FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ Benjamin B. Morales v. State of Florida, Docket # 1D19-4016

Appeals denial of motion for post-conviction relief. Raised several grounds. Court opinion addresses Grounds Two and Seven. Affirm denial of Ground Two, reverse and remand for an evidentiary hearing on Ground Seven.

Sentenced to two life terms for two armed robberies he committed with Molli Feehley. Neither victim had solid identification of Morales, but Ms. Feehley testified against him and provided incriminating evidence and statement to police and other witnesses. Direct appeal was affirmed.

Ground Seven of Mr. Morales’ motion claimed ineffective assistance of counsel for failing to investigate and call a witness. Mr. Morales alleged that Roxanne Collins was available at the time of trial, that he told his trial counsel about her, and that she would have provided him a complete alibi as she was with him at the time of the crime. Mr. Morales alleged that his trial counsel conducted no investigation into Ms. Collins. Court denied without an evidentiary hearing.

“When a postconviction movant seeks relief due to alleged ineffective assistance of counsel, she must establish ‘counsel’s performance was deficient,’ and ‘the deficient performance prejudiced the defense.’” McCray v. State, 266 So. 3d 250, 251 (Fla. 1st DCA 2019) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings as long as they are supported by competent, substantial evidence and reviewing the legal conclusions de novo.” Wickham v. State, 124 So. 3d 841, 858 (Fla. 2013).

To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, must accept the defendant’s factual allegations to the extent they are not refuted by the record.

Morales argues that he consented to not calling the witness because he knew defense counsel did not perform and investigation. Claim of failure to investigate is not in the record. Reverse and remand for evidentiary hearing or to attach parts of the record which refute the claim.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Kenneth A. Bailey v. State of Florida, Docket # 2D20-171

Appeals order dismissing motion for post-conviction relief. Bailey pleaded guilty and was convicted in Pasco County of possession of a controlled substance, possession of paraphernalia, and providing false identification to a law enforcement officer. He was sentenced to thirteen months’ imprisonment for possession of a controlled substance and time served on the remaining offenses. The written sentence included an instruction that the composite term of his sentences run concurrently with “[a]ny Pinellas County sentence.”

About a month later, Bailey pleaded guilty and was convicted in Pinellas County of failure to appear in case number 17-05997-CF and two counts of felony battery in case number 16-04786-CF.1 The trial court sentenced him to thirty months’ imprisonment for each offense, with all of his sentences running concurrently. The Pinellas County sentences made no mention of Bailey’s Pasco County sentence. Bailey did not appeal any of his judgments and sentences. In the underlying Pasco County case, Bailey filed a timely motion for postconviction relief. In ground one, he sought to enforce his plea agreement, which was accepted by the trial court and allegedly provided that his thirteen-month Pasco County sentence would run concurrently with his anticipated Pinellas County sentences in the above cases. Although the written Pasco County judgment and sentence provides that his sentence should run concurrently with “[a]ny Pinellas County [s]entence,” he was informed by prison officials with the Department of Corrections (DOC) that his Pasco and Pinellas County sentences were running consecutively because there were no Pinellas County sentences in existence when the Pasco County sentence was imposed. Bailey contended that he is entitled to specific performance of his plea agreement and requested that his written sentence be corrected to explicitly state his sentence should run concurrently with his Pinellas County sentences in case numbers 16-04786-CF and 17-05997-CF.

Argued that the written sentence conflicted with the oral pronouncement. Justice Scalia in Puckett v. United States, 556 U.S. 129 (2009) explained that a plea bargain was essentially a contract. “When the consideration for a contract fails―that is, when one of the exchanged promises is not kept . . . we say that the contract was broken.” Id.

The postconviction court failed to recognize Bailey’s facially sufficient claims that he did not receive the sentence for which he bargained or that was orally pronounced because his written sentence could be interpreted in a manner that was inconsistent with the allegedly bargained-for sentence and the trial court’s alleged oral pronouncement. See Pifer v. State, 8 So. 3d 1154, 1155 (Fla. 2d DCA 2009) (holding that the defendant’s claim that his sentence exceeded the terms of his plea agreement was cognizable in a rule 3.850 motion); Sweet v. State, 987 So. 2d 747, 747 (Fla. 2d DCA 2008) (holding that a claim seeking to enforce a plea agreement must be filed under rule 3.850); see also Richardson v. State, 787 So. 2d 197, 198 (Fla. 2d DCA 2001) (observing that a claim that a written sentence fails to conform to the trial court’s oral pronouncement is cognizable in a rule 3.850 motion).

Reversed and remanded for further proceedings to determine whether the plea bargain was established and whether the State performed. If not, a remedy will be required.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Gabriel Charlton, Docket # 4D20-276

State’s appeal of an order withholding adjudication on a Third Degree Felony charge of Unarmed Burglary of an Unoccupied Conveyance.  Order reversed, case remanded.

Defendant entered an open no contest plea to Unarmed Burglary of an Unoccupied Conveyance.  At sentencing, the court ruled that Defendant’s multiple prior withholding of adjudication on other cases counted as only one withhold for the purpose of eligibility to receive a withhold adjudication in a subsequent case under Florida Statutes 775.08435(1)(d).  The State appealed, and the Fourth DCA ruled that Florida Statutes 775.08435(1)(d) prohibits a court from withholding adjudication of the Defendant has two or more prior withholdings of adjudication if the prior withholds did not arise from the same incident as the current felony offense.  Because Defendant received four withholds for at least two different incidents, he was ineligible for another withholding of adjudication. 

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Travis Archer v. State of Florida, Docket # 5D19-3627

Defendant stabbed and killed his dog when it bit him, and pled no contest to felony Cruelty to Animals.   After public outcry over the incident, the Legislature amended the animal cruelty laws to enhance punishment for animal abuse before Defendant’s sentencing.  Archer was sentenced to 1 year of county jail plus probation.   The order set forth 14 standard conditions of probation and 25 special conditions.  At sentencing his lawyer stipulated that the new law could apply to him to add as a condition of probation that Defendant be restricted from owning animals for the rest of his life or living with anyone owning a pet.  A rule 3.800(b)(2) motion was denied.

The Fifth DCA reversed that condition of probation, ruling that the court did not have jurisdiction to impose a lifetime prohibition on the ownership of animals, only for the duration of probation.