author: DAMOORGIAN, J.

text:
    Edward ALVARADO, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D07-1670, 4D07-2774.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

Edward Alvarado appeals his prison sentences emanating from his convictions for sexual battery on a child under twelve years of age and lewd and lascivious molestation. Alvarado argues that the trial court erred in sentencing him as a habitual violent felony offender on the ground that his prior felony conviction for aggravated battery on a pregnant woman did not qualify as a violent felony offense under section 775.084, Florida Statutes (2005). He next asserts that imposing habitual violent felony offender and dangerous sexual felony offender sanctions, pursuant to section 794.0115, Florida Statutes (2005), constitutes an improper double enhancement and violated his right to substantive due process. We affirm the trial court’s sentences and write only to address the first issue.

Alvarado was charged with aggravated battery on a pregnant woman in violation of section 784.045(l)(b), Florida Statutes (2004). In July 2004, he entered a no contest plea and was adjudicated guilty. In 2005, he was charged by information with two counts of sexual battery on a child under twelve years of age (Counts I and II), two counts of lewd and lascivious molestation (Counts III and IV), and one count of lewd and lascivious exhibition (Count V). The State also announced that it intended to seek habitual violent felony offender (HVFO) sanctions, pursuant to § 775.084, Florida Statutes (2005), and dangerous sexual felony offender (DSFO) sanctions, pursuant to § 794.0115, Florida Statutes (2005).

After a jury trial on the 2005 charges, Alvarado was found guilty. During the sentencing hearing, the State elicited testimony offered to prove the evidentiary predicate for imposition of the HVFO sanctions. The State also sought imposition of DSFO sanctions against Alvarado based on the fact that he was on probation for aggravated battery at the time he committed the crimes. The trial court found that Alvarado qualified for HVFO sanctions based on his prior conviction for aggravated battery on a pregnant woman, and sentenced him to concurrent mandatory life sentences on Counts I and II, with twenty-five year minimum mandatory terms as a DSFO. On Counts III and IV, Alvarado was sentenced to concurrent terms of life imprisonment with fifteen-year minimum mandatory terms as an HVFO and twenty-five-year minimum mandatory terms as a DSFO. Finally, on Count V, Alvarado received thirty years imprisonment with a ten-year minimum mandatory term as an HVFO and a twenty-five year minimum mandatory term as a DSFO.

Alvarado argues that the trial court erred in sentencing him as an HVFO on Counts III, IV, and V because the sole prior conviction upon which this enhanced sentencing was imposed is aggravated battery on a pregnant woman under section 784.045(l)(b), Florida Statutes (2004). He asserts that this particular form of aggravated battery is unlike the standard aggravated battery because it is not a violent crime. See § 784.045(l)(b), Fla. Stat. (2004). Instead, the crime of simple battery moves from a misdemeanor to a felony when the victim is pregnant and the accused knew or should have known that she was pregnant. Id. Thus, Alvarado reasons that aggravated battery on a pregnant woman is not a violent offense that subjects him to HVFO sentencing. This is an issue of statutory construction, a pure question of law for which the standard of review is de novo. See Sutton v. State, 975 So.2d 1073, 1076 (Fla.2008).

Section 775.084(l)(b), Florida Statutes (2004) sets forth the requirements for HVFO sanctions. It states that a court may impose an extended term of imprisonment as a habitual violent felony offender if the defendant was previously convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions were for one of the felonies enumerated in the statute. § 775.084(l)(b)(l), Fla. Stat. (2004). Aggravated battery is one of the enumerated crimes that qualify a defendant for HVFO sentencing. Id.

Turning to the aggravated battery statute, section 784.045(l)(b), Florida Statutes (2004), states that:

“A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.”

This statute does not differentiate between the standard aggravated battery and simple battery that becomes aggravated battery because the victim is pregnant. Moreover, it does not describe different sentencing for the two forms of aggravated battery, and specifically references section 775.084, Florida Statutes, the HVFO sentencing statute, as an option for both forms of aggravated battery.

Our supreme court dealt with a similar issue in White v. State, 666 So.2d 895 (Fla.1996). There, the defendant was sentenced under section 775.084, Florida Statutes as an HVFO. Id. at 895. His predicate offense was manslaughter by culpable negligence. Id. at 895-96. The conviction stemmed from a charge of driving while under the influence of alcohol during which the defendant struck and killed a bicyclist with his car. Id. at 896 n. 1. The defendant filed a rule 3.800 motion to correct an illegal sentence, arguing that he should not have been sentenced as an HVFO because his predicate offense, unlike the other enumerated predicate offenses, was not “especially” or “consciously” violent. Id. at 896. The Florida Supreme Court disagreed, stating that the legislature named manslaughter as a qualifying offense without limitation. Id. The Supreme Court held that the plain language of the HVFO provision and the manslaughter provision, when read together, “indicate ... that the legislature intended to permit courts to habitualize defendants with a prior conviction for manslaughter by culpable negligence.” Id.

Likewise, a plain reading of the HVFO provision and the aggravated battery provision indicates that the legislature intended to permit courts to habitualize defendants who have committed simple battery on a pregnant woman, which is deemed an aggravated battery because of the condition of the victim. The legislature listed aggravated battery as an enumerated predicate offense for HVFO sentencing without limiting it to the standard aggravated battery. Accordingly, the trial court did not err in sentencing Alvarado as an HVFO.

Alvarado urges this court to perform the kind of analysis that our supreme court performed in State v. Hearns, 961 So.2d 211 (Fla.2007). There, the defendant was sentenced as a violent career criminal (VCC) under section 775.084, Florida Statutes (2000). Id. at 212. One of the offenses that qualified the defendant for VCC sentencing was battery on a law enforcement officer (BOLEO). Id. at 212-13. The defendant filed a motion for post-conviction relief, arguing that BOLEO is not a qualifying offense for VCC sentencing. Id. at 213. As in the present case, the defendant argued that BOLEO is really simple battery that becomes a more serious offense when it is committed on a law enforcement officer. Id. at 214.

That is where the similarities end between Hearns and the present case. The defendant in Hearns was being sentenced under the VCC statute, which did not specifically list BOLEO as a qualifying offense. Id. Thus, in order for BOLEO to become a qualifying offense for VCC sentencing, it had to fall under the catch-all category of “any forcible felony, as described in s. 776.08.” Id. The forcible felony statute also did not specifically list BOLEO as a forcible felony, so it had to fall under that statute’s catch-all category as “any other felony which involves the use or threat of physical force or violence against any individual.” Id. The Court went on to analyze the statutory elements of BOLEO to determine whether it is a forcible felony, and determined that it is not. Id. at 218-20.

The Hearns analysis is not applicable to this case because Alvarado was convicted of one of the enumerated qualifying offenses for HVFO sentencing. The legislature has clearly indicated its intent that the specifically-enumerated offenses qualify a defendant for enhanced sentencing. Accordingly, the trial court properly sentenced Alvarado as an HVFO because battery on a pregnant woman falls within the definition of aggravated battery, one of the enumerated qualifying offenses.

Affirmed.

WARNER and STEVENSON, JJ., concur.

      . Alvarado was also cited for violating the terms of his probation by committing the new law violations. He was ultimately found to have violated the terms of his probation. The sentence that was ultimately imposed in the probation case is not relevant to this appeal.

      . "Whoever commits aggravated battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.083, s. 775.083, or s. 775.084.” § 784.045(2), Fla. Stat. (2005).


source: Caselaw Access Project

license: Public Domain

text:
    BAYVIEW LOAN SERVICING, LLC, Appellant, v. Nivia GIBLIN, Appellee.
    No. 4D08-1117.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.

      Mitchell D. Adler of Greenspoon Marder, P.A., Fort Lauderdale, for appellant.
    Stephen D. Jerome of Stephen Jerome, P.A., Pompano Beach, for appellee.
   DAMOORGIAN, J.

Bayview Loan Servicing, LLC (“Lender”) appeals an order deeming real property of Thomas F. Giblin (“Decedent”) to be homestead property which descended to decedent’s surviving spouse, Nivia Giblin, and his descendents. We affirm. See § 732.401(1) Fla. Stat. (2001); King v. Ellison, 648 So.2d 666 (Fla.1994).

Decedent and Nivia Giblin were married in 1959. They had a daughter together. In 1981 they separated but never divorced. In 2000, decedent purchased a piece of residential property in Broward County. Title to the property was placed in the decedent’s name. The wife and daughter lived in the home, but decedent never did. Decedent died in 2001.

Decedent bequeathed his estate to his children and grandchildren. While probate was pending, the personal representative of the estate took out a mortgage on the property with the Lender. Later, the Lender brought a foreclosure action against the estate. The wife filed a petition to determine the homestead status of the property.

After an evidentiary hearing, the trial court found that the property was decedent’s homestead within the meaning of article X, section 4 of the Florida Constitution. As such, the court ordered that “the title to the Property descended and the constitutional exemption from the claims of decedent’s creditors inured to the decedent’s surviving spouse, Nivia Giblin, as to a life estate, with a vested remainder in the descendents of the decedent in being at the time of the decedent’s death.” Lender appeals.

Article X, section 4 of the Florida Constitution provides, in relevant part:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, ... if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family,
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child....

(emphasis added).

The language of article X, section 4 is clear and unambiguous. Here, decedent was a natural person who owned property occupied by his wife and child at the time of his death; thus, the property is homestead. Because decedent died leaving a spouse, the descent of his property is controlled by section 732.401(1), Florida Statutes (2001). As such, the wife is entitled to a life estate in the homestead with a vested remainder to the descendants. § 732.401(1), Fla. Stat.

We note that we have decided only that the property in question was the decedent’s homestead, title to which should pass accordingly. The Lender is free to pursue any available cause of action not inconsistent with this determination.

Affirmed.

GROSS, C.J., and POLEN, J., concur.

      . § 732.401(1) provides:
      If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent's death per stippes.


author: CASANUEVA, Judge.

text:
    Gary INGMIRE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5499.
    District Court of Appeal of Florida, Second District.
    May 6, 2009.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Gary Ingmire, Jr., appeals his sentence of fifteen years in the Department of Corrections, alleging the trial court erred in concluding that he willfully failed to appear for sentencing pursuant to a plea agreement for which he was to receive a probationary sentence. We agree and reverse.

Facts

The State charged Mr. Ingmire with grand theft in the amount of $20,000 or more and scheming to defraud. In April 2007, he entered into a plea agreement with the State that was approved by the trial court. In return for a plea to the grand theft charge, the other charge would be dismissed. Additionally, he was to provide an initial payment of $10,800 towards a total restitution amount of $77,790.50, and he would be placed on probation for a term of ten years. The written plea agreement contained an express provision that if Mr. Ingmire failed to appear at his scheduled sentencing, he would not be permitted to withdraw his plea and the trial court could then impose any lawful sentence for his offense.

After some delay, Mr. Ingmire presented a check in the amount of $8000, an amount less than that agreed upon but which was acceptable to the State because it exceeded the minimum requested by the victim. The written plea was modified to reflect this change in amount. The trial court set sentencing for June 4 and reminded Mr. Ingmire that his plea agreement required his appearance on that date. He appeared on that date but indicated he wished to obtain counsel to represent him during sentencing. Consequently, the trial court rescheduled sentencing to June 27. Mr. Ingmire did not appear on June 27 but later turned himself in to law enforcement.

At the subsequent sentencing hearing, the State contended that Mr. Ingmire’s failure to appear was willful and requested that the trial court impose a greater sentence than contemplated by the plea agreement. The trial court received testimony from four witnesses, three on Mr. Ingmire’s behalf, on the issue of whether his failure to appear at sentencing was willful.

Larry Ingmire, Mr. Ingmire’s uncle, testified that he had misread the date and advised his nephew to appear on June 28 rather than the correct date, June 27. Larry Ingmire drove Mr. Ingmire to the courthouse on June 28 at which time a bailiff informed Mr. Ingmire that his hearing had been scheduled for the prior day. While at the courthouse, Mr. Ingmire also learned that no arrest warrant had yet been issued. When Larry Ingmire discovered he had misread his nephew’s documents, he exclaimed, “Oh my gosh, what did I do,” and Mr. Ingmire immediately telephoned his bail bondsman for instructions. Larry Ingmire also testified that he learned shortly after the incident that he required reading glasses.

Mr. Ingmire’s bail bondsman, Jack Cochran, testified next. Mr. Cochran verified he received a call from Mr. Ingmire indicating that he was at the courthouse but realized he was to have been there the previous day. Mr. Ingmire then came to Mr. Cochran’s office repeating that he missed his court appearance and informing him that there was no outstanding warrant for his arrest. In response, Mr. Cochran told him that he should come back in a couple of days because, by that time, an arrest warrant should have been issued. Mr. Ingmire subsequently called Mr. Cochran every day and, in turn, Mr. Cochran called the jail to determine if a warrant had yet been issued. Mr. Ingmire voluntarily turned himself in to the sheriffs office when the warrant finally issued. Records reflect that he was not booked until July 13.

Mr. Ingmire testified on his own behalf confirming that he had paid $8000 toward restitution and, more important, that he did not intentionally miss his scheduled court date. He claimed that his failure to timely appear was through his own human error. But, he did come to the courthouse a day late at which time he spoke to a female bailiff. Learning of his error, he went immediately to his bail bondsman’s office to seek his advice which was to turn himself in when the warrant issued. As a further sign of good faith performance, Mr. Ingmire told the court that he possessed an additional $2100 to pay toward restitution, that he had a present job offer to work in his uncle’s carpet shop facilitating his ability to continue paying on his restitution obligation, and that he had already spent 104 days in the county jail. Further, he apologized to the court for his error and noted that he had not previously missed a scheduled court date.

On cross-examination he admitted he did not advise the female bailiff he had missed his scheduled court date the previous day, nor did he personally notify the sheriffs office of his failure. And, despite a prior history of speaking with the state attorney’s office regarding his case, he did not bring his failure to appear to its attention. He said he was scared.

The State called a single witness, a male bailiff assigned to the courthouse. The bailiff testified to his understanding of the protocols to follow if a defendant were to advise a bailiff of a nonappearance. Training and procedure mandate the person be seized and a warrant obtained. He was not the bailiff Mr. Ingmire claimed he spoke with.

Following this testimony, the State argued that there was no evidence that Mr. Ingmire was unable to attend court on the scheduled date and that the trial court was well familiar with the local procedures. The State sought a sentence of fifteen years’ incarceration. The trial court found that Mr. Ingmire had previously made numerous timely appearances in this case and that he was attempting to pay as much of the restitution before sentencing as he could. However, the trial court also found that Mr. Ingmire was advised and reminded of his court date and the possible penalty for nonappearance, that the court was familiar with policy and procedures triggered when a person advises that he failed to appear at the proper time, that the bailiff’s testimony was credible, and that Mr. Ingmire’s testimony was not credible. The court then imposed the State’s requested sentence of fifteen years’ incarceration, the maximum penalty provided by law for Mr. Ingmire’s second-degree felony.

Analysis

To prove that Mr. Ingmire violated a term of his plea agreement by failing to appear, the State was required to prove the violation by a preponderance of the evidence. See Neeld v. State, 977 So.2d 740, 745 (Fla. 2d DCA 2008). However, “ ‘[w]here timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.’” Robinson v. State, 946 So.2d 565, 567 (Fla. 2d DCA 2006) (quoting Johnson v. State, 501 So.2d 158, 160-61 (Fla. 3d DCA 1987)). The main issue before the trial court was a factual determination of whether Mr. Ingmire’s failure to appear was willful. Thus, our standard of review is limited. “If the trial court’s findings are supported by competent substantial evidence, we will not substitute our judgment for that of the trial court on questions of fact, the credibility of the witnesses, and the weight to be given to the evidence by the trial court.” State v. Pearce, 994 So.2d 1094, 1099 (Fla.2008) (citing Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997)); see also Parker v. State, 3 So.3d 974 (Fla.2009) (same). “Competent substantial evidence is tantamount to legally sufficient evidence.” R.F. v. Fla. Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000).

Because the State presented no evidence that even suggested the willfulness of Mr. Ingmire’s actions, we conclude the evidence presented at the hearing was legally insufficient to support the trial court’s conclusion. The State only presented the testimony of a male bailiff who explained the court’s procedures if, hypothetically, a criminal defendant were to inform a bailiff that he had missed a hearing. However, that bailiff also testified that he did not know whether Mr. Ingmire had spoken with a bailiff at all, let alone what they might have discussed. Consequently, the bailiffs testimony was not probative as to the issue at hand.

Moreover, although the trial court found that Mr. Ingmire was not credible, the trial court made no such findings as to Mr. Ingmire’s uncle or his bail bondsman. Both witnesses verified Mr. Ingmire’s story — that his failure to appear was a mistake in reading the date on his paperwork, that he went to the bail bondsman’s office the day after he was required to be in court, and that he followed his bondsman’s instructions to the letter by going home, contacting the bondsman daily, and turning himself in as soon as a warrant issued.

Additionally, the State offered no motive to explain why Mr. Ingmire would place his probationary sentence at risk by failing to appear, or why he would fail to appear after paying the substantial agreed amount of presentence restitution. There is no evidence suggesting he was hiding or sought to leave the area. Certainly, Mr. Ingmire can be criticized for not contacting the appropriate authority or for failing to immediately turn himself over to law enforcement, but the record incontrovertibly establishes that he attempted to follow what he thought was a proper and reasonable course of action.

Even without Mr. Ingmire’s own testimony, which the trial court disbelieved, all of the relevant evidence established below is consistent with a person who simply erred and compounded the error through well-intended but improper action. There is an absence of positive evidence to establish willfulness. “[T]he circuit court cannot declare that the defendant violated the terms of his plea agreement in the absence of competent, substantial evidence to support that finding.” Neeld, 977 So.2d at 745.

We reverse and remand with instruction to sentence Mr. Ingmire according to the plea agreement with appropriate credit for time served.

Reversed and remanded.

WALLACE and KHOUZAM, JJ„ Concur.

      . Up to this point Mr. Ingmire had represented himself.

      . The only evidence to suggest there was any conversation between an unknown female bailiff and Mr. Ingmire came from Mr. Ing-mire. He testified that when he arrived at the court one day late, he spoke to a bailiff and learned his hearing was scheduled for the prior day. However, he specifically stated that he did not tell the bailiff he had missed the hearing. Regardless, we recognize that the trial court found Mr. Ingmire to not be credible and we are bound by that finding.


author: WHATLEY, Judge.

text:
    Michael Dale JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1373.
    District Court of Appeal of Florida, Second District.
    May 27, 2009.

      James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Michael Dale Jones appeals the denial of his motion for postconviction relief. We reverse and remand for further proceedings.

In his motion, Jones raised three grounds, but in this appeal he addresses the denial of only one of those grounds. That ground was that his trial counsel was ineffective for failing to move for discharge upon expiration of the speedy trial period. The trial court ruled that Jones failed to show that counsel’s performance was deficient because the record reflects that counsel moved for a continuance, which waived Jones’ speedy trial rights.

Jones argues that the motion for continuance was made after the speedy trial period ran, and therefore, it did not affect his right to demand his speedy trial rights. Jones is correct. See Nelson v. State, 993 So.2d 1072, 1074 (Fla. 4th DCA 2008) (“A request for a continuance after a speedy trial period has run but before moving for discharge does not affect a defendant’s right to demand his speedy trial rights.” (citing State v. Leslie, 699 So.2d 832 (Fla. 3d DCA 1997))).

The State responds that Jones’ motion failed to show either deficient performance of trial counsel or prejudice because it failed to allege that he was ready for trial on the 175th day and that he would not have been tried during the fifteen-day recapture period. Jones’ motion is in fact legally insufficient in these respects. Nevertheless, Spera v. State, 971 So.2d 754 (Fla.2007), requires that we reverse and remand with directions that this claim be stricken with leave to amend within a specific period of time. See Smith v. State, 988 So.2d 693 (Fla. 2d DCA 2008) (reversing summary denial of two grounds of Smith’s motion for postconviction relief based on legal insufficiency because Smith failed to allege that the State could not have brought him to trial within the recapture period; remanding pursuant to Spera).

Accordingly, we reverse the order denying ground three and remand for further proceedings consistent with this opinion and Spera. We affirm the subsequent order denying grounds one and two of Jones’ motion after an evidentiary hearing.

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

FULMER, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . In his initial motion, Jones raised a ground regarding his sentence in another case in which he was sentenced on the same day. However, in his amended motion, Jones abandoned that ground because of the fact that it concerned another case.


author: TAYLOR, J. HAZOURI, J.,

text:
    Jason TERRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2067.
    District Court of Appeal of Florida, Fourth District.
    May 27, 2009.

      Jason Terrell, Perry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Defendant, Jason Terrell, appeals the summary denial of his motion for postcon-viction relief, which alleged ineffective assistance of counsel. Defendant originally alleged nine grounds for relief, but he has since abandoned two of those arguments on appeal. Because we find that two of the remaining claims required an eviden-tiary hearing, we reverse and remand for an evidentiary hearing as to those claims.

The defendant was charged by information with aggravated battery on a law enforcement officer, aggravated battery, grand theft, and driving with a suspended license. The following facts were shown at trial. Denise Cobb and the defendant dated off and on for twelve or thirteen years. They had last broken up in February 2001. On June 9, 2003, the defendant appeared at Cobb’s mother’s house. He asked Cobb to get in his car, but she refused and got in her own car instead and left. The defendant followed her. He ran into the back of her car. When she made a left turn, he struck her again.

Cobb called 911 as she was driving and was able to relay the defendant’s tag number. Officer Donald Hammond spoke with Ms. Cobb and issued a BOLO for the defendant’s vehicle. Officer Carl Hannold and his partner, Officer Finstad, spotted the defendant’s car, confirmed the tag, and called for more back-up officers. The defendant then turned into a condominium complex. As soon as he turned into the condominium parking lot, the defendant sped up, swerving from side to side and driving extremely fast and recklessly.

There was only one way in and out of the complex. Officer Hannold testified that once inside the condominium parking lot, he and his partner came to a full stop and backed up towards the entrance/exit. Officer Finstad positioned the vehicle at the entrance/exit. They lost visual contact with the defendant as he pulled around the condominium. Thinking that the defendant may have parked and taken off on foot, Hannold exited the police vehicle. He intended to chase the defendant on foot. While Hannold was standing outside the door talking to his partner, he heard a loud crash.

As he looked to the north, he saw the defendant’s vehicle smash into a parked construction vehicle, knocking it partly out of the way and hitting the building so he could force his way through the construction barricade and come back around at them from the other side, southbound. Officer Hannold testified that the defendant was coming toward them, aiming his vehicle at them.

Hannold dove back into the car and yelled to Finstad that the defendant was going to ram them. Hannold jumped up onto the computer stand in the center console of the car to get away from the door jamb, where he expected the impact. Finstad put the police car in drive and tried to get them out of the way of the defendant, who was coming at a high rate of speed. Finstad was able to move the police car slightly forward, which caused the defendant to collide mostly with the back passenger door. If they had not moved, the defendant would have crashed directly into Hannold’s door. The impact knocked Hannold onto his partner’s lap. The defendant exited his disabled vehicle and began to run away. The officers chased him to the edge of the ocean, where they finally captured the defendant.

Photographs of the wrecked vehicles in them position of rest were admitted into evidence. Hannold testified that the photo shows that the police car was not blocking the entrance to the condominium.

Officer Matthew Finstad corroborated his partner’s account. He testified to hearing the defendant’s engine accelerate and his tires squeal, spin, and pick up speed as it came towards their police car. The defendant was coming right at them, so he put the car in drive and was able to move it forward a foot or two before the impact. He testified on cross-examination that the police car was not blocking the exit to the parking lot.

John Derasmo was the construction project manager. He was supervising a fourteen-man crew and performing construction work on the condominium that morning. He saw the defendant come into the condominium, followed by a police cruiser. He saw the defendant screech around the lot, plow into his truck, and “t-bone” the police car that was blocking the condominium exit. According to Deras-mo, the police car was not moving when the defendant crashed into it.

The defendant testified. During a colloquy with the trial judge, Hon. Ana I. Gard-iner, the following exchange occurred:

THE COURT: Other than you testifying, do you wish for Mr. Friedman to call any other witnesses?
THE DEFENDANT: No, ma’am.
THE COURT: Are there any witnesses that you have asked Mr. Friedman to call or to locate that have not been located?
THE DEFENDANT: No, ma’am.

The defendant testified that he hit Cobb when his foot accidentally came off the brake pedal at a traffic light. He admitted that he was driving on a suspended license. He acknowledged that he “bumped” Der-asmo’s truck, though he later admitted that he tore the bumper off. He said that he panicked, but also claimed that he accidentally hit the police car. He explained that the police car just pulled in front of him and he did not have time to stop. He claimed that the police car was in reverse and backed into him.

The defendant was found guilty of the lesser-included offense of battery on a law enforcement officer, the lesser-included offense of battery, and driving while his license was suspended. He was found not guilty of grand theft. He was sentenced to time served on the misdemeanor convictions and to ten years as a habitual offender and a prison releasee reoffender for battery on a law enforcement officer.

The defendant moved for postconviction relief only as to the battery on a law enforcement officer charge, alleging various grounds of ineffective assistance of counsel: a) failure to interview and call Tom Deal, an eyewitness to the alleged crime; b) failure to depose eyewitness John Derasmo and perform discovery as to the fourteen other construction workers who witnessed the alleged crime; c) failure to interview and call “an expert in automobile accidents,” d) failure to adequately cross-examine Officer Hannold; e) failure to adequately cross-examine Officer Fin-stad; f) failure to object to a juror who was sleeping during the defendant’s testimony; g) failure to object to the alleged illegality of his sentence; h) misadvice about waiving a PSI; and i) failure to prepare the defendant to testify. The defendant has abandoned his last two arguments on appeal.

The trial court ordered a response from the state. The state attached the entire underlying record and trial transcript as an exhibit. The court then denied the motion for postconviction relief.

A defendant is entitled to an evi-dentiary hearing on his postconviction motion unless: 1) the motion, files, and records in the case conclusively show that the defendant is not entitled to any relief; or 2) the motion or a particular claim is invalid. Phillips v. State, 894 So.2d 28, 37 (Fla.2004). In determining whether or not an evidentiary hearing is warranted, this court must accept the defendant’s factual allegations to the extent the record does not refute them. Id.

“The right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). To prevail on a claim of ineffective assistance of counsel, a defendant must establish:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. 2052. “Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. The standard is reasonably effective counsel, not perfect or error-free counsel. Coleman v. State, 718 So.2d 827, 829 (Fla. 4th DCA 1998). Even in cases where counsel has been unprofessional, the defendant must show that there is a reasonable probability that, but for counsels’ unprofessional errors, the result would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694,104 S.Ct. 2052.

A. Failure to Interview and Call Tom Deal

In his sworn motion, the defendant alleged that he requested that his attorney interview and call Tom Deal to testify during the trial. Deal was at the construction site at the time of the alleged crime. The motion alleged that Deal would have testified that, among other things, “the police car was reversed into the path of the defendant’s car and the defendant slammed on the brakes, but the cars still impacted.” The defendant alleged that this witness’s testimony would have exonerated him because it would have supported his defense that he did not intentionally slam his car into the police car.

A defendant is required to allege what testimony defense counsel could have elicited from witnesses and how defense counsel’s failure to call, interview, or present the witnesses who would have so testified prejudiced the case. Nelson v. State, 875 So.2d 579, 583 (Fla.2004). The defendant appears to have satisfied this burden.

A claim of ineffectiveness in failing to present important exculpatory evidence cannot be resolved on the basis of the mere existence of conflicting evidence in the record. “Rather, the record must conclusively rebut the claim if the claim is to be resolved without a hearing.” Jacobs v. State, 880 So.2d 548, 555 (Fla.2004). Typically, it will be necessary to hold an evi-dentiary hearing to determine why trial counsel did not call a particular witness. See id. A trial court’s finding that defense action or inaction was the result of trial strategy will generally be disapproved if the decision is made without first holding an evidentiary hearing. Evans v. State, 737 So.2d 1167, 1168 (Fla. 2d DCA 1999).

The state argues that an evidentiary hearing on the defendant’s claims concerning his attorney’s failure to call witnesses was unnecessary because the transcript -of the colloquy conducted by the trial court showed that the defendant did not want to call any other witnesses. We agree that the defendant’s claim as to Tom Deal was refuted by the record, given that his sworn motion indicated his awareness of the substance of Tom Deal’s testimony and his availability for trial. The defendant is thus bound by his sworn answers during the colloquy. See Iacono v. State, 930 So.2d 829 (Fla. 4th DCA 2006) (holding that defendant’s sworn statements to court during plea colloquy conclusively refuted his postconviction claim that medication rendered him unable to understand his plea, and thus, his claim was legally insufficient to warrant an evidentiary hearing).

B. Failure to Interview and Call an Accident Reconstruction Expert

For the same reasons discussed above, we find that the defendant’s claim as to his attorney’s failure to call an accident reconstruction expert at trial is refuted by his sworn statement during the colloquy that he did not wish to call any other witnesses. The defendant alleged in his postconviction motion that he wrote several letters to his attorney before trial, asking him to call an “accident expert” to testify during the trial. He asserted that an expert would have testified that the defendant attempted to stop, as opposed to speeding up, as the officers testified. The sworn motion also alleged that the expert would have testified that, based on the positioning of the cars, the police cruiser traveled into the path of the defendant’s car, and that the defendant did not hit the cruiser.

Ordinarily, where, as here, the defendant has identified specific exonerating testimony which could have been provided by an expert, an evidentiary hearing will be required to determine whether the decision not to present the expected testimony was tactical or an unprofessional failure on the part of appointed counsel. See State v. Riechmann, 777 So.2d 342, 354 (Fla.2000) (deciding whether failure to call blood spatter expert was ineffective assistance of counsel after evidentiary hearing at which expert testimony was presented); see also Carmona v. State, 814 So.2d 481, 482 (Fla. 5th DCA 2002) (deciding whether defense counsel’s decision not to call physician was tactical after evidentiary hearing).

As a threshold matter, the state asserts that this claim was facially insufficient because the defendant did not name the expert whom he wished to testify. Although the defendant is usually required to identify fact witnesses by name, we are aware of no authority requiring the defendant to provide the name of a particular expert where the defendant claims that trial counsel failed to secure an expert in a named field of expertise. We thus do not agree that the defendant’s postconviction claim was facially insufficient. However, we do determine that his claim concerning an accident reconstruction expert is refuted by the record. During the colloquy, the defendant assured the court that there were no other witnesses he wanted to call in his defense. His inability to identity an expert by name did not preclude him from advising the court that he wanted his attorney to call an accident reconstruction expert. As his sworn postconviction motion indicated, the defendant had asked his attorney to retain an accident reconstruction witness, and he was aware of the potential benefit of such expert testimony. We therefore conclude that the trial court did not err in determining that the defendant was not entitled to an evidentiary hearing on this claim.

C. Failure to Depose John Derasmo and Conduct Further Investigation

The defendant alleged that his attorney failed to depose state witness John Derasmo, who testified at trial that there were fourteen other men at the construction work site that day. According to the defendant’s sworn motion, had defense counsel taken Derasmo’s deposition he could have obtained the names of the other eyewitnesses to the collision, interviewed them, and found other witnesses to testify that the defendant was attempting to stop his car and did not intentionally strike the police car.

Counsel has a duty to make a reasonable investigation or to make a reasonable decision that makes a particular investigation unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness under all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. There is nothing in the record refuting this allegation and thus an evidentiary hearing was required as to this issue.

D. Failure to Object to a Sleeping Juror

The sworn motion alleged that the defendant informed defense counsel that while he was testifying, one of the jurors, Ms. Porter, was “sleeping and falling over.” Defense counsel failed to object. The state has essentially confessed error as to the trial court’s failure to hold an evidentiary hearing as to this allegation. This confession is well-taken. In Simo v. State, 790 So.2d 1190, 1191 (Fla. 4th DCA 2001), we found that a claim that defense counsel had failed to object to a sleeping juror was legally and factually sufficient and that it was error to have summarily denied that claim.

Based on the foregoing, we reverse and remand for an evidentiary hearing on the following claims: 1) failure to depose John Derasmo and conduct a follow-up investigation; and 2) failure to object to the sleeping juror. We find that the defendant’s remaining arguments are without merit.

Reversed and Remanded.

MAY, J., concurs.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

dissenting.

I concur in all aspects of the majority opinion except the denial of Terrell’s ineffective assistance of counsel claim that his counsel failed to hire and call an accident reconstruction expert. Terrell repeatedly requested that his attorney retain such an expert to refute the state’s claim that he was guilty of aggravated battery on a law enforcement officer.

The majority concludes that the negative response to the trial court’s inquiry of whether Terrell wished to call any other witness conclusively refutes this claim. I disagree. Terrell had no expert to call as a witness. His counsel had failed to comply with his requests to obtain an expert. Perhaps it was a strategic decision by counsel but the record is silent on this point. How would Terrell identify the expert he wished to call?

Contrast this with the majority’s conclusion to deny the ineffective assistance of counsel claim for failing to call Tom Deal. Terrell knew of the witness Deal, and claimed that Deal would provide testimony which would have exonerated him. The majority correctly concludes that the record conclusively refutes this claim. To conclude that the record conclusively refutes the claim that Terrell’s counsel was ineffective for failure to retain and call an accident reconstruction expert in my judgment is erroneous. If no expert had been retained, who was Terrell supposed to tell the trial court that he wanted to call as a witness? How could his response to the trial court’s inquiry be conclusively refuted by the record?

The majority’s decision to deny Terrell an evidentiary hearing for his failure to advise the trial court that he had asked his attorney to retain an accident reconstruction expert is inconsistent with the majority’s determination that Terrell is entitled to an evidentiary hearing on the failure of Terrell’s counsel to depose John Derasmo. The purpose of a Derasmo deposition would have been to produce other eye witnesses to the collision which would show that Terrell did not intentionally strike the police car. Since Terrell is entitled to an evidentiary hearing on this point, why is he not entitled to an eviden-tiary hearing concerning his attorney’s failure to follow up on the numerous requests to retain an accident reconstruction expert in order to investigate the incident and provide testimony to support Terrell’s defense? I do not disagree with the majority’s conclusion that Terrell is entitled to an evidentiary hearing in reference to the failure of his attorney to depose John Derasmo. However, it appears to me that both of these claims of ineffective assistance of counsel are analogous. I would therefore reverse to include Terrell’s claim of ineffective assistance of counsel for his counsel’s failure to retain and call an accident reconstruction expert as one which requires an evidentiary hearing.


author: PER CURIAM.

text:
    Malissa FIORE, Appellant, v. Alexis ATHINEOS, Appellee.
    Nos. 4D08-3077, 4D08-3080.
    District Court of Appeal of Florida, Fourth District.
    May 27, 2009.

      Mark I. Frumkes of Mark I. Frumkes, P.A., Palm Beach Gardens, for appellant.
    Neil B. Jagolinzer of Christiansen & Jaeknin, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the circuit court’s order finding Malissa Fiore in direct criminal contempt in a combined paternity and dependency action.

On April 7, 2008, the court ordered the mother to execute her children’s passport applications in open court. She signed the passport applications under protest and executed an affidavit. The court said, “Defense counsel, thank you for your client’s compliance with this order.” At a hearing on April 14, without a written motion or notice to Fiore, the father told the court that the passport application required additional information and needed to be notarized. The trial court instructed Fiore to fully execute the new passport applications provided to her by the father. The court neither entered a new written order concerning the passport applications nor specified a date of compliance. Fiore took the applications and stated she would execute and return them to the father within a few days.

Problems later developed with Fiore’s handling of the passport applications. The circuit court treated her conduct as direct criminal contempt, but it was not. The conduct concerning the contempt — the mother’s failure to execute and return completed passport applications to the father — did not occur in the “actual presence of the court.” Fla. R. Crim. P. 3.830.

Direct criminal contempt results from conduct committed in the actual presence of the judge. It may be punished summarily pursuant to Florida Rule of Criminal Procedure 3.830. See Gidden v. State, 613 So.2d 457, 460 (Fla.1993). Direct criminal contempt under Rule 3.830 involves a limited category of contempt. See In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948). As the United States Supreme Court has explained, direct criminal contempt typically

includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent ‘demoralization of the court’s authority before the public.’

Id. at 275, 68 S.Ct. 499 (quoting Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925)).

On the other hand, indirect criminal contempt concerns conduct outside the judge’s presence and may be punished only after following the procedures set forth in Rule 3.840. Gidden, 613 So.2d at 460. Strict compliance with Rule 3.840 is required in indirect criminal contempt proceedings. E.g., Levey v. D’Angelo, 819 So.2d 864, 869 (Fla. 4th DCA 2002).

Here, the judge did not follow the procedures of rule 3.840. We understand the judge’s frustration with the time it took to have Fiore perform a simple task. We note that the record supports the judge’s imposition of $1,175 in attorney’s fees as a sanction against Fiore.

As to the other issue on appeal, we find that the trial court had subject matter jurisdiction to hear the father’s post-judgment request concerning the passport applications.

We therefore affirm the June 24, 2008 order granting the father’s motion to compel and imposing sanctions and reverse the order finding Fiore in direct criminal contempt.

GROSS, C.J., WARNER and CIKLIN, JJ., concur.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Renil D. ESCOBAR-RIVERA.
    No. 11-KA-496.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 24, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡/This is the third case in a series of the Gomez Bar murders to come before this Court on appeal. In this case, the defendant appeals his convictions and three consecutive life sentences for three counts of second degree murder. He contends that the trial court erred in failing to grant the motion to suppress his statement; by not requiring a unanimous jury verdict; and by imposing consecutive sentences. For the reasons that follow, the convictions and sentences are affirmed.

Factual and Procedural Background

On October 30, 2008, shortly after 2:00 P.M., the defendant/appellant, Renil Escobar-Rivera (“Escobar”), Jose Cornejo-Garda (“Garcia”), Mario Funes (“Mario”), Rigoberto Funes (“Rigoberto”), and Pedro A. Navarrete-Duran (“Navarrete-Duran”), entered Gomez Bar for the purpose of committing an armed robbery. Escobar, the mastermind behind the robbery, was armed with a .357 magnum and provided his co-perpetrators Mario and Rigoberto with a .380 semfjautomatic3 and a .22 handgun, respectively. The five men entered Gomez Bar with their weapons concealed. They purchased drinks from the bar and played pool for approximately twenty minutes.

While the men played pool, seventy-one year old Mr. Wallace Gomez, one of the bar’s owners, cashed a check in the back room for one of his regular patrons — Mr. Earl Scioneaux. Once Mr. Scioneaux received his cash, he began playing video poker. While playing poker, however, Mr. Scioneaux heard Wallace Gomez exclaim, “you must be joking.” Mr. Scioneaux then turned and observed Escobar holding a gun to Wallace Gomez’s head. Escobar turned briefly, made eye contact with Mr. Scioneaux, and then forced Wallace Gomez down the hallway. Almost instantaneously, Mr. Scioneaux turned and saw the other robbers, with guns drawn, forcing the other bar patrons to the rear of the bar. One of the robbers approached Mr. Scion-eaux and demanded of him, in English, to turn around and put his hands up. The robber then rummaged through Mr. Scion-eaux’s pockets and retrieved his cell phone, wallet, and pocket change.

Outside of the bar, Mr. Patrick Smith, a man in his early eighties, prepared to enter Gomez Bar with his friend, Donald, as he had done numerous times in the past. As soon as they entered, however, one of the men immediately attempted to rob them. Mr. Smith would not relinquish the money he had in his hand, so the robber knocked him down. He then looked up at Donald and said “follow me,” because he had a feeling something bad was about to occur. The two men went to the back kitchen area where Mr. Smith used his cell phone to call 9-1-1. While on the phone with the dispatcher, shots were fired. Mr. Smith and others then attempted to exit the bar through a back room. However, a locked gate prevented them from doing so.

14Meanwhile, Escobar, who still had the gun held to Wallace Gomez’s head, arrived in the back room where the safes were stored. Unknown to Escobar, however, Wallace Gomez kept a .38 revolver behind the door. Wallace Gomez attempted to close the door to retrieve the gun, but Escobar placed his foot in the doorway as a barrier. Once Wallace Gomez retrieved the gun, he stuck its barrel through the door opening and fired. Escobar immediately ran from the back yelling something in Spanish. All of his accomplices, except Mario, responded by fleeing from the bar. Mario was kneeling behind the bar with a gun brandished on one of the bar’s elderly employee’s collecting money that had fallen from the cash register.

Meanwhile, Wallace Gomez ran from the back room with his revolver. Mr. Scion-eaux warned him, however, that one of the robbers was still behind the bar. At that point, Mario appeared, and he and Wallace Gomez stood face-to-face. Wallace Gomez paused and asked Mario if he was with the robbers. Unfortunately, Mario gestured with his gun, and the tragedy ensued. Wallace Gomez fired his gun, and Mario returned fire. The two then shot each other multiple times. These were the shots Mr. Smith heard while on the phone with the 9-1-1 dispatcher. Wallace fell, and his head bounced on the concrete floor. Mario fell to the floor as well. Mr. Beauford Gomez, Wallace Gomez’s brother, was sitting on a bar stool behind Mario and was caught in the crossfire. He slumped over the bar stool and fell to the floor.

Hearing the gunshots and realizing that Mario was still in the bar, Escobar and Rigoberto ran back inside the bar with their guns drawn. Seeing his brother on the floor, presumably dead, Rigoberto immediately opened fire with his .22, firing multiple shots and ultimately killing two other bar patrons. Rigoberto then threw the gun down on the floor and went to render aid to his brother. Mario still had the |fi.380 semiautomatic in his hand. Rigoberto attempted to fire Mario’s gun, but it was jammed. He then threw that weapon down, but Escobar retrieved it and placed the gun in his pocket. Rigoberto and Escobar then dragged Mario from the bar and headed toward the door. Navar-rete-Duran and Garcia did not reenter the bar. They returned to the get-a-way car waiting for the other three men to return.

Once Rigoberto and Escobar emerged from the bar with Mario, they observed a police officer driving down the street. Es-cobar abandoned the two men, jumped in the back seat of the get-a-way car, and ordered Garcia to get out to help Mario and Rigoberto. When Garcia exited the car, however, Escobar forced Navarrete-Duran to drive away. The two men then left Garcia, Rigoberto, and Mario to face the music alone.

Before Navarrete-Duran drove away, however, Mr. Charles Henning was sitting in the parking lot outside of the bar filling out a check that he planned to cash inside the bar. While sitting there, a friend of his opened his truck door and asked whether he heard gunshots. Mr. Henning had not heard anything because his windows were rolled up, and the engine and air conditioner were running. When he looked up, however, he observed three men exit the bar — one of whom had blood dripping from his head and abdomen. He witnessed the men walk toward a 2006 Honda Accord that was parked in the lot. Mr. Henning jotted down the license plate number, make, and model on a napkin.

Around that same time, Deputy Rhonda Goff of the Jefferson Parish Sheriffs Office was driving down Fourth Street headed to her 2:30 P.M. roll call when she observed the three men, who were all covered in blood, walk directly toward her. Observing the men covered in blood, Dep. Goff activated the patrol | alights, turned on the radio, and reported a call about a suspicious person. When the men saw her, they changed directions and started walking up Eiseman — the' street that intersected with Fourth Street. Dep. Goff made a U-turn, pulled up behind the men on Eiseman, exited the unit, and approached them. The men walked away, but she followed them and asked what was wrong. The men stated that they did not speak nor understand English. Dep. Goff then instructed the two men to put the man in the middle down. The injured man, Mario, raised his shirt and revealed what appeared to be a gunshot wound to his abdomen. A witness then ran from the bar and yelled, “watched out, they just shot a bunch of people in the bar.”

Dep. Goff immediately shoved the two uninjured men, Rigoberto and Garcia, onto her unit and placed herself on top of them in order to handcuff them. She searched the men and removed wallets from their pockets, which she placed on top of her unit. Once backup arrived, Dep. Goff entered the bar alone and observed what she described as a “horrific scene.”

The bar was completely covered with blood and money. Wallace Gomez was dead on the floor next to the end of the pool table. He had sustained a fatal gunshot wound in the right upper chest. Beauford Gomez sustained a fatal gunshot wound in the back and was located on the floor near the bar. Wayne Hebert sustained a gunshot wound in the chest. And Jeffrey Carmadelle sustained a gunshot wound to the left upper chest and lower abdomen. Mr. Hebert and Mr. Carma-delle were both transported to the hospital but died shortly after arriving there.

Around 4:00 P.M., Escobar and Navar-rete-Duran arrived at the Tallowtree Apartments — which was located about two miles from the bar. Escobar’s friend, 17Brandi Diaz, lived in apartment 406 with her roommate Donna Lopez. Donna and Brandi knew Escobar but neither of them knew Navarrete-Duran. Escobar knocked on the door and asked if they could come inside for a glass of water. Donna gave both of the men a wine glass filled with water and ice. They drank the water and placed the glasses on the end table. Escobar then used his Motorola cell phone to place a phone call. After making the call, Escobar removed the battery and placed the cell phone on the table. Brandi noticed the blood on Escobar’s clothing and asked him what was wrong. He explained that they had gotten into a fight down the street. Escobar then went to the bathroom, turned on the shower, and tried to clean up. When Brandi heard the water, however, she told him that he could not shower in their house because their boyfriends were on the way home. Yet, Escobar remained in the bathroom for an additional 10 minutes before coming out.

Escobar, Navarrete-Duran, and Brandi then went outside where they each smoked cigarettes, discarding the butts on the ground. Escobar folded two white Hanes socks inside one another, stuffed a gold-type cardboard card between them, and placed them in the trash can sitting outside the neighbor’s front door. Escobar, who was wearing cargo khaki shorts, asked Brandi if he could borrow a pair of her boyfriend’s pants. Brandi gave Esco-bar a pair of black pants that had a white and yellow stripe down the sides. Brandi then noticed a shirt on the ground that she had seen Escobar wear numerous times. When she picked the shirt up, two guns fell out — a chrome revolver and a black automatic. Escobar picked up the guns off the ground, wrapped them back in the shirt, and took a towel that was hanging on the outside railing and wrapped it around the shirt. He then asked Brandi to hide the guns, but she refused. Escobar grabbed Brandi’s hand and placed something |swet inside. When she opened her hand, she saw bloody money which she threw back at Escobar. She then told them to leave. As they stood there, however, police began to fill the area. Esco-bar began to cry and told Brandi that he thought Mario was dead. As more police filled the area, however, Escobar took off towards Orange Blossom, which is a neighborhood behind Tallowtree. Navarrete-Duran ran in the opposite direction. A few minutes later, both the men returned to Brandi’s apartment, but she ran inside and closed the door. The men then took off towards the Westbank Expressway and hid in a canal for approximately four hours.

The police arrived at the Tallowtree Apartments shortly after 4:00 P.M. — -just after Escobar and Navarrete-Duran fled the scene. They had obtained a description of the car and license plate number from Mr. Henning and discovered that the car was registered to Navarrete-Duran. The police then canvassed neighborhoods with large Hispanic populations and found the car parked at the Tallowtree Apartments. Residents in the area informed them that the car’s occupants had entered apartment 406. Det. Mike Cummings learned from Brandi and Donna that the two suspects had been at their apartment earlier. He obtained a consent to search the apartment from Donna wherein the crime scene unit seized a Motorola battery and cell phone, the two white socks Esco-bar had abandoned, a stemmed wine glass, and one wrapper with a gold-type cardboard card. They also seized the three cigarette butts that Brandi, Navarrete-Duran, and Escobar discarded.

Once Escobar was established to be a suspect, his name and description were placed into a statewide and nationwide database. Approximately one week later, on November 6, 2008, Escobar was arrested in San Antonio, Texas. Det. Keith Locas-cio, the lead detective, along with Det. David Canas, traveled to San Antonio on November 7, 2008, to interview Escobar.

Det. Canas, who was fluent in both |9Spanish and English, accompanied Det. Locascio for the sole purpose of serving as a translator for both Escobar and Det. Locascio. When the detectives arrived in San Antonio, Escobar was advised of his Miranda rights in Spanish. He also signed a Spanish Rights of Arrestee form in which he indicated that he understood his rights and wished to waive them. Es-cobar admitted that he participated in the robbery that occurred at the Gomez Bar. He admitted to obtaining the guns used during the robbery and stated that he was armed with a .357 magnum. He stated, however, that he never discharged his weapon and that he never intended to hurt anyone.

On February 26, 2009, a grand jury indicted Escobar with four counts of second-degree murder in violation of La. R.S. 14:30.1. Escobar pled not guilty at the arraignment and moved to suppress his statement, the evidence seized, and the identification made. All motions were denied. On March 22, 2010, Escobar’s motion to declare La.C.Cr.P. art. 782(A) unconstitutional was also denied. However, his motion to quash Count Two of the indictment — La. R.S. 14:30.1 in relation to Beauford Gomez — was granted. Escobar was tried by a twelve-person jury for the second degree murders of Wallace Gomez, Wayne Hebert, and Jeffrey Carmadelle. The jury found him guilty on all counts. Escobar was later sentenced to life imprisonment at hard labor for each of the three convictions. The sentences were imposed without benefit of probation, parole, or suspension of sentence and were ordered to run consecutively.

| ^Assignments of Error

Escobar contends that the trial court erred in failing to grant the motion to suppress his statement; by not requiring a unanimous jury verdict; and by imposing consecutive sentences.

Discussion

First Assignment of Error

In his first assignment of error, Escobar contends that the trial court erred in failing to suppress his statement. He argues that his waiver was not knowing and intelligent because the waiver of rights form was in English and because Det. Canas was not a certified translator.

The State has the burden of proving the admissibility of a purported confession or statement made by a defendant. State v. Arias-Chavarria, 10-116, p. 11 (La.App. 5 Cir. 9/28/10), 49 So.3d 426, 433, writ denied, 10-2432 (La.2/25/11), 58 So.3d 460. Before introducing a defendant’s inculpatory statement made during a custodial interrogation, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, and that the statement was made “freely and voluntarily, and not under the influence of fear, intimidation, menaces, threats, inducement or promises.” State v. Rose, 05-770, p. 9 (La.App. 5 Cir. 2/27/06), 924 So.2d 1107, 1111, writ denied, 06-1286 (La.11/22/06), 942 So.2d 554. In reviewing a trial court’s ruling as to the admissibility of a confession, the court’s conclusions on the credibility of witnesses are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Barton, 02-163 (La.App. 5 Cir. 9/30/03), 857 So.2d 1189, writ denied, 03-3012 (La.2/20/04), 866 So.2d 817. A trial court’s ruling will not be overturned on appeal unless it is unsupported by the evidence. Barton, supra, at 1200.

|nThe record in this case reflects that Escobar’s statement was knowing, intelligent, and voluntarily made. Escobar signed the JPSO’s Spanish Rights of Ar-restee form and initialed next to each of the rights he waived. In addition, Det. Locascio and Det. Canas testified that Es-cobar was also orally advised of his rights in Spanish and indicated that he understood those rights. They further testified that Escobar was not promised anything in exchange for the statement he provided. Det. Canas, who was fluent in Spanish, testified that he translated Det. Locascio’s questions from English to Spanish and then translated Escobar’s answers from Spanish to English. Escobar argues, however, that the waiver was insufficient because Det. Canas was not a certified translator.

Although Det. Canas was not a certified translator, the record reveals that he was, indeed, fluent in Spanish. Det. Canas testified that he was born in Columbia, South America and lived there until he was eight years old. He then came to the United States for two years but returned to Columbia for an additional three years. He further stated that he only spoke Spanish as a child and continues to only speak Spanish at his parent’s home. Moreover, Det. Canas stated that he took advanced Spanish courses in high school and that he enrolled in Spanish courses during college.

The admissibility of a statement or confession is first a question for the trial court, and its conclusions on the credibility and weight of testimony relating to volun-tariness of a statement will not be overturned on appeal unless not supported by the evidence. State v. Terrick, 03-515, p. 10-1 (La.App. 5 Cir. 9/30/03), 857 So.2d 1153, 1159-60. Considering the totality of the circumstances, we find that the State met its burden of proving that Escobar’s statement was knowingly and voluntarily made. Therefore, this assignment of error is without merit.

Second Assignment of Error

|12In his second assignment of error, Escobar contends that the trial court erred in not requiring a unanimous jury verdict.

First, it is worth noting that there is no evidence in the record to indicate whether a non-unanimous jury convicted Escobar. Defense counsel did not request that the jury be polled nor are there juror slips in the record. Thus, Escobar cannot complain of a non-unanimous jury conviction if he was, indeed, convicted by a unanimous jury. Furthermore, we find that Escobar did not object to the jury instructions at trial. In fact, we have combed the record and find that throughout the course of the trial, the judge asked both the State and Defense, numerous times, whether the jury charges were acceptable. Each party indicated that they were.

In order to seek appellate review of an alleged trial court error, a party must make a contemporaneous objection at trial, and he must state the grounds for the objection. La.C.Cr.P. art. 841; State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294. Because Es-cobar did not lodge a contemporaneous objection to the jury charges, he is not entitled to have this issue reviewed and considered by this Court.

Third Assignment of Error

In his third assignment of error, Escobar contends that the trial court erred in imposing three consecutive life sentences.

The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Jones, 98-1055, p. 3 (La.App. 5 Cir. 2/23/99), 729 So.2d 95, 97, citing State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212. In reviewing a sentence for excessiveness, the appellate court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. | ,State v. Bowers, 99-416, p. 4 (La.App. 5 Cir. 9/28/99), 746 So.2d 82, 85.

In this case, Escobar only complains of the consecutive nature of his sentence. He contends that three consecutive life sentences for a non-shooting defendant who attempted to abort the crime is excessive. We note, however, that Escobar did not file a motion to reconsider the sentences imposed. In the past, this Court has held that when the consecutive nature of sentences is not specifically raised in the trial court, then the issue is not included in the bare constitutional excessive review, and the defendant is precluded from raising the issue on appeal. See State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535; see also, State v. Williams, 10-265, p. 7 (La.App. 5 Cir. 11/9/10), 54 So.3d 98, 103 (holding that the defendant was not entitled to a review of the consecutive nature of his sentences for failure to specifically object thereto.).

In this case, Escobar failed to file a motion to reconsider and failed to specifically object to the consecutive nature of his sentence. Therefore, he is not entitled to review of the consecutive nature of his sentences on this appeal.

Error Patent Discussion

We have reviewed the record for errors patent in conformity with La.C.Cr.P. art. 920. See State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

The commitment in this case reflects that Escobar was properly advised of the prescriptive period for filing post-conviction relief. The transcript, however, does not reflect that he was advised of such period.

In the past, this Court has ordered the trial court to properly advise defendant of the prescriptive period under LSA-C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this Court’s opinion and then to file written proof in the record that defendant received the notice. However, in State v. Morris, 40,322 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363, the Second Circuit corrected this error patent by way of its opinion rather than a remand.

|14State v. Davenport, 08-463, p. 11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 457.

Accordingly, we hereby advise Escobar that pursuant to La.C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. art. 914 or 922.

The convictions and sentences are affirmed.

AFFIRMED

      . Gomez Bar was a neighborhood bar located on Fourth Street in Marrero, Louisiana. The bar, which also provided check cashing services, generally contained a lot of cash.

      . Dep. Goff was not on duty when these events began to unfold.

      . Brandi testified that she had met Navar-rete-Duran briefly the day before when she visited Escobar’s apartment. However, she • did not know Navarrete-Duran’s name.

      . Garcia, Mario, Rigoberto, and Navarrete-Duran were also charged in the same indictment for second-degree murder. However, their cases were later severed, and the men were ordered to be tried separately.

      . It was determined that Beauford Gomez was killed by a bullet fired from Wallace Gomez’s weapon.


author: SEXTON, Judge Pro Tem. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Johnathan C. THOMAS, Appellant.
    No. 46,887-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.

      Louisiana Appellate Project, by James E. Beal, Jonesboro, LA, for Appellant.
    Charles Rex Scott, II, District Attorney, Geya Prudhomme, Kenya Ellis, Suzanne Owen, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| defendant, Johnathan C. Thomas, was convicted of armed robbery after a jury trial. He was subsequently sentenced to 26 years at hard labor without the benefit of parole, probation or suspension of sentence. Defendant now appeals. For the reasons stated herein, Defendant’s conviction is affirmed; however, Defendant’s sentence is vacated and the matter is remanded for resentencing in accordance with this opinion.

FACTS

On April 17, 2009, Stewart Carson was seriously injured when he was brutally attacked in the parking lot of Sam’s Town Casino in Shreveport, Louisiana, as he returned to his vehicle after gambling. According to Mr. Carson, he left the casino around 1:15 a.m. and got on the parking garage elevator to return to his Avalanche truck. Mr. Carson recalled being joined on the elevator by Defendant, with whom he engaged in friendly conversation. Mr. Carson further recalled approaching his truck and pressing the remote to unlock the vehicle just before an assailant struck him in the back of the head. When he regained consciousness, Mr. Carson found himself lying in a pool of blood and unable to get to his feet except by using a parked car as a crutch to hold himself up. Mr. Carson’s wallet, cell phone and truck keys had been taken and his truck had been stolen. His scalp had been detached, his nose broken and his teeth broken as a result of the blows he had received. Fourteen staples were required to reattach Mr. Carson’s scalp.

The first police officer to respond to the emergency call was Corporal Justin Metz-ger of the Shreveport Police Department. Corp. Metzger ^testified that, when he arrived at the scene, he observed an older white male bleeding from the face and head, who was being treated by members of the Shreveport Fire Department. Corp. Metzger saw a “rock or a piece of concrete ... covered in blood” lying on the ground. Photos of the crime scene also show a large rock splattered with blood on the parking garage floor, which Mr. Carson assumed was the weapon with which he had been hit. Mr. Carson informed Corp. Metzger that he had been struck in the back of the head and that, when he regained consciousness, his vehicle was gone. Detective Craig Ivy, also of the Shreveport Police Department, arrived at the scene as Mr. Carson was being loaded into an ambulance.

After contacting casino security, Det. Ivy and Corp. Metzger viewed footage recorded by the casino’s surveillance cameras at the time of the attack. In the surveillance footage, the officers observed Mr. Carson enter an elevator on one floor of the parking garage and descend to another floor where he exited the elevator, but appeared unsure of whether he was on the correct parking level. He then returned to the elevator bank where a black male wearing a cream-colored shirt, blue jeans and a wave cap, identified as Defendant by Mr. Carson at trial, was also waiting for an elevator. On the surveillance footage, the two men appear to engage in conversation as they enter an elevator and descend again to another parking level. Mr. Carson, who was walking with a dis-cernable limp, exited the elevator and Defendant remained behind, apparently watching Mr. Carson. As the elevator doors began to close, Defendant stopped them, walked out of the elevator and began to follow Mr. Carson out of camera view. Two different camera Wangles then show Defendant getting closer to Mr. Carson as he approached a row of parked vehicles. While it is clear from the two camera angles that Defendant was attacking Mr. Carson, what exactly transpired between the parked vehicles is not visible on camera. The footage does, however, show an Avalanche truck driving away from the area of the attack shortly before Mr. Carson appeared, stumbling to his feet from behind a parked vehicle.

The surveillance footage was subsequently aired on Crime Stoppers, which generated a tip leading officers to Defendant. Mr. Carson positively identified Defendant as his assailant in a photo lineup and an arrest warrant was issued. Defendant subsequently turned himself in to the Caddo Correctional Center where officers obtained a post-Miranda taped confession wherein Defendant admitted to hitting Mr. Carson, but could not recall details. Defendant related that he later “woke up” in the Avalanche at an apartment complex on North Market Street in Shreveport.

Defendant was initially charged with attempted first degree murder by bill of information filed on May 27, 2009. On November 15, 2010, the bill was amended to a charge of armed robbery. Defendant elected a jury trial. The State submitted the testimony of Mr. Carson, Corp. Metz-ger and Det. Ivy, the surveillance footage and Defendant’s taped confession. By a non-unanimous verdict of 11-1, the jury convicted Defendant of armed robbery. A post-verdict motion for modification seeking that a lesser verdict be entered was filed by Defendant and denied.

At sentencing, the trial judge noted that Defendant had provided no information for the court to consider on his behalf in imposing sentence. 14The trial judge further noted as an aggravating factor the fact that Defendant had used actual violence and caused significant injury to the victim in the commission of the offense. The trial judge also stated the following:

And, No. 21, other relevant aggravating circumstances, which this Court states as follows: No. 1, notwithstanding the defense counsel’s contention regarding the weight of the evidence, the jury rendered its verdict of guilty as charged. No. 2, although relatively minor, defendant has a criminal history of prior arrests and at least one conviction. No. 3, defendant has steadfastly refused to offer and/or accept a reasonable plea agreement when requested to do so by the Court — or invited to do so by the Court. And, No. 4, defendant never expressed any remorse for his conduct.

As mitigating factors, the trial judge recognized Defendant’s relatively young age of 21 years and the possibility that Defendant was under the influence of an intoxicating substance at the time of the offense. The trial judge then sentenced Defendant to 26 years at hard labor without the benefit of probation, parole or suspension of sentence, said sentence to be served consecutively with any other sentence Defendant is obligated to serve. A subsequent motion to reconsider sentence urging that additional weight be given to mitigating circumstances was denied by the trial judge. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): A twenty-six year sentence, without benefit of probation, parole or suspension of sentence, for armed robbery, is excessive for this offender in this case.

Defendant argues that the 26-year hard labor sentence imposed by the trial judge is excessive when compared with other similarly situated defendants. Defendant also argues that the trial court improperly considered his exercise of his right to a trial by jury as an aggravating factor.

lfiThe offense of armed robbery carries a sentencing range of not less than 10 years and not more than 99 years, without benefit of parole, probation or suspension of sentence. La. R.S. 14:64(B).

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters- be given any particular weight at sentencing. State v. |6Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

In Bordenkircher v. Hayes, 434 U.S. 357, 363-64, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978), the U.S. Supreme Court stated:

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” But in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” — and permissible— “attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating and encouraging the negotiation of pleas, 17this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty. [Citations omitted.]

This same principle clearly serves as the bedrock for the pve-Bordenkircher opinions from the federal appellate courts holding that an accused cannot be punished by a more severe sentence because he unsuccessfully exercised his constitutional right to stand trial rather than plead guilty. See Thomas v. United States, 368 F.2d 941 (5th Cir.1966); United States v. Martell, 335 F.2d 764 (4th Cir.1964); United States v. Wiley, 278 F.2d 500 (7th Cir.1960).

On the other hand, if a trial judge has agreed to impose a particular sentence pursuant to a plea bargain, this does not restrict him from imposing a more severe sentence if the defendant elects to go to trial and is convicted. The sentencing judge must, nonetheless, comply with constitutional standards, and the sentence should not be increased due to vindictiveness arising from the exercise of the defendant’s right to stand trial. A judge’s disposition to impose a lenient sentence during plea discussions should not be understood as setting a limit for the justifiable sentence under accepted principles of criminal justice. State v. Frank, 344 So.2d 1039 (La.1977).

In the case sub judice, Defendant’s claim that his sentence was constitutionally excessive is simply not borne out by the record before us. As noted above, the sentencing range for armed robbery is 10 to 99 years at hard labor without benefits. The sentence imposed, 26 years, falls on the low end of the sentencing range. When Defendant’s unconscionable conduct, including his surprise attack on a defenseless victim and repeated |sblows to the victim’s head with a rock, is viewed in light of the harm done to society, Defendant’s sentence does not shock the sense of justice, other than perhaps in its leniency. The sentence is neither grossly out of proportion to the seriousness of the offense, nor is it nothing more than a purposeless and needless infliction of pain and suffering.

Defendant’s reliance on the sentences imposed in State v. Jones, 36,553 (La. App.2d Cir.1/29/03), 840 So.2d 7, writ denied, 03-0956 (La.10/3/03), 855 So.2d 309 (ten years at hard labor), and State v. Dilks, 99-971 (La.App. 5th Cir.12/21/99), 750 So.2d 318, writ denied, 00-0703 (La.11/3/00), 772 So.2d 666 (four years at hard labor), in support of the proposition that two similarly situated defendants received far less severe sentences is without merit. While the defendant in State v. Jones, supra, was also convicted of armed robbery, the firearm used in the commission of the robbery was actually wielded by a codefendant. Furthermore, there was conflicting evidence of the defendant’s use of violence towards the victim and no evidence that the defendant’s alleged violence caused any injury to the victim. In State v. Dilks, supra, the defendant was convicted of carjacking and there is no mention that the defendant was armed with a dangerous weapon. Accordingly, the defendants in the two cases relied on by Defendant herein were not similarly situated; and, therefore, a comparison with the sentences imposed on them are neither instructive nor persuasive.

The considerations of the trial judge in the sentencing of Defendant in the instant case is more troubling. This court’s concern centers on the trial | fudge’s express reliance on Defendant’s exercise of his constitutional right to a trial by jury as an aggravating factor influencing his determination of the appropriate sentence. While such an argument has been addressed and rejected on many occasions by this state’s courts, the courts have always been able to point to an absence of any record evidence that such a vindictive motive existed. See State v. Frank, supra; State v. Harris, 10-492 (La.App. 5th Cir.5/24/11), 66 So.3d 1180. In each of these cases, the defendant had chosen not to accept a plea bargain offered by the state under which his sentence would have been lower than the sentence imposed by the trial court after his conviction by a jury. The defendants’ conjecture that this was the result of vindictiveness by the trial courts to punish them for exercising their right to a trial was treated as just that, conjecture. Absent some affirmative evidence in the record to show that the defendant’s sentence was the product of vindictiveness by the trial judge, the reviewing courts have declined to impugn the trial court’s motives.

In the present case, however, the trial judge’s express characterization of Defendant’s refusal to enter into a plea agreement as an “aggravating” factor makes it impossible to conclude that Defendant’s exercise of his right to a jury trial did not play at least some part in the sentence imposed. The trial judge made clear that Defendant’s failure to forgo a jury trial by |10entering into a plea agreement weighed unfavorably in his determination of the appropriate sentence for Defendant. The trial judge’s attempt to so justify the sentence amounts to the imposition of a penalty for exercising the right to trial by jury, which is a constitutionally impermissible consideration.

DECREE

For the foregoing reasons, the conviction of Defendant, Johnathan C. Thomas, is affirmed. Defendant’s sentence is vacated and the matter remanded with instructions to the trial court to order a presentence investigation and to impose an appropriate sentence within the statutory range as is appropriate under the circumstances of the offense and those of Defendant.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR PRESENTENCE INVESTIGATION AND RESENTENCING.

BROWN, Chief Judge, dissents and assigns written reasons.

BROWN, Chief Judge,

dissents.

_JjThe majority opinion states: “In the case sub judice, Defendant’s claim that his sentence was constitutionally excessive is simply not borne out by the record before us. As noted above, the sentencing range for aggravated robbery is 10 to 99 years at hard labor without benefits. The sentence imposed, 26 years, falls on the low end of the sentencing range. When Defendant’s unconscionable conduct, including his surprise attack on a defenseless victim and repeated blows to the victim’s head with a rock, is viewed in light of the harm done to society, Defendant’s sentence does not shock the sense of justice, other than perhaps in its leniency.” I agree.

The trial court considered a number of mitigating and aggravating circumstances and imposed a “light” sentence. There is no affirmative evidence in the record to show that defendant’s sentence was the product of vindictiveness by the trial judge because he chose to go to trial. In fact, it appears to demonstrate a bias toward leniency. I respectfully dissent and would affirm defendant’s conviction and sentence.

      . We note that La. C. Cr. P. art. 881.1 precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir. 12/17/03), 862 So.2d 1121; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. In the case sub judice, however, in light of the constitutional magnitude of the issue presented, we will address the argument now made by Defendant in this court.