Florida Criminal Law Opinions

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICTJanuary Term 2011
JAMES EDWARD JONES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D11-102
[February 16, 2011]
PER CURIAM.
Petitioner James Edward Jones filed a petition for writ of habeas corpus to challenge his continued detention under a sentence for direct criminal contempt. We treat the petition as a timely filed notice of appeal of the contempt conviction under Florida Rule of Appellate Procedure 9.040(c), and we reverse.
Jones was subpoenaed in State v. Arnold, case no. 08CF014103AMB, by counsel representing the defendant, who was being tried for first-degree murder. According to Jones’s petition, Arnold’s defense was that he had left the victim alive in Jones’s company. Jones appeared, but refused to answer defense counsel’s questions, asserting his Fifth Amendment privilege against compulsory self-incrimination.
The trial court found Jones to be in direct criminal contempt for refusing to testify and sentenced him to five months and twenty-nine days. The trial court’s three-page contempt judgment detailed how it had advised Jones that he could not assert his Fifth Amendment right and required him to answer defense counsel’s questions, but Jones refused. The trial court asked him to show cause why he should not be adjudged guilty of direct criminal contempt, and whether he had any evidence of excusing or mitigating circumstances, b u t he refused to respond. According to Jones’s petition, at the time, neither the trial court nor the state advised him that he would be granted immunity in connection with his testimony.
Jones  filed  a  motion  for  rehearing  in  which  he  argued  that  the  trial
court overlooked the fact that only the prosecuting attorney can offer immunity, but the trial court denied the motion.
The lengthy contempt judgment was silent as to whether the state had agreed to grant Jones immunity for his testimony. While section 914.04, Florida Statutes (2010) (providing immunity for one served with a subpoena), does not appear to limit its application to persons who are subpoenaed by the state, case law makes it clear that the purpose of the statute is to aid the state; a defendant cannot immunize a witness in order to secure the witness’s compulsory testimony. Fountaine v. State, 460 So. 2d 553 (Fla. 2d DCA 1984) (affirming conviction and explaining that section 914.04 is designed to insulate witness against incriminating effect of testimony compelled b y the state). The Fountaine court explained as follows:
We hold that the self-executing feature of section 914.04 discussed in Jenny [v. State, 447 So. 2d 1351 (Fla. 1984),] is limited to cases where the state subpoenas a witness to testify before the state attorney, grand jury, or before a court having felony jurisdiction. It cannot b e invoked by the defendant to immunize a witness. Therefore, we find no error in the trial court’s refusal to grant immunity to Powers [a prospective defense witness who refused to testify without a grant of immunity], who was subpoenaed to testify on behalf of the defendant. To hold otherwise would enable defendants to seriously impede the prosecution of crime.
Id. at 555. Neither do trial courts, under ordinary circumstances, have any inherent power to grant use immunity to a defense witness over the state’s objection. State v. Montgomery, 467 So. 2d 387, 395 (Fla. 3d DCA 1985) (granting petition for writ of prohibition).1
Because nothing in the petition or in the trial court’s contempt judgment suggested that the state had agreed to grant Jones immunity if he were to testify in the Arnold prosecution, this court issued an order to show cause. The state has responded that, in light of Fountaine and

1 The Montgomery court explained there is an exception in cases of prosecutorial misconduct: when a defendant’s right to subpoena a witness, and to have the witness available as the defendant finds the witness, is violated by prosecutorial misconduct, then a judgment of acquittal is warranted, unless the state agrees to cure the constitutional violation with a grant of use immunity pursuant to section 914.04. 467 So. 2d at 392.
2
Montgomery, it cannot show cause why the petition should not be granted.
Accordingly, we reverse Jones’s conviction and sentence for direct criminal contempt in L.T. case no. 2010MM021580A, but we direct him to be released solely from his incarceration in connection with the instant contempt case.
This decision should not be interpreted to affect Jones’s custody, to the extent he is incarcerated for any other reason. Jones indicated in his petition that he was in custody in connection with an unrelated case when he was subpoenaed to testify in the Arnold prosecution; the state’s response indicates that he is being held in custody on unrelated charges in L.T. case no. 2010CF010050. We order only that Jones not be held any longer in connection with L.T. case no. 2010MM021580A.
Reversed.
HAZOURI, GERBER and LEVINE, JJ., concur.
* * *
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen M. Miller, Judge; L.T. Case No. 2010MM021580A.
James Edward Jones, West Palm Beach, 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.

3

Courtesy of David Edelstein

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

	February 11, 2011
EUGENE GREGORY WALTON,	)
	)
Appellant,	)
	)
v.	)	Case No. 2D08-1935
	)
STATE OF FLORIDA,	)
	)
Appellee.	)
___________________________________)

Upon consideration of Appellee’s motion for rehearing/rehearing en banc, rehearing is granted and this court’s opinion dated April 16, 2010, is withdrawn. The attached opinion is substituted therefor. Appellee’s motion for rehearing en banc is denied.

No further motions for rehearing or clarification will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A

TRUE COPY OF THE ORIGINAL COURT ORDER.

JAMES R. BIRKHOLD, CLERK

	IN THE DISTRICT COURT OF APPEAL
	OF FLORIDA
	SECOND DISTRICT
EUGENE GREGORY WALTON,	)
	)
Appellant,	)
	)
v.	)	Case No. 2D08-1935
	)
STATE OF FLORIDA,	)
	)
Appellee.	)
___________________________________)

Opinion filed February 11, 2011.

Appeal from the Circuit Court for

Hillsborough County; Anthony K. Black,

Judge.

Eugene Gregory Walton, pro se.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Danilo Cruz-Carino,

Assistant Attorney General, Tampa, for

Appellee.

LaROSE, Judge.

In January 2005, Eugene Gregory Walton was convicted and sentenced

for burglary of a dwelling with assault and false imprisonment. We affirmed his convictions and sentences on direct appeal. Walton v. State, 928 So. 2d 350 (Fla. 2d

DCA 2006) (table decision). Mr. Walton now appeals the denial of his August 9, 2006, amended postconviction motion. See Fla. R. Crim. P. 3.850. He raised twenty-four

claims. By order dated June 11, 2007, the postconviction court allowed Mr. Walton to amend claim one. It ordered a State response to claims ten, twelve, thirteen, and twenty-four. In the same order, the postconviction court denied the remaining claims as refuted by the record, procedurally barred, or either facially insufficient or conclusory.

After receiving Mr. Walton’s amended claim one and the State’s response, the postconviction court, by order dated September 11, 2007, ordered an evidentiary hearing on claims one and ten. It denied claims twelve and thirteen as refuted by the record and denied claim twenty-four as facially insufficient. By final order dated March

20, 2008, the postconviction court denied claims one and ten after conducting an evidentiary hearing.

We affirm, without further discussion, the denial of claims one and ten, the summary denial of claims four and eleven through seventeen as refuted by the record, and the summary denial of claims eighteen through twenty-three as procedurally barred.

We also affirm the summary denial of claims two, three, five, six, seven, eight, nine, and twenty-four as facially insufficient or conclusory. In the past, we may have been inclined to reverse and remand for the postconviction claimant to amend facially insufficient or conclusory claims. See Spera v. State, 971 So. 2d 754, 761-62 (Fla. 2007);1Jimenez v. State, 993 So. 2d 553, 556 (Fla. 2d DCA 2008) (applying Spera to claims that allege merely conclusory allegations as well as to claims that are facially insufficient). However, on the record before us, Mr. Walton is entitled to no such opportunity.

1The postconviction court did not have the benefit of Spera, which issued after its first two orders. However, Spera applies to cases in which an appeal is pending once it issued. Rodriquez v. State, 993 So. 2d 152, 153 (Fla. 1st DCA 2008).

- 2 -

Shortly after his direct appeal failed, Mr. Walton filed his amended rule

3.850 motion. In July 2007, he amended claim one. Spera issued in November 2007.

Until the postconviction court’s final order in March 2008, Mr. Walton had several months to seek leave to amend the facially insufficient or conclusory claims. He did not do so. Nor did he raise any issue about those claims in his brief.2 He focused, instead, on claims that were denied as procedurally barred or refuted by the record. We see no reason to extendSpera relief to a postconviction claimant who fails to properly raise the issue with us. See Watson v. State, 975 So. 2d 572 (Fla. 1st DCA) (holding that when a

defendant has appealed from a summary denial of a claim but fails to address Spera in

his brief, appellate court need not consider the matter because the issue is waived),

cause dismissed, 987 So. 2d 1211 (Fla. 2008) (table decision); see also Williams v.

State, 24 So. 3d 1252 (Fla. 1st DCA 2009).

Although we agree with Watson’s result, we do not accept its entire

reasoning. Watson relies principally on death penalty postconviction cases where an attorney represented the petitioners and waived certain claims. Mr. Walton is pro se. But we believe that a pro se postconviction claimant can, by failing to raise such issues in his brief, waive a Spera claim. See Watson, 975 So. 2d at 574-75 (Wolf, J., concurring). Other courts have reached the same result. See Ward v. State, 19 So. 3d

1060, 1061 (Fla. 5th DCA 2009); cf. Hammond v. State, 34 So. 3d 58 (Fla. 4th DCA

2The State filed an answer brief but did not argue that Mr. Walton had waived review of his other claims. See Bilotti v. State, 27 So. 3d 798 (Fla. 2d DCA 2010) (finding a waiver of claims where (1) counsel’s appellate brief asserted no error as to the denial of some rule 3.850 grounds, (2) the State, in its answer brief, argued that any error in the postconviction court’s rulings on those grounds was waived because it was not challenged on appeal, and (3) no reply brief or request to file a supplemental brief was filed to address the State’s argument).

- 3 -

2010); Austin v. State, 968 So. 2d 1049 (Fla. 5th DCA 2007); see also Prince v. State,

40 So. 3d 11, 13 (Fla. 4th DCA 2010) (reiterating that a pro se appellant who presents no argument as to why a trial court’s ruling is incorrect on an issue has abandoned the issue).

Affirmed.

DAVIS,3 J., Concurs.

KELLY, J., Concurs in result only.

3Judge Davis has been substituted for Senior Judge Carolyn K. Fulmer, who was on the original Walton panel.

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	IN THE DISTRICT COURT OF APPEAL
	OF FLORIDA
	SECOND DISTRICT
MARVALIUS LACLUT SWIFT,	)
	)
Appellant,	)
	)
v.	)	Case No.	2D09-476
	)
STATE OF FLORIDA,	)
	)
Appellee.	)
________________________________ )

Opinion filed February 11, 2011.

Appeal from the Circuit Court for

Highlands County; Peter F. Estrada,

Judge.

James Marion Moorman, Public

Defender, and Robert F. Moeller,

Assistant Public Defender, Bartow,

for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Danilo Cruz-Carino,

Assistant Attorney General, Tampa,

for Appellee.

KELLY, Judge.

In this Anders1 appeal, Marvalius Laclut Swift challenges his convictions

and sentences for possession of cocaine and possession of cocaine with intent to sell

1Anders v. California, 386 U.S. 738 (1967).

within 1000 feet of a church. After a thorough review of the record, we have found no reversible error and affirm Mr. Swift’s judgments and sentences. However, we agree with Mr. Swift’s contention that the trial court erred in imposing certain costs under sections 938.05(1) and 938.29(1)(a), Florida Statutes (2008), as he asserted in a timely motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

Mr. Swift correctly contends that the assessment of $225 to the Criminal

Justice Trust Fund must be reduced to $200 based on the version of section

938.05(1)(a) in effect at the time of his offenses. See § 938.05(1)(a), Fla. Stat. (2007);Torres v. State, 42 So. 3d 914, 915 (Fla. 2d DCA 2010). With respect to the imposition of a $100 public defender fee, Mr. Swift is also correct that under the applicable version of the statute, he would only be liable for such fee if the trial court pronounced it at sentencing and informed him of his right to contest the amount at a hearing. See §

938.29(1)(a), Fla. Stat. (2007). Although it appears from the record that Mr. Swift disagreed with the amount of the fee awarded, it is not clear whether the court properly advised him of his right to a hearing to contest the amount. We therefore strike the public defender fee without prejudice to it being reimposed on remand after the proper procedures are followed. See Del Valle v. State, 26 So. 3d 650, 651 (Fla. 2d DCA 2010). Finally, as to the $3 fee to “Teen Court Fund” under section 938.19, we affirm the assessment but remand for the trial court to correct the amended order assessing fines and costs to reflect the applicable ordinance in accordance with Ayoub v. State,

901 So. 2d 311, 315 (Fla. 2d DCA 2005).

- 2 -

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

WHATLEY and CRENSHAW, JJ., Concur.

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IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

LUC PIERRE-CHARLES,	)
	)
Appellant,	)
	)
v.	)	Case No. 2D09-2263
	)
STATE OF FLORIDA,	)
	)
Appellee.	)
	)
Opinion filed February 11, 2011.
Appeal from the Circuit Court for Pasco
County; Pat Siracusa, Judge.
James Marion Moorman, Public Defender,
and Terri L. Backhus, Special Assistant
Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa, for
Appellee.

BLACK, Judge.

Luc Pierre-Charles (the defendant) appeals his convictions and life

sentences for two counts of first-degree murder. On July 28, 2006, Derek Pieper and

Raymond Veluz were found dead, lying face down on an isolated road in Dade City,

Florida. Both victims suffered multiple gunshot wounds to the backs of their heads.

Two years later, the State indicted the defendant for two counts of first-degree murder.

After a jury trial, the defendant was convicted as charged and sentenced to life in prison. The defendant raises five issues on appeal, only one of which requires reversal.

We affirm, without comment, the trial court’s admission of a witness’ prior consistent statement, the admission of certain autopsy photographs, the denial of defendant’s motion for judgment of acquittal, and the trial court’s denial of access to a witness’ grand jury testimony. We find error in the trial court’s admission of a hearsay statement made by the defendant’s brother, and based on this error, we reverse and remand for a new trial.

I. Background Facts

Witnesses testified that, at around 5:30 a.m. on July 28, 2006, they heard a series of gunshots coming from Harris Hill Road, a dirt road near their Dade City homes. The bodies of the two victims were found on Harris Hill Road shortly thereafter. At trial, the State offered no physical evidence linking the defendant to the murders. Rather, the State built its case around the testimony of Angel Brooks and the defendant’s brother, Andre Pierre-Charles (who will hereinafter be referred to as “Andre”).

Ms. Brooks made five statements related to this case. On August 14,

2006, she made her first statement to a detective. She stated that she was with Andre on the night of the murders when he received a call from an unknown caller. In her statement at the sheriff’s office on August 23, 2006, Ms. Brooks did not mention a speakerphone at all. That same day, at the state attorney’s office, Ms. Brooks said she

- 2 -

did not hear who was on the phone with Andre. Ms. Brooks first mentioned a speakerphone in her January 2009 deposition. She said she heard the defendant’s voice on the speakerphone telling the victims to get down on their hands and knees and pray. Ms. Brooks testified that she could hear the victims saying, “Please don’t.

Please don’t do this.” Ms. Brooks’ trial testimony was consistent with her deposition testimony.

The State also called Andre as a witness. Prior to Andre’s testimony, defense counsel requested a proffer of Andre’s anticipated testimony outside the presence of the jury. Counsel anticipated that the State was going to discuss an August 15, 2006, videotaped conversation between Andre and his father, which took place at the police station. Detectives called Andre to the police station to question him about the murders. Both his father and mother were present in the interrogation room during the questioning. The detective and Andre’s mother left the interrogation room, and the videotape showed that while Andre and his father were alone, Andre’s father questioned him about the murders and whether he knew who committed them. His father asked, “Is it Luc?” Andre nodded his head up and down. Originally, the State argued that the videotape would serve to impeach Andre’s testimony because they expected Andre to deny nodding his head up and down in response to his father’s question. Defense counsel argued that Andre’s head nod was inadmissible hearsay because it was offered to prove the truth of the matter asserted: that the defendant killed the victims. The trial court agreed to a proffer of Andre’s testimony regarding the videotape and its contents. The court questioned Andre about the head nod:

COURT: Okay. Were you nodding your head, yes, in response to his question meaning—

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A: No. If you look at the tape, I was nodding my head, doing hand gestures, stuff like that through really most of the whole video. That was, like, I’m tired of this; get me out of here.

That wasn’t me saying, yes, my brother did it.

COURT: All right. So when your father asked you, was he involved, you nodded your head yes as in, yes, I want to leave instead of, yes, he was involved. That’s what you’re telling me?

A: No. I wasn’t saying that my brother did it. Okay. Throughout the whole video, they’re telling me they know I wasn’t there. So if they know I wasn’t there, how do I know what happened.

. . . .

COURT: All right. Did you tell your father, yes, when you’re asked, did Luc and Tyree did [sic] this.

A: I didn’t tell him that. I did not say that Luc and Tyree did it. How would I know if they did it or not?

The prosecutor questioned Andre further:

Q: Did your father ask you, “Is it Luc?”

A: Yes.

Q: And you nodded your head affirmatively, saying yes, right?

A: Yes, but I wasn’t saying that Luc did it.

Q: I’m not asking you whether or not –

A: Okay. Yes. Yes.

At the conclusion of the proffer, the prosecutor and the judge discussed Andre’s

testimony:

[PROSECUTOR]: But clearly he asked, “Is it Luc?” . . . and he nodded affirmatively.

- 4 -

COURT: Well, he said “Yes” now. So he’s no longer saying that that’s – he’s no longer denying that that’s what he said. He’s just saying that’s not what he meant. So it’s not impeachment. Do you agree?

[PROSECUTOR]: Well, I agree, though, Judge, as long as when I ask him the questions, “Did you nod your head? It’s a yes-or-no answer. He says, “Yes I nodded my head in the affirmative.” You know, I’m not asking him for, “That’s not what I meant,” so on and so forth . . . .

Defense counsel maintained his position that the head nod was hearsay

and that the State intended to use it to prove that the defendant committed the murders.

Defense counsel argued that because Andre admitted to nodding his head, it came

down to what he meant by that gesture, which was not proper impeachment. The court ruled that the State could ask Andre certain questions about the videotape. If Andre again admitted to nodding his head, the videotape could not be used to impeach him. If

Andre denied nodding his head, then the State could impeach him with the videotape.

Once the jury returned, the prosecutor questioned Andre:

Q: Mr. Charles, you were asked by your father, “Who killed them, Andre? Luc?” And your mother, did she make a statement, “I don’t believe that”?

A: Yes.

Q: And right after that – would you agree with me that you had your head on the table, down like this (indicating), in this manner, during the portion of that video?

A: Yes.

Q: And right after that, did you lift your head and start shaking your head up and down affirmatively?

A: Yes.

. . . .

- 5 -

Q: Later on in the video, did your father ask you, “Is it Luc?”

A: Yes.

Q: And you were leaning – you were in a chair leaning up against the wall, right? And you nodded your head up and down?

A: Yes, but I told you –

Q: Is that –

A: Yes.

Q: That’s a yes?

A: Yes. Yes. Yes. Yes.

. . . .

Q: So yes to, “Is it Luc?” You said, “Yes”? [DEFENSE COUNSEL]: Objection.

A: No. No. No. No.

. . . .

[DEFENSE COUNSEL]: The issue is whether he’s shaking his head like this (demonstrating), and he said yes. He didn’t make any statements.

[WITNESS]: I did not say “Yes.” You asked me did I nod my head, and I said yes. I did not tell my dad, “Yes, Luc did it.”

COURT: All right.

[PROSECUTOR]: Judge, I am trying to clarify with him. I asked him, “Did your dad ask you, ‘Is it Luc?’ Is that a yes?” I’m not saying that he said “Yes.”

. . . .

[PROSECUTOR]: All right. So, as to that question, your dad asked you, “Is it Luc?” Right?

- 6 -

A: Yes.

Q: And you nodded your head up and down?

A: Yes.

. . . .

Q: Are you denying that you shook your head up and down?

A: No.

Q: So you’re denying that he asked you that question, but you’re admitting that on the second question that your father asked you, you nodded your head affirmatively?

A: Yes. I nodded my head, but I also nodded my head this way, too. (Demonstrating)

The State never introduced the videotape, and defense counsel chose not to cross-examine the witness.

During closing arguments, the State attempted to discuss Andre’s head nod as substantive evidence. The State argued, “[T]here was testimony as to a videotape that was running at the sheriff’s office, when he was asked . . . .” Defense counsel objected and argued that Andre’s head nod could not be used as substantive evidence because it was hearsay. The State argued that because Andre admitted to shaking his head, the nod was not impeachment evidence, and therefore, could be argued as substantive evidence. The trial court essentially agreed with the defense objection and expressed concern that hearsay testimony had already been admitted. The State then continued its closing argument without arguing Andre’s head nod any further.

The jury retired to deliberate the verdict, and they submitted three questions to the court: (1) “Andre Charles, his answer to, ‘Did Luc do it?’ “; (2) “Andre’s

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whole testimony printed out”; and (3) “Andre, have his testimony read to the jury.”

Defense counsel argued that the testimony should not be read back to the jury, but if it was, he moved that the court should also give the jury a curative instruction regarding hearsay evidence. The court denied that motion and read back a portion of Andre’s testimony. The jury returned a guilty verdict.

II. Analysis

Section 90.801(1)(c), Florida Statutes (2009), defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A “statement” for purposes of hearsay includes “[n]onverbal conduct of a person if it is intended by the person as an assertion.” § 90.801(1)(a)(2). “When an individual who is asked a question nods his or her head up and down to indicate an affirmative response, that conduct is intended to communicate a thought and is included within the definition of hearsay.” Charles W. Ehrhardt, Florida Evidence § 801.2, at 772 (2009 ed.). “Hearsay includes an out-of-court statement of a witness who testifies at trial, as well as an out-of- court statement by someone who is not a witness on the stand testifying to the statement.” Carter v. State, 951 So. 2d 939, 944 (Fla. 4th DCA 2007) (citing Ehrhardt, Florida Evidence § 801.2 (2003 ed.)). “Merely repeating a statement in the courtroom does not convert a hearsay statement into non-hearsay.” Ehrhardt, Florida Evidence § 801.2, at 769-70 (2009 ed.). “The necessary reliability of the statement is lacking because the jury was not present to observe the demeanor of the witness when the statement was originally made and there was no opportunity for cross-examination at that time.” Id.

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In this case, Andre’s head nod was an out-of-court statement introduced by the State as an affirmative response to his father’s question, “Did Luc do it?” Andre’s head nod constitutes hearsay in the form of a nonverbal assertion, and therefore, the trial court erred in admitting the statement. At one point, the State argued that the head nod served only as grounds for impeachment. However, Andre admitted nodding his head, thereby obviating the need for impeachment. Prior inconsistent statements offered to impeach the credibility of a witness are not hearsay because they are not offered to prove the truth of the prior statement but rather to show why the witness is not trustworthy. Ellis v. State, 622 So. 2d 991, 996 (Fla. 1993). Moreover, Andre’s head nod was not introduced to simply attack his credibility; the State wanted the jury to believe in the truthfulness of Andre’s prior out-of-court statement. This purpose became apparent in closing arguments when the State referred to Andre’s videotaped discussion with his father and used the head nod as substantive evidence of defendant’s guilt.

“Accordingly, the State was using the prior statement almost entirely for its substantive effect on the fact finder. At least to this extent, the hearsay rule must remain applicable.”Id.

A trial court has wide discretion concerning the admissibility of evidence; however, the boundaries of this discretion are limited by the rules of evidence. Hinojosa v. State, 857 So. 2d 308, 309 (Fla. 2d DCA 2003) (citing Welty v. State, 402 So. 2d

1159, 1162-63 (Fla. 1981)). Here, the trial court abused its discretion when it admitted

Andre’s hearsay statement because “there is a reasonable possibility that the error affected the verdict.” Knowles v. State, 848 So. 2d 1055, 1059 (Fla. 2003) (quotingState v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986)). The burden to show that error

- 9 -

was harmless remains with the State. DiGuilio, 491 So. 2d at 1139. “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id.

In this case, we cannot say beyond a reasonable doubt that the error did not affect the verdict. See id. All three inquiries from the jury pertained to Andre’s testimony, specifically Andre’s response to his father’s question, “Did Luc do it?” The judge’s rereading of Andre’s testimony magnified the error. “Whenever improper evidence becomes so prominent a feature of the trial, a court cannot find that the error was harmless beyond a reasonable doubt.” Ellis, 622 So. 2d at 998. Because the trial court erred in admitting the hearsay statement and because the State failed to show that the error was harmless, we see no alternative but to reverse for a new trial.

Reversed and remanded.

ALTENBERND and KELLY, JJ., Concur.

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	IN THE DISTRICT COURT OF APPEAL
	OF FLORIDA
	SECOND DISTRICT
ERNEST JEROME NASH, DOC #051575,	)
	)
Appellant,	)
	)
v.	)	Case No. 2D09-3825
	)
STATE OF FLORIDA,	)
	)
Appellee.	)

___________________________________)

Opinion filed February 11, 2011.

Appeal from the Circuit Court for Lee

County; Mark A. Steinbeck, Judge.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Richard M. Fishkin,

Assistant Attorney General, Tampa, for

Appellee.

KHOUZAM, Judge.

Ernest Jerome Nash appeals his judgments and sentences for trafficking

in heroin and conspiracy to traffic in heroin. Because the trial court failed to conduct an

adequate hearing pursuant to Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), we

reverse and remand for a new trial.

On the morning that jury selection was to begin, Nash’s court-appointed

counsel informed the trial court that Nash wanted to discharge counsel and hire a

private attorney. The following ensued:

THE COURT: All right. So Miss Fletcher indicates that you want to hire private counsel?

THE DEFENDANT: Yes, sir.

THE COURT: All right. I don’t understand. Tell me what it is that you want to do.

THE DEFENDANT: I need an attorney that’s gonna represent me that I think I can trust. I mean, everything is coming on. I didn’t know my court date. I got depositions that were done several months ago, I’m just getting them. I get all of the depositions of everybody testifying against me. I haven’t got everything that I need to prepare myself. You know, what’s going on?

Once I understand–I got everything I need for trial.

They’re trying to give me 25 years. That’s the rest of my life.

I need to know what’s going on.

My lawyer done told me different stories. Once they got video/they don’t got video. You know, it was a lot of confusion. I didn’t have enough time to even talk to my lawyer to know what’s going on.

Right now I’m dumbfounded because I didn’t know I’m going to trial. I get one trial date and I don’t get that trial date, and I don’t see my lawyer. I ain’t getting all the deposition[s] I need to know what’s going on in my case.

Then at the very last moment I hear stories that I beat somebody and force[d] them to go places, and that never happened–I don’t get no depositions of that. I’m getting stories [of] people coming to testify against me–I don’t get no deposition[s] of that.

- 2 -

Now I’m going to trial with an attorney and I’m facing

25 years, the rest of my life. It’s hard to even try to get stuff together, I ain’t got everything I need. I need somebody to represent me.

THE COURT: Miss Fletcher, are you prepared to go to trial today?

MS. FLETCHER: Yes, sir.

THE COURT: Anything else?

THE DEFENDANT: That’s it, sir.

THE COURT: Here are your rights, sir: You don’t have to go to trial with Miss Fletcher. You have the right to fire her. But I am finding that–she says she’s ready for trial, I believe she’s ready for trial.

What you said to me doesn’t indicate anything to rise to the level of incompetence or ineffective assistance of counsel, so I’m not going to appoint another lawyer to represent you and I’m not gonna continue the trial for you to go out and find somebody else to represent you.

Do you want to proceed with Miss Fletcher today or do you want to fire her?

THE DEFENDANT: I want to fire her.

THE COURT: So you’re gonna go to trial yourself? THE DEFENDANT: No, sir.

THE COURT: You are gonna go to trial. You’re going to trial today, sir. You’re up for trial. You’re going to trial. So do you still want to fire Miss Fletcher?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. You understand that by representing yourself you would not have an attorney representing you in this trial, do you understand that?

THE DEFENDANT: No, sir.

- 3 -

THE COURT: I just told you that.

THE DEFENDANT: I mean, if I can get another attorney, sir.

THE COURT: If you can get an attorney in the next five minutes, go for it. You’re set for trial. I’m not granting a continuance for you to go out and try to find another counsel.

This case was set for trial, the State said they were ready for trial, Miss Fletcher said she was ready for trial. You’re going to trial.

THE DEFENDANT: So you won’t give me time to get an attorney?

THE COURT: No, sir. Today is your trial date.

THE DEFENDANT: I wasn’t given a date. I didn’t know I was going to trial today. My lawyer didn’t tell me that I was going to trial today.

THE COURT: I don’t believe that, sir.

THE DEFENDANT: Sir?

THE COURT: I don’t believe you. So my question is to you, Mr. Nash: Do you want to fire Miss Fletcher and go to trial representing yourself, pro se?

THE DEFENDANT: No, sir.

Prior to voir dire, Nash’s lawyer informed the trial court that Nash told her

she was fired, and that Nash was disagreeing with her unwillingness to call any other

witnesses. The court told Nash that he had to proceed with counsel or represent himself. During the trial Nash’s lawyer noted several times that she was unable to get

any input from Nash.

Under Nelson, when a defendant seeks to discharge his court-appointed

counsel before trial, the trial court must ascertain whether the defendant is

- 4 -

unequivocally requesting counsel’s discharge and, if so, the reason for the request.

Maxwell v. State, 892 So. 2d 1100, 1102 (Fla. 2d DCA 2004).

If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

Nelson, 274 So. 2d at 258-59 (emphasis added).

Here, Nash unequivocally requested his counsel’s discharge and

complained that he was unaware of his trial date. The trial court made no inquiry of Nash’s counsel other than asking whether she was ready for trial. “Without such an inquiry, the court could not, and did not, make the findings on the record which Nelsonmandates.” Burgos v. State, 667 So. 2d 1030, 1032 (Fla. 2d DCA 1996); see Ewing v.

State, 996 So. 2d 871, 872 (Fla. 1st DCA 2008) (“When Appellant raised specific

complaints regarding his counsel’s performance, the court was obligated to inquire of

counsel regarding the complaints.”).

Moreover, given that Nash and his counsel continued to have

irreconcilable differences during the trial, we do not find that the error was harmless.

See Moultrie v. State, 679 So. 2d 25, 26 (Fla. 4th DCA 1996) (finding any error in failing

to conduct a proper Nelson inquiry to be harmless given defendant’s overwhelming

evidence of guilt and lack of evidence of irreconcilable differences). Accordingly, we

- 5 -

reverse and remand for a new trial. Our disposition on this issue renders Nash’s remaining two issues moot.

Reversed and remanded.

CRENSHAW, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge, Concurring.

Recently, this court has had a resurgence of criminal appeals in which defendants challenge the adequacy of the trial court’s Nelson hearing. This procedural error is treated as a structural or per se error that requires a new trial even when the trial court has made a good faith effort to accommodate the defendant but has failed to address all of the requirements of Nelson. This regrettably is such a case.

In the mid-1990s, this court encouraged the circuit court conference to create a section in the criminal bench book addressing Nelson and Faretta1 hearings.

See Gillyard v. State, 704 So. 2d 165, 167-69 (Fla. 2d DCA 1997) (Blue, Acting C.J., concurring) (suggesting questions for trial courts to ask defendants during a Farettahearing); Jones v. State, 658 So. 2d 122, 126-29 (Fla. 2d DCA 1995) (Altenbernd, J., concurring) (containing a plausible outline to assist trial courts with complying withNelson and Faretta). The 2003 Criminal Bench Book contained a section on Faretta

1Faretta v. California, 422 U.S. 806 (1975).

- 6 -

hearings, but I am unaware of any current outline to assist judges with Nelson hearings.

Given that the circumstances of the typical Nelson hearing are often frustrating even for the most patient and experienced trial judge, I continue to believe that a bench book colloquy would help prevent new trials.

Courtesy of David Edelstein

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MOTION AND, IF FILED, DETERMINED

		IN THE DISTRICT COURT OF APPEAL
		OF FLORIDA
		SECOND DISTRICT
DAMIEN D. FREEMAN,	)
	)
Appellant,	)
	)
v.	)		Case No. 2D09-4008
	)
STATE OF FLORIDA,	)
	)
Appellee.	)
		)

Opinion filed February 11, 2011.

Appeal from the Circuit Court for

Hillsborough County; D. Michelle Sisco,

Judge.

Damien D. Freeman, pro se.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Helene S. Parnes,

Assistant Attorney General, Tampa, for

Appellee.

VILLANTI, Judge.

Damien D. Freeman appeals the denial of his motion for postconviction

relief filed pursuant to Florida Rule of Criminal Procedure 3.850, raising seven grounds

for relief. We hold that the postconviction court erred when it failed to hold a Faretta1-

type hearing after Freeman sought to represent himself at the evidentiary hearing on

1Faretta v. California, 422 U.S. 806 (1975).

ground one of his motion. Therefore, we reverse on this basis and remand for further proceedings. This disposition renders the remainder of Freeman’s claims moot.

Freeman was convicted of one count of manslaughter with a firearm

based on events that occurred on July 18, 1997, and he was sentenced to 180 months

in prison. His direct appeal was affirmed without opinion, see Freeman v. State, 731

So. 2d 661 (Fla. 2d DCA 1999), and mandate issued on March 10, 1999.

On October 30, 2007, Freeman filed a motion for postconviction relief

based on newly discovered evidence. After receiving a response from the State, the

postconviction court ordered an evidentiary hearing on this ground, and it appointed

counsel to represent Freeman at the hearing.

At the start of the evidentiary hearing, appointed counsel told the court

that Freeman had told him that he wanted to represent himself at the hearing. Counsel noted that he and Freeman were in disagreement over whether certain witnesses should be presented at the evidentiary hearing. The court turned to Freeman and asked what “the problem” was with having appointed counsel represent him. Freeman

responded that he had not asked the court to appoint counsel for him and that “I want to

represent myself.” At that point, the following dialogue occurred:

THE COURT: Please, Mr. Freeman, don’t interrupt me. I’ve already made a determination that it is in your best interest to have [appointed counsel] represent you. He is a trained lawyer. He knows what he’s doing, and I think—and I still believe it is in your best interest to have [appointed counsel] represent you. So other than just a general desire to represent yourself, is there any other issue that you have with regards to [appointed counsel]?

MR. FREEMAN: Well, you know, I know my case better than anybody in here. I know all the facts of my case, and with that being so, even though [appointed counsel]

- 2 -

have [sic] way more experience in law than I do and I’m just a pro se inmate, you know—

THE COURT: Well, you’re not pro se now—

MR. FREEMAN: Yeah.

THE COURT: —because you have [appointed counsel] representing you.

MR. FREEMAN: Same thing. You know, I feel qualified to represent myself and this ain’t nothing but a simple evidentiary hearing. I got everything already lined up.

The only thing I need is the Court to subpoena all my witnesses for number one. . . .

. . . .

MR. FREEMAN: I want to represent myself.

THE COURT: I understand.

MR. FREEMAN: I feel it’s in my best interest to represent myself, but if the Court feel it ain’t in my best interest, then I feel even the Court should at least let me be co-counsel. I don’t see nothing wrong with that.

THE COURT: Well, you can’t be co-counsel.

MR. FREEMAN: Then I want to represent myself.

The court subsequently denied Freeman’s motion to discharge appointed counsel

because it did not find that there was a conflict of interest, “professional negligence,

unprofessional conduct, or general ineffectiveness.” Thus, the hearing proceeded with

appointed counsel representing Freeman against Freeman’s wishes.

In this appeal, Freeman contends that the postconviction court erred by

failing to hold a Faretta-type hearing after he unequivocally stated that he wanted to

discharge his court-appointed counsel and proceed pro se. We agree.

- 3 -

The supreme court has specifically addressed a postconviction

defendant’s right to waive counsel and represent himself during postconviction

proceedings. In Durocher v. Singletary, 623 So. 2d 482, 483 (Fla. 1993), the court

noted that “[c]ompetent defendants have the constitutional right to refuse professional

counsel and to represent themselves, or not, if they so choose. If the right to representation can be waived at trial, we see no reason why the statutory right to collateral counsel cannot also be waived.”2 (Citations omitted.) The court also noted

that “[r]egardless of our feelings about what we might do in a similar situation, we

cannot deny [the postconviction defendant] his right to control his destiny to whatever

extent remains.” Id. at 484.

However, the right to self-representation is not absolute. In Durocher, the

court also provided a caveat:

[W]e also recognize that the state has an obligation to assure that the waiver of collateral counsel is knowing, intelligent, and voluntary. Accordingly, we direct the trial judge forthwith to conduct a Faretta-type evaluation of [the

2We recognize that, as a noncapital postconviction defendant, Freeman does not have a statutory right to appointed counsel. See § 924.066(3), Fla. Stat. (2007) ("A person in a noncapital case who is seeking collateral review under this chapter has no right to a court-appointed lawyer."). However, "due process concerns dictate the appointment of counsel in certain postconviction proceedings." Russo v.

Akers, 724 So. 2d 1151, 1152 (Fla. 1998) (emphasis omitted). "The question in each proceeding of this nature before this Court should be whether, under the circumstances, the assistance of counsel is essential to accomplish a fair and thorough presentation of the petitioner's claims. . . . Each case must be decided in the light of the Fifth Amendment due process requirements." Graham v. State, 372 So. 2d 1363, 1365 (Fla.

1979). Regardless of the source of the trial court's authority to appoint counsel in the first instance, however, we can conceive of no reason why the reasoning of Faretta andDurocher would not apply to permit a noncapital postconviction defendant to represent himself in postconviction proceedings should he knowingly, voluntarily, and intelligently choose to do so. To hold otherwise would be to strip a small subclass of defendants, i.e., noncapital postconviction defendants, of the Sixth Amendment right of self- representation that every other criminal defendant possesses.

- 4 -

defendant] to determine if he understands the consequences of waiving collateral counsel and proceedings.

Id. at 485; see also Alston v. State, 894 So. 2d 46, 57 (Fla. 2004) (reiterating theDurocher standard for determining whether postconviction defendants may waive postconviction counsel).

Here, contrary to Durocher, the postconviction court failed to hold a hearing to determine whether Freeman’s request to represent himself was knowing, intelligent, and voluntary and whether Freeman understood the consequences of waiving collateral counsel. Instead, the court held only a de facto Nelson3 hearing, found no ineffectiveness on the part of appointed counsel, and then required Freeman to proceed with unwanted court-appointed counsel because, in the court’s opinion, it was in Freeman’s “best interest.”

While we understand the postconviction court’s concern for Freeman’s “best interests,” the court’s consideration of those interests was not determinative of Freeman’s right to represent himself. Under Faretta and Durocher, Freeman had the constitutional right to waive counsel and represent himself unless his waiver was found, after a hearing, not to be knowing, intelligent, and voluntary. Unless and until such a finding was made, Freeman’s constitutional right to self-representation applied. Thus, the postconviction court erred by denying Freeman’s unequivocal request to represent himself without holding the hearing contemplated by Faretta and Durocher.4

3Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

4We note that the de facto Nelson hearing held by the postconviction court was a proper response to Freeman’s request to discharge appointed counsel. See Nelson, 274 So. 2d at 258. And once the court found no ineffectiveness on the part of appointed counsel, it was not required to appoint substitute counsel for Freeman. Id. at

- 5 -

In support of the postconviction court’s ruling, the State argues that

Freeman was not entitled to a Faretta-type hearing because he had no constitutional

“right” to postconviction counsel. Based on Durocher, we reject this argument. If

Freeman has the right to waive representation by constitutionally required counsel at

trial, he can certainly choose not to be represented by counsel appointed largely on the

postconviction court’s discretion. See Durocher, 623 So. 2d at 483.

Alternatively, the State argues that any error in failing to conduct a

Faretta-type hearing was harmless because the postconviction court allowed Freeman

to speak at certain times during the hearing and make a “closing argument.” We

disagree because this participation was insufficient to vindicate Freeman’s right to self-

representation under Faretta. As this court explained in Goldsmith v. State, 16 So. 3d

1035, 1038 (Fla. 2d DCA 2009):

The rationale underlying the Faretta decision is that the defendant has a constitutional right to conduct his own defense without the benefit of counsel. [Faretta, 422 U.S.] at 814, 95 S.Ct. 2525. This right includes “the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence.” Id. at 818, 95 S.Ct. 2525. If a trial court improperly denies a defendant these rights, the only proper remedy is to have a new proceeding at which the defendant is permitted to exercise them. This necessarily requires a proceeding at which the defendant pro se can call and interrogate witnesses, cross-examine unfavorable witnesses, and introduce evidence.

259. However, the finding that appointed counsel was not ineffective did not permit the postconviction court to then force Freeman to proceed with unwanted appointed counsel in the face of his unequivocal request to represent himself. Instead, at that point, the court was required to hold a hearing to determine whether Freeman’s decision to represent himself was made knowingly and voluntarily and with an understanding of the consequences of that decision. See Faretta, 422 U.S. at 835.

- 6 -

Thus, the improper denial of a criminal defendant’s right to proceed without counsel is per se reversible error. Id.; see also Tennis v. State, 997 So. 2d 375, 379-80 (Fla.

2008); Fleck v. State, 956 So. 2d 548, 549 (Fla. 2d DCA 2007); Reddick v. State, 937

So. 2d 1279, 1284 (Fla. 4th DCA 2006). And a defendant whose right to represent himself has been improperly denied can have that right vindicated only by having a new proceeding at which the defendant can actually exercise his right to self-representation.

Here, while the postconviction court did allow Freeman to speak at certain points during the evidentiary hearing, it did not allow him to call and interrogate witnesses, cross-examine unfavorable witnesses, or introduce evidence. In fact, the court specifically refused to allow Freeman to call certain witnesses that he wanted to present on his own behalf. This action improperly denied Freeman his right to represent himself, and this error is not harmless.

Accordingly, we reverse and remand for further proceedings on Freeman’s motion. If Freeman persists in his request to represent himself at a new evidentiary hearing, the postconviction court must conduct a Faretta-type hearing as set out inDurocher. If, after conducting such a hearing, the court determines that Freeman has knowingly, intelligently, and voluntarily chosen to represent himself in the postconviction proceedings, the court must hold a new evidentiary hearing.

Reversed and remanded for further proceedings.

MORRIS, J., Concurs.

KHOUZAM, J., Concurs with opinion.

- 7 -

KHOUZAM, Judge, Concurring.

I agree with the majority that the trial court, under the facts of this case, should have conducted the Faretta-type evaluation described in Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993). This case appears to be a case of first impression in

Florida with respect to a defendant’s exercise of the right of self-representation after the appointment of counsel in a noncapital postconviction case. I write to explain that even though Durocher is a death penalty case involving certain statutory rights to counsel afforded to indigent death row inmates in collateral relief proceedings, its reasoning with respect to the exercise of a defendant’s right to represent himself after appointment of counsel should be equally availing in noncapital postconviction cases. Admittedly, a defendant does not have an absolute right to counsel in noncapital postconviction cases.See Russo v. Akers, 724 So. 2d 1151 (Fla. 1998). But if counsel is appointed in a noncapital postconviction case, the defendant who unequivocally expresses his desire to discharge his court-appointed counsel should not be deprived of his right of self- representation in the absence of a proper Faretta-type inquiry.

Courtesy of David Edelstein

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

EDWIN S. ZARR,	)
	)
Appellant,	)
	)
v.	)	Case No. 2D09-4240
	)
STATE OF FLORIDA,	)
	)
Appellee.	)
	)
Opinion filed February 11, 2011.
Appeal from the Circuit Court for Pinellas
County, Richard Luce and Thane Covert,
Judges.
Edwin S. Zarr, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan M. Shanahan,
Assistant Attorney General, Tampa, for
Appellee.
NORTHCUTT, Judge.

Edwin Zarr challenges the postconviction court’s denial of his motion filed

pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the court’s decision in all respects except one: the denial of Zarr’s ground two, in which he claimed his

counsel was ineffective for failing to object to an allegedly improper and nonstandard jury instruction. Relying on State v. Bouchard, 922 So. 2d 424 (Fla. 2d DCA 2006), the court denied the claim because Zarr failed to show the prejudicial effect of the instruction on the outcome at trial; the motion claimed prejudice based only on counsel’s failure to preserve the issue for appellate review. Zarr contends he should have been permitted to amend his claim and we agree. See Spera v. State, 971 So. 2d 754 (Fla.

2007). We therefore reverse the denial of ground two of Zarr’s motion and remand with directions that he be given an opportunity to amend this claim.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and VILLANTI, JJ., Concur.

Courtesy of David Edelstein

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MOTION AND, IF FILED, DETERMINED

	IN THE DISTRICT COURT OF APPEAL
	OF FLORIDA
	SECOND DISTRICT
JOHN SCIANDRA,	)
	)
Appellant,	)
	)
v.	)	Case No. 2D09-5523
	)
STATE OF FLORIDA,	)
	)
Appellee.	)
________________________________ )
Opinion filed February 11, 2011.

Appeal from the Circuit Court for

Pinellas County; Joseph A. Bulone,

Judge.

Roger D. Futerman and Melissa A.

Loesch of Law Offices of Roger D.

Futerman & Associates, Clearwater, for

Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Elba C. Martin-

Schomaker, Assistant Attorney General,

Tampa, for Appellee.

NORTHCUTT, Judge.

The State properly concedes that John Sciandra’s probation ended on

September 19, 1997, and that his order of discharge should have been entered nunc

pro tunc to that date. Accordingly, we reverse the order denying Sciandra’s motion to

correct illegal sentence. See Francois v. State, 695 So. 2d 695, 697 (Fla. 1997)

(“[W]hen a probationary period expires, the court is divested of jurisdiction over the probationer unless, prior to that time, the appropriate steps were taken to revoke or modify the probation.”); Slingbaum v. State, 751 So. 2d 89, 89-90 (Fla. 2d DCA 1999)

(“[W]here it can be determined without an evidentiary hearing that a sentence has been imposed by a court without jurisdiction, that sentence is illegal, whatever its length.”).

Reversed.

ALTENBERND and MORRIS, JJ., Concur.

Courtesy of David Edelstein

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

TODD MAYES,	)
	)
Appellant,	)
	)
v.	)	Case No. 2D10-2078
	)
STATE OF FLORIDA,	)
	)
Appellee.	)
	)
________________________________ )
Opinion filed February 11, 2011.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Anthony K. Black,

Judge.

Todd Mayes, pro se.

SILBERMAN, Judge.

Todd Mayes appeals the summary denial of his motion for postconviction

relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mayes raised twelve

grounds and two supplemental grounds regarding his convictions and sentences for

burglary of a dwelling with assault or battery, three counts of sexual battery (slight

force), attempted felony murder, and false imprisonment. We affirm without comment

the summary denial on all but one claim. As to claim twelve, we reverse and remand for the postconviction court to strike the claim with leave to amend within a reasonable time in accordance with Spera v. State, 971 So. 2d 754 (Fla. 2007).

Mayes contends that the postconviction court erred in summarily denying ground twelve without giving him an opportunity to amend. He alleged in ground twelve that counsel was ineffective in failing to impeach the victim with her deposition and statements to the police. Mayes alleged that counsel could have impeached the alleged victim “in over twenty-five different key statements given during the course of her testimony.” He further alleged that counsel could have shown on all the key issues that the victim changed her story more than once. The postconviction court determined that Mayes did not specifically allege “which statements counsel should have used for the purposes of impeachment.” The postconviction court denied the claim as conclusory, but the court did not have the benefit of Spera when it made this ruling.

Since Spera, this court has considered a claim of ineffective assistance based on counsel’s alleged failure to impeach a witness with her prior inconsistent statements in Mohr v. State, 17 So. 3d 1249 (Fla. 2d DCA 2009). The postconviction court summarily denied the claim, and this court noted that “Mohr ‘did not allege on what portions of the testimony the witness[] could have been impeached or how the failure to do so affected his trial.’ “ Id. at 1249 (alteration in original) (quoting Keevis v.

State, 908 So. 2d 552, 554 (Fla. 2d DCA 2005)). This court agreed with the postconviction court that the claim was facially insufficient but reversed and remanded for the postconviction court to strike the claim and give Mohr “leave to amend within a reasonable amount of time in accordance with Spera.” Id.; see also Delarosa v. State,

- 2 -

24 So. 3d 741, 742 n.1 (Fla. 2d DCA 2009) (noting “that even if this court had determined that ground (2)(a) was conclusory, we would be constrained to reverse and remand for the postconviction court to strike the claim with leave for Delarosa to amend within a reasonable period of time” under Spera); Monroe v. State, 13 So. 3d 1083,

1084 (Fla. 2d DCA 2009) (reversing summary denial of “conclusory and facially insufficient” claim and remanding in accord with Spera); Baldwin v. State, 978 So. 2d

257, 258 (Fla. 2d DCA 2008) (reversing summary denial of claim that counsel was ineffective in not objecting to the prosecutor’s closing argument in which the prosecutor allegedly vouched for the credibility of witnesses and remanding the “conclusory and facially insufficient” claim pursuant to Spera).

Here, the postconviction court denied the claim as “conclusory,” but the claim appears to be similar to the facially insufficient claim in Mohr. Potentially, a claim could be so conclusory and vague as to not warrant amendment, such as a bare assertion that “my counsel was ineffective for not objecting at trial.” However, Mayes’ claim specifically alleged that counsel was ineffective for failing to impeach the credibility of the victim with her deposition and prior statement to the police. Based on Mohr, we reverse the summary denial of ground twelve and remand for the postconviction court to strike the claim with leave to amend within a reasonable time in accordance with Spera.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and WALLACE, JJ., Concur.

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

Case No. 5D10-2216

WILFORD MCCLOUD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed February 11, 2011

Appeal from the Circuit Court for Brevard County,

John M. Griesbaum, Judge.

James Russo, Public Defender, and R.

Blaise Trettis, Assistant Public Defender,

Viera, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Kristen L. Davenport,

Assistant Attorney General, Daytona

Beach, for Appellee.

ORFINGER, J.

After pleading guilty to two counts of felony petit theft, Wilford McCloud was

sentenced to two years in prison, followed by two years of community control. He now

appeals, contending that pursuant to section 775.082(10), Florida Statutes (2009), he

should have received a non-state prison sanction. We disagree and affirm.

The Florida Legislature enacted section 775.082(10), Florida Statutes, which

provides:

(10) If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

Ch. 2009-63, § 1, Laws of Fla., eff. July 1, 2009. Relying on this statute, McCloud

argued at sentencing that because he had no history of violence, he did not pose “a

danger to the public,” a predicate required by the statute if a state prison sentence is to

be imposed.1 McCloud contends that only a violent, or potentially violent, offender can

present a danger to the public. We believe that construction of the statute is too narrow.

McCloud is an habitual thief, albeit one with a history of no violence. He has served two separate eighteen-month prison terms, and has accumulated twenty

misdemeanor and five felony convictions, not including the two felonies now before us.

Despite this impressive criminal record, McCloud only scored 14.2 sentence points.2 In

addition to his prior record, at sentencing, the State offered the testimony of two

Titusville police officers, who informed the court that McCloud’s larcenous behavior was

so well-known and frequent that when he was seen in a neighborhood, additional police

resources were deployed to his location.

1 We address only this issue, as it was the only issue argued below.

2 See § 921.0024, Fla. Stat. (2009).

2

While McCloud may not be a physically violent offender, he is apparently willing to steal anything and everything. We believe that “danger may, at least in some cases, encompass pecuniary or economic harm.” United States v. Reynolds, 956 F.2d 192,

192-93 (9th Cir. 1992); see United States v. Provenzano, 605 F.2d 85, 95 (3rd Cir. 1979) (explaining that danger is not limited to physical harm; concept includes opportunity to exercise substantial and corrupting influence within labor union); United

States v. Parr, 399 F. Supp. 883, 888 (W.D. Tex. 1975) (“The ‘danger to . . . the community’ provision [in the Bail Reform Act] permits consideration of the defendant’s propensity to commit crime generally, even where only pecuniary and not physical, harm might result to the community at large.”); see also United States v. Moss, 522 F. Supp. 1033, 1035 (E.D. Pa. 1981) (“It is generally agreed, of course, that a [c]ourt may refuse bail on the ground that a defendant poses a threat to the community even though the threat is pecuniary rather than physical.”), aff’d 688 F.2d 826 (3rd Cir. 1982); United States v. Miranda, 442 F. Supp. 786, 792 (S.D. Fla. 1977) (“First, it is beyond dispute that the criterion of ‘danger to the community,’ which is an explicit component of the Bail Reform Act, is not limited to the potential for doing physical harm.”).

The record supports the trial court’s implicit finding that McCloud is an habitual thief and presents a threat to property. The fact that police resources are diverted to his location also potentially endangers the public, as it diminishes police protection in other parts of the community. Thus, we conclude that the trial court did not err in sentencing McCloud to a prison sanction based on its determination that McCloud “could present a danger to the public.” There is nothing in the language of section 775.082(10) that

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suggests that the Legislature intended to limit the meaning of “danger to the public” only to persons threatening physical violence or injury.

AFFIRMED.

GRIFFIN and LAWSON, JJ., concur.

Courtesy of David Edelstein