Florida Criminal Law Opinions

ARTHUR THOMPSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-2418.

District Court of Appeal of Florida, Fourth District.

June 25, 2008.

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan, Judge; L.T. Case No. 89-6825 CF10A.

Ryan J. Sydejko of Loren Rhoton, P.A., Tampa, for appellant.

Bill McCollum, Attorney General, Tallahassee, and August Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant, Arthur Thompson, was convicted by a jury, on July 22, 1991, of first-degree murder, burglary with assault and battery, and robbery, all arising from his uninvited entry into a trailer and killing of its resident. The trial court sentenced Thompson to life in prison as a habitual felony offender (HFO) with a 25-year mandatory minimum for the murder conviction, life in prison as a HFO for the burglary conviction, and 30 years in prison as a HFO for the robbery conviction. The sentences ran consecutively to each other. It was only the designation of appellant as a HFO that permitted the trial court to sentence him above the guidelines. See § 775.084(4)(e), Fla. Stat. (1989).

Appellant filed a rule 3.800(a) motion in the trial court seeking relief pursuant to Hale v. State, 630 So.2d 521 (Fla. 1993), which held that HFO sentences cannot run consecutively to each other when the offenses occur in a single criminal episode. Under State v. Callaway, 658 So.2d 983 (Fla. 1995), Hale can be applied retroactively. Teague v. State, 871 So.2d 301 (Fla. 1st DCA 2004) (holding that a Hale claim is cognizable in a rule 3.800(a) motion as long as the fact that multiple convictions arose from a single criminal episode is readily apparent from the face of the record). The trial court deleted the HFO designation from all three sentences and reduced the 30-year robbery sentence to 15 years, the statutory maximum sentence for a second-degree felony without enhancement. Otherwise, the sentences were unchanged.

Thompson appealed the changed sentence, arguing for a de novo resentencing hearing because the consecutive life sentence for the

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burglary conviction is still a sentence above the guidelines. See Brooks v. State, 937 So.2d 827, 828 (Fla. 2d DCA 2006) (finding that sentencing guidelines apply to resentencing following a successful rule 3.800(a) motion, but the state has the right to seek an upward departure).

A defendant need not be present when a court simply deletes a HFO designation without otherwise changing the sentence. Catalan v. State, 911 So.2d 203 (Fla. 3d DCA 2005). In this case, however, when the trial court deleted the HFO designation, there was no justification for a sentence above the guidelines. Dougherty v. State, 785 So.2d 1221, 1223 (Fla. 4th DCA 2001) (stating a defendant is entitled to be present at sentencing, except in “resentencing cases where all that is required on remand is a ministerial act of sentence correction”). Although, a departure sentence for the burglary conviction may be justified, the trial court must give reasons for imposing a departure sentence. Because appellant’s HFO designation was improper under Hale, a de novo resentencing hearing is necessary for the court to consider whether a sentence above the guidelines is justified.

Reversed and remanded for a de novo resentencing hearing.

SHAHOOD, C.J., FARMER and KLEIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Jorge Alberto Castillo, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-154

District Court of Appeal of Florida, Third District.

Opinion filed June 25, 2008.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Dennis J. Murphy, Judge, Lower Tribunal No. 94-42646.

Eduardo Soto, Andrea Morey, Kate Walling, and Karla Lammers, for appellant.

Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.

Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.

SUAREZ, J.

Jorge Alberto Castillo seeks to reverse the trial court’s order denying his motion to vacate his plea pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand.

Castillo is a Peruvian citizen. In 1995, he pleaded guilty to a forgery charge and adjudication was withheld.¹ Castillo asserts that his application for permanent residency has since been denied and that he is subject to deportation. Castillo’s Rule 3.850 petition to vacate his plea and conviction is timely under Green,² as the record shows that Castillo has not previously been served with an Immigration and Naturalization Service (INS) Notice to Appear. In his petition, Castillo claims that he was not given the required deportation warnings in the 1995 plea colloquy, and that the withhold of adjudication should be vacated so that he may seek an INS waiver of the convictions remaining on his criminal record. The trial court summarily denied the petition.

On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A), (D); Green, 944 So. 2d at 219 (Fla. 2006) (holding

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that the trial court may summarily deny the post-conviction petition only if it attaches record that conclusively refutes one or more of the petitioner’s claims; otherwise, the defendant must receive an evidentiary hearing). Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

1. Castillo has another conviction for purchasing cannabis. His sworn motion (filed by counsel) alleges that this was a minor offense and is eligible for a waiver of deportation under the federal Immigration and Nationality Act. The State’s response, filed in the trial court, alleged that the conviction was a felony, but the State failed to file the judgment and failed to address the claim that Castillo is eligible for a waiver.

2. State v. Green, 944 So. 2d 208 (Fla. 2006).

—————

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Jimil Troutman, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-459

District Court of Appeal of Florida, Third District.

Opinion filed June 25, 2008.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, William Thomas, Judge, Lower Tribunal No. 06-25000.

Jimil Troutman, in proper person.

Bill McCollum, Attorney General, for appellee.

Before SUAREZ, ROTHENBERG, and LAGOA, JJ.

LAGOA, J.

Jimil Troutman (”Troutman”) appeals from the trial court’s order denying

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his motion to correct credit for jail time served filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s denial as we find that the record conclusively refutes Troutman’s claim.

On July 29, 2006, Troutman was arrested and charged with one count of robbery in case number 06-25000. On March 15, 2007, following a plea, Troutman was released from prison with a term of probation not to exceed five years. On October 13, 2007, Troutman was arrested for battery and other probation violations. During a November 7, 2007 probation revocation hearing, the trial court in case number 06-25000 adjudicated Troutman guilty, revoked his probation and sentenced him to serve 364 days in jail.

In his Rule 3.800(a) motion, Troutman contends that he is entitled to a credit of 230 days for time served from July 29, 2006 to March 15, 2007. The record, however, conclusively refutes Troutman’s claim. During the November 7, 2007 probation revocation hearing, Troutman specifically entered into a plea where he acknowledged that he would lose the gain time served prior to the October 13, 2007 arrest. Specifically, the record conclusively shows as follows:

THE COURT: Mr. Troutman, do you understand that as a condition of this plea, you will only receive credit for time served from the date of your last arrest?

That means that you will get credit for time served only from November 6th, 2007. No other time that you spent in on this case would you receive credit for. Do you understand that?

THE DEFENDANT: Yes, sir.

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THE COURT: Knowing that, do you still wish to enter into this admission?

THE DEFENDANT: Yes, sir.

* * * *THE CORRECTION OFFICER: He picked up a misdemeanor and he’s been in since 10-13.

THE COURT: All right. Give him credit for time served from 10-13. Good luck to you, sir.

Because the record conclusively establishes that Troutman is not entitled to relief, we affirm the trial court’s denial.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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PERRY DEAS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-3380.

District Court of Appeal of Florida, Fourth District.

June 25, 2008.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 01-4118CF10D.

Perry Deas, Okeechobee, pro se.

No appearance required for appellee.

STONE, J.

Perry Deas appeals the trial court’s denial of his public records request.

Deas is currently serving a life sentence following his conviction for first-degree murder. He seeks an order compelling production of public records pursuant to section 119.01, Florida Statutes (2006). Deas requested an order requiring the state to produce the transcript for the sentencing hearing of Alton Hobbs, a witness who testified at Deas’ trial. Deas alleged that the state violated Brady v. Maryland, 373 U.S. 83 (1983), in failing to disclose evidence of a deal with Hobbs that could have been used to impeach the state’s witness.

Woodfaulk v. State, 935 So. 2d 1225, 1226 (Fla. 5th DCA 2006), the court recognized that a prisoner is entitled, under the public records act, to an accelerated hearing on a petition requesting access to public records under the statute. Section 119.11(1), Florida Statutes, provides: “Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases.”

Deas requested that his public records request be set for hearing within a reasonable amount of time. Deas, however, failed to state in his request that he is willing to pay for all requested records. The trial court, without a hearing, denied the motion on the ground that Deas was not entitled to state-funded copies to assist him in preparing for post-conviction relief.

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The trial court correctly recognized that prisoners have no right to free transcripts for use in preparation of a post-conviction motion. See Woodfaulk, 935 So. 2d at 1227. On appeal, Deas asserts he is willing to pay for the requested records. We note that in Woodfaulk, the court explicitly recognized that Woodfaulk’s affidavit advised the trial court that he was willing to pay the costs. Id. at 1225.

As Deas did not advise the trial court of his willingness to pay the costs, we find no abuse of discretion and affirm, without prejudice to Deas’ right to again seek the public records by tendering the required payment.

STEVENSON and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing

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GARY JACKSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D06-2680.

District Court of Appeal of Florida, Fourth District.

June 25, 2008.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Stanton S. Kaplan, Judge, L.T. Case No. 04-2414 CF10.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

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

HAZOURI, J.

Gary Jackson appeals from his judgments of convictions and sentences for carjacking and armed burglary of a conveyance and has filed a motion for a new trial based upon his assertion that there is a lack of a complete trial transcript of the proceedings below. This court relinquished jurisdiction so that the trial court could determine whether there could be a reconstruction of the record below. On May 28, 2008, the trial court entered an order wherein it found that the record on appeal is devoid of the trial testimony as well as the arguments of counsel and the parties agreed reconstruction of the record could not be successfully completed.

The law is well established that a defendant who has exercised the right to appeal is entitled to a full appellate record, including a full transcript of the trial. See Delap v. State, 350 So. 2d 462 (Fla. 1977). Since the full transcript of the proceedings requested by the defendant is unavailable for review by this court, and since the omitted requested portions of the transcripts are necessary for a complete review of this cause, we reverse and remand for a new trial.

Reversed and Remanded.

FARMER and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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