text:
    Laird BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-869.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Laird Bennett appeals the sentence imposed after he violated his probation, asserting that the sentence was illegal. We affirm.

Bennett was sentenced as a habitual offender to a term of years followed by probation. Later, in exchange for a sentence of 49 months, Bennett admitted violating the terms of probation. At the plea hearing, as the court began the plea colloquy, defense counsel asked the court if it would release Bennett pending sentencing. The prosecutor, who objected to the release, suggested that if Bennett were released, there should be conditions attached to the release and repercussions for failing to meet the conditions, as in Quarterman v. State, 527 So.2d 1380 (Fla.1988). The court and Bennett, along with defense counsel, agreed that if Bennett did not appear for sentencing as ordered, or if he committed another offense, the court could impose a ten-year habitual offender sentence. Bennett signed a document agreeing that if he violated the conditions, he could receive the maximum sentence.

Bennett was arrested the next day for stealing an automobile and driving with a suspended license. At sentencing, the court insisted on a full evidentiary hearing, explaining that “the gravity of the offense” would impact the sentencing decision. The owner of the car testified that as a result of the theft, her husband’s cancer treatment had to be postponed. Also, the stereo and the speakers had been ripped from the car, and the underside was damaged because it had been driven across a concrete embankment to avoid a car that had been blocking it when it was parked. After considering the evidence and Bennett’s record, the court imposed a sentence of ten years.

In Williams v. State, 500 So.2d 501 (Fla.1986), the supreme court reversed a departure sentence under similar circumstances, holding that a defendant’s failure to appear for sentencing was not a clear and convincing reason to depart from the guidelines. In Quarterman v. State, however, the court pointed out that it had more recently held that a plea agreement was a valid reason to impose a departure sentence, and explained that Williams stood only for the proposition that a failure to appear in itself was not a valid departure reason. Quarterman held that a court could impose a departure sentence for the failure to appear where the release and its conditions were part of the plea agreement and where the defendant agreed to the imposition of the departure sentence if he did not appear as ordered. Neither Williams nor Quarterman are pertinent here because this case does not involve a departure sentence. Quarter-man, though, teaches that there is nothing inherently wrong with making the agreed-upon sentence contingent upon the defendant’s not committing another offense while at liberty and appearing at sentencing as ordered.

If the court determines it cannot honor the terms of the plea bargain, it has been held that if, after accepting the plea and plea agreement, the court unilaterally imposes conditions of release which are not met, the court must allow a subsequent motion to withdraw the plea if the court decides not to sentence in accord with the plea agreement. See, e.g., Pumphrey v. State, 502 So.2d 982 (Fla. 1st DCA 1987). In this case, the court did not create the conditions of release unilaterally, and the conditions were imposed before the court accepted the plea, Bennett fully concurred with the conditions and was fully aware of the risks and rewards of the liberty. Accordingly, as in Fambro v. State, 581 So.2d 199 (Fla. 4th DCA 1991), we conclude that the Pumphrey line of cases does not apply. Furthermore, although we are not convinced that a release agreement has to be “integral” to the plea agreement, see Quarterman, 527 So.2d at 1381, when a departure sentence is not involved, we think Bennett and the court entered a valid modification of the plea agreement and that the court was therefore authorized to impose the sentence it did.

AFFIRMED.

SHARP, W., and ORFINGER, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM. GRIFFIN, J.,

license: Public Domain

text:
    CRAFTMASTER OF BREVARD, INC., Petitioner, v. MEAD CONSTRUCTION, INC., etc., Respondent.
    No. 5D03-702.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.
    Allan P. Whitehead, of Frese, Nash & Hansen, P.A., Melbourne, for Petitioner.
    Michael R. Riemenschneider and William H. Cantwell, II, of O’Brien Riemen-schneider, P.A., Melbourne, for Respondent.
   PER CURIAM.

Petitioner, Craftmaster of Brevard, Inc. [“Craftmaster”], seeks review of an interlocutory order of the trial court imposing sanctions in a construction case on Craft-master based on a theory of spoliation of evidence. The sanction imposed was to bar any testimony of observations made by one of Craftmaster’s experts, or corrective work done based on the expert’s recommendations.

A writ of certiorari will not support review of the order at issue because the order, if error, is fully remediable on direct appeal.

PETITION DENIED.

PALMER and ORFINGER, JJ., concur.

GRIFFIN, J., concurs and concurs specially, with opinion.

GRIFFIN, J.,

concurring specially.

Although I agree that the order imposing sanctions is not reviewable by certiora-ri, it is a notable order- which represents an interesting lurch in the law; of spoliation that aficionados of that ever-expanding doctrine might like to be aware of.

Petitioner, Craftmaster, and Respondent, Mead, entered into a construction agreement in October 1997 for Mead’s construction of a building addition to Craft-master’s auto body repair and paint facility. The contract completion date was March 14,1998, but Mead did not complete construction until December 1998. Disputes arose between owner and contractor and Craftmaster refused to pay the contract balance because of its dissatisfaction with construction. On April 12, 1999, Mead filed suit against Craftmaster.

Craftmaster retained the Scales Company of Brevard, Inc;, a construction services firm, to do an evaluation of Mead’s contract performance. On June 21, 1999, Scales supplied Mead with its “Investigative Inspection Report”, which included, inter alia, a summary of discrepancies and estimated correction costs. The only aspect of the project that is relevant to the petition is item No. 14:

Sheet C-5 includes the required profiles for the retention area on the north side of the building. This is not constructed with the slopes detailed. The steep slopes provided are susceptible to erosion, thus undermining the foundation. This should be re-graded and resodded to meet specifications per plans.

On August 2, 1999, counsel for Mead wrote Craftmaster’s counsel a letter reporting that he had received a copy of the Scales Company report and requested permission to inspect the items referenced.

On August 25, 1999, Atlantic Testing Laboratories, Inc. sent an engineer to the project at the request of Craftmaster to ascertain the probable cause of a crack in the floor slab. Mr. Swarr, Atlantic’s engineer, described the crack as running parallel to the wall adjacent to the retention area, about two feet in at what he assumed was the “end of the turndown slab,” which “typically is where they crack if you have a settlement problem.” The crack varied in width from an eighth to a quarter inch. Atlantic’s report, dated August 26, attributed the crack to settling of the foundation caused by the excessive slope of the retention area. Atlantic recommended that the footing of the wall be underpinned along the length of the retention area. In September, Craftmaster obtained a proposal from John Schopke, Inc., [“Schopke”] a foundation repair and soil stabilization contractor to do the underpinning for $11,400.00.

Two months later, on November 2,1999, Mead made its inspection of the project. Present for Mead were: Brian Mead; Counsel for Mead; Terence Myers, the project engineer; and Lisa Lombardi, the architect. Mr. Mead testified that he did not observe the crack. There is no explanation as to why these experts did not observe the crack in the slab or make any investigation to determine whether the foundation may have been undermined, since the record is clear that a crack in the slab is the most common way to detect the undermining of a foundation. In January 2000, Craftmaster contracted with Schopke to do the work referenced in its September 1999 proposal and the work was completed the following month.

Eight months later, in October 2000, Craftmaster filed its counterclaim and third-party claim. In it, they included a claim for the underpinning. This was evidently Mead’s first notice that Craftmaster had done corrective underpinning. According to the testimony of Mead’s principal, Brian Mead, upon receipt of the counterclaim, discovery was propounded to Craftmaster. This is the first indication in the record before this court of any discovery requests directed to Craftmaster. There is no suggestion in any of the filings that Craftmaster ever failed to respond to any discovery request propounded since commencement of the suit in April 1999.

Nevertheless, Mead filed a motion for sanctions against Craftmaster claiming that by underpinning the slab and repairing the slope of the retention pond without first notifying Mead that Craftmaster intended to assert a claim for structural cracks in the slab and by not informing them in advance of the corrective work being performed in February 2000, “Mead, Lombardi and Myers [would be] unable to counter the testimony of ... any witnesses present during the work who will testify about what they saw while the work was ongoing when the area beneath the slab was visible.” Mead argued to the court that there was “no reason” why they “shouldn’t have told us.” Counsel acknowledged that the case was “very adversarial between the parties,” but Mead nevertheless urged that they were entitled to be informed of and be given access to the repair work because “the playing field has to be leveled” and because, otherwise, “basic fairness is not present.” In other words, Craftmaster could not repair the construction defect without fully informing the contractor who had failed to make the repair and giving them the opportunity to observe and document the repair.

The trial court accepted this argument and found that Mead had been “substantially impaired in defending [Craftmas-ter’s] claim because of [Craftmaster’s] intentional destruction of evidence,” i.e. making the repair, (emphasis added.) The court found that there had been no “emergency” to make the repairs and that the subsurface conditions prior to the repair could not be ascertained by a post-repair examination. The court precluded Craft-master from testifying about any observations made after removal of the slope or any of the work done by Schopke in repairing the foundation.


author: PER CURIAM.

text:
    Sonia S. COLLADO, Petitioner, v. Heriberto COLLADO, Respondent.
    No. 5D03-2042.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.
    Richard J. D’Amico, Daytona Beach, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The Petition for Writ of Prohibition seeking review of the “Order Setting Aside Recusal Order ...” is granted. As this court explained in Lea v. Wigton, 705 So.2d 723 (Fla. 5th DCA 1998):

[O]nce an order disqualifying a judge is entered, the judge is prohibited from any further participation in the case. Dream Inn, Inc. v. Hester, 691 So.2d 555, 556 (Fla. 5th DCA 1997). As a result, any order entered by a judge after that judge has been disqualified is void. Bolt v. Smith, 594 So.2d 864 (Fla. 5th DCA 1992).

Id. at 723; see also Meaweather v. State, 732 So.2d 499 (Fla. 1st DCA 1999); Deberry v. Ward, 625 So.2d 992 (Fla. 4th DCA 1993); State v. Schack, 617 So.2d 832 (Fla. 4th DCA 1993). Therefore, we find the petitioner has met the burden to establish a legally sufficient basis for disqualification.

Accordingly, we grant the petition for writ of prohibition, quash the order setting aside the recusal order, and remand this case for assignment to a different trial judge.

PETITION GRANTED; ORDER QUASHED.

SAWAYA, C.J., GRIFFIN and THOMPSON, JJ., concur.

      . An exception exists in instances where the trial court orally announces its ruling, subsequently enters an order of recusal, and thereafter performs the ministerial act of simply entering a written order or judgment reflecting its prior oral ruling. See Fischer v. Knuck, 497 So.2d 240 (Fla.1986); Velasquez v. Rueda, 777 So.2d 1185 (Fla. 5th DCA 2001). This case does not fit within this exception.


text:
    Christopher DELGADO, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0800.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his motion seeking jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record does not conclusively refute Appellant’s claim, we reverse.

Appellant made a facially sufficient claim for jail credit under rule 3.800 by providing the dates for which he is seeking credit and the date of his sentence, and alleged that the jail certificate would show that he is entitled to credit. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998). Appellant alleges that he is entitled to 821 days of jail credit for the time he spent in Dade and Jackson County jails as the result of his arrest on Washington County charges. The trial court stated that it denied Appellant’s motion after consulting with the Washington County Sheriffs Department. However, the trial court failed to attach any supporting documentation from the Washington County’s Sheriffs Department or elsewhere to support its order.

We therefore reverse the trial court’s summary denial of Appellant’s motion for jail credit and remand for the trial court to attach jail certificates or other portions of the record that conclusively refute Appellant’s claim or to grant additional credit as the record dictates.

REVERSED and REMANDED.

BOOTH, BENTON and LEWIS, JJ., concur.


text:
    Jimmy KLINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2887.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his rule 3.850 motion for postconviction relief. Appellant originally filed his motion on March 23, 2003. He subsequently filed a motion requesting leave to amend on June 8, 2003. Without addressing the motion to amend, the trial court denied Appellant’s motion on June 6, 2003. Because we find that the trial court erred in ruling on Appellant’s motion without allowing amendment, we reverse and remand.

A rule 3.850 motion may be amended at any time prior to the trial court’s ruling as long as the amended motion is filed within the two-year limitations period prescribed by rule 3.850(b). Gaskin v. State, 737 So.2d 509, 518 (Fla.1999). Similarly, when a defendant files a motion requesting leave to amend before the trial court rules and before the limitations period expires, the trial court must allow the amendment prior to ruling on the motion. Beard v. State, 827 So.2d 1021 (Fla. 2d DCA 2002). Accordingly, we reverse the trial court’s denial of Appellant’s original motion. On remand, Appellant shall be allowed to amend his original motion and the trial court should rule on the amended motion without reference to its previous order.

REVERSED and REMANDED.

BOOTH, BENTON and LEWIS, JJ., concur.


text:
    Randall SASSER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2138.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record does not conclusively refute Appellant’s claim that his sentence in case number 02-3308 exceeds the statutory maximum, we reverse.

On November 6, 2002, Appellant was convicted of violating his probation in case number 99-4483 on the crimes of burglary of an unoccupied structure and grand theft, and of felony petit theft in case number 02-3308. All of Appellant’s convictions were third-degree felonies punishable by up to 60 months’ imprisonment. §§ 810.02; 812.014; 775.082(3)(d), Fla. Stat. (1999); §§ 812.014; 775.082(3)(d), Fla. Stat. (2002). He was sentenced to concurrent terms of 70.3 months’ imprisonment, which was the lowest permissible sentence under his Criminal Punishment Code scoresheet. Appellant was sentenced as a habitual felony offender on case number 99-4438, but not on 02-3308.

Appellant filed a motion to correct his illegal sentence, alleging that his score-sheet contained an error that would reduce his lowest permissible sentence below the statutory maximum for third-degree felonies. The trial court corrected Appellant’s scoresheet, which resulted in his lowest permissible sentence being reduced to 58.05 months’ imprisonment. However, the trial court refused to reduce Appellant’s sentences of 70.3 months’ imprisonment.

Because Appellant was sentenced as a habitual felony offender, it was proper for the trial court to refuse to reduce Appellant’s sentences in case number 99-4438. § 775.084(4)(h), Fla. Stat. (1999); Payton v. State, 810 So.2d 539, 540 (Fla. 5th DCA 2002). However, the trial court erred in refusing to resentence Appellant in accordance with the corrected scoresheet in case number 02-3308. Appellant must be sentenced between his Criminal Punishment Code scoresheet lowest permissible sentence and the statutory maximum. See Butler v. State, 838 So.2d 554, 555-56 (Fla. 2003); Daniels v. State, 838 So.2d 617, 618 (Fla. 1st DCA 2003); §§ 921.002(g), 921.0024(2), Fla. Stat. (2002). As corrected, Appellant’s lowest permissible sentence of 58.05 months’ imprisonment is below the statutory maximum of 60 months for a third-degree felony. Therefore, in case number 02-3308, Appellant had to be sentenced to a sentence between 58.05 months’ imprisonment and the statutory maximum of 60 months’ imprisonment.

We therefore reverse the trial court’s summary denial and remand for the trial court to attach portions of the record that conclusively refute Appellant’s claim or to grant Appellant’s requested relief.

AFFIRMED in part; REMANDED in part; and REVERSED in part.

BOOTH, BENTON and LEWIS, JJ„ concur.


text:
    Chau Ngoc NGUYEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1880.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach portions of the record to conclusively refute the appellant’s claim that counsel was ineffective for failing to move for a judgment of acquittal where the state failed to prove that the stun gun either caused great bodily harm or constituted a deadly weapon, we reverse. We affirm all other issues raised in the appellant’s motion without discussion.

The appellant was convicted of robbery with a firearm, carrying a concealed firearm, and aggravated battery. The appellant was charged with aggravated battery for either causing great bodily harm, permanent disability, or permanent disfigurement to the victim or by using a deadly weapon, to wit: an electric stun gun. Proving great bodily harm requires proving more than slight, trivial, minor, moderate, or some harm. See C.A.C. v. State, 771 So.2d 1261, 1262 (Fla. 2d DCA 2000). The record attachments in this case show that the victim testified that it hurt when she was shot with the stun gun and that it caused her to lie down and an officer testified that he saw burn marks on the victim. However, there was no testimony that the victim required medical treatment for her burns or that she had any lasting ill effects or scars from the use of the stun gun. Thus, it appears that there was insufficient testimony as a matter of law to support a charge of aggravated battery for causing great bodily harm. See Williams v. State, 651 So.2d 1242, 1243 (Fla. 2d DCA 1995); C.A.C. v. State, 771 So.2d at 1262.

“A deadly weapon is 1) any instrument which, when it is used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm, or 2) any instrument likely to cause great bodily harm because of the way it is used during a crime.” D. C. v. State, 567 So.2d 998, 1000 (Fla. 1st DCA 1990). No cases in Florida appear to have determined whether a stun gun can constitute a deadly weapon either by its ordinary use, or by the way it was used in a crime. In the instant case, the state failed to present any testimony that a stun gun qualifies as a deadly weapon by its ordinary use and there was insufficient evidence to establish that it was a deadly weapon in the manner it was used on this victim. Thus, it appears that there was insufficient evidence as a matter of law to support a charge of aggravated battery for the use of a deadly weapon.

Because the trial court’s attachments are insufficient to refute the appellant’s claim that counsel was ineffective for failing to move for a judgment of acquittal on the basis that there was insufficient evidence to support the aggravated battery charge, we reverse the trial court’s summary denial and remand for the attachment of further record portions that conclusively refute the appellant’s claim or for an evidentiary hearing.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

BOOTH, BENTON and LEWIS, JJ., concur.


text:
    Samuel J. WEEDE, Appellant, v. Gale Faircloth WEEDE, Appellee.
    No. 1D02-4980.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2003.
    Bonnie K. Roberts, Bonifay, for Appellant.
    Appellee, pro se.
   PER CURIAM.

In this appeal from a final order of marital dissolution, we affirm all points except those relating to the trial court’s errors in equitably distributing the parties’ real property and mobile home, and in allocating the liability remaining on the wife’s automobile without allowing the husband credit for the post-separation payments he had made on the vehicle. As to these two issues we reverse, and, because our reversal may affect the lower court’s overall distribution of the marital assets between the parties, we remand with directions that the court revisit its entire equitable distribution scheme. See Young v. Young, 606 So.2d 1267 (Fla. 1st DCA 1992).

In regard to the allocation of the real property, the record discloses that the parties owned a 27.89-acre parcel valued at $33,500, and a 17.21-acre parcel, including the marital home (a mobile home), which was alternately appraised at either $59,000 or $60,615. In distributing the latter property, the court awarded the wife the mobile home, to which it assigned a value of $25,815, and 10.6 acres of the 17.21-acre tract, valued at $16,020, for a total amount of $41,835. The remaining 6.61 acres, and all of the 27.89-acre-parcel, valued together at $43,263, were ordered conveyed to the husband. The court’s distributions, however, contain mathematical errors affecting the total amounts transferred to each party, thereby requiring reversal and remand.

Regarding the 17.21-acre tract, the only evidence of its value was that of a court-ordered appraisal, which included two alternative methods of assessment: one, a sales-comparison approach, and the second, a cost approach. Using a sales comparison of similar properties, the appraiser found that the value of the property was $59,000. This means of calculation did not, however, separately assign the cost of the mobile home from that of the real property, but the appraiser did do so by the use of the cost approach. In it, the total value of the property was listed as $60,615, with the mobile home appraised at $34,800 and the land at $1,500 per acre, or $25,815. As is apparent from the recitation of the order, the court mistakenly used the latter figure as the value of the mobile home instead of the land. By applying the sales-comparison approach, one could subtract the $25,815 value of the land from the total appraised value of $59,000, and reach a value of $33,185 for the mobile home. By adding the value of the wife’s 10.6 acres, at $1,500 per acre, or $15,900, to that of the mobile home ($33,185 or $34,800), the total value of the property conveyed to the wife should be either $49,085, or $50,700, depending on the method of appraisal, rather than that ordered, $41,835. The trial court should therefore review the distribution of such property in order to achieve a just and fair equitable division.

The lower court also erred in allocating liability of $13,312 for the 1999 Crown Victoria automobile to the wife. The loan document discloses that the above sum was the balance owed on the vehicle on January 26, 2001, shortly after the parties had separated. The husband testified the wife should receive the car, and he was willing to continue making payments on it. The wife’s testimony was consistent, saying that the husband made all of the payments on the vehicle as of the date of the hearing, as well as those on the automobile’s insurance during the year following their separation, and that she understood he was willing to complete the remaining payments. Consequently, there is no record support for the trial court’s allocation of this liability to the wife.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, BOOTH and KAHN, JJ„ concur.


text:
    Eddie JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3317.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2003.
    Eddie Jones, pro se, petitioner.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Eddie Jones petitioned this court for a writ of habeas corpus, contending that the lower tribunal had lacked subject matter jurisdiction over him in a criminal proceeding because a warrant for his arrest was not supported by a proper affidavit. This court issued the following order:

This court has considered the instant petition for writ of habeas corpus, which argues that the prosecuting Assistant State Attorney did not have sworn testimony to support the issuance of an arrest warrant in case number 01-660 in the Circuit Court for Columbia County. It appears to this court that this claim, or a very similar claim, relating to the same lower tribunal proceeding, has also been raised by petitioner in the following proceedings:
1. Jones v. State, 1D02-3838. This is an appeal from denial of motion for post-conviction relief. The trial court’s order was affirmed by opinion issued May 7, 2003. Jones v. State, 848 So.2d 311 (Fla. 1st DCA 2003).
2. Jones v. State, 1D03-2239. This is an appeal from denial of motion to vacate judgment, for writ of habeas corpus, and other relief. The claims were found by the trial court to be “successive, conclusory, non-specific, and/or time-barred.” Movant/petitioner was warned that he “may be found in contempt of court and subject to loss of gain time if he continues to abuse the legal process.” The appeal is pending.
3. Jones v. Crosby, 1D03-2304. The petition for writ of habeas corpus was denied June 26, 2003. Jones v. Crosby, 849 So.2d 300 (Fla. 1st DCA 2003).
4. Jones v. State, 1D03-2963. The petition for writ of habeas corpus was denied August 12, 2003. Jones v. State, 852 So.2d 236 (Fla. 1st DCA 2003).
5. Jones v. State, 1D03-3750. The petition for writ of habeas corpus is pending.
It appears that Eddie Jones’ repetitive motions, appeals, and petitions, raising the same issue that was decided adversely to him in case number 1D02-3838, is an abuse of the legal process which has had an adverse effect on the limited judicial resources of this court.
Accordingly, Eddie Jones shall show cause within 15 days of date of this order why he should not be prohibited from appearing before this court in any proceeding which challenges his conviction and sentence in Columbia County case number 01-660, unless he is represented by a member in good standing of the Florida Bar in such proceeding. See State v. Spencer, 751 So.2d 47 (Fla.1999).

Petitioner has filed a response, an amended response, and an emergency notice/motion to clarify the issues in case number 1D03-3317. Having now considered these filings, this court finds that petitioner’s continued attacks on his conviction and sentence are an abuse of the legal process which have had, and if allowed to continue will have, an adverse effect on the limited judicial resources of this court. Accordingly, it is hereby ordered that petitioner Eddie Jones shall retain the services of a member in good standing of the Florida Bar who shall notice an appearance in this case and in case number 1D03-2239 within twenty days of date of this order, failing which the cases are subject to dismissal without further opportunity to be heard. Further, no pro se papers from Mr. Jones to initiate a new collateral attack on the conviction in Columbia County case number 01-660, regardless of the remedy sought or theory for such attack, will be accepted for filing by the clerk of this court.

IT IS SO ORDERED.

BOOTH, DAVIS and PADOVANO, JJ., concur.

      . Petitioner filed a notice of voluntary dismissal in case number 1D03-3750 after this court issued its order to show cause.


author: HAWKES, J.

text:
    Rex KARNES, Appellant, v. CITY OF BOCA RATON, Appellee.
    No. ID 02-4155.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2003.

      Mario L. Perez; Jo Ann Hofftnan, Moore, Baisden & Selwood, Nelson & Perez P.A.; Lauderdale by the Sea, for Appellant.
    Robert L. Teitler and Beth J. Leahy; Walton Lantaff Sehroeder & Carson, LLP; Miami, for Appellee.
   HAWKES, J.

Rex Karnes (Claimant) appeals the JCC’s order finding, in pertinent part, that in a non-occupational disease case, an average weekly wage (AWW) award must be determined from an employee’s wages for the thirteen weeks prior to the time of injury and is not subject to periodic adjustment. We affirm.

Claimant was involved in a compensable accident in 1989, where he sustained a nonoccupational disease injury. In 1993, a merit order was entered awarding Claimant temporary total disability benefits based on an AWW calculated from Claimant’s 1989 wages.

Although Claimant continued to work for the same employer, and continued to receive pay increases, he also continued to suffer from medical problems as a result of his injury. During several extended time periods between 1998 and 2001, he was unable to work full-time, and qualified for benefits. In September 2001, Claimant requested a recalculation of his AWW benefits.

Claimant argued he was entitled to a recalculated AWW based on his most recent 13 weeks of compensation prior to his current disability. Claimant based his argument on this court’s decision in Hillsborough County School Bd. v. Christopher, 790 So.2d 1267 (Fla. 1st DCA 2001). Claimant maintained that Christopher mandated that AWW benefits be calculated from the time of disability, not the time of the original injury. Claimant misconstrues Christopher.

It is well settled that, in non-occupational disease cases, the Workers’ Compensation Act requires wages “at the time of the injury” to be used in calculating AWW. Conversely, cases in the nature of an occupational disease, such as Christopher, hold that AWW must be calculated from the onset of an employee’s disability. Thus, the JCC properly construed the statute, and the order is AFFIRMED.

VAN NORTWICK and PADOVANO, JJ., concur.

      . See § 440.14(1), Fla. Stat. (1989); see also Waymire v. Fla. Indus. Comm’n., 174 So.2d 404 (Fla.1965); Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318 (Fla. 1st DCA 2002).

      . See Michels v. Orange County Fire/Rescue, 819 So.2d 158 (Fla. 1st DCA 2002); see also Cote v. Combustion Eng'g, Inc., 502 So.2d 500 (Fla. 1st DCA 1987); Reynolds v. Neisner Bros., Inc., 436 So.2d 1070 (Fla. 1st DCA 1983).


text:
    Liza A. PARK, Petitioner, v. Gloria E. CHAFIN, Respondent.
    No. 1D03-3747.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2003.
    Steven E. Sellers of Sellers Law Firm, P.L., Tallahassee, for petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. See Henry’s Office Supplies v. Henry, 724 So.2d 667 (Fla. 1st DCA 1999), and cases cited therein.

WOLF, C.J., and BROWNING and HAWKES, JJ., concurs.


author: LEWIS, J.

text:
    Carlos E. CHAVEZ, Petitioner, v. J & L DRYWALL & TRAVELERS INSURANCE CO., Respondents.
    No. 1D03-2471.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2003.

      Mark L. Zientz, of the Law Offices of Mark L. Zientz, P.A., Miami, for Petitioner.
    H. George Kagan, of Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, for Respondents.
   LEWIS, J.

Petitioner, Carlos E. Chavez, petitions this Court for a writ of certiorari to review an order of the Judge of Compensation Claims (“JCC”), which granted respondents’, J & L Drywall and Travelers Insurance Company, motion to compel the attendance of their attorney at petitioner’s independent medical examination (“IME”). Concluding that the JCC’s ruling is a departure from the essential requirements of law, we grant petitioner’s petition and quash the JCC’s order.

After petitioner filed a petition for workers’ compensation benefits, respondents scheduled an IME with Dr. Fishbain, a psychiatrist, for June 11, 2003. Petitioner sought his counsel’s presence at the IME without objection from either respondents or Dr. Fishbain. Respondents then filed a motion to compel with the JCC, alleging that petitioner’s counsel planned to attend the IME with petitioner without their objection. Respondents requested “the opportunity to attend the [IME] to ensure that claimant’s counsel does not disrupt the examination or question Dr. Fishbain improperly.” After conducting a hearing, the JCC, over petitioner’s objection, granted respondents’ motion without setting forth the basis for such in her order. Petitioner then filed his petition for writ of certiorari with this Court. We subsequently issued a show cause order as to why the petition should not be granted, to which respondents filed a response.

It is well-established that, in order to establish an entitlement to certiora-ri relief, a petitioner must demonstrate that the order under review departs from the essential requirements of law and that the order will cause irreparable harm that cannot be remedied on plenary appeal. City of Jacksonville v. Rodriguez, 851 So.2d 280, 281 (Fla. 1st DCA 2003) (citations omitted). Here, petitioner has established the required element of irreparable harm because the presence of respondents’ attorney at petitioner’s IME could not be undone on appeal. See Taylor v. Columbia/HCA Doctors Hosp., 746 So.2d 1244, 1245 (Fla. 1st DCA 1999) (holding that with respect to physical or psychiatric examinations “the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal” and denying the petition because the petitioner had already undergone the required IME). Petitioner has also demonstrated that the JCC’s order departs from the essential requirements of law as set forth herein.

A physician performing an IME in workers’ compensation cases is essentially an expert witness for the party requesting the examination. See Adelman Steel Corp. v. Winter, 610 So.2d 494, 505 (Fla. 1st DCA 1992), superceded by statute on other grounds as recognized in Reed v. Reed, 643 So.2d 1180, 1182 (Fla. 1st DCA 1994). “When resort to an IME is necessary by either party, the parties’ relationship is clearly adversarial....” Id. In McClennan v. American Building Maintenance, 648 So.2d 1214, 1214 (Fla. 1st DCA 1995), this Court applied the following reasoning to its analysis of whether the JCC erred in precluding the claimant’s attorney from attending the claimant’s IME:

Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked and a lay person should not be expected to evaluate the propriety of every question at his peril. The plaintiff, therefore, should be permitted to have the assistance and protection of an attorney during an examination....
It is argued that an attorney, by making groundless objections, may hinder an examination thereby depriving the defendant of the benefit of an informed medical opinion. The plaintiff, however, should not be left unprotected on the assumption that an attorney will unduly interfere with the examination. Should this interference occur appropriate steps may be taken by the court to provide the doctor with a reasonable opportunity to complete his investigation of the nature and extent of any injuries the plaintiff may have sustained.
... The possible adversary status of the examining doctor for the defense is, under ordinary circumstances, a compelling reason to permit plaintiffs counsel to be present to guarantee, for example, that the doctor does not interrogate the plaintiff on liability questions in order to seek damaging admissions.

(quoting Toucet v. Big Bend Moving and Storage, Inc., 581 So.2d 952, 953-54 (Fla. 1st DCA 1991); Bartell v. McCarrick, 498 So.2d 1378, 1380 (Fla. 4th DCA 1986)). In Gibson v. Gibson, 456 So.2d 1320, 1321 (Fla. 4th DCA 1984), the Fourth District, in finding that no basis existed for refusing the petitioner’s request to have a court reporter attend her medical examination held that “it is the privacy of the petitioner that is involved, not that of the examiner, and if the petitioner wants to be certain that this compelled, although admittedly reasonable, intrusion into her privacy be accurately preserved, then she should be so entitled.” See also Lunceford v. Fla. Cent R.R. Co., 728 So.2d 1239, 1241 (Fla. 5th DCA 1999).

When addressing an examinee’s request to have a third party attend a medical examination, the burden of proof to establish why the request should be denied lies with the party opposing the party’s attendance. Collins v. Skinner, 576 So.2d 1377, 1377 (Fla. 2d DCA 1991) (citations omitted). The examinee’s request should be upheld absent a valid reason for a denial. Id. (citation omitted). For instance, in McClennan, this Court reversed the JCC’s order prohibiting the claimant’s attorney from attending the claimant’s IME. 648 So.2d at 1214. In doing so, this Court held that the claimant’s attorney could observe the examination, monitor any discussions between the physician and the claimant, and advise the claimant when necessary and proper. Id. at 1215. This Court also determined that there was no basis to conclude that the claimant’s attorney would be unduly distracting or disruptive during the examination. Id.; see also Toucet, 581 So.2d at 954 (holding that there was no basis in the record for concluding that the petitioner’s attorney would be disruptive of the examination, notwithstanding the respondent’s reasoning that the petitioner’s attorney would destroy the give and take that would exist in a normal examination and that the attorney telling the doctor what he could and could not say would destroy the rapport between the petitioner and the doctor). Even a physician must provide a case-specific justification in an affidavit to support a claim that the presence of a court reporter requested by the examinee or an examinee’s attorney at the examination will be disruptive. See Broyles v. Reilly, 695 So.2d 832, 834 (Fla. 2d DCA 1997).

In the instant case, respondents’ stated reason for seeking to have their attorney attend petitioner’s IME was “to ensure that [petitioner’s] counsel does not disrupt the examination or question Dr. Fishbain improperly.” In their motion, respondents failed to set forth any factual basis in support of their general assertion, i.e., that petitioner’s counsel was likely to disrupt the IME based upon a history of doing so or the like. See Fla. R. Work. Comp. P. 4.065(b)(1), (2) (prescribing that a motion to compel, a procedural motion, “shall set forth in detail the facts giving rise to the motion, its legal basis, and the specific relief sought”). Furthermore, neither the JCC’s order nor respondents’ response filed with this Court indicate that respondents had any basis or reason to believe that petitioner’s counsel was likely to disrupt the IME or question Dr. Fish-bain improperly. We note that this, in fact, may have been the reason why respondents chose not to object to petitioner’s request to have his counsel present at the IME, as such a reason, without a basis to support the assertion, could not have served as a ground to deny petitioner’s request. See McClennan, 648 So.2d at 1215; Toucet, 581 So.2d at 954. If an unsupported assertion that an examinee’s counsel will be distracting or disruptive during an examination cannot support the denial of the examinee’s request to have his or her counsel present at the examination, then the same unsupported assertion cannot constitute a ground for permitting an E/C’s counsel to attend a claimant’s medical examination against that claimant’s wishes. We find that the policy reasons behind permitting a claimant’s attorney to attend such an examination, i.e., assistance and protection, do not support an E/C’s counsel’s attendance at an IME based upon a mere allegation that his or her presence is necessary to ensure against disruption.

As the Fourth District has held, “it is the privacy of the [examinee] that is involved, not that of the examiner....” Gibson, 456 So.2d at 1321 (emphasis added). Furthermore, as this Court has concluded, an examinee “should not be left unprotected on the assumption that an attorney will unduly interfere with the examination.” McClennan, 648 So.2d at 1215 (emphasis added). Similarly, an E/C’s counsel may not attend a claimant’s IME over the claimant’s objection based upon a speculative assertion that the claimant’s counsel may disrupt the examination or question the examining physician improperly. As we have previously set forth, should any interference occur, the JCC may take appropriate steps to provide the physician with a reasonable opportunity to complete the examination, such as barring the claimant’s attorney from attending the IME. See McClennan, 648 So.2d at 1215. Likewise, the JCC may also bar a claimant’s attorney from attending an IME if an E/C makes a showing that a claimant’s attorney will disrupt the examination. Accordingly, we grant the petition for writ of certiorari and quash the JCC’s order.

GRANTED.

WOLF, C.J. and POLSTON, J., Concur.

      . We have jurisdiction. See Fla. R.App. P. 9.030(b)(2)(A).


text:
    Jack K. PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0986.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2003.

      Kirk R. Owens, Pensacola, for Appellant.
    Charlie Crist, Attorney General, Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of the appellant’s first three claims without comment; however, because the trial court improperly reclassified the appellant’s conviction for aggravated battery to a first-degree felony on the appellant’s guidelines scoresheet, we reverse.

The appellant alleges that the trial court scored an aggravated battery conviction as a first-degree felony when it should have been scored as a second-degree felony. Section 784.045, Florida Statutes (1991), states in pertinent part:

(1)(a) A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.
(2)Whoever commits aggravated battery shall be guilty of a felony of the second degree ...

Although aggravated battery is generally a second-degree felony, the trial court concluded that the appellant’s conviction was properly reclassified to a first-degree felony pursuant to section 775.087(1), Florida Statutes, based on the appellant’s use of a deadly weapon. However, reclassification is not proper where the use of a weapon is an essential element of the offense. See Lareau v. State, 573 So.2d 813 (Fla.1991); Cargle v. State, 829 So.2d 366 (Fla. 1st DCA 2002); § 775.087(1), Fla. Stat. (1991). Furthermore, where it is unclear whether the defendant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, enhancement is not permitted. See Montgomery v. State, 704 So.2d 548, 550-51 (Fla. 1st DCA 1997).

Here, the appellant was charged with two counts of aggravated battery under two separate charging documents. The information filed in case number 91-5948 charges the appellant with “agg. batt. w/ weapon” and alleges that in the course of committing battery the appellant used a deadly weapon in violation of section 784.045(l)(a)2, Florida Statutes. It is clear that enhancement is precluded because the information alleges the use of a weapon and the statutory provision cited refers to aggravated battery based on the use of a deadly weapon. Indeed, the state concedes that the language of the information precludes enhancement pursuant to section 775.087(1), Florida Statutes.

The information filed in case number 92-30, however, is not so clear as it charges the appellant with “aggravated battery GBH/weapon” and alleges that in the course of committing the offense, the appellant caused great bodily harm and used a deadly weapon in violation of sections 784.046(l)(a) and 775.087(1), Florida Statutes. Unlike the first information, the second information cites the statute relating to aggravated battery, but the cite is not specific so as to express whether the offense is based on great bodily harm or the use of a deadly weapon. The state contends that enhancement is proper because the language of the information does not make the use of a deadly weapon an essential element. However, because the record does not establish that the appellant was convicted of aggravated battery based solely on great bodily harm, enhancement is again not permitted. See Montgomery, 704 So.2d at 550-51.

Due to the trial court’s error in reclassifying the appellant’s conviction, the appellant was improperly assessed eleven additional points for the two aggravated battery offenses. See Fla. R.Crim. P. 3.988(e). Not only will correction of the appellant’s guidelines scoresheet reduce his sentencing range by one cell, see Fla. R.Crim. P. 3.988(e), but it will also place his current fifteen-year sentence beyond the permitted sentencing range of five- and-a-half to twelve years. Therefore, the appellant is entitled to reversal on this claim. See Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001); Vitanzo v. State, 750 So.2d 662, 663 (Fla. 1st DCA 1999); see also Desue v. State, 605 So.2d 933, 935 (Fla. 1st DCA 1992).

Accordingly, we affirm the trial court’s order in regards to the appellant’s first three claims, but reverse the trial court’s denial of the appellant’s fourth claim, and remand for resentencing.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

BOOTH, BENTON and LEWIS, JJ., Concur.


text:
    Brian S. HOPKINS, Appellant, v. Saundra Lea SCOFIELD, Appellee.
    No. 1D03-2178.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2003.
    Appellant Brian S. Hopkins, pro se, Jacksonville.
    Garrett N. Barket, Jacksonville, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Klette v. Klette, 785 So.2d 562 (Fla. 1st DCA 2001) (“Appellant’s failure to provide either a transcript or a proper substitute, such as a stipulated statement of facts, defeats the appellate court’s ability to review either the factual or legal basis for the trial court’s decision”); see also Lewis v. Lewis, 807 So.2d 777 (Fla. 1st DCA 2002); Green v. Green, 788 So.2d 1083 (Fla. 1st DCA 2001).

KAHN, WEBSTER and VAN NORTWICK, JJ„ concur.


text:
    Sharon Hensley NEWMAN, Appellant, v. Nathan Paul NEWMAN, Appellee.
    No. 1D03-4134.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2003.
    Appellant, pro se.
    William Bruce Muench, Jacksonville, and Barry L. Zisser of Zisser, Robison, Brown, Nowlis & Maciejewski, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to the Court’s order of October 9, 2003, we dismiss this appeal as premature. The order on appeal, which purported to be a final order of dissolution of marriage, reserved jurisdiction to determine a factual dispute regarding certain bank and investment accounts. Therefore, the order is not final. See Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002). Klein v. Klein, 551 So.2d 1235 (Fla. 3d DCA 1989).

Although the reservation of jurisdiction is conditioned on the introduction of documentary evidence, which apparently was never introduced, and the order made a conditional finding that the funds had been consumed in the marriage, the order is nonetheless nonfinal because it does not conclusively end the judicial labor in the case. Klein, 551 So.2d at 1235. Even assuming that the reservation of jurisdiction could be extinguished by the parties’ failure to present documentary evidence, and therefore nothing remained for the court to determine, the instant order would not subsequently become final. See Scott ex rel. Scott v. Women’s Med. Group, P.A, 837 So.2d 577 (Fla. 1st DCA 2003). See also Ponton v. Gross, 576 So.2d 910 (Fla. 1st DCA 1991) (holding that the order, which stated that the court would dismiss the action if the amended complaint were not filed within the time allowed, was not a final order); United Water Fla., Inc. v. Fla. Pub. Serv. Comm’n, 728 So.2d 1250 (Fla. 1st DCA 1999) (holding that the order, which purported to become final on a certain future date in the absence of a petition for a formal hearing, was not a final order).

ERVIN, BOOTH and KAHN, JJ., Concur.


text:
    Alfredo WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3357.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

Because the evidence does not support the conclusion that, as alleged, the appellant deliberately falsified statements in his post-conviction motions, the order adjudicating him in contempt for doing so is reversed with directions to dismiss the contempt proceeding. See Brown v. State, 579 So.2d 898 (Fla. 4th DCA1991).


author: WELLS, Judge.

text:
    Charles Louis JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3084.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, (Ft.Lauderdale), Assistant Attorney General, for appellee.
    Before COPE, LEVY, and WELLS, JJ.
   WELLS, Judge.

Charles Louis Johnson appeals his convictions for armed burglary with an assault, sexual battery, and attempted sexual battery. Johnson maintains that the prosecutor’s comments during closing argument improperly bolstered the testimony of testifying officers, and that the jury instruction on burglary was incorrect as given, mandating reversal. We reject both claims and affirm the order under review.

On November 15, 2000, an assailant entered the victim’s home through an unlocked window. Taking a knife from the kitchen, the assailant entered the victim’s bedroom and attempted to rape her. The victim struggled with her assailant, biting him on the finger and breaking the knife. The attack lasted about 10 to 20 minutes before the assailant ran away.

The police subsequently found Johnson’s fingerprints on a window which appeared to be the point of entry. His DNA (as well as the victim’s blood) was found on a shirt left by the assailant in the victim’s bedroom. Johnson was arrested and questioned by two detectives following waiver of his rights.

Johnson initially denied any involvement, claiming that he was at home with his father on the evening in question, that he had never been inside the victim’s home, and that he had no idea how his fingerprints got on the window of the victim’s home. He thereafter provided several even more incriminating versions of what had occurred. In his second version, he claimed that he went to the victim’s home with a friend named Jonathan and opened the window, but ran away after some dogs started barking. According to Johnson, only Jonathan went into the victim’s home.

Next, he admitted to entering the victim’s home through the window (this time with someone named Keith), to taking a knife from the kitchen, to removing the victim’s bed covers, and to struggling with the victim over the knife. In a written statement to this effect, Johnson claimed that after the struggle, he fled the house, leaving Keith alone with the victim. While not admitting to sexually assaulting the victim in this statement, he admitted to one of the officers that after struggling with the victim, he might have engaged in some sexual activity with the victim.

One of Johnson’s defenses at trial was that his second statement to the police that he had only opened the window for his friend but never entered the home was the only true account of the events and that the police had coerced him into making the later, more incriminating statements. Defense counsel cross-examined the detectives who took Johnson’s statements as to their interrogation methods and expressly asked whether “this child was really just telling you what you are telling him”? During closing arguments, defense counsel challenged the detectives’ credibility, claiming that they had coerced Johnson’s incriminating statements “work[ing] him over psychologically,” putting words in his mouth. In response, the prosecutor argued that the officers had no reason to lie about the circumstances surrounding the making of Johnson’s statements in part because they contained so many exculpatory statements, denials and sympathetic excuses for Johnson’s behavior, that logically they could not have been planted by the officers in Johnson’s mouth:

Finally, you have [the defendant’s] statements.
Now, does [defense counsel] explain away the statements? Well, on the one hand, he is telling you that these detectives badgered and psychologically wore down the defendant. All right. Well, all right.
Let’s say hypothetically that was true. Wouldn’t the stories be better if they are putting words in his mouth? Wouldn’t the words be much better like why would they put in their excuse number one, excuse number two, a guy name Jonathan [sic].
“I didn’t go in. Have sympathy for me because my mom died. Have sympathy, I didn’t mean to do it. I’m sorry for what I did to that lady.”
Why did they put that in there. If these two officers, one of whom is retired, living in retirement land as we speak, who was not being made to testify here, not on the job anymore, has nothing to prove to anybody, why are they going to come in here, perjure themselves under oath, after she supposedly badgered this defendant, put it in their report, these stories where he told them where he minimizes what he did, where he makes excuses for what he did, where he apologizes for what he did, does that sound like the words of a detective or does that sound like the words of a 15 year old who went into a house, beat up a woman, tried to rape her and now he is confronted with the evidence against him and he is trying to make excuses for himself?
‘Well, yeah, you got me on the fingerprints, but I didn’t really go in the house. I just took down the screen. It was Jonathan that went in.
“Well, you got me on the shirt. You have — my DNA was found on there. I went into the room, but I didn’t have the shirt. It was another guy. His name was Keith and, oh, yeah, the knife, yeah, I picked up the knife in the kitchen, but I didn’t do anything with it. I just got into an argument with the woman. I never really hit her or anything. I was just protecting myself because she attacked me.”
Ask yourselves is that something that two detectives got together, made up, put words in his mouth and then detailed it all and repeated it all for you after two years and got all these details and put in their sympathetic details about like how he is sorry for what he did?
I submit to you that is not what it is. It is what it is....

Notably, this argument was met by no objection from Johnson who now claims that this argument constituted improper bolstering so fundamentally erroneous in nature as to mandate reversal. We believe not.

As a general rule, a prosecutor “may argue any reasons, if supported by the evidence, why a given witness might or might not be biased in a case, but the prosecutor may not properly argue that a police officer must be believed simply because he is a police officer.” Williams v. State, 747 So.2d 474, 475 (Fla. 5th DCA 1999). However, here, neither the prosecutor’s observation that the retired officers had nothing to prove, nor the comment that if the detectives had wanted to make up a story, the stories would have been better, amounted to an argument that the jury had to take the officer’s testimony or the statements made by Johnson to them as true because they were made or taken by policemen and policemen don’t lie. Rather, the prosecutor’s comments simply pointed out that, given the facts at hand, it was unlikely either that the officers’ testimony concerning the recitation of events-surrounding Johnson’s admissions were untrue or that Johnson had been coerced as the defense suggested. Accordingly, we reject this claim as a basis for reversal.

Johnson’s second claim of reversible error also rests on a point not objected to below. Johnson was charged with armed burglary with an assault or battery under former section 810.02, Florida Statutes (2000). That section defined burglary as “entering or remaining in a dwelling ... with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” Id. (emphasis added). Under this provision, “there were two ways to commit a burglary: (1) the perpetrator enters the premises without permission with an intent to commit an offense, or (2) after a consensual entry into the premises, the perpetrator remains in the building with an intent to commit an offense.” Tinker v. State, 784 So.2d 1198, 1199 (Fla. 2d DCA 2001). The “remaining in” portion of the definition for burglary only applies to the second way of committing burglary. Here, there was no evidence that the victim ever consented to the defendant’s entry into her dwelling. Thus, there is no issue here as to the second type of burglary. Nevertheless, the instruction given included the “remaining in” language.

The State concedes that the trial court erred in including this language. However, the question remains whether the error is fundamental and mandates reversal. In this case, it is not and does not.

Whether fundamental error has occurred when the “remaining in” language has been included in a burglary instruction turns on the facts of each case. See Johnekins v. State, 823 So.2d 253, 257 (Fla. 3d DCA 2002), review denied, 845 So.2d 890 (Fla.2003); Couzo v. State, 830 So.2d 177, 180 (Fla. 4th DCA 2002); Miller v. State, 828 So.2d 445, 447 (Fla. 4th DCA 2002). The State’s theory of prosecution in this case was that Johnson broke into the victim’s home with the intent to comr mit crimes. The State did not prosecute this case on the theory, that Johnson entered with consent and then remained with the intent to commit a crime. We see no scenario under which Johnson could enter someone’s home uninvited through a window, secure a weapon, and accost a woman sleeping there with no criminal design. See § 810.07, Fla. Stat. (2000) (defining prima facie evidence of intent to commit a crime in a trial on a charge of burglary as “proof of the entering of [a] structure or conveyance at any time stealthily and without consent of the owner or occupant thereof’); § 810.07, Fla. Stat. (2003) (same). As we confirmed in Johnekins, 823 So.2d at 256-57, giving an instruction on a matter which is not in material dispute, such as an instruction on “remaining in” a dwelling where the sole theory of the prosecution and the evidence is that the entry was not consensual, “is properly viewed as mere surplusage and certainly not a matter of fundamental error.” See also Collins v. State, 889 So.2d 862, 864 (Fla. 4th DCA 2003)(finding that “the defendant was not prejudiced by the inclusion of the ‘remaining in’ language of the instruction because the evidence at trial pointed clearly to the ‘breaking and entering’ method of committing the crime of burglary”); Diaz v. State, 837 So.2d 436, 436 (Fla. 3d DCA 2002)(concluding that in a case involving non-consensual entry, “the ‘remaining in’ language may be viewed as mere surplusage”). Inclusion of the “remaining in” part of the standard burglary jury instruction in this case was mere sur-plusage and not fundamental error.

Accordingly, the order under review is affirmed.

      . The trial court instructed:
      Before you can find the defendant guilty of burglary, the State must prove the following beyond a reasonable doubt.
      First, the defendant entered into or remained in a structure owned by or in the possession of [the victim]
      Second, the defendant did not have the permission or consent of [the victim], or anyone authorized to act for her to enter or remain in the structure at the time.
      Third, at the time of entering or remaining in the structure, the defendant had a fully-formed conscious intent to commit the offense of sexual battery in that structure.
      * * *
      Even though an unlawful entering or remaining in a structure is proven, if the evidence does not establish that it was done with the intent to commit sexual battery, the defendant must be found not guilty. (Emphasis added).

      . Johnson argues that reversal is required by Floyd v. State, 850 So.2d 383 (Fla.2002). We disagree and distinguish this case for the reasons well stated by the Fourth District in Couzo, 830 So.2d at 180-81, and Miller, 828 So.2d at 448.


author: SCHWARTZ, Chief Judge.

text:
    O.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1449.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Bennett H. Brummer, Public Defender and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Richard L. Polin, Assistant Attorney General and Rebecca M. Plasencia, Certified Legal Intern, for appellee.
    Before SCHWARTZ, C.J., GREEN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

The adjudication below of delinquency for grand theft of a dirt bike is reduced to petit theft because the evidence was insufficient to establish that the value of the bike at the time of the theft was more than the $300 statutory amount. See § 812.014(2)(c)l, Fla. Stat. (2003). Specifically, evidence simply that the bike had been purchased seven months before for $3000, without any expert or other testimony concerning the extent of the dimin-ishment in value caused by both its use and the fact that, as the evidence showed, significant damage was sustained by the bike during that period, was legally insufficient. See Negron v. State, 306 So.2d 104 (Fla.1974). A conviction on the more serious charge cannot be based, as it apparently was here, upon what must be the purely speculative conclusion that the bike “could not” have depreciated or its value diminished that much. See J.O. v. State, 552 So.2d 1167 (Fla. 3d DCA 1989).

Affirmed as modified.


text:
    STATE of Louisiana v. Roberto SELVA.
    No. 2003-KP-1894.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
    Rehearing Denied Nov. 14, 2003.
   PER CURIAM.

Granted. The court of appeal’s order is vacated, and the district court’s judgments dismissing relator’s original application for post-conviction relief on the merits without an evidentiary hearing, and his supplemental and amending petition, requesting an evidentiary hearing on a new claim, as premature, are reinstated. Because a defendant may enter a voluntary guilty plea while maintaining his actual innocence, the victim’s recantation of her initial accusation, over two years after relator entered his guilty plea, does not provide grounds for setting aside relator’s otherwise knowing and intelligent decision to forego trial and to enter a guilty plea “in his best interest.” See North Carolina v. Alford, 400 U.S. 25, 27, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970). Relator’s supplemental claim, first made after the court denied post-conviction relief, is in the nature of a successive application raising a new claim omitted from his original application. The court of appeal therefore erred in ordering the court to conduct a hearing on the claim before the state has lodged its procedural objections and before the court has ruled on those objections or considered whether “the factual and legal issues” raised in the claim may be disposed of summarily “without further proceedings.” La.C.Cr.P. art. 929.


author: PER CURIAM. VICTORY, J.,

text:
    STATE of Louisiana v. Deborah FOSTER.
    No. 2002-OK-2918.
    Supreme Court of Louisiana.
    Oct. 3, 2003.
    Richard P. Ieyoub, Attorney General, Richard J. Ward, Jr., District Attorney, Martin K. Maley and Ali Zito Shields, Asst. District Attorneys, Counsel for Applicant.
    Thomas J. Thompson, Counsel for Respondent.
    Ellis Paul Adams, Jr., Robert S. Glass, New Orleans, Counsel for amicus curiae.
   PER CURIAM.

We granted this writ application to review the issue of whether the trial court had authority to order the recordation of the testimony before the grand jury in the State’s case against Deborah Foster. Our review of the record shows the defendant pleaded guilty on August 12, 2002, to an offense charged by bill of information. Defendant was sentenced that same day. Therefore that issue has now been rendered moot.

Defense counsel attempts to raise the broader issue of whether the trial court’s order that “the testimony of the witnesses [is to be] recorded in all the grand jury proceedings from this day forward in this parish” is a valid order. This order, however questionable, is not properly before us. The motion for this ruling was raised improperly in the State’s case against Deborah Foster. This issue was neither raised nor urged before the appellate court. There was only a casual mention of this order in defendant’s brief with this court. It would be improper for this court to issue what would amount to an advisory opinion in this context regarding an issue that is not properly before us.

Accordingly, we recall the writ as improvidently granted and deny the application as moot.

VICTORY, J., dissents and assigns reasons.

WEIMER, J., dissents on the issue of mootness for the reasons assigned by VICTORY, J.

VICTORY, J.,

dissenting.

I dissent from the recall of the writ and the writ denial. In my view, the trial court’s verbal order regarding the recordation of grand jury testimony in all cases is before us and is not moot. The United States Supreme Court has recognized certain exceptions to the mootness doctrine which this Court has always considered when resolving issues of justiciability. Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186. One of these exceptions exists if and when there is a significant issue that is “capable of repetition yet evading review.” Richmond Newspapers, Inc. v. Virginia 448 U.S. 555, 567-569, 100 S.Ct. 2814, 2822-23, 65 L.Ed.2d 973 (1980). Although the defendant in this case pled guilty, thus ending the controversy in her case, the discretion that a trial judge has in ordering grand jury proceedings to be recorded is an issue that may consistently evade our review. Thus, it is clear that the action of the trial court should not be ignored on the basis of mootness, but rather should be resolved, as this issue is now properly before us. In my view the Trial Court does not have the discretion to order the recordation of testimony before the grand jury in any case, much less in all cases, absent a showing that such recordation is necessary under the circumstances presented.


text:
    Octavia RILEY, v. Coleen SALLEY and State Farm Mutual Automobile Ins Co.
    Nos. 2003-CC-1885, 2003-CC-2304.
    Supreme Court of Louisiana.
    Oct. 31, 2003.
   PER CURIAM.

Granted. Under the unique circumstances of this case, the court of appeal erred in converting relator’s premature appeal to an application for supervisory writs. Accordingly, the judgment of the court of appeal granting the writ but denying relief is vacated and set aside. The premature appeal is dismissed without prejudice, reserving relator’s right to refile its appeal after the trial court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. La.Code Civ. P. art. 2087(D).


author: I,CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Patrick Wayne TERRELL, Appellant.
    No. 37,762-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 18, 2003.

      James E. Beal, Louisiana Appellate Project, for Appellant.
    Patrick Wayne Terrell, Pro Se.
    Paul J. Carmouche, District Attorney, EDward M. Brossette, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   I,CARAWAY, J.

A jury found defendant, Patrick Wayne Terrell, guilty as charged on one count of possession of cocaine, in violation of La. R.S. 40:967 C. Terrell was adjudicated a fourth felony offender and given the mandatory sentence of life imprisonment at hard labor without benefits. After the trial court denied Terrell’s motion to reconsider the sentence, the defendant appealed his sentence. He complains that the term is disproportionate to the severity of the offense and excessive due to his disabilities and the non-violent nature of his prior offenses. Additionally, he asserts that the trial court did not use the correct Habitual Offender Law which was amended after the commission of the crime. Since we find that the trial court could consider the legislative change in policy brought about by the 2001 amendment to the Habitual Offender Law, we vacate the sentence and remand for resentencing.

Facts

On October 1, 1999, members of the Caddo Parish Sheriffs Office Organized Crime Division executed a search warrant on a Shreveport residence upon information that from that location Terrell had made several sales of cocaine to an informant. Upon entering the house, police encountered and detained two males who indicated that they were visiting Terrell. Terrell fled the scene but was apprehended by police officers. While executing the search, officers found crack cocaine on the kitchen table near the door where Terrell exited and on the path he took as he ran away. In the kitchen police observed a plate containing what appeared to be L,cocaine residue. Police later identified Terrell’s fingerprints on the plate. A set of scales with cocaine residue, several packaged rocks of crack cocaine, packages of plastic bags and other paraphernalia were found in the residence. The total amount of cocaine was not presented in evidence; however, the evidence transfer receipt in the record indicates that the total quantity was 5.5 grams. Police also found mail addressed to Terrell in the home. Terrell provided the subject residence as his address to the Caddo Parish Sheriffs Office bonding office.

A unanimous jury found defendant guilty as charged. Thereafter, Terrell was adjudicated a fourth felony offender based upon prior convictions for distribution of marijuana in May of 1989 and possessions of cocaine in 1994 and 1996. The court imposed the mandatory life sentence despite Terrell’s contention that the life sentence as applied to him was unconstitutionally excessive.

Terrell sought reconsideration of the sentence on the grounds that he was the exceptional defendant for which downward departure from the mandatory sentencing provisions was warranted. Terrell cited the legislative change to the Habitual Offender Law by Act 408 of 2001. At the hearing on the motion to reconsider the sentence, the trial court considered Terrell’s arguments that his physical limitations, including partial paralysis and AIDS, and non-violent criminal history, mandated downward departure from the mandatory life sentence of La. R.S. 15:529.1. Ultimately, however, the court rejected Terrell’s claims recommending that he seek |3relief from the sentencing review panel which was established as a part of the legislation of 2001. La. R.S. 15:574.22.

On appeal, Terrell’s counsel reiterates the claim that the life sentence imposed is constitutionally excessive due to the trial court’s failure to give sufficient consideration to the above-noted mitigating factors. In a pro se brief, Terrell adds that the sentence is illegal because the trial court applied the wrong habitual offender law to his case and that the trial court erroneously believed that it could not deviate from the statutory mandatory minimum sentence.

Discussion

At the time of the present offense in 1999, the Habitual Offender Law, La. R.S. 15:529.1(A)(1)(c)(ii), imposed a mandatory life sentence for a fourth felony offender when “the fourth or subsequent felony or any of the prior felonies” amounted to “a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for more than five years.” Because at the time of Terrell’s 1989 conviction, distribution of marijuana carried a maximum sentence of more than five years, the applicable provisions of the Habitual Offender Law at the time of the offense in 1999 mandated a life sentence for Terrell.

Terrell notes that his three other drug convictions were for possession charges which did not carry a maximum sentence of more than five years. Under the posfi-2001 Habitual Offender Law, “the fourth felony and two of the prior felonies” would be required to be “violation[s] of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for ten hyears or more” in order for the enhanced sentence of life imprisonment to apply. La. R.S. 15:529.1(A)(1) (c) (ii) following amendment by Act 408 of 2001. Likewise, none of his four drug felonies, under either version of the Habitual Offender Law, were crimes of violence which also serve to enhance the punishment to life imprisonment for four time offenders.

We initially reject Terrell’s argument regarding the direct application of the new Habitual Offender Law to his sentencing. Indeed, Act 403 of 2001 amended the provisions of La. R.S. 15:529.1. Nevertheless the effective date of that amendment was June 15, 2001 and Section 6 of the Act provided that it was to have prospective effect only. The changes mandated by Act 403, including the changes to La. R.S. 15:529.1, do not apply to sentences imposed for crimes committed before the acts’s effective date. State v. Barnes, 02-2059 (La.4/4/03), 845 So.2d 354; State v. Surry, 37,448 (La.App.2d Cir.9/24/03), 855 So.2d 893. Because Terrell committed the present offense prior to the effective date of the amendments to La. R.S. 15:529.1, the enhancement statute to be applied is the one in effect at the time of the commission of the offense for which the sentence is being enhanced. State v. Barnes, supra; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied 02-2875 (La.4/4/03), 840 So.2d 1213. Thus, the court correctly applied the statute in effect in 1999 at the time of the commission of the offense, for which Terrell’s sentence is being enhanced.

Terrell’s argument that the 1999 version of the Habitual Offender Law imposes unconstitutionally excessive punishment requires review of |fithe decisions of the Louisiana Supreme Court on that subject. In State v. Dorthey, 623 So.2d 1276 (La.1993), while finding that the Habitual Offender Law did not violate Louisiana’s constitutional separation of powers provision, the court stated:

If ... the trial judge were to find that the punishment mandated by R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime”, he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive.

Id. at 1280-1281.

Following the Dorthey ruling, the court later found the need “to curtail the district court’s use of Dorthey in cases in which it appeared that the courts were simply substituting their judgment of what constituted an appropriate penalty for that of the legislature,” as seen by its rulings in State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672 and State v. Lindsey, 99-3302, 99-3256 (La.10/17/00), 770 So.2d 339, 343, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). Johnson emphasized that the sentences imposed upon recidivists by the Habitual Offender Law are presumed to be constitutional. Lindsey reviewed the development of the law and the tests for constitutional excessiveness as follows:

This effort culminated in Johnson, where we set out guidelines for when and under what circumstances courts should exercise their discretion under Dorthey to declare excessive a minimum sentence mandated by the Habitual Offender Law. We held that “[a] court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut [the] presumption of constitutionality” and emphasized that “departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” State v. 6Johnson, supra at 676, 677. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.
Id. (Citing State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 529 (Plotkin, J., concurring)).
In making this determination, we held that “while a defendant’s record of nonviolent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.” Id. This is because the defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses. Id.
In addition, we held that the trial judge must keep in mind the goals of the statute, which are to deter and punish recidivism, and, we instructed that the sentencing court’s role is not to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders, but rather to determine whether the particular defendant before it has proven that the minimum sentence is so excessive in his case that it violates Louisiana’s constitution. Id. at 677.
Finally, we held that if a trial judge finds clear and convincing evidence which justifies a downward departure, he is not free to sentence the defendant to whatever sentence he feels is appropriate under the circumstances, but must instead sentence the defendant to the longest sentence which is not constitutionally excessive.

Id. at 343.

Because of the significant change in the legislative policy for the Habitual Offender Law brought about by the 2001 legislation, we have also reviewed Supreme Court rulings regarding the trial court’s ability to ^consider such legislative change in policy. Indeed, as indicated by the above expression in the Dorthey/Johnson/Lindsey rulings, the “accepted goals of punishment” and the legislative assignment of “sentences that are meaningfully tailored to the culpability of the offender” require that the trial court not completely disregard a change in legislative sentencing policy that occurs after the commission of the crime but before the sentencing. After an obvious legislative change in policy, it cannot be said that a trial court, in considering that change, is substituting its judgment of what constitutes an appropriate sentence for that of the legislature.

In State v. Robinson, 423 So.2d 1053 (La.1982), the trial court sentenced the defendant to the maximum sentence of five years. In imposing that sentence, the trial court took into consideration the enactment of a firearm sentencing provision (former La.C.Cr.P. art. 893.1) which was enacted after the commission of the offense. The statute required a mandatory minimum sentence of five years for all offenses with a maximum sentence of five years or more, if the offense involved the use of a firearm. The Supreme Court affirmed the five-year sentence, stating:

The trial judge took into account the legislative policy evidenced by La. C.Cr.P. art. 893.1 in sentencing in this instance. In imposing the maximum sentence of five years, which independently of article 893.1 was within her discretion, the trial court alluded to the legislative policy enacted after the commission of this crime. That consideration on her part was not legally inappropriate; that consideration and many others were pertinent in the exercise of her sentencing discretion.

Id. at 1063.

This consideration of the legislative policy change has recently been cited by the Supreme Court as a pertinent inquiry for imposing sentences |sunder the Habitual Offender Law after its amendment by the 2001 legislation. In State v. Wilson, 01-2815 (La.11/22/02), 836 So.2d 2, the court reviewed the claim of an unconstitutionally excessive life sentence for the fourth offender whose only crime of violence was his last offense. That offense resulted in a conviction in the trial court of first degree robbery, but on his initial appeal to this court, the first degree robbery conviction was reduced to simple robbery. This court, however, affirmed the trial court’s imposition of the mandatory life sentence since the simple robbery conviction was also a crime of violence. The Supreme Court reversed our affirmation of the sentence for the following reasons:

Because the court of appeal reduced defendant’s conviction from first degree robbery to simple robbery, the district court judge did not have the opportunity to impose the life sentence in light of the lesser conviction. Defendant is entitled to have the district court impose the sentence anew, and, in connection therewith, to present evidence and/or argument to the district court judge that a sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence is unconstitutionally excessive because of the reduced conviction, the non-violent nature of the prior offenses, and the fact that the legislature has amended the Habitual Offender Law to provide a more lenient punishment for crimes committed after June 15, 2001.

Id. (Emphasis supplied.)

The leniency of the new law referred to in Wilson occurs because the violent offender must now have committed crimes of violence for three of the four convictions including the last committed felony. The punishment is still enhanced for 20 years or more for the four-time recidivist pursuant to La. R.S. 529.1(A)(1)(c)(i) which remained unchanged by the 2001 | ¡¡legislation. However, the law is now significantly more lenient with regard to the imposition of the mandatory life sentence.

Likewise, regarding habitual drug offenders such as Terrell, the last drug offense and two of the prior felonies must be violations of the more serious drug charges punishable by imprisonment for ten years or more, as opposed to the lesser possession convictions in this ease. Since Terrell had only one ten-year drug offense, which was his oldest and not his latest offense, the leniency of the new law indicates that such drug offender after June 15, 2001, should be sentenced under La. R.S. 15:529.1(A)(l)(c)(i) to a term ranging from 20 years at hard labor to life imprisonment. According to Wilson, the trial court may take into consideration such leniency as reflected in the legislature’s new policy. Additionally, we note that the trial court was correct in referring to the leniency of the policy also reflected in the guidelines for the new sentencing review panel also established by Act 408 in 2001, La. R.S. 15:574.22. The panel may recommend clemency which presumably would reduce previously imposed life sentences for certain drug offenders whose distribution charges involved quantities of cocaine less than 28 grams.

The Wilson ruling quoted above was rendered only a few days before the trial court’s hearing on Terrell’s motion for reconsideration of sentence. That ruling was not argued to the trial court. Most significantly, the trial court’s reference to the sentencing review panel as the only avenue for relief for Terrell under the new legislative policy of leniency incorrectly discounts the trial court’s primary sentencing role. The trial court “has the option, Imindeed the duty, to reduce such sentence to one that would not be constitutionally excessive” in view of the specific facts regarding the offender’s prior offenses and “the fact that the legislature has amended the Habitual Offender Law to provide more lenient punishment” for drug offenders such as Terrell who commit crimes after June 15, 2001. After those considerations, the trial court may conclude that former La. R.S. 15:529.1’s mandatory life sentence makes no measurable contribution to acceptable goals of punishment now reflected in this state for this defendant. However, that process of consideration by the trial court is not reflected in this record. Accordingly, in view of the Wilson ruling, we remand this case to the trial court for further reconsideration of the sentence.

SENTENCE VACATED; REMANDED FOR RESENTENCING.