Florida Criminal Law Opinions

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

CALVIN EARL SUGGS, JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D08-2913 [May 25, 2011]

GERBER, J.

A jury convicted the defendant of four counts of “written threat to kill or do bodily injury” for sending two letters, each of which threatened the same two persons. The defendant argues that his convictions violate the double jeopardy clause.1 More specifically, he argues that the “allowable unit of prosecution” for the charge should be the number of letters or communications sent, and not the number of people to whom each letter or communication is sent.2 We disagree. We hold that the allowable unit of prosecution is the number of persons to whom each letter or communication is sent, and not the number of letters or communications sent. Therefore, we affirm.

The defendant sent the two letters to Karen Robertson and Hope Suggs. Karen has legal custody of all five of the defendant’s sons. Hope is the defendant’s ex-wife and the mother of four of the defendant’s sons. Hope lives part-time with Karen. Both letters contained statements which could be interpreted as threats to kill or do bodily injury to Karen and Hope.

1 See U.S. CONST., Amend. V (“No person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb.”).

2 The “allowable unit of prosecution” is “the aspect of criminal activity that the Legislature intended to punish.” Mauldin v. State, 9 So. 3d 25, 28 (Fla. 4th DCA 2009) (citation omitted). “Double jeopardy is not violated if the legislature intended separate punishments.” Id.

 

Based on the letters, the state charged the defendant with violating section 836.10, Florida Statutes (2004), entitled “Written threats to kill or do bodily injury; punishment.” That statute provides, in pertinent part:

If any person writes or composes and also sends or procures the sending of any letter or inscribed communication, so written or composed, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent, the person so writing or composing and so sending or procuring the sending of such letter or communication, shall be guilty of a felony of the second degree . . . .

§ 836.10, Fla. Stat. (2004).3 As noted in State v. Wise, 664 So. 2d 1028, 1030 (Fla. 2d DCA 1995), “[a] violation of this statute occurs when: (1) a person writes or composes a threat to kill or do bodily injury; (2) the person sends or procures the sending of that communication to another person; and (3) the threat is to the recipient of the communication or a member of his family.” (citation omitted).

Although the defendant sent only two letters, the state charged the defendant’s alleged violation of section 836.10 in four counts: sending the first letter to Karen; sending the first letter to Hope; sending the second letter to Karen; and sending the second letter to Hope.

The jury found the defendant guilty of all four counts. This appeal followed, raising the double jeopardy argument for the first time. We

3 In 2010, the legislature amended section 836.10 as follows:

If aAny person who writes or composes and also sends or procures the sending of any letter, or inscribed communication, so written or composed or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent, the person so writing or composing and so sending or procuring the sending of such letter or communication, shall be guilty of commits a felony of the second degree . . . .

Ch. 2010-51, § 1, Laws of Fla.

 

have jurisdiction to consider the argument. See Latos v. State, 39 So. 3d 511, 513 (Fla. 4th DCA 2010) (“A double jeopardy violation ‘is a fundamental error which can be raised for the first time on appeal.’”) (citation omitted). Our review is de novo. See id. (“‘Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo.’”) (citation omitted).

The defendant argues that his convictions violate the double jeopardy clause because, in his view, the allowable unit of prosecution for a violation of section 836.10 should b e th e number of letters or communications sent, and not the number of people to whom each letter or communication is sent. To support this argument, the defendant relies on the “a/any” test which our supreme court approved in Grappin v. State, 450 So. 2d 480 (Fla. 1984). There, the court considered whether the unlawful taking of two or more firearms during the same criminal episode was subject to separate prosecution as to each firearm under section 812.014(2)(b)3., Florida Statutes (1981). Id. at 481. Under that statute, “[i]t is grand theft . . . if the property stolen is . . . [a] firearm.”4 The court found that the use of the article “a” in reference to “a firearm” in section 812.014(2)(b)3. “clearly shows that the legislature intended to make each firearm a separate unit of prosecution.” Id. at 482. The court further found that its construction was consistent with federal court decisions holding that the term “any firearm” is “ambiguous with respect to the unit of prosecution and . . . must be treated as a single offense.” Id. (emphasis added).

The defendant, applying Grappin to this case, argues that the legislature’s use of the terms “any letter” and “any person” in section 836.10 indicates the legislature’s intent that the allowable unit of prosecution for a violation of section 836.10 should be the number of letters or communications sent, and not the number of people to whom each letter or communication is sent. The defendant further argues that the legislature’s use of the word “any” creates at least an ambiguity which, based on the rule of lenity, must be resolved in his favor. See id. (“If the Congress does not fix the punishment for federal offenses clearly and without ambiguity . . . then the rule of lenity applies and the ambiguity is to be resolved against turning a single transaction into multiple offenses.”) (citing Bell v. United States, 349 U.S. 81, 82 (1955)).

In response, the state argues that the defendant’s reliance on Grappin’s “a/any” test is misplaced in light of the supreme court’s more

4 That portion of the statute now is found at section 812.014(2)(c)5., Florida Statutes (2010).

 

recent opinion in Bautista v. State, 863 So. 2d 1180 (Fla. 2003). In Bautista, the court considered whether the occurrence of multiple deaths in a single DUI-related crash allowed for multiple convictions for DUI manslaughter under section 316.193(3)(c)3., Florida Statutes (2002). Id. at 1181. Under that statute, a person commits DUI manslaughter if the person, by reason of driving under the influence, “causes or contributes to causing . . . the death of any human being.” § 316.193(3)(c)3., Fla. Stat. (2002) (emphasis added). The court held that Grappin’s “a/any” test did not preclude multiple convictions under section 316.193(3)(c)3. Bautista, 863 So. 2d at 1188. The court reasoned:

[The defendant’s] argument based on the a/any test succeeds only if we were to apply the test as a simple syntactical rule in isolation from the context in which the test arose. However, it would be improper to so isolate this distinction. . . . [T]he a/any distinction was used in Grappin as one part of a common sense application of well-established rules of statutory interpretation, including reference to the overall statutory scheme and purpose as well as to related cases. Within this context, the a/any test is a valid linguistic tool that is helpful in establishing the Legislature’s intended unit of prosecution. However, the a/any test is not an infallible or exclusive indicator of legislative intent. Rather, absent clear legislative intent to the contrary, the a/any test serves as a valuable but nonexclusive means to assist courts in determining the intended unit of prosecution.

. . . Grappin and its progeny should not be interpreted to suggest that the intended unit of prosecution is automatically rendered ambiguous whenever a statute uses the word “any.” . . . The a/any test should not be applied to create an ambiguity where none exists and then to reach a result contrary to clear legislative intent.

Id. at 1187-88 (footnotes omitted).

We find that the reasoning in Bautista applies to this case. “In attempting to discern legislative intent, we first look to the actual language used in the statute.” Id. at 1185. Here, the actual language of the statute proscribes communications “containing a threat to kill or do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent.” § 836.10, Fla. Stat. (2004) (emphasis added). In our view, the statute’s plain focus is on “the person” to whom such letter or communication is sent. Accord

 

Smith v. State, 532 So. 2d 50, 52 (Fla. 2d DCA 1988) (the proscription which section 836.10 communicates is “not difficult to divine. . . . Section 836.10 is justified by the right of all persons to live free of unexpected and unwarranted fear of harm”). Thus, we hold that, under section 836.10, the unit of allowable prosecution is determined by the number of persons to whom a letter or communication is sent, and not the number of letters or communications sent. In short, the statute is not ambiguous and the rule of lenity does not apply in this situation.

Our decision is consistent with our recent holding in Mauldin. There, the defendant pointed a BB gun at two people and threatened to “cap them.” 9 So. 3d at 26. He was convicted of two counts of aggravated assault with a deadly weapon and ultimately was sentenced to consecutive sentences on those counts. Id. He later argued that the multiple convictions and consecutive sentences violated double jeopardy. Id. at 27. We held that the multiple convictions and consecutive sentences were permissible. Id. at 28. We reasoned:

It is clear from the assault statute that the legislature intended to punish the criminal defendant separately for each victim the defendant placed in fear by his or her threat. The assault statute define[s] the offense as: ‘[A]n intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such person that such violence is imminent.’ § 784.011(1), Fla. Stat. (2002). An element of assault is the placing in fear of a ‘person,’ and the statute criminalizes unlawful threats to ‘the person of another.’ Where multiple persons are placed in well-founded fear of imminent violence by a single threat, and the elements of the offense are otherwise satisfied, multiple convictions are permissible.

Id. Although the statute at issue here does not include “a well-founded fear” as an element, our focus in Mauldin was not on that element. Rather, we focused on the number of persons to whom a threat was communicated. Our focus today remains the same.

To base the unit of allowable prosecution on the number of letters or communications sent would not only fail to comport with the actual language of the statute and our own precedent, but also would lead to nonsensical results. For example, if the defendant in this case communicated all of his threats to Karen in the first letter and all of his threats to Hope in the second letter, then such actions would constitute two counts according to the defendant’s argument. But if the defendant

 

merely decided to save the cost of a stamp and communicated all of his threats to Karen and Hope in one letter sent to their joint address, then such action would constitute only one count, even though the defendant’s intent – to place both Karen and Hope in fear of harm – remained the same. Such a nonsensical result cannot exist as a matter of law.

The dissent nevertheless argues that the statute punishes based on the number of letters sent and not the number of persons threatened in the letter. In support of that argument, the dissent relies on 18 U.S.C. § 876(b) (2004), which is the federal statute on mailing threatening communications with the intent to extort money. The federal statute provides:

Whoever, with intent to extort from any person any money or other thing of value, so deposits, or causes to be delivered, as aforesaid, any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than twenty years, or both.

The federal statute, however, contains only two elements: “(1) a threatening communication (2) sent through the mails.” United States v. Geisler, 143 F.3d 1070, 1071-72 (7th Cir. 1998). Neither of those elements refers to the person to whom such letter or communication is sent. Section 836.10, on the other hand, contains three elements, the second and third of which refer to the person to whom such letter or communication is sent. See Wise, 664 So. 2d at 1030. Those references support our conclusion that section 836.10 punishes based on the number of persons to whom the letter or communication is sent and not the number of letters sent.

The dissent also focuses on the fact that, with regard to the two letters involved in this case, the defendant addressed one letter to Karen and the other letter to Hope. According to the dissent, that fact is significant because section 836.10 does not punish the defendant for sending a letter to Karen threatening Hope and vice versa. As the dissent notes, however, the defendant has not raised an insufficiency of the evidence argument in this appeal. Thus, for our purposes, it is insignificant that the defendant addressed one letter to Karen and the other letter to Hope. Instead, based on the jury’s verdict, we are required to accept the state’s charges that the defendant sent both letters to Karen and Hope. As a result, we are compelled to affirm.

 

Affirmed.5

STEVENSON, J., concurs.

WARNER, J., dissents with an opinion.

WARNER, J., dissenting.

I dissent. The statute punishes the sending of the letter, not the number of persons threatened in the letter. Therefore, two of the four convictions violate double jeopardy.

For purposes of this dissent, I have edited the statute to include only the operative portions of section 836.10, Florida Statutes (2004), applicable to this case:

If a person writes . . . and also sends . . . any letter . . . to any person, containing a threat to kill or to do bodily injury to the person to whom such letter . . . is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter . . . is sent, the person so writing . . . and so sending . . . of such letter, shall be guilty of a felony of the second degree. . . .

As noted in State v. Wise, 664 So. 2d 1028, 1030 (Fla. 2d DCA 1995), a violation of this statute occurs when: (1) a person writes or composes a threat to kill or do bodily injury; (2) the person sends or procures the sending of that communication to another person; and (3) the threat is to the recipient of the communication or a member of his family. The act of sending the letter is the prosecutable offense. Wise involved the issue of venue for the prosecution of the offense, and the court explained that the act of sending for venue purposes can include where the letter was received. In a footnote, however, the court noted: “This is not to say that prosecution would not be appropriate in a case in which a threatening letter was mailed but not received by the intended recipient.” In other words, the court did not decide that receipt of the letter was an essential element of the offense.

Section 836.10, Florida Statutes is similar to 18 U.S.C. § 876(b) involving the mailing of threatening communications. The federal statute requires an intent not present in the Florida statute but also punishes

5 The jury also convicted the defendant of two counts of aggravated stalking based on the letters. The defendant has not challenged those convictions in this appeal either.

 

the sending of a communication containing a threat to injure the addressee:

Whoever, with intent to extort from any person any money or other thing of value, so deposits, or causes to be delivered, as aforesaid, any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than twenty years, or both.

(emphasis added). The crime contains only two elements: “(1) a threatening communication (2) sent through the mails.” See United States v. Geisler, 143 F.3d 1070, 1071-72 (7th Cir. 1998). Federal cases suggest that the unit of prosecution is the letter, not the number of people to whom it is addressed nor the number of people threatened in the letter. For instance, in United States v. Lincoln, 589 F.2d 379 (8th Cir. 1979), the defendant sent two letters which were addressed to the Clerk of Court of the U.S. Court of Appeals for the Eighth Circuit, and each letter made threats against all of the judges of the Eighth Circuit. The defendant was charged and convicted for only two offenses, namely one for each letter sent. In United States v. Chapman, 440 F. Supp. 1269 (E.D. Wis. 1977), a letter addressed to two individuals and threatening both of them was treated as one violation of the statute. Mailing the letter, not writing it or its contents, is the “gravamen of the offense.” Bender v. United States, 387 F.2d 628, 630 (1st Cir. 1967).

Grappin v. State, 450 So. 2d 480 (Fla. 1984), is more on point to this case than Bautista v. State, 863 So. 2d 1180 (Fla. 2003), relied on by the majority. In Grappin, the defendant stole five firearms during a single burglary and was charged with five separate offenses of grand theft. The statute imposed punishment for the theft of “a firearm.” The court determined that by use of “a,” the legislature determined that the theft of each firearm was a separate unit of prosecution. However, it noted that federal courts had construed the prohibition of the theft of “any firearm” as being ambiguous to the unit of prosecution, thus requiring the application of the rule of lenity, precluding multiple charges for the theft of multiple firearms in a single theft.

In the same way, section 836.10 prohibits the sending of any letter. Just like the theft of any firearm, the unit of prosecution is ambiguous. Therefore, based upon the principle of lenity, the unit of prosecution must be the letter sent, not the number of persons to whom that one letter is sent.

 

The majority cites Bautista v. State, 863 So. 2d 1180 (Fla. 2003), as authority for its position. However, Bautista notes that “absent clear legislative intent to the contrary, the a/any test serves as a valuable but nonexclusive means to assist in determining the intended unit of prosecution.” Id. at 1188 (emphasis added). In Bautista, the court found clear legislative intent to permit DUI manslaughter prosecutions based upon the number of deaths arising from a single incident. Bautista concluded that the Legislature intended to punish each death occurring in a DUI manslaughter, relying on the fact that homicide statutes punish each death, and that the original manslaughter statutes punished the killing of “a” human being. Thus, Bautista was based on an account of legislative history of manslaughter.

On the other hand, the Bautista court also noted its prior decision in Wallace v. State, 724 So. 2d 1176 (Fla. 1998), where the court held that a defendant who resisted two officers during a single incident could be charged with only one crime because the statute prohibited resisting “any” officer. Relying on the principle of lenity, Wallace concluded that the Grappin analysis should apply.

In this case, the majority cannot cite any legislative history or clear intent to justify its result. There is none. The majority concludes that the focus of section 836.10 is the threat to the person to whom a communication is sent. But Wise, as well as a comparison of the similar federal statute, show that the focus is the sending of a letter, not its receipt and the striking of fear in the mind of the recipient.

Mauldin v. State, 9 So. 3d 25 (Fla. 4th DCA 2009), cited by the majority, is also inapplicable, because the unit of prosecution under the assault statute is a single person. See § 784.011(1), Fla. Stat. (“[A]n intentional, unlawful threat . . . to do violence to the person . . . which creates a well-founded fear in such . . . person that violence is imminent.”) (emphasis added). An essential element of the offense is the victim’s well-founded fear of violence. See Johnson v. State, 888 So. 2d 691 (Fla. 4th DCA 2004). Therefore, the statute focuses on the effect of the perpetrator’s acts on the victim. In contrast, section 836.10 does not require any effect on the victim as an essential element of the crime. Neither the actual intent to do harm, nor the ability to carry out the harm threatened, is an essential element of the crime. See Smith v. State, 532 So. 2d 50, 52 (Fla. 2d DCA 1988). The focus of the statute is on the sending of the communication.

The issue of the unit of prosecution renders the statute ambiguous. Where a criminal statute is ambiguous, the rule of lenity applies, and the

 

statute must be construed most favorably to the accused. See Kasischke v. State, 991 So. 2d 803, 814 (Fla. 2008). This rule has been applied to ambiguity involving statutes where the court must use the a/any test to determine the unit of prosecution. See Francis v. State, 41 So. 3d 975 (Fla. 5th DCA 2010) (involving convictions for possession of firearms by a convicted felon). The majority has not pointed to clear legislative intent, other than the ambiguous language of the statute itself, to support its position.

Moreover, even under the majority’s opinion, the four convictions violate double jeopardy. The majority holds that the allowable unit of prosecution is the number of persons to whom the letter is sent. The defendant sent two letters in this case, but each was addressed to only one person. One was addressed to Karen Robertson. The other was addressed to Hope Suggs. In each, the defendant rambled about his difficulties with each woman and his children. He made threats against both Hope and Karen in each letter, but again each letter was sent to only one person. Therefore, even under the majority’s analysis, only two convictions should result from the sending of these letters.

Furthermore, although not raised by appellant in his brief (even though the issue was raised at trial), the statute does not punish appellant for sending a letter to Hope threatening Karen and vice versa. Karen and Hope are not related, so they are not a “member of the family” of the other. Therefore, even if the letter to Hope did threaten Karen, it is not a violation of the statute.

For all of these reasons, I would reverse, remand, and instruct the trial court to vacate two of the four convictions for violating section 836.10.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Sherwood Bauer, Jr., Judge; L.T. Case No. 04- 367CF.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

 

 

Courtesy of David Edelstein

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

STEVEN STRAT KARRAS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-2600

[May 25, 2011]

MAY, J.

The defendant appeals his conviction and sentence for sale/delivery of cocaine, possession of cocaine, and trafficking in cocaine (28 grams or more). He argues, among other things, that the trial court erred in punishing him for exercising his right to jury trial. We find no merit in the other issues raised, but agree that the sentencing pronouncement indicates that the trial court enhanced the sentence requested by the State for impermissible reasons and reverse.

At sentencing, the following exchange occurred:

[STATE]: Judge, we’re asking for four years DOC with a three-year minimum mandatory. We’re asking for the four years because this Defendant did take the stand, did give rather [an] incredible story given that h e was – - his conversation with the [confidential informant] was recorded.

. . . .

This Defendant does have a history. And based upon the conversations that were on there, the three-year minimum mandatory, this Defendant also chose to go to trial, didn’t accept responsibility for his actions.

So, therefore, we feel the three-year minimum mandatory isn’t appropriate, that he does deserve more for his taking the stand and lying and not accepting responsibility.

 

. . . .

THE COURT: It is said of course that when people enter a plea and acknowledge and accept responsibility for their conduct and express a willingness to acknowledge they did something wrong and accept responsibility for it that they get the benefit of having entered a plea. On the converse side, no one gets punished for going to trial. They have a constitutional right to go to trial. However, that’s not completely unfettered.

When someone goes to trial and takes the stand under oath [] that can sometimes turn a garden variety case into an aggravated case. And I recall the entrapment defense and the testimony in this case to be aggravating.

So on count on[e], sale or delivery of cocaine, I will adjudicate you guilty, sentence you to sixty months in the Department of Corrections with credit for time served in the amount of four hundred and fourteen days. I’ll order court costs of $398, costs of prosecution $100, costs of investigation $50, $125 drug trust fund.

(emphasis added).

The defendant did not object to the trial court’s comments, but did file a motion to correct a sentencing error, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court determined it did not have the authority to consider the motion because it focused on the sentencing rather than the sentence.

We begin by acknowledging that the trial court started down the right path by correctly reiterating the cardinal rule that a defendant cannot be punished for exercising his constitutional right to go to trial. See Aliyev v. State, 835 So. 2d 1232, 1234 (Fla. 4th DCA 2003). But, then the trial court diverted from that path and crossed over the line of fundamental error when it sentenced the defendant to a greater amount of time than requested by the State as he “recall[ed] the entrapment defense and the testimony in this case to be aggravating.”

In essence, those words reflect that the trial court based its sentencing decision upon its disbelief of the defendant’s testimony at trial. The State requested a four-year sentence because the defendant

 

“deserve[d] more for . . . taking the stand and lying and not accepting responsibility.” The trial court erred when it obliged the State’s request, commented that the trial testimony aggravated the case, and sentenced the defendant to an increased amount of five years. See Lyons v. State, 730 So. 2d 833, 834-35 (Fla. 4th DCA 1999).

Reversed and remanded for resentencing before a different judge. DAMOORGIAN and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case No. 562008CF001553A.

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

Pamela J o Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

 

 

Courtesy of David Edelstein

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

STATE OF FLORIDA,

Appellant,

v.

JAMIE EUGUI,

Appellee.

No. 4D10-1225

[May 25, 2011]

PER CURIAM.

We reverse the dismissal of the information charging appellee with one count of delivery of a counterfeit controlled substance. See § 831.31, Fla. Stat. (2009). The trial court based the dismissal on a motion appellee filed under Florida Rule of Criminal Procedure 3.190(c)(4). The state filed a traverse which set forth specific facts which, in the light most favorable to the state, establish appellant’s knowing participation in the drug transaction. For example, a coconspirator told the state’s confidential informant that the crack was in transit, and that the informant “needed to wait for [appellee], who was in the bar, to go get the crack.” Appellee told the informant to wait for him in a bar, went to a codefendant’s house, and returned with another codefendant who made the hand-to-hand transaction. To survive a motion to dismiss, “the state need not produce evidence sufficient to sustain a conviction. So long as the state shows the barest prima facie case, it should not be prevented from prosecuting.” State v. Bailey, 508 So. 2d 1268, 1269 (Fla. 4th DCA 1987) (internal citations omitted).

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. 09- 12539CF10C.

 

Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

 

 

Courtesy of David Edelstein

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

D.F.J., a child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1763 [May 25, 2011]

DAMOORGIAN, J.

D.F.J., a child, appeals his adjudication of delinquency for aggravated battery and robbery with a weapon. We reverse for insufficiency of evidence.

The evidence adduced at the adjudicatory hearing established that the victim was attacked from behind and suffered a deep laceration to the top portion of the left side of his head. After being struck, he was robbed of a gold chain, cash, and a cellular telephone. The crime occurred in the backyard of the victim’s home while he and D.F.J., along with the co¬defendant and an unidentified male, drank beer. At some point, the victim was grabbed by the neck and struck from behind. He passed out and awoke with a stab wound to the head. He did not see who had grabbed or struck him, and could not identify which of the three other individuals present at the time of the attack may have perpetrated the crime.

D.F.J. and the co-defendant were witnessed jumping over a fence near the scene and the victim’s wallet was found by the fence. Both denied any knowledge of the crime, although each admitted to being at the scene with the victim and the unidentified male.

At the close of the State’s case, the defense moved for judgment of dismissal, arguing that the case was purely circumstantial, and there were no eyewitnesses that saw D.F.J. involved in the robbery or the

 

aggravated battery.1 The defense argued that there was a reasonable hypothesis of innocence since there was no indication of who actually attacked and robbed the victim. Because the evidence failed to exclude a reasonable possibility that someone else could have committed the crime, the defense submitted that the court was required to grant the motion for judgment of dismissal.

The State countered that the evidence showed that the victim was hit in the back of the head, grabbed around the neck, and stabbed in the head. At some point during or after the attack, the victim’s necklace was ripped off, and his phone and wallet were taken. The State also noted that the victim had testified that D.F.J. and the co-defendant were speaking in a dialect he did not understand, giving the appearance that something was being planned. Additionally, D.F.J. and the co-defendant ran from the scene at the same time, and the victim’s wallet was found near the fence D.F.J. jumped over. Finally, both D.F.J. and the co¬defendant stated that the victim, during an altercation between the co¬defendant and the unknown male, retrieved several knives from inside his home and returned to the scene.2 The State argued that these statements indicated knowledge of the presence of the knife at the scene.

A motion for judgment of dismissal should b e granted in a circumstantial evidence case if the State fails to present evidence from which the judge can exclude every reasonable hypothesis except that of guilt. J.R. v. State, 671 So. 2d 278, 278 (Fla. 2d DCA 1996) (“Regardless of how strongly the circumstantial evidence suggests guilt, a court may not sustain a conviction unless the evidence is inconsistent with any hypothesis of innocence.”).

D.F.J. contends that the State’s only evidence against him is that he was present at the scene of the commission of the crimes and that he fled from the scene. The State offers no evidence that D.F.J. perpetrated or assisted in the perpetration of the crimes or that he had the intent to join in the crimes. Most importantly, D.F.J. argues that the State failed to present evidence from which the judge could exclude the reasonable

1 Under Rule 8.110(k), Florida Rules of Juvenile Procedure, a motion for judgment of dismissal is the equivalent of a motion for judgment of acquittal in the adult criminal context. See W.E.P., Jr. v. State, 790 So. 2d 1166, 1169 n.3 (Fla. 4th DCA 2001). The standard for ruling on a motion for judgment of dismissal is the same as the standard for ruling on a motion for judgment of acquittal. Id. at 1169-70.

2 The officers investigating the crime recovered only one knife from the scene.

 

hypothesis that D.F.J. was merely a witness to the crime. See J.W. v. State, 467 So. 2d 796, 797 (Fla. 3d DCA 1985). We agree.

The State’s evidence was circumstantial. No matter how strongly the circumstantial evidence points toward guilt, the evidence must, nonetheless, rebut any hypothesis of innocence, including that D.F.J. was present at the scene, and was merely a witness to the crime. Id.

Because the only witness to the crime was the victim and he could not definitively state who attacked him, the State was unable to overcome D.F.J.’s reasonable hypothesis of innocence. See T.L.M. v. State, 755 So. 2d 749, 751 (Fla. 4th DCA 2000) (citing M.P.W. v. State, 702 So. 2d 591, 592 (Fla. 2d DCA 1997)). Accordingly, D.F.J.’s motion for judgment of dismissal in this circumstantial evidence case should have been granted. See, e.g., State v. Law, 559 So. 2d 187 (Fla. 1989); Dupree v. State, 705 So. 2d 90, 94 (Fla. 4th DCA 1998).

Reversed and Remanded for dismissal of the charges against D.F.J. MAY and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Gary L. Sweet, Judge; L.T. Case No. 432009CJ000620A.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

 

 

Courtesy of David Edelstein

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

PEDRO MARTINEZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2023

[May 25, 2011]

PER CURIAM.

We affirm the trial court’s denial of appellant’s Florida Rule of Criminal Procedure 3.800(a) motion without prejudice to file a sufficient postconviction motion. Rodriguez v. State, 728 So. 2d 1172 (Fla. 4th DCA 1999). Appellant’s unsworn Rule 3.800(a) motion did not establish that the face of the record established a clear entitlement to additional jail credit in this case. State v. Mancino, 714 So. 2d 429 (Fla. 1998).

Appellant failed to show that concurrent sentences were imposed. Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986); Ransone v. State, 20 So. 3d 445 (Fla. 4th DCA 2009), approved, 48 So. 3d 692 (Fla. 2010). Appellant also failed to show that the face of the record clearly established that he was arrested on the warrant in this case on the date he alleges. Martinez v. State, 932 So. 2d 337 (Fla. 4th DCA 2006); see also Hines v. State, 4 So. 3d 726 (Fla. 4th DCA 2009).

Appellant’s motion was filed within the time for bringing a Rule 3.850 motion. Accordingly, we affirm without prejudice for appellant to raise his jail credit claim in a sworn and legally sufficient Rule 3.850 motion that must be filed within thirty days of the date of the mandate to be issued in this case.

Affirmed.

MAY, DAMOORGIAN and CONNER, JJ., concur.

* * *

 

Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 08-023979 CF10E.

Pedro Martinez, Hialeah, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

 

 

Courtesy of David Edelstein

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

ANGELO ZANGHI,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D11-1248

[May 25, 2011]

PER CURIAM.

In a n indirect criminal contempt case arising from a marital dissolution case, the husband seeks a writ of prohibition following the denial of his verified motion to disqualify the circuit judge. The circuit judge denied the motion, finding that the motion was untimely and legally insufficient. We grant the petition and remand for the clerk to reassign the indirect criminal contempt case to another circuit judge.

The motion was both timely and legally sufficient. “A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.” Fla. R. Jud. Admin. 2.330(e) (2010). Here, the husband filed the motion within ten days of the date on which the indirect criminal contempt case was transferred to the circuit judge. The husband could not have filed the motion any earlier because the circuit judge was not presiding over the indirect criminal contempt case until the case was transferred to the circuit judge.

As for legal sufficiency, “[w]hile a trial judge may form mental impressions and opinions during the course of hearing evidence in a case, the judge is not permitted to pre-judge the case.” Kates v. Seidenman, 881 So. 2d 56, 58 (Fla. 4th DCA 2004) (citations omitted). Here, the circuit judge’s comments in the marital dissolution case, effectively stating that the husband should be convicted in the indirect criminal contempt case, were made before the indirect criminal contempt case was transferred to the judge and go beyond mere impressions and

 

opinions. Instead, the comments created a well-grounded fear of having pre-judged the merits of the indirect criminal contempt case. See Wargo v. Wargo, 669 So. 2d 1123, 1124 (Fla. 4th DCA 1996) (“[A] party seeking to disqualify a judge need only show ‘a well grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind and the basis for such feeling.’”) (citations omitted).

Accordingly, we grant the petition for writ of prohibition and remand for the clerk to reassign the indirect criminal contempt case to another circuit judge. We withhold formal issuance of the writ o n the assumption that the current circuit judge will comply with this opinion. This opinion has no bearing upon the circuit judge’s ability to continue hearing the marital dissolution case.

Petition granted.

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

* * *

Petition for writ of prohibition to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James L. Martz, Judge; L.T. Case No. 502010MM020156AXXXXSB.

Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, and Chad R. Laing of Laing Law Group, P.A., Boca Raton, for respondent.

Not final until disposition of timely filed motion for rehearing.

 

 

Courtesy of David Edelstein

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

 

KENNETH PAUL BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

 

CASE NO. 1D10-0357

 

Opinion filed May 23, 2011.

An appeal from the Circuit Court for Duval County. Michael R. Weatherby, Judge.

Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Public Defender, Tallahassee, for Appellee.

PER CURIAM.

Kenneth Paul Brown (“Appellant”) appeals the denial of his motion filed under Florida Rule of Criminal Procedure 3.800(b)(2) to correct asserted sentencing errors. He raises no challenge to his conviction for sale or delivery of cocaine.

 

On July 16, 2010, Appellant filed a 3.800(b)(2) motion asserting that the trial court erred in imposing a Habitual Felony Offender (“HFO”) sentence because it failed to order a presentence investigation report and because the state failed to prove up the requisite prior felonies. See §§ 775.084(1)(a)2.b., (3), Fla. Stat. (2009). Rule 3.800 requires a trial court to dispose of such a motion within 60 days from the date the motion is filed. See Fla. R. Crim. P. 3.800(b)(2)(B). Failure to rule on the motion within 60 days operates as a denial, and any order the trial court enters thereafter is a nullity. See, e.g., Dupree v. State, 20 So. 3d 989 (Fla. 1st DCA 2009); Calidonio v. State, 951 So. 2d 87 (Fla. 1st DCA 2007); Mills v. State, 949 So. 2d 1186 (Fla. 1st DCA 2007). Although the trial court in this case resentenced Appellant, granting the relief sought, it did not do so until November 18, 2010, well outside the 60-day time period prescribed by Rule 3.800(b). Because the court effectively denied the motion in error, as the state properly concedes, we reverse Appellant’s HFO sentence and remand for resentencing.

REVERSED and REMANDED.

BENTON, C.J., CLARK, and MARSTILLER, JJ., CONCUR.

 

 

Courtesy of David Edelstein

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

 

RAY JOSE WILLIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

 

CASE NO. 1D10-4154

 

Opinion filed May 23, 2011.

An appeal from the Circuit Court for Escambia County. Linda L. Nobles, Judge.

Nancy A. Daniels, Public Defender; and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant pled no contest to a charge of possession of a firearm and ammunition by a convicted felon. Prior to his plea, the appellant had unsuccessfully moved to suppress the shotgun and shotgun shells that were seized

 

by deputies from the bedroom of the appellant’s home. As the shotgun and shells were the only evidence of the crime, a ruling favorable to the appellant at trial would have required the dismissal of the charges. On appeal, the state concedes, rightfully, that exigent circumstances did not exist to search the appellant’s bedroom without a warrant.

REVERSED and REMANDED with instructions to discharge the appellant. WEBSTER, VAN NORTWICK, and ROBERTS, JJ., CONCUR.

 

 

Courtesy of David Edelstein

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

 

MICHELE JEANNE DEWOLFE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

 

CASE NO. 1D10-5187

 

Opinion filed May 23, 2011.

An appeal from the Circuit Court for Escambia County. Frank L. Bell, Judge.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.

BENTON, C.J.

On direct appeal from her conviction and sentence for felony petit theft, Michele DeWolfe contends that the trial court erred in keeping from the jury testimony of two witnesses that they had heard one Bruce Ahlgren confess to the

 

crime of which Ms. DeWolfe has now been convicted. Persuaded that testimony recounting Mr. Ahlgren’s declaration1 against penal interest should have been allowed in evidence, we reverse and remand for a new trial.

Ms. DeWolfe was found guilty of the June 29, 2007 theft of two air conditioners that were taken from a house she had recently vacated. A former neighbor, Terry Manley, testified that she spotted Ms. DeWolfe and an older man removing the air conditioners and placing them in a small pickup truck a day or two after Ms. DeWolfe moved out.

The defense sought to put on the testimony of Donald Gibson (Mr. Ahlgren’s friend of 25 years) and Maegen DeWolfe (the defendant’s daughter), that Mr. Ahlgren had confessed to stealing the air conditioners from the empty house.2 Conceding the confession was hearsay, appellant relies, here as below, on

1 The declarant in the present case was far from anonymous. He was known by multiple witnesses, and had been personal friends with one of the proffered witnesses for a quarter of a century.

2 Mr. Gibson testified on proffer in response to questions from counsel and the court:

A. Yes, sir. What he told me was – we was at the [Oar] house drinking one night, you know, taking a break from the cabs, and he told me that a girl that worked at Shoreline named Michele – I didn’t know her name – that Michele, he had went by there and supplemented his income because he didn’t have enough money to pay for his cab that day because we had been drinking.

Q. What was the circumstances of that particular conversation?

A. Well, he told me that – you know, he plays

 

harmonica and he plays music. We had had a couple of pitchers of beer. He told me there was cardboard on the back window. He said it’s like walking through the back door.

Q. My question is, how did that conversation come up at that point?

A. I asked him where he was getting his money

from.

Q. Where he’s getting – -

A. Where he’s getting his extra money. Because and I drove a cab too and I was having to hustle. He always had a little extra money. He told me at that point that he would go around and scope out empty dwellings. And if it seemed like an easy target, he would pick it out, you know, and get some help and go get it.

. . . .

Q. Okay. So he talked about generally going to houses. Did he mention a specific house?

A. No, no, he didn’t. But he told me – he told me that the girl that worked at Shoreline named Michele, and that’s how I found out. And then later on he introduced me to Michele, which she’s a very nice lady.

Q. So he said that – did he say when he had stolen this unit?

A. No, he didn’t tell me when. I don’t even know where the house is at.

Q. And he just specifically said, I stole a unit from

a house that somebody who worked at Shoreline lived in?

A. He said appliance. He didn’t say no unit or nothing. He just said he was taking appliances.

Q. And so he was talking generally about all of the things that he did, stealing. Did he mention any other incidences specifically?

A. Well, no. He just told me – he drove a cab, okay, so he knew where all the empty houses was.

. . . .

THE COURT: And did he tell you that he was just stealing air conditioners at random because the houses were vacant?

 

section 90.804(2)(c), the declaration-against-penal-interest exception to the rule excluding hearsay:

(2) The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:

. . . .

(c) Statement against interest. ?A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

§ 90.804(2)(c), Fla. Stat. (2010). Mr. Ahlgren’s unavailability was not at issue: He had died by the time of trial. His confession to theft was, moreover, plainly against his penal interest. But the trial court ruled the hearsay statements did not meet the criteria of section 90.804(2)(c), in that corroborating circumstances did not show the statements to be trustworthy.

THE WITNESS: Yes, sir. Because I was wondering where he was getting his extra money.

THE COURT: What did he say he was doing with the appliances?

THE WITNESS: He was tearing them apart and selling them.

THE COURT: Selling what?

THE WITNESS: Selling the copper and then selling the junk.

 

It is for the jury, not the judge, to decide whether a declaration against penal interest should be credited. The trial judge exercises only a gatekeeping function, by deciding whether corroborating circumstances show the declaration’s “trustworthiness.” “In determining what constitutes . . . a showing [of particularized guarantees of trustworthiness], . . . the relevant circumstances only include those that surround the making of the statement and those that render the declarant worthy of belief.” Franqui v. State, 699 So. 2d 1312, 1318-19 (Fla. 1997) (citing Idaho v. Wright, 497 U.S. 805, 819 (1990)).

In making the decision whether to admit evidence of a declaration against penal interest, the trial judge should consider “the language used and the setting in which the statement was made,” and decide whether the statement is “consistent with both the defendant’s general version of events and the other evidence presented at trial.” Masaka v. State, 4 So. 3d 1274, 1282 (Fla. 2d DCA 2009) (citing Carpenter v. State, 785 So. 2d 1182, 1203 (Fla. 2001); Machado v. State, 787 So. 2d 112, 113 (Fla. 4th DCA 2001)). Ms. DeWolfe, who acknowledged that, after she had been evicted, she had help moving her personal property from the home she had rented, testified that the air conditioners were still there when she left the house. She denied returning to the house after moving out. She also testified that the front door was broken (and that when she lived there she had kept a couch against it to keep it closed), that cardboard covered a portion of the back

door where glass was missing, and that keys were not necessary in order to get into the house.

Mr. Gibson testified on proffer that Mr. Ahlgren admitted to the theft of the air conditioners, and that Maegen DeWolfe, the defendant’s daughter, was present when Mr. Ahlgren confessed and apologized. Maegen testified that Mr. Ahlgren said that he and an accomplice named Patrick had taken the air conditioners from the house which Ms. DeWolfe had lived in until shortly before the theft occurred. She testified that Mr. Ahlgren admitted he took the air conditioners a night or two after Ms. DeWolfe had moved out of the house.

Mr. Gibson testified on proffer that, in early 2009, before he met Ms. DeWolfe, Mr. Ahlgren described getting extra money by taking appliances from empty dwellings and removing and selling the copper. During this conversation, Mr. Gibson reported, Mr. Ahlgren specifically mentioned removing an appliance from a house where “Michele who worked at Shoreline” was living and stated entry was simple because there was cardboard on the back window.3

3 The trial court asked how Mr. Gibson knew Mr. Ahlgren was talking about the air conditioners at issue in this case as opposed to other crimes he was committing:

THE COURT: Okay. And how do you know, sir, that he was talking about this incident in this theft as opposed to other crimes he was committing?

THE WITNESS: Because she’s the only Michele that worked at Shoreline.

THE COURT: You know that, right? You got

Separately, Maegen testified on deposition that a few weeks earlier, before he went to the nursing home, Mr. Ahlgren was at Ms. DeWolfe’s home, and bragged about stealing appliances in order to remove and sell copper. Maegen testified further that, while she was visiting the nursing home, Mr. Ahlgren told her he and somebody named Patrick returned to the rental house a night or two after Ms. DeWolfe moved out, took the air conditioners, and removed and sold copper to obtain money for drugs. Maegen testified that Mr. Ahlgren stated that Ms. DeWolfe had nothing to do with the theft and that he was sorry she had been arrested for a crime he had committed.

As Ms. DeWolfe’s daughter, Maegen DeWolfe presumably had an interest in the outcome of the trial.4 “Under Florida law, however, the credibility of an in-court witness who is testifying with regard to an out-of-court declaration against penal interest is not a matter that the trial court should consider in determining whether to admit the testimony concerning the out-of-court statement. Instead, it is the jury’s duty to assess the credibility of the in-court witness who is testifying about the out-of-court statement.” Carpenter, 785 So. 2d at 1203 (citations omitted). But see Bearden v. State, 36 Fla. L. Weekly D760, 763 (Fla. 2d DCA

their payroll down there?

THE WITNESS: No, sir; my cousin worked there.

4 On the other hand, Mr. Gibson did not even meet Ms. DeWolfe until almost two years after the air conditioners disappeared.

 

Apr. 13, 2011) (stating “an evaluation of the credibility of the witness the defense proposes to use to place the alleged statements on the record is unavoidable”).

Under the cases, the issue is whether Mr. Ahlgren’s statements were sufficiently corroborated. “Once that admissibility threshold was met, the credibility of [Mr. Ahlgren’s] statements and [Ms. DeWolfe’s] defense was for the jury, not the trial court, to assess.” Masaka, 4 So. 3d at 1283. Mr. Ahlgren’s confession at the nursing home was consistent with prior statements he made to Maegen DeWolfe at Ms. DeWolfe’s home. See Machado, 787 So. 2d at 113-14 (holding the trial court properly admitted a hearsay account of statements made to a friend’s son, where the declarant had no reason to fear capture at the time). See also Chambers v. Mississippi, 410 U.S. 284, 300 (1973) (concluding that the fact that a confession was made spontaneously to a close acquaintance provided assurance of reliability, and that the “sheer number of independent confessions provided additional corroboration”).

Mr. Ahlgren’s confession at the nursing home was consistent with a prior admission to Mr. Gibson in which Mr. Ahlgren had described an area of missing glass being covered by cardboard which made entry easy at a home rented by Michele. This was consistent, moreover, with the trial testimony of Ms. DeWolfe describing the condition of the rental home.

 

“As a general rule, a trial court’s ruling on the admissibility of evidence will not be reversed, absent an abuse of discretion. However, a court’s discretion is limited by the evidence code and applicable case law. A court’s erroneous interpretation of these authorities is subject to de novo review.” McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006) (citations omitted). See also Lilly v. Virginia, 527 U.S. 116, 136 (1999) (“Nothing in our prior opinions, however, suggests that appellate courts should defer to lower courts’ determinations regarding whether a hearsay statement has particularized guarantees of trustworthiness. To the contrary, those opinions indicate that we have assumed, as with other fact-intensive, mixed questions of constitutional law, that ‘[i]ndependent review is . . . necessary . . . to maintain control of, and to clarify, the legal principles’ governing the factual circumstances necessary to satisfy the protections of the Bill of Rights.” (quoting Ornelas v. United States, 517 U.S. 690, 697 (1996))).

The issue in the present case is whether Ms. DeWolfe was present when the air conditioners were taken—the state offered no other evidence of involvement on her part—or whether, as Mr. Ahlgren reportedly said, he and Patrick took the machines without her knowledge. The declaration against penal interest was “consistent with both the defendant’s general version of events and [much of] the other evidence presented at trial.” Masaka, 4 So. 3d at 1282 (citing Carpenter, 785

 

So. 2d at 1203). Only the neighbor’s testimony was to the contrary. In deciding whether the neighbor saw what she said she saw5 or instead mistook what was happening when Ms. DeWolfe and her friend moved her things out, the jury should have been allowed to consider the testimony concerning Mr. Ahlgren’s declaration, and decide whether to give credence to the statements against penal interest the witnesses recounted.

The excluded evidence was central to Ms. DeWolfe’s defense. “Under Florida’s harmless error analysis, the reviewing court must determine ‘whether there is a reasonable possibility that the error affected the verdict.’ State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). The State, as the beneficiary of the error, has the burden to show that the error was harmless. Id. ‘If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict,

5 Ms. DeWolfe’s testimony that she did not get along with Ms. Manley suggested that Ms. Manley might be quick to jump to unflattering conclusions about her.

Q. How did you get along with Ms. Manley?

A. Me – we never got along very well. We had some differences in religion. She thought I should go to church more often. I was having trouble with my fifteen¬year-old daughter. She was running wild, and I was, you know, trying to take care of her and still have that situation. Terry and I had differences – some serious differences on what I should do and what I shouldn’t do. She thought I should call the police on my daughter, and I didn’t think that was the right way to handle it.

Ms. Manley acknowledged that she went to Ms. DeWolfe’s house and prayed with her and talked to her about her life-style and things of that nature.

 

then the error is by definition harmful.’ Id.” State v. Contreras, 979 So. 2d 896, 911 (Fla. 2008). The state does not even argue that any error in excluding the evidence would be harmless. But see Goodwin v. State, 751 So. 2d 537, 545 (Fla. 1999) (“The solemn obligation of the Court to perform an independent harmless error review and establish the analysis to be applied in performing that review is so critical to the appellate function that this Court has satisfied its obligation to review for harmless error, even when the State has not argued that the complained of error was harmless.” (citing Heuss v. State, 687 So. 2d 823 (Fla. 1996))). It cannot be said beyond a reasonable doubt that the excluded testimony could not have produced reasonable doubt in the minds of the jurors and so have led to acquittal.

Reversed and remanded for a new trial.

WEBSTER and VAN NORTWICK, JJ., CONCUR.

 

 

Courtesy of David Edelstein

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

 

BRIAN TAYLOR,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

 

CASE NO. 1D10-6626

 

Opinion filed May 23, 2011.

Petition for Writ of Prohibition — Original Jurisdiction.

Matt Shirk, Public Defender; Richard Gordon and Michelle Barki, Assistant Public Defenders, Jacksonville, for Petitioner.

Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.

PADOVANO, J.

Brian Taylor seeks a writ of prohibition to prevent further proceedings in the trial court on the state’s petition to have him involuntarily committed as a sexually violent predator. We conclude that Mr. Taylor was not in lawful custody at the

 

time the petition was filed and that the circuit court therefore lacks jurisdiction to proceed with the case. Accordingly, we grant the petition.

Mr. Taylor was convicted in 1988 of armed sexual battery and sentenced to a term of fifteen years. On May 30, 2002, approximately one week before he was scheduled to be released from the Department of Corrections on the completion of his sentence, the state filed a petition to have him involuntarily committed under the Jimmy Ryce Act, sections 394.910 through 394.932, Florida Statutes. The trial court found probable cause in an ex parte hearing that day and appointed counsel.

An adversarial probable cause hearing was set for July 10, 2002, a date more than thirty days from the finding of probable cause and therefore beyond the time limit for trial. See § 394.916(1), Fla. Stat. (2002). The prosecutor assigned to the case at that time stated that the date for the hearing was set by an informal agreement. She explained that she and the defense lawyer had agreed to an adversarial probable cause hearing beyond the original time limit for the trial, but that they also agreed that, if the trial judge were to find probable cause again, the trial would be held within thirty days of the order. The prosecutor described this arrangement as a “limited waiver of speedy trial.”

The prosecution and defense subsequently agreed to postpone the adversarial hearing, and it did not take place until December 5, 2002. The trial judge found probable cause, but, for reasons that are not apparent from the record, a trial date

 

was not set at that time. Approximately two and one half years later, the court entered an order setting the trial for September 13, 2005.

The state moved to continue the trial beyond the September date, on the ground that one of its expert witnesses had changed his opinion and that he no longer thought that Mr. Taylor met the criteria for involuntary commitment. Mr. Taylor believed this recent development might lead to a settlement and for that reason he did not object to the state’s motion. The state alleged in the motion that Taylor had waived his right to a speedy trial. This was evidently a reference to the limited waiver of the original thirty-day time period for the adversarial probable cause hearing. There is no written waiver of speedy trial in the record. Nor does it appear that Mr. Taylor waived his right to a speedy trial on the record in open court. The state’s motion to continue was granted. The order on the motion did not set a date for the trial.

Nearly five more years passed, and the case had still not been set for trial. Then on February 4, 2010, Mr. Taylor filed a motion to dismiss the state’s petition for involuntary commitment. The remedy he sought in the motion to dismiss was an immediate release from custody. The trial court denied the motion, stating “There is a thirty-day . . . statutory right to a speedy trial, but I think there accompanies some obligation on the part of the civil respondent that differs from a

 

criminal case.” The trial court reasoned that the respondent must take some action to protect his right to a trial within the time period allowed by law.

Mr. Taylor asked the trial court to reconsider this ruling in light of this court’s decision in Boatman v. State, 39 So. 3d 391 (Fla. 1st DCA 2010) rev. granted, 43 So. 3d 690 (Fla. 2010), that a respondent is substantially prejudiced if the court grants a request by the state for a continuance at a time when the defendant has already served his criminal sentence. This court denied relief in Boatman, but only because the request for release was made for the first time in the appeal from the final judgment of involuntary commitment. The court concluded that the respondent should have sought immediate release in the trial court after the expiration of the time limit and before the trial. Mr. Taylor argued that the order denying his motion should be reconsidered on the authority of the Boatman case, because he had, in fact, demanded his immediate release in the trial court.

The trial judge reviewed the Boatman opinion and ultimately agreed that Mr. Taylor’s motion to dismiss should have been granted. The judge informed the lawyers that the state’s petition would be dismissed without prejudice. At that point, counsel for the state informed the court that the state would file an appeal from the order dismissing its petition and invoke the automatic stay provision in rule 9.310(b)(2) of the Florida Rules of Appellate Procedure. Counsel for Mr. Taylor argued that the automatic stay should be vacated because the state did not

have a reasonable likelihood of prevailing on appeal. The trial judge decided that the automatic stay would remain in place during the course of the state’s appeal.

The order dismissing the state’s petition was filed on July 16, 2010. The state filed its notice of appeal later that day with the clerk of the circuit court, but the clerk did not prepare a certified copy of the notice or otherwise transmit the notice to this court.

On September 30, 2010, the state filed a pleading designated as an “amended” petition under the Jimmy Ryce Act. On the same day, the state dismissed the appeal it had previously taken from the order dismissing its original petition without prejudice. The trial court entered an order directing that Mr. Taylor be released from custody effective October 1, 2010, but the court is now proceeding over his objection on the state’s “amended” petition for involuntary commitment. Mr. Taylor seeks review by prohibition in this court to prevent the trial court from taking further judicial action on the state’s petition.

Prohibition is an extraordinary remedy that used to restrain the unlawful use of judicial power. See State ex rel B.F. Goodrich Co. v. Trammell, 192 So. 175 (Fla. 1939); English v. McCrary, 348 So. 2d 293 (Fla. 1977). A writ of prohibition may be issued by an appellate court to prevent a lower court from acting without jurisdiction or in excess of its jurisdiction. See Peltz v. District Court of Appeal, Third District, 605 So. 2d 865 (Fla. 1992). The district courts of appeal have

 

judicial power to issue writs of prohibition and other extraordinary writs under the express provision of Article V, section 4(b)(3) of the Florida Constitution. Based on these authorities, we conclude that this court has jurisdiction and that prohibition is the proper remedy.

A proceeding under the Jimmy Ryce Act must be initiated at a time when the respondent is in lawful custody. This requirement is jurisdictional. As the supreme court stated in Larimore v. State, 2 So. 3d 101, 103 (Fla. 2008), the statute “requires that an individual be in lawful custody when the State takes steps to initiate civil commitment proceedings in order for the circuit court to have jurisdiction to adjudicate the commitment petition.” The respondent in that case was physically in custody at the time the petition was filed. However, his gain time had been forfeited unlawfully and he should have been released by that time. Because the respondent was not in lawful custody when the petition was filed, the supreme court concluded that that circuit court lacked jurisdiction to entertain the petition.

The supreme court referred in Larimore to the respondent’s custodial status at the time “when initial steps were taken” to initiate commitment proceedings. Id. at 117. There can be no question that Mr. Taylor was in lawful custody on May 5, 2002, when the first petition for involuntary commitment was filed. If that is the operative date, there is no need to consider the lawfulness of his custody after the

 

dismissal of the first petition. On the other hand, if the operative date is September 30, 2010, the filing date of the petition that is now before the circuit court, we must determine whether Mr. Taylor was in lawful custody when that petition was filed.

On this preliminary issue we conclude that the circuit court has jurisdiction only if Mr. Taylor was in lawful custody on September 30, 2010, the date of filing the petition that is now before the court. It makes no difference that he was in lawful custody on May, 5 2002, the date of the state’s first attempt to have him involuntarily committed. It would make little sense to allow the state to file a second petition for commitment after the first one is dismissed for failure to bring the respondent to trial on time, and then to conclude that the court has jurisdiction so long as the respondent was in lawful custody at the time the first petition was filed. A conclusion such as that would vitiate the time limitations set out in the statute.

It does not improve the state’s position that the original petition was dismissed without prejudice or that the state elected to style the second petition as an “amended petition.” The record reveals that the amended petition does not alter or modify the original petition in any respect. Nothing of substance was added or removed. If we were to say that the second petition somehow relates back to the first one and therefore that we need only determine whether the respondent was in lawful custody when the first one was filed, the effect of such a conclusion would

 

be to enable the state to cure a failure to meet the deadlines in the statute simply by refiling the petition. That is plainly not the case. The statutory time limits were put in place for good reason, and the courts have an obligation to enforce those time limits.

This brings us to the question of whether Mr. Taylor was in lawful custody when the state filed the second petition for involuntary commitment. To answer this question, we must first consider the effect of the order dismissing the first petition on the ground that the trial had not been held within the statutory time limit.

Section 394.916(1) states that “[w]ithin 30 days after the determination of probable cause, the court shall conduct a trial to determine whether the person is a sexually violent predator.” The supreme court concluded in State v. Goode, 830 So. 2d 817 (Fla. 2002), that the thirty-day time period in this statute is mandatory, but not jurisdictional. Subsequently, in Osborne v. State, 907 So. 2d 505 (Fla. 2005), the court held that the proper remedy for failure to meet the time limit is a dismissal without prejudice. The court explained that “[a] dismissal of a petition with prejudice would terminate the case on procedural grounds, essentially divesting the circuit court of jurisdiction,” and that would be contrary to the court’s conclusion in Goode that a failure to meet the time is not jurisdictional. Id. at 508.

A dismissal of a petition for involuntary commitment without prejudice is not a decision on the merits of the case and does not therefore preclude the filing of a subsequent petition, but it does finally conclude the pending petition. The defendant is entitled to be released from custody at that point. The state can seek involuntary commitment again in the future, but only if the respondent is taken into custody on another offense. This reading of the Osborne decision is directly supported by the opinion of the Second District Court of Appeal in the case of In re Commitment of Goode, 22 So. 3d 750 (Fla. 2d DCA 2009). There the court stated the principle as follows,

Where the State fails to bring a detainee to trial within the thirty-day period, the petition for civil commitment must be dismissed and the detainee must be released. However, unlike the running of a statute of limitations, the expiration of the thirty-day period does not forever foreclose the State from filing a new petition for civil commitment. Rather, it acts as a procedural bar to the continued detention of the detainee at that time. If the detainee is subsequently imprisoned for another offense, the State is free to file a new petition. See Ward v. State, 986 So. 2d 479, 481 (Fla. 2008).

In re Commitment of Goode, 22 So. 3d at 752. We agree with this reasoning. A dismissal without prejudice in this context must mean without prejudice to bring the action again at some time in the future.1 It could not mean without prejudice to hold the respondent in custody until the petition can be filed again.

1 Our decision on this point is limited to a dismissal for failure to comply with the mandatory time limits in the statute in a case in which the respondent has

 

This analysis puts these kinds of dismissal orders in Jimmy Ryce Act cases in the class of dismissals without prejudice that are appealable as final orders. See Carlton v. Walmart Stores Inc., 621 So. 2d 451 (Fla. 1st DCA 1993) (holding that an order dismissing a civil case without prejudice on the ground that the plaintiff failed to make timely service of process is appealable as a final order because it is a final disposition of the case pending before the court); Hunewell v. Palm Bach County, 925 So. 2d 468 (Fla. 4th DCA 2006) (holding that an order dismissing a civil case without prejudice for failure to prosecute is appealable as a final order because it finally concludes the case before the court). The phrase “without prejudice” in these cases means that the action can be initiated again at some point in the future, provided the statute of limitations has not expired. It does not mean that the pleading can be amended, as would be the case if the problem were merely that the original pleading failed to state a cause of action.

Because we conclude that the dismissal order in this case was a final order, the state had a right to appeal the order. The state also had a right to an automatic stay of the order under rule 9.310(b)(2) of the Florida Rules of Appellate Procedure and Mitchell v. State, 911 So. 2d 1211 (Fla. 2005). However, we need not decide whether the stay should have been vacated, as defense counsel argued in

completed his sentence. We do not rule out the possibility that it may be proper in some other context to dismiss a petition with leave to file an amended petition in the same case.

 

the trial court. The state voluntarily dismissed the appeal when it filed the amended petition. Assuming the stay was valid, it had no effect once the state dismissed the appeal.

The state could have elected to pursue the appeal it had filed in this court. If the court were to reverse the order, the effect would be to reinstate the original petition, and the state could have proceeded to trial on the original petition for involuntary commitment. But the state did not pursue the appeal. Instead, the state filed the notice of appeal, obtained an automatic stay, thereby preventing Mr. Taylor’s release from custody, refiled the petition for involuntary commitment and then dismissed the appeal. This course of action suggests that the state has misconstrued the effect of the order dismissing the original petition without prejudice. The state was entitled to appeal that order and perhaps to have the respondent held in custody during the appeal, but the state was not entitled to cure the failure to meet the time limit simply by filing another version of the same petition.

Although our decision to grant the petition for writ of prohibition is based on the requirements of the statute, the outcome of the case is also consistent with the broader principles that apply in involuntary commitment proceedings. The United States Supreme Court upheld the validity of the Kansas involuntary commitment statute in Kansas v. Hendricks, 521 U.S. 346 (1997), in part because it contained

strict procedural safeguards designed to ensure that the detainee is afforded due process of law. In Westerheide v. State, 831 So. 2d 93 (Fla. 2002), the Florida Supreme Court noted that the Jimmy Ryce Act shares many of the hallmarks of the Kansas statute, and the court upheld the act because it contains a “range of procedural safeguards” designed to protect the rights of those who are facing involuntary commitment. Id. at 105. In State v. Goode, supra at 826, and again in Mitchell v. State, 911 So. 2d 1211, 1218 (Fla. 2005), the supreme court stated that it would require “scrupulous compliance” with the thirty-day time limit for bringing the detainee to trial.

The prosecution of the petition in this case falls far short of the mark. After serving a fifteen-year sentence for his crime, Mr. Taylor remained in custody for nearly ten more years, based on nothing more than a finding of probable cause to believe that he should be committed as a sexual predator. The state’s failure to prosecute its petition for nearly five years after the court granted its motion for continuance could hardly be characterized as “scrupulous compliance” with the time limit for bringing the case to trial.

In summary, we conclude that Mr. Taylor was entitled to be released when the court dismissed the original petition. The state had a right to appeal the order and may have been entitled to an automatic stay pending the appeal. However, the state dismissed its appeal in this case when it submitted its amended petition, and

 

the stay was no longer in effect at that point, in any event. The dismissal of the original petition without prejudice left open the possibility of a new commitment proceeding in the future but it did not give the state the right to refile the petition in the commitment proceeding in this case. For these reasons we hold that Mr. Taylor was not in lawful custody when the amended petition for involuntary commitment was filed and that the trial court is without jurisdiction to proceed on the amended petition.

Prohibition granted.

BENTON, C.J., CONCURS. WETHERELL, J., CONCURS WITH OPINION.

 

WETHERELL, J., concurring.

I do not read the majority opinion to approve the trial court’s dismissal of the original petition based on Boatman. Indeed, the propriety of that decision is not squarely before the court because the state did not pursue its appeal of the dismissal order. Accordingly, even though I disagree with the trial court that Boatman compelled dismissal of the original petition,2 I fully concur in the majority opinion.

2 Boatman involved a respondent who objected to the state’s motion to continue the trial beyond the 30-day statutory period, whereas this case involves a respondent who, the record suggests, agreed to an indefinite waiver of the statutory trial period for strategic reasons and then did not object to his continued confinement for nearly five years before filing a motion to dismiss. There is persuasive authority suggesting that dismissal is not required under these circumstances. See Kolin v. State, 927 So. 2d 198 (Fla. 5th DCA 2006); Curry v. State, 880 So. 2d 751 (Fla. 2d DCA), rev. denied, 888 So. 2d 17 (Fla. 2004). But cf. § 394.916(2), Fla. Stat. (authorizing one continuance of not more than 120 days and stating that “[n]o additional continuances may be granted unless the court finds that a manifest injustice would otherwise occur”).

 

 

Courtesy of David Edelstein