Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL
	FIRST DISTRICT, STATE OF FLORIDA
MICHAEL K. EDWARDS,	NOT FINAL UNTIL TIME EXPIRES TO
	FILE MOTION FOR REHEARING AND
Appellant,	DISPOSITION THEREOF IF FILED
v.	CASE NO. 1D10-5748
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed January 28, 2011.

An appeal from the Circuit Court for Duval County.

Adrian G. Soud, Judge.

Michael K. Edwards, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant seeks review of the trial court’s order denying his motion to

mitigate his sentence pursuant to Florida Rule of Criminal Procedure 3.800(c).

This is not an appealable order. See, e.g., Mitchell v. State, 719 So. 2d 1258 (Fla. 1st DCA 1998). The fact that the order included the statement that “[t]he

Defendant shall have thirty (30) days from the date this Order is filed to take an appeal by filing a Notice of Appeal with the Clerk of Court” does not transform the order into an appealable order. See Falco v. State, 44 So. 2d 198 (Fla. 4th DCA 2010). This boilerplate language is required in orders on other types of postconviction motions, but it should not be included in orders on rule 3.800(c) motions. See Howard v. State, 914 So. 2d 455, 456 (Fla. 4th DCA 2005); see also Barrington v. State, 35 Fla. L. Weekly D2348 (Fla. 1st DCA Oct. 25, 2010) (Wetherell, J., concurring) (noting that the “inclusion of such language serves no purpose except to foster unnecessary appeals” and that “there is certainly no reason to suggest to an inmate that he or she has appellate rights in an order that is clearly not appealable”). Accordingly, we dismiss this appeal and we also take this opportunity to encourage the trial courts of this district to excise language concerning appellate rights from their orders on rule 3.800(c) motions.

DISMISSED.

DAVIS, HAWKES and WETHERELL, JJ., CONCUR.

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL
	FIRST DISTRICT, STATE OF FLORIDA
ERNEST ELVERT LYONS,	NOT FINAL UNTIL TIME EXPIRES TO
	FILE MOTION FOR REHEARING AND
Appellant,	DISPOSITION THEREOF IF FILED
v.	CASE NO. 1D10-3548
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed January 28, 2011.

An appeal from the Circuit Court for Escambia County.

Frank L. Bell, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Appellee.

PER CURIAM.

Appellant pled no contest to driving while his license was canceled,

suspended, or revoked (DWLSR)—third conviction. He had no agreement with or

offer from the State on a sentence. He normally would have faced a maximum sentence of five years in prison for the third-degree felony. See §§ 322.34(2)(c), 775.082(3)(d), Fla. Stat. (2009). But because his scoresheet reflected only 10.7 sentence points, the presumptive maximum sentence pursuant to section 775.082(10), Florida Statutes, was a nonstate prison sanction. As permitted by the statute, the trial court found that Appellant could pose a danger to the public if a nonstate prison sanction were imposed, and sentenced Appellant to 30 months in prison with 32 days’ credit for time served. Appellant argues on appeal that the court’s written findings are insufficient to satisfy section 775.082(10), and that the court improperly used his prior DWLSR convictions to justify the prison sentence.

“A sentencing error may not be raised on appeal unless the alleged error has been first brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).” Fla. R. App. P. 9.140(e). See Fla. R. Crim. P. 3.800(b) (permitting a motion to correct anysentencing error to be filed before or pending appeal). Appellant concedes he did not argue at sentencing that the trial court could not consider his prior record in determining whether a nonstate prison sanction is appropriate. And the record does not reflect that Appellant raised either the trial court’s reliance on his prior record or the adequacy of the court’s written findings in a rule 3.800(b) motion. Thus Appellant preserved neither issue for appeal.

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Accordingly, we affirm the sentence.

AFFIRMED.

PADOVANO, ROBERTS, and MARSTILLER, JJ., CONCUR.

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL
	FIRST DISTRICT, STATE OF FLORIDA
TERRANCE A. LAKE,	NOT FINAL UNTIL TIME EXPIRES TO
	FILE MOTION FOR REHEARING AND
Appellant,	DISPOSITION THEREOF IF FILED
v.	CASE NO. 1D10-2970
STATE OF FLORIDA,
Appellee.
_____________________________/

Opinion filed January 28, 2011.

An appeal from the Circuit Court for Duval County.

Hugh A. Carithers, Judge.

Terrance A. Lake, pro se, Appellant.

Pamela Jo Bondi, Attorney General and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant seeks review of the trial court’s order denying his motion for post-

conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We

dismiss the appeal for the reasons that follow.

Appellant raised eight claims in his motion.1 The state agreed that three of the claims required an evidentiary hearing, but argued that the other claims were legally insufficient and/or refuted by the record. The trial court appointed counsel

for Appellant and the matter proceeded to an evidentiary hearing on the three

claims that the state agreed required an evidentiary hearing.2

After the hearing, the trial court entered an order denying the motion and

informing Appellant of his right to appeal. The order specifically addressed only those claims presented at the evidentiary hearing, and as discussed below, there is

1 Although the motion and the attached “Memorandum of Law in Support” (hereafter “the attachment”) incorporated by reference into the motion listed nine separate “grounds” and “issues,” there were actually only eight claims as a result of different numbering of the claims by Appellant in the motion and the attachment. See note 2.

2 There was confusion at the outset of the hearing concerning the particular claims that were going to be presented. The confusion resulted from different numbering of the claims in the motion (which listed “grounds” 1 through 4) and the attachment (which expanded on grounds 1 through 4, but listed them as “issues” 2 through 5 and also included four additional claims listed as “issues” 6 through 9). The claims ultimately presented at the evidentiary hearing and addressed in the order on appeal were ground 2 in the motion, which was issue 3 in the attachment (alleging counsel’s failure to conduct a reasonable investigation and impeach the state’s key witness); ground 3 in the motion, which was issue 4 in the attachment (alleging counsel’s failure to conduct an adequate investigation of the charge and possible defenses); and issue 7 in the attachment (alleging counsel’s failure to locate a key witness). The claims that were not presented at the evidentiary hearing and have not been ruled on by the trial court are ground 1 in the motion, which is issue 2 in the attachment (alleging that counsel failed to conduct a reasonable voir dire); ground 4 in the motion, which is issue 5 in the attachment (alleging a violation of Appellant’s right to be present at all stages of the proceeding); issue 6 in the attachment (alleging that counsel made an insufficient motion for judgment of acquittal); and issues 8 and 9 in the attachment (both asserting cumulative error).

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no indication in the record that the trial court summarily denied the remaining

claims.3 There is also no indication in the record that Appellant abandoned the

claims that were not presented at the evidentiary hearing, and to the contrary, his

counsel specifically asked the trial court at the hearing to rule on all of the claims

raised in the motion.

It is well-settled that an order disposing of some, but not all of the claims in

a motion for postconviction relief is not an appealable final order. See Elder v.

State, 673 So. 2d 970, 971 (Fla. 1st DCA 1996) (citing McCoy v. State, 487 So. 2d

1095 (Fla. 1st DCA 1986), and White v. State, 450 So. 2d 556 (Fla. 2d DCA

1984)). In response to our order directing Appellant to show cause why this case

should not be dismissed on this basis, Appellant conceded that the trial court’s

order was not an appealable final order, but he also asked us to direct the trial court

to allow him to correct any pleading deficiencies in his motion in accordance with

Spera.4 In reply, the state argued that Appellant should not be permitted to amend

his post-conviction motion because he had an evidentiary hearing on his claims.

The state also argued that the trial court’s order is an appealable final order

3 Although the trial court stated at one point during the hearing that it did not intend to even consider the claims in the motion that were not presented at the evidentiary hearing, this ruling (to the extent that was what the statement was intended to be) was not reduced to writing and, thus, was not a proper order denying the remaining claims. See Prado-Gonzalez v. State, 468 So. 2d 991 (Fla. 4th DCA 1984) (order denying motion for postconviction relief must be in writing).

4 Spera v. State, 971 So. 2d 754 (Fla. 2007). 3

because it “tacitly denied all claims for postconviction relief through its strong language that trial counsel did a commendable job, etc.” (emphasis in original).

We decline to construe the trial court’s order in the manner suggested by the state. First, the order only discusses the claims presented at the evidentiary hearing. Second, the “strong language” in the order referred to by the state appears to relate only to the claims presented at the evidentiary hearing because it indicates that no evidence was presented “at hearing . . . remotely supporting [Appellant’s] contention that he received ineffective assistance of counsel at trial” (emphasis added), and the only claims considered at the evidentiary hearing were the three that the state agreed required an evidentiary hearing. Third, the order does not include any record excerpts or discussion of the legal insufficiency of the other claims as would be expected if the order were also intended to summarily deny the claims in the motion that were not presented at the evidentiary hearing.

Accordingly, we construe the order on appeal to dispose of only the three claims presented at the evidentiary hearing, and because the trial court’s judicial labor on Appellant’s motion is not yet complete, we dismiss this appeal. In doing so, we express no view on the sufficiency or merits of the remaining claims or whether the trial court should allow Appellant to amend the claims that were not presented at the evidentiary hearing. Also, as in Elder, the dismissal of this appeal

4

is without prejudice to an appeal of the final order disposing of all the claims raised in Appellant’s motion.

DISMISSED.

BENTON, C.J., WETHERELL and ROWE, JJ., CONCUR.

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL
	FIRST DISTRICT, STATE OF FLORIDA
HUY N. HA,	NOT FINAL UNTIL TIME EXPIRES TO
	FILE MOTION FOR REHEARING AND
Appellant,	DISPOSITION THEREOF IF FILED
v.	CASE NO. 1D09-6597
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed January 28, 2011.

An appeal from the Circuit Court for Santa Rosa County.

R.V. Swanson, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

ROBERTS, J.

This appeal arises from an order denying the appellant’s motion to withdraw

his plea after sentencing. The appellant argues that his plea was not voluntary. We

agree and reverse.

FACTS

The appellant was charged by information with attempted first-degree premeditated murder with a firearm. On September 18, 2009, during a pre-trial

hearing, the trial judge initiated the following discussion:

THE COURT: If you go to trial and you’re convicted, it’s possible that you will spend the rest of your natural life in Department of Corrections state prison. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: It’s possible that you will not ever be paroled or pardoned, and it’s possible you will stay in prison for the rest of your life. Do you understand?

THE DEFENDANT: Yes, sir.

* * *

THE COURT: So if you’re sentenced to life, life means life. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: Now, you have the option today of entering a plea of no contest or guilty, or announcing ready for trial; because your attorneys have indicated that they are fully prepared and ready to proceed. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: Are you at this time electing not to enter a plea of no contest or guilty but to go to trial?

THE DEFENDANT: Yes. I go to trial.

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THE COURT: And you understand you may be sentenced to

life?

THE DEFENDANT: Yes, sir.

Later in the same hearing, the trial judge initiated the following discussion:

THE COURT: You’re satisfied that you’ve had a full, fair, and free opportunity to discuss these issues with your client, that his decision to go to trial is knowing, intelligent, and a conscious decision on his part to exercise his right to a trial by jury?

[DEFENSE COUNSEL]: Yes, Your Honor.

THE COURT: And I’ve reviewed the Court file.

[DEFENSE COUNSEL]: Uh-huh.

THE COURT: And it’s clear to the Court that there is — I’m not going to make a decision about whether it’s beyond exclusion of every reasonable doubt, but there is compelling evidence that the State is going to present.

And again, juries do what juries do. And I don’t know what they’re going to do clearly, and I’m sure you have some theory of defense; but based upon the compelling evidence before the Court the Court could foresee a strong likelihood that this jury could come back with a conviction. You’ve had the opportunity to explain that to him?

[DEFENSE COUNSEL]: We have, Your Honor. And if you’d like to take the opportunity to have that translated to him, we’ve only — have spoken to him in English, and he seems to understand; but if you want to take the opportunity to have that explained to him in Vietnamese?

THE COURT: With the interpreter — I’ve reviewed this court file — tell him, interpret.

(Interpreter spoke in a language other than English)

THE DEFENDANT: Yes.

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THE COURT: I don’t know what a jury will do. (Interpreter spoke in a language other than English)

THE DEFENDANT: (Nods head.)

THE COURT: But based upon what has been available to me

–

(Interpreter spoke in a language other than English)

THE DEFENDANT: (Nods head.)

THE COURT: The State’s evidence is compelling. (Interpreter spoke in a language other than English)

THE COURT: And I would think that there is a — (Interpreter spoke in a language other than English)

THE COURT: – strong potential for a finding of guilt by a

jury.

(Interpreter spoke in a language other than English)

THE COURT: And if he elects to go to trial and is convicted by a jury –

(Interpreter spoke in a language other than English)

THE DEFENDANT: (Nods head.)

THE COURT: I want to ensure that he understands — (Interpreter spoke in a language other than English)

THE DEFENDANT: (Nods head[.]) [Y]es.

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THE COURT: – that he may well be sentenced to life in prison.

(Interpreter spoke in a language other than English)

THE DEFENDANT: (Nods head[.]) [Y]es.

THE COURT: He understands?

THE DEFENDANT: (Nods head.)

INTERPRETER: Yes. He understands.

THE DEFENDANT: Yes.

THE COURT: And he’s not willing or desirous of making a no contest or guilty plea?

(Interpreter spoke in a language other than English)

INTERPRETER: I tell him that. He want to say something to you. He can say right now.

* * *

THE DEFENDANT: No, sir, got no questions.

* * *

THE COURT: Okay. I find that the defendant understands the ramifications of a trial, that he has elected to exercise his right to a fair trial in front of a jury of his peers, and he understands that the potential for conviction is strong, and that if convicted by a jury, that there is likelihood that he could be sentenced to life in prison.

* * *

[DEFENSE COUNSEL]: We’ve talked — we’ve advised him though that [the prosecutor] was going to consider the 25-year offer. A 25-year offer never has been officially made. So I guess my

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question is, is it being made right now, that if he entered a plea, he could get 25 years?

THE COURT: Well, he can plea straight up to the Court. I don’t know whether [the prosecutor] has made that offer or not.

THE PROSECUTOR: . . . . For the record I have not.

THE COURT: He understands any plea straight up to the Court –

[THE PROSECUTOR]: No, sir.

THE COURT: – I’m not making any assurances of what I would do. I would order a P.S.I.

[THE PROSECUTOR]: No such offer has been conveyed by the Defense to the State . . . .

* * *

THE COURT: – but my understanding is he has elected not to enter a plea for a possibility of 25 years?

[DEFENSE COUNSEL]: I’m sorry, sir?

THE COURT: He has elected not –

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: – to enter a plea for a possibility 25 years.

[DEFENSE COUNSEL]: Do you understand?

THE DEFENDANT: Yes.

THE COURT: Is that correct?

[DEFENSE COUNSEL]: That’s correct, Your Honor. 6

On September 21, 2009, just before jury selection, the trial judge initiated

the following discussion:

THE COURT: All right. [The defendant], you’ve rejected all plea offers; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: You’ve rejected the opportunity to plea. You want a trial?

THE DEFENDANT: Yes, sir.

THE COURT: Okay.

[THE PROSECUTOR]: Judge, so the record is clear there is no plea offer.

THE COURT: Well, there is no plea offer. You rejected all opportunities to plea, and you understand if you’re convicted at trial, it’s a possibility of a life sentence. It’s a [life] felony.

THE DEFENDANT: Yes, sir.

* * *

THE COURT: . . . . [The defendant], there was an opportunity for you to plea straight up to the Court and the Court would consider the possibility of a 25-year mandatory minimum, and you’re rejecting that opportunity. Is that correct?

THE DEFENDANT: Yes, sir.

On September 23, 2009, just before trial was to begin, defense counsel

initiated the following discussion:

[DEFENSE COUNSEL]: Your Honor, in speaking [with the defendant] this morning he indicated that it may be possible to resolve

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the case. We would be willing to take a twenty-five year minimum sentence.

THE COURT: I picked a jury. There are no — I would order

a PSI.

[DEFENSE COUNSEL]: And set it for sentencing?

THE COURT: Set it for sentencing. Once I pick the jury, there’s no –.

[DEFENSE COUNSEL]: I understand, Your Honor. If we can have a moment to relay that to him and see if he wishes to proceed.

THE COURT: Okay.

* * *

[DEFENSE COUNSEL]: We’re going to move forward, Your Honor.

THE COURT: What?

[DEFENSE COUNSEL]: We’re going to move forward.

THE COURT: Do you want me to talk to your client?

[DEFENSE COUNSEL]: You can, Your Honor.

THE COURT: All right. Mr. Ha.

THE DEFENDANT: Yes, sir.

THE COURT: My understanding is that this morning you had asked your attorney if you could enter a no contest or guilty plea in exchange for a commitment from the court that it would impose a twenty-five years sentence; is that correct?

THE DEFENDANT: Yes.

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THE COURT: And I explained to them that once we picked this jury, as I explained to you before, that there will be no commitment from the court on a sentence once the jury was picked. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: Now, if you chose to enter a no contest or guilty plea, I would order a presentence investigation, and the range of punishment that could potentially be imposed would be within the discretion of the court, not less than twenty-five years, potentially up to a life sentence. Do you understand?

THE DEFENDANT: Yes.

THE COURT: Now, I did not say I would not impose a twenty-five year sentence. I just said I would not commit to it. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: Nonetheless, after your discussion with your attorney you’re electing to proceed to trial; is that correct?

THE DEFENDANT: Yes.

THE COURT: You do not want to plead no contest, and you do not want to plead guilty; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: And you understand if you’re convicted, it may be a life sentence?

THE DEFENDANT: Yes.

* * *

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THE DEFENDANT: Right now it’s no plea offer on the

table?

THE COURT: I told you before, once we pick that jury there will be no plea offer. It’s possible I could impose a twenty-five year sentence. If you pled no contest or guilty, it’s possible I could do something greater than that.

I am not making any assurances to you. I would order a presentence investigation and I would evaluate all the circumstances surrounding everything, and I would impose an appropriate sentence.

I would, of course, consider the fact that you did enter a plea. That would be a consideration, but I would also consider all other factors, and I’m not making any commitments.

THE DEFENDANT: I would like to plea out to you today.

The defendant indicated that he wished to plead no contest to the charge of attempted first-degree premeditated murder with a firearm. A plea colloquy followed. Afterwards, the trial judge accepted the plea, finding that it was freely and voluntarily entered.

On December 3, 2009, a sentencing hearing was held. The trial judge adjudicated the defendant guilty and sentenced him to life in prison with a mandatory minimum of 25 years. The trial judge did not provide any explanation

for the increased sentence.

On December 23, 2009, the appellant filed a motion to withdraw his plea.

On January 14, 2009, during a hearing on the motion, defense counsel made the

following statements:

. . . . There was one other matter that, you know, we could address now, too, because it may be a year or two before it ever gets

10

looked at again, I don’t know, but there was also a colloquy that was held.

It wasn’t a colloquy. I believe it was held just between court and counsel.

* * *

It was also colloquy — I don’t think there’s a record of it. It was on the 14th. It was just between the attorneys and the Court where we — the court inquired if [the State] would offer him 25 years, and then we went out to the jail to see if he would take the 25 years — Mr. Ha would take the 25 years and he rejected the 25 years, and so that would — that was not on the record.

I am trying to make sure we got all the — everything we need to do to get on the record today so the court can make its ruling one way or the other.

After arguments, the trial judge denied the defendant’s motion to withdraw his

plea.

ANALYSIS

Although judicial participation in the plea bargaining process is not

prohibited, it must be limited “to minimize the potential coercive effect on the

defendant, to retain the function of the judge as a neutral arbiter, and to preserve

the public perception of the judge as an impartial dispenser of justice.” State v. Warner, 762 So. 2d 507, 513 (Fla. 2000). Some limitations placed on judicial participation in the plea bargaining process include, but are not limited to, the following. First, the trial judge may participate in plea discussions upon the request of a party but must not initiate such discussions. Id. at 514. Second, based

on a preliminary evaluation of the information available at the time, the trial judge

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may state on the record the sentence which appears to be appropriate for the charged offense(s). However, if the trial judge later determines that the sentence to be imposed must exceed the preliminary evaluation, then the defendant who has pleaded guilty or no contest has an absolute right to withdraw the plea. Third, to avoid the potential for coercion, the trial judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the defendant exercising his right to trial. Fourth, all plea discussions involving the trial judge must be made on the record. Id.

In the instant case, the record clearly demonstrates that those limitations were exceeded by the trial judge, leading to the defendant’s involuntary plea. First, the trial judge improperly initiated the plea discussions with the defendant. Second, despite the fact that the trial judge later determined that a life sentence, rather than a 25-year sentence, had to be imposed, the trial judge did not allow the defendant to withdraw his plea. Third, the trial judge both stated and implied that the defendant would have been sentenced to 25 years in prison, rather than life, if he had pled before jury selection. Fourth, based on defense counsel’s statements at the motion hearing, it appears that not all plea discussions involving the trial judge were made on the record.

Accordingly, we vacate the order denying the defendant’s motion to withdraw his plea and remand with instructions to allow the withdrawal.

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REVERSED and REMANDED.

PADOVANO, ROBERTS, and MARSTILLER, JJ., CONCUR.

Courtesy of David Edelstein

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL
	FIRST DISTRICT, STATE OF FLORIDA
BRIAN R. MINNICH,	NOT FINAL UNTIL TIME EXPIRES TO
	FILE MOTION FOR REHEARING AND
Petitioner,	DISPOSITION THEREOF IF FILED
v.	CASE NO. 1D09-1142
STATE OF FLORIDA,
Respondent.
___________________________/
Opinion filed January 28, 2011.

Petition for Writ of Habeas Corpus — Original Jurisdiction.

Crystal McBee Frusciante, Jupiter, for Petitioner.

Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

This petition for writ of habeas corpus challenges a 2006 conviction and

sentence. Because of the unique procedural posture of this case, we grant the petition. Petitioner was charged with aggravated assault with a deadly weapon and attempted first-degree murder. After a jury trial, petitioner was convicted of the aggravated assault count as charged and attempted second-degree murder as a lesser included offense. Petitioner’s appeal to this court was affirmed. See Minnich v. State, 993 So. 2d 520 (Fla. 1st DCA 2008) (table). Petitioner timely filed a petition for certiorari review in the United States Supreme Court, but that petition was denied. See Minnich v. Florida, 129 S. Ct. 2162 (2009). Petitioner’s conviction was not final until the U.S. Supreme Court denied his petition on May 11, 2009. See Bundy v. State, 538 So. 2d 445, 447 (Fla. 1989) (stating that the defendant’s “conviction and sentence became final when the United States Supreme Court denied his petition for writ of

certiorari . . . .”).

While the petition for writ of certiorari was pending in the U.S. Supreme Court, this court issued its opinion in Montgomery v. State, 34 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009). In Montgomery, the defendant was charged with first-degree murder, and the trial court instructed the jury on second-degree murder and manslaughter by act as lesser-included offenses. Although the instruction the trial court gave was the standard instruction at the time, we found it to be erroneous because it stated that an element of manslaughter by act was that the defendant “intentionally

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caused [the victim’s] death.” We viewed this language as requiring the jury to find that the defendant intended to kill the victim in order to convict him of manslaughter by act. We held that the addition of the intent-to-kill element in the jury instruction for manslaughter by act was fundamental error because the jury’s finding that the defendant did not intend to kill the victim, as evidenced by the second-degree murder verdict, precluded it from returning a verdict for manslaughter under the instructions given. The Florida Supreme Court has approved this court’s decision in State v. Montgomery, 39 So. 3d 252 (Fla. 2010).

This court has applied the holding in Montgomery to find that a trial court commits fundamental error by giving the jury instruction with the intent-to-kill element for attempted manslaughter by act where the defendant is found guilty of the lesser included offense of attempted second-degree murder. See Rushing v. State, 2010 WL 2471903 (Fla. 1st DCA 2010); Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009). Petitioner asserts that in his case, the trial court gave the same jury instruction which was found to be fundamental error in Montgomery. This court has held that in cases which were pending when Montgomery was decided, appellate counsel was ineffective for failing to ask for supplemental briefing on the jury instruction issue. See, e.g.,Asberry v. State, 32 So. 3d 718 (Fla. 1st DCA 2010). Here, because petitioner’s conviction was not yet final when this court issued the opinion in Montgomery, the

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holding in that case applied to petitioner’s case. Under such circumstances, a motion to recall mandate in his direct appeal would have been appropriate, however, petitioner was unable to file such a motion because this court was no longer in the same term in which the mandate was issued. Williams v. State, 947 So. 2d 694 (Fla. 4th DCA 2007). The writ of habeas corpus can be used to provide relief after the expiration of term of court in very limited circumstances. See Raulerson v. State, 724 So. 2d 641 (Fla. 4th DCA 1999). Accordingly, we find that petitioner is entitled to relief by petition for writ of habeas corpus.

We note that the Fourth District Court has found that fundamental error does not occur when the intent-to-kill element is included in the jury instruction for attempted manslaughter. See Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010). Both Williams and this court’s decision in Rushing are pending in the Florida Supreme Court. Accordingly, we certify conflict with Williams, as well as the following questions of great public importance:

(1)Does the standard jury instruction on attempted manslaughter constitute fundamental error?

(2)Is attempted manslaughter a viable offense in light of State v. Montgomery, 39 So. 3d 252 (Fla. 2010)?

We grant the petition, reverse the conviction and remand for a new trial.

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KAHN and WETHERELL, JJ., CONCUR; BENTON, C.J., dissents with opinion.

BENTON, C.J., DISSENTING.

I would transfer the habeas petition to the circuit court.

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

CARSTARVOS WOODS
Appellant,
v.	Case No. 5D10-3672
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed January 28, 2011.
3.850 Appeal from the Circuit Court
for Hernando County,
Jack Springstead, Judge.
Carstarvos Woods, Ft. Lauderdale, pro se.
No Appearance for Appellee.

PER CURIAM.

ON ORDER TO SHOW CAUSE

This Court issued a Spencer1 show cause order directing the Appellant, Carstarvos Woods, to demonstrate why he should not be barred from filing further pro se challenges to his convictions and sentences in this case. We did so after affirming the denial of Woods’ successive pro se motion for postconviction relief—his sixth such motion since he was convicted eighteen years ago and his second since he was barred

1 State v. Spencer, 751 So. 2d 47 (Fla. 1999).

from further pro se filings by the trial court. We find Woods’ response to our show cause order to be unpersuasive and conclude he is abusing the judicial process.

Therefore, we now prohibit Woods from filing with this Court any more pro se pleadings concerning Hernando County, Fifth Judicial Circuit Court, case numbers 91-

001-CF and 91-830-CF. The Clerk of this Court is directed not to accept any further pro se filings from Woods concerning these cases. Any additional pleadings or motions in this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing with The Florida Bar. See Johnson v. State, 652 So. 2d 980, 980 (Fla.

5th DCA 1995) (prohibiting petitioner from filing further pro se pleadings after thirteen challenges to conviction and sentence); Isley v. State, 652 So. 2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2010); Simpkins v. State, 909 So. 2d 427,

428 (Fla. 5th DCA 2005).

GRIFFIN, EVANDER and JACOBUS, JJ., concur.

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

MICHAEL E. OLIVE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-2102

________________________________/

Opinion filed January 28, 2011

3.800 Appeal from the Circuit

Court for Brevard County, John M. Harris, Judge.

Michael E. Olive, Florida City, pro se.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Carmen F. Corrente,

Assistant Attorney General, Daytona

Beach, for Appellee.

COHEN, J.

Appellant challenges the trial court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and its order denying his motion for rehearing. The trial court correctly denied relief on Appellant’s argument that his sentence exceeded the statutory maximum. See Monroe v. State, 36 So. 3d 930

(Fla. 4th DCA 2010) (holding sentence of thirty-five years in prison with ten years’ probation for second-degree murder is within the statutory maximum under 1997 statutes). Accordingly, we affirm the trial court’s ruling on this ground.

The trial court erred, however, by summarily denying Appellant’s claim that his sentence exceeded the sentencing guidelines in effect prior to the Criminal Punishment

Code’s effective date. Taking judicial notice of this court’s records of Appellant’s direct appeal, we conclude that Appellant has stated a facially sufficient claim for relief.

Therefore, the trial court was required to attach supporting documents to its order that summarily denied his claim for relief. See Friss v. State, 881 So. 2d 38 (Fla. 5th DCA

2004).

Accordingly, we reverse and remand to the trial court to attach additional portions of the record, including the sentencing guidelines scoresheet, which conclusively refute Appellant’s claim, or to resentence Appellant in accordance with the standards set forth inBrooks v. State, 969 So. 2d 238 (Fla. 2007).

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

MONACO, C.J., and SAWAYA, J., concur.

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

STATE OF FLORIDA,

Appellant,

v.

DERRICK M. ODOM,

Appellee.
Case No. 5D09-3997

________________________________/

Opinion filed January 28, 2011

Appeal from the Circuit Court for Lake County,

Richard S. Singeltary, Judge.

Pamela Bondi, Attorney General,

Tallahassee, and Rebecca Rock

McGuigan, Assistant Attorney General,

Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and

Anne Moorman Reeves, Assistant

Public Defender, Daytona Beach, for

Appellee.

EVANDER, J.

The State appeals from an order granting Derrick Odom’s post-verdict motion for

judgment of acquittal on the charge of trafficking in methamphetamine. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(E)(State may appeal order granting motion for judgment of acquittal after jury verdict). Because the

State presented sufficient evidence to support the jury verdict, we reverse.

Odom was charged with, inter alia, manufacturing of methamphetamine,1possession of drug paraphernalia,2 and trafficking in methamphetamine.3 Three co- defendants were also charged with manufacturing of methamphetamine and trafficking in methamphetamine. However, they entered into plea agreements with the State and subsequently testified at Odom’s trial.

The evidence, taken in the light most favorable to the State, reflects that at approximately 5:30 p.m. on September 12, 2008, detectives began conducting surveillance of Odom’s residence, a single-wide trailer. Two of the co-defendants were observed entering the trailer at approximately 10:00 p.m. About an hour later, Odom arrived in a pick-up truck and entered the residence. Odom was later observed carrying large boards out to the truck, backing the truck over the boards, and then re-entering the trailer.

Around midnight, a marked deputy’s vehicle was brought to the scene because the detectives decided to conduct a “knock and talk.” The smell of acetone (a chemical used in the manufacture of methamphetamine) could be detected seven to ten feet from the trailer. When an officer knocked on the front door, Odom exited the back door. After being stopped, Odom advised a deputy that three children were in the residence. Deputies went into the residence and observed the three co-defendants — one of whom was attempting to pour a liquid from a Mason jar down the kitchen sink. The deputies directed the co-defendant to cease from any effort to dispose the liquid, and then

1 §§ 893.13(1)(a) and 893.03(2)(c)4., Fla. Stat. (2008).

2 §§ 893.145 and 893.147, Fla. Stat. (2008).

3 §§ 893.135(1)(f) and 893.03(2)(c), Fla. Stat. (2008).

2

located the three children. All of the individuals were then removed from the trailer so they could be decontaminated by a hazardous response unit. After obtaining a search warrant, the detectives re-entered the trailer to conduct a search.

Inside the trailer, the detectives found what was described as an “active meth lab.” The substance which a co-defendant had attempted to pour down the sink was identified as pseudoephedrine. Fifty-four and one-tenth (54.1) grams of the pseudoephedrine was recovered. The detectives also found numerous chemicals, products, and equipment commonly used for the manufacture of methamphetamine.

In the pick-up truck that had been driven by Odom, a two-liter Mountain Dew bottle was found beneath a tool box. The bottle contained 434.7 grams of a liquid containing methamphetamine. The large boards that detectives had witnessed Odom carry outside and back-over with the truck had newspaper present between them.

Inside the newspaper were iodine crystals — a necessary ingredient for the production of methamphetamine. The truck was found to be registered to Odom’s stepmother.

At trial, two of the co-defendants testified that on the day in question, Odom was actively engaged in the manufacturing of methamphetamine. They detailed Odom’s specific activities in furthering the manufacturing process. The final methamphetamine product had not been generated prior to law enforcement intervention.

At the conclusion of the State’s case, Odom moved for a judgment of acquittal on all counts. On the trafficking count, Odom’s argument was that the State failed to prove that he had knowledge of the presence of the pseudoephedrine found in the house or the methamphetamine found in the truck, or that he was ever in possession of same. The trial court reserved ruling on this count.

3

The jury ultimately returned a verdict, finding Odom guilty of 1) the lesser included offense of attempted manufacture of methamphetamine; 2) possession of drug paraphernalia; and 3) trafficking as charged with a special finding that the quantity involved was twenty-eight (28) grams or more but less than two hundred (200) grams.

Odom subsequently renewed his motion for judgment of acquittal as to the trafficking count. He argued that the jury verdict must have been based on the methamphetamine found in Odom’s stepmother’s truck and the State had not produced sufficient evidence to establish that Odom had actual or constructive knowledge of the illegal drugs found in the truck. The State argued that the trafficking amount found by the jury (between 28 and 200 grams) was consistent with the 54.1 grams of pseudoephedrine found in Odom’s residence and which a co-defendant was attempting to pour in the sink when deputies entered the trailer. The State further correctly observed that while the manufacturing count referenced methamphetamine only, the trafficking count brought against Odom alleged that he had unlawfully and knowingly manufactured or possessed methamphetamine and/or pseudoephedrine. The trial court granted Odom’s motion without explanation.

A motion for judgment of acquittal challenges the legal sufficiency of the evidence.Bufford v. State, 844 So. 2d 812, 813 (Fla. 5th DCA 2002). The motion should be denied if the State presents competent evidence to establish each element of the offense. Id. In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the State that the fact-finder might fairly infer from the evidence. Id. The record is reviewed de novo to determine whether sufficient evidence supports the verdict. Id.

4

Here, the State produced sufficient evidence on the trafficking count to support the jury’s verdict. The second amended information filed against Odom alleged that he did “unlawfully and knowingly . . . manufacture . . . or have in his possession a controlled substance, to wit: Methamphetamine and/or Pseudoephedrine, or a mixture containing Methamphetamine or Pseudoephedrine . . .” Even assuming, without so holding, that the State’s evidence was insufficient to prove Odom manufactured or possessed the methamphetamine found in the pick-up truck, the evidence was sufficient as to the 54.1 grams of pseudoephedrine4 located in plain view in Odom’s residence.

First, the evidence was sufficient to establish that Odom had participated in the manufacturing of the pseudoephedrine. One co-defendant specifically testified that Odom had applied chemicals to Sudafed pills to extract the ephedrine, and another co- defendant testified that Odom had given instructions to further the manufacturing process.

Alternatively, the evidence was more than sufficient to permit the jury to determine that Odom had been in constructive possession of the pseudoephedrine. Constructive possession exists where a defendant does not have actual, physical possession of the controlled substance, but knows of its presence on or about the premises, and has the ability to exercise and maintain control over the contraband.

Harris v. State, 954 So. 2d 1260, 1262 (Fla. 5th DCA 2007). Possession of illegal drugs may be by joint constructive possession. Armbruster v. State, 453 So. 2d 833, 834 (Fla.

4 Ephedrine and pseudoephedrine are products commonly used in the illegal manufacture of methamphetamine.

5

4th DCA 1984). Thus, the State may prove joint possession by two or more defendants

without proving actual physical possession by any one defendant. Id. at 834-35.

If the possession is non-exclusive, knowledge of the presence of the contraband

and the ability to control it cannot be inferred, but must be established by independent

proof. J.A.C. v. State, 816 So. 2d 1228, 1229 (Fla. 5th DCA 2002). Proof of the

knowledge element may consist either of evidence establishing that the accused had

actual knowledge of the presence of the contraband, or of evidence of incriminating

statements and circumstances, other than the mere location of the substance, from

which a jury might lawfully infer knowledge by the accused of the presence of the

contraband on the premises. Ball v. State, 758 So. 2d 1239, 1241 (Fla. 5th DCA 2000).

Where a defendant does not have exclusive possession of the premises, proof of the

control element can still be met where the contraband is located in plain view in a

common area. Brown v. State, 428 So. 2d 250, 252 (Fla. 1983). The Brown case is particularly instructive. There, law enforcement officers found several pounds of marijuana and lesser quantities of hashish and PCP scattered, in plain view, throughout Brown’s residence. The issue raised on appeal by Brown was whether those facts created a prima facie case of constructive possession. The Florida Supreme Court affirmed Brown’s conviction, stating:

In the instant case the knowledge element is met because the contraband was in plain view in common areas throughout the house. The dominion and control element is met because Brown, as resident owner of his home, had control over the common areas. Therefore, the elements of knowledge and control have been satisfied, and, as the district court found, the facts presented at trial were sufficient to create a jury question as to constructive possession.

Brown, 428 So. 2d at 252 (footnote omitted).

6

Here, as in Brown, there was evidence that Odom was the occupant of the mobile home where the pseudoephedrine was seized, that the pseudoephedrine was in plain view and in a common area, and further, that Odom had been involved in its manufacture. It was error for the trial court to have granted Odom’s motion for judgment of acquittal.

REVERSED and REMANDED for reinstatement of the jury’s verdict and sentencing on that charge.

COHEN and JACOBUS, JJ., concur.

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT	JANUARY TERM 2011
LUIS ESTEBAN COLON,
Appellant,
v.	Case No. 5D09-3131
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed January 28, 2011
Appeal from the Circuit Court
for Orange County,
Bob Wattles, Judge.
James S. Purdy, Public Defender, and
Kevin R. Holtz, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee,
and Rebecca Rock McGuigan, Assistant Attorney
General, Daytona Beach, for Appellee.

GRIFFIN, J.

Luis Esteban Colon ["Colon"] appeals his convictions of two separate counts of

leaving the scene of an accident involving death and three separate counts of leaving

the scene of an accident involving injury, based on a claim of double jeopardy. Colon additionally contends that his sentence must be vacated because the trial court impermissibly considered his protestation of innocence in determining his sentence.

Colon was charged by information with two counts of vehicular homicide

enhanced to first-degree felonies for failure to render aid, two counts of leaving the

scene of an accident with death, and three counts of leaving the scene of an accident

with injuries. These charges were brought as a result of an automobile accident that

occurred on October 5, 2005.1

The jury found Colon guilty as charged, and the trial court adjudicated Colon

guilty of all seven counts. At sentencing, Colon testified on his own behalf. While Colon was testifying, the trial court asked him about his continued protestations that he was not driving the car. While announcing the statutory maximum sentences of thirty years

for the two vehicular homicide counts, to be served consecutively, the trial court said:

As to Count 1 and 2, based upon the totality of the circumstances, Mr. Colon’s continued denial of the fact that he is responsible for this accident, he is a danger to society, Mr. Hobson. Put him in an automobile and he is a guided missile. And there is just no excuse. I mean, he wasn’t under the influence of any drugs or alcohol that day. He was just under the influence of doing whatever the hell he wanted to do, irrespective of all those other people on the highway.

Colon was also sentenced to concurrent five year terms for the three leaving the scene

of an accident with injury counts. Finally, Colon was sentenced to ten-year terms for the two counts of leaving the scene of an accident with death. The prosecutor informed

the court that it would violate double jeopardy to impose sentences for the two counts of

leaving the scene of an accident with death when they were charged in the alternative

to the vehicular homicide counts. The trial court adjudicated him on the two counts and

sentenced him to time served.

1 Colon was driving erratically at a high rate of speed on Goldenrod Road when he lost control of the car and collided with another car. His two best friends, who were passengers in his car, were killed in the collision and the driver of the other vehicle was severely injured along with two other passengers.

2

Colon appealed and his appellate counsel filed a Rule of Criminal Procedure

3.800(b)(2) motion to correct illegal sentence, claiming several double jeopardy violations. The trial court did not rule on the motion.

On appeal, Colon asserts two separate double jeopardy violations. First, he argues that a conviction for vehicular homicide failure to render aid or give information and a conviction for leaving the scene of an accident with death for the same victim violates double jeopardy. Second he contends that a defendant can be charged with only one count of leaving the scene of an accident involving death or injury when only one accident occurs. The State disputes Colon’s first point, but agrees with the second.

See Yeye v. State, 37 So. 3d 324, 326 (Fla. 4th DCA 2010). See also Hoag v. State,

511 So. 2d 401, 402 (Fla. 5th DCA 1987). Hence, the State urges that the judgment and sentence should reflect convictions for two counts of vehicular homicide and one count of leaving the scene of an accident with death, thereby eliminating the other four counts of leaving the scene.

Colon is correct that the elements of leaving the scene of an accident with death in counts three and four are subsumed in the elements of vehicular homicide in counts one and two. See Hunt v. State, 769 So. 2d 1109, 1111 (Fla. 2d DCA 2000) (citing

Pierce v. State, 744 So. 2d 1193, 1196 (Fla. 4th DCA 1999); Wright v. State, 573 So. 2d

998, 1001 (Fla. 1st DCA 1991)).

The State contends that Colon’s dual convictions for vehicular homicide and one count of leaving the scene of an accident with death no longer violate double jeopardy based on the Florida Supreme Court’s decision in Valdes v. State, 3 So. 3d 1067 (Fla. 2009). We disagree.

3

In a recent opinion, Ivey v. State, 47 So. 3d 908 (Fla. 3d DCA 2010), the Third

District Court of Appeal considered Valdes in the context of dual convictions of DUI manslaughter, enhanced from a second-degree felony to a first-degree felony because

Ivey left the scene of a fatal accident,2 and a separate conviction for leaving the scene of a fatal accident. The court concluded this dual penalty for the same conduct violated double jeopardy.

In sum, Colon’s two convictions for vehicular homicide and one conviction for leaving the scene of an accident with injuries are affirmed. The remaining convictions are vacated.

Finally, we agree with Colon that he is entitled to a new sentencing hearing because of the trial court’s express reliance on Colon’s refusal to admit his culpability.

Hannum v. State, 13 So. 3d 132 (Fla. 2d DCA 2009); Bracero v. State, 10 So. 3d 664

(Fla. 2d DCA 2009); Soto v. State, 874 So. 2d 1215 (Fla. 3d DCA 2004); K.N.M. v.

State, 793 So. 2d 1195 (Fla. 5th DCA 2001). A sentencing court has wide discretion regarding the factors it may consider when imposing a sentence, but “it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt.” Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004).

Here, the trial judge’s questions to Colon, and then his remarks immediately before imposing two maximum consecutive sentences, suggest that the court considered this impermissible factor in arriving at the sentences. Even though the trial

2 Under section 316.193(3)(c)3.b., the penalty is enhanced to a first-degree felony if at the time of the crash the person knew the crash occurred and failed to give information and render aid as required by section 316.062.

4

court articulated other reasons for imposing the maximum sentences, reconsideration of the sentences without this factor is required.

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN and JACOBUS, JJ., concur.

Courtesy of David Edelstein