Florida Criminal Law Opinions

ANDREW URBAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-1022

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

JULY TERM 2010
Opinion filed: October 29, 2010.

Appeal from the Circuit Court for Seminole County, Marlene M. Alva, Judge.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

JACOBUS, J.

Andrew Urban appeals his convictions and sentences for possession of cannabis and two counts of driving under the influence. Urban raises two issues. First, he argues the trial court erred by denying his motion for judgment of acquittal. We find the evidence was sufficient and reject this argument without further comment. In his second issue, Urban contends the trial court applied the wrong version of Florida’s

Page 2

Youthful Offender Act at sentencing. The State concedes error on this point. On the date of Urban’s offenses, September 27, 2008, a trial court could impose a youthful offender sentence under section 958.04(1)(b), Florida Statutes, if the defendant committed the crime before his 21st birthday. On October 1, 2008, section 958.04(1)(b) was amended to require the defendant to be under the age of 21 at the time of sentencing. As luck would have it, Urban was under 21 on the date he committed the crimes, but over 21 on the date of sentencing. The trial court declined to consider a youthful offender sentence, retroactively applying the amended version of the statute. This was error. The trial court should have applied the statute in effect on the date of the crime, not the date of sentencing. See Postell v. State, 971 So. 2d 986 (Fla. 5th DCA 2008); Allen v. State, 383 So. 2d 674 (Fla. 5th DCA 1980).

Therefore, we affirm Urban’s convictions but reverse his sentences. We remand for resentencing under the correct version of the youthful offender statute. We do not hold that Urban should be sentenced as a youthful offender, only that the trial court must consider a youthful offender sentence at a de novo sentencing hearing on remand.

AFFIRMED in part; REVERSED in part and REMANDED with instructions.

MONACO, C.J., and ORFINGER, J., concur.

CHARLES MENDENHALL, Petitioner.
v.
STATE OF FLORIDA, Respondent.

No. SC09-400
No. 5D07-1059
No. 5D07-3616

Supreme Court of Florida

October 28, 2010

James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida,

for Petitioner

Bill McCollum, Attorney General, Tallahassee, Florida, Mary G. Jolley, Wesley Heidt and Jeffrey R. Casey, Assistant Attorneys General, Daytona Beach, Florida,

for Respondent

PER CURIAM.

Mendenhall seeks review of the decision of the Fifth District Court of Appeal in Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008), on the ground that it expressly and directly conflicts with the decisions of the Second District Court of Appeal in Sousa v. State, 976 So. 2d 639 (Fla. 2d DCA 2008), and the First District Court of Appeal in Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005).¹

This case concerns section 775.087, Florida Statutes (2004)—commonly known as the “10-20-Life” statute—specifically section 775.087(2)(a)(3), which

Page 2

provides that defendants who discharge a firearm during the commission of certain enumerated crimes, including murder and attempted murder, and inflict death or great bodily harm as the result of the discharge shall be sentenced to a “minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.”² The issue before this Court is whether the mandatory minimum terms of twenty-five years to life provide the trial judge with discretion to impose a mandatory minimum of twenty-five years to life without regard to the statutory maximum for the crime contained in section 775.082, Florida Statutes (2004).

For the reasons explained below, we hold that the specific provisions of the 10-20-Life statute with regard to mandatory minimums control over the general provisions of section 775.082 regarding statutory maximums. This reading of the statute avoids rendering part of the statute mere surplusage and effectuates the Legislature’s intent to punish those offenders who possess or use firearms to the fullest extent of the law. Thus, we conclude that the trial court has discretion under section 775.087(2)(a)(3) to impose a mandatory minimum of twenty-five years to life, even if that mandatory minimum exceeds the statutory maximum provided for in section 775.082.

Page 3

Accordingly, we approve the Fifth District’s decision in Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008), and disapprove the decisions of the Second District in Sousa v. State, 976 So. 2d 639 (Fla. 2d DCA 2008), and the First District in Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005). We also disapprove the decisions of the Fourth District Court of Appeal in Collazo v. State, 966 So. 2d 429 (Fla. 4th DCA 2007), Thurston v. State, 984 So. 2d 1290 (Fla. 4th DCA 2008), Leary v. State, 980 So. 2d 622 (Fla. 4th DCA 2008), and Johnson v. State, 17 So. 3d 847 (Fla. 4th DCA 2009), to the extent that those decisions hold that section 775.087(2)(a)(3) does not vest discretion in the trial judge to impose a mandatory minimum of twenty-five years to life without regard to the statutory maximum for the crime.³

FACTSCharles Mendenhall was charged with attempted first-degree murder with a firearm. At the conclusion of trial, the jury found Mendenhall guilty of the lesser included offense of attempted second-degree murder with a firearm, a second-degree felony. § 782.04(2), Fla. Stat. (2004); § 777.04(4)(c), Fla. Stat (2004). The

Page 4

jury also found that during the commission of the offense, Mendenhall was in possession of a firearm, discharged a firearm, and inflicted serious bodily injury.

On March 2, 2007, the trial court entered a judgment in accordance with the jury’s verdict and sentenced Mendenhall under Florida’s 10-20-Life statute, imposing a sentence of thirty-five years’ imprisonment, with a thirty-five-year mandatory minimum. Mendenhall then filed a motion to correct sentencing error, asserting, inter alia, that his sentence was illegal because under the plain language of the 10-20-Life statute, the maximum sentence he could receive was thirty years with a twenty-five-year mandatory minimum. The trial court granted Mendenhall’s motion in part, concluding that it was required to reduce Mendenhall’s sentence to a term of thirty years’ imprisonment, with a twenty-five-year mandatory minimum.

A brief overview of the statutory scheme is helpful to provide context for the facts of this case. Because Mendenhall used a firearm during the commission of the offense, his conviction was reclassified from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2004). The maximum sentence for a second-degree felony is fifteen years, and the maximum sentence for a first-degree felony is thirty years. § 775.082(3)(b)-(c), Fla. Stat. (2004). The 10-20-Life statute provides for mandatory minimum sentences for certain enumerated offenses, including attempted murder, where a defendant possesses a firearm

Page 5

(minimum term of imprisonment of either three years or ten years, depending on the offense), discharges a firearm (minimum term of imprisonment of twenty years), or discharges a firearm and as the result of the discharge, inflicted death or great bodily harm (“minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison”). § 775.087(2)(a)(1)-(3), Fla. Stat. (2004). Section 775.082(3)(b)—which is not part of the 10-20-Life statute—provides that a person convicted of a first-degree felony must be punished by “a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.” § 775.082(3)(b), Fla. Stat. (2004).

Mendenhall appealed to the Fifth District Court of Appeal, asserting that “the jury did not make a finding that ‘death or great bodily harm was inflicted on any person.’ ” Mendenhall, 999 So. 2d at 666. The Fifth District rejected this argument because the jury’s use of the term “serious bodily injury” was synonymous with “great bodily harm.” Id. at 667. That issue is not before the Court in this case.

The State cross-appealed the reduction of the sentence, contending that the original sentence of thirty-five years’ imprisonment with a thirty-five-year mandatory minimum was legal and, accordingly, the trial court erred in granting the motion to correct sentence. Id. The Fifth District agreed with the State,

Page 6

holding that its “review of cases which have similar facts to those presented here[led it] to conclude that the trial court’s original sentence of 35 years’ imprisonment, with a 35-year mandatory minimum, was legal.” Id. at 667. The court outlined the pertinent parts of the 10-20-Life statute, emphasizing a portion of the first sentence of subsection (2)(c):

Pertinent parts of section 775.087 of the Florida Statutes provide as follows:
775.087. Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence
(2)(a) 1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
a. Murder;
3. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.
(c) If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the

Page 7

Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section.

Id at 667-68 (quoting §§ 775.087(2)(a)(1), (3), 775.087(2)(c), Fla. Stat. (2004)).

In arriving at its conclusion that the original thirty-five-year sentence and mandatory minimum were legal, the Fifth District noted that this Court affirmed a defendant’s life sentence under factual circumstances similar to those presented in the instant case in Sanders v. State, 944 So. 2d 203 (Fla. 2006). Mendenhall, 999 So. 2d at 668. The Fifth District then stated:

Importantly, upon review, our Supreme Court affirmed the Second District’s opinion [in Sanders! regarding their analysis of the penalty for a lesser included offense and, in dicta, the Court made the following observation:The maximum sentence for the core offense of attempted first-degree murder is thirty years, while the sentence for attempted second-degree murder without any enhancements is fifteen years. However, with the application of the ten-twenty-life statute, the resulting maximum sentence for both attempted first-and second-degree murder while discharging a firearm and inflicting great bodily harm is the same—life.

Id (quoting Sanders, 944 So. 2d at 205).

Page 8

Finally, the Fifth District found additional support in its earlier decision in Brown v. State, 983 So. 2d 706 (Fla. 5th DCA 2008), in which it had "recognized that the imposition of a mandatory minimum sentence in excess of the maximum penalty was indeed permissible based upon special findings such as those found in this case." Mendenhall, 999 So. 2d at 669. The Fifth District affirmed the judgment, but reversed the sentence and remanded for reimposition of the original sentence of thirty-five years' imprisonment with a thirty-five-year mandatory minimum. Id.

The Fifth District's decision conflicts with the Second District's decision in Sousa v. State, 976 So. 2d 639 (Fla. 2d DCA 2008), and the First District's decision in Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005), both of which involved defendants convicted of attempted second-degree murder reclassified as a first-degree felony under the 10-20-Life statute.

The Second District in Sousa held that section 775.087(2)(a)(3) does not override the language in section 775.082(3)(b) that provides for a thirty-year sentence. 976 So. 2d at 640. The Second District reasoned as follows:

Mr. Sousa... was subject to section 775.087(2)(a)(3) of the 10/20/life statute, which required that he be sentenced "to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." It could be argued that the language of this statute overrides the language in section 775.082(3)(b) that provides for a thirty-year sentence. The case law, however, interprets these statutes in favor of the defendant, so that the maximum term of years is thirty. See Yasin v. State, 896 So. 2d 875 (Fla. 5th DCA

Page 9

2005); Badia v. State, 770 So. 2d 300 (Fla. 3d DCA 2000); see also Sanders v. State, 912 So. 2d 1286, 1292 (Fla. 2d DCA 2005) (describing maximum penalty in appendix to opinion).

Id. at 640 (footnote omitted).

The First District in Wilson also held that the mandatory minimum term provided for in section 775.087(2)(a)(3) does not override the statutory maximum of thirty years in 775.082(3)(b). The court reasoned that "[a]ppellant is subject to a mandatory minimum sentence of 25 years pursuant to section 775.087(2)(a)3, Florida Statutes (2003)…. Notwithstanding the minimum mandatory term, the maximum sentence the trial court properly may impose is a sentence of 30 years.” 898 So. 2d at 192-93.

ANALYSISThe conflict issue before this Court is whether, under the 10-20-Life statute, specifically section 775.087(2)(a)(3), a trial court can sentence a defendant to a mandatory minimum sentence that exceeds the statutory maximum sentence provided for in section 775.082. More specifically, the issue in this case is whether the mandated “minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison” under section 775.087(2)(a)(3) gives the trial court the discretion to impose a sentence anywhere within the range of twenty-five years to life, even if that sentence exceeds the statutory maximum of thirty years provided for under section 775.082(2)(c).

Page 10

Because the conflict issue involves the interpretation of the 10-20-Life statute, resolving this issue requires an analysis of the language of the statute to discern legislative intent. In analyzing this issue, we first set forth the applicable statutory provisions. We next analyze the language and stated purpose of the statute to determine whether the statute provides trial courts with the discretion to impose a mandatory minimum sentence anywhere in the range of twenty-five years to life under section 775.087(2)(a)(3), even if that sentence exceeds the statutory maximum provided for in section 775.082. We conclude that it does.

The 10-20-Life StatuteSection 775.087, Florida Statutes, commonly referred to as the 10-20-Life statute, provides for mandatory minimum sentences for offenders who possess or use a firearm in some manner during the commission of certain crimes. As explained by this Court, in enacting the 10-20-Life statute, the Legislature “has very clearly mandated that it is the policy of this State to deter the criminal use of firearms.” McDonald v. State, 957 So. 2d 605, 611 (Fla. 2007). “This mandate is underscored by the widespread promulgation of the 10-20-LIFE law beyond mere statutory notice, through television commercials, posters, and other forms of advertising.” Id.

To that end, the statute requires the imposition of a mandatory minimum sentence where a firearm is possessed or used during the commission of certain

Page 11

enumerated crimes, including murder and attempted murder. § 775.087(2)(a)(1)(a), Fla. Stat. (2004). The mandatory minimum sentences differ depending on whether the defendant possessed the firearm, discharged the firearm, or discharged the firearm and inflicted death or great bodily harm. If the defendant possessed a firearm during the commission of an enumerated offense, he or she “shall be sentenced to a minimum term of imprisonment of 10 years” unless the enumerated offense is aggravated assault, possession of a firearm by a felon, or burglary of a conveyance; if so, the defendant “shall be sentenced to a minimum term of imprisonment of 3 years.” § 775.087(2)(a)(1), Fla. Stat. If the defendant discharged a firearm during the commission of an enumerated offense, he or she “shall be sentenced to a minimum term of imprisonment of 20 years.” § 775.087(2)(a)(2), Fla. Stat. The statutory provision at issue in this case involves the situation where the defendant discharged a firearm that resulted in death or great bodily harm, and provides:

Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

Page 12

§ 775.087(2)(a)(3), Fla. Stat. (emphasis added).⁴

Subsection (2)(b) provides that the mandatory minimum sentences in subsections (2)(a)(1), (2)(a)(2), and (2)(a)(3) do not prevent a court from imposing a longer sentence as authorized by law in addition to the mandatory minimum sentence and that the defendant is not eligible for early release or gain time prior to serving the minimum sentence:

Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence, or from imposing a sentence of death pursuant to other applicable law. Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not authorize a court to impose a lesser sentence than otherwise required by law.
Notwithstanding s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, prior to serving the minimum sentence.

§ 775.087(2)(b), Fla. Stat.

Page 13

Subsection (2)(c) addresses the situation where the minimum terms of imprisonment mandated in subsection (2) either exceed or are less than the sentences that could be imposed under section 775.082, section 775.084, Florida Statutes (2004), or the Criminal Punishment Code in chapter 921, Florida Statutes (2004):

If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section.

§ 775.087(2)(c), Fla. Stat.

Subsection (2)(d) clearly states that it is the intent of the Legislature to punish those offenders who possess or use firearms to the fullest extent of the law:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

§ 775.087(2)(d), Fla. Stat.

Interpretation of the 10-20-Life StatutePage 14

Questions of statutory interpretation are subject to de novo review. Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 194 (Fla. 2007). “A court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So. 3d 101, 106 (Fla. 2008). “As with any case of statutory construction, [the Court must begin] with the ‘actual language used in the statute.’ ” Heart of Adoptions, Inc., 963 So. 2d at 198 (quoting Borden v. East-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006)). “This is because legislative intent is determined primarily from the statute’s text.” Id. This Court has explained:

[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning… the statute must be given its plain and obvious meaning. Further, we are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power. A related principle is that when a court interprets a statute, it must give full effect to all statutory provisions. Courts should avoid readings that would render part of a statute meaningless.

Velez v. Miami-Dade Cnty. Police Dep’t, 934 So. 2d 1162, 1164-65 (Fla. 2006) (quotation marks and citations omitted).

Section 775.082(3)(b), which is in the general sentencing statute, provides the maximum sentence for a first-degree felony: “For a felony of the first degree, by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.”

Page 15

However, section 775.087(2)(a)(3) clearly states: “[T]he convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” Section 775.087(2)(c) makes reference to section 775.082 and states that the mandatory minimum, when it exceeds the statutory maximum, must be imposed.

In resolving any perceived conflict between the statutory maximum in the general sentencing statute and the mandatory minimum range of twenty-five years to life, we conclude that the specific provisions of section 775.087(2)(a)(3) prevail over the general provisions of the 775.082 regarding statutory maximums. We have previously stated:

[I]t is a well settled rule of statutory construction… that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. In this situation “the statute relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any.”

McDonald, 957 So. 2d at 610 (quoting Adams v. Culver, 111 So. 2d 665, 667 (Fla. 1959)). Under this principle of statutory construction, section 775.087(2)(a)(3), which specifically addresses a situation where a defendant, in the course of certain enumerated felonies, discharges a firearm and, as a result of the discharge, death or great bodily harm is inflicted upon any person, prevails over section 775.082(3)(b), which is a general sentencing statute and provides the sentences for all first-degree

Page 16

felonies. Section 775.082 covers sentencing for all crimes, including those involving the use of a firearm. The 10-20-Life statute, on the other hand, addresses the mandatory minimum sentences for enumerated crimes involving the use or possession of a firearm.

The application of this statutory construction principle here is analogous to our analysis in McDonald, 957 So. 2d at 610-11, wherein we held that the specific provisions of the 10-20-Life statute control over the more general provisions of the Prison Releasee Reoffender (PRR) statute:

The PRR statute is part of the general sentencing provision of chapter 775. It provides the mandatory minimum sentence for anyone deemed a prior releasee reoffender within the general sentencing scheme. See § 775.082, Fla. Stat. (2000). In other words, the PRR statute covers sentencing for all crimes, including those involving the use of a firearm. On the other hand, the 10-20-LIFE statute addresses the mandatory minimum sentence for the use or possession of a firearm in some manner during the commission of a specified crime. See § 775.087(2)(c). Accordingly, the Fourth District properly concluded that the more specific provisions contained in the 10-20-LIFE statute should control over the more general provisions of the PRR statute….

Our reading of the statute is further supported by the application of the “elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.” Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 2009) (quoting Gulfstream Park Racing Ass’n v. Tampa Bay Downs, Inc., 948 So. 2d 599, 606

Page 17

(Fla. 2006)). To adopt Mendenhall’s interpretation of the statute would render the phrase “and not more than a term of imprisonment of life in prison” meaningless and mere surplusage. We reject this interpretation and adopt the reasoning of Judge Farmer’s dissent in Collazo v. State, 966 So. 2d 429, 433 (Fla. 4th DCA 2007):

In subsection (a)3 the words not less than 25 years mean that more than 25 years is possible. But the majority limits the mandatory part to not more than 25 years, making the words not less than 25 years and not more than life superfluous.
The majority seem to read into the provision a punctuation mark after the words 25 years. There is no mark at that point; the clause presses on without any break. Then the words not less than 25 years are followed immediately by the conjunction and which is not preceded by a comma, semi-colon or period. If there had been some such punctuation, one might conceivably read the sentence as containing two separate thoughts: (1) a mandatory period of 25 years; (2) discretion to make the total sentence life. As actually written and punctuated, however, the plain meaning is to conjoin not less than 25 years with the words not more than a term of life into a single thought. As thus written, the mandatory period can be anything from life down to 25 years.

Finally, this reading of the statute not only recognizes that specific statutes control over general statutes and that words in a statute should not be rendered meaningless, but also effectuates the Legislature’s clearly stated and unambiguous intent to punish offenders who possess or use firearms “to the fullest extent of the law.” § 775.087(2)(d), Fla. Stat. (2004). The Legislature, in enacting the 10-20-Life statute, “very clearly mandated that it is the policy of this State to deter the criminal use of firearms.” McDonald, 957 So. 2d at 611. This policy is

Page 18

underscored by the statement of legislative intent contained in the act enacting section 775.087(2)(a)(3):

WHEREAS, Florida ranks among the most violent states in the nation, and
WHEREAS, in 1975 the Florida Legislature enacted legislation requiring a minimum mandatory sentence of three years in prison for possessing a gun during the commission or attempted commission of a violent felony, and
WHEREAS, the Legislature enacted this mandatory penalty in order to protect citizens from criminals who are known to use guns during the commission of violent crimes, and
WHEREAS, the FBI reports that among persons identified in the felonious killings of law enforcement officers in 1997, 71% had prior criminal convictions, and one of every four were on probation or parole for other crimes when they killed the officers, and
WHEREAS, criminals who use guns during the commission of violent crimes pose an increased danger to the lives, health, and safety of Florida’s citizens and to Florida’s law enforcement officers who daily put their lives on the line to protect citizens from violent criminals, and
WHEREAS, the Legislature intends to hold criminals more accountable for their crimes, and intends for criminals who use guns to commit violent crimes to receive greater criminal penalties than they do today, and
WHEREAS, the Legislature intends that when law enforcement officers put themselves in harm’s way to apprehend and arrest these gun-wielding criminals who terrorize the streets and neighborhoods of Florida, that these criminals be sentenced to longer mandatory prison terms than provided in current law, so that these offenders cannot again endanger law enforcement officers and the public, and
WHEREAS, there is a critical need for effective criminal justice measures that will ensure that violent criminals are sentenced to prison terms that will effectively incapacitate the offender, prevent future crimes, and reduce violent crime rates, and
WHEREAS, it is the intent of the Legislature that criminals who use guns to commit violent crimes be vigorously prosecuted and that the state demand that minimum mandatory terms of imprisonment be imposed pursuant to this act, NOW, THEREFORE,

Page 19

Be It Enacted by the Legislature of the State of Florida…. Ch. 99-12, at 537, Laws of Fla. Because the Legislature clearly intended that those “who use guns to commit violent crimes be vigorously prosecuted and that the state demand that minimum mandatory terms of imprisonment be imposed pursuant to this act,” id., we conclude that the Legislature intended for trial courts to have discretion to impose a mandatory minimum under section 775.087(2)(a)(3) in the range of “a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” § 775.087(2)(a)(3), Fla. Stat. (2004).

Mendenhall contends that the statute is ambiguous and that this Court should apply the rule of lenity. There is certainly nothing ambiguous about the statute’s language that “the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” § 775.087(2)(a)(3), Fla. Stat. Regardless, we have previously recognized “that the rule of lenity is a canon of last resort.” Kasischke v. State, 991 So. 2d 803, 814 (Fla. 2008).

We thus conclude that under section 775.087(2)(a)(3), the trial court has discretion to impose a mandatory minimum within the range of twenty-five years to life. Consequently, we conclude that Mendenhall was properly sentenced to thirty-five years with a thirty-five-year mandatory minimum, notwithstanding the

Page 20

statutory maximum of thirty years contained in section 775.082 for Mendenhall’s offense.

CONCLUSIONFor the foregoing reasons, we approve the Fifth District’s decision in Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008), and disapprove the decisions of the Second District in Sousa v. State, 976 So. 2d 639 (Fla. 2d DCA 2008), and the First District in Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005). We also disapprove the decisions of the Fourth District in Collazo v. State, 966 So. 2d 429 (Fla. 4th DCA 2007), Thurston v. State, 984 So. 2d 1290 (Fla. 4th DCA 2008), Leary v. State, 980 So. 2d 622 (Fla. 4th DCA 2008), and Johnson v. State, 17 So. 3d 847 (Fla. 4th DCA 2009), to the extent that those decisions hold that section 775.087(2)(a)(3) does not vest discretion in the trial judge to impose a mandatory minimum of twenty-five years to life without regard to the statutory maximum for the crime.

It is so ordered.

CANADY, C.J., and LEWIS, POLSTON, and LABARGA, JJ., concur. PARIENTE, J., dissents with an opinion, in which QUINCE and PERRY, JJ., concur.

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

Page 21

PARIENTE, J., dissenting.

I respectfully dissent to the majority’s conclusion that the sentences provided in section 775.087 always trump the statutory maximums in other statutes.

Although popularly known as the 10-20-Life statute, section 775.087 is actually entitled “Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.” (Emphasis added.) The very title indicates that the statute is not meant to impose new statutory maximums for gun-related offenses, but rather the intent was to mandate significant statutory minimum sentences. The answer to the statutory construction question—whether section 775.087 always trumps the statutory maximums of 775.082—cannot be resolved by a plain reading of 775.087(2)(a). The Legislature could have easily indicated that section 775.087(2)(a)(3) overrode all statutory maximums provided in 775.082. It did not.

Rather, reading 775.082 and 775.087 together, as the doctrine of in pari materia requires and as the Legislature indicates in section 775.087(2)(c), leads to the conclusion that the statutory minimum sentence for a crime in which a firearm is discharged is governed by section 775.087, but that the statutory maximums provided in 775.082 are not overridden unless the statutory maximums of 775.082 are less than the statutory minimums of section 775.087. See § 775.087(2)(c), Fla.

Page 22

Stat. (2004). Simply put, section 775.087, when read together with section 775.082, does not specify overriding of the statutory maximums in all cases and does not provide that the range provided for in section 775.087(2)(a)(3) wholly nullifies any statutory maximum. Therefore, given this ambiguity, the rule of lenity should be applied, and the statute should be construed most favorably to Mendenhall.

ANALYSIS“The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.” Fla. Dep’t of State v. Martin, 916 So. 2d 763, 768 (Fla. 2005). Similarly, “related statutory provisions must be read together to achieve a consistent whole, and… „[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” Larimore v. State, 2 So. 3d 101, 106 (Fla. 2008) (quoting Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 199 (Fla. 2007)).

The issue in this case is one of statutory construction that involves the interplay between section 775.087(2), which authorizes mandatory minimum sentences for certain crimes, and section 775.082, which authorizes a maximum sentence of thirty years for the conviction of a first-degree felony. Section 775.087

Page 23

is meant to be read together with other sentencing statutes such as section 775.082 and is not its own self-contained sentencing scheme. The statute clearly contemplates interplay between itself and other statutes. The Legislature even provided guidance as to how the statute should be read together with section 775.082. See § 775.087(2)(c), Fla. Stat. (2004) (explicitly addressing situations where the mandatory minimum is either more or less than the statutory maximums provided for elsewhere and specifically referencing section 775.082). Thus, we must read section 775.087(2)(a)(3) together with sections 775.087(2)(c) and 775.082.

The majority ignores the principle of reading the statutes together and instead utilizes the statutory construction principle that a specific statute controls over the general. However, the statutes address different things and are meant to be read together as indicated by section 775.087(2)(c)—section 775.087(2) specifies mandatory minimums whereas section 775.082 specifies statutory maximums. Simply put, although section 775.087 is specific as to statutory minimums, it is not specific as to statutory maximums.

Under section 775.087(2)(c), if the “minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed.” §

Page 24

775.087(2)(c), Fla. Stat. (emphasis added). On the other hand, if the “mandatory minimum terms of imprisonment… are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section.” Id. (emphasis added). Based on section 775.087(2)(c), the minimum sentence to be imposed under 775.087 does not trump the statutory maximum provided in 775.082 unless the minimum sentence exceeds the statutory maximum. It does not change the statutory maximum or negate it all together.

This section is in keeping with the title of the chapter, which addresses minimum sentences. The title of a chapter is properly considered in determining legislative intent. Horowitz v. Plantation Gen. Hosp. Ltd. P’ship, 959 So. 2d 176, 182 (Fla. 2007) (considering the title of the chapter as reflecting the Legislature’s intent); see also Larimore, 2 So. 3d at 112 (“[T]he title of an act is properly considered in determining legislative intent.”). Here, the title of the chapter evinces a legislative intent to mandate significant statutory minimum sentences, not new statutory maximums irrespective of the statutory maximums provided for elsewhere.

This brings us to the interpretation of the statutory minimum terms provided in section 775.087(2)(a). The first two subsections, (2)(a)(1) and (2)(a)(2), are

Page 25

clear and unambiguous and provide for statutory minimum terms of a specific number of years. Subsection (2)(a)(1) provides that a defendant convicted of possession of a firearm by a felon “shall be sentenced to a minimum term of imprisonment of 10 years” and in certain other circumstances to a “minimum term of imprisonment of 3 years.” Subsection (2)(a)(2) provides that a person who is convicted of certain felonies or attempted felonies and uses the firearm during the course of the commission of the felony “shall be sentenced to a minimum term of imprisonment of 20 years.” Therefore, when subsections (2)(a)(1) and (2)(a)(2) are read in conjunction with subsection (2)(c) and section 775.082, it is easy to determine in what circumstances the minimum term specified is greater than the statutory maximum or when the mandatory minimum is less than the statutory maximum. It is also clear as to how many years should be imposed or included as the mandatory minimum.

The clash between the statutory maximums of section 775.082 and the minimum sentences of 775.087 occurs when applying section 775.087(2)(a)(3), which is the only subsection to provide for a range. Subsection (2)(a)(3) provides that a person who discharges a firearm causing death or great bodily harm “shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” While it is clear that a sentence of at least twenty-five years must be imposed as a minimum in all

Page 26

circumstances, it is not clear whether the trial court can impose a minimum term in excess of the statutory maximum of thirty years in this case.

An examination of the language of section 775.087(2)(c) reveals another ambiguity: the phrase “the mandatory minimum sentence” as used in subsection (2)(c) and as applied to subsection (2)(a)(3) is ambiguous because it is not clear whether it refers only to the absolute minimum sentence that must be imposed (twenty-five years) or to the entire range. Further, by explicitly stating that statutory maximums in other statutes are trumped by the section 775.087 statutory minimums when the minimum sentence exceeds the statutory maximums, the Legislature failed to address what occurs where there is a range of sentencing options, as there is in section 775.087(2)(a)(3). In this case, the statutory maximum is thirty years, whereas the sentencing range is twenty-five to life. Whether the range is meant to be considered as exceeding the statutory maximum is unclear.

The majority concludes that the trial court has discretion to impose a mandatory minimum sentence of twenty-five years to life, irrespective of the maximum penalty on the underlying charge under section 775.082. This interpretation nullifies the statutory maximums of section 775.082, without any indication that the Legislature intended for this nullification to occur.

Page 27

Because the statute is ambiguous as to legislative intent regarding statutory maximums, I conclude that it must be construed most favorably to Mendenhall. As this Court has stated, the rule of lenity “is not just an interpretive tool, but a statutory directive. The rule requires that „[a]ny ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense.’ ” Kasischke v. State, 991 So. 2d 803, 814 (Fla. 2008) (citation omitted) (quoting State v. Byars, 823 So. 2d 740, 742 (Fla. 2002)). If the Legislature intended to allow trial courts the discretion to impose a mandatory minimum sentence of life even if the statutory maximum is much less, it was incumbent upon the Legislature to make that intent clear.

In my view, this reading of the statute does not render the phrase “and not more than… life” mere surplusage as the majority contends. Here, Mendenhall was convicted of a second-degree felony that was then enhanced to a first-degree felony, which carries a maximum sentence of thirty years. Thus, the phrase “and not more than… life” would not apply to this case. However, the majority overlooks situations where the phrase would apply. For example, if a defendant is convicted of a first-degree felony that is enhanced by the 10-20-Life statute to a life felony, see § 775.087(1)(a), Fla. Stat., the maximum sentence would then be life imprisonment. See § 775.082(3)(a)(3), Fla. Stat. (2004). In that situation, sections 775.087(2)(a)(3) and (2)(c) would allow the trial court to impose a

Page 28

mandatory minimum sentence up to life. Accordingly, while the phrase “and not more than… life” would not apply in this case, there are situations in which it would apply. Thus, this interpretation of the statute does not render the phrase meaningless.

Further, while section 775.087(2)(d) provides that the Legislature intends that offenders who possess and use firearms should be punished “to the fullest extent of the law,” that same section also expresses its intent that the “minimum terms of imprisonment shall be imposed.” (Emphasis added.) Once again, this evinces an intent for courts to impose the minimum terms of imprisonment provided for in section 775.087(2)(a), even those that might be in excess of a statutory maximum in another statute. But the statutory scheme does not evince an intent to set new statutory maximums to override all other statutory maximums.

We should err on the side of applying the rule of lenity when the alternative construction of an ambiguous statute would result in such harsh consequences. Mendenhall was convicted of a second-degree felony, which carries a maximum sentence of fifteen years. See § 775.082(3)(c), Fla. Stat. (2004). His conviction was enhanced by section 775.087(1)(b) to a first-degree felony, the maximum sentence for which is thirty years. See § 775.082(3)(b), Fla. Stat. Further application of section 775.087 requires an absolute minimum mandatory sentence of twenty-five years to be imposed, meaning that Mendenhall will serve at least

Page 29

twenty-five years because the 10-20-Life statute provides that a defendant is not eligible for gain-time or any other form of discretionary early release (other than pardon or executive clemency) prior to serving the minimum sentence.

Under my view of section 775.087(2)(a)(3), the sentence for Mendenhall’s offense after both enhancements increases from a maximum of fifteen years to a maximum sentence of thirty years with a mandatory minimum sentence between twenty-five and thirty years. This is already significantly harsher than his original, unenhanced sentence of fifteen years and is in keeping with the legislative intent expressed in subsection (2)(d) that offenders who possess and use firearms should be punished “to the fullest extent of the law.” To allow a trial judge unfettered discretion to impose a mandatory minimum sentence of life for an offense such as Mendenhall’s without express legislative authorization, but rather by judicial construction of the statute, works an injustice and is contrary to our doctrine of separation of powers.

CONCLUSIONThe Legislature has not evinced a clear intent for section 775.087(2)(a)(3) to override all statutory maximums. Rather, the Legislature gave guidance as to how section 775.087(2)(a)(3) should be read together with section 775.082, which is a clear indication that statutory maximums were meant to play some role in

Page 30

sentencing under the statute. See § 775.087(2)(c), Fla. Stat. (2004). However, this guidance is simply unhelpful and ambiguous when applying subsection (2)(a)(3).

Applying the rule of lenity to this ambiguous statute requires us to interpret it most favorably to Mendenhall. If the Legislature intended to allow trial courts the discretion to impose a minimum mandatory sentence of life even if the statutory maximum is much less, it was incumbent upon the Legislature to make that intent clear.

For all of these reasons, I respectfully dissent.

QUINCE and PERRY, JJ., concur.

Application for Review of the Decision of the District Court of Appeal-Direct Conflict of Decisions

Fifth District-Case No. 5D07-1059 and 5D07-3616

(Lake County)

——–

Notes:

^1.. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

^2.. The 2004 version of the 10-20-Life statute is identical to the current 2009 version of the statute.

^3.. The Fifth District certified conflict with Collazo, Johnson, Thurston, and Leary in a case concerning the same issue as this case, which is pending review in this Court. See Booth v. State, 18 So. 3d 1142 (Fla. 5th DCA 2009) (pending currently in this Court as Case No. SC09-1832).

^4.. Section 775.087(2)(a)(3) was added to the statute in 1999, when the Legislature increased the minimum sentence from three years for all crimes where the defendant possessed a firearm to ten years for possession of a firearm, twenty years for discharging a firearm, and “not less than 25 years and not more than a term of imprisonment of life in prison” for crimes in which the defendant discharged a firearm and the discharge resulted in death or great bodily harm. See ch. 99-12, §1, Laws of Fla. The Legislature also added the statement of intent contained in section 775.087(2)(d). See id.
——–

Jamar Alonzo, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-2014
No. 07-10723

Third District Court of Appeals

July Term, A.D., 2010
Opinion filed October 27, 2010.

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

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

Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

Before RAMIREZ, C.J., and WELLS and LAGOA, JJ.

LAGOA, J.

Jamar Alonzo (“Alonzo”) appeals from his conviction for possession of a firearm by a convicted felon. Because the trial court properly followed the

Page 2

analysis as required by Melbourne v. State, 679 So. 2d 759 (Fla. 1996), we affirm Alonzo’s conviction.

On appeal, Alonzo argues that during jury selection the trial court erred in allowing the State’s peremptory strike of prospective juror Harbin, an African-American, over the objection of defense counsel without the trial court making a specific finding that the State’s reason for the strike was genuine. Alonzo contends that the following exchange entitles him to a new trial:

THE STATE: The State will use its first premptory [sic]. DEFENSE COUNSEL: We object. For the record, Ms. Harbin is an African American. The defense would like a race-neutral reason.
THE STATE: On her questionnaire she has family members who were accused of the crimes of robbery and drugs.
THE COURT: She is also a corrections officer. I think that is race-neutral.
DEFENSE COUNSEL: With respect to the pretextual nature of that, the state accepted Juror No. 4, Ms. Brown, who has also got family members who have been accused of crimes.¹

Page 3

THE COURT: Well, I can see from the face of the questionnaire Ms. Harbin is a law enforcement officer, a corrections officer, and I think that is a sufficiently reasonable basis, so I am going to allow the State’s preemptory [sic]. That brings us up to No. 10, Mr. Rotenberg.

I. GUIDELINES FOR PEREMPTORY CHALLENGES

The Supreme Court instructs reviewing courts to be mindful of the following two principles when applying the Melbourne guidelines. “First, peremptories are presumed to be exercised in a nondiscriminatory manner. Second, the trial court’s decision turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.” Melbourne, 679 So. 2d at 764-65; see also Murray v. State, 3 So. 3d 1108, 1120 (Fla. 2009); Hoskins v. State, 965 So. 2d 1, 7 (Fla. 2007); Rodriguez v. State, 753 So. 2d 29, 40 (Fla. 2000).

The following guidelines govern a challenge to a peremptory strike:

(1) the objecting party must make a timely objection, must show that the venireperson is a member of a distinct racial group, and must request that the court ask the striking party the reasons for the strike; (2) if step (1) is met, the court must ask the proponent of the strike to explain the reason for the strike; (3) if the reason given is facially race-neutral and the court believes that given all

Page 4

the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained.

Rodriguez, 753 So. 2d at 40 (citing Melbourne, 679 So. 2d at 764). “Throughout this process, the burden of persuasion never leaves the opponent of the strike…. Melbourne, 679 So. 2d at 764.

In applying the third step, the trial court must determine the racial neutrality of the proffered reason, and satisfy itself that the explanation is not a pretext. Davis v. State, 691 So. 2d 1180, 1183 (Fla. 3d DCA 1997). “The genuineness of the explanation is the yardstick with which the trial court will determine whether or not the proffered reason is pretextual.” Id. The trial court may consider all relevant circumstances surrounding the strike in determining whether the proffered reason for the strike is genuine. See Melbourne, 679 So. 2d at 764 n.8. As the Supreme Court explained in Rodriguez:

In step (3), the court’s focus is on the genuineness and not the reasonableness of the explanation. Further, the relevant circumstances that the court is to consider in determining whether the explanation is pretextual include such factors as the racial makeup of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged venireperson; or singling out the venireperson for special treatment.

753 So. 2d at 40.

II. ANALYSIS

We begin our analysis by finding that the reason provided by the State for

Page 5

striking Harbin was facially race-neutral. Indeed, Alonzo does not argue that the State’s reason for striking Harbin was a pretext for racial discrimination.² Instead, Alonzo solely argues that the trial court failed to engage in a genuineness analysis, and therefore erred in allowing the State’s strike. We disagree. Based on this record, we cannot say that the trial court’s ruling was clearly erroneous.

Here, the record indicates that the trial court engaged in a genuineness analysis by focusing on the additional factor that Harbin was a corrections officer, and therefore not similarly situated to Brown, the comparator challenged by the State. Specifically, when defense counsel pointed out that Brown also had family members who had been accused of crimes, the trial court responded “[w]ell… Ms. Harbin is a law enforcement officer, a corrections officer, and I think that is a sufficiently reasonable basis.” This statement indicates that, as required by Melbourne, the trial court was considering all of the circumstances surrounding the strike-in other words, the additional fact that Harbin was a corrections officer.

Page 6

That additional race-neutral reason meant that Harbin and Brown were not similarly situated and the trial court appropriately considered whether or not the State’s reason for exercising its strike was genuine.

Step 3 of the Melbourne analysis does not require the trial court to state that it found the State’s proffered reason for the strike to be “genuine.” Indeed, there “is no requirement that the trial court specifically use the word ‘genuine.’” See Hoskins, 965 So. 2d at 12 (holding trial court applied correct standard in step 3 analysis even though trial court used terms “neutral and reasonable” as these terms are synonymous with word “genuine”); see also Johnson v State, 706 So. 2d 401, 404 (Fla. 3d DCA 1998).

Moreover, this Court and other sister courts have affirmed peremptory strikes when the genuineness analysis merely was implicit in the trial court’s ruling. In Davis, this Court held that the fact the trial court allowed a peremptory challenge, without more explanation, “clearly indicates that [the trial court] did not find the State’s reason to be pretextual” and was sufficient to establish that trial court made a finding of genuineness. Davis, 691 So. 2d at 1183; see also Bowden v. State, 787 So. 2d 185, 188 (Fla. 1st DCA 2001) (holding that the trial court’s indication that it did not believe strike was racially motivated established that “the trial court reached step three of the Melbourne analysis and determined the strike was genuine”); Watson v. State, 841 So. 2d 659, 660 (Fla. 4th DCA 2003) (trial court engaged in genuineness analysis required under Melbourne where it stated

Page 7

“[a]ll right. Very well. That’s a race neutral decision” in response to State’s proffered reason for strike); Fleming v. State, 825 So. 2d 1027, 1029 (Fla. 1st DCA 2002) (concluding that, by overruling the defense’s objections, the trial court made an implicit finding that the State’s strikes were genuine).

The dissent contends that because the trial court used the word “reasonable,” rather than “genuine” that it failed to conduct a proper genuineness analysis under step 3. We respectfully disagree. Proper compliance with Melbourne does not mandate the “incantation of magical words,” Heggan v. State, 745 So. 2d 1066, 1068 (Fla. 3d DCA 1999), and “[t]here is nothing in Melbourne which requires trial judges to articulate their thought process on the issue of pretext.” Johnson, 706 So. 2d at 404. As this Court has explained, “[t]he trial court is not required to orally perform its genuineness analysis or to articulate the basis for its ruling.” Lidiano v. State, 967 So. 2d 972, 975 (Fla. 3d DCA 2007); accord Carrillo v. State, 962 So. 2d 1013, 1017 (Fla. 3d DCA 2007) (where trial court heard State’s gender-neutral explanation for strike, allowed defense counsel to argue its position, and then granted peremptory strike, trial court implicitly underwent a genuineness inquiry); Bowden, 787 So. 2d at 188 (trial court’s decision to allow State’s peremptory challenge “would indicate that he found the strike to be genuine”). “The right to an impartial jury… is best safeguarded not by an arcane maze of reversible error traps, but by reason and common sense.” Melbourne, 679 So. 2d at 765.

Page 8

In the absence of clear error, this Court is compelled to affirm. Accordingly, we conclude that the trial court underwent the genuineness analysis required by Melbourne, and affirm Alonzo’s conviction.

Affirmed.

WELLS, J., concurs.

Page 9

RAMIREZ, C.J.

I respectfully dissent.

Although proper compliance with Melbourne does not mandate the “incantation of magical words,” as the majority points out, it does mandate that the trial court focus on the genuineness of the race-neutral explanation as opposed to its reasonableness. See Murray v. State, 3 So. 3d 1108 (Fla. 2009). Here, the trial court clearly focused on its reasonableness. The transcript reflects that the trial court stated:

Well, I can see from the face of the questionnaire Ms. Harbin is a law enforcement officer, a corrections officer, and I think that is sufficiently reasonable basis, so I am going to allow the State’s peremptory.

Instead of ruling on whether it believed that the State’s reason for striking Juror Harbin was genuine, the trial court allowed the challenge by concluding that because Juror Harbin was a corrections officer, there was a reasonable basis for striking the juror. The transcript reflects that the trial court never undertook a “genuineness” analysis. This is not the correct application of the third step in the Melbourne analysis. Consequently, I would reverse Alonzo’s conviction and remand for a new trial.

——–

Notes:

^1. A review of the record shows that Alonzo’s claim that prospective jurors Harbin and Brown were similarly situated is not accurate. While Alonzo’s attorney stated that Brown had family members who had been accused of crimes, a review of the voir dire proceedings reveals only that Brown knew someone who had been arrested:

THE COURT: So that would be a problem. Then someone you know was arrested. So you know or do you have enough information to have an opinion about whether that person was treated fairly? MS. BROWN: No. The record, therefore, does not show whether the arrested person who Brown knew was a family member (as was the case with Harbin) or whether that person was also charged with a crime (as Harbin’s family member had been). Unless the person identified by Brown was also a family member who had been charged with crimes, Brown and Harbin were not similarly situated. See Hoskins v. State, 965 So. 2d 1, 10 (Fla. 2007).

^2. Although a pretext may exist if a prospective juror is struck for a reason equally applicable to an unchallenged juror, Fleming v. State, 825 So. 2d 1027 (Fla. 1st DCA 2002), “[t]he record, however, must show that the disparate treatment of the jurors in question is based on racial grounds.” Davis v. State, 691 So. 2d 1180, 1182 (Fla. 3d DCA 1997). Here, the race of juror Brown, the comparator that the State did not challenge, is not shown in the record. If the record fails to identify the respective race of the challenged and unchallenged jurors, the appellate court cannot determine if pretext exists. See Davis, 691 So. 2d at 1182 (where record did not reflect race of allegedly similarly situated jurors, it was impossible for this Court to determine the issue of pretext). Cf. Rodriguez, 753 So. 2d at 40 (where similarly situated juror was never identified in the trial court as Hispanic, Supreme Court could not determine the absence of pretext).
——–

Henry Marshall, Appellant,
v.
The State of Florida, Appellee.

No. 3D07-489
No. 05-29563

Third District Court of Appeals

July Term, A.D. 2010
Opinion filed October 27, 2010.

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

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

Bill McCollum, Attorney General, and Nicole Hiciano, Assistant Attorney General, for appellee.

ON MOTION FOR REHEARINGBefore SHEPHERD, CORTINAS, and SALTER, JJ.

PER CURIAM.

Page 2

The motion for rehearing is denied.

CORTINAS and SALTER, JJ., concur.

SHEPHERD, J., dissents for the reasons stated in the dissent to the panel opinion dated January 20, 2010.

ON MOTION FOR REHEARING EN BANCBefore RAMIREZ, C.J., and COPE, GERSTEN, WELLS, SHEPHERD, SUAREZ, CORTINAS, ROTHENBERG, LAGOA and SALTER, JJ.

The motion for rehearing en banc is denied.

WELLS, CORTINAS, ROTHENBERG, LAGOA and SALTER, JJ., concur.

RAMIREZ, C.J. and SHEPHERD and SUAREZ, JJ., dissent for the reasons stated in the dissent to the panel opinion dated January 20, 2010.

Page 3

COPE, J. (specially concurring in denial of rehearing en banc).

Because a substantial question is presented, compare, e.g., People v. Bryant, 768 N.W.2d 65 (Mich. 2009), cert. granted, 2010 WL 680519 (U.S. Mar. 1, 2010), with People v. Casique, 2009 WL 1508463 (Cal. Ct. App. 2009), and Collins v. State, 873 N.E.2d 149 (Ind. Ct. App. 2007), I favored consideration en banc, but that motion was unsuccessful.

On the merits, I believe the panel majority reached the correct result. The issue is whether the questions asked by the 911 operator called for answers which were testimonial in nature. Under the circumstances of this case, the answer is no.

The United States Supreme Court in Davis v. Washington, 547 U.S. 813 (2006), determined that where the 911 operator asked questions whose primary purpose was to enable police assistance to meet an ongoing emergency, the responses were not testimonial in nature. Id. at 828.

In this case the facts are accurately stated in the dissenting opinion. The perpetrators took the victim’s wallet, which had his address, and his house and car keys. As stated in the 911 call, there was an ongoing risk that the perpetrators would go to the victim’s house and use the keys to gain entry, or return to hijack

Page 4

the car. Under the facts of the case, the emergency was ongoing. While there are factual dissimilarities, the decision in U.S. v. Proctor, 505 F.3d 366 (5th Cir. 2007), is useful by analogy.

Page 5

GERSTEN, J. (dissenting).

I respectfully dissent from the denial of rehearing en banc. This matter is one in which the majority has perhaps overlooked or misapplied the tenets that the United States Supreme Court stated in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 126 S.Ct. 2266 (2006) (“Davis & Hammon“).

Judge Shepherd wrote a compelling dissent to the majority’s P.C.A. with a citation to United States v. Proctor, 505 F. 3d 366 (5th Cir. 2007). Although I am unable to write a better response to the majority’s P.C.A. than Judge Shepherd’s dissent, ¹ the bottom line, as Judge Shepherd convincingly wrote, is that there was no ongoing emergency in this case.

I admit, prior to Crawford, the majority would have properly applied the law in effect since Ohio v Roberts, 448 U.S. 56 (1980). However, Justice Scalia writing for the majority in Crawford, essentially receded from Roberts and

Page 6

reaffirmed the rather plain wording of the United States Constitution’s Sixth Amendment Confrontation Clause. The Confrontation Clause states, “[i]n all criminal prosecutions the accused shall enjoy the right… to be confronted with witnesses against him.” Crawford, a 9-0 opinion, clearly stated that “testimonial hearsay” was the principal, if not the only, object of concern of the Confrontation Clause. 541 U.S. at 53.

A criminal defendant has the right to confront witnesses testifying against him or her. Implicit and explicit in that right, a defendant has the right to: 1) be present at his or her trial; 2) confront witnesses against him or her; and 3) cross-examine any witness. Any limitation on these rights raises a claim of a Confrontation Clause violation.

Turning to this case, there are two questions: First, the question is whether the 911 statements are hearsay. Second, if so, are the statements testimonial? If the statements are testimonial, then the Confrontation Clause applies, and the statements should not have been admitted.

At trial, the 911 call was introduced to establish that the defendant was armed. Because the jury believed the defendant was armed, the defendant’s sentence was enhanced. Thus, the call was truly “asserted for the truth of the matter,” resulting in the truth of a life sentence for the defendant. § 90.801(1)(c), Fla. Stat. (2004). Even the majority does not dispute that a 911 call is hearsay.

Page 7

Therefore, since the statements were hearsay, the next question is whether the statements were testimonial.

The testimonial nature of the statements, in my opinion, is also clear. Under Crawford, testimonial statements are not admissible unless: 1) the declarant is unavailable at trial (declarant here was not available); 2) the prosecution demonstrates that the declarant is unavailable (prosecution so proved); and 3) the defendant had a “prior opportunity to cross-examine” the unavailable witness (this did not occur). 541 U.S. at 36. Crawford considers statements made to police or other governmental agencies to be testimonial. 541 U.S. at 52. Thus, the 911 call was a testimonial statement that was used against the defendant in this case.

After Crawford, the Court decided the dual cases of Davis & Hammon. These cases dealt with the admissibility of 911 calls and the meaning of interrogation. The Court stated, “[W]e use [the term interrogation] in its colloquial, rather than any technical legal, sense… and we need not select among [the various definitions] in this case.” 547 U.S. at 822.

Davis & Hammon introduced the judicial primary purpose test. Under the primary purpose test, statements are non-testimonial when made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police to meet an ongoing emergency. The Court determined that the statement becomes “testimonial” when the circumstances objectively indicate that

Page 8

there is no ongoing emergency, and the primary purpose is to establish or prove past events relevant to later criminal prosecution. 547 U.S. at 822.

Davis & Hammon stand for the proposition that a non-testimonial statement can “evolve into a testimonial statement” once the emergency has been resolved. 547 U.S. at 828. In Davis, once the operator gained the information necessary to assess the exigency, the emergency ended. In Davis, the defendant drove away, but the operator continued the questioning. The Court held that the remaining information was testimonial. 547 U.S. at 813.

Courts have given varied interpretations to the ongoing emergency language in Davis & Hammon. See, e.g., Colon v. Taskey, No. 1:08-CV-199 (N.D. Ohio 2009); James v. Marshall, No. CV 06-3399-CAS(E) (C.D. Cal. 2008); State v. Lewis, 648 S.E.2d 824 (N.C. 2007); Lee v. Cain, No. 06-9669 (E.D. La. 2007); State v. Basil, 2009 WL 1174777 (N.J. 2010); State v. Lucas, 407 Md. 307 (Md. 2009); Sanon v. State, 978 So. 2d 275 (Fla. 4th DCA 2008). But see, e.g., U.S. v. Proctor, 505 F.3d 366 (5th Cir. 2007); State v. Metzger, 999 A.2d 947 (Me. 2010); Hester v. State, 283 S.E.2d 600 (Ga. 2008).

Turning again to this case, the lightning rod question is whether there was an ongoing emergency. The 911 call was as follows:

[911 Operator]: Hello can I help you?
[Victim]: Yeah, I… got an emergency.
[911 Operator]: What’s your emergency?
[Victim]: It’s just armed robbery.

Page 9

[911 Operator]: Okay. When did this occur? What city?
[Victim]: What street is this?
[Unidentified Speaker]: It[']s Third, 49th and Third.
[Victim]: 43rd and 11th Court.
[911 Operator]: North-42 Northwest?
[Victim]: Yes[,] by the park.
[911 Operator]: Okay. Do you need anyone? Are you injured?
[Victim]: No.
[911 Operator]: Okay. Thank you. What is your name?
[Victim]: Leon Valentine.
[911 Operator]: Okay. What’s your phone number?
[Victim]: It’s in my phone, so I’m using somebody else[']s phone.
[911 Operator]: Okay. Leon[,] how many people?
[Victim]: I don’t know. There was some people at the park that witnessed it. They just talking to me now. [sic]
[911 Operator]: Okay. Tell me what happened.
[Victim]: I… am a Real Estate Broker. I pulled over to the side. I was using my phone. And these guys, they pulled up, like they were asking for directions. One of them, the guy, another guy with… a gun, they took off with my car [keys].
[911 Operator]: Okay. Were these black males?
[Victim]: yes, these black males in a white Sentra. It doesn’t, without a tag. [sic]
[911 Operator]: White what kind of.
[Victim]: In a white Sentra.
[Victim]: They were asking for directions, the guy with-the one another guy with a gun, they took all my stuff.
[911 Operator]: Okay. Were these black males?
[Victim]: yes. 3 black males, white Sentra. And it doesn’t [have] a tag.
[Unidentified Speaker]: Orange man got in the back seat.

Page 10

….[Unidentified Speaker]: Orange Man, that’s all I know, they call him Orange Man.
….[911 Operator]: Do you know what he was wearing?
[Victim]: No gold teeth and on the bottom. I don’t remember what, I think one of them had a red shirt.
[911 Operator]: Okay. The one that had the gun, what was he wearing?
[Victim]: Two of them had guns.
[911 Operator]: Okay.
[Victim]: That’s right. They took my hat, my Panama Hat.
[911 Operator]: It was a Panama Hat?
[Victim]: They took my tennis racquet, all man, they left with all my tennis. [sic]
[Unidentified Speaker]: They have your keys.
[911 Operator]: What else?
[Victim]: He damn sure took everything.
[911 Operator]: Okay. Thank you are at the park now there? [sic]
[Victim]: They took my car keys so I can’t even move.
[Unidentified Speaker]: They coming back for the car.
[Victim]: They took my wallet[.]
[Unidentified Speaker]: They got your address. Your keys, your house keys.
[911 Operator]: We will be there as soon as possible. All right thank you.

Here, the honest reader has to question whether there was an ongoing emergency when the victim made the 911 call. The declarant stated that he did not need anyone and that he was not injured. Once that was established, the 911 operator then gathered information that would be used to, “establish or prove past

Page 11

events relevant to later criminal prosecution.” Davis, 547 U.S. at 813. In this case, the testimony was used to prove that the defendant was armed.

One must ponder if there was an ongoing emergency, what was it? The obvious argument is that the victim was afraid for his wife at home as his wallet and keys were stolen. If that were the case, then why didn’t the 911 operator ask the declarant for his home phone number so that the declarant’s wife could be notified that there was an emergency? More importantly, if there was an emergency, why didn’t the 911 operator get the declarant’s address (since the declarant stated that the perpetrators had his wallet and keys) in order to send a police car to safeguard the declarant’s family?

I see no difference from this case or any other garden variety purse snatch, where an assailant takes a victim’s personal information and keys. If these circumstances always constitute an ongoing emergency, then the majority’s position eviscerates Crawford, Davis & Hammon, and a gaggle of nationwide state and federal cases. However, I do not believe it is within a state intermediate appellate court’s purview to ignore precedent.

If the Florida Supreme Court does not step in to clarify whether an armed robbery, strong arm robbery, or a purse snatch constitutes an ongoing emergency, then we are sadly headed towards jurisprudential entropy.

RAMIREZ, C.J., and SUAREZ, J., concur.

——–

Notes:

^1. But for Judge Shepherd’s dissent, this case would have passed into jurisprudential wasteland. That wasteland is the amalgam of P.C.A.’s that are piled up and indistinguishable from one another, so much so, that a P.C.A. renders a case meaningless to all but the parties and advocates who argued the case.

To that end, Judge Shepherd’s dissent brought this P.C.A. to life. Judge Shepherd’s dissent brought enough context and meaning to me, that I felt compelled to write yet another dissent on denial of rehearing en banc. This dissent, at least, let’s Henry Marshall know that others listen to his plight. These others feel that the importance, predictability, and purity of law are noble goals for judges and justices.
——–

Charles Williams, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-234
No. 83-23370

Third District Court of Appeals

July Term, A.D. 2010
Opinion filed October 27, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Orlando A. Prescott, Judge.

Charles Williams, in proper person.

Bill McCollum, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.

Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.

On Motion for RehearingPage 2

COPE, J.

On consideration of the motion for rehearing and the memoranda filed by the State, the Public Defender, and the Florida Parole Commission, this court withdraws its previous opinion and substitutes the following opinion.

The question before us is whether Charles Williams is entitled to be resentenced for the offenses of aggravated assault and sale of cocaine on authority of Smith v. State, 537 So. 2d 982 (Fla. 1989). We conclude that the answer is yes.

In 1967, defendant-appellant Williams was found guilty of first-degree murder and was sentenced to life imprisonment. The sentence was parole eligible. At some point he was released on parole.

On October 1, 1983, the sentencing guidelines took effect. See § 921.001(4)(a), Fla. Stat. (1983); ch. 83-87, § 2, Laws of Fla.

On October 13, 1983, the defendant committed the crimes of aggravated assault and sale of cocaine. In May of 1984, he was convicted and sentenced to four years under the guidelines, with a three-year mandatory minimum sentence. These sentences are consecutive to the life sentence.

In 1989, the Florida Supreme Court held the sentencing guidelines to be unconstitutional for the period prior to July 1, 1984. This meant that persons whose crime date was between October 1, 1983, and June 30, 1984, were entitled to be resentenced. Smith v. State, 537 So. 2d at 987; see Smith v. State, 876 So. 2d

Page 3

682, 683 (Fla. 3d DCA 2004). The defendant filed a motion under Florida Rule of Criminal Procedure 3.800(a) requesting resentencing under the cases just cited. The trial court denied the motion as having been previously adjudicated. The defendant has appealed.

The defendant asserts, and the Parole Commission agrees, that the defendant is within the group of inmates covered by Smith, 537 So. 2d at 987. However, he has never been resentenced pursuant to that decision.

The practical significance of this is that a Parole Commission Examiner has recommended that the defendant be paroled from his life sentence into his consecutive four-year sentence (with three-year mandatory minimum). The defendant is not eligible for release on parole until he completes his four-year guidelines sentence. That is so because parole is not available for offenders serving a guidelines sentence. See Gale v. State, 483 So. 2d 53, 55 (Fla. 1st DCA 1986). According to the Parole Commission, if the defendant were resentenced under Smith to a parole eligible sentence, then he would be eligible for parole on that sentence after serving the three-year mandatory minimum sentence. In other words, if the defendant were resentenced to a parole-eligible sentence under Smith, he would become eligible for release on parole a year earlier than would otherwise be the case.

Page 4

The State points out that this request for relief was denied in an earlier postconviction motion. As we view the matter, the manifest injustice exception to the res judicata doctrine is applicable here. See State v. McBride, 848 So. 2d 287, 291-92 (Fla. 2003). That is so because the defendant was sentenced under a version of the sentencing guidelines which was later held to be unconstitutional. Resentencing to a parole-eligible sentence would make the defendant eligible for release a year earlier than would otherwise be the case.

The State also argues that in 1984 the defendant may have affirmatively elected to be sentenced under the sentencing guidelines. We see no basis for that argument. Persons who committed a crime prior to the October 1, 1983 version of the sentencing guidelines had the right to elect to be sentenced under the guidelines if the actual sentencing was held after October 1, 1983. § 921.001(4)(a), Fla. Stat. (1983). That exception has no application here, because the defendant’s crime date was October 13, 1983, after the original version of the sentencing guidelines had gone into effect. Under the sentencing guidelines in effect at that time, sentencing under the guidelines was mandatory. The Florida Supreme Court’s declaration of unconstitutionality did not occur until 1989. There would have been no occasion for the defendant to make an affirmative election of the sentencing guidelines at the time of the 1984 sentencing. The Parole Commission is correct in saying that the defendant is within the group of offenders covered by Smith.

Page 5

For the stated reasons, the order now before us is reversed and the cause remanded for resentencing in Miami-Dade County Circuit Court case number 83-23370. The defendant shall be represented by counsel at the resentencing.

Reversed and remanded for further proceedings consistent herewith.

MICHAEL LEON WALKER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-6049

DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

Opinion filed October 27, 2010.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINEDAppeal from the Circuit Court for Manatee County; Diana L. Moreland, Judge.

James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

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

DAVIS, Judge.

Michael Leon Walker challenges his convictions and sentences for second-degree murder and armed burglary of a dwelling. Because the trial court erred in instructing the jury on manslaughter, we reverse Walker’s conviction and sentence for

Page 2

second-degree murder and remand for a new trial as to that count only. We affirm Walker’s armed burglary conviction without comment.

The charges against Walker stem from the burglary of the home of Roberta and Daniel Ramsey. The Ramseys returned home while Walker and his codefendant, Anthony Lewis, were committing the noontime burglary. When the Ramseys saw Lewis’ car backed up to their garage door, Mr. Ramsey parked his truck so as to block Lewis’ car. Mr. Ramsey then exited his vehicle, armed himself with his hunting knife still in its sheath, and confronted Walker; Lewis was still inside the house at the time. When Lewis came outside, he said to Mr. Ramsey, “I’ve got something I can take care of you with.” Lewis removed from his pocket a pistol that he had taken from the Ramseys’ home, and he fatally shot Mr. Ramsey.

Walker was tried for first-degree murder and armed burglary. With regard to the murder charge, the court instructed the jury on the lesser included offenses of second-degree murder and manslaughter by act. The jury convicted Walker of the lesser charge of second-degree murder and of the armed burglary as charged. The trial court sentenced Walker to two concurrent fifty-year terms.

On appeal, Walker argues that it was error for the trial court to give the standard jury instruction on manslaughter that was in effect at the time of his trial. Walker maintains that the instruction was erroneous because it includes as an element of manslaughter that the defendant intentionally caused the death of the victim.¹

Page 3

In State v. Montgomery, 35 Fla. L. Weekly S204 (Fla. Apr. 8, 2010), the Florida Supreme Court addressed whether this version of the instruction was erroneous. The court noted that section 782.07(1), Florida Statutes (2005), “does not impose a requirement that the defendant intend to kill the victim. Instead, it plainly provides that where one commits an act that results in death, and such an act is not lawfully justified or excusable, it is manslaughter.” Montgomery, 35 Fla. L. Weekly at S204-05. The court went on to state as follows:

Although in some cases of manslaughter by act it may be inferred from the facts that the defendant intended to kill the victim, to impose such a requirement on a finding of manslaughter by act would blur the distinction between first-degree murder and manslaughter. Moreover, it would impose a more stringent finding of intent upon manslaughter than upon second-degree murder…. Thus, we conclude that under Florida law, the crime of manslaughter by act does not require proof that the defendant intended to kill the victim.

Id. at S205.

In Montgomery, the appellant had been “indicted and tried for first-degree murder and ultimately convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter.” Id. The court concluded that the giving of the instruction amounted to fundamental reversible error in that case because it was ” ‘pertinent or material to what the jury must consider in order to convict.’ ” Id. (quoting State v. Delva, 575 So. 2d 643, 645 (Fla. 1991)).

Here, too, Walker was charged with first-degree murder. The trial court instructed the jury on second-degree murder and read the erroneous manslaughter instruction. Walker did not object to the instruction, and the jury returned a verdict of guilty of second-degree murder. Because the jury was erroneously instructed that to

Page 4

find Walker guilty of manslaughter it had to find that he intended to kill Daniel Ramsey, it is conceivable that it only found Walker guilty of second-degree murder because that was the only option that did not include the intent to kill. Pursuant to Montgomery, the giving of the erroneous instruction here amounted to fundamental, reversible error.² As such, we reverse Walker’s second-degree murder conviction and remand for new trial as to that count only.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.

——–

Notes:

^1. The standard jury instruction on manslaughter was amended in December 2008, modifying the intent element to be the intent to commit an act that causes the victim’s death. See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So. 2d 403, 403 (Fla. 2008).

^2.We recognize that the instructions read to the jury in this case may not have constituted fundamental error had the trial court also given the instruction for manslaughter by culpable negligence. See Barros-Dias v. State, 41 So. 3d 370 (Fla. 2d DCA 2010). However, no such instruction was given in this case.
——–

ROY EUGENE WHITTAKER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-2715

DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

Opinion filed October 27, 2010.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINEDAppeal from the Circuit Court for Manatee County; Nancy K. Donnellan, Senior Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Roy Eugene Whittaker appeals the revocation of his probation in five separate circuit court cases and his resulting prison sentences. The State proved new law violations in five new cases by a preponderance of the evidence, and because those new law violations were sufficient to justify the revocation of probation, we affirm

Page 2

the order revoking probation. See Gaddy v. State, 23 So. 3d 1258, 1259 (Fla. 2d DCA 2009); Green v. State, 19 So. 3d 449, 449-50 (Fla. 2d DCA 2009). However, we remand with directions for the trial court to strike the findings of new law violations in two new cases that we conclude were not supported by the State’s evidence.

At the violation hearing, the State attempted to prove the new law offense of fraudulent use of a credit card by Whittaker at a local Wal-Mart in circuit court case number 08-1337. The State presented the testimony of Vincent Eurice and Carla Frase to prove that Eurice’s home was burglarized, that Frase’s credit cards and other items were stolen, and that some of Frase’s items were found in Whittaker’s residence. However, the only evidence that Whittaker fraudulently used Frase’s credit card at Wal-Mart was hearsay or improperly admitted because it was not authenticated.

Frase’s boyfriend, Eurice, offered hearsay testimony that after calling their credit card companies, Eurice and Frase learned that one of Frase’s credit cards had been used at Wal-Mart. Frase also offered hearsay testimony that her credit card was used at Wal-Mart. Detective Atkinson offered hearsay testimony that the credit card company told her the date and time of the transaction at Wal-Mart and that the loss prevention officer at Wal-Mart told her the credit card was used during a particular transaction and the photographs from a Wal-Mart security camera, which were introduced into evidence, depicted that transaction.

The photographs of the Wal-Mart transaction were not properly authenticated because no witness with the requisite knowledge testified that the photographs were a fair and accurate representation of what occurred at the Wal-Mart. See Bryant v. State, 810 So. 2d 532, 536 (Fla. 1st DCA 2002); Charles W. Ehrhardt,

Page 3

Florida Evidence § 401.2, at 137-38 (2009 ed.). In addition, Detective Atkinson’s testimony that the photographs depicted the use of Frase’s card was hearsay because it was based on information Atkinson had received from a Wal-Mart employee who did not testify at the violation hearing. See Gaddy, 23 So. 3d at 1259 (“A trial court may consider hearsay testimony at a violation of probation hearing. But, hearsay may not be the sole basis supporting a ground for revocation.” (citation omitted)). Accordingly, the trial court erred in relying on this evidence in finding the new law violation of fraudulent use of a credit card in case 08-1337.

The trial court also erred in finding that the State proved the new law offense of attempted burglary of an unoccupied conveyance in circuit court case number 08-1461. The State did not introduce any evidence at the violation hearing relating to this new offense, and in fact, the prosecutor stated that he did not “think we ever talked about this case.”

Accordingly, we affirm the revocation of probation but remand for the trial court to strike the findings of these two new law violations from the order revoking probation. We affirm Whittaker’s sentences without comment.

Affirmed; remanded with directions.

WALLACE and BLACK, JJ., Concur.

Eloy Lara Garcia, Appellant,
v.
The State of Florida, Appellee.

No. 3D10-237
No. 05-36604

Third District Court of Appeals

July Term, A.D. 2010
Opinion filed October 27, 2010.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Bertila Soto, Judge.

Eloy Lara Garcia, in proper person.

Bill McCollum, Attorney General, for appellee.

Before COPE, WELLS, and SALTER, JJ.

PER CURIAM.

Affirmed.

Page 2

COPE, J. (concurring).

I concur in part on the merits and in part on a right-for-wrong-reason basis.

This is an appeal of a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 filed by defendant-appellant Eloy Lara Garcia. The trial court conducted an evidentiary hearing. This was for the purpose of considering Ground 2C, which alleged that defense counsel had failed to call a specifically identified defense witness, and Ground 5, which alleged that trial counsel affirmatively misadvised the defendant that if he testified, the exact nature of his prior convictions would be put before the jury. The trial court heard testimony from defense counsel, the defendant, and the proposed witness. The trial court denied the motion and that ruling is fully supported by the record. I concur in affirming on those claims.

In the trial court, the State filed a response which argued that numerous of the defendant’s claims were procedurally barred. The trial court accepted the State’s reasoning. The order now before us summarily denied relief on claims 1, 2A, 2B, 2D, 3A, 3B, 3D, 4, 6, 7, and 8.

Page 3

Unfortunately the State’s argument was wrong. The State apparently believed that since the defendant appealed his judgment and sentence, it followed that the defendant could raise on appeal any claim he wished—whether there had been an objection in the trial court or not. That is incorrect.

On appeal from a judgment and sentence, a defendant can only raise two types of claim of error: (1) a claim of error which was properly preserved in the trial court, usually by stating an objection, see § 924.051, Fla. Stat. (2007), or (2) a fundamental error. Id. The defendant’s rule 3.850 motion argues that his trial counsel had been ineffective by failing to make certain specific objections, including an objection to certain evidence, an objection to the State’s closing argument, and an objection to the jury instructions. Since there had been no objection at trial, and since none of the complained-of errors were fundamental, there was no way for this defendant to raise those issues on direct appeal. The applicable principles have been explained in cases such as Bruno v. State, 807 So. 2d 55, 63 (Fla. 2001); Johnson v. State, 3 So. 3d 412, 414-15 (Fla. 3d DCA 2009).

I concur in affirming the order now before us, however. Although the evidentiary hearing was scheduled for only two issues, the testimony and argument adequately covered all of the defendant’s claims. The postconviction motion was correctly denied.

The State of Florida, Appellant,
v.
Manuel Ojeda, Appellee.

No. 3D08-1079
No. 3D08-1077
Lower Tribunal No. 05-37152
Lower Tribunal No. 07-10526A

Third District Court of appeal
State of Florida

July Term, A.D. 2010
Opinion filed: October 27, 2010

Not final until disposition of timely filed motion for rehearing.Appeals from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge.

Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellant.

Jay Levine, for appellee.

Before COPE, SHEPHERD, and SUAREZ, JJ.

SUAREZ, J.

The State of Florida appeals from the trial court’s grant of two separate motions to suppress filed by the defendant, Manuel Ojeda. We affirm.

Page 2

In Case No. F05-37152, Ojeda pled guilty to charges of possession of cannabis, possession with intent to distribute, and possession of drug paraphernalia. The trial court initially sentenced him to nineteen months’ probation, but later vacated his plea. Thereafter, Ojeda filed a motion to suppress the marijuana evidence on the ground that Ojeda’s consent to search the residence was coerced by an unreasonable display of police force.

At the suppression hearing, the State called Detective Orenstein, who testified that after conducting a background check and discovering six prior contacts Ojeda had with police, he went to Ojeda’s residence around 7:45 a.m. with three other detectives, one sergeant, and two uniformed officers. He did not have a warrant to search the premises. At the scene, the officers parked their marked vehicles at the front of the residence. As Orenstein approached, the uniformed officers stood about thirty feet from the entrance to the house, and the other detectives spread out around the residence. When Ojeda answered the door he appeared to have just been awakened. Orenstein explained he’d been given a tip that marijuana was being cultivated inside the residence. Ojeda calmly invited the police into the house and stated—post-Miranda—he was willing to cooperate with the investigation. Five of the officers entered the house, Ojeda signed a consent-to-search form and led police officers to a functioning marijuana lab in his

Page 3

garage, claiming it was left there by renters who had moved out approximately six weeks earlier.

The court granted Ojeda’s motion to suppress by written order, holding that the unreasonable display of police presence outside of the residence would have made a reasonable person believe that he had no choice but to acquiesce.

In Case No. F07-10526A, Ojeda was charged with trafficking cannabis, conspiracy to traffic cannabis, and possession of cannabis. Ojeda filed a motion to suppress, claiming that the marijuana evidence recovered by police was the fruit of an unlawful warrantless entry into a home in order to arrest Ojeda.

At the suppression hearing, Detective Orenstein (again) testified that while performing a narcotics investigation he noticed Ojeda’s truck parked outside of a residence. Orenstein claimed he then contacted Detective Knapp, who was apparently seeking Ojeda in connection with a separate investigation. According to Orenstein, Knapp said he was on his way to the State Attorney’s office to seek an arrest warrant for Ojeda.¹ Orenstein testified that he decided to approach the house, and was joined at the scene by Officer Benjamin. The two knocked at Ojeda’s front door, Ojeda answered, and Orenstein asserted that he could immediately smell marijuana coming from the house. Orenstein testified that Ojeda told him there was no one else at the house, but Orenstein heard a door close

Page 4

in another room inside the residence. Orenstein then entered the house with the uniformed officer, arrested and handcuffed Ojeda, sat him at a table, and did a protective sweep that uncovered marijuana plants, hydroponics equipment, and other paraphernalia. Orenstein also found another occupant of the house, Perez, in a bathroom. Ojeda refused to sign a consent-to-search form. Orenstein obtained a warrant to search the residence after these events occurred, admitting in his testimony that he had no information prior to Ojeda’s arrest that there was anything suspicious in the residence, and that the only basis for his arrest was having smelled marijuana emanating from inside the house once Ojeda opened the front door.

After hearing testimony and arguments, the trial court granted Ojeda’s motion to suppress by written order, finding Detective Orenstein’s testimony to be unreliable, and holding that the evidence obtained was the fruit of an unlawful warrantless entry into a home in order to make an arrest.

A ruling on a motion to suppress comes to the appellate court as presumptively correct as to disputed facts and all reasonable inferences and deductions drawn from them. Pagan v. State, 830 So. 2d 792 (Fla. 2002). On the other hand, we review the trial court’s application of the law to the facts under the de novo standard. State v. Lennon, 963 So. 2d 765 (Fla. 3d DCA 2007). The dispositive issue in either case is whether the facts present an exception to the

Page 5

search warrant requirement.² This is a mixed question of law and fact and should be reviewed under the de novo standard. Fitzpatrick v. State, 900 So. 2d 495, 510 (Fla. 2005) (“[A]ppellate courts should… accord a presumption of correctness to… the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment[s].”) (quoting Nelson v. State, 850 So. 2d 514, 521 (Fla. 2003)) (quoting Connor v. State, 803 So. 2d 598, 608 (Fla. 2001)).

In Case No. F05-37152, the record reflects that there were no exigent circumstances present at the time Detective Orenstein confronted the Defendant at his residence. Because the police had no warrant to search the property, the State argues that the subsequent search was made pursuant to the defendant’s valid consent. See Lewis v. State, 979 So. 2d 1197 (Fla. 4th DCA 2008) (holding that a warrantless search constitutes a prima facie showing that shifts to the state the

Page 6

burden of proving the search’s legality); Miles v. State, 953 So. 2d 778, 779 (Fla. 4th DCA 2007). Once the State has presented its evidence of consent to search, the burden of proof does not shift back to the defendant to impeach that testimony or contradict the evidence. See Lewis, 979 So. 2d at 1200.

We conclude that the totality of the circumstances did not preclude the officers from taking the time necessary to secure a warrant.³ We affirm the trial court’s grant of the motion to suppress in this case. See Caldwell v. State, 985 So. 2d 602, 606 (Fla. 2d DCA 2008) (applying a totality-of-the-circumstances test to the issue of whether law enforcement’s conduct amounted to “a show of authority that would have caused a reasonable person to believe that he was not free to terminate the encounter”) review granted, 7 So. 3d 1097 (Fla. May 21, 2009).

In Case No. F07-10526A, the record indicates that no exigent circumstances existed to justify the warrantless entry and search by the detective and uniformed officer. As discussed above, the reasonableness of an entry by police onto private property without a warrant depends on the totality of the circumstances. See Davis v. State, 834 So. 2d 322, 327 (Fla. 5th DCA 2003). Some set of facts must exist that precludes taking the time to secure a warrant. See Levine v. State, 684 So. 2d

Page 7

903, 904 (Fla. 4th DCA 1996). No exigent circumstances were present in this case that would excuse the failure to secure a warrant prior to entering the defendant’s home. See United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir.), cert. denied, 481 U.S. 1072, 107 S. Ct. 2468, 95 L.Ed.2d 877 (1987). We are not persuaded by the State’s argument that the trial court ignored certain aspects of Detective Orenstein’s testimony that bolstered his credibility. The trial court, acting as fact-finder, was allowed to make such a determination. Lewis, 979 So. 2d 1197. The burden was on the State alone to show the legality of the search; the burden does not shift back to the defendant to impeach or otherwise controvert that showing. Id. at 1201 (holding that a trial court has the same ability to determine the believability of the witness as a jury; the trial court may disbelieve the only evidence offered in a suppression hearing, even if it is uncontradicted).

We affirm the trial court’s grant of the defendant’s motion to suppress in case numbers F07-10526A and F05-37152.

Affirmed.

Page 8

COPE, J. (specially concurring).

I entirely agree with the panel members in affirming the suppression order in Miami-Dade County Circuit Court case number 07-10526.

In Miami-Dade County Circuit Court case number 05-37152, the trial court’s oral pronouncement was that the court was granting the motion to suppress on authority of Miller v. State, 865 So. 2d 584 (Fla. 5th DCA 2004), and Gonzalez v. State, 578 So. 2d 729 (Fla. 3d DCA 1991). The facts were that when defendant-appellee Manuel Ojeda answered the front door, he could see the two detectives at the front door plus two uniformed officers standing twenty or thirty feet away on the front sidewalk. When he invited the officers in, four detectives and one police sergeant entered the home. He was read his Miranda⁴ rights and was asked to execute the consent form. The trial court could reasonably conclude, under the authority of the cited cases, that the consent was a submission to authority and was not voluntary.

I am in doubt about that part of the majority opinion which relies on Lewis v. State, 979 So. 2d 1197 (Fla. 4th DCA 2008). Our court has said, in the context

Page 9

of an evidentiary hearing on a motion to suppress evidence, that “[a] court must accept evidence which, like the material testimony of the police officers, is neither impeached, discredited, controverted, contradictory within itself, or physically impossible.” State v. Fernandez, 526 So. 2d 192, 193 (Fla. 3d DCA 1988). Here, the trial court cases were consolidated before a single judge, but a separate evidentiary record was developed in each case. While the trial court made an adverse credibility finding against the detective in case number 07-10526, there does not appear to be a record basis to do so in 05-37152.

Therefore I concur entirely in Miami-Dade County Circuit Court case number 07-10526, and concur in the result in Miami-Dade County Circuit Court case number 05-37152.

Page 10

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

This is the State’s consolidated appeal of adverse rulings in two suppression hearings involving the same defendant. I concur in the majority’s affirmance of Case No. F07-10526A. I respectfully dissent in Case No. F05-37152. ⁵

The defendant in these proceedings is Manuel Ojeda. His business is hydroponic marijuana farming. He has an extensive criminal history, including at least six felony convictions, before his arrest in Case No. F05-37152. He is well–known to the local authorities, down to the type of vehicle he drives.

In Case No. F07-10526A, Detective Orenstein approached the house in this case with the intent to arrest Ojeda on ten-day-old charges in another marijuana grow house case. Although Orenstein harbored a suspicion the house was being used for nefarious purposes, he made no effort to obtain a warrant to conduct a search. Instead, accompanied by Officer Benjamin, Orenstein elected to knock on the front door of the house and arrest Ojeda on prior charges if he appeared. While

Page 11

awaiting someone to open the door, Orenstein detected the odor of marijuana.⁶ Ojeda answered the door. Without asking permission, Orenstein and Benjamin entered, handcuffed Ojeda, and performed the protective sweep, which resulted in the grow house charges, which are the subject of the motion to suppress.

It is unquestionable that the actions of the detective and officer in this case were inexcusable and the seizure unreasonable. It is axiomatic that Orenstein had no authority to arrest Ojeda on the earlier charge absent a warrant. Engle v. State, 391 So. 2d 245, 246 (Fla. 5th DCA 1980) (“All searches conducted without a warrant are per se unreasonable unless conducted within the framework of a few specifically established and well delineated exceptions.”) (citing Katz v. United States, 389 U.S. 347 (1967)). Although Orenstein and Benjamin had probable cause to believe unlawful drug activity was occurring at the location, its presence alone did not strip the occupant of this dwelling of his constitutional guarantees against a warrantless search. See Johnson v. United States, 333 U.S. 10, 13 (1948) (citing Taylor v. United States, 286 U.S. 1 (1932)). A short period of watching was all that was necessary to effectuate a valid search in this case.

The State counters that the evidence seized nevertheless is admissible on the basis of the “inevitable discovery” doctrine. For this doctrine to apply, the State

Page 12

must show: (1) a reasonable probability that the evidence in question would have been discovered by lawful means; and (2) that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal police conduct. See United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1984). The State meets neither of these requirements in this case. Affirmance is in order in Case No. F07-10526A.

Case No. F05-37152 is a different matter. Contrary to the suggestion in the majority opinion, only two detectives were at the front door at the time Orenstein knocked.⁷ When Ojeda opened the door, Orenstein explained the purpose of his visit. According to Orenstein, Ojeda replied, “Come on inside.” It was only after this invitation that the three other detectives appeared. The detectives were wearing plain clothes, covered by a vest with the word “Police” across the front, and a badge and identification hanging around their necks. No guns were drawn, and no insistent statements or threats were uttered by any detective.

Once inside the house, Detective Orenstein read Ojeda the warnings required by Miranda⁸ to be given to a person in custody and asked Ojeda whether he understood them. Ojeda responded in the affirmative and, according to Orenstein,

Page 13

was “willing to cooperate with me with whatever I asked.” Thereupon, Orenstein asked whether Ojeda would consent to a search. Ojeda agreed and signed a consent form to search the house, adding, “[c]ome, I’m going to show you around the house.” As the detectives were going through the house, Orenstein additionally asked for consent to search the vehicles in the driveway. According to Orenstein, Ojeda responded, “Yes, sure,” which response was confirmed by the execution of yet another consent form.⁹ Ojeda ultimately led the detectives into the garage, where they encountered a marijuana hydroponics grow operation. Ojeda’s story was that he recently had moved back into the house, after having leased it to someone, and found the garage in this condition. He could not produce the name of the lessee or a lease. Nor had he called the police regarding his find. Ojeda did not appear scared, under the influence of any narcotics, to have any mental issues, or issues of understanding during the encounter. Orenstein described Ojeda’s demeanor as “confident that whatever he was going to tell me about a tenant being in the house,” would be credible. Orenstein was the only witness to testify at this suppression hearing.

Whether consent is freely and voluntarily given is determined by the totality of the circumstances. Taylor v. State, 355 So. 2d 180, 183 (Fla. 3d DCA 1978) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227-29 (1973)); see also State v.

Page 14

Othen, 300 So. 2d 732, 733 (Fla. 2d DCA 1974). The factors to be considered include the age and maturity of the accused; whether he had a prior criminal history; the time and place of the encounter; the number of officers; whether the defendant executed a written consent form; the length of time police interrogated him before he consented; whether he was in custody; and the words and actions of the officers. Miller v. State, 865 So. 2d 584, 587 (Fla. 5th DCA 2004) (citing United States v. Broomfield, 201 F.3d 1270, 1274 (10th Cir. 2000); United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997)). In conducting our review, we accord a presumption of correctness to the trial court’s findings of historical facts where there is substantial competent evidence to support them. State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001). However, our application of the law to the facts, including our determination of whether the defendant’s consent was objectively voluntary is de novo. Id. Finally, because a home is an area in which a person enjoys the highest reasonable expectation of privacy, we scrutinize the factors with special care. Payton v. New York, 445 U.S. 573, 585 (1980); Gonzalez v. State, 578 So. 2d 729, 732 (Fla. 3d DCA 1991).

In this case, the trial court relied on only three factors to conclude the consent to search was involuntary: (1) the time and place of the encounter; (2) the number of officers; and (3) the words and actions of those officers. The focus of

Page 15

the majority opinion is upon the latter. See Majority op. at p. 6.¹⁰ For the reasons that follow, I am of the opinion that a full analysis of all the factors, as required by law, mandates a reversal of the order entered by the trial court in this case.

First, Ojeda’s age, thirty-four at the time of the search, suggests he was of sufficient maturity and experience to make an intelligent decision. Second, there is no evidence he was intoxicated or otherwise impaired. Third, Ojeda executed a written consent form that was in English, after being asked whether he wanted it in English or Spanish. See Luna-Martinez v. State, 984 So. 2d 592, 600 (Fla. 2d DCA 2008) (“[T]he presence of a written consent tends to support the conclusion that the consent was given voluntarily.”). Fourth, Ojeda had a prior criminal history, creating a presumption that he knew his rights. Wilson v. State, 952 So. 2d 564, 570 (Fla. 5th DCA 2007) (“[W]hether he had a prior criminal history—the presumption being that one who has prior criminal arrests knows his legal rights….”). Fifth, Ojeda was read the warnings required by Miranda prior to executing

Page 16

the written consent. Although the warnings were unnecessary, see Davis v. State, 698 So. 2d 1182, 1189 (Fla. 1997) (“Miranda warnings are required whenever the State seeks to introduce against a defendant statements made by the defendant while in custody and under interrogation. Absent one or the other, Miranda warnings are not required.”), recent authority from our supreme court has recognized that, depending on the circumstance, an unneeded administration of Miranda warnings can be more protective of an individual’s rights than intimidating in nature. See Caldwell v. State, 41 So. 3d 188, 201 (Fla. 2010). Upon consideration of the totality of the circumstances of this case, I am of the view that the administration of Miranda warnings to Ojeda did not compromise his decision-making faculties. Although the warnings given to him were not tailored to a consent to search, he was advised he had the right to counsel and the right to terminate the encounter at any time. He never elected to terminate the encounter. Rather, he communicated in a cooperative spirit with the authorities from the moment he opened the front door.

Sixth, Ojeda was not deprived of any convenience or sequestered for an undue length of time prior to signing the consent. The Miranda administration took just a few minutes. Ojeda then volunteered to “cooperate with whatever [he was] asked.” Detective Orenstein then asked him to sign the consent form. Ojeda did so upon the first request. He read the form himself before signing. The search

Page 17

of the house began immediately thereafter. There is no evidence Ojeda was under undue stress.¹¹ In fact, the evidence in this case reveals Ojeda signed an additional consent form to expand the scope of the search while it was ongoing. This provides at least some further support for the inference that the consent was voluntary.

Seventh, that the encounter between the police and Ojeda took place on Wednesday, November 30, 2005, at 7:45 a.m., is a factor in favor of the State’s position. The officers did not arrive in the middle of the night. Seven forty-five on a Wednesday morning is the usual time ordinary business or working people are getting ready for work or eating breakfast. It might be that Ojeda’s business is more nocturnal in nature than others. However, he has no greater constitutional right to sleep in than anyone else.

Lastly, there was no overwhelming display of force in this case. As previously demonstrated, the majority is under the misimpression that five detectives met Ojeda when he opened the front door. The trial court believed the entirety of the force, seven in number, was present at that moment. Detective

Page 18

Orenstein, the bearer of the evidence in the case, ¹² testified he and just one other detective were at the door, see supra note 3, and that the other three detectives were on the side of the house in case someone tried to exit from a different direction. The inherent danger involved in a narcotics investigation counsels caution about criticizing the staffing and deployment decisions in cases like this. It seems entirely reasonable to order up a complement of seven law enforcement officers to investigate a tip of this nature. It would seem irresponsible not to send at least two persons to the front door. Only in retrospect do we know what awaited Orenstein and the other detective who accompanied him to the door. The case law is replete with examples of circumstances where no show of force has been found to exist under similar facts. See, e.g., United States v. Thompson, 524 F.3d 1126, 1133 (10th Cir. 2008) (finding the presence of three officers did not, by itself, render

Page 19

consent involuntary); United States v. Thomas, 430 F.3d 274, 276 (10th Cir. 2005) (concluding presence of four officers, without more, did not render consent involuntary); United States v. Ramirez-Chilel, 289 F.3d 744 (11th Cir. 2002) (stating the presence of four officers did not render consent involuntary); United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 2002) (stating presence of four officers, including three that were armed, who came to defendant’s motel room, found not to render consent involuntary); United States v. Padilla-Pena, 129 F.3d 457, 467 (8th Cir. 1997) (concluding presence of three officers did not render consent involuntary); United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995) (finding the presence of three officers did not render consent involuntary); United States v. Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993) (finding that presence of five officers did not render consent per se involuntary); United States v. Durades, 929 F.2d 1160, 1166-67 (7th Cir. 1991) (stating presence of three officers, who acted professionally at all times, in one apartment with three occupants was not coercive); Luna-Martinez, 984 So. at 600 (stating presence of three to four officers outside defendant’s apartment did not render consent per se involuntary); State v. Triana, 979 So. 2d 1039, 1044-45 (Fla. 3d DCA 2008) (finding that presence of four officers did not render consent involuntary); Wilson v. State, 952 So. 2d 564, 570 (Fla. 5th DCA 2007) (finding presence of three officers who had trespassed onto property and initially accosted defendant at gunpoint did not vitiate consent to

Page 20

search given after time passed); Putnel v. State, 746 So. 2d 521, 523 (Fla. 2d DCA 1999) (finding presence of two officers did not render consent involuntary). In fact, most authorities opine it is not so much the police presence that upends an otherwise lawful police action, such as the one reviewed here, but rather the verbal acts of those officers. See, e.g., Luna-Martinez, 984 So. 2d at 600 (“A suspect is more likely to be overawed by one officer speaking in an insistent, demanding tone than is a suspect who is addressed in a low-key manner in an encounter with several officers.”). There is no evidence in this case that any of the law enforcement personnel on the premises did or said anything a reasonable person would understand as an assertion of authority to search. I conclude that an examination of the totality of the circumstances in this case, as we are required to conduct, compels a reversal of the decision of the trial court in Case No. F05–37152.

In sum, I would affirm the order granting Ojeda’s motion to suppress in Case No. 07-10526A and reverse the order granting Ojeda’s motion to suppress in Case No. F05-37152.

——–

Notes:

^1. Detective Knapp testified that Detective Orenstein did not contact him until after Ojeda was arrested.

^2. The Fourth Amendment to the United States Constitution prohibits warrantless searches and seizures, rendering them per se unreasonable unless an exception applies. Katz v. United States, 389 U.S. 347 (1967). The analysis for a search requires a two-step inquiry where probable cause is required and, if it exists, a search warrant must be obtained unless an exception applies. “If the State fails to satisfy either step, the evidence seized in the unreasonable search must be suppressed.” Mapp v. Ohio, 367 U.S. 643 (1961). Common exceptions include consensual encounters with police officers and investigatory or Terry stops. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (identifying three levels of police-citizen encounters, including (1) a consensual encounter, (2) a temporary detention or investigatory stop, and (3) an arrest).

^3. The trial court properly weighed the testimony of the witnesses, and was “not required to believe the testimony of the police officers… even when that is the only evidence presented.” Lewis, 979 So. 2d at 1200 (citing to Maurer v. State, 668 So. 2d 1077, 1079 (Fla. 5th DCA 1996)).

^4.Miranda v. Arizona, 384 U.S. 436 (1966)

^5. The case before us actually consists of two consolidated appeals involving the same Appellee, Manuel Ojeda. The suppression hearings in these two cases, and one other case in which Ojeda was a defendant, Case No. F07-10525 (the “separate investigation” referenced at page 3 of the majority opinion), were conducted serially, but separately on the same day by the same trial judge. All three prosecutions are marijuana grow house prosecutions. The trial judge granted Ojeda’s motion to dismiss in all three cases. The State did not appeal Case No. F07-10525.

^6. The following exchange occurred on redirect examination of Orenstein:

Q. When you went to the front door of the house and knocked you smelled the odor outside of the house, correct?
A. Yes, I did.

^7. Orenstein testified, “I approached the front door with one other detective and the other detectives were on the side of the house [prepared to stop any fleeing suspects] and we had uniform officers that stood out towards the front so that their uniform presence was visible.”

^8.Miranda v. Arizona, 384 U.S. 436 (1966).

^9. The search of the vehicles was non-productive.

^10. The majority also faults the authorities in this case for “[under] the totality of the circumstances” not “taking the time necessary to secure a warrant.” Majority Op. at p. 6. The majority forgets the detectives and officers went to the residence in this case based upon an anonymous tip. An anonymous tip, alone, is insufficient as a matter of law to support the issuance of a search warrant. See J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998) affd, 529 U.S. 266 (2000) (stating, “an anonymous tip can provide the basis for reasonable suspicion, provided that it can be established that the tip is reliable”).

^11. To some extent, any encounter with an officer of the law may lead to some apprehension. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (“Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is a part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.”). However, this fact alone cannot support a seizure under the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

^12. The majority finds the trial court properly found the testimony of Detective Orenstein to be not credible. See Majority Op. at p. 6, note 3. The majority supports this finding with authorities from other district courts of appeal. Contrary to these decisions, the long-settled law of this District is that in a suppression hearing context, the trial judge must accept any evidence by a police officer “which is neither impeached, discredited, controverted, contradictory within itself, or physically impossible.” See State v. Fernandez, 526 So. 2d 192, 193 (Fla. 3d DCA 1988) (“Although the trial judge purported to find the testimony of the officers at the motion to suppress ‘not credible, ‘ he was not free to do so.”) (citing Flowers v. State, 106 Fla. 686, 143 So. 612 (1932); Brannen v. State, 94 Fla. 656, 114 So. 429 (1927); Harris v. State, 104 So. 2d 739 (Fla. 2d DCA 1958)). The record does not reveal any evidence that the testimony of Orenstein met any of the criteria by which it could have been discounted by the trial judge, and the trial judge cites no such evidence. This error alone mandates a re-consideration of the suppression order.
——–

LAURIE MCKOWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-3772

District Court Of Appeal Of The State Of Florida
Fourth District

July Term 2010
October 27, 2010

Per Curiam.

Appellant, Laurie McKown, pleaded no contest pursuant to a plea offer to a charge of exploitation of an elderly person in an amount less than $20,000. She was placed on five years’ probation and after a hearing, was ordered to pay restitution in the amount of $17,798.17. We reverse the order of restitution and remand for a new restitution hearing.

At the restitution hearing, through the testimony of the victim, Helen Seaman, the state offered into evidence a summary of ATM transactions, compiled by a detective who did not testify and based upon unauthenticated bank records, to prove the amount of restitution. McKown objected to the admission of the summary into evidence, arguing that no predicate was laid for its admission and it was hearsay. The state argued that it had given notice to McKown under section 90.956, Florida Statutes (2009), that it would be using charge summaries or calculations. The trial court overruled the objection and admitted the summary into evidence as proof of the amount of restitution owed.

In Sage v. State, 988 So. 2d 150 (Fla. 4th DCA 2008), this court held:

We review restitution orders for abuse of discretion. See Yaun v. State, 898 So. 2d 1016, 1017 (Fla. 4th DCA 2005). “The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence.’” Bennett v. State, 944 So. 2d 524, 525 (Fla. 4th DCA 2006) (quoting Koile v. State, 902 So. 2d 822, 824

Page 2

(Fla. 5th DCA 2005)). “‘Such evidence must be established through more than mere speculation; it must be based on competent evidence.’” Bennett, 944 So. 2d at 525-26 (quoting Glaubius v. State, 688 So. 2d 913, 916 (Fla. 1997)). Moreover, “‘[w]here restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole.’” Yaun, 898 So. 2d at 1017 (quoting Hercule v. State, 655 So. 2d 1256, 1257 (Fla. 3d DCA 1995)).

Sage, 988 So. 2d at 151-52.

While the victim had her bank statements with her in court, a predicate was not laid for their authenticity or reliability. Section 90.803(6)(a), Florida Statutes (2009), requires that the records custodian or other qualified bank employee testify to the necessary predicate before bank statements may be admitted into evidence. Without laying that foundation, the evidence is inadmissible hearsay. See Medlock v. State, 537 So. 2d 1030 (Fla. 2d DCA 1989) (bank statements offered to prove the defendant’s unauthorized withdrawals were inadmissible hearsay without the testimony of the records custodian regarding the necessary predicate). “Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence.” Bigelow v. State, 997 So. 2d 1249, 1250 (Fla. 5th DCA 2009). “[T]he State is still not permitted to admit any and all hearsay. Rather, the trial court may only allow hearsay having some minimal indicia of reliability to be injected into the [restitution] proceeding.” Box v. State, 993 So. 2d 135, 139 (Fla. 5th DCA 2008) (citation omitted).

The summary compiled from these bank statements also was not authenticated by the party who prepared it. In Johnson v. State, 856 So. 2d 1085 (Fla. 5th DCA 2003), the admission into evidence of a compilation of checks written on a victim’s bank account was reversed because “[n]o evidence was adduced identifying who had made the compilation, nor was any further predicate shown that would render it admissible as a summary pursuant to section 90.956, Florida Statutes (2001).” Id. at 1086-87.

The trial court erroneously relied upon the summary, and the victim’s testimony therefrom, over McKown’s timely objection based upon hearsay. The state did not introduce any other evidence of restitution owed. Accordingly, we reverse and remand for a new restitution hearing.

Reversed and Remanded.

Page 3

Taylor, Hazouri and Ciklin, JJ., concur.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia G. Imperato, Judge; L.T. Case No. 08-19326 CF10B.

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

Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.