Florida Criminal Law Opinions

Appellant, who was Florise’s cousin, h a d an intensely close relationship with the victim and her family. Thirteen years older than the victim, he began to live with the family when the victim was in elementary school. He and th e victim had a special and unique relationship. Although no one ever observed inappropriate sexual contact between them, appellant often slept in the victim’s room. While he stayed with the family, appellant got married and started his own family. The victim did not like appellant’s wife at first, but soon the women became friends. After appellant got married, he continued to frequently sleep in bed with the victim. The victim’s stepfather and mother were aware of this sleeping arrangement but did not think it was unusual. Shortly after appellant’s first child was born, he moved his family to Boynton Beach.

Even after the move, appellant was a frequent visitor at the victim’s home, often spending nights in the victim’s room. He had a key to the house and knew the code to the alarm system. The victim often spent weekends with appellant and his family in Boynton Beach; during these visits the victim slept in a number of different places, sometimes in bed with appellant. Appellant’s wife commented that it was normal for her husband and the victim to lounge around together in their underwear. Witnesses described appellant and the victim as having a father- daughter relationship, but with physical interaction like a boyfriend and girlfriend who were always “all over” each other and who would tell each other everything. They spent hours talking in each other’s arms. When not together, appellant and the victim would speak every day by phone or over the Internet.

About six weeks before the murder, a rupture occurred in the relationship between appellant and the victim. Appellant got into an altercation with his wife and the victim intervened. Appellant pushed or hit the victim twice. She took offense and broke off the relationship. Her visits with appellant stopped. After the fight with the victim, appellant’s behavior changed—he stayed home, lying in front of the television all day, not wanting to do anything. Appellant told the victim’s mother that he could not afford to lose the victim’s friendship and that he would give his life for her. Over the next few weeks, appellant repeatedly telephoned the victim. Many times the victim refused to take his calls. To try and repair the relationship, appellant sent text messages and emails in which he professed his friendship and love and made it clear that his life was torn apart by losing his best friend. He told Florise that it was “killing” him to lose the victim’s friendship.

The victim’s response to the changed relationship was different than

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appellant’s. She cut appellant out of her life and, for the first time, began to spend time with other men. Three social friends of the victim were mentioned at trial: Adelyn, the brother of appellant’s wife and a cousin of the victim’s mother; Stephane, a friend of both the victim and Adelyn; and Benny, a boxing instructor. Appellant was jealous that the victim had started going out and having fun.

Adelyn lived with appellant and his family. Florise described him as a friend of her daughter. Edna characterized him as a close friend of her sister’s, whose relationship with her did not change in the month before her death. Adelyn and the victim never argued and never had a falling out. Adelyn met the victim through appellant when she visited Haiti several years before the murder. He denied having an intimate sexual relationship with the victim and testified that he had engaged only in “kissing to more intense” heavy petting with her. Adelyn talked with the victim many times over the two days preceding her death. On the night that she died, he stayed in at appellant’s home and had no contact with anyone between 11 p.m. and 8 a.m. the next morning.

About a month before the murder, Benny the boxing instructor started giving the victim boxing lessons for 2.5 hours every weekday. Three days before the murder, they went out on a date. While they were out, the victim received phone calls that upset her. They had plans to go on a second date the weekend of her death. After the murder, appellant told a friend that he never liked the boxing instructor and that he had gone to the gym to check him out, pretending to be a prospective customer. The instructor remembered showing appellant around on this visit to the gym. Appellant did not think the instructor should be dating a client and did not approve of the victim receiving his late night calls.

Stephane was a friend of both Adelyn and the victim who did not meet appellant until after the murder. The night of her death, the victim went out on a date with Stephane. While the victim was getting ready, Edna used the black cordless phone in her sister’s room. When she was finished, she threw the phone onto the victim’s bed. The victim was in a good mood. She left the house shortly after 9 p.m. About ten minutes later, Edna left the house for her evening out.

The victim picked up Stephane in her car and they went to dinner at Dave & Buster’s. On the way, the victim received a call on her cell phone. Although she was not happy about it, she answered the phone, listened quietly, abruptly hung up, and then was quiet for a while. She received a second call during dinner. Her only contribution to the conversation with the caller was to ask, “Are you done yet?” Phone

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records later established that appellant called the victim twice while she was out with Stephane. Although his phone was turned off, Stephane received two calls from the victim’s house phone at 12:23 and 12:27 a.m. The victim dropped Stephane off at his house between 12:30 and 1:00 a.m. and said she would call him when she got home. Stephane never received the victim’s call.

When Edna arrived home shortly after 3 a.m., she noticed nothing unusual. The front door was locked. The only way to have locked the door from the outside was with a key. Nothing seemed out of place.

After th e victim’s body was discovered, Florise called appellant’s house and spoke to his wife. Appellant was already on his way to the victim’s house. When he arrived, Florise confronted him, but he showed no emotion. Adelyn arrived at the house and spoke to appellant, who said he thought that the boxing trainer was a possible suspect. After talking with the police, Adelyn went to get Stephane, but his car would not start, so he borrowed appellant’s car. Stephane and Adelyn both noticed a black house phone in the car, by the front seat.

When the police later searched appellant’s car, they found the black cordless house phone, which had the same serial and model number as the phone base in the victim’s room. The police called the victim’s number, and the black cordless phone rang. The police also found some jewelry in the glove compartment. Appellant’s conflicting stories about the phone and the jewelry were significant pieces of evidence in the trial.

Several weeks before the murder, Edna and Florise had seen the same jewelry in the victim’s room. The victim showed the jewelry to one of her friends. Appellant told a friend that he had bought the jewelry for his wife and had let the victim look at it. He also told the friend that he had bought the jewelry for the victim. To the police, appellant claimed that he had bought the jewelry for his wife as a present for their fifth wedding anniversary. However, appellant’s wife explained that, as a Jehovah’s Witness, she did not celebrate her wedding anniversary and that her husband had never before given her an anniversary gift.

Several days before the murder, appellant’s wife cleaned out his car. On the night of the murder, she used the car until 9:15 p.m. At no time did she see the jewelry or the black cordless telephone. However, during his first, extensive statement to the detectives, appellant said that he had bought this phone a month before the murder and that the phone had been in his car ever since. In a later interview, appellant changed his story and told the police that he did not put the phone in his car.

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On the night of the murder, appellant left his home around 10 p.m. and did not return until 4 or 5 a.m. He told the police that he was alone, sitting in his car, at a park by the water between 11 p.m. and 4 a.m. He told a friend a different story—that he had been fishing. Appellant had not been fishing for three years. When questioned by the detectives about this discrepancy, appellant maintained that he did not tell his friend anything about going fishing.

Text messages and emails between appellant and the victim gave definition to the intensity of their unique relationship. These are examples of the messages appellant sent to the victim:

I want to reassure you the most important mission for the short time left on this planet is to spoil you with everything the best way I can. Love always, [appellant].

Since the waiting list is long for a date with a hot chick like you, I figure I would ask early. Would you like to see “The Land of the Dead?” It comes out this Friday. Let me know ASAP because brother needs a makeover, to accompany a beautiful lady like you. I hope I am not far down the list.

I am sorry if I sound like I am pressuring you. Have fun wherever you have to be at. Wherever you have to be, have some for me too.

Hey, Love. I just made the deposit of 200 for you.

The state introduced 19 emails from appellant to the victim and three emails from the victim to appellant. Appellant’s emails are needy and intense. He said he was hurting and mentioned killing himself. He was married to his wife, but his relationship with the victim was greater. He loved his wife, but was in love with the victim. Without the victim, he had no on e with whom to discuss personal things. His life was meaningless without her. He liked Adelyn, but warned the victim not to let Adelyn take advantage of her, like kissing him when he was not even her boyfriend. It was killing him inside that he may have lost her to Adelyn, but he was at her mercy.

The victim’s emails to appellant let him know that there had been a sea change in their relationship. For example, in one email the victim told appellant:

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I will never get over the fact that you hurt me. I always believed in you. I always thought we would never part. Unfortunately, I can’t get over the fact that the man I loved whole heartedly, nothing holding back, could ever do what you did.

The sad thing is, I still love you the same. I just can’t be around you anymore. I can’t promise you that I will ever contact you again or ever see you again. You hurt me, yet I still love you. I could never hate you because I love you too much.

It’s funny how at that moment, you could look me in my eye and strike me twice, with no hesitation. It won’t happen again, because I won’t be there anymore for it to happen.

It’s funny how you look me dead in the face, in my eyes, and strike me, not once but twice, the person that you claim to love so deeply. Yet, at the same moment, you didn’t strike [your wife]. That goes to show who you really love.

Other emails described the victim’s feelings for Adelyn and her concerns that other people were interfering in that relationship to “protect” her.

Appellant contends that the victim’s emails to him were inadmissible hearsay. However, the emails were not hearsay because they were offered not for the truth of the matters they contained but to establish the effect that the statements had on appellant, the recipient of the emails.

Subsection 90.801(1)(c), Florida Statutes (2008), defines “hearsay” as 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.” The Supreme Court has recognized that a statement may “be offered to prove a variety of things besides its truth.” Foster v. State, 778 So. 2d 906, 914-15 (Fla. 2000). When a statement is not offered for the truth of its contents, but to prove a material issue in a case, it is not hearsay. Id. at 915. A recognized, non-hearsay use of an out of court statement is to “show motive.” Id.

Thus, a victim’s out of court statements were admitted to prove motive in the homicide case Blackwood v. State, 777 So. 2d 399, 407 (Fla. 2000). There, the Supreme Court considered a witness’s statements that relayed certain comments that the victim had made to the defendant—

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that the victim had “had abortions from [the defendant]” and that the victim was “pregnant from someone else.” Id. The Supreme Court held that the victim’s statements were not hearsay. Id. Rather,

the victim’s statements were offered to show the effect such statements had on [the defendant]. His state of mind and knowledge were relevant to show both his motive and intent in committing murder. Certainly, the [defendant’s] knowledge of the victim’s past abortions, pregnancy, and intention not to see him anymore were material to the issue whether appellant possessed a motive to kill the victim.

Id.

Similar to Blackwood, in the homicide case Foster v. State, the state introduced the victim’s out of court statements to the defendant about reporting an arson in a school auditorium to the campus police. The Supreme Court held that the statements were non-hearsay to “establish both knowledge and motive, rather than to establish the factual truth of the contents of the statements.” 778 So. 2d at 915. The Court observed that the defendant had a “motive for killing [the victim] as soon as he found out about [the victim’s] promise to tell the authorities the next morning” about the arson. Id.; see also Koon v. State, 513 So. 2d 1253, 1255 (Fla. 1987) (holding that a magistrate’s statement to the defendant at a preliminary hearing was not hearsay because it was relevant to defendant’s formation of a motive to kill a prosecuting witness); United States v. Cruz, 805 F.2d 1464, 1478 (11th Cir. 1986) (out of court statement not hearsay if offered “to show the effect it has on [the] hearer”); Stewart v. Henderson, 207 F.3d 374, 377 (7th Cir. 2000) (out of court statements not hearsay where offered to demonstrate impact on listener’s state of mind).

As were the statements in Blackwood and Foster, the victim’s emails to appellant in this case were admissible to establish a motive for the homicide—the sudden deterioration of appellant’s intense relationship with the victim. The state offered the statements not for their truth, but to demonstrate their impact on appellant. Because appellant was the recipient of the victim’s emails, this case is distinguishable from the line of cases involving a victim’s statement to a third person expressing fear of a defendant. See Johnson v. State, 969 So. 2d 938, 951 (Fla. 2007); Thomas v. State, 993 So. 2d 105, 109-10 (Fla. 1st DCA 2008). In such cases, the victim’s statement cannot have had an effect on the defendant who did not hear it, so it cannot be offered for a material, non-hearsay purpose.

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Appellant’s second point involves the statements he gave to the police. Appellant gave two statements, extending over eight hours. These DVD interviews were published to the jury with the benefit of a 746 page transcript. The detectives who questioned appellant used a variety of interrogation techniques: they worked to develop a rapport with appellant, pointing out similarities in their beliefs and backgrounds; they closely observed appellant’s non-verbal reactions to questioning; they confronted appellant with facts in the case that pointed to his guilt; they developed themes about how and why the crime occurred to see if appellant would latch on to one of the themes and talk about the case;1 they offered socially acceptable motives to appellant to see if he would choose one; they offered him opportunities to explain things in a way that would not indicate guilt, but which would require an acknowledgement that he had been lying about certain facts;2 they encouraged appellant to refer to himself in the third person, as “Jimmy,” to distance appellant from the case so that he would be more comfortable talking about it; they appealed to his closeness with the victim’s family to help them solve the case and give the family closure. In spite of the

1For example, one detective told appellant:

People do things for all different kinds of reasons. Love is a strong emotion. People have done crazy things for love. Not romantic love. Jealousy. Things happen. People make mistakes. Some you cannot reverse. But you can still do things to atone, to offer some relief to the family or whatever. Bad things happen.

2For example, in the middle of the interrogation, this exchange occurred:

Detective Smith: Last night, you may have gotten a call—you called Kathy [the victim], right? You had a spat on the phone or whatever. You went by the house, okay. And I know you—Jimmy goes by the house, okay? While she’s out, he hangs out there after mom and dad go to sleep. Hangs outside the house. Kathy comes home. You confront Kathy, right? This is just a hypothetical. You confront her. You guys get in an argument. You take the phone last night. I am not saying you touched her. I am saying you took the phone last night because you did not want her to call the guy she was out with. But then, it’s our job to look at Benny or whoever, because they did whatever they did. What do you think of that hypothetical?

Appellant: Hypothetically, it would not add up. Because if I had a confrontation with her or argument with her, talking is not—she is not going to talk hush, hush.

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detectives’ efforts, appellant steadfastly refused to acknowledge any involvement in the murder.

In the first interview, the detectives questioned appellant about his whereabouts the night of the murder, the nature of his relationship with the victim, discrepancies between his story and Stephane’s, the jewelry found in his car, his lack of emotion or surprise when learning of the victim’s death, how he had a key to the victim’s house, his willingness to submit to DNA testing, how he had “strong reservations” about the “trainer guy,” and the events that led to the deterioration of his relationship with the victim. They discussed voodoo, which appellant described as a “process” or “ritual” which causes the perpetrator to “come forward” to the family. They talked at length about the phone found in appellant’s car, which appellant claimed he had purchased online and which he maintained was not the victim’s. He insisted that the phone ha d been in his car for several weeks. Th e detectives wondered how the phone could maintain its electrical charge for that length of time, but appellant contended that it was possible.

Longer than the first interrogation, appellant’s second interview with the detectives occurred several weeks later. At the beginning of the statement, appellant said he remembered that his wife had cleaned out the car on the day before the murder, so that he could not have been responsible for the phone discovered in his car. He suggested that this fact made Adelyn or Stephane the prime suspects, because they had been in his car the morning the victim’s body was found. The police focused on the discrepancy between this story and appellant’s adamant story about the phone in the first interview. The detectives asked appellant about the closeness of his relationship with the victim. They presented appellant with various theories about what had happened. Appellant never admitted his involvement in the crime.

Appellant argues that the trial court erred in allowing the jury to hear, over defense objection, four statements by the interrogating detectives that indicated their belief as to appellant’s guilt or “theory as to what happened.” Located in different parts of the lengthy interrogation, these are the four statements:

Let me talk to a jury, a grand jury, a judge, and a state attorney and say, “Listen, I spoke with [Appellant]. It took a while. [Appellant] obviously knows he made a mistake.”

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I’m a little fearful you’re gonna do something to yourself. You’re gonna hurt yourself. And I’m being serious. I’m being sincere.

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If you were a jury member and that’s the way it was told to you, you would say, “That guy’s lying.” Right?

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You know why? Because you know it’s true, Jimmy. You drove down here—and I am not yelling. You drove down here to the City of Miramar because you didn’t have control. Where the hell is she? She’s going to be rude to me like that on the phone, in front of Stephane? I don’t think so. I am going to humiliate her at the house. She ain’t there. Now what, Jimmy? Are you going to humiliate her? Did you?

To the last question in the last quoted paragraph, appellant responded, “You are taking one situation and generalizing it.” The questioning then moved on to other matters.

Appellant contends that, when considered in light of other statements contained in the two interviews, these four excerpts amount to reversible error underSparkman v. State, 902 So. 2d 253 (Fla. 4th DCA 2005). Distinguishable fromSparkman, this case does not present the great danger of unfair prejudice that was the basis of that case’s holding.

Sparkman was a manslaughter case involving the death of a toddler. Id. at 254. Other than the defendant, there were no direct witnesses to the events leading up to the child’s death. See id. at 254-57. The case was based largely upon after-the-fact testimony from the child’s father, an emergency medical technician, and two medical examiners, one of whom testified that traumatic, and not accidental injury was the cause of the child’s death. Id. In a tape recorded statement with a detective, the defendant maintained that she did not do anything that would have hurt the baby, that she just shook her a little to get her to wake up from a seizure. Id. at 256-57. During the statement, the detective launched into an extensive recitation of his theory of the case, outlining his version of the facts of the crime. Id. at 257-58. The defendant responded to the detective’s accusations with “Uh huh” and with silence.Id.

We reversed based on the trial court’s failure to exclude the detective’s hypotheses about how the crime occurred from the tape recording. Id. at

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258-59. The basis of the holding was that the probative value of the detective’s words was “substantially outweighed by the danger of unfair prejudice” or “misleading the jury” under section 90.403, Florida Statutes (2005).3 See Shrader v. State, 962 So. 2d 369, 371 (Fla. 4th DCA 2007) (recognizing that basis of holding in Sparkman was that detective’s statements were “blatantly prejudicial”). The danger of unfair prejudice in Sparkman was that the jury might have taken the defendant’s responses to the detective’s detailed a n d speculative narrative—silence and “Uh huh”—as admissions of guilt.

Not everything a detective says to a defendant during a recorded interrogation is unfairly prejudicial under 90.403. The Supreme Court h a s recognized that a jury may hear a n interrogating detective’s statements about a crime when they provoke a relevant response from the defendant being questioned. For example, confronting a defendant with a codefendant’s statements may properly be used “as provocation” to observe a defendant’s reactions. See Jackson v. State, 18 So. 3d 1016, 1031-32 (Fla. 2009). Such statements may be heard by the jury to “give context to the interview.” McWatters v. State, 36 So. 2d 613 (Fla. 2010). When placed in “their proper context,” a n interrogating detective’s statements to a suspect could be understood by a “rational jury” to be “techniques” used by law enforcement officers to secure confessions. Id. at 637 (quoting Worden v. State, 603 So. 2d 581, 583 (Fla. 2d DCA 1992)).

This case does not present the danger of unfair prejudice that informedSparkman. Appellant made no equivocal responses that the jury might have misconstrued. Throughout the eight hours of interrogation, an alert, articulate appellant maintained that he did not commit murder, no matter what interrogation technique the detectives threw at him. The jury had ample time to consider the defendant’s

3Although Sparkman v. State makes reference to the detective’s “hearsay statements,” the hearsay rule cannot have been the basis for the holding. 902 So. 2d at 259. The opinion references the rule that a “trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Id. “[H]earsay evidence is inadmissible” under section 90.802, Florida Statutes (2008), so its admission is not a discretionary ruling of a trial judge. On the other hand, whether evidence is admissible under section 90.403, Florida Statutes (2008), is a discretionary ruling of a trial court. See Sims v. Brown, 574 So. 2d 131, 133 (Fla. 1991) (where the court wrote that the “weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two”); Citrus County v. McQuillin, 840 So. 2d 343, 345 (Fla. 5th DCA 2003) (recognizing abuse of discretion standard of review for rulings on the admissibility of evidence).

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credibility over the course of the extensive questioning. When placed in the context of the entirety of the interrogation, the trial court did not abuse its discretion in admitting the four excerpts quoted above.4

We have considered the other issues raised by appellant and find no reversible error.

DAMOORGIAN and CIKLIN, JJ., concur.

NOTE: DAMOORGIAN, J., did not participate in oral argument, but has had the opportunity to review the entire proceedings.

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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. 06-7295CF10A.

Carey	Haughwout,	Public	Defender,	a n d Timothy	D.	Kenison,
Assistant Public Defender, West Palm Beach, for appellant.

4A trial judge’s application of section 90.403 to eliminate unfairly prejudicial statements is not a precise tool for addressing the problem of unfair prejudice. Given the wide discretion afforded to trial courts’ section 90.403 rulings, that section hardly eradicates prejudice with laser like precision. Faced with a defendant’s interrogation that contains non-hearsay statements by police officers, a trial court might also specially instruct the jury on the limited purpose for which the jury has been allowed to hear the interrogator’s statements. See § 90.107, Fla. Stat. (2005). This is an example of such an instruction:

A recorded police interrogation of the defendant has been introduced into evidence in this trial. During the interrogation, any statements made by the police interrogator are not to be considered by you jurors as evidence of the defendant’s guilt. The statements made by the police interrogator during the interview of the defendant have not been introduced into evidence to prove the truth of the matters asserted in those statements. In fact, the statements made by the police interrogator during the interrogation of the defendant may be false and misleading. It is permissible for a police officer conducting an interrogation of a defendant to make false and misleading statements to the defendant in order to further the aims of the interrogation. However, it is not permissible for you jurors to rely on such police interrogator’s statements as proof of the defendant’s guilt.

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Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

WARNER, J. T.L.T. appeals a n order withholding adjudication but ordering probation on two counts of throwing a deadly missile into two different vehicles. We conclude that the evidence was legally insufficient to support one of the charges. Because the trial court treated the two together in determining T.L.T.’s guilt, and in the process clearly made a material factual error, we reverse.

In the second incident, which occurred immediately after the Patterson incident, Rosalind Lindsay was sitting at a red light, going in the opposite direction of the bus. Traffic was slow, and as the bus passed by to her left, a small object hit her window. She looked down to see a Gatorade bottle bouncing on the ground. She did not see the object hit another vehicle. She then made a U-turn to try to catch the bus, which had already stopped.

At trial, another child testified that he had handed T.L.T. a small plastic Gatorade bottle which was empty. He did not see what T.L.T. did with the bottle. In addition, the state presented a video taken inside the bus during the incident. It showed children quite active on the bus. T.L.T. could be identified in the back, and the court indicated that it observed T.L.T. turning to the bus window twice and laughing, although T.L.T. could not be seen throwing anything out the window.

After the state presented its case, the defense moved for a judgment of dismissal, contending that the state’s evidence did not meet a prima facie case. The trial court denied the motion. The defense did not present any evidence, and the trial court then found that the state had proved its case. In making its findings, the court stated that the Gatorade bottle was full, when in fact the evidence showed that the bottle was empty. From the court’s discussion, it appears that the court concluded that the Gatorade bottle was involved in both incidents. It, however, withheld adjudication and placed T.L.T. on probation. He appeals.

The standard of review of a motion for judgment of dismissal in a juvenile case is the same as that for a judgment of acquittal in a criminal case. See J.P. v. State, 855 So. 2d 1262, 1264 n. 1 (Fla. 4th DCA 2003). A motion for judgment of acquittal pertains to the legal sufficiency of the state’s evidence. If the evidence, taken in a light most favorable to the state does not support a conviction, the motion must be granted. If the state establishes the existence of each element of the crime charged, then the motion must be denied. See State v. Rivera, 719 So. 2d 335, 337 (Fla. 5th DCA 1998). The appellate court reviews a trial court’s denial of a motion for judgment of acquittal de novo. See Jones v. State, 869 So. 2d 1240, 1242 (Fla. 4th DCA 2004).

Where the evidence is circumstantial, a special standard applies. See State v. Law, 559 So. 2d 187 (Fla. 1989). A conviction cannot be sustained when the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, unless the evidence is inconsistent with any reasonable hypothesis of innocence. Id. at 188. The question of whether the evidence fails to exclude all reasonable

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hypotheses of innocence is for the trier of fact to determine. In order to survive a motion for judgment of acquittal, the state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but is required only to introduce substantial, competent evidence which is inconsistent with the defendant’s theory of events. Id. at 189. Once that threshold burden is met, it becomes the trier of fact’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence. Id.

The facts of this case show that two separate incidents occurred, even though the state and the trial court seemed to have treated this as one event involving a plastic bottle of Gatorade. Felicia Patterson’s car was struck while she sat at a stoplight next to the bus. Rosalind Lindsay’s car was struck as she passed the bus going in the opposite direction. Given that both vehicles were beside the bus, according to their drivers, when they were hit by the objects, the evidence was legally insufficient to prove that the same object hit both vehicles.

The state’s evidence, taken in the light most favorable to it, shows that another child on the bus handed T.L.T. an empty Gatorade bottle. The bus driver saw T.L.T. throw something out of the window, although the bus video does not show T.L.T. throwing anything. Ms. Lindsay identified the object that hit her vehicle as an empty Gatorade bottle. Therefore, we conclude that there was sufficient evidence, both direct and circumstantial, to satisfy the state’s burden as to the Lindsay incident,1although the evidence showed that the bottle was empty, not full.

On the other hand, no evidence supports the state’s case that the defendant threw anything out of the window to dent the Patterson vehicle. No one saw anything thrown from the bus other than the empty Gatorade bottle which hit the Lindsay vehicle. No evidence placed anything but the bottle in T.L.T.’s hand. The evidence was legally insufficient to support this charge.

E.J. v. State, 554 So. 2d 578 (Fla. 3d DCA 1989), on which T.L.T. relies, supports our conclusion that the state produced sufficient evidence to uphold the charge regarding the Lindsay vehicle but not the

1 T.L.T. does not raise, as an issue on appeal, the question of whether an empty Gatorade bottle could constitute a deadly missile. We therefore do not address that issue.

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charge involving the Patterson vehicle. In E.J., E.J. verbally threatened the occupants of a car and when they began to drive away an object was thrown from the area where E.J. and seven other boys were gathered, denting the vehicle. The occupants of the vehicle did not see a rock in E.J.’s hand but did see him making a throwing motion. The appellate court explained that because no one saw the object thrown, it could not uphold the adjudication of E.J. for throwing a deadly missile. Similarly, in this case no one saw the object thrown which caused the dent in the Patterson vehicle. In contrast, as to the Lindsay vehicle, the state’s case showed that T.L.T. had possession of an empty Gatorade bottle, made a throwing motion outside of the bus, and an empty Gatorade bottle hit the Lindsay vehicle.

We thus reverse and remand to the trial court to vacate the sentence on the count of throwing a deadly missile into the Patterson vehicle, as the court had already withheld adjudication. As to the Lindsay vehicle charge, we affirm as sufficient evidence supports the adjudication. On remand, the court should reconsider the sentence on the remaining charge, as the elimination of the Patterson charge may affect the court’s judgment as to the propriety of the sentence, particularly because the trial court erroneously concluded that the evidence showed that T.L.T. had thrown a full bottle out of the bus window.

Reversed and remanded for further proceedings in accordance with this opinion.

POLEN and LEVINE, JJ., concur.

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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Merrilee Ehrlich, Judge; L.T. Case No. 08-9075 DL00A.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, 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.

Detective Voss described Rex’s training and experience. The two had been a team for six or seven years. Rex was a dual purpose K-9, which means that he was an apprehension dog in addition to serving as a narcotics detection dog. The Okeechobee Sheriff’s Office obtained Rex from Metro-Dade K-9 Services in Hialeah. K-9 Services had trained Rex for narcotics and apprehension work. This initial training was the basic training Rex needed to be a police dog. A police dog’s handler then conducts proficiency training throughout the dog’s career.

Voss explained that he relied on Rex’s alerts to provide probable cause for searches. He testified that Rex was certified to detect marijuana, cocaine, hash, heroin, ecstasy, and methamphetamine. Rex was certified in narcotics and apprehension work by the National Detection Dog Association, the North American Police Work Dog Association, and the Florida Police Work Dog Association. Voss tried to maintain the dog’s certifications each year, depending on the location where the certification evaluations were held. Over the time that Voss and Rex worked together, they obtained between 50 and 80 certificates. In addition to that training, Voss trained Rex once a week or every other week in a controlled odor environment. The sheriff’s office maintained records for Rex’s certifications and training.

On cross-examination, Voss stated that Rex ha d failed one test. During that 2007 test, methamphetamine was placed in a car. Rex was able to recognize the odor and identify the car, but not the source of the odor within the car, “because of the depth of the hide.” This one failed test was but one portion of an overall certification evaluation.

Voss also described instances where Rex alerted to the odor of drugs in a car but a subsequent search located no drugs. Voss estimated these false positives, or alerts to residual odor, occurred in less than 5% of the hundreds of times Rex had been used. He added that, in such cases, he often questioned the driver of the car and determined that drugs had at one time been used in the car. Voss did not calculate an overall accuracy rate for Rex and he did not know of any agency that did so for its dogs.

Frost argued that Rex’s alert, by itself, did not provide probable cause for the search of the car. The trial court denied the motion to suppress, relying on State v. Laveroni, 910 So. 2d 333 (Fla. 4th DCA 2005).

Two lines of cases address the sufficiency of a police dog’s reliability to provide probable cause for a warrantless search. Frost relies on the first line of cases, which began with Matheson v. State, 870 So. 2d 8 (Fla. 2d

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DCA 2003), review dismissed, 896 So. 2d 748 (Fla. 2005), cert. denied, 546 U.S. 998 (2005). In Matheson, the Second District held that a dog’s alert to the presence of drugs may provide probable cause, but not by itself; proof that a narcotic dog has been trained and certified is insufficient in and of itself to establish probable cause for a search. Id. at 12, 14. The State must also demonstrate that “an alert by a narcotics detection dog is sufficiently ‘reliable’ to furnish probable cause to search.”Id. at 14. Factors informing reliability are the dog’s training, the standards or criteria used to select dogs for narcotics training, the standards the dog had to meet to complete training, and the dog’s performance history. Id. The Second District placed particular emphasis on the dog’s performance history. Id. at 15.

No other district has followed Matheson. See State v. Tanner, 915 So. 2d 762 (Fla. 2d DCA 2005); Gibson v. State, 968 So. 2d 631 (Fla. 2d DCA 2007), review dismissed, 985 So. 2d 1088 (Fla. 2008); Tedder v. State, 18 So. 3d 1052 (Fla. 2d DCA 2008); State v. McNeal, 35 Fla. L. Weekly D1261 (Fla. 2d DCA June 4, 2010).

The state urges us to rely on the second line of cases, beginning with our decision in State v. Laveroni, which reversed a circuit court’s grant of a motion to suppress. There, the defendant’s written motion argued that drug evidence should be suppressed because of the unreasonably long length of time between a traffic stop and the arrival of the dog. Laveroni, 910 So. 2d at 334. At the hearing on the motion, after the presentation of evidence and argument, the circuit court sua sponte raised “the issue of whether there was sufficient proof that the narcotics dog was qualified so as to establish probable cause under Matheson v. State.” Id. Neither party had offered evidence on the issue. Id. at 335. Instead of allowing the state to present more evidence, the court granted the defendant’s motion to suppress. Id. We reversed, holding that the defendant’s motion and argument, which had challenged only the unreasonable delay, did not put the State on notice that the dog’s qualifications would also be challenged. Id.

In Laveroni, we also provided guidance for how the case should be handled on remand, explaining the basis for our disagreement with Matheson. Id. Based on our review of case law, we concluded that Matheson was “out of the mainstream.” Id. Nonetheless, we agreed with the Second District that a dog’s past performance records are relevant to the issue of the reliability of a dog sniff. We then described the analytical framework to be applied when a defendant challenges the use of a dog sniff to establish probable cause for a search. Id. We wrote

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that the state can make a prima facie showing of probable case based on a narcotic dog’s alert by demonstrating that the dog has been properly trained and certified. If the defendant wishes to challenge the reliability of the dog, he can do so by using the performance records of the dog, or other evidence, such as expert testimony. Whether probable cause has been established will then be resolved by the trial court.

Id. at 336 (citations omitted) (following Dawson v. State, 518 S.E.2d 477 (Ga. Ct. App. 1999)). We certified direct conflict with Matheson. Id.

Laveroni has been followed by the First and Fifth Districts. See Harris v. State, 989 So. 2d 1214 (Fla. 1st DCA 2008); State v. Coleman, 911 So. 2d 259 (Fla. 5th DCA 2005). The Supreme Court granted review in Harris to resolve the inter-district conflict and held oral argument on June 4, 2009. See Docket, Harris v. State, No. SC08-1871. The court has not issued its opinion.

In the absence of a Florida Supreme Court decision resolving the inter-district conflict, the circuit court in this case was bound by Laveroni. See Miller v. State, 980 So. 2d 1092, 1094 (Fla. 2d DCA 2008) (“[B]ecause the district courts of appeal in Florida are intended to be courts of final appellate jurisdiction, the opinion of a district court is binding on all trial courts in the state. If there is unresolved conflict between the district courts, the trial court is bound by the precedent in its own appellate district.”) (citations omitted).

Frost argues that Laveroni’s disagreement with Matheson and the articulation of a different rule is dictum and he urges us not follow it. It is true that Laveronireversed because the circuit court sua sponte raised the dog issue and denied the state’s request to present witnesses to qualify the dog. See 910 So. 2d at 334 35. But, although the discussion of probable cause pertaining to a dog sniff in Laveroniis a form of dictum, it is nonetheless authoritative as judicial dictum.

There are two kinds of dicta. On the one hand is obiter dictum, which is “a purely gratuitous observation or remark made in pronouncing an opinion and which concerns some rule, principle or application of law not necessarily involved in the case or essential to its determination.” Bunn v. Bunn, 311 So. 2d 387, 389 (Fla. 4th DCA 1975). On the other hand is judicial dictum:

Judicial dicta are comments in a judicial opinion that are

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unnecessary to the disposition of the case, but involve an issue briefed and argued b y th e parties. Black’s Law Dictionary 465 (7th ed. 1999). Judicial dicta have the force of a determination by a reviewing court and should receive dispositive weight in an inferior court. Cates v. Cates, 156 Ill. 2d 76, 80, 189 Ill. Dec. 14, 619 N.E.2d 715 (1993).

People v. Williams, 788 N.E.2d 1126, 1136 (Ill. 2003).1 In particular, “[a]n expression which might otherwise be regarded as dictum becomes an authoritative statement when the court expressly declares it to be a guide for future conduct.”State v. Fahringer, 666 P.2d 514, 515 (Ariz. 2d Div. Ct. App. 1983) (citation omitted).

Here, our analysis in Laveroni providing a framework for analyzing a Fourth Amendment challenge to a dog’s sniffing qualifications was judicial dictum. It was unnecessary to the ultimate holding, but the dog issue was briefed by the parties. The analysis was not purely gratuitous; rather, it was to guide the case on remand and for future cases as well. Finally, our pronouncement was not perfunctory, b u t reflected a considered and deliberate judgment by the court. Therefore, we continue to abide by Laveroni, subject to a different ruling on the issue by the Florida Supreme Court.

Applying Laveroni to this case, we find no error in the ruling of the circuit court. A circuit court’s ruling on a motion to suppress is a mixed question of fact and law.Hines v. State, 737 So. 2d 1182, 1184 (Fla. 1st DCA 1999). Factual findings are reviewed for competent, substantial evidence; the application of the law to those facts is reviewed de novo. State v. Gomez, 937 So. 2d 828, 831 (Fla. 4th DCA 2006). Because the ruling is presumed correct, the evidence and reasonable inferences and deductions derived from it must b e interpreted in a manner most

1Many jurisdictions recognize the distinction between obiter dicta and judicial dicta.See, e.g., Cerro Metal Prods. v. Marshall, 620 F.2d 964, 978-79 & n.39 (3d Cir. 1980);Ex parte M.D.C., 39 So. 3d 1117, 1129 n.4 (Ala. 2009); State v. Widenhouse, 582 So. 2d 1374, 1382 (La. 2d Cir. Ct. App. 1991); State v. Baby, 946 A.2d 463, 497-98 (Md. 2008) (Raker, J., concurring and dissenting);

Johnson v. White, 420 N.W.2d 87, 90 n.2 (Mich. 1988); State ex rel. Ahern v. Young, 141 N.W.2d 15, 19 (Minn. 1966); Dyer v. Drucker, 104 N.Y.S. 166, 168- 69 (N.Y. Sup. Ct. 1906); Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex. 1964); W. Va. Dep’t of Transp., Div. of Highways v. Parkersburg Inn, 671 S.E.2d 693, 699-700 & n.6 (W.Va. 2008); Brown v. Chicago & N.W. Ry. Co., 78 N.W. 771, 776 (Wis. 1899). See also 21 C.J.S. Courts § 230 (on judicial dicta).

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favorable to sustaining the court’s ruling. State v. Allen, 994 So. 2d 1192, 1194 (Fla. 5th DCA 2008). A dog’s reliability is a question of fact. See Matheson, 870 So. 2d at 12 (quoting Dawson, 518 S.E.2d at 480).

Here, Frost challenged Rex’s reliability. Under Laveroni, to make a prima facie showing of probable cause, the state was required to demonstrate that Rex was properly trained and certified 910 So. 2d at 336. The state satisfied this burden by having Detective Voss describe Rex’s certifications and training regimen. Voss testified that Rex was certified to detect marijuana, cocaine, hash, heroin, ecstasy, and methamphetamines. Voss explained that Rex trained more than once a month in a controlled odor environment throughout his six years as a police dog. Consequently, the state made a prima facie showing of Rex’s reliability.

Foster relied o n Rex’s performance records to challenge Rex’s reliability. On cross-examination of Voss, Foster elicited testimony that Rex had a 5% false positive rate, so that Rex was accurate 95% of the time. A 95% accuracy rate indicates significant reliability.2 Competent, substantial evidence supported the circuit court’s finding of the dog’s reliability to support a finding of probable cause.

Affirmed.

STEVENSON and TAYLOR, JJ., concur.

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2See United States v. Donnelly, 475 F.3d 946, 955 (8th Cir. 2007) (finding a dog reliable when, combined with his certifications and consistent training, “his accuracy rate exceeded [50] percent”); United States v. $30,670, 403 F.3d 448, 460 (7th Cir. 2005) (finding a dog reliable when “[d]rugs or currency were found after 97.6% of his alerts,” “[d]rugs were found after 70.1% of his alerts,” and “[o]nly five of Bax’s alerts (the remaining 2.4%) were unambiguous false positives”); United States v. Navarro-Camacho, 186 F.3d 701, 706 (6th Cir. 1999) (finding a dog reliable when it had “rate of reliability . . . between 90 and 97 percent,” even if it “occasionally alerted falsely”); United States v. Carroll, 537 F. Supp. 2d 1290, 1297 (N.D. Ga. 2008) (“Even if Azteck’s accuracy rate is only 52%, that level of reliability is sufficient for his alert to establish probable cause. Azteck’s alert indicates the presence of drugs by more than a preponderance of the evidence. Azteck’s accuracy exceeds [the] ‘fair probability’ requirement of probable cause.”).

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Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Lawrence Mirman, Judge; L.T. Case No. 2007CF922.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 06-8814CF10A.

Ingemar Keitt, Blountstown, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

No motion for rehearing shall be permitted.

Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

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

Not final until disposition of timely filed motion for rehearing.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

ROSHAN RAMKHALAWAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-4765

[January 26, 2011]

PER CURIAM.

Appellant appeals a circuit court order summarily denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 for lack of a valid oath. This was error because the unnotarized oath did comport with the requirements of rule 3.850 and the model form of rule 3.987, Florida Rule of Criminal Procedure.

The trial court did not consider appellant’s five claims of ineffective assistance of trial counsel on their merit. We find that ground four, ineffective assistance of trial counsel for failure to object to and preserve for appeal the issue of the trial court’s interruption of defense counsel’s closing arguments on reasonable doubt, to be largely repetitive of one of the claims he raised and which was rejected on direct appeal. Also, we conclude that the claim is without merit as a matter of law. We therefore affirm the trial court’s summary denial of that claim under the tipsy coachman rule. See S&I Invs. v. Payless Flea Mkt., Inc., 36 So. 3d 909, 913–14 n.3 (Fla. 4th DCA 2010).

As for the remaining claims, the state conceded that appellant had the right to have leave to amend claim one under Spera v. State, 971 So. 2d 754 (Fla. 2007). We find this to be the case for claims two, three and five as well. Therefore, we reverse and remand to the trial court for further proceedings consistent with this opinion as to claims one, two, three and five, and affirm the circuit court’s summary denial of claim four.

Affirmed in part, reversed in part and remanded.

GROSS, C.J., TAYLOR and CIKLIN, JJ., concur.

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Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. 04-8222 CF10A.

Roshan Ramkhalawan, Belle Glade, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

GUSTAV PETER FINKEL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-249

[January 26, 2011]

DAMOORGIAN, J.

Gustav Peter Finkel assigns error to his judgment and sentence for grand theft. Finkel was charged with the crimes of burglary of a dwelling (Count I) and grand theft of property and currency in excess of $100,000.00 (Count II). After a jury trial, Finkel was found guilty of Count I, as charged, and petit theft, a lesser-included offense of the grand theft as charged in Count II. For reasons not entirely clear from the record, the judgment reflects that Finkel was found guilty of grand theft as to Count II. Moreover, the sentencing order imposed a sentence of 27.75 months imprisonment for each count, with each sentence to run concurrent with the other. Finkel argues that the judgment adjudicating him guilty of grand theft is fundamentally erroneous because the jury found him guilty of the petit theft, a second degree misdemeanor. See Miller v. State, 764 So. 2d 640, 645 (Fla. 1st DCA 2000). Moreover, the concurrent sentence of 27.75 months appended to what should have been th e second degree misdemeanor count exceeds the maximum sentence of 60 days incarceration. See § 812.014(3)(a), Fla. Stat. (2009); § 775.082(4)(b), Fla. Stat. (2009). Therefore, the sentence is illegal. Rightfully so, the State concedes error.

Accordingly, we remand with directions to the trial court to correct the written judgment, so that it reflects the jury’s verdict on Count II, finding Finkel guilty of petit theft. On remand, the trial court shall resentence Finkel on Count II to a sentence not to exceed the maximum permitted by law.

Affirmed and Remanded to Correct Judgment and Sentence.

POLEN and GERBER, JJ., concur.

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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale C. Cohen, Judge; L.T. Case No. 09-12938 CF10A.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Appeal of order granting rule 3.800(a) motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case Nos. 562001CF003925A, 562001CF003926A & 562001CF004299A.

Ronald King, Madison, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.