Florida Criminal Law Opinions

Supreme Court of Florida

No. SC11-205

JEFFREY ROBERT HASTINGS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[November 17, 2011]

PER CURIAM.

Jeffrey Robert Hastings, an inmate in state custody, filed a pro se petition for writ of mandamus with this Court.1 Hastings’ petition is the twenty-seventh notice or extraordinary writ petition he has filed with this Court since 2000. For many years, Hastings has been unsuccessfully attempting to collaterally attack his conviction or sentence for escape in State v. Hastings, Case No. 74-179-CF (Seventh Judicial Circuit), and his convictions or sentences for manslaughter in State v. Hastings, Case No. 79-3126-CFA02 (Fifteenth Judicial Circuit). We now

1. We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

determine that, because Hastings has abused the limited judicial resources of this Court, sanctions are warranted.

In 1974, Hastings entered a guilty plea to escaping from state custody and was sentenced by the Circuit Court of the Seventh Judicial Circuit in and for Putnam County, Florida, to a fifteen-year term in prison. In a separate case, Hastings was convicted of six counts of manslaughter and sentenced in 1980 by the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, as a habitual offender to six consecutive thirty-year terms in prison.

After his convictions and sentences in both cases became final, Hastings filed numerous pro se filings in this and other courts. In August 1998, the Fifteenth Judicial Circuit issued an order prohibiting Hastings from filing any further pro se filings involving his manslaughter convictions and sentences. The Fifth District Court of Appeal, on June 1, 2001, issued an opinion prohibiting Hastings from filing any further pro se filings involving his conviction and sentence for escape. Hastings v. State, 788 So. 2d 342 (Fla. 5th DCA 2001). On January 2, 2003, the Fourth District Court of Appeal issued an opinion prohibiting Hastings from filing any further pro se filings involving his convictions and sentences for manslaughter. Hastings v. Krischer, 840 So. 2d 267, 272 (Fla. 4th DCA 2003).

On or about December 17, 2010, Hastings filed the instant petition for writ of mandamus with this Court. In his petition, Hastings requested that we compel the Office of the Public Defender for the Fifteenth Judicial Circuit to assist him in obtaining postconviction relief. By order dated May 18, 2011, we dismissed Hastings’ mandamus petition. Hastings v. State, 64 So. 3d 117 (Fla. 2011) (table).2 Concurrent with the dismissal of his mandamus petition, we expressly retained jurisdiction to impose possible sanctions, and directed Hastings to show cause why this Court should not reject any future pro se filings submitted by him to this Court that pertain to his convictions or sentences in Case No. 74-179-CF and Case No. 79-3126-CFA02.

In his response to the order to show cause, Hastings argues that he should not be sanctioned for diligently pursuing postconviction relief. Hastings contends that his lengthy pro se filing history in this Court is the result of his lack of legal sophistication and the failure of the lower courts to timely correct his allegedly illegal sentences. In addition, Hastings asserts that not all of his pro se filings in this Court pertained to his convictions and sentences, and that a portion of his filings with this Court concerned parole and gain-time matters.

2. See Pettway v. State, 776 So. 2d 930, 931 (Fla. 2000) (stating that the Court generally will not consider the repetitive petitions of persons who have abused the judicial processes of the lower courts such that they have been barred from filing certain actions there).

Upon due consideration of Hastings’ response, we find that his arguments are without merit. Hastings’ voluminous pro se filing history with this Court has necessitated our scrutiny.3 After reviewing his pro se filings, we find that, while

3. See Hastings v. Fla. Parole Comm., No. SC10-1717 (Fla. Oct. 25, 2010) (mandamus petition transferred to the circuit court); Hastings v. McNeil, No. SC10-1160 (Fla. Sept. 6, 2010) (mandamus petition transferred to the circuit court); Hastings v. McNeil, No. SC10-586 (Fla. May 4, 2010) (prohibition petition transferred to the district court); Hastings v. State, 44 So. 3d 107 (Fla. 2010) (table) (mandamus petition dismissed); Hastings v. McNeil, No. SC09-1999 (Fla. Dec. 9, 2009) (mandamus petition transferred to the circuit court); Hastings v. State, 12 So. 3d 220 (Fla. 2009) (table) (mandamus petition dismissed); Hastings v. McNeil, 3 So. 3d 317 (Fla. 2008) (table) (habeas corpus petition dismissed); Hastings v. State, 996 So. 2d 212 (Fla. 2008) (table) (denying discretionary review); Hastings v. State, 993 So. 2d 512 (Fla. 2008) (table) (all writs petition dismissed for lack of jurisdiction); Hastings v. McDonough, 965 So. 2d 122 (Fla. 2007) (table) (habeas corpus petition dismissed); Hastings v. McDonough, 945 So. 2d 1290 (Fla. 2006) (table) (habeas corpus petition dismissed); Hastings v. State, 898 So. 2d 80 (Fla. 2005) (table) (habeas corpus petition dismissed as duplicative); Hastings v. State, 902 So. 2d 790 (Fla. 2005) (table) (denying discretionary review); Hastings v. State, 907 So. 2d 518 (Fla. 2005) (table) (habeas corpus petition dismissed as unauthorized); Hastings v. State, 902 So. 2d 790 (Fla. 2005) (table) (habeas corpus petition denied); Hastings v. State, No. SC03-1522 (Fla. Sept. 19, 2003) (habeas corpus petition transferred to the circuit court); Hastings v. State, 884 So. 2d 22 (Fla. 2004) (table) (habeas corpus petition dismissed for lack of jurisdiction); Hastings v. State, 821 So. 2d 296 (Fla. 2002) (table) (mandamus petition denied in part and dismissed in part); Hastings v. State, 826 So. 2d 992 (Fla. 2002) (table) (habeas corpus petition denied as procedurally barred); Hastings v. State, 805 So. 2d 807 (Fla. 2002) (table) (denying discretionary review); Hastings v. State, 807 So. 2d 653 (Fla. 2001) (table) (habeas corpus petition denied as procedurally barred); Hastings v. State, No. SC01-800 (Fla. Aug. 4, 2001) (mandamus petition transferred to the district court); Hastings v. State, No. SC00-1836 (Fla. Nov. 17, 2000) (habeas corpus petition transferred to the circuit court); Hastings v. State, No. SC00-1054 (Fla. June 13, 2000) (habeas corpus petition transferred to the circuit court); Hastings v. State, 762 So. 2d 916 (Fla. 2000) (table) (habeas corpus petition denied as procedurally barred); Hastings v. State, 753 So. 2d 564 (Fla. 2000) (table) (habeas corpus petition voluntarily dismissed).

some of the proceedings initiated by Hastings have pertained to parole and gain-time matters, an overwhelming majority of the twenty-seven proceedings initiated by Hastings have repeatedly attempted to collaterally attack his convictions or sentences. Each proceeding initiated by Hastings concerning his convictions or sentences was either, like the instant petition, devoid of merit or inappropriate for review in this Court. Hastings’ response shows neither justification for using, nor remorse about misusing the limited judicial resources of this Court. We conclude that, unless he is stopped, Hastings will continue to file meritless requests for relief in this Court regarding his convictions or sentences.

This Court has, when necessary, exercised its inherent judicial authority to sanction abusive litigants. See, e.g., Johnson v. Rundle, 59 So. 3d 1080 (Fla. 2011); Steele v. State, 14 So. 3d 221 (Fla. 2009). In doing so, this Court has repeatedly emphasized the necessity for court-imposed sanctions to preserve every citizen’s right to access the courts. E.g., Peterson v. State, 817 So. 2d 838, 840 (Fla. 2002). Court-imposed sanctions safeguard this right by permitting the Court to devote its finite resources to conduct timely reviews of legitimate filings. See, e.g., Johnson, 59 So. 3d at1082; Steele, 14 So. 3d at 223.4

4. The United States Supreme Court has stated that “[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.” In re McDonald, 489 U.S. 180, 184 (1989).

In accordance with these principles, we now direct the Clerk of this Court to reject any future pleadings or other requests for relief submitted by Jeffrey Robert Hastings that are related to his convictions or sentences in Case No. 74-179-CF and Case No. 79-3126-CFA02 unless such filings are signed by a member in good standing of The Florida Bar. Under the sanction herein imposed, Hastings may only petition the Court about his convictions or sentences in Case No. 74-179-CF and Case No. 79-3126-CFA02 through the assistance of counsel whenever such counsel determines that the proceeding may have merit and can be filed in good faith. However, Hastings’ abusive pro se filings related to his convictions or sentences must immediately end.

Furthermore, since we have in this opinion found that Hastings has repeatedly initiated frivolous proceedings, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes (2011), to forward a certified copy of this opinion to the Department of Corrections’ institution or facility where Hastings is incarcerated. See Steele, 14 So. 3d at 224.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

Original Proceeding – Writ of Manadmaus

Jeffrey Robert Hastings, pro se, Jasper, Florida, for Petitioner

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

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

GREGORY A. TAYLOR,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D10-2563

Opinion filed October 5, 2011.

Appeal from the Circuit Court for Pasco County; Pat Siracusa, Judge.

James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Gregory Taylor challenges the revocation of his probation and subsequent five-year sentence on the charge of carrying a concealed firearm. We affirm the revocation of his probation and the sentence based on the trial court’s determination that Taylor willfully and substantially violated his probation by failing to report to the

probation office as required. The order of revocation also reflects that Taylor violated a second condition of probation by changing residences without notification. The trial court could not base this conclusion solely on the hearsay testimony presented at trial. See Thompson v. State, 890 So. 2d 382, 383 (Fla. 2d DCA 2004). We therefore remand for the limited purpose of the entry of an amended order of revocation to reflect that the revocation is based only on the violation for failing to report.

Affirmed and remanded.

ALTENBERND and WALLACE, JJ., Concur.

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

TODD WILLIAM McGATHEY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D10-2732

Opinion filed October 5, 2011.

Appeal from the Circuit Court for Charlotte County; Alane Laboda, Judge.

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.

WHATLEY, Judge.

In this appeal of the order revoking his probation, Todd McGathey argues that the trial court abused its discretion in finding that he violated condition seven based on one positive test showing that he had used cocaine. The affidavit of violation of probation alleged that McGathey violated condition seven by using intoxicants to excess

or possessing any drugs or narcotics. At the revocation hearing, McGathey testified that the night before his drug test someone offered him cocaine and he took two puffs and told them they had to leave. There was no testimony regarding the possession element of condition seven.

We reverse based on Alston v. State, 646 So. 2d 184 (Fla. 1994), in which the supreme court held that a single positive drug test is insufficient to show that a probationer used an intoxicant to excess. As did the supreme court in Alston, we note that McGathey’s admission to using cocaine violates condition five, which directs that the probationer live without violating the law, and that nothing in this opinion precludes the State from initiating new revocation proceedings against McGathey prior to the expiration of his probation. See id. at 185; Blackshear v. State, 838 So. 2d 1228 (Fla. 1st DCA 2003).

Reversed and remanded for further proceedings consistent with this

opinion.

KHOUZAM and BLACK, JJ., Concur.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

STATE OF FLORIDA,

Petitioner,

v.

SUBI TITUS,

Respondent.

No. 4D11-2702

[October 5, 2011]

PER CURIAM.

The State seeks certiorari relief following the trial court’s June 23, 2011 order granting defendant Subi Titus’s motion to disclose the identity of a confidential informant. Titus did not file an affidavit until July 27, 2011—one month after the order issued. The trial court never considered sworn allegations. We, therefore, find that the trial court departed from the essential requirements of the law when it granted disclosure without having sworn allegations of a legally cognizable defense before it. State v. Carter, 29 So. 3d 1217, 1219 (Fla. 2d DCA 2010). We make no determination of Titus’s entrapment defense, on the merits, as doing so would be premature.

We quash the trial court’s order mandating disclosure of the confidential informant’s identity. The court may make new findings based upon sworn allegations in which to determine whether the defendant has met his “burden of showing that disclosure of the CI’s identity is necessary to a specific and available defense . . . .” State v. Rivas, 25 So. 3d 647, 651 (Fla. 4th DCA 2010). If so, the court should then, “conduct an in camera hearing to determine if the CI has anything relevant and helpful to say before ordering disclosure of the CI’s identity.” Id.

Petition granted.

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

* * *

Petition for Writ of Certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael A. Usan, Judge; L.T. Case No. 09-16935 CF10A.

Pamela J o Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for petitioner.

Thomas P. O’Connell of Thomas P. O’Connell, P.A., Fort Lauderdale, for respondent.

Not final until disposition of timely filed motion for rehearing.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

LAFOREST L. WILLIAMS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D09-2735

Opinion filed September 30, 2011.

Appeal from the Circuit Court for Putnam County,

Edward Hedstrom, Judge.

James S. Purdy, Public Defender,

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

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

JACOBUS, J.

Laforest Williams (“Appellant”) timely appeals the judgment and sentence entered after a jury found him guilty of robbery with a firearm. Appellant raises three claims of error on appeal. We find Appellant’ first and second claims are without merit. As to the third claim, however, the court erred in permitting the State to elicit testimony

from Appellant’s wife in violation of the husband-wife privilege.1 We therefore reverse and remand this matter for a new trial.

This case arises out of the armed robbery of an undercover DEA agent. The agent set up a meeting to purchase a substantial amount of drugs at a drug dealer’s home. Upon arrival at the appointed time and place, the agent found the dealer was not home, but his girlfriend was there. While the agent and the girlfriend were standing outside the home, they were approached by two men with guns. The agent was robbed at gunpoint of $11,500 in marked bills. A neighbor who witnessed part of the robbery called 911. During the 911 call, the dealer’s girlfriend spoke to the dispatcher and stated: “Two-Six just robbed him. Two-Six did.”

At trial, the 911 recording was played to the jury. The State also played the girlfriend’s police statement in which she identified Two-Six as the robber, stated Two-Six was Williams, and stated that she was afraid of him. However, at trial the girlfriend denied making any of these statements and denied the veracity of them.

Defense counsel objected to the testimony on the basis of the husband-wife privilege when the State called Appellant’s wife to testify regarding a conversation she had with Appellant. The State made no showing that the statements between Appellant and his wife were not meant to be confidential or that they were made to a third-party. Nonetheless, the court overruled the objection, finding that the conversation between Appellant and his wife was not intended to be confidential. Mrs. Williams testified that Appellant was known as Two-Six on the street, but she knew him as Laforest. She also

1 § 90.504(1), Fla. Stat.

testified that before the robbery Appellant told her that he needed money to pay his attorney in Gainesville.

The State makes two arguments in support of its contention that Mrs. Williams’ statements were properly admitted at trial. First, it contends that Appellant waived the privilege by failing to object to Mrs. Williams’ discovery deposition. During that deposition, Mrs. Williams made the same revelations regarding her conversation with Appellant as she did at trial. Second, the State claims any error in admitting the statements was harmless.

Our supreme court has ruled that even without an objection, the husband-wife privilege is not waived when one spouse gives deposition testimony regarding conversations with the other spouse. See Bolin v. State, 642 So. 2d 540 (Fla. 1994). However, Bolin suggests that using the deposition at trial would waive the privilege. See id. at 541. Here, Appellant did not object to his wife’s deposition and the deposition was never used at trial. Based on these facts, we conclude Appellant did not waive the husband-wife privilege.

We find that Mrs. Williams’ statement regarding Appellant’s street name was not protected by the husband-wife privilege because that information was known generally in the community. However, considering the record before us, we must conclude that the trial court erroneously permitted Mrs. Williams to testify about Appellant’s statement that he needed money to pay his attorney. A communication between a husband and wife is presumed confidential unless there is evidence to the contrary. Blau v. United States, 340 U.S. 332, 333 (1951); Yokie v. State, 773 So. 2d 115, 117 (Fla. 4th DCA 2000). At trial, neither Appellant nor his wife testified whether they meant their

communication to be private or public. Likewise, there was no testimony that the statement was made in the presence of a third party or that Appellant instructed his wife to disclose this information to another person. Without this information, it is impossible to determine whether Appellant’s statement to his wife was privileged and whether that privilege had been waived. As such, the State did not overcome the presumption that the statement is covered by the husband-wife privilege. Therefore, it was error for the trial court to admit Mrs. Williams’ statements over defense counsel’s objection. See Blau, 340 U.S. at 333-34 (noting that government made no effort to overcome marital privilege and communication was likely to be confidential); Yokie, 773 So. 2d at 117.

As to the harmless error claim, the State argues that Mrs. Williams’ testimony was limited and did not involve any admissions of guilt by Appellant. As a result, according to the State, Mrs. Williams’ testimony could not have contributed to the jury’s finding of guilt. To establish harmless error, the State must prove, beyond a reasonable doubt, that the alleged error did not contribute to the verdict. State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986).

In this case, there was evidence to tie Appellant to the robbery. Specifically, the undercover agent positively identified him as one of the robbers. The jury heard the 911 call from the dealer’s girlfriend where she identified “Two-Six” as one of the robbers, and the jury learned that the girlfriend told the police that Laforest “was one of the robbers.” The State also presented evidence that some of the marked money stolen during the robbery was found in Appellant’s lawyer’s office in Gainesville. To link the money to Appellant’s guilt, the State needed to show that Appellant delivered the money to his attorney in Gainesville. The State did so by offering Mrs. Williams’ testimony that

the attorney knew Appellant and that her husband had told her before he was arrested that he needed money to pay his attorney. Without Mrs. Williams’ testimony, the only evidence linking Appellant to the crime would have been the eyewitness identification by the undercover agent and the girlfriend. Defense counsel attacked both of these identifications at trial and weakened their impact during cross-examination. Furthermore, the girlfriend stated that the police coerced her into identifying Appellant as one of the robbers.

Looking at all of the facts, it is apparent that although Mrs. Williams’ testimony was brief, it was vital to the State’s case. Accordingly, it is impossible to determine whether its admission contributed to the jury’s verdict. Therefore, we conclude the erroneous admission of Mrs. Williams’ testimony was harmful. See Bolin, 642 So. 2d at 541 (finding erroneous admission of privileged testimony harmful where statements from Bolin to his wife were integral part of State’s case and reviewing court could not determine whether they played significant role in jury’s determination). For the foregoing reasons, the conviction and sentence are reversed and this matter is remanded for a new trial.

CONVICTION and SENTENCE REVERSED, REMANDED for New Trial.

ORFINGER, C.J. and SAWAYA, J., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

ODALIS CRUZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-1441

Opinion filed September 30, 2011

Appeal from the Circuit Court for Marion County,

Hale R. Stancil, Judge.

James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

We affirm the order clarifying Odalis Cruz’s sentence. However, we strike the imposition of the $2000 fine, the related $100 surcharge, and the $20 Crime-stoppers fine because, as the State concedes, such discretionary fines are not authorized under the habitual violent felony offender sentencing scheme. Wright v. State, 48 So. 3d 926 (Fla. 1st DCA 2010).

Sentence AFFIRMED; specified fines STRICKEN.

SAWAYA, MONACO AND TORPY, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

BRYAN CROSKEY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-1594

Opinion filed September 30, 2011

Appeal from the Circuit Court for Orange County,

Alicia L. Latimore, Judge.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Bryan I. Croskey, Perry, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach,

for Appellee.

PER CURIAM.

We affirm in all respects this Anders1 appeal. However, we remand for correction of the written sentencing order. Since the jury specifically found that Appellant possessed but did not discharge a firearm, the reference to a twenty-year minimum

1 Anders v. California, 386 U.S. 738 (1967).

mandatory and section 775.087(2)(a)2., Florida Statutes (2008), is erroneous and should be stricken from the judgment. See Murphy v. State, 977 So. 2d 748 (Fla. 2d DCA 2008) (in Anders appeal, affirming judgment and sentence and remanding to correct scrivener’s errors in written judgment). The trial judge’s oral pronouncement of a ten-year minimum mandatory sentence pursuant to section 775.087(2)(a), Florida Statutes (2008), was correct and should be set forth in the order.

AFFIRMED AND REMANDED FOR CORRECTION.

MONACO, TORPY and EVANDER, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

J.H., A CHILD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-3538

Opinion filed September 30, 2011

Appeal from the Circuit Court for Orange County,

Thomas W. Turner, Judge.

James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.

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

SAWAYA, J.

J.H. appeals the disposition order, claiming that it violates the prohibition against double jeopardy. We agree and reverse.

J.H. entered a plea of no contest to one count of lewd or lascivious conduct. At the initial disposition hearing, the court orally sentenced 14-year-old J.H. to probation until he turned 19 and ordered 23 hours of community service in lieu of a cash payment

of court costs. The court signed the Department of Juvenile Justice’s (DJJ) proposed plan and the matter concluded. J.H. left the courtroom to begin his probation. The court proceeded to handle other cases.

Fourteen minutes after J.H.’s sentence had been pronounced, J.H. was summoned back to the courtroom at the request of the assistant state attorney, who thought that the sentence needed to be re-addressed in light of her belief that a commitment staffing that had been previously ordered was never completed. The court withdrew the disposition order and ordered that another disposition hearing be held after the commitment staffing was completed. J.H.’s attorney protested that jeopardy had already attached and J.H. had already begun serving his probation. The court announced that it would deal with those concerns at the next disposition hearing. The hearing concluded.

The commitment staffing was held, and the case proceeded to the second disposition hearing several weeks later. This time, the DJJ recommended that J.H. be placed in residential treatment in a moderate-risk program. J.H.’s attorney again objected on the ground that jeopardy had attached at the earlier sentencing. Acknowledging that there “most likely” would be an appeal and that its second sentencing order “may well be overturned,” the court imposed three years in a level six program, ordered 23 hours of community service to cover court costs, and added 20 hours of community service that had not been included in the first order.

The State concedes that if this court determines that the original sentence was valid, double jeopardy was violated by the resentencing. However, it contends that the original sentence was invalid because the court did not have before it a fully completed,

statutorily-required predisposition report at the time of sentencing, which, it argues, is required under section 985.229(1):

A predisposition report shall be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department. A comprehensive evaluation for physical health, mental health, substance abuse, academic, educational, or vocational problems shall be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department. If a comprehensive evaluation report is ordered, the predisposition report shall include a summary of the comprehensive evaluation.

§ 985.229(1), Fla. Stat. (2010). Missing from the predisposition report was a

comprehensive evaluation, and only after the court received the comprehensive evaluation could a sentence be properly imposed, the State asserts, citing K.D. v. State, 911 So. 2d 885 (Fla. 1st DCA 2005) (remanding for new disposition hearing where the predisposition report noted that a comprehensive evaluation had not yet been received as of the date of the report and DJJ had asked that sentencing be continued so it could be obtained; holding that failure to strictly comply with the mandatory statutory requirements for disposition hearings is reversible error and, without the comprehensive evaluation to consider, the court was in violation of the statutory requirements for sentencing).

It appears the State was misled by a predisposition report filed some months earlier that was incomplete, as that is what it cites in support of its argument that the court could not proceed to sentencing in the absence of a comprehensive evaluation. The State is correct that the predisposition report to which it refers was incomplete—it noted on its face the absence of the comprehensive evaluation at the time it was

prepared. However, the record does contain a subsequent, complete predisposition report and comprehensive evaluation. This complete report, along with the DJJ’s proposed plan for probation, was stamped as “Filed in Open Court” on the day of the first disposition hearing. Hence, the State advances an erroneous argument in support of its contention that the original sentence was improper.

As noted above, J.H. was originally sentenced to probation. Probation cannot be revoked or enhanced without first a determination that the probationer violated probation. § 948.06, Fla. Stat. (2010); Burkhart v. State, 974 So. 2d 1203 (Fla. 1st DCA 2008). Without such proof, “a trial court cannot alter an order of probation by revoking or enhancing the terms thereof.” J.D.D. v. State, 12 So. 3d 820, 821 (Fla. 1st DCA 2009). If it does so, it has violated the prohibition against double jeopardy. See Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003) (“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.”); Gardner v. State, 30 So. 3d 629, 632 (Fla. 2d DCA 2010) (holding that the sentencing court lacked authority to call the defendant back for resentencing that increased sentence terms, even if the originally pronounced sentence was illegal for failing to include minimum mandatory term; further holding that it was a violation of double jeopardy protections to increase the sentence after jeopardy attached); T.D.D. v. State, 981 So. 2d 674, 675-76 (Fla. 2d DCA 2008) (agreeing with the state’s concession that second disposition order had to be reversed and new disposition order reflecting court’s earlier oral pronouncement had to be entered); Obara v. State, 958 So. 2d 1019, 1021-22 (Fla. 5th DCA 2007) (reversing resentencing of the defendant where drugs were found on his person ten minutes after the initial sentence

was imposed; holding that jeopardy had attached and possession was not a violation of the terms of his plea agreement); Shepard v. State, 940 So. 2d 545 (Fla. 5th DCA 2006) (holding that the defendant’s double jeopardy rights were violated when the trial court recalled parties 50 minutes after sentencing hearing concluded and changed oral pronouncement of “concurrent” to “consecutive” on one of defendant’s sentences; noting original pronouncement was neither ambiguous nor illegal, and pronouncement became final when sentencing hearing ended); I.B. v. State, 771 So. 2d 1258, 1259 (Fla. 4th DCA 2000) (concluding that the trial court’s action in setting aside a disposition order and then “resentencing appellant after his sentence had already been served” violated double jeopardy).

Here, the trial court had orally pronounced sentence and J.H. had left the courtroom. When J.H. left, he was on probation and had began to serve the sentence imposed at that disposition hearing. Because this original sentence was valid, the court violated the constitutional proscription’ against double jeopardy by sentencing J.H. a second time to a harsher sentence. Accordingly, we reverse the second disposition order and remand this case for reinstatement of the initial disposition order and sentence originally imposed.

REVERSED and REMANDED.

1 Art. I, § 9, Fla. Const.

GRIFFIN and COHEN, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

FRANK WHITE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-2522

Opinion filed September 30, 2011

Appeal from the Circuit Court for Orange County,

Walter J. Komanski, Judge.

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

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

COHEN, J.

Frank White appeals his conviction of second-degree murder with a firearm and attempted robbery.1 The only issue raised on appeal is whether the jury instruction on manslaughter by procurement was fundamental error. No error is assigned as to the attempted robbery conviction.

White and an accomplice, Trent Harris, were robbing individuals seeking to purchase drugs at a location well-known for drug sales. The victim, who apparently intended to purchase drugs, drove his vehicle to this location where he was accosted by White and Harris. During the course of the attempted robbery, Harris shot the victim in the neck and back, killing him.

Based on White’s role in the offense, the trial court instructed the jury, without objection, on manslaughter by procurement as a lesser included offense to the first-degree murder charge. White argues that the instruction was erroneous and constituted fundamental error.

In Barton v. State, 507 So. 2d 638 (Fla. 5th DCA 1987), we examined manslaughter by act in the context of a double jeopardy challenge. In dicta, we stated, “The words ‘act’ and ‘procurement’ obviously refer to acts evidencing an intent to kill, as required at common law for voluntary manslaughter.” Id. at 641. While defendants charged with voluntary manslaughter, as in Barton, have argued that it required a showing of an intent to kill, defendants charged with first or second-degree murder, seeking to give the jury the option of a lesser included offense, have argued the opposite: that intent to kill was not an element of the offense.

In Montgomery v. State, 34 Florida Law Weekly D360, D361-62 (Fla. 1st DCA Feb. 12, 2009), the First District ruled that manslaughter by act “requires only an intentional unlawful act, rather than an intent to kill[,]” and certified conflict with Barton. The supreme court accepted jurisdiction and, in State v. Montgomery, 39 So. 3d 252, 256 (Fla. 2010), ruled that under Florida law, the crime of manslaughter by act does not require proof of an intent to kill. Critical to this analysis was the court’s observation that:

[I]mpos[ing] such a requirement on a finding of manslaughter by act would blur the distinction between first-degree murder and manslaughter. Moreover, it would impose a more stringent finding of intent upon manslaughter than upon second-degree murder, which, like manslaughter, does not require proof that the defendant intended to kill the victim.

Id. However, Montgomery did not address manslaughter by procurement.

Section 782.07(1), Florida Statutes (2010), defines manslaughter as follows:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

At the time of White’s trial, the standard jury instructions on manslaughter by procurement provided in relevant part:

To prove the crime of [m]anslaughter, the State must prove the following two elements beyond a reasonable doubt:

1. (Victim) is dead. . . . .

2. b. (Defendant)[2] intentionally procured the death of (victim).

. . . .

To “procure” means to persuade, induce, prevail upon or cause a person to do something.

Fla. Std. Jury Instr. (Crim.) 7.7. White suggests that instruction suffers from the same defect found in Montgomery. We agree.

2 The trial court added “or his principal” to the instruction.

The standard jury instruction for manslaughter by procurement required the State to prove that White procured the death of the victim. While we agree with the State’s position that procurement requires an intentional act, as instructed, it is the victim’s death being procured. The average juror would likely interpret the instruction as requiring a finding that, in advance of the actual killing, the defendant intentionally persuaded, induced, prevailed upon, or caused a person to kill. The purpose of the procurement was to effect the death of another. As was the case in Montgomery, this instruction blurs the distinction between manslaughter by procurement and premeditated first-degree murder, and imposes a more stringent finding of intent than upon that of second-degree murder. In Montgomery, the supreme court found “the relevant intent is the intent to commit an act which caused death[.]” 39 So. 3d at 257. We agree with White that what is procured under manslaughter by procurement is an act that results in the victim’s death.3 That was not what the jury was asked to determine. Instead, the jury was asked to decide whether White procured the death of the victim, in effect, requiring the jury find that White intended the victim’s death. Consequently, we feel bound by the analysis in Montgomery to find that, despite the lack of a contemporaneous objection, the error was fundamental.

AFFIRMED IN PART, REVERSED IN PART; and REMANDED for a new trial on the second-degree murder charge.

ORFINGER, C.J., and JACOBUS, J., concur.

3 We are aware that in April 2010, the Florida Supreme Court authorized, on an interim basis, the publication and use of an amended jury instruction on manslaughter by procurement. In re Amendments to Standard Jury Instructions in Criminal Cases-Instruction 7.7, 41 So. 3d 853 (Fla. 2010), reh’g denied (July 22, 2010). The relevant instruction now reads: “2. b. (Defendant) procured the death of (victim).” Id. at 854. The supreme court does not warrant the correctness of standard jury instructions.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

KARL ALAN SCHOENWALDER,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 5D11-2650

Opinion filed September 28, 2011

Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction.

Robert Wesley, Public Defender Ninth Judicial Circuit and Joanna G. Snow, Assistant Public Defender, Orlando for Petitioner.

Pamela Jo Bondi, Attorney General,

Tallahassee and Megan Saillant,

Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

Karl Alan Schoenwalder (Petitioner) filed a petition for writ of habeas corpus challenging the trial court’s imposition of a ninety-day sentence for Petitioner’s direct criminal contempt. Petitioner argues that his actions did not rise to the level of a criminal contempt and that he is being illegally detained because of a denial of due process under Florida Rule of Criminal Procedure 3.830. We agree in part.

Petitioner’s conduct clearly constituted a direct criminal contempt of the court. A review of the audio recording of the hearing held below reveals that Petitioner utilized his arraignment on criminal charges to advance his personal agenda and to usurp the objective of the proceedings. Upon being castigated by the trial court for this behavior, Petitioner continued to interrupt the court and to regale all present with his beliefs regarding testimony, oaths, affirmations and appearance for his arraignment.

While we agree with the trial court that Petitioner’s unacceptable behavior constituted a criminal contempt of the court, we must grant Petitioner’s request for relief based on the inadequacy of the contempt hearing. Before being adjudicated guilty of his contemptible behavior, Petitioner was entitled to “the opportunity to present evidence of excusing or mitigating circumstances.”1 Fla. R. Crim. P. 3.830. Petitioner did not receive this opportunity. Beyond a perfunctory request whether there was just cause not to hold Petitioner in contempt, the trial court did not provide Petitioner with the opportunity to present evidence of excusing or mitigating circumstances. A trial court’s failure to afford a defendant this opportunity constitutes fundamental error. See Garrett v. State, 876 So. 2d 24 (Fla. 1st DCA 2004).

In light of the trial court’s omission, the petition for habeas corpus relief is granted to the extent that the trial court shall hold a proper proceeding as mandated by the rule and allow Petitioner the opportunity to present evidence excusing or mitigating the circumstances of his behavior.

1 A subsequent hearing was held on August 9, 2011, upon the defense’s motion for supersedeas bond and to argue that contempt was improper. At that proceeding, the court simply stated that a review of the contempt proceeding would be conducted; it did not afford Petitioner an opportunity to present excusing or mitigating circumstances with regard to the contempt.

PETITION GRANTED and REMANDED WITH INSTRUCTIONS.

SAWAYA, MONACO and EVANDER, JJ., concur.

Courtesy of David Edelstein

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