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Florida Third District Court Of Appeal – Criminal Headnotes – May 31, 2017

MIGUEL ALEXANDER ALVAREZ FUENTES V. STATE OF FLORIDA – TRIAL COURT ORDER REVOKING PROBATION AFFIRMED IN PART – REMAND ONLY FOR ENTRY OF WRITTEN ORDER FINDING VIOLATION OF PROBATION

Fuentes entered a negotiated plea on nine felonies, served five years, and was on five years’ probation when he was arrested for uttering a forged check.  The trial court found he had violated probation and imposed a sentence of twenty years.  The 3rd District reversed the trial court’s finding of a violation based on a “technical” violation of a requirement to report job searches to his probation officer. However, it affirmed the trial court’s sentence for the violation based on the new law violation.

GARY REID V. STATE OF FLORIDA – MILLER/GRAHAM – DENIAL OF MOTION FOR POST-CONVICTION RELIEF REVERSED, REMANDED FOR RESENTENCING IN LIGHT OF ATWELL

In 1979, at age 17, Reid entered a negotiated plea to charges of first-degree murder, attempted armed robbery, and possession of a firearm while engaged in a criminal offense, in exchange for sentences of life, with eligibility for parole after 25 years, and 15 years concurrent.  After his most recent parole hearing extended his presumptive release date to 2028, Reid filed a motion for post-conviction relief, citing the 2012 decision of the U.S. Supreme Court in Miller v. Alabama.  The trial court, relying on the 2011 3rd District opinion in Cunningham v. State, denied the motion.  A few weeks later, the Florida Supreme Court issued its decision in Atwell v. State, finding Florida’s existing parole system “does not provide for individualized consideration of [defendant’s] juvenile status at the time of the murder, as required by Miller,” where the sentence is “virtually indistinguishable from a sentence of life without parole.”  The appeals court determined Atwell requires resentencing here, rejecting the state’s arguments the negotiated plea had waived any defect in the sentence and the extended presumptive release date was within Reid’s life expectancy.

J.H. V. STATE OF FLORIDA – DENIAL OF MOTION TO DISMISS AT CLOSE OF EVIDENCE, SENTENCE OF PROBATION AFFIRMED

The minor defendant was adjudicated delinquent for trespassing on school property.  The trial court denied his motion to dismiss, which argued there was no evidence he had no “legitimate business” on campus, an element of the offense.  The appeals court ruled this could be inferred from “surrounding circumstances.”

EMMETT TIMOTHY COX V. STATE OF FLORIDA – DENIAL OF MOTION TO CORRECT ILLEGAL SENTENCE AFFIRMED – STIPULATION IN NEGOTIATED PLEA THAT DEFENDANT WAS HABITUAL FELONY OFFENDER WAIVED “PROCEDURAL” REQUIREMENT THAT PRIOR CONVICTIONS BE SEQUENTIAL

In 1998, the defendant entered a negotiated global plea to multiple felony charges in five separate cases, stipulating he qualified as a habitual felony offender.  In 2016, he filed a motion to correct illegal sentence, arguing the underlying prior felony convictions were not “sequential,” as required by section 775.084(5) Fla. Stat. (1997).  The appeals court ruled the stipulation waived this “procedural” requirement.  Further, citing 2011 decision of Florida Supreme Court in Johnson v. State, the appeals court ruled Rule 3.800(a) requires the defendant to allege the record itself demonstrates he is entitled to relief, whereas the present motion referred to facts outside the record.