Carlos G. Bertonatti, Appellant,
The State of Florida, Appellee.
final until disposition of timely filed motion for rehearing.
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.
Jo Bondi, Attorney General, and Nikole Hiciano, Assistant
Attorney General, for appellee.
ROTHENBERG, C.J., and SALTER and LUCK, JJ.
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.
of the Evidence
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.
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,
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.
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.
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
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. ...