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Florida Third District Court of Appeal – Criminal Headnotes – September 8, 2017

JOSEPH PHELPS V. STATE OF FLORIDA – PEREMPTORY JUROR STRIKE; INFORMANT TESTIMONY; HARMLESS HEARSAY

            Direct appeal from conviction of first-degree murder.

            The defendant argues (a) the trial court erred in accepting the state's peremptory strike of a black juror, (b) that the trial court abused its discretion in allowing a jailhouse informant to testify that the defendant had a gun and that he preferred the .357 Magnum, which was the type of gun used in this crime, and (c) that the trial court erred in allowing testimony of a detective concerning the defendant having been admitted to a hospital with a gunshot wound "at or near" the time of the crime.

            The appeals court rejects each of these arguments.  The state's proffered reason for striking the juror -- youth and inexperience -- has been accepted as race-neutral in other cases.  The trial court's determination that the informant's testimony was relevant, and that its probative value outweighed any prejudicial effect, was not an abuse of discretion.  The hearsay elements of the detective's testimony were harmless.

            Affirmed.  The defendant's further argument that the state failed to disclose incentives given the jailhouse informant for his testimony was not preserved for direct appeal, but may be raised in a post-conviction motion.

LUIS FUNDORA MORENO V. STATE OF FLORIDA – COMPETENCY DETERMINATION FOR SENTENCING

            Direct appeal from trial court finding the defendant was competent to be sentenced for violating community control.

            The defendant argues (a) the trial court erred in not making its own determination of the defendant's competency, and (b) the trial court abused its discretion in failing to appoint a neuropsychologist.

            The appeals court rejects these arguments, noting (a) the defendant, through appointed counsel, had stipulated to the admissibility of the two examining doctors' written reports, without testimony, and the trial court had heard the defendant testify and judged him to be competent, and (b) there was nothing in the record to indicate that the defendant had sought appointment of a neuropsychologist.

            Remanded with instructions to enter a written order formalizing the oral ruling.

GRADY ROBINSON V. STATE OF FLORIDA – HABITUAL FELONY OFFENDER SENTENCE; PRIOR CONVICTIONS

            Appeal from an order denying a motion to correct an allegedly illegal sentence.

            The defendant argues sentencing him as a habitual felony offender was improper, because he had only one prior, non-sequential felony conviction.

            The appeals court rejects this argument, noting the record showed multiple prior felony convictions.

            Affirmed.

MARCUS MOLINA V. STATE OF FLORIDA – INEFFECTIVE ASSISTANCE OF COUNSEL

            Appeal from an order denying post-conviction relief.

            The defendant argues trial counsel was ineffective in (a) failing to request a pre-sentence investigation and (b) failing to correct alleged errors in the written plea agreement.

            The appeals court rejects these arguments, noting the plea agreement reduced the charges from sexual activity with a child by a familial custodian to aggravated child abuse, specifically so that the defendant would not be designated a sexual predator.  While the appeals court acknowledges a first-time offender should ordinarily get a pre-sentence investigation, the plea here was negotiated, and there was no indication a PSI would have led to a different result.  Mitigation evidence was in fact taken into consideration.  Although the written plea agreement included multiple conditions specifically related to sexual predators, the defendant had agreed to each of these in the plea colloquy.

            Affirmed.