Florida Criminal Law Opinions

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

GEORGE MANN,

Appellant,

v.                     Case No. 2D10-2920

STATE OF FLORIDA,

Appellee.

Opinion filed June 15, 2011.

Appeal from the Circuit Court for Lee County; Mark A. Steinbeck, Judge.

James Marion Moorman, Public Defender, and Mark C. Katzef, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

BLACK, Judge.

We affirm George Mann’s conviction and sentence for robbery with a weapon without comment. However, we remand for the trial court to correct a scrivener’s error apparent on the face of the written judgment. While the record reflects

that Mann was convicted of robbery with a weapon, the written judgment erroneously indicates he was convicted of robbery with a firearm. See Willingham v. State, 48 So. 3d 173, 173 (Fla. 2d DCA 2010); Carter v. State, 32 So. 3d 67, 67 (Fla. 2d DCA 2009).

Judgment and sentence affirmed; remanded with instructions.

DAVIS and KHOUZAM, JJ., Concur.

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed June 15, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D09-2995

Lower Tribunal No. 06-35182

Dail Wright,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Yvonne Colodny, Judge.

Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

Before WELLS, SUAREZ, and LAGOA, JJ.

SUAREZ, J.

Dail Wright appeals from a final judgment of conviction and sentence. We affirm.

After waiving his Miranda rights, Wright confessed to the police to burglarizing the victim, as well as to sexually assaulting her in front of her minor child. He went to trial and was convicted of burglary with assault or battery; two counts of sexual battery with no serious injury; one count of attempted sexual battery with no serious injury; lewd and lascivious exhibition on a child under sixteen; child abuse with no bodily harm; and credit card theft. As to one of the sexual battery counts, the State charged Wright pursuant to section 794.0115, Florida Statutes (2009), the Dangerous Sexual Felony Offender Act, because he committed a sexual battery on the adult victim as well as victimized another person, the victim’s minor child, by committing the act in front of the child.

Prior to trial, the defense argued that the statute is unconstitutional because the term “victimized” in subsection (c) is vague. The trial court disagreed and denied the motion. The jury convicted Wright as charged, and the court sentenced him to the mandatory minimum term of twenty-five years pursuant to section 794.0115(2)(c) (2009). 1

1 Section 794.0115 provides

(2) Any person who is convicted of a violation of s. 787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); or s. 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person:

. . .

Wright argues that subsection (c) provides no definition for the term “victimized” and as such it is unconstitutionally vague. Wright argues that a person could be convicted and sentenced under this statute if he or she committed an unrelated misdemeanor in addition to one of the enumerated offenses. We disagree. The definitions at the beginning of chapter 794.011 define “victim” as “a person who has been the object of a sexual offense.” Reading this specific definition in the context of § 794.0115(2)(c) clearly encompasses Wright’s offense of 1) committing an enumerated offense (sexual battery) against the adult victim, and 2) committing a sexual offense against the minor child, i.e., “victimizing” the minor child by sexually assaulting his mother in front of him. The charges of lewd and lascivious exhibition on a child under sixteen and child abuse with no injury, clearly satisfy the statute’s requirements for being “victimized” under subsection (c) when read together with the statute’s definition of “victim.” The statute is not

(c) Victimized more than one person during the course of the criminal episode applicable to the offense; [e.s.]

. . .

(e) Has previously been convicted of a violation of s. 787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); s. 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a felony if that offense were committed in this state, and which is similar in elements to an offense described in this paragraph,

is a dangerous sexual felony offender, who must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment.

unconstitutionally vague and we thus affirm Wright’s convictions and sentence. Affirmed.

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed June 15, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-37

Lower Tribunal No. 08-36167

Terry Lee Burrows,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Julio Jimenez,

Judge.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.

Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

ROTHENBERG, J.

The defendant, Terry Lee Burrows, appeals from convictions and sentences for the attempted second-degree murder of Lisa Bynum (“Bynum” or “J.E.’s mother”) and the child abuse of J.E. We reverse the defendant’s conviction for attempted second-degree murder, but affirm his conviction and sentence for child abuse.

The defendant was charged with the attempted first-degree murder of Bynum (Count 1), and the child abuse of J.E. in violation of section 827.03(1)(b), Florida Statutes (2008) (Count 2). At trial, the evidence demonstrated as follows. After Bynum and the defendant argued, Bynum went into her bedroom and got into bed with two of her children who were sleeping. The defendant entered the bedroom and punched Bynum in the face, and she began to scream. As Bynum screamed, the defendant continued to punch her. Bynum’s son, J.E., who was then nine years old and awake, pleaded with the defendant to stop. The defendant ignored J.E.’s plea, and in J.E.’s presence, stabbed Bynum multiple times. Bynum, who was eventually able to escape, ran to a neighbor’s house, and J.E. ran outside crying and screaming. Bynum’s teenage daughter, who was outside when the incident occurred, then ran inside to get her youngest brother who was still sleeping.

The defense moved for a judgment of acquittal as to the child abuse charge, which the trial court denied. Without objection, the trial court instructed the jury

as to the charged offense of attempted first-degree murder, and the lesser included offenses of attempted second-degree murder and attempted manslaughter by act. As to attempted second-degree murder, the jury was instructed that the State was required to prove the defendant “intentionally committed an act which would have resulted in the death of Lisa Bynum except that someone prevented [the defendant] from killing Lisa Bynum or he failed to do so.” As to attempted voluntary manslaughter, the trial court, without objection, instructed the jury in pertinent part as follows:

To prove the crime of attempted voluntary manslaughter, as a lesser included offense of Count 1, the State must prove the following elements beyond a reasonable doubt:

Terry Burrows committed an act which was intended to cause the death of Lisa Bynum and would have resulted in the death of Lisa Bynum except that someone prevented Terry Burrows from killing Lisa Bynum or he failed to do so.

. . . .

In order to convict of attempted voluntary manslaughter it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

The jury found the defendant guilty of attempted second-degree murder and child abuse. This appeal followed.

The defendant contends the trial court fundamentally erred by giving the standard jury instruction for attempted manslaughter by act, which erroneously required the jury to find that the defendant “committed an act which was intended

to cause the death” of the victim. Based on this Court’s decisions in Bass v. State, 45 So. 3d 970 (Fla. 3d DCA 2010), and Coiscou v. State, 43 So. 3d 123 (Fla. 3d DCA 2010), we agree and, therefore, reverse the defendant’s conviction and sentence for attempted second-degree murder and remand for a new trial on that charge. However, we certify direct conflict with the Fourth District’s decision in Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010), which holds that the instruction does not constitute fundamental error.

Next, the defendant contends the trial court erred by denying his motion for judgment of acquittal as to the child abuse charge, arguing that the State failed to present any evidence regarding the “mental injury” element of the offense. In support of his argument, the defendant relies on (1) the lack of testimony reflecting that J.E. suffered an actual mental injury as a result of witnessing his mother being brutally attacked by the defendant, and (2) J.E.’s older sister’s testimony reflecting that J.E. is a “normal boy” who is doing well in school. We reject the defendant’s contention.

The defendant was charged with child abuse pursuant to section 827.03(1)(b), which provides in relevant part: “(1) ‘Child abuse’ means: . . . (b) An intentional act that could reasonably be expected to result in physical or mental injury to a child . . . .” (Emphasis added). Although section 827.03 does not define the term “mental injury,” in DuFresne v. State, 826 So. 2d 272, 278-79 (Fla.

2002), the Florida Supreme Court held that the statute “is not unconstitutionally vague because the term ‘mental injury’ is adequately defined in another related statute”—Chapter 39, which is titled “Proceedings Relating to Children.” Section 39.01(42), Florida Statutes (2008), defines “mental injury” as “an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior.”

First, we note that the defendant now argues that the State failed to introduce the very evidence he successfully had excluded. During trial, defense counsel objected when the State asked J.E.’s mother whether J.E. had gone to counseling, and the trial court sustained the objection. Second, the defendant’s argument is erroneous as a matter of law. Pursuant to section 827.03(1)(b), the State was not required to prove actual mental injury to J.E., but only that the defendant’s intentional act “could reasonably be expected to result in . . . mental injury” to J.E. (emphasis added); see Zerbe v. State, 944 So. 2d 1189, 1193 (Fla. 4th DCA 2006) (“The offense of child abuse under subsection (b) [of section 827.03(1)] does not require proof of actual injury; rather, the offense includes any act that is done intentionally that could reasonably be expected to cause mental injury.”); Clines v. State, 765 So. 2d 947, 948 (Fla. 5th DCA 2000) (“As amended, the statutory offense of child abuse is no longer limited to actual physical or mental injury

inflicted on a child. It now includes ‘any intentional act that could reasonably be expected to result in physical or mental injury to a child.’”).

Here, it is undisputed that J.E. witnessed his mother being punched by the

defendant, and when he pleaded with the defendant to stop, the defendant

continued to attack J.E.’s mother by stabbing her multiple times with a knife.

Following the bloody attack, which J.E. fully witnessed, J.E. ran out of the house

crying and screaming. Based on this evidence, there is no doubt that the State

proved that the defendant’s intentional act “could reasonably be expected to result

in mental injury” to J.E. Cf. Baker v. State, 980 So. 2d 616, 616-19 (Fla. 4th DCA

2008) (reversing denial of judgment of acquittal on charge of child abuse filed

under section 827.03(1)(b), where evidence showed that Baker rubbed child’s

stomach; kissed child on cheeks, jaw, and forehead; and during incident, the child

was crying and upset because he did not know Baker). The fact that J.E.’s sister

testified that J.E. is presently doing well in school is not dispositive. Doing well in

school does not negate the finding that the acts J.E. witnessed—his mother being

punched and then stabbed multiple times while he lay next to her—could

reasonably be expected to result in mental injury regardless of when the

manifestations of the injury become apparent. Accordingly, we affirm the trial

court’s denial of the defendant’s motion for judgment of acquittal as to child abuse.

Affirmed in part; reversed in part and remanded for a new trial; conflict

certified.

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed June 15, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-567

Lower Tribunal No. 08-27042

Fidel Fernandez,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler­Mendez, Judge.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Nicholas A. Reed and Michael A. Vera, Certified Legal Interns, for appellant.

Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.

Before GERSTEN, ROTHENBERG, and SALTER, JJ.

PER CURIAM.

Fidel Fernandez appeals a withheld adjudication and sentence of probation

for possession of cannabis with intent to sell. The defendant maintains that the trial court erred in denying his motion to suppress the evidence and his statements based on the unauthorized entry onto his residential property by law enforcement officers. Because we find that the entry was unlawful, we reverse the order denying the suppression motion.

The police narcotics bureau received an anonymous tip that a home in southwest Miami-Dade County was being used as a marijuana hydroponics lab. The police decided to investigate the house. When the police arrived at the house, they set up surveillance around the perimeter of the property.

The one-acre lot was completely enclosed by tall fences, and it was hidden from view by a tall hedge. The house was set back into the lot and not visible from the street. Access to each end of the u-shaped driveway was obstructed by a closed metal gate that could be opened by a remote control device in the defendant’s vehicle near the house and inside the fence. The mailbox was outside the fenced perimeter. As the law enforcement officers arrived, there was no opening into the property.

At some point during the surveillance, an officer with a view of the residence notified others that the defendant had left the house and was getting into the car in the driveway. When the defendant used the remote control device inside the car to open the driveway gate to leave, Sergeant Falcon slipped inside the property through the gate as it opened. Sergeant Falcon waived to Detective

Murillo to enter the property. Murillo drove his car into the driveway, “a couple of feet” from the defendant’s car, blocking the defendant’s exit through the gate.

Sergeant Falcon walked up to the defendant’s car and told the defendant that he needed to talk to him. Detective Murillo also walked up to the defendant’s car and two other officers walked through the open gate into the property. The defendant got out of his car and Sergeant Falcon asked the defendant for consent to search the house. Two officers and the defendant walked back toward the house. Once on the porch, the defendant sat down and asked the Sergeant for clarification of what he was asking. The Sergeant said they just wanted consent. The defendant asked for a few moments to collect his thoughts. The defendant refused to sign a consent form but he opened the door for the police. Once inside, the police found 144 marijuana plants.

The state charged the defendant with possession of cannabis with intent to sell. The defendant filed a motion to suppress the evidence, arguing that the police had trespassed onto the defendant’s property, that the police had no warrant, there was no valid consent, and there were no exigent circumstances to justify the entry. The defense asserted that this illegal entry tainted the remainder of the encounter, requiring suppression of the evidence seized in the house and all of the defendant’s subsequent statements. The trial court denied the suppression motion. The defendant pled to the charge, reserving his right to appeal this denial.

We reverse the denial of the suppression motion. When Sergeant Falcon

slipped into the gate that serendipitously opened while the police were surveilling the property, he committed a trespass onto the defendant’s property. The consent arguably obtained from the defendant after the trespass did not cure the taint of the illegality.

Unlawful Entry

“One seeking the exclusion of evidence as the fruit of an unreasonable search must demonstrate, first, that the government perpetrated the intrusion that led to the discovery of incriminating information.” State v. Butler, 1 So. 3d 242, 246 (Fla. 1st DCA 2008). In this case, it is undisputed that the police committed the intrusion in question. The next inquiry is whether the defendant had “a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” United States v. Dunn, 480 U.S. 294, 316 (1987) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)).

A yard adjacent to a residential dwelling, particularly one blocked from view from the street, “is clothed with a reasonable expectation of privacy from unreasonable governmental intrusion.” Potts v. Johnson, 654 So. 2d 596, 599 (Fla. 3d DCA 1995) (citing Morsman v. State, 360 So. 2d 137, 138 (Fla. 2d DCA 1978)). “A police officer may be held liable in trespass for entering upon the property of another . . . .” Potts, (citing Guin v. City of Riviera Beach, 388 So.2d 604 (Fla. 4th DCA 1980)). There is unrebutted evidence that this defendant had a subjective expectation of privacy in the curtilage of his home. “Putting up fences,

and affirmatively taking express steps to exclude the public or other persons from using the area, seeing into it, or gaining access to the area . . . are ways to establish such a subjective manifestation.” Ratcliff v. State, 783 So. 2d 1099, 1101 (Fla. 5th DCA 2001); Ruiz v. State, 743 So. 2d 581 (Fla. 4th DCA 1999). This defendant had taken great measures to ensure his privacy; the house was surrounded by barriers obstructing a view of the property. This enclosed area constitutes curtilage that falls under the same constitutional protections as the residence it surrounds.1

Section 810.08(1), Florida Statutes (2008), specifies that an unauthorized entry into a “structure” is a trespass and a second-degree misdemeanor. Section 810.011(1), Florida Statutes (2008), defines “structure” to mean “a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.” Webster’s Third New International Dictionary defines “curtilage” as “a yard, courtyard, or other piece of ground included within a fence surrounding a dwelling house.”2

The state argues, however, that Sergeant Falcon was free to enter the premises when the gate opened. That argument is not persuasive because the momentary opening of the gate for the defendant to leave was not an open

1 The defendant testified that the property was posted with “no trespassing” signs, but the law enforcement witnesses testified that they saw no such signs. For purposes of our review here, we assume that the trial court found the police officers’ testimony on this point more credible.

2 Webster’s Third New Int’l Dictionary 558 (1st ed. 1986).

invitation to the public, or by extension to the police, to enter. Certainly, a policeman may enter the curtilage surrounding a home in the same way as a salesman or visitor could. Potts, 654 So. 2d at 599 (citing State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981)). But those are not the facts here. No salesman or visitor could have entered the enclosed curtilage during the momentary opening. The momentary opening of the gate for the express purpose of leaving did not alter the Dunn expectation-of-privacy factors. This was not an opening to invite the public into the area. Here, there was effectively a trespass onto the property.

This case is also distinguishable from the “knock and talk” cases. Here, as in United States v. Quintana, 594 F. Supp. 2d 1291 (M.D. Fla. 2009), this exception will not apply because Sergeant Falcon did not enter the property as a public person would have, through an opening created for that purpose. Nothing in this record would support a finding that the officers “approached the residence ‘just [as] any private citizen [could].’” Quintana, 594 F. Supp. 2d at 1302 (citing United States v. Taylor, 458 F. 3d 1201, 1204 (11th Cir. 2006)). In Quintana, one law enforcement officer jumped a fence surrounding a home and unlocked the gate to allow other officers into the property. The district court found those “actions were beyond what would reasonably be expected of any private citizen such as a mail deliverer or salesperson. Any ‘knock and talk’ exception to the Fourth Amendment warrant requirement did not apply to the troopers’ initial entry onto the paved area near the residence.” Id. Compare State v. Triana, 979 So. 2d 1039

(Fla. 3d DCA 2008) (finding no constitutional infirmity in a seizure that followed a consensual encounter where the police spoke with defendant from outside of the defendant’s gate and the defendant agreed to the search and opened gate to allow police entrance); Ratcliff v. State, 783 So. 2d 1099 (Fla. 5th DCA 2001) (finding no constitutional infirmity in police accessing rear area of business that was open to the public and was not obstructed by any means). The entry in this case violated the defendant’s Fourth Amendment rights and any evidence seized after such entry must be suppressed.

Validity of Subsequent Consent

The defendant’s subsequent consent did not remedy the effect of the illegal entry. There was no break in the chain of events between the illegal entry and the procuring of the consent to the search. When a consent to search is obtained after illegal police activity, such as the illegal entry here, “the unlawful police action presumptively taints and renders involuntary any consent to search.” Gonzalez v. State, 578 So. 2d 729, 734 (Fla. 3d DCA 1991). The taint is only dissipated if “the state proves by clear and convincing evidence that there was a clear break in the chain of events sufficient to dissolve the taint.” Diaz v. State, 34 So. 3d 797, 804 (Fla. 4th DCA 2010) (citing Navamuel v. State, 12 So. 3d 1283, 1286 (Fla. 4th DCA 2009)). See State v. Sakezeles, 778 So. 2d 432, 434 (Fla. 3d DCA 2001) (finding that state bears the burden of showing that the taint is dissipated by subsequent events). Nothing in this record meets this burden.

We reverse the order denying the defendant’s suppression motion. As the state properly agreed at the suppression hearing, that motion was dispositive of the case against the defendant. Therefore, this reversal requires that the trial court, on remand, dismiss the case. Gonzalez.

Reversed and remanded with directions.

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed June 15, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-2219

Lower Tribunal No. 10-17452-A

The State of Florida,

Appellant,

vs.

C.W., a juvenile,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Sarah Zabel,

Judge.

Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Michael J. Skiscim, Jr. and Emily G. Tompkins, Certified Legal Interns, for appellee.

Before GERSTEN, ROTHENBERG, and SALTER, JJ.

PER CURIAM.

The state appeals a trial court order transferring jurisdiction of this cause, in which the state direct-filed an information against the appellee, to the juvenile

division. We reverse based on our holding that the state attorney had discretion to direct-file an information in adult court, notwithstanding the fact that the appellee was seventeen years old.

Section 985.557(b), Florida Statutes (2010), provides that, “[w]ith respect to any child who was 16 or 17 years of age at the time the alleged offense was committed, the state attorney may file an information when in the state attorney’s judgment and discretion the public interest requires that adult sanctions be considered or imposed.” The charges against the juvenile included a felony criminal mischief count.1 Section 985.557(6) affords the prosecutor the discretion to direct-file an information against this appellee. The appellee had no absolute right to be processed and charged as a juvenile. See Reyna v. State, 866 So. 2d 214 (Fla. 3d DCA 2004) (finding that juvenile has no equal protection right to be processed in juvenile, rather than adult, court); Brazill v. State, 845 So. 2d 282, 287 (Fla. 4th DCA 2003) (holding that children do not have absolute right to be tried in juvenile system). In this case, the information was properly filed and the trial court erred in transferring the cause that was otherwise properly before it.

Reversed and remanded.

1 A misdemeanor charge against a juvenile may not be direct-filed “unless the child has had at least two previous adjudications or adjudications withheld for delinquent acts, one of which involved an offense classified as a felony under state law.” § 985.557(b), Fla. Stat. (2010).

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed June 15, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-2621

Lower Tribunal No. 99-43330

Rodney S. Mumford,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Diane V. Ward,

Judge.

Carlos Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge. SCHWARTZ, Senior Judge.

In 2001, the appellant was sentenced to life as a violent career criminal. In 2002, however, the trial court (almost certainly incorrectly1) vacated the VCC designation and imposed instead a “lesser” sentence under the habitual violent felony offender (“HVFO”) statute. The State did not appeal from that order. Notwithstanding, in 2010, the trial court vacated the HVFO sentence which had been imposed in 2002 and re-instated the more severe VCC sentence, see Clines v. State, 912 So. 2d 550 (Fla. 2005)(discussing consequences of various statutory designations), on the ground that the 2002 order vacating that sentence was erroneously entered. That order is now on appeal, and we are compelled to reverse it because the vacation of the less severe HVFO sentence and the re-imposition of the VCC sentence clearly violated the defendant’s double jeopardy rights. It is established law that unless the State appeals, even an objectively erroneous sentencing order may not subsequently be increased or otherwise affected to the detriment of the defendant. See Charles v. State, No. 3D08-198 (Fla. 3d DCA Apr. 13, 2011); Gardener v. State, 30 So. 3d 629, 632 (Fla. 2d DCA 2010); Delemos v. State, 969 So. 2d 544, 550 (Fla. 2d DCA 2007). Pate v. State, 908 So. 2d 613, 615 (Fla. 2d DCA 2005), applies these rules to a factual and legal situation very similar

1 The 2002 court incorrectly determined that the defendant’s prior convictions for burglary did not qualify for designation under the VCC statute. See Curi v. State, 36 So. 3d 853 (Fla. 3d DCA 2010); Ubilla v. State, 8 So. 3d 1200 (Fla. 3d DCA 2009), and cases cited therein.

to this. As the appellant correctly argues:

In Pate, the trial court’s written order granted the defendant’s motion to correct an illegal sentence and reduced his sentence. The trial court later issued a second order denying the motion to correct sentence and reinstating the original sentence. The Second District concluded this violated the constitutional protection against double jeopardy. The court agreed that the entry of the first order granting the defendant’s motion to correct an illegal sentence constituted reversible error based on the State’s lack of notice and opportunity to be heard with respect to the entry of that order. Pate, 908 So. 2d at 615. However, the court held that the State was required to challenge that sentencing error by direct appeal, and having failed to do so double jeopardy principles barred the trial judge from reinstating the sentence originally imposed. Id.; see also Delemos, 969 So. 2d at 550 (“[E]ven if the sentence on count 5 were illegal for failing to include the minimum mandatory term, this court has previously held that double jeopardy bars an increase in a sentence once it is imposed and the defendant begins serving it, at least in the absence of a proper appeal, ‘even if the original sentence was illegal or otherwise erroneous and the correction conforms to applicable law or to the court’s and parties’ intentions at sentencing.’ . . . . Under those circumstances, the State is compelled to object and appeal the sentence or the sentence stands as originally imposed.”)

For these reasons, the 2010 sentencing order under review is vacated and the cause remanded for proceedings consistent herewith.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

DONALD BAKER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D07-4895

[June 15, 2011]

PER CURIAM.

Affirmed. Further, we modify our order of September 9, 2009, which denied appellant’s coram vobis petition “without prejudice to refile after the present appeal is disposed of.” The petition is herein simply denied. A petition for coram vobis once could be used to collaterally challenge a conviction in appellate court for which petitioner was no longer in custody. Coram vobis relief (brought in appellate court) and coram nobis relief (brought in trial court) are no longer necessary or available in Florida. Rule 3.850 has supplanted both coram nobis and coram vobis. See Wood v. State, 750 So. 2d 592, 594 (Fla. 1999); see also Bates v. State, 887 So. 2d 1214, 1217 (Fla. 2004).

POLEN, STEVENSON and HAZOURI, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 03-06863 CF10A.

Donald Baker, Hollywood, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

ANTHONY TEDESCO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-4634

[June 15, 2011]

GERBER, J.

The appellant appeals the circuit court’s order committing him as a sexually violent predator pursuant to the Jimmy Ryce Act, section 394.910 et seq., Florida Statutes (2009). The appellant primarily argues that the circuit court denied him due process by compelling him to go to trial without any notice of the trial date. The record supports the appellant’s argument. Therefore, we reverse and remand for a new trial.

On September 14, 2009, near the end of the appellant’s prison sentence, the state filed a petition seeking to have the appellant committed as a sexually violent predator. On September 15, 2009, the circuit court determined that probable cause existed to believe the appellant is a sexually violent predator. The court ordered the state to have the appellant immediately transferred from state prison to the county jail for a September 25, 2009 status hearing.

On September 24, 2009, the state filed with clerk the summons notifying the appellant of the petition. At the September 25, 2009 status hearing, th e appellant requested to represent himself. Th e court conducted a Faretta inquiry and found that the appellant could represent himself. The court then announced that the trial would occur on October 19, 2009.

When [the appellant] was in court on September 25th, the case was set for October 19th. On September 25th, after court, the case was reset for trial today, October 5th. Unfortunately, the clerk did not send copies of that notice to [the appellant].

(emphasis added). The court added that the trial was reset due to the “statutory guidelines” and “needs to be tried this week.” The following exchange then occurred between the appellant and the court:

APPELLANT: I’d like to place an objection on the record. I didn’t have enough time. I’m trying to get my evidence together for this trial and I just found out through no mistake of my own the trial has been set for October 5th and I’m preparing for October 19th. I’ve got evidence I’m trying to get myself.

THE COURT: All right. Well, if you’re not ready to go to trial, sir – APPELLANT: I’m not waiving my speedy trial right.

THE COURT: Well, then you’re going to trial. . . . By statute these particular proceedings need to be done in a certain fashion in a time period. So, you can either waive that time period, which if you’d like to do –

APPELLANT: I’m not waiving the speedy trial. THE COURT: You’re not waiving that. All right.

The court then directed the clerk to give questionnaires to prospective jurors waiting in the jury room so that jury selection and the trial could commence the following morning. The trial indeed commenced the following morning. After two days of trial, the jury returned a verdict finding that appellant is a sexually violent predator. The court entered a final judgment committing the appellant as a sexually violent predator.

The appellant then filed this appeal. He primarily argues that the circuit court denied him due process by compelling him to go to trial without any notice that the court reset the trial for October 5th.

We agree with this argument. “Procedural due process requires both reasonable notice and a meaningful opportunity to be heard.” N.C. v. Anderson, 882 So. 2d 990, 993 (Fla. 2004) (citation omitted). “‘[T]he specific parameters of the notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of

law, but rather by the requirements of the particular proceeding.’” Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1236 (Fla. 2009) (citation omitted).

In this proceeding, the appellant was not given any notice of the October 5th trial date until he walked into court that day. It is not relevant that the clerk’s inadvertence caused the lack of notice or that jury selection and testimony did not commence until the following day. Going to trial without notice deprived the appellant of a meaningful opportunity to be heard. Because the appellant did not receive either reasonable notice or a meaningful opportunity to be heard, he was denied procedural due process.

The circuit court’s inquiry of the appellant as to whether he wanted to waive the time period for trial was unnecessary for two reasons. First, the court mistakenly believed that due to “statutory guidelines” the case “needs to be tried this week.” We presume that the “statutory guidelines” to which court was referring was section 394.916(1), Florida Statutes (2009), which states: “Within 30 days after the determination of probable cause, the court shall conduct a trial to determine whether the person is a sexually violent predator.” However, section 394.916(1) no longer sets the date by which trial is to commence. On July 9, 2009, our supreme court adopted th e Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators. In re Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators, 13 So. 3d 1025, 1027-28 (Fla. 2009). Among those rules was rule 4.240(a), which states, in pertinent part: “The trial to determine if the respondent is a sexually violent predator shall be commenced within 30 days after the summons has been returned served and filed with the clerk of the court.” (emphasis added). Because rule 4.240 conflicts with section 394.916(1) as to the date by which trial is to commence, the rule controls. See Massey v. David, 979 So. 2d 931, 937 (Fla. 2008) (where the supreme court promulgates rules which relate to practice and procedure, and a statute provides a contrary practice or procedure, the rule controls to the extent of the conflict). Applying rule 4.240 here, the thirtieth day after the summons was served and filed was Saturday, October 24, 2009, meaning that the rule did not require the circuit court to commence trial until Monday, October 26, 2009. See Fla. R. Civ. P.– S.V.P. 4.090(a) (2009) (“The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday.”). Thus, the court could have maintained the original October 19, 2009 trial date.

Second, the time periods set forth in the Jimmy Ryce Act and the new rules of procedure are unrelated to the constitutional right to a speedy trial. Under both the Act and the rules, a court can continue a trial “on its own motion in the interests of justice, when the person will not be substantially prejudiced.” § 394.916(2), Fla. Stat. (2009); Fla. R. Civ. P.– S.V.P. 4.260 (2009). Thus, rather than asking the appellant to waive the time period for trial, the court simply could have continued the trial on its own motion to give the appellant the time originally allowed to him to prepare for trial.

Based on the foregoing, we reverse the final judgment committing the appellant as a sexually violent predator and remand for a new trial on the state’s petition. Consistent with rule 4.240(a), we direct the circuit court to conduct a status hearing within five days after our mandate issues. The trial to determine if the appellant is a sexually violent predator shall be commenced within thirty days after our mandate issues, unless that period is waived or continued pursuant to the new rules of civil procedure for involuntary commitment of sexually violent predators. For the circuit court’s and the parties’ guidance in the new trial, we find that points two, three, and four which the appellant has raised in this appeal are without merit.

Reversed and remanded.

TAYLOR, J., and PEGG, ROBERT L., Associate Judge concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen M. Miller, Judge; L.T. Case No. 2009RA900001A02.

Anthony Tedesco, Arcadia, pro se.

Pamela J o Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, 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 2011

DENNIS BRYAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-632

[June 15, 2011]

POLEN, J.

Appellant, Dennis Bryan, appeals the order of the trial court denying his motion to suppress evidence and the subsequent judgment of conviction against him. We find that the trial court erred in its denial of Bryan’s motion to suppress evidence which was seized during a warrantless search of his home.

An anonymous tip was called into the police department and officers were dispatched to 15 Redwood Circle in Plantation, Florida. Officers were told that there were three black males in front of the home by a white sports utility vehicle (“SUV”), with possible narcotics on the hood, and that one of them had a handgun. When the first officer, Officer Tofexis, arrived, there were people in front of the house and children riding their bikes, but there was nobody matching the description from the tip. Only a white SUV parked outside coincided with the dispatcher’s information.

Officer Tofexis waited for additional police units to search the premises because three individuals, one with a handgun, were the subjects of the call. The officers first ensured no one was inside the vehicle and then began to search the perimeter of the house. When Officer Tofexis and an assisting unit, Officer Bickham, neared the gate to the house, Officer Tofexis thought she heard voices coming from the backyard. Officers Tofexis, Bickham, and additional officers Radziwon and Miller approached the back of the house to see if anyone was there and possibly armed. The officers were primarily concerned with the safety of those on the street, so, without obtaining a warrant, they entered through the gate. When the officers reached the back door, they

looked through a broken window to see if anyone was in the home and they noticed a green, leafy substance that appeared to be marijuana and the strong odor of marijuana coming from the house.

The officers returned to the front of the house and saw a black male, Omar Maxwell, inside. Maxwell exited the house up o n Officer Radziwon’s request, leaving the front door open. Officer Tofexis could see marijuana in the kitchen through the open front door, but no additional suspects were visible in the home. After Maxwell was searched for weapons and detained, appellant, Dennis Bryan, walked up to his house. Out of concern for the safety of the officers and those in the street, a protective sweep was performed to see if a third suspect was in the house with the reported weapon. Officer Radziwon admitted at trial that the sweep was done solely based on the anonymous tip that came into the police department and that no efforts were made to corroborate the tip.

The trial court supported the officers’ entry into Bryan’s backyard to conduct a “limited search” pursuant to the tip. It was concluded that the tip was corroborated when the vehicle was spotted outside the house and again when drugs were seen inside the house through a window while officers were in the backyard. Once the officers spotted Maxwell inside the home and recognized he was a black male, in further corroboration of the tip, the court determined a protective sweep was appropriate.

The trial court denied Bryan’s motion to suppress the evidence found in his home and allowed Bryan to reserve the right to appeal. Bryan pled no contest and the court stayed his sentence, pending the outcome of the appeal. This appeal followed.

“[T]he standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.” State v. Goodwin, 36 So. 3d 925, 926 (Fla. 4th DCA 2010); State v. Abbey, 28 So. 3d 208, 210 (Fla. 4th DCA 2010).

Warrantless searches are per se unreasonable and subject to only a few exceptions. Bryan relied on Coolidge v. New Hampshire to support his position that there must be an exigent circumstance that made a warrantless search “imperative.” 403 U.S. 443, 455 (1971). Exigent circumstances have been defined as “‘the sort of emergency or dangerous situation . . . that would justify a warrantless entry into a home for the purpose of either arrest or search.’” Riggs v. State, 918 So. 2d 274, 278 (Fla. 2005). To rise to this level, the emergency must be so that it “‘makes a warrantless search imperative to the safety of the police and of

the community.’” Id. Safety is threatened when a need exists “‘to protect life and to prevent serious bodily injury.’” Id. at 279.

Backyard Entry

This court has noted that any area within the curtilage of the home deserves the same protection as the home itself. Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So. 2d 1040, 1057 (Fla. 4th DCA 2003). “Curtilage can include the backyard of a residence.” Id. As stated above, warrantless searches are per se unreasonable if there is no applicable exception, but police need have only a reasonable belief that exigency exists to conduct a warrantless, narrow search. See Mincey v. Arizona, 437 U.S. 385, 392 (1978); Warden v. Hayden, 387 U.S. 294, 299 (1967).

In Relgalado v. State, 25 So. 3d 600, 606-07 (Fla. 4th DCA 2009), the officer actually saw a gun, yet it was deemed improper for the officer to take action because the mere observation of a gun was not an indication that a crime had been or was going to be committed. This court explained that an anonymous tip without any signs of past, present, or future criminal activity cannot give rise to a constitutional stop or search.

Despite the obvious potential danger to officers and the public by a person in possession of a concealed gun in a crowd, this is not illegal in Florida unless the person does not have a concealed weapons permit, a fact that an officer cannot glean b y mere observation. Based up o n our understanding of both Florida and United States Supreme Court precedent, stopping a person solely on the ground that the individual possesses a gun violates the Fourth Amendment. In this case, neither the anonymous tip nor the officer’s observations revealed any suspicion of past, present, or future criminal activity. Therefore, there was no authority for the officer to pull his gun and order the defendant to the ground.

Id. (emphasis added; footnote omitted).

Here, officers entered the curtilage of the home to investigate acting solely on an anonymous tip, only corroborated the tip to the extent that a white SUV was in front of the home, and had no indication from viewing the scene that a crime had been, was being, or would be committed. The officers were concerned that a gun and drugs were seen on the hood of the SUV, and there were children playing in the neighborhood, but when the officers arrived at the scene there did not appear to be anyone in

sight that may have a gun. The circumstances did not present a situation of exigent circumstances justifying intrusion into the curtilage of the house despite the fact that the SUV was parked in front. Because a warrantless search is unlawful when no exception applies and because the State did not prove through testimony or evidence that some reasonable belief of exigency existed, a warrant should have been obtained before police entry into Bryan’s backyard.

As such, the entry into Bryan’s backyard was improper and any evidence obtained as a result of that entry should have been suppressed at trial. That would include the observation of drugs in the house, which led to the sweep of the home.

Decisions regarding law enforcement are always difficult. Police officers have extraordinarily tough jobs and we cannot ask officers to take unreasonable risks while performing their duties. However, in this case, a warrantless search was unjustified. It would have been proper for the officers to make contact with any suspects encountered in public areas or approached as a lawful citizen encounter and obtain a warrant before conducting a search of the home.1 But that did not happen. Thus, it is this court’s decision to reverse the trial court’s denial of Bryan’s motion to suppress.

Reversed.

WARNER and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale C. Cohen, Judge; L.T. Case No. 08-6649 CF10A.

Carey Haughwout, Public Defender, and Peggy Natale, 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.

1 As we noted earlier, mere possession of a gun is not illegal in Florida. If the officers in this case would have remained on the scene while awaiting the issuance of a warrant and other factors gave the officers reasonable suspicion that criminal conduct was imminent, such might have been enough to create exigent circumstances, thus justifying a warrantless search. However, that did not occur here.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

LORI TAPPER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-947

[June 15, 2011]

PER CURIAM.

The appellant, Lori Tapper (hereinafter “defendant”), appeals revocation of her probation after the trial court found that she violated its terms by using intoxicants to excess not prescribed by a physician. We find no abuse of discretion in the trial court finding and determining valid grounds to revoke defendant’s probation. However, a formal, written order of revocation of probation is required pursuant to Florida Rule of Criminal Procedure 3.995. See Green v. State, 23 So. 3d 820, 821 (Fla. 4th DCA 2009). We affirm the revocation of probation and subsequent sentence, but remand the case for the trial court to enter a written order of revocation of probation.

MAY, DAMOORGIAN and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John J. Hoy, Judge; L.T. Case No. 2008CF000145AMB.

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

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