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Courtesy of David Edelstein

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JOSEPH ELI BEARDEN,

 

Appellant,

 

v.                              Case No. 2D09-1325

 

STATE OF FLORIDA,

 

Appellee.

 

Opinion filed April 13, 2011.

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

Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Joseph Eli Bearden challenges his judgment and life sentence for second-degree murder. On appeal, Bearden makes two closely related arguments. First, he argues that the trial court erred in refusing to allow a witness to testify that she heard

Ray Allen Brown admit to committing the offense for which Bearden was convicted. Second, Bearden contends that the trial court erred in prohibiting him from questioning Ray Allen concerning Ray Allen’s purported declarations against penal interest.1 We find no error and affirm Bearden’s judgment and sentence. We write to explain our reasoning.

I. THE FACTS

The murder victim was a young man named Ryan Skipper. On March 14, 2007, his body was found on the side of Morgan Road in the Wahneta area—he had been stabbed to death. The evidence at trial reflected that on March 13, 2007, Skipper left home in his car after taking a telephone call at 11:10 p.m. Shortly thereafter, he encountered Bearden, who was walking on the side of the road. Skipper picked up Bearden and drove a few blocks to J.T. Brown’s home. While Skipper waited outside, Bearden went inside and unsuccessfully attempted to trade a used laptop computer for drugs. Present in the residence were J.T. Brown, Ray Allen Brown (J.T.’s son), John Kirchoff (who was temporarily living there), and William Brown (J.T.’s nephew). All four of these men were methamphetamine users.

The events that followed Skipper and Bearden’s arrival at the Brown residence led to Skipper’s murder. And there was no question that William Brown wielded the knife used to kill Skipper.2 But, as discussed below, Bearden’s conviction

1Bearden also makes two claims of ineffective assistance of trial counsel. We decline to consider these claims on direct appeal. Our affirmance is without prejudice to Bearden’s right to file a timely postconviction motion raising these claims. See Johnson v. State, 942 So. 2d 415, 416 (Fla. 2d DCA 2006).

2William Brown was tried and convicted of the first-degree murder of Skipper. His appeal is currently pending in this court under case number 2D10-74.

hinged on whether the jury accepted his version of the events as reflected in his pretrial statement3 or the version testified to by J.T., Ray Allen, and Kirchoff at trial. Bearden’s version implicated William and Ray Allen in the murder; J.T., Ray Allen, and Kirchoff’s version implicated William and Bearden.

J.T., Ray Allen, and Kirchoff testified that after Bearden and Skipper arrived, the generator providing electrical power to the residence began to falter because it was low on fuel. They asked Skipper to drive to a nearby gas station to buy gas for the generator. According to them, Skipper was accompanied on this trip by William, Ray Allen, and Kirchoff. Skipper and the three men returned from the gas station without incident. Thereafter, William, Bearden, and Skipper left in Skipper’s car while Ray Allen remained at home for the rest of the night and went to sleep.

This testimony conflicted with Bearden’s pretrial statement that the trip to the gas station was a ruse to permit the Browns to rob Skipper. Bearden also claimed that only William and Ray Allen went with Skipper to buy gas and that they returned alone in Skipper’s car. When they returned, the men and the car were covered in blood. Although Bearden acknowledged that he knew of the Browns’ plan to rob Skipper, he claimed to have no idea that they would kill him. He admitted that he and William cleaned the car and unsuccessfully attempted to sell it or trade it for drugs. But he denied assisting in Skipper’s murder or being present when Skipper was killed.

Thus the critical issue of fact at Bearden’s trial was whether Skipper was stabbed on the trip to get gas, as Bearden claimed, or when Skipper drove away from

3Bearden did not testify in his own defense. But a few days after Skipper’s murder, Bearden voluntarily gave detectives a taped statement. The State played this statement for the jury at Bearden’s trial.

the Browns’ residence after returning safely from that trip, as the State’s witnesses suggested. William—the person who actually stabbed Skipper—was in the car on both trips. If the killing occurred during the trip to the gas station, Ray Allen was directly implicated in the killing because he went along on that trip, but Bearden did not. If the killing occurred after Skipper left the Brown residence the second time with William and Bearden, then Bearden was implicated and Ray Allen—who remained at the Brown residence and went to sleep—could not have had any direct involvement in the killing.

Skipper’s partially burned car was discovered near a boat ramp at a lake in the area. Law enforcement officers recovered several sets of fingerprints from the vehicle, including Bearden’s and William’s fingerprints. After law enforcement officers arrested Bearden, a grand jury indicted him for first-degree murder and robbery with a deadly weapon. The State sought the death penalty, but the jury’s verdict of second-degree murder eliminated the death penalty as a sentencing option.4 On the count charging Bearden with robbery with a deadly weapon, the jury found him guilty of the lesser-included offense of grand theft of a motor vehicle. The trial court sentenced Bearden to five years in prison on the grand theft of a motor vehicle conviction, to run concurrently with his life sentence. Bearden does not challenge his conviction and sentence for grand theft of a motor vehicle.

4In a separate information, the State charged Bearden with accessory after the fact to first-degree murder, tampering with physical evidence, and dealing in stolen property. Bearden moved to consolidate the two cases, and the trial court granted his motion. Bearden has not appealed the disposition of the charges filed in the separate information, and we do not address those matters further.

II. THE PERTINENT EVENTS AT TRIAL

At issue in this appeal is the trial court’s exclusion of testimony that would have supported Bearden’s version of the events that led to Skipper’s death. Bearden’s case went to trial in February 2009, almost two years after the murder. On the second day of trial, the prosecutor’s office received a telephone call from a previously unknown witness, Angela Tyler, and the Sheriff’s Office sent a detective to take her statement.

Tyler told the detective that Ray Allen had admitted to her a few days after the murder that it was he, not Bearden, who was with William in the car when William stabbed Skipper. The prosecution sent a copy of Tyler’s statement to defense counsel. The defense then notified the court of its intention to call Tyler as a defense witness, indicating that it planned to use her testimony to impeach the anticipated testimony of Ray Allen. The prosecution had planned to call Ray Allen as a witness in its case-in­chief. But after Tyler’s deposition was taken, the prosecutor announced that the State would not be calling Ray Allen as a witness. The State’s motive for this sudden change in its trial strategy was obvious. Ray Allen’s testimony would be cumulative to that of J.T. and Kirchoff. Everyone expected Ray Allen to deny any involvement in Skipper’s killing, and the State did not wish to give the defense an opportunity to impeach him by asking him if he had made the purported statements to Tyler.

After the prosecution rested its case-in-chief without calling Ray Allen as a State witness, the defense announced that it would call him as a defense witness. The trial court cautioned that the defense could not call Ray Allen as a witness for the sole purpose of developing impeachable testimony. In addition, it instructed the defense that

no questions could be asked about his purported statements to Tyler until her testimony had been proffered to the court.

Despite the trial court’s cautionary instruction, the defense called Ray Allen to the stand before proffering Tyler’s testimony. And, as discussed above, his testimony echoed that of the State’s witnesses, J.T. and Kirchoff, which was not helpful to the defense. In accordance with the trial court’s express ruling, defense counsel did not ask Ray Allen about his purported statements to Tyler. When Ray Allen left the witness stand, it was noted that he was “subject to recall.”

Later, the defense proffered Tyler’s testimony to the court. She testified that she knew Bearden and the Brown family, who lived down the road from her parents’ home. Tyler had maintained “a dating relationship . . . [o]ff and on for about three years” with Junior Brown (J.T.’s son and Ray Allen’s brother).

According to Tyler, she met Ray Allen at her mother’s house on March 18, 2007. Ray Allen was upset, and she asked him what was wrong. Tyler gave the following account of Ray Allen’s response:

[Ray Allen] said that he had got—that he was with his cousin, [William]. [William] had gotten into a confrontation with a gay guy, and they had an argument, and he had

stabbed the guy. And he was with his cousin when he did it.

. . . .

. . . I had asked him if he was involved in the murder, or like the stabbing, because I didn’t know there was a murder at the time, and he said no, that he didn’t involve in the murder, I guess, or whatever. He said that he had to help his cousin, though, was his exact words, because they was family.

. . . .

[Ray Allen] was just telling me about him and his cousin was in a vehicle with a guy, and the guy had tried his cousin, I guess like sexually, I don’t know. And his cousin had gotten upset and stabbed the guy. And that’s when he told me he was in the car when it happened.

After speaking with Ray Allen, Tyler had no doubt that he had admitted that he was with William and had helped him when Skipper was killed, even though he denied actually stabbing Skipper.

If Tyler’s testimony were true, then Ray Allen’s admissions inculpated him in Skipper’s killing. Although Bearden could not deny that he was involved in cleaning Skipper’s car and attempting to dispose of it, Ray Allen’s purported admissions would exonerate Bearden of any direct involvement in Skipper’s death.

After proffering Tyler’s testimony, the defense made two requests. First, it requested to recall Ray Allen to ask him whether he had made the purported statements to Tyler. Second, it requested to present Tyler’s testimony about the purported statements to the jury.

The trial judge found that the proposed evidence was inadmissible under the Evidence Code and indicated that it would only be admissible if it met the four-part test of Chambers v. Mississippi, 410 U.S. 284 (1973). The trial judge outlined the four-part test of Chambers as follows: (1) the confession or statement was made

spontaneously to a close acquaintance after the crime occurred; (2) the confession or statement is corroborated by other evidence in the case; (3) the confession or statement is self-incriminating and unquestionably against interest; and (4) if there is any question about the truthfulness of the confession or statement, the declarant must be available for cross-examination.

The trial judge reserved ruling on the defense’s requests so that he could consider them over the evening. The following day, the trial judge ruled that Ray Allen’s purported statements to Tyler met only the first and fourth parts of the Chambers test.

In the trial judge’s view, the statements were not corroborated by other evidence in the case and were not against Ray Allen’s penal interest. The trial judge also denied the defense’s request to recall Ray Allen to ask him about his purported statements to Tyler. The trial judge concluded by stating, “I believe that we’ve eliminated Angela Tyler and Ray [Allen] Brown from being recalled.”

III. DISCUSSION

A. Calling Ray Allen Brown for Impeachment Purposes

We consider Bearden’s second argument first. Bearden contends that the trial court erred in refusing to permit him to recall Ray Allen to ask him about his purported statements to Tyler. But before the defense asked to recall Ray Allen, the trial court had ruled that—under the Evidence Code—the defense could not call Ray Allen for the sole purpose of developing impeachable testimony. Recalling Ray Allen for this purpose would only be permissible under a Chambers analysis.

Florida courts generally disapprove of calling a witness for the primary purpose of developing impeachment evidence. See Morton v. State, 689 So. 2d 259, 264 (Fla. 1997), receded from on other grounds by Rodriguez v. State, 753 So. 2d 29, 47 (Fla. 2000). However, “a party may always impeach its witness if the witness gives affirmatively harmful testimony.” Id.; see also § 90.608, Fla. Stat. (2008) (“Any party, including the party calling the witness, may attack the credibility of a witness by . . . [i]ntroducing statements of the witness which are inconsistent with the witness’s present

testimony.”). But even though section 90.608 permits a party to impeach its own witness, “it is still improper under Florida law for a party to call a witness merely as a device to place the impeaching testimony before the jury.” Curtis v. State, 876 So. 2d 13, 20 (Fla. 1st DCA 2004) (citing Morton, 689 So. 2d 259).

When Bearden’s trial began, Ray Allen was slated to appear as a witness for the prosecution. It was only after Tyler surfaced as a potential witness—almost two years after Skipper’s death—that the State lost interest in Ray Allen as a witness and the defense suddenly decided to present his testimony. As previously noted, Ray Allen’s testimony for the defense was cumulative to that of J.T. and Kirchoff and was simply not helpful to the defense. In seeking to recall Ray Allen, the defense was clearly not anticipating a dramatic, Perry Mason-style moment during which Ray Allen would confess that it was he and not Bearden who was present in the car when William stabbed Skipper to death. Undeniably, the defense’s sole reason for seeking to recall Ray Allen was to develop impeachable testimony. The trial court correctly ruled that the defense could not recall Ray Allen for this purpose unless Tyler’s testimony was admissible under Chambers. This conclusion brings us to consideration of Bearden’s first point on appeal.

B. Admissibility of Angela Tyler’s Testimony under Chambers

Bearden argues that the trial court erred in excluding Tyler’s testimony that Ray Allen told her that he had helped William kill Skipper. Bearden contends that Tyler’s testimony was admissible under a proper Chambers analysis. Because this point presents a close question, a brief review of Chambers is in order.

Chambers was charged with murder but claimed that a person named McDonald was the actual perpetrator. Chambers, 410 U.S. at 289. Because the prosecution did not call McDonald as a witness, Chambers called McDonald as a defense witness. Id. at 291. As a result of Mississippi’s party witness rule (a rule that— similar to Florida law—prohibits a party from calling its own witness for the purpose of impeachment) and hearsay rules, Chambers “was unable either to cross-examine McDonald or to present witnesses in his own behalf who would have discredited McDonald[] . . . and demonstrated his complicity.” Id. at 294. The United States Supreme Court found that the application of these rules denied Chambers his due process right to a fair trial. Id. at 302-03. With regard to the out-of-court statements against interest, the Supreme Court added that in certain circumstances, “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. at 302.

The Supreme Court noted that the hearsay statements that Chambers tried to introduce into evidence were made “under circumstances that provided considerable assurance of their reliability.” Id. at 300. In Chambers, McDonald had confessed to three close acquaintances, the confessions were spontaneous, the confessions were corroborated by other evidence, and the statements were self-incriminatory and against McDonald’s penal interest. Id. at 300-01. Although there was a great deal of other corroborating evidence, the Supreme Court said that “[t]he sheer number of independent confessions provided additional corroboration for each.” Id. at 300.

The Supreme Court’s holding in Chambers may be reasonably interpreted as calling for a four-pronged test to determine the admissibility of hearsay evidence of an out-of-court confession: (1) the statement must be spontaneous, (2) there must be some external corroboration for the statement, (3) the statement must be against the declarant’s penal interest, and (4) the declarant must be available to testify. See, e.g., Curtis, 876 So. 2d at 21-22. But Chambers does not necessarily establish an immutable checklist of four requirements. Instead, the primary consideration in determining admissibility is whether the statement bears sufficient indicia of reliability:

Out-of-court statements are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that

impress the speaker with the solemnity of his statements; the declarant’s word is not subject to cross-examination; and he

is not available in order that his demeanor and credibility may be assessed by the jury. A number of exceptions have developed over the years to allow admission of hearsay statements made under circumstances that tend to assure

reliability and thereby compensate for the absence of the oath and opportunity for cross-examination. Among the most prevalent of these exceptions is the one applicable to declarations against interest—an exception founded on the assumption that a person is unlikely to fabricate a statement against his own interest at the time it is made.

Chambers, 410 U.S. at 298-99 (footnote omitted) (citation omitted). In any case, the four-pronged test provides a helpful framework for the analysis of specific cases.

Here, the trial court held that Bearden had met prong one (spontaneous statement) and prong four (declarant available to testify). However, the trial court also found that Bearden had not met either prong two (corroboration) or prong three (declaration against penal interest). With regard to the third prong, the trial court explained its reasoning as follows:

Here, the statement was made to an alleged acquaintance, not the police. Two, the statement is shifting the burden. It’s not saying I killed him, he said [William] Brown killed him.

. . . .

. . . [T]he statements that [Tyler] alleged he made that could be considered against penal interest was, he’s, he’s

kin, and I helped him. And some of these cases talk about it can’t be something vague. It must be truly against penal

interest. I helped him, with nothing more than that, that’s not chargeable.

. . . So I don’t see any corroboration to what he admits could be considered a statement against interest.

I don’t believe it’s based on that, that it is, in fact, truly

a statement against interest. I go back to the case that I rely on that Butler[5] didn’t merely imply guilt, he said I killed him. In Chambers, the case that—that this exception was created out of, he admitted he killed him. And, in fact, in every single case I’ve read, the party making the statement admitted to substantial involvement, not some vague involvement that he’s kin, and I helped him.

. . . .

. . . I don’t think this was truly a statement that could be considered against his penal interest because without substantially more than what we heard yesterday [at the proffer], I don’t believe there’s any way the state, or Mr. Brown, could believe that his statement was against his

penal interest, or that the state could bring charges against him.

On this point, we disagree with the trial court’s conclusion.

In reaching its conclusion, the trial court relied on the vague nature of the remarks attributed to Ray Allen and on the absence of a detailed explanation con?

5The trial court’s reference is to Brenton Butler, the juvenile who had confessed to the murder and robbery for which another man was tried and convicted in Curtis v. State, 876 So. 2d 13 (Fla. 1st DCA 2004).

cerning how Ray Allen had actually assisted William in killing Skipper. The trial court’s reasoning is surprisingly incongruous with the facts of the State’s case against Bearden. The State offered no evidence concerning how Bearden had allegedly assisted William in killing Skipper. The State’s evidence about Bearden’s involvement in the killing was vague and general; its proof was limited to placing Bearden in the car when William stabbed Skipper. But this was sufficient for the State to charge Bearden with first-degree murder and to seek the death penalty against him. The State’s evidence was no more specific about Bearden’s involvement in the killing than the statements that Ray Allen purportedly made to Tyler. For these reasons, we agree with Bearden that the statements attributed by Tyler to Ray Allen were unquestionably against Ray Allen’s penal interest. Thus the third prong of Chambers is satisfied.

The second prong of the Chambers test, corroboration, is a different matter. The trial court found that the purported statements made by Ray Allen to Tyler were not corroborated. The trial court offered two main reasons for its ruling. First, the purported statements were not corroborated by any evidence in the case except for Bearden’s pretrial statement. Indeed, the remaining evidence in the case was in direct conflict with the substance of the purported statements. The trial court’s second reason focused on Tyler’s credibility. As the trial court observed, Tyler claimed to be close friends with both the Brown family and Bearden. Nevertheless, despite these friendships and the extensive media coverage of the case, Tyler had not mentioned the substance of the statements to anyone connected with the case for almost two years. A recipient’s substantial delay in coming forward with a hearsay account of a declarant’s confession to a crime may be considered in assessing the reliability of the recipient’s

account of the confession. Jones v. State, 709 So. 2d 512, 525 (Fla. 1998). The trial court also pointed out that Tyler’s account did not include any details that would not have been known to anyone in Polk County who had followed the reports about the case that appeared in the local press and on television. Finally, the trial court questioned how Tyler could pinpoint the date of her alleged conversation with Ray Allen almost two years after the event. Tyler’s recollection of this detail seemed too good to be true. In short, Tyler’s testimony about the purported statements was not credible.

The trial court correctly noted that the only direct corroboration of Tyler’s account of the purported statements was Bearden’s prearrest statement to detectives. Bearden argues that his statement constitutes sufficient corroboration to satisfy Chambers’ third prong, citing the First District’s decision in Curtis, 876 So. 2d 13.

In Curtis, a third party named Butler had confessed to the police that he had shot a murder victim. Id. at 16. The case against Butler for the murder went to trial, and he was acquitted. Id. Before Curtis’ trial for the same murder, Butler gave a deposition repudiating his earlier confession and denying that he shot the victim. Id. The State made a pretrial motion to exclude evidence about Butler’s earlier confession. Id. The State argued that Butler’s confession was not admissible as a statement against interest because Butler was available to testify. Id.; see § 90.804(2)(c), Fla. Stat. (2001). The trial court granted the State’s motion and ruled that evidence of Butler’s confession would be excluded at Curtis’ trial. Curtis, 876 So. 2d at 16. At trial, the defense proffered Butler’s earlier confession, but the trial court adhered to its pretrial ruling and excluded the proffered evidence. Id. at 18. Curtis was convicted of first-degree murder and armed robbery, and he appealed. Id.

On appeal, the First District reversed and remanded the case for a new trial. Id. at 16. The Curtis court acknowledged that under Florida law it is improper for a party to call a witness for the sole purpose of placing impeachment testimony before the jury. Id. at 20. Nevertheless, the court found that the due process considerations discussed in Chambers required the trial judge in Curtis’ case “to admit a third-party confession under constitutional principles, even if it does not qualify as a declaration against penal interest under the state law of evidence.” Id. at 21. The First District explained that, as in Chambers, Butler’s confession was made under circumstances that provided an assurance of reliability. Id. at 21-23.

We find little similarity between this case and Curtis. Here, the trial court was confronted midtrial with the surprise appearance of a previously unidentified witness nearly two years after Skipper’s death. This witness, who described herself as a friend of Bearden, claimed that Ray Allen had admitted to her that he was in the car with William when Skipper was killed. Under this questionable scenario, the trial court could reasonably conclude that the statements attributed to Ray Allen by Tyler fell short of an out-of-court confession made “under circumstances that provided considerable assurance of [its] reliability.” Chambers, 410 U.S. at 300.

We also consider the doubts expressed by the trial court about Tyler’s credibility as a witness. Bearden argues that Tyler’s credibility was a matter for the jury to decide. Although this argument has some appeal, we disagree. The trial court’s task was to determine—before allowing the jury to hear Tyler’s testimony—whether the purported hearsay statements of Ray Allen bore sufficient indicia of reliability. To the extent that Chambers requires an analysis of the reliability of the proposed third party’s

out-of-court confession, an evaluation of the credibility of the witness the defense proposes to use to place the alleged statements on the record is unavoidable. See Czubak v. State, 644 So. 2d 93, 95 (Fla. 2d DCA 1994) (“The trial judge . . . found not only that there were no corroborating circumstances showing the trustworthiness of the statements, to the contrary she found the circumstances such as to render the statements unreliable and unworthy of trust.”).

In Chambers, the reliability of the alleged third party’s out-of-court statements was bolstered by several factors. First, the statements were made to more than one witness. Second, the third party was seen with a gun shortly after the shooting. Third, there was evidence that the third party had previously owned a gun and then bought another one shortly after the crime occurred. 410 U.S. at 300. In this case, there is nothing other than Bearden’s self-serving statements to the detectives before his arrest.6 In his pretrial statement, Bearden admitted committing several felonies, but he carefully avoided admitting any direct involvement in Skipper’s murder. And the crimes to which Bearden admitted were crimes that he was unable to deny because of the number of witnesses who knew that he had participated in cleaning Skipper’s car and attempting to dispose of it. Under the circumstances, we cannot say that the trial court abused its discretion in concluding that Tyler’s testimony about Ray

6We recognize that the testimony of the State’s witnesses and Ray Allen Brown about the sequence of events was often inconsistent. And we acknowledge that J.T. Brown and John Kirchoff likely had a motive to protect Ray Allen Brown from prosecution. But inconsistencies in the evidence and the credibility of the witnesses were issues for the jury to weigh; they do not bear upon the question of whether Ray Allen Brown’s purported out-of-court confession bore sufficient indicia of reliability for admission under Chambers.

Allen’s purported statements failed to meet the test of reliability outlined in Chambers. It follows that the trial court did not err in excluding her testimony at Bearden’s trial.

IV. CONCLUSION

For the foregoing reasons, we affirm the judgment and sentences imposed on Bearden. Our affirmance is without prejudice for Bearden to raise his claims of ineffective assistance of counsel in a timely postconviction motion.

Affirmed.

VILLANTI, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge, Concurring.

I join in the court’s opinion but admit that I am troubled by Mr. Bearden’s conviction for second-degree murder. The evidence supporting that conviction is weak. Although I cannot say that the trial court committed reversible error by omitting the hearsay testimony of Angela Tyler concerning the alleged confession of Ray Allen Brown, if I had been the trial judge, I believe I would have admitted this testimony. I write to explain why I would have allowed the jury to decide the significance of this alleged confession.

The jury’s verdict in this case convicting Mr. Bearden not of robbery but of a grand theft of Mr. Skipper’s car is fully supported by the evidence. After William Brown killed Mr. Skipper in Mr. Skipper’s car, Mr. Bearden had possession of the car as a known stolen vehicle, and he destroyed evidence of the murder that had occurred in the car. Apparently, in a related criminal proceeding, Mr. Bearden was convicted as an accessory after the fact for this murder on the theory that he was an accessory to the first-degree murder committed by William Brown. The evidence in this record would support that conviction.

The State indicted Mr. Bearden for first-degree premeditated murder of Mr. Skipper. The State submitted the case to the jury on theories of both first-degree premeditated murder and first-degree felony murder. The jury convicted Mr. Bearden of second-degree murder.7 I question whether the evidence supported a conviction for this lesser offense but conclude that the evidence was sufficient to convict Mr. Bearden of first-degree felony murder.

A great majority of the testimony in this case is influenced by illegal drugs. The witnesses were either under the influence of drugs at the time of these events or involved in the sale of drugs. Credibility is a very complex matter in this case. Assuming that there were other people in the car at the time William Brown killed Mr. Skipper, several people in addition to Mr. Bearden had at least an equal motive and opportunity to participate in the murder.

7Because it would have little practical effect on Mr. Bearden’s sentences, I will not discuss at any length the oddity of a conviction as a principal to second-degree murder and a second conviction for accessory after the fact for a first-degree murder arising from a single homicide.

It seems likely from the evidence that Mr. Skipper stopped on the side of the road late on the evening of March 13, 2007, to pick up Mr. Bearden. Mr. Skipper might have known Mr. Bearden, but there is no evidence that the two men were established friends. The record leaves one only to speculate as to the reason that Mr. Skipper picked up Mr. Bearden on this night. Mr. Bearden claimed that the two men went briefly to Mr. Skipper’s house and then proceeded to the Browns’ house to purchase drugs.

After arriving at the Browns’ house, Mr. Skipper appears to have reentered his car where William Brown stabbed him several times. No one claims to have been an eyewitness to this event. There is no physical evidence that places Mr. Bearden or anyone other than William Brown in the car at the time of the murder. However, it is likely that some other person or persons were in the car at the time of the stabbing, and it is at least plausible that the additional occupants were principals in the offense and not merely occupants. Whether the evidence established beyond a reasonable doubt that Mr. Bearden was such a principal is a much closer question.

As our opinion reflects, the occupants of the Brown house, where drugs were being sold, claimed that Mr. Bearden, but not Ray Allen Brown, accompanied William Brown on the fatal trip in the car. Mr. Bearden claimed that although he was not in the car, he knew the Browns were taking Mr. Skipper for a ride to rob him and he approved of the plan so long as he got something out of the deal. It is a close question whether Mr. Bearden’s admission of this fact would be sufficient to convict him of first-degree felony murder. The State did not charge him with being a member of any conspiracy.

The primary testimony that would both place Mr. Bearden in the car at the time of the murder and suggest that he was a principal in that offense was the testimony of Maria and Robert Aguero. After the murder occurred and before the car was burned, Mr. Bearden and another man tried to sell the stolen car to members of the Aguero family. This family also appears to have ties to drug dealing. In the process of trying to sell the car to them, Mr. Bearden allegedly had private conversations in which he admitted that he had intended to steal Mr. Skipper’s money and credit cards and that he had “f**cked up” the victim. This hearsay testimony is hardly a full confession to any form of murder.

In this context, the evidence may have created an issue for the jury, but there was barely enough reliable evidence to establish that Mr. Bearden was a principal in the murder. It was possible that he was a drug addict who managed to place Mr. Skipper in a location where others killed him.

I provide this brief explanation because it seems important when deciding whether the hearsay confession of Ray Allen Brown to Angela Tyler was admissible. If admitted, this testimony would have been significant defensive evidence.

This was a televised trial. Angela Tyler’s delay in coming forward to testify against a member of the Brown family may be explained by entirely innocent reasons. Moreover, her ability to recall details of such a confession after only two years is not necessarily surprising. It is not every day that a person confesses to murder, and the recipient of the confession is likely to recall the incident in detail. The trial judge was in a position to evaluate Angela Tyler’s credibility, but I admit that on the basis of the cold

record, I would have allowed the jury to make the evaluation of her credibility given the weakness of the evidence against Mr. Bearden.

As for the need for corroboration under Chambers, I admit that what exactly needs to be corroborated is confusing to me. It is undisputed that Mr. Skipper was murdered shortly after being in a house with Ray Allen Brown. Ray Allen Brown certainly had the ability and even a motive to be precisely where his alleged confession to Angela Tyler placed him. The truth is that we have only a little more corroborating evidence to support the alleged confession of Mr. Bearden to the Agueros than the alleged confession of Ray Allen Brown to Ms. Tyler.

I cannot dissent in this case, but I would have greater confidence in the jury’s verdict if they had received the additional testimony.

 

Courtesy of David Edelstein

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

April 13, 2011

LUC PIERRE-CHARLES,

 

Appellant,

 

v.                                    Case No. 2D09-2263

 

STATE OF FLORIDA,

 

Appellee.

 

BY ORDER OF THE COURT:

Upon the court’s own motion, this court’s opinion dated February 11, 2011, is withdrawn. The attached opinion is substituted therefore.

No further motions for rehearing or clarification will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

JAMES BIRKHOLD, CLERK

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

LUC PIERRE-CHARLES, )

)

Appellant, )

)

v. ) Case No. 2D09-2263

)

STATE OF FLORIDA, )

)

Appellee. )

)

Opinion filed April 13, 2011.

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

James Marion Moorman, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.

BLACK, Judge.

Luc Pierre-Charles (the defendant) appeals his convictions and life sentences for two counts of first-degree murder. On July 28, 2006, Derek Pieper and Raymond Veluz were found dead, lying face down on an isolated road in Dade City, Florida. Both victims suffered multiple gunshot wounds to the backs of their heads.

Two years later, the State indicted the defendant for two counts of first-degree murder. After a jury trial, the defendant was convicted as charged and sentenced to life in prison. The defendant raises five issues on appeal, only one of which requires reversal. The defendant’s arguments regarding the trial court’s admission of a witness’ prior consistent statement, the admission of certain autopsy photographs, the denial of defendant’s motion for judgment of acquittal, and the trial court’s denial of access to a witness’ grand jury testimony are without merit. However, we find error in the trial court’s admission of a hearsay statement made by the defendant’s brother, and based on this error, we reverse and remand for a new trial.

I. Background Facts

Witnesses testified that, at around 5:30 a.m. on July 28, 2006, they heard a series of gunshots coming from Harris Hill Road, a dirt road near their Dade City homes. The bodies of the two victims were found on Harris Hill Road shortly thereafter. At trial, the State offered no physical evidence linking the defendant to the murders. Rather, the State built its case around the testimony of Angel Brooks and the defendant’s brother, Andre Pierre-Charles (who will hereinafter be referred to as “Andre”).

Ms. Brooks made five statements related to this case. On August 14, 2006, she made her first statement to a detective. She stated that she was with Andre on the night of the murders when he received a call from an unknown caller. In her statement at the sheriff’s office on August 23, 2006, Ms. Brooks did not mention a speakerphone at all. That same day, at the state attorney’s office, Ms. Brooks said she did not hear who was on the phone with Andre. Ms. Brooks first mentioned a

speakerphone in her January 2009 deposition. She said she heard the defendant’s voice on the speakerphone telling the victims to get down on their hands and knees and pray. Ms. Brooks testified that she could hear the victims saying, “Please don’t. Please don’t do this.” Ms. Brooks’ trial testimony was consistent with her deposition testimony.

The State also called Andre as a witness. Prior to Andre’s testimony, defense counsel requested a proffer of Andre’s anticipated testimony outside the presence of the jury. Counsel anticipated that the State was going to discuss an August 15, 2006, videotaped conversation between Andre and his father, which took place at the police station. Detectives called Andre to the police station to question him about the murders. Both his father and mother were present in the interrogation room during the questioning. The detective and Andre’s mother left the interrogation room, and the videotape showed that while Andre and his father were alone, Andre’s father questioned him about the murders and whether he knew who committed them. His father asked,

“Is it Luc?” Andre nodded his head up and down. Originally, the State argued that the videotape would serve to impeach Andre’s testimony because they expected Andre to deny nodding his head up and down in response to his father’s question. Defense counsel argued that Andre’s head nod was inadmissible hearsay because it was offered to prove the truth of the matter asserted: that the defendant killed the victims. The trial court agreed to a proffer of Andre’s testimony regarding the videotape and its contents. The court questioned Andre about the head nod:

COURT: Okay. Were you nodding your head, yes, in response to his question meaning—

A: No. If you look at the tape, I was nodding my head, doing hand gestures, stuff like that through really most of the whole video. That was, like, I’m tired of this; get me out of here. That wasn’t me saying, yes, my brother did it.

COURT: All right. So when your father asked you, was he involved, you nodded your head yes as in, yes, I want to leave instead of, yes, he was involved. That’s what you’re telling me?

A: No. I wasn’t saying that my brother did it. Okay. Throughout the whole video, they’re telling me they know I wasn’t there. So if they know I wasn’t there, how do I know what happened.

. . . .

COURT: All right. Did you tell your father, yes, when you’re asked, did Luc and Tyree did [sic] this.

A: I didn’t tell him that. I did not say that Luc and Tyree did it. How would I know if they did it or not?

The prosecutor questioned Andre further:

Q: Did your father ask you, “Is it Luc?” A: Yes.

Q: And you nodded your head affirmatively, saying yes, right?

A: Yes, but I wasn’t saying that Luc did it.

Q: I’m not asking you whether or not –

A: Okay. Yes. Yes.

At the conclusion of the proffer, the prosecutor and the judge discussed Andre’s testimony:

[PROSECUTOR]: But clearly he asked, “Is it Luc?” . . . and he nodded affirmatively.

COURT: Well, he said “Yes” now. So he’s no longer saying that that’s – he’s no longer denying that that’s what he said. He’s just saying that’s not what he meant. So it’s not impeachment. Do you agree?

[PROSECUTOR]: Well, I agree, though, Judge, as long as

when I ask him the questions, “Did you nod your head? It’s a yes-or-no answer. He says, “Yes I nodded my head in the affirmative.” You know, I’m not asking him for, “That’s not what I meant,” so on and so forth . . . .

Defense counsel maintained his position that the head nod was hearsay and that the State intended to use it to prove that the defendant committed the murders. Defense counsel argued that because Andre admitted to nodding his head, it came down to what he meant by that gesture, which was not proper impeachment. The court ruled that the State could ask Andre certain questions about the videotape. If Andre again admitted to nodding his head, the videotape could not be used to impeach him. If Andre denied nodding his head, then the State could impeach him with the videotape.

Once the jury returned, the prosecutor questioned Andre:

Q: Mr. Charles, you were asked by your father, “Who killed them, Andre? Luc?” And your mother, did she make a statement, “I don’t believe that”?

A: Yes.

Q: And right after that – would you agree with me that you

had your head on the table, down like this (indicating), in this manner, during the portion of that video?

A: Yes.

Q: And right after that, did you lift your head and start shaking your head up and down affirmatively?

A: Yes.

. . . .

Q: Later on in the video, did your father ask you, “Is it Luc?” A: Yes.

Q: And you were leaning – you were in a chair leaning up against the wall, right? And you nodded your head up and down?

A: Yes, but I told you –

Q: Is that –

A: Yes.

Q: That’s a yes?

A: Yes. Yes. Yes. Yes.

. . . .

Q: So yes to, “Is it Luc?” You said, “Yes”?

[DEFENSE COUNSEL]: Objection.

A: No. No. No. No.

. . . .

[DEFENSE COUNSEL]: The issue is whether he’s shaking his head like this (demonstrating), and he said yes. He didn’t make any statements.

[WITNESS]: I did not say “Yes.” You asked me did I nod my head, and I said yes. I did not tell my dad, “Yes, Luc did it.”

COURT: All right.

[PROSECUTOR]: Judge, I am trying to clarify with him. I asked him, “Did your dad ask you, ‘Is it Luc?’ Is that a yes?” I’m not saying that he said “Yes.”

. . . .

[PROSECUTOR]: All right. So, as to that question, your dad asked you, “Is it Luc?” Right?

A: Yes.

Q: And you nodded your head up and down?

A: Yes.

. . . .

Q: Are you denying that you shook your head up and down?

A: No.

Q: So you’re denying that he asked you that question, but

you’re admitting that on the second question that your father asked you, you nodded your head affirmatively?

A: Yes. I nodded my head, but I also nodded my head this way, too. (Demonstrating)

The State never introduced the videotape, and defense counsel chose not to cross-examine the witness.

During closing arguments, the State attempted to discuss Andre’s head nod as substantive evidence. The State argued, “[T]here was testimony as to a videotape that was running at the sheriff’s office, when he was asked . . . .” Defense counsel objected and argued that Andre’s head nod could not be used as substantive evidence because it was hearsay. The State argued that because Andre admitted to shaking his head, the nod was not impeachment evidence, and therefore, could be argued as substantive evidence. The trial court essentially agreed with the defense objection and expressed concern that hearsay testimony had already been admitted. The State then continued its closing argument without arguing Andre’s head nod any further.

The jury retired to deliberate the verdict, and they submitted three questions to the court: (1) “Andre Charles, his answer to, ‘Did Luc do it?’ “; (2) “Andre’s

whole testimony printed out”; and (3) “Andre, have his testimony read to the jury.” Defense counsel argued that the testimony should not be read back to the jury, but if it was, he moved that the court should also give the jury a curative instruction regarding hearsay evidence. The court denied that motion and read back a portion of Andre’s testimony. The jury returned a guilty verdict.

II. Analysis

Section 90.801(1)(c), Florida Statutes (2009), defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A “statement” for purposes of hearsay includes “[n]onverbal conduct of a person if it is intended by the person as an assertion.” § 90.801(1)(a)(2). “When an individual who is asked a question nods his or her head up and down to indicate an affirmative response, that conduct is intended to communicate a thought and is included within the definition of hearsay.” Charles W. Ehrhardt, Florida Evidence § 801.2, at 772 (2009 ed.). “Hearsay includes an out-of-court statement of a witness who testifies at trial, as well as an out-of­court statement by someone who is not a witness on the stand testifying to the statement.” Carter v. State, 951 So. 2d 939, 944 (Fla. 4th DCA 2007) (citing Ehrhardt, Florida Evidence § 801.2 (2003 ed.)). “Merely repeating a statement in the courtroom does not convert a hearsay statement into non-hearsay.” Ehrhardt, Florida Evidence § 801.2, at 769-70 (2009 ed.). “The necessary reliability of the statement is lacking because the jury was not present to observe the demeanor of the witness when the statement was originally made and there was no opportunity for cross-examination at that time.” Id.

In this case, Andre’s head nod was an out-of-court statement introduced by the State as an affirmative response to his father’s question, “Is it Luc?” Andre’s head nod constitutes hearsay in the form of a nonverbal assertion, and therefore, the trial court erred in admitting the statement. At one point, the State argued that the head nod served only as grounds for impeachment. However, Andre admitted nodding his head, thereby obviating the need for impeachment. Prior inconsistent statements offered to impeach the credibility of a witness are not hearsay because they are not offered to prove the truth of the prior statement but rather to show why the witness is not trustworthy. Ellis v. State, 622 So. 2d 991, 996 (Fla. 1993). Moreover, Andre’s head nod was not introduced to simply attack his credibility; the State wanted the jury to believe in the truthfulness of Andre’s prior out-of-court statement. This purpose became apparent in closing arguments when the State referred to Andre’s videotaped discussion with his father and used the head nod as substantive evidence of defendant’s guilt. “Accordingly, the State was using the prior statement almost entirely for its substantive effect on the fact finder. At least to this extent, the hearsay rule must remain applicable.” Id.

A trial court has discretion concerning the admissibility of evidence; however, the boundaries of this discretion are limited by the rules of evidence. Hinojosa v. State, 857 So. 2d 308, 309 (Fla. 2d DCA 2003) (citing Welty v. State, 402 So. 2d 1159, 1162-63 (Fla. 1981)). Here, the trial court erred when it admitted Andre’s hearsay statement. See § 90.802 (“hearsay evidence is inadmissible”). In addition, “there is a reasonable possibility that the error affected the verdict.” Knowles v. State, 848 So. 2d 1055, 1059 (Fla. 2003) (quoting State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986)).

The burden to show that error was harmless remains with the State. DiGuilio, 491 So. 2d at 1139. “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id.

In this case, we cannot say beyond a reasonable doubt that the error did not affect the verdict. See id. All three inquiries from the jury pertained to Andre’s testimony, specifically Andre’s response to his father’s question, “Is it Luc?” The judge’s rereading of Andre’s testimony magnified the error. “Whenever improper evidence becomes so prominent a feature of the trial, a court cannot find that the error was harmless beyond a reasonable doubt.” Ellis, 622 So. 2d at 998. Because the trial court erred in admitting the hearsay statement and because the State failed to show that the error was harmless, we see no alternative but to reverse for a new trial.

Reversed and remanded.

ALTENBERND and KELLY, JJ., Concur.

 

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JUAN DE LA FUENTE,

 

Appellant,

 

v.                          Case No. 2D09-2394

 

STATE OF FLORIDA,

 

Appellee.

 

Opinion filed April 13, 2011.

Appeal from the Circuit Court for Hendry County; James D. Sloan, Judge.

James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Elba C. Martin?

Schomaker, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

Juan De la Fuente appeals his conviction and sentence for felony battery. See § 784.041, Fla. Stat. (2007). We affirm, except for certain costs items, the judgment and sentence. We write to address costs challenged by Mr. De la Fuente. He

filed a timely motion to correct sentencing error. See Fla. R. Crim. P. 3.800(b)(2). Mr. De la Fuente alleged that the following statutory authorities listed in the trial court’s order imposing costs were outdated:

Section 960.20, Florida Statutes, Crimes Compensation Trust Fund;

Section 943.25(3), Florida Statutes, Criminal Justice Trust Fund;

Section 943.25(13), Florida Statutes, Criminal Justice Education by Municipalities and Counties;

Section 27.3455, Florida Statutes, Local Government Criminal Justice Trust Fund;

Section 939.01, Florida Statutes, Prosecution/Investigative Costs; and

Section 318.18(13)(a), Florida Statutes, Court Facilities.

He argues that because the costs were imposed without proper statutory authority, they must be stricken. See Perdue v. State, 17 So. 3d 1283 (Fla. 2d DCA 2009). We agree. The correct statutory authorities are as follows:

Section 938.03, Florida Statutes (2007), Crimes Compensation Trust Fund;

Section 938.01(1), Additional Court Cost Clearing Trust Fund;

Section 938.15, Criminal Justice Education for Local Government;

Section 938.05(1)(a), Additional Court Costs for Felonies;

Section 938.27(1), Judgment for Costs on Conviction; (includes prosecution/investigative costs); and

Section 939.185(1)(a), Florida Statutes (2007), Assessment of Additional Court Costs and Surcharges.

The statutory authorities for the Domestic Violence Trust Fund and Rape Crisis Program Trust Fund surcharges, listed on the costs order as “Other” and citing no statutes, are sections 938.08 and 938.085, respectively.

The trial court issued an order granting Mr. De la Fuente’s motion and modified sentencing to cite the correct statutory authority, but not within sixty days as rule 3.800(b)(2) requires. Because the order was not entered timely, it is a nullity and the motion is deemed denied. See Fla. R. Crim. P. 3.800(b)(2); Whitmore v. State, 910 So. 2d 308, 308 (Fla. 2d DCA 2005) (citing O’Neill v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)). However, Mr. De la Fuente properly preserved the issue for our review. See McGuire v. State, 779 So. 2d 571, 573 (Fla. 2d DCA 2001) (explaining that rule 3.800(b)(2) provision deeming motion denied if trial judge does not rule within sixty days allows defendant to preserve alleged sentencing error for appellate review). We

reverse and remand for entry of a corrected costs order.

Affirmed in part, reversed in part, and remanded.

CRENSHAW and MORRIS, JJ., Concur.

 

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

L.A.G.,

 

Appellant,

 

v.                           Case No. 2D09-5873

 

STATE OF FLORIDA,

 

Appellee.

 

Opinion filed April 13, 2011.

Appeal from the Circuit Court for Pasco County; Lynn Tepper, Judge.

James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

L.A.G. pleaded no contest to selling marijuana within 1000 feet of a school, possession of marijuana with intent to sell, possession of oxycodone, and possession of drug paraphernalia. The Department of Juvenile Justice (DJJ)

recommended a probationary sentence. The juvenile court committed L.A.G. to a moderate risk program instead of placing her on probation. On appeal, L.A.G. challenges the disposition but not the adjudication of delinquency. The State properly concedes error. Because the juvenile court departed upward from the DJJ’s recommended disposition without providing adequate reasons for the restrictiveness level imposed, we reverse the disposition. See E.A.R. v. State, 4 So. 3d 614 (Fla. 2009); N.P. v. State, 18 So. 3d 735 (Fla. 2d DCA 2009). We affirm the adjudication of delinquency.

The reasons offered by the juvenile court for departing upward from the DJJ’s recommendation focused on the nature of the charges against L.A.G. As this court has previously explained, “the ‘nature of the charge’ is not a sufficient reason to depart from the D.J.J.’s recommendation.” A.J.V. v. State, 842 So. 2d 1027, 1029 (Fla. 2d DCA 2003) (citing K.M.T. v. State, 695 So. 2d 1309, 1310 (Fla. 2d DCA 1997)). On remand, the trial court shall not depart from the DJJ’s recommendation unless it can “logically and persuasively explain why, in light of [the] differing characteristics [of the various restrictiveness levels], one level is better suited to serving both the rehabilitative needs of [L.A.G.]—in the least restrictive setting—and maintaining the ability of the State to protect the public from further acts of delinquency.” E.A.R., 4 So. 3d at 638.

It is not clear from the record whether this error can be corrected on remand or whether the disposition has been fully served. On remand, L.A.G. is entitled to request a new disposition hearing if such a hearing will benefit this juvenile.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, DAVIS, and WALLACE, JJ., Concur.

 

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

FIDENSIO GALLEGOS,

 

Appellant,

 

v.                                 Case Nos. 2D09-4699 2D09-4704

STATE OF FLORIDA,

CONSOLIDATED

Appellee.

 

Opinion filed April 13, 2011.

Appeals from the Circuit Court for Hillsborough County; Manuel A. Lopez, Judge.

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

Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Chief Judge.

We affirm Mr. Gallegos’ judgments and sentences without comment. However, we write to direct the trial court on remand to strike the postsentence order that it entered without jurisdiction.

On August 5, 2010, while this appeal was pending, Mr. Gallegos filed in the trial court a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court must rule on such a motion within sixty days of filing or it is deemed denied. See Fla. R. Crim. P. 3.800(b)(1)(B). However, it did not issue an order on the motion until January 20, 2011, long after the sixty days had passed. That order found that Mr. Gallegos’ claims had merit and gave the State twenty days to choose between two alternative types of relief.

“When a trial court enters an order on a rule 3.800(b)(2) motion outside of the time permitted for ruling on such a motion, the order is deemed a nullity and must be stricken.” Miran v. State, 46 So. 3d 186, 188 (Fla. 2d DCA 2010); see also Mapp v. State, 18 So. 3d 33, 37 (Fla. 2d DCA 2009) (striking an out-of-time order granting a rule 3.800(b) motion); Jackson v. State, 950 So. 2d 1267, 1267 (Fla. 2d DCA 2007) (holding that an order rendered more than sixty days after the filing of a rule 3.800(b)(2) motion was a nullity). Therefore, while we affirm the judgments and sentences, we must remand to the trial court to strike the January 20, 2011, order and any subsequent orders entered on the rule 3.800(b)(2) motion.

Judgments and sentences affirmed; remanded with instructions.

VILLANTI and LaROSE, JJ., Concur.

 

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

DORIAN KIMBERLY MATHEWS,

 

Appellant,

 

v.                                            Case No. 2D10-709

 

STATE OF FLORIDA,

 

Appellee.

 

Opinion filed April 13, 2011.

Appeal from the Circuit Court for Hillsborough County; Daniel Lee Perry, Judge.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Chief Judge.

Dorian Kimberly Mathews appeals orders finding her in violation of the terms of her probation, revoking that probation, and imposing a prison sentence. However, Ms. Mathews’ probation may have automatically terminated before the alleged violations because she asserts that she fully complied with a special condition

providing for early termination. If she complied, the trial court was without jurisdiction to revoke probation or impose a prison sentence. Accordingly, we reverse the orders on appeal and remand for a new violation of probation hearing.

Ms. Mathews began her probationary term after pleading guilty to three counts of possession of controlled substances. The next month her probation officer filed an affidavit alleging she violated the terms of her probation. At a hearing on that violation of probation, Ms. Mathews’ counsel informed the court that she planned to travel to New Jersey so her mother could take responsibility for her. The trial court reinstated all the terms of her probation but added one condition. It orally pronounced that “[Ms. Mathews] can be released to her sister on Saturday morning at seven a.m. directly to the airport, get on that plane. When you get [to New Jersey], call your probation officer and tell them that you’re there and your probation can terminate.” The trial court memorialized this added condition in a written order that stated, “Once defendant gets to New Jersey she is to call her Probation Officer. Once verified her Probation can terminate.”

Three months later, Ms. Mathews’ probation officer submitted an affidavit of violation of probation alleging that Ms. Mathews had violated (1) condition six by associating with persons engaged in criminal activities, (2) condition seven by possessing Xanax without a prescription, and (3) condition nine by failing to relocate permanently to New Jersey and failing to comply with the instructions of her probation officer. The allegation regarding condition nine asserted that Ms. Mathews informed her probation officer that she never planned on staying in New Jersey and that she refused to comply with the probation officer’s request that she obtain a New Jersey identification

card.

At the hearing on this affidavit of violation, Ms. Mathews admitted violating all three conditions. She also explained, through counsel, that she had traveled to New Jersey and called her probation officer. She claimed that she was unable to procure the identification card because the necessary sources of identification were in a storage unit in Florida. The State offered to have the probation officer testify, but the trial court

declined. In fact, the court heard no testimony at this hearing. Instead, the court found Ms. Mathews guilty of violating only condition seven by possessing Xanax without a prescription and imposed an eighteen-month prison sentence.

On appeal, Ms. Mathews argues that the trial court lacked jurisdiction to revoke her probation because it had terminated when she called her probation officer from New Jersey. This issue is a question of fundamental error and may be raised for the first time on appeal. See Wright v. State, 47 So. 3d 972, 973 n.1 (Fla. 4th DCA 2010) (addressing an argument that the trial court lacked jurisdiction when the alleged violation occurred after the probationary term ended). Ms. Mathews did not waive the argument by admitting to violating her probation. See id. at 973.

The State answers that Ms. Mathews’ probation did not terminate because she did not comply with her probation officer’s subsequent instructions to obtain a New Jersey identification card and transmit that documentation to him. The State also argues that the trial court intended that Ms. Mathews permanently relocate to New Jersey and not return to Florida. Notably, the State does not argue that Ms. Mathews did not travel to New Jersey or that she did not call her probation officer when she arrived.

The condition’s plain language required Ms. Mathews to do two things— travel to New Jersey and call the probation officer from there. If Ms. Mathews’ statements are true, then she complied fully with both of these court-imposed requirements and her probation instantly terminated upon their completion. See Manning v. State, 890 So. 2d 531 (Fla. 1st DCA 2005) (holding that once defendant had fulfilled an orally pronounced special condition that allowed his probation to automatically terminate, the trial court could not find him guilty of a violation that occurred subsequent to the date he complied with the special condition); Gipson v. State, 997 So. 2d 1276 (Fla. 4th DCA 2009) (holding that the defendant’s probation automatically terminated after five years when the trial judge, when pronouncing sentence, said “probation will early terminate at the end of five years”). The trial court is divested of jurisdiction over a probationer once the term of probation expires. See Francois v. State, 695 So. 2d 695, 697 (Fla. 1997). If Ms. Mathews called from New Jersey, her probation terminated at that time and she had no legal responsibility to comply with her probation officer’s subsequent demands regarding the New Jersey identification card.

Consequently, we reverse the orders on appeal and remand for a new violation of probation hearing. On remand, the trial court shall first take testimony to determine whether Ms. Mathews traveled to New Jersey and called her probation officer from there. If the trial court determines that she complied with both those requirements, it shall dismiss the affidavit of violation of probation for lack of jurisdiction.

Reversed and remanded with instructions.

VILLANTI and MORRIS, JJ., Concur.

 

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MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

ANTHONY D’ARCANGELO,

 

Petitioner,

 

v.                                                 Case No. 2D10-1375

 

STATE OF FLORIDA,

 

Respondent.

 

Opinion filed April 13, 2011.

Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; J. Rogers Padgett, Judge.

Michael J. Minerva and Melissa Montle of the Innocence Project of Florida, Inc., Tallahassee, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.

NORTHCUTT, Judge.

In this unusual case, Anthony D’Arcangelo seeks certiorari review of the circuit court’s order declining to determine his competency and to stay proceedings on his motion for postconviction relief. We grant the petition.

In 1982 a jury convicted D’Arcangelo of two counts of first-degree murder. The State endeavored to have him sentenced to death, but the penalty-phase jurors split evenly on the question. The trial court concluded that the appropriate punishment was life imprisonment, and it imposed that sentence.

At D’Arcangelo’s guilt-phase trial, the State presented testimony from an FBI agent that he performed a comparative bullet lead analysis (CBLA), comparing bullets recovered from the crime scene with unspent bullets discovered at D’Arcangelo’s residence. The agent found an association between the bullets from the two locations. He testified that “the bullets came from the same box of ammunition or another box of ammunition having the same composition.”

Many years later, in August 2008, an FBI laboratory director sent a letter to the Hillsborough County State Attorney’s office advising that the agent’s expert trial testimony overstated the significance of his conclusions. Based on this newly discovered information, D’Arcangelo filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Some months later, he obtained legal counsel, who filed an amended motion.

D’Arcangelo claimed that the CBLA testimony was the only evidence that physically linked him to the crime and that, at the time of trial, neither he nor his attorney could have discovered that this evidence was unreliable. He asserted that if the discredited evidence had not been admitted, he likely would have been acquitted. D’Arcangelo asked the postconviction court to vacate his conviction and sentence and to grant him a new trial. Cf. Murphy v. State, 24 So. 3d 1220 (Fla. 2d DCA 2009) (holding allegations in the prisoner’s rule 3.850 motion that he recently discovered the

CBLA evidence presented at his 1995 trial had been discredited and that he would probably have been acquitted if the evidence had not been introduced could support relief under rule 3.850(b)(1)); Smith v. State, 23 So. 3d 1277 (Fla. 2d DCA 2010) (same).

In late 2009 D’Arcangelo’s attorney began to suspect that he was incompetent, and she hired an expert to examine him. The expert confirmed counsel’s suspicions. Counsel then filed a simple motion seeking a stay of the rule 3.850 proceedings. The motion asserted that there was a substantial issue regarding D’Arcangelo’s competence and that due process required that he be competent during the postconviction process. The court denied the motion, relying on Carter v. State, 706 So. 2d 873 (Fla. 1997), for the proposition that in postconviction proceedings a defendant’s competence is necessary only when a factual matter is at issue or when the development of such an issue would require the defendant’s input. In its ruling the court limited its focus to the question raised by D’Arcangelo’s rule 3.850 motion, i.e., whether the newly-discovered evidence discrediting the CBLA analysis would have resulted in a different outcome at trial, and it determined that the motion presented a legal issue, not a factual one.

Counsel thereafter filed another motion seeking the same relief, but this time describing the quandary that D’Arcangelo could face. The motion recounted that case law bearing on whether D’Arcangelo could be exposed to the death penalty after a retrial was not consistent. Compare Bullington v. Missouri, 451 U.S. 430 (1981) (holding that a jury’s verdict of life imprisonment barred the possibility of the death penalty at a retrial); Arizona v. Rumsey, 467 U.S. 203 (1984) (barring death penalty on

retrial when the trial judge acquitted the defendant), with Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) (noting that a trial court’s dismissal of jurors unable to reach a unanimous verdict and its entry of a life sentence did not bar the death penalty on retrial). Thus, the motion argued, D’Arcangelo had a factual decision to make: Should he proceed with his rule 3.850 motion and potentially expose himself to the death penalty? Or should he play it safe, withdraw his challenge concerning the CBLA testing, and spend the rest of his life in prison? The court again denied the motion.

D’Arcangelo filed a timely petition for a writ of certiorari seeking to quash the postconviction court’s order. See State v. Ayala, 604 So. 2d 1275 (Fla. 4th DCA 1992). We have stayed the proceedings on his motion for postconviction relief pending the disposition of his certiorari petition.

To assist us in determining whether to exercise our certiorari jurisdiction, we directed the State to file an “unequivocal response” to the question of whether it would be barred from seeking the death penalty if D’Arcangelo were to be granted a new trial. The State advised that “[b]ased upon the record, or lack, thereof, in this case, it is submitted that the State can go forward and seek the penalty on a retrial of this case.” Thus, D’Arcangelo’s dilemma is squarely before us.

In denying the motion for determination of competency and for a stay of the postconviction proceedings, the circuit court relied on Carter, in which the supreme court established procedures addressing the incompetence of death-sentenced defendants in postconviction cases. See Carter, 706 So. 2d at 876. Those procedures are now incorporated in Florida Rule of Criminal Procedure 3.851(g). It provides that a “death-sentenced prisoner pursuing collateral relief under this rule who is found by the

court to be mentally incompetent shall not be proceeded against if there are factual matters at issue, the development or resolution of which require the prisoner’s input.” Fla. R. Crim. P. 3.851(g)(1). A competency hearing is required if “there are reasonable grounds to believe that a death-sentenced prisoner is incompetent to proceed and that factual matters are at issue.” Fla. R. Crim. P. 3.851(g)(3).

Carter is, indeed, instructive. But it does not directly control this case. Carter applies to incompetent death-sentenced prisoners only, as does rule 3.851. And as the Carter court noted, its purpose was to further society’s interest in the proper imposition of the death penalty while insuring a proper and timely resolution of postconviction proceedings. 706 So. 2d at 877. Rule 3.850, applicable in postconviction proceedings by prisoners who, like D’Arcangelo, are not sentenced to death, contains no incompetency procedures comparable to those set forth in rule 3.851.

Even so, Florida jurisprudence has long held that every individual has a natural right to due process, which embodies a fundamental conception of fairness. See Jones v. State, 740 So. 2d 520, 523 (Fla. 1999). In Luckey v. State, 979 So. 2d 353 (Fla. 5th DCA 2008), a case involving a prisoner not sentenced to death, the postconviction court denied a rule 3.850 claim even though the prisoner exhibited signs of incompetence at the evidentiary hearing on his claim. The Fifth District reversed the denial of the claim, noting that although Carter was limited to death-sentenced defendants, basic due process considerations such as notice and an opportunity to be

heard required a postconviction court to address a prisoner’s mental competence before proceeding with an evidentiary hearing. Id. at 356.

Luckey was consistent with Carter in one respect that is not as apparent in D’Arcangelo’s case: Luckey involved an evidentiary hearing on the factual issue of whether Luckey’s trial counsel had been ineffective by allegedly failing to warn him that he faced a term of life imprisonment as a prison releasee reoffender if he rejected the State’s fifteen-year plea offer. In other words, Luckey fell neatly on the “factual issue” side of the factual-legal dichotomy drawn by the Carter court when it extended to death-sentenced postconviction petitioners the right to be competent only in proceedings involving factual issues.

D’Arcangelo’s counsel maintains that the decision whether to further pursue his rule 3.850 petition and possibly expose himself to the death penalty is a factual issue for purposes of Carter. It is tempting to agree—the question certainly does not present a legal issue to be decided by the postconviction court. But it is apparent that when outlining the right to be competent in capital postconviction proceedings, the Carter court had in mind factual matters “at issue,” i.e., fact issues to be determined by the postconviction court based on evidentiary presentations.1 D’Arcangelo’s issue cannot be resolved by the court or by his attorney. The decision whether to go forward in his quest for postconviction relief must be his alone.

But even if D’Arcangelo’s dilemma does not fit squarely within the fact-at­issue limitation, there is reason to believe that the limitation does not, or should not, apply to his case. As mentioned, Carter was premised in part on the court’s goal of “furthering society’s interest in the proper imposition of the death sentence while at the

1Arguably, the question of whether D’Arcangelo’s trial would have produced a different result if the CBLA evidence had not been admitted comes closer to the kind of factual issue contemplated in Carter.

same time promoting the timely commencement and resolution of postconviction proceedings.” Carter, 706 So. 2d at 877. Here, society’s interest in carrying out the prisoner’s sentence is not a factor; D’Arcangelo was sentenced to life imprisonment, he has already begun serving that sentence, and he would continue serving that sentence during any delay in his postconviction proceeding occasioned by a determination that he is incompetent.

For that reason, among others, it is unclear whether the Carter court would find that D’Arcangelo has the right to be competent at this postconviction stage. The court did not directly address this issue in the context of a noncapital case, but we note that the Carter opinion cited favorably to State v. Debra A.E., 523 N.W. 2d 727 (Wis. 1994), a case that was similar to D’Arcangelo’s in that significant respect. Carter, 706 So. 2d at 876. In Debra A.E., counsel for a noncapital postconviction relief petitioner requested a competency determination because he feared that his client was not competent to decide whether to proceed with her petition and possibly subject herself to a harsher, albeit noncapital, penalty. The Supreme Court of Wisconsin held that the petitioner was entitled to be competent in order to make that decision.

Competency is a contextualized concept; the meaning of competency in the context of legal proceedings changes according to the purpose for which the competency determination is made. Whether a person is competent depends on the mental capacity that the task at issue requires. One task required of defendants during

postconviction relief is to make the decision to proceed with or forego relief.

523 N.W. 2d at 732 (footnotes omitted). The court concluded that a defendant is incompetent to pursue postconviction relief “when he or she is unable to assist counsel

or to make decisions committed by law to the defendant with a reasonable degree of rational understanding.” Id. (footnote omitted).

We do not suggest that the Carter court necessarily would recognize a right of competency for any postconviction petitioner who might face a harsher penalty after a retrial. But the very existence of the Carter decision is testament to the court’s recognition that “death is different.” Crump v. State, 654 So. 2d 545, 547 (Fla. 1995) (citing State v. Dixon, 283 So. 2d 1, 17 (Fla. 1973)). Unlike the case of a capital defendant, who has nothing to lose by pursuing postconviction relief, a life-imprisoned defendant who might face the death penalty after a retrial risks his life by going forward. This would not be merely a harsher punishment; it would be the harshest, irremediable penalty that our society can exact.

For the reasons described, we conclude that notions of due process and basic fairness—essential requirements of law—require that D’Arcangelo be competent when deciding whether to proceed on a course that might eventually cause him to be put to death. Therefore, we grant D’Arcangelo’s petition and quash the order denying his motion for a determination of his competency and a stay of the rule 3.850 proceedings pending that determination or his restoration to competency.

Petition granted.

DAVIS and SILBERMAN, JJ., Concur.

 

Courtesy of David Edelstein

Third District Court of Appeal

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

Opinion filed April 13, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D08-198

Lower Tribunal No. 07-9400B

Jerry Charles,

Appellant/Cross-Appellee,

vs.

The State of Florida,

Appellee/Cross-Appellant.

An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,

Judge.

Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender (Tampa), for appellant/cross-appellee.

Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee/cross-appellant.

Before WELLS, SHEPHERD, and SUAREZ, JJ. SHEPHERD, J.

Appellant, Jerry Charles, appeals the judgment and sentence imposed for attempted trafficking in cocaine, § 893.135(1)(b)1, Fla. Stat. (2007); § 777.04(1), Fla. Stat. (2007), and conspiracy to traffic in cocaine, § 893.135(5), Fla. Stat. (2007); § 777.011, Fla. Stat. (2007).1 We find no merit to Charles’ multiple challenges to his conviction. However, we reverse the increased sentence imposed on Charles at a sua sponte re-sentencing hearing, commenced by the trial judge on the ground the increased sentence violates the double jeopardy clause of article I, section 9, of the Florida Constitution. A brief recitation of the facts of the case is necessary to explain our decision.

On January 3, 2008, the trial judge orally pronounced a sentence on Charles of 110.55 months (9.2 years), including a three-year minimum mandatory term as required by statute, consistent with the lowest guidelines sentence appearing on the sentencing guidelines score sheet. See § 893.135(1)(b)1.a, Fla. Stat. (2007). However, the court wrote on the score sheet “[Defendant] found guilty at trial. Court sentences [Defendant] to 10y sp w/3y mm & $50,000 [mandatory] fine” (emphasis added).

Five days later, on January 8, 2008, the trial court sua sponte reconvened the sentencing hearing on the apparent belief he had misspoke. The court stated:

At one point I signed the paper that said 10 years in state

prison. And at another point I read off of the guidelines 115 [sic]

1 The crime date was March 14, 2007.

something months, and I know the agreement was 10 years in state prison. So I have also made a defect in that regard.

So, I believe I need to bring Mr. Charles here and repronounce sentence.

The court then pronounced a sentence of ten years in state prison with a three-year minimum mandatory term, and also added the statutorily mandated fine to the sentence. In so doing, the trial court erred.

It appears from the transcript of the January 8th resentencing hearing, both defense counsel and the trial court believed the court was engaged in the performance of a ministerial act—the rectification of a “scribbler’s error”—when it re-pronounced the increased prison sentence and fine. The court was mistaken.

By “correcting” the January 3rd sentence, the trial court increased the original sentence from 9.2 years to ten years, and imposed a fine. Case law is clear that a fine is as much a part of a sentence as is incarceration. See Morganti v. State, 573 So. 2d 820, 821 (Fla. 1991) (stating that a lawful sentence can include several penalties, such as incarceration, probation, and a fine); Jones v. State, 590 So. 2d 1061, 1062 (Fla. 4th DCA 1991) (stating that restitution is a part of a sentence). “Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003). Although the rule may seem to reduce sentencing to “a game in which a wrong move by a judge [can] mean[] immunity for the prisoner,” id. at 1269 (Pariente, J.,

concurring) (quoting United States v. DiFrancesco, 449 U.S. 117, 135 (1980)), our high court has so ruled, expressly admonishing the State, in these circumstances, to pay “close attention to ensure that the oral pronouncement contains no ‘misstatements.’” Ashley, 850 So. 2d at 1270 (Pariente, J., concurring).

Finally, we note the rule applies even if, as here, the original sentence was illegal or otherwise erroneous. See Gardener v. State, 30 So. 3d 629, 632 (Fla. 2d DCA 2010) (“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. This is true 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.”) (internal citation omitted); Figueroa v. State, 3 So. 3d 428, 429 (Fla. 2d DCA 2009) (reversing a minimum mandatory sentence imposed during a proceeding held one day after the initial sentencing); Shepard v. State, 940 So. 2d 545, 548 (Fla. 5th DCA 2006) (reversing a sentence imposed after the defendant was called back fifty minutes after the proceeding had ended).

For these reasons, we reverse the sentence and direct the trial court to reinstate the 110.55-month prison sentence, with a three-year minimum mandatory, and credit for time served. The trial court may not now impose a fine. The

defendant need not be present for re-sentencing. See Butler v. State, 807 So. 2d 88, 89 (Fla. 3d DCA 2001); Morales v. State, 795 So. 2d 231 (Fla. 3d DCA 2001).

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

 

Courtesy of David Edelstein

Third District Court of Appeal

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

Opinion filed April 13, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-35

Lower Tribunal No. 04-8753

Angel Roberto Gonzalez,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge.

Angel Roberto Gonzalez, in proper person.

Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.

SUAREZ, J.

Angel Roberto Gonzalez appeals from the trial court’s second denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. This denial arises out of an evidentiary hearing ordered by this

Court after Gonzalez appealed from the first summary denial of his post-conviction motion, but that hearing and the order that followed failed to specifically address issues that this Court deemed significant enough to warrant an evidentiary hearing. Gonzalez v. State, 13 So. 3d 1114, 1115 (Fla. 3d DCA 2009). As such, we must reverse and remand for the trial court to make those specific findings.

Gonzalez first argues that the trial court abused its discretion by not appointing counsel to represent him at the evidentiary hearing we ordered in Gonzalez. Gonzalez filed a motion for appointment of counsel in order to assist him at the evidentiary hearing. The trial court, however, failed to rule on Gonzalez’s motion for appointment of counsel. The Florida Supreme Court, in Graham v. State, 372 So. 2d 1363 (Fla. 1979), explains the factors that a trial court must consider when exercising discretion to appoint post-conviction counsel.1 The State’s suggestion of harmless error relies on cases where the trial court determined that the issues did not warrant appointment of counsel. Those cases, however, are those in which the trial court actually ruled on the motion. Here, the

1 The Graham Court set out four factors to be considered by the trial judge in deciding whether to appoint counsel in collateral proceedings for post-conviction relief. “The adversary nature of the proceeding, its complexity, the need for an evidentiary hearing, or the need for substantial legal research are all important elements which may require the appointment of counsel.” 372 So. 2d at 1366. The determination that an evidentiary hearing is necessary in itself implies that three of the four elements are involved. Evidentiary hearings are adversarial in nature, and the rules of evidence and procedure are mystifyingly complex to all but the most sophisticated non-lawyers.

record does not show that the trial court actually addressed the motion and applied the Graham analysis to the defendant’s motion for appointment of counsel. This is important. The significance of our first remand for evidentiary hearing was based on the defendant’s claim that his trial counsel was ineffective because he failed to argue on motion for judgment of acquittal that Gonzalez was not armed when he committed the burglary. Any doubt about the need for appointed counsel to address this substantive claim should be resolved in the defendant’s favor. See Willliams v. State, 472 So. 2d 738, 740 (Fla. 1985). Therefore, we reverse and remand this issue to the trial court with directions to address and consider the substance of Gonzalez’s motion for appointment of counsel for the post-conviction proceedings we ordered in Gonzalez. See also Martinez v. State, 24 So. 3d 733 (Fla. 3d DCA 2009) (finding remand necessary because the trial court failed to consider defendant’s request for appointment of counsel at post-conviction hearing using the factors outlined in Graham).

Gonzalez next argues that the trial court erred by failing to address his post-conviction claim that his trial counsel was ineffective for failing to move for a judgment of acquittal on the ground that the evidence was legally insufficient to support the proposition that the defendant was armed during the burglary. In this Court’s Gonzalez opinion, we remanded for a hearing to address the substance of Gonzalez’s argument that his trial counsel’s motion for judgment of acquittal was

boilerplate. At the evidentiary hearing, the trial court did not reach the substance of Gonzalez’s post-conviction issue, and the point of this Court’s opinion that it should have addressed the substance of this claim:

The State’s trial court response cited the transcript pages containing the motion for judgment of acquittal, but the State did not attach it to the trial court response. For present purposes, we must accept the defendant’s characterization that counsel failed to address with specificity the claimed deficiency in proof of the “armed” portion of the armed burglary charge. . . . The Florida Supreme Court has said that a boilerplate motion for judgment of acquittal is legally insufficient. Woods v. State, 733 So. 2d 980, 984-85 (Fla. 1999) (“Florida Rule of Criminal Procedure 3.380 requires that a motion for judgment of acquittal ‘fully set forth the grounds on which it is based.’”). It follows that the defendant has made “a facially sufficient claim for postconviction relief,” Boykin v. State, 725 So. 2d 1203, 1203 (Fla. 2d DCA 1999), and we must remand for further proceedings.

Gonzalez v. State, 13 So. 3d at 1115. An examination of the transcript shows that trial counsel made a very general and unspecific motion for judgment of acquittal and did not argue the “armed” portion of the burglary charge.2 We again remand this issue for further proceedings.

Last, the defendant asserts that he was prejudiced by the mistaken introduction into the jury room of a BOLO flyer previously ruled to be

2 See also Woods v. State, 733 So. 2d 980, 984-85 (Fla. 1999) (holding that a boilerplate motion for judgment of acquittal is insufficient). Resolving this issue could have an impact on the defendant’s sentence.

inadmissible Williams3 rule evidence. We agree with the trial court that this was harmless error, as it was duplicative of other admissible evidence that the jury had before it, and we affirm on this point.

We reverse the order on appeal and remand for further proceedings as to Gonzalez’s points 1 and 2, with instructions to use the Graham factors to evaluate the defendant’s motion for appointment of counsel in order assist him with his second point on appeal, and to address the substance of the defendant’s facially sufficient claim of ineffective assistance of counsel on the motion for judgment of acquittal for “armed” burglary.

Affirmed in part, reversed and remanded in part.

3 Williams v. State, 110 So. 2d 654 (Fla. 1959).

 

Courtesy of David Edelstein