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

DARNELL M. GOINGS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-5229

Opinion filed November 22, 2011.

An appeal from the Circuit Court for Franklin County. James C. Hankinson, Judge.

Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Jay Kubica, Assistant Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, C.J.

Darnell Goings appeals his conviction and sentence for “sexual battery by familial or custodial authority,” in violation of section 794.011(8)(b), Florida Statutes (1993). He argues here—as he did in his unsuccessful motion to dismiss below—that the statute of limitations should have precluded his further prosecution. Unpersuaded, we affirm.

He does not argue1 —and has no basis for any argument—that the information was not filed in timely fashion. See § 775.15(2)(a), Fla. Stat. (1993) (requiring that the prosecution be commenced within four years of commission of the offense). On March 11, 1996, a warrant issued for his arrest. Three days later, the state filed formal charges: An information accused Mr. Goings of committing sexual battery between April 1, 1995 and May 30, 1995, on a sixteen-year-old girl held in the Franklin County jail, while he was working there for the Franklin County Sheriff’s office.

In his motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190, he contended that the delay in executing the arrest warrant or capias was unreasonable: The arrest warrant or capias was finally executed on November 30, 2009, some fifteen years after charges were laid. The statute in force at the time of the offense 2 defined commencement of prosecution as filing the information or indictment, but with a proviso:

1 Appellant attaches no significance to the fact that the arrest warrant issued before the information was filed, arguing only that the “state failed to establish that it conducted a diligent search to locate appellant,” specifically:

The state conducted no follow-up investigation to locate

appellant in 2002 when it discovered that appellant had

been living in the Washington D.C. area. Appellant’s

arrest some seven years later should be deemed outside

the statute of limitations.

Summary of the Argument in Appellant’s Initial Brief, p. 5.

2 “[T]he limitations period in effect at the time of the incident giving rise to the criminal charges controls the time within which prosecution must be begun.”

A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered.

§ 775.15(5), Fla. Stat. (1993) (emphasis supplied). Attributing the delay in executing the capias to Mr. Goings’s continuous absence from Florida, the trial court denied the motion. Mr. Goings then pleaded no contest, reserving the right to appeal denial of his motion to dismiss.3 The only argument he makes on appeal is that the motion should have been granted because “the state failed to conduct a diligent search to locate” him. Initial Brief, p. 11.

Perez v. State, 545 So. 2d 1357, 1358 (Fla. 1989). See also Bryson v. State, 42 So. 3d 852, 854 (Fla. 1st DCA 2010) (“Generally, the controlling statute of limitations is that which is in effect when a crime is committed.” (citing State ex rel. Manucy v. Wadsworth, 293 So. 2d 345, 347 (Fla. 1974))); Torgerson v. State, 964 So. 2d 178, 179 (Fla. 4th DCA 2007); Rock v. State, 800 So. 2d 298, 299 (Fla. 3d DCA 2001); Mercer v. State, 654 So. 2d 1221, 1221 (Fla. 5th DCA 1995) (“The limitations period in effect at the time of the action giving rise to the criminal charges controls the time in which prosecution must be initiated.” (citing Rubin v. State, 390 So. 2d 322 (Fla. 1980))); Heath v. State, 532 So. 2d 9, 10 (Fla. 1st DCA 1988) (“[I]t is firmly established law that the statutes in effect at the time of commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed.”).

3 See Brown v. State, 376 So. 2d 382, 384 (Fla. 1979); State v. Ashby, 245 So. 2d 225, 228 (Fla. 1971); Vaughn v. State, 711 So. 2d 64, 65 (Fla. 1st DCA 1998); Wright v. State, 547 So. 2d 258, 259 (Fla. 1st DCA 1989); Howard v. State, 515 So. 2d 346, 348 (Fla. 1st DCA 1987); Morgan v. State, 486 So. 2d 1356, 1357 (Fla. 1st DCA 1986).

At issue is whether the arrest warrant or capias was served on Mr. Goings “without unreasonable delay.” § 775.15(5), Fla. Stat. (1993). At the hearing on the motion, an investigator with the State Attorney’s Office testified that once he received certain DNA test results, he set out to arrest Mr. Goings. He first spoke to Mr. Goings’s attorney, but learned nothing about his whereabouts from the attorney. He then visited Mr. Goings’s last known employer, and obtained a forwarding address for him in Port St. Joe. When he went to the Port St. Joe address, he was told that Mr. Goings had “gone up north.” Mr. Goings himself testified that he moved to the Washington, D.C. area in January of 1996, and lived there until he was arrested on these charges.

On cross-examination, the investigator testified that he did not personally enter a copy of appellant’s arrest warrant into a state or national database, but that he understood that the Sheriff’s Office had. He did testify that later, in August of 2002, he “ran” Mr. Goings’s name in a computer program, one that did not exist in 1996, and found several addresses for him, from 1996 forward, including two in Ohio, two in Maryland, and several in Washington, D.C. A subsequent search in criminal and civil court databases revealed that Mr. Goings had received traffic tickets in Maryland in May of 1996 and June of 2006, and that somebody had filed a civil action against him in Maryland in 2000. The investigator testified that he

was not aware, at the time, that Mr. Goings had been arrested in 1996 and in 2002.4

Under section 775.15(5), the state had the burden to show an “inability to locate the defendant after diligent search or the defendant’s absence from the state.” § 775.15(5), Fla. Stat. (1993) (emphasis supplied). See Kidd v. State, 985 So. 2d 1180, 1181 (Fla. 4th DCA 2008) (“The state has the burden of proving that prosecution is not barred by the statute of limitations. Cunnell v. State, 920 So. 2d 810 (Fla. 2d DCA 2006); Berntson v. State, 804 So. 2d 406 (Fla. 4th DCA 2001); Neal v. State, 697 So. 2d 903 (Fla. 2d DCA 1997); State v. Picklesimer, 606 So. 2d 473 (Fla. 4th DCA 1992).”); Brown v. State, 674 So. 2d 738, 740 (Fla. 2d DCA 1995). Mr. Goings argues that the state did not conduct a diligent search, in part because the state did not follow up on information it learned from the computer searches performed in 2002 and thereafter. But the state showed it searched diligently until after Mr. Goings left the state, and the parties agree that he was continuously absent from the state from 1996 until he was arrested in 2009.

Section 775.15(5) does not require any other showing. The record amply supports the learned trial judge’s determination that execution of the capias did not entail unreasonable delay within the meaning of the statute. Cf. Fleming v. State, 524 So. 2d 1146, 1147 (Fla. 1st DCA 1988) (trial court erred in denying Fleming’s

4 Mr. Goings also testified that between March and August of 1996, he was arrested and placed on probation in Virginia for two years.

motion to dismiss on the ground that the statute of limitations had expired when “the state offered no evidence to explain the four-year delay in executing the capias”).

We are not concerned here with the judicially created exception (since apparently abolished by the Legislature)5 available to a defendant who proves his absence from the state did not actually hinder the prosecution because Florida authorities knew the accused was in custody elsewhere, and amenable to extradition.6 In the present case, although Mr. Goings testified that he was in custody out of state in 1996 and again in 2002, he did not establish that anybody in Florida was aware that he was in custody, until long after the fact. The state’s showing that Mr. Goings left the state soon after the arrest warrant or capias issued

5 In 1997, the legislature amended section 775.15(5), Florida Statutes, to add: “The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.” Ch. 97-90, § 1, at 514, Laws of Fla.

6 In State v. Miller, 581 So. 2d 641, 642 (Fla. 2d DCA 1991), the state contended that delay in executing a capias on Miller was not unreasonable because it established that he was out of the state in Indiana for at least a portion of the time. The Second District found that assuming the state had met its burden, Miller met his burden in turn by showing that at the time he left the state, there were no charges against him, and that, as soon as Indiana officials notified him of the Florida charges against him, he waived extradition but Florida refused to go and pick him up. Id. Thus, the court found, Miller’s absence from the state had not prevented the state from commencing prosecution. Id. We adopted the Miller holding in Pearson v. State, 867 So. 2d 517, 519 (Fla. 1st DCA 2004): “The second district’s holding in Miller appears to be proper because the dispositive issue under section 775.15(5) is whether the state’s delay in prosecution is reasonable. Thus, in considering the reasonableness of the delay, it is appropriate to look to whether the defendant’s absence from the state hindered the prosecution.”

and remained continuously absent from the state until his arrest proved the reasonableness of the delay, within the meaning of section 775.15(5).

Since the jailhouse encounter, the Legislature has amended section 775.15(6), Florida Statutes (1993), to add: “This provision shall not extend the period of limitation otherwise applicable by more than 3 years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from this state or has not been extradited for prosecution from another state.” Ch. 97-90, § 1, at 514, Laws of Fla. This amendment to the statute of limitations is not retroactive, and does not control here. See Torgerson v. State, 964 So. 2d 178, 179 (Fla. 4th DCA 2007); Lett v. State, 837 So. 2d 614, 615 n.1 (Fla. 4th DCA 2003); State v. Shamy, 759 So. 2d 728, 730 (Fla. 4th DCA 2000) (the statute of limitations applicable is the one in effect when the crime was committed).

It can be argued that section 775.15(6), Florida Statutes (1993), has no application in the present case because, as the parties agree, the information was filed before even the primary four-year limitations period had run. Cf. Pearson v. State, 867 So. 2d 517, 519 (Fla. 1st DCA 2004) (ruling prosecution timely where information was filed a year after the primary limitations period because “the

appellant was continuously absent from the state and his absence resulted in the tolling of the statute of limitations”). Section 775.15(6) provides:

The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

§ 775.15(6), Fla. Stat. (1993). This subsection “allows the statute of limitations for commencing prosecution (i.e., filing an information or an indictment) to be tolled for the period when the ‘defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state.’” State v. Picklesimer, 606 So. 2d 473, 475 (Fla. 4th DCA 1992). Subsection (6) “is not an absolute limitation upon prosecution after a specified time period,” but “merely allows for a delay of commencement of that prosecution for specified reasons.” Id. See also King v. State, 687 So. 2d 917, 919 (Fla. 5th DCA 1997) (agreeing with Picklesimer that “subsections 775.15(5) and (6) are independent provisions”). In the present case, the filing of the information commenced the prosecution, long before the limitations period had run.

On the other hand, there is support for the contrary view. Some cases suggest that subsection (6) automatically bars (further) prosecution three years after the primary limitations period expires. See Lett, 837 So. 2d at 615 (stating that the statute of limitations could have been extended a maximum of three years

if the defendant was continuously absent from the state, but deciding the case on the basis that the twenty-year delay in serving capias was not reasonable); Robinson v. State, 773 So. 2d 1266, 1266-67 (Fla. 5th DCA 2000) (finding that the state failed to show that delay was reasonable under section 775.15(5), but noting that “in any event, section 775.15(6) . . . which specifically considers a defendant’s absence from the state and permits the period of limitation to be extended therefor, limits such extension to a maximum of three years”). Similarly, in McGregor v. State, 933 So. 2d 1244, 1245 (Fla. 1st DCA 2006), we ruled that appellant had stated a legally sufficient claim for relief in his postconviction motion when he alleged counsel was ineffective for failing to inform him of a viable defense based on the statute of limitations. We said that, even if the statute of limitations was extended under section 775.15(6), it could have been extended for only three years, and that the capias was executed outside the extended time period. Id. But we did not indicate whether the prosecution had been initiated within the limitations period, as it was here and in Picklesimer.

In any event, we need not decide the subsection (6) issue in the present case. By not raising the point in his initial brief, Mr. Goings waived the argument that the trial court erred in denying his motion to dismiss merely because the prosecution remained pending more than three years beyond the four-year primary limitations period. See Jones v. State, 966 So. 2d 319, 330 (Fla. 2002); Hall v.

State, 823 So. 2d 757, 763 (Fla. 2007) (“‘[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.’” (quoting J.A.B. Enters. v. Gibbons, 596 So. 2d 1247, 1250 (Fla. 4th DCA 1992))); Williams v. State, 845 So. 2d 987, 989 (Fla. 1st DCA 2003). This omission moots the question in the present case, just as the statutory amendment moots the question in any similarly prolonged prosecution for offenses occurring on or after July 1, 1997. See Ch. 97-90, § 7, at 521, Laws of Fla.

Affirmed.

HAWKES 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

JOHNNIE E. THOMPSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D09-2391

Opinion filed November 22, 2011.

An appeal from the Circuit Court for Wakulla County. N. Sanders Sauls, Judge.

Nancy A. Daniels, Public Defender, Terry Carley and Glen P. Gifford, Assistant Public Defenders, Tallahassee, for Appellant.

Johnnie E. Thompson, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Johnnie E. Thompson appeals his judgment of conviction and sentence for sale of a controlled substance and possession of a controlled substance with intent

to sell or deliver. We affirm the judgment of conviction but vacate the sentence as corrected.

Upon a verdict of guilt, appellant was sentenced on count I, sale of a controlled substance, to 30 years as a habitual felony offender. For count II, possession with intent to sell or deliver, appellant was also sentenced to 30 years as a habitual felony offender. These sentences were ordered to be served concurrently. Appellate counsel filed a motion to correct sentence, pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure, asserting appellant could not be sentenced as a habitual felony offender as to count II. The trial court agreed and resentenced appellant to 15 years on count II. However, the corrected scoresheet provided that count II was to be served consecutively to count I, not concurrently. It is not apparent from this record whether the order that the sentences be served consecutively was an unintended error or not, but this sentence cannot stand. As this court has explained, a trial court, on resentencing pursuant to a motion to correct an illegal sentence, may “impose consecutive sentences in order to effect the intent of the original sentencing court, as long as the newly imposed sentence [is] not longer than the originally imposed sentence.” Everett v. State, 824 So. 2d 211, 213 (Fla. 1st DCA 2002); see also Farrar v. State, 42 So. 3d 265 (Fla. 5th DCA 2010). Here, the total sentence imposed under the new sentencing scheme is 45 years, whereas the originally imposed sentence provided for a total sentence of

30 years. Accordingly, the order of January 12, 2011, resentencing appellant to a 15-year term consecutive to count I is vacated, and the cause is remanded to the trial court for entry of a corrected sentence consistent with this opinion.

Appellant was directed to file a supplemental brief addressing the sentencing issue discussed infra. In the supplement brief, appellant argued that his convictions were unconstitutional and urged this court to adopt the reasoning of Shelton v. Secretary, Department of Corrections, 2011 WL 3236040 (M.D. Fla. July 27, 2011). For the reasons explained in Flagg v. State, 36 Fla. L. Weekly D2276 (Fla. 1st DCA October 14, 2011), we reject the reasoning and holding in Shelton.

AFFIRMED in part, REVERSED in part and REMANDED for entry of a corrected sentence.

VAN NORTWICK, PADOVANO, and HAWKES, 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

GREGORY L. LONDON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-6402/

Opinion filed November 22, 2011.

An appeal from the Circuit Court for Alachua County. Aymer L. Curtin, Judge.

Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief – Criminal Appeals, Tallahassee, for Appellee.

VAN NORTWICK, J.

Gregory L. London appeals his conviction for aggravated battery with great bodily harm, disability or disfigurement arguing that the trial court erred in

admitting into evidence the recording of a 911 call. Appellant asserts that allowing the recording into evidence deprived him of his right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004). We conclude that the statements made to the 911 operator were non-testimonial because the statements were made to assist the authorities in addressing an ongoing emergency. Accordingly, we affirm.

Prior to trial, the State indicated its intention to introduce the recording of a portion of the 911 call made by Ebony London, appellant’s daughter and the victim’s niece. The State had not been able to obtain service on Ms. London and she was not going to testify at trial. The State asserted that the 911 recording would not violate Crawford because the statements on the recording were not testimonial and enabled the police to meet an ongoing emergency. Defense counsel argued that, to the extent Ms. London told the 911 operator that her aunt was hurt and bleeding, her statements were not testimonial. Defense counsel contended, however, that the identification of Ms. London’s father was testimonial. The court ruled that the recording was admissible.

The victim, Marjorie Roberson, testified that on March 27, 2010, she had taken Ms. London to her home. While there, appellant rode up on his bicycle and he and Roberson engaged in a conversation about Ms. London and her boyfriend. Appellant expressed his opinion that the boyfriend was dangerous. Appellant said

he was going to “mess up” Roberson if Ms. London got hurt. When Roberson responded that she was going to help his daughter, appellant hit her in the face and knocked her to the ground. She sustained multiple fractures to her face.

During Roberson’s testimony, the prosecutor played the recording of Ms. London’s 911 call, as follows:

THE 911 OPERATOR: 911, how may I help you?

MS. LONDON: My auntie is hurt bad. (Inaudible)

THE 911 OPERATOR: What’s the address, ma’am? What’s the address?

MS. LONDON: 1125 Southeast Second Avenue. Please come. It’s really bad.

THE 911 OPERATOR: Listen to me. (Inaudible) MS. LONDON: Oh, God. (Cries)

THE 911 OPERATOR: Yes, ma’am. Calm down and give me the address. Okay. Come on, you can do it.

MS. LONDON: 1125 Southeast Second Avenue. THE 911 OPERATOR: What’s the apartment? MS. LONDON: It’s a house.

THE 911 OPERATOR: What’s the telephone number you’re calling from, area code first.

MS. LONDON: 352-792-5682. My dad’s a punk ass bitch. You need to help me. My auntie is on the ground, just bleeding.

THE 911 OPERATOR: You need to tell me what happened.

MS. LONDON: My auntie was talking to him and I turned around and she was on the ground. She was talking to my dad. His name is Gregory London.

THE 911 OPERATOR: Listen, ma’am, I’m trying to understand what happened. Did somebody assault your daughter?

MS. LONDON: No, somebody assaulted my auntie. My father assaulted her, he hit her in her face and her nose is pouring blood.

THE 911 OPERATOR: Stay on the line with me, okay? MS. LONDON: Yes, ma’am.

THE 911 OPERATOR: Your aunt was assaulted?

MS. LONDON: Yeah, she’s bleeding. The sidewalk is full of blood.

THE 911 OPERATOR: We’re getting you some help. Okay. Hang with me, okay?

MS. LONDON: Okay.

THE 911 OPERATOR: We’re going to send an ambulance to her. Okay?

MS. LONDON: Yes, ma’am.

Roberson testified that she asked her niece to make the 911 call.

After the State rested, the defense rested without witnesses. The jury returned a verdict finding appellant guilty as charged.

On appeal, as below, appellant argues that the recording was in part testimonial. After obtaining the address and telephone number and learning there was a need for medical assistance, the 911 operator asked “what happened,” which elicited Ms. London’s identification of appellant. Appellant asserts that this question turned the exchange into an interrogation for the purpose of gathering evidence, and the responses to the 911 operator thereafter were testimonial. We do not agree.

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with witnesses against him.” U.S. Const., Amend. VI. In Crawford, 541 U.S. at 68, the Supreme Court held the admission of a hearsay statement made by a declarant not available to testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. See also State v. Lopez, 974 So. 2d 340, 345 (Fla. 2008). There is no question here that appellant had no opportunity to cross-examine Ms. London because she was unavailable to testify at trial. Accordingly, we must determine whether the content of the 911 tape is “testimonial” and thus subject to the requirements of the Sixth Amendment Confrontation Clause.

The United States Supreme Court explained the distinction between

testimonial and non-testimony statements in Davis v. Washington, 547 U.S. 813, 822 (2006), as follows:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

In the context of a 911 call, the Davis court found it significant that “the nature of what was asked and answered . . ., again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past.” Id. at 827 (emphasis theirs). Further, under Davis, a 911 operator’s questioning about the identity of an assailant does not, by itself, make the answer testimonial. As Davis explained, resolving the present emergency may require the operator “to establish the identity of the assailant, so that the dispatched officers might know whether they are encountering a violent felon.” Id. (citation omitted). Certainly, a conversation that begins as an interrogation to establish the need for emergency assistance can evolve into testimonial statements once the operator has obtained the information necessary to resolve the emergency. Id. at 828-29.

The 911 recording here was clearly non-testimonial. All of Ms. London’s

statements on the recording dealt with the ongoing emergency and allowed the 911 operator to deal appropriately with the situation. Ms. London’s identification of appellant as the assailant was in response to a question asked for the purpose of providing assistance to the emergency. At the time of the statement, the operator could not be certain what to inform emergency responders, aside from the fact that a woman was suffering blood loss. The circumstances could have been anything from a nosebleed due to a blow to the face, to a shooting, to a bad fall. All of these occurrences would have required different treatments and priorities for the emergency responders. The operator was not asking questions to build evidence for a criminal case. At the time of the question, there was no reason for the operator to even suspect that a criminal action had taken place. See Williams v. State, 967 So. 2d 735, 747 n.11 (Fla. 2007) (observing that the victim “was seeking emergency medical assistance for her life-threatening injuries” and therefore her responses were not testimonial); and U.S. v. Proctor, 505 F.3d 366, 371 (5th Cir. 2007) (Recording of 911 call was non-testimonial because the “statements enabled the police to deal appropriately with the situation that was unfolding. . . .”).

AFFIRMED.

BENTON, C.J., and SWANSON, J., 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

RUDOLPH HARRIS,

Petitioner,

v.

KENNETH S. TUCKER,

Secretary, Florida Department of Corrections,

Respondent.

CASE NO. 1D11-2029

Opinion filed November 22, 2011.

Petition for Writ of Certiorari — Original Jurisdiction.

Rudolph Harris, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, and Maricruz R. Fincher, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

writ of mandamus in which he challenged a disciplinary action that resulted in a forfeiture of gain time. Thus, his claims in this proceeding constituted a collateral criminal proceeding. See Schmidt v. Crusoe, 878 So. 2d 361 (Fla. 2003). As such, there is no authority for the imposition of a lien. See Cason v. Crosby, 892 So. 2d 536 (Fla. 1st DCA 2005). Accordingly, we treat Petitioner’s challenge to the order imposing a lien for costs and fees incurred in this appellate proceeding as a motion for review pursuant to Florida Rule of Appellate Procedure 9.430 and grant the motion. On remand, the circuit court is instructed to direct the reimbursement of any funds that have been withdrawn from Petitioner’s inmate trust account to satisfy the improper appellate fee lien order. See Parker v. McDonough, 958 So. 2d 1108 (Fla. 1st DCA 2007). We further remand for the circuit court to readdress the validity of the lien imposed for filing fees and costs associated with the mandamus proceeding based on the filing of the amended petition as contemplated in the circuit court’s previous order. We deny the petition for writ of certiorari on the merits as it relates to the remaining issues.

BENTON, C.J., HAWKES and WETHERELL, 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

V. B., a child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-2621

Opinion filed November 22, 2011.

An appeal from the Circuit Court for Duval County. David M. Gooding, Judge.

Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant correctly asserts, and the state properly concedes, the trial court erred in ordering restitution based upon hearsay evidence that was improperly admitted at the restitution hearing over appellant’s objection. Butler v. State, 970 So. 2d 919 (Fla. 1st DCA 2007); Forlano v. State, 964 So. 2d 246 (Fla. 1st DCA

2007); I.M. v. State, 958 So. 2d 1014 (Fla. 1st DCA 2007); Herrington v. State, 823 So. 2d 286 (Fla. 1st DCA 2002). Accordingly, we reverse the trial court’s restitution determination and remand for a new restitution hearing. Forlano, 964 So. 2d at 246; Herrington, 823 So. 2d at 286-87.

REVERSED and REMANDED.

WETHERELL, MARSTILLER, and SWANSON, 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

TERRY WEAVER,

Petitioner,

v.

KENNETH S. TUCKER,

Secretary, Florida Department of Corrections,

Respondent.

CASE NO. 1D11-3457

Opinion filed November 22, 2011.

Petition for Writ of Mandamus — Original Jurisdiction. Terry Weaver, pro se, Petitioner.

Jennifer Parker, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.

This court in Weaver v. McNeil, 42 So. 3d 805 (Fla. 1st DCA 2010), affirmed in part an order of the circuit court but reversed and remanded in part for further proceedings. Weaver petitions this court for a writ of mandamus to compel the circuit court to comply with mandate in case number 1D09-4174. Having considered the response of the Department of Corrections to the instant petition and petitioner’s reply, we find that petitioner is entitled to relief. The circuit court is directed to promptly reissue its supplemental order to show cause in its case number 2008-CA-003057, calling for a response from the Department which addresses the issues remanded to the circuit court and making provision for a reply by the petitioner to that response. When the matter is ready for the circuit court’s disposition, a final order on remand shall be promptly issued.

PETITION GRANTED.

HAWKES, MARSTILLER, 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

TONY B. ROBINSON, SR.,

Petitioner,

v.

STATE OF FLORIDA, et al.,

Respondents.

CASE NO. 1D11-4081

Opinion filed November 22, 2011.

Petition for Belated Appeal — Original Jurisdiction.

Tony B. Robinson, Sr., pro se, Petitioner.

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

PER CURIAM.

Petitioner is granted a belated appeal of the May 10, 2011, order which denied a motion to correct illegal sentence in Gadsden County Circuit Court case number 91- 677-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

DAVIS, VAN NORTWICK, and THOMAS, JJ., CONCUR.

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

ALLEN MELTON, JR.,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 1D11-4428

Opinion filed November 22, 2011.

Petition for Belated Appeal — Original Jurisdiction.

Allen Melton, Jr., pro se, Petitioner.

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

PER CURIAM.

Petitioner is granted a belated appeal of the March 21, 2011, order, which denied a motion for postconviction relief in Nassau County Circuit Court case number 10- 549-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

DAVIS, VAN NORTWICK, THOMAS, JJ., CONCUR.

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

CLIFFORD WILLIAM CUPP,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 1D11-4482

Opinion filed November 22, 2011.

Petition for Belated Appeal — Original Jurisdiction.

James Owens, Public Defender, and Christopher Crawford, Assistant Public Defender, Pensacola, for Petitioner.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.

Petitioner is granted a belated appeal of the July 21, 2011, judgment and sentence in Escambia County Circuit Court case number 2011-CF-000356-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

DAVIS, VAN NORTWICK, and THOMAS, JJ., CONCUR.

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

JERAMIE IRVIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-5346

Opinion filed November 22, 2011.

An appeal from the Circuit Court for Leon County. Charles W. Dodson, Judge.

Jeramie Irvin, pro se, Appellant.

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

PER CURIAM.

Because the appellant’s notice of appeal failed to timely invoke the Court’s jurisdiction, the appeal is hereby dismissed for lack of jurisdiction. The dismissal is without prejudice to any right the appellant may have to seek a belated appeal. See Funchess v. Moore, 766 So. 2d 348 (Fla. 1st DCA 2000).

HAWKES, MARSTILLER, and RAY, JJ., CONCUR.

Courtesy of David Edelstein

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