Yesnes v. State
| Decision Date | 16 November 1983 |
| Docket Number | No. AQ-328,AQ-328 |
| Citation | 440 So.2d 628 |
| Parties | Harold Ivan YESNES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
P. Michael Patterson, Pensacola, for appellant.
Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
The defendant, Yesnes, was convicted upon seven informations charging offenses of sexual battery and producing or possessing illicit photographs depicting sexual conduct by minors. On this appeal, he seeks reversal based on error in the trial court's orders denying defendant's motions to dismiss three of the informations, his motions to suppress photographs and other materials seized by law enforcement officers, and his motion to withdraw his plea of nolo contendere. We affirm in part, reverse in part, and remand.
Based on an affidavit by a Pensacola police officer, a warrant was issued authorizing the search of defendant's residence for "certain photographs depicting in whole or in part the female genitials [sic] in the state of sexual excitement." As a result, the officers searched the premises and seized photographs, magazines, and books which contained explicit or strong sexual conduct. Thereafter, defendant was charged in seven informations with the following offenses.
In Case No. 81-5233, the amended single-count information charged that defendant, between January 1 and December 9, 1981, unlawfully exhibited photographs depicting sexual conduct involving a minor, in violation In Case No. 81-5234, the single-count information charged that defendant, on December 14, 1981, unlawfully possessed with intent to sell photographs depicting sexual conduct involving a minor, in violation of Section 847.014(2)(b)2, Florida Statutes.
of Section 847.014(2)(b)1, Florida Statutes.
In Case No. 81-5235, the single-count information charged that defendant, between August 1 and August 31, 1981, unlawfully committed a sexual battery upon T.M.P., a minor female over the age of eleven years, in violation of Section 794.011(4)(c), Florida Statutes.
In Case No. 81-5236, the three-count information charged in Count One that defendant, on December 26, 1981, committed sexual battery upon S.N., a minor female over the age of eleven years, in violation of Section 794.011(4)(c), Florida Statutes; Count Two charged that defendant, on the same date, unlawfully produced a photograph depicting sexual conduct involving S.N., a minor female, in violation of Section 847.014(2)(a)1, Florida Statutes; and Count Three charged that defendant, on the same date, unlawfully procured S.N., a minor female, to participate in photographs depicting sexual conduct involving a minor, in violation of Section 847.014(2)(a)2, Florida Statutes.
In Case No. 81-5237, the three-count information charged that defendant, on the same date as in Case No. 81-5236, committed the same three offenses with D.R.N., another minor female.
In Case No. 81-5238, the two-count information charged in Count One that defendant, between August 1 and August 31, 1981, unlawfully produced photographs depicting sexual conduct involving T.M.P., the same minor female alleged in Case No. 81-5235, in violation of Section 847.014(2)(a)1, Florida Statutes; Count Two charged that defendant, between the same dates, procured that same minor female to participate in photographs of sexual conduct involving a minor, in violation of Section 847.014(2)(a)2, Florida Statutes.
In Case No. 81-5239, the three-count information charged in Count One that defendant, between July 1 and July 31, 1980, unlawfully committed a sexual battery upon S.D.R., a minor female over the age of eleven years, in violation of Section 794.011(4)(c), Florida Statutes; Count Two charged that defendant, between the same dates, unlawfully produced photographs depicting sexual conduct involving S.D.R., a minor female, in violation of Section 847.014(2)(a)1, Florida Statutes; and Count Three charged that defendant, between the same dates, unlawfully procured that same minor female to participate in photographs depicting sexual conduct by a minor, in violation of Section 847.014(2)(a)2, Florida Statutes.
Defendant filed Rule 3.190(c)(4) motions to dismiss four of the informations. He also filed a motion in all cases, which was later amended, for suppression of the evidence obtained in the search of his residence.
Asserting, among other grounds, the legal insufficiency of the affidavit on which the warrant was issued, the trial court granted defendant's motion to dismiss Counts Two and Three in Cases No. 81-5236 and 81-5237 and Count One of Case No. 81-5238. The court denied the motions to dismiss in all other respects and denied the motions to suppress.
Thereafter, defendant entered a plea of nolo contendere to the remaining charges, reserving his right to appeal the denial of these motions. Exactly a week later, however, defendant notified the court by letter that his nolo plea had not been entered freely, knowingly, and voluntarily because he had been under the influence of drugs at the time and had been coerced by his court-appointed counsel. The court treated the letter as a motion to set aside the nolo plea and, after the hearing (discussed infra), denied it. Defendant was adjudged guilty and sentenced in each case to serve, concurrently, ninety days in jail and ten years probation.
We consider defendant's appeal from the several judgments of conviction as a consolidated appeal.
We find no error in the trial court's denial of the motions to dismiss except as to Count One in Case No. 81-5237. In that case, the state admitted it had no evidence to prove the threat of future retaliation, alleged in Count One. Hence, that count should also have been dismissed. But the briefs indicate that apparently Count One was amended to charge "contributing to the delinquency of a minor," in violation of Section 827.04(3), Florida Statutes, and that defendant entered a nolo plea to that amended charge. The record contains a copy of an "arrest report" indicating defendant was adjudicated guilty of contributing to the delinquency of a minor and sentenced to one year probation and ninety days in county jail on such charge, but the record does not contain any amended information or judgment thereon in Case No. 81-5237. In view of this confused state of the record and because of our disposition of the other issues on this appeal, we decline to consider the propriety and sufficiency of the apparent amendment to that count. On remand, the record should be clarified to reflect the actual disposition of this count.
The search warrant was issued on the basis of an affidavit submitted by an investigating officer which recited the following facts to establish the required probable cause:
The above named subject has in his possession a large quantity of photographs he admits having taken of a large number of young females in various stages of undress depicting in whole or in part the female genitials [sic] in the state of sexual excitement and that he further has directed or performed the taking of said photographs of persons under the age of 18 years old. Also that he has procurred [sic] persons under the age of 18 to participate in such photographs.
Also, that he does now have and keep in his possession such photographs which have been viewed by white female, L.R.F. age 14, which were of other young females under the age of 18 years old. Also, that this same girl was offered a job modeling and coherced [sic] into posing for photos of her breast [sic] on or about the middle of August, 1981, at which time this girl was shown many other photos of other young girls which Mr. Yesnes claimed to have taken for the purposes of modeling, depicting young girls totally nude.
Further information gathered during this investigation [sic] this officer interviewed another confidential informant on 12/9/81, at 4:30 p.m. who claims to have been offered a job with this same man on or about 11/5/81, who also approached her and wanted her to model after first offering her a job making Pizzas [sic]. After going with this man to his house she was warned by another white female employee around the age of 18 not to take the job because this man takes pictures of young girls in the nude. This unidentified white female also informed my informants she had seen photos of young girls performing oral sex on Mr. Yesnes. My informant indicated that her friend, white female L.R.F. had been employed by this man and this girl said she knew of the L.R.F. girl and had seen pictures of her breast [sic]. Informants advised that this subject keeps said photographs on premises.
Defendant contends there is nothing in the affidavit upon which the issuing court could base a finding that the informants were reliable and, for this reason, that the affidavit is legally insufficient to show probable cause to issue a search warrant under the "two-prong test" of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), as applied in Davis v. State, 346 So.2d 141 (Fla. 1st DCA 1977).
The state, on the other hand, argues that the proper test of the affidavit's sufficiency We agree with defendant that the affidavit is totally lacking in facts sufficient to show the requisite veracity or reliability of the unnamed informants and the information supplied by them. The informant's information regarding activity by the defendant within a sufficiently recent time to support a search warrant came from an unknown and unidentified white female whose credibility was not vouched for by the informant, much less the affiant. The last sentence of the affidavit provides the only reference to the location where the photographs might be located. Nowhere does the affiant state that the photographs were taken or displayed at the location sought to be...
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Dufour v. State
...a .25 caliber automatic. Appellant initially argues that the weaknesses rendering the affidavits insufficient in Yesnes v. State, 440 So.2d 628 (Fla. 1st DCA 1983), and King v. State, 410 So.2d 586 (Fla. 2d DCA 1982), similarly inflict the instant affidavit. We A crucial factor distinguishe......
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Tanzi v. State
...(emphasis supplied). Baker v. State, 408 So.2d 686, 687 (Fla. 2d DCA 1982). Id. at 274 (emphasis omitted) (quoting Yesnes v. State, 440 So.2d 628, 634 (Fla. 1st DCA 1983)). At the trial level, "[i]n order to show cause why the plea should be withdrawn, mere allegations are not enough; the d......
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Robinson v. State, SC03-1229.
...Robinson claimed that the trial court erred in denying the motion to withdraw the plea. This Court disagreed, citing Yesnes v. State, 440 So.2d 628 (Fla. 1st DCA 1983), in which the First District Court of Appeal analyzed the requirements for withdrawing Rule 3.170(f), Florida Rules of Crim......
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