Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

HERIBERTO VILA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-4020

Opinion filed October 28, 2011

Appeal from the Circuit Court for Orange County,

Bob Leblanc, Judge.

James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, C.J.

Heriberto Vila was convicted of burglary of a conveyance and battery. He appeals only his conviction of battery, contending that he was entitled to a jury instruction regarding the justifiable use of non-deadly force. We conclude that Vila was entitled to the requested instruction, but that the failure to provide it was harmless error. As a result, we affirm the conviction and sentence.

The day before the incident, a thief stole tire rims from one of Vila’s friends. The next day the victim, an “elderly gentleman,” was driving in Vila’s neighborhood collecting usable items left curbside discarded as trash. Vila saw the victim, who coincidentally drove a truck similar to the rim thief’s, and assumed that he was the rim thief. Vila, using his car to block the victim’s truck from leaving the neighborhood, approached the truck while yelling at the victim, and accused him of stealing the rims.

The victim testified that Vila opened the door to his truck, reached inside, pulled him out, threw him to the ground, and began hitting him with a bicycle tire. Vila, on the other hand, testified that he did not enter the truck, and, instead, that the victim got out of the truck, and “armed” himself with a bicycle rim. According to Vila, in fear of being struck by the victim, he retrieved an object from a nearby yard to defend himself. When asked if he hit the victim, Vila stated, “When he hit me first, then I hit him. He hit me first and he fell and so I hit him.”

Vila requested a jury instruction of justifiable use of non-deadly force regarding the battery charge. The trial court denied his request, saying, “there is no self-defense when you create the situation.” After Vila was convicted of the burglary of a conveyance and battery, this appeal followed.

Generally, a trial court’s decision to give or withhold a proposed jury instruction is reviewed for an abuse of discretion. Davis v. State, 922 So. 2d 438, 444 (Fla. 5th DCA 2006); Worley v. State, 848 So. 2d 491, 491 (Fla. 5th DCA 2003). However, in a criminal proceeding, the trial court’s discretion is narrower because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under Florida law.

Cruz v. State, 971 So. 2d 178, 181-82 (Fla. 5th DCA 2007). In determining whether to give a requested instruction, the trial court should consider the evidence presented without weighing the evidence, as the latter is a task for the jury. Rockerman v. State, 773 So. 2d 602, 603 (Fla. 1st DCA 2000). “The question of self-defense is one of fact, and is one for the jury to decide where the facts are disputed.” Dias v. State, 812 So. 2d 487, 491 (Fla. 4th DCA 2002) (citing Scholl v. State, 115 So. 43, 44 (Fla. 1927)).

Vila argues that because he presented some evidence that he was defending himself from the victim’s attack, the trial court erred in denying his requested jury instruction based on section 776.012, Florida Statutes (2010), which provides, in part:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force . . . .

According to Vila’s testimony, the victim attacked him first, and he responded in order to defend himself against that attack. The State contends that Vila was not entitled to the instruction because the evidence that he presented was minimal and self-serving. This argument lacks merit as a defendant is entitled to a self-defense instruction if there is any evidence to support his defense. Wright v. State, 705 So. 2d 102, 104 (Fla. 4th DCA 1998) (holding that defendant is entitled to jury instruction on his theory of case if there is any evidence to support it, no matter how flimsy that evidence might be); Taylor v. State, 410 So. 2d 1358, 1359 (Fla. 1st DCA 1982) (holding defendant entitled to

requested self-defense instruction no matter “how weak or improbable his testimony may have been with respect to the circumstances” leading to commission of offense).1 However, self-defense is statutorily unavailable to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself,

§ 776.041(1)&(2), Fla. Stat. (2010). Though not clear, it appears that the trial court concluded that the self-defense instruction was unavailable to Vila based upon one or both of these statutory exceptions. That was error, as it is within the province of the jury to make the determination as to whether the defendant surrendered his right to self-defense pursuant to section 776.041. See generally Redding v. State, 41 So. 3d 353, 354 (Fla. 2d DCA 2010); Cancel v. State, 985 So. 2d 1127, 1129-30 (Fla. 5th DCA 2008); Bates v. State, 883 So. 2d 907, 908 (Fla. 2d DCA 2004). If evidence exists that raises self-defense as an issue, the proper approach is to offer the self-defense instruction with the forcible felony or initial provocation exceptions. See generally Cancel, 985 So. 2d at 1127.

1 When there is no evidence that a defendant acted in self-defense or when the justification defense is inconsistent with other asserted defenses, a defendant is not entitled to a self-defense instruction. See Keyes v. State, 804 So. 2d 373, 375 (Fla. 4th DCA 2001) (“As a general rule, a defendant’s contention that his injury of another was an accident bars an instruction on self[-]defense or defense of another.”); Roberts v. State, 753 So. 2d 136, 137 (Fla. 2d DCA 2000) (affirming denial of instruction where defendant failed to present any evidence to support self-defense); Moyer v. State, 558 So. 2d 1045 (Fla. 5th DCA 1990) (affirming denial of justification jury instruction because it was inconsistent with alibi defense). None of those circumstances are present here.

Nonetheless, we conclude the error was harmless. The jury found Vila guilty of burglary of a conveyance. Given the evidence presented, the jury necessarily credited the victim’s testimony that Vila reached into the truck and pulled him out. That being the case, Vila either committed a forcible felony or initially provoked the use of force against himself, either situation precluding a claim of self-defense.

The harmless error analysis is applicable to jury instructions. Ashland Oil, Inc. v. Pickard, 269 So. 2d 714 (Fla. 3d DCA 1972). The jury’s unchallenged verdict on the burglary charge causes us to conclude that Vila was the initial aggressor and surrendered his right to self-defense. It has long been held that the refusal to give a proper instruction that would have not aided a party is harmless error. First Nat’l Bank v. Roberts, 109 So. 635 (Fla. 1926); Pennington v. State, 107 So. 331 (Fla. 1926); May v. Seymour, 17 Fla. 725 (1880). As a result, we affirm. See Driggers v. State, 105 So. 841 (Fla. 1925) (holding refusal of requested instructions does not require reversal where defendant not prejudiced).

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

THADDEUS BAXTER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-4193

Opinion filed October 28, 2011

3.850 Appeal from the Circuit Court for Brevard County,

John Griesbaum, Judge.

James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, C.J.

Thaddeus Baxter appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

Mr. Baxter pled guilty to the charge of sale or delivery of a controlled substance in 1985. At the time of his plea, neither Mr. Baxter’s attorney nor the judge advised Mr. Baxter of the deportation consequences of entering the plea. Now, more than twenty

five years later, Mr. Baxter, citing Padilla v. Kentucky, 130 S. Ct. 1473 (2010), contends that his plea was involuntary because his attorney failed to inform him about the deportation consequences of his guilty plea.

Mr. Baxter’s motion is untimely. A motion for postconviction relief based on the failure to advise a defendant regarding possible deportation consequences of a guilty plea is held to the same two-year time constraints as other postconviction motions. State v. Green, 944 So. 2d 208, 218 (Fla. 2006). Further, this Court has held that Padilla does not apply retroactively. See Santiago v. State, 65 So. 3d 575, 576 (Fla. 5th DCA 2011); State v. Shaikh, 65 So. 3d 539, 540 (Fla. 5th DCA 2011).

For these reasons, we affirm the denial of Mr. Baxter’s motion for postconviction

relief.

AFFIRMED.

MONACO and EVANDER, JJ., concur.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

ANGEL LUIS RIVERA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D11-1084

Opinion filed October 28, 2011

Appeal from the Circuit Court for Osceola County,

Scott Polodna, Judge.

James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, C.J.

Angel Rivera appeals his conviction of grand theft.1 Mr. Rivera contends that the evidence was insufficient to prove the value of the items taken.2 Because we find that this issue was not preserved for appellate review, we affirm.

1 § 812.014(1),(2)(c)1., Fla. Stat. (2010).

Mr. Rivera was charged with stealing various items from the victims with an aggregate value of $300 or more. The victims testified that they paid approximately $400 for the stolen laptop computer five months prior to the theft, and between $300 and $400 for the stolen X-Box game console five years earlier. They also purchased a number of X-Box games for about $55 each, but did not testify about their value or condition. The State did not offer any testimony concerning the fair market value of the property taken at the time of the theft, and Mr. Rivera did not question the sufficiency of the evidence concerning the fair market value of the stolen property at any point below. Now, on appeal, Mr. Rivera argues that the State failed to present sufficient evidence of the fair market value of the stolen property and, as a result, his felony conviction should be reduced to the lesser offense of petit theft of the second degree. See Alvarez v. State, 56 So. 3d 912 (Fla. 5th DCA 2011); see also Smith v. State, 955 So. 2d 1227, 1229 (Fla. 5th DCA 2007) (holding that state is required to present competent evidence to prove value of stolen property at time of theft).

The contemporaneous objection rule applies to challenges to the sufficiency of the evidence. See F.B. v. State, 852 So. 2d 226, 229-30 (Fla. 2003). With two exceptions, a defendant must preserve a claim of insufficiency of the evidence through a timely challenge in the trial court. The first exception is in death penalty cases, in which the supreme court’s review of the sufficiency of the evidence is required by rule. The second exception occurs when the evidence is insufficient to show that a crime was committed at all. Id. Mr. Rivera is not a death-sentenced prisoner nor does he argue

2 Mr. Rivera was also convicted of burglary of a dwelling, three counts of possession of a firearm by a convicted felon, and three counts of grand theft of a firearm. He does not challenge any of these convictions on appeal.

that no crime was committed. Rather, Mr. Rivera argues only that the evidence proves him guilty of petit, not grand theft. Because the matter was not preserved for appellate review, we must affirm Mr. Rivera’s grand theft conviction.

AFFIRMED.

MONACO and EVANDER, JJ., concur.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

ALAN SOWERBY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D11-1132

Opinion filed October 28, 2011

Appeal from the Circuit Court for Citrus County,

Richard A. Howard, Judge.

James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

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

MONACO, J.

The appellant, Alan Sowerby, appeals the judgment and sentence associated with his conviction for driving while his license was permanently revoked. Because the stop of Mr. Sowerby’s vehicle was violative of the Fourth Amendment to the United States Constitution, we reverse.

The premise underscoring the analysis of this case rests on the principle that the stopping of an automobile by a law enforcement officer constitutes a seizure and detention and is governed by the Fourth Amendment to the United States Constitution. See Delaware v. Prouse, 440 U.S. 648 (1979); State v. Jones, 483 So. 2d 433 (Fla. 1986). If it is an investigative detention, it must be temporary and it must last no longer than is necessary to effectuate the purpose of the stop. See Florida v. Royer, 460 U.S. 491, 500 (1983).

The adjudicative facts are that Mr. Sowerby’s vehicle was stopped by a law enforcement officer because the officer thought that the license plate on the vehicle was improperly mounted as it was not within the mounting brackets normally found on the back of an automobile. The license plate, however, was a dealer plate with a magnetic back. The testimony reveals that although the plate was not within the brackets on the trunk of the car, it was mounted on the trunk and was “not higher than 60 inches and not lower than 12 inches from the ground and no more than 24 inches to the left or right of the centerline of the vehicle,” as required by section 316.065(1), Florida Statutes (2010). That is to say, the dealer plate was, in fact, lawfully mounted and within the statutory limits, and thus the stop could not have been based on a founded suspicion that a crime had been, was being, or was about to be committed. See Whren v. United States, 517 U.S. 806, 810 (1996), cert. denied, 522 U.S. 1119 (1998).

As the police officer neared the car, he testified that he noticed that the license plate was a dealer plate, and not an ordinary license plate. In any event, when the officer approached Mr. Sowerby, he told him the reason for the stop and asked to see Mr. Sowerby’s drivers’ license. Mr. Sowerby at that time admitted that he had none, and

was placed under arrest. After he was charged with driving while his license was permanently revoked, Mr. Sowerby moved to suppress all evidence and statements made during the traffic stop, arguing that the law enforcement officer lacked the requisite probable cause or reasonable suspicion to believe that a crime had been, was being, or was about to be committed. The stop, in his view, was illegal. The trial court decided otherwise.

A trial court’s ruling on a motion to suppress is subject to a mixed standard of review. An appellate court is bound by such of a trial court’s findings of fact as are supported by competent, substantial evidence; however, the application of the law to those facts is subject to de novo review. See State v. K.N., 66 So. 3d 380, 384 (Fla. 5th DCA 2011).

An application of the law to the facts of this case suggests that the vehicle stop was unjustified and that the suppression motion should, therefore, have been granted. State v. Diaz, 850 So. 2d 435 (Fla.), cert. denied, 540 .S. 1075 (2003) is instructive in this regard. In Diaz, a case involving a temporary license plate, the Florida Supreme Court held that as soon as an officer determines that the basis for his or her stop is invalid, the officer, without more, no longer has reasonable grounds to further detain a driver or to subject the driver to a subsequent personal examination, including the requirement to provide further information. More specifically, the court held:

[O]nce a police officer has totally satisfied the purpose for which he has initially stopped and detained the motorist, the officer no longer has any reasonable grounds or legal basis for continuing the detention of the motorist. Here, as soon as the officer determined the validity of Mr. Diaz’s temporary tag, he no longer had reasonable grounds or any other basis, legal or otherwise, to further detain Mr. Diaz. Having completely ascertained the validity of the temporary license

plate, the law enforcement officer no longer had any cause or suspicion supporting the existence of a traffic or any other violation. Further, under the facts presented here, he certainly had no articulable or reasonable suspicion to support the detention of Mr. Diaz. There was nothing whatsoever questionable about the vehicle or those persons in the vehicle and there simply was no hint of any criminal activity. While the officer’s reason for the initial stop may arguably have been legitimate, once that bare justification had been totally removed, the officer’s actions in further detaining Mr. Diaz equated to nothing less than an indiscriminate, baseless detention. . . .

Thus, even if we assume that the officer made a proper initial stop of Mr. Sowerby’s vehicle,1 he should have ceased asking for additional information when he found that the plate was, in fact, properly placed.2 See also Hilgeman v. State, 790 So. 2d 485 (Fla. 5th DCA 2001) (a law enforcement officer is charged with knowledge of the law and his misapprehension of the law will not establish probable cause for an arrest for a violation).

The State now argues, however, that the officer properly stopped Mr. Sowerby’s car because he had a reasonable suspicion that the car was in violation of that part of section 316.605(1), Florida Statutes, saying that:

[A]ll letters, numerals, printing, writing, and other

identification marks upon the plates regarding the word “Florida,” the registration decal, and alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.

1 See State v. Tullis, 970 So. 2d 912 (Fla. 5th DCA 2007).

2 We note that unlike State v. Baez, 894 So. 2d 115 (Fla. 2004), there was no evidence that the officer here had a reasonable basis and reasonable suspicion to investigate the motorist further after the stop.

The State suggests that the stop was valid, as it turns out, because “a man of reasonable caution” approaching the vehicle with its license plate “in an unlighted area as darkness approached” would “believe that the tag was not plainly visible and legible from 100 feet.” Thus it argues that while it may be true that the plate was within the locational requirements of the statute, it was probably not visible and legible 100 feet from the rear of the car, as required by the statute.

There are three flaws with this argument. First, the State presented no evidence at all that the plate was not visible from 100 feet. Second, the officer never testified that the visibility requirement was the reason he stopped the car. Finally, this is not the argument made by the State below.

Accordingly, we reverse the judgment and sentence and remand to the trial court for further action consistent with this opinion.

SAWAYA and JACOBUS, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

MICHAEL ROBERT EVERETT,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

Case No. 5D11-1418

Opinion filed October 28, 2011

Petition Alleging Ineffectiveness of Appellate Counsel, A Case of Original Jurisdiction.

Michael Robert Everett, Malone, pro se.

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

GRIFFIN, J.

Petitioner seeks another appeal, alleging ineffective assistance of appellate counsel. See Fla. R. App. P. 9.141(c). On April 17, 2008, Petitioner was found guilty of first-degree felony murder and burglary of a dwelling with a battery while armed with a deadly weapon. He was sentenced on the same day to life imprisonment for both the felony murder and the burglary convictions, both counts to run concurrently. A notice of appeal was filed and the judgment and sentence were affirmed. Everett v. State, 7 So. 3d 544 (Fla. 5th DCA 2009).

Petitioner now raises four claims of ineffective appellate counsel; only one of which is meritorious. Count II of the two-count indictment charged burglary of a dwelling, a second-degree felony. See § 810.02(1) & (3), Fla. Stat. (2010). The charge asserted that Petitioner unlawfully entered or remained in a dwelling with the intent to commit either an assault, battery, or murder therein. The burglary count of the indictment did not allege that Petitioner committed an assault or a battery, and did not allege that Petitioner was armed with a deadly weapon,1 although the evidence was ample to support such a charge, and the jury was instructed as to these aggravating circumstances. The jury found Petitioner guilty of burglary of a dwelling with a battery while armed with a dangerous weapon. Petitioner was sentenced to life imprisonment in accordance with the jury verdict for the first-degree felony punishable by life. Petitioner correctly contends that he could not be convicted of the first-degree burglary after being charged only with second-degree burglary.

A response to the petition was ordered, and the State does not represent that the indictment was ever amended. The State argues waiver because trial counsel did not raise the issue. The State also weakly argues that the indictment’s allegations encompassed the aggravating factors of the burglary statute or, in the alternatie, that there was merely a “scrivener’s error.”

It is fundamental error to convict a defendant of a felony that is not charged. See Keels v. State, 792 So. 2d 1249 (Fla. 2d DCA 2001); see also Brown v. State, 41 So. 3d 259 (Fla. 4th DCA 2010); Santin v. State, 977 So. 2d 781 (Fla. 5th DCA 2008); Zwick v. State, 730 So. 2d 759 (Fla. 5th DCA 1999). In this case, Petitioner was charged with a

1 See § 810.02(2)(a) & (b), Fla. Stat. (2010).

second-degree felony and then convicted and sentenced for a first-degree felony punishable by life, based on an erroneous verdict form and jury instructions. This was a fundamental error and appellate counsel was ineffective for failing to raise it.

We reverse the burglary conviction and vacate the sentence. We remand for correction of the judgment to classify the conviction as a second-degree felony and for resentencing.

PETITION GRANTED in part; DENIED in part; SENTENCE on Count II vacated and REMANDED.

SAWAYA and PALMER, JJ., concur.

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