final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Steven J. Levin, Judge; L.T. Case No.
Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Assistant Attorney General, West Palm Beach, for appellee.
affirm appellant's convictions for attempted first-degree
murder with a weapon; attempted arson of a structure where
persons are normally present; and aggravated battery with
great bodily harm, permanent disability or permanent
disfigurement. He has raised seven issues, none of which are
he claims that fundamental error occurred when he was not
present at a bench conference. During the conference the
judge notified the lawyers that a defense expert witness was
the judge's friend and if there were any controversy with
respect to the witness's testimony, the judge would have
to recuse himself. Both sides assured the judge that there
was no dispute as to the expert's testimony. Because no
objection was placed on the record regarding appellant's
absence from the bench conference, in order for the appellate
court to review this issue appellant must show that it
constitutes fundamental error.
right to be present at all crucial stages of the trial
"does not confer upon the defendant the right to be
present at every conference at which a matter pertinent to
the case is discussed, or even at every conference with the
trial judge at which a matter relative to the case is
discussed." Shellito v. State, 121 So.3d 445,
461 (Fla. 2013) (quoting Orme v. State, 896 So.2d
725, 738 (Fla. 2005)). Moreover, even if appellant should
have been at the bench conference, he cannot show prejudice,
because no adverse rulings were made. Ault v. State,
53 So.3d 175, 202 (Fla. 2010). No fundamental error
another issue, he claims that the court fundamentally erred
in conducting a competency hearing without following the
procedures of Florida Rules of Criminal Procedure 3.210 and
3.211, because an expert testified to appellant's
competency without first furnishing a written report. We
disagree, as the court did not conduct a true competency
hearing within the meaning of rule 3.210, because there was
never any reasonable doubt as to appellant's competency.
the case was called for trial, defense counsel advised the
court that he had an expert psychologist who had examined the
appellant for purposes of a determination of an insanity
defense and for sentence mitigation. The court then asked
whether defendant was competent. Defense counsel stated that
he always asks his expert to "make sure he's
competent," but counsel did not express any doubt as to
appellant's competency. In an abundance of caution, the
judge asked to speak to the expert, who was then reached by
telephone. After the judge swore the expert in, the expert
stated that he found the defendant to be competent to stand
time did the judge have any "reasonable ground to
believe that the defendant is not mentally competent to
proceed," which is the predicate for holding a
competency hearing. Fla. R. Crim P. 3.210(b). The judge
simply exercised a great deal of caution in calling the
expert to inquire about appellant's competency, because
another case assigned to the judge had been reversed for
failure to conduct a competency inquiry. Even if the hearing
was a rule 3.211 hearing, the defendant did not object to the
lack of a written report, and we do not deem the failure to
supply one as fundamental error where the court had the
benefit of the expert's live testimony.
reject the remaining issues as without merit and provide the
following citations of support: 1) The court did not err in
failing to provide reasons for denial of a downward
departure. See Venter v. State, 901 So.2d 898 (Fla.
4th DCA 2005) ("We know of no principle or case . . .
which holds that due process includes the right of an express
explanation on why a motion to downward depart was denied. We
decline to recognize such a right."); 2) The court did
not err in denying judgment of acquittal on attempted arson
charge where State failed to prove that defendant
intentionally sought to burn a structure. See Knighten v.
State, 568 So.2d 1001, 1002 (Fla. 2d DCA 1990) (arson is
a general intent crime, and all that the State needs to show
is that the defendant intentionally started the fire, not
that he intended to damage the structure); 3) The aggravated
battery charge was not fundamentally defective for failing to
identify victim. See Brown v. State, 888 So.2d 130,
131 (Fla. 4th DCA 2004) (no prejudice to defendant in defect
in information with respect to name of victim where no
objection was made, defendant was not prejudiced in his
defense, and victim testified at trial); 4) Convictions for
aggravated battery and attempted first-degree murder do not
violate double jeopardy. See Gordon v. State, 780
So.2d 17, 22 (Fla. 2001) (no double jeopardy violation for
convictions of attempted first degree murder and aggravated
battery with a deadly weapon as each has an element distinct
from the other), receded from on other grounds in Valdes
v. State, 3 So.3d 1067, 1069 (Fla. 2009); 5)
Appellant's claim that the court applied the wrong
standard in reviewing the motion for new trial based upon the
verdict being contrary to the evidence was not preserved.
See Carratelli v. State, 832 So.2d 850, 856 (Fla.
4th DCA 2002) (a party must obtain a ruling from the trial
court to preserve an issue for review).
Warner, Gross and ...