author: GROSS, J.

text:
    Andrew J. SUMPTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4403.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   GROSS, J.

We affirm appellant’s conviction of robbery while wearing a mask to conceal his identity.

The trial court did not abuse its discretion in its denial of a cause challenge to juror Mellon, or of a motion for mistrial directed at the comment of a police officer during his direct examination. As to the police officer’s comment, the trial court sustained defense counsel’s objection and gave a curative instruction to the jury. The comment was unsolicited and isolated. The state did not focus on the comment to obtain a conviction. The audio tape that was played to the jury without objection echoed the comment of the police officer during his testimony.

As the state concedes, appellant should be resentenced under a corrected score-sheet. The primary offense was incorrectly scored. Appellant was convicted of robbery while wearing a mask under section 812.13(2)(c), Florida Statutes (2001). The offense level for this type of robbery is six. See § 921.0022(3)®, Fla. Stat. (2001). Applying section 775.0846, Florida Statutes (2001), the robbery is “reclassified” and “ranked one level above the ranking under ... s. 921.0022 ...,” resulting in a level of seven. See Fla. R. Crim P. 3.704(d)(ll).

Appellant cites to Finch v. State, 693 So.2d 1067 (Fla. 4th DCA 1997) and Spicer v. State, 615 So.2d 725 (Fla. 2d DCA 1993). Both cases stand for the proposition that robbery committed while using a mask may not be reclassified as a first-degree felony. However, both cases were decided prior to the amendment of section 775.0845. In 1995, section 775.0845, Florida Statutes (1995) was amended to clarity that “[f]or the purposes of sentencing under chapter 921 ... a felony offense that is reclassified under this subsection is ranked me level above the ranking under ... s. 921.0022 of the offense committed.” (Emphasis added).

The prior version of section 775.0845 applied in Finch and Spicer, required that a penalty be increased rather than reclassified when committed while using a mask. See Cabal v. State, 678 So.2d 815, 316-18 (Fla.1996). After the amendment, it is clear that the statute requires a scoresheet classification to be moved up one level if a defendant is convicted of wearing a mask during the commission of a crime. See Newman v. State, 738 So.2d 981, 983 (Fla. 2d DCA 1999); McDonald v. State, 714 So.2d 643, 643-44 (Fla. 3d DCA 1998).

As the state concedes, the scoresheet also erroneously included offenses committed after the instant offense as part of appellant’s prior record. The armed robbery in this case occurred on July 1, 2000. The armed robbery that was scored as a prior robbery occurred on July 16, 2000. It is therefore not a prior offense. See Fla. R. Crim P. 3.704(d)(14); § 921.0021(5), Fla. Stat. (2001); see also Sumpter v. State, 838 So.2d 615 at 616, (Fla. 4th DCA 2003).

On remand, appellant may be sentenced by the same judge who originally pronounced sentence. Contrary to appellant’s contention, Seays v. State, 789 So.2d 1209 (Fla. 4th DCA 2001) and Epprecht v. State, 488 So.2d 129 (Fla. 3d DCA 1986), do not require resentencing before a different judge. Both of these cases involved due process violations in sentencing. In Seays, it appeared that the trial court had improperly considered a pending murder charge of which the appellant was eventually acquitted; in Epprecht, the record demonstrated that the trial court had improperly taken into account prior charges of which the defendant was acquitted. Here, appellant was convicted of the July 1, 2000 robbery on September 11, 2001, and sentenced on October 12, 2001.. The other offense incorrectly included as part of the prior record occurred on July 16, 2000, with the appellant convicted on June 26, 2001, and sentenced on July 30, 2001. To say that the July 16, 2000 robbery is not a prior offense for the purpose of the scoresheet in this case, is not to say that the trial court cannot take that other robbery into consideration at sentencing.

Affirmed in part, reversed in part, and remanded for resentencing.

MAY, J., and DAMOORGIAN, and DORIAN, Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anthony HOOPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4916.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

      Charlie Crist, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003).

STONE, GROSS and MAY, JJ., concur.


text:
    Rebecca C. DEY, Appellant/Cross-Appellee, v. Gordon J. DEY, Jr., Appellee/Cross-Appellant.
    No. 02-407.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2003.
    John L. Myrick, Esquire, Pensacola, for Appellant/Cross-Appellee.
    Keith A. Mclver, Esquire, Chase, Quin-nell, Mclver, Jackson & Makrs, P.A., Pensacola, for Appellee/Cross-Appellant.
   PER CURIAM.

The appellee petitioned the court to reduce or terminate his monthly alimony payments and to reduce his child support payments. After an evidentiary hearing, the trial court reduced appellee’s alimony obligation based on its comparison of the parties current incomes, but increased ap-pellee’s child support obligation sua sponte. On appeal, appellant argues that the trial court erred in reducing the alimony amount and on cross-appeal, appellee argues the trial court erred by failing to terminate his alimony obligation and increasing his child support obligation. We affirm the trial court’s decrease in the amount of appellee’s alimony obligation without further discussion. However, we reverse that portion of the trial court’s order increasing appellee’s child support obligation.

A trial court cannot modify a child support provision sua sponte, unless such modification was properly pled and notice was given so that the opposing party has a fair opportunity to respond. Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974); Koken v. Neubauer, 374 So.2d 49, 50 (Fla. 3d DCA 1979). In this case, appellant attempted to plead her claim for an increase in child support by orally moving to amend the pleadings to include the claim after the trial court’s sua sponte order. According to Florida Family Law Rule 12.190, amendment of pleadings to conform to the evidence presented is permitted when the unpleaded issues are tried by express or implied consent of the parties. See Fla. R. Civ. P. 1.190. To determine the existence of implied consent, the court considers whether the opposing party had a fair opportunity to defend against the unpleaded issue and whether the party could have offered additional evidence on that issue if it had been pled. Smith v. Mogelvang, 432 So.2d 119 (Fla. 2d DCA 1983). Here, appellant’s motion in of itself effectively amounted to a counter-petition. Thus, appellee was not given a fair opportunity to adequately defend or respond to appellant’s claim for an increase in child support, nor did the appellee implicitly consent to such claim. Since the appellee was prejudiced, the trial court erred in granting appellant’s motion to amend the pleadings.

Accordingly, the portion of the trial court’s order increasing the appellee’s child support obligation is reversed and remanded for consideration of appellee’s motion for reduced child support payments. If the trial court deviates from the child support guidelines in an amount exceeding 5%, the court must provide specific findings to support the deviation.

AFFIRMED in part, REVERSED in part and REMANDED.

BARFIELD, POLSTON and HAWKE S, JJ., concur.


author: MONACO, J.

text:
    Edward Lee CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3639.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.

      James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The defendant takes this appeal from his convictions and sentences, asserting that reversible error was committed during jury selection and in the imposition of consecutive minimum mandatory sentences. We affirm the judgment rendered by the trial court, but reverse and remand with respect to the imposition of consecutive minimum mandatory sentences.

The defendant was charged by Information with attempted robbery with a firearm, two counts of robbery with a firearm, aggravated battery with a firearm, aggravated battery with a deadly weapon, aggravated assault with a firearm, and resisting an officer without violence.

During voir dire, the prosecutor peremptorily struck a prospective juror who was an African-American woman. Defense counsel objected and demanded the prosecution provide a race-neutral reason for the strike. Although the trial court found that the basis of the challenge was race-neutral, defendant asserts that the reason was pretextual and seeks reversal on this ground.

When the prosecutor was asked by the trial court pursuant to State v. Neil, 457 So.2d 481 (Fla.1984), and State v. Slappy, 522 So.2d 18 (Fla.), cert, denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), to provide a race-neutral reason for peremptorily striking this juror, the prosecutor responded that the juror had “testified that her sister is locked up in prison for theft, and she says she’s close to her sister. So for that reason, she probably blamed the State.” The juror related during voir dire that five years earlier her sister had been sent to prison for theft, but had since been released.

Defense counsel objected to the exercise of the challenge, saying, “That’s just an excuse. She didn’t say anything about having any ill feelings about her sister, about her treatment, about the justification of her imprisonment, nothing at all to indicate that that would affect her ability to be fair.” The trial court found, however, that the reason given was not pretextual, and that the State had offered a race-neutral reason for the strike.

In Melbourne v. State, 679 So.2d 759 (Fla.1996), the supreme court articulated the three-step procedure for challenging peremptory strikes of jurors on the ground of racial bias:

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.

At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.
Id. at 764 (footnotes omitted). '

The defendant asserts that the ruling of the trial judge was erroneous for two reasons. The defendant argues, first, that the challenged juror never indicated that she could not render a fair and impartial verdict and that the prosecutor never asked her about her feelings toward the State growing out of the imprisonment of her sister. This argument, however, confuses a peremptory challenge with a challenge for cause. The reasons given for exercising a peremptory challenge need not be equivalent to a challenge for cause. Rodriguez v. State, 826 So.2d 494 (Fla. 4th DCA 2002). Indeed, where a prospective juror is challenged for a race-neutral reason, the fact that the juror asserts that he or she can nevertheless be fair and impartial does not mean that the challenging party must be satisfied with the response. See Symonette v. State, 778 So.2d 500, 503 (Fla. 3d DCA), rev. denied, 794 So.2d 606 (Fla.2001); see also Rodriguez.

Moreover, we have previously held that the fact that a prospective juror has a relative who had previously been criminally prosecuted is in itself a valid race-neutral reason for the exercise of a peremptory challenge. Smith v. State, 799 So.2d 421 (Fla. 5th DCA 2001). The facial reason then for the State’s peremptory challenge of this juror was race-neutral, and the prosecutor’s failure to inquire further of the prospective juror to determine whether she could render a fair and impartial verdict does not alter this conclusion.

The defendant’s second contention is that the explanation for excluding the juror was pretextual because it applied equally to two unchallenged non-African-American venirepersons who ultimately served on the jury. As this court stated in Smith, such a contention essentially requires a credibility analysis by the trial court. Smith, 799 So.2d at 424. It goes without saying that the trial court is in a particularly good position to judge credibility and has broad discretion in this regard. Thus, the focus of the trial court’s inquiry “is not on the reasonableness of the explanation but rather its genuineness.” Melbourne, 679 So.2d at 764. Given the advantage of the trial court’s position to judge credibility, its ruling on the genuineness of a peremptory challenge will be sustained on appeal unless demonstrated to be clearly erroneous. We should not “on a cold record, second guess” the trial judge. See Rodriguez v. State, 753 So.2d 29, 41 (Fla.), cert, denied, 531 U.S. 859, 121 S.Ct. 145,148 L.Ed.2d 96 (2000).

In considering whether the State’s explanation is pretextual, courts should consider, among others, the following factors: the racial makeup of the veni-re; whether prior strikes have been exercised against the same racial group; whether the reason for the challenge is equally applicable to unchallenged jurors; and whether a venireperson is singled out for special treatment. Rodriguez, 753 So.2d at 40. Accordingly, a challenge may be determined to be pretextual where a prospective juror is struck for a reason equally applicable to an unchallenged juror. See, e.g., Fleming v. State, 825 So.2d 1027 (Fla. 1st DCA 2002); Daniel v. State, 697 So.2d 959 (Fla. 2d DCA 1997). Conversely, where genuine differences exist in the responses of prospective jurors, a discriminatory pretext may well not be found. In Smith for example, we upheld the state’s exercise of a peremptory challenge of an African-American venireperson who had one cousin who had recently been prosecuted and another serving time in a federal prison. The defense contested the challenge because the state did not seek to excuse a white venireperson who had a son charged with a juvenile offense that had been dropped before prosecution. This court reasoned that the state could conclude that the African-American juror bore more bias because the prosecutions of his cousins resulted in their imprisonment. Smith, 799 So.2d at 425. Additionally, we observed that the state had likewise peremptorily challenged a white venireperson whose relative had been prosecuted by the state, so that both an African-American and white prospective juror were struck for similar reasons. Id.

The record here reflects that although both of the unchallenged white jurors stated during voir dire that they had unpleasant experiences with the police, the bases for these experiences were starkly different from that of the struck venireper-son. The unpleasant experience of one of the unchallenged jurors involved being stopped by two undercover police officers at an intersection and being told that two pedestrians had the right of way. She had been upset because she did not initially realize the two men were police officers. The other unchallenged juror, who was hearing impaired, explained he and his wife had difficulty communicating with the police after their home was vandalized. There is a palpable difference between having close relatives prosecuted and imprisoned and merely having a negative police experience. Thus, we cannot say that the trial judge was clearly erroneous in its determination that the State had a race-neutral reason for striking the African-American juror.

The defendant also appeals his sentence. At sentencing, defense counsel objected to the imposition of consecutive minimum mandatory terms of imprisonment because the offenses arose from a single criminal episode. The trial court nevertheless imposed four consecutive 10-year minimum mandatory prison terms under section 775.087(2)(d), Florida Statutes (2001) , for each of four offenses committed by the defendant while possessing a firearm.

The State conceded error in connection with the defendant’s motion to correct sentence and agreed that the trial court improperly imposed the consecutive minimum mandatory terms. The State further agreed that the sentences should be corrected so that the four minimum mandatory terms run concurrently rather than consecutively. The trial court agreed, but concluded that because of the expiration of the 60-day period for correction of a sentencing error provided by Florida Rule of Criminal Procedure 3.800(b), it could not grant relief.

In Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002), this court held that section 775.087(2)(d), Florida Statutes, which states that consecutive minimum mandatory sentences shall be imposed for “any other felony offense,” contemplates different criminal episodes before minimum mandatory sentences must be stacked. In view of Stafford, as well as the State’s concession and the trial court’s inclination to grant relief but for the expiration of the 60-day correction period, this cause is remanded for correction of the defendant’s sentences to reflect concurrent, as opposed to consecutive, minimum mandatory sentences.

AFFIRMED in part, REVERSED in part, and REMANDED for correction of sentences.

SAWAYA and PLEUS, JJ., concur.

      . This section provides:
      (d) It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.


text:
    Carl GILLMAN, Appellant, v. Kisha LOCKE, f/k/a Kisha L. Gillman, Appellee.
    No. 1D02-0529.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2003.
    Rhonda S. Clyatt, Panama City, for Appellant.
    Mark D. Davis of Andrews & Davis, DeFuniak Springs, for Appellee.
   PER CURIAM.

The appellant, Carl Gillman, timely appeals from a final judgment of dissolution of marriage. Because the trial court erred in ordering the appellant to pay retroactive child support, we reverse. The order is affirmed with respect to all other issues raised on appeal.

During pendency of the dissolution proceeding, the parties filed motions for temporary relief on several issues, including child support. In a temporary order rendered May 15, 2000, the trial court ordered a rotating custody arrangement and ruled that “[njeither party will be required to pay the other child support given this rotating custody arrangement.”

In the final judgment of dissolution of marriage, rendered September 13, 2001, the trial court ordered the appellant to pay child support in the amount of $707.20 per month. The court also ordered the appellant to pay back child support in the amount of $353.60 per month from April 2000 through September 2001, with a total arrearage of $6,011.20.

The appellant contends that this was error, because the final judgment conflicts with the temporary order that was in place and which did not require the parties to pay child support. We agree.

A trial court has the discretion to order child support retroactively, but it is error to do so for the period covered by a temporary order already in place. Israel v. Israel, 824 So.2d 953, 953 (Fla. 4th DCA 2002); see also Rodgers v. Diederichsen, 820 So.2d 362, 364 (Fla. 1st DCA 2002); Kraus v. Kraus, 749 So.2d 513, 514 (Fla. 2d DCA 1999). Therefore, the portion of the order requiring the appellant to pay back child support is reversed.

AFFIRMED in part, REVERSED in part.

BARFIELD, KAHN and PADOVANO, JJ., concur.


author: WHATLEY, Judge.

text:
    V.J.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5123.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

V.J.C. appeals the disposition order committing him to the Department of Juvenile Justice at a moderate risk placement, which is a residential commitment disposition. He contends that the trial court erred in not ordering and reviewing a predisposition report before determining his disposition.

Section 985.229(1), Florida Statutes (2001), requires that a trial court order a predisposition report for any child for whom a residential commitment disposition is recommended. There is no indication in the record that such a report was ordered in this case. The State argues that the trial court’s statements at the disposition hearing indicating that it knew the recommendation of the Department reveals that a predisposition report was considered by the court. We do not agree that the court’s statements support such a conclusion. The State also notes that it obtained a copy of the predisposition report prepared for this case from the Pasco County State Attorney’s Office. Setting aside the question of why the State did not supplement the record with this report, the fact that a predisposition report on V.J.C.' exists also does not support the conclusion that the trial court reviewed the report before deciding V.J.C.’s disposition.

Accordingly, we reverse and remand with directions that a new disposition hearing be conducted in strict compliance with section 985.229.

Reversed and remanded.

NORTH CUTT and STRINGER, JJ., Concur.


author: PER CURIAM. KAHN, J.,

text:
    Donna BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3348.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2003.

      James T. Miller, Jacksonville, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order summarily denying her 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 Appellant’s claim that counsel was ineffective for failing to investigate her claim that the victim misidentified her, we reverse. We affirm all other issues raised in Appellant’s motion without discussion.

Appellant entered a plea of guilty as a matter of convenience to grand theft auto, and she was sentenced to time served. Subsequently, Appellant filed the present motion in which she alleged that her counsel was ineffective for failing to investigate her claim that the victim misidentified her.

In order to allege a facially sufficient claim of ineffective assistance of counsel for failure to investigate and interview a witness, the claim must state the identity of the witness, the substance of the witness’ testimony, and an explanation of how the omission of this testimony prejudiced the outcome of the case. Marrow v. State, 715 So.2d 1075 (Fla. 1st DCA 1998). In the instant case, Appellant identified the witness as the victim, attached a notarized affidavit of the victim stating that Appellant was not the person who stole his car, and she explained that she would not have entered a plea of guilty if the only witness had not identified her as the person who stole his car. In addition, the record reflects that Appellant asserted her innocence throughout the proceeding, as evidenced by her entry of her plea of convenience. Under these limited circumstances, Appellant has made a facially sufficient claim of ineffective assistance of counsel in spite of her entry of a plea.

Because the trial court’s attachments do not conclusively refute Appellant’s claim, we reverse the summary denial of Appellant’s claim that her counsel was ineffective for failing to ascertain whether the victim had correctly identified Appellant. We otherwise affirm the trial court’s order, and remand for the trial court to either support its summary denial with record excerpts conclusively establishing that Appellant is entitled to no relief or to conduct an evidentiary hearing on the claim.

AFFIRMED in part; REVERSED in part, and REMANDED.

BOOTH and WOLF, JJ., concur; KAHN, J., concurs with written opinion.

KAHN, J.,

concurring.

I agree with the reversal and remand in this case. On the specific facts before us, this result is consistent with positions that I have previously urged:

I see no reason why a post-conviction petitioner, should not normally have to allege, as support for the claim of prejudice in fact, that the petitioner either had a procedural defense to the charge or a factual defense that would have been viable had the case proceeded to trial, instead of concluding with a plea.

Mason v. State, 742 So.2d 370, 372 (Fla. 1st DCA 1999) (Kahn, J., concurring). In this case, Appellant, as detailed by the majority opinion, has plainly shown the existence of a viable defense that was, at least arguably, denied her because of ineffective assistance of trial counsel.


author: THOMPSON, C.J.

text:
    George C. JOHNS, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-428.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David H. Foxman, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

George C. Johns appeals his conviction for attempted sexual battery on a child by a person in familial or custodial authority.

Johns was charged in count one with lewd assault on a child by touching the victim’s penis. In counts two and three, he was charged with sexual battery on a child by a person in familial or custodial authority, in violation of section 794.01(8)(b). “ ‘Sexual battery’ means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object ....” § 794.011(l)(h). Counts two and three alleged that Johns committed the crimes, “to wit: by placing [the victim’s] penis into his mouth.” Johns was convicted as charged on count one, and of the attempt on counts two and three. Johns does not challenge his convictions on count one and count two, but contends that the evidence did not support a conviction for the act alleged in count three. We affirm because the transcript supports the trial court’s conclusion that there had been testimony regarding two sexual batteries, and because any difference between the act charged and the act proved was immaterial.

The victim and Johns knew each other through the Little League, where Johns was at times either a coach or president. The victim began living with Johns because the victim was having problems at home. According to the victim, “papers” were signed which allowed the victim to live with Johns. The original complaint was lodged by the mother of one of two similar fact witnesses. This similar fact witness testified that he knew Johns through the Little League. After the second occasion on which Johns grabbed the witness’s crotch, the witness told his mother. The mother’s report caused police to question the victim, who was removed from Johns’s custody shortly thereafter. The other similar fact witness testified that he first met Johns when Johns chaperoned a school trip. Sexual activity occurred between the witness and Johns at a later encounter, and further activity occurred after this witness joined the Little League. Johns told police that he had sexual contact with the victim involved in this case on about twenty or twenty-five occasions. He admitted that on some occasions, he would pretend to kiss the victim’s penis and then pull away, but that his mouth may have touched the victim’s penis once or twice.

The state alleged that Johns committed the sexual battery alleged in count two in October, and the sexual battery alleged in count three in November. Johns contends that his motion for judgment of acquittal on count three should have been granted because there was no evidence that he attempted the act charged in the information: “placing [the victim’s] penis into his mouth.” Instead, Johns contends that the only evidence was that Johns attempted to kiss the victim’s penis. Although either act would have been an attempted sexual battery, Johns contends that his conviction must be reversed because the particular act charged was not proven.

Johns cites the victim’s testimony in relation to count two. The prosecutor asked if Johns had tried to kiss the victim’s penis or put his mouth on it during the week before Thanksgiving, and the victim responded:

He’d like-he would pull my penis out and him [sic] go down there and try to kiss it and then I jerked away again and he got mad.

At that point in his testimony, the victim did not testify that Johns tried to put the victim’s penis in his mouth. Earlier, however, the prosecutor asked if, after September, Johns did anything other than hold his penis. The victim responded:

He would put it up to his mouth and rub his mustache against to [sic] it. He would like to try to kiss it. And then at certain points he would try to put it in his mouth.

The victim testified that he felt Johns’s lips touching his penis, that “[h]e done that like a couple times,” and that the first time he did it was in late September or October. After digressions in the victim’s testimony, the prosecutor returned to the topic and established through the victim that the second instance occurred around Thanksgiving. Although at that point the victim did not state that Johns tried to put the penis in his mouth, the victim’s earlier statement supports a finding that in November, the time frame alleged in count three, Johns tried to put the victim’s penis in his mouth.

Furthermore, we would affirm even in the absence of the more specific testimony. Based on cases such as Zwick v. State, 730 So.2d 759 (Fla. 5th DCA 1999), Johns contends that his conviction on count three must be reversed because the act alleged was not the act proven. In Zwick, we reversed a conviction where the information alleged that the defendant rubbed his penis on the victim’s buttocks, but where the jury had been charged that it could find the defendant guilty if it found that the defendant “committed upon [the victim] actual or simulated sexual intercourse, masturbation, actual lewd exhibition of the genitals, or any act or conduct which simulated that sexual battery was being or would be committed on [the victim].” We reversed in Zwick because the general verdict made it impossible to determine whether the jury found the defendant guilty of uncharged acts. See also Long v. State, 92 So.2d 259 (Fla.1957) (“where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged.... The information may have alleged them in the conjunctive and proof of one would have sufficed but if one of the state of facts is alleged, it cannot be established by proof of another”); Rodriguez v. State, 694 So.2d 96 (Fla. 3d DCA 1997) (conviction reversed where the information charged boating while intoxicated, but where the jury was instructed that it should find the defendant guilty if it found the defendant had boated either while “intoxicated” or while “impaired,” the former term being stronger than the latter); D.R. v. State, 790 So.2d 1242 (Fla. 5th DCA 2001) (reversing conviction where juvenile was charged with placing his penis in union with the victim’s vagina, but where the trial court, doubting that the juvenile had actually touched the victim, found the juvenile guilty of lewd exhibition).

In Zwick and similar cases, however, there were substantial differences between the acts alleged and the variety of acts upon which the convictions could have been or were based. In contrast, in the instant case, there is no material difference between the two acts. That is to say, whether Johns attempted to place the victim’s penis in his mouth or on his mouth is no more than an issue of semantics.

AFFIRMED.

SAWAYA and ORFINGER, JJ., concur.


text:
    Anthony J. AKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2288.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.

      James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Anthony Akins appeals his conviction for armed robbery with a firearm or deadly weapon. Akins contends that his conviction should be reversed because the state failed to present any evidence that the item he carried “was designed or may readily be converted to expel a projectile by the action of an explosive.” Because there was no evidence to establish that he possessed a firearm, Akins argues, he cannot be convicted as charged. We affirm.

Akins was charged by information for robbing a Lil Champ convenience store with a firearm or deadly weapon. Shortly before the robbery, Akins met his foster brother, Michael Floyd, near the store. Akins told Floyd that he was going to rob the store because he owed people money. After talking with Akins, Floyd called his foster mother and then returned to the store. Floyd arrived while the police were investigating the robbery. After talking with his foster mother again, Floyd spoke to the police and identified Akins as the person he thought robbed the store. The police obtained a photograph of Akins, and the victim, who stated that she had attended high school with Akins, identified Akins as the robber.

The victim testified that Akins walked into the store with his face covered. He approached the counter and demanded money. Akins leaned over the counter when she explained that most of the money was in a drop box rather than in the cash drawer, and she got a good look at his face. The victim also testified that Akins placed the firearm on the counter, pointed it at her, and told her to give him all the money:

It was — it looked like a shotgun, but it wasn’t as long as a shotgun was, so I’m assuming it was a sawed-off shotgun. I know I’ve heard of that before. I’ve heard of people cutting off the end so it’s shorter. That’s what I believe it was. To be for sure, I’m not definite.

Akins argues that Evans v. State, 758 So.2d 1282 (Fla. 3d DCA 2000), and Stanley v. State, 757 So.2d 1275 (Fla. 4th DCA 2000), support his argument that his conviction should be reversed. We disagree. The defendant in Evans was convicted of two counts of armed robbery with a firearm. A police officer testified that the “gun” used in the robbery was a starter pistol, and that although it did not expel a projectile when tested, it made a loud “pop.” Id. at 1282. After examining the statutory definition of firearm, the district court reversed the convictions holding that “the State’s evidence was legally insufficient to establish that the starter pistol was a ‘firearm.’ ” In contrast to Evans, in the instant case there was no evidence that the weapon pointed at the victim could not expel a projectile.

Similarly, Stanley is not applicable. In Stanley, for reasons unknown, the state charged the defendant with robbery with a weapon instead of robbery with a firearm, although the evidence was that he used a firearm. After reviewing the statutory definitions of firearm and weapon, the district court stated that the defendant could have been convicted of robbery with a firearm if that had been the charge. However, the court held, he could not be convicted of the crime charged, robbery with a weapon, because firearms are excluded from the statutory definition of “weapon.” Id. at 1277-1278. Stanley is not applicable to the instant case because AMns was charged with robbery with a firearm and convicted of robbery with a firearm.

Akins is accurate when he alleges that no firearm was recovered and that none was discharged at the scene. However, the direct evidence and the circumstantial evidence in this case support the conviction. It is not fatal to the prosecution if the state does not introduce the weapon into evidence. Fletcher v. State, 472 So.2d 587 (Fla. 5th DCA 1985) (evidence sufficient to convict where, although the victim did not see a weapon, the defendant told the victim it was a razor blade, and the victim felt a cold, hard object at his throat). Eyewitness testimony that the defendant possessed a firearm is sufficient evidence to support a finding that the defendant was in possession of a firearm. See e.g. id.; Crump v. State, 629 So.2d 231 (Fla. 5th DCA 1993). Further, a conviction does not require a showing that the firearm is loaded or operational. Bentley v. State, 501 So.2d 600 (Fla.1987).

In the instant case, the victim’s testimony that she thought the weapon was a sawed off shotgun, coupled with Akins’s nonverbal implication that he would use it against the victim, sufficed to support a finding that Akins possessed a firearm during the robbery. Compare T.T. v. State, 459 So.2d 471 (Fla. 1st DCA 1984) (affirming conviction where two witnesses testified that the defendant had what appeared to be a gun, and the defendant threatened to shoot and to blow out the witness’s brains); Thompson v. State, 748 So.2d 394 (Fla. 1st DCA 2000) (victim’s knowledge goes to the weight of the testimony, and therefore testimony that the victim had seen a gun handle when the defendant lifted his shirt, but that the witness had seen guns only in movies, was properly submitted to the jury).

AFFIRMED.

SHARP, W., and SAWAYA, JJ. concur.


author: PLEUS, J.

text:
    Travis Alonzo FLEMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1612.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.

      James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. *
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Flemmings was convicted of first degree murder and robbery as a result of his participation in a killing committed by his cofelon, Santiago. Although the evidence adduced at trial was sufficient to support the convictions, there was ample evidence to warrant giving the independent act instruction. Specifically, the jury heard two police interviews with Flem-mings in which he maintained he knew nothing about a plan to rob the victim. He also testified to the same at trial. Even the state’s key witness impheating Flem-mings, John Polanco, did so only in his seventh interview with police after he had struck a deal for his testimony. In his first six interviews, Polanco maintained there was no plan to rob the victim. Instead, consistent with Flemmings’ testimony, Polanco told police the group merely sought to buy drugs from the victim and that Flemmings was surprised when Santiago shot the victim. All this evidence was placed before the jury. Any of it would have warranted the independent act instruction. “Where any evidence which would support the theory of independent act has been presented, the defendant is entitled to the jury instruction.” Parker v. State, 458 So.2d 750, 752 (Fla.1984); Barfield v. State, 762 So.2d 564 (Fla. 5th DCA 2000). See also McGee v. State, 792 So.2d 624 (Fla. 4th DCA 2001). Accordingly, we reluctantly reverse and remand for a new trial.

REVERSED AND REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . See Fla. Std. Jury Instr. (Crim.) 3.04(h).


author: TORPY, J.

text:
    Robert BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1990.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 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 Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant was one of two passengers in the back seat of a vehicle traveling in bumper to bumper traffic during a special event in Daytona Beach. Officers approached the vehicle on foot, noting a violation of the traffic laws. As the officers got close to the vehicle, they smelled the odor of cannabis and observed Appellant and another passenger placing clear baggies of green leafy substance into a cigar box. When Appellant was confronted by the officers, he threw the box into the back window area of the vehicle. The box was subsequently retrieved by the officers and found to contain ten individually wrapped baggies of marijuana and $4,476 in United States currency. Appellant was charged with possession of marijuana with intent to sell. Appellant testified at his trial that he worked for his father as a plasterer, and that his father always paid him in cash. He said that he carried the large amount of cash because he did not maintain a checking account or have a credit card. The jury convicted Appellant as charged.

The sole issue on appeal is whether Appellant’s timely motion for judgment of acquittal should have been granted. Appellant argues the evidence was insufficient to support a jury finding on the intent element. We affirm.

We believe the circumstantial evidence in this case was sufficient to deny Appellant’s motion for judgment of acquittal and submit the case to the jury. Willingham v. State, 781 So.2d 512 (Fla. 5th DCA 2001) (small amount of cocaine together with $330 in cash and scale sufficient to create jury issue); Melton v. State, 824 So.2d 948 (Fla. 1st DCA 2002) (small amount of crack cocaine located in proximity to firearm sufficient to create jury issue).

McCullough v. State, 541 So.2d 720 (Fla. 4th DCA 1989), relied upon by Appellant, is distinguished. There, the only circumstantial proof of intent to sell was the possession of 15 cocaine rocks packaged together. The court noted that no cash was found on McCullough’s person and there was no other circumstantial proof of an intent to sell. Here, conversly, the separate packaging of the drugs, coupled with the fact that the drugs and cash (a substantial sum) were kept together, supports the inference that Appellant intended to sell the drugs. Although Appellant offered some explanation as to why he had over $4,000 in a cigar box with numerous bags of drugs, it was for the jury to determine whether to accept his explanation.

AFFIRMED.

GRIFFIN and PLEUS, JJ., concur.

      . Appellant also cites Jackson v. State, 818 So.2d 539 (Fla. 2nd DCA 2002). Even assuming that we agree with Jaclcson, it too can be distinguished.


author: SHARP, W., J.

text:
    Telisa R. POOSER, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D02-1458.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.
    Telisa R. Pooser, Orlando, pro se.

      John D. Maher, Deputy General Counsel, Tallahassee, for Appellee Unemployment Appeals Commission.
   SHARP, W., J.

Pooser appeals from an order of the Unemployment Appeals Commission which affirmed the dismissal of her proceeding before the appeals referee. We affirm.

Pooser sought unemployment compensation benefits in connection with two former employers during the year 2001. One was Edna’s Place and the other employer was Planet Hollywood. Her claims were denied as to both employers. She appealed, challenging the Planet Hollywood determination. This proceeding relates to the first employer, Edna’s Place.

Both appeals from the unemployment determinations proceeded together to the appeals referee, although it is not clear how or who did that. Two hearings were set for February 6, 2002 — 10:00 a.m. for Edna’s Place and 10:45 a.m. for Planet Hollywood. At the first hearing, Pooser explained the only appeal she took was with regard to Planet Hollywood. She admitted she voluntarily left Edna’s Place because she was not making enough money, but she wanted to claim the hours she worked there.

The appeals referee asked if she wanted to withdraw her appeal as to Edna’s Place. She said she was not interested in appealing the determination on her employment separation from Edna’s Place because: “I did leave there voluntarily. I wasn’t making enough money to.... ”

The appeals referee twice warned Poos-er, “For Edna’s Place it would disqualify you from November 7th and until you earn $3,468 after that. You understand that will stand if you withdraw your appeal, that stands exactly the way it is.”

The appeals referee agreed to the withdrawal and entered a written order approving Pooser’s request to withdraw and dismiss the appeal regarding Edna’s Place. Pooser appealed this decision and requested that the Unemployment Appeals Commission reinstate her appeal. Finding no misinformation or coercion on the part of the appeals referee, the Commission denied reinstatement, and affirmed the withdrawal order. There is no error here. See Osborne v. Florida Unemployment Appeals Commission, 548 So.2d 700 (Fla. 3d DCA 1989), rev. denied, 562 So.2d 346 (Fla.1990).

On appeal to this court, Pooser claims she was fired by Planet Hollywood and initially denied benefits. That determination was reversed, but Pooser asserts she is not receiving benefits because she dismissed her appeal as to Edna’s Place. She claims she was never told she would be disqualified from receiving benefits from Planet Hollywood if she dismissed her case against Edna’s Place, and had she known, she would not have done so. Thus, she reasons, her appeal should be reinstated.

How the two separations from the two employers affect each other is not clear from this record. In any event, we are unable to • see how Pooser is in a worse position as to Planet Hollywood by having her appeal to Edna’s Place withdrawn. Even if the appeals. referee should have warned Pooser about the consequences of letting stand her disqualification “after November 7th until she earned $3,468,” nevertheless, if she had no valid claim against Edna’s Place, the result would have been the same. Under the circumstances we must affirm.

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

      . Rule 60BB-5.022 of the Florida Administrative Code provides for the withdrawal and reopening of an appeal:
      The appellant may with the approval of the appeals referee withdraw the appeal prior to or at the hearing. If the withdrawal request is made prior to the hearing, it must be in writing and signed by the appellant; if made during the hearing, it must be entered orally on the record. If approved, the referee shall issue a written decision dismissing the appeal; provided, however, the appellant may request reopening of the appeal within 20 days of the date of issuance of the dismissal decision. The referee shall act upon such a request in the manner set forth in Rule 60BB-5.017, F.A.C., regarding reopening the appeals dismissed for nonappearance of the appellant. Notwithstanding those provisions, however, a withdrawn appeal shall be reopened only upon showing that the withdrawal request was made as a result of misinformation from or coercion by the appellee or an employee of the Agency for Workforce Innovation.


text:
    Scott Lewis MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2885.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2003.
    Nancy A. Daniels, Public Defender; Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s conviction, but reverse the minimum mandatory portion of his sentence pursuant to the reasoning set forth in Bundrage v. State, 814 So.2d 1133 (Fla. 2d DCA 2002).

Affirmed in part, reversed in part, and remanded for resentencing.

DAVIS, BROWNING and POLSTON, JJ., concur.


text:
    Charles M. AYCOCK, Sheriff, etc., Appellant, v. Shawn F. WILSON, Appellee.
    No. 5D02-1000.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.
    Kelly A. Greene, General Counsel, Osceola County Sheriffs Office, Kissimmee, for Appellant.
    Mary Elizabeth Fitzgibbons of Fitzgib-bons Law Firm, P. A., Kissimmee, for Appellee.
   PER CURIAM.

AFFIRMED. See In re Forfeiture of One (1) 1994 Honda Prelude, 730 So.2d 334 (Fla. 5th DCA 1999). We certify conflict with In re Forfeiture of One 1988 Lincoln Town Car, VIN 1LNBM81F8JY612959, 826 So.2d 342 (Fla. 2d DCA), review granted, 826 So.2d 992 (Fla.2002).

SHARP, W., GRIFFIN and ORFINGER, JJ., concur.


text:
    Jackie Vernon CHAPPELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3664.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.

      James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Jackie Vernon Chappell appeals his convictions for possession of cocaine, possession of 20 grams or less of cannabis, possession of drug paraphernalia, and resisting an officer without violence. He contends that he had been illegally stopped, and that the court erred in denying his motion to suppress. We affirm.

At the hearing on the motion to suppress, Officer Ryan Brackmeier testified that he responded to a call about a suspicious male with long hair, a baseball cap, and bad teeth sitting on the steps at an apartment complex. The call came from a resident of the complex who identified herself. When Officer Brackmeier arrived, he found Chappell, who fit that description, sitting on the steps. When Officer Brack-meier stepped out of the patrol car, Chap-pell walked down the steps to Officer Brackmeier. Officer Brackmeier testified that when he asked Chappell what he was doing there, Chappell responded that he was waiting for a friend to arrive home. Chappell also stated that the people residing in the first-floor apartment could identify him. Officer Brackmeier testified that Chappell knocked on the door to that apartment, opened the door, put his two bags inside the doorway, and announced to the occupants that they knew him. The occupants put the bags back outside the door and closed it, stating that they did not know Chappell.

According to Officer Brackmeier, he asked Chappell for identification but when Officer Brackmeier ran the name Chappell gave him, no record was found for the name and date of birth given by Chappell. Officer Brackmeier asked for further information so that he could ascertain Chap-pell’s identity, and Chappell began to pace, stating that he had to urinate. Officer Brackmeier told Chappell he was not going to urinate in public, and that as soon as the quick interview was concluded, he could leave. Chappell again stated that he had to urinate. Leaving the larger bag and a pair of shoes behind, he picked up the smaller of his two bags, a waist pouch, and began strapping it to his waist as he walked away. Officer Brackmeier told him to stop, but Chappell continued walking away. When Chappell got to the corner of the breezeway he turned and took a stance that suggested he was about to urinate. Officer Brackmeier told him to stop, and Chappell began to run. While Officer Brackmeier was chasing him, Chappell tossed the bag into the bushes, stopped, and put his hands up. Officer Brackmeier retrieved the bag, which contained cocaine, cannabis, and drug paraphernalia.

The trial court ruled that the encounter between the officer and Chappell was initially consensual, but that the officer had grounds to detain Chappell after he gave the officer false identification. On appeal, Chappell contends that his having given false identification was insufficient grounds to detain him.

There are three levels of interactions between police officers and citizens: (1) consensual encounters; (2) investigatory stops; and (3) arrests. McMaster v. State, 780 So.2d 1026 (Fla. 5th DCA 2001). A consensual encounter does not involve restriction of the citizen’s freedom. Pop-ple v. State, 626 So.2d 185 (Fla.1993). In the instant case, the initial involvement between the officer and Chappell was consensual. The officer pulled into the apartment complex and Chappell approached the officer. Further, the officers asking Chappell for identification and running a check did not change the encounter into a detention. See Lightboume v. State, 438 So.2d 380, 387-388 (Fla.1983).

When the officer told Chappell that he could not leave, and when he ordered Chappell not to walk away, the encounter obviously became a detention. Whether the detention was lawful depends upon whether the officer had “reasonable suspicion” to stop and detain Chappell for investigation. See A.D.J. v. State, 813 So.2d 127, 129 (Fla. 5th DCA 2002).

In justifying a stop, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” “[T]he facts [must] be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” To determine whether information is sufficient to support a reasonable suspicion, the court must assess the totality of the circumstances known to the law enforcement officer and determine whether an experienced law enforcement officer could draw inferences and make deductions that would raise a suspicion that the individual being stopped was engaged in wrongdoing.

Id. at 129-130 (quoting State v. Hunter, 615 So.2d 727, 730 (Fla. 5th DCA 1993)).

A court’s evaluation of reasonable suspicion is guided by common sense and ordinary human experience. Id. at 130 (citing State v. Bums, 698 So.2d 1282, 1284 (Fla. 5th DCA 1997)). Moreover, part of the totality of the circumstances is the fact of flight. Id. (citing Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). In the instant case, responding to a call from a person who would be classified as a “citizen informant,” and would therefore be considered reliable, see State v. Maynard, 783 So.2d 226, 230 (Fla.2001), the officer found Chap-pell sitting on the stairway with no apparent purpose. Chappell claimed that the residents of the first-floor apartment could identify him, but they disclaimed knowledge of him and jettisoned his bags. A check yielded no person with the name and date of birth given by Chappell. When Chappell said he had to urinate, he strapped on a waist pouch and walked away, leaving behind the rest of his belongings. Under the circumstances, we conclude that Officer Brackmeier was justified in detaining Chappell.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

      . In light of this result, we do not address the state's argument that motion to suppress was properly denied under California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).


text:
    FLORIDA FISH AND WILDLIFCONSERVATION COMMISSION, Appellant, v. Raymond S. PRINGLE, Jr., and Ronald Fred Crum, Appellees.
    No. 1D02-0580.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2003.

      Jonathan A. Glogau, Special Counsel, Office of the Attorney General, Tallahassee and Charles Shelter, Deputy General Counsel, Florida Fish and Wildlife Conservation Commission, Tallahassee, for Appellant.
    Ronald A. Mowrey and Mary E. Watts of Mowrey & Biggins, P.A., Tallahassee, for Appellees.
   PER CURIAM.

This is an appeal from a declaratory judgment in which the circuit court invalidated two rules of the Fish and Wildlife Conservation Commission and declared a fishing net designed by the appellees, Pringle and Crum, to be a legal net under Article X, section 16 of the Florida Constitution. We find that this action was not properly before the circuit court and reverse.

Article X, section 16 was adopted by initiative in November 1994. This amendment prohibits the use of certain fishing nets and limits the size of other nets used in the nearshore and inshore waters of Florida. The Legislature has delegated the authority to implement this constitutional amendment to the Commission. See Art. XII, § 23, Fla. Const.; § 370.027(2), Fla. Stat. (Supp.1998); 370.093, Fla. Stat. (Supp.1998). Under this grant of authority, the Commission has the power to set gear specifications and prohibitions. See § 370.027(2), Fla. Stat. (Supp.1998); Florida Marine Fisheries Comm’n v. Pringle, 736 So.2d 17 (Fla. 1st DCA 1999). Accordingly, the Commission promulgated rules 68B-4.0081(2)(d) and 68-39.0047(1), Florida Administrative Code. Rule 68B-4.0081(2)(d) prohibits the use of any, seine net with a mesh size larger than two inches- stretched mesh, and rule 68B-39.0047(1) prohibits the harvesting of mullet with any gear not specified in the rule.

On August 2; 1999, Pringle and Crum filed an amended complaint for declaratory judgment in the circuit court. In the complaint, they sought a declaration that a net they designed was legal under the Commission’s rules and Article X, section 16. They alleged that their net which is constructed of three inch stretched mesh is a rectangular net, not a seine net, and is allowed under the rules. In the alternative, Pringle and Crum claimed that if the net is prohibited under the rules, then the rules are unconstitutional because they violate the due process and equal protection clauses of the Florida Constitution. According to Pringle and Crum’s complaint, the net is a permissible net under Article X, section 16, regardless of the administrative rules.

The Commission filed a motion to dismiss on the ground that the plaintiffs had failed to exhaust available administrative remedies and a motion to transfer on the ground that the trial court lacked primary jurisdiction. These motions were denied and the Commission then answered the complaint. In its answer, the Commission maintained that the Pringle and Crum net was either a seine net subject to the two inch mesh requirement of rule 68B-4.0081, Florida Administrative Code or a prohibited gill net.

After a trial, the circuit court rendered its final declaratory judgment on February 12, 2002. The circuit court found that the Pringle and Crum net was allowed under Article X, section 16. Additionally, the circuit court found that there was no rational basis for restricting the use of the Pringle and Crum net and that prohibition of the net would result in the complete deprivation of individuals’ right to earn a living. For these reasons, the court held that rules 68B-4.0081 and 68B-39.0047 were unconstitutional.

We conclude that this declaration was made prematurely. The plaintiffs did not exhaust available administrative remedies before they sought relief in the courts and they offered no valid reason to be excused from the exhaustion requirement. It is well established that a constitutional challenge to an agency’s rule must first be presented to the agency and the administrative process exhausted before the issue may be raised in the courts. See Key Haven Associated Enters, v. Board of Trs. of Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982). As stated in Florida Marine Fisheries Commission v. Pringle, 736 So.2d 17, 20 (Fla. 1st DCA 1999), “[t]he doctrine of exhaustion of administrative remedies precludes judicial intervention in executive branch decisionmaking where administrative procedures can afford the relief a litigant seeks.”

Moreover, under the doctrine of primary jurisdiction, the circuit court should have refrained from exercising its jurisdiction. The issue raised in the complaint involves technical expertise in the area of fishing gear specifications and prohibitions. Such expertise is outside the ordinary experience of judges and juries, but within the special competence of the Commission. Therefore, the Commission, not the circuit court, should have ruled upon the issue first. See Flo-Sun, Inc. v. Kirk, 783 So.2d 1029 (Fla.2001). In Flo-Sun, the supreme court explained:

The doctrine of primary jurisdiction enables a court to have the benefit of an agency’s experience and expertise in matters with which the court is not as familiar, protects the integrity of the regulatory scheme administered by the agency, and promotes consistency and uniformity in areas of public policy. Pursuant to the doctrine, ‘[jjudicial intervention in the decisionmaking function of the executive branch must be restrained in order to support the integrity of the administrative process and to allow the executive branch to carry out its responsibilities as a co-equal branch of government.’

783 So.2d at 1037, (quoting, Key Haven Associated Enters, v. Board of Trs. of the Internal Improvement Trust Fund, 427 So.2d 153, 157 (Fla.1982)) (citations omitted). Relief at the administrative level and not in the circuit court would have been appropriate.

For these reasons, we reverse the decision of the circuit court and vacate the declaratory judgment.

ALLEN, C.J., DAVIS and PADOVANO, JJ„ CONCUR.


author: ERVIN, J.

text:
    Donnie K. SASSNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1890.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2003.

      James T. Miller, Jacksonville, for Appellant.
    Charlie Crist, Attorney General, Janelle C. Gillaspie, Assistant Attorney General, Tallahassee, for Appellee.
   ERVIN, J.

We affirm without comment most of appellant’s 15 postconviction claims, because they are either facially insufficient or refuted by the record. After reviewing the state’s Toler brief, we now reverse and remand for further proceedings as to four of those claims.

First, appellant contends that his burglary conviction is invalid because the statute under which he was prosecuted, section 810.02, Florida Statutes (1995), was part of Chapter 95-184, Laws of Florida, which the Florida Supreme Court held was unconstitutional and void in its entirety in Heggs v. State, 759 So.2d 620 (Fla.2000). The trial court denied this claim for the reason that Heggs invalidated the 1995 sentencing guidelines, and, because appellant had been sentenced as a habitual felony offender (HFO), rather than under the guidelines, Heggs did not apply. Although the trial court correctly found that Heggs did not affect HFO sentences, it failed to address appellant’s allegation that Heggs voided the burglary statute under which he was prosecuted. The state, in its Toler brief, agrees that the trial court’s order and the attachments thereto fail to demonstrate appellant is not entitled to relief; therefore, we reverse and remand as to this point with directions for the lower court to attach portions of the record that demonstrate appellant is not entitled to relief or to hold an evidentiary hearing as to it.

Second, appellant claims that counsel was ineffective, because he failed to argue the elements of burglary of a dwelling. More particularly, appellant argues that he was convicted of burglary of a dwelling, but the facts showed that the building burglarized was a detached garage which was not within the curtilage of the victim’s home; nevertheless, counsel failed to argue that the garage was not within the curtilage.

The state, in its Toler brief, admits that the order and attachments fail to show that appellant is not entitled to relief, and we agree. Appellant has stated a legally sufficient claim of ineffective assistance of counsel by alleging his lawyer failed to delineate the elements of burglary of a dwelling or pursue lesser offenses, including that of burglary of a structure. Moreover, appellant has alleged prejudice in that burglary of a structure is a third-degree felony, whereas burglary of a dwelling is a second-degree felony, and the record before us shows that appellant burglarized a detached garage, and nothing in the attachments discloses that it was enclosed by a fence. Pertinent case law establishes that burglary of a detached garage not enclosed together with the home by a fence does not constitute burglary of a dwelling under the 1993 burglary statute. See Martinez v. State, 700 So.2d 142 (Fla. 5th DCA 1997).

The trial court’s reasoning for not finding that appellant’s allegations did not make out a prima facie showing of prejudice was that the burglary jury instruction defines “structure” as “any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding that structure.” Fla. Std. Jury Instr. (Crim.) p. 203 (emphasis added). This explanation does not, however, address appellant’s curtilage or fencing issue. See State v. Hamilton, 660 So.2d 1038 (Fla.1995). Because appellant has satisfied both prongs of the Strickland test, we reverse the summary denial of this claim and remand for further proceedings.

Third, appellant contends that counsel was ineffective for failing to investigate a possible intoxication defense. The trial court denied the motion on this point, because the voluntary-intoxication defense is inconsistent with the misidentification defense counsel presented; therefore, appellant could not benefit from both defenses. The state’s Toler brief supports the trial court’s conclusion.

We disagree. Appellant set forth a facially sufficient claim by alleging he “was drinking alcohol and smoking crack cocaine before and while he was looking for work that day,” and that “he was very intoxicated that day.” He also alleged that he had given his attorney such information, but that counsel did not investigate an intoxication defense. These allegations are sufficient to warrant further inquiry regarding counsel’s strategy on such issue. See Hester v. State, 732 So.2d 331 (Fla. 1st DCA 1998); Harley v. State, 753 So.2d 693 (Fla. 4th DCA 2000); Griggs v. State, 744 So.2d 1145 (Fla. 4th DCA 1999).

Fourth, appellant claims ineffective assistance of counsel by not properly investigating and preparing the misidentifi-cation defense in that counsel failed to obtain a store surveillance videotape that was filmed before the burglary, which would have shown how appellant looked, particularly his hairstyle, at the time of the burglary. The trial court failed to address this claim in its order; therefore, we reverse and remand for further proceedings on this point.

AFFIRMED in part, REVERSED in part, and REMANDED with directions to attach those portions of the record that demonstrate appellant is not entitled to relief on-the above claims or to hold an evidentiary hearing.

BARFIELD and WOLF, JJ., concur.

      . Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).

      . Two of these claims, i.e., ineffective assistance of counsel regarding the elements of burglary and the voluntary-intoxication defense, are duplicated in the motion. Thus, while they appear as four separate claims, we consider them as two.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: FULMER, Judge.

text:
    DEPARTMENT OF REVENUE o/b/o Vonkisha M. GREENE, Appellant, v. Malcolm F. BUSH, Appellee.
    No. 2D01-1883.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.

      Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   FULMER, Judge.

The Department of Revenue (DOR) appeals the trial court’s order declining to hold Malcolm F. Bush in contempt for failure to pay child support. DOR argues that the trial court violated Florida Family Law Rule of Procedure 12.491 by rejecting the hearing officer’s recommended order in its entirety rather than exercising one of the options set forth in rule 12.491(f). We agree and, therefore, reverse.

This appeal arose out of contempt proceedings initiated by DOR against Bush after he failed to pay court-ordered child support. After a hearing, the hearing officer entered a recommended order, which was submitted to the trial court for approval. The order recommended that Bush be found in willful contempt for failure to comply with a prior support order because he was $8,274 in arrears as of January 25, 2001. The hearing officer also concluded that Bush “has had and does have the ability to have paid and to pay the same.” No factual basis was set forth to support this conclusion.

The purge provision of the recommended order stated that Bush may purge the contempt by paying $50 on February 2, 2001, and $45 on or before February 16, 2001, toward arrears. The hearing officer found that Bush had demonstrated a present ability to purge the contempt “based upon the following findings of fact: $50.00 cash, watch worth $20.00 and a bicycle worth $25.00.” In the event that Bush failed to timely pay the purge, the recommended order also outlined the procedures to be followed to enforce a deferred 179-day incarceration provision.

The trial court reviewed the hearing officer’s recommended findings of fact and recommended order to hold Bush in contempt but entered an order declining to hold Bush in contempt. In its order, the trial court discussed three problems with the hearing officer’s recommended order. The trial court first concluded that ownership of the watch and bicycle purportedly worth $45 did not satisfy Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), in that the personal property was not readily exchanged for legal tender in order to provide the ability to purge. The trial court next concluded that ordering deferred incarceration based upon the ownership of personal property valued at less than $1,000 would violate the homestead exemption for personal property under article X, section 4, of the Florida Constitution unless Bush was given an opportunity to claim the constitutional protection. Finally, the trial court observed that certain provisions of the recommended order give “the appear-anee of a finding of indirect criminal contempt” instead of civil contempt.

All three of these perceived problems address the sanction recommended by the hearing officer. The trial court gave no reason for rejecting the adjudication of contempt. According to rule 12.491(f), “[u]pon receipt of a recommended order, the court shall review the recommended order and shall enter an order promptly unless good cause appears to amend the order, conduct further proceedings, or refer the matter back to the hearing officer to conduct further proceedings.” Here, the trial court chose none of the three alternatives. Rather than rejecting the entire order, the trial court should have amended the order, conducted further proceedings, or referred the matter back to the hearing officer to conduct further proceedings. Therefore, we reverse and remand for further proceedings.

Because we are remanding for further proceedings, we note a serious deficiency in the hearing officer’s recommended order and our concern with two of the trial court’s conclusions of law. The recommended order contained no findings of fact to support the recital that Bush “has had and does have the ability to have paid and to pay” the support previously ordered. And the scant findings that were recited regarding Bush’s employment are insufficient insofar as no dates and places of employment are identified. In Gregory v. Rice, 727 So.2d 251 (Fla.1999), the supreme court reviewed the provisions of rule 12.491 and reiterated the necessity for recommended orders to contain detailed findings of fact to support the hearing officer’s recommendation because the trial court’s review of the recommended order is confined to the findings made by the hearing officer unless a party moves to vacate the order. If a motion to vacate the order is filed, only then must the trial court review the entire record of the proceedings before the hearing officer. Thus, the absence of detailed findings of fact precludes proper review of the recommended order by both the trial and appellate courts in cases where no motion to vacate is filed.

With respect to the trial court’s conclusions of law, it appears that the trial court was troubled by the contemplation in the recommended order that personal property be sold to generate funds to pay the purge. However, Bowen provides: “In determining whether the contemnor possesses the ability to pay the purge amount, the trial court is not limited to the amount of cash immediately available to the contemnor; rather, the court may look to all assets from which the amount might be obtained.” 471 So.2d at 1279. The trial court was also of the view that Bush’s personal property was subject to homestead exemption protection. We question whether Bush would qualify to invoke the homestead exemption, but even if he did, it would not automatically shield his property. The homestead exemption is not generally construed to defeat obligations for family support. “[TJhe exemption statutes will not, unless the contrary intention is clearly shown, be construed to enable the husband to claim its benefit against the very persons to whom he owes the obligation of support and maintenance.... ” Anderson v. Anderson, 44 So.2d 652, 655 (Fla.1950) (citation and quotation marks omitted).

Accordingly, we reverse and remand for further proceedings consistent with this opinion and the provisions of rule 12.491.

Reversed and remanded.

WHATLEY and CASANUEVA, JJ„ concur.


author: ALTENBERND, Chief Judge.

text:
    Santos RINCON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4016.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.
   ALTENBERND, Chief Judge.

We affirm the trial court’s order denying Santos Rincon’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We comment, however, on one issue.

The trial court denied Mr. Rin-con’s claim that his sentence was illegal. Mr. Rincon maintained that his three-year minimum mandatory term of imprisonment was not authorized by statute. The trial court ruled that an illegal sentence cannot be challenged by postconviction motion and that the issue must be preserved and raised on direct appeal. This is incorrect. See Súber v. State, 827 So.2d 1043 (Fla. 2d DCA 2002). Nevertheless, we affirm because Mr. Rincon disclosed that he was convicted of both manslaughter and aggravated battery. Although the minimum mandatory term would be illegal for the manslaughter conviction, see Strahom v. State, 436 So.2d 447 (Fla. 2d DCA 1983), it is authorized for an aggravated battery conviction. See § 775.087(2)(g), Fla. Stat. (1995).

In the event that Mr. Rincon still maintains that his sentences are illegal, this affirmance is without prejudice to any right Mr. Rincon might have to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) challenging the legality of the sentences.

Affirmed.

CASANUEVA and STRINGER, JJ., Concur.


text:
    George Wesley SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2068.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.

      James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant was convicted of battery (Count I), two counts of resisting an officer without violence (Counts IV and V), one count of resisting an officer with violence (Count II) and one count of attempting to deprive an officer of his weapon (Count VI).

Appellant’s first point on appeal is that the convictions for resisting an officer with violence and two counts of resisting an officer without violence violate double jeopardy principles because they arose from one continuous event. The State concedes error on this point. Madison v. State, 111 So.2d 1175 (Fla. 5th DCA 2001). Therefore, we vacate the judgments and sentences as to counts IV (resisting an officer without violence) and V (resisting an officer without violence).

Appellant’s second point relates to the sufficiency of the evidence to support the conviction for attempting to deprive an officer of his weapon. We decline to review this issue, however, because appellant failed to preserve this issue for appeal. Stephens v. State, 787 So.2d 747 (Fla.2001).

We affirm the convictions and sentences except for the convictions on Counts IV and V. We remand for recalculation of the scoresheet and resentencing.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and PLEUS, JJ., concur.


author: GRIFFIN, J.

text:
    Norma VAUGHAN, Appellant, v. William Drew VAUGHAN, et al, Appellees.
    No. 5D02-2918.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.
    Norma Vaughan, Leesburg, for Appellant.
    No Appearance for Appellees.
   GRIFFIN, J.

Appellant, Norma Vaughan, appeals an order dismissing the suit she filed below, which appears to be in the nature of an action to set aside the final judgment dissolving her marriage to Buford Vaughan. The trial court found that there was no basis in law or fact for the suit. We have reviewed the briefs and the record and conclude that the trial court’s ruling was correct.

AFFIRMED.

PLEUS and TORPY, JJ., concur.


author: COVINGTON, Judge.

text:
    Cesar OROSCO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5003.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.
   COVINGTON, Judge.

Cesar Orosco appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm but note that the trial court did not have to rule on the merits of Orosco’s motion because it was untimely filed.

Affirmed.

FULMER and KELLY, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Vincent T. SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5115.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.
   CASANUEVA, Judge.

Vincent T. Sims challenges the order of the trial court dismissing without prejudice his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Sims argues that his three-year minimum mandatory sentence is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). We affirm the order of the trial court because Mr. Sims’ motion is facially insufficient as he does not affirmatively allege that he committed his offenses on a date within the window created by Taylor.

We note, however, that the trial court did not dismiss Mr. Sims’ motion as facially insufficient; rather, it dismissed the motion without prejudice to refile pending the resolution of the issue by the Florida Supreme Court. However, the supreme court had dismissed review in Taylor several months before the court issued this order. Our affirmance is therefore without prejudice to Mr. Sims’ right to file a facially sufficient 3.800(a) motion.

WHATLEY and NORTHCUTT, JJ. Concur.


text:
    Edrick Lee HINES, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4235.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.
   COVINGTON, Judge.

Edrick Lee Hines appeals from the summary denial of his motion to correct illegal sentence. Hines claims that his sentence is illegal under this court’s decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), which held chapter'99-188, Laws of Florida, unconstitutional. Hines’ claim is facially insufficient as he does not claim that his date of offense is within the window created by Taylor, nor does he inform the court of what he was convicted, all things required to create a facially sufficient Taylor claim. We therefore affirm without prejudice to Hines’ filing a facially sufficient 3.800(a) motion.

FULMER and KELLY, JJ., Concur.


text:
    Iven B. JONES, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3958.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.
    Iven B. Jones, III, Century, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant, Iven B. Jones, III, [“Jones”], appeals the summary denial of his rule 3.850 motion for post-conviction relief, but we lack jurisdiction to consider the appeal because it was not timely filed. The order denying Jones’s 3.850 motion was rendered October 2, 2002. On October 10, 2002, Jones filed an amendment to his 3.850 motion. Because the court had already ruled on the 3.850 motion, the court treated the amendment as a supplemental motion for post-conviction relief and denied the supplemental motion by order rendered October 21, 2002.

On November 12, 2002, Jones entrusted to prison officials for mailing a motion for rehearing. A motion for rehearing must be filed within fifteen days of service of the order denying the 3.850 motion. See Fla. R.Crim. P. 3.850(g). The order denying Jones’s 3.850 motion was served on October 2, 2002, and the order denying Jones’s supplemental motion was served on October 21, 2002. Fifteen days after service of the order on October 21, 2002, would be Tuesday, November 5, 2002. Even applying the mailbox rule, Jones’s motion for rehearing, which was entrusted to prison officials on November 12, 2002, was untimely as to both orders denying post-conviction relief and did not toll the time for taking an appeal. As a result, Jones’s notice of appeal, which was entrusted to prison officials for mailing on December 15, 2002, was untimely. The appeal is dismissed. See Alterisio v. State, 704 So.2d 164 (Fla. 5th DCA 1997); Childs v. State, 649 So.2d 349 (Fla. 1st DCA 1995).

APPEAL DISMISSED.

ORFINGER and MONACO, JJ., concur.

      . In his motion for rehearing, Jones claimed that he did not timely receive the order denying his 3:850 motion. Jones would have to pursue this argument in a petition for belated 3.850 appeal filed in this court under Florida Rule of Appellate Procedure 9.141(c).


text:
    Timothy A. HENDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-3441.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.
    Timothy A. Henderson, Orlando, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   SHARP, W., J.

Henderson seeks a belated appeal from the trial court’s denial of his petition for writ of habeas corpus. He claims he submitted a timely notice of appeal and after inquiring as to its status has not received a response. We deny the petition because the allegations contained therein do not show that the time is ripe for seeking a belated appeal.

Henderson alleged he submitted his notice of appeal in a timely manner but has received no response. He must first obtain notification from the circuit court that no notice of appeal was received; he cannot presume his notice of appeal was not delivered. Until the status of his appeal is established, his request for a belated appeal is premature.

Petition for Belated Appeal DENIED Without Prejudice to Refile Based on Response of Circuit Court.

ORFINGER and MONACO, JJ., concur.


text:
    Steven DARST, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    Nos. 5D00-2262, 5D00-2459.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.
    James B. Gibson, Public Defender, and Linda L. Gaustad, Assistant Public Defender, Daytona Beach, for Appellant/ Cross-Appellee.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee/ Cross-Appellant.
   UPON REMAND FROM SUPREME COURT

PER CURIAM.

The supreme court has quashed our decision in Darst v. State, 816 So.2d 680 (Fla. 5th DCA 2002), and has remanded the case to this court. State v. Darst, 837 So.2d 394 (Fla.2002). The supreme court’s rationale for its decision is explained in Mills v. State, 822 So.2d 1284 (Fla.2002).

Accordingly, we affirm the conviction and downward departure sentence.

AFFIRMED.

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


text:
    Martine SELLERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4784.
    District Court of Appeal of Florida, First District.
    March 4, 2003.

      Nancy A. Daniels, Public Defender; Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Martine Yusef Sellers, appellant, challenges his conviction and sentence for grand theft, arguing that the trial court erred in denying his motion for judgment of acquittal on the charge of grand theft because the State failed to present sufficient evidence that the value of the stolen property exceeded $300. We agree and reverse the conviction and sentence and remand to the trial court for further proceedings.

At trial, the State relied upon the testimony of the victim of the grand theft, the owner of the property, to establish the value of the stolen property. The State asked the victim to give “either the fair market value or the replacement value ... on the total of the items” of the property. The victim testified that it was “probably about $500” then stated that including the clothing (that was also stolen), it was “at least $800 and probably more ... probably add another $100 on top of that.” She admitted that she did not “itemize all the clothing” that she was valuing at $400. At the conclusion of the State’s case, appellant’s counsel moved for a judgment of acquittal, arguing that the victim’s testimony did not properly establish the value of the property. The trial court took the matter under advisement, but allowed the case to go the jury, and denied the motion at the sentencing hearing after finding that “the evidence was adequate to establish prima facie satisfaction of the element of value.”

The trial court’s ruling on the motion for judgment of acquittal is subject to de novo review. Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001)(en banc). As recognized by the Fourth District in I.T. v. State, 796 So.2d 1220 (Fla. 4th DCA 2001), the issue of whether a trial court errs in denying a motion for judgment of acquittal because the State failed to prove the value of the property involves a two-prong process. I.T., 796 So.2d at 1221 (citing Taylor v. State, 425 So.2d 1191, 1193 (Fla. 1st DCA 1983)). First, the court must determine whether the person testifying is competent to testify as to the value of the property. Second, if the person is competent, the court must ascertain whether the evidence adduced at trial is sufficient to prove that the property was worth over $300 at the time of the theft. Id.; see also Gilbert v. State, 817 So.2d 980, 982 (Fla. 4th DCA 2002). The competency of the victim/owner was conceded by appellant below and that issue is, therefore, not before us.

The evidence was insufficient to prove the value of the property in this case because the value was estimated and no other proof was presented. Gilbert, 817 So.2d at 982 (citing I.T., 796 So.2d at 1222 (finding evidence insufficient where person testifies that two of the items are probably worth two or three hundred dollars and a third item was “worth at least that much”); Moore v. State, 183 So.2d 563 (Fla. 4th DCA 1966) (finding testimony that cost of replacing stolen item was approximately $300 was insufficient where the approximation was not directed solely to stolen item); Toler v. State, 779 So.2d 594 (Fla. 2d DCA 2001) (finding owner’s testimony that property was “roughly” in excess of $300 insufficient); In the Interest of F.R., 539 So.2d 588, 590 (Fla. 1st DCA 1989) (finding evidence insufficient where owner estimated property’s value at “about 310 [dollars], something like that”)). The victim’s testimony was an approximation at best, and the State also failed to elicit any testimony as to the condition of the property at the time of the theft, thereby fading to establish the total market value of the items taken.

Accordingly, this court concludes that the evidence at trial was insufficient to support a conviction for grand theft, and that the motion for a judgment of acquittal should have been granted. Appellant’s conviction should be reduced from grand theft to petit theft. This case is remanded for resentencing.

Reversed and remanded with directions.

DAVIS, BROWNING and POLSTON, JJ., concur.

      . The property in this case included a range of items, i.e., one tarp, box of hair rollers, two rental movies, forty (unidentified) pieces of clothing, laundry soap, wine bottle, laundry basket, camera, four rolls of film, Sony Walkman, twenty-eight cassette tapes, CD, disposable camera, beach bag with suntan lotion and water, and one Nokia cell phone.


text:
    DUVAL COUNTY SCHOOL BOARD and Johns Eastern Co., Inc., Appellants, v. Betty LONG, Appellee.
    No. 1D02-971.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    Richard A. Mullaney, General Counsel and Douglass E. Myers, Jr., of Office of the General Counsel, Jacksonville, for Appellants.
    William W. Massey, III, Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. Sunland Hospital v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

ERVIN, KAHN, and PADOVANO, JJ., concur.


text:
    Melvin SESSIONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1189.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    An appeal from the Circuit Court for Duval County. Lance M. Day, Judge.
    Nancy A. Daniels, Public Defender; David A. Davis, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Philip W. Edwards, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002).

ERVIN, WOLF and Van NORTWICK, JJ., concur.


text:
    B.C.M., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2725.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer and Katina L. Du-rost, Assistant Public Defenders, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Anne C. Toolan, Assistant Attorney General, Tallahassee, for Appellee. ■
   PER CURIAM.

B.C.M. appeals an order revoking probation, adjudicating him delinquent and imposing high-risk commitment and probation for the offense of first-degree misdemeanor petit theft. B.C.M. contends that because he had already served one year of commitment, which is equivalent to the maximum sentence for petit theft, his probationary term had expired; therefore, the trial court did not have jurisdiction over such offense, and the state agrees, conceding error. See § 985.231(l)(a)(l)(a) & (l)(d), Fla. Stat. (1999); N.P.L. v. State, 819 So.2d 254 (Fla. 1st DCA 2002); T.M.B. v. State, 689 So.2d 1215 (Fla. 1st DCA 1997), approved on other grounds, 716 So.2d 269 (Fla.1998).

REVERSED and REMANDED for further consistent proceedings.

ERVIN, WOLF and Van NORTWICK, JJ., concur.


text:
    Bruce W. PEARSON, M.D., and Mayo Clinic Jacksonville, Appellants, v. Lisa GABRELCIK, Appellee.
    No. 1D02-574.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    Stephen H. Grimes and Susan L. Kelsey of Holland & Knight, LLP, Tallahassee; George E. Schulz, Jr., and Dominic C. MacKenzie of Holland & Knight, LLP, Jacksonville; and Marjorie C. Makar, Mayo Clinic Jacksonville Legal Department, Jacksonville, Attorneys for Appellants.
    George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa; C. Steven Yerrid and Ralph L. Gonzalez, of The Yerrid Law Firm, Tampa; and John Beranek of Aus-ley & McMullen, Tallahassee, Attorneys for Appellee.
   •OPINION ON MOTION FOR CLARIFICATION

PER CURIAM.

This cause is before us on Appellee’s Motion for Clarification or Certification. We deny the motion for certification, but grant the motion for clarification and, accordingly, withdraw our former opinion of December 4, 2002, and substitute in its place this clarifying opinion.

Appellants appeal an award of attorneys fees based on a proposal for settlement made pursuant to Florida Rule of Civil Procedure 1.442, and Florida Statutes sections 45.061 and 768.79. We must reverse because the proposal for settlement was invalid because it failed to “state the amount and terms attributable to each party [defendant]” as required by Rule 1.442(c)(3). Hilyer Sod, Inc. v. Willis Shaw Express, Inc., 817 So.2d 1050 (Fla. 1st DCA 2002), rev. granted, 2002 Fla. LEXIS 2402 (Fla. Nov. 5, 2002).

Our decision on this issue renders the remaining issue moot.

REVERSED.

ALLEN, C.J., and BOOTH and BARFIELD, JJ., concur.


text:
    Christopher SUDA, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-488.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    John M. Weinberg, Miami, for Appellant.
    Charlie Crist, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Christopher Suda, appeals his judgment and sentence for trafficking in Methylenedioxymethamphetamine (MDMA) on the grounds that the trial court abused its discretion in admitting the testimony of an undisclosed State witness. We agree, and reverse and remand the matter for a new trial.

While the trial court properly found the State’s failure to disclose the witness prior to trial was error, it abused its discretion in finding that the discovery violation was harmless because Suda was aware of the existence of the witness, and could have deposed her prior to trial.

[W]here the State commits a discovery violation, the standard for deeming the violation harmless is extraordinarily high. A defendant is presumed to be procedurally prejudiced “if there is a reasonable [possibility] that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.”

Cox v. State, 819 So.2d 705, 712 (Fla.2002) (quoting State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995)). In this case, there is a reasonable possibility that had the State disclosed prior to trial its intent to call the witness, Suda would not only have deposed the witness, but may very well have altered his trial strategy. Thus, we cannot say beyond a reasonable doubt that Suda was not procedurally prejudiced by the discovery violation, and we reverse and remand for a new trial. See Cox, 819 So.2d at 712. In light of our determination as to this issue, we see no need to address Suda’s other claim.

Reversed and remanded for a new trial.

DAVIS, BROWNING and POLSTON, JJ., concur.


text:
    Keith BARCLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-4971.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    Keith Barcley, pro se, petitioner.
    Charlie Crist, Attorney General, and Anne C. Toolan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order of December 11, 2000, denying petitioner’s amended petition for writ of error coram nobis in Okaloosa County Circuit Court case number 82-27-CFA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D).

ALLEN, C.J., BENTON and HAWKES, JJ., concur.


text:
    Edward MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-4813.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    Edward Miller, pro se, petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Edward Miller seeks a belated appeal of an order denying his motion for postcon-viction relief following an evidentiary hearing. In support, he alleges that he asked his counsel to initiate an appeal of any adverse ruling of the trial court, but counsel failed to do so. In addition, Miller alleges that he was not furnished a copy of the trial court’s order until after the time for initiating an appeal had expired, and he attaches documentation from his institutional mailroom to corroborate this claim.

We issued an order to show cause, and the state appends to its response an affidavit of petitioner’s counsel stating that a request for an appeal was not made. On this basis, the state asserts that an eviden-tiary hearing is required in order to determine petitioner’s entitlement to a belated appeal. However, the state has not disputed petitioner’s claim that he was not timely furnished a copy of the trial court’s order, and we conclude that Miller’s sworn allegations in this regard and the corroborative documentation he has provided establish an independent basis for granting the relief he seeks. See Brigham v. State, 769 So.2d 1100 (Fla. 1st DCA 2000).

Accordingly, the petition for belated appeal of the order of May 3, 2002, denying petitioner’s motion for postconviction relief in Duval County Circuit Court case number 96-7096-CF-A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

ALLEN, C.J., BENTON and HAWKES, JJ, concur.