Florida Criminal Law Opinions

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

GERARDO GABRIEL GUZMAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-4041 [July 27, 2011]

MAY, C.J.

Criminal punishment of juvenile offenders and the United States Constitution come face to face in this appeal. The defendant appeals his life sentence1 on a violation of probation stemming from his conviction on multiple felony charges when he was fourteen years of age. He argues, among other issues, that the Eighth Amendment’s protection against cruel and unusual punishment prohibits the court from imposing a life sentence without the possibility of parole for a crime, other than homicide, committed while he was under the age of eighteen. We agree and reverse on this issue. The remaining issues are either moot or without merit.

At the age of fourteen, the defendant committed several violent robberies of senior citizens. The State charged the defendant as an adult with four counts of robbery, two counts of battery on a person over sixty-five, one count of aggravated battery on a person over sixty five, one count of battery, and one count of burglary of a conveyance with an assault or battery.2 The defendant entered an open plea of guilty on all charges.

1 Because Florida abolished parole, a life sentence is without the possibility of parole. See § 921.002, Fla. Stat. (2007) (“The provisions of chapter 947, relating to parole, shall not apply to persons sentenced under the Criminal Punishment Code.”).

2 The State direct filed against the defendant, pursuant to section 985.557, Florida Statutes (2007).

The court wanted to craft a sentence which could rehabilitate the defendant while ensuring public safety. The State suggested that the court sentence the defendant on the burglary of a conveyance with an assault or battery, a life felony, to adult probation to run consecutive to other juvenile sanctions. After some discussion with the prosecutor and defense counsel, the court adjudicated the defendant delinquent and committed the defendant to a maximum risk residential commitment program for an indeterminate period of time, followed by juvenile probation, not to exceed his nineteenth birthday. Upon his nineteenth birthday, the defendant would begin serving fifteen years of adult probation on the life felony charge. The defendant did not object to the sentence and did not appeal.

Shortly after the defendant turned eighteen, he was charged with the kidnapping and false imprisonment of his cousin with the intent to terrorize him. The probation officer also filed an affidavit and warrant for violation of probation.

While the jury was deliberating the kidnapping charge, the trial court conducted the final violation hearing based partly on evidence it heard during the trial. The State also called the defendant’s probation officer. The defendant testified that he knew he was not permitted to commit new crimes while on probation.

The court found the defendant had violated his probation. The jury found the defendant guilty as charged. At the sentencing hearing, defense counsel asked for a youthful offender sentence; the State requested a life sentence. The trial judge explained:

I understand that young people sometimes d o stupid impulsive things . . . . [] [A]nd I’ll give them a break and withhold and rehab and counseling and treatment and all that stuff, even though the law tells me I’m suppose[sic] to punish them, I have a soft spot in my heart for young people that do stupid impulsive things. . . .

[] [T]his is a different—entirely different creature. This is not even in the same league as the young kid doing something stupid and impulsive, these are really, really serious crimes that, [] represent a danger to the community. . . . [and] the means by which to effectuate the robbery was to go out and purposely target the weakest, most vulnerable among us, including an 80-year-old woman, and batter them, one of them batter[ed] them in a severe way, that’s not

something any 13 or 14-year-old kid would do under the influence of anyone. That’s–that’s sociopathic behavior. That’s scary behavior. . . . This—this is predatory reprehensible violent conduct that no one would do under any stretch of the imagination.

Nevertheless, the Court System recognized that he was young, that he was youthful, that he was perhaps under the sway or influence or dominion of this older reprehensible guy that picked him up and plied him—and they gave him the break of a lifetime, a bunch of juvenile sanctions and probation on a first PBL. . . .

But instead in 2007 no longer the young naïve little 14 or 15-year-old, he goes out and commits another crime of violence, kidnapping, []which he was found guilty following a jury trial. [] [A]gain, predatory type sociopathic type behavior. And for the protection of the public . . . I’ll revoke and terminate his probation unsuccessfully for the burglary of a conveyance with an assault or battery, adjudicate him guilty, sentence him to life in prison. . . .

. . . .

. . . In [] the kidnapping, I will adjudicate him guilty, sentence him to life in prison.

The defendant filed a rule 3.800(b) motion asking the court to vacate his life sentences because they constituted cruel a n d unusual punishment. Fla. R. Crim. P. 3.800(b). The trial court denied relief. The trial court was aware of the cases then pending before the United States Supreme Court, but distinguished the present case because the defendant committed the kidnapping after he turned eighteen.

On appeal, the defendant now argues that the life sentence for burglary with an assault or battery violated the Eighth Amendment because he was fourteen years old when the crime was committed. The State responds that this case is distinguishable from Graham v. Florida, 130 S. Ct. 2011 (2010) because the defendant was eighteen when he committed the kidnapping, which served as the basis for the violation of probation.

Because we review this sentence in the context of a constitutional violation, our review is de novo. Zingale v. Powell, 885 So. 2d 277, 280 (Fla. 2004).

Our decision is controlled by the recent decision of the United States Supreme Court in Graham. There, the Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Id. at 2034. The Court first examined sentencing practices in jurisdictions where life sentences without parole are permitted for juvenile offenders in non-homicide cases.3 The opinion referenced a study, which found Florida in the minority of jurisdictions that actually impose such sentences and accounted for the majority of juveniles serving life sentences without parole for non-homicide offenses. Id. at 2023.

Next, the Court undertook “consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. . . . the Court also consider[ed] whether the challenged sentencing practice serve[d] legitimate penological goals.” Id. at 2026 (citations omitted). The Court paid particular attention to the differences between juveniles and adults. Id. The Court noted “juveniles have ‘a lack of maturity and an underdeveloped sense of responsibility’; they ‘are more vulnerable or susceptible to negative influences and outside pressures’ . . . and their characters are ‘not as well formed.’” Id. (quoting Roper v. Simmons, 543 U.S. 551, 569-70 (2005)). In addition, the Court noted “[j]uveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are actions of adults.” Id. (quoting Roper, 543 U.S. at 570).

When considering the penological goals of a life sentence without parole, the Court cautioned that “[b]ecause juveniles’ ‘lack of maturity and underdeveloped sense of responsibility. . . often result in impetuous and ill-considered actions and decisions,’ they are less likely to take a possible punishment into consideration when making decisions.” Id. at 2028-29 (citation omitted); see also Bell v. Haws, No. CV09-3346, 2010 WL 3447218, at *10 (C.D. Cal. July 14, 2010). By imposing a life sentence without the possibility of parole, the State effectively denies a juvenile “any chance to later demonstrate that he is fit to rejoin society

3 Paolo G. Annino, David W. Rasmussen & Chelsea B. Rice, Juvenile Life Without Parole for Non-Homicide Offenses: Florida Compared to Nation (FSU College of Law, Public Law Research Paper No. 399, Sept. 14, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1490079.

based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.” Graham, 130 S.Ct. at 2033.

Here, the defendant is a member of that limited class of people, juvenile offenders who have committed non-homicide crimes, protected by the Eighth Amendment. See Bell, 2010 WL 3447218, at *10. The defendant was originally arrested when h e was fourteen years old. Although h e was a n adult when h e violated his probation, the probationary sentence was imposed for crimes he committed when he was fourteen. Under Graham, such a sentence violates the Eighth Amendment and is unconstitutional.

The State argues that this case is distinguishable from Graham because the defendant was eighteen when he committed the offense that violated his probation. While true, he was separately sentenced to life for the new crime he committed when he was eighteen. He cannot, however, receive a life sentence for the crimes he committed when he was fourteen years old.

Graham fashioned a bright line rule prohibiting the imposition of a life sentence without parole on a person who commits an offense, other than a homicide, while under the age of eighteen. See also Lavrrick v. State, 45 So. 3d 893 (Fla. 3d DCA 2010) (reversing a life sentence imposed on an eighteen-year-old defendant for violating probation imposed for non-homicide offenses committed while he was sixteen). Any deviation from that rule casts doubt on the very underpinnings of the Supreme Court’s decision. We therefore reverse the life sentence on the violation of probation and remand the case to the trial court for resentencing on the violation only.

Reversed and Remanded. DAMOORGIAN and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case Nos. 562004CF000978A and 562007CF005371B.

Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.

Pamela J o Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, 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

July Term 2011

RICHARD M. MORRIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-4832 [July 27, 2011]

PER CURIAM.

Affirmed. See McMullen v. State, 714 So. 2d 368, 372 (Fla. 1998) (recognizing “the admissibility of expert testimony regarding the reliability of eyewitness testimony is left to the sound discretion of the trial judge”); Johnson v. State, 438 So. 2d 774, 777 (Fla. 1983) (finding no abuse of discretion in refusal to permit psychology professor to testify concerning common problems with eyewitness identification; “a jury is fully capable of assessing a witness’ ability to perceive and remember, given the assistance of cross-examination and cautionary instructions, without the aid of expert testimony”).

STEVENSON, GROSS, JJ., and STREITFELD, JEFFREY E., Associate Judge, concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert A. Hawley, Judge; L.T. Case No. 312007CF000671A.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

ONELSON J. FRANCOIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-5123 [ July 27, 2011 ]

TAYLOR, J.

Defendant Onelson J. Francois was tried by a jury and found guilty of burglary of a structure while armed with a shotgun and attempted robbery with a firearm that he actually possessed and discharged. He raises two issues on appeal: (1) the trial court erred in denying his motion for judgment of acquittal because a witness’s testimony concerning the defendant’s admission was too vague, and (2) the trial court erred in summarily denying the jury’s request for a transcript of testimony without advising the jury that it could have the testimony read back. We reverse only as to the issue concerning testimony read back.

Neam Duffy, the manager of a check cashing store on Sunrise Boulevard in Broward County, Florida, testified that on July 12, 2007, he had closed the store at 9 p.m. and was balancing the vault and counting cash in the “cage” behind an armored, locked door and bulletproof glass when he heard a loud noise. He saw a man jump through the front window and shoot at the door. Duffy heard breaking glass, two gun shots, and banging on the door. He hit the panic button and called 911. He saw a black male, about 5’9” and 190 pounds, holding a shotgun, but because it was dark he could not see his face. A surveillance video of the incident was introduced into evidence at trial.

Cornel Dorsey, who lived on the street next to the check cashing store, was outside with his family. He saw an unfamiliar truck parked in his yard and heard shots fired. Because it was July, he thought they were fireworks. About five minutes later, he saw a black male jump over his fence and hop in the truck. The truck was a white Chevrolet. Dorsey

wrote down the tag number and observed that the plate was from either Ohio or Idaho. The tag number was traced to a truck that had formerly belonged to Nathan McKinney. McKinney had recently sold the truck to his co-worker, Michael Zoyes. The truck was used at their place of employment, where the defendant also worked.

McKinney testified that on July 12, 2007, he worked for McKinney Signs and drove a 1993 white Chevrolet pickup truck with Ohio tags. He sold the truck to Mike Zoyes, the sales manager of McKinney Signs. The truck was used for the business and anyone at work who needed to use it would drive it. McKinney identified State’s Exhibit 2, a picture of the truck Dorsey had described.

McKinney testified that the defendant rode with him a lot but he did not know whether the defendant would take the truck home. Zoyes, however, confirmed that both he and the defendant sometimes took the truck home at night. McKinney testified that some time after July 12, 2007, he and the defendant were riding together when the defendant told him about an incident with a shotgun. The defendant said that he had tried to break into a check cashing store on Sunrise Boulevard. McKinney testified as follows:

McKINNEY: On that date exactly we were just riding along nonchalantly. He talked about an incident at hand with a shotgun. He did not go into details. He was upset. My first question was, did you use my truck? He said no. I said okay.

STATE: What did he tell you? He mentioned a shotgun?

McKINNEY: He said getting in a front door with a 12 gauge. I said I don’t remember the details on that. It is over two years now.

STATE: Anything that would refresh your recollection? McKINNEY: Refresh? Other than the statement at the time that my memory was fresh.

STATE: July 24, 2007, page 305. I want you to read that top portion. When you are done look up at me.

McKINNEY: Oh, yeah. He apparently used a spark plug to try to break the window and shot up with a 12 gauge. He was upset when he couldn’t get in and took off.

STATE: Did he tell you what kind of business?

McKINNEY: Not at that time. I think I asked him later. I think he said a check cashing store. I was curious what kind of door he couldn’t get in.

STATE: What did he tell you he did with the shotgun?

McKINNEY: He said he threw it into the bushes when he took off. I’m going by my statement at the time.

When asked if the defendant told him where the check cashing store was located, McKinney said he thought it was the one on Sunrise Boulevard. On cross-examination, McKinney explained that his conversation with the defendant was short. He said, “On the initial conversation, I think I pretty much dropped it once he said he did not use my truck. Once he said my truck was not involved, I had nothing to do with it.”

The defendant was interviewed by the police. He admitted that he drove the truck on the night of the burglary but denied committing the crimes. He said he spent the night at his girlfriend’s house. Police who responded to the scene found a shotgun—a JC Higgins Mile 20, 12 gauge Sears Roebuck shotgun—and a bookbag between the two fences. The gun was loaded. At the check cashing store, police found a shattered window, broken glass, fired shots, a gun cartridge, a spent shell casing, and a live round. The officers did not remember finding a spark plug at the scene. No DNA evidence or fingerprints linked the defendant to the crime scene. The defendant was arrested on the charges over a year later.

After the state rested, the defendant moved for a judgment of acquittal. The motion was denied. The defendant took the stand and denied being involved in the check cashing store burglary and attempted robbery. He said that he never made any admissions to Nathan McKinney.

During deliberations, the jury requested to see McKinney’s testimony:

COURT: Can we see the testimonial transcripts of Nathan McKinney? Th e answer is no. You cannot see the transcripts of Nathan McKinney.

Do you agree, State.

STATE: Cannot see them, but read it back.

COURT: Do you agree, Mr. Vargas?

DEFENSE: I agree.

COURT: The answer is no. Bring them in.

(Thereupon, Jury entered at 3:50 p.m.)

COURT: Let the record reflect that the jury is within the courtroom. Be seated.

Members of the Jury, you have asked the following: Can we see the testimony and transcripts of Nathan McKinney?

I am not able to grant your request. Please continue with your deliberations.

In his first point on appeal, the defendant argues that his alleged confession to Nathan McKinney was too vague to support his conviction.1 He points out that this was the only evidence in the case that connected him to the crimes.

“The trial court determines the admissibility of a confession with regard to whether it was given voluntarily. However, it normally is up to the trier of fact to determine the credibility of the confession, as well as the credit to b e given to the witnesses who testify regarding the confession.” Williams v. State, 774 So. 2d 931, 933 (Fla. 5th DCA 2001) (citing 24 Fla. Jur. 2d § 483).

In Williams, the defendant confessed to being involved in a robbery in Sumter County on June 8th. Id. Although he did not mention the specific location of the robbery, he identified three other people who participated in the robbery. Id. He also accurately described the manner in which the charged robbery took place. Id. An officer testified that no robberies were reported in Sumter County on June 8th, other than the Best Western robbery by three persons involved in Williams. Id.

The Fifth District Court of Appeal affirmed the denial of Williams’ motion for judgment of acquittal. It held that there was sufficient evidence, in addition to Williams’ confession, to support his conviction of robbery, even though his confession did not contain a location of the robbery. Id. at 934. The court concluded that “there was no view of the evidence in which the jury could have reasonably concluded [the defendant] was involved in a robbery different from the one in [that] case.” Id.

Similarly, here, the defendant’s confession to McKinney was sufficiently specific to the burglary of the check cashing store on Sunrise Boulevard that occurred on July 12, 2007. Although McKinney did not specify the date of the burglary, except to say that his conversation with the defendant occurred after July 12, 2007, th e confession was

1 We disagree with the state’s position that this issue was not preserved. Defense counsel made this argument, among others, during his motion for judgment of acquittal, stating, “There was testimony of Mr. McKinney in reference to a conversation he had with [Defendant]. But it was a vague statement about a robbery at a check cashing store that did not lead to identification based upon [Defendant].”

corroborated by other evidence presented at trial, such as the manner in which the burglary was committed. The trial court thus did not err in denying the motion for judgment of acquittal.

The defendant next argues that the trial court erred in denying the jury’s request for a transcript of testimony without advising the jury it could have the testimony read back. For support, he cites our recent decision in Barrow v. State, 27 So. 3d 211 (Fla. 4th DCA 2010). There, the jury requested to see all the transcripts of the witnesses; the judge indicated his response would be “there are no transcripts.” Id. at 215. When the state suggested that the judge inform the jury that they could request a read back of the testimony, the judge responded, “No, I don’t do read backs.” Id. Defense counsel also asked the court to inform the jury that they had the right to ask for a read back. Id. at 216. However, the judge denied this request as well and sent a note to the jury stating: “There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.” Id.

In Barrow, we reversed for a new trial after determining that “the trial judge abused his discretion by responding to the jury’s question about the availability of transcripts in the negative, without advising the jury about the potential for read backs of witnesses’ testimony, ignoring the request of both the state and defense.” Id. at 213. We examined Florida Rule of Criminal Procedure 3.410,2 which concerns a jury’s request to have testimony read to them, and noted that “several Florida cases[3] have found an abuse of judicial discretion when a trial court responds to a jury question about trial testimony or transcripts without letting the jurors know that they may ask for testimony to be read back to them.”

2 Florida Rule of Criminal Procedure 3.410 (2009) provides as follows:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

3 Roper v. State, 608 So. 2d 533 (Fla. 5th DCA 1992); Volk v. State, 754 So. 2d 82 (Fla. 4th DCA 2000); Avila v. State, 781 So. 2d 413 (Fla. 4th DCA 2001); Rigdon v. State, 621 So. 2d 475 (Fla. 4th DCA 1993). We noted that the third district has reached a different result and certified conflict with Hazuri v. State, 23 So. 3d 857 (Fla. 3d DCA 2009). The Florida Supreme Court accepted jurisdiction on May 28, 2010. See State v. Barrow, 49 So. 3d 747 (Fla. 2010).

Id. at 216–17. We followed these cases in Barrow, believing them to be “more in harmony with Florida’s view of a jury’s role in a criminal trial.” Id. at 218. We stated:

Florida law encourages a jury to make a considered, careful evaluation of detailed evidence. As the Supreme Court has written, the “jury has a perfect right to return to the court room at any time and ask questions that are calculated to shed light on the controversy or that will in any way assist it or the court in developing the truth of the controversy.” Part of a trial judge’s role is to forthrightly make the jury aware of those tools available under the rules of criminal procedure that will assist the jury in arriving at its decision. The judge’s role is to facilitate careful deliberation. Deference should be accorded to a jury’s request to more closely examine the trial testimony.

Id. (internal citations omitted).

As in Barrow, the jury in this case requested to “see” the transcripts. The state agreed that the trial court should inform the jury it could not see them, but that the court should “read it back.” Defense counsel agreed with this, but the court simply told the jury, “I’m not able to grant your request. Please continue with your deliberations.” Unlike the trial court in Barrow, the trial court here did not announce any policy of not doing read backs. Nonetheless, based on Barrow, the court’s failure to inform the jury that a “readback” of trial testimony could be available upon request was error. Further, as in Barrow, we do not find this error to be harmless. See Barrow, 27 So. 3d at 219. The jury requested to see Nathan McKinney’s testimony. McKinney’s testimony concerning the defendant’s alleged confession was the crux of the state’s evidence against the defendant. Thus, it cannot be said beyond a reasonable doubt that the error was harmless.

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

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 08-16291 CF10A.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant

Public Defender, West Palm Beach, for appellant.

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

WILLIS MELVIN BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-66

[July 27, 2011]

GROSS, J.

We reverse appellant’s conviction because no record was created of an in camera hearing on a defendant’s motion to disclose a confidential informant, contrary to Florida Rule of Criminal Procedure 3.220(m).

The state charged Willis Brown with the sale or delivery of cocaine and the possession of cocaine. Brown’s arrest was facilitated by a confidential informant. According to the arrest affidavit, the CI was present when an undercover officer purchased crack cocaine from Brown. Before trial, Brown moved for the disclosure of the confidential informant, alleging that he did not sell drugs to an undercover officer, so that the CI’s testimony as to whether the sale occurred was material to the defense.

The trial court held an in camera hearing on Brown’s motion to disclose. Present were the prosecutor, the CI, and the judge. After the in camera hearing, the trial court denied the motion, ruling that “[t]here was nothing about the CI’s testimony that would be exculpatory or tend to favor the Defendant’s position on misidentification or give credence to any other defense the Defendant would have.” After a jury trial, Brown was convicted of both the sale and possession charges.

After he filed his notice of appeal, Brown sought to supplement the record with a transcript of the in camera hearing. However, the digital court recording manager for the circuit court could not locate an audio recording of any in camera hearing in this case.

This case is controlled b y Florida Rule of Criminal Procedure 3.220(m), which sets forth requirements for in camera, ex parte hearings. Subsection (3) of the rule provides:

A record shall be made of proceedings authorized under this subdivision. If the court enters an order granting relief after an in camera inspection or ex parte showing, the entire record of the proceeding shall be sealed and preserved and be made available to the appellate court in the event of an appeal.

(Emphasis added.) Although that rule does not define what constitutes a “record,” Florida Rule of Appellate Procedure 9.200(a)(1) provides that “the record shall consist of the original documents, all exhibits that are not physical evidence, and any transcript(s) of proceedings filed in the lower tribunal.”

This court read rules 9.200(a)(1) and 3.220(m)(3) together in Garcia v. State, 578 So. 2d 325 (Fla. 4th DCA 1991). In Garcia, a defendant charged with drug offenses moved before trial to disclose a confidential informant. Id. at 326. The trial court ordered an in camera hearing with the CI, after which the court denied the defendant’s motion. Id.

In the first appeal from his convictions, we “remanded the case for the trial court to prepare an affidavit setting forth who was present, the findings that were made, and the trial court’s conclusions, at the in-camera hearing.” Id. In the affidavit the trial court filed, it stated “that only the trial judge, prosecutor and informant were present . . . and list[ed] some of its recollections of the hearing.” Id.

With the case back in this court, we determined that the reconstruction was insufficient for appellate review because the defense, clerk, and court reporter were excluded from the hearing. Id. We read rules 3.220(m) and 9.200(a)(1) together as requiring the transcription of in camera hearings. See id. We concluded “that the trial court erred in not having a court reporter present to transcribe the record of the in-camera hearing, as required by rule 3.220(m),” because “[w]ithout a transcription of the hearing, it is impossible to discern exactly what occurred.” Id.

Garcia also explained why a statement of the evidence or proceedings under Florida Rule of Appellate Procedure 9.200(b)(4) was unworkable. Rule 9.200(a)(3) places the burden of making an adequate appellate record o n th e appellant and subsection (b)(4) provides for the

reconstruction of a record when there is no actual record. We held that “a stipulated statement or reconstruction pursuant to Rules 9.200(a)(3) and (b)(4) . . . is not plausible under the circumstances of the case.” Id. “Those rules,” we wrote, “contemplate participation by both parties, which cannot be achieved here because the defense was excluded from the in-camera hearing.” Id.

Garcia concluded that the trial court’s affidavit was insufficient for purposes of the rules and appellate review, because it was a “unilateral recollection.” Id. It therefore reversed, citing Lucero v. State, 564 So. 2d 158 (Fla. 3d DCA 1990), where the third district reversed and remanded a case for a new trial where an in camera hearing was not transcribed.

Trying to avoid the application of Garcia, the state points out that, unlike the situation in Garcia, there has been no attempt to reconstruct the record. However, in Garcia we relinquished jurisdiction because there was no indication of who attended the in camera hearing. Once it was determined that the defense was excluded from the hearing, we held that a Rule 9.200(b)(4) reconstruction was not possible because the rules of appellate procedure “contemplate participation by both parties.” Here, the defense did not attend or participate in the in camera hearing, so it would be fruitless to relinquish the case for reconstruction of the record.

Further, this case is distinguishable from cases where courts have required a defendant to show that the absence of a transcript resulted in prejudicial error. For example, in Jones v. State, the missing transcripts were of a voir dire. See 923 So. 2d 486, 487-88 (Fla. 2006). After an evidentiary hearing on the reconstruction of the record, the trial court determined that the record could not be reconstructed, because no one could testify with precision as to what happened, or as to any specific objections made by defense counsel. Id. at 488?90. The defendant’s claims of prejudice were based largely on his own testimony of possible Neil-Slappy1 objections made by defense counsel. Id. at 487. Ultimately, the Supreme Court held that the defendant’s “pure conjecture and his memory of possible [Neil-Slappy] objections made by his trial counsel, which is unsupported by any of the other evidence presented in the hearing,” was insufficient for the defendant to make the claim that the absence of a transcript of the voir dire somehow prejudiced him. Id. at 489?90. Accordingly, the defendant could not demonstrate that he was being deprived of meaningful appellate review.

1State v. Neil, 457 So. 2d 481 (Fla. 1984); State v. Slappy, 522 So. 2d 18 (Fla. 1988).

The absence of a voir dire transcript differs from the missing record in this case because in Jones the defendant and his lawyer were present during the voir dire, so the defense had the ability to specify how the absence of a transcript harmed the appeal. Here, the defense was excluded from the in camera hearing, so it had no way of knowing what occurred. None of the other absence-of-transcript cases cited by the state involve in camera hearings from which the defense was excluded. See Armstrong v. State, 862 So. 2d 705, 720?21 (Fla. 2003) (voir dire and juror strike conferences); Darling v. State, 808 So. 2d 145, 163 (Fla. 2002) (“certain pretrial hearings”); Ferguson v. Singletary, 632 So. 2d 53, 58 (Fla. 1993) (“voir dire, most of the charge conference, and the end of a discussion of whether Ferguson would testify”).

Reversed and remanded for a new trial. STEVENSON and TAYLOR, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562008CF002872A.

Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

MIRANDA DECKER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-631 [July 27, 2011]

PER CURIAM.

Appellant appeals her convictions for official misconduct and falsifying records. We find the trial court did not abuse its discretion in denying appellant’s motion for a statement of particulars, because the motion essentially asked the state to prove its entire case before trial, and appellant failed to demonstrate a lack of notice, prejudice, surprise, or an inability to prepare an adequate defense. See Brown v. State, 473 So. 2d 1260 (Fla. 1985); Harrison v. State, 557 So. 2d 151 (Fla. 4th DCA 1990). However, we find that appellant’s dual convictions violate her constitutional protection against double jeopardy, as both offenses arose out of the same factual event, and each offense does not contain a separate element not contained within the other. See § 775.021(4)(a), Fla. Stat. (2011); Blockburger v. United States, 284 U.S. 299 (1932). As such, we reverse and remand for the trial court to vacate appellant’s conviction and sentence for falsifying records.

Affirmed in part, reversed in part, and remanded. DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia G. Imperato, Judge; L.T. Case No. 08- 10171CF10A.

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

ABRAHAM BEN YISRAEL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1036

[July 27, 2011]

ON MOTION FOR REHEARING

DAMOORGIAN, J.

We revisit Abraham Yisrael’s challenge to the denial of his motion to correct sentence because on rehearing the State contends that we “overlooked or misapprehended” the fact that Yisrael was sentenced as a habitual violent felony offender as opposed to a habitual felony offender. In response to our initial order to show cause, the State suggested that the case be remanded to permit the trial court to consider whether the prior convictions were sequential and if so, to attach the appropriate documents. The State did not point to the “violent offender” designation or argue its significance. We issued the opinion upon the State’s suggestion. We now withdraw that opinion.

Through its motion for rehearing, the State directs this court to the Florida Supreme Court’s decision in Yisrael’s case to confirm his designation. Yisrael v. State, 993 So. 2d 952 (Fla. 2008). Significantly, while the State’s motion for rehearing was pending, the Florida Supreme Court resolved conflict among the districts as to whether the trial court can designate a defendant as a habitual violent felony offender based on prior convictions that were entered on the same day. Ponton v. State, 36 Fla. L. Weekly S322 (Fla. June 30, 2011). The supreme court noted conflict among the districts, analyzed the controlling statutes, and concluded that “since only one qualifying prior felony is needed for an HVFO adjudication, it does not matter if the conviction for the qualifying prior felony was entered together with, or separate from, convictions for

other qualifying felonies, so long as the qualifying felony conviction was adjudicated separately from and prior to the current offense.” Id. at *5.

In light of Ponton, we grant the State’s motion for rehearing and withdraw this court’s opinion dated May 4, 2011. Based upon the foregoing, we affirm the order on review.

Affirmed.

WARNER and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 01-6729 CF10A.

Abraham Ben Yisrael, Okeechobee, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

STATE OF FLORIDA,

Appellant,

v.

CHRISTOPHER WRIGHT,

Appellee.

No. 4D10-1885 [July 27, 2011]

WARNER, J.

The state appeals the dismissal of its information charging the appellee with attempted delivery of cocaine. Because the undisputed facts would support a prima facie case that the appellee aided and abetted his co-defendant by driving him to set up the sale of cocaine, we reverse.

The trial court granted appellee/defendant Wright’s motion to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), which we review de novo. See State v. Major, 30 So. 3d 608, 609 (Fla. 4th DCA 2010). Initially, a defendant has the burden to show that the undisputed facts do not demonstrate a prima facie case. Id. To defeat a rule 3.190(c)(4) motion, the state need only dispute a material fact alleged by the defendant or provide additional facts which would meet a prima facie case. See State v. Kalogeropolous, 758 So. 2d 110, 111 (Fla. 2000). The state may rely on inferences and circumstantial evidence to meet its burden. See State v. Jaramillo, 951 So. 2d 97, 98-99 (Fla. 2d DCA 2007).

The state charged Wright with attempted delivery of cocaine. Section 893.13(1)(a), Florida Statutes, provides that it is “unlawful for any person to sell, manufacture, or deliver . . . a controlled substance.” A person who aids and abets a confederate in selling or delivering contraband drugs, which are physically possessed only by the confederate, may be convicted of unlawful sale or delivery of the drugs, but not unlawful possession. See L.i v. State, 578 So. 2d 360, 362 (Fla. 3d DCA 1991); see also Sheppard v. State, 996 So. 2d 260, 262 (Fla. 2d DCA 2008).

In this case, the undisputed facts offered in the rule 3.190(c)(4) motion show that Wright drove his co-defendant Garrett and others to a store where Garrett made a phone call to a confidential informant to sell drugs. When the police arrested Garrett, Wright began to drive off. No drugs were found on Wright or in the vehicle. The state then offered evidence that when he exited the car, Wright said to the officer, “I was just giving him a ride to bust a lick, I didn’t have no f g dope.”1 The officer testified that the phrase “bust a lick” was slang for conducting a narcotics transaction.

Because Wright’s statement provided evidence that he knew that he was transporting Garrett for the purposes of concluding a drug transaction, a prima facie case of attempted delivery has been made. See L.i, 578 So. 2d at 362. The state did not have to show possession by Wright to support the charge.

The order dismissing the state’s information is reversed and the cause is remanded with directions to reinstate the charges.

LEVINE and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No. 09-15319 CF10A.

Pamela J o Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellant.

No brief filed for appellee.

Not final until disposition of timely filed motion for rehearing.

1 At the hearing on the motion to dismiss, defense counsel suggested that his examination of the officer revealed grounds for a motion to suppress. The state objected to arguing a motion to suppress, and the court did not address it, nor do we.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

JOSHUA ADERS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2074 [July 27, 2011]

GROSS, J.

Does an officer have reasonable suspicion to effect a traffic stop when he conducts a computer check of a car’s tag and learns that the tag is registered to the same make of car, but to one of a different color? We agree with courts in Indiana and Georgia and hold that under these circumstances an officer may lawfully make a traffic stop under the Fourth Amendment of the United States Constitution.

The facts leading up to the traffic stop in this case are undisputed. At about 1:00 a.m. on a Friday night, Deputy Jason Pickering observed a black two-door Honda. He learned that the Honda’s color did not match the color reported on a law enforcement database, which indicated that the Honda should have been light-blue. Deputy Pickering activated his blue lights and stopped the Honda. The deputy explained his reason for making the stop. “[T]hat struck me as odd,” the deputy stated. “I didn’t know if that tag might not belong to that car or it could have been possibly a stolen vehicle I didn’t know.”

The only occupant in the vehicle was Joshua Aders. He gave Deputy Pickering his vehicle registration and insurance information, which also described the car as light blue. However, the VIN on the car and registration matched. Aders told Deputy Pickering that he had spray painted the car when he bought it but had not yet changed the color on the registration. Deputy Pickering handed back Aders’ license, registration, and insurance information, gave him a warning, and told him he was free to leave. Before Aders left the scene, however, the deputy requested his consent to search the car. Aders consented and

volunteered that he had drug paraphernalia in the car’s center console. The deputy’s search also uncovered marijuana and pills.1

In the circuit court, Aders challenged the traffic stop, arguing that the deputy did not have a reasonable, articulable suspicion to justify an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968). The circuit court ruled that the deputy was justified in making the stop to determine if the license plate was attached to the correct vehicle; the court explained that

[i]t is reasonable for a law enforcement officer to conclude that a registration plate affixed to a vehicle which differs in color from the vehicle described on the registration information from the Florida Department of Highway Safety, Motor Vehicles Division, even if the make and Model are the same or similar, warrants further investigation.

Given the undisputed facts, this case presents a legal issue—the constitutionality of a traffic stop—so the standard of review is de novo.

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, a n d effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this provision.” Whren v. United States, 517 U.S. 806, 809-10 (1996) (citations omitted). Accordingly, the stop must be reasonable for it to comport with the Fourth Amendment. Id. at 810.

“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Id. (citing Delaware v. Prouse, 440 U.S. 648, 659 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)). “Probable cause exists where the totality of the facts known to the officer at the time would cause a reasonable person to believe that an offense has been committed.” State v. Herbert, 8 So. 3d 393, 395 (Fla. 4th DCA 2009) (citing State v. Walker, 991 So. 2d 928, 931 (Fla. 2d DCA 2008)). At the very least, an officer must have an articulable and reasonable suspicion that the driver violated, is violating, or is about to violate a traffic law. See United States

1In the trial court, Aders did not challenge his consent to the search.

v. Arvizu, 534 U.S. 266, 273 (2002); Prouse, 440 U.S. at 654 & n.11, 661, 663.2

In arguing that the traffic stop was invalid, Aders contends there could b e no reasonable suspicion h e violated state law if Deputy Pickering’s sole reason was that the car’s color did not match the color listed in state records, especially, he asserts, where there is no legal requirement that a driver notify the state of color changes. While the statutory and regulatory framework bears out the truth of Aders’ assertion, we nonetheless agree with those courts from other states holding that a color discrepancy between a car and its computer registration creates sufficient reasonable suspicion to justify a traffic stop for further investigation.

Subsection 320.02(1), Florida Statutes (2010), requires an owner to register a vehicle that is “operated or driven on the roads of this state” and the owner “shall apply to the department” for registration “on a form prescribed by the department.” Florida Administrative Code Rule 15- 1.016 lists forms utilized by the Division of Motor Vehicles; there is no form for an owner to report a new paint job to the Department.3 At least one form includes a space for the color as part of the information about a vehicle, but the purpose of the form is not for reporting a change in color.4 Resort to the Florida Vehicle Registration that every driver must carry suggests that a registration may be renewed without having to note a change of color of a vehicle. The state has not and could not cite to a regulation or statute that Aders violated b y failing to notify the department that he had painted his blue car black.

2See also United States v. Harris, 526 F.3d 1334, 1337?38 (11th Cir. 2008) (“A traffic stop, however, is constitutional if it is either based upon probable cause to believe a traffic violation has occurred or justified by reasonable suspicion in accordance with Terry [v. Ohio], 392 U.S. 1 [(1968)].” (citation omitted)); United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (“[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” (footnote omitted)) (en banc).

3For example, the HSMV 82100 form is an affidavit for “Change/Alteration” of body, but it refers to the body of the vehicle and not its color. See Fla. Dep’t of Highway Safety & Motor Vehicles (DHSMV), Affidavit for Change/Alteration of Body, HSMV 82100 (Rev. 5/01), http://www.flhsmv.gov/ dmv/forms/BTR/82100.pdf (last visited July 19, 2011).

4See, e.g., DHSMV, Application for Replacement License Plate, Validation Decal or Parking Permit, HSMV 83146 (Rev. 06/11) S, http://www.flhsmv.gov/ dmv/forms/BTR/83146.pdf (last visited July 19, 2011).

But, Deputy Pickering suspected Aders of improperly transferring a license plate, which is a second-degree misdemeanor under section 320.261, Florida Statutes (2010).5 A color discrepancy is enough to create a reasonable suspicion in the mind of a law enforcement officer of the violation of this criminal law. For example, in Smith v. State, a trooper “initiated [a] traffic stop because a computer check on the vehicle’s license plate revealed that the plate was registered to a yellow Oldsmobile rather than a blue and white one.” 713 N.E.2d 338, 341 (Ind. Ct. App. 1999). After the stop, the trooper discovered that the car belonged to the passenger, “who had painted it a different color, which explained the apparently mismatched license plate.” Id. The Indiana court held that the investigatory stop of the vehicle “was valid and supported by reasonable suspicion.” Id. at 342. Similarly, in Andrews v. State, the court found reasonable suspicion to exist where an officer observed a greenish-gold car that a computer check revealed to be registered as silver in color; the court concluded that it was reasonable for the officer “to infer that the license plate may have been switched from another car.” 658 S.E.2d 126, 127-28 (Ga. Ct. App. 2008).6 Applying Smith and Andrews to this case, we affirm the circuit court’s denial of the motion to suppress.

We acknowledge the case upon which Aders relies, Commonwealth v. Mason, 2010 WL 768721 (Va. Ct. App. Mar. 9, 2010), which on similar facts held that a traffic stop violated the Fourth Amendment. The court in that case appeared to focus on the deputy’s subjective intent in making the stop, rather than on an objective evaluation of the facts. “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” so whether a stop is a pretext is irrelevant as long as it is otherwise justified. Whren, 517 U.S. at 811-13.

5In pertinent part, that statute provides:

Any person who knowingly attaches to any motor vehicle . . . any registration license plate, . . . which plate . . . was not issued and assigned or lawfully transferred to such vehicle, is guilty of a misdemeanor of the second degree . . . .

§ 320.261.

6This case is distinguishable from United States v. Clarke, 881 F. Supp. 115, 116 (D. Del. 1995), where there were facts other than the color discrepancy that supported the traffic stop; for example, the car was seen in a high crime area that had “a large number of stolen vehicles,” the tag was from a state with high incidence of stolen vehicles, and the car was a model that was “commonly stolen.”

Affirmed.

STEVENSON and GERBER, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Sherwood Bauer, Jr., Judge; L.T. Case No. 422010CF000031A.

Brian H. Mallonee, Fort Pierce, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

PATRICK O’HEARN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2158 [July 27, 2011]

PER CURIAM.

Patrick O’Hearn (Defendant) appeals an order of the Broward County circuit court, summarily denying his motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. We affirm without prejudice.

Defendant asked the court to correct his jail time credit, alleging he received 329 days of credit against his sentences in his 2006 case, but only 49 days of credit against his sentences in his 2008 case, requiring him to serve 280 days more than he believed the trial court intended. All his sentences were imposed o n th e same date and were to run concurrently, but it was also his position, which he alleged was consistent with his plea agreement, that the sentencing court intended for his sentences to begin and end on the same date.

The postconviction court denied the motion with an order that stated that the amount of time served on each case would not be the same because Defendant was arrested on each case on separate dates; the time served on each case was accurate.

Defendant was not entitled by law to have the 329 days of credit he received in the 2006 case applied as well to the 2008 case; a defendant is entitled to receive credit only for the amount of time he or she actually served before sentencing for the charge for which he or she is being sentenced. E.g., Harris v. State, 483 So. 2d 111, 113 (Fla. 2d DCA 1986).

However, if Defendant’s plea agreement provided that the sentences for both cases were imposed to run coterminously, but the sentence did not so provide, then his remedy would be to file a sworn rule 3.850 motion to enforce the plea agreement, or to withdraw the plea as involuntary. See Almodovar v. State, 56 So. 3d 898 (Fla. 2d DCA 2011).

Because the instant appeal was pending when the two-year time period for filing a timely rule 3.850 motion expired, Defendant, if he chooses to do so, shall have thirty days from the issuance of the mandate in this case within which to file such a rule 3.850 motion, which shall be considered timely filed.

Affirmed without prejudice.

TAYLOR, HAZOURI and CONNER, JJ., concur.

* * *

Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 08-379CF10B.

Patrick O’Hearn, Sneads, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

MAKENDY ALFRED,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-3176 [July 27, 2011]

STEVENSON, J.

We affirm the trial court’s order summarily denying appellant’s Rule 3.850 motion and amended motion for postconviction relief.

Appellant’s motion and amended motion raised procedurally-barred claims that his plea was involuntary due to ineffective assistance of counsel and appellant’s alleged misunderstanding as to the possible sentence. This court rejected these claims on direct appeal. Alfred v. State, 998 So. 2d 1197 (Fla. 4th DCA 2009) (holding that plea colloquy conclusively showed that appellant was not entitled to relief on his claim that counsel misadvised him as to the potential sentence and holding that any deficiency of trial counsel did not prejudice appellant). A Rule 3.850 motion cannot be used to litigate issues that could have been or were raised and rejected on direct appeal. Teffeteller v. Dugger, 734 So. 2d 1009, 1016 (Fla. 1999); see also Brown v. State, 596 So. 2d 1026, 1028 (Fla. 1992) (“Raising a different argument in a rule 3.850 motion to relitigate an issue raised and rejected on direct appeal is inappropriate.”).

Further, as we already held in the direct appeal, appellant’s allegation that he believed his sentence would be capped at fifteen years is thoroughly refuted by the record. Appellant’s new allegation, which he raised for the first time in his amended postconviction motion—that counsel coached him to lie during the plea colloquy—does not require an evidentiary hearing. A defendant is bound by his sworn answers during a plea colloquy and cannot later disavow those answers by asserting that he lied during the colloquy at counsel’s direction. Iacono v. State, 930 So. 2d 829, 831 (Fla. 4th DCA 2006); see also Polk v. State, 56 So. 3d

804, 808 (Fla. 2d DCA 2011) (agreeing that “a defendant should be estopped to receive an evidentiary hearing on a postconviction claim when the basis of the claim is that he lied under oath at the relevant hearing”).

Affirmed.

TAYLOR and CONNER, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 05-020906 CF10A.

Makendy Alfred, Malone, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

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