Florida Criminal Law Opinions

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

D’ANGELO LaVELLE DIXON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CONSOLIDATED

Case Nos. 2D11-3420 2D11-3421

Opinion filed September 28, 2011.

Appeals pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hendry County; James D. Sloan, Acting Circuit Judge.

PER CURIAM.

In case number 2D11-3421, D’Angelo Lavelle Dixon appeals an order denying a motion for postconviction relief, which he filed in January 2010. In case number 2D11-3420, he appeals an order addressing pending motions deriving from an order of this court asking the trial court to respond to a writ of mandamus. This court concluded that both of these orders were affected by our recent opinion in Dixon v. State, 60 So. 3d 1179 (Fla. 2d DCA 2011). Accordingly, we relinquished jurisdiction to

the trial court for a period of forty-five days to allow it to take any action necessary in light of our earlier opinion. We even informed the trial court that it was free to vacate these orders, which would allow this court to treat the appeals as premature. The trial court took no action during the forty-five days, and jurisdiction has returned to this court.

Because we conclude that these orders were entered in reliance upon earlier orders that this court reversed in the above-cited case, we reverse these two orders and remand for further proceedings in hopes that the trial court can resolve all postconviction matters pending before it and render a single final order.

ALTENBERND, KELLY, and BLACK, 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

STATE OF FLORIDA,

Appellant,

v.

LUKE JARROD ADKINS, et al.,

Appellees.

Case No. 2D11-4559

Opinion filed September 28, 2011.

Appeal from the Circuit Court for Manatee County; Scott M. Brownell, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Robert J. Krauss, Assistant Attorney General, Tampa, for Appellant.

Larry L. Eger, Public Defender, Bradenton; John E. Hendry, Regional Counsel, Second District, Office of Criminal Conflict and Civil Regional Counsel, Bartow; Colleen M. Glenn, Bradenton; Steve Santiago, Bradenton; and Charles M.

Britt, III, Bradenton, for Appellees.

CERTIFICATION OF ORDER

REQUIRING IMMEDIATE RESOLUTION

BY THE SUPREME COURT

PER CURIAM.

The State appeals an order granting motions to dismiss filed by forty-two defendants in forty-six separate criminal proceedings pending in the Circuit Court for the Twelfth Judicial Circuit in Manatee County, Florida. Pursuant to Florida Rule of Appellate Procedure 9.125, and on its own motion, this court certifies that the order on appeal presents issues that require immediate resolution by the supreme court because the issues are of great public importance and will have a great effect on the proper administration of justice throughout the state.

The circuit court granted the forty-two defendants’ motions to dismiss on the ground that section 893.13, Florida Statutes (2002-2011), is unconstitutional. The circuit court’s order is based primarily on the reasoning of a recent decision by a United States district judge in Shelton v. Secretary, Department of Corrections, 23 Fla. L. Weekly Fed. D11 (M.D. Fla. July 27, 2011). It is similar to a decision recently issued by a circuit court judge in the Eleventh Judicial Circuit of Florida. See State v. Washington, Nos. F11-11019, F10-36703, et al. (Fla. 11th Cir. Ct. Aug. 17, 2011). These decisions appear to conflict with another opinion from the Eleventh Judicial Circuit. See State v. Anderson, No. F99-12435(A), 2011 WL 3904082 (Fla. 11th Cir. Ct. Aug. 11, 2011). Like Anderson, a circuit court decision for the Thirteenth Judicial Circuit in Hillsborough County, Florida, also appears to be at odds with Shelton and Washington. See State v. Barnett, Nos. 11-CF-003124, 11-CF-005345, et al. (Fla. 13th Cir. Ct. Aug. 12, 2011).

Section 893.13 is the criminal statute most commonly used in Florida to enforce our laws against the manufacture, possession, and sale of illegal drugs. The ruling of the circuit court in this case would appear to control pending drug prosecutions

in only one felony division of the Twelfth Circuit. This issue, however, will undoubtedly be raised in every felony division in all twenty circuits. It is clear from the four above-cited cases that judges will take at least two different approaches to the issue. It is entirely possible that many circuits will find themselves in the untenable situation of having two or more felony divisions taking opposite positions on this issue.

If this court were to review this decision and agree with the circuit court, our decision would be binding statewide and could affect literally thousands of past and present prosecutions throughout the state. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (recognizing that “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts”); Chapman v. Pinellas Cnty., 423 So. 2d 578 (Fla. 2d DCA 1982) (same).

Until this important constitutional question is resolved by the Florida Supreme Court, prosecutions for drug offenses will be subject to great uncertainty throughout Florida. Moreover, cases pending on appeal and on motions for postconviction relief will be subject to similar uncertainty. It will be difficult to reach a final resolution in many of these cases until the issue is resolved. Finally, if the ruling in this order is ultimately affirmed by the supreme court, it is possible that hundreds or even thousands of inmates will be eligible for immediate release.

We are fully aware that the supreme court prefers to resolve cases after one or more of the district courts have first provided legal analysis in a published opinion.1 In this case, given the above-described effects of delay upon the

1Rule 9.125 has existed since 1980. This court has invoked the rule only in a handful of very exceptional appeals during that period. See, e.g., In re Commitment of Morel, 35 Fla. L. Weekly D2620 (Fla. 2d DCA Dec. 1, 2010); A.L. v. State, 983 So. 2d

administration of justice, we do not believe it is appropriate for this court to delay an ultimate decision by the supreme court while we consider the issue. It is obvious that a timely decision is needed from the supreme court to avoid a multitude of serious problems in the county, circuit, and district courts. This issue has been fully briefed and thoroughly discussed in this trial court proceeding and in the other proceedings cited in this opinion. Accordingly, the supreme court will have the benefit of these existing arguments. This court is doubtful that any benefit derived from the additional legal reasoning contained in opinions prepared by this court and other district courts would outweigh the cost associated with the delay required to prepare those written opinions.

This court voted at court conference to certify this order pursuant to rule 9.125. Accordingly, this panel of judges issues this certification. We certify for the above-explained reasons that the order requires immediate resolution by the supreme court because the issue pending in this district court is an issue of great public importance and because the issue will have a great effect on the proper administration of justice throughout the state.

SILBERMAN, C.J., and ALTENBERND and LaROSE, JJ., Concur.

597 (Fla. 2d DCA 2007); State v. Goode, 779 So. 2d 544 (Fla. 2d DCA 2001); Heggs v. State, 718 So. 2d 263 (Fla. 2d DCA 1998); State v. Hootman, 697 So. 2d 1259 (Fla. 2d DCA 1997); Mann v. Chief Judge of the Thirteenth Judicial Circuit, 693 So. 2d 117 (Fla. 2d DCA 1997); Schultz v. TM Florida-Ohio Realty Ltd. P’ship, 553 So. 2d 1203 (Fla. 2d DCA 1989). In all probability, no order ever appealed to this court has been a better

example of an order warranting certification under this rule.

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Third District Court of Appeal

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

Opinion filed September 28, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D08-2580

Lower Tribunal No. 03-2072

Milton Hall,

Appellant,

vs.

State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge.

Roy D. Wasson, for appellant.

Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before ROTHENBERG, LAGOA and EMAS, JJ. EMAS, J.

Milton Hall appeals his convictions and sentence for first-degree murder and armed robbery. He asserts that, on two occasions during closing argument, the State improperly mischaracterized the evidence and that the trial court each time improperly overruled defense counsel’s timely objection.

After conducting a thorough review of the closing arguments, as well as the entirety of the evidence presented at trial, we conclude that the asserted error, if any,1 was harmless beyond a reasonable doubt, and affirm Mr. Hall’s convictions and sentence. Knowles v. State, 848 So. 2d 1055 (Fla. 2003); State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

Affirmed.

1 A careful review of the trial transcript suggests that the remarks made during the State’s closing argument could reasonably have been interpreted as calling upon the jury to assess the credibility of the witness’ testimony, rather than a mischaracterization of what that witness testified to at trial.

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Third District Court of Appeal

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

Opinion filed September 28, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-67

Lower Tribunal No. 97-32329

Antonio Johnson,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Dava J. Tunis,

Judge.

Antonio Johnson, in proper person.

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

Before RAMIREZ, SUAREZ and ROTHENBERG, JJ.

ROTHENBERG, J.

On Motion to Enforce Mandate

Antonio Johnson, who is serving a life sentence, and a “frequent flyer” with extensive mileage in this Court and the circuit court, filed the instant motion requesting this Court to enforce its August 4, 2010 mandate “vacating the trial court’s order and . . . revers[ing] with directions to re-sentence Appellant de novo or hold an evidentiary hearing.” Because this Court issued no such mandate, we deny Johnson’s motion, and in light of the numerous, repetitious, misleading, and frivolous pleadings Johnson has filed with this Court, we issue the following order to show cause.

The appellant, Antonio Johnson, is ordered to show cause within thirty (30) days: (1) why he should not be prohibited from filing further pro se pleadings with this Court concerning his July 16, 1998 conviction for armed robbery in case number 97-32329, see Johnson v. State, 744 So. 2d 557 (Fla. 3d DCA 1999), and (2) why this Court should not sanction appellant pursuant to sections 944.279 and 944.28(2)(a) of the Florida Statutes (2010). 1

1 The State alleges Johnson has sought appellate review in more than fifty petitions and appeals in this Court and the Florida Supreme Court. We list some of the petitions and appeals filed in this Court:

Johnson v. State, 773 So. 2d 1161 (Fla. 3d DCA 2000) (affirming denial of rule 3.850 motion for postconviction relief).

Johnson v. State, 831 So. 2d 189 (Fla. 3d DCA 2002) (affirming denial of rule 3.850 motion for postconviction relief).

Johnson v. State, 848 So. 2d 327 (Fla. 3d DCA 2003) (affirming denial of rule 3.850 motion for postconviction relief).

Johnson v. State, 853 So. 2d 425 (Fla. 3d DCA 2003) (appeal dismissed).

Johnson v. State, 857 So. 2d 887 (Fla. 3d DCA 2003) (affirming denial of rule 3.800 motion to correct illegal sentence).

Johnson v. State, 892 So. 2d 492 (Fla. 3d DCA 2004) (petition for writ of habeas corpus denied).

Johnson v. State, 898 So. 2d 952 (Fla. 3d DCA 2005) (affirming denial of rule 3.850 motion for postconviction relief and denying motion for rehearing).

Johnson v. State, 900 So. 2d 565 (Fla. 3d DCA 2005) (appeal dismissed).

Johnson v. Crosby, 897 So. 2d 546 (Fla. 3d DCA 2005) (petition for writ of habeas corpus denied).

Johnson v. State, 903 So. 2d 198 (Fla. 3d DCA 2005) (petition for writ of habeas corpus denied).

Johnson v. State, 905 So. 2d 140 (Fla. 3d DCA 2005) (affirming denial of rule 3.800 motion to correct illegal sentence).

Johnson v. State, 917 So. 2d 201 (Fla. 3d DCA 2005) (petition for writ of habeas corpus denied).

Johnson v. State, 917 So. 2d 877 (Fla. 3d DCA 2005) (affirming denial of rule 3.800 motion to correct illegal sentence).

Johnson v. State, 923 So. 2d 1177 (Fla. 3d DCA 2006) (petition for writ of certiorari denied).

Johnson v. State, 928 So. 2d 352 (Fla. 3d DCA 2006) (petition for writ of mandamus denied).

Johnson v. State, 932 So. 2d 562 (Fla. 3d DCA 2006) (reversing summary denial of rule 3.850 motion for postconviction relief for attachment of record demonstrating appellant was not entitled to relief).

Johnson v. State, 937 So. 2d 672 (Fla. 3d DCA 2006) (petition for writ of mandamus denied).

Johnson v. State, 937 So. 2d 1111 (Fla. 3d DCA 2006) (petition for writ of prohibition denied).

Johnson v. State, 939 So. 2d 108 (Fla. 3d DCA 2006) (affirming denial of rule 33.800 motion to correct illegal sentence).

Johnson v. State, 959 So. 2d 267 (Fla. 3d DCA 2007) (petition for writ of mandamus denied).

Johnson v. State, 959 So. 2d 1197 (Fla. 3d DCA 2007) (petition for writ of mandamus denied).

Johnson v. State, 961 So. 2d 951 (Fla. 3d DCA 2007) (petition for writ of mandamus denied).

Johnson v. State, 962 So. 2d 914 (Fla. 3d DCA 2007) (petition for a belated appeal granted).

Johnson v. State, 967 So. 2d 210 (Fla. 3d DCA 2007) (petition for writ of certiorari denied).

Johnson v. State, 967 So. 2d 307 (Fla. 3d DCA 2007) (petition for writ of mandamus denied).

Johnson v. State, 968 So. 2d 572 (Fla. 3d DCA 2007) (petition for writ of mandamus denied as moot).

Johnson v. State, 970 So. 2d 838 (Fla. 3d DCA 2007) (affirming denial of rule 3.850 motion for postconviction relief).

Johnson v. State, 970 So. 2d 838 (Fla. 3d DCA 2007) (petition for writ of mandamus denied).

Johnson v. State, 973 So. 2d 455 (Fla. 3d DCA 2008) (petition for belated appeal denied as notice of appeal filed and pending under a separate case number).

Johnson v. State, 981 So. 2d 1212 (Fla. 3d DCA 2008) (affirming denial of rule 3.850 motion for postconviction relief).

Johnson v. State, 990 So. 2d 1075 (Fla. 3d DCA 2008) (petition for belated appeal granted).

Johnson v. State, 990 So. 2d 1075 (Fla. 3d DCA 2008) (petition for writ of mandamus denied).

Johnson v. State, 995 So. 2d 504 (Fla. 3d DCA 2008) (affirming denial of rule 3.800 motion to correct illegal sentence).

Johnson v. State, 3 So. 3d 334 (Fla. 3d DCA 2009) (petition for writ of quo warranto denied).

Johnson v. State, 5 So. 3d 682 (Fla. 3d DCA 2009) (petition for writ of mandamus denied).

Johnson v. State, 6 So. 3d 68 (Fla. 3d DCA 2009) (petition for writ of habeas corpus denied0.

Johnson v. State, 11 So. 3d 957 (Fla. 3d DCA 2009) (affirming denial of rule 3.850 motion for postconvicition relief).

Johnson v. State, 19 So. 3d 320 (Fla. 3d DCA 2009) (petition for writ of prohibition denied).

Johnson v. State, 19 So. 3d 320 (Fla. 3d DCA 2009) (petition for writ of mandamus denied).

Denied; show cause order issued.

Johnson v. State, 21 So. 3d 824 (Fla. 3d DCA 2009) (appeal dismissed, writ of mandamus denied).

Johnson v. State, 22 So. 3d 556 (Fla. 3d DCA 2009) (affirming denial of rule 3.800 motion to correct illegal sentence).

Johnson v. State, 27 So. 3d 670 (Fla. 3d DCA 2010) (petition for writ of mandamus denied).

Johnson v. State, 43 So. 3d 58 (Fla. 3d DCA 2010) (affirming denial of rule 3.800 motion to correct illegal sentence).

Johnson v. State, 44 So. 3d 1183 (Fla. 3d DCA 2010) (denying petition for writ of mandamus as moot).

Johnson v. State, 50 So. 3d 1147 (Fla. 3d DCA 2010) (petition for writ of habeas corpus denied).

Johnson v. State, 56 So. 3d 779 (Fla. 3d DCA 2010) (petition for writ of prohibition denied).

Johnson v. State, 61 So. 3d 1132 (Fla. 3d DCA 2011) (affirming denial of rule 3.800 motion to correct illegal sentence).

Johnson v. State, 35 Fla. L. Weekly D1738 (Fla. 3d DCA Aug. 4, 2010) (vacating trial court’s order as the trial court lacked jurisdiction at the time the order was entered).

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Third District Court of Appeal

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

Opinion filed September 28, 2011.

Not final until disposition of timely filed motion for rehearing

No. 3D11-368

Lower Tribunal No. 09-18446

Rudolph Maxwell,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice A. Butchko, Judge.

Rudolph Maxwell, in proper person.

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

Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.

ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing filed by the State of Florida, vacate and withdraw the opinion issued in this case on July 20, 2011, and substitute the following opinion in its place:

We affirm the trial court’s order denying Rudolph Maxwell’s petition for habeas corpus. The Florida Supreme Court’s decision in State v. Montgomery, 39 So. 3d 252 (Fla. 2010) was rendered well after Maxwell’s convictions and sentences were final,1 and it is not retroactively applicable. See Witt v. State, 387 So. 2d 922 (Fla. 1980); see, e.g., Harricharan v. State, 59 So. 3d 1162 (Fla. 5th DCA 2011); Rozzelle v. State, 29 So. 3d 1141 (Fla. 1st DCA 2009). There is no legal basis for reversing the trial court’s decision to deny Maxwell’s petition for habeas relief. See Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992) (“[W]e hold that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final. . . . To benefit from the change in law, the defendant must have timely objected at trial if an objection was required to preserve the issue for appellate review.”)

Affirmed.

1 Maxwell v. State, 896 So. 2d 765 (Fla. 3d DCA 2005).

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Third District Court of Appeal

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

Opinion filed September 28, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D11-1280

Lower Tribunal No. 00-38717

Diego Jimenez,

Appellant,

vs.

State of Florida,

Appellee.

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

Diego Jimenez, in proper person.

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

Before ROTHENBERG, LAGOA and EMAS, JJ. EMAS, J.

This is an appeal from an order denying without evidentiary hearing Diego Jimenez’s motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. The trial court’s order denied the motion on the basis that it was successive and untimely.

As the State properly concedes, the claims raised by Jimenez are not barred as successive or untimely. See Pleasure v. State, 931 So. 2d 1000 (Fla. 3d DCA 2006) (holding successive motions are permitted under Rule 3.800(a) so long as the identical claim has not previously been adjudicated on the merits); accord Mims v. State, 994 So. 2d 1233 (Fla. 3d DCA 2008). See also Fla. R. Crim. P. 3.800(a) (“A court may at any time correct an illegal sentence imposed by it. . . .”). The trial court erred in summarily denying Jimenez’s motion on these grounds.

Reversed and remanded for proceedings consistent with this opinion.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

HECTOR ROMAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-402

[ September 28, 2011 ]

PER CURIAM.

Appellant entered an open plea of no contest to (I) Burglary of a Dwelling, (II) Dealing in Stolen Property, and (III) Grand Theft. He was sentenced to 30 years in prison as a habitual offender on Counts I and II and 10 years as a habitual offender on Count III. The trial court suspended the sentence, granted a downward departure, and placed appellant on two years of community control, followed by three years probation, as a habitual offender. Shortly thereafter, appellant’s community control was revoked for multiple violations, including failure to complete the drug/alcohol residential treatment program. The trial court sentenced him to 30 years in prison as a habitual offender on Counts I and II and 10 years in prison as a habitual offender on Count III.

Appellant asserts that his sentences for dealing in stolen property and grand theft violated the prohibition against double jeopardy. We hold instead that his convictions and sentences for both theft and dealing in stolen property in connection with this single scheme or course of conduct were prohibited by section 812.025, Florida Statutes (2010). See Hall v. State, 826 So. 2d 268, 271 (Fla. 2002) (holding that trial courts are statutorily prohibited from adjudicating a defendant guilty, pursuant to a plea of nolo contendere, of both theft and dealing in stolen property in connection with one scheme or course of conduct).

We disagree, however, with appellant’s other two arguments: (1) that his 30-year sentences on Counts I and II were due to the trial court’s failure to understand it had discretion in sentencing him, and (2) that

the sentence was unlawful because it was not one of the recognized sentencing alternatives in Florida. The record refutes appellant’s claim that the trial court misunderstood that it had discretion to sentence appellant to less than thirty years in prison, the maximum term of his suspended sentence. Further, the suspended sentence imposed by the court was one recognized by the Florida Supreme Court in Poore v. State, 531 So. 2d 161 (Fla. 1988).

For the reasons stated above, we remand with directions that appellant’s conviction and sentence be vacated on either Count II (Dealing in Stolen Property) or Count III (Grand Theft). See Hall, 826 So. 2d at 271 (“Just as the trier of fact must make a choice if the defendant goes to trial, so too must the trial judge make a choice if the defendant enters a plea of nolo contendere to both counts.”).

Affirmed in part, Reversed in part and Remanded. STEVENSON, GROSS and TAYLOR, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 06-2416 CF10A.

Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

LEOTIS LESTER, JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-1730

[September 28, 2011]

HAZOURI, J.

Leotis Lester, Jr., appeals from his conviction for first degree murder and attempted robbery of Mark Thibault. Lester raises two points on appeal. We affirm in all respects and choose to address his second point on appeal that the trial court erred in admitting into evidence an out-of­court identification made by the deceased victim under the dying declaration exception of the hearsay rule.

Prior to Thibault’s death, Boynton Beach Police Department detective Christopher Crawford, who had been monitoring Thibault’s condition, met with Thibault on January 26, 2007, in his hospital room to show him a photo lineup. Thibault could not speak, but blinked once for no and twice for yes when asked about each photo. When Detective Crawford showed him Lester’s picture and asked him if he was the person who shot him, Thibault blinked twice. He blinked once for all other pictures.

Lester argues that Detective Crawford’s testimony as to Thibault’s identification of Lester in the photo lineup was inadmissible hearsay because it did not meet the requirements of the dying declaration exception to the hearsay rule. He argues that there was no evidence that Thibault believed his death was imminent or that he had no hope of recovery. We disagree.

Dr. Eugenio Rodriguez treated Thibault when he was brought to the hospital on January 20, 2007. He had a gunshot wound to the left side of his neck, had been intubated, and was in critical condition. The bullet

went in though his carotid artery and into the spinal cord, transecting them both. His brain had stopped receiving blood, causing injury and severe damage because of the loss of oxygen. He had a severe spinal cord injury and was a quadriplegic. He needed assistance in breathing. Surgery was necessary for the massive bleeding. Rodriguez opined that someone with that injury would most probably die in the first three days, or if he survived, it would be in a vegetative state.

Dr. Adel Monsor began treating Thibault on January 24, 2007, in the trauma intensive care unit. Thibault was totally dependent on the ventilator and had a tracheostomy. Thibault had also had a stroke of the left hemisphere of the brain. He could not speak, but Monsor communicated with him through eye blinks and head nods. Thibault was appropriately responsive. The gunshot wound disconnected the phrenic nerves which caused his diaphragm to not work. He was unable to breathe on his own. The damage to the spinal cord and the brain were not repairable, nor would they regenerate. After Monsor saw Thibault the first day, it was his prognosis that Thibault would not survive his hospitalization. On that first day he explained to Thibault the severity of his injuries. He did not specifically tell Thibault that he was not likely to survive because that would create a barrier between him and Thibault.

On January 25, 2007, Thibault developed pneumonia and a staph infection. On January 26, 2007, Thibault had a fever, was anemic, and a neck infection started to evolve. Dr. Monsor told Thibault he was deteriorating. Thibault was more comfortable with him by that time. He told Thibault he was developing more complications and getting sicker, which Thibault acknowledged. On January 29, 2007, he specifically told Thibault his prognosis was death. Thibault agreed to a DNR.

After the doctors’ testimony, there was argument on the issue of dying declaration. Lester argued that there was no proof that Thibault had a state of mind at the time of the ID that appreciated the near and inevitable approach of death and was without any hope of recovery. The court found:

The Court does, however, after hearing the medical testimony presented, as well as the other evidence, find that Mr. Thibault did at the time of this utterance and that being the testimony would be the blinking and the – when he was shown various pictures, did in fact, know his death was immanent [sic] and inevitable. The Court does find that

based on the evidence that he did entertain no hope whatsoever of recovery.

The Court does believe that this is a dying declaration and does qualify under the evidence code and therefore I’m going [sic] grant the State’s motion to admit the evidence.

Section 90.804(2)(b), Florida Statutes (2007), provides an exception to the hearsay rule for “a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.” In Hayward v. State, 24 So. 3d 17 (Fla. 2009), the supreme court held:

Pursuant to section 90.804(2)(b), Florida Statutes (2007), and this Court’s prior rulings, the deceased must have known and “appreciated his condition as being that of an approach to certain and immediate death,” although it is not necessary that the declarant “make express utterances” that he would never recover. Henry v. State, 613 So. 2d 429, 431 (Fla. 1992) (quoting Lester v. State, 37 Fla. 382, 20 So. 232, 233 (1896)). “Rather, the court should satisfy itself, on the totality of the circumstances,” that the deceased knew he was dying. Id. (quoting Lester, 20 So. at 233). This Court has said the “absence of all hope of recovery, and appreciation by the declarant of his speedy and inevitable death, are a preliminary foundation that must always be laid to make such declarations admissible.” McRane v. State, 142 Fla. 240, 194 So. 632, 636 (1940) (quoting Lester, 20 So. at 233). Further, the declarant must not have merely considered himself in imminent danger, but he must have “believed he was without hope of recovery.” Dixon v. State, 13 Fla. 636, 640 (1870); see also Morris v. State, 100 Fla. 850, 130 So. 5 8 2 , 584 (1930) (“[The declarant] knew unquestionably, that he had been mortally wounded.”).

Id. at 30-31. Although the admissibility of evidence is generally reviewed for abuse of discretion, “whether a proper and sufficient predicate has been established for the admission of a statement under the dying declaration hearsay exception is a mixed question of law and fact that is reviewed under a ‘clearly erroneous’ standard.” Jones v. State, 36 So. 3d 903, 908 (Fla. 4th DCA 2010) (citations omitted).

In Labon v. State, 868 So. 2d 1222 (Fla. 3d DCA 2004), the victim was shot and admitted to the hospital for a penetrating wound to the head,

neck, and torso. A detective came to the trauma center and spoke with the victim shortly before his surgery and while he was in critical care. The victim was in pain, but able to communicate. He had lost sensation to his legs, had IV tubes draining blood from him and he was going into emergency surgery. He told the detective that the defendant shot him. He died eleven days later from complications of the gunshot wound to the neck. The district court affirmed the admission of this dying declaration by the trial court holding:

A declarant need not make express utterances regarding knowledge of impending death in order for the statement to be admitted as a dying declaration. However, the court must be satisfied that the deceased knew and appreciated the severity of his or her condition as one where he or she was facing imminent death.

Id. at 1223 (internal citations omitted).

In Williams v. State, 967 So. 2d 735 (Fla. 2007), the victim was stabbed in the back and in the heart, told the 911 operator that she was dying, and made statements as to who stabbed her. As well, she made statements to a detective after she regained consciousness from general anesthesia and was expressing her fear of dying. The court further noted:

Also relevant to [her] perception of her imminent death following her surgery is a recognition that she was attached to medical machinery, including a respirator, a heart monitor, and two chest tubes, of which she was clearly aware. Despite supportive attempts by hospital personnel, there is no clear evidence from the record that [she] believed she had any hope of recovery. Under these facts, we conclude that the admission of the hospital statements as dying declarations was not clearly erroneous.

Id. at 749.

As indicated from the testimony of the doctors, by the date of the statement given by Thibault, he was completely paralyzed below the neck, could not breathe on his own, had developed pneumonia and a staph infection, and had been told by the doctor of his condition and by January 26, 2007, that his condition was deteriorating. He was aware of what was happening to him because the doctor could speak to him and he would respond appropriately with the eye blinks. He was always in

the intensive care unit. From these circumstances, we conclude that the trial court’s admission of Thibault’s identification as a dying declaration was not clearly erroneous.

Affirmed.

MAY, C.J., and CONNER, J., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Charles E. Burton, Judge; L.T. Case No. 2007CF002338AMB.

Philip J. Massa, Regional Counsel, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

RICHARD JONES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2560

[September 28, 2011]

PER CURIAM.

Richard Jones (Defendant) appeals an order summarily denying his rule 3.850 motion for postconviction relief. We reverse the summary denial of ground two of the motion, and otherwise affirm.

Following a jury trial, Defendant was found guilty of possession with intent to sell or deliver cocaine,1 and was sentenced to ten years. In ground two of his timely pro se rule 3.850 motion for postconviction relief, he claimed his defense counsel was ineffective in misadvising him that his only option was to go to trial, never disclosing to him that the state had made any plea offers. He did not learn of any offer until sentencing. Had he been informed that the state had made an offer, he would have taken the plea rather than proceeding to trial.

Defendant attached excerpts from the transcript to support this ground for relief. When he was asked during the sentencing hearing if he had anything to say, Defendant told the judge that he had done all he could to resolve the case, but the state never offered him a plea and none of his three assistant public defenders ever informed him that he could have pleaded to the mercy of the court to avoid a trial. The judge assured him that his decision to proceed to trial would not affect the sentence that the judge would impose that day.

1 He was also found guilty of resisting without violence, but that conviction was reversed on direct appeal. See Jones v. State, 955 So. 2d 1208 (Fla. 4th DCA 2007).

The assistant state attorney asked Defendant’s assistant public defender whether he had anything to add in connection with not informing Defendant of his right to plead open. Counsel did not remember discussing it, but noted that, in general, he advised his clients it was preferable to preserve their appellate rights by going to trial rather than pleading open.

The prosecuting attorney then noted that there was a plea offer conveyed in the case. The presiding judge thought it best to put the matter on the record and asked the state what the offer was, but the prosecuting attorney did not believe it was appropriate to put the terms on the record and the court never insisted he do so, other than asking whether it was for less than the maximum sentence, and he confirmed that it was.

Defendant insisted he was never relayed an offer.

At that point, defense counsel admitted that there was an offer, but it was no longer available after the defense announced it was ready for trial. Again, Defendant stated he had no knowledge of any plea being offered. The court asked counsel to explain.

Defense counsel stated that when he received Defendant’s file, there was no offer in it, so he asked the prosecuting attorney whether he had conveyed one to Defendant’s prior counsel, and the prosecuting attorney forwarded that offer to defense counsel. Counsel continued as follows:

Um, that offer was discussed, the possibility of setting the case for trial was discussed with Mister Jones, at that time he wished to set it for trial. When it was set for trial it, the offer was then revoked, at that time we had further discussions about a plea negotiation. I . . . approached [the prosecuting attorney] a couple of times again, he said at that time there was no offer.

Only on further questioning by the court did defense counsel confirm he specifically recalled receiving an offer from the prosecuting attorney and relaying it to Defendant.

Following that, the trial court made a finding on the record that, as an officer of the court, defense counsel’s statement was more credible than Defendant’s testimony that he did not receive an offer, and concluded that the matter was resolved without any need for further evidentiary hearings.

The trial court summarily denied the motion, finding this claim was refuted by the record and without merit, referring to the foregoing pages of the sentencing hearing transcript.

A claimant states a sufficient ground for relief under rule 3.850 if the claimant demonstrates that he or she was unable to make an informed decision whether to enter into a plea bargain due to counsel’s neglect; that with the correct advice, he or she would have accepted the plea offer; and that acceptance of the plea would have resulted in a lesser sentence. Cottle v. State, 733 So. 2d 963 (Fla. 1999).

This claim lacks the last prong of Cottle, as Defendant did not state what terms the state offered him in order to allege that acceptance of the plea would have resulted in a lesser sentence than the one he received. But if he was telling the truth that no one relayed an offer to him, and all he knew about it is what was stated in the course of his sentencing hearing, then he would not know what terms the state had offered.

The record reflects that Defendant was sworn before addressing the court at his sentencing hearing, but neither the prosecuting attorney nor defense counsel was sworn, as they would have been had they been called to testify at an evidentiary hearing. In effect, the sentencing court made a finding of fact without hearing any evidence to contradict Defendant’s sworn testimony. Under the circumstances, the claim was not conclusively refuted by the record.

Accordingly, we reverse for further proceedings. On remand, we direct the trial court to appoint conflict counsel to represent Defendant for the purpose of discovering the terms of the plea offer, in order to assist Defendant in amending ground two of his motion to make it legally sufficient under Cottle, if he can do so in good faith once he learns the terms of the plea offer.

We affirm without further discussion the summary denial of Defendant’s remaining grounds for relief.

Affirmed in part, Reversed in part, and Remanded. TAYLOR, DAMOORGIAN and LEVINE, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; William L. Roby,

Judge; L.T. Case No. 562005CF003947A. Richard Jones, Bristol, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

ROBINSON MATHURIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-3121

[September 28, 2011]

PER CURIAM.

The defendant appeals his judgment and sentence following his no contest plea to possession of cocaine with intent to deliver or sell. He argues the trial court erred in denying his motion to suppress. The State has filed a Concession of Error because the Supreme Court of Florida has now disapproved of State v. Laveroni, 910 So. 2d 333 (Fla. 4th DCA 2005), upon which the trial court relied in denying the motion. See Harris v. State, No. 08-1871, 2011 WL 1496470 (Fla. Apr. 21, 2011).

We accept the Concession of Error, reverse the judgment and sentence, and remand the case to the trial court for proceedings consistent with this opinion.

Reversed and Remanded.

MAY, C.J., TAYLOR and GERBER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. 08- 18924CF10A.

Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.

Tringali, Assistant Attorney General, West Palm Beach, for appellee. Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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