author: MORRIS, Judge.

text:
    BUCK-LEITER PALM AVENUE DEVELOPMENT, LLC, Appellant, v. CITY OF SARASOTA, Appellee.
    Case No. 2D15-2879
    District Court of Appeal of Florida, Second District.
    Opinion filed March 3, 2017

      Albert J. Tiseo of Goldman, Tiseo & Sturges, P.A., Port Charlotte, for Appellant.
    Morgan R. Bentley, Brian D. Goodrich, and David, A. Wallace of Bentley & Brun-ing, P.A., Sarasota; and Robert M. Four-nier of Fournier, Connolly, Warren & Shamsey, P.A., Sarasota, for Appellee.
   MORRIS, Judge.

Buck-Leiter Palm Avenue Development, LLC (the developer) appeals a final order granting summary judgment in favor of the City of Sarasota (the City). We reverse because the City was not entitled to summary judgment as a matter of law.

I. Background

In June 2006, the City requested proposals for the development of City-owned land on Palm Avenue in downtown Sarasota. In March 2007, the City selected the developer pursuant to the proposal process. The City and the developer engaged in extensive negotiations, and on November 13, 2007, the City and the developer entered into an Initial Redevelopment Agreement (IRA).

The IRA states that its provisions “shall be carried forth and incorporated into a subsequent final Redevelopment Agreement.” The IRA describes in detail the parties’ respective obligations regarding the development project. It provides that the project will be developed in two phases, with phase I consisting of a 453-space parking structure, a 77,000-square-foot hotel, 18,500 square feet of retail space, and a paved parking area. Phase II will include 150 condominium units, an additional 6000 square feet of retail space, and an expansion of the parking garage. The IRA further describes details of the project, such as the operation and maintenance of the project and the sharing of costs and revenues. The IRA also provides that the developer will lease land from the City and be granted an option to purchase the land, with a formula for the computation of lease payments and the purchase price for the option tract in phase II. Further, the IRA contains provisions regarding financing of the project with the issuance of bonds, attainable housing units, the developer’s payment of taxes, the developer’s compliance with code and regulations, the conceptual architectural design approval, terms for disposition of the property, the project schedule, title to the property, and notices.

The IRA also, states that “each party shall be entitled to written notice of and the opportunity to cure any alleged defaults” and that “[fjailure of a party to enforce a covenant or condition contained in this [IRA] shall not be deemed a waiver of any future default or breach, whether or not of a similar character.” The IRA further provides that “[i]n the event of any litigation between the parties in respect to this [IRA] or the Redevelopment Agreement, the prevailing party shah be entitled to reasonable attorney’s fees and costs.” Last, the IRA provides that “[i]n the event that the parties hereto have not approved and executed a final Redevelopment Agreement by February 15, 2007, then this [IRA] shall terminate and shall have no farther force and effect.”

On March 21, 2008, the City approved a conceptual architectural design for the project. After further extensive negotiations on key issues, on April 7, 2008, the City and the developer executed an Open Issue Term Summary (the summary) that addressed parking, access during phase II construction, infrastructure costs, architecture efforts, and timing. On June 2, 2008, the City acknowledged that significant impediments existed that prevented the parties from arriving at a final agreement, and the City Commission imposed a deadline of July 21, 2008, “as the date to determine if the City and [the developer] can reach” a final agreement. At a special meeting of the City Commission on July 17, 2008, the City Commission voted to accept the City’s staff ■ recommendation that the “current redevelopment proposal [is] unacceptable,” effectively terminating the negotiations with the City and the developer and the developer’s involvement in the project.

In June 2010, the developer filed a complaint against the City for breach of contract, promissory estoppel, and imposition of equitable liens. In June 2012, the trial court granted the City’s motion for summary judgment on the third count. In December 2013, the developer was granted leave to file an amended complaint alleging breach of contract. In the amended complaint, the developer alleged that the terms of the IRA indicate that the IRA was intended to be binding and enforceable by both parties. The developer also alleged that the summary constituted a further binding agreement between the parties. The developer alleged that “[t]hese documents formed a binding contract which required both parties to do certain specified tasks and to negotiate the ‘open terms’ in good faith to finalize the agreement” and that the City breached the IRA by “voting to terminate discussions and failing to obtain an economic analysis of [the developer’s] proposal.”

In February 2015, the City filed a motion for summary judgment, arguing that the IRA did not constitute a final, binding contract. The City asserted that there were outstanding issues requiring negotiation and that the IRA was merely an agreement to agree, which is unenforceable as a matter of law. The City also argued that the summary was not binding on the City because the city manager did not have authority to bind the City to a contract and that the summary was not a final contract because it contemplated a final development agreement. The City further contended that even if a contract was created, the developer breached the land lease provision. The developer responded that when all of the evidence is considered in the light most favorable to the developer, the court could not conclude that no contract was formed. The developer argued that if the parties “did not intend to be bound [by the IRA,] there would have been no need for notice provisions, default language and prevailing party attorney’s fees in the event of litigation.” As for the City’s alternative claim that the developer breached the contract, the developer argued that this was a question of fact to be determined by the jury.

On June 3, 2015, the trial court entered an order granting the City’s motion for summary judgment. The trial court ruled that the “undisputed facts and record evidence demonstrate that no contract was formed by virtue of the expired [IRA] and the subsequent [summary]” and that “no breach of contract could have occurred.” On July 23, 2015, the trial court entered final judgment in favor of the City.

II. Analysis

On appeal, the developer argues that the trial court erred in granting summary judgment because questions of fact exist regarding whether a contract was formed and whether the IRA expired. The developer contends that the trial court found that no contract was formed but also that the IRA had expired; the developer argues that the trial court’s ruling is illogical because a contract cannot expire if it was not formed.

We review de novo a trial court’s granting of summary judgment. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). A movant is entitled to summary judgment if the pleadings and the summary judgment evidence show “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). In reviewing a summary judgment ruling, we must consider the evidence in the light most favorable to the nonmoving party, and if the record raises the slightest doubt that an issue might exist, we must reverse the summary judgment. Atria Grp., LLC v. One Progress Plaza, II, LLC, 170 So.3d 884, 886 (Fla. 2d DCA 2015) (quoting Knowles v. JPMorgan Chase Bank, N.A., 994 So.2d 1218, 1219 (Fla. 2d DCA 2008)); Stroud by Schuette v. Strawn, 675 So.2d 646, 647 (Fla. 2d DCA 1996) (citing Athans v. Soble, 553 So.2d 1361, 1362-63 (Fla. 2d DCA 1989)).

In its order granting summary judgment, the trial court stated “that no contract was formed by virtue of the expired [IRA] and the subsequent [summary].” But the only indication of an expiration date is found at paragraph 14 of the IRA, which provides: “In the event that the parties hereto have not approved and executed a final Redevelopment Agreement by February 15, 2007, then this [IRA] shall terminate and shall have no further force and effect.” The problem with this expiration date is that it predates the signing of the IRA by the parties on November 13, 2007. In opposition to the City’s motion for summary judgment, the developer submitted an affidavit of Matthew T. Leiter, agent and manager of the developer. He attested that the February 15, 2007, date in paragraph 14 was “disregarded by the City and the [d]eveloper.” The City did not present any evidence to the contrary or any evidence that the parties mutually agreed to and operated under another expiration date. Therefore, in reviewing the evidence in the light most favorable to the developer, the trial court erred in ruling that the IRA had expired.

We also conclude that the trial court erred to the extent that it granted summary judgment on the basis that no contract was formed between the parties. The City argued that the IRA was simply an agreement between the parties to later agree to a binding contract. The City relies on the legal proposition that an agreement to agree is unenforceable as a matter of law. See ABC Liquors, Inc. v. Centimark Corp., 967 So.2d 1053, 1056 (Fla. 5th DCA 2007). But a review of the IRA leads us to conclude that it is not merely an agreement to agree in the future. While the language of the IRA clearly demonstrates that the parties intended to enter into another agreement on a future date, the language also demonstrates that the parties agreed upon essential and definite terms and that the parties intended for the IRA to be a binding contract. The IRA is a twenty-three-page document that outlines numerous obligations of the parties regarding various aspects of the development project. The default and attorneys’ fees provisions further evidence the parties’ intentions that they be bound by the IRA.

The IRA specifically stated that the terms of the IRA will be incorporated into a final agreement and that the final agreement will address other issues including, but not limited to, the amount of the lease payments, temporary access to the parking garage, the developer’s parking rights, the responsibility for the cost of offsite improvements, and the definition of the term “net proceeds” as used in the section on attainable housing units. It is clear from this provision that certain details of the project had not been agreed-upon by the parties and would be subject to negotiations at a later date, but this provision itself does not render the entire IRA unenforceable where it is clear that the parties agreed on other essential' terms and expressed’an intention to be bound by them. See Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So.2d 404, 408 (Fla. 1974) (“Even though all the details are not definitely fixed, an agreement may be binding if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them.”); ABC Liquors, Inc., 967 So.2d at 1057 (citing Blackhawk Heating & Plumbing Co., 302 So.2d at 408). We express no opinion regarding whether certain provisions themselves are unenforceable or whether the developer will be able to prove its breach of contract claim against the City.

In sum, the trial court erred in granting summary judgment in favor of the City for the reasons that it stated. Accordingly, we reverse the summary judgment and remand for further proceedings.

WALLACE and ROTHSTEIN-YOUAKIM, JJ., Concur.


source: Caselaw Access Project

author: ROBERTS, C.J. B.L.THOMAS, J.,

license: Public Domain

text:
    Anthony M. WAIT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1167
    District Court of Appeal of Florida, First District.
    Opinion filed March 3, 2017.

      Rachael Elizabeth Bushey of O’Brien Hatfield, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, C.J.

Appellant, Anthony M. Wait, appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We affirm.

Appellant and a co-defendant were charged (under the principal theory) with making, possessing, throwing, or discharging of a destructive device, which carried a mandatory minimum sentence of ten years’ imprisonment, and with transporting a firebomb. The co-defendant went to trial first and was acquitted. After the former co-defendant was acquitted, he agreed to testify against Appellant. Right before Appellant’s trial began, Appellant rejected a favorable plea offer that would have adjudicated him guilty of a felony, required him to write a letter of apology to the victim, and would have placed him on two years of community control followed by three years of probation. Appellant proceeded to trial and was convicted of both crimes.

In Appellant’s motion for post-conviction relief, he argued that his trial counsel was ineffective for failing to properly advise him to accept the plea offer and about all of the pertinent matters, such as the principal theory, relevant to his case. He further argued that trial counsel’s failure to advise him about all of the pertinent matters denied him the ability to make an informed decision about whether or not he should accept the plea offer. The post-conviction court granted Appellant an evi-dentiary hearing and made extensive findings. On appeal, Appellant now argues that trial counsel was ineffective when she affirmatively advised him to reject a favorable plea based upon her unreasonable expectations of success at trial. Since Appellant did not amend his post-conviction relief motion below to say that trial counsel affirmatively advised him to reject the plea, the State was denied the opportunity to conclusively refute the inference that trial counsel conveyed her personal beliefs about Appellant’s case to Appellant. His rephrased argument on appeal invites a different analysis from the analysis provided by the post-conviction court and invites this Court to improperly dismiss the post-conviction court’s findings of credibility and reweigh the evidence. We decline to accept Appellant rephrased argument on appeal.

During the evidentiary hearing on Appellant’s post-conviction motion, Appellant’s trial counsel testified that she met with Appellant multiple times and went over the evidence against him including: the discovery she received from the State; Appellant’s entire interrogation with the law enforcement; the evidence from the former co-defendant’s trial; the applicable case law including the principal theory; and the former co-defendant’s deposition. Trial counsel testified that she gave Appellant a copy of his interrogation and they discussed Appellant’s incriminating statements. Trial counsel also testified that she believed Appellant understood the principal theory based upon his testimony at trial, which was he did not know about the former co-defendant’s intentions nor that there was a firebomb in the car. The post-conviction court found trial counsel’s testimony more credible than Appellant’s testimony with regards to the legal advice that she provided to Appellant and found Appellant understood the principal theory based upon his trial testimony. Trial counsel affirmatively testified that she never advised Appellant to reject the plea offer and had advised Appellant that it was a “good plea.” Appellant testified that trial counsel told him to reject the plea offer, but the post-conviction court did not find Appellant’s testimony credible. Trial counsel testified that she left the decision up to Appellant about whether or not to accept the plea offer.

Because the evidence does not show that trial counsel actually advised Appellant to accept the plea, the post-conviction court had to determine whether or not trial counsel provided Appellant with enough information to allow him to make an informed decision about whether or not he should accept the plea. The inquiry must focus on what trial counsel conveyed to Appellant about his chance of an acquittal and not on what she believed. Trial counsel testified that she told Appellant that it was “possible for him to win” and he had a “chance,” but she also said she would not guarantee success. There is no credible record evidence, as suggested by the dissent, that trial counsel conveyed or displayed her confidence of obtaining an acquittal to Appellant.

In her assessment of Appellant’s chance of an acquittal at trial, trial counsel testified that Appellant’s case and the former co-defendant’s case possessed the same operative facts with two exceptions. Those two exceptions are the testimony of the former co-defendant and Appellant’s own inculpatory statements that he was talked into going along with the former co-defendant’s plan to throw the firebomb at the victim’s house and that he drove the former co-defendant to the house. Appellant admitted that trial counsel went over his statements to law enforcement and Appellant thought those statements could be harmful if that interrogation was played for the jury. Appellant also admitted that trial counsel went over the deposition of the former co-defendant with him. Appellant knew that the former co-defendant was going to testify against him and identify him as the person who threw the firebomb. Appellant admitted that trial counsel told him that his case would come down to credibility. The court found trial counsel’s assessment that it was “possible” for Appellant to be acquitted was not unreasonable based upon her perspective at the time Appellant rejected the plea offer. It also found trial counsel was not ineffective.

We review the post-conviction court’s factual findings for competent, substantial evidence and its legal conclusions de novo. See Stephens v. State, 748 So.2d 1028, 1033 (Fla. 1999). This Court will not substitute its judgment for that of the post-conviction court on questions of fact, the credibility of witnesses, or the weight given to the evidence. See Blanco v. State, 702 So.2d 1250, 1252 (Fla. 1997).

The framework for analyzing claims of ineffective assistance of counsel was articulated in Strickland v. Washington:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The post-conviction court is instructed to view trial counsel’s performance from her perspective at the time of the event in order to avoid the distorting effects of hindsight. Id at 689, 104 S.Ct. 2052.

The dissent is correct in stating that trial counsel had a duty to correctly advise Appellant about his chance at trial. There is nothing in the record, other than Appellant’s vacillating testimony during the post-conviction relief hearing that was found not to be credible, that shows trial counsel’s assessment of a chance of or a possibility of an acquittal was inaccurate. Actually, there is competent, substantial evidence to support the post-conviction court’s finding that trial counsel’s assessment that it was “possible” for Appellant to be acquitted at trial was not unreasonable. Trial counsel informed Appellant that his ease came down to credibility. Trial counsel was going to do her best to discredit the former co-defendant as he was high on pills, and inebriated at the time of the incident. During the former co-defendant’s deposition, he admitted that he initially lied to law enforcement about his presence at the scene of the crime and only told them that Appellant threw the firebomb after law enforcement confronted him with evidence that he was present. Additionally, the former co-defendant did not actually see Appellant throw the firebomb. Appellant told trial counsel that he had been coerced into giving law enforcement the statements that he provided during his interview, and she found him credible. If the jury had found Appellant’s testimony at trial more credible than the other evidence presented, this case would not be before this Court. Therefore, the dissent’s assertion that Appellant had no possibility of an acquittal is inaccurate. There is a distinct difference between the words “possible” or “chance” and “reasonable chance” as it is “possible” and one does have a “chance” to win the lottery, but one does not have a “reasonable possibility” to win the lottery. Trial counsel informed Appellant about" the things that must happen in order for Appellant to obtain an acquittal. Therefore, trial counsels advice was accurate.

Trial counsel’s conveyed assessment of a “possible” acquittal with the understanding that the jury would have to find Appellant’s .testimony at trial more credible than the other evidence, along with the explanation about how the case law applied to all the evidence, provided Appellant all the information required by the law to make an informed decision about whether or not he should accept the plea offer. The record reveals that Appellant was reluctant to accept the favorable plea offer because he would become a convicted felon by entering the plea. Trial counsel testified that Appellant told her he did not want to be a convicted felon over “burnt grass.” Appellant was also a nursing student who was close to finishing his bachelor’s degree and knew he would not be able to be a licensed nurse if he was a convicted felon. Knowing his fate was sealed if the jury did not find his trial testimony more credible than the other evidence, he still chose to take his case to trial. There is nothing in the record, as suggested by the dissent, to suggest that trial counsel did not make him aware of what he was facing if the jury found his testimony less credible than the other evidence other than Appellant’s vacillating testimony about what he and tidal counsel discussed. If this Court were to accept the statement that Appellant did not know what would happen if the jury did not believe his trial testimony, then that would mean Appellant did not know he was facing a minimum mandatory sentence of ten years in prison. The post-conviction court stated that trial counsel did not fail to advise Appellant of that fact, and Appellant did not raise that claim in his motion for post-conviction relief.

In retrospect, Appellant should have taken the plea, but this Court cannot look at the facts through the eyes of someone who did not obtain an acquittal. This Court can only view facts as they existed at the time Appellant rejected the plea offer and chose to go to trial. Appellant was provided the facts required by law to make an informed decision about whether or not he should have accepted the plea offer. Based upon the fact that Appellant knew his case came down to his credibility at trial, his former co-defendant was going to testify that Appellant was solely responsible for the crimes, and his own prior statements would be used against him, it is not likely that he would have accepted the plea offer had trial counsel advised him as suggested by the dissent. It is more likely that Appellant would have fired his trial counsel and sought new counsel who would have sought an acquittal rather than urge him to accept the plea.

Even if the post-conviction court had found trial counsel was ineffective, Appellant cannot show prejudice. Under Strickland, Appellant had to show that trial counsel’s performance was deficient and he was prejudiced by her performance in order to be entitled to relief. Id, at 687, 104 S.Ct. 2052. In order to show prejudice, a defendant must show that: (1) he would have accepted the plea offer had trial counsel advised him correctly; (2) the State would not have withdrawn the plea offer; (3) the trial court would have accepted the plea offer; and (4) the conviction or sentence or both would have been less severe under the plea offer than the defendant received under the judgment and sentence that were actually imposed. Cruz-Betanzos v. State, 169 So.8d 1236, 1237 (Fla. 1st DCA 2015). The post-conviction court found Appellant’s testimony that he would have accepted the plea offer unbelievable. The post-conviction court is the court that assesses credibility and assigns the weight of the evidence, and this Court cannot substitute its judgment for that of the post-conviction court. See Stephens, 748 So.2d at 1033. The dissent fails to acknowledge that the post-conviction court made a finding of fact that Appellant would not have accepted the plea offer, and that finding is supported by competent and substantial evidence. The post-conviction court’s finding is supported by its credibility finding that Appellant’s testimony was not believable that he would have accepted the plea and trial counsel’s testimony about her conversations with Appellant and his reluctance to become a convicted felon.

AFFIRMED.

WOLF, J., CONCURS; B.L. THOMAS, J., DISSENTS with opinion.

B.L.THOMAS, J.,

DISSENTING.

I respectfully dissent, because Appellant established that he was entitled to relief under Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Alcorn v. State, 121 So.3d 419 (Fla. 2013). Defense counsel provided ineffective assistance to Appellant by affirmatively advising him that he had a “possibility” of obtaining an acquittal, when under the “facts and circumstances” of this ease, Appellant had a zero possibility of obtaining an acquittal. Cfi Morgan v. State, 991 So.2d 835, 841 (Fla. 2008) (affirming denial of eviden-tiary hearing where, although defense counsel informed client he should reject plea offer, and defendant was convicted and received harsher sentence, defendant failed to allege that “counsel’s assessment of the chances of success at trial was unreasonable under the facts and circumstances of this case”), receded from on other grounds by Alcorn, 121 So.3d at 419. Defense counsel, who had never previously tried a criminal case in Florida, failed to properly inform Appellant that he had no reasonable alternative to accepting the State’s highly advantageous plea offer, which required no incarceration. Defense counsel misled Appellant, who, thinking he could be acquitted, was predictably convicted and received a mandatory ten-year prison term.

Defense counsel’s unjustified confidence regarding the likely outcome at trial mi-sadvised Appellant at a critical stage of the criminal prosecution. Thus, counsel provided ineffective assistance, in violation of the Sixth Amendment to the United States Constitution, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Based on the evidence, including Appellant’s motive and his inculpatory statements to the police, no reasonable jury would have acquitted Appellant. This was not a case where, identification was at issue, where the State’s testifying witness was cooperating in order to hope to receive a more favorable plea offer, or where the occurrence of the crime was in question. Instead, this was a case where any reasonable defense counsel would have warned Appellant in the most vigorous manner possible that a jury would find Appellant guilty.

When an attorney negligently advises a client that they may have a possibility for an acquittal, when in fact there is no reasonable possibility for such a result, ineffective assistance is demonstrated if the defendant testifies that he or she would have accepted the plea offer with professionally accurate advice. See Hauter v. State, 206 So.3d 839 (Fla. 5th DCA 2016) (citing Lamb v. State, 202 So.3d 118, 120 (Fla. 5th DCA 2016), for proposition that “ ‘[a] claim that misinformation supplied by counsel induced a defendant to reject a favorable plea offer’ ” can state a facially valid postconviction claim, and that defendant must allege that “counsel’s assessment of the chances of success at trial was unreasonable” (quoting Colon v. State, 909 So.2d 484, 490 (Fla. 5th DCA 2005))); Paul v. State, 198 So.3d 999, 1000 (Fla. 4th DCA 2016) (ordering hearing on claim, based in part on defendant’s claim that counsel failed to inform him of maximum sentence or “why case was not defensible”). Here, despite defense counsel’s unrebutted testimony that she informed Appellant the plea offer was a good offer, she failed to advise Appellant to forego a trial that was certain to result in a conviction and mandatory prison term. Instead of enabling Appellant’s wishful thinking that he (and counsel) might prevail at trial, defense counsel had an affirmative obligation to do just the opposite—encourage Appellant to accept the plea offer in the firmest manner, consistent with counsel’s obligation to zealously represent Appellant at trial.

Although the trial court rejected the credibility of Appellant’s self-serving testimony that counsel had not informed him that his pretrial statements were inculpa-tory, even this finding supports rather than defeats Appellant’s argument, in part, at least, as it goes to the reality faced by defense counsel and Appellant: Appellant’s own words to law enforcement were sure to inculpate him before the jury, providing all the more reason to accept the plea offer.

Furthermore, there are two fundamental and salient facts here which are not in dispute regarding the evidence Appellant faced at trial. First, there was no dispute that the person testifying against Appellant, who had previously been charged and acquitted, was going to identify Appellant as the person who was the actual perpetrator in firebombing the doctor’s home. And second, this same witness would credibly establish, along with other evidence, that no one except Appellant had any motive to commit this violent crime, because Appellant thought the victim, a doctor, had provided negligent medical care to Appellant’s grandmother. And the acquittal of the other party who testified against Appellant was not a fact or circumstance that favored Appellant. The other party did not give similar inculpatory pretrial statements and did not have Appellant’s motive for committing the crime. Even if there was evidence that the other party may have been a principal to the offense, this fact did not exculpate Appellant, but only gave the jury reason to think Appellant was the actual perpetrator who relied on the other party’s experience with explosives to help carry out the crime.

Despite these monumental disadvantages, however, defense counsel advised Appellant that there was a real possibility of success:

I advised him that it is possible that he can win. I advised him also that he could take the plea. I would never go to trial knowing the client would lose. If he thought he had a chance, if I thought no way you had a chance, I would get off the case before I tried the case.
But if he was confident that he could win and I was confident that he could win, I was confident that we could at least cast reasonable doubt, then yes, I’d say there is a chance you can win. I would never guarantee success, ever. But, yes, I gave him a chance that, I did say there was a chance he could win.

(Emphasis added.) This was not trial strategy, but unjustified confidence and a failure to properly advise Appellant that he had to accept the plea if he wanted to avoid a sure conviction and ten years in state prison. Defense counsel’s illusory evaluation of success was not based on any reasonable view of the evidence, but only on mutually reinforcing false hopes between defense counsel and Appellant. Defense counsel’s performance was therefore deficient by misleading Appellant into a false expectation of success at trial, despite the overwhelming evidence of Appellant’s guilt.

The fact that Appellant, a person not trained in the law, thought he might obtain an acquittal is not dispositive, when the deficient performance is defense counsel’s failure to warn of the adverse consequences Appellant was certain to suffer should he go to trial. It is only speculation to assume Appellant would have continued to obstinately refuse to accept such a generous plea offer, given the State’s evidence, as it was defense counsel’s professional obligation, as counsel, to properly advise Appellant, which would have removed all doubt as to whether Appellant would have accepted a plea offer that no rational defendant would refuse. Cf. Munoz v. S. Miami Hosp., Inc., 764 So.2d 854, 857 (Fla. 3d DCA 2000) (stating that “[i]t simply flies in the face of common sense” and indulges in improper speculation to uphold summary judgment based on physician’s failure to warn other physician of potential adverse medical consequences “conveyed with due concern and gravity by pi’ofessional colleagues,” even where physician, who was not warned, testified he received similar information from lay person). Here, it “flies in the face of common sense” to speculate that Appellant would have chosen a conviction and ten years’ imprisonment, rather than plead guilty but avoid incarceration. Appellant, like all criminal defendants, must rely on the legal advice of an attorney to “convey[] with due concern and gravity” the catastrophic consequences that will follow a reckless decision to turn down the only viable option of a favorable and lenient plea settlement when faced with a certain conviction and lengthy incarceration. Id.

In order to determine if a defendant was prejudiced by trial counsel’s deficiencies during a plea offer, a defendant must show that: (1) he would have accepted the plea offer had trial counsel advised him correctly; (2) the State would not have withdrawn the plea offer; (3) the trial court would have accepted the plea offer; and (4) the conviction or sentence or both would have been less severe under the plea offer than the defendant received under the judgment and sentence that were actually imposed. Cruz-Betanzos v. State, 169 So.3d 1236, 1237 (Fla. 1st DCA 2015). All criteria here are met. Because of defense counsel’s ineffective legal advice, Appellant was denied the opportunity to make an informed choice, and the record shows that had he been properly informed, in blunt, no-uncertain terms that he was going to be convicted and would be required to serve a ten-year prison term, he would have chosen to accept the plea offer. While the court found that Appellant did not want to accept the plea so he could continue with his nursing education, a guilty verdict, conviction and a ten-year prison term were obviously going to preclude that option. Furthermore, there was no dispute that the plea remained in effect or that the trial court would have accepted the plea.

A criminal trial is not the occasion for hoping for a miracle at a client’s expense. Had defense counsel properly advised Appellant, when on the day of trial counsel put on the record that a plea offer was made and rejected, then the ineffectiveness claim could be rejected. But this would require that defense counsel inform the court, and Appellant, that counsel had urged him, to accept the plea, advised that he was highly likely to be convicted because the evidence was overwhelming, and that Appellant’s rejection of the very reasonable plea offer was against defense counsel’s clear advice to the contrary.

Defense counsel acknowledged that, had she thought there was no possible chance for an acquittal (which there wasn’t, absent a jury pardon), she would have declined to represent Appellant at trial. But that is not the proper response here. Instead, what defense counsel should have told Appellant, in so many words, was: “You have no reasonable chance of winning this trial, and if you turn down the plea, you are choosing a prison sentence over a sentence of house arrest and probation, so I must urge you in the most strenuous terms possible to accept the plea, and if you do not, I must establish a record that your decision is against my legal advice.” Whether defense counsel would then be allowed to withdraw from representing Appellant is not relevant here. And had Appellant, in this scenario, demanded defense counsel withdraw, this issue would not be before us here.

The final question here is what precise remedy should be provided. The State had offered a plea of no incarceration, but community supervision of five years, to include two' years of community control. If Appellant was granted relief, I would have recommended the trial court consider' the analysis and commentary of Lafler:

The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.
In some situations it may be that resen-tencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. See, e.g., Williams[ v. Jones], 571 F.3d [1086] at 1088 [(10th Cir. 2009)]; Riggs v. Fairman, 399 F.3d 1179, 1181 (C.A.9 2005). In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.
In implementing a remedy in both of these situations, the trial court, must weigh various factors; and the boundaries of proper discretion need not be defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge’s discretion. At this point, however, it suffices to note two considerations that are of relevance. First, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made. The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer, but that baseline can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial.

Lafler v. Cooper, 132 S.Ct. at 1389.

Here, this case appears to qualify for the second category described in Lafler, because Appellant was convicted of an offense requiring imposition of a mandatory prison term. Thus, the most practical remedy would be to order the state attorney to reoffer the original plea offer, allow Appellant to accept a modified plea offer which includes a guilty plea to both offenses, and credit for time served in state prison up to the date this case is resolved, and issue an order vacating the conviction resulting from the trial. Alcorn, 121 So.3d at 428-29. This was a very serious crime, and Appellant’s legal and moral culpability is not in doubt. The prison sentence he has served is appropriate punishment for this violent offense, and by including it in a modified postconviction plea offer, the interests of justice and the recognition of the “considerable resources the State properly invested in [Appellant’s] prosecution” would be properly accommodated. Id at 428, As recognized in Lafler, the courts which face these types of claims must be allowed latitude in crafting remedies.

I would reverse for the reasons stated above for' further proceedings. Thus, I respectfully dissent.

      . The trial court conducted a prompt and comprehensive evidentiary hearing, and while I disagree with the legal conclusions of the trial court’s order, based on the facts adduced at the hearing in a light most favorable to the order, I commend the trial court’s efforts to ensure Appellant’s claim was thoroughly and timely evaluated.


author: PER CURIAM.

text:
    Vince E. WARDLOW, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D16-370
    District Court of Appeal of Florida, Second District.
    Opinion filed March 10, 2017

      Vince E. Wardlow, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Vince E. Wardlow filed a petition for writ of habeas corpus challenging his second-degree murder conviction. For the reasons explained below, we grant his petition, reverse his judgment and sentence, and remand for a new trial.

On June 21, 2007, a jury found Mr. Wardlow guilty of second-degree murder. Mr. Wardlow appealed his judgment and sentence, filing his initial brief on September 5, 2008, and his amended initial brief on October 20, 2008. The State filed its answer brief on January 12, 2009. This court affirmed his judgment and sentence without written opinion on May 6, 2009. Wardlow v. State, 11 So.3d 865 (Fla. 2d DCA 2009) (table decision).

During the pendency of Mr. Wardlow’s direct appeal, the First District issued its opinion in Montgomery v. State, 70 So.3d 603, 604-05 (Fla. 1st DCA 2009), holding that the then-standard jury instruction for manslaughter by intentional act was fundamentally erroneous because it added an element of intent not present in the statutory definition of the crime. The Florida Supreme Court subsequently approved this opinion, holding that the then-standard jury instruction constituted fundamental error because Montgomery was convicted of second-degree murder, an offense only one step removed from manslaughter. State v. Montgomery, 39 So.3d 252, 259 (Fla. 2010).

Mr. Wardlow’s jury received the same standard instruction, but despite the First District’s opinion in Montgomery, which issued nearly three months before this court affirmed Mr. Wardlow’s judgment and sentence, his appellate counsel did not argue that the instruction constituted fundamental error. Shortly after we affirmed Mr. Wardlow’s conviction on direct appeal, he challenged this omission in a petition alleging ineffective assistance of appellate counsel filed under Florida Rule of Appellate Procedure 9.141(c). This court denied the petition without written opinion or citation. Wardlow v. State, 19 So.3d 993 (Fla. 2d DCA 2009) (table decision).

Subsequently, this court granted petitions in two other cases alleging ineffective assistance of appellate counsel, holding that the petitioners’ appellate counsel were ineffective for failing to seek supplemental briefing based on the First District’s opinion in Montgomery, which issued after the petitioners filed their initial briefs and the State filed its answer briefs but before this court affirmed the petitioners’ judgments and sentences. See Henry v. State, 98 So.3d 1193, 1194 (Fla. 2d DCA 2012) (“Henry’s initial brief was filed October 13, 2008, and the State’s answer brief was filed December 24, 2008 .... However, this court did not issue its decision in Henry’s direct appeal until April 29, 2009.... [A]ppellate counsel in Henry’s direct appeal had an opportunity after Montgomery issued to seek leave to submit supplemental briefing on the issue of whether the attempted manslaughter by act instruction was fundamentally erroneous based on the reasoning in Montgomery. Appellate counsel’s failure to seek such leave constituted deficient performance.”); Banek v. State, 75 So.3d 762, 764 (Fla. 2d DCA 2011) (“[T]he initial brief was filed on December 16, 2008, and the answer brief was filed on January 5, 2009—both prior to the issuance of the First District’s Montgomery opinion. However, because our per curiam affirmance in Banek did not issue until three months after the issuance of the First District’s opinion, appellate counsel should have sought to file a supplemental brief.”).

At the time Mr. Wardlow filed his petition, this court had not held that the then-standard jury instruction constituted fundamental error, and even after the supreme court’s Montgomery opinion issued, this court held that the error in the standard instruction was not fundamental when, as in Mr. Wardlow’s case, the jury was also instructed on manslaughter by culpable negligence. See Barros-Dias v. State, 41 So.3d 370, 372 (Fla. 2d DCA 2010), Nieves v. State, 22 So.3d 691, 692 (Fla. 2d DCA 2009). However, had this court denied Mr. Wardlow’s petition with an opinion or a citation, Mr. Wardlow could have sought and obtained relief from the Florida Supreme Court. See Haygood v. State, 109 So.3d 735 (Fla. 2013) (quashing this court’s decision and holding that the trial court’s fundamental error in giving the erroneous jury instruction on manslaughter by act was not cured by also instructing the jury on manslaughter by culpable negligence); Nieves v. State, 184 So.3d 1148 (Fla. 2d DCA 2015) (holding on remand from the supreme court that the jury instruction for manslaughter by act constituted fundamental error, reversing the conviction and remanding for a new trial); Barros-Dias v. State, 141 So.3d 674 (Fla. 2d DCA 2014) (same); see also Walden v. State, 162 So.3d 84, 84 (Fla. 4th DCA 2014) (“If this Court had provided a citation to Williams, where we had certified a question of great public importance and conflict on the issue, Walden could have obtained relief from the Florida Supreme Court and would be entitled to a new trial. Because it would be manifestly unjust to deny him the same remedy, we grant habeas corpus relief.”); Wimberly v. State, 162 So.3d 73, 74-75 (Fla. 4th DCA 2014) (granting relief on remand from the Florida Supreme Court after the Fourth District denied the petition alleging ineffective assistance of appellate counsel with citation to an opinion holding the erroneous instruction for attempted manslaughter by act was not fundamental error).

“Under Florida law, appellate courts have ‘the power to reconsider and correct erroneous rulings [made in earlier appeals] in exceptional circumstances and where reliance on the previous decision would result in manifest injustice.’ ” State v. Akins, 69 So.3d 261, 268 (Fla. 2011) (alteration in original) (quoting Muehleman v. State, 3 So.3d 1149, 1165 (Fla. 2009)). In order to avoid manifest injustice, both the Fourth and Fifth Districts have granted new trials to petitioners after denying without citation or explanation ineffective assistance of appellate counsel claims based on the failure to argue the fundamental error explained in Montgomery. See Page v. State, 201 So.3d 207 (Fla. 5th DCA 2016) (granting the petitioner’s petition for writ of habeas corpus after denying the petitioner’s ineffective assistance of appellate counsel claim without explanation or citation); Paul v. State, 183 So.3d 1154 (Fla. 5th DCA 2015) (holding that although the court twice denied Paul’s petitions for writ of habeas corpus that challenged the jury instruction held to be fundamental error in Montgomery, manifest injustice would result if Paul was not afforded a new trial); Gibson v. State, 152 So.3d 696, 696 (Fla. 4th DCA 2014) (“Had this court provided a citation to Williams in our denial of Gibson’s first petition, Gibson could have obtained relief from the Florida Supreme Court. Because it would result in a manifest injustice to deny Gibson the same relief, we grant the petition and remand for a new trial.” (citations omitted)); Coleman v. State, 128 So.3d 193, 194 (Fla. 5th DCA 2013) (granting a successive petition claiming ineffective assistance of appellate counsel after a prior petition arguing a Montgomery claim was denied without explanation). Because we conclude that to deny Mr. Wardlow relief under these circumstances would result in a manifest injustice, we grant Mr. Ward-low relief.

Mr. Wardlow has established that the denial of his petition filed under rule 9.141(c) without written opinion or citation is an incongruous and unfair result. The Attorney General has conceded that the manslaughter by act instruction given to Mr. Wardlow’s jury “would be fundamental, reversible error” under current law. See Horne v. State, 128 So.3d 953, 956 (Fla. 2d DCA 2013) (“This court applies the law in effect at the time of the appeal to determine whether counsel’s performance was deficient, but it applies current law to determine whether the petitioner is entitled to relief.”). Our review of Mr. Wardlow’s record on direct appeal does not reveal that he expressly conceded that that the person who killed the victim did so with “a depraved mind regardless of human life.” See § 782.04(2), Fla. Stat. (2006). Thus, consistent with Page, Paul, Gibson, and Coleman, we grant Mr. Wardlow’s petition, reverse his judgment and sentence for second-degree murder, and remand for a new trial. See Griffin v. State, 160 So.3d 63, 69 (Fla. 2015) (holding that unless a defendant expressly concedes the issue of intent, the issue is in dispute and the erroneous addition of the element of intent in the jury instruction for manslaughter by act is fundamental error that requires reversal when the defendant is convicted of second-degree murder).

Petition granted.

SILBERMAN, SLEET, and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Petitions alleging ineffective assistance of appellate counsel are now filed under rule 9.141(d). See In re Amendments to Fla. Rules of Criminal Procedure 3.850 & 3.851, 72 So.3d 735, 738 (Fla. 2011).


author: TORPY, J.

text:
    STATE of Florida, Appellant, v. Alain Laffitte GONZALEZ, Appellee.
    Case No. 5D15-4099
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 10, 2017

      Pamela Jo Bondi, -Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    Annette Schultz, of Annette Schultz Law Group, PA, Orlando, for Appellee.
   TORPY, J.

The State challenges an order striking its information and dismissing the charge of leaving the scene of an automobile crash involving injuries, based upon the alleged failure of the State to obtain sworn testimony from a “material witness,” as required by Florida Rule of Criminal Procedure 3.140. In this case, the State did not obtain an affidavit or equivalent from the victim of the collision prior to filing the information. Instead, it obtained the affidavit of the investigating officer who responded to the scene of the collision, observed the damage to the victim’s motorcycle and the injuries to the victim, obtained a description from the victim of the other vehicle, located the other vehicle (found in Appellee’s possession), observed the corresponding damage to Appellee’s vehicle, and obtained a confession from Appellee after Miranda warnings were given. Appellee challenged the sufficiency of the evidence upon which the information was based, contending that the only “material witness” was the victim of the hit-and-run and that the lack of sufficient sworn testimony necessitated that the information be stricken or dismissed. We reverse.

Except in rare circumstances— such as when a prosecutor knowingly relies on false evidence—in ruling on a motion to strike or quash an indictment or information, “a court should not ... ‘consider the ... sufficiency of the evidence upon which an indictment or information is based.’” Murray v. State, 3 So.3d 1108, 1118 (Fla. 2009) (quoting Fratello v. State, 496 So.2d 903, 911 (Fla. 4th DCA 1986)). This is because a charging document is “no more than an accusation, the merits of which will be determined at trial,” and the threshold of proof to levy a criminal charge is “probable cause,” not proof beyond a reasonable doubt. Id. Courts are circumspect to afford a criminal defendant with two opportunities to challenge the evidence, once in the context of a challenge to the information or indictment and once at trial. See Fratello, 496 So.2d at 911 (citing Johnson v. State, 157 Fla. 685, 27 So.2d 276, 281 (1946), for proposition that it would be “absurd for a criminal defendant first to have a trial on the sufficiency and legality of the evidence produced in support of the charge, and then a second trial on the legality and sufficiency of the charge itself’); see also Costello v. United States, 360 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (indictment based solely on hearsay not subject to challenge); United States v. Waldon, 363 F.3d 1103, 1109 (11th Cir. 2004) (although some courts criticize the practice, even when indictment is based “solely on hearsay testimony,” it is not subject to challenge based on insufficient evidence to support charge).

Notwithstanding this tenet of law, Ap-pellee identifies one authority in which we sanctioned such a challenge, concluding that the trial court had properly dismissed an information due to the lack of sufficient sworn testimony, pursuant to rule 3.140. In State v. Weinberg, 780 So.2d 214 (Fla. 5th DCA 2001), the trial court dismissed the charge of “obtaining a controlled substance by fraud” because the police detective who had given the only sworn testimony to support the charge was not a “material witness,” as contemplated by rule 3.140. The detective’s affidavit consisted entirely of second-hand information based upon her discussion with a staff member from the complaining doctor’s office. 780 So.2d at 215. Although we did not subscribe to a definition of “material witness,” we concluded that the detective’s testimony had no “importance except for possibly establishing a chain of evidence [for the forged prescription].” Id. at 216.

Rule 3.140 does not contain a definition of “material witness.” Our research reveals two definitions adopted in other contexts, neither of which seems workable here. In Rodriguez v. State, 919 So.2d 1252 (Fla. 2005), the Florida Supreme Court approved a definition in the context of Florida Rule of Judicial Administration 2.160(d)(2), which requires a judge to recuse himself if he will be a “material witness” in a proceeding over which he presides. It concluded that “[a] material witness is one ‘who gives testimony going to some fact affecting the merits of the cause and about which no other witness might testify.’” Rodriguez, 919 So.2d at 1276 (emphasis added) (quoting Wingate v. Mach, 117 Fla. 104,-157 So. 421, 422 (1934)). The second part of this definition—that the witness be essentially indispensable—would exclude even an eyewitness in any case where there are multiple eyewitnesses to the same crime. For this and other reasons, it appears inapplicable in the context of rule 3.140.

In yet another context, our sister court utilized the evidentiary concept of “materiality” to define the phrase. The Third District held that the out-of-state owner of Intoxilyzer source code was not a “material witness” and accordingly could not be compelled to answer a subpoena in this state pursuant to section 942.02, Florida Statutes (2005), because the information sought was not “material”’ to the DUI prosecution, meaning it did not bear on an issue in the case. State v. Bastos, 985 So.2d 37, 41-42 (Fla. 3d DCA 2008). This definition is similar to the first part of the Rodriguez definition. It would classify as “material’ ” any witness having legally relevant information, even if the witness only supplies a small piece of the puzzle. To employ this definition in this context would defeat the rule’s purpose, which is to ensure that prosecutors have a good-faith basis for filing criminal charges. Accordingly, we think it more appropriate to interpret the phrase in the context of this rule.

Our decision in Weinberg turned on our view that the witness’s testimony, even if marginally relevant, was unimportant. Using Weinberg for guidance, we conclude that a “material witness” (or witnesses, as the case may be) for purposes of rule 3.140 is one whose testimony is both legally relevant (meaning it tends to prove or disprove a material fact) and substantial (meaning that it supports the elements of the charged crime). The threshold determination by a prosecutor is whether the sworn testimony is sufficient to establish in the mind of a reasonable prosecutor that there exists probable cause to believe that the defendant committed the crime. In making this determination, just as in the case of an indictment or other probable cause determinations, the prosecutor is not necessarily limited to reliance on legally admissible evidence. For example, a prosecutor may rely on a presumptive field test of drugs when a laboratory report is not yet available. A prosecutor may also rely upon corroborated or otherwise reliable witness statements gathered by an officer in the ordinary course of an investigation, such as a list of stolen property supplied by a merchant. See, e.g., State v. Perkins, 977 So.2d 643, 647 (Fla. 5th DCA 2008) (state may rely on references to prior driving record in officer’s affidavit to support filing felony driving while license suspended charge).

When a challenge is made to an information based on the sufficiency of the sworn testimony upon which the prosecutor relied, consistent with Murray, the question for the trial court is whether the prosecutor acted in good faith, not whether the evidence relied on is substantial enough. Unless the sworn testimony is so lacking that a reasonable prosecutor cannot be said to have acted in good faith, then the challenge should be rejected. Weinberg illustrates such a case. There, the officer related only what was told to her. She failed to obtain recorded or handwritten statements of the witness or independently corroborate the pure hearsay. Under the circumstances there, the trial court properly concluded that the prosecutor had not demonstrated objective good faith.

Here, by contrast, the affidavit is more than sufficient to support a finding of probable cause to levy the charge. It contains substantial evidence of the crime, not the least of which was a confession. The victim’s statement to the officer might qualify as an exception to the hearsay rule and is nevertheless inherently reliable due to the circumstances under which it was given and the independent corroboration by the officer. Even without the consideration of the hearsay from the victim, the officer’s testimony alone is sufficient material evidence to support the charge and could potentially support a conviction. Many criminal cases are commenced and proven at trial without victim testimony when the victim is deceased, uncooperative, or otherwise unavailable.

REVERSED AND REMANDED.

ORFINGER, J. and JACOBUS, B.W., Senior Judge, concur.

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

      . Whether chain of custody testimony is needed in this context is not important to our opinion. See C. Ehrhardt, Florida Evidence § 901.3 (2016 ed.) (chain of custody evidence only needed when item susceptible to tampering).

      . The trial court in Weinberg used a similar definition, although we neither approved nor rejected its use.


author: PER CURIAM. MAKAR, J.,

text:
    Robert Lee HENDERSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-0917
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017.
    Andy Thomas, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee; Bruce Miller, Public Defender, and Katherine R. Jaquet, Assistant Public Defender, Shalimar, for Appellant.

      Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

WETHERELL and KELSEY, JJ., CONCUR; MAKAR, J., CONCURS WITH OPINION.

MAKAR, J.,

concurring.

On trial for armed robbery, Robert Lee Henderson chose—against the repeated advice of his attorney and despite an extensive inquiry, abundant admonitions, and cautious cajoling from the trial judge—to wear his prison uniform rather than civilian clothes. For inexplicable reasons, Henderson wanted, to wear the black jacket, white polo, and cargo shorts he wore when he was arrested, but they were not readily available, likely wrinkled and moldy from sitting in the property room for a year, and inappropriate as trial attire; he chose his prison jumpsuit instead, rejecting the freshly-laundered courtroom-appropriate clothing his lawyer provided.

In what his appellate counsel calls “an unusual, perhaps surreal, issue,” Henderson argues it was error for the trial judge to require that he also be shackled during trial, a restraint to which he did not agree. On the first day of trial, prior to jury selection, the extensive discussion among the trial judge, defense counsel, and the prosecutor was initially only about whether Henderson could decide—against his interests—to wear his orange jumpsuit at trial. Once that issue was resolved in Henderson’s favor, the issue of shackling was raised for the first time, defense counsel asking that the “shackles be removed” (to reduce the additional negative impact on the jury of Henderson’s choice of prison clothing) and questioning the need for them (“I really don’t understand how he would need to be shackled”). The trial court, however, viewed the uniform and shackles as a “package deal” that couldn’t be split apart. Much like “shower shoes,” shackles were merely an accoutrement of prison garb that would make no difference to the jurors, who would “figure it out pretty quickly that Henderson was currently incarcerated.

But shackles are qualitatively different than an orange jumpsuit or standard issue PVC prison shower sandals; the former is an inherently prejudicial physical restraint that implies dangerousness that might easily bias a jury. For this reason, courts have required a necessity justification if a defendant is compelled to wear a physical restraint, which was not established in this case. See Bello v. State, 547 So.2d 914, 918 (Fla. 1989) (“Shackling is an ‘inherently prejudicial practice,’ Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525 (1986), and must not be done absent at least some showing of necessity.”). Henderson did not request or agree to wear shackles; he asked only to wear his prison garb, which can be á legitimate trial strategy. See, e.g., Estelle v. Williams, 425 U.S. 501, 508, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (“Hit is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury.”); Demurjian v. State, 727 So.2d 324, 327 (Fla. 4th DCA 1999) (“Counsel testified that it was his tactic to have the jury notice that appellant was wearing prison garb to evoke sympathy.”). Henderson’s trial counsel argued that the shackles would make a bad situation worse, but did not specifically, ask the trial judge to make findings on necessity, which are an obvious safeguard of a fair trial under the Constitution whether requested or not. Miller v. State, 852 So.2d 904, 906-07 (Fla. 4th DCA 2003) (“[I]t seems to me that a prudent judge should initiate the inquiry into a defendant’s restraints or shackles at trial, even where there is no objection. This would remove the issue from the post conviction relief arena, where a separate hearing will almost always be required on the issue.”) (Gross, J., concurring).

All this said, though the trial court should have made a finding on the necessity of forcing Henderson to wear shackles, it cannot be concluded that this error was other than harmless on the unique and slender record in this case. See Carlisle v. State, 105 So.3d 625, 627 (Fla. 5th DCA 2013) (“While the trial court erred in requiring Mr. Carlisle to be shackled in the jury’s presence, the error was harmless.”). The record fails to reflect whether or to what extent the jury could see the shackles, a very important factor. See id. (noting that the trial court “took action to limit the jury’s awareness of the shackles”). And it is irresolvable on the record presented what marginal prejudicial impact the shackles may have had on a jury that, by Henderson’s own choice, saw him in prison garb; the predictable prejudicial impact of Henderson’s voluntary and informed decision to dress as a prisoner may have been enough for the jury to see him in a different light, the additional prejudice of the shackles notwithstanding.

The trial judge, in an attempt to lessen the prejudicial effects of Henderson’s sartorial choice, told the jury:

Mr. Henderson has made an affirmative decision to be tried in this case while wearing clothing issued by the Okaloosa County Jail. This fact must not and cannot be taken into consideration by you during your deliberations, since what a person wears during trial does not constitute evidence of any kind. Furthermore, you must not and cannot make any inferences towards Mr. Henderson’s guilt or innocence based upon the clothing he has chosen to wear during this trial. If Mr. Henderson’s clothing has any affect [sic] on your deliberations or verdict, it will be an invalid verdict.

The intent of this jury instruction is laudable; the trial judge was trying to constrain Henderson’s self-inflicted harm. Because it mentions only “clothing,” it may have highlighted to some jurors that Henderson’s choice extended to only his jumpsuit and not the shackles, thereby inferentially suggesting they were necessary for courtroom security purposes. But again, the record gives us nothing upon which to rely in assessing the matter. And the trial judge’s questioning of the jury post-verdict (asking whether Henderson’s “appearance in jail clothing influence[d] your verdict in any way?”) confirmed that all jurors believed they had made an independent judgment based only on the evidence at trial. For these reasons, and the sufficient evidence to support the jury’s verdict, the trial judge’s failure to establish the necessity of the shackles did not result in a miscarriage of justice. § 59.041, Fla. Stat. (2017).


author: EDWARDS, J. SAWAYA, J., concurs. BERGER, J., dissents with opinion. BERGER, J.,

text:
    Kenneth Tyrone LINTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-4394
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 10, 2017

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona, Beach, for Appellee.
   EDWARDS, J.

Kenneth Linton (“Appellant”) was the gunman and driver in an armed carjacking. He asserts on appeal that his convictions and resulting sentences for one count of first-degree murder with a weapon felony murder (Count I), one count of fleeing or attempting to elude a law enforcement officer causing serious injury or death (Count II), and one count of driving without a valid license causing serious bodily injury or death (Count IV) violate Florida’s double jeopardy law. We agree and remand for the trial court to vacate Appellant’s current judgments and sentences as to Count II and Count IV with instructions to enter modified judgments and sentences.

As Phillip Sagan got out of his car to close the gate in front of his house late one evening, two males, one of whom was Appellant, approached him. Appellant raised a gun to Mr. Sagan’s head and said, “Don’t move, I will shoot you right here.” Appellant then drove away in Mr. Sagan’s car with the other man in the passenger seat. Mr. Sagan immediately called 911 and police responded quickly.

Officers in two patrol vehicles, with emergency lights and sirens activated, pursued Appellant in the speeding car. During this high speed pursuit, Appellant ran multiple red lights and reached speeds in excess of 100 miles per hour. The car crashed and rolled over; both occupants were ejected. Appellant landed near the driver’s side of the car and officers immediately secured him. When asked, Appellant immediately admitted that he was driving the car. Appellant’s passenger, seventeen-year-old David Jones, died from injuries suffered as a result of the accident. Police recovered a firearm from the car.

Appellant was charged by indictment with one count of first-degree murder with a weapon (Count I), one count of fleeing or attempting to elude a law enforcement officer causing serious injury or death (Count II), one count of vehicular homicide (Count III), and one count of driving without a valid license causing serious bodily injury or death (Count IV). During the jury trial, the State presented evidence showing Appellant’s involvement in the carjacking, high speed pursuit, and fatal crash. Appellant did not have a valid driver’s license on the date of the car crash.

The jury found Appellant guilty as charged on all four counts. The trial court sentenced Appellant to life in prison for Count I, thirty years in prison for Count II, fifteen years in prison for Count III, and five years in prison for Count IV, all to run concurrently. Appellant moved for a new trial and for dismissal of Counts III and IV based on double jeopardy. The trial court granted his motion to dismiss as to Count III, but denied it as to Count IV.

Appellant contends that the enhanced convictions of Counts II and IV must be vacated because a single course of conduct causing a single death cannot support convictions for both a homicide offense and an offense enhanced by the same death. Appellate courts review double jeopardy claims de novo. Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006).

The Florida Supreme Court has stated, “Florida courts have repeatedly recognized that the legislature did not intend to punish a single homicide under two different statutes.” Houser v. State, 474 So.2d 1193, 1197 (Fla. 1985) (citations omitted). Based on this rule, the Florida Supreme Court held that a defendant could not be convicted of both DUI manslaughter and driving while license suspended causing the death of another human where only one death resulted. State v. Cooper, 634 So.2d 1074, 1075 (Fla, 1994). The Court explained, “It is entirely appropriate to convict a person of both DUI manslaughter and driving while license is suspended, but it is inappropriate to enhance the degree of both crimes by using a single homicide.” Id, at 1074-75. “[T]here can be but one penalty imposed for causing the death of a single victim.” Id. at 1074; see also Houser, 474 So.2d at 1196-97 (holding that defendant cannot be punished for both DWI manslaughter and vehicular homicide for a single death); Thomas v. State, 837 So.2d 443, 447 (Fla. 4th DCA 2002) (holding that defendant could not be convicted of both second-degree murder and driving while license suspended causing death because “double jeopardy principles prohibit convicting and sentencing appellant for the two homicide offenses arising out of a single death”).

Applying Cooper, Houser, and Thomas to the instant case, we find that Appellant was properly found guilty and sentenced to life in prison on Count I, the first-degree murder of his passenger; however, Counts II and IV cannot be enhanced by that same homicide.

The First District reached a different conclusion in a similar case, McKinney v. State, 51 So.3d 645 (Fla. 1st DCA 2011), in which it held that the defendant, who caused a single collision-related death, could be convicted and sentenced for both third-degree felony murder and fleeing or attempting to elude a law enforcement officer causing death, without violating double jeopardy. 51 So.3d at 648-49. McKinney carjacked a van, led police on a high speed chase, drove erratically, and collided with another car, killing its driver. Id. at 646. The First District rejected McKinney’s claim that he was being punished twice for the death of a single victim, reasoning that the crime of fleeing or eluding is not a “homicide offense” because felony fleeing and eluding can be committed without causing a death. Thus, the court in McKinney reasoned, since “fleeing and eluding” is not a “homicide offense,” the defendant was not being punished twice for one death, even though high-speed fleeing and eluding can be enhanced, as it was in that case, from a second-degree to a first-degree felony if the fleeing and eluding resulted in the death of a person. Id. at 648-49; see also § 316.1935(3)(a)-(b), Fla. Stat. (2008).

The McKinney case does not discuss Cooper. We cannot reconcile McKinney and Cooper because McKinney held that a criminal defendant could be punished more than once for the same death if the underlying charged crime could be committed without causing a death, contravening Cooped s holding that a criminal defendant cannot be punished more than once for the death of a single victim.

Notably, in a more recent case, Crusaw v. State, 195 So.3d 422, 422-23 (Fla. 1st DCA 2016), the First District held that “double jeopardy principles barred era-saw’s conviction for careless driving with a suspended license resulting in death or serious bodily injury” when he was also convicted of vehicular homicide for the same death. The First District cited Cooper as controlling and did not mention its own McKinney decision. See Crusaw, 195 So.3d at 422. Here, we are obliged to follow Cooper because we must follow the precedent set by the Florida Supreme Court. See Hoffman v. Jones, 280 So.2d 431, 440 (Fla. 1973).

Accordingly, we affirm the conviction and sentence for first-degree murder, but reverse and remand with instructions for the trial court to: (1) vacate the current judgment and sentence for Count II and enter judgment convicting Appellant of fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(3)(a), Florida Statutes (2008); and (2) vacate the current judgment and sentence for Count IV and enter judgment convicting Appellant of driving without a valid license. The trial court shall also conduct appropriate proceedings to resentence Appellant based on his modified convictions. We sua sponte certify the conflict between McKinney and our case, and the apparent conflict between McKinney and Cooper.

REVERSED and REMANDED with instructions; CONFLICT CERTIFIED.

SAWAYA, J., concurs.

BERGER, J., dissents with opinion.

BERGER, J.,

dissenting.

Because I believe the majority’s reliance on Cooper to support its decision is misplaced, I respectfully dissent. In my view, McKinney and Cooper are readily distinguishable and no conflict, either real or apparent, exists between the two. With that said, because the facts of this case are nearly identical to McKinney, and because I agree with Judge Wetherell’s well-reasoned opinion in that case, I would affirm.

      . Appellant did not preserve the issue of whether the Count II conviction violates the prohibition against double jeopardy because he only raised the double jeopardy issue as to Count IV before the trial court. However, this Court may still review the issue as to Count II because “such a claim raises a question of fundamental error that can be raised for the first time on direct appeal.” Bailey v. State, 21 So.3d 147, 149 (Fla. 5th DCA 2009) (citations omitted).

      . McKinney refers to section 316.1935(3)(b), Florida Statutes (2008), which includes the element of causing serious injury or death, as "fleeing and eluding.”

      . Likewise, I believe McKinney and Crusaw are distinguishable.


author: JAY, J.

text:
    Justin Devone MORGAN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1630
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017.
    Andy Thomas, Public Defender, Ross Marshman, Special Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Virginia Chester Harris and Kaitlin Weiss, Assistant Attorneys General, Tallahassee, for Appellee.
   JAY, J.

This is a direct criminal appeal from Appellant’s judgment and sentence for resisting an officer without violence and possession of less than twenty grams of cannabis. The sole point raised is whether fundamental error occurred when a primary juror carried to the jury room the alternate juror’s notepad just moments before the bailiff retrieved it at the trial court’s request. We conclude that this simple happenstance did not rise to an error of fundamental proportions, but, instead, was harmless error, if any error at all. Accordingly, we affirm.

The facts are not in dispute. After the trial court instructed the jury, the jury retired to deliberate at 6:03 p.m. Immediately afterwards, the trial court addressed the alternate juror, saying, “If you’ll give us your juror button, we’ll let you go. And we do this in every case, the bailiffs walk out with jurors to their car.” At that point, one of the prosecutors announced, ‘Your Honor, I think we have one thing we need to address really quickly.” The other prosecutor interjected: ‘Your honor, my investigator just informed me he believed he observed one of the jurors take the alternate juror’s notepad back into the jury room.” The first prosecutor added, “I saw it, too.” The trial court said, “Okay, we need to retrieve that.” The investigator was able to describe the juror in question and the bailiff was dispatched to the jury room. The court reporter noted parenthetically for the record that “Bailiff retrieves notepad.” The trial court then declared that the court would be in recess “until we hear from the jury.” The transcript reflects that the proceedings were officially “off the record” at 6:04 p.m.

We are fully cognizant of the need to “carefully and zealously guard[ ] against any intrusions into the deliberations of the jury,” and wholly embrace the proposition that “the presence of any stranger, including an alternate juror, during deliberations constitutes fundamental error.” Bouey v. State, 762 So.2d 537, 539 (Fla. 5th DCA 2000) (citations and footnote omitted). These rules “appl[y] equally to both civil and criminal cases.” Id at 540. However, we are prompted by the specific facts of this case to make the following points in rejecting Appellant’s assertion that the alternate juror’s notepad was the equivalent of a “stranger” in the jury room.

First, the case law relied upon for reversal is wholly inapposite because in this case, the alternate juror was discharged before the jury retired to the jury room and was not physically present during the jury’s deliberations. By contrast, all of the decisions advanced by Appellant involved the alternate juror’s physical presence in the jury room extending beyond the period of mere “organizational activity” and into the jury’s actual deliberations. See, e.g., Bouey, 762 So.2d at 540 (holding that “if the alternate is present at any time after the deliberations commence, which is the time the jurors begin discussion of the case, then the error is fundamental and mistrial or a new trial is necessary”); Fischer v. State, 429 So.2d 1309, 1311 (Fla. 1st DCA 1983) (reversing for a new trial where it was discovered during the polling of the jury that the alternate juror had participated in the decision); Berry v. State, 298 So.2d 491, 493 (Fla. 4th DCA 1974) (reasoning that “[e]ven though [the alternate juror] did not actually participate in the determination of the verdict, the possibility that she could have affected the jury verdict was apparent. The presence of [the alternate juror] in the jury room could have operated as a restraint upon the jurors and their freedom of expression. The attitudes of [the alternate juror] conveyed by facial expressions, gestures or the like may have had some effect upon the decision of one or more juror.”); but see Jacksonville Racing Ass’n v. Harrison, 530 So.2d 1001, 1005 (Fla. 1st DCA 1988) (holding it was harmless error where the alternate juror was present only during the period when the jury elected the foreperson).

Second, by all accounts, the alternate juror’s notepad was expeditiously removed from the jury room, likely, within a minute or two of the jury’s going back. In the highly analogous case of State v. Purdom, No. A13-0205, 2014 WL 2178626 (Minn. Ct. App. May 27, 2014), the Minnesota Court of Appeals was “unpersuaded” that a juror’s act of taking an alternate juror’s notes into the jury room—for a short period of time—prejudiced the jury. Specifically, in Purdom, after the trial court charged the jury, “it identified the alternate juror and told her that she could leave her notes or give them to one of the jury attendants.” 2014 WL 2178626 at *6. “The court then noted that the alternate juror had ‘handed her notes To her fellow juror sitting next to her before she left’ but that a jury attendant retrieved the notes and that the notes were not in the jury room.” Id. On these facts, the' Court of Appeals held that “even if we were to assume that the presence of the alternate juror’s notes in the jury room was error, we would not presume prejudice.” Id. The court distinguished those decisions holding that the alternate juror’s presence during deliberations was “‘presumptively prejudicial.’” Id. (quoting State v. Crandall, 452 N.W.2d 708, 709 (Minn. Ct. App. 1990)) (emphasis added in Purdom); see also State v. Spears, 184 Ariz. 277, 908 P.2d 1062, 1074 (1996) (after assuming for argument’s sake that the- alternate juror’s notes left in the jury room during deliberations were “extraneous evidence,” the court found that the defendant was not entitled to a new trial because he failed to show actual prejudice). As in Purdom, we are not persuaded that the fleeting presence of the alternate juror’s notepad in the jury room was “presumptively prejudicial.”

Third, stated in a‘slightly different way, the fact that the notepad was removed so quickly causes us to conclude that any error was “harmless.” Harrison, 530 So.2d at 1005. The jury was instructed that it must follow the law as set out in the instructions. Those instructions included an instruction that the “first thing” the jury should do was to select a foreperson. It is well-established that ‘“[ajbsent a finding to the contrary, juries are presumed to follow the instructions given them.’ ” Johnson v. State, 164 So.3d 794, 797 (Fla. 1st DCA 2015) (quoting Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 942 (Fla. 2000)). Thus, assuming—as we must—that the jury’s first point of business was to elect a foreperson, it is irrefutable that the alternate juror’s notepad was in the jury’s presence during its “limited organizational activity,” a fact that stands in sharp contrast to the cases “in which actual deliberation was commenced.” Harrison, 530 So.2d at 1005. Therefore, under Harrison, a harmless error analysis would apply. Accord Bouey, 762 So.2d at 539 (citing Harrison and recognizing that “a distinction should be made between instances where the alternate juror was present while the jury actually deliberated on its verdict and instances where the alternate juror was .present only during the limited organizational activity that the jurors typically engage in before actual deliberations begin,” with the latter instance being subject to “the harmless error doctrine”).

Fourth, we feel obliged to comment on defense counsel’s failure to request any court action after it was disclosed that a primary juror had removed the alternate juror’s notepad. Specifically, counsel did not object to the trial court’s solution of sending the bailiff back to the jury room to retrieve the notepad; did not request the court to conduct an inquiry into whether any of the jurors had read the alternate juror’s notes (assuming the notepad contained any written notes, a fact that is not established in the record); did not request the trial court to give any special instruction to the jurors regarding the presence of the notepad; and, did not request a mistrial. See Harrison, 530 So.2d at 1005 (noting that “the error was never brought to the court’s attention as a basis for mistrial or other relief, but [was] instead first articulated by briefs in this court”); cf. Bouey, 762 So.2d at 538-39 (observing that when the prosecutor advised the court that he had been made aware that the alternate juror had accompanied the six primary jurors to the deliberation room, both attorneys requested an opportunity to establish a record of what had happened with regard to the alternate juror); Fischer, 429 So.2d at 1310 (noting that when it became apparent after polling the jurors that the alternate juror had participated in the deliberations, defense counsel “promptly objected and moved for a mistrial”); Berry, 298 So.2d at 492 (remarking that “[ajfter the jury announced its verdict finding the defendant was guilty of the robbery charged, counsel for the defendant moved for a new trial on the ground that the trial judge committed fundamental error in permitting [the alternate juror] to be in the jury’s presence while the jury was deliberating,” even though, upon inquiry, it was acknowledged she had not participated in the determination of the verdict).

In Hargrove v. CSX Transportation, Inc., 631 So.2d 345 (Fla. 2d DCA 1994), it was discovered during the jury’s deliberations that the bailiff had delivered the trial court’s copy of the jury instructions to the jury room. The court’s copy reflected changes made during the charge conference by way of written notations and lines drawn through sections to be deleted. When it was discovered that the court’s copy of the instructions was in the jury room, the parties agreed that the trial court should retrieve them, and this was promptly accomplished. No objection was raised by either side. Also, there was no request for a curative instruction or a motion for mistrial.

Following a verdict in favor of Har-grove, CSX, for the first time in a motion for new trial, raised the specter of the jury’s having considered the marked-through sections of the court’s instructions. The trial court granted the motion. On appeal, Hargrove argued that the court’s order was erroneous because CSX never objected until after the verdict was rendered and did not argue to the trial court that fundamental error occurred.

In reversing the trial court’s order and concluding that CSX’s objection was untimely and was not preserved for purposes of the motion for new trial, the Second District succinctly stated: “This particular case validates the requirement of a timely objection because remedial options were available when it was discovered that the instructions were in the jury room.” Id. at 346. Similarly, here, defense counsel’s inaction eliminated any opportunity for the trial court to rectify any purported prejudice by eliminating the opportunity to ask the jurors if “any member had even seen” the notepad or to request an appropriate curative instruction, if necessary. Id.

Without question, “the deliberations of the jury [must] be kept free from any influence from strangers to the proceedings who may inappropriately influence the jury or impart information to them that was not filtered through the rules of evidence under judicial supervision during the trial process.” Bouey, 762 So.2d at 539. But, for the reasons discussed above, we find the sanctity of the jury’s deliberations was not disturbed. Yet, even if there were a remote question of a minor irregularity, counsel’s failure to object waived that argument on appeal. Therefore, Appellant has failed to demonstrate any error in this case.

AFFIRMED.

ROWE and KELSEY, JJ., CONCUR.