Florida Criminal Law Opinions

An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge, Lower Tribunal No. 89-30966.

Terry Coney, in proper person.

Bill Mc Collum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.

Before WELLS, SHEPHERD, and SALTER, JJ.

PER CURIAM.

For the sixth time since his 1990 conviction for robbery with a firearm and sentence as a habitual offender, Terry Coney (pro se) collaterally challenges the sentence. The trial court denied this latest effort as a successive post-conviction motion barred by prior adverse trial and appellate rulings, directed Coney to show cause why he should not be barred from filing further pro se motions in the circuit court case, and ultimately entered an order directing the clerk of that court to refuse any such further pro se filings in that case. We affirm each of these orders.

This Court entered an order to show cause why Coney should not be similarly barred from further pro se filings here. No such cause having been shown, we therefore direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to circuit court case number 89-30966 unless they have been reviewed and signed by an attorney who is a duly licensed member of the Florida Bar in good standing. Additionally, and absent a showing of good cause, any such further and unauthorized pro se filings by the defendant will subject him to appropriate sanctions. See State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999).

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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An Appeal from the Circuit Court for Miami-Dade County, Ivan F. Fernandez, Judge, Lower Tribunal No. 90-16875.

Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.

Before COPE, GREEN, and WELLS, JJ.

On consideration of the appellant’s motion for rehearing, the Court withdraws its previous opinion and substitutes the following opinion:

This is an appeal of an order on the motion of defendant-appellant Samuel G. Velez to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.

The defendant maintains that he should have been personally present when the trial court entered an order resentencing him on count one. Under the circumstances of this case, the defendant is incorrect.

At his sentencing in 1991,^* — the court imposed a fifty-year sentence on count one. Velez v. State, 596 So. 2d 1197, 1199 (Fla. 3d DCA 1992). In his rule 3.800(a) motion, the defendant argued, and the trial court agreed, that the fifty-year sentence exceeded the thirty-year legal maximum on count one. The court entered an order reducing the sentence on count one to thirty years.

Under the circumstances of this case, it was not necessary for the defendant to be personally present for this resentencing. That is so because count one was concurrent with count two, on which the defendant is serving a life sentence. The controlling sentence is the life sentence. The reduction of the sentence on count one to the legal maximum, thirty years, was a ministerial act and the defendant was not entitled to be personally present. See Richardson v. Moore, 754 So. 2d 64, 65 (Fla. 3d DCA 2000); Windisch v. State, 709 So. 2d 606, 607 (Fla. 2d DCA 1998).

In his second point, the defendant challenges the life sentence and three-year mandatory minimum sentence imposed for count two, armed burglary. This claim was raised by the defendant in a previous rule 3.800(a) motion, the denial of which was affirmed on appeal. Velez v. State, 920 So. 2d 9 (Fla. 3d DCA 2006). The current claim is therefore barred by collateral estoppel and the law of the case doctrine. State v. McBride, 848 So. 2d 287, 289-90 (Fla. 2003).

The remaining points are without merit.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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3.800 Appeal from the Circuit Court for Osceola County, Jon B. Morgan, Judge.

Humberto Cabrera, Jasper, pro se.

No Appearance for Appellee.

GRIFFIN, J.

Humberto Cabrera [”Cabrera”] appeals the denial of his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.

On April 22, 2003, Cabrera was convicted of one count of sexual battery against a mentally defective person, two counts of lewd and lascivious behavior, and two counts of battery. The trial court then dismissed the battery counts and sentenced Cabrera to serve twenty years in the Department of Corrections on the sexual battery charge, and sixty days in the county jail on the lewd and lascivious behavior counts. The sentences were to run concurrently. The trial court also found that Cabrera qualified as a sexual predator.

Cabrera incorrectly asserts on appeal that he was illegally sentenced as a sexual predator. He was convicted of committing the first-degree felony of sexual battery on a person, who by reason of a mental disease or defect, was incapable of appraising the nature of her conduct. § 794.011(1)(b),(4)(e), Fla. Stat. (2003). This is one of the crimes enumerated under the Florida Sexual Predator Statute, section 775.21(4)(a)1.a, Florida Statutes (2003):

The felony is a capital, life, or first-degree felony violation, or any attempt thereof, of s. 787.01 or s. 787.02, where the victim is a minor and the defendant is not the victim’s parent or guardian, or s. 794.011, s. 800.04, or s. 847.0145, or a violation of a similar law of another jurisdiction…

[Emphasis supplied]. Cabrera contends that to be designated a sexual predator, he must have committed the crime against a minor. As the trial court correctly noted in its order, the requirement under section 775.21(4)(a)1.a, Florida Statutes (2003), that the victim be a minor applies only to the offenses of kidnapping and false imprisonment. Under the clear terms of the sexual predator statute, the trial court was required to designate Cabrera as a sexual predator. See State v. Dugan, 685 So. 2d 1210, 1212 (Fla. 1996); State v. Curtin, 764 So. 2d 645, 647 (Fla. 1st DCA 2000).

AFFIRMED.

PALMER, C.J. and TORPY, J., concur.

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Petition for Writ of Prohibition to the Circuit Court for Lee County, Lynn Gerald, Jr., Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Respondent.

FULMER, Judge.

Clarence Fisher filed a petition for writ of habeas corpus in this court seeking to prohibit his prosecution for robbery on the ground that jeopardy attached once the trial court adjudicated him guilty of the lesser offense of robbery by sudden snatching in accordance with a plea agreement. By prior order, we treated the petition as a petition for writ of prohibition. We agree that Fisher’s prosecution for robbery violates double jeopardy protections. We therefore grant the petition and quash the trial court’s order allowing the State to withdraw from the plea agreement.

Fisher was charged by information with robbery, a second-degree felony. The State filed a notice of intent to seek a Prison Releasee Reoffender (PRR) sentence. The State and Fisher then entered into a plea agreement wherein Fisher would plead guilty to robbery by sudden snatching, a third-degree felony, in exchange for a five-year prison term as a PRR. The trial court accepted the parties’ plea agreement and adjudicated Fisher guilty of robbery by sudden snatching.

Shortly thereafter, the prosecutor realized that robbery by sudden snatching does not qualify for PRR sentencing and that Fisher’s bargained-for sentence is illegal. See, e.g., Cohen v. State, 920 So. 2d 682, 682 (Fla. 2d DCA 2006). The State then filed a motion to withdraw from the plea agreement, which the trial court granted, thereby allowing the State to prosecute Fisher for the originally charged offense of robbery. The order granting the motion to withdraw does not set aside Fisher’s adjudication of guilt on the offense of robbery by sudden snatching, and it is not clear from the appendices to the petition and the State’s response thereto whether the trial court at any point set aside the adjudication. Fisher filed the present petition seeking to prohibit his prosecution for robbery.

We conclude that jeopardy attached once the trial court adjudicated Fisher guilty of robbery by sudden snatching. See McManama v. State, 816 So. 2d 781, 783 (Fla. 2d DCA 2002) (holding that jeopardy attached once McManama was adjudicated guilty of misdemeanor driving while license suspended and that a subsequent felony conviction for driving while license suspended arising from the same incident violated his double jeopardy protections). Furthermore, it is immaterial that the adjudication resulted from the trial court’s procedural error in accepting a plea agreement to an illegal sentence or that the State’s plea offer was based on a mistake of law.

This court has instructive precedent on this issue. Watson v. State, 608 So. 2d 512, 513 (Fla. 2d DCA 1992), the jury deadlocked on the armed burglary count. The trial court declared a mistrial on that count and then orally adjudicated Watson not guilty of armed burglary. The prosecutor did not question the trial court’s oral pronouncement,¹ and the trial court subsequently entered a written judgment adjudicating Watson not guilty of armed burglary. The State scheduled a retrial on the armed burglary count, and Watson pleaded to the offense. In spite of the fact that Watson’s not-guilty adjudication was the product of a mistake, this court held that Watson’s armed burglary conviction violated double jeopardy considerations, and we reversed the conviction and remanded with directions to the trial court to discharge Watson as to the crime of armed burglary. Id. at 513-14. We noted that “[f]aced with the [the trial court’s] error, we cannot unring the bell that adjudicated Watson not guilty of armed burglary.” Id. at 514. Similarly, in the present situation, because the trial court adjudicated Fisher guilty of the offense of robbery by sudden snatching, neither the trial court nor this court is empowered to invalidate that adjudication based on the State’s mistake.

Because Fisher’s prosecution for robbery violates double jeopardy protections, we grant the petition for prohibition and quash the order granting the State’s motion to withdraw from the plea.

Petition granted.

CASANUEVA and STRINGER, JJ., Concur.

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

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Notes:

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