Florida Criminal Law Opinions

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. 3D09-3445

Lower Tribunal No. 07-6622

Jose Zamora,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez,

Judge.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.

Before WELLS and SALTER, JJ., and SCHWARTZ, Senior Judge. PER CURIAM.

We affirm the defendant’s judgments and convictions for first-degree murder, carjacking and burglary with an assault. We find no merit to the defendant’s argument that the court erred in permitting the detective’s testimony regarding the citation issued to defendant for driving with a suspended license. This was not Williams1 rule evidence. The suspended license violation was a charged offense, albeit an offense not being tried at that juncture.

Additionally, evidence of a crime that is “inseparable from the crime charged or evidence which is inextricably intertwined with the crime charged is not Williams rule evidence.” Griffin v. State, 639 So. 2d 966, 968 (Fla. 1994). As the driving with a suspended license was part and parcel of the episode that led to the charges at issue in the trial, no impermissible Williams rule evidence was presented to the jury.

Affirmed.

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

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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. 3D08-1922

Lower Tribunal No. 96-8955

Roberto Perez,

Appellant,

vs.

The State of Florida,

Appellee.

An appeal from the Circuit Court for Miami-Dade County, Dava J. Tunis,

Judge.

Eduardo Soto and Javier Morales, for appellant.

Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.

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

PER CURIAM.

Affirmed. See State v. Sinclair, 995 So. 2d 621, 623 (Fla. 3d DCA 2008) (“In order to establish prejudice as a result of the failure to advise a defendant of

the deportation consequences of a plea, ‘[t]he burden is on the movant to establish that the plea in the case under attack is the only basis for deportation. Only then can the movant show prejudice resulting from the failure to advise of deportation consequences in the case under attack.’” (quoting Forrest v. State, 988 So. 2d 38, 40 (Fla. 4th DCA 2008) (emphasis added in original))).

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA,

Appellant,

v.                                 Case No. 2D10-1052

CONISHA A. CADORE,

Appellee.

Opinion filed April 27, 2011.

Appeal from the Circuit Court for Hillsborough County; Thomas P. Barber, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.

KELLY, Judge.

The State appeals from the trial court’s order that dismisses the

cocaine. The State argues that the question of whether Cadore had the ability to exercise dominion and control over the contraband was a jury question, not an issue properly decided on a motion filed under Florida Rule of Criminal Procedure 3.190(c)(4). We agree that, under the facts of this case, the trial court erred in granting the motion.

A defendant may move for dismissal under rule 3.190(c)(4) by alleging that “[t]here are no material disputed facts and [that] the undisputed facts do not establish a prima facie case of guilt against the defendant.” It is the defendant’s burden to demonstrate that no prima facie case exists upon the undisputed facts set forth in detail in the motion. State v. Kalogeropolous, 758 So. 2d 110, 111 (Fla. 2000). In reviewing the undisputed facts, the State is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant. State v. Dickerson, 811 So. 2d 744, 746 (Fla. 2d DCA 2002). In meeting its burden of establishing a prima facie case, the State need not adduce evidence sufficient to sustain a conviction, State v. Ortiz, 766 So. 2d 1137, 1142 (Fla. 3d DCA 2000), and may rely on circumstantial evidence, Kalogeropolous, 758 So. 2d at 112.

In this case, Cadore moved to dismiss the information, arguing that the undisputed facts failed to show that she had dominion and control over the drugs in the residence. The undisputed facts are that a confidential informant purchased crack cocaine on two separate occasions from a person known as “Sunshine,” who was later identified as Conisha Cadore. The transactions took place in Cadore’s residence. Based on this information, law enforcement officers obtained a search warrant authorizing them to search Cadore’s residence for illegal drugs. Upon entering the residence, the officers encountered Cadore and codefendant Brent Starks in the bedroom. As a result of

the search, the officers found approximately 75.4 grams of cocaine in a box on a kitchen shelf, approximately 98 grams of cocaine in a plastic bag inside an oven mitt hanging above the kitchen stove, approximately 132 grams of cocaine in a hat box on a shelf in the bedroom closet, and other illegal drugs in a second box in the same closet. On a dresser in the bedroom, the officers found a statement from the Tampa Electric Company showing Cadore’s name. In a drawer of that dresser, the officers found $2495 in cash. In another dresser beside the bed, they found a loaded Glock .45 handgun, two pieces of mail showing the names of both defendants, and boxes of ammunition. A loaded Glock .45 magazine was found on the couch in the living room. In addition, the officers found a digital scale containing cocaine residue at an unspecified location in the residence. Upon being told her Miranda1 rights, Cadore stated that she “hasn’t sold cocaine from the residence in approximately two weeks.” When an officer showed Starks a bag of cocaine that was found in the residence, Starks stated “that’s mine.”

In its demurrer the State did not dispute the facts Cadore set forth in the motion to dismiss.2 Instead, the State simply argued: “The issue of knowledge, as an element of constructive possession, is an ultimate question which a jury must decide on factual inferences; it is not subject to a motion to dismiss.” The trial court questioned whether the issue of dominion and control, the second element of constructive possession,

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

2Florida Rule of Criminal Procedure 3.190(d) provides that the State “may” traverse a motion to dismiss; otherwise, factual matters asserted therein will be deemed admitted. State v. Paleveda, 745 So. 2d 1026, 1027 (Fla. 2d DCA 1999). “Thus, the State’s failure to file a traverse is not, in itself, fatal to a criminal charge, as the trial court must still consider the facts alleged in the motion to dismiss to determine whether a prima facie case has been established.” Id.; see State v. Jaramillo, 951 So. 2d 97 (Fla. 2d DCA 2007).

could properly be decided on a rule 3.190(c)(4) motion and logically determined that it could. The court granted the motion to dismiss on the basis that the undisputed facts failed to show that Cadore had dominion and control over cocaine which was found in a jointly occupied residence.

Although the court wrestled with the procedural issue of whether constructive possession could be determined on a rule 3.190(c)(4) motion, we believe the issue more properly stated in this case is whether constructive possession can be decided on a (c)(4) motion when the State’s case is comprised entirely of circumstantial evidence which requires a determination of factual issues. We conclude that it cannot. See Isaac v. State, 730 So. 2d 757, 758 (Fla. 2d DCA 1999) (noting that whether a defendant had “dominion and control” over contraband is generally a fact issue for the jury); State v. St. Jean, 658 So. 2d 1056, 1057 (Fla. 5th DCA 1995) (the issue of “knowledge” as an element of constructive possession is an ultimate question which a jury must decide on factual inferences).

Because the officers did not find Cadore in actual possession of the cocaine, the State was required to show that she had constructive possession of it. To establish a prima facie case based on constructive possession, the State had to establish that Cadore knew of the presence of the contraband and that she had dominion and control over it. See Brown v. State, 8 So. 3d 464, 465 (Fla. 2d DCA 2009). The existence of these two elements can only be inferred if the premises where the contraband was found is in the accused’s exclusive possession. Robinson v. State, 975 So. 2d 593, 595 (Fla. 2d DCA 2008). If possession of the premises is joint, the two elements must be shown by independent proof. Wagner v. State, 950 So. 2d 511, 513 (Fla. 2d DCA 2007). Such

proof may consist of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might infer knowledge of the presence of the contraband on the premises. State v. Holland, 975 So. 2d 595, 598 (Fla. 2d DCA 2008).

“In considering a (c)(4) motion the trial judge may not try or determine factual issues nor consider the weight of conflicting evidence or the credibility of witnesses . . . .” State v. Lewis, 463 So. 2d 561, 563 (Fla. 2d DCA 1985). Thus, “[e]ven if the trial court doubts the sufficiency of the State’s evidence, it cannot grant a motion to dismiss criminal charges simply because it concludes that the case will not survive a motion for a judgment of acquittal.” State v. Paleveda, 745 So. 2d 1026, 1027 (Fla. 2d DCA 1999).

“Moreover, if the state’s evidence is all circumstantial, whether it excludes all reasonable hypotheses of innocence may only be decided at trial, after all of the evidence has been presented.” State v. Bonebright, 742 So. 2d 290, 291 (Fla. 1st DCA 1998). “[A] defendant may not be convicted solely upon circumstantial evidence unless the evidence is inconsistent with the defendant’s reasonable hypothesis of innocence. This does not mean, however, that the evidence cannot establish a prima facie case sufficient to withstand a motion to dismiss.” State v. Burrell, 819 So. 2d 181, 182 (Fla. 2d DCA 2002); see Ortiz, 766 So. 2d at 1142.

Based on Cadore’s statement that she had sold cocaine from the premises, evidence of recent cocaine sales to a confidential informant at Cadore’s residence, mail bearing Cadore’s name establishing a connection to the residence, cocaine found in the bedroom where Cadore stood at the time of the execution of the search warrant, cocaine found in a common area of the residence, and a scale containing cocaine residue, the

facts, when viewed in a light most favorable to the State, are sufficient to survive a motion to dismiss, if not a motion for judgment of acquittal. See Dickerson, 811 So. 2d at 746 (noting that, when faced with a motion to dismiss, the State must only establish the “barest prima facie case” (quoting State v. Hunwick, 446 So. 2d 214, 215 (Fla. 4th DCA 1984))).

Accordingly, we reverse with directions to reinstate the charges against

Cadore.

ALTENBERND and MORRIS, JJ., Concur.

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

GREYSON MILLS,

Appellant,

v.                      Case No. 2D10-864

STATE OF FLORIDA,

Appellee.

Opinion filed April 27, 2011.

Appeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Greyson Mills appeals his convictions for trafficking in illegal drugs (oxycodone), possession of morphine, providing a false name or identity to law enforcement, and loitering and prowling. Mills argues that the trial court should have granted his motion to suppress dispositive evidence because the officers had no

reasonable suspicion to stop or probable cause to arrest him for loitering and prowling. We reverse the denial of the motion to suppress because the officers did not have probable cause to arrest Mills. As the lack of probable cause to arrest compels us to reverse, we do not reach the issue of whether the officers had reasonable suspicion to stop Mills.

On February 17, 2009, at about 12:30 a.m., two police officers were patrolling the East Gateway area of downtown Clearwater—which they considered to be a high crime area and which had been recently hit with a series of “smash-and-grab” burglaries—when they saw a man walking out from behind a closed business complex. The officers circled around the block, and the man turned to walk back the way from which he had come. Because the man’s behavior had drawn their attention, the officers pulled behind the business complex. There, they observed the man standing in a dark area “up against the building, behind a tree in . . . some overgrowth.” The officers put a spotlight on the man, and he walked toward them. When they asked him what he was doing, he stated that he had walked behind the business because he had gotten nervous when he saw the police cruiser. He told the officers that his name was David Mills.

The officers arrested Mills for loitering and prowling. When they searched him, they discovered prescription pills (oxycodone and hydromorphone). Upon finding the pills, the officers read Mills his Miranda1 rights. Mills told them that the pills were for his blood pressure and heart. He explained that he was living at the motel next to the business complex (the two buildings were linked by a parking lot). The officers later

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

discovered that the man’s name was actually Greyson Mills. There were no 911 calls reporting criminal activity in the immediate area at the time the officers stopped Mills.

In an appeal of a motion to suppress, we must accept the trial court’s findings of fact if they are supported by competent, substantial evidence. Simms v. State, 51 So. 3d 1264, 1265 (Fla. 2d DCA 2011). We review the trial court’s application of the law de novo. Id.

To justify arresting Mills, the officers needed probable cause to believe that he had already committed, was currently committing, or was about to commit a crime. See Caldwell v. State, 41 So. 3d 188, 196 (Fla. 2010). Here, the officers arrested Mills for loitering and prowling. See § 856.021, Fla. Stat. (2008). There are two elements to the crime of loitering and prowling. Ferguson v. State, 39 So. 3d 551, 553 (Fla. 2d DCA 2010).

First, ” ‘the accused must loiter or prowl in a manner not usual for a law-abiding citizen. This conduct must come close to but fall short of the actual commission or attempted commission of a substantive crime and suggest that a breach of the peace is imminent.’ ” Id. (quoting Rucker v. State, 921 So. 2d 857, 859 (Fla. 2d DCA 2006)). The first element requires more than a “vaguely suspicious presence.” J.S.B. v. State, 729 So. 2d 456, 457 (Fla. 2d DCA 1999). And a defendant’s “response to the police pursuit cannot be used retroactively to support an imminent suspicion of criminal activity.” Hollingsworth v. State, 991 So. 2d 990, 992 (Fla. 4th DCA 2008).

Second, ” ‘the factual circumstances must establish that the accused’s behavior is alarming in nature, creating an imminent threat to public safety.’ ” Ferguson, 39 So. 3d at 553 (quoting Rucker, 921 So. 2d at 859). In this context, “drug possession

does not pose a threat to persons or property.” Stephens v. State, 987 So. 2d 182, 184 (Fla. 2d DCA 2008). Both elements of the offense of loitering and prowling must occur in the officer’s presence and must be completed before the officer takes action. J.S.B., 729 So. 2d at 457. Additionally, “[a] defendant’s explanation of his presence is not an element of the crime [of loitering and prowling].” Simms, 51 So. 3d at 1267.

Because of its potential for abuse, the loitering and prowling statute must be applied with special care. Id. at 1268. ” ‘It cannot be emphasized enough that the loitering and prowling statute is not to be used as a “catchall” provision whereby police may arrest citizens where there is no other basis which would justify their detention.’ ” Id. (quoting L.C. v. State, 516 So. 2d 95, 97 (Fla. 3d DCA 1987)). “Instead, the proper application of this statute ‘requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property.’ ” L.C., 516 So. 2d at 97 (quoting State v. Ecker, 311 So. 2d 104, 107 (Fla. 1975)).

The officers in this case did not have probable cause to arrest Mills for loitering and prowling. Because they did not observe Mills committing both elements of the crime, they could not provide an objective, articulable justification for arresting him. See Simms, 51 So. 3d at 1268; Watts v. State, 583 So. 2d 792 (Fla. 2d DCA 1991); Woody v. State, 581 So. 2d 966 (Fla. 2d DCA 1991).

In Woody, a police officer on patrol at 6:40 p.m. noticed a group of several men congregating in a residential neighborhood known for drug activity. Upon seeing the officer in his marked vehicle, the men fled. One of the men, Arthur Woody, hid in dense foliage about thirty to forty feet away from nearby homes. When the officer

approached Woody and questioned what he was doing, he replied that he was “just hanging out.” Woody, 581 So. 2d at 966. The officer, unsatisfied with the explanation, arrested Woody for loitering and prowling. In a search incident to the arrest, the officer discovered a crack pipe with cocaine residue. The officer testified that he had arrested Woody to prevent him from robbing or kidnapping passersby. This court held that the officer did not have probable cause to arrest Woody for loitering and prowling, stating that the officer’s concern for the safety of passersby was “not supported by any articulable facts which could reasonably warrant such a concern.” Id. at 967. The court further clarified that the officer’s concern was “based on pure speculation; there was nothing to suggest any independent criminal activity afoot.” Id.

Much like the officer in Woody, the officers in this case arrested Mills based on “pure speculation.” Mills was at most a vaguely suspicious presence. While he was in a high crime area that had been hit with a series of “smash-and-grab” burglaries, there had been no report of a burglary in the area at the time the officers encountered him. Mills’ conduct of walking out from behind a closed business, turning around when he saw the officers, and walking back behind the closed business did not come close to the actual commission or attempted commission of a substantive crime. Nor did it suggest that a breach of the peace was imminent. Additionally, Mills’ behavior did not raise alarm or suggest an imminent breach of the peace or threat to persons or property.

Mills attempted to avoid the police and, when the officers pursued him, he concealed himself. But when the officers spoke to him, he came out from his hiding place, identified himself, and provided some explanation for his behavior. While his

explanation that the police made him nervous was vaguely suspicious, it was not enough to raise alarm or suggest an imminent threat.

And though the officers later discovered that Mills had provided a false name and had illegal drugs on him, these facts cannot be used retroactively to support the officers’ suspicion of imminent criminal activity. See Stephens, 987 So. 2d at 184. Furthermore, evidence of these two types of crimes would not support a finding that Mills was an imminent threat to persons or property. See id.

Because the officers did not have probable cause to arrest Mills, the evidence obtained during the search should have been suppressed. Accordingly, we reverse.

Reversed.

KELLY and BLACK, JJ., Concur.

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JAROD J. BUTERA,

Appellant,

v.                              Case No. 2D09-4401

STATE OF FLORIDA,

Appellee.

Opinion filed April 27, 2011.

Appeal from the Circuit Court for

Hillsborough County; Gregory P. Holder, Judge.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Jarod J. Butera appeals an order revoking probation after the trial court found that he had violated the terms of his probation by possessing cocaine and

marijuana. Because neither violation was established by the greater weight or preponderance of the evidence, we reverse the order revoking Butera’s probation.

Shortly after being placed on probation, Butera was arrested for possession of cocaine and possession of marijuana. Butera’s arrest led to the filing of an affidavit of violation of probation. The affidavit alleged that Butera had committed the offenses of possession of cocaine and possession of cannabis, thereby resulting in two violations of the condition of Butera’s probation that required him to live without violating the law. The matter proceeded to a revocation hearing.

Evidence introduced at the revocation hearing revealed that the incident giving rise to Butera’s arrest occurred on June 3, 2009. On that date, Butera was the sole backseat passenger of a vehicle that was stopped for a traffic violation. The other occupants of the vehicle included the driver and a female passenger who was sitting in the front seat of the vehicle at the time of the traffic stop.

At the revocation hearing, the driver and the female passenger were called as witnesses but they invoked their right to remain silent. The detective who had arrested Butera and had spoken to the vehicle’s occupants testified that he stopped the vehicle for running a red light and that as he talked to the driver he “could detect the presence of marijuana”—he smelled marijuana. The detective testified that he asked the driver of the vehicle about the odor and that the driver indicated that he had previously smoked in the vehicle but that he was not “currently smoking in it.”

The detective testified that he then conversed with the female front-seat passenger. He testified that the female passenger told him that there were drugs in the back of the car, that Butera had hidden something under her seat, and that Butera had

given her certain items of drug paraphernalia to hide from the police when they were pulled over by law enforcement. The female passenger gave the drug paraphernalia to the detective.1

The detective testified that he also conducted a search of Butera’s person, but that he did not find any contraband. The detective then searched the vehicle. During the search of the vehicle, the detective found a “small bag” containing crushed pills, a “small baggie” containing marijuana, and a “small baggie” containing cocaine. The detective found all of these items in a compartment on the back of the passenger-side front seat when he pulled the compartment forward. Butera had been sitting directly behind the passenger-side front seat when the vehicle was stopped.

The detective arrested Butera for possession of cocaine and possession of marijuana, but he did not arrest the driver or the female passenger. The detective testified that the main reason he arrested Butera and not the others was the proximity of the drugs in relation to where Butera had been sitting.

After hearing the evidence, the trial court found that Butera had committed the two violations alleged in the affidavit, and it revoked Butera’s probation.

The revocation of Butera’s probation was predicated upon his commission of two offenses–possession of cocaine and possession of cannabis. “[W]here the revocation is predicated upon the commission of a crime, mere suspicion that the probationer was involved in criminal activity does not suffice.” Miller v. State, 420 So. 2d 631, 633 (Fla. 2d DCA 1982). On the other hand, “evidence to support a criminal conviction is not necessary to sustain a probation revocation order.” Id. at 632-33.

1The affidavit of violation did not rely upon or charge possession of paraphernalia.

Rather, a trial court may revoke a defendant’s probation if “the probationer’s criminal activity is shown by the greater weight of the evidence.” Swift v. State, 473 So. 2d 818, 819 (Fla. 2d DCA 1985).

The greater weight or preponderance of the evidence presented at the revocation hearing did not demonstrate that Butera committed either of the offenses alleged in the affidavit of violation. Because the cocaine and cannabis were not found on Butera’s person or in his exclusive possession, the evidence had to establish constructive possession. Generally, in order to establish constructive possession of a controlled substance at the time these alleged violations occurred, the evidence had to demonstrate (1) that the defendant knew of the presence of the contraband and (2) that he or she had the ability to maintain dominion and control over the controlled substance. See Links v. State, 927 So. 2d 241, 243 (Fla. 2d DCA 2006).

The State presented evidence of Butera’s proximity to the contraband. However, even in the context of a probation revocation proceeding, a defendant’s knowledge of the presence of contraband and ability to control it cannot be inferred from the defendant’s proximity if the contraband is found in a location that is in joint, rather than exclusive, possession of the defendant. Corker v. State, 31 So. 3d 958, 961 (Fla. 1st DCA 2010). These elements must be established by independent proof, albeit only by a mere preponderance of the evidence. Id.

The State presented evidence that the detective smelled the odor of marijuana as he talked to the driver of the vehicle, and that when asked about the odor the driver indicated that he had previously smoked in the vehicle. The State also presented hearsay evidence concerning the female passenger’s conversation with the

detective, wherein she claimed that Butera had given her drug paraphernalia to hide from the police, that Butera had hidden something under her seat, and that there were drugs in the back of the car.2 See Johnson v. State, 962 So. 2d 394, 396-97 (Fla. 2d DCA 2007). But this hearsay evidence did not provide sufficient proof of Butera’s knowledge of and ability to control the cocaine or the marijuana found in the vehicle to support the revocation.

The greater weight or preponderance of the evidence presented at the revocation hearing did not establish Butera’s knowledge of or his dominion and control over the cocaine or the marijuana found in the vehicle. Accordingly, we reverse.

Reversed.

NORTHCUTT and MORRIS, JJ., Concur.

2We note that the State did not introduce any evidence with respect to whether the paraphernalia tested positive for the residue of cocaine or marijuana. We also note that the State did not introduce any direct, nonhearsay evidence linking the paraphernalia to Butera.

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

ASCOUR NATAN,

Appellant,

v.                                Case No. 2D08-5667

STATE OF FLORIDA,

Appellee.

Opinion filed April 27, 2011.

Appeal from the Circuit Court for Polk

County; J. Dale Durrance, Jr., Judge.

Joseph P. Klock, Jr. and Hilton Napoleon, II, of Rasco Klock Reininger Perez, Coral Gables, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.

WHATLEY, Judge.

Ascour Natan appeals his convictions of aggravated stalking and arson. He raises several issues on appeal, and we find that the error committed by the bailiff in handling an improperly tagged piece of evidence sent back with the jury during deliberations requires reversal for a new trial.

Several days after the jury returned its verdict finding Natan guilty as charged, the assistant state attorney (ASA) who prosecuted the case sent a letter to the trial court and Natan’s counsel informing them of actions by the bailiff. The ASA stated that as the verdict was being returned, the bailiff told him that the jury had advised the bailiff that a piece of evidence introduced during trial and sent back with the jury during its deliberations had an extra tag on it. Apparently, in addition to being properly tagged for Natan’s case, the evidence was also improperly tagged in someone else’s case.

The bailiff brought the evidence to the courtroom, showed it to the ASA, and advised him that he had taken care of the situation, the ASA had some help, and not to bring it up. The ASA wrote in his letter that although he had gotten to know the bailiff and believed his comments were likely made in jest, he believed he had to disclose the comments. We commend the ASA for his disclosure.

The Florida Supreme Court applies a “per se reversible error rule when a bailiff has unsupervised communications with a jury. See State v. Merricks, 831 So. 2d 156, 161 (Fla. 2002) . . . .” Johnson v. State, 53 So. 3d 1003, 1008 (Fla. 2011). See also § 918.07, Fla. Stat. (2007) (prohibiting officers in charge of jurors from communicating with jurors “on any subject connected with the trial”). Although we do not know if the bailiff in this case said anything to the jury when it advised him of the improper tag, because he told the ASA that he had taken care of the situation, the ASA had some help, and not to bring it up, we must reverse Natan’s convictions and remand for a new trial.

Reversed and remanded with directions.

DAVIS and KELLY, JJ., Concur.

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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

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

DAVID LUTZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D09-6587

Opinion filed April 21, 2011.

An appeal from the Circuit Court for Escambia County. T. Michael Jones, Judge.

Nancy A. Daniels, Public Defender; and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

While the appellant was on probation for crimes not at issue in this appeal, the State charged him with new substantive offenses: one count of felony petit theft and one count of dealing in stolen property. §§ 812.014(1)(a)-(b), (3)(a), (c); 812.019(1), Fla. Stat. (2008). At the trial, the court read the standard jury

instructions concerning theft and dealing in stolen property and informed the jury that a finding of guilty or not guilty as to one crime must not affect its verdict as to the other charged crime. The defense announced it was satisfied with the instructions as read. The jury found the appellant guilty of both petit theft and dealing in stolen property, and the trial court sentenced him on the new offenses as well as on those prior crimes for which he was on probation. Ruling on the appellant’s Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentence, the trial court struck the habitual felony offender (HFO) designation from the petit theft conviction and, having received certified, qualifying prior felony judgments and sentences pursuant to section 775.084(1)(a), Florida Statutes (2008), resentenced him to a five-year HFO sentence for dealing in stolen property and to a concurrent five-year non-HFO sentence for petit theft.

The appellant contends that section 812.025, Florida Statutes (2008), precludes him from being convicted and sentenced for both petit theft and dealing in (the same) stolen property by trafficking involving one criminal scheme or continuing course of conduct, and that he is entitled to a new trial pursuant to Kiss v. State, 42 So. 3d 810 (Fla. 4th DCA 2010) (concluding that the trial court’s unchallenged failure to instruct the jury that it could return guilty verdicts on dealing in stolen property or grand theft of the same property, but not both, was fundamental error where the acts involved one scheme or course of conduct, and

that merely striking the grand theft charge and sentencing the defendant only on the stolen property counts could not cure the error).

In accordance with the controlling precedents in our own district, we affirm the conviction and HFO sentence for dealing in stolen property, but vacate the conviction and sentence for petit theft and remand for the trial court to correct the judgment and sentence accordingly. See, e.g., Blackmon v. State, Case Nos. 1D10-2018 and 10-2021 (Fla. 1st DCA Mar. 31, 2011) (certifying conflict with Kiss regarding the proper remedy); C.E.C. v. State, 884 So. 2d 421 (Fla. 1st DCA 2004); Day v. State, 793 So. 2d 68 (Fla. 1st DCA 2001); Smith v. State, 789 So. 2d 521 (Fla. 1st DCA 2001); Schummer v. State, 657 So. 2d 3 (Fla. 1st DCA 1995); Alexander v. State, 470 So. 2d 856 (Fla. 1st DCA 1985). Accord Bishop v. State, 718 So. 2d 890 (Fla. 2d DCA 1998); T.S.R. v. State, 596 So. 2d 766 (Fla. 5th DCA 1992); Duncan v. State, 503 So. 2d 443 (Fla. 2d DCA 1987); Ridley v. State, 407 So. 2d 1000 (Fla. 5th DCA 1981).

AFFIRMING the judgment and sentence for dealing in stolen property, VACATING the conviction and sentence for petit theft, and remanding for the trial court to make the appropriate corrections.

WOLF, THOMAS, and ROWE, JJ., CONCUR.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ANDREA POWER, Appellant,

v.

RICHARD BOYLE,

Appellee,

CASE NO. 1D10-6437

CHARLES FULFORD,

Appellant,

v. CASE NO. 1D-10-6438

RICHARD BOYLE,

Appellee,

ANDREA POWER, Appellant,

vs. CASE NO. 1D10-6439

MARTHA BOYLE, Appellee,

CHARLES FULFORD,

Appellant,

v. CASE NO. 1D10-6440

MARTHA BOYLE,

Appellee.

Opinion filed April 21, 2011.

An appeal from the Circuit Court for Nassau County. Brian J. Davis, Judge.

Gary Baker, Callahan, for Appellants.

Richard Boyle, and Martha Boyle, pro se, Appellees.

PER CURIAM.

These cases, which we consolidate for purposes of this opinion, involve permanent injunctions against repeat violence entered against Andrea Power and Charles Fulford based on petitions filed by Richard and Martha Boyle under section 784.046, Florida Statutes (2010). Ms. Power and Mr. Fulford argue that

the evidence presented at the hearing on the petitions was legally insufficient to support the injunctions. We agree, and reverse the injunctions.

Ms. Power, Mr. Fulford, and the Boyles all live in the same neighborhood in Nassau County. The events leading to the injunctions started in 2008 when Ms. Power purchased a house from the Boyles. After the sale, there were several disagreements regarding the condition of the house and landscaping that caused the relationship between Ms. Power and the Boyles to sour. Over the next two years, Mrs. Boyle claimed that Ms. Power expressed her distaste of the Boyles by yelling obscenities at their house, “flipping off” their house, letting her dog urinate on their garage door, and writing profane and inappropriate notes on mail that was delivered to the Boyles? old residence. The Boyles cited these incidents in support of their petitions for injunction, along with several additional incidents in June 2009 and October 2010.

According to Mrs. Boyle, on June 22, 2009, Ms. Power, Mr. Fulford, and Ms. Power?s husband stumbled by her house, apparently intoxicated, and when the trio stopped at the corner of the Boyles? lot, Ms. Power yelled obscenities at the house. Mrs. Boyle was on her front porch at the time, but she was shielded behind a bush and there is no evidence that Ms. Power saw her or was directing the obscenities at her. Approximately ten minutes later, Mrs. Boyle testified that she

heard several gun shots coming from Mr. Fulford?s back yard. Ms. Power and Mr. Fulford denied that this incident occurred.

On October 9, 2010, Mr. Boyle called the police after he saw several people trying to cut plants in his yard. In his statement to the responding officer, Mr. Boyle identified Mr. Fulford as the culprit, and Mr. Fulford was subsequently arrested. However, at the hearing on the petitions in this case, Mr. Boyle testified that it was Ms. Power (not Mr. Fulford) who he saw cutting his plants and that he has “never had one problem with [Mr.] Fulford.” Mr. Boyle testified that the reason he sought an injunction against Mr. Fulford was his concern that Mr. Fulford?s association with Ms. Power, combined with his consumption of alcohol and ownership of firearms, was not safe.

The morning after this incident, Ms. Power walked by the Boyles? residence with several of her friends and Mrs. Boyle started following them. She told Ms. Power that Mr. Fulford had been arrested for cutting the Boyles? plants and that Ms. Power was next because the Boyles had security cameras that captured the incident on video. (Mrs. Boyle admitted at the injunction hearing that there was no such video.) Then, according to Ms. Power, Mrs. Boyle threatened to throw her coffee at Ms. Power or one of her friends. Mrs. Boyle acknowledged the confrontation and that she was upset at the time, but denied threatening to throw her coffee at Ms. Power.

On October 11, 2010, Mr. and Mrs. Boyle each filed separate petitions for injunction against Ms. Power and Mr. Fulford under section 784.046. The trial court granted temporary injunctions and, after holding a consolidated hearing on all of the petitions, the court entered four separate permanent injunctions for protection against repeat violence, two against Ms. Power (one in favor Mr. Boyle, and one in favor of Mrs. Boyle) and two against Mr. Fulford (one in favor of Mr. Boyle, and one in favor of Mrs. Boyle). In explaining its decision to enter the injunctions, the trial court recognized that “this case does not fall within the purview of our most ordinary uses of [section 784.046],” but the court reasoned that an injunction is necessary “to keep the peace” between the parties and that the circumstances of this case “fall[] within the broader purview of the statute” because of the harassing nature of the incidents described by the Boyles. These timely appeals followed.

Section 784.046 authorizes the trial court to enter injunctions for protection against repeat violence. The statute does not allow the trial court to enter injunctions simply “to keep the peace” between parties who, for whatever reason, are unable to get along and behave civilly towards each other. See Horne v. Endres, Case No. 1D10-4038, at 2 (Fla. 1st DCA Apr. __, 2011) (reversing “no contact order” entered pursuant to section 784.046 and observing that “even courts of general jurisdiction are without plenary power to enjoin citizens to remain on

good behavior”); Polanco v. Cordeiro, 35 Fla. L. Weekly D2098, D2099 (Fla. 2d DCA Sept. 22, 2010) (Villanti, J., concurring) (“Petitions for injunctions against repeat violence, or against domestic violence for that matter, are to be used only to rectify the egregious conduct outlined in the statutes themselves. [citations omitted] These statutory provisions are not a panacea to be used to cure all social ills. In fact, nowhere in the statutory catalog of improper behavior is there a provision for court-ordered relief against uncivil behavior . . . .”).

Section 784.046 defines repeat violence as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner?s immediate family member.” § 784.046(1)(b), Fla. Stat. (emphasis added). The statute defines violence to mean “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death.” § 784.046(1)(a), Fla. Stat. Stalking has been interpreted to mean “repeated acts of following or harassment.” Lukacs v. Luton, 982 So. 2d 1217, 1219 (Fla. 1st DCA 2008); see also § 784.048(2), Fla. Stat. (providing that a person who “willfully, maliciously, and repeatedly follows or harasses another person” commits the crime of stalking). Harassment is defined as a series of acts over a period of time “directed at a specific person that causes substantial

emotional distress in such person and serves no legitimate purpose.” § 784.048(1)(a); Fla. Stat.; see also McMath v. Biernacki, 776 So. 2d 1039, 1040 (Fla. 1st DCA 2001) (citing Bouters v. State, 659 So. 2d 235, 238 (Fla. 1995), for the proposition that a reasonable person standard applies in determining whether an incident causes substantial emotional distress so as to constitute harassment).

The trial court?s finding of two incidents of violence or stalking required for an injunction under section 784.046 must be supported by competent substantial evidence. See Terrell v. Thompson, 935 So. 2d 592, 593 (Fla. 1st DCA 2006); McMath, 776 So. 2d at 1041. Here, the trial court apparently credited the testimony of the Boyles regarding the incidents described above. It is not our role to second-guess the trial court?s decision to accept the Boyles? testimony over that of Ms. Power and Mr. Fuford; however, we agree with Ms. Powers and Mr. Fulford that the incidents described by the Boyles were legally insufficient to support the injunctions for protection against repeat violence because the incidents do not rise to the level of violence or stalking under section 748.046, and as to Mr. Fulford, the Boyles did not even establish the existence of two incidents as required by the statute.

The only incident involving Mr. Fulford was that he was allegedly drunk and with Ms. Power when she yelled profanities at the Boyles? residence. There was no evidence that Mr. Fulford made any statements or gestures towards the house

during this incident, and Mr. Boyle testified that he has “never had one problem with [Mr.] Fulford.” The guilt-by-association-with-Ms. Power justification offered by Mr. Boyle for the petition against Mr. Fulford is not a legitimate basis for the issuance of an injunction under section 784.046.

The incidents involving Ms. Power were immature and uncivil, and we do not in any way condone her behavior towards the Boyles. However, these incidents do not constitute violence or stalking for purposes of an injunction under section 784.046. There was no evidence that Ms. Power ever threatened either of the Boyles with violence or that she committed an overt act that would create a reasonable fear in the Boyles? minds that violence was imminent. See Gagnard v. Sticht, 886 So. 2d 321, 322 (Fla. 3d DCA 2004) (finding that although respondent threatened to kill petitioner and “„F? him up,” without “overt acts indicating an ability to carry out the threats or justifying a belief in [petitioner] that violence was imminent” no injunction should issue); Russell v. Doughty, 28 So. 3d 169, 170 (Fla. 1st DCA 2010) (holding that yelling profanities and threats at the petitioner, even after a previous battery by respondent against petitioner, was not sufficient for a finding of “repeat violence” without evidence that respondent took an action creating a “well-founded fear that violence was imminent”); Sorin v. Cole, 929 So. 2d 1092, 1094 (Fla. 4th DCA 2006) (“Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of

violence required for an injunction.”); Perez v. Siegel, 857 So. 2d 353, 355 (Fla. 3d DCA 2003) (holding that two separate incidents where respondent yelled at petitioner, even when respondent allegedly threatened to kill petitioner and her family, were not sufficient to support an injunction without some overt act creating a well-founded fear of imminent violence); Johnson v. Brooks, 567 So. 2d 34, 35 (Fla. 1st DCA 1990) (holding that numerous harassing phone calls, some containing threats, were not sufficient to support trial court?s decision to grant injunctive relief). Moreover, based on the confrontation that Mrs. Boyle initiated with Ms. Power and her friends the day after Mr. Fulford was arrested, it appears that the relationship between Ms. Power and Mrs. Boyle is more tit-for-tat than stalker-victim. Indeed, although the trial court did not make any findings on the issue, there was evidence presented at the hearing that Mrs. Boyle communicated with Ms. Power?s employer regarding her negative opinion of Ms. Power?s fitness as an employee. (Mrs. Boyle admitted to talking to Ms. Power?s employer, but claimed that she did so only because the employer solicited her opinion about Ms. Power.)

The Boyles argue that the injunctions against Ms. Power and Mr. Fulford should be affirmed based on this court?s decision in Lukacs because, in that case, the court affirmed an injunction under section 784.046 based on a single incident of stalking. We find Lukacs to be distinguishable because the respondent?s actions

in that case were much more threatening than any of the actions of Ms. Power and Mr. Fulford in this case. In Lukacs, there was evidence that the respondent had followed petitioner home from work and then, the next day, verbally threatened the petitioner by saying that he knew where she lived and he might rape her. See 982 So. 2d at 1218. Here, there was no evidence that Ms. Power or Mr. Fulford threatened the Boyles with any harm, and although the Boyles claimed that Ms. Power destroyed their plants and that someone shot a gun in Mr. Fulford?s backyard shortly after one of the incidents in which Ms. Power was yelling obsenities at the Boyles? home, we are not persuaded that these incidents would cause a reasonable person to believe that physical violence was imminent.

In sum, because the evidence presented in support of the petitions was legally insufficient to support an injunction under section 784.046, the trial court erred in entering the permanent injunctions for protection against repeat violence against Ms. Power and Mr. Fulford. Accordingly, we reverse the injunctions and remand for the trial court vacate the injunctions.

REVERSED and REMANDED with directions.

DAVIS, LEWIS and WETHERELL, JJ., CONCUR.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

SHAMAR MCCULLUM,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-6735

Opinion filed April 21, 2011.

An appeal from the Circuit Court for Duval County. David M. Gooding, Judge.

Shamar McCullum, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant seeks review of an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because we agree with the appellant that his two life sentences are illegal, we reverse.

On July 29, 2004, the appellant pled guilty to the charges of attempted second-degree murder and robbery with a firearm. The appellant was seventeen years old, a juvenile, when he committed the offenses. He was sentenced to life imprisonment without the possibility of parole for both offenses.

In 2010, the United States Supreme Court held that the imposition of a life¬without-parole sentence on a juvenile offender who did not commit homicide violates the Eighth Amendment’s prohibitions against cruel and unusual punishment. Graham v. Florida, 130 S. Ct. 2011, 2034 (2010). The Court further stated that “[a] state need not guarantee the offender eventual release, but if it imposes a sentence of life, it must provide him or her with some realistic opportunity to obtain release before the end of that term. Id. Since Florida has abolished its parole system, see § 921.002(1)(e) Fla. Stat. (2003), the appellant—a juvenile offender sentenced to life—“has no possibility of release unless he is granted executive clemency.” Graham, 130 S. Ct. at 2020. We conclude the appellant is entitled to relief under Graham.

In doing so, we reject the state’s assertion that an attempted homicide should be treated as an actual homicide under Graham, finding the reasoning in Manuel v. State, 48 So. 3d 94 (Fla. 2d DCA 2010), to be persuasive. In Manuel, the defendant pled guilty to, among other offenses, two counts of attempted first-degree murder, and received a life sentence on one count concurrent to forty years’

imprisonment on the second. Id. at 95–96. In keeping with Graham’s new bright-line rule, the court found the defendant’s life sentence was unconstitutional, reasoning:

The Florida Supreme Court has stated that under the definition of homicide, “it is necessary for the act to result in the death of a human being.” Tipton v. State, 97 So. 2d 277, 281 (Fla. 1957). And as the Graham Court explained, “ ‘[l]ife is over for the victim of the murderer,’ but for the victim of even a very serious nonhomicide crime, ‘life . . . is not over and normally is not beyond repair.’ ” Graham, 130 S. Ct. at 2027 (quoting Coker v. Georgia, 433 U.S. 584, 598 (1977)). . . . Hence, simple logic dictates that attempted murder is a nonhomicide offense because death, by definition, has not occurred.

Manuel, 48 So. 3d at 97.

We agree with this reasoning, and therefore hold that the appellant’s life sentence for attempted second-degree murder is unconstitutional under Graham. The appellant’s concurrent life sentence for robbery with a firearm is likewise illegal.

Accordingly, we reverse and remand to the trial court for vacation of the appellant’s sentence and resentencing in accordance with the Supreme Court’s holding in Graham.

REVERSED and REMANDED.

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

Courtesy of David Edelstein

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