Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

STEPHEN A. MASSENGALE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-4849

Opinion filed September 27, 2011.

An appeal from the Circuit Court for Leon County. Terry P. Lewis, Judge.

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Stephen Massengale appeals his convictions for manslaughter by driving under the influence (DUI), driving with a license suspended or revoked, DUI causing damage to a person or property, and DUI causing serious bodily injury. Appellant contends that the trial court erred by denying a motion for mistrial after

the prosecutor improperly commented in opening statement about Appellant’s constitutional right not to testify. The effect of the State’s improper remarks is subject to “harmless error” analysis. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986); Holloman v. State, 573 So. 2d 134 (Fla. 2d DCA 1991). Concluding that the State has met its burden under DiGuilio to show there is no reasonable possibility that this error affected the verdict, we affirm the convictions. See DiGuilio, 491 So. 2d at 1135.

Appellant also asserts error in the trial court’s imposition of the mandatory cost of prosecution ($100.00) pursuant to section 938.27(8), Florida Statutes (2008). The State properly concedes error because the offenses of which Appellant was convicted occurred before this authorizing statute became effective. Ex post facto principles are implicated where a statute is applied retroactively to impose a cost or surcharge and the length of a defendant’s sentence can be increased by the failure to pay. See Griffin v. State, 980 So. 2d 1035, 1037 (Fla. 2008). As payment of this $100.00 fine is a condition of Appellant’s probation, the failure to pay it could result in revocation of his probation.

We AFFIRM the judgment and sentence, except for the $100.00 fine at issue, which we REVERSE and REMAND to the trial court with directions to strike it from the judgment of fines.

WOLF, LEWIS, and RAY, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

JERMAINE A. HARRIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-2458

Opinion filed September 27, 2011.

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

Jermaine A. Harris, pro se Appellant. Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.

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

PER CURIAM.

Appellant challenges the lower court’s order granting in part and denying in part his motion to correct illegal sentence. We affirm all but the first issue, and reverse and remand with directions to reinstate the 766 days of jail credit for time served on Counts IV and V that were improperly rescinded from defendant’s initial

judgment and sentence. See Davis v. State, 63 So. 3d 847 (Fla. 1st DCA 2011); Session v. State, 37 So. 3d 873 (Fla. 1st DCA 2010); Palmer v. State, 22 So. 3d 795 (Fla. 1st DCA 2009); Canete v. Dep’t of Corrs., 967 So. 2d 412 (Fla. 1st DCA 2007); Wheeler v. State, 880 So. 2d 1260 (Fla. 1st DCA 2004).

AFFIRMED IN PART, REVERSED IN PART and REMANDED. DAVIS, PADOVANO, and ROWE, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

KENNETH JEROME ERIBY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-5184

Opinion filed September 27, 2011.

An appeal from the Circuit Court for Escambia County. Paul A. Rasmussen, Judge.

Ross A. Keene of Beroset & Keene, Pensacola, for Appellant.

Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

In April 2009, a grand jury indicted Appellant Kenneth Jerome Eriby for first-degree murder. The indictment alleged that on October 30, 2008, in Escambia County, Appellant murdered Arthur Roland by shooting him in the head with a firearm, and that the killing occurred either by premeditated design or while

committing or attempting to commit robbery, a felony. A jury later convicted Appellant of first-degree murder, and the trial court sentenced him to life in prison without parole. Appellant argues he should have received a judgment of acquittal because the State produced only circumstantial evidence at trial that was insufficient to sustain a conviction. He also argues that the trial court erred in finding prosecution witness Anthony Weatherspoon competent to testify. Without further discussion, we find no abuse of the trial court’s discretion in allowing witness Weatherspoon to testify. After reviewing the evidence de novo,1 as explained below we approve the trial court’s decision to deny Appellant’s motion for judgment of acquittal. Accordingly, we affirm Appellant’s conviction.

At approximately 7:00 p.m. on October 30, 2008, a friend of victim Arthur Roland found him in his car dead from a single gunshot to the right side of his head. The car, a dark-colored Buick sedan, was parked at the corner of S and Bobe streets in Pensacola. Roland regularly sold marijuana in the vicinity, and inside the console between the front seats of Roland’s car, a crime scene technician found several small baggies of marijuana inside a larger sandwich bag.

At trial, the State’s evidence showed that Appellant routinely bought marijuana from Roland and would get in Roland’s car to complete the transaction. Angela Brown, whose home is at the corner of S and Bobe streets, testified that on

1 See Reynolds v. State, 934 So.2d 1128, 1145 (Fla .2006).

several occasions a blue Buick pulled up in front of her house, Appellant and a friend got in the car, drove off, and returned with marijuana. She testified further that the car from which Roland’s body was removed is the same car she often saw Appellant getting into in front of her home.

A few days before the murder, Appellant had a conversation with Elizabeth Prohn during which he showed her a revolver he was carrying and told her “I’m going to get me a drug dealer. I’m tired of being broke.” Days later, Appellant showed up at the home of Kenneth Ray Harvell trying to sell marijuana to him and his son, Kenneth Joseph Harvell. The elder Harvell testified this occurred the day before he saw a news report of a man shot to death in a car at S and Bobe streets. The Harvell home is seven to ten blocks away from that location. The elder Harvell said he and his son were standing on the porch when Appellant walked up. He did not see how Appellant arrived at the house. He testified that when they declined Appellant’s offer, Appellant showed the butt of a gun inside his jacket and “jokingly” said, “I guess I’ll make a couple of blocks and take it or whatever.” The younger Harvell testified he saw the news report of the shooting later the same day Appellant came to the house. He testified the incident at his home occurred around noon, that Appellant arrived in a green Buick, and that he saw Appellant emerge from the passenger side of the car. In the younger Harvell’s recount of the incident, when Appellant failed to make the sale, he showed a gun and “said it was

all right and that he was going to hit a few corners and he’d be back.” “He just basically said he’s going to hit a few corners and do this nigger actually. That’s what he said.” Harvell testified he did not see Appellant get back into the car in which he arrived because “I don’t know where the car was parked. I didn’t see where he got in at.” Both men testified the gun Appellant showed them was a revolver. And the elder Harvell’s granddaughter Nicole Harvell testified she saw Appellant at her grandparents’ home on October 30, 2008.

Prosecution witness Anthony Weatherspoon testified he was at Jessie Booth’s house the day Arthur Roland was killed. He was there when Appellant arrived at around 4:00 or 4:30 in the afternoon carrying two bags of marijuana and announcing he “just hit a lick at S and Bobe Street.” Appellant also was carrying a black revolver that he showed to Weatherspoon and others at Booth’s house. Weatherspoon said he understood “hit a lick” to mean Appellant had robbed someone, and that Appellant doled out the marijuana he brought to others to sell for him. He testified Appellant stayed at Booth’s for approximately an hour then left.

Escambia County Sheriff’s Deputy Mark Smeester investigated the homicide. As part of his investigation, Deputy Smeester reviewed the call log of Roland’s mobile phone for answered, outgoing and missed calls on October 30, 2008. The call log registered, inter alia: answered incoming calls from

Appellant’s mobile number at 3:15 p.m. and 3:25 p.m.; outgoing calls to Appellant’s mobile number at 3:43 p.m. and 4:35 p.m.; and an answered incoming call from Roland’s girlfriend at 4:54 p.m. The 4:35 p.m. call to Appellant was the last outgoing call on Roland’s call log for October 30, 2008, and the 4:54 p.m. call from the girlfriend was the last incoming call answered. Deputy Smeester also obtained a videotape from the security camera of an auto body shop located directly across the street from the Harvell residence. It showed at approximately 4:55 p.m. on October 30, 2008, a vehicle pulled up next to the house, and someone exited the front passenger side of the vehicle, walked toward the residence, returned shortly and got back in the car. The car remained for a few minutes, then the same person again exited the front passenger door, walked toward the house, returned to the car moments later, and the car drove off. Deputy Smeester could not identify the vehicle in the videotape as Roland’s. Neither could he identify the person getting in and out of the car as Appellant.

The man who discovered Roland dead in his car at 7:00 p.m. initially saw the car parked at S and Bobe streets at 5:00 p.m. as he drove by. Neither he nor anyone else saw Appellant at that location or witnessed the shooting, and no forensic evidence directly tied Appellant to the murder. Crime scene technicians found no bullet casing either in the car or on the ground, and recovered no discernable fingerprints from the car. DNA swabs of the car’s interior and exterior

door handles yielded no match to Appellant, though he could not be excluded as a “possible contributor.” The medical examiner deemed the shooting a homicide based on stippling around the bullet wound that would not be apparent if the gun was pressed against the head as is typical in suicide. She estimated the shot was fired from between two inches and four feet away. The bullet removed from the victim’s head during autopsy had markings on it “most consistent” with having been shot from a revolver. And revolvers do not eject bullet casings when fired. But because the gun witnesses saw Appellant with was not recovered, it could not be tested to determine whether it fired the fatal shot.

The State produced no direct evidence that Appellant killed Roland, but relied solely on circumstantial evidence. To survive a motion for judgment of acquittal, the State’s circumstantial evidence not only must be sufficient to establish each element of the offense, the evidence also must be inconsistent with the defendant’s theory of events.2 Keeping in mind that it is within the jury’s province to assess witness credibility and resolve conflicts in the evidence,3 and viewing the evidence in a light most favorable to the State, as we must,4 we

2 See generally Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002); Andrews v. State, 36 Fla. L. Weekly D1792, D1793 (Fla. 1st DCA Aug. 15, 2011) (citing Darling v. State, 808 So. 2d 145, 156 (Fla. 2002)).

3 See generally Jent v. State, 408 So. 2d 1024, 1028 (Fla. 1981).

4 See generally Mosely v. State, 46 So. 3d 510, 526 (Fla. 2009); Traylor v. State, 13

conclude the State’s evidence in this case is both sufficient to prove Appellant committed murder and decidedly inconsistent with Appellant’s defense theory.

The evidence showed that at least two days before marijuana dealer Arthur Roland was shot to death, Appellant planned to “get me a drug dealer” because he was “tired of being broke.” This he announced to Elizabeth Prohn while showing her his gun, a revolver. On October 30, 2008, the date of the shooting, Appellant and Roland called each other twice between 3:15 p.m. and 4:35 p.m. On that date, Appellant also was seen getting out of the passenger side of a dark-colored Buick at the home of Kenneth Ray Harvell and Kenneth Joseph Harvell. He approached them as they stood on their porch and offered to sell them marijuana. When the Harvells turned Appellant down, he showed them he had a revolver and said he would hit a few more blocks or corners and then “take it” or “do this nigger.” Later, he arrived at Jessie Booth’s house carrying two bags of marijuana sufficient to distribute to others to sell for him, displaying his revolver, and saying he had just “hit a lick” at S and Bobe streets. Roland was killed with a bullet bearing markings “most consistent” with being fired from a revolver. Revolvers do not eject bullet casings upon being fired, and indeed, no bullet casing was found in Roland’s car or on the ground around the car. We find this evidence sufficient for the jury to conclude that Appellant, who was “tired of being broke,” either

So. 3d 77, 78 (Fla. 1st DCA 2009).

premeditated killing a drug dealer to get drugs to sell himself or planned to take the drugs at gunpoint. Appellant targeted Arthur Roland, a dealer from whom he frequently bought marijuana. He drove around with Roland for a period, shot him, and took enough marijuana to distribute to others to sell for him.

Furthermore, the evidence is inconsistent with Appellant’s theory of defense. Appellant, his sister, his stepfather and Jessie Booth testified for the defense. According to their testimony, Appellant bought $25 worth of marijuana from Arthur Roland on October 30, 2008, between 3:30 p.m. and 4:00 p.m. in the parking lot of the Howard Johnson hotel where he had been staying with his girlfriend. Around 4:30 p.m., his sister picked him up from the hotel and, after stopping at a convenience store and the sister’s boyfriend’s house, she dropped him off at his mother’s house between 5:00 p.m. and 6:00 p.m. While there, Roland called Appellant to say his payment for the marijuana was $3 short, and “he was just laughing.” Appellant said he was at his mother’s house for approximately one hour. His sister then drove him to Jessie Booth’s house where he stayed for “an hour, two hours” before returning to the hotel for the rest of the night. Appellant denied seeing Roland after their hotel parking lot transaction. He denied possessing a firearm that day. He denied going to the Harvells’ house, though he testified he telephoned them in hopes he could sell them some crack as he had done in the past. And he denied being anywhere near Bobe Street.

Because the State’s circumstantial evidence was sufficient to establish either premeditated murder or felony murder, and was inconsistent with the defense theory, the trial court correctly denied Appellant’s motion for judgment of acquittal and sent the case to the jury. See Evans v. State, 26 So. 3d 85, 89 (Fla. 2d DCA 2010) (“If an inconsistency exists between the defendant’s theory of innocence and the State’s evidence, then the trial court should deny the motion for judgment of acquittal and allow the jury to resolve the inconsistency.”) citing Boyd v. State, 910 So.2d 167, 181 (Fla.2005).

AFFIRMED.

WOLF and MARSTILLER, JJ., CONCUR; DAVIS, J., CONCURS IN RESULT.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

RICKIE EDWARD WILDER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-5196

Opinion filed September 27, 2011.

An appeal from the Circuit Court for Escambia County. Jan Shackelford, Judge.

Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant challenges the judgment and sentence entered after he pled guilty to one count of grand theft, seven counts of forgery, and seven counts of uttering forged checks. Appellant entered into a plea agreement. In exchange for the plea,

he agreed to be adjudicated guilty and sentenced to 60 months in prison. At the sentencing hearing, Appellant was sentenced to 100 months in prison. Appellant contends that this sentence was in violation of the plea agreement. The State properly concedes error. “„A plea agreement is a contract and the rules of contract law are applicable to plea agreements.?” Armstrong v. State, 985 So. 2d 1156, 1158 (Fla. 3d DCA 2008) (quoting Garcia v. State, 722 So. 2d 905, 907 (Fla. 3d DCA 1998)). We REVERSE and REMAND to the trial court for imposition of a sentence of 60 months? imprisonment.

THOMAS, ROBERTS, and CLARK, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

ANTHONY BUSH, JR.,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 1D11-3203

Opinion filed September 27, 2011.

Petition for Writ of Habeas Corpus — Original Jurisdiction.

Michael Ufferman of the Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.

Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Respondent.

PADOVANO, J.

Anthony Bush, the defendant in a pending criminal case, petitions this court for a writ of habeas corpus to review an order entered under the pretrial detention statute, section 907.041, Florida Statutes (2011). We conclude that the detention order was unlawful. The court had previously admitted the defendant to bail and the state did not have good cause to seek a modification of the earlier order.

Because the defendant’s detention is illegal he is entitled to relief by habeas corpus. We grant the petition and quash the detention order.

The defendant was arrested on April 10, 2011, in connection with the robbery of a jewelry store in Tallahassee. He appeared in court the next day before a county court judge for a first appearance hearing on charges of armed robbery, grand theft of property valued in excess of $100,000, and use of a firearm in the commission of a felony. The county judge reviewed the probable cause affidavit and then offered the state and the defense an opportunity to address the matter of bail.

Defense counsel acknowledged the seriousness of the charges but argued that the court should set reasonable conditions of release, given the fact that the defendant was a full-time college student at a local university. He disclosed to the court that the defendant had a juvenile court record but pointed out that he had no prior adult criminal record.

The prosecutor representing the state at the first appearance hearing agreed to an order setting bail in the amounts established by the local bail schedule. According to the schedule, the presumptive amounts would be $25,000.00 for the armed robbery charge, $25,000.00 for the grand theft charge, and $10,000.00 for the firearm charge. During the hearing, the prosecutor represented to the judge that “the state would be satisfied with the bond schedule,” along with some form of monitoring community restraint, perhaps an ankle monitor.

The county judge decided to admit the defendant to bail and informed all present that this decision was based in part on the state’s recommendation. The following dialogue took place between the court and the defendant on this point:

THE COURT: I think you need to understand something right now, Mr. Bush. This is a life felony. I wasn’t going to set a bond. I’ll go ahead and follow the State’s recommendation. Let me promise you, if you slip up at all, you’re going to be held without bond; these charges are so serious.

THE DEFENDANT: Thank you, Your Honor.

With that admonition, the judge set bail for the three offenses in the total amount of $60,000.00, according to the bail schedule.

Later that same day, another prosecutor filed a motion before another judge, this time a circuit judge, for an order holding the defendant without bail under the provisions of the pretrial detention statute. Defense counsel objected to the motion on the ground that there was no lawful reason to modify the bail order entered at the first appearance hearing.

The hearing on the state’s motion began with a question by the circuit court judge regarding the effect of the prior bail order. In response to this inquiry, the prosecutor stated that the motion for pretrial detention was not the equivalent of a motion to reconsider or modify bond, as the defense had suggested, but rather that it was a remedy the state was entitled to pursue. As the prosecutor explained, “I’m not asking for a do-over first appearance; I’m moving under a whole different vehicle.”

Despite this statement, the prosecutor then offered the following candid explanation for the state’s earlier agreement to release the defendant on bail:

My understanding of the first appearance, Your Honor is, quite candidly, is the assigned Assistant State Attorney . . . agreed to a bond. She had recently found out some traumatic news to her professionally, and was not focusing on the ball. I could tell you more specifics about that. But she came to my office later in the day, and realized that she had agreed to a bond that was – - on a case that she didn’t realize was PBL [a first degree felony punishable by life], on a situation that the State would normally be asking for a no-bond.

To clarify this point, the prosecutor explained that he had filed the motion for pretrial detention because he “recognized the fact that [he] did not have grounds” to seek reconsideration of the order entered at the first appearance hearing.

The circuit judge overruled the defense objection and proceeded to the merits of the motion for pretrial detention. A law enforcement officer testified that a latent fingerprint taken from the counter in the jewelry store belonged to an alleged accomplice, Avery Davis, and that when the officers confronted Davis with the fingerprint, he confessed to the crime and implicated the defendant, Bush. A video surveillance tape in another jewelry store in the same shopping mall depicted the defendant and Avery Davis walking together, and the appearance of the two men in the video was consistent with the descriptions given by the victims of the robbery. Finally, the officer testified that a clerk at a jewelry exchange in Pembroke Pines, Florida, had identified the defendant, Bush, from a photo lineup

as a person who had twenty diamond rings in his possession and who had, in fact, pawned some of the rings at the exchange.

Based on the evidence presented at the hearing, the circuit judge held that the state had established all of the legal requirements for pretrial detention. He concluded that the state had not waived its right to seek pretrial detention by agreeing to bail at the first appearance hearing. Alternatively, the judge found that the evidence regarding the photo lineup identification by the clerk in Pembroke Pines was significant new evidence that would justify reconsideration of the earlier bail decision. The judge granted the state’s motion and ordered that the defendant be held in custody without bail.

We begin our review of the order by noting that habeas corpus is the proper remedy to challenge the legality of a detention or restraint under which a person is being held. See Seccia v. Wainwright, 487 So. 2d 1156 (Fla. 1st DCA 1986); Suarez Ortega v. Pujals de Suarez, 465 So. 2d 607 (Fla. 3d DCA 1985). The remedy is often employed in criminal cases to seek review of trial court orders pertaining to bail and pretrial release. Among other kinds of orders within this general class, an order detaining a defendant under the pretrial detention statute is reviewable by habeas corpus. See Schwartz v. Neumann, 731 So. 2d 746 (Fla. 4th DCA 1999).

To properly address the issues presented by the petition in this case we must consider the provisions of two rules. Rule 3.131(d)(2) of the Florida Rules of

Criminal Procedure provides that the state may seek modification of bail or the conditions of release set by an order entered at the first appearance hearing only by showing that there is good cause for the modification. To satisfy the “good cause” requirement in this rule, the prosecution must present evidence of a change in circumstances or information not made known to the first appearance judge. See Sikes v. McMillian, 564 So. 2d 1206 (Fla. 1st DCA 1990); Keane v. Cochran, 614 So. 2d 1186 (Fla. 4th DCA 1993); Michael E. Allen, Florida Criminal Procedure § 9:7 (2011) (discussing the rule and case law on this point). Evidence that was available to the state at the time of the first appearance hearing does not qualify as new information and therefore does not justify a subsequent denial of bail or a subsequent increase in the amount of bail.

Rule 3.132(a) authorizes the state to file a motion for pretrial detention at or before the first appearance hearing. 1 However, the grounds for detaining an individual might not be known or fully developed at that time. Subdivision (b) of the rule accounts for this possibility by providing that the state may file a motion for pretrial detention “at any time prior to trial.”

1 Section 907.041, Florida Statutes sets the substantive requirements for pretrial detention in noncapital cases. However, the Legislature has expressly deferred to the courts as to the procedural requirements for pretrial detention. See § 907.041(2), Fla. Stat. (2011) (stating that the “[p]rocedures for pretrial release determinations shall be governed by rules adopted by the Supreme Court”).

The defendant contends that the pretrial detention order is invalid under rule 3.131(d)(2), because the circumstances had not changed since the time of the original bail order, and the state did not present any evidence at the pretrial detention hearing that it could not have presented earlier. In response, the state maintains that it may file a motion for pretrial detention at any time, even if the circumstances have not changed since the entry of a prior order admitting the defendant to bail.

The case law in Florida supports the position advocated by the defendant. For example, in Goelz v. Bradshaw, 906 So. 2d 1234 (Fla. 4th DCA 2005), the appellate court quashed a pretrial detention order on the ground that there was no new evidence or change of circumstance to justify a modification of the bail order originally entered at the first appearance hearing. The court explained:

[A] revocation of bond requires a change in circumstances or information that was not disclosed to the court when the bond was originally set. Nevadomski v. Jenne, 756 So. 2d 117 (Fla. 4th DCA 2000); Santos v. Garrison, 691 So. 2d 1172 (Fla. 4th DCA 1997); Keane v. Cochran, 614 So. 2d 1186 (Fla. 4th DCA 1993). The State has the burden of proving that there is a change in circumstances or new information that warrants the increase or revocation of bond. Lee v. Bieluch, 855 So. 2d 713 (Fla. 4th DCA 2003).

Goelz, 906 So. 2d at 1235.

Likewise, in Homerding v. Jenne, 804 So. 2d 349 (Fla. 4th DCA 2001), the appellate court granted a petition for writ of habeas corpus and directed the trial court to reinstate an earlier bail order. The court reasoned that the pretrial

detention order was invalid because there was no evidence that the circumstances had changed after the initial order setting bail.

The state contends that we should reject these authorities because they fail to give full effect to the statement in rule 3.132(b) that “a motion for pretrial detention may be filed at any time prior to trial.” Specifically, the state argues that this rule should not be read in pari materia with other rules, because the statement regarding the time for filing the motion is not ambiguous. We agree that rule 3.132(b) is not ambiguous and that we therefore have no occasion to construe it in light of rule 3.131(d), but the issue presented here is not an issue of interpretation, it is an issue of application.

The fallacy in the state’s argument is that it assumes that rules 3.131(d) and 3.132(b) are always mutually exclusive. That is not the case. In a procedural setting like this one in which a pretrial detention motion was filed after bail had been set by agreement of the parties, the court must apply the requirements of both rules. The state cannot rely on favorable language in one rule to work around the requirements of the other. Because the motion for pretrial detention in this case was filed after the court had entered an order setting bail, it must meet the “good cause” requirement of rule 3.131(d) as well as the substantive requirements for pretrial detention as set forth in rule 3.132. To put this another way, a motion for pretrial detention filed after the entry of an order setting bail is also a motion to modify bail.

The statement in rule 3.132(b) that a motion for pretrial detention may be filed at any time before trial merely signifies that the defendant’s release status is open for consideration at all times during the course of the pretrial proceedings. Nothing in the language of the rule suggests that a motion for pretrial detention may be used as a vehicle to nullify an earlier bail order or to retract an unwise agreement on the matter of bail. To the contrary, the statement at issue deals only with the time for filing the motion. If the state elects to file a motion for pretrial detention after bail has been set by order of the court, the motion must also meet the requirements for modifying the existing order.

The state argues that the petition for writ of habeas corpus should be denied in any event because the circuit judge had good cause to modify the conditions set earlier by the county judge. This position is at odds with the representations the state made in the trial court. The prosecutor conceded from the start of the hearing that there was no new information that would justify a modification of the earlier order setting bail. Instead, he relied entirely on his view that good cause was not necessary.

Moreover, a comparison of the probable cause affidavit reviewed by the county court judge and the testimony presented to the circuit court judge reveals that the evidence before the two courts was substantially the same. The evidence presented to the circuit court judge pertained exclusively to the strength of the

probable cause affidavit, it was not new. The only part of the evidence that was even arguably new was the officer’s testimony that a witness at the jewelry exchange in Pembroke Pines was able to identify the defendant as a person who was attempting to pawn some diamond rings. But this adds very little to the evidence before the county judge. During the search of the defendant’s residence, law enforcement officers found a receipt showing that the defendant had pawned jewelry at the same jewelry exchange in Pembroke Pines. This information was contained in the probable cause affidavit.

In summary, we conclude that there was no legal justification to modify the original order setting bail and that the subsequent order detaining the defendant without bail under the pretrial detention statute is therefore invalid. For these reasons, we grant the petition for writ of habeas corpus and quash the pretrial detention order. The effect of our decision will be to reinstate the original order admitting the defendant to bail.

Petition granted.

DAVIS, J., CONCURS. RAY, J., DISSENTS.

2 Although it is proper to consider the strength or weakness of the evidence against the defendant in setting bail, that is only one of many factors that have a bearing on the decision. Section 903.046, Florida Statutes (2011) contains a comprehensive list of the factors a judge should consider when admitting a defendant to bail or setting the amount of bail. See also Fla. R. Crim. P. 3.131(b)(3).

RAY, J., DISSENTING.

I would deny the petition for two reasons. First, the “good cause” requirement of Rule 3.131(d)(2), relating to modification of bail, is not applicable to motions filed under Rule 3.132, relating to pretrial detention. Second, even if the “good cause” limitation did apply, the State presented information from which the trial court could determine that this requirement had been met.

The State’s motion for pretrial detention was authorized under Rule 3.132(b), titled “Motions filed after First Appearance.” The rule explicitly states that “[a] motion for pretrial detention may be filed at any time prior to trial” and that a hearing on the motion is required “[o]n receipt of a facially sufficient motion and a determination of probable cause . . . that an offense eligible for pretrial detention has been committed.” Fla. R. Crim. P. 3.132(b)-(c) (emphasis added). The State is not required to establish “good cause,” i.e., the existence of circumstances or information not known to the first appearance judge, in order to trigger the trial court’s mandatory review of its motion. See Fla. R. Crim. P. 3.132(c). Rather, the State’s burden is to show “beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in section 907.041, Florida Statutes.” Fla. R. Crim. P. 3.132(c)(1).

The comprehensive statutory scheme of section 907.041, Florida Statutes (2010), circumscribes the trial court’s authority to order pretrial detention. In relevant part, it provides that a court may order pretrial detention if it finds a

substantial probability that “[t]he defendant poses the threat of harm to the community.” § 907.041(4)(c)5. As the statute explains, the court may reach this conclusion if it makes the following findings:

that the defendant is presently charged with a dangerous crime, that there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons.

Id. Notably, there is no restriction on or qualification of the court’s ability to make these findings based on the fact that the defendant has previously been released on bail. See id. Thus, requiring the State to establish “good cause” to seek pretrial detention after bail has been set would inject into the statute and rule language not expressed by the Legislature or the Florida Supreme Court, contrary to well-established rules of statutory construction. See L.G. v. State, 939 So. 2d 1141, 1142-43 (Fla. 1st DCA 2006) (noting that where the Legislature has used a term in one part of the statute but omitted it from another part, the court “will not imply it where it has been excluded”) (quoting Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995)).

Nevertheless, Petitioner urges this Court to impose the “good cause” requirement of Rule 3.131 on the State’s Rule 3.132 motion by reading the two rules in pari materia. The primary vehicle for determining legislative intent is “the plain text of the relevant statute,” or in this case, rule. See E.A.R. v. State, 4 So.

3d 614, 629 (Fla. 2009) (emphasis added). If that text is unambiguous, the court’s inquiry should end. Id. Although there is an exception to this rule in cases where other provisions in pari materia with the relevant provision reveal an inconsistency, id., the two rules at issue in the instant case are not inconsistent with each other because they operate under different circumstances. See Castro v. State, 914 So. 2d 467, 469-70 (Fla. 5th DCA 2005) (declining to “stir the two rules together” and impose a restriction on the trial court’s determination of the amount of bond simply because that restriction appears in the rule governing pretrial detention). For this reason, I agree that we should reject Petitioner’s invitation to construe the two rules in pari materia.

For the same reason, I would decline to interpret Rule 3.131(d)(2) as applicable to a Rule 3.132 motion, even after the defendant has been granted pretrial release. It is true that a pretrial detention order necessarily revokes any previously ordered conditions of release. However, revocation of bail is qualitatively different from modification of bail. Cf. Hannah v. State, 814 So. 2d 1129, 1130-31 (Fla. 5th DCA 2002) (treating revocation of probation as a distinct inquiry from modification of conditions of probation). As defined by Rule 3.131(b)(1), bail means “any of the forms of release” listed in subdivision (b)(1) of that rule. Thus, when the court modifies bail under Rule 3.131(d), it is changing the form of release, not revoking release. This qualitative difference explains why the Florida Supreme Court adopted two distinct rules, each with its own standards,

procedures, and safeguards, to address the two separate matters of pretrial release and pretrial detention. Because the State sought pretrial detention rather than modification of the conditions of release, we have no occasion to apply the requirements of Rule 3.131; doing so is the functional equivalent of construing the two rules in pari materia.

Even if the “good cause” limitation of Rule 3.131 is read into Rule 3.132, I would affirm the trial court’s determination that such cause existed in the instant case. At the pretrial detention hearing, the State provided the court with evidence that was not presented to the first appearance judge.1 See Keane v. Cochran, 614 So. 2d 1186, 1187-88 (Fla. 4th DCA 1983) (“In order to have good cause to modify a bond, the state must present evidence of a change in circumstances or information not made known to the first appearance judge.”). Although much of this evidence was available to the State at first appearance and referenced in the probable cause affidavit, the jewelry exchange witness’ positive identification of

1 Even though the first appearance judge’s comments suggest that he would have been inclined to order pretrial detention, he was precluded from doing so because the State had not filed a motion for this protective measure at that time. See Fla. R. Crim. P. 3.132(a). After filing the motion for pretrial detention, the State provided the court with much greater evidentiary detail about the risk the defendant poses to the community. Cf. Goelz v. Bradshaw, 906 So. 2d 1234, 1236 (Fla. 4th DCA 2005) (Farmer, J., dissenting) (recognizing the significance of the fact that the judge who revoked pretrial release had the opportunity to consider a threatening letter in its entirety, while the first appearance judge had been presented with excerpts only).

Petitioner did not become available to the State until after that time. The court expressly found this evidence to be “significant new information” which strengthened the case against Petitioner and provided further support for the court’s finding that Petitioner poses a threat of harm to the community. While the degree to which this new evidence changed the circumstances is debatable, I would not second-guess the trial court’s determination of its weight. See Hernandez v. State, 56 So. 3d 752, 758 (Fla. 2010) (“When reviewing the sufficiency of evidence presented to a trier of fact, our task is not to . . . reweigh the evidence.”).

For the foregoing reasons, I respectfully dissent.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

ELIJAH JONES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-1568

Opinion filed September 23, 2011.

An appeal from the Circuit Court for Escambia County. Frank L. Bell, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant was sentenced to three years in prison for driving while his license was cancelled, suspended, or revoked. He does not challenge his conviction on appeal; he only challenges his sentence. He contends that the trial court erred in imposing a prison sentence because the record does not support the court?s finding

pursuant to section 775.082(10), Florida Statutes (2009), that a nonstate prison sanction would present a danger to the public. Alternatively, Appellant contends that his prison sentence violates Apprendi1 and Blakely2 because it exceeds the nonstate prison sanction required by section 775.082(10) and is based on a finding made by the court rather than the jury. We reverse on the first issue and, thus, do not reach the Apprendi/Blakely issue.3

On July 24, 2009, Appellant was observed by a law enforcement officer driving his brother?s pick-up truck. Appellant was the only occupant in the truck, and after the officer observed Appellant illegally park the truck, he made contact with Appellant and asked for his driver?s license. Appellant replied that he did not have a valid license, and after the officer checked Appellant?s information against the records of the Department of Highway Safety and Motor Vehicles, he arrested Appellant as a habitual traffic offender.

Appellant proceeded to trial and the jury returned a guilty verdict. The trial court noted that Appellant?s conviction was a third-degree felony, subjecting him to up to five years in prison even though he only had 8.2 points on his sentencing

1 Apprendi v. New Jersey, 530 U.S. 466 (2000).

2 Blakely v. Washington, 542 U.S. 296 (2004).

3 We are satisfied that the first issue is preserved for appellate review in light of the argument presented below and the unique and tortured procedural history of the sentencing process in this case, which culminated in a perfunctory resentencing “hearing” at which the trial court simply imposed the same sentence it had initially imposed.

scoresheet. Appellant argued that, pursuant to section 775.082(10), the court could not impose a prison sentence absent a finding that a nonstate prison sanction could present a danger to the public. The trial court thereafter sentenced Appellant to three years in prison based on the following written findings:

Defendant has evinced an unwillingness to discontinue driving without a driver’s license, despite repeated punishment by the Courts;

Driving without a license endangers the public due to the probability of Defendant’s attempting to elude law enforcement due to his suspended license, which could lead to a high speed automobile chase;

Another danger to the public is that Defendant’s insistence on driving without a license also requires that he drive without automobile insurance, as an unlicensed driver, such as Defendant, cannot have insurance to assist a victim should he be involved in an accident; and

Defendant’s unavailability to drive due to incarceration in State prison is the only method open to the Court for the protection of the public from Defendant’s irresponsible and dangerous behavior.

Appellant contends that these findings are not supported by the record and, therefore, the trial court erred in imposing a prison sentence under section 775.082(10). We agree.

Section 775.082(10) provides:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter

810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

The clear purpose and obvious intent section 775.082(10) was to keep certain offenders out of the state prison system.4 The statute operates similarly to

4 Section 775.082(10) was enacted in 2009 as a part of a cost-savings measure for the Department of Corrections, and the legislative staff analysis characterized the statute as a “prison diversion approach” pursuant to which the trial court was required to “sentence certain non-violent low-scoring offenders to a non-state prison sanction unless the court finds that such a sentence could endanger the public.” See Fla. Comm. on Ways & Means, Bill Analysis & Fiscal Impact Statement for CS/SB 1722, at 1 (Apr. 6, 2009) (on file with comm.). The staff analysis explained the rationale for the statute as follows:

Under current law a judge can sentence any third degree felon for up to five years in prison regardless of the total sentence score. In the last few years thousands of offenders whose sentence points are under the 44 point threshold recommended for a prison sanction have been sentenced to state prison. The absence of adequate diversionary programs and the overcrowding of jails have reportedly encouraged this trend of sending more low-level offenders to state prison.

According to [DOC], research has shown that diversionary programs which offer substance abuse treatment, vocational programming, employment and job training and intense supervision have reduced offender recidivism and reduced prison populations by implementing these programs. The goal of these programs is to improve public safety by reducing crime through providing non-violent offenders with the tools to

the pre-Criminal Punishment Code sentencing guidelines5 by establishing a presumptive sentence from which the trial court may deviate up to the statutory maximum in limited circumstances and only if the court explains its reasons in writing. The first sentence of the statute provides that the presumptive mandatory sentence for qualifying offenders is a “nonstate prison sanction.” § 775.082(10), Fla. Stat. The statute does define “nonstate prison sanction,” but the phrase is commonly understood to mean probation, community control, or imprisonment in the county jail for up to one year.6 The second sentence of the statute allows the trial court to deviate from the presumptive sentence and impose a prison sentence, but only if the court specifically finds that sentencing the offender to a nonstate prison sanction could present a danger to the public. Id. The trial court?s findings must be in writing. Id.; see also Hutto v. State, 50 So. 3d 85 (Fla. 1st DCA 2010).

There is very little case law interpreting section 775.082(10). The only case reviewing the sufficiency of the findings made by the trial court to justify a prison

function successfully in the community.

Id. at 3.

5 See generally § 921.0016, Fla. Stat. (1995); Fla. R. Crim. P. 3.701, 3.988.

6 This common understanding is consistent with the usage of the phrase in section 921.00241, which, like section 775.082(10), was enacted through chapter 2009-63, Laws of Florida. See § 921.00241(3), Fla. Stat. (using the phrase “nonstate prison sanction” to refer to a sentence imposed under subsection (2) of that statute, i.e., “a term of probation, community control, or community supervision with mandatory participation in a prison diversion program of the Department of Corrections if such program is funded and exists in the judicial circuit in which the offender is sentenced”).

sentence, rather than a nonstate prison sanction, is McCloud v. State, 55 So. 3d 643 (Fla. 5th DCA 2011). In that case, the defendant pled guilty to two counts of petit theft and was sentenced to two years in prison followed by two years of community control. Id. at 644. At the trial court, the defendant argued that he did not pose a danger to the public because he had no history of violence. Id. The trial court found, however, that the defendant was a danger to the public because his “larcenous behavior was so well-known and frequent that when he was seen in a neighborhood, additional police resources were deployed to his location.” Id. The Fifth District upheld the defendant?s prison sentence on the basis that the defendant was a “habitual thief and presents a threat to property.” Id. at 645. The court specifically held that “„danger may, at least in some cases, encompass pecuniary or economic harm.?” Id. at 644 (quoting U.S. v. Reynolds, 956 F.2d 192, 192-93 (9th Cir. 1992)); see also id. at 645 (concluding that there is “nothing in the language of section 775.082(10) that suggests that the Legislature intended to limit the meaning of „danger to the public? only to persons threatening physical violence or injury”).

We agree with the reasoning of Fifth District in McCloud that a danger to the public does not require a history of violence and can be based on economic or other types of harm. However, the record in this case does not support the trial court?s finding regarding Appellant?s potential future dangerousness. Although Appellant?s history of driving without a license arguably supports the trial court?s

finding that he will continue to do so, the court did not make sufficient findings and the record does not suggest that imprisonment within the state prison system rather than the county jail would better deter him from continued unlicensed driving. Nor is there any record support for the court?s implicit finding that one year of incarceration in the county jail would constitute a significantly lesser deterrent for Appellant than three years in state prison. The trial court?s additional findings are speculative at best because it does not appear from the record that Appellant has a history of vehicle accidents or engaging in high speed chases with law enforcement. Accordingly, because the trial court?s findings are unsupported by the record, the court erred in imposing a prison sentence rather than a nonstate prison sanction in accordance with section 775.082(10).

In sum, for the reasons stated above, we reverse Appellant?s sentence and remand for resentencing. On remand, the trial court shall sentence Appellant to a nonstate prison sanction as required by section 775.082(10). See Shull v. Duggar, 515 So. 2d 748, 750 (Fla. 1987) (holding in a case involving an upward departure under the sentencing guidelines that “a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court”); but cf. Jackson v. State, 64 So. 2d 90 (Fla. 2011) (holding that a trial court may again impose a downward departure sentence under the Criminal Punishment Code on remand where the appellate court

reverses the grounds for the initial departure). REVERSED and REMANDED with directions.

WETHERELL and SWANSON, JJ., CONCUR; THOMAS, J., CONCURRING IN RESULT ONLY WITH OPINION.

THOMAS, J., CONCURRING IN RESULT ONLY.

I concur in result only because, as both parties agree and the trial court initially ruled, the sentence here violates Appellant?s Sixth Amendment right to a jury trial. Blakely v. Washington, 542 U.S. 296 (2004). While fealty to judicial restraint requires courts to avoid constitutional issues if possible, it is not possible here for one simple reason: As the State argues, Appellant did not preserve the non-constitutional ground for reversal, as he did not raise the argument below at the resentencing hearing. See Steinhorst v. State, 412 So. 2d 332 (Fla. 1982). Section 924.051(1)(b), Florida Statutes, defines the preservation requirement as follows: “„Preserved? means . . . that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefore.” (Emphasis added.) Subsection (3) of this statute clearly prohibits this court from considering an unpreserved error, unless it constitutes fundamental error. The issue relied upon by the majority is obviously not fundamental error, as the majority simply disagrees with the trial court?s evaluation of the evidence of Appellant?s behavior and its likely consequences.

Because the trial court ordered resentencing based on Appellant?s rule 3.800(b) motion, a de novo proceeding was conducted. Lebron v. State, 982 So. 2d 649, 659 (Fla. 2008) (resentencing is a “clean slate” and the State is required to establish facts even if previously established in prior sentencing hearing). Thus,

the State properly concedes that the constitutional claim was preserved, although it would not have been preserved had the trial court initially denied relief, as the claim could not be properly raised by a motion filed under rule 3.800. See Jackson v. State, 983 So. 2d 562 (Fla. 2008).

It is for this very same reason, i.e., that a resentencing hearing is reviewed de novo, that the non-constitutional ground was not preserved — under section 924.051, Florida Statutes, and the contemporaneous objection rule, Appellant had a duty to repeat all sentencing arguments at the resentencing hearing in order to preserve those issues.

At the resentencing hearing, the parties focused almost exclusively on the Sixth Amendment issue, and the defense made only a vague allusion to any complaint regarding the statutory findings related to public safety. In addition, the trial court made it clear the original sentence had been vacated, and then it imposed the same prison sentence. If Appellant wished to preserve his statutory arguments, he was required to repeat his objections, with specificity, at the de novo resentencing hearing. See Brooks v. State, 54 So. 3d 1069, 1071 (Fla. 4th DCA 2011) (holding that Appellant failed to preserve alleged error at resentencing); cf. Cromartie v. State, ____ So. 3d ____ 2011 WL 3715074 (Fla. August 25, 2011) (“[W]here there is no contemporaneous objection during sentencing hearing and where the error does not qualify as a „sentencing error? that can be raised in a rule

3.800(b) motion, the error can still be considered . . . if the error is fundamental.”) (quoting Jackson v. State, 983 So. 2d 562, 574). The Florida Supreme Court has made it clear that the preservation rule even applies in death penalty cases. Baptiste v. State, 995 So. 2d 285, 302 (Fla. 2008). Furthermore, both parties correctly agree that Appellant is entitled to relief under Blakely, and Appellant did not respond to the State?s correct assertion that he failed to preserve his non-constitutional claim.

Thus, the only ground for reversal is the violation of Appellant?s Sixth Amendment right to have a jury make the necessary findings to justify a sentence in excess of the “statutory maximum.” But because the majority erroneously addresses an unpreserved argument, which is flawed even on the merits, I will address both issues.

I. Statutory Findings

As to the issue of public safety, the trial court found that 1) Appellant has refused to obey Florida?s laws regarding driver?s licenses; 2) Appellant cannot obtain automobile insurance, because he does not possess a driver?s license, and thus, he poses a risk that any victim of his driving will likely have no viable financial recourse against him; 3) Appellant will not voluntarily stop for law enforcement in the future, knowing that he will be subject to prosecution for driving without a license; and thus, 4) a sentence limited to one year of

incarceration in a local facility is not sufficient to protect the public. These findings, which are based on facts or reasonably foreseeable consequences, all support the trial court?s ultimate conclusion that a nonstate prison sanction is not sufficient to protect the public. This explains why the State correctly conceded at oral argument that “on these facts,” the prison sentence under section 775.082(10), Florida Statutes, violates the holding of Blakely – not because the judge?s findings are flawed, but because only a jury of Appellant?s peers can make such a finding.

II. Blakely v. Washington Controls

The only error committed by the trial court was its decision reversing itself and denying relief based on Blakely. The trial court?s order on Appellant?s second motion filed under Florida Rule of Criminal Procedure 3.800(b)(2) states that “the statutory scheme utilized to sentence the Defendant appears to be unconstitutional in that it allows a judicial finding that a nonstate prison sanction could present a danger to the public to increase the maximum permissible sentence under the statute.” Yet at its ordered resentencing, the trial court reversed its position and imposed the sentence at issue here.

As initially recognized by the trial court, under Blakely, the “statutory maximum” term is any nonstate prison sanction. Appellant was sentenced to state prison, thus, by definition, his sentence exceeds the statutory maximum term. This is necessarily true, because nothing inherent in the jury verdict establishes the

“fact” that a nonstate prison sanction is insufficient to protect the public. While the trial court could logically reach such a conclusion, under Blakely, only a jury can make that decision beyond and to the exclusion of a reasonable doubt.

Thus, without a jury finding, a trial court cannot impose a “dispositional departure,” i.e., incarceration rather than probation, because that would exceed the statutory maximum by increasing the quantum of punishment even though the length of the sentence might be no different. In other words, five years of probation is most certainly not equal to five years of state prison: the latter is qualitatively, albeit not quantitatively, more severe. Accordingly, a “dispositional departure” is just as invalid for Sixth Amendment analysis as a “durational departure.”

At least one other state supreme court has agreed based on a similar sentencing law. State v. Allen, 706 N.W.2d 40 (Minn. 2005), cert. denied, 547 U.S. 1106 (2006). In Allen, the Minnesota Supreme Court properly recognized that a statute which created a presumptively probationary sentence had established that sentence as a “statutory maximum” term for Sixth Amendment purposes under Blakely; accordingly, a prison sentence under this statutory scheme violated Blakely, because the punishment was greater than probation, even though the length of the sentence might be the same: “The additional loss of liberty that results from [a prison sentence as compared to probation], it is plain, exceeds the

maximum sentence authorized by a plea of guilty or jury verdict, and violates the constitutional rule.” 706 N.W.2d at 46 (emphasis added).

The United States Supreme Court has declared that the “statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict, or admitted by the defendant.” Blakely, 542 U.S. at 303 (emphasis in original). This principle is drawn from the Supreme Court?s previous ruling in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely, the Supreme Court simply clarified Apprendi by further defining “statutory maximum” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303 (emphasis in original).

Only a jury can make findings to authorize a sentence beyond the statutory maximum. Thus, the trial court could not impose a sentence greater than one year in the county jail, two years of community control, or up to five years of probation, or any combination thereof, unless a jury determined that the greater sentence was necessary to protect the public.

Accordingly, the majority should not interpret section 775.082(10) based on

sentencing guidelines principles now rendered obsolete by Blakely. We do not advance sound jurisprudence in this state by rejecting the arguments of both parties and ignoring binding United States Supreme Court case law. We should hold that a trial court lacks the lawful authority under this statute to make any findings without a special jury verdict or a waiver of the defendant?s Sixth Amendment right. Thus, I concur in result only that Appellant?s sentence must be reversed.

Courtesy of David Edelstein

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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

SHAWN D. SINGFIELD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D10-5116

Opinion filed September 23, 2011.

Appeal pursuant to Fla. R. App. P.

9.141(b)(2) from the Circuit Court for Hillsborough County; Susan Sexton, Judge.

PER CURIAM.

Shawn D. Singfield appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In 2008, Singfield admitted to violating community control and was sentenced to sixty months in prison for false imprisonment and to sixty-five months in prison for aggravated battery. We affirm the denial of Singfield’s motion but write to address the allegation raised in ground three, that his trial counsel was ineffective for advising him

that he would receive an eighteen-month sentence if he admitted violating condition five of his community control.

In ground three, Singfield alleged that his counsel assured him that because he was familiar with the presiding judge, he would receive only an eighteen-month sentence. Singfield claimed that his counsel advised him that during the colloquy before sentencing, he should answer no when asked if anything had been promised to him and answer yes when asked if he was satisfied with his attorney, which he did. Based on his attorney’s advice and coaching, Singfield allegedly believed that his counsel had worked out an agreement with the court. Had he known that he would instead be sentenced to sixty months in prison, Singfield claimed he would have advised the court that he was promised a lesser sentence, that his admission was not free or voluntary, and that he wished to proceed to a violation of community control hearing.

The following discussion took place during the colloquy:

THE COURT: By pleading guilty to this new charge you are admitting to violating the terms and conditions of your community control, specifically condition five, do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: You are giving up your right to have a violation of community control hearing, do you understand that?

THE DEFENDANT: Yes.

THE COURT: Has anyone promised you anything or threatened you in any way in order to get you to do so?

THE DEFENDANT: No, sir.

THE COURT: Do you understand that you do have a 65 month Florida State Prison suspended sentence, do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that in all likelihood that is the sentence you are going to receive today, do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Do you still wish to plead guilty and admit to violating your community control?

THE DEFENDANT: Yes, sir.

The court’s singular act of advising Singfield of the maximum sentences faced is insufficient to refute the allegation of misadvice. See Ely v. State, 13 So. 3d 167, 169 (Fla. 2d DCA 2009) (holding that the trial court’s advising defendant of the possible sentence he could receive did not necessarily put him on notice that he could not rely on counsel’s representations about the length of sentence he would receive); but see Scheele v. State, 953 So. 2d 782, 785 (Fla. 4th DCA 2007) (holding that the defendant could not have reasonably relied on his lawyer’s supposed advice regarding the length of the sentence he faced since the trial judge told him in no uncertain terms of the maximum sentence he faced).1 However, the court’s advice to Singfield was clearly qualified: the court informed him that in all likelihood, he would be sentenced to sixty-five months in prison, despite having previously informed him of the maximum sentences. The trial court’s statement placed Singfield on notice that he could not rely on counsel’s statements to the contrary. Cf. Ely, 13 So. 3d at 169.

In Ely, the defendant claimed that counsel was ineffective for providing erroneous advice regarding sentencing and that but for counsel’s ineffectiveness, he

1This court has expressly refused to follow Scheele. See Ely, 13 So. 3d at 167, 168 (“While the postconviction court is correct in its reading of Scheele, such is not the law in the Second District.”).

would not have entered a plea and would have gone to trial. 13 So. 3d at 168. In remanding for further consideration, this court reasoned that

[a]lthough the trial court did advise Ely that he could possibly receive a seven-year prison sentence, at the time of such advice, Ely was aware that there was still a scoresheet dispute to be settled, and according to the allegation in his

motion, his attorney had advised him that if he scored out to probation, he would receive probation.

Id. at 169. Under a broad reading of Ely, Singfield may have been entitled to an evidentiary hearing. At Ely’s plea hearing, “[t]he trial court acknowledged that there was still a scoresheet issue to be resolved, proceeded with the plea colloquy, and set sentencing for a future date so that a pretrial investigation could be conducted and the scoresheet issue could be resolved.” Id. But in the case at hand, the record does not indicate, and Singfield does not allege, that there were additional issues to be resolved by the trial court, which may have given Singfield a reason to continue to rely on counsel’s representations. Once the court advised Singfield of his probable sentence, he had “an affirmative duty to speak up if the attorney . . . promised something different.” Flores v. State, 57 So. 3d 218, 220 (Fla. 4th DCA 2010).

Additionally, Singfield’s allegation includes a claim that he lied under oath. “[A] defendant should be estopped to receive an evidentiary hearing on a postconviction claim when the basis of the claim is that he lied under oath at the relevant hearing.” Polk v. State, 56 So. 3d 804, 808 (Fla. 2d DCA 2011). But Polk recognizes that the court’s outcome is “based more on practicalities than pure logic” and acknowledges the current conflict in the case law. Id. (certifying as a question of great public importance:

“May prisoners in postconviction proceedings prevent the answers they gave under oath at plea or sentencing hearings from conclusively refuting their claim by alleging that

their attorney instructed them to lie about whether the attorney made any promises before they entered their pleas?”).

Based on the facts of this case, the transcript attached to the postconviction court’s order conclusively refutes Singfield’s allegation of misadvice of counsel. Furthermore, the trial court’s advising Singfield that in all likelihood he would be sentenced to sixty-five months in prison informed him that he could not rely on counsel’s representations to the contrary.

Affirmed.

NORTHCUTT, KELLY, and VILLANTI, 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

STEVE A. HUTCHINS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D10-5640

Opinion filed September 23, 2011.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Thane B. Covert, Judge.

Steve A. Hutchins, pro se.

PER CURIAM.

Steve Hutchins challenges the order of the postconviction court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the denial of ground four of the motion and remand for further proceedings. In all other respects, we affirm.

In September of 1983 Hutchins pleaded guilty to two counts of handling and fondling a child under the age of fourteen in exchange for sentences of ten years’ probation concurrent on both counts. In 1986 the State filed an affidavit of violation of probation alleging that Hutchins committed a new sexual offense against the same child victim.1 Hutchins absconded from supervision and was arrested in Georgia in January 2008. In May 2008 following an evidentiary hearing wherein the victim testified, the trial court revoked Hutchins’ probation finding that he violated condition five of his probation which required him to live at liberty without violating the law. Hutchins elected not to be sentenced under the sentencing guidelines, and the trial court sentenced him to fifteen years’ prison on each count of handling and fondling, with the sentences to run concurrently.

In ground four of the rule 3.850 motion, Hutchins alleged that his election not to be sentenced under the sentencing guidelines2 was involuntary because the guidelines scoresheet prepared by the State was inaccurate and counsel was ineffective in failing to detect the errors in the scoresheet. Specifically, Hutchins alleged that the correct permitted range under the guidelines was any nonstate prison sanction or community control to three and one-half years’ prison rather than the permitted range of five and one-half to twelve years’ prison as calculated by the State. Hutchins alleged that he would have elected to be sentenced under the guidelines had counsel advised him of the correct permitted sentencing range.

1In 2008 the State filed an amended affidavit of violation of probation alleging that Hutchins also violated two other conditions of his probation.

2The 1983 version of the sentencing guidelines is applicable in this case. See § 921.001(4)(b)(1), Fla. Stat. (2008); Logan v. State, 921 So. 2d 556, 559 (Fla. 2005).

The postconviction court denied this claim, finding that had Hutchins requested to be sentenced under the guidelines, the trial court would not have been bound to honor his request because Hutchins’ offenses were committed prior to the effective date of the 1983 sentencing guidelines. This is an incorrect statement of the law. A defendant who was placed on probation prior to October 1983 is entitled to be sentenced under the guidelines when probation is revoked after October 1, 1983, provided that the defendant affirmatively elects a guidelines sentence. See Shaw v. State, 63 So. 3d 898, 899-90 (Fla. 5th DCA 2011). “When reviewing a court’s summary denial of a rule 3.850 motion or claim, the court must accept the movant’s factual allegations as true to the extent they are not refuted by the record.” Franqui v. State, 59 So. 3d 82, 95 (Fla. 2011). We conclude that Hutchins presented a cognizable claim that his election not to be sentenced under the guidelines was involuntary based on trial counsel’s alleged failure to advise him of the correct sentencing range.3 The record before this court does not refute Hutchins’ claim.4 We therefore reverse the summary denial of ground four of the motion and remand to the postconviction court to consider the claim on its merits.

Affirmed in part, reversed in part, and remanded.

WHATLEY, DAVIS, and KELLY, JJ., Concur.

3If Hutchins’ calculation of the permitted range under the sentencing guidelines is correct, it would have been illogical for him not to elect to be sentenced under the guidelines, particularly because he violated probation by committing a new offense against the same victim and then absconded from supervision.

4For example, Hutchins alleged that the 1986 handling and fondling offense was improperly scored as an additional offense at conviction. The portion of the transcript of the sentencing hearing attached to the postconviction court’s order does not establish that Hutchins was sentenced on anything other than the 1982 offenses or even that he was convicted of the 1986 offense.

Courtesy of David Edelstein

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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

JOHNNY K. STEPHENS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D10-2955

Opinion filed September 23, 2011.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Richard A. Luce, Judge.

Johnny K. Stephens, pro se.

PER CURIAM.

Johnny K. Stephens appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

In 2006, Stephens pleaded guilty to attempted robbery and was sentenced to ten years in prison as a habitual felony offender with a five-year mandatory minimum as a prison releasee offender. Stephens claimed that the predicate felonies used to sentence him as a habitual felony offender did not satisfy the sequential requirement of

section 775.084(5), Florida Statutes (2003), necessary for the imposition of a habitual felony offender sentence. He asserted that the judgments and sentences for the predicate offenses in case numbers CRC00-20221 and CRC01-12896 were entered on the same day and should have been treated as a single qualifying offense for habitual felony offender purposes.

In response, the State conceded that the judgments and sentences submitted during Stephens’s sentencing did not support a habitual felony offender sentence but noted that Stephens also had out-of-state felony convictions in Virginia that would support the habitual offender designation. The State submitted a request to the Virginia Department of Corrections and obtained certified orders of Stephens’s convictions in the state. The postconviction court held that the sentence was lawful because the convictions in case numbers CRC00-20221 and CRC01-12896 occurred on two separate dates, thereby meeting the predicate felony requirement. The postconviction court also noted that the Virginia judgments and sentences submitted by the State would also qualify Stephens for a habitual sentence.

Initially, we note that the documents supporting the Virginia convictions were not entered into evidence at sentencing but were submitted during postconviction proceedings. This evidentiary process is outside of the limits of rule 3.800(a). See, e.g., Casey v. State, 788 So. 2d 1121, 1122 (Fla. 2d DCA 2001). However, because the motion was properly sworn and timely filed within two years of the January 25, 2008, issuance of the mandate on Stephens’s direct appeal, rule 3.850 would authorize an evidentiary hearing on this motion. See id.

Stephens correctly argued, and the State properly conceded, that the convictions in case numbers CRC00-20221 and CRC01-12896 can only be counted as one prior felony conviction for habitual enhancement purposes. See Bover v. State, 797 So. 2d 1246, 1250 (Fla. 2001) (“[A]lthough the sentencing for separate convictions arising out of unrelated crimes can take place on the same day, the sentences cannot be part of the same sentencing proceeding.”). The convictions were entered on the same day, in the same proceedings, and do not meet the sequential conviction requirements of section 775.084(5). See id.; see also Johnson v. State, 790 So. 2d 1163, 1163 (Fla. 2d DCA 2001); Westberry v. State, 906 So. 2d 1141, 1142 (Fla. 3d DCA 2005). Because the convictions only count as one prior felony, alone, they are insufficient to qualify Stephens for habitual felony offender sentencing.

Additionally, the attached Virginia convictions are not prior convictions and cannot be used as a qualifying felony. See Johnson v. State, 752 So. 2d 702, 704 (Fla. 2d DCA 2000); Gavlick v. State, 740 So. 2d 1212, 1214 (Fla. 2d DCA 1999); Cornet v. State, 791 So. 2d 593, 594 (Fla. 3d DCA 2001). For the Virginia convictions to qualify as a predicate felony for enhancement purposes, the felony “must be a prior felony and the defendant must have been convicted of that prior felony within five years of the date of commission of the offense for which the defendant is being sentenced.” Gavlick, 740 So. 2d at 1214; see Cornet v. State, 791 So. 2d at 594 (“A crime committed subsequent to the one for which defendant is being sentenced cannot serve as a qualifying felony for purposes of imposing a habitual offender sentence.”). The attached documents from the Virginia Department of Corrections indicate that Stephens was arrested on November 4, 2004, for possession of heroin and possession of a firearm and was

convicted on July 20, 2005. Stephens committed the current offense on September 28, 2003, before he was convicted of the Virginia offenses. Based on the record before us, Stephens lacks the requisite predicate felony convictions to qualify as a habitual felony offender.

We therefore reverse the order of the postconviction court affirming Stephens’s habitual felony offender sentence with directions for the court to hold an evidentiary hearing pursuant to rule 3.850 on the issue of qualifying predicate felony offenses.

Reversed and remanded.

WHATLEY, NORTHCUTT, and KELLY, JJ., Concur.

Courtesy of David Edelstein

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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

JOSE LUIS MORALES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D10-4831

Opinion filed September 23, 2011.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hendry County; Christine Grieder, Judge.

Jose Luis Morales, pro se.

DAVIS, Judge.

Jose Luis Morales appeals the order denying his timely motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised five grounds for relief. We reverse and remand for further

proceedings on ground three only. We affirm the remainder of the postconviction court’s order without comment.

On June 8, 2009, Morales pleaded guilty to attempted sexual battery of a child under twelve years of age and burglary with battery. Morales was sentenced to concurrent terms of twenty years’ imprisonment on each count, followed by ten years of sex offender probation. However, Morales claimed that his plea was involuntary due to his counsel’s affirmative misadvice regarding the probable length of his sentence. Specifically, Morales claimed that his counsel informed him that if he accepted the plea and maintained good behavior, he would only serve fourteen years of the twenty-year sentence. This estimate was allegedly based on a pending change in gaintime law that would supposedly benefit Morales upon coming into effect. Morales claimed that had his counsel not provided affirmative misadvice as to the amount of time he would ultimately serve, he would not have entered his guilty plea.

The postconviction court denied this claim as an attempt to go behind the plea, finding that the plea colloquy had addressed Morales’s maximum sentence and whether Morales had been promised anything. See Stano v. State, 520 So. 2d 278, 279-80 (Fla. 1988) (holding that a defendant cannot relitigate the plea when it was clear the plea was voluntarily entered). However, the Florida Supreme Court has held that certain claims of ineffective assistance of counsel based on erroneous advice cannot be refuted by the plea colloquy unless it specifically and correctly addressed the issue upon which the misadvice was given. See State v. Leroux, 689 So. 2d 235, 237 (Fla. 1996).

Furthermore, such valid claims of erroneous advice extend to misrepresentations about the effect and application of gaintime on the length of the defendant’s prison sentence, as is the case here. See Leroux, 689 So. 2d at 236; Borders v. State, 936 So. 2d 737, 738 (Fla. 2d DCA 2006). In such cases, “were it to be made clear to a defendant at the time the plea was entered that he could not rely on anyone’s estimated computation of the time the defendant would actually serve, then such a defendant would have no basis to complain later.” Leroux, 689 So. 2d at 237. However, where a basic plea colloquy is given, it typically “cannot be said that respondent’s allegations of the misadvice of counsel are ‘conclusively’ rebutted.” Id.

In Morales’s case, the court conducted a standard plea colloquy that did not include a discussion of sentence length specific enough to satisfy the Leroux standard or conclusively rebut counsel’s alleged misadvice. Accordingly, we must reverse the postconviction court’s denial of ground three. On remand, the postconviction court is instructed to either attach portions of the record conclusively refuting Morales’s claim or conduct an evidentiary hearing. We affirm the order in all other respects.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, J., Concurs. KELLY, J., Dissents.

Courtesy of David Edelstein

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