DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
IVAN LOUIS RODRIGUEZ,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-2988
[October 16, 2019]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Steven J. Levin, Judge; L.T. Case No. 2015CF000952AXX.
Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
We 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 meritorious.
First, 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.
The 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 occurred. 1
In 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.
When 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 trial.
At no 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.
1 Appellant suggests that because he was deprived of the right to be present at
the bench conference he should have the opportunity to determine whether to
move for disqualification of the judge based upon bias. First, there is nothing in
this record as to whether his lawyer informed him of what the judge revealed.
Second, we find it hard to believe that he would have moved to disqualify the
judge because of friendship with appellant’s own expert.
2
We 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).
Affirmed.
WARNER, GROSS and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3