author: WELCH, Judge. WISE, Presiding Judge,

text:
    Jarvis Maurice WILLIAMS v. STATE of Alabama.
    CR-09-0633.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Rehearing Denied Feb. 18, 2011.
    Certiorari Denied April 8, 2011 Alabama Supreme Court 1100641.
    W. Gregory Hughes, Mobile, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WELCH, Judge.

Jarvis Maurice Williams was convicted of felony murder, a violation of § 13A-6-2(a)(3), Ala.Code 1975. The trial court sentenced him to life in prison. This appeal follows.

On October 3, 2008, at approximately 11:40 a.m., Cory Landrum was shot and killed in the Alabama Village neighborhood in Prichard. Terry Parnell and C.D., a juvenile, were arrested shortly after the murder, and both individuals admitted their involvement, pleaded guilty, and testified at Williams’s trial. Parnell testified at trial that a couple of days before the murder Williams came by Parnell’s grandmother’s house and asked to borrow Parnell’s pistol. Williams claimed that he needed it for protection. Parnell testified that on the day of the murder Williams told Parnell that he was going to rob someone. The plan was to rob someone driving through the Village to buy marijuana. Parnell agreed to participate, and C.D. agreed to participate to the extent that he was going to try to take any item of value in the victim’s vehicle. According to Parnell, drugs were regularly sold in the neighborhood. People would flag down individuals driving through the neighborhood and sell them marijuana. Parnell testified that Williams wanted to stop and rob a white person because, according to Williams, white people tended not to carry weapons. The three males stood on Dunlap Street and waited. Land-rum, the victim, drove up and requested marijuana. Williams acted as if he were going to retrieve some marijuana, but, instead, Williams drew Parnell’s pistol and demanded that Landrum give him everything he had. Landrum handed Williams a five-dollar bill from his pocket and told Williams that was all the money he had. Landrum showed Williams his empty wallet, and Williams shot Landrum in the abdomen. Williams took the five-dollar bill and Landrum’s cellular phone. Land-rum attempted to drive away, but shortly after leaving the scene, he hit a telephone pole at the corner of Dunlap Street and Turner Street. Landrum died as a result of his injuries. Parnell testified that he got his pistol back from Williams and took it with him to a friend’s house. When the police came to the house to arrest him, they asked where the murder weapon was, and Parnell told them where to locate the gun in the house. Forensic evidence linked the pistol to Landrum’s shooting.

C.D. testified that he was with Williams and Parnell shortly before the shooting. He realized that Williams wanted to rob someone when he asked Parnell for the pistol. C.D. was in agreement with the plan. C.D. testified that the victim approached them and that Williams robbed and shot him. C.D. testified that Parnell got the victim’s cellular phone and threw it on the ground. C.D. picked up the cellular phone, but when he could not get the phone to work, he threw it back down. C.D.’s testimony contradicts Parnell’s testimony that Parnell got the cellular phone from Williams after the murder.

Nicholas Smalley testified that he and a coworker were driving through the Village on the day of the shooting to retrieve some money and keys from the coworker’s house. As they entered the neighborhood, Smalley saw several males on the corner of Dunlap Street and Marengo Street. According to Smalley, the men were trying to wave him down to sell him drugs. Williams was among the group of men; however, Smalley testified, Williams was not one of the men flagging down motorists. As Smalley arrived at his coworker’s house, he heard a gunshot. When he and the coworker drove out of the neighborhood, he saw Landrum’s truck and several people standing at the driver’s side door. Smalley left the area.

On appeal, Williams argues that the trial court erred in denying his motion for a judgment of acquittal. Specifically, Williams argues that there was no evidence connecting him to the crime other than Parnell’s and C.D.’s testimony. Williams contends that their testimony was not sufficiently corroborated under § 12-21-222, Ala.Code 1975.

Section 12-21-222, Ala.Code 1975, provides:

“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

In addressing whether evidence was sufficient to corroborate accomplice testimony in Ex parte McCullough, 21 So.3d 758 (Ala.2009), the Alabama Supreme Court stated:

“In Ex parte Hardley, 766 So.2d 154 (Ala.1999), this Court addressed the test for determining the sufficiency of evidence corroborating an accomplice’s testimony:
‘“Discussing § 12-21-222, at § 300.01(5), C. Gamble, McElroy’s Alabama Evidence (5th ed.1996), Professor Gamble notes:
“ ‘ “Nonaccomplice evidence of the defendant’s guilt, to be sufficient corroboration of the accomplice’s testimony to take the case to the jury, must tend to connect the defendant with the crime or point to the defendant, as distinguished from another person, as the perpetrator of the crime. Nonaccomplice evidence which merely confirms the way and manner in which the crime was committed, but which is colorless and neutral insofar as the defendant’s connection with the crime is concerned, is not sufficient corroboration to warrant submission of the case to the jury.” ’
766 So.2d at 157.
“This Court has elaborated on this test:
“ ‘Under § 12-21-222, Ala.Code 1975, a felony conviction “cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.” (Emphasis added.) In reviewing a claim of insufficient corroboration, the Alabama appellate courts have stated that
“ ‘ “[t]he test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient evidence tending to connect the defendant with the commission of the offense.”
‘Andrews v. State, 370 So.2d 320, 321 (Ala.Crim.App.), cert denied, 370 So.2d 323 (Ala.1979), citing Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). The evidence corroborating the accomplice’s testimony and connecting the defendant to the offense can be purely circumstantial evidence. Mathis v. State, 414 So.2d 151 (Ala.Crim.App.1982). But, “ ‘[i]t must be of a substantive character, must be inconsistent with the innocence of the accused, and must do more than raise a suspicion of guilt....’ Sorrell v. State, 249 Ala. 292, [293], 31 So.2d 82, 83 [(1947)].” Ex parte Bell, 475 So.2d 609, 613 (Ala.), cert denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985).’
“Ex parte Bullock, 770 So.2d 1062, 1067 (Ala.2000).
“Furthermore, in Ex parte Stewart, 900 So.2d 475 (Ala.2004), this Court, quoting Ex parte Hunt, 744 So.2d 851, 858-59 (Ala.1999), noted:
“ ‘ “The Court of Criminal Appeals has ... added the following caveats to the rule [regarding corroboration of accomplice testimony]:
“ ““ “The tendency of the corroborative evidence to connect [the] accused with the crime, or with the commission thereof, must be independent, and without the aid of any testimony of the accomplice; the corroborative evidence may not depend for its weight and probative value on the testimony of the accomplice, and it is insufficient if it tends to connect [the] accused with the offense only when given direction or interpreted by, and read in conjunction with the testimony of the accomplice.” 23 C.J.S. Criminal Law, Section 812(b)(1961).’
““‘Mills v. State, 408 So.2d [187], 191-92 [ (Ala.Crim.App.1981) ].”
“ ““ “ ‘[EJvidence which merely raises a conjecture, surmise, speculation, or suspicion that [the] accused is the guilty person is not sufficiently corroborative of the testimony of an accomplice to warrant a conviction.’ 23 C.J.S. Criminal Law, Section 12(5)(b).” Staton v. State, 397 So.2d 227, 232 (Ala.Crim.App.1981).’
“ ‘ “Steele v. State, 512 So.2d 142, 143-44 (Ala.Crim.App.1987).” ’
900 So.2d at 477-78 (emphasis added).

21 So.3d at 761-62.

Applying the rule that requires that Parnell’s and C.D.’s testimony must first be subtracted and the remaining evidence examined, the only testimony that references Williams, the testimony with which we are left with, is the testimony of Smal-ley. Smalley’s testimony does not connect Williams to the crime. Without the accomplices’ testimony, Smalley’s testimony does no more than place Williams in the proximity of the crime. Smalley’s testimony did not even place Williams with the accomplices. Smalley did not identify any of the men he saw Williams with on the day of the murder. The fact that Williams was in the area at the time of the murder, without more, does not “raise a suspicion of [Williams’s] guilt.” Ex parte Bullock, 770 So.2d 1062, 1067 (Ala.2000). Even if nonaccomplice testimony had been presented that Williams was seen in the presence of the accomplices near the crime scene shortly before the murder, and even if we found, which we would not, that such testimony connected Williams to the murder, the evidence would still be insufficient corroboration of the accomplices’ testimony because this evidence would only connect Williams to the offense when given direction or interpretation by, and read in conjunction with, the testimony of the accomplices.

Smalley’s testimony does not tend to connect Williams to the murder. Because the evidence was insufficient under § 12-21-222, Ala.Code 1975, to corroborate the accomplices’ testimony that Williams had participated in the murder, we reverse the trial court’s judgment and render a judgment of acquittal for Williams.

REVERSED AND JUDGMENT RENDERED.

WINDOM, KELLUM, and MAIN, JJ., concur. WISE, P.J., dissents, with opinion.

WISE, Presiding Judge,

dissenting.

I disagree with the majority’s conclusion that the evidence was insufficient under § 12-21-222, Ala.Code 1975, to corroborate the accomplices’ testimony that Williams had participated in the murder. “Corroboration need only be slight to suffice,” Ingle v. State, 400 So.2d 938, 940 (Ala.Crim.App.1981), and “need not be sufficiently strong by itself to warrant a conviction.” Miles v. State, 476 So.2d 1228, 1234 (Ala.Crim.App.1985). Also, “[c]orro-borative evidence need not directly connect the accused with the offense but need only tend to do so.” Ware v. State, 409 So.2d 886, 891 (Ala.Crim.App.1981). Finally, “[t]he corroboration of an accomplice may be shown by circumstantial evidence.” Id.

In this case, Smalley’s testimony placed Williams in Alabama Village near the scene of the murder with other males shortly before the murder occurred. His testimony also corroborated accomplice testimony about drugs being sold in Alabama Village and about dealers flagging down vehicles to make sales. Further, his testimony corroborated testimony about the gunshot and the victim attempting to drive away and wrecking his vehicle. Finally, forensic testing linked the gun Parnell helped officers locate to the murder.

The corroborating evidence in this case did not merely show the commission of the offense or the circumstances thereof. Rather, it tended to connect Williams with the commission of the murder. See Ware, supra. Although the corroborative evidence alone may not have supported a conviction, such was not required. See Miles, supra. Finally, the corroborative evidence tended to support a conclusion that, at the very least, portions of the accomplices’ testimony were truthful. Accordingly, even though it was not extensive, I believe that the corroboration that was presented was minimally sufficient to corroborate the accomplices’ testimony. Therefore, I respectfully dissent.


source: Caselaw Access Project

author: WINDOM, Judge. KELLUM, Judge,

license: Public Domain

text:
    Jesse PETTAWAY, Jr. v. STATE of Alabama.
    CR-09-1650.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Rehearing Denied Jan. 28, 2011.
    Certiorari Denied April 8, 2011 Alabama Supreme Court 1100568.
    Jesse Pettaway, Jr., pro se.
    Troy King, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   WINDOM, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH and MAIN, JJ., concur. KELLUM, J., concurs specially, with opinion.

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Jesse Pettaway’s ninth Rule 32, Ala. R.Crim. P., petition challenging his 1981 conviction for first-degree rape and his resulting sentence of life in prison. I believe that allowing Pettaway to file multiple petitions for postconviction relief in which his claims are either precluded or without merit wastes scarce judicial resources. Therefore, I would encourage the circuit court to consider adopting sanctions like those proposed in Peoples v. State, 531 So.2d 323 (Ala.Crim.App.1988), and Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), to prevent future frivolous litigation on the part of Pettaway and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


author: PER CURIAM.

text:
    In re AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.850 AND 3.851; Amendments to Florida Rules of Appellate Procedure 9.141 and 9.142.
    No. SC09-1733.
    Supreme Court of Florida.
    June 23, 2011.
    Rehearing Denied Oct. 12, 2011.
    Robert T. Strain, Chair, Criminal Procedure Rules Committee, Capital Collateral Regional Counsel, Tampa, FL; John Gran-ville Crabtree, Chair, Appellate Court Rules Committee, Crabtree and Associates, P.A., Key Biseayne, FL; Judge Kevin Emas, Chair, Criminal Court Steering Committee, Eleventh Judicial Circuit, Miami, FL, and Judge James C. Hankinson, Second Judicial Circuit, Tallahassee, FL; and John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Kent R. Putnam, Chief Career Attorney, First District Court of Appeal, Tallahassee, FL; and John E. Morrison, and Howard K. Blumberg, Assistant Public Defenders, Eleventh Judicial Circuit, Miami, FL, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to Florida Rules of Criminal Procedure 3.850 and 3.851, and Florida Rules of Appellate Procedure 9.141 and 9.142. We have jurisdiction. See art. V, § 2(a), Fla. Const.

In In re Amendments to Florida Rule of Criminal Procedure 3.851 & Florida Rule of Appellate Procedure 9.142, 1 So.3d 163 (Fla.2008), the Court amended rule 3.851, adding subdivision (j), thereby clarifying that belated appeals may be sought from the denial of a postconviction motion under rule 3.851 under specific narrow circumstances. Additionally, the Court amended rule 9.142, adding subdivision (d), specifically identifying the circumstances in which a motion for belated appeal may be brought.

On the basis of that decision, the Court referred the matter to the chairs of The Florida Bar’s Criminal Procedure Rules Committee, The Florida Bar’s Appellate Procedure Rules Committee, and the Florida Supreme Court Criminal Court Steering Committee. The Court directed that

[t]he committees, in preparing one joint report, should consider procedural matters pertaining to belated appeals, including, but not limited to, the placement of the provisions authorizing belated appeals, the need for cross-referencing the corresponding rules to the extent the rules remain in both the criminal and appellate rules, and time limits for seeking a belated appeal. See § 924.09, Fla. Stat. (2008) (“An appeal may be taken by the defendant only within the time provided by the Florida Rules of Appellate Procedure after the judgment, sentence, or order appealed from is entered.... ”).

In re Amendments to Fla. Rule of Crim. Pro. 3.851, 1 So.3d at 163-64.

Pursuant to that referral, the three committees formed a Belated Criminal Appeals Joint Committee (Joint Committee), and subsequently filed an out-of-cycle report. The Joint Committee has proposed amendments to rules 3.850 (Motion to Vacate, Set Aside, or Correct Sentence), 3.851 (Collateral Relief After Death Sentence Has Been Imposed and Affirmed on Direct Appeal), 9.141 (Review Proceedings in Collateral or Post-Conviction Criminal Cases; Belated Appeals; Belated Discretionary Review; Ineffective Assistance of Appellate Counsel), and 9.142 (Procedures for Review in Death Penalty Cases). The report reflects the collaborative effort of the members of the three committees constituting the Joint Committee and approved by each of the individual committees. In addition, the Criminal Procedure Rules Committee included additional unrelated proposals to amend rule 3.850. The proposed amendments to rules 3.850, 3.851, 9.141, and 9.142 were published by the Court in the November 15, 2009, edition of The Florida Bar News. Two comments were filed in response to the Joint Committee’s proposals. We address the rule amendments in chronological order.

Rule 3.850 — Motion to Vacate, Set Aside, or Correct Sentence

Rule 3.850(b) is amended to remove language pertaining to the time limitation for seeking postconviction relief under the rule in capital cases; rule 3.851, pertaining to cases where a death sentence has been imposed, includes its own time limitation provision, in subdivision (d).

With respect to the time limitation for seeking postconviction relief in noncapital cases, rule 3.850(b) is amended as follows. First, we amend subdivision (b)(1) to include the requirement that any motion under the rule based upon a claim previously unknown to the defendant or his counsel that could not have been ascertained through the exercise of due diligence must be filed within two years of when the facts were or could have been discovered through due diligence. Subdivision (b)(2) adds the requirement that for any motion raising a claim of a fundamental right held retroactive which was not established within the time for seeking postconviction relief, the rule 3.850 motion must be filed within two years of the date of the mandate of the decision announcing retroactivity. Lastly, subdivision (b)(3) adds an additional two-year limitation period to the original period for seeking postconviction relief under the rule for motions alleging that the defendant retained counsel to file a timely rule 3.850 motion and counsel, through neglect, failed to file the motion.

Rule 3.850(c), pertaining to the contents of the postconviction motion, is amended to reflect that under the rule, the motion shall be typewritten or hand-written in legible block letters, in blue or black ink, double-spaced, with margins no less than one inch, on white eight and one-half by eleven-inch paper. In addition, the motion, including any memorandum of law, shall not exceed fifty pages without leave of the court upon a showing of good cause.

We amend rule 3.850(g) (Appeal; Rehearing; Service on Movant) by separating out the three subject areas into individual subdivisions (g), (h), and (i). Under subdivision (g), the term “Movant” is replaced by “Parties,” as the rule requires service by the clerk of court on the parties, rather than only on the prisoner. Service also includes all orders pertaining to the post-conviction motion, rather than only orders denying a rule 8.850 motion or motion for rehearing. Under new subdivision (h), any party may file a motion for rehearing. New subdivision (i) amends the provisions that previously pertained to appeals in rule 3.850 proceedings. Included is the requirement that nonfinal orders expressly provide the following language: “This order is a nonfinal, nonappealable order.” These provisions clarify the various procedures and obligations under rule 3.850 upon issuance of an order.

New subdivision (j) identifies the circumstances for seeking a belated appeal and cross-references rule 9.141; the Court modifies the Joint Committee’s proposal by limiting the subdivision to reference the appellate rule governing the procedures for seeking such relief. The Court also modifies the Joint Committee’s proposal to include new subdivision (k) (Belated Discretionary Review), which similarly cross-references rule 9.141.

Former subdivision (h) (Habeas Corpus) is redesignated subdivision (l) in keeping with the Court’s amendments to rule 3.850.

The Joint Committee’s last proposed amendment to rule 3.850 provides for sanctions under certain circumstances. In light of section 944.279(1), Florida Statutes (2010), we adopt new subdivision (m) as modified. Under section 944.279(1), a prisoner is subject to possible discipline upon certification by a court that a claim or proceeding is either frivolous or malicious. Accordingly, rule 3.850(m), as adopted, addresses the procedure a court may follow in the event of a malicious or frivolous action, either on a party’s motion or on the court’s own motion.

Rule 3.851 — Collateral Relief After Death Sentence Has Been Imposed and Affirmed on Direct Appeal

Rule 3.851 is amended to add new subdivision (f)(8) (Appeals), while subdivision (j) (Belated Appeals) is stricken. Subdivision (f)(8) as amended includes the provision from subdivision (j) concerning belated appeals and addresses the general right to appeal not previously included in rule 3.851. These amendments better organize the rule.

Rule 9.141 — Review Proceedings in Collateral or Post-Conviction Criminal Cases; Belated Appeals; Belated Discretionary Review; Ineffective Assistance of Appellate Counsel

Under rule 9.141, we amend subdivision (c) (Petitions Seeking Belated Appeal or Belated Discretionary Review or Alleging Ineffective Assistance of Appellate Counsel) by limiting the provision for seeking belated review. Accordingly, rule 9.141(c) governs petitions for belated appeal and belated discretionary review. A new subdivision (d) (Petitions Alleging Ineffective Assistance of Appellate Counsel) is added to rule 9.141. This subdivision pertains specifically to claims of ineffective assistance of appellate counsel in noncapital cases.

Rule 9.142 — Procedures for Review in Death Penalty Cases

Rule 9.142, as amended, separates the provisions governing direct appeals, petitions for extraordinary relief, and petitions for belated appeal in death penalty cases. The amendments to rule 9.142 identify the procedures and requirements specific to the particular type of relief sought.

Accordingly, we amend rules 3.850, 3.851, 9.141, and 9.142, as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective on July 1, 2011, at 12:01 a.m.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 3.850. MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

(a) [No Change]

(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in-a-moncapital case or more than -l-year- after-the- judgment and sentence become final in-a ■capital-c-ase-in which-a-death-sentence has been imposed unless it alleges that

(1) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence,_and_the_claim_is_made_witiiin_2 years of the time the new facts were or could have been discovered with the exercise of due diligence, or

(2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity, or

(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion. A claim-based-on-this exception, shall -not be filed more than 2-year-s-after the expiration of-the-time for filing a motion-for postconviction relief.

(c) Contents of Motion. The motion shall be under oath and include:

(1) the judgment or sentence under attack and the court which rendered the same;
(2) whether there was an appeal from the judgment or sentence and the disposition thereof;
(3) whether a previous postconviction motion has been filed, and if so, how many;
(4) if a previous motion or motions have been filed, the reason or reasons the claim or claims in the present motion were not raised in the former motion or motions;
(5) the nature of the relief sought; and
(6) a brief statement of the facts (and other conditions) relied on in support of the motion.

This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence. Motions shall be typewritten or hand-written in legible printed lettering, in blue or black ink, double-spaced, with margins no less than 1 inch on white 8 1/2-by-ll inch paper. No motion, including any memorandum of law, shall exceed 50 pages without leave of the court upon a showing of good cause.

(d)-(f) [No changes]

(g) Appeal; — Rehearing;—Service on Movant Parties. An appeal-may be taken to the appropriate appellate court from the order entered on.the motion as from a final judgment on application for writ of habeas corpus. — All orders denying motions-for postconvietion-relief shall include a-statement that the-movant has the-right to-appeal within 30-days of the rendition of the order. — A-petiiioner may seek a belated- appeal upon the allegation -that the petitioner timely requested -counsel to appeal the order denying petitioner’s motion for — postconviction—relief—and—counsel, through neglect, failed to do so.- The mov-ant may -file-a-motion for rehearing of any order denying a motion under — this rule within 15 days of the date of-service of the order. The clerk of the court shall promptly serve on the movant parties a copy of any order denying a motion for postconvic-tion relief or denying a motion for-rehearing addressing a motion under this rule, noting thereon the date of service by an appropriate certificate of service.

(h) Rehearing. The party may file a motion for rehearing of any final order addressing a motion under this rule within 15 days of the date of service of the final order. A timely filed motion for rehearing shall toll finality of any final order addressing a motion under this rule.

(i) Appeals. An appeal may be taken to the appropriate appellate court from a final order addressing a motion under this rule. All final orders addressing a motion under this rule shall include a statement that the party has the right to appeal within 30 days of the rendition of the final order. All nonfinal orders addressing motions under this rule shall include a statement that “this order is a nonfinal, nonap-pealable order.”

(j) Belated Appeals. Pursuant to the terms and procedures outlined in Florida Rule of Appellate Procedure 9.141(c), a petitioner may seek a belated appeal.

(k) Belated Discretionary Review. Pursuant to the terms and procedures outlined in Florida Rule of Appellate Procedure 9.141(c), a petitioner may seek belated discretionary review.

<¾) (O Habeas Corpus. An application for writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court that sentenced the applicant or that the court has denied the applicant relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of the applicant’s detention.

(m) Frivolous or Malicious Collateral Criminal Pleadings or Motions. A prisoner, who is found by a court to have brought a frivolous or malicious collateral criminal proceeding, or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The prisoner may also be prohibited from filing future pro se pleadings attacking his or her conviction and sentence.

Upon its own motion or on motion of a party, the court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith by issuing an order stating the essential facts constituting the frivolous or malicious nature of the collateral criminal proceeding, requiring the defendant to show cause why the prisoner should not be prevented from bringing further attacks on his or her conviction and sentence, and to explain why he or she is not abusing the legal process. The order shall allow a reasonable time for preparation and response by the prisoner, after service of the order on the prisoner. The court shall direct the clerk of the court to forward a certified copy of the order to show cause to the prisoner.

Upon receipt of the prisoner’s response to the order to show cause, if any, or upon expiration of the time allowed for the prisoner’s response, the court shall determine whether the pleading or paper was frivolous or malicious. If supported by the record, the court shall enter an order with written findings that a motion for postcon-viction relief is frivolous or malicious, preventing the prisoner from bringing further attacks on his or her conviction and sentence, directing the clerk of the court not to accept any further pro se filings or pleadings concerning the subject case, further directing the clerk of the court to summarily reject any further pleadings and papers regarding the case unless that pleading or paper is filed by a member in good standing of The Florida Bar, and that a certified copy of the order be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in Chapter 944, Florida Statutes. The prisoner shall also be served with a certified copy of the written order.

RULE 3.851. COLLATERAL RELIEF AFTER DEATH SENTENCE HAS BEEN IMPOSED AND AFFIRMED ON DIRECT APPEAL.

(a)-(e) [No changes]

(f) Procedure; Evidentiary Hearing; Disposition.

(l)-(7) [No changes]

(8) Appeals. Any party may appeal a final order entered on a defendant’s motion for rule 3.851 relief by filing a notice of appeal with the clerk of the lower tribunal within 30 days of the rendition of the order to be reviewed. Pursuant to the procedures outlined in Florida Rule of Appellate Procedure 9.142, a prisoner under sentence of death may petition for a belated appeal.

(g)-(i) [No changes]

(j-)-B&lat«d Appeals. — Pursuant to the procedures-outlined in Florida Rule-of-Appellate Procedure 9.142(d), a- petitioner may seek a-belated appeal upon the- allegation that the petitioner timely requested counsel-to-appeal-the order denying petitioner’s motion for — postconviction relief and counsel — through-neglect, failed to do SOt

RULE 9.141. REVIEW PROCEEDINGS IN COLLATERAL OR POST-CONVICTION CRIMINAL CASES; BELATED APPEALS; BELATED DISCRETIONARY REVIEW-}.INEFFEC-TIYE-A.-SSISTANCE OF APPELLATE COUNSEL

(a)-(b) [No changes]

(c) Petitions Seeking Belated Appeal or Belated Discretionary Review or Alleging — Ineffective Assistance of Appellate-Counsel.

(1) Applicability. This subdivision governs petitions seeking belated appeals or belated discretionary review in an appellate court.

44)(2) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100, except as modified by this rule.

42X3) Forum. Petitions seeking belated appeal or alleging ineffective-assistance of appellate-counsel review shall be filed in the appellate court to which the appeal was or discretionary review should have been taken. Petitions seeking belated discretionary review-or belated-appeal of a deeision-of-a distric-t-court- of appeal shall be-filed in the supreme-court.

43) (4) Contents. The petition shall be in the form prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts

(A)-(E) [No changes]

(F) the specific acts sworn to by the petitioner or petitioner’s counsel that constitute the alleged ineffective assistance of counsel or basis for entitlement to belated appeal or belated discretionary review, ⅜-cluding in the case-of a petition for belated appeal as outlined below:

(i) A petition seeking belated appeal must state whether the petitioner requested counsel to proceed with the ap-peak and the date of any such request, or if the petitioner was misadvised as to the availability of appellate review or the status of filing a notice of appeal. A petition seeking belated discretionary review must state whether counsel advised the petitioner of the results of the appeal and the date of any such notification, or if counsel misadvised the petitioner as to the opportunity for seeking discretionary review, or

(ii) A petition seeking belated appeal or belated discretionary review must identify the circumstances unrelated to counsel’s action or inaction, including names of individuals involved and date(s) of the occurrence(s), that were beyond the petitioner’s control and otherwise interfered with the petitioner’s ability to file a timely appeal or notice to invoke, as applicable.

44) (5) Time Limits.

(A) A petition for belated appeal or belated discretionary review shall not be filed more than 2 years after the expiration of time for filing the notice of appeal or-notice — to.invoke discretionary jurisdiction from a final order, unless it alleges under oath with a specific factual basis that the petitioner (i) was unaware a notice of appeal or a notice-to- invoke discretionary jurisdiction had not been timely filed or was not advised of the right to an appeal or to-seek discretionary-review pro se was otherwise prevented from timely filing the notice of appeal due to circumstances beyond the petitioner’s control^, and 4⅛) should could not have ascertained such facts by the exercise of reasonable diligence. In no case shall a petition for belated appeal be filed more than 4 years after the expiration of time for filing the notice of appeal.

(B) A petition alleging ineffective-assistance of appellate -counsel on direct review for belated discretionary review shall not be filed more than 2 years after the judgment-and sentence- become-final on direct review expiration of time for filing the notice to invoke discretionary review from a final order, unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the-apneal by counsebunaware such notice had not been timely filed or was not advised of the results of the appeal, or was otherwise prevented from timely filing the notice due to circumstances beyond the petitioner’s control, and that the petitioner could not have ascertained such facts by the exercise of reasonable diligence. In no case shall a petition for belated discretionary review be filed more than 4 years after the expiration of time for filing the notice to invoke discretionary review from a final order.

(C) Time-periods under this subdivision shall-not begin to run prior to January-1,-1997

45} (6) Procedure.

(A) The petitioner shall serve copies a copy of the a petition for belated appeal on the attorney general and state attorney. The petitioner shall serve a copy of a petition for belated discretionary review on the attorney general.

(B)-(D) [No changes]

(d) Petitions Alleging Ineffective Assistance of Appellate Counsel.

(1)Applicability. This subdivision governs petitions alleging ineffective assistance of appellate counsel.

(2) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100, except as modified by this rule.

(3) Forum. Petitions alleging ineffective assistance of appellate counsel shall be filed in the appellate court to which the appeal was taken.

(4) Contents. The petition shall be in the form prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts:

(A) the date and nature of the lower tribunal’s order subject to the disputed appeal;
(B) the name of the lower tribunal rendering the order;
(C) the nature, disposition, and dates of all previous court proceedings;
(D) if a previous petition was filed, the reason the claim in the present petition was not raised previously;
(E) the nature of the relief sought; and
(F) the specific acts sworn to by the petitioner or petitioner’s counsel that constitute the alleged ineffective assistance of counsel.

(5) Time Limits. A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review.

(6) Procedure.

(A) The petitioner shall serve a copy of the petition on the attorney general.

(B) The court may by order identify any provision of this rule that the petition fails to satisfy and, pursuant to rule 9.040(d), allow the petitioner a specified time to serve an amended petition.

(C) The court may dismiss a second or successive petition if it does not allege new grounds and the prior determination was on the merits, or if a failure to assert the grounds was an abuse of procedure.

RULE 9.142. PROCEDURES FOR REVIEW IN DEATH PENALTY CASES

(a) Procedure in Death Penalty Appeals.

(l)-(4) [No changes]

(5) Petitions for Extraordinary Re-lie£ — In-death penalty cases, all petitions for extraordinary relief over which the supreme court has original jurisdiction, including petitions for-writ- of habeas corpus^ shall be filed-simultaneously^-with-the-initial brief in the appeal from the lower tribunal’s order on-the-defendant’s application for relief under Florida Rule of Criminal-Procedure 3.851.

(6) Scope of Review. On direct appeal infe death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.

(b) Petitions for Extraordinary Relief.

(1) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100, except as modified by this rule.

(2) Contents. Any petition filed pursuant to this subdivision shall be in the form prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts

(A) the date and nature of the lower tribunal’s order sought to be reviewed;
(B) the name of the lower tribunal rendering the order;
(C) the nature, disposition, and dates of all previous court proceedings;
(D) if a previous petition was filed, the reason the claim in the present petition was not raised previously;
(E) the nature of the relief sought.

(3)Petitions Seeking Belated Appeal.

(A) Contents. A petition for belated appeal shall include a detailed allegation of the specific acts sworn to by the petitioner or petitioner’s counsel that constitute the basis for entitlement to belated appeal, including whether petitioner requested counsel to proceed with the appeal and the date of any such request, whether counsel misadvised the petitioner as to the availability of appellate review or the filing of the notice of appeal, or whether there were circumstances unrelated to counsel’s action or inaction, including names of individuals involved and date(s) of the occurrence(s), that were beyond the petitioner’s control and otherwise interfered with the petitioner’s ability to file to file a timely appeal.

(B) Time limits. A petition for belated appeal shall not be filed more than 1 year after the expiration of time for filing the notice of appeal from a final order denying rule 3.851 relief, unless it alleges under oath with a specific factual basis that the petitioner

(i) was unaware an appeal had not been timely filed, was not advised of the right to an appeal, was misadvised as to the right to an appeal, or was prevented from timely filing a notice of appeal due to circumstances beyond the petitioner’s control; and
(ii) could not have ascertained such facts by the exercise of due diligence.

In no case shall a petition for belated appeal be filed more than 2 years after the expiration of time for filing the notice of appeal.

(4) Petitions Alleging Ineffective Assistance of Appellate Counsel.

(A) Contents. A petition alleging ineffective assistance of appellate counsel shall include detailed allegations of the specific acts that constitute the alleged ineffective assistance of counsel on direct appeal.

(B) Time limits. A petition alleging ineffective assistance of appellate counsel shall be filed simultaneously with the initial brief in the appeal from the lower tribunal’s order on the defendant’s application for relief under Florida Rule of Criminal Procedure 3.851.

(b) (c) Petition Seeking Review of Nonfinal Orders in Death Penalty Post-conviction Proceedings.

(l)-(ll) [No changes]

fpl (d) Review of Dismissal of Post-conviction Proceedings and Discharge of Counsel in Florida Rule of Criminal Procedure 3.851(i) Cases.

(l)-(2) [No changes]

(d) Petitions Seeking Belated Appeal. A petition for belated-appeal shall not be filed more than-l-year after the expiration of-time-for filing-the-notice-of appeal from a-final — order denying-rule 3.851 relief, unless it alleges-under oath with a specific-factual basis-that-the petitioner

(1) was unaware an appeal had-not-been timely filed- oi-was-not-advised of the-r-ight

(2) should — not-have ascertained.such facts by the exercise- ■of-reasonable diligence.-

      . Rule 3.85l(j), as amended, provided as follows:
      (j) Belated Appeals. Pursuant to the procedures outlined in Florida Rule of Appellate Procedure 9.142(d), a petitioner may seek a belated appeal upon the allegation that the petitioner timely requested counsel to appeal the order denying petitioner's motion for postconviction relief and counsel, through neglect, failed to do so.

        In re Amendments to Fla. Rule of Crim. Pro. 3.851 & Fla. Rule of Appellate Pro. 9.142, 1 So.3d at 164.

      . Amended rule 9.142(d) provided as follows:
      (d) Petitions Seeking Belated Appeal. A petition for belated appeal shall not be filed more than 1 year after the expiration of time for filing the notice of appeal from a final order denying rule 3.851 relief, unless it alleges under oath with a specific factual basis that the petitioner
      (1) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and
      (2) should not have ascertained such facts by the exercise of reasonable diligence.

        In re Amendments to Fla. Rule of Crim. Pro. 3.851 & Fla. Rule of App. Pro. 9.142, 1 So.3d at 164.

      . The Joint Committee is composed of members of each of the aforementioned committees.

      . As submitted by the Joint Committee, the sanction provision appeared in subdivision (0- The Court’s sua sponte amendment to the rule in adding the paragraph addressing belated discretionary review resulted in the redesignation.

      . Subsection (1) of section 944.279 provides in pertinent part as follows:
      At any time, and upon its own motion or on motion of a party, a court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith. A prisoner who is found by a court to have brought a frivolous or malicious suit, action, claim, proceeding, or appeal in any court of this state ... or to have brought a frivolous or malicious collateral criminal proceeding, ... or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The court shall issue a written finding and direct that a certified copy be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09.
      § 944.279(1), Fla. Stat. (2010).

      . Rule 9.141 expressly states that it does not apply in death penalty cases. Fla. R.App. P. 9.141(a). Cases involving the death penalty are governed by rule 9.142.


text:
    Orlando CANETE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4376.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    Rehearing Denied Nov. 10, 2011.
    Orlando Cañete, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

The defendant appeals from a final order summarily denying his petition for writ of habeas corpus. He contends that the circuit court failed to consider the merits of his supplemental motion filed pursuant to Florida Rule of Criminal Procedure 3.850.

We disagree with the defendant. It appears that the circuit court considered the merits of his supplemental motion by “summarily denying” the habeas petition rather than dismissing it as the state recommended. We also have considered the petition on its merits, and we conclude that the circuit court did not err in summarily denying it.

Affirmed.

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


text:
    Roy Lee McDUFFIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4396.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2011.
    Rehearing and Rehearing En Banc Denied Sept. 27, 2011.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Roy Lee McDuffie, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mary G. Jolley and Kelli A. Nielan, Assistant Attorneys General, Tampa, for Appellee.
   PER CURIAM.

Roy Lee McDuffie seeks review of his convictions and sentences for two counts of first-degree murder, one count of robbery with a firearm, and one count of false imprisonment with a firearm. Counsel originally filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Mr. McDuffie filed a pro se brief. Upon review of the record, we ordered supplemental briefing on five issues: (1) whether the trial court abused its discretion by denying Mr. McDuffie’s pretrial motion to test for the presence of DNA on the duct tape that bound one of the victims; (2) whether the trial court abused its discretion by limiting Mr. McDuffie’s cross-examination of witness Ted Teixeira; (3) whether the trial court abused its discretion by denying Mr. McDuffie’s motion for mistrial made after a witness referenced the “first trial”; (4) whether the trial court erred by admitting collateral bad act evidence under the guise of allowing the State to prove motive; and (5) whether the trial court erred by denying Mr. McDuffie’s motion for judgment of acquittal.

We have thoroughly reviewed the extensive record in this case, as well as the briefs filed by counsel, the State, and Mr. McDuffie. Having done so, we affirm Mr. McDuffie’s convictions and sentences. We write only on issue four to explain why the trial court’s error was harmless in this case.

Mr. McDuffie was charged with two counts of first-degree murder, one count of robbery with a firearm, and one count of false imprisonment with a firearm based on events that occurred on October 25, 2002. At that time, Mr. McDuffie was a manager trainee for Dollar General. On the evening of October 25, 2002, he was scheduled to close the store along with Janice Schneider and Dawniell Beauregard. Witnesses placed all three in the store at its 8:00 p.m. closing time. Sometime around 10:30 p.m., Schneider’s husband became concerned when she had not arrived home, and he went to the store. Upon discovering the lights on in the store and Schneider’s car still parked in the lot, he contacted the store manager. When the store manager arrived, he and Schneider’s husband discovered Schneider and Beauregard bound with duct tape in the back room of the store. Both women suffered deep knife wounds and both had been shot. The proceeds from the store safe were missing. Other than the horrific scene in the back room, nothing in the store appeared to be disturbed.

The police subsequently developed Mr. McDuffie as a suspect. In addition to knowing that Mr. McDuffie was the last person seen in the store with both women, the police discovered that Mr. McDuffie, who had been in deep financial straits, was seen in the days after the murders with “wads” of cash. He also purchased a number of money orders and paid a number of delinquent bills.

Ultimately, the State’s theory at trial was that Mr. McDuffie had murdered Schneider and Beauregard so that he could steal the money from the Dollar General safe. To that end, the State introduced evidence that Mr. McDuffie was about to be evicted from his rental home and that his landlord was seeking a judgment against him for unpaid rent. The State also introduced evidence that Mr. McDuf-fie had signed a lease for a new rental residence and promised the new landlord a significant deposit in addition to the first month’s rent. The State called the new landlord to testify that Mr. McDuffie had told him that there had been a fatality in the family, leaving two children without guardians. Mr. McDuffie told the landlord that he wanted to adopt the children so they would not have to go into foster care and that he wanted to be able to move the children into the new home quickly so that they - could get settled in before too long into the school year. The State also introduced evidence that Mr. McDuffie was behind on his child support payments, had high balances on his credit cards, had a very high unpaid cable bill, and had had his car repossessed.

Through other evidence, the State proved that Mr. McDuffie’s story about the fatality in the family was false. In addition, the State introduced the testimony of another Dollar General employee, Carol Hopkins, who testified that Mr. McDuffie had told her that he was working on the evening of October 25 so that he could learn the proper closing procedures before he started at his new store the following week. However, the Dollar General manager testified that Mr. McDuffie was not scheduled to start at his new store for several additional weeks.

In issue four in this appeal, Mr. McDuf-fie contends that the trial court abused its discretion by admitting an extensive amount of evidence concerning his financial condition and the evidence of his two lies, arguing that this was simply improper evidence of collateral bad acts and improper character evidence. On the record before us, we agree that the admission of some of this evidence was improper. However, when considered in light of the record as a whole, we cannot say that the improper admission of this limited evidence was harmful.

As an initial matter, there is no dispute that the State could properly introduce evidence concerning Mr. McDuffie’s financial condition in an effort to show that he had a financial motive to commit the robbery. See, e.g., Foster v. State, 679 So.2d 747, 753 (Fla.1996) (holding that evidence of defendant’s gambling losses was relevant to show motive and intent to commit robberies). Thus, the testimony concerning Mr. McDuffie’s eviction from his current rental house for nonpayment, the deposit and rent requirements of his new rental house, his other financial obligations, and his job status was relevant and admissible to establish his difficult financial condition and possible motive to steal money from the Dollar General and to commit murders to do so.

However, the State also elicited testimony concerning two lies Mr. McDuf-fie told. The first was the landlord’s testimony concerning the lies Mr. McDuffie told him to explain why he needed to move into the rental house so quickly. The second was store employee Carol Hopkins’ testimony concerning Mr. McDuffie’s explanation for being at the store on the day of the murders. None of this testimony was relevant for any purpose except to show that Mr. McDuffie lied to these individuals on these occasions, and it was thus improper during the State’s case-in-chief.

The character of a person accused of crime is not a fact in issue, and the state cannot, for the purpose of inducing belief in his guilt, introduce evidence tending to show his bad character or reputation, unless the accused, conceiving that his case will be strengthened by proof of good character, opens the door to proof by the prosecution that his character in fact is bad.

Robertson v. State, 829 So.2d 901, 912 (Fla.2002) (quoting Jordan v. State, 107 Fla. 333, 144 So. 669, 669 (1932)). Here, the State offered evidence concerning Mr. McDuffie’s lies during its case-in-chief, before Mr. McDuffie placed his character for truthfulness at issue. At that point, the evidence was irrelevant and inadmissible, and the trial court erred by permitting the State to elicit the testimony.

Given this error, the remaining question is whether the error was harmless. “The harmless error test, as set forth in Chapman [v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). As more fully explained:

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Id. at 1139.

Here, the State presented evidence that Mr. McDuffie was the last person seen with both victims when they were alive. He had a financial motive for stealing money from the store, and he had ample opportunity to commit the crimes. He was in dire financial straits before the murders, and he appeared flush with funds afterwards. His version of the events that evening was contradicted by established store policies, and his timeline for the evening was contradicted by two witnesses and a McDonald’s surveillance video. Most critically, his partial palm print was found on the inside of the duct tape binding one of the victims.

It is true that the State’s case had some gaps. The timeline established by the State was contradicted to some extent by evidence of the questionable ability of Mr. McDuffie to still be at the store at 9:45 p.m. but in the McDonald’s at 10:34 p.m. with no blood on him. The State’s insistence that the victims would not break store policy to let someone leave early was contradicted by Carol Hopkins’ testimony that they let her leave early that night. There was unidentified female blood on the floor of the back room of the store, and an unidentified hah' found stuck in the duct tape, both of which the State failed to explain. And the State’s evidence concerning the location of Mr. McDuffie’s partial palm print on the duct tape was significantly impeached, as was some of the State’s evidence concerning Mr. McDuf-fie’s financial condition.

Nevertheless, there is no reasonable possibility on this record that the improper admission of the evidence of the two lies told by Mr. McDuffie contributed to his conviction. This is particularly true since the timeline given by Mr. McDuffie to the police on the night of the murders was contradicted by other undisputed evidence, thus showing the jury by other means that Mr. McDuffie was known to lie. Therefore, while the admission of this evidence was error, it was harmless.

AFFIRMED.

DAVIS, JR., C.A., VTLLANTI, C.C., and WALLACE, D.A., Associate Judges, concur.


author: BLACK, Judge.

text:
    Jonathan CALDWELL, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2158.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 2011.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Jonathan Caldwell appeals the revocation of his probation for lewd and lascivious battery upon an elderly or disabled adult. We affirm without comment the trial court’s finding that Caldwell violated his probation. However, Caldwell argues, the State concedes, and we agree that the trial court erred by failing to hear any argument on sentencing. See Estevez v. State, 705 So.2d 972, 973 (Fla. 3d DCA 1998) (stating a probationer must have an opportunity to be heard regarding what sentence should be imposed and to present mitigating evidence and argue for sentencing alternatives when the trial court has sentencing discretion (citing Black v. Romano, 471 U.S. 606, 614, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985))). Thus, we remand for the limited purpose of a sentencing hearing, at which Caldwell can present mitigating evidence.

Additionally, we remand for the trial court to correct a scrivener’s error in the order revoking probation. The order incorrectly states that Caldwell admitted violating probation and that the court accepted the admission; however, the record shows that the court held a hearing on the violation, that Caldwell contested the fact that he violated, and that the court found a willful and substantial violation. See Neal v. State, 62 So.3d 1277, 1278 (Fla. 2d DCA 2011).

Affirmed in part, reversed in part, and remanded for further proceedings and correction of a scrivener’s error.

KHOUZAM and MORRIS, JJ., Concur.

      . It appears that the trial judge on this case, Judge Thomas S. Reese, retired in 2010. On remand, this issue should be addressed pursuant to Florida Rule of Criminal Procedure 3.700(c)(1).


author: PALMER, J.

text:
    Homer LOVERING, Appellant, v. Leslie C. NICKERSON and the Middlesex Corporation, Appellee.
    No. 5D10-575.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2011.
    Rehearing Denied Oct. 11, 2011.
    Jonathan W. Stidham and Jeffrey R. Sullivan of Stidham & Stidham, P.A., Bar-tow, and Monterey Campbell of Gray Robinson, P.A., Lakeland for Appellant.
    Michael R. D’Lugo, and Richards H. Ford, of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellee.
   PALMER, J.

In this personal injury action, Homer Lovering appeals the final order entered by the trial court granting summary judgment in favor of appellees, Leslie Nicker-son and the Middlesex Corporation, on their affirmative defense of workers’ compensation immunity. Determining that the trial court erred in concluding that Florida’s statutory doctrine of workers’ compensation immunity operates to bar Lovering from asserting negligence claims in this case, we reverse.

Middlesex was performing construction work on the Florida Turnpike pursuant to a contract with Florida’s Department of Transportation, and Nickerson was a heavy equipment operator working for Middlesex in connection with the road project. Middlesex was obligated to relocate sections of barrier wall used on the construction site and sub-contracted with DB Express to provide trucking services to fulfill that obligation. DB Express in turn contracted with Trimmer Trucking to provide the trucking services needed by Mid-dlesex. Trimmer Trucking leased a truck, as well as an unspecified driver/operator, to DB Express. At certain times, that driver/operator was Lovering.

At the time of Lovering’s injury, Nicker-son was operating a front-end loader/forklift on the construction site, using the equipment to load concrete barrier wall sections onto a flatbed tractor trailer that was being driven by Lovering. The complaint explained that, while the concrete barrier wall sections were being loaded, a section fell over and landed on Lovering, causing injuries resulting in the amputation of his legs. Lovering filed a complaint for personal injury against Nickerson and Middlesex.

Nickerson and Middlesex filed a joint answer generally denying liability and asserting several affirmative defenses, including a claim of workers’ compensation immunity. Specifically, Nickerson and Middlesex maintained that, at the time of the accident, Lovering was a statutory employee of Middlesex and, therefore, workers’ compensation immunity applied to bar Lovering’s negligence claims.

Nickerson and Middlesex filed a motion for summary judgment on their workers’ compensation immunity defense. Lover-ing responded by filing a competing motion for summary judgment asserting that workers’ compensation immunity did not apply to bar his negligence claims because, at the time of his accident, Lovering was not a statutory employee of Middlesex.

The trial court entered a written order granting Nickerson and Middlesex’s motion for summary judgment. The order states that the trial court found that Lov-ering was a statutory employee “as defined in Florida Statute 440.01(15)(e)” at the time of his injury and, therefore, Nicker-son and Middlesex were entitled to receive workers’ compensation immunity from Lovering’s negligence claims. The order also states that the trial court found “through reading of Florida Statute 440.02(15)(c)(l) through (4), that the Legislature has intended to include all persons working or performing services on a construction site within the definition of an ‘employee’ ”. This appeal timely followed.

Combined application of sections 440.10 and 440.11 of Florida’s Workers’ Compensation Act operates to provide contractors with immunity from liability in negligence lawsuits filed by injured employees under certain circumstances. As relevant to the instant appeal, section 440.10 of the Florida Statutes requires a contractor to obtain workers’ compensation coverage for all of the employees working on the construction site. See § 440.10(l)(b), Fla. Stat. (2007). Section 440.11 of the Florida Statutes meanwhile provides that, in exchange for the contractor’s statutory obligation to maintain workers’ compensation coverage for the employees on the construction site, the contractor receives immunity from negligence liability for injuries suffered by any employee:

440.11. Exclusiveness of liability
(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death ...

§ 440.11(1), Fla. Stat. (2007). Section 440.02 of the Florida Statutes defines the term employee (generally referred to in the case law as statutory employee), in relevant part, as follows:

440.02. Definitions
When used in this chapter, unless the context clearly requires otherwise, the following terms shall have the following meanings:
[153(c) “Employee” includes:
1. A sole proprietor or a partner who is not engaged in the construction industry, devotes full time to the proprietorship or partnership, and elects to be included in the definition of employee by filing notice thereof as provided in s. 440.05.
2. All persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption as permitted by this chapter, or has otherwise secured the payment of compensation coverage as a subcontractor, consistent with s. 440.10, for work performed by or as a subcontractor.
3. An independent contractor working or performing services in the construction industry.
4. A sole proprietor who engages in the construction industry and a partner or partnership that is engaged in the construction industry.

§ 440.02(15)(c), Fla. Stat. (2007)(emphasis added). Section 440.02(8) of the Florida Statutes (2007) defines the term construction industry as meaning “for-profit activities involving any building, clearing, filling, excavation, or substantial improvement in the size or use of any structure or the appearance of any land.”

The trial court erred in entering summary judgment in favor of Nickerson and Middlesex on their workers’ compensation immunity defense because the evidence of record does not support the conclusion that Lovering was a statutory employee of Middlesex at the time of his accident since he was not working or performing services in the “construction industry.” Accordingly, we reverse the entry of the summary judgment in favor of Nickerson and Mid-dlesex, and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

EVANDER and COHEN, JJ., concur.


text:
    Harry B. OVERTON, III and Overton Consulting, Inc., Appellants, v. Dennis A. KEBBEL and Generations, etc., Appellees.
    No. 5D09-1888.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2011.
    Rehearing and Rehearing En Banc Denied Oct. 20, 2011.
    Eric A. Lanigan, of Lanigan & Lanigan, PL, Winter Park, for Appellants.
    T. Todd Pittenger, of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, for Appellees.
   PER CURIAM.

AFFIRMED. See Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 543 n. 3 (Fla.2004) (“Intentional tort claims such as fraud, conversion, intentional interference, civil theft, abuse of process, and other torts requiring proof of intent generally remain viable either in the products liability context or if the parties are in privity of contract.”); see also Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1223 & n. 4 (Fla.2010) (noting that where “parties are in contractual privity and one party seeks to recover damages in tort for matters arising out of the contract,” the economic loss rule “would not prevent the bringing of an action and recovery for intentional torts, such as, fraud, conversion, intentional interference, civil theft, abuse of process, and other torts requiring proof of intent.” (citing Am. Aviation, 891 So.2d at 543)).

GRIFFIN, SAWAYA and PALMER, JJ., concur.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. HOWARD DINNER, D.C., P.A., a/a/o Denise Chapman, Respondent.
    No. 4D11-469.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.
    Rehearing Denied Nov. 18, 2011.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale and Michael A. Rosenberg of Roig, Tutan, Rosenberg & Zlot-nick, P.A., Deerfield Beach, for petitioner.
    David B. Pakula of David B. Pakula, P.A., Southwest Ranches, for respondent.
   PER CURIAM.

The county court erroneously compelled a State Farm adjuster who resided and worked in Hillsborough County, and who had not been designated as a corporate representative, to attend a deposition in Broward County. See Fla. R. Civ. P. 1.410(e)(2); Fortune Ins. Co. v. Santelli, 621 So.2d 546 (Fla. 3d DCA 1993). The circuit court dismissed State Farm’s petition for writ of certiorari.

Because no “miscarriage of justice” has occurred, we deny this petition for second tier certiorari. See United Auto. Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So.3d 506, 508 (Fla. 4th DCA 2010) (stating that a district court of appeal should grant a second tier petition for writ of certiorari “ ‘only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice’ ”) (emphasis in original) (quoting Custer Med. Ctr. v. United Auto., Ins. Co., 62 So.3d 1086, 1092 (Fla.2010)); Gould v. State, 974 So.2d 441, 446 (Fla. 2d DCA 2007) (observing that a district court of appeal cannot grant a petition for second tier certiorari where the circuit court applied the incorrect law unless such a “departure from the essential requirements of the law constituted a ‘miscarriage of justice’ ”).

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


text:
    Norman SCOTT, Appellant, v. FREMONT INVESTMENT & LOAN, Appellee.
    No. 4D11-1914.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.
    Norman Scott, Wellington, pro se.
    James S. Telepman of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellee.
   PER CURIAM.

In accordance with appellee’s concession of error filed September 12, 2011, we reverse and remand to the trial court for further proceedings.

Reversed and Remanded.

POLEN, GROSS and LEVINE, JJ„ concur.


author: LAWSON, J.

text:
    Arnold Norman FANT, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3299.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2011.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Arnold Fant appeals the denial of his dispositive motion to suppress evidence obtained from a search incident to his arrest on January 10, 2006. He argues that probable cause for that arrest stemmed directly from an illegal stop and search on October 5, 2005, and thus, the evidence seized on January 10 was fruit of the poisonous tree. We agree that the evidence seized from Fant should have been suppressed, and reverse the trial court’s order.

The trial court found that Fant was in a high crime area (known for its drug activity) on October 5, 2005, when police approached him on the property of a small apartment complex to determine if he was trespassing there. The trial court further found that Fant fled as soon as he saw the officers approaching him. Police immediately pursued Fant, caught him, and conducted a pat-down search of his person— finding pills hidden in his socks, that were later confirmed to be controlled substances. When one of these same officers next encountered Fant on January 10, 2006, he arrested Fant (without a warrant) for possession of the narcotics found on his person approximately three months earlier, on October 5, 2005.

We agree with the State that the October 5, 2005 detention (or Terry stop) of Fant was legal under the holding of Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (holding that an individual’s unprovoked flight in a high crime area upon seeing law enforcement officers provides reasonable suspicion justifying a brief detention of the person). However, there were no facts introduced at the suppression hearing which could have supported a finding that police were justified in searching Fant’s person during the October 5 detention.

As explained in Augustus v. State, 773 So.2d 104, 106 (Fla. 5th DCA 2000), “a protective pat down search in connection with an investigatory stop is only allowed if the officer has a reasonable belief that the subject is an armed threat.” See also Dawson v. State, 58 So.3d 419, 422 (Fla. 2d DCA 2011) (“For a weapons pat-down search to be valid, an officer must identify objective facts indicating that the person detained is armed and dangerous.”) (citation omitted); Daniels v. State, 543 So.2d 363, 365 (Fla. 1st DCA 1989) (“If an officer validly stops and detains an individual, and has probable cause to believe that the individual seized is armed with a dangerous weapon and poses a threat to the officer or any other person, the officer may search the individual to the extent necessary to disclose the weapon.”) (citation omitted); also cf. § 901.151(5), Fla. Stat. (2010) (‘Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon.”).

In Wardlow, the officers’ pat-down search of that defendant appears to have been justified based upon the nature of the high crime area (“an area [of Chicago] known for heavy narcotics trafficking ... [usually crowded with] lookouts and customers”) and upon the officer’s testimony that “in his experience it was common for there to be weapons in the near vicinity of narcotics transactions.” 528 U.S. at 121—22, 120 S.Ct. 673. The State elicited no similar testimony in the suppression hearing in this case, and offered no other evidence indicating that the officers had an objective reason to believe that Fant was armed at the time of the detention. Accordingly, we find that Fant was searched during the October 5 detention in violation of his Fourth Amendment rights. Because the pills illegally found on and seized from Fant on October 5 served as the only basis for the officer’s warrantless arrest and search of Fant on January 10, 2006, the items seized on January 10, 2006, must also be suppressed. See, e.g., Hatcher v. State, 834 So.2d 314, 318 n. 4 (Fla. 5th DCA 2003) (explaining that the “fruit of the poisonous tree doctrine ... ‘forbids the use of evidence in court if it is the product or fruit of a search or seizure ... earned out in violation of constitutional rights.’”) (quoting Craig v. State, 510 So.2d 857, 862 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988)).

We note that the State is in many cases able to avoid application of the exclusionary rule if a later seizure of evidence is sufficiently attenuated by time and “intervening circumstances” from an earlier constitutional violation that application of the exclusionary rule would serve no meaningful purpose. See State v. Frierson, 926 So.2d 1139, 1143 (Fla.2006) (citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). However, the State did not argue the Brown factors on appeal in this case as a basis for denial of the suppression motion — but instead chose to rest on its argument that the original detention and search were legal.

Accordingly, we reverse the judgments of conviction entered following Fant’s no contest plea in this case, and remand with directions that Fant’s motion to suppress be granted.

REVERSED AND REMANDED WITH DIRECTIONS.

GRIFFIN, J„ and ZAMBRANO, R.A., Associate Judge, concur.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


text:
    Raymond Glenn BARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3606.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2011.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Barnett appeals from a restitution order, contending that the trial court erred by applying the wrong measure of damages in determining the amount of restitution to be paid for the victim’s damaged and destroyed property. We agree. Absent special circumstances, the correct measure of damages is fair market value, not replacement value. See J.D.H. v. State, 931 So.2d 241 (Fla. 5th DCA 2006); Walters v. State, 888 So.2d 150 (Fla. 5th DCA 2004); Ibrahim v. State, 866 So.2d 749 (Fla. 5th DCA 2004); J.F.H. v. State, 849 So.2d 1151 (Fla. 5th DCA 2003).

REVERSED AND REMANDED FOR NEW RESTITUTION HEARING.

MONACO, EVANDER and COHEN, JJ., concur.


text:
    Arthur WAGNER, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3231.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Arthur Wagner, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Cf. Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that the extraordinary writ of habeas relief cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Curtis J. GRAHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1673.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Curtis J. Graham, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The circuit court shall rule on the pending amended motion for relief pursuant to rule 3.850, Florida Rules of Criminal Procedure, within a reasonable time, not to exceed 60 days from issuance of mandate in this cause. Because we are confident that the circuit court will issue a ruling, we withhold issuance of the formal writ.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Lucia M. ESPINAL, Appellant, v. LNV CORPORATION, Appellee.
    No. 5D11-1648.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2011.
    Lucia M. Espinal, Kissimmee, pro se.
    Allison D. Thompson, Tampa, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

SAWAYA, MONACO, and JACOBUS, JJ., concur.