Florida Criminal Law Opinions

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

HERMAN P. MAESTAS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-5349

[November 30, 2011]

POLEN, J.

Herman Maestas appeals his conviction and sentence for possession of a controlled substance in violation of section 893.13(6)(a), Florida Statutes (2010). The trial court sentenced him to 27.3 months in prison. On appeal, he argues (1) the trial court erred in sustaining the State’s objection based on improper impeachment; (2) the trial court erroneously imposed various costs and fees; and (3) the statute under which he was convicted, section 893.13, is facially unconstitutional. As to the first issue, we find that the record on appeal does not demonstrate reversible error and affirm without further comment. We find merit in Maestas’ second argument but reject his constitutional challenge to section 893.13.

After his conviction, the trial court imposed a $100 cost of prosecution fee, a $400 public defender fee, and an additional $25 fee, without orally pronouncing them in open court.1 We hold that the trial

1 Maestas filed a motion to correct sentencing error, pursuant to rule 3.800, Florida Rules of Criminal Procedure, thus preserving this issue for appeal. See Ortiz v. State, 884 So. 2d 77, 78 (Fla. 2d DCA 2004) (holding that appellant preserved this issue by filing a rule 3.800(b) motion). However, the trial court entered its order, denying Maestas’ rule 3.800 motion, but lowering the additional $25 cost to $15, more than sixty days after Maestas filed his motion. Pursuant to rule 3.800(b)(2), the motion is deemed denied and the subsequent order on the motion is a nullity. Sessions v. State, 907 So. 2d 572, 573 (Fla. 1st DCA 2005) (citing Campbell v. State, 789 So. 2d 1213 (Fla. 1st DCA 2001)); Wilson v. State, 853 So. 2d 1119 (Fla. 4th DCA 2003).

court correctly imposed the $100 fee for costs of prosecution, as section 938.27(8), Florida Statutes (2010), mandates that such costs shall be set at no less than $100 per case when a felony offense is charged, as is the case here. However, we agree with Maestas that the $400 public defender fee was erroneously imposed because the trial court failed to make factual findings warranting the imposition of the additional $300. § 938.29, Fla. Stat. (2010); Houle v. State, 33 So. 3d 822, 823 (Fla. 4th DCA 2010). We therefore remand to the trial court to reduce the public defender fee to the statutorily required $100 or to hold a hearing with proper notice to Maestas, allowing him the opportunity to object to the additional $300 imposed. See Houle, 33 So. 3d at 823. Regarding the additional fee of $25, Broward County Ordinance, section 21-16.2, pursuant to section 938.13, Florida Statutes, mandates that an additional cost of $15 shall be imposed when any person is found guilty of any misdemeanor involving the unlawful use of drugs or alcohol. Although the trial court lowered this fee to $15 in its order, the order was untimely rendered, and thus a nullity. We therefore remand for entry of a new order consistent with this opinion.

Maestas next argues for the first time on appeal2 that section 893.13 is facially unconstitutional for the reasons expressed in Shelton v. Secretary, Department of Corrections, No. 6:07-cv-839-ORL-35, 2011 WL 3236040 (M.D. Fla. July 27, 2011). Maestas further argues that if section 893.13 is not unconstitutional, it is a strict liability crime, with a maximum sentence of two years’ imprisonment. We disagree and uphold the constitutionality of section 893.13 and conclude that section 893.101 does not create a strict liability crime. We find the reasoning of Shelton unpersuasive and decline to adopt its holding.

In Shelton, a judge of the United States District Court for the Middle District of Florida found section 893.13 to be unconstitutional on substantive due process grounds. Shelton, 2011 WL 3236040 at *4-*5. The opinion concluded that section 893.101 removed all mens rea as an element from section 893.13, thereby creating a strict liability offense. Id. As a strict liability offense, the court declared section 893.13 unconstitutional because its penalties are too severe. Id. at *7-*12.

We first note that this court has already held that section 893.101, Florida Statutes, is constitutional. Wright v. State, 920 So. 2d 21 (Fla. 4th DCA 2005). Moreover, decisions of lower federal courts, including

2 The facial constitutionality of a statute can be raised for the first time on direct appeal. Jean v. State, 764 So. 2d 605, 606 (Fla. 4th DCA 1999); Trushin v. State, 425 So. 2d 1126, 1129 (Fla. 1982).

rulings that a state statute violates the U.S. Constitution, are not binding on state courts; rather, they are persuasive, if well reasoned. State v. Dwyer, 332 So. 2d 333, 334-35 (Fla. 1976); Bradshaw v. State, 286 So. 2d 4, 6-7 (Fla. 1973), cert. denied, 417 U.S. 919 (1974). We find Shelton unpersuasive, as the decision is based on the faulty premise that section 893.101 removed all mens rea from section 893.13 offenses, such that a defendant is strictly liable for any unknowing possession or delivery. In our view, section 893.101 did not remove the guilty knowledge element from these offenses, thereby converting section 893.13 offenses into strict liability crimes. Instead, it merely abrogated the additional “knowledge of illicit nature” element, added by the supreme court in Chicone v. State, 684 So. 2d 736 (Fla. 1996). Section 893.13 remains constitutional.

Courts are obligated to construe statutes in a manner which avoids an unconstitutional interpretation. State v. Giorgetti, 868 So. 2d 512, 518 (Fla. 2004). Interpretations of statutes as not requiring a mens rea element are disfavored, and absent clear legislative intent to dispense with scienter, courts will assume guilty knowledge is required and will read a guilty knowledge component into a statute that is silent as to mens rea. Id. at 515-20. Although knowledge of presence is not expressly required by the text of section 893.13, such knowledge has always been required in drug possession cases. Id.; State v. Oxx, 417 So. 2d 287, 290 (Fla. 5th DCA 1982). Section 893.13 is no exception. Indeed, the standard jury instruction for possession of a controlled substance requires the jury find that “([d]efendant) had knowledge of the presence of the substance.” Fla. Std. Jury Instr. (Crim.) 25.2.

In Chicone, the court recognized that “guilty knowledge” is required for a conviction under section 893.13 and that knowledge of presence must be established in a drug possession cases. Chicone, 684 So. 2d at 740-41. However, Chicone went further, creating an additional scienter requirement: Knowledge of the “illicit nature” of the substance. Id. at 744. The legislature superseded this fourth element with the enactment of section 893.101. Miller v. State, 35 So. 3d 162, 163 (Fla. 4th DCA 2010). See also Garcia v. State, 901 So. 2d 788, 791-93 (Fla. 2005) (recognizing that “guilty knowledge” includes knowledge of presence and is an element of the offense of possession that must be proven beyond a reasonable doubt).

Lack of knowledge of the illicit nature of a substance is distinct from lack of knowledge of the presence of the substance. See Barrientos v. State, 1 So. 3d 1209, 1217 (Fla. 2d DCA 2009); De La Cruz v. State, 884 So. 2d 349, 351 n.1 (Fla. 2d DCA 2004). A defendant’s claim that he or

she did not know that white powder was concealed in an item possessed is different from the claim that he or she did not know that the concealed powder was an illegal drug.

In response to the holdings in Chicone and Scott v. State, 808 So. 2d 166 (Fla. 2002), the legislature enacted section 893.101, which provides:

(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So. 2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

Id. (emphasis added). “The statute does two things: it makes possession of a controlled substance a general intent crime, no longer requiring the state to prove that a violator be aware that the contraband is illegal, and, second, it allows a defendant to assert lack of knowledge as an affirmative defense.” Wright, 920 So. 2d at 24 (emphasis added). The statute does not indicate any intent to do away with all guilty knowledge or to remove knowledge of presence as an element. As such, “[a] defendant charged under section 893.13 can concede all the elements of the offense, i.e., possession of a specific substance and knowledge of the presence of the substance, and still be able to assert the defense that he did not know of the illicit nature of the specific substance.” Burnette v. State, 901 So. 2d 925, 927 (Fla. 2d DCA 2005) (emphasis added).

Section 893.101 recognizes that “actual or constructive possession” must be found for the presumption to apply. See also Fla. Std. Jury

Instr. (Crim.) 25.7 (“[Y]ou are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance”) (emphasis added). The State must prove knowledge of presence in order to establish actual or constructive possession.3 Thus, the permissive presumption that a defendant knew the illicit nature of the substance does not apply if a defendant is unaware of the presence of the substance.

Section 893.13 offenses are general intent crimes and, although not expressly stated in the statute, require that the defendant voluntarily commit the proscribed act. See, e.g., Linehan v. State, 442 So. 2d 244, 246-48 (Fla. 2d DCA 1983) (describing the distinction between general and specific intent crimes). Contrary to the holding of Shelton, the statute does not punish strictly an unknowing possession or delivery.

Finally, the existence of the affirmative defense set out in section 893.101 undermines the notion that the legislature has created a strict liability crime. To this point, we agree with the reasoning set forth by the First District in its recent opinion of Flagg v. State, No. 1D11-2372, 2011 WL 4865137 (Fla. 1st DCA Oct. 14, 2011):

[Shelton] misperceives the operation of the affirmative defense in section 893.101. The statute does not, as Shelton implied, require the defendant to establish his innocence by proving a lack of knowledge, see Wright, 920 So. 2d at 25 (explaining that section 893.101 “does not require the defendant to prove or disprove knowledge”); rather, the statute provides that if the defense is raised, the state has the burden to overcome the defense by proving beyond a reasonable doubt that the defendant knew of the illicit nature of the drugs. Id.; see also Fla. Std. Jury Instr. (Crim.) 25.7 (explaining that the jury should find the defendant not guilty if they “have reasonable doubt on the question of

3 The State is entitled to a jury instruction allowing a jury to infer knowledge of presence from actual or exclusive constructive possession. See State v. Williamson, 813 So. 2d 61, 64-65 (Fla. 2002); State v. Medlin, 273 So. 2d 394 (Fla. 1973). This inference allows the State to make a prima facie case of knowledge of presence without direct proof but does not eliminate knowledge of presence as an element that the jury must find to convict. Permissive inferences, which are also known as permissive presumptions, have repeatedly been upheld and ruled constitutional because they do not shift the burden of proof. See County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 156-57 (1979); Walker v. State, 896 So. 2d 712, 715-20 (Fla. 2005).

whether (defendant) knew of the illicit nature of the controlled substance”). Furthermore, because lack of knowledge is not a defense to a true strict liability crime, the availability of the affirmative defense in section 893.101 undermines the essential premise in Shelton that the offenses in section 893.13 are strict liability crimes that may not be constitutionally punished as felonies.

Id. at *2 (footnote omitted).

We hold that section 893.101 did not remove scienter from section 893.13 offenses and did not create an unconstitutional strict liability crime.

Affirmed in part, and Reversed and Remanded in part. GROSS and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale C. Cohen, Judge; L.T. Case No. 08-14253 CF10A.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

JOSE RODRIGUEZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2016

[November 30, 2011]

PER CURIAM.

Affirmed. The January 2010 postconviction motion was untimely. State v. Green, 944 So. 2d 208 (Fla. 2006). Padilla v. Kentucky, 130 S.Ct. 1473 (2010), does not apply retroactively to this 2004 plea. Hernandez v. State, 61 So. 3d 1144 (Fla. 3d DCA 2011).

MAY, C.J., GROSS and LEVINE, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Stephen Rapp, Judge; L.T. Case No. 2004CF005581AXX.

Jose Rodriguez, Miami, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

ORLANDO BARRIOS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1384

[November 30, 2011]

LEVINE, J.

Appellant was convicted of attempting to obtain a mortgage by false representation, grand theft in the first degree, and providing false information to defraud a financial institution. We find that the trial court erred in reducing the count of obtaining a mortgage by false representation to an attempt, instead of granting a judgment of acquittal. We also find that the trial court erred in not granting a judgment of acquittal as to grand theft in the first degree. Finally, as to providing false information to defraud a financial institution, we find that the trial court correctly denied the judgment of acquittal, and we affirm appellant’s conviction for that count.

Appellant obtained a $315,000 mortgage in order to purchase land and build a home. Appellant approached his girlfriend’s cousin, a mortgage broker, in order to obtain financing. Appellant filled out a uniform residential loan application and listed his gross monthly income as $8,900 per month. The loan application process required appellant to fill out a second loan application, where appellant again listed his gross income as $8,900 per month. At closing, appellant listed his income as $8,900 per month a third time. The state’s theory of prosecution was that appellant falsified his monthly income by inflating it in order to qualify for approval for the mortgage. The state presented evidence that appellant’s wages in 2003, 2004, and 2005 were less than the income reported by appellant on his mortgage application. The state contended that the evidence of the incomes presented in appellant’s income tax returns proved that appellant submitted false information on the

mortgage application.1

At trial, appellant moved for judgment of acquittal on all three counts. As to the count of obtaining a mortgage by false representation, after the state conceded that there was only circumstantial evidence of reliance by the bank on appellant’s false information in issuing the mortgage, the trial court granted a judgment of acquittal and reduced that count to an attempt.2 The trial court denied the other motions for judgment of acquittal, and appellant was convicted of the three counts. This appeal ensued.

A motion for judgment of acquittal is reviewed under a de novo standard of review. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.” Id. However, “[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So. 2d 187, 188 (Fla. 1989).

1 Appellant’s tax preparer testified that appellant’s wages in 2003 were $21,068. In 2004, appellant’s adjusted gross income was $1,555, with total gross receipts of about $94,000. Another tax preparer testified that appellant’s adjusted gross income in 2005 was negative $4,273. Appellant had gross receipts of $83,080 that year. None of the evidence admitted demonstrated income to corroborate the $8,900 per month income listed by appellant.

2 By conceding that there was only circumstantial evidence, the state appeared to believe that it could proceed only with an attempt of the substantive crime. As the record demonstrates:

[THE STATE]: I think I’m going to concede on—on—well, I will—I will concede that we—we the only evidence that we have of—of the fact that the victim was deceived would be circumstantial evidence. It would be circumstantial evidence there. And that is—

. . . .

THE COURT: Okay. All right. . . . Well, what happens with count one then, do I reduce it to attempt?

[THE STATE]: Judge, under—under the Adams case, yes, that’s what—essentially what they say cause we—the Adams case really—for—for a different reason goes to that same—that same reasoning that there’s an attempt.

. . . .

THE COURT: Okay. I’ll grant the JOA on count one reducing it to an attempt . . . .

Appellant was convicted of attempting to obtain a mortgage by false representation. The statute specifically provides:

Any person who, with intent to defraud, obtains any mortgage, mortgage note, promissory note or other instrument evidencing a debt from any person or obtains the signature of any person to any mortgage, mortgage note, promissory note or other instrument evidencing a debt by color or aid of fraudulent or false representation or pretenses, or obtains the signature of any person to a mortgage, mortgage note, promissory note, or other instrument evidencing a debt, the false making whereof would be punishable as forgery, shall be guilty of a felony of the third degree . . . .

§ 817.54, Fla. Stat. (2009).

Further, to prove this crime, there must be evidence of the victim’s reliance on the defendant’s misrepresentation. Adams v. State, 650 So. 2d 1039, 1041 (Fla. 3d DCA 1995). Section 817.54 “criminalizes a specific form of false pretense crime. Accordingly, the victim’s reliance on the false or misrepresented information is an essential element of the offense.” Id. (citations omitted). In this case, the alleged fraud was completed. The forms indicating appellant’s monthly income were filled out and submitted for consideration of a mortgage. The state, however, was unable to introduce evidence that the bank issuing the mortgage specifically relied on the forms filled out by appellant certifying his monthly income. A conviction for mortgage fraud will be vacated where there is no proof of reliance on the misrepresentation by the victim. See Grant v. State, 43 So. 3d 864, 868-69 (Fla. 5th DCA 2010); Pizzo v. State, 910 So. 2d 287, 293 (Fla. 2d DCA 2005).

As a way to circumvent this problem of proof, the state sought to proceed on this count as an attempt. The state asserted that appellant’s conduct amounted to an attempt without the necessity of proving reliance.3 We find that the trial court erred in allowing the case to proceed as an attempt and not granting a judgment of acquittal.

3 The trial court relied on Adams to permit the state to proceed on an attempt to obtain a mortgage by false representation charge. We distinguish Adams from the case at bar. In Adams, the defendant’s false representations were discovered prior to the approval of the loan. 650 So. 2d at 1040. Thus, the defendant failed to complete the crime. The loan was never completed and the misrepresentation never relied upon.

“Criminal attempt requires three elements: the intent to commit a crime, an overt act towards its commission, and failure to successfully complete the crime.” Bist v. State, 35 So. 3d 936, 941 (Fla. 5th DCA 2010). In the present case, there was no evidence of a failure to complete the crime. In fact, there was evidence that the crime was completed—the submission of a misrepresentation in order to obtain a mortgage. The problem was proof of reliance, not completion of a crime. We, thus, reverse and remand for the trial court to grant a judgment of acquittal on this charge.

As to the charge of grand theft in the first degree, we find that the trial court also erred in not granting a judgment of acquittal. We find that the state did not provide evidence that appellant intended to deprive the victim of its property at the time of the taking. The state based its argument—that appellant never intended to pay back the monies borrowed from the bank—on the evidence that appellant misrepresented the amount of money he made per month in order to qualify for the mortgage. However, this was insufficient to support a conviction for grand theft. See Vroom v. State, 48 So. 3d 82, 84 (Fla. 2d DCA 2010) (finding the evidence insufficient to support grand theft conviction where it showed only that the defendant’s “financial condition at the time of the requested repayment was not consistent with that represented in the financial disclosure statement”).

Finally, as to the count of providing false information to defraud a financial institution, we find that the trial court did not err in denying appellant’s motion for judgment of acquittal. We find that there was competent, substantial evidence for the jury to find that appellant defrauded the bank by giving false information about his monthly income when he claimed three times that he made $8,900 per month. See United States v. Honarvar, 477 F.3d 999, 1001 (8th Cir. 2007) (“The jury could decide for itself which evidence it found more persuasive and make a sound determination regarding the falsity of [defendant’s] statements” by comparing representations of income on credit card applications with income tax returns).

In summary, we find that the trial court erred in not granting judgments of acquittal for grand theft in the first degree and obtaining a mortgage by false representation. As such, we reverse and remand those convictions, and we affirm the conviction for providing false information to defraud a financial institution.

Affirmed in part, reversed in part, and remanded. TAYLOR and HAZOURI, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge; L.T. Case No. 562008CF000195A.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

JESSIE BRYANT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2609

[November 30, 2011]

PER CURIAM.

Affirmed. See State v. Butler, 655 So. 2d 1123 (Fla. 1995). TAYLOR, DAMOORGIAN and GERBER, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562007CF004208A.

Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

JOHNNY RICARDO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2950

[November 30, 2011]

PER CURIAM.

Affirmed. See Wisenbaugh v. State, 974 So. 2d 591 (Fla. 4th DCA 2008); Ackermann v. State, 962 So. 2d 407, 408 (Fla. 1st DCA 2007).

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

* * *

Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul Backman, Judge; L.T. Case No. 07-4675 CF10A.

Johnny Ricardo, Bonifay, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

JIMMY J. SCOTT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2990

[November 30, 2011]

PER CURIAM.

Appellant, Jimmy J. Scott, appeals the trial court’s denial of his motion for postconviction DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. Appellant alleges that DNA testing could establish that he was not present at the scene of the crime. However, this assertion directly contradicts Appellant’s own testimony at trial in which he acknowledged that he was present at the scene and that he fired his gun in self defense. Identification was not a genuinely disputed issue in this case. Fla. R. Crim. P. 3.853(b)(4). Accordingly, we find no merit to Appellant’s allegation and affirm.

Appellant is cautioned that any further abusive, repetitive, malicious, and/or frivolous filing will result in sanctions, such as a ban on him filing any pro se papers in this court or referral to prison officials for disciplinary procedures. See State v. Spencer, 751 So. 2d 47 (Fla. 1999); § 944.279(1), Fla. Stat. (2009); § 944.28(2)(a), Fla. Stat. (2009).

Affirmed.

POLEN, DAMOORGIAN and CIKLIN, JJ., concur.

* * *

Appeal of order denying rule 3.853 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey Levenson, Judge; L.T. Case No. 86-12809 CF10A.

Jimmy J. Scott, Milton, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT July Term 2011

JULIA ROLLINS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-3229

[November 30, 2011]

PER CURIAM.

The denial of appellant’s rule 3.800(a) motion is affirmed. The sentencing order does not state that she is ineligible for parole and her life sentence is not illegal. § 775.082(1), Fla. Stat. (1971); see also Wilkinson v. State, 889 So. 2d 110 (Fla. 2d DCA 2004).

However, the trial court’s direction to the clerk not to accept further filings from appellant is reversed. Appellant was not given notice or an opportunity to be heard pursuant to State v. Spencer, 751 So. 2d 47 (Fla. 1999), before imposing this sanction.

Affirmed in part; Reversed in part.

WARNER, POLEN and GROSS, JJ., concur.

* * *

Appeal of order denying rule 3.800 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Stephen Rapp, Judge; L.T. Case No. 1972CF122AXX.

Julia Rollins, Ocala, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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