Florida Criminal Law Opinions

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

EARL GREEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-1211

Opinion filed May 23, 2011.

An appeal from the Circuit Court for Bradford County. Mark W. Moseley, Judge.

Earl Green, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

THOMAS, J.

The appellant appeals the denial of his motion to correct illegal sentence in which he seeks additional credit for time spent in jail prior to sentencing. For the reasons discussed below, we affirm.

The appellant entered a plea of guilty to battery on a person over 65 years of age, burglary of a structure and petit theft. As part of the plea, he also admitted violating his probation imposed in another case. His written plea agreement called

for him to receive a sentence of twenty-four months’ imprisonment with credit for “133 days + 48 days on [the] VOP case.” The appellant then filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging an entitlement to more credit than stipulated in his plea agreement.

By entering a negotiated plea which called for a specific number of days to be awarded as credit, the appellant waived any claim that he was entitled to more credit than called for in that plea. See Hagan v. State, 25 So. 3d 639, 640 (Fla. 1st DCA 2009) (“The inclusion of specific language indicating the specific date from which the defendant’s credit for time served would count towards his current sentence is sufficient to demonstrate he knowingly and voluntarily waived his right to have any credit he may have accrued prior to that date count towards his current sentence.”). Moreover, a facially sufficient rule 3.800(a) motion for jail credit must: (1) provide the dates for which he is seeking credit, (2) provide the date of his sentence, and (3) allege where in the record it can be shown that he is entitled to relief. See Thomas v. State, 634 So. 2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So. 2d 429, 433 (Fla. 1998). Here, the appellant does not specifically allege where in the record (or how) it can be shown that he is entitled to relief. He merely asserts that his entitlement is clear from some unidentified records “located at the Bradford County Court House.” Finally, the Florida Supreme Court held recently in Johnson v. State, 36 Fla. L. Weekly S171 (Fla.

April 21, 2011), that when a defendant enters into a plea agreement which specifies the number of days of credit to be awarded, a challenge to the “credit-for-time served provision” of the plea is not cognizable in a rule 3.800(a) motion.

Accordingly, we AFFIRM the denial of the appellant’s motion to correct illegal sentence.

HAWKES and ROBERTS, JJ., CONCUR.

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

T.V.W.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D09-3145

Opinion filed May 20, 2011.

Appeal from the Circuit Court for Hillsborough County; Ashley B. Moody, Judge.

James Marion Moorman, Public

Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

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

KELLY, Judge.

T.V.W. appeals the trial court’s order withholding adjudication and placing

finding T.V.W. guilty of battery as a permissive lesser-included offense to the charge of attempted robbery where the elements of the crime of battery were not charged in the petition for delinquency. N.H.M. v. State, 974 So. 2d 484, 486 (Fla. 2d DCA 2008). Accordingly, we reverse the order withholding adjudication that finds T.V.W. guilty of battery and remand for further proceedings consistent with this opinion.

Reversed and remanded.

DAVIS and LaROSE, JJ., Concur.

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA,

Appellant,

v.                      Case No. 2D10-2915

JOHNNY YARN,

Appellee.

Opinion filed May 20, 2011.

Appeal from the Circuit Court for Manatee County; Debra Johnes Riva, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellee.

VILLANTI, Judge.

The State appeals the trial court’s order dismissing count II of the

firearm. Because the facts contained in the State’s traverse raised inferences sufficient to support a prima facie case of guilt, we reverse and remand for further proceedings.

The State’s probable cause affidavit against Yarn asserted that at approximately 10 p.m. on July 24, 2009, both street and aviation officers were on patrol in a high-crime area of Manatee County looking for an individual who had multiple warrants out for his arrest. As Deputy Cruz drove past a house, he saw a group of people standing in the front yard and spilling out into the street. Deputy Denmark was a short distance away in another patrol car. When Cruz shined his spotlight on the group, both he and Denmark saw an individual, later identified as Yarn, wearing all black clothing and holding a black “memorial Rob-D” T-shirt in his hand. Yarn turned and fled as soon as he saw the deputies.

As Yarn ran behind the house, Cruz and Denmark lost sight of him. However, aviation officers tracked Yarn as he ran to and crouched behind a nearby church. As the aviation officers watched, Yarn stood up, came out from behind the church, and began walking down the street while talking on a cell phone. At that point, Yarn no longer had the black T-shirt in his hand.

Patrol officers then made contact with Yarn and detained him. Yarn admitted that he ran when he saw Cruz and Denmark and admitted that he had been carrying a T-shirt when he fled. He also admitted that he had “dropped” a firearm as he ran and lost the T-shirt he was carrying. However, he denied knowing where he had dropped or lost either item. When officers went behind the church where Yarn had

been seen crouching, they found two cigar tubes containing 103 pieces of crack cocaine and a firearm lying under a black “memorial Rob-D” T-shirt. The shirt appeared to be

new and appeared to have been recently placed in that location. Based on these facts, the State charged Yarn with one count of possession of cocaine with intent to sell within 1000 feet of a place of worship and one count of carrying a concealed firearm.

Yarn subsequently filed a motion to dismiss the concealed firearm charge pursuant to Florida Rule of Criminal Procedure 3.190(c)(4).1 In that motion, Yarn alleged that none of the deputies ever saw a gun or “any indication of a gun” on Yarn either before, during, or after his flight. Yarn admitted that he told police while being detained that “[w]hen I ran behind the house I dropped something. It was a .380 handgun.” However, Yarn also alleged that “[t]he State has no evidence [as] to how or in what manner the firearm had been carried.”

In response to Yarn’s motion to dismiss, the State filed a traverse in which it asserted that Deputies Cruz and Denmark would testify under oath that they clearly saw Yarn illuminated with Cruz’s spotlight before Yarn fled and that neither of them saw him carrying a firearm in a plain or open manner. Despite the State’s traverse, the trial court granted Yarn’s motion to dismiss the carrying a concealed firearm count, specifically finding that the State had failed to establish that Yarn had concealed the firearm at the time he possessed it. The State now seeks review of this ruling.2

Rule 3.190(c)(4) provides for dismissal of a charge against a defendant when “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” “Under this rule it is the defendant’s

1Yarn also filed a motion to suppress the statements he made and the physical evidence against him. That motion is not at issue in this appeal.

2This court reviews an order on a motion to dismiss de novo. Bell v. State, 835 So. 2d 392, 394 (Fla. 2d DCA 2003).

burden to . . . demonstrate that no prima facie case exists upon the facts set forth in detail in the motion.” State v. Kalogeropolous, 758 So. 2d 110, 111 (Fla. 2000).

When faced with a motion to dismiss, the State may proceed in two ways. First, the State may concede that the facts are undisputed but may argue that inferences from those undisputed facts could nevertheless support a finding of guilt. See, e.g., State v. Williams, 873 So. 2d 602 (Fla. 5th DCA 2004) (reversing order granting a motion to dismiss even though the State stipulated to a statement of undisputed facts because reasonable inferences from those facts could support a finding of guilt).

Alternatively, if the State disputes any of the facts alleged in the defendant’s motion or if it believes there are additional material facts not alleged in the defendant’s motion, the State may file a sworn traverse. See Fla. R. Crim. P. 3.190(d); Kalogeropolous, 758 So. 2d at 111-12. In its traverse, the State need not adduce the evidence necessary to prove its case beyond a reasonable doubt. See State v. Gay, 960 So. 2d 864, 867 (Fla. 2d DCA 2007). Instead, it must bring forward facts sufficient to show only the ” ‘barest prima facie case.’ ” State v. Dickerson, 811 So. 2d 744, 746 (Fla. 2d DCA 2002) (quoting State v. Hunwick, 446 So. 2d 214, 215 (Fla. 4th DCA 1984)). To meet its burden, “the State may rely on circumstantial evidence and all inferences arising therefrom that are favorable to the State.” Dickerson, 811 So. 2d at 746; see also Gay, 960 So. 2d at 867; Bell v. State, 835 So. 2d 392, 394 (Fla. 2d DCA 2003). And to establish the “barest prima facie case,” the State must show only that a reasonable jury could find the defendant guilty of the charged crime under the most favorable construction of the evidence. See State v. Shuler, 988 So. 2d 1230, 1231

(Fla. 5th DCA 2008). Only when there is no construction of the undisputed facts and inferences therefrom that would allow a guilty verdict to be rendered should a motion to dismiss be granted. See Dorelus v. State, 747 So. 2d 368, 373 (Fla. 1999); State v. Horton, 442 So. 2d 408, 409 (Fla. 2d DCA 1983). If the State files a sworn traverse that establishes a prima facie case of guilt, the motion to dismiss must be denied. See Fla. R. Crim. P. 3.190(d); see also Kalogeropolous, 758 So. 2d at 112; Dickerson, 811 So. 2d at 746.

In the context of a charge of carrying a concealed firearm, the critical question is whether the firearm was “carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.” § 790.001(2), Fla. Stat. (2009). The critical issue is whether the firearm is concealed from the ” ‘ordinary observation’ ” of others, and ” ‘[a]bsolute invisibility to other persons is not indispensable to concealment.’ ” Ensor v. State, 403 So. 2d 349, 354 (Fla. 1981) (quoting Mularkey v. State, 230 N.W. 76, 77 (Wis. 1930)). In determining whether a firearm was concealed, “the observations of the police officer will not necessarily be dispositive.” Dorelus, 747 So. 2d at 372. Instead, the court must consider all of the circumstances and all of the inferences involved in the individual case.

For example, in Carpenter v. State, 593 So. 2d 606, 607 (Fla. 5th DCA 1992), the defendant was stopped for a possible DUI, and there was a handgun on the front seat beside her. The officer who stopped Carpenter did not immediately see the gun because it was dark where the stop occurred and Carpenter was quite heavy. As the court noted, “[h]er body may have obscured the officer’s view of the gun.” Id. Despite the fact that the officer did not immediately see the gun, the undisputed facts

showed that the grip and hammer were sticking up six inches above the level of the seat. Id. The trial court denied Carpenter’s motion to dismiss because the officer did not immediately see the gun. However, the appellate court concluded that the undisputed facts did not establish that the gun was concealed in any way despite the fact that the officer did not see it when he first looked into the car. Id. Accordingly, the court held that the trial court should have granted Carpenter’s motion to dismiss.

On the other hand, the fact that an officer clearly sees a firearm does not necessarily mean that the gun is not concealed. As one court explained:

a person who is carrying a weapon under his coat may be

carrying a concealed weapon. The fact that it is revealed to the arresting officer when the person turns and his coat

swings away sufficiently for the officer to identify it as a pistol does not keep it from being a “concealed weapon” under the law.

State v. Joseph, 506 So. 2d 493, 494 (Fla. 5th DCA 1987).

Here, while it was admittedly dark outside and Yarn was wearing black clothing, the State alleged that both deputies would testify that they clearly saw Yarn when they shined a spotlight on the group gathered in the yard. The State also alleged that both deputies would testify that they clearly saw Yarn holding a black T-shirt in his hand before he fled. However, despite their clear view of Yarn, neither deputy saw him carrying a firearm in plain or open view. These undisputed facts do not lend themselves to a single construction that only the dark of night or the deputies’ inopportune vantage points caused them not to see an otherwise unconcealed and openly carried firearm. Instead, another possible inference is that Yarn was holding the firearm under the T-shirt he was carrying, thus concealing it from the view of the police officers as well as others. Because the additional facts contained in the State’s traverse give rise to

inferences sufficient to support a prima facie case of guilt, the trial court was required to deny Yarn’s motion to dismiss.

In this appeal, as he did in the trial court, Yarn relies on Adams v. State, 987 So. 2d 1255 (Fla. 5th DCA 2008), and Davis v. State, 761 So. 2d 1154 (Fla. 2d DCA 2000), to support his argument that the charge was properly dismissed. However, while those cases present factual situations somewhat similar to Yarn’s, both of those cases involve the review of a denial of a motion for judgment of acquittal made at the close of the State’s case. See also Blackmon v. State, 53 So. 3d 1174 (Fla. 2d DCA 2011). Those cases considered whether the State’s evidence was sufficient to overcome the defendants’ reasonable hypotheses of innocence and prove the case beyond a reasonable doubt, a standard of review inapplicable to the issue of whether the State’s traverse presented “the barest prima facie case” sufficient to overcome a motion to dismiss. This significant factual distinction renders the rulings in Adams and Davis immaterial to the resolution of this case.

Because the State’s traverse presented sufficient additional facts to establish “the barest prima facie case” of carrying a concealed firearm, the trial court should have denied Yarn’s motion to dismiss. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and CRENSHAW, JJ., Concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

ANTHONY DUANE CUMMINGS,

Appellant,

v.                         Case No. 5D10-567

STATE OF FLORIDA,

Appellee.

Opinion filed May 20, 2011

Appeal from the Circuit Court for Osceola County,

Jon B. Morgan, Judge.

James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Appellant challenges his conviction based on an alleged speedy trial violation. He argues that his conviction was based on charges that arose from the same criminal episode as charges for which the speedy trial period had expired. We conclude that, although the charges all were related to illicit drugs, each involved distinct acts and distinct crimes. Therefore, they did not arise from the same criminal episode for speedy

trial purposes. See State v. Banks, 50 So. 3d 730 (Fla. 5th DCA 2010) (defendant’s charges for dealing in stolen property and possession of firearm with altered serial number, though related to charge of burglary involving theft of firearms, not part of same criminal episode); Clevenger v. State, 967 So. 2d 1039, 1041 (Fla. 5th DCA 2007) (“Crimes are deemed to be part of the same criminal episode so as to trigger the running of the speedy trial period when they are based on substantially the same conduct, even though the conduct may give rise to different consequences.”); State v. Hanna, 858 So. 2d 1248, 1250 (Fla. 5th DCA 2003) (“[W]hen different crimes are involved, they are not deemed a part of the same criminal episode unless they are based on substantially the same acts.”).

AFFIRMED.

TORPY, LAWSON and COHEN, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

M.H.-R., A CHILD,

Appellant,

v.                           Case No. 5D10-2108

STATE OF FLORIDA,

Appellee.

Opinion filed May 20, 2011

Appeal from the Circuit Court for Lake County,

Michael G. Takac, Judge.

Nancy C. Wear, B.C.S., Coral Gables, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

We affirm the trial court’s determination that M.H.-R. was guilty of resisting a law enforcement officer without violence. See Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177 (2004) (individual may be required to provide his or her name to law enforcement officer where officer has initiated a valid Terry1 stop). However, we remand for a new disposition hearing (assuming the issue has not

1 Terry v. Ohio, 392 U.S. 1 (1968).

become moot) because of the inconsistencies between the trial court’s oral pronouncement and its written order as to the length of M.H.-R.’s curfew and probationary periods.

AFFIRMED in part; REVERSED in part; REMANDED

GRIFFIN, PALMER and EVANDER, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2011

EZRA FOWLER, JR.,

Appellant,

v.                     Case No. 5D10-4490

STATE OF FLORIDA,

Appellee.

Opinion filed May 20, 2011

3.850 Appeal from the Circuit Court for Citrus County,

Richard A. Howard, Judge.

Ezra Fowler, Jr., Malone, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

On September 8, 2010, the trial court rendered an order denying Fowler’s motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Subsequently, on September 15, 2010, Fowler moved for leave to amend his motion, as provided in Spera v. State, 971 So. 2d 754 (Fla. 2007). Although leave to amend was granted, Fowler filed a notice of appeal from the September 8 order on October 6, 2010.1 He then filed his amended rule 3.850 motion seven days later. Fowler

1 That appeal is currently pending.

subsequently moved for an extension of time to file a second amended rule 3.850 motion. The circuit court’s November 29, 2010, order partially granted the motion and also denied the additional ground raised in the first amended motion.2 Fowler filed a notice of appeal from that order on December 16, 2010. This appeal deals only with those rulings.

A notice of appeal filed from an order denying a motion for postconviction relief deprives the circuit court of jurisdiction to consider an amended motion or any other motion pertaining to that postconviction proceeding. See Tellas v. State, 811 So. 2d 756, 756 (Fla. 1st DCA 2002). Likewise, after filing a notice of appeal from a final order in a postconviction proceeding, a defendant abandons any pending motions in the circuit court relating to that case. See Lopez-Merced v. State, 949 So. 2d 362, 363 (Fla. 5th DCA 2007); Moore v. State, 789 So. 2d 551, 552 (Fla. 5th DCA 2001). Because Fowler appealed the order denying relief rendered on September 8, 2010, the order entered on November 29, 2010, was a nullity. It is, therefore, vacated and the appeal therefrom is dismissed. See Meintzer v. State, 943 So. 2d 966, 968 (Fla. 5th DCA 2006).

ORDER VACATED; APPEAL DISMISSED.

TORPY, LAWSON, and COHEN JJ., concur.

2 While Fowler labels the first amendment an addendum/supplement to the original rule 3.850 motion, it is effectively an amended motion which raised an additional ground.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

SAMUEL GAMBLE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-0879

Opinion filed May 18, 2011.

An appeal from the Circuit Court for Duval County. Virginia Norton, Judge.

Samuel Gamble, pro se, Appellant.

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

PER CURIAM.

The appellant appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we reverse.

The appellant was convicted of possession of a firearm by a convicted felon (count one) and failure to appear (count two) and was sentenced in accordance with a negotiated plea agreement to concurrent terms of four years’ imprisonment

with a three-year minimum mandatory for count one for possessing a firearm. The appellant asserts that there is no factual basis to support the imposition of the three-year minimum mandatory sentence. “An appellant can challenge the factual basis for his plea in a rule 3.850 motion.” Franklin v. State, 645 So. 2d 166, 166 (Fla. 4th DCA 1994); see also Jones v. State, 647 So. 2d 182 (Fla. 1st DCA 1994) (“When a 3.850 movant alleges that his plea had no factual basis, and the trial court fails to attach to its order those portions of the record establishing that basis, the order does not conclusively show that the movant is entitled to no relief”). Here, the appellant alleges that he did not have actual possession of the firearm because it was found in the trunk of a car he was driving, which, if true, would not support the minimum-mandatory sentence imposed. See Sims v. State, 44 So. 3d 1222 (Fla. 5th DCA 2010) (“In the context of possession of a firearm by a convicted felon, this court has interpreted subsection 775.087(2)(a)1.’s use of ‘actually possessed’ to require evidence that the defendant actually carried the firearm in order to impose the three-year minimum mandatory”); Johnson v. State, 855 So. 2d 218 (Fla. 5th DCA 2003) (“The three-year minimum mandatory applies, but only if it is shown that Appellant ‘actually possessed’ the firearm, which we construe to mean carried on his person”).

In response, the state asserts in part that the denial should be affirmed because the appellant agreed to the three-year minimum mandatory portion as a

part of his plea. However, this Court has held that a defendant’s agreement to be subject to a minimum-mandatory sentence for possessing a firearm does not constitute an admission that the defendant was in actual possession of the firearm. See Turpin v. State, 651 So. 2d 176 (Fla. 1st DCA 1995). Thus, we reverse and remand for the trial court to attach records conclusively refuting the appellant’s claim or to hold an evidentiary hearing. We note that if the trial court finds that a factual basis did not exist to support the imposition of the mandatory-minimum portion of the sentence, the appellant would not be entitled to automatic resentencing. Instead, the remedy would be for the State to be allowed to withdraw from the plea and proceed to trial on the original charges or for the striking of the minimum-mandatory sentence only if the state agreed. See Barthel v. State, 862 So. 2d 28 (Fla. 2d DCA 2003) (holding that where an agreed upon minimum-mandatory sentence was illegal, remedy was not automatic resentencing, instead, the state would be given the opportunity to agree to resentencing or to withdraw from the plea agreement and proceed to trial on the original charges).

REVERSED and REMANDED for proceedings consistent with this opinion. WOLF, WEBSTER, and VAN NORTWICK, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

T.K.B., a child,

Petitioner,

v.                  CASE NO. 1D11-1984

STEPHENY DURHAM,

Superintendent of the Duval

Regional Juvenile Detention Center and STATE OF FLORIDA,

Respondents.

Opinion filed May 18, 2011.

Petition for Writ of Habeas Corpus — Original Jurisdiction.

Matt Shirk, Public Defender, and Robert W. Mason, Assistant Public Defender, Jacksonville, for Petitioner.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondents.

PER CURIAM.

validity of her secure detention, pending the outcome of a juvenile delinquency proceeding. We granted the petition in an unpublished order and directed that respondent release the child. By this opinion, we now state the reasons for granting relief.

Petitioner entered a guilty plea to resisting an officer without violence, a misdemeanor. The child was placed on home detention care, but failed to appear at the adjudication hearing and a custody order issued. The child was later detained and placed in secure detention to await the adjudication hearing.

An order detaining a child in the custody of the state pending a juvenile delinquency hearing must comply with the statutes authorizing juvenile detention. See R.W. v. Soud, 639 So. 2d 25 (Fla. 1994). Section 985.24, Florida Statutes, provides that a child may be detained only for the specific reasons given in the statute. Additionally, section 985.245 states that, in the absence of a specific statutory exception, an order placing a child in detention “shall be based on a risk assessment of the child.” The risk assessment is done uniformly throughout the state on a standardized document known as a Risk Assessment Instrument (“RAI”).

Juvenile detention determinations involve a two-step process. If a juvenile qualifies for detention under the “admission criteria” of the RAI and subsections 985.255(1)(a) through (j), the inquiry proceeds to the tallying of points for various factors to yield a “risk assessment,” and the RAI score must establish a need for detention. R.A.P. v. Parkins, 994 So. 2d 414, 415 (Fla. 1st DCA 2008). According to the criteria set by the RAI, a child who has a score of twelve or more points qualifies for secure detention, a child who has a score of seven to eleven points qualifies for home detention, and a child who scores below seven points does not qualify for any form of detention. The Department of Juvenile Justice (“DJJ”) scored petitioner’s RAI at 22 points, including ten points for absconding, one point for the pending misdemeanor and three points for “aggravation.”

Although the pre-disposition report recommended probation, the state objected contending that petitioner was at high risk to reoffend because she had a history of running away from home. The circuit court continued petitioner’s detention for almost a month while awaiting a new pre-disposition report. Petitioner’s parents refused to pick her up from detention and the circuit court found that there were no other viable options for her placement.

Section 985.255(1) provides that a child placed on home detention may continue to be detained if the child is alleged to be an escapee from a nonresidential commitment program, a probation program or conditional release supervision. At that point the child is eligible for secure detention. Nothing in the statute provides for secure detention for absconding from any situation other than those three programs.

Section 985.03 does not define the term “abscond.” Black’s Law Dictionary (9th ed. 2009), defines “abscond” as to “depart secretly or suddenly, especially to avoid arrest, prosecution, or service of process,” or “to leave a place, usually hurriedly, with another’s money or property.” DJJ has adopted rule 63D-10.004(5), Florida Administrative Code, which states that absconding

occurs when a supervised youth goes in a clandestine manner out of the jurisdiction of the court in order to avoid the legal process, or when the youth hides, conceals, or absents himself or herself with the intent to avoid the legal process. Mere absence or not appearing for appointments is not absconding, but may constitute a technical violation of supervision.

The rule further provides that within one working day after determining that the youth has absconded, the Juvenile Probation Officer shall file with the court an Affidavit for An Order to Take Into Custody and an Affidavit/Petition for Violation of Probation. No such affidavits were filed in this case.

Rule 63D-10.004(5) includes a statement that a “youth reported by parent(s)/guardian(s) to have run away is considered an absconder.” However, this definition of “absconding” to mean “run away” does not appear in the statute. As this court has repeatedly held, the power to place juveniles charged with a delinquent act in detention is entirely statutory in nature. S.W. v. Woolsey, 673 So. 2d 152, 154 (Fla. 1st DCA 1996). Therefore, strict compliance with the statute is required. W.C. v. Smith, 898 So. 2d 1137, 1138 (Fla. 1st DCA 2005).

In addition to the improper score of ten points for absconding, DJJ erroneously scored one point for the pending misdemeanor, which was not a separate offense. Nor were the three points for “aggravation” supported by the record. Subtracting those fourteen points improperly included in the RAI, petitioner correctly scored eight points, which did not qualify her for secure detention.

The circuit court is strictly prohibited from ordering detention because of a lack of a better alternative. § 985.24(2)(d). Detention because of concern for the child’s well-being is not authorized. J.J. v. State, 31 So. 3d 295 (Fla. 3d DCA 2010). Nor is detention authorized where a parent expresses fear that the child might run away, take drugs or engage in sexual activity. K.E. v. Dep’t of Juvenile Justice, 963 So. 2d 864, 867 (Fla. 1st DCA 2007).

Finally, we note that this is the eighteenth juvenile habeas petition this court has considered from Duval County in the last thirteen months. Ten of the petitions have been granted, three petitions have been denied on the merits and the remaining cases were dismissed as moot. This is an inefficient use of limited judicial resources, especially where the rule of law is clear: if the statute fails to authorize secure detention, a juvenile cannot be so held. Z.B. v. Dep’t of Juvenile Justice, 938 So. 2d 584, 585 (Fla. 1st DCA 2006). In a similar circumstance, this court noted that

Juvenile detention is a matter that is controlled by legislation. It is not for us, as judges, to question the wisdom of the legislation. Rather, our task is simply to carry it out. Section 985.255 establishes the criteria for detaining a child, pending the outcome of a juvenile delinquency case.  A decision to detain a child must be made according to the statutory criteria.

K.E., 963 So. 2d at 868.

PETITION GRANTED.

DAVIS, VAN NORTWICK, and CLARK, JJ., CONCUR.

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA,

Appellant,

v.                          Case No. 2D10-1689

FARRAH FITZGERALD,

Appellee.

Opinion filed May 18, 2011.

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

Pamela J. Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellant.

J. Kevin Hayslett, Clearwater, for Appellee.

NORTHCUTT, Judge.

The State appeals the dismissal of its charge against Farrah Fitzgerald for felony driving under the influence. The circuit court dismissed the case after determining that the State could not prove that Fitzgerald was in actual physical control of a vehicle at the time of the alleged offense. We reverse because the State may prove the charge with evidence that the defendant was physically in a vehicle with the capability to operate it, regardless of whether she was actually operating it at the time.

A police officer found Fitzgerald sitting, intoxicated, in the driver’s seat of a parked car. She readily produced the car keys upon the officer’s request. She was charged with driving under the influence, a third-degree felony pursuant to section 316.193(2)(b)(1), Florida Statutes (2008), because she allegedly has two prior DUI convictions. She filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190. The court held a hearing on both the motion to dismiss and a motion to suppress. After hearing the arresting officer’s testimony and the parties’ arguments, the circuit court granted the motion to dismiss.

At the hearing, the officer testified that he saw a Pontiac stopped in an intersection in Largo at around midnight. The car’s lights were on; the officer testified that he saw “the lights on pointing towards residential areas,” so we assume he was referring to the headlights rather than the interior lights. The officer saw a pair of legs hanging out of an open passenger door, which caused him to be concerned. The officer stopped and approached, observing that the car’s engine was not running. As he walked by the passenger side, the officer observed that a male passenger’s legs were hanging out of his side of the car, and he saw that the passenger was breathing and

that his hands were empty. The officer then heard a voice say either “I’m not driving” or “I wasn’t driving.” The voice came from the driver’s side, and the officer then observed Fitzgerald sitting in the driver’s seat.

The officer testified that he looked over to the driver’s side and saw the car keys in Fitzgerald’s right hand. On cross-examination, the officer explained that he asked her for the keys and that she produced them in her right hand. His “assumption was that they were always in her right hand because [he] never saw them any other

place.” But he agreed that he did not know if the keys were in her hand the whole time or if they came from somewhere else.

The officer then approached the driver’s door, which was also open, and engaged Fitzgerald. He observed that her speech was slurred and that she smelled of alcohol. He conducted a DUI investigation and ultimately arrested Fitzgerald. Her breath tests revealed alcohol levels of .201 and .218, which exceeded the .08 threshold established by section 316.193(1)(c).

Section 316.193(1) makes it a crime for a person to be “driving or in actual physical control of a vehicle within this state” while under the influence of alcohol or drugs. Fitzgerald was not driving the car, so the State proceeded on a theory of actual physical control. To prove this element, “the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.” Fla. Std. Jury Instr. (Crim.) 28.1.

In this case, Fitzgerald was physically in the vehicle. The question here is whether, as a matter of law, the undisputed evidence fails to show that she had the capability of operating the vehicle. To survive a motion to dismiss, the State must show a prima facie case, with all inferences resolved in the State’s favor. State v. James, 928 So. 2d 1269, 1271 (Fla. 2d DCA 2006). Our review is de novo. Id. at 1270.

In some cases, DUI convictions have turned on inferences from circumstantial evidence that the defendants had driven motor vehicles to the locations at which they were arrested. See, e.g., State v. Boynton, 556 So. 2d 428 (Fla. 4th DCA 1989). Here, the circuit court was skeptical of that approach because there was a passenger present, leading to a possible inference that the passenger drove to the

current location and then switched seats with Fitzgerald. We note that a court should not grant a motion to dismiss “simply because it concludes that the case will not survive a motion for judgment of acquittal at trial.” State v. Jaramillo, 951 So. 2d 97, 99 (Fla. 2d DCA 2007). But we see another problem with the circuit court’s analysis.

The circuit court’s focus on whether the State could prove that Fitzgerald drove the car to the location of her encounter with the officer overlooked that the statute is just as concerned about the driver’s ability to drive the car from there. The legislature defined the crime to include not only driving but also actual physical control “to enable the drunken driver to be apprehended before he strikes.” Griffin v. State, 457 So. 2d 1070, 1072 (Fla. 2d DCA 1984) (quoting Hughes v. State, 535 P.2d 1023, 1024 (Okla. Crim. App. 1975)). This court agreed with the conclusions of the Oklahoma court:

[A]n intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the

public. The danger is less than where an intoxicated person is actually driving the vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away. He therefore had

“actual physical control” of the vehicle within the meaning of the statute.

Id. (quoting Hughes, 535 P.2d at 1024).

The Florida jury instruction speaks in terms of “capability to operate the vehicle.” Capability means “practical ability.” Webster’s New World College Dictionary 216 (4th ed. 2002). In analyzing the necessary proof of this element, the First District reviewed cases from Alabama, where the courts review the totality of the circumstances to determine whether someone is in actual physical control. Jones v. State, 510 So. 2d

1147, 1148 (Fla. 1st DCA 1987) (citing Cagle v. City of Gadsden, 495 So. 2d 1144 (Ala. 1986)). Jones noted that Alabama finds the following factors to be relevant: active or constructive possession of the ignition key, position in the driver’s seat, and a vehicle that is operable. 510 So. 2d at 1148. In Florida, a vehicle’s inoperability is a defense rather than an element. Id. at 1149.

Here, Fitzgerald was sitting in the driver’s seat, and she readily produced the car keys. There was no evidence that she needed to search for the keys or that she retrieved them from the passenger. We add to this the additional facts that the car was stopped in an intersection with its lights on. As Griffin noted, a legitimate inference to be drawn is that Fitzgerald placed herself behind the wheel and at any time could have started the car and driven away. 457 So. 2d at 1072.

This interpretation was followed in State, Department of Highway Safety & Motor Vehicles v. Prue, 701 So. 2d 637 (Fla. 2d DCA 1997), which reviewed the issue of actual physical control in the context of a driver’s license suspension. In holding that competent evidence supported the hearing officer’s finding that Prue was in actual physical control, we relied on evidence showing that “the keys to the vehicle were either in the ignition or near enough for Prue to use them to start the vehicle and drive away.” Id. at 638. Likewise, here, the keys were close enough for Fitzgerald to use them to start the car and drive away. See Baltrus v. State, 571 So. 2d 75 (Fla. 4th DCA 1990) (finding evidence sufficient to defeat motion to dismiss when defendant was slumped over steering wheel in front seat of car in parking lot although keys were in his hand rather than in the ignition); Fieselman v. State, 537 So. 2d 603 (Fla. 3d DCA 1988) (finding evidence sufficient to defeat motion to dismiss; although defendant was lying

down on front seat of car in parking lot, keys were in the ignition and lights were on); see also Lamore v. State, 983 So. 2d 665, 669 & n.5 (Fla. 5th DCA 2008) (describing offense as one of general intent that punishes the intentional act of “placing oneself in actual physical control of a motor vehicle,” which furthers the legitimate governmental interest of “protecting the public from the danger of an impaired person who places himself behind the wheel and could at any time and with little difficulty start the car and drive away”).

The facts before the circuit court satisfied the State’s burden to prima facie demonstrate that Fitzgerald was in actual physical control of a motor vehicle while under the influence of alcohol. Accordingly, we reverse the dismissal of this charge and remand for further proceedings.

Reversed and remanded.

LaROSE and CRENSHAW, JJ., Concur.

Courtesy of David Edelstein

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Third District Court of Appeal

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

Opinion filed May 18, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D09-2505

Lower Tribunal No. 07-21141

Stevenland Davis,

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 Shannon P. McKenna, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

Before GERSTEN and LAGOA, JJ., and SCHWARTZ, Senior Judge. PER CURIAM.

Stevenland Davis appeals his conviction and sentence for two counts of second-degree murder. We reverse and remand for a new trial because the trial

court fundamentally erred in instructing the jury that intent to kill was an element of manslaughter by act, a lesser-included offense of second-degree murder. See State v. Montgomery, 39 So. 3d 252 (Fla. 2010).

Reversed and remanded for a new trial.

Courtesy of David Edelstein

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