Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

CASE NO. 1D10-5844

EDWARD GEORGE JONES,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

___________________________/

Opinion filed February 28, 2011.

Petition for Writ of Habeas Corpus — Original Jurisdiction. Edward George Jones, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

This petition for writ of habeas corpus challenges the opinion in Jones v. State, 36 So. 3d 659 (Fla. 1st DCA 2010) (table), which affirmed the denial of a postconviction motion filed in Hamilton County Circuit Court case number 06-175-CA. The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So. 2d 1236 (Fla. 2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Additionally, due to petitioner’s abuse of the legal process, petitioner was directed to show cause why sanctions should not be imposed against him, including a finding that this proceeding is frivolous and referring the case to the Department of Corrections for sanctions pursuant to section 944.279, Florida Statutes (2010), and a prohibition against any future appeals or petitions challenging the judgment and sentence. See State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, petitioner is hereby barred from future pro se filings in this court concerning Hamilton County Circuit Court case number 06-175-CA. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are signed by a member in good standing of The Florida Bar.

In addition, this court finds that this proceeding is frivolous and this case is hereby referred to the Department of Corrections for sanctions pursuant to section 944.279, Florida Statutes (2010) (providing that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections).

KAHN and WETHERELL, JJ., CONCUR; BENTON, C.J., CONCURS IN PART AND DISSENTS IN PART.

BENTON, C.J., concurring in part and dissenting in part.

I concur in the judgment except insofar as it bars “future pro se filings in this court concerning Hamilton County Circuit Court case number 06-175-CA.”

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

OCTAVIUS D. WARE,

Appellant,

v.                                                                    CASE NO. 1D09-3015

STATE OF FLORIDA,

Appellee.

_____________________________/

Opinion filed February 28, 2011.

An appeal from the Circuit Court for Leon County.

Terry P. Lewis, Judge.

Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

In this probation revocation case, the state properly concedes that the trial

court’s  written  order  does  not  conform  to  the  court’s  oral  pronouncement

concerning the conditions of probation Appellant violated. Additionally, we agree with Appellant that the trial court abused its discretion in determining that

Appellant  violated  his  probation  by  committing  the  offense  of  possession  of  a

firearm by a convicted felon because the record does not contain sufficient non-

hearsay  evidence  to  support  this  finding.    However,  we  need  not  remand  for

reconsideration based on this error because it is clear from the record that the trial

court would have revoked Appellant’s probation and imposed the same sentence

based solely on the domestic battery offense, which was supported by sufficient

evidence. ^* Cf.  Thomas  v.  State,  453  So.  2d  156,  157  (Fla.  1st  DCA  1984)

(explaining  that  when  a  portion  of  a  probation  order  is  reversed,  the  court  will

remand for reconsideration if it cannot be determined from the record that the trial

court  would  have  revoked  probation  and  imposed  the  same  sentence  on  the

remaining grounds).  Accordingly, we remand to the trial court only to correct the

^* At the end of the revocation hearing, the trial court stated that it “f[ou]nd the evidence extremely convincing in this case that there was a violation of probation”; that the violation was willful and substantial; and that the evidence “certainly convinces [the court] that there was domestic battery ….” At the sentencing hearing, the trial court rejected Appellant’s request for leniency, noting that Appellant had already been given several “second chances” by having been placed on and returned to probation. The court stated that the circumstances of the case were “particularly aggravating” and that “the circumstances suggest a long period of incarceration is appropriate.” The trial court’s comments at the sentencing hearing focused on the domestic battery, as did the new conditions of probation imposed by the court, i.e., batterer’s intervention program and no-contact order with the victim. The possession of firearm offense was not even mentioned at the sentencing hearing.

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revocation order to reflect that Appellant violated his probation by committing the offense of domestic battery. We affirm the other issues raised by Appellant without further comment.

AFFIRMED in part; REMANDED for correction of revocation order. ROBERTS, CLARK and WETHERELL, JJ., CONCUR.

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

RAMIRO IBARRA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D08-3955

Opinion filed February 25, 2011.

Appeal from the Circuit Court for Hillsborough County; Wayne S. Timmerman, Judge.

Wade M. Whidden of Whidden Law, P.L., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

KELLY, Judge.

Ramiro Ibarra challenges his judgment and sentences for trafficking in cocaine and conspiracy to traffic in cocaine. Although he asserts two grounds on appeal that he contends require a new trial, we address only his argument that the trial

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court reversibly erred when it allowed the State to impeach him with a previously undisclosed statement without first conducting a Richardson1 hearing to determine if a discovery violation had occurred and, if so, whether he was prejudiced. We agree that the trial court erred when it failed to make the required inquiry, and because the State has not met its burden to prove beyond a reasonable doubt that Ibarra was not procedurally prejudiced by the violation, we reverse.

At trial, Ibarra, who claimed he was entrapped, testified in his own defense. After he testified, the State announced its intention to call a police detective as a

rebuttal witness. The State indicated the detective would testify about an oral statement Ibarra made to the detective that was contrary to Ibarra’s trial testimony. The State had not previously disclosed the content of the statement as required by Florida Rule of Criminal Procedure 3.220(b)(1)(C). Defense counsel objected and notified the court that the State had never disclosed the statement. Ibarra argues that at this juncture the trial court was obligated to conduct a Richardson hearing to determine whether a discovery violation had occurred and whether Ibarra had been prejudiced by the violation. See, e.g., Reese v. State, 694 So. 2d 678 (Fla. 1997) (noting the necessity of a Richardson hearing where the State sought to introduce an oral statement by the defendant to the police where the content of the statement had not been provided to defense counsel). The State argues the hearing was unnecessary because it never called the detective in rebuttal and instead only used Ibarra’s statement to impeach him during cross-examination. However, the rule requiring discovery of the defendant’s statements applies equally when the statement is used for impeachment purposes. See

1See Richardson v. State, 246 So. 2d 771 (Fla. 1971).

Portner v. State, 802 So. 2d 442, 446 (Fla. 4th DCA 2001) (noting that “[t]here is no impeachment exception to the Richardson rule”). Accordingly, we agree with Ibarra that the trial court was obligated to conduct the hearing.

The standard for determining whether reversal is required for failing to conduct a Richardson hearing is harmless error. State v. Schopp, 653 So. 2d 1016, 1020-21 (Fla. 1995). The error is harmless only when the State can demonstrate, beyond a reasonable doubt, that the aggrieved party was not procedurally prejudiced by the discovery violation. Id. at 1020. “As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.” Id. Because we cannot say beyond a reasonable doubt that the defense was not procedurally prejudiced by the State’s surprise use of Ibarra’s statement to the detective, we must reverse and remand for a new trial. See, e.g., Portner, 802 So. 2d at 446 (“In most cases, the decision whether a defendant will testify is a strategic call which can materially alter the outcome of a case. A defendant’s ability to make an informed decision in this regard is certainly affected by the state’s nondisclosure of impeachment material discoverable under the rules.”).

Reversed and remanded for a new trial.

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CASANUEVA, C.J., and MORRIS, J., Concur.

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

BOBBY LEE EWING,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D09-6020

Opinion filed February 25, 2011.

Appeal from the Circuit Court for Polk County; James A. Yancey, Judge.

James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Bobby Lee Ewing appeals his judgments and sentences for possession of methamphetamine with intent to sell,1 sale of methamphetamine,2 possession of drug paraphernalia,3 and possession of a structure used for trafficking in a controlled

1See §§ 893.13(1)(a)(1), .03(2)(c)(4), Fla. Stat. (2008). 2See §§ 893.13(1)(a)(1), .03(2)(c)(4).

3See § 893.147(1).

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substance.4 For each of the felonies, he received a concurrent ninety-month term of imprisonment. We affirm all of the convictions with the exception of the conviction for possession of methamphetamine with intent to sell. As to that offense, the trial court erred in failing to give a jury instruction on simple possession of methamphetamine as a necessary lesser-included offense. Even though this lesser-included offense is not listed in the standard instructions as a necessary lesser-included offense, we reverse the conviction and sentence and remand for a new trial. Finally, because this reversal may significantly affect the scoresheet that the trial court used in sentencing Mr. Ewing for the other felonies, we reverse those sentences and remand for resentencing.

For events occurring on December 9, 2008, the State charged Mr. Ewing with possession of methamphetamine with intent to sell, sale of methamphetamine, possession of drug paraphernalia, and possession of a structure used for trafficking in a controlled substance. Mr. Ewing went to trial in October 2009 on the charges. During the trial, the judge discussed the jury instructions with the attorneys immediately before a lunch break. At that time, the judge expressed his opinion that possession of methamphetamine had to be a necessary lesser-included offense of possession of methamphetamine with intent to sell. He asked the attorneys to add that offense as a lesser-included offense on the verdict form.

A few hours later, when the attorneys were working with the judge at the jury instruction conference, the assistant state attorney pointed out that Florida Standard Jury Instruction in Criminal Cases 25.2 does not list simple possession as a necessary lesser-included offense for possession with intent to sell. The judge clearly

4See § 893.1351(2).

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doubted the accuracy of the list of lesser-included offenses contained in the standard instructions, but he decided—against his better judgment—to obey the content of the standard instruction. Unfortunately, it turns out that he should have relied on his own better judgment instead of the standard jury instruction.

The relevant standard jury instruction includes standard language to use with a wide range of drug offenses under subsections 893.13(1)(a) and (2)(a), Florida Statutes (2008). As a result, it was probably very difficult for the committee creating these standard instructions to prepare a list of lesser-included offenses in table form that would be accurate for all of the offenses in the statute. In this case, the table in the standard instructions is simply incomplete for this offense.

In Carle v. State, 983 So. 2d 693, 695 (Fla. 1st DCA 2008), the court held that simple possession of diazepam was a necessary lesser-included offense of possession of diazepam with intent to sell. See also Murphy v. State, 684 So. 2d 267, 269 (Fla. 4th DCA 1996) (reversing the defendant’s conviction for possession of cocaine with intent to deliver because the trial court denied his request to instruct the jury on the lesser-included offense of possession of cocaine); Johnson v. State, 570 So. 2d 1158, 1158 (Fla. 5th DCA 1990) (finding that the defendant was entitled to an instruction on simple possession as a lesser-included offense of the unlawful sale, delivery, or possession of a controlled substance with intent to sell or deliver). In examining the elements of the offense, it is clear that the crime of possession of any drug is an offense that is fully subsumed within the elements of the crime of possession of the drug with intent to sell. See, e.g., Wilcox v. State, 675 So. 2d 1043, 1043 (Fla. 4th DCA 1996) (“Patently, one cannot be convicted of possession with intent to sell under section

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893.13(1)(a) if all the elements of possession are not met.”). Given that simple possession in this context is the next lesser-included offense, the trial court’s failure to provide this instruction over the defendant’s objection is an error requiring a new trial. State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978) (“[T]he failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible.”).

Although the Supreme Court Committee on Standard Jury Instructions in Criminal Cases does its best to provide adequate instructions, it is worth noting that the supreme court approves the committee’s instructions for use but does not express an opinion on the correctness of the instructions. For example, when the Supreme Court approved the committee’s proposed changes in July 2010, it included its standard language that it “authorize[d] the publication and use of the instructions,” but advised that:

In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor

contesting the legal correctness of the instructions. We further caution all interested parties that any comments

associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.

In re Standard Jury Instructions in Criminal Cases–Report No. 2010-02, 44 So. 3d 565, 566 (Fla. 2010).

Moreover, Florida Rule of Criminal Procedure 3.985, which is tucked away inside the section of the rules on forms, explains:

The forms of Florida Standard Jury Instructions in Criminal Cases . . . may be used by the trial judges of this

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state in charging the jury in every criminal case to the extent that the forms are applicable, unless the trial judge shall

determine that an applicable form of instruction is erroneous or inadequate, in which event the judge shall modify or amend the form or give such other instruction as the trial judge shall determine to be necessary to instruct the jury

accurately and sufficiently on the circumstances of the case; and, in such event, the trial judge shall state on the record or in a separate order the respect in which the judge finds the standard form erroneous or inadequate and the legal basis of the judge’s finding.

This is one of those cases in which the trial court should have stated on the record its determination that the standard instruction was inadequate. In that event, we would simply have affirmed this case and sent the trial court’s finding on to the Committee for its consideration. As it stands, we must send this opinion to the Committee and require the trial court to retry this count of the information.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JOHNNY BERNARD JACKSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D10-1985

Opinion filed February 25, 2011.

Appeal from the Circuit Court for Hillsborough County; Daniel L. Perry, Judge.

James Marion Moorman, Public Defender, and Whilden S. Parker, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Johnny Bernard Jackson appeals the revocation of his probation and the resulting sentences for numerous counts of robbery, armed robbery, and attempted robbery. We affirm the revocation of his probation without further comment. We write

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only to address a scrivener’s error as well as the practice of issuing new judgment forms upon revocation of probation.

Jackson argues that remand is required for an amended revocation order clarifying exactly what lower tribunal cases were subject to revocation. Although Jackson has presented more than one argument on this issue, we find that remand is required only for the trial court to add lower tribunal case number 95-94 to the order of revocation. It is clear from the record before this court that case number 95-94 was subject to the trial court’s order of revocation and was only omitted due to a scrivener’s error, which is not surprising considering the number of lower tribunal cases involved. Accordingly we remand solely for this correction.

We do take this opportunity, however, to address an issue which was discussed in this court’s opinion in Dawkins v. State, 936 So. 2d 710, 712 (Fla. 2d DCA 2006). Upon revocation, the trial court in this case issued new judgment forms which were signed fifteen years after the original judgments. In Dawkins, we noted that this appears to be a procedure utilized in the Thirteenth Judicial Circuit every time a sentence is imposed upon revocation of probation. Id. at 711. We noted in Dawkins that we were “not aware of any rule or statute that expressly permits a circuit court to enter multiple judgments of conviction for the same offense in one case.” Id. at 712.

While we have a revocation order in this case and therefore do not have the same jurisdictional problem that arose in Dawkins, we stress that the entry of a new judgment form is superfluous and could cause undue confusion. For example, with the public record containing duplicative judgment forms entered fifteen years after the original judgments, it could be difficult to determine exactly how many offenses the

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defendant had committed. There is also a question as to whether the two-year period for filing a motion for postconviction relief begins anew. These concerns were fleshed out in Dawkins, but because this issue has been presented to us again, we emphasize that such duplicative judgment forms are unnecessary and should be avoided.

Affirmed and remanded with instructions.

NORTHCUTT, J., Concurs. ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge, Concurring.

I fully concur in this opinion. I write only to observe that unintentionally the Department of Corrections is contributing to the problems caused by duplicative judgments in criminal cases. The confusion arises from the uniform commitment form that the Department designed and supplies to the circuit courts. See § 944.17(4), Fla. Stat. (2010). The standard form is confusing and makes no reference to an order of revocation of probation or community control. A reference to an order of revocation would be helpful because the Department probably needs to obtain a certified copy of such an order when it takes custody of a defendant who is serving a split sentence and who returns to prison as a result of a violation of probation or community control.

The standard form, which gives the sheriff the authority to transfer a prisoner from county jail to the Department, explains that the defendant has been “duly convicted” “as appears from the attached certified copies of indictment or information

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filed, judgement [sic] and sentence, and felony disposition and sentence data from which are hereby made parts hereof.” I would note that, at least in the Second District, some clerks spell “judgment” correctly and others spell it “judgement.” I am also not certain whether the Department’s form is referring to a “felony disposition and sentence data form[,] which” is made part of the commitment package, or to “felony disposition and sentence data from which” is made part of the package; we receive both versions of the uniform commitment form from clerks within this circuit.1

Typographical issues aside, some circuit courts have read the standard uniform commitment form as requiring them to enter duplicative judgments when imposing a sentence on a violation of probation. In actuality, the circuit court must enter a judgment on a violation of probation “unless [the defendant] has previously been adjudged guilty.” See § 948.06(2)(e), Fla. Stat. (2010) (emphasis added). Thus, the circuit court only enters a judgment on a violation of probation in those instances when it withheld an adjudication of guilt, i.e., withheld judgment, at the time it originally imposed probation.

Section 948.06 does not expressly state that an order of revocation of probation or community control is the order otherwise entered in this context, but such an order is implied by that statute. The legislature has expressly identified the order revoking probation as the appealable order. See § 924.06(1)(c), Fla. Stat. (2010). The supreme court has created a form order for use on revocation of probation and community control. See Fla. R. Crim. P. 3.995. I assume the Department has adopted

1Although this form is apparently designed and supplied by the Department, I have found no administrative regulations that address the uniform commitment form and do not know when the Department last revised the form.

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the uniform order on revocation of probation and community control as the law requires. See § 944.17(4).

Although this case is not an example, this court continues to receive many appeals from defendants whom the circuit courts have sentenced and transferred to the Department without the necessary order of revocation of probation. Instead of the order of revocation, this court receives duplicative judgments. These duplicative judgments

are, at best, confusing and unnecessary. Hopefully, they are harmless in most contexts. While such a duplicative judgment is unnecessary and usually harmless, the absence of the order of revocation of probation is not. That order is the predicate order empowering the circuit court to enter a new sentence without violating double jeopardy. Accordingly, this court regularly relinquishes jurisdiction to the circuit court, requiring the circuit court to enter this essential order.

If the uniform order of commitment, or the regulations accompanying that form, explained the need for the Department to receive an order of revocation of probation or community control and not a duplicative judgment when taking custody of a prisoner in this context, this problem could be quickly eliminated.

Courtesy of David Edelstein

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CLIFF VERITY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D10-2381

Opinion filed February 25, 2011.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Lee County; Thomas S. Reese, Judge.

Cliff Verity, pro se.

ALTENBERND, Judge.

Cliff Verity appeals an order denying his fourteen-ground motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the final order denying all of his claims but write to comment on the circuit court’s use of the appropriate procedures to ensure that the order disposing of Mr. Verity’s motion is a final, appealable order on the merits.

Mr. Verity filed his rule 3.850 motion on January 28, 2010, approximately one month after the mandate issued on his direct appeal. On March 8, 2010, the circuit

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court issued an order denying all claims except ground 11, which asserted that Mr. Verity’s attorney failed to call two potential witnesses for trial. Because this claim was facially insufficient, the court dismissed it pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007), with leave to amend within thirty days of the date of that order. Mr. Verity filed an amended motion within the thirty-day limit, and on April 26, 2010, the circuit court issued a final order denying all claims on the merits.

Mr. Verity is now foreclosed from asserting any of these fourteen grounds in another motion for postconviction relief even if he files his motion on or before December 29, 2011, which marks the expiration of his two-year time limit under rule 3.850(b). If he attempts to do so, his motion should be dismissed as successive pursuant to rule 3.850(f). This might appear to be a premature truncation of Mr. Verity’s right to file rule 3.850 motions, yet this is the intent embodied in the Spera decision:

The goal of the procedures adopted in Spera is not to

provide defendants with the ability to file additional motions pursuant to rule 3.850 that result in more appealable final orders. Indeed, the goal is just the opposite. Instead of

permitting defendants to file multiple motions that are denied or dismissed without reaching the merits, each of which results in a separate appeal, the goal of Spera is to limit

most defendants to a single postconviction proceeding under rule 3.850.

Lawrence v. State, 987 So. 2d 157, 158 (Fla. 2d DCA 2008). Once the defendant has been given the opportunity to amend a facially insufficient claim, the final order on the motion is a disposition on the merits of all claims, even if the defendant’s attempt to amend the claim results in another insufficiently pleaded ground for relief. A disposition on the merits will also follow if the defendant fails to file an amended motion within the allotted time. See id. at 159; see also Kozsegi v. State, 993 So. 2d 133, 134 (Fla. 2d

DCA 2008). If the defendant then chooses to appeal the disposition, the district court will have a final order for review.

Prior to the implementation of the Spera procedures, this court, in reversing the dismissal of a postconviction motion as successive, observed that “[t]he lack of a prior decision on the merits as to a timely claim is crucial: it will generally bar the postconviction court from dismissing a motion as successive.” Crescenzo v. State, 987 So. 2d 150, 151 (Fla. 2d DCA 2008). Similarly, in Frew v. State, 947 So. 2d 1275, 1276 (Fla. 2d DCA 2007), we reversed the circuit court’s order dismissing a successive motion under rule 3.850(f) because there was no suggestion that the defendant abused the postconviction procedure when he attempted to file an amended motion.

We anticipate that in the future, orders of the type we reviewed in Crescenzo and Frew will be few and far between as the circuit courts follow the Spera procedure and render one final, appealable order after the defendant has been offered a sufficient time to amend facially insufficient claims.

Affirmed.

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SILBERMAN and CRENSHAW, JJ., Concur.

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

DAMION HAYES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D10-2362

Opinion filed February 25, 2011.

Appeal pursuant to Fla. R. App. P.

9.141(b)(2) from the Circuit Court for Hillsborough County; D. Michelle Sisco and Susan Sexton, Judges.

William R. Ponall of Kirkconnell, Lindsey, Snure, Yates & Ponall, P.A., Winter Park, for Appellant

PER CURIAM.

Damion Hayes appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of four of his claims, but we reverse and remand for an evidentiary hearing on Hayes’ claim that his trial counsel was ineffective for abandoning the defense of insanity.

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In 2005, a jury convicted Hayes of attempted first-degree murder with a deadly weapon and armed trespass on property. He was sentenced to life in prison.

His conviction and sentence were affirmed on direct appeal. Hayes v. State, 976 So. 2d 1106 (Fla. 2d DCA 2008) (table decision). In 2009, Hayes filed his timely rule 3.850 motion.

In ground one of his motion, Hayes alleged that his counsel was ineffective for abandoning the defense of insanity when counsel was aware that Hayes had a significant history of mental illness and when counsel had originally intended to assert the insanity defense at trial. Hayes acknowledged that counsel was honoring Hayes’ own decision to abandon the defense, but Hayes argued that counsel was unreasonable in doing so.

The postconviction court summarily denied this claim, concluding that it was refuted by the record indicating that it was Hayes’ decision to abandon the defense of insanity. The transcript of the trial indicates that when the trial court questioned Hayes regarding his decision to not testify, the State asked the trial court to address on the record strategic decisions made by Hayes and his counsel. Trial counsel stated that at an earlier court proceeding a week before trial, Hayes chose to forego the insanity defense and to instead plead not guilty. The trial court then addressed Hayes personally, and Hayes confirmed that there was nothing that trial counsel had failed to do that Hayes wished him to do and that Hayes was satisfied with counsel’s services.

We disagree that Hayes’ claim of ineffectiveness is refuted by the record. The record confirms that counsel stated that he was honoring Hayes’ decision to abandon the insanity defense, but the record does not demonstrate that counsel had

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thoroughly discussed the decision to abandon the defense with Hayes before honoring Hayes’ choice. In other words, the record does not demonstrate that counsel’s decision to abandon the insanity defense at the direction of his client was reasonable under the circumstances of this case. Although Hayes was declared competent to proceed, he had previously been declared incompetent. And counsel had filed a notice of intent to pursue the insanity defense and did not abandon the defense until a week before trial. In addition, it appears from the facts of the case that an insanity defense was likely Hayes’ only viable defense. See Cabrera v. State, 766 So. 2d 1131, 1134 (Fla. 2d DCA 2000) (holding that counsel was ineffective for failing to assert an entrapment defense that was legally available and where there was no other viable defense to present).

In Florida v. Nixon, 543 U.S. 175, 178 (2004), the Supreme Court held that “when a defendant, informed by counsel, neither consents nor objects to the course counsel describes as the most promising means to [protect the defendant at trial], counsel is not automatically barred from pursuing that course.” We recognize that, in this case, there is some evidence that Hayes objected to the defense that counsel intended to assert. But in light of Hayes’ history of mental illness, the evidence against him, and his fragile mental state prior to trial, it is not clear that counsel’s decision to honor Hayes’ objection was reasonable. Therefore, the postconviction court erred in summarily denying this claim. Accordingly, we reverse the denial of this claim and remand for the postconviction court to hold an evidentiary hearing to determine whether counsel’s abandonment of the insanity defense was reasonable under the specific facts of this case.

Affirmed in part; reversed in part; and remanded.

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ALTENBERND, KELLY, and MORRIS, JJ., Concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

JANUARY TERM 2011

KENNETH EUGENE REEVES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D08-3943

Opinion filed February 25, 2011

Appeal from the Circuit Court for Orange County,

Julie H. O’Kane, Judge.

James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

Kenneth Reeves, Jasper, Pro Se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, C.J.

The appellant, Kenneth Reeves, was convicted, among other charges, of three counts of armed burglary of a conveyance with explosives or a dangerous weapon, and one count of armed burglary of a structure, each with a special verdict finding that Mr. Reeves was in actual possession of a destructive device in the commission of the

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offense. In addition, Mr. Reeves was convicted of four counts of possession or discharging a destructive device (Counts 8 – 11). The issue before us is whether the convictions for four separate armed burglaries with an explosive device and the four convictions for possession of a destructive device violates double jeopardy. We conclude that in this instance they do.

The verdict forms used at the trial of Mr. Reeves gave no indication of whether the jury found that he had committed a “possession” or a “making” with respect to each destructive device. After considering section 775.021, Florida Statutes (2007), our decision in Stearns v. State, 626 So. 2d 254 (Fla. 5th DCA 1993), approved by, 645 So. 2d 417 (Fla. 1994), and other authorities, we conclude that a conviction for both armed burglary and possession of a destructive device under the facts of the present case violates double jeopardy principles. See Young v. State, 43 So. 3d 876 (Fla. 5th DCA 2010); State v. Reardon, 763 So. 2d 418, 419 n. 3 (Fla. 5th DCA 2000), review dismissed, 806 So. 2d 446 (Fla. 2002). As we are required under the principle of lenity to read the verdicts rendered in the present case in a manner that would give the benefit of the doubt to the defendant, we further conclude that the convictions of possession or discharging of a destructive device described in counts 8 through 11 must be vacated.

Our sister court in the third district summed up the issue that we address in a somewhat similar case. In Torna v. State, 742 So. 2d 366, 367 (Fla. 3d DCA 1999), that court stated:

This verdict form is the crux of the problem here as it contains no indications as to whether the jury found that Torna had committed a “burglary with an assault,” or a “burglary with a battery.” Given Torna’s additional conviction of “battery,” the determination of “with an assault” or “with a battery” was necessary so as to not run afoul of the double

jeopardy issue. Since the determination was not made, and we cannot guess what the jury was thinking, we must conclude that Torna was indeed subjected to double jeopardy by his conviction of both “burglary with an assault and/or battery” and “battery.”

Accordingly, we affirm the judgment and sentence in all respects except with respect to the convictions of counts 8 through 11 which charged Mr. Reeves in each instance with the possession or discharge of a destructive device. We vacate the convictions regarding counts 8 through 11, and remand for resentencing.

AFFIRMED in part, REVERSED in part, and REMANDED.

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EVANDER and JACOBUS, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

JANUARY TERM 2011

STATE OF FLORIDA,

Appellant,

v.

ROGER JEROME JACKSON,

Appellee.

CASE NO. 5D09-4382

Opinion filed February 25, 2011

Appeal from the Circuit Court for Volusia County,

Joseph G. Will, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellee.

PER CURIAM.

The State appeals from a downward departure sentence imposed on Roger Jerome Jackson for the third degree felony charge of possession of cocaine. Jackson’s criminal punishment code scoresheet indicated a lowest permissible sentence of 28.95 months in prison. If a “trial court wishes to depart downwardly from the indicated guidelines sentence, it must announce or write its valid reasons for doing so.” State v.

Marshall, 869 So. 2d 754, 756 (Fla. 5th DCA 2004); see also, § 921.0026(1), Fla. Stat (2010) (“A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure”).

At sentencing, the trial judge did not give any reason for the departure sentence but indicated that he would later supply a written order justifying it. When the judge later failed to supply any written departure reasons, the State appealed. Jackson properly concedes error. Because the trial court had already promised Jackson a departure sentence prior to Jackson’s entry of a plea in this case, Jackson should be given an option of withdrawing his plea if the court now concludes that no valid basis for departure exists. See Marshall. Accordingly, we reverse and remand with directions that the trial court either justify any departure sentence with valid reasons for departure, or give Jackson an opportunity to withdraw his plea prior to imposition of a guidelines sentence. Id.

REVERSED AND REMANDED WITH DIRECTIONS.

2

LAWSON, EVANDER and COHEN, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

JANUARY TERM 2011

DAVID HARRICHARAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 5D10-102

Opinion filed February 25, 2011

3.850 Appeal from the Circuit Court for Seminole County,

Debra S. Nelson, Judge.

Richard C. Klugh, of Richard C. Klugh, PLLC, and Mark Seiden, of Law Offices of Mark Seiden, P.A., Miami, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

David Harricharan appeals an order denying his postconviction motion after an evidentiary hearing. We affirm as to all issues and write only to address Harricharan’s argument that the case should be remanded so that he can amend his postconviction motion to include a claim of fundamental error based upon State v. Montgomery, 39 So. 3d 252 (Fla. 2010) (holding that the standard manslaughter by act jury instruction’s second element — that the defendant “intentionally caused the death of (victim)” –

erroneously required the jury to find proof that the defendant intended to kill the victim in order to find him guilty of that crime).

With respect to this claim, we conclude that Montgomery does not apply to cases such as Harricharan’s, which were final before Montgomery was decided. See, e.g., Reed v. State, 837 So. 2d 366, 370 (Fla. 2002) (finding fundamental error in giving of standard jury instruction for aggravated child abuse, but applying holding only to “cases pending on direct review or not yet final.”); Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992) (“[W]e hold that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final . . . . To benefit from the change in law, the defendant must have timely objected at trial if an objection was required to preserve the issue for appellate review.”) (citations omitted); see also, Rozelle v. State, 29 So. 3d 1141 (Fla. 1st DCA 2009) (holding that First District’s decision in Montgomery v. State, 35 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009), which was approved in the Supreme Court’s Montgomery opinion, did not apply retroactively to cases that were final before the decision was issued).

AFFIRMED.

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GRIFFIN, SAWAYA, and LAWSON, JJ., concur.

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