Florida Criminal Law Opinions

JEREMY KNIPP, Appellant,
v.
STATE OF FLORIDA, Appellee.
BRIAN KISER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Polen, J.

As they present identical legal issues, we have combined Knipp v. State, No. 4D09-2364, and Kiser v. State, No. 4D09-2365 for review.¹

Appellant, Jeremy Knipp, appeals the trial court’s order withholding adjudication on two counts of withholding information from a medical practitioner and sentencing him to three years probation. The State cross-appeals the trial court’s order granting Knipp’s motion to dismiss as to one count of trafficking in Oxycodone and one count of possession of Alprazolam.

Page 2

Appellant, Brian Kiser, appeals the trial court’s order withholding adjudication as to one count of withholding information from a medical practitioner and sentencing him to three years probation. The State cross-appeals the trial court’s order granting Kiser’s motion to dismiss as to one count of trafficking in Oxycodone.

As to the charges of withholding information from a medical practitioner (“doctor shopping”), defense counsel and the State agreed to the following facts below, which are the same in each case. The defendant in each case obtained prescriptions from two different physicians in Broward County, and within thirty days from receiving the first prescription, obtained prescriptions for the same medicine from another physician in Broward County. There was no proof that either defendant affirmatively misled a physician or that any physician ever asked either defendant whether he had received a prescription from any other source within the thirty-day timeframe.

Based on the foregoing, defense counsel moved to dismiss the doctor shopping charges on the grounds that neither Knipp nor Kiser affirmatively withheld information regarding the fact they had each obtained a prescription within the previous thirty days. In other words, according to defense counsel, the statute prohibits withholding information from a medical practitioner but does not impose an affirmative duty on an individual to disclose to the practitioner that he has, in fact, obtained another similar prescription within the previous thirty days. In opposing the motion, the State argued that the statute does impose an affirmative duty on an individual to show the doctor that he is entitled to a prescription.

Knipp and Kiser were also charged with trafficking in Oxycodone because the amount of Oxycodone in each man’s possession when he was confronted and searched by the police exceeded the legal limit set by the trafficking statute. In a motion to dismiss, defense counsel argued that the trafficking charges should be dismissed as to each defendant because both Knipp and Kiser possessed a valid prescription for Oxycodone which had been written by a licensed physician, and thus, came within the exclusion provided by section 499.03, Florida Statutes. The State responded that the charges should not be dismissed because where, as here, the prescriptions were obtained in violation of the doctor shopping statute, they are invalid and not within the exception of section 499.03.

The trial court granted in part and denied in part Knipp’s and Kiser’s motions to dismiss. As to the doctor shopping statute, the court

Page 3

determined that “there exists no requirement that an individual first be asked about previous prescriptions in order to have violated section 893.13(7)(a)(8), Fla. Stat.” Accordingly, the court denied the motion to dismiss the doctor shopping counts in each case. On the trafficking counts, the trial court granted the motion, having found at the hearing that each defendant possessed a valid prescription for the drugs in his possession. We affirm.

This court reviews de novo an order on a motion to dismiss. See State v. Santiago, 938 So. 2d 603, 605 (Fla. 4th DCA 2006). When a defendant files a motion to dismiss pursuant to rule 3.190(c)(4), the trial court may dismiss the Information if the undisputed facts do not establish a prima facie case of guilt. State v. Shuler, 988 So. 2d 1230 (Fla. 5th DCA 2008). “A motion to dismiss under subdivision (c)(4) of… rule [3.190] shall be denied if the state files a traverse thatwith specificity denies under oath the material fact or facts alleged in the motion to dismiss.” State v. Kalogeropolous, 758 So. 2d 110, 111 (Fla. 2000) (emphasis in original).

Section 893.13(7)(a)8., Florida Statutes (2008), also known as the “doctor shopping” statute, provides that it is unlawful for any person:

To withhold information from a practitioner from whom the person seeks to obtain a controlled substance or a prescription for a controlled substance that the person making the request has received a controlled substance or a prescription for a controlled substance of like therapeutic use from another practitioner within the previous 30 days.

§ 893.13(7)(a)8., Fla. Stat. (2008). The statute does not define the term “withhold.”

It is undisputed that Knipp obtained prescriptions from two separate practitioners within three days of one another — one on November 3, 2008 and the next on November 6, 2008. Similarly, it is undisputed that Kiser obtained prescriptions from two separate practitioners within a two-day span — one on December 1, 2008 and another on December 2, 2008. Neither Knipp nor Kiser contended that they had not sought these prescriptions.

The sole issue below and on appeal is whether the statute requires an individual to volunteer information to the practitioner that he has received a prescription of like therapeutic use within the previous thirty days. Read in its entirety, the statute refers to an individual who “seeks to obtain a controlled substance or a prescription for a controlled

Page 4

substance” and also uses the word “request.” Whether an individual has actually withheld information in violation of the statute depends on whether s/he requested a controlled substance and failed to disclose the fact that s/he received a drug of like therapeutic use within the previous thirty days. In other words, the statute requires that an individual affirmatively requesting a substance provide information to the practitioner.

The appellants stake their claim of ambiguity in the statute on the word “withhold.” The statute’s use of the term “withholding” is not ambiguous. The meaning ascribed by most dictionaries is “to hold something back” or “to refrain from giving or granting”² to define “withhold.” Whether one substitutes “hold back” or “refrain from giving” for “withhold,” the statute unambiguously makes it a crime for a person seeking a prescription for a controlled substance not to inform the physician that the person has already obtained a prescription for the same or similar substance within the last thirty days. The statute does not qualify the withholding of information by requiring an affirmative request for such information.

Significantly, appellants do not contest that portion of the charge that they had sought the controlled substances. Instead their sworn affidavits emphasize the fact that the doctors they saw did not ask if they had obtained the same or a similar controlled substance within thirty days. Accordingly, based on the record before the trial court, we affirm the denial of the motion to dismiss as to the doctor shopping charges.

As to granting the motions to dismiss on the drug trafficking charges, we also affirm. The State agreed below that both Knipp and Kiser possessed a prescription issued by a licensed practitioner in the normal course of business. Where the State does not dispute these facts, the defendant has successfully raised the valid prescription defense. See O’Hara v. State, 964 So. 2d 839 (Fla. 2d DCA 2007). Therefore, the trial court did not err in granting appellants’ respective motions to dismiss as to the drug trafficking charges.

Affirmed.

Warner, J., concurs specially with opinion.

Farmer, J., concurs specially with opinion.

Page 5

Warner, J., concurring specially.

I concur in the majority opinion. To require a physician to ask about medications before the patient is required to reveal prior prescriptions not only has no statutory basis, but it would also encourage the unscrupulous doctor not to ask questions simply to fill prescriptions to increase the physician’s income and business. With the increase of “pill mills” in South Florida, such conduct is not unthinkable. See, e.g., Deonarine v. State, 967 So. 2d 333, 335 (Fla. 4th DCA 2007)(noting, in case where physician was found guilty of trafficking in controlled substances, that he prescribed drugs without obtaining the patient’s medical history). We should not provide additional methods of skirting the law to those who would “doctor shop” to obtain controlled substances for both personal use and profit, whose overuse causes thousands of deaths each year.

Farmer, J., concurring specially.

I agree with the analysis and outcome. On the issue of withholding, I write to emphasize that section 893.13(7)(a)8. applies only when the defendant expressly sought — that is, asked the physician for — that specific drug. Under the facts presented to the trial court in this case, defendants admitted they asked for this specific substance. It is a fair reading of the term withholding — when applied in the circumstance of this case — to say: “if you ask for it specifically, you must not hold back your recent prescription history involving that drug in your request for it.”

To my mind, it would be a different matter if the defendant had instead merely stated his complaints and symptoms to the physician and asked whether something could be prescribed. In that alternative scenario, I do not read this statute to require the patient to volunteer recent prescriptions.

Moreover I do not agree there is any burden placed on physicians to ask for current or recent medications. Physicians are not soldiers in the “war on drugs.” But it is a fact of medical practice that multiple medications may interact with each other adversely. Hence physicians must at all times be aware of the possible effects of a new medication on the patient in light of his current meds. As I read the informed consent

Page 6

laws in Florida, ³ physicians are already under a statutory burden to ask for that information from any patient for whom they would prescribe another medication.

Appeals and cross-appeals from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michele Towbin Singer, Judge; L.T. Case Nos. 08-21364 CF10A (Knipp) and 08-22904 CF10A (Kiser).

Howard Finkelstein, Public Defender, and Jason B. Blank, Assistant Public Defender, Fort Lauderdale, for appellants.

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. To be clear, Knipp and Kiser were not co-defendants below. However, they were each charged with withholding information from a medical practitioner and trafficking in oxycodone (among other charges), based on nearly identical incidents. The defendants were represented by the same defense counsel and filed identical motions to dismiss. The trial court’s ruling on the motions was also the same in each case, and the issues on appeal and cross-appeal are identical.

^2. See http: //www.onelook.com/?w=withhold&ls=a.

^3. See § 766.103(3)(a)2, Fla. Stat. (2010) (physician must furnish patient with sufficient pertinent information to give reasonable general understanding of substantial risks and hazards inherent in proposed treatment).
——–

Courtesy of David Edelstein

Bookmark It

Hide Sites

JEAN THERMIDOR, Appellant,
v.
STATE OF FLORIDA, Appellee.

Hazouri, J.

Jean Thermidor was charged by information with one count of armed robbery with a firearm which occurred on June 21, 2006. The state filed a notice of intent to offer Williams¹ rule evidence under rule 90.402. A hearing was held and the trial court granted the motion. At trial, Thermidor was convicted of the lesser included offense of robbery and sentenced to fifteen years in prison. He appeals that conviction. We reverse, finding the trial court erred in admitting into evidence the prior uncharged crime of armed robbery which occurred on March 10, 2006.

The state’s first witness at trial, Kizzie Woods, testified that on the evening of June 21, 2006, she was at her home in Pompano Beach at about midnight. She was on the porch or stoop of her apartment when she saw a man across the street who came up to speak with her and called himself Roody. She got his phone number in order to talk and maybe go out. He asked her to call him a cab, which she did from her cell phone. The cab company asked for her number, the pickup address, which was her address, and she gave them Roody’s name. She stayed outside and saw Roody get in the cab and leave. She called him later on that evening and spoke with him. He said he was going home. She identified Roody in a lineup and identified him in the courtroom as Thermidor.

The victim, Jehad Ahmad, testified he has been employed as a Yellow Cab driver since 1994 and worked on June 21, 2006. He started that

Page 2

shift at 10:00 P.M. on June 20. Cab drivers are dispatched by computer and he accepted a call from Pompano Beach having made other pick-ups in that area. A lady, Ms. Woods, and a gentleman were waiting.² She was outside with Roody, which is the name the computer gave him. Roody got in the rear passenger seat. Ahmad’s cab did not have a partition. Roody gave him an address of 56th and Oakland Park Boulevard in Lauderhill.

When Ahmad picked up a late-night fare, he asked for the money up front. He told Roody it was a long distance and the cost was $40. Roody handed him the money with no problem. Ahmad described the route he took.

When Ahmad was approaching the Turnpike on Oakland Park Boulevard west, he saw Roody on a cell phone. He heard him talking but did not hear what he was saying. As he approached 56th, he had a bad feeling so he made a u-turn and went to Denny’s to drop off his passenger. Roody refused to be dropped off there saying he lived a block away. Having no choice, Ahmad drove Roody to Inverrary Village according to Roody’s directions. Once inside, Roody told Ahmad to turn right, go all the way down, make a left, make a right, go all the way down and make another right. He was at a dead end, facing a building. Ahmad put the car in park and turned to give change back to his passenger, at which time two men approached the cab. One of the men had a gun. Roody “flew up” to the front seat and got the keys from the ignition. Roody did not have a gun.

The man with the gun and Roody both asked Ahmad where his money was. Roody searched Ahmad’s socks, pants pockets, and all over. He held Ahmad’s head down between the two front seats. Ahmad gave him the money and Roody continued holding his head down. Ahmad told him his wallet was in the glove compartment. Roody took the wallet with $80 in it, the money in his pocket, as well as the money Roody had given him earlier. He also took Ahmad’s cell phone. Ahmad thought the man with the gun wanted to shoot him. Eventually the two men from outside left. Roody kept holding his head down, then opened the door and threw the keys as he ran away. Ahmad drove to the security office and they called the police. Later he met Detective Brian Hardy of the Lauderhill Police Department. Ahmad was shown a lineup, but was not able to make an identification. Although Ahmad testified that he would know Roody if he saw him, Ahmad could not identify him in court.

Page 3

Pursuant to the trial court’s ruling on the admissibility of the Williams rule evidence, the state called Sylvain Pluviose to testify about the prior uncharged crime of armed robbery. On March 10, 2006, Pluviose was employed as an independent contractor for Yellow Cab and was working in the Plantation area when he was dispatched to the Plantation Inn Motel. The name of the passenger on the computer was Mike. He was outside and ready to go when he arrived. The man confirmed his name was Mike. During a short conversation, Mike told him to go to 56th Avenue and 29th Street, which was Inverrary Village in Lauderhill, where Pluviose made a lot of drops.

When it’s late, taxi drivers try to drop a fare off at the entrance, but Mike did not want to be dropped off there, so Pluviose proceeded into the complex. Pluviose was told to go right and then left and they ended up at a dead end. When he stopped the cab, the passenger opened the door and as he stepped out of the cab, he pulled a gun from his waist. Pluviose realized he was being robbed. He told the passenger not to do anything stupid and asked where the money was. Pluviose then ran out of the cab.

Pluviose ran to some bushes about 100 meters away and hid. He ran because getting out of the dead end would have been a hard maneuver. He had his cell phone when he ran and he called the police. He identified Thermidor in a photo lineup. He also identified him in court.

In its order granting the state’s motion pertaining to Williams rule evidence, the trial court found the following similarities:

[T]he victim’s [sic] are taxi cab driver’s [sic]. The victim’s [sic] both picked up the defendant after midnight and were instructed to drive to the Inverrary Village Apartment complex located at the 2900 block of NW 56th Avenue. Once inside the complex the defendant used very direct and specific instructions to lead the victim’s [sic] to the back of the complex. This area of the complex is a dead end. The two victims’ [sic] were then robbed at gunpoint. They both identified the defendant out of a photo lineup. The defendant lives 150 yards away from Inverrary Village apartments.
The Dissimilarities in these cases are that… once the defendant arrived at the dead end at the Invennary [sic] Village Apartment Complex, the victim was approached by the two other males, and with the assistance of the

Page 4

defendant, was robbed at gunpoint. In [the other case] the defendant had a gun on his person and robbed the victim by himself.

Thermidor argued to the trial court that the facts in each case were not so unique and similar to allow collateral crime evidence. The state argued that the evidence would show identity and modus operandi.

The Williams rule was codified in section 90.404(2), Florida Statutes (2005), which provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

In Williams v. State, 662 So. 2d 419 (Fla. 3d DCA 1995), the Third District applied this rule and held:

Relevant evidence of similar crimes may not be admitted merely to prove bad character or propensity to commit crime. To prevent this, Williams rule analysis must be strictly, not loosely, applied. Proper Williams rule evidence is that which possesses “obvious and telling similarities” to the crime charged. Especially when proferred [sic] to prove identity, Williams rule evidence must indicate circumstances so unique as to point only to the defendant.

Id. at 420 (citations omitted). “To be admissible under the Williams rule, the identifiable points of similarity must pervade the compared factual situations, and, if sufficient factual similarity exists, the facts must have some special character or be so unusual as to point to the defendant.” Thompson v. State, 494 So. 2d 203, 204 (Fla. 1986). “[S]imilar fact evidence regarding a party whose conduct is in question ‘is not competent to prove the commission of a particular act charged against him, unless connected in such a way as to indicate a relevancy beyond mere similarity in certain particulars.’” Williams, 110 So. 2d at 659 (citation omitted).

The similarities in the instant case were (1) both cab drivers picked up a black male and drove him to Inverrary Village. Ahmad testified that he had taken fares there on other occasions. (2) Both crimes were armed

Page 5

robbery of a cab driver. (3) The robberies occurred at the same location, Inverrary Village, at a dead end street. The state asserts that very specific directions were given to the dead end street. However, the directions given to each of the drivers were not exactly the same, according to the testimony, and contrary to the state’s assertion, it is not clear from the testimony that they went to the same dead end street.

The dissimilarities between the two cases were that (1) Thermidor carried a gun and committed the crime alone in the collateral crime case and in the instant case there were two other robbers, one of whom possessed the gun; (2) with respect to the actual robberies, the evidence did not show that how the robber(s) proceeded were similar in any way, except that they both involved taking money from the cab drivers; and (3) robbery of cab drivers is a common occurrence in South Florida and elsewhere, and does not constitute a signature-type crime.

In this case, it appears that the dissimilarities outweigh the similarities, especially in light of the addition of two other robbers in the instant case. Furthermore, there does not appear to be anything especially unique about the circumstances to point to Thermidor and only Thermidor. The admission of collateral crimes evidence is subject to the abuse of discretion standard of appellate review. Gadson v. State, 941 So. 2d 573, 575 (Fla. 4th DCA 2006). The trial court abused its discretion in this case due to the lack of anything special, unusual, or unique about the robberies of these two cab drivers.

The state argues that if it was error to admit evidence of the collateral crime, it was harmless because the testimony at trial from Ms. Woods proved that Thermidor was in the taxi cab riding to Inverrary. Therefore the state asserts that the identification of Thermidor did not rest only on the collateral crime evidence. Of course the state’s argument overlooks the fact that the victim, Ahmad, was unable to identify Thermidor as the perpetrator of the robbery. Additionally, if the state had proven identity to its satisfaction by the testimony of Ms. Woods, there was no need to introduce collateral crime evidence to prove identification. The collateral crime evidence, however, did show Thermidor’s propensity for committing robberies. Admission of irrelevant fact evidence is “presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.” Robertson v. State,829 So. 2d 901, 913-14 (Fla. 2002) (citations omitted). We conclude that the state has not overcome this presumption of harmful error and has not shown beyond a reasonable doubt that the error was harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

Page 6

Since we are reversing this case for a new trial, we also address Thermidor’s assertion that the trial court erred in prohibiting his counsel from attempting to impeach Ahmad by use of his pretrial deposition. The trial court prohibited the use of Ahmad’s deposition for impeachment purposes because the deposition had not been filed with the court. There is no requirement that a pretrial deposition be filed with the court in order to be used at trial for impeachment purposes. See Smith v. State, 594 So. 2d 846, 847 (Fla. 2d DCA 1992).

Reversed and remanded for a new trial.

Ciklin and Levine, JJ., concur.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 06-11905 CF10A.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

——–

^1. Williams v. State, 110 So. 2d 654 (Fla. 1959).

^2. Ahmad testified he had just seen the same lady, Ms. Woods, leave the courtroom.
——–

Courtesy of David Edelstein

Bookmark It

Hide Sites

Johnny Wade, Appellant,
v.
The State of Florida, Appellee.

Not final until disposition of timely filed motion for rehearing.

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

Andrew F. Rier, for appellant.

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

Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.^*

PER CURIAM.

Johnny Wade (“the defendant”) appeals from his conviction and sentence for robbery and burglary. We affirm.

Page 2

Katherine Hernandez picked up Sara Hurtado and Gisela Carpio from the airport. As Hurtado and Carpio entered the apartment where they were staying, a black male snatched their purses and ran. Hernandez, who had been parking her car, wrote down the license plate of a car driving away from the scene. The license plate was registered to the defendant. Subsequently, the police showed Hurtado a photo line-up, and she identified the defendant as her assailant. Consequently, the State charged and tried the defendant for the crimes of robbery and burglary.

The first trial resulted in a mistrial. At the second trial, the prosecutor began his opening statement by sitting in the witness box, and stating:

How would State prove that the Defendant’s guilty of these crimes…? Well, members of the Jury, it will begin right here. This chair that I’m sitting in as will witnesses that will come to you and bring to you a credible telling of what happened, of the robbery, of the burglary with battery.

Defense counsel did not object to the prosecutor’s opening statement.

Subsequently, the State introduced the police photo line-up through Hurtado, who testified that she identified the defendant’s photograph from the line-up. Assuming that the State intended to call the police officer who investigated the case, defense counsel did not object contemporaneously to this evidence. When the State rested without calling the police officer, defense counsel objected to the photo line-up on the ground that it lacked a predicate. The trial court stated that the jury could decide for itself whether the defendant’s photograph was part of the

Page 3

line-up, and overruled the objection. The jury found the defendant guilty of the crimes charged, and the trial court sentenced him to life in prison.

On appeal, the defendant contends that the prosecutor’s opening statement constitutes fundamental error. The defendant also contends the trial court erred in allowing the photo line-up into evidence without a proper predicate. On the other hand, the State asserts that any error in the opening statement was waived by defense counsel’s failure to object contemporaneously, and that the error is not fundamental. Additionally, the State asserts the trial court correctly admitted the photo line-up. We agree with the State.

Turning first to the prosecutor’s opening statement, it is well settled that “prosecutors may not directly or indirectly express their opinions as to the credibility of witnesses or the guilt of the defendant.” See Martinez v. State, 761 So. 2d 1074, 1081 (Fla. 2000). The failure to raise a contemporaneous objection to an improper argument, however, waives the error, unless the argument rises to the level of fundamental error. See Poole v. State, 997 So. 2d 382, 390 (Fla. 2008).

A fundamental error is one which affects the validity of the trial to such an extent that the verdict would not have been obtained but for the error. Lawrence v. State, 831 So. 2d 121, 134 (Fla. 2002). Here, although improper, the prosecutor’s statements were not so prejudicial or pervasive as to invalidate the whole trial and the jury’s verdict.

Page 4

Next, regarding the admission of the photo line-up, any witness can testify that a photograph is a fair and accurate representation, and the photographer’s testimony is not necessary to authenticate the photograph. See Charles W. Ehrhardt, Evidence § 401.2 (2010 ed.). Here, Hurtado testified that she recognized the defendant from the photograph in the line-up. We determine that the predicate was sufficient. Further, there was no need for the police officer to either authenticate the accuracy of the photograph, or to verify the eyewitness’ identification of the defendant from the photograph. Thus, the trial court properly admitted the photo line-up into evidence.

Accordingly, we affirm the defendant’s conviction and sentence.

Affirmed.

Salter, J., concurs.

Page 5

RAMIREZ, J. (dissenting).

I dissent.

The majority opinion relies on Ehrhardt, but does not address how the photographic line-up was shown to be relevant without anyone testifying that the photograph which the witness identified was the photograph of the defendant. As Ehrhardt states: “Photographs, when properly authenticated, are admissible to prove a material fact in the lawsuit.” See Charles W. Ehrdardt, Florida Evidence, § 401.2 (2007 ed.) I agree with the majority that any witness can testify that a photograph is a fair and accurate representation, and that the photographer’s testimony is not necessary to authenticate the photograph. But in this case, no one testified that the photograph was a fair and accurate representation. No one even testified that it was what it purported to be—a photograph of Johnny Wade, let alone that it was a fair and accurate representation of Wade.

The witness was shown a photographic line-up containing either six photographs or twenty-four photographs. She testified that she identified photograph # 3. This is relevant only if that is the photograph of the defendant. Without the officer that prepared the line-up to establish the identity of the individual who was actually portrayed in photograph #3, the line-up is not relevant to this case. All the State established through the questioning of the victim was

Page 6

that the lineup was not suggestive. She was never asked if that was a fair and accurate representation of the defendant. Even if asked, she would not be qualified to answer. The majority opinion states that “Hurtado testified that she recognized the defendant from the photograph in the line-up.” See supra Respectfully, all she testified to was that she identified photograph #3 as the person who attacked her. There was no testimony that photograph #3 was in fact a photograph of Wade.

The trial court addressed the issue by saying that “in the pictures you can see that it is the defendant, the [j]ury can clearly see that and or they can disagree.” Respectfully, the judge and jury can only see that the individual in photograph # 3 looks like Wade, but they have no way of knowing if that is in fact a photograph of Wade. There is no precedent for allowing the judge or the jury to provide the link so as to prove the relevance of a photograph. It would be like admitting the photograph of an intersection where an accident took place by saying that “you can see in the picture that it is the intersection. The jury can clearly see that.”

Here the State, as the proponent of the photographic line-up, must establish as a predicate for its admission that the it fairly and accurately represents what it purports to depict. Only if a “picture… i[s] verified as a true representation of the subject about which testimony is offered, is [it] admissible in evidence.” Adams v. State, 10 So. 106, 113 (1891), overruled in part Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308, 311 (Fla. 1982). A witness (who need not

Page 7

have been the photographer) who saw what a photograph portrays can testify to the photograph’s fairness and accuracy. See, e.g., Hillsborough Cnty. v. Lovelace, 673 So. 2d 917, 918 (Fla. 2d DCA 1996). The only exception I have found under our case law is through the “silent witness” theory. See Hannewacke, 419 So. 2d at 311; Wagner v. State, 707 So. 2d 827, 831 (Fla. 1st DCA 1998). But before photographic evidence may be admitted into evidence on the “silent witness” theory, the trial judge must first determine it to be reliable, after having considered the following:

(1) evidence establishing the time and date of the photographic evidence;
(2) any evidence of editing or tampering;
(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;
(4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and
(5) testimony identifying the relevant participants depicted in the photographic evidence.

Bryant v. State, 810 So. 2d 532, 536 (Fla. 1st DCA 2002). None of that happened here. The trial court left it up to the jury to provide the foundation. The majority opinion does not address the issue.

I do not believe the error in admitting the line-up was harmless. Wade’s first trial resulted in a hung jury. There was no physical evidence connecting Wade to

Page 8

the crime. There were three witnesses to the crime but only one identified Wade. Another witness recorded the license tag of the getaway car and it was tied to Wade, but no confession or other admission was ever elicited from Wade. During the trial, Wade received marginal representation. The prosecutor repeatedly vouched for the credibility of the witnesses during the opening statement and closing argument, without objection. The prosecutor was allowed to question the panel during voir dire for several pages in the transcript, about trafficking in cocaine, without objection. The State did not charge Wade with trafficking in cocaine. Drugs had nothing to do with the case. Next, the prosecutor was allowed to question the prospective jurors about battery, without objection. The State did not charge Wade with battery. Next, the prosecutor questioned the jury about murder, the principal theory, and bank robbery, all without objection. The State charged Wade with none of these. Then the prosectuor questioned the jury about murder during the bank robbery. Also, without objection, was the hearsay testimony from Hurtado that she identified the person who had attacked her. Hurtado testified that she was shown four sheets of photos containing twenty-four photos, but the State only introduced the one line-up consisting of six photos. Finally, the photographic line-up played a prominent part in the prosecutor’s closing argument. For these reasons, I do not believe we can conclude that the admission of the line-up was harmless error.

——–

^*. Judge Salter did not participate in oral argument.
——–

Courtesy of David Edelstein

Bookmark It

Hide Sites

OSCAR AVILEZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

Polen, J.

Appellant seeks review of his convictions for sexual battery with a deadly weapon and burglary with assault. Appellant raises multiple issues on appeal, but we write only to address his argument that the trial court erred in overruling his hearsay objection to a State witness’s testimony that she had personally assigned a key card to appellant. We agree with the State that the subject testimony was not hearsay, and affirm.

In August of 2004, L.A.R. worked as a mobile service manager at the InTown Suites Hotel. L.A.R. helped open the new hotel and was required to live there. Approximately one week before the incident, L.A.R. met appellant, a maintenance man at the hotel. L.A.R. testified that she and appellant did not have a relationship. At approximately 3:00 a.m. on September 3, 2004, L.A.R. woke up to the sound of her hotel room door opening. L.A.R. recognized the intruder as appellant. He was carrying a knife. L.A.R. testified how, over the course of an hour, appellant sexually battered her while holding the knife to her. Appellant’s key card was later found in L.A.R.’s hotel room.

While cross examining L.A.R., defense counsel asked about a lock report:

Q…. you also have or had at the time an all access key card to the hotel, right?
A. Yes, ma’am.

Page 2

….

Q. And you — with these key cards, you have the ability of generating a lock report?

A. Yes, ma’am.

Q. From–

A. Yes, ma’am.

Q.–the key card?

A. Yeah.

Q. And approximately how many transactions will that lock report print out?

A. Twenty-five to 50 depending on how the parameters are setup at that property.

Q. So 25 to 50 of the past transactions.

A. Yes, ma’am.

Q. On that lock, correct?

A. Yes, ma’am. The date time [sic] and the exact electronic key that opened it.

Thereafter, the defense objected when the State attempted to elicit testimony about the contents of the lock report on redirect examination:

Q. [Prosecutor] Now, before you left that day and went home, left Palm Beach County, did you see a lock report for your room?
A. [L.A.R.] I did see a lock report for my room, yes, ma’am.
Q. And looking at that lock report were you able to see that?
[Defense counsel]: Objection; your Honor; hearsay.
….

Page 3

[The State]: Judge, it’s not hearsay. It’s… electronically generated. It’s not person [sic].
The Court: Well, it’s not been established.
[The State]: Okay.
The Court: Sustained.

L.A.R. then proceeded to describe what a lock report is and how it works. L.A.R. testified:

It is generated by the small printer, like a receipt printer, and it has a port like a computer port on it. And it’s a-there’s a hand held battery operated basically computer with a port, and on the bottom part of the lock where you would never notice it there’s a hole and you plug the port into the hole and you read the lock. And it downloads everything, and you take this hand held portable reading to the office to the main terminal that makes all the locks–all the keys, and you plug it in and you would download the lock report.
And from the main terminal console, you print it and it prints out, and it says, as I said, however, the parameters are set whether it’s ten, 25, 50, they’re normally five or more, the exact date and time in military time, and the key card number that opened the door, whether it’s–if it’s a guest room key, a regular guest room key, it will have just a room number. If it’s a staff key, it will say housekeeping one or manager three or whatever.

The witness further explained that a lock report is similar to a Caller ID, stating: “No human can put information into the lock. No human can put information into the hand held except telling it to download the lock report or load the lock report or print the lock report. You can’t change anything, print anything or add anything or delete anything.” At this point, the State asserted that it had established the information from the lock report was not hearsay, noting: “It’s not a person, it’s an electronic device that prints out numbers. The case law is clear that Caller ID, for example, is not hearsay. The officer can read off when he reads off the Caller ID, so likewise, it should be similar.” Defense counsel objected to the information on the lock report being admitted, arguing in part that it was hearsay and not the best evidence. The trial court overruled these objections.

Page 4

Thereafter, L.A.R. testified that the lock report showed that appellant’s card was used to access her room at 3:00 a.m., and the next entry made to her room was an hour and four minutes later by Ms. Meredith, the other mobile service manager. Over defense objection, Detective Byrd testified that he took possession of the lock report, which showed that L.A.R.’s room had been accessed by appellant’s key card, and the lock report was lost after the detective submitted it to the evidence room.

Carol Meredith was also a mobile service manager who lived at the hotel. Meredith had hired appellant for the maintenance position. Meredith testified that employees sign in and out for keys. Over appellant’s hearsay objection, Meredith testified that she had previously looked at the log-in sheet and determined that the card key found in L.A.R.’s room had been assigned to appellant. Detective Byrd also testified over hearsay objection that the key that opened the room at 3:00 a.m. had been signed out to appellant. Appellant claims it was error to allow these State witnesses to testify that appellant signed out the key card that was found in, and used to open, L.A.R.’s room. We disagree and affirm.

“The standard of review of a trial court’s decision on the admissibility of evidence is generally an abuse of discretion standard. However, the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Burkey v. State, 922 So. 2d 1033, 1035 (Fla. 4th DCA 2006) (citing K.V. v. State, 832 So. 2d 264, 265-66 (Fla. 4th DCA 2002)). Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2004).

Meredith testified that she had assigned a key card to appellant. When she found a key card in L.A.R.’s room, Meredith said she looked at the key log to refresh her memory that the card she found was the one she issued to appellant. We therefore find that Meredith’s testimony was not hearsay, but based on her own actions in assigning that key card to appellant. See § 90.801(1)(c). To the extent that Meredith’s testimony revealed the contents of the key “log” or “lock report,” neither did this testimony constitute hearsay, as the key lock printout is not a statement generated by a person.

“The Florida Evidence Code characterizes hearsay in terms of statements made by ‘persons.’” Bowe v. State, 785 So. 2d 531, 532 (Fla. 4th DCA 2001). Subsection 90.801(1)(c) defines hearsay as including an

Page 5

out-of-court “statement” of a declarant. Subsection (1)(b) defines a “declarant” as a “person who makes a statement.” “Therefore, only statements made by persons fall within the definition of hearsay.” Bowe, 785 So. 2d at 532. In the Bowecase, the court found that “caller I.D. display and pager readouts are not statements generated by a person, so they are not hearsay within the meaning of subsection 90.801(1)(c).” Id. We agree with the State’s analogy of a lock report to caller I.D.

Finally, even if the trial court erred in allowing Detective Byrd to testify that the “card had been signed out to the defendant,” the error was harmless because Meredith testified that she personally assigned that key card to appellant. See Heuss v. State, 660 So. 2d 1052, 1057 (Fla. 4th DCA 1995) (finding admission of a hearsay statement harmless where the testimony was cumulative of properly admitted evidence).

We affirm on the remaining issues without comment.

Affirmed.

Warner and Levine, JJ., concur.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge; L.T. Case No. 2006CF0 12143AXX.

Carey Haughwout, Public Defender, and Jeffrey Anderson, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

KIRK OLIVER BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Damoorgian, J.

Defendant, Kirk Brown, who was pro se at trial, appeals his judgment and sentence for driving while license revoked-habitual offender and leaving the scene of an accident-causing property damage, raising one issue for our consideration. We affirm defendant’s judgment and sentence.

By way of background, defendant rear-ended a vehicle which had suddenly braked to avoid an accident. The occupants of the forward vehicle exited the vehicle, whereupon defendant, who was accompanied by two female passengers, fled the scene. Defendant was eventually caught and held by several of the occupants in the vehicle he hit until the police arrived. Defendant told the police that his girlfriend was driving his vehicle because his license was suspended. Defendant’s girlfriend initially stated that she was the driver; however, she later admitted that defendant was the driver. Upon checking defendant’s records, the police confirmed that defendant’s license was suspended and that he was a habitual traffic offender. Defendant was charged with driving while license revoked-habitual offender and leaving the scene of the accident-causing property damage.

At trial, defendant maintained that his girlfriend was driving his vehicle at the time of the accident and elected to testify on his own behalf. The trial court conducted a thorough and proper examination and found that defendant knowingly and voluntarily waived his right to remain silent. Outside the presence of the jury, the State requested that defendant be required to proffer his testimony to the court. Although not

Page 2

articulated by the State, we presume that it was to ensure that defendant, who was representing himself, would not say something that might jeopardize the integrity of the trial. The trial court granted the State’s request, adding that the State would be required to proffer its cross-examination with defendant providing his responses. Defendant did not object to the trial court’s ruling or its instructions. In his proffer, defendant testified, among other things, that his girlfriend was driving the SUV on the date in question and that he sustained injuries from the individuals while they were restraining him.

The trial proceeded, and in the presence of the jury, defendant again testified that he was not the driver of the SUV and that he was injured by individuals who chased him down. Ultimately, the jury found defendant guilty, as charged.

Defendant contends that the trial court infringed upon his constitutional rights to self-representation and to remain silent by requiring him to proffer his testimony, and by allowing the State to crossexamine him prior to testifying before the jury.

“Generally, a defendant must raise a contemporaneous objection… to preserve an issue for appellate review. If the defendant fails to object at trial, then the defendant may raise the issue on appeal only if fundamental error occurred.”Richards v. State, 39 So. 3d 431, 433 (Fla. 2d DCA 2010) (citation omitted); see also Caraballo v. State, 39 So. 3d 1234, 1249 (Fla. 2010) (“Fundamental error is that which ‘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.’” (quoting Brooks v. State, 762 So. 2d 879, 899 (Fla. 2000))).

In this case, defendant did not object to the State’s request that he proffer his testimony or to the trial court’s actions. Therefore, defendant’s argument is not preserved for review, and he must demonstrate that the trial court committed fundamental error. See Richards, 39 So. 3d at 433.

Throughout the trial, defendant experienced difficulty in understanding substantive and procedural matters, particularly during voir dire and questioning of the State’s witnesses. Although we do not sanction the trial court’s actions, a trial court has wide discretion in regulating the conduct of trials so that the administration of justice may

Page 3

be fairly achieved in an orderly manner.¹ See Hahn v. State, 58 So. 2d 188, 191 (Fla. 1952); Arbogast v. State, 266 So. 2d 161, 162 (Fla. 3d DCA 1972). Defendant was given the appropriate warnings about the consequences of testifying, and knowingly and voluntarily waived his right to remain silent. Defendant cannot now be heard to complain that his Fifth Amendment privilege against self-incrimination was violated when he was required to reveal his testimony and be subject to crossexamination in advance of testifying before the jury. See Brown v. U.S., 356 U.S. 148, 155-56 (1958); Jenkins v. Wessel, 780 So. 2d 1006, 1008 (Fla. 4th DCA 2001).²

Accordingly, no fundamental error occurred in the trial court’s actions.

Affirmed.

May and Gerber, JJ., concur.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Cynthia L. Cox, Judge; L.T. Case No. 562007CF003729A.

Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

——–

^1. The trial judge went to great lengths to ensure that the pro se defendant in this case received a fair trial. Moreover, we do not question the trial court’s motivation in connection with its actions under review.

^2. See McKaskle v. Wiggins, 465 U.S. 168, 174 (1984) (“A defendant’s right to self-representation plainly encompasses certain specific rights to have his voice heard. The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.”). Not once did the trial court restrict defendant’s proffered or actual testimony, except his use of inappropriate language.

Courtesy of David Edelstein

Bookmark It

Hide Sites

KEVIN L. BURNS, Appellant,
v.
STATE OF FLORIDA, Appellee.

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

Appeal from the Circuit Court for Pasco County; Wayne L. Cobb, Judge.

James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.

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

LaROSE, Judge.

Kevin Burns appeals an order revoking his probation and sentencing him to prison. See Fla. R. App. P. 9.140(b)(1)(D). The trial court required his counsel to represent him at the revocation hearing, despite an alleged conflict between Mr. Burns

Page 2

and counsel. Mr. Burns claims that the trial court should have held a hearing to explore the nature and extent of the alleged conflict. We agree and reverse.

FACTS

The State charged Mr. Burns with multiple counts of burglary. Upon advice of counsel from the Public Defender’s Office, Mr. Burns pleaded no contest. The trial court withheld adjudication, sentenced Mr. Burns to a suspended term of six years’ imprisonment, and placed him on probation for six years.

Mr. Burns twice violated his probation. Each time, the court reinstated probation. Upon a third violation, the trial court scheduled a revocation hearing.

Another lawyer from the same Public Defender’s Office represented Mr. Burns in the revocation proceedings. Prior to the hearing, however, Mr. Burns filed a pro se motion to correct illegal sentence. He alleged that his original counsel provided incorrect information when advising him to enter a plea; thus, the plea was neither knowing nor voluntary.

At the revocation hearing, Mr. Burns’ new counsel advised the trial court of the potential conflict of interest and asked to withdraw. The trial court took a short recess so counsel could speak with her supervisor. After the recess, counsel’s supervisor appeared at the hearing. He told the trial judge that there was no motion to withdraw because private counsel (who did not appear for Mr. Burns) told him that Mr. Burns was going to withdraw his pro se motion. The supervisor then said, “[I]f [Mr. Burns] would like to waive the conflict… we’re happy to go forward….” Mr. Burns never waived the conflict, and he never withdrew his pro se motion. The trial court ordered counsel to continue representing Mr. Burns. Ultimately, the trial court found that Mr. Burns had violated his probation and sentenced him to six years in prison.

Page 3

ANALYSIS

We surmise that the trial court ordered counsel to continue representing Mr. Burns because his motion was filed pro se. Ordinarily, a pro se motion filed by a represented party is a nullity. Smith v. State, 21 So. 3d 72, 74 (Fla. 1st DCA 2009). This general rule, however, is not unyielding. Sheppard v. State, 17 So. 3d 275, 285 (Fla. 2009). A represented defendant’s pro se motion is not a nullity when it asserts an adversarial relationship between the defendant and defense counsel. Id. at 285; see also Smith, 21 So. 3d at 74-76. A pro se motion presents an adversarial relationship when it alleges “counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea.” Sheppard, 17 So. 3d at 287.¹ InSheppard, the Florida Supreme Court articulated the rationale for this exception:

[If these allegations are treated as a nullity,] [t]he administration of justice is further frustrated by the consequence that these allegations, once stricken because a defendant is represented by counsel, may reappear on postconviction in allegations of ineffective assistance of counsel[,] requiring both the State and defense counsel to respond to those allegations later rather than sooner.

Id. at 286.

Once a defendant files a pro se motion alleging an adversarial relationship, the trial court must determine whether an adversarial relationship does exist. Id. at 287. The trial court must hold a hearing at which the defendant, defense counsel, and the State are present. Id. If the trial court determines that an adversarial relationship exists between the defendant and defense counsel, it must appoint conflict-

Page 4

free counsel to represent the defendant unless the record conclusively refutes the defendant’s allegations. Id.

Mr. Burns’ allegations are sufficient to invoke the Sheppard procedure. Mr. Burns alleged that his original counsel misadvised him and rendered the plea unknowing and involuntary. The trial court should have held a hearing to determine if an adversarial relationship existed and conflict-free counsel was necessary.

We recognize that conflict-free counsel is not necessary if “the record conclusively refutes the defendant’s allegations.” Smith, 21 So. 3d at 74. Under those circumstances, any error committed by the trial court is harmless. Harris v. State, 45 So. 3d 4, 6 (Fla. 2d DCA 2010); Johnson v. State, 22 So. 3d 840, 844-45 (Fla. 1st DCA 2009) (finding harmless error in the trial court’s failure to hold a hearing where the defendant’s claim was refuted by plea colloquy and plea agreement). Our record does not allow us to reach that conclusion. Mr. Burns alleges that his plea agreement was not knowing or voluntary because he was misadvised by counsel. Our record, however, does not include the plea colloquy. Accordingly, we must reverse the judgment and sentence upon revocation of Mr. Burns’ probation and remand with directions to conduct a Sheppard hearing.

Reversed and remanded with instructions.

WHATLEY and WALLACE, JJ., Concur.

——–

^1. A defendant is not required to affirmatively seek the discharge of his counsel to bring to the trial court’s attention a clear adversarial relationship. Sheppard, 17 So. 3d at 286.

Courtesy of David Edelstein

Bookmark It

Hide Sites

STATE OF FLORIDA, Appellant,
v.
Y.Q.R., Appellee.

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

Appeal from the Circuit Court for Pinellas County; Jack Day, Judge.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellee.

ALTENBERND, Judge.

The State appeals from an order granting Y.Q.R.’s motion to suppress, in which the trial court concluded that Y.Q.R. was arrested following an unlawful traffic stop. We conclude that the arresting officer lawfully stopped the car in which Y.Q.R. was riding after watching the car make an improper left turn, as defined under section

Page 2

316.151(1)(b), Florida Statutes (2008). Because the stop was lawful, the trial court erred in granting Y.Q.R.’s motion to suppress. We therefore reverse the order on appeal and remand for further proceedings.

In June 2009, Officer Jonathan Bailey, while on patrol, was traveling northbound in the center lane of South Missouri Avenue in Pinellas County. He came to a stop at a light at the intersection with Court Street. According to Officer Bailey, the northbound portion of South Missouri Avenue was made up of three lanes: a throughlane, a left-turn lane, and a right-turn-only lane. Although the light was green, the car in front of Officer Bailey was stopped in the through-lane. The driver of this car waited for all the vehicles in the left-turn lane to proceed through the intersection. The driver then activated his turn signal and made a left turn. Although this turn did not affect any other traffic, Officer Bailey concluded that the turn was unlawful. He stopped the vehicle and discovered marijuana and paraphernalia.

After the State filed a delinquency petition against Y.Q.R., he argued successfully to the trial court that the vehicle’s turn was lawful because it “was done in a safe manner and did not affect the flow of traffic.” This argument appears to have three sources: First, the failure to signal a turn can constitute a traffic offense under section 316.155 if the turn affects traffic. See State v. Riley, 638 So. 2d 507, 508 (Fla. 1994). Second, under section 316.1515, a U-turn can amount to a traffic offense if it interferes with traffic or cannot be made safely. See Bender v. State, 737 So. 2d 1181, 1181 (Fla. 1st DCA 1999). Third, where it impacts other traffic, a turn made from the wrong lane can constitute erratic driving so as to provide a basis for an investigatory stop. Cf. Nicholas v. State, 857 So. 2d 980, 981 (Fla. 4th DCA 2003).

Page 3

Here, Officer Bailey simply stopped the driver of this car for an improper left turn, an offense defined under section 316.151(1)(b). That section provides:

Left turn.–The driver of a vehicle intending to turn left at any intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and, after entering the intersection, the left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered…. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.

As a noncriminal traffic infraction, a violation of this section can provide a basis to perform a lawful traffic stop. See § 316.151(3); see also State v. Allen, 978 So. 2d 254, 255 (Fla. 2d DCA 2008).

Section 316.151(1)(b) requires a driver performing a left turn to make the turn from “the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle.” This section does not condition the lawfulness of a left turn on whether the turn impacts traffic. We reject Y.Q.R.’s argument that, under the last sentence of section 316.151(1)(b), a proper left turn is required only “[w]henever practicable.” This sentence more likely pertains to those situations in which it is not practicable for a vehicle to remain within the turn lane while completing the turn.

Here, it is undisputed that the driver of the car in which Y.Q.R. was riding began his turn from the center, through-lane of traffic, not the extreme left-hand lane. In doing so, the driver committed a traffic infraction. Officer Bailey observed the infraction—in fact, he videotaped it. The trial court therefore erred in concluding Officer Bailey did not have a lawful basis to stop the vehicle in which Y.Q.R. was traveling.

Page 4

Accordingly, we reverse the order granting Y.Q.R.’s motion to suppress and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

THEODORE CARL KELLY, Petitioner
v.
STATE OF FLORIDA, Respondent.

On Motion for Rehearing

Per Curiam.

We grant respondent’s motion for rehearing, withdraw our previously issued opinion and substitute the following in its place.

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.

Page 2

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

[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 hedid not receive instructions to file an appeal. We appointed a commissioner to resolve this disputed issue of fact. At the hearing, however, the petitioner’s attorney testified, and the commissioner found, that the attorney had no recollection of being directed to file an appeal.

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.

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.

Page 3

Theodore Carl Kelly, Avon Park, pro se.

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

Courtesy of David Edelstein

Bookmark It

Hide Sites

RICHARD A. MORSE, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

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

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Gregory P. Holder, Judge.

Richard A. Morse, Jr., pro se.

WHATLEY, Judge.

Richard A. Morse, Jr., filed a petition for writ of mandamus seeking to compel his former counsel, the Public Defender for the Thirteenth Judicial Circuit, to provide free-of-charge copies of the crime scene photos from his trial. We hold that the circuit court erred when it denied his petition.

“A party petitioning for a writ of mandamus must establish a clear legal right to performance of the act requested, an indisputable legal duty, and no adequate remedy at law.” Radford v. Brock, 914 So. 2d 1066, 1067 (Fla. 2d DCA 2005)(citing

Page 2

Smith v. State, 696 So. 2d 814, 815 (Fla. 2d DCA 1997)). Morse stated a facially sufficient claim establishing entitlement to free copies of the photos from his courtappointed counsel. See id; Potts v. State, 869 So. 2d 1223, 1225 (Fla. 2d DCA 2004) (holding that “transcripts that were prepared at public expense on behalf of an indigent defendant must be provided to the defendant without charge for copying”).

The circuit court held that Morse was not entitled to relief because his public defender inspected and copied the photographs during the discovery process. And since his attorney allowed him to see the photos, the court reasoned that Morse was not entitled to any additional rights outside of the discovery process. However, the fact that the State provided the photos to defense counsel, and counsel copied them, does not limit Morse’s entitlement to documents in his appointed counsel’s file. See Smith v. State, 889 So. 2d 1009, 1010 (Fla. 3d DCA 2004) (“The petitioner is entitled to receive from his former counsel, at no cost to petitioner, any and all trial and hearing transcripts, copies of motions, and any state discovery presented to defense counsel.”) (emphasis added).

We therefore reverse and remand for the postconviction court to grant the petition and to order Morse’s counsel to provide copies of the crime scene photographs to Morse free-of-charge.¹

Page 3

Reversed and remanded for further proceedings.

NORTHCUTT and KELLY, JJ., concur.

——–

^1. Although the public defender’s office expressed concerns about the graphic nature of the photos, we agree with the postconviction court and note that it is for the Department of Corrections to determine whether Morse should be restricted from receiving the pictures because they are prohibited contraband. See Weeks v. Golden, 798 So. 2d 848 (1st DCA 2001) (noting that in reversing the denial of petition for writ of mandamus seeking production of photographs of parts of the victim’s body, “the Department of Corrections, in its supervisory capacity over inmates, may properly restrict appellant from receiving the photographs under the theory that they constitute prohibited contraband”).
——–

Courtesy of David Edelstein

Bookmark It

Hide Sites

GERALD PETION, Appellant.
v.
STATE OF FLORIDA, Appellee.

No. 4D06-3888

District Court Of Appeal
Of The State Of Florida
Fourth District

July Term 2010
December 22, 2010

ON REMAND FROMTHE SUPREME COURT OF FLORIDA

Per Curiam.

Gerald Petion sought review of our decision in Petion v. State, 4 So. 3d 83 (Fla. 4th DCA 2009), asserting conflict with J.D. v. State, 553 So. 2d 1317 (Fla. 3d DCA 1989). In Petion, we affirmed the defendant’s convictions for possession of cocaine with intent to sell and giving false information to a police officer. 4 So. 3d at 87. Although we agreed with the defendant that the trial court erred in permitting an officer to testify that it is common for street-level narcotics dealers to hand out contact information to potential buyers, such as their initials and phone numbers on slips of paper similar to those found in the defendant’s vehicle, we concluded that any error was harmless because the trial court was presumed to have disregarded this inadmissible evidence and nothing in the record suggested that the trial judge relied upon this evidence. Id.

The Florida Supreme Court quashed our decision, holding that the presumption that the trial judge disregarded inadmissible evidence in a bench trial can be rebutted by the judge’s express and specific finding of admissibility on the record.Petion v. State, 35 Fla. L. Weekly S597, S601 (Fla. Oct. 21, 2010). The Court further held that “[w]hen improper evidence is admitted over objection in this context, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume the trial court disregarded evidence that

Page 2

was specifically admitted as proper.” Id. The court remanded the case to us for further proceedings consistent with its opinion.

A review of the record shows that the trial court overruled the defendant’s objection to the officer’s testimony concerning the slips of paper, “[b]ased on his training and experience.” The court’s comments and express ruling on the objection rebut the presumption that it disregarded this improper evidence in reaching its decision. Further, the court made no express statement that this improper evidence did not contribute to its final determination. Accordingly, we reverse and remand this case to the trial court for a new trial.

Reversed and Remanded For New Trial.

Stevenson, Taylor and May, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 06-2676 CF10A.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

Courtesy of David Edelstein

Bookmark It

Hide Sites