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Bertonatti v. State

Florida Court of Appeals, Third District

June 20, 2018

Carlos G. Bertonatti, Appellant,
v.
The State of Florida, Appellee.

         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. 10-1742 Victoria Del Pino, Judge.

          Fischer Redavid PLLC, and Jordan Redavid, for appellant.

          Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

          Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.

          ROTHENBERG, C.J.

         Carlos G. Bertonatti ("Bertonatti") appeals the trial court's order denying his motion to vacate his guilty plea to: (1) one count of manslaughter while driving under the influence and failing to render aid, a first degree felony; (2) two counts of resisting a law enforcement officer without violence, first degree misdemeanors; and (3) one count of fleeing or attempting to elude a law enforcement officer where lights and sirens had been activated, a third degree felony, which was filed pursuant to Florida Rule of Criminal Procedure 3.850 on the basis of ineffective assistance of trial counsel. Because we conclude that Bertonatti has failed to demonstrate a reasonable probability that, but for the claimed errors, he would not have pled guilty and would have insisted on going to trial, we affirm. See Grosvenor v. State, 874 So.2d 1176, 1181 (Fla. 2004).

         Summary of the Evidence

         At approximately 8:00 a.m., Bertonatti veered his vehicle into the bicycle lane on Bearcut Bridge; struck and killed a bicyclist, Christophe Lecanne; failed to stop or attempt to render aid to Mr. Lecanne; and subsequently fled from the police when they pursued and tried to stop him with lights and sirens activated. The evidence revealed that the impact to the bicycle and to Mr. Lecanne was "horrific." When Bertonatti's vehicle struck Mr. Lecanne's bicycle, Mr. Lecanne was ejected, and his airborne body struck Bertonatti's vehicle itself, bounced, and then impacted the vehicle again before finally being thrown to the pavement. The hood of Bertonatti's vehicle was damaged and the front windshield was shattered by the impact of Mr. Lecanne's body. Mr. Lecanne's bicycle, which became lodged under the grill of the vehicle, was dragged two-and-one-half miles, making what was described by the witnesses as an "ungodly, loud scraping metal sound." Witnesses also described Bertonatti's attempts to dislodge the bicycle by making zigzag maneuvers with his vehicle. Mr. Lecanne, who was being attended to by civilian witnesses, died on the scene from grievous wounds.

         Based on the numerous calls to the police by witnesses of Bertonatti's flight, law enforcement immediately responded and began pursuing Bertonatti with lights and sirens activated. Instead of stopping, Bertonatti increased his speed and fled from law enforcement, almost striking slower-moving vehicles along the ten-mile flight to his residence, where he was finally apprehended. Upon law enforcement's contact with Bertonatti, he exhibited all of the indicia of impairment. He had bloodshot watery eyes, his face was flushed, and his breath smelled of alcohol. When asked to perform the standard field sobriety exercises, Bertonatti agreed to do them and told Officer Slimack that he "had a few drinks and I'm taking some Tylenol stuff, everything was blurry." Officer Slimack testified that Bertonatti performed the field sobriety exercises "shockingly poorly" and that he was "very, very impaired."

         After Bertonatti was transported to a fire station to withdraw his blood, he became very hostile. He refused to exit the transport vehicle and had to be physically removed. He refused to cooperate with the blood draw and had to be strapped to a board to allow collection of his blood. The toxicology evidence revealed that Bertonatti's blood alcohol level was .122 at approximately one hour after he struck and killed Mr. Lecanne. The evidence also revealed that Bertonatti was at a nightclub for several hours where he had purchased several alcoholic drinks and was on his way home when his vehicle struck Mr. Lecanne on his bicycle.

         Prior to trial, Bertonatti informed his lawyers and the trial court that he did not wish to go to trial. Bertonatti's lawyers then informed the trial court that although they had been unsuccessful in reaching a negotiated plea to resolve the case with the State, Bertonatti, however, wished to enter an open plea of guilty to the charges and, after presenting mitigating evidence, to allow the trial court to determine the appropriate sentence. On February 12, 2013, the trial court conducted a preliminary colloquy of Bertonatti. Specifically, the trial court asked Bertonatti if he needed additional time to speak to his attorneys about any issue regarding his case and his decision to plead guilty to the charges. Bertonatti assured the trial court at least twice that he did not need to speak to his attorneys, and that he had sufficient time to consider his decision, which was made freely, voluntarily, and willfully. Importantly, the trial court told Bertonatti that the matter was going to be reset to allow the victim's family to travel from out of the country in order to be present for Bertonatti's plea and, thus, his decision to plead guilty was not irrevocable-that his actual plea would be taken on February 19, 2013.

         On February 19, 2013, as agreed to by all of the parties and lawyers, Bertonatti formally entered his open plea of guilty to DUI manslaughter failing to render aid, two counts of resisting a law enforcement officer without violence, and fleeing or attempting to elude a law enforcement officer where lights and sirens had been activated. Based upon his plea, the State nolle prossed the charge of leaving the scene of a crash involving death because it would have constituted double jeopardy for Bertonatti to have been convicted of both that offense and DUI manslaughter failing to render aid. Prior to accepting Bertonatti's plea, the trial court conducted a very thorough plea colloquy. The victim's family members addressed the court, Bertonatti addressed the victim's family, and the trial court continued the hearing to allow Bertonatti to present evidence in mitigation for the trial court's consideration before imposing a sentence.

         On September 9, 10, and 11, 2013, evidence was presented and arguments were made regarding the appropriate sentence, and on September 12, 2013, the trial court sentenced Bertonatti to twelve years of incarceration followed by two years of community control and eight years of probation and issued a very detailed sentencing order. ...


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