OPINIONS RELEASED 12-24-08

Gold - Reversed/Remanded    

Because Fulmore had benefitted from a withholding of adjudication in a prior felony case, in order to withhold adjudication of guilt in the present case, the trial court was required by section 775.08435(1)(c), Florida Statutes, to provide written justification. Thus, we remand in order for the trial court to revisit its sentencing determination, and to provide legally sufficient written reasons if it is still inclined to withhold adjudication.

Gates - Reversed/Remanded

Here, the Department was not seeking to modify the probation order to require sexual offender registration, but to add electronic monitoring.  Because the court erred in modifying probation to include electronic monitoring outside the sixty-day period specified in Rule 3.800(c), we reverse the order with directions to strike electronic monitoring as a condition of probation.

Gardiner - Affirmed in Part; Reversed in Part and Remanded (JAABLOG Disclosure: Gelin was the PD)

Michaud’s claim is legally sufficient in that if there are ambiguities between the Connecticut and Florida statutes, counsel failed to determine this and object, making his performance deficient. If Michaud’s score were lower, based upon the ambiguities between Connecticut and Florida statutes, his sentence would be shorter. However, the state did not submit any evidence to the trial court which refutes this claim. Therefore, we reverse and remand for an evidentiary hearing, or in the alternative, to allow the state to attach portions of the record which refute Michaud’s claim.

Backman - Affirmed in part, reversed in part, and remanded

We affirm the order denying appellant’s motion for postconviction relief on all issues except his claim that his counsel was ineffective in failing to inform him of the possibility of a life sentence when deciding whether to accept a twenty-year plea offer.

Gardiner - Reversed and Remanded

While the defendant admitted that he was not entitled to an insanity defense, the plea colloquy did not address an involuntary intoxication defense. The defendant’s motion for post-conviction relief alleged that he had taken multiple prescribed drugs on the day of the crime, which suggests he may have been entitled to the defense of involuntary intoxication. For this reason, we reverse and remand the case to the trial court for an evidentiary hearing or to attach portions of the record to establish the defendant is not entitled to relief.

Rodriguez-Powell - Affirmed in part, reversed in part, and remanded

The trial court sentenced Pembrook to the lowest permissible sentence under the scoresheet. Under a corrected scoresheet, the lowest permissible sentence would be reduced by 11.6 months. The record does not demonstrate that the trial court would have imposed the same sentence under a correct scoresheet, so the error is not harmless.

Backman - Reversed and Remanded for Further Proceedings

The trial court summarily denied appellant’s Florida Rule of Criminal Procedure 3.850 motion finding that it was filed beyond the two-year time limit of the rule. Fla. R. Crim. P. 3.850(b). We reverse and remand for further proceedings. Appellant timely filed his motion within two years of his convictions and sentences becoming final.

OPINIONS RELEASED 12-17-08

Newman - Affirm/Reverse

We affirm the appellant's convictions for leaving the scene of an accident with serious injuries and driving without a valid license, but direct the trial court to correct the sentence imposed for driving without a valid license. The sentence of one-year in jail exceeded the maximum sentence of 60 days permitted by statute. §§ 322.03, 322.39(2), and 775.082(4)(b), Fla. Stat. (2007). On remand, the trial court shall impose a corrected sentence that does not exceed the statutory maximum.

SPECIAL ISSUANCE OPINION 12-15-08

Aleman - Petition for writ of habeas corpus Granted

In 1975, David Griffin was convicted of robbery and sentenced to lifein prison. Griffin committed his offense on August 15, 1975, just six weeks after an amendment to the robbery statute divided robbery into two separate offenses. Ch. 74-383, § 38, Laws of Fla. (effective July 1,1975). Under the amendment, a robbery with a firearm or deadly weapon could be punished by life imprisonment, but a robbery without a firearm or weapon constituted a second-degree felony, punishable by fifteen years in prison. § 812.13(2), Fla. Stat. (1975). Although the facts presented showed that Griffin and his co-defendant carried and used firearms, a firearm element was not charged in the information or expressly found by the jury’s verdict. Despite this, Griffin was sentenced to life in prison. He brings this petition for writ of habeas corpus claiming his right to immediate release, because he was convicted for a crime not charged in the information, and he has already served well beyond the fifteen-year maximum punishment...

Based upon the state’s concessions and controlling law, we grant the petition and direct that petitioner be released immediately. Because the state has not opposed this petition, a motion for rehearing shall not be entertained, and the mandate shall issue immediately. See, e.g., Palma v. Jenne, 763 So. 2d 359, 360 (Fla. 4th DCA 1998).

(Does not include PCAs)