Florida Criminal Law Opinions

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. 3D10-350

Lower Tribunal No. 09-876-A

V.C., a juvenile,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Abby Cynamon,

Judge.

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

Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ. ROTHENBERG, J.

V.C. appeals an order withholding adjudication of delinquency and placing her on one year probation for felony battery. Because felony battery is not a category one, necessarily lesser included offense of aggravated battery with a deadly weapon, and the charging document failed to allege the requisite elements of felony battery, we reverse.

The State filed a petition for delinquency alleging that V.C. committed an aggravated battery by using a deadly weapon pursuant to section 784.045(1)(a)(2), Florida Statutes (2009). Prior to trial, V.C.’s attorney moved to suppress V.C.’s statements to law enforcement. The motion was denied and the trial court conducted an adjudicatory hearing. The evidence introduced at the adjudicatory hearing was that V.C. became involved in a fight with another girl, which escalated into a melee involving approximately fourteen other girls, and in the process V.C. cut the victim with a razor blade. At the conclusion of the hearing, the trial court concluded that the evidence was insufficient to find that V.C. had committed an aggravated battery, the charged offense, but did support a felony battery adjudication under section 784.041, a lesser included offense of aggravated battery. See § 784.041, Fla. Stat. (2009).

V.C. contends that the trial court erred in restricting the testimony of her expert witness, Dr. Klein, regarding the voluntariness of her pretrial statements; allowing the State to introduce her pretrial statements at the adjudicatory hearing;

and finding her guilty of the uncharged crime of felony battery.

We briefly address V.C.’s first two arguments. Section 90.704, Florida Statutes (2009), provides that an expert may base his or her opinion on facts made known to him or her at or before trial. And although the statute specifically authorizes opinions based on evidence the expert did not personally observe, see Dorbad v. State, 12 So. 3d 255, 257 (Fla. 1st DCA 2009), such testimony “should be excluded when the facts testified to are of such nature as not to require any special knowledge or experience in order for the jury to form its conclusions.” Id. at 258 (quoting Boyer v. State, 825 So. 2d 418, 419-20 (Fla. 1st DCA 2002)).

In determining whether the trial court erred in limiting Dr. Klein’s testimony, we note that the abuse of discretion standard applies to rulings regarding the admissibility of expert testimony. Rodriguez v. State, 413 So. 2d 1303, 1304 (Fla. 3d DCA 1982). The record reflects that Dr. Klein was permitted to testify at length about: the results of the tests she administered to V.C.; her interview of V.C.; and her assessment of V.C.’s intellect. Further, Dr. Klein was permitted to opine as to whether she believed V.C. knowingly, intelligently, and voluntarily waived her rights prior to being interrogated by law enforcement. Because the additional testimony she may have provided was not of such a nature as to require special knowledge or experience, especially where the issues were tried before the judge rather than a jury, we do not find the trial court abused its

discretion in limiting the scope of the testimony. We also conclude that there was competent substantial evidence to support the trial court’s finding that, based on the totality of the circumstances, V.C. knowingly, intelligently, and voluntarily waived her rights per Miranda1 prior to agreeing to provide her oral and written statements to the police.

Although we conclude that V.C.’s statements were properly admitted at trial and the trial court did not abuse its discretion in limiting Dr. Klein’s testimony, we agree with V.C. that the trial court erred in withholding adjudication of delinquency as the offense of felony battery as a lesser included offense of aggravated battery.

Instruction 8.4 of the Florida Standard Criminal Jury Instructions, as summarized below, provides that to prove the crime of aggravated battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of battery.

1. The defendant

intentionally touched or struck the victim against his/her will, or

intentionally caused bodily harm to the victim.

2. The defendant in committing the battery

a. intentionally or knowingly caused permanent disability or permanent disfigurement to the victim, or

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

b. used a deadly weapon

The petition for delinquency charged V.C. with committing an aggravated battery upon the victim “by actually and intentionally striking and/or cutting [the victim] about the back and/or body, with a deadly weapon, to wit: a razor blade and, or any sharp object,” which is the form of aggravated battery listed in 2b of instruction 8.4 of the standard jury instruction for aggravated battery. Felony battery is a lesser offense of aggravated battery. See Fla. Std. Jury Instr. (Crim.) 8.4.

Category one necessarily included lesser offenses are treated differently than category two permissive lesser included offenses. Category one lesser offenses are necessarily included in the offense charged and only require proof to support a conviction for the lesser included offense. In contrast, category two lesser included offenses require, in addition to sufficient proof to support a conviction of the lesser included offense, that the accusatory pleading allege the necessary elements of the lesser included offense. I.T. v. State, 694 So. 2d 720, 723-24 (Fla. 1997); see also J.O. v. State, 42 So. 3d 803, 804 (Fla. 3d DCA 2010) (“A conviction based upon a category two lesser-included offense is sustainable over a proper objection only if: (1) the charging document includes all of the elements of the lesser; and (2) the evidence admitted would support a conviction on the lesser.”) (footnote omitted); Lester v. State, 25 So. 3d 623, 625 (Fla. 3d DCA

2009) (affirming Lester’s conviction for aggravated battery, a permissive lesser included offense of second-degree murder, because the information sufficiently alleged the elements of aggravated battery and the evidence supported the uncharged crime).

Although instruction 8.4 of the Florida Standard Criminal Jury Instructions provides that felony battery is a category one lesser included offense of aggravated battery, which would normally only require sufficient evidence at trial to support a conviction of the uncharged lesser offense, in the commentary that follows, albeit in fine print, it specifies that “[t]he lesser included offense of Felony Battery is only applicable if element 2a [permanent disability or permanent disfigurement] is charged and proved.” (emphasis added). Because 2b (with a deadly weapon) was charged, not 2a (permanent disability or permanent disfigurement), V.C. could not be adjudicated delinquent as to the uncharged felony battery as a lesser included offense of the charged offense of aggravated battery.

This finding, however, does not end our analysis, as the State contends that because V.C. failed to object to the trial court’s pronouncement, the error was not properly preserved for appellate review. As the State correctly argues, the contemporaneous objection rule requires that absent an objection at trial, the alleged error can be raised on appeal only if fundamental error has occurred. See State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991). For error to be so fundamental

that it may result in a reversal on appeal, though not properly preserved below, it must amount to a denial of due process. Ray v. State, 403 So. 2d 956, 960 (Fla. 1981).

Instructing a jury or convicting a defendant on an erroneous lesser offense does not necessarily constitute fundamental error. Ray, 403 So. 2d at 960. In Ray, the Florida Supreme Court found:

[I]t is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.

Id. at 961 (footnote omitted). Although felony battery is an offense that is lesser in degree and penalty than aggravated battery, because we conclude that V.C. did not have an opportunity to object to the trial court’s consideration of felony battery as a lesser included offense or to the trial court’s pronouncement adjudicating her delinquent of felony battery, and defense counsel did not request consideration of or argue the uncharged crime, we find no waiver by V.C. and that fundamental error occurred.

V.C.’s trial counsel did not have an opportunity to object to the trial court’s finding because, as this was a juvenile proceeding and the case was tried to the court rather than to a jury, no jury instructions were prepared. Additionally, the record reflects that V.C. did not request that the trial court consider any lesser

included offenses, neither side argued that the evidence supported a finding that V.C. committed a felony battery, and V.C. took no action that in any way invited the error. Thus, under Ray, fundamental error occurred. See also Williamson v. State, 510 So. 2d 335, 337-38 (Fla. 4th DCA 1987), disapproved on other grounds, State v. Sanborn, 533 So. 2d 1169 (Fla. 1988) (rejecting the State’s argument that the defendant failed to preserve his objection to the lesser included offense where the case was tried non-jury, defense counsel was not presented with a jury charge to object to, and defense counsel did not invite the error).

In conclusion, we find fundamental error and reverse the judgment withholding an adjudication of delinquency as to the lesser included offense of felony battery because: (1) felony battery is a category two permissive lesser included offense of aggravated battery; (2) the accusatory pleading does not plead the requisite elements of felony battery; (3) this was a non-jury trial where defense counsel had no notice based on the charging document, argument by opposing counsel, or comment by the trial court, that V.C. could be subjected to a finding that she committed the uncharged crime of felony battery; and (4) neither V.C. nor defense counsel invited the error.

We therefore instruct the trial court to vacate the delinquency finding as to felony battery and to enter a withhold of adjudication of delinquency as to the necessarily included lesser offense of simple battery. See § 924.34, Fla. Stat.

(2010) (“When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.”); see also Gould v. State, 577 So. 2d 1302, 1305 (Fla. 1991) (“quash[ing] that part of the district court decision directing the trial court to adjudicate Gould guilty” of sexual battery, and “remand[ing] with instructions that district court instruct the trial court to adjudicate Gould guilty of simple battery, as the only necessarily included lesser offense supported by the evidence”) (footnote omitted). We note that V.C.’s appellate counsel properly conceded that this Court had the authority to vacate V.C.’s withhold of adjudication of delinquency as to aggravated battery and to direct the trial court to enter a withhold of adjudication of delinquency as to simple battery.

We specifically recommend that the Criminal Jury Instruction Committee submit a modification to jury instruction 8.4 to clearly reflect that felony battery is only a lesser included offense to aggravated battery if the charging document charges that the defendant, in committing the battery, intentionally caused permanent disability or permanent disfigurement as charged in section 784.045(2)(a), because the instruction, as written, is misleading.

Affirmed in part; reversed in part; and remanded with directions.

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. 3D11-938

Lower Tribunal No. 04-7772

Anthony Nottage,

Appellant,

vs.

State of Florida,

Appellee.

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

Anthony Nottage, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge. EMAS, J.

Anthony Nottage timely filed an initial motion for postconviction relief pursuant to Florida Rule of Criminal Procedure, 3.850. The trial court entered an order summarily denying the motion. The order simply states:

[T]his Court having reviewed the motion, the State’s response thereto, the court files and records in this case, and being otherwise fully advised in the premises therein, hereby denies Defendant’s Motion for Post Conviction Relief on the following ground: Defendant’s Motion for Post Conviction Relief is legally insufficient and/or refuted by the record.

In Spera v. State, 971 So. 2d 754 (Fla. 2007) the Supreme Court discussed the differing treatment accorded postconviction claims that are legally insufficient and those claims which, while legally sufficient, are conclusively refuted by the record:

[R]ule 3.850 distinguishes between claims that are facially insufficient and those that are facially sufficient but are also conclusively refuted by the record. A determination of facial sufficiency will rest upon an examination of the face, or contents, of the postconviction motion. Because the determination of facial sufficiency under rule 3.850 is one of law and involves an evaluation of the legal sufficiency of the claim alleged, the evidence in the record will ordinarily be irrelevant to such an evaluation.

Id. at 758.

The order in this case denies the motion based upon the alternative findings that the claims were conclusively refuted by the record or that the motion was legally insufficient. To the extent the denial of the motion was based upon the

record, the Court failed to attach to its order any portion of the files or record that conclusively show appellant was entitled to no relief. See Fla. R. Crim. P. 3.850(d).

To the extent the denial of the motion was based upon the legal insufficiency of the motion, the trial court failed to follow the procedure outlined in Spera when determining that an initial motion for postconviction relief is legally insufficient:

[W]hen a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion . . . . [W]e hold that the proper procedure is to strike the motion with leave to amend within a reasonable period. We do not envision that window of opportunity would exceed thirty days and may be less. The striking of further amendments is subject to an abuse of discretion standard that depends on the circumstances of each case. As we did in Bryant [v. State, 901 So. 2d 810 (Fla. 2005)] we stress here, too, that “we do not intend to authorize ‘shell motions’-those that contain sparse facts and argument and are filed merely to comply with the deadlines, with the intent of filing an amended, more substantive, motion at a later date.” Bryant, 901 So.2d at 819.

We also stress that our decision is limited to motions deemed facially insufficient to support relief- that is, claims that fail to contain required allegations. When trial courts deny relief because the record conclusively refutes

the allegations, they need not permit the amendment of pleadings.1

Id. at 761-62.

We therefore reverse and remand this cause with directions that the trial court either: 1) enter an amended order which attaches those portions of the files and record that conclusively establish that appellant is entitled to no relief; or 2) permit appellant an opportunity to amend his motion to state a legally sufficient claim, and for proceedings thereafter consistent with this opinion.

1 Of course, as discussed supra, an order which denies relief on this basis must attach the relevant portions of the files or record that conclusively establish a defendant is entitled to no relief. Fla. R. Crim. P. 3.850(d).

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

BRETT FENSTER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D07-1983

[May 18, 2011]

GERBER, J.

The defendant appeals his conviction and sentence for attempted second degree murder. He raises five arguments: (1) the trial court erred in denying his motion for judgment of acquittal; (2) the trial court erred in overruling his objection to the standard jury instruction for attempted second degree murder; (3) the trial court fundamentally erred in giving the standard jury instruction for the lesser offense of attempted manslaughter; (4) the prosecutor’s improper comments during closing argument require a new trial; and (5) the trial court erred in failing to give him credit for time served. We reject the first four arguments but agree with the fifth argument. We write to address the third, fourth, and fifth arguments only.

The trial court instructed the jury on the lesser included offense of attempted manslaughter as follows, in pertinent part:

To prove the crime of attempted manslaughter, a lesser included offense, the State must prove the following element beyond a reasonable doubt: [the defendant] committed an act which was intended to cause the death of [the alleged victim] and which would have resulted in the death of [the alleged victim] except that someone prevented [the defendant] from killing [the alleged victim] or he failed to do so.

(emphasis added). The defendant now argues that instruction

constitutes fundamental error because it required the jury to find the

defendant intentionally attempted to kill the victim. We reject that

argument pursuant to our opinion in Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010). There, the defendant raised the same argument. Id. at 73. We concluded that no fundamental error occurred because “the crime of attempted manslaughter requires an intent to commit an unlawful act that would have resulted in the victim’s death rather than an intent to kill.” Id. at 74-75. We also concluded that the instruction, as worded, did not confuse the jury because the jury found the defendant guilty of attempted second degree murder. Id. at 75. “Thus, the jury found the defendant intended the act that was ‘imminently dangerous’ and demonstrated a ‘depraved mind.’” Id.

We apply our conclusions in Williams to this case. As in Williams, we also certify the following questions of great public importance:

Does the standard jury instruction on attempted manslaughter constitute fundamental error?

Is attempted manslaughter a viable offense in light of State v. Montgomery, 39 So. 3d 252 (Fla. 2010)?

Further, as in Williams, we certify conflict with the first district’s contrary decision in Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009).

As for the prosecutor’s closing argument, the defendant identifies fifteen comments which he alleges were improper. The defendant concedes, however, that in response to those fifteen comments, he objected only twice. One objection was on the basis that the prosecutor’s comment was not supported by the evidence. We agree with the trial court’s decision to overrule that objection because the comment was a reasonable inference based on the totality of the evidence. The second objection occurred when the prosecutor directly addressed the defendant. The trial court sustained the objection, struck the comment, and admonished the prosecutor to make no such further comments. We conclude that the trial court’s response cured the prosecutor’s action.

The defendant argues that because he objected to the two comments addressed above, this court may review the remaining thirteen comments to determine whether reversible error occurred. In support, the defendant cites, among other cases, Martinez v. State, 761 So. 2d 1074 (Fla. 2000). There, our supreme court held that “it is appropriate to consider both the preserved and unpreserved errors in determining whether the preserved error was harmless beyond a reasonable doubt.” Id. at 1082-83. Pursuant to that authority, we have considered both the preserved and unpreserved errors and conclude that any errors were

harmless beyond a reasonable doubt. See Ventura v. State, 29 So. 3d 1086, 1089 (Fla. 2010) (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986)) (“The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”) (emphasis added in Ventura). We also conclude that the cumulative effect of the prosecutor’s comments does not rise to the level of fundamental error. See Boyd v. State, 45 So. 3d 557, 560 (Fla. 4th DCA 2010) (“Improper comments rise to the level of fundamental error only where the error ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’”) (citation omitted).

The defendant correctly notes that this is not the first time we have been asked to review allegedly improper comments during closing argument by the same prosecutor in this case. In Fenster v. State, 944 So. 2d 477 (Fla. 4th DCA 2006), we held that the prosecutor’s improper comments during closing argument in the first trial of this case warranted a new trial. Id. at 479. Our opinion there, however, focused on our conclusion that the prosecutor “made several comments that were unsupported by the evidence.” Id. We also observed that the defendant’s trial counsel “properly preserved this issue for appellate review by timely objecting to the improper prosecutorial remarks and by stating the specific legal ground upon which his objections were based, i.e., lack of evidentiary support.” Id. at 479 n.1 (citation omitted). During the second trial at issue here, though, the defendant objected to only one comment as being unsupported by the evidence, which objection the trial court properly overruled. While we would summarize many of the prosecutor’s remaining comments in the second trial as being both unprofessional and unnecessary to obtain a conviction, those comments do not rise to the level of harmful or fundamental error.1

As for the defendant’s jail credit, we held in our review of the first trial that “the trial court erred in calculating the number of days [the defendant] spent in county jail before sentencing and therefore did not give him full credit for time served.” Id. at 480. We advised the trial court “to revisit this, if necessary, upon retrial.” Id. at 481. Upon retrial

1 By this opinion, we do not mean to suggest that we condone the prosecutor’s unprofessional comments. We are as troubled with the prosecutor’s behavior as we are with the fact that the defendant’s trial attorney did not object to those comments. As stated above, however, we decide today only whether the prosecutor’s comments rise to the level of harmful or fundamental error.

and conviction, however, the trial court did not give the defendant full credit for the time served at the time of his sentencing on May 7, 2007. We presume that the trial court’s failure to comply with our previous holding was inadvertent. Therefore, we remand with direction to the trial court to credit the defendant with the 1,373 days of time served at the time of his sentencing on May 7, 2007.

Conviction affirmed; remanded for correction of jail credit. TAYLOR, J., and PEGG, ROBERT L., Associate Judge, concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana Gardiner, Judge; L.T. Case No. 04-898CF10A.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

JUAN GUARDADO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D07-4422

[May 18, 2011]

POLEN, J.

Appellant, Juan Guardado, appeals his judgment, convicting him of DUI manslaughter (Unlawful Blood Alcohol Level (UBAL)) and sentencing him to ten years’ imprisonment. We reverse Guardado’s conviction and remand for a new trial.

On October 7, 2005, Guardado was involved in a three-vehicle crash on I-595 in Broward County, Florida. The two passengers in Guardado’s car were killed. When Trooper Anderson arrived at the scene, he saw Guardado in the driver’s seat with injuries to his face; the other two occupants did not appear to be alive. Guardado was extracted from the car and taken to Broward General Medical Center, where Trooper Nardiello requested that blood samples be taken.1

On October 14, law enforcement received the toxicology results from the Examiner’s Office.2 Thereafter, a six-count information was filed, charging Guardado with two counts of DUI manslaughter; two counts of

1 Two samples were taken: the first at 4:57 a.m. and the second at 5:57 a.m. The blood specimens were sent by Trooper Nardiello to the Broward County Medical Examiner’s Office.

2 The results for the first blood kit were .215 and .218 grams ethanol alcohol per 100 milliliters of blood; the results for the second kit were .197 and .194.

DUI manslaughter (UBAL); and two counts of DUI property damage.3 Guardado filed a written plea of not guilty to the two counts of DUI manslaughter (UBAL). The State then notified Guardado that it sought to subpoena his medical records. Guardado objected pursuant to sections 395.3025(4) and 456.057, Florida Statutes (2005), but the court granted the State authority to subpoena the medical records based on the State’s compelling interest. Guardado then filed an amended motion to suppress, arguing that the State’s motion to subpoena the medical records was based solely on the results of the blood draw done at the request of Florida Highway Patrol (FHP).

At the hearing on Guardado’s motion to suppress, the State stipulated that FHP did not have probable cause to take the legal blood. The hearing then proceeded to the issue of the medical blood.4 There is no transcript from the hearing on Guardado’s objection to the subpoena; however, the transcript from the hearing on Guardado’s motion to suppress references the hearing on Guardado’s objection to the State’s subpoena. The transcript from the suppression hearing reflects that at the hearing on Guardado’s objection to the subpoena, the only evidence that the State relied on was the fact that there was legal blood. There was n o other testimony, n o other evidence presented, and nothing proffered by the State as far as the odor of alcohol or anything considered to be impairment of the normal facilities. At the suppression hearing, the State admitted that there was no information in the State’s file that could have constituted independent probable cause at the time the medical blood subpoena was issued.

The trial judge entered an order suppressing the legal blood draw and denying the suppression of the medical blood evidence, finding that pursuant to Hunter v. State, 639 So. 2d 72 (Fla. 5th DCA 1994), and McAlevy v. State, 947 So. 2d 525 (Fla. 4th DCA 2006), the relevance of the medical blood evidence was obvious and that a compelling state interest existed to support its admission. Guardado then entered a nolo contendere plea, specifically reserving the right to appeal the denial of the dispositive motion to suppress. Guardado was sentenced to ten years’ Florida State Prison, followed by five years’ probation, on each count, to be served concurrently. This appeal followed.

3 The State entered a nolle prosequi on the DUI manslaughter counts and the DUI property damage counts.

4 The legal blood draw refers to the draw done at the request of FHP; the medical blood draw refers to the draw performed by the hospital in order to treat Guardado for his injuries.

On appeal, Guardado argues that the lower court reversibly erred by failing to suppress the medical blood because the subpoena issued for the medical blood was based solely on the legal blood, which the State stipulated was unlawfully obtained. Further, Guardado argues that the State failed to establish the relevance of the medical blood because it failed to establish a nexus between the medical blood and the crash. The State argues that the lower court properly found that the medical blood was relevant because even if the medical blood evidence was initially released pursuant to a subpoena based solely on the unlawfully seized legal blood evidence, any error was harmless in that the other facts in the probable cause affidavit would have also justified the issuance of the subpoena. The State further argues that any crash plus a death always makes medical blood relevant.

Although legal conclusions are reviewed under a de novo standard of review, a trial court’s ruling on a motion to suppress is clothed with the presumption of correctness on appeal. McNamara v. State, 357 So. 2d 410, 412 (Fla. 1978). Patient medical records are protected under Florida’s right to privacy as well as statute. Art. I, § 23, Fla. Const.; McAlevy, 947 So. 2d at 529. Section 395.3025(4)(d), Florida Statutes, is

a legislative attempt to balance a patient’s privacy rights against legitimate access to medical records. Johnson v. State, 814 So. 2d 390, 393 (Fla. 2002). Section 395.3025(4)(d) outlines the procedure for obtaining medical records under subpoena:

(4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent. . .

(d) In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.

§ 395.3025(4)(d), Fla. Stat. (2005). If the patient objects, a hearing must

b e held to determine if the records are relevant to a criminal investigation. Cerroni v. State, 823 So. 2d 150, 152 (Fla. 5th DCA 2002). Thus, an intrusion into a fundamental privacy right can be met by demonstrating a compelling state interest. Shaktman v. State, 553 So. 2d 148, 151 (Fla. 1989). A compelling state interest exists upon a showing that the materials contain information relevant to an ongoing criminal investigation. McAlevy, 947 So. 2d at 529 (citing State v. Rivers, 787 So. 2d 952, 953 (Fla. 2d DCA 2001)). When the State seeks a subpoena for medical records, the court can rely on the State’s argument

and the accident report or probable cause affidavit to establish relevance. Id.

In Cerroni, Cerroni filed a motion to suppress, asserting that his blood was drawn after the accident without a warrant and without the State following the dictates of Florida’s implied consent law. 823 So. 2d at 151. The State stipulated that there was no probable cause to support the blood draw, and the trial court granted the motion to suppress. Id. The State then filed its notice of intent to subpoena medical records that “pertain[ed] to the blood sample taken from [Cerroni] subsequent to a vehicular accident involving a car driven by the defendant which was tested in part for alcohol content.” Id. In other words, since the “legal blood draw” results had been suppressed, the State was seeking the “medical blood draw” results. Id. Cerroni objected to the subpoena, and after a hearing, the trial court approved its issuance and also acknowledged that the order was dispositive. Id.

On appeal, the Fifth District held that the State had the obligation and burden to demonstrate relevancy, via evidence, before the subpoena could issue, and the State’s failure to do so below was fatal to the order on appeal. Id. at 152. However, the court held that the State was not precluded from again seeking the medical records through a subpoena, because the State did not, in bad faith, fail to comply with section 395.3025(4)(d): “If the state subpoenas the medical records again and, upon objection, proffers evidence which demonstrates the relevance of the blood-alcohol results, then the trial court may allow the issuance of the subpoena.” Id.

Here, the trial court relied on Hunter and McAlevy in denying Guardado’s motion to suppress the medical blood. In Hunter, the court stated that although it appeared obvious that the State sought the records to determine if Hunter had been drinking alcohol on the day of the accident, the State never argued to the trial judge the relevancy of the patient records to the criminal investigation. 639 So. 2d at 73. However, the Fifth District held that the accident report, coupled with the fact that the other driver died as a result of the two-car accident, made the relevancy of the documents obvious. Id. In McAlevy, the court held that in determining whether the State had shown a nexus between the medical records and the pending criminal investigation, a trial court can “rely upon the state’s argument and the probable cause affidavit (akin to an accident report, as in Hunter).” 947 So. 2d at 530 (emphasis added).

Hunter is distinguishable from the present case because in Hunter there was record evidence presented by the State to show both a

compelling state interest and that the medical records sought were relevant to the criminal investigation. Here, aside from the unlawfully obtained legal blood evidence, the State failed to show a nexus between the medical records sought and the pending investigation. Instead, the State simply relied on the inadmissible legal blood to obtain the medical blood. The State did not rely on any lawful evidence which showed any nexus between Guardado’s medical blood and th e traffic crash investigation, i.e., no police reports, arrest affidavits, or other documents were presented to the court. Finally, the State’s theory, “a crash plus a death always makes medical blood relevant,” is not the law.

The “crash plus death” standard has been held to create only part of the basis to establish relevance. For example, in Hunter the court noted that although the State failed to argue the relevancy of the medical records to the criminal investigation, the court found that “the accident report, coupled with the fact that the other driver died . . . [made] the relevancy of the documents obvious.” Hunter, 639 So. 2d at 73 (emphasis added). Similarly, in McAlevy, the court stated that the lower court was correct in relying on the “state’s argument and the probable cause affidavit (akin to the accident report in Hunter).” 947 So. 2d at 530 (emphasis added). Thus, although the State correctly contends that it can properly rely upon the probable cause affidavit and argument to establish relevance pursuant to Hunter and McAlevy, there is no evidence in the record that the State actually relied on the probable cause affidavit at the hearing on Guardado’s objection to the issuance of the subpoena. Although there is no transcript in the record of said hearing, the State’s acknowledgment at Guardado’s hearing on his motion to suppress, that it did not proffer any other proof other than the legal blood, proves that it did not rely on the probable cause affidavit at the hearing to establish relevance. Consequently, the State’s “crash plus death” argument, standing alone, falls short of the relevancy requirements set forth in Hunter and McAlevy.

We hold that Cerroni is indistinguishable from the present case and reverse the trial court’s order denying the suppression of the medical blood because the State failed to establish a nexus between the medical blood and the crash. However, on remand, the State is not precluded from again seeking the medical records through a subpoena if it proffers evidence which demonstrates the relevance of the medical blood evidence, as its actions below did not rise to the level of bad faith. See Cerroni, 823 So. 2d at 152 (holding that “the state is not precluded from again seeking the medical records through a subpoena, because the state did not in bad faith fail to comply with section 395.3025(4)(d)”; “[i]f the state subpoenas the medical records again and, upon objection, proffers

evidence which demonstrates the relevance of the blood-alcohol results, then the trial court may allow the issuance of the subpoena.”).

Reversed.

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

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case No. 05-20749 CF10A.

Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

SHAUNA-ANN DILLON-WATSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-2845

[May 18, 2011]

WARNER, J.

Shauna-Ann Dillon-Watson was charged with possession of methylenedioxymethamphetamine (“ecstasy”) a n d possession of cannabis. After the trial court denied her motion to suppress, which was deemed dispositive of the case, she pled to the charges. She now appeals her convictions, arguing that the trial court erred in denying her motion to suppress. Because we conclude that the officer conducted an investigatory stop without founded suspicion, we reverse.

At the suppression hearing, Deputy Abrams of the Broward Sheriff’s Office testified that he was dispatched after police received an anonymous call regarding a female selling ecstasy to her ex-boyfriend seated in a gold Maxima presently in a Wal-Mart parking lot. The deputy found a gold Maxima in the lot with a female in the driver’s seat and approached the vehicle. Appellant Shauna Dillon-Watson was seated in the car with her ex-husband. The deputy, who was in full uniform, asked what they were doing. Dillon-Watson stated that she and her ex-husband were exchanging their child, because the parking lot was a neutral spot. There was a child in a car seat in the back. The deputy then told them about the anonymous tip, and the couple laughed. The deputy called for backup and told them, “I’d like to see your ID’s and I’ll just take a quick look at your vehicles and if everything checks out okay, you guys will be good to go.” Both of them provided the officer with identification. He went to the teletype and checked their backgrounds. It took between five and ten minutes to get the teletype results. When he finished, the deputy told them that “you guys came back [with no warrants].” He then said, “Let me just take a quick look at your vehicles,

and then if you guys are good, you’ll be on your way.” They said, “Okay, yeah, go ahead.” The deputy found drugs in a clear bag under the driver’s front seat where Dillon-Watson was seated, and she was charged with possession.

The deputy testified that h e believed h e was performing an investigative stop when he approached the vehicle. Because the tipster’s description matched Dillon-Watson, she would not have been free to leave. If Dillon-Watson had attempted to leave the scene, he would have issued a BOLO for her. And while he could not state how Dillon-Watson expressed assent to search her vehicle, he maintained that he had consent.

The state admitted at the hearing on the motion to suppress that it could not justify an investigatory stop based upon the anonymous tip. It argued, however, that the stop constituted a consensual encounter, and Dillon-Watson consented to the search of her vehicle. The defense maintained that the stop was investigatory, and Dillon-Watson did not voluntarily consent to the search. The trial court denied the motion to suppress, finding the motion dispositive of the case. After entering her plea to the offense and being convicted, she appeals.

In Popple v. State, 626 So. 2d 185 (Fla. 1993), the Florida Supreme Court explained that there are three levels of police-citizen encounters. The first level is a consensual encounter where a citizen is free to leave, and thus constitutional safeguards are not invoked. The second level involves an investigatory stop where an officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. It requires a well-founded, articulable suspicion of criminal activity. The third level of encounter is an arrest which must be supported by probable cause. Dillon-Watson contends that the state failed to show that this was either a consensual encounter or a valid investigatory stop and thus the trial court erred in denying her motion to suppress. We agree.

A consensual encounter involves “minimal police contact.” Id. at 186. “During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them.” Id. The citizen is free to leave. On the other hand, a person is seized in the constitutional sense when, based upon all the circumstances, a reasonable person would not feel free to leave. See G.M. v. State, 19 So. 3d 973, 978 (Fla. 2009). As the court said in Miller v. State, 865 So. 2d 584 (Fla. 5th DCA 2004), no single factor is dispositive. “Among the factors that the court should consider in its analysis are the place and

time of the encounter, the number of officers, and the words and actions of the officers.” Id. at 587.

In Miller, three officers in uniform, who had received an anonymous tip of drug activity at a home, approached the home and encountered the appellant leaving. The officers engaged her in a discussion and told her they “needed to speak with her reference some possible drug activity.” Miller subsequently allowed police into the house and allowed a search which revealed drugs. Th e court applied the totality of the circumstances analysis, discussing the number of uniformed officers involved as well as the fact that the incident occurred at appellant’s home. However, the court stressed the officers’ informing the appellant that they had a “need” to speak with her regarding drug activity. The Fifth District concluded that a reasonable person could conclude that the officers’ “need” was based upon some bona fide authority to detain her, rather than a mere desire to follow up on an old anonymous tip. This convinced the court that the encounter was not objectively consensual.

Similarly, in McDonnell v. State, 981 So. 2d 585 (Fla. 1st DCA 2008), the court held that a consent to search was a mere acquiescence to a show of authority where the officers came to the defendant’s home at 4:00 o’clock in the morning, told him that they were investigating an ATM theft, and asked him whether he had anything in the house regarding the theft. Although at first refusing consent to search, the defendant eventually agreed, and items in the theft were found. The court reversed the denial of the motion to suppress, finding that under the totality of the circumstances, the consent was not voluntary.

In this case, the totality of the circumstances show that the “consent” to search the vehicle was not voluntary, if there was consent at all. After receiving a specific tip, the officers located a vehicle matching the description in the tip in the parking lot of a mall. The officers were in their marked sheriff’s vehicle. They got out of their vehicle and approached Dillon-Watson’s vehicle. Both were in full uniform. Deputy Abrams asked both appellant and her passenger why they were there. When they explained to him that they were exchanging their child in a neutral place, the officer told them he was investigating the tip which described both them and their vehicle. He then asked for their identification. He said, “I’d like to see your ID’s and I’ll just take a quick look at your vehicles and if everything checks out okay, you guys will be good to go.” Once he ran the identifications, which did not reveal any outstanding warrants, he then approached them again and said, “Let me just take a quick look at your vehicles, and then if you guys are good, you’ll be on your way.” The deputy said that they in some manner

indicated that it was “okay.” In searching he found the drugs which formed the basis for the possession charge.

Based upon the totality of the circumstances, we cannot conclude that Dillon-Watson would have felt free to leave during this encounter. From the beginning, she was informed by two uniformed officers that they were investigating a tip of drug activity in her vehicle. This was not some vague allegation but contained details describing her vehicle and both herself and her ex-husband. They were focused on Dillon-Watson as a suspect in a criminal investigation. The officer asked for their identifications, but told them if they checked out and he could look in their vehicle, they would be “good to go.” In other words, until he was allowed to search the vehicle, they would not be “good to go.” Any reasonable person would consider that the officer would not let her go until the officer had searched the vehicle. Dillon-Watson was seized. The consent, such as it was, was not voluntary but an acquiescence to a show of authority.

As the state conceded at the hearing before the trial court that it could not uphold the stop and search based upon the anonymous tip, we need not discuss further whether the search could be justified on that basis. See Maldonado v. State, 992 So. 2d 839, 842 (Fla. 2d DCA 2008) (“On appeal, the State cannot avoid the effect of its concession in the trial court of a fact material to the disposition of [the defendant’s] motion [to suppress].”).

Concluding that the search of appellant’s vehicle was not based upon a voluntary consent, we hold that the search violated the appellant’s Fourth Amendment rights. We thus reverse and remand with directions to vacate her convictions and discharge her.

STEVENSON and GERBER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey Levenson, Judge; L.T. Case No. 08-22058 CF10A.

Gustavo Frances, Fort Lauderdale, for appellant.

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

JARED S. FOX,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-2940

[May 18, 2011]

ON ORDER TO SHOW CAUSE

PER CURIAM.

We have already affirmed the trial court’s denial of appellant’s fifth Rule 3.850 motion for postconviction relief which was untimely and successive. Appellant has persistently raised meritless challenges to the 2003 revocation of his probation. Appellant’s abuse of postconviction process interferes with the administration of justice and damages the remedy for others. See McCutcheon v. State, 44 So. 3d 156, 161 (Fla. 4th DCA 2010).

We issued an order requiring appellant to show cause why this court should not impose the sanction of no longer accepting his pro se filings as to this case. See State v. Spencer, 751 So. 2d 47 (Fla. 1999). Appellant has responded but fails to excuse his abuse of process. He contends that, when this court granted him a belated appeal of his resentencing in 2007, see Fox v. State, 997 So. 2d 420 (Fla. 4th DCA 2008) (affirming the belated appeal granted in case number 4D07-3474), this opened up a new two-year window to bring postconviction challenges. He argues, therefore, that his latest postconviction motion is not untimely, nor successive. We reject this argument.

Appellant filed two distinct Rule 3.850 motions challenging the 2003 revocation of his probation which were fully litigated, denied, and affirmed before the 2007 belated appeal. See Fox v. State, 949 So. 2d 212 (Fla. 4th DCA 2007); Fox v. State, 956 So. 2d 465 (Fla. 4th DCA 2007). The belated appeal granted in 2007 concerned appellant’s 2006

resentencing only. See Fox v. State, 921 So. 2d 701 (Fla. 4th DCA 2006) (reversing and remanding for resentencing because sentencing was a critical stage requiring defendant’s presence). Appellant thereafter filed two more postconviction motions again challenging the 2003 revocation of his probation. These successive motions were denied and affirmed on appeal. See Fox v. State, 977 So. 2d 589 (Fla. 4th DCA 2008); Fox v. State, 4 So. 3d 1239 (Fla. 4th DCA 2009). The trial court properly denied this fifth postconviction motion as untimely and successive. In this motion, appellant again raised variants of a meritless claim that he has raised in each of his last two motions.1 We have repeatedly reviewed the claim which we find wholly without merit.

All things must come to an end, and so it is with postconviction challenges. We therefore direct the clerk of this court to no longer accept filings from appellant directed at his conviction and sentence in Palm Beach circuit court case number 99-13662 unless they are signed by a member in good standing of The Florida Bar.

WARNER, STEVENSON and CIKLIN, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T. Case No. 1999CF013662AXX.

Jared S. Fox, Florida City, pro se. No appearance required for appellee.

1 The claims are focused on discrepancies regarding the serial number of the $20 bill that the undercover officer used to buy drugs from appellant. The officer testified at the 2003 VOP hearing that he bought the drugs from appellant with the bill, but appellant did not have the $20 bill in his possession when he was arrested. The discrepancies regarding the serial number of the bill provide no basis for postconviction relief under the circumstances of this case.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

ERIC WILEY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-3272

[May 18, 2011]

POLEN, J.

Appellant, Eric Wiley, appeals his judgment, convicting him of second-degree and third-degree murder, and sentencing him to life in prison. We vacate Wiley’s conviction for second-degree murder and remand for resentencing on Wiley’s conviction for third-degree murder.

Wiley was charged by information with: Count I (second-degree murder of Dwight Starks); Count II (third-degree murder of Dwight Starks); Count III (aggravated battery of Aaron Stoudemire with a firearm); Count IV (aggravated assault of Aaron Stoudemire with a firearm); and Count V (possession of a firearm by a convicted felon). On January 11, 2008, Wiley learned that his sister Rosica (“CC”) Mosely and Aaron Stoudemire were involved in a domestic dispute. Karen Darvelle, a member of Wiley’s church, testified that on the day in question she was at church, and that Wiley was at the church with a man named Peter Clark. She was talking to Wiley when he received a phone call. She then heard Wiley say, he “don’t like no trouble.” Wiley and Clark then left in Wiley’s SUV. Upon arriving at CC’s house, Wiley got out of the SUV and confronted Stoudemire with a gun in his hand. Subsequently, the gun discharged resulting in the death of Dwight Starks.1 Three eyewitnesses to the shooting testified: Wiley, Aaron Stoudemire (the first cousin of Starks), and Brandon Christie (Stoudemire’s friend).

1 There is no dispute that Starks had nothing to do with the dispute between Wiley, Stoudemire and Mosely, and was standing some distance away when Wiley struck Stoudemire with the gun.

Stoudemire testified to the following. He and CC had an argument about a cell phone and it became physical. The argument then continued outside, and about five minutes later, he saw Wiley running at him with a gun in his right hand. Wiley told him, “lay down, I’m going to kill you.” Wiley then hit him in the head with the gun and the gun went off. Stoudemire testified that when Wiley struck him in the head with the gun, Wiley’s finger was on the trigger. Christie testified that when he saw Wiley hit Stoudemire on the side of the head with the gun, the gun went off. Christie further testified that he did not see anyone struggle over the gun.

On the same day, Detective Gerwan spoke with Wiley in an interview room at the Stuart Police Department. At trial, the recording from the interview was admitted into evidence. During the interview, Wiley stated that Stoudemire was punching CC when he arrived, that he saw blood on CC’s shirt, and that CC’s mouth was bleeding. However, Wiley did state that CC was going inside when he pulled up to the house. Wiley also admitted that he didn’t see a gun in Stoudemire’s hand. Regarding the shooting, Wiley stated that while he and Stoudemire were fighting, the gun fell out, and when he retrieved the gun, it discharged while Stoudemire was trying to take the gun from him. When he heard Starks was dead, Wiley said he felt bad and turned himself in.

Other testimony was also presented at trial. CC testified that she was in the house watching TV for five to ten minutes when she heard about the shooting; she did not see what happened outside. She did testify, however, that Wiley and Stoudemire were friendly and never saw them argue. Michael James Duhart testified that he was doing lawn work on his mother’s property with his son, when he noticed a man emerge from a tan SUV with a black semi-automatic in his hand and heard the man say: “What the F is the problem here?” As he saw the man raise the gun up, he made a rapid exit. He then heard three rapid gun shots. Duhart’s son testified that he saw a man take a gun from behind his back and raise it up. A couple of minutes, after he lost sight of the man, he heard gun shots.

Mark Chapman, Firearm Examiner, Indian River Crime Laboratory, testified that the firearm2 has three safeties, and in order for this weapon to accidently fire, all three would have to malfunction. Chapman further testified that assuming that all the safeties were working properly, one would have to pull the trigger for the firearm to discharge. Chapman found no reason to believe that the safeties were not working properly

2 A Glock model 23 .40 caliber semi-automatic pistol.

and testified that the gun would not discharge from being dropped or from blunt trauma.

Wiley moved for a judgment of acquittal as to Count I and Count II, arguing that the State failed to negate that the death of Starks was an accident. The trial court denied the motion. Wiley was then convicted on all five counts and sentenced to life in prison on Count I. No sentence was imposed for Count II.

On appeal, Wiley argues the trial court erred in denying his motion for judgment of acquittal because the State failed to establish that the killing was not accidental or that Wiley acted with a depraved mind. We agree with Wiley that his conviction for second-degree murder should be reversed. However, as we find no error in Wiley’s conviction for third-degree murder, we remand for the trial court to resentence Wiley for third-degree murder.

The standard of review on a motion for judgment of acquittal is de novo. Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003). Generally, an appellate court will not reverse a conviction that is supported by competent substantial evidence. Id. A motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. Id. In meeting its burden, the State is not required to “rebut conclusively, every possible variation of events” which could b e inferred from the evidence, but must introduce competent evidence which is inconsistent with the defendant’s theory of events. Id. Once the State meets this threshold burden, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. Id. However, “[t]he United States Constitution requires that criminal convictions must rest upon a determination that the defendant is guilty beyond a reasonable doubt of every element of the crime with which he has been charged.” Michelson v. State, 805 So. 2d 983, 985 (Fla. 4th DCA 2001) (citing State v. Harbaugh, 754 So. 2d 691, 694 (Fla. 2000)).

Section 782.04(2), Florida Statutes (2008), provides:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree . . . .

In the context of second-degree murder, a n act is imminently dangerous to another and evinces a “depraved mind” if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and (2) is done from ill will, hatred, spite or an evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life. Bellamy v. State, 977 So. 2d 682 (Fla. 2d DCA 2008); Michelson, 805 So. 2d at 985. However, “extremely reckless behavior itself is insufficient from which to infer any malice. Moreover . . . an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent.” Light v. State, 841 So. 2d 623, 626 (Fla. 2d DCA 2003); McDaniel v. State, 620 So. 2d 1308 (Fla. 4th DCA 1993); Williams v. State, 674 So. 2d 177, 178 (Fla. 2d DCA 1996). Further, “[a]lthough exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim,” and “[h]atred, spite, evil intent, or ill will usually require more than an instant to develop.” Light, 841 So. 2d at 626.

The State relies on Gibbs v. State, 904 So. 2d 432, 435 (Fla. 4th DCA 2005). In Gibbs, this court held that pointing a loaded gun at the head of the victim and then firing is an act imminently dangerous to another and evincing a depraved mind regardless of human life and sufficient evidence to prove second-degree murder. However, this case is factually distinguishable from Gibbs. Here, the evidence failed to prove that Wiley acted with a depraved mind and with an indifference to human life, the second and third prongs under Bellamy.

First, CC testified that she considered Wiley and Stoudemire to be friendly with one another, there was no other evidence to establish the hatred and spite requirements of a depraved mind. Second, although Gibbs holds that pointing a gun at an individual and then firing evinces a depraved mind, according to the three eyewitnesses to the shooting, this is not what happened in this case. Stoudemire and Christie both testified that Wiley hit Stoudemire over the head with the gun and the gun discharged. Wiley claimed that there was a scuffle and that the gun discharged in Wiley’s attempt to secure the gun. In either situation, the factual scenario does not establish that Wiley acted with a depraved mind or with an indifference to human life, two requirements necessary to sustain a conviction for second-degree murder. Although a person of ordinary judgment would know that hitting another over the head with a loaded gun is reasonably certain to do serious bodily injury to another, it is not an action evincing a depraved mind or of such a nature that the act itself indicates an indifference to human life. Thus, we hold that

Wiley’s conduct was less a result of malice and more of extremely reckless behavior, which is insufficient from which to infer any malice.

The jury also convicted Wiley of third-degree murder. If an aggravated battery results in death, it can be third-degree murder. Sheridan v. State, 799 So. 2d 223, 225 (Fla. 2d DCA 2001); see also Elkin v. State, 636 So. 2d 570 (Fla. 3d DCA 1994); Garcia v. State, 574 So. 2d 240, 241 (Fla. 1st DCA 1991); Johnson v. State, 423 So. 2d 614, 615 (Fla. 1st DCA 1982). We find the evidence sufficient to sustain Wiley’s conviction for third-degree murder. Therefore, we vacate Wiley’s conviction for second-degree murder, and remand this matter to the trial court to sentence Wiley for his conviction of third-degree murder.

Reversed and remanded for further proceedings consistent with this opinion.

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

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Sherwood Bauer, Jr., Judge; L.T. Case No. 432008CF000073A.

Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

ERNESTO CROCE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-4712

[May 18, 2011]

LEVINE, J.

The issue presented is whether the trial court erred by failing to strike a juror for cause. We find the trial court erred in refusing to strike the juror under the particular facts of this case, and we reverse and remand for a new trial.

Appellant was charged with possession of cocaine. At trial, during voir dire, the counsel for appellant questioned the jury venire about the presumption of innocence. Appellant’s counsel stated that “right now, without hearing any evidence, does everybody agree. . . that [appellant] is not guilty or does anybody have a problem with that idea?” One juror (“Juror One”) voiced concerns, stating that she had been a victim of a rape with a deadly weapon in the past. Juror One stated that she understood appellant was presumed not guilty but that she had a “problem” since she had been a victim. She said she did not think it was going to “bias” her, but she explained, “I know he is not guilty, but in my head I want to be like, oh . . . he is here, you know.”

When defense counsel inquired if she could put aside her past experience as a victim, Juror One stated:

To be honest, I’m not sure. Coming here and hearing it was a criminal trial — I mean it’s a little hard for me to be in a courtroom as it is . . . .

My last experience was not a good one. So I have been trying

knowing that this is — it has nothing to do with my personal

case, but I don’t know if I can be one hundred percent open minded . . . .

The question you proposed, rather than listening to the prosecution where — like, it took me on a different spin where I was like, oh, I know what I’m supposed to say but I don’t feel that way.

Defense counsel challenged Juror One for cause based on the fact that she stated that she was afraid of letting her own “traumatic experience . . . filter in.” The state pointed to Juror One’s own statement that she could be fair and impartial. The trial court denied the challenge for cause, and defense counsel used a peremptory challenge to strike Juror One.

Later, after the defense had used all of its peremptory challenges, defense counsel moved for an additional peremptory challenge to strike another juror (“Juror Two”), claiming that the defense was forced to use a peremptory challenge for Juror One, because the trial court denied the defense’s cause challenge. The trial court denied the additional peremptory challenge for Juror Two. The jury was accepted, subject to the objections regarding the failure to strike Juror One for cause and the failure to give defense counsel an additional preemptory challenge to strike Juror Two. The defendant was convicted by this jury and this appeal ensues.

The Florida Supreme Court has stated that “[w]here an appellant claims he was wrongfully forced to exhaust his peremptory challenges because the trial court erroneously denied a cause challenge, both error and prejudice must be established.” Conde v. State, 860 So. 2d 930, 941 (Fla. 2003). The test for determining if a potential juror can serve is “whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984). The supreme court has instructed lower courts as follows:

When a party seeks to strike a potential juror for cause, the trial court must allow the strike when “there is basis for any reasonable doubt” that the juror had “that state of mind which w[ould] enable him to render an impartial verdict based solely o n the evidence submitted and the law announced at the trial.” Courts have held that ambiguities or uncertainties about a juror’s impartiality should be resolved in favor of excusing the juror.

Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007) (citations omitted). In order to preserve the denial of a cause challenge of a prospective juror for appellate review, the defendant must first challenge the prospective juror for cause and then object again before the jury is sworn. Id. In the present case, appellant challenged Juror One for cause and renewed the objection prior to the jury being sworn.

Therefore, the question for our review is whether Juror One’s stated concerns that she could not remove her own experience as a victim from her potential service as a juror compromised her competence to serve on the jury. Juror One stated that she hoped she could be fair and would abide by the court’s instructions to the jury. The “mere fact that a juror gives equivocal responses does not disqualify that juror for service.” Kopsho v. State, 959 So. 2d 168, 170 (Fla. 2007). If the juror’s responses are equivocal enough that the prospective juror “cannot presume the defendant to be innocent until proven guilty,” then the prospective juror should be excused for cause. Id. at 172.

We find that the statements by Juror One were such that appellant’s objection for cause should have been granted by the trial court. In the present case, Juror One stated in great detail her concerns about serving as a juror, emanating from the fact that she was previously a victim of a brutal crime. Though she later nodded when asked if she could be fair and impartial, this answer did not constitute sufficient rehabilitation under the circumstances, and we find that her responses were, at best, ambiguous. We believe that Juror One’s concerns raised a reasonable doubt about her ability to be impartial in this case, and we hold that the trial court’s denial of the cause challenge was error.

Appellant also established prejudice from the failure to strike Juror One for cause. A defendant demonstrates prejudice from the “expenditure of a peremptory challenge to cure the trial court’s improper denial of a cause challenge . . . if a defendant exhausts all remaining peremptory challenges and can show that an objectionable juror has served on the jury.” Busby v. State, 894 So. 2d 88, 96-97 (Fla. 2005). “This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted.” Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990).

In this case, appellant was compelled to use a peremptory challenge to strike Juror One, who should have been stricken for cause. Appellant was compelled to use all of his peremptory challenges and request

additional peremptory challenges which were denied by the trial court. Appellant also specifically moved for an additional peremptory challenge to strike Juror Two, which the trial court denied. Appellant was compelled to accept the jury, including Juror Two, due to the failure of the trial court to strike the first prospective juror for cause.

In summary, we find that the trial court erred in not granting appellant’s cause challenge for Juror One. Appellant has demonstrated prejudice from this error by the fact that Juror Two was seated on the jury, and appellant was denied the opportunity to strike that juror peremptorily due to the fact that appellant was forced to use a preemptory strike for Juror One, who should have been struck for cause by the trial court. We therefore reverse and remand for a new trial.

Reversed and remanded. WARNER and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez-Powell, Judge; L.T. Case No. 08-9120 CF10A.

Carey Haughwout, Public Defender and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

KEVIN THOMAS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-4721

[May 18, 2011]

POLEN, J.

Appellant, Kevin Thomas, appeals the order of the trial court, adjudicating him guilty of possession of cocaine with intent to sell, and sentencing him to six years in prison. We reverse and remand for a new trial.

This case involves a discovery violation regarding the testimony of the State’s witness Detective Tianga, who arrested Thomas for possession of cocaine with intent to sell pursuant to a search warrant, obtained based on information given by an informant. Defense counsel initially objected to Tianga testifying as an expert in street level narcotics during the State’s direct examination of Tianga, arguing that the State failed to list Tianga as an expert. At a sidebar conference, the State admitted that it had not listed Tianga as an expert, and listed him only as a Category A witness in discovery. The trial judge then stated that he was going to conduct a Richardson1 inquiry and asked defense counsel: “Tell me why that would have prejudiced you.” Defense counsel stated that he was prejudiced because if he had known, he would have had the opportunity to present his own expert to testify that the packaging of the drugs could be consistent with personal use. The trial judge then told defense counsel, “You could always call in any witness you want to show that it’s not packaged for sale, that it was packaged for personal use.” Defense counsel asked that if the court determined that it was not a Richardson violation, that he be allowed to provide the State with a list of witnesses that he might choose to call to rebut the State’s expert’s testimony. The

1 Richardson v. State, 246 So. 2d 771 (Fla. 1971).

trial judge said he would allow that, and then if the State was not prejudiced, the defense expert would be allowed to testify. The trial judge concluded that “maybe there was a violation here, but it shouldn’t be prejudicial to the defense” and proceeded to allow Tianga to testify as an expert. The State then tendered Tianga as an expert in street level narcotics. The court asked: “Any objection?” and defense counsel responded: “No.” Tianga then testified that, in his expert opinion, the drugs were packaged for sale and were not for personal use. The jury returned a guilty verdict. This appeal followed.

On appeal, Thomas argues that the trial court reversibly erred by failing to make an adequate Richardson inquiry. Specifically, Thomas argues that the trial court only addressed the issue of what the prejudice was to Thomas, without considering whether the violation was inadvertent or willful, or trivial or substantial. Additionally, Thomas argues that the trial court further erred by relieving the State of its burden of disproving procedural prejudice on the discovery issue, and shifting the burden of proving prejudice to Thomas. The State argues that Thomas did not preserve the issue for appeal, and that even if he did, the trial court granted the remedy which Thomas requested and Thomas did not object to the adequacy of the remedy in the trial court.

“Where a defendant fails to timely object to a discovery violation or to request a Richardson hearing, the defendant does not preserve the point for appellate review.” Major v. State, 979 So. 2d 243, 244 (Fla. 3d DCA 2007) (citing Celestine v. State, 717 So. 2d 205, 206 (Fla. 5th DCA 1998)). However, “[t]here are no exact ‘magic words’ or phrases which must be used by the defense in order to necessitate the [Richardson] inquiry; only the fact that a discovery request has not been met.” Jones v. State, 32 So. 3d 706, 710 (Fla. 4th DCA 2010) (citing Smith v. State, 7 So. 3d 473, 506 (Fla. 2009)). “Once a trial court has notice of a discovery violation, the court must conduct a Richardson hearing to inquire about the circumstances surrounding the state’s violation of the discovery rules and examine the possible prejudice to the defendant.” Jones, 32 So. 3d at 710.

Based on defense counsel’s initial objection, the side-bar conversation regarding the discovery violation, and defense counsel’s notification to the trial court that the State did not list Tianga as an expert, all while Tianga was on the witness stand, we hold that Thomas timely objected to the State’s discovery violation, thus preserving the issue on appeal. See Pickel v. State, 32 So. 3d 638, 639-40 (Fla. 4th DCA 2009)(finding preservation of alleged discovery violation when raised on the first day of trial); Jones, 32 So. 3d at 709-10 (finding preservation of alleged

discovery violation when raised before the state’s direct examination); State v. Evans, 770 So. 2d 1174, 1182 (Fla. 2000) (finding preservation of alleged discovery violation when raised during the state’s direct examination); Smith v. State, 7 So. 3d 473, 505-06 (Fla. 2009) (finding preservation of alleged discovery violation when raised after the state’s direct examination); and Powell v. State, 912 So. 2d 698, 700-01 (Fla. 2d DCA 2005) (finding preservation of alleged discovery violation when raised during cross-examination). Although the trial judge asked if there were any objections when the State tendered Tianga as an expert, and defense counsel said “no,” this exchange occurred a mere ten pages later in the transcript of the proceeding. Thus, since the judge was aware of defense counsel’s initial objection, it would have been futile for defense counsel to object again, on the same grounds, minutes later. The record demonstrates that defense counsel brought the issue to the trial court’s attention during the State’s direct examination. At this point, it was the trial court’s duty to conduct a Richardson inquiry, as it was notified of a possible discovery violation.

Finally, we find no merit in the State’s argument that Thomas waived the issue by accepting the trial court’s remedy of allowing the defense to provide the State with a list of witnesses to call to rebut Tianga’s testimony. The record clearly reflects that defense counsel was not arguing that this was the remedy for the discovery violation. Instead, defense counsel was arguing that if the trial court found there was no discovery violation, defense counsel would like to have the opportunity to try to find an expert to testify. Because the trial court never conclusively ruled on whether there was in fact a discovery violation, nor did it even touch on the other two issues in a Richardson inquiry, it cannot be said that Thomas accepted this remedy, which the trial court and defense counsel understood was conditional upon the finding of a violation.

The State must disclose “expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify to test results or give opinions that will have to meet the test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).” Fla. R. Crim. P. 3.220(b)(1) (A)(i)(7) (2009). Failing to list a witness as an expert, even when the witness is listed as a Category A witness, is a discovery violation. Luis v. State, 851 So. 2d 773, 775-76 (Fla. 2003).

“A Richardson hearing is required when there is a possible discovery violation in order to flesh out whether there has indeed been a discovery violation.” Landry v. State, 931 So. 2d 1063, 1065 (Fla. 4th DCA 2006) (emphasis in original). In conducting a Richardson hearing, the trial court must inquire as to whether the violation (1) was willful or

inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party’s trial preparation.” State v. Evans, 770 So. 2d 1174, 1183 (Fla. 2000). Regarding the third factor:

[T]he defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant.

State v. Schopp, 653 So. 2d 1016, 1020 (Fla. 1995).

Thus, the harmless error standard for a State discovery violation does not focus on the discovery violation’s effect on the verdict; instead, the inquiry is whether there is a reasonable possibility that the discovery violation materially hindered the defendant’ s trial preparation or strategy. Scipio v. State, 928 So. 2d 1138, 1149-50 (Fla. 2006). Although “the trial court has discretion to determine whether a discovery violation would result in harm or prejudice to the defendant, ‘the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances.’” Barrett v. State, 649 So. 2d 219, 222 (Fla. 1994) (citing Richardson, 246 So. 2d at 775) (emphasis added). Finally, imposing the burden on the defendant to demonstrate prejudice instead of determining the circumstances of the discovery violation and requiring the State to demonstrate lack of prejudice to the defendant, does not satisfy the procedure contemplated by Richardson. See In Interest of J.B., 622 So. 2d 1175 (Fla. 4th DCA 1993).

In Henry v. State, 42 So. 3d 328 (Fla. 2d DCA 2010), the State sought to qualify a police officer, who was listed as a Category A witness, as an expert witness based on his field experience as a member of a drug unit. Henry objected, arguing that Officer Tamboe was not listed as an expert during discovery. Id. The trial court overruled the objection, determining that the State should have an opportunity to lay the foundation with regard to the officer’s qualifications as an expert. Id. On review, the Second District held that Henry was entitled to a new trial as the trial court committed reversible error by failing to conduct a Richardson hearing. Id. The court reasoned that under th e version of rule 3.220(b)(1)(A)(i) in effect at the time of Henry’s trial,2 designating a

2 The 2010 version of rule 3.220(b)(1)(A)(i), effective January 1, 2010, added

expert witnesses who are going to testify as a type of category A witness. The

court noted that had this amended version of the rule been effective at the time

witness as an expert witness at trial required listing that witness as such in pretrial discovery. Id. Merely listing the witness as a category A witness did not satisfy the plain language of the rule. Id. Because it was undisputed that the officer was listed only as a Category A witness, the court reasoned that once the State sought to qualify the officer as an expert, and the defense objected to the discovery violation, the trial court should have conducted a Richardson hearing. Id. The court remanded for a new trial because the record did not conclusively show that the error was harmless. Id. at 330.

Based on the foregoing, we hold that upon being notified by Thomas of an alleged discovery violation, the trial court was required to conduct a Richardson inquiry. Although the trial court has discretion to determine whether a discovery violation would result in prejudice to the defendant, the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Barrett, 649 So. 2d at 222. Here, the trial court never determined whether the violation was willful or inadvertent or if it was trivial or substantial. Thus, the trial court did not make an adequate inquiry into all of the surrounding circumstances. Further, because the trial court did not require the State to demonstrate the lack of procedural prejudice, and instead only inquired of defense counsel how h e would be prejudiced, the Richardson inquiry was inadequate. Finally, the record does not support the State’s contention that Thomas was not procedurally prejudiced beyond a reasonable doubt by the discovery violation. Thus, the error cannot be considered harmless.

Reversed.

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

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan, Judge; L.T. Case No. 08-19619 CF10A.

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

of Henry’s trial, the listing of the officer as a category A witness may have been sufficient to allow the State to qualify him as an expert without a Richardson hearing. Henry, 42 So. 3d at 329.

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

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

MARCELA LALIME,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-858

[May 18, 2011]

PER CURIAM.

Marcela Lalime (Lalime) appeals an order summarily denying her second amended motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We reverse.

On January 28, 1993, Lalime entered into a negotiated plea of nolo contendere to four counts of obtaining a prescription by fraud, and the remaining ten counts were nolle prossed. The trial court withheld adjudication1 and placed her on probation for two years. There was no direct appeal and no prior postconviction motions filed.

On October 6, 2008, Lalime filed a sworn motion for postconviction relief, pursuant to rule 3.850, Florida Rule of Criminal Procedure, in which she sought to withdraw her plea. Pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007), the trial court dismissed her amended motion and allowed her to file a second amended one, the denial of which prompted this appeal.

In her second amended motion, Lalime alleged that the trial court failed to determine that her plea was knowingly and voluntarily entered, because the court failed to advise her, pursuant to rule 3.172(c)(8), that her plea could subject her to deportation. The motion further alleged that her defense counsel had affirmatively misadvised her that the plea would not subject her to deportation, and the trial court failed to cure

the affirmative misadvice. She attached exhibit 1, her former defense counsel’s affidavit, in which he explained that in January 1993, it was his legal opinion that a withhold of adjudication was not considered a conviction for immigration purposes, and it would not affect Lalime’s immigration status.

Although a warning as to deportation consequences appeared in paragraph nineteen of the plea petition, which Lalime signed, she alleged that counsel negated the warning when he misadvised her concerning immigration consequences. No event in her life experience gave her reason to inquire beyond th e advice given until she consulted immigration counsel on April 28, 2008, in connection with applying to become a citizen. On September 10, 2008, the Department of Homeland Security notified her that the challenged conviction might cause her application for citizenship to be denied, and on December 29, 2008, it informed her she was being placed in removal proceedings.

She alleged that she could not have ascertained, with the exercise of due diligence, that her conviction subjected her to removal, that counsel had misadvised her, or that the trial court should have informed her of the deportation consequences, prior to April 2008. Only this single matter made her deportable; she had never been deportable for any other reason. For timeliness of the motion, she relied on State v. Green, 944 So. 2d 208 (Fla. 2006) (giving those whose cases were already final two years from the date of the opinion, or until October 26, 2008, in which to raise their claims).

Finally, she stated that a transcript of the plea colloquy, which would confirm her allegations, was not available. Despite that fact, she intended to prove her claims with the testimony of her former counsel and the trial judge who presided over her plea hearing. Former counsel’s affidavit indicated he specifically remembered that the judge did not advise Lalime that the plea could subject her to deportation.

The state took the position that the two-year Green window for cases that were already final when it issued did not apply to cases of misadvice of counsel, maintaining that the motion should have been filed within two years of the conviction and sentence becoming final. Finally, the state argued that the motion was insufficient in that Lalime failed to allege why the misadvice or the trial court’s failure to advise could not have been discovered within the two-year time limit.

The trial court summarily denied the motion, adopting the state’s response that the motion was time-barred. The trial court also found

that the motion was refuted by the record in part (in that she indicated in her plea petition that she entered the plea because she was guilty), and legally insufficient in part (in that the state had not agreed to withholding adjudication).

We have previously applied the two-year window period announced in Green to claims of affirmative misadvice of counsel; not only to a trial court’s failure to advise. Francis v. State, 31 So. 3d 285 (Fla. 4th DCA 2010).

In response to this court’s order to show cause, the state now suggests that this court should find Lalime’s claim is barred by laches. See McCray v. State, 699 So. 2d 1366 (Fla. 1997) (concluding as a matter of law that five years of delay in filing petition alleging ineffective assistance of appellate counsel is presumed unreasonable). We have not applied the McCray presumption to motions filed under rule 3.850 and Green expressly provides defendants with two years from the date of the opinion to file their motions.

Accordingly, we reverse the order summarily denying the motion, and remand the case to the trial court for attachment of portions of the record conclusively refuting the claim or an evidentiary hearing.

Reversed and remanded.

TAYLOR, MAY and DAMOORGIAN, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert A. Hawley, Judge; L.T. Case No. 311992CF001134A.

V.J. (Jimmy) Benincasa, Vero 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

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