Florida Criminal Law Opinions

An Appeal from the Circuit Court for Miami-Dade County, William Johnson, Judge.

Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.

Before COPE, GERSTEN, and WELLS, JJ.

GERSTEN, J.

R.O., a juvenile, appeals from an order withholding adjudication of delinquency and placing him on probation for possession of cocaine. We reverse.

Page 2

The State filed a petition of delinquency charging R.O. with possession of cocaine, resisting an officer without violence, and carrying a concealed weapon. At trial, the State put on one police officer, who testified about R.O.’s charges. Thereafter, the defense put on R.O., who testified that he did not realize that the men stopping him were police, and he ran because he was afraid someone was trying to rob him. R.O. testified that he threw his bicycle, and ran for several blocks until he came to a fence. R.O. testified that at this point he heard the officer identify himself and complied with his orders to stop. The defense asked no further questions of R.O.

Following defense counsel’s questioning of R.O., the following transpired:

DEFENSE COUNSEL: No further questions, your Honor.
JUDGE: She asked you about everything else. Did you have cocaine on you?
DEFENSE COUNSEL: Your Honor, I didn’t ask that.
JUDGE: I am asking that, though. Since he is on the stand.
WITNESS: No, I did not have it on me.
JUDGE: Did you have any cocaine on you?
WITNESS: No, I had thrown that out already.
JUDGE: Oh, you had thrown it out. All right.

Page 3

DEFENSE COUNSEL: Since you opened up that door, your Honor—
JUDGE: Yes, go ahead, you may ask.
DEFENSE COUNSEL: After you ran around the side of the fence, could you see the police officer?
THE WITNESS: No, ma’am.
DEFENSE COUNSEL: At what point did you throw the cocaine away?
WITNESS: I looked back and I didn’t see nobody, so I just—
DEFENSE COUNSEL: What happened next?
PROSECUTOR: For the record, that was a throwing motion that the Defendant just did.

Defense counsel then objected to the court’s question “on the basis that if I had been able to stop at exactly that point, there would have been no grounds for the State to have asked anything with respect to the cocaine possession, because it would have been outside the scope of direct.” The trial judge overruled the objection explaining, “The Court was interested in finding out about that, because that’s another charge, and you didn’t mention anything about it.” After the court questioned R.O., the State commenced cross-examination about R.O. throwing away the cocaine.

The defense rested and argued in closing that there was insufficient evidence that R.O. possessed cocaine because the officer’s testimony was not credible. The

Page 4

trial judge responded, “Well your client admits he threw it by the dumpster, didn’t he?” Thereupon, the trial court found R.O. guilty of possession of cocaine only and not any of the other charges. R.O. appealed.

On appeal, R.O. asserts that the trial court departed from his role of neutrality when questioning him about the cocaine possession. The State contends that the trial court did not abuse its discretion because a trial judge may question a witness in the interest of justice. We agree with R.O.

A court may question witnesses when required by the interests of justice. § 90.615(2), Fla. Stat. (2009). Questioning may be necessary, in the court’s discretion, to ascertain the truth, or to clarify an issue. Poe v. State, 746 So. 2d 1211, 1214 (Fla. 5th DCA 1999). A court may not ask questions or make comments in an attempt to supply essential elements to the State’s case. See Sears v. State, 889 So. 2d 956, 959 (Fla. 5th DCA 2004). Further, the trial judge’s words or actions “should not lean to the prosecution or defense lest it appear that his neutrality is departing from the center.” Riddle v. State, 755 So. 2d 771, 773 (Fla. 4th DCA 2000).

When a judge enters into the proceedings and becomes a participant or advocate, a shadow is cast upon judicial neutrality. See Asbury v. State, 765 So. 2d 965, 966 (Fla. 4th DCA 2000). The judicial neutrality becomes much more

Page 5

impaired when the trial court actively seeks out the presentation of additional evidence. 765 So. 2d at 966.

Here, the trial court actively sought out and questioned whether R.O. had cocaine. The trial court departed from the appearance of neutrality and became an active participant and advocate in the proceedings. The record clearly shows that defense counsel had finished questioning R.O. when the trial judge sua sponte questioned R.O. to supply essential elements of the prosecution’s case, to wit, the ultimate issue of R.O.’s guilt on the cocaine possession charge. Interestingly, the court did not find R.O. guilty of any other charges apparently because the officer was not particularly credible.

We find that the trial court’s questioning went well beyond general fact finding required by the interests of justice, elucidation of evidence, or mere curiosity. Instead, the trial court went right to the heart of the material element of the State’s case. In so doing, the trial court cannot be considered a neutral arbiter. Rather, the trial court became an advocate for the prosecution, thus depriving R.O. of his right to a fair and impartial trial. Accordingly, we reverse and remand for a new trial before a different trial judge.

Reversed and remanded.

WELLS, J., concurs.

Page 6

COPE, J. (dissenting).

We should affirm. The defense did not make any objection in the trial court that the judge had departed from neutrality. The only objection was that the trial court’s questions had broadened the scope of direct examination. The point is not preserved for appellate review. See Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).

An Appeal from the Circuit Court for Miami-Dade County, Yvonne Colodny, Judge.

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

Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

Before SHEPHERD, CORTINAS, and SALTER, JJ.

SALTER, J.

Hector Garcia appeals his conviction and sentence for burglary of an

Page 2

unoccupied dwelling and felony theft. Finding that the trial court erred in disallowing a defense peremptory challenge to a prospective juror, we reverse and remand for a new trial.

Initially, jury selection in the case proceeded smoothly and without incident. After six persons had been selected to serve on the jury, the state exercised a backstrike on one juror. The next venire member to be considered was Ms. Runno. The defense sought to exercise a peremptory challenge on Runno.

[Defense]: We will exercise our fourth peremptory on Ms. Runno, No. 26.
[State]: And we would ask for a race neutral reason.
[Defense]: Race neutral. Ms. Runno has previous jury experience.
[State]: I don’t know if that is a valid reason for a peremptory challenge.
THE COURT: The Court is going to deny that.
[Defense]: Prior jury experience has been held as a race and gender neutral reason to strike somebody from the panel.
THE COURT: Doesn’t the case law not say that it has to be something tangible, not tangible, but cognitive–from that jury experience that causes the concern, not just the simple fact that they served?

The court disallowed the peremptory. Venire member Cartotto, the only remaining person who had listed prior jury service on the juror questionnaire, was chosen as the alternate juror. The panel was accepted and the defense preserved its objection.

Page 3

The following day the court stated on the record that while the defense’s reason for the peremptory on Runno was race neutral, it was not genuine. The court stated that other jurors had prior jury experience.

The defense objected to the court’s explanation and proffered the juror questionnaires to show that no one who served on the jury other than Runno and Cartotto had prior jury experience. In fact, there were six venire members who listed prior jury service on the questionnaire. The court had excused one person based on personal hardship. Two had been stricken for cause based on stipulation by both parties without further discussion. The fourth venire person’s fiance was a police officer; she felt that police officers were more credible. She was stricken for cause. The issue of prior jury service was not discussed at all before Ms. Runno was considered.

Defense counsel also argued that Ms. Runno was Hispanic, as were the defendant and three other jurors. The court did not comment further.

We reverse the conviction because the procedures required by Melbourne v. State, 679 So. 2d 759 (Fla. 1996), were not followed in this case. “The proper starting point in any analysis of Melbourne issues is the principle that on appeal, peremptory challenges are presumed to be exercised in a nondiscriminatory manner. Furthermore, throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.” Julmice v. State, 14 So. 3d 1199, 1203 (Fla. 3d DCA 2009), review denied, 22 So.

Page 4

3d 68 (Fla. 2009) (citations omitted).

“[T]he prosecutor’s simple declaration that the ‘state is requesting a neutral reason’ after the strike was attempted was, without more, insufficient to trigger a [State v.] Neil, [457 So. 2d 481 (Fla. 1984),] inquiry….” Miller v. State, 664 So. 2d 1082, 1082 (Fla. 3d DCA 1995). The proper means of testing the peremptory challenge would have been to object, to show that the venire member is a member of a distinct racial group and then to request that the court ask a reason for the strike. Melbourne; Sparks v. Allstate Const., Inc., 16 So. 3d 161 (Fla. 3d DCA 2009).¹

Had this procedure been followed, this Court would have been in a better position to assess whether the strike was truly being exercised in a discriminatory manner. As the record stands, however, we cannot make that determination.

Reversed and remanded.

——–

^1. This case is distinguishable from Rodriguez v. State, 753 So. 2d 29 (Fla. 2000). Not only was the Rodriguez record surrounding the challenge fully developed, in Rodriguez the validity of the challenge rested on “exactly the type of credibility assessment that must be made by the trial court….” Id. at 41.
——–

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

Pedro Alvarado, in proper person.

Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

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

PER CURIAM.

Affirmed. See Kokal v. State, 901 So. 2d 766, 775-76 (Fla. 2005).

GERSTEN, J., and SCHWARTZ, Senior Judge, concur.

Page 2

COPE, J. (dissenting).

The only point defendant-appellant Alvarado has raised in his brief on appeal is that he should be given an opportunity to amend his Rule 3.850 motion pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007). That point is well taken.

The defendant filed his motion under Florida Rule of Criminal Procedure 3.850 alleging newly discovered evidence. The newly discovered evidence is set forth in the affidavit of Luis Delgado. The affidavit states that Alvarado’s codefendant, Robert Cannon, told Delgado that he planned to falsely accuse this defendant of participating in the charged crime in exchange for a more lenient sentence.

The State filed a trial court response in which it stated that the motion was legally insufficient because it did not attach the affidavit of Luis Delgado. The trial court denied the Rule 3.850 motion and the defendant has appealed.

The defendant maintains the affidavit should have been attached to the motion and has included it in the appendix he has filed here. But the point is that the trial court never saw the affidavit.

Page 3

The defendant states in his brief that although the trial court denied the 3.850 motion on March 29, 2009, the court did not get around to mailing the order to the defendant until April 15, 2009. The defendant is correct. The certificate of mailing is dated April 15. This means that the defendant’s time for filing a motion for rehearing, and to supply the affidavit, had already expired before the trial court mailed the order. The defendant only had time to file a notice of appeal.

Under Spera, a defendant should have at least one opportunity to amend, which is the only thing he is requesting. In the amended motion he can file the affidavit of Delgado and address the State’s other arguments.

Cannon’s statements to Delgado are, of course, hearsay. In its brief, the State says the Rule 3.850 motion is legally insufficient because it fails to address whether Cannon is available or unavailable to testify. What the State is driving at is that if Cannon is unavailable to testify, then it is possible that Cannon’s statements might qualify for admission under the Evidence Code’s hearsay exception for statements against interest. § 90.804(2)(c), Fla. Stat. The question whether Cannon is available or unavailable is a proper subject for an amended motion.

We should specify that the defendant can amend under Spera.

A case of Original Jurisdiction-Habeas Corpus.

Kenneth Daniels, in proper person.

Bill McCollum, Attorney General, and Lunar C. Alvey, Assistant Attorney General, for respondent.

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

SCHWARTZ, Senior Judge.

Page 2

The appellant, who was charged with second-degree murder but convicted of manslaughter, seeks habeas corpus relief claiming that his appellate counsel in Daniels v. State, 23 So. 3d 725 (Fla. 3d DCA 2009)(Table) was ineffective because he failed to raise a fundamental error claim based on Montgomery v. State, 39 So. 3d 252 (Fla. 2010). We deny the motion because, under the circumstances of this case, including the fact that the jury was given a manslaughter by culpable negligence instruction, no harmful error in fact took place. Contreras-Mayahua v. State, 40 So. 3d 861 (Fla. 4th DCA 2010), Cubelo v. State, 41 So. 3d 263 (Fla. 3d DCA 2010), and Salonko v. State, 42 So. 3d 801 (Fla. 1st DCA 2010), which involve identical factual situations, require this result. In Cubelo, for example, the court stated:

We find, as the First District found in Salonko, that the instant case is factually distinguishable from Montgomery as the Montgomery jury did not receive an instruction on culpable negligence as did the jury in the instant case. In the instant case, the jury was therefore given an opportunity (an opportunity not available to the Montgomery jury) to convict the defendant of the lesser included offense of manslaughter by culpable negligence, which clearly does not require an intent to kill. Thus, we conclude, as the First District concluded in Salonko, that because the jury was instructed on both manslaughter by act and manslaughter by culpable negligence, there was no fundamental error requiring a reversal of the defendant’s conviction for second-degree murder.

Cubelo at 267-268.

Habeas corpus denied.

Per Curiam.

John Blacker appeals from an order summarily denying his rule 3.800(a) motion to correct illegal sentence. He challenges the revocation of his youthful offender status following a revocation of his community control. We reverse.

After a non-jury trial, Blacker was found guilty of several drug possession and trafficking offenses alleged to have occurred in February 1998; the only offenses relevant to the instant case are Counts XI (trafficking in hydromorphone, twenty-eight grams or more) and XV (trafficking in hydromorphone, fourteen grams or more), for which he ultimately was sentenced as a youthful offender to concurrent terms of four years in prison, to be followed by two years of community control.¹

While on community control, Blacker entered an open plea to violation of community control (VOCC); he admitted he smoked marijuana and tested positive for using cocaine. The trial court found that these violations were substantive violations and revoked Blacker’s community control. The court revoked his youthful offender status and sentenced him to the twenty-five year drug trafficking mandatory minimum for Count XI and the fifteen-year drug trafficking mandatory minimum for Count XV.

Page 2

On direct appeal, we affirmed the judgment and sentence per curiam without opinion. Blacker v. State, 949 So. 2d 212 (Fla. 4th DCA 2007) (Table). Blacker argued in that appeal that the mandatory minimum penalties did not apply to a youthful offender. However, his status had been revoked, and he was not sentenced for the VOCC as a youthful offender. In the direct appeal, we did not determine whether his youthful offender status was properly revoked.

In this Rule 3.800(a) motion to correct illegal sentence, Blacker raised the following single ground for relief: the trial court improperly revoked his youthful offender status because he was not charged by information with a new substantive offense.

The trial court’s summary denial adopted the state’s reasoning that the motion was procedurally barred as having been raised and rejected on direct appeal. Blacker appeals.

Rule 3.800 allows a court at any time to “correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served.” Fla. R. Crim. P. 3.800(a). A claim that a sentence exceeds the maximum sentence allowed by the youthful offender statute clearly is a claim of illegal sentence that can be raised in a motion to correct illegal sentence. E.g., Goelz v. State, 937 So. 2d 1237 (Fla. 4th DCA 2006). However, whether a challenge to the trial court’s revocation of a defendant’s youthful offender status constitutes a cognizable claim of an illegal sentence appears to be a matter of first impression.²

We issued an order to show cause directing the parties to address, among other things, whether the claim of erroneous revocation of youthful offender status itself is cognizable in a Rule 3.800(a) motion. The state failed to comply with this direction, and Blacker’s argument on this question was not on point.

Page 3

A challenge to habitual offender sentencing imposed for an offense not subject to habitualization under any set of factual circumstances is cognizable in a Rule 3.800(a) motion as a matter of law. See Carter v. State, 786 So. 2d 1173, 1178 (Fla. 2001); Austin v. State, 756 So. 2d 1080 (Fla. 4th DCA 2000). Likewise, Rule 3.800(a) may be used to challenge a sexual predator designation, so long as it is apparent from the face of record that the criteria for the designation were not met. Saintelien v. State, 990 So. 2d 494 (Fla. 2008). By analogy, we conclude that the erroneous revocation of a defendant’s youthful offender status is also cognizable in a Rule 3.800(a) motion.

Section 958.021, Florida Statutes (1997), expresses the legislative intent that youthful offender sentencing be considered “an alternative to be used in the discretion of the court.” There is no dispute that Blacker initially received a youthful offender sentence in accordance with section 958.04(3). A sentence imposed under the Florida Youthful Offender Act §§ 958.011-.15, Fla. Stat. (1997), is “[i]n lieu of other criminal penalties authorized by law…” § 958.04(2), Fla. Stat. (1997).

Upon violation of a youthful offender’s supervision, the statute in effect at the time Blacker’s community control was revoked provided as follows:

A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1). However, no youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.

§ 958.14, Fla. Stat. (2003).³ Section 948.06(1), Florida Statutes (2003),

Page 4

sets out the manner in which a violation of probation or community control must be charged and proven, and among many things, contains language that allows the court, if it revokes supervision, to “impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control.” Nothing in section 948.06 or 958.14 indicates that youthful offender status is revoked upon revocation of probation or community control.

Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control. State v. Arnette, 604 So. 2d 482, 484 (Fla. 1992); Johnson v. State, 41 So. 3d 1115 (Fla. 4th DCA 2010); Rogers v. State, 972 So. 2d 1017, 1019 (Fla. 4th DCA), rev. denied, 988 So. 2d 622 (Fla. 2008); Hudson v. State, 989 So. 2d 725, 726 (Fla. 1st DCA 2008); Gardner v. State, 656 So. 2d 933, 937 (Fla. 1st DCA 1995) (“once a defendant is sentenced under the provisions of section 958.04, a court may not reclassify the defendant and sentence him or her in a manner inconsistent with section 958.04″).

If the defendant is convicted of and sentenced for a new offense in a subsequent case, the defendant is not entitled to a youthful offender sentence in that new case. Boynton v. State, 896 So. 2d 898, 899 (Fla. 3d DCA 2005); State v. Hicks, 545 So. 2d 952, 953 (Fla. 3d DCA 1989).

In Rogers, where youthful offender probation was violated based on allegations that the defendant committed a new offense, we held that “if the defendant is not charged by information with the new, substantive offense, but rather is charged by way of a violation of the defendant’s youthful offender commitment, the defendant’s youthful offender status may not be revoked.” 972 So. 2d at 1019. See also Johnson, 41 So. 3d at 1115. We held that the trial court erred in revoking Rogers’s youthful offender status where he had not been convicted of the new substantive offense. Rogers, 972 So. 2d at 1019. We also held that the court erred in imposing a sentence for the third degree felonies in excess of the statutory maximum, which, under section 958.14, was the maximum permissible sentence for a youthful offender who committed a substantive violation. Id. at 1019-20. There was no error in sentencing Rogers to fifteen years for his second degree felonies, but even so, he should have retained his youthful offender status because he was not convicted of the substantive offense with which he was charged in violating his probation. Id. at 1020.

Like the defendants in Rogers and Johnson, Blacker was not charged by information or convicted of the new substantive offenses that formed

Page 5

the basis for the VOCC. Accordingly, Blacker’s youthful offender status could not be revoked in this case.

“Unless the legislature clearly states otherwise, youthful offenders maintain youthful offender status even when they violate a condition of community control.” Arnette, 604 So. 2d at 484 (emphasis added). Even after violating supervision with a substantive violation, a youthful offender must be sentenced pursuant to the youthful offender statute. Rogers, 972 So. 2d at 1017.

Blacker’s claim is cognizable in a Rule 3.800(a) motion, legally sufficient, and has not been refuted or shown to be procedurally barred. We therefore reverse the trial court’s order. On remand, the trial court shall resentence Blacker as a youthful offender. Because he maintains his youthful offender status, the minimum mandatory penalties do not apply. See Mendez v. State, 835 So. 2d 348 (Fla. 4th DCA 2003); Jones v. State, 588 So. 2d 73 (Fla. 4th DCA 1991) (holding that the mandatory minimum penalties for drug trafficking do not apply to a defendant sentenced pursuant to the Youthful Offender Act).

Reversed and Remanded for further proceedings.

Taylor, Hazouri and Gerber, JJ., concur.

* * *Appeal of order denying rule 3.800 motion from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert Pegg, Judge; L.T. Case No. 311998CF000294B.

John Blacker, Avon Park, pro se.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

——–

^1. These offenses, known as “trafficking in illegal drugs,” are first-degree felonies with a statutory maximum of thirty years in prison. § 893.135(1)(c)1, Fla. Stat. (1997); § 775.082(3)(b), Fla. Stat. (1997).

^2. A defendant’s status as a youthful offender matters in part because it affects the defendant’s classification within the prison system and the programs and facilities to which the defendant can be assigned. See § 958.11, Fla. Stat. (2009) (requiring that the department “designate separate institutions and programs for youthful offenders…” and requiring that youthful offender institutions and programs contain “only those youthful offenders sentenced as such by the court or classified as such by the department…”). Also, the Department of Corrections is authorized to recommend a modification of sentence and early termination for youthful offenders who successfully participate in the youthful offender program. § 958.04(2)(d), Fla. Stat. (2009).

^3. The language allowing youthful offenders to be sentenced for a period up to the maximum sentence for the offense, for a substantive violation, was added in 1990. See Ch. 90-208, § 19, at 1161, Laws of Fla. Until then, for even a substantive violation, a youthful offender could be sentenced to no more than six years, with credit for time served.
——–

Warner, J.

In this appeal from his convictions for aggravated assault with a firearm and aggravated stalking, appellant claims that the court should have conducted a Faretta¹ inquiry when he insisted that his attorney not waive his speedy trial rights. Because appellant did not assert a right of self-representation, the trial court was not required to determine whether he knowingly rejected the right to counsel. We also affirm the remaining issues raised as to his convictions, but reverse the order of restitution because it was entered without the court holding a hearing.

Prior to the start of trial, appellant’s counsel questioned appellant in front of the court, noting that she had recently been appointed to the case and needed more time to prepare. Through her questioning, she made appellant confirm that she had told him that she needed additional time to prepare the case, but he still insisted on exercising his speedy trial rights. The trial court then thoroughly questioned appellant as to his insistence on going to trial, explaining the potential sentence he faced, his attorney’s need for additional time to prepare, and the disadvantage to appellant by proceeding. Appellant stated that he understood all of that but still wanted to proceed with trial. Appellant’s attorney then proceeded to represent him throughout the trial.

Appellant now asserts that because he insisted on his right to a speedy trial, he essentially was engaging in self-representation, and the trial court should have conducted a Faretta inquiry before allowing him

Page 2

to assert this right. “Faretta requires that once a defendant asserts the right of self-representation, the court must make an appropriate inquiry to determine whether the defendant knowingly and intelligently waived the right to counsel.” Waterhouse v. State, 596 So. 2d 1008, 1014 (Fla. 1992); see also State v. Roberts, 677 So. 2d 264, 265 (Fla. 1996) (explaining that Faretta inquiries are required where a defendant has made an unequivocal request for self-representation). In addition, while a defendant does not have a right to “hybrid” representation, Faretta warnings are required whenever the trial court permits a defendant to undertake a portion of his defense that is a “core function” of a lawyer. See Brooks v. State, 703 So. 2d 504, 505-06 (Fla. 1st DCA 1997); see also Madison v. State, 948 So. 2d 975 (Fla. 1st DCA 2007) (holding that the trial court does not possess the discretion to allow hybrid representation without first conducting a Faretta inquiry). Core functions of a defense lawyer in a criminal case include selecting juries, introducing and objecting to evidence, cross-examining witnesses, making motions, preserving legal issues for appeal, and giving opening and closing statements. United States v. Gerritsen, 571 F.3d 1001, 1011-12 (9th Cir. 2009); United States v. Erskine, 355 F.3d 1161, 1168 (9th Cir. 2004). Simply because an attorney can waive speedy trial over the defendant’s objection does not turn it into a core function of a lawyer. See Williams v. State, 383 So. 2d 722, 726 (Fla. 1st DCA 1980) (explaining that it is not error for counsel to waive speedy trial without the client’s approval if the waiver was made in good faith and the attorney believed the delay would benefit the client).

Appellant never requested self-representation. Nor is the decision to waive or assert speedy trial rights a core function which would trigger a Faretta inquiry. The decision as to whether to waive speedy trial does not require the level of skill and experience that the “core functions” of a lawyer demand. In fact, our supreme court has made clear that the client should be “involved” with such a decision. See State ex rel. Gutierrez v. Baker, 276 So. 2d 470, 471 (Fla. 1973). Honoring a client’s wishes in this regard is not the same as an attorney allowing the defendant to perform a core function of the attorney’s role in the defense, see, e.g., Brown v. State, 894 So. 2d 137, 146 (Fla. 2004) (counsel was not ineffective for honoring the defendant’s wishes not to present certain mitigating evidence which might have suggested that he and the victim were homosexuals); Rose v. State, 617 So. 2d 291, 294 (Fla. 1993) (“When a defendant preempts his attorney’s strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.”); Sims v. State, 602 So. 2d 1253, 1257-58 (Fla. 1992) (“[W]e do not believe counsel can be considered ineffective for honoring the client’s wishes.”); cf. Whitfield v. State, 923 So. 2d 375, 384 (Fla. 2005) (declining to

Page 3

consider whether counsel provided deficient performance by acquiescing in defendant’s desire to request a speedy trial where no prejudice resulted from the speedy trial demand). The trial court was not required to conduct a Faretta hearing.

Moreover, in this case the court conducted a thorough colloquy with the appellant. Just as the trial court inquires of a defendant regarding his decision to testify or not to testify, the court fully informed the defendant of the dangers of going to trial without giving his attorney full time to prepare. The court also informed him of his substantial exposure. If any inquiry were needed, then what the trial court conducted in this case would surely suffice.

Briefly addressing the remaining issues, appellant raises ineffective assistance of counsel on the face of the record. An appellate court may address an ineffective assistance claim on direct appeal only in the rare case where both prongs of Strickland² -the error and the prejudice-are manifest in the record. See Smith v. State, 998 So. 2d 516, 523 (Fla. 2008). This is not one of those rare cases. Our affirmance is without prejudice to appellant raising a claim of ineffective assistance of counsel in postconviction proceedings.

Appellant also claims that the prosecutor’s closing argument, none of which was objected-to, was so improper as to constitute fundamental error. Improper comments rise to the level of fundamental error only where the error “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brooks v. State, 762 So. 2d 879, 899 (Fla. 2000). Even if some of the comments were improper, an issue we do not decide, they did not affect the validity of the trial itself.

As to the issue of restitution, the state concedes, and we agree, that the trial court erred in ordering appellant to pay restitution without holding a hearing on restitution. See Iaconetti v. State, 869 So. 2d 695, 700 (Fla. 2d DCA 2004) (it is reversible error to impose restitution without notice or hearing). We therefore reverse the order of restitution and remand for the court to conduct an appropriate hearing.

For the foregoing reasons we affirm appellant’s convictions and sentences, except as to the order of restitution which we reverse and remand for the trial court to conduct an appropriate hearing.

Page 4

Polen and Levine, JJ., concur.

* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No. 08-11873 CF10A.

Valerie Masters, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez–Orosa, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

——–

^1. Faretta v. California, 422 u.s. 806 (1975).

^2. Strickland v. Washington, 466 u.s. 668 (1984).
——–

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINEDAppeal from the Circuit Court for Pinellas County; Nancy Moate Ley, Judge.

Joseph A. Eustace, Jr., and Anthony J. LaSpada of Anthony J. LaSpada, P.A., Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Ernest Henry Vroom challenges his convictions and sentences for three counts of unlawful collection of an advance fee and one count of grand theft. We affirm the convictions on the charges for the unlawful collection of an advance fee without

Page 2

discussion. But we reverse the conviction and sentence on the grand theft charge because the evidence was insufficient to prove that offense.

Vroom was the principal in a business known as Funding American Mortgage Corporation (FAMC). FAMC was licensed by the State of Florida as a mortgage lender pursuant to the requirements of chapter 494 of the Florida Statutes. Vroom’s role as an agent for FAMC was to negotiate loan agreements with potential borrowers and then “sell” the transactions to the ultimate lenders. In each of the three transactions that are the subject of this prosecution, Vroom collected an advance fee as a part of the negotiations with the borrowers. Vroom, however, failed to close any of the three transactions. In two of the transactions, Vroom was able to return the advance fee to the borrower, but he failed to do so in the transaction with Mr. Thomas Coghill, Sr. This failure was the basis of Vroom’s grand theft conviction.

At jury trial, after the close of the State’s case, Vroom moved for judgment of acquittal as to the grand theft charge, arguing that the State had failed to present sufficient evidence from which the jury could infer that he had the requisite intent to commit the offense. The facts basically showed that Coghill paid to FAMC the required advance fee and that Vroom then transferred it to an attorney’s trust account in London. Upon the failure of Vroom to close the loan, he and FAMC failed to return the deposit as agreed to by a commitment letter. There was no evidence that any of the funds remained with or were returned to Vroom or FAMC by the London attorneys or any other third party. Further, there was no evidence that Vroom had any relationship with the London attorneys or other parties that eventually received the money. As such, Vroom argues on appeal that the trial court erred in denying his motion for judgment of

Page 3

acquittal because the State failed to prove that he had the requisite intent to commit grand theft. See § 812.014, Fla. Stat. (2003).¹

The State argues that the case is a circumstantial evidence case and that there was evidence that would support the inference of criminal intent. First, the State suggests that Vroom provided to Coghill a personal financial statement that demonstrated that Vroom was personally able to guarantee the repayment of the advance fee. However, the State argues that since Vroom was unable to subsequently return the fee when the loan did not close as planned, the reasonable inference is that he had provided deceptive financial information in the disclosure statement for the purpose of intentionally deceiving Coghill in an attempt to obtain Coghill’s funds.

We disagree. There was no evidence that the financial disclosure was inaccurate at the time it was made. The fact that, at some future time, Vroom could not make the repayment is not sufficient to support a conviction of grand theft. Although the facts may support the inference that Vroom was intentionally deceiving Coghill at the time he received the funds, the same facts could also support the reasonable inference that Vroom had encountered economic reversals after supplying the disclosure statement. As such, the fact that Vroom’s financial condition at the time of the

Page 4

requested repayment was not consistent with that represented in the financial disclosure statement he provided to Coghill is not enough, on its own, to support a conviction for grand theft. See Lindsey v. State, 14 So. 3d 211, 215 (Fla. 2009) (” ‘Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt.’ ” (quoting Ballard v. State, 923 So. 2d 475, 482 (Fla. 2006))).

The State also argues that because Vroom had failed to proceed to closing on the prior two loans, he intentionally deceived Coghill as to his ability to obtain the loan and that the deception was for the purpose of unlawfully obtaining the advance fee from Coghill. Again, we reject the State’s conclusion. The record indicates that Vroom was not very successful as a mortgage lender. But the fact that he had failed to obtain the prior loans does not, on its own, support the inference that he knew he could not complete this transaction and that he was fraudulently representing his ability to do so.

We conclude that the State’s evidence failed to show that, at the time of the transaction, Vroom had the intent to obtain these funds by fraud, deception, or with an intent to deprive the borrower of the funds.

Finally, the State argues that Vroom violated the statutory requirements that apply to mortgage lenders by failing to keep the funds from Coghill’s advance fee in a federally insured bank account. The State maintains that this violation was sufficient to support the inference that Vroom intentionally attempted to deprive Coghill of his funds. Again, we reject this argument. Although Vroom did move the funds out of the

Page 5

country by transferring them to the trust account of an attorney in London, he did so with Coghill’s permission and knowledge. Although the placement of the funds may have violated the licensing requirements of chapter 494, the facts of this case do not support the inference that this was being done for a criminal purpose, i.e., attempting to deprive Coghill of the use of his funds.

On appeal, Vroom also challenges several of the trial court’s evidentiary rulings. Because we conclude that the State’s evidence was insufficient to support the grand theft conviction, we need not address these rulings. Additionally, Vroom challenges the trial court’s restitution award; however, we affirm that award without comment.

In conclusion, we affirm Vroom’s convictions for the three counts of collecting an advance fee but reverse his conviction for grand theft and remand with instructions to vacate that judgment and sentence and enter a judgment of acquittal as to that charge only. Because the grand theft was the primary offense on Vroom’s sentencing scoresheet, he is entitled to be resentenced on the remaining three counts using a corrected scoresheet.

Affirmed in part, reversed in part, and remanded with instructions.

KHOUZAM and MORRIS, JJ., Concur.

——–

^1. Section 812.014 provides in part:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

——–

Per Curiam.

We grant the petition for belated appeal. In his sworn petition, petitioner stated that he had asked his attorney to appeal his conviction and sentence and had been assured that his attorney was taking care of the appeal. He found out that no appeal had been filed only after his mother directly contacted the court after waiting for a decision for over two years. We ordered the state to respond, and the response indicated that it had contacted petitioner’s trial counsel who had denied receiving any directions to appeal. Therefore, we ordered a hearing to be conducted pursuant to State v. Trowell, 739 So. 2d 77 (Fla. 1999).

At the hearing where petitioner, his mother, and his trial attorney all testified, the petitioner testified that he requested that his attorney file an appeal, and he followed that up with a letter. His attorney, however, testified that he had no recollection of being directed to file an appeal either orally or in writing. Because his law office had been closed due to his illness after he had represented petitioner at the plea hearing, the attorney no longer had any file to determine whether he had received any written instructions to appeal. Based upon findings consistent with this testimony, and “in the absence of any corroborating evidence that [petitioner] timely requested his trial attorney… to file a timely appeal,” the commissioner recommended that the belated appeal be dismissed.

In Trowell, the Florida Supreme Court established the procedural steps for an appellate court to follow in determining a petition for belated appeal:

Page 2

[T]he appellate court should grant a petition seeking a belated appeal if the defendant alleges that a timely request of counsel to file the notice of appeal was made and that counsel failed to do so. If the State raises a good faith basis to dispute the defendant’s claims through affidavit or specific contrary allegations, the appellate court may order an evidentiary hearing in the trial court to determine the limited disputed issues of fact.

Id. at 81. The petition in this case complied with this procedure by stating that petitioner had timely requested counsel to file the notice of appeal. The state’s response contested this by stating that petitioner’s counsel represented that he did not receive instructions to file an appeal. We appointed a commissioner to resolve this disputed issue of fact. At the hearing, however, the commissioner found that the attorney had no recollection of being directed to file an appeal.

Had the state’s response accurately indicated the attorney’s lack of recollection, no hearing would have been necessary, and we would have granted the petition. Testimony that petitioner’s attorney had no recollection of being asked to appeal is insufficient to show a good faith basis to dispute petitioner’s sworn testimony. See Reese v. State, 743 So. 2d 1104 (Fla. 4th DCA 1998) (no hearing required where petition states that defendant asked attorney to appeal, and attorney has no independent recollection of the request); Walker v. State, 742 So. 2d 342 (Fla. 3d DCA 1999) (where state’s response shows that defendant’s attorney had no specific recollection of a request to appeal, state has not shown a good faith dispute to be resolved); Trowell v. State, 706 So. 2d 332, 338 (Fla. 1st DCA 1998) (same).

We therefore grant the petition. By unpublished order entered concurrently with this opinion, we direct further proceedings on the belated appeal.

Warner, Hazouri and Damoorgian, JJ., concur.

* * *Petition seeking belated appeal to the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; James W. McCann, Judge; L.T. Case No. 562002CF000250A.

Theodore Carl Kelly, Avon Park, pro se.

Page 3

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for respondent.

Not final until disposition of timely filed motion for rehearing.

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

An appeal from the Circuit Court for Leon County. Terry P. Lewis, Judge.

Jeffrey Lewis, Regional Conflict Counsel and Sheila Callahan, Assistant Regional Conflict Counsel, Office of Regional Conflict Counsel, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Anne C. Conley, Assistant Attorney General, and Meredith Charbula, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

After the filing of Anders¹ briefs by defense counsel for each of the trial proceedings now on appeal and upon our independent review of the judgment and sentence in State v. Bowden, Case No. 2008 CF 004173 (Fla. 2d Cir. Ct., June 17,

Page 2

2009), the judgment and sentence in that case are affirmed.

Regarding the judgment and sentence, order of probation, and order granting in part and denying in part the appellant’s motion to correct sentencing errors in State v. Bowden, Case No. 2007 CF 2997 (Fla. 2d Cir. Ct., June 17, 2009), these rulings are affirmed. Biller v. State, 618 So. 2d 734 (Fla. 1993); Devine v. Sate, 636 So. 2d 179 (Fla. 5th DCA 1994). Case number 2007 CF 002997 is remanded for entry of the corrected judgment and sentence as a result of the trial court’s ruling on the 3.800 motion, entered May 6, 2010. Mobley v. State, 968 So. 2d 632 (Fla. 2d DCA 2007).

WOLF, CLARK, and ROWE, JJ., CONCUR.

——–

^1. Anders v. California, 386 U. S. 738 (1967); see also Forrester v. State, 556 So. 2d 1114 (Fla. 1990).
——–

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINEDAppeal from the Circuit Court for Pinellas County; Nancy Moate Ley, Judge.

James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.

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

WALLACE, Judge.

Chadwick Kegler appeals his judgment and sentences entered in accordance with his no contest plea, challenging the denial of his pro se motion to

Page 2

withdraw plea after sentencing.¹ Because the circuit court erred in declining to appoint conflict-free counsel to assist Mr. Kegler on his motion, we reverse the order denying the motion to withdraw plea and remand for further proceedings.

Mr. Kegler’s motion asserted that he should be permitted to withdraw his plea due to “misunderstanding and miscommunication.”² The circuit court permitted Mr. Kegler to clarify his claims at a hearing, and Mr. Kegler asserted that his trial counsel had refused to pursue a viable entrapment defense; that counsel had represented that he could get certain charges, to which Mr. Kegler ultimately pleaded, thrown out; and that counsel had essentially forced him into accepting the plea. Mr. Kegler stated that his counsel, who was present at the hearing, would have to admit Mr. Kegler’s contentions if counsel was placed under oath.

The circuit court judge expressed her belief that Mr. Kegler understood what was happening when he entered into the plea. She noted that she and Mr. Kegler’s trial counsel spent considerable time going over the plea with Mr. Kegler and that everyone was ready to go to trial. In addition, Mr. Kegler had represented that he was satisfied with counsel’s representation when he entered into the plea. Understandably frustrated with Mr. Kegler, and in the face of his assertion that counsel would have to admit his contentions under oath, the circuit court judge placed counsel under oath and asked him if what Mr. Kegler said was true. Counsel inquired if he had permission

Page 3

to respond, and the judge asked Mr. Kegler if he was willing to waive the attorney-client privilege. Mr. Kegler requested counsel, and when the circuit court pointed out that he had counsel, Mr. Kegler replied that he needed “conflict counsel.” The judge responded that it was too late for “conflict counsel” and denied the motion to withdraw plea.

Mr. Kegler subsequently filed a motion to reconsider the motion to withdraw plea, requesting an opportunity to present his motion with counsel present. The circuit court denied this motion, noting that Mr. Kegler’s attorney was present at the hearing on the motion to withdraw plea.

Mr. Kegler’s claims are that his trial counsel coerced him into entering the plea and that his plea was involuntary. “Coercion by counsel may render a plea involuntary,” Simmons v. State, 485 So. 2d 475, 476 (Fla. 2d DCA 1986), and “[a]n involuntary plea is a ground for withdrawal under rule 9.140(b)(2)(A)(ii)(c),” Council v. State, 9 So. 3d 721, 722 (Fla. 2d DCA 2009).

Where a defendant seeks to withdraw his plea on the ground that it was coerced by his attorney, the trial court must either appoint conflict-free counsel or permit the defendant the opportunity to secure the same and, then, conduct an evidentiary hearing on the motion to withdraw plea.

Id. (quoting Brown v. State, 835 So. 2d 402, 403 (Fla. 2d DCA 2003)). Moreover, this court noted in Krautheim v. State, 38 So. 3d 802, 804-05 (Fla. 2d DCA 2010) (citations omitted), as follows:

A motion to withdraw plea is a critical stage of the proceedings at which a defendant is entitled to be present and to have counsel represent him….
… [O]nce it becomes clear that a defendant and his counsel are in an adversarial relationship with respect to the defendant’s entry of his plea, the defendant is entitled to the

Page 4

appointment of conflict-free counsel to represent him and to assist him with respect to his motion to withdraw plea.

See also Applegate v. State, 23 So. 3d 211, 212 (Fla. 2d DCA 2009) (noting same); Golden v. State, 987 So. 2d 1279, 1280 (Fla. 2d DCA 2008) (noting same).

Here, it became clear that Mr. Kegler and his counsel were in an adversarial relationship when Mr. Kegler made claims about his counsel’s representation and asserted that counsel had coerced him into accepting his plea. Nothing could demonstrate the adversarial nature of their relationship better than the circuit court’s decision to place counsel under oath to respond to Mr. Kegler’s claims. Instead of doing so, the circuit court should have concluded the hearing and appointed conflict-free counsel to represent Mr. Kegler on his motion to withdraw plea. See Garcia v. State, 846 So. 2d 660, 661 (Fla. 2d DCA 2003) (noting that the defendant was entitled to the appointment of conflict-free counsel when his counsel gave adverse testimony at a hearing on the defendant’s motion to withdraw plea).

Accordingly, we reverse the order denying Mr. Kegler’s motion to withdraw plea and remand for further proceedings. On remand, the circuit court shall provide Mr. Kegler the opportunity to present his motion with the assistance of conflict-free counsel. Because Mr. Kegler is entitled to assistance in preparing his motion, the court should provide counsel an opportunity to file an amended motion on Mr. Kegler’s behalf. See Applegate, 23 So. 3d at 212; Council, 9 So. 3d at 722-23. If the amended motion presents a facially sufficient claim or claims for withdrawal, the circuit court should consider the merits of Mr. Kegler’s motion at a hearing at which he shall be entitled to be represented by conflict-free counsel. See Krautheim, 38 So. 3d at 806.

Page 5

We caution Mr. Kegler that if he is successful in withdrawing his plea and is convicted of the subject charges after a trial, the circuit court could impose the maximum penalties, which in Mr. Kegler’s case would amount to a life sentence.³

Reversed and remanded.

VILLANTI, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge, Concurring.

Chadwick Kegler had twenty-four prior convictions, including several for sale of cocaine, when he was charged with these seventeen new felonies. He undoubtedly qualified for enhanced sentencing under two or more theories. His attorney negotiated a plea under which Mr. Kegler obtained concurrent sentences, the longest of which is twelve years. In light of the drug trafficking multiplier on his scoresheet, these sentences are downward departures. Given these circumstances, the trial court can be forgiven for concluding that Mr. Kegler’s theory of entrapment to the multiple offenses of sale of cocaine was frivolous.

Rather than appealing the trial court’s order denying his motion to withdraw his plea, Mr. Kegler should recognize that the experienced trial judge accepted this favorable negotiated plea and denied a motion that could only make matters far

Page 6

worse for Mr. Kegler. Legally, however, Mr. Kegler is entitled to conflict-free counsel, who will undoubtedly encourage him to abandon his effort to withdraw his plea.

——–

^1. Mr. Kegler pleaded to one count of trafficking in cocaine, seven counts of sale of cocaine, one count of felonious possession of a firearm, seven counts of possession of cocaine, and one count of operating a drug house.

^2.Mr. Kegler also asserted in his motion that the circuit court had imposed an illegal sentence. The circuit court entered a separate order denying Mr. Kegler’s motion to correct illegal sentence, which is not at issue in this appeal.

^3.If the maximum possible sentences for each of the charged crimes are run consecutively, Mr. Kegler could receive a total sentence of 186 years’ imprisonment. See §§ 775.082(3)(b), (3)(c), (4)(a); 790.23(1)(a), (3); 893.13(1)(a)(1), (7)(a)(5); 893.135(1)(b)(1)(a), Fla. Stat. (2006-07).
——–