Florida Criminal Law Opinions

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2012

BASIL BURFORD,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D10-2205

[January 25, 2012]

PER CURIAM.

Basil Burford petitions this court for a writ of habeas corpus alleging that appellate counsel was ineffective for failing to raise one issue of fundamental error. We agree and grant the petition.

While fleeing from an officer attempting to make a traffic stop, the petitioner ran through a red light where his vehicle collided with a pickup truck, killing the other driver. He was convicted of one count of manslaughter by culpable negligence, vehicular homicide, and fleeing a law enforcement officer. On direct appeal, we affirmed his manslaughter conviction; however, we remanded for the trial court to vacate the vehicular homicide count—a lesser included offense of manslaughter by culpable negligence—as it violated double jeopardy. See Burford v. State, 8 So. 3d 478 (Fla. 4th DCA 2009).

Burford correctly points out that the trial court failed to instruct the jury on justifiable and excusable homicide in connection with the manslaughter instruction. This court has previously recognized this to be fundamental error and found appellate counsel ineffective for not raising it. See Jenkins v. State, 990 So. 2d 702, 703 (Fla. 4th DCA 2008).

The State concedes that the instruction was not read, but argues that failure to give the instruction is not per se fundamental error, relying on cases such as Pena v. State, 901 So. 2d 781, 786 (Fla. 2005), and Franco v. State, 901 So. 2d 901 (Fla. 4th DCA 2005). In Franco, the trial court did not read the excusable homicide instruction in connection with the manslaughter charge, but did read it as part of second-degree murder.

This court found that it was not fundamental error as to those facts. Id. at 904–05. Unlike in Franco, the instruction here was not read at all. See Jenkins, 990 So. 2d at 703. “In all murder and manslaughter trials, the jury must be instructed as to the definitions of justifiable and excusable homicide.” Black v. State, 695 So. 2d 459, 460 (Fla. 1st DCA 1997) (citing State v. Smith, 573 So. 2d 306 (Fla. 1990)).

In Jimenez v. State, 994 So. 2d 1141, 1142 (Fla. 3d DCA 2008), the Third District noted:

“[B]ecause manslaughter is a ‘residual offense, defined by reference to what it is not,’ a complete instruction on manslaughter requires an explanation that justifiable and excusable homicide are excluded from the crime.” State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994) (citations omitted). “[F]ailure to give a complete instruction on manslaughter during the original jury charge is fundamental error which is not subject to harmless-error analysis where the defendant has been convicted of either manslaughter or a greater offense not more than one step removed, such as second-degree murder.” Id.

As to the State’s suggestion that the facts, themselves, do not support excusable homicide, we reject this argument in accordance with Black, 695 So. 2d at 460 (“It matters not whether any view of the evidence could support a finding of either excusable or justifiable homicide.”).

We grant the petition alleging ineffective assistance of appellate counsel and remand for a new trial. See Jenkins, 990 So. 2d at 702.

Petition Granted.

STEVENSON, GERBER and CONNER, JJ., concur.

* * *

Petition alleging ineffective assistance of appellate counsel to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Pedro Dijols, Judge; L.T. Case No. 05-16088 CF10A.

Deana K. Marshall of the Law Office of Deana K. Marshall, P.A., Riverview, and Basil Burford, Arcadia, for petitioner.

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

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

January Term 2012

STACY SANDERS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-3865

[January 25, 2012]

CIKLIN, J.

In this appeal, we address the limits of Florida’s jurisdiction over a defendant whose alleged criminal acts occurred on an airplane outside of Florida. Stacy Sanders appeals the trial court’s denial of her motion to dismiss the single charge of grand theft against her. Because the charged crime was completed before Sanders entered Florida, we find that the trial court should have granted the motion to dismiss for lack of jurisdiction. As such, we reverse and remand for entry of an order granting the motion to dismiss.

On June 25, 2009, Sanders, a passenger on a commercial flight from Phoenix, Arizona to Fort Lauderdale, Florida, allegedly stole $500 from a fellow passenger’s purse. A flight attendant intervened and compelled Sanders to return the money. This all occurred approximately forty-five minutes before the airplane landed in Fort Lauderdale. Both Sanders and the state conceded that the plane was not in Florida’s territory at any point when the theft or recovery of the money took place. When the plane landed, Sanders was arrested by the Broward County Sheriff’s Office and later charged by the state with grand theft in excess of $300.

Sanders filed a motion to dismiss the charge for lack of jurisdiction. Sanders argued that pursuant to section 910.005, Florida Statutes (2008), Florida did not have jurisdiction over her for the alleged theft because all of the elements of the theft occurred before the plane reached Florida. The state argued that Sanders would have had to leave the plane with the victim’s money after the plane landed in Florida in order to permanently deprive her of it; therefore, according to the state,

Sanders’s actions constituted an attempt to commit the crime of grand theft in Florida. The trial court was persuaded by the state’s argument and denied the motion to dismiss. Sanders then pled no contest to the grand theft, reserving her right to appeal the trial court’s denial of the motion to dismiss.

“The standard of review of a trial court’s denial of a motion to dismiss is de novo.” Simpson v. State, 33 So. 3d 776, 778 (Fla. 4th DCA 2010).

“Jurisdiction is the very power of the state to exert the influence of its courts over a criminal defendant . . . .” Lane v. State, 388 So. 2d 1022, 1026 (Fla. 1980). Florida’s criminal jurisdiction statute provides, in relevant part:

(1) A person is subject to prosecution in this state for an offense that she or he commits, while either within or outside the state, by her or his own conduct or that of another for which the person is legally accountable, if:

The offense is committed wholly or partly within the state;

The conduct outside the state constitutes an attempt to commit an offense within the state . . . .

§ 910.005(1), Fla. Stat. (2008).

Sanders contends that the alleged grand theft does not fall under either paragraph (a) or (b) of subsection 910.005(1). The trial court based its denial of the motion to dismiss on the notion—advanced by the state on appeal—that Sanders’s actions constituted an attempt to commit grand theft within Florida, thus falling under paragraph (b).

This issue is complicated by the theft statute itself, which is unique in that it encompasses both the completed offense and the attempt as the same offense. See § 812.014(1)(a), Fla. Stat. (2008) (“A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently . . . [d]eprive the other person of a right to the property or a benefit from the property.”); Colletti v. State, 36 Fla. L. Weekly D1851 (Fla. 2d DCA Aug. 19, 2011) (“[T]here is no separate crime of attempted theft.”); Brown v. State, 414 So. 2d 15, 16 (Fla. 5th DCA 1982) (“The crime of theft encompasses not only the completed theft but also the attempt to steal.”).

It is apparent that Sanders allegedly committed all of the elements of theft prior to the plane’s entering Florida’s territory. When Sanders took physical possession of the victim’s money, she would no longer be “endeavor[ing] to obtain” the victim’s property because she would have already obtained the victim’s property with the intent to permanently deprive her of it. This means that the theft was fully executed before the plane reached Florida.1 Sanders could not be “endeavor[ing] to obtain” the victim’s property because she already had done so. Thus, the theft was not “committed wholly or partly within” Florida, so paragraph (a) of subsection 910.005(1) does not apply. Further, because the crime was completed the moment she obtained the victim’s money with the intent to deprive her of it permanently, Sanders’s actions on the plane could not “constitute[] an attempt to commit an offense within” Florida under 910.005(1)(b).

In denying the motion to dismiss, the trial court relied primarily on a previous case from this court, State v. Saunders, 508 So. 2d 473 (Fla. 4th DCA 1987), which we find factually distinguishable. In Saunders, the defendant was charged with possession of cannabis in excess of twenty grams after the U.S. Coast Guard boarded his boat in international waters forty miles east of Fort Lauderdale and discovered what amounted to seventy pounds of cannabis.2 Id. at 474. The state offered sufficient facts to infer that the defendant was returning to Fort Lauderdale when the boat was boarded. The defendant filed a motion to dismiss for lack of jurisdiction under subsection 910.005(1), which the trial court granted.

On appeal, we reversed the dismissal of the charge, finding that the defendant’s actions amounted to an attempt to commit the crime of possession within Florida, and therefore paragraph (b) of subsection 910.005(1) controlled. We concluded that the defendant’s actions outside of Florida—possessing cannabis on a boat headed for Florida— amounted to an attempt to commit the offense of possession within Florida. While it was not explicitly stated in the opinion, it is important to note that drug possession offenses typically are ongoing by nature. See, e.g., Menendez v. State, 521 So. 2d 210, 212 (Fla. 1st DCA 1988) (“Appellant’s trafficking offense, as with many drug possession offenses, was essentially ongoing. Appellant was in violation of the law during the

1 In fact, Sanders could have had a change of heart immediately afterward and returned the money to the victim and the theft offense still would have been complete—before the plane reached Florida.

2 It is unclear why the defendant was not charged with more than possession over twenty grams given the substantial amount of cannabis discovered on the boat.

entire time he was in possession . . . .”).

While the defendants’ names and the jurisdiction issues presented are similar, ultimately Saunders and the instant case are not analogous. The key difference is the charged crimes in each case. In Saunders, jurisdiction was found because the defendant’s actions constituted an attempt to possess cannabis in Florida. The crime of possession was ongoing and would have continued in Florida had the defendant not been intercepted by the Coast Guard. In the instant case, all of the elements of the crime of theft occurred on the plane before it reached Florida’s territory, so it could not be classified as an attempt to commit the offense in Florida.

We find Battle v. State, 365 So. 2d 1035 (Fla. 3d DCA 1978), more on point. In Battle, the defendant appealed his conviction for solicitation of a felony. He argued that Florida did not have jurisdiction over him for the crime of solicitation because the undisputed evidence indicated that all of the acts related to the solicitation itself took place in New Jersey. Id. at 1036. The only possible connection to Florida was that the solicitee traveled to Florida after the solicitation allegedly to commit the solicited offense. The Third District concluded:

[T]he solicitation was complete after it was made and no element of the crime of solicitation took place in Florida; therefore, Florida was without jurisdiction to try appellant for this offense. In this case, although the acts solicited were to b e performed in Florida, the crime charged in the indictment of solicitation was committed wholly outside Florida.

Id. at 1037. The facts from Battle are analogous to the instant case, in which the charged offense—grand theft—was completed before the airplane reached Florida’s territory. Thus, we find that the trial court should have granted the motion to dismiss because all of the elements of grand theft occurred entirely before the plane reached Florida’s territory.

In conclusion, we reverse the order denying the motion to dismiss and remand with instructions for the trial court to enter an order granting the motion to dismiss.

Reversed and remanded with instructions. GERBER and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No. 09-11832 CF10A.

Richard L. Rosenbaum of Arnstein & Lehr LLP, Fort Lauderdale, for appellant.

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2012

ATTICUS E. JONES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-3951

[ January 25, 2012 ]

PER CURIAM.

Atticus E. Jones appeals the summary denial of his Rule 3.800(a) motion, which challenged the sufficiency of the evidence to support his conviction. Rule 3.800(a) cannot be used to challenge the conviction or the sufficiency of the evidence. See Edwards v. State, 35 So. 3d 121 (Fla. 4th DCA 2010); Childers v. State, 782 So. 2d 946 (Fla. 4th DCA 2001); Marshall v. State, 35 So. 3d 121 (Fla. 4th DCA 2010).

Affirmed.

WARNER, POLEN and TAYLOR, JJ., concur.

* * *

Appeal of order denying rule 3.800 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Nelson Bailey, Judge; L.T. Case No. 2009CF006570AXX.

Atticus E. Jones, Pahokee, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2012

JOSEPH D. HURT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-4598

[January 25, 2012]

PER CURIAM.

Joseph D. Hurt appeals the summary denial of his Rule 3.850 motion. Hurt claimed that counsel performed deficiently in failing to advise him sooner regarding how much time he would actually serve in prison pursuant to a plea offer that had been extended by the State. The State withdrew the offer before it was formally accepted by the court, and Hurt then entered a voluntary open plea to the court and received a legal sentence. We conclude that appellant failed to state a cognizable claim of ineffective assistance of counsel and affirm.

Background

In May 1992, Hurt pleaded guilty to the following: (I) armed burglary; (II) burglary of a dwelling; (III) and (IV) grand theft; (V) resisting arrest without violence; (VI) fleeing and eluding a police officer; and (VII) operating a vehicle with no valid driver’s license. The court sentenced him as follows: (I) fifteen years in prison as a habitual felony offender; (II) fifteen years probation consecutive to Count (I); (III) and (IV) five years concurrent to Count (I); and (V),(VI), and (VII) time served. He did not appeal.

On October 22, 2008, he admitted violating probation for the burglary of a dwelling charge. The court sentenced him to fifteen years in prison which, according to the State’s response below, was a downward departure from the recommended seventeen to twenty-two year sentence under the guidelines and the possible twenty-two to twenty-seven year sentence with the bump for the violation of probation.

On July 16, 2010, Hurt filed this Rule 3.850 motion. Hurt alleged that, on August 7, 2008, counsel conveyed the State’s eight-year plea offer. Hurt was allegedly concerned about how much time he would actually have to serve in prison. Counsel was not sure whether the 85% rule of the Stop Turning Out Prisoners Act1 would apply to the eight-year sentence under the plea offer. Hurt alleges that he declined the offer based on his lack of knowledge about the amount of time he would actually have to serve in prison.

At a September 4, 2008 hearing, defense counsel, at Hurt’s request, asked the State whether the offer was still open and how much time Hurt would actually serve. The offer remained open, but the State was also not sure whether the 85% rule would apply.

Finally, at the October 23, 2008 hearing, counsel gave Hurt “good news” that, because the offense was old, he would have to serve only 55 to 65% of the eight-year sentence offered in the plea deal. Hurt wanted to accept the deal, but the prosecutor would not agree to it and rescinded the offer. Hurt then admitted the violation.

In this post-conviction motion, Hurt claimed that his counsel was ineffective in failing to advise him sooner as to the amount of time he would actually serve in prison. He alleges that he would have taken the eight-year plea offer if he had known he would have to serve only 55 to 65% of the eight-year offer. The State argued that the claim did not establish a basis for relief because Hurt had not alleged that counsel gave him any incorrect advice. The trial court agreed and denied the motion. Hurt appeals.

1 Section 944.275(4)(b)3., Florida Statutes, provides in relevant part:

For sentences imposed for offenses committed on or after October 1, 1995, the department may grant up to 10 days per month of incentive gain-time, except that no prisoner is eligible to earn any type of gain-time in an amount that would cause a sentence to expire, end, or terminate, or that would result in a prisoner’s release, prior to serving a minimum of 85 percent of the sentence imposed.

(emphasis supplied).

Analysis

In a plea case, the prejudice necessary to establish an ineffective assistance of counsel claim is set out in Hill v. Lockhart, 474 U.S. 52 (1985): “[A] reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Id. at 59. Hill recognized that the voluntary and intelligent character of a plea may be challenged on the ground that counsel failed to act within the range of competence required of criminal defense attorneys. Id. at 56. The focus when considering prejudice in a Hill claim is on the voluntariness of the plea and the waiver of trial and attendant rights. Florida, however, has recognized that Hill prejudice can arise from lost plea offers.

In Morgan v. State, 991 So. 2d 835 (Fla. 2008), the supreme court recognized that an attorney’s advice that a client reject a plea offer can state a sufficient claim of ineffective assistance of counsel. Id. at 840. The Morgan court reaffirmed the holding of Cottle v. State, 733 So. 2d 963 (Fla. 1999), that to establish an ineffective assistance of counsel claim regarding lost plea offers, the movant must show that: (1) counsel failed to convey an offer or misadvised the movant about the penalty faced; (2) the movant would have accepted the plea offer; and (3) the plea would have resulted in a lesser sentence. 991 So. 2d at 839-40.

Here, the initial eight-year plea offer in Hurt’s case was not binding and, on its own, had no constitutional significance. The plea offer had no constitutional significance until accepted by the court: “A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.” Mabry v. Johnson, 467 U.S. 504, 507-08 (1984), disapproved on other grounds, Puckett v. U.S., 556 U.S. 129 (2009). See also Fla. R. Crim. P. 3.172(g) (“No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.”); Harden v. State, 453 So. 2d 550, 551 (Fla. 4th DCA 1984) (“[F]ormal acceptance of a plea occurs when the trial court affirmatively states to the parties, in open court and for the record, that the court accepts the plea.”).

As this case illustrates, during negotiations, plea offers are often extended based on incomplete facts regarding the circumstances of the

offense, the defendant’s prior record, the applicable laws, and other salient factors. As a result, plea offers are subject to withdrawal at any time before formal acceptance by the court. Counsel’s inability to immediately provide perfect advice about the wisdom of accepting a plea offer, which results in the loss of what in hindsight turns out to have been a favorable plea offer, does not result in the type of prejudice necessary to establish a violation of the Sixth Amendment right to effective counsel. Th e defendant has n o constitutional right to enforcement of any plea bargain until the plea is formally accepted by the court.

Thus, even if counsel had obtained the information regarding the actual time Hurt might serve in prison sooner, and if Hurt had agreed to accept the eight-year offer, the State could still have rescinded the offer.2

Here, unlike the claims recognized as sufficient in Morgan and Cottle, defense counsel did not fail to convey a plea offer, advise appellant to reject a plea offer, or misadvise the defendant about the maximum penalty faced.

Plea offers are not binding and a defendant has no vested right to any particular plea offer extended during negotiations. At best, defendant has an expectation that the offer will not be rescinded and will be accepted by the court. Further, the lost plea offer has no impact whatsoever on the defendant’s subsequent voluntary and intelligent plea. In addition to the problems illustrated by this case, courts have struggled to fashion an appropriate remedy in such cases. See Lester v. State, 15 So. 3d 728, 730-32 (Fla. 4th DCA 2009). Reopening a case for further plea negotiations following a conviction after a fair jury trial is a result that is unfair to the State. See id. at 733-34 (Gross, J., concurring specially). The defendant may end up with no better sentence following renegotiation, and if plea negotiations fail, the State will have to retry a defendant who already received a fair trial. A lost plea offer should not be an actionable basis for an ineffective assistance of counsel claim.

2 Because it affects the wisdom and not the voluntariness of the waiver of the right to jury trial and other associated rights, a claim that counsel misadvised the defendant as to the amount of time that he or she might “actually serve” pursuant to a plea deal is also of questionable constitutional significance. See Gusow v. State, 6 So. 3d 699, 702-03 (Fla. 4th DCA 2009) (citing United States v. Smith, 440 F.2d 521, 528-29 (7th Cir. 1971)). The sufficiency of such claims, however, has been recognized. State v. Leroux, 689 So. 2d 235 (Fla. 1996).

Conclusion

We decline to extend the holding of Morgan to the situation presented here. Counsel did not advise Hurt to reject the eight-year plea offer. Counsel did not fail to convey the plea offer or misadvise Hurt as to maximum penalty faced. Hurt failed to establish that he was prejudiced by the alleged deficient performance of counsel.

Affirmed.

DAMOORGIAN, GERBER and LEVINE, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch, IV, Judge; L.T. Case No. 91-22902 CF10A.

Joseph D. Hurt, Punta Gorda, pro se.

No response required for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2012

CHARLENE ROSA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D11-3666

[January 25, 2012]

PER CURIAM.

Charlene Rosa appeals the order entered by the trial court denying her motion seeking post-conviction relief pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Prior to the entry of the order, Rosa filed a timely amended motion under rule 3.850, upon which the trial court did not rule. We remand this case to the trial court for further proceedings on Rosa’s remaining claims raised in her amended motion for post-conviction relief.

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

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Senior Judge; L.T. Case No. 04-10827 CF10A.

Charlene Rosa, Fort Lauderdale, pro se.

Pamela J o Bondi, Attorney General, Tallahassee, a n d Heidi Bettendorf, 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

January Term 2012

WAYNE TREACY,

Petitioner,

v.

AL LAMBERTI, as Sheriff of Broward County, Florida,

Respondent.

No. 4D11-4645

[January 25, 2012]

GROSS, J.

Petitioner, a juvenile, is charged with attempted first degree premeditated murder with a deadly weapon, a life felony. In this petition for writ of habeas corpus, he contends that Graham v. Florida, 130 S. Ct. 2011 (2010), entitles him to bond as a matter of right. We reject this argument and deny the petition.

In Graham, the Supreme Court held that the “Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 130 S. Ct. at 2034. The Florida legislature has not enacted a parole system that would satisfy Graham by allowing juvenile defendants sentenced to life in prison a chance to be released. Therefore, life sentences for such juveniles are now subject to reversal based on Graham. See, e.g., Cunningham v. State, 74 So. 3d 568 (Fla. 4th DCA 2011); Garland v. State, 70 So. 3d 609 (Fla. 1st DCA 2010).

Graham, however, does not impact petitioner’s bond because the language of Article I, Section 14 of the Florida Constitution focuses on the classification of the offense to determine entitlement to pretrial release, and not the potential severity of punishment.

We adopt the well-reasoned analysis of Circuit Judge David Haimes in his July 2, 2010 order denying petitioner’s motion to set bond:

Article I, section 14, of the Florida Constitution, Pretrial Release and Detention, provides as follows:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Id. (emphasis added); see also Fla. R. Crim. P. 3.131(a). Here, the defendant is charged with Attempted Murder in the First Degree (Premeditated) with the use of a deadly weapon. Under Florida Statutes, Sections 782.04(1)(a), 777.04(b), and 775.087(1)(a), the offense charged is a “life felony.”

Based upon the . . . reading of the plain language contained in Article I, section 14, of the Florida Constitution and Rule 3.131 of the Florida Rules of Criminal Procedure, the Court finds that the offense of Attempted Murder in the First Degree (Premeditated) with the use of a deadly weapon is clearly an “offense punishable by life imprisonment.”

Graham . . . does not change the statute with respect to the defendant’s right to bond in the present case. The specific holding in Graham is as follows:

The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. 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. The judgment of the First District Court of Appeal of Florida affirming Graham’s conviction is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Graham, 130 S. Ct. at 2034 (emphasis added). Even though [the circuit court] could not impose a life sentence without the possibility of parole in the present case, based upon the Graham opinion and th e Eight [sic] Amendment, this restriction does not change the classification of the offense

charged as a life felony. Therefore, the offense of Attempted Murder in the First Degree (Premeditated) with the use of a deadly weapon remains a n “offense punishable b y life imprisonment” [within the meaning of Article I, section 14 of the Florida Constitution].

(Footnotes omitted).

We also agree with the trial court’s conclusion that its “classification” approach is supported by Batie v. State, 534 So. 2d 694 (Fla. 1988) (holding that a person convicted of capital sexual battery was ineligible for postconviction bond, though the offense no longer was punishable by death, considering statutes and rules for legislative and judicial intent at time of enactment to determine other consequences of a crime); State v. Hogan, 451 So. 2d 844, 845 (Fla. 1984) (“The degree of the crime is what the legislature says it is, and, just because a portion of a crime designated ‘capital’ cannot be carried out, the degree is not lessened, at least not for the purposes of setting penalties for ‘attempt’ crimes.”); and Florida Parole Commission v. Criner, 642 So. 2d 51 (Fla. 1st DCA 1994) (holding that parole commission properly treated defendant’s crime of rape as capital felony for purposes of calculating defendant’s parole release). In other words, sentencing, the focus of Graham, and entitlement to pretrial release are two different issues.

It must be noted that Graham did not purport to change this state’s classification of attempted first degree murder with a deadly weapon as a life felony, nor did it actually even prohibit the imposition of a life sentence on a juvenile who is convicted of a non-homicide crime; it prohibited only the imposition of a life sentence without any “realistic opportunity to obtain release” before the end of the life term. 130 S. Ct. at 2034. Thus, were the legislature to enact a parole system for juveniles who have been sentenced to life for non-homicide offenses, this issue would not even arise.

Furthermore, during the time when the sentencing guidelines were in effect, a life sentence actually was not a realistic prospect for many defendants who were charged with offenses punishable by life in prison. If their points generated a sentencing range of a term of years, they could not be sentenced to life unless reasons for an upward departure from the guidelines could be demonstrated. See Fla. R. Crim. P. 3.701(d)(12), 3.702(d)(18), 3.703(d)(30). Nevertheless, such defendants simply had no right to bond as a matter of law unless the state could not meet the standard of State v. Arthur, 390 So. 2d 717 (Fla. 1980).

HAZOURI, J., concurs.

POLEN, J., concurs specially with opinion.

POLEN, J., concurring specially.

I agree with the result reached in the majority opinion, adopting the well-reasoned analysis of Judge Haimes. I write separately to acknowledge that in another case, by order, we granted a writ of habeas corpus based on Graham v. Florida, 130 S. Ct. 2011 (2010). I was on that panel as well, but now recognize our analysis in McCray1 did not take into consideration some of the points brought out by Judge Gross’ majority opinion. As there was no published opinion in McCray, there is no need to consider this issue en banc. While I do not advocate certifying this issue, it may well be that our supreme court may ultimately address this issue.

* * *

Petition for writ of habeas corpus to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; David Haimes, Judge; L.T. Case No. 10-6720CF10A.

Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, and Russell J. Williams of Law Offices of Russell J. Williams, P.A., Fort Lauderdale, for petitioner.

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

Not final until disposition of timely filed motion for rehearing.

1 McCray v. Lamberti, No. 4D11-3884 (Fla. 4th DCA Nov. 8, 2011).

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2012

PARMANAND MAHARAJ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-491

[January 18, 2012]

GERBER, J.

The defendant appeals his convictions for sexual battery on a person less than twelve years of age, lewd and lascivious molestation, and providing obscene material to a minor. He raises several arguments, three of which have merit: (1) the trial court erred in not finding that the state opened the door to certain cross-examination questions; (2) the trial court erred in not allowing impeachment of the child’s testimony; and (3) the trial court erred in overruling his objection to a portion of the state’s closing argument. We address these three arguments in turn.

Opening the Door

The child’s mother read statements in the child’s notebook which prompted the mother to contact the police about the defendant. During the state’s case-in-chief, the state played for the jury an audiotape containing a series of controlled calls between the mother and the defendant involving the notebook. On the first call, the mother told the defendant: “I found a notebook and I just want to make sure, I don’t think these are true some of the stuff I was reading, and maybe she doesn’t have the story right.” The defendant told the mother he would call her back.

On a later call, the mother again referred to the notebook, prompting the following exchange:

Mother: . . . [A]m I reading too much into this? . . . This is what I

think happened. [The child] walked into your house [and] you

were watching porn, maybe you’re a little embarrassed, I don’t care but I’m going to be [angry] at her for walking into your house when – I think [the child] walked right into your house and [you] were watching [a] porno movie and you were embarrassed, and that’s what I think exactly happened, but I want to hear from you exactly what happened. If that’s the case, I know I raised [the child] better than that, is that what [the child] did, just walked right in your house?

Defendant: That’s right. . . . .

Mother: . . . Then I know there was something else [the child] wrote about. She wrote about something too about kissing somebody, but I understand if that’s the case that it happened, I’ll punish [the child] for that, but the other thing she said something about kissing, I think all she did, all she was referring to . . . is her and her friend was trying to outdo each other, I seen her hugging you and your wife, she likes you guys, I think that’s what she had seen, maybe you had kissed her on the cheek . . . maybe that’s what she’s referring to; could that be?

Defendant: That’s it. . . . .

Mother: All right, then I’ll deal with [the child] writing stuff like that, because I don’t want you to get into trouble for something you didn’t do, this is – this can hurt somebody, okay, I’ll talk with [the child].

After the state played these calls, the defendant requested the trial court’s permission to cross-examine the mother on the notebook’s contents. The defendant proffered the notebook’s contents:

I, in a public pizza after drinking a soda, was a famous radio announcer, and I know a – me and tried to do, I am a year old boy in – I’ve a – I’ve got an – on a – I never showed my mom I was in two grade. I also got one in three grade. I – a – and made him, the same guy got big plants, so he could hide one chair and do nasty things. He showed me, he kissed me and forced me to kiss his blank ER and shoved his hand down my pants.

The guy got Chinese while his wife was in Canada, and put a sleeping pill in my Pepsi and gave it to my aunt. One time at school my mom dropped me of with $20 for picture money, and I flunked school, and I went to the movie and Publix.

The defendant requested the trial court’s permission before proceeding because the court, earlier in the trial, had ruled that the notebook’s contents were irrelevant and hearsay. Following the playing of the calls, however, the defendant argued, “I think it’s relevant that portions come in now . . . the jury’s left with the impression that [the child] had a notebook that addressed only [the defendant], that’s not true.” The court ruled that it would allow the defendant to ask the mother if there was anything in the notebook which named the defendant, “[b]ut you can’t ask her . . . what was in the notebook based on my prior ruling.”

The defendant argues that the trial court erred in not finding that the state opened the door to allowing him to cross-examine the mother about the notebook’s contents. The state argues that any error was harmless because the court allowed the defendant to elicit from the mother that the notebook did not refer to him by name.

The standard of review of a determination of whether a party has opened the door is abuse of discretion as limited by the rules of evidence. Shermer v. State, 16 So. 3d 261, 265 (Fla. 4th DCA 2009) (citation omitted). As we recently stated in Siegel v. State, 68 So. 3d 281 (Fla. 4th DCA 2011):

The evidentiary concept of “opening the door” allows the admission of otherwise inadmissible testimony to qualify, explain, or limit testimony or evidence previously admitted. This principle is premised on considerations of fairness and the truth-seeking function of a trial. In order to open the door, the witness must offer misleading testimony or make a specific factual assertion which the opposing party has the right to correct so that the jury will not be misled.

Id. at 288 (citations and other internal quotations omitted).

Applying those standards here, we conclude the trial court erred in not finding that the state opened the door to allowing the defendant to cross-examine the mother about the notebook’s contents. The mother’s comments during the calls would have left a reasonable juror with the impression that the notebook referred to the defendant. This impression likely would not have been alleviated by the mother’s testimony that the

notebook did not refer to the defendant by name. After all, it was the mother’s reading of the notebook which prompted her to contact the police about the defendant in the first place. Further, the mother’s comment on the first controlled call about “some of the stuff I was reading” may have left a reasonable juror with the impression that the child wrote more statements in the notebook other than those which the mother mentioned in the calls. However, the defendant was not given an opportunity to clarify or impeach the mother’s characterization of the notebook’s contents or to present to the jury the manner in which the child wrote the statements.

The state has not proven this error to be harmless. See State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986) (“The harmless error test. . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”). Once the state mentioned the notebook’s existence through the introduction of the controlled calls, a reasonable juror would have found the notebook’s contents to be very significant. That is because, by the time the child testified, several months had passed, during which the child had discussed the matter with at least four adults – her mother, the investigating detective, the child protection team investigator, and the prosecutor. The notebook, however, was written contemporaneously and without the possibility of outside influence. Yet the jurors were left to speculate as to its contents rather than being allowed to see this key piece of evidence for themselves. Thus, a reasonable possibility exists that allowing the jury to speculate as to the notebook’s contents contributed to the conviction. This error, by itself, is sufficient to require reversal for a new trial.

We now address two other errors which, by themselves, may not have been sufficient to require reversal for a new trial. However, we address them to preclude their repetition at the new trial.

Impeachment

The defendant lived in the same apartment building as the child’s aunt. During the state’s case-in-chief, the child testified on cross-examination of having told her aunt that the defendant had “touched her.” During the defendant’s case-in-chief, the defendant called the aunt as a witness. Before beginning direct examination, the defendant requested that he be able to impeach the child’s testimony by asking the aunt whether the child ever said anything to her about being abused. In

support of this request, the defendant represented that the aunt testified at deposition that the child never complained to her of sexual or physical abuse. The trial court denied the request, finding that such evidence would constitute impeachment on a collateral matter.

The defendant argues that this evidence was not a collateral matter but went to the heart of his defense that the child fabricated the allegations. The state conclusorily responds that the trial court did not abuse its discretion in finding the testimony inadmissible.

The standard of review for a refusal to permit impeachment on the ground that the impeachment involved a collateral matter is abuse of discretion as limited by the rules of evidence. Ocasio v. State, 994 So. 2d 1258, 1261 (Fla. 4th DCA 2008) (citation omitted). Section 90.608(5), Florida Statutes (2009), provides that “[a]ny party . . . may attack the credibility of a witness by . . . [p]roof by other witnesses that material facts are not as testified to by the witness being impeached.” (emphasis added).

Applying those standards here, we conclude the trial court erred in not allowing this impeachment. Although the child’s alleged act of speaking to her aunt was not material, the content of that alleged speech was material. The child testified she told her aunt that the defendant had “touched her.” That statement summed up two of the three charges for which the defendant was on trial. Thus, allowing the defendant to ask the aunt whether the child ever said anything to her about being abused would not have constituted impeachment on a collateral matter.

Closing Argument

During closing argument, after applying the evidence to the elements of each charge, the state told the jury that “in order to find the defendant not guilty you would have to discredit – ”, at which point the defendant objected with “[i]mproper argument.” At sidebar, the court requested the state to complete the sentence it was telling the jury. The state responded, “You would have to discredit what [the child] testified, what information was provided during [the child’s] testimony.” The defendant replied that such an argument would be improper because “[the jury has] to decide whether or not the State proved [its] case beyond a reasonable doubt. . . . [I]t’s not whether or not a witness is telling the truth or lying or not.” The court overruled the objection at sidebar. Despite the favorable ruling, the state did not finish the sentence in front of the jury. Instead, the state rephrased its argument: “[I]f you find that [the child’s] testimony was credible, if you have an abiding conviction of guilt, you

must find the defendant guilty.” During the state’s rebuttal argument, the state told the jury “this boils down to, do you believe [the child].” The state then summarized the child’s testimony again and ended with “[D]o you believe that? If you do, the State’s proven its case.” The defendant objected. The trial court overruled the objection.

The defendant moved for a mistrial shortly thereafter. The defendant argued that the state’s comments improperly shifted the burden of proof to him because the comments insinuated he needed to prove that the child was lying in order to be found not guilty. The trial court denied the motion. The court found that the state rephrased its initial comment and made its later comments in the context of instructing the jury to weigh the evidence and decide whether the state proved every element of its case.

The defendant argues that the trial court erred in overruling his objection to the state’s initial comment and in denying his motion for mistrial. The defendant maintains that the state’s comments regarding the child’s credibility improperly shifted the burden of proof to him. The state responds that its comments, when read in context with the rest of the argument, were proper because it simply was informing the jury to weigh the child’s credibility and decide whether the state proved every element of its case.

We review the trial court’s rulings for an abuse of discretion. See Wicklow v. State, 43 So. 3d 85, 87 (Fla. 4th DCA 2010) (“Improper prosecutorial closing argument is reviewed under an abuse of discretion standard.”); Joseph v. State, 41 So. 3d 307, 311 (Fla. 4th DCA 2010) (a trial court’s denial of a motion for mistrial based on an argument that the state improperly shifted the burden of proof during closing argument is reviewed for an abuse of discretion).

Applying the foregoing standard, we conclude that the trial court erred in overruling the defendant’s objection to the state’s initial comment. It would have been improper for the state to comment “in order to find the defendant not guilty, you would have to discredit the child’s testimony.” See Northard v. State, 675 So. 2d 652, 653 (Fla. 4th DCA 1996) (impermissible for state to argue “in order to find him not guilty you’re going to have to believe that the defendant was telling the truth and the officer was lying” because it misstates the burden of proof).

However, the trial court did not err in denying the motion for mistrial. The state did not complete the improper comment before the defendant objected at the word “discredit.” Moreover, despite the court overruling

the objection at sidebar, the state did not complete the improper comment to the jury. Instead, the state rephrased its argument to suggest that the child’s testimony was credible and that the child’s credible testimony proved the elements of its case. All of this came after the state applied the evidence to the elements of each charge. This course of events rendered harmless the court’s error in overruling the defendant’s objection to the state’s improper comment. See Covington v. State, 842 So. 2d 170, 173-74 (Fla. 3d DCA 2003) (trial court’s error in overruling prosecutor’s closing argument, that issue came down to whether the jurors believed the police officer or a defense witness, was harmless where the court overruled the objection at sidebar, but the prosecutor then made a correct statement that the officer’s testimony was sufficient for the state to carry its burden of proof). While the state could have more artfully argued that the child’s testimony proved the elements of each charge, we conclude that the state’s comments, in the context of the entire closing argument and the entire trial, were not so “prejudicial and fundamental that it denie[d] the accused a fair trial.” Dunlap v. State, 21 So. 3d 873, 876 (Fla. 4th DCA 2009) (citation omitted).

Based on the foregoing conclusions for which reversal was required, however, we remand for a new trial. For the trial court’s and the parties’ guidance in the new trial, we conclude that the other arguments which the defendant has raised in this appeal, but which we have not addressed in this opinion, are without merit.

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

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge; L.T. Case No. 2007CF012223AXX.

Barbara J. Scheffer, Palm Beach Gardens, for appellant.

Pamela J o Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, 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

January Term 2012

TYRA WILLIAMS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-2818

[January 18, 2012]

GERBER, J.

The defendant appeals her conviction for first degree murder of one of two children under her care. The defendant raises two arguments, neither of which have merit. We choose to briefly address one of these arguments.

The state charged the defendant for the murder of the older child. The defendant argues that the trial court erred by admitting evidence that she tricked her boyfriend into believing he was the younger child’s father. The defendant claims that this evidence was not admissible as being inextricably intertwined with the murder of the older child because it was neither relevant nor necessary to explain the crime. The defendant argues that this error was harmful and that she deserves a new trial.

We agree with the defendant that the trial court erred by admitting the evidence. The evidence clearly was not relevant and was not inextricably intertwined with relevant evidence. However, we conclude that the error was harmless. The evidence was so clearly not relevant that we do not believe any reasonable juror would have considered that evidence to be even slightly significant to a determination of whether the defendant murdered the older child. Thus, there is no reasonable possibility that the error contributed to the conviction. See State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986) (“The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not

contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”).

Affirmed.

CIKLIN and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case No. 07- 19070CF10A.

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

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

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2012

TIMOTHY JOHN ERLSTEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1081

[January 18, 2012]

PER CURIAM.

Timothy John Erlsten appeals the summary denial of his untimely and successive Rule 3.850 motion. Appellant contends that he was convicted of a nonexistent crime which constitutes a “fundamental error” that can be corrected at any time. We disagree and affirm.

In August 1998, appellant snatched a seven-year-old girl as she was walking to a park with her eleven-year-old sister. He carried her off and took her in his car to an abandoned road where he vaginally and anally penetrated her. In 1999, a jury convicted appellant of aggravated kidnapping in violation of section 787.01(3)(a), Florida Statutes (1997)1, and lewd, lascivious, or indecent act upon a child under sixteen in violation of section 800.04, Florida Statutes (1997).

The court sentenced him to life in prison as a habitual violent felony offender (HVFO) and prison releasee reoffender (PRR) for the aggravated kidnapping and a concurrent term of thirty years in prison as a habitual felony offender (HFO) and PRR for the lewd, lascivious, or indecent act. This court affirmed on direct appeal without written opinion. Erlsten v. State, 773 So. 2d 555 (Fla. 4th DCA 2000).

In 2001, he filed his first Rule 3.850 motion which was summarily denied but reversed and remanded as to a sleeping juror claim. Erlsten

1 The information charged that the kidnapping was aggravated because in the course of committing the offense appellant committed a sexual battery or lewd, lascivious, or indecent act.

v. State, 842 So. 2d 967 (Fla. 4th DCA 2003). The claim was subsequently denied and affirmed without opinion. Erlsten v. State, 900 So. 2d 567 (Fla. 4th DCA 2005).

In 2008, appellant filed this untimely and successive Rule 3.850 motion. He raised two claims: (1) that he was convicted of a nonexistent crime because he could not be convicted of lewd, lascivious, or indecent acts upon a child less than sixteen years of age for conduct that also constituted the crime of sexual battery under Jozens v State, 649 So. 2d 322 (Fla. 1st DCA 1995) and Beck v. State, 732 So. 2d 427 (Fla. 1st DCA 1999) and (2) that he could not be sentenced as an HVFO and PRR.

The court granted claim 2 and resentenced Erlsten to life in prison as a PRR for the aggravated kidnapping and thirty years in prison as an HFO with a fifteen-year mandatory minimum as a PRR on the lewd, lascivious or indecent acts count. The court summarily denied claim 1 based on the State’s response which argued that the claim was procedurally barred. This appeal follows.

The procedural bars that prohibit the filing of untimely and successive postconviction motions are critical to the proper administration of justice. Fla. R. Crim. P. 3.850(b), (f). Were the courts of this state filled with stale, repetitive, and successive postconviction motions raising claims in a piecemeal fashion, then justice for those raising timely, legitimate claims would be delayed and may ultimately be denied. For these reasons, a defendant seeking to bring an untimely or successive postconviction motion must meet strict requirements for establishing the narrow exceptions to these procedural bars. See, e.g., Fla. R. Crim. P. 3.850(b)(1); Christopher v. State, 489 So. 2d 22, 24 (Fla. 1986).

In extremely rare cases, which presented extraordinary and compelling circumstances, courts have relaxed the procedural bars in order to correct a manifest injustice. See, e.g., Johnson v. State, 9 So. 3d 640 (Fla. 4th DCA 2009). This court has recognized that a conviction for a truly nonexistent crime is one circumstance that may warrant relaxing the procedural bars and merit correction at any time. Moore v. State, 924 So. 2d 840 (Fla. 4th DCA 2006).

Erlsten was charged by amended information and convicted in Count II under section 800.04, Florida Statutes (1997), which provided in relevant part:

A person who:

(1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner;

(2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act;

(3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or

(4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years,

without committing the crime of sexual battery, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 800.04, Fla. Stat. (1997) (emphasis added).

For Count II, the information alleged as follows:

August 05, 1998 Timothy John Erlsten did unlawfully handle, fondle or assault [the victim], a child under 16 years, in a lewd, lascivious or indecent manner or did knowingly commit a lewd or lascivious act in the presence of such child, or did commit an act defined as sexual battery upon such child, in violation of Florida Statutes 800.04.

(emphasis added).

Appellant argues that, because the jury returned a general verdict, he may have been convicted of a “nonexistent crime” which is a “fundamental error” that can be raised at any time. He contends that he is entitled to a new trial on Count I because the kidnapping charge may have been aggravated based on this alleged non-existent crime.

In Jozens, 649 So. 2d at 323, the court concluded that the charge under section 800.04(3) was “fatally flawed” because “[u]nder section 800.04(3), one cannot be convicted of a lewd and lascivious act committed upon a child under 12 years of age for conduct that also

constitutes the crime of sexual battery under section 794.011.” The information in Jozens charged that the defendant committed a lewd, lascivious or indecent act by “committing a sexual battery upon [the victim].” The court appears to have found that this conflicted with the “without committing the crime of sexual battery” language and rendered the entire count fatally flawed.2 Id. at 324. Importantly, the defendant in Jozens had been charged with sexual battery in a separate count, but the jury acquitted the defendant of the sexual battery and convicted him of simple battery, a lesser offense. See also Beck v. State, 732 So. 2d 427 (Fla. 1st DCA 1999) (remanding for new trial where it was impossible to tell from the general verdict on what basis the jury convicted).

Jozens and Beck were both direct appeal cases. The court in Jozens, unable or unwilling to reconcile the conflict perceived in the language of the statute, found that the error was fundamental and could be raised on direct appeal despite the lack of preservation. In so holding, the court employed overbroad language: “The complete failure of an information to charge a crime is a defect that can be raised at any time.” 649 So. 2d at 324. This language is dicta. Jozens and Beck do not stand for the proposition that a challenge to the manner in which a section 800.04 offense was charged can be raised “at any time,” including in an untimely and successive postconviction motion.

Fundamental errors that can be raised for the first time on direct appeal despite the lack of preservation are not necessarily errors that can be corrected at any time. Haliburton v. State, 7 So. 3d 601, 605-06 (Fla. 4th DCA 2009). The “fundamental error” terminology has been used haphazardly in some postconviction decisions and misused by prisoners seeking to raise untimely or successive postconviction claims. See Hughes v. State, 22 So. 3d 132, 137 (Fla. 2d DCA 2009). The focus in this postconviction posture is whether injustice is manifest.

We find that Jozens is distinguishable. In this case, appellant was not charged, tried, or convicted of capital sexual battery on a child under twelve. See § 794.011(2)(a), Fla. Stat. (1997). The information in this case did not contain the language that the court in Jozens found rendered the count fatally flawed. Jozens, 649 So. 2d at 324 (“[W]e find that the state’s use of the phrase ‘by committing sexual battery upon said child’ rendered the entire count fatally flawed.”).

We agree with then-Judge Polston’s well-reasoned dissent in Palmer v.

2 In 1999, the legislature amended the statute and removed the “without committing a sexual battery” language. Ch. 99-201, § 6, Laws of Fla.

State, 838 So. 2d 579, 580-82 (Fla. 1st DCA 2002). The phrase “without committing the crime of sexual battery” is not applicable to this case, and the prosecutor had discretion whether and how to prosecute. Id. at 581. The State opted not to prosecute for capital sexual battery. The legislature clearly intended the lewd, lascivious, and indecent act statute to prohibit and criminalize sexual intercourse and acts defined as sexual battery when committed upon those less than sixteen years of age. Ch. 84-86, § 5, at 264-65, Laws of Fla.; State v. Hightower, 509 So. 2d 1078 (Fla. 1987). The charge under section 800.04(3), Florida Statutes (1997), which alleged that defendant committed “an act defined as sexual battery,” was not “fatally flawed” and did not fail to charge a crime.

Appellant in this case was not convicted of a non-existent crime. The postconviction court correctly concluded that the claim was procedurally barred. We perceive no injustice in allowing this conviction to stand.

Affirmed.

GROSS, CIKLIN and LEVINE, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 561998CF003027A.

Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, 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

January Term 2012

WILLIE F. MARSHALL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1595

[January 18, 2012]

MAY, C.J.

The defendant appeals his conviction and sentence for delivery of cocaine. He argues the court erred in two ways: (1) denying his motion for judgment of acquittal; and (2) entering a sentencing order that did not conform to the court’s oral pronouncement. We find no error in the denial of the defendant’s motion for judgment of acquittal, but agree that the sentencing order fails to conform to the court’s oral pronouncement. We therefore affirm in part and reverse in part.

After the jury returned a guilty verdict on the delivery of cocaine charge, the trial court adjudicated the defendant guilty, and sentenced him as a habitual felony offender. The trial court orally pronounced the sentence as seven years of prison, followed by eight months of probation. The written sentencing order, however, indicated eight years rather than eight months of probation.1

“[A] court’s oral pronouncement of a sentence controls over the written sentencing document. When the written document results in a sentence that is more severe than the sentence announced in court, . . .” the sentence is illegal. Williams v. State, 957 So. 2d 600, 603 (Fla. 2007).

Here, the written sentence reflects an eight-year term of probation to

1 The defendant filed a Motion to Correct Sentencing Error, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Because the trial court failed to rule on the motion within sixty days, it is considered denied. Fla. R. Crim. P. 3.800(b)(1)(B).

follow the term of imprisonment, but the trial transcript reflects an oral pronouncement of seven years imprisonment followed by eight months of probation. The oral sentence is not ambiguous. Nevertheless, the State does not concede error. It contends the trial court either misspoke or the transcript is wrong because, later that day, the trial court sentenced a defendant in another case to a term of imprisonment followed by eight years of probation to be served concurrently.

Notwithstanding the State’s alternative theories, “[w]here there is no ambiguity in the trial court’s oral pronouncement, the sentencing order must be corrected to reflect the oral pronouncement. Only where there is an ambiguity in the oral pronouncement is there a need for the court to make a factual determination before making the correction.” Moreland v. State, 853 So. 2d 574, 575 (Fla. 4th DCA 2003). Here, there is no ambiguity.

We therefore reverse the sentence and remand the case to the trial court to conform the written sentence to the oral pronouncement.

Affirmed in part; Reversed in part and Remanded. HAZOURI and DAMOORGIAN, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 09- 12760CF10A.

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

Pamela J o Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, 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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