Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

 

GARRISON M. STARKES,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

 

CASE NO. 1D11-1723

 

Opinion filed July 22, 2011.

Petition Seeking Belated Appeal — Original Jurisdiction. Garrison M. Starkes, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition seeking a belated appeal of the order denying defendant’s motion for postconviction relief, rendered on or about April 15, 2010, in Duval County Circuit Court case number 16-2003-CF-1630-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

VAN NORTWICK, WETHERELL, and ROWE, JJ., CONCUR.

 

 

Courtesy of David Edelstein

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.

 

WILLIE GRAVES,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

 

CASE NO. 1D11-3320

 

Opinion filed July 22, 2011.

Petition Seeking Belated Appeal — Original Jurisdiction.

Matt Shirk, Public Defender, Fourth Judicial Circuit, and Matt Lufrano, Assistant Public Defender, Jacksonville, for Petitioner.

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

PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about May 17, 2011, in Duval County Circuit court case number 16-2010- CF-014407-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. The court notes that the Office of the Public Defender has been appointed to represent petitioner on appeal.

VAN NORTWICK, WETHERELL, and ROWE, JJ., CONCUR.

 

 

Courtesy of David Edelstein

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.

 

CHARLIE J. BURROUGHS,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

 

CASE NO. 1D11-3464

 

Opinion filed July 22, 2011.

Petition Alleging Ineffective Assistance of Appellate Counsel — Original Jurisdiction.

Charlie J. Burroughs, pro se, Petitioner.

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

PER CURIAM.

For the third time, Charlie Burroughs petitions the court for relief on the theory that his appellate counsel was ineffective for failing to challenge the

 

sufficiency of the evidence. Burroughs’ first petition raising this claim was untimely and denied as such. His second petition was likewise untimely, failed to allege any meritorious basis for an exception to the time limitation, and in addition was determined to be impermissibly successive. Burroughs has now presented the same claim again, and as with his last petition, we determine that this claim is procedurally barred both as untimely under rule 9.141(d)(5) and impermissibly successive under rule 9.141(d)(6)(C). Petitioner is cautioned that the filing of any further procedurally barred petitions claiming that appellate counsel was ineffective in this case may result in the imposition of sanctions, including but not limited to an order prohibiting petitioner from filing any further pro se pleadings in this court.

Petition alleging ineffective assistance of appellate counsel DENIED and DISMISSED.

VAN NORTWICK, WETHERELL, and ROWE, JJ., CONCUR.

 

 

Courtesy of David Edelstein

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.

 

BILLY RAY CHANCE,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

 

Opinion filed July 22, 2011.

 

CASE NO. 1D11-3489

 

Petition Alleging Ineffective Assistance of Appellate Counsel — Original Jurisdiction.

Billy Ray Chance, pro se, Petitioner.

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

PER CURIAM.

By motion mailed from his place of confinement on June 6, 2011, Billy Ray Chance seeks an enlargement of time to file a petition asserting that he was denied the effective assistance of counsel in his direct appeal. We have treated the motion as a petition alleging ineffective assistance of appellate counsel for purposes of exercising our jurisdiction in the matter.

Mandate in petitioner’s direct appeal issued on May 26, 2009. Florida Rule of Appellate Procedure 9.141(d)(5) provides that with one exception not implicated here, a petition alleging ineffective assistance of appellate counsel shall not be filed

 

more than two years after the judgment and sentence becomes final on direct review. Thus, petitioner’s last day for timely raising a claim of ineffective assistance of appellate counsel was May 26, 2011.

In the analogous context of motions for postconviction relief under Florida Rule of Criminal Procedure 3.850, which also are subject to a two-year time limitation, a court may extend the time for filing a motion under that rule upon a showing of good cause if the request for an extension is made before the expiration of the two-year period specified in rule 3.850. See State v. Boyd, 846 So. 2d 458 (Fla. 2003). Assuming for present purposes that an appellate court can likewise extend the time for filing a petition alleging ineffective assistance of appellate counsel, we conclude that petitioner has nonetheless failed to demonstrate an entitlement to that relief. Petitioner’s motion was filed after expiration of the time for filing of a petition asserting that appellate counsel was ineffective, and more to the point, we conclude that petitioner has failed to establish good cause to extend the time, even if his request had been timely made.

Accordingly, petitioner’s request for an enlargement of time is denied, and to the extent his motion has been treated as a petition alleging ineffective assistance of appellate counsel, we conclude that it is procedurally barred by rule 9.141(d)(5), and deny it as such.

VAN NORTWICK, WETHERELL, and ROWE, JJ., CONCUR.

 

 

Courtesy of David Edelstein

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

 

MELVIN D. WILLIAMS,

Appellant,

v.                 Case No. 2D09-3606

STATE OF FLORIDA,

Appellee.

 

Opinion filed July 22, 2011.

Appeal from the Circuit Court for

Hillsborough County; Gregory P. Holder, Judge.

James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Melvin D. Williams appeals his judgments and sentences for burglary of an unoccupied dwelling, dealing in stolen property, and providing false information to a pawnbroker. The trial court dismissed a charge of third-degree grand theft after the jury returned a verdict of guilty on both grand theft and dealing in stolen property. The only issue that Mr. Williams raises in this appeal is his claim that the trial court should have

 

instructed the jury that it could return a verdict on the offense of grand theft or the offense of dealing in stolen property, but not on both offenses, as explained in section 812.025, Florida Statutes (2008). There is conflicting case law on this issue. Compare Kiss v. State, 42 So. 3d 810 (Fla. 4th DCA 2010) (concluding that the proper remedy for allowing a jury to return guilty verdicts for grand theft and dealing in stolen property is to reverse and remand both offenses for a new trial), with Blackmon v. State, 58 So. 3d 343 (Fla. 1st DCA 2011) (disagreeing with Kiss and concluding that when a jury returns verdicts for dealing in stolen property and grand theft, the trial court may vacate the conviction for the lesser offense).

We conclude that the procedural requirements in section 812.025 are unenforceable to the extent that the statute (1) attempts to establish a procedure by which a jury does not return a factual finding announcing a verdict of guilty on each of the two separately charged offenses despite its determination that the State has proven the offenses beyond a reasonable doubt and (2) requires the jury to make this selection without any legal criteria or factual basis.

We note that for many years, trial courts have been attempting to fulfill the apparent substantive intent of this statute by obtaining factual determinations from the jury on both charges and then entering a judgment of conviction and a sentence on the greater charge. While there is an argument that the trial court should enter judgment on the offense resulting in the shorter sentence, this panel will make no request to this court to consider en banc whether we should recede from the established case law, which appears to include case law from the supreme court. Instead, we recognize

conflict with Kiss and certify three questions of great public importance at the end of this opinion.

I. The Facts.

On August 8, 2008, someone burglarized a home in Tampa. The burglar took two digital gaming systems, some DVDs, and a camera. During the investigation of the burglary, the police discovered fingerprints at the scene of the crime that matched Mr. Williams’ fingerprints. A further investigation at a pawn shop established that someone had pawned a digital gaming system on August 9. The event was recorded on a video recorder, and the person who pawned the system appeared to be Mr. Williams. Mr. Williams’ fingerprints were taken at trial, and expert testimony established that the prints from trial matched both the prints at the home and at the pawn shop.

The State charged Mr. Williams with four offenses: (1) burglary of an unoccupied dwelling,1 (2) third-degree grand theft,2 (3) dealing in stolen property,3 and (4) providing false information to a pawnbroker.4 During the jury trial, Mr. Williams asked the court to instruct the jury under section 812.025. The proposed instruction essentially tracked the language of the statute, which states:

Notwithstanding any other provision of law, a single

indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return

1See § 810.02(3)(b), Fla. Stat. (2008). 2See § 812.014(2)(c)(1), Fla. Stat. (2008). 3See § 812.019(1).

4See § 539.001(8), Fla. Stat. (2008).

a guilty verdict on one or the other, but not both, of the counts.

The trial court denied this request, explaining that there was no standard instruction on this topic and that the proposed instruction was inadequate to explain to the jury how to make this decision. The trial court also appears to have been persuaded by the State’s argument that the statute should not apply in this context because Mr. Williams had taken more items in the burglary than he had pawned at the pawnshop.

The jury returned a verdict of guilty as charged on all four counts. At sentencing, the trial court dismissed the grand theft charge, as the lesser of the two offenses. The trial court then sentenced Mr. Williams to fifteen years’ imprisonment for the burglary concurrent with fifteen years’ imprisonment for the offense of dealing in stolen property. It imposed a consecutive five years’ imprisonment for the final offense of providing false information to a pawnbroker. Relying on Kiss, Mr. Williams argues that he is entitled to a new trial because he did not receive the requested instruction.

II. This Court’s Case Law Did Not Require the Trial Court to Provide the

Requested Instruction.

The procedure the trial court utilized to fulfill the intent of section 812.025 is the same procedure that most, if not all, circuit courts have used in this district for many years. When a trial court overlooks this statute, on appeal this court has consistently reversed only the lesser offense and, if necessary, remanded the case for resentencing without consideration of the lesser offense. See, e.g., Wilson v. State, 884 So. 2d 74 (Fla. 2d DCA 2004); Rife v. State, 446 So. 2d 1157 (Fla. 2d DCA 1984); Victory v. State, 422 So. 2d 67 (Fla. 2d DCA 1982).

In Hall v. State, 826 So. 2d 268, 271 (Fla. 2002), which involved a similar dual conviction albeit in the context of a plea, the supreme court held that the defendant could be convicted of only one offense. The court did not remand to allow the defendant to withdraw his plea. Instead it sent the case back to the Fourth District with instructions to reverse one of the two affected judgments and sentences.5 Id. at 272. The supreme court expressly approved this court’s decision in Victory, which had reversed a second judgment and sentence in a similar manner. Id. Even the Fourth District has reversed such cases without ordering a new trial, recognizing that “[t]he remedy routinely imposed under these circumstances . . . is vacating the conviction which carries the lesser sentence.” Anderson v. State, 2 So. 3d 303, 304 (Fla. 4th DCA 2008).6 Thus, in this case, the trial court did not err in following established precedent.

III. The Trial Court Did Not Need to Give the Proposed Instruction on Section

812.025, and We Doubt that Any Instruction is Appropriate in this Context.

Despite the established case law, Mr. Williams preserved this issue in the trial court and now forcefully argues that he was entitled to an instruction that tracks the statute. We disagree because the language of section 812.025 is not an adequate jury instruction and we doubt that there is any adequate method to instruct on this statute for several reasons. This statute is odd in many respects, and we are convinced that the courts of this state will better achieve the legislature’s intent in this statute by following

5We can find no follow-up case from the Fourth District to determine which judgment and sentence it may have reversed.

6The Fourth District has never overruled Anderson v. State, 2 So. 3d 303 (Fla. 4th DCA 2008), in an en banc opinion, and we question the authority of the panel

in Kiss v. State, 42 So. 3d 810 (Fla. 4th DCA 2010), to disregard the routine remedy that the Fourth District had used in prior cases, especially in the context of fundamental error.

 

the current, routine methods and not by giving the jury an instruction that provides them no guidance in their decision.

The legislature enacted this statute in 1977. See Ch. 77-342, § 9, Laws of Fla. As the Fourth District accurately noted in Kiss, the statute is not necessary to avoid a claim of double jeopardy. See 42 So. 3d at 813. Instead, it is a rare, if not unique, form of statutory double jeopardy that announces a legislative policy encouraging the courts to convict a defendant of fewer than all possible offenses in this context. Since 1988, the policy the legislature announced in this statute has been in clear conflict with the policy it announced in section 775.021(4)(b), Florida Statutes (1988). Nevertheless, the legislature is free to announce conflicting policies if it chooses to do so.

On its face, this statute allows the State to charge a defendant with both grand theft and dealing in stolen property. It also allows the State to try these charges in one trial, and presumably the State may present evidence establishing both crimes. The trial court then instructs the jury on the elements of both crimes. But having found that the State has proven both crimes beyond a reasonable doubt, the jury “may return a guilty verdict on one or the other, but not both, of the counts.” § 812.025.

This statute does not prevent a court from entering a judgment, which is the actual adjudication of guilt that is the condition precedent to the entry of a sentence. See Fla. R. Crim. P. 3.650 & 3.700(a). Instead, it essentially prevents a jury from checking a box on a verdict form to disclose its findings of fact as to one of two charges. Significantly, the legislature has given neither the jury nor the trial court any guidance on which of the two boxes the jury should leave empty. This lack of any criteria for the jury’s determination is very problematic.

 

In many cases, grand theft is a third-degree felony and dealing in stolen property is a second-degree felony. See §§ 812.014(2)(c), .019(1). Obviously, grand theft can be a greater felony depending upon the value of the stolen property. See

§ 812.014(2)(a)-(b). Dealing in stolen property is not always a second-degree felony and can even be a misdemeanor in some contexts. See §§ 812.019(1), .0195. A trial court generally does not instruct a jury on the degree of various offenses. Even in

cases of lesser offenses, the trial court typically instructs the jury on the factual issues of the lesser offenses but gives no information about the level of the offense. See

Knight v. State, 668 So. 2d 596, 598 (Fla. 1996). Thus, if the jury is to make this selection on some basis other than a random or arbitrary choice, then the trial court will need to give it extensive, unusual instructions.

To help the jury select between the offenses, it might be logical to inform the jury of the penalty. However, rule 3.390(a) expressly prohibits a trial judge from instructing a jury on the sentence that may be imposed except in capital cases. This rule of procedure essentially overrides the language of section 918.10, Florida Statutes (2008), which has long stated that the charge to the jury “must include the penalty for the offense.” See, e.g., Palazzolo v. State, 754 So. 2d 731, 736 (Fla. 2d DCA 2000) (“[Rule] 3.390(a) overrides section 918.10(1) . . . and precludes an instruction explaining a penalty when the jury will play no role in sentencing.”). In an era of complex sentencing statutes, any attempt to instruct a jury on the relevant penalties would be daunting.7

7In Aversano v. State, 966 So. 2d 493 (Fla. 4th DCA 2007), the Fourth District did not require a new trial in a similar case. Because both grand theft and dealing in stolen property were second-degree felonies in that case, the Fourth District

 

Because the statute contains no criteria, we do not actually know whether the legislature intended the jury to select the greater offense, as would be the case with double jeopardy, or whether it intended the jury to follow the rule of lenity and select the lesser offense. If it intended the jury to have the discretion to pick either the greater or

the lesser offense for any or no reason, the rule would seem to be impermissibly arbitrary.

In many respects, the core problem with this statute is that it is attempting to require the trial court to have the finder of fact make decisions that simply are not factual decisions. After a jury has found that the State proved the elements of both offenses beyond a reasonable doubt, its job is done. It has never been, and should not be, the function of the jury to make additional legal decisions that are not at least mixed questions of fact and law. Nothing in this statute makes the selection of one offense or the other a question of fact or even a mixed question of fact and law.

To make matters more complex, the courts of this state have interpreted the statute to prevent dual convictions in some, but not all, cases. As Justice Canady explained when he was a member of this court:

The State concedes that this provision precluded Wilson from being convicted of both the dealing in stolen property charge and the grand theft charge. As we noted in Rife v. State, 446 So. 2d 1157, 1158 (Fla. 2d DCA 1984), section 812.025 precludes dual convictions for theft and dealing in stolen property only when those charges relate to “one scheme or course of conduct” and thus does not entirely foreclose the possibility of prosecution for both offenses in

required the trial court to vacate the judgment for the offense with the lesser offense severity ranking. It stretches the imagination to believe that we could or should instruct juries on the significance of severity rankings, especially when the trial court is not allowed to use those rankings to determine the order of lesser offenses on a typical verdict form. See also Sanders v. State, 944 So. 2d 203 (Fla. 2006).

 

connection with the same stolen property. However, as was true of the defendant in Rife, Wilson was accused of stealing and selling the same property on the same day. Id. Likewise, nothing in the instant case “meaningfully

disrupt[ed] the flow [of Wilson's conduct] by a clearly disjunctive interval of time or set of circumstances.” Id. Consequently, we conclude that the State correctly concedes error. The State also correctly indicates that the lesser of the two convictions, the grand theft conviction, should be vacated. See id. at 1158; Gray v. State, 611 So.

2d 100, 101 (Fla. 1st DCA 1992); T.S.R. v. State, 596 So. 2d 766, 767 (Fla. 5th DCA 1992).

Wilson v. State, 884 So. 2d 74, 77 (Fla. 2d DCA 2004). In this case, the trial court gave Mr. Williams the benefit of section 812.025, but it is not entirely clear from the evidence that he was entitled to its benefit.

IV. A New Trial is Not an Essential Remedy.

Without regard to the convictions for grand theft and dealing in stolen property, Mr. Williams has proper judgments and sentences for burglary of an unoccupied dwelling and providing false information to a pawnbroker. As a practical matter, his total sentence of twenty years’ imprisonment for these two offenses will not be affected whether his final offense is deemed to be grand theft as a third-degree felony or dealing in stolen property as a second-degree felony. We recognize, however, that from a legal standpoint, he probably has sustained harm if he was convicted of a second-degree felony when the offense should have been the third-degree felony.

In this appeal, Mr. Williams has not asked this court to substitute a judgment and sentence for grand theft for the judgment and sentence he received for dealing in stolen property. He requests a new trial because this was the relief granted

in Kiss. We see no need for such a remedy. The factual determinations of the prior jury appear to be without error. All that remains is to select one offense or the other as the

 

offense resulting in a judgment and sentence.8 The courts have been following the policies of double jeopardy as to this issue. Even if we concluded that we must select the offense with the lesser degree or the lesser penalty, a new trial would not be warranted.

V. Questions of Great Public Importance.

Given that it is fundamental error in at least one district for a trial court to fail to give the instruction that we reject today, and in light of the significant number of cases that are tried involving both of these offenses, we certify the following questions of great public importance:

1. MUST THE TRIAL COURT INSTRUCT THE JURY TO PERFORM THE SELECTION PROCESS DESCRIBED IN SECTION 812.025 OF THE FLORIDA STATUTES?

2. IF SO, MUST THE APPELLATE COURT ORDER A NEW TRIAL ON BOTH OFFENSES IF THE TRIAL COURT FAILS TO GIVE THE INSTRUCTION?

3. IF THE APPELLATE COURT IS NOT REQUIRED TO MANDATE A NEW TRIAL, MUST IT REQUIRE THE TRIAL COURT TO SELECT THE GREATER OFFENSE OR THE LESSER OFFENSE WHEN THE TWO OFFENSES ARE OFFENSES OF DIFFERENT DEGREES OR OF DIFFERENT SEVERITY RANKING?

Affirmed.

KELLY and LaROSE, JJ., Concur.

8Because the statute provides no basis for selection, we could arguably flip a coin to make this decision but our act in doing so would only demonstrate the impropriety of the statute.

 

 

Courtesy of David Edelstein

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

 

JOHN ALAN CERNY, JR.,

a/k/a JOHN ALAN CERNY,

Appellant,

v.                      Case No. 2D09-5338

STATE OF FLORIDA,

Appellee.

 

Opinion filed July 22, 2011.

Appeal from the Circuit Court for

Hillsborough County; Robert A. Foster, Jr., Judge.

James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

John Alan Cerny, Jr., appeals the order revoking his probation and his resulting sentences. Because the State failed to prove by a preponderance of the

 

evidence the new law violation upon which the circuit court based the order revoking Mr. Cerny’s probation, we reverse.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 2007, Mr. Cerny entered guilty pleas to the charges in circuit court case numbers 07-CF-10918, 07-CF-14421, and 07-CF-14452 in exchange for sentences of eighteen months’ probation on the charges.1 Later, on January 10, 2008, Mr. Cerny entered a guilty plea to the charge in circuit court case number 07-CF-23328 for a sentence of thirty-six months’ probation.2 On the same day, the circuit court also sentenced Mr. Cerny in the three other cases to new terms of thirty-six months’ probation based upon Mr. Cerny’s admission to violating his probation in those cases. The circuit court designated Mr. Cerny’s terms of probation in each of the four cases to run concurrently.

On August 5, 2009, Mr. Cerny’s probation officer filed an affidavit of violation of probation alleging that Mr. Cerny had violated his probation in all four cases by committing four new law violations. The alleged new law violations were aggravated battery, domestic violence by strangulation, false imprisonment, and tampering with a witness. The State alleged that each of the four offenses stemmed from an incident occurring on July 29, 2009, involving Mr. Cerny and his father, John Cerny, Sr.

1Mr. Cerny received a sentence of time served in case number 07-CF-10918 on a charge of driving while license was suspended or revoked. The circuit court adjudicated Mr. Cerny to be guilty on each of the offenses in all three cases.

2The circuit court adjudicated Mr. Cerny to be guilty of the offenses charged in case number 07-CF-23328.

 

After a hearing on the alleged violations of probation, the circuit court concluded that the State failed to establish by a preponderance of the evidence that Mr. Cerny had committed the new law violations of domestic violence by strangulation, false imprisonment, and tampering with a witness. Accordingly, the circuit court dismissed the alleged violations of probation based upon those charges. Nevertheless, the circuit court found that Mr. Cerny had violated his probation by committing the new law offense of aggravated battery, and it revoked Mr. Cerny’s probation in all four cases based upon that new law violation. The circuit court imposed the maximum sentence of five years’ prison on each of Mr. Cerny’s underlying third-degree felonies. The circuit court also designated several of the sentences to run consecutively, with the result that Mr. Cerny received sentences totaling twenty years in prison. This appeal followed.

II. THE ARGUMENTS ON APPEAL

On appeal, Mr. Cerny makes two arguments. First, he argues that the circuit court erred in finding that he had violated his probation because (1) the State failed to prove that he committed the offense of aggravated battery and (2) the State relied exclusively on hearsay evidence to establish the alleged violation. Mr. Cerny concludes that the circuit court should have granted his motion to dismiss the alleged violation of probation at the conclusion of the State’s case. We need not discuss Mr. Cerny’s second argument because it is mooted by our disposition of his first argument.

III. THE STANDARD OF REVIEW

AND OTHER PRELIMINARY MATTERS

Our review of an order of revocation of probation is for abuse of discretion. Boyd v. State, 1 So. 3d 1186, 1187 (Fla. 2d DCA 2009). However, before the circuit court can exercise its discretion to revoke probation, the State must establish a violation

 

of probation by the greater weight of the evidence. Id. Here, the State alleged—in pertinent part—that Mr. Cerny had committed the new law violation of aggravated battery. “The proper standard for finding a new law violation is whether a preponderance of the evidence establishes that the probationer committed the charged offense . . . . ‘Proof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking’ probation.” Robinson v. State, 907 So. 2d 1284, 1287 (Fla. 2d DCA 2005) (citations omitted) (quoting Robinson v. State, 609 So. 2d 89, 90 (Fla. 1st DCA 1992)). Although hearsay is admissible in proceedings for revocation of probation, the circuit court may not base a revocation order solely upon hearsay evidence. Boyd, 1 So. 3d at 1187.

IV. THE EVIDENCE PRESENTED AT THE HEARING

At the revocation hearing, the State established that Mr. Cerny and his father shared a home in Temple Terrace. Before the alleged incident, Mr. Cerny’s father had suffered a stroke. As a result, the father had trouble with communicating and walking.

The State presented the testimony of a sheriff’s deputy. The deputy did not witness the incident that formed the basis for the charges. Instead, the deputy had been dispatched to a neighbor’s house on July 29, 2009, the date of the alleged incident. There, the deputy observed and spoke with Mr. Cerny’s father, the alleged victim of the aggravated battery. When the deputy arrived at the neighbor’s house, the father had several injuries to his arms and a laceration to the back of his head. Blood from the injuries was evident. In addition, the father appeared to be nervous and frightened.

 

The deputy testified that the abrasions on the father’s arms appeared to have been sustained in a fall and that the small cuts on his arms looked like he had been struck with an object. The father told the deputy that he had sustained the injuries to his arms in an incident with Mr. Cerny. But when the prosecutor asked the deputy what the father had told her about how he had incurred the injuries, the circuit court sustained defense counsel’s hearsay objection. Thus the State was unable to elicit any hearsay evidence from the deputy concerning the father’s account of the incident.

After speaking with the father, the deputy went to the shared residence and observed what she assumed to be blood from the father on the walls, on the back door, and throughout the house. She took photographs of the father’s injuries and the scene at the house. The State introduced the photographs into evidence at the hearing.

The deputy did not see Mr. Cerny on the day of the incident, but she did see him the next day when he was arrested. At that time, she did not observe that Mr. Cerny had any injuries. The deputy learned that Jeffery Woods was present during the alleged incident. She testified that she interviewed Mr. Woods, but she did not testify concerning the substance of his account of the incident.

The State also called Mr. Cerny’s father to testify. After the father had begun to testify, the defense challenged the father’s competence as a witness. The circuit court agreed that the father was not competent to testify and struck his testimony. After the circuit court struck the father’s testimony, the State rested without presenting any additional evidence concerning the alleged incident. Next, Mr. Cerny moved to dismiss the alleged violation of probation on the ground that the State’s evidence was

 

insufficient to establish a violation. The circuit court reserved ruling on the defense motion.

Mr. Cerny presented the testimony of the eyewitness, Jeffery Woods. Mr. Woods testified that during an argument between Mr. Cerny and his father, Mr. Cerny threw a telephone against a wall. The father then charged at Mr. Cerny and threw him against some cabinets. The collision with the cabinets split a scar over Mr. Cerny’s eye, which started bleeding. According to Mr. Woods, Mr. Cerny never struck his father or hit him with a sharp object. Instead, Mr. Cerny held his father’s arms to calm him down. Thus Mr. Woods identified the father rather than Mr. Cerny as the aggressor in the incident.

Mr. Woods also explained that the blood on the father’s arms came from old injuries that opened during the encounter. Mr. Woods did not see a laceration on the back of the father’s head, but he suggested that such a laceration could have occurred when the father fell in the shower. Mr. Woods testified that the blood at the house probably came from Mr. Cerny’s eye and from the father’s old wounds.

V. THE CIRCUIT COURT’S RULING

At the conclusion of the case, Mr. Cerny renewed his motion to dismiss, arguing that the State had failed to present any evidence to establish that a crime had occurred. The circuit court found Mr. Woods’ testimony to be incredible but accepted his testimony to the extent that it established that there was an altercation between Mr. Cerny and his father. Noting that there was an unexplained injury to the back of the father’s head, the circuit court stated, “I’m going to find that [Mr. Cerny] hit him or pushed him back and hit him in the head. I don’t have any doubt that that occurred.”

 

The circuit court denied the defense motion to dismiss the alleged violation of probation based upon the commission of an aggravated battery and concluded that the State had established that Mr. Cerny had violated his probation by committing an aggravated battery on his father.

VI. DISCUSSION

Mr. Cerny’s father’s statement to the deputy that he received his injuries in an incident involving his son was in evidence at the revocation hearing. With regard to this hearsay testimony, Mr. Cerny devotes considerable attention on appeal to discussing cases that address the use of hearsay together with direct evidence to prove a probationer’s commission of a new law violation. But a review of the record reveals that the State did not present any proof—through either hearsay or direct evidence— that any kind of battery occurred. To establish that a battery occurred, the State had to show that Mr. Cerny intentionally touched or struck his father against his will or intentionally caused him bodily harm. See § 784.03(1), Fla. Stat. (2009). There was no such evidence. Similarly, to prove that an aggravated battery occurred, the State had to show that in committing a battery against his father, Mr. Cerny intentionally or knowingly caused his father great bodily harm, permanent disability, or permanent disfigurement. See § 784.045(1)(a)(1). Alternatively, the State had to show that in committing a battery against his father, Mr. Cerny used a deadly weapon. See § 784.045(1)(a)(2). Once again, there was no such evidence.

Significantly, there was no evidence to support the circuit court’s finding that Mr. Cerny hit or pushed his father back and hit him in the head. We recognize that the circuit court could properly find that Mr. Woods’ testimony for the defense was not

 

worthy of belief. See Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976). But the circuit court’s decision to reject substantially all of Mr. Woods’ testimony as incredible did not cure the deficiencies in the State’s proof. Because the State failed to establish by a preponderance of the evidence that Mr. Cerny committed an aggravated battery on his father, the circuit court erred in revoking Mr. Cerny’s probation based on that alleged new law violation. See Robinson, 907 So. 2d at 1287.

VII. CONCLUSION

For the foregoing reasons, we reverse the order revoking Mr. Cerny’s probation and the resulting sentences. Under the circumstances of this case, double jeopardy does not bar a second revocation proceeding on remand based on the filing of a new affidavit alleging the same violations, see Boyd v. State, 1 So. 3d 1186, 1188 (Fla. 2d DCA 2009); Reeves v. State, 366 So. 2d 1229, 1230 n.2 (Fla. 2d DCA 1979); Scott v. State, 937 So. 2d 746, 748-49 (Fla. 4th DCA 2006), provided that Mr. Cerny’s probationary terms have not expired, see Hernandez v. State, 33 So. 3d 143, 145 (Fla. 2d DCA 2010); Humbert v. State, 933 So. 2d 726, 728 (Fla. 2d DCA 2006); Sharpston v. State, 895 So. 2d 1225, 1226 (Fla. 2d DCA 2005).

Reversed and remanded.

DAVIS, J., Concurs.

ALTENBERND, J., Concurs specially.

 

ALTENBERND, Judge, Specially concurring.

I concur in the court’s opinion and write only to make three observations. First, although the case law often discusses abuse of discretion as an appropriate standard of review for orders revoking probation, that standard is appropriate only after the State has presented a prima facie case allowing the trial court to make a decision to revoke probation. The actual standard of review in this setting would seem to require this court to determine whether there was competent, substantial evidence presented at the evidentiary hearing on the violation—including the hearsay evidence that is admissible in such a context—to authorize a revocation. See Gaddy v. State, 23 So. 3d 1258, 1259 (Fla. 2d DCA 2009) (holding that the State, which presented only hearsay evidence, failed to prove by competent, substantial evidence that the defendant violated a condition of his probation). Unfortunately, the State failed to present a prima facie case.

Second, it is entirely possible that the State failed to present a prima facie case because the trial court sustained an objection to the hearsay testimony of the deputy concerning the father’s statements about the events in the house. Although that evidentiary ruling would have been correct in most hearings, because hearsay can be admissible in a violation hearing, I am inclined to believe that the trial court should have received this testimony and then determined at the end of the hearing whether it could be used in conjunction with direct evidence to support an order of revocation. In fairness to the trial court, the assistant state attorney at the violation hearing did not make this argument.

 

Finally, although double jeopardy will not bar a second proceeding, unless the terms of probation were somehow stayed during this appeal, the thirty-six-month terms of probation expired in January 2011. This appeal was filed in November 2009. Despite a heavy caseload, this court can still resolve some appeals within a year. But the limited budgets in both the public defender’s office and the office of the attorney general are now requiring those offices to seek extensions in many cases to handle their extensive workload. As a result of the extensions granted to both sides, the State did not file its answer brief until February 9, 2011.

 

 

Courtesy of David Edelstein

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

 

STATE OF FLORIDA,

Appellant,

v.                   Case No. 5D09-4197

RAMON LUIS OLIVERAS,

Appellee.

 

Opinion filed July 22, 2011

Appeal from the Circuit Court for Orange County,

F. Rand Wallis, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellee.

SAWAYA, J.

The State appeals the order suppressing evidence seized from the home of Ramon Oliveras upon execution of a search warrant. We reverse.

The victim owned two computers, which she brought with her in her luggage on a trip from Houston to Orlando. One of the computers had tracing software from Absolute Software Corporation (Absolute) that allowed Absolute to trace the location of the

computer via the internet. The victim discovered that her computers had been stolen from her luggage at some point during their transport from Houston to an Orlando hotel. She notified Absolute of the theft and requested that it provide information to the police regarding the location of the computer and the identifying information of the person using it. Pursuant to that request, Absolute began monitoring the location of the computer and provided information to the police that the computer was being used by Oliveras at a location that was later discovered to be his residence. Once the police received that information, they determined that Oliveras was working for a baggage delivery service at the Orlando airport at the time pertinent to the theft of the victim’s computers. A warrant was obtained and executed, leading to the recovery of the victim’s computers from Oliveras’ residence. Oliveras was arrested and charged with third-degree grand theft.

Oliveras moved to suppress this evidence, arguing that the police had not obtained a court order or subpoena to retrieve information from the computer tracing company, pursuant to the provisions of the Florida Security of Communications Act, chapter 934, Florida Statutes (2009). Specifically, he argued that failure to comply with the requirements of section 934.23, Florida Statutes (2009), rendered the information used in the affidavit “defective” and the evidence seized pursuant to the warrant inadmissible. The trial court suppressed the evidence, but it did so for a different reason. The trial court ruled that probable cause had not been established for issuance of the warrant because the affidavit did not contain sufficient facts to show how the software worked and how Absolute had been able to trace the stolen computers to

Oliveras’ home. We will address the trial court’s reasoning and the argument advanced by Oliveras, which is the argument he makes in this appeal.

The basis of the trial court’s ruling is lack of probable cause established by the affidavit. The affidavit recites the pertinent facts:

Victim Billie White stated that on 02/14/2009 at 0735 hours, she flew on Continental Flight 586 from Houston, Texas to Orlando International Airport. She stated that, prior to checking her luggage in at Houston airport, she saw her two laptops, in their cases, inside her luggage. On 02/14/2009 at 1600 hours, White arrived at the Disney Pop Century resort, where her luggage had been delivered from Orlando International Airport. White opened her luggage and discovered that her Dell Inspiron 1525 laptop, S/N 6QVHYG1, and her HP Pavilion DV7 laptop had been removed from their cases and four compact disc boxes were also missing. White contacted the Houston Police Department and filed a report. White also contacted Absolute Software Corporation, which has tracking software on her Dell laptop. The total theft is estimated at $3100. White was later informed that the Dell Inspiron laptop was being used in Florida.

On 02/21/2009, White came to the Orlando International Airport Police Office and provided a sworn statement. The Dell Inspiron was entered into Teletype. White stated that she would call back with the model and serial number for the HP Pavilion laptop. Victim White stated that she did not give anyone permission to remove her property and she desires prosecution.

On 02/20/2009, I Detective Chris Hall was assigned to investigate this case.

I received information from Jen Farrell, Theft Recovery Officer for Absolute Software Corporation. Farrell advised that the stolen Dell laptop has ComputracePlus software installed on it. The software instructs the laptop to contact the Absolute Monitoring Center, on a periodic basis, when connected to a phone line or any type of Internet connection. The Monitoring Center captures the caller ID of the phone line to which the laptop is connected and/or the originating Internet Protocol (IP) address of the laptop. ComputracePlus software was first activated on the Dell laptop on Saturday, February 07, 2009. Prior to the theft, this laptop has contacted the Monitoring Center on at least six occasions. The Monitoring Center recorded the correct data on all of the calls. After the theft of the laptop, Farrell stated that the company began monitoring the laptop and

learned that Ramon Luis Oliveras at 5773 Five Flags Blvd. Apartment 2268, Orlando, Florida, was using the computer. Ferrell [sic] also provided the IP address 74.244.140.244 to which the stolen laptop is connected. After obtaining this information, it was learned that Ramon Luis Oliveras is employed by ASIG, as a bag runner. This company is responsible for transferring luggage from airplanes at Orlando International Airport (OIA), which are then delivered to Disney hotels. Ramon Oliveras was working on the date and time when Victim Billie White arrived at OIA. Jen Farrell provided documentation, which showed Ramon Oliveras, surfing the Internet and typing his address into the stolen computer.

A State of Florida Driver License check reveals that Ramon Luis Oliveras and Dafne Rodriguez both are tenants at 5773 Five Flags Blvd., apartment 2268.

Since the beginning of 2009, the OPD Airport Division has received multiple police reports of laptop computers being stolen from passengers, traveling between OIA and Disney resorts.

Based upon the totality of the evidence, your affiant has probable cause to believe, and does believe, that certain stolen property, including: a Dell Inspiron laptop computer, S/N 6QVHYG1, and HP Pavilion DV7 laptop computer, six compact discs, and other stolen property, is being kept inside the residence, located at 5773 Five Flags Blvd, apartment 2268, Orlando, Florida.

The law is well-settled that before a search warrant may be issued, the issuing judge must examine the affidavit to see if sufficient facts are alleged to establish probable cause. Burnett v. State, 848 So. 2d 1170, 1174 (Fla. 2d DCA 2003). The issuing judge fulfills this responsibility by making “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); see also Willacy v. State, 967 So. 2d 131 (Fla. 2007); State v. Carreno, 35 So. 3d 125 (Fla. 3d DCA 2010); State v. Irizarry, 948 So. 2d 39 (Fla. 5th DCA 2006); State v. Siegel, 679 So. 2d 1201 (Fla. 5th DCA 1996); State v. Price, 564 So. 2d 1239 (Fla. 5th DCA 1990). Hence, probable cause requires

the probability of criminal activity; it does not require absolute certainty or proof beyond a reasonable doubt. See Doorbal v. State, 837 So. 2d 940 (Fla. 2003); Irizarry. In other words, the standard for probable cause “requir[es] ‘more than mere suspicion but less evidence than is necessary to convict.’” United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000) (quoting United States v. Burns, 624 F.2d 95, 99 (10th Cir. 1980)).

When reviewing a prior determination of probable cause and the issuance of a search warrant, the reviewing circuit judge must accord deference to the issuing judge’s determination, presume it to be correct, and not disturb that determination unless there is a clear showing that the issuing judge abused his or her discretion in relying on the information in the affidavit. Willacy, 967 So. 2d at 147; Carreno, 35 So. 3d at 128; Price, 564 So. 2d at 1241. “A trial court’s duty upon reviewing the magistrate’s decision to issue the search warrant is not to conduct a de novo determination of probable cause but to determine whether substantial evidence supported the magistrate’s finding that, based on the totality of the circumstances, probable cause existed to issue the warrant.” Willacy, 967 So. 2d at 147.

We believe the affidavit sufficiently established probable cause for issuance of the search warrant. At the request of the victim, Absolute, a privately-hired company, voluntarily gave information to Officer Hall regarding the location of the stolen computer with the tracing software.1 Upon conducting independent research into the identity of

1This is not a case where law enforcement installed a tracking device in order to pursue a suspect. Rather, the computer’s owner contracted with the private corporation, Absolute Software Corporation, to have the monitoring software installed on the computer at the time of purchase, and it was the owner who contacted the monitoring company and initiated the search for her property once it was stolen. Law enforcement was not involved in this process whatsoever. “Importantly, the protection against unreasonable searches and seizures applies only to cases involving governmental

the suspect and his employment, Officer Hall discovered the suspect was working for a baggage delivery service at the Orlando airport at the time the computers were stolen and, thus, had access to them. The verification of the information provided by Absolute was sufficient to establish the reliability of the information. Moreover, Officer Hall testified to having had prior experience with this tracing system, and Absolute informed him that the software on the victim’s computer had sent identifiably correct information on six prior dates. As for Officer Hall himself, the affidavit sets forth his credentials, including that he has a bachelor’s degree in criminology and was assigned to the Airport Investigative Unit, where he had investigated numerous instances of stolen property. Clearly, the information contained in the affidavit provided a fair probability to warrant a cautious person, the issuing judge, to believe that the stolen computers were at the location specified in the warrant. As the courts have repeatedly held, proof beyond a reasonable doubt is not the standard for probable cause. Hence, whether Officer Hall knew the particular scientific or technical principles of how the computer software worked and how Absolute was able to use it to track the stolen computers in the instant case was not necessary to obtain a search warrant based on probable cause. Had the reviewing circuit judge given deference to the issuing judge’s determination and accorded the requisite presumption of correctness, it is difficult to see how the decision to issue the warrant could be viewed as improper.

We note, parenthetically, that Oliveras does not argue in support of the reasoning applied by the reviewing circuit judge. Rather, Oliveras continues to assert on appeal

action; it does not apply when the search or seizure was conducted by a private individual.” Armstrong v. State, 46 So. 3d 589, 593-94 (Fla. 1st DCA 2010) (emphasis in original) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)); Pomerantz v. State, 372 So. 2d 104, 108 (Fla. 3d DCA 1979), review denied, 44 So. 3d 581 (Fla. 2010).

that suppression was proper based on Officer Hall’s failure to obtain a warrant or court order under section 934.23 before obtaining the information from Absolute. We do not believe that section 934.23 is applicable. That statute provides in pertinent part:

An investigative or law enforcement officer may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for 180 days or less only pursuant to a warrant issued by the judge of a court of competent jurisdiction.

§ 934.23(1), Fla. Stat. (2009).

Here, law enforcement never required Absolute to do anything. To the contrary, the victim consented and, in fact, requested Absolute to provide information to the police. The victim had paid for the emanation of this information from her computer and, in fulfillment of their contract, Absolute complied. While section 934.22, Florida Statutes (2009), generally prohibits a provider of electronic communications from voluntarily divulging the contents of a communication, there is an exception in section 934.22(2) that “[a] provider . . . may divulge the contents of a communication . . . [t]o an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.” § 934.22(2)(a), Fla. Stat. (2009). Here, the victim is the intended recipient of the tracking and identification information because she paid for that information to be captured from her own computer, pursuant to her contract with Absolute. The victim was entitled to the information and to request Absolute to provide it to Officer Hall. Moreover, the information gleaned by Absolute pertains only to the thief, who lacked any reasonable expectation of privacy with respect to any communication he transmitted to, through, or from the stolen computer.

We conclude that the provisions of section 934.23, Florida Statutes, are not applicable under the facts of this case and that the trial court’s reason for suppressing the evidence is erroneous. Accordingly, we reverse the order granting the motion to suppress.

REVERSED.

ORFINGER, C.J. and JACOBUS, J., concur.

 

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

 

TAKERRY ONEAL DAVIS,

Appellant,

v.                  Case No. 5D10-2096

STATE OF FLORIDA,

Appellee.

 

Opinion filed July 22, 2011

Appeal from the Circuit Court for Orange County,

Timothy Shea, Judge.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Appellee.

EVANDER, J.

Takerry Davis timely appeals his judgment and sentences for possession of drug paraphernalia,1 possession of twenty grams or less of cannabis,2 and possession of a concealed weapon by a felon.3

1 § 893.147(1), Fla. Stat. (2009).

2 § 893.13(6)(b), Fla. Stat. (2009).

3 790.23, Fla. Stat. (2009).

These items of contraband were discovered by a law enforcement officer while performing a “protective patdown” of Davis and were the subject of Davis’ dispositive pre-trial motion to suppress evidence.4

The State’s evidence established that on November 24, 2009, at approximately 2:46 p.m., Officer McConnell observed several individuals in the courtyard of a “complex” located in a “high-crime area.” McConnell stopped his patrol car, got out, and began to walk toward the individuals. As he neared the group, Davis began to walk away. McConnell caught up to Davis and asked if he could briefly talk to him. Davis stopped and started talking to the officer.

During the conversation, Officer McConnell observed a pocketknife clipped into one of Davis’ pants pockets. McConnell “secured” the pocketknife and “considered it necessary to patdown for weapons just to . . . for my own safety . . . .” Officer McConnell felt along the outside of a nylon bag being carried by Davis. The officer felt what he immediately recognized as a set of brass knuckles in the bag. The cannabis and drug paraphernalia were subsequently found on Davis’ person.

When questioned by defense counsel, Officer McConnell acknowledged that the patdown was done without Davis’ consent and that there was nothing unlawful about the pocketknife.

The Florida Supreme Court has explained that there are three levels of police-citizen encounters. The first level is typically referred to as a consensual encounter and involves only minimal police contact. During a consensual encounter, a citizen may

4 After the denial of his motion, Davis pled nobo contendere to the charges, specifically reserving his right to appeal the denial of the motion.

either voluntarily comply with a police officer’s requests or choose to ignore them. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). The second level of police-citizen encounter involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1 (1968). A police officer may temporarily detain a citizen if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. Id.; see also § 901.151, Fla. Stat. (2009). The officer’s suspicion must be a well-founded, articulable one. Popple, 626 So. 2d at 186. Mere suspicion will not suffice. Id. The third level of police-citizen encounter is an arrest — which must be supported by probable cause that a crime has been or is being committed. Id.

Here, the contact between Officer McConnell and Davis began as a consensual encounter, but was transformed into an investigatory stop when the officer secured Davis’ pocket knife and commenced his “protective patdown.” Accordingly, to justify this investigatory stop, the State was required to show that Officer McConnell had a reasonable suspicion that Davis had committed, was committing, or was about to commit a crime. Popple; see also Kramer v. State, 15 So. 3d 790 (Fla. 5th DCA 2009).

The State contends that because McConnell had already found Davis to be in possession of one weapon, the pocketknife, it was reasonable for him to suspect Davis might have additional weapons. We reject the State’s argument. Possession of a pocketknife, without more, does not create a reasonable suspicion that a citizen is involved in criminal activity. In the instant case, there was no evidence that Davis had made any furtive movements, or engaged in any conduct that was threatening in nature. The pocketknife was apparently openly visible and its possession was entirely lawful. To accept the State’s argument would mean that an officer could “stop and frisk” any

individual observed in possession of a pocketknife even where there was no evidence suggesting that criminal activity was afoot.

On remand, the trial court is directed to vacate the judgment and sentence and grant the motion to suppress.

REVERSED and REMANDED.

ORFINGER, CJ., and PALMER, J., concur.

 

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

 

PACU RIVERA-RIVERA,

Appellant,

v.                Case No. 5D10-2516

STATE OF FLORIDA,

Appellee.

 

Opinion filed July 22, 2011

Appeal from the Circuit Court for Osceola County,

Jon B. Morgan, Judge.

James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

We affirm without discussion, Pacu Rivera-Rivera’s convictions for robbery with a firearm, false imprisonment with a firearm, aggravated assault with a firearm, attempted robbery, aggravated battery with a firearm, and false imprisonment with a weapon. However, double jeopardy principles preclude Rivera’s separate convictions for battery and simple assault. As to the battery conviction, the State correctly concedes error, as

the battery was subsumed by the greater offense of aggravated battery. See Skriver v. State, 861 So. 2d 1290 (Fla. 5th DCA 2004). For the reason explained in Latimer v. State, 44 So. 3d 1239 (Fla. 5th DCA 2010), we also vacate the simple assault conviction.

Accordingly, we reverse both the battery and assault convictions and remand with instructions to vacate those convictions.

AFFIRMED in part; REVERSED in part; and REMANDED.

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

 

Courtesy of David Edelstein

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

 

STATE OF FLORIDA,

Appellant,

v.                    CASE NO. 5D10-3292

GREGORY G. GEISS,

Appellee.

 

Opinion filed July 22, 2011.

Appeal from the Circuit Court for Brevard County,

George Maxwell, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.

Angela Meriah Park and Ernest L. Chang, of Law Office of Ernest L. Chang, P.A., Melbourne, for Appellee.

ON MOTION FOR REHEARING AND CERTIFICATION

PER CURIAM.

We deny the State’s motion for rehearing, but grant its motion to certify the following question pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), as one of great public importance:

DOES SECTION 933.02(2)(a), FLORIDA STATUTES, PRECLUDE LAW ENFORCEMENT OFFICERS FROM SECURING A WARRANT FOR A BLOOD DRAW IN MISDEMEANOR CASES INVOLVING AN ALLEGATION

THAT A SUSPECT HAS DRIVEN WITH AN UNLAWFUL BLOOD ALCOHOL LEVEL?

REHEARING DENIED; QUESTION CERTIFIED.

LAWSON and COHEN, JJ., concur.

TORPY, J., concurs in part and dissents in part, with opinion.

5D10-3292

TORPY, J., concurring and dissenting.

I concur that we should certify a question in this case. I do not agree with the narrow question proffered by the State and adopted by the majority. In my view, this case is controlled by Sambrine v. State, 386 So. 2d 546 (Fla. 1980). There, our high court suppressed blood taken by force, concluding that the implied consent law “leads to the inescapable conclusion that a person is given the right to refuse testing.” Id. at 548. In Sambrine, the search was warrantless. The threshold question here should be whether the use of a warrant to force a blood draw makes a difference. As I stated in my dissent, it doesn’t. Police do not need a warrant to take blood by force if there is probable cause to believe it is evidence of a crime. Sambrine did not turn on the absence of a warrant; it was based entirely on the Court’s conclusion that the implied consent statute established a statutory privilege to refuse a blood draw, even when police are acting within the limits of the Fourth Amendment. The presence or absence of a warrant has no bearing on the scope of this statutory privilege. The question I would certify is as follows:

Is the right to refuse a forced blood draw under the implied consent law, as recognized in Sambrine v. State, viable when the blood draw is authorized by warrant? If not, may a warrant issue to seize blood when the police only have probable cause that a misdemeanor has been committed?

I am appreciative of the State’s motive in presenting a narrow question, any answer to which leaves it in no worse position. Nevertheless, only an answer to the broader question will put an end to judicial labor on this topic.

 

Courtesy of David Edelstein