Florida Criminal Law Opinions

Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.

Not final until disposition of timely filed motion for rehearing.

Before SHEPHERD, CORTINAS, and SALTER, JJ.

Opinion

SHEPHERD, J.

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Milvio Coiscou appeals his conviction of attempted second-degree murder after he shot the victim in the eye with a BB gun, thinking the safety was on.

The State charged Coiscou with attempted first-degree murder with a deadly weapon. The trial court instructed the jury on attempted premeditated murder, and the lesser-included offenses of attempted second-degree murder and attempted voluntary manslaughter by act. The attempted voluntary manslaughter charge given by the trial court was the then existing standard:

Milvio A. Coiscou committed an act or procured the commission of an act, which was intended to cause the death of O.F. (A Minor), and would have resulted in the death of O.F. (A Minor), except that someone prevented Milvio A. Coiscou from killing O.F. (A Minor) or he failed to do so.

See Fla. Std. Jury Instr. (Crim.) 7.7 (2007) (emphasis added).

Subsequent to the trial of this case, the Florida Supreme Court disapproved that portion of the instruction which requires the State to prove the defendant committed an act “which was intended to cause the death” of the victim. State v. Montgomery, 35 Fla. L. Weekly S204, S207 (Fla. Apr. 8, 2010) (“[T]he relevant intent is the intent to commit an act which caused the death,… not… that the defendant intended to kill the victim.”); see also In re Amends. to Std. Jury Instrs. in Crim. Cases-Instr. 7.7, 35 Fla. L. Weekly S209 (Fla. Apr. 8, 2010) (simultaneously amending standard jury instruction 7.7 on an interim basis, striking the language requiring an intent to kill). Of course, the trial court did not

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have the benefit of Montgomery at the time of trial. Although the defendant did not object to the giving of this jury charge in the trial court, the State properly concedes that because the offense for which the defendant was adjudged by the jury was only one-step removed from the necessarily included offense of manslaughter, the error is per se reversible. See Montgomery, 35 Fla. L. Weekly at S207 (citing Pena v. State, 901 So. 2d 781 (Fla. 2005)).

We note this Court, in Valdes-Pino v. State, 23 So. 3d 871 (Fla. 3d DCA 2009), certified decisional conflict with the First District Court of Appeal’s opinion in Montgomery v. State, 34 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009). In light of the Florida Supreme Court’s approval of Montgomery, we conclude Valdes-Pino is no longer controlling precedent in this District.

Reversed and remanded for a new trial.

Alfred Isaac, pro se, Appellant.

Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

An appeal from the Circuit Court for Alachua County. David A. Glant, Judge.

Opinion

PER CURIAM.

Alfred Isaac, Appellant, challenges the trial court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Appellant alleged ten grounds of ineffective assistance of counsel and presented one double jeopardy claim. We affirm the trial court’s non-summary

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denial of claim I and summary denial of claim XI without further discussion. However, we reverse the trial court’s summary denial of claims II through X.

In support of its summary denial of claims II through X, the trial court identified nine documents as attachments to its order. These documents, however, were not actually attached to the trial court’s order. The State correctly concedes that the trial court failed to attach portions of the record conclusively refuting claims II through X and that the trial court’s summary of denial of these claims must be reversed and remanded for attachment of the portions of the record that conclusively refute the claims. See Doss v. State, 644 So. 2d 124, 125-26 (Fla. 1st DCA 1994) (reversing and remanding claims where the trial court relied on the record in finding the claims without merit but failed to attach pertinent portions of the record to the order summarily denying the claims); see also Taylor v. State, 583 So. 2d 823, 823 (Fla. 4th DCA 1991) (reversal and remand appropriate where some records were referred to in the order, but they were not attached as required by Rule 3.850). On remand, we direct the trial court to attach the portions of the record referenced in its order as to claims II through X or to conduct an evidentiary hearing on these claims, if necessary.

AFFIRMED in part, REVERSED in part, and REMANDED with directions. HAWKES, C.J., BENTON and LEWIS, JJ., CONCUR.

Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

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

Not final until disposition of timely filed motion for rehearing.

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

Opinion

SCHWARTZ, S J.

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No error has been demonstrated as to either of the issues presented by the defendant in this appeal from convictions of one count of carjacking, two counts of kidnapping, two counts of robbery, five counts of sexual battery, and one count of arson. See Conde v. State, 860 So. 2d 930 (Fla. 2003); Rolling v. State, 695 So. 2d 278 (Fla. 1997); New York v. Harris, 495 U.S. 14 (1990); U.S. v. Watson, 423 U.S. 411 (1976); Craig v. Singletary, 127 F.3d 1030 (11th Cir. 1997). Furthermore, considering the entire record, including but not limited to the fact that unchallenged evidence established to a moral certainty that Mora was guilty of the horrendous series of crimes involved in this case, none of the disputed rulings could have affected the result. See Ventura v. State, 29 So. 3d 1086 (Fla. 2010).

Affirmed.

James Marion Moorman, Public Defender, and C. Suzanne Bechard, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.

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

Appeal from the Circuit Court for Hillsborough County; Gregory P. Holder, Judge.

DAVIS, Judge.

Astor Burpee Henry was convicted of one count of possession of cocaine with intent to deliver within 1000 feet of a church and was sentenced to twenty years in prison. He challenges his conviction by alleging entitlement to a new trial based on four

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trial court errors he claims occurred. We agree that the trial court committed reversible error by failing to conduct a Richardson¹ hearing and that Henry is entitled to a new trial as a result of this error.

Henry’s convictions resulted from an undercover drug operation using a confidential informant. The confidential informant called and asked Henry to deliver $950 of cocaine to her hotel room. The transaction involved a series of telephone calls with Henry, some of which were recorded and all of which were listened to by the officers present. Henry and two other men arrived at the hotel. Henry was driving a truck owned by one of the passengers. Once Henry was detained and the truck was searched, a large quantity of cocaine was found wedged between the bed of the truck and the bed liner.

The officers involved in the undercover operation testified at trial. Each officer was listed as a category A witness by the State. See Fla. R. Crim. P. 3.220(b)(1)(A)(i) (2005) (including as category A witnesses eye witnesses, investigating officers, and those present for recorded and unrecorded statements made by the defendant). Just prior to trial, the State sought to qualify Officer Tamboe as an expert witness based on his field experience as a member of a drug unit. Henry objected, arguing that Officer Tamboe was not listed as an expert during discovery. The trial court overruled the objection, determining that the State should have an opportunity to lay the foundation with regard to the officer’s qualifications as an expert. When Henry’s counsel tried to renew the objection to the testimony during trial, the trial court overruled the objection. Henry claims on appeal that the trial court erred when it failed to conduct

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a Richardson hearing where the State had not given the required notice that Officer Tamboe would be testifying as an expert.

Under the version of rule 3.220(b)(1)(A)(i) in effect at the time of Henry’s trial, designating a witness as an expert witness at trial required listing that witness as such in pretrial discovery. See Luis v. State, 851 So. 2d 773, 775 (Fla. 2d DCA 2003). Merely listing the witness as a category A witness did not satisfy the plain language of the rule. Id. Failure to include the expert designation in pretrial discovery constituted a discovery violation, ² requiring the trial court to conduct a Richardson hearing “to determine whether the… discovery violation was (1) inadvertent or willful, (2) trivial or substantial, and (3) prejudicial to… trial preparation.” Luis, 851 So. 2d at 776.

In the instant case, it is undisputed that Officer Tamboe was only listed as a category A witness. Once the State sought to qualify Officer Tamboe as an expert witness and the defense objected to the discovery violation, the trial court should have conducted a Richardson hearing.³ The trial court’s failure constitutes a reversible error unless the error can be shown to be harmless. See State v. Schopp, 653 So. 2d 1016, 1020 (Fla. 1995) (“In determining whether a Richardson violation is harmless, the

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appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense.”). Absent a clear showing of lack of procedural prejudice, the State has not met the burden of proof required to deem this error harmless. See id Henry’s counsel was not allowed to complete his argument to the trial court, and we have no indication of whether he had planned another defense or trial strategy prior to the court’s ruling. “As we are bound to consider every conceivable course of action in assessing procedural prejudice, we cannot find the error harmless.” Flores v. State, 872 So. 2d 441, 443 (Fla. 4th DCA 2004) (citation omitted) (internal quotation marks omitted).

We reverse Henry’s judgment because the trial court erred by failing to conduct a Richardson hearing when the State sought to designate Officer Tamboe as an expert despite failing to list him as such in pretrial discovery. We remand the matter for a new trial because the record does not conclusively show that the error was harmless. Reversing on this basis renders Henry’s remaining claims moot, and so we need not address them.

Reversed and remanded.

KELLY and KHOUZAM, JJ., Concur.

——–

James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

BY ORDER OF THE COURT:

We grant the Appellant’s motion for rehearing and clarification and deny the motion for rehearing en banc. The opinion dated May 28, 2010, is hereby withdrawn and the attached opinion is substituted. No further motions for rehearing will be entertained.

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

JAMES BIRKHOLD, CLERK

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Appeal from the Circuit Court for Polk County; Ernest McClain Jones, Jr., Judge.

WHATLEY, Judge.

This is an appeal pursuant to Anders v. California, 386 U.S. 738 (1967), of G.D.’s adjudication of delinquency for possession of cannabis and paraphernalia. After careful review of the record, we find no error in G.D.’s adjudication of delinquency.

Appellate counsel has raised an issue of merit regarding the trial court’s assessment of a public defender fee against G.D. without notice and an opportunity to

object. G.D. preserved this issue for review by filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). His motion was deemed denied when the trial court took no action on it within sixty days. We find merit in this issue and reverse the public defender fee.

Section 938.29, Florida Statutes (2008), authorizes the assessment of a public defender fee and grants the state a lien to secure its payment. Although imposition of the fee is mandatory, see Cook v. State, 896 So. 2d 870 (Fla. 2d DCA 2005), the statute requires the trial court to give the defendant notice and an opportunity to object to the amount. See § 938.29(5). In addition, Florida Rule of Criminal Procedure 3.720(d)(1) provides that at sentencing, a defendant must be given notice of the right to a hearing to contest the amount of the lien. Here, the trial court failed to provide G.D. notice and an opportunity to contest the public defender fee.

Accordingly, we reverse the public defender fee. On remand, the trial court may reimpose the fee once our mandate issues only if it provides G.D. notice of its intent to do so and an opportunity for a hearing on the matter. See Bruno v. State, 960 So. 2d 907 (Fla. 2d DCA 2007).

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

SILBERMAN and CRENSHAW, JJ., Concur.

Charles J. Christ, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant.

F. Wesley Blankner, Jr., Orlando, for Appellee.

Appeal from the Circuit Court for Orange County, A. Thomas Mihok, Judge.

PALMER, J.

The State timely appeals the downward departure sentence imposed by the trial court on appellee, Marcus Oneal Leverett. Concluding that the reasons given by the trial court for imposing a downward departure sentence are not supported by competent, substantial evidence, we reverse.

Leverett and Brandon Harris were tried together with separate juries. The record reflects that Leverett and Harris knocked on an apartment door and then pushed their way inside. Harris had a BB gun. The defendants made all seven occupants of the apartment get on the floor, face down. Harris struck one victim in the face with the gun

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and then Leverett struck the same victim in the face with his fist. The defendants robbed the victims of a small amount of money and then fled the scene.

The evidence during sentencing showed that Leverett chose the address of the targeted apartment because he thought that he knew the residents and thought there was a safe in the apartment. However, after Leverett and Harris broke in, they realized they had the wrong apartment.

The trial court did not impose a downward departure on Harris; he was sentenced to a term of 121.5 months’ in prison followed by 15 years’ of probation, which was the lowest permissible incarceration under the sentencing guidelines. The trial court indicated that it imposed this sentence because the evidence showed that Leverett was the planner or instigator of the crime, and because Harris did not have a prior criminal record.

As for Leverett, the lowest permissible sentence under the sentencing guidelines was 196.8 months’ imprisonment. The trial court imposed a downward departure sentence of 12 years’ imprisonment, finding that the offense was committed in an unsophisticated manner, was an isolated incident for which Leverett showed remorse; that Leverett was too young to appreciate the consequences of his actions; and, that the sentence was proportional to Harris’ 12-year sentence. At sentencing, the trial court explained:

Okay. The court is going to impose the following sentences with regard to the various counts. This is going to be a downward departure, for a couple of reasons. One of the offenses was committed in an unsophisticated manner and was an isolated incident for which this defendant has shown remorse. At the time of the offense, I believe Leverett was too young to appreciate the consequences of the offense.

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Third reason for downward departure is the motion of proportionality of Mr. Leverett and [Harris] were coperpetrators in this offense. [Harris] had the firearm–or the weapon, whichever version of the testimony one wants to believe–and utilized that firearm to assault one or more of the victims in this case.

[Harris'] jury, for whatever reason, found [co-defendant] guilty of some lesser offenses and Mr. Leverett’s jury took a second different look at the facts and came back with a different result on some of these counts. But it seems to me that these coperpetrators need to be treated, roughly, the same. And, in fact, given the fact that Harris had the firearm, many people could argue that his sentence should be much more than the sentence imposed on Mr. Leverett, even though there is also that Leverett was the prime mover of this. But for those reasons, the court is going to do a downward departure…

The State argues that the trial court erred when it departed downward in sentencing Leverett. We agree.

Appellate courts apply a mixed standard of review when analyzing a downward departure sentence. State v. Mann, 866 So.2d 179, 181 (Fla. 5th DCA 2004). First, the appellate court must determine whether the trial court applied the correct rule of law and whether competent, substantial evidence supports the trial court’s reason for imposing a downward departure sentence. Id.; see also State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006). In making this determination, the appellate court must assess the evidence for sufficiency, not weight. Mann, 866 So.2d at 181. Second, if the appellate court determines that the trial court’s reason for departure was in accord with the law and supported by competent, substantial evidence, the applicable court must then decide whether the trial court was correct in determining that the downward departure sentence was in the best interest of the defendant. Subido, 925 So.2d at 1057. The

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reviewing court should not disturb this determination absent a showing of an abuse of discretion. Id Accord State v. Tyrrell, 807 So.2d 122, 125 (Fla. 5th DCA 2002).

Section 921.0026(2) of the Florida Statutes (2007) sets forth a list of mitigating circumstances permitting the imposition of a downward departure from the lowest permissible guidance sentence. State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008). However, the trial court can impose a downward departure sentence for reasons not delineated in section 921.0026, as long as the reason given is supported by competent, substantial evidence and not otherwise prohibited. Id.

Here, the trial court gave three reasons for imposing a downward departure sentence: (1) the offense was committed in an unsophisticated manner and was an isolated incident for which Leverett showed remorse; (2) Leverett was 21 years of age at the time of the offense; thus, he was too young to appreciate the consequences of his actions; and, (3) Leverett’s sentence was proportional to the sentence Harris received.

The first two reasons are permissive mitigating factors under section 921.0026(2)(j)-(k) of the Florida Statutes which provides:

921.0026 Mitigating Circumstances.

* * *

(2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to:

(j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.

(k) At the time of the offense, the defendant was too young to appreciate the consequences of the offense.

§ 921.0026(2), Fla. Stat. (2007).

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However, the trial court’s finding that the offense was committed in an unsophisticated manner and was an isolated incident for which Leverett has shown remorse is not supported by competent, substantial evidence. Leverett’s home invasion robbery was sophisticated as evidenced by the fact that he was actively involved in the robbery; he chose the location because he thought that he knew the residents and that the apartment contained a safe; he knocked on the door, asked the victim who opened the door what time it was, then pushed his way into the apartment, pushed one of the victims up against the wall, then struck another victim in the face; he then fled the scene in his vehicle and, after he was stopped by law enforcement, he fled on foot and later struggled with the arresting officer. See State v. Deleon, 867 So.2d 636 (Fla. 5th DCA 2004) (holding that transporting cocaine via bicycle was not unsophisticated); State v. Chestnut, 718 So.2d 312 (Fla. 5th DCA 1998) (holding incident was not unsophisticated when defendant threw an object to break the windshield of a vehicle in order to stop it and assault the driver); State v. Morales, 718 So.2d 272 (Fla. 5th DCA 1998) (holding incident was not unsophisticated when defendant gained entry to home by deceit, at a time when defendant knew the victim would be alone, in order to sexually batter the victim).

Additionally, the home invasion was not an isolated incident because Leverett had a prior record which included a felony conviction for possession of cocaine and misdemeanor convictions for possession of marijuana, possession of drug paraphernalia, and trespass. See State v. Stephenson, 973 So.2d 1259 (Fla. 5th DCA 2004) (holding incident was not isolated when there was a substantial prior criminal record); State v. Deleon, 867 So.2d 636 (Fla. 5th DCA 2004) (holding that offense could

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not be characterized as isolated when defendant had multiple prior convictions for felonies and misdemeanors).

The second reason that the trial court gave for imposing a downward departure sentence, that Leverett was too young to appreciate the consequences of his actions, also is not supported by competent, substantial evidence. Section 921.0026(2)(k), of the Florida Statutes (2007) requires that the defendant must be unable to appreciate the consequences of the offense in order to be eligible to receive a downward departure sentence. No evidence was presented to show that Leverett suffered from a mental defect which inhibited his ability to appreciate the consequences of his offenses. See State v. Salgado, 948 So.2d 12, 16 (Fla. 3d DCA 2006) (holding that no evidence to show that the 21-year-old defendant was unable to appreciate consequences; age and conclusion of immaturity alone are not sufficient).

The third reason that the trial court gave for imposing a downward departure sentence, that Leverett’s sentence was proportional to the sentence Harris received, is inappropriate in this case because each defendant was convicted of committing different offenses and the jury convicted Leverett of committing his offenses with a firearm. Also, Leverett had a prior criminal record, and therefore, his minimum guidelines sentence was higher than Harris’. See Thomas v. State, 461 So.2d 274 (5th DCA 1985) (holding that the trial court was not permitted to depart from the sentencing guidelines simply because the co-defendant received a longer sentence; the court explained that if the co-defendant had an extensive criminal history and the defendant did not, it would not be appropriate to give defendant a sentence outside the guidelines simply because it was indicated in the co-defendant’s case).

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Accordingly, we reverse Leverett’s sentence and remand for re-sentencing in accordance with the statutory sentencing guidelines.

REVERSED and REMANDED.

MONACO, C.J. and JACOBUS, J., concur.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Volusia County, Patrick Kennedy, Judge.

PER CURIAM.

The State appeals from an order granting Hill’s motion for discharge based upon an alleged violation of Hill’s right to a speedy trial. See Fla. R. Crim. P. 3.191. We reverse.

In response to Hill’s notice of expiration of trial date, the trial court scheduled trial for Monday, January 4, 2010. However, on December 31, 2009, the trial court

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erroneously determined that the recapture period had expired and entered an order of discharge. The State argues, and Hill acknowledges, that the scheduled trial date actually fell on the last day of the recapture period. See State v. McFarland, 747 So. 2d 481 (Fla. 5th DCA 2000); State v. Edwards, 528 So. 2d 120 (Fla. 5th DCA 1988). Because the scheduled trial date fell within the recapture period, it was improper to enter the order of discharge.

REVERSED and REMANDED.

MONACO, C.J., EVANDER and COHEN, JJ., concur.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Volusia County, Patrick Kennedy, Judge.

PER CURIAM.

The State appeals from an order granting Hill’s motion for discharge based upon an alleged violation of Hill’s right to a speedy trial. See Fla. R. Crim. P. 3.191. We reverse.

In response to Hill’s notice of expiration of trial date, the trial court scheduled trial for Monday, January 4, 2010. However, on December 31, 2009, the trial court

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erroneously determined that the recapture period had expired and entered an order of discharge. The State argues, and Hill acknowledges, that the scheduled trial date actually fell on the last day of the recapture period. See State v. McFarland, 747 So. 2d 481 (Fla. 5th DCA 2000); State v. Edwards, 528 So. 2d 120 (Fla. 5th DCA 1988). Because the scheduled trial date fell within the recapture period, it was improper to enter the order of discharge.

REVERSED and REMANDED.

MONACO, C.J., EVANDER and COHEN, JJ., concur.

Donald C. Ashworth, Daytona Beach, pro se.

No appearance for Respondent

Petition for Belated Appeal, A Case of Original Jurisdiction.

PER CURIAM.

Petitioner Donald C. Ashworth entered into a negotiated plea and was sentenced on April 28, 2006. His petition for belated appeal, filed on July 9, 2010, is untimely because it was not filed within the two-year time period and does not meet the requirements of Florida Rule of Appellate Procedure 9.141(c)(4)(A). Therefore, Ashworth’s petition is dismissed. See Dickson v. State, 22 So. 3d 547 (Fla. 2d DCA 2009); Brown v. State, 826 So. 2d 1047 (Fla. 5th DCA 2002). While the untimeliness of his petition is dispositive, we note that, additionally, the petition is facially insufficient because it does not comply with Florida Rule of Appellate Procedure 9.141(c)(3), including the fact that it is missing a proper oath, sworn to under penalty of perjury.

DISMISSED.

MONACO, C.J., TORPY and EVANDER, JJ., concur.

David H. Abrams, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Lisa Raleigh, Special Counsel, Office of the Attorney General, Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Leon County. John C. Cooper, Judge.

Randall C. Marshall and Maria Kayanan, American Civil Liberties Union of Florida, Miami, and Diana Kasdan, American Civil Liberties Union Foundation, New York, N.Y., amici curiae.

CLARK, J.

This is an appeal of a circuit court order compelling a pregnant woman to submit to any medical treatment deemed necessary by the attending obstetrician, including detention in the hospital for enforcement of bed rest, administration of

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intra-venous medications, and anticipated surgical delivery of the fetus. The action was initiated in the circuit court by the State Attorney under the procedure described in In re Dubreuil, 629 So. 2d 819 (Fla. 1994). As provided in Dubreuil, after the State Attorney received notification from a health care provider that a patient refused medical treatment, the State Attorney exercised his discretion to determine that a sufficient state interest was at stake to justify legal action.

This appeal is moot with regard to Appellant because, as ordered, she submitted to the hospital confinement, medical treatment and surgical delivery. Two days after entry of the order, Appellant’s deceased fetus was delivered by Cesarean section. Thus, the justiciable controversy between these parties has expired. However, mootness does not preclude appellate jurisdiction if the issue is “capable of repetition yet evading review,” as in the case of medical issues which require immediate resolution. See Roe v. Wade, 410 U. S. 113 (1973); Matter of Dubreuil, 629 So. 2d 819(Fla. 1993); Holly v. Auld, 450 So. 2d 217, n. 1 (Fla. 1984); Philip Padovano, Florida Appellate Practice, § 1.4, p. 9 (2007-8 ed.).

The situation presented to the trial court in this case is capable of repetition yet evading review. Florida case precedent has addressed the right to privacy where a patient seeks to discontinue life-sustaining medical treatment, refuse a lifesaving medical procedure, and as applied to statutory regulation of a minor’s decision whether or not to continue her pregnancy. In re Guardianship of

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Browning, 568 So. 2d 4 (Fla. 1990); In re Dubreuil 629 So. 2d 819 (Fla. 1994); In re T.W., 551 So. 2d 1186 (Fla. 1989). However, case precedent governing the use of a Dubreuil proceeding to compel a pregnant woman to undergo medical confinement, treatment and procedures against her wishes for the benefit of her unborn fetus is not found in Florida’s jurisprudence. In an effort to assist trial courts and counsel involved in these expedited, if not emergency proceedings, we exercise our discretionary authority to address this appeal. See In re T. A. C. P., 609 So. 2d 588 (Fla. 1992); Harrell v. St. Mary’s Hospital, 678 So. 2d 455 (Fla.4th DCA 1996).

The trial court found that the appellant had failed to follow the doctor’s instructions and recommendations, rendering her pregnancy “high-risk,” and found a “substantial and unacceptable” risk of severe injury or death to the unborn child if the appellant continued to fail to follow the recommended course of treatment. The trial court stated the rule that “as between parent and child, the ultimate welfare of the child is the controlling factor,” and concluded that the State’s interests in the matter “override Ms. Burton’s privacy interests at this time.” The court ordered Samantha Burton to comply with the physician’s orders “including, but not limited to” bed rest, medication to postpone labor and prevent or treat infection, and eventual performance of a cesarean section delivery.

The law in Florida is clear: Every person has the right “to be let alone and

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free from government intrusion into the person’s private life.” Art. I, sec. 23, Fla. Const. This fundamental right to privacy encompasses a person’s “right to the sole control of his or her person” and the “right to determine what shall be done with his own body.” In re Guardianship of Browning, 568 So. 2d 4, 10 (Fla. 1990). The Florida Supreme Court has specifically recognized that “a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one’s health.” Browning, 568 So. 2d at 11.

A patient’s fundamental constitutional right to refuse medical intervention “can only be overcome if the state has a compelling state interest great enough to override this constitutional right.” Singletary v. Costello, 665 So. 2d 1099, 1105 (Fla. 4th DCA 1996). Thus, the threshold issue in this situation is whether the state established a compelling state interest sufficient to trigger the court’s consideration and balance of that interest against the appellant’s right to refuse to submit to the medical intervention the obstetrician prescribed. The state’s interest in the potentiality of life of an unborn fetus becomes compelling “at the point in time when the fetus becomes viable,” defined as “the time at which the fetus becomes capable of meaningful life outside the womb, albeit with artificial aid.” Roe v. Wade, 410 U. S. 113, 163 (1973); In re T. W., 551 So. 2d 1186, 1193 (Fla. 1989). The Legislature has defined “viability” as “that stage of fetal development

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when the life of the unborn child may with a reasonable degree of medical probability be continued indefinitely outside the womb.” § 390.0111(4), Fla. Stat. No presumption of viability is provided in the statute.

Because there is no statutory or precedential presumption of viability, in terms of the stage of pregnancy or otherwise, there must be some evidence of viability via testimony or otherwise. Only after the threshold determination of viability has been made may the court weigh the state’s compelling interest to preserve the life of the fetus against the patient’s fundamental constitutional right to refuse medical treatment.

Even if the State had made the threshold showing of viability and the court had made the requisite determination, the legal test recited in the order on appeal was a misapplication of the law. The holding in M. N. v. Southern Baptist Hosp. of Florida, 648 So. 2d 769 (Fla. 1st DCA 1994), “that as between parent and child, the ultimate welfare of the child is the controlling factor,” does not apply to this case. Unlike this case, in M.N., the parents refused consent for a blood transfusion and chemotherapy for their 8-month-old infant. No privacy rights of a pregnant woman were involved.

The test to overcome a woman’s right to refuse medical intervention in her pregnancy is whether the state’s compelling state interest is sufficient to override the pregnant woman’s constitutional right to the control of her person, including

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her right to refuse medical treatment. Dubreuil, 629 So. 2d 819; Browning, 568 So. 2d 4; Public Health Trust of Dade County v. Wons, 541 So. 2d 96 (Fla. 1989). In addition, where the state does establish a compelling state interest and the court has found the state’s interest sufficient to override a pregnant patient’s right to determine her course of medical treatment, the state must then show that the method for pursuing that compelling state interest is “narrowly tailored in the least intrusive manner possible to safeguard the rights of the individual.” Browning, 568 So. 2d at 14.

REVERSED.

VAN NORTWICK, J., CONCURS WITH WRITTEN OPINION, and BERGER, WENDY, ASSOCIATE JUDGE, DISSENTS WITH WRITTEN OPINION.

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Van Nortwick, J., concurring

I concur completely with Judge Clark’s opinion. I write because, given the deprivation of her physical liberty and violation of her privacy interests, the proceeding below violated Samantha Burton’s constitutional right to appointed counsel in this case. Accordingly, I would reverse on these constitutional grounds as well.

The constitutional right to appointed counsel in criminal proceedings is wellestablished under the Sixth Amendment.¹ Gideon v. Wainwright, 372 U.S. 335 (1963). In civil proceedings, however, there is no corollary to the Sixth Amendment right to counsel. The Supreme Court has held that, under the Due Process Clause, “an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” Lassiter v. Department of Social Services, 452 U.S. 18, 26-27 (1981). For example, in In Re Gault, 387 U.S. 1 (1967), the Court held that the Due Process Clause of the Fourteenth Amendment requires appointment of counsel to represent a child in state civil delinquency proceedings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed.” Id. at 36.

In the context of a case involving the termination of parental rights, the

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Court in Lassiter examined the limited nature of the right to counsel in civil proceedings. There, the Court applied the case-by-case due process analysis established in Mathews v. Eldridge, 424 U.S. 319 (1976), to the question of whether indigent parents are entitled to counsel in proceedings to terminate their parental rights. Lassiter, 452 U.S. at 27 (citing Eldridge, 424 U.S. at 339). As the Lassiter court explained, courts must first evaluate the three Eldridge elements: “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” Id. Courts then “must balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.” Id.

The Florida Supreme Court has recognized the right to appointed counsel in certain civil proceedings under Florida’s Due Process Clause. See Art. I § 9, Fla. Const. Thus, “[t]he subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process.” In Re Beverly, 342 So. 2d 481, 489 (Fla. 1977); see also Pullen v. State, 802 So. 2d 1113, 1116 (Fla. 2001). Similarly, there is a right to appointed counsel in proceedings which can result in the permanent loss of parental custody. In Interest of D.B., 385 So. 2d 83, 90-91 (Fla. 1980).

An individual who faces involuntary hospitalization and mandated invasive

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medical treatment under the procedure established in In Re Dubreuil, 629 So. 2d 819 (Fla. 1994), has serious liberty and privacy interests at stake. Here, Ms. Burton was involuntarily admitted to the hospital and, ultimately, required to undergo a caesarian section against her will. She suffered a significant deprivation of her physical liberty and personal freedom at least the equivalent of the interests at stake in D.B. and Beverly. Although in the order under review the trial court directed the special assistant state attorney appointed for this proceeding to contact North Florida Legal Services, Inc., to request that office to provide Ms. Burton representation, no counsel appeared on her behalf until after the caesarian section was performed. Appointment of counsel after the fact does not satisfy the due process requirements under the Federal and Florida Constitutions. Here, the State had the time to appoint a special assistant state attorney to institute this proceeding. I see no reason why there was not also the opportunity to appoint counsel for Ms. Burton prior to the hearing.

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BERGER, W., Associate Judge, dissenting.

I agree with the majority that the trial judge applied the wrong legal standard. If this case were not moot, I would reverse and remand for consideration using the correct, compelling state interest standard. However, because I disagree with the majority view that this is a case capable of repetition yet evading review, I would dismiss the appeal as moot. Accordingly, I dissent.

This court was not presented with a case of first impression warranting an opinion to assist trial courts and counsel in similar future expedited cases. It matters not that the case before us involves a hospital’s desire to compel medical treatment over the objection of a pregnant woman. See Pemberton v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 66 F. Supp 2d 1247 (N.D. Fla. 1999) (State’s interest in preserving the life of the unborn child outweighed the pregnant mother’s constitutional right to refuse medical treatment.). The law to be followed is clear and unambiguous. The proper test to be applied when a trial court is presented with a request to override a competent adult’s constitutional right to refuse medical treatment was decided in In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990) (State has a duty to assure that a person’s wishes regarding medical treatment are respected unless the State has a compelling interest great enough to override this constitutional right.). The proper procedure to be followed when a healthcare provider wishes to override a patient’s decision to refuse medical treatment was

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outlined in In re Matter of Dubreuil, 629 So. 2d 819 (Fla. 1994) (Healthcare provider must immediately provide notice to both the state attorney, who is responsible for deciding whether to engage in legal action, and to interested third parties known to the provider.). Additionally, it is well settled that the State’s interest in preserving the life of an unborn child becomes compelling upon viability. Roe v. Wade, 140 U.S. 113, 163 (1978); In re T. W., 551 So. 2d 1186, 1194 (Fla. 1989) (Viability under Florida law occurs at that point in time when the fetus becomes capable of meaningful life outside the womb through standard medical measures. Under current standards, this point generally occurs upon completion of the second trimester.). Here the trial judge followed the correct procedure but applied the wrong legal standard. Instead of determining whether the State had a compelling interest in overriding the appellant’s right to refuse medical treatment, the judge determined forced treatment was in the best interest of the child.

The trial court specifically found that the risk of severe injury or death to the unborn child was substantial and unacceptable and that the interests of the State in this matter overrode appellant’s privacy interests.² While I believe the balancing

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of interests employed by the trial judge would have been appropriate under Browning, ³ it was the trial court’s application of the State’s parens patriae authority to override the appellant’s right to refuse medical treatment for an existing child that was in error. However, since the principles of law to be applied in this case are not new and the case is now moot, I would dismiss the appeal.

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^1. The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI.

^2. Due to the lack of an adequate record, we must presume there was sufficient evidence to support the trial judge’s decision, e.g., that viability was determined. See J.P. Morgan Chase Bank v. Combee, 883 So. 2d 330 (Fla. 1st DCA 2004) (Inadequacy of record on appeal required District Court of Appeal to presume that sufficient evidence supported trial court’s dismissal of bank’s complaint…the trial court’s decision could well be supported by evidence adduced at trial or hearing but not stated in the judge’s order or otherwise apparent in the incomplete record on appeal.); See also Hill v. Hill, 778 So. 2d 967 (Fla. 2001), quoting Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152) (Fla. 1979) (When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.)

^3. A finding of viability must be made before the trial court may engage in a balancing test. It is undisputed that appellant was in the 25th week, or third trimester, of pregnancy. Although this fact alone is not dispositive, it supports a finding of viability, even though not specifically stated in the judge’s order.
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