Florida Criminal Law Opinions

Third District Court of Appeal

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

Opinion filed June 29, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D09-2114

Lower Tribunal No. 07-17202

Jose Escobar,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Orlando A. Prescott, Judge.

Carlos J. Martinez, Public Defender, Shannon P. McKenna and Marti Rothenberg, Assistant Public Defenders, for appellant.

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

Before RAMIREZ, C.J., and SHEPHERD and SUAREZ, JJ. SHEPHERD, J.

Jose Escobar appeals a summary denial of his pro se motion to withdraw his plea after sentencing, pursuant to Florida Rule of Criminal Procedure 3.170(l), on the grounds he failed to understand the specific detail of his plea due to a language “barrier,” unfamiliarity with “legal language,” being rushed through the plea colloquy by the trial judge and, finally, his counsel “[r]ushed [and] [r]esponded on [his] behalf in a manner inefficient [and] not agreeable to [him].” Escobar’s motion is in the form of a letter written by Escobar in his jail cell and mailed to the trial judge. The trial judge summarily denied Escobar’s motion on the ground it was refuted by the record. We reverse the trial court’s order and remand for the court to determine in the first instance whether Escobar’s motion contains allegations sufficient to give rise to an adversary relationship between Escobar and his counsel. Because a motion to withdraw a plea after sentencing is a critical stage, the court should further assure on remand that Escobar’s counsel is aware of Escobar’s filing.

This is a good case in which to discuss the proper application of this sometimes confusing rule.1 A defendant who pleads guilty or nolo contendere

1The rule was adopted in 1997 as part of the Florida Supreme Court’s attempt to effectuate a legislative philosophy to resolve more issues at the trial court level. See Mourra v. State, 884 So. 2d 316, 319 (Fla. 2d DCA 2004), abrogated by Sheppard v. State, 17 So. 3d 275 (Fla. 2009). There has been considerable debate since then over whether the confusion caused by the rule has come to outweigh its benefits. Mourra, 884 So. 2d at 319-20; see also Williams v. State, 959 So. 2d 830,

without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw his plea within thirty days after rendition of his sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)a.-e., except as provided by law.2 See Fla. R. Crim. P. 3.170(l); Sheppard, 17 So. 3d at 282. It also is settled law in this state that counsel’s obligation of representation to his client does not end upon the rendition of a judgment of conviction and sentence, but continues thereafter until either a notice of appeal is filed and related tasks completed, the time for filing the notice has passed, or good cause is shown upon written motion. See Fla. R. Crim. P. 3.111(e)(1)(A), (e)(3); Krautheim v. State, 38 So. 3d 802, 806 (Fla. 2d DCA 2010); Williams v. State, 10 So. 3d 660, 662 (Fla. 4th DCA 2009); Searcy v. State, 971 So. 2d 1008, 1011 (Fla. 3d DCA 2008).3 The filing of a timely motion to withdraw

832 (Fla. 4th DCA 2007) (Warner, J., concurring specially) (noting that a joint post conviction workgroup of trial and appellate court judges had so concluded).

2 Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)a.-e. states:

(ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo contendere may otherwise directly appeal only

a. the lower tribunal’s lack of subject matter jurisdiction;

b. a violation of the plea agreement, if preserved by a

motion to withdraw plea;

c. an involuntary plea, if preserved by a motion to

withdraw plea;

d. a sentencing error, if preserved; or

e. as otherwise provided by law.

3 Even then, an order allowing withdrawal of counsel is conditional. Rule 3.111(e) concludes:

a plea after sentencing tolls these time periods. Fla. R. App. P. 9.020(h)(1); Eulo v. State, 786 So. 2d 43, 44 n.1 (Fla. 4th DCA 2001). In this case, Escobar’s counsel had neither filed a notice of appeal on behalf of his client, nor obtained an order permitting his withdrawal from representation before Escobar filed his motion to withdraw plea. Thus, his obligation to Escobar was not at an end.

Although a defendant represented by counsel at trial has a qualified right derived from article I, section 16 of the Florida Constitution to be heard in person at trial, see Sheppard, 17 So. 3d at 279, appellate courts, by virtue of their different focus on legal issues, uniformly have refused to permit a defendant represented by counsel to file additional pro se briefs and papers. Id. at 280. Nevertheless, our supreme court has recognized a limited exception to the practice of striking these pro se pleadings as nullities:

where a defendant files a pro se motion to withdraw a plea pursuant to rule 3.170(l), which contains specific allegations that give rise to an adversarial relationship, such as misadvice, affirmative misrepresentations, or coercion that led to the entry of the plea. In these narrow circumstances, . . . the trial court is required . . . to determine whether an adversarial relationship exists such that defense counsel can no longer continue to represent his or her client at a hearing in which counsel will likely be an adverse witness.

Orders allowing withdrawal of counsel are conditional, and counsel shall remain of record for the limited purpose of representing the defendant in the lower tribunal regarding any sentencing error that the lower tribunal is authorized to address during the pendency of the direct appeal under rule 3.800(b)(2).

Id. at 277. In short, if a defendant represented by counsel files a pro se motion to withdraw his plea pursuant to Rule 3.170(l) after he is sentenced, the trial court may strike the pleading without a hearing where the pleading fails to contain specific allegations that bring it within the ambit of Rule 9.140(b)(2)(A)(ii)a.-e. However, if the pro se motion contains specific allegations that bring it within the ambit of Rule 9.140(b)(2)(A)(ii)(c)—e.g., the plea was involuntary—and further contains allegations sufficient to give rise to an adversary relationship between the defendant and his counsel, the trial court must take an additional step. It then must “either grant ‘an evidentiary hearing or accept the defendant’s allegations . . . as true [unless] they are conclusively refuted by the record.’” Krautheim, 38 So. 3d at 805 (citing White v. State, 15 So. 3d 833, 835 (Fla. 2d DCA 2009) (second alteration in original) (quoting Bayer v. State, 902 So. 2d 353, 354 (Fla. 2d DCA 2005))).

It is only after such a hearing, if the trial court finds conflict has arisen between the defendant and his trial counsel in the continued representation by trial counsel, the defendant is entitled to conflict-free counsel to resolve the issues raised by the motion. See Sheppard, 17 So. 3d at 275; Krautheim, 38 So. 3d at 804-05 (finding the defendant’s assertions in motion to withdraw plea that he did not understand what could happen if he admitted to probation violation, and was confused about his possible sentence sufficient to require an evidentiary hearing to

determine whether the defendant was entitled to conflict-free counsel, despite the fact he was advised in original plea colloquy of the maximum and minimum penalties if he violated probation); La Page v. State, 29 So. 3d 1168, 1170 (Fla. 1st DCA 2010) (concluding the defendant was entitled to appointment of conflict-free counsel to defend allegation that counsel misadvised him of potential defenses to probation violation at conclusion of evidentiary hearing, where the defendant’s allegation was not conclusively refuted); cf. Davis v. State, 52 So. 3d 697, 698 (Fla. 4th DCA 2010) (affirming denial of motion to withdraw plea for lack of specific allegations); Nelfrad v. State, 34 So. 3d 221, 223 (Fla. 4th DCA 2010) (concluding the defendant’s motion to withdraw plea on ground his counsel coerced him by telling him if he failed to accept the plea offer he would be sentenced to five years in prison, was refuted by plea colloquy where the defendant specifically was advised he could face any sentence up to the maximum of two, five-year consecutive sentences); Wendt v. State, 19 So. 3d 1024, 1028-29 (Fla. 3d DCA 2009) (stating the defendant’s motion to withdraw plea and appoint conflict-free counsel in probation violation proceeding on ground she was under erroneous impression she would not receive a sentence in excess of the original plea agreement was refuted by plea agreement and plea colloquy where she specifically was advised her maximum exposure was five years).

In this case, Escobar’s motion, in the form of a letter to the court, states:

I [r]espectfully [r]equest to have the plea issued on September 8, 2008[,] withdrawn due to a barrier in communication, as a [r]esult of not speaking the English language. I had a [t]ranslator appointed by the court; [h]owever, due to specific legal language, the [interpreting] process and the [acc]elerated speed at which the court conducts the business of its calend[a]r[,] I did not understand the specific detail of my plea. The counselor [r]ushed [and] [r]esponded on my behalf in a manner inefficient [and] not agreeable to me. The severity of the court[’]s decision was not clear to me until I conferred in my native Spanish language with colle[a]gues. This letter was drafted with the assistance of an associate with the ability to read[,] write, and speak English and Spanish. I beg the mercy of the [c]ourt[’]s re-evaluation.

Sincerely,

/s/ Jose Escobar

(emphasis added).

Escobar’s allegations in his pro se motion that “[t]he counselor [r]ushed [and] [r]esponded on my behalf in a manner inefficient [and] not agreeable to me,” may be sufficient to create an adversarial relationship between Escobar and his counsel. The trial court erred by not considering first whether this (or any other) allegation was sufficient to constitute such a conflict. If so, Escobar was entitled to the appointment of conflict-free counsel to advance his motion. If not, Escobar’s motion should be stricken as a nullity unless, of course, counsel elects to adopt it and advance it on Escobar’s behalf.

For the foregoing reasons, we reverse the order under review and remand this case for further proceedings in compliance herewith.

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Third District Court of Appeal

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

Opinion filed June 29, 2011.

No. 3D09-2758

Lower Tribunal No. 96-27765B

Ydel Noel Castellanos,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Stacy D. Glick,

Judge.

Carlos J. Martinez, Public Defender, and Joanna G. Ingalls, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

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

ON MOTION TO CORRECT SCRIVENER’S ERROR

PER CURIAM.

We hereby grant appellant’s motion to correct scrivener’s error in our opinion issued May 4, 2011. The corrected opinion is as follows:

Ydel Noel Castellanos (“the defendant”) appeals the denial of his Florida Criminal Rule of Procedure 3.800 motion for postconviction relief. We reverse.

In 1996, the defendant was convicted and sentenced to life in prison as a habitual felony offender. Two cases were used to qualify the defendant for habitual felony offender status: (1) a 1992 case in which adjudication was withheld and the defendant was placed on probation; and (2) a 1993 case which the defendant committed while on probation. The defendant accepted a global plea for violation of probation on the 1992 case and the new 1993 case, and the trial court sentenced him on both cases together. The defendant then filed a motion to correct illegal sentence, alleging the 1992 case was incorrectly used to qualify him as a habitual felony offender. The lower court denied the motion, and this appeal followed.

On appeal, the defendant asserts that the trial court erred in denying the defendant’s motion because the record does not show two sequential prior felony convictions. The State contends that the trial court properly denied the defendant’s motion because the record shows two sequential prior felony convictions. We agree with the defendant.

In 1996, a defendant could be classified as a habitual felony offender if he or she had previously been convicted of two or more felonies prior to the current offense. § 775.084(1)(a), Fla. Stat. (1996). The prior felony “must have resulted

in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.” § 775.084(5), Fla. Stat (1996). Also, a sentence of probation without an adjudication of guilt could only be treated as a prior conviction “if the subsequent offense for which he is to be sentenced was committed during such probationary period.” § 775.084(2), Fla. Stat. (1996). Thus, a prior offense, for which the defendant received a withhold of adjudication and probation and had completed probation, could not be counted as a prior conviction. Wright v. State, 691 So. 2d 1140 (Fla. 1st DCA 1997).

Here, the 1992 case record shows that the defendant received a withhold of adjudication and completed his probation prior to committing the 1996 charges. The 1992 case, therefore, could not be counted as one of the two sequential prior felony convictions required to sentence the defendant as a habitual felony offender in 1996. Thus, the trial court erred in denying the defendant’s motion for postconviction relief.

Accordingly, we reverse the order denying the defendant’s motion, and remand for further proceedings.

Reversed and remanded.

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Third District Court of Appeal

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

Opinion filed June 29, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-815

Lower Tribunal No. 06-CF-303-K

Neil Goldberg,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Monroe County, David J. Audlin, Jr.,

Judge.

Paul Morris, for appellant.

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

Before RAMIREZ, C.J., and CORTIÑAS AND SALTER, JJ.

PER CURIAM.

Neil Goldberg appeals his sentence imposed upon violation of probation. We reverse and remand for resentencing because we find that the trial court improperly excluded relevant evidence offered by the defendant to rebut testimony

by one victim and by the parent of another victim.

In 2008, the defendant was charged with three counts of driving under the influence of prescription drugs and causing an accident with serious bodily injury. He struck three motorcycle riders with his car. There was evidence that the defendant consumed the drugs after the accident. The first officer on the scene testified that the defendant was not impaired. The state, the victims, and the defendant ultimately agreed to a plea of guilty in exchange for a sentence of four years on probation and substantial restitution.

In January 2010, an affidavit of violation of probation was filed against the defendant for smoking marijuana as disclosed by a random drug test. The defendant admitted the violation, and a sentencing hearing before a different judge followed. The defendant presented expert testimony regarding his efforts to stay drug-free and limited relapse, and also provided testimony and letters of support from members of the community. The state presented the testimony of one of the three victims and of another victim’s father regarding the events of the accident. They accused the defendant of being uncaring, of being callous and of staying in his car after the accident, instead of offering help. Thereafter, the judge adjourned the hearing because he wanted to allocate more time to the case.

When the hearing was reconvened, nineteen days later, the defendant sought to rebut the testimony the state had introduced. He requested that the court view the five-minute videotape of the accident scene filmed by the first patrol car that

arrived on the scene, because the defendant said it would show both remorse and his efforts to give immediate aid to the victims. He offered (and later proffered) the videotape to rebut the state’s testimony that he was not remorseful and had not offered help. The state objected. It argued that it would be improper for the court to consider the defendant’s evidence because the underlying case was closed. The court did not allow the defendant to present any further evidence. The court sentenced defendant to 11.75 years in prison on each count, to be served concurrently. This appeal followed.

We hold that the court improperly denied the defendant the opportunity to rebut the state’s evidence. Florida Rule of Criminal Procedure 3.720(b) provides that “[t]he court shall entertain submissions and evidence by the parties that are relevant to the sentence.” (Emphasis provided). Here, as in Hargis v. State, 451 So. 2d 551 (Fla. 5th DCA 1984), “the case must be remanded for a sentencing hearing and resentencing.” Id. at 552 (citing Miller v. State, 435 So. 2d 258 (Fla. 3d DCA 1983)). The sentencing judge was new to the case and not familiar with the facts. The court considered evidence from the state and victims regarding the accident and the defendant’s alleged lack of remorse at the accident scene. Particularly before a new judge, the defendant was entitled to present evidence on these points to rebut the picture the state had drawn.

On remand, the defendant shall be permitted to present the proffered evidence.

Reversed and remanded.

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Third District Court of Appeal

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

Opinion filed June 29, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-1160

Lower Tribunal No. 98-36524

Earl Brewer,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Bertila Soto,

Judge.

Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

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

Earl Brewer appeals from an order modifying his probation to require electronic monitoring. Because the transcript of the modification hearing clearly confirms that the trial court intended to apply section 948.063 of the Florida Statutes and not the Jessica Lunsford Act as recited in the court’s written order, we reverse and remand for correction of the order modifying probation to correctly reflect the trial court’s oral ruling. See Stark v. State, 712 So. 2d 454, 455 (Fla. 2d DCA 1998) (finding that the written order of probation should match the trial court’s oral pronouncements); Reiter v. State, 674 So. 2d 189, 190-91 (Fla. 2d DCA 1996) (finding that the “written [probation] order must be modified to conform to the court’s oral pronouncement”). The order on appeal is otherwise affirmed.

Affirmed in part, reversed in part, and remanded with instructions.

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Third District Court of Appeal

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

Opinion filed June 29, 2011.

No. 3D10-2148

Lower Tribunal No. 09-7015-B

O.Y., 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 Melissa del Valle, Assistant Public Defender, for appellant.

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

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

PER CURIAM.

Confession of Error

Based on the state’s proper confession of error, we reverse O.Y.’s adjudication of delinquency on count 1 for the lesser included offense of assault on

a law enforcement officer. This adjudication is fundamental error because the charging document did not allege the elements of assault, and assault is not a necessarily lesser included offense to the charge of battery on a law enforcement officer. V.C. v. State, No. 3D10-350 (Fla. 3d DCA May 18, 2011).

The adjudication is affirmed in all other respects.

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Third District Court of Appeal

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

Opinion filed June 29, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D11-77

Lower Tribunal No. 01-6655

Murphy Sinclair,

Appellant,

vs.

The State of Florida,

Appellee.

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

Murphy Sinclair, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

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

PER CURIAM.

Murphy Sinclair appeals the trial court’s order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Sinclair contends that the trial court violated the double jeopardy clause when it sentenced him to concurrent habitual felony offender and prison releasee reoffender sentences. We disagree and affirm.

Following a jury trial, the jury found Sinclair guilty of resisting an officer without violence and burglary of an occupied dwelling. The court sentenced him to twenty years as a habitual felony offender (“HFO”) with a fifteen-year minimum mandatory sentence as a prison releasee reoffender (“PRR”).

Sinclair’s claim cannot be sustained in light of the Florida Supreme Court’s decision in Grant v. State, 770 So. 2d 655 (Fla. 2000). In Grant, the defendant argued that his concurrent fifteen-year HFO and PRR sentences for sexual battery violated his double jeopardy rights. The Florida Supreme Court rejected Grant’s double jeopardy argument. See also Pacheco v. State, 784 So. 2d 459, 460 (Fla. 3d DCA 2000) (sentencing of a defendant as both a PRR and a HFO does not violate the constitutional protection against double jeopardy).

However, the Florida Supreme Court in Grant concluded that the sentences violated section 775.082, Florida Statutes (1997), the Prison Releasee Reoffender Act (“PRR Act”), because the concurrent HFO and PRR sentences were equal in length. The Supreme Court observed that, under the PRR Act, “‘[n]othing in this

subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 [the HFO statute], or any other provision of law.’” Grant, 770 So. 2d at 658 (citing § 775.082(8)(c), Fla. Stat. (1997), now § 775.082(9)(c)). The Supreme Court found that “this subsection allows a trial court to impose an HFO sentence on a PRR when the defendant qualifies under both statutes. It does not require a trial court to choose between one or the other. When a defendant receives a sentence like the one in this case, the PRR Act operates as a mandatory minimum sentence.” Grant, 770 So. 2d at 658.

Consequently, concurrent HFO and PRR sentences for the same offense are permissible when the incarceration period of the HFO sentence exceeds the PRR sentence. Here, the court sentenced Sinclair to twenty years as a HFO and fifteen years as a PRR. Therefore, the trial court did not violate the PRR Act.

Further, this Court previously held that Sinclair’s twenty-year sentence as a HFO and fifteen-year sentence as a PRR was in fact a legal sentence. See Sinclair v. State, 994 So. 2d 1247 (Fla. 3d DCA 2008).

Accordingly, we affirm.

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Third District Court of Appeal

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

Opinion filed June 29, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D11-171

Lower Tribunal No. 08-29237

William Lovett,

Appellant,

vs.

The State of Florida,

Appellee.

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

William Lovett, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before GERSTEN, WELLS, and CORTIÑAS, JJ.

PER CURIAM.

The Court withdraws the opinion issued April 13, 2011, and substitutes the following corrected opinion:

William Lovett appeals from an order summarily denying his motion to withdraw plea under Florida Rule of Criminal Procedure 3.170(l). We reverse.

In exchange for his guilty plea in case F08-29237 and his admission of probation violation in case F94-17832, the trial court sentenced Lovett to twenty years in state prison as a habitual violent felony offender, with a fifteen-year minimum-mandatory sentence as a prison releasee reoffender, followed by five years reporting probation as a habitual violent offender. Lovett received all credit for time served on his probation violation case, and the court waived the thirty-year minimum-mandatory sentence as a violent career criminal. The sentence was not coterminous.

Before the trial court entered the written sentence, Lovett, pro se, moved to withdraw his plea, alleging that his counsel had advised him that the sentence would be coterminous. Lovett claimed that had he known that the sentence would not be coterminous, he would not have accepted the plea offer. Lovett also filed a motion to appoint conflict-free counsel. The trial court denied Lovett’s motions, and this appeal followed.

On appeal, Lovett asserts that the trial court erred in summarily denying his motion to appoint conflict-free counsel and in failing to conduct an evidentiary hearing on his motion to withdraw his plea. The State contends that the trial court

properly denied the motions because the plea colloquy shows that Lovett intelligently and voluntarily entered his plea. We agree with Lovett.

In Sheppard v. State, 17 So. 3d 275, 287 (Fla. 2009), the Florida Supreme Court outlined the procedure trial courts should follow when an indigent defendant files a pro se rule 3.170(l) motion alleging an adversarial relationship with his or her counsel. The Court stated,

[T]he trial court should hold a limited hearing at which the defendant, defense counsel, and the State are represented. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel withdraw or discharge and appoint counsel-free counsel to represent the defendant.

17 So. 3d at 287.

Here, Lovett alleged that his counsel misinformed him about the terms of the

sentence offered in exchange for his plea. Thus, Lovett’s motion sufficiently

alleged a conflict between Lovett and his counsel. Further, although the trial court

told Lovett the term of years of the proposed sentence, the transcript of the plea

colloquy is silent regarding whether the sentence would be coterminous. The

record, therefore, does not refute Lovett’s allegations of counsel’s misadvice.

Accordingly, under Sheppard, the trial court should have held a limited

evidentiary hearing to determine if an adversarial relationship existed. Thereafter,

if the trial court finds that an adversarial relationship exists, the trial court should

appoint conflict-free counsel for the defendant to pursue his motion to withdraw the plea.

Accordingly, we reverse the orders denying Lovett’s motion to withdraw plea and motion to appoint conflict-free counsel, and remand for further proceedings in accordance with this opinion.

Reversed and remanded for further proceedings.

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Third District Court of Appeal

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

Opinion filed June 29, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D11-751

Lower Tribunal No. 96-5184

William Shaun Jordan,

Appellant,

vs.

The State of Florida,

Appellee.

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

William Shaun Jordan, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

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

PER CURIAM.

Affirmed. See Downs v. State, 616 So. 2d 444, 446 (Fla. 1993) (affirming the trial court’s stacking of mandatory minimum sentences for the murder of one victim and the aggravated assault with a firearm upon a witness to the murder).

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

JEROME VARDAMAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D08-2603 [ June 29, 2011 ]

TAYLOR, J.

Jerome Vardaman appeals the revocation of his probation and imposition of sentence. His probation violation charges were based on a new arrest for drug offenses. Because we find no error in the trial court’s denial of appellant’s motion to suppress evidence, we affirm the order revoking appellant’s probation. However, we reverse the thirty-year prison sentences imposed in this case because the totality of circumstances presented a n unrebutted presumption of judicial vindictiveness. See Wilson v. State, 845 So. 2d 142 (Fla. 2003).

Appellant originally pled to carjacking with a firearm (Count I), robbery with a firearm (Count II), and resisting arrest without violence (Count IV). On July 31, 2002, he was sentenced as a youthful offender to four years in prison, followed by two years of community control on Count I, a concurrent six-year term of probation on Count II, and time served on Count IV. He violated community control and was reinstated to probation on December 18, 2006. On January 16, 2008, appellant was arrested for possession of cocaine with intent to sell and possession of cannabis.

Following appellant’s arrest on the new drug charges, an affidavit and amended affidavit alleging violation of probation were filed. Appellant filed a motion to suppress, which the court denied after a hearing. The trial court held two status hearings on May 6 and 7, 2008, during which the court extended appellant a plea offer of concurrent eight-year prison

terms on Counts I and II, with credit for four years.1 Appellant rejected the offer, although it would have resulted in his serving only an additional four years in prison. On May 8, after a final hearing, the trial court revoked appellant’s probation and sentenced him to concurrent thirty-year prison terms on Counts I and II.

Appellant unsuccessfully sought to vacate the thirty-year prison sentences in a Rule 3.800(b)(2) motion. There, as in this appeal, he argued that the trial court’s involvement in the plea-bargaining process, followed shortly thereafter by an unrebutted presumptively vindictive sentence, violated d u e process a n d constituted reversible error. Appellant asserted that the court gave no reasons for the vast disparity between its plea offer of eight years, with credit for four years, and the actual thirty-year sentences it imposed.

Whether a defendant’s sentence is vindictive is a question of law subject to de novo review. Parker v. State, 977 So. 2d 671, 672 (Fla. 4th DCA 2008) (citing Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002)). “When there is judicial participation in plea negotiations, followed by a harsher sentence, the supreme court has adopted a totality of the circumstances approach in determining whether a presumption of vindictiveness arises.” Mounds v. State, 849 So. 2d 1170, 1171 (Fla. 4th DCA 2003) (citing Wilson, 845 So. 2d at 155). It is the defendant’s burden to demonstrate vindictiveness. Id. If the defendant meets this burden, a rebuttable presumption of vindictiveness arises, which the state must then rebut.

The Florida Supreme Court explained that “[j]udicial participation in plea negotiations followed b y a harsher sentence is on e of the circumstances that, along with other factors, should be considered in determining whether there is a ‘reasonable likelihood’ that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial.” Wilson, 845 So. 2d at 156. Other factors that should be considered are:

(1) whether the trial judge initiated the plea discussions with the defendant in violation of Warner[2];

1 The plea offer extended by the trial court was a bottom-range guidelines sentence of ninety-nine months in prison, which amounted to about eight years and three months.

2 In State v. Warner, 762 So. 2d 507, 513 (Fla. 2000), the Florida Supreme

Court clarified that judicial participation in the plea bargaining process is

permissible but placed certain restrictions on judicial participation “‘to

(2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial;

(3) the disparity between the plea offer and the ultimate sentence imposed; and

(4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Id. (footnotes omitted).

Regarding factors (1) and (2), “if the judge participates in the plea negotiations beyond what is contemplated by Warner, or by his or her comments appears to have departed from the role of a neutral arbiter, then these actions alone may give rise to a presumption of judicial vindictiveness that would shift the burden to the State to produce affirmative evidence o n the record to dispel the presumption.” Id. Generally, the trial judge should not advocate for a plea offer, which may result in the judge losing the status of a neutral arbiter. Id. at 156–57. Additionally, “[t]he trial judge must make clear that the sentence is based on what the judge presently has before him or her, and must caution that there is no guarantee that this same sentence will be imposed if the defendant elects to go to trial. Further, if the defendant elects not to accept the offer and the judge later imposes a harsher sentence, the trial judge should consider placing the reasons for the greater sentence on the record.” Id. at 157.

In circumstances very similar to those in this case, the Florida Supreme Court fo u n d an unrebutted presumption of judicial vindictiveness in Wilson. Id. at 158. There, the state alleged that Wilson violated his community control. Id. at 146. At the final hearing, Wilson indicated he wanted to enter an open plea and admit to the violation. Id. The court offered Wilson 128 months if he pled guilty, but when Wilson indicated he wanted his fiancée to testify before the court imposed sentence, the court withdrew the offer and said before the hearing, “‘And my advice to you was the court’s offer was the bottom of the guidelines and in my opinion you should have taken it.’” Id. at 146–47, 158. The

minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.’”

trial court then imposed a mid-range guideline sentence of 150 months. Id. at 147.

In Wilson, the court explained that this comment suggested the judge may have departed from his role as a neutral arbiter, and implied the judge had already decided that Wilson would not receive the bottom-guidelines sentence, regardless of what the hearing revealed, resulting in a penalty for exercising his right to a hearing. Id. at 158. The court entered the 150-month sentence with no explanation, and the record did not contain any facts to support it. Id. The supreme court stated: “In Wilson’s case, it is not simply the increased sentence that gives rise to an unrebutted presumption of vindictiveness. Rather, it is the judge’s comment that Wilson should have accepted the offer, coupled with the increased sentence imposed shortly thereafter, and the absence of any explanation for the increase that give rise to the unrebutted presumption of vindictiveness.” Id.

Applying Wilson’s totality of the circumstances approach in Mounds, we held there that the defendant was unable to demonstrate that a rebuttable presumption of vindictiveness arose. We noted that it did not appear from the record that the judge initiated the plea dialogue, and that even if the judge did initiate the plea discussion, the court did not urge the defendant to take the plea. We further found that the disparity between the offer and the actual sentence, though significant, was not extreme – 105.25 months versus 60 months. 849 So. 2d at 1172.

In contrast to Mounds, here appellant has shown that the totality of the circumstances gave rise to a rebuttable presumption of judicial vindictiveness. Regarding the first factor, the trial judge in this case initiated the plea discussions with appellant at the May 6 hearing.

COURT: The Court will offer him the bottom. . . . [I]f I find that’s a willful, substantial violation of probation at the final hearing, the least you would receive is 99 months Florida State Prison. You understand that?

The second factor was also met. The trial judge, through her comments on the record, appears to have departed from her role as an impartial arbiter by urging appellant to accept the plea offer or by implying that the sentence imposed would hinge on his decision to exercise the right to a final hearing. The court stated:

COURT: Here’[s] my position on that; if he doesn’t want to waive his right to appeal, that’s fine but he’s looking at about what? Forty-five years in prison or something?

STATE: No, he’s looking at about 80 years.

COURT: Eighty years in prison and I think that I’m being more than generous with — the State’s not offering. This is my offer to resolve those cases but if he wants to go ahead and go to final and go to trial in this case.

* * *

COURT: . . . The State, I think, wants you to go to prison for a lot more than four years so it’s up to you with these options. If you want to appeal the motion to suppress, that’s your right, you know, I have no issue with that but the Court offer is gain time; waiving that and pleading to the other case. So we’ll put it on for tomorrow for status. You can talk to your family; talk to your lawyer some more. If not, we’ll go forward with the final on Thursday.

* * *

COURT: I’m offering him 98.85 on the violation and four years on the other case. And he’s got five more minutes to think about it. It’s going to VOP tomorrow and he’s looking at 30 years on one count; 30 years on another count. The YO [youthful offender] count is out the window already and 15 years on the other case. And the State’s not happy with me as it is and it’s not going to get any better than that.

* * *

COURT: . . . I gave you time to think about it. It’s your decision. I understand that but by tomorrow afternoon at 3:00, I’m going to be here. There’s going to be witnesses here and there’s no deal on the table. The Court did everything that the Court could do to try to give you a break on this case. I don’t know what the facts are going to come out, you know, and I heard the motion to suppress. A carjacking is a horrible crime to commit. You got a break then and it was your option but you want to roll the dice and go

with the final VOP. That’s your option and I will see you tomorrow at 3:00.

Similar to the trial judge’s comments in Wilson, the judge’s statement in this case that appellant had previously been given a break, and that his decision to have a final hearing on the probation violation charges would amount to “rolling the dice,” implied that he would no longer be treated with leniency and would most likely receive a harsher sentence.

As to the third factor—the disparity between the plea offer and the ultimate sentence imposed—there was a vast disparity between the two sentences. The court initially offered ninety-nine months incarceration, or roughly eight years, with credit for four years, which would have resulted in appellant’s serving only an additional four years. However, the court ultimately imposed concurrent sentences of thirty years, which amounted to twenty-two more years than the original offer.

Finally, the fourth factor is present: “the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.” Here, the record reflects nothing of significance that transpired between the time the trial court extended the plea offer and the next day when it sentenced the defendant to justify imposing the increased sentences. In sum, the state has failed to rebut the presumption of vindictiveness that arose from the totality of circumstances discussed above.

Accordingly, we reverse the sentences imposed and remand for resentencing by a different judge. See Wilson, 845 So. 2d at 159 (concluding that in cases where an unrebutted presumption of judicial vindictiveness arises, the appropriate remedy is resentencing before a different judge).

Reversed and Remanded for resentencing. STEVENSON and GERBER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia G. Imperato, Judge; L.T. Case No. 02-4109 CF10C.

Carey Haughwout, Public Defender, and Susan D. Cline, 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

BRIAN HOOKS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D08-4729 [June 29, 2011]

MAY, J.

A sad tale of the murder of a homeless person sets the stage for the issues in this appeal. The defendant appeals his conviction on one count of second degree murder and two counts of attempted second degree murder, which resulted in concurrent sentences of thirty years’ imprisonment. Several issues were raised, but none warrant a reversal. We write to discuss the trial court’s denial of the defendant’s motion to change venue due to pre-trial publicity. We affirm.

Four young men congregated for an evening of alcohol, marijuana, and Xanax, which culminated in tragedy. They decided to take a trip to the beach, and a couple of them decided they wanted to “beat up a bum.” On this first trip, the defendant and co-defendant attacked their first victim, who was sitting on a bench at the downtown campus of FAU.

A surveillance video captured the attack as the first victim was beaten by two males with baseball bats at 1:06 a.m. The victim suffered a skull fracture, a facial fracture, a laceration and swelling to his forehead, some tenderness in his cervical spine, and a deformity of his left forearm wrist area.

The four then went to a park and attacked their second victim. During this attack, the defendant and co-defendant beat the victim with bats and shot him with a paintball gun. This victim did not survive the attack. Afterwards, they returned to the house of one of the attackers, at which point one of the young men departed and returned home for the evening. The remaining three ventured out again in the defendant’s

truck.

This time, the three young men came across another homeless man near a church, who was sleeping on the ground under a blanket. All three young men attacked the third victim, and ran off when he stood up and started yelling. This victim sustained head injuries and a shattered arm.

The grand jury indicted the defendant with one count of first degree murder and two counts of attempted first degree murder. The defendant entered a not guilty plea. Subsequently, the defendant moved for a change of venue, which was accompanied by three affidavits and eighty-six media reports exhibiting the intense media coverage received by this case. In response to this media coverage, the trial court entered orders precluding extrajudicial comment. The amended order noted: “The instant case has already garnered a great amount of national and local coverage, and this Court believes that some extrajudicial comments may very well have already been prejudicial to the respective [parties’] rights.”

The trial court ordered the pre-screening of four hundred jurors, sealed the names and addresses of the jurors, and prohibited the filming or photographing of their faces. However, the trial court did allow the media to record their audible responses.

During the first round of jury selection, defense counsel advised the court that all the major newscasts had shown the surveillance video of the first incident the night before. Certain jurors confirmed being exposed to the news coverage, while others possessed copies of the local newspaper containing an article about the case. Of those jurors who had read the article, some had just read the article and others had discussed it as well.

The trial court acknowledged the publicity generated by the case, and commented:

[T]he blogs are the most disconcerting thing for the Court. People have very, very strong opinions once they have seen this video. I mean, it’s really disturbing, actually. And we saw it yesterday with people coming in that you know, I seen that video and I can’t put that out of my head and we tried our best to—we are trying to find a fair and impartial jury for these defendants here.

And yet, some internet comments and online articles were either

sympathetic to the defendants or unsympathetic to the homeless. Still, other comments focused on the defendants’ right to a fair trial.

After pre-screening jurors, the defendant filed a renewed motion for change of venue with supplementary exhibits. The defendant requested to individually voir dire the jurors concerning the pre-trial publicity, and filed a motion for jury sequestration. The court denied the request to sequester the jurors.

The trial court took the motion for change of venue under advisement, noting the 529 jurors examined and th e routine showing of the surveillance video. The defendant renewed all of his pre-trial objections and motions, all of which were again denied.

After opening statements, the trial court instructed the jury not to watch the news, read the paper, or talk to anyone about the case. Media coverage continued throughout the trial. During the trial, the third victim gave an interview outside the courthouse, which caused defense counsel to renew the motion for sequestration and move for a mistrial. The trial court questioned each juror individually, but denied the motions.

The trial continued and the defendant once again renewed his motion for sequestration. Counsel cited numerous articles: a biography of one of the victims; an interview with the parents of the deceased victim; and a video featuring a good friend of the deceased victim that appeared on a website with footage of the funeral and the videotape of the incident. The defendant again renewed his motion for change of venue. The trial court denied the motions, noting the jurors’ obvious awareness of the community’s interest since jury selection started due to the “amount of press that’s been in the courtroom.”

After closing arguments, the defendant renewed all motions, which the trial court denied. The jury returned a verdict finding the defendant guilty of second degree murder with a weapon as to Count 1, and guilty of attempted second degree murder with a weapon as to Counts 2 and 3. The trial court sentenced the defendant to concurrent terms of thirty years. From his conviction and sentence, the defendant appeals.

“A motion for change of venue is a matter addressed to the sound discretion of the trial court, and the trial court’s decision will generally be upheld if there is no showing of a palpable abuse of discretion.” Straight v. State, 397 So. 2d 903, 906 (Fla. 1981). We have the responsibility to independently evaluate the circumstances. Rolling v. State, 695 So. 2d

278, 285 (Fla. 1997). The defendant has the burden to demonstrate prejudice. Manning v. State, 378 So. 2d 274, 276 (Fla. 1979).

The defendant argues the denial of his motion for change of venue deprived him of his constitutional right to a fair trial because the general state of mind of the jury venire was infected by the media attention given to the case. The State responds that notwithstanding the media attention, this jury tried the defendant solely upon the evidence. The jury members either had no knowledge of the case or were able to set aside that knowledge and be fair and impartial.

“The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely upon the evidence presented in the courtroom.” McCaskill v. State, 344 So. 2d 1276, 1278 (Fla. 1977) (quoting Kelley v. State, 212 So. 2d 27, 28 (Fla. 2d DCA 1968)).

We start with the basic premise that “pretrial publicity is normal and expected in certain kinds of cases . . . and that fact standing alone will not require a change of venue.” Rolling, 695 So. 2d at 285. Trial courts must consider a two-pronged analysis: “(1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury.” Id.

In evaluating the first prong, trial courts consider many factors, including: (1) the length of time between the crime and the trial and when the publicity occurred; (2) whether the publicity was factual or inflammatory; (3) whether the publicity was one-sided; (4) the size of the community; and (5) whether the defendant exhausted his peremptory challenges. Id.

Here, the publicity began immediately after the crime when law enforcement released the surveillance video of the first attack to the media to help apprehend th e perpetrators. The video was aired numerous times and the attacks received significant publicity up to and throughout the trial. More than two years elapsed between the crimes and the first round of voir dire. Nevertheless, in the initial venire, at least eighty-eight jurors admitted to having little or no knowledge about the case and at least eighty-two additional jurors in the second round also knew nothing about the case, including five of the jurors selected.1

1 These numbers were provided by the State and appear to be accurate.

Second, the majority of coverage focused on the surveillance video of the first attack, which was admitted at trial and published to the jury. Third, the video was factual, even though it was graphic and disturbing. The media coverage alternated between condemning the actions, and, at other times, reminding the community of the defendants’ right to a fair trial.

Fourth, Broward County is the second largest county in the State. This renders the publicity less likely to infect the entire community than it might in a smaller community. Manning, 378 So. 2d at 276. Fifth, the defendant exhausted all of his peremptory challenges. When all five factors are considered, the pretrial publicity, while extensive, did not so infect the community that it was impossible to select a jury who would try the case solely on the evidence.

“The second prong of the analysis requires the trial court to examine the extent of difficulty in actually selecting an impartial jury at voir dire.” Rolling, 695 So. 2d at 285. We pause a moment to compliment the trial court, who took significant time, exhibited considerable patience, and thoughtfully imposed precautions to ensure the defendant received a fair trial. Hundreds of persons underwent voir dire until the trial court was satisfied that the jurors were impartial and qualified to serve on the jury. While arduous, jury selection was accomplished.

We live in a day and age where news is instantaneous and pervasive. Within minutes, we are alerted to happenings from around the world. Video surveillance is commonplace and exposure of such video in the media is not uncommon. Access to media is available twenty-four hours a day, seven days a week. And the list of commentators expressing their opinions on every aspect of our lives is endless. Virtually no high profile case is immune to vast exposure on the electronic waves of today’s communication devices. We must rely on our justice system and those that toil within it to ensure the protection of our constitutional guarantees. We are confident that this defendant’s rights were protected and that he received a fair trial notwithstanding the pretrial publicity in this case. We find no abuse of discretion and affirm.

Affirmed.

DAMOORGIAN and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia G. Imperato, Judge; L.T. Case No. 06-878- CF10A.

Jeremy J. Kroll of Bogenschutz, Dutko & Kroll, P.A., 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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