author: Jay, J.

text:
    Raheem Timothy MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5215
    District Court of Appeal of Florida, First District.
    May 3, 2018
    Andy Thomas, Public Defender, and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Jay, J.

In this direct appeal from his conviction and sentence for armed carjacking and armed robbery, Morris claims that the trial court abused its discretion by admitting evidence of his flight attempt and denying his motion for new trial. Finding no abuse of discretion, we affirm without further comment. However, the state correctly concedes that Morris was illegally sentenced to life in prison for carjacking with a "weapon," which was a first-degree felony punishable by a maximum of thirty years in prison absent any allegation or jury finding that he carried a "firearm" or "deadly weapon." Accordingly, we reverse and remand for resentencing on the carjacking count.

Shortly before trial, the state amended the information to allege that Morris carried a "weapon" during the course of committing the carjacking and robbery based on concerns that the alleged weapon, a BB gun, would not be considered a firearm or deadly weapon. At trial, the jury was instructed that "[i]f you find the defendant guilty of the crime of carjacking, you must further determine beyond a reasonable doubt if 'in the course of committing the carjacking' the defendant carried some kind of weapon." The jury was given the standard definition for "weapon," but not the standard definition for "deadly weapon" and "firearm." The jury returned a verdict finding Morris guilty of carjacking and robbery as charged with the special finding that Morris carried a "weapon" during the commission of both offenses.

At sentencing, the trial court adjudicated Morris guilty and sentenced him as a prison releasee reoffender to concurrent terms of life in prison on count I (carjacking while armed with a weapon) and thirty years in prison on count II (armed robbery). After filing a timely notice of appeal, Morris filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), claiming that his conviction for carjacking with a weapon was a first-degree felony punishable by a maximum of thirty years in prison absent any allegation or jury finding that he carried a "firearm" or a "deadly weapon." By operation of rule 3.800(b)(2)(B), the motion was "deemed denied."

Section 812.133, Florida Statutes (2015), provides in pertinent part:

(2)(a) If in the course of committing the carjacking the offender carried a firearm or other deadly weapon, then the carjacking is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If in the course of committing the carjacking the offender carried no firearm, deadly weapon, or other weapon, then the carjacking is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The possession of a firearm or deadly weapon is an essential element of armed carjacking under section 812.133(2)(a). Jacobs v. State , 162 So.3d 29, 32 (Fla. 4th DCA 2014). A defendant can only be convicted of carjacking as a first-degree felony under section 812.133(2)(b) -rather than a first-degree felony punishable by life under section 812.133(2)(a) -when the information omits any allegation that the defendant was armed with a firearm or deadly weapon during the carjacking. See Deleon v. State , 66 So.3d 391, 394-95 (Fla. 2d DCA 2011) ; McClendon v. State , 689 So.2d 412, 413 (Fla. 1st DCA 1997). The maximum penalty for a felony of the first-degree is thirty years under section 775.082(3)(b), Florida Statutes (2015). See Spencer v. State , 780 So.2d 321, 322 (Fla. 1st DCA 2001) (holding that the maximum sentence for unarmed carjacking under section 812.133(2)(b) is thirty years).

Morris claims, and the state properly concedes, that he was illegally sentenced to life in prison for carjacking with a "weapon," which was a first-degree felony punishable by a maximum of thirty years in prison absent any allegation or jury finding that he carried a "firearm" or "deadly weapon." Even though section 812.133(2)(b) sets forth the punishment for unarmed carjacking when "the offender carried no firearm, deadly weapon, or other weapon," there is no crime defined for armed carjacking with such "other weapon."

Under the rule of lenity, this ambiguity in the statutory language must be resolved in the defendant's favor. See State v. Byars , 823 So.2d 740, 742 (Fla. 2002) (holding that "any ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense"). Because Morris qualified as a prison releasee reoffender, the trial court was required to sentence him to the statutory maximum of thirty years in prison. § 775.082(9)(a) 3.b., Fla. Stat. (2015). As the trial court would have discretion to impose a concurrent or consecutive sentence, we remand for a new sentencing hearing on the carjacking count. See State v. Mosley , 149 So.3d 684, 688 (Fla. 2014) (holding that a trial court may impose consecutive PRR sentences on a defendant for crimes committing during a single criminal episode); Thomas v. State , 204 So.3d 549, 550 (Fla. 1st DCA 2016) (same).

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.

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


source: Caselaw Access Project

author: EISNAUGLE, J.

license: Public Domain

text:
    Timothy Eugene BURNETT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2615
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 4, 2018
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   EISNAUGLE, J.

Appellant, Timothy Eugene Burnett, appeals his judgments and sentences in two cases, contending that the trial court erred in denying his dispositive motions to suppress a firearm discovered during a Terry stop and frisk. We agree and reverse, concluding that the officer did not have reasonable suspicion of illegal activity to justify a Terry stop.

The Terry Stop and Arrest in this Case

Appellant was arrested for possession of a firearm by a convicted felon while he was still on probation for a prior offense, and as a result, was charged with both a new law violation and a violation of his probation. Prior to entering a plea in both cases, Appellant moved to suppress the firearm, arguing that the arresting officer did not have reasonable suspicion to conduct a Terry stop.

The trial court held an evidentiary hearing where the arresting officer testified that a restaurant employee called in a tip that a customer appeared to have a gun in his waistband, but the employee "didn't know exactly what it was." The employee did not actually see a firearm, nor does the record indicate that Appellant removed or displayed a firearm in any way.

The officer responded and identified Appellant in the parking lot as the individual described by the employee. While Appellant was on his phone and standing next to his car, the officer approached and observed a "bulge" in Appellant's clothing. Believing the bulge to be a concealed firearm, the officer "began to pat [Appellant] down, at which point [Appellant] moved away and tensed up."

Upon conducting the pat-down, the officer immediately knew that the bulge was a firearm, but only determined that Appellant was a felon after the stop and frisk was completed. Likewise, the officer did not know if Appellant had a concealed weapons permit before conducting the Terry stop, and conceded that he did not observe any illegal conduct. The trial court denied Appellant's motions, and this appeal follows.

Standard of Review

"[A] trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness." Pagan v. State , 830 So.2d 792, 806 (Fla. 2002). The trial court's factual findings "will be upheld if supported by competent, substantial evidence, while the court's legal determinations are reviewed de novo." Vangansbeke v. State , 223 So.3d 384, 386 (Fla. 5th DCA 2017).

The Fourth Amendment: Terry and Suspicion of a Concealed Firearm

The Fourth Amendment guarantees the right of the people to be free from unreasonable searches and seizures. Amend. IV, U.S. Const.; see Terry , 392 U.S. at 8, 88 S.Ct. 1868. When evaluating the reasonableness of a stop and frisk, as occurred in this case, we apply the two-pronged test adopted by the United States Supreme Court in Terry . Terry , 392 U.S. at 15, 30-31, 88 S.Ct. 1868.

First, Terry established that, in order to conduct an investigatory stop consistent with the Fourth Amendment, law enforcement must have a reasonable suspicion that "criminal activity may be afoot." Id. at 30, 88 S.Ct. 1868 ; see also Saturnino-Boudet v. State , 682 So.2d 188, 191 (Fla. 3d DCA 1996) ("A Terry stop is permissible if the detention is temporary and reasonable under the circumstances and only if the police officer has a wellfounded suspicion that the individual detained has committed, is committing, or is about to commit a crime." (citing Terry , 392 U.S. at 30, 88 S.Ct. 1868 ; Reynolds v. State , 592 So.2d 1082 (Fla. 1992) ) ). Reasonable suspicion must be based on "specific and articulable facts" and not on "inchoate" "unparticularized suspicion" or mere "hunch." Terry , 392 U.S. at 21, 27, 88 S.Ct. 1868 ; see Price v. State , 120 So.3d 198, 200 (Fla. 5th DCA 2013). The required "reasonable suspicion of criminal activity may result from viewing exclusively legal activity, but it depends upon the totality of the circumstances." Regalado v. State , 25 So.3d 600, 604 (Fla. 4th DCA 2009).

"Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous." Arizona v. Johnson , 555 U.S. 323, 326-27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ; see Terry , 392 U.S. at 30-31, 88 S.Ct. 1868.

Appellant asserts that the stop and frisk in this case was constitutionally invalid under Terry 's first prong. Specifically, he argues that carrying a concealed firearm is not sufficient, without more, to justify a Terry stop, relying on the fourth district's decision in Regalado and the second district's decision in Slydell v. State , 240 So.3d 134, 2018 WL 1308889 (Fla. 2d DCA Mar. 14, 2018). We agree.

In Regalado , the court held that concealed possession of a firearm alone does not give rise to reasonable suspicion of criminal activity. 25 So.3d at 606. In that case, the state argued that officers may conduct a valid Terry stop where they observe, without more, a bulge in the defendant's clothing resembling a gun. Id. at 604. In rejecting the state's argument, the court reasoned:

Possession of a gun is not illegal in Florida. Even if it is concealed, it is not illegal if the carrier has obtained a concealed weapons permit. Although the officer observed a bulge in [the defendant's] waistband, which in his experience looked like a gun, no facts and circumstances were presented to show that [the defendant's] carrying of a concealed weapon was without a permit and thus illegal.

Id. Importantly, the Regalado court emphasized that the "tipster had not reported any illegal activity, and the officer observed no conduct which would constitute a crime or impending crime." Id.

More recently, in Slydell , the second district embraced the holding in Regalado . In that case, officers received a report from a confidential informant that the defendant was carrying a concealed firearm. 240 So.3d at 135. The officers located the defendant and observed a bulge in his pocket. Id. Based on this observation and the informant's tip, the officers searched him, found the firearm, and made an arrest. Id. Other than observation of a bulge in the defendant's clothing, the officers did not see any suspicious behavior, nor did they know that the defendant was a felon before the search. Id.

The defendant sought to suppress the firearm, arguing that it is legal to carry a concealed weapon in Florida with a permit, and that the officers therefore did not have reasonable suspicion of criminal activity. Id. The trial court denied the motion. Id. On appeal, the second district reversed, concluding that the officers did not have reasonable suspicion to conduct a Terry stop because they "did not observe any conduct that would constitute a crime or impending crime, they did not know [the defendant] was a felon," and "[w]hether [the defendant] had a concealed weapons permit, was 'a fact that an officer cannot glean by mere observation.' " Id. at at 136 (quoting Regalado , 25 So.3d at 606 ).

Despite the decisions of our sister courts in Regalado and Slydell , the State maintains that mere suspicion of a concealed firearm is enough to support a Terry stop, citing the Florida Supreme Court's decision in Mackey v. State , 124 So.3d 176 (Fla. 2013). The State's reliance on Mackey , however, is misplaced.

In Mackey , the Florida Supreme Court considered whether a police officer had reasonable suspicion to conduct a Terry stop based on a belief that the defendant was carrying a concealed firearm. While on patrol in an area known for illegal firearms and narcotics, the officer in that case observed a bulge in the defendant's pocket with "a piece of the handle sticking out." 124 So.3d at 179. Based on that observation and his training and experience, the officer identified the object as a firearm. Id. The officer approached the defendant and asked if he had anything on him, and the defendant said "no." Id. Knowing that was a lie, the officer patted the defendant down, retrieved the firearm, and arrested him for illegally carrying a concealed firearm. Id.

The defendant moved to suppress the evidence, arguing, in part, that the officer lacked a reasonable suspicion to conduct a Terry stop. Id. at 179-80. After the trial court denied his motion to suppress, he pled guilty and appealed the denial of his motion. Id. at 180. The third district affirmed, holding the officer's suspicion that the defendant was carrying a concealed firearm was by itself sufficient to justify a Terry stop and frisk, and certified conflict with Regalado . Id. at 181.

On review, the supreme court affirmed but disagreed with the third district's reasoning. Rather than basing its decision on the defendant carrying a concealed firearm, the court instead considered the totality of the circumstances, and explained:

When the person blatantly lied to the police officer here about possession of a firearm while he was in a geographic area well known for illegal narcotics and firearms with the weapon in view, we conclude that the officer had a reasonable, articulable suspicion that the person may have been engaged in illegal activity, and this brief detention to further investigate whether a crime was being committed is constitutionally valid.

Id. at 184. Thus, contrary to the State's argument, Mackey supports the proposition that, consistent with Regalado and Slydell , something more than suspicion of a concealed firearm is required to validate a Terry stop.

The Constitutionality of the Stop in this Case

In this case, the tipster did not see Appellant brandish or improperly display the firearm. Likewise, the arresting officer conceded that he did not see any illegal or threatening activity and did not know Appellant was a convicted felon. Appellant was not prowling or casing an establishment as in Terry . Unlike in Mackey , he did not lie to the investigating officer, and there is no record evidence that the stop occurred in a high-crime area known for drugs or illegal weapons. See Mackey , 124 So.3d at 184-85. The officer here did not testify that Appellant fled or otherwise acted suspiciously upon seeing law enforcement. In fact, the State cites to no evidence in the record, and we have found none, that the tipster or officer observed any furtive behavior at all.

Although we acknowledge that a Terry stop can be based upon an observation of entirely legal activity, there must be something about the circumstances, when considered in total, that reasonably raises a suspicion that a crime has been or is being committed. Indeed, reasonable suspicion could be based on the totality of any number of factual circumstances too numerous to catalog here. However, there is no such evidence in this record. Thus, given the law in Florida, and consistent with Mackey , Regalado , and Slydell , we hold that possession of a concealed firearm, without more, does not justify a Terry stop. We therefore reverse and remand with instructions for the trial court to vacate Appellant's convictions and sentences and reinstate his probation.

REVERSED and REMANDED.

PALMER and WALLIS, JJ., concur.

      Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      Regalado , 25 So.3d at 604.


author: PER CURIAM.

text:
    Antwaine J. GRAYS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3437
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 4, 2018
    Antwaine J. Grays, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Antwaine Grays appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, alleging newly discovered evidence. The alleged newly discovered evidence was the sworn statement of a fellow inmate admitting to the commission of the crimes for which Grays had been convicted. In the sworn statement, the affiant also details circumstances surrounding the alleged crimes, states that Grays had no involvement in the crimes, and sets forth reasons why the information had not been disclosed earlier. Although the trial court understandably viewed the affidavit as suspect, it was error to determine the propounded evidence to be "non-credible" without an evidentiary hearing.

We review the trial court's order de novo. Utile v. State , 235 So.3d 1045, 1048 (Fla. 5th DCA 2018). Summary denial will be upheld if the motion was either facially invalid or the claims were conclusively refuted by the record. Id.

Here, the postconviction court was tasked with considering all newly discovered evidence that would be admissible at trial and determining whether such evidence, had it been introduced at trial, would have probably resulted in an acquittal. In reaching this conclusion, the judge would necessarily have to evaluate the weight of both the newly discovered evidence and the evidence that was introduced at trial. Nordelo v. State , 93 So. 3d 178, 185 (Fla. 2012) (citing Jones v. State , 591 So.2d 911, 916 (Fla. 1991) ). As a result, these types of factual matters generally require an evidentiary hearing to allow the court to test the credibility of the newly discovered evidence "unless the affidavit is inherently incredible or obviously immaterial to the verdict and the sentence." Id. (quoting Davis v. State , 26 So.3d 519, 526 (Fla. 2009) ).

In the present case, the fellow inmate's affidavit provided evidence that would have been material to the question of whether Grays committed the charged crimes. Furthermore, the postconviction court did not find the affidavit to be "inherently incredible," nor would it have been appropriate for the court to have done so. See Simpson v. State , 100 So.3d 1258, 1260 (Fla. 4th DCA 2012) (finding that characterizing exculpatory affidavit as inherently incredible merely due to contradictory trial testimony is improper basis for summary denial of postconviction claim, as this requires credibility determinations that only evidentiary hearing can resolve). Accordingly, we reverse the trial court's summary denial order and remand for an evidentiary hearing.

REVERSED and REMANDED for evidentiary hearing.

EVANDER, LAMBERT and EDWARDS, JJ., concur.

      The affiant is serving several life sentences.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Adan ESPINOZA-BRITO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3752
    District Court of Appeal of Florida, Second District.
    Opinion filed May 9, 2018
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

This appeal was filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the revocation of Espinoza-Brito's probation and the sentence imposed, but we reverse a superfluous judgment and remand for entry of a written order of revocation of probation.

In 2011, Espinoza-Brito pleaded nolo contendere to a single third-degree felony. The trial court adjudicated him guilty and sentenced him to sixty months' probation. In 2016, he admitted that he had violated condition five of that probation by committing a new law offense. The trial court accepted his admission, determined that he had willfully and substantially violated the terms of his probation by committing the alleged offense, revoked his probation, and sentenced him to eighteen months in prison, to be served consecutively to a federal sentence that he was already serving.

Upon our independent review of the record, we affirm without further comment the revocation of Espinoza-Brito's probation and the sentence imposed. We remand, however, for the correction of two errors that are apparent on the face of the record. First, upon revocation, the trial court entered a new, superfluous judgment. Pursuant to section 948.06(2)(e), Florida Statutes (2016), "If ... probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty...." (Emphasis added.) "Thus, the circuit court only enters a judgment on a violation of probation in those instances when it withheld an adjudication of guilt, i.e., withheld judgment, at the time it originally imposed probation." Jackson v. State, 56 So.3d 65, 67 (Fla. 2d DCA 2011) (Altenbernd, J., concurring). "Entering [the same judgment] a second time in conjunction with the entry of the new written sentence[ ] is an error, correctable in an Anders proceeding, that requires the reversal of the new and superfluous written judgment[ ]." Freeman v. State, 225 So.3d 929, 930 (Fla. 2d DCA 2017).

Second, although the record supports the trial court's oral findings and its determination that Espinoza-Brito had willfully and substantially violated the terms of his probation, the trial court does not appear to have entered the requisite written revocation order-the statement on the sentencing order, "And the court having placed the defendant on probation/community control and having subsequently revoked the defendant's probation/community control," does not suffice. See Dolinger v. State, 779 So.2d 419, 421 (Fla. 2d DCA 2000) ("[T]he written sentence also indicates that Dolinger's probation was revoked. Nevertheless, the trial court erred by failing to enter a written revocation order and is directed to do so on remand."); Donley v. State, 557 So.2d 943, 944-45 (Fla. 2d DCA 1990) ("The record contains forms entitled 'Memo of Sentence of the Court' and uniform sentencing orders .... Neither the forms nor the sentencing orders are sufficient. When a court finds that a probationer has violated his probation, it must enter a formal order setting forth the conditions that it finds were violated.").

Accordingly, we reverse the superfluous, unauthorized judgment entered in September 2016 and direct that it be stricken on remand. We further direct that the trial court on remand enter a written order of revocation reflecting the condition of probation that Espinoza-Brito admitted violating.

In all other respects, we affirm.

Affirmed in part; reversed in part; remanded with instructions.

VILLANTI and SLEET, JJ., Concur.

      Espinoza-Brito need not be present for the entry of the written order. See Mitchell v. State, 238 So.3d 386, 387 (Fla. 3d DCA 2018).


text:
    Marquis LAMMONS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1864
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Marquis Lammons appeals his conviction and sentence for armed manslaughter, raising one issue. Lammons contends his conviction must be reversed because the state denigrated the defense during the rebuttal closing argument.

Lammons, after his arrest, gave a video-recorded statement where he confessed to killing the victim. His able counsel spent a good deal of his closing argument attacking the interrogation techniques law enforcement used to get the confession, and argued to the jury that the confession was coerced. In response, the state argued in its rebuttal closing:

I said the defense counsel talks about words. He tells you what a good cop would say; he tells you what the state attorney's going to say. And he uses words to make you have doubt. He says, "chained to a chair," instead of handcuffed. He says, scheming to get a confession," Instead of either of them doing their jobs, "storms out of the room," instead of "I picked up my things and walked out." It's good lawyering. It's a tactic.

Lammons objected to the trial court, and argues on appeal, that calling defense counsel's attack on the voluntariness of the confession a "tactic" improperly denigrated the defense. We tend to agree that suggesting counsel's defense theory was a good lawyering tactic was improper. See Cardona v. State, 185 So.3d 514, 523-24 (Fla. 2016) (accusing defense of using "diversionary tactics" was an improper denigration of defense counsel); Mercury Ins. Co. of Fla. v. Moreta, 957 So.2d 1242, 1251 (Fla. 2d DCA 2007) (concluding that "opposing counsel's criticism of Mercury's alleged litigation tactics and practices was not based on matters in evidence"); Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982) (reversing conviction and ordering new trial based on four instances of prosecutor misconduct, including reference to victim's tearful breakdown as "due to tactics of defense counsel"); see also Chase v. Berbary, 404 F.Supp.2d 457, 467 (W.D.N.Y. 2005) (finding improper prosecutor's closing argument that "[t]here are typical defense tactics and [defense counsel] employed them all," although concluding on habeas review that the comments did not deprive the defendant of a fair trial); People v. Manier, 197 P.3d 254, 258 (Colo. App. 2008) (finding improper denigration prosecutor's comment regarding "common defense attorney tactic[s]," although concluding the unpreserved error was not plain); People v. Adams, 127 A.D.2d 601, 511 N.Y.S.2d 548 (N.Y.1987) ("We disapprove of several of the remarks made by the prosecutor during his summation which tended to denigrate the defense counsel's trial tactics."); State v. Clemons, 82 Ohio St.3d 438, 696 N.E.2d 1009, 1023 (1998) (finding improper denigration when the prosecutor commented, "You remember the evidence you heard and I suspect I will be continually interrupted throughout this closing argument. It's kind of a tactic defense attorneys are taught," but concluding it was harmless).

We conclude beyond a reasonable doubt, however, that any error was harmless in that it did not contribute to the verdict. See Evans v. State, 177 So.3d 1219, 1234 (Fla. 2015) ("For those closing arguments where the defense objected to improper comments and the trial court erroneously overruled defense counsel's objection, we apply a harmless error test."). We find the comment did not contribute to the verdict, first, because it was isolated and made up only a small part of the closing argument. The state did not repeat the "tactic" comment before or after the objection, and did not make it a theme or feature of its rebuttal close. The remark was one word in forty-three pages of the state's closing argument. See Bailey v. State, 199 So.3d 304, 306 (Fla. 3d DCA 2016) ("While we find this comment by the prosecutor to be improper and unnecessary 'typification' of the defendant, we find that it does not rise to the level of reversible error for several reasons.... [T]he improper comment constituted an isolated occurrence during the course of the entire final argument." (citations omitted) ); Wellons v. State, 87 So.3d 1223, 1225 (Fla. 3d DCA 2012) ("Having reviewed the record, including the forty-one transcript pages of the State's closing argument, we conclude that the trial court did not abuse its discretion in denying the motion for mistrial. The isolated comment made by the prosecutor during closing, while certainly improper, was, in this case, harmless error." (footnote omitted) ).

Second, while the comment was directed at defense counsel's attack on the voluntariness of the video-recorded confession taken at the police department, there was a second, earlier confession the defendant made at the time of his arrest. The "tactic" comment did not impact the second confession and the other overwhelming evidence in the case. See Lugo v. State, 845 So.2d 74, 107 (Fla. 2003) ("A seasoned prosecutor involved in a capital case knows better than to make an improper 'Golden Rule' argument. However, because this incident was isolated, and an overwhelming amount of unrebutted evidence exists against Lugo, we determine that the error is, on this record, harmless in nature and therefore deny relief."); Williams v. State, 10 So.3d 218, 218 (Fla. 3d DCA 2009) ("The issue in this case is whether the trial court abused its discretion by overruling defense counsel's objections to statements made during the State's closing argument and denying the defendant's motions for mistrial following these statements. While we find that the statements were improper, we affirm the defendant's convictions because, based on the overwhelming evidence of guilt, the error was harmless.").

Third, the jury was properly instructed that it was not to consider the attorneys' statements as evidence. At the beginning of the case, the trial court told the jury that "[w]hat the lawyers say is not evidence, and you should not consider it as such." And, again, just before the closing arguments, the trial court reminded the jurors "that what the attorneys say is not evidence, and it is not your instruction on the law." See Zack v. State, 911 So.2d 1190, 1209 (Fla. 2005) ("Even if the admission of this evidence was error, it was harmless. The prosecutor did not argue Zack's alleged hatred of women in closing argument. Additionally, the trial court properly instructed the jurors as to the aggravating factors they could consider. Thus, even if Dr. McClaren's testimony was improperly admitted, any error would be harmless beyond a reasonable doubt." (citation omitted) );

Almeida v. State, 748 So.2d 922, 927 (Fla. 1999) (finding closing argument error harmless, in part, because the trial court instructed the jury that "what the lawyers say is neither evidence nor law").

Finally, the jury was not swayed by the state's comment given its lesser-included offense verdict. Lammons was charged with, and the state argued that he should be convicted of, second-degree murder, but the jury came back with the lesser-included offense of manslaughter. See St. Louis v. State, 985 So.2d 16, 17-18 (Fla. 4th DCA 2008) ("In affirming, our court necessarily rejected the contention that the closing argument comments evoking an appeal to sympathy were so damaging as to deprive the defendant of a fundamentally fair trial. There was copious evidence of the defendant's guilt, and the jury actually convicted him on a lesser offense than the second-degree murder with which he was charged. We conclude that any error was harmless beyond a reasonable doubt.").

We are convinced beyond a reasonable doubt the "tactic" comment did not contribute to the jury's verdict. For that reason, we affirm Lammons' conviction and sentence.

Affirmed.

      We understand that the harmless error test "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." Ventura v. State, 29 So.3d 1086, 1089 (Fla. 2010) (quotation omitted; emphasis in original). We cite the second confession and other evidence only as one factor in our conclusion that there was no reasonable possibility the "tactic" comment contributed to the verdict.


author: COHEN, C.J.

text:
    Milton Maurice WEBB, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3679
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 11, 2018
    Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, C.J.

Milton Webb was charged with trafficking in cocaine and conspiracy to commit trafficking in cocaine. Prior to his trial, Webb had at least four court-appointed attorneys. Every time the court appointed an attorney to represent him, Webb would complain and request that the attorney be discharged. The last of those occasions gives rise to this appeal; Webb contends that the trial court failed to conduct an adequate Nelson inquiry before discharging his latest court-appointed attorney.

Although Webb was arrested in 2011, the trial did not occur until 2015. Predictably, right before jury selection, Webb once again complained about his court-appointed attorney, Lerone Thurston. Webb told the court that Thurston had done "nothing [he] asked him to do," and that he "might as well take" himself to trial. Webb gave the court a letter he sent to The Florida Bar complaining about Thurston. The court inquired, "You wish to represent yourself?" and Webb responded, "I can't go with Mr. Thurston."

Despite the State's request for a Nelson inquiry, the court stated, "We're just going right into a Faretta hearing." At first blush, that response would warrant reversal for a new trial because ordinarily, the failure to conduct a preliminary Nelson inquiry is per se reversible error. See Torres v. State, 42 So.3d 910, 912 (Fla. 2d DCA 2010) ("[A] court's failure to conduct any preliminary Nelson hearing is per se error such that a harmless error test does not apply.").

However, it is apparent that from the beginning, the court's inquiry into Webb's request to represent himself "blurred the line between a Faretta hearing and a Nelson hearing, despite procedurally important distinctions between the two." See Slinger v. State, 219 So.3d 163, 164 (Fla. 5th DCA 2017). Toward the end of the Faretta hearing, Webb continued to express his dissatisfaction with Thurston, as he had done with every other attorney appointed to represent him. At that point, the court inquired of both Thurston and Webb, addressing the specific complaints Webb had raised. Webb's allegations pertained to access to discovery and three witnesses whom Webb wished to present at trial, including people heard on portions of wiretaps conducted by law enforcement.

Regarding the discovery, Thurston explained that the State had digitally produced the discovery, he placed it on his computer network, and he gave Webb access. Webb thereafter acknowledged that he had received electronic access to the documents. As to Webb's claim that Thurston had failed to contact defense witnesses, Thurston stated that he had contacted the first witness, Webb's brother Marlon. Thurston explained that Marlon was incarcerated and would not testify based on his involvement in Webb's trafficking charges. The other two witnesses Webb referenced were recorded in conversations with Webb on the wiretapped phone calls. Thurston explained that those conversations were irrelevant to Webb's charges and that, if anything, calling those witnesses would harm Webb's case. After this inquiry, the court granted Webb's request to proceed pro se.

While the court put the cart before the horse, it ultimately conducted an adequate preliminary inquiry into Webb's allegations of ineffective assistance. See Nelson, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973) (requiring trial court to inquire into defendant's reason for requesting discharge of court-appointed counsel, and if counsel's incompetency is raised, determine whether there is "reasonable cause to believe that court-appointed counsel is not rendering effective assistance"). Under Nelson, the court should have then made a finding as to whether Thurston was providing effective representation. See Milkey v. State, 16 So.3d 172, 175 (Fla. 2d DCA 2009) (citing Burgos v. State, 667 So.2d 1030, 1032 (Fla. 2d DCA 1996) ). In addition, the court should have informed Webb that the State was not obligated to appoint substitute counsel if he chose not to proceed with Thurston. See Nelson, 274 So.2d at 259 ("If no reasonable basis appears for a finding of ineffective representation, the trial court should ... advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute."). Here, the court failed to expressly comply with these requirements.

Nonetheless, although the court did not explicitly find that Thurston was competent, that finding was implicit in its subsequent granting of Webb's request for self-representation. Moreover, this Court has previously held that the failure to inform a defendant that the State is not required to appoint substitute counsel can constitute harmless error. Sweat v. State, 895 So.2d 462, 465 (Fla. 5th DCA 2005). Here, the court inquired into Webb's allegations, presumably determined the allegations lacked merit, and thereafter told Webb that he could proceed with Thurston or proceed pro se. Notably, Webb never sought new court-appointed counsel; instead, he immediately sought to proceed pro se or to continue the trial to secure private counsel. Cf. Evans v. State, 741 So.2d 1190, 1191 (Fla. 4th DCA 1999) (holding Nelson hearing unnecessary when defendant seeks to discharge court-appointed counsel and hire private counsel); Augsberger v. State, 655 So.2d 1202, 1205 (Fla. 2d DCA 1995) (finding that defendant has obligation to specifically request substitute counsel in order to trigger Nelson requirement). Therefore, on the facts of this case, any error in failing to inform Webb that the State was not obligated to appoint substitute counsel was harmless. Accordingly, we affirm.

AFFIRMED.

WALLIS and EISNAUGLE, JJ., concur.

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

      See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The adequacy of the Faretta hearing is not at issue in this appeal.

      Portions of the wiretaps included inculpatory conversations between Webb and his brother.

      Thurston stated, "And there's-there's no way the Defense would go and play all those other non-related phone calls, because all it would do is convince the jury that that was indeed Mr. Webb's phone that he's doing all his personal business on as well as whatever the State is alleging [trafficking in cocaine]."


author: CASANUEVA, Judge. MAKAR, SCOTT, Associate Judge, Concurring.

text:
    Kevin WILLIAMS, a/k/a Kiven Lamont Williams, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-575
    District Court of Appeal of Florida, Second District.
    Opinion filed May 11, 2018
    Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Kevin Williams appeals his judgments for kidnapping, domestic battery by strangulation, and tampering with a witness. Relying on three cases from the First District Court of Appeal, he argues that the trial court erred in denying his motion to dismiss the charge of tampering with a witness because the State failed to prove that the victim was attempting to contact law enforcement at the time of the incident. See McCray v. State, 171 So.3d 831, 833 (Fla. 1st DCA 2015) ; Thompson v. State, 153 So.3d 996, 997 (Fla. 1st DCA 2015) ; Longwell v. State, 123 So.3d 1197, 1198 (Fla. 1st DCA 2013). However, Mr. Williams acknowledges that in McCloud v. State, 224 So.3d 842 (Fla. 2d DCA), review granted, No. SC17-1750, 2017 WL 5496024 (Fla. Nov. 16, 2017), this court held that to prove the offense of witness tampering, the State was not required to show that the victim was attempting to contact law enforcement when the incident occurred, and this court certified conflict with McCray.

In accordance with McCloud, we conclude that the trial court correctly denied the motion to dismiss in this case, because the State was not required to prove that the victim was attempting to contact law enforcement at the time of the incident. We note that there are important factual distinctions between McCloud and the above cited First District Court of Appeal cases; nonetheless, to the extent those cases hold that in all cases of witness tampering, the State is required to prove that the victim was attempting to contact law enforcement at the time of the incident, we again certify conflict.

Section 914.22(1), Florida Statutes (2015), defines the offense of tampering with a witness as follows:

A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:
....
(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding; ...
....
commits the crime of tampering with a witness, victim, or informant.

Pursuant to the language of section 914.22(1)(e), the accused must have the intent to influence a witness's decision to contact law enforcement. In Longwell, 123 So.3d at 1197, the victim testified that she and the appellant were in a physical altercation and that her cell phone was broken during the altercation, but she believed the phone broke when she dropped it. In her initial statement to the police, which was entered into evidence, she alleged that the appellant took her cell phone and smashed it on the ground. In Longwell, there was no allegation that the appellant ever threatened to harm the victim or otherwise used intimidation or physical force to influence her decision to call law enforcement.

The First District examined the language of section 914.22(1)(e) and held that there was insufficient evidence to prove the offense of witness tampering because the victim denied calling 911 and there was no evidence that the victim otherwise was attempting to contact law enforcement when her cell phone was broken. Id. at 1198. The court noted that the State candidly indicated that the evidence "did not establish a prima facie case of guilt as to the tampering charge." Id.

We agree with the conclusion in Longwell that the State in that case did not establish the offense of witness tampering as it is defined in section 914.22(1)(e), where there was no evidence that the appellant had the intent to influence the victim's decision to contact law enforcement. The appellant's act of taking the victim's cell phone and smashing it on the ground could not be construed as an attempt to "[h]inder, delay, or prevent the communication to a law enforcement officer" where there was no evidence that she ever tried or intended to communicate with a law enforcement officer. See § 914.22(1)(e). The requirements of subsection (e) were clearly not met in that case, and the Longwell court correctly held that there was insufficient evidence as to an essential element of the crime. 123 So.3d at 1198. Simply put, the only manner in which the State could have proven the charge of witness tampering in Longwell would have been to establish that the victim attempted to call law enforcement and that the appellant had the intent to hinder, delay, or prevent her from doing so when he broke her cell phone.

Similarly in McCray, 171 So.3d at 832, the victim testified that she and the appellant were in a physical altercation, and during the altercation, the appellant broke her cell phones when the victim tried to use them. However, the victim never told the appellant that she was going to call 911 or law enforcement, and she testified during trial that she was "trying to call somebody," not that she was trying to call law enforcement. Id. Similar to Longwell, there is no indication that the appellant ever threatened the victim in any way in an attempt to hinder, delay, or prevent her from contacting law enforcement.

Citing Thompson, the First District again held that the State was required to prove "that the victim was attempting to contact law enforcement during the time of the incident to support a conviction under this statute." Id. (citing Thompson, 153 So.3d at 997 ). We note that, as in Longwell, the only way the State could have proven the charge of tampering with a witness in McCray would have been to establish that the appellant's action in breaking the cell phones was an attempt to "[h]inder, delay, or prevent the communication to a law enforcement officer" because there was no other evidence establishing the requirements of section 914.22(1)(e).

The case at bar is distinguishable from Longwell and McCray. Here, the State's traverse alleged that after beating the victim, Mr. Williams asked the victim to promise him that she would not go to the police and he threatened to shoot her if she did so. Therefore, unlike Longwell and McCray, Mr. Williams knowingly threatened the victim with the intent to hinder, delay, or prevent her from communicating with law enforcement.

Similarly, the appellant in McCloud, 224 So.3d 842, acted with the intent to prevent the victim from communicating with law enforcement. In that case, the appellant pushed the victim a few times in their bedroom. Id. at 843. When the appellant left the bedroom, the victim yelled for her daughter to call for help. The appellant returned to the bedroom with a gun and threatened to kill the victim if she ever took the children from him. The appellant then left the bedroom and approached the daughter, who was standing in a hallway outside of the bedroom. Id. The appellant took the daughter's cell phone out of her hand and stated: "You can't call the cops on me. You can't get my kids to call the cops on me." Id. at 844. The appellant also took the victim's cell phone and threw it to the ground, causing the battery to fall out. Id.

In McCloud, this court held that section 914.22(1)(e) requires "the State to prove that the accused knowingly took some action with the intent to hinder, delay, or prevent the witness from communicating information to law enforcement 'relating to [not during] the commission or possible commission of an offense.' " Id. at 846 (alteration in original) (quoting § 914.22(1)(e) ). This court concluded that there was competent, substantial evidence establishing that the appellant "knowingly used physical force, intimidation, or a threat with the intent to hinder or prevent a communication by either the victim or the older daughter to law enforcement regarding the assault and battery." Id.

McCloud is clearly distinguishable from McCray and Thompson because there was evidence of the appellant's intent to hinder or prevent either the victim or her daughter from communicating with law enforcement, as he specifically stated: "You can't call the cops on me. You can't get my kids to call the cops on me." Id. at 844. In McCray and Thompson, the appellants made no similar statements. Nonetheless, this court certified conflict with McCray, because it interpreted the holding in that case to specifically require the State to prove that the victim was making an attempt to contact law enforcement at the time of the incident. Id. at 845-46.

The Fourth District recently agreed with the reasoning in McCloud. In Taffe v. State, 232 So.3d 431, 433 (Fla. 4th DCA 2017), the appellant and his codefendant threatened the victim that they would kill him and his family if he ever spoke to the police. The Fourth District held that "there is simply nothing within the plain language of the witness tampering statute requiring the State to prove the witness was attempting to contact law enforcement when the threat was made." Id. at 434. Similar to McCloud, the facts in Taffe are clearly distinguishable from McCray and Thompson, where the appellants made no similar threats. We note that McCloud and Taffe fail to address the fact that in McCray and Longwell, the State was required to prove that the victims were attempting to contact law enforcement when the appellants took their cell phones, as there was no other evidence in those cases that the appellants committed some act or made some statement indicating an intent to hinder, delay, or prevent the victims from contacting law enforcement.

We follow the holding in McCloud and affirm. To the extent that McCray holds that in every case of witness tampering, the State must prove that the victim was attempting to contact law enforcement when the accused attempted to intimidate, use physical force, or threaten another person, we again certify conflict with McCray.

Affirmed; conflict certified.

BLACK, J., Concurs.

MAKAR, SCOTT, ASSOCIATE JUDGE, Concurs with opinion.

MAKAR, SCOTT, Associate Judge, Concurring.

I fully concur but note that as a visiting judge, I necessarily wear the home team's jersey and thereby agree with my Second District colleagues to certify conflict in this case with McCray v. State, 171 So.3d 831 (Fla. 1st DCA 2015), a decision of my native court. See Hauer v. Christon, 43 Wis.2d 147, 168 N.W.2d 81, 82 (1969) ("We think a judge on such an assignment is bound by the local rules and should, when in Rome, do as the Romans do."); see also Bonstingl v. Md., N.A., 662 F.Supp. 882, 885-86, 886 n.2 (D. Md. 1987) ("In short, it is a part of the common knowledge of a reasonable person that he or she must follow the maxim, 'When in Rome, do as the Romans do,' " which is "classically stated, 'Si fueris Romae, Romano vivito more; si fueras alibi, vivito sicut ibi.' St. Ambrose (c. 340-397)."), aff'd, 841 F.2d 1122 (4th Cir. 1988). Stated differently, "should you be in the Second District, live in the Second District's manner; should you be elsewhere, live as they do there."

      Section 914.22(1) lists other acts that constitute witness tampering; however, those acts have not been alleged in this case.

      The opinion in Thompson v. State, 153 So.3d 996 (Fla. 1st DCA 2015), did not discuss the facts presented at trial.


author: SALARIO, Judge.

text:
    Alvin ARTEAGA, DOC# H29353, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-2500
    District Court of Appeal of Florida, Second District.
    Opinion filed May 11, 2018.
    Ita M. Neymotin, Regional Counsel, Second District, and Stacy L. Sherman, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   SALARIO, Judge.

Alvin Arteaga appeals from a final order denying his motion and amended motion for postconviction relief. Some of the claims in these motions were denied after an evidentiary hearing, while others were denied summarily. We affirm the denial of all but one claim without comment. We reverse the summary denial of a single claim for ineffective assistance of counsel based on trial counsel's conduct with respect to a jury instruction on the offense of manslaughter that allegedly omitted any discussion of justifiable and excusable homicide.

Following the death of his infant son, Mr. Arteaga was charged with and convicted of aggravated manslaughter by culpable negligence and aggravated neglect of a child. In his amended motion for postconviction relief, Mr. Arteaga raised a claim (claim four) in which he argued that his counsel was ineffective for failing to object to the omission of the justifiable and excusable homicide portions of the manslaughter jury instruction, which he asserted provided a viable defense in his case. The complete homicide instructions would have informed Mr. Arteaga's trial jury (1) that he could not be guilty of manslaughter if the homicide was either justifiable or excusable; (2) that a homicide is justifiable if "done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was"; and (3) that a homicide is excusable if committed by accident or misfortune while doing a lawful act by lawful means, while in the heat of passion, or while in sudden combat under certain circumstances. See Fla. Std. Jury Instr. (Crim.) 7.1 (providing the justifiable and excusable homicide instruction to be read in all homicide cases), 7.7(a) (providing the justifiable and excusable homicide instruction to be read for manslaughter charges); see also §§ 782.02, .03, Fla. Stat. (2007).

In support of his claim, Mr. Arteaga alleged that his trial counsel "agreed to" the incomplete manslaughter instruction but that he was unaware that the instruction to be given was incomplete and further "was unaware that said instruction applied in this case." As a result, Mr. Arteaga alleges that he was denied a valid defense. The postconviction court summarily denied this claim because it concluded that the claim asserted only an alleged "trial court error" that must be raised "if at all, on direct appeal." The postconviction court's order neither considered whether the record conclusively refuted the claim nor attached any portions of the record that conclusively refuted it. See Fla. R. Crim. P. 3.850(f)(4) (requiring that trial court attach portions of record showing that any postconviction claim is conclusively refuted).

Mr. Arteaga argues on appeal that his motion set forth a facially sufficient claim of ineffective assistance of counsel that was not conclusively refuted by the record and, therefore, that the trial court erred in summarily denying it. We review the summary denial of a rule 3.850 motion de novo. Conley v. State, 226 So.3d 358, 360 (Fla. 2d DCA 2017). The summary denial of claim four was appropriate if the claim, after an opportunity to amend, was facially insufficient or conclusively refuted by the record. See Fla. R. Crim. P. 3.850(f)(3), (4) ; see also Peede v. State, 748 So.2d 253, 257 (Fla. 1999). The postconviction court did not conclude that the claim was conclusively refuted by the record, so the only issue here is whether it was facially sufficient. In answering that question, we accept Mr. Arteaga's allegations as true to the extent they are not refuted by the record. See Jennings v. State, 123 So.3d 1101, 1121 (Fla. 2013).

The postconviction court correctly stated that claims of trial court error are ordinarily remediable on direct appeal and thus not cognizable in a motion for postconviction relief under rule 3.850. See Bruno v. State, 807 So.2d 55, 63 (Fla. 2001) ; Sampson v. State, 845 So.2d 271, 272 (Fla. 2d DCA 2003). Conversely, it is also true that claims of ineffective assistance of counsel are generally unsuited for resolution in a direct appeal and should instead be brought in a motion for postconviction relief under rule 3.850. See, e.g., Cowan v. State, 725 So.2d 1153, 1154 (Fla. 2d DCA 1998). The manner in which the postconviction court applied these principles to this case is not clear. Its order may mean that it decided one or both of two things. It could have decided that as pleaded, Mr. Arteaga framed his claim concerning the incomplete manslaughter instruction as one of trial court error rather than as one of ineffective assistance of counsel. It could also have decided that regardless of how Mr. Arteaga framed his claim, the giving of an incomplete manslaughter instruction was a trial court error that could only have been raised on direct appeal. See Corzo v. State, 806 So.2d 642, 644 (Fla. 2d DCA 2002) (distinguishing between issues that might have been raised on direct appeal and those that might or might not also be raised as postconviction ineffective assistance claims). Either possibility is mistaken.

The possibility that Mr. Arteaga did not sufficiently plead the elements of a claim of ineffective assistance is not supported by a reading of his amended motion for postconviction relief. That motion may not be the most precise one ever drafted, but it plainly pleaded a claim of ineffective assistance related to the manslaughter instruction. It begins with an overarching discussion of the ineffective assistance requirements of deficient performance and prejudice and then recites four claims that it explicitly ties to those legal standards. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (identifying deficient performance and prejudice as the elements of a claim for ineffective assistance). The fourth claim-the one that concerns the manslaughter instruction-says in substance that Mr. Arteaga's counsel agreed to the incomplete instruction without knowing either what he was doing or that an incomplete instruction was being read and that the result was to deny him a valid defense. It is clear from the face of the motion, then, that Mr. Arteaga was pleading a claim that counsel's performance was deficient because he allowed the trial court to deliver a manslaughter instruction that did not contain the justifiable and excusable homicide portions of the manslaughter charge and that he was prejudiced as a result because he was denied jury consideration of a valid defense.

The possibility that Mr. Arteaga's claim could only be one of trial court error that could be raised only on direct appeal is not supported by the law. The applicable precedents, and those cited by Mr. Arteaga in his motion, recognize at least two situations in which a trial court's failure to instruct a jury on justifiable and excusable homicide in a case involving a charge of manslaughter may be remediable through a rule 3.850 postconviction motion based on ineffective assistance of counsel. The first is where no instruction is given and the evidence at trial would have supported a defense of justifiable or excusable homicide. The second is where no instruction is given and the defendant is actually convicted of manslaughter or a greater offense only one step removed from manslaughter (and an exception does not apply).

Analysis begins with our decisions in Spaziano v. State, 522 So.2d 525 (Fla. 2d DCA 1988), and Tobey v. State, 533 So.2d 1198 (Fla. 2d DCA 1988) (en banc). In Spaziano, a defendant convicted of first-degree murder appealed from the denial of a rule 3.850 motion alleging that his trial counsel was ineffective for failing to object to a manslaughter charge that did not include justifiable and excusable homicide. 522 So.2d at 525. The shooting occurred during a confrontation between the defendant and the victim. Id. at 526. There was evidence that the victim had threatened and harassed the defendant, that the victim had been using illegal drugs on the day of the shooting, and that the victim was known to carry a gun. Id. The defendant testified that he was extremely fearful at the time of the confrontation and that he shot the victim by accident, not knowing that the gun was loaded at the time. Id.

We reversed the denial of the defendant's rule 3.850 motion on two grounds. First, we held that "[b]ased upon the evidence at trial and the defense's theory of excusable homicide, it was incumbent on the trial court to give a full and accurate jury instruction on excusable homicide." Id. Second, we held that "when a manslaughter instruction is given, it is necessary that the complete definition of justifiable and excusable homicide be included as a part of the manslaughter instruction." Id. For that proposition, we relied on our decision in Alejo v. State, 483 So.2d 117, 118 (Fla. 2d DCA 1986), which held that because manslaughter is statutorily defined as a killing that is not justifiable or excusable homicide, instructions on justifiable and excusable homicide must be given as a part of any manslaughter charge. Id. On both scores, we held that the trial court's failure to give a complete manslaughter instruction at the defendant's trial was fundamental error in the sense that it could have been remedied on direct appeal even absent an objection in the trial court. Spaziano, 522 So.2d at 526-27.

From there, we concluded that trial counsel's failure to object to the instruction "was an unreasonable omission which severely prejudiced his client's case inasmuch as the error complained of negated the only defense put forth by trial counsel." Id. at 527. Even though the error was fundamental, and thus could have been corrected on direct appeal without regard to preservation, we held that a rule 3.850 ineffectiveness claim was nonetheless proper. "Notwithstanding the fact that Spaziano's appellate counsel could have and should have brought this to our attention on direct appeal, for which error he can be labeled ineffective too, these errors should have been corrected at the rule 3.850 hearing." Id.

Several months after we decided Spaziano, we decided Tobey as an en banc court. There, a defendant who had been convicted of first-degree murder appealed from an order summarily denying a rule 3.850 motion alleging that his trial and appellate counsel had been ineffective for failing to object to a manslaughter charge that omitted the justifiable and excusable homicide instructions. 533 So.2d at 1198. In that case, the record established that the defendant's excusable and justifiable homicide defenses to first-degree murder had not been negated by the failure to include excusable and justifiable homicide in the manslaughter instruction because a complete instruction on excusable and justifiable homicide was later given in addressing those defenses specifically. Id. at 1200. Relying on Spaziano, however, the defendant also argued that he was entitled to relief on a rule 3.850 motion alleging ineffective assistance because any jury charge on manslaughter must include the excusable and justifiable homicide instructions since manslaughter is defined as being a homicide that is not excusable or justifiable. See id. at 1198-99.

We took the case as an en banc court to correct that aspect of Spaziano-its statement that any failure to object to an incomplete manslaughter instruction always can be remedied on a rule 3.850 ineffectiveness motion as a fundamental error-and affirmed the summary denial of the defendant's motion after considering his ineffective assistance claim under that correction. Id. at 1198-1200. We reasoned that manslaughter was a lesser included offense that is two steps removed from first-degree murder and that supreme court precedent makes clear that it is not fundamental error to "fail[ ] to give jury instructions for an offense which is two steps removed from the offense resulting in conviction." Id. at 1199 (citing State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978) ). We therefore receded "from the portion of Spaziano that can be read to mean that it is fundamental error to give an incomplete instruction on manslaughter by failing jointly to give an accurate instruction on justifiable and excusable homicide where the defendant is convicted of first degree murder." Id. (relying on Banda v. State, 536 So.2d 221 (Fla. 1988) ). Tobey reasoned that the failure to object to the incomplete manslaughter instruction, where not fundamental, was also not prejudicial. Id. Because the defendant in Tobey was convicted of first-degree murder, it was not fundamental error for the trial court to fail to give a complete manslaughter instruction, and relief by way of a rule 3.850 ineffective assistance of counsel claim was not available to him on that basis because he could not establish prejudice. See id. at 1199-1200.

Our opinion in Tobey also said that "[w]e adhere to that part of Spaziano, however, which holds that Spaziano's trial counsel was ineffective for failing to object to an erroneous instruction on the defense of justifiable and excusable homicide where evidence was presented to support that defense." Id. at 1199. This was because "[t]he failure to give an instruction on a defense encompassed within the evidence is fundamental error." Id. at 1200. This aspect of Spaziano, however, was not implicated by the facts in Tobey because the jury received an instruction on justifiable and excusable homicide as a defense to first-degree murder and its lesser included offenses. Id. What ultimately emerges from Spaziano and Tobey, then, is a core holding that (1) it is fundamental error remediable in a rule 3.850 ineffectiveness claim to fail to instruct a jury on a defense of excusable or justifiable homicide in a case where the evidence supports it and (2) it is not fundamental error, and therefore not prejudicial for the purposes of a rule 3.850 ineffectiveness claim, to fail to include justifiable and excusable homicide in a manslaughter instruction when the defendant is convicted of a greater offense two or more steps removed from manslaughter.

After we decided Spaziano and Tobey, the supreme court held that it is fundamental error for a trial court to fail to include instructions on excusable and justifiable homicide in a manslaughter charge when, in contrast to the circumstances in Tobey where the offense of conviction was two steps removed from manslaughter, a defendant is convicted of manslaughter or a greater offense only one step removed. See State v. Lucas, 645 So.2d 425, 427 (Fla. 1994) (recognizing, with one exception, that "failure to give a complete instruction on manslaughter ... is fundamental error ... where the defendant has been convicted of either manslaughter or a greater offense not more than one step removed, such as second-degree murder"), receded from in part by State v. Spencer, 216 So.3d 481 (Fla. 2017) (affirming Lucas but recognizing a second exception to its holding). The reasoning in Lucas is, distilled to essentials, the reasoning of Spaziano-namely, that because manslaughter is defined by not being either excusable or justifiable homicide, it is necessary for a manslaughter charge to instruct on those items. See Rojas v. State, 552 So.2d 914, 916 (Fla. 1989) ("As in Spaziano..., the total omission of any reference to justifiable or excusable homicide in the definition of manslaughter was fatal."). Supreme court precedent also holds that the rule that a trial court fundamentally errs when it fails to give a complete manslaughter instruction and the defendant is convicted of manslaughter or a greater offense one step removed is subject to two exceptions: (1) where the defendant concedes that the homicide is not excusable or justifiable, Spencer, 216 So.3d at 486, and (2) where the defendant affirmatively agrees to or requests the erroneous instruction, Lucas, 645 So.2d at 427.

Our decisions in Spaziano and Tobey explicitly link the question of whether trial counsel's failure to object to an incomplete manslaughter instruction is remediable in a rule 3.850 ineffectiveness claim to the question of whether the underlying instruction constituted fundamental error. Thus, under those decisions, a failure to object to an incomplete instruction where the defendant is convicted of manslaughter or a greater offense one step removed-the failure to give such an instruction being fundamental error-is remediable in a rule 3.850 ineffectiveness motion unless one of the two exceptions mentioned above applies. See Woody v. State, 27 So.3d 745, 746 n.3 (Fla. 4th DCA 2010) (holding that claim of ineffective assistance based on failure to object to incomplete manslaughter instruction could be raised in a rule 3.850 ineffectiveness claim notwithstanding the State's contention that it was a claim of trial court error). As a result, a failure to object to the omission of justifiable and excusable homicide instructions in a manslaughter case is remediable under rule 3.850 based on ineffective assistance of counsel-assuming that deficient performance is pleaded and shown-where (1) the trial evidence implicates a defense of excusable or justifiable homicide or (2) the defendant is convicted of manslaughter or an offense one step removed, the manslaughter jury instruction does not explain justifiable and excusable homicide, and neither of the two exceptions to the rule that fundamental error occurs in these circumstances is applicable.

Here, the allegations of claim four of Mr. Arteaga's rule 3.850 motion implicate each of these two circumstances. First, the motion alleges that trial counsel's failure to ensure that he received an instruction on justifiable and excusable homicide denied him a valid defense to the aggravated manslaughter offense with which he was charged. Reasonably understood, this allegation implicates the notion that the trial evidence would have supported a defense of excusable or justifiable homicide. Second, the motion asserts that he was actually convicted of manslaughter, such that the failure to give a complete instruction would necessarily be remediable in a rule 3.850 ineffective assistance motion unless an exception applies. To be sure, the motion also alleges that Mr. Arteaga's counsel "agreed to" the instruction that was given, which might suggest that an exception applies. But that allegation was qualified by assertions that counsel did not know that the instruction was incomplete and that counsel did not know the instruction applied, which suggests that counsel's agreement was akin to a mere failure to object-or at least something short of the affirmative agreement or request that the supreme court has held is necessary to take the administration of an incomplete manslaughter instruction out of the realm of fundamental error. See Spencer, 216 So.3d at 488. As such, Mr. Arteaga's motion sufficiently alleged a claim of ineffective assistance of counsel that could not be regarded solely as a claim of trial court error remediable only on direct appeal. It was error for the postconviction court to fail to address Mr. Arteaga's claim as one of ineffective assistance of counsel.

One final word. We recognize that Spaziano and Tobey hinged on whether the failure to instruct a jury on excusable and justifiable homicide in a case involving manslaughter constituted fundamental error. We also recognize that our more recent cases call into question whether and to what extent the characterization of an error as fundamental in the sense that it can be raised on direct appeal notwithstanding a failure to object in the trial court matters at all to whether that error is remediable in a rule 3.850 motion alleging ineffective assistance and that those cases have not necessarily spoken with a single voice on the subject. Compare, e.g., Johnson v. State, 120 So.3d 629, 632 (Fla. 2d DCA 2013) (holding that a trial court's fundamental error in relying on an impermissible sentencing factor could be raised in a rule 3.850 ineffective assistance motion, even though it could have been but was not raised on direct appeal, because "the fact that a claim of trial court error was or could have been raised on direct appeal does not bar a claim of ineffective assistance that arises from the same facts"), with Hughes v. State, 22 So.3d 132, 135 (Fla. 2d DCA 2009) (stating, in dictum, that an ineffective assistance claim should not be raised with an allegation that it is a matter of fundamental error because, in such circumstances, "the defendant essentially invites the trial court ... to dismiss the claim as one that could and should have been resolved on direct appeal"). It is not necessary-nor, given our sparse summary postconviction record, is it advisable-that we wander into that thicket here. Spaziano and Tobey address the specific error that is alleged in claim four of Mr. Arteaga's amended motion and command the conclusion that error is cognizable in a rule 3.850 ineffective assistance proceeding in the circumstances we have identified. Unless and until we recede from those precedents, they control the consideration of the issue in cases like this one.

Accordingly, while we affirm in all other respects, we reverse the postconviction court's order insofar as it summarily denied claim four of Mr. Arteaga's amended motion for postconviction relief without considering it as a claim of ineffective assistance of counsel. We remand for such further proceedings as are not inconsistent with this opinion. If the record conclusively refutes any claim that Mr. Arteaga is entitled to relief, the postconviction court remains free to summarily deny the claim provided that it attaches to its order the appropriate portions of the record. Otherwise, the postconviction court should conduct an evidentiary hearing on claim four.

Affirmed in part; reversed in part; remanded.

NORTHCUTT and BLACK, JJ., Concur.

      Because we have only a limited postconviction record, we cannot tell for certain whether the facts of the case or the defense he presented would have implicated either justifiable or excusable homicide. Based on the nature of the charges and age of the victim, it seems most likely that the accidental death portion of the excusable homicide instruction, if anything, would have been at issue here.

      To the extent that the law might recognize other circumstances in which an alleged failure to instruct a manslaughter jury on justifiable and excusable homicide might be remediable in a rule 3.850 ineffectiveness claim-a matter upon which we express no opinion-we note that claim four does not purport to allege any.


text:
    Jose RODRIGUEZ, etc., Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 3D17-272
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018 Rehearing Denied July 2, 2018
    Jacobs Keeley, PLLC, and Bruce Jacobs and Court Keeley, Miami, for appellant.
    Liebler, Gonzalez & Portuondo, and Dora F. Kaufman, Miami, and Alan Michael Pierce, for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See HSBC Bank USA, Nat'l Ass'n v. Buset, 43 Fla. L. Weekly D305, 241 So.3d 882, 2018 WL 735265 (Fla. 3d DCA Feb 7, 2018).


text:
    TM WIRELESS COMMUNICATION SERVICES, INC., Appellant, v. ALL COMMERCE, INC., Appellee.
    Nos. 3D17-1529 & 3D16-2205
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Mesa & Associates and Manuel Arthur Mesa, Miami, for appellant.
    Wermuth Panell & Ortiz PLLC and J. Michael Wermuth, Miami, and Andres R. Cordova, for appellee.
    Before SUAREZ, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

This case arises out of a dispute over the sale of cellular telephones from a reseller to a distributor in Latin America. All Commerce, Inc., the reseller, sued TM Wireless Communication Services, Inc., the distributor, for breach of contract for failing to pay for the telephones All Commerce shipped to TM Wireless. TM Wireless countersued for breach of a joint venture agreement, breach of contract, and fraudulent inducement. TM Wireless appeals the trial court's summary judgment in favor of All Commerce on all claims, and the award of attorney's fees to All Commerce. We affirm in part, and reverse in part.

Factual Background and Procedural History

All Commerce approached TM Wireless about buying Nextel Hunwei models U5300 and U6020 cellular telephones. TM Wireless was interested because these telephones had a transferable Nextel SIM card and push-to-talk feature, which allowed the telephone to work similar to a "walkie-talkie" with anyone else on the Nextel network.

All Commerce gave two sample telephones, one for each model, for TM Wireless to test and "confirm the agreement based on sample approval." TM Wireless tested them in the United States, and then sent them for testing to a potential customer in South America. For both tests, the telephones worked.

Based on the samples, TM Wireless agreed to buy the telephones. When TM Wireless received the first shipment, however, the telephones were locked-they would not accept the SIM card. All Commerce agreed to unlock the telephones and had them shipped to its service center.

Once the telephones were unlocked, TM Wireless distributed them to retail customers in South America. The push-to-talk function, however, did not work. Throughout April 2013, the parties tried to resolve the problems with the telephones, but by May TM Wireless determined the problems could not be fixed.

TM Wireless paid All Commerce all but $80,923.35 of the total amount invoiced for the telephones. After All Commerce refused to take the telephones back, TM Wireless sold the remaining phones at $26.25 each for a total of $183,225. All Commerce then filed the instant action against TM Wireless to recover the remaining balance on their invoices. TM Wireless responded with affirmative defenses and a counterclaim alleging that the agreement to sell the telephones was a joint venture between the two companies, and not a sales contract as alleged by All Commerce, and All Commerce breached the joint venture agreement. Alternatively, TM Wireless claimed, even if the agreement was a sales contract, All Commerce breached first when it shipped telephones that did not conform to the samples, and All Commerce fraudulent induced TM Wireless to enter into the sales contract. TM Wireless pleaded its fraudulent inducement and first-breach claims both as affirmative defenses to All Commerce's complaint, and as counterclaims.

The parties filed two rounds of cross-summary judgment motions. In the first round, the focus was TM Wireless's counterclaim that the agreement between the parties was a joint venture (instead of a sales contract) that All Commerce breached. The trial court granted All Commerce's motion and denied TM Wireless's.

In the second round, All Commerce moved for summary judgment on its breach of contract claim. TM Wireless opposed All Commerce's entitlement to summary judgment based on its affirmative defenses alleging fraudulent inducement and a first breach by All Commerce of the sales contract. TM Wireless also moved for summary judgment on its amended counterclaim on the same claims. Thus, at this stage of the proceedings, the issues before the trial court were whether: (1) there were no genuine issues of material fact on All Commerce's claim of breach of the sales contract; and (2) TM Wireless's affirmative defenses and counterclaims of fraudulent inducement and first breach by All Commerce precluded entry of judgment in favor of All Commerce. The trial court granted All Commerce's motion for summary judgment, and entered judgment for All Commerce for the $80,923.35 TM Wireless had not paid for the shipped telephones. This is TM Wireless's appeal from the trial court's judgment.

Standard of Review

"The party moving for summary judgment must show that there are no disputed issues of material fact and that it is entitled to judgment as a matter of law. In addition, a plaintiff moving for summary judgment must refute the nonmoving party's affirmative defenses." Cerron v. GMAC Mortg., LLC, 93 So.3d 456, 457 (Fla. 2d DCA 2012). "Our standard of review is de novo, and we view the facts in the light most favorable to ... the non-moving party below." Juarez v. New Branch Corp., 67 So.3d 1159, 1160 (Fla. 3d DCA 2011).

Discussion

TM Wireless contends that the trial court erred in finding no genuine issue of material fact that: (1) the agreement between the parties was a sales contract rather than a joint venture (Count I of TM Wireless's counterclaim); (2) All Commerce did not fraudulently induced TM Wireless to enter into the contract (TM Wireless's First Affirmative Defense to Complaint); and (3) All Commerce did not breach the sales contract first by providing nonconforming telephones (TM Wireless's Second Affirmative Defense to Complaint). We affirm the part of the trial court's judgment finding no genuine issue of material fact that the agreement was not a joint venture, and All Commerce did not fraudulently induce TM Wireless to buy the telephones. See § 672.201(1), Fla. Stat. (2013) ("[A] contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker."); Moriber v. Dreiling, 194 So.3d 369, 373 (Fla. 3d DCA 2016) (stating fraudulent inducement requires proof of "the representor's knowledge that the representation is false").

As to TM Wireless's affirmative defense that All Commerce breached the sales contract first by providing nonconforming telephones, Florida's commercial code provides that "[a]ny sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model." § 672.313(1)(c), Fla. Stat. (2013). The sworn statements of Edward Chang (TM Wireless's vice president), Frank Chang (the company's chief executive officer), and Mario Ego-Aguirre (another vice president), filed in opposition to All Commerce's summary judgment motion, showed the following facts. During the negotiations over the sale of the telephones, All Commerce "represented to TM Wireless that the [cellular telephones] were fully operational and that [the] two features"-SIM card transferability and push-to-talk-"worked." All Commerce "provided two samples, one of each model, for TM Wireless to test and confirm the agreement based on sample approval." The samples worked when tested in the United States and Latin America, and based on that, TM Wireless entered into the contract with All Commerce. However, when the telephones were shipped they were locked, and when unlocked, the push-to-talk feature did not work. At that point, Florida's commercial code permitted TM Wireless to reject the goods, id. § 672.601(1) ("[I]f the goods ... fail in any respect to conform to the contract, the buyer may ... reject the whole ...."), or revoke its acceptance, id, § 672.608(1) ("The buyer may revoke her or his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to her or him if she or he has accepted it: (a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or (b) Without discovery of such nonconformity if her or his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances."). These facts create a genuine issue of whether All Commerce first breached its express warranty when the shipped telephones did not conform to the samples, and whether TM Wireless properly rejected the goods.

Conclusion

For these reasons, we affirm summary judgment in favor of All Commerce on TM Wireless's counterclaims and affirmative defenses for breach of joint venture and fraudulent inducement. We reverse the summary judgment entered in favor of All Commerce on TM Wireless's counterclaim and affirmative defense that All Commerce first breached the sales contract. We also reverse the award of attorney's fees based on the summary judgment. Accordingly, the case is remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded for further proceedings.

      In addition to its breach of contract claim, All Commerce included claims for account stated, open account, and unjust enrichment. These other claims were voluntarily dismissed.


text:
    Maximiliano REY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2706
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018 Rehearing Denied June 25, 2018
    Maximiliano Rey, in proper person.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES, and LINDSEY, JJ.
   PER CURIAM.

Maximiliano Rey appeals from an order denying his motion for clarification of jail credit. We affirm without prejudice for Rey to first exhaust his administrative remedies with the Department of Corrections and, if unsatisfied with the outcome, to file a petition for writ of mandamus against the Department. See Watkins v. State, 14 So.3d 1128, 1129 (Fla. 2d DCA 2009) (explaining that a defendant's "claim that the [Department of Corrections] incorrectly interpreted his sentences is not cognizable in a motion for clarification" (citing Edward v. State, 966 So.2d 1012, 1013 (Fla. 4th DCA 2007) ) ); Dunbar v. State, 225 So.3d 971, 972 (Fla. 3d DCA 2017) ("As an inmate in the custody of the [Department of Corrections], Dunbar must fully exhaust his administrative remedies regarding gain time or credit owed within the [Department of Corrections] before he is entitled to pursue judicial remedies."); LaFerte-Diaz v. Dep't of Corr., 187 So.3d 908, 909 (Fla. 3d DCA 2016) ("If after exhausting his administrative remedies, Diaz is not afforded the relief sought, he may file a petition seeking a writ of mandamus to compel the Department [of Corrections] to credit him with the full amount of jail time awarded by the trial court.").

We further affirm without prejudice for Rey to raise a claim asserting a discrepancy between the oral and written sentence by filing a motion pursuant to Rule 3.800(a). See Brown v. State, 225 So.3d 319, 321 (Fla. 3d DCA 2017).

Affirmed.

      To the extent Rey seeks to argue for the first time on appeal that the trial court's written sentence does not conform to the oral pronouncements, the proper mechanism by which to raise such a claim is through a Rule 3.800(a) motion. See Williams v. State, 957 So.2d 600, 601 (Fla. 2007) ("[A] claim asserting a discrepancy between an oral and written sentence is cognizable in a rule 3.800(a) proceeding for correction of an illegal sentence.").


author: Ciklin, J.

text:
    Joseph PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3956
    District Court of Appeal of Florida, Fourth District.
    May 16, 2018
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

Joseph Pierre challenges his conviction for attempted first-degree murder. He argues that the trial court erred in admitting a multi-colored ski mask that was not used in the crime and by permitting an expert witness to testify to an area outside of his expertise. As a result of waiver, we find no reversible error. Because most of the issues were not properly preserved for review, we affirm and we write to once more impress upon counsel the duty to be mindful of preserving the right to appeal, particularly within the rigors of an ongoing jury trial.

The evidence adduced at trial reveals that Pierre shot his ex-wife. Pierre was wearing a dark ski mask, but his ex-wife and another eyewitness, his son, saw his face when the mask slipped off. As Pierre attempted to flee, the son threw a brick at the passenger side of Pierre's vehicle, smashing the rearview mirror. Five hours later, Pierre was apprehended in a rental car with a missing rearview mirror. The state presented testimony from an expert witness, Brian Silvia, that he put the broken pieces of the rearview mirror collected at the scene of the shooting together like a puzzle and that they matched the rental car. Although the mask worn in the shooting was never found, police discovered a second but different, multi-colored ski mask in the rental car.

At trial, the defense theorized that Pierre rented the vehicle for a trip to Georgia and not to facilitate the shooting. Accordingly, Pierre objected to the introduction of the second mask as irrelevant. The state argued to the trial judge that the extra mask was relevant to show "state of mind, nefarious intent." It was admitted.

On appeal, Pierre argues the trial court erred by admitting the second mask because (1) it was irrelevant and (2) any probative value was outweighed by the danger of unfair prejudice. The state counters that the knit cap was relevant because the presence of the additional mask in Pierre's rental car proved that the rental car was the same car used in the attempted murder and proved that Pierre had a premeditated design to kill the ex-wife. The state also argues that because Pierre did not argue the mask was unfairly prejudicial below, the issue was not preserved for review.

"A trial court's decision on the relevance of evidence will not be overturned absent an abuse of discretion, though the court's decision is limited by the rules of evidence." Jackson v. State , 89 So.3d 1011, 1020 (Fla. 4th DCA 2012). "If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Booker v. State , 514 So.2d 1079, 1085 (Fla. 1987) (quoting Canakaris v. Canakaris , 382 So.2d 1197, 1203 (Fla. 1980) ).

Three sections of the evidence code provide the framework for evaluating questions of relevance. The general rule is that "[a]ll relevant evidence is admissible, except as provided by law." § 90.402, Fla. Stat. (2007). "Relevant evidence is [defined as] evidence tending to prove or disprove a material fact." § 90.401, Fla. Stat. (2007). Section 90.403, Florida Statutes (2007), establishes a limitation on the introduction of relevant evidence: "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence."

Jackson , 89 So.3d at 1020 (alterations in original).

First, because reasonable minds may differ as to whether the second mask was relevant to the issues of the state's or the defense's case, we find no abuse of discretion in the trial court's determination of relevance.

However, we do not reach the merits of whether the probative value of the second mask was substantially outweighed by the danger of unfair prejudice it imposed because Pierre failed to assert this ground below. For proper preservation, a party at trial must contemporaneously object and assert the specific legal basis for his or her objection to the admission of the evidence. Datus v. State , 126 So.3d 363, 365-66 (Fla. 4th DCA 2013).

"[A]n objection on relevance grounds only will not preserve an argument of unfair prejudice on appeal." Id. at 365 (emphasis in original). Thus, the issue was not preserved.

Likewise, we do not reach the merits of Pierre's unpreserved argument that Silvia was erroneously allowed to testify to the composition of the side mirror. Generally, the burden is on a movant to secure a ruling on his motion and the failure to do so results in a waiver for appellate purposes. Rose v. State , 787 So.2d 786, 797 (Fla. 2001) ; State v. Kelley , 588 So.2d 595, 600 (Fla. 1st DCA 1991). Pierre argued prior to Silvia's testimony that he should not be permitted "to give an expert opinion as to whether or not pieces were from the same car" since his deposition testimony established that his expertise is in the mechanics of cars, not paint and body work. The trial court instructed that the state needed to lay a proper predicate and that it would "entertain any objection you have at a later time." But because Pierre then failed to renew his objection during Silvia's testimony or obtain a ruling on his earlier motion to exclude the testimony, this argument was not preserved for review either.

Finally, we find no fundamental error, which is the sole exception to the preservation requirement, see Harrell v. State , 894 So.2d 935, 941 (Fla. 2005), and which is "the type of error which 'reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error,' " see Lawrence v. State , 831 So.2d 121, 137 (Fla. 2002) (quoting Urbin v. State , 714 So.2d 411, 418 n.8 (Fla. 1998) ). Neither the admission of the mask nor the expert testimony-if erroneous-amounts to fundamental error, as the jury could have found Pierre guilty based on the eyewitness testimony of his son and ex-wife alone.

We thus affirm.

Affirmed.

Warner and Klingensmith, JJ., concur.


author: Per Curiam.

text:
    Cedric ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1015
    District Court of Appeal of Florida, First District.
    May 17, 2018
    Andy Thomas, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant was convicted of numerous offenses, including sale, purchase, manufacture, or delivery of methamphetamine (count I) and possession of methamphetamine with the intent to sell (count II). His sole argument on appeal is that these two convictions violate double jeopardy. We disagree and affirm.

The double jeopardy clauses in the state and federal constitutions protect against (among other things) "multiple punishments for the same offense." Lee v. State , 223 So.3d 342, 347 (Fla. 1st DCA 2017) (quoting Ohio v. Johnson , 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) ). But, double jeopardy does not preclude separate convictions for offenses that occur in different criminal episodes or that are based on distinct acts. Id. at 348 ; see also Sanders v. State , 101 So.3d 373, 375 (Fla. 1st DCA 2012) ("If it is determined that the charged offenses occurred in different criminal episodes or constituted different acts, no further analysis is necessary and the separate offenses do not violate double jeopardy."). Additionally, "settled precedent establishes that an appellant may not be charged[ ] with two separate offenses premised on his possession of the same contraband found in differing packages in the same location when the contraband is seized as part of the same search." Godfrey v. State , 947 So.2d 565, 567 (Fla. 1st DCA 2006) (first emphasis in original, other emphasis added); but see Mosely v. State , 659 So.2d 1342 (Fla. 5th DCA) (rejecting defendant's argument that double jeopardy precluded his dual convictions for possession of cocaine and trafficking in cocaine where the offenses were predicated on different forms of the drug-powdered and crack-found in different places in the defendant's car), rev. denied , 666 So.2d 144 (Fla. 1995).

Here, unlike Godfrey , the record establishes that the offenses in counts I and II are based on different contraband found at different locations through different searches: count I was based on the liquid mixtures containing methamphetamine in "cook pots" at Appellant's house found pursuant to a search warrant obtained after Appellant's arrest on count II, which was based on the powdered methamphetamine found in Appellant's car earlier in the day when he was stopped by police after he left his house and met with someone in a pharmacy parking lot. Moreover, because the offenses involve different forms of methamphetamine found at different locations at different times, the record further establishes that the offenses involve different criminal episodes or distinct acts, or both. See Lee , 223 So.3d at 348-50 (summarizing the factors to be considered when determining whether offenses arise in one or more criminal episode or are based on distinct acts). Accordingly, double jeopardy does not preclude Appellant's dual convictions on counts I and II.

AFFIRMED .

Wetherell, Ray, and Osterhaus, JJ., concur.

      Presumably, the opinion meant to say "convicted," rather than "charged," because as Judge Winokur explained in his concurring opinion in Lee , "in the multiple punishment context, it is the punishment that implicates the protection against double jeopardy, not the criminal charges alone." 223 So.3d at 361 (emphasis in original); see also State v. Sholl , 18 So.3d 1158, 1162 (Fla. 1st DCA 2009) ("When an information contains two or more charges which amount to the same offense, '[d]ouble jeopardy concerns require only that the trial judge filter out multiple punishments at the end of the trial, not at the beginning.' ") (quoting Claps v. State , 971 So.2d 131, 134 (Fla. 2d DCA 2007) ).