Case No. 2D08-915.

District Court of Appeal of Florida, Second District.

Opinion filed July 1, 2009.

Appeal from the Circuit Court for Hillsborough County, Manuel A. Lopez, Judge, and Robert E. Beach, Associate Senior Judge.

Richard A. Harrison of Allen Dell, P.A., Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

WHATLEY, Judge.

Charles Harman appeals an order denying his petition to expunge the records of criminal justice agencies and the official records of the circuit court. We conclude that the trial court erred in denying the petition based on its two stated grounds and reverse.

The procedure to expunge judicial records and nonjudicial criminal history records is governed by Florida Rule of Criminal Procedure 3.692 and section 943.0585, Florida Statutes (2007). In the present case, the State acknowledges that Mr. Harman satisfied the requirements of section 943.0585 and rule 3.692 for the expunction of his criminal history records and judicial records. However, as noted by the State and Mr. Harman, even where a petitioner has satisfied all of the statutory requirements, section 943.0585 gives the trial court the discretion to deny expunction. See Russell v. Miami Herald Publ’g Co., 570 So. 2d 979, 982 (Fla. 2d DCA 1990) (interpreting statute as allowing a trial court to expunge its own records using its sound discretion). A trial court has the discretion to deny a petition “if there is a good reason for denial based on the facts and circumstances of the individual case.”Anderson v. State, 692 So. 2d 250, 252 (Fla. 3d DCA 1997).

Here, the trial court denied the petition based on its finding that the charged offense was serious and its finding that Mr. Harman previously had been accused of a domestic violence offense.¹ We conclude that the trial court abused its discretion in denying the petition based on these two reasons.

On April 12, 2005, Mr. Harman was charged by information with the second-degree murder of his wife. However, on April 27, 2006, the State filed a nolle prosequi in the case. At the hearing on Mr. Harman’s petition, the prosecutor argued that the charges were dropped because the medical examiner could not determine whether Mr. Harman’s wife’s death was a homicide or a suicide, and therefore, the State could not establish corpus delecti. The prosecutor noted that, even though the case was dropped because the State could not establish corpus delecti, it was not dropped because it believed that Mr. Harman did not commit the offense. It noted that the cause of death was a single gunshot wound and that when a detective asked Mr. Harman how many times he pulled the trigger, Mr. Harman replied that the “gun only went off once.”²

As the State concedes, even though the charge in the instant case was serious, the seriousness of the offense, standing alone, is insufficient to support the denial of the petition. See Anderson, 692 So. 2d at 254 (”[T]he exercise of discretion contemplates that the court will make its decision based on consideration of all of the facts and circumstances, rather than deciding the petition solely on the nature of the charge.”); Godoy v. State, 845 So. 2d 1016, 1017 (Fla. 3d DCA 2003) (concluding that trial court’s denial of petition cannot be based solely on the nature of the charge). Therefore, the trial court abused its discretion in denying the petition based on the seriousness of the offense.

We also conclude that the trial court abused its discretion in denying the petition based on the previous domestic violence offense because, as the State concedes, there was no evidence presented at the hearing to support this finding. At the hearing, the prosecutor stated that Mr. Harman previously had been accused of domestic violence by his former wife and that his former wife alleged that Mr. Harman had threatened to kill her and had told her that he could make it look like self-defense. However, there was no testimony or documentary evidence presented to support the prosecutor’s statements. Therefore, the trial court erred in relying on the attorney’s statements to support its findings.

Accordingly, we reverse the order denying Mr. Harman’s petition to expunge and remand to permit the trial court to reconsider the petition. See Godoy, 845 So. 2d at 1017 (remanding with directions to the trial court to reconsider appellant’s petition based on all of the facts and circumstances, not only on the nature of the charge); Oymayan v. State, 765 So. 2d 812, 815 (Fla. 1st DCA 2000) (remanding for trial court to reconsider request for expungement of judicial records).

Reversed and remanded with directions.

ALTENBERND and FULMER, JJ., Concur.

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

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Case No. 2D08-5388

District Court of Appeal of Florida, Second District.

Opinion filed July 1, 2009.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County, Donald G. Jacobsen, Judge.

Steven G. Brown, pro se.

VILLANTI, Judge.

We affirm the summary denial of Steven G. Brown’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) but write to explain an additional basis to affirm the denial of claim one of his motion.

A jury convicted Brown of first-degree murder pursuant to section 782.04(1), Florida Statutes (1987). For that offense, he was sentenced to prison for “a term of Natural Life (25 Year Minimum Mandatory)” in accordance with section Appellee. 775.082(1), Florida Statutes (1987), which provides: “A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless [the death penalty is imposed].”¹

In claim one of his motion, Brown alleged that the Department of Corrections (DOC) has informed him that he is not eligible for parole because he was sentenced to a capital offense.² Although Brown framed his claim as one based on a sentencing error (which the postconviction court properly rejected), the actual basis of the claim is the DOC’s interpretation of his sentence. A claim that the DOC has incorrectly interpreted a sentence is not cognizable in a rule 3.800(a) motion. See Swinney v. State, 757 So. 2d 1218, 1218 (Fla. 2d DCA 2000). Instead, any complaint that the DOC has misinterpreted Brown’s sentence must be addressed through administrative procedures and, if necessary, by a petition for writ of mandamus filed in Leon County. See id.; Stovall v. Cooper, 860 So. 2d 5, 7-8 (Fla. 2d DCA 2003) (en banc).

Accordingly, the order denying Brown’s rule 3.800(a) motion is affirmed in all respects.

Affirmed.

FULMER and KHOUZAM, JJ., Concur.

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

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No. 4D08-4695

District Court of Appeal of Florida, Fourth District

July 1, 2009

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, John J. Murphy, III, Judge, L.T. Case No. 06-5015 CF10A.

Thomas M. McNulty, Okeechobee, pro se.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

Per Curiam

Thomas McNulty appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion which alleged ineffective assistance of counsel. McNulty raised several arguments below, only one of which we find necessitates remand.

In April 2006, McNulty was charged with felony DUI and refusing to consent to a breathalyzer/blood test. A jury found him guilty of Count I, the felony DUI, and the state presented a certified copy of McNulty’s driving record showing three prior convictions for DUI. Thereupon the court found McNulty guilty of felony DUI. McNulty pled nolo contendere to count II (refusal to consent to testing). He received a five-year sentence in the Department of Corrections for the felony DUI. On direct appeal his convictions were affirmed.McNulty v. State, 972 So. 2d 197 (Fla. 4th DCA 2008).

Subsequently, McNulty filed a rule 3.850 motion for post conviction relief alleging that he received ineffective assistance of counsel (IAC) because his trial attorney failed to investigate whether the 1982 DUI, which was part of the basis for the felony DUI charge, was uncounseled and should not have been used to enhance his fourth DUI to a felony.

In response to an order to show cause issued by this court, the state argued, citing State v. Beach, 592 So. 2d 237 (Fla. 1992), that McNulty was required to allege under oath four factors to support his claim: 1) that the offense involved was punishable by more than six months of imprisonment or that the defendant was actually subjected to a term of imprisonment; 2) that the defendant was indigent and thus entitled to court appointed counsel; 3) that counsel was not appointed; and 4) that the right to counsel was not waived. We believe that the recent decision of State v. Kelly, 999 So. 2d 1029 (Fla. 2008), modified Beach so that a defendant now has to allege (in addition to factors 2, 3, and 4) only that the offense was punishable by imprisonment, not that the offense was punishable by more than six months imprisonment or that he was actually imprisoned. In other words, in Kelly the Florida Supreme Court ruled that indigent defendants have a right to counsel in all criminal prosecutions punishable by imprisonment, even misdemeanor prosecutions, unless the trial judge “opts out” by providing a written pretrial certification that the defendant will not be imprisoned for the charged offense.

Applying Kelly to this case,¹

it is evident that McNulty alleged in his 3.850 motion only one of the four factors necessary to support a claim of IAC, that is, he alleged only that his trial attorney failed to investigate whether the 1982 DUI (which was part of the foundation for the felony DUI) was uncounseled. McNulty made no allegations that the offense was punishable by imprisonment; that he was indigent and entitled to court appointed counsel; and that he did not waive the right to counsel. Thus, he failed to allege the threshold requirements of Kelly. Nevertheless, in light of the Florida Supreme Court’s decisionSpera v. State, 971 So. 2d 754 (Fla. 2007) (trial court must allow a defendant at least one opportunity to correct a pleading deficiency in a first 3.850 motion), we direct the trial court to afford McNulty the opportunity to amend his motion to allege the necessary Kelly factors, if he can do so in good faith.²

Reversed and remanded for further proceedings.

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

Not final until disposition of timely filed motion for rehearing.

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No. 4D08-4488

District Court of Appeal of Florida, Fourth District.

July 1, 2009

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Lucy Chernow Brown, Judge, L.T. Case No. 1984CF002964AXX.

Daniel R. Lonergan, Lake City, pro se.

Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

Per Curiam.

Daniel Lonergan appeals the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 as untimely. We affirm.

Lonergan pleaded guilty to attempted escape on May 14, 1984, and was adjudicated guilty and sentenced to one year and one day in prison, consecutive to any sentence he was then serving. He did not file a direct appeal. In 1997 and 1998, he filed two motions to correct illegal sentence, both of which were denied. He also filed a motion for postconviction relief in May, 2001, on grounds not related to the issue here.

On May 30, 2007, the Florida Parole Commission aggravated his parole release date in a 1981 murder case by twenty-four months, based on the attempted escape conviction. On August 11, 2008, Lonergan filed another motion for post-conviction relief, the denial of which is the subject of this appeal. In this motion, Lonergan alleged that his plea was involuntary as it was the result of erroneous advice of counsel that his conviction for escape could not affect his subsequent parole in the murder case for which he already had been convicted and sentenced. He also alleged ineffective assistance of defense counsel for providing this erroneous advice.

The trial court summarily denied this motion as untimely under rule 3.850(b)’s two-year limitations period, and as successive to his previous motion filed in 2001. We affirm. By the time Lonergan filed his motion for post-conviction relief on August 11, 2008, the Supreme Court of Florida’s decision Ey v. State, 982 So. 2d 618 (Fla. 2008), was controlling authority. In that case, the Supreme Court held that a claim that counsel erroneously advised a defendant about the effect of his plea on a sentence imposed in another case for a crime committed prior to the entry of his plea was legally sufficient, but was untimely if not filed within two years after the conviction based on the plea became final. Id. at 625. While the motion in that case was filed beyond the limitations period, the Supreme Court nonetheless deemed the motion timely there because, at the time it was filed, district courts had applied Peart v. State, 756 So. 2d 42 (Fla. 2000), to similar claims and held that the limitations period commenced when the defendant discovered the enhancement, not the date the conviction became final. Id. However the Supreme Court overruled Peart in State v. Green, 944 So. 2d 208 (Fla. 2006), while Ey’s petition was pending. In those circumstances, the Supreme Court allowed it to be considered as timely filed.

Here, that is not the case. Lonergan’s motion was filed after Ey, and thus, the clock started to tick when his conviction and sentence became final in 1984. He could have learned within two years of that time that the Florida Parole Commission could exercise its discretion to use the attempted escape conviction to aggravate his parole release date in the murder case, notwithstanding any promises by his defense counsel to the contrary. Gusow v. State, 6 So. 3d 699, 704-05 (Fla. 4th DCA 2009). Accordingly, the trial court properly denied his post-conviction motion filed more than two years after his conviction and sentence became final.

Affirmed.

STEVENSON, MAY and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

No. 4D08-415

District Court of Appeal of Florida, Fourth District.

July 1, 2009

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Marc H. Gold, Judge, L.T. Case No. 06-9207 CF10A.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and, Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellee.

Damoorgian, J.

The State of Florida timely appeals the trial court’s downward departure sentence imposed on Michael Waterman on a charge of escape. In this appeal, the State argues that the trial court erred in granting Waterman a downward departure sentence pursuant to section 921.0026(2)(j), Florida Statutes (2008), because the record shows that his escape charge was not an isolated incident, one of the requirements for a mitigated sentence under that subsection of the statute. We agree and vacate Waterman’s sentence on the charge and remand for resentencing.

By way of background, Waterman was charged with one count of escape, as well two counts of battery on a law enforcement officer and four misdemeanors, including a DUI. He entered an open no contest plea to all charges and moved to be sentenced as a youthful offender. His sentencing scoresheet showed a lowest permissible prison sentence of 23.625 months. The scoresheet also showed that Waterman has a criminal record consisting of misdemeanor charges for possession of cannabis, battery, petit theft, and trespass, and one felony charge for aggravated battery with a deadly weapon. In addition, defense counsel proffered that Waterman had a prior DUI conviction within twelve months of his current charges, although this conviction does not appear on his scoresheet.

At the conclusion of the sentencing hearing, the State recommended that Waterman be sentenced to five years in prison. The defense requested a youthful offender sentence consisting of a term of probation.

With respect to the escape charge, the trial court denied the motion for a youthful offender sentence, and instead granted a downward departure, withheld adjudication, and sentenced Waterman to six months of community control followed by six and one-half years of drug offender probation. This downward departure sentence was based on the trial court’s determination that the escape was committed in an unsophisticated manner and was an isolated incident for which Waterman had shown remorse. The trial court characterized Waterman’s criminal record as “a serious background,” “a terrible juvenile record,” and a “[b]ad record.” Nevertheless, the court expressed its desire to keep Waterman out of the adult prison system because “[h]e is not going to come out better.” The State objected to the downward departure sentence.

The State argues that the trial court erred in granting Waterman a downward departure sentence because his escape charge was not an isolated incident. Waterman contends that all of his prior crimes occurred while he was a juvenile, so they should not be considered when determining whether his present crime was an isolated incident under section 921.0026(2)(j), Florida Statutes (2008).

The imposition of a downward departure sentence is a two-step process, described as follows:

First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by a preponderance of the evidence. This aspect of the court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling. . . . Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.

Banks v. State, 732 So. 2d 1065, 1067-68 (Fla. 1999) (citations omitted). Section 921.0026(2)(j), Florida Statutes (2008), permits a trial court to depart from the lowest permissible sentence when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” To support a downward departure based on this particular mitigator, all three elements must be shown: (1) the crime was committed in an unsophisticated manner, (2) the crime was an isolated incident, and (3) the defendant has shown remorse. State v. Gaines, 971 So. 2d 219, 220 (Fla. 4th DCA 2008).

The second element of the mitigator — that the crime was an isolated incident — is the focus of this appeal.¹ Neither the legislature nor the courts have established a bright-line rule for determining whether an offense is an isolated incident. See id. at 221. Instead, the courts have set forth the standard that “[a] defendant’s extensive prior criminal record precludes a showing than an offense was `an isolated incident.’” State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005); see, e.g., Gaines, 971 So. 2d at 221 (where the defendant had eighteen prior convictions); State v. Stephenson, 973 So. 2d 1259, 1263-64 (Fla. 5th DCA 2008)(where the defendant had at least seventeen prior convictions). This standard applies even if the defendant’s record does not include the same offense for which he is presently being sentenced. Ayers, 901 So. 2d at 945; State v. Knox, 990 So. 2d 665, 669 (Fla. 5th DCA 2008).

A trial court is not, however, precluded from giving a defendant a downward departure sentence just because the defendant has any prior criminal history. See, e.g., State v. Fontaine, 955 So. 2d 1248, 1251 (Fla. 4th DCA 2007) (Warner, J., concurring) (the defendant’s current offense was an isolated incident where his criminal record included two misdemeanors that were committed ten years earlier); State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999) (the defendant’s current offense was an isolated incident where he had only one prior criminal conviction).

Thus, the issue for this Court is whether Waterman’s criminal history is so extensive that it precludes a downward departure sentence under section 921.0026(2)(j), Florida Statutes (2008). Waterman’s history consists of at least four misdemeanors, a felony aggravated battery with a deadly weapon for which he was sentenced about two years before he committed the current offenses, and a DUI that occurred less than a year before the current offenses. On one hand, his history is certainly not as extensive as the defendants in Ayers and Gaines, and the escape and accompanying charges were his first criminal charges as an adult. Nevertheless, his history is distinguishable from the defendants’ histories in Fontaine and Randall because he has more than just one or two misdemeanor charges on his record. In addition, his history shows an emerging pattern of alcohol-related crimes, in that his current escape charge arose out of his second arrest for DUI within a year.

Waterman’s record is more similar in scope to the defendant’s record State v. Tice, 898 So. 2d 268 (Fla. 5th DCA 2005). In Tice, the defendant’s scoresheet indicated that he was previously convicted of resisting an officer without violence, two violations of probation, aggravated battery with a deadly weapon, and fleeing or attempting to elude a police officer. Id. at 269. Thus, the defendant’s record fell somewhere in the middle of the spectrum of criminal records, where on one end lies the defendant with a clearly excessive record, and on the other end lies a defendant with no prior criminal record. The Fifth District Court of Appeal held that the defendant’s record, while midspectrum, precluded his current offense from being labeled “isolated.” See id. Thus, the statutory mitigator did not apply. Id. We agree with that analysis, and hold that Waterman’s record is too extensive for his escape charge to be labeled “isolated” under section 921.0026(2)(j), Florida Statutes (2008).

Accordingly, there is not competent, substantial evidence to support the trial court’s ruling that Waterman’s escape charge was an isolated incident. His criminal history precludes him from receiving a downward departure sentence under section 921.0026(2)(j), Florida Statutes (2008). Moreover, his argument that one of the other statutory mitigators might apply is not supported by the record. Thus, the trial court erred in departing downward from the sentencing guidelines to sentence Waterman on Count 1, escape. We reverse Waterman’s downward departure sentence for Count 1 and remand for resentencing.

Reversed and Remanded.

STEVENSON and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Case No. 2D08-326.

District Court of Appeal of Florida, Second District.

Opinion filed July 1, 2009.

Appeal from the Circuit Court for Hillsborough County, Anthony K. Black and Manuel A. Lopez, Judges.

Robert Stephen Philip, pro se.

Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Robert Philip appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised twelve grounds for relief. We affirm the postconviction court’s order on all grounds except on ground 3(a). Pursuant to Spera v. State, 971 So. 2d 754, 761 (Fla. 2007), we reverse and remand for further proceedings on ground 3(a) only.

In ground 3(a) of his motion Philip alleged that his counsel was ineffective for failing to depose the State’s witnesses to find out what they would say at trial, in order to better prepare for trial. He contended that if his attorney had deposed the State’s witnesses, he may have found some impeachment information and would have known how the witnesses would have responded to questions at trial. The trial court denied this claim because it “failed to allege specific omissions due to counsel’s failure to depose State’s witnesses.” We find no error in the postconviction court’s summary denial of ground 3(a) because it was facially insufficient. However, under Spera the court should have given Philip an opportunity to amend his motion to state a facially sufficient claim.¹ 971 So. 2d at 761 (holding that “when a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion” within a reasonable period of time not to exceed thirty days). Accordingly, we reverse the denial of ground 3(a) and remand for the court to strike the claim with leave to amend within a specific period of time not to exceed thirty days, if Philip can do so in good faith. If Philip files an amended motion on this ground, the postconviction court may again summarily deny the claim if it is once again facially insufficient or if the court attaches portions of the record conclusively refuting his allegations.

Affirmed in part, reversed in part, and remanded with directions.

ALTENBERND and FULMER, JJ., Concur.

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

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No. 4D08-2679

District Court of Appeal of Florida, Fourth District.

July 1, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Jeffrey Levenson, Judge, L.T. Case No. 00-5842CF10A.

Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

No appearance for appellee.

PER CURIAM.

Appointed appellate counsel has moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Review of the record reveals no issues of arguable merit. However, we find no record of a written order revoking probation and specifying the conditions which appellant violated. Therefore, we affirm the revocation of probation and sentence, but remand for entry of a written order revoking probation and specifying the conditions which appellant violated. Smith v. State, 6 So. 3d 116 (Fla. 4th DCA 2009).

Affirmed and remanded.

POLEN, FARMER and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

No. 4D08-2610

District Court of Appeal of Florida, Fourth District.

July 1, 2009.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Karen M. Miller, Judge, L.T. Case No. 03-10128CFA02.

Steven H. Malone, Steven H. Malone, P.A., West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

The defendant below, convicted and sentenced for sexual battery without physical force, appeals the trial court’s denial of his motion for postconviction relief alleging ineffective assistance of counsel. To prevail on a claim of ineffective assistance, a defendant must show (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defense.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Here, even if defendant’s trial counsel’s performance was deficient in limited respects, no reasonable probability exists that trial counsel’s performance ultimately prejudiced the defendant. Therefore, we affirm.

First, the facts. In an earlier opinion, this court affirmed the defendant’s conviction and sentence. State v. Hamner, 942 So. 2d 433 (Fla. 4th DCA 2006).¹ That decision describes the facts as follows:

The undisputed testimony at trial showed that on June 24, 2003, Hamner and the victim were in West Palm Beach as part of a sales event for the company for which they both worked. They were not previously acquainted with one another. The two were randomly paired together for the day’s events by their supervisors and spent the day making sales calls to various businesses. That evening, the victim, Hamner, and several co-workers went to dinner at CityPlace. The victim consumed three or four alcoholic beverages at dinner. She testified that after dinner she began to feel “woozy” from the alcohol.

The victim returned to her hotel with Hamner and her boss, Mr. Mosby. The victim did not remember the car ride back to the hotel and believes she passed out. Mosby testified that the victim said she felt dizzy, and that when the car reached the hotel parking lot, the victim slumped over, with her head on Hamner’s shoulder.

Hamner and Mosby helped the victim to her hotel room because she was unsteady from the alcohol. The victim remembered walking from the car to the hotel entrance but did not remember the walk from the hotel entrance to her room. Mosby testified that they put the victim on the bed, and she fell back. They left her on the bed to sleep off the effects of the alcohol. She was fully clothed.

The victim and Hamner offered conflicting testimony as to what happened next. The victim testified that the next thing she remembered was being in her hotel room completely naked and turned sideways. Hamner was on top of her, engaging in sexual intercourse with her. She told him several times to stop and “no.” She was crying. She tried to get away by scooting across the bed, but hit her head on the credenza and blacked out again. During the State’s redirect examination, the victim stated that the words “stop” and “no” may have been slurred when she spoke them, and that she was not sure how loudly she spoke them. The trial court denied defense counsel’s request to conduct recross-examination of the victim.

Hamner testified on his own behalf. According to his version of events, he returned to the victim’s room because he realized that he still had her room key from helping her into her room earlier, so he decided to return the key and check on her. After she did not answer her door, he let himself in using the key. He found the victim lying on the floor. He went to pick her up, and at this point, the victim began hugging and kissing his neck. The victim then took out Hamner’s penis and began to perform oral sex on him. Hamner backed away because he did not feel it was appropriate.

Hamner testified that the victim complained of a headache so he went into the bathroom to look for some aspirin. When he returned into the main room, the victim was naked from the waist down and was taking off her bra. She asked Hamner to have sex with her. He refused, and the victim rolled onto her back and started grabbing at him again. She took down his pants and fondled him and then inserted his penis inside of her vagina. Hamner withdrew when he felt the sensation of ejaculation coming on. Hamner stated that the victim was intoxicated, but “she was fine.” She was not crying and did not want Hamner to leave the room. He adjusted the air conditioning in the room and adjusted the blanket over her before he left the room. The victim reported the incident to hotel personnel later that night, and the police were called to the hotel.

942 So. 2d at 435.

In his motion for postconviction relief, the defendant argues that his trial counsel was ineffective in several respects, only one of which deserves mention here. The defendant contends that his counsel neglected to timely subpoena the records custodian of the complainant’s medical records, and neglected to depose, question, and subpoena the doctor and nurse who treated the complainant in the emergency room. According to the defendant, the medical records and related testimony would have impeached the complainant’s trial testimony that she was in pain that evening between her legs and in her vaginal area. The records also would have shown that the complainant had no bruises or abrasions between her thighs; was not treated for alcohol overdose or poisoning; and was bizarrely screaming out in the emergency room, “I’m 16 going on 17. I keep seeing his face.” (The complainant was twenty-seven years old at the time and had been sexually assaulted as a teen.) The defendant argues that this evidence would have supported his consent defense and shown that the complainant’s memory and perception of the events were significantly distorted that evening. Had the evidence come in, he argues, a reasonable probability exists that the outcome below would have been different.

Trial counsel testified below that his decision not to pursue this investigation was strategic, which the lower court accepted. As the court found, “[Trial counsel] acknowledged that there was some risk to introducing the [medical] records in that the victim’s confusion in the emergency room may have furthered the State’s argument that she was either too incapacitated and/or incoherent to consent to sexual intercourse and/or perform the sexual gymnastics as suggested by the defendant.” Trial counsel instead cross-examined the State’s witnesses, including the complainant, regarding her mental health history, marital and divorce history, and the events of the day in question.

Because both prongs of the Strickland test present mixed questions of law and fact, an appellate court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. Bates v. State, 3 So. 3d 1091, 1100 (Fla. 2009).

We recognize that trial counsel’s strategic decision not to fully investigate and present the medical evidence and witnesses had the potential of being deficient.Jones v. State, 934 So. 2d 488 (Fla. 3d DCA 2004) (ineffectiveness for failure to call witnesses to support consent defense); Holsomback v. White, 133 F.3d 1382, 1387-88 (11th Cir. 1998) (counsel’s decision to not present medical evidence and instead rely on lack of evidence in sex abuse case was not reasonable); Pavel v. Hollins, 261 F.3d 210, 224 (2d Cir. 2001) (”When a sex abuse case boils down to such a `credibility contest,’ physical evidence will often be important.”).

However, it is not necessary to decide if counsel’s performance was deficient, because even if it was, no reasonable probability exists that such performance ultimately prejudiced the defendant. The defendant’s incredible testimony was his downfall. As the trial court found in its order denying the defendant’s postconviction motion, “[The defendant] acknowledged that it was inappropriate to pursue her sexual advances in light of the circumstances and was unable to provide any explanation as to why he remained in her room or why he ultimately had sexual intercourse with her.” The trial court also noted that, “within twentyfour (24) hours of the alleged rape, the defendant gave four statements outing (sic) four different versions of the events to law enforcement and a fifth version when he testified at trial.” According to the prosecutor, who testified at the evidentiary hearing below, the jurors laughed upon hearing the defendant’s testimony.

The evidence which the defendant says his trial counsel should have offered at the trial would not have altered the tale he presented to the jury. At most, the unadmitted evidence would have shown that the victim was violated without physical force, just as the State charged. The defendant’s argument that the evidence also would have shown the victim’s lack of credibility is unconvincing by comparison.

In making these findings, we have considered the United States Supreme Court’s test for prejudice. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. “[T]he defendant must show that [the errors] actually had an adverse effect on the defense.” 466 U.S. at 693, 104 S.Ct. at 2067. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” Id. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. at 2068. “[A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” 466 U.S. at 696, 104 S.Ct. at 2069.

In this case, the defendant did not meet that burden. Given the unbelievability of the defendant’s version of events, there is no reasonable probability that the omitted evidence would have changed the conclusion that the defendant committed a sexual battery.

The trial court found that the defendant’s remaining ineffectiveness claims were meritless without holding an evidentiary hearing. Without further comment, we agree.

Affirmed.

POLEN and FARMER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Case No. 2D08-1492.

District Court of Appeal of Florida, Second District.

Opinion filed July 1, 2009.

Appeal from the Circuit Court for Polk County, J. Michael Hunter, Judge.

James Marion Moorman, Public Defender, and Kimberly Nolen Hopkins, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Timothy McElrath challenges his convictions and sentences for first-degree murder, attempted voluntary manslaughter, and armed robbery. We affirm his convictions without comment. However, we write to note that although McElrath correctly points out, and the State concedes, that the written judgment and sentence fail to accurately reflect the court’s oral pronouncement, McElrath has not properly preserved this issue via a Florida Rule of Criminal Procedure 3.800(b) motion. See Jackson v. State, 983 So. 2d 562, 572 (Fla. 2008) (noting that sentencing errors that must be preserved by a rule 3.800(b) motion include claims that a written order deviates from the court’s oral pronouncement). Accordingly, we must also affirm McElrath’s sentences, but we do so without prejudice to any right McElrath might have to raise the issue in a rule 3.800(a) or 3.850 motion.

Affirmed.

SILBERMAN and CRENSHAW, JJ., Concur.

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

No. 3D08-1349.

District Court of Appeal of Florida, Third District.

Opinion filed July 1, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig, Judge, Lower Tribunal No. 06-28598.

Bruce A. Rosenthal, for appellant.

John P. Booth, Assistant General Counsel for the Florida Department of Law Enforcement (Tallahassee), for appellee.

Before COPE, CORTIÑAS, and ROTHENBERG, JJ.

ROTHENBERG, J.

A.J.M. appeals from a final order denying his petition to compel the Florida Department of Law Enforcement (”Department”) to issue a certificate of eligibility for the sealing of a criminal history record. We affirm.

I. Facts and Procedural History

In August 2006, A.J.M. was pulled over for speeding. After conducting the stop, a police officer arrested A.J.M. for driving under the influence of alcohol (”DUI”), and during a search incident to arrest, the police officer discovered cocaine in A.J.M.’s pocket. A.J.M. was later charged in circuit court with possession of cocaine, and in county court with DUI and driving while license suspended (”DWLS”).

A.J.M. pled guilty to possession of cocaine, and the circuit court withheld adjudication. The DUI and DWLS charges are currently pending before the county court, and the county court stayed the proceedings pending the resolution of this appeal.

On October 19, 2006, pursuant to section 943.059, Florida Statutes (2006),¹ A.J.M. applied to the Department for a certificate of eligibility to seal the possession charge. The application, however, did not seek a certificate of eligibility as to the other two offenses stemming from A.J.M.’s August 2006 arrest—DUI and DWLS. The Department declined to issue the certificate of eligibility based on its determination that A.J.M. failed to meet the statutory criteria. Specifically, the Department determined that because the county court charges were pending, A.J.M. could not attest that he “[h]a[d] not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains,” as required by section 943.059(2)(d).²

After the Department declined to issue the certificate of eligibility, A.J.M. petitioned the circuit court to compel the Department to issue the certificate.³ When the trial court denied the petition, A.J.M. filed the instant appeal.

II. Issue

This appeal raises the following question: Pursuant to section 943.059(2)(d), can the Department issue a certificate of eligibility to seal a criminal history record where the charge the applicant seeks to seal has been disposed of without an adjudication of guilt, but where the remaining charges stemming from his arrest are still pending? We conclude that based on the clear and unambiguous language of section 943.059(2)(d), the Department cannot issue a certificate of eligibility under these circumstances, and therefore, we affirm the trial court’s denial of A.J.M.’s petition to compel the Department to issue the certificate.

III. Standard of Review

The issue presented is a question of law, and therefore, this Court’s standard of review is de novo. See Koile v. State, 934 So. 2d 1226, 1229 (Fla. 2006).

IV. Analysis

The language at issue is set forth in subsection (2)(d), which provides in part as follows:

(2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to petitioning the court to seal a criminal history record, a person seeking to seal a criminal history record shall apply to the [D]epartment [of Law Enforcement] for a certificate of eligibility for sealing. . . . The department shall issue a certificate of eligibility for sealing to a person who is the subject of a criminal history record provided that such person:

. . . .

(d) Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.

(Emphasis added).

The parties disagree as to the meaning of the provision and whether the provision is clear and unambiguous. Contrary to A.J.M.’s assertion, subsection (2)(d) is clear and unambiguous, and therefore, this Court “will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005); see also Knox v. Adventist Health Sys./Sunbelt, Inc., 817 So. 2d 961, 962 (Fla. 5th DCA 2002) (recognizing that when a statute is clear and unambiguous, a court may not resort to rules of statutory construction, and the “statute must be given its plain and obvious meaning”).

A plain reading of section 943.059(2) reflects that it provides that the Department may only issue a certificate of eligibility to seal a criminal history record if certain criteria are met. The criterion set forth in subsection (2)(d) specifically provides that the applicant is not eligible to seal his criminal history record unless he has not been adjudicated guilty of committing any of the acts stemming from the arrest or any of the alleged criminal activity to which the petition to seal pertains. Although A.J.M. received a withhold of adjudication on the possession charge, the DUI and DWLS charges he was also arrested for and charged with still remain pending. A.J.M. therefore may be ultimately adjudicated guilty of one or more of the acts stemming from the arrest.⁴ The Department, therefore, correctly declined to issue A.J.M. a certificate of eligibility and the trial court properly denied A.J.M.’s petition to compel the Department to do so.

Our reading of the following language in the introductory paragraph to section 943.059 does not alter our interpretation of the statute: “This section does not prevent the court from ordering the sealing of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity.” This provision does not relate to the Department’s authority to issue a certificate of eligibility. The applicant is either eligible or he is not. What this provision does is it provides the trial court with discretion, even after a certificate of eligibility is issued by the Department, to seal “only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity.”

Our current interpretation of the statute is consistent with this Court’s prior interpretation Poleski v. State, 371 So. 2d 548 (Fla. 3d DCA 1979). In Poleski, the trial court ordered the unsealing of Poleski’s arrest record and court file, which had previously been sealed, because Poleski had been adjudicated guilty of one of the “acts” involved in his August 14, 1977 arrest. Poleski was arrested for DUI, as was A.J.M. A search conducted incident to the DUI arrest revealed that Poleski was in possession of a controlled substance, as was A.J.M. After completing a pre-trial intervention program, the possession charge was nolle prossed and Poleski obtained a court order sealing his arrest record and court file. The trial court, however, ordered that his record and file be unsealed upon learning that Poleski had been adjudicated guilty for the DUI. This Court affirmed, finding:

Plainly, there were “several acts” involved in the defendant’s August 14, 1977 arrest. It is also clear that the d.u.i. charge was directly “related to” the possession offense which was nolle prossed. Since the nolle prosse did not include the d.u.i. offense, of which, to the contrary, the defendant was found guilty, the very terms of the statute demonstrate that he was not entitled to the relief sought.

Id. at 550 (citation omitted).

The Poleski court noted in a footnote the wisdom of this provision—that because both charges were incorporated in the same arrest affidavit, even the sealing of the felony charge would not eliminate the reference to the same charges in the unsealed county court file. We agree, and we take this observation one step further. The sealing of the circuit court file would not eliminate the reference to the felony charge in the misdemeanor/traffic county court file(s), thus defeating this purpose—to eliminate all record and references to the sealed arrest. The sealing of the resolved offenses prior to resolution of the related offenses could also have a direct and negative impact on the prosecution of the remaining charges, as the sealed record and file could deny the State and the defense with relevant information and evidence related to the remaining offenses.

V. Conclusion

Because the trial court properly denied A.J.M.’s petition to compel the Department to issue a certificate of eligibility for sealing, we affirm the order under review.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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