Florida Criminal Law Opinions

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

 

CLARENCE EDWARDS,

 

 

Appellant,

 

v.                   Case No. 2D09-2399

 

STATE OF FLORIDA,

 

Appellee.

 

Opinion filed April 29, 2011.

Appeal from the Circuit Court for Polk County; Wm. Bruce Smith, Judge.

James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.

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

NORTHCUTT, Judge.

Clarence Edwards was imprisoned for crimes of lewd molestation and, after finishing his sentence, began serving ten years on probation. In this case he has appealed the revocation of his probation for failing to follow the instructions of his

probation officer and failing to abide by the terms of his electronic monitoring. We agree with Edwards’s assertion that the evidence was insufficient to prove the violations, and we reverse the probation revocation.

The terms of Edwards’s probation were modified several times. The final modification before this revocation required, among other things, that he comply with a “curfew 10pm – 6am or as otherwise directed” by his probation officer. He was also required to “[w]ear a GPSA monitor with monthly fee.” The affidavit of violation asserted that Edwards failed to follow the instructions of his probation officer and violated a condition of his probation by failing to remain near his personal tracking device, thereby causing multiple “bracelet gone” alerts between May 16, 2008, and June 8, 2008. The probation officer who signed the affidavit averred that she had learned of these alerts from Pro Tech Monitoring.

No representative of Pro Tech Monitoring testified at the revocation hearing. The records of the company were introduced at the hearing through a correction probation specialist, but they were clearly hearsay—the evidence showed they were compiled and maintained by Pro Tech. The probation specialist, an electronic monitoring coordinator, testified that she printed out the reports from Pro Tech and determined whether a situation required an officer’s attention. Edwards’s report showed numerous “bracelet gone” alerts. Most of the alerts were less than three or four minutes’ duration, and most occurred between 10 p.m. and 4 a.m. Three of the alerts happened during late afternoon, around 4 p.m., and lasted from thirty minutes to an hour. Pro Tech’s report reflected that a company representative had contacted

Edwards during one of these longer alerts and he reported that he was outside working in his yard.

Edwards’s probation officer also testified about the “bracelet gone” violations. She stated that she learned of the alerts from Pro Tech’s report, which had been reviewed by the electronic monitoring coordinators. She talked to Edwards on numerous occasions about the “bracelet gone” issues. He complained that the equipment was not working properly. One time the probation officer was at Edwards’s home conducting an inspection and found the base station of his monitoring device face down on the floor, but she never testified that she was present when an alert actually occurred. The probation officer commented that Edwards expressed his frustration with the device and just seemed to have given up, telling her to send him back to prison.

The circuit court found that Edwards violated the conditions of his probation that required him to follow his probation officer’s orders and to submit to electronic monitoring. Both of these violations were grounded on the “bracelet gone” alerts, but the only evidence of the alerts was hearsay. No one from Pro Tech established that the alerts occurred or was present to authenticate the report as a business record. See Gammon v. State, 778 So. 2d 390, 392 (Fla. 2d DCA 2001) (citing Thomas v. State, 711 So. 2d 96, 97 (Fla. 4th DCA 1998), for the proposition that hearsay evidence falling within an exception to the hearsay rule may support a revocation of probation). Although hearsay evidence, such as Pro Tech’s report, is admissible at a probation revocation hearing, such evidence may not form the sole basis of a decision to revoke. Cuciak v. State, 410 So. 2d 916, 918 (Fla. 1982).

We contrast the facts of this case with those described in Ruise v. State, 43 So. 3d 885 (Fla. 1st DCA 2010), in which the circuit court found a violation of community control based on GPS data compiled by a monitoring company. There the State’s witnesses included an employee of the monitoring company who explained how the GPS system worked and how the data from the system was compiled into a computer database. The testimony of the monitoring company representative qualified its reports as “business records” and was thus sufficient to establish the violation. Id. at 886-87 (also citing Thomas, 711 So. 2d at 97, for the proposition that hearsay evidence that falls within an exception to the hearsay rule may support a revocation of probation); see also Soliz v. State, 18 So. 3d 1094, 1097 (Fla. 2d DCA 2009) (remarking on testimony of “the records custodian at the bracelet monitoring locale”). In this case, the report was hearsay and all the evidence about Edwards’s violation stemmed from the report. Accordingly we reverse the revocation of Edwards’s probation. See Cuciak, 410 So. 2d at 918.

Edwards also asserts that the State failed to prove that his violations were willful. We note that his probation officer testified that Edwards did not seem to care about the alleged bracelet alerts. This evidence suggested a certain willfulness. But Edwards and his daughter both testified that he had experienced repeated problems with malfunctioning monitoring devices. In this case, as in Correa v. State, 43 So. 3d 738 (Fla. 2d DCA 2010), Edwards’s revocation was based on a disregard of the “monitoring rules”; there was no allegation or finding that he had left his home in violation of any restrictive conditions of his probation, such as his curfew. And as in Correa, we are unclear exactly what rules Mr. Edwards violated. He testified that he

was asleep during most of the alleged “bracelet gone” alarms. And, indeed, Pro Tech’s report reflected that most of the alerts occurred in the late evening and early morning hours. Moreover, the report showed that most of the alarms were “cleared” within a minute or so. Even if the report were admissible, no one explained how these alerts violated the terms of Edwards’s monitoring agreement.

As we remarked in Correa, “intentional disregard of the GPS monitoring rules, tampering with the equipment, or actual violations of curfew or other activity restrictions will generally amount to willful and substantial violations of the conditions imposed.” 43 So. 3d at 745; see also Ruise, 43 So. 3d at 888 (finding a willful violation of community control when GPS data showed that the defendant was away from his residence when his conditions required that he remain confined to that residence and that he was wandering the neighborhood on a daily basis). But if the rules violations result from “equipment problems or the subject’s unintentional failure to operate the equipment properly,” such noncompliance does not rise to the level of a willful and substantial violation of probation. Correa, 43 So. 3d at 745.

Reversed.

DAVIS and SILBERMAN, JJ., Concur.

 

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

 

STATE OF FLORIDA,

 

Appellant/Cross-Appellee,

 

v.                           Case No. 2D10-1385

 

OSNER EXANTUS,

 

Appellee/Cross-Appellant.

 

Opinion filed April 29, 2011.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee/Cross­Appellant.

CRENSHAW, Judge.

The State appeals a trial court order granting Osner Exantus’ motion to suppress evidence based on what Exantus alleged was a facially insufficient search warrant. Exantus cross-appeals the denial of his motion to suppress evidence obtained

from an allegedly unlawful vehicle search. We conclude the trial court erred by determining that the magistrate did not have probable cause to issue the warrant, and therefore we reverse the order suppressing the evidence and remand for further proceedings. We affirm, without discussion, the trial court’s ruling with respect to the initial search of the vehicle.

The State charged Exantus with unauthorized acting as a money transmitter and money laundering in excess of $20,000 and less than $100,000 under sections 560.125(5)(b) and 896.101(3), Florida Statutes (2008). In support of these charges, Lee County Sheriff’s Deputy Jason Fithian sought a search warrant to conduct an ion scan1 of the interior of a vehicle driven by Exantus. Deputy Fithian pulled the vehicle over during a routine traffic stop and, after observing Exantus’ irregular behavior, had Bucky, a trained narcotics detection dog, conduct an air sniff around the vehicle. Bucky alerted near the trunk. Exantus consented to a vehicle search, and law enforcement discovered a large shopping bag containing approximately $83,220 in U.S. currency wrapped in dozens of rubber-banded bundles hidden in the rear of the vehicle. Bucky also alerted to the currency during a controlled box test. Based on these circumstances, law enforcement wanted to conduct an ion scan to determine whether additional testing for the presence of drugs would link Exantus to the charges. The search warrant issued by the magistrate contained a sworn affidavit from Deputy Fithian attesting to the circumstances surrounding the stop and subsequent search of the vehicle.

1An ion scan is used to “detect and isolate the location of minute quantities of illegal drugs” through the “scientific technique of ion mobility spectrometry.” Marjorie A. Shields, Annotation, Admissibility of Ion Evidence, 124 A.L.R. Fed. 691, § 2 (2004).

The ion scan detected trace elements of MDMA and cocaine. Exantus moved to suppress the results of the scan arguing, inter alia, that the search warrant was deficient because Deputy Fithian’s affidavit did not contain sufficient information linking Exantus to the suspected narcotics. The trial court agreed, summarily

concluding that the supporting affidavit omitted material information and could not support the magistrate’s finding of probable cause.

Our review of an order involving the suppression of evidence seized pursuant to a search warrant requires us to consider the test used by the magistrate issuing the warrant, the test used by the trial court when ruling on a motion to suppress, and the appropriate appellate standard of review assessing the trial court’s decision. Pilieci v. State, 991 So. 2d 883, 889 (Fla. 2d DCA 2008). The magistrate’s decision as to whether probable cause exists to issue the search warrant is limited to the facts stated in the affidavit. Id. “To establish probable cause, the affidavit must set forth two elements: (1) the commission element—that a particular person has committed a crime—and (2) the nexus element—that evidence relevant to the probable criminality is likely to be located at the place searched.” State v. Vanderhors, 927 So. 2d 1011, 1013 (Fla. 2d DCA 2006). The magistrate must then examine the sufficiency of the probable cause alleged in the affidavit under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983).

The trial court, in turn, must determine “whether the issuing magistrate had a substantial basis for concluding that probable cause existed, and this determination is made by examining the affidavit in its entirety.” Vanderhors, 927 So. 2d at 1013. The trial court should afford “great deference” to the magistrate’s decision

and should not review the magistrate’s decision de novo. Gates, 462 U.S. at 236; Pilieci, 991 So. 2d at 892; Rios v. State, 483 So. 2d 39, 41 (Fla. 2d DCA 1986). Where, as here, the parties also challenge the sufficiency of the affidavit based on material omissions, the trial court “must determine whether the omitted material, if added to the affidavit, would have defeated probable cause, and . . . must find that the

omission resulted from intentional or reckless police conduct that amounts to deception.” Johnson v. State, 660 So. 2d 648, 656 (Fla. 1995) (citing Franks v. Delaware, 438 U.S. 154 (1978));2 see also Pagan v. State, 830 So. 2d 792, 807 (Fla. 2002); Pilieci, 991 So. 2d at 895. Finally, this court reviews the trial court’s probable cause determination “with a presumption of correctness given to the trial court’s conclusion, which in turn would give great deference to the magistrate.” Pilieci, 991 So. 2d at 894; see also Terry v. State, 668 So. 2d 954, 959 (Fla. 1996).

The issuing magistrate was required to rely solely on the affidavit when considering, under the totality of the circumstances, whether there was probable cause that Exantus acted unlawfully under sections 560.125 and 896.101 and whether a nexus to these offenses existed. The affidavit contained information that Exantus behaved erratically during the traffic stop, Bucky alerted during an air sniff and a controlled box test, and $83,220 in U.S. currency was discovered in a plastic bag hidden in the rear of the vehicle. We, like the magistrate, conclude the totality of these factors established a factual basis for the magistrate to find probable cause to issue the search warrant to conduct an ion scan of the vehicle. Yet the trial court, when it

2Nonetheless, the Florida Supreme Court pointed out Franks dealt solely with the problem of misstatements and thus Franks “could not logically be applied precisely the same way to factual omissions from the affidavit.” Johnson, 660 So. 2d at 655.

reviewed the magistrate’s findings, appeared to focus on the sufficiency of the affidavit as to whether there was probable cause to find that Exantus committed a drug offense rather than whether there was probable cause to find that he committed the offenses of acting as a money transmitter and money laundering. The trial court failed to afford great deference to the magistrate’s decision and appeared to apply an improper de novo standard of review.

Moreover, pursuant to Johnson, after finding that Deputy Fithian’s affidavit was insufficient due to material omissions, the trial court should have addressed Exantus’ claims that the omitted material, if added, would have defeated probable cause and that the omissions resulted from intentional or reckless police conduct that amounted to deception. We conclude the addition of most of the omitted material would have strengthened, not defeated, a finding of probable cause. Likewise, there is no indication that Deputy Fithian purposefully misled the magistrate in his affidavit. Therefore, Exantus failed to meet his burden under Johnson.

Accordingly, we reverse, in part, the trial court’s order granting Exantus’ motion to suppress evidence obtained from the ion scan and remand for further proceedings. We affirm the trial court’s order in all other respects.

Affirmed in part, reversed in part, and remanded.

DAVIS, J., Concurs.

SILBERMAN, J., Concurs in result only.

 

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

 

GREGORY EVERETT,

 

Appellant,

 

v.                           Case No. 2D10-2867

 

STATE OF FLORIDA,

 

Appellee.

 

Opinion filed April 29, 2011.

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

Gregory Everett, pro se.

PER CURIAM.

Gregory Everett appeals the order denying his timely motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which raised four grounds for relief. We reverse and remand for further proceedings on ground two only.

Everett alleged under oath that he was deprived of due process when the trial judge failed to dismiss the jury for misconduct after the prosecutor, the victim, and the victim’s mother “held a conference” with jurors in a courthouse corridor during a recess. Everett further claimed that his trial attorney brought this matter to the judge’s attention in open court but that the judge failed to inquire about the substance of the hallway discussion.

Attached to Everett’s motion was his trial counsel’s affidavit, which supported the contention that the attorney had alerted the trial judge about the potentially improper conversation between one or more jurors and the victim but that portion of the proceedings was not recorded. In response, the State conceded the need for a hearing to resolve issues relating to possible witness contact with the jurors during trial. The postconviction court then ordered an evidentiary hearing on this matter. However, before the hearing was held, a successor judge sua sponte denied the motion on the merits, finding that Everett was not entitled to an evidentiary hearing because claims of trial court error must be raised on appeal rather than in a rule 3.850 motion.

Nothing attached to the order on appeal demonstrates that the issue Everett raised in his postconviction motion could have been raised on direct appeal. Indeed, the allegations appear to be that the trial judge and trial counsel failed to have the court reporting system in place or operating when the matter was addressed to the judge.1 If that is the case, given that trial counsel was not the appellate counsel, there would have been little or no ability for appellate counsel to even appreciate that the issue existed.

1From our record, we cannot determine whether the trial was digitally recorded or whether there was a court reporter present at trial.

We conclude that this motion could not be summarily denied on the grounds relied upon by the postconviction court. Accordingly, we reverse and remand for further proceedings. We would note that the State, while conceding that an evidentiary hearing was necessary, did not concede that the motion was facially sufficient to establish the prejudice prong of Strickland.2 See Thompson v. State, 990 So. 2d 482, 490-91 (Fla. 2008) (requiring a showing that the result of the proceeding was rendered unreliable, and confidence in the outcome undermined by counsel’s deficiency). On remand, the postconviction court is authorized to allow Everett to amend his motion to allege prejudice in greater detail. However, given that the motion was filed in 2002 and it alleges a due process violation, the postconviction court may find that it is more expedient at this time to conduct an evidentiary hearing to determine the facts surrounding the alleged hallway conference.

Affirmed in part; reversed in part; and remanded.

ALTENBERND, NORTHCUTT, and KELLY, JJ., Concur.

2Strickland v. Washington, 466 U.S. 668, 687 (1984).

 

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IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

MICHAEL NIEMINSKI,

 

Appellant,

 

v.           Case No. 2D10-1087

 

STATE OF FLORIDA,

 

Appellee.

Opinion filed April 29, 2011.Appeal from the Circuit Court for CollierCounty; Frederick R. Hardt, Judge.Lee Hollander of Law Offices of Hollander and Hanuka, Naples, for Appellant.Pamela Jo Bondi, Attorney General,Tallahassee, and Marilyn Muir Beccue,

Assistant Attorney General, Tampa, for

Appellee.

ALTENBERND, Judge.

Michael Nieminski appeals his judgment and sentence for trafficking in cannabis in excess of twenty-five pounds. He pleaded no contest to this charge and reserved the right to challenge the denial of the dispositive motion to suppress evidence obtained after law enforcement officers executed a search warrant on a marijuana growhouse. The critical issue in this case is whether, without a warrant, deputies may enter a suburban or rural acreage completely surrounded by a six-foot chain-link fence in order to conduct a knock and talk at the front door of a residence. The only entrance to the property was a driveway that had a closed, but unlocked, gate that could be readily opened. The property was not posted with “no trespassing” signs, and a horse and three friendly dogs were inside the fencing.

Although not specifically argued by Mr. Nieminski, we recognize that the two deputies who initially entered the property for a knock and talk might have been trespassing. Even if the entry onto the property could be characterized as a trespass, that possibility by itself would not be enough to constitute a violation of the Fourth Amendment justifying a remedy under the exclusionary rule. The deputies entered this property through the unlocked gate for the purposes of a knock and talk, which is a form of citizen’s encounter. Mr. Nieminski had the initial burden in this case to establish that he had a reasonable expectation of privacy that included an expectation that citizens would not enter the property through the unlocked gate to knock on his door for the ordinary purposes for which people knock on doors under similar circumstances. He failed to establish that his expectation of privacy at this property included protection for such a limited intrusion. Because the evidence gathered to support the search warrant arose from that brief intrusion into the curtilage, we affirm the judgment and sentence on appeal.I. The FactsIn early May 2009, Mr. Nieminski and his girlfriend moved into a single-family, three-bedroom house in Collier County. Although the address of the house was

 

 

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a street number on 56th Avenue Northeast in Naples, Florida, this “neighborhood” inNaples is actually a sparsely populated area with platted acreages. This particular property was approximately two or three acres. It included the house and a modest stable capable of housing a few horses. A standard, six-foot chain-link fence surrounded the property along its borders. The house was set back at least 100 feet, and only a driveway led to the house. There was no pedestrian gate in the fence. The gate for the driveway had once been operated electronically, but it is undisputed that the gate opened by hand in 2009. The property was not posted and did not have any other signs that might discourage a person from entering for the purpose of knocking on the front door.

Mr. Nieminski and his girlfriend were living in the house in order to tend a sizable marijuana crop that was being grown under lights in some of the rooms in the house. It is undisputed that Mr. Nieminski was not only working in this house but also was eating and sleeping there.In June 2009, the Collier County Sheriff’s Office received an anonymous tip that marijuana was being cultivated at this house. Several deputies went to the house to check out the tip. When they arrived, they could see a pickup truck parked next to the house. They decided to perform a knock and talk if the gate to the property was unlocked. One of the deputies checked the gate and determined that it was not locked and that he could readily slide the gate open.

Two of the deputies entered the property through the gate. Inside the fence, they encountered Mr. Nieminski’s horse and his three dogs. The deputies then walked to the front porch of the house, which faced the road. They knocked on the front

 

 

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door, but no one answered. Standing at the front door, both officers smelled the odor of marijuana through a partially opened window on the front porch.

The two officers left to obtain a search warrant while the other officers remained behind at the roadside. The affidavit the officers prepared in support of a warrant included all of the important facts except for the existence of the fence and the unlocked gate.

A magistrate issued the search warrant, and the officers returned to the home that same afternoon. The search of the home revealed forty-one marijuana plants weighing approximately sixty-nine pounds, a grow room, and various machinery. The officers arrested Mr. Nieminski and his girlfriend on the property, and the State charged them with trafficking in cannabis in excess of twenty-five pounds.

Mr. Nieminski moved to suppress the evidence obtained during the search. The trial court, after conducting an evidentiary hearing, denied the motion in a written order. The trial court concluded that Mr. Nieminski could not challenge the search because he did not have a reasonable expectation of privacy at the house. The court reasoned that he was not an owner or tenant of the home and that the premises were being used as a commercial enterprise. Despite this determination that Mr. Nieminski could not challenge the search, the court continued its Fourth Amendment analysis and concluded that the smells the officers perceived from the front porch provided sufficient probable cause to issue the warrant. After the denial of the motion,Mr. Nieminski negotiated a plea in this case, reserving the right to appeal the denial of the dispositive motion to suppress.

 

 

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We conclude that the trial court erred in determining that Mr. Nieminski could not challenge the search because he did not have a reasonable expectation of privacy in the residence. Nevertheless, like the trial court, we conclude that officers seized the evidence pursuant to a valid search warrant. The fact that the officers developed the evidence essential for the issuance of the search warrant during an attempt to conduct a knock and talk, after walking through an unlocked gate to approach the front door, does not invalidate the warrant under these facts. Because the knock and talk was not itself an act that violated Mr. Nieminski’s reasonable expectation of privacy, it was not a violation of the Fourth Amendment. Accordingly, the omission of the facts about the fence and the gate in the affidavit does not invalidate the warrant or require the suppression of the evidence seized during the search pursuant to the warrant.II. Mr. Nieminski had a reasonable expectation of privacy in the residence that allowed him to challenge the search warrant.There was a time when the courts of Florida addressed FourthAmendment issues involving searches of real property by determining whether the defendant had a right to raise the issue as a victimized “owner, lessee or tenant, or the lawful occupant of the premises searched.” Tribue v. State, 106 So. 2d 630, 633 (Fla. 2d DCA 1958). The courts often described this as an issue of “standing,” and there is still a tendency to frame this threshold issue as such. State v. Washington, 884 So. 2d 97, 98 (Fla. 2d DCA 2004).

Nevertheless, it is now well established that most Fourth Amendment issues are not addressed by any typical preliminary analysis of “standing.”

 

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Hicks v.State, 929 So. 2d 13, 16 n.3 (Fla. 2d DCA 2006).1 Instead, before the trial courtconsiders the merits of a Fourth Amendment motion to suppress, the defendant mustfirst establish a factual basis justifying his or her claim to have possessed a FourthAmendment right at the time of the alleged invasion. This analysis is actually the first part of the substantive legal analysis of a Fourth Amendment claim. As we explained in Hicks: The United States Supreme Court has held that Fourth Amendment rights are personal and a defendant has the burden to establish that his own Fourth Amendment rights have been infringed. Rakas v. Illinois, 439 U.S. 128 (1978); see also Dean v. State, 478 So. 2d 38, 40 (Fla. 1985). Whether a defendant has a reasonable expectation of privacy is a threshold inquiry. Rakas, 439 U.S. 128. A search violates a defendant’s Fourth Amendment rights only if (1) a defendant demonstrates that he or she had an actual, subjective expectation of privacy in the property searched and (2) a defendant establishes that society would recognize that subjective expectation as objectively reasonable. Minnesota v. Olson, 495 U.S. 91, 95 (1990); Smith v. Maryland, 442 U.S. 735, 740-41 (1979).Id. (footnotes and parallel citations omitted).This two-fold analysis used to determine whether a person has the type of interest protected by the Fourth Amendment emanates from Katz v. United States, 389U.S. 347, 361 (1967), and specifically from Justice Harlan’s concurring opinion.Scholars question whether the first subjective prong of this analysis is appropriate. 1Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.1(c)

 

1A full discussion of “standing” in this context is beyond the scope of this opinion. There are cases in which the initial issue is whether the person making aFourth Amendment claim has standing to raise it. See 6 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 11.3 (4th ed. 2004). In this case, however, the “standing” issue and the substantive issue, both of which require analysis of Mr. Nieminski’s reasonable expectation of privacy, are essentially the same.- 6 -

 

(4th ed. 2004). In Mr. Nieminski’s case, as will be seen, the critical privacy issues concern only the second prong of the analysis.

In this case, the trial court received evidence that Mr. Nieminski had not changed the address on his driver’s license to the address of the grow house. It also considered the fact that Mr. Nieminski provided another address as his residence when he was booked into the county jail. While this evidence might be relevant to determine residency or domicile, we are not convinced that it is more than marginally relevant in deciding the two-pronged threshold inquiry described above.

Under some circumstances, even an overnight guest can have the right to challenge a search. See generally Minnesota v. Olson, 495 U.S. 91 (1990). Courts have held a short-term visitor engaged in drug operations to have no reasonable expectation of privacy. See, e.g., Minnesota v. Carter, 525 U.S. 83, 90-91 (1998); see generally Washington, 884 So. 2d 97 (discussing the Rakas test in the context of a short-term, casual guest). But Mr. Nieminski was hardly a short-term visitor.The trial court was also convinced to rely on the theory that society would not recognize as objectively reasonable Mr. Nieminski’s subjective expectation of privacy because the marijuana grow house was a commercial venture. Admittedly, a commercial venture can create an environment in which persons have a reduced expectation of privacy. There are cases in which courts have held that persons engaged in drug-related activities have no reasonable expectation of privacy because the operation was a commercial venture. See Carter, 525 U.S. at 90-91. The State, however, has provided no authority for the proposition that a clandestine marijuana

 

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grow house, also functioning as a home, with a resident employee and no commercial invitees has such a reduced expectation of privacy.

It is undisputed that Mr. Nieminski, his girlfriend, his horse, and his three friendly dogs had been living at this grow house for approximately a month before the execution of the search warrant. Mr. Nieminski was not a trespasser on this property; he was both working and living full time at this location. We conclude that these undisputed facts, in addition to providing a solid foundation for a country-western song, are sufficient to satisfy Mr. Nieminski’s threshold burden under the Katz analysis: (1) he clearly demonstrated that he had an actual, subjective expectation of privacy in the property searched, and (2) given that the premises appeared from the exterior and to a large extent even from the interior to be a typical, quiet home on the boundaries between urban and rural living, he established that society would recognize that his subjective expectation was objectively reasonable. Accordingly, the trial court was required to address his motion to suppress on the merits to determine whether the search warrant was properly issued. Fortunately, the trial court did proceed in this case to address the merits of the motion.III. The analysis in this case must narrowly focus on whether the entry onto the property for a knock and talk violated the Fourth Amendment.This case is not the typical case in which a defendant argues that a law enforcement officer omitted factual information from an affidavit in an effort to establish probable cause where none existed. See generally Pilieci v. State, 991 So. 2d 883, 892-94 (Fla. 2d DCA 2008); see also State v. Rabb, 920 So. 2d 1175, 1180-81 (Fla. 4thDCA 2006). Instead, Mr. Nieminski is arguing that the law enforcement officer should have revealed to the magistrate that he or she obtained the relevant information by a

 

 

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means that was itself a violation of the Fourth Amendment. As a result, in this context, we do not need to evaluate the sufficiency of the affidavit or the validity of the warrant if we first conclude that the entry onto the property and the knock and talk did not violate the Fourth Amendment. If the officers’ actions did not violate the Fourth Amendment, the officers did not need to include the circumstances relating to the fence and gate in the affidavit, and the evidence described in the affidavit was clearly sufficient to obtain the warrant.

We conclude that the entry onto the property and the knock and talk did not violate the Fourth Amendment. This step of our analysis returns us to the Katz test but this time to determine more narrowly whether Mr. Nieminski had a protected expectation of privacy as to persons approaching his front door.IV. Mr. Nieminski did not establish that his reasonable expectation of privacy included the right to assume that ordinary citizens would not open his gate and knock on his front door occasionally.The dispositive issue in this case is whether a law enforcement officer may open a closed, but unlocked, driveway gate on a rural or suburban acreage that is completely surrounded by a chain-link fence in order to walk to the front door of a house to engage in a knock and talk. At least in the absence of a “no trespassing” sign or similar warning that the fence and gate are intended to keep people out rather than to keep animals in, we conclude that the officer may enter the curtilage for this limited purpose.

It is worth emphasizing that the burden of proof on this issue fell upon Mr. Nieminski. In most Fourth Amendment cases, the burden of proof is on the State if the search is warrantless, Hilton v. State, 961 So. 2d 284, 296 (Fla. 2007), and upon the

 

 

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defendant if the search was pursuant to a warrant, State v. Bell, 417 So. 2d 822, 823(Fla. 4th DCA 1982). This case, however, involves the threshold question of whetherMr. Nieminski had a protectable expectation of privacy for purposes of the FourthAmendment. The burden of proof and persuasion on this threshold issue is generally placed upon the defendant by courts that have addressed this issue. State v. Rewolinski, 464 N.W.2d 401, 406 (Wis. 1990); see also United States v. Cavely, 318 F.3d 987 (10th Cir. 2003); United States v. French, 291 F.3d 945 (7th Cir. 2002).In this case, the officers employed legitimate investigative methods that did not constitute a search. Some police investigative tools, while very effective at gathering evidence useful in developing probable cause, are not deemed to be searches. For example, an officer may rummage through your trash can at the curb and take its contents without conducting a search or seizure. See California v. Greenwood, 486 U.S. 35, 39-40 (1988); State v. Slatko, 432 So. 2d 635, 635 (Fla. 3dDCA 1983); State v. Schultz, 388 So. 2d 1326, 1329 (Fla. 4th DCA 1980). Most relevant to this case, a citizen’s encounter, including a knock and talk, is not regarded as a search or seizure. See State v. Navarro, 19 So. 3d 370, 372-73 (Fla. 2d DCA2009); Luna-Martinez v. State, 984 So. 2d 592, 598 (Fla. 2d DCA 2008); State v. Triana, 979 So. 2d 1039, 1043 (Fla. 3d DCA 2008). As we explained in Hardin v. State, 18 So. 3d 1246, 1247 (Fla. 2d DCA 2009): “A ‘knock and talk’ is a purely consensual encounter, which officers may initiate without any objective level of suspicion.” (Citations omitted.)

In Luna-Martinez, we further explained:”A ‘knock and talk’ ” encounter “is a procedure [ordinarily] used by police officers to investigate a complaint

 

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where there is no probable cause for a search warrant.”Murphy v. State, 898 So. 2d 1031, 1032 n.4 (Fla. 5th DCA 2005). In employing this procedure, “police officers knock on the door, try to make contact with persons inside, and talk to them about the subject of the complaints” underlying the investigation. Id. Such a consensual encounter may lead to a request by the police for voluntary consent to conduct a search. “Courts generally have upheld [the knock-and-talk] investigative procedure as a legitimate effort to obtain a suspect’s consent to search.” United States v. Chambers, 395 F.3d 563, 567 n.2 (6th Cir. 2005). The key to the legitimacy of the knock-and-talk technique—as well as any other technique employed to obtain consent to search—is the absence of coercive police conduct, including any express or implied assertion of authority to enter or authority to search. In properly initiating a knock-and-talk encounter, the police should not “deploy overbearing tactics that essentially force the individual out of the home.” United States v.Thomas, 430 F.3d 274, 277 (6th Cir. 2005). Nor should “overbearing tactics” be employed in gaining entry to a dwelling or in obtaining consent to search.984 So. 2d at 598-99.When a court holds that such an investigative method is not a search, inessence, the court is stating that such conduct is either so minimally intrusive in theeyes of the general public or that the conduct is committed with such frequency bymembers of the public other than police officers that no one in society has a reasonableexpectation of privacy that protects them from the challenged conduct. These judicialrulings arguably are bright-line rulings in a field of law that normally eschews brightlines.In this case, if the address in Naples, Florida, had been a more traditionallot in a residential neighborhood surrounded by a white picket fence and a gate thatclosed but did not lock, no one would reasonably suggest that the knock and talk wasimproper or that officers were required to describe the picket fence in the affidavit used

 

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to obtain the warrant. On the other hand, if the fence in this case was solid and had barbed wire at the top, a large combination lock on the gate, a “no trespassing” sign, a telephone number to call for entrance, and three bad dogs, no one would reasonably suggest that the police had the authority to climb over the fence to conduct a knock and talk. See, e.g., United States v. Hambelton, No. 1:08cr26-SPM, 2009 WL 722284 (N.D. Fla. Mar. 18, 2009). In other words, there are cases in which an established bright-line rule generally authorizing police conduct begins to fade, and we engage in the more traditional case-specific analysis of all the circumstances to determine whether specific police conduct is a search despite the general bright line established by the case law. The knock and talk in this case seems to fall into that category. That is why we have chosen to return to the Katz test to determine more narrowly whether Mr. Nieminski had a protected expectation of privacy as to persons approaching his front door where such conduct constitutes a statutory trespass. We have found no Florida case expressly addressing this issue.Undoubtedly, the most troublesome fact in this case is the fact that the deputies’ entry onto the property arguably may have been a violation of section 810.09, Florida Statutes (2008). The officers willfully entered the property without being expressly authorized, licensed, or invited to enter. Although no one on the property communicated to them that they could not enter, and the property was not posted with signs, the property was “fenced land” and is considered enclosed and posted. See §§ 810.09(1)(a)(1), 810.011(7), (8). It is not necessary in Florida to post enclosed land in order to obtain the benefit of section 810.09 if the property includes a dwelling house and does not exceed five acres in size. § 810.011(5)(b). A violation of the statute is

 

 

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more than civil trespass; technically, it is a misdemeanor—albeit one that is rarely prosecuted. See § 810.09(2)(a). Accordingly, if the actions here constituted a statutory trespass and if such a statutory violation automatically results in a violation of the Fourth Amendment, this knock and talk violated the Fourth Amendment, and the evidence that was the fruit of this entry could not be used to obtain the search warrant.

Although common law or statutory trespass and the Fourth Amendment involve interrelated legal concepts, it is well established that an officer’s trespass does not necessarily amount to a violation of the Fourth Amendment. See, e.g., United States v. Dunn, 480 U.S. 294, 304-05 (1987) (holding government agents’ trespass did not violate the Fourth Amendment where they crossed over defendant’s perimeter fence and interior fences to observe defendant’s barn); Oliver v. United States, 466 U.S. 170, 177 (1984) (holding officers’ criminal trespass on defendant’s fenced and posted land did not violate the Fourth Amendment); Sarantopoulos v. State, 629 So. 2d 121, 123(Fla. 1993) (holding officer’s civil trespass on neighbor’s land in order to observe defendant’s backyard did not constitute a Fourth Amendment violation). Even if the actions of the officers in this case could be deemed a trespass, that fact alone is insufficient to transform the officers’ conduct into a violation of the Fourth Amendment. A government intrusion that constitutes a trespass becomes a Fourth Amendment violation only when it “infringes upon the personal and societal values protected by the

Fourth Amendment.” Oliver, 466 U.S. at 182-83. “The existence of a property right is but one element in determining whether expectations of privacy are legitimate.” Id. at

- The hallmark of the analysis is whether a person enjoyed a ” ‘constitutionally 13 -

 

protected reasonable expectation of privacy’ ” in the intruded area. Id. at 177 (quotingKatz, 389 U.S. at 360) (Harlan, J., concurring).Hence, it was Mr. Nieminski’s initial burden to establish that he had a reasonable expectation that ordinary citizens would not occasionally enter his property by opening the gate and walking up the driveway to the front door to communicate with the occupant for all of the many reasons that people knock on front doors. However,Mr. Nieminski provided no evidence that other people had not opened the gate and walked to his front door during the period that he had lived in the home. Indeed, the evidence did not establish that persons approaching the property would or should know that they were not welcome to enter through the unlocked gate in order to approach the front door to deliver something or to make contact with the occupants of the home. It is quite apparent from the deputies’ testimony that they did not perceive that it might be a trespass for them to walk to the house if the gate was unlocked. In this case, an ordinary person might have concluded that the gate was closed, but unlocked, to keep animals in the enclosure and not to keep people out. Had there been other indicia that entry onto the property was unwelcome, our conclusion might be different.The Eleventh Circuit has had occasion to address a somewhat similar circumstance arising in a rural setting. See United States v. Taylor, 458 F.3d 1201 (11th Cir. 2006). In that case, an officer was sent in the night to a home from which a 911 call had been made, but the person calling 911 had hung up. Id. at 1203. The property was fully fenced and the officer drove onto the property through an unlocked gate. The officer was not there intending to perform a search but rather to check on the

 

 

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safety of the occupants. Id. The Eleventh Circuit held that the knock and talk did not violate the Fourth Amendment. Id. at 1204-05.

In Hambelton, 2009 WL 722284, at *1, the court considered a case similar to this case involving a marijuana grow operation. In that case, the court held the entry onto the property by the officers was illegal and the warrant invalid. Id. at *7. In Hambelton, however, the gate was locked with two padlocks and had two warning signs explaining that the property was guarded by dogs. Id. at *1.

The photographs and video in this court’s record could be better, but they establish that the building on this property is an ordinary home. Even if the mail is delivered to a roadside mailbox, it is clear that an occupant of this house should reasonably expect an occasional deliveryman, salesperson, other solicitor, or neighbor to approach the front door through the unlocked gate. This is particularly true when nothing in the record suggests that contact with the occupants could readily be made in any other manner, such as through a call box at the gate or a sign with a phone number on it. Accordingly, we hold that Mr. Nieminski failed to establish that his reasonable expectation of privacy in this house included an expectation that persons would not occasionally enter through the gate and approach the front door to talk to him. Since the deputies discovered the critical evidence while engaged in such conduct, we conclude that the deputies did not violate the Fourth Amendment, and the trial court properly denied the motion to suppress the evidence obtained during the subsequent search. Affirmed.

SILBERMAN and BLACK, JJ., Concur.

 

 

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

 

LAURENT DORIVERT,

Appellant,

v.                    CASE NO. 5D09-1906

STATE OF FLORIDA,

Appellee.

 

Opinion filed April 29, 2011

Appeal from the Circuit Court for Orange County,

Mark Lubet, Judge.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Laurent Dorivert timely appeals a jury verdict convicting him of the first-degree murder of his wife, Marie Dorivert. He contends that the trial court erred in denying his motion for judgment of acquittal in this circumstantial evidence case. We have carefully considered the evidence presented at trial in light of the standard applicable in circumstantial evidence cases. See, e.g., McArthur v. State, 351 So. 2d 972, 976 (Fla. 1977). More specifically, we find that the eye witness testimony placing Dorivert at the

scene of the murder in the narrow time frame during which the murder occurred, along with the blood and DNA evidence linking Dorivert to the murder scene were sufficient to rebut Dorivert’s proffered hypothesis of innocence — that he was running errands and nowhere near the crime scene during or after the murder, so that someone else must have committed the crime.

AFFIRMED.

TORPY, LAWSON, and COHEN, JJ., concur.

 

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

 

STATE OF FLORIDA,

Appellant,

v.                     CASE NO. 5D10-1993

A.D.C., A CHILD,

Appellee.

 

Opinion filed April 29, 2011

Appeal from the Circuit Court for Orange County,

Alicia L. Latimore, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellee.

LAWSON, J.

The State appeals from an order denying its motion to continue a restitution hearing, and setting restitution at zero, when the State did not have a necessary witness present for the hearing. This is one of a number of cases pending before us from the same juvenile delinquency division in the Florida’s Ninth Judicial Circuit, decided adversely to the State by the same judge. In each case, the State did not have

witnesses present at a duly noticed trial or evidentiary hearing, and the trial judge declined to continue the trial or hearing to allow the State another chance to produce its witnesses. Finding that the trial court abused its discretion by not granting the requested continuance in this case, we reverse. See State v. Humphreys, 867 So. 2d 596 (Fla. 2d DCA 2004) (the denial of a motion to continue an evidentiary hearing is reviewed for abuse of discretion).

The State charged A.D.C. with battery and criminal mischief, alleging that A.D.C. struck his ex-girlfriend and damaged her car in a fit of rage following their break-up. A.D.C. pled no contest to both charges, and agreed to pay restitution in an amount to be proven at a later date. At the time of A.D.C.’s plea, the restitution hearing was set for May 21, 2010, with no prior opportunity given to the State to confirm that its witnesses would be available on this date. Several days before the scheduled hearing, on May 18, 2010, the State filed a motion to reset the hearing on grounds that a necessary witness — a car repair or “body shop” expert who would testify as to the cost of repairing the damage caused by A.D.C. — was unavailable on May 21, 2010.

It is clear from this record that the State was diligent in its attempt to prepare for the hearing and secure the attendance of its necessary witnesses. It had not sought a prior continuance of this matter, and A.D.C. did not establish that he would suffer any prejudice as a result of resetting the hearing to a date and time when the State’s witnesses would be available. In fact, our review of the record indicates that the State established all “four factors” necessary to secure a continuance due to witness unavailability in this case. See Humphreys, 867 So. 2d at 598 (“A party seeking a continuance due to witness unavailability must establish four factors: ‘(1) prior due

diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance caused material prejudice.’”) (quoting Geralds v. State, 674 So. 2d 96, 99 (Fla.1996)).

Under these circumstances, it was an abuse of discretion to deny the State’s motion to continue the hearing. Id. Accordingly, we reverse the restitution order and remand with instructions that the trial court reset the restitution hearing.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MONACO, C.J., and JACOBUS, J., concur.

 

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

 

STATE OF FLORIDA,

Appellant,

v.                           CASE NO. 5D10-2919

S.M.M., A CHILD,

Appellee.

 

Opinion filed April 29, 2011

Appeal from the Circuit Court for Orange County,

Alicia L. Latimore, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellee.

LAWSON, J.

The State appeals from an order dismissing its delinquency petition charging S.M.M. with one count of possession of cocaine. This is one of a number of cases pending before us from the same juvenile delinquency division in the Florida’s Ninth Judicial Circuit, decided adversely to the State by the same judge. In each case, the State did not have witnesses present at a duly noticed trial or evidentiary hearing, and

the trial judge declined to continue the trial or hearing to allow the State another chance to produce its witnesses. We have reviewed each case applying an abuse of discretion standard. State v. L.J.T., 921 So. 2d 746, 747 (Fla. 5th DCA 2006) (an order of dismissal is reviewed on appeal for abuse of discretion); State v. Humphreys, 867 So. 2d 596 (Fla. 2d DCA 2004) (the denial of a motion to continue an evidentiary hearing is reviewed for abuse of discretion).1 Finding no abuse of discretion with respect to this case, we affirm dismissal of the charge against S.M.M.

The court initially placed S.M.M. into a pretrial diversion drug court program, which would have resulted in dismissal of the charge upon successful completion of the program. However, S.M.M. was discharged from drug court after several months of supervised participation, and the case was ultimately placed back on the trial court’s active docket upon motion by the State.2 The adjudicatory hearing (trial) was initially set for 8:00 a.m. on June 29, 2010. For reasons not apparent from the record before us, the trial was then rescheduled for 8:00 a.m. on July 1, 2010.

On July 1, 2010, the State moved to continue the trial on grounds that it was “not sufficiently prepared for trial.” The trial court granted the State’s motion to continue, and reset the trial for 8:00 a.m. on August 12, 2010. When the case was called at 10:45

1 S.M.M. alternatively argues that because the dismissal was entered after the start of trial, when jeopardy should have “attached,” this case should be viewed as “akin to” a judgment of acquittal entered in a criminal case — from which the State has no right of appeal. Given our affirmance of the dismissal applying an abuse of discretion standard, we need not address this issue.

2 The record contains a document dated July 24, 2009, notifying the parties that S.M.M. had been discharged from the drug court program. Inexplicably, no action was taken in the case for approximately ten months, when the State filed a request that the case be placed back on the court’s active docket in May 2010. Because S.M.M. had waived her speedy trial rights upon entry into the drug court program, this delay was not raised as an issue on appeal.

a.m. on August 12, 2010, neither of the State’s two witnesses were present at the courthouse. The prosecutor stated that he had spoken with the deputy sheriff listed as one of the two state witnesses at 9:53 a.m. At that time, the deputy reported that he was on his way, but would need to first retrieve the evidence. There is no indication in the record as to exactly when the prosecutor expected either witness to be present in court. The trial judge noted for the record that the witnesses should have been present at 8:00 a.m., almost three hours earlier.

The judge had the halls called for both witnesses, with no response, and then asked the prosecutor how he wished to proceed. The prosecutor replied that he was ready for trial. Although questioning how the State could claim to be ready for trial when it had no witnesses present, the judge allowed the State to present its opening statement. After opening statements, with no witness present to place on the stand, the prosecutor then moved for a continuance to check on the status of the State’s witnesses. The trial court denied the motion, and dismissed the case.

In affirming the trial court’s decision, we of course recognize that “[d]ismissal is an extreme sanction that should be employed only when lesser sanctions would not achieve the desired result.” L.J.T., 921 So. 2d at 747. If this had been an isolated incident, we might well reach a different result. But, it is apparent from this record — and from the other cases before us — that the court was dealing with a systemic problem involving a pattern of repeated failures by the State to produce witnesses for properly noticed trials or other evidentiary hearings. Considering this fact, along with the fact that the State had already secured at least one prior continuance, on the day of trial, when it was not prepared to proceed; the nature of the charge in this case; and, the fact

that almost three hours after the trial was scheduled to start the State had no definitive estimate of when its witnesses might appear in court, and no reasonable explanation as to why they had not appeared on time, we find no abuse of discretion in the dismissal of this case.

AFFIRMED.

MONACO, C.J., and JACOBUS, J., concur.

 

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

 

LATARSA WHITE,

Appellant,

v.                        Case No. 5D10-3371

STATE OF FLORIDA,

Appellee.

 

Opinion filed April 29, 2011

3.800 Appeal from the Circuit Court for Citrus County,

Richard Howard, Judge.

James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, J.

Latarsa White seeks review of the trial court’s order denying her motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, although for reasons other than those relied on by the trial court.1

Ms. White entered a negotiated no contest plea to strong-arm robbery and grand theft and was sentenced as an habitual felony offender (“HFO”) to concurrent terms of forty-eight months in prison on each count. The trial court also orally imposed a one-year term of probation to follow, but did not make clear whether the probationary term applied to both counts or only to the grand theft count. After Ms. White was released from prison, her probation was revoked. Because she had previously been designated as an HFO, Ms. White was sentenced to thirty years in prison for the strong-arm robbery conviction and ten years on the grand theft conviction. Once again, the sentences were ordered to be served concurrently. The revocation of probation and sentences were affirmed on appeal. See White v. State, 970 So. 2d 847 (Fla. 5th DCA 2007). Ms. White next filed a rule 3.850 motion, raising nine claims directed at her trial counsel’s performance in the violation of probation (“VOP”) proceeding. The trial court summarily denied her motion and this Court affirmed on appeal. See White v. State, 38 So. 3d 154 (Fla. 5th DCA 2010).

In the instant rule 3.800(a) motion, Ms. White first alleged that her HFO designation was illegal because her “prior convictions were for possession of cocaine, F.S. 893.13, which are not qualifying offenses for Habitual Offender Status under Florida Statutes 775.084.” The trial court denied this claim, holding that Ms. White was designated as an HFO based upon the necessity of public protection in accordance with section 775.084(3)(a)(6), Florida Statutes. This conclusion, however, has no bearing on the question of whether her habitual offender sentence was supported by the proper predicate convictions.

should affirm under the ‘tipsy coachman’ rule because the trial court reached the right conclusion.”).

As a general rule, a defendant’s contention that she did not have the predicate felonies required to support an HFO designation is cognizable under a rule 3.800(a) claim if her entitlement to relief is clear from the face of the record. See Bover v. State, 797 So. 2d 1246, 1247 (Fla. 2001) (“[W]here the requisite predicate felonies essential to qualify a defendant for habitualization do not exist as a matter of law and that error is apparent from the face of the record, rule 3.800(a) can be used to correct the resulting habitual offender sentence.”). Ms. White’s claim fails because it cannot be demonstrated from the face of the record that she is entitled to relief. Rather, an evidentiary hearing would be necessary to resolve the issue because she stipulated that she qualified as an HFO at the original plea and sentencing hearing in 2003. As a result of that stipulation, the State was not required to introduce the prior predicate felony convictions. Because no prior predicate convictions were introduced at the plea and sentencing hearing, the record is silent, at least in a documentary sense, about her previous convictions.2 As an evidentiary hearing is required to address this claim, it may not be raised in a rule 3.800(a) proceeding. See id. at 1251 n.5. (recognizing limitations of rule 3.800(a) proceeding, including its general prohibition against evidentiary hearings); Gray v. State, 837 So. 2d 612 (Fla. 5th DCA 2003).

Ms. White also alleged that her sentence does not accurately reflect the jail and prison credit that she has earned. The trial court’s order did not address this claim. Notwithstanding, Ms. White does not present a facially sufficient claim. With respect to her pre-sentencing jail time credit, she provides no factual detail regarding the specific

2 During the 2003 plea and sentencing hearing, the trial court did say that Ms. White’s scoresheet reflected prior convictions for “a robbery, a burglary of a structure, possession of cocaine, two counts; grand theft.”

dates that she was in jail prior to the imposition of her original sentence. See State v. Mancino, 714 So. 2d 429, 433 (Fla. 1998). Ms. White must refile her claim for jail credit in a facially sufficient manner. Regarding the prison credit, the Department of Corrections (“DOC”) is responsible for awarding this type of credit. Ms. White must first exhaust her administrative remedies with DOC in order to pursue an award of prison credit. See Phillips v. State, 998 So. 2d 675 (Fla. 4th DCA 2009).

Finally, Ms. White raises an issue that was not contained in her rule 3.800(a) motion. Specifically, she argues that her thirty-year VOP sentence for strong-arm robbery is illegal because she was never sentenced to probation with respect to that charge. At the original 2003 plea hearing, the trial court stated:

THE COURT: I’m going to sentence her in accord with this agreement, waive any entitlement to P.S.I. She’s adjudged guilty of both counts. She’s sentenced on Count I to 48 months’ Department of Corrections, and she’s designated as a habitual felony offender. This 48 months will be concurrent with any sentence she’s presently serving within the Department of Corrections.

And also in Count II, 48 months’ DOC concurrent with Count I and concurrent with any sentence she’s previously serving to be followed by one year drug-offender probation with all the standard conditions . . . .

Ms. White contends that it is clear from the court’s statement that she was never placed on probation with respect to count I and, as a consequence, there was no probation to revoke. Although an interesting issue, we believe that she must first raise the issue in the trial court and allow the trial court to attach records, which conclusively refute the claim, or grant the motion.

For these reasons, we affirm the order denying relief as to Ms. White’s HFO status.3 We dismiss the appeal regarding the remaining issues without prejudice to allow the issues to be raised in the trial court or with the DOC.

AFFIRMED.

COHEN and JACOBUS, JJ., concur.

3 While this claim is cognizable in a rule 3.850 motion, such a claim would most likely be barred as untimely and successive.

 

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

 

MICHAEL T. PARTON,

Appellant,

v.                         Case No. 5D10-3803

STATE OF FLORIDA,

Appellee.

 

Opinion filed April 29, 2011

3.850 Appeal from the Circuit Court for Brevard County,

Robert T. Burger, Judge.

Michael Parton, Crawforville, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Michael Parton appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of Mr. Parton’s first, third, fourth and fifth claims without further elaboration. However, we conclude that Mr. Parton’s second claim, an alleged double jeopardy violation, merits further consideration.

After a jury trial, Mr. Parton was convicted of attempted sexual battery, false imprisonment and battery. The convictions were affirmed on appeal. See Parton v.

State, 37 So. 3d 871 (Fla. 5th DCA 2010). Mr. Parton then filed a rule 3.850 motion for postconviction relief. In his second claim, he contends that his convictions for both attempted sexual battery and simple battery violate double jeopardy principles because they are based on the same acts. Decisional law holds that a defendant can be convicted of both sexual battery and battery. See Herrera v. State, 879 So. 2d 38 (Fla. 4th DCA 2004); Beltran v. State, 700 So. 2d 132 (Fla. 4th DCA 1997). However, if the battery is based on the same acts that form the basis for the sexual battery, double jeopardy prohibits dual convictions. Herrera, 879 So. 2d at 41.

Based on the limited record before us, it cannot be determined if the act that constituted the simple battery was the same act that constituted the attempted sexual battery. Accordingly, on remand, the trial court should either attach portions of the record that conclusively refute Mr. Parton’s claim or grant him an evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.

 

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

 

BROCK R. SHADE,

Appellant,

v.                           Case No. 5D10-4435

STATE OF FLORIDA,

Appellee.

 

Opinion filed April 29, 2011

3.850 Appeal from the Circuit Court for Hernando County,

Jack Springstead, Judge.

Brock R. Shade, Bristol, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Brock Shade appeals an order summarily denying his postconviction claims filed pursuant to Florida Rule of Criminal Procedure 3.850. Shade’s postconviction motion asserted seven grounds of ineffective assistance of counsel. The trial court correctly denied grounds four, five, and six, and we affirm without elaboration. However, it erred in denying Shade’s remaining claims.

In exchange for a significantly reduced sentence, Shade resolved his seven cases involving multiple drug-related charges by pleading guilty in six cases and nolo

contendere in the other. As part of his nolo plea, Shade specifically reserved the right to appeal the trial court’s Williams1 rule decision. On direct appeal, appellate counsel filed an Anders2 brief addressing both the merits of the decision and the fact it was not dispositive or preserved. This court issued a per curiam affirmance. Shade v. State, 7 So. 3d 1117 (Fla. 5th DCA 2009).

Claims one, two and three of Shade’s rule 3.850 motion are interrelated and alleged that counsel was ineffective for misadvising him that the Williams ruling was dispositive and properly preserved for appeal. Shade asserts he would not have entered the plea agreement had he known the Williams ruling was not properly preserved. The trial court denied the claims because there was no record evidence indicating the Williams ruling was dispositive or that Shade’s plea was contingent upon it being dispositive. Rather, “counsel for Defendant merely took the steps to ensure that Defendant’s right to appeal the Court’s Williams rule issue was properly preserved.”

The problem with the trial court’s conclusion is that a Williams rule decision can only be preserved for appellate review if it is dispositive. Failure to preserve an issue for appeal may constitute ineffective assistance of counsel, so long as the requirements of Strickland v. Washington, 466 U.S. 668 (1984), are met. See Merkison v. State, 1 So. 3d 279, 281 (Fla. 1st DCA 2009). A claim that a defendant was induced to enter a plea upon counsel’s erroneous advice that an issue was preserved for appeal is facially sufficient. See Hawley v. State, 822 So. 2d 552 (Fla. 1st DCA 2002). “[T]he voluntariness of a plea can be undercut if the decision to plead is influenced by

1 Williams v. State, 110 So. 2d 654 (Fla. 1959).

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

erroneous advice regarding the defendant’s appellate rights.” Helms v. State, 573 So. 2d 116, 116 (Fla. 2d DCA 1991).

In this case, Shade’s claim was facially sufficient because he alleged that he would not have entered the plea agreement had he known the Williams ruling was not properly preserved. The trial court’s attachments to its order do not conclusively refute this claim. Rather, they reflect that Shade entered the plea under the belief that he could appeal the Williams ruling, he hesitated before entering the plea, and he was assured at least six times that the Williams ruling was preserved for appeal. Shade’s understanding regarding the dispositiveness is best resolved in an evidentiary hearing. Id.

We also note that this court’s prior “per curiam affirmance without opinion on direct appeal does not establish whether the specific issue was or was not preserved for appeal.” Tidwell v. State, 844 So. 2d 701, 702 -03 (Fla. 1st DCA 2003), citing Daniels v. State, 806 So. 2d 563, 564 (Fla. 4th DCA 2002). “In such a case, a per curiam affirmance might just as well have been based on the conclusion that the issue was not preserved, as on the conclusion that the issue, though properly preserved, lacked merit.” Id. at 703.

Accordingly, we reverse and remand for an evidentiary hearing to determine the parties’ understanding regarding the dispositiveness of the Williams ruling and whether Shade would have accepted the plea without this issue being preserved.

We also find the trial court erred in denying Shade’s seventh claim as conclusory. When an initial rule 3.850 motion is determined to be insufficient, the trial court abuses its discretion when it fails to allow the defendant one opportunity to amend the motion.

See Spera v. State, 971 So. 2d 754 (Fla. 2007). We therefore reverse the portion of the trial court’s order denying claim seven, and direct the trial court to strike the claim with leave to amend so long as Shade can do so in good faith.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, COHEN and JACOBUS, JJ., concur.

 

Courtesy of David Edelstein