Florida Criminal Law Opinions

Supreme Court of Florida

____________

No. SC09-2225

____________

MICHAEL HERNANDEZ,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[February 17, 2011]

QUINCE, J.

We have for review Hernandez v. State, 34 Fla. L. Weekly D2269 (Fla. 3d DCA Nov. 4, 2009), in which the Third District Court of Appeal denied an appellant’s motion to transfer his appeal to another district court, but certified that its decision was in conflict with Cole v. State, 280 So. 2d 44 (Fla. 4th DCA 1973), and Stanek-Cousins v. State, 896 So. 2d 865 (Fla. 5th DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth in this opinion, we approve Hernandez.

FACTS AND PROCEDURAL HISTORY

This case arises out of the murder trial of petitioner Michael Hernandez. In February 2004, Hernandez was indicted for first-degree murder and attempted

first-degree murder in the Eleventh Judicial Circuit in Miami-Dade County.

According to the State’s allegations, Hernandez—a fourteen-year-old middle school student at the time of the offenses—murdered a classmate one morning before school using a knife that he had concealed in his backpack. The State alleged that Hernandez had also attempted to kill a different classmate in the same manner the previous day.

Shortly before Hernandez’s trial was scheduled to begin, Judge John Schlesinger of the Eleventh Judicial Circuit granted the defense’s motion for a change of venue, transferring the case to the Ninth Judicial Circuit in Orange County. The court’s order explained that coverage of the case in print, radio, and televised media had been pervasive and that the exposure had impeded efforts to select a jury in Miami-Dade County.

The trial was held in Orlando in September 2008, with Judge Schlesinger presiding.1 The case was tried on behalf of the State by the State Attorney for the Eleventh Judicial Circuit, while Hernandez was represented by private counsel. The jury found Hernandez guilty of both charged offenses. The next day, Judge Schlesinger entered an order transferring venue back to the Eleventh Judicial Circuit. A sentencing hearing was held in Miami-Dade County on November 7,

1. See Fla. R. Jud. Admin. 2.260(b) (“The presiding judge from the originating court shall accompany the change of venue case, unless the originating and receiving courts agree otherwise.”).

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2008, and Hernandez was sentenced to life in prison for murder and thirty years in

prison for attempted murder. Soon after, Hernandez filed a notice of appeal with

the Eleventh Judicial Circuit, seeking review of the judgment and sentences in the

Third District Court of Appeal.

On September 8, 2009, Hernandez filed a motion with the Third District

requesting that his appeal be transferred to the Fifth District Court of Appeal.

Hernandez argued that because his trial was held in Orlando, the Fifth District,

which has jurisdiction over the Ninth Judicial Circuit in Orange County, was the

proper court of appellate jurisdiction. Citing this Court’s decision in Vasilinda v.

Lozano, 631 So. 2d 1082 (Fla. 1994), the Third District denied the motion, stating:

[W]e conclude that appellate jurisdiction lies with the Third District Court of Appeal. Although venue was transferred to Orange County due to pre-trial publicity, and venue rested with the Fifth District Court of Appeal during pendency of the trial to rule on any interlocutory motions or petitions entered in Orange County, once the case was transferred back to Miami-Dade County and the Clerk of the Court in Miami-Dade County received the court file, Orange County lost jurisdiction and appellate jurisdiction was transferred to the Third District. This finding is further supported by the fact that post-trial motions, the issuance of the judgment and sentence, and the notice of appeal all occurred in Miami-Dade County after Orange County transferred the case back to and the file was received by Miami-Dade County. Because venue was transferred back to Miami-Dade County and the case was concluded in Miami-Dade County, review of the judgment is properly before the Third District Court of Appeal.

Hernandez v. State, 34 Fla. L. Weekly D2269, D2270 (Fla. 3d DCA Nov. 4, 2009).

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The Third District noted, however, that its holding was in conflict with decisions of the Fourth and Fifth District Courts of Appeal. See id. In Cole v. State, 280 So. 2d 44 (Fla. 4th DCA 1973), an information was filed against the defendant in Broward County. The Broward County trial court granted a motion for a change of venue, transferring the case to Polk County for trial. After the

defendant was convicted by a jury, the trial court signed an order returning the case

to Broward County. The judgment and sentence were then entered by the trial judge in Broward County. Id. at 45.

The defendant appealed to the Fourth District, which observed that the location of the trial, Polk County, was outside of its jurisdiction. The Fourth

District concluded:

[O]nce the cause was transferred to and actually tried in the Criminal Court of Record for Polk County, jurisdiction remained in that court for the purpose of adjudication and sentencing. For the purpose of convenience we hold that the order transferring the cause back to the Court of Record for Broward County shall be given effect only as an administrative order for the convenience of the trial judge and the adjudication and sentence shall be treated as an adjudication and sentence of the Court of Record of Polk County, Florida.

Id. (citation omitted). The Fourth District therefore transferred the appeal to the Second District Court of Appeal, which had appellate jurisdiction over the Polk County trial court. Id.

The Fifth District reached a similar conclusion in Stanek-Cousins v. State, 896 So. 2d 865 (Fla. 5th DCA 2005). There, the defendant was indicted in the

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Ninth Judicial Circuit in Osceola County, but the case was transferred to the Fifteenth Judicial Circuit in Palm Beach County for trial. After trial, the Fifteenth Judicial Circuit transferred venue back to Osceola County for sentencing. Id. at 865-66. On appeal, the Fifth District determined that it did not have jurisdiction over the case. Explaining that “[a]ppeals from cases tried in Palm Beach County are heard by the Fourth District Court of Appeal,” the Fifth District transferred the appeal to the Fourth District. Id. at 866.

The Third District certified conflict with Cole and Stanek-Cousins. See Hernandez, 34 Fla. L. Weekly at D2270. We granted review to resolve the issue of which district court of appeal has appellate jurisdiction when a defendant has been tried and convicted in a trial court within the jurisdiction of one district court, but where the judgment and sentence have been entered in a trial court within the jurisdiction of a different district court.

ANALYSIS

The effect of a transfer of venue on the jurisdiction of the impacted trial courts is generally undisputed. The transferor court is divested of jurisdiction and thereafter lacks authority to enter any orders or take any further action in the case. The transferee court becomes vested with the same jurisdiction that was previously vested in the transferor court, and thereafter holds authority over the cause that is as full and complete as if the action had been initiated there. See Davis v. Florida

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Power Corp., 486 So. 2d 34, 35 (Fla. 2d DCA 1986); Univ. Fed. Sav. & Loan

Ass’n v. Lightbourn, 201 So. 2d 568, 570 (Fla. 4th DCA 1967).

Appellate jurisdiction follows the jurisdiction of the trial court. In Vasilinda,

as in the present case, the defendant committed the charged offenses in Miami and

was indicted in the Eleventh Judicial Circuit, but venue was transferred to the

Ninth Judicial Circuit in Orlando due to concerns over pretrial publicity. See 631 So. 2d at 1084. This Court had previously entered an order designating the

Eleventh Circuit trial judge, Judge W. Thomas Spencer, as a temporary judge of

the Ninth Circuit for the purpose of allowing him to preside over the trial in

Orlando. Prior to trial, Judge Spencer entered an order prohibiting the media from publicly identifying jurors. A television journalist filed a motion requesting a partial modification of the order, but the motion was denied. The journalist appealed to the Third District, which transferred the appeal to the Fifth District based on that court’s jurisdiction over cases tried in the Ninth Circuit. See id.

However, the Fifth District expressed uncertainty as to whether it was the

proper court to hear the appeal, stating:

[T]he orders to be reviewed are styled in the Eleventh Judicial Circuit, appear to be filed in the Eleventh Judicial Circuit, and were entered in Miami, Dade County, Florida in the Eleventh Circuit. The Supreme Court order assigning Judge W. Thomas Spencer of the Eleventh Circuit to hear, conduct, try and determine the case as a temporary judge of the Ninth Circuit does not specifically designate this court to hear any interlocutory orders in the cause.

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Vasilinda v. Lozano, 618 So. 2d 758, 759 (Fla. 5th DCA 1993).

To avoid any future jurisdictional disputes, the Fifth District refrained from

deciding the issue and instead certified the following question to this Court as a

matter of great public importance:

WHEN THE VENUE OF A CRIMINAL CASE IS CHANGED AND THE CASE TRANSFERRED TO A CIRCUIT COURT IN A DIFFERENT APPELLATE DISTRICT THAN THE ORIGINATING COURT, AND THE CIRCUIT JUDGE WHO ENTERED THE ORDER IS ASSIGNED AS A JUDGE OF THE TRANSFEREE CIRCUIT, IS APPELLATE JURISDICTION FOR INTERLOCUTORY AND FINAL REVIEW VESTED IN THE DISTRICT COURT OF APPEAL WHICH HAS JURISDICTION OVER THE ORIGINATING CIRCUIT COURT OR IS JURISDICTION VESTED IN THE DISTRICT COURT WHICH HAS JURISDICTION OVER THE TRANSFEREE COURT IN WHICH THE TRIAL IS TO BE HELD, AND AT WHAT POINT IN TIME DOES APPELLATE JURISDICTION VEST?

Id. at 759.

This Court began its analysis by stating: “It seems to be a generally

accepted principle that when venue is transferred to another jurisdiction and the

case is concluded in the new jurisdiction, review of the final order or judgment is

properly commenced in the appellate court which has jurisdiction over the

transferee court.” Vasilinda, 631 So. 2d at 1085. We observed, however, that

“[w]ith respect to review of interlocutory orders, the cases are in disarray.” Id.

Reviewing the existing precedent on the issue, we found that the confusion was

caused in part by a conflict in our own cases over the issue of when a change of

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venue actually takes effect. See id. at 1086-87 (discussing Ammons v. State, 9 Fla.

530 (1861), and Swepson v. Call, 13 Fla. 337 (1869)).

Finding that the cases could not be fully reconciled, we set out several

principles to govern determinations of appellate jurisdiction following transfers of

venue. First, regarding the actual moment a transfer of venue from one trial court

to another takes effect, we held:

Changes of venue in criminal cases do not become effective until the court file has been received in the transferee court. Changes of venue in civil cases do not become effective until the court file has been received in the transferee court and costs and service charges required by section 47.191, Florida Statutes (1991), and Florida Rule of Civil Procedure 1.060 which are applicable to the case are paid.

Vasilinda, 631 So. 2d at 1087.2

Second, regarding the moment the jurisdiction of the appellate court should

be determined, we stated:

Appellate jurisdiction is determined at the time the notice of appeal or petition for extraordinary writ is filed. If the change of venue has not yet become effective when the notice or petition is filed, appellate jurisdiction lies in the district court of appeal which serves as the appellate court for the transferor court. That district court of appeal shall retain jurisdiction of the matter before it even though the change of venue is later effected. Once the change of venue has become effective, appellate jurisdiction shall be in the district court of appeal which serves as the district court of appeal for the transferee court,

2. In Cottingham v. State, 672 So. 2d 28 (Fla. 1996), we clarified that in determining when a transfer of venue has been effected in a civil case, costs and service charges are considered paid on the date they are received by the transferee court.

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even if the challenged order was entered before the change of venue. Of course, the time for filing appeals and petitions for certiorari shall run from the date of the challenged order.

Id. (footnote omitted). We also noted that “even if the order changing venue itself is challenged, appellate jurisdiction will depend upon whether the change has been effected when the notice of appeal is filed.” Id. at 1087 n.4.

Applying those principles to the circumstances presented in Vasilinda, we concluded that “[b]ecause jurisdiction was already vested in the Ninth Judicial Circuit when petitioner filed his notice of appeal, the Fifth District Court of Appeal was the proper court for appellate jurisdiction.” Id. at 1087. We further stated: “The fact that after the change of venue Judge Spencer entered the challenged order in Miami under the style of the Eleventh Judicial Circuit does not change our conclusion.” Id.

Although Vasilinda concerned an initial transfer of venue, while the instant case concerns a transfer of venue back to the court of original jurisdiction, we conclude that the principles we set out in Vasilinda should continue to apply if and when a case is returned to the originating court. Thus, in determining appellate jurisdiction, the relevant issue is not where the defendant was tried and convicted, but rather whether the transfer of venue was complete at the time the notice of appeal was filed.

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The application of these principles to this case is clear. Despite the fact that

Hernandez was tried and convicted in the Ninth Judicial Circuit in Orlando, Judge

Schlesinger entered the order returning venue to the Eleventh Judicial Circuit

immediately after the trial was completed. Once that order was issued and the

court file was received by the clerk of the Eleventh Circuit, the Ninth Circuit was

divested of authority to take any action at the trial level. Likewise, the Fifth

District was divested of appellate jurisdiction, which thereafter rested with the

Third District for all subsequent matters in the case.3 Therefore, we find that

review of the judgment and sentences in this case is within the appellate

jurisdiction of the Third District.

CONCLUSION

We hold that once an order transferring venue has been entered by the

transferor court and the court file has been received by the clerk of the transferee

court, appellate jurisdiction becomes vested in the district court with jurisdiction

over the transferee court for all subsequent matters in the case. This rule applies

3. As the Third District correctly observed, however, had an appeal from any interlocutory orders or petitions entered in Orange County been filed prior to the transfer back to the Eleventh Circuit, appellate jurisdiction in that particular matter would have remained with the Fifth District. See Hernandez, 34 Fla. L. Weekly at D2270; see also Vasilinda, 631 So. 2d at 1087 (“If the change of venue has not yet become effective when the notice or petition is filed, appellate jurisdiction lies in the district court of appeal which serves as the appellate court for the transferor court.”).

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both to an initial transfer of venue and to any subsequent transfer back to the court

of original jurisdiction. Accordingly, we approve the decision of the Third District

in Hernandez and disapprove the decisions of the Fourth and Fifth Districts in Cole

and Stanek-Cousins to the extent that they are inconsistent with this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

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

Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions

Third District – Case No. 3D08-2892

(Dade County)

Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Richard L. Polin, Bureau Chief, Assistant Attorney General, Miami, Florida,

for Respondent

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Courtesy of David Edelstein

Supreme Court of Florida

____________

No. SC09-2383

____________

BRADLEY JAMES JACKSON,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[February 17, 2011]

LABARGA, J.

This case is before the Court for review of the decision of the First District Court of Appeal in State v. Jackson, 22 So. 3d 817 (Fla. 1st DCA 2009). The First District certified that its decision is in direct conflict with the decisions of the Third District Court of Appeal in State v. Williams, 20 So. 3d 419 (Fla. 3d DCA 2009), State v. Davis, 997 So. 2d 1278 (Fla. 3d DCA 2009), and State v. Berry, 976 So. 2d 645 (Fla. 3d DCA 2008). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The case under review concerns the resentencing of Bradley James Jackson

(“Jackson”) under the Criminal Punishment Code (“CPC” or “the Code”). As

explained below, Jackson pled guilty to two noncapital offenses in 2008. Following a sentencing hearing, the trial court imposed a downward departure sentence, which was reversed on appeal because the trial court failed to file written reasons for the original departure sentence and the oral reason it provided at sentencing was determined to be invalid. The issue before this Court is whether an appellate court that reverses the imposition of a downward departure sentence must remand for resentencing within the CPC, or whether it may remand for resentencing outside of the CPC. We conclude that on remand for resentencing a trial court is permitted to impose a downward departure when the trial court finds a valid basis for departure as prescribed under the Code. We therefore quash the decision of the First District in Jackson and approve the decisions rendered by the Third District in Williams, Davis, and Berry to the extent that they are consistent with our analysis and holding.

FACTS AND PROCEDURAL HISTORY

Jackson, who was forty-two years old at the time, was charged by information with one count of sale or delivery of cocaine and one count of possession of less than twenty grams of cannabis in April 2008. At sentencing, Jackson tendered and the trial court accepted a guilty plea to both counts. After the State requested the imposition of an eight-year prison sentence for the sale of cocaine, the trial court found that the defendant had requested assistance and was

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amenable to rehabilitation, and stated orally that it would impose a downward departure sentence on that basis. The State objected to the court’s decision to impose a downward departure and to the reasons given for the departure. The court sentenced Jackson to concurrent terms of nine months to be served in county jail and ordered a total of seventy-two days as credit for time served. According to the CPC score sheet, the sentencing points totaled 46.6 and called for a sentencing range of 13.95 months’ to fifteen years’ imprisonment.

The State appealed the trial court’s imposition of a downward departure sentence to the First District. On appeal, the First District concluded that because the trial court failed to file written reasons for departure, the sentence could be affirmed only if the trial court orally provided valid reasons for departure. Jackson, 22 So. 3d at 818. The district court concluded further that the ground provided orally for the downward departure—that Jackson was amenable to drug rehabilitation—was not valid. Id. (citing § 921.0026(3), Fla. Stat. (2008); State v. Owens, 848 So. 2d 1199, 1203 (Fla. 1st DCA 2003)). The district court consequently reversed the downward departure sentence and remanded for resentencing with specific directions that the sentence be within the guidelines.

Id.1

1. As we explain in our analysis, this case is governed by the CPC. Courts throughout the state continue to use the phrase “sentencing guidelines” when clearly referring to the CPC. Consequently, this opinion will use the phrase

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The First District certified conflict with three decisions rendered by the Third District—State v. Williams, 20 So. 3d 419 (Fla. 3d DCA 2009), State v. Davis, 997 So. 2d 1278 (Fla. 3d DCA 2009), and State v. Berry, 976 So. 2d 645 (Fla. 3d DCA 2008)—which permitted a trial court, upon remand, to resentence a defendant outside of the guidelines where the downward departure sentence was reversed for lack of written reasons. Jackson, 22 So. 3d at 818-19.

ANALYSIS

The conflict in this case centers on whether a trial court is precluded from imposing a departure sentence on remand when the original departure sentence was reversed on appeal because the trial court failed to file its written reasons for imposing the departure and the oral reason provided was determined to be invalid. This issue presents a legal question and thus is subject to de novo review. See Sanders v. State, 35 So. 3d 864, 868 (Fla. 2010).

The CPC governs sentencing in all noncapital felonies committed on or after October 1, 1998. See § 921.002, Fla. Stat. (2008). Florida Rule of Criminal Procedure 3.704 implements the CPC. Jackson committed the aforementioned offenses on April 11, 2008, thus subjecting him to sentencing under the CPC. Generally, a trial court must impose, at a minimum, the lowest permissible

“sentencing guidelines” wherever the district courts have used the term in pertinent case law. We will refer to the CPC wherever appropriate.

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sentence calculated according to the CPC unless there is a valid reason to impose a downward departure sentence. See § 921.0024(2), Fla. Stat. (2008). For noncapital offenses committed on or after October 1, 1998, “[t]he lowest permissible sentence provided by calculations from the total sentence points pursuant to s. 921.0024(2) is assumed to be the lowest appropriate sentence for the offender being sentenced.” § 921.00265(1), Fla. Stat. (2008).

A departure sentence is one that “decreases an offender’s sentence below the lowest permissible sentence” provided by calculations from the total sentence points. § 921.00265(2), Fla. Stat. (2008); see also Fla. R. Crim. P. 3.704(d)(27)(A). A trial court must not impose a downward departure sentence unless mitigating circumstances or factors are present which reasonably justify such a departure. §§ 921.0026(1), 921.00265(1), Fla. Stat. (2008); Fla. R. Crim. P. 3.704(d)(27). Section 921.0026(2) sets forth a nonexclusive list of mitigating factors under which a departure from the lowest permissible sentence is reasonably justified. § 921.0026(2), Fla. Stat. (2008).

Prior sentencing schemes required a trial court to provide a contemporaneous written explanation for the imposition of any departure sentence at a sentencing hearing. See § 921.001(6), Fla. Stat. (1987); see also Ree v. State, 565 So. 2d 1329, 1331 (Fla. 1990), receded from on other grounds by Smith v. State, 598 So. 2d 1063 (Fla. 1992). However, the CPC and applicable rules now

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require a sentencing court to file written reasons supporting the imposition of a

downward departure sentence within seven days after the date of sentencing. § 921.00265(2); see also Fla. R. Crim. P. 3.704(d)(27)(A). A court may file a written transcription of reasons stated orally at sentencing for a downward departure within seven days after the date of sentencing. § 921.00265(2); see also Fla. R. Crim. P. 3.704(d)(27)(A). A court may also list its written reasons for departure in the space allotted on the CPC score sheet. See Fla. R. Crim. P.

3.704(d)(27)(A).

The CPC is silent on how a trial court must resentence a defendant when the

original departure sentence is reversed on appeal. However, the Legislature has expressed certain principles embodied by the CPC. See § 921.002(1). Among

these principles is the notion that

[d]epartures below the lowest permissible sentence established by the code must be articulated in writing by the trial court judge and made only when circumstances or factors reasonably justify the mitigation of the sentence. The level of proof necessary to establish facts that support a departure from the lowest permissible sentence is a preponderance of the evidence.

§ 921.002(1)(f), Fla. Stat. (2008). Based on our reading of the legislative scheme, nothing within the CPC precludes the imposition of a downward departure sentence on resentencing following remand. To be sure, if a trial court on remand

resentences a defendant to a downward departure sentence, the trial court must

ensure it comports with the principles and criteria prescribed by the Code.

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However, an appellate court should not preclude a trial court from resentencing a defendant to a downward departure if such a departure is supported by valid grounds.

Having resolved the conflict presented before this Court, we decline to address the remaining issues raised by Jackson.

CONCLUSION

Based on the foregoing, we quash the decision of the First District in State v. Jackson, 22 So. 3d 817 (Fla. 1st DCA 2009), and approve the opinions rendered by the Third District in State v. Williams, 20 So. 3d 419 (Fla. 3d DCA 2009), State v. Davis, 997 So. 2d 1278 (Fla. 3d DCA 2009), and State v. Berry, 976 So. 2d 645 (Fla. 3d DCA 2008), to the extent that they are consistent with our holding.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.

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

Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions

First District – Case No. 1D08-3265

(Duval County)

Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida,

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for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, Florida,

for Respondent

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Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

THOMAS BONGE, Appellant,

v.

STATE OF FLORIDA, Appellee.

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

CASE NO. 1D09-4789

_____________________________/

Opinion filed February 16, 2011.

An appeal from the Circuit Court for Leon County.

Angela C. Dempsey, Judge.

Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

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

VAN NORTWICK, J.

Thomas Bonge seeks reversal of his judgment of conviction and sentence for

battery, arguing that the trial court reversibly erred in denying his motion to

dismiss. We agree. Given the facts admitted by the State in its traverse, there are

no material facts in dispute and under the undisputed facts the State could not establish a prima facie case against Bonge for the offense of battery. Accordingly, the trial court erred in denying Bonge’s motion to dismiss and we reverse.

Bonge was charged by information with battery on a person 65 years of age or older, contrary to section 784.08(2)(c), Florida Statutes. This offense incorporates the elements of the offense of battery as contained in section 784.03. The stated victim of the alleged battery was Bonge’s 94 year-old mother, who was residing in a nursing home at the time of the alleged offense. The charge was occasioned by Bonge’s removal of his mother from the nursing home to take her to a hospital emergency room. Bonge filed a sworn motion to dismiss the information pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure. In his motion to dismiss, he made the following factual assertions:

1. Mr. Bonge is charged with battery on Marie Andree, a person 65 years of age or older, on February 16, 2009, in violation of section 784.08(2)(c), Fla. Stat.

2. Marie Andree is Defendant’s mother.

* * *

4. At the time of the alleged crime, Marie Andree was 94 years old.

* * *

7. Since several years prior to the alleged crime, Defendant has been Ms. Andree’s primary caretaker, and

2

when she has not been hospitalized, she has lived with him.

8. At the time of the alleged crime, Marie Andree was a patient at Heritage Health Care, a rehabilitation hospital and nursing home, . . .

* * *

10. At the time of the alleged crime, Defendant took his mother in her wheel chair to a Heritage exit door where his car was parked.

11. At trial, Lovey Harris, a Heritage employee, would testify that at the time of the crime, Defendant parked Ms. Andree’s wheelchair at the exit and told her “let’s go.” (Harris Tr. 6). Ms. Andree said “it’s cold outside, I don’t want to go, it’s cold outside.” (Harris Tr. 6). Ms. Andree said this when Defendant first parked the wheelchair and this was the only time she spoke. (Harris Tr. 11). Defendant “grabbed her by her left arm and yanked her up out of the chair, and she was – she wasn’t saying anything at this time, and from looking at her, she was getting – I guess her legs were weak or whatever, and he was still trying to pull her out of the door. So he got her under the arms and he pulled her on out of the door, and her legs were – she didn’t have on any shoes. She had on socks. And her legs – her feet were dragging on the ground.” (Harris Tr. 6-7). A Heritage staff person held the door for Defendant while he took his mother out. (Harris Tr. 9-10). Ms. Harris checked to make sure Defendant had signed his mother out, and he had. (Harris Tr. 7). (Citations are to the transcript of the taped statement Ms. Harris gave to law enforcement).

12. Defendant’s purpose in touching his mother while moving her from her wheel chair to the car, was to help her get to the car without falling, in order to take her to the hospital.

3

13. Once he got his mother to the car, Defendant took her to the Tallahassee Memorial Regional Medical Center emergency room.

* * *

15. At the February 27, 2009, hearing, the State took the position, upheld by the Court, that Ms. Andree is not competent to testify. The State’s position was based in part on Ms. Andree’s memory gaps demonstrated in her response to questions at the hearing.

In its traverse to the motion to dismiss, the State admitted to all of the facts

set forth in the paragraphs quoted above. With respect to paragraph 12, the State

admitted the facts claimed therein and further added that the “victim protested

being removed from the facility.” Further, in its traverse the State asserted that Bonge’s mother was incompetent at the time of the offense. After the trial court

denied the motion to dismiss, Bonge pled guilty to the lesser offense of battery

while reserving the right to appeal the denial of his motion to dismiss.

The purpose of a motion to dismiss an information pursuant to rule

3.190(c)(4) is to “ascertain whether the undisputed facts which the State will rely

on to prove its case, establish a prima facie case, as a matter of law, so as to permit

a jury to determine the defendant guilty of the crime charged.” Lowe v. State, 40

So. 3d 789, 791 (Fla. 5th DCA 2010), quoting State v. Walthour, 876 So. 2d 594,

595 (Fla. 5th DCA 2004). Because this appeal raises a question of law, the

standard of review is de novo. State v. Sholl, 18 So. 3d 1158, 1160 (Fla. 1st DCA

4

2009). Based upon the facts admitted in the traverse, the State could not establish a prima facie case for the offense of battery. Section 784.08, which proscribes battery on a person 65 years of age or older, incorporates the definition of battery contained in section 784.03. Section 784.03(1)(a) defines battery as occurring when a person actually and intentionally touches or strikes another person against the will of the other or intentionally causes bodily harm to another person. Intent is an element of battery. Beard v. State, 842 So. 2d 174, 176 (Fla. 2d DCA 2003). The intent to commit a battery is determined by the circumstances surrounding the touching or the striking of the victim. Id; S.D. v. State, 882 So. 2d 447, 448 (Fla. 4th DCA 2004). Given the specific facts of this case, which were admitted by the State below, the State could not establish that Bonge intended to touch his infirm and elderly mother against her will when he lifted her from her wheelchair and placed her in his car for transport to a local emergency room.

The order denying dismissal of the information is REVERSED, appellant’s conviction is REVERSED, and his sentence is VACATED.

LEWIS and CLARK, JJ., CONCUR.

5

Courtesy of David Edelstein

_____________________________/

Opinion filed February 16, 2011.

An appeal from the Circuit Court for Escambia County.

Edward P. Nickinson, III, Judge.

Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

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

PER CURIAM.

The appellant, D.W.G., appeals an order from the trial court, which departed

from the Department of Juvenile Justice’s (DJJ) recommendation that D.W.G. be

placed on probation, and instead committed D.W.G. to a moderate-risk commitment program. Because the trial court failed to engage in the analysis required by E.A.R. v. State, 4 So. 3d 614 (Fla. 2009), we reverse.

“In E.A.R. v. State, 4 So. 3d 614, 638 (Fla. 2009), the supreme court ‘announced a new, more rigorous analysis in which a trial court must engage before departing from DJJ’s recommendation.’” T.M. v. State, 48 So. 3d 1007, 1008 (Fla. 1st DCA 2010) (quoting M.J.S. v. State, 6 So. 3d 1268, 1269 (Fla. 1st DCA 2009)). In order to depart, the trial court must explain why one restrictiveness level is more appropriate than another. E.A.R., 4 So. 3d at 638. The trial court may do so by first “[a]rticulat[ing] an understanding of the respective characteristics of the opposing restrictiveness levels,” and “[t]hen logically and persuasively explain[ing] why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.” Id.

Here, the trial court failed to engage in the appropriate analysis set forth in E.A.R. to comply with the “highly specific statutory requirements.” T.M., 48 So. 3d at 1009. As required by E.A.R., the court should have compared the relevant features of the various restrictiveness levels, “with a focus on the appropriateness of each setting as a tool for achieving the rehabilitative goal.” T.M., 48 So. 3d at

2

1009. Accordingly, we reverse and remand to provide the trial court with an opportunity to enter an order fulfilling the requirements set forth in E.A.R., or, if it cannot do so, to impose DJJ’s recommendation. C.B. v. State, 16 So. 3d 1049, 1051 (Fla. 1st DCA 2009).

LEWIS, CLARK, and ROWE, JJ., CONCUR.

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed February 16, 2011.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D10-3276

Lower Tribunal No. 93-42993

________________

Willie Thomas,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Roberto M. Pineiro, Judge.

Willie Thomas, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before WELLS, SHEPHERD, and SUAREZ, JJ.

WELLS, Judge.

Willie Thomas appeals an order summarily denying his motion to correct an

illegal sentence under Florida Rule of Criminal Procedure 3.800(a). On appeal

from a summary denial, this Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

The trial court denied the instant motion upon finding that the defendant had raised the same claim in a prior Rule 3.800 motion and that the claim was previously denied. However, the lower court failed to attach Thomas’ prior Rule 3.800 motion and the prior order denying the motion to the instant order under review. Because the record before us fails to make the required showing, we reverse the order on appeal and remand for an evidentiary hearing, or for the attachment of record excerpts conclusively showing that the appellant is not entitled to relief. See Fla. R. App. P. 9.141(b)(2)(D).

Reversed and remanded for further proceedings.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

JUAN CARLOS PEREA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-800

[February 16, 2011]

POLEN, J.

Appellant, Juan Perea, was charged by information with lewd and lascivious battery and proceeded to jury trial. After being found guilty as charged, Perea was sentenced to ten years imprisonment.

During opening statement, defense counsel stated that Perea, who was thirty-one years old, had a consensual relationship with D.A., who was fourteen years old, and that they were in love and wanted to get married. Defense counsel also stated that Perea was from Central America, and “in Central America, a man who is 31 usually marries a young woman in her teens.”

The prosecutor, outside the presence of the jury, asked the court to inquire whether Perea agreed with defense counsel’s theory of defense, and also if Perea conceded that h e ha d consensual sex with D.A. Defense counsel objected to the inquiry on the grounds that she stated in opening that whatever D.A. and Perea did was consensual, and not that they had consensual sexual relations or consensual vaginal intercourse. The following exchange then took place:

COURT: And this is the defense that you are agreeing with to proceed along these lines, correct?

PEREA: I really don’t agree too much, but that is the law.

COURT: Sir, I am not asking you to say whether you are guilty or not guilty…I mean, she’s not just on some wild jag doing whatever

she wants to do…She has discussed this with you and talked about your case. Yes?

PEREA: Yes.

STATE: Judge, the one thing that I would like your honor to ask is when his attorney said in opening statement that he had a consensual sexual relationship with a 14 year-old-girl that he was aware and agrees with that position and that defense.

DEFENSE COUNSEL: Judge, I d o not think that is an

appropriate inquiry.

. . . .

COURT: In your attorneys opening she stated that there was a consensual sexual relationship between you and the victim in this case and that it was based on a loving relationship and that you wanted to get married, correct?

PEREA: Yes.

COURT: And there was a consensual intercourse between you and the victim in this case who is 14 and because you had this loving relationship a n d yo u planned o n getting married…You have acknowledged that?

PEREA: Well, can you repeat that?

COURT: When your lawyer, in opening, said that you had this loving consensual sexual relationship with the victim because you were in love and that it was your plan or that you wanted to eventually get married, that defense, you are in agreement with that, correct?

PEREA: Yes.

COURT: Okay.

Perea argues that the trial court erred in failing to make an adequate inquiry upon learning that defense counsel was conceding his guilt. Perea acknowledges that the court did make an inquiry but contends that the inquiry was insufficient because the court failed to determine

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whether Perea unequivocally understood the consequences of the concession.

Perea relies on Nixon v. State, 932 So. 2d 1009 (Fla. 2006), in which Nixon claimed ineffective assistance of counsel after his defense attorney conceded his guilt during his murder trial and focused instead on convincing the jury to spare Nixon’s life. Id. at 1014. Perea points to the Florida Supreme Court’s conclusion that defense counsel’s concession of guilt is the “functional equivalent of a guilty plea” and thus requires an affirmative, explicit acceptance of defense counsel’s strategy b y the defendant. However, that conclusion was reached in the Florida Supreme Court’s earlier opinion in Nixon v. Singletary, 758 So. 2d 618, 624 (Fla. 2000), which was later reversed by the United States Supreme Court. Florida v. Nixon, 543 U.S. 175, 176-77 (2004). In fact, the United States Supreme Court held:

The Florida Supreme Court erred in applying . . . a presumption of deficient performance, as well as a presumption of prejudice; that latter presumption, we have instructed, is reserved for cases in which counsel fails meaningfully to oppose the prosecution’s case. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). A presumption of prejudice is not in order based solely on a defendant’s failure to provide express consent to a tenable strategy counsel h a s adequately disclosed to and discussed with the defendant.

Id. at 178-79. The Court also determined that the Florida Supreme Court erred in holding that a defense attorney’s concession of his client’s guilt, made without the defendant’s express consent, automatically qualifies as prejudicial ineffective assistance of counsel and requires a new trial under United States v. Cronic, 466 U.S. 648 (1984). Instead, Nixon’s claim of ineffective assistance of counsel should have been evaluated under Strickland v. Washington, 466 U.S. 668 (1984). Finally, the Court recognized that, because Nixon had been charged with a capital crime, the gravity of the potential sentence and the trial’s two-phase structure distinguished Nixon’s case from a “run-of-the-mine trial” which might present a closer question. Id. at 190.

Perea’s argument necessarily fails. Not only has he relied on a conclusion which was overturned by the United States Supreme Court, but his case is materially distinguishable from Nixon. Perea’s attorney did not actually concede his guilt. Defense counsel conceded the facts but never conceded the legal conclusion that Perea was guilty of the crimes charged, and thus, the trial court’s inquiry here was sufficient.

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We affirm without prejudice to Perea filing a rule 3.850 motion for post-conviction relief.

Affirmed.

WARNER and LEVINE, JJ., concur.

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Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen Miller, Judge; L.T. Case No. 07CF014948AMB.

Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela J o Bondi, Attorney General, Tallahassee, and James J.

Carney, 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

GEORGE McKELVIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-4719

[February 16, 2011]

POLEN, J.

Appellant, George McKelvin, appeals the trial court’s order adjudicating him guilty of possession of a firearm by a convicted felon (Count I) and possession of cocaine (Count II). McKelvin pled no contest to the charges following the trial court’s denial of his motion to suppress. The court sentenced McKelvin to concurrent terms of three years in prison followed by two years probation on both counts. We hold that the trial court erred in denying McKelvin’s motion to suppress and reverse.

At the hearing on McKelvin’s motion to suppress, Detective James Gibbons and Detective Leonard Tinelli testified that on September 23, 2008, they received information from an unidentified anonymous source who approached them while they were on an unrelated stop. The source told them that a black male in a burgundy or red Dodge Charger with 23 or 24-inch chrome rims was engaged in “narcotics activity.” The person specifically described a black male who was between 50 and 55 years old, about 5’9” or 5’10”, who had short cropped hair and who weighed between 180 and 195 pounds. Detective Tinelli specified that the source told the officers that the car “continuously drove into the Budget hotel/motel . . . five or six times a day.” The source gave them the tag number of the vehicle. Finally, the source told the officers that s/he had witnessed “hand-to-hand transactions” in which the occupant of the Charger would take money from a person and give the person an object. The detectives were dressed in police tactical gear which contained clear markings identifying them as police officers.

The source wanted to remain anonymous. Accordingly, the officers never took the informant’s name, phone number or address.

The detectives parked their unmarked vehicle near the Super Budget Motel mentioned by the source. About an hour or an hour and a half later, a Charger, matching the description and tag number given by their source, arrived at the motel. Although they did not see any traffic infractions or other indication of illegal activity, and the car contained a female passenger, unmentioned by the anonymous source, the detectives activated their lights and stopped the vehicle after checking the tag number.1

Detective Gibbons approached the driver’s side of the Charger and saw the driver remove a black object from his waistband and put it beneath his seat. Gibbons “clearly identified [the object], due to my training, knowledge, and experience, as a gun.” He immediately removed the driver from the vehicle. The driver threw a bag which had white, rock-like substances in it to the floor.

Defense counsel agreed with the judge that the motion would be determined by the legality of the initial stop because once the officers stopped and approached the vehicle, they saw, in plain view, that the driver had a gun which h e threw under the seat. Therefore, the subsequent search and detainment was justified by probable cause. The court found that the fact that the informant approached the police officers, gave them information in person, provided detailed information of the activity which was suspicious, and provided a detailed description of the vehicle, the occupant, and the tag number gave the officers reasonable suspicion of criminal activity sufficient to justify the initial stop of the vehicle. Accordingly, the court denied McKelvin’s motion to suppress.

“In reviewing an order on a motion to suppress, an appellate court should defer to the trial court’s factual findings but review de novo the application of the law to the facts.” Dixon v. State, 36 So. 3d 920, 923 (Fla. 4th DCA 2010). A law enforcement officer may stop and detain an

1 We recognize that in many cases involving an anonymous tipster, the officers observe the subject of the tip long enough to witness what they believe is illegal activity. Had the officers here watched the vehicle and seen a hand-to-hand transaction or some other activity similar to that described by the tipster in this case, that likely would have been corroborating evidence sufficient to warrant a subsequent stop.

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individual for investigation so long as he has a reasonable suspicion that the individual has committed, is committing, or is about to commit a crime. Fuentes v. State, 24 So. 3d 1231, 1234 (Fla. 4th DCA 2009). Whether the officer’s suspicion was reasonable is determined by considering the totality of the circumstances and the facts known to the officer before the stop. Id.

McKelvin asserts that the present case is “on all fours” with Fuentes, in which this court recognized that information provided b y an anonymous tipster provides the basis for an investigatory stop only once it is sufficiently corroborated by the police because the basis of the tipster’s knowledge and veracity are generally unknown. 24 So. 3d at 1235. In Fuentes, an officer received a call from dispatch regarding an anonymous complaint that a white female and white male were punching each other inside a U-haul truck. Id. The officer drove toward the reported location, which was near a U-haul rental facility. She observed a white female driving a U-haul truck with a white male passenger. She followed and ultimately pulled over the vehicle. Id. When another officer arrived and asked Fuentes to step out of the vehicle, Fuentes opened the door and a bag of marijuana fell from her lap. Id. We reversed the trial court’s denial of the motion to suppress because the officer did not have reasonable suspicion of criminal activity at the time she conducted the investigatory stop. Id. at 1236.

The State points out that the instant case is unlike Fuentes in that, here, the police were approached by an individual in person who gave detailed information regarding the suspicious activity. Thus, the individual in the instant case was more like a “citizen informant,” as discussed by the Florida Supreme Court in Baptiste v. State, 995 So. 2d 285 (Fla. 2008):

State and federal case law establishes that the reliability of a tip which alleges illegal activity varies based upon whether the tip is truly anonymous, such as an anonymous telephone call, or whether it is offered by a “citizen informant” who approaches the police in person to report criminal activity. A tip from a citizen informant falls at a higher end of the reliability scale. This hierarchy has been described as based on various factors. First, a citizen informant may be motivated not by pecuniary gain, but by the desire to further justice. Second, unlike an anonymous tipster, a witness who directly approaches a police officer may be held accountable for false statements. Third, a face-to-face tip may be viewed as more reliable because the officers who receive the tip have the opportunity to observe the demeanor and evaluate the

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credibility of the person offering the information. Fourth, a witness who approaches the police in person may subject himself or herself to potential reprisal from the defendant, thereby rendering the tip more reliable than an anonymous tip.

Id. at 291 (citations omitted).

The State also points to several cases in which this court has noted the greater reliability of face-to-face tips. For example, in J.P.N. v. State, 931 So. 2d 1066 (Fla. 4th DCA 2006), a man flagged down a patrolling officer in a Wal-Mart parking lot and told him that he had seen a gray vehicle occupied by black males stopping intermittently, exiting their vehicle, and peering in the windows of vehicles parked in the parking lot. Id. at 1067. The man pointed the officer to the vehicle which was leaving the parking lot at the time, and the officer subsequently stopped the vehicle. Id.

This court noted that, generally, anonymous informants are informants who provide information via telephone. Only two cases have determined that a face-to-face informant was the same as an anonymous informant: Solino v. State, 763 So. 2d 1249 (Fla. 4th DCA 2000), and State v. Rewis, 722 So. 2d 863 (Fla. 5th DCA 1998). Both Solino and Rewis involved a passing motorist who informed police officers that he suspected criminal activity a n d th e officers’ failure to take the informant’s contact information or tag number. Thus, in both cases, the court concluded that for all practical purposes the tipster was an anonymous informant because his identity a n d his motives were unknown to the officers, and the officers had no way to contact the informant and no wa y to corroborate the information h e provided. Rewis, 722 So. 2d at 864; Solino, 763 So. 2d at 1252.

This court distinguished J.P.N. from Rewis and Solino on the grounds that, in J.P.N., the officer had a sixty to ninety second conversation with the informant during which the officer was able to judge the informant’s credibility and the officer also had knowledge of recent car burglaries in the subject parking lot. J.P.N., 931 So. 2d at 1069. For these reasons, we held the tip was sufficiently reliable to warrant the stop. Id.

Here, there is no record evidence that the police officers had knowledge of or were concerned about drug dealing activity in the subject area. There is also no evidence regarding the length of the officers’ encounter with the informant. Therefore, the instant case is not controlled by J.P.N.

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The indicia of reliability typically attributed to face-to-face encounters between police officers and informants do not exist in the present case where the police have no contact information for the informant and no way to locate him/her otherwise. Further, in the instant case, the officers did not know the motive of the informant. S/he could have been providing the information for his/her own pecuniary gain, may have had a falling out with McKelvin or may have even been acting on behalf of a competing drug dealer. Where the court in J.P.N. found record evidence to support its distinction of that case from Rewis and Solino, there is no evidence to materially distinguish the present case from those cases. Though the informant provided the police with extensive details regarding McKelvin and the suspicious activity, even anonymous tips “require detailed a n d specific information corroborated b y police investigation” in order to establish the reasonable suspicion required for a stop. Pinkney v. State, 666 So. 2d 590, 592 (Fla. 4th DCA 1996).

Without contact information or some other way to locate the informant if necessary, the informant in the present case is no different than an anonymous informant who provides detailed information over the phone to the police dispatch. The tipster approached the officers while they were engaged in an unrelated stop. There is no record evidence of how long the police interacted with the informant or whether they were able to discern his/her credibility during their encounter. As the police admitted they did not witness so much as a traffic infraction before initiating the stop, the officers did not have reasonable suspicion, and the trial court erred in denying the motion to suppress.

Reversed and Remanded.

WARNER and STEVENSON, JJ., concur.

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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 08-18285 CF10A.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, 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

CORDELL FLOWERS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2345 [February 16, 2011]

PER CURIAM.

We affirm the trial court’s denial of appellant’s sixth motion for postconviction relief which argued that the decision in Arizona v. Gant,

129 S. Ct. 1710 (2009), applies retroactively to his 1997 conviction. See Fla. R. Crim. P. 3.850(b)(2). This conviction became final when this court affirmed the judgment and sentence in 1998. Flowers v. State, 717 So.

2d 1031 (Fla. 4th DCA 1998) (Table).

Applying the retroactivity analysis of Witt v. State, 387 So. 2d 922 (Fla. 1980), we hold that the decision in Gant is an evolutionary refinement in Fourth Amendment law and not a development of fundamental significance, a major constitutional change, or jurisprudential upheaval that requires retroactive application to cases on collateral review. See, e.g., Hughes v. State, 901 So. 2d 837 (Fla. 2005); Johnson v. State, 904 So. 2d 400 (Fla. 2005); Chandler v. Crosby, 916 So.

2d 728 (Fla. 2005); State v. Barnum, 921 So. 2d 513 (Fla. 2005).

Additionally, we note that, under the facts of this case, Gant would not have compelled a different result on appellant’s 1997 motion to suppress.

Affirmed.

STEVENSON, HAZOURI and CIKLIN, JJ., concur.

* * *

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. 96-023689 CF10A.

Cordell Flowers, Live Oak, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

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