author: Wolf, J.

text:
    Scott Alan KLINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1706
    District Court of Appeal of Florida, First District.
    June 7, 2019 Rehearing Denied July 11, 2019
    Andy Thomas, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Wolf, J.

Appellant challenges his judgments and sentences for 10 counts of child pornography. He argues it is unclear whether the trial court used the correct standard when it denied his motion for new trial. We find appellant failed to preserve this issue and affirm.

After the jury returned its verdict, appellant filed a motion for new trial raising a number of grounds. Some grounds challenged rulings the judge made during trial, such as the denial of appellant's motion for judgment of acquittal. Appellant also alleged the verdict was contrary to the weight of the evidence. The trial court denied the motion stating, "[t]he motion for new trial is denied for reasons stated on the record during trial." Appellant did not object or seek clarification.

On appeal, appellant notes there was no discussion during trial of his argument that the verdict was contrary to the weight of the evidence. Thus, he argues it is unclear whether the trial court applied the correct legal standard to that portion of his motion. He suggests the trial court may have applied the sufficiency-of-the-evidence standard instead. The State argues the court was merely referencing the grounds in the motion for new trial that were addressed on the record, and there is no indication that the court applied the wrong standard when considering whether the verdict was contrary to the weight of the evidence.

"Defendants have the right to have the trial judge evaluate and weigh the evidence independently of the jury's findings to determine whether the jury verdict was contrary to the weight of the evidence." McCloud v. State , 150 So. 3d 822, 823 (Fla. 1st DCA 2014) (quoting Kelley v. State , 16 So. 3d 196, 197 (Fla. 1st DCA 2009) ).

This court has reversed where "the trial court's findings indicate that the court may have applied the sufficiency of the evidence standard instead of the weight of the evidence standard." Spear v. State , 860 So. 2d 1080 (Fla. 1st DCA 2003) (emphasis added). However, this court has never expressly discussed whether this error must be preserved or whether it constitutes fundamental error.

Perhaps if a trial court expressly applied the wrong standard to a claim that the verdict was contrary to the weight of the evidence, such an error might be found to be fundamental. See, e.g. , Velloso v. State , 117 So. 3d 903, 905-06 (Fla. 4th DCA 2013) (reversing where the trial court explicitly refused to weigh the evidence in response to a motion for new trial, stating its only role was to review for the legal sufficiency of the evidence).

However, where it is unclear whether the trial court used the wrong standard, we find the potential that the trial court erred does not reach the level of fundamental error.

To remand for clarification now when counsel had the opportunity to ask for clarification but simply failed to do so would constitute a waste of judicial resources. See Fla. Emergency Physicians-Kang and Associates, M.D., P.A., v. Parker , 800 So. 2d 631, 636 (Fla. 5th DCA 2001) ("It is the function of the appellate court to review errors allegedly committed in the trial court, not to entertain for the first time on appeal, issues which the complaining party could have, and should have, but did not, present to the trial court."). Had the trial court been apprised of the ambiguity in its ruling, it could have easily taken care of the potential problem during the hearing on the motion for new trial.

Because appellant failed to preserve this issue for appeal, we AFFIRM .

Osterhaus and Jay, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Montrell WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1188
    District Court of Appeal of Florida, Third District.
    Opinion filed June 12, 2019
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before SALTER, FERNANDEZ and LINDSEY, JJ.
   PER CURIAM.

The defendant, Montrell Williams, appeals the trial court's final judgment of conviction and sentence for burglary, trespass, theft, and criminal mischief. At the defendant's jury trial, Florida Standard Jury Instruction (Criminal) 3.7, "Plea of Not Guilty; Reasonable Doubt; and Burden of Proof," was not given to the jury, nor was it included in the written jury instructions. The State has confessed error on this point, as it is fundamental error for a trial court to fail to instruct the jury on the contents of Standard Jury Instruction 3.7. Smith v. State, 260 So. 3d 578 (Fla. 3d DCA 2019) ("[T]he trial court's failure to instruct the jury as to Florida Standard Jury Instruction (Criminal) 3.7 Plea of Not Guilty; Reasonable Doubt, and Burden of Proof, or any similar instruction, constituted fundamental error."). Accordingly, we reverse the defendant's conviction and sentence and remand for a new trial.

Reversed and remanded.


author: Wetherell, J.

text:
    Tamika REESE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3108
    District Court of Appeal of Florida, First District.
    June 12, 2019
    Tamika Reese, pro se, Appellant.
    Ashley Moody, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   Wetherell, J.

Tamika Reese appeals the order summarily denying her motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

Background

Reese was convicted of multiple felony offenses arising out of a home invasion robbery during which Reese shot one victim and her co-defendant attacked another victim. Reese was sentenced to life in prison as a prison releasee reoffender (PRR) for burglary and concurrent sentences ranging from time-served to 25 years for the other offenses. Reese's judgment and sentence were per curiam affirmed on direct appeal. See Reese v. State , 229 So. 3d 323 (Fla. 1st DCA 2016) (table).

Reese filed a timely rule 3.850 motion in which she raised six claims of ineffective assistance of counsel and one claim of cumulative error. The trial court summarily denied the motion on the merits. Reese filed a timely motion for rehearing, which the trial court denied. This appeal followed.

Applicable Legal Standard

To prove a claim of ineffective assistance of counsel, the defendant must establish that (1) defense counsel's performance was deficient and (2) the deficient performance prejudiced the defendant. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, the defendant must overcome the strong presumption that counsel's conduct was reasonable and show that the conduct fell below an objective standard of reasonableness based on prevailing professional standards. Id. at 688-89, 104 S.Ct. 2052 ; see also id. at 687, 104 S.Ct. 2052 ("[The deficient performance prong] requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment."). To establish prejudice, the defendant must show a reasonable probability-i.e., a probability sufficient to undermine confidence in the outcome-that the result of the proceeding would have been different but for counsel's unprofessional errors. Id. at 694, 104 S.Ct. 2052 ; see also id. at 687, 104 S.Ct. 2052 ("[The prejudice prong] requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.").

Analysis

We fully agree with the trial court's analysis of claims 1, 3, 6, and 7, and we affirm the denial of those claims without further comment. We affirm the denial of the other claims for the reasons that follow.

Claim 2

In claim 2, Reese alleged that her trial counsel was ineffective for not presenting mitigating evidence at trial . The trial court correctly found this claim to be refuted by the record (based on a colloquy between the court and Reese at trial) and legally insufficient (because "[m]itigating evidence is not admissible at trial, only at sentencing").

In her motion for rehearing, Reese clarified that this claim also alleged that her counsel was ineffective for not presenting mitigating evidence at sentencing . Even with this clarification, the claim was properly denied because Reese cannot show prejudice since the trial court was required to impose a life sentence for the burglary under the PRR statute irrespective of any mitigating evidence that might have been presented. See Ellington v. State , 96 So. 3d 1131, 1131-32 (Fla. 1st DCA 2012) ("It is well-settled that, once the State proves by a preponderance of the evidence that a defendant qualifies as a [PRR], the trial court must sentence the defendant in accordance with the provisions of section 775.082(9), Florida Statutes. A trial court does not have discretion to depart from the sentence mandated by section 775.082(9), and the refusal to impose the mandatory minimum sentence is error as a matter of law.") (citations omitted).

Claim 4

In claim 4, Reese alleged that her trial counsel was ineffective for not asking the victim about his pending criminal charges to show that he had a motive to testify that his attacker was a woman (Reese) as the State claimed, and not a man as he originally told the police. The trial court denied this claim, concluding that counsel could not have attacked the victim's credibility with the pending charges.

Contrary to the trial court's reasoning, "when charges are pending against a prosecution witness at the time he testifies, the defense is entitled to bring this fact to the jury's attention to show bias, motive or self-interest." Larkins v. State , 655 So. 2d 95, 99 (Fla. 1995) (quoting Torres-Arboledo v. State , 524 So. 2d 403, 408 (Fla. 1988) ). However, even if counsel was deficient for not asking the victim about his pending charges, this claim was properly denied because Reese cannot establish prejudice.

Although trial counsel did not impeach the victim with his pending charges, counsel extensively cross-examined the victim about his drug use at the time of the offense (he admitted to smoking marijuana the night before the attack) as well as his original description of his attacker as a man (he explained that he mistook the attacker for a man because she was smaller than the co-defendant and was wearing men's clothing), and counsel emphasized the victim's credibility issues during closing argument. Additionally, counsel made the jury aware of the victim's pending charges by eliciting testimony from a police officer about the victim's arrest for drug offenses based on evidence found during the officer's investigation of this case, and counsel used this fact in closing argument to further attack the victim's credibility. Under these circumstances, Reese cannot show that the outcome of the case would have been any different had trial counsel asked the victim about his pending charges.

Claim 5

In claim 5, Reese alleged that her trial counsel was ineffective for failing to argue that her convictions for aggravated battery with a firearm (count V) and battery (count VI) were barred by double jeopardy. The trial court denied this claim as "meritless" because the offenses contained different elements. We agree that this claim is meritless, but for different reasons.

The record reflects that counts V and VI were based on different victims: count V was based on the victim shot by Reese whereas count VI was based on the victim attacked by her co-defendant for which Reese was convicted as a principal. It is axiomatic that multiple battery convictions-whether simple or aggravated-are legally permissible where multiple victims are battered. See Williams v. State , 106 So. 3d 964, 966 (Fla. 3d DCA 2013). Accordingly, Reese cannot show deficient performance in her counsel's failure to argue that her dual battery convictions violate double jeopardy. See Teffeteller v. Dugger , 734 So. 2d 1009, 1023 (Fla. 1999) ("Trial counsel cannot be deemed ineffective for failing to raise meritless claims ....").

Conclusion

For the reasons stated above, we affirm the order denying Reese's rule 3.850 motion.

AFFIRMED .

Ray and Winsor, JJ., concur.

      Burglary of a dwelling with person assaulted (count I), robbery (count II), attempted armed robbery with a firearm (count III), false imprisonment with a firearm (count IV), aggravated battery with a firearm (count V), battery (count VI), and possession of a firearm by a convicted felon (count VII).

      Specifically, counsel argued:
      Look at [the victim's] situation. [He] is a drug dealer. He's got marijuana not just not just in his possession, he's got it up in his apartment and he sells it.
      In fact, [the police] charged him with possession of contraband for the purpose of sale. He's a defendant. That case is still pending. Look what he's doing. [He] is doing the same thing as [the co-defendant]. He's trying to line up with the State, get his story where it kind of makes the State's case against [Reese] easier.....
      * * *
      [The victim] feels like he can come in here and get out of the mess that he's in to deal with these pending charges, to stay out of jail or state prison, if he gets his story straight that it matches up with the prosecution in this case, which is built almost entirely ... on the testimony of [the co-defendant].


author: Per Curiam.

text:
    Brent MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2726
    District Court of Appeal of Florida, First District.
    June 12, 2019
    Brent Miller, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This is an appeal from an order that was the subject of a prior appeal in case number 1D17-3773, which resulted in an affirmance without opinion. Miller v. State , 1D17-3773, 2019 WL 764218 (Fla. 1st DCA Feb. 21, 2019) (table). Since Appellant is not entitled to a second review of the same order, this duplicative appeal is dismissed.

DISMISSED .

Ray, Bilbrey, and Jay, JJ., concur.


text:
    John DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2055
    District Court of Appeal of Florida, First District.
    June 12, 2019
    John Dixon, pro se, Appellant.
    Ashley Moody, Attorney General, for Appellee.
   Per Curiam.

The sole issue on appeal is Appellant's entitlement to jail credit. Because he has served his sentence, the issue of credit is moot, and we must dismiss. Toomer v. State , 895 So. 2d 1256, 1256-57 (Fla. 1st DCA 2005).

DISMISSED .

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


author: BADALAMENTI, Judge.

text:
    Gabriel Jimenez CONTRERAS, a/k/a Yonoto Ortiz Flores, DOC #Y30905, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4989
    District Court of Appeal of Florida, Second District.
    Opinion filed June 19, 2019
    Joshua Faett of The Faett Firm, Naples, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Gabriel Jimenez Contreras appeals the trial court's order revoking his probation and sentencing him to sixty months' incarceration. We find no error with the trial court's determination that Contreras violated conditions 1, 3, and 9 of his order of probation. However, we agree with Contreras's argument that the trial court's finding that he willfully violated condition 5 of his probation by committing new law offenses is not supported by competent substantial evidence. We further agree that the trial court abused its discretion in revoking his probation based on his failure to pay the costs of supervision without first finding that he had the ability to pay those costs. Because the trial court relied on both proper and improper grounds for revocation and we cannot determine whether the court would have revoked Contreras's probation based solely on the remaining violations, we reverse and remand with instructions.

During Contreras's term of probation for aggravated assault with a deadly weapon, the State filed an amended affidavit of violation of probation (VOP) alleging that he violated several conditions of his term of probation. At the hearing on the violations, the State offered the testimony of a probation officer for Collier County. The probation officer was not Contreras's original probation officer and did not file the VOP affidavits. The probation officer testified based on records maintained during the probation office's supervision of Contreras. The State also offered, and the court admitted, Contreras's order of probation as evidence.

As will be explained in detail below, Contreras testified in his defense, admitting that he committed some of the violations and offering explanations for other charged violations. At the conclusion of the hearing, the trial court found that the State proved by a preponderance of the evidence that he committed every violation alleged in the amended VOP affidavit. It revoked his term of probation and sentenced him to sixty months' imprisonment with credit for time served. Contreras timely appealed from the order revoking his probation.

To trigger the revocation of probation, the State must prove by the greater weight of the evidence that the probationer willfully and substantially violated the terms of probation. Robinson v. State, 907 So. 2d 1284, 1286 (Fla. 2d DCA 2005). We review the trial court's finding of a willful and substantial violation for competent substantial evidence. Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013). The trial court's decision to revoke probation is reviewed for an abuse of discretion. Id. at 623.

Condition 5 of Contreras's order of probation required him to "live and remain at liberty without violating any law." The State's amended VOP affidavit alleged that he violated this condition five times by committing five new criminal offenses in California. Specifically, it alleged that he was arrested for the criminal offenses of DUI (twice), failure to appear, illegal entry, and violation of an injunction. At the hearing, Contreras testified that he was arrested in California and charged with driving under the influence, failure to appear, and illegal entry. He admitted to pleading to those charges, but he did not specify whether he pleaded guilty or no contest to those charges. He admitted that he received additional charges for driving under the influence and violation of an injunction on a different date and pleaded to those charges as well. Again, he did not specify how he pleaded. His former probation officer also testified, after reviewing his file, that "[h]e also violated ... condition number 5, I believe, four separate times with new charges in California." (Emphasis added.)

At bottom, Contreras did not testify, and the State did not offer any proof, that Contreras committed or was convicted of any of the new law offenses. Contreras was not offered the opportunity to explain the charges. The trial court nonetheless found that Contreras willfully and substantially violated condition 5 of his probation five times for those new law charges.

On appeal, Contreras argues that his testimony that he was arrested for and "pleaded" to the charges does not constitute competent substantial evidence that he committed the new law violations. We agree. First, we note that a probationer need not be convicted of an unlawful act before the court may revoke his probation on the basis that he committed a new law offense. See Maselli v. State, 446 So. 2d 1079, 1080 (Fla. 1984). That is, although a conviction is clearly a sufficient basis for revocation of probation, the State need only prove by a preponderance of the evidence that the probationer committed the unlawful act. Id. However, "it is improper to revoke probation solely on proof that the probationer has been arrested." Hodges v. State, 920 So. 2d 158, 160 (Fla. 2d DCA 2006) (quoting Robinson, 907 So. 2d at 1286 ). And evidence that a probationer entered a no contest plea to a new charge, without more, is similarly insufficient to sustain a revocation of probation. See id. Specifically, "[a] probationer who enters a plea of nolo contendere to a new law violation is entitled to an opportunity in a probation revocation proceeding to be heard on whether he or she is guilty of the charge to which he or she pleaded nolo contendere." Id. at 159-60 ; cf. Maselli, 446 So. 2d at 1080 (holding that a conviction imposed after a plea of nolo contendere is a sufficient basis for revoking a term of probation).

Here, the State's evidence established only that Contreras was arrested for new charges. Contreras did not specify if he pleaded guilty or no contest to any of those charges. Further, he was not offered an opportunity to be heard on whether he committed the charges for which he was arrested and entered those pleas. See Hodges, 920 So. 2d at 159-60 ; Sharpston v. State, 895 So. 2d 1225, 1226 (Fla. 2d DCA 2005) ("Not once was Sharpston asked whether he actually committed the crime."). Simply stated, there is no record evidence that Contreras committed the new law offenses he was charged to have committed. We simply do not know on this record if Contreras pleaded guilty or no contest, whether the pleas resulted in convictions, or even if he committed those new law violations. Accordingly, we agree with Contreras that the State's evidence was insufficient to support the trial court's findings that he violated his probation by violating condition 5 five times. See Hodges, 920 So. 2d at 160 ; Sharpston, 895 So. 2d at 1226.

The trial court also found that Contreras willfully and substantially violated condition 2 of his terms of probation by failing to pay the costs of supervision. The State's evidence established that Contreras was employed at the time of the violation and was in arrears on his payments for the costs of supervision. That said, "testimony that a probationer is in arrears on the costs of supervision but is employed is insufficient to prove a willful violation of probation." Sankey v. State, 194 So. 3d 549, 550 (Fla. 2d DCA 2016). Indeed, "[b]efore a probationer can be imprisoned for failure to pay a monetary obligation, the trial court must inquire into the probationer's ability to pay and make an explicit finding that he willfully failed to do so." Id. at 549-50 (citing Del Valle v. State, 80 So. 3d 999, 1015 (Fla. 2011) ; see also Henderson v. State, 133 So. 3d 630, 630 (Fla. 1st DCA 2014) ("Although the State presented evidence tending to show that Ms. Henderson had the means to pay, the trial court failed to make explicit findings of willfulness as required by the caselaw."). Here, the trial court failed to inquire into Contreras's ability to pay the costs of his supervision and make explicit findings of willfulness. As such, Contreras was entitled to a favorable determination on the alleged violation of condition 2. See Sankey, 194 So. 3d at 550.

In conclusion, competent substantial evidence does not support the trial court's findings that Contreras willfully violated conditions 2 and 5 of his order of probation. We find no error with the trial court's findings as to Contreras's violations of conditions 1, 3, and 9. As to our remand, the trial court did not explain its reasoning for revoking Contreras's violation or the sentence it imposed. Because the trial court relied on both proper and improper grounds for revocation and we cannot determine whether the court would have revoked Contreras's probation based solely on his technical violations of conditions 1, 3, and 9, we remand with instructions. See Robinson, 907 So. 2d at 1287. On remand, the trial court should consider whether Contreras's violations of conditions 1, 3, and 9 warrant revocation of his probation. If the trial court concludes that those violations do not warrant revocation or the sentence it originally imposed, the court shall hold a second revocation hearing on the alleged violations of condition 5. See id. The trial court shall enter a written order reflecting its findings.

Reversed and remanded with instructions.

KHOUZAM and SALARIO, JJ., Concur.


text:
    Jeremy WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-1379
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019
    Jeremy Williams, Monticello, pro se.
    Ashley Moody, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 28, 2017 order denying Petitioner's pro se motion for postconviction relief filed in Case No. 2010-CF-29691-B, Eighteenth Judicial Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, LAMBERT, and HARRIS, JJ., concur.


text:
    Kevin Robert SHIRLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2599
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Affirmed without prejudice to raise any claim of ineffective assistance of counsel in a timely motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. See Greene v. State , 220 So. 3d 454 (Fla. 5th DCA 2016).

AFFIRMED.

BERGER, EDWARDS and SASSO, JJ., concur.


text:
    Terrell RIVERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3743
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019
    Terrell Rivers, Lake City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, Terrell Rivers, appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm in all respects except as to Appellant's claim that his counsel was ineffective for failing to object to the admission of dispatch logs.

The record before us does not include the portion of the transcript relevant to the admission of the dispatch logs at trial or otherwise definitively reflect the basis for their admission. Therefore, given Appellant's allegations, the attached record does not conclusively refute Appellant's claim. As such, we reverse and remand for the trial court to either hold an evidentiary hearing or to attach those portions of the record that conclusively refute the claim. We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, BERGER and EISNAUGLE, JJ., concur.


author: ORFINGER, J.

text:
    Favian RIVERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1397
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, and Amy Weber, Special Assistant Public Defender Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
    Roseanne Eckert, of FIU College of Law, Miami, Amicus Curie for Juvenile Law Center and Florida Juvenile Resentencing and Review Project.
   ORFINGER, J.

Favian Rivera seeks review of his conviction of first-degree murder with a firearm and sentence of life with no judicial sentencing review. We conclude the trial court unduly restricted Rivera's cross-examination of his co-defendant, a key State witness, and reverse.

Rivera and his co-defendant, Brandon Soto, both juveniles, were indicted for the first-degree premeditated murder of Hector Jorge-Pabon. Soto went to trial first and was found guilty of first-degree murder with special findings that he possessed and discharged a firearm that resulted in death. Post-verdict, in exchange for his testimony at Rivera's trial, Soto entered into an agreement with the State for a sentence of fifteen years in prison with a ten-year minimum mandatory term, thereby avoiding a forty-year to life sentence with judicial review after twenty-five years pursuant to the juvenile sentencing laws, sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014).

At Rivera's trial, defense counsel sought to inform the jury about the specifics of Soto's plea deal. The trial court ruled that Rivera could elicit that Soto was convicted of first-degree murder and the agreed-upon fifteen-year sentence. However, the trial court denied defense counsel's request to advise the jury that Soto's conviction carried a potential forty-year to life sentence with a twenty-five-year minimum mandatory because the trial judge was concerned that this information would inform the jury of Rivera's potential sentence. Rivera was subsequently found guilty of first-degree murder with special findings that he possessed and discharged a firearm that resulted in death. After an individualized sentencing hearing, he was sentenced to life in prison.

As the State argues, as a general rule, jurors are not to be told of the potential sentence a defendant faces if convicted. See Fla. R. Crim. P. 3.390(a). This is to minimize the possibility of jury sympathy based on the defendant's potential sentence and to ensure that the jury decides the case according to the law and evidence presented, rather than the consequences of its verdict. Knight v. State, 919 So. 2d 628, 634 (Fla. 3d DCA 2006). But against this procedural rule, we must weigh a criminal defendant's Sixth Amendment right to confront the witnesses against him, which includes wide latitude in cross-examining state witnesses, especially when cross-examining an accomplice or key prosecution witness. Elmer v. State, 114 So. 3d 198, 201 (Fla. 5th DCA 2012) ; Powe v. State, 413 So. 2d 1272, 1273 (Fla. 1st DCA 1982) ; Wolfe v. State, 190 So. 2d 394, 395 (Fla. 1st DCA 1966) (explaining that policy of law is that accomplice's testimony is disfavored, subject to close scrutiny, and should be received with caution by jury since some persons charged with or convicted of crime are willing to wrongfully implicate others if by doing so, they may mitigate penalty against themselves).

Cross-examination is often "the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). While the trial court has broad discretion to impose reasonable limits on cross-examination when it is concerned about, "among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant," Moore v. State, 701 So. 2d 545, 549 (Fla. 1997) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ), the court's discretion is constrained by a criminal defendant's Sixth Amendment rights and the rules of evidence, Patrick v. State, 104 So. 3d 1046, 1057 (Fla. 2012).

In Henry v. State, 123 So. 3d 1167, 1169-70 (Fla. 4th DCA 2013), the Fourth District wrote:

"[T]he Sixth Amendment guarantees the right of an accused to attack a witness' credibility by means of cross-examination directed toward revealing possible biases or ulterior motives of the witness as they may relate to the case at hand." Smith v. State, 38 So. 3d 871, 872 (Fla. 4th DCA 2010) (citing Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) ). "For purposes of discrediting a witness, a wide range of cross-examination is permitted as this is the traditional and constitutionally guaranteed method of exposing possible biases, prejudices and ulterior motives of a witness as they may relate to the issue or personalities ...." Strickland v. State, 498 So. 2d 1350, 1352 (Fla. 1st DCA 1986) (citations omitted). "The vital importance of full and searching cross-examination is even clearer when, as here, the prosecution's case stands or falls on the jury's assessment of the credibility of the key witness[ ]." Id. (citing Wooten v. State, 464 So. 2d 640 (Fla. 3d DCA 1985) ). Under such circumstances, "[o]bviously, a defendant has a strong interest in discrediting a crucial state witness by showing bias, an interest in the outcome, or a possible ulterior motive for his in-court testimony." Livingston v. State, 678 So. 2d 895, 897 (Fla. 4th DCA 1996) (citing Phillips v. State, 572 So. 2d 16 (Fla. 4th DCA 1990) ).

The evidence code allows a party to attack a witness's credibility based on bias. § 90.608(2), Fla. Stat. (2014) ("Any party, including the party calling the witness, may attack the credibility of a witness by ... [s]howing that the witness is biased."). Any relevant evidence tending to establish that a witness is appearing for the prosecution for any reason other than to tell the truth should not be kept from the jury. Holt v. State, 378 So. 2d 106, 108 (Fla. 5th DCA 1980). Defendants may cross-examine a witness about the conditions of a plea bargain entered into between the state and the witness. Engram v. State, 405 So. 2d 428, 429 (Fla. 1st DCA 1981) (citing Lee v. State, 324 So. 2d 694 (Fla. 1st DCA 1976) ). That examination includes inquiry into the specific nature of the pending charges against a cooperating state witness, see, e.g., Henry, 123 So. 3d at 1170 ; Bell v. State, 614 So. 2d 562, 564 (Fla. 3d DCA 1993), and how the pending criminal charges may have influenced the witness's cooperation with the state and the content of in-court statements, see Breedlove v. State, 580 So. 2d 605, 608 (Fla. 1991) ; Pomeranz v. State, 634 So. 2d 1145, 1146 (Fla. 4th DCA 1994).

Here, Soto was convicted of first-degree murder with a firearm, the same charge that Rivera was facing. The court permitted evidence that Soto agreed to a fifteen-year sentence in exchange for his testimony against Rivera, but prohibited Rivera from informing the jury that without the fifteen-year plea agreement, Soto would have been sentenced to at least forty years, up to life, with eligibility for judicial review after twenty-five years. See Montgomery v. State, 230 So. 3d 1256, 1262 (Fla. 5th DCA 2017). Thus, Rivera was not allowed to question Soto on the pertinent details of his plea agreement and establish his motive or bias in testifying against him-the mandatory sentence that Soto would (and believed that he would) receive in the absence of the plea agreement. See Fajardo v. State, 193 So. 3d 1019, 1023-24 (Fla. 4th DCA 2016) (explaining that defendant's belief that he could get released and avoid deportation by assisting law enforcement was relevant to witness's bias, motive, and self-interest); see also United States v. Oliveros, 275 F.3d 1299, 1307 (11th Cir. 2001) ("When it comes to a witness' motive to lie, however, what counts is not the actual extent of the benefit the witness has received or will receive, but the witness' belief about what he is getting.... The bias of a witness is a subjective fact influenced by that witness' beliefs about the benefit he will receive if he testifies in a particular way and the value of it to him, which is measured by what he thinks will happen if he does not receive the benefit.").

The exclusion of this evidence prevented Rivera from demonstrating the full extent of Soto's interest in the case and his motivation to testify consistent with the State's theory of prosecution. See, e.g., Henry, 123 So. 3d at 1169 (holding that defendant's counsel was entitled to elicit evidence about degree of felony and maximum prison penalty witness faced to demonstrate his motive and bias to testify against defendant); Jackson v. State, 37 So. 3d 370, 373 (Fla. 2d DCA 2010) (holding that trial court abused its discretion in prosecution for cocaine trafficking by refusing to allow defendant to cross-examine codefendants, who purchased cocaine from defendant, regarding length of maximum sentence or mandatory minimum prison term; codefendants pleaded guilty and testified against defendant in hopes of receiving more lenient sentences, and therefore, defendant had right to cross-examine on sentence length to reveal extent of bias, prejudice, or improper motive codefendants may have had in testifying); Powe, 413 So. 2d at 1273 (reversing because trial court refused to allow defense counsel to inquire about minimum mandatory penalty that state's key witness avoided with guilty plea; witness's knowledge of penalty may have been significant factor in decision to testify against defendant).

At the very least, the trial court should have allowed Rivera to inform the jury that Soto was facing a significantly more severe or substantial sentence in the absence of his plea agreement. See, e.g., United States v. Walley, 567 F.3d 354, 358-59 (8th Cir. 2009) (affirming limitation as jury was aware that prosecution witness faced possibility of "significant sentence" for criminal activity, and no indication that evidence of specific sentence would have given jury "significantly different impression" of witness's credibility). Limiting the cross-examination of a state witness violates the Sixth Amendment when, as here, a defendant shows that "[a] reasonable jury might have received a significantly different impression of [the witness's] credibility had [defense] counsel been permitted to pursue his proposed line of cross-examination." Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431. Shielding the jury from such information is intended to prevent the jury from reaching a verdict based on sympathy for the defendant's plight contrary to their oath to render a verdict based only on the law and the evidence. Such considerations, while entirely valid, do not outweigh Rivera's Sixth Amendment rights and do not justify keeping the details of Soto's agreement from the jury in the circumstances here. "The human condition strongly suggests that a person may not be willing (or likely) to lie under oath if he expects his benefit to be 8 years in prison rather than 9, but his incentive to dissemble and falsify may increase exponentially if he expects to serve a couple of years in prison instead of a couple of decades." United States v. Rushin, 844 F.3d 933, 942-43 (11th Cir. 2016) (Jordan, J., concurring).

We do not suggest that in every case such broad cross-examination is appropriate. But here, Soto was a key State witness and the only witness who could offer evidence of premeditation. Hence, we cannot conclude the error was harmless. The examination into and evidence of bias, motive or self-interest was clearly relevant and, if proven, could have impacted Soto's credibility. The State cannot prove beyond a reasonable doubt that the error did not contribute to Rivera's conviction. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986) ("The question is whether there is a reasonable possibility that the error affected the verdict.").

For these reasons, we reverse Rivera's conviction for first-degree premeditated murder and remand for a new trial. Because we conclude that Rivera is entitled to a new trial, we need not address Rivera's other arguments regarding the constitutionality of the juvenile sentencing laws. See Singletary v. State, 322 So. 2d 551, 552 (Fla. 1975) ("[C]ourts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds.").

For purposes of remand, however, we briefly address the jury instructions. The trial court properly gave an initial aggressor jury instruction in this case because there was a factual dispute that Rivera may have initially provoked the use of force against himself. See, e.g., Thompson v. State, 257 So. 3d 573, 581 (Fla. 1st DCA 2018) ; Johnson v. State, 65 So. 3d 1147, 1149 (Fla. 3d DCA 2011). However, the jury instruction, as given, did not accurately state the law because it improperly implied that Rivera was required to establish two circumstances before invoking self-defense. Instead, only one or the other circumstance is required-there was no means of escape other than the use of deadly force, or the provoking person withdrew from physical contact or unequivocally indicated his desire to withdraw from the confrontation and the alleged victim continued or resumed the use of force. See § 776.041 (2), Fla. Stat. (2014) ; State v. Floyd, 186 So. 3d 1013, 1022 (Fla. 2016) ; Darling v. State, 81 So. 3d 574, 578 (Fla. 3d DCA 2012). Thus, on remand, the trial court must properly instruct the jury on the initial aggressor exception, inserting the "or" between the alternative circumstances, as reflected in the recent amendment to the jury instructions. See In re Std. Jury lnstr. in Crim. Cases-Report 2017-07., 257 So. 3d 908, 922 (Fla. 2018).

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

WALLIS, J., concurs.

EDWARDS, J., concurs in part, and dissents in part, with opinion.

EDWARDS, J., concurring in part, dissenting in part.

I concur with the majority that an initial aggressor jury instruction should have been given, but that it should have been worded differently as described in the majority opinion. However, I respectfully dissent with regard to the majority's determination that Rivera did not receive a fair trial because the jury was not told the precise prison sentence a key witness would have faced but for a deal he made with the State.

Favian Rivera, a juvenile at the time he shot Hector Jorge-Pabon ("Hector"), asks that we set aside the jury's verdict and reverse his conviction of first-degree murder with a firearm. Rivera asserts that he was deprived of the ability to effectively cross-examine a key witness against him. On appeal, for the first time, he makes the specific argument that this violated his Sixth Amendment right to confrontation. Rivera claims that the jury did not have enough information to reach an informed decision about whether his co-defendant, Brandon Soto, was a liar whose testimony may not be reliable. That argument lacks merit. Nobody needed to measure Pinocchio's nose to understand that he often lied, nor did the jury need to know the exact sentence that the convicted murderer Soto avoided through his deal to understand that Soto was a liar who was highly motivated to provide testimony that would please the State.

The trial court's only limitation on Rivera's cross-examination of Soto was the one imposed by Florida Rule of Criminal Procedure 3.390(a), which meant that Rivera was not allowed to ask Soto what prison sentence Soto would have faced but for the deal he made with prosecutors. Rivera faced the same charge on which Soto had been found guilty, the first-degree murder with a firearm of Hector. Soto's trial concluded the week before Rivera's; thus, advising the jury of Soto's potential sentence would essentially have advised the jury of Rivera's potential sentence, which is contrary to Rule 3.390(a).

The logic underlying this rule is to minimize the possibility of the jury being swayed by the penalty and to ensure that the jury's decision is based only on the law and evidence presented. Knight v. State , 919 So. 2d 628, 634 (Fla. 3d DCA 2006).

Granted, Soto's potential sentence would have been relevant here because evidence tending to prove that a witness is motivated by a deal with the State to testify against a defendant and in favor of the prosecution is usually admissible. In particular, a defendant may cross-examine a witness about the conditions of a plea bargain entered into between the State and the witness. Engram v. State , 405 So. 2d 428, 429 (Fla. 1st DCA 1981) (citing Lee v. State , 324 So. 2d 694 (Fla. 1st DCA 1976) ). That examination usually includes an inquiry into the specific nature of the pending charges against a cooperating state witness. See Henry v. State , 123 So. 3d 1167, 1170 (Fla. 4th DCA 2013) ; Bell v. State , 614 So. 2d 562, 564 (Fla. 3d DCA 1993). In Henry the defendant was charged with raping his cellmate, the deal-receiving witness. Henry's defense to the charge was that their sexual encounter while in jail was consensual. 123 So. 3d at 1170. The witness/victim lied in response to the prosecutor's questions about receiving any deal from the State, creating the false impression that he was not offered leniency or any other benefit to testify. Id. at 1168. In fact, the witness/victim had been charged with a felony, faced up to five years in prison which was reduced to eighteen months of probation, and was only released from jail after working out the plea deal. Id. The trial court denied the defense's proffered cross-examination, which would have disclosed the witness's possible motivation to testify against him. Id. Indeed, Henry's right to cross-examine the victim, who was the sole witness that could undermine his consensual sex defense, was unduly hampered. The Henry jury was left with the false impression that the key witness was not possibly motivated by a deal to slant his testimony in favor of the State; no such false impression existed in the case at hand. Furthermore, Rule 3.390(a) was not implicated or discussed in Engram , Lee , Henry , or Bell . Thus, those cases do not provide an answer for determining whether a defendant, who is facing the same penalty as the deal-motivated witness, must be permitted to advise the jury of the details of the prison sentence they both faced.

EVIDENCE OF THE CRIME

In Rivera's trial, the jury heard evidence that at the time of the murder, Soto and Rivera were best friends and that Rivera had been humiliated and beaten up months earlier by Jomar, Hector's younger brother. Jomar and Kayla Oms, Rivera's girlfriend, testified that earlier on the day of the murder, Rivera pulled his gun and threatened Jomar. The jury heard that Jomar ran home when he saw Rivera's gun. Hector vowed to Jomar that he would take Rivera's gun from him, and they went looking for Rivera. Meanwhile, Rivera, Kayla, and Soto armed themselves with pistols and went looking for Jomar.

The testimony of several witnesses, including Soto, was that Jomar and Hector appeared unexpectedly in front of Rivera, Soto, and Kayla. Neither Rivera, Soto, nor Kayla had ever met Hector previously. Jomar confirmed to his brother that Rivera was the guy who threatened him with a gun earlier that day.

According to the testimony of Soto, Kayla, and Jomar, the unarmed victim walked towards Rivera without gesturing or saying anything else. In an instant, and without a word, Rivera pulled his gun and shot Hector in the stomach, severing his aorta. Jomar immediately ran away. There was conflicting testimony about whether it was Soto or Rivera who chased after Jomar, trying but failing to shoot him due to a jammed gun. There was further conflicting testimony about whether it was Soto or Rivera who then shot Hector in the head as he lay bleeding on the ground. The medical examiner testified that both shots were potentially fatal; this provided a basis for the proposition that each shooter killed Hector, and both could be found guilty of his murder.

Soto was a key witness in terms of providing testimony of Rivera's premeditated intent to shoot Jomar. Soto repeatedly testified, and the prosecution argued to the jury, that because of the previous humiliation and beating inflicted by Jomar, Rivera declared an "SOS" on Jomar, which meant to shoot or stomp or stab Jomar on sight. Jomar testified that on one occasion, before the day of his brother's murder, Rivera made a shooting gesture and, on another occasion, Rivera tried unsuccessfully to jump Jomar. Kayla testified that Rivera told her after Jomar humiliated and punched him that Rivera wanted his chance to fight Jomar one-on-one. Soto denied shooting Hector and claimed that Rivera had fired both shots. Immediately after the shooting, Soto and Rivera separately fled the scene and days later, each separately left Florida in an effort to avoid arrest and prosecution. The week before Rivera's trial started, Soto was tried and convicted of the first-degree murder of the same victim, Hector.

The State argued that Rivera's premeditated intent to shoot Jomar, embodied in the SOS, could be transferred to the killing of Hector. However, the State also argued that the very short time interval between Rivera encountering and then shooting Hector was independent proof of premeditated murder. The State explained that it was just like the premeditation involved in seeing then swatting a mosquito on your arm after briefly considering the bug's fate. It is clear that, while Soto's testimony about the SOS was relevant to premeditation, the jury heard relevant testimony from other witnesses about premeditation. Thus, it would not be accurate to say that Soto was alone in providing the evidentiary basis for the jury to find Rivera's murder of Hector premeditated.

SIXTH AMENDMENT CONFRONTATION

Rivera made it clear to the trial court that he wanted to advise the jury through cross-examination that Soto faced a prison sentence of forty years to life but for his plea deal. However, Rivera never argued to the trial court that his Sixth Amendment right to confront witnesses was being impaired by the sole limitation placed on exposing Soto's testimonial motivation and otherwise unhampered cross-examination into other factors surrounding Soto's credibility. "In order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below." Corona v. State , 64 So. 3d 1232, 1242 (Fla. 2011) (emphasis added) (quoting Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) ). While there is no requirement "that a defendant intone special 'magical words' in order to preserve a Sixth Amendment Crawford claim, the defendant must be "sufficiently specific to inform the court of the perceived error." Id. In Corona , the supreme court found that the defendant's hearsay objection "fairly appraised the trial court of the relief sought and the grounds therefore," because the defendant had just made a hearsay objection specifically invoking the confrontation clause. Id. at 1242-43 (quoting § 924.051(1)(b), Fla. Stat. (2002) ). Furthermore, in Corona , after denying the specific confrontation clause objection, the trial court announced in response to counsel's next hearsay objection that counsel "had a standing objection to this line of questioning, and based upon prior rules [sic] by this court, I'm going to overrule those objections. But you've preserved your objection." Id. at 1242. The supreme court found this sufficient to preserve a Crawford claim, but noted that a general objection on hearsay grounds, without mentioning the confrontation clause, would have been insufficient. In this case, because Rivera never mentioned the Sixth Amendment below, he failed to "fairly appraise the trial court" of an arguable constitutional basis for violating Rule 3.390(a). Id. at 1243. The trial judge had no opportunity to consider the never-raised constitutional argument or to fashion appropriate relief that would have, on one hand, sufficiently preserved Rivera's Sixth Amendment rights to his satisfaction, and on the other, still complied with Rule 3.390(a). Rivera's constitutional argument, which was not made below, should not be adopted now as the basis for finding the trial court reversibly erred. However, because the majority grants a new trial based solely on this unpreserved constitutional issue, it will be addressed below.

It is undisputed that Rivera was entitled by Florida law and the Sixth Amendment to develop and demonstrate Soto's lack of credibility through cross-examination and other methods of impeachment. In Henry , the Fourth District Court pointed out that "the Sixth Amendment guarantees the right of an accused to attack a witness' credibility by means of cross-examination directed toward revealing possible biases or ulterior motives of the witness as they may relate to the case at hand." 123 So. 3d at 1169 (quoting Smith v. State , 38 So. 3d 871, 872 (Fla. 4th DCA 2010) ). Traditional means of attacking a witness's credibility include introducing prior inconsistent statements made by the witness, advising the jury that the witness is a convicted felon, and presenting evidence regarding the witness's reputation as a liar.

SOTO'S CREDIBILITY - OPENING STATEMENTS

While the State did not describe Soto as a liar in its opening statement, it clearly set the stage for showing that Soto would be lying if he denied shooting Hector in the head. Defense counsel commenced the attack on Soto's credibility in opening, pointing out that, only a week before, he went to trial, was convicted of the first-degree murder of the same victim, and was facing sentencing. Defense counsel told the jury that over the weekend Soto had made a deal with the State to testify against Rivera in return for which Soto's "sentence will be limited to only 15 years." (emphasis added). Defense counsel cautioned the jury that Soto's testimony "was going to be different from anything he said before," and that it was "going to be self-serving testimony" against Rivera. So, before any witness testified, Rivera's counsel was preemptively impeaching Soto as a self-interested convicted felon who had strong ulterior motives to testify differently than he had before, now in favor of the State and against Rivera, in order to receive favorable treatment, i.e., a reduced sentence.

SOTO'S CREDIBILITY - TESTIMONY

When Soto testified at trial, defense counsel wasted no time attacking his credibility on cross-examination. The first credibility hit was achieved by having Soto admit that he was a convicted felon-indeed a murderer-who was not going to appeal his conviction. Next, defense counsel got Soto to admit that he had not testified truthfully at his own trial. Soto said he lied so that he "could go home." Next, Soto spelled out the terms of his deal with the State-that he would serve only 15 years in prison. Soto agreed that he was "not in danger of having any more than 15 years under the terms of this deal." (emphasis added). Soto admitted on cross-examination that as part of the deal, the State agreed it would not prosecute him for perjury regarding the lies he told during his own trial.

After scoring numerous credibility-weakening blows, defense counsel then got Soto to admit that he was testifying against Rivera in order to help himself. Thus, Rivera was permitted to cross-examine Soto thoroughly, establishing Soto's felony conviction, that he was a self-admitted liar who committed perjury only the week before, and that he had an ulterior, self-serving motive to testify favorably for the State.

It is true that Rivera had to omit sharing one detail about Soto's deal-the sentence he would otherwise have received. However, even as to that one missing piece of information, defense counsel made it clear in opening statement and on cross-examination that, but for the deal, Soto knew he would have "been in danger" of serving a longer sentence instead of being "limited to only" 15 years. Given that Soto's conviction was for first-degree murder with a firearm, coupled with the nod and wink from defense counsel, it strains credulity to argue that the jury may have thought Soto would otherwise have faced a sentence that was only insignificantly longer than fifteen years, and thus discounted the motivation provided by Soto's deal.

The fact that witnesses will try to get reduced sentences by testifying for the State was reinforced during this trial with regard to Correa, a federally convicted drug dealer who testified that Rivera made inculpatory admissions to him when they were cell mates. Even though Correa had already been sentenced, he admitted that he hoped the federal judge might reduce his prison sentence upon learning that Correa had cooperated with the State in this case.

SOTO'S CREDIBILITY - CLOSING ARGUMENTS

The State's closing argument included admissions that Soto lied during his own trial and an implied admission that he lied in Rivera's trial when Soto denied shooting Hector in the head. In its rebuttal closing argument, the State cautioned the jury about which parts of Soto's testimony it should believe. The State said it was not asking the jury to just run with Soto's testimony, nor was it asking the jury to believe everything Soto said. Rather, the State said the jury should only rely upon those portions of Soto's testimony that were consistent with other evidence.

Rivera's closing argument started out by directly calling Soto a liar, saying that none of his testimony should be accepted or taken to the bank. Defense counsel argued that for self-serving reasons, both Soto and Correa were hoping that the testimony they provided for the State would lead to Rivera's conviction. Counsel bolstered the argument against believing Soto or Correa by referring to an instruction the jury would soon receive-that when judging any witness's credibility, it should consider whether that witness was offered or had received preferential treatment or some other benefit in order to testify.

Rivera's credibility attack in closing argument continued by pointing out that the witness, presumably Soto, had at other times given statements that were inconsistent with trial testimony. Defense counsel also warned the jury against accepting the testimony of "jailbird witnesses," all of whom were convicted felons. Finally, defense counsel told the jury to disregard the testimony of Soto because he was a stone-cold killer, and made an appeal seemingly based on the code of the Old West-that the jury should not believe Soto because he was willing to shoot Jomar in the back.

SOTO'S CREDIBILITY - JURY INSTRUCTIONS

When considering whether Rivera was given a fair trial, the instructions given to the jury regarding witness credibility must be taken into account. The jury here was instructed that when weighing the evidence, it should consider whether: (1) the witness had some interest in how the case should be decided; (2) the witness had been offered or received preferred treatment or other benefit in order to get the witness to testify; (3) the witness had made prior inconsistent statements; and (4) the witness had been convicted of a felony.

The following jury instruction given by the trial court was particularly pertinent to Soto's credibility and effectively cautioned the jury about accepting Soto's testimony because of his deal with the State:

You must consider the testimony of some witnesses with more caution than others. For example, a witness who claims to have helped the defendant commit a crime or has been promised immunity from prosecution or hopes to gain more favorable treatment in his or her own case may have a reason to make a false statement in order to strike a good bargain with the State. This is particularly true when there is no other evidence tending to agree with what the witness says about the defendant. So while a witness of that kind may be entirely truthful when testifying, you should consider his or her testimony with more caution than the testimony of other witnesses. However, if the testimony of such a witness convinces you beyond a reasonable doubt of the defendant's guilt or the other evidence in the case does so, then you should find the defendant guilty.

SOTO'S CREDIBILITY AND RULE 3.390(a)

The trial court properly applied Rule 3.390(a) as a limit to the attack on Soto's credibility. That rule can be viewed similarly to section 90.403, balancing the relevance of a defendant's potential sentence against the possibility that a jury's decision could be swayed if it was advised of the potential sentence. The trial court invited defense counsel to "harp on the fact that he got a deal," but forbade any discussion of the fact that Soto possibly faced a life sentence or of the potentially applicable mandatory minimums. Even in the "he said-he said" circumstances of Henry , relied upon by the majority, the Fourth District cautioned that the trial court must engage in a section 90.403 analysis regarding whether certain details should not be disclosed regarding the favorable terms a deal-motivated witness receives. 123 So. 3d at 1170-71. As noted above, defense counsel certainly left the jury with the clear impression that Soto would otherwise have faced a lengthier sentence but for the deal that limited his sentence to "only" 15 years with "no danger" of him facing more than 15 years.

Importantly, defense counsel never asked Soto whether he would have faced a substantially or significantly longer sentence had he not accepted the deal. An appellate court should not speculate as to what the trial court's ruling would have been had such a question been posed, nor should this court announce that a reversal would have been avoided had such a question been permitted, when it was never asked. It is not the role of the trial court to suggest to either side questions that counsel should ask, especially when no such input or direction was sought.

Furthermore, it is often the case with impeachment that the jury is not told every detail about the information used to impeach a witness. For example, when impeachment involves disclosing the witness's prior felony convictions under section 90.610, the jury usually hears only the number of such convictions without any information regarding the crimes for which the witness was convicted, even if otherwise relevant, such as convictions of perjury in previous trials. Likewise, where a witness is being impeached under section 90.609 based upon his or her reputation in the community as a liar, the jury typically hears only about the general poor reputation and is not given any information about specific lies or controversies that led to the witness's poor reputation. After all, the purpose of impeachment is to place the jury on notice that the witness's testimony may be unreliable and not worthy of consideration; it is not the goal to have mini-trials over the subject matter of the impeachment bases. Here, there was no consensus among the court and counsel as to whether, given Miller and its progeny, Soto would truly have faced a life sentence. Rivera's jury would not have benefitted from a mid-trial seminar on what prison sentences could constitutionally be imposed on a homicidal juvenile. It is difficult to comprehend how the trial court possibly have erred at all, much less reversibly erred, in following the mandatory provisions of Rule 3.390(a), especially in light of what the jury knew about Soto's credibility and the instructions on how his testimony must be cautiously considered.

CONCLUSION

Soto's credibility was so thoroughly attacked, questioned, and warned about that it is inconceivable that the jury's verdict would have been any different had the one missing detail of Soto's deal-the sentence he otherwise faced-been provided. Thus, if there was any error, it was harmless beyond a reasonable doubt. State v. DiGuilio , 491 So. 2d 1129, 1135 (Fla. 1986). The jury's verdict and Rivera's conviction of first-degree murder with a firearm should be affirmed. Because the majority has reached a contrary decision, I must respectfully dissent.

      Rivera was also convicted of aggravated assault with a firearm but does not challenge that conviction or sentence on appeal.

      The dissent argues Rivera was required to specifically argue to the trial court that its ruling, restricting his right to cross-examine Soto about his plea deal, impaired his Sixth Amendment right to confront witnesses against him. Although Rivera did not specifically assert a Sixth Amendment violation, his attempt to cross-examine Soto on the full extent of his plea deal was clearly related to the right of confrontation, so much so that this Court may address the matter on its merits. See Evans v. State, 838 So. 2d 1090, 1097 n.5 (Fla. 2002) (per curiam) (finding failure to specifically assert Sixth Amendment violation will not preclude review where issue raised below "is closely related to the right of confrontation"), cert. denied, 540 U.S. 846, 124 S.Ct. 121, 157 L.Ed.2d 84 (2003).

      Kayla flatly denied that she was armed; thus, either she or Soto was obviously lying to the jury about that fact.

      Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      There was little danger that Soto may have blurted out the specific length of his sentence, as the trial court had counsel repeatedly question Soto through proffers before he actually testified.

      Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).


text:
    Curtis Marco WILSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3568
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019
    Jorge León Chalela, of Jorge León Chalela, P.A., Tampa, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Curtis Marco Wilson appeals his conviction and sentence for first-degree murder. The sole issue on appeal is whether the trial court erred in admitting into evidence statements he made to police after he invoked his Fifth Amendment right to counsel. We affirm.

Wilson was arrested and taken to the St. Petersburg Police Department where Citrus County detectives, investigating a murder, questioned him. Before questioning him, the detectives read Wilson his Miranda rights. Wilson did not request an attorney or invoke his right to remain silent. Wilson steadfastly denied that he had ever been to Crystal River where the murder occurred or that he knew the other suspects or anything about the murder. When one of the detectives showed Wilson a warrant for his arrest for first-degree murder, Wilson said: "I don't know what to tell you. I need a lawyer, man." The detectives ceased further questioning and Wilson was transported to Citrus County Jail.

Five days later, the same Citrus County detectives went to the Citrus County jail and questioned Wilson again. After he was again read his Miranda rights, Wilson agreed to speak to the detectives, but said that he could not tell them much because he had to speak to his lawyer first. The detectives urged Wilson to tell them what he knew about the murder, informing him of the evidence they had against him and telling him that the other suspects were claiming that Wilson alone had committed the murder. Wilson adamantly denied having any part in the murder and repeatedly told the detectives that his lawyer would figure out why the other suspects were trying to blame him for it. He did, however, admit to being in Crystal River around the time of the murder.

Before trial, Wilson moved to suppress the statements he made during both interrogations, arguing that both interviews were inadmissible because he had invoked his right to counsel during the first interrogation, requiring the detectives to cease questioning him. The trial court denied Wilson's motion, finding that he had never unequivocally requested the assistance of a lawyer at any time during questioning. At the subsequent trial, Wilson was convicted of first-degree murder and sentenced to life in prison without the possibility of parole.

We review a trial court's ruling on a motion to suppress as a mixed question of law and fact. O'Hare v. State, 263 So. 3d 255, 258 (Fla. 5th DCA 2019). We defer to the trial court's findings of fact as long as they are supported by competent, substantial evidence, but we review de novo a trial court's application of law to the facts. Delhall v. State, 95 So. 3d 134, 150 (Fla. 2012). Though when reviewing such a motion we defer to a trial court's findings of fact, this deference does not fully apply when, as here, the findings are based mainly on review of videotapes and transcripts as opposed to live testimony. State v. Carter, 172 So. 3d 538, 539-40 (Fla. 5th DCA 2015) ; see, e.g., Almeida v. State, 737 So. 2d 520, 524 n.9 (Fla. 1999) ("The trial court had no special vantage point in reviewing this tape. Based on our review of the transcript and tape, we conclude that the record evidence is legally insufficient to support the trial court's finding.").

To resolve this appeal, we must answer two questions. First, did Wilson clearly invoke his right to counsel? And second, if he did, was the admission of his statements following his invocation harmful error? We address each question in turn.

"[A] suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and ... the police must explain this right to him before questioning begins."

Davis v. United States, 512 U.S. 452, 457, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (citing Miranda, 384 U.S. at 469-73, 86 S.Ct. 1602 ). If the suspect requests an attorney, the police must immediately cease all questioning. Rhodes v. State, 219 So. 3d 251, 252 (Fla. 1st DCA 2017).

The suspect's request for counsel must be clear and unambiguous. Davis, 512 U.S. at 459, 114 S.Ct. 2350. Whether such a request is unambiguous is an objective inquiry designed to determine if "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id.; see, e.g., Daniel v. State, 238 So. 3d 1283, 1285-87 (Fla. 5th DCA 2018) (finding that suspect's statement, "Look, can I have a lawyer, man," was unequivocal request for counsel); Rhodes, 219 So. 3d at 252 (finding that suspect's statement, "I need to see a lawyer," was unequivocal request for counsel); Bean v. State, 752 So. 2d 644, 646 (Fla. 5th DCA 2000) (concluding that statement, "I should be able to talk to a lawyer," was unequivocal request for counsel). "But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Davis, 512 U.S. at 459, 114 S.Ct. 2350 ; see, e.g., Walker v. State, 957 So. 2d 560, 571, 574 (Fla. 2007) (concluding that suspect's statement, "I think I may need a lawyer," followed by suspect asking police officer if he needed legal counsel was not unambiguous request for counsel); Spivey v. State, 45 So. 3d 51, 54 (Fla. 1st DCA 2010) (finding suspect's statement, "I mean if I am being held and I'm being charged with something I need to be on the phone calling my lawyer," was not unequivocal request for counsel that would require termination of questioning).

Applying that standard here, we conclude that Wilson's statement, "I need a lawyer, man," was an unambiguous request for counsel. Florida courts have repeatedly found similar statements to be an unequivocal invocation of the right to counsel. And, the detectives' own actions also demonstrate that they understood Wilson's statement to be an invocation of his right to counsel because they cut off further questioning and left the interrogation room shortly thereafter. The trial court correctly denied Wilson's suppression motion as to this statement as the detectives stopped the interrogation once Wilson invoked his right to counsel.

We now examine whether the second round of questioning violated Wilson's right to counsel. The second interview took place five days after the first interview, during which time Wilson remained in custody. Wilson argues that once he invoked his right to counsel, the police could not reinitiate questioning without his attorney present.

Wilson's argument correctly states the law. Reinitiation of questioning following a suspect's invocation of the right to counsel when the suspect has remained in pretrial confinement, as was the case here, is inherently coercive and is presumed to violate the suspect's Miranda rights. See, e.g., Minnick v. Mississippi, 498 U.S. 146, 148-53, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (holding that police officers violated defendant's Miranda right to counsel when reinterrogating him two days after defendant requested attorney and defendant remained in county jail between both interrogations); Arizona v. Roberson, 486 U.S. 675, 678, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (holding that reinterrogation of defendant, who remained in police custody, three days after he requested attorney violated defendant's Miranda right to counsel);

Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding that when defendant remained in pretrial confinement, police reinterrogation day after defendant requested an attorney violated defendant's Miranda right to counsel). "Once a suspect has requested the help of a lawyer, no state agent can reinitiate interrogation on any offense throughout the period of custody unless the lawyer is present," with a few limited exceptions. Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992). These exceptions allow police to reinitiate questioning following a suspect's invocation of the right to counsel when the suspect initiates the conversation with police, Edwards, 451 U.S. at 484, 101 S.Ct. 1880, or if the suspect experiences a break in custody that allows him "to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody." Maryland v. Shatzer, 559 U.S. 98, 110, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). Both exceptions rebut the implicit assumption that reinitiated questioning is inherently coercive. See id. at 105, 130 S.Ct. 1213.

Neither exception was present here. Wilson did not initiate the second round of questioning, as the detectives came to the county jail on their own volition to question him. Likewise, Wilson did not experience a break in custody, as he remained in pretrial detention for the entire time between the first and second interrogation. Thus, Wilson, having requested an attorney, should not have been questioned without an attorney present. Minnick, 498 U.S. at 153, 111 S.Ct. 486 (holding that "when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney").

We conclude the entire second interview should have been excluded and only Wilson's statements made during the first interview, before he invoked his right to counsel, should have been admitted. However, the erroneous admission of a confession is not per se reversible error; instead, a harmless error analysis must be conducted. Mansfield v. State, 758 So. 2d 636, 644 (Fla. 2000). To establish that an error was harmless, the State must "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). To determine whether an error was harmless, appellate courts must examine the entire record, view the admissible evidence presented to the jury, and consider how the jury might have been influenced by the improperly admitted evidence. See id. The analysis "is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test," see id. at 1139, but instead, compels us to examine the properly admitted evidence of Wilson's guilt. Daniel, 238 So. 3d at 1289.

Having carefully reviewed the entire record, we conclude that the admission of the statements that Wilson made during his second police interview was harmless. The second statement did not reveal anything incriminating that was not otherwise presented to the jury. Wilson only told the police during the second interview that he went to Crystal River with one of the other suspects on the night of the murder, stayed in a motel there, and that the other suspect dropped him off in St. Petersburg the next day. The State did not need Wilson's statements to prove these events because it produced independent evidence that Wilson had done all these things, including cell tower records and motel security camera footage.

The only harm that Wilson alleges he suffered from the admission of the second interview was that it undermined his credibility with the jury because his statements contradicted what he told police in his first interview-that he had never been to Crystal River. But this concern is insignificant because with or without the introduction of Wilson's second interview, the jury saw the motel surveillance video, cell phone records, and toll plaza photos that directly undermined Wilson's earlier statements that he had never been to Crystal River and did not know the other suspects.

The evidence against Wilson was damning. We conclude beyond a reasonable doubt that the admission of statements Wilson made to police during his second interrogation did not affect the jury's verdict, and thus affirm Wilson's conviction for first-degree murder and his life sentence.

AFFIRMED.

EVANDER, C.J. and HARRIS, J., concur.

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


text:
    E.P., Mother of S.P., a Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D19-435
    District Court of Appeal of Florida, First District.
    June 21, 2019
    Candice K. Brower, General Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Gainesville; Robert Keep, Jr., Assistant Regional Conflict Counsel, Office of Criminal Conflict & Civil Regional Counsel, Jacksonville; Crystal McBee Frusciante of Frusciante Law Firm, P.A., Sunrise, for Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellee.
    Thomasina F. Moore, Statewide Director of Appeals, and Sara Goldfarb, Appellate Counsel, Florida Statewide Guardian ad Litem Office, Tallahassee and Stephanie Marusak Marchman, Gray Robinson, P.A., Pro Bono Counsel, Gainesville, for Guardian ad Litem Program.
   Per Curiam.

E.P. appeals the final judgment that terminated her parental rights to S.P., raising five arguments, including challenges to each of the three separate grounds found to justify termination. As E.P. argues and Appellee concedes, the trial court erred in finding grounds for termination pursuant to section 39.806(1)(l ), Florida Statutes, because children were only removed from E.P.'s care on two occasions, whereas the statute requires removal on at least three occasions. E.P. has not shown any further reversible error, and the trial court properly terminated her rights under sections 39.806(1)(c) and 39.806(1)(f). Therefore, we affirm the termination of E.P.'s parental rights under sections 39.806(1)(c) and 39.806(1)(f), but reverse the portion of the order finding grounds for termination under section 39.806(1)(l ) and remand for this ground to be stricken from the order. See A.B. ex rel. J.B. v. Dep't of Children & Families , 969 So. 2d 422, 422 (Fla. 1st DCA 2007).

AFFIRMED in part, REVERSED in part, and REMANDED .

Ray, Kelsey, and Winokur, JJ., concur.


text:
    L.S., Mother of L.S.-M., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D19-0570
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 25, 2019
    Lawrence P. Cartelli, of Lawrence P. Cartelli, P.A., Tavares, for Appellant.
    Kelley Schaeffer, Children's Legal Services, Bradenton, for Appellee.
   PER CURIAM.

L.S., the mother of L.S.-M., a minor child, appeals the Order on Mother's Motion and Order Terminating Supervision and Relinquishing Jurisdiction that was entered without affording her an opportunity to present evidence. The circuit court expressly stated in its order that it did not perform a best interest analysis or address issues of time sharing at the hearing. This was error. Before permanently awarding custody to the father, the non-offending parent, the circuit court was required to hold an evidentiary hearing on Mother's motion for reunification to allow the circuit court to consider whether the child would be endangered by being returned to Mother's custody, and whether it was in the child's best interest to be returned to Mother's custody. See §§ 39.522(3), 39.621(11), Fla. Stat. (2018) ; K.C. v. Dep't of Child. & Fams., 227 So. 3d 783, 783 (Fla. 5th DCA 2017) (reversing and remanding for evidentiary hearing where court awarded permanent custody to non-offending parent and closed the case without making finding that reunification with offending parent, who substantially complied with case plan, would either endanger child or not be in child's best interest pursuant to section 39.522(3) ); see also J.G. v. Dep't of Child. & Fams., 220 So. 3d 555, 557 (Fla. 3d DCA 2017) (reiterating that offending parent is entitled to evidentiary hearing on motion for reunification); In re E.G-S., 113 So. 3d 77, 80 (Fla. 2d DCA 2013) ("To comport with due process when a child's permanent placement is at issue, a court must hold an evidentiary hearing." (citing P.P. v. Dep't of Child. & Fam. Servs., 86 So. 3d 556, 559 (Fla. 2d DCA 2012) )).

Accordingly, we reverse the order under review and remand for an evidentiary hearing.

REVERSED and REMANDED.

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

      The parties agree that Mother substantially complied with her case plan.


text:
    N.R., Mother of L.R. and I.G., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D19-0580
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 24, 2019
    James R. Jupena, of the Law Office of James R. Jupena, Altamonte Springs, for Appellant.
    Kelly Schaeffer, Appellate Counsel, Department of Children & Families, Children's Legal Services, Bradenton, for Appellee.
    Thomasina F. Moore, Statewide Director of Appeals, and Joanna Summers Brunell, of Statewide Guardian ad Litem Office, Tallahassee, for Guardian ad Litem Program.
    ON CONCESSION OF ERROR
   PER CURIAM.

Pursuant to the Department of Children and Families' Concession of Error, we reverse the trial court's February 1, 2019 final judgment for termination of parental rights and permanent commitment and disposition and remand this matter to the trial court for further proceedings. See E.A. v. Dep't of Child. & Fams. , 894 So. 2d 1049, 1052 (Fla. 5th DCA 2005).

REVERSED and REMANDED.

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


text:
    Bobby JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3425
    District Court of Appeal of Florida, First District.
    July 2, 2019
    Bobby Johnson, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . Davis v. State , 214 So. 3d 799 (Fla 1st DCA 2017).

Wetherell, Osterhaus, and Winokur, JJ., concur.


text:
    Natasha DUCALI, Appellant, v. Humberto DUCALI, Appellee.
    No. 1D17-1002
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Robert J. Slama of Robert J. Slama, P.A., Jacksonville, for Appellant.
    Michael L. Duncan of Duncan Trial & Family Law, Jacksonville; Diane L. Paull, Jacksonville Beach, for Appellee.
   Per Curiam.

The former wife appeals the trial court's orders on the former husband's motion for contempt and enforcement and its denial of her motions for rehearing. We write only to address the trial court's decision to award the former husband sole parental responsibility over educational and health care decisions for the two children. At no time did the former husband plead for a change in parental responsibility, and the issue was not tried by consent. Accordingly, the trial court abused its discretion in awarding unpled relief to the former husband. See Russell v. Russell , 240 So. 3d 890 (Fla. 1st DCA 2018) (reversing portion of the final judgment awarding the mother sole authority over daycare decisions when the mother never requested such a modification); Abbott v. Abbott , 98 So. 3d 616, 617-18 (Fla. 2d DCA 2012) (noting to grant unrequested relief is an abuse of discretion and reversible error). We reverse the portion of the order awarding the former husband unpled relief. We affirm in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED .

B.L. Thomas, Roberts, and Osterhaus, JJ., concur.


text:
    Noel Francisco Perez VALLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-895
    District Court of Appeal of Florida, Third District.
    Opinion filed July 3, 2019
    Alfonso Oviedo-Reyes, Miami, for appellant.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Crim. P. 3.850(b)(1) (providing motions under this rule must be filed within two years after the judgment and sentence become final unless "the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence"); Jules v. State, 233 So. 3d 1196, 1200 (Fla. 3d DCA 2017) (holding that a motion for postconviction relief was time-barred where defendant "failed to establish that in the exercise of due diligence he could not have ascertained the possible immigration consequences of his plea" within the requisite two-year period); see also Long v. State, 183 So. 3d 342, 346 (Fla. 2016) (holding that, to be entitled to postconviction relief based on newly-discovered evidence relating to a guilty plea, a defendant must establish: "First, the evidence must not have been known by the trial court, the party, or counsel at the time of the plea, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the defendant must demonstrate a reasonable probability that, but for the newly discovered evidence, the defendant would not have pleaded guilty and would have insisted on going to trial"); State v. Rodriguez, 990 So. 2d 600, 607 (Fla. 3d DCA 2008) (holding that "[n]either the trial court nor counsel is required to forewarn a defendant about every conceivable collateral consequence of a plea to criminal charges") (quoting Simmons v. State, 611 So. 2d 1250, 1252 (Fla. 2d DCA 1992) ).


text:
    Winfred J. ROBERTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-5105
    District Court of Appeal of Florida, First District.
    July 11, 2019
    Winfred J. Roberts, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Lewis, B.L. Thomas, and Roberts, JJ., concur.


text:
    STATE of Louisiana v. Eric Dominic NABORS
    No. 2019-KK-0567
    Supreme Court of Louisiana.
    May 28, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF OUACHITA
    Writ denied.
    CRICHTON, J., additionally concurs and assigns reasons.
    Crichton, J., additionally concurs and assigns reasons.
   I agree with the decision to deny this writ, and write separately to note that the court of appeal's action to reinstate the jury verdict was, in my view, eminently correct. As the court of appeal aptly noted in its first reversal of the trial court's grant of a JNOV in this case, the trial court ruling was an "absolute abuse of discretion." State v. Nabors , 52-163, p. 18 (La. App. 2 Cir. 7/19/18), 251 So.3d 1214, 1225, reh'g denied (8/6/18), writ denied , 18-1477 (La. 9/21/18), 252 So.3d 496. Further, because the jury's unanimous guilty verdict already withstood appellate review for sufficiency of evidence in the first instance, the trial court's underlying ruling at issue in this writ, which granted defendant's motion for a new trial, was in direct contravention to the first court of appeal ruling, made final by this Court's writ denial. Defendant was simply not entitled to another modification of the initial jury verdict on sufficiency of the evidence. Given the trial court's arguably contemptuous ruling, in my view, this trial judge may be required under the relevant code articles and canons to issue an order of self-recusal from this case with respect to resentencing of the defendant, any further direct action, and collateral review.


author: Hughes, J., would grant the writ.

text:
    BERKLEY ASSURANCE COMPANY v. Melissa WILLIS, as Parent/Guardian of Macy Lee Willis, et al.
    No. 2019-CC-511
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Writ denied.
    HUGHES, J., would grant and assigns reasons.
   Hughes, J., would grant the writ.

I do not believe an uncertain sum can be the basis for concursus. In any event, the concursus defendants can proceed by reconventional demand to ascertain the amount at issue.


author: GUIDRY, J., recused. Hughes, J., additionally concurring.

text:
    STATE of Louisiana v. Kevin JOHNSON
    No. 2019-K-259
    Supreme Court of Louisiana.
    May 28, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
    Writ denied.
   GUIDRY, J., recused.

HUGHES, J., additionally concurs and assigns reasons.

Hughes, J., additionally concurring.

Defendant argues he maintained his innocence and pointed his attorneys to two witnesses, Selena Collins and Montero Ursin, but they failed to investigate or interview these witnesses which forced defendant to accept a guilty plea. Selena Collins has now presented an affidavit indicating she was pressured to implicate the defendant.

Defendant's claims are better suited for post-conviction relief with a full evidentiary hearing.


text:
    STATE of Louisiana v. Ruffin STOKES
    2018-K-1771
    Supreme Court of Louisiana.
    May 28, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF IBERIA
    Writ denied.
    GUIDRY, CLARK, HUGHES, would grant.
    CRICHTON, J., additionally concurs and assigns reasons.
    Crichton, J., additionally concurs and assigns reasons.
   I agree with the decision to deny this writ. I write separately to note my view that this brutal armed robbery offense, which included as victims two adults and a three-year-old child, warrants a significant hard labor sentence. However, I agree with the court of appeal's remand for resentencing, though for a different reason than the court of appeal. Here, in my view, the trial judge did not comply with La. C.Cr.P. 894.1. Specifically, he failed correctly to assess applicable mitigating factors, i.e. defendant's youth (20 years old) and status as a first-time offender. In fact, contrary to clearly established jurisprudence, the trial judge deemed his youth an aggravating factor, rather than mitigating factor, emphasizing that defendant would likely commit additional crimes. Cf. State v. Knox , 425 So.2d 707, 708 (La. 1982) (recognizing "youth and first offender status" as common mitigating circumstances); State v. Walker , 414 So.2d 1245 (La. 1982) (same). Accordingly, I agree with the court of appeal that the case must be remanded for resentencing and proper assessment of all applicable 894.1 factors. See , e.g. , State v. Ladd , 14-1611 (La. 3/27/15, 164 So.3d 184 (remanding case for resentencing for trial court's failure to comply with application of 894.1 factors).


author: PER CURIAM:

text:
    STATE of Louisiana v. Labarrie Dediric WATSON
    No. 2018-KH-1953
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Applicant does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Jeffery Keith THURMAN
    No. 2018-KH-1673
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE THIRD JUDICIAL DISTRICT COURT, PARISH OF LINCOLN
   PER CURIAM:

Denied. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, his sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. His claims are also repetitive. La.C.Cr.P. art. 930.4.

Applicant has now fully litigated another application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ.


text:
    STATE of Louisiana v. George BEEBE, Jr.
    No. 2019-KK-527
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF VERMILION
    Writ denied.
    HUGHES, J., would grant and assigns reasons.
   Hughes, J., would grant the writ.

Defendant specifically alleges that according to the report of Sgt. Ryan Boutte, count 3 occurred in Acadia Parish, not Vermilion.

Louisiana Code of Criminal Procedure article 615 requires the state to prove this jurisdictional issue prior to trial. The writ application represents that the state presented no evidence on this issue, while the defendant introduced into evidence the entire report of Sgt. Boutte.

A verdict rendered in a parish without jurisdiction would be absolutely null and possibly taint the verdict on other counts. The issue of jurisdiction is required to be resolved in advance of trial to avoid leaving the door open for appeal and post-conviction relief. A stitch in time saves nine.


text:
    Yesenia PEREZ, Juanen Perez, Michelle Perez, Emilio Perez and Gladys Perez Individually and on Behalf of Bernardo Perez-Santos v. The CITY OF NEW ORLEANS, Entergy New Orleans, Inc., and Central Rock Corporation
    2019-CC-0378
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Writ denied.
    CRICHTON, J., would grant and assigns reasons.
    Crichton, J. would grant and assigns reasons.
   I would grant the writ application of Defendant Entergy New Orleans, Inc. and Audubon Nature Institute, Inc., assign the case for briefing and permit the parties' opportunity to request oral argument in compliance with La. Code Civ. P. art. 966(H).


text:
    STATE of Louisiana v. Daniel DEESE
    No. 2018-KP-1934
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES
   PER CURIAM:

Denied. Relator fails to show he was denied access to the courts by an arbitrary and unjustified enforcement of the uniform rules governing the filing of applications in the court of appeal, and thus shows no error in the court of appeal's denial of writs on technical grounds. La.C.Cr.P. art. 912.1(C).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

GUIDRY, J., recused.