author: LaROSE, Judge.

text:
    In re FORFEITURE OF: 2006 CHRYSLER 4-DOOR, IDENTIFICATION NO. 2C3KA53GX6H258059. David Gee, Sheriff of Hillsborough County, Appellant, v. Kale Gainous, Appellee.
    No. 2D08-1900.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.

      Christopher E. Brown, Tampa, for Appellant.
    Joseph C. Bodiford, Tampa, and Octavio Gomez, Tampa, for Appellee.
   LaROSE, Judge.

David Gee, the Hillsborough County Sheriff, appeals the trial court’s order granting final summary judgment in favor of Kale Gainous, dismissing a forfeiture action and directing that a 2006 Chrysler automobile be returned to Mr. Gainous. We have jurisdiction, see Fla. R.App. P. 9.030(b)(1)(A), and reverse.

The forfeiture proceeding stems from Mr. Gainous’s 2007 arrest and subsequent conviction for driving under the influence (DUI) and failure to submit to a DUI test. Mr. Gainous had two prior DUI convictions. His license was suspended and he previously refused to submit to a DUI test. Thus, his 2007 DUI was a third-degree felony and the failure to submit to a DUI test was a first-degree misdemeanor. See §§ 316.193(2)(b)(l), 316.1932, 316.1939(1), Fla. Stat. (2006).

Pursuant to the Florida Contraband Forfeiture Act (the Act), the Sheriff seized Mr. Gainous’s automobile. After an adversarial preliminary hearing, the trial court found probable cause that the automobile was used in violation of the Act. See §§ 932.701-.707 and § 322.34(9), Fla. Stat. (2006). The latter statute provides that:

A motor vehicle that is driven by a person under the influence of alcohol or drugs in violation of s. 316.193 is subject to seizure and forfeiture under ss. 932.701-932.707 and is subject to liens for recovering, towing, or storing vehicles under s. 713.78 if, at the time of the offense, the person’s driver’s license is suspended, revoked, or canceled as a result of a prior conviction for driving under the influence.

§ 322.34(9)(a).

Mr. Gainous moved for summary judgment. He argued that the forfeiture of his automobile violated the Excessive Fines Clause of the Eighth Amendment. The Sheriff opposed the motion. The trial court valued the automobile at approximately $17,000. It then held that the forfeiture violated the Excessive Fines Clause and granted a summary judgment to Mr. Gainous.

The trial court reasoned that, even if forfeiture served a primarily remedial function, it was being used here to exact a punishment. The trial court then noted that the actual sentence imposed on Mr. Gainous included a $1000 fine. See § 775.083(l)(c), Fla. Stat. (2006). The trial court calculated that the forfeiture “would equate to an additional fine that is more than seventeen (17) times the fine that was actually imposed and more than three (3) times the fine of what could have statutorily been imposed for a third-degree felony.”

We review the trial court’s summary judgment de novo. See United States v. Bajakajian, 524 U.S. 321, 336, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” Id. at 334, 118 S.Ct. 2028 (citing Austin v. United States, 509 U.S. 602, 622-23, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993)). Sanctions such as forfeitures of vehicles used in crimes that cannot be characterized as serving solely a remedial purpose but that also punish are subject to the limitations of the Excessive Fines Clause. Austin, 509 U.S. at 621-22, 113 S.Ct. 2801. A punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportionate to the gravity of a defendant’s offense. Bajakajian, 524 U.S. at 324, 118 S.Ct. 2028.

In Bajakajian, the defendant failed to report the transport of currency out of the country; he forfeited almost $350,000. Id. at 337, 118 S.Ct. 2028. The Court explained that it was legal to transport the cash out of the United States, so long as the transport was reported. Notably, the forfeited money was not connected with money laundering, tax evasion, or drug trafficking. Id. at 338, 118 S.Ct. 2028. The Court held that the forfeiture was grossly disproportionate to the gravity of the offense. Id: at 338-40, 118 S.Ct. 2028.

We must agree with the trial court that the forfeiture here constituted a punishment and, thus, was subject to a proportionality analysis. See Busbee v. State Div. of Ret., 685 So.2d 914, 917-18 (Fla. 1st DCA 1996) (explaining that Excessive Fines provisions are only implicated if the “fine” is a “punishment”) (citing In re Forfeiture of 1990 Chevrolet Blazer, 684 So.2d 197 (Fla. 2d DCA 1996) (explaining that the purpose of the proportionality test is to determine if forfeiture is excessive in relation to the crime for which the owner is being punished; applying Excessive Fines Clause to forfeiture under the Florida Contraband Forfeiture Act)). Ba-jakajian identifies the factors to measure proportionality: (1) whether the defendant falls into the class of persons at whom the criminal statute was principally directed; (2) other penalties authorized by the legislature or sentencing commission; and (3) the harm caused by the defendant. 524 U.S. at 337-40,118 S.Ct. 2028.

Applying these factors, we conclude that the forfeiture of Mr. Gainous’s automobile was not grossly disproportionate to his repeated DUI and related offenses. Mr. Gainous fell into the class of persons at whom the statute was directed. Comparing the gravity of Mr. Gainous’s offenses with the amount of the forfeiture does not demonstrate gross disproportion-ality. Although the amount is almost three times the maximum fíne allowed for a third DUI ($5000), Mr. Gainous also committed the first-degree misdemeanour of failure to submit to testing, which carried a fine of up to $1000. See § 775.083(l)(c) and (d). Moreover, Mr. Gainous’s offense of driving with a suspended or revoked license can be punished by a fine of up to $500. See § 322.34(2)(a), Fla. Stat. (2006); § 775.083(l)(e). And, we cannot ignore the public safety concerns posed by Mr. Gainous’s offenses; he had committed three DUIs in four years.

In People v. One 2000 GMC VIN SGNFK16T2YG169852, 357 Ill.App.3d 873, 293 Ill.Dec. 854, 829 N.E.2d 437 (2005), the court explained that Illinois’ forfeiture statute provided for seizure and forfeiture where the owner’s driving privileges had previously been suspended after an arrest for DUI and refusal to submit to testing, facts similar to those before us. The court considered the offense with reference to the objective of keeping alcohol-impaired drivers off the road. Id. 441. Weighing the gravity of the offense to the $28,000 vehicle forfeiture, the Illinois court saw no violation of the Excessive Fines Clause. Id. at 442-43.

We also find support in Lukkason v.1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 803 (Minn.Ct.App.1999). There, forfeiture of the driver’s $11,500 truck did not violate the Excessive Fines Clause in light of the serious risks associated with multiple DUI related occurrences, where the maximum fine was $3000. Id. at 808-09.

We also note that the imposition of double, treble, or quadruple damages to deter and punish historically have been upheld, although there is no bright-line ratio. See generally State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 424-26, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (explaining that courts, in context of punitive damages, must ensure that the measure of punishment is both reasonable and proportionate based upon the facts and circumstances of the case); Dep’t of Envtl. Prot. v. Zabielinski, 785 So.2d 517 (Fla. 3d DCA 2000) (holding that forfeiture of $60,000 vessel for using a false name and address on certificate of title of vessel constituted an excessive fine under the Eighth Amendment where circumstances showed that the third-degree felony, though a serious crime, was not as grave as other offenses and the $60,000 amount was more than eleven times the amount of the $5000 fine that could have been imposed).

We reverse the final summary judgment entered in favor of Mr. Gainous and remand for further proceedings.

CASANUEVA and SILBERMAN, JJ., concur.

      . "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Amend. VIII, U.S. Const. The Florida Constitution also bans excessive fines. Art. I, § 17, Fla. Const. The parties agree that the Eighth Amendment guides our analysis. The Fourteenth Amendment to the U.S. Constitution extends the Eighth Amendment to the States. See Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433-34, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)).


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Clement Lee YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3263.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.
    Clement Lee Young, pro se.
   ALTENBERND, Judge.

Clement Lee Young appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to two grounds without discussion but reverse for further proceedings as to the final ground.

Mr. Young allegedly committed a robbery and an attempted robbery in Immok-alee, Florida, on May 23, 2004. The incident involved a purse snatching and an attempted purse snatching. The police reports indicate that an eyewitness could identify Mr. Young by name and knew where he went after the offenses.

He was charged with robbery as a second-degree felony and attempted robbery as a third-degree felony. Because of his prior record, he faced the possibility of a forty-year term of imprisonment with a minimum mandatory sentence of thirty years’ incarceration as a violent career criminal. See § 775.084(4)(d), Fla. Stat. (2003). After the jury was empaneled, Mr. Young agreed to a guilty plea in exchange for a sentence that would be capped at the thirty-year minimum mandatory term. The record suggests that there may have been a possibility of a reduction in the sentence in exchange for substantial assistance in a murder investigation but that this possibility did not evolve to Mr. Young’s benefit. At the sentencing hearing, the State established the predicate offenses for sentencing as a violent career criminal, and Mr. Young received the agreed-upon maximum sentence of thirty years’ imprisonment.

In a timely motion for postconviction relief filed pursuant to rule 3.850, Mr. Young claims that his lawyer was ineffective because he gave Mr. Young affirmative misadviee to convince him to enter into the plea. He claims that his lawyer convinced him to enter the plea by informing him that he would face a mandatory life sentence if he went to trial and was found guilty. In jail, prior to sentencing, one of the prisoners told him that this was incorrect. Between the time of the plea and the sentencing hearing, Mr. Young claims that he filed a pro se motion to withdraw his plea. He claims that he never would have pleaded guilty if he had realized that he was not facing the possibility of a life sentence. He also claims that he was misinformed about the thirty-year minimum mandatory sentence.

In denying this claim, the trial court has attached the transcripts from the plea hearing and the sentencing hearing. These transcripts make it clear that Mr. Young was fully advised of the fact that he faced a mandatory minimum sentence of thirty years’ imprisonment. These transcripts, however, do not refute his claim that he was induced to plead because he was informed by his attorney that he was facing a life sentence if he did not plead guilty. The attachments to the order on appeal do not refute Mr. Young’s claim, and such a claim of affirmative misadviee of counsel can be an appropriate claim for postconviction relief. See Smith v. State, 826 So.2d 322 (Fla. 2d DCA 2002). Accordingly, we reverse and remand for further proceedings as to this claim.

Affirmed in part, reversed in part, and remanded.

WHATLEY and CASANUEVA, JJ., Concur.


author: NORTHCUTT, Chief Judge.

text:
    L.R.L., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2418.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

L.R.L. appeals a restitution order following his delinquency adjudication for grand theft of a motor vehicle. He challenges the $2500 awarded for items that were inside the vehicle at the time it was stolen. We reverse.

This case involves the theft of a truck from the parking lot of a construction company. No one saw the theft, but the police were notified when the stolen vehicle was spotted on the road several days later. L.R.L. was the driver and was apprehended. He later admitted that he knew the truck was stolen but denied that he was the one who stole it from the parking lot.

At the restitution hearing, the victim testified about damage to the truck. L.R.L. does not challenge the amount awarded for this damage. The victim also testified about items that were in the truck at the time it was stolen-technical drawings, a laptop, and a camera. L.R.L. objected to paying restitution for these items. He argued then, as he does on appeal, that the State failed to offer any evidence connecting him to the loss of these items. We agree.

The statute applicable to juveniles provides that a child may be ordered to pay restitution “for any damage or loss caused by the child’s offense.” § 985.437(2), Fla. Stat. (2007). The statute applicable to adults provides that restitution is properly awarded for “[djamage or loss caused directly or indirectly by the defendant’s offense” and “[djamage or loss related to the defendant’s criminal episode.” § 775.089(l)(a), Fla. Stat. (2007). The courts have treated the two restitution statutes in a similar fashion. T.J.N. v. State, 977 So.2d 770, 771 n. 1 (Fla. 2d DCA 2008).

Here, there was no evidence that the loss of items inside the vehicle was caused directly or indirectly by L.R.L.’s offense, nor was there evidence that the loss was related to his criminal episode. L.R.L. testified that the items were not in the truck when he received it. His grand theft conviction was based on his knowing possession of stolen property; the State introduced no evidence to show that L.R.L. was the actual thief. “[I]f a defendant possesses property that he knows is stolen, he can be convicted of theft.” M.D.S. v. State, 982 So.2d 1282, 1284 (Fla. 2d DCA 2008).

The State presented no evidence that L.R.L. was ever in possession of the items missing from the truck after it was recovered. Thus, we conclude that the court erred in awarding $2500 in restitution for these items. See Crosby v. State, 637 So.2d 341 (Fla. 2d DCA 1994) (concluding that State failed to connect victim’s loss of cattle to defendants’ criminal acts); Dyer v. State, 622 So.2d 1158 (Fla. 5th DCA 1993) (reversing restitution award for ring missing from stolen vehicle when State failed to establish that loss of ring was connected to defendant’s theft of vehicle); Moore v. State, 623 So.2d 842 (Fla. 5th DCA 1993) (reversing restitution award for tools lost from stolen truck when defendant testified that he bought stolen truck but denied that tools were inside); cf. DeLong v. State, 638 So.2d 1054 (Fla. 2d DCA 1994) (distinguishing Moore and affirming restitution for personal items inside stolen vehicle when vehicle was recovered within a few hours of theft and defendant never testified that the items were not in the car when he took possession). Accordingly, we reverse the award of $2500 in restitution. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded.

FULMER and KHOUZAM, JJ., Concur.


text:
    Freddick Lamark WOODSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2316.
    District Court of Appeal of Florida, Second District.
    April 22, 2009.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Freddick Woodson appeals the revocation of his probation for committing a new offense. The trial court sentenced him to five years in prison. We affirm. In doing so, we reject without discussion Mr. Wood-son’s suggestion that he was not properly advised of his probationary terms. See State v. Green, 667 So.2d 959, 960-61 (Fla. 2d DCA 1996) (holding that due process does not require defendant to receive verbal notice of standard probation conditions because all persons have constructive notice of state’s criminal statutes). We write briefly to explain that Mr. Woodson received due process at his revocation hearing.

“Due process requires that the State prove an alleged violation of probation at a hearing or that the defendant enter a knowing admission to a violation before the trial court revokes the defendant’s probation.” Balsinger v. State, 974 So.2d 592, 593 (Fla. 2d DCA 2008). Under section 948.06(2)(a), Florida Statutes (2007), the trial court must advise the probationer of the alleged violation. Balsinger, 974 So.2d at 593. Here, the probation officer did not testify, a circumstance that the trial court recognized as not “normal.” Nevertheless, our record reflects sufficient evidence to revoke Mr. Woodson’s probation. And, based on the testimony presented, there can be no question but that Mr. Woodson knew why the State sought revocation of probation. Mr. Woodson made no objection to not being specifically advised of the alleged violation at the start of the hearing. See § 924.051(3), Fla. Stat. (2007); Insko v. State, 969 So.2d 992, 1001 (Fla.2007) (holding that litigant must object at trial to preserve error for review).

Despite our affirmance, we remand for entry of a written order specifying the conditions of probation that Mr. Woodson violated.

Affirmed and remanded.

SILBERMAN and KELLY, JJ., Concur.


text:
    Tony YOUNGBLOOD, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-372.
    District Court of Appeal of Florida, Second District.
    April 22, 2009.

      James Marion Moorman, Public Defender, and William V. Pura, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Tony Youngblood appeals his judgment and sentence of twelve years’ incarceration for trafficking in methamphetamine in case number 06-CF-000484. The judgment and sentence were entered after he pleaded nolo contendere, specifically reserving the right to appeal the denial of his motion to suppress statements he made during a videotaped interrogation conducted by law enforcement. Because law enforcement officers did not cease communications with Mr. Youngblood after he invoked his right to counsel, but instead continued on a course designed to convince him to reconsider his invocation of his constitutional right in order to protect his girlfriend, we conclude that his subsequent decision to waive his right to counsel was involuntary. Accordingly, the trial court erred in failing to grant the motion to suppress the statements, and we must reverse Mr. Young-blood’s judgment and sentence for trafficking in methamphetamine.

In August 2006, officers of the De-Soto County Sheriffs Office performed a search of Mr. Youngblood’s home after arresting him on several outstanding warrants. In one bedroom of the home, the officers discovered a quantity of methamphetamine. Several days later, two officers conducted a custodial interrogation of Mr. Youngblood. At the beginning of this interrogation, one officer advised Mr. Youngblood of his Miranda rights. The following exchange then took place:

Q. Having these rights in mind, do you wish to talk to us without your attorney?
A. No.
Q. Okay. All right.... What’s the name of your attorney?
A. Rios.
Q. Who?
A. Rios.

We agree with Mr. Youngblood that this exchange shows his unequivocal invocation of his right to counsel. In response to questioning, Mr. Youngblood clearly expressed his desire to remain silent until his attorney was present.

As the Supreme Court explained in Miranda, once “the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” 384 U.S. at 473-74, 86 S.Ct. 1602. After a suspect invokes his or her Miranda rights, police officers are prohibited from engaging in words or actions that the officers “should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island, v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnote omitted).

Rather than terminate the interrogation, the officers in this case remained in the interrogation room while waiting for another officer to arrive to transport Mr. Youngblood back to the jail. The officers continued to discuss the case and their desire to speak with Mr. Youngblood. They suggested to Mr. Youngblood that it might help his girlfriend avoid criminal charges if he accepted responsibility for the narcotics found at his house. Although the recording of this poition of the interrogation is rather garbled, one of the two officers in the interrogation room stated:

Q. No. We’re trying to figure out (inaudible) per se trying to figure out your girlfriend’s charges, about (inaudible) Bill told me that that it’s (inaudible) said that she had nothing to do with it. And if that what was the case [sic], then would (inaudible) to that affect [sic]. But (inaudible).

One of the officers went on to explain:

Q. I’ll be honest with you, Tony, the biggest thing we were going to ask you about today was the (inaudible) found at your house. (Inaudible)— deals?
A. (Inaudible)—
Q. (Inaudible) house, that’s what we’re talking about. That’s what you’re currently being charged with today (inaudible) done to have her if it was used, then if this was yours, then we — then it would actually help her to get the charges (inaudible).
(Inaudible) — convince me that she didn’t have some knowledge — knowledge of the paraphernalia and the meth that was in the living room, (inaudible) bedroom.

It is undisputed that, having suggested to Mr. Youngblood that he could help his girlfriend avoid criminal charges, the officers re-advised Mr. Youngblood of his Miranda rights and asked if he was willing to speak with them. At that point, Mr. Youngblood agreed to speak with the officers, who confirmed with Mr. Youngblood that they were changing the Miranda form to reflect his waiver of his rights. Mr. Youngblood then took responsibility for the trafficking amount of methamphetamine that was found in a bedroom in the house.

The State contends that, having initially invoked his Miranda rights, Mr. Youngblood knowingly and intelligently chose to forego the assistance of counsel and voluntarily confessed to the crime. We disagree. The State is essentially arguing that the conversations with Mr. Youngblood after he initially invoked his right to counsel were not “interrogation” into the crime, but rather a persuasive discussion on the separate subject of whether he was prudent to decline to discuss the matter with these officers without further delay.

Where a confession is obtained after the administration of Miranda warnings, the State bears a “heavy burden” to demonstrate that the defendant knowingly and intelligently waived his or her privilege against self-incrimination and the right to counsel. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Fare v. Michael C., 442 U.S. 707, 724, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); Miranda, 384 U.S. at 475, 86 S.Ct. 1602; W.M. v. State, 585 So.2d 979, 981 (Fla. 4th DCA 1991). Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (quoting Fare, 442 U.S. at 725, 99 S.Ct. 2560). Thus, “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” Miranda, 384 U.S. at 476, 86 S.Ct. 1602. The issue of voluntariness is ultimately a legal, rather than a factual, question. See Ramirez v. State, 739 So.2d 568 (Fla.1999).

Here, Mr. Youngblood agreed to speak with law enforcement only after the officers suggested that he might help them “figure out [his] girlfriend’s charges” by taking responsibility for a quantity of methamphetamine found in his house. The officers’ statements suggested to Mr. Youngblood that his girlfriend could be charged if he did not take responsibility for the narcotics. We recognize that similar tactics, if undertaken after a suspect has voluntarily waived his or her Miranda rights, may sometimes be insufficient to render a suspect’s confession inadmissible. See, e.g., State v. Walter, 970 So.2d 848, 851-52 (Fla. 2d DCA 2007). In this case, however, Mr. Youngblood had invoked his Miranda rights, and the statements of the law enforcement officers amounted to continued interrogation. Mr. Youngblood did not voluntarily reinitiate contact with law enforcement, but rather was effectively pressured into waiving his constitutional rights. We conclude that Mr. Young-blood’s waiver of his Miranda rights under these circumstances was not voluntary.

Because Mr. Youngblood invoked his Miranda rights and did not thereafter voluntarily waive those rights, the trial court' should have suppressed the challenged statements. Accordingly, we reverse the conviction and sentence for trafficking in methamphetamine.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and SILBERMAN, JJ„ Concur.

      . Mr. Youngblood’s negotiated plea involved charges filed in five other informations, as well as two additional counts in case number 06-CF-000484. This opinion does not affect any of the judgments or sentences imposed on the other charges.

      . See Fla. R.App. P. 9.140(b)(2)(A)(i) (allowing a defendant who enters a guilty or no contest plea to "expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved”).

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

      . The State has not contested the content of the recorded statement. Given that Mr. Youngblood’s request for an attorney is unequivocal on the record, the poor quality of the tape makes the State’s argument more difficult because the State has the burden of demonstrating a knowing and voluntary waiver of counsel.


text:
    Dewey M. COUNCIL, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-614.
    District Court of Appeal of Florida, Second District.
    April 22, 2009.

      James Marion Moorman, Public Defender, and Christopher Desrochers, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Dewey M. Council appeals his convictions and sentences imposed after the trial court denied his motion to withdraw plea. Mr. Council previously pleaded no contest to obstruction of justice, disorderly conduct, and failure to report and reregister as a sex offender. The trial court should have appointed conflict-free counsel for Mr. Council before summarily denying the motion. The State concedes error. We reverse.-

Mr. Council was arrested in early 2007. Later in the year, obviously dissatisfied with his court-appointed lawyer, he wrote to the trial judge asking to be released on bond and assigned “a street lawyer that will fight for me....” Our record reflects that Mr. Council’s lawyer told him that there was no defense to the sex offender charges. Because he was visiting from out-of-state at the time of his arrest, Mr. Council claims that he was unaware of his reporting and registration obligations in Florida.

In early 2008, the trial court conducted a Nelson hearing and, consistent with the advice Mr. Council received from his lawyer, stated that failure to register was a strict liability crime. The trial court refused to appoint new counsel. Faced with trial, Mr. Council accepted the State’s plea offer. The trial court sentenced him to over thirty months in prison. Within a few days, Mr. Council’s lawyer moved to withdraw the plea. Allegedly, the lawyer coerced Mr. Council to plead.

At' the hearing on the motion, Mr. Council’^. lawyer moved to withdraw and asked for the appointment of conflict-free counsel. Instead, the trial court ruled that the motion was facially insufficient because the allowable grounds for plea withdrawal did not include coercion. See Fla. R.Crim. P. 3.170(i) (allowing motion to withdraw plea after sentencing only upon grounds specified in Fla. R.App. P. 9.140(b)(2)(A)(ii)(a)-(e)). But, “[cjoercion by counsel may render a plea involuntary.” Simmons v. State, 485 So.2d 475, 476 (Fla. 2d DCA 1986). An involuntary plea is a ground for withdrawal under rule 9.140(b)(2)(A)(ii)(e).

“ ‘Where a defendant seeks to withdraw his plea on the ground that it was coerced by his attorney, the trial court must either appoint conflict-free counsel or permit the defendant the opportunity to secure the same and, then, conduct an evidentiary hearing on the motion to withdraw plea.’ ” Brown v. State, 835 So.2d 402, 403 (Fla. 2d DCA 2003) (quoting Lingenfelser v. State, 734 So.2d 472, 472-73 (Fla. 4th DCA 1999)); see also Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003). Accordingly, the trial court should have appointed conflict-free counsel to represent Mr. Council and to adopt or revise the motion, which was drafted by a lawyer with whom Mr. Council had a conflict. See Tuhey v. State, 972 So.2d 1029, 1030 (Fla. 4th DCA 2008) (holding defendant entitled to appointment of conflict-free counsel to assist with preparation of facially sufficient motion to withdraw plea).

The trial court also observed that the plea form and the plea colloquy refuted Mr. Council’s claim that his plea was coerced by his lawyer’s misadvice about the sex offender charge. However, neither conclusively refutes a claim that the lawyer coerced a plea by affirmatively mi-sadvising Mr. Council about the law. See Smith v. State, 826 So.2d 322, 323 (Fla. 2d DCA 2002). Both his lawyer and the trial court appear to have misadvised Mr. Council. “[A]t a minimum[,] ‘actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under [the sexual offender registration statutes] can stand.’ ” State v. Giorgetti, 868 So.2d 512, 520 (Fla.2004) (quoting Lambert v. Cal., 355 U.S. 225, 229, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957)). Therefore, we reverse and remand for appointment of conflict-free counsel and for the trial court to reconsider the merits of Mr. Council’s motion to withdraw plea.

Reversed and remanded.

SILBERMAN and KELLY, JJ„ Concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    James BAIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1640.
    District Court of Appeal of Florida, Second District.
    April 22, 2009.
   GALLEN, THOMAS M., Associate Senior Judge.

James Bain appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.858. We reverse and remand for an evidentiary hearing.

After a jury trial in 1974, Bain was convicted of rape, burglary with an assault, and kidnapping. He was sentenced to life in prison. He filed the instant rule 3.853 motion in 2006. In his motion, Bain sought DNA testing of the victim’s underwear and pajamas which were allegedly introduced by the State at trial because they contained Bain’s blood, saliva, and semen. Bain argued that DNA testing would prove that he is innocent of the crimes for which he was convicted. He claimed that he was partying with his friends on the night of the offense and was nowhere near the victim’s residence and that he used an alibi defense at trial. Bain contended that the victim was coerced into identifying him as the perpetrator.

The postconviction court denied Bain’s motion as untimely. He appealed, and this court reversed because “no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005.” Bain v. State, 963 So.2d 913, 914 (Fla. 2d DCA 2007). This court directed the postconviction court to order the State to respond to the motion and to hold a hearing if necessary. Id.; see also Fla. R.Crim. P. 3.853(c)(2).

On remand, the State responded that certain physical exhibits (consisting of two pairs of trousers and two pairs of shorts) remain in the circuit court’s custody. However, the State contended that the motion is barred by the doctrine of laches because the trial transcript in the case has been long since destroyed and due to the destruction of the trial transcript, it is unclear whether the source of the physical evidence can be identified. The State also asserted that the arresting agency retains no records or physical exhibits. The State contended that even though rule 3.853 provides no deadline for seeking DNA testing, the State would be prejudiced by any DNA testing because it would be unable to reconstruct the over thirty-year-old case because the witnesses may not be located, their recollections would be substantially diminished by the inordinate passage of time, and records that could be used to refresh their recollections are unobtainable. The State also argued that the motion should be denied on the merits because the surviving records show that there is no reasonable probability that the DNA evidence would have resulted in an acquittal.

The postconviction court found Bain’s motion to be “facially sufficient as a matter of law.” The postconviction court also found the State’s arguments to be “well taken and adopt[ed]” them.

“Laches is sustainable in a criminal case where there has been both a lack of due diligence on the defendant’s part in bringing forth the claim and prejudice to the State.” Felder v. State, 842 So.2d 979, 980 (Fla. 2d DCA 2003) (citing Wright v. State, 711 So.2d 66, 67 (Fla. 3d DCA 1998)). However, the “ ‘[application of the doctrine [of laches] often involves factual issues that are not properly resolved without an evidentiary hearing.’ ” Wilson v. State, 868 So.2d 654, 656 (Fla. 2d DCA 2004) (first alternation in original) (quoting Love v. State, 814 So.2d 475, 478 (Fla. 4th DCA 2002)); see also Omasta v. State, 805 So.2d 846, 847 (Fla. 2d DCA 2001) (holding that evidentiary hearing was required to determine whether postconviction motion was barred by the doctrine of laches). In the instant case, the postconviction court erred in denying Bain’s motion on the basis of the doctrine of laches without first conducting an evidentiary hearing, especially in light of the State’s assertion that the trial transcripts do not exist but that certain other records and evidence do still exist. See Love, 814 So.2d at 478 (holding that evidentiary hearing should be held on state’s claim that laches bars postconviction motion because no transcripts of the plea proceeding exist).

We decline to reach the merits of Bain’s motion based on the limited record before us.

Accordingly, we reverse the postconviction court’s order of denial and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WHATLEY and DAVIS, JJ„ Concur.


author: MAY, J. TAYLOR, J.,

text:
    Javier Enrique GONZALES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4876.
    District Court of Appeal of Florida, Fourth District.
    April 22, 2009.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for felony DUI, possession of cocaine, resisting without violence, and battery. He argues the trial court erred in denying his motion to sever the possession of cocaine charge .from the felony DUI charge. We disagree and affirm.

A passing motorist discovered the defendant slumped over the steering -wheel of his car, unconscious, in an intersection at around 4:00 a.m. The motorist observed the defendant release the brake and idle forward after she sounded her car horn. She positioned her vehicle in front of the defendant’s car to prevent him from going further down the road. She and another motorist were barely able to wake the defendant by honking, yelling, and banging on his windows. Although neither smelled alcohol on the defendant’s breath, one thought he remembered the defendant had admitted he had been drinking.

A Palm Beach County Sheriffs deputy again awoke the defendant upon his arrival. When he asked the defendant where he was, the defendant wrongly replied that he was in Fort Myers. The defendant’s actions were very slow and unresponsive, his face was flushed, and his eyes red and bloodshot. The deputy concluded the defendant was impaired.

The deputy asked the defendant if he had any medical conditions. The defendant replied, “No, I’m just f-ed up.” Unable to maintain his balance without stumbling, the defendant refused to perform a roadside sobriety test. Detecting the smell of alcohol, the deputy arrested him for DUI. The deputy then discovered cocaine in the defendant’s pocket. While awaiting the administration of a breathalyzer test, the defendant became combative and hit the deputy.

The State charged the defendant with felony DUI, possession of cocaine, resisting without violence, driving while license canceled, suspended or revoked, and battery. The DUI count alleged that the defendant unlawfully drove or was in control “of a vehicle while under the influence of alcoholic beverages, chemicals or any substance controlled under Chapter 893 or' any combination thereof, to the extent his normal faculties were impaired.... ”

The defendant moved to sever the offenses. The State agreed to severance of the driving without a license charge, but not the DUI offense. The trial court denied the motion as it related to the DUI charge. Before trial, the defendant renewed his motion to sever; the trial court again denied the motion.

The jury found the defendant guilty as charged. The court adjudicated the defendant guilty and sentenced him to two years in prison, followed by two years of probation. On appeal, the defendant raises the single issue of the propriety of the court’s denial of his motion to sever the possession of cocaine charge. We review such orders for an abuse of discretion. Crossley v. State, 596 So.2d 447, 450 (Fla.1992).

Florida Rule of Criminal Procedure 3.150(a) provides that multiple offenses “may be charged in the same indictment or information in a separate count for each offense, when the offenses ... are based on the same act or transaction or on 2 or more connected acts or transactions.” A court “shall grant .a severance of charges ... on a showing that the severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” Fla. R.Crim. P. 3.152(a)(2).

In Crossley, the Supreme Court of Florida examined the severance rule and discussed the need to balance the “convenience and the preservation of the courts’ valuable resources” against the “defendant’s right to a fair trial.” 596 So.2d at 449-50 (noting that “practicality and efficiency cannot outweigh the defendant’s right to a fair trial”). “[T]he court must be careful that there is a meaningful relationship between the charges of two separate crimes.” Id. at 450. However, where the offenses are “clearly connected in an episodic sense” and there is “no showing that severance of the properly joined offenses was necessary to promote a fair determination of [the defendant’s] guilt or innocence,” a trial court does not abuse its discretion by denying a motion to sever. Fotopoulos v. State, 608 So.2d 784, 790 (Fla.1992).

Here, the defendant argues that the State improperly bolstered its proof of the DUI charge with evidence of the cocaine when the State was unable to prove that the defendant had actually consumed the cocaine. Without that improper bolstering, the defendant argues the jury may have been unable to overcome his theory that he was simply exhausted. We disagree.

A defendant may be convicted of driving under the influence where sufficient evidence supports a verdict that he was affected by a “controlled substance, which includes cocaine,” to the extent his “normal faculties are impaired.” Sabree v. State, 978 So.2d 840, 841 (Fla. 4th DCA 2008) (emphasis added). The defendant’s possession of cocaine was circumstantial evidence that the defendant was under the influence of the cocaine as alleged in the information. In fact, the jury was instructed that to convict the defendant of the DUI charge, the State must prove that the defendant, while driving, “was under the influence of alcoholic beverages or a controlled substance to the extent that his normal faculties were impaired” and that “[c/ocaine is a controlled substance under Florida law.”

Even more importantly, the evidence of the defendant’s impaired condition was significant. He was found slumped over the wheel of his vehicle in the middle of an intersection at 4:00 a.m. Passing motorists had difficulty waking him. When the deputy arrived, he observed the defendant’s face flushed and his eyes red and bloodshot. The deputy smelled alcohol on the defendant’s breath. When asked where he was, the defendant replied that he thought he was in Fort Myers. In short, the evidence was more than sufficient to convict the defendant of DUI. There was therefore no danger of improper bolstering.

Accordingly, severance was not required “to promote a fair determination of the defendant’s guilt or innocence of each offense.” Fla. R.Crim. P. 3.152(a)(2)(A). And, unlike Crossley, the DUI and possession charge arose out of, and constituted, a single criminal episode. The offenses were properly charged and tried together.

Affirmed.

STEVENSON, J., concurs.

TAYLOR, J., dissents with opinion.

TAYLOR, J.,

dissenting.

I respectfully dissent. Appellant’s motion to sever the possession of cocaine charge from the DUI charge at trial should have been granted. Although the two charges are connected in an episodic sense, because the search incident to the DUI arrest produced the cocaine found in appellant’s pocket, a severance was necessary “to promote a fair determination of the defendant’s guilt or innocence of each offense.” See Fla. R.Crim. P. 3.152(a)(2)(A). Allowing the jury to hear evidence that appellant possessed cocaine at the time of his DUI arrest created a substantial risk that this evidence would unfairly bolster the state’s proof of DUI, which primarily showed impairment by alcohol. See Sule v. State, 968 So.2d 99, 104 (Fla. 4th DCA 2007) (“The danger of improper consolidation lies in the fact that evidence relating to one crime may have the effect of bolstering the proof of the other.”) (citing Crossley v. State, 596 So.2d 447, 450 (Fla.1992)).

In this case, the state presented evidence that appellant had consumed alcohol, but no evidence whatsoever that he had ingested any of the cocaine found in his pocket. Appellant was found asleep at the wheel. When awakened by the deputy, he was very slow, unresponsive, and unable to maintain his balance without stumbling. His face was flushed, his eyes were bloodshot, and he had alcohol on his breath. Typically, these are signs of impairment by alcohol. In addition, appellant admitted that he had been drinking. The state did not present any evidence suggesting that appellant had ingested cocaine or that he showed any signs of having ingested cocaine. Without some predicate facts tying the cocaine found in appellant’s pocket to his impaired condition, evidence of the cocaine was not material to the DUI charge; it unfairly invited the jury to speculate that appellant was under the influence of cocaine. Had the charges been severed and the DUI case tried separately, the jury would have been prohibited from hearing that cocaine was found in appellant’s possession, because the danger of unfair prejudice would have substantially outweighed the probative value of this evidence. See Fla. Stat. § 90.403 (relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice).

This case is similar to our recent opinion in Estrich v. State, 995 So.2d 613 (Fla. 4th DCA 2008). There, the defendant was charged with DUI manslaughter as the result of a fatal car accident. He was also charged with a small quantity of marijuana found in his pocket after the crash. The state’s case focused on Xanax as the cause of the defendant’s impairment. Id. at 617. However, evidence showed that the defendant had a trace amount of marijuana in his blood. The defendant moved to sever the marijuana charge from the DUI manslaughter charge. He also moved to exclude evidence of the marijuana metabolite in his blood, arguing that such evidence was prejudicial. The trial court denied both motions. We reversed, stating:

Allowing the jury to hear that the defendant possessed .95 grams of marijuana had a prejudicial effect on the trial of the manslaughter charge. There was a significant risk that evidence of the defendant’s possession of an illegal drug would bolster the state’s contention that yet another drug impaired the defendant’s ability to drive. The circuit court abused its discretion in denying severance and on retrial the DUI charge shall be severed from the marijuana possession charge.

Id. at 618.

Estrich is somewhat distinguishable from this case in that the evidence there showed, and the state conceded, that Xa-nax was the likely cause of the defendant’s impairment, and that marijuana was not a contributing factor. Here, there was no evidence or concession that cocaine was not a cause of the defendant’s impairment. But, more important, there was no evidence that it was. The state presented no proof of any cocaine use at all. There were no blood test results indicating that cocaine was present in appellant’s system. There was no testimony that appellant’s appearance and behavior were consistent with cocaine consumption. Appellant made no admissions to using cocaine. In short, the state had no evidentiary basis for arguing to the jury, as it did, that appellant was probably impaired by cocaine. The prosecutor told the jury:

All you have to focus on is the elements of the crimes, and if I proved the elements of the crime it doesn’t matter that — if he had white powder on his nose — we know he had cocaine on him, we know he did; we know that he was drinking, he admitted that he was drinking to two separate people — it doesn’t matter, we just need to know whether he was drinking or taking cocaine or any controlled substance — it’s an either/or— or both to the point that his normal faculties were impaired.

Appellant testified that his condition was due to lack of sleep and extreme exhaustion. Of course, the jury was free to reject this testimony. But while evidence of appellant’s alcohol consumption may have been insufficient to convince the jury of his guilt, evidence that he possessed cocaine could have “tipped the scale” for a DUI conviction. See Estrich, 995 So.2d at 618 (quoting Rodriguez v. State, 909 So.2d 547, 550 (Fla. 4th DCA 2005)). This evidence served to bolster the state’s theory, based on impermissible inferences, that because appellant had cocaine in his possession, he must have used it, and, as a result, become too impaired to drive. I believe the trial court abused its discretion in failing to sever the cocaine possession charge from the DUI and would reverse and remand for a new trial

      . "Taken in small amounts (up to 100 mg), cocaine usually makes the user feel euphoric, energetic, talkative, and mentally alert, especially to the sensations of sight, sound, and touch. It can also temporarily decrease the need for food and sleep." National Institute on Drug Abuse, Research Report Series-Cocaine Abuse and Addiction, at http://www.n ida.nih.gov/51fresearchreports/cocaine/co-caine3 .html#short.


author: WARNER, J.

text:
    Jason TENGBERGEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2128.
    District Court of Appeal of Florida, Fourth District.
    April 22, 2009.

      Steven J. Hammer, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Jason Tengbergen appeals his conviction for DUI manslaughter. He makes three claims, none of which require reversal. First, he argues that the trial court erred in denying suppression of his post-Miranda statements, as they were obtained in a two-step “question-first” custodial interrogation in violation of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). We affirm the trial court, as we conclude that the statements were admissible under Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Second, he claims that the court erred in admitting a police officer’s opinion on accident reconstruction without qualifying the officer as an expert. We disagree, as the court heard the evidence of the officer’s qualifications and overruled the defense objection to his testimony on that ground. Third, he claims the court erred in failing to conduct a Richardson hearing with respect to the expert testimony. However, the issue was addressed pre-trial, and his trial objection was waived by his failure to object when the expert evidence was introduced. We therefore affirm.

Around 10:00 p.m. on August 6, 2005, Lieutenant Scott Breton, an off-duty Palm Beach County sheriff, was driving his marked sheriffs vehicle in the left-hand lane northbound on Congress Avenue when he observed a vehicle speed past him about twenty miles over the speed limit. Breton sped up to catch the passing vehicle and saw it swerve to the right, hit the right-hand curb, and then jerk back into the lane of travel. The vehicle hit an object, but Breton could not tell what it was. As he passed the spot where the vehicle hit the object, he saw people and heard a woman screaming. Fearing that the vehicle had hit a person, Breton followed the vehicle which proceeded into a shopping center and then came to stop in a nearby neighborhood.

The driver, who was appellant Tengber-gen, exited the vehicle yelling, “What did I do? What did I do?” Another individual approached him and yelled at Tengbergen that he had just hit somebody. Tengber-gen responded, “Well, he shouldn’t have been in the f — ing road.” Breton placed Tengbergen in handcuffs and secured him inside the police vehicle. As Breton led him to the police vehicle, Tengbergen asked if he was under arrest and what was going to happen. Breton tried to keep him calm and told him that they would sort this all out.

The other individual who yelled at Teng-bergen was a witness to the accident. Mr. Rivas and his brother had turned northbound onto Congress in their vehicle when they encountered Tengbergen’s vehicle which moved from the center lane into the right-hand lane, almost side-swiping the brothers’ car. Tengbergen swerved and returned to the center lane where he almost hit a pickup truck. Tengbergen continued to drift between lanes, hitting the reflectors. Rivas called 911 because the vehicle was speeding and almost hit him and another vehicle. While he was on the phone with 911, the vehicle ran a red light. Rivas saw something crossing the road and then both brothers saw something flying through the air. When Rivas got closer, he realized that the vehicle had struck a person. Rivas pursued Tengbergen’s vehicle and came upon it at the same time that Breton did. He jumped out and confronted Tengbergen. Breton took charge of Tengbergen and told Rivas to return to the victim.

Breton brought Tengbergen back to the scene of the accident. Officers were arriving at the scene, and Officer Pete Picciano of the Boynton Beach Police Department approached Tengbergen in Breton’s vehicle. Picciano asked Tengbergen what happened. At his deposition, Picciano related that Tengbergen told him that “he was driving along and thought nothing of it when he hit [the victim]. He didn’t see the police car in back of him trying to stop him after the fact.” Picciano observed that Tengbergen’s eyes were red and glassy, and he spoke with slurred speech. However, Picciano did not question him about drinking.

Officer Richard McNevin, the traffic homicide investigator for the Boynton Beach Police Department, arrived approximately a half an hour later. By that time the victim had died, and McNevin knew a homicide had occurred. He spoke with Picciano and then went over to Tengber-gen who was still in handcuffs in the police vehicle. McNevin introduced himself as the lead investigator on the accident. He did not indicate that he was conducting a criminal investigation. McNevin asked Tengbergen what happened, and Tengber-gen told him that “a person appeared out of nowhere and he struck him.” McNevin asked other basic information, such as what direction Tengbergen was travel-ling — information necessary for the accident report. The conversation was brief.

After conducting further investigation of the scene and talking to other witnesses, McNevin sought a blood sample from Tengbergen, which he obtained at 12:10 a.m. Both Picciano and McNevin testified in their depositions that McNevin read Tengbergen Miranda rights prior to blood being drawn, although McNevin was less sure about this point than Picciano. An hour later McNevin took his statement, which was recorded. McNevin read Teng-bergen his rights, and Tengbergen acknowledged each one. In his statement, Tengbergen admitted to having consumed alcohol and recited the details of his evening, including hitting the victim.

Tengbergen was eventually arrested and charged with DUI manslaughter and failure to render aid. He moved to suppress all of his statements. The state and defense agreed to suppress all statements made to Picciano and those made to McNevin prior his administering Miranda warnings. The court denied the motion as to statements made to McNevin after the warnings.

At trial, McNevin testified regarding his investigation and also as to his reconstruction of the accident. He did not observe any skid marks, which would indicate that the vehicle did not take any evasive action to avoid hitting the victim. He explained the body damage to the right side of the vehicle. When the state asked McNevin if he had an opinion as to what occurred when the vehicle hit the victim, defense counsel objected that McNevin had not been qualified as an accident reconstruction expert. The state elicited his training and education provided by the police department in the field of accident reconstruction. Over objection, the court permitted McNevin to offer an opinion as to what happened immediately after Teng-bergen struck the victim. McNevin opined that “[ajfter the vehicle struck the pedestrian, the pedestrian’s body rolled up on to the windshield. After impacting the windshield, and crushing in the windshield, it rolled off of the passenger side of the car and that is where the passenger’s side mirror was ripped off’ and that the impact “would ... have been in view of the driver of the vehicle at that moment.” The actual impact occurred in the bicycle lane.

Toxicologist Dustin Yateman testified that at 12:12 a.m. when the blood samples were taken, Tengbergen’s blood alcohol level was .227 and .228, which is more than double the legal limit. Using retrograde extrapolation, he calculated that Tengber-gen’s blood alcohol level at the time of the incident at 10:19 p.m. was .247 to .267. In arriving at this figure, Yateman considered Tengbergen’s food consumption during the day. Yateman also considered that Teng-bergen ingested his last drink approximately twenty minutes before the incident.

Although Tengbergen did not present any case in defense, he argued to the jury that the toxicologist’s sampling was incorrect and that he was not impaired at the time of the accident. The jury found him guilty of DUI manslaughter, a lesser included offense of the charge. The court sentenced him to fifteen years in prison, with credit for time served. Tengbergen appeals.

I. Denial of Suppression of Post-Miranda Statement

On appeal, Tengbergen argues that the trial court erred in denying the post-Miranda portion of his statement to McNev-in, as he claims it was obtained through a two-step question-first interrogation contrary to Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). The trial court denied the motion to suppress his post-Miranda statement. We affirm, concluding that the statement was uncoerced, and his first statement did not taint the second statement.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Hunter v. State, 8 So.3d 1052 (Fla. Sept. 2008) (quoting Schoemuet-ter v. State, 931 So.2d 857, 866 (Fla.2006)). An appellate court accords a presumption of correctness to the trial court’s ruling on motion to suppress with regard to the trial court’s determination of historical facts, but independently reviews mixed questions of law and fact. Id. See also Lindo v. State, 983 So.2d 672, 675 (Fla. 4th DCA 2008).

In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the United States Supreme Court considered whether the initial failure of law enforcement officers to administer Miranda warnings taints subsequent admissions made after a suspect has been fully advised of and has waived his Miranda warnings. An officer went to Elstad’s home with a warrant for his arrest. In the presence of the suspect’s mother, the officer explained that he had a warrant for his arrest for the burglary of a neighbor’s residence. Elstad told the officer that he was there. At the station house one hour later, Elstad gave a full statement after receiving and waiving his Miranda rights. The United States Supreme Court held the second statement was admissible and voluntary.

The Court reasoned:

[A] simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will [does not] so taint[ ] the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Id. at 309, 105 S.Ct. 1285. “[A] suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Id. at 318, 105 S.Ct. 1285.

The Court addressed a similar issue in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), where it considered the admissibility of statements obtained pursuant to an official policy of questioning suspects without first giving Miranda warnings and then obtaining a second statement after administering warnings. Seibert was arrested and then questioned without Miranda warnings for thirty or forty minutes until she confessed. After a twenty-minute break, the interrogating officer turned on a tape recorder, gave Seibert Miranda warnings, and resumed questioning while confronting her with her pre-warning statements. Seibert again gave a confession. During the suppression hearing, the interrogating officer testified that he made a “conscious decision” to withhold Miranda warnings pursuant to an interrogation technique he had been taught to question first, then administer warnings, and repeat the question until he obtained the answer the suspect had already provided. Id. at 605-06, 124 S.Ct. 2601.

The Court upheld the suppression of the confession. In a four-justice plurality opinion, Justice Souter stated:

The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as' Miranda requires.... [U]nless the warnings could place a suspect who has just been 'interrogated in a position to make such an informed choice, there is no practical justification for áccepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.

Id. at 611-12, 124 S.Ct. 2601. The plurality framed the issue as “whether Miranda warnings delivered midstream could be effective enough to accomplish their objective].” Id. at 615, 124 S.Ct. 2601. In making this determination, the following relevant factors should be considered:

the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.

Id.

Applying these factors, the plurality distinguished Elstad, reasoning that a reasonable person in Elstad’s position could perceive the station house questioning as a new and distinct experience, and the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. However, the circumstances of Seibert’s statement were “the opposite extreme” and encompassed a police strategy adopted to undermine Miranda warnings. Id. at 616, 124 S.Ct. 2601. Reviewing the facts in Seibert he plurality concluded that the post-warning statements were inadmissible.

In his concurring opinion, Justice Kennedy agreed that the question-first technique was designed to circumvent Miranda and obscured its meaning. However, he thought that the majority test was too broad. Instead, he proposed “a narrower test applicable only in the infrequent case ... in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” Id. at 622, 124 S.Ct. 2601. Where the two-step interrogation was not deliberately employed as a tactic, the analysis should still be governed by Elstad.

Florida courts have heretofore applied Justice Kennedy’s rule, as it represents the narrower view. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the ‘holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (citation omitted). Justice Kennedy’s opinion provides the narrowest grounds. See Jump v. State, 983 So.2d 726, 728-29 (Fla. 1st DCA 2008); State v. Lebron, 979 So.2d 1093, 1095 (Fla. 3d DCA 2008); State v. Pitts, 936 So.2d 1111, 1136 (Fla. 2d DCA 2006). Accordingly, unless the officers deliberately withheld warnings, Elstad controls Tengbergen’s Miranda claim.

In this case there is no evidence that the officers employed a deliberate two-step question-first, warn-later policy. In fact, because a traffic accident occurred, the officers were required to investigate, and Tengbergen was required to provide information. See §§ 316.065(1); 316.066, Fla. Stat. The pre-Miranda statements given to both Picciano and McNevin provided only basic information regarding the accident that the officers already knew from other witnesses, such as direction of travel. The officers did not ask about his drinking or even much detail about how the accident happened. The fact that he was questioned while handcuffed in the backseat of a police vehicle without Miranda warnings does not in and of itself show a deliberate and calculated method to undermine the safeguards guaranteed in Miranda.

The un-Mirandized questioning by Pic-ciano and then McNevin occurred close to the time of the accident. Over an hour went by before the officers obtained a blood sample from Tengbergen. Another hour passed before McNevin recorded Tengbergen’s statement on tape, including reading Miranda rights. Although Teng-bergen maintains that the officer attempted to minimize the rights by telling Teng-bergen he was going to read them “real quick,” the transcript of the taped statement shows that each right was read, and Tengbergen acknowledged each of them.

Even if Justice Souter’s plurality opinion in Seibert were to apply, we would still come to the conclusion that the statements were properly admitted. The first statements appear to be extremely brief and contained no detailed information— merely that required to prepare an accident report. The second statement, taken hours later, did not refer to the prior statement, and McNevin did not use the original statement to induce the subsequent one. A reasonable person would have perceived the questioning by McNev-in to be separate and distinct from the earlier questioning.

We conclude that the trial court’s denial of the motion to suppress the post-Mi•randa statement is amply supported by the facts and the law.

II. Qualification of Expert Witness

In permitting Officer McNevin to testify as an accident reconstruction expert, the trial court overruled defense counsel’s objection to his testifying in the form of an opinion without being qualified. Although the trial court did not state that it determined the officer was an expert, the court overruled the defense objection on that ground. We conclude that the court sufficiently determined the criteria for the admission of his testimony.

The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence. Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001). The standard of review for trial court decisions concerning the qualifications of expert witnesses and the scope of their testimony is abuse of discretion. Terry v. State, 668 So.2d 954, 960 (Fla.1996); Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47, 55 (Fla. 4th DCA 1994).

As the supreme court has explained: Section 90.702 requires that before an expert may testify in the form of an opinion, two preliminary factual determinations must be made by the court under section 90.105. First, the court must determine whether the subject matter is proper for expert testimony, i.e., that it will assist the trier of fact in understanding the evidence or in determining a fact in issue. Second, the court must determine whether the witness is adequately qualified to express an opinion on the matter.

Terry, 668 So.2d at 960. In this case, the trial court, cognizant of that standard, overruled the defense objection and permitted McNevin to offer expert opinion testimony.

After McNevin had testified for quite a while as to his investigation and his opinions as to skid marks or their absence, the point of impact, and other issues, the defense objected when the state asked McNevin his opinion “as to what occurred as the vehicle hit the person, and how the sequence of the crash occurred.” Defense counsel maintained that he had not been rendered an expert witness. The court noted that McNevin had been testifying for twenty minutes on subjects which would be subject to the same objection. The court then recited the three factors which must be present in order to admit expert testimony: (1) whether the witness will be relating information which would aid the jury; (2) whether the subject area is one for expert testimony; and (3) whether the witness has sufficient qualifications to establish the “merit” of his opinion. The court sustained the defense objection, and the state proffered McNevin’s qualifications. Defense counsel cross-examined his qualifications and then objected to McNevin testifying to his opinion.

The court overruled the defense objection and told the jury that expert witnesses are like other witnesses, except they can give their opinion. The court further instructed the jury:

[T]he law requires that you make the decision, number one whether the person is really an expert. That’s the ultimate decision. Two, that he has knowledge about the subject matter what, as to what he testifies to. And three, whether or not the opinion that is proffered is, indeed, something that you find to be reliable. I am making no declaration. The question is: Is there an objection to permitting the witness to answer the question. There is an objection, it is overruled. You may proceed. It is the jury’s decision.

The judge’s instruction to the jury paraphrased Florida Standard Jury Instruction (Criminal) 3.9(A).

While Tengbergen contends that the court erred by not “qualifying” McNevin as an expert, the trial court determined that the requirements for the introduction of expert testimony were met when it overruled the defense objection that McNevin was not qualified as an expert. Although the court did not explicitly state to the jury that it found the witness qualified as an expert, the court reasonably followed the suggestion of this court that a court should refrain from telling the jury that the witness’s testimony is being admitted as “expert testimony,” because that may be tantamount to the court commenting on the credibility of a witness. See Alexander v. State, 931 So.2d 946, 951 (Fla. 4th DCA 2006) (“the better procedure would have been to permit the witness to testify without reference to his or her status as an expert”). See also Chambliss v. White Motor Corp., 481 So.2d 6, 8 (Fla. 1st DCA 1985) (“[I]t is not necessary for the court to state that the witness is qualified as an expert. In fact, it is questionable whether it is proper procedure for a court to expressly declare a witness an ‘expert’ because the jury may infer from such declaration that the court is placing its approval on the opinions of the witness.”). The court appropriately ruled, and it committed no error.

III. Absence of Richardson Hearing

A week prior to trial the court held a pretrial conference at which time defense counsel raised a Richardson issue, because the state was intending to use Officer McNevin as an accident reconstruction expert. Although the defense had taken his deposition in connection with the traffic homicide investigation and calculations he made from the data, he was not asked whether he had expert opinions on accident reconstruction. The court told the state to make the officer available to the defense if the state intended to use him as an expert. The prosecutor told the court and defense counsel that he would be calling McNevin as an expert and told defense counsel that he could arrange a time for counsel to interview McNevin. The defense apparently did not talk to McNevin prior to trial.

After McNevin testified to his various opinions on accident reconstruction, the state sought to introduce a photograph with markings on it to depict the witness’s opinions. At that point defense counsel moved for a Richardson hearing, stating that “he still has not been proffered as an expert.” The court then asked defense counsel whether he had seen the photograph before, and counsel admitted that he had seen it in the prosecutor’s office. Upon further questioning from the court, defense counsel stated the problem was “all the markings and the way it has been done.”

Later, defense counsel again complained about the entire testimony of McNevin’s accident reconstruction, claiming that he was unaware that the officer would testify as an expert. However, the court reminded counsel of the pretrial conference and the state’s representations. The court also noted McNevin had already testified to his opinions without defense counsel raising a Richardson violation. Only the photograph had not been admitted at the time of the objection, and thereafter the court denied its admission.

This Richardson issue is not preserved. First, the potential discovery violation was brought to the attention of the court a week before trial and the court required that the state provide the witness to the defense, yet the defense did not take the witness’s deposition on his expert opinions. With a week to go until trial, and the opportunity to cure any prejudice, we do not think that a Richardson violation has occurred. Second, while the defense objected to McNevin’s qualifications to give expert opinions, counsel did not raise his objection to a Richardson violation until the officer had already testified to his expert opinions. Where the defense knew about the potential testimony in advance of the trial, an objection based upon Richardson is waived when the defense does not object on those grounds prior to the witness testifying. See Taylor v. State, 589 So.2d 918 (Fla. 4th DCA 1991).

Finding no errors, we affirm the conviction and sentence.

POLEN and HAZOURI, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Sheryl D. MEYEROWITZ, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Al Hendrickson Toyota, Inc., Appellees.
    No. 4D08-2412.
    District Court of Appeal of Florida, Fourth District.
    April 22, 2009.

      Sheryl Meyerowitz, Tamarac, pro se.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Commission.
   WARNER, J.

A claimant appeals an order of the Unemployment Appeals Commission (“UAC”) affirming an appeals referee’s decision finding the claimant ineligible for benefits following her discharge from employment. The UAC determined that the claimant was discharged for misconduct connected with work, prohibiting her from receiving unemployment compensation benefits. While the UAC expressly found that she had committed an act of dishonesty, the referee found only that she had violated a policy of her employer. Because the single violation of policy could not constitute misconduct, we reverse.

The decision of the appeals referee included the following findings of fact:

The claimant worked for the employer, a car dealership, from October 8, 2007 until January 31, 2008. The claimant was employed full-time as a cashier in the service department. The employer’s credit card policy, known to the claimant, prohibits any credit card charge unless the card is personally presented to be swiped and the credit slip signed in front of the cashier. On January 23, 2008, the claimant charged two separate customer’s bills, totaling $934.49, to a single credit card number, that was presented to her by a service advisor written on a piece of paper. The credit card holder never presented themselves to the claimant and the charge slip was never signed by the card holder in front of the claimant, but was later returned by the service manager, allegedly signed by the credit card holder. The claimant was discharged on January 31, 2008, by two executive vice presidents for violating the employer’s credit card procedure.

Because the claimant “admitted to knowingly violating the employer’s credit card policy and that she knew she ‘was wrong1 in her action,” the referee found that she “was in clear violation of a known policy and in violation of her duties and obligations to the employer.” Noting that the claimant “had no explanation for accepting a credit card number written on a piece of paper and not demanding to see the actual card, which would have been easily obtainable if the customer was outside” or for “not contacting a supervisor,” the referee found that she failed to show “legal justification or defense to her actions.” The referee concluded that the claimant should be denied benefits because she had intentionally violated the employer’s known policy, constituting misconduct, citing Hines v. Department of Labor & Employment Security, 455 So.2d 1104 (Fla. 3d DCA 1984).

The UAC affirmed the determination of the referee. It acknowledged that “an isolated instance of poor judgment would not constitute disqualifying misconduct sufficient to deny benefits under unemployment compensation law. However, a single act of dishonesty could constitute disqualifying conduct.” It concluded that the record supported the referee’s findings.

On appeal, the claimant argues that her acts constituted a single instance of poor judgment in violating company policy, not dishonesty, which was not found by the referee. She argues that evidence of one isolated incident is insufficient to deny benefits.

Section 443.101(l)(a), Florida Statutes, provides: “An individual shall be disqualified for benefits” when “the individual has been discharged by his or her employing unit for misconduct connected with his or her work.” Misconduct includes “[cjon-duct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee.” § 443.036(29)(a), Fla. Stat. “Whether a claimant committed misconduct connected with work is a question of law.” Saunders v. Unemployment Appeals Comm’n, 888 So.2d 69, 71-72 (Fla. 4th DCA 2004).

The UAC reviews the referee’s decision to ascertain “whether the referee’s findings of fact were based on competent, substantial evidence in the record and whether the proceedings on which the findings were based complied with the essential requirements of the law.” Lucido v. Unemployment Appeals Comm’n, 862 So.2d 913, 916 (Fla. 4th DCA 2003) (quoting San Roman v. Unemployment Appeals Comm’n, 711 So.2d 93, 95 (Fla. 4th DCA 1998)). The UAC cannot substitute its findings of fact for those of the referee, even though it may reject a referee’s conclusions of law. Id.

Here, the UAC’s order noted that: An isolated instance of poor judgment may be a sufficient reason for an employer to discharge an employee; however, it will not generally constitute disqualifying misconduct under the unemployment compensation law. See Stringfellow v. Fla. Unemployment Appeals Comm’n, 920 So.2d 723 (Fla. 1st DCA 2006) (“[bjecause there [was] no showing in the record that claimant repeatedly violated explicit policies after several warnings,” the court found that claimant’s violation of the employer’s policies without warning did not constitute disqualifying misconduct); Vilar v. Unemployment Appeals Comm’n, 889 So.2d 933 (Fla. 2d DCA 2004).

It then noted that a single act of dishonesty could constitute sufficient disqualifying misconduct to warrant denial of benefits. Nowhere did the referee make a finding that the claimant’s conduct constituted an act of dishonesty. The UAC’s finding of dishonesty cannot be substituted for the referee’s finding of violation of a clear policy. Lucido, 862 So.2d at 916.

As recognized by the UAC, an isolated instance of poor judgment is insufficient to constitute disqualifying misconduct for the purpose of securing unemployment compensation. See Stringfellow, 920 So.2d at 723. Here, the findings of the referee show only a single act of violating a company policy in charging to a customer’s credit card.

The referee relied on Hines v. Department of Labor & Employment Security, 455 So.2d 1104 (Fla. 3d DCA 1984), but it is distinguishable. There an employee had a confrontation with his foreman in front of other employees. Not only did he belligerently refuse to follow a direct work order, he challenged his foreman to fire him, a tactic he had used before and had been warned not to do again. The court found either reason sufficient to constitute misconduct. As to the former, the belligerent refusal to perform the direct order of the foreman in front of the other employees constituted an intentional refusal to follow an order of the employer. As to the latter, because he had been previously warned not to make an offensive challenge to fire him, this too could constitute misconduct. However, the court noted that it would not constitute misconduct if it had been the first time, and no prior warning had been given. Unlike Hines, the claimant in this case did not disobey a direct work order, although she did disobey a company policy. A one-time violation of a company policy usually does not constitute intentional misconduct justifying the denial of unemployment benefits.

In Borland v. Unemployment Appeals Commission, 910 So.2d 320 (Fla. 2d DCA 2005), the court held that a bank teller who had failed to secure her cash drawer on three occasions in violation of bank policy had not committed misconduct sufficient to deny her benefits, noting that the bank had suffered no loss as a result. Here, too, the referee did not make a finding that the car dealership suffered any loss as a result of the transaction. Nor did the referee find that the claimant had ever engaged in similar violation of policies.

At most the findings of the referee reveal a single incident of poor judgment. While this may be sufficient to terminate the employee, it is insufficient under the unemployment compensation law to deny benefits. Borland, 910 So.2d 320.

Reversed with instructions to reinstate benefits.

POLEN and HAZOURI, JJ., concur.


author: PER CURIAM.

text:
    Kenneth LAMBERTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1658.
    District Court of Appeal of Florida, First District.
    April 23, 2009.
    Rehearing Denied May 22, 2009.
    Kenneth Lamberton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ALLEN, DAVIS, and BROWNING, JJ., concur.


text:
    Sandra Lee FINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-282.
    District Court of Appeal of Florida, Second District.
    April 24, 2009.

      Peter A. Sartes of Law Offices of Tragos & Sartes, Clearwater, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   GALLEN, THOMAS M., Associate Senior Judge.

Sandra Lee Finney seeks review of the circuit court’s order denying her “Petition for Writ of Habeas Corpus and/or Motion to Vacate Sentence Pursuant to Rule 3.850.” In her petition, Finney argued that the county court violated her right to counsel by imposing a sentence of incarceration upon a finding that she violated her probation because the pleas that resulted in the probationary sentence were uncounseled. The circuit court denied relief based on its finding that Finney waived her right to counsel. We reverse.

In May 2007, Finney appeared at an arraignment in county court and entered no contest pleas in four cases to charges of issuing worthless checks. The court adjudicated Finney and sentenced her to twelve months of probation plus costs and restitution. The court included a provision that Finney would have ten months of the twelve-month probation period to pay the costs and restitution with early termination upon full payment.

At the onset of the arraignment, the court issued its standard mass advisory to the defendants in the audience. The court advised the audience that the purpose of the hearing was to inform them of the charges against them and their constitutional rights. The court also advised the audience of the differences between pleas of not guilty, no contest, and guilty and the possible dispositions for second-degree and first-degree misdemeanors. The court gave the following information regarding the right to counsel:

If you do enter a plea of not guilty, the Court will then assign you a pre-trial date and perhaps explore your ability to hire a lawyer and whether you intend to hire a lawyer or possibly the Court may appoint you a public defender to represent you.
... You have the right to be represented by a lawyer and [sic] the charge against you. If you cannot afford to hire a lawyer then the Court can appoint a public defender to represent you.

During Finney’s individual plea colloquy, the court asked whether she had read the plea form and whether she understood the rights she was waiving on that form. Fin-ney replied in the affirmative to these questions. Finney’s plea form stated that she understood “[t]he right to an attorney, and the right to have an attorney appointed if [she could not] afford one if the Judge is considering a jail sentence on this charge.” Finney entered her pleas without the benefit of counsel.

On August 17, 2007, an affidavit of violation of probation was filed in county court. The affidavit asserted that Finney violated her probation by failing to pay probation supervision fees for May, June, and July of 2007. Finney entered an uncounseled admission to the violation of probation based upon her failure to pay the costs of supervision and was advised by the court to appear at a future date for sentencing. Finney failed to appear for her sentencing, and a capias was issued for her arrest. The public defender was appointed, and on October 24, 2007, the court sentenced Fin-ney to 364 days in the Pinellas County Jail concurrent on all counts.

Finney then filed a “Petition for Writ of Habeas Corpus and/or Motion to Vacate Sentence Pursuant to Rule 3.850” in circuit court. In this petition, Finney argued that the county court erred in imposing a sentence of incarceration upon a finding that she violated her probation because the pleas that resulted in the probationary sentence were uncounseled and she had not waived her right to counsel. Finney requested that the court order her immediate release from confinement and entel-an order reversing the revocation of her probation on that basis.

The circuit court denied the petition based on its finding that Finney waived her right to counsel when she entered her pleas to the underlying charges in county court. On appeal of the denial of her petition, Finney argues for the first time that the county court erred in finding that the violation of probation was willful and substantial. Finney also argues that the circuit court erred in determining that a sentence of incarceration was proper because Finney waived her right to counsel.

Finney’s argument regarding the county court’s determination that the underlying violation of probation was willful and substantial is not properly before this court because this issue was not raised in Finney’s petition. See Brooks v. State, 768 So.2d 513, 514 (Fla. 2d DCA 2000) (holding that appellate court would not consider issues raised for the first time in the appeal of the denial of a postconviction motion).

Finney’s argument regarding the circuit court’s determination that incarceration was proper because Finney waived her right to counsel requires reversal. Because Finney was an indigent criminal defendant faced with imprisonment, she was entitled to counsel under article I, section 16 of the Florida Constitution, unless the court filed a written order of no incarceration. State v. Kelly, 999 So.2d 1029, 1040 (Fla.2008). Absent a valid waiver of this right, the county court was precluded from imposing a sentence. of incarceration on the charges. See Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Harris v. State, 773 So.2d 627, 629 (Fla. 4th DCA 2000).

Similarly, the county court was precluded from imposing incarceration upon Finney’s revocation of probation because it could not have imposed incarceration for the underlying conviction. See Tur v. State, 797 So.2d 4, 6 (Fla. 3d DCA 2001); Harris, 773 So.2d at 629. As the court acknowledged in Tur, section 948.06(1), Florida Statutes (1999), limits a court’s sentencing choices upon a revocation of probation to “ ‘any sentence which it might have originally imposed before placing the probationer or offender on probation.’ ” Tur, 797 So.2d at 6. If the court could not have imposed imprisonment because a defendant was not represented in the underlying misdemeanor proceedings, it cannot impose incarceration upon an ensuing revocation of probation. Hams, 773 So.2d at 630.

In denying Finney’s petition, the circuit court acknowledged Finney’s right to counsel at the change of plea hearing but concluded that Finney waived this right

based on the totality of the record, which at each hearing includes the introductory mass rights advisement to all defendants present (including [Finney]), the plea colloquy conducted by the court and [Finney’s] answers to the questions posed by the court, as well as the plea. forms signed by [Finney] at both hearings and her acknowledgement that she read, understood[,] and knowingly waived her rights on the plea form when she signed it.

Finney’s plea form was deficient because it “provided the misleading impression that an indigent criminal defendant lacks a right to counsel so long as the trial judge is not currently considering jail time as an appropriate sentence.” Kelly, 999 So.2d at 1036. Nothing in the mass plea colloquy or Finney’s individual plea colloquy cured this error. See id. (holding that a “properly executed on-the-record plea colloqu[y]” could cure this type of deficient plea form). In fact, the mass plea colloquy contained conflicting and confusing information that could have led Finney to believe she was only entitled to counsel if she entered a not guilty plea.

For these reasons, the circuit court erred in determining that incarceration was proper because Finney waived her right to counsel. Accordingly, we reverse and remand with directions for the circuit court to grant Finney’s petition.

Reversed and remanded.

VILLANTI and WALLACE, JJ„ Concur.

      . While we are unable to reach this issue on appeal, we share Finney's concern with the trial court's failure to ascertain whether Fin-ney had the ability to pay the probation supervision fees at issue. Our concern arises primarily from the fact that Finney did not have the benefit of counsel when she admitted to violating her probation.


text:
    David RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4935.
    District Court of Appeal of Florida, Second District.
    April 24, 2009.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

David Rodriguez appeals his conviction and sentence for aggravated battery with great bodily harm. He argues that the trial court erroneously allowed three hearsay statements into evidence. We affirm.

Mr. Rodriguez’s wife was at his apartment with their daughter. Someone knocked. When Mrs. Rodriguez opened the door, she was punched in the face. Mr. Perez, a neighbor, was standing in a nearby parking lot, when he saw a little girl run out of the apartment screaming, looking desperate and panicked. She was yelling that her father was killing her mother. Mrs. Rodriguez came stumbling out. Her eyes were swollen and her face was bleeding. She got into her car, locked the door, and began honking the horn.

Shortly thereafter, Mr. Perez saw Mr. Rodriguez come out of the apartment. Mr. Rodriguez began screaming and banging on the car window. Mrs. Rodriguez refused to open the car door. Mr. Rodriguez left the scene and Mr. Perez approached the car. Mrs. Rodriguez was afraid and was looking to see whether her attacker was still there. She opened the car door and told Mr. Perez that her husband attacked her.

Deputies arrived. Mrs. Rodriguez remained in the car, crying and hysterical. She was having difficulty talking and complained of pain. She told the deputies that Mr. Rodriguez hit her.

At trial, Mr. Perez and one of the deputies testified as to the statements made by Mrs. Rodriguez and her daughter. After the State rested, Mr. Rodriguez moved for a judgment of acquittal. But for the three hearsay statements, he contends that he was entitled to a judgment of acquittal because the circumstantial evidence is equally consistent with his reasonable hypothesis of innocence. See Beasley v. State, 774 So.2d 649, 657 (Fla.2000).

The trial court properly admitted the three statements as excited utterances. See § 90.808(2), Fla. Stat. (2006). A hearsay statement is an excited utterance when: (1) there is an event startling enough to cause nervous excitement, (2) the person made the statement before there was time for reflection, and (3) the person made the statement while under the stress of the excitement caused by the startling event. Rogers v. State, 660 So.2d 237, 240 (Fla.1995) (citing State v. Jano, 524 So.2d 660, 661 (Fla.1988)).

Rivera v. State, 718 So.2d 856 (Fla. 4th DCA 1998), is instructive. There, the Fourth District held that statements that a battery victim made to a police officer fifteen minutes after the officer saw the victim screaming and waving her hands while crying qualified as excited utterances. Id. at 858. Accordingly, we conclude that the trial court committed no error in admitting the excited utterances of Mrs. Rodriguez and her daughter.

Affirmed.

WALLACE and KHOUZAM, JJ., Concur.


author: MAY, J.

text:
    Francisco TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3369.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.

      Francisco Torres, Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals the summary denial of his motion for post conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850. He raises three issues, one of which we find has merit. He argues that the trial court erred in summarily denying the motion, which alleged his counsel had been ineffective in allowing him to be tried in full shackles, without an evidentiary hearing. We agree and reverse.

His motion alleges that his attorney failed to challenge the trial court’s determination that the defendant be tried wearing full shackles and handcuffs, which were both heard and seen by the jury. He references the following portion of the trial transcript:

Defense Counsel: It is within your discretion. Will you permit him to be unshackled?
Court: No, sir.
Defense Counsel: Okay Court: Anything further?
Defense Counsel: No.
(Thereupon, the following proceedings were resumed within the hearing of the prospective jury panel)
Court: Mr. Torres, will you please stand up? ... Standing to Mr. Beilis right is the Defendant, Francisco Torres....

The trial court adopted the State’s response to support its summary denial of the defendant’s motion. In that response, the State argued that the record failed to prove the jury actually saw the defendant in shackles. Alternatively, the State argued the trial court was justified in keeping the defendant shackled. And lastly, the State argued that the defendant could not establish the requisite prejudice.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) is the landmark case establishing the two-pronged test for a claim of ineffective assistance of counsel. First, the defendant must show that his counsel’s performance was deficient. Second, the defendant must establish that counsel’s deficient performance prejudiced him by depriving him of a fair trial. Id. at 687-697, 104 S.Ct. 2052.

A summary denial of a motion for post-conviction relief will be affirmed only when the trial court either states “its rationale in the order denying relief or attach[es] portions of the record that would refute the claims.” Nixon v. State, 932 So.2d 1009, 1018 (Fla.2006). When the record does not refute the defendant’s claims and no evidentiary hearing is held, the trial court must accept the defendant’s factual allegations as true. Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000); Hodges v. State, 946 So.2d 1244 (Fla. 4th DCA 2007).

A defendant cannot be compelled, over objection, to stand trial in shackles unless necessary to prevent an escape, a disturbance, or potential injury. Deck v. Missouri, 544 U.S. 622, 626-32, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005); Weaver v. State, 894 So.2d 178, 193 (Fla.2004). If an objection is made by the defendant, the trial court must state on the record why the restraint is necessary or hold a separate evidentiary hearing. See Bello v. State, 547 So.2d 914, 918 (Fla.1989); Brown v. State, 856 So.2d 1116, 1117 (Fla. 4th DCA 2003).

Here, the defendant alleged that the jury saw him in shackles and that defense counsel failed to properly object and request that the court make the requisite findings to justify the use of shackles. Neither the State’s response nor the brief record provided refute the defendant’s allegation that the jury did see the defendant in shackles and handcuffs or that defense counsel’s performance was deficient resulting in prejudice.

Perhaps other portions of the record may establish that defense counsel did everything possible to prevent the defendant from being shackled or that no prejudice resulted. Obviously, if the jury did not see the defendant in shackles, there is no prejudice. However, neither the trial court nor the State has provided those portions of the record. We find no merit in the other two issues raised.

We therefore reverse and remand the case to the trial court to hold an evidentiary hearing or attach portions of the record justifying its denial of the defendant’s motion for post-conviction relief, limited to the claim concerning the defendant being shackled.

Reversed and Remanded.

WARNER and DAMOORGIAN, JJ„ concur.

      . The State relied on the defendant’s history of violence to justify the shackling of the defendant. However, we have held that the defendant's history of conviction of violent crimes alone is insufficient to warrant the use of shackles. See Miller v. State, 852 So.2d 904, 906 (Fla. 4th DCA 2003).