Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2011

WILLIAM T. SELF,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 5D10-2813

Opinion filed February 25, 2011

Petition for Writ of Prohibition,

Roger J. McDonald, Respondent Judge.

Robert Wesley, Public Defender and Michelle Yard, Assistant Public Defender, Orlando, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

William T. Self petitioned this Court for a writ of prohibition to prevent his criminal prosecution in Orange County Circuit Court based on a violation of the speedy trial rule. We granted the petition on October 13, 2010, and ordered the court to discharge Self in case no. 2010-CF-000532-0, with this opinion to follow.

Self was arrested on January 13, 2010, for failure to register as a sex offender. On May 26, 2010, the State filed a notice of its intent to rely on business records at trial. A month later, Self filed an objection to the use of those records, relying on Crawford v.

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Washington, 541 U.S. 36 (2004), which held that testimonial hearsay is inadmissible at trial unless the declarant is unavailable and the defendant had a prior meaningful opportunity to cross-examine the declarant. The case was called up for pre-trial conference and trial was scheduled during the week of July 19, 2010, but no mention was made at that time of Self’s Crawford objection.

On July 20, 2010, when the case was called for trial, the State informed the trial court of Self’s Crawford objection to the use of the business records. The State advised the court that it had not subpoenaed the record custodians and needed more time to do so. After a lengthy discussion concerning the admissibility of the business records, the State requested a pre-trial hearing on that issue. The court continued the trial, charging the continuance to Self based on his continued Crawford objection to the use of the business records.

Two days later, on July 22, 2010, Self filed a notice of expiration of speedy trial.1 The State scheduled a hearing on Self’s business records objection, presumably to allow the trial to commence before August 5, 2010, the last day of the recapture period. While a hearing was held as scheduled on August 5, 2010, it was held before a substitute judge. At that hearing, the State indicated that it was prepared to start the trial that same day due to the recapture deadline, but asked the court to first address the issue regarding the admissibility of the business records. The substitute judge declined to rule on any issue. No further arguments were made and no ruling issued from that hearing. The State did not request an extension of the speedy trial period (and likely would not have been entitled to one) and there was no indication that any

1 The last day of the speedy trial period was July 7, 2010.

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further action was taken with regard to the matter until August 9, 2010, when Self filed a motion for discharge. On August 11, 2010, the trial judge denied that motion, again determining that Self had waived speedy trial based on the earlier continuance that was attributed to him. The court also denied Self’s Crawford objection to use of the business records and set the trial for the two-week period beginning on November 1, 2010.

Self then petitioned this Court for a writ of prohibition on speedy trial grounds, claiming that he did not waive speedy trial; that the continuance was improperly charged to him; and that the State had failed to bring him to trial within 175 days from the date of arrest, or within the 15-day recapture period. In its response, the State asserted that Self waived speedy trial by filing an objection to the use of business records, which required a pre-trial hearing.

Prohibition is an appropriate remedy where there has been an improper denial of the right to speedy trial. Fla. R. App. P. 9.100(a); Lowe v. Price, 437 So. 2d 142, 143 (Fla. 1983). To determine whether Self was entitled to relief, this Court is required to determine whether the trial court properly attributed the continuance of the trial to Self, thereby waiving speedy trial. If the continuance was not properly attributed to Self, then this Court must determine whether the State’s attempt to commence trial before the end of the recapture period was sufficient to defeat Self’s right to discharge.

We agree with Self that the trial court improperly determined that he waived speedy trial solely by objecting to the admissibility of the business record evidence. The trial court continued the trial based on the fact that the State was not prepared for a hearing on Self’s Crawford objection to the business records. Self raised this objection well before the scheduled trial, and, at that point, it was the State’s burden, as the

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proponent of the evidence, to prove its admissibility. See State v. Caulfield, 722 N.W. 2d 304, 308 (Minn. 2006); De La Paz v. State, 273 S.W. 3d 671, 680 (Tex. Crim. App. 2008). See also Barber v. Page, 390 U.S. 719, 724-25 (1968). We find that the State did not meet its burden, having waited more than 175 days after Self’s arrest to acknowledge that an objection was lodged, and then requested a continuance when it was unprepared to prove admissibility. As such, the continuance was actually attributable to the State, not the defense, and speedy trial was not waived at that time.

In the alternative, the State argues that even if this Court determined that Self did not waive speedy trial, its “attempt” to schedule the trial before the recapture deadline supported the court’s denial of the discharge. Florida Rule of Criminal Procedure 3.191(i)(2) provides:

(i) When Time May be Extended. The periods of time established by this rule may be extended provided the period of time sought to be extended has not expired at the time the extension was procured. Such an extension may be procured by:

. . . .

(2) written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined in the subdivision (l)[.]

Critical to its position, the State did not allege, nor did it point to any evidence to demonstrate, that it sought an extension during the recapture period or that exceptional circumstances existed to warrant an extension beyond the recapture period to further delay an already dilatory trial.2 See Brown v. State, 715 So. 2d 241 (Fla. 1998).

2 Under rule 3.191(l), the court may order an extension of the speedy trial time period when exceptional circumstances are shown, which generally do not include congestion of the court’s docket, lack of diligent preparation, failure to obtain available

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Because we conclude that Self did not waive his right to a speedy trial, he is entitled to discharge.

PETITION GRANTED.

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

witnesses, or other avoidable or forseeable delays. Instead, “[e]xceptional

circumstances are those that as a matter of substantial justice to the accused or the state or both require an order by the court.” Fla. R. Crim. P. 3.191(l).

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

J.M., a child,

Petitioner,

v.

FRANK GARGETT, in his official capacity as Superintendant of the Manatee County Regional Juvenile Detention Center,

Respondent.

Case No. 2D10-5420

Opinion filed February 23, 2011.

Petition for Writ of Habeas Corpus to the Circuit Court for Manatee County; Scott M. Brownell, Judge.

Larry L. Eger, Public Defender, and Gino Lombardi, Assistant Public Defender, Bradenton, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Respondent.

CRENSHAW, Judge.

J.M. filed a petition for writ of habeas corpus contending that his consecutive placements in secure detention for two separate violations of a juvenile

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probation order that were adjudicated in a single hearing are not authorized pursuant to section 985.037(2), Florida Statutes (2010). This claim is cognizable in a habeas proceeding. See S.P. v. State, 985 So. 2d 651 (Fla. 5th DCA 2008). We denied the petition by order, and this opinion follows. In denying the petition, we certify conflict with M.P. v. State, 988 So. 2d 1266 (Fla. 5th DCA 2008).

J.M. was placed on juvenile probation on October 13, 2010. On October 25, 2010, the circuit court filed the first, second, and third orders to show cause. In the first, J.M. was ordered to show cause why he should not be held in indirect criminal contempt for failing to follow the order of probation by violating curfew on October 15, 2010. The second order was directed to an October 16, 2010, violation of curfew, and the third was directed to an October 16, 2010, failure to obey household rules. At a November 8, 2010, hearing, J.M. pleaded guilty to all three charges. On that same date, the circuit court placed J.M. in secure detention for five days for the first offense of indirect criminal contempt. However, on November 10 the circuit court placed J.M. in fifteen days’ secure detention for the second offense. The second period of secure detention was not to commence until the first period had expired.

Section 985.037, governs direct and indirect contempt of court in juvenile justice cases. Subsections (1) and (2) read as follows:

(1) CONTEMPT OF COURT; LEGISLATIVE INTENT.— The court may punish any child for contempt for interfering with the court or with court administration, or for violating any provision of this chapter or order of the court relative thereto. It is the intent of the Legislature that the court restrict and limit the use of contempt powers with respect to commitment of a child to a secure facility. A child who commits direct contempt of court or indirect contempt of a valid court order may be taken into custody and ordered to serve an

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alternative sanction or placed in a secure facility, as authorized in this section, by order of the court.

(2) PLACEMENT IN A SECURE FACILITY.—A child may

be placed in a secure facility for purposes of punishment for contempt of court if alternative sanctions are unavailable or inappropriate, or if the child has already been ordered to serve an

alternative sanction but failed to comply with the sanction. A delinquent child who has been held in direct or indirect contempt may be placed in a secure detention facility not to exceed 5 days

for a first offense and not to exceed 15 days for a second or subsequent offense.

J.M. contends, pursuant to the Fifth District’s decisions in M.P. and J.D. v. State, 954 So. 2d 93 (Fla. 5th DCA 2007), that section 985.037(2) allows the circuit court only to impose a single placement in secure detention when a juvenile simultaneously pleads guilty to more than one count of indirect criminal contempt based on serial violations of a probation order. The Fifth District in M.P. relied on its holding in J.D. The facts of M.P. are almost identical to the facts in the present case. M.P. was charged with two counts of indirect criminal contempt which were based on violations of a probation order. 988 So. 2d at 1266. M.P. did not dispute the violations, but contended that section 985.037(2) only authorized the imposition of a single five-day placement in secure detention. Id. at 1266-67. The circuit court, however, imposed five days’ secure detention with three days suspended followed by a consecutive term of fifteen days’ secure detention, all of which was suspended. Id. at 1266. The Fifth District reversed and remanded for correction of sentence holding that, pursuant to the statute, the circuit court could impose only a single term of five days’ secure detention. Id. at 1266-67. The court concluded that “[i]n the event that M.P. was restored to probation after her release from secure detention, any future violation would be

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considered a ‘second or subsequent offense’ and could subject her to a fifteen-day placement in secure detention.” Id. at 1267.

In reaching its decision, the M.P. court stated:

In J.D., we held that consecutive placements in secure detention for multiple violations of a single behavior order violated the statutory limitations set forth in section 985.037(2). J.D. made clear that multiple violations of a single order are treated differently than “multiple probation

violations” as that term was defined in Williams v. State, 594 So. 2d 273, 274 n.3 (Fla. 1992). In Williams, the supreme court defined “multiple probation violations” as “successive violations which follow the reinstatement or modification of

probation rather than the violation of several conditions of a single probation order.” Id. That is not the situation here. In this case, we deal with several violations of a single probation order and not “multiple probation violations.” In the former situation, consecutive placements are not permitted for a first offense, while in the latter, such placements are authorized.

Id.

We disagree with the reasoning of the Fifth District in M.P. We agree with the reasoning of the First District in K.Q.S. v. State, 975 So. 2d 536 (Fla. 1st DCA 2008), wherein the court stated:

Although section 985.037 limits a sentence for a second or subsequent offense to fifteen days, nothing in the statute states that multiple instances of direct contempt cannot be separately punished with consecutive sentences of fifteen days of confinement for each offense. In fact, the statute specifically states that a sentence of fifteen days may be

imposed for a “second or subsequent” offense. We find that the plain meaning of the statute allows a trial court to impose a sentence of 15 days for each instance of contempt, consecutively if it so wishes.

Id. at 538. K.Q.S. was convicted of six counts of direct criminal contempt that were committed in the course of a profane tirade directed at the circuit court. However,

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section 985.037 does not distinguish between direct and indirect criminal contempt in regard to the punishment that the circuit court may impose, and we conclude that the First District’s analysis applies in the present case.

The Fifth District in M.P. analogized the violations of juvenile probation in that case to a revocation of probation proceeding in a criminal case. However, the proceeding in an alleged violation of criminal probation is generally initiated by the filing of an affidavit of violation of probation. See § 948.06(1)(d), Fla. Stat. (2010). It is not initiated by the filing of an order to show cause why the defendant should not be held in indirect criminal contempt. We do not agree with the Fifth District that the law regarding violations of criminal probation governs in this instance. Instead, we look to the law on indirect criminal contempt. We note that a trial court may, in a single proceeding, adjudicate a defendant guilty of multiple instances of indirect criminal contempt and may thereafter impose consecutive sentences for each conviction. See, e.g., Attwood v. State, 687 So. 2d 271, 272 (Fla. 4th DCA 1997). We see nothing in section 985.037(2) that prohibits the circuit court from doing so in the present case. Accordingly, we deny the petition and certify conflict with the Fifth District’s opinion in M.P.

Petition denied.

KELLY and VILLANTI, JJ., Concur.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

JULIO CRUZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-3595

[ February 23, 2011 ]

PER CURIAM.

In September 2009, Julio Cruz (Defendant) filed an emergency petition for writ of prohibition with this court, seeking to prohibit the Broward County circuit court from proceeding to trial until the Florida Supreme Court determines the proper procedure for deciding immunity from prosecution pursuant to section 776.032, Florida Statutes (2009) (the “Stand Your Ground” law, enacted by chapter 2005-27, section 5, at 202, Laws of Florida). We grant the petition.

Defendant, who was charged with aggravated assault with a deadly weapon, filed a motion to dismiss based on a claim of immunity under the statute. The state’s traverse denied defendant’s allegations, and, without holding an evidentiary hearing, the trial court denied the motion, relying on our decision in Velasquez v. State, 9 So. 3d 22 (Fla. 4th DCA 2009) (explaining that trial court had properly denied a similar motion because, under Rule 3.190(c)(4), a motion to dismiss has to be denied when the facts are in dispute).

In Velasquez, we certified conflict with Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008), which set forth the following procedure for such motions:

We now hold that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist. Here, the trial court did what was required.

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Petitioner is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim b y a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. As noted by the trial court, courts have imposed a similar burden for motions challenging the voluntariness of a confession. See, e.g., McDole v. State, 283 So. 2d 553, 554 (Fla. 1973). We reject any suggestion that the procedure established by rule 3.190(c) should control so as to require denial of a motion whenever a material issue of fact appears.

Peterson, 983 So. 2d at 29-30.

We held defendant’s petition in abeyance pending the supreme court’s resolution of the issue, which was presented on review of Dennis v. State, 17 So. 3d 305 (Fla. 4th DCA 2009) (affirming conviction on direct appeal), reh’g denied, 17 So. 3d 310 (Fla. 4th DCA 2009) (certifying conflict). In Dennis, we stated, “We find no error in the trial court’s decision to deny the motion to dismiss. As we recognized in Velasquez v. State, 9 So. 3d 22 (Fla. 4th DCA 2009), a motion to dismiss based on statutory immunity is properly denied when there are disputed issues of material fact.” 17 So. 3d at 306.

The supreme court recently resolved the conflict, rejecting our position in Dennis and approving that of the first district in Peterson. Dennis v. State, 35 Fla. L. Weekly S731, 2010 WL 5110231 (Fla. Dec. 16,

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2010). Accordingly, we grant the petition and direct the trial court to follow the procedure set forth in Peterson and approved in Dennis.

Petition Granted.

POLEN, TAYLOR and LEVINE, JJ., concur.

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Petition for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case No. 08-23406CF10A.

Michael Minardi of Michael Minardi, P.A., Stuart, 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.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

ALAIN CUPAS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-1277

[February 23, 2011]

PER CURIAM.

Alain Cupas was tried by jury and convicted of three counts of lewd and lascivious molestation of a child. Cupas seeks reversal of his convictions, challenging the admission of collateral crimes evidence (point I), the exclusion of evidence concerning the victim’s suspension from school and the incremental punishment of the school’s disciplinary system (point II), and the giving of a curative jury instruction (point III). We affirm as to points I and III without further comment. As for point II, we find no abuse of discretion in the trial court’s ruling that any probative value in evidence concerning the victim’s prior suspension from school and the incremental punishment of the school’s disciplinary system was substantially outweighed by the danger of unfair prejudice and thus affirm as to this ground as well.

Affirmed.

WARNER, STEVENSON and GERBER, JJ., concur.

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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan Lebow, Judge; L.T. Case No. 07-4330 CF10A.

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

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Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F.

Medley, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

DAVID J. BROOKS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-3756

[February 23, 2011]

POLEN, J.

The pro se appellant challenges the assessment of victim injury points for sexual contact. We affirm.

In February of 2005, appellant pleaded no contest to attempted sexual battery on a child under age twelve by a perpetrator eighteen years of age or older, and to lewd or lascivious molestation (offender over eighteen, victim under twelve). Appellant agreed to the State’s factual basis for the plea, which follows:

[B]etween the dates of September 1, 1998, and September 30, 1999, in St. Lucie County, Florida, the defendant did actually commit oral sex upon the victim in this case, his biological daughter, who was under the age of 12 and that she performed oral sex upon him during that timeframe. For the purpose of the plea, it – it is to an attempted even though it was a completion, a complete act. As to Count II, between the same dates, . . . the State would present evidence that during that timeframe the defendant did intentionally have the victim, his biological daughter under the age of 12 years old, [A.B.], perform masturbation upon him.

(Emphasis added.) The trial court concluded that a factual basis existed, that appellant’s plea was freely and voluntarily entered and that appellant had made a knowing and voluntary waiver of his rights. The trial court adjudicated appellant guilty and sentenced him to twenty-one

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years in prison, to be followed by fifteen years of sex offender probation. Appellant did not file a direct appeal.

On December 28, 2007, appellant filed a petition for writ of habeas corpus, alleging he was improperly sentenced pursuant to the Criminal Punishment Code because the CPC became effective one month after the beginning date of appellant’s alleged conduct. The State agreed that appellant should be resentenced on both counts pursuant to the sentencing guidelines.

At the resentencing, appellant’s counsel objected to the inclusion of forty points for sexual contact with regard to appellant’s conviction on Count I, the attempted sexual battery. However, defense counsel stated there was no objection to the inclusion of forty points for the sexual contact alleged for Count II. Th e trial court overruled appellant’s objection and sentenced him to 17.9 years in prison, followed by fifteen years of sex offender probation.

Thereafter, appellant filed a pro se motion to correct sentencing error pursuant to rule 3.800(b)(2), which the trial court denied.

Presently, appellant argues that the assessment of victim injury points for sexual contact on both counts was improper. As noted by the State, however, appellant failed to preserve his claim with respect to Count II, where he conceded at resentencing that the points were properly added on this count.

Even if appellant’s claim with regard to Count II were properly preserved, his claim that the inclusion of any victim injury points on his scoresheet was improper is without merit. The State’s factual basis, which defense counsel stipulated to, clearly alleges that appellant had sexual contact with the victim — specifically, that appellant, during the dates in question, “did actually commit oral sex upon the victim in this case, . . . and that she performed oral sex upon him during that timeframe,” and that “the defendant did intentionally have the victim . . . perform masturbation upon him.” Thus, the trial court did not err in imposing forty victim injury points for sexual contact for each count. Our supreme court has held that victim injury points for sexual contact are not limited “to instances where there was a union of the sexual organ of one person with the oral, anal, or vaginal opening of another.” Seagrave v. State, 802 So. 2d 281, 291 (Fla. 2001); see also, e.g., Beasley v. State, 503 So. 2d 1347, 1349 (Fla. 5th DCA 1987) (trial court properly scored victim injury for lewd and lascivious assault count upon a child where defendant opened victim’s legs and started to pull down her

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bathing suit and shorts); Mackey v. State, 516 So. 2d 330, 330 (Fla. 1st DCA 1987) (points properly assessed for sexual contact where defendant “touch[ed] the victim about the crotch”).

Affirmed.

WARNER and STEVENSON, JJ., concur.

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Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562004CF001966A.

David J. Brooks, Mayo, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

FRANKLIN MONFISTON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-5232

[February 23, 2011]

PER CURIAM.

Appellant Franklin Monfiston challenges the circuit court’s order denying his motion for postconviction relief as untimely filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant’s motion was filed within two years of the date that the Supreme Court of Florida disposed of his petition for review of this court’s decision on direct appeal. As such, his motion was timely filed. See Ortiz v. State, 4 So. 3d 794 (Fla. 4th DCA 2009); Witt v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004); Perkins v. State, 845 So. 2d 273 (Fla. 2d DCA 2003); Cargle v. State, 800 So. 2d 698 (Fla. 1st DCA 2001).

Accordingly, we reverse and remand for the circuit court to entertain appellant’s motion for postconviction relief.

Reversed and Remanded.

STEVENSON, MAY and DAMOORGIAN, 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; Martin J. Bidwill, Judge; L.T. Case No. 02-10982 CF10B.

Franklin Monfiston, Live Oak, pro se.

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Surber, Assistant Attorney General, West Palm Beach, for appellee. Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

EMANUEL L. O’NEAL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-167

[February 23, 2011]

PER CURIAM.

Emanuel L. O’Neal (Defendant) appeals an order summarily denying his rule 3.850 motion for post-conviction relief. We reverse in part.

Following a jury trial, Defendant was found guilty as charged of burglary of a dwelling and grand theft. The point of entry into the burglarized house, which the police officer, who was dispatched to respond to the victim’s burglar alarm, viewed from a neighbor’s backyard, was a broken window on the southwest side of the victim’s house. At trial, defense counsel did not present evidence but argued that the alleged victim, Defendant’s first cousin, had a grudge against him.

Of the ten claims of ineffective assistance which Defendant raised in the instant motion, this court issued an order to show cause limited to the eighth one, in which he claimed that his defense counsel was ineffective for failing to investigate and take photographs of the point of entry to show that Defendant was physically too large to come through the window. He noted that at the time of his arrest, he was 6’ 2” in height, weighed 265 pounds, and had a 50-inch waist; he had told counsel many times that there was no way he could have squeezed through the 10” window. He attached as exhibit A to his motion two photographs of the three-part window, with notations indicating the entire window was 37 1/2 by 33 3/4 inches and each pane was 10 by 34 inches. Had counsel presented such photographs to the jury, he maintained, they would have agreed that only a skinny person could have entered the victim’s home through that little window.

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The State pointed out in its response below, and in its response filed in this court, that counsel elicited testimony from the victim about the physical characteristics of the window and argued at closing that whoever entered that way would have left blood or hair samples behind, but none were in evidence. It attached a trial transcript which reflects that the victim testified he was sure Defendant got in through a window, the kind with a crank that rolls in and out, with three panels that roll in and out together. One of those three was broken; the glass was shattered and the framework “bent all up.” Defense counsel argued that it was not reasonable for someone, within three to five minutes, to break a window, climb through, and not to leave any blood, hair, clothing, or DNA.

This kind of argument was not the same as arguing, with evidence, that the Defendant could not fit through the space in question. As overwhelming as the State’s evidence appears to be, if the jury had accepted Defendant’s position that the victim had a grudge against him, the evidence also could have been explained as a set-up by the alleged victim. Even the tape-recorded voice messages coming from Defendant’s phone were incriminating only when the victim explained what he heard Defendant saying in them; on the trial transcript, the messages were entirely inaudible.

The State acknowledges that ordinarily an evidentiary hearing is necessary to resolve the question of whether an act or omission claimed to be deficient was a reasonable tactical strategy. E.g., Button v. State, 941 So. 2d 531, 533 (Fla. 4th DCA 2006) (“A trial court cannot deny a motion for post-conviction relief b y finding that defense counsel’s decision was tactical or trial strategy without first holding an evidentiary hearing.”). Nevertheless, the State argues that failure to present evidence of the size of the window was part of defense counsel’s strategy, because he used it to attack the State’s lack of evidence, and asserts that the fact that it was defense counsel trial strategy is evident from the face of the record. We disagree.

Accordingly, the summary denial is reversed in part and remanded for an evidentiary hearing, as to the eighth ground for relief. With regard to the remaining claims, we affirm without discussion.

Affirmed in part, Reversed in part, and Remanded. GROSS, C.J., WARNER and POLEN, 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; Paul L. Backman, Judge; L.T. Case No. 04-19852 CF10A.

Emanuel L. O’Neal, Milton, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

THOMAS FLETCHER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-588

[February 23, 2011]

PER CURIAM.

Thomas Fletcher (Defendant) appeals an order summarily denying his rule 3.850 motion for postconviction relief as untimely and successive, though it was based on newly discovered evidence. We reverse.

Following a jury trial in January 1995, Defendant was found guilty as charged of first degree murder and armed robbery, alleged to have occurred on July 3, 1994. The victim was Defendant’s alleged drug dealer. The defense was voluntary intoxication,1 but the only witness the defense presented at trial to support that defense was a substance abuse expert, who testified about cocaine intoxication and theorized as to Defendant’s state of mind and condition at the time of the murder to negate his specific intent to commit first degree murder and armed robbery. Defendant was found guilty as charged and was sentenced to life in prison for the murder and a concurrent term of years for the robbery.

In his timely rule 3.850 motion, Defendant claimed his defense counsel was ineffective for failing to call an individual named Jerry Rigsby, a friend to both Defendant and the victim, as a witness on Defendant’s behalf. Defendant alleged that counsel had his private investigator talk with Rigsby prior to trial, obtaining a statement that would support the defense. Rigsby would corroborate the fact that

1 Voluntary intoxication was a recognized defense at the time. See § 775.051, Fla. Stat. (2010) (abolishing voluntary intoxication defense effective Oct. 1, 1999); Ch. 99-174, §§ 1-2, at 968, Laws of Fla.

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Defendant had been a long-time substance abuser, h e had seen Defendant’s behavior while intoxicated, and he could support Defendant’s having been intoxicated on the date of the murder. Counsel did not advise Defendant why he did not call Rigsby. Defendant alleged that the result of his trial would have been different if Rigsby had testified. The trial court summarily denied this ground, explaining in its order that Defendant had made no showing that Rigsby would have been available to offer admissible testimony.

In 2009, Defendant filed another, apparently untimely, motion for postconviction relief, relying on subdivision 3.850(b)(1) (providing an exception to the two-year time limit when movant alleges “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence”).

The newly discovered evidence was presented in the form of an “affidavit” by Rigsby, a copy of which Defendant attached as exhibit A to his motion. Rigsby stated he tried to contact Defendant several times on July 3, 1994, to get together for July 4, and when he got no answer, he went to the victim’s home, where he saw Defendant by the pool just hours before the killing; Defendant looked “out of it,” appeared tranquilized, was speaking gibberish, and did not seem to recognize Rigsby. A few days after the incident, the victim’s long-time personal attorney told Rigsby about the homicide; Rigsby did not believe it and visited Defendant in jail. Defendant told Rigsby he was pleading not guilty and would be in touch when he had a court date. Rigsby did not hear from Defendant for a while and then the victim’s attorney told him that Defendant had pleaded no contest to avoid the death penalty, receiving life without parole. In April 1995, Rigsby moved to England and lost contact with Defendant—until October 2008, when he received a message on MySpace from a friend of Defendant’s who told him Defendant was trying to get in touch with him.

Defendant then wrote Rigsby a letter telling him he thought Rigsby had abandoned him when Defendant needed him as a witness during his trial. Defendant’s lawyer sent someone to his apartment to get a statement, but he apparently had moved—but this was before Defendant’s court date, which was in January 1995, and Rigsby stated in his affidavit that no one had ever come by to see him on Defendant’s behalf. Had he known of Defendant’s court date, he would have been there, but no lawyer came or called or left a message or sent anyone.

The “affidavit” was dated January 14, 2009. Below Rigsby’s signature

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was that of a solicitor who confirmed that Rigsby had signed the statement in the solicitor’s presence, with a stamp indicating the solicitor was “authorised” to administer oaths, but nothing on the page indicated that an oath had been administered to Rigsby.

Based on the contents of Rigsby’s “affidavit,” Defendant concluded that his defense counsel and the victim’s attorney had conspired to deprive him of the sole witness who could testify to his state of intoxication prior to the offense, lying to him and to Rigsby to prevent Rigsby from testifying. Prior to trial, he had given Rigsby’s name and address to his attorney, to substantiate that he was intoxicated before the events that took place at the victim’s condominium. Counsel had told Defendant that his investigator had gotten from Rigsby exactly the kind of statement that was needed for his defense, and that without Rigsby’s independent testimony to corroborate his claim, the defense of voluntary intoxication would not succeed. However, a couple of weeks later, counsel asked Defendant if Rigsby still lived at the same address, and on the next visit, counsel told Defendant that Rigsby no longer lived at that address and could not be located.

Immediately thereafter, Defendant phoned the victim’s attorney to ask him if he knew where Rigsby was. That attorney told Defendant Rigsby wanted no part of him or his trial and had moved to England. He advised Defendant not to expect Rigsby to show up at his trial. These conversations occurred between August and October 1994.

Defendant pointed out that Rigsby’s statement that no one had contacted him on Defendant’s behalf contradicted defense counsel’s representation that his investigator initially did contact Rigsby and got a statement from him. Moreover, counsel’s representation that Rigsby had moved was contradicted by Rigsby’s statement that he did not move to England until April 1995, after Defendant’s trial. Finally, the victim’s attorney’s representation that Rigsby wanted nothing to do with him was contradicted by Rigsby’s statement, including that he was told by the victim’s attorney that Defendant had pleaded no contest in order to get a life sentence. Thus, Defendant concluded that the two attorneys had perpetrated a fraud on the court and a miscarriage of justice.

Defendant argued that the contents of Rigsby’s affidavit constituted newly discovered evidence because there was no way Defendant could have known of the fraud of his attorney and the victim’s attorney in keeping Rigsby from testifying at his trial, and, but for the assistance of his friend, Defendant still would not know what they had done to keep Rigsby from testifying for him. Rigsby’s statement was not known to

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Defendant or the trial court at the time of the trial, and due to his counsel’s being a party to the fraud, his knowledge could not be counted against Defendant when determining whether the information was newly discovered; Defendant had used the utmost diligence to discover it. Second, Rigsby’s testimony probably would have produced an acquittal of the first degree murder charge so that Defendant probably would have been convicted of a lesser offense and would have received a guidelines sentence, not life in prison.

The state argued below that the motion was untimely because there was no showing why the instant claims could not have been presented in a timely fashion. Because the claim of ineffective assistance of counsel for failing to call Rigsby already had been raised in the prior motion, it also argued that this claim was successive. Finally, in a footnote, the state suggested that if the trial court disagreed, it could dismiss the petition without prejudice because Rigsby’s “affidavit” was not under oath. The trial court did not act on this suggestion, but summarily denied the motion. The state maintains the same position in this court, and also argues that Spera v. State, 971 So. 2d 754, 755 (Fla. 2007), does not apply to untimely successive motions.

However, as the state does acknowledge, this court has applied Spera to insufficient claims of newly discovered evidence. E.g., Slade v. State, 10 So. 3d 1205 (Fla. 4th DCA 2009).

Had Rigsby’s “affidavit” been properly sworn, then an evidentiary hearing might have been required to determine whether to set aside Defendant’s conviction on the basis of newly discovered evidence, see Jones v. State, 709 So. 2d 512, 521 (Fla. 1998),2 unless Rigsby’s allegations were conclusively refuted by the record, or it could be

2 In that opinion, the standard was expressed as follows:

First, in order to be considered newly discovered, the evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.” Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla.1994).

Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Jones, 591 So.2d at 911, 915. To reach this conclusion the trial court is required to “consider all newly discovered evidence which would be admissible” at trial and then evaluate the “weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id. at 916.

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determined, from the face of the sworn allegations, that they are inherently incredible. McLin v. State, 827 So. 2d 948 (Fla. 2002).

Because Rigsby’s “affidavit” does not contain a proper oath, on remand the trial court should strike the motion with leave to refile the motion with a properly sworn affidavit, within a reasonable time period, pursuant to Spera. Compare Moss v. State, 943 So. 2d 946 (Fla. 4th DCA 2006) and Hall v. State, 11 So. 3d 1002 (Fla. 4th DCA 2009)

Reversed and Remanded.

GROSS, C.J., DAMOORGIAN and LEVINE, JJ., concur.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia G. Imperato, Judge; L.T. Case No. 94-11349 CF10A.

Thomas Fletcher, Chipley, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

TYRONE LEE CARTER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

___________________________________

Case No. 2D08-2479

Opinion filed February 23, 2011.

Appeal from the Circuit Court for Lee County; Edward J. Volz, Jr., Judge.

James Marion Moorman, Public Defender, and Bruce G. Howie, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

CRENSHAW, Judge.

Tyrone Lee Carter appeals his judgments and sentences for second-degree murder with a firearm and two counts of attempted first-degree murder. Because we find the jury instruction for manslaughter by act, as a lesser included offense of second-degree murder, constituted fundamental error, we reverse Carter’s

Carter was charged with the second-degree murder of Carlis Callahan. The State alleged that on June 5, 2005, Carter entered Callahan’s residence and opened fire with an AK-47 rifle. The trial court gave the following standard jury instruction on manslaughter by act, as a lesser included offense of second-degree murder:

To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt:

(Emphasis added.)¹

Carter argues that the trial court fundamentally erred by instructing the jury that intent to kill is an element of manslaughter. We agree and conclude based on the facts of this case and the holding in State v. Montgomery, 39 So. 3d 252 (Fla. 2010), that Carter was “entitled to an accurate instruction on the lesser included offense of manslaughter.” Id. at 258.²

²Here the jury was not given the option of finding manslaughter by culpable negligence. See Barros-Dias v. State, 41 So. 3d 370 (Fla. 2d DCA 2010) (concluding when the jury was given the option of finding manslaughter by culpable negligence the instruction on manslaughter did not constitute fundamental error even though it erroneously treated intent to kill as an element of the offense).

Accordingly, we reverse Carter’s second-degree murder conviction and remand for a new trial as to that count. We affirm Carter’s remaining judgments and sentences.

Affirmed in part, reversed in part, and remanded.

Courtesy of David Edelstein

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Courtesy of David Edelstein

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