Florida Criminal Law Opinions

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

July 29, 2011

ROBERT L. GEORGE,

Appellant,

v.                         Case No. 2D10-2528

STATE OF FLORIDA,

Appellee.

BY ORDER OF THE COURT.

The appellant’s motion for rehearing or clarification is granted to the extent that the opinion dated March 11, 2011, is withdrawn and the attached opinion substituted therefor.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

ROBERT L. GEORGE,

Appellant,

v.                     Case No. 2D10-2528

STATE OF FLORIDA,

Appellee.

Opinion filed July 29, 2011.

Appeal pursuant to Fla. R. App. P. 9.141(B)(2) from the Circuit Court for Polk County; Keith Spoto, Judge.

KHOUZAM, Judge.

The postconviction court initially dismissed Robert George’s two motions filed pursuant to Florida Rule of Criminal Procedure 3.850 as facially insufficient, with leave to file amended motions. The court then dismissed most of George’s claims as untimely. We reverse for the postconviction court to enter an order denying the claims on the merits.

George filed two postconviction motions in December 2007, one in each of two circuit court case numbers. The court dismissed the motions as late on February

25, 2009, without prejudice to file properly sworn motions within sixty days. On March 16, 2009, George mailed from prison sworn motions identical in content to the two earlier motions. The two motions were somewhat overlapping, and the court correctly discerned a total of four claims. The court denied on the merits claim three, concerning trial counsel’s alleged misadvice not to testify at trial, and directed a response from the State on the remaining three claims. The State argued that the motions were untimely filed. The court agreed with the State and denied claims one, two, and three as untimely under rule 3.850. The court treated claim four, concerning habitual violent felony offender sentencing, under Florida Rule of Criminal Procedure 3.800(a) and granted it in part and denied it in part.

It appears that the State was unaware of the versions of the

postconviction motions filed in December 2007 and that the court, in denying three of the claims as untimely, had forgotten about the existence of these motions and its own orders allowing George sixty days to refile them under oath. The direct-appeal mandates in cases CF03-000053-XX and CF05-003286-XX issued on December 14, 2006, and November 13, 2006, respectively. As such, the motions as filed in December 2007 were timely. See Fla. R. Crim. P. 3.850(b); Beaty v. State, 701 So. 2d 856, 857 (Fla. 1997) (holding that the two-year period for filing a motion for postconviction relief begins to run upon issuance of the direct-appeal mandate). Additionally, the properly sworn versions of the motions were timely with respect to the court’s sixty-day directives of February 25, 2009. Therefore, the court should have reviewed all the claims on the merits.

We affirm the postconviction court’s resolution of claim four on the merits and agree with the court’s original denial of claim three on the merits. In ferreting out the procedural sequence described above, which required several rounds of supplementation of the record, we had the opportunity to read George’s remaining two claims. Although we should have reversed and remanded for the postconviction court to review claims one and two, we have concluded the claims are without merit. We therefore reverse with instructions to the postconviction court to vacate its “Final Order on Defendant’s Motion[s] for Postconviction Relief” rendered on April 22, 2010, and to enter a final order that denies claims one and two on the merits and incorporates its ruling on claim four and its original denial of claim three. The order shall be entered within thirty days of the mandate and should reference the present opinion.

Reversed and remanded with instructions.

BLACK and CRENSHAW, JJ., Concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

STATE OF FLORIDA,

Appellant,

v.                      Case No. 5D07-2010

JOSEPH MODESTE,

Appellee.

Opinion filed July 29, 2011

Appeal from the Circuit Court for Orange County,

Bob Wattles, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.

Frank J. Bankowitz of Frank J. Bankowitz, P.A., Orlando, for Appellee.

PER CURIAM.

ON REMAND

In August, 2008, this court reversed a trial court order suppressing certain statements made by Modeste during custodial interrogation. See State v. Modeste, 987 So. 2d 787 (Fla. 5th DCA 2008) (Miranda warning provided to defendant was not inadequate because it did not expressly advise suspect that right to counsel included the right to have counsel present during interrogation). Our decision was quashed by

the Florida Supreme Court in light of its decision in State v. Powell, 998 So. 2d 531 (Fla. 2008). See Modeste v. State, 4 So. 3d 1217 (Fla. 2009). When the United States Supreme Court accepted review of the Florida Supreme Court’s decision in Powell, this court entered an order holding the instant case in abeyance pending disposition of Florida v. Powell in the United States Supreme Court.

The United States Supreme Court subsequently reversed the Florida Supreme Court, determining that the warnings given to Powell did not violate the principles espoused in Miranda.1 Florida v. Powell, 130 S.Ct. 1195 (2010). On remand, the Florida Supreme Court additionally determined that the warnings given to Powell did not violate the right against self-incrimination clause set forth in Article I, section 9 of the Florida Constitution. State v. Powell, 36 Fla. L. Weekly S264 (Fla. June 16, 2011).

Accordingly, we reverse the trial court’s order granting Modeste’s motion to suppress and direct the trial court to reconsider its decision in light of Florida v. Powell, 130 S.Ct. 1195 (2010) and State v. Powell, 36 Fla. L. Weekly S264 (Fla. June 16, 2011). The trial court may, in its discretion, afford the parties an opportunity to present additional evidence on the motion to suppress.

REVERSED and REMANDED.

ORFINGER, CJ., GRIFFIN and EVANDER, JJ., concur.

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

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

STATE OF FLORIDA,

Appellant/Cross-Appellee,

v.

K.N., A CHILD,

Appellee/Cross-Appellant.

CASE NOS. 5D09-4297, 5D09-4298,

5D09-4299, 5D09-4300, 5D09-4301, 5D09-4302, 5D09-4303, 5D09-4304 and 5D09-4305

Opinion filed July 29, 2011

Appeal from the Circuit Court for Orange County,

Alan S. Apte, Judge.

Pamela J. Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.

Michael H. LaFay of NeJame, LaFay, Jancha, Ahmed, Barker & Joshi, P.A., Orlando, for Appellee/Cross-Appellant.

COHEN, J.

The State and Appellee, K.N., both challenge the trial court’s ruling partially granting and denying Appellee’s motion to suppress, which affected nine delinquency cases involving numerous counts of burglary of a conveyance, grand theft, petit theft, possession of burglary tools, and loitering and prowling. We reverse the trial court’s

order suppressing evidence, affirm to the extent it denied the motion to suppress, and remand for trial.

The facts are undisputed. Around 2:00 a.m. on a Monday morning, the Orange County Sheriff’s Office received a 911 call from an identified resident of Courtleigh Drive. The resident reported a suspicious incident involving a white Toyota and its passenger: a tall, white male with long hair and a thin build running from house to house, peering into vehicles and checking door handles. This behavior was consistent with an increased number of burglaries involving unlocked vehicles in the Dr. Phillips area; handguns were stolen from some of the vehicles. The Orange County Sheriff’s Office formed a specialty unit to combat the increased vehicle burglaries. Officer Adams was assigned to this task force and responded quickly to the resident’s report.

As Adams came around a bend on Courtleigh Drive, he spotted a white Toyota stopped in the road, facing him. Adams’ spotlight allowed him to observe two males in the car; the passenger met the resident’s description. Upon activating the spotlight, the Toyota began to move towards the patrol car and the neighborhood’s exit. Adams decided to investigate and activated his overhead lights. Because he was aware that handguns had been stolen in the rash of vehicle burglaries and, in his experience, burglars often carry weapons for defense, he decided to execute a high-risk traffic stop while awaiting backup units. After the vehicle stopped, Adams exited his patrol vehicle with gun drawn and waited for backup.

Once backup arrived, Adams asked Appellee to exit the vehicle first. Adams handcuffed him, patted him down for weapons, and secured him in the patrol car. He executed the same procedure with the driver, later identified as Appellee’s cousin. As

Appellee exited the car, Adams swept the car’s interior with his flashlight and noticed, in plain view, a flashlight and small multi-tool on the front passenger seat and an iPod on the rear seat. Adams often saw multi-tools used in the commission of burglaries. After securing the pair, Adams returned to the car to perform a protective sweep of the trunk to make sure no one was hiding there.1

Adams performed the protective sweep based on prior experience when he encountered someone hiding in a trunk. As he shone his flashlight inside the trunk, he saw a Dell Latitude 610 laptop like the one he personally used. Based on his years of experience with the Sheriff’s Office, he believed this model was used exclusively by law enforcement. Adams then returned to the patrol car, advised Appellee and his cousin of their Miranda2 rights, and gave them an opportunity to identify themselves and provide an explanation for their presence and conduct.

Appellee and his cousin explained that they were just driving around the neighborhood, enjoying the last day of spring break before school started the next morning – - about four hours later. Neither knew anyone in the neighborhood. Although Appellee denied exiting the vehicle, his cousin contradicted him, stating that Appellee had done so several times to look at a boat. When asked about the multi-tool and flashlight in the front seat, Appellee answered that he was just holding the tool because it was in the car. Adams’ concern was not dispelled. He concluded that the resident’s report of suspicious activity and matching description of the car and passenger, the

1 Standard practice in a high-risk traffic stop is for two officers to approach the vehicle with guns drawn to make sure there are no passengers hiding in the vehicle or anything in the vehicle that could harm the officers.

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

contradiction about whether Appellee exited the car, and the unlikely story that they were looking at someone’s boat at 2:00 a.m., gave him probable cause to arrest Appellee for loitering and prowling and possession of burglary tools. Appellee was subsequently arrested and so charged.

Officer Adams proceeded according to the then-prevailing interpretation of New York v. Belton, 453 U.S. 454, 460 (1981), which held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (Footnotes omitted.) When he turned on the laptop, the warning screen popped up indicating it was the property of the Orange County Sheriff’s Office. Before having the vehicle towed for safekeeping, an inventory of the vehicle was conducted and several items collected. Appellee and his cousin were transported to the West Orange substation for questioning where Detective Thompson and Deputy Shellenberger took over the investigation.

Deputy Shellenberger testified that he advised Appellee of his Miranda rights and obtained his statement admitting other vehicle burglaries, stolen property from which was at his residence. After the deputy explained that the owners of the property would probably like to recover the items and asked if they could do that, Appellee signed a consent form and took the deputy to his house. The deputy only searched Appellee’s bedroom and found a handgun in a black case between Appellee’s bed and the wall exactly where Appellee described it would be. There were various electronics scattered all over the room.

At the suppression hearing, Appellee’s argument was three-pronged: there was no probable cause to arrest him for loitering and prowling and any statements he made while in custody should be suppressed; the search of the car was illegal under Arizona v. Gant, 129 S.Ct. 1710 (2009); and any confession or consent to search subsequent to his unlawful detention and arrest should be suppressed as “fruit of the poisonous tree.” The State countered that Appellee, as a passenger, lacked standing to challenge the seizure of evidence from the vehicle under Gant or any other theory. In the alternative, the State argued the good faith exception to the exclusionary rule applied to any evidence seized because the police acted in accordance with Belton, the prevailing law at the time, and noted that Gant was decided a few weeks after the seizure. Further, even if Gant applied, the State argued the search was lawful under the second prong of Gant, which authorizes a search of the passenger compartment when it is reasonable to believe the vehicle contains evidence of the offense of arrest – - in this case, possession of burglary tools.

The trial court found that Officer Adams had a reasonable suspicion to conduct an investigatory stop of the vehicle because he observed a vehicle and passenger that matched the description and location relayed by a citizen informant. The trial court also found the high-risk traffic stop was warranted based upon the officer’s training and experience in cases involving vehicle burglary. Further, it also found that Appellee’s and his cousin’s answers did not alleviate the officer’s justifiable concern because neither Appellee nor his cousin knew anyone in the neighborhood, both gave poor explanations for their presence at 2:00 a.m., and their answers were contradictory about

whether Appellee had exited the vehicle. Finally, it noted the multi-tool and flashlight were in plain view on the front seat.

Although the trial court ruled the investigatory stop and questioning were lawful, it applied Gant, 129 S.Ct. 1710, and ruled that the seizure of the items from the vehicle’s passenger compartment was unlawful and subject to suppression. Based on the perceived illegality of the seizure of items within the vehicle’s passenger compartment, the trial court concluded that there was not a sufficient temporal break between the illegal search and the consent and search of Appellee’s residence. Therefore, the trial court ruled that the subsequent confession, consent, and seizure of evidence from Appellee’s residence was tainted and inadmissible. Notwithstanding this ruling, the trial court deemed the officer’s actions in executing a protective sweep of the trunk lawful and ruled the seizure of the Dell computer from the trunk was admissible. However, the trial court was not persuaded by Appellee’s argument that his rights were violated by the continued use of handcuffs in the patrol car after it was determined he was unarmed. The proceedings were stayed pending appeal.

The State argues on appeal that the trial court erred in applying Gant, 129 S.Ct. 1710, and holding the illegal vehicle search tainted Appellee’s later consent. Appellee cross-appeals, asserting that he was illegally arrested for a misdemeanor committed outside Adams’ presence, which tainted the later admissions, confession and seizure.

The record shows that Appellee failed to demonstrate that he had a legitimate expectation of privacy in the Toyota in which he was a mere passenger. He therefore lacks standing to challenge the items seized therein. See Rakas v. Illinois, 439 U.S. 128, 133 (1978); State v. Deen, 625 So. 2d 968 (Fla. 5th DCA 1993). He does have

standing, however, to contest the legality of the investigatory stop and his arrest. See Williams v. State, 640 So. 2d 1206, 1209 (Fla. 2d DCA 1994).

Motions to suppress are subject to a mixed standard of review. An appellate court is bound by the trial court’s findings of fact that are supported by competent, substantial evidence; however, the application of the law to the facts is subject to de novo review. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). A trial court’s determination of reasonable suspicion to conduct an investigatory stop and probable cause to arrest is reviewed de novo. Saturnino-Boudet v. State, 682 So. 2d 188, 192 n.6 (Fla. 3d DCA 1996).

We agree with the trial court’s conclusion that the totality of the circumstances warranted Adams’ reasonable suspicion that Appellee had attempted to commit burglary of a conveyance, thus warranting an investigatory stop. The reasonable suspicion needed to justify an investigatory stop is a case-specific determination based upon the totality of the circumstances as viewed by an experienced police officer. Id. at 191. Factors to consider in determining whether a reasonable suspicion exists to make an investigatory stop include the time and day, the location, the physical appearance of the suspect, the suspect’s behavior, the appearance and manner of operation of any vehicle involved, and anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge. State v. Quinn, 41 So. 3d 1011, 1014 (Fla. 5th DCA 2010). The police officer need not witness criminal activity in order to have a reasonable suspicion that criminal activity occurred or is about to occur. Id. This level of detention permits the officer to conduct a limited search or frisk of the individual for concealed weapons where the officer is justified in believing the person is armed and dangerous to

the officer or others. Id. (citations omitted.) Also, the officer may detain the individual even at gunpoint and with handcuffs for the officer’s safety without converting the Terry stop into a formal arrest. Id. (citations omitted).

In this case, a resident’s 911 call reported a white male, the passenger of a white Toyota, running from car to car checking car doors. The officer found a vehicle and Appellee, located in close proximity to the caller’s residence, which matched the description. It was 2:00 a.m. on a weeknight. Courtleigh Drive, a very quiet neighborhood, fit the profile of an ungated community in the Dr. Phillips area that was the focus of law enforcement’s efforts to curb the ongoing rash of vehicle burglaries. When first observed minutes later, the Toyota was stopped in the street. The vehicle began to move after Adams shone his spotlight on the vehicle, which he interpreted as an attempt to flee. The investigatory stop was lawful in this case.

The facts underlying the investigatory stop also supported the trial court’s finding that Adams’ use of a high-risk traffic stop procedure was warranted. Specifically, the resident’s report described Appellee’s numerous attempts to enter a conveyance stealthily and without the owner’s consent, which is prima facie evidence of an attempt to enter with intent to commit an offense. See § 810.07(2), Fla. Stat. (2008). Appellee’s actions fit the modus operandi of the persons committing the rash of burglaries in the neighborhood. Adams knew that several firearms had been stolen from the recently burglarized vehicles and, from training and experience, also knew that burglars often carried weapons for protection. These facts gave Adams a reasonable basis to suspect Appellee was attempting to burglarize vehicles and that he might be armed.

Appellee contests Adams’ use of handcuffs and contends that their continued use after Adams determined that no weapons were present was illegal and tainted any consent that was the product thereof. Police may properly handcuff a person whom they are temporarily detaining when circumstances reasonably justify the use of such restraint. Reynolds v. State, 592 So. 2d 1082, 1085 (Fla. 1992). Neither handcuffing nor other restraints will automatically convert a Terry stop into a de facto arrest requiring probable cause. Id. (citing U.S. v. Kapperman, 764 F. 2d 786, 790 n.4 (11th Cir. 1985)). “When such restraint is used in the course of an investigative detention, it must be temporary and last no longer than necessary to effectuate the purpose of the stop.” Id. Only after Adams returned to the patrol car after sweeping the Toyota did he initiate the questioning that was the purpose of the stop. After the questioning, the purpose for which they were stopped, the officers’ reasonable suspicion was elevated to probable cause to arrest Appellee for loitering and prowling and possession of burglary tools. Because the purported illegality of the stop was Appellee’s sole ground to suppress statements he made in the patrol car, his statements were untainted and not subject to suppression. Appellee does not assert an independent argument concerning the illegality of the search of his home, which the trial court disapproved based solely on the “fruit of the poisonous tree” doctrine.

Turning to the State’s appeal, because we determine the initial stop and the request that Appellee and his cousin exit the Toyota to be valid, he has no standing to challenge the search under Gant or any other theory.3 See Rakas, 439 U.S. at 148.

3 Even assuming Appellee had standing to challenge the search, Arizona v. Gant, 129 S.Ct. 1710 (2009), would not require the suppression of evidence in plain view seized from the Toyota. This court has considered and rejected the retroactive

Accordingly, we affirm the trial court’s denial in part of Appellee’s motion to suppress, reverse its ruling granting Appellee’s motion to suppress, and remand for further proceedings.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

ORFINGER, C.J., and PALMER, J., concur.

application of Gant under the good faith exception. See Brown v. State, 24 So. 3d 671, 680 (Fla. 5th DCA 2009); see also Howard v. State, 59 So. 3d 229 (Fla. 2d DCA 2011); State v. Harris, 58 So. 3d 408, 411 (Fla. 1st DCA 2011) (certifying question: “Does the good-faith exception to the exclusionary rule apply to evidence seized by the police in contravention of [] Gant, []?”), rev. granted, Harris v. State, No. SC11-897 (Fla. May 24, 2011). Further, Gant’s second prong permits a search if it is reasonable to believe the vehicle contains evidence of the offense of arrest, in this case, possession of burglary tools, which Adams observed in plain view on the vehicle’s passenger seat.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

JAMES CLEVELAND WESS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-1724

Opinion filed July 28, 2011.

An appeal from the Circuit Court for Alachua County. Mary Day Coker, Judge.

Nancy A. Daniels, Public Defender, Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Jay Kubica and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, for Appellee.

THOMAS, J.

Appellant appeals his conviction of robbery by sudden snatching pursuant to section 812.131, Florida Statutes. Appellant contends the trial court erred when it denied his motion for judgment of acquittal because the undisputed facts do not satisfy the statutory elements of that crime. For the reasons explained below, we agree and reverse with instructions to the trial court to enter a judgment of theft, as authorized by section 924.34, Florida Statutes.

Factual Background

The relevant facts are undisputed. The victim was sitting on a bench at a bus stop; her purse was on the bench, touching her right hip. Appellant asked the victim a question about the bus schedule; she responded, then resumed looking straight ahead at the road. The victim then felt her purse “moving,” and when she turned around, she saw Appellant running away with it.

Appellant was charged with robbery by sudden snatching. At the close of the State’s case, Appellant moved for judgment of acquittal, arguing that the victim’s testimony did not establish that the purse was in her physical possession, as required by section 812.131, Florida Statutes; rather, the most that the facts established was that Appellant had committed the crime of theft. Appellant’s motion was denied. The jury found Appellant guilty as charged, and the trial court adjudicated Appellant guilty accordingly. This appeal followed.

Analysis

Section 812.131, Florida Statutes (2010), provides, in relevant part:

(1) “Robbery by sudden snatching” means the taking of money or other property from the victim’s person, with intent to permanently or temporarily deprive the victim or the owner of the money or other property, when, in the course of the taking, the victim was or became aware of the taking.

(Emphasis added.) The issue here is whether, under these facts, Appellant took the purse “from the victim’s person,” as required by the statute. We conclude that he did not.

Although Appellant was not charged with robbery, comparing the statutory definition of “robbery” with that of “robbery by sudden snatching” is helpful. Section 812.131(1), Florida Statutes, defines robbery as “the taking of money or other property which may be the subject of larceny from the person or custody of another . . . .” (Emphasis added.) Thus, the robbery statute applies when property is stolen from a victim’s immediate vicinity and/or control. By contrast, the robbery by sudden snatching statute is more limited, and applies to property taken from a victim’s person, but not when taken from the victim’s reach, proximity, or control. See Brown v. State, 848 So. 2d 361, 364 (Fla. 4th DCA 2003) (noting that the text of the robbery by sudden snatching statute “pointedly omits any reference to the person’s ‘custody,’ a term that would have indicated that a snatching might occur from nearby the person.”).

In Brown, the victim was sitting on a park bench and “placed her purse on the bench near her but apart from her person.” Id. at 362. The Fourth District rejected the State’s argument that the statute “requires only that the item be within the victim’s reach and control.” Id. at 363. The court explained that “the clear import of the statute’s words is to require that the property be abruptly and

unexpectedly plucked from the embrace of the person, not from that person’s figurative biosphere.” Id. at 364. The court added that the statute “addresses the horror of a victim who is conscious of the startling seizure of something from her hand or person.” Id. Because the purse in Brown “was not on the victim’s person,” the court reversed the appellant’s conviction of robbery by sudden snatching. Id.

In State v. Floyd, 872 So. 2d 445 (Fla. 2d DCA 2004), the victim testified that she was sitting in her car with an acquaintance, talking and smoking a cigarette. Id. at 446. As the acquaintance “left the car, he grabbed the victim’s purse, which she said was sitting on the car seat between the outside of her right leg and the center console of the vehicle.” Id. The appellee moved for judgment of acquittal and asked the court to reduce the charge from robbery by sudden snatching to theft because the purse was removed from the car seat, not the victim’s person. Id. The trial court denied the motion, finding that “the victim had constructive possession of the purse because she had possession of [the thief].” Id. The Second District reversed, explaining that “the victim’s purse was not ‘plucked from [her] embrace’ because [the appellee] grabbed it from the seat of the car.” Id. (quoting Brown, 848 So. 2d at 364). The court further held, “The fact that the victim grabbed [the appellee] after he grabbed her purse does not convert his

taking of her purse from the seat of her car into the taking of her purse from her person.” Id.

Although it is not entirely clear whether the victim’s purse in Floyd was touching her leg when it was grabbed from the car seat, given the court’s reliance on Brown and its emphasis on the fact that the purse was not taken from the victim’s embrace, it does not appear that the court’s decision would have been any different had the purse been touching the victim’s leg. Rather, the court focused on the fact that the purse was removed from the car seat, i.e., from the victim’s reach, and this “did not convert [the appellee’s] taking of her purse . . . into the taking of her purse from her person.” Id.

In Nichols v. State, 927 So. 2d 90 (Fla. 1st DCA 2006), this court reversed a conviction for robbery by sudden snatching because the defendant snatched the victim’s purse from the shopping cart she was pushing, and noted that “[n]othing indicate[d] that the purse was either being held by the victim or was otherwise on her person.” Id. This court also explained that it could not “distinguish the present situation in any meaningful way from that in . . . Floyd.” Id. at 91. This court focused on the language in Brown and Floyd concerning the fact that the purse in those cases was not “‘plucked from the embrace’” of the victim:

the Floyd court and the Brown court determined that “‘the clear import of the statute’s words is to require that the property be abruptly and unexpectedly plucked from the embrace of the person.’”

Id. (quoting Floyd, 872 So. 2d at 446 and Brown, 848 So. 2d at 364).

The Nichols court also rejected the State’s argument that it should not follow Brown because the victim in Nichols “actually had control of the shopping cart” in which her purse was located when it was taken. Id. The court explained that the State’s argument did “not take into account the facts in Floyd, where the purse was directly on the victim’s car seat, between the victim’s leg and the center console.” Id.

Based on the foregoing, it is clear that robbery by sudden snatching does not include taking a victim’s property when it is simply close to the victim or within the victim’s reach or control. Although this is a close question, we are constrained by the Legislature’s clear mandate: “The provisions of [the criminal] code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat.

Here, the victim’s purse was located next to and touching her leg as she sat on a bus stop bench – that is, next to her person, not on her person; thus, although the purse was in her proximity or custody, it was neither in her grasp nor on her person. The State focuses on the observation that in Nichols the purse was not in the victim’s grasp “or otherwise on her person,” whereas, here, the purse was touching the victim and created “contact [that] was of such a personal nature that

[she] felt the purse move when Appellant snatched it.” Id. (quoting Nichols, 927 So. 2d at 90) (emphasis added). Thus, the State argues, “When Appellant snatched the purse, he was snatching it away from contact with her body; in other words, away from the victim’s person.” (Emphasis added.)

First, the State’s argument essentially urges this court to improperly add the word “away” to the statutory phrase “from the victim’s person,” which we decline to do. Furthermore, we think the State reads the phrase “or otherwise on her person” too broadly. The focus in both Brown and Floyd, upon which Nichols relied heavily, as well as in the Nichols opinion itself, was the fact that the victim was not in actual physical possession of the property when it was taken, but was only in very close proximity to it. In this context, the phrase “or otherwise on her person” requires that the property be actually “on” the victim’s person, not simply next to her, even though it may be in “contact” with the victim. Thus, Appellant was not guilty of robbery by sudden snatching, but of theft, which occurs if a person “knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently . . . [d]eprive the other person of a right to the property or a benefit from the property . . . [or] [a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property.” § 812.014(1)(a), (b), Fla. Stat.

Section 924.34, Florida Statutes, authorizes appellate courts to “reverse [a]

judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.” Here, the victim’s uncontroverted testimony was that her purse contained $400 in cash when it was taken. Indeed, the trial court entered a restitution order in that amount. This would support a conviction of third-degree felony grand theft under section 812.014(2)(c)1. Pursuant to section 924.34, Florida Statutes, we would be authorized to direct the trial court to enter a judgment for the lesser included offense of third-degree felony theft, even though the penalty for that offense is the same as that for robbery by sudden snatching. See Sanders v. State, 944 So. 2d 203, 207 (Fla. 2006) (holding a lesser included offense need not be lesser in both degree and in penalty). However, the jury was not given the option of finding Appellant guilty of felony theft as a lesser included offense. Consequently, pursuant to section 812.014(1), we direct the trial court to enter a judgment against Appellant for misdemeanor theft, the lesser included offense for which the jury was instructed it could find Appellant guilty.

Conclusion

For the reasons explained above, we reverse the judgment as to robbery by sudden snatching and direct the trial court to enter a judgment for theft pursuant to section 812.014(1), and resentence Appellant accordingly.

REVERSED and REMANDED with instructions.

PADOVANO and LEWIS, JJ., CONCUR.

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

ROBERT DANIEL CUBERO,

Appellant,

v.                      Case No. 2D10-2950

STATE OF FLORIDA,

Appellee.

Opinion filed July 27, 2011.

Appeal from the Circuit Court for Hillsborough County; Daniel L. Perry, Judge.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Robert Daniel Cubero appeals the revocation of his probation for possession of heroin, a third-degree felony, and possession of drug paraphernalia, a first-degree misdemeanor, and the resulting judgments and sentences. On appeal,

Cubero contends that the trial court lacked jurisdiction to revoke his probation on the misdemeanor count because his twelve-month probation term on that count had expired in March 2010, two months before the relevant affidavit of violation was filed in May 2010. We agree.

On March 18, 2009, Cubero was placed on three years’ probation for the heroin count and on twelve months’ probation for the paraphernalia count. During the next twelve-month period, two affidavits of violation were filed and the trial court twice modified—but never extended—Cubero’s probation. The second modification order was entered on March 25, 2010, thus ending the tolling period invoked by the filing of the second affidavit of violation. See § 948.06(1)(d), Fla. Stat. (2009). This second modification order also ended Cubero’s twelve-month misdemeanor probation term. But in May 2010, a third affidavit of violation was filed, and the trial court revoked Cubero’s probation on both counts in June 2010. Cubero was sentenced to three years in prison on the felony count and to time-served on the misdemeanor count.

Because the twelve-month probation term on the misdemeanor count had expired before the third affidavit of violation was filed in May 2010, the trial court lacked jurisdiction to revoke Cubero’s probation on the misdemeanor count. See Gonzalez-Ramos v. State, 46 So. 3d 67, 69 (Fla. 5th DCA 2010). Even though the trial court could have extended Cubero’s misdemeanor probation each of the two times it modified his probation, the trial court did not do so.1 And the tolling periods that occurred between the filing of each of the first two affidavits and the trial court’s rulings on each of

1In modifying Cubero’s probation either time, the trial court could have extended his misdemeanor probation by the period of time his probation had been tolled, even though it would have exceeded the maximum sentence of twelve months for a first-degree misdemeanor. See § 948.06(2)(f), Fla. Stat. (2009).

those affidavits did not automatically operate to extend Cubero’s misdemeanor probation term past the originally imposed twelve-month term. See id. (rejecting State’s argument that “each and every violation period (the time between the issuance of the warrant and adjudication of the violation allegations) prior to the expiration date of the probation term should be applied to the end of the originally imposed term to automatically extend the term by the total of the violation periods when each violation resulted in a continuation of the original term of probation”).

Accordingly, we remand for the trial court to strike the portion of the revocation order revoking the probation on the misdemeanor count and to strike the misdemeanor count and sentence of time-served from the judgment and sentence. We affirm the revocation order and judgment and sentence as they relate to the felony count.

Affirmed in part; remanded in part.

DAVIS and VILLANTI, JJ., Concur.

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Third District Court of Appeal

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

Opinion filed July 27, 2011.

No. 3D10-2030

Lower Tribunal No. 09-6435

M.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 Howard K. Blumberg, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.

Before RAMIREZ and SHEPHERD, JJ., and SCHWARTZ, Senior Judge. PER CURIAM.

Based upon the State’s proper and commendable confession of error, we reverse the adjudication of delinquency for reckless driving and remand with directions to the trial court to vacate the adjudication of delinquency as to that offense. See Nesbitt v. State, 889 So. 2d 801, 802 (Fla. 2004); V.C. v. State, 36 Fla. L. Weekly D1084 (Fla. 3d DCA May 18, 2011); S.J. v. State, 831 So. 2d 1288, 1289 (Fla. 5th DCA 2002); Fla. Std. Jury Instr. (Crim.) 28.4.

Reversed and remanded with directions.

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Third District Court of Appeal

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

Opinion filed July 27, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-2479

Lower Tribunal No. 10-1785

The State of Florida,

Appellant,

vs.

D.R., a juvenile,

Appellee.

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

Judge.

Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Courtney A. Deblis and Kathryn M. Winkler, Certified Legal Interns, for appellee.

Before SUAREZ, ROTHENBERG, and LAGOA, JJ.

SUAREZ, J.

The State of Florida appeals from an order granting D.R.’s motion to suppress. We reverse and remand for a new suppression hearing.

In reviewing a trial court’s ruling on a motion to suppress, the appellate courts defer to the trial court’s factual findings so long as the findings are supported by competent, substantial evidence, and review de novo the legal question of whether there was probable cause given the totality of the factual circumstances. Twilegar v. State, 42 So. 3d 177, 192 (Fla. 2010). Having reviewed the evidence presented at the hearing on D.R.’s motion to suppress, we conclude that the trial court’s order granting the motion to suppress relied upon an incorrect sequence of events. The order correctly states that the car D.R. was riding in was stopped because it matched a BOLO description and the purpose of the stop was to wait for the victim to arrive for a possible I.D. The order incorrectly states that the officers searched D.R. after the victim showed up and failed to identify the car occupants as her assailants. But the historical sequence of events in the record is established by the officers’ testimony. That evidence shows that D.R. had been arrested for possessing a concealed firearm in his boot before the victim showed up to identify suspects; at the point D.R. was asked to remove his boot, the initial purpose of the investigatory stop was ongoing and had not yet been resolved.

Although the trial court is correct about the legal principle involved, it based its decision on a line of cases that are factually distinguishable. Those cases hold that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491,

500 (1983); Cresswell v. State, 564 So. 2d 480, 481 (Fla. 1990) (holding that a traffic stop may last no longer than the time it takes to write a citation); McNichols v. State, 899 So. 2d 1197 (Fla. 5th DCA 2005) (holding that once a police officer has totally satisfied the purpose for which he has initially stopped and detained the motorist, the officer no longer has any reasonable grounds or legal basis for continuing the detention). The facts of D.R.’s case reveal that the officers were not yet finished with the investigatory stop when D.R. aroused the officers’ suspicion by his behavior.

There is clear error in the historical facts relied upon by the trial court in the order granting the motion to suppress. If the purpose of the BOLO stop was met prior to D.R. being searched, then the detention had ended and any further search was illegal. If, however, the purpose of the BOLO stop was not yet achieved, then the detention was ongoing and the search was not illegal if based on reasonable suspicion. See Cresswell, 564 So. 2d at 482 (“In determining whether an officer had reasonable suspicion in any given case, the totality of the circumstances—the whole picture—must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.”); see also State v. Hankerson, SC10-1074 (Fla. April 21, 2011) (discussing probable cause in light of the factual circumstances coupled with the officer’s experience and knowledge); State v.

Betts, 815 So. 2d 627, 633 (Fla. 2002) (holding that law enforcement officers have probable cause to search where the facts and circumstances within their knowledge and experience are sufficient to warrant their reasonable belief that an offense has or is being committed.); McNichols, 899 So. 2d at 1199.

We reverse the order granting the defendant’s motion to suppress and remand for a new hearing to determine whether, given the officers’ experience and observations, they had reasonable suspicion to search D.R. during the context of an ongoing detention.

Reversed and remanded for further proceedings.

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Third District Court of Appeal

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

Opinion filed July 27, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D11-20

Lower Tribunal Nos. 00-11290, 98-25128

Michel A. Vilorio,

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, Nushin G. Sayfie, Judge.

Michel A. Vilorio, in proper person.

Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.

Before RAMIREZ, and CORTIÑAS, and SALTER, JJ.

RAMIREZ, J.

Michel A. Vilorio appeals the denial of a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Vilorio claims that rule 3.800 applies because: (1) there was an improper departure in the sentencing after

probation was revoked for case numbers 98-25128 and 00-11290; (2) the scoresheet for case number 00-11290 erroneously included four points under the category of “legal status”; (3) the evidence regarding new offenses was insufficient to cause a probation violation; (4) the testimony heard at the evidentiary hearing was unreliable; (5) the evidence to establish a failure to pay cost to sustain revoking probation was not sufficient; (6) the trial court’s sentence was vindictive; (7) he did not receive the proper credit for time served; and (8) the trial court illegally increased the sentence for case number 98-25128 and violated the principles of double jeopardy. We affirm the denial of the motion as to all claims, except we remand the double jeopardy and credit for time served issues.

In 1998, Vilorio was charged and sentenced in case number 98-25128, to two years of community control and one year of probation, which later became three years of probation. In 2000, he was charged with new offenses in case number 00-11290, that resulted in a violation of his 1998 probation. Pursuant to a plea, both cases were resolved. Vilorio received concurrent sentences to three hundred and sixty-four days in county jail, followed by three years of probation. In September 2002, he was arrested on charges of sexual battery, filed as case number F02-25891. The new charges revoked Vilorio’s probation from his earlier cases and additionally sentenced him to another three hundred and ninety-four days in jail. Vilorio was resentenced on his prior two cases. He was sentenced to fifteen

years in prison for violation of probation on case number 00-11290, to be served consecutive to the 1998 sentence. It is unclear from the record what sentence was given to Vilorio for violating probation in case number 98-25128. The docket insert and the written sentence from the revocation hearings reflect the sentence was fifty months, however the transcript from the probation revocation proceedings reads fifteen months.

Vilorio’s first two claims, improper departure and scoresheet error, are not supported by the record. First, the claim of improper departure from the sentencing guidelines is without merit and is refuted by the scoresheets in the record. Second, the scoresheet error claim is unfounded because the record reflects that there were no points in the “legal status” category. Moreover, by using the “could-have-been-imposed” test, the scrivener’s error in the scoresheet results in the same sentencing even if the scoresheet were correctly rescored. See State v. Anderson, 905 So. 2d 111, 112 (Fla. 2005) (discussing the application and use of the could-have-been-imposed test).

Vilorio’s third, fourth, and fifth claim all allege an error in sentencing due to the validity of the conviction. We reject these claims because challenging the validity of conviction and not the legality of the sentence are encompassed in a motion pursuant to Florida rule of Criminal Procedure 3.850. See Hilbert v. State, 661 So. 2d 895 (Fla. 3d DCA 2010). Therefore, these claims are not within

the scope of a rule 3.800 motion. Vilorio’s sixth claim is also not cognizable

under a 3.800 motion. See Calzada v. State, 934 So. 2d 541, 542 (Fla. 3d DCA 2006) (stating that vindictive sentences cannot be raised by rule 3.800 motions).

While we affirm the denial of the motion to correct illegal sentence for the preceding claims, we remand the double jeopardy and credit for time served issues. On remand, the trial court should require further explanation as to whether the sentence in case number 98-25128 was fifteen months or fifty months, and what change if any, was effectuated in the October 17, 2007 order. Also, on remand, Vilorio is instructed to submit an amended motion regarding the claim for credit for time served on case number 00-11290, since he had not sufficiently plead it in his 3.800 motion, nor is it clear from the record the amount of days he actually served.

Affirmed; remanded with instructions.

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Third District Court of Appeal

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

Opinion filed July 27, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D11-1520

Lower Tribunal No. 94-32984A

David Jerome,

Appellant,

vs.

State of Florida,

Appellee.

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

David Jerome, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before SUAREZ, CORTIÑAS, and EMAS, JJ.

PER CURIAM.

David Jerome seeks review of the trial court’s order denying his Motion to Correct Sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Jerome’s motion is without merit, and the trial court properly denied it.

We observe that Jerome has raised the identical claims in several previous-filed postconviction motions, and the trial court’s denial of those claims has been affirmed on appeal.1 Jerome should be aware that the repeated filing of successive postconviction motions, raising identical claims which have been denied on the merits and affirmed on appeal, is not without consequence. See State v. Spencer, 751 So. 2d 47 (Fla. 1999) (holding that a party who abuses the judicial process by filing repetitious and frivolous pleadings may, upon proper notice, be denied further pro se access to the courts); Section 944.279(1), Florida Statutes (“A prisoner who is found by a court to have brought a frivolous or malicious… collateral criminal proceeding . . . is subject to disciplinary procedures pursuant to the rules of the Department of Corrections.”); Fla. Admin. Code R. 33-601.104 (establishing procedures by which the Department of Corrections may withhold or forfeit a prisoner’s gain time).

Affirmed.

1 See Jerome v. State, 13 So. 3d 1065 (Fla. 3d DCA 2009); Jerome v. State, 3 So. 3d 1262 (Fla. 3d DCA 2009); Jerome v. State, 980 So. 2d 505 (Fla. 3d DCA 2008); Jerome v. State, 891 So. 2d 1197 (Fla. 3d DCA 2005); Jerome v. State, 810 So. 2d 951 (Fla. 3d DCA 2002); Jerome v. State, 744 So. 2d 1255 (Fla. 3d DCA 1999).

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

STEVEN MARK SIEGEL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D08-1524 [July 27, 2011]

WARNER, J.

Appellant, Steven Mark Siegel, appeals his conviction for attempting to seduce a minor over the internet in violation of section 847.0135(3), Florida Statutes (2002). We reverse, because the trial court erred in disallowing Siegel’s peremptory challenge to two female jurors when defense counsel provided a genuine, gender-neutral reason for each challenge. In addition, the court erred in permitting the state to cross-examine Siegel regarding his prior counsel’s defense of him in another case, as Siegel did not “open the door” to this irrelevant evidence. Finally, we reject Siegel’s claim that he is entitled to additional discovery from the state regarding the computer hard drives used to save the alleged online communications that formed the basis for the charge against him.

Siegel was charged by information with one count of knowingly utilizing the internet to attempt to seduce, solicit, lure, or entice a child, or a person believed to be a child, to commit any illegal act relating to sexual battery, lewdness, or child abuse, in violation of section 847.0135(3), Florida Statutes (2002) over a period of nine months in 2003. The state alleged that Siegel engaged in multiple alleged internet communications with a Boynton Beach male detective posing as a 14- year-old girl. During those conversations starting in January of 2003, most of which were initiated by Siegel, he asked “Monica,” the online name used by the detective, about her age and sexual history and then engaged in a graphic sexual conversation with “Monica,” describing the sexual acts he wanted to perform with her. While they discussed meeting several times during this nine-month period, at no time did they

agree to meet at a particular time and place. As the summer wore on, he told her that he wanted to talk to her more before meeting her. He never met her and discontinued conversations after October. Thereafter, the state filed charges against him.

Pursuant to section 90.404(2), Florida Statutes, the state filed a pre­trial notice of intent to offer evidence of similar crimes, wrongs, or acts. Specifically, the state sought to offer internet communications that arose from other investigations – one in Pennsylvania and one in St. Lucie County – in which Siegel engaged in internet communications with detectives posing as mothers of sexually active girls. The trial court overruled Siegel’s objections to the evidence, and both incidents were admitted at trial. Siegel was actually arrested in connection with the St. Lucie County incident, but the prosecutor dismissed the charges.

At trial, during jury selection Siegel sought to strike prospective juror Berman, a female school teacher. When the state asked for a gender-neutral reason for the strike of Ms. Berman, defense counsel stated that Siegel “would rather not have someone that has continued contact with children. She is a teacher.” The court ruled: “I find that is not a genuine strike and I disallow it.” Defense counsel added that Berman “said she goes to chat rooms, and I [would] rather have somebody that doesn’t go in chat rooms.” The court reaffirmed its ruling. Siegel also challenged another female teacher, and the court likewise found the reason to be pretextual.

When the selection of the jurors began, defense counsel again reiterated his challenge to the two teachers, which the court again disallowed. After stating again his objection to the selection process, the court decided to begin anew the jury selection process. Defense counsel again challenged Ms. Berman on the ground that she was a teacher who had contact with children. The state did not object, but the court nonetheless announced, “I disallow that strike as it was challenged last time, and I found that [it] was . . . not a genuine strike but actually a pretext based on the State’s request for a gender-neutral reason.”

Defense counsel also challenged Ms. Walker-Raines, a bank manager who had testified that she had a cousin in the Palm Beach County jail charged with a sexual crime – “a similar charge, not involving a computer crime.” When the state requested a gender-neutral reason, defense counsel explained that he did not want her on the jury because she “has a family member who is sitting with a sex crime in prison, and she has two family members with a sex crime.” The court disallowed the strike: “I find that is a pretext . . . and not a genuine strike. She has one cousin

who is in prison for a crime similar to that which your client is accused of.” Defense counsel stated, “It’s a sex crime.” However, the court responded: “And I deny the motion to strike her for peremptory. I find it is an effort, a pretextual effort to strike, so I disallow the strike on Walker-Raines.” Eventually, Siegel accepted the panel subject to his prior objections.

The state’s case consisted primarily of the testimony of the detective who carried on the online conversations as “Monica,” together with the Williams rule evidence of the Pennsylvania and St. Lucie County incidents. After moving for judgment of acquittal at trial, which the trial court denied, Siegel presented a “fantasy” defense that he did not believe he was really talking to a child. In particular, he testified at trial that he believed “Monica” was an adult posing as a 14-year-old because her persona often changed and it was unrealistic for a 14-year-old to say the things that “Monica” talked about during the chats. He likewise believed that he was actually online chatting with adults in both the Pennsylvania and St. Lucie County cases. As to the St. Lucie County case, he testified that it had been dismissed. Finally, he offered expert testimony that people create imaginary identities in online chat rooms for entertainment purposes.

On cross-examination, Siegel acknowledged making statements to the undercover detectives in Pennsylvania and St. Lucie County, including ones regarding wanting to have sex with the daughters of the “mothers” with whom he was communicating. However, with respect to the St. Lucie County prosecution, Siegel added: “[I]t’s obvious I didn’t do anything illegal because the charges once again were dismissed in this case.”

The prosecutor then asked, “Well, these charges were dismissed because you hired an attorney and you engaged in extensive motion practice with the State Attorney, right?” Defense counsel objected on relevancy grounds. The trial court ruled that by repeatedly stating that the charges were dropped in the St. Lucie County case, Siegel opened the door for the prosecutor to “bring in the rest of the story.” The prosecutor then got Siegel to acknowledge that he hired a “pretty good attorney” who took depositions, filed a motion to dismiss, filed a motion in limine, and filed a speedy trial demand, after which the state attorney dropped the charges. Siegel explained that he made the speedy trial demand because he believed the state had a weak case, the state attorney repeatedly asked for continuances, and he wanted a resolution of the case. In closing argument, the state again referenced the fact that Siegel hired an attorney to defend him against the St. Lucie County prosecution:

[STATE]: Now it’s true that the state attorney up in Fort Pierce dropped the charges against the defendant, and that was after the defendant hired an attorney. His attorney filed numerous motions, took depositions, demanded speedy trial, but the fact remains the defendant did all of the things that you heard in this trial.

The jury convicted Siegel as charged, and the trial court sentenced him to five years of sex-offender probation. This appeal follows.

In his first, and dispositive, issue on appeal, Siegel argues that the trial court erred by denying his peremptory challenges to the two female jurors after he offered valid gender-neutral reasons for them. He claims that in both instances, the court failed to engage in the requisite genuineness analysis, and that even if the court did engage in an unstated analysis, the findings of pretext were clearly erroneous.

A trial court’s rulings on the propriety of peremptory challenges are reviewed under the abuse of discretion standard. See Franqui v. State, 699 So. 2d 1332, 1334-35 (Fla. 1997). In Melbourne v. State, 679 So. 2d 759 (Fla. 1996), our supreme court set forth a three-part procedure that must b e followed whenever a peremptory strike is challenged as discriminatory. First, the objecting party must make a timely objection, show that the venire person is a member of a distinct protected group, and request that the court ask the striking party to provide a reason for the strike. Id. at 764. Second, the burden shifts to the proponent of the strike to come forward with a race-neutral or gender-neutral explanation. See id.; see also Welch v. State, 992 So. 2d 206 (Fla. 2008) (applying Melbourne to claims of gender-based discrimination). Third, if the explanation is facially race-neutral or gender-neutral, the court must determine whether the explanation is a pretext “given all the circumstances surrounding the strike.” Melbourne, 679 So. 2d at 764. “The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness.” Id.

Circumstances that are relevant to the “genuineness” inquiry may include, but are not limited to: the racial (or gender) make-up of the venire; prior strikes exercised against the same racial (or gender) group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment. Melbourne, 679 So. 2d at 764 n.8. Likewise, while the constitution does not require that the explanation be reasonable, reasonableness is one factor that a court may consider in assessing genuineness. Id. at n.9. Because identifying the true nature of an attorney’s motive behind a peremptory strike turns

primarily on a credibility determination, a trial judge’s ruling on the genuineness of a peremptory challenge will be affirmed on appeal unless clearly erroneous. Young v. State, 744 So. 2d 1077, 1082 (Fla. 4th DCA 1999).

“There is nothing in Melbourne which requires trial judges to articulate their thought process on the issue of pretext.” Johnson v. State, 706 So. 2d 401, 404 (Fla. 3d DCA 1998). But “where a gender or race neutral reason was advanced for the strike, the reason advanced is itself reasonable, and the record is devoid of any indication that the trial judge considered the relevant circumstances surrounding the strike in concluding that it was motivated by improper purposes,” an appellate court must conclude that the trial judge failed to adequately engage in the “genuineness inquiry” mandated by Melbourne. See Jones v. State, 787 So. 2d 154, 157 (Fla. 4th DCA 2001). In Jones, we held that the trial court failed to engage in proper genuineness analysis where defense counsel offered a valid gender-neutral reason that the prospective female juror had served in a federal gun case resulting in a guilty verdict, but the trial court merely stated: “[I] don’t think it’s a genuine strike. As far as I am concerned, she is as qualified as anyone else.” Id. at 155-57.

Here, as in Jones, the relevant colloquy between counsel and the trial court indicates that the court never really undertook a “genuineness” analysis, but simply stated that the reasons for the strikes were pretextual. As noted above, relevant circumstances that the trial court is to consider in determining the “genuineness” of a strike include the racial or gender make-up of the venire; prior strikes exercised against the same group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment. Melbourne, 679 So. 2d at 764 n.8. Nothing in the record suggests that consideration was given to any of these factors, many of which were relevant.

Even if the court engaged in an unstated analysis of the genuineness of the strikes, we find that it was clearly erroneous for the trial court to determine that the reasons for exercising a peremptory strike to jurors Berman and Walker-Raines were not genuine. When defense counsel sought to strike Ms. Berman, no prior strikes had been exercised against women. The reason stated for the strike – that juror Berman was a school teacher who had routine contact with children – was both gender-neutral and eminently reasonable in light of the nature of the charged crime. After the court re-started the jury selection process, the prosecutor did not even lodge an objection to the peremptory strike of juror Berman. Instead, the court simply sua sponte disallowed the

challenge because the court had done so the first time around. Nothing in the record supported the court’s conclusion that Siegel was improperly attempting to keep Ms. Berman off the jury because of her gender.

Likewise, even if the court conducted an unstated genuineness analysis of the attempted strike of Ms. Walker-Raines, it was clearly erroneous for the trial court to determine that the reason for the strike was not genuine. Here, the defense sought to strike juror Walker-Raines because she had a relative charged with a sex crime. The fact that a juror has a relative who has been charged with a crime is a facially neutral reason for excusing that juror. Fotopoulos v. State, 608 So. 2d 784, 788 (Fla. 1992). The reason for defense counsel’s strike was not applicable to any other jurors, and there was no indication that the defense was singling out juror Walker-Raines. Although males comprised the majority of the venire, this was only the second attempted strike of a female juror after the court re-started the jury selection process. Quite simply, the record did not support the trial court’s conclusion that defense counsel’s reason for the strike was a pretext for keeping Ms. Walker-Raines off the jury because of her gender.

In sum, the relevant colloquy between defense counsel and the trial court indicates that the court never really undertook a “genuineness” analysis, and it was clearly erroneous for the court to determine that defense counsel’s stated reasons for the strikes were pretextual. We thus must reverse for a new trial.

Because we are reversing for a new trial, we also address the state’s cross-examination of Siegel regarding his legal representation in the St. Lucie County case. While the state contends that Siegel opened the door to the questions about his defense of the case when he testified that the dismissal of the charges meant that he did not do anything illegal in that case, we disagree.

The trial court has broad discretion to make determinations regarding the scope of cross-examination, and its decisions regarding the admissibility of testimony are reviewed for an abuse of discretion. Graves v. State, 937 So. 2d 1286, 1290 (Fla. 4th DCA 2006).

The evidentiary concept of “opening the door” allows the admission of otherwise inadmissible testimony to qualify, explain, or limit testimony or evidence previously admitted. Rodriguez v. State, 753 So. 2d 29, 42 (Fla. 2000). This principle is premised on “considerations of fairness and the truth-seeking function of a trial.” Id. (internal quotations and citation omitted). In order to open the door, the witness must offer misleading

testimony or make a specific factual assertion which the opposing party has the right to correct so that the jury will not be misled. Cullen v. State, 920 So. 2d 1155, 1156 (Fla. 4th DCA 2006).

The mere fact that testimony may be characterized as incomplete or misleading, however, does not automatically trigger the admission of otherwise inadmissible evidence under the “opening the door” rule. Redd v. State, 49 So. 3d 329, 333 (Fla. 1st DCA 2010). “Rather, the State must demonstrate a legitimate need to resort to such evidence to correct a false impression. Otherwise, the ‘opening the door’ rule threatens to become a pretext for the illegitimate use of inadmissible evidence, and the fairness-promoting purpose of the rule is lost.” Id. (citations omitted). Because fairness is clearly the focus of the rule, “the general unreliability of inadmissible evidence should b e one of the court’s considerations in determining whether fairness requires admission.” Jordan v. State, 694 So. 2d 708, 712 (Fla. 1997) (internal quotations and citation omitted).

Here, Siegel’s testimony that the charges in the St. Lucie County case were dropped was irrelevant. As Professor Ehrhardt has explained, the relevancy of similar-fact evidence “flows from the underlying act rather than the state or the judicial system having taken a particular action with respect to the charges.” Charles W. Ehrhardt, Florida Evidence, § 404.9 (2010); see also Holland v. State, 432 So. 2d 60, 61 (Fla. 1st DCA 1983) (holding that trial court did not err in denying the defendant’s request to inform the jury that the Williams rule offense had been nolle prossed), approved, 466 So. 2d 207 (Fla. 1985). Thus, the prosecutor could have, and should have, moved to strike Siegel’s testimony when he volunteered that he did not do anything illegal because the charges in the St. Lucie County case were dismissed.

While Siegel’s testimony was irrelevant, it is not clear that this testimony was misleading or incomplete. Siegel’s testimony that the charges against him in the St. Lucie County case were nolle prossed was factually accurate. Even if we were to assume that Siegel gave misleading testimony regarding the dismissal of the charges in St. Lucie County and his belief that he did nothing illegal, the state did not have a legitimate need to resort to cross-examining Siegel in depth regarding the tactics of his legal defense of the St. Lucie County prosecution. Siegel’s testimony was not so misleading or incomplete as to open the door to the prosecutor’s prejudicial cross-examination of Siegel regarding every legal maneuver his attorney took in the defense of the St. Lucie County prosecution. The obvious purpose of this line of questioning was to suggest to the jury that Siegel escaped justice in the St. Lucie County

case through his attorney’s legal machinations. This is highly offensive to the constitutional right of counsel guaranteed b y th e Sixth Amendment and should never have been allowed. Even without the error in jury selection, we would have reversed on this issue, as we could not consider it harmless beyond a reasonable doubt. On re-trial neither side should refer to the dismissal of the St. Lucie County charges.

Finally, we address the trial court’s denial of Siegel’s motion to inspect the hard drive of the Boynton Beach computer to review the online chats. Before trial, Siegel also moved to compel production of the hard drives used to record the communications in the Boynton Beach case and the communications involved in the similar-act investigations. Siegel argued that inspecting the hard drives was critical to verify the accuracy of the printouts of the conversations provided by the state and check the dates of the communications. The prosecutor opposed the motion, arguing that inspection of the Boynton Beach hard drive would endanger ongoing investigations by revealing confidential information also contained on the hard drive. The state’s forensic expert likewise testified that inspection of the hard drives could endanger other investigations. The defense offered to agree to necessary security precautions, but none were specifically identified. The court ruled that the state did not have to produce the drives themselves, but had to produce: “if it can be obtained or retrieved: the dates of the chats and the IP address of the computer that the chats or messages were received from.”

Siegel argues that the trial court abused its discretion in denying his motion to compel production of the Boynton Beach hard drive, claiming that the drive was material to his defense and required by the interests of justice. The state responds that the court received expert testimony that the production of the drive would jeopardize other investigations, and that Siegel did not make a material showing that the hard drive contained exculpatory evidence.

Florida Rule of Criminal Procedure 3.220(f) authorizes a court to “require such other discovery to the parties as justice may require” upon “a showing of materiality.” Fla. R. Crim. P. 3.220(f). “In the discovery context, material means reasonably calculated to lead to admissible evidence.” Franklin v. State, 975 So. 2d 1188, 1190 (Fla. 1st DCA 2008). “[T]he very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.” State v. Gonsalves, 661 So. 2d 1281, 1282 (Fla. 4th DCA 1995). Nevertheless, the rule also provides for the issuance of protective orders to exempt matters from discovery “on a showing of good cause.” Fla. R. Crim. P. 3.220(l).

The prosecutor provided to the defense copies of the online chat room statements, thus fulfilling its duty pursuant to rule 3.220(b). The defense seeks the underlying computer data of those statements, but the prosecution claims that permitting inspection would compromise other investigations whose data is also on the computer. An adequate and secure method for securing such communications was not proposed. There is no evidence that material information has been withheld,1 as the prosecutor delivered to the defense the transcripts of the statements. The trial court is invested with discretion to determine whether good cause to limit or deny discovery, and based upon this record we cannot conclude that the court abused its discretion.

We affirm all of the remaining issues raised by Seigel. Because of the reversal on the issues addressed in this opinion, we remand for a new trial.

POLEN and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge; L.T. Case No. 06-2985 CFA02.

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

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

Not final until disposition of timely filed motion for rehearing.

1 Siegel argues that he did show that the data was material in that he claimed that the transcripts were not complete, in light of certain issues pertaining to the accuracy of the chats (e.g., the fact that there was a gap, one of the chats contained an incorrect timing sequence, there were different dates listed for the same chat in one instance, and there were formatting inconsistencies). However, our reading of the officer’s testimony is that these were cut-and-paste errors when he copied the chats from the chat window into a Word document. This testimony is insufficient to show that the data itself was materially altered.

Courtesy of David Edelstein

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