Gurican v. State, 89-125
| Decision Date | 21 November 1989 |
| Docket Number | No. 89-125,89-125 |
| Citation | 552 So.2d 975,14 Fla. L. Weekly 2690 |
| Parties | 14 Fla. L. Weekly 2690 Nancy Elizabeth GURICAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Leo A. Thomas of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.
Robert A. Butterworth, Atty. Gen. and John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Nancy Elizabeth Gurican appeals her conviction and sentence for trafficking in cocaine in an amount in excess of twenty-eight grams. The issue on appeal is whether the trial court erred in failing to allow Gurican the final statement during closing arguments to the jury. In addition, the state has filed a motion to dismiss the appeal, urging that this court adopt the federal "escape rule" as pronounced by the Eleventh Circuit Court of Appeals in United States v. Holmes, 680 F.2d 1372 (11th Cir.1982), cert. denied, 460 U.S. 1015, 103 S.Ct. 1259, 75 L.Ed.2d 486 (1983). We reverse in regard to the issue raised on appeal, deny the motion to dismiss, and certify the questions raised by the respective subjects as questions of great public importance. Art. V., § 3(b)(4), Fla. Const. (1980).
The record reflects that Gurican became involved in what proved to be a sting operation at the request of a close friend, Jenny Ramirez. A confidential informant who had known Ramirez and her family for many years, gave Ramirez's telephone number to an undercover officer as someone who could arrange a cocaine purchase. After several attempts, the undercover officer contacted Ramirez by telephone. Later, the officer met Ramirez at a bar. At that time Ramirez furnished a sample of cocaine, and the two arranged a second meeting to complete the proposed transaction.
According to Ramirez's testimony, Billy Lister, the confidential informant, had been urging her to arrange a cocaine purchase for his girl friend. Ramirez said she refused Lister's requests on many occasions. However, Lister was aware that Ramirez's daughter suffered from chronic and painful pancreatitis, and knew also that Ramirez needed money for her daughter's surgery. Lister persuaded Ramirez that the drug deal would finance her daughter's medical care. Ramirez confided in her friend, Nancy Gurican, the appellant in the instant case. Gurican advised Ramirez not to get involved in a drug deal, and to stay away from Billy Lister. Ramirez insisted she needed the money for her daughter's surgery. She said she asked Gurican to assist in the drug transaction, because Gurican was a close and trusted friend. Ramirez further testified that initially Gurican refused to participate, but Ramirez persuaded her to do so.
After one aborted meeting, Ramirez again established contact with the undercover officer at a lounge where the transaction was to be completed. Ramirez told the officer that someone was bringing the cocaine to the bar. A short time later, Gurican arrived. Ramirez and Gurican conferred in low tones which were inaudible to the undercover officer, then Ramirez told the officer that they would make the exchange in the ladies' room. The officer entered one stall, and Ramirez and Gurican entered the adjacent stall. Ramirez passed the cocaine under the partition to the officer, and the officer placed the money for the deal in Gurican's hand, which was extended under the partition. The officer then left the ladies' room and signalled back-up officers, one of whom entered and arrested Ramirez and Gurican.
Ramirez and Gurican were tried jointly, and the same lawyer represented both co-defendants. Ramirez's theory of defense was entrapment, predicated on the confidential informant's knowledge that she was susceptible to dealing in drugs due to her need for money for her daughter's medical care. To that end, she testified in her own behalf, and presented the testimony of the physician who had treated her daughter several times on an emergency basis, as well as the testimony of her daughter, and of family friends. Gurican put on no defense.
The trial concluded June 5, 1984. Defense counsel sought and was denied the final argument to the jury on Gurican's behalf. A mistrial was declared with regard to Ramirez, and a guilty verdict was rendered with regard to Gurican. Gurican remained free on bond until sentencing, which originally was set for August 1, 1984. Sentencing actually took place on December 12, 1988, in excess of four years later. Although the record before this court contains no information concerning the delay in sentencing, the state's motion for dismissal represents that Gurican absconded from the jurisdiction of the circuit court to avoid sentencing. Gurican's response to the dismissal motion acknowledges that she did indeed abscond, but states that she voluntarily resubmitted herself to the court's jurisdiction.
On December 12, 1988, the trial court sentenced Gurican to a guidelines sentence of four years, the sentence to include the three year mandatory minimum term. See § 893.135(1)(b)1., Fla.Stat. (1983). Gurican's notice of appeal was filed timely. On April 24, 1989, some three to four months later, the state filed its motion to dismiss the appeal.
In seeking dismissal, the state stresses that the long delay would be extremely prejudicial to the state, in the event a new trial is ordered. The state asks this court to apply the reasoning of the federal "escape rule" as it is explicated in United States v. Holmes. In Holmes, the court held that a defendant who flees after conviction, but before sentencing, has waived the right to appeal unless he can demonstrate that his absence was due to matters beyond his control. In the alternative, the state suggests that we certify the question to the Florida Supreme Court as a question of great public importance. Gurican acknowledges that the state's argument is an accurate reflection of the reasoning of the federal courts, but notes that no Florida court has applied the rule in circumstances such as those presented in this case, i.e., where one found guilty of a criminal offense absconded before sentencing and before filing a notice of appeal.
As the state contends, the federal courts have extrapolated the reasoning set forth in Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), thereby extending the traditional escape rule, which provides for dismissal of an appeal of one who flees the jurisdiction of the court after filing a notice of appeal. Under recent federal cases, a subsequent appeal may be dismissed if the person fled the jurisdiction of the court before sentencing and before filing a notice of appeal. See, e.g., United States v. London, 723 F.2d 1538, 1539 (11th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2684, 81 L.Ed.2d 878 (1984); United States v. Holmes, 680 F.2d 1372 (11th Cir.1982), cert. denied, 460 U.S. 1015, 103 S.Ct. 1259, 75 L.Ed.2d 486 (1983); United States v. Persico, 853 F.2d 134 (2d Cir.1988); United States v. Puzzanghera, 820 F.2d 25, 27 (1st Cir.), cert. denied, 484 U.S. 900, 108 S.Ct. 237, 98 L.Ed.2d 195 (1987).
In Holmes, as in the instant case, the defendant failed to appear for sentencing. Two years later, he was apprehended and returned to Georgia, where the District Court sentenced him to seventeen years incarceration. Holmes appealed, and the government moved to dismiss on the ground that he had abandoned his right to an appeal by remaining a fugitive for two years. In support of dismissal, the government relied upon cases in which an appeal had been filed before the defendant became a fugitive from justice. Although Holmes fled before sentencing and thus before filing a notice of appeal, the government contended that the policy considerations of the cited cases justified dismissal in the attendant circumstances. The Eleventh Circuit agreed, relying particularly on the rationale recited in Molinaro v. New Jersey. 1
Our research has revealed no instance in which a Florida court ruled that a defendant abandons his right to appeal if he flees the jurisdiction before sentencing, and before filing a notice of appeal. Historically, when Florida courts have declined to process such appeals, it has been because the respective defendants were beyond the jurisdiction of the court. For example, in Mitchell v. State, 294 So.2d 395 (Fla. 1st DCA 1974), after conviction and while his appeal was pending, Mitchell escaped. While Mitchell was still at large, the state filed a motion to dismiss, which was granted. After his apprehension, Mitchell sought reinstatement of the appeal. The court held that by escaping and thereby rendering himself not amenable to the orders of the court, he was deemed to have abandoned his appeal. Therefore, the prior order dismissing the appeal was proper. 294 So.2d at 397. Similarly, in Decree v. State, 180 So.2d 667 (Fla. 1st DCA 1965), Decree's attorney filed a motion to dismiss the appeal without prejudice, on the ground that Decree had escaped and was unable to confer with his attorney. The motion to dismiss was granted as an exercise of the court's discretion.
However, in Marshall v. State, 344 So.2d 646 (Fla. 2d DCA), cert. denied, 353 So.2d 679 (Fla.1977), as in the instant case, the state's motion to dismiss was not made until the escapee was back in custody. [Now] Justice Grimes, in writing for the court, observed that the unique feature of the case was that the appellant was back within the jurisdiction of the court, albeit involuntarily, when the motion to dismiss was considered. 344 So.2d at 647. After a review of the relevant case law, the court held:
Our Florida Constitution guaranteed convicted persons of the right of appeal, ... Moreover, our legislature has established escape as a separate...
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State v. Gurican
...Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for respondent. McDONALD, Justice. We review Gurican v. State, 552 So.2d 975, 979 (Fla. 1st DCA 1989), in which the district court certified the following questions as being of great public Should Florida's appellate cou......