text:
    James C. McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5305.
    District Court of Appeal of Florida, Second District.
    May 28, 2010.

      James C. McDonald, pro se.
   WHATLEY, Judge.

James C. McDonald seeks review of the postconviction court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the postconviction court’s order on McDonald’s second claim. We reverse and remand for further proceedings on McDonald’s first claim of ineffective assistance of counsel for failure to file a motion to suppress.

In July 2008, McDonald pleaded guilty to one count of possession of cocaine and was sentenced to five years in prison. The record on appeal establishes that on February 20, 2008, law enforcement officers were watching a known narcotics location. Officers observed McDonald arrive at the location and, a short time later, they observed him leave in his vehicle. McDonald was subsequently stopped by the officers. In his motion, McDonald alleges the arresting officer stopped him because the officer “received a call” that McDonald ran a stop sign. He then alleges the officer ordered him to step out of his vehicle and searched his person without consent or reasonable suspicion. The transcript of the plea hearing, attached to the postcon-viction court’s order, reveals the State’s contention that after the officers “made contact with” him, McDonald consented to a search of his person.

McDonald claims his trial counsel was ineffective for failing to file a motion to suppress the cocaine found as a result of the illegal search. The postconviction court summarily denied McDonald’s claim on the basis that the cocaine was found during a valid investigatory stop. This conclusion, however, is not supported by our limited record. Police officers may conduct an investigatory stop if there is a “ ‘reasonable, articulable suspicion that criminal activity is afoot.’ ” Mitchell v. State, 787 So.2d 224, 228 (Fla. 2d DCA 2001) (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). But a person’s “ ‘presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.’ ” State v. Bell, 19 So.3d 374, 376 (Fla. 2d DCA 2009) (quoting Wardlow, 528 U.S. at 124, 120 S.Ct. 673).

McDonald visited a known drug location that was under police observation. Absent additional supporting facts or a finding that McDonald consented to a search, this does not provide a basis for reasonable suspicion and a search. Because the record does not refute McDonald’s claim that the cocaine seized as a result of the stop would have been suppressed, the record likewise does not refute McDonald’s claim that his trial counsel was ineffective for failing to file a motion to suppress.

However, before the postconviction court revisits the merits of the claim on remand, another issue must be addressed. McDonald’s claim is facially insufficient because he fails to allege that had counsel filed a motion to suppress, he would not have pleaded guilty and would have proceeded to trial. The postconviction court should not have reached the merits of McDonald’s claim but instead should have stricken the claim and given McDonald an opportunity to amend it within a reasonable and specific period of time. See Agent v. State, 19 So.3d 1114, 1115 (Fla. 2d DCA 2009).

Accordingly, we affirm the denial of McDonald’s second claim but reverse the denial of his first claim. On remand, the postconviction court must first allow McDonald to amend his motion to allege a facially sufficient claim. If he does so, the postconviction court may either grant an evidentiary hearing on the claim or it may again summarily deny the claim, attaching portions of the records that conclusively refute McDonald’s claim.

Affirmed in part; reversed in part; remanded.

LaROSE and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    Ricky Lee GILBERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-6025.
    District Court of Appeal of Florida, Second District.
    May 28, 2010.

      Ricky Lee Gilbert, pro se.
   KELLY, Judge.

On July 3, 2008, Ricky Lee Gilbert pleaded guilty to unlawful sexual activity with a minor. He was sentenced to two years of community control followed by eight years of sex offender probation. In June 2009, after two violations of community control, Gilbert was sentenced to twelve years in prison followed by three years’ sex offender probation. Gilbert filed a motion for postconviction relief on August 12, 2009, pursuant to Florida Rule of Criminal Procedure 3.850, raising two claims of ineffective assistance of counsel with regard to his initial plea. We reverse the denial of Gilbert’s motion.

In his first claim, Gilbert alleges that his trial counsel was ineffective for, among other things, affirmatively misad-vising him that he could have unsupervised contact with his children, that he could work out of state, and that he would not be placed on a GPS monitor. Upon being notified by his probation officer that he could not have contact with his children, that he could not work out of state, and that he was to be placed on a GPS monitor, Gilbert requested his trial counsel file a motion to withdraw plea. On July 8, 2008, a motion to withdraw plea was filed. It is unclear whether the motion was ever ruled upon. As grounds for the motion, Gilbert’s counsel alleged that the State had no objection to Gilbert working out of state at the time of plea and that GPS monitoring was not a condition of the plea. The plea agreement itself includes the statement that no objection was raised to Gilbert’s having unsupervised contact with his biological children.

In his rule 3.850 motion, Gilbert alleges that had his trial counsel properly advised him of the probation conditions he would not have pleaded guilty and would have gone to trial. His claim is facially sufficient. See Flores-Vega v. State, 22 So.3d 721, 724 (Fla. 2d DCA 2009). In denying Gilbert’s first claim, the postconviction court found that the standard conditions of probation and the GPS monitoring were included in the plea form which Gilbert signed. The court also found that Gilbert’s lack of contact with his children and his not being permitted to work out of state were collateral consequences of the plea and, therefore, counsel was not required to advise Gilbert on these matters. The postconviction court failed to apply the law with regard to affirmative misad-vice of counsel as to collateral consequences of a plea. The motion to withdraw plea and the plea agreement itself lend credibility to Gilbert’s allegations of affirmative misadvice, and if they are taken as true, it is clear counsel provided deficient performance. See Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001) (“Affirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea”).

In the context of a plea, the prejudice prong of the ineffective assistance of counsel test requires a showing that there is a reasonable probability that but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Zakrzewski v. State, 866 So.2d 688, 694 (Fla.2003). In this instance, the motion to withdraw plea establishes that Gilbert was ready to withdraw his plea and go to trial.

In his second claim, Gilbert contends his trial counsel was ineffective for failing to inform him that a Florida Department of Law Enforcement (FDLE) lab report indicated that no semen was found on the cervical or oral swabs of the victim. Gilbert claims that had counsel showed him the report he would not have pleaded guilty and would have proceeded to trial. Nothing in the record on appeal conclusively refutes Gilbert’s claim or suggests that Gilbert, had he known about the FDLE report, would not have proceeded to trial. See Armstrong v. State, 679 So.2d 1282, 1283 (Fla. 1st DCA 1996).

Accordingly, we reverse the denial of Gilbert’s rule 3.850 motion and remand for the postconviction court to either hold an evidentiary hearing or, if it again summarily denies the motion, to attach portions of the record that conclusively refute Gilbert’s claims.

Reversed and remanded with instructions.

WHATLEY and SILBERMAN, JJ, Concur.


author: WALLACE, Judge.

text:
    Norman J. COLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4538.
    District Court of Appeal of Florida, Second District.
    June 2, 2010.

      Norman J. Cole, pro se.
   WALLACE, Judge.

Norman J. Cole appeals the order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse the postconviction court’s summary denial of grounds one, two, three, and seven as facially insufficient. We affirm without comment the postconviction court’s denial of all other claims for relief.

In grounds one and two of his motion, Mr. Cole asserted that his trial counsel provided ineffective assistance because of conflicts of interest. However, Mr. Cole did not allege the existence of an actual conflict or that his interests were compromised. See Clayton v. State, 12 So.3d 1259, 1260 (Fla. 2d DCA 2009) (“To establish an ineffectiveness claim based on a conflict of interest, a defendant must show that there was an actual conflict of interest and that the conflict adversely affected counsel’s performance.”). For this reason, the postconviction court summarily denied these claims as legally insufficient. We agree that the claims were legally insufficient.

In ground three, Mr. Cole complained that his plea was involuntary because it was “unlawfully induced.” In addition, at the conclusion of his motion, Mr. Cole asserted: “I would like to be entitled to effective counsel [and] giving [sic] a chance to go to trial. If I had the appropriate counsel the first time[,] I never would’ve took [sic] a deal. I want to go to trial.” Mr. Cole’s motion alleged sufficient facts about counsel’s deficient performance. The allegations in ground three— when read together with the statement at the conclusion of the motion — are facially sufficient. Cf. Smith v. State, 826 So.2d 322, 323 (Fla. 2d DCA 2002) (finding that the defendant alleged a facially sufficient claim where the defendant alleged that counsel told him that a trial on a charge of possession of a firearm by a convicted felon would automatically result in a consecutive sentence and that he would not have entered the plea but for counsel’s misadvice).

Ground seven alleged that counsel was ineffective because he did not file motions to exclude certain evidence as requested by Mr. Cole. The postconviction court properly denied this claim as facially insufficient because Mr. Cole did not provide sufficient information about the proposed motions to determine whether counsel’s performance was deficient. See Ezell v. State, 648 So.2d 1257, 1258 (Fla. 3d DCA 1995) (holding that the defendant could not show deficient performance if the evidence the defendant claims counsel should have sought to exclude was admissible).

However, in light of the recent opinion in Spera v. State, 971 So.2d 754 (Fla.2007), we reverse the summary denials of grounds one, two, and seven and remand with instructions to strike these grounds with leave to amend within a reasonable time. See Thacker v. State, 990 So.2d 1223, 1223 (Fla. 1st DCA 2008) (following Spera); see also Deck v. State, 985 So.2d 1234, 1238 (Fla. 2d DCA 2008) (“Nothing in the limited record before this court demonstrates that [the postconviction mov-ant] could not allege sufficient facts or prejudice in connection with this claim if given the opportunity to amend his motion.”). We also reverse the summary denial of ground three of the motion and remand for the postconviction court to either attach the relevant portions of the record that conclusively refute ground three or to grant an evidentiary hearing on this ground. In all other respects, we affirm the postconviction court’s order.

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

SILBERMAN, J., Concurs.

KELLY, J., Dissents.


text:
    Earl Richard WEST, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5263.
    District Court of Appeal of Florida, Second District.
    June 2, 2010.

      Earl Richard West, pro se.
   KELLY, Judge.

Earl Richard West challenges the trial court’s denial of his motion to return seized property. Because the postconviction court erred in relying solely on the representations of the attorney for the sheriffs office in denying the motion, we reverse and remand for further proceedings.

West filed a motion in case number CRC06-09903CFANO seeking the return of a 14kt gold chain and a gold panda coin medallion seized as evidence by the sheriffs department upon his arrival at the Pinellas County Jail in June 2005. He alleged that the items are his personal property, they are not the fruit of criminal activity, and they were seized as evidence “concerning unrelated charges in 2005.” He was later charged with grand theft of the items in CFC06-09903CFANO. He claimed that he was never officially notified of the resolution of that case and only recently learned that the case had been nolle prossed in January 2007.

The Pinellas County Sheriffs Office responded that it was not in possession of the property. An associate general counsel explained that the property was seized from West when he was arrested in 2005. In September 2006, the property was transferred to the clerk of court, and West was found guilty of attempted armed robbery and sentenced to forty years in prison. In February 2007, the circuit court granted the State’s motion in case no. CRC05-11404CFANO to return the property to its rightful owner and to substitute a photograph of the property in evidence. The trial court then denied West’s motion, stating that “[t]he Pinellas County Sheriffs Office has responded that it is not in possession of the property in question.”

A facially sufficient motion for return of property must specifically identify the property and allege that it is the mov-ant’s personal property, that it is not the fruit of criminal activity, and that it is not being held as evidence. Justice v. State, 944 So.2d 538, 539 (Fla. 2d DCA 2006). If the allegations are deemed sufficient, the court is obliged to provide an evidentiary hearing to determine whether the property is in the custody of the sheriffs office and should be returned to the movant. Id.

The postconviction court erred in basing its denial of the motion on the factual representations of an attorney for the sheriffs department. See Justice, 944 So.2d at 540 (“ ‘Representations by an attorney for one of the parties regarding the facts ... do not constitute evidence.’ ” (quoting Eight Hundred, Inc. v. Fla. Dep’t of Revenue, 837 So.2d 574, 576 (Fla. 1st DCA 2003))). We therefore reverse and remand for the postconviction court to reconsider the motion.

Reversed and remanded.

WALLACE and LaROSE, JJ., concur.


author: PER CURIAM.

text:
    Raul DELTORO, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4791.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2010.
    Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Raul Deltoro was charged by information with violating section 316.1935(2), Florida Statutes (2008). The information was erroneously captioned with the non-existent crime of “aggravated fleeing (chase).”

The jury was presented with evidence and testimony as to the crime of non-aggravated fleeing and eluding (pursuant to section 316.1935(2)). The jury was likewise instructed on the crime of non-aggravated fleeing and eluding pursuant to the same section and subsection. After finding the defendant guilty as charged, the trial court entered judgment for the aggravated form of the crime.

Although the improper designation of a crime in the caption of a charging document may be rejected as surplusage, a resultant judgment that is patently erroneous must be corrected. See Keesee v. State, 204 So.2d 925, 927 (Fla. 4th DCA 1967).

Accordingly, this matter is remanded to the trial court to enter a corrected judgment, scoresheet and order placing the defendant on probation.

Reversed and remanded with instructions.

CIKLIN, GERBER, JJ„ and COX, JACK S., Associate Judge, concur.


author: SUAREZ, J.

text:
    The STATE of Florida, Appellant, v. Luis Henry FERREY, Appellee.
    No. 3D08-1089.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.

      Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Patrick M. Delaney, Certified Legal Intern, and Armando G. Hernandez, Legal Intern, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

The State of Florida appeals from the trial court’s order granting Luis Ferrey’s motion for new trial. We affirm.

Ferrey was charged with burglary of a dwelling with assault or battery, and attempted sexual battery. Prior to trial, the State announced that it would not be calling the victim’s neighbor, Carlos, as a witness at trial; he was stricken from the witness list and the trial court noted that he would not testify. At trial, the victim testified that she was awakened from her sleep by a noise in her bedroom. A man grabbed her by the throat and attempted to sexually assault her. When she screamed, he ran from the house. The victim made a hesitant identification of Ferrey during trial. In response to the question of whether or not she saw her attacker in the courtroom she pointed hesitantly at Ferrey and testified that she could not make out the details of her attacker’s face during the assault because the room was dark but that Ferrey looked a little different. She went on to say that she was “almost sure” he was the assailant and that his physique resembled that of her assailant. During her direct examination, the victim identified “Carlos” as her next-door neighbor and referred to him several times. Following these references to Carlos, a non-testifying witness, the victim recounted the facts of her assault.

Detective Quinones next testified that as part of his investigation, he obtained information from the victim’s neighbor, Carlos. The trial court sustained several objections from the defense for repeated mention of Carlos, the absent witness, and the hearsay containing Carlos’s statements inferring that Carlos actually had observed the suspect. The trial court at one point instructed the prosecutor not to mention Carlos or elicit any testimony referring to Carlos and warned that she would grant a mistrial if the State continued to suggest that there was additional evidence of guilt that the jury would not hear. After close of the defense case, the jury asked whether they could use the reference to Carlos made by another witness; the court answered that the statement had been stricken and they could not use it in their deliberations. The jury found Ferrey guilty on all counts. The defense subsequently filed a motion for new trial, citing the independent and cumulative effects of the references to Carlos and his out-of-court statements. The State argued that the error was harmless, was properly cured, and bad no effect on the jury’s verdict. The trial court found otherwise and granted the defendant’s motion for new trial.

The State argues that Hernandez v. State, 547 So.2d 138 (Fla. 3d DCA 1988), should control the outcome of this case. In Hernandez, the investigating detective was allowed to testify that as a result of interviews with various witnesses he began looking for the defendant. Id. The non-testifying witnesses referred to in the detective’s hearsay testimony were not eyewitnesses to the crime charged and it was not clear from the record what incriminating information they gave to him, leading to the defendant’s arrest. Id.

We find, however, that the facts presented in Ferrey’s case are more closely allied with those of Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981) and its progeny. In Postell, the prosecutor elicited, through the testimony of a police officer, the out-of-court declarations of an unidentified eyewitness to the armed robbery with which Postell was charged. In that case, the Third District held that, “where, as in the present case, the inescapable inference from the testimony is that a non-testifying witness has furnished the police with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated.” Id. at 854.

In the case before us, Detective Quinones testified that the victim told him that there were witnesses that actually observed the possible suspect, and that after interviewing the victim he responded to the victim’s neighbor, Carlos, who was a witness, and asked him what he had seen. The prosecutor several times, over defense objection, stated, “based on your conversation with Carlos ...” Both the State and the detective continued to refer to Carlos as “the witness,” although Carlos was not called to testify at trial and had been stricken from the witness list.

The trial court correctly granted the defendant a new trial. With Carlos’s identity as the victim’s neighbor firmly in the jury’s mind from the victim’s direct testimony, the State engaged in a series of attempts to introduce Carlos’s out-of-court statements through the detective’s testimony. The State improperly elicited inferential hearsay multiple times during the detective’s examination, which gave the jury the distinct impression that someone else identified Ferrey other than the victim. Following the analysis in Postell, the logical inference that followed this challenged inadmissible hearsay was that Carlos, a non-testifying witness, gave the detective accusatory information which ultimately led to Ferrey’s photo being placed in the lineup, and his subsequent arrest. This violated Ferrey’s right to confront witnesses against him and prejudiced his right to a fair trial. We find that the error was pervasive, not harmless in light of the jury’s questions about this evidence, and the trial court did not abuse its discretion by granting the motion for new trial.

Affirmed.

      . The prosecutor's direct examination proceeded as follows:
      Q. [by PROSECUTOR]: What did you do after [M.O.] told you what happened to her that day?
      A. [by DETECTIVE QUINONES]: Well, she had also mentioned that there were witnesses that actually observed the possible suspect—
      [DEFENSE]: Objection to hearsay.
      THE COURT: Sustained.
      Q. [by PROSECUTOR]: Without getting into details of what she said, what did you do after she gave you her account of what happened?
      A. [by DETECTIVE QUINONES]: After she gave me her statement, I responded to a neighbor, her neighbor, which is the witness, and I asked him what he had seen at the time.
      Q. [by PROSECUTOR]: Do you remember his name?

        A. [by DETECTIVE QUINONES]: First name of Carlos. I can't remember, recall the last name right now.
      Q. [by PROSECUTOR]: Do you remember what day it was when you spoke to Carlos?
      A. [by DETECTIVE QUINONES]: It was July 16. That same evening.
      Q. [by PROSECUTOR]: And based on your conversation with Carlos, what—
      DEFENSE: Objection.
      Q. [by PROSECUTOR]: Based on your conversation with Carlos, what did you do?
      THE COURT: Sustained.
      Q. [by PROSECUTOR]: Were you able to speak to Carlos?
      A. [by DETECTIVE QUINONES]: Yes.
      At this point, the judge called a sidebar and instructed the State not to mention Carlos again. The judge warned a mistrial would be granted if the Stale continued to suggest that there was additional evidence of guilt that the jury would hear. Following the sidebar, the State continued its direct examination.
      Q. [by PROSECUTOR]: What did you do next?
      A. [by DETECTIVE QUINONES]: I knocked on the witness' door and asked him what had happened and what he had seen, and if he could provide me with a written statement.
      [DEFENSE]: Objection.
      THE COURT: Sustained.
      Q. [by PROSECUTOR]: What did you do next?
      THE COURT: Why don't you ask him more specific questions?
      Q. [by PROSECUTOR]: Did there come a time when you came into contact with someone who later became known to you as Luis Ferrey?
      A. [by DETECTIVE QUINONES]: Yes. The witness Carlos—
      [DEFENSE]: Objection.
      THE COURT: Sustained.
      Even after the court’s warnings, Detective Quinones made two more statements referencing Carlos to which the court sustained the defense's objections.
      Q. [by PROSECUTOR]: Detective, did there come a time when you came into contact with someone who later became known to you as Luis Ferrey?
      A. [by DETECTIVE QUINONES]: Yes, there was. I went to Southwest 7th Street to some apartments that I was told he might be in.
      [DEFENSE]: Objection. Hearsay.
      THE COURT: Sustained.
      DETECTIVE QUINONES: Someone by the name of Luis might—
      [DEFENSE]: Objection. Move to strike.
      THE COURT: Sustained.
      At the conclusion of the State's case, the defense called Ms. Salazar. During the prosecutor’s cross-examination of Ms. Salazar, she testified that she heard the victim scream the night of the incident and then walked outside the front door. Subsequently, the prosecutor proceeded with a line of questioning alluding to Carlos, the non-testifying witness, as the "man standing outside” on the night of the incident.


author: SALTER, J.

text:
    J.P., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1619.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.

      Carlos J. Martinez, Public Defender, and Melissa C. Del Yalle, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before COPE, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

J.P., a juvenile, appeals from an order finding that he committed grand theft of property valued at $800 or more, withholding adjudication of delinquency, and placing him on probation. We affirm.

Facts

On May 27, 2008, the principal of Miami Jackson Senior High School was taking inventory of the total number of projectors in the school when she discovered that a number of projectors were missing. The projectors had been ordered by the principal and purchased by Miami-Dade County Public Schools in late 2007, and were installed in March 2008. J.P. was charged with grand theft after admitting to stealing at least two of the missing projectors.

An adjudicatory hearing was held on March 25, 2009, at which the principal testified that each projector had a value of approximately $800. At the conclusion of the State’s ease, defense moved for a judgment of dismissal, arguing that the State had failed to establish the fair market and value of the projectors at the time of the offense. The motion was denied, and J.P. was found to have committed grand theft of property valued at $1600. Adjudication of delinquency was withheld, and J.P. was placed on probation. This appeal followed.

Analysis

The only issue on appeal is whether the principal’s testimony sufficiently established that the value of the two projectors at the time of the theft was $300 or more ($150 or more per projector). We believe it did. Having ordered the projectors, and also being responsible for the purchasing and maintaining of all the school’s equipment and materials, the principal was competent to testify as to the projectors’ value. Her testimony revealed that each projector’s purchase price was approximately $800, that the projectors were brand new when installed in March 2008, that the crime occurred only two months later in May 2008, and that it would cost another $800 to replace each stolen projector.

Appellant’s reliance on Bloodsaw v. State, 994 So.2d 378 (Fla. 3d DCA 2008) is misguided. In Bloodsaw, we reversed a conviction for grand theft where the State never asked an electrician for his opinion of the value of his tools on the date they were stolen, despite having asked about the cost, manner of use, and condition. Id. at 380. Here, in contrast, in addition to testifying as to the purchase price, condition, and replacement cost of the projectors, when asked by the State the principal also testified that each projector was worth approximately $800 when they were stolen. Based on the principal’s testimony, we find that the State established the fair market value of the property to be $800 or more at the time of the theft.

Affirmed.

      . § 812.014(2)(c), Fla. Stat. (2008).


author: SHEPHERD, J.

text:
    LEVINSON & LICHTMAN, LLP, Appellant, v. Gary A. LEVINSON, etc., et al., Appellees.
    No. 3D09-1814.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Coffey Burlington and Paul J. Sehwiep, Miami, for appellant.
    John C. Sosa, Miami, for appellees.
    Before SHEPHERD, CORTIÑAS, and SALTER, JJ.
   SHEPHERD, J.

Levinson & Lichtman, LLP, appeals an order granting Appellees Sharon Cook, Michael Kander, Susan Kander and Paul Kander’s motion to dismiss under Florida Rule of Civil Procedure 1.061. We conclude the trial court abused its discretion in granting the motion for two reasons: (1) despite reasonable efforts and supporting court orders, Levinson & Lichtman was improperly, and perhaps intentionally, thwarted in obtaining an oral deposition of defense witness, Sharon Cook, and written discovery from other defendants, which had been compelled by the trial court; and (2) because neither the order granting the motion nor the hearing transcript on the motion demonstrates the trial court performed a Kinney analysis. See Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So.2d 86, 90 (Fla.1996); see also Wood v. Bluestone, 9 So.3d 671, 673 (Fla. 4th DCA 2009) (“If the record is sufficient to review the trial court’s ultimate determination, the scarcity of the text of the order will not matter. Nonetheless, the court must still engage in the Kinney analysis, either at the hearing or in its written order of denial.”) (internal citations omitted); Strauss v. Allstate Ins. Co., 855 So.2d 167, 169 (Fla. 4th DCA 2003) (reversing and remanding for a determination of the Kinney factors when the record does not demonstrate the trial court conducted the requisite analysis of the four factors before dismissing appellant’s action); Carenza v. Sun Int’l Hotels, Ltd., 699 So.2d 830, 831 (Fla. 4th DCA 1997) (“Neither the trial court’s order granting defendants’ motion nor its pronouncements during the hearing on the motion provide this Court with enough information to determine whether the trial judge adequately considered each step of the Kinney test in reaching his conclusion.”).

Reversed and remanded.

      . We decline to address the merits of the motion to dismiss for forum non conveniens, finding the trial court should reconsider the motion after discovery is completed.


author: ROTHENBERG, J. SCHWARTZ, Senior Judge,

text:
    Roberto Paz RIVERO, Appellant, v. STATE of Florida, Appellee.
    No. 3D08-2572.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.

      Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

We affirm Roberto Paz Rivero’s convictions for burglary of an unoccupied structure, petit theft, and felony criminal mischief based on our findings that: the DNA evidence and related testimony were sufficient to support the finding that the defendant committed the burglary; and the trial court did not abuse its discretion in limiting defense counsel’s voir dire, or commit manifest error by failing to strike a juror for cause.

THE CIRCUMSTANTIAL DNA EVIDENCE

The defendant asserts that the circumstantial DNA evidence found at the crime scene was insufficient to rebut his reasonable hypothesis of innocence. The defendant correctly notes that circumstantial evidence, such as DNA evidence and fingerprints, “may support a conviction only if it is consistent with guilt and inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989).

We also agree with the defendant that where the State relies on circumstantial evidence found at a crime scene to establish the defendant’s identity, the circumstances must be such that the evidence could have been left only at the time the crime was committed. Tirko v. State, 138 So.2d 388, 389 (Fla. 3d DCA 1962). However, where fingerprints or other evidence is found in an area generally not open to the public, we have upheld convictions in circumstantial evidence cases. For example, this Court found in Rosario v. State, 406 So.2d 106 (Fla. 3d DCA 1981), a circumstantial evidence case, that the defendant’s fingerprints, which were found on liquor bottles located behind the bar of a burglarized restaurant, in an area where the public had no access, were sufficient to support the finding that he had committed the burglary. Similarly, this Court affirmed the conviction of a defendant whose fingerprint was found “in an obscure, private part” of a burglarized dental office where the dentist testified that he had never before seen the defendant and had no records of having treated him as a patient. Summerson v. State, 200 So.2d 594, 595 (Fla. 3d DCA 1967).

The defendant’s appellate counsel contends that the trial court should have granted the trial court’s motion for judgment of acquittal because the State did not prove that the DNA evidence (blood) linking him to the burglary was collected from an area that was inaccessible to the public. The defendant’s appellate counsel argues that although the defendant’s DNA was collected from glass from a window broken to gain entry to the bakery, there was no evidence that the defendant’s DNA was collected from the inside of the window. Because the outside of the window was accessible to the public, appellate counsel claims the circumstantial evidence was insufficient to establish his guilt. In support of this argument, appellate counsel cites to clearly established law that holds that where the State’s case is based solely on circumstantial evidence, and the circumstantial evidence is a fingerprint found on the outside of a window of a vehicle or a building and on items within a business in an area open to the public, the evidence is insufficient to establish the defendant’s guilt as a matter of law. See, e.g., C.E. v. State, 665 So.2d 1097 (Fla. 4th DCA 1996) (reversing a defendant’s conviction because it was undisputed that his fingerprints were found on the exterior of a burglarized vehicle and such circumstantial evidence was not inconsistent with his reasonable hypothesis of innocence).

The cases the defendant’s appellate counsel relies on are inapplicable and her arguments are without merit because in this case, contrary to the representations made in the appellate brief, the record reflects that the DNA (blood evidence) linked to the defendant in this case was collected from the inside of a window at the burglarized bakery, the point of entry of the burglary, in an area of the bakery admittedly not accessible to the public.

Various witnesses testified at the defendant’s trial that they observed blood on the inside of a window that was smashed during the burglary, and otherwise established that the DNA collected at the scene and which was linked to the defendant was collected from the inside of the window. The owner of the bakery testified that he observed blood and small hairs on the broken glass, and that he boarded up the outside of the window with plywood. The plywood was still in place when the crime scene investigator arrived to collect the DNA evidence. The owner also testified that he had never before seen the defendant.

The owner’s son-in-law, who arrived very early in the morning following the burglary, testified that although the window of the bakery had been shattered, much of the glass was still affixed to the frame. He testified that he observed what appeared to be blood on a piece of glass still affixed to the window, on the inside of the window. He stated that the plywood remained in place on the outside of the window from the morning after the burglary through the time the investigator swabbed the window, and he watched the investigator swab the inside of the window to collect the DNA sample.

The responding police officer testified that he examined the window from the inside of the oven room and saw blood on the inside of the window. He further stated that he observed blood on the floor of the bakery. Finally, the crime scene investigator testified that, from the inside of the bakery, he swabbed several pieces of broken glass from the windowsill and floor that appeared to be stained with blood.

Thus, contrary to the arguments made by the defendant’s appellate counsel in the initial brief and at oral argument, there is record evidence that the defendant’s DNA was found and collected from the inside of the window of the bakery, which was smashed during the burglary, in a room not accessible to the public. Thus, based on the totality of this evidence, we conclude that the State presented sufficient evidence to rebut the defendant’s reasonable hypothesis of innocence.

JURY SELECTION

The defendant contends that the trial court abused its discretion in limiting his voir dire of the jury. We disagree. While it is entirely proper for a lawyer to ask questions that test whether a juror can properly accept physical and testimonial evidence, and a lawyer may inquire into juror bias concerning the defendant’s defense, a lawyer is not permitted to pretry his or her case. Jackson v. State, 881 So.2d 711, 714 (Fla. 3d DCA 2004).

The defendant also alleges that the trial court committed manifest error in refusing to strike a juror, Mr. Romero, for cause. We note that two very different “Original” transcripts of the voir dire and jury selection proceedings were submitted to this Court. The first “Original” was filed with this Court on April 20, 2009. The second “Original” was filed by the defendant as a “supplemental record” on September 17, 2009. Both contain certifications from the same court reporter certifying that the transcript is “a true and complete record” of the stenographer’s notes of the proceedings, and both certifications are dated March 30, 2009. These two certified “Original” transcripts of the same proceedings are remarkably different.

The discrepancy relevant to this appeal is that the first “Original” transcript reflects that defense counsel exercised a peremptory challenge to Mr. Romero, which the trial court denied, noting that defense counsel had already exhausted his six peremptory challenges. The second “Original” transcript states that after defense counsel’s peremptory challenge to Mr. Romero was denied, defense counsel moved that he be excused for cause, which was also denied.

Although it has not yet been determined which transcript accurately reflects the proceedings below, we conclude that even if the second “Original” transcript is correct, which states that defense counsel raised a cause challenge after his peremptory challenge was denied, it does not support the grounds raised by defense counsel in moving that Mr. Romero be stricken for cause. The grounds raised were that Mr. Romero: (1) “was one of the ones who raised his hand if he would need the defense to prove something,” and (2) had been the victim of a home burglary. Being the victim of a burglary, without more, is not grounds for a cause challenge, and there is no record evidence that Mr. Romero raised his hand in response to defense counsel’s question. The question posed by defense counsel was as follows:

Now the defense in this case is that Mr. Paz Rivero is innocent. DNA match has nothing to do with him committing any burglary or grand theft charges committed [sic]. Now when you hear that in hearing that [sic] do you need for me to — from the defense do you need to hear proof of how this DNA evidence got there? Who does? [J]uror 10, Ms. Forster, Ms. Gonzalez. Keep your hands up please.

The record reflects that the State objected to this question, the trial court sustained the objection, a side-bar conference was conducted, and then the trial court explained to the jury that it was the State’s burden of proof, the burden never shifted to the defense, and if the State did not prove beyond a reasonable doubt that a crime was committed and the defendant committed the crime, they must find the defendant not guilty. The trial court then asked the jurors to raise their hand if they were going to want or need for the defendant to do anything — call witnesses or present any evidence — and explained that it was important that they be truthful and raise their hand. After this explanation, Mr. Fletcher raised his hand to tell the judge that when the question was originally asked, he raised his hand because it was only natural to want to know how the DNA got there, but after the court’s explanation, it made more sense. He further stated that the defense did not have to do anything, the defendant was innocent until proven guilty, that is the way the system works, and after hearing the court’s explanation, he would put aside his natural inclination to want an explanation.

The only juror who indicated that she could not follow the trial court’s instructions was Ms. Forster, who stated: “It’s not going to change my mind if I feel one way [sic] he doesn’t explain [sic] it’s not going to change my mind.”

There is no record evidence that Mr. Romero was one of the jurors who initially responded to defense counsel’s question and he clearly did not raise his hand after the trial court’s explanation and instruction to the jurors to raise their hand if after hearing the court’s explanation they would want or need the defense to submit any evidence or prove anything.

The law regarding cause challenges is clear. “It is within a trial court’s province to determine whether a challenge for cause is proper and the trial court’s determination of juror competency will not be overturned absent manifest error.” Fernandez v. State, 730 So.2d 277, 281 (Fla.1999); Van Poyck v. Singletary, 715 So.2d 930, 931 (Fla.1998). The trial court’s unique vantage point in determining juror competency and a challenge for cause is also established law. Morrison v. State, 818 So.2d 432, 442 (Fla.2002); Mendoza v. State, 700 So.2d 670, 675 (Fla.1997); Leon v. State, 396 So.2d 203, 205 (Fla. 3d DCA 1981). Additionally, a juror’s nonverbal behavior, which was not observed by the trial court, or otherwise supported by the transcript, cannot be the proper basis to support a challenge to a juror. See Dorsey v. State, 868 So.2d 1192, 1197, 1202 (Fla.2003). Thus, even if defense counsel raised a cause challenge to Mr. Romero, we find no manifest error in the denial of the challenge.

Affirmed.

SCHWARTZ, Senior Judge,

specially concurring in part.

I heartily agree with affirmance. Indeed, I doubt that this wretched appeal, from which Mr. Anders himself would recoil with disgust, should be dignified by anything more than a PCA. However, since an opinion has been written, and while it is obvious that the defendant’s motion for directed verdict was properly denied, I think the Court’s reliance on the cases which involve the location of the defendant’s fingerprints which (although only in legal theory) could have been innocently left on the outside of the site of a break-in is misplaced. In contrast, Rivero was identified by blood which was obviously the result of a cut on the broken window through which he entered the premises. Since that is the case, it doesn’t matter whether it was found on the outside or inside of the pieces of shattered glass.


text:
    Luis Felipe GOYTIZOLO, Appellant, v. Antuanete GOYTIZOLO, Appellee.
    Nos. 4D09-5191, 4D09-5358.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Holly Davidson Schuttler and Christopher A. Tiso of Schuttler & Greenberg, LLC, Boca Raton, for appellant.
    Carla Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

In this consolidated appeal, we deny the petition for a writ of prohibition and, finding no reversible error, affirm the non-final order on appeal.

POLEN, GERBER and LEVINE, JJ., concur.


text:
    J. Maurice HERMAN, a/k/a Maurice Herman, Petitioner, v. J.P. MORGAN SECURITIES, INC. and JPMorgan Chase Bank, N.A., Respondents.
    No. 4D10-735.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Seth P. Robert and Connis 0. Brown, III, of Brown Robert, L.L.P., Fort Laud-erdale, for petitioner.
    Andrew L. Hoffman, Matthew Triggs and Jonathan Galler of Proskauer Rose, L.L.P., Boca Raton, for respondents.
   PER CURIAM.

Petitioner J. Maurice Herman, a/k/a Maurice Herman seeks certiorari review of a trial court order denying his motion to compel production of documents and response to interrogatories. The order constituted a blanket denial of discovery requests. Petitioner has argued that this left him unable to defend respondents’ declaratory judgment action and unable to prosecute his counterclaim. In these circumstances, we find a departure from the essential requirements of law resulting in material harm of an irreparable nature. See Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So.3d 1232 (Fla. 2d DCA 2009); Power Plant Entm’t, LLC v. Trump Hotels & Casino Resorts Dev. Co., 958 So.2d 565 (Fla. 4th DCA 2007).

Respondents advise that the trial court has subsequently entered a partial summary judgment on the declaratory judgment action, and allege that they have agreed to provide, or have provided, some of the requested discovery already. The latter assertion is disputed by petitioner. The former does not necessarily demonstrate that petitioner’s discovery requests and issues are now moot. Accordingly, we quash the trial court’s order denying all discovery and remand with directions to the trial court to consider these assertions in entertaining petitioner’s requests for discovery, item by item. Compare Hitchcock v. Proudfoot Consulting Co., 19 So.3d 1183 (Fla. 4th DCA 2009).

STEVENSON, MAY and CIKLIN, JJ., concur.


author: GERBER, J.

text:
    Stelian LAZURAN, Appellant, v. CITIMORTGAGE, INC., David Stern, P.A., unknown Spouse of Stelian Lazuran, if any, Adriana Ancuta Lazuran a/k/a Adriana Lazuran, unknown Spouse of Adriana Ancuta Lazuran a/k/a Adriana Lazuran, if any, any and all unknown parties claiming by, through, under, and against the herein named individual defendant(s) who are not known to be dead or alive, whether said unknown parties may claim an interest as Spouses, heirs, devisees, grantees or other claimants, The Boulevard Forest Lake Management Association, Inc., Citibank, N.A. successor by merger to Citibank, Federal Savings Bank, John Doe, and Jane Doe as unknown tenants in possession, Appellees.
    No. 4D09-1340.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Mitchell Sens of Law Office of Mitchell Sens, P.A., Plantation, for appellant.
    Jennifer E. Seipel of Butler & Hosch, P.A., Orlando, for appellee Citimortgage Inc.
    No appearance for other appellees.
   GERBER, J.

We reverse the circuit court’s final summary judgment of foreclosure against Ste-lian Lazuran (the “defendant”). Citimort-gage’s complaint alleged that all conditions precedent to the mortgage note’s acceleration had been fulfilled, and Citimortgage’s affidavit in support of its motion for summary judgment stated “[t]hat each and every allegation in the Complaint is true.” Such a conclusory allegation is insufficient to refute the defendant’s affirmative defense that Citimortgage failed to provide him with notice of the acceleration pursuant to the procedures specified in paragraph 22 of the mortgage. Therefore, reversal is required. See Frost v. Regions Bank, 15 So.3d 905, 906-07 (Fla. 4th DCA 2009) (“Because the bank did not meet its burden to refute the Frosts’ lack of notice and opportunity to cure defense, the bank is not entitled to final final summary judgment of foreclosure.”).

Reversed.

POLEN and LEVINE, JJ., concur.


text:
    M.J. FARMS, LTD. v. EXXON MOBIL CORPORATION, Tensas Delta Land Company, Missiana, LLC, Benedict Corporation, LW., Wickes Agent Corporation, JMR Oil Company, Inc. and Wagner Oil Company.
    No. 2009-CC-2414.
    Supreme Court of Louisiana.
    March 12, 2010.
    Rehearing Denied May 7, 2010.

    Blanchard, Walker, O’Quin & Roberts, Paul M. Adkins, Shreveport, Liskow & Lewis, PLC, Donald R. Abaunza, Robert Beattie McNeal, James E. Lapeze, Joseph Ignatius Giarrusso, III, Russell Keith Jarrett, James Aleee Brown, New Orleans, Dane S. Ciolinio, and Ottinger Hebert, LLC, J. Bradley Duhe, Mark D. Sikes, Paul Joseph Hebert, Lafayette, for Applicant.
    James D. Caldwell, Attorney General, Megan Kathleen Terrell, Ryan Michael Sediemann, Asst. Attys. Gen., Davidson, Meaux, Sonnier & McElligott, LLP, James J. Davidson, III, Christopher Joseph Pia-secki, Lafayette, Gugielmo, Lopez, Tuttle, Hunter & Jarrell, LLP, James T. Gugliel-mo, Opelousas, Krebs, Farley & Pelleteri, LLC, Matthew Joseph Farley, New Orleans, Mangham Associates, LLC, Michael R. Mangham, Lafayette, Smith, Taliaferro, Purvis & Boothe, Virgil Russell Purvis, Jr., Jonesville, Veron, Bice, Palermo & Wilson, John Michael Veron, Lake Charles, Wall, Bullington & Cook, Jonathan Robert Cook, Guy Earl Wall, Paul Edward Bullington, New Orleans, Stanley, Reuter, Ross, Thornton & Alford, LLC, Richard Charles Stanely, New Orleans, for Respondent.

       Weimer, J., would grant rehearing.

   ORDER

Pursuant to the administrative power vested in this Court by Article 5(A) of the Louisiana Constitution, and having received information that Judge Kathy Johnson, who was assigned this case and presided over it until medical leave became necessary, has now recovered and is once again presiding over matters in the Seventh Judicial District Court, it is hereby ordered that this Court’s order of the twelfth day of October, 2009, appointing Judge Leo Boothe as Judge ad hoc in this matter is withdrawn, and the case is hereby reassigned to Judge Kathy Johnson.

The writ application previously granted by this Court is dismissed as moot.

FOR THE COURT:

/s/ Jeffrey P. Victory JUSTICE, SUPREME COURT OF LOUISIANA

WEIMER, J., dissents and assigns reasons.

KIMBALL, C.J., did not participate in the deliberation of this decision.

WEIMER, J.,

dissents.

|TI respectfully dissent. I would address the difficult and challenging issues regarding recusal presented by this matter.