Florida Criminal Law Opinions

Third District Court of Appeal

State of Florida, July Term, A.D. 2010

Opinion filed December 29, 2010.

Not final until disposition of timely filed motion for rehearing.

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No. 3D10-3137

Lower Tribunal Nos. 91-20674; 85-32434; 86-749

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Willie McGriff,

Appellant,

vs.

The State of Florida,

Appellee.

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

Willie McGriff, in proper person.

Bill McCollum, Attorney General, , for appellee.

Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

This is the tenth post-judgment case brought to this Court by the defendant.

All have been meritless, and at least those filed since 2007 have also been

successive and frivolous. We affirm the trial court’s denial of the latest motion, but in doing so we find that “enough is enough.” Isley v. State, 652 So. 2d 409, 410 (Fla. 5th DCA 1995).

Accordingly, Willie McGriff is now directed to show cause, within thirty days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions both here and in the lower court relating to his convictions and sentences in circuit court case numbers 91- 20674; 85-32434; 86-749. Absent a showing of good cause, we intend to direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to these circuit court case numbers unless they have been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Additionally, and absent a showing of good cause, any such further and unauthorized pro se filings by the defendant will subject him to appropriate sanctions. See State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999).

Affirmed.

Third District Court of Appeal

State of Florida, July Term, A.D. 2010

Opinion filed December 29, 2010.

Not final until disposition of timely filed motion for rehearing.

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No. 3D10-3034

Lower Tribunal No. 03-27421

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Jean Moses Baptiste,

Appellant,

vs.

The State of Florida,

Appellee.

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

Jean Moses Baptiste, in proper person.

Bill McCollum, Attorney General, for appellee.

Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

Affirmed. See Bermudez v. State, 603 So. 2d 657 (Fla. 3d DCA 1992); Flores v. State, 35 Fla. L. Weekly D1562 (Fla. 4th DCA July 14, 2010).

Third District Court of Appeal

State of Florida, July Term, A.D., 2010

Opinion filed December 29, 2010.

Not final until disposition of timely filed motion for rehearing.

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No. 3D10-2969

Lower Tribunal Nos. 08-33142 & 09-21014

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Lazaro Galindo

Appellant,

vs.

The State of Florida,

Appellee.

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

Lazaro Galindo, in proper person.

Bill McCollum, Attorney General, for appellee.

Before WELLS, LAGOA, and SALTER, JJ.

PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida

Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this

Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

Third District Court of Appeal

State of Florida, July Term, A.D. 2010

Opinion filed December 29, 2010.

Not final until disposition of timely filed motion for rehearing.

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No. 3D10-2853

Lower Tribunal No. 06-6951

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James C. Carroll,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Mary Barzee Flores, Judge.

James C. Carroll, in proper person.

Bill McCollum, Attorney General, for appellee.

Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.

RAMIREZ, C.J.

James C. Carroll appeals the trial court’s summary denial of his pro se “Motion to Request Time on Post-Conviction Relief Pursuant to Rule 3.850.” Carroll filed this motion in the trial court on August 23, 2010. It appears he was

under the mistaken idea that he needed to request more time to file his 3.850 motion because he had requested his deposition, discovery packet and trial transcript from the attorney who represented him on his direct appeal, but had not received anything. In fact, Carroll had until November 18, 2010, to file his 3.850 motion because the mandate from this Court in his direct appeal issued on November 19, 2008.

The trial judge summarily denied Carroll’s “Motion to Request Time on Post-Conviction Relief Pursuant to Rule 3.850.” In her order, the trial judge stated, “[d]enied without a hearing as the defendant’s motion would already be time barred.” The trial court was apparently under the impression that the two-year period for Carroll filing his 3.850 already had expired.

We dismiss the appeal, pursuant to Manning v. State, 28 So. 3d 971 (Fla. 2d DCA 2010), which is directly on point. In Manning, the Second District Court of Appeal held that when a defendant’s motion for extension of time to file a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850 is summarily denied, “the defendant should not appeal that order, but should instead file the intended motion as soon as possible, alleging the grounds for the motion to the best of the defendant’s ability and further alleging the reason why the motion is untimely.” Id. at 973. The trial court then has the discretion to decide the motion on the timeliness issue or any other dispositive issue. Thereafter, the appellate

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court will review the denial of the motion to extend, if need be, when it reviews the order disposing the postconviction motion. Id. In the case before us, as inManning, Carroll has not even filed a 3.850 motion yet, so neither the trial court nor our Court has any information on the grounds that Carroll is going to pursue in his 3.850 motion.

Consequently, we dismiss the appeal. We note, however, that the Second District stated in Manning that the defendant in that case had delayed filing her postconviction motion because she was awaiting the outcome of her motion to extend time. Id. In the case before us, Carroll is in a similar situation. He has delayed filing his postconviction motion since August 23, 2010, because he was awaiting the outcome of his “Motion to Request Time.” As such, the trial court should not consider from August 23, 2010, through September 9, 2010 (the period during which Carroll was awaiting a ruling from the trial court on his Motion to Request Time”), in evaluating whether Carroll has shown good cause for an extension in any postconviction motion that he files in the trial court during the sixty-day period following our issuance of this dismissal.

Dismissed.

Third District Court of Appeal

State of Florida, July Term, A.D. 2010

Opinion filed December 29, 2010.

Not final until disposition of timely filed motion for rehearing.

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No. 3D10-2315

Lower Tribunal Nos. 06-25355; 06-22516

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Jarvis Crawford,

Appellant,

vs.

The State of Florida,

Appellee.

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

Jarvis Crawford, in proper person.

Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.

PER CURIAM.

Jarvis Crawford appeals the trial court’s summary denial of his motion filed

pursuant to Florida Rule of Criminal Procedure 3.800(a). In case no. 06-22516, on

February 2, 1010, Crawford entered a plea of guilty to armed robbery with a firearm or deadly weapon and possession of a firearm by a convicted felon. On the same day, Crawford was sentenced to five years in prison, followed by seven years probation and two years community control. Crawford was sentenced as a habitual felony offender. He received 1303 days of credit for time served.

In case no. 06-25355, also on February 2, 2010, Crawford entered a plea of guilty to two counts of armed robbery with a firearm or deadly weapon and attempted armed robbery. On the same day, Crawford was sentenced to five years in prison on all three counts, to be served concurrently with the sentences imposed in case no. 06-22516. This prison sentence was followed by seven years probation and two years community control. Crawford was sentenced as a habitual felony offender.

The State claims that the sentence indicated that Crawford would be allowed a total of the specified time as credit for time served prior to the imposition of the sentence, but that the space provided to indicate the amount of credit for time served was left blank.

Crawford then filed his 3.800(a) motion for credit for time served, in which he claims that he is entitled to 1281 days credit for time served. The trial court summarily denied the motion. Crawford then filed this appeal.

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Although the State claims that Crawford has received all the credit for time served to which he was entitled, nothing in the record before us reflects this. The postconviction record before us does not conclusively refute Crawford’s allegation that he did not receive the correct credit for time served.

Accordingly, we reverse the summary denial of Crawford’s 3.800(a) motion. On remand, if the trial court again enters an order summarily denying the motion, the trial court shall attach written portions of the record conclusively refuting Crawford’s claim. See Fla. R. App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded.

Third District Court of Appeal

State of Florida, July Term, A.D. 2010

Opinion filed December 29, 2010.

Not final until disposition of timely filed motion for rehearing.

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No. 3D10-2011

Lower Tribunal No. 97-29034-B

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Ezra Naylor,

Appellant,

vs.

The State of Florida,

Appellee.

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

Clayton R. Kaeiser, for appellant.

Bill McCollum, Attorney General, for appellee.

Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.

ROTHENBERG, J.

In 1999, Ezra Naylor (“the defendant”) was convicted of the first-degree

murder of Shawn Duncombe (“the victim”), and sentenced to life imprisonment.

The defendant appeals the trial court’s summary denial of his 2009 motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

In his motion, the defendant claims he is entitled to a new trial on the basis of newly discovered evidence. The newly discovered evidence is a 1997 statement allegedly made by the now-deceased victim to a fellow inmate, that Jacqueline Mesidor, the arresting officer in this case, “had [the victim’s] back with other polices [sic] and dealers.” Such a claim is subject to a two-prong test: (1) the evidence must have been unknown at the time of trial (and it must appear incapable of being known by the use of due diligence) by the defendant, defense counsel and the trial court; and (2) the evidence must be of such nature that it would probably produce an acquittal on retrial. Jones v. State, 709 So. 2d 512, 521 (Fla. 1997).

We conclude that the first prong of the test has been satisfied. As to the second prong, the trial court found that the “newly discovered evidence” was inadmissible, and thus was not of such a nature that it would probably produce an acquittal on retrial. We review this ruling for an abuse of discretion. Carpenter v. State, 785 So. 2d 1182, 1201 (Fla. 2001).

The trial court found that the victim’s alleged statement was inadmissible as an exception to the hearsay rule because it did not tend to expose the declarant- victim to criminal liability. We agree. See § 90.804(2)(c), Fla. Stat. (2010)

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(providing exception to hearsay rule where the unavailable declarant’s statement is made against his or her pecuniary, proprietary, or penal interest); Perez v. State, 980 So. 2d 1126, 1133 (Fla. 3d DCA 2008) (“Non-self-incriminatory statements, even if they are made within a broader narrative that is generally self-inculpatory, are not admissible.”). Because the victim’s alleged statement does not fall within any of the exceptions to the hearsay rule, we conclude that the trial court did not abuse its discretion in determining that the offered statement was inadmissible. Thus, the defendant’s motion was properly denied.

Finally, we note that a prior panel reviewing the evidence in this case found that there was “overwhelming evidence presented as to Naylor’s guilt.” Naylor v. State, 748 So. 2d 385, 386 (Fla. 3d DCA 2000). This evidence included the accounts of two independent eyewitnesses that bolstered Officer Mesidor’s account of the events surrounding the victim’s murder. Accordingly, the defendant failed to meet his burden of establishing that consideration of the inmate’s statement would “probably produce an acquittal on retrial.” Jones, 709 So. 2d at 521. Therefore, we affirm the trial court’s order denying postconviction relief on the basis of newly discovered evidence.

Affirmed.

Third District Court of Appeal

State of Florida, July Term, A.D. 2010

Opinion filed December 29, 2010.

Not final until disposition of timely filed motion for rehearing.

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No. 3D10-1912

Lower Tribunal No. 91-30023-A-K

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Teresa Lee,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge.

Jiulio F. Margalli, for appellant.

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

Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

This is an appeal from a judgment and sentence entered on July 7, 2010 upon the revocation of probation for the last of a series of violations of the last of a series of terms of probation first imposed upon the appellant for an offense that occurred on April 19, 1991. The sole issue on appeal concerns the alleged invalidity, under the ex post facto doctrine discussed in Calder v. Bull, 3 U.S. 386 (1798), of the 2001 amendment to the “tolling” statute, Fla. Stat. § 984.06(1)(d), pursuant to which the trial court retained and asserted jurisdiction over the proceeding. Subsequent to the filing of the brief of appellant, the Supreme Court decided the controlling case of Shenfeld v. State, 44 So. 3d 96 (Fla. 2010), which rejected the identical claim, based there on the alleged affect of the 2007 amendment to Fla. Stat. § 984.06(1)(d). Shenfeld was taken on conflict jurisdiction, certified by the Fourth District between its decision in Shenfeld, 14 So. 3d 1021 (Fla. 4th DCA 2009), which the Supreme Court approved, and Harris v. State, 893 So. 2d 669 (Fla. 1st DCA 2005) and Frye v. State, 885 So. 2d 419 (Fla. 1st DCA 2004), which directly involved the 2001 amendment and upon which the appellant primarily relied. While Shenfeld specifically declined to “address the constitutionality of the earlier version of the statute,” 44 So. 3d at 102, there is no principled difference in the two statutes as to the legal point in issue. Hence we affirm the judgment and sentence under review on the authority of the

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reasoning in Shendfeld v. State. See also Palmer v. State, 4D09-3980 (Fla. 4th DCA June 23, 2010); Harper v. State, 955 So. 2d 617 (Fla. 5th DCA 2007).

Affirmed.

Third District Court of Appeal

State of Florida, July Term, A.D. 2010

Opinion filed December 29, 2010.

Not final until disposition of timely filed motion for rehearing.

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No. 3D09-3385

Lower Tribunal No. 06-35939

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Ryan Newberry,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice A. Butchko, Judge.

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

Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

Before WELLS, SHEPHERD, and SUAREZ, JJ.

WELLS, Judge.

We affirm Ryan Newberry’s convictions for burglary of an unoccupied

conveyance and grand theft third degree finding no error in the trial court’s denial

of his motion for judgment of acquittal. However, we decline, without prejudice, to address Newberry’s ineffective assistance of counsel claim regarding display of his arms during trial to establish that he had no tattoos. See Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987) (“Generally, ineffective assistance of trial counsel will not be cognizable on direct appeal . . . [although t]here are rare exceptions where . . . the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.”); Rios v. State, 730 So. 2d 831, 832 (Fla. 3d DCA 1999) (acknowledging “that ineffective assistance of counsel is ordinarily not cognizable on direct appeal” and “the limited exception to this general rule, [where] both the deficient performance of counsel and the prejudice to the defendant are apparent on the face of the record”).

Affirmed.