author: JOINER, Judge.

text:
    Derrick Lashawn THOMPSON v. STATE of Alabama.
    CR-10-0379.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 2011.

      Kimberly Marie Clenney, Montgomery, for appellant.
    Luther Strange, atty. gen., and. Madeline H. Lewis, asst. atty. gen., for appellee.
   JOINER, Judge.

Derrick Lashawn Thompson was convicted of two counts of unlawful distribution of a controlled substance within a three-mile radius of a school and a housing project, a violation of §§ 13A-12-211, -250, -270, Ala.Code 1975, and one count of unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975. The circuit court sentenced Thompson, as an habitual offender, to life in prison on each count, the sentences to be served concurrently. The circuit court imposed all fines, costs, and penalties mandated in drug cases. See §§ 13A-12-281, 15-23-17, and 36-18-7(a), Ala.Code 1975. Thompson did not file any posttrial motions. This appeal followed.

Thompson’s appellate counsel filed a motion to withdraw and a “no-merit” brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which counsel argued that the record revealed no meritorious issues upon which to base an appeal. Thompson was then given an opportunity to present pro se issues to his counsel and to this Court. Thompson submitted a nine-page “motion to enter issues for review,” which presented the following issues for this Court to consider: (1) whether his trial counsel was ineffective because he failed to call witnesses for the defense and to prepare a reasonable defense, failed to object to the admission of untested drugs, failed to file a motion for a new trial based upon Thompson’s “absents [sic] from trial, a missing link in the chain of custody, prosecutor’s misconduct,” and failed to file a notice of appeal; (2) whether Thompson is entitled to a new trial because of his involuntary absence from trial; and (3) whether Thompson is entitled to a new sentencing hearing because the circuit court “was bias[ed] and prejudiced] against [Thompson], and sentenced [him] without the presence of counsel, pre-sen-tence investigation report, application of probation, or without allowing [him] to present witness or speak on his behalf.”

Initially, we note that Thompson’s claim that his trial counsel was ineffective was not first raised in the circuit court and is, therefore, not preserved for review. It is well settled that

“ineffective-assistance-of-counsel claims cannot be presented on direct appeal when they have not been first presented to the trial court. Montgomery v. State, 781 So.2d 1007 (Ala.Crim.App.2000). Thus, ‘ “[a]n ineffeetive-assistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala. R.Crim. P., expires, in order for that claim to be properly preserved for review upon direct appeal.” ’ 781 So.2d at 1010, quoting Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996).”

Shouldis v. State, 953 So.2d 1275, 1285 (Ala.Crim.App.2006). “ ‘[W]e will not make exception to the rule that a claim for ineffective assistance of counsel may not be considered on appeal if it was not first presented to the trial court.’ ” Brown v. State, 701 So.2d 314, 319-20 (Ala.Crim.App.1997) (quoting Ex parte Jackson, 598 So.2d 895, 897 (Ala.1992), overruled on other grounds, Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996)).

We recognize that the Alabama Supreme Court in Ex parte Jefferson, 749 So.2d 406 (Ala.1999), created an exception to the preservation requirement when a defendant asserts a claim alleging ineffective assistance of counsel. The Court held that a general claim of ineffective assistance of counsel may be sufficient to preserve for appellate review a more specific claim of ineffective assistance of counsel “[w]here the record on appeal reflects that trial counsel’s performance was so deficient as to fall below an objective standard of reasonableness.” 749 So.2d at 408. In Montgomery v. State, 781 So.2d 1007 (Ala.Crim.App.2000), this Court recognized that the exception carved out by the Alabama Supreme Court in Jefferson would be applicable in “only a minute number of cases” — those cases where counsel’s error is “so blatant and clear on the face of the record that there [is] no room for interpretation.” 781 So.2d at 1011. We held in Montgomery that we would “not stretch to find ineffective assistance of counsel in cases where the claim has not been addressed by the trial court” and that, if the record on appeal does not reflect on its face that counsel’s performance was so deficient as to fall below an objective standard of reasonableness, the preservation exception carved out in Jefferson would not apply. 781 So.2d at 1011.

In this case, the claim of ineffective assistance of counsel raised by Thompson, which was not first presented to the circuit court, does not fall within the exception to the preservation requirement of Jefferson. The record does not reflect, on its face, that his counsel’s performance was so deficient as to fall below an objective standard of reasonableness. Therefore, Thompson’s claim is not properly before this Court for review. See, e.g., Flowers v. State, 799 So.2d 966 (Ala.Crim.App.2000); Montgomery, supra.

Thompson also contends that he is entitled to a new trial because, he says, he was involuntarily absent from trial. This argument, however, is without merit.

This Court has held:

“A trial court does not commit error in trying a defendant in his absence where that defendant knows the date of the trial and simply fails to appear, and there is no evidence suggesting that the defendant was involuntarily absent. United States v. Schocket, 753 F.2d 336, 339-340 (4th Cir.1985). A defendant may not unilaterally set the time or circumstances of his trial, see United States v. Bentvena, 319 F.2d 916 (2d Cir.), sub nom. Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); rather, the defendant bears the burden of justifying his absence from a known proceeding against him.’ United States v. Sanchez, 790 F.2d 245, 249 (2d Cir.1986) (emphasis in [Sanchez ]). An acknowledgment from defense counsel that there is no evidence of the whereabouts of his client may support the conclusion of the trial judge that the accused has willfully absented himself without a reason. Sanchez, 790 F.2d at 250. See generally 21A Am.Jur.2d Criminal Law §§ 698-699 (1981).”

Gulledge v. State, 526 So.2d 654, 656-57 (Ala.Crim.App.1988). See also Wade v. State, 497 So.2d 593, 595 (Ala.Crim.App.1986); Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965).

Here, the record shows that Thompson’s trial began on May 11, 2010, and that both Thompson and his trial counsel were present in the courtroom for voir dire. After voir dire, the circuit court informed both Thompson and the jury that it was “not going to start trying the case [that] afternoon” and that the trial would resume “in the morning at 9:00 o’clock.” The next morning the following exchange occurred:

“[Thompson’s trial counsel]: Judge, at this time I would like the record to properly reflect [Thompson] has failed to appear at 9:40 [a.m.]. I would proffer to the Court that I have made contact with him notifying him as well as the Court in open court declaring that he needed to be back here at 9:00 o’clock to commence with trial.
“[The Court]: Well, the Rules of Criminal Procedure guarantee the Defendant the right to be present at every stage of his or her trial, but there is a waiver. Rule 9.1 talks about — Rule 9 and Rule 9.1 talk about waiver of the right to be present for disruptive behavior and the rule applies unless there’s a clear and unequivocal waiver of the right of the Defendant to be present, but that right can be implied as well.
“So before we went on the record this morning when I was asking where your client was, correct me if I’m wrong, but you told me you’ve had conversation with him this morning.
“[Thompson’s trial counsel]: Judge, approximately 20 minutes till 9:00 o’clock, the hour set for this trial, I did have a telephone conversation with him.
“[The Court]: Well, there is precedent for the court taking [Thompson’s] failure to appear, especially after the jury was struck yesterday and sworn, and I was clear and you’ve had conversation with him this morning and you were clear, I don’t think there’s any reasonable conclusion that I can draw from what’s laid before me other than this is a waiver of his right to be present.”

(R. 23-27.)

The record clearly establishes that Thompson was present when the circuit court told him that his trial would resume at 9:00 a.m. the following morning, and he failed to appear when his trial resumed the following morning. Furthermore, Thompson did not provide any evidence suggesting that his absence from trial was involuntary. The circuit court, therefore, did not commit error in trying Thompson in his absence because Thompson knew the date of the trial, failed to appear, and provided no evidence suggesting that his absence was involuntary.

Accordingly, there is no basis to support the reversal of Thompson’s convictions and sentences with regard to issues (1) and (2) — that his trial counsel was ineffective and that he was involuntarily absent from trial.

This Court, however, noticed a potentially meritorious issue with regard to Thompson’s sentencing hearing that warranted further briefing, specifically, whether the circuit court correctly followed the procedures set forth in Rule 26.9(b), Ala. R.Crim. P., when it did not allow Thompson to make a statement on his own behalf before it imposed sentences of three concurrent terms of life in prison. On June 17, 2011, this Court issued an order granting Thompson’s appellate counsel’s motion to withdraw, appointing Thompson new appellate counsel, and ordering Thompson’s new appellate counsel to file a brief addressing the issue noticed by this Court.

Complying with this Court’s order, Thompson’s new appellate counsel timely filed a brief addressing the issue. In his brief, Thompson argues that the circuit court erred because, he says, it failed to follow the procedures set forth in Rule 26.9(b), Ala. R.Crim.App., “when it did not allow [Thompson] to make a statement on his own behalf before it imposed a sentence of a term of life in prison,” “when it did not state that a credit [would] be allowed on the sentence ... for time during which [Thompson had] been incarcerated,” and “when it did not explain to [Thompson] the terms of the sentence.”

The State contends that Thompson failed to preserve his argument for review because, it says, “Thompson failed to challenge this alleged error in an objection before the [circuit] court or in a posttrial motion.” This Court, however, has held that “the requirement that the defendant be afforded the opportunity to speak on his or her behalf at the sentencing hearing [is an] exception[ ] to the general preservation rule and [is] required to afford a defendant the minimal due process.” Banks v. State, 51 So.3d 386, 392 (Ala.Crim.App.2010). Thus, this issue is properly before this Court for review.

Rule 26.9(b)(1), Ala. R.Crim. P., provides that, in pronouncing the sentence, the circuit court must “[a]fford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence.” In Banks, 51 So.3d at 393, this Court noted:

“[Regarding the requirement of an allo-cution, Ex parte Anderson, 434 So.2d 737 (Ala.1983), and the cases following it hold that when the lack of an allocution or the waiver of allocution is raised on direct appeal remand is required because a sentence without an allocution is erroneous. See Davis v. State, 747 So.2d 921, 925 (Ala.Crim.App.1999); Newton v. State, 673 So.2d 799, 800-01 (Ala.Crim.App.1995); Burks v. State, 600 So.2d 374, 382-83 (Ala.Crim.App.1991); Duncan v. State, 587 So.2d 1260, 1264 (Ala.Crim.App.1991); Cline v. State, 571 So.2d 368, 372 (Ala.Crim.App.1990); Maul v. State, 531 So.2d 35, 36 (Ala.Crim.App.1988). See also Ebens v. State, 518 So.2d 1264, 1269 (Aa.Crim.App.1986); Oliver v. State, 25 Ala.App. 34, 34, 140 So. 180, 181 (1932) (wherein the court noted that ‘to constitute a valid judgment!, the fact that the defendant was asked if he had anything to say why the sentence of law should not be pronounced upon him] must appear in the minute entry of the judgment’). We note that in Shaw v. State, [949 So.2d 184 (Ala.Crim.App.2006) ], this Court recognized and reiterated that on direct appeal, when the issue of the lack of an allocution or a waiver of an allocution is raised, the case is to be remanded. 949 So.2d at 187. Rule 26.9(b)(l)[, Aa. R.Crim. P.,] also provides that in pronouncing the sentence, the trial judge must ‘[a]fford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence.’ The Committee Comments following Rule 26 state that a defendant is entitled to allocution, regardless of the gravity of the sentence imposed. See Rule 26.9, Aa. R.Crim. P., Committee Comments.”

Here, the record shows that the circuit court, without affording Thompson an opportunity to make a statement in his own behalf, stated:

“Mr. Thompson, I’m going to sentence you to three life sentences concurrent. You know, somewhere along the way you’ve got to get it. You never got it and you didn’t want to get it. It just blows my mind that you just keep doing what you’re doing and then come up here and start your trial and run off. I don’t have much sympathy for you frankly. That’s my sentence.”

(R. 184-85.)

Because Thompson was not afforded an opportunity to speak in his own behalf before the circuit court imposed sentence, this Court is compelled to reverse the sentence and to remand this cause to the circuit court for that court to resentence Thompson. On remand the circuit court shall conduct a sentencing hearing in which a proper allocution is provided pursuant to Rule 26.9(b), Ala. R.Crim. P. The circuit court is directed to make a return to this Court showing compliance with these instructions within 49 days from the date of this opinion. The return to remand shall include a transcript of the sentencing hearing and copies of documents, if any, relied upon by the circuit court in imposing Thompson’s sentences.

Thompson’s convictions for two counts of unlawful distribution of a controlled substance within a three-mile radius of a school and a housing project and one count of unlawful possession of a controlled substance are due to be affirmed; for the foregoing reasons, his sentences, however, are reversed, and the case is remanded for resentencing.

AFFIRMED AS TO CONVICTIONS; REVERSED AS TO SENTENCES; AND REMANDED WITH INSTRUCTIONS.

WELCH, P.J., and WINDOM, KELLUM, and BURKE, JJ., concur.

      . In light of this Court’s holding it is unnecessary to address Thompson's remaining issues with regard to the circuit court's alleged errors during the sentencing hearing — that the circuit court "did not state that a credit will be allowed on the sentence ... for time during which [Thompson had] been incarcerated” and "did not explain to [Thompson] the terms of the sentence.”

       Note from the reporter of decisions: On March 16, 2012, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    Willie GRACIE v. STATE of Alabama.
    CR-10-0596.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.
    Rehearing Denied Jan. 27, 2012.
    Certiorari Denied April 6, 2012 Alabama Supreme Court 1110564.

      William Anderson Ward, Linden, for appellant.
    Luther Strange, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for ap-pellee.
   KELLUM, Judge.

The appellant, Willie Gracie, was convicted of one count of first-degree robbery, a violation of § 13A-8-41, Ala.Code 1975. The circuit court sentenced Gracie as a habitual felony offender to 25 years’ imprisonment and ordered Gracie to pay $355 in restitution and all costs. This appeal followed.

The record on appeal indicates the following pertinent facts. On the night of November 17, 2008, Eugene Raby, the clerk at the Diamond Gasoline Service station in Demopolis, was robbed at gunpoint. Raby testified that the robber was a black male wearing a ski mask and a black coat that had a hood with brown fur that was pulled over his head. The robber drew a handgun and demanded money from the cash register. Raby said that he gave the robber approximately $200. After getting the money, the robber ran out of the store and in the direction of a car wash down the street from the Diamond Gasoline station. Raby telephoned 911 emergency assistance.

Shortly before the robbery, Gracie had entered the Diamond Gasoline station to purchase a telephone card. Raby testified that he recognized Gracie because Gracie’s mother owned the car wash adjacent to the Diamond Gasoline station and, according to Raby, Gracie came inside the station almost every day to purchase something. Raby reviewed photographs taken from the surveillance video-camera recording from that day and testified that the jacket worn by Gracie while he was in the store was very similar, if not identical, to the jacket worn by the robber.

Detective Sergeant Tim Soronen of the Demopolis Police Department traveled to the Diamond Gasoline station after receiving a 911 dispatch that the store had been robbed. Detective Soronen reviewed the surveillance tape and observed that the robber was wearing a black coat with fur around the hood and that Gracie, when he entered the store, was wearing a jacket that was identical to the jacket worn by the robber.

Detective Soronen left the store and drove in the direction Raby said the robber had run and drove through the parking lot of the Red Carpet Inn motel. In the parking lot, Detective Soronen observed a white GMC truck in which someone was crouched down. Detective Soro-nen approached the vehicle and saw Gracie using a cellular telephone; Detective Soro-nen drew his firearm and demanded that Gracie get out of the vehicle. Once more officers arrived on the scene, Gracie was detained. In the backseat of the truck, Detective Soronen found the jacket that the robber in the surveillance video had appeared to be wearing. A ski mask was also recovered from the floorboard of the front passenger seat. Detective Soronen seized the coat and the ski mask, along with Gracie’s cellular telephone and approximately $180 in cash that was on his person.

Detective Soronen testified that Gracie told him that he was at the motel with someone; however, when Detective Soro-nen asked the residents of the three rooms adjacent to Gracie’s parking space whether they were with Gracie, all three responded that they were not. Detective Soronen also learned from the manager at the motel that Gracie was not a resident.

Gracie was transported to the Demopolis police station and subsequently placed under arrest. Gracie declined to make a statement after police advised him of his Miranda rights. Detective Soronen then conducted a warrantless search of the call log and the text messages contained in Gracie’s cellular telephone in order to find evidence of accomplice participation. Detective Soronen found the following text message in the cellular phone: “0 dats wats up am gone c can I make it home I just made so much money am scared all I c is da police am sitting n da truck watching tem but dats wats up ttyt lol.” (C. 83, 84; R. 69-70.)

Gracie’s sole contention on appeal is that the circuit court erroneously denied his motion to suppress the text message seized pursuant to Detective Soronen’s search of his cellular telephone. Specifically, Gracie contends that he had a reasonable expectation of privacy in the text messages contained in his cellular telephone and that Detective Soronen’s war-rantless search violated Fourth Amendment principles.

“This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1208 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).” State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App. 2004). In the instant case, the facts are uncontested; the only issue is the circuit court’s application of the law to those facts. Therefore, this Court affords the circuit court’s ruling no presumption of correctness.

It is well settled that warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. State v. Mitchell, 722 So.2d 814, 820 (Ala.Crim.App.1998); Chevere v. State, 607 So.2d 361, 368 (Ala.Crim.App.1992). These exceptions are: (1) plain view; (2) consent; (3) search incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Baird v. State, 849 So.2d 223, 229-230 (Ala.Crim.App.2002); Rokitski v. State, 715 So.2d 859, 861 (Ala.Crim.App.1997).

Although the evidence that Detective Soronen “searched” Gracie’s cellular telephone after Gracie was placed under arrest is undisputed, Gracie contends that the warrantless search of his telephone exceeded the scope of searches allowed under the search-incident-to-arrest exception of the Fourth Amendment warrant requirement. Whether a police officer may conduct a warrantless search of a suspect’s cellular telephone for incriminating evidence in the form of call logs or text messages pursuant to a lawful arrest is an issue of first impression in this State. Because our research reveals no Alabama caselaw addressing the specific issue before us today, we have looked to other jurisdictions for guidance.

In People v. Diaz, 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501 (Cal.2011), the defendant was arrested following a “controlled buy” of Ecstasy, a controlled substance. In addition to six tablets of Ecstasy, the arresting officer found a cellular telephone on the defendant’s person that was subsequently seized and placed with the other evidence. After interviewing the defendant, the arresting officer looked at the text-message folder in the cellular telephone and discovered an incriminating message regarding the sale of Ecstasy. The defendant moved to suppress the text message, arguing that the warrantless search of his cellular telephone violated the Fourth Amendment; the trial court denied the motion.

On appeal, the California Supreme Court addressed the issue whether the Fourth Amendment permitted law-enforcement officers to conduct a warrant-less search of the text-message folder of a cellular telephone taken from Diaz following his arrest. The California court noted that resolution of this issue depended principally on three decisions of the United States Supreme Court: United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

The Diaz court noted that in Robinson the United States Supreme Court upheld the warrantless search of a package found in the defendant’s coat following a lawful arrest for driving while his driver’s license was revoked. The Supreme Court held that the warrantless search of the package was valid under the Fourth Amendment as a search incident to a lawful custodial arrest. 51 Cal.4th at 91, 119 Cal.Rptr.3d 105, 244 P.3d at 504. Likewise, in Edwards, the Supreme Court upheld the war-rantless seizure and subsequent search of the clothing worn by a defendant at the time of his lawful arrest to determine if the defendant’s clothing contained paint chips matching those from the window of a building he was suspected of attempting to break into, again holding that the search was incident to a lawful arrest, even though a substantial period had elapsed between the arrest and the subsequent taking of the defendant’s property for use as evidence. 51 Cal.4th at 91, 119 Cal.Rptr.3d 105, 244 P.3d at 504.

The Diaz court then looked to Chadwick, determining that the United States Supreme Court had stepped back from its broader holding in Edwards. The court noted that in Chadwick the United States Supreme Court rejected an argument that the warrantless search of a double-locked footlocker found in the trunk of a car was incident to a lawful arrest. The court noted that in Chadwick the Supreme Court reaffirmed “the principle that, because of ‘[t]he potential dangers lurking in all custodial arrests,’ police may conduct a warrantless search incident to arrest ‘whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence.’ ” 51 Cal.4th at 92,119 Cal.Rptr.3d 105, 244 P.3d at 505 (quoting Chadwick, 433 U.S. at 14). Nevertheless, the Diaz court explained, the Supreme Court held in Chadwick that “ ‘warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the “search is remote in time or place from the arrest,” [citation], or no exigency exists.’ ” 51 Cal.4th at 92, 119 Cal.Rptr.3d 105, 244 P.3d at 505.

Explaining why the Supreme Court’s decision in Chadwick did not conflict with its decisions in Robinson and Edwards, the Diaz court noted the warrantless searches in Robinson and Edwards involved searches “ ‘of the person’ rather than searches ‘of possessions within an arres-tee’s immediate control.’” 51 Cal.4th at 92, 119 Cal.Rptr.3d 105, 244 P.3d at 505 (quoting Chadwick, 433 U.S. at 16 n. 10). “The former searches, the court explained [in Chadwick ], are ‘justified by’ the ‘reduced expectations of privacy caused by the arrest’; the latter are not. (Ibid.) Thus, the defendants’ ‘privacy interest in the contents of the footlocker was not eliminated simply because they were under arrest.’ (Ibid.).” 51 Cal.4th at 92, 119 Cal.Rptr.3d 105, 244 P.3d at 505.

After thoroughly examining the holdings in Robinson, Edwards, and Chadwick, the Diaz court then focused on the issue under consideration:

“Under these decisions, the key question in this case is whether defendant’s cell phone was ‘personal property ... immediately associated with [his] person’ (Chadwick, supra, 433 U.S. at p. 15, 97 S.Ct. 2476) like the cigarette package in Robinson and the clothes in Edwards. If it was, then the delayed warrantless search was a valid search incident to defendant’s lawful custodial arrest. If it was not, then the search, because it was ‘ “remote in time [and] place from the arrest,” ’ ‘cannot be justified as incident to that arrest’ unless an ‘exigency existed].’ (Chadwick, supra, at p. 15, 97 S.Ct. 2476.)
“We hold that the cell phone was ‘immediately associated with [defendant’s] person’ (Chadwick, supra, 433 U.S. at p. 15, 97 S.Ct. 2476), and that the warrant-less search of the cell phone therefore was valid. As the People explain, the cell phone ‘was an item [of personal property] on [defendant’s] person at the time of his arrest and during the administrative processing at the police station.’ In this regard, it was like the clothing taken from the defendant in Edwards and the cigarette package taken from the defendant’s coat pocket in Robinson, and it was unlike the footlocker in Chadwick, which was separate from the defendants’ persons and was merely within the ‘area’ of their ‘ “immediate control.” ’ (Chadwick, supra, 433 U.S. at p. 15, 97 S.Ct. 2476.)”

People v. Diaz, 51 Cal.4th at 93, 119 Cal.Rptr.3d 105, 244 P.3d at 506 (footnote omitted).

In addition to California, other jurisdictions have also held that a warrantless search of a defendant’s cellular telephone following the defendant’s arrest did not violate Fourth Amendment principles. See United States v. Murphy, 552 F.3d 405, 411-12 (4th Cir.2009); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.2007); United States v. Santillan, 571 F.Supp.2d 1093, 1102 (D.Ariz.2008); United States v. Deans, 549 F.Supp.2d 1085, 1093-94 (D.Minn.2008); Fawdry v. State, 70 So.3d 626, 630 (Fla.Dist.Ct.App.2011); Smallwood v. State, 61 So.3d 448 (Fla.Dist.Ct.App.2011); Hawkins v. State, 307 Ga.App. 253, 704 S.E.2d 886, 892 (2010) (all holding that the warrantless search of the contents of a cellular telephone was a valid search incident to arrest).

Gracie urges this Court to reject the holdings of the jurisdictions cited above and adopt instead the holding of the Ohio Supreme Court in State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949 (2009). In Smith, the Ohio Supreme Court held that “because a person has a high expectation of privacy in a cell phone’s contents,” police, after seizing a cell phone from an arrestee’s person, “must ... obtain a warrant before intruding into the phone’s contents.” 920 N.E.2d at 955. In so holding, the Ohio Supreme Court rejected the reasoning of a line of federal cases finding a cellular telephone is a “container” subject to search upon arrest.

“The state argues that we should ... affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981), 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768, n. 4. One such example is a cigarette package containing drugs found in a person’s pocket, as in United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.
“We acknowledge that some federal courts have likened electronic devices to closed containers. See, e.g., United States v. Chan (N.D.Cal.1993), 830 F.Supp. 531, 534 (finding that a pager is analogous to a closed container), United States v. Ortiz (C.A.71996), 84 F.3d 977, 984 (following Chan in holding that a pager is a closed container), United States v. David (D.Nev.1991), 756 F.Supp. 1385, 1390 (finding a computer memo book ‘indistinguishable from any other closed container’). Each of these cases, however, fails to consider the Supreme Court’s definition of ‘container’ in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid 1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”

State v. Smith, 124 Ohio St.3d at 167-68, 920 N.E.2d at 954.

Our research reveals no other jurisdiction that holds, as Ohio does, that a cellular telephone may not be searched incident to a lawful arrest without first obtaining a warrant on the basis that the cellular telephone is not a closed container as defined in Belton. Indeed, other jurisdictions have found the holding in Smith unpersuasive. In Fawdry v. State, supra, the Florida District Court of Appeal rejected the holding in Smith, stating:

“We are unpersuaded by Smith. Although it may be true that a digital file itself is ‘wholly unlike any physical object found within a closed container,’ the information found within it is likely no different than information found within a printed physical copy of a digital file. Indeed, before the innovations made available in current cell phone technology, the information contained within digital files would have been contained in tangible copies and carried in closed containers. Digital files and programs on cell phones have merely served as replacements for personal effects like address books, calendar books, photo albums, and file folders previously carried in a tangible form. Viewed in this light, the cell phone merely acts as a ease (i.e. closed container) containing these personal effects. When in tangible form, the aforementioned personal effects could clearly, be searched incident to arrest if found in a case carried on the suspect’s person or in a vehicle which the suspect occupied. See Savoie [v. State], 422 So.2d [308, 313-14 (Fla.1982) ]; see also Robinson, 414 U.S. at 235-36. Accordingly, a search of a digital version of these personal effects would be similarly permissible. After all, it is the information itself in which a person’s privacy interests lie. See Finley, 477 F.3d at 259 (explaining that although the defendant’s employer owned the telephone, the defendant still ‘had a reasonable expectation of privacy in the call records and text messages on the cell phone’). Accordingly, a distinction based upon the manner in which that information is stored is unwarranted.”

Fawdry, 70 So.3d at 630. See also Smallwood v. State, 61 So.3d at 458-59 (recognizing that the holding in Smith that a cellular telephone may never be searched under the search-incident-to-arrest warrant requirement appears to be in contravention of existing United States Supreme Court caselaw); People v. Diaz, 51 Cal.4th at 101, 119 Cal.Rptr.3d 105, 244 P.3d at 511 n. 17 (noting the Ohio court’s focus on the extent of the arrestee’s expectation of privacy is inconsistent with the decisions of the United States Supreme Court).

We agree with the majority of jurisdictions surveyed that a warrantless search of a defendant’s cellular telephone following his arrest does not violate Fourth Amendment principles; we are not persuaded by the rationale in Smith that a cellular telephone may not be searched incident to a lawful arrest without first obtaining a warrant because the cellular telephone is not a container. In the instant case, the record indicates that Detective Soronen saw Gracie using a cellular telephone after the robbery. After placing Gracie under arrest, Detective Soronen searched the call log and text messages contained in Gracie’s cellular telephone to determine if Gracie had an accomplice. The cellular telephone was immediately associated with Gracie’s person, and pursuant to the decision of the United States Supreme Court in Robinson, Detective So-ronen was permitted to inspect the cellular telephone. 414 U.S. at 236. Accordingly, the warrantless search of Gracie’s cellular telephone following Gracie’s arrest did not violate Fourth Amendment principles, and the circuit court did not err in denying Gracie’s motion to suppress the text message seized pursuant to Detective Soro-nen’s search of Gracie’s cellular telephone.

Furthermore, any error in the search of Gracie’s cellular telephone, the seizure of the text message, and the subsequent admission of that text message into evidence at trial was harmless. The harmless-error rule provides, in pertinent part:

“No judgment may be reversed or set aside ... on the ground of ... improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Rule 45, Ala. R.App. P.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that before a federal constitutional error can be held to be harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt. In Ex parte Crymes, 630 So.2d 125 (Ala.1993), the Alabama Supreme Court explained:

“In determining whether the admission of improper testimony is reversible error, this Court has stated that the reviewing court must determine whether the ‘improper admission of the evidence ... might have adversely affected the defendant’s right to a fair trial,’ and before the reviewing court can affirm a judgment based upon the ‘harmless error’ rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.”

630 So.2d at 126. See also Ex parte Greathouse, 624 So.2d 208, 210 (Ala.1993) (holding that the proper harmless-error inquiry-asks — absent the improperly introduced evidence, “is it clear beyond reasonable doubt that the jury would have returned a verdict of guilty?”).

The jury heard testimony that Gracie entered the gas station to purchase a telephone calling card shortly before the armed robbery occurred. Raby, who was working at the store when Gracie made his purchase and later when the robber entered the store, testified that the jackets worn by Gracie and the robber were very similar, if not identical. Raby also said that the robber wore a ski mask and that he took approximately $200. Detective So-ronen testified that he responded to the dispatch of the robbery and located Gracie crouching down in white GMC truck not far from the scene of the robbery. Detective Soronen found in the backseat a jacket that appeared to be the jacket the robber had been wearing when he entered the gas station. A ski mask was also found in the floorboard of the front passenger seat. Approximately $180 was found on Gracie’s person. Finally, the jury saw the surveillance video that showed both Gracie visiting the store earlier and the armed robbery that occurred shortly thereafter.

Given the evidence presented at trial, even if we were to conclude that Detective Soronen violated Gracie’s Fourth Amendment rights by conducting a warrantless search of his cellular telephone and, thus, that the admission of the text message seized pursuant to that illegal search was inadmissible at trial, we would conclude that the circuit court’s denial of Gracie’s motion to suppress admission of the text message did not affect the outcome of the trial or otherwise prejudice a substantial right of Gracie. See Crymes, 630 So.2d at 126. Moreover, based on our review of the record, it is “clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” regardless of the trial court’s admission of the text message into evidence at trial. Greathouse, 624 So.2d at 210. See also Chapman, supra. Therefore, any error on the part of the trial court would have been harmless, and no basis for reversal exists as to this claim.

Based on the foregoing, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

WELCH, P.J., and WINDOM, BURKE, and JOINER, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Gracie’s cellular telephone was not password protected.

      ."TTYT” and "LOL” are colloquial shorthand abbreviations commonly used in text messaging. The former is shorthand for, "talk to you tomorrow.” The latter is shorthand for, "laugh out loud" — an indication to the reader that the sender is laughing.


author: POLEN, J.

text:
    Pharaoh NSHAKA, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-2109, 4D09-2110, 4D09-2111.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Rehearing Denied May 23, 2012.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Pharaoh Nshaka, appeals the trial court’s final order imposing judgment of conviction of burglary and the trial court’s final order imposing sentence as to three separate cases which were consolidated on appeal. Nshaka specifically appeals the trial court’s denial of his motion for judgment of acquittal, the trial court’s denial of his motion for mistrial, the trial court’s instruction to the jury regarding inferences that may be drawn from proof of possession, the trial court’s denial of his motion in limine, and the trial court’s denial of his motion to suppress physical evidence. We agree with Nshaka’s assertions in part and disagree in part. While we affirm the trial court’s orders denying the motions for judgment of acquittal, mistrial, and suppression, we reverse on the issues regarding the jury instruction and the denial of Nshaka’s motion in limine. As a result, we remand this case for retrial.

A vehicle burglary occurred outside a daycare facility. The vehicle, a black Ford Expedition, was left unlocked by the owner. The owner left her handbag on the seat of the vehicle, which contained her license, bank card, and cash. Around the time of the burglary, an eyewitness spotted Nshaka’s vehicle, a white Ford Taurus, parked at the daycare facility and documented the make, model, and license plate number of the vehicle. The eyewitness also noticed that the person in the Taurus was wearing a baseball cap and had masculine features. The vehicle was traced to 5900 Hayes Street — an address which was linked to Nshaka.

Officers later attached a tracking device to Nshaka’s vehicle and traced him to a different address on 59th Avenue. Officers then placed Nshaka under surveillance for three days, during which they witnessed him coming and going from that address. Officers initiated a traffic stop to attempt to obtain consent from Nshaka to search the residence. When officers stopped Nshaka and began to speak with him, he advised them that he lived at 5900 Hayes, as his driver’s license showed, but that he had keys to the 59th Avenue home and they could perform a search of that location.

When officers arrived at the address, they knocked, announced themselves, and performed a cursory search when nobody responded. After about two to three minutes of a cursory search, the officers terminated the search, determining no one was there. During the search, officers noticed items in plain view, including several purses stacked up and a bill with Nshaka’s name on it. The lead detective then obtained a search warrant for the address. During their search, officers found boxes filled with paperwork in a closet. The paperwork included bills dated from the previous five months, all of which were addressed to Nshaka at the 59th Avenue address. In a child’s bedroom during the search, officers discovered another box that contained documents and other items which were cataloged in a very specific and organized manner. The box also contained the credit card and driver’s license of the victim from the incident which is the subject of this appeal.

Before evidence was introduced at trial, Nshaka made a motion in limine to exclude evidence of other burglaries, including: a pair of latex gloves found in the house during the search; identification; mentions of other victims; or credit cards found. The trial court denied the motion in limine and photographs of the gloves were admitted into evidence. At trial, one of the officers testified that he was searching for evidence in some vehicle burglaries and the defense moved for a mistrial. The court denied the motion. Additionally, later in the trial during a sidebar, a juror told the judge that she overheard an officer on his phone mentioning burglaries and how they were not supposed to testify as to other burglaries. The juror did not mention the conversation she overheard to any other members of the jury. At this point, Nshaka, again, moved for a mistrial. The court denied the motion and excused the juror, appointing an alternate in her place. At the close of the State’s case, Nshaka moved for judgment of acquittal, explaining that the State was unable to prove that he committed burglary. The court determined there was sufficient evidence to submit the matter to a jury and denied the motion for judgment of acquittal.

During the charge conference, Nshaka objected to the court’s statement that there was proof of possession by an accused of recently stolen property by means of a burglary. The trial court overruled the objection without prejudice. The court instructed the jury as to the inferences given by proof of possession of recently stolen property. The defense objected to the jury instruction and the trial court overruled the objection. The jury returned a verdict of guilty as to both counts. Nshaka entered an open plea as to the remaining two cases before the court. Those cases involved: burglary of a conveyance and grand theft; and eight counts of criminal use of personal identification information and one count of unauthorized possession of identification card or driver’s license. Nshaka filed a motion to suppress physical evidence. The court denied the motion, but reserved Nshaka’s right to appeal the ruling.

A sentencing hearing was held and Nshaka was found to be a habitual offender and was sentenced three times — one sentence for each of the three consolidated cases on appeal. Nshaka was sentenced to ten years with credit for 975 days time served for counts I and II of the case involving the burglary at the daycare. For a nine count case involving misuse of another’s personal identity, Nshaka was found to be a habitual offender and was sentenced to five years with credit for 975 days time served, to be served concurrently with the sentences of the other two cases. In the third case, the trial court found Nshaka to be a habitual offender and sentenced him to ten years, to be served consecutively with the ten year sentence from the trial. This consolidated appeal followed.

Taking each issue in turn, we begin by analyzing those points on which we agree with Nshaka. Nshaka argues that the trial court erred when it instructed the jury that “proof of possession by an accused of property recently stolen by means of a burglary, unless satisfactorily explained, may justify a conviction of burglary.” An appellate court reviews jury instructions using the abuse of discretion standard of review. Zama v. State, 54 So.3d 1075, 1077 (Fla. 4th DCA 2011).

Nshaka argues that the jury instruction was harmful because it identified him as a participant in the burglary. The State argues that sufficient evidence was presented to show that Nshaka had control over the premises, allowing an inference to be drawn. The Fifth District held in King v. State, 431 So.2d 272 (Fla. 5th DCA 1983), that the same instruction as the one given in this case was improper because the “appellant’s possession was not ‘personal and exclusive.’ ” Id. at 273. Similar to King, the evidence here also did not show “that the appellant ever really possessed the goods to the extent that he exercised any dominion and control over them, let alone exclusive dominion and control.” Id. at 273.

This court relied on King in the past to show that a jury instruction regarding inference of burglary due to possession is proper only if possession is exclusive. Ward v. State, 40 So.3d 854, 856 (Fla. 4th DCA 2010). Here, no proof was presented that Nshaka had personal and exclusive dominion and control over the stolen property that was found during the officers’ search of the premises because a three month time period lapsed between the date of the burglary and the search of the home. We hold that a three month lapse in time is not recent, so as to fit into the trial court’s instruction regarding “recently stolen” items. As a result, Nshaka was free to argue that the items were not exclusively his, making an instruction of inference to the jury improper. Therefore, the trial court erred in giving this jury instruction and we reverse as to this point on appeal.

Next, Nshaka argues that the trial court erred in allowing latex gloves to be entered into evidence when the gloves were found eighty days after the date of the burglary, removing the seizure too far from the incident. An appellate court reviews a trial court’s ruling on a motion in limine for an abuse of discretion. Mackey v. State, 55 So.3d 606, 609 (Fla. 4th DCA 2011). The trial court’s discretion regarding admissibility of evidence is broad and its ruling will be disturbed only upon an abuse of discretion. Huhn v. State, 511 So.2d 583, 588 (Fla. 4th DCA 1987).

Relevant evidence is defined as that which tends “to prove or disprove a material fact.” § 90.401, Fla. Stat. (2011). In order to be admissible, evidence must be relevant. § 90.402, Fla. Stat. (2011). Relevant evidence is generally always admissible, except where “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2011). In a Second District Court of Appeal murder case, Green v. State, 27 So.3d 731 (Fla. 2d DCA 2010), the court found that evidence which was not connected to the charged offenses, nor the defendant, was too prejudicial to be admitted into evidence. Id. at 737-38. Failure to connect the evidence to the charges made the evidence irrelevant because it “did not tend to prove or disprove any material fact in controversy.” Id. at 738.

Here, while the State intended to introduce the gloves into evidence to show why there were no fingerprints on the victim’s vehicle, the State did not introduce evidence to show that those gloves were connected to that burglary charge, nor that the gloves were connected to Nshaka. Therefore, based on an instructive application of Green, the gloves should have not been entered into evidence because they did not tend to prove or disprove any material fact related to the precise charged offenses. We hold that the latex gloves were improperly admitted into evidence where their prejudicial effect outweighed their probative value.

In consideration of the two points above, we hold that the trial court erred in its jury instruction and denial of Nshaka’s motion in limine. Thus, we remand for a retrial.

Additionally, Nshaka argues that the State did not present enough evidence to create an inference of his guilt based on his possession of the stolen items from the burglary scenes and moved for judgment of acquittal. An appellate court reviews a motion for judgment of acquittal using the de novo standard of review. Salter v. State, 77 So.Sd 760, 762 (Fla. 4th DCA 2011). If a conviction is supported by competent, substantial evidence, the appellate court will not order a reversal. Id. It is the State’s burden to conclusively rebut all inferences made from the evidence by presenting evidence that contradicts the defendant’s version of the events. Wiley v. State, 60 So.3d 588, 591 (Fla. 4th DCA 2011). Once the State meets its burden, the jury then determines “whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.” Id. When a court is evaluating circumstantial evidence, it must find that the evidence leads “to a 'reasonable and moral certainty that the accused and no one else committed the offense charged.’ ” Brown v. State, 672 So.2d 648, 650 (Fla. 4th DCA 1996).

Section 810.02, Florida Statutes, provides that a burglary occurs when one enters “a dwelling, structure, or a conveyance with the intent to commit an offense therein.” § 810.02(l)(b)l., Fla. Stat. (2011). Here, a black Ford Expedition was left unlocked by the owner and a handbag remained on the seat of the vehicle, which contained her license, bank card, and cash. After an eyewitness statement, officers had a suspect, placed the suspect under surveillance, searched an address which the suspect was seen entering and leaving several times, and found items belonging to the burglary victim. Nshaka argues that the State did not prove that he entered the vehicle and that, while his vehicle was at the scene, nobody identified him as the driver. Nshaka also argues that no proof exists to support the notion that his possession of the stolen items was exclusive, which is necessary to draw an inference of guilt. The State contends that the presence of his vehicle at the crime scene, along with officers’ discovery of recently stolen property, was enough to infer that Nshaka committed the crime.

“[U]nexplained possession of recently stolen property is not only sufficient to support a theft conviction but when a burglary necessarily occurs as an adjunct, the inference of guilt from the unexplained possession of the recently stolen goods also supports a conviction for the burglary.” T.S.R. v. State, 596 So.2d 766, 767 (Fla. 5th DCA 1992). “[Possession of the stolen property must be exclusive for the State to be entitled to the inference.” Bronson v. State, 926 So.2d 480, 483 (Fla. 2d DCA 2006).

Mere possession of stolen property, without other evidence of guilt, is not to be regarded as prima facie evidence of larceny, robbery, receiving stolen property, or burglary. It must be shown that the possession of the defendant was exclusive, recent, and involved a distinct and conscious assertion of property. The meaning of the terms “exclusive” and “recent” will vary with the circumstances of each case.

Id. at 483-84 (emphasis in original) (quoting Scobee v. State, 488 So.2d 595, 598 (Fla. 1st DCA 1986)). The Second District also provides that the exclusive possession need not be “separate from all other persons” and, instead, may include “ ‘joint possession of two or more persons acting in concert.’ ” Id. at 484. The possession must also be personal and the State must be able to show that the suspect exercised dominion and control over the property. Id. Additionally, this court has held that possession requires “a conscious and substantial possession, as distinguished from a mere involuntary or superficial possession.” Garcia v. State, 899 So.2d 447, 451 (Fla. 4th DCA 2005).

This court, in Garcia, concluded “that the trial court erred in denying appellant’s motion for judgment of acquittal on ... burglary and theft counts and remand[ed][the] cause for appellant to be discharged.” 899 So.2d at 451. This court remanded the cause where the appellant was present in the vehicle where the stolen property was placed, but no proof existed as to whether he exercised dominion and control over it. Id. Here, the officers found boxes containing documents with Nshaka’s name on them, as well as the items stolen from the victim’s vehicle outside the daycare. The officers searched the 59th Avenue address after surveillance of Nshaka for several days, observing that only Nshaka was coming and going to and from the address. It was at that home — a home where no other individuals were seen — inside a child’s room, that the victim’s belongings were found. Furthermore, an eyewitness placed Nshaka’s vehicle at the scene of the crime and even recorded the license plate on his Ford Taurus. When the license plate was run by officers, Nshaka was identified as the owner.

The facts show that Nshaka was identified as being present at the scene of the incident at the time it occurred. The facts also support that Nshaka could have had exclusive possession and control of the home searched by officers. The victim’s belongings were retrieved from inside the home, with no explanation for Nshaka’s possession of those items. We, therefore, hold that, while a jury instruction on the subject of an inference was error by the trial court, its denial of the motion for judgment of acquittal was proper because there was sufficient circumstantial evidence to submit this case to a jury.

Nshaka also challenges the trial court’s denial of his motion to suppress evidence found inside the home on 59th Avenue. An appellate court reviews a motion to suppress using a mixed standard of review. Bryan v. State, 62 So.3d 1244, 1245 (Fla. 4th DCA 2011). The appellate court defers to the trial court’s findings regarding the facts and uses the de novo standard of review for legal conclusions. Id.

‘Warrantless searches ‘are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and delineated exceptions.’ ” Ferguson v. State, 58 So.3d 360, 363 (Fla. 4th DCA 2011). One exception to the warrant requirement is if officers obtain voluntary consent by one who has permission to search the premises. Id. The person whom gives consent may be a third party with “ ‘common authority over or other sufficient relationship to the premises or effects sought to be inspected.’ ” Id. Common authority exists where people have joint control over property for most purposes. Id. at 364 (citing United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). Where no actual authority exists, officers may rely on their reasonable beliefs that the person who gave them consent is a resident with control over the premises. Id.

Here, officers ran Nshaka’s license plate and received a return, including an address of 5900 Hayes. When Nshaka was placed under surveillance for about three days, officers traced him to the 59th Avenue address. Upon asking if they could search the address, Nshaka provided them with a house key and told them they could search. At the time they entered the premises, officers had Nsha-ka’s permission, supported by knowledge that he had a key to the premises and had been coming and going from that location for the nearly three days of surveillance. Once inside, officers saw, in plain view, utility bills with Nshaka’s name. Based on these facts, we hold that it was reasonable for officers to believe that Nshaka had dominion and control over the property and was able to give consent for a search of the premises. As such, the trial did not err in its denial of Nshaka’s motion to suppress evidence seized from the 59th Avenue address.

We hold that the trial court erroneously gave a jury instruction on inference of guilt and denied Nshaka’s motion in limine to exclude the latex gloves. Accordingly, we remand this case for retrial on the grounds with which we agree with Nsha-ka’s assertions. On retrial, we caution the attorneys and jurors, as they were previously cautioned, not to say anything about other burglaries.

Remanded for Retrial.

TAYLOR and HAZOURI, JJ., concur.

On Motion for Rehearing

Appellant, Pharaoh Nshaka, moved this court for a rehearing after this court remanded his case for retrial due to an erroneous jury instruction and the admission of improper evidence. We deny Nshaka’s motion for rehearing, but issue this supplemental opinion on the issue of resentenc-ing.

In his motion for rehearing, Nsha-ka argued that because his convictions were reversed by our decision to remand the case for retrial, the sentences imposed by the trial court should have been set aside. We agree. In Benitez v. State, 901 So.2d 935 (Fla. 4th DCA 2005), this court remanded a case “to vacate [the] conviction and resentence the defendant.” Id. at 937. If the record conclusively demonstrated that the same sentences would be imposed on retrial, Nshaka would not be entitled to resentencing. See Jones v. State, 901 So.2d 255, 257 (Fla. 4th DCA 2005). However, the record does not indicate as such, and as a result, Nshaka’s original sentence must be vacated and the trial court should resentence him on retrial if he is found guilty.

We deny the motion for rehearing, but direct the trial court to resentence Nshaka in accordance with the outcome of the retrial.

Rehearing Denied; Remanded, with Directions.


author: MAY, C.J.

text:
    Ancel PRATT, Jr., Appellant, v. Michael C. WEISS, D.O., Michael C. Weiss, D.O., P.A., Louis H. Isaacson, D.O., Louis H. Isaacson, D.O., P.A., Sterling Healthcare Group, Inc., Sterling Miami, Inc., Lauderdale Orthopaedic Surgeons, Michael C. Weiss, D.O., P.A., and FMC Hospital Ltd., a Florida Limited Partnership d/b/a Florida Medical Center, FMC Medical, Inc., f/k/a FMC Center Inc., d/b/a Florida Medical Center, Appellees.
    No. 4D10-4398.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.
    Linda A. Alley of Sheldon J. Schlesinger, P.A., Fort Lauderdale and Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.

      A. Candace Marcus and James C. Saw-ran of McIntosh, Sawran & Cartaya, P.A., Fort Lauderdale, for appellee.
   MAY, C.J.

This appeal challenges an attorney’s fees award, pursuant to a proposal for settlement/offer of judgment (“proposal”) in a medical malpractice action. The plaintiff, who prevailed against another defendant, appeals the fee award in favor of a defendant against whom he did not prevail. The plaintiff argues the fee award must be reversed because the proposal: (1) failed to apportion the offer between two separately named defendants; (2) was ambiguous; and (3) required the release of future unknown claims. The defendant responds that the plaintiff is simply nit-picking the proposal now that the plaintiff has lost his claim against this defendant. We find, as did the trial court, that the proposal complies with the requirements of section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442. We affirm.

In 1998, the plaintiff filed a medical malpractice action against multiple defendants, including FMC Hospital, Ltd., a Florida Limited Partnership d/b/a Florida Medical Center, and FMC Medical, Inc., f/k/a FMC Center Inc., d/b/a Florida Medical Center. The complaint alleged that these two entities “owned, operated, maintained, and controlled” Florida Medical Center. The plaintiff also alleged that FMC Hospital, Ltd. was a limited partnership, and that FMC Medical, Inc. was a general partner of Florida Medical Center.

The complaint alleged two claims (negligent hiring/retention and vicarious liability for the negligence of two doctors) against each of these defendants using exactly the same wording. The complaint further alleged that two doctors, who were also defendants in this suit, were “agents” or “apparent agents” of these organizations. While the complaint named the two hospital entities as defendants, each was alleged to be responsible for the negligence of a single entity, Florida Medical Center.

The two defendants, each of whom owned, operated, maintained, or controlled the “hospital,” submitted the proposal. The relevant provisions read:

DEFENDANT, FLORIDA MEDICAL CENTER’S, PROPOSAL FOR SETTLEMENT/OFFER OF JUDGMENT TO THE PLAINTIFF, AN-CEL PRATT, JR., INDIVIDUALLY
The Defendant(s), FMC HOSPITAL LTD., a Florida Limited Partnership d/b/a FLORIDA MEDICAL CENTER; FMC MEDICAL, INC. ⅞/a FMC CENTER, INC. d/b/a FLORIDA MEDICAL CENTER, by and through their undersigned counsel, and pursuant to Florida Statute § 768.79 and Fla. R. Civ. P. 1.442 state as follows:
The Party making this proposal are Defendants, FMC HOSPITAL LTD., a Florida Limited Partnership d/b/a FLORIDA MEDICAL CENTER; FMC MEDICAL, INC. fik/a FMC CENTER, INC. d/b/a FLORIDA MEDICAL CENTER....
1. This Proposal for Settlement is made in an attempt to resolve all pending matters between the Plaintiff and the named Defendants as noted above.
2. The relevant conditions of this Proposal for Settlement are that the lawsuit be settled, each Party to bear their own costs and attorneys’ fees....

(Emphasis added). The Proposal offered $10,000. The last paragraph stated:

This Proposal for Settlement includes all costs and attorneys’ fees incurred by Plaintiff in the prosecution of this case, and by making this Proposal for Settlement, the Defendants, FMC HOSPITAL LTD., a Florida Limited Partnership d/b/a FLORIDA MEDICAL CENTER; FMC MEDICAL, INC. Wa FMC CENTER, INC. d/b/a FLORIDA MEDICAL CENTER....

(Emphasis added).

The proposal required the plaintiff to sign “a full and complete General Release and Hold Harmless Agreement.” Although the body of the proposal stated that it would resolve “pending matters between the Plaintiff and the named Defendants,” the attached “Settlement Agreement, Release of All Claims Hold Harmless Agreement” required the plaintiff to release any “agents” of the two hospital defendants.

The Release and Hold Harmless Agreement (“agreement”) provided in relevant part:

[Plaintiff] does hereby fully and completely release, acquit and forever discharge FMC HOSPITAL LTD., a Florida Limited Partnership d/b/a FLORIDA MEDICAL CENTER; FMC MEDICAL, INC. fk/a FMC CENTER, INC. d/b/a FLORIDA MEDICAL CENTER, and their affiliates, successors, predecessors, subsidiaries, agents, employers, employees and/or servants, and any primary, excess, or reinsurance insurers (hereinafter “RELEASEES”) from any and all causes of action, claims, direct or indirect, rights, liabilities, and damages whatsoever, on behalf of ANCEL PRATT, JR., INDIVIDUALLY, including but not limited to [the above-styled case].
[H]ereby forever release, discharge and acquit the RELEASEES, and their ... professional associations ... from any and all claims, actions, causes of action, demands, payments, attorneys’ fees, benefits, rights, damages, costs, loss of service, liens, expenses, liabilities and compensation whatsoever which the [plaintiff] ever had, now has (or which may hereafter accrue) based upon the facts and circumstances relevant to the [plaintiff’s] Complaint ... against the RELEASEES.

(Emphasis in original).

The agreement provided for the plaintiff to hold harmless and indemnify the “re-leasees” as well as any “related entities responsible financially or otherwise ... from all costs, liens, losses, damages and expenses, including medical expenses which RELEASEES or their affiliates may or might sustain in the future as a result of the injuries and damages alleged by [the plaintiff].” The agreement ended by stating that: “This Release releases the RELEASEES from any future medical obligations and payments. This Release does not in any way release other named Defendants.” (Emphasis in original). The plaintiff did not accept the proposal.

The case proceeded to trial. The plaintiff and this defendant entered into a joint stipulation that the proper party in interest was FMC Hospital, Ltd., d/b/a Florida Medical Center. This stipulation was not in existence when the defendants made their proposal. The jury found in favor of this defendant, which then moved for attorney’s fees, pursuant to the proposal.

After two hearings and consideration of written memoranda, the trial court concluded the proposal was enforceable because it had been made by a single entity, the hospital, and was unambiguous. The trial court then entered a final judgment in favor of “Defendants, FMC HOSPITAL, LTD. d/b/a FLORIDA MEDICAL CENTER and FMC MEDICAL, INC. fik/a FMC CENTER, INC. d/b/a FLORIDA MEDICAL CENTER” for $426,580 in attorney’s fees and $6,000 in expert witness fees. (Emphasis added). The plaintiff now appeals the attorney’s fees judgment.

On appeal, the plaintiff continues to argue that the proposal is unenforceable for three reasons: (1) it failed to apportion the offer between two separately named defendants; (2) it was ambiguous; and (3) it required the release of future unknown claims. The defendants’ response is threefold: (1) the proposal did not have to apportion the offer because Florida Medical Center was the single hospital entity alleged to be responsible; (2) the proposal was unambiguous; and (3) the release did not require the relinquishment of future claims.

We have de novo review of orders awarding fees pursuant to proposals for settlement. Saenz v. Campos, 967 So.2d 1114, 1116 (Fla. 4th DCA 2007).

Florida Rule of Civil Procedure 1.442(c)(2)(B)-(D) “requires the proposal to ‘identify’ the claim or claims to be resolved, ‘state with particularity any relevant conditions, ‘state’ the total amount of the proposal, and ‘state with particularity’ the non-monetary terms of the proposal.” Id. (quoting Fla. R. Civ. P. 1.442(c)(2)(B)-(D)). Additionally, under rule 1.442(c)(3), “[a] proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.” Fla. R. Civ. P. 1.442(c)(3).

Settlement agreements “are to be interpreted by the same principles governing the interpretation of contracts.” Dorson v. Dorson, 393 So.2d 632, 633 (Fla. 4th DCA 1981). To determine the parties’ intent, we will look to the proposal as a whole, and construe it “ ‘according to its own clear and unambiguous terms.’ ” Id. (quoting Cueto v. John Allmand Boats, Inc., 334 So.2d 30, 32 (Fla. 3d DCA 1976)). Thus, the parties’ subjective intent “does not alter the meaning of the [contract].” Wallshein v. Shugarman, 50 So.3d 89, 90 (Fla. 4th DCA 2010).

Our supreme court has held that rule 1.442(c)(3) requires that “an offer from multiple plaintiffs must apportion the offer among the plaintiffs.” Dollar Rent a Car, Inc. v. Chang, 902 So.2d 869, 870 (Fla. 4th DCA 2005) (quoting Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278-79 (Fla.2003)). Here however the offer was made on behalf of the single hospital entity allegedly responsible. The release referred to the two companies that owned, controlled, or maintained the single hospital entity allegedly responsible.

As the defendants argue, they were treated as a single entity during the litigation. They were represented by the same lawyer, filed a single answer, and were listed as FMC Hospital, Ltd., a Florida Limited Partnership d/b/a Florida Medical Center on the verdict form. The singular nature of the entity is most evident in the parties’ ultimate agreement that FMC Hospital, Ltd. was the only proper defendant.

The plaintiff next argues the release was ambiguous because it required the plaintiff to release the hospital’s agents and the complaint alleged two physicians were agents of the hospital. We disagree.

The release specifically stated that acceptance would NOT release other named defendants. The two physicians were not encompassed in the release. Rather than create a latent ambiguity, the language provided for the release of only unnamed agents of the hospital. And, any suggestion that the release applied to future unknown claims is debunked by the language in the release that restricted future claims to “the injuries and damages alleged” by the plaintiff.

In sum, we find the defendants’ failure to apportion the offer did not run afoul of section 768.79, rule 1.442, or any case law interpreting those provisions. The agreement and release are not ambiguous, and did not require the release of future claims. We therefore affirm.

Affirmed.

GROSS and DAMOORGIAN, JJ., concur.


author: PER CURIAM.

text:
    Freddie LAWRENCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2291.
    District Court of Appeal of Florida, First District.
    May 22, 2012.
    Rehearing Denied Aug. 1, 2012.
    Freddie Lawrence, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.141(d)(5).

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    Carlos Ruben FLORES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-76.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Carlos Flores appeals his judgment and sentence for the crime of Lewd and Lascivious Molestation. Flores argues that: (1) the trial court improperly found that the victim was competent to testify; (2) his right to confrontation was violated by the trial court allowing the victim to testify by one-way closed circuit; (8) his right to a public trial was violated; and (4) the trial court erred by entering judgment and sentence for a crime not charged. We affirm, writing only to address Flores’ contention that the trial court erred when it found the victim competent to testify.

A determination of a child’s competency to testify is reviewed according to an abuse of discretion standard. Baker v. State, 674 So.2d 199, 200 (Fla. 4th DCA 1996) (citing Lloyd v. State, 524 So.2d 396 (Fla.1988)).

When the court is evaluating a child’s competency, it applies a two-part test, based upon the child’s: (1) intelligence and (2) sense of obligation to tell the truth. Lloyd, 524 So.2d at 400. Here, the trial court found the child witness Y.T. competent to testify after applying the proper two-part test in Lloyd. When questioned, Y.T. knew and articulated sufficient facts to demonstrate her intelligence. Baker, 674 So.2d at 200-01. Y.T. went beyond the facts in Baker, establishing that she remembered and articulated facts that occurred a year before the competency hearing. Y.T. also demonstrated that she could remember details in connection with what she had done on the day of the hearing, her favorite subject in school, her older sister’s age and that she was in a higher grade in school. She knew what country she was born in, where her uncle lived, and the place where the pertinent events occurred. Finally, Y.T. testified that she knew it was wrong to lie and that people get into trouble for lying.

We also find no merit to Flores’ assertion that inconsistencies in Y.T.’s testimony demonstrate her inability to differentiate reality from fantasy. While some inconsistencies existed in Y.T.’s testimony, like the inconsistencies in Lloyd, they were largely immaterial. Lloyd, 524 So.2d at 400.

On the record before us, we conclude that the trial judge did a thorough evaluation of Y.T., and we find no abuse of discretion in its conclusion that Y.T. was competent to testify.

Affirmed.

MAY, C.J., DAMOORGIAN and CONNER, JJ., concur.


author: WHATLEY, Judge.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Soundview Home Loan Trust 2006-WF2, Appellant, v. William WALDORF, a/k/a William D. Waldorf, Appellee.
    No. 2D11-1971.
    District Court of Appeal of Florida, Second District.
    June 22, 2012.
    Michael K. Winston and Dean A. Mo-rande of Carlton Fields, P.A., West Palm Beach, for Appellant.
    No appearance for Appellee.
   WHATLEY, Judge.

Deutsche Bank National Trust Company appeals the order dismissing its case to foreclose William Waldorf s mortgage with prejudice for failure to provide the court a summary final judgment package prior to the hearing on the Bank’s motion for summary judgment. We reverse and remand for further proceedings.

The Bank filed its foreclosure complaint in January 2008. Waldorf did not respond and assert any defenses, and a default was entered against him. Soon thereafter, he filed for bankruptcy. Approximately a year later, the bankruptcy was dismissed. The Bank then filed a motion for summary judgment with an affidavit of amounts due and owing in its foreclosure action. A hearing was scheduled for the motion, but the Bank requested that it be' cancelled. Pursuant to a case management conference in late 2010, on January 31, 2011, the trial court issued an order directing the Bank to schedule its motion for summary judgment within sixty days. The Bank complied. After the hearing, the trial court dismissed the Bank’s case with prejudice because the Bank failed to provide the court with a summary final judgment package prior to the hearing.

In Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), the supreme court set forth the following six-factor test to be used in determining whether a dismissal with prejudice is an appropriate response to an attorney’s behavior:

1) whether the attorneys’ disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

A trial court’s failure to consider these factors in determining whether dismissal is appropriate is a basis for remand for application of the factors. Ham v. Dunmire, 891 So.2d 492, 500 (Fla.2004).

Dismissing a case with prejudice is the ultimate sanction and should only be used in “those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993).
After considering [the Kozel ] factors, “if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id. Sanctions short of dismissing a case with prejudice are appropriate when the errors are made by the attorney and not the client. Am. Express Co. v. Hickey, 869 So.2d 694, 695 (Fla. 5th DCA 2004). Although no “magic words” are required when a court dismisses a case with prejudice, the court must find the conduct leading to the order was willful or constituted a deliberate disregard of the court’s directives. Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990).

Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81, 85-86 (Fla. 5th DCA 2012); see Ham, 891 So.2d at 499 (“It is imperative that trial courts strike the appropriate balance between the severity of the infraction and the impact of the sanction when exercising their discretion to discipline parties to an action.”).

We reverse the order of dismissal and remand for the trial court to consider the Kozel factors in determining what sanction, other than dismissal, is appropriate. Ham, 891 So.2d at 501 (reversing district court’s affirmance of trial court’s dismissal with prejudice for violation of discovery-orders because neither court applied Kozel factors and remanding to the district court to remand to the trial court “for a determination of what sanctions, short of dismissal, are appropriate for the discovery violations in this matter”).

Reversed and remanded.

NORTHCUTT and BLACK, JJ„ Concur.

      . A summary final judgment package is not required by the Florida Rules of Civil Procedure


text:
    Oreste DORRIELAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-203.
    District Court of Appeal of Florida, Fifth District.
    June 26, 2012.
    Rehearing and Rehearing En Banc Denied Aug. 13, 2012.
    Oreste Dorrielan, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Breedlove v. Singletary, 595 So.2d 8 (Fla.1992), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527(1995).

GRIFFIN, SAWAYA and MONACO, JJ., concur.