Florida Criminal Law Opinions

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

WILLIAM MORRISON,

Appellant,

v.                                Case No. 2D09-275

STATE OF FLORIDA,

Appellee.

Opinion filed April 20, 2011.

Appeal from the Circuit Court for Polk County; Michael E. Raiden, Judge.

James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.

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

MORRIS, Judge.

William Morrison appeals the revocation of his probation and resulting sentence for two counts of lewd and lascivious conduct on a child under sixteen. We affirm the revocation of his probation without discussion. However, because the trial

court imposed upward departure sentences without legal justification and improperly added legal status points, we reverse and remand for resentencing.

Background

The underlying crimes occurred between March 1 and March 28, 1995, and again on August 21, 1997. Morrison pleaded guilty and was sentenced to two 93.6- month prison terms followed by five years’ probation. In September 2007, affidavits of violation of probation were filed alleging that Morrison had unsupervised contact with children and committed a new law violation. However, at the violation of probation (VOP) hearing, the trial court determined that the State failed to prove the new law violation and Morrison’s probation was revoked solely on the basis of his unsupervised contact with children. For both counts, the trial court imposed consecutive upward departure sentences of fifteen years in prison.

Morrison filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) wherein he challenged the upward departure sentences as well as the inclusion of legal status points on his scoresheet, but that motion was denied. We conclude, however, that Morrison is entitled to relief.

Analysis

” ‘The level of proof necessary to establish facts that support a departure from the sentencing guidelines is a preponderance of the evidence.’ ” Powanda v. State, 8 So. 3d 1230, 1232 (Fla. 2d DCA 2009) (quoting § 921.001(4)(a)(6), Fla. Stat. (2007)). ” ‘This aspect of the [trial] court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent[,] substantial evidence supports its rulings.’ ” Id. (first alteration in original)

(quoting Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999)); see also § 921.001(6), Fla. Stats. (1995) & (1997) (providing that departure sentence shall be upheld when at least one factor justifies departure regardless of whether other factors do not justify departure).

A. Vulnerability of the victim

The first factor cited by the trial court to justify an upward departure was the vulnerability of the victims in the underlying cases. Section 921.0016(3)(j) permits an upward departure if this factor is proven. However, the State failed to offer proof of this factor at the VOP hearing. Because no such proof was adduced at the VOP hearing, we sought the transcripts of the plea hearings in the 1995 and 1997 cases to see if the State proved that factor during those proceedings. See Powanda, 8 So. 3d at 1232 (noting lack of proof regarding victim’s vulnerability at the VOP hearing, as well as at the plea hearing on the underlying charge). After receiving notice from the clerk of the circuit court that the transcripts have been destroyed, we relinquished jurisdiction pursuant to Florida Rule of Appellate Procedure 9.200(b)(4) and (f)(2) so that Morrison could prepare a statement of the evidence or proceedings. Morrison submitted a statement of the facts to the trial court, and because the State filed no objection and no response, the trial court approved the statement as submitted. Attached to the statement of the facts was an affidavit wherein Morrison stated that the two plea hearings were brief and without testimony.

In Powanda, the appellant’s underlying charge was sexual contact with a child twelve years of age or older, but less than eighteen years of age. We reversed Powanda’s upward departure sentence because “neither party presented any evidence

about the victim’s vulnerability at either Mr. Powanda’s violation of probation hearing or at his 1999 plea hearing.” 8 So. 3d at 1232. In so holding, we made it clear that the vulnerability of the victim may not be implied solely based on the State’s decision to charge the defendant with a crime wherein the victim’s age is an element of the crime. Rather, there must be independent proof. See id.

Accordingly, because there is nothing in the record indicating that the vulnerability of the victim was presented at either the VOP hearing or the plea hearings, Powanda dictates that this factor cannot support an upward departure.

B. Amenability to rehabilitation or supervision

The 1995 and 1997 versions of section 921.0016(3)(p) allow a trial court to impose an upward departure if there is proof that a defendant is not amenable to rehabilitation or supervision as evidenced by an escalating pattern of criminal conduct. The trial court determined this factor was met because Morrison “continued to have improper contact with children following his release on probation.”

This was improper. “[F]actors related to violation of probation . . . cannot be used as grounds for departure.” Lambert v. State, 545 So. 2d 838, 842 (Fla. 1989); see also Lambe v. State, 53 So. 3d 1137, 1139 (Fla. 4th DCA 2011); Shores v. State, 15 So. 3d 697, 700 (Fla. 1st DCA 2009) (“There[] is . . . a prohibition against basing a

departure sentence on conduct occurring after a criminal offense, when resentencing for the offense after a probation violation.” (citing Lambert, 545 So. 2d at 842)). And “even recurrent criminal conduct—absent temporal proximity or escalation—does not justify upward departure.” Shores, 15 So. 3d at 700 (footnote omitted) (citing Barfield v. State, 594 So. 2d 259, 261 (Fla. 1992)).

The State concedes that there was no escalation in Morrison’s conduct. And, even as questionable as Morrison’s unsupervised contact with children might be, it was not a crime and could not provide the basis for an upward departure. See Lambert, 545 So. 2d at 842; Lambe, 53 So. 3d at 1139; Shores, 15 So. 3d at 700-01. The trial court erred by relying on this factor.

C. Insidious nature of the violation

This factor was one created by the trial court based on its determination that the departure criteria set forth in section 921.0016(3) was not intended to be exclusive.1 The trial court held that a departure was justified here because although

the fact that the sentence results from a violation of probation is already accounted for by the inclusion of

scoresheet points for “under restriction,” this fails to take into account the particularly insidious nature of the VOP, specifically that the Defendant again targeted an especially vulnerable victim under circumstances suggesting an

escalation of contact beginning with mere association to the child and escalating to improper e-mails, calls, and physical contact including kissing the child while at least partially secreted in a wood shop.

But as we have noted, the State concedes that there was no proof of an escalation in Morrison’s conduct. Typically, escalation is proven where there is “a progression from nonviolent to violent crimes, a progression of increasingly violent crimes, or a pattern of increasingly serious criminal activity.” § 921.001(8). Morrison’s conduct does not fall within any of those definitions. It is clear to this court then that the trial court was penalizing Morrison for his pattern of conduct which occurred after the criminal offense.

1The trial court was correct that the list of departure criteria set forth in sections 921.0016(3) and (4) is not intended to be exclusive.

This was improper. See Lambert, 545 So. 2d at 842; Lambe, 353 So. 3d at 1139; Shores, 15 So. 3d at 700-01.

Commission of 1997 offense while on pretrial release for 1995 offense

As the last stated reason for departure, the trial court found that an upward departure was appropriate because Morrison committed the 1997 offense while he was on pretrial release for the 1995 offense. The trial court found that this fact was “further proof that Defendant cannot control his behavior and is not amenable to rehabilitation.” The trial court noted that it did not make an oral pronouncement of this factor because it had been unaware of the pretrial release issue at the time of the VOP hearing. The State concedes error on the application of this factor, and we agree.

The fact that Morrison committed a new crime in close temporal proximity to the first crime is not enough—by itself—to justify a departure. See Barfield, 594 So. 2d at 261. There must be an escalation of conduct which is not present in this case. Consequently, the trial court erred by using this factor to justify an upward departure.

Application of legal status points

Morrison also challenges the application of legal status points on his scoresheet, arguing that his commission of the 1997 offense while on pretrial release for the 1995 offense does not qualify for purposes of the inclusion of legal status points.

“Legal status points are assessed at the time of sentencing if, at the time of the commission of the offense(s) for which [the defendant] is being sentenced, the defendant was under any form of legal status.” Lockhart v. State, 980 So. 2d 613, 615 (Fla. 4th DCA 2008) (citing § 921.0024(1)(b), Fla. Stat. (2006); Fla. R. Crim. P.

3.704(d)(15)). However, section 921.0011(3), which defines legal status, does not reference pretrial release. And other courts from this state have held that legal status points should not be applied in such a situation. See Annunziata v. State, 697 So. 2d 997, 998-99 (Fla. 5th DCA 1997) (noting that none of the legislative changes to section 921.0011(6) “indicates that the legislature ever intended to change the result obtained in the many cases where it was held that release on pre-trial [sic] bond was not a legal status”); Mize v. State, 495 So. 2d 845, 846 (Fla. 3d DCA 1986) (noting that Florida Rule of Criminal Procedure 3.701(d)(6) did not define legal status to include a situation where the defendant was on pretrial release). We agree with the Third and Fifth District Courts of Appeal, and we therefore hold that the commission of a crime while on pretrial release does not qualify a defendant for the inclusion of legal status points on a scoresheet.2 The trial court erred by applying these points to Morrison’s scoresheet.

III. Conclusion

We affirm the revocation of Morrison’s probation. But because there was insufficient evidence to support any of the factors relied on by the trial court in imposing upward departure sentences and because the legal status points were improperly imposed, we reverse the upward departure sentences and we remand for resentencing within the permissible guidelines range and for removal of the legal status points.

2We briefly note that at sentencing, defense counsel agreed with the trial court that the Department of Corrections’ sentencing guidelines manual indicated that the legal status points should be imposed. However, when reviewing the entire context of the discussion between the trial court and defense counsel, it becomes clear that they were discussing the commission of a new crime while a defendant was on probation. That is not how the legal status points were applied here. That discussion then cannot be viewed as a concession by defense counsel regarding the application of legal status points to the particular facts of this case.

Affirmed in part, reversed in part, and remanded.

WALLACE and BLACK, JJ., Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JASON LEE HAYWARD,

Appellant,

v.                             Case No. 2D09-5198

STATE OF FLORIDA,

Appellee.

Opinion filed April 20, 2011.

Appeal from the Circuit Court for Pinellas County; Thane Covert, Judge.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Chief Judge.

The State tried Jason Lee Hayward on a single count of felony driving under the influence for an offense allegedly committed in 2008. Mr. Hayward took the stand in his own defense and explained why he refused to take a breath alcohol test. The State argued, and the trial court agreed, that Mr. Hayward’s comments “opened the

door” to impeachment with evidence of a prior unrelated conviction for driving under the influence. Because Mr. Hayward’s comments did not open the door and there was no legal basis to introduce prior crime evidence, we reverse Mr. Hayward’s judgment and sentence and remand for a new trial.

When Mr. Hayward took the stand in his own defense, his counsel asked him why he refused the arresting officer’s requests that he take a breath alcohol test. He testified, “I’ve heard from people, and I’ve seen breath tests go wrong. You could have three Mountain Dews and blow a 0.01. I’ve seen it happen before, and—.” The State objected to Mr. Hayward’s reference to Mountain Dews, and the trial court struck that from the record. Later, the State sought to impeach Mr. Hayward’s comments with evidence regarding his 1992 DUI conviction, where he allegedly did take a breath test and the results were used against him. The defense objected, arguing that Mr. Hayward’s comments did not “open the door” to prior crime testimony and that the potential for undue prejudice outweighed the evidence’s minimal probative value. The

trial court allowed the questions over the defense’s objections, so the jury heard that Mr. Hayward was previously convicted for DUI.

Generally, evidence of unconnected crimes is inadmissible:

[I]it is generally harmful error “to admit evidence of other or collateral crimes independent of and unconnected with the crime for which the defendant is on trial.” Nickels v. State, 90 Fla. 659, 685, 106 So. 479, 488 (1925). As stated above, the reason for this rule, establishing the harmfulness of the error in admitting a certain class of irrelevant evidence, is:

Evidence that the defendant has committed a similar crime, or one equally heinous, will frequently prompt a more ready belief by the jury that he might have committed the one with which he is charged,

thereby predisposing the mind of the juror to believe

the prisoner guilty.

Id. at 685, 106 So. at 488.

Straight v. State, 397 So. 2d 903, 909 (Fla. 1981).

The Florida Evidence Code does provide an exception to this rule so that certain prior convictions can be admitted as impeachment evidence. Section 90.610, Florida Statutes (2008), titled “Conviction of certain crimes as impeachment,” provides that a party may attack the credibility of a witness with evidence that the witness has been convicted of a crime punishable by a year or more in prison or a crime involving dishonesty or false statement. § 90.610(1). But the State cannot ask about the specifics of the convictions unless the defendant is untruthful about whether he has such prior convictions and how many of them there are. Livingston v. State, 682 So. 2d 591, 592 (Fla. 2d DCA 1996).

In this case, the State did not ask Mr. Hayward whether he had prior qualifying convictions or how many. Instead, the prosecutor went straight to the details of the 1992 DUI conviction, claiming that Mr. Hayward’s testimony “opened the door” to testimony regarding the breath alcohol test associated with the 1992 conviction.

“Opening the door” is an evidentiary concept that

permits the admission of otherwise inadmissible testimony in order to qualify, explain, or limit previously admitted testimony or evidence. Overton v. State, 801 So. 2d 877, 900 (Fla. 2001). The normally inadmissible evidence is

allowed when fairness and the search for the truth require a fuller explication of evidence that otherwise would have been incomplete and misleading. Hudson v. State, 992 So. 2d 96, 110 (Fla. 2008). Thus, a party “opens the door” when it

elicits misleading testimony or makes a factual assertion that the opposing party has a right to correct so that the jury will not be misled. Robertson [v. State], 829 So. 2d [901,] 913 [(Fla. 2002)]. For example, a defendant’s evidence of his good character may open the door to impeachment with

evidence of the defendant’s bad character. Robertson, 829 So. 2d at 912.

Austin v. State, 48 So. 3d 1025, 1025 (Fla. 2d DCA 2010). In other words,

The concept of “opening the door” permits admission of inadmissible evidence for the purpose of qualifying, explaining or limiting testimony previously admitted. See Hudson v. State, 992 So. 2d 96, 110 (Fla. 2008), cert. denied, 129 S. Ct. 1360 (2009). This concept is based on considerations of fairness where “redirect examination reveals the ‘whole story of a transaction only partly explained’ in cross examination.” Love v. State, 971 So. 2d 280, 286 (Fla. 4th DCA 2008) (quoting Bozeman v. State, 698 So. 2d 629, 631 (Fla. 4th DCA 1997)).

Sinclair v. State, 50 So. 3d 1223, 1226 (Fla. 4th DCA 2011).

After the trial court’s ruling striking a portion of Mr. Hayward’s testimony regarding breath test results, what remained in response to his counsel’s inquiry asking why he refused the breath test was “I’ve heard from people, and I’ve seen breath tests go wrong.” Mr. Hayward’s testimony, at that point, did not “open the door” to questions regarding the details of his 1992 DUI conviction. He did not place the nature of his prior felony at issue. See, e.g., McCrae v. State, 395 So. 2d 1145, 1152 (Fla. 1980) (holding that prosecution was allowed to ask about details of defendant’s prior conviction because defendant’s testimony, without clarification through questions by the State, “could have deluded the jury into equating appellant’s conviction of assault with intent to commit murder with his previous misdemeanors”); Burst v. State, 836 So. 2d 1107, 1109 (Fla. 3d DCA 2003) (holding that defendant opened the door to cross-examination about the nature of two prior convictions when he volunteered, during questioning by his own counsel, that he had two prior convictions for possession and two prior convictions for grand theft but, in actuality, one of the possession convictions was for possession

with intent to sell and one of the grand theft convictions was for grand theft auto). Essentially, Mr. Hayward’s testimony was that he did not trust breath testing machines. The statement was not misleading or incomplete, nor was it a small part of a story that required further explanation in consideration of fairness to both sides. He only provided his subjective state of mind, his opinion or his belief of the equipment’s unreliability.

Even had Mr. Hayward’s limited testimony “opened the door,” the potential for undue prejudice far exceeded the probative value of the testimony. See § 90.403, Fla. Stat. (2008) (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice”). The issue of Mr. Hayward’s refusal to take a breath test was minimally relevant at best. Informing the jury that Mr. Hayward had previously been convicted of the exact crime he was on trial for was extremely prejudicial. Consequently, the trial court also abused its discretion by failing to exclude the evidence on the basis that the potential for unfair prejudice outweighed its minimal probative value. See Straight, 397 So. 2d at 909.

Finally, the State contends that even if the admission of this testimony was error, it was harmless. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). However, the State cannot prove “that there is no reasonable possibility that the error contributed to the conviction.” Id. At trial, the State’s evidence consisted of testimony from the arresting officer and a video of limited evidentiary value from the officer’s dashboard camera. The jury’s verdict rested largely upon weighing the credibility of the officer and Mr. Hayward. The improperly admitted evidence of Mr. Hayward’s prior DUI conviction gave the State, through the officer’s testimony, an unfair advantage in that credibility contest.

For these reasons, we reverse Mr. Hayward’s conviction and sentence for driving under the influence and remand for a new trial.

SILBERMAN, J., Concurs. WHATLEY, J., Dissents with opinion.

WHATLEY, Judge, Dissenting.

I respectfully dissent. Hayward testified in his own defense as to why he refused a breath test. His statement that “I’ve heard from people and I’ve seen such breath tests go wrong,” opened the door to cross-examination. As noted by the majority opinion, this court has held:

“Opening the door” is an evidentiary concept that permits the admission of otherwise inadmissible testimony in order to qualify, explain, or limit previously admitted testimony or evidence. Overton v. State, 801 So. 2d 877, 900 (Fla.

2001). The normally inadmissible evidence is allowed when fairness and the search for the truth require a fuller explication of evidence that otherwise would have been

incomplete and misleading. Hudson v. State, 992 So. 2d 96, 110 (Fla. 2008).

Austin, 48 So. 3d at 1025.

A number of other Florida cases address this very point. In C.M. v. State, 698 So. 2d 1306, 1307 (Fla. 4th DCA 1997), an officer testified that when he arrived on the scene to investigate an attempted robbery, C.M. fled. C.M. tried to diminish the officer’s testimony by testifying that he fled to avoid a truancy arrest. Id. The Fourth District held that evidence that C.M. ran after seeing police was probative of his guilty mind and therefore, “[o]n rebuttal, the state was entitled to nullify C.M.’s explanation for

his flight by showing that 15 minutes earlier he had encountered the same officer without incident.” Id. at 1307.

In Butler v. State, 842 So. 2d 817, 826-27 (Fla. 2003), Butler testified that he and the victim had consensual sex shortly before she was murdered. He further gave the impression they had a good relationship, and he would never hurt her. In response to Butler’s allegation that he would never hurt the victim, the State was allowed in cross-examination to inquire about an incident four years earlier where Butler had choked the victim. The Butler court held that this cross-examination was permissible to explain or modify Butler’s testimony during direct examination. Id. at 827. The court noted that when a defendant testifies in court, “his credibility may be impeached in the same manner as any other witness” and that such impeachment may involve prior acts of misconduct. Id.; see Ashcroft v. State, 465 So. 2d 1374, 1375 (Fla. 2d DCA 1985) (holding that Ashcroft “opened the door” to questions about a prior conviction for rape, after he gave misleading testimony that he had never hurt anyone).

In a case with similar facts to the present one, the appellant claimed that he refused to take a breath test because he was unfamiliar with the terms of the implied consent warning and he had never before heard them. Long v. State, 363 S.E. 3d 807, 808 (Ga. Ct. App. 1987). The court held that it was proper to impeach the appellant with evidence that he had been previously arrested twice for DUI and had been given both a urine test and a breath test. Id.

A suspect’s refusal to submit to a breath alcohol test is admissible in evidence at a trial for driving under the influence because it is relevant to show the suspect’s consciousness of guilt. See South Dakota v. Neville, 459 U.S. 553, 565

(1983) (holding that it was permissible for state to use appellee’s refusal to take blood-alcohol test as evidence of guilt in trial for driving under the influence); State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995) (holding that appellee’s refusal to take field sobriety tests was “relevant to show consciousness of guilt”); Kurecka v. State, 35 Fla. L. Weekly D2162, 2166 (Fla. 4th DCA Sept. 29, 2010) (noting that where State introduces evidence of defendant’s refusal to take breath test as consciousness of guilt, the defendant can introduce evidence of circumstances surrounding refusal). Here, Hayward testified that the reason he did not want to take a breath alcohol test was because he had “heard from people, and I’ve seen breath tests go wrong.” I disagree with the majority that this testimony was not misleading or incomplete. It misled the jury because the testimony inferred that the only reason Hayward did not want to take the test was because he had heard the test was not reliable. Therefore, the State was correctly allowed to “qualify, explain, or limit” the testimony by showing that the reason Hayward did not want to take the breath alcohol test was because he had taken the test before and, as a result of the test, he was convicted of DUI. See Austin, 48 So. 3d at 1025.

I believe that Hayward “opened the door” by choosing to testify to a self-serving misleading version of why he refused the breath test. Questions about his prior DUI arrest where he had taken a breathalyzer and had been convicted were perfectly appropriate in a search for the truth.

Courtesy of David Edelstein

Bookmark It

Hide Sites

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

DANA ALAN PEVEY,

Appellant,

v.                               Case No. 2D10-3963

STATE OF FLORIDA,

Appellee.

Opinion filed April 20, 2011.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; John K. Stargel,

Judge.

Dana Alan Pevey, pro se.

WHATLEY, Judge.

Dana Alan Pevey appeals the order granting in part and denying in part his motion pursuant to Florida Rule of Criminal Procedure 3.800(a) seeking proper credit for time served. The postconviction court determined that Pevey was entitled to five more days credit than he had received, and it awarded him those five additional days on count one only. Consequently, the court denied Pevey’s assertion that the sentencing court had orally pronounced that he would receive credit against both counts of his consecutive sentences. The record before us does not contain the sentencing

transcript, and it was not attached to either Pevey’s motion or the court’s order. Accordingly, we remand for the postconviction court to determine whether the transcript is in the record. If it is, the court shall either grant Pevey’s motion or deny it and attach the portions of the record refuting Pevey’s claim. If the transcript is not in the record, the court shall deny Pevey’s motion without prejudice to him filing an amended motion with the relevant portion of the transcript attached. See Beard v. State, 27 So. 3d 186, 187- 88 (Fla. 5th DCA 2010) (citing Williams v. State, 957 So. 2d 600, 604 (Fla. 2007)).

Remanded with directions.

KELLY and LaROSE, JJ., Concur.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Third District Court of Appeal

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

Opinion filed April 20, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D09-587

Lower Tribunal No. 79-6064

Mario Emilio Fernandez-Balart,

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, Marisa Tinkler Mendez, Judge.

Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region, and Dan Hallenberg, Assistant Regional Counsel, for appellant.

Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before WELLS, ROTHENBERG, and EMAS, JJ. WELLS, Judge.

Mario Fernandez-Balart appeals from an order denying his Florida Rule of Criminal Procedure 3.850 motion to vacate a plea brought within the window provided by State v. Green, 944 So. 2d 208 (Fla. 2006), claiming that his 1979 plea, judgment and sentence must be set aside because of misadvice of counsel as to the immigration consequences of that plea. Because we find the trial court’s order denying Fernandez-Balart’s motion fully supported by competent, substantial evidence, we affirm. We do so, however, without prejudice to Fernandez-Balart’s right to file a new motion asserting any claim which he might have under Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

Courtesy of David Edelstein

Bookmark It

Hide Sites

Third District Court of Appeal

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

Opinion filed April 20, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D09-1139

Lower Tribunal No. 05-15081

William Cruz,

Appellant,

vs.

State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Julio Jimenez,

Judge.

Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

Before LAGOA and SALTER, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

William Cruz appeals his conviction and sentence for attempted second

degree murder. We reverse the conviction on each of two independently-sufficient grounds. First, the attempted voluntary manslaughter instruction, as given to the jury, violates the holding in State v. Montgomery, 39 So. 3d 252 (Fla. 2010).

Second, we find that Cruz’s second demand to represent himself was unequivocally made, necessitating a Faretta1 hearing. Rodriguez v. State, 982 So. 2d 1272 (Fla. 3d DCA 2008). Because such a hearing was not conducted before the trial court denied Cruz’s demand, a reversal on this ground is also required.

Reversed and remanded.

1 Faretta v. California, 422 U.S. 806 (1975).

Courtesy of David Edelstein

Bookmark It

Hide Sites

Third District Court of Appeal

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

Opinion filed April 20, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D09-1437

Lower Tribunal No. 02-7129

Joaquin Duarte,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Julio Jimenez,

Judge.

Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.

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

PER CURIAM.

Joaquin Duarte appeals his final judgment of conviction and sentence. He asserts on appeal that the trial court erred when it instructed the jury, over defense

objection, that he could be found guilty of armed burglary where the information failed to allege that he was armed, but instead alleged that he discharged a firearm. He relies upon State v. Rodriguez, 602 So. 2d 1270, 1272 (Fla. 1992), for the proposition that the failure of the State to properly charge him precludes it from enhancing his sentence. We conclude that the allegation that Duarte discharged a firearm provided a sufficient basis for the trial court’s instruction for armed burglary and a proper basis for enhancement, and therefore affirm.

The State charged Duarte in a thirteen-count information. The front page of the information contains a listing of each individual count, together with a reference to the relevant statutory provisions. Count thirteen is described on the front page as: “13. BURGLARY/ARMED 810.02(2)(b) & 775.087 Fl.” In the body of the information, count thirteen alleges that Duarte:

did unlawfully enter or remain in a conveyance, to wit: an automobile, the property of ANTON FORBES and/or CITY OF MIAMI, without the consent of ANTON FORBES and/or CITY OF MIAMI as owner or custodian, the defendant having an intent to commit an offense therein, to wit: THEFT, and during the course of the commission of the offense, said defendant discharged a firearm or destructive device, in violation of s. 810.02(2)(b) and s. 775.087 Florida Statutes . . . .

(Emphasis supplied.)

Section 810.02(2)(b), Florida Statutes (2010), provides in pertinent part:

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084 if, in the course of committing the offense, the offender:

Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon;

At its core, a charging document must comport with basic notions of due process by placing a defendant on adequate notice of the specific nature of the criminal charge. See Cole v. Ark., 333 U.S. 196 (1948); Fulcher v. State, 766 So. 2d 243 (Fla. 4th DCA 2000). Procedurally, a defendant may seek dismissal of a charging document that fails to fulfill this requirement. Florida Rules of Criminal Procedure 3.190(c) (2010), provides:

Time for Moving to Dismiss. Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. . . . Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived.

This must be read in conjunction with rule 3.140(o), which provides:

(o) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information . . . . unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after

conviction or acquittal to substantial danger of a new prosecution for the same offense.

These provisions serve to discourage defendants from waiting until after a trial is over (or after the close of the evidence) before contesting deficiencies in a charging document which could have easily been corrected if they had been raised before trial. See DuBoise v. State, 520 So. 2d 260, 264 (Fla. 1988).

Duarte did not file a motion to dismiss count thirteen as legally insufficient, or otherwise contest its legal sufficiency, until after the close of all the evidence, and after the trial court heard and denied the motion for judgment of acquittal. The issue was raised for the first time during the charge conference, where Duarte objected to the court’s instruction to the jury on that portion of the standard burglary instruction that directs the jury to consider aggravating circumstances (e.g., that the defendant was armed).1 Duarte’s failure to file a pretrial motion to dismiss constitutes a waiver of such a defect, unless the objection is based on

1 The jury was instructed in relevant part:

The punishment provided by law for the crime of burglary is greater if the burglary was committed under certain aggravating circumstances. Therefore, if you find the defendant guilty of burglary, you must then consider whether the State has further proved those circumstances. If you find that in the course of committing the burglary the defendant was armed, or armed himself within the conveyance with a firearm, you should find him guilty of burglary while armed.

Fla. Std. Jury Instr. (Crim.) 13.1.

fundamental grounds or the information is “so vague, indistinct, and indefinite as to embarrass him . . . in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.” See Fla. R. Crim. Procedure 3.190(c) and 3.140(o); Mesa v. State, 632 So. 2d 1094 (Fla. 3d DCA 1994).

Duarte did not claim below, nor does he claim in this appeal, that the information was so vague, indistinct or indefinite as to embarrass him in the preparation of his defense or expose him to a substantial danger of a new prosecution for the same offense. Nor does Duarte expressly assert that his objection is based upon fundamental grounds. Instead, Duarte contends that the trial court erred when it instructed the jury on a charge of armed burglary, because the information did not allege that he was armed with a dangerous weapon during the commission of the burglary, but instead alleged only that he discharged a firearm2 in the course of committing the burglary.

Duarte argues that the information thus did not charge an armed burglary. This argument is without merit. Taken together, the description on the front page of the information (“13. BURGLARY/ARMED 810.02(2)(b) & 775.087”); the allegation that, in the course of committing the burglary, Duarte “discharged a

2 The allegation of “discharged a firearm” was required for the defendant to be eligible for a 20-year mandatory minimum sentence under the “10/20/Life” statute. See § 775.087(2)(a)2, Fla. Stat. (2010).

firearm”; and the statutory reference to section 810.02(2)(b) within the body of count thirteen, sufficiently alleged that, in the course of committing the burglary, Duarte was or became armed with a dangerous weapon. Coke v. State, 955 So. 2d 1216, 1217 (Fla. 4th DCA 2007) (information charging aggravated battery that made specific reference to enhancement statute and alleged that defendant “shot victim in the legs” sufficiently alleged the element of “great bodily harm” allowing for enhancement of sentence); State v. Burnette, 881 So. 2d 693, 695 (Fla. 1st DCA 2004) (an information may withstand an untimely challenge to a technical deficiency where a statutory citation for the crime is given, but all elements are not properly charged, or where the wrong or no statutory citation is given, but all elements of the crime are properly charged).

Affirmed.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Third District Court of Appeal

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

Opinion filed April 20, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D09-2902

Lower Tribunal No. 08-3192

B.C., a juvenile,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marcia Caballero, Judge.

Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.

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

Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge. SCHWARTZ, Senior Judge.

The adjudication below for possession of marijuana is affirmed. We conclude that the disputed search of B.C.’s person which revealed the contraband was properly conducted incident to arrest based upon probable cause that, as a passenger in a vehicle which was the site of a drug transaction observed by a fellow officer, had committed a felony offense. See Maryland v. Pringle, 504 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003); see also Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009); see also State v. Bagley, 844 So. 2d 688, 690 (Fla. 3d DCA 2003) (“The fellow officer rule allows an arresting officer to assume probable cause to arrest a suspect from information supplied by other officers.” (quoting Voorhees v. State, 699 So. 2d 602, 609 (Fla. 1997))).

Affirmed.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Third District Court of Appeal

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

Opinion filed April 20, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D09-3380

Lower Tribunal No. 08-13586-A

Terrell McKay,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from a final order from the Circuit Court for Miami-Dade County, Marisa Tinkler-Mendez, Judge.

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

Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.

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

RAMIREZ, C.J.

Terrell McKay appeals his judgment of conviction and sentence, arguing that he should receive a new trial because the trial court committed error when it

denied his motion to strike a juror for cause and subsequent request for an additional peremptory challenge. We reverse because the trial court abused its discretion when it denied McKay’s request to strike a juror for cause.

The State of Florida filed an information charging McKay with the sale of cocaine within one thousand feet of a school zone. During the jury selection process, defense counsel moved to strike a prospective juror, A.F. (number fifteen in the venire), for cause arguing that this juror would hold it against the defense if McKay did not testify. During the initial colloquy, the following exchange took place.

MR. KRYPEL: Mr. [A.F.]?

PROSPECTIVE JUROR A.F.: Yes.

MR. KRYPEL: You are saying you want to hear from Mr. Terrell McKay?

PROSPECTIVE JUROR A.F.: Yes.

MR. KRYPEL: If you don’t hear from Mr. Terrell McKay, you are going to be thinking what is that guy hiding? You know a bad answer is a false answer.

PROSPECTIVE JUROR A.F.: I understand that and I would rather speak in privately. I don’t want it to affect the jury. That is the only reason.

Outside of the presence of the other jurors, the following exchange

took place:

PROSPECTIVE JUROR A.F.: Just the answer to the question counsel asked. The reason why I said I didn’t want to explain wasn’t only because as an attorney I have worked in the past – - not criminal law, but administrative law. It is almost the government versus an individual. So just as a philosophical versus an individual. So just as a philosophical point as an attorney, the way I would advise my client in this situation, tell me the truth and we will work from there. And I understand counsel. They may have their reason why and strategically and everything else, “Just take the offer.”

My concern is if counsel for whatever reason does not want his client to testify and State presents the evidence and it is credible, then I am going to be more inclined to basically convict and that is what I want to say. I didn’t want to say it in front of the jury because I didn’t want somebody to sit there, “If he is an attorney, then he must know something,” and that is why I asked for the privacy.

THE COURT: We appreciate it.

The question is when you say credible, is that different than proof to the exclusion of every reasonable doubt, if the State doesn’t meet their burden?

PROSPECTIVE JUROR A.F.: If the State doesn’t meet their burden?

THE COURT: What is the verdict? PROSECTIVE JUROR A.F.: Innocent. THE COURT: Not guilty?

PROSPECTIVE JUROR A.F.: Not guilty because the State did not meet their burden.

THE COURT: Would it matter to you at all whether or not Mr. McKay decided to testify? Is there an issue?

PROSPECTIVE JUROR A.F.: It is not necessarily – - it is not necessarily an issue, but as I said my only concern is if the State presents the case.

THE COURT: And they meet – -

PROSPECTIVE JUROR A.F.: And they meet their burden and I didn’t hear anything from Mr. McKay’s side?

THE COURT: Let me ask you this.

His lawyer is going to ask questions of the State’s witness.

PROSPECTIVE JUROR A.F.: Okay.

THE COURT: What you are telling me, if you are not convinced beyond and to the exclusion of every reasonable doubt, that it would still be an issue for you as to why Mr. McKay – -

PROSPECTIVE JUROR A.F.: No. THE COURT – - didn’t testify?

PROSPECTIVE JUROR A.F.: It would not be an issue, but I just wanted to give that opportunity to present that. I thought it was something that both sides should know. I will if both sides – - we would like to be part of the jury. I will do my best.

THE COURT: I appreciate your candor and your openness. In the context of an administration while commenting that it was somewhat similar and you want your clients to make full disclosure.

From a practitioner’s point of view, from procedural and administrative procedure it is far different than criminal proceedings. You are talking about it in terms of your own practice and what would be your normal practice.

PROSPECTIVE JUROR A.F.: Exactly. Any follow-up questions?

MR. NIXON: Nothing from the State.

MR. PONT: I am still confused.

THE COURT: They thought it was pretty clear.

MR. PONT: Bottom line, are you still going to be affected if you are chosen as a juror in this case if the defendant does not testify? It sounds like you may be affected.

PROSPECTIVE JUROR A.F.: I think it is only – - this is just being the lawyer part of me. But for all consideration if the State presents their evidence and I find – - hypothetically speaking, I find the evidence to be credible and yet despite cross examination I don’t hear from counsel and from your client, then that is going to sway me to the direction to the State’s burden. This is the way I am speaking hypothetically.

MR. PONT: All right.

Thank you for that hypothetical answer.

(emphasis added). The trial judge denied defense counsel’s request to strike juror A.F. for cause. Defense counsel thereafter used a peremptory challenge on juror A.F.

Defense counsel ultimately exhausted all of his peremptory challenges. He then requested an additional challenge against another juror which the trial court

granted, stating that the court would “allow one and only one.”

Thereafter, defense counsel renewed his request for one more peremptory challenge based upon the denial of defense challenges for cause directed at A.F. and others, including juror eleven. The trial court denied this request. Defense counsel advised the court that if he had been allowed the additional peremptory, he would have exercised it to strike juror eleven.

At the conclusion of jury selection, the defense reserved its objection before the jury was sworn. The jury ultimately found McKay guilty as charged.

We now turn to defense counsel’s initial request to strike juror A.F. for cause. The standard of review of a trial court’s decision to deny a challenge for cause is whether the court abused its discretion. See Pentecost v. State, 545 So. 2d 861, 862-63 (Fla. 1989); Leon v. State, 396 So. 2d 203, 205 (Fla. 3d DCA 1981). Absent manifest error, a determination of whether a challenged juror is competent will not be disturbed. See Puiatti v. Dugger, 589 So. 2d 231 (Fla. 1991); Miller v. State, 934 So. 2d 580, 581 (Fla. 3d DCA 2006); Hall v. State, 682 So. 2d 208, 209 (Fla. 3d DCA 1996). There is manifest error when a juror responds with equivocal or conditional answers that thereby raise a reasonable doubt as to whether the juror possesses the requisite state of mind necessary to render an impartial decision. See Salgado v. State, 829 So. 2d 342, 344 (Fla. 3d DCA 2002).

Based upon the totality of juror A.F.’s responses, we must conclude that the statements clearly established a reasonable doubt as to whether he could render an impartial decision. Juror A.F. initially stated that he wanted to hear from McKay and requested to speak in private so that his comments would not affect the jury. Outside the presence of the jury, he unequivocally stated that if the State presented credible evidence and McKay did not testify, he would “be more inclined to basically convict.” This statement is entirely at odds with a defendant’s presumption of innocence and right to remain silent at trial, two of the most basic tenents at the heart of our system of justice. It served to create a reasonable doubt as to whether this juror could be impartial. If a prospective juror’s statements raise reasonable doubts as to that juror’s ability to render an impartial verdict, the juror should be excused. See Turner v. State, 645 So. 2d 444, 447 (Fla. 1994). Juror A.F. thus should have been excused.

The State argues that the trial court did not abuse its discretion, that manifest error did not occur, and that the judge, from her vantage point at the trial court level, correctly determined that there was no doubt that juror A.F. was fit to serve as a juror. We disagree.

None of the statements juror A.F. made following his initial comments served to erase the reasonable doubt his answers gave as to whether he could render an impartial verdict if the State presented credible evidence and McKay

failed to testify. Juror A.F. indeed noted that he would consider the evidence and that, unless the State proved that a defendant was guilty, the defendant would be innocent. He further stated that: he was an attorney, a defendant is not guilty if the State failed to meet its burden, and that he would “do his best” as a juror.

Furthermore, any attempt to rehabilitate juror A.F. were unsuccessful. At no time did juror A.F. state that, if the State satisfied its burden, he would not hold it against the defense if McKay did not testify. He instead clearly stated that if he found the State’s evidence to be credible, despite cross-examination, and he did not hear from McKay, he would be swayed toward “the direction [of] the State’s burden.” This response, given at the conclusion of the exchange that occurred outside of the presence of the jury, sufficiently placed doubt upon this juror’s ability to be an impartial juror, notwithstanding any attempt at rehabilitation. Because the impartiality of jurors is critical to the operation of the justice system, “[c]lose cases should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality.” See Sydleman v. Benson, 463 So. 2d 533 (Fla. 4th DCA 1985); Price v. State, 538 So. 2d 486, 489 (Fla. 3d DCA 1989).

Therefore, we reverse McKay’s judgment of conviction and sentence, and remand for a new trial.

Courtesy of David Edelstein

Bookmark It

Hide Sites

Third District Court of Appeal

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

Opinion filed April 20, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D11-505

Lower Tribunal No. 88-43713

Jonathan Simmons,

Appellant,

vs.

State of Florida,

Appellee.

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

Jonathan Simmons, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before RAMIREZ, C.J., and GERSTEN and EMAS, JJ.

EMAS, J.

The defendant, Jonathan Simmons, appeals the trial court’s order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We note that, between 2004 and 2010, Simmons has filed five appeals of orders denying motions for collateral relief. In four of those five appeals, Simmons raised the exact same issue raised in the instant appeal.1 In each instance, the trial court denied relief, and in each instance the order denying relief was affirmed by this Court. As we have done previously, we affirm the trial court’s order in all respects.

Simmons has engaged in the filing of meritless, frivolous and successive claims, and continues to seek relief from the trial court and this Court notwithstanding the repeated adverse determination of the claim on its merits. Simmons’ actions have caused this Court to expend precious judicial resources which could otherwise be devoted to cases raising meritorious claims. Hedrick v. State, 6 So. 3d 688, 691 (Fla. 4th DCA 2010) (“A legitimate claim that may merit

1 Simmons v. McNeil, 21 So. 3d 827 (Fla. 3d DCA 2009); Simmons v. State, 17 So. 3d 300 (Fla. 3d DCA 2009); Simmons v. State, 951 So. 2d 849 (Fla. 3d DCA 2007); Simmons v. State, 931 So. 2d 918 (Fla. 3d DCA 2006). In Simmons v. State, 888 So. 2d 710 (Fla. 3d DCA 2004), Simmons’ motion to correct illegal sentence raised a separate issue. Additionally, Simmons filed a motion for postconviction relief in 1993 and again in 1994, raising the same sentencing issue presented here. Both motions were denied and affirmed on appeal. Simmons v. State, 650 So. 2d 126 (Fla. 3d DCA 1995); Simmons v. State, 645 So. 2d 477 (Fla. 3d DCA 1994).

relief is more likely to be overlooked if buried within a forest of frivolous claims.”).

We acknowledge that pro se parties must be afforded a genuine and adequate opportunity to exercise their constitutional right of access to the courts.2 However, that right is not unfettered. Although termination of the right to proceed pro se undoubtedly will impose a burden on a litigant who may be unable to afford counsel, the courts must strike a balance between the pro se litigant’s right to participate in the judicial process and the courts’ authority to protect the judicial process from abuse.

The right to proceed pro se may be forfeited where it is determined, after proper notice and an opportunity to be heard, that the party has abused the judicial process by the continued filing of successive or meritless collateral claims in a criminal proceeding. State v. Spencer, 751 So. 2d 47 (Fla.1999); see also Illinois v. Allen, 397 U.S. 337, 343 (1970) (“It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.”). As

2 Art. I, § 21, Fla. Const. (“The courts shall be open to every person for redress of any injury. . .”)

our sister court has aptly described it, there comes a point when “enough is enough.” Isley v. State, 652 So. 2d 409, 410 (Fla. 5th DCA 1995).

The defendant, Jonathan Simmons, is hereby directed to show cause, within thirty days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions both here and in the lower court relating to his convictions, judgments and sentences in circuit court case number 88-43713. Absent a showing of good cause, we intend to direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to this circuit court case number unless it has been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Additionally, and absent a showing of good cause, any such further and unauthorized pro se filings by this defendant will subject him to appropriate sanctions, Spencer, 751 So. 2d at 49, and a recommendation to the Florida Department of Corrections that the Department take disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2010).

Affirmed.

Courtesy of David Edelstein

Bookmark It

Hide Sites

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

JOSE RAFAEL GARCIA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-2071

[April 20, 2011]

DAMOORGIAN, J.

Defendant, Jose Rafael Garcia, appeals his judgment and sentence for two counts of sexual battery on a person less than twelve years of age and one count of tampering with a witness, raising several issues for our consideration. We affirm Garcia’s judgment and sentence and write only to address his argument that the trial court erred in denying his motion to suppress his confession.

In 1996, the victim, seven years old at the time, complained to her mother that she was experiencing pain in her private area. As a result, the victim’s mother took her to seek medical treatment. During her examination, the doctor observed that the victim had contracted a sexually transmitted disease and had suffered physical trauma to the affected area. The victim told the doctor that it was the defendant who caused her injuries. After discovering the abuse, the doctor contacted the police and child protective services.

Garcia’s initial contact with the police took place outside the doctor’s office. At that point, a detective identified himself and asked to speak to Garcia. Garcia was read his Miranda1 rights and was advised that the conversation was recorded. After Garcia denied molesting the victim, the detective handcuffed Garcia. A discussion ensued between the detective and Garcia during which the detective made the following statements:

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

[Detective]: Now, I think that you might have been lying to me because you want to avoid going to jail but now that you see that you are under arrest, maybe it’s time for you to admit that you have a problem or show some remorse because right now, you are showing no remorse, okay? You know what it means? You know.

. . .

[Detective]: . . . I don’t want you to confess because we have handcuffs on you. All I’m trying to tell you is right now it’s your chance to say you made a mistake. If you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal.

. . .

[Detective]: Oh, no, no, okay. (Inaudible) not accidental. No, I am going to turn off this tape unless you want to say something else.

You want to say something before I turn off this tape because a Judge might be listening to us, a jury, this is your chance to explain to the jury maybe that you are sorry, you made a mistake, that you are not a criminal, all you need is help (inaudible) so you don’t want to touch [the victim] any more. You want to say that (inaudible).

During this initial conversation Garcia admitted to molesting the victim. Garcia was then transported to the police station. While being transported, Garcia stated that he was ashamed of what he did and that the victim was telling the truth. While at the police station, Garcia was read his Miranda rights a second time and again admitted to molesting the victim. Garcia sought to suppress his confession which the trial court denied after concluding that Garcia’s statements were voluntary.

On appeal, Garcia argues that the following statement made by the detective was an implied promise of leniency that rendered all of his subsequent confessions involuntary: “[a]ll I’m trying to tell you is right now it’s your chance to say you made a mistake. If you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal.”

“[A] trial court’s ruling on the voluntariness of a waiver of Miranda rights will not be reversed o n appeal unless the ruling is clearly

erroneous.” Brookins v. State, 704 So. 2d 576, 577-78 (Fla. 1st DCA 1997) (citing Thompson v. State, 548 So. 2d 198 (Fla. 1989)).

In order for a confession to be admissible into evidence, it must be voluntary. Edwards v. State, 793 So. 2d 1044, 1047 (Fla. 4th DCA 2001). The government must prove voluntariness by a preponderance of the evidence. U.S. v. Leon Guerrero, 847 F.2d 1363, 1365 (9th Cir. 1988). “The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect’s will was overborne.” Id. at 1366. “The constitution does not bar the use . . . of any statements that could be construed as a threat or promise, but only those which constitute outrageous behavior and which in fact induce a confession.” Nelson v. State, 688 So. 2d 971, 974 (Fla. 4th DCA 1997). There must also be a causal nexus between the improper conduct or questioning and the confession. Id. A confession is not involuntary if officers do nothing more than “encourage or request that person to tell the truth.” Chambers v. State, 965 So. 2d 376, 378 (Fla. 4th DCA 2007).

We do not reach the question of whether the detective’s promise was “outrageous,” because the detective’s statements do not constitute or suggest a promise of leniency. The detective’s statement that “[i]f you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal,” was merely moral urging. “Encourag[ing] or request[ing] [a] person to tell the truth” does not result in an involuntary confession. Id. at 378.

In McNamee v. State, 906 So. 2d 1171 (Fla. 4th DCA 2005), a detective questioning a juvenile elicited a confession from the defendant after reading a Bible passage and telling the defendant “the truth shall set you free.” Id. at 1175. This Court held that there was “no improper conduct on the part of law enforcement” and that the record did not support the claim that “law enforcement’s religious references improperly coerced the defendant’s confession.” Likewise, here, the detective did not engage in improper conduct because he merely encouraged Garcia to confess.

Affirmed.

MAY and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey Colbath, Judge; L.T. Case No. 96CF013007AMB.

Carey Haughwout, Public Defender, and James W. McIntire, 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.

Courtesy of David Edelstein

Bookmark It

Hide Sites