Florida Criminal Law Opinions

Supreme Court of Florida

No. SC06-1173

STATE OF FLORIDA,

Petitioner,

vs.

CHRISTIAN FLEMING,

Respondent.

[February 3, 2011]

REVISED OPINION

CANADY, C.J.

In this case, we consider the application in resentencing proceedings of the constitutional right to a jury determination of facts that are essential to the sentence imposed. We have for review Fleming v. State, 31 Fla. L. Weekly D1112 (Fla. 1st DCA Apr. 21, 2006), in which the First District Court of Appeal certified conflict with Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Following our disposition of Galindez v. State, 955 So. 2d 517 (Fla. 2007), approving the Third District Court of Appeal’s

decision on other grounds, we granted the State’s petition to review this case and resolve the ongoing conflict in the district courts regarding the applicability of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), to resentencing proceedings that became final after Apprendi and Blakely issued, where the conviction and the original sentence were final before they issued. Because resentencing is a de novo proceeding in which the decisional law effective at the time of the resentencing applies, we approve the decision in Fleming holding that Apprendi and Blakely apply to such resentencings conducted after Apprendi and Blakely issued.

I. BACKGROUND

A jury found Fleming guilty as charged of aggravated battery with great bodily harm, permanent disability, or permanent disfigurement (Count I); shooting within a dwelling (Count II); and false imprisonment (Count III). On June 30, 1997, the trial court sentenced Fleming to an upward departure sentence of consecutive ten-year sentences on the first two counts and a consecutive five-year term for the third. The trial court found four departure bases for the sentence: (1) the crime was committed in a heinous, atrocious, or cruel manner; (2) the victim suffered permanent physical injury; (3) the offense was committed to avoid arrest; and (4) the primary offense was scored at level seven or higher, and a prior conviction scored at level eight or higher. The conviction and sentence became

final when affirmed by the district court in 1999. Fleming v. State, 740 So. 2d 531 (Fla. 1st DCA 1999). Apprendi was decided the following year.

Subsequently, the district court reversed the denial of Fleming’s postconviction motion, in which Fleming alleged his sentence was illegal under Heggs v. State, 759 So. 2d 620, 627 (Fla. 2000), and remanded for resentencing. See Fleming v. State, 808 So. 2d 287 (Fla. 1st DCA 2002).1 At Fleming’s 2003 resentencing, the circuit court scored forty points on the scoresheet for severe victim injury and again departed upward from the guidelines range of fifty-five and a half months to ninety-two and a half months upon finding the same four

departure reasons. The court sentenced Fleming to twenty years’ imprisonment: consecutive sentences of ten years for aggravated battery and five years each for shooting in a dwelling and false imprisonment.

A year after Blakely was decided, see 542 U.S. 296, the First District granted Fleming a belated appeal from the 2003 resentencing order. Fleming v. State, 895 So. 2d 538, 539 (Fla. 1st DCA 2005) (“Petitioner has shown that he was not advised of his right to appeal at the time of resentencing, and we therefore grant the petition.”). During the pendency of the belated appeal, Fleming filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2), claiming that his

1. In Heggs, we held the 1995 amendments to the 1994 sentencing guidelines unconstitutional as a result of a single subject violation. 759 So. 2d at 627.

new sentence violated Apprendi and Blakely. The State did not respond to the motion, and the circuit court did not rule on it. Accordingly, on appeal Fleming argued that the forty victim injury points and three of the departure reasons were invalid under Apprendi and Blakely because a judge, not a jury, made these findings. Fleming also contended that the fourth departure reason was invalid on its face because he had no convictions at level eight or higher, an issue the State conceded. Applying its prior decision in Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005), review granted, 4 So. 3d 677 (Fla. 2009), which held that Apprendi applies to resentencings held after Apprendi issued, the First District addressed Fleming’s claims. The district court found no error regarding the trial court’s scoring of forty points for victim injury after determining they were supported by the jury’s verdict. Fleming, 31 Fla. L. Weekly at 1112.2 The First District, however, determined—and the State conceded—that under Isaac the trial court’s

2. The court reasoned as follows:

Although the jury must make a finding of severe victim injury

pursuant to Apprendi, in this case severe victim injury was found by the jury when it convicted appellant of aggravated battery by causing great bodily harm, permanent disability, or permanent disfigurement. Cf. Arrowood v. State, 843 So. 2d 940, 941 (Fla. 1st DCA 2003)

(stating, “[t]he jury’s findings of DUI manslaughter and DUI serious bodily injuries support the imposition of the death and severe victim injury points”). Accordingly, the trial court’s assessment of 40 points for severe victim injury was not error in this case.

Fleming, 31 Fla. L. Weekly at 1112 (footnote omitted).

finding of the other three upward departure grounds did violate Apprendi and

Blakely. Accordingly, the court reversed and remanded for resentencing. Id.

The First District subsequently granted the State’s motion to certify conflict and stay the mandate in the case. By order, the district court certified conflict with the Third District’s Galindez decision and two decisions from the Fourth District to the extent they “suggest that Blakely and Apprendi do not apply to resentencing proceedings.” The State then petitioned this Court for review. We postponed our decision on jurisdiction and stayed the case pending our decision in Galindez, 955 So. 2d 517, which presented the conflict issue but which we ultimately decided on harmless error grounds. Finally, we granted the State’s request to review this case and resolve the extant conflict.

II. ANALYSIS

The question we address here is whether—in cases in which the convictions were final before Apprendi issued—Apprendi and Blakely apply to resentencing proceedings held after Apprendi issued where the resentencing was not final when Blakely issued. As stated above, the First District has held that Apprendi and Blakely do apply in such resentencing proceedings. As explained below, however, the other four district courts of appeal disagree, reasoning that this would constitute

an improper retroactive application of these United States Supreme Court decisions.3

To provide context for our analysis, we begin by (A) outlining the holdings of Apprendi and Blakely and the determinations regarding their retroactive application to final cases. Next, we (B) explain the conflict in the district courts regarding their applicability in resentencings. Finally, we (C) resolve the conflict and hold that because resentencing proceedings are de novo in nature, Apprendi and Blakely necessarily apply to resentencings held after Apprendi and Blakely issued, even where the conviction was final before they issued.

A. Apprendi and Blakely and Retroactivity to Final Cases

In its decisions in Apprendi and Blakely, the United States Supreme Court altered the rules of procedure regarding fact-finding in criminal sentencing based on the Court’s interpretation of the requirements of the Sixth Amendment right to trial by jury and the Due Process Clause of the Fourteenth Amendment.

3. In its initial brief, the State sought review of the conflict issue but also argued that the Court need not address it. The State contended that Fleming’s rule 3.800(b) motion could not preserve the Apprendi/Blakely issue for review in the district court. The State, however, did not preserve this argument in the district court, and as Fleming points out, the district courts have held that such claims are properly preserved by such a motion and no cases hold to the contrary. See Arrowood v. State, 843 So. 2d 940, 941 (Fla. 1st DCA 2003) (“[The defendant] properly filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) to raise his Apprendi claim.”). To the extent the State argues that our decision in Jackson v. State, 983 So. 2d 562 (Fla. 2008), controls this issue, we note that Jackson does not directly address or even mention Apprendi error.

As part of a plea agreement, Apprendi pleaded guilty to, among others, a second-degree firearms offense for which the statutory maximum sentence was ten years. Apprendi, 530 U.S. at 468. Under the state’s “hate crime” statute, however, the trial court could impose a sentence of up to twenty years for the crime upon making an additional finding by a preponderance of the evidence. Id. at 468-69. After an evidentiary hearing, the trial court found that Apprendi’s crime was motivated by racial bias and imposed an enhanced sentence of twelve years. Id. at 469-71. The question before the Supreme Court was “whether Apprendi had a constitutional right to have a jury find [the sentencing factor of] bias on the basis of proof beyond a reasonable doubt.” Id. at 475-76. After reviewing the history of criminal sentencing, the Supreme Court stated that “nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute” and that “judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.” Id. at 481. In contrast, the New Jersey sentencing scheme provided the trial court with the power to find additional facts and impose a sentence beyond the prescribed penalty for that crime. Accordingly, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.

In light of the holding in Apprendi, Florida courts determined that trial courts were still empowered to find additional facts in imposing lengthier sentences, but they were limited by the maximum punishment provided by the statute for the specific crime. See Hall v. State, 823 So. 2d 757, 764 (Fla. 2002) (“Because the sentence for each of Hall’s offenses did not exceed the statutory maximum, we conclude that Apprendi is inapplicable.”); Isaac v. State, 826 So. 2d 396 (Fla. 1st DCA 2002) (“The rule of [Apprendi] . . . does not apply when the sentence does not exceed the statutory maximum permitted by section 775.082, Florida Statutes.”).

Four years after Apprendi, the Supreme Court in Blakely addressed the application of the principles of Apprendi to guidelines sentencing schemes. In Blakely, the defendant entered a guilty plea, “admitting the elements of second-degree kidnaping and the domestic-violence and firearm allegations, but no other relevant facts.” Blakely, 542 U.S. at 299. Under a Washington statute, the kidnapping charge was a second-degree felony punishable by a term not exceeding ten years, but another statute provided a “standard range” sentence for second-degree kidnapping with a firearm of forty-nine to fifty-three months. Id. A judge, however, could impose a departure sentence exceeding the standard range up to the

statutory maximum for the crime based on one or more aggravating factors. Upon finding that Blakely committed the crime with “deliberate cruelty,” the trial court imposed a sentence of ninety months, which exceeded the standard range by more than three years. Id. at 300. The Supreme Court rejected the state’s argument that Blakely’s sentence fell within the statutory maximum of ten years, determining that the sentence “could not have [been] imposed . . . solely on the basis of the

facts admitted in the guilty plea.” Id. at 304. Accordingly, the Supreme Court held as follows:

Our precedents make clear, however, that the “statutory maximum”

for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.

Id. at 303-04 (citations omitted).

When the Supreme Court announces “a new rule for the conduct of criminal prosecutions,” the rule must be applied to “all cases, state or federal, pending on direct review or not yet final.” Griffith v. Kentucky, 479 U.S. 314, 328 (1986). Similarly, when this Court “announce[es] a new rule of law, or merely appl[ies] an established rule of law to a new or different factual situation,” the decision applies “in every [Florida] case pending on direct review or not yet final.” Smith v. State,

598 So. 2d 1063, 1066 (Fla. 1992); see Wuornos v. State, 644 So. 2d 1000, 1007 n.4 (Fla. 1994) (“We read Smith to mean that new points of law established by this Court shall be deemed retrospective with respect to all non-final cases unless this Court says otherwise.”).

To determine whether a new rule applies retroactively to final cases in postconviction proceedings, however, courts in Florida conduct a retroactivity analysis under Witt v. State, 387 So. 2d 922 (Fla. 1980). In Hughes v. State, 901 So. 2d 837, 838 (Fla. 2005), we analyzed Apprendi under the Witt factors and concluded that the new Apprendi rule of procedure did not apply retroactively to cases that were final when it issued. At the same time, we determined in Johnson v. State, 904 So. 2d 400, 405 (Fla. 2005), that the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), which applied the reasoning of Apprendi to death penalty cases, also did not apply retroactively to death-sentenced defendants “whose convictions already were final when that decision was rendered.”4 We have not directly addressed Blakely’s retroactive application to final cases. See Galindez, 955 So. 2d at 524 (Cantero, J., specially concurring) (“We already have held that Apprendi does not apply retroactively. Presumably, neither does its offspring, Blakely.” (citation omitted)). Florida’s district courts of appeal,

4. The United States Supreme Court previously had determined under a different analysis that Ring does not apply retroactively under federal law. See Schriro v. Summerlin, 542 U.S. 348, 358 (2004). The Supreme Court has not addressed the question of Blakely’s retroactive applicability.

however, have concluded that Blakely, like Apprendi, does not apply retroactively to cases that were final before it issued. See, e.g., Thompson v. State, 949 So. 2d 1169, 1173 (Fla. 1st DCA 2007) (“Florida courts, including this one, have generally agreed that Blakely has no application to cases that were already final when Blakely was handed down.”), quashed on other grounds, 990 So. 2d 482, 482 (Fla. 2008); Thomas v. State, 914 So. 2d 27, 28 (Fla. 4th DCA 2005) (concluding on the basis of Hughes that Blakely does not apply retroactively).

B. Conflict in the District Courts

Despite their agreement regarding the nonretroactivity of Apprendi and Blakely, the district courts differ regarding the applicability of Apprendi and Blakely in certain resentencing proceedings. As explained below, the First District alone has held that Blakely and Apprendi apply to resentencings held after those decisions issued where the conviction was final before they issued.

In this case, Fleming’s conviction was final in 1997, as was his sentence. Fleming’s sentence, however, did not remain so; he was successful in obtaining postconviction relief from his sentence. He was resentenced in 2003, and that new sentence was not final when Apprendi and Blakely were decided. The First District held that Apprendi and Blakely applied to Fleming’s resentencing under its prior decision in Isaac, 911 So. 2d at 815, and reversed and remanded for

resentencing. Fleming, 31 Fla. L. Weekly at 1112.5 In Isaac, the majority specifically acknowledged that “Apprendi is not retroactive” but did not find this relevant. Isaac, 911 So. 2d at 814. Without elaboration, the First District held that “the trial court was bound” by Apprendi because Apprendi was decided before Isaac’s resentencing. Id. The First District applied this same reasoning in Fleming’s case and others. See McGriff v. State, 32 Fla. L. Weekly D520, D521 (Fla. 1st DCA Feb. 21, 2007) (“Because Apprendi and Blakely were decided prior to Appellant’s resentencing becoming final, Apprendi and Blakely apply to Appellant’s case.”), review granted, 4 So. 3d 677 (Fla. 2009).

The First District in Isaac certified conflict with the Third District’s decision in Galindez, in which—as in Fleming—the defendant’s conviction was final before Apprendi issued, but he was resentenced afterwards, and Blakely issued during the pendency of his resentencing appeal. Galindez, 910 So. 2d at 284-85. The Third

District held that Apprendi and Blakely did not apply to Galindez’s resentencing because this constituted their retroactive application to a conviction that was final before those decisions issued. Galindez, 910 So. 2d at 285. In so holding, the Third District adopted the reasoning of the dissent in Isaac: “[A]s clearly and correctly stated by Judge Kahn in Isaac v. State, Apprendi and Blakely, which have

5. As stated previously, the State conceded in Fleming’s appeal that under Isaac, Apprendi, and Blakely, error occurred in Fleming’s sentence.

no retroactive application, cannot be applied to alter the effect of a jury verdict and conviction . . . rendered prior to those decisions, notwithstanding that further resentencing proceedings are pending afterwards.” Galindez, 910 So. 2d at 285 (citations omitted). Citing our decision in Hughes, Judge Kahn in Isaac had concluded that the finality of a conviction pre-Apprendi is determinative of Apprendi’s applicability in a case and that resentencing was of no consequence to the issue:

[E]ven though appellant was resentenced in June 2001, Apprendi does not apply because his conviction became final in 1998. Apprendi, of course, involves a right under the Sixth and Fourteenth Amendments of the United States Constitution for state criminal defendants to have certain facts determined by a jury beyond a reasonable doubt, rather than by a judge. As the Hughes retroactivity analysis instructs, the rule of Apprendi is not “of sufficient magnitude as to require retroactive application.” 901 So. 2d at 840. Here, because Isaac’s jury was obviously discharged after the original criminal trial on January 15, 1997, the factual matters underlying the guidelines departure sentences may not be submitted to a jury. Accordingly, Hughes’ focus on finality of the conviction is very important, and I would follow that rule until it is altered. Because these convictions

were final long before announcement of the Apprendi rule, I would let the twenty-year sentences stand.

Isaac, 911 So. 2d at 816 (Kahn, J., dissenting).6 The Second, Fourth, and Fifth Districts agreed with the Third District and Judge Kahn’s dissent that Apprendi and Blakely do not apply to convictions final before the Supreme Court decisions

6. When Isaac was resentenced in 2001, the trial court again imposed four concurrent twenty-year sentences, but it was an upward departure sentence rather than a guidelines sentence. Isaac, 911 So. 2d at 814-15.

issued and thus do not apply to any subsequent resentencings in such cases. See Cutts v. State, 940 So. 2d 1246, 1247 (Fla. 2d DCA 2006), quashed on other grounds, 976 So. 2d 579 (Fla. 2008); Lester v. State, 923 So. 2d 596, 597 (Fla. 5th DCA 2006), quashed on other grounds, 976 So. 2d 577, 577 (Fla. 2008); Hamilton v. State, 914 So. 2d 993, 994 (Fla. 4th DCA 2005), quashed on other grounds, 976 So. 2d 575, 576 (Fla. 2008).

C. Resolving the Conflict

In holding that Apprendi and Blakely apply to resentencings regardless of the finality of the defendant’s conviction before they issued, the First District implicitly followed longstanding precedent of this Court regarding the nature of resentencing. As we explain below, two principles support our holding that these two United States Supreme Court cases apply to all resentencing proceedings held after they issued: (1) resentencing proceedings are de novo; and (2) the decisional law in effect before an appeal is final applies to the proceeding. Further, our holding in no way contravenes our prior decision in Hughes, holding that Apprendi does not apply retroactively as a basis for relief in postconviction proceedings.

First, this Court has long held that where a sentence has been reversed or vacated, the resentencings in all criminal proceedings, including death penalty cases, are de novo in nature. See Morton v. State, 789 So. 2d 324, 334 (Fla. 2001). (reasoning that in a new penalty phase “resentencing should proceed de novo on all

issues bearing on the proper sentence” (quoting Teffeteller v. State, 495 So. 2d 744, 745 (Fla. 1986))); see also Preston v. State, 607 So. 2d 404, 408 (Fla. 1992) (referring to new penalty phase proceeding as a “clean slate” and stating that “a resentencing is a completely new proceeding”). This means that when a defendant is resentenced, “the full panoply of due process considerations attach.” State v. Scott, 439 So. 2d 219, 220 (Fla. 1983) (“[O]nce the court has determined that the sentence was indeed illegal and the prisoner is entitled to a modification of the original sentence or the imposition of a new sentence, the full panoply of due process considerations attach.”); see Trotter v. State, 825 So. 2d 362, 368 (Fla. 2002) (“We agree with the district courts of appeal that a resentencing pursuant to Heggs is a de novo sentencing proceeding that must comport with constitutional requirements.”).

Because the resentencing is de novo, we have held that both parties may present new evidence bearing on the sentence. For example, in State v. Collins, 985 So. 2d 985, 994 (Fla. 2008), we held “that when a habitual offender sentence is reversed because of insufficient evidence, on remand for resentencing the State may again attempt to prove that the defendant meets the criteria for such sentencing.” See Mann v. State, 453 So. 2d 784, 786 (Fla. 1984) (rejecting appellant’s argument that the state was not permitted to present new evidence at his resentencing and stating that “[o]ur remand directed a new sentencing proceeding,

not just a reweighing” at which “both sides may, if they choose, present additional evidence”); see also Rich v. State, 814 So. 2d 1207, 1208 (Fla. 4th DCA 2002) (holding that at resentencing, the State must present evidence on an enhanced sentencing factor despite having done so at the prior sentencing hearing).

The trial court has discretion at resentencing—within certain constitutional confines—to impose sentence using available factors not previously considered. See Scott, 439 So. 2d at 221 (“Nor has the plight of the trial court seeking to impose a new sentence been an easy one, fraught as it is with constitutional challenges and considerations of post-sentencing infractions which would allow a material increase in the sentence, pursuant to North Carolina v. Pearce, 395 U.S. 711 (1969).”). In Trotter, the defendant’s original 83.2-month guidelines sentence was illegal under our decision in Heggs. We held that, “[i]n an attempt to reach what the trial court originally considered to be an appropriate sentence,” the trial judge at resentencing had discretion to apply a drug trafficking multiplier not employed at the prior sentencing to impose a sentence of seventy-two months. Trotter, 825 So. 2d at 367-68. Similarly, in Roberts v. State, 547 So. 2d 129, 130 (Fla. 1989), the original trial judge imposed the maximum guidelines sentence of concurrent terms of twenty-seven years using an improperly calculated scoresheet. At resentencing, the new trial court imposed the same sentence by departing upward from the guidelines maximum of twenty-two years under the new

scoresheet. We approved, holding “that it is proper for the judge to reconsider whether a departure from the guidelines is appropriate when the corrected guidelines scoresheet is before him on remand.” Roberts, 547 So. 2d at 131; see Roberts v. State, 644 So. 2d 81, 81-82 (Fla. 1994) (holding that at resentencing on violation of probation, trial court may revise guidelines scoresheet to reflect prior convictions “mistakenly omitted from the original through no fault of the defendant”).7

We have already referred to the attendant principle underpinning our decision here—that the decisional law in effect before an appeal is final applies in that proceeding. When the United States Supreme Court announces a new rule applicable to criminal proceedings, the rule applies to all federal and state cases pending on direct appeal or not yet final, Griffith, 479 U.S. at 328, and any decision from this Court applies to all of this state’s cases pending review or nonfinal cases, Smith, 598 So. 2d at 1066. Thus, because resentencing is de novo, the decisional law in effect at the time of the resentencing or before any direct

7. Our holding in Shull v. Dugger, 515 So. 2d 748, 750 (1987), “that a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court,” merely “preclude[d] the possibility of a judge providing an after-the-fact justification for a previously imposed departure sentence,” Jones v. State, 559 So. 2d 204, 206 (Fla. 1990). This rather singular, prophylactic exception did not, as the State argues, tacitly negate this Court’s numerous and longstanding precedents regarding the de novo nature of resentencing.

appeal from the proceeding is final applies. See Wheeler v. State, 344 So. 2d 244, 245 (Fla. 1977) (“The decisional law in effect at the time an appeal is decided governs the issues raised on appeal, even where there has been a change of law since the time of trial.”); cf. Harris v. State, 645 So. 2d 386, 388 (Fla. 1984) (stating where State cross-appealed sentence because trial court determined as matter of law that no habitual offender sentence could be imposed, such a sentence could be imposed at resentencing because a decision issued during pendency of the appeal clarified the issue).

Moreover, this Court has applied these two principles in a context on all fours with the question presented here. In Parker v. State, 476 So. 2d 134, 140 (Fla. 1985), we affirmed a death-sentenced defendant’s conviction and sentence. In 1998, however, we affirmed the trial court’s grant of Parker’s postconviction request for a new penalty phase. Parker v. State, 721 So. 2d 1147, 1152 (Fla.

1998). At the conclusion of the new penalty phase, the trial court followed the jury recommendation and sentenced Parker to death. State v. Parker, 873 So. 2d 270, 276 (Fla. 2004). Before the new penalty phase was held, however, Parker filed a motion in the circuit court to suppress one of his statements made to police in

1982, relying on the United States Supreme Court’s later decision in Michigan v.

Jackson, 475 U.S. 625 (1986). Parker, 873 So. 2d at 277, 279.8 The trial court denied the motion, and Parker raised this issue on appeal. The State argued that this Court need not address the merits of Parker’s suppression issue for two reasons: (1) Jackson did not apply since it was decided after his original trial was held and his conviction was final; and (2) this Court had held in Henderson v. Dugger, 522 So. 2d 835, 837 (Fla. 1988), that Jackson did not apply retroactively. Parker, 873 So. 2d at 280 n.6. We rejected both arguments: “[A]s previously explained, because the new penalty phase was a new proceeding, neither the trial court nor this Court is precluded from applying case law rendered after the original sentencing.” Parker, 873 So. 2d at 280 n.6; see id. at 278 (“Further, it is the law at the time of Parker’s new penalty phase that determines the admissibility of the evidence during that proceeding.”). Accordingly, we affirmed the trial court’s denial of the motion on the merits, not on the basis of any of the State’s claims of procedural bar. See id. at 281.

Just as applying Jackson at Parker’s new penalty phase did not constitute a retroactive application of Jackson, neither does applying Apprendi and Blakely to the resentencing of a defendant such as Fleming constitute their retroactive application. In Hughes, we concluded that “Apprendi does not affect the

8. Jackson held that when police initiate interrogation after a defendant asserts the right to counsel, any waiver of that right for that interrogation is invalid and the resulting statement is inadmissible as substantive evidence against the defendant. 475 U.S. at 636.

determination of guilt or innocence.” 901 So. 2d at 841. Instead, “Apprendi affects only the procedure for enhancing the sentence.” Id. at 843 (some emphasis added). Thus, we made it clear that Apprendi did not affect convictions—only sentences. After applying the factors of Witt, we then determined that Apprendi did not require that we undo sentences final before it issued and hold new sentencing proceedings in order to apply Apprendi. Hughes, 901 So. 2d at 845-46.

In cases such as Fleming’s, the basis for granting postconviction relief to vacate original final sentences was not the violation of Apprendi and Blakely. That would be the retroactive application of those cases to provide postconviction relief. Rather, in Fleming’s case, for example, the district court vacated his pre­Apprendi original final sentence because that sentence was illegal under Heggs.

Fleming, 895 So. 2d at 539. As a result, Fleming had to be and was resentenced in a de novo resentencing proceeding. See Trotter, 825 So. 2d at 368 (“We agree with the district courts of appeal that a resentencing pursuant to Heggs is a de novo sentencing proceeding that must comport with constitutional requirements.”). Apprendi issued before the resentencing was held and was not final when Blakely issued. Accordingly, the constitutional procedural rules for sentencing established in Apprendi and Blakely were current law and applicable to Fleming’s resentencing, just as the United States Supreme Court’s decision in Jackson was current law applicable at the time the defendant in Parker was resentenced?

despite the fact that his conviction was final before Jackson issued and remained final when the new penalty phase was held.

As explained above, (1) when a sentence is vacated, the defendant is resentenced at a new proceeding subject to the full panoply of due process rights, and (2) the decisional law in effect at the time of a de novo resentencing or before that resentencing is final applies to those proceedings and the issues raised on appeal. Consonant with these two principles, we hold that Apprendi and Blakely apply to all de novo resentencings that were not final when Apprendi and Blakely issued regardless of when the conviction or original sentence was final.

III. CONCLUSION

Under the decisions in Apprendi and Blakely, except for the fact of a prior conviction, a judge may impose sentence based solely on the facts reflected in a jury verdict or admitted by the defendant. Regardless of whether a defendant’s conviction and sentence were final before Apprendi and Blakely issued, we hold that where a defendant’s resentencing was not final when Apprendi and Blakely issued, the rules established in these cases apply to that de novo proceeding. Accordingly, we approve the decision of the First District Court of Appeal in this case determining that Apprendi and Blakely apply to Fleming’s resentencing. Because we disallowed briefing on harmless error in this case so that we could resolve the conflict in the district courts, however, we have not conducted such an

analysis. Accordingly, we remand this matter to the First District Court of Appeal for application of a harmless error analysis under our decision in Galindez.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, J., recused.

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

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

First District – Case No. 1D05-3411 (Columbia County)

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Christine Ann Guard, Assistant Attorneys General, Tallahassee, Florida,

for Petitioner

Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida,

for Respondent

 

Courtesy of David Edelstein

Supreme Court of Florida

No. SC09-496

RAY LAMAR JOHNSTON,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

No. SC09-2148

RAY LAMAR JOHNSTON,

Petitioner,

vs.

EDWIN G. BUSS, etc.,

Respondent.

[April 28, 2011]

PER CURIAM.

Ray Lamar Johnston appeals the trial court’s order denying his motion filed under Florida Rule of Criminal Procedure 3.851 to vacate his conviction of first-degree murder and sentence of death. He also petitions this Court for a writ of

habeas corpus.1 For the reasons explained below, we affirm the trial court’s order denying postconviction relief. We also deny the habeas petition.

I. FACTS AND PROCEDURAL HISTORY

Johnston was found guilty of the first-degree murder of Janice Nugent. Johnston v. State, 863 So. 2d 271 (Fla. 2003). The evidence presented at trial revealed that Johnston and Nugent were acquaintances as regular patrons of a bar in Tampa. Id. at 275. A few weeks before the murder, Johnston had been to Nugent’s house after the two had gone on a date. Id. at 275 & n.3. Later, Nugent’s dead body was discovered in her home by her son-in-law. Id. at 274. Her body, clothed only in underwear, was wrapped in a bed comforter and submerged in her bathtub. Id. She had been manually strangled as well as beaten on her buttocks and hips with a blunt instrument. Id. There were multiple deep bruises on Nugent’s neck and shoulders from being throttled, and there were defensive bruises and scratches on Nugent’s arms, hands, and face. Id.

Johnston’s fingerprints were found on a cup in Nugent’s kitchen and on the faucet in Nugent’s bathtub. Id. at 275. Shoe tracks consistent with shoes recovered from Johnston’s apartment were found in Nugent’s kitchen. Id. And a stain matching Johnston’s DNA profile was found on a sheet in Nugent’s bedroom. Id.

1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

In imposing the death sentence, the trial court found two aggravating circumstances, one statutory mitigating circumstance, and numerous nonstatutory mitigating circumstances.2 Id. at 278 & n.5. On appeal, this Court affirmed

2. The two aggravators were (1) Johnston was previously convicted of a felony involving the use or threat of violence to the person, and (2) Nugent’s murder was especially heinous, atrocious, or cruel (HAC). Id. at 278 n.5. The sole statutory mitigator was that Johnston’s capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired. Id. n.6. The trial court considered the following nonstatutory mitigating circumstances:

(1) defendant has a long history of mental illness [slight weight]; (2) defendant suffers from a dissociative disorder [no weight]; (3)

defendant suffers from seizure disorder and blackouts [no weight]; (4) defendant did not plan to commit the offense in advance [not proven; no weight]; (5) defendant’s acts are closer to that of a man-child than that of a hard-blooded killer [not proven; no weight]; (6) defendant is haunted by poor impulse control [no weight]; (7) defendant is capable of strong, loving relationships [slight weight]; (8) defendant excels in a prison environment [slight weight]; (9) defendant could work and contribute while in prison [slight weight]; (10) defendant has extraordinary musical skills [no weight]; (11) defendant obtained additional education while he was in prison [no weight]; (12)

defendant served in the U.S. Air Force and was honorably discharged [slight weight]; (13) defendant received a certificate of recognition from the Secretary of Defense for services rendered [slight weight]; (14) defendant excelled and was recommended for early termination while on parole [slight weight]; (15) defendant was a productive member of society after his release from prison [slight weight]; (16) defendant turned himself in to the police [slight weight]; (17) defendant demonstrated appropriate courtroom behavior during trial [slight weight]; (18) defendant has tried to conform his behavior to

normal time after time [no weight]; (19) defendant has a special bond with children [no weight]; (20) defendant has the support of his mother, brother, and sister [slight weight]; (21) defendant has been a

good son, brother, and uncle [no weight]; (22) defendant has a mother,

Johnston’s conviction and sentence. Id. at 286. Johnston subsequently filed a motion for postconviction relief in the trial court, which the trial court denied. Johnston now appeals the denial of postconviction relief. Johnston has also filed a habeas petition raising several claims.

II. JOHNSTON’S POSTCONVICTION CLAIMS

and (8) the trial court erred in summarily denying several of Johnston’s claims.3 As explained below, Johnston’s claims of trial court error are without merit. Also, because Johnston has failed to prove that his counsel’s performance was deficient or that any alleged deficient performance prejudiced him, we affirm the trial court’s denial of relief. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

A. Testimony of Johnston’s Brother at Penalty Phase

46 So. 3d 535, 545-46 (Fla. 2010). To prove counsel’s performance was deficient, a defendant must ?identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.? Strickland, 466 U.S. at 690. A reviewing court must then, in light of all the circumstances, determine whether ?the identified acts or omissions were outside the wide range of professionally competent assistance.? Id. However, this Court must strongly presume that defense counsel’s actions were reasonable at the time of the counsel’s conduct. Id. at 689. Any such ?strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.? Howell v. State, 877 So. 2d 697, 703 (Fla. 2004) (quoting Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000)).

To establish prejudice, a defendant must demonstrate that because of counsel’s deficient performance, he was deprived of a fair trial with a reliable result. Bradley, 33 So. 3d at 672 (citing Strickland, 466 U.S. at 689). The prejudice requirement is satisfied only if there is a reasonable probability that ?but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.? Strickland, 466 U.S. at 694. Mere speculation that counsel’s error affected the outcome of the proceeding is insufficient. Id. at 693.

And to establish ineffectiveness, both deficient performance and prejudice must be proven. Id. at 694.

The trial court held an evidentiary hearing on this claim and determined that counsel was not ineffective because the strategic decision to offer Allen’s testimony was reasonable. The record shows that calling Allen as a witness was part of the defense strategy to portray Johnston as an individual with an extensive, documented history of mental health disorders. On the stand, Allen testified as an eyewitness to Johnston’s mental problems during youth, including his psychiatric hospitalization and extremely disturbed behavior. Defense counsel explained that Allen’s testimony was intended to give context to the mental health mitigation and to confirm that Johnston showed signs of frontal lobe issues since childhood, received shock therapy, and was overmedicated. The defense trial team had extensively discussed the strategy behind calling Allen as a witness. Further, when asked whether he desired the jury to recommend a life sentence for his brother, Allen stated, ?I don’t think that it’s right for th[e] state to kill him.? For all these reasons, counsel’s strategic decision to call Allen to testify in the penalty phase was not deficient performance, and we affirm the trial court’s denial of relief on this ineffectiveness claim.

B. Presentation of Mental Health Mitigation

Johnston next argues that trial counsel was ineffective for failing to present significant information regarding his mental health issues. At the evidentiary hearing on this issue, Johnston offered the testimony of forensic expert Dr. Mark Cunningham, who testified that counsel did not put mental health mitigation evidence before the jury in sufficient detail. Johnston further argued that counsel diminished the significance of the available mitigation by referring to it as ?stuff.? We disagree.

Counsel may ?rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those evaluations may not have been as complete as others may desire.? Darling v. State, 966 So. 2d 366, 377 (Fla. 2007). This Court has held that counsel will not be rendered ineffective for relying on a mental health expert’s opinion during the penalty phase, even if in hindsight the testimony is

?somehow incomplete or deficient in the opinion of others.? Id.

Here, Johnston’s counsel relied on the testimony of two qualified mental health experts during the penalty phase. The defense presented Dr. Krop, a board-certified neuropsychologist, who testified to Johnston’s long history of behavioral problems, his frontal lobe impairment, organic brain syndrome, and corroborating PET scan results. The defense also presented Dr. Maher, a board-certified forensic psychiatrist, who testified after interviewing Johnston and reviewing the following

information: Johnston’s hospital, jail, and prison medical records; Dr. Krop’s findings and test results; and examination and test results from two other doctors who treated Johnston. Dr. Maher further explained multiple neurodiagnostic test results and testified that Johnston suffered from organic brain injury or frontal lobe damage. Thus, these experts presented thorough analyses for the defense on the issue of mental health mitigation, and counsel’s reliance on their testimony cannot be second-guessed in hindsight. See id. The trial court properly denied Johnston relief on this claim.

C. Admission of Johnston’s Confession to Prior Murder

Johnston raises a claim that is not cognizable and therefore does not merit relief. It is axiomatic that an ineffective assistance of counsel claim must be based on the actions of defense counsel in the trial under review. Here, Johnston is claiming that his defense counsel was deficient under Strickland in a prior, unrelated murder trial. The Coryell and Nugent trials were entirely distinct, separated in time by several months, with different juries, different victims, different prosecutors, and different defense teams. Defense counsel’s allegedly deficient performance at one trial cannot constitute ineffective assistance at another, entirely separate trial. Johnston has not alleged in this claim that any actions taken by defense counsel in the case under review were deficient. Therefore, this ineffective assistance of counsel claim must fail.

D. Admission of Williams5 Rule Evidence of Johnston’s Murder Conviction

At trial, evidence of Johnston’s conviction for the Coryell murder was admitted under the Williams rule. The trial court based its admission of this similar collateral crime on various facts, which it set forth in a ?detailed, written pretrial order on the issue.? Johnston, 863 So. 2d at 281.6 The trial court also

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

As this Court summarized on direct appeal, the similarities between the murders included the following: the physical appearance of the victims; the victims’ relationships and familiarity with Johnston; the presence of multiple blows from a fist to both victims’ upper bodies and heads; pattern bruises on both

emphasized pretrial the importance of medical examiner Dr. Julia Martin’s testimony regarding the similarity of the pattern bruising on the victims’ buttocks to the admission of the Williams rule evidence.

Johnston now argues that the State presented misleading testimony from Dr. Martin in order to obtain admission of the Williams rule evidence. Johnston asserts that Dr. Martin offered false opinions regarding the implement used to beat Ms. Nugent on the buttocks and that this misleading testimony resulted in the prejudicial admission of Johnston’s prior murder conviction. We disagree.

As the trial court correctly concluded, this claim is procedurally barred because it has already been raised and decided on direct appeal. Before trial, the State filed an Additional Notice of Discovery that accurately summarized the content of Dr. Martin’s telephone contact log regarding possible causes of the bruises on Nugent’s buttocks. In response, Johnston filed a motion to reconsider the Williams rule order allowing evidence of Johnston’s prior murder conviction, arguing that the disclosure demonstrated that Dr. Martin no longer believed the pattern bruises were caused by a belt. The trial court considered and denied this argument regarding Dr. Martin’s ?true opinions.?

This Court thoroughly discussed and denied this claim on direct appeal. See Johnston, 863 So. 2d at 280-83. We found no error in the trial court’s admission of

victims’ buttocks; the manner of strangulation causing death; and the method of disposal of the victims’ bodies. Id. at 281-82.

the Williams rule evidence because ?there are unusual and pervasive similarities between the Coryell and Nugent murders? and ?[t]he dissimilarities between the two murders are insubstantial and are partially explained by Johnston’s own confession in the Coryell case.? Id. at 283. Specifically regarding Dr. Martin’s testimony, this Court stated the following:

The similar belt pattern injuries on the buttocks of both victims are possibly the most unique similarities between the Nugent and Coryell murders. Johnston alleges that the State failed to show that these injuries were similar. However, Dr. Martin, the medical examiner in the Nugent case, testified that within a reasonable

medical probability, one or more of the patterned injuries on Nugent’s buttocks came from a belt. Likewise, the medical examiner in the Coryell case testified that Coryell was beaten on the buttocks with a belt. During the penalty phase of the Coryell case, Johnston confessed to beating Coryell’s buttocks with a belt.

Id. at 282. Therefore, because the admission of Williams rule evidence based on Dr. Martin’s testimony has already been challenged and upheld, Johnston’s claim is procedurally barred.

Moreover, Johnston’s claim on this issue is without merit. His contention that the State committed a Giglio7 violation in presenting Dr. Martin’s testimony is unfounded. A Giglio violation occurs when (1) the prosecutor presents or fails to correct false testimony, (2) the prosecutor knows the testimony is false, and (3) the false evidence is material. See Guzman v. State, 941 So. 2d 1045, 1050 (Fla. 2006). Here, there was no Giglio violation because Dr. Martin did not give false

7. Giglio v. United States, 405 U.S. 150 (1972).

testimony. The trial court rejected Johnston’s assertion that Dr. Martin testified with false opinions that were contrary to her true opinions, explaining that Dr. Martin’s testimony at the evidentiary hearing refuted this allegation. Indeed, in her pretrial contact log and at trial, Dr. Martin opined that some of the bruises on Ms. Nugent’s buttocks were consistent with a belt. And at the evidentiary hearing, Dr. Martin testified that she stands by her trial testimony and explained her testimony that the pattern bruises were consistent with a belt. Therefore, as the trial court correctly concluded, Dr. Martin’s testimony was consistent throughout the case, and nothing indicates that the basis for the Williams rule evidence was unfounded. Accordingly, we affirm the trial court’s denial of relief on this claim.

E. Failure to Move to Suppress Johnston’s Stat

challenged the admission of particular statements made to Detectives Noblitt and Stanton on the basis of relevance and did not raise any challenge to the method in which any statements were obtained from him. See Johnston, 863 So. 2d 278-80. Therefore, Johnston is not entitled to relief on his claim that trial court erred in

admitting the statements at issue because that argument has been waived.

Johnston’s additional claim that his guilt phase counsel was ineffective for failing to move to suppress the statements at issue is also without merit.

?[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.? Occhicone, 768 So. 2d at 1048. Here, as counsel explained during the postconviction evidentiary hearing, there was a strategic reason for allowing the introduction of Johnston’s statements regarding his alleged activity in the victim’s house. Because Johnston did not wish to testify at trial, defense counsel wanted an alternative method for getting an explanation before the jury as to why physical evidence placed Johnston inside the victim’s home. As counsel testified, he saw the statements to law enforcement as a strategic means of introducing an explanation for why Johnston’s fingerprints were in the victim’s bathroom, where the victim’s body was found. And as the trial court correctly concluded, counsel’s reasoned strategic decision to utilize Johnston’s exculpatory statements to law enforcement does not constitute deficient

performance. See Strickland, 466 U.S. at 690 (explaining that counsel’s performance is deficient only if ?the identified acts or omissions were outside the wide range of professionally competent assistance?). Therefore, counsel’s decision not to suppress the statements at issue does not constitute ineffective assistance and Johnston is not entitled to relief on this claim.

F. Failure to Inform Jury that Johnston was Medicated During Trial

Johnston next argues that deficient performance occurred during the Coryell trial, when counsel did not instruct the jury that Johnston was on psychotropic medications at the time of his testimony and confession at trial. The Coryell trial was an entirely separate proceeding from the Nugent case under review here, involving a different crime and a different jury. Therefore, Johnston’s allegations of deficient performance are irrelevant to the trial under review, and he is not entitled to relief.

Additionally, the defense’s failure to inform the Nugent guilt phase jury of the various medications that Johnston was taking during the Coryell trial and their side effects was not deficient performance. As the transcript from the evidentiary hearing reflects, Littman had no reason to believe that Johnston was ?out of his

mind on drugs? when he testified in the Coryell trial. Furthermore, because the defense strategically chose to offer Johnston’s confession during the Coryell penalty phase in hopes of obtaining a life sentence, it would be duplicitous for

defense counsel to turn around and attack that confession as unknowing or defective. Therefore, the trial court correctly rejected this claim.

G. Failure to Object to Erroneous Jury Instructions

Johnston next claims he is entitled to relief for counsel’s failure to object to a verbal jury instruction containing a one-word misstatement. We disagree.

Johnston’s claim that counsel was ineffective for failing to challenge to the jury instructions is without merit because Johnston cannot establish prejudice. Even assuming it was deficient for counsel to fail to object, there is no reasonable probability that the jury would have voted instead for a life sentence. Although the verbal instructions given to the jury contained one wrong word, Johnston has not established that the single word could have misled the jury into believing in an incorrect standard for proving the mitigating circumstances. The word was part of

a statement by the judge that ?a mitigating circumstance may not be proved beyond a reasonable doubt. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.? This misstatement was made while the judge read the jury instructions aloud, but the jury was later provided with a correct written copy of the instruction on mitigation, which stated that ?a mitigating circumstance need not be proved beyond a reasonable doubt. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as

established.? Thus, the written instructions, which the jury took into the

deliberation room while reaching a verdict, were completely correct. Therefore, there is no reasonable probability that any error in the verbal instructions could have encouraged the jury to vote for death. Accordingly, there is no reasonable probability that any alleged deficient performance in counsel’s failure to object undermines confidence in the outcome of the penalty phase, and Johnston is not entitled to relief.

H. Trial Court’s Summary Denial of Several Claims

?A hearing is warranted on an ineffective assistance of counsel claim only where a defendant alleges specific facts, not conclusively rebutted by the record, which demonstrate a deficiency in counsel’s performance that prejudiced the defendant.? Pagan v. State, 29 So. 3d 938, 955 (Fla. 2009). Because Johnston presented only bare conclusory allegations on these several issues, he was not entitled to an evidentiary hearing on the claims. Therefore, the lower court did not err in summarily denying these legally insufficient claims, and Johnston is not entitled to relief. See Hannon v. State, 941 So. 2d 1109, 1138 (Fla. 2006).

I. Failure to Challenge the Reliability of Fingerprint Evidence

Johnston next alleges that counsel was ineffective for failing to challenge the reliability of fingerprint evidence introduced at trial. Johnston asserts that counsel should have (1) called an expert witness to testify that fingerprinting is unreliable science and (2) objected to a question posed to the State’s fingerprint expert. We disagree.

Johnston specifically argues that counsel was ineffective for failing to consult and present an expert, namely Dr. Simon Cole, to rebut the State’s forensic fingerprint evidence. The trial court denied this subclaim after reviewing Dr. Cole’s proffered testimony and finding that the testimony would not have been

Ring v. Arizona, 536 U.S. 584 (2002); (2) execution by lethal injection is cruel and unusual punishment; and (3) counsel was ineffective for failing to request a jury instruction and present mitigating evidence regarding Johnston’s parole eligibility, pursuant to Simmons v. South Carolina, 512 U.S. 154 (1994).

admissible. See Owen v. State, 986 So. 2d 534, 546 (Fla. 2008) (?Trial counsel cannot be deemed ineffective for failing to present inadmissible evidence.?). The trial court relied on State v. Armstrong, 920 So. 2d 769, 770 (Fla. 3d DCA 2006), in which the Third District Court of Appeal specifically found inadmissible Dr. Cole’s testimony in an unrelated case.9 As in the Third District’s case, Dr. Cole’s opinion as to the reliability of fingerprint evidence had no connection to the latent fingerprints analyzed in this case and was not based on relevant facts. The trial

9. In Armstrong, 920 So. 2d at 770, the Third District explained that Dr. Cole’s proffered testimony was not probative and was therefore inadmissible:

We quash the order permitting Dr. Cole to testify because his ?informed hypothesis? is irrelevant to any material issue. See Fla. Stat. § 90.702 (an expert’s opinion ?is admissible only if it can be applied to the evidence at trial?); Stano v. State, 473 So. 2d 1282, 1285 (Fla. 1985) (?To be relevant, and, therefore, admissible, evidence must prove or tend to prove a fact in issue.?). While Dr.

Cole has raised a general concern about the use of latent fingerprint identification analysis in courts across the United States, he has not

related that concern to the fingerprint identification made in this case. Dr. Cole concededly has no formal training in latent fingerprint identification analysis; he did not examine the latent fingerprints taken from the crime scene in this case; he does not question the latent fingerprint analysis actually performed in this case; and he has no opinion about the standards or methods used by the fingerprint

examiner in this particular case. Dr. Cole’s testimony will, therefore, be no more than a general critique of the predicate underlying

fingerprinting as a method of identification. His testimony will not be probative as to whether the latent prints lifted from the scene match Armstrong’s fingerprints, that is, his testimony will not be probative of Armstrong’s guilt or innocence. Consequently, his testimony is not admissible.

court was therefore correct in determining that the proffered testimony would have been inadmissible and that counsel was not deficient for failing to present it.

Additionally, the trial court did not err in concluding that counsel’s failure to object to a particular question regarding fingerprint evidence did not constitute ineffective assistance. Johnston claims defense counsel should have objected to a question by the State on redirect on the basis that it addressed lay knowledge not proper for expert testimony. To the contrary, the State’s question clarified information the defense elicited from expert Jones on cross-examination and properly sought expert opinion about the effect of fingerprint overlays on the ability to do a comparison analysis on a given fingerprint—not something that is within common lay knowledge. Therefore, Johnston has not shown that there was any basis for an objection by the defense, and Johnston has not established any probability that the trial court would have sustained such an objection. And because trial counsel cannot be deemed ineffective for failing to raise a meritless challenge, Johnston did not satisfy his burden to demonstrate deficient performance under Strickland. See Heath v. State, 3 So. 3d 1017, 1033 (Fla. 2009). Accordingly, the trial court correctly rejected this claim.

III. JOHNSTON’S HABEAS CLAIMS

Johnston also filed a petition for habeas corpus raising five issues. As explained below, because all of Johnston’s claims are either without merit or procedurally barred, we hold that Johnston is not entitled to relief.

A. Challenge to Death Sentence Based on Johnston’s Mental Status

B. Duplicate Claims

Johnston raises four additional claims in habeas that are procedurally barred because they are mere duplications of issues raised in his instant postconviction motion: (1) ineffective assistance of counsel for failure to object to the verbal jury instructions, (2) ineffective assistance of counsel for failure to challenge the fingerprint evidence, (3) ineffective assistance of counsel for failure to move to suppress Johnston’s statements to law enforcement,10 and (4) trial court error in admitting the Williams rule evidence of the Coryell murder. A habeas petition may not be used to litigate issues that have already been raised in a postconviction motion. See McDonald v. State, 952 So. 2d 484, 498 (Fla. 2006). Therefore, Johnston’s petition for writ of habeas corpus is denied.

IV. CONCLUSION

Based on the foregoing, we affirm the trial court’s order denying Johnston’s rule 3.851 motion, and we deny his habeas petition.

It is so ordered.

10. To the extent that Johnston challenges the admission of his statements to law enforcement directly, rather than as an ineffective assistance of counsel claim, that claim is procedurally barred because Johnston did not raise it on direct appeal. A habeas petition may not be used as a vehicle to address issues that could have been raised on direct appeal. Green v. State, 975 So. 2d 1090, 1115 (Fla. 2008).

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

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

Two Cases:

An Appeal from the Circuit Court in and for Hillsborough County, Rex Martin Barbas, Judge – Case No. CR99-11338

And an Original Proceeding – Habeas Corpus

Bill Jennings, Capital Collateral Regional Counsel, David D. Hendry and James

Lawrence Driscoll, Jr., Assistant CCR Counsel, Middle Region, Tampa, Florida

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Katherine V. Blanco, Assistant Attorney General, Tampa, Florida,

for Appellee/Respondent

 

Courtesy of David Edelstein

Supreme Court of Florida

No. SC09-1027

MARK HENRY, WARDEN, etc.,

Petitioner,

vs.

RUNNER O. SANTANA,

Respondent.

[April 28, 2011]

PERRY, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Santana v. Henry, 12 So. 3d 843 (Fla. 1st DCA 2009). The district court certified that its decision is in direct conflict with the decision of the Third District Court of Appeal in Pope v. State, 898 So. 2d 253 (Fla. 3d DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The issue presented is whether a court may sua sponte dismiss a petition for a writ of habeas corpus, in which a prisoner is seeking immediate release, based upon the petitioner’s failure to allege exhaustion of administrative remedies. As further explained below, we hold that such a petition may not be dismissed on such

grounds where the issue of the petitioner’s failure to exhaust administrative remedies has not been raised by the parties.

FACTS AND PROCEDURAL BACKGROUND

On June 24, 2008, Santana, an inmate, filed a pro se petition for writ of habeas corpus in the circuit court in Jackson County, alleging that he was entitled to immediate release. He filed the petition against Mark Henry, warden of the facility in Jackson County where he was housed. Santana’s claim concerned the sentences that were imposed on October 4, 2007, following his violation of probation (VOP). The relevant facts are set forth in the district court opinion below:

Runner O. Santana appeals the dismissal of his petition for writ of habeas corpus alleging “that he is entitled to immediate release when properly credited with time served” and requesting “issuance of

an Order com[m]anding the Florida Department of Corrections . . . to immediately release” him. Without prior notice to the parties or input from them, the trial court summarily dismissed the petition. It reasoned, in part, that Mr. Santana failed to exhaust administrative remedies, although the Department of Corrections (DOC) never raised this below. . . .

The petition below alleges that, after his probation (in three separate cases) was revoked, Mr. Santana was sentenced anew on

October 4, 2007, receiving three concurrent prison sentences. In case No. 95-CF-4926, the petition alleges, he was sentenced to six years in prison with credit for 2,023 days, to be followed by two years’ probation; in case No. 96-CF-9601 to 60.75 months with credit for 831 days; and in case No. 96-CF-10668 to six years with credit for

1682 days. In addition, against each sentence, the petition alleges, he was awarded “credit for time served at the State Hospital,” and a separate credit for 142 days for time spent in jail before the revocation hearing. . . .

Attached to the petition are the sentencing documents, as well as a transcript of the sentencing hearing.

Santana v. Henry, 12 So. 3d 843, 844-45 (Fla. 1st DCA 2009) (footnotes omitted). The district court framed the issue before it narrowly, as follows:

At issue is whether the habeas court properly dismissed the petition on its own motion without hearing from the authorities

alleged to hold the petitioner unlawfully. We are not concerned here with mere conditions of confinement, or gain-time calculations not affecting DOC’s current right to hold the petitioner, or anything less

than a state prisoner’s alleged right to immediate release from custody.

Id. at 845-46 (citations omitted). The district court then addressed the traditional role of the writ of habeas corpus versus the role of the doctrine of exhaustion of administrative remedies and held that the trial court erred in dismissing Santana’s habeas petition on the basis of a technicality not raised by the parties—i.e., Santana’s failure to allege that he had exhausted his administrative remedies:

In any event, we hold the trial court erred by dismissing Mr. Santana’s petition for writ of habeas corpus on the basis of a

technicality—an assumed pleading defect—that was not raised by the parties. It is not clear DOC would have defended in this fashion, left to its own devices. “A trial judge may not sua sponte dismiss an

action based on affirmative defenses not raised by proper pleadings.” Liton Lighting v. Platinum Television Group, Inc., 2 So. 3d 366, 367 (Fla. 4th DCA 2008).

Santana, 12 So. 3d at 847-48 (citations omitted). The district court ruled as follows:

Mindful that the “writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action,” Harris v. Nelson, 394 U.S. 286, 290-91 (1969), we reverse

and remand with directions that the trial court issue an order to show cause to the Department of Corrections before proceeding further.

Santana, 12 So. 3d at 844-45 (citations omitted). The district court certified conflict with Pope v. State, 898 So. 2d 253 (Fla. 3d DCA 2005).1 DOC sought review in this Court, which was granted.

ANALYSIS

The writ of habeas corpus, or the Great Writ, is a high prerogative writ and, when properly issued, supersedes all other writs. State ex rel. Perky v. Browne, 142 So. 247, 248 (Fla. 1932). The writ, which literally means “that you have the

1. In Pope v. State, 898 So. 2d 253 (Fla. 3d DCA 2005), the Third District Court of Appeal held as follows:

Anthony Evans Pope appeals the denial of his Emergency

Petition for Writ of Habeas Corpus Ad Testificandum. The petition alleges that the appellant is being illegally detained by the Department of Corrections beyond his maximum release date.

When Appellant filed his petition with the trial court, he failed to allege, or prove, that he had exhausted any of the administrative procedures available to him prior to filing the petition. The

prerequisite to the issuance of an extraordinary writ is exhaustion of all administrative remedies. The trial court, without addressing the merits, summarily and correctly denied the appellant’s petition,

without prejudice, finding the petition facially insufficient for failing to allege the appellant had exhausted all of the administrative remedies.

. . . .

Based on the above, we affirm the trial court’s decision, without prejudice to Pope’s right to file a new petition, upon the exhaustion of all administrative remedies available to him.

Id. at 253-54 (citation omitted).

body,” is a writ of inquiry and has traditionally been used to compel the custodian of the prisoner to bring the body of the prisoner into court so that the legality of the detention might be tested. This Court in State ex rel. Deeb v. Fabisinski, 152 So. 207 (Fla. 1933), addressed the deep roots of the writ in Anglo-American jurisprudence:

The great writ, known commonly by the name of “habeas corpus,” was a high prerogative writ known to the common law, the object of which was the liberation of those who were imprisoned without sufficient cause. See Ex parte Watkins, 3 Pet. (U. S.) 193, 7 L. Ed. 650.

It is a writ of inquiry upon matters of which the state itself is

concerned in aid of right and liberty. State ex rel. Lasserre v. Michel, 105 La. 741, text 747, 30 So. 122, 54 L. R. A. 927; Ex parte Coupland, 26 Tex. 386.

The name of the writ is “habeas corpus ad subjiciendum et recipiendum.” It is not an action or suit, but is a summary remedy open to the person detained. It is civil rather than criminal in nature

and is a legal and not equitable remedy. See Ex parte Watkins, supra; Ex parte Bollman, 4 Cranch (U. S.) 75, 2 L. Ed. 554.

. . . [W]hile the writ had been in use in England from remote

antiquity, it was often assailed by kings who sought tyrannical power and the benefits of the writ were in a great degree eluded by time­serving judges who assumed a discretionary power in awarding or refusing it and were disposed to support royal and ministerial usurpations. Owing to such abuses, the writ became powerless to release persons imprisoned without any cause assigned. In the fight by the people against the abuses of the writ, petitions of rights were submitted to the king, and during the reign of Charles I, A. D. 1641, provisions were enacted intended to make the writ effectual. These activities were, however, in vain. At last, in 1679, the Statute 31 Chas. II, chap. 2, was enacted. That act is known as the [H]abeas

[C]orpus [A]ct. That act has been substantially incorporated into the jurisprudence of every state in the Union and the right to it secured by their Constitutions. The Constitution of the United States provides

that the privilege of the writ of habeas corpus shall not be suspended except in certain circumstances. Article 1, § 9, par. 2, U. S. Const.

. . . .

The great writ of habeas corpus is the one mentioned in Magna Charta in the year 1215; the writ which alone was the subject of the acts of 16 Chas. I and 31 Chas. II. It was the writ referred to in the

Declaration of Independence and secured to the people of this country by the Constitution of the United States and the Constitutions of the different states.

Fabisinski, 152 So. at 209-10.2 This Court subsequently in Allison v. Baker, 11 So. 2d 578 (Fla. 1943), reiterated the basic purpose of the writ:

The writ of habeas corpus is a high prerogative writ of ancient origin designed to obtain immediate relief from unlawful

imprisonment without sufficient legal reasons. Essentially, it is a writ of inquiry and is issued to test the reasons or grounds of restraint and detention. The writ is venerated by all free and liberty loving people and recognized as a fundamental guaranty and protection of their right of liberty.

Id. at 579.3

See also Jamason v. State, 447 So. 2d 892, 894 (Fla. 4th DCA 1983) (“The great writ has its origins in antiquity and its parameters have been shaped by suffering and deprivation. It is more than a privilege with which free men are endowed by constitutional mandate; it is a writ of ancient right.”), approved, 455 So. 2d 380 (Fla. 1984).

See also Crane v. Hayes, 253 So. 2d 435, 439 (Fla. 1971) (“As a general rule, a habeas corpus proceeding is an independent action, legal and civil in nature, designed to secure prompt determination as to the legality of restraint in some form.); Sneed v. Mayo, 69 So. 2d 653, 654 (Fla. 1954) (“The purpose of a habeas corpus proceeding is to inquire into the legality of the petitioner’s present detention.”); Sylvester v. Tindall, 18 So. 2d 892, 894 (Fla. 1944) (“The general rule is that the object of the writ of habeas corpus is not to determine whether a person has committed a crime, or the justice or injustice of his detention on the

Given the basic purpose and fundamental importance of the writ, this Court has long recognized the necessity of informality and tolerance with regard to the pleading requirements for the writ:

The writ of habeas corpus is a writ of right. It is sometimes issued upon very informal application. Ex parte Pells, 28 Fla. 67, 9 So. 833. Neither the right to the writ nor the right to be discharged from custody in a proper case is made to depend upon meticulous observance of the rules of pleading. The purpose of bringing the petitioner before the court is to inquire into the legality of his detention, and if during the proceedings it appears formally or informally to the court’s satisfaction that the person is unlawfully deprived of his liberty and is illegally detained in custody against his will he will be discharged.

Ex parte Amos, 112 So. 289, 291-92 (Fla. 1927). This Court has emphasized this need for informality repeatedly:

[H]istorically, habeas corpus is a high prerogative writ. It is as old as the common law itself and is an integral part of our own democratic

process. The procedure for the granting of this particular writ is not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other processes. If it appears to a

court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint.

merits, but to determine whether he is legally imprisoned or restrained of his liberty.”).

Anglin v. Mayo, 88 So. 2d 918, 919-20 (Fla. 1956). This Court has gone so far as to rule that “[n]o formal application for habeas corpus is required.” Martin v. State, 166 So. 467, 467 (Fla. 1936).

The gravamen of the issue before the Court is whether the writ of habeas corpus should be encumbered by a pleading requirement regarding the exhaustion of administrative remedies in those cases where an inmate is seeking immediate release. DOC contends that unless the inmate first exhausts administrative remedies, he or she will be unable to file an informed petition because the petition will be based on mere speculation concerning the inmate’s term of imprisonment and release date. DOC also contends that if the inmate fails to exhaust administrative remedies, the courts too will be operating in the dark in the same respect. DOC contends that the district court’s ruling below will encourage inmates to file free habeas petitions instead of utilizing the Department’s internal grievance procedure. In brief, it appears that DOC, for its own purposes, would prefer to respond to such inmate inquiries via its own internal grievance procedure rather than respond to orders to show cause issued by the courts. In light of the above authorities, however, it appears that DOC’s proposed pleading requirement is antithetical to the basic purpose and fundamental importance of the writ.

In the decision under review, the district court addressed at length the traditional role of the writ of habeas corpus in relation to the doctrine of exhaustion of remedies:

“The writ of habeas corpus is a high prerogative writ of ancient origin designed to obtain immediate relief from unlawful

imprisonment without sufficient legal reasons. Essentially, it is a writ of inquiry and is issued to test the reasons or grounds of restraint and detention. The writ is venerated by all free and liberty loving people

and recognized as a fundamental guaranty and protection of their right of liberty.” Allison v. Baker, 11 So. 2d 578, 579 (1943). “The great writ has its origins in antiquity and its parameters have been shaped by suffering and deprivation. It is more than a privilege with which

free men are endowed by constitutional mandate; it is a writ of ancient right.” Jamason v. State, 447 So. 2d 892, 894 (Fla. 4th DCA 1983).

“[H]istorically, habeas corpus is a high prerogative writ. It is as old as the common law itself and is an integral part of our own democratic process.” Anglin v. Mayo, 88 So. 2d 918, 919 (Fla.1956).

By comparison, judicial abstention in favor of exhaustion of

administrative remedies is a relatively recent invention. The doctrine of exhaustion of remedies counsels against judicial intervention in the decision-making function of the executive branch in certain circumstances. Whether to require exhaustion of administrative remedies is a question of judicial “policy rather than power.” Gulf

Pines Mem’l Park, Inc. v. Oaklawn Mem’l Park, Inc., 361 So. 2d 695, 699 (Fla. 1978). See also State, Dep’t of Revenue v. Brock, 576 So. 2d 848, 850 (Fla. 1st DCA 1991) (“[T]he doctrine requiring the exhaustion of administrative remedies is not jurisdictional. The exhaustion requirement is a court-created prudential doctrine; it is a matter of policy, not of power.” (citations omitted)).

Notions of administrative autonomy have been thought to require that agencies be given the opportunity to discover and correct their own errors, even after a case has reached the courts for judicial review of agency action. In some contexts, judicial restraint may be

necessary “to support the integrity of the administrative process and to allow the executive branch to carry out its responsibilities as a co?

equal branch of government.” [Key Haven Associated Enters., Inc. v. Bd. of Trs. of the Internal Improvement Trust Fund, 427 So. 2d 153,

157 (Fla. 1982)]. When an agency has discretion to exercise, it should

of course be allowed to make discretionary decisions. If a party succeeds in vindicating its rights in the administrative process, thus

obviating the need for judicial intervention, judicial resources are conserved; and immediate judicial access can weaken the

effectiveness of an agency by encouraging people to ignore its procedures.

But the rationales for requiring exhaustion of administrative remedies diminish and disappear where an executive branch agency has little or no discretion to exercise and little or no expertise to bring

to bear. The Department of Corrections does have discretion in deciding, for example, the conditions of confinement, and does have its own procedures on this subject deserving of judicial deference. On the other hand, the DOC has no discretion about which prisoners to release upon expiration of their sentences. Sentencing is a power, obligation, and prerogative of the courts, not the DOC.

. . . .

. . . While the general rule is that exhaustion of administrative remedies is an affirmative defense, see Sylvia H. Walbolt, Matthew J. Conigliaro & J. Andrew Meyer, Florida Civil Practice Before Trial, § 25.34 at 25-30 (7th ed. 2004) (“Affirmative defenses to extraordinary

writs include impossibility or lack of power to perform, laches, unclean hands, absence of parties whose substantial rights would be affected, illegality of purpose, detriment to the public interest, mootness, and failure to exhaust administrative remedies. See FLORIDA APPELLATE PRACTICE § 20.38 (Fla. Bar CLE 5th ed.2003)”), moreover, in the prisoner habeas context, it has been held that certain petitions must allege exhaustion of administrative remedies in order to be facially sufficient. But none of the cases to which our attention has been drawn has laid down such a pleading requirement for petitions for writ of habeas corpus alleging entitlement to immediate release. The petitioners in [the other cases] sought relief from conditions of confinement or restoration of forfeited gain time, not immediate release from the DOC’s custody.

Santana, 12 So. 3d at 846-47 (citations omitted).

The district court held that the trial court erred in dismissing Santana’s habeas petition based on a technicality not raised by the parties, and the court then noted the following:

The general rule that pleadings ought not be dismissed on grounds no party urges has special force when the pleading is a petition for writ of habeas corpus. “The scope and flexibility of the

writ—its capacity to reach all manner of illegal detention—its ability to cut through barriers of form and procedural mazes—have always been emphasized and jealously guarded by courts and lawmakers.

The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291 (1969). When a petition for writ of habeas corpus alleging that the petitioner is entitled to immediate release sets out plausible reasons and a specific factual basis in some detail, the custodian should be required to respond to the petition.

Santana, 12 So. 3d at 848 (citations omitted).

The district court added as a postscript the following passage explaining its ruling further:

If in this case the petition had not been summarily denied and the trial court had instead ordered the DOG to show cause why Mr.

Santana’s petition should not be granted, the DOG might have resisted by moving to dismiss on exhaustion of administrative remedies grounds or for failure to allege exhaustion but it might also have

decided that the petition was meritorious and released the petitioner. “The procedure for the granting of this particular writ [i.e., habeas corpus] is not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other

processes. If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the

procedure are not anywhere near as important as the determination of

the ultimate question as to the legality of the restraint.” Anglin, 88 So. 2d at 919-20.

Santana, 12 So. 2d at 848 (brackets in original).

In light of the constitutional and statutory authorities and precedent from this Court noted above, we conclude that the district court below ruled correctly, and we hold that a petition for a writ of habeas corpus, in which a prisoner is seeking immediate release, may not be dismissed based upon the petitioner’s failure to allege exhaustion of administrative remedies where such failure has not been raised by the parties.

CONCLUSION

Based on the above, we approve the First District Court of Appeal’s decision below and disapprove the Third District Court of Appeal’s decision in Pope v. State, 898 So. 2d 253 (Fla. 3d DCA 2005), to the extent it is inconsistent with this opinion.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur. CANADY, C.J., and POLSTON, J., concur in result.

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

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

First District – Case No. 1D08-3852

(Jackson County)

Jennifer Alani Parker, General Counsel, Department of Corrections, Beverly Bartlett Brewster and Carolyn J. Mosely, Assistant General Counsels, Tallahassee, Florida,

for Petitioner

Henry G. Gyden of Swope, Rodante, P.A., Tampa, Florida for Respondent

 

Courtesy of David Edelstein

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

ANDRE PAYNE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-5289  [April 27, 2011]

PER CURIAM.

Appellant, Andre Payne, appeals the trial court’s oral revocation of his community control due to a new offense in violation thereof. We find that the trial court erred when it failed to reduce the oral pronouncement to a written order.

Payne was on probation which was modified to include six months of community control. Upon being charged with aggravated battery with a deadly weapon in violation of his community control, the trial court orally pronounced the revocation of the community control. However, the trial court failed to enter a written order for the same.

This court remands the case for entry of a written order which conforms with the oral pronouncement by the trial court. This act is ministerial for future reference, is not a resentencing, and does not require the presence of the defendant.

Remanded.

GROSS, C.J., POLEN and DAMOORGIAN, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Geoffrey D. Cohen, Judge; L.T. Case No. 08-429 CF10A.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

 

Courtesy of David Edelstein

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

GARY WAYNE GRIMES,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D10-4619  [April 27, 2011]

PER CURIAM.

The petitioner’s appointed appellate counsel, who also represented him at trial, filed a timely notice of appeal on his behalf but then failed to respond timely to this court’s order directing the appellant either to pay the filing fee or to file a circuit court clerk’s determination of indigency status. As a result, the petitioner’s direct appeal, case number 4D09- 4240, was dismissed. This alone constitutes ineffective assistance of appellate counsel. Spivey v. State, 827 So. 2d 390 (Fla. 5th DCA 2002).

The petitioner then filed with the circuit court a pro se motion for the appointment of the public defender’s office as appellate counsel, attaching his completed application for criminal indigent status. The trial court adjudged him indigent for purposes of the appeal but again appointed the same attorney to represent him on appeal. These orders were filed within closed case number 4D09-4240, but no one requested the reinstatement of the dismissed appeal. In response to petitioner’s bar complaint, the attorney indicated he would file a petition for belated appeal, but this court received no such petition.

In response to a pro se communication, this court’s clerk wrote the petitioner on September 15, 2010, to explain that this court had received the lower court’s order of insolvency, but the appeal remained dismissed because no motion to reinstate the appeal had been filed. The September 15 communication to petitioner was served on appointed counsel, but he still filed no motion to reinstate.

appoint conflict-free counsel, asking the trial court to appoint the public defender and representing that appointed counsel had informed the circuit court he was not doing the appeal. The petitioner served a copy of this motion on appointed counsel. The trial court denied the motion, reiterating that it had appointed the same attorney to represent the petitioner on appeal. It served a copy of the order on appointed counsel, but counsel filed nothing further with this court.

Consequently, we now grant the petitioner’s pro se petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. We hereby reinstate the petitioner’s appeal in case number 4D09-4240.

The petitioner already having been certifie d indigent, we also relinquish jurisdiction to the trial court for thirty days to appoint new appellate counsel, either the public defender or another attorney, other than the attorney who previously was appointed.1 Thereafter, substitute appellate counsel is directed to ensure transmittal of the record on appeal to this court within thirty days after appointment and to file the initial brief in case number 4D09-4240 within thirty days thereafter.

Petition granted; direct appeal reinstated; jurisdiction relinquished. WARNER, POLEN and LEVINE, JJ., concur.

* * *

Petition alleging ineffective assistance of counsel to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T. Case No. 502007CF009997AXXXXMB.

Gary Wayne Grimes, Florida City, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for respondent.

Not final until disposition of timely filed motion for rehearing.

1 The petitioner has requested that the trial court be directed to appoint only the Office of the Public Defender to represent him on appeal; however, especially in light of the fact that he was not represented at trial by the Public Defender for the Fifteenth Circuit, where he was tried, the trial court may have valid reasons for not appointing that office to represent him on appeal. At any rate, we leave the appointment to the trial court’s discretion, so long as it is not

the same attorney who previously was appointed.

 

Courtesy of David Edelstein

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

FRITZ PAMPHILE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-3150  [April 27, 2011]

PER CURIAM.

Fritz Pamphile appeals his conviction for unauthorized possession of a driver’s license or identification card based upon the trial court’s denial of his motion to suppress. After the trial court denied his motion to suppress, Pamphile pled nolo contendere to the charge and was sentenced to ten days in the Palm Beach County jail followed by two years of probation. While we acknowledge that the merits of Pamphile’s appeal appear to be strong, his defense attorney did not properly reserve Pamphile’s right to appeal. As such, we have no choice but to affirm the trial court on this direct appeal.

As a general rule, defendants may not directly appeal after pleading guilty or nolo contendere. Fla. R. App. P. 9.140(b)(2)(A). However, a defendant will be permitted to appeal certain issues after pleading guilty or nolo contendere if the right to appeal is properly reserved. Fla. R. App. P. 9.140(b)(2)(A)(i) (“A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.”); § 924.06(3), Fla. Stat. (2008) (“[A] defendant who pleads nolo contendere with no express reservation of the right to appeal a legally dispositive issue, shall have no right to a direct appeal.”). Thus, without both an express reservation of the right to appeal and a finding that the issue is dispositive, through either a trial court’s ruling or a stipulation b y th e state, a defendant who pleads guilty or nolo contendere has no right to a direct appeal.

attorney expressly reserved Pamphile’s right to appeal the denial of the motion to suppress. Pamphile and his attorney signed a pre-printed standardized document that is intended to reiterate, in written form, the various rights being waived and acknowledgements that are part of a legally sound colloquy between a defendant and the court (“the plea form”).

The plea form is devoid of an express reservation of the right to appeal and likewise the colloquy before the trial court did not include the defendant’s express reservation of his right to appeal.1

Pamphile’s attorney also failed to obtain a proper finding that the ruling on the motion to suppress was dispositive. The plea form contained standard language indicating that the defendant acknowledged a waiver of his right to appeal, next to which Pamphile placed his initials. Below the waiver and Pamphile’s initials, someone interlineated the words, “Defendant pleads nolo contendere and the parties stipulate that the motion to suppress is dispositive.”2 It is unclear who wrote this on the plea form, and more importantly, only Pamphile’s signature and that of his attorney appear on the plea form. There is no indication in the record that the state even knew it was written on the plea form. Indeed, there is no space on the plea form for a representative of the state to sign. Additionally, the colloquy between the court and Pamphile did not, in any way, address a reservation of a right to appeal. On the contrary, the defendant acknowledged he was waiving “each and every one of [his] constitutional rights.” Even so, had this been the only flaw in the defense attorney’s attempt to reserve his client’s right to appeal, we could have addressed the merits of this direct appeal. We have previously held that when a motion to suppress attempts to suppress contraband and the charges the defendant faces are for possession of that contraband, then a finding of dispositiveness is essentially presumed. See Diaz v. State, 34 So. 3d 797, 801 (Fla. 4th DCA 2010) (“[W]here a motion tests the suppression of contraband which the defendant is charged with possessing, the motion is usually considered dispositive in the case.”) (citation and quotation marks omitted).

Therefore, while the lack of a finding of dispositiveness is not fatal to Pamphile’s direct appeal, his attorney’s failure to expressly reserve the

1 At the conclusion of the plea hearing, Pamphile’s attorney stated, “As you can probably see, we’re going to move forward with an appeal.” We find this statement does not constitute a legally cognizable express reservation.

2 The actual language was “? pleads NC and the parties stipulate that the MTS is dispositive.”

right to appeal the denial of the suppression motion is fatal. See Hawk v. State, 848 So. 2d 475 (Fla. 5th DCA 2003).3

While Pamphile did not properly reserve his right to appeal, based on the record before us, it appears that he may have a claim for ineffective assistance of counsel which is cognizable under Florida Rule of Criminal Procedure 3.850. See, e.g., Barnhill v. State, 828 So. 2d 405, 407 (Fla. 5th DCA 2002) (acknowledging that a defendant may challenge a guilty plea in a rule 3.850 motion based on “allegations regarding the ineffective assistance of defense counsel in counsel’s efforts to represent the defendant during the plea proceedings”) (citation omitted); Howard v. State, 824 So. 2d 1015, 1016 (Fla. 5th DCA 2002) (noting that filing a rule 3.850 motion alleging ineffective assistance of counsel is the appropriate remedy for a defendant whose attorney advised him or her to plead guilty without reserving the right to appeal).

Affirmed.

POLEN, HAZOURI and CIKLIN, JJ., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Amy L. Smith, Judge; L.T. Case No. 2008CF014944AXX.

David Casals of the Law Office of David Casals, West Palm Beach, for appellant.

Pamela J o Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

3 We hope that Pamphile’s attorney did not intend to intentionally mislead this tribunal. In his reply brief Pamphile’s attorney offers a direct quotation from Hawk: “the lack of an express finding that the issues [sic] is properly preserved is not fatal.” This is not what Hawk states. Hawk holds: “[T]he lack of an express finding of dispositiveness . . . would not have been fatal.” 848 So. 2d at 478 (emphasis added). Hawk does not say what Pamphile’s lawyer says it says. Statements as egregiously false as those made by Pamphile’s counsel are the type that ordinarily lead to sanctions or referral to the Florida Bar for disciplinary action or both.

 

Courtesy of David Edelstein

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

JERRY M. SANNER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-2179  [April 27, 2011]

PER CURIAM.

Appellant challenges his conviction for fleeing and eluding a law enforcement officer under section 316.1935(3)(a), Florida Statutes (2006), claiming that the state failed to prove an essential element of the crime, namely that a patrol vehicle in the chase had “agency insignia and other jurisdictional markings prominently displayed on the vehicle . . . .” We agree that the state failed to put on proof of this statutory element, requiring reversal. See Erskine v. State, 23 So. 3d 1207, 1208-09 (Fla. 3d DCA 2009); Jackson v. State, 818 So. 2d 539, 542 (Fla. 2d DCA 2002); Gorsuch v. State, 797 So. 2d 649, 650-51 (Fla. 3d DCA 2001). We therefore reverse with directions to reduce the conviction to a third degree felony under 316.1935(1). The appellant does not have to be present when the court conducts the resentencing to the lesser felony.

We affirm as to appellant’s challenge to his habitual offender qualification offenses, finding that the state sufficiently proved them and that appellant’s attorney conceded that appellant qualified for habitual offender status.

Affirmed in part; reversed in part and remanded for resentencing in accordance with this opinion.

WARNER, LEVINE and CONNER, JJ., concur.

* * *

Indian River County; Robert A. Hawley, Judge; L.T. Case No. 312006CF001958A.

Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

 

Courtesy of David Edelstein

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

KIMON BLACK,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-1052  [April 27, 2011]

CIKLIN, J.

Kimon Black appeals his convictions for two first-degree murder charges and the resulting two life sentences. We review whether the trial court erred in denying Black’s motion to suppress the statements he made to police after his Miranda1 rights were administered. Because Black clearly and unequivocally invoked his right to counsel, we hold that the police were required to immediately stop questioning him, and any statements that resulted from continued questioning should have been suppressed. Because the error was not harmless, we must reverse and remand for a new trial.

On August 8, 2003, Stanley Johnson and Otis Hayes were shot to death outside a party in Broward County during a fray involving multiple individuals. Almost three years later, on June 2, 2006, Kimon Black was arrested for the murders and taken into custody by detectives of the Broward County Sheriff’s Office. After leaving Black in an interrogation room by himself and with a video camera recording all activities within the room, Detectives Timothy Duggan and Frank Ilarraza entered. Following some preliminary questioning of Black relating to his name and ability to read, the detectives had Black read a Miranda form out loud, including Black’s answers to each Miranda inquiry. As to Black’s Miranda rights, the following exchange between Black and Detective Duggan took place:

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

THE DEFENDANT: You have the right to remain silent. That is, you need not talk to me nor answer any questions that you do not want to. Do you understand that?

THE DETECTIVE: Do you understand?

THE DEFENDANT: Yes.

THE DETECTIVE: Okay. What about number three?

THE DEFENDANT:2 Should you talk to me, anything you say can and may be used against you in a court of law. Do you understand? Yes.

You have the right to talk to an attorney or a lawyer before you talk to—and have an attorney/lawyer here with you during any questioning—during questioning now or in the future, do you understand? Yes.

If you cannot afford to retain your own attorney/lawyer and you want an attorney/lawyer, one will be appointed for you before we ask any questions. Do you understand that? Yeah, I understand that.

If you decide to answer the question now without any attorney present, you will have—you will still have the right to stop answering at any time until you talk to an attorney. Do you understand? [No audible answer]

Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney? No.

Have you previously requested any lawyer enforcement— have you previously requested any law enforcement officer to allow you to speak to any lawyer? Not yet.

THE DETECTIVE: Okay, put no. Sign your name.

THE DEFENDANT: I, Kimon Black, have read or have had it read to me and I understand my rights. Were these rights (inaudible)—a statement and answer questions regarding an attorney present.

I understand that I can stop answering any questions at any time. No threats or promises have been made to me. I understand and know that I’m (inaudible)—and this

2 At this point, Black proceeded to read each Miranda inquiry out-loud as well as state his answer to each without being prompted by Detective Duggan.

statement will be used in a court of law. Put in the time here?

THE DETECTIVE: Sure, it’s 9:42. Sign your name here and print your name here. I will witness it. Thank you. Kimon, do you want to talk to either Frank or I about the double murder?3

At this point, Black began a lengthy narrative response which directly addressed the events surrounding the double homicide. Recognizing that Black had, minutes earlier, unequivocally invoked his right to counsel, Detective Ilarraza asked Black whether he was “still willing to talk to us now about this?” This time, Black replied, “Yeah, I’ll talk to you briefly about it; briefly.” The detective inquired one last time, “Without a n attorney?” and Black responded, “Yeah.” After this exchange, the detectives questioned Black extensively about the double slaying. While Black did not specifically confess or make any directly inculpatory statements, he detrimentally contradicted himself numerous times and made statements that became the centerpiece of the state’s case against him.

Defense counsel filed a motion to suppress any statements that Black made after he invoked his right to counsel. The trial court held a suppression hearing at which the detectives testified and a DVD recording of the entire interrogation was played. The trial court issued a written order denying the motion to suppress, stating that one of the detectives had testified that he did not comprehend Black’s response of “no” (to the question of answering questions in the absence of an attorney) and that the same detective had been up for an extended period of time and “missed” Black’s responses to the Miranda questions. A thorough review of the suppression hearing transcript reveals no evidence to support these findings by the trial court. Neither detective testified about being tired and neither detective used the word “missed” when describing their comprehension of Black’s answers. As a matter of fact, Detective Duggan testified repeatedly on cross-examination that he clearly understood Black’s responses to each Miranda question the first time. Finally, the trial court found that Davis v. United States, 512 U.S. 452 (1994)—in which the United States Supreme Court held that after a defendant waives his Miranda rights, he can only reassert them with clear and unequivocal language—controlled this case. The trial court concluded that, notwithstanding Black’s clear invocation of his right to

3 The entire interrogation was video recorded onto a DVD, which was played, in its entirety, at the suppression hearing and trial.

counsel, he waived his Miranda rights when he continued to speak with the detectives anyway.

Ordinarily, “when reviewing a ruling on a motion to suppress, an appellate court presumes the trial court’s findings of fact are correct and reverses only those findings not supported by competent substantial evidence.” Pierre v. State, 22 So. 3d 759, 765 (Fla. 4th DCA 2009) (citation omitted). Additionally, the trial court’s findings of law are reviewed de novo. Id. However, “this deference to the trial court’s findings of fact does not fully apply when the findings are based on evidence other than live testimony.” Id. (quoting Parker v. State, 873 So. 2d 270, 279 (Fla. 2004)). In this case, the main issue before us relates back to the administration of Miranda warnings to Black and the exchange that occurred afterward—all of which was captured by a video camera and preserved on DVD. This DVD was played in its entirety at the suppression hearing and it appears to be largely on what the trial court based its findings. The trial court also based its order (denying the motion to suppress) on testimony offered by both detectives at the suppression hearing. As such, we review the trial court’s findings that are based on hearing each detective’s live testimony under the ordinary “competent and substantial evidence” standard. However, to the extent that the trial court’s findings are based on viewing the interrogation DVD, which this court of course has also viewed, we utilize a much less deferential standard.

To protect suspects’ constitutional right against self-incrimination,4 law enforcement officers are required to inform them of their right to remain silent and to have counsel present at any custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). Once an individual has invoked his or her right to counsel, police questioning of the person must cease immediately. Id. at 474 (“If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”); Edwards v. Arizona, 451 U.S. 477, 485 (1981) (“We . . . emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.”); Davis, 512 U.S. at 458 (reiterating the Miranda and Edwards holdings that the police must cease interrogation of a person once he or she has clearly invoked the right to counsel). The United States Supreme Court has explained why police must immediately halt any questioning of the suspect upon the suspect’s invocation of the right to counsel:

4 This right is enshrined in both the United States Constitution and the Florida Constitution. U.S. Const. amend. V; art. 1, § 9, Fla. Const.

[A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

Miranda, 384 U.S. at 474.

Any statements that are produced as a result of a Miranda violation must be suppressed. Id. at 479 (“[U]nless and until such warnings and waiver are demonstrated by th e prosecution at trial, n o evidence obtained as a result of interrogation can be used against him.”).

“The safeguards provided by Miranda apply only if an individual is in custody and subject to interrogation.” Timmons v. State, 961 So. 2d 378, 379 (Fla. 4th DCA 2007). Black was clearly in custody as he had been arrested and placed in an interrogation room by law enforcement officials. The detectives intended to interrogate Black about his involvement in the double homicide, so Miranda warnings were obviously required. This factor is undisputed. The interrogating detectives were also aware of this necessity as they dutifully administered Black’s Miranda warnings prior to interrogating him. Accordingly, the issue here is not whether Miranda warnings were necessary, but whether the police honored Black’s answer that he did not want to speak to them without his attorney present. We find that they did not.

In the instant case, Black clearly asserted his right to counsel when he answered “no” to the inquiry, “Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney?” The detective who administered Black’s Miranda warnings testified repeatedly that Black’s answers to each Miranda inquiry were clear and he understood them. Having determined that Black clearly invoked his right to counsel, we must now determine whether the police continued interrogating Black in spite of that invocation.

“[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.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). (footnotes omitted).

Quite simply, asking Black—after he clearly invoked his right to counsel—“Kimon, do you want to talk to either Frank or I [sic] about the double murder?” is likely to elicit an incriminating response. In fact, a follow-up question asking a suspect—after he or she just clearly invoked his or her right to counsel—whether the person wants to speak to the police anyway, appears to be the type of question designed to wear down a suspect’s resistance to police questioning. Given Black’s clear invocation of his right to counsel, the detective’s follow-up question can only be viewed as an effort (intended or not) to wear down Black’s resistance and make him change his mind.5 As such, all of the statements that resulted from the failure to respect Black’s right to counsel are—by definition—in violation of Miranda.6

After Black clearly invoked his right to counsel, his responses to additional police questioning would be admissible only if this court were to find that Black “(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Smith v. Illinois, 469 U.S. 91, 95 (1984) (citation omitted). The law is abundantly clear that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his

5 Had Black’s response to the Miranda inquiries been unclear or ambiguous, the detectives would not only have been allowed to but also obligated to ask clarifying questions to determine Black’s intent. See Alvarez v. State, 15 So. 3d 738, 745 (Fla. 4th DCA 2009) (“Thus, an ambiguous waiver must be clarified before initial questioning.”). However, Black’s answer was not ambiguous in any sense, so clarifying follow-up questions were unnecessary.

6 We acknowledge that the First District held differently in a recent case. See Serrano v. State, 15 So. 3d 629, 635 (Fla. 1st DCA 2009) (“Because a suspect’s yes-or-no response to a question seeking verification of even an unequivocal clear invocation of the right to counsel could hardly be characterized as incriminating or testimonial, an officer’s question to confirm the suspect’s wishes, without more, does not violate clearly established law.”). While we disagree with that holding to the extent that it is inconsistent with the reasoning in this opinion, we note that in Serrano one judge dissented and another concurred with the outcome only and decided to affirm under a harmless error analysis. Therefore, the First District advanced three very different legal reasons to resolve the case, none of which had majority support. Because of the fractured nature of the Serrano opinion, the Florida Supreme Court found that it was unable to review the holding on appeal. See Serrano v. State, 26 So. 3d 582 (Fla. 2010) (“[T]he Court has determined that it lacks jurisdiction in this case because there is no majority decision on the merits.”). As such, we do not certify Serrano as being in conflict with our holding here.

rights.” Edwards, 451 U.S. at 484. Black did not re-initiate any conversation with the detectives; rather, it was the detectives who continued to question Black after he invoked his right to counsel. Therefore, the later attempt by one of the detectives to establish Black’s waiver of his right to counsel was ineffective. It is for this reason as well that the trial court erred in relying upon Davis. Davis applies where a defendant, who has already validly waived his or her Miranda rights, attempts to re-assert them later. See Davis, 512 U.S. at 461 (“[A]fter a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.”). In the instant case, any waiver of Black’s Miranda rights was invalid because it was based upon police-initiated interrogation. See Edwards, 451 U.S. at 484-85 (“[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”).

The state repeatedly emphasized Black’s interrogation statements in its opening statement and played to the jury the entire interrogation DVD. Black did not testify at trial and the main focus of the state’s closing argument was the interrogation DVD. Th e state’s constant closing argument drumbeat was that of a challenge to the jury to test the credibility of the state’s case by reviewing the DVD. The state used Black’s interrogation answers to urge a guilty conscience and implored the jury to play the DVD again during deliberations. Thus, the error here was not harmless. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (stating that, to prove that an error was harmless, the state must show “there is no reasonable possibility that the error contributed to the conviction”).

In many matters—if not most—involving custodial interrogation vis-à-vis Miranda, cases fall on particular distinctions, differences, and factual nuances that are intricately imbedded within complex and sometimes obscure factual scenarios. Seldom are appellate courts presented with a set of facts that illuminate a bright line thereby permitting a clear and simple application of the exclusionary rule. To that extent, we are fortunate.

The issue before u s could not be more straightforward and uncomplicated. The digital recording of the interrogation that occurred in this matter leads to only one inescapable conclusion. When the suspect audibly read and unhesitatingly answered “no” to the following question, his interrogation should have immediately halted: “Do you wish

to answer any questions without a lawyer present?” To hold otherwise would strike at the very heart and meaning of the Fifth Amendment.7 While we do not ascribe any ill motives to the detectives involved in Black’s interrogation, the bright line in this case was clearly crossed.

Reversed and remanded for a new trial. POLEN and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ilona M. Holmes, Judge; L.T. Case No. 06-9559 CF10A.

Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

7 “The right to counsel established by Miranda is a procedural safeguard that is not a right itself protected by the Constitution but is instead a measure to protect the Fifth Amendment right against compulsory self-incrimination.” Spivey v. State, 45 So. 3d 51, 54 (Fla. 1st DCA 2010) (citing Davis, 512 U.S. at 457).

 

Courtesy of David Edelstein

Third District Court of Appeal

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

Opinion filed April 27, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-3033

Lower Tribunal No. 06-34231C

 

Gerald Lelieve,

Appellant,

vs.

The State of Florida,

Appellee.

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

Gerald Lelieve, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before RAMIREZ, C.J., and SUAREZ and LAGOA, JJ.

PER CURIAM.

Gerald Lelieve appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion as untimely filed. We reverse.

Pursuant to rule 3.850(b), an inmate has two years from the date on which a conviction and sentence become final within which to file a motion for post-conviction relief. Lelieve’s direct appeal became final for purposes of this rule when the mandate issued on May 29, 2009. He filed his motion on February 9, 2010. Thus, Lelieve timely filed his motion.

Additionally, the State filed a response below arguing that the motion, if timely, should nevertheless be denied because it was alleging a scoresheet error, and rule 3.850 was not the proper mechanism for relief on a scoresheet error. Lelieve, however, is not complaining about a scoresheet error. He is alleging that his trial counsel was ineffective for failing to object to several errors on the scoresheet, to wit, points for prior offenses which had been resolved as “no action.”

Reversed and Remanded.

 

Courtesy of David Edelstein

Third District Court of Appeal

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

Opinion filed April 27, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-2885

Lower Tribunal No. 10-79-B

 

L.A., a juvenile,

Appellant,

vs.

The State of Florida,

Appellee.

An appeal conducted pursuant to Anders v. California, 386 U.S. 738 (1967), from the Circuit Court for Miami-Dade County, William Johnson, Judge.

L.A., a juvenile, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge. PER CURIAM.

We affirm the judgment, but remand with directions that the trial court correct the adjudicatory order to conform to both its oral pronouncement of April 12, 2010, and the notes reflected in the Case History, also dated April 12, 2010.

Specifically, the adjudicatory order should reflect that: L.A. committed the act described in Count II (burglary of an unoccupied conveyance); a judgment of dismissal was granted on Count I (grand theft of a vehicle); and a finding of not guilty was entered on Count III (resisting an officer without violence). See N.G. v. State, 50 So. 3d 801 (Fla. 3d DCA 2011); Parajon v. State, 50 So. 3d 105 (Fla. 3d DCA 2010). L.A. need not be present.

Affirmed as modified.

 

Courtesy of David Edelstein