Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

M. W., A CHILD ,

Appellant,

v.                                         CASE NO. 1D10-4569

STATE OF FLORIDA,

Appellee.

_____________________________/

Opinion filed

An appeal from the Circuit Court for Duval County.

Henry E. Davis, Judge.

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

Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, for Appellee.

PER CURIAM.

M.W. appeals a final order adjudicating her delinquent and committing herto a moderate risk facility. She argues that in departing from the Department ofJuvenile Justice’s (Department’s) recommendation of probation, the trial court didnot comply with the requirements set out in E.A.R. v. State, 4 So. 3d 614 (Fla.2009). In particular, M.W. argues the trial court failed to explain how the more

restrictive commitment, which the trial court imposed based on the same factorsand evidence considered by the Department, better served the rehabilitative needsof the child. We agree and, consequently, reverse.A trial court must conduct the following analysis before departing from theDepartment’s recommendation:(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and(2) Then logically and persuasively explain 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. at 633. The Court in E.A.R. further explained that:Simply regurgitating information provided by, and contained within, the DJJ’s comprehensive assessment and PDR does not establish acceptable statutory reasons as to why the court is “disregarding” these documents and the DJJ’s recommended disposition. Rather, such parroting merely communicates that the court concurs with the DJJ’s assessment and PDR but then, for some unexplained, unarticulated “reason,” has imposed a judicially recrafted disposition.Id. at 638.

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Although a trial court may rely on the same evidence and factors as the Department in deciding to impose a more restrictive commitment level, it must set forth its reasons for reaching a different conclusion vis-a-vis the rehabilitative needs of the child. See C.J. v. State, 923 So. 2d 553, 554 (Fla. 1st DCA 2006) (reversing where a trial court found probation inappropriate because appellant ran away from home and disregarded court orders but failed to make a finding regarding appellant’s rehabilitative needs); see also E.S.B. v. State, 822 So. 2d 579 (Fla. 1st DCA 2002) (reversing where a trial court reweighed the same evidence considered by the Department and failed to explain how appellant’s “long prior” record led it to impose moderate risk commitment as opposed to probation).In the instant case, the trial court erred because it failed to address why moderate risk commitment, rather than probation, was more suitable to address M.W.’s rehabilitative needs. The trial court’s reasons for disagreement were merely a restatement of facts already known to the Department with no explanation of why it came to a different conclusion. Accordingly, we reverse and remand to provide the trial court an opportunity to enter an order in compliance with E.A.R., or, if the court cannot, impose the probation recommended by the Department. See M.K. v. State, 4 So. 3d 1271 (Fla. 1st DCA 2009) (reversing and remanding to provide trial court an opportunity to enter an order in compliance with E.A.R. where trial court3

failed to conduct proper analysis in departing from the DJJ’s recommendation); see also C.M.H. v. State, 25 So. 3d 678, 680 (Fla. 1st DCA 2010) (same).REVERSED.WOLF, DAVIS, and HAWKES, JJ., CONCUR.

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An appeal from the Circuit Court for Leon County.

Jackie  L. Fulford, Judge.

Samuel C. Golden, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Lance Eric Neff, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant,  Samuel  C.  Golden,  challenges  an  order  striking  his  motion  toreinstate  his  petition  for  writ  of  mandamus  and  referring  him  for  disciplinaryaction.  We affirm and, at the request of appellee, the Department of Corrections(DOC), impose sanctions for abuse of the process.

On July 24, 2007, appellant filed a petition for writ of mandamus, challenging an administrative determination of guilt for a violation of Florida Administrative Code Rule 33-601.314. On June 3, 2008, the circuit court dismissed the petition, citing a November 16, 2001, order prohibiting appellant from “filing further complaints and petitions in this Circuit on his own behalf without representation of counsel or prepayment of the filing fee.” We affirmed the order dismissing the petition.

On July 6, 2009, appellant moved pro se to reinstate the petition for writ of mandamus. Observing that appellant had already been directed to refrain from further pro se filings in the Second Judicial Circuit, the court struck the motion and requested that DOC consider disciplinary measures against appellant pursuant to section 944.279, Florida Statutes (2009).It is well-settled that courts have the inherent authority and duty to limit abuses of the judicial process by pro se litigants. See In re McDonald, 489 U.S. 180, 184 (1989) (preventing petitioner, who had filed 99 extraordinary writs, from proceeding in forma pauperis when seeking future such writs, because “part of the Court’s responsibility is to see that [limited] resources are allocated in a way that promotes the interests of justice”); Peterson v. State, 817 So. 2d 838, 840 (Fla. 2002) (limiting petitioner’s ability to file in pursuance of court’s “responsibility to ensure every citizen’s right of access to the courts”); Jackson v. Fla. Dep’t of2

Corrections, 790 So. 2d 398, 400 (Fla. 2001) (holding that supreme court “has the inherent authority to limit [the] right [to represent oneself] when pro se litigation becomes so disruptive that it threatens to deny other litigants their rights”).

The trial court advised appellant that its November 2001 sanctions order was final and further ordered the clerk to close the file. Having examined records of the clerk, the court found that appellant had since opened 16 cases over a period of 5 years and that none produced a meaningful result. Appellant was not represented by counsel when he moved to reinstate the mandamus petition, nor did he prepay the filing fee; appellant thus failed to satisfy either of the exceptions to the prohibition against pro se filings set forth in the 2001 order.We are further troubled by the manner in which appellant has pursued this great volume of litigation. That appellant has disregarded a clear order of the circuit court to refrain from future pro se filings merely reinforces the frivolity of his claims. To dissuade appellant from bringing any similar such motions or pleadings, we conclude that further sanctions are appropriate. See § 944.279(1), Fla. Stat. (providing for disciplinary procedures to be initiated against “[a] prisoner who is found by a court to have brought a frivolous or malicious suit, action, claim, proceeding, or appeal in any court of this state”).AFFIRMED.WOLF, DAVIS, and HAWKES, JJ., CONCUR.

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An appeal from the Circuit Court for Escambia County.

Linda L. Nobles, Judge.

Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.

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

WETHERELL, J.

Appellant, David Devon Blackmon, seeks review of his convictions for bothpetit theft and dealing in stolen property, as well as the revocation of his probationbased upon  the new law offenses  of burglary and  theft.   Blackmon  raises  three

issues on appeal, only one of which merits discussion: whether the trial court committed fundamental error by convicting him of both petit theft and dealing in stolen property where the offenses involved the same property and arose from the same course of conduct. We affirm the other issues without further comment, and for the reasons that follow, we reverse Blackmon’s conviction for petit theft and remand with directions that the trial court vacate that conviction.On November 23, 2009, employees at W.D. Rogers Mechanical Contractor (W.D. Rogers) cut, beveled, and marked approximately 14 steel bars. At 3:30 p.m., the shop closed. When the shop reopened at 7:30 a.m. the next morning, employees discovered that the steel bars were missing. Evidence existed of a burglary: the barbed wire on top of the 6-foot chain-link fence had been pushed down, the bushes below the fence were broken, footprints were on the sides of the metal racks, and the ground showed marks where the bars had been thrown over the fence and stuck in the ground. The steel bars were later found at a local scrap yard. The scrap yard purchased the steel bars from Blackmon on November 24, 2009, at 8:02 a.m. The scrap yard paid Blackmon $61.80 for the bars. Based on the markings on the bars, W.D. Rogers confirmed that the bars sold to the scrap yard were the same bars stolen from the shop.The state charged Blackmon with burglary, petit theft, and dealing in stolen property. At trial, Blackmon testified that, on his way home from work in the early2

morning hours of November 24, he saw some steel bars lying on the side of the road; that the bars were still by the road later that morning when he walked his son to the bus stop at 6:00 a.m.; that he picked up the bars and took them to the scrap yard when they opened; and that, although he noticed the markings on the bars, he thought that the bars were simply junk. At the close of the evidence, Blackmon moved for a judgment of acquittal, arguing that the state did not present evidence to rebut this explanation for his possession of the steel bars. The trial court denied the motion.The trial court did not instruct the jury that it could not return a guilty verdict for both theft and dealing in stolen property pursuant to section 812.025, Florida Statutes (2009), and Blackmon did not request such an instruction. The jury found Blackmon guilty of both petit theft and dealing in stolen property, but acquitted him of burglary. The trial court thereafter adjudicated Blackmon guilty of both offenses. The trial court also found Blackmon in violation of his probation based on the new law offenses of burglary and theft.The trial court sentenced Blackmon to time served on the petit theft count and five years in prison on the dealing in stolen property count. Blackmon was also given a concurrent five-year sentence for the violation of probation. The prison sentence was based on a Criminal Punishment Code Scoresheet that scored3

petit  theft  as  an  additional  offense  (0.2  points).   The  lowest  permissible  prisonsentence under the scoresheet was 28.35 months.Blackmon is not precluded from challenging his dual convictions for petittheft  and  dealing  in  stolen  property  on  appeal  even  though  he  did  not  raise  anobjection below.  See Rhames v. State, 473 So. 2d 724, 727 (Fla. 1st DCA 1985)(holding that defendant not precluded from raising section 812.025 issue on appealeven though no objection was made below because, based on the prohibition in thestatute, conviction of both theft and dealing in stolen property would be analogousto being convicted of nonexistent crime); see also Aversano v. State, 966 So. 2d493, 496 (Fla. 4th DCA 2007) (stating that it was fundamental error for the trialcourt not to instruct the jury on its obligation under section 812.025). Our review of this issue is de novo. See Croom v. State, 36 So. 3d 707, 709 (Fla. 1st DCA2010) (stating that de novo standard of review applies to claims of fundamentalerror); Beckham v. State, 884 So. 2d 969, 970 (Fla. 1st DCA 2004) (same).Section 812.025, Florida Statutes, provides that:a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.In construing this statute, the Florida Supreme Court explained:

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The linchpin of section 812.025 is the defendant’s intended use of the stolen property. The legislative scheme allows this element to be developed at trial and it is upon this evidence that the trier of fact may find the defendant guilty of one or the other offense, but not both.Hall v. State, 826 So. 2d 268, 271 (Fla. 2002). The state concedes that the trial court fundamentally erred in convicting Blackmon of both petit theft and dealing in stolen property. The state contends that the proper remedy for this error is for the petit theft conviction to be vacated. Blackmon, however, argues that the properremedy is a new trial.In support of his argument, Blackmon relies on Kiss v. State, 42 So. 3d 810(Fla. 4th DCA 2010). In that case, a jury found the defendant guilty of three counts of dealing in stolen property and one count of grand theft of the same property and in the same course of conduct. Id. at 811. On appeal, the defendant

argued that the trial court fundamentally erred by failing to instruct the jury that,pursuant to section 812.025, it could not return a guilty verdict on both grand theftand dealing in stolen property. Id. The defendant argued that the trial court did not cure this error by adjudicating him guilty of only the dealing in stolen property count and, therefore, he was entitled to a new trial. Id. The Fourth District agreed and remanded for a new trial. Id. The court reasoned that the failure to instruct thejury on its obligation under section 812.025 prejudiced the defendant because, ifproperly instructed, the jury could have found the defendant guilty of only theft,

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the lesser offense. Id. at 813; see also id. at 811 (quoting Anderson v. State, 2 So. 3d 303, 304 (Fla. 4th DCA 2008) (Klein, J., specially concurring) (“If the jury had followed the statute, and was required to choose, it might well have returned a verdict only on the theft charge.”)). Accord Aversano, 966 So. 2d at 497 (stating in dicta that “Hall and a plain reading of [section 812.025] make it clear that the state was not entitled to have a jury convict [the defendant] of both [grand theft and dealing in stolen property] counts and then have the trial court adjudicate her guilty of grant theft”).Kiss certified conflict with the Fifth District’s decision in Ridley v. State, 407 So. 2d 1000 (Fla. 5th DCA 1981), where the court held that the proper remedy for the trial court’s failure to instruct the jury that it could not return guilty verdicts for both trafficking in stolen property and grand theft arising out of the same scheme or transaction was to vacate the conviction for the lesser offense. This court followed Ridley in Alexander v. State, 470 So. 2d 856 (Fla. 1st DCA 1985), and we have continued to adhere to that decision. See, e.g., Drew v. State, 861 So. 2d 110 (Fla. 1st DCA 2003); Day v. State, 793 So. 2d 68 (Fla. 1st DCA 2001); Golden v. State, 688 So. 2d 419 (Fla. 1st DCA 1997); Schummer v. State, 657 So. 2d 3 (Fla. 1st DCA 1995); Gray v. State, 611 So. 2d 100 (Fla. 1st DCA 1992); Day v. State, 531 So. 2d 426 (Fla. 1st DCA 1988).6

In Alexander, the defendant was charged with grand theft of an outboard motor and trafficking in stolen property for selling the same motor. See 470 So. 2d at 856. The jury returned a guilty verdict on both counts. Id. At the sentencing hearing, the state agreed with the defendant’s argument that the trial court erred in failing to instruct the jury that it could only return a guilty verdict on one of the counts. Id. at 857. As a result, the trial court vacated the adjudication of guilt as to the grand theft charge and sentenced the defendant only on the trafficking charge. Id. On appeal, this court expressly rejected the same argument that Blackmon presents in this case, i.e., that the failure to instruct the jury that it cannot return a guilty verdict for both theft and dealing in stolen property can only be corrected by the award of a new trial. Id. In doing so, we quoted from Ridley, where the court observed that as a result of the trial court’s failure to properly instruct the jury, “this court, rather than the jury, must now relieve appellant of one of the two convictions . . . .” Id. (quoting Ridley, 407 So. 2d at 1002).There is some attraction to the Fourth District’s reasoning in Kiss because section 812.025, by its terms, imposes an obligation on the trier of fact (here, the jury), not the trial court. Nevertheless, we disagree with Kiss that the proper remedy for the trial court’s failure to instruct the jury on section 812.025 is a new trial. Rather, consistent with Alexander, we conclude that the proper remedy is for the conviction of the lesser offense to be vacated. Indeed, as the Fourth District7

observed in a pre-Kiss decision, this is the remedy “routinely imposed under these circumstances.” Anderson, 2 So. 3d at 304 (citing prior cases from the Second, Fourth, and Fifth Districts). In our view, this remedy better respects the jury’s determination that the state met its burden to prove the greater offense and also avoids the need to speculate what verdict the jury might have returned had it been required to choose between the greater and lesser offenses. Moreover, in this case, we have no trouble concluding that the jury would have found Blackmon guilty of dealing in stolen property had it been required to choose between that offense and petit theft because the evidence established that Blackmon did not steal the bars for his personal use, but rather that he sold the stolen bars at his earliest opportunity. See Hall, 826 So. 2d at 271 (explaining that the crime of dealing in stolen property is directed towards thieves who knowingly deal in the redistribution of stolen property to others, whereas the theft statute is directed towards those persons who steal for personal use and for who redistribution is merely incidental to the normal use of the property).The remedy of vacating the lesser offense is also consistent with the remedy directed by the Florida Supreme Court in Hall. The defendant in that case was charged with, among other things, grand theft and dealing in stolen property. See 826 So. 2d at 269. The defendant pled nolo contendere to those charges. Id. The trial court accepted the plea and adjudicated the defendant guilty of both offenses.8

Id. On appeal, the defendant argued that the trial court erred when it adjudicatedhim guilty of both offenses in violation of section 812.025.  Id. The Fourth Districtaffirmed, concluding that the statute did not apply when the defendant entered aplea of nolo contendere.  Id. at 270.On  review,  the  Florida  Supreme  Court  quashed  the  Fourth  District’sdecision.  Id. at 272.  The court reasoned that:Section 812.025 allows the State to charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts, but the trier of fact must then determine whether the defendant is a common thief who steals property with the intent to appropriate said property to his own use or to the use of a person not entitled to the use of the property or whether the defendant traffics or endeavors to traffic in the stolen property. . . . Just as the trier of fact must make a choice if the defendant goes to trial, so too must the trial judge make a choice if the defendant enters a plea of nolo contendere to both counts. . . . Thus, we find that section 812.025 prohibits a trial court from adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct pursuant to a plea of nolo contendere.Id. at  271.    Notably,  the  supreme  court  did  not  construe  section  812.025  topreclude  a  defendant  from  entering  pleas  to  both  theft  and  dealing  with  stolenproperty;  rather,  the  court  construed  the  statute  to  prohibit  the  trial  court  fromadjudicating a defendant guilty of both offenses.  As a result, the court remandednot to allow the defendant to withdraw his pleas, but rather with directions that

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either the grand theft count or the dealing in stolen property count be reversed and that the defendant be resentenced on the remaining count. Id. at 272.Accordingly, pursuant to Alexander, and consistent with Hall, we reverse Blackmon’s conviction for petit theft and remand with directions that the trial court vacate that conviction. Resentencing is unnecessary in this case because the record shows that the trial court would have imposed the same sentence for dealing in stolen property under a corrected scoresheet. See State v. Anderson, 905 So. 2d 111, 115-16 (Fla. 2005) (holding that scoresheet error requires resentencing unless record conclusively shows that same sentence would have been imposed using correct scoresheet). We also certify conflict with Kiss regarding the proper remedy when, contrary to section 812.025, the defendant is convicted of both theft and dealing in stolen property.AFFIRMED in part; REVERSED in part; REMANDED with directions. DAVIS and LEWIS, JJ., CONCUR.10

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

GREG MATTOX,

Appellant,

v.                                               CASE NO. 1D09-6426

STATE OF FLORIDA,

Appellee.

_______________________/

Opinion filed March 31, 2011.

An appeal from the Circuit Court for Duval County.

David M. Gooding, Judge.

Nancy A. Daniels, Public Defender, Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant challenges the trial court’s revocation of his community controland  subsequent  sentence  of  15 years’  imprisonment.   For  the  reasons  explainedbelow, we reverse and remand to the trial court for additional findings.The State filed an affidavit alleging Appellant violated five conditions of hiscommunity control, three of which were directly related to Appellant’s convictionof armed robbery.  This court reversed that conviction, however, after determining

that the State’s confession of error was supported by the record and law. See Mattox v. State, 1D09-6430 (Fla. 1st DCA March 16, 2011). Consequently, there was no basis for revoking Appellant’s community control for those alleged violations.One of the remaining probation violations concerned Appellant’s failure to comply with certain financial obligations. The State concedes error because it did not present any competent, substantial evidence to support the allegation and the trial court did not make the requisite findings that Appellant had the ability to pay. We therefore reverse the trial court’s revocation of community control on this ground. See McPherson v. State, 530 So. 2d 1095, 1098 (Fla. 1st DCA 1988) (holding “[a]bsent a finding that a defendant has the ability to pay, probation cannot be revoked based on the failure to pay court costs.”).The remaining basis for revocation of community control concerned Appellant’s failure to remain confined to his residence during the required hours, specifically, at the time the armed robbery took place. Based upon the parties’ agreement, evidence and testimony from the trial was made a part of the record for purposes of the evidentiary hearing on the community control. Appellant’s trial testimony confirms that he was not at his residence during the time the robbery occurred, and he acknowledged this was a violation of his community control. It is not clear from the record, however, whether the trial court would have revoked2

Appellant’s community control based on this violation alone and, if so, would have imposed the same sentence. See Marzendorfer v. State, 16 So. 3d 957, 958 (Fla. 1st DCA 2009) (stating the general rule requires remand when it is unclear from the record whether the trial court would have revoked the appellant’s probation and imposed the same sentence based solely on the condition of which the appellate court found appellant in violation); see also Stevens v. State, 823 So. 2d 319, 322 (Fla. 2d DCA 2002) (holding that although there was sufficient evidence defendant did not complete the required monthly hours of community service, case remanded to determine whether the court would have revoked probation solely on this violation).Consequently, we REVERSE and REMAND for a determination by the trial court as to whether it would revoke Appellant’s probation based on this violation alone.

VAN NORTWICK, THOMAS, and MARSTILLER, JJ., CONCUR.3

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An appeal from the Circuit Court for Levy County.

Joseph E. Smith, Judge.

Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.

ROBERTS, J.

The appellant, Allen Mack, was tried by jury and convicted of one count ofkidnapping and one count of felony battery as a repeat offender.   The appellant

raises  several  issues  on  appeal,  one  of  which  warrants  reversal.   The  appellantargues that the trial court erred in denying his motion for mistrial after a State witness made a constitutionally impermissible comment upon his right to remain silent. We agree and reverse.

On direct examination, the lead investigator in the appellant’s case testified to the following. Part of his investigation in the case involved tracking down theappellant, who was a suspect.   He conducted surveillance and followed leads forapproximately two weeks before apprehending the appellant at the residence of a friend. The investigator went to the residence with other law enforcement officers who kept a perimeter around the residence for approximately two and a half hours. After the investigator finally gained access, he located the appellant in a locked bedroom. When the prosecutor asked the investigator whether the appellant made

attorney, and he didn’t want to talk anymore.Defense counsel immediately objected to the comment, and the trial court sustained the objection. Defense counsel moved for a mistrial on the ground the comment was an impermissible comment on the appellant’s right to remain silent. Although a curative instruction was briefly discussed, none was given. The trial court took the motion under advisement, but did not deny the motion until after jury deliberations. In denying the motion, the trial court found that, while inappropriate, the comment did not rise to the level of being so prejudicial as to warrant a mistrial.Comments on a defendant’s right to remain silent are high-risk errors because there is a substantial likelihood that they will vitiate the defendant’s right to a fair trial. See State v. DiGuilio, 491 So. 2d 1129, 1136 (Fla. 1986) (holding comments on the defendant’s right to remain silent are reviewed under the harmless error test). Any comment that is “fairly susceptible” to interpretation as a comment on the defendant’s right to remain silent will be treated as such. Id. at 1135. Comments on a defendant’s request for an attorney have been considered a comment on the exercise of the right to remain silent. See e.g., Shingledecker v. State, 734 So. 2d 483 (Fla. 4th DCA 1999).The  due  process  clause  of  the  Florida  Constitution,  Article  I,  section  9,guards against comments on a defendant’s post-arrest silence regardless of whether 3

Miranda warnings have been given. See State v. Hoggins, 718 So. 2d 761, 770 (Fla. 1998). In Hoggins, the Court explained that “post-arrest silence is not limited to silence which occurs after the arresting officer informs the defendant that he or she is under arrest” in that it “also includes silence which occurs at the time of arrest.” Id. at 767. See also Ash v. State, 995 So. 2d 1158 (Fla. 1st DCA 2008).In Ash, an officer testified that he went to the defendant’s apartment for the purpose of arresting him and asked the defendant if they could talk some more to which the defendant replied that he had nothing to say. Id. The defendant was then placed under arrest. Id. This Court held the officer’s comment related to the defendant’s silence at the time of his arrest; therefore, it fell within the Hoggins proscription. Id. at 1159. Because the constitutional violation was not harmless, the defendant’s conviction was reversed. Id.Likewise, in the instant case, the investigator’s testimony related to the appellant’s silence at the time he was arrested and was a constitutional violation. See id. We are unable to conclude that this improper comment was harmless beyond a reasonable doubt; therefore, the appellant’s conviction is REVERSED and the case is REMANDED for a new trial.Because we are remanding for a new trial, we decline to address the appellant’s other issues, including his objection to the admission of a 911 tape on both hearsay and confrontation clause grounds.4

CLARK and WETHERELL, JJ., CONCUR.5

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MARLON OLIVERA,

Appellant,

v.                                        CASE NO. 1D09-1315

STATE OF FLORIDA,

Appellee.

_____________________________/

Opinion filed March 31, 2011.

An appeal from the Circuit Court for Leon County.

Angela C. Dempsey, Judge.

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

Pamela Jo Bondi, Attorney General and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.

CLARK, J.

Marlon Olivera appeals his convictions and sentence for sexual battery onvarious grounds, two of which merit discussion. For the reasons explained below, the judgment and sentence are affirmed.The information charged Appellant with several counts of sexual battery, each specifying the method as penetration with no mention of union. The statepresented evidence of penetration and argued only that method of sexual battery.

The defense did not dispute the method of sexual battery or offer contrary evidence as to the method, but argued that the jury might find that the acts alleged never occurred or that the victim consented.

At the charging conference, defense counsel agreed to the jury instructions and offered no objection to the standard instruction describing the act of sexual battery as “an act . . . in which the sexual organ of the defendant penetrated or had union with” the victim’s vagina. The trial court instructed the jury accordingly, including the alternatives “penetrated or had union with.” The jury’s verdicts of guilty for the sexual battery charges were general verdicts with no indication whether the jury found that Appellant committed the act by penetration or union.

At the sentencing hearing, defense counsel objected to the criminal punishment code scoresheet because it included 80 points for “sex penetration” for each of the three counts in the Victim Injury section. Counsel did not argue that penetration had not been proved or found by the jury, but argued that penetration could not constitute victim “injury” when Appellant was not convicted of the aggravated battery charge. The trial court rejected the objection and sentenced Appellant within the scoresheet range and far below the statutory maximum sentence. Appellant again challenged the scoresheet points in his motion to correct illegal sentence, this time on the grounds that the jury’s general “guilty” verdict did not specify the method of sexual battery and the jury made no separate finding that2

the sexual batteries were committed by “penetration.” After conducting a hearing on the motion, the trial court denied relief.Because jury instructions are subject to the contemporaneous objection rule, see Fla. R. Crim. P. 3.390, unpreserved error in a jury instruction may be reviewed on appeal only if fundamental error occurred. Insko v. State, 969 So. 2d 992 (Fla. 2007); Reed v. State, 837 So. 2d 366, 370 (Fla. 2002). Fundamental error is defined as error which “goes to the essence of a fair and impartial trial, error so fundamentally unfair as to amount to a denial of due process.” Sparks v. State, 740 So. 2d 33, 35 (Fla. 1st DCA 1999). The fundamental error exception to the contemporaneous objection rule occurs “only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Joyner v. State, 41 So. 3d 306 (Fla. 1st DCA 2010), and cases cited therein.Appellant contends that the trial court’s use of the standard instruction for sexual battery was fundamental error because the phrase “penetrated or had union with” gave the jury the option of convicting Appellant of sexual battery via “union” when the information charged only sexual penetration. Conviction of the uncharged form of sexual battery could not be ruled out by the jury’s general verdict of guilty.

While Appellant is correct that the opinion in Eaton v. State, 908 So. 2d 3

1164 (Fla. 1st DCA 2005) recognized a per se rule of fundamental error under these circumstances, the rule has been modified by subsequent case law. In State v. Weaver, 957 So. 2d 586 (Fla. 2007), the Florida Supreme Court held that where a jury instruction erroneously includes “an element of an offense that the State does not argue is present and about which it presents no evidence,” the error “is not pertinent or material to what the jury must consider in order to convict.” State v. Weaver, 957 So. 2d at 588, 589 (citations omitted). The Court held that when a jury is instructed alternatively, one alternative is not charged, and the state neither relies on that element nor presents any evidence thereon, the jury’s general verdict may be presumed to rest on “the elements on which the State actually presented evidence, on which the State based its arguments, and which the defendant contested at trial.” State v. Weaver, 957 So. 2d at 589. Accordingly, in Weaver, instructing the jury on the two forms of battery — when the charge, evidence, and argument by the State concerned only one method — did not rise to the level of fundamental error.This contraction of the fundamental error exception was applied to the “penetration or union” instruction for lewd or lascivious battery in Ross v. State, 31 So. 3d 858 (Fla. 1st DCA 2010). There, the evidence and argument at trial made it clear to the court that the jury did not convict the appellant based on the uncharged theory of sexual union. Only when there is reason to believe the4

conviction is for an offense not charged, as when the jury’s verdict specifically convicts the defendant of the uncharged form of the offense, will the fundamental error exception be justified due to a violation of the defendant’s due process rights. Jaimes v. State, ___ So. 3d ___, 35 Fla. L. Weekly S710, 2010 WL 4977507 (Fla. Dec. 9, 20l0).The record in this case shows that sexual battery by “union” was never at issue, either in the charging document, proof offered, or argument of counsel. Accordingly, Appellant has failed to establish that the standard jury instruction resulted in a conviction for an uncharged offense constituting fundamental error in this case. Because the challenge to the jury instruction was not preserved for appeal by a contemporaneous objection, it is not properly before this court.Considering the criminal punishment code scoresheet, the penetration points assessed are not a statutory sentence enhancement or statutory mandatory minimum sentence. These points did not alter the degree of felony for the sexual batteries charged and of which Appellant was convicted. As was the case in Neira v. State, 847 So. 2d 1134, 1136 (Fla. 4th DCA 2003), the points resulted only in “placement in the scoresheet cell which set forth a range of sentence within the maximum sentence allowed for a second degree felony.” Accordingly, the trial judge was allowed to find “penetration” by a preponderance of the evidence presented at trial and no specific jury finding of penetration was required. Robles5

v. State, 952 So. 2d 1210 (Fla. 5th DCA 2007). In the instant case, the evidence of penetration was uncontroverted. Accordingly, the court’s assessment of penetration points was not erroneous.

AFFIRMED.VAN NORTWICK and LEWIS, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MONTEZ ANDERSON,

Appellant,

v.                                      CASE NO. 1D09-411

STATE OF FLORIDA,

Appellee.

_____________________________/

Opinion filed March 31, 2011.

An appeal from the Circuit Court for Leon County.

Angela C. Dempsey, Judge.

Michael Ufferman, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Michael T. Kennett, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Montez  Anderson,  Appellant,  challenges  his  conviction  and  sentence  forattempted second-degree murder. We reverse and remand for a new trial becausethe trial court fundamentally erred in instructing the jury that intent to kill was anelement of attempted manslaughter by act, which was the lesser-included offense

one step removed from the crime of which Appellant was convicted. See State v.Montgomery, 39 So. 3d 252, 258-60 (Fla. 2010); Lamb v. State, 18 So. 3d 734,735  (Fla.  1st  DCA  2009);  Herring  v.  State,  43  So.  3d  823,  824  (Fla.  1st  DCA2010).Our  reversal  based  on  the  erroneous  attempted  manslaughter  instructionrenders  Appellant’s  remaining  arguments  moot.  However,  we  will  address  oneadditional issue because it is likely to arise again at the new trial. Below, Appellantwas charged with attempted first-degree murder, and he requested instructions onaggravated battery and simple battery, among other crimes, as permissive lesser-included  offenses  of  the  charged  offense.  The  trial  court  denied  the  requestedinstructions. We conclude that the trial court should have instructed the jury onaggravated battery and simple battery for the reasons that follow.In charging Appellant with attempted first-degree murder, the State made thefollowing allegations:On August 14, 2007, Montez Anderson and Lamonte Herring did unlawfully attempt to kill a human being, Kenneth A. Moore, by shooting with a firearm, and the attempted killing was perpetrated from or with a premeditated design or intent to effect the death of Kenneth A. Moore, and in the course of committing the attempted murder, carried and actually possessed and discharged a firearm inflicting great bodily harm, contrary to [s]ections 777.04(4)(b), 782.04(1)(a)1[,] and 775.087(1)(a)[,] Florida Statutes.At  trial,  the  State  presented  evidence  from  which  the  jury  could  conclude  thatAppellant shot at the victim, causing a gunshot wound. 2

Because the applicability of a permissive lesser-included offense is a purely legal issue, our review is de novo. See Williams v. State, 957 So. 2d 595, 598 (Fla. 2007). A necessarily lesser-included offense is one for which the elements are always subsumed by the elements of the greater offense. Carle v. State, 983 So. 2d 693, 695 (Fla. 1st DCA 2008). In contrast, a permissive lesser-included offense is one that may or may not be applicable, depending on the charging document and the evidence presented. Amado v. State, 585 So. 2d 282, 282 (Fla. 1991). The Florida Supreme Court has explained that a permissive lesser-included offense exists “when ‘the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been.’” Williams, 957 So. 2d at 598 (citations omitted) (alterations in original). If this condition is met and the evidence adduced at trial establishes the elements of the lesser-included offense, then the trial court must instruct the jury on that offense upon request. Khianthalat v. State, 974 So. 2d 359, 360 (Fla. 2008).Aggravated battery, the first requested lesser-included offense, is statutorily defined as follows:(1)(a) A person commits aggravated battery who, in committing battery:1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or3

Uses a deadly weapon. 784.045, Fla. Stat. (2007). Here, the facts alleged in the information directly supported the elements of aggravated battery by stating that Appellant inflicted great bodily harm with a firearm while intending to cause the victim’s death. State v. Johnson, 601 So. 2d 219, 220-21 (Fla. 1992) (holding that it was proper to instruct the jury on aggravated battery as a permissive lesser-included offense of attempted first-degree murder where the State alleged in the information and presented evidence that the defendant shot the victim in an attempt to kill him); see Andrews v. State, 679 So. 2d 859, 859 (Fla. 1st DCA 1996) (acknowledging that aggravated battery is a permissive lesser-included offense of first-degree murder when the information sufficiently alleges commission of aggravated battery either by causing great bodily harm or by using a deadly weapon). Based on those allegations and the evidence adduced at trial, the court should have instructed the jury on aggravated battery. Simple battery, the second requested lesser-included offense, consists of (1) actually and intentionally touching or striking another person against his or her will or (2) intentionally causing bodily harm to another person. § 784.03(1)(a), Fla. Stat. (2007). Here, the allegations of the information and the proof adduced at trial directly supported a finding that Appellant intentionally caused bodily harm to the victim. The fact that the evidence also supported a conviction for a much greater4

offense did not obviate the need for honoring Appellant’s request that the jury be instructed on simple battery. See Amado, 585 So. 2d at 283 (holding that the trial court reversibly erred in depriving the jury of its pardon power by refusing to instruct the jury on simple possession as a lesser-included offense of trafficking in cocaine where there was overwhelming evidence that the amount of drugs the defendant possessed exceeded the amount required for a trafficking conviction).

In sum, we reverse for a new trial based on the Montgomery issue and note that, at the new trial, the court should instruct the jury on aggravated battery and simple battery as lesser-included offenses of attempted first-degree murder if those instructions are requested.REVERSED and REMANDED.VAN NORTWICK, LEWIS, and ROBERTS, JJ., CONCUR.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

VERNELL ROBINSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-817

[March 30, 2011]

CIKLIN, J.

Vernell Robinson appeals his conviction and sentence for possession of more than twenty grams of cannabis. Robinson argues that the trial court erred by denying Robinson’s motion for judgment of acquittal and by excluding the testimony of Robinson and his brother. The trial judge excluded the testimony because it found Robinson had failed to give the state notice of his intent to claim an alibi. Robinson, however, was not required to file a notice of alibi in this case. Robinson’s brother was not presenting an “alibi” as contemplated by the applicable rule but rather a general denial of criminality and testimony that Robinson simply was not present at the crime scene. Robinson was not required to notify the state of his own alibi testimony. Because the excluded testimony went to the very heart of Robinson’s defense and resulted in a deprivation of his right to be heard in his own defense, we find that this error was not harmless, and reverse and remand for a new trial.Robinson was charged by information with three counts relating to possession of controlled substances. Counts I and III alleged possession of cocaine and cannabis. Count II charged Robinson with possession of cannabis with intent to sell. Before trial, the state nolle prossed counts I and III.At a jury trial, Hollywood Police Officer Gregory Forsyth and Detective Robert Wolfkill both testified that during the early morning hours of February 23, 2006, they were in separate unmarked vehicles conducting surveillance on the residence of Robinson’s parents when they observed Robinson exit the residence and approach a garbage can. The officers

testified that Robinson first looked all around. He then lifted the lid of the garbage can, took out a white plastic trash bag, removed a bag from under his shirt, put the bag in the garbage, and then replaced the white trash bag on top. Subsequently, Robinson turned and went back into the house. After the officers did not see anyone else approach the garbage can, they went to investigate and found a gallon-size Ziploc bag containing a green leafy substance under the white plastic bag inside the garbage can. The substance was later identified as 382 grams of cannabis.After the state rested its case, defense counsel moved for a judgment of acquittal, arguing that the state’s evidence was not inconsistent with Robinson’s disposing of marijuana in the trash to keep it from falling into the hands of children.After the trial court denied Robinson’s motion and prior to defense counsel presenting Robinson’s defense, the state moved to “exclude the testimony of defense witnesses.” The state’s grounds were relevancy and failure to give notice of alibi. Defense counsel proffered that Robinson’s brother, Dion Robinson, whose name was on the defense witness list, would testify that he was at their parents’ house in the early morning hours of February 23, 2006, and that Robinson was not there at the time. The trial court ruled that Dion Robinson could testify as to his observations but not to the “alibi” that the defendant was not there. Defense counsel limited her questioning of Robinson’ s brother accordingly.Subsequently, Robinson took the stand and testified that he could not have been the person who approached the garbage can and threw something away that morning as he “wasn’t even there.” The state objected again to Robinson’s presenting an alibi without giving notice. Following a bench conference, the trial court said in front of the jury, “Let’s go. Finish up.” The trial court never instructed the jury to disregard Robinson’s previous testimony.The jury found Robinson guilty of the lesser included offense of possession of more than twenty grams of cannabis. The trial court entered a final judgment based on this verdict and sentenced Robinson to the maximum five years for the third-degree felony conviction.Judgment of AcquittalRobinson’s first argument on appeal is that the trial court erred in denying his motion for judgment of acquittal. “A de novo standard of

2

review applies in reviewing a motion for judgment of acquittal.” Richards v. State, 37 So. 3d 925, 926 (Fla. 4th DCA 2010) (citing Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002)). “In moving for a judgment of acquittal, a defendant admits the facts in evidence and every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence. A court should grant a motion for judgment of acquittal only if ‘the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.’” Id. (citations omitted).We have previously recognized that temporary control of contraband for the purpose of legal disposition by throwing it away, destroying it, or giving it to police can be a valid defense to the crime of possession of a controlled substance. See Ramsubhag v. State, 937 So. 2d 1192, 1194– 95 (Fla. 4th DCA 2006).In Stanton v. State, 746 So. 2d 1229 (Fla. 3d DCA 1999), the Third District reversed a conviction for possession of cocaine after concluding that the evidence was legally insufficient to support the conviction. Id. at 1229–30. The undisputed fact in that case was that the defendant had approached a uniformed police officer and turned over a cocaine rock. The court held that even considering the disputed facts, the evidence was legally insufficient because the court was “unable to see any plausible explanation for this act, other than, as [the] defendant said, to turn it over to proper authorities and offer to assist in the apprehension of the drug dealer.” Id. at 1230.The facts here, however, are distinguishable from Stanton. Here, the police officers observed Robinson exit his parents’ house at 3 a.m. with a bag or package hidden underneath his shirt. They saw him look around carefully as though to make sure no one was watching him, remove a white trash bag from the garbage, carefully place what he had hidden beneath his shirt into the canister, and then put the white trash bag back on top. Under these facts, there are “plausible explanation[s] for this act” other than that Robinson was trying to legally dispose of marijuana over which he had only temporary control. For example, Robinson may have placed th e marijuana in the trash can as a prearranged drop off spot as part of a drug transaction. Or Robinson may have placed it there as a temporary hiding place. Thus, considering the evidence in a light most favorable to the state, the state presented sufficient evidence to establish a prima facie case based on both actual

3

and constructive possession.¹ Therefore, we affirm the trial court’s denial of Robinson’s motion for judgment of acquittal.Notice of AlibiRobinson also argues that the trial court erred when it limited the testimony of both his brother and himself because of Robinson’s failure to provide notice of alibi. We agree.The trial court excluded Robinson’s brother’s testimony based on the state’s assertion that Robinson had failed to file a notice of intent to rely on an alibi as required by Florida Rule of Criminal Procedure 3.200.² Robinson’s brother, however, was not an alibi witness as contemplated by the rule. Rule 3.200 requires that a defendant include in his or her written notice “specific information as to the place at which the defendant claims to have been at the time of the alleged offense.” Fla. R. Crim. P. 3.200.Robinson’s brother, however, was not going to testify as to Robinson’s location (or whereabouts) at the time of the offense. Thus, Robinson’s brother was not an alibi witness, and the trial court erred in sustaining the state’s objection to his testimony. See State ex rel. Mitchell v. Walker, 294 So. 2d 124, 127 (Fla. 2d DCA 1974) (“An ‘alibi,’ as contemplated by rule 3.200, necessarily means that the defendant will attempt

¹ As the jury only convicted Robinson of the lesser included offense of possession, we do not need to analyze whether the evidence was sufficient to prove the “intent to sell” element of the charged crime.² Florida Rule of Criminal Procedure 3.200 reads in pertinent part:On the written demand of the prosecuting attorney, . . . a defendant in a criminal case who intends to offer evidence of an alibi in defense shall . . . file and serve on the prosecuting attorney a notice in writing of an intention to claim an alibi, which notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or the defendant’s attorney, the names and addresses of the witnesses by whom the defendant proposes to establish the alibi. . . . If a defendant fails to file and serve a copy of the notice as herein required, the court may exclude evidence offered by the defendant for the purpose of providing an alibi, except the defendant’s own testimony. . . .Fla. R. Crim. P. 3.200 (emphasis added).

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affirmatively to establish not only that he was not at the scene of the crime involved but that, in fact, at the time thereof he was elsewhere, at a particular place sufficiently distant from the scene of the crime, so that he could not possibly have been present at its perpetration.” (footnote and citation omitted)).The trial court additionally erred in effectively sustaining the state’s objection to Robinson’s testifying on his own behalf that he was not at his parents’ house at the time the officers made their observations. A defendant may testify to his own activities without filing a notice of alibi if the defendant himself intends to be the sole alibi witness. See Fla. R. Crim. P. 3.200 (“If a defendant fails to file and serve a copy of the notice as herein required, th e court may exclude evidence offered b y the defendant for the purpose of providing an alibi, except the defendant’s own testimony.” (emphasis added)); White v. State, 356 So. 2d 56, 57 (Fla. 4th DCA 1978). Furthermore, as previously indicated, Robinson was not presenting an “alibi” as contemplated by rule 3.200 because he was only testifying that he was not at the scene of the crime. See Mitchell, 294 So. 2d at 127.Unfortunately, the state further compoun d e d th e error by emphasizing during closing arguments that Robinson took the stand but “didn’t say anything.” See Morgan v. State, 700 So. 2d 29, 30–31 (Fla. 2d DCA 1997) (“This error was further compounded by the prosecutor’s closing remarks. . . . The state’ s improper comments created the impression that [the defendant] had asserted a defense and then failed to prove that defense.”).In this case, Robinson’s theory of defense was misidentification. With Robinson’s brother prevented from testifying that Robinson was not at their parents’ house that evening and with defense counsel unable to rebut the state’ s contention during closing that Robinson ha d not testified that he was not there, Robinson was prevented from properly asserting his defense. A s such, under the facts of this case, the exclusion of the testimony was not harmless. Accordingly, we reverse for a new trial.We have considered Robinson’s remaining point on appeal and reject it without further discussion.Reversed and remanded for a new trial.POLEN and LEVINE, JJ., concur.

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* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. 06-3681 CF10A.Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.Pamela   J o   Bondi,   Attorney    General,    Tallahassee,    a n d  Heidi    L.Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

CRAIG TRAPP,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-225

[March 30, 2011]

WARNER, J.

The appellant challenges his convictions for false imprisonment and carjacking, claiming that the trial court erred in permitting the prosecutor to cross-examine him on a prior conviction of perjury. The prosecutor maintained that Trapp had opened th e door to this by testifying that the victim could be charged with perjury if she testified. We conclude that the court erred in permitting the appellant to be cross-examined in this manner, and we cannot conclude that the error was harmless.Jennifer Magala lived with her child at the Salvation Army residence. One day she got into her car to go get some cigarettes at a local liquor store with a drive up window. When she arrived at the drive up window, a man whom she said she had never seen before (appellant Trapp) got into the passenger side of her car. He had his hand under his shirt, and she thought he had a gun. He told her to drive away. She tried to park the car, but he made her pull into a driveway close to some pre-construction homes. She got out of the vehicle with her child and tried to retrieve her purse and the child’s bag. Trapp told her to leave it, and he drove off in the car. She had a cell phone in her pocket and immediately called 911. The tape of the 911 call was played for the jury. A police officer arrived very quickly, and she gave him a description of the man, the vehicle and the license plate. A couple of days later she was contacted by police and asked to view a photo line-up from which she identified the defendant, Craig Trapp. Later, her damaged car was recovered.

A couple of months before the trial Trapp called her on her cell phone, telling her not to testify. He made a few calls to her and at one point told her that if she lied, the authorities would take her child away from her.Only one independent witness testified. Michael McGirt was at his home across the street from where Magala pulled into the driveway and got out of the car. McGirt testified that Magala looked shocked as the man, whom McGirt was able to identify as Trapp, drove off with the vehicle.Trapp testified in his defense, a n d his version of events was dramatically different than that of Magala. He maintained that he knew Magala from the Salvation Army, knew that she had three children, and knew the father of her baby. On the day of the incident, he met her outside of the Salvation Army building, and she asked him to help her get some cocaine. After discussing the logistics of acquiring it, he told her he would use her car to go to a housing project where he thought he could obtain it. He denied getting into her car at the liquor store, nor did he use her car without her permission. He didn’t purchase cocaine, because when he got to his source, that person didn’t have any. He was going to go to another place to try to get it. He never called Magala to say he would be late. When he got to the second source for cocaine no one was there, which was a sign that the police had been by. He then went joy riding for a couple of days, drinking, and to visit some friends. Eventually, he ran out of gas. When he flagged down a police officer, he found out that Magala had reported the car as stolen. During his direct testimony, he admitted he had previously been convicted of ten felonies, two of which were crimes of dishonesty.He admitted that he called Magala four times prior to the trial. On cross-examination, he said he called to say he was sorry because he betrayed her and lied to her. When he found out there were two kidnapping charges against him, he accused her of lying. He told her he didn’t kidnap her, didn’t carjack the car, and didn’t rob her. He denied that he had ever told Magala not to testify. He said she asked him, “What do you want me to do? Sign the waiver?” He said he told her, “No, don’t sign the waiver. Go down and tell the truth or leave it alone.” He told her, “If they catch you in any lies, they’ll charge you with perjury. You will go to jail. Your baby will go to HRS.”At that point the prosecutor asked, “Let’s talk about perjury,” to which defense counsel posed an objection. The prosecutor claimed that by mentioning the possibility of the victim’s perjury, defendant had opened the door for the prosecutor to question Trapp about a prior

2

perjury conviction of his own.¹ The court overruled the objection, and the prosecutor elicited that Trapp had been convicted of perjury in Mississippi. The prosecutor used this admission in closing argument. She argued that the jury had the opportunity to hear Magala testify, and there was no evidence that she was convicted of a crime. However, when the jury looked at the credibility of Trapp, the prosecutor told them that they should remember that he was a ten-time convicted felon and that two of those crimes involved dishonesty. The prosecutor argued, “You have been able to hear he has been convicted of perjury, and perjury is lying on the stand. He wanted you to believe during the course of the testimony that the victim came in here and committed perjury because he was just borrowing her vehicle. I want you to really think about the credibility of the story.”The jury deliberated, requiring the read back of both the independent witness’ testimony and Trapp’s testimony. They informed the court that they were unable to come to an agreement on a verdict. The court gave an Allen charge to which neither side objected, and the jury returned to deliberate and ultimately returned a verdict. On the two kidnapping charges the jury found Trapp guilty of the lesser included charges of false imprisonment. On the count charging carjacking, they found him guilty as charged.The trial court subsequently sentenced Trapp. Prior to sentencing, Trapp made a pro se motion for new trial, as did defense counsel. Trapp asserted that the Mississippi perjury charge was actually giving a false name. Both motions were denied. Trapp was sentenced to ten years on the two false imprisonment convictions and, for the carjacking, he was sentenced as a habitual offender to life with a 30-year minimum mandatory as a prison releasee reoffender. He now appeals, arguing that the trial court erred in permitting the state to elicit testimony regarding his prior conviction in Mississippi for perjury.Evidentiary rulings on the admission of evidence of other crimes are reviewed under an abuse of discretion standard. Zerbe v. State, 944 So. 2d 1189, 1193 (Fla. 4th DCA 2006). However, the trial court’s discretion is restricted by the rules of evidence. Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001).

¹ As it turns out, the conviction labeled “perjury” was not what would be classified as perjury in Florida. The defendant gave a false name to a police officer in Mississippi, the equivalent of a misdemeanor in Florida.

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Subsection 90.610(1) of the Florida Evidence Code provides:A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable b y death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment….In Bobb v. State, 647 So. 2d 881 (Fla. 4th DCA 1994), we explained that this provision permitted a witness to b e questioned regarding prior convictions only as to the number of felonies but not as to whether they involve crimes of dishonesty. A party could not ask a witness whether he or she had been convicted of felonies involving dishonesty or false statement, because the legislature had permitted impeachment by prior felonies, regardless of type. We said:The subsection makes no distinction as to categories of felonies, but limits use of misdemeanors to the category of ones involving dishonesty or false statement. We believe that allowing further inquiry into whether the felony involved dishonesty or false statement would have the impermissible and unintended effect of elevating certain felonies over others. In essence, we would be approving a more extensive cross-examination of one who has been convicted of grand theft, a felony involving dishonesty, than one convicted of murder, a felony not involving dishonesty or false statement. We cannot read into the statute or the subsection, as adopted by the supreme court, an intent to depart from the long-standing practice of restricting inquiry into the nature of the offense. Accord Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982).Id. at 884 . A s the statute permits inquiry into the number of misdemeanors but only those involving crimes of dishonesty or false statement, we also clarified that the witness can be asked only two questions. First, “have you ever been convicted of a felony?” Second, “have you ever been convicted of a misdemeanor involving dishonesty or false statement?”If the witness denies having been convicted, or misstates the number of convictions, counsel may impeach by producing a record of past convictions. However, if the witness admits the conviction, then the

4

inquiry by his adversary may not be pursued to the point of naming the crime for which he was convicted. Id. See also Dessaure v. State, 891 So. 2d 455 (Fla. 2004) (citing Fulton v. State, 335 So. 2d 280 (Fla. 1976)). Because Trapp admitted the number of convictions, including that two were for dishonesty, the prosecutor was not allowed to elicit the nature of the convictions.The state, however, contends that a witness can also b e asked whether the crime is one of perjury, citing Johnson v. State, 361 So. 2d 767 (Fla. 3d DCA 1978). There, the court found that while generally the nature of the conviction may not be revealed, where the conviction was for perjury, an exception is made because of its greater weight against the credibility of a witness than any other crime. However, Johnson interpreted section 90.08, the predecessor to section 90.610. Section 90 . 08 specifically permitted a perjury conviction to be revealed. “Evidence of such conviction, including the fact that the prior conviction was for the crime of perjury, may be given to affect the credibility of the said witness, and such conviction may be proved by questioning the proposed witness or, if h e deny it, b y producing a record of his conviction.” Section 90.610(1) removed the special status of perjury convictions. As noted in Bobb, the section does not elevate one type of felony over another. No cases since the amendment of the statute and revision of the rule have maintained the special status of perjury. Therefore, we adhere to the general and longstanding rule that the nature of the specific conviction may not be inquired into, even if it is a crime of perjury.

The state argues, as it did at trial, that even if the prosecutor may not have been able to impeach with the specific reference to the perjury conviction, Trapp opened the door through his statement that the victim would commit perjury if she testified against him. In order to “open the door” to the specific nature of the prior conviction, the defense must first offer “misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled.” Bozeman v. State, 698 So. 2d 629, 630 (Fla. 4th DCA 1997). “The ‘opening the door’ concept is based on considerations of fairness and the truth-seeking function of a trial, where cross-examination reveals the whole story of a transaction only partly explained in direct examination.” Id. at 631.We do not understand how Trapp’s admission that he told the witness that if she lied, the authorities would charge her with perjury constitutes opening the door to the prosecutor questioning him about his own conviction of perjury. Trapp did not try to mislead the jury as to a

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specific factual assertion. As to his prior convictions, h e testified truthfully. The jury was not misled in the slightest by Trapp’s asserting that if Magala lied she could be charged with perjury. The door was not opened, and the trial court erred in permitting the prosecutor to bring out the perjury conviction.The error was not harmless beyond a reasonable doubt, because we cannot say that the error did not affect the verdict. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). First, the improper admission of collateral crime evidence is presumed harmful. See Czubak v. State, 570 So. 2d 925, 928 (Fla. 1990). Second, the prosecutor not only specifically elicited the perjury conviction, but she emphasized the conviction in closing argument as a reason that the jury should reject Trapp’s testimony in favor of Magala’s version of events. She specifically referred to the conviction as “lying on the stand” even though th e conviction was actually for giving a false name to a police officer. Thus, the prosecutor used the crime of “perjury” to sway the jury not to believe Trapp.This case primarily turned on a conflict between Magala and Trapp as to who was telling the truth. Trapp’s version could not be discounted as completely fanciful. He knew about Magala, including the number of her children. He had her cell phone number and was calling her after the incident. All of this indicated that Magala may not have been telling the truth about not knowing him. The jury clearly struggled with the case, and the court had to resort to an Allen charge. For all of these reasons, the state has not carried its burden of proving that the error in referring to the perjury conviction was harmless beyond a reasonable doubt.We reverse appellant’s conviction and sentence and remand for a new trial.POLEN  and LEVINE, JJ., concur.* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 07-19075 CF10A.Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.

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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

RILEY JAMES SHELTON, III,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D08-4813

[March 30, 2011]

GERBER, J.

A jury convicted the defendant of home invasion with a firearm and attempted sexual battery with threat of force. The circuit court sentenced the defendant to life in prison on the home invasion charge and to a concurrent fifteen years in prison on the attempted sexual battery charge. In this appeal, the defendant argues that the circuit court used his lack of remorse against him in imposing the life sentence on the home invasion charge and thereby committed error. We find that the court did not use the defendant’s lack of remorse against him in imposing the life sentence. Therefore, we affirm.We provide the court’s entire statement from the sentencing hearing to put in context the court’s discussion regarding the defendant’s lack of remorse:Okay sir, based on the jury verdict in this case, on Count 1 home invasion robbery with a firearm as charged, I’ll adjudicate you guilty of that offense. Count 2 attempted sexual battery . . .on a . . . person of 12 years of age or older with threat of force as charged, I’ll adjudicate you guilty of that offense. You know . . .it’s interesting, I’ve . . . read through the PSI, I’ve listened to all the comments here today, and I certainly feel very badly for your mother. No . . . parent should ever have to be in a position of standing in a courtroom watching one of their children enduring something like this, but, you know, the interesting thing is [the victim] regardless of . . . her age, she’s somebody else’s child as well, and she did not have to go through all of this. I think the

testimony left no question that this crime occurred and it occurred the way that she . . . described it. . . . I tend to agree with [the prosecutor], I think those masks came off because . . . I don’t think [the victim] was supposed to survive this incident. I’ m not sentencing on that basis . . . I think it’s an appropriate . . .conclusion to reach . . . but I’m not sentencing on that basis. I am, however, considering the testimony as it was presented and this lady, quite frankly, for lack of a better way to characterize it, was terrorized in that household and these men ran after her when she tried to escape and brought her back at gunpoint to the house to terrorize her some more. I’m looking at a prior record here and at the ripe old age of 19, let’s see, I have one, two, three, four, five, six prior convictions, three of them are felonies. Most of these convictions are either for weapons offense[s] or crimes of violence.I’ve heard absolutely no recognition whatsoever on [the defendant’s] behalf that he’s done anything wrong, that he feels any remorse in the least for what was done to this lady. I remember her testimony, I have notes of it, in which she broke down what each of the individuals did and quite frankly I do think that she’s lucky to be alive and to have lived . . . through this. And based on that sir, I . . . think based on your record and based on this conduct, you have forfeited your right to remain out with us and I will sentence you o n Count 1 to life imprisonment with a ten-year mandatory minimum, on Count 2 to 15 years in the Department of Corrections, both counts concurrent.(emphasis added).The defendant concedes that he did not object to the court’s comments regarding his lack of remorse. Thus, he did not preserve the argument for review. German v. State, 27 So. 3d 130, 132 (Fla. 4th DCA 2010). The defendant argues, however, that the court committed fundamental error by using his lack of remorse against him in imposing the life sentence. See Hayward v. State, 24 So. 3d 17, 41 (Fla. 2009) (fundamental error is “an error that ‘goes to the foundation of the case. . . and is equivalent to a denial of due process’”) (citations omitted).We reject the defendant’s argument. We recognize that “[a] trial court violates due process by using a protestation of innocence against a defendant.” Holton v. State, 573 So. 2d 284, 292 (Fla. 1990). However, “remorse and an admission of guilt may be grounds for mitigation of a sentence or a disposition.” K.N.M. v. State, 793 So. 2d 1195, 1198 (Fla. 5th DCA 2001).

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Here, the court expressly stated that it was basing the life sentence on the defendant’s record and his conduct in this case. We perceive the court’s comments regarding the defendant’s lack of remorse as the court’s recognition that it lacked any grounds to mitigate his sentence. We see no evidence that the court used the defendant’s lack of remorse against him. Thus, we find no error. See German, 27 So. 3d at 133 (“[I]n pronouncing sentence, there is no suggestion that the trial court used the defendant’s silence, lack of remorse, or failure to admit guilt against him; quite the contrary. The court’s comments were directed to the heinous nature of the crime.”).¹On all of the other grounds which the defendant raises in this appeal, we affirm without further comment.Affirmed.GROSS, C.J., and TAYLOR, J., concur.* * *Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge; L.T. Case No. 562007CF005089A.Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.Not final until disposition of timely filed motion for rehearing.

¹ German was the co-defendant in this case. As we noted in German, “[c]ourts should, however, be vigilant to avoid any suggestion of improper considerations when making remarks during sentencing.” 27 So. 3d at 133 n.2.

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