Criminal Appeals, Habeas Corpus and Sentencing

Confusion Over Self Defense Instruction

Mario Reyes Ortiz appeals a judgment for aggravated battery with a firearm resulting in great bodily harm, asserting that the trial court committed fundamental error in providing a circular jury instruction on the justifiable use of force. We reverse based upon the controlling precedent of Smith v. State, 933 So.2d 1275 (Fla. 2d DCA 2006); see also Velazquez v. State, 884 So.2d 377, 377-78 (Fla. 2d DCA 2004) (citing Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004)); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004). We write to expressly reject the State's argument that the error was not fundamental because, as a matter of law, Mr. Ortiz was not entitled to an instruction on self-defense. See, e.g., Sutton v. State, 929 So.2d 1105 (Fla. 4th DCA 2006); Thomas v. State, 918 So.2d 327 (Fla. 1st DCA 2005).

The charges against Mr. Ortiz arose as a result of a familial dispute between Mr. Ortiz and Mr. Gologram, the adult son of Mr. Ortiz's girlfriend. On February 6, 2001, Mr. Ortiz and his girlfriend went to Mr. Gologram's home to deliver gifts to Mr. Gologram's child. Mr. Gologram did not like Mr. Ortiz and had in fact told his mother not to bring Mr. Ortiz to his home. When Mr. Ortiz and his girlfriend arrived at Mr. Gologram's home, the two men argued. They both pulled knives while Mr. Ortiz's girlfriend stood between them attempting to break up the fight. At some point, Mr. Ortiz reached into his car, retrieved a gun, and fired it at Mr. Gologram, hitting him in the leg. Mr. Ortiz testified that he did so because he thought Mr. Gologram was getting ready to throw his knife at Mr. Ortiz.

Mr. Ortiz clearly testified that he believed he was at risk of imminent great bodily harm when he drew the gun and shot Mr. Gologram. Although the facts necessary to determine whether that belief was reasonable were disputed, there were sufficient facts that could have supported a jury verdict concluding either that Mr. Ortiz acted in justifiable self-defense or that he did not.

The trial court gave the jury an instruction on the justifiable use of force. Unfortunately, it was the standard instruction, which is a “circular” instruction that incorrectly informs the jury that the use of *1015
force cannot be justified if it occurs while the defendant is committing the charged offense. We have repeatedly criticized this instruction and held it to be fundamental error.^FN1 See Smith, 933 So.2d 1275; Velazquez, 884 So.2d 377; Baker, 877 So.2d 856; Zuniga, 869 So.2d 1239.

FN1. In fairness to the trial court, it should be observed that this case was tried in 2002 before this case law was well established. This appeal is the result of a successful petition alleging ineffective assistance of appellate counsel. See Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005).

[1] Despite this body of precedent, the State argues that we should affirm the judgment based upon the reasoning in Sutton, 929 So.2d 1105, and Thomas, 918 So.2d 327. In these cases, the First and Fourth District Courts of Appeal concluded that no fundamental error occurred in the giving of the circular instruction on self-defense because, as a matter of law, the defendant had not presented evidence entitling him to a proper instruction on self-defense. This appears to rest on a conclusion that an error in an instruction on a defense is harmless so long as the defendant was not legally entitled to have the jury consider the defense.

[2] Without deciding whether we agree with the analysis applied in Sutton and Thomas, we cannot agree that Mr. Ortiz was not, as a matter of law, entitled to a jury instruction on self-defense. A criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support this theory. Upshaw v. State, 871 So.2d 1015, 1017 (Fla. 2d DCA 2004). Even though Mr. Ortiz's theory of self-defense and the evidence supporting it were debatable, given the testimony that Mr. Gologram was the aggressor, Mr. Ortiz was entitled to receive a legally adequate instruction on self-defense. We therefore reverse the judgment and sentence and remand for a new trial.

Reversed and remanded.


Ortiz v. State  942 So.2d 1013, *1014 -1015 (Fla.App. 2 Dist.,2006)

Evidence Insufficient for Kidnapping

STRINGER, Judge.
Armistar Cole appeals his convictions and sentences for armed robbery and armed kidnapping. Because Cole raised no issues on appeal as to the armed robbery conviction, we affirm that conviction without comment. However, we agree that the evidence presented at trial was legally insufficient to sustain the conviction for armed kidnapping. Therefore, we reverse that conviction and remand with instructions to enter a judgment for false imprisonment with a firearm.

At trial, the evidence showed that the victim and her husband owned a Dollar Store, which Cole had patronized on several occasions. On July 8, 2003, the victim was working in the store when Cole came in to buy some candy. Cole approached the cash register and put money on the counter. When the victim opened the cash register to make change, Cole jumped over the counter and grabbed her by the neck. After a brief struggle, Cole pulled out a handgun. While holding the gun, he took money from the cash register, the victim's purse, which had been behind the counter, and a DVD player. He also forced the victim to open a file cabinet that was behind the counter, apparently thinking it might contain additional cash. After finding no money in the file cabinet, Cole pointed the gun at the victim and told her to “get in the bathroom and to stay there.”

The victim walked approximately ten feet to the bathroom and closed the door. Cole did not lock the victim in the bathroom and did not block the door. Two to three minutes later, the victim heard a chime that indicated the front door had been opened. At that point, she opened the bathroom door and found that Cole was gone. She then immediately called the police.

[1] At the close of the State's case, Cole moved for a judgment of acquittal on the kidnapping count, arguing the State had failed to prove a prima facie case of kidnapping because the distance from the cash register to the counter was short and the victim was not locked in the bathroom. The trial court denied the motion. After the jury convicted Cole on the kidnapping charge, Cole filed a motion for new trial arguing that the evidence on that charge was legally insufficient because “the victim was ordered into the bathroom only a few feet away, and was not confined by [Cole].” The trial court denied that motion as well. Cole now raises the same issue in this appeal.

Section 787.01(1)(a), Florida Statutes (2003), defines the term “kidnapping” as:

forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

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* * * *

(2) Commit or facilitate commission of any felony.

While this statutory definition appears straightforward, the supreme court has recognized that “a literal interpretation of subsection 787.01(1)(a)2 would result in a kidnapping conviction for ‘any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery.’ ” Berry v. State, 668 So.2d 967, 969 (Fla.1996) (quoting Mobley v. State, 409 So.2d 1031, 1034 (Fla.1982)). Thus, to limit the reach of the kidnapping statute, the supreme court adopted a three-part test in Faison v. State, 426 So.2d 963 (Fla.1983). Under the Faison test,

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:

(a) Must not be slight, inconsequential and merely incidental to the other crime;

(b) Must not be of the kind inherent in the nature of the other crime; and

(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Faison, 426 So.2d at 965 (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)).

In applying the elements of the Faison test, Florida courts have repeatedly held that simply moving a robbery victim at gunpoint from one room to another, even if a door is closed and the victim is ordered not to come out, is insufficient as a matter of law to sustain a conviction for kidnapping. See, e.g., Berry, 668 So.2d at 969; Goff v. State, 616 So.2d 551, 552 (Fla. 2d DCA 1993); Frederick v. State, 931 So.2d 967, 969-70 (Fla. 3d DCA 2006); Elozar v. State, 825 So.2d 490, 491 (Fla. 5th DCA 2002). In reaching this conclusion, the courts have determined that such movement is likely to be involved in any robbery, and there can be no kidnapping when “the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it.” Berry, 668 So.2d at 969.

Thus, for example, in Friend v. State, 385 So.2d 696, 697 (Fla. 1st DCA 1980), the defendant, while carrying a firearm during the robbery of an office building, ordered three employees into a bathroom and commanded them to “stay there.” Although the bathroom door was shut during the robbery, the employees opened the door within five minutes and discovered that the defendant had departed. The court reversed the kidnapping convictions, holding that this evidence was legally insufficient to support a kidnapping conviction because the confinement was of minimal duration and was inherent in the nature of the robbery. Id.

Similarly, in Frederick, one robber ordered the restaurant manager to open the safe while another robber ordered two employees at gunpoint to walk into a freezer. 931 So.2d at 969. The two employees did so and were told to stay there. The robber then closed the door to the freezer. After the robbers left, the manager told the employees they could come out, and they did so. In reversing the kidnapping convictions arising from the “confinement” of the two employees, the court stated:

In essence, the state's evidence in support of the kidnapping charges in this case consisted of the fact that the perpetrator ordered two restaurant employees to go into the freezer, closed the door behind them, and told them to remain in there. This evidence is insufficient, as a matter of law, to sustain the kidnapping convictions.

Id.

The evidence in this case, like the evidence in Frederick and Friend, is insufficient*1013
as a matter of law to support the kidnapping conviction against Cole. The movement of the victim in this case was of minimal duration and occurred at the very end of the robbery. It was the type of movement that was likely to naturally accompany a robbery, and the “confinement” ceased naturally with the robbery. Thus, the State's evidence was legally insufficient to support the kidnapping charge.

[2] [3] That said, however, the evidence presented was sufficient to support a conviction for false imprisonment. Section 787.02(1)(a) defines false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” The Faison test does not apply to the offense of false imprisonment. State v. Smith, 840 So.2d 987, 990 (Fla.2003).

Here, the evidence did establish that Cole restrained the victim against her will by forcing her at gunpoint into the bathroom. This evidence is sufficient to support a conviction for false imprisonment with a firearm. See, e.g., Sanders v. State, 905 So.2d 271 (Fla. 2d DCA 2005) (reversing kidnapping conviction and remanding for entry of judgment for lesser offense of false imprisonment when evidence showed that victim was confined inside her apartment for three hours during sexual battery); Gray v. State, 939 So.2d 1095 (Fla. 1st DCA 2006) (reversing kidnapping conviction and remanding for trial court to enter judgment for false imprisonment based on evidence that the robber dragged store clerk throughout the store during robbery but never bound her or otherwise confined her); Davis v. State, 816 So.2d 840 (Fla. 1st DCA 2002) (affirming conviction for false imprisonment based on evidence that victim was restrained on sofa by defendant holding a gun on her and telling her to “shut up”). Accordingly, we reverse Cole's conviction for armed kidnapping and remand with directions to the trial court to enter a judgment for false imprisonment with a firearm, see § 924.34, Fla. Stat. (2003), and to resentence Cole accordingly.

Affirmed in part; reversed in part; and remanded with directions

Cole v. State  942 So.2d 1010, *1011 -1013 (Fla.App. 2 Dist.,2006)

Order Imposing Costs of Investigation Reversed for Lack of Record Evidence

Betty Sue Phillips appeals an order imposing upon her more than fifteen thousand dollars in costs of investigation, payable to the Florida Department of Law Enforcement and the United States Postal Service. The order was entered after she pleaded guilty to one count of criminal use of personal identification information, i.e., identity theft, in violation of section 817.568(2)(a), Florida Statute (2003), a third-degree felony. We reverse the order imposing costs of investigation because there is insufficient evidence to support the amount ordered.

The facts supporting the charge against Ms. Phillips illustrate a growing problem in our increasingly high-tech society. Sometime in February 2004, two individuals burglarized the Haines City Post Office. Numerous checks belonging to post office customers were stolen and later fenced to a third person who, in turn, distributed the checks to Ms. Phillips and others. Additionally, the three helped Ms. Phillips to create a false identification card bearing her picture but containing the name of a victim of the check theft. Ms. Phillips then went to several stores where, using the false identity, she wrote checks on the victim's account totaling $2016.16.

Ms. Phillips admitted her involvement in the falsified check passing scheme to investigators, and in August 2005, the court accepted her plea to the charge.

In total, the identity theft ring consisted of only six people. Regarding Ms. Phillips, the prosecutor acknowledged that she was a minor player who did not participate in the post office burglary. Additionally, the prosecution advised the court that Ms. Phillips aided the State's case against the ring's three major players. As part of her sentence, the prosecutor sought the total cost of the investigation, including the postal service's investigation into the burglary and the State's investigations of the fence and the two other check passers.

The court sentenced Ms. Phillips to four years' incarceration and imposed court costs, cost of prosecution, and $2016.16 in restitution. At this sentencing hearing, however, the court expressed concern that the investigative costs sought-over thirty-three thousand dollars-were disproportionate to Ms. Phillips' level of involvement *1044
in the scheme or the minimal investigative efforts directed toward her by the FDLE and the postal inspector. The prosecutor offered to refigure the amount to allay the court's concerns, and in response the court postponed a final decision on this one point, stating that it would retain jurisdiction for sixty days to determine the amount of investigative costs.

At the hearing, in January 2006, the trial court, unfortunately, was not provided evidence of the investigative costs. To support the claim for over fifteen thousand dollars in investigative costs, the prosecutor obtained affidavits from unspecified individuals. The court told defense counsel that it would hear any evidence the defense had to dispute any amount contained in the affidavits and would hold an evidentiary hearing on any cost in dispute. Defense counsel had no evidence or testimony to discredit the affidavits but argued that the affidavits were insufficient to support an order for investigative costs and requested that the amount be set at zero. The trial court was not persuaded and entered the order on appeal. In so ordering, the court erred.

[1] [2] This court's record of the trial court's proceedings does not contain the affidavits supporting the amount ordered. This severely hampers appellate review and is probably due to the fact that the affidavits were never entered into evidence.^FN1 Before a court can impose an order on costs, it must have competent evidence of those costs. See Tory v. State, 686 So.2d 689, 694 (Fla. 4th DCA 1996) (“Where appellant has objected to the proper amount of costs to be ordered, section 939.01(6), Florida Statutes, requires the matter to be resolved by the court by a preponderance of the evidence.”).^FN2 “The burden of demonstrating the amount of costs incurred is on the state attorney.” § 938.27(4), Fla. Stat. (2003). Although the affidavits were mentioned at the January 2006 hearing, the transcript reveals that the prosecutor never offered them nor were they admitted into evidence. We do not put form over substance in requiring that this evidence be entered in the record. Until such evidence is offered for the court's consideration, defense counsel has nothing to object to.

FN1. We leave for another time whether affidavits are properly admissible in this type of hearing and whether such affidavits could provide competent, substantial evidence of the reasonable costs of investigation, given the defendant's inability to cross-examine an affidavit.

FN2. Section 939.01 since been renumbered section 938.27. Ch. 97-271, § 21, at 4993, Laws of Fla.

Because the trial court was without evidence of any amount of investigative costs, it erred by entering an order imposing an award of those costs upon Ms. Phillips. See Howard v. State, 920 So.2d 764, 765 (Fla. 2d DCA 2006) (reversing imposition of cost of prosecution because State failed to document its request for costs); Hill v. State, 845 So.2d 310, 310 (Fla. 2d DCA 2003) (reversing award of investigative costs where State concedes error because of failure to document its request for costs.)

We reverse the order on appeal and remand with instructions to hold a new hearing.




Phillips v. State  942 So.2d 1042, *1043 -1044 (Fla.App. 2 Dist.,2006)

State's Right to Appeal Motion in Limine

In this case, the State filed a motion in limine seeking to admit a statement made by the victim to a police officer as an excited utterance. The State admitted that it did not intend to call the victim as a witness. The defense, on the other hand, argued the admission of the statement would violate the defendant's confrontation rights as explained in Crawford. The county court entered an order denying the State's motion and entered an amended order denying the motion and certifying a question as one of great public importance. Because this nonfinal order of the county court was an order suppressing evidence in limine,^FN3 the order was appealable to the circuit court under rule 9.140(c)(2). Thus, contrary to the district court's assertion, the order in question is appealable to the district court of appeal under rule 9.030(b)(4)(B) because it is an order from the county court certifying a question as one of great public importance and it is “otherwise appealable to the circuit court under rule 9.140(c).”

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[5] In determining that it did not have jurisdiction to review the type of nonfinal order entered by the county court, the district court relied on the fact that the type of order being appealed, the denial of a motion in limine, was not an authorized motion that the State could directly appeal to a district court of appeal. The court further opined that section 924.07 could not be used to expand the list of appealable orders delineated in rule 9.140(c)(1). We need not reach this issue, however, because it is clear that section 924.07 is constitutional as applied to appeals from the county court to the circuit court because the Legislature has the authority to determine the appeals that may be taken to the circuit court. See art. V, § 5(b), Fla. Const.


CONCLUSION
For the reasons stated above, we hold that the district courts of appeal have jurisdiction to hear appeals from the type of county court order entered in this case, which certified a question of great public importance, because the underlying order was otherwise appealable to the circuit court under rule 9.140(c)(2). We therefore reverse the decision of the district court of appeal and remand to the district court for further proceedings consistent with this opinion.



State v. Ratner  L 63641, *3 -4  (Fla.,2007)