Opinion
CASE NO.: SC17-460
11-16-2018
STATE OF FLORIDA Petitioner(s) v. VICTOR GUZMAN Respondent(s)
Lower Tribunal No(s).: 3D14-776 132004CF0079030001XX
Upon review of the Respondent's response to this Court's Order to Show Cause dated May 7, 2018, the Court has determined that it should accept jurisdiction in this case. It is ordered that the Petition for Review is granted, that the Third District Court of Appeal's decision in this case is quashed, and that this case is remanded for reconsideration in light of our decision in State v. Smith, 241 So. 3d 53 (Fla. 2018). No Motion for Rehearing will be entertained by the Court. See Fla. R. App. P. 9.330(d)(2). CANADY, C.J., and LEWIS, POLSTON, LABARGA, and LAWSON, JJ., concur.
PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs. PARIENTE. J., dissenting.
I dissent from the Court's decision to quash the Third District Court of Appeal's decision in Guzman v. State, 211 So. 3d 204 (Fla. 3d DCA 2016), based on our opinion in State v. Smith, 241 So. 3d 53 (Fla. 2018), because, on the face of the record, it is virtually certain that all charges against Guzman would have been dismissed as a matter of law had counsel raised the statute-of-limitations defense. Guzman, 211 So. 3d at 209. Instead, Guzman received a thirty-year sentence for attempted felony murder and fifteen-year sentences for lewd and lascivious and aggravated battery (to run concurrently). Therefore, there could be no strategic reason for trial counsel not to raise the statute of limitations and seek dismissal of all charges.
As the Third District stated, this is one of the "rare instances in which ineffective assistance of trial counsel appears on the face of the record." Id. at 207 n.3 (quoting Harper v. State, 43 So. 3d 174, 175 (Fla. 3d DCA 2010)). To deny relief in this case will require Guzman to file a postconviction motion where a finding of deficiency and prejudice is unquestionable. Accordingly, I would approve the Third District's decision, even in light of our opinion in Smith, which addressed only the question of fundamental error.
In my concurring opinion in Smith, joined by Justice Quince, I explained how a determination that ineffective assistance of counsel appears on the face of the record changes the analysis in this situation, stating:
I write separately to expand on the majority's statement that "our holding does not preclude a defendant prejudiced by trial counsel's nonstrategic failure to raise a statute-of-limitations defense from asserting a claim of ineffective assistance of counsel." Majority op. at 56; see majority op. at 56 n.3. If ineffective assistance of counsel appears on the face of the record, then an appellate court can consider and remedy the error. See Sims v. State, 998 So. 2d 494, 502 (Fla. 2008); Mansfield v. State, 758 So. 2d 636, 642 (Fla. 2000). Having this alternative is critical, especially in cases where all crimes for which the defendant could be convicted are barred by the statute of limitations.Smith, 241 So. 3d at 57 (Pariente, J., concurring).
Although the Third District's opinion in Guzman was issued before this Court's opinion in Smith, in this case, unlike Smith, there could be no conceivable basis for defense counsel to not raise the statute-of-limitations issue before the trial court. While in Smith the question of prejudice would remain even if defense counsel had raised the statute-of-limitations defense, id., a motion to dismiss in this case would have eliminated all of the charges against Guzman, thereby eliminating Guzman's sentences. Guzman, 211 So. 3d at 206. As the Third District explained:
A "subsequently filed information, which contains language indicating that it is a continuation of the same prosecution, timely commenced will not be considered an abandonment of the first information and therefore will not be barred by the statute of
limitations." Rubin [v. State], 390 So. 2d [322,] 324 [(Fla. 1980)]. However, where the state has "brought a new charge, alleging a new and distinct crime with different elements, under a completely different statute," the statute of limitations requires dismissal of the new charge. Labrador v. State, 13 So. 3d 1070, 1072 (Fla. 3d DCA 2007). Since the initial information did not charge a crime, the 2010 Count 1 was not a continuation of anything and must be considered a new charge. A substantial change in the charge contained in an amended information will require dismissal. Johnston v. State, 283 So. 2d 120, 121 (Fla. 1st DCA 1973).Id. at 208. Further, although "a continuation of the 2004 charge, for statute of limitations purposes, the charge [for Count 2] was time-barred as of the 2004 information." Id. at 207. Finally, the charge in Count 3 was completely different between the old and new information and, therefore, "the continuation principle does not save this count." Id. at 209.
It is true that the "state may amend the charging document to correct the error after the applicable statutory period has elapsed." M.F. v. State, 583 So. 2d 1383, 1386 (Fla. 1991). However, such an amendment may not actually change the substantive charge and may not prejudice the rights of the defendant. Id. Where a more serious, amended charge alleges an act not originally charged, then the amended charge must independently satisfy the statute of limitations. Bongiorno v. State, 523 So. 2d 644, 645 (Fla. 2d DCA 1988).
Had the crimes in the original and amended information been identical, there would have been a continuation of the charge, and no limitations bar. Rubin, 390 So. 2d at 324. However, where there is "nothing in the last information to link it with the first," the state is deemed to have abandoned the original information, see Fridovich v. State, 562 So. 2d 328, 330 (Fla. 1990), and the amended information will be subject to the statute of limitations bar. The initial information [in this case] did not charge an offense in Count 1. The amended information Count 1 contains allegations different from the initial information Count 1, constituting a new charge. Rubin, 390 So. 2d at 324. The new charge filed beyond the statute of limitations was barred.
Because the Third District determined in Guzman that ineffective assistance of counsel appears on the face of the record, the Third District properly considered and remedied the error. Thus, I would approve the Third District's decision.
Accordingly, I dissent. QUINCE, J., concurs. A True Copy
Test: /s/_________
John A. Tomasino
Clerk, Supreme Court dl
Served: ROBERT KALTER
DOUGLAS JAMES GLAID
HON. HARVEY RUVIN, CLERK
HON. MARY CAY BLANKS, CLERK
HON. DENNIS JAMES MURPHY, JUDGE