Florida Criminal Law Opinions

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

LARRY BENJAMIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D08-1832

[December 21, 2011]

WARNER, J.

The issue presented in this case is whether appellant’s convictions for lewd or lascivious molestation and lewd or lascivious conduct violate double jeopardy. Because the charges involved a single criminal episode, and the statutory provisions involve the same elements under the Blockburger test, we hold that they violate double jeopardy and reverse.

Appellant was charged by information with four counts. This appeal involves only two. Count III of the information alleged a violation of section 800.04(5)(a), Florida Statutes, in March 2005 when appellant “did intentionally touch in a lewd or lascivious manner the buttocks, or the clothing covering them, of [J.B.], a person 12 years of age or older but less than 16 years of age.” Count IV alleged a violation of section 800.04(6)(a), Florida Statutes, that on the same date, appellant “did intentionally touch [J.B.], a person under 16 years of age, in a lewd or lascivious manner by rubbing his genital area against her body.” The two counts arose out of one incident, where J.B. was sleeping at her aunt’s house, when appellant, her aunt’s husband, came into her room, lay down on the bed, and started rubbing her backside and buttocks with his hand. He then started a grinding motion against J.B.’s back and buttocks. She believed he was grinding her with his private parts, but she never saw his genitals. After this went on for some period of time, he got up and left the room.

At the conclusion of the trial, appellant was convicted of counts III and IV.1 Appellant was sentenced to a fifteen-year prison sentence on count III and to fifteen years of sex offender probation on count IV, consecutive to his sentence on Count III. He appeals these sentences.

The Fifth Amendment “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). Because double jeopardy issues involve purely legal determinations, the standard of review is de novo. See Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002).

On appeal, appellant claims that his convictions under both sections 800.04(5)(a) and 800.04(6)(a) for conduct against the same victim during the same episode are duplicative and violate double jeopardy. Section 800.04, Florida Statutes, defines various lewd or lascivious offenses under Florida law. Subsection (5)(a) defines lewd or lascivious molestation, providing in pertinent part as follows: “A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.” § 800.04(5)(a), Fla. Stat. (2004).2 Subsection (6)(a) defines lewd or lascivious conduct, providing that a person who “[i]ntentionally touches a person under 16 years of age in a lewd or lascivious manner … commits lewd or lascivious conduct.” § 800.04(6)(a), Fla. Stat. (2004).

State v. Paul, 934 So. 2d 1167 (Fla. 2006), receded from in part by Valdes v. State, 3 So. 3d 1067 (Fla. 2009), controls the result in this case. In Paul, the defendant had touched the victim in the genital area over the clothing and kissed the victim on the neck while in the living room. For the episode in the living room, the defendant was convicted of lewd and lascivious molestation under section 800.04(5)(a) for touching the victim’s genitals, and lewd and lascivious conduct under section 800.04(6)(a) for kissing the victim’s neck. Id. at 1170, 1173.

1 He was also convicted on count II involving a different victim. His sentence on that count was fifteen years in prison, and the sentence on count III was consecutive to the sentence on count II. Probation on count IV was consecutive to both prison sentences.

2 The 2004 version of the statute was in effect until August 31, 2005. Because the instant case involves a March 2005 incident, the 2004 statute is applicable.

In Gordon v. State, as cited in Paul, our supreme court explained: “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’” 780 So. 2d 17, 19 (Fla. 2001), receded from in part by Valdes (quoting M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996)). If there is no clear “legislative intent to authorize separate punishments for two crimes” then a court employs the use of the Blockburger3 test “to determine whether separate offenses exist.” Id. at 19-20. Finding no clear statement of legislative intent in its review of section 800.04, the Paul court applied the codified Blockburger analysis set forth in section 775.021. Paul, 934 So. 2d at 1172.

Noting that the Blockburger test applies to crimes occurring in only one criminal transaction or episode, the Paul court explained that the first step is to review whether there was one criminal episode or multiple episodes. Id. In determining whether offenses occurred during a single criminal episode, courts must “look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a temporal break between offenses.” Id. at 1172-73 (citation and internal quotations omitted). A court must then “apply the Blockburger test to each criminal episode to determine whether multiple punishments are authorized.” Id. at 1173. The Blockburger “same elements” test “prohibits courts from imposing multiple convictions for an act or acts which occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses.” Id. at 1172. Under the “same elements” test, each offense is considered separate “‘if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.’” Id. at 1173 (quoting § 775.021(4)(a), Fla. Stat. (2005)) (emphasis in Paul).

In reference to offenses under sections 800.04(5)(a) and (6)(a), the Paul court explained:

In comparing the elements of sections 800.04(5)(a) and 800.04(6)(a), we hold the same elements test will not permit multiple convictions. Specifically, section 800.04(6)(a)(1) defines “lewd or lascivious conduct” as any intentional touching of “a person under 16 years of age in a lewd or lascivious manner,” while section 800.04(5)(a) defines “lewd

3 Blockburger v. United States, 284 U.S. 299 (1932).

or lascivious molestation” as the intentional touching “in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator.” § 800.04, Fla. Stat. (1999). In other words, any violation of subsection (5)(a), which prohibits the lewd touching of particular body parts of a person under sixteen years of age, will also violate subsection (6)(a), which simply prohibits any lewd touching of a person under sixteen years of age. Thus, one cannot say “each offense has an element that the other does not.” While subsection (5)(a) has an element that subsection (6)(a) does not, the converse is not true – that (6)(a)(1) has an element (5)(a) does not. Therefore, dual convictions and punishments are not permitted for these violations.

Id. at 1173-74 (emphasis in original). The court concluded that Paul could not be convicted of both a violation of section 800.04(5)(a) and section 800.04(6)(a)(1) for the two acts in the living room.

Applying the analysis to this case, we conclude that the two charges arose out of one criminal episode. Both acts were performed on one victim in the same location and with practically no temporal separation. See Paul. Furthermore, the “same elements” test establishes that appellant cannot be convicted under both section 800.04(5)(a) and section 800.04(6)(a) for conduct in the same criminal episode. Id. at 1173-74. Therefore, his conviction and sentences for both crimes violates double jeopardy.

When dual convictions of the same degree are found to violate double jeopardy, the proper remedy is to “vacate the conviction and sentence on one of those counts.” Binns v. State, 979 So. 2d 439, 442 (Fla. 4th DCA 2008). We therefore reverse and remand with instructions that the trial court vacate the conviction and sentence on either count III or count IV.

POLEN and GERBER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Charles M. Greene, Judge; L.T. Case No. 05-5159 CF10A.

Philip J. Massa, Regional Counsel, and Louis G. Carres, Special

Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, 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

GUICHARD JEAN-BAPTISTE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-4958

[December 21, 2011]

MAY, C.J.

The defendant appeals his conviction for sexual battery on a person under twelve by a person under the age of eighteen, and his life sentence. We find no merit in the issues raised concerning his conviction, but reverse his life sentence. We remand the case to the trial court for resentencing.

Recently, the United States Supreme Court held that a life sentence without the possibility of parole for a non-homicide crime constitutes cruel and unusual punishment for a defendant under the age of eighteen at the time the crime is committed. Graham v. Florida, 130 S. Ct. 2011, 2033–34 (2010). “A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Id. at 2034.

Here, the defendant was sixteen at the time of the crime. His life sentence violates the Eighth Amendment of the United States Constitution and must be reversed. See Cunningham v. State, No. 4D09- 2737, 2011 WL 5554540 (Fla. 4th DCA Nov. 16, 2011).

The conviction is affirmed, but the life sentence is reversed and the case is remanded for resentencing.

STEVENSON and CIKLIN, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case No. 562007CF002603A.

Jennifer R. Kuczler, Fort Pierce, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. McIntire, 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

GABRIEL MESA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-5096 [December 21, 2011] EHRLICH, MERRILEE, Associate Judge.

Defendant was charged b y information with manufacture of marijuana, conspiracy to traffic in marijuana and possession of cocaine, alprazolam, amphetamine, hydrocodone, and oxycodone. Subsequently, defendant filed a motion to suppress challenging the legality of the search warrant for lack of probable cause. The trial court denied the motion. As a result, defendant entered into a plea agreement with the State where defendant entered a plea of nolo contendere to Counts 1, 3, 4, 7, and 8 of the information, while reserving his right to appeal the denial of his dispositive motion to suppress. The State nolle prossed counts 2, 5, and 6. This appeal followed. We agree with the defendant that the trial court erred in denying the motion to suppress and reverse.

At the hearing on the motion to suppress, the defendant agreed that there was no bad faith on the part of the officers in submitting the search warrant application and affidavit. Defendant also did not argue that the affiant omitted any material facts or made a n y material misrepresentations. Rather, defense counsel argued that the alleged facts therein were insufficient to support a finding of probable cause.

The entire affidavit in support of the application for the search warrant states as follows:

(a) Affiant was a police officer for two (2) years. He completed over 600 hours’ training beyond the basic police academy. He was also a Uniformed Crime Scene Investigator and had participated in multiple serious narcotics investigations and

arrests.

Within the past 30 days, a past proven and reliable confidential informant informed affiant that David Devroomen was operating a marijuana grow house from his residence, located at 525 N.W. Biscayne Dr. within the city limits of Port St. Lucie. Such was corroborated through affiant’s investigation. Devroomen was utilizing a black 1994 Chevrolet pick-up truck (tag # R135K). A record check showed that the truck was registered to defendant.

Defendant resided at 380 N.W. Dearmen St., which is in close proximity to Devroomen’s residence. Devroomen made numerous stops at defendant’s house.

During the course of the investigation it was learned that Devroomen used defendant’s vehicle to further his criminal enterprise in the cultivation of marijuana.

A check of FPL records for defendant’ s residence displayed “erratic/abnormal patterns of electrical usage for the neighborhood. Note: The usage was compared to the other homes of the same size and in the immediate area.”

After this initial information was gathered, surveillance of defendant’s residence revealed the following observations:

A wood fence around the air conditioning unit on the outside of the home. Per affiant, such fencing is typically u s e d to conceal irregular use of air conditioning used to keep (marijuana) grow rooms cool from the overwhelming heat produced by the grow lights and fans.

A humming noise heard from within the residence. Per affiant, such sound is commonly associated with electrical ballasts u s e d within marijuana grow operations to supply electrical current to related growing hardware.

There were sensor lights outside, at the four corners of the home. Per affiant, such were typically utilized at grow houses for counter surveillance in order to avoid detection.

iv. All windows of the residence, including the glass window in the front door had window treatments that do not allow light to escape. Per affiant, such is a common practice in marijuana grow houses to avoid detection; no one can see in.

Probable Cause

Where the issuance of a search warrant based upon a probable cause affidavit is at issue, the reviewing court is required to give “great deference” to the magistrate’s probable cause determination. State v. Abbey, 28 So. 3d 208, 210 (Fla. 4th DCA 2010) (quoting State v. Rabb, 920 So. 2d 1175, 1180 (Fla. 4th DCA 2006) (other internal quotation marks omitted)). The “duty of reviewing courts is simply to ensure that the magistrate had a substantial basis for . . . concluding that probable cause existed.” Rabb, 920 So. 2d at 1180 (internal quotation marks and alterations omitted).

The magistrate’s duty “is simply to make a practical, common-sense decision, whether, given all the circumstances set forth [within the four corners of] the affidavit before him . . . there is a fair probability that . . . evidence of a crime will be found in a particular place.” Id. at 1180 (quoting DeLaPaz v. State, 453 So. 2d 445, 446 (Fla. 4th DCA 1984)); see also Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002) (to determine whether probable cause exists, the court must make a judgment based on the totality of the circumstances).

We conclude that there was not a substantial basis for concluding that probable cause existed for several reasons. First, the confidential informant’s information was only as to Devroomen and his residence. The confidential informant had no information or involvement with the defendant or his house.

Second, the affiant averred that Devroomen utilized defendant’s pick­up truck; that affiant’s investigation disclosed that Devroomen used defendant’s pick-up truck to further his criminal enterprise; that Devroomen lives “in close proximity” to defendant’s residence; and that Devroomen made numerous stops at defendant’s residence. What was missing, however, were the particulars. There are no dates, no amounts of times per week, per day or per month to quantify the “numerous” stops that Devroomen made to defendant’s home. There is no indication that Devroomen visited defendant’s residence using defendant’s truck. There is no description of the numerous visits that Devroomen made to

defendant’s residence that would provide indicia of characteristics of an ongoing marijuana grow house operation there. There is nothing within the four corners of the affidavit in support of the search warrant indicating that the police investigation and surveillance uncovered anything linking defendant to Devroomen’s illegal use of defendant’s truck by way of knowledge, action or otherwise. And, as to the two men living in “close proximity” to one another, they do not live on the same block, so just how close do they live to one another? How long has each lived there? Who moved there first? Was it recently? How the facts and lack thereof are presented to a magistrate are important as well.

Third, per the affiant, FPL records for defendant’s residence displayed “erratic/abnormal patterns of electrical usage for the neighborhood” when compared to other homes of the same size and in the immediate area. Once again, n o particulars are provided to explain affiant’s conclusion of “erratic/abnormal patterns.” Were the comparable homes built within the same time frame as the defendant’s home? Were there insulation issues? How many people lived in those homes relative to the defendant’ s household? Did appellant have visitors during this timeframe which was “season” in South Florida? Did the defendant’s home have old or new, energy efficient appliances? What was the actual electrical usage at defendant’s home and how much did it differ from his neighbors? Perhaps the most important particular missing is how does defendant’s electrical usage compare to Devroomen’s or other known marijuana grow houses?

Fourth, after the above information was gathered, surveillance of defendant’s house revealed a wood fence around the outside air conditioning unit, which is completely innocent by itself, and there are n o facts indicating that the air conditioning unit was oversized or commercial grade. Rather, the unit here was just a regular residential unit, an eyesore that was hidden by a wood fence. What is not mentioned is whether neighboring residences also had fences or foliage around their outside air conditioning units. Further, unless ballasts used in marijuana grow houses have a special identifying humming noise, which the affiant does not aver, it is just as reasonable to believe that the humming noise coming from inside of the home was a common household appliance (dishwasher, washing machine, air conditioner, or otherwise). How long he listened is not provided by affiant. Similarly, the sensor security lights outside, at the four corners of the home, appear to be perfectly innocent, by themselves, as well. The affidavit for the search warrant does not reflect how many other residences in the neighborhood have the same or similar security measures or whether or not this was a high crime area for residential burglaries at that time, but

this is a reasonably cautious homeowner’s action and a task that police constantly instruct homeowners to perform to protect themselves and their property against burglars. In addition, the fact that all of the windows, including the window in the front door, had window treatments that kept out light and prying eyes is not cause for suspicion in Florida. It keeps out the heat to keep residents more comfortable and their FPL bills lower and keeps would-be criminals from peeking in and seeing whether they may want to burglarize the home. The fact that it also kept the police’s prying eyes from seeing in through the windows does not make it suspicious.

The particulars delineated herein are suggestions only. They are not a list of requirements. The more particulars provided within the four corners of an affidavit in support of an application for search warrant, the more a mere possibility, warranting more investigation and surveillance, becomes a fair probability in a “close call” case such as this case. The actual facts of this case boil down to this. Defendant loaned Devroomen his truck. Devroomen visited defendant often. Devroomen had a grow house. Devroomen used defendant’s truck to further his criminal enterprise. Was there more than guilt by association and a trained police officer’s gut instinct at that point? A “substantial” basis to conclude that probable cause existed for Devroomen and his home does not automatically carry over to defendant and his home without more.

Most obviously lacking was the fact that affiant got close enough to defendant’s residence to hear the humming noise inside and to try to look through various windows, but smelled n o odor of cannabis emanating from the residence. See, e.g., Rabb, supra. There is nothing in the affidavit about typical marijuana grow house equipment or cannabis or otherwise going in or out of defendant’s home, especially by Devroomen utilizing defendant’s truck. There is nothing in the affidavit indicating that defendant’s residence had the same characteristics as Devroomen’s residence, a proven marijuana grow house, and what those characteristics are. There is nothing in the affidavit indicating trash pulls by affiant at defendant’s residence nor the use of confidential informants or even anonymous tipsters regarding defendant’s residence. Baker v. State, 762 So. 2d 977, 978 (Fla. 4th DCA 2000).

The use of defendant’s truck by Devroomen in the furtherance of a criminal enterprise and the fact that defendant lived nearby certainly gave affiant a good faith basis to take a good look at defendant. However, the equally innocent explanations for all that the police found (and did not find: the odor of cannabis) at defendant’s residence still merely suggested the possibility only, under the totality of the circumstances,

without more particulars in the affidavit in support of the search warrant, that there was a nexus between the subject of the search and the residence to be searched.

Good Faith Exception

We also do not agree that the good faith exception applies in this instance. Garcia v. State, 872 So. 2d 326, 330 (Fla. 2d DCA 2004), held that, where there is a lack of facts, a real paucity of facts, a very weak case, the law is well established that where “the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception.” When an affidavit for a search warrant is so lacking in indicia of probable cause “as to render an official’s belief in its existence entirely unreasonable,” the good faith exception is not applicable. Dyess v. State, 988 So. 2d 146, 149 (Fla. 1st DCA 2008) (quoting Montgomery v. State, 584 So. 2d 65, 68 (Fla. 1st DCA 1991)). The good faith exception does not apply where the affidavit is so lacking in probable cause and fails to establish a nexus between the objects of the search and the residence to be searched. Gonzalez v. State, 38 So. 3d 226, 230 (Fla. 2d DCA 2010); Garcia, 872 So. 2d at 330.

Although a magistrate’s probable cause determination is entitled to “great deference” when based upon a probable cause affidavit, the court should not defer if there is no substantial basis for concluding that probable cause existed. Rabb, 920 So. 2d at 1180-81. As stated in Polk v. Williams, 565 So. 2d 1387 (Fla. 5th DCA 1990):

Probable cause is a practical common-sense question. Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 543 (1983). It is the probability of criminal activity, and not a prima facie showing of such activity which is the standard of probable cause. Spinelli v. U.S., 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The determination of probable cause involves factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v. U.S., 338 U.S. 160, 176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879, 1891 (1949). “As long as the magistrate had a substantial basis for concluding that search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462 U.S. at 236, 193 S. Ct. at 2331, 76 L. Ed. 2d at 547.

Polk, 565 So. 2d at 1391. See also Pagan, 830 So. 2d at 806. Here, from

the actual facts placed before the magistrate regarding innocent characteristics of the home, and despite the information regarding trips b y a drug grower using the defendant’s truck, there was not a “substantial” basis for concluding that a search of defendant’s home would uncover evidence of wrongdoing sufficient to allow the “good faith” exception to apply.

Reversed and Remanded.

POLEN, J., concur.

WARNER, J., concurs specially with opinion.

WARNER, J., concurring specially.

I concur in the majority opinion. The facts in the probable cause affidavit show only innocent conduct with respect to the house sought to be searched, even considering them in the totality of the circumstances: 1) a wood fence around an air conditioning unit; 2) humming noise; 3) light sensors on the outside; and 4) windows covered with window treatments. In addition, the residence displayed “erratic/abnormal patterns” of electrical use (not higher than normal), whatever that means. These same features could describe many homes in South Florida. Even combined with the fact that an individual who was known to have his own grow house used the resident’s truck and was seen frequently at the home, this does not provide probable cause to believe that illegal activity was going on inside of this residence.

Most other cases involving search warrants of homes suspected of growing marijuana involve situations where officers either observed a defendant with growing equipment, see, e.g., Prado v. State, 701 S.E.2d 871 (Ga. Ct. App. 2011), or more frequently the smell of marijuana emanating from the residence. See, e.g., Nieminski v. State, 60 So. 3d 521 (Fla. 2d DCA 2011); State v. Arango, 9 So. 3d 1251 (Fla. 3d DCA 2009); Rodriguez v. State, 958 So. 2d 469 (Fla. 2d DCA 2007). Here there were none of these observations, and while there is no mandatory requirement that the officers smell marijuana, the state has not cited to us cases with similar facts to these where the search warrant has been upheld.

As Judge Ehrlich notes, the questions she asks in her opinion are not requirements, and no issuing magistrate should deny a search warrant for a marijuana grow house simply because it doesn’t answer each question pointed out in the opinion. The majority analysis does provide a useful example, however, of the type of thought process an issuing

magistrate should engage in to determine whether the affidavit is sufficient, where the facts on which it relies are so meager as they are in this particular case.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562008CF000656C.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, 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

D.J., a child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1592

[December 21, 2011]

PER CURIAM.

D.J. appeals an order finding him guilty, but withholding adjudication of delinquency and imposing probation, for possession of a weapon or firearm on school property. He claims the trial court erred when it denied his motion for judgment of dismissal and determined the knife he was charged with carrying was not a common pocketknife, but a weapon, as defined in section 790.001(13), Florida Statutes.

The knife in this case is a folding knife that snaps closed and locks into place. It has a partially serrated, curved single-edge blade with a pointed tip. The length of the blade is slightly less than three inches, and the entire length of the blade and handle is less than four inches. The blade shows quite a bit of wear and scratches consistent with significant use. A clip on the handle allows the knife to be attached to a belt. At trial, the arresting officer testified the knife could be opened in a smooth action with one hand and the blade locks into place.

The trial court held the knife was distinguishable from a common pocketknife because it was larger and heavier than a common pocketknife, snaps out in a smooth action and locks into place, and the blade has serrations, is very sharp, and very pointy. On appeal, the State argues that the knife at issue in this case is not a common pocketknife because it has a serrated edge.

The standard of review for a motion for judgment of dismissal in juvenile cases is de novo. R.H. v. State, 56 So. 3d 156, 157 (Fla. 4th DCA 2011).

In L.B. v. State, 700 So. 2d 370 (Fla. 1997), the supreme court defined a “common pocketknife” as “[a] type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.” Id. at 372. Following a 1951 Florida Attorney General’s opinion, the court held that a pocketknife with a blade of four inches or less in length which could be carried in one’s pocket was presumed to be a “common pocketknife,” although the court declined to apply a bright-line rule. Id. at 373 n.4 (citing Op. Att’y Gen. Fla. 051-358 (1951)).

In T.S.W. v. State, 36 Fla. L. Weekly D1821 (Fla. 4th DCA Aug. 17, 2011), we recently held that a knife with a three-and-a-quarter inch partially serrated blade a n d a grooved handle was a common pocketknife, because it had “no weapon-like characteristics such as a hilt guard, notched combat-style grip, double-edged blade, or switchblade; furthermore, it was not carried in an open and locked position.” Also, in C.R. v. State, 36 Fla. L. Weekly D2358 (Fla. 4th DCA Oct. 26, 2011), we determined that a knife with a blade of less than four inches that included features such as a belt clip, a knob to open the blade, a locking mechanism, and a textured handle was not distinctive enough to be distinguishable from a common pocketknife.

In this case, the three-inch knife carried by D.J. lacks any of the weapon-like characteristics we noted in T.S.W., and includes features we have previously held to not distinguish a knife from a common pocketknife. Therefore, we find the trial court erred in denying the motion for judgment of dismissal.

Reversed.

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

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Merrilee Ehrlich, Judge; L.T. Case No. 09-10319DL00A.

Carey Haughwout, Public Defender, and Patrick B. Burke, 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.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT July Term 2011

ERNIE TERRELL STRAIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-771

[December 21, 2011]

GERBER, J.

The defendant argues that the trial court erred in convicting him for both possession of a firearm by a convicted felon and possession of ammunition by a convicted felon. He relies on our opinion in Boyd v. State, 17 So. 3d 812 (Fla. 4th DCA 2009). In Boyd, we held that the double jeopardy clause precludes convicting a felon for both possession of a firearm and possession of ammunition when the possessions occur at the same time. Id. at 818 (interpreting section 790.23, Florida Statutes (2005)). The state, on the other hand, relying on Nicholson v. State, 757 So. 2d 1227 (Fla. 4th DCA 2000), argues that the defendant’s possession of the firearm and possession of the ammunition “were clearly separate in both time and space such as to be properly considered as two separate offenses.” Id. at 1228.

We agree with the defendant’s argument. Although the firearm and the ammunition were found at two separate times, the defendant’s possession of the firearm and the ammunition were not “clearly separate in both time and space.” Id. Rather, the defendant’s possession of the firearm and the ammunition consisted of “a single possession of more than one article.” Id. Therefore, the trial court erred in convicting the defendant for both possession of a firearm by a convicted felon and possession of ammunition by a convicted felon.

Because the defendant’s conviction for possession of a firearm by a convicted felon carries a three-year minimum mandatory sentence, see § 775.087(2)(a)1.r., Fla. Stat. (2009), we remand for the trial court to vacate the defendant’s conviction and sentence for possession of

ammunition b y a convicted felon and to correct the defendant’s scoresheet and judgment accordingly. See Olivard v. State, 831 So. 2d 823, 824 (Fla. 4th DCA 2002) (“When dual convictions violate double jeopardy, the proper remedy is to vacate the conviction for the lesser offense while affirming the conviction for the greater one.”) (internal quotations and brackets omitted).

On the other two arguments which the defendant raises in this appeal, including his challenge to his conviction for tampering with a witness, we affirm without further discussion. However, we remand for the trial court to amend the defendant’s sentence for tampering with a witness to show that the sentence, which was to run consecutively to the sentence for possession of ammunition by a convicted felon, now shall run consecutively to the sentence for possession of a firearm by a convicted felon.

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

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey J. Colbath, Judge; L.T. Case No. 2009CF004825AMB.

Carey Haughwout, Public Defender, and Alan T. Lipson, 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

LEON KING,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1211

[December 21, 2011]

PER CURIAM.

Affirmed. See Maestas v. State, 2011 WL 5964337 (Fla. 4th DCA Nov. 30, 2011).

WARNER, DAMOORGIAN and GERBER, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert Pegg, Judge; L.T. Case Nos. 312008CF000433A, 312008CF000473, 312008CF000475 and 312008CF000477.

Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, and Leon King, Bushnell, 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.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

LOUIS LOPEZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2256

[December 21, 2011]

WARNER, J.

Louis Lopez appeals his convictions and sentences for aggravated assault, burglary of a dwelling with an assault or battery, two counts of attempted felony murder, and shooting a deadly missile at a vehicle. He raises two claims of error as to his conviction, one as to the denial of a juror challenge for cause and the other as to his attorney’s ineffective assistance in failing to object to an out-of-court identification. We find no error on either issue.

First, appellant claims that the trial court erred in denying a challenge for cause to one of the jurors. Specifically, the juror expressed concern that the “beyond a reasonable doubt” burden would make it harder to find the appellant guilty or not guilty. This statement does not show bias for or against the defense. As we said in Juede v. State, 837 So. 2d 1114, 1115 (Fla. 4th DCA 2003),

A juror should be dismissed for cause where there is reasonable doubt as to his or her impartiality. . . . The applicable test is whether a juror can lay aside any bias or prejudice and render a verdict solely o n the evidence presented and the instructions on the law given by the court. . . . Whether a challenged juror’s responses meet the . . . test is a mixed question of law and fact to be resolved by the trial court.

Second, appellant also claims ineffective assistance of counsel on the face of the record for failure of his attorney to object to an unnecessarily suggestive out-of-court identification of appellant. Ineffective assistance of counsel arguments are not cognizable on direct appeal generally. McKinney v. State, 579 So. 2d 80, 82 (Fla. 1991). We find that the general rule is applicable here.

Affirmed.1

MAY, C.J., and POLEN, J., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Robert E. Belanger, Judge; L.T. Case No. 472008CF000667A.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

1 In the initial brief on appeal, appellant also raised errors in sentencing. These were corrected through a Rule 3.800(b)(2) motion in the trial court. However, we would note that one of the sentences did not require correction, based upon case law developed after the sentence correction. Appellant was charged with and was found guilty of shooting a deadly missile into an occupied vehicle. The judge sentenced him as a PRR to fifteen years in prison. The state conceded that shooting a deadly missile is not a qualifying offense for PRR sentencing, citing Paul v. State, 958 So. 2d 1135 (Fla. 4th DCA 2007). Paul involved shooting into a building, a crime which did not qualify for PRR sentencing. However, in Paul v. State, 59 So. 3d 193 (Fla. 4th DCA 2011), we held that shooting a deadly missile into a vehicle would qualify for PRR sentencing, because section 790.19 required the vehicle to be occupied.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT July Term 2011

TIMOTHY ANDERSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-4477

[December 21, 2011]

PER CURIAM.

Affirmed. See Panto v. State, 59 So. 3d 1092 (Fla. 2011). POLEN, STEVENSON and TAYLOR, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562009CF000690A.

Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, 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

JORGE L. DOMINGUEZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-5113

[December 21, 2011]

PER CURIAM.

Affirmed. Appellant is cautioned that filing future frivolous appeals or petitions from this lower court case involving post-conviction or other collateral challenges to his adjudication and/or sentence may result in sanctions, including an order barring pro se pleadings or other filings under 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. See §§ 944.279(1), 944.28(2)(a), Fla. Stat.

POLEN, HAZOURI and CIKLIN, JJ., concur.

* * *

Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 97-13306 CF10A.

Jorge L. Dominguez, Graceville, 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

KEVIN SLEEM,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D11-3392

[December 21, 2011]

PER CURIAM.

Appellant appears to be appealing the denial of a motion for correction or modification of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). Such orders are not appealable. Howard v. State, 914 So. 2d 455 (Fla. 4th DCA 2005).

Dismissed.

POLEN, HAZOURI and CONNER, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey Colbath, Judge; L.T. Case No. 2009CF004832AXX.

Kevin Sleem, Jasper, 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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