Florida Criminal Law Opinions

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

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

DANNY O. DAVIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-2382

Opinion filed August 31, 2011.

An appeal from the Circuit Court for Duval County. Mark H. Mahon, Judge.

Danny O. Davis, pro se; Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, Trisha Meggs Pate, Bureau Chief, for Appellee.

PER CURIAM.

Danny O. Davis, Appellant, seeks review of his convictions and sentences for two counts of sexual battery and one count each of burglary of a dwelling with an assault or battery and home-invasion robbery. His counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Following consideration of

Appellant’s pro se brief and our independent review of the record, we directed Appellant’s counsel to provide supplemental briefing on whether Appellant’s dual convictions and sentences for burglary with an assault or battery and home-invasion robbery constitute double jeopardy. Appellant’s counsel now argues for reversal on this basis, and the State properly concedes error on this point. Accordingly, we reverse in part, affirm in part, and remand for vacation of the conviction and sentence for home-invasion robbery.

Both of the offenses at issue were committed in the same criminal episode and stemmed from a single uninvited entry into the victim’s home. Based on the constitutional prohibition against double jeopardy and section 775.021(4), Florida Statutes (2009), a defendant may not be convicted of and sentenced for two offenses that occur in the same criminal episode unless each offense contains an element the other does not. Gaber v. State, 684 So. 2d 189, 191 (Fla. 1996). This analysis focuses on the elements of the crime “without regard to the accusatory pleading or the proof adduced at trial.” § 775.021(4); Gaber, 684 So. 2d at 190. Burglary of a dwelling with an assault or battery is subsumed by home-invasion robbery, such that convictions of both offenses arising from a single criminal episode violate the principles of double jeopardy. Compare § 810.02(1)(b), (2)(a), Fla. Stat. (2009), with § 812.135(1), Fla. Stat. (2009); see Bowers v. State, 679 So. 2d 340, 341 (Fla. 1st DCA 1996); Elmy v. State, 667 So. 2d 392, 392 (Fla. 1st

DCA 1995); Perez v. State, 951 So. 2d 859, 859-60 (Fla. 2d DCA 2006); cf. Coleman v. State, 956 So. 2d 1254, 1257 (Fla. 2d DCA 2007) (holding that “multiple burglary convictions based upon a single forced entry violate double jeopardy principles”); McAllister v. State, 718 So. 2d 917, 918 (Fla. 5th DCA 1998) (recognizing home-invasion robbery as a form of burglary).

Because burglary with an assault or battery is the greater offense, this conviction should stand, and the conviction and sentence for home-invasion robbery should be vacated. Bowers, 679 So. 2d at 341. Accordingly, we reverse Appellant’s conviction for home-invasion robbery and remand with directions that the trial court vacate the conviction and sentence for that charge. Appellant’s remaining convictions and sentences are affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED with directions. DAVIS, LEWIS, and WETHERELL, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

HOWARD CARL MCLEES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-6510

Opinion filed August 31, 2011.

An appeal from the Circuit Court for Columbia County. Leandra G. Johnson, Judge.

Howard Carl McLees, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant seeks review of the trial court’s order summarily denying his motions and amended motions for postconviction relief filed pursuant to Florida

Rule of Criminal Procedure 3.850. He makes several arguments on appeal, only one of which has merit. He argues that the trial court erred in summarily denying his claim that defense counsel was ineffective for affirmatively misadvising him that he was not eligible for conditional release supervision without attaching portions of the record that conclusively refuted the claim. We agree and reverse and remand for record attachments that conclusively refute the claim or for an evidentiary hearing. See Colombo v. State, 972 So. 2d 1101 (Fla. 1st DCA 2008).

AFFIRMED in part; REVERSED and REMANDED in part.

BENTON, C.J., ROBERTS, and RAY, JJ., CONCUR.

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

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

PRESTON SMITH,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-459

Opinion filed August 31, 2011.

An appeal from the Circuit Court for Franklin County. Angela C. Dempsey, Judge.

Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Ralph F. Guerra and Edward C. Hill Jr., Assistant Attorneys General, Tallahassee, for Appellee.

CLARK, J.

The appellant challenges the revocation of his probation upon the trial court’s finding that the appellant’s brief delay in reporting to the jail to begin serving a term of incarceration violated a condition of his probation. Because the slight delay in appearing at the jail on the day he was to begin serving that term of

incarceration was not shown to be a willful and substantial violation, the appellant’s probation should not have been revoked. See e.g. Garcia v. State, 670 So. 2d 1104 (Fla. 2d DCA 1996). The revocation of the appellant’s probation is therefore reversed, and the sentence imposed upon that revocation is vacated. The case is remanded, with the appellant to be released from that prison sentence.

HAWKES, J., CONCURS; and SWANSON, J., CONCURS WITH OPINION.

SWANSON, J., concurring.

I concur in the majority’s decision to reverse the revocation of appellant’s probation and remand with instructions for his release from prison. I write only to express my opinion that the facts of this case serve to illustrate a clear abuse of a trial court’s discretion.

On September 14, 2010, pursuant to a negotiated agreement with the state, appellant entered a plea of no contest to a charge of the sale of a substance in lieu of cocaine, contrary to section 817.563, Florida Statutes (2009). The trial court imposed a term of probation of thirty months, with the special condition that appellant serve sixty days in jail. On October 6, 2010, the state filed an amended affidavit of violation of probation, alleging appellant violated Condition (5) of his probation by committing a new offense, and Condition (9) by failing to comply with his probation officer’s instruction to report to the Franklin County Jail by noon on September 21, 2010, to begin serving his sentence. At the evidentiary hearing, the state proceeded only with the technical failure to timely report to jail. The evidence presented showed appellant was approximately twenty minutes late in turning himself in to the county jail. The trial court found appellant violated his probation, revoked it, and sentenced appellant to eighteen months’ imprisonment in the Department of Corrections.

A trial court’s decision to revoke a defendant’s probation is reviewed for an

abuse of discretion. See State v. Carter, 835 So. 2d 259, 262 (Fla. 2002). “That is, the appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner” in determining whether the defendant’s violation of probation was “both willful and substantial.” Id. As the majority correctly holds, under Florida law appellant’s “slight delay” in appearing at the jail to begin serving his sentence was not a willful and substantial violation of his probation. Indeed, analogous caselaw supports the view that the fact of appellant’s reporting to jail twenty minutes after the appointed time was little more than a de minimis violation. Cf. Navedo v. State, 847 So. 2d 585, 586 (Fla. 3d DCA 2003) (holding the defendant’s voluntary appearance in court to begin serving his sentence less than six hours late was a “de minimis” deviation of several hours and, therefore, the trial court abused its discretion in failing to mitigate the defendant’s sentence as promised, provided he timely surrender following a brief furlough); Eulo v. State, 786 So. 2d 43, 44 (Fla. 4th DCA 2001) (holding the defendant’s fifteen-minute delay in surrendering to the trial court following a furlough to be “de minimis”). Accordingly, in my opinion, under the circumstances of this case, the trial court’s decision to revoke appellant’s probation and sentence him to eighteen months’ imprisonment was both “arbitrary” and “unreasonable.” In Carter, the supreme court recognized that “[t]here may be circumstances where revocation is patently unfair.” 835 So. 2d at 262. In my view, this case represents

one of those circumstances.

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

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

M. H., A Child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-0572

Opinion filed August 31, 2011.

An appeal from the Circuit Court for Duval County. Henry E. Davis, Judge.

Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.

WOLF, J.

M.H. asserts that the trial court erred in deviating from the Department of Juvenile Justice’s (DJJ) recommendation of probation. We agree and reverse.

Appellant pled guilty to possession with intent to sell, manufacture, or deliver a controlled substance and possession of less than 20 grams of marijuana.

The charges were based on appellant’s attempt to sell marijuana to an undercover police officer on November 20, 2010.

Appellant had two previous arrests for possession of marijuana, one in February 2010 and one in June 2010. He was placed on probation for both offenses on July 28, 2010, and reoffended on November 3, 2010. Appellant was still on probation for one of the prior charges at the time of his arrest on the instant charges.

Prior to sentencing, the DJJ issued a predisposition report (PDR). The PDR listed both previous arrests, but mentioned only one in the recommendation section. The PDR recommended probation and substance abuse education but did not discuss the timing of the prior arrests or provide any reason why probation would be any more effective in the present case than it had been in the previous cases. The trial court rejected the recommendation for probation and placed appellant in a moderate-risk facility.

Section 985.433(7)(b), Florida Statutes (2010), governs the extent to which a trial court may deviate from the DJJ’s recommendation in a PDR and provides in pertinent part:

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department. Any party may appeal the court’s

findings resulting in a modified level of restrictiveness under this paragraph.

In E.A.R. v. State, 4 So. 3d 614, 638 (Fla. 2009), the supreme court elucidated on the steps a trial court must take prior to deviating from a DJJ recommendation stating:

The only rational or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another-and thereby rationalize a departure disposition-is for the court to:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and

(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.

In addition to the foregoing, the trial court’s stated explanation must provide a legally acceptable reason for “disregarding” the DJJ’s assessment and PDR by “identifying significant information that the DJJ has overlooked, failed sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.” Id. at 634.

E.A.R. sends several clear messages:

1. Trial courts must seriously consider what they are doing before deviating from DJJ recommendations;

2. There are certain specific things that must be considered prior to deviation; and

3. The face of the deviation order must demonstrate that the trial court fully considered the required prongs of E.A.R., and the appellate court will not be able to fill in the blanks of a deficient order.

Here, the trial court deviated from the recommendation for probation and placed the juvenile in a moderate risk facility. In deviating, the trial court stated:

the recommendation did not consider the child’s history of delinquent behavior. The child would benefit from a structured program for his drug use and his – - the child’s behavior demonstrates no respect for authority or the law. Continued probation would not be in his best interest in that the child is essentially a drug dealer.

One might argue that the trial court’s observations and conclusions were reasonable in light of appellant’s committing a new drug offense within four months of being put on probation for two prior drug offenses. Further, the trial court was correct that the DJJ had failed to expressly consider the child’s prior history of delinquent behavior. Specifically, while the PDR listed two prior drug offenses, only one prior offense was mentioned in the recommendation section, and there was no discussion concerning the prior arrests or any indication of how the prior arrests and probations would indicate that appellant was amenable to probation in the immediate case. “Consider” is defined as “to look at carefully, examine.” Webster’s New World Dictionary 297 (3d College ed. 1988). The mere

mention of the prior disposition without anything more does not in any way indicate that the DJJ carefully looked at, or examined, the prior convictions. However, the written reason for deviation merely stated the PDR “failed to consider the child’s delinquent history” without calling specific attention to where the report was deficient. Based on the dictates of E.A.R., this lack of specificity by the trial court cannot support affirmance. Had the trial court’s written reasons for deviating articulated this deficiency rather than merely making a conclusory statement that the recommendation failed to consider the child’s history, it may have withstood appellate review.

Regardless of the foregoing, reversal would likewise be required pursuant to the second prong of E.A.R. As noted in E.A.R., in deviating, a trial court must articulate “an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) . . . the divergent treatment programs and services available to the juvenile at these levels.” E.A.R., 4 So. 3d at 638 (emphasis added). Here, the trial court implied that the moderate-risk facility would offer the child a “structured” drug program. However, nothing in section 985.03(44)(c), Florida Statutes, states that all moderate-risk facilities have drug treatment programs as suggested by the trial court. While a trial court, working routinely with juveniles, may have insight into the types of programs provided at certain juvenile detention facilities, E.A.R. requires a trial court place that

knowledge on record if the judge intends to rely on these types of findings to support deviations. The trial court’s stated reason generally suggested appellant would benefit from a structured drug program but did not articulate an understanding that the moderate-risk facility would provide this program, as required by E.A.R.

Last, even if the trial court had provided sufficient reasons and properly considered the type of drug programs available in moderate-risk facilities, the trial court reversibly erred by failing to state the deviation and placement in a moderate-risk facility was the least-restrictive setting necessary to protect the public from recidivism, while balancing the need for rehabilitation. E.A.R., 4 So. 3d at 638. In the underlying case, the PDR and the DJJ officer’s testimony established appellant would be placed in a drug treatment program while on probation and the trial court did not state why this type of treatment was inadequate under the circumstances. The underlying offenses for sale and possession of marijuana are not violent crimes which dictate a heightened need to protect the public, but even if they were, the trial court never stated appellant posed any threat to society.

In conclusion, it is important for trial courts to understand that deviating from a DJJ’s recommendation is a difficult matter pursuant to the dictates of E.A.R. In order to deviate lawfully, a trial court must do more than place generalized reasons on the record; it must engage in a well-reasoned and complete

analysis of the PDR and the type of facility to which the trial court intends to send the child. This is no easy task and will take time and consideration.

However, when reversing the type of error that occurred, this court has allowed the trial court an opportunity to amend the disposition order to add the necessary information. See C.M.H. v. State, 25 So. 3d 678 (Fla. 1st DCA 2010). Specifically, in C.M.H., a case similar to the underlying one, this court reversed the trial court’s deviation from DJJ’s recommendation of probation finding C.M.H. posed a threat to the public and required incarceration. In reversing, this court stated in relevant part:

The trial court did not engage in the appropriate analysis of determining why this disposition was better suited to serving the rehabilitative needs of C.M.H., in the least restrictive setting, and protecting the public from further acts of delinquency. See also Dep’t of Juvenile Justice v. K.B., 784 So.2d 556, 557 (Fla. 1st DCA 2001). Accordingly, we reverse and remand to provide the trial court an opportunity to enter an order in compliance with E.A.R., or, if the trial court cannot, impose the probation recommended by the DJJ. See M.K. v. State, 4 So.3d 1271 (Fla. 1st DCA 2009) (reversing and remanding to provide trial court an opportunity to enter an order in compliance with E.A.R. where trial court failed to conduct proper analysis in departing from the DJJ’s recommendation); M.J.S. v. State, 6 So.3d 1268 (Fla. 1st DCA 2009) (same).

Id. at 680.

Based on C.M.H., we reverse and remand so that the trial court may place more specific findings in the disposition order, or in the alternative, if those findings cannot be made, enter a new order placing appellant on probation.

LEWIS and RAY, JJ., CONCUR.

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

MICAH JONES,

Appellant,

v.                    Case No. 2D10-398

LAWRENCE A. JACKSON,

Appellee.

Opinion filed August 31, 2011.

Appeal from the Circuit Court for Polk County; J. Dale Durrance, Judge.

Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.

No Appearance for Appellee.

CASANUEVA, Judge.

Micah Jones appeals an order granting Lawrence Jackson an injunction for protection against repeat violence. Mr. Jones argues that his actions did not constitute repeat violence under section 784.046, Florida Statutes (2009), because there was no competent, substantial evidence that his actions amounted to stalking. We agree and reverse.

Section 784.046 provides injunctive relief from repeat violence for “two incidents of violence or stalking.” Willful, malicious, and repeated harassment constitutes stalking. § 784.048(2). Mr. Jackson testified that he received threatening phone calls and text messages from Mr. Jones. However, these particular threats would not have caused a reasonable person substantial emotional distress. See

§ 784.048(1)(a) (defining “harassment” as “a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose”); Slack v. Kling, 959 So. 2d 425, 426 (Fla. 2d DCA 2007) (utilizing the reasonable person standard to determine whether the petitioner suffered substantial emotional distress). In fact, the only evidence about Mr. Jackson’s emotional response was that he “was calm” after receiving one of the threats. His testimony supports our conclusion that the threats would not have caused a reasonable person in Mr. Jackson’s shoes to suffer substantial emotional distress. Therefore, Mr. Jones’s direct threats did not amount to harassment.

Mr. Jackson also testified that Mr. Jones made statements to third parties suggesting he would do violence to Mr. Jackson. Indirect contact can constitute harassment. See, e.g., Seitz v. State, 867 So. 2d 421, 422-23 (Fla. 3d DCA 2004) (publicizing of victim’s pharmaceutical records caused emotional distress and constituted harassment). But, like the direct threats in this case, these statements would not have caused a reasonable person in Mr. Jones’s place to suffer substantial emotional distress.

In summary, Mr. Jackson’s testimony failed to establish harassment because a reasonable person would not have suffered emotional distress from Mr.

Jones’s threats or statements. Without harassment there was no proof of stalking, and without stalking there was no proof of “repeat violence.” Therefore, the trial court erred in granting the injunction for protection against repeat violence.

Reversed.

WHATLEY, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge, Concurring.

Without question it would be a very good idea for these two men to leave one another alone. It helps to understand that, at the time of this hearing, Mr. Jones was living with Mr. Jackson’s “soon-to-be ex-wife.” Their disagreements seem to have arisen primarily when Mr. Jackson was trying to talk with his wife on the telephone about their child.

The two men’s versions of events are diametrically opposed, and it appears that the woman in the middle does not want to take sides. The order on appeal is a form order in which the trial court grants the injunction without findings of fact. The trial judge made no findings of fact on the record, although it is obvious that he believed Mr. Jackson and did not believe Mr. Jones. Overall, the testimony suggests that Mr. Jackson is tired of Mr. Jones’ profanity and the idle verbal threats, but he does not actually fear that Mr. Jones is planning to act on the threats.

Our standard of review in this case is a little unusual because we are assessing whether there was competent, substantial evidence to support a finding of

fact on an issue involving both “reasonableness” and “substantial” distress. Especially in the context of jury trials, we are trained that issues of reasonableness are generally a matter for the jury to decide. However, after several readings of the record, I am convinced that the evidence is insufficient to support a finding that Mr. Jones created circumstances that would cause a reasonable person to suffer substantial emotional distress. I do not believe that we are reweighing the evidence.

I fully appreciate why trial courts use a standardized form when entering the appealable order in these cases. I can also appreciate why a trial judge would hesitate to make findings on the record when those findings might simply aggravate a party with anger management issues. Nevertheless, this case is an example of an injunction that would have been easier for the appellate court to review if there had been findings of fact.

It might occasionally be helpful if the circuit courts had the power to enter an order requiring adults to act like grownups. But a permanent injunction for protection against repeat violence cannot be used simply to compel civility and common decency.

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JEFFREY LEWIS LEE,

Appellant,

v.                      Case No. 2D10-1228

STATE OF FLORIDA,

Appellee.

Opinion filed August 31, 2011.

Appeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Jeffrey Lewis Lee appeals the revocation of his probation and the resulting sentence in two underlying cases. We affirm the revocation of Lee’s probation but remand for the trial court to enter a corrected revocation order. We also reverse Lee’s sentence and remand for the trial court to resentence Lee as a youthful offender.

Lee pleaded guilty to one count of possession of cocaine, one count of driving while license suspended or revoked, and one count of fleeing to elude in two separate circuit court cases. On April 16, 2009, the trial court withheld adjudication and sentenced Lee as a youthful offender to concurrent terms of twenty-four months’ probation on the possession and fleeing offenses and to six months’ probation on the driving offense.

Two weeks later, the Department of Corrections filed affidavits of violation of probation in both cases based on allegations that Lee had committed new offenses since being placed on probation. The court held a hearing and found that Lee had violated his probation by committing the new offenses of trafficking in cocaine, resisting an officer with violence, aggravated assault on a law enforcement officer, sale of cocaine, and delivery of cocaine. Based on these violations, the trial court revoked Lee’s probation and sentenced him to consecutive five-year prison terms on the possession and fleeing offenses and to time served on the driving offense. In doing so, the trial court specifically declined to continue Lee’s status as a youthful offender.

In this appeal, Lee contends that the trial court’s finding that he committed the new offense of trafficking in cocaine was not supported by competent, substantial evidence. We agree because the only evidence presented by the State to establish that Lee committed this offense was hearsay, which cannot, standing alone, support a finding of a violation of probation. See, e.g., Russell v. State, 982 So. 2d 642, 646 (Fla. 2008) (holding that while hearsay evidence is admissible at a revocation hearing, hearsay cannot form the sole basis for finding a violation of probation); Casas v. State, 27 So. 3d 203, 206 (Fla. 2d DCA 2010) (same). Lee also contends that the trial court

erred by finding that he had violated his probation by committing the new offense of resisting an officer with violence because that offense was not charged in the affidavit of violation of probation. Again, we are compelled to agree because the affidavit of violation of probation did not charge Lee with violating his probation by committing this offense, and ” ‘[a] trial court is not permitted to revoke probation on conduct not charged in the affidavit of violation.’ ” Cherington v. State, 24 So. 3d 658, 660 (Fla. 2d DCA 2009) (quoting Parminter v. State, 762 So. 2d 966, 967 (Fla. 2d DCA 2000)).

However, despite these errors, we affirm the revocation of Lee’s probation. When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, this court and others have affirmed the revocation of probation and remanded for entry of a corrected revocation order. See, e.g., Simmons v. State, 913 So. 2d 19, 24 (Fla. 2d DCA 2005); Burse v. State, 724 So. 2d 596, 598 (Fla. 2d DCA 1998); Olvey v. State, 707 So. 2d 1189, 1189-90 (Fla. 2d DCA 1998); Bourne v. State, 869 So. 2d 606, 607 (Fla. 1st DCA 2004). Only when this court cannot determine from the record whether the trial court would have revoked the defendant’s probation based solely on the proper grounds will this court reverse and remand for reconsideration by the trial court. See, e.g., Clemons v. State, 388 So. 2d 639, 640 (Fla. 2d DCA 1980).

Here, the trial court’s finding that Lee violated his probation by committing the new offenses of aggravated assault on a law enforcement officer, sale and/or delivery of cocaine, and possession of cocaine is fully supported by the evidence. Thus, there were proper grounds for revocation presented at the revocation hearing.

Moreover, it is abundantly clear from the trial court’s remarks at the hearing that it would have revoked Lee’s probation based solely on the proper grounds for revocation. Accordingly, we affirm the revocation of Lee’s probation, but we remand for the trial court to enter a corrected revocation order that deletes any reference to the alleged violations that were not properly established at the revocation hearing.

Turning to Lee’s sentence, however, we must reverse and remand for resentencing. Lee was originally sentenced to twenty-four months’ probation as a youthful offender. However, when the trial court sentenced Lee upon revocation of his probation, it specifically declined to maintain Lee’s youthful offender status. This decision constituted error.

“Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control.” Blacker v. State, 49 So. 3d 785, 788 (Fla. 4th DCA 2010); see also State v. Arnette, 604 So. 2d 482, 484 (Fla. 1992) (“Unless the legislature clearly states otherwise, youthful offenders maintain youthful offender status even when they violate a condition of community control.”); Gardner v. State, 656 So. 2d 933, 937 (Fla. 1st DCA 1995) (“[O]nce a defendant is sentenced under the provisions of [the youthful offender statute], a court may not reclassify the defendant and sentence him or her in a manner inconsistent with [that statute].”). While a defendant is not entitled to be sentenced as a youthful offender on any new offense he or she may have committed, see Boynton v. State, 896 So. 2d 898, 899 (Fla. 3d DCA 2005), the trial court cannot revoke a defendant’s youthful offender status on offenses for which that defendant has already been sentenced. However, while the court must maintain the defendant’s youthful

offender status upon revocation of probation, the court is not limited to imposing the usual youthful offender sentence of six years or less in prison if the revocation is based on a substantive violation of probation. Instead, in that instance the court may sentence a youthful offender to a period not “longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated.”

§ 958.14, Fla. Stat. (2010).

In this case, the trial court revoked Lee’s probation based on a substantive violation of his probation. Thus, the length of Lee’s sentence, i.e., the statutory maximum terms for the offenses to which he pleaded guilty, is legal. However, the trial court’s decision to revoke Lee’s youthful offender status, which was not subject to revocation once it was imposed, renders his sentence illegal. Arnette, 604 So. 2d at 484; Blacker, 49 So. 3d at 788. Accordingly, we reverse Lee’s sentence and remand for him to be resentenced as a youthful offender. We note that on remand the trial court may impose the same consecutive five-year sentences if it so chooses, but it must maintain Lee’s youthful offender status.1

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY and WALLACE, JJ., Concur.

1Since the trial court may elect to sentence Lee to the same term of imprisonment on remand, we recognize that Lee’s resentencing may appear to be only a paper victory. However, Lee argues that there are services and other advantages available to youthful offenders through the Department of Corrections and to which he would be entitled if he was properly sentenced. We express no opinion concerning the correctness of this argument or whether Lee is actually entitled to any such services or advantages once he is properly sentenced.

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Third District Court of Appeal

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

Opinion filed August 31, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D09-57

Lower Tribunal No. 05-19776B

Sameer Muhammad,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.

Carlos J. Martinez, Public Defender, and Shannon McKenna, Assistant Public Defender, for appellant.

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

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

SHEPHERD, J.

After the defendant, Sameer Muhammad, was found by a jury guilty of organized scheme to defraud $50,000 or more and four counts of grand theft, the State elected to have the defendant adjudicated and sentenced to the four counts of grand theft and nolle prossed his conviction of organized fraud to comply with double jeopardy principles. As stated in Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006), “double jeopardy principles preclude convictions for both grand theft and organized fraud based upon the same conduct.” When dual convictions are impermissible, the conviction for the lesser crime should be set aside. Id. In this case, grand theft is a lesser offense of organized fraud. See id. at 1207. Thus, the defendant’s four convictions of grand theft should have been set aside and the trial court should have adjudicated and sentenced the defendant on the organized fraud conviction. The State’s election to nolle pros the defendant’s organized fraud conviction after the jury returned a verdict is a nullity and shall have no effect upon remand. See Flores v. State, 958 So. 2d 1026, 1027 (Fla. 5th DCA 2007) (“The State has no power to nolle pros a charge after jeopardy has attached. Therefore, the State has no authority to nolle pros a charge after a jury is sworn.”).

We find no merit on any of the other issues raised in this appeal.

Affirmed in part, and reversed in part with directions to vacate the defendant’s convictions for the lesser included offenses of grand theft and to sentence the defendant on the organized fraud conviction.

Courtesy of David Edelstein

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Third District Court of Appeal

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

Opinion filed August 31, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D09-2178

Lower Tribunal No. 00-28860

The State of Florida,

Appellant,

vs.

Robert Marcel,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge.

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

Antonio G. Jimenez, for appellee.

Before SHEPHERD, CORTIÑAS, and LAGOA, JJ. SHEPHERD, J.

The appellee, Robert Marcel, pled nobo contendere to the offense of unlawfully and intentionally touching a person under sixteen years of age in a lewd or lascivious manner, in violation of section 800.04(6)(c), Florida Statutes (2001). Marcel was eighteen-years old at the time of the offense, and the victim fourteen-years old. The trial court withheld adjudication and sentenced Marcel to three-years probation. As a consequence of plea, Marcel automatically was designated a sexual offender, subject to lifetime registration and reporting requirements contained in section 943.0435, Florida Statutes (2001).

Seven years after the offense, the Florida Legislature added section 943.04354 to the Florida Statutes, providing an exception to the stigma of sex offender registration for consensual conduct by young people who satisfy certain specific conditions—so-called “Romeo and Juliet offenders.” See § 943.04354, Fla. Stat. (2007); Miller v. State, 17 So. 3d 778, 781 (Fla. 5th DCA 2009). One of the criteria for relief is that the defendant be “not more than [four] years older than the victim of th[e] violation who was [fourteen] years of age or older but not more than [seventeen] years of age at the time the person committed th[e] violation.” § 943.04354(1)(c), Fla. Stat. (2007). The trial court in this case found this condition was met and granted relief to Marcel. The State seeks reversal on the ground the trial court erred in its finding that this criteria was satisfied. For the reasons stated below, we agree with the State.

The disagreement in this case revolves around the application of the phrase “not more than” in section 943.04354(1)(c) of the Florida Statutes. At the time of the violation in this case, Marcel was four years, three months, and eight days older than the victim. The State argues Marcel fails to meet the criteria for removal from registration under the statute because he is “more than” four years older than the victim. Marcel argues, and the trial court agreed, months and days should not be counted when determining the difference in age, rather the “completed years of life” should be considered. Under this interpretation of what is called the “birthday rule,” a defendant would not be more than four years older than the victim until the person was five years older. On this analysis, Marcel would satisfy the condition we are called upon to interpret until he reached his nineteenth birthday.

Marcel has not brought to our attention any case to support the use of his proposed interpretive rule in this case. Our own research has revealed the rule is used only in computing age, when required by a statute, but not in calculating time, as the legislative enactment in this case requires. See State v. Moore, 606 S.E.2d 127 (N.C. Ct. App. 2004) (statutory rape statute encompassing victims “who [are] [thirteen, fourteen, or fifteen] years old” includes victim who was fifteen-years and two-days-old); see also State v. Yarger, 908 N.E.2d 462 (Ohio Ct. App. 2009) (holding that a defendant was an “adult” under statute defining “adult” as “an individual who is eighteen years of age or older” even though he was about

eight hours short of his birth time at the time of the offense); People v. Anderson, 439 N.E.2d 65 (Ill. App. Ct. 1982) (finding that a defendant who shot victim on his birthday, but was approximately seven hours short of his birth time at the time of the crime was nevertheless seventeen-years old for purposes of being charged as an adult). These cases are distinguishable on their face from the case before us.

The argument made by Marcel also contravenes the plain language of the statute. The Legislature expressly limited eligibility under the statute to persons “not more than 4 years older than the victim.” The word “more” is a common term and commonly understood to mean “greater” or “of a larger quantity or amount.” Webster’s 3d New Int’l Dictionary 1469 (1993). The phrase is uncomplicated, and no canons of construction are necessary to its interpretation. See Koile v. State, 934 So. 2d 1226, 1230-31 (Fla. 2006) (stating that where a statute is clear on its face, “courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent” (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64-65 (Fla. 2005))). If a defendant is one day past the four-year eligibility limit prescribed by section 943.04354 of the Florida Statutes, he is ineligible to petition for relief. Marcel and the victim in our case were four years, three months, and eight days apart in age on the date of the offense. This clearly is “greater” or “of a larger amount” than four years. Marcel

does not meet the temporal eligibility condition necessary to pretermit his registration obligations under section 943.0435 of the Florida Statutes.

States outside of Florida also have enacted laws similar to the Romeo and Juliet Law. Of particular note is State v. Faulk, 683 S.E.2d 265 (N.C. Ct. App. 2009), where at issue was a statutory rape statute requiring a defendant to be more than four years older than the victim. Applying the birthday rule, the defendant argued he was only four years older than his victim, since he was nineteen-years old and she was fifteen-years old at the time of the violation. Id. at 266. The appellate court disagreed, and held the defendant was more than four years older than his victim when the difference in age between them was four years and five months. Id. at 267. In reaching its ruling, the court emphasized the distinction between calculating age—in which the birthday rule could be applied—and calculating time—in which a more precise calculation was required. Id. Similarly, in State v. Jason B., 729 A.2d 760 (Conn. 1998), the Connecticut Supreme Court determined that a juvenile sex offender was more than two years older than his fourteen-year-old victim where the age difference between them was two years, three months, and seven days. The court reasoned that “common sense dictates that in comparing the relative ages of individuals, the difference in their ages is determined by reference to their respective birth dates.” Id. at 767.

Finally, the defendant’s plea for application of the rule of lenity is not availing. “The touchstone of the rule of lenity is statutory ambiguity.” Moskal v. United States, 498 U.S. 103, 107 (1990). As we already have stated, there is no ambiguity in the statutory language we are called upon to consider in the case before us. As Justice Oliver Wendell Holmes concluded over one hundred years ago, “[w]hatever the consequences, we must accept the plain meaning of plain words.” United States v. Brown, 206 U.S. 240, 244 (1907).

Accordingly, we reverse the trial court order granting removal from the sex offender registry, with directions to deny the petition.

Courtesy of David Edelstein

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Third District Court of Appeal

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

Opinion filed August 31, 2011.

Not final until disposition of timely filed motion for rehearing.

Nos. 3D10-1007 & 3D10-906

Lower Tribunal Nos. 08-32335, 08-37144C

The State of Florida,

Appellant,

vs.

Guillermo Martinez,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Dennis J. Murphy, Judge.

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

Arthur Joel Berger, for appellee.

Before RAMIREZ, SHEPHERD, and SALTER, JJ.,

RAMIREZ, J.

The State of Florida appeals the trial court’s order granting defendant’s motion to suppress evidence. We reverse because the search warrant included the items that the trial court suppressed.

On September 2, 2008, the Miami Dade Police Department received an anonymous tip about a possible marijuana hydroponics lab located on 19707 SW 84th Place, Cutler Bay (“first property”). The department dispatched Detective Diaz, along with five other officers, to perform a “knock-and-talk” at the location. When the officers arrived at the first property, they noticed a white pick¬up truck and a white van parked on the premises. Detective Diaz and the other officers approached the home. As the officers walked to the front door of the residence, they intercepted Evert Soler Vier leaving the residence.

The officers questioned Vier, asking where they could find the owner of the home. Vier explained that the owner could be found inside the residence and that he was only on the property to perform air conditioning repairs. Officers sat Vier on the exterior of the home to await further instruction. The officers then continued towards the residence. As they approached, Diaz noticed the smell of “live marijuana.” Once at the door, Diaz knocked and was greeted by Guillermo Martinez. Diaz explained why he was there and asked Martinez of the whereabouts of the homeowner. Martinez told the officers that he did not live there and did not know what was going on. The officers asked Martinez if they could search the property. Martinez did not consent to the search. Diaz escorted Martinez outside, and sat him next to Vier.

Noting the smell of marijuana, faint humming sounds, and uninterrupted air conditioning, Diaz decided that sufficient indicators of illegal activity were present to seek a warrant. Before leaving the premises, the officers entered the property to perform a protective sweep to ensure no one was present inside the home that could threaten an officer’s or the evidence’s safety. While performing the sweep, officers spotted a third man, Marin, who was then held at gunpoint and asked if he knew where the owner of the home was. Marin explained to the officers that he was inside the home to use the restroom and did not know any information regarding the owner. Marin was made to join the other two men outside the residence.

After performing the protective sweep of the property, Diaz left the residence and sought a search warrant for the first property. In his affidavit for the search warrant, Diaz gave his history of being a narcotics officer, as well as his experiences. Given his years of experience, he stated that property had several indicators for the presence of illegal activity. Diaz listed the smell of “live marijuana,” humming sounds, and uninterrupted air conditioning flow. Diaz requested that the officers be allowed to search the premises, the house and any vehicles and/or containers located on the curtilage of the property. Magistrate Meyer granted the warrant to search the first property. The warrant allowed the officers to “enter and search forthwith the premises above described, the curtilage thereof, including any vehicles and/or temporary structures within the curtilage,

and all persons found on the premises.” (internal quotations omitted). The “premises” was to include “titles, receipts and any other documents and records evidencing illegal activity, or that would lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances.”

Later that day, Diaz returned to the scene with the warrant and was joined by several other officers. The officers secured the three men within two separate squad cars, and then carried out a search of the residence. Inside the home, police officers found thirty-seven pounds of marijuana and evidence of a hydroponics marijuana lab. After searching the residence, the officers used Martinez’s keys, without his consent, to search through his pick-up truck. Inside the truck, the officers found an electric bill for a separate property located at 14957 SW 59 Street (second property) in the name of Malavy Estrada, who was not present at the first property. The officers also found receipts for payment of the second property’s electric bill within Martinez’s wallet. In addition, the officers also searched the mailbox at the first property. The mailbox contained two more utility bills for the second property, each sealed and addressed to Martinez. The officers, without an additional warrant, opened the sealed mail hoping to establish a time frame for Martinez’s payment history for the first and possible second property.

On September 3, 2008, given the billing information found on the first property, Diaz went to perform another “knock-and-talk” at the second property.

When the officers approached the property, they noted the smell of “live marijuana” a persistent humming noise, and the constant running of an air conditioning unit. After noticing the same indicators as the first property, Diaz concluded the need for an additional search warrant. Diaz’s affidavit for the warrant relied on the indicators, his experiences as a narcotics officer, and the crux of the affidavit, was the bills found at the first property, both in the mail and in Martinez’s vehicle. The magistrate granted Diaz the second warrant. Later that day, Diaz and other officers returned to search the second property. The officers entered the second property and found another hydroponics marijuana lab with approximately twenty-eight pounds of marijuana.

Martinez was charged with first-degree trafficking in cannabis for the evidence found at the first property and was subsequently charged with trafficking in cannabis, use or possession of drug paraphernalia, and grand theft with respect to the second property. He filed a motion to suppress evidence as to both cases, however the trial court only suppressed the evidence seized from the mailbox and the truck at the first property and suppressed all evidence found at the second property. With respect to the mailbox and vehicle, the court explained that the officers, when requesting the search warrant for the first property, did not specify either the mailbox or the truck in the affidavit provided for the warrant. Furthermore,

the trial court reasoned that the search of the second property was done solely on the basis of the evidence found in the mailbox and truck, thus making it invalid.

On appeal, Martinez concedes that the search of the truck was encompassed within the warrant. The warrant included any vehicles within the curtilage, and the truck was parked within the curtilage. He maintains, however, that the trial court properly suppressed items found in the mailbox and in the truck.

We review the granting of the motion to suppress de novo as the factual findings are not in the dispute. See State v. Quinn, 41 So. 3d 1011 (Fla. 5th DCA 2010). In United States v. Frank, 216 F.3d 1084 (9th Cir. 2000), the circuit court of appeals affirmed the denial of a motion to suppress evidence seized pursuant to a search warrant, stating:

Appellant argues that the trial judge erroneously admitted three “Post-it” notes, a letter, and a phone book under the plain view exception to the Fourth Amendment’s warrant requirement. Although the incriminating nature of each of these items was immediately apparent only after opening or otherwise manipulating them, the search warrant gave the police officers a lawful right to manipulate and examine the evidence because it targeted “books, papers, documents, and/or memoranda concerning the implementation of the crimes of possession, manufacture and mailing of improvised explosive devices.”

Likewise here, the officers seized three individuals at a house where they had just found thirty-seven pounds of marijuana and evidence of a hydroponics marijuana lab. None of the individuals admitted ownership or possession of the

house. The warrant allowed the police to search for “titles, receipts and any other documents and records . . . that would lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances.” When they found an electric bill inside the truck for a separate property located at 14957 SW 59 Street in the name of Malavy Estrada, who was not present at the first property, this bill could properly be considered as one that would “lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances.” The relevance of that electric bill became more apparent when the officers also properly search for and found receipts for payment of the second property’s electric bill within Martinez’s wallet.

In addition, the search warrant properly included the premises and curtilage and “any vehicles and/or temporary structures within the curtilage.” A vehicle found on the premises is considered included within the scope of a warrant authorizing a search of that premises if the objects of the search might be located in a vehicle. See State v. Ferris, 623 So. 2d 752, 753 (Fla. 2d DCA 1993); State v. Musselwhite, 402 So. 2d 1235, 1237-38 (Fla. 2d DCA 1981).

As to the search of the mailbox, the mailbox was clearly within the curtilage and was included in the premises to be searched pursuant to the search warrant. The scope of a lawful search of a fixed premises pursuant to a warrant extends to the entire area in which the object of the search may be found. See United States

v. Ross, 456 U.S. 798 (1982). This includes the authority to search through any containers that would reasonably contain the items specified in the warrant. Id. at 809. See also Jackson v. State, 18 So. 3d 1016, 1027-29 (Fla. 2009) (trial court correctly determined that a locked safe in a motel room may be opened if the items specified in the search warrant could reasonably be concealed in that location). Accordingly, the search of the home’s mailbox was also proper.

Moreover, when the officers searched the mailbox at the first property, it contained two more utility bills for the second property. As in Frank, the incriminating nature of these bills may not have been immediately apparent, but the officers had been given the right to seize any documents that would lead to the identification of persons responsible for the unlawful possession of controlled substances. These bills satisfied this requirement, which became readily apparent when Martinez’s wallet also contained a receipt for payment of an electric bill for the second property.

We thus reverse the trial court’s order granting Martinez’s motion to suppress evidence.

Reversed and remanded.

Courtesy of David Edelstein

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Courtesy of David Edelstein

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