source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tamond COLE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3623
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 26, 2019
    Tamond Cole, Quincy, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the denial of Appellant's motion to correct illegal sentence, filed under Florida Rule of Criminal Procedure 3.800(a), without prejudice to his ability to file a timely and sworn motion for postconviction relief under Rule 3.850, if he can do so in good faith. See Lewis v. State, 926 So.2d 437, 438-39 (Fla. 1st DCA 2006).

AFFIRMED.

BERGER, WALLIS and EISNAUGLE, JJ., concur.


text:
    Donte Lamar ROGERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2751
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 26, 2019
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Donte Rogers appeals the judgments and sentences imposed upon him after the trial court found he violated his probation in case numbers 04-CF-010445 and 04-CF-013416. We affirm but remand solely for entry of a proper order revoking probation. See Mitchell v. State, 263 So.3d 252, 252 (Fla. 5th DCA 2019) (remanding for entry of proper written order revoking probation); see also Green v. State, 23 So.3d 820, 821 (Fla. 4th DCA 2009) (remanding for entry of written order revoking probation where record clearly showed trial court had revoked appellant's probation); Dolinger v. State, 779 So.2d 419, 421 (Fla. 2d DCA 2000) (determining trial court erred by failing to enter written revocation order and remanding for entry of said order).

AFFIRMED; REMANDED for entry of revocation order.

EISNAUGLE, HARRIS and GROSSHANS, JJ., concur.


author: HARRIS, J.

text:
    Derrick Desean WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-871
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 26, 2019
    Derrick Desean Williams, Miami, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, J.

Derrick Williams appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, challenging four of his sixteen summarily denied claims. We affirm, without comment, the postconviction court's denial of counts one and six, but reverse the denial as to counts two and three and remand for the court to either attach additional portions of the record refuting Williams's allegations or hold an evidentiary hearing on these claims.

After a jury trial, Williams was convicted of first-degree murder with a firearm and sentenced to life imprisonment. This Court per curiam affirmed his conviction and sentence. Williams v. State, 109 So. 3d 1173, 2013 WL 646054 (Fla. 5th DCA 2013). Williams subsequently filed a rule 3.850 motion.

In ground two of his rule 3.850 motion, Williams alleged that his trial counsel failed to advise him that he had an absolute right to testify on his own behalf and instead, told him that it was not in his best interest to do so. Williams argued that it was necessary for him to testify to assert the "independent act defense," alleging that he would have told the jury he believed that he and co-defendant were going to confront the victim and "fist fight him if necessary," and that he had no idea that the co-defendant had a gun or that he intended "to do anything more than fight."

As the postconviction court noted, the independent act defense applies to situations in which, after participating in a common plan or design to commit a crime, a co-defendants embarks on acts not contemplated by the other defendants or participants in the crime and commits additional criminal acts beyond the scope of the original collaboration. See Williams v. State, 34 So.3d 768 (Fla. 2d DCA 2010) ; Barfield v. State, 762 So.2d 564, 566 (Fla. 5th DCA 2000). The postconviction court found that Williams told the investigating detective that he had never been to the location where the murder occurred and that he did not know the victim. This assertion, the court concluded, was far different from the testimony needed to support an independent act instruction, which would have required Williams to testify that he was present at the scene and would thus have resulted in Williams being impeached. Based on this conclusion, the court found that there was no reasonable probability that Williams's testimony would have led to a viable independent act defense and denied relief on ground two. Williams argues that if he were to testify, he could have explained his reason for being dishonest with law enforcement.

The first step in determining whether there was ineffective assistance of counsel where defendant claims he would have testified is to determine whether the defendant voluntarily agreed with counsel not to take the stand. [ Lott v. State, 931 So.2d 807, 819 (Fla. 2006) ]. If that is established, then the trial court must answer the separate and second question which is whether counsel's advice to defendant "even if voluntarily followed, was nevertheless deficient because no reasonable attorney would have discouraged [defendant] from testifying." Id.

Simon v. State, 47 So.3d 883, 885 (Fla. 3d DCA 2010). Here, Williams voluntarily agreed with counsel's recommendation not to take the stand and it is clear from the record that Williams understood he had the choice to remain silent or testify.

The separate question we must consider is whether counsel's advice to Williams, even if voluntarily followed, was nevertheless deficient because no reasonable attorney would have discouraged Williams from testifying. The trial court only cites one example of why it would be reasonable for counsel to discourage Williams from testifying-that he would have been impeached. The court nonetheless agreed that Williams's testimony would have established that he and co-defendant intended to fight the victim but that co-defendant pulled out a rifle and shot the victim-the exact scenario needed to support an independent act defense instruction. The State's version of the facts was that Williams and his co-defendant were fighting with the victim when co-defendant reached for a gun underneath the front seat of his car. Therefore, it appears that Williams's testimony would have supported the request for the jury instruction. "Counsel may be ineffective in advising defendant not to testify at trial, where the defendant's proposed testimony would have been the only evidence establishing a legally-recognized defense to the charges." Tafolla v. State, 162 So.3d 1073, 1073 (Fla. 4th DCA 2015) (holding defendant's allegation that counsel misadvised him about need for his trial testimony, in prosecution for driving under the influence, to support his defense theory that he was not the driver of vehicle involved in traffic collision was sufficient to state a prima facie claim for ineffective assistance of counsel).

Like in Tafolla, Williams was the only witness that could testify as to his intent to fight and whether it was reasonably foreseeable that the co-defendant would shoot and kill the victim. Similar to Tafolla, there were no witnesses who actually saw who shot the victim, and Williams would have denied shooting the victim. Williams argues that he would have explained why he lied to law enforcement and ultimately, it was up to the jury to weigh the credibility of his testimony. Thus, accepting Williams's factual allegations as true, the record provided does not conclusively refute that counsel's failure to advise Williams of his absolute right to testify would not have resulted in a different outcome. See Hill v. State, 226 So.3d 1085, 1086 (Fla. 1st DCA 2017) (holding that appellant raised a facially sufficient claim that, absent his testimony, there was no chance for his defense to succeed, and there was a reasonable probability that but for counsel's error, the results of the proceeding would have been different).

In ground three of his rule 3.850 motion, Williams raised a related argument that his trial counsel failed to put on a defense or present any evidence to support his request for the independent act jury instruction. The postconviction court similarly held that this claim lacked merit for the same reasons provided in the ruling on ground two.

On appeal, Williams concedes that his trial counsel argued in closing argument that Williams only intended to confront the victim and was not aware that co-defendant had a rifle. However, Williams asserts that had his counsel not misadvised him of his right to testify, his testimony, in conjunction with his counsel's argument, would have required the court to give the independent act jury instruction.

Williams reasons that his testimony was necessary for an independent act jury instruction, and that his trial counsel was aware of what Williams's testimony would have been. Although Williams's trial counsel requested and argued for the independent act jury instruction, the court determined that there was no evidence of a common plan between Williams and the co-defendant and refused to give the instruction. Williams's trial counsel advised Williams not to testify when Williams's testimony would have been the only testimony to support an independent act jury instruction. Thus, counsel failed to put forth adequate evidence to support the independent act jury instruction. Williams raised a facially sufficient claim that, absent his testimony, there was no chance for his defense to succeed, and there was a reasonable probability that but for counsel's error, the results of the proceeding would have been different. See Hill, 226 So.3d at 1086. The records attached by the postconviction court do not conclusively refute Williams's claim.

For the foregoing reasons, we affirm the denial of counts one and six of Williams's postconviction motion but reverse the denial of counts two and three. On remand, the court may either attach additional portions of the record, if any, refuting Williams's allegations or hold an evidentiary hearing on these claims.

BERGER and LAMBERT, JJ., concur.


author: BLACK, Judge.

text:
    Veronica ELDER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D13-3440 2D17-551
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Veronica Elder challenges the trial court's "reinstated" judgment and sentence which was rendered on remand from this court's reversal of the judgment and sentence wherein we held that Elder's plea-the basis for the judgment and sentence-was invalid. See Elder v. State, 198 So.3d 827, 827-28 (Fla. 2d DCA 2016). We treat this appeal as a motion to enforce the mandate in Elder's previous case, Case No. 2D13-3440, and grant it. As a result, we dismiss the appeal in Case No. 2D17-551.

I. Background

In October 2011, Elder was charged with attempted murder of a law enforcement officer, obstruction of an officer with violence, fleeing and attempting to elude, providing a false name to a law enforcement officer, and driving with a suspended or revoked license. A competency evaluation was ordered in December 2011, and the trial court found Elder incompetent to proceed in January 2012.

In May 2012, the court entered an order for a competency evaluation; the court appointed Dr. Alberts and Dr. Blitch to evaluate Elder. Both doctors' reports indicated that as of May 2012, Elder was competent. In July 2012, at what appears to have been a status hearing, defense counsel advised the court that Elder "was seen for a competency evaluation. Reports have come back that she is competent to proceed. We are at this time stipulating to competency." The court made no independent determination regarding Elder's competency but did request that defense counsel provide a proposed order finding Elder competent. No such order was entered.

In June 2013, more than one year after the competency evaluations had been completed, Elder entered a guilty plea to the charges in exchange for a sentence of eighteen years in prison on the attempted murder charge, five years in prison on the obstruction and fleeing charges, and time served on the remaining two charges.

Elder filed a notice of appeal of her judgment and sentence, arguing that the trial court erred in accepting her plea without first adjudicating her competent to proceed. See Elder, 198 So.3d at 827. Because retrospective competency determinations may be made under certain circumstances, see Dougherty v. State, 149 So.3d 672, 679 (Fla. 2014), this court relinquished jurisdiction during the pendency of the appeal in order to allow the trial court to assess Elder's competency at the time she entered the plea.

Although not addressed in the original Elder opinion, during the relinquishment period this court granted multiple requests from the trial court for extensions of time in order to evaluate Elder's competency at the time of the plea. The trial court appointed four doctors to conduct competency evaluations of Elder, specifically requesting then-current competency determinations and determinations as of the time of the plea, June 2013.

In January 2016, the trial court rendered an order finding Elder incompetent at that time and finding that it was unable to determine Elder's competency retrospectively to the time of her plea:

This court's attempt to retrospectively determine Ms. Elder's competency at the time she entered her plea proved to be quite difficult.... [T]he court sought to procure the lay witness testimony of Kenneth Richardson, Esq., Ms. Elder's private trial counsel at the time she entered her plea. But Mr. Richardson had since relocated to Puerto Rico and the State informed the Court it would need more time before it could bring Mr. Richardson back for a hearing. The court thus requested a ninety-day extension of jurisdiction to comply with the Mandate, which [was] granted.
....
On January 20, 2016, the court held a competency hearing. The parties stipulated to the admission of the reports prepared by Dr. Alberts, Dr. Blitch, Dr. Otto, and Dr. Taylor into evidence. The reports collectively make it abundantly clear that it is not possible to determine Ms. Elder's competency to proceed retrospectively.... In light of the expert reports, the court concluded as follows: (1) Ms. Elder is currently incompetent to proceed, and (2) it is not possible to ascertain whether she was competent at the time she entered her guilty plea.

(Emphasis added.)

In our opinion reversing Elder's judgment and sentence, this court stated that "[b]ased on the doctors' evaluations, the trial court found that Elder is presently incompetent and that it is not possible to determine her competency retroactively." Elder, 198 So.3d at 827. We then concluded that "[b]ecause Elder was not adjudicated to be competent at the time she entered her plea, her plea was invalid," and we reversed and remanded "for further proceedings or such other action as may be appropriate." Id. at 827-28 (emphasis added). The original Elder opinion therefore necessitated the vacatur of the judgment because Elder's plea was held to be invalid; Elder had not been adjudged competent at the time of the plea and a nunc pro tunc determination of competency could not be made. Our "remand for further proceedings or such other action as may [have] be[en] appropriate" was necessary in light of Elder's incompetency to proceed at that time. The opinion issued March 9, 2016. Id. at 827.

Following remand from this court, hearings were held on March 23, 2016, and April 22, 2016. The transcript of the March 23 hearing indicates that the prosecutor believed that the retrospective competency issue was still under consideration by the trial court and that the trial court could send an order to this court for "directions as to how to proceed with [Elder] now because she's incompetent [again]." The prosecutor suggested that the trial court ask this court to "correct" the opinion. The trial court, however, decided to set a hearing "to get into this in more details [sic] because this is a mess." Defense counsel inquired as to what the hearing would address because the retrospective competency issue had already been determined by this court in the opinion reversing Elder's judgment and sentence.

At the April 22 hearing, the prosecutor argued that the testimony of Mr. Richardson, Elder's former counsel, could impact the trial court's determination of retrospective competency. Because Mr. Richardson was present at the hearing, the court entertained his testimony. Mr. Richardson testified, over many objections by defense counsel, that Elder appeared competent to him during his representation of her in 2013. He agreed that he had not presented an order of competency to the court and that he did not check the record to determine whether an order adjudicating Elder competent had been rendered. Mr. Richardson stated that he had worked in Puerto Rico from August 2013 through September 2015. His testimony established that he was present in Florida for at least four months prior to the trial court's order advising this court that a retrospective competency determination could not be made.

Following Mr. Richardson's testimony, the court and the attorneys discussed what could be done, given this court's opinion. Defense counsel asserted that our ruling was the law of the case, while the prosecutor suggested that the trial court send this court a request for reconsideration in light of Mr. Richardson's testimony. Defense counsel pointed out that there had been multiple hearings between Mr. Richardson's return to Florida and the court's order in January 2016 at which Mr. Richardson could have testified had the attorneys handling the case called upon him to do so.

Ultimately, because the prosecutor, defense counsel, and the court believed Elder to be then incompetent, the trial court ordered Elder to the State hospital. The court also set a status hearing to address the retrospective competency issue. After the status hearing, on June 24, 2016, the court entered the "Order Retrospectively Finding Defendant Competent; and Order Reinstating Judgment and Sentence." The June order states that the matter was before the court to address Elder's competency at the time she entered a guilty plea "pursuant to an order from the Second District." It also states that this court "relinquished jurisdiction to [the trial court] to address [Elder's] competency at the time she entered her plea." The order goes on to provide that "new evidence regarding [Elder's] competency has recently come to light, which neither [the trial court] nor the Second District had the benefit of considering when issuing its previous rulings." The court found that because "retrospective competency can be established through lay witness testimony, and Mr. Richardson provided such testimony at the April 22, 2016, evidentiary hearing ... the court is now convinced that [Elder] was in fact competent when she entered her plea on June 11, 2013." The court acknowledged that the experts were unable to make a retrospective competency determination.

The order concludes with the finding that "[j]ustice would not be served if [Elder] were to benefit from the fact that her lawyer indicated to the presiding judge that he was going to submit a proposed order finding her competent, but failed to do so." The court then purported to reinstate the judgment and sentence based upon the June 2013 plea agreement. At the time of "reinstatement," Elder remained incompetent.

Elder moved for reconsideration of the order finding her retrospectively competent. The motion alleged that Mr. Richardson's testimony was insufficient evidence upon which to base a competency determination and that his testimony violated attorney-client privilege. A hearing was held on January 6, 2017, at which the court denied the motion for reconsideration without elaboration. At that hearing, the court also considered competency testimony from experts and found that Elder was then competent.

II. Analysis

Elder asserts that the trial court failed to follow the mandate of this court in the original Elder opinion. We agree.

Where this court has issued a directive, "the circuit judge [is] legally obliged to follow it; indeed he [is] powerless to do otherwise." Hampton v. State, 988 So.2d 103, 105 (Fla. 2d DCA 2008) (quoting McGlade v. State, 941 So.2d 1185, 1189 (Fla. 2d DCA 2006) ). That is because the trial court's role in carrying out an appellate court's mandate is purely ministerial. See Rodriguez v. State, 924 So.2d 985, 986 (Fla. 2d DCA 2006) (citing Straley v. Frank, 650 So.2d 628, 628 (Fla. 2d DCA 1994) ).

This court reversed the judgment and sentence because in the absence of an adjudication of competency at the time of Elder's plea and given the trial court's inability to make a retrospective competency determination during the pendency of Elder's appeal, Elder's 2013 plea was invalid. Elder, 198 So.3d at 827-28. Yet, the basis of the "reinstated" judgment and sentence is that same plea.

Nothing in the Elder opinion authorized the trial court to revisit the retrospective competency issue. Cf. Parcilla v. State, 257 So.3d 156, 157 (Fla. 5th DCA 2018) ("We reverse and remand for the trial court to determine whether it can conduct a nunc pro tunc hearing regarding Parcilla's competency at the time of trial. If it is possible to do so, and the court determines that Parcilla was competent, then it shall enter a nunc pro tunc written order adjudicating him competent. If the court determines that Parcilla was incompetent, or if the court is unable to conduct a hearing, it shall vacate Parcilla's judgment and sentence." (citing Rumph v. State, 217 So.3d 1092, 1094-96 (Fla. 5th DCA 2017) ) ). This court's mandate did not allow for reconsideration of whether the plea was appropriately accepted; we had already determined that the plea was invalid. Cf. Hilliard v. State, 169 So.3d 264, 266 (Fla. 2d DCA 2015) ("We thus remand this case to the trial court for an evidentiary hearing to determine whether Mr. Hilliard's absence from his trial and sentencing hearing was voluntary or involuntary. Procedurally, we reverse the judgments and sentences to facilitate this hearing and its possible appellate review. If the trial court determines that Mr. Hilliard's absence from trial was voluntary, it should enter an appropriate order denying the motion and it should reinstate the judgments and sentences. This court, upon timely notice of appeal from the reinstated judgments and sentences, will review that order.").

The further proceedings and actions contemplated by the original Elder opinion necessarily concerned Elder's competency moving forward because the effect of the opinion was to determine that Elder remained incompetent; no order finding her competent had yet been rendered. Thus, on remand, the trial court could only take action related to determining whether Elder was then-currently competent because a trial court cannot proceed against an incompetent defendant. See Fla. R. Crim. P. 3.210(a) ("A person accused of an offense ... who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent.").

Our ruling invalidating Elder's plea "had the effect of no plea ever having been entered." See Miles v. State, 620 So.2d 1075, 1076 (Fla. 2d DCA 1993) ; see also State v. McClain, 509 So.2d 1360, 1361 (Fla. 2d DCA 1987) ("When the court set aside McClain's original plea, it was as if a plea had never been entered ab initio, and the state had the option of prosecuting the defendant on the original charges." (citation omitted) (citing Snell v. State, 388 So.2d 1353, 1354 (Fla. 5th DCA 1980) ) ). There was nothing for the court to reinstate. This court's conclusion that Elder's plea was invalid is the law of the case as to her competency at the time of the June 2013 plea. See McGlade, 941 So.2d at 1189. The trial court failed to adhere to this court's mandate and exceeded its authority in revisiting the retrospective competency determination and in reinstating the judgment and sentence.

Finally, although Elder primarily focuses on the trial court's failure to follow this court's mandate, she also argues that even if the new hearing on remand had been permitted pursuant to this court's prior opinion, the evidence presented was insufficient to support the court's finding of competency. We agree.

"Generally, a proper hearing to determine whether competency has been restored after a period of incompetence requires 'the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence.' " Dougherty, 149 So.3d at 677 (quoting Jones v. State, 125 So.3d 982, 983-84 (Fla. 4th DCA 2013) ). Dougherty instructs that "a nunc pro tunc competency evaluation c[an] be done where 'there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing.' " Id. at 679 (quoting Mason v. State, 489 So.2d 734, 737 (Fla. 1986) ). In this case, four experts concluded that they could not reach opinions as to Elder's retrospective competency and had varying degrees of certainty as to her then-current incompetency. Their respective evaluations were completed two years after the plea and were based on reports of competency entered a year prior to the plea. The only other witness to provide pertinent evidence was Mr. Richardson. His testimony occurred almost three years after the plea. It is true that "[e]ven in a situation where all the experts opine that a defendant is competent, the trial court could presumably disagree based on other evidence such as the defendant's courtroom behavior or attorney representations." Id. at 678. However, the experts' opinions are advisory, and we have found no case where the court independently determined competency in the face of the experts' opinions otherwise. Cf. Washington v. State, 162 So.3d 284, 289 (Fla. 4th DCA 2015) ("The trial court should not find a defendant competent where the record provides no reason to reject overwhelming and uncontested expert testimonies to the contrary." (quoting Duncan v. State, 115 So.3d 1121, 1121 (Fla. 1st DCA 2013) ) ). In this instance, the trial judge determining retrospective competency had no personal experience with Elder at the time of the plea as he was not the presiding judge at that time. Thus, the trial judge's determination of retrospective competency was based entirely on his current perception of Elder and on counsel's testimony. This is exactly the situation that Dougherty warned against: due process concerns resulting from the examination of a cold record and speculation. See 149 So.3d at 676 ("[I]t is necessary for courts to observe the specific hearing requirements set forth in the rules in order to safeguard a defendant's due process right to a fair trial and to provide the reviewing court with an adequate record on appeal."); cf. Mason, 489 So.2d at 737 ("The experts here will not have to rely upon a cold record or recent examination of the appellant, and the chances are therefore decreased that such a nunc pro tunc evaluation will be unduly speculative." (citing United States v. Makris, 398 F.Supp. 507, 511-12 (S.D. Tex. 1975) ) ). The due process concern is compounded when the possibility of counsel's ineffective assistance is considered, as pointed out by Elder.

III. Conclusion

This court "is vested with all the power and authority necessary for carrying into complete execution all of its judgments, decrees, orders, and determinations in the matters before it agreeable to the usage and principles of law." § 35.08, Fla. Stat. (2018). Accordingly, the motion to enforce mandate is granted. Elder's judgment and sentence is reversed and shall be vacated on remand. Upon a determination of competency and the entry of an order adjudicating Elder competent, the action against Elder may proceed; however, it may proceed only as if the June 2013 plea had never been entered into, ab initio. See McClain, 509 So.2d at 1361.

NORTHCUTT and BADALAMENTI, JJ., Concur.

      We note that such a request would have been stricken as unauthorized. See Hampton v. State, 988 So.2d 103, 105 (Fla. 2d DCA 2008) (discussing a competency issue and stating "we must note our disapproval of the trial judge's 'Response to Mandate,' which we strike as unauthorized").

      In the factual statements within the order, the court incorrectly asserts that the prior judge "orally announced that she found [Elder] to be competent." The prior judge made no oral pronouncement or any determination as to competency. She only asked for an order with that finding for her signature, which is insufficient. See Moulton v. State, 230 So.3d 934, 937 (Fla. 2d DCA 2017) ("[T]he court may not rely solely on the parties' stipulation to competency, and the record must be clear that the court has made an independent determination of the defendant's competency.").

      We note that at the time the court held the competency hearing on remand, Elder remained incompetent. Likewise, at the time the court purported to reinstate the judgment and sentence Elder was incompetent. The court was without authority to proceed against Elder at either of these times. See McCroan v. State, 148 So.3d 548, 549 (Fla. 1st DCA 2014) (granting motion to enforce mandate and "mak[ing] it explicitly clear that the court is without authority to proceed against McCroan until the court finds that his competency has been restored").


author: COHEN, J.

text:
    Thomas ANTINARELLI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3377
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 26, 2019
    James S. Purdy, Public Defender, and Darnelle P. Lawshe, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Thomas Antinarelli appeals the judgment and sentence imposed following a violation of probation hearing. We affirm.

In April 1999, Antinarelli was sentenced as a habitual felony offender to a split sentence of eighteen years in the Department of Corrections followed by twelve years' probation. During his probationary period, he was arrested on charges of sexual battery, false imprisonment, and violating his probation. An officer subsequently filed violation of probation affidavits alleging two violations of condition 5 based on the charges of sexual battery and false imprisonment, and a violation of condition 6 based on association with a person engaged in criminal activity.

The court held Antinarelli's violation of probation hearing in conjunction with his criminal trial. Although the jury acquitted Antinarelli on the sexual battery and false imprisonment charges, the trial court, utilizing the lower burden of proof, found that the State established the allegations in the violation of probation affidavits by a preponderance of the evidence. See Hill v. State, 890 So.2d 485, 487 n.1 (Fla. 5th DCA 2004) ("An acquittal in a criminal case does not preclude a judge from finding a probation violation for the same conduct because the burdens [sic] of proof in a criminal case is beyond a reasonable doubt, whereas in a probation violation case, it is by a preponderance of the evidence." (citing Morris v. State, 727 So.2d 975 (Fla. 5th DCA 1999) ) ).

The court's orders found Antinarelli "in violation of probation conditions (5(X3), 6)." Based on transcripts of the trial and sentencing hearing, the court found that Antinarelli violated his probation by committing two sexual offenses, falsely imprisoning the victim, and associating with a person engaged in criminal behavior. However, the portions of the orders stating "(5(X3)" improperly added an uncharged act, as Antinarelli was charged only with two violations of condition 5. E.g., Manis v. State, 30 So.3d 586, 587 (Fla. 5th DCA 2010) (explaining that a trial court cannot revoke probation based on an act not charged within the violation of probation affidavit (citations omitted) ). We view this only as a scrivener's error based on the record before us. E.g., St. Denis v. State, 128 So.3d 950 (Fla. 5th DCA 2013) (affirming order but remanding for correction of scrivener's error where transcript of hearing clearly illustrated trial court's intent). Thus, we affirm the orders of violation of probation but remand for correction of the orders consistent with this opinion.

AFFIRMED and REMANDED for correction of scrivener's errors.

EVANDER, C.J. and EISNAUGLE, J., concur.

      The victim in this case was a prostitute.


author: LAMBERT, J.

text:
    Robert John SHELKO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1162
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 26, 2019
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

The sole issue that we address in this case is the not-infrequently-raised claim by defendants that the trial judge in their cases committed fundamental error in considering unsubstantiated allegations of misconduct at a sentencing hearing. Because we conclude that this is what happened here, we reverse the sentence imposed and remand for resentencing by a different judge.

The facts of this case are straightforward and uncomplicated. Robert John Shelko was stopped by a Citrus County Sheriff's Deputy for failing to maintain his vehicle in a single lane of traffic. During the course of this stop, a canine deputy arrived on the scene, and his dog conducted an exterior search of Shelko's vehicle. The dog alerted to an odor of narcotics; and, during the subsequent search of the vehicle at the scene, a pipe used to smoke methamphetamine was seized. Shelko was then placed under arrest; and during a search incident to his arrest, two separate baggies of methamphetamine were found in one of Shelko's pants pockets. The deputies also seized $ 1300 in cash.

The State charged Shelko with possession of methamphetamine, a third-degree felony, and possession of paraphernalia. Shelko proceeded to trial and was convicted as charged. The trial judge held a sentencing hearing immediately after the jury was discharged. After hearing from Shelko as well as his mother and daughter, and after very brief argument from the prosecutor and defense counsel, the trial judge examined the methamphetamine and thereafter stated:

The only thing I can say, Mr. Shelko, dealing with the issue is that is what I called cartel quality meth. This is not shake and bake. And you know what shake and bake is, right? Shake and bake is the cheap stuff that's made locally.
This is crystal clear methamphetamine, window glass, window pane, crystal. This is cartel quality methamphetamine. It would probably light up every one of you in this room, okay.
And the fact that you had these separate amounts of it and a quantity of cash causes me great consternation.

The judge then sentenced Shelko to serve the maximum sentence of five years' imprisonment for the conviction of possession of methamphetamine. Immediately thereafter, the judge decided to order the forfeiture of the $ 1300 found in Shelko's possession when he was arrested, observing that "although [Shelko] wasn't charged with sale or distribution, it's obvious that when you look at those two different amounts of cartel quality meth that [the money] was a result of ill gotten gains."

Shelko argues on appeal that the trial court erred in sentencing when it considered unsubstantiated allegations of misconduct. A trial court commits fundamental error when it considers constitutionally impermissible factors when imposing sentence. See Yisrael v. State , 65 So.3d 1177, 1177 (Fla. 1st DCA 2011) (citing Nawaz v. State , 28 So.3d 122, 124-25 (Fla. 1st DCA 2010) ; Jackson v. State , 39 So.3d 427, 428 (Fla. 1st DCA 2010) ). Furthermore, a defendant's due process rights are violated when the trial court considers such factors as unsubstantiated allegations of misconduct in sentencing. See McGill v. State , 148 So.3d 531, 531-32 (Fla. 5th DCA 2014) (citing Crouse v. State , 101 So.3d 901, 903 (Fla. 4th DCA 2012) ).

The trial judge here appears to have based his sentencing decision, at least in part, on what he perceived to be the "cartel quality of the methamphetamine" found in Shelko's possession. There was absolutely no testimony or evidence presented at trial to suggest Shelko was somehow involved in a drug cartel or acquired the methamphetamine from a distributor for a cartel. In fact, the only evidence at trial was that Shelko acquired this drug "locally." The State also never argued or suggested that the methamphetamine or Shelko was somehow related to a drug cartel. Moreover, although the State did not charge Shelko with sale of methamphetamine or possession of methamphetamine with the intent to sell or deliver, the judge expressed his "great consternation," just before announcing his sentence, regarding the amount of money in Shelko's possession when arrested. This comment, plus the judge's statement immediately after sentencing that the money found in Shelko's possession was "a result of ill gotten gains," clearly suggests the judge's belief that Shelko was also involved in the sale of methamphetamine. It is axiomatic that a trial judge violates a defendant's due process rights by basing his or her sentence, at least in part, on uncharged offenses. See MacIntosh v. State , 182 So.3d 888, 889 (Fla. 5th DCA 2016) (citing Crouse , 101 So.3d at 903 ).

Where the record reflects that the trial judge may have relied upon impermissible considerations in imposing sentence, the State bears the burden to show from the record as a whole that the judge did not rely on such considerations. See Brown v. State , 225 So.3d 947, 948 (Fla. 5th DCA 2017) (citing Nusspickel v. State , 966 So.2d 441, 444-45 (Fla. 2d DCA 2007) ). The State has not met its burden here.

Accordingly, we reverse Shelko's sentence and remand for resentencing before a different judge.

REVERSED and REMANDED for resentencing.

EVANDER, C.J., and BERGER, J., concur.

      Shelko was also sentenced to a "time served" jail sentence for possession of paraphernalia, which has not been challenged in this appeal.

      The resentencing before the successor judge is a de novo proceeding. Shelko must be present at the hearing with court-appointed counsel, if he is indigent. Also, our reversal here does not preclude the successor judge from imposing five-year prison sentence or any other lawful sentence that the judge deems appropriate, after his or her proper review of the record, receipt of any further evidence, and argument from the parties.


author: Per Curiam.

text:
    BOARD OF TRUSTEES OF FLORIDA A & M UNIVERSITY, a public body corporate, Petitioner, v. Ann L. Wead KIMBROUGH, Respondent.
    No. 1D19-0217
    District Court of Appeal of Florida, First District.
    April 29, 2019
    Maria A. Santoro of Dennis Jackson Martin & Fontela, P.A., Tallahassee, for Petitioner.
    Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Bensonhurst Drywall, Inc. v. Ledesma , 583 So.2d 1094 (Fla. 4th DCA 1991) ("Petitioner cannot evade the time requirements of Florida Rule of Appellate Procedure 9.100(c) by filing successive motions addressed to the same issue.")

Lewis, Wetherell, and Jay, JJ., concur.


text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Regina SHEPPARD, Appellee.
    No. 1D18-2388
    District Court of Appeal of Florida, First District.
    April 29, 2019
    Scot E. Samis and Christopher Shand of Traub Lieberman Straus & Shrewsberry, LLP, St. Petersburg, for Appellant.
    Mark A. Nation and Paul W. Pritchard of The Nation Law Firm, Longwood, for Appellee.
   Per Curiam.

State Farm Florida Insurance Company appeals an interlocutory order denying its motion to compel appraisal. We have jurisdiction, see Fla. R. App. P. 9.130(a)(3)(C)(iv), and our review is de novo, MKL Enters. LLC v. Am. Traditions Ins. Co. , 265 So.3d 730 (Fla. 1st DCA 2019).

After Appellee Regina Sheppard suffered water damage in her home, she filed a claim with State Farm. State Farm agreed to pay for the water damage, but it refused to cover costs of repairing the leaky pipes that caused the damage. Sheppard then sued State Farm, and State Farm demanded an appraisal under the policy terms. State Farm then moved to abate the litigation and compel appraisal. The trial court denied the motion.

On appeal, State Farm argues that because it acknowledges coverage for some portion of Sheppard's claim, appraisal is appropriate. Sheppard, on the other hand, argues that whether the pipes are covered is a coverage question for judicial resolution, not for appraisal.

Based on our recent decision in MKL Enterprises , we conclude that because State Farm acknowledged that some portion of the total loss is covered, the trial court should have granted the motion to compel appraisal. See id. (noting that by tendering partial payment, insurer "admitted coverage for some damage while declining to cover all repair costs [and therefore] did not 'wholly deny' coverage"); see also Johnson v. Nationwide Mut. Ins. Co. , 828 So.2d 1021, 1022 (Fla. 2002) (concluding that "causation is a coverage question for the court when an insurer wholly denies that there is a covered loss and an amount-of-loss question for the appraisal panel when an insurer admits that there is covered loss, the amount of which is disputed"); People's Tr. Ins. Co. v. Tracey , 251 So.3d 931, 933 (Fla. 4th DCA 2018) (reversing and remanding for trial court to compel appraisal where "the insurer admitted coverage for the interior damage, but declined to repair the roof").

REVERSED and REMANDED .

Lewis, Winsor, and M.K. Thomas, JJ., concur.


text:
    Terry D. ELLISON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1629
    District Court of Appeal of Florida, First District.
    April 29, 2019
    Robert David Malove of the Law Office of Robert David Malove, P.A., Fort Lauderdale, for Petitioner.
    Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

In the instant petition alleging ineffective assistance of appellate counsel, Terry Ellison, Jr. claims his appellate counsel failed to file a rule 3.800(b)(2) motion to preserve a sentencing error-that his scoresheet improperly included an "adult-on-minor sex offense" multiplier. He argues that the inclusion of this multiplier effectively doubled the sentencing points. We determine that this claim may be raised in the instant petition, see, e.g., Marshall v. State , 241 So.3d 969 (Fla. 1st DCA 2018), and grant the petition.

Petitioner correctly contends that his scoresheet was incorrect. The "adult-on-minor sex offense" multiplier in section 921.0024(1)(b), Florida Statutes, applies only to certain offenses listed in the statute. Petitioner's offense, unlawful sexual activity under section 794.05, Florida Statutes, is not a listed offense. Therefore, the multiplier did not apply to Petitioner as a matter of law, and appellate counsel was ineffective in failing to move to correct the sentence.

This scoresheet error was not harmless. The record does not show that the trial court "would-have-imposed" the same sentence using a correct scoresheet. See Sanders v. State , 35 So.3d 864, 870-71 (Fla. 2010) ; Ray v. State , 987 So.2d 155, 156 (Fla. 1st DCA 2008). Petitioner was sentenced to 153 months in prison, which was the lowest permissible sentence under the incorrect scoresheet. Although this sentence falls within the permissible range under a corrected scoresheet, the trial court made no statement that it would have otherwise imposed the same sentence absent the scoresheet error.

Accordingly, we vacate Petitioner's sentence and remand for a new sentencing proceeding using a corrected scoresheet. See Anderson v. State , 988 So.2d 144, 146 (Fla. 1st DCA 2008) ("[W]here a second appeal would be redundant or unnecessary, it is appropriate to simply grant petitioner the relief to which he would have been entitled had the issue been raised in the original appeal.").

PETITION GRANTED .

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


author: Roberts, J.

text:
    James FARMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-331
    District Court of Appeal of Florida, First District.
    April 29, 2019
    Matthew R. McLain of McLain Law, P.A., Longwood, for Appellant.
    Ashley Moody, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Roberts, J.

In Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the United States Supreme Court declared that it was a violation of the Eighth Amendment to impose a sentence of life imprisonment without parole upon a juvenile offender who was convicted of a non-homicide crime. In Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Supreme Court extended its holding from Graham to provide that murderers who were juveniles at the time of the commission of their crimes cannot not be sentenced to mandatory life imprisonment without the possibility of parole. In this appeal of a petition pursuant to Florida Rule of Criminal Procedure 3.800(a), the appellant asks us to extend the holdings of Graham and Miller to provide that his sentence for his participation in a murder, which he committed when he was an adult, is illegal. We will not do so. See Romero v. State , 105 So.3d 550, 552-53 (Fla. 1st DCA 2012) (finding that the defendant's life in prison sentence was not unconstitutional as he committed his crime at the age of eighteen).

The United States Supreme Court has held that there is a bright line between being a juvenile and an adult; that line is eighteen. The Court first discussed the bright line in Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). In Roper , the defendant was sentenced to death for his involvement in a murder that was committed when he was seventeen years and five months old. Id. at 557-58, 125 S.Ct. 1183. During the penalty phase, the defendant argued that he should not receive a death sentence because he had no prior convictions or charges previously filed against him, he was very immature, he was very impulsive, and he was very susceptible to being manipulated or influenced. Id. at 558-59, 125 S.Ct. 1183. In determining whether the defendant's sentence violated the Eight Amendment, the Court categorically stated that juveniles are different because of their immaturity, their lack of responsibility, their greater susceptibility to negative influences and pressure, and the fact that they have fewer fixed personality traits. Id. at 569-71, 125 S.Ct. 1183. After having acknowledged those differences, the Court declared that there was a need for a bright line even though a bright line does not allow considerations for those that mature faster or slower. Id. at 574, 125 S.Ct. 1183. The Court held that because society draws the line at eighteen between childhood and adulthood, that is where the line is with regards to imposing the death penalty. Id.

Five years after Roper was decided, the United States Supreme Court reaffirmed that eighteen was the line between being a juvenile and an adult. Graham , 560 U.S. at 75-79, 130 S.Ct. 2011. This time the Court explained that it was explicitly rejecting the case-by-case approach and why. Id. at 76-79, 130 S.Ct. 2011. The Court also explained why it chose the bright line rule of eighteen. Id. at 79-84, 130 S.Ct. 2011.

The bright-line rule of when adulthood begins and childhood ends drawn by the United States Supreme Court has not been changed by the Florida Supreme Court nor has the Florida Supreme Court stated that the Florida Constitution offers a different level of protection. See e.g. Foster v. State , 258 So.3d 1248 (Fla. 2018) (declining to extend Roper to an eighteen-year-old defendant sentenced to death) (reaffirming that society has drawn the line at eighteen); Branch v. State , 236 So.3d 981, 985-97 (Fla. 2018) (declining to extend Roper to a twenty-one-year-old defendant sentenced to death); Guzman v. State , 183 So.3d 1025, 1027 (Fla. 2016) (Pariente, J. concurring) (even though there was less than a year difference between the defendants in Graham and Guzman , society must draw a line somewhere, and society consistently draws it at the age of eighteen). In fact, Florida courts must construe the prohibition against cruel and unusual punishment in conformity with the United States Supreme Court even if they were inclined to follow the direction of other courts that are deviating from the bright-line rule of age eighteen. Art. I, § 17, Fla. Const.

Even though some courts may have deviated from the bright line, society, as a whole, continues to hold the line at eighteen. At eighteen, a person is deemed mature enough to exercise the sovereign franchise. At eighteen, a person is mature enough to sit in judgment of his or her fellow citizens on a jury in all but five states. At eighteen, a person can join the military without needing parental consent. At eighteen, male citizens are required to register for the military draft so that in times of national emergency, they may be compelled to fight and perhaps die for their country. With the exception of two states, at eighteen, a person acquires the unrestricted right to consent to marriage. Even though many states have recently enacted or proposed legislation to curtail the number of exceptions allowing minors to enter into marriage, no state has changed the age of the unrestricted right to marry. In all but three states, at eighteen, a person acquires the unrestricted right to enter into and be held accountable for contracts. At eighteen, a person obtains the unrestricted right to consent to healthcare services in every state except six.

It is well established that eighteen is the dividing line between adult privileges and responsibilities and the privileges and responsibilities of children. We decline the invitation to treat this adult murderer as a child.

AFFIRMED .

B.L. Thomas, C.J., and Osterhaus, J., concur.

      The appellant also claimed that he was convicted of a crime that he was not included in his indictment. We find no merit in this argument and affirm without comment.

      11 C.F.R. § 110.18.

      See Ala. Code § 12-16-60 (2018) ; Alaska Stat. § 09.20.010 (2018) ; Ariz. Rev. Stat. Ann § 21-201 (2018); Ark. Code Ann. § 16-31-102 (2018); Cal. Civ. Proc. Code § 203 (West 2018) ; Colo. Rev. Stat. § 13-71-105 (2018) ; Conn. Gen. Stat. § 51-217 (2018); Del. Code Ann. tit. 10, § 4509 (2018); D.C. Code § 11-1906 (2018) ; § 40.01, Fla. Stat (2018) ; Ga. Code Ann. § 15-12-60 (2018); Haw. Rev. Stat. § 612-4 (2018); Idaho Code § 2-209 (2018) ; 705 Ill. Comp. Stat. Ann. 305/2 (West 2018) ; Ind. Code § 33-28-5-18 (2018) ; Iowa Code § 607A.4 (2018); Kas. R. Jury Stand. 4 (2018); Ky. Rev. Stat. Ann. § 29A.080 (West 2018) ; La. Code Crim. Proc. Ann. art. 401 (2018); Me. Stat. tit. 14 § 1211 (2018); Md. Cod Ann., Cts. & Jud. Proc. § 8-103 (West 2018) ; Md. Code, Gen. Provisions § 1-401 (2018); Mass. Gen. Laws ch. 234A § 4 (2018); Mich. Comp. Laws § 600.1307a (2018) ; Minn. R. 808 (2018); Miss. Code Ann. § 13-5-1 (2018) ; Mo. Rev. Stat. § 494.425 (2018) ; Mont. Code Ann. § 3-15-301 (2018); Neb. Rev. Stat. § 25-1601 (2018) ; Nev. Const. Art. 2, § 1 (2018); N.H. Rev. Stat. Ann. § 500-A:7-a (2018) ; N.J. Stat. Ann. § 2B:20-1 (2018) ; N.M. Stat. Ann. § 38-5-1 (2018) ; N.Y. Jud. Law § 510 (McKinney 2018) ; N.C. Gen. Stat § 9-3 (2018) ; N.D. Cent. Code § 27-09.1-08 (2018); Ohio St. Trial Ct. Jury Mgmt. Standard 4 (2018); Okla. Stat. tit. 38 § 28 (2018); Okla. Const. Art. 3 § 1 (2018); Or. Rev. Stat. § 10.030 (2018); 42 Pa. Const. Stat. and Con. Stat. Ann. § 4502 (West 2018); 25 Pa. Const. Stat. and Con. Stat. Ann. § 2811 (West 2018); 9 R.I. Gen. Laws § 9-9-1.1 (2018) ; S.C. Cod Ann. § 14-7-130 (2018); S.D. Codified Laws § 16-13-10 (2018) ; Tenn. Code Ann. § 22-1-101 (West 2018) ; Tex. Gov't Code Ann. § 62.102 (2018); Utah Cod Ann. § 78B-1-105 (West 2018); Vt. Stat. Ann. tit. 4 § 960 (2018); Vt. Stat. Ann. tit. 1 § 173 (2018); Va. Code Ann. § 19.2-195 (2018) ; Wash. Rev. Code § 2.36-070 (2018); W. Va. Code § 52-1-8 (2018) ; Wis. Stat. § 756.02 (208) ; Wyo. Stat. Ann. § 14-1-101 (2018) ; Wyo. Stat. Ann. § 1-11-101 (2019).

      Are You Eligible to Join the Military, Millitary.com, https://www.military.com/join-armed-forces/join-the-military-basic-eligibility.html (last visited March 26, 2019).

      50 U.S.C. § 3803.

      See Ala. Code § 30-1-5 (2018) ; Alaska Stat. § 20.05.171 (2018); Ariz. Stat. Ann. § 25-102 (2018); Ark. Code Ann. § 9-11-102 (2018); Cal. Fam. Code § 301 (2018); Colo. Rev. Stat. § 14-2-106 (2018) ; Conn. Gen. Stat. § 46b-20a (2018); Del. Code Ann. tit., 13 § 123 (2019); D.C. Code § 46-411 (2018) ; § 741.04, Fla. Stat. (2018) ; Ga. Code Ann. § 19-3-2 (2018); Haw. Rev. Stat. § 572-2 (2018); Idaho Code § 32-202 (2018) ; Ill. Comp. Stat. 5/203 (2018); Ind. Code § 31-11-2-1 (2018) ; Iowa Code § 595.3 (2018); Kan. Stat. Ann. § 23-2505 (2018); Ky. Rev. Stat. Ann. § 402.210 (2018); La. Stat. Ann. § 29 (2018); La. Child. Code Ann. art. 1545 (2018); Me. Stat. tit. 19 § 652 (2018); Md. Code Ann. Fam. Law § 2-301 (2018); Mass. Gen. Laws ch. 207 § 7 (2018); Mich. Comp. Laws § 551.103 (2018) ; Minn. Stat. § 517.02 (2018) ; Miss. Code Ann. § 93-1-5 (2018) ; Mo. Ann. Stat. § 451.090 (2018); Mont. Code Ann. § 10-1-202 (2018); Neb. Rev. Stat. § 42-102 (2018) ; Nev. Res. Stat. § 122.020 (2018); N.H. Rev. Stat. Ann. § 457:5 (2018) ; N.J. Stat. Ann. § 37:1-6 (2018) ; N.Y. Domestic Relations Law § 7 (McKinney 2018) ; N.C. Gen. Stat. § 51-2 (2018) ; N.D. Cent. Code § 14-03-02 (2018); Ohio Rev. Code Ann. § 3101.01 (2018); Okla. Stat. tit. 43 § 3 (2018); 23 Pa. Cons. Stat. § 1304 (2018); R.I. Gen. Laws §§ 15-2-11, -12-1 (2018); S.C. Code Ann. § 20-1-300 (2018) ; S.D. Codified Laws § 25-1-9 (2018) ; Tenn. Code Ann. § 36-3-105 (2018); Tex. Fam. Code Ann. § 2.101 (West 2017) ; Utah Code Ann. § 30-1-2 (West 2018) ; Vt. Stat. Ann. tit. 18 § 5154 (2018); Va. Code Ann. § 20-48 (2018) ; Wash. Rev. Code § 26.04.010 (2018); W. Va. Code § 48-2-301 (2018) ; Wis. Stat. § 765.02 (2018); Wyo. Stat. Ann. § 20-1-102 (2018).

      See H.B. 2006, 53rd Gen. Assemb., 2d Reg. Sess. (Ariz. 2018); H.B. 1708, 92d Gen. Assemb. (Ark. 2019); H.B. 5442, 2017 Gen. Assemb, Jan. Sess. (Conn. 2017); H.B. 337, 149th Gen. Assemb., 2d Reg. Sess. (Del. 2018); C.S.C.S.S.B. 140, 120th Reg. Sess. (Fla. 2018); H.B. 228, 155th Gen. Assemb., (Ga. 2019); H.B. 790, 30th Reg. Sess. (Hi. 2019); H.B. 98, 95th Reg. Sess. (Id. 2019); S.B. 167, 129th Reg. Sess. (Me. 2019); H.B. 1147, 439th Gen. Assemb. (Md. 2019); H.B. 4003, 190th Reg. Sess. (Mich. 2019); S.B. 655, 99th Gen. Assemb., 2nd Reg. Sess. (Mo. 2018); H.B. 533, 66th Reg. Sess. (Mont. 2019); A.B. 139, 80th Reg. Sess. (Nev. 2019); A.B. 865, 218th Reg. Sess. (N.J. 2018); H.B. 360, 203d Gen. Assemb. (Pa. 2019); S.B. 395, 123d Gen. Assemb., 1st Reg. Sess. (S.C. 2019); Vt. Stat. Ann. tit. 18 § 5154 (2019); H.B. 1883, 66th Reg. Sess. (Wash. 2019); H.B. 60, 65th Gen. Sess. (Wyo. 2019).

      See Ala. Code § 26-1-1 (2018) ; Alaska Stat. § 25.20.010 (2018) ; Ariz. Stat. § 8-101 (2018); Ark. Code Ann. § 9-26-101 (2018); Cal. Fam. Code §§ 6500, 6710 (2018); Colo. Rev. Stat. § 13-22-101 (2018) ; Conn. Gen. Stat. § 1-1d (2018); Del. Code Ann tit. 6, § 2705 (2018); D.C. Code § 46-101 (2018) ; § 743.07, Fla. Stat. (2018) ; Ga. Code Ann § 13-3-20 (2018); Haw. Rev. Stat. Ann. § 577-1 (2018); Idaho Code §§ 29-101, 32-101 (2018) ; 755 Ill. Comp. Stat. 5/11-1 (2018) ; Ind. Code §§ 1-1-4-5, 32-22-1-1 (2018) ; Iowa Code §§ 599.1 -.2 (2018); Kan. Stat. Ann. §§ 38-101, -102 (2018); Ky. Rev. Stat. Ann. § 2.015 (West 2018) ; La. Civ. Code Ann. art. 29, 1918 (2018) ; Me. Stat. tit. 33 § 52 (2018); Md. Code Ann., Rule § 1-401 (West 2018); Mass. Gen. Laws ch. 231 § 850 (2018); Mich. Comp. Laws §§ 600.1403, 722.4 (2018) ; Minn. Stat. §§ 524.2-501, 645.452 (2018) ; Miss. Code Ann. §§ 1-3-27, 93-19-13 (2018) ; Mo. Ann. Stat. § 431.060 (West 2018) ; Mont. Code Ann. 41-1-304, -401 (2018); Neb. Rev. Stat. § 43-2101 (2018) ; Nev. Rev. Stat. §§ 129.010, 609.550 (2018); N.H. Rev. Stat. Ann. § 21:44 (2018) ; N.J. Stat. Ann. §§ 9:17A-2, 9:17B-3 (2018) ; N.M. Stat. Ann. § 28-6-1 (2018) ; N.Y. Gen. Oblig. Law § 3-101 (McKinney 2018) ; N.C. Gen. Stat. § 48A-2 (2018) ; N.D. Cent. Code §§ 9-02-01, 14-10-01 (2018); Ohio Rev. Code Ann. § 3109.01 (2018); Okla. Stat. tit. 15 §§ 13, 17 (2018); Or. Rev. Stat. § 109.510 (2018); 23 Pa. Stat. & Cons. Stat. Ann. § 5101 (2018); 15 R.I. Gen. Laws § 15-12-1 (2018) ; S.C. Code Ann. §§ 15-1-320, 63-5-310 (2018) ; S.D. Codified Laws §§ 26-1-2, 53-2-2 (2018) ; Tenn. Code Ann. § 1-3-105 (2018); Tex. Fam. Code Ann. § 31.006 (2018); Tex. Civ. Prac. & Rem. Code § 129.001 (2018); Utah Code Ann. § 15-2-1, -2 (2018); Vt. Stat. Ann. tit. 1 § 173 (2018); Va. Code Ann. § 1-204 (2018) ; Wash. Rev. Code Ann. § 26.28.010, -.030 (West 2018); W. Va. Code § 2-3-1 (2018) ; 298 N.W. 562, 565 (Wis. 1980) (generally minor may disaffirm contract); Wis. Stat. § 990.01 (2018); Wyo. Stat. Ann. § 14-1-101 (2018).

      See Ala. Code § 22-8-4 (2018) ; Alaska Stat. §§ 22.20.010, -.025 (2018); Ariz. Stat. §§ 8-101, 44-132 (2018); Ark. Code Ann. §§ 9-25-101, 20-9-602 (2018); Cal. Fam. Code §§ 6500, -922 ; Colo. Rev. Stat. § 13-22-103 (2019) ; Conn. Gen. Stat. Ann. § 54.1-2969 (West 2018); Del. Code Ann. tit. 13, § 707 (2018); D.C. Code §§ 16-4901, 46-101 (2018) ; Ga. Code Ann. §§ 31-9-2, -1-1; §§ 743.0645, -.067, Fla. Stat. (2018); Haw. Rev. Stat. Ann. §§ 577-1, -28 (2018); Idaho Code § 39-4503 (2018) ; 410 Ill. Comp. Stat. 210/1.5 (2018) ; 755 Ill. Comp. Stat. 5/11-1 (2018) ; Ind. Code § 16-36-1-3 (2018) ; Iowa Code §§ 135.17, 599.6 (2018); Kan. Stat. Ann. §§ 38-101, -123b (2018); Ky. Rev. Stat. Ann. §§ 2.015, 214.185 (2018); La. Stat. Ann. § 40:1159.4 (2018); La. Civ. Code Ann. art. 29 (2018) ; Me. Rev. Stat. Ann. tit. 22 § 1503 (2018) ; Me. Rev. Stat. Ann. tit. 1 § 73 (2018) ; Md. Code Ann., Gen. Provisions § 1-401 (2018); Md. Code Ann., Health-Gen § 20-102 (2018); Mass. Gen. Laws ch. 112, § 12F (2018); Mass. Gen. Laws ch. 4 § 7 (2018); Mich. Comp. Laws Ann. §§ 330.1264, 722.4 (2018) ; Minn. Stat. §§ 144.341, 722.52 (2018); Miss. Code Ann. §§ 1-3-27, 41-41-3 (2018) ; Mo. Rev. Stat. § 431.058 (2018) ; Mont. Code Ann. §§ 41-1-401, -402 (2018); Neb. Rev. Stat. §§ 43.2101, 71-9604 (2018); Nev. Rev. Stat. §§ 129.010, -.030 (2018); N.H. Rev. Stat. Ann. §§ 21:44, 126-Z:1 (2018) ; N.J. Stat. Ann. §§ 9:17A-1, 9:17B-3 (2018) ; N.M. Stat. Ann. §§ 24-7A-6.2, 28-6-1 (2018) ; N.Y. Public Health Law § 2504 (McKinney 2018) ; N.C. Gen. Stat. §§ 48A-2, 90-21.1 (2018) ; N.D. Cent. Code Ann. §§ 14-10-01, 14-10-17.1 (West 2018) ; Ohio Rev. Code Ann § 3719.061 (2018); Okla. Stat. tit. 63 §§ 2601, 2602 (2018); Or. Rev. Stat. § 109.640 (2018); 35 Pa. Cons. Stat. § 10101 (2018); 23 R.I. Gen. Laws § 23-4.6-1 (2018) ; S.C. Code Ann. § 63-5-340 (2018) ; S.D. Codified Laws §§ 20-9-4.2, 26-1-2 (2018) ; Tenn. Code. Ann. §§ 1-3-105, 68-34-107 (2018); Tex. Fam. Code Ann. § 32.003 (West 2018) ; Tex. Civ. Prac. & Rem. Code § 129.001 (2018); Utah Code Ann. § 78B-3-406 (West 2018) ; Vt. Stat. Ann. tit. 18 § 4226 (2018); Vt. Stat. Ann. tit. 1 § 173 (2018); Va. Code Ann. §§ 1-204, 54.1-2969 (2018) ; Wash. Rev. Code Ann. §§ 7.70.065, 26.28.010 (West 2018) ; W. Va. Code §§ 2-3-1, 49-2-701 (2018) ; Wis. Stat. §§ 48.375, 990.01 (2018); Wyo. Stat. Ann. (2018).


author: B.L. Thomas, C.J. Winokur, J., concurring.

text:
    Mohammed ALSUBAIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3517
    District Court of Appeal of Florida, First District.
    April 29, 2019
    Jason Cromey, Pensacola, for Appellant.
    Ashley Moody, Attorney General, Anne Conley and Amanda D. Stokes, Assistant Attorneys General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges the lower court's denial of his motion for postconviction relief, arguing that his counsel was ineffective in failing to advise him of the deportation consequences of his no contest plea. Because Appellant has shown a reasonable probability that he would have rejected the plea and proceeded to trial had he been adequately informed of the plea's deportation consequences, we reverse.

Facts

In February 2014, Appellant was charged by information with possession of a controlled substance (cocaine), possession of a controlled substance (less than 20 grams of cannabis), and driving without a valid driver's license.

The charges stemmed from Appellant's arrest after an Escambia County sheriff's deputy stopped Appellant for running a red light. During the traffic stop, Appellant told the officer he did not have a valid driver's license and that there was marijuana under the driver's seat. The officer searched Appellant's person incident to the arrest and found a "small white rock" in Appellant's front left pocket; the rock field-tested positive as a cocaine-based substance.

Appellant filed a motion to suppress the evidence seized during the traffic stop, arguing that the traffic stop was unlawful. The trial court denied Appellant's motion. Appellant entered a plea of no contest and reserved the right to appeal the trial court's ruling on his motion to suppress. We affirmed per curiam. Alsubaie v. State , 151 So.3d 1231 (Fla. 1st DCA 2014) (Table).

Appellant's plea agreement stated that he understood that if he was not a citizen of the United States, his plea to the charges may result in his deportation or expulsion from the United States. During the plea colloquy, Appellant stated he had read, understood, agreed with, and signed the plea agreement:

THE COURT: And you understand about being a U.S. citizen?
[APPELLANT]: Yes, sir.
THE COURT: It's possible that this could -- you could be deported. Well, he's not adjudicated, but it's possible you could be deported; do you understand that?
[APPELLANT]: Yes, sir.

(Emphasis added.) The trial court found that Appellant freely and voluntarily entered the plea, and the court accepted the plea. The court withheld adjudication on the felony cocaine possession count, and sentenced Appellant to 36 months' probation. The court adjudicated Appellant guilty on the two misdemeanor counts, and sentenced Appellant to concurrent six-month terms of probation for each count.

In 2016, Appellant received a Notice to Appear from the U.S. Department of Homeland Security ("DHS"), stating that he was removable from the United States due to his convictions for possession of cocaine and possession of marijuana. Appellant subsequently filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing that counsel was ineffective for failing to advise Appellant of the immigration consequences of his plea. Appellant attached an affidavit to his motion as an exhibit, swearing that "[i]f I had known that by entering my plea in this case I would become subject to mandatory deportation I never would have entered it."

At an evidentiary hearing on Appellant's motion, Appellant testified that he is a citizen of Saudi Arabia, and he received lawful, permanent resident status in the United States in 2013. Appellant's postconviction counsel stated that although the trial court withheld adjudication on the felony count, the federal government treats a felony plea of nolo contendere as the functional equivalent of being adjudicated guilty of a felony, even if adjudication is withheld. Appellant testified that he was therefore placed in removal proceedings as a convicted felon, despite the court withholding adjudication.

Appellant testified that his trial counsel did not advise him that his no contest plea would result in his mandatory deportation and did not advise him to consult an immigration lawyer. He testified that, had he known that as a result of his plea he would be placed into DHS custody and subjected to mandatory removal, he would not have entered the plea, but would have taken his case to trial. Appellant's trial counsel did not testify at the evidentiary hearing.

The postconviction court issued an order denying Appellant's motion for postconviction relief. While the court did not dispute that deportation was a " 'presumptively mandatory' consequence of [Appellant]'s plea," the court found that Appellant was not prejudiced by his counsel's failure to adequately advise Appellant on the deportation consequences of his plea. The court found that, based on the evidence in the record, Appellant had no chance of being acquitted at trial of the charges to which he pled no contest, and he therefore "would have been just as removable by immigration officials after a conviction after a jury trial as he was in light of a no contest plea." Because the court found that "it would have been objectively unreasonable to reject the State's plea offer," the court found that Appellant was not prejudiced by his trial counsel's failure to advise him on the deportation consequences of his plea, and the court denied Appellant's postconviction motion.

Analysis

"When considering a trial court's ruling on a rule 3.850 motion after an evidentiary hearing, we defer to the trial court's factual findings - provided that they are supported by competent, substantial evidence - but we review de novo the trial court's 'application of the law to those facts.' " Parenti v. State , 225 So.3d 949, 951 (Fla. 5th DCA 2017) (quoting Jennings v. State , 123 So.3d 1101, 1113 (Fla. 2013).

To prove ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient, and (2) the defendant was prejudiced by that deficient performance. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Where counsel could have easily determined that the defendant's plea would make him eligible for deportation, counsel is deficient under the first Strickland prong in failing to give the defendant correct and unequivocal advice regarding the deportation consequences of his plea. Padilla v. Kentucky , 559 U.S. 356, 368-69, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

The State agrees that, because Appellant would be subject to virtually certain deportation if he pleaded no contest, Appellant was entitled to unequivocal advice that his plea would result in deportation - advice he did not receive. Thus, the State acknowledges Appellant's counsel provided deficient performance.

On the second Strickland prong, "[i]n the context of guilty pleas, ... in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). "[T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla , 559 U.S. 356 at 372, 130 S.Ct. 1473, 176 L.Ed.2d 284.

In Lee v. United States , the Supreme Court analyzed what facts are required to adequately demonstrate "a reasonable probability that [the defendant] would have rejected the plea had he known that it would lead to mandatory deportation." --- U.S. ----, 137 S.Ct. 1958, 1967, 198 L.Ed.2d 476 (2017). Based on the deficient advice of his attorney, the defendant in Lee pled guilty and accepted a prison term of one year and one day, but later learned that, because he had pled guilty to an "aggravated felony," he would be deported after his prison sentence. Id. at 1963.

The Supreme Court held that it would not have been irrational for Lee to go to trial and risk additional prison time in order to hold onto some chance of avoiding deportation. Id. at 1969. The Court noted that, even where loss at trial is a virtual certainty, if a defendant views the consequences of losing at trial and pleading guilty as "similarly dire, even the smallest chance of success at trial may look attractive." Id. at 1966.

But for his attorney's incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly.... [I]f the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that "almost" could make all the difference.

Id. at 1968 (emphasis in original).

Appellant scored 17.4 points on his Criminal Punishment Code score sheet, and therefore likely risked no more than a year in county jail if found guilty by a jury. He presented uncontested testimony that he would have gone to trial but for his counsel's failure to inform that his plea would lead to certain deportation. Coupled with the limited additional consequence of a potential jury verdict of guilt, and even a slight possibility of an acquittal, we hold that there was a reasonable probability that he would have risked proceeding at trial to avoid mandatory deportation.

Appellant was therefore prejudiced by his trial attorney's failure to unequivocally advise him on the deportation consequences of his plea and was thus deprived of his right to effective counsel. We reverse the lower court's order denying Appellant's motion for postconviction relief and remand for a new trial.

REVERSED and REMANDED .

Kelsey, J., concurs; Winokur, J., concurs with opinion.

Winokur, J., concurring.

Alsubaie told the trial court-under oath-that he understood he could be deported as a result of his no-contest plea. He also swore that he read and understood the plea agreement, which likewise informed him that his plea "may result in deportation or expulsion from the United States." That consequence came to pass: two years after he entered the no-contest plea, the United States Department of Homeland Security informed Alsubaie that he was removable from the United States due to his convictions. In spite of the clear indication that Alsubaie was made well aware that he was facing deportation if he entered the plea, he moved to withdraw the plea on the ground that he was not properly advised that he was facing deportation.

Alsubaie can make this claim in the face of record evidence to the contrary by arguing that his lawyer had a duty to inform him of deportation consequences, separate from and in addition to the court's duty to inform him, and by alleging that it was insufficient to tell him that he may face deportation, when in fact he would face deportation.

In any event, Alsubaie is entitled to relief pursuant to Hernandez v. State , 124 So.3d 757 (Fla. 2012). In Hernandez , the court applied Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), to a Florida case. In Padilla , the Supreme Court ruled that a defendant may withdraw a guilty plea if counsel did not advise him that the plea would subject him to automatic deportation. 559 U.S. at 360, 130 S.Ct. 1473. But unlike the defendant in Padilla , a defendant in Florida would have been advised by the trial court during the plea colloquy that a plea "may subject him or her to deportation." Fla. R. Crim. P. 3.172(c)(8) (2014). Thus, even if counsel failed to advise the defendant of deportation consequences, a Florida court was required to give this advice as a part of the plea colloquy.

However, the court in Hernandez ruled that the plea colloquy, even one complying with the 2014 version of Rule 3.172(c)(8), was insufficient to remove prejudice resulting from counsel's failure to advise the defendant about deportation, when deportation consequences were "truly clear." Hernandez , 124 So.3d at 763. In other words, the court's advice required by the rule constituted an "equivocal warning" because it stated that the defendant "may" be deported, which was insufficient in cases where deportation was in fact "presumptively mandatory" under federal law. Id.

Under this standard, it appears that Alsubaie's counsel was deficient for failing to inform him of the fact that his deportation was "presumptively mandatory" under federal law. Moreover, neither his sworn testimony that he was aware that he may be deported, nor his acknowledgement that he signed and understood an agreement informing him of the same, was sufficient to overcome counsel's deficiency.

But for Hernandez , I would affirm the trial court's ruling because the record reflects that Alsubaie was told explicitly that he could be deported, regardless of what counsel told him or failed to tell him. Florida courts often reject postconviction claims that counsel misadvised defendants, when the alleged misadvice is inconsistent with the defendant's sworn answers given in a plea colloquy. See, e.g., La Page v. State , 29 So.3d 1168, 1170 (Fla. 1st DCA 2010) (rejecting the defendant's claim that counsel misadvised him regarding his potential sentence because the plea colloquy showed that trial court "clearly informed Appellant of the potential sentence he was facing"); Lamkin v. State , 215 So.3d 640, 641 (Fla. 5th DCA 2017) (holding that the trial court's "express statements during the plea colloquy that it makes no promises as to the sentence ... can refute a defendant's claims that, under the advice of counsel, the defendant entered a plea believing he would receive a particular sentence"). It is therefore difficult to see how any lack of advice from Alsubaie's counsel about deportation prejudiced him, in light of evidence that he understood that he may be deported. And it is difficult to understand how advice that he may be deported is insufficient merely because federal law provides that his deportation was "presumptively mandatory."

I am confident, however, that this issue will not continue to arise. Alsubaie entered his plea in 2014. In 2015, Rule 3.172(c)(8) was substantially amended. In re Amendments to Fla. Rules of Criminal Procedure , 188 So.3d 764 (Fla. 2015). The subdivision no longer requires merely a brief warning that a plea "may subject" the defendant to deportation, which it did when Alsubaie entered his plea. The subdivision now requires the court to advise the defendant to consult with counsel regarding deportation consequences, and to allow a reasonable amount of time to permit the defendant to consider the plea in light of deportation consequences. Fla. R. Crim. P. 3.172(c)(8) (2018). See Goddard v. State , 217 So.3d 1105, 1110 n.2 (Fla. 2d DCA 2017) (recognizing the effect of rule amendment). I have not found any cases where a defendant was permitted to withdraw a plea pursuant to Hernandez where the court read the defendant the post-2015 rule. One may hope that judges giving advice pursuant to the new rule have adequately informed defendants of deportation consequences, and that courts will no longer be compelled to order the withdrawal of guilty pleas as in this case.

      Had Appellant been found guilty by a jury, the court could have sentenced Appellant to a harsher state prison sentence, if it made written findings that a nonstate sentence would present a danger to the community. See § 775.082(10), Florida Statutes (2017). However, such a finding was highly unlikely given the nature of the charges. See Jones v. State , 71 So.3d 173, 176 (Fla. 1st DCA 2011) (holding that a state sentence was improper where "the record does not suggest that imprisonment within the state prison system rather than the county jail would better deter him from" repeating the charged conduct).

      See Com. v. Padilla , 253 S.W.3d 482, 483 (Ky. 2008), rev'd and remanded sub nom. Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

      Since the State never introduced trial counsel's testimony at the evidentiary hearing, we are left only with Alsubaie's testimony that counsel told him nothing about deportation consequences of the plea.


text:
    Charles K. DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2985
    District Court of Appeal of Florida, First District.
    April 29, 2019
    Andy Thomas, Public Defender, and Robin B. Rogers, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Charles K. Dawson, challenges his judgment and sentence for failure of sexual predator to properly register residency after release from custody. He argues the trial court erred in denying his requests: (1) for a special jury instruction on the maintenance of video surveillance; and (2) to remove from the jury instructions references to "sexual predator." We affirm the second issue without discussion based on our prior decision in Johnson v. State , 842 So.2d 228 (Fla. 1st DCA 2003). For the reasons that follow, we also affirm the first issue.

At trial, Appellant contended that following his release from custody he entered the lobby of the sheriff's office twice in an attempt to properly register. A witness from the Bay County Sheriff's Office indicated the registration lobby had video surveillance and would have been able to show if Appellant had been in the office as he claimed. However, the video was not required to be maintained.

At trial, defense counsel proposed the following instruction:

Members of the jury, the parties have agreed to certain facts. You must accept these facts as true.
1. Charles Kevin Dawson has been convicted as a sexual predator.
2. Video surveillance of the Bay County Sheriff's Office is only maintained for 30 days and any video that existed was not preserved in order to view in this case.

The trial court declined to give this proposed instruction and instead gave the standard instruction on the defense to the crime of failure to register:

It is a defense to the crime of failure to register as a sexual predator, that Charles Dawson attempted to register as required by law, but was misinformed or otherwise prevented from timely registering by the office of the sheriff.

Generally, standard jury instructions are preferred over special instructions. See Stephens v. State , 787 So.2d 747, 755 (Fla. 2001). But, a defendant has a right to a special instruction on the law applicable to his defense theory where trial evidence supports the theory. Id. In order to be entitled to a special jury instruction, a defendant must prove: "(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing." Id. at 756.

The trial court did not abuse its discretion in denying the proposed special instruction. See Kervin v. State , 195 So.3d 1181, 1182 (Fla. 1st DCA 2016) ("We review the trial court's decision to give or withhold a proposed jury instruction for an abuse of discretion."). While Appellant's proposed instruction was supported by the evidence, Appellant failed to establish the standard instruction did not adequately cover his defense. Appellant's defense was that he attempted to, but was prevented from properly registering and that the video, destroyed by the sheriff's office, would have been evidence of his attempt to register. While Appellant's proposed instruction would certainly have provided the jury with greater detail about his defense, the standard jury instruction permitted the jury to consider these details and consider the circumstances of the case. Furthermore, the proposed instruction was a statement of stipulated fact rather than one of law. See § 918.10(1), Fla. Stat. (providing that, after closing arguments, the court charge the jury "only on the law of the case").

AFFIRMED .

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Alain BARUCHEL, Petitioner, v. John Richard DALTON a/k/a John R. Dalton and Wendi Cassand, Respondents.
    Case No. 5D18-3881
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019 Rehearing Denied April 29, 2019
    Alain Baruchel, Montreal, Quebec, Canada, pro se.
    John Richard Dalton, Daytona Beach, pro se, and Wendi Cassand, Boca Raton, pro se.
   PER CURIAM.

We issued a Spencer show cause order directing Petitioner to demonstrate why he should not be barred from any future pro se filings in this Court and why he should not be prohibited from any telephonic and/or in-person communications with Court Staff. We conclude that he is abusing the judicial process and Court Staff and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources and protect Court Staff, we prohibit Petitioner from filing with this Court any further pro se pleadings concerning Volusia County Seventh Judicial Circuit case numbers 2017-30371-FMCI, 2017-30481-FMCI, 2018-33323-FMCI. The Clerk of this Court is directed not to accept any further pro se filings concerning these cases and not to accept any telephone or in-person communications. Any further pleadings regarding these cases will be summarily rejected by the Clerk, unless they are filed by a member in good standing with The Florida Bar. See Isley v. State, 652 So. 2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough.").

FURTHER PRO SE FILINGS PROHIBITED.

WALLIS, LAMBERT and EISNAUGLE, JJ., concur.

      State v. Spencer, 751 So. 2d 47 (Fla. 1999).


text:
    Angela Brant BATHELEMY v. DOLGENCORP, LLC d/b/a Dollar General
    2019-CC-0310
    Supreme Court of Louisiana.
    April 29, 2019
    ON SUPERVISORY WRITS TO THE 1ST CITY COURT, PARISH OF ORLEANS
    Writ denied.
    Crichton, J., would grant and assigns reasons.
   Genovese, J., would grant this writ for the reasons assigned by Judge Jenkins.

Crichton, J., would grant and assigns reasons.

I would grant the writ application filed by Dolgencorp, LLC d/b/a Dollar General for reasons assigned in Judge Jenkins' dissent, which Judge Dysart also joined.


author: JOHNSON, C.J., would grant.

text:
    BRUNSWICK SEAFOOD, INC. d/b/a Dularge Seafood Processing and Lenue Green v. WILLIAMS LAW GROUP, LLC; Smitko Law, A Professional Law Corporation; The Law Offices of Jerri G. Smitko, APLC ; Naquin & Carmouche, LLC ; Naquin Law Firm, LLC ; John J. Bean CPA, Inc. ; Conrad S.P. Williams; David Ardoin; Matthew D. Ory; Jerri G. Smitko ; Catherine Gauthier and John J. Bean
    NO. 2019-C-0335
    Supreme Court of Louisiana.
    April 29, 2019
    Writ denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant and assigns reasons.

GENOVESE, J., would grant this writ for the following reasons:

This is a summary judgment legal malpractice case. Both sides have competing, contradictory, and irreconcilable expert opinions and reports. When there are two competing experts with opposing views, the fact finder must make the determination as to whom to rely upon. This requires a review and weighing of the facts and evidence presented. A trial court judge is not permitted to weigh evidence or judge credibility in a summary judgment proceeding. That is precisely what occurred in this case. There are genuine issues of material fact presented which prohibit the grant of summary judgment. I would grant this writ, reverse the lower courts' grant of summary judgment, deny defendants' motion for summary judgment, and remand for further proceedings.


author: PER CURIAM

text:
    IN RE: Connie M. EASTERLY a/k/a Connie M. Eversberg
    NO. 2019-B-0467
    Supreme Court of Louisiana.
    May 6, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent was arrested and charged with driving under the influence of alcohol. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Connie M. Easterly, a/k/a Connie M. Eversberg, Louisiana Bar Roll number 26278, be suspended from the practice of law for a period of one year and one day, retroactive to January 8, 2019, the date of her interim suspension.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    IN RE: Evelyn S. ADAMS
    NO. 2019-OB-0624 NO. 2019-B-0625
    Supreme Court of Louisiana.
    May 1, 2019
    ORDER
   Considering the Joint Petition for Transfer to Active Status and the Joint Petition for Interim Suspension filed by respondent, Evelyn S. Adams, and the Office of Disciplinary Counsel,

IT IS ORDERED that Evelyn S. Adams, also known as Martha Evelyn Shahan Adams, Louisiana Bar Roll number 27169, be and she hereby is reinstated to active status pursuant to Supreme Court Rule XIX, § 22(G), subject to the condition that she must comply with all terms of her May 10, 2018 recovery agreement with the Judges and Lawyers Assistance Program and such other conditions as may be imposed upon her by the Judges and Lawyers Assistance Program. The Office of Disciplinary Counsel shall monitor respondent's compliance with her recovery agreement and notify this court of any violation, which may be grounds for immediately returning respondent to disability inactive status.

IT IS FURTHER ORDERED that the Motion to Seal Exhibits Attached To Joint Petition for Transfer to Active Status be and hereby is granted.

IT IS FURTHER ORDERED that respondent be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court.


text:
    IN RE: Zachary Ryan MOFFETT
    NO. 2019-B-0627
    Supreme Court of Louisiana.
    May 6, 2019
    ORDER
   Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Zachary Ryan Moffett, Louisiana Bar Roll number 35526, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent's clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

NEW ORLEANS, LOUISIANA, this _____ day of ___________________, 2019.


text:
    IN RE: Iain A. DOVER
    NO. 2019-B-0401
    Supreme Court of Louisiana.
    May 6, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent engaged in an inappropriate verbal exchange with opposing counsel in open court. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent violated Rule 3.5(d) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Iain A. Dover, Louisiana Bar Roll number 33540, be publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


author: PER CURIAM:

text:
    STATE of Louisiana v. Torbio SANTACRUZ
    No. 2019-KK-0328
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. We vacate the district court's ruling to the extent it ordered defendant to appear in court for periodic visits. After conducting a contradictory hearing in accordance with La.C.Cr.P. art. 648(B)(1), the district court determined that the incompetent defendant is unlikely in the foreseeable future to be capable of standing trial. Therefore, we order the district court to either order the defendant released or remanded to the custody of the Louisiana Department of Health, in accordance with La.C.Cr.P. art. 648(B)(3).


text:
    STATE of Louisiana v. Ellis ELLISON
    No. 2018-KP-2083
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Writ granted. The district court's grant of an out-of-time appeal and appointment of appellate counsel is vacated for failure to comply with State v. Counterman , 475 So.2d 336 (La. 1985) and La.C.Cr.P. arts. 924 - 930.7. The district court is directed to reconsider whether the applicant will be granted an out-of-time appeal after affording the State the opportunity to respond to the application. See La.C.Cr.P. art. 927(A). The matter is remanded for further proceedings consistent with this ruling.

GUIDRY, J., recused.

HUGHES, J., would deny.


author: HUGHES, J., would grant.

text:
    William P. GASPARD and Jerold Edward Knoll v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2019-C-0167
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE 19TH JUDICIAL DISTRICT COURT FOR THE PARISH OF EAST BATON ROUGE
    Denied.
   HUGHES, J., would grant.

CRICHTON, J., would grant.

GENOVESE, J., would grant and assigns reasons.

GENOVESE, J., would grant this writ for the following reasons:

This is a motor vehicle violation case. Though this issue may seem minor to some, it is of great significance to others. After all, little cases can make big law. Plaintiff, Mr. Knoll, is a part-time rancher who operates a small farm in Marksville, Louisiana. Mr. Knoll purchased a livestock trailer at an auction in Oklahoma to use in his cattle operation. Mr. Knoll and his employee, Mr. Gaspard (also a plaintiff in this case), traveled to Oklahoma to pick up the trailer. Mr. Knoll also purchased a farm truck to tow the trailer back to Louisiana. The farm truck broke down in Texas, requiring plaintiffs to leave it and the livestock trailer behind. The following day, Mr. Gaspard returned to Texas with a separate truck and trailer to retrieve the disabled farm truck and livestock trailer.

On the return trip from Texas to the Knoll ranch in Marksville, Louisiana, Mr. Gaspard was stopped by a Louisiana State Trooper on Interstate 49 in or near Shreveport, in Caddo Parish, Louisiana, for not wearing a seatbelt, and was issued a citation therefor. Additionally, the officer issued two warnings to Mr. Knoll (though not present) as the registered owner of the truck for (1) failure to pay a UCR fee in violation of 49 UCR 392.2 and (2) for operating a commercial motor vehicle in interstate commerce without a USDOT Registration in violation of 49 CFR 392.9b(a).

Mr. Knoll and Mr. Gaspard sought administrative review before the administrative law judge ("ALJ"), arguing that the truck was not a commercial vehicle as defined in 49 CFR 390.5 and that the truck fell under the Covered Farm Vehicle Exemption set forth in 49 CFR 390.5. The ALJ affirmed the violations, and plaintiffs sought further review in the district court, which affirmed the ALJ. In a split 2-1 decision, a majority panel of the court of appeal affirmed the lower courts with Judge Welch dissenting. Plaintiffs have filed a writ application with this Court, which the majority has denied. The seatbelt violation is not at issue herein.

The majority's denial of this writ is erroneous for two reasons: (1) the vehicle was not engaged in interstate commerce; and (2) the farm vehicle was exempt. First, there is very little jurisprudential interpretation of what constitutes interstate commerce as set forth in 49 CFR 390.5. Regardless, Mr. Knoll operates a cattle ranch solely within Louisiana on a part-time basis and does not sell cattle to any farmers outside Louisiana. At the time Mr. Gaspard was stopped in Louisiana, he was not engaged in interstate commerce (such as selling cattle on the side of the road in Oklahoma or Texas or anywhere else outside Louisiana). Second, the farm vehicle qualified for an exemption based on occasional transportation use and mileage.

The undisputed facts in this case (i.e., that Mr. Gaspard was retrieving a disabled trailer) clearly constitute occasional use, as Mr. Knoll does not engage in the sale of cattle outside Louisiana. Mr. Knoll's vehicle left the state for the sole purpose of retrieving a disabled trailer (purchased out of state) for his cattle farm in Louisiana. Thus, Mr. Knoll was not doing business or engaged in any commerce (by any definition) while retrieving his disabled truck and trailer. Crossing state lines in an isolated incident to buy an item for use in one's exclusively intrastate business does not constitute commerce.

Finally, I agree with Judge Welch's dissent that Mr. Knoll's vehicle qualified for the farm vehicle exemption set forth in 49 CFR 390.5, because at the time of the traffic stop, the Knoll vehicle was being used within 150 air miles of the farmer's farm. The traffic stop was made in Caddo Parish, in or near Shreveport, Louisiana. Mr. Knoll's farm is located in Marksville, Louisiana. The state offered no proof whatsoever that the distance between Shreveport and Marksville exceeded 150 air miles, perhaps for the simple reason that it does not, in fact, exceed 150 air miles. An air mile is longer than a statute or land mile. An air mile has a distance of 6,080 feet; whereas, a statute or land mile has a distance of 5,280 feet. According to the Federal Motor Carrier Safety Administration website, a statute or land mile comprises 87% of an air mile. Shreveport is approximately 135 air miles from Marksville, and, thus, the alleged violation falls within the 150 air-mile exemption.

Consequently, and for the reasons aforementioned, I would reverse the ALJ and the lower courts and dismiss the Code of Federal Regulations violations.


text:
    STATE of Louisiana v. Robert Lee HEARD, Jr.
    NO. 2018-K-2013
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    STATE of Louisiana v. Patricia HAMPTON
    NO. 2019-K-0287
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    STATE of Louisiana v. Warren C. REAVIS, III
    NO. 2018-KH-1575
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    Tricia ARMAND v. Michael DUCOTE, et al.
    NO. 2019-CC-0383
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    STATE of Louisiana v. Larry MOSES
    NO. 2018-KH-1598
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Michael BAUGH
    NO. 2019-K-0109
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.
   GUIDRY, J., would grant.


text:
    Shannon ALEXANDER v. Darrell VANNOY, Warden, Louisiana State Penitentiary
    NO. 2018-KH-1556
    Supreme Court of Louisiana.
    April 29, 2019
    Denied. Applicant shows no error by the lower courts, and has previously exhausted his right to state collateral review. See State v. Alexander, 18-0267 (La. 12/17/18), 259 So.3d 336.


text:
    STATE of Louisiana v. Charles CARTER
    NO. 2018-K-1817
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    CITY OF BATON ROUGE v. JOHNSON, Paul Michael Corp. Sole dba Paul Michael Johnson
    NO. 2019-OC-0407
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana v. Billy Joe HOWARD
    NO. 2018-KO-2034
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.
   GUIDRY, J., recused.


text:
    Bruce Reid JOHNSON v. NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, Skid Marks Tires & Auto
    NO. 2019-CC-0379
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    Abdullah MUHAMMAD v. Darrel VANNOY, Warden Louisiana State Penitentiary
    NO. 2018-KH-1047
    Supreme Court of Louisiana.
    April 29, 2019
    Denied. Applicant has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing. See State ex rel. Muhammad v. State, 16-1573 (La. 1/9/18), 232 So.3d 543.


text:
    Castadell RUFFIN v. STATE of Louisiana
    NO. 2018-KH-1048
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    Ronald NERO v. ALLIED WASTE SERVICES, et al.
    NO. 2019-C-0384
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    Liza EDMOND v. Ronney GUILLORY, et al.
    NO. 2019-C-0386
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    STATE of Louisiana v. Charles CARTER
    NO. 2018-K-1836
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    STATE of Louisiana v. Eugene FRAZIER, Jr.
    NO. 2018-KH-1068
    Supreme Court of Louisiana.
    April 29, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Frazier v. State, 15-1856 (La. 11/15/16), 206 So.3d 177.


text:
    STATE of Louisiana v. Anthony CINQUEMANO
    NO. 2018-K-1872
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    STATE of Louisiana v. Robert Lee HEARD, Jr.
    NÒ. 2018-KO-2022
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    STATE of Louisiana v. Wilbert GREEN
    NO. 2019-KK-0646
    Supreme Court of Louisiana.
    April 29, 2019
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Rickey OVERSTREET
    NO. 2019-KO-0235
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.
   GUIDRY, J., recused.


text:
    STATE of Louisiana v. Mario LEDET
    NO. 2018-KH-1134
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    STATE of Louisiana v. Wesley RICKS
    NO. 2018-KH-1155
    Supreme Court of Louisiana.
    April 29, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Ricks v. State, 16-0229 (La. 8/4/17), 222 So.3d 718.