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Florida Third District Court Of Appeal – Criminal Headnotes – July 12, 2017

ANDRAS JANOS VASS V. STATE OF FLORIDA – SUFFICIENCY OF EVIDENCE; INEFFECTIVE ASSISTANCE OF COUNSEL; VERDICT FORM NOT DEFECTIVE FOR FAILING TO REQUIRE JURY TO SPECIFY WHICH INCIDENTS COMPRISED PATTERN OF RACKETEERING

Direct appeal from conviction and sentencing for racketeering, conspiracy, human trafficking, and deriving support from the proceeds of prostitution.

The appeals court finds sufficient evidence to support the conviction and rejects the claim of ineffective assistance of counsel in failing to renew motion for judgment of acquittal at the close of evidence, citing Morris v. State, 721 So. 2d 725 (Fla. 1998) and the corresponding amendment to Florida Rule of Criminal Procedure 3.380(b). The court declines to reach other claims of ineffective assistance on direct appeal. The appeals court rejects the claim the verdict form was defective in not requiring the jury to make findings regarding which incidents were proven to establish a pattern of racketeering. The present case is nearly identical with Thomas v. State, 125 So. 3d 874 (Fla. 4th DCA 2013), in which the 4th District Court of Appeal held that by convicting on the other counts, each of which were “predicate incidents,” the jury necessarily determined the defendant had engaged in a pattern of racketeering.

ORENTHAL GREEN V. STATE OF FLORIDA – REFUSAL TO GRANT CONTINUANCE OF SENTENCING HEARING; RELIANCE ON UNCHARGED OFFENSES IN SENTENCING; CONCURRENT LIFE SENTENCES

Direct appeal from order revoking probation and imposing concurrent life sentences on prior convictions of kidnapping and sexual battery, and of armed robbery.

The appeals court finds no abuse of discretion in the trial court’s refusal to grant a continuance of the sentencing hearing to allow the defendant’s mother to be present. The appeals court finds no error in the trial court’s alleged reliance on uncharged offenses, as this issue was not preserved, and in any event the trial court has broad discretion to consider “all relevant evidence” in determining the appropriate sentence. The appeals court finds no fundamental error in imposing a life sentence for the kidnapping and sexual battery conviction, as this is concurrent with another life sentence, Jordan v. State, 143 So. 3d 335 (Fla. 2014).

ADOLPHUS ROOKS V. STATE OF FLORIDA – MOTION TO CORRECT SENTENCE IMPOSED ON MINOR DEFENDANT; EIGHTH AMENDMENT CONCERNS NOT IMPLICATED WHERE DEFENDANT WAS IN FACT PAROLED

Appeal from denial of a motion to correct a 1972 sentence of life with possibility of parole for sexual battery committed as a minor. The defendant was paroled in 1980 but violated parole in 2014 by trafficking in heroin, for which he was separately sentenced to fifteen years.

The defendant argues the underlying 1972 sentence was illegal in light of Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. 460 (2012), both holding the Eighth Amendment forbids a sentence of life without possibility of parole for a minor on a non-homicide conviction, and in light of Florida decisions applying those rulings, Atwell v. State, 197 So. 3d 1040 (Fla. 2016), and Henry v. State, 175 So. 3d 675 (Fla. 2015).

The appeals court rejects this argument, noting the defendant was in fact paroled after only eight and one-half years and thereafter violated parole as an adult.

S.C. V. STATE OF FLORIDA – CONVICTION OF MINOR FOR POSSESSION OF STOLEN DRIVER’S LICENSE; NO ERROR IN DENYING MOTION FOR JUDGMENT OF DISMISSAL

Direct appeal from conviction of minor of possession of stolen driver’s license. The appeals court finds no error in the trial court’s denial of the defendant’s motion for judgment of dismissal, as there was sufficient evidence to support the conviction, including the defendant’s attempt to flee and his own voluntary statements.

STEVEN WATKINS V. STATE OF FLORIDA – DETERMINATION OF FACTUAL BASIS FOR NOLO CONTENDERE PLEA TO PETIT THEFT; INEFFECTIVE ASSISTANCE OF COUNSEL

Direct appeal from conviction and sentencing on plea of nolo contendere to felony petit theft.

The appeals court finds the trial court did determine there was a factual basis for the plea, including testimony presented on a motion to suppress an out-of-court photographic identification, which it had just denied. Trial counsel was not clearly ineffective for stipulating there was a factual basis for the plea. Nor on the face of the record was counsel ineffective for stipulating to prior convictions for petit theft, on which the trial court relief in enhancing the sentence.

Affirmed without prejudice to possible post-conviction relief for ineffective assistance of counsel and/or to correct an illegal sentence.

ANTHONY WILLARD JOHNSON V. STATE OF FLORIDA – DENIAL OF MOTION FOR POST-CONVICTION RELIEF; PLEA AGREEMENT RECOMMENDING FEDERAL AND STATE SENTENCES BE SERVED CONCURRENTLY

Appeal from denial of motion for post-conviction relief from sentence entered on a plea to charges of attempted first-degree murder with a firearm and possession of a firearm by a convicted felon, together with five older cases on which the defendant was on probation, each of which carried a potential life sentence.

The defendant argues he did not enter the plea agreement voluntarily, as he did not fully understand the ramifications. At the time of sentencing on the state charges, for which he faced a mandatory life sentence as a prison releasee reoffender (“PRRP”), the defendant was serving a 235-month federal sentence on unrelated charges. The plea agreement asked the trial court to recommend that the state and federal sentences be served concurrently, but stated that if either the federal bureau of prisons or the state department of corrections did not accept this recommendation, this refusal would not be grounds for vacating the plea agreement or for post-conviction relief.

The appeals court rejects the defendant’s argument that the trial court should have expressly advised him that if either the federal or state officials did not accept the recommendation he would be required to serve the sentenced consecutively.