Florida Criminal Law Opinions

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT July Term 2011

ROBIN EUSTACHE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D11-3636

[November 23, 2011]

PER CURIAM.

We affirm the trial court’s denial of appellant’s Rule 3.800(a) motion to correct illegal sentence. Pursuant to section 958.14, Florida Statutes, following appellant’s substantive violation of youthful offender probation, which he admitted, the court sentenced him to fifteen years in prison for robbery with a firearm. The sentence is within the statutory maximum for this offense, authorized by the youthful offender statute, and not illegal. See id. The court did not revoke appellant’s youthful offender status,1 so his reliance on Blacker v. State, 49 So. 3d 785 (Fla. 4th DCA 2010), is misplaced.

DAMOORGIAN, GERBER and CONNER, JJ., concur.

* * *

Appeal of order denying rule 3.800 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Stephen A. Rapp, Judge; L.T. Case No. 2005CF009576BXX.

Robin Eustache, Okeechobee, pro se. No response required for appellee.

1 “A defendant’s status as a youthful offender matters in part because it affects the defendant’s classification within the prison system and the programs and facilities to which the defendant can be assigned.” Blacker, 49 So. 3d at 787 n.2.

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 SANDERS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-3594

[November 23, 2011]

PER CURIAM.

Affirmed. Petitioner is cautioned that filing frivolous actions or appeals, including further appeals of double jeopardy challenges to his convictions as raised in a motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a), may result in sanctions, State v. Spencer, 751 So. 2d 47 (Fla. 1999), and/or referral to prison officials for consideration of disciplinary procedures, which may include loss of gain time. §§ 944.279(1), 944.28(2)(a), Fla. Stat.

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

* * *

Appeal of order denying rule 3.800 motion from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert A. Hawley, Judge; L.T. Case No. 311999CF001334A.

Jimmy Sanders, Raiford, 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

MILLARD SEABROOKS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-3363

[November 23, 2011]

PER CURIAM.

Almost eight years after a jury convicted appellant for carjacking, he now alleges that at some unspecified time he met another prisoner who happened to be in the area where the offense occurred in January 2002 and who remembered the incident. The prisoner witness alleges that the victim gave appellant her car and assumes that she did so in order for appellant to go into a dangerous neighborhood to buy her drugs.

Appellant filed this, his third Rule 3.850 motion, alleging newly discovered evidence and attaching an affidavit from the prisoner. Fla. R. Crim. P. 3.850(b)(1). The State’s response argued that the motion should be denied without prejudice because it did not allege when appellant learned the information and failed to establish that, with due diligence, the claim could not have been discovered and raised in a timely motion.

The court denied the motion pursuant to the State’s response. Appellant moved for rehearing arguing that he should be granted an opportunity to amend pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007). The court denied rehearing. On appeal, appellant argues that the court erred in denying his motion without providing an opportunity to amend.

We conclude that the trial court denied the motion pursuant to the State’s response and without prejudice for appellant to refile a sufficient motion. Within sixty (60) days of this opinion becoming final, appellant may file an amended motion in the circuit court raising this claim.

Postconviction movants and witnesses are again cautioned that bringing false information before the court may b e punished by contempt proceedings, a perjury prosecution, or prison disciplinary action. Oquendo v. State, 2 So. 3d 1001, 1006-07 (Fla. 4th DCA 2008).

Affirmed without prejudice to refile.

GROSS, DAMOORGIAN and CONNER, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul Backman, Judge; L.T. Case No. 02-203 CF10A.

Millard Seabrooks, Punta Gorda, 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

WILLIE J. COVINGTON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2410

[November 23, 2011]

GROSS, J.

In an incident that occurred on March 13, 2009, Willie Covington was charged with grand theft arising from shoplifting of groceries from Publix. There was a surveillance video of the theft, but it was not introduced at trial because Publix recorded over it in May, 2009. During closing argument, Covington contended that the absence of the video was a lack of evidence creating a reasonable doubt. During the state’s closing argument, the prosecutor responded to this contention by stating:

And then a huge part about this video. Gosh, video that existed, it was a surveillance, State didn’t show it to you. Well, you know what? They could have got it too. They could have shown it to you. They had just as much of an opportunity to go and ask for that video as we did.

The prosecutor’s closing argument was improper for two reasons. First, it was factually inaccurate. Covington was arrested on March 13, 2009 and sought discovery in March. The state filed an information on April 7 and did not disclose the existence of any surveillance evidence until September, 2009. Thus, it does not appear that appellant was aware of the surveillance video during the 60 day period when it might have been obtained from Publix. Second, the argument improperly shifted the burden of proof to Covington. “[T]he state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe the

defendant carried the burden of introducing evidence.”1 Hayes v. State, 660 So. 2d 257, 265 (Fla. 1995) (quoting Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991)). The prosecutor compounded the error by implying that video would have corroborated the state’s case had it been shown. See Williams v. State, 548 So. 2d 898, 899-900 (Fla. 4th DCA 1989).

We have reviewed the entire record and do not find the error to be harmless. On another matter, because the matter was not preserved by a specific objection, we do not reach the best evidence rule issue. See §§ 90.951 – 90.954, Fla. Stat. (2009).

Reversed and remanded for a new trial. POLEN and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael Usan, Judge; L.T. Case No. 09-4852CF10A.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Pamela J o Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

1The narrow exception to the general rule, where the defendant has asserted a defense such as alibi or self defense, does not apply in this case. See Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991); Lawyer v. State, 627 So. 2d 564, 567 (Fla. 4th DCA 1993).

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

STATE OF FLORIDA,

Appellant,

v.

LAWRENCE B. HOUGHTON, JR.,

Appellee.

No. 4D10-2921

[November 23, 2011]

PER CURIAM.

Affirmed. See Mullis v. State, 36 Fla. L. Weekly D21013 (Fla. 2d DCA Sept. 9, 2011); State v. Sun, 36 Fla. L. Weekly D1149 (Fla. 4th DCA June 1, 2011), reh’g denied (July 7, 2011)

POLEN, GROSS and CONNER, JJ., concur.

* * *

Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John J. Hoy, Judge; L.T. Case No. 2009CF010685AMB.

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

Barbara J. Scheffer, Palm Beach Gardens, 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

RUDY SUNDERLIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2513

[November 23, 2011]

PER CURIAM.

Affirmed. See Johnson v. State, 974 So. 2d 1152 (Fla. 3d DCA 2008). STEVENSON, HAZOURI and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No. 01-11425 CF10A.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Pamela J o Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

ATRAYO GIGGER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2407

[November 23, 2011]

PER CURIAM.

Affirmed. See Meshell v. State, 2 So 3d 132 (Fla. 2009). POLEN, GROSS, and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 08- 19499CF10A.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

TYRONE FLEMING,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-972

[November 23, 2011]

ON MOTION FOR REHEARING EN BANC

POLEN, J.

Having previously en banced this case, in order to recede from our prior opinion in Marrisette v. State, 780 So. 2d 1020 (Fla. 4th DCA 2001), we now consider en banc Fleming’s issue as to the application of Shelton v. Secretary, Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011). Considering the matter en banc, we deny rehearing for the reasons set forth below.

In his motion for rehearing en banc, Fleming raised for the first time that the statute under which he was convicted, section 893.13, Florida Statutes, is facially unconstitutional based on the analysis set forth in Shelton. In Shelton, the district judge found section 893.13 to be unconstitutional because it removed the element of mens rea from drug possession laws, creating a strict liability offense. Id. at *4-*5. The Shelton court held that in order for such an offense to be constitutional, the defendant cannot be subjected to harsh penalties, substantial social stigma, or regulation of inherently innocent conduct, and that section 893.13 does all three. Id. at *7-*12.

This court is aware that Shelton issues are now being raised by defendants at various stages of the appellate process. If the Shelton issue is raised before a decision on the merits, even if it was not raised at the trial court level, this court will consider the issue. However, if the Shelton issue is not raised prior to a decision on the merits, this court will not consider the issue on a motion for rehearing or motion for

rehearing en banc. Here, this court issued an opinion as to the merits of Fleming’s case in Fleming v. State, No. 4D10-972, 2011 WL 3477056 (Fla. 4th DCA Aug. 10, 2011). Subsequently, Fleming filed a motion for rehearing en banc, raising for the first time an issue as to the constitutionality of section 893.13, Florida Statutes, under the analysis set forth in Shelton. Because the issue was not raised prior to a decision on the merits, this court will not take it into consideration. As such, we deny Fleming’s motion for rehearing en banc.

Rehearing Denied.

MAY, C.J., WARNER, STEVENSON, GROSS, TAYLOR, HAZOURI, DAMOORGIAN, CIKLIN, GERBER, LEVINE and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Kenneth L. Gillespie, Judge; L.T. Case No. 09-20196 CF10A.

Carey Haughwout, Public Defender, and Susan D. Cline, 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.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT July Term 2011

JEAN E. REEVES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1654

[November 23, 2011]

PER CURIAM.

Jean E. Reeves (Defendant) appeals an order summarily denying her rule 3.800(a) motion to correct illegal sentence. We affirm.

First, a challenge to the voluntariness of the plea is not cognizable in a rule 3.800(a) motion. Second, a habitual felony offender sentence may b e imposed, consecutive to a guidelines sentence, without violating Hale.1 Gipson v. State, 616 So. 2d 992 (Fla. 1993) (approving Second District’s decision affirming imposition of two concurrent guidelines sentences, to b e served consecutively to defendant’s several HFO sentences); Thomas v. State, 831 So. 2d 762 (Fla. 4th DCA 2002) (noting that consecutive sentencing on two counts was not improper where defendant was sentenced as habitual offender on only one of them); Lafleur v. State, 661 So. 2d 346, 349 (Fla. 3d DCA 1995) (vacating habitual sentences for life felonies, which did not then qualify for habitual sentencing, and directing trial court on remand to impose guidelines sentences for them, which properly could b e imposed consecutively to the remaining two concurrent habitual sentences).

As Defendant repeatedly has raised these same or similar grounds, all which have been denied, and the denials affirmed on appeal, we warn

1 Hale v. State, 630 So. 2d 521 (Fla. 1993) (holding habitual offender statute did not authorize imposition of consecutive habitual felony offender sentences for multiple crimes committed during single criminal episode), cert. denied, 513 U.S. 909 (1994).

her that filing frivolous actions or appeals may result in sanctions, State v. Spencer, 751 So. 2d 47 (Fla. 1999), and/or referral to prison officials for consideration of disciplinary procedures which may include loss of gain time. § 944.279(1), Fla. Stat. (2011); § 944.28(2)(a), Fla. Stat. (2011).

Affirmed; Appellant cautioned against frivolous filing. MAY, C.J., TAYLOR and LEVINE, 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. 1992CF005295AXX.

Jean E. Reeves, Ocala, 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

JAROD THEOPHILE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-5328

[ November 23, 2011 ]

ON MOTION FOR CLARIFICATION AND/OR REHEARING

PER CURIAM.

We grant appellant’s Motion for Clarification of the opinion issued on September 21, 2011. We write to clarify that the relief on remand should include recalculation of the scoresheet o n appellant’s remaining conviction for possession of a concealed firearm. See Vroom v. State, 48 So. 3d 82, 84 (Fla. 2d DCA 2010); Gorham v. State, 968 So. 2d 717, 718 (Fla. 4th DCA 2007). Accordingly, we add the following sentence to the end of the majority opinion: “We reverse and remand with directions to vacate the defendant’s conviction for robbery with a firearm, recalculate the scoresheet to reflect the absence of this primary offense, and resentence the defendant on the remaining charge of possession of a concealed firearm using a corrected scoresheet.”

TAYLOR and GERBER, JJ., and PEGG, ROBERT L., Associate Judge, concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; K a r e n M. Miller, Judge; L.T. Case No. 2009CF006404AMB.

Philip J. Massa, Regional Counsel and Randall Berman, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.

Pamela J o Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

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