Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT                                     JANUARY TERM 2011

ALTON BEAUVAIS,

Appellant,

v.                                        Case No.  5D09-2377

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed March 25, 2011

Appeal from the Circuit Court

for Osceola County,

Scott Polodna, Judge.

James S. Purdy, Public Defender, and

Rose M. Levering, Assistant Public

Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Carmen F. Corrente,

Assistant Attorney General, Daytona

Beach, for Appellee.

PER CURIAM.

We  affirm  Appellant’s  convictions  for  first-degree  murder  and  robbery  with  a deadly weapon without further discussion. We reverse the conviction for burglary of a dwelling because the circular jury instruction constituted fundamental error. Lee v.

State, 958 So. 2d 521 (Fla. 2d DCA 2007). We remand for a new trial on the burglary count.AFFIRMED in part; REVERSED in part, and REMANDED.PALMER, TORPY and LAWSON, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT                JANUARY TERM 2011

ROBERT R. CLINTON,

Appellant,

v.                                             Case No.  5D09-1080

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed March 25, 2011

Appeal from the Circuit Court for Volusia County,

Frank Marriott, Judge.

James S. Purdy, Public Defender, and Peter A. Ames, Sr., Assistant Public Defender, Daytona Beach, for Appellant.

Pamela  Jo  Bondi,  Attorney  General,

Tallahassee,  and  Douglas  T.  Squire,

Assistant  Attorney  General,  Daytona

Beach, for Appellee.

PER CURIAM.

Defendant  appeals  his  sentences  for  ten  counts  of  possession  of  material depicting sexual performance by a child,¹ one count of lewd and lascivious molestation

¹§ 827.071(5), Fla. Stat. (2007).

of a child under twelve years of age,² and forty counts of promoting sexual performance by a child.³ The trial court orally announced at sentencing its finding that Defendant is a sexual predator. We affirm the sentences and conclude that only two aspects of the sentences merit any discussion. First, we note that as to the forty counts of promoting sexual performance by a child, the fifteen-year sentences imposed for each count are concurrent to one another. Second, as to the oral finding that Defendant is a sexual predator, we remand this case to the trial court to make the necessary written findings in accordance with section 775.21(5)(a)1., Florida Statutes (2007).AFFIRMED; REMANDED.GRIFFIN, SAWAYA and PALMER, JJ., concur.

²§ 800.04(5)(b), Fla. Stat. (2007).³§ 827.071(3), Fla. Stat. (2007).

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Opinion filed March 25, 2011.

Appeal pursuant to Fla. R. App. P.

9.141(b)(2) from the Circuit Court for Hardee County; Marcus J. Ezelle, Judge.

WALLACE, Judge.

In 1991, Terry T. Rawls pleaded nolo contendere to burglary and sexual battery. He was sentenced to five years in prison for the burglary and to life in prison for the sexual battery. On direct appeal, this court affirmed Mr. Rawls’ judgment and sentences. Rawls v. State, 596 So. 2d 1255 (Fla. 2d DCA 1992).

In October 2001, Mr. Rawls filed a motion for postconviction DNA testing.At the time, Mr. Rawls’ nolo contendere plea disqualified him from obtaining the

requested relief.  See § 925.11(1)(a), Fla. Stat. (2001); Smith v. State, 854 So. 2d 684,685 (Fla. 2d DCA 2003); Stewart v. State, 840 So. 2d 438, 438 (Fla. 5th DCA 2003).  InMarch 2002, citing Mr. Rawls’ nolo contendere plea, the postconviction court denied his motion.

In July 2010, Mr. Rawls filed a second motion for postconviction DNA testing. The postconviction court entered an order denying the second motion based on its earlier order. Unfortunately, the postconviction court overlooked that the law now allows postconviction DNA testing in cases where a defendant has entered a plea of guilty or nolo contendere to a felony before July 1, 2006. § 925.11(1)(a)(2), Fla. Stat. (2010); McDole v. State, 46 So. 3d 1154, 1155 (Fla. 1st DCA 2010); Menendez v. State, 41 So. 3d 1066, 1067 (Fla. 3d DCA 2010); Glenn v. State, 954 So. 2d 732, 733 (Fla. 1st DCA 2007); Lindsey v. State, 936 So. 2d 1213, 1214 (Fla. 5th DCA 2006). Accordingly,

Mr. Rawls’ nolo contendere plea is no longer a bar to his motion for postconviction DNA testing. The postconviction court erred in relying on its earlier order to deny Mr. Rawls’ motion.For these reasons, we reverse the postconviction court’s order denying Mr. Rawls’ motion for postconviction DNA testing and remand for further proceedings.

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.

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Opinion filed March 25, 2011.

Appeal from the Circuit Court for LeeCounty; Mark A. Steinbeck, Judge.James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.Pamela Jo Bondi, Attorney General,Tallahassee, and Ronald Napolitano,Assistant Attorney General, Tampa, forAppellee.ALTENBERND, Judge.Justin C. Snyder appeals three sentences entered after the trial court found him guilty of violating the terms of his probation. The State concedes that an error exists in two of the three sentences. We reverse those sentences but conclude

that on remand the trial court can correct the error by striking the one-year term of probation in the two erroneous sentences.

Mr. Snyder pleaded no contest to burglary of a dwelling and two counts of grand theft in 2008. The trial court sentenced him as a youthful offender to a term of ten months’ incarceration followed by five years’ probation for the burglary and two concurrent terms of ten months’ incarceration followed by four years’ probation for each count of grand theft. After he served the terms of incarceration, he violated probation.

Following an evidentiary hearing, the trial court revoked his probation and sentenced him to three concurrent terms of sixty months’ incarceration with credit for time served, followed by one year of probation.

Although the trial court was clearly attempting to impose a proper youthful offender sentence on violation of probation, it was not authorized to impose a sentence that was longer than the statutory maximum for a charged offense. See § 958.14, Fla. Stat. (2008). In this case, the sentence imposed for the burglary is a legal sentence.The concurrent sentences for the two counts of grand theft exceed the five-year statutory maximum for a third-degree felony. The State concedes that these two sentences exceed the statutory maximum.

Because the existing sentence for the burglary is a proper sentence and will require Mr. Snyder to serve a five-year term in prison, there is no need to remand this case to the trial court to consider a shorter term of imprisonment for the two counts of grand theft. On remand, the trial court shall strike the one-year period of probation as to these two offenses, leaving the concurrent five-year terms of imprisonment with credit for time served as the total sentence for these offenses.- 2 -

Affirmed in part, reversed in part, and remanded.DAVIS and WALLACE, JJ., Concur.

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___________________________________)

Opinion filed March 25, 2011.

Appeal from the Circuit Court for Manatee

County; Debra Johnes Riva, Judge.Chad Pifer, pro se.Pamela Jo Bondi, Attorney General,

Tallahassee, and Dawn A. Tiffin, Assistant

Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Chad Pifer appeals an order denying his claims for postconviction relief. He also challenges his resentencing on remand.¹ We affirm, but we write to address anissue that was raised in the trial court by way of a motion to correct a sentencing error

¹Pifer v. State, 8 So. 3d 1154 (Fla. 2d DCA 2009) (reversing and remanding summary denial of Pifer’s claim that his sentence of twelve years’ incarceration to be followed by ten years’ drug offender probation exceeded the eighteen-year sentencing cap specified in his plea agreement).

pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The issue involves Pifer’s resentencing, on remand, by a successor judge without a showing that a substitution of judges was necessary.

In December 2005, Pifer entered a plea in eighteen separate cases involving burglary, dealing in stolen property, grand theft, possession of paraphernalia, and resisting arrest without violence. Pifer was adjudicated guilty and sentenced. The judgments and sentences were affirmed on appeal. Pifer v. State, 951 So. 2d 40 (Fla.

2d DCA 2007).In February 2008, Pifer filed a motion to correct illegal sentence, which was summarily denied. Pifer appealed the summary denial of his motion, and this court reversed and remanded for reconsideration. Pifer v. State, 8 So. 3d 1154 (Fla. 2d DCA 2009).² On remand, the postconviction court reconsidered Pifer’s claim as well as additional claims for postconviction relief that had been raised by Pifer. In October2009, the postconviction court granted relief on the sentencing claim and the judge who presided over the postconviction claims also resentenced Pifer. This judge was not the judge who had accepted Pifer’s plea, but Pifer did not object to the successor judge presiding at his resentencing hearing. The postconviction court otherwise denied relief on Pifer’s additional claims, including an ore tenus motion to withdraw the plea that was made by Pifer’s counsel at the conclusion of the evidentiary hearing on Pifer’s postconviction claims.

This appeal ensued. During the pendency of this appeal, Pifer filed a motion to correct sentencing error pursuant to rule 3.800(b)(2). In the motion, Pifer did

²This motion concerned the sentence imposed in only one of the eighteen cases (case number 2005-CF-2488).

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not assert a specific error in the corrected sentencing order that was entered on remand. Rather, Pifer challenged only the fact that he was resentenced by a successor judge without the showing of necessity required by Florida Rule of Criminal Procedure

3.700(c)(1). The judge who resentenced Pifer denied his rule 3.800(b)(2) motion in a lengthy order explaining that she had more recent familiarity with Pifer’s cases than did the judge who originally sentenced Pifer and that Pifer had an opportunity to object before resentencing but failed to do so.

On appeal, Pifer argues that the postconviction court erred in denying the ore tenus motion to withdraw plea and also that he must be afforded a new sentencing hearing because he was resentenced by a successor judge without a showing that a substitution of judges was necessary. We affirm the denial of the motion to withdraw plea without further discussion.

We also affirm on the issue concerning Pifer’s resentencing by a successor judge. Our decision on this issue turns on whether resentencing by the successor judge is a sentencing error as contemplated by rule 3.800(b)(2). Although Pifer raised this issue in a rule 3.800(b)(2) motion, he did not contemporaneously object to resentencing by the successor judge. In fact, during the resentencing hearing the judge asked all the attorneys if they wanted to make any additional arguments concerning resentencing and asked Pifer if he wished to say anything before she pronounced the sentence, and neither defense counsel nor Pifer expressed any concern about the successor judge presiding over resentencing.

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If resentencing by a successor judge without a showing of necessity is a”sentencing error,” the error can be preserved by a rule 3.800(b)(2) motion. If it is not, absent a proper objection, this court may review the issue only for fundamental error.

Explaining that “[a]ppellate courts have disagreed on what kind of errors constitute ‘sentencing errors’ subject to [rule 3.800(b)],” the supreme court has provided a framework for determining whether a particular error constitutes a sentencing error.Jackson v. State, 983 So. 2d 562, 569 (Fla. 2008). Under Jackson, ” ‘a “sentencing error” that can be preserved under rule 3.800(b)(2) is an error in the sentence itself–not any error that might conceivably occur during a sentencing hearing.’ ” Id. at 573 (quoting Jackson v. State, 952 So. 2d 613, 616 (Fla. 2d DCA 2007) (Stringer, J., specially concurring)). Rule 3.800(b) “may be used to correct and preserve for appeal any error in an order entered as a result of the sentencing process–that is, orders related to the sanctions imposed.” Jackson, 983 So. 2d at 574. However, a claim of error in the sentencing process is not cognizable in a motion under rule 3.800(b). See id.Here, the resentencing by a successor judge without a showing of necessity, if error at all, was an error in the sentencing process, not in the sentencing order. As such, Pifer’s rule 3.800(b)(2) motion could not preserve this claim of error. It can be reviewed only for fundamental error. See Jackson, 983 So. 2d at 568-69.

” ‘[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.’ ” Hopkins v. State, 632 So. 2d 1372, 1374 (Fla. 1994)

(alteration in original) (quoting State v. Johnson, 616 So. 2d 1, 3 (Fla. 1993)).  Pifer has

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not established that the resentencing process, which was conducted by the successor judge, was equivalent to a denial of due process. Furthermore, this resentencing process did not offend a fundamental constitutional right that would mandate reversal without regard to its effect on the outcome. See, e.g., Jackson, 983 So. 2d at 576.

We thus affirm on this issue because we find that Pifer did not adequately preserve this issue and fundamental error did not occur.

In reaching this conclusion, we are mindful that this court has previously considered such a claim cognizable under rule 3.800(b)(2). See Boyd v. State, 988 So.

2d 1242, 1245 (Fla. 2d DCA 2008); Kramer v. State, 970 So. 2d 468 (Fla. 2d DCA 2007); Young v. State, 950 So. 2d 516 (Fla. 2d DCA 2007); Lopez v. State, 905 So. 2d 1045 (Fla. 2d DCA 2005); Snyder v. State, 870 So. 2d 140 (Fla. 2d DCA 2004); Persaud v. State, 821 So. 2d 411, 413 (Fla. 2d DCA 2002); see also Horne v. State,

918 So. 2d 1011 (Fla. 2d DCA 2006) (granting petition alleging ineffective assistance of appellate counsel where appellate counsel failed to file a rule 3.800(b)(2) motion challenging a violation of rule 3.700(c)(1)); Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004) (same). However, these cases did not address the supreme court’s Jackson decision, in which it clarified the scope of rule 3.800(b). To the extent that our prior decisions determined that a claim of error with respect to resentencing by a successor judge in violation of rule 3.700(c)(1) could be preserved by a rule 3.800(b)(2) motion, they are inconsistent with the principles set forth by the supreme court in Jackson, which we are bound to follow.Affirmed.

LaROSE and CRENSHAW, JJ., Concur.

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Opinion filed March 25, 2011.

Appeal from the Circuit Court for Pinellas

County; Raymond O. Gross, Judge.

James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Katherine Coombs Cline,

Assistant Attorney General, Tampa, for

Appellee.

VILLANTI, Judge.

A.S.B. seeks review of his adjudication of guilt for the offense of grand theft motor vehicle and the resulting disposition order which committed him to a high-risk facility.  We affirm A.S.B.’s adjudication of guilt and commitment to a high-risk

facility without comment. However, we remand for entry of a new disposition order because the current disposition order fails to clearly specify the maximum time that

A.S.B. may be committed to the Department of Juvenile Justice.A.S.B. was fourteen years old when he committed the offense of grand theft motor vehicle. This offense is a third-degree felony punishable by up to five years in prison. See §§ 812.014(2)(c)(6), 775.082(3)(d), Fla. Stat. (2009). A.S.B.’s disposition order provided, in pertinent part,

The Child is committed to the Department of Juvenile Justice

(DJJ) for an indeterminate period, which shall not extend beyond the Child’s 21st birthday or the maximum allowed by law.At the top of the disposition order, the order stated that the offense of grand theft motor vehicle was a “3rd Degree Felony punishable by up to 5 years.”

Counsel for A.S.B. initially filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which counsel raised a “minor sentencing issue” concerning the length of A.S.B.’s commitment. Counsel argued that the disposition order was ambiguous and should be corrected because the language of the order could be construed as permitting the Department to retain jurisdiction over A.S.B. for longer than the statutory maximum.¹ We requested supplemental briefing on this issue, and theState has properly conceded error in its supplemental answer brief.An order that “commit[s] a juvenile for an indeterminate period of time no longer than a specific birthday or the maximum term of imprisonment is error because such language could allow the sentence to be construed as running longer than the

¹A.S.B. raised this issue in a timely motion to correct disposition error filed pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2); however, the trial court never ruled on this motion.

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statutory maximum provided for the particular offense.”  L.W.G. v. State, 785 So. 2d696, 696 (Fla. 4th DCA 2001); see also J.E.R. v. State, 36 Fla. L. Weekly D215 n.1 (Fla.2d DCA Jan. 28, 2011). When the juvenile is young enough that the statutory maximum for the offense will expire before the juvenile reaches majority, a disposition order that appears to permit the Department to choose between retaining jurisdiction until either the statutory maximum for the offense or the child’s twenty-first birthday is ambiguous because it could be construed as extending commitment past the statutory maximum and until the specified birthday. See J.E.R., 36 Fla. L. Weekly at D215 n.1; R.P. v.

State, 695 So. 2d 490, 490 (Fla. 4th DCA 1997); M.S. v. State, 675 So. 2d 215, 216 (Fla. 4th DCA 1996). In such an instance, the disposition order must be reversed and remanded for the trial court to enter an order that specifies the period of commitment actually imposed by the court. See S.B. v. State, 834 So. 2d 964, 964 (Fla. 2d DCA

2003); L.W.G., 785 So. 2d at 696-97 (reversing for entry of disposition orders that specifically limited the period of commitment to the applicable statutory maximum); R.P., 695 So. 2d at 490 (reversing for entry of a disposition order that specifically limits commitment “to no more than sixty days which is the maximum term an adult can serve for the same offense”); M.S., 675 So. 2d at 216 (noting that the disposition order “should have specified a commitment for one year, the maximum allowable sentence for this misdemeanor” (footnote omitted)).In this case, the disposition order entered by the trial court could be construed to give the Department discretion to maintain jurisdiction for either the five-year statutory maximum or until A.S.B.’s twenty-first birthday, whichever it chooses. However, given A.S.B.’s young age at disposition, commitment until his twenty-first

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birthday would result in a sentence that exceeds the statutory maximum for his third-degree felony offense.  Because the disposition order entered in this case did notclearly limit A.S.B.’s sentence to the five-year statutory maximum, we must reverse.²On remand, the trial court is instructed to enter a disposition order that clearly limitsA.S.B.’s commitment to no more than five years, which is the maximum term an adultcan serve for the same offense.Affirmed in part, reversed in part, and remanded with instructions.

CASANUEVA, C.J., and CRENSHAW, J., Concur.

²We recognize that section 985.455(3), Florida Statutes (2009), requires that commitment to the Department be “for an indeterminate period of time.” However, the same statute prohibits commitment for longer than “the maximum term of imprisonment that an adult may serve for the same offense,” id., and section 985.0301(5)(c) prohibits the Department or the court from exercising jurisdiction after the child turns twenty-one years of age. While we usually condone a trial court’s use of the exact statutory language when disposing of criminal cases, when the juvenile’s age at disposition renders the statutory language ambiguous as applied to that juvenile, such a “one size fits all” approach to disposition orders may be inappropriate.

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Appeal from the Circuit Court for

Hardee County; Marcus J. Ezelle,

Judge.

James Marion Moorman, Public

Defender, and John C. Fisher,

Assistant Public Defender, Bartow,

for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Danilo Cruz-Carino,

Assistant Attorney General, Tampa,

for Appellee.

KELLY, Judge.

Barbara Anne Ratliff appeals the judgment and sentence imposed following her no contest plea to keeping or maintaining a public nuisance in violation of

(1)    section 823.10, Florida Statutes (2008).¹ Because Ratliff’s conduct did not violate the portion of section 823.10 that criminalizes maintaining a public nuisance, we reverse.The State charged Ratliff with keeping or maintaining a”dwelling/structure” used for selling, distributing, or ingesting illegal substances inviolation of section 823.10, which provides:Any store, shop, warehouse, dwelling house, building, structure, vehicle, ship, boat, vessel, or aircraft, or any place whatever, which is visited by persons for the purpose of unlawfully using any substance controlled under chapter 893 or any drugs as described in chapter 499, or which is used for the illegal keeping, selling, or delivering of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance or aid and abet another in keeping or maintaining such public nuisance. Any person who willfully keeps or maintains a public nuisance or willfully aids or abets another in keeping or maintaining a public nuisance, and such public nuisance is a warehouse, structure, or building, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.

775.084. Any proceeding brought under this section shall be governed by chapter 60. (Emphasis supplied).  Ratliff moved to strike or dismiss the information² claimingthat the information failed to state a crime because a dwelling is specificallyexcluded from the part of section 823.10 which criminalizes the maintaining of apublic nuisance. The State stipulated that the structure at issue was in fact a dwelling. The trial court denied Ratliff’s motion based on the State’s argument

¹Ratliff also entered a nolo contendere plea to sale of methamphetamine in a separate case. Ratliff does not challenge that judgment or sentence.²The trial court apparently treated Ratliff’s motion to strike the information as a motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4).- 2 -

that because a dwelling is a structure or, alternatively, a building it is subject to the criminal provision in the statute.

For the State’s argument to prevail here, we would have to read the last sentence of subsection (1) in isolation. However, we are required to read it within the context of the entire subsection in order to ascertain legislative intent. See Lamar Outdoor Advertising-Lakeland v. Dept. of Transp., 17 So. 3d 799, 802 (Fla. 1st DCA

2009). Further, each statute “must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts.” Id. (quoting Dept. of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1265 (Fla. 2008)). The second portion of section 823.10(1), which criminalizes keeping or maintaining a public nuisance, mentions only a “warehouse, structure, or building,” while the first portion of the statute, which explains what constitutes a “public nuisance,” lists “store, shop, warehouse, dwelling house, building, structure, vehicle, ship, boat, vessel, or aircraft, or any place whatever.” This indicates that the legislature intended to consider “dwelling house,” “building,” and “structure” separately. See id. Because the statute prohibits the public nuisance in a “warehouse, structure, or building” and it is undisputed that the subject of this case was a dwelling, the statute does not apply to Ratliff’s conduct. Accordingly, we reverse Ratliff’s judgment and sentence and remand for the trial court to enter an order of dismissal.Reversed and remanded.WHATLEY and KHOUZAM, JJ., Concur.

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Opinion filed March 25, 2011.

Appeal from the Circuit Court for Pinellas

County; Philip J. Federico, Judge.

Leslie M. Sammis of Sammis Law Firm,

P.A., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Susan D. Dunlevy,

Assistant Attorney General, Tampa, for

Appellee.

DAVIS, Judge.

Lisa Franzone challenges her conviction and sentence for improper impound of a vehicle on private property. A jury found her guilty of the offense, and the trial court adjudicated her guilty and sentenced her to three years’ probation. Because the trial court erred in denying her motion for judgment of acquittal, we reverse.

Mrs. Franzone is a member of Zoner, LLC, the company that owns andoperates George and Sons Towing.¹ On the evening of October 22, 2008, PeterDonnantuani attended a Tampa Bay Rays baseball game. Mr. Donnantuani parked his car at a nearby condominium complex where he is not a resident. While he was attending the game, a condominium resident returned home to find Mr. Donnantuani’s car in her assigned parking spot. She called George and Sons Towing to come and

remove the vehicle.After the game, Mr. Donnantuani returned to the parking lot anddiscovered that his car was missing. For the first time he saw a sign that indicated that vehicles parked in that lot without permission were subject to being towed. He called the number of the towing service listed on the sign and was told that that company did not have the vehicle. He then contacted law enforcement and ultimately learned that his car had been towed by George and Sons. He placed several calls to George andSons but did not retrieve his vehicle until the next day.  It was this delay that served asthe basis for Mrs. Franzone’s conviction.Mrs. Franzone was convicted of violating the terms of section715.07(2)(a)(1)(a), Florida Statutes (2008), which sets forth the conditions by which avehicle may be towed from private property without the owner’s consent.  Included inthose conditions is the requirement that[a]ny towed or removed vehicle or vessel must be stored at a site within a 10-mile radius of the point of removal . . . . That site must be open for the purpose of redemption of vehicles on any day that the person or firm towing such vehicle or

¹” ‘Member’ means any person who has been admitted to a limited liability company as a member in accordance with this chapter and has an economic interest in a limited liability company . . . .” § 608.402(21), Fla. Stat. (2008).

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vessel is open for towing purposes, from 8 a.m. to 6 p.m., and, when closed, shall have prominently posted a sign indicating a telephone number where the operator of the site can be reached at all times. Upon receipt of a telephoned request to open the site to redeem a vehicle or vessel, the operator shall return to the site within 1 hour or she or he will be in violation of this section.§ 715.07(2)(a)(1)(a) (emphasis added). The statute also identifies a violation of section 715.07(2)(a)(1)(a) as a third-degree felony. § 715.07(5)(b). This is the offense of which

Mrs. Franzone was convicted.At trial, Mrs. Franzone challenged the sufficiency of the State’s evidenceby her motion for judgment of acquittal, arguing that the State had failed to establish (1)that she was the operator of George and Sons Towing, (2) that no one was present atthe site where the car was located during the time at issue, and (3) that on the night ofthe incident, Mr. Donnantuani could not prove that he was the rightful person to takepossession of the car.² In denying Mrs. Franzone’s motion for judgment of acquittal, thetrial court determined that for purposes of the statute, she was the operator of thetowing company because she was “running the business,” she was the person to whomthe dispatcher reported, and she actually made the decision the following day to releasethe car. The court therefore concluded that Mrs. Franzone could be held criminally responsible if the jury determined that a crime had been committed. But the trial court

²Mrs. Franzone’s motion and argument made at the conclusion of the State’s case is not in our record. The trial court indicated at the close of evidence that Mrs. Franzone’s counsel should repeat his original argument in his second motion for judgment of acquittal because the trial court failed to record the first motion and argument, which had been presented during a sidebar. We conclude that a similar argument was made at the close of the State’s case, and we evaluate the evidence produced by the State in light of these three arguments.

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also observed that the evidence presented was so conflicting that the jury may beunable to determine what actually happened that night.³On appeal, in addition to raising the arguments she made in the motion forjudgment of acquittal, Mrs. Franzone challenges the constitutionality of section715.07(2)(a)(1), arguing that it is vague and that it fails to include a mens rea element.Without reaching the question of constitutionality, we do note the difficulty of applyingthis statute.  The statute requires the operator to return to the site within an hour ofreceiving a telephonic notification of an owner’s desire to redeem his or her vehicle.However, it does not clearly define the term “operator.”  Is the operator the employeewho has towed the vehicle, the dispatcher who is answering the telephone, or the ownerof the business who, as in this case, may be home in bed when the telephoned requestis made?We conclude that the trial court erred in determining that Mrs. Franzone isthe operator of the site where Mr. Donnantuani’s vehicle was being stored.  As a matterof law, Zoner, LLC, d/b/a George and Sons Towing, is the operator contemplated by thestatute.  Although chapter 715 does not define the term “operator,” section 1.01(15),Florida Statutes (2008), specifically defines “wrecker operator” to be “any person or firmregularly engaged for hire in the business of towing or removing motor vehicles.”(Emphasis added.)

³Specifically, the trial court observed: “[T]he jur[ors have] about eight different stories from eight different people that testified, so they’re going to have to sort through it and decide who . . . they think is credible. There wasn’t anything consistent between any of the witnesses for either of the two sides. So, I mean, it’s a classic credibility call, if they can find anybody they think is credible and decide what that version is as far as the case is concerned.”

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The uncontested testimony at trial established that Mrs. Franzone did not personally engage in the business of towing vehicles, i.e., she did not enter into contracts personally to tow vehicles. Rather she followed the procedures established by Florida law to create a separate firm—Zoner, LLC, d/b/a George and Sons Towing— to engage in such business.

Chapter 608 of the Florida Statutes provides for the creation of limited liability companies like Zoner, LLC. LLCs are separate and distinct from the natural persons who serve as their managers or who are their members by virtue of economic investment. See § 608.402(18) (” ‘Manager’ means a person who is appointed or elected to manage a manager-managed company . . . .”), (21) (” ‘Member’ means any person who has been admitted to a limited liability company . . . and has an economic interest in [the LLC].”), Fla. Stat. (2008). And an LLC possesses “the same powers as an individual to do all things necessary to carry out its business and affairs.” § 608.404.This includes but is not limited to the power to sue or be sued, enter contracts, conduct business, and purchase and sell real property. Id. When chapter 608 is compared to chapter 607 governing corporations, it is obvious that the LLC is comparable to the more traditional business structure of a corporation. Such a business entity, in this case Zoner, LLC, would be the “firm” referred to in the definition of “wrecker operator” found in section 1.01. Cf. § 715.07(2)(a)(6) (referencing “[a]ny person or firm that tows or removes vehicles”), (2)(a)(7) (referencing “[a]ny person or firm towing or removing any vehicles”), (2)(a)(9) (“[N]o release or waiver of any kind which would release the person or firm towing the vehicle . . . may be required . . . as a condition of release of the vehicle . . . to its owner.”) (emphasis added). We therefore conclude that the term

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“operator” as used in section 715.07 applies to the natural person or firm that engages for hire in the business of towing vehicles.

That being said, an officer or employee of a business entity may be held criminally liable if he or she commits or authorizes acts that make up a criminal offense.

See State v. Shouse, 177 So. 2d 724, 726 (Fla. 2d DCA 1965); cf. § 621.07, Fla. Stat. (2008) (“[A]ny officer, agent, member, manager, or employee of a [professional service] corporation or limited liability company . . . shall be personally liable and accountable only for negligent or wrongful acts or misconduct committed by that person, or by any person under that person’s direct supervision and control . . . .”). See generally Stephens v. State, 324 So. 2d 190, 192 (Fla. 1st DCA 1975) (“[T]he State could have charged the corporation in the information and/or the defendant, acting in his corporate capacity.”).

However, before determining whether Mrs. Franzone personally is criminally responsible for the acts or omissions of the operator/firm, we must first decide if the State has proven that a crime was even committed. Mrs. Franzone is correct in her contention that the statute itself does not specifically require any mens rea or guilty knowledge on the part of the operator. “At common law, the general rule was that guilty knowledge or mens rea was a required element in the proof of every crime.” Wegner v.State, 928 So. 2d 436, 438 (Fla. 2d DCA 2006). In fact, “because of the strength of the traditional rule that requires mens rea, offenses that require no mens rea are generally disfavored.” State v. Giorgetti, 868 So. 2d 512, 515 (Fla. 2004) (emphasis omitted).

“Relying on the strength of the traditional rule, we . . . have suggested that some indication of congressional intent, express or implied, is required to dispense with mens

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rea as an element of a crime.”  Staples v. United States, 511 U.S. 600, 606 (1994)(emphasis omitted).  Absent such an indication, “we will ordinarily presume that the[l]egislature intends statutes defining a criminal violation to contain a knowledge requirement” and will read such a requirement into the statute. Giorgetti, 868 So. 2d at

516; see also United States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978) (“This Court. . . has on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide.”).

We also note that we agree with the trial court’s assessment of the testimony presented below; it was conflicting as to who said what to whom and when. However, our review of the record suggests that if the jury chose to believe certain portions of the testimony, there could be a reasonable inference that Mr. Donnantuani did in fact make a request of the dispatcher to redeem his vehicle. An awareness of this request may meet the guilty knowledge element regarding the criminal liability of the operator/firm.However, it was not Zoner, LLC, that was charged with this third-degree felony, but rather it was Mrs. Franzone personally who was charged with and convicted of a crime. In order for the State to hold Mrs. Franzone, a natural person who is distinct from the operator—Zoner, LLC—criminally responsible, it had to prove that on the night of the incident, she intentionally instructed the employees of George and Sons Towing to refrain from performing the statutorily mandated acts. Cf. Donald & Bales Exterminating, Inc. v. State, 487 So. 2d 78, 80 (Fla. 1st DCA 1986) (“If, as in the case at bar, the crime charged involves guilty knowledge or criminal intent, it is essential in order to substantiate the criminal liability of an officer of the corporation to show that he

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actually and personally performed the acts which constitute the offense[] or that they were done by his direction or permission.” (citing 18B Am.Jur.2d Corporations § 1894(1985))).In denying Mrs. Franzone’s motion for judgment of acquittal, the trial court failed to recognize that the State did not charge that Mrs. Franzone was individually responsible for the criminal acts of the LLC. And the State’s evidence failed to demonstrate that Mrs. Franzone was personally provided with any statutorily referenced request by Mr. Donnantuani to redeem his vehicle.

No one testified that Mr. Donnantuani ever spoke directly with Mrs. Franzone. All the witnesses agreed that Mr. Donnantuani spoke on more than one occasion with the dispatcher for George and Sons. The actual content of those conversations, however, is in dispute. One version indicated that Mr. Donnantuani demanded that the car be returned to the condominium lot (which is not required by law). Another version was that Mr. Donnantuani advised the dispatcher that he had the necessary money to pay the towing fee but did not have proof of ownership,⁴ to which the dispatcher replied that the car could not be returned until the next day. A final version was that Mr. Donnantuani had the money and the proof of ownership and was ready to meet with someone from George and Sons in order to redeem the car.One point that was not in dispute was that over the course of the entire incident Mrs. Franzone was at home and was contacted only twice by the George and

⁴The George and Sons employee who actually towed the car checked the vehicle identification number and determined that the car was owned by a leasing company. The dispatcher testified that he advised Mr. Donnantuani that he would need some identification and proof that he was the lessee of the vehicle before the vehicle could be returned to him.

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Sons dispatcher, Wade Holdshoe.  The testimony showed that the only information Mrs.Franzone received regarding the incident came from Mr. Holdshoe. Accordingly, the information related to Mrs. Franzone by Mr. Holdshoe during those two conversations was the only basis the State had of proving guilty knowledge on the part of Mrs.

Franzone. We conclude, however, that Mr. Holdshoe’s testimony is inadequate to establish Mrs. Franzone’s intent. As such, the trial court erred in denying Mrs.

Franzone’s motion for judgment of acquittal.Mr. Holdshoe testified that he talked with Mr. Donnantuani several times and also spoke with other persons who called on Mr. Donnantuani’s behalf. Although Mr. Holdshoe admitted that he understood that Mr. Donnantuani had the cash necessary to redeem the car, he also testified that Mr. Donnantuani continually demanded that the car be returned to the condominium parking lot from which it had been towed—something that George and Sons was not legally required to do.Furthermore, Mr. Holdshoe testified that he advised Mr. Donnantuani that because the car was owned by a leasing company, Mr. Donnantuani would have to show some proof of his right to possess the car as the lessee. According to Mr. Holdshoe, Mr. Donnantuani repeatedly insisted that he did not have to prove anything. Mr. Holdshoe denied that Mr. Donnantuani or anyone on his behalf ever advised that Mr. Donnantuani had the necessary proof-of-ownership documents and wanted to come and redeem the car.

With respect to his conversations with Mrs. Franzone, Mr. Holdshoe testified that he called her once around midnight and then again at 3:00 a.m. During the first conversation, Mr. Holdshoe told Mrs. Franzone of the towing and Mr. Donnantuani’s

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insistence that the car be returned to the condominium parking lot, as well as Mr.Donnantuani’s assertion that he did not have to prove anything regarding his right to possession of the vehicle. The dispatcher testified that after several calls with Mr.

Donnantuani making the same demands, Mr. Donnantuani eventually told him to “just forget it” because he would come to the office the next day to redeem the car. Mr. Holdshoe specifically testified that after that conversation with Mr. Donnantuani, he called Mrs. Franzone at 3:00 a.m. and advised her that Mr. Donnantuani was going to wait to redeem his vehicle when the office opened the next day.

Based on this information, it was error for the trial court to conclude that the jury could infer that Mrs. Franzone—acting either as the operator contemplated by the statute or as a managing member of Zoner, LLC—had notice that Mr. Donnantuani was prepared to redeem the vehicle and that she knowingly refused to meet him within one hour to allow him to recover his car. Without her having this intent, she cannot be convicted of this third-degree felony, either as the operator of George and Sons or as a member of Zoner, LLC. As such, the trial court should have granted Mrs. Franzone’s motion for judgment of acquittal, and we must reverse her judgment and sentence and remand with instructions that she be discharged.⁵Reversed and remanded for discharge.

CASANUEVA, C.J., and WALLACE, J., Concur.

⁵Having resolved this case based on the trial court’s failure to grant the motion for judgment of acquittal, we do not address the other issues raised by Mrs.Franzone on appeal.

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Courtesy of David Edelstein

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MOTION AND, IF FILED, DETERMINED

Opinion filed March 25, 2011.

Appeal from the Circuit Court for Polk

County; James A. Yancey, Judge.

James Marion Moorman, Public Defender, and Megan Olson, Assistant Public

Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Sonya Roebuck Horbelt,

Assistant Attorney General, Tampa, for

Appellee.

Edward Horne appeals his judgment and life sentence for second-degree murder, arguing that the trial court erred in denying his motion to suppress his pre-Miranda¹ statements to law enforcement. Although we conclude the trial court erred in admitting Horne’s pre-Miranda confession, we affirm the judgment and sentence on the basis of harmless error.Horne was charged with second-degree murder for the homicide of Jamaal Wilson, who was shot and killed in June 2007 in Winter Haven. Horne filed a motion to suppress his pre-Miranda statements to law enforcement in which he confessed to the crime. At the hearing on the motion to suppress, three detectives from the Winter Haven Police Department testified that Horne was taken into custody and brought into an interview room. Before advising Horne of his Miranda rights, the detectives showed him a picture of the victim, played a recorded statement by Horne’s brother indicating Horne admitted to the crime, and showed Horne a recovered firearm. Following this sequence of events, Horne confessed that he shot the victim. It was only after Horne’s confession that he was advised of his Miranda rights. The trial court denied Horne’s motion to suppress because Horne’s statements were not made in response to any question.Horne argues on appeal that the trial court erred in denying his motion to suppress his pre-Miranda statements to law enforcement because the detectives’ conduct amounted to custodial interrogation. We agree and conclude that the detectives’ pre-Miranda conduct constituted custodial interrogation because the detectives should have known their actions were reasonably likely to elicit an incriminating response from Horne. “Miranda warnings are required before police

¹Miranda v. Arizona, 384 U.S. 436 (1966).- 2 -

conduct a custodial interrogation of a suspect.”  State v. Martissa, 18 So. 3d 49, 51 (Fla.2d DCA 2009).[T]he term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . . A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.Cuervo v. State, 967 So. 2d 155, 161 (Fla. 2007) (quoting Rhode Island v. Innis, 446 U.S. 291,301-02 (1980)).Although Horne was not subjected to express questioning before he wasgiven Miranda warnings, we conclude that the detectives’ course of action amounted tothe functional equivalent of questioning.  The detectives should have known that theiractions of showing Horne the victim’s picture, playing the recorded statement byHorne’s brother, and showing Horne the recovered firearm, were reasonably likely toelicit an incriminating response from Horne.  And because Horne was not given Mirandawarnings before this course of action, we conclude the trial court erred in denyingHorne’s motion to suppress.Despite this conclusion, the admission of Horne’s pre-Miranda statementswas harmless beyond a reasonable doubt given the overwhelming evidence of guilt.See Ross v. State, 45 So. 3d 403, 434 (Fla. 2010) (applying harmless error analysis).At trial, several eyewitnesses testified in detail about the shooting.  Each witness gave

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consistent testimony that he or she saw Horne and the victim engaged in a verbal confrontation. And their testimony established that Horne removed a gun from his pocket, shot it in the air, and then shot the victim. We therefore hold there is no reasonable possibility that the error in admitting Horne’s pre-Miranda statements contributed to the guilty verdict. See State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986). Accordingly, we affirm Horne’s judgment and sentence.

Affirmed.

LaROSE and KHOUZAM, JJ., Concur.

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CRENSHAW, Judge.

Courtesy of David Edelstein

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MOTION AND, IF FILED, DETERMINED

Opinion filed March 25, 2011.

Appeal from the Circuit Court for

Hillsborough County; Denise A. Pomponio and Gregory P. Holder, Judges.

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public

Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Susan M. Shanahan,

Assistant Attorney General, Tampa, for

Appellee.

Xavier D. Howard challenges his convictions and sentences for possession of cocaine with intent to deliver within 1000 feet of a school, possession of cannabis, and driving while license suspended or revoked (DWLSR) following his guilty plea. Mr. Howard’s appellate counsel initially filed an Anders¹ brief, asserting that no issue of arguable merit could be found to support significant reversible error in this case.But our review of the record and of the applicable law reflected issues of potential merit in the denial of Mr. Howard’s motion to suppress, which he preserved for appellate review and which could affect his drug-related convictions. Accordingly, we directed the parties to file supplemental briefs addressing the denial of Mr. Howard’s motion to suppress. After reviewing the parties’ supplemental briefs, we affirm.

In the circuit court, Mr. Howard challenged the search of a vehicle that he was driving and moved to suppress tangible evidence discovered in the vehicle and his statements following his arrest for DWLSR. A warrant had been issued to search the premises onto which Mr. Howard drove just before the warrant was executed. And law enforcement officers searched Mr. Howard’s vehicle incident to his arrest for DWLSR and under the authority of the warrant. Following an evidentiary hearing, the circuit court found that the search was valid as a search incident to Mr. Howard’s arrest and under the warrant. Accordingly, the circuit court denied Mr. Howard’s motion to suppress.But the search occurred—and the circuit court ruled on the motion to suppress—before the United States Supreme Court issued its decision in Arizona v. Gant, 129 S. Ct. 1710 (2009). Gant held that a search incident to an arrest must be justified by interests of officer safety or to preserve evidence, stating as follows:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be

¹Anders v. California, 386 U.S. 738 (1967).- 2 -

unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.Id. at 1723-24 (emphasis added).  Because Gant issued after the suppression hearingin this case, the parties did not address the limitations imposed by Gant and the circuitcourt did not make any factual findings relevant to Gant.  But the record suggests thatthe subject search did not fall within the limitations of Gant, and the parties have notpersuasively argued in their supplemental briefs that the search of Mr. Howard’s vehicleincident to his arrest was permissible under Gant or that another exception to thewarrant requirement applied under the facts developed at the suppression hearing.Thus it appears that the search of Mr. Howard’s vehicle incident to his arrest was illegalunder Gant.We conclude that the good faith exception to the exclusionary rule² wouldapply to this pre-Gant search that was in the pipeline when Gant was decided.  TheFirst and Fifth Districts have held that the good faith exception applies to such searches.See State v. Harris, 36 Fla. L. Weekly D133, D134 (Fla. 1st DCA Jan. 19, 2011); Brownv. State, 24 So. 3d 671, 680-82 (Fla. 5th DCA 2009). In Harris, the First District observed “that the exclusionary rule is intended to deter police misconduct, not to remedy the prior invasion of a defendant’s constitutional rights.” Id. at D134. And before the Supreme Court’s decision in Gant,

²Because the purpose of the exclusionary rule is to deter police mis-conduct, “[i]t is a rule of last resort, only to be applied when it ‘result[s] in appreciable deterrence’ and the benefits of deterrence outweigh the societal costs of suppressing evidence, thereby frustrating the truth-seeking process.” Brown v. State, 24 So. 3d 671, 680 (Fla. 5th DCA 2009) (quoting United States v. Leon, 468 U.S. 897, 909-10 (1984)). Thus, the exclusionary rule applies when police misconduct is “deliberate, reckless, or grossly negligent . . . or in some circumstances recurring or systemic negligence,” but not when police have acted in good faith. Id. (alteration in original) (quoting Herring v.United States, 555 U.S. 135, 129 S. Ct. 695, 702 (2009)).

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[t]he bright-line rule of [New York v. Belton, 453 U.S. 454

(1981)], which approved searches of a vehicle’s passenger compartment after the police had secured the arrestee, had been accepted for 28 years, [and] “was taken literally by federal courts across the country and all of the courts in Florida,” and was “widely taught in police academies.”Id. (quoting Brown, 24 So. 3d at 680-81).  Thus, “[t]o apply the exclusionary rule in[such] case[s] cannot possibly deter police because they did exactly what they weretrained to do based on what we (judges) told them was appropriate.”  Id. (quotingBrown, 24 So. 3d at 681).Here, the search occurred on May 30, 2008, and the circuit court ruled onMr. Howard’s motion to suppress on January 7, 2009. Mr. Howard filed his notice of appeal on March 3, 2009, and the opinion in Gant issued on April 21, 2009. Thus this case involves a pre-Gant search, and Mr. Howard’s appeal was “in the pipeline” when the Supreme Court decided Gant. We adopt the reasoning in Harris and Brown andconclude that the good faith exception applies to the search incident to arrest in thiscase, where the officers conducted the search incident to Mr. Howard’s valid arrest forDWLSR in accordance with the then-existing precedent.³In addition, based upon our review of the record, the applicable case law,and the parties’ supplemental briefs, we conclude that the search of the vehicle that Mr.Howard was driving fell within the scope of the subject warrant and that the search wasnot illegal.  The warrant stated in pertinent part as follows:This warrant shall include the house and all sheds and/or out building affixed or unaffixed to the main structure

³For an exhaustive list of state and federal cases applying the good faith exception to the exclusionary rule to pre-Gant vehicle searches incident to a defendant’s arrest and of those rejecting application of the good faith exception to such cases, see Harris, 36 Fla. L. Weekly at D134 nn.1-2.

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of the residence on the said premises. The warrant shall also include all vehicles on the premises and curtilage of 3002 North Sanchez Street, Hillsborough County, Tampa[,] Florida, under the control of the occupants and/or persons present in the residence during the execution of the search warrant.(Emphasis added.) The circuit court’s finding that Mr. Howard’s vehicle was on the premises when the warrant was executed is supported by competent, substantial evidence in the record. In addition, the record supports the conclusion that the law enforcement officers reasonably believed that Mr. Howard was an occupant of the prem-ises at the time of the search. Thus the search of Mr. Howard’s vehicle was authorized by the warrant. See Lowe v. State, 751 So. 2d 177, 178-79 (Fla. 2d DCA 2000) (holding that a warrant authorizing the search of “any and all . . . vehicles” on the premises permitted police to search the vehicle that the defendant drove onto the premises during execution of the warrant, and quoting State v. Freeman, 673 So. 2d 139, 141 (Fla. 5th

DCA 1996), for the proposition that no “nexus between any vehicle found on the property and the alleged illegal activity” was required when the search was authorized by the warrant); State v. Booream, 560 So. 2d 1303, 1304 (Fla. 2d DCA 1990) (holding same).Because the good faith exception to the exclusionary rule applies to the search of the vehicle incident to Mr. Howard’s arrest and because the search fell within the scope of the warrant, the circuit court did not err in denying Mr. Howard’s motion to suppress. Accordingly, we affirm Mr. Howard’s judgment and sentences.

Affirmed.

WHATLEY and LaROSE, JJ., Concur.

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