Not
final until disposition of timely filed motion for rehearing.
An
Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County Lower Tribunal
No. 09-28701, Dava J. Tunis, Judge.
Morris
Mariah, in proper person.
Pamela
Jo Bondi, Attorney General, for appellee.
Before
ROTHENBERG, SALTER, and FERNANDEZ, JJ.
ROTHENBERG, J.
Morris
Mariah appeals the trial court's omnibus order denying
his motions to correct, modify, or set aside what Mariah
claims is an illegal sentence. Mariah contends that his
cumulative twenty-year habitual felony offender sentence is
an illegal sentence because: it exceeds the maximum period
set forth by law; the trial court failed to determine whether
there was a factual basis to impose an habitual offender
sentence; Mariah was both insane and incompetent when he
entered his plea; and the trial court's finding of
competency was based on "stale" reports and
testimony. Because we find that each of Mariah's claims
are without merit, we affirm.
Mariah
was on probation in case numbers F04-36496 (for burglary of a
structure) and F05-3099 (for aggravated battery on a prison
official) when he was charged in case number F09-28701 with
committing nine offenses including burglary, resisting an
officer with violence, two counts of aggravated battery on a
police officer with a deadly weapon, and one count of
aggravated assault on a law enforcement officer. After his
2009 arrest, Mariah was sent to South Florida Evaluation and
Treatment Center ("SFETC") based on a finding of
incompetency. Upon his return, and after being re-evaluated,
the trial court conducted a competency hearing, found that
Mariah was competent to proceed, and subsequently accepted
Mariah's plea as to the violation of his probation and
the new offenses. Based on the negotiated plea, Mariah was
sentenced to fifteen years state prison followed by five
years of probation as a habitual felony offender.
We find
nothing illegal about that sentence. The sentence, which was
as a result of a negotiated plea, does not exceed the
statutory maximum. The trial court colloquied Mariah prior to
making a finding that Mariah qualified to be sentenced as a
habitual felony offender. Mariah admitted that he was the
person convicted of the offenses in case numbers F04-36496
and F05-3099 and that his convictions were not overturned on
appeal or pardoned by the Governor. Aggravated battery on a
law enforcement officer with a deadly weapon is a first
degree felony punishable by thirty years in prison, and
aggravated assault on a law enforcement officer is a second
degree felony punishable up to fifteen years in prison. The
other offenses Mariah was charged with were third degree
felonies punishable up to five years in prison. It is
therefore clear that the sentence imposed was a legal
sentence.
Mariah's
claim of insanity and/or incompetency at the time he entered
his plea is also refuted by the record. The transcript of the
2012 competency hearing reflects that Dr. Sonia Ruiz
initially evaluated Mariah in 2009 prior to Mariah's
commitment to SFETC, again in June of 2010 upon his return to
Miami-Dade County, and then a third time just prior to the
competency hearing in 2012. Dr. Ruiz found that Mariah was
competent to proceed in both 2010 and 2012. Dr. Ruiz
testified that even when Mariah was first examined in 2009,
she had concerns that he was feigning his symptoms, but out
of caution, she recommended that he be sent to SFETC for an
evaluation and treatment for depression. Dr. Ruiz's
finding of competency in 2012 was based on her evaluations of
Mariah, her review of his records at SFETC and the Miami-Dade
County Jail, and her direct contact with people at both
facilities. She found he was malingering and competent to
proceed.
Similarly,
Dr. Ralph Richardson evaluated Mariah in July 2010, and then
again in January 2012 just before the competency hearing. On
both occasions, he concluded that Mariah was malingering and
competent to proceed. Dr. Richardson noted that even the
mental health professionals at SFETC had concluded that
Mariah was malingering.
In
contrast, Dr. Michael Di Tomaso, a witness appointed on
behalf of the defendant, as opposed to a court-appointed
expert, opined that Mariah was not competent to proceed. The
trial court, however, found Dr. Di Tomaso's conclusion
"incredulous." The trial court specifically noted
that Dr. Di Tomaso, who had no prior exposure to Mariah, did
no testing (both Dr. Ruiz and Dr. Richardson performed
extensive testing), reviewed no records, reviewed no reports,
and did not attempt to speak with anyone at the Miami-Dade
County Jail or SFETC to confirm or call into question
Mariah's presentation.
As
reflected, Dr. Di Tomaso's testimony conflicted with Dr.
Ruiz's and Dr. Richardson's testimony as to
Mariah's competency. The trial court had the opportunity
to assess the testimony and credibility of the three mental
health experts, and in doing so, rejected Dr. Di Tomaso's
testimony. As Dr. Ruiz's and Dr. Richardson's
testimony was sufficient to sustain a determination that
Mariah was competent, the trial court, as the fact-finder,
was well within its discretion to reject Dr. Di Tomaso's
testimony. See Alston v. State, 894 So.2d 46, 54
(Fla. 2004) ("[W]hen the experts' reports or
testimony conflict regarding competency to proceed, it is the
trial court's responsibility to consider all of the
relevant evidence and resolve such factual disputes.");
see also Hernandez-Alberto v. State, 126 So.3d 193
(Fla. 2013) (same). Because there was sufficient evidence to
support the trial court's conclusion, this Court cannot
substitute its judgment for that of the trial court.
Alston, 894 So.2d at 54. Therefore, as Mariah has
failed to demonstrate that the ...