Marti v. State

756 So. 2d 224, 2000 WL 482835
CourtDistrict Court of Appeal of Florida
DecidedApril 26, 2000
Docket3D98-1163
StatusPublished
Cited by10 cases

This text of 756 So. 2d 224 (Marti v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marti v. State, 756 So. 2d 224, 2000 WL 482835 (Fla. Ct. App. 2000).

Opinion

756 So.2d 224 (2000)

Alexis MARTI, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D98-1163.

District Court of Appeal of Florida, Third District.

April 26, 2000.

*225 Roderick D. Vereen, Miami, for appellant.

Robert A. Butterworth, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.

Before COPE, SHEVIN and SORONDO, JJ.

SORONDO, J.

Alexis Marti (defendant) appeals from a final judgment of conviction and sentence. We affirm.

Defendant was charged by amended information with attempted sexual battery with a deadly weapon or force, attempted second degree murder and burglary with an assault. Prior to jury selection, he filed a motion to discharge his court appointed attorney. In a written motion filed by defendant pro se, he alleged that his lawyer was not competent to properly prepare a defense and that she had failed to communicate with him personally or via the telephone and failed to review with him any progress on the case. He asserted that as a result his trust in her had deteriorated to the point where he did not believe in her ability to properly represent him. He further asserted that he was not requesting self-representation.

The trial court found that defense counsel was competent and denied the motion without making any inquiry of defendant or counsel.

*226 The facts of the case follow: Gladys Valdez, a teacher at Riverside Elementary, testified that on October 31, 1995, she was assaulted in the school's covered parking garage. She related that she had dropped a bag of candy and that a man who she later identified as her assailant helped her to pick it up. Afterward, she could not locate her car keys and he suggested that she might have left them in her vehicle. When she returned to the car to look, the assailant pushed her into the vehicle and began hitting her in the face. He punched her repeatedly and tried to raise her dress. She struggled and he told her if she stopped fighting he would stop hitting her. Valdez began honking the horn and kicking at him.

Valdez testified that at one point her assailant began choking her so hard that thought she blacked out for a few moments. Valdez recalled getting out of the vehicle and collapsing on the floor of the garage. She saw the assistant principal, Dr. Dukes, ran toward him and fell into his arms.

Valdez was treated at the hospital, where her injuries were photographed. She was shown "mug" shots and was initially unable to identify anyone. On November 9, 1995, she was shown a photographic line-up and immediately identified defendant as her assailant. Valdez also identified her assailant in court.

Gregory Kelly (another teacher), Dr. Dukes, and Kevin Agard, the school security guard, all testified regarding the incident. Kelly and Agard were walking nearby when they heard the car horn. Kelly and Agard saw a man wearing a polka-dot shirt and greenish-brown pants walk past them and then Valdez appeared, yelling "help me." Kelly testified that she was covered in blood and Agard testified that she appeared battered. The assailant took off running and Kelly and Agard gave chase before losing him. During the chase, Ms. Valdez's assailant got his pants leg caught on the fence he was trying to climb and fell to the ground, landing on his face and sustaining a laceration to the bridge of his nose.

Kelly identified defendant as the assailant, but testified that he had been unable to identify anyone when shown a photo array by police.[1] Agard testified that he was unable to identify anyone when initially shown photos by police, but when he was shown a photo array on November 9th, he was able to identify the assailant. Dr. Dukes was unable to identify the assailant.

Defendant's friend, Julio Calero, testified that he went out with defendant the night before the assault. Calero could not recall what defendant was wearing but testified that he may have told the police that defendant wore a shirt with polkadots. Calero awoke the next morning to find defendant asleep on his couch wearing only shorts and a t-shirt. Calero testified that Enrique Acosta had brought defendant there.

Acosta testified that he was in New York on the morning of October 31, 1995. However, he related that sometime in October, defendant came to his house in the early morning hours stating that he had been mugged, with blood on his face. Acosta offered to help defendant find the person that mugged him. Defendant rejected the offer and asked Acosta drive him to Calero's house. Acosta could not recall what defendant was wearing.

Officer Deborah Payne testified that witnesses were shown photos after the incident but no one identified the perpetrator. After defendant's arrest on November 9th, photos were taken of him and a photographic line-up was compiled. Officer Payne testified that Kelly was not able to pick out any person, while Agard and Valdez identified defendant.

*227 Lt. Rodriguez testified that he questioned both Acosta and Calero regarding the clothing defendant wore on October 30th and 31st. He was told by both that defendant was wearing a polka-dot shirt and khaki pants.

Defendant was found guilty of simple battery, attempted second degree murder and burglary with an assault. He was sentenced to 364 days on count one, fifteen years as a habitual violent offender on count two and life imprisonment on count three.

Defendant raises two issues in this appeal. First, he claims that the trial court failed to conduct an adequate Nelson[2] inquiry. The state concedes that no Nelson inquiry was conducted but argues that none was required because defendant's allegations in support of his motion to discharge his court-appointed attorney were insufficient to trigger the need for an inquiry. Defendant's second claim of error is that in the wake of the Florida Supreme Court's decision in State v. Gray, 654 So.2d 552 (Fla.1995), the crime of attempted second-degree murder is a nonexistent crime, or, in the alternative, if it does exist, the evidence presented by the state was insufficient. The state argues that this Court's own precedent, as well as that of the Florida Supreme Court, establish the existence of the offense and that the evidence presented in the lower court was sufficient to establish its existence in this case.

Addressing defendant's second argument first, in Pitts v. State, 710 So.2d 62 (Fla. 3d DCA 1998), this Court stated:

Since Gray was confined, by its terms, to the offense of attempted first degree felony murder, and since the Florida Supreme Court has expressly recognized the existence of the crime of attempted second degree murder and further, has held that the crime is one requiring only general intent, not the specific intent to kill, we reject the defendant's argument on this point.

Id. at 62-63 (citation omitted). We adhere to that position but certify the following question to be one of great public importance:

DOES THE CRIME OF ATTEMPTED SECOND DEGREE MURDER EXIST IN FLORIDA?

See Brown v. State, 733 So.2d 598 (Fla. 5th DCA), review granted, 744 So.2d 452 (Fla. 1999).

We disagree with defendant's alternative argument that if the crime exists, the state failed to prove it in this case. Ms. Valdez testified that defendant choked her "very hard" and that at one point she thought she had died. She further testified that she thought she had lost consciousness at one point.

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Cite This Page — Counsel Stack

Bluebook (online)
756 So. 2d 224, 2000 WL 482835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marti-v-state-fladistctapp-2000.