text:
    The STATE of Florida, Appellant, v. Karim BAGLEY, Appellee.
    No. 3D02-18.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Rehearing and Clarification Denied May 14, 2003.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   WELLS, Judge.

The State appeals the suppression of defendant Karim Bagley’s pre-trial photographic identification and confession. We reverse.

On June 7, 2001 an information was filed charging Bagley and two co-defendants with numerous crimes relating to the kid-naping and robbery of a confidential informant during a drug sting. Bagley was charged with armed robbery, kidnaping with a weapon, armed car-jacking, and attempted trafficking in cocaine.

Bagley subsequently filed a motion to suppress alleging that a digital photograph from which the confidential informant/victim identified him was obtained following an unlawful arrest. At the hearing on the motion to suppress, Miami-Dade Police Detective Gerard Starkey testified that he was contacted by the Miami-Dade Police Department Narcotics Bureau regarding the abduction and robbery of a confidential informant by the participants of a drug conspiracy in which the confidential informant had been participating at the behest of the Miami-Dade Police Department and the Federal Bureau of Investigation. Detective Starkey testified that he had been advised that members of the Miami-Dade Police Department and the FBI had seen their confidential informant enter a silver or gray van with a specific Georgia license tag number. Some time later, the informant returned to the officers and agents and advised them that he had been robbed of his jewelry including a gold imitation Rolex watch. The confidential informant provided the officers and agents with the descriptions of the individuals who had abducted and robbed him, described the van they were driving, and provided the license tag number of the van. He also provided the cellular telephone numbers being used by the van’s occupants.

The Miami-Dade Police Department issued a BOLO for a gray van, with a specific Georgia license tag number, used in an armed robbery and occupied by three to four males. Using the cellular telephone numbers provided by the confidential informant/victim, the Miami-Dade Police Department also was able to track the van’s speed and travel direction. Consequently, the Florida Highway Patrol in the Orlando area was contacted, provided with this information, and advised that the van was headed its way.

According to Florida Highway Patrol Trooper Albert Joseph Renard, some time late in the evening of the abduction/robbery or early the following morning, he received a BOLO describing a gray van with a specific Georgia license plate number occupied by three male subjects who allegedly had been involved in an armed kidnaping and robbery. When he saw a gray van matching the BOLO, he contacted dispatch to confirm that this was the vehicle involved in the armed robbery and kidnaping, and upon confirmation, requested backup, stopped the van, and had the occupants, three males and a female, step out and raise their hands.

According to Renard, the occupants, who were wearing a large amount of jewelry, were patted down for weapons. During the pat down, Bagley, one of the van’s occupants, was found to be wearing a gold imitation Rolex watch. The van’s occupants were Mirandized, handcuffed, and placed in police cars for transport to the Highway Patrol station. The van was searched and found to contain a bag of U.S. currency.

After they arrived at Highway Patrol Headquarters, the van’s occupants were photographed. These photographs were e-mailed to the Miami-Dade Police Department where the confidential informant identified Bagley as one of the men who had kidnaped and robbed him. Upon receipt of this identification confirmation, Bagley was re-Mirandized and admitted participating in the kidnaping and robbery.

At the close of the evidence, the trial court concluded that while the BOLO was sufficient to create a founded suspicion to justify the stop of the van, there was insufficient evidence to support an arrest at either the stop or at the trooper’s station. Bagley’s motion to suppress was granted. We disagree and reverse.

In reviewing a trial court’s ruling on a motion to suppress, appellate courts must accord a presumption of correctness to the trial court’s determination of the historical facts, but must independently review mixed questions of law and fact that ultimately determine the constitutional issues arising in the context of the Fourth Amendment. Thus, determinations of probable cause and reasonable suspicion are entitled to a de novo review on appeal. See Moody v. State, 842 So.2d 754 (Fla.2003); see also Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996); Melendez v. Sheriff of Palm Beach County, 743 So.2d 1145, 1147 (Fla. 4th DCA 1999).

As observed in State v. Catt, 839 So.2d 757 (Fla. 2d DCA 2003):

“Probable cause is a fluid concept that deals in probabilities, which include common sense conclusions by law enforcement officers.” Williams v. State, 731 So.2d 48, 50 (Fla. 2d DCA 1999) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Probable cause is not the same standard as beyond a reasonable doubt, and “the facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based.” Williams, 731 So.2d at 50 (quoting State v. Heape, 369 So.2d 386, 389 (Fla. 2d DCA 1979)).

The State maintains that the combined knowledge of the officers provided reasonable grounds to believe Bagley had committed a felony. We agree. “The fellow officer rule allows an arresting officer to assume probable cause to arrest a suspect from information supplied by other officers.” Voorhees v. State, 699 So.2d 602, 609 (Fla.1997); State v. Sams, 676 So.2d 1045 (Fla. 5th DCA 1996)(concluding that if the officer initiating an arrest is ultimately found by a court to have had probable cause to make an arrest or search, it does not matter whether the officer who carried out the directive of the initiating officer had an independent basis for determining that probable cause existed).

Here, the BOLO and combined knowledge of the officers provided reasonable grounds to believe Bagley had committed a felony, and provided probable cause for the arrest. See § 901.15 Fla. Stat. (2002)(“[a] law enforcement officer may arrest a person without a warrant when ... [h]e or she reasonably believes that a felony has been or is being committed and that the person to be arrested has committed or is committing it”). The offenses at issue occurred at approximately 1:45 p.m. The van in which Bagley was traveling was pulled over at approximately 12:30 a.m. based on a description of the van and its specific Georgia license tag. The officer making the stop knew that several men were purported to be inside this specific van and that the van had earlier been involved in an armed robbery. Moreover, cellular transmissions from a telephone number provided by the confidential informant/robbery victim as that being used by those who had kidnaped and robbed him, confirmed the route of flight and tracked the vehicle to the Orlando area where the stop occurred. This information was properly viewed as rehable, having come from the confidential informant/victim as well as from the observations of state and federal agents. See State v. Butler, 655 So.2d 1123, 1130 (Fla.1995)(confidential informant’s detailed tip, together with police officer’s observation of defendant, gave officer probable cause for warrantless search and arrest). Reasonable grounds existed to support an arrest.

This case is clearly distinguishable from London v. State, 540 So.2d 211 (Fla. 2d DCA 1989), which the trial court found persuasive in granting the motion to suppress. London involved a BOLO that could not provide probable cause for an arrest and was based on information from an unidentified source and a description so general that it also could not provide probable cause. The same cannot be said here.

Accordingly, the order under review is reversed and the cause remanded.


source: Caselaw Access Project

author: DAMOORGIAN, DORIAN, Associate Judge.

license: Public Domain

text:
    Ernst Ludwig KIPP, Appellant, v. Sigrun KIPP, Appellee.
    No. 4D02-1321.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Rehearing Denied June 2, 2003.

      Elliot H. Scherker and Julissa Rodriguez of Greenberg, Traurig, P.A., Miami, for appellant.
    Joel M. Weissman of Joel M. Weissman, P.A., Doreen M. Yaffa, P.A., Denise Cale-gan Desmond, P.A., West Palm Beach, for appellee.
   DAMOORGIAN, DORIAN, Associate Judge.

Appellant, Ernst Ludwig Kipp (“former husband”) timely appeals the “Final Judgment on Former Wife’s Application For Contempt on Paragraph 4D and Exhibit A-l of Marital Settlement Agreement Incorporated into Final Judgment.” We disagree with the lower court and reverse.

The trial court entered a final judgment of dissolution of marriage, specifically incorporating a marriage settlement entered into between the parties. The agreement provided in paragraph 4D that as part of the equitable distribution, the former husband was to pay to the appellee, Sigrun Kipp, n/k/a Sigrun Kaliwoda (“former wife”), “[a]n additional sum up to TWO MILLION ($2,000,000) [DOLLARS] in cash at the time that the wife closes on any subsequent parcel of real estate which is used for the primary residence of the children.”

Soon after the dissolution, the former wife purchased a house. The parties stipulated that the total purchase price of the house was $970,000. The former husband wired funds in that amount to the former wife. Soon after closing, counsel for the former wife inquired as to whether the former husband had paid the former wife $2,000,000. Counsel for the former husband replied that the amount due under the agreement had been paid.

The former wife filed an application for civil contempt against the former husband for failure to pay the sum of $1,030,000 out of the $2,000,000 allegedly due under paragraph 4D of the agreement.

After a non-evidentiary hearing, the trial court entered a final judgment concluding that paragraph 4D of the contract was clear on its face and that the former husband was obligated to pay the former wife a total of $2,000,000 with respect to her purchase of a residence, regardless of the amount actually paid by the former wife to purchase the residence.

The issue before us is whether the trial court erred, as a matter of law, in its interpretation of the agreement. “The interpretation of the wording and meaning of the marital settlement agreement, as incorporated into the final judgment, is subject to de novo review.” McIlmoil v. McIlmoil, 784 So.2d 557, 561 (Fla. 1st DCA 2001); see also Coe v. Abdo, 790 So.2d 1276 (Fla. 4th DCA 2001)(holding that a marriage settlement agreement is to be construed as a matter of law). Moreover, absent any evidence that the parties intended to endow a special meaning in the terms used in the agreement, the unambiguous language is to be given a realistic interpretation based on the plain, everyday meaning conveyed by the words. McIlmoil, 784 So.2d at 561. Finally, a court must construe a contract in a manner that accords with reason and probability; and avoid an absurd construction. Katz v. Katz, 666 So.2d 1025, 1028 (Fla. 4th DCA 1996).

Here, the operative language in the provision in question is the phrase “up to.” The phrase “up to” is a phrase of limitation used to set a cap or maximum amount contract. See Enter. Leasing Co. S. Cent., Inc. v. Hughes, 833 So.2d 832 (Fla. 1st DCA 2002)(holding that statute capped the amount of damages for the vicarious liability of the lessor of a vehicle where it stated that a lessor would be liable “only up to $100,000 per person and up to $300,000 per incident for bodily injury”).

In the context of paragraph 4D the plain meaning of the phrase “up to” leads us to the inescapable conclusion that the phrase set a cap but not the amount the former husband would have to pay for the cost of the house to be purchased by the former wife.

The former wife argues that paragraph 4D does not state that the “up to” limitation correlates to the cost of the home to be purchased and that the words “the cost of the home actually purchased” would have to be added to the provision for the former husband to prevail. This additional modifier would not be necessary after a reading of the plain language of the provision. The term “up to” modifies the amount the former husband would have to pay. The provision implies that the husband could potentially pay $2,000,000 but only “up to” that amount. Contrary to the former wife’s argument, a proper reading of the agreement does not require that a modifier be added to the provision.

The fact that both sides ascribe different meanings to the language does not mean the language is ambiguous so as to allow the admission of extrinsic evidence. See Lambert v. Berkley S. Condo. Ass’n, 680 So.2d 588, 590 (Fla. 4th DCA 1996)(holding that a true ambiguity does not exist merely because a document can possibly be interpreted in more than one manner). At trial, although each side interpreted the contract differently, both agreed it was unambiguous and requested the contract interpretation to be done as a matter of law. The former wife cites to parol evidence in the form of deposition testimony from herself discussing her intent that she was entitled to the entire $2,000,000. As the record makes clear, however, although the parties submitted a transcript of the dissolution proceedings along with the deposition testimony from the two parties, the trial court’s ruling as to the issue before this court was based on the language of the agreement. This court has consistently held that parol evidence is not admissible where terms of a contract are complete and unambiguous. Bombardier Capital, Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001); McKay v. State Farm Fire and Cas. Co., 731 So.2d 852, 853, 855 (Fla. 4th DCA 1999). As we find no ambiguity in the language, it would be inappropriate for this court to consider parol evidence or remand this case for consideration of parol evidence. Bd. of Trs. of the Internal Improvement Trust Fund v. Lost Tree Vill. Corp., 805 So.2d 22, 26 (Fla. 4th DCA 2001).

We, therefore, reverse the final judgment of the trial court ordering the husband to pay $1,024,696.40.

GROSS and MAY, JJ., concur.

      . In their briefs, the parties rounded off the dollar amounts.

      . Where the contract is susceptible to an interpretation that gives effect to all of its provisions, the court should select that interpretation over an alternative interpretation that relies on negation of some of the contractual provisions. Inter-Active Servs., Inc. v. Heathrow Master Ass’n, Inc., 721 So.2d 433, 435 (Fla. 5th DCA 1998). Here, if the parties had intended a blanket $2 million award, then paragraph 4D would have been worded like paragraphs 4A and 4B. For example, in paragraph 4A the former husband was to pay "the sum of THIRTEEN MILLION ($13,000,000) DOLLARS.” The phrase "up to” appears nowhere else in the agreement other than in paragraph 4D. The inclusion of the language "up to” in paragraph 4D, however, distinguishes it from the other provisions and manifests an intent that an unspecified amount up to $2 million would be paid to the wife, depending on the value of the house.


author: MONACO, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Jehoshaphat MITCHELL, Respondent.
    No. 5D03-652.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.
    John Raymaker, Tallahassee, for Petitioner.

      James Russo, Public Defender, and Blaise Trettis, Assistant Public Defender, Viera, for Respondent.
   MONACO, J.

The petitioner, Department of Children and Families (“DCF”), sought a writ of prohibition to address the trial court’s order directing DCF to release the respondent, Jehoshaphat Mitchell, on furlough from the Florida Civil Commitment Center to enable him to attend a funeral. DCF further sought an emergency order staying the implementation of the trial court’s order. As respondent was to be released in accordance with the furlough order shortly after the petition was filed, we granted the stay, but directed respondent to file an expedited response.

Although the granting of the stay has now mooted the issue of Mitchell’s furlough, we write because the issue raised is one which is capable of repetition, yet would otherwise avoid review because of its sensitivity to time. See Kight v. Dugger, 574 So.2d 1066, 1068 (Fla.1990); Lee v. South Florida Water Management Dist., 805 So.2d 893, 896 (Fla. 2d DCA 2001).

Mitchell was convicted of committing three lewd, lascivious or indecent acts on children during 1994 and 1995, and was sentenced to state prison. Prior to his release from prison, the State sought to commit Mitchell involuntarily pursuant to the Jimmy Ryce Act, § 394.910, et seq., Florida Statutes. In accordance with the Act, the trial court determined that there was probable cause to believe that Mitchell was a sexually violent predator, and he was ordered held in a secure facility pending trial.

Apparently, Mitchell orally moved for a furlough based on a death in his family, and the trial court granted the motion, and ordered that Mitchell be released to the custody of his sister to attend the funeral. So far as we are able to tell, DCF was not notified of the hearing, and learned of the order only upon being served a copy of it. DCF sought prohibition on the theory that there was no legal authority for the trial court’s furlough order, and that the order, therefore, exceeded the trial court’s jurisdiction.

Section 394.915(5), Florida Statutes, reads as follows:

(5) After a court finds probable cause to believe that the person is a sexually violent predator, the person must be held in custody in a secure facility without opportunity for pretrial release or release during the trial proceedings.

This statute clearly prohibits pretrial release of Mitchell. No exceptions are made within it for furlough. Based on the plain reading of the statute, therefore, we conclude that the trial court exceeded its jurisdiction in entering the furlough order.

The issue of the constitutionality of section 394.915(5) was not raised or briefed, either here or in the lower court, and, accordingly, we express no opinion in that regard. As the granting of the stay has rendered the petition for writ of prohibition moot, we decline to issue the writ.

PETITION DENIED AS MOOT.

SHARP, W. and PETERSON, JJ., concur.


author: PLEUS, J.

text:
    PONDELLA HALL FOR HIRE, INC., n/k/a Eight Hundred, Inc., Appellant, v. C.W. (Charlie) CROFT, etc., et al., Appellees.
    Nos. 5D02-1729, 5D02-1730, 5D02-1731.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.
    See also 781 So.2d 1187, 837 So.2d 510.
    Thomas F. Egan of Thomas F. Egan, P.A., Orlando, for Appellant Pondella Hall for Hire, Inc., n/k/a Eight Hundred, Inc.
    Kathryn L. Kasprzak and Jeanelle G. Bronson of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Appellee C.W. Croft.
    Usher L. Brown of Brown, Ward, Salz-man & Weiss, P.A., Orlando, for Appellee Osceola County Investigative Bureau.
    Bruce R. Bogan of Hilyard, Bogan & Palmer, P.A., Orlando, for Appellee City of Kissimmee.
   PLEUS, J.

Pondella Hall for Hire, Inc. n/k/a Eight Hundred Inc. (“Pondella”) appeals orders dismissing with prejudice the City of Kis-simmee (“Kissimmee”), Osceola County Investigative Bureau (“OCIB”) and Osceola County Sheriff C.W. Croft from its suit for replevin and damages. We affirm the dismissal of OCIB with prejudice because OCIB is not a legal entity capable of being sued. See Brown v. 5th Judicial District Drug Task Force, 255 F.3d 475 (8th Cir. 2001); Hervey v. Estes, 65 F.3d 784 (9th Cir.1995) (holding that multi-agency drug task force was “only subject to suit if the parties that created [it] intended to create a separate legal entity”). With regard to Kissimmee and Sheriff Croft, we affirm the dismissals, but reverse the dismissals with prejudice “so that any claims Pondel-la may have may be properly pursued in the appropriate circuit court.” Pondella Hall for Hire, Inc. v. City of St. Cloud, 837 So.2d 510, 511 (Fla. 5th DCA 2003) (“Pondella I”).

The underlying facts are recited in Pondella I. Kissimmee and Sheriff Croft raised various procedural bars to Pondel-la’s suit, including the statute of limitations, laches, and sections 932.703(3) and 705.105, Florida Statutes. None of these would bar Pondella’s replevin action. However, replevin is not the appropriate remedy. See Helmy v. Swigert, 662 So.2d 395 (Fla. 5th DCA 1995). As we held in Pondella I, the criminal court has in rem jurisdiction over the property in question. The proper remedy was to file a motion to return the property in the criminal court.

We note that Pondella filed such a motion initially and appealed the lower court’s failure to return the property. That appeal resulted in our opinion in Eight Hundred, Inc. v. State, 781 So.2d 1187 (Fla. 5th DCA 2001). Based on the parties’ representations at oral argument, it appears that on remand, Pondella’s motion to return its property is still pending in the criminal court. As we stated previously, that court has in rem jurisdiction over the seized property. It has the authority, and more importantly, the obligation to assist the property owner in the recovery of its property. See Brown v. State, 613 So.2d 569 (Fla. 2d DCA 1993). We outlined this procedure in Eight Hundred and the lower court must expeditiously fulfill its responsibility.

We note that the reasons for not returning property to its owner, as recited in Eight Hundred, do not bar the return of the property in this case. All civil and criminal cases involving the seized property were concluded by 1999. Although there is a pending civil RICO case in Orange County, that case does not encompass the property in question here. Nor is the property “unclaimed.” Pondella has made repeated attempts to gain the return of its property since 1999.

In short, the criminal court must determine expeditiously where the property is and whether it should be immediately returned to Pondella. It also has the authority to enforce its orders against any person or entity holding the property through its contempt power because of its in rem jurisdiction over the property. Justice demands that the lower court exercise its jurisdiction over this property and expeditiously resolve the issues associated with it.

Finally, a word about damages. Chapter 932 provides a mechanism for a property owner to obtain damages against the seizing agencies. However, Pondella failed to avail itself of this mechanism during the pendency of the forfeiture case. Thus, it has forfeited its right to damages under Chapter 932. However, if it is determined in the criminal court that some of the property has been lost or destroyed, the criminal court may award Pondella damages for the value of that property upon a proper evidentiary showing.

AFFIRMED IN PART; REVERSED IN PART.

GRIFFIN and TORPY, JJ., concur.

      . Pondella filed suit below against five defendants. Four defendants obtained dismissal orders and the fifth obtained a summary judgment. Pondella filed five separate appeals. We previously decided one of these appeals in Pondella Hall for Hire, Inc. v. City of St. Cloud, 837 So.2d 510 (Fla. 5th DCA 2003). This opinion will decide the remaining three appeals of dismissal orders. The summary judgment appeal remains pending.

      . The second amended civil RICO complaint does not describe with any specificity the property which is the subject of this appeal.


author: COVINGTON, Judge.

text:
    Michael A. WOLFE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2858.
    District Court of Appeal of Florida, Second District.
    April 30, 2003.
   COVINGTON, Judge.

Michael A. Wolfe challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Wolfe failed to present a facially sufficient claim, we affirm the trial court’s order.

In his motion, Wolfe alleged that the three-year minimum mandatory term of imprisonment for aggravated assault on a law enforcement officer was illegally imposed. Wolfe based his claim on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of the minimum mandatory prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution.- In denying the motion, the trial court found that “[a]s of April 29, 2002, the Florida Legislature cured the single subject violation by re-enacting the provisions contained in Chapter 99-188 and providing for retroactive application to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

If Wolfe’s offense occurred within the Taylor window, he is entitled to be resen-tenced under the valid law in effect at the time of the offense. See Green, 839 So.2d 748. However, Wolfe failed to present a facially sufficient claim for relief under rule 3.800(a) since he failed to affirmatively allege that he committed the offense on a date within the Taylor window. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003). Therefore, we affirm the order of the trial court without prejudice to any right Wolfe might have to file a facially sufficient claim. See id.

Affirmed.

WHATLEY and SALCINES, JJ., concur.


author: PER CURIAM.

text:
    Vincent PETER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3349.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Vincent Peter, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Vincent Peter, appeals from an order summarily denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, raising two grounds of ineffective assistance of counsel. We affirm without discussion as to the first ground, but conclude that the trial court erred in summarily denying the second ground.

In his second ground, appellant alleged he advised defense counsel that he was home at the time of the offenses and that prior to trial he provided counsel with the names of several family members who were available to testify to that fact. Four of the named prospective alibi witnesses were present at the trial but counsel could not call them to testify because he had never listed them as witnesses. Since identity was the primary issue at trial, appellant contended that counsel’s failure to present the witnesses in support of his alibi defense was unreasonable. According to appellant, counsel attempted to place the blame on him by contending that appellant’s late decision to testify was the cause for not listing the alibi witnesses. However, it was not necessary for appellant to testify in order for counsel to call the alibi witnesses. Additionally, appellant contended that the way counsel argued to the jury that appellant’s decision to testify was last-minute and against his advice constituted criticism of appellant’s decision before the jury and suggested that the alibi defense was a last-minute fabrication which both discredited his testimony and highlighted the failure to call the other family members to corroborate it.

A claim that counsel failed to call a witness who could establish an alibi states a facially sufficient ground for relief. See Stringer v. State, 757 So.2d 1226 (Fla. 4th DCA 2000). While the state asserted that the proposed witnesses’ testimony would have been cumulative to appellant’s own alibi testimony, the testimony of a witness should not be excluded as cumulative if doing so reduces the case to a credibility .contest between the victim and the defendant. Cf. State v. Wells, 538 So.2d 1292, 1295 (Fla. 2d DCA 1989) (holding that testimony of one of two shooting victims would not be cumulative to the other victim’s account; there were no other witnesses to the incident and this excluded testimony could have helped corroborate the testimony of the victim who in fact was allowed to testify). In this case, appellant’s own testimony was impeached by his admission to five prior felony convictions. Appellant claimed there was no physical evidence connecting him with the crime. The eyewitnesses, who did not know their assailants, did not pick appellant’s photograph out of a lineup until almost two months after the offense. Under the circumstances, appellant’s motion alleged a reasonable probability that counsel’s failure to call alibi witnesses affected the outcome of the proceeding. See Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Accordingly, we affirm in part, reverse in part, and remand for either an eviden-tiary hearing or the attachment of further portions of the records conclusively refuting appellant’s second ground.

FARMER, KLEIN and GROSS, JJ., concur.


author: SILBERMAN, Judge.

text:
    Eric O. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4142.
    District Court of Appeal of Florida, Second District.
    April 30, 2003.
   SILBERMAN, Judge.

Eric O. Williams appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court ruled the motion was facially insufficient. We affirm.

Williams listed four actions by trial counsel that he alleged constituted ineffective assistance of counsel. We agree with the trial court’s ruling that Williams’ sworn motion is facially insufficient because it fails to allege that but for counsel’s errors, he would not have pleaded no contest. See Davis v. State, 697 So.2d 957, 958 (Fla. 2d DCA 1997); Richardson v. State, 829 So.2d 364, 865 (Fla. 1st DCA 2002); Brazeail v. State, 821 So.2d 364, 368 (Fla. 1st DCA 2002).

We affirm without prejudice to Williams’ right to file a facially sufficient rule 3.850 motion. Because the two-year limit for filing rule 3.850 motions expired while this motion was pending, we direct that Williams may file another rule 3.850 motion within thirty days of the date of this court’s mandate, and the trial court shall not deem it untimely or deem it successive based upon the motion Williams filed in this proceeding. See Lewis v. State, 777 So.2d 1083 (Fla. 2d DCA 2001); Lanier v. State, 800 So.2d 242, 243 (Fla. 2d DCA 2001).

Affirmed.

FULMER and KELLY, JJ., concur.


author: WEBSTER, J.

text:
    Christopher G. TIDWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3733.
    District Court of Appeal of Florida, First District.
    May 1, 2003.

      Appellant pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant seeks review of a final order summarily denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking post-conviction relief. Because we conclude that two of the six grounds raised by appellant are facially sufficient and are not conclusively refuted by attachments to the trial court’s order, we reverse as to those grounds, and remand for further proceedings. We affirm without discussion the trial court’s denial of appellant’s remaining four grounds.

All six of the grounds raised by appellant in his motion alleged ineffective assistance of trial counsel. In the first, appellant alleged that he was charged with sexual battery with force likely to cause serious injury, a life felony; that the state offered to permit him to plead to the lesser-included offense of sexual battery without the use of force likely to cause serious injury, a second-degree felony, in return for a sentence of five years in prison, followed by five years’ probation; that his attorney advised him to reject the offer; that his attorney failed to tell him that the offense with which he was charged carried a maximum penalty of life imprisonment; that he would have accepted the state’s offer but for counsel’s misadvice; and that, following trial, he was sentenced to seven years in prison, followed by five years’ probation. Such allegations are facially sufficient to state a claim for ineffective assistance of counsel. See, e.g., Cottle v. State, 733 So.2d 963, 967 (Fla.1999); Lewis v. State, 751 So.2d 715, 717 (Fla. 5th DCA 2000); Garcia v. State, 736 So.2d 89, 89-90 (Fla. 4th DCA 1999). Nothing in either the trial court’s order or the attachments to it conclusively refutes this claim.

The second ground raised by appellant alleged that his attorney failed to preserve an objection to the state’s improper use of peremptory challenges to remove male jurors because the attorney did not renew his objection by moving to strike the jury panel before it was sworn. “Gender-based peremptory challenges are prohibited by both the federal and state constitutions.” Murray v. Haley, 833 So.2d 877, 879 (Fla. 1st DCA 2003) (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), and Abshire v. State, 642 So.2d 542, 544 (Fla.1994)). Failure to preserve an issue for appellate review may be sufficient to constitute ineffective assistance of counsel, provided that the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are met. See, e.g., Jackson v. State, 711 So.2d 1371 (Fla. 4th DCA 1998); Overton v. State, 531 So.2d 1382 (Fla. 1st DCA 1988); Martin v. State, 501 So.2d 1313 (Fla. 1st DCA 1986). Appellant’s allegations are facially sufficient. The trial court’s summary denial was based on the fact that the issue of improper removal of male prospective jurors had been raised on direct appeal to this court, and we affirmed. Our affirmance was without an opinion. As at least one other court has noted in similar circumstances, a per curiam affirmance without opinion on direct appeal “does not establish whether the specific issue was or was not preserved for appeal.” Daniels v. State, 806 So.2d 563, 564 (Fla. 4th DCA 2002). In such a case, a per curiam affir-mance might just as well have been based on the conclusion that the issue was not preserved, as on the conclusion that the issue, though properly preserved, lacked merit.

Because the first and second grounds raised by appellant in his motion are facially sufficient and are not conclusively refuted by either the trial court’s order or the attachments to it, we reverse as to those claims, and remand for further proceedings. If the trial court again concludes that the record conclusively refutes those grounds, it shall attach to its order denying relief the portions of the record which support its decision. Otherwise, it shall hold a hearing. We affirm the summary denial of the other four grounds raised by appellant.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

ALLEN, C.J. and BROWNING, J., CONCUR.


author: STRINGER, Judge.

text:
    R.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3224.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
    James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Affirmed without prejudice to any right R.R. might have to file a petition for writ of habeas corpus in the trial court. See State v. T.G., 800 So.2d 204, 213 (Fla.2001); J.M.B. v. State, 750 So.2d 654, 655 (Fla. 2d DCA 1999).

Affirmed.

ALTENBERND, C.J., and NORTHCUTT, J., Concur.


author: FULMER, Judge.

text:
    Thomas P. McCABE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2608.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
   FULMER, Judge.

Thomas P. McCabe challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

In his motion, McCabe alleged that he pleaded to trafficking in more than 28 but less than 200 grams of cocaine. He further alleged that the three-year mandatory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(l)(b)(l)(a), Florida Statutes (1999), is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found: “As of April 29, 2002, the Florida Legislature has cured the single subject rule violation by re-enacting the provisions originally contained in Chapter 99-188. The re-enactment was retroactive to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

McCabe alleged that he committed the offense of trafficking in cocaine in December 1999, which is within the Taylor window. See Green, 839 So.2d at 750 n. 1. Therefore, McCabe has presented a facially sufficient claim. See Sims, 838 So.2d 658.

We reverse the order of the trial court and remand for further consideration of McCabe’s claim. If McCabe is correct that the trial court imposed a mandatory minimum pursuant to section 893.135(l)(b)(l)(a) where the offense was committed within the Taylor window, the trial court shall resentence him under the 1997 version of that statute. See Green, 839 So.2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded with instructions.

WHATLEY and SALCINES, JJ, Concur.


text:
    Carl Eugene HAYS a/k/a Carl Eugene Hayes, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D01-1398.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
    Dayle M. Green and Victoria L. Bloomer of Escobar, Ramirez, & Associates, P.A., Tampa, for Appellant/Cross-Appellee.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appel-lee/Cross-Appellant.
   SILBERMAN, Judge.

Carl Hays appeals his judgments and sentences for grand theft, filing a false and fraudulent insurance claim, and dealing in stolen property. We vacate his conviction and sentence for filing a false and fraudulent insurance claim on double jeopardy grounds. We affirm the remaining convictions and sentences without discussion of the other points on appeal and cross-appeal.

The State properly concedes that Hays’ convictions for both grand theft, pursuant to section 812.014(2)(b), Florida Statutes (1999), and filing a false and fraudulent insurance claim, pursuant to section 817.234(l)(a), Florida Statutes (1999), violate double jeopardy principles. See La-Roche v. State, 761 So.2d 335 (Fla. 4th DCA 1998); Watson v. State, 655 So.2d 1250 (Fla. 1st DCA 1995). In Watson, the First District pointed out that “[t]he legislature did not intend for a single act of criminal fraud involving the core offense of theft to be prosecuted as separate offenses under both a specific fraud statute and the grand theft statute.” Watson, 655 So.2d at 1251. Here, Hays’ convictions for filing a false and fraudulent insurance claim, and grand theft of the proceeds of that claim violate double jeopardy principles.

Therefore, we reverse Hays’ conviction and sentence for filing a false and fraudulent insurance claim and remand for modification of the judgment. We affirm his convictions and sentences for grand theft and dealing in stolen property.

Affirmed in part, reversed in part, and remanded.

FULMER and WHATLEY, JJ., Concur.


text:
    David MacFARLAND, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1921.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2003.
    David MacFarland, South Bay, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Hudson, 698 So.2d 831 (Fla.1997).

SHARP, W., PALMER and MONACO, JJ., concur.


text:
    Jake GATES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2924.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2003.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W„ PETERSON and PALMER, JJ., concur.


text:
    Samuel R. HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2964.
    District Court of Appeal of Florida, Fifth District.
    May 6, 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 Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Robert R. RAU, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1093.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2003.
    Robert R. Rau, Sneads, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Moore v. State, 820 So.2d 199 (Fla.2002).

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


text:
    Melvin A. POITIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2489.
    District Court of Appeal of Florida, Second District.
    May 7, 2003.
   FULMER, Judge.

Melvin A. Poitier appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

On September 28, 2000, Poitier pleaded no contest to grand theft and dealing in stolen property. His plea agreement reflected negotiated sentences of sixty months in prison. In the transcript of the plea and sentencing hearing, the court, the prosecutor, and Poitier all referred to five-year sentences. The transcript, however, reflects that the trial court orally pronounced concurrent sixteen-month sentences, and the written sentencing documents and the clerk’s court appearance records reflected the imposition of sixteen-month sentences. But the transcript also reflects that immediately after sentence was announced, the prosecutor stated that Poitier’s failure to turn himself in after the brief furlough granted by the trial court “would subject him to statutory maximum and the five years would be off.” Poitier timely reported and began serving his sentences on October 6, 2000.

On October 10, the prosecutor sent a memo to the clerk’s office stating that Poitier’s sentences were “not accurately recorded on the Judgment & Sentence.” The prosecutor’s memo stated that there was a clerical error and requested that amended sentences be prepared to reflect sixty-month sentences. This memo to the clerk showed that a copy was sent to the chief assistant state attorney, but it did not show that copies were sent to either Poitier, defense counsel, or the trial judge. In his motion, Poitier alleged that the clerk’s office “simply whited-out defendant’s orally pronounced sixteen (16) month sentence and imposed a sixty (60) month sentence in its place.” This allegation is supported by copies of written sentencing documents that appear identical to the originals except that they read “60-MONTHS” where they used to read “16 MONTHS.”

Poitier alleged the foregoing facts in his postconviction motion, asking the trial court to correct his sentences to the sixteen-month sentences that were orally pronounced. Poitier raised a number of arguments: (1) the written sentences should conform to the oral pronouncement; (2) the original sentences were not clerical errors; (3) his due process rights were violated by the clerk’s alteration of his sentencing documents; and (4) his double jeopardy rights were violated by the increased sentences. Poitier asserted that if the State found the court’s sentences incorrect, it should have made an objection at sentencing, moved to correct the sentences with proper service of the motion on him, or filed a notice of appeal.

In its court-ordered response, the State asserted that this was a scrivener’s error. The trial court then denied Poitier’s motion, concluding that it was without merit “because the court records reflect that, although the court orally pronounced an incorrect sentence of 16 months, it was corrected by the State Attorney in a timely manner and the Defendant had already signed a plea agreement that reflected his sentence as being 60 months and not 16 months.” In support, the trial court cited Grage v. State, 717 So.2d 547 (Fla. 5th DCA 1998).

We first address the State’s argument that this was a scrivener’s error. In Ashley v. State, 28 Fla. L. Weekly S18, S21 n. 3, — So.2d -,- n. 3, 2003 WL 60564 (Fla. Jan. 9, 2003), the supreme court stated that a scrivener’s error “literally refers to a written error” and is defined as those

clerical or ministerial errors in a criminal case that occur in the written sentence .... The term scrivener’s error refers to a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record but not those errors that are the result of a judicial determination or error.

28 Fla. L. Weekly at S21 n. 3, — So.2d at - n. 3 (quoting Amendments to Florida Rules of Criminal Procedure S. 111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So.2d 1015, 1023 (Fla.2000)). Florida Rule of Criminal Procedure 3.800(b) provides a mechanism for the State to correct a scrivener’s error. Here, because the facts are in dispute, the trial court must hold an evidentiary hearing to determine whether a sixty-month or a sixteen-month sentence was orally imposed. See Sullivan v. State, 538 So.2d 553, 553 (Fla. 1st DCA 1989) (remanding for trial court to clarify sentence when “written plea agreement, the representations by counsel at the plea and sentencing hearings, and the equivocal oral pronouncement of sentence found in the sentencing transcript are apparently at odds with one another”) (citing Robinson v. State, 407 So.2d 1038 (Fla. 1st DCA 1981)); see also Matson v. State, 445 So.2d 1121 (Fla. 5th DCA 1984).

In Troupe v. Rowe, 283 So.2d 857, 859 (Fla.1973), the supreme court explained that it was unconstitutional to increase a sentence after a criminal defendant began serving the sentence. “Jeopardy had attached ... and the sentence which had been imposed could not thereafter be increased ... in violation of defendant’s constitutional guaranty not to be twice placed in jeopardy.” 283 So.2d at 860. This constitutional dictate was reaffirmed in Ashley, where the supreme court held that “[o]nce a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. To do so is a clear violation of the Double Jeopardy Clause, which prohibits multiple punishment for the same offense.” 28 Fla. L. Weekly at S19, — So.2d at -(citations omitted).

Grage, 717 So.2d 547, relied on by the trial court in denying relief, is factually distinguishable even if we were to agree with the dicta expressed in the majority opinion. Grage was sentenced to time served in one case and to ten years as a habitual offender in a second case. 717 So.2d at 548. The State filed a motion to correct the sentences when it realized that the trial court had transposed the case numbers. Grage was present and represented by counsel at the hearing, and defense counsel agreed to correction of the trial court’s error. Id. Grage later filed a postconviction motion alleging a double jeopardy violation, but the motion was denied and the appeal was dismissed for failure to prosecute. Id. Thereafter, Grage attempted to raise this claim in a rule 3.850 motion, and the Fifth District held that the claim was procedurally barred. The majority opinion further opined:

Even if it were not [procedurally barred], however, this was the correction of a technical error that resulted in no net increase in the sentence to the appellant. The sentence was consistent with Grage’s plea agreement. The correction was expressly agreed to by counsel for appellant in appellant’s presence, and the court and the state acted in reliance on that agreement in changing the sentence in both this case and the companion case.

717 So.2d at 548. In a specially concurring opinion, Judge Thompson agreed that the claim was procedurally barred but disagreed with the above dicta, stating that Grage would have been entitled to relief absent the procedural bar because the oral pronouncement controlled.

Here, the state attorney and the clerk unilaterally changed Poitier’s written sentences. This change occurred without any notice to Poitier or his attorney, without their consent, and without any apparent involvement by the trial court. As Judge Thompson noted: “Sentencing is within the sole province of judges; judges are the only participants in the criminal justice system that can impose sentence.” 717 So.2d at 549 (Thompson, J., concurring). Accordingly, we reverse and remand for an evidentiary hearing.

, Reversed and remanded.

WHATLEY and NORTHCUTT, JJ„ Concur.


author: KELLY, Judge.

text:
    Grover Douglas MAGGARD, Appellant, v. Barbara A. MAGGARD, Appellee.
    No. 2D01-4402.
    District Court of Appeal of Florida, Second District.
    May 7, 2003.
    Jose C. Gonzalez of Gonzalez & Weed, P.A., Tampa, for Appellant.
    Barbara A. Maggard, pro se.
   KELLY, Judge.

Grover Douglas Maggard (the husband) challenges the equitable distribution portions of the final judgment of dissolution of marriage. 'He argues that the written final judgment does not conform to the parties’ oral settlement. Specifically, he argues that the trial court erred in awarding Barbara Maggard (the wife) alimony ar-rearage and the cash value of an insurance policy. We affirm the final judgment with the exception of the award to the wife of the cash value of the insurance policy.

Upon a recess in the trial, the parties announced settlement of the case on all outstanding issues. The settlement called for the husband to pay to the wife $60,000 in equitable distribution. Payment of this amount was to be made within sixty days of the date of the hearing. Despite this sixty-day provision, the husband expressed that he could pay $50,000 within ten days and that he would cash out a life insurance policy with a value of $9500 to fulfill the majority of the $60,000 equitable distribution obligation. There was also some discussion concerning $2700 which the husband owed the wife in alimony arrears.

The wife’s counsel prepared a proposed final judgment, which the trial court entered over the husband’s objection. The final judgment required the husband to pay to the wife the cash surrender value of the $9500 life insurance policy, $2700 in alimony arrearage, $60,000 in equitable distribution, and $23,000 of the wife’s attorney’s fees, for a total financial obligation of $95,200. Upon entry of the final judgment, the husband filed a motion for rehearing noting his objections to the final judgment, which the trial court denied.

The husband argues that the final judgment creates a financial obligation that is $12,000 in excess of that contained in the oral agreement. He argues that the $2700 which he owed in alimony arrearage was part of the $60,000 settlement. However, the transcript of the hearing and the husband’s own proposed final judgment refute this. The husband’s proposed final judgment requires the husband to pay $2700 in alimony arrearage in addition to $60,000 in equitable distribution and $23,000 of the wife’s attorney’s fees.

Although the final judgment correctly reflects the inclusion of the $2700, it must still be reversed in part because it erroneously requires the husband to pay $9500, the cash surrender value of the life insurance policy, in addition to the $2700 alimony arrearage and the $60,000 equitable distribution. The parties never contemplated in their settlement agreement that the $9500 would be an additional award to the wife. Rather, it was simply one source of funds the husband intended to expend to help meet the $60,000 obligation.

Accordingly, we reverse that portion of the final judgment which awards the wife $9500. The final judgment is affirmed in all other respects.

Affirmed in part; reversed in part.

WHATLEY and COVINGTON, JJ., Concur.


author: DAVIS, Judge.

text:
    Lance JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3134.
    District Court of Appeal of Florida, Second District.
    May 7, 2003.
   DAVIS, Judge.

Lance Johnson challenges the trial court’s order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Johnson failed to present a facially sufficient claim, we affirm the trial court’s order.

In his motion, Johnson alleged that the three-year mandatory minimum term of imprisonment for trafficking in cocaine was illegally imposed. Johnson based his claim on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of the mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found that “[a]s of April 29, 2002, the Florida Legislature has cured the single subject rule violation by re-enacting the provisions contained in Chapter 99-188. The re-enactment was retroactive to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

If Johnson’s offense occurred within the Taylor window, he is entitled to be resen-tenced under the valid law in effect at the time of the offense. See Green, 839 So.2d 748. However, although Johnson included the date of his arrest in his motion, he failed to present a facially sufficient claim for relief under rule 3.800(a) since he failed to affirmatively allege that he committed the offense on a date within the Taylor window. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003). We therefore affirm the order of the trial court without prejudice to any right Johnson might have to file a facially sufficient claim. See id.

Affirmed.

WHATLEY and SALCINES, JJ., Concur.


text:
    Richard LLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1792.
    District Court of Appeal of Florida, Second District.
    May 7, 2003.
    James Marion Moorman, Public Defender, and Christopher Desrochers, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Richard Lloyd appeals his judgment and sentence for robbery with a firearm. The offense occurred on May 12, 2001. We affirm Mr. Lloyd’s judgment for robbery with a firearm because the evidence was sufficient to submit the issue to a jury. Additionally, we affirm the resulting sentence of thirty years’ imprisonment as a habitual felony offender, with a ten-year minimum.

Affirmed.

ALTENBERND, C.J., and KELLY and CANADY, JJ., Concur.


author: SALCINES, Judge. ALTENBERND, Chief Judge,

text:
    Richard LLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1774.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Richard Lloyd appeals the habitual offender sentence imposed following a jury trial in which he was found guilty of four drug-related charges. He challenges only his habitual offender sentence arguing that the State failed to provide the requisite evidence to support the habitualization. The State concedes error but maintains that, upon remand, it should be given another opportunity to present evidence that Lloyd qualifies as a habitual offender. Be-. cause the record in the present case is insufficient, and Lloyd did not object to the.inadequacy of the documentation at the sentencing, we reverse and remand for resentencing at which the State will be permitted to present the requisite evidence and the trial court will again be allowed to impose a habitual offender sentence if properly supported. See Sanders v. State, 765 So.2d 161 (Fla. 2d DCA 2000).

Reversed and remanded for further proceedings.

KELLY, J., Concurs.

ALTENBERND, C.J., Concurs specially with an opinion in which KELLY, J., Concurs.

ALTENBERND, Chief Judge,

Concurring.

I reluctantly concur in the result in this case because I am bound by precedent. I disagree with two aspects of our ruling and believe that this court should recede from its decision in Sanders v. State, 765 So.2d 161 (Fla. 2d DCA 2000). First, in order to challenge a habitual offender sentence on direct appeal, a defendant should be required to object in the trial court and give both the State and the trial court an opportunity to correct any error in the process. Second, even when such an error exists and is preserved, I believe that the trial court in most circumstances has the power to reimpose any lawful sentence on remand, including a habitual offender sentence.

In this case, Mr. Lloyd was charged with five felonies, including two counts of sale of cocaine, for events occurring in October and November 1998. He was properly noticed for enhanced sentencing in November 2001 and tried by jury on February 20, 2002. The jury found Mr. Lloyd guilty of four of the charges, including the two counts of sale of cocaine.

On the same day as the jury trial, the trial court conducted a sentencing hearing. Initially, Mr. Lloyd wished to present the testimony of his brother at that hearing. The trial court offered to continue the hearing for that purpose and also pointed out that Mr. Lloyd was entitled to a pre-sentence investigation (PSI). Mr. Lloyd’s counsel announced that his client wanted to go forward with sentencing that day and wished to waive the PSI. During the sentencing hearing, the assistant state attorney admitted that his sentencing packet was not complete. The State had copies of older judgments and sentences but not some newer convictions. The State asked for consecutive habitual offender sentences of thirty years’ incarceration on the two counts of sale of cocaine. Mr. Lloyd’s attorney never suggested that his client did not qualify for habitual offender sentencing. Instead he asked for shorter terms of imprisonment and suggested concurrent sentences. In the end, the trial court imposed two consecutive habitual offender terms of fifteen years’ incarceration. At no time did Mr. Lloyd suggest that he did not qualify for this enhanced sentencing.

After the notice of appeal was filed, Mr. Lloyd did not file a motion to correct an unpreserved sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). Instead, his attorney filed a brief arguing that the trial court had not prepared a PSI or obtained certified copies of the relevant sentences. The argument by the public defender is logical because this court in Sanders reversed under somewhat similar circumstances, noting that the issue was unpreserved. Sanders, 765 So.2d at 162.

Without regard to whether fundamental sentencing errors remain subject to correction after Maddox v. State, 760 So.2d 89 (Fla.2000), it seems to me that we are not dealing with a fundamental error in this case. Indeed, we have no reason to believe that Mr. Lloyd was not fully qualified for habitual offender sentencing. He may have chosen to waive a PSI and the formalities of habitual offender sentencing in hopes that his cooperation might result in a sentence shorter than sixty years’ incarceration. If the case law permitted, I would affirm this sentence and permit Mr. Lloyd to challenge it by postconviction motion if it is defective in some manner. Unfortunately, Sanders seems to require that the record in every habitual offender case include all evidence required by the statute even when the defendant has no objection to a streamlined proceeding. Sanders, 765 So.2d at 162.

The majority opinion suggests that the State is entitled to seek a habitual offender sentence on remand only because Mr. Lloyd did not object at the first hearing. I recognize that this court has issued opinions suggesting or holding that a trial court must impose a guidelines sentence on remand if the State failed to prove the requirements for a habitual offender sentence at the first sentencing hearing and the defendant properly objected. See Rivera v. State, 825 So.2d 500 (Fla. 2d DCA 2002); Reynolds v. State, 674 So.2d 180 (Fla. 2d DCA 1996). Although the topic is somewhat complex, as a general proposition, double jeopardy does not apply to sentencing hearings. See Doggett v. State, 584 So.2d 116 (Fla. 1st DCA 1991). So long as double jeopardy is not implicated, I believe that both sides to the controversy are simply entitled to a new sentencing hearing where the necessary evidence is presented and the correct law is applied. See Cameron v. State, 807 So.2d 744 (Fla. 4th DCA 2002); Brown v. State, 701 So.2d 410 (Fla. 1st DCA 1997); Henderson v. State, 651 So.2d 822 (Fla. 4th DCA 1995). See, e.g., Pelham v. State, 815 So.2d 733 (Fla. 2d DCA 2002); Singleton v. State, 760 So.2d 250 (Fla. 2d DCA 2000); Yankovski v. State, 785 So.2d 1283 (Fla. 5th DCA 2001); see also Mann v. State, 453 So.2d 784 (Fla.1984).

There may be some occasions when the State should be prevented from seeking a habitual offender sentence on remand, but those occasions should be the exception and not the rule. As it stands right now, this court has no clear set of rules explaining when the State will or will not have the opportunity to seek a habitual offender sentence on remand from the reversal of a habitual offender sentence. This may not be the appropriate case in which to establish rules, but this court needs to establish them.

      . The record reflects that these statements were made by Mr. Lloyd’s attorney, but it is obvious that this is a scrivener’s error by the court reporter. It is the assistant state attorney asking for the maximum legal sentence.

      . I note that a separate panel of this court is also affirming a thirty-year habitual offender sentence in one of Mr. Lloyd's other cases. Lloyd v. State, 844 So.2d 712 (Fla. 2d DCA 2003). That case involves more recent convictions.


author: ALTENBERND, Chief Judge.

text:
    Willie KEITH, a/k/a Willie Banks, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-1600.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    James Marion Moorman, Public Defender, and Bruno F. DeZayas, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Willie Keith, a/k/a Willie Banks, appeals a judgment convicting him of felon in possession of a firearm and sentencing him to a total of thirty years’ imprisonment as a habitual violent felony offender and a prison releasee reoffender. We affirm the conviction and sentence but address one issue. We hold that the certified copy of Mr. Keith’s prior felony judgment, in the form required by Florida Rule of Criminal Procedure 3.986, was sufficient to prove the prior conviction as an element of the crime and as a factor in imposing an enhanced sentence. Under these circumstances, the requirement in Warren v. State, 74 So.2d 688 (Fla.1954), that the State must submit a “whole record” of a conviction to prove its valid existence is inapplicable.

Mr. Keith argues that he was entitled to a judgment of acquittal because the State could not prove that he was a convicted felon simply by proving identity and submitting into evidence a certified copy of his prior felony judgment and sentence. He argues that the State was required to produce the “whole record” of the prior conviction: the information, his plea, the jurisdiction of the court, the verdict of the jury, and the judgment and sentence. See Warren, 74 So.2d 688 (reversing conviction for “second offense against the beverage laws” because trial court erred in allowing into evidence certified copy of prior conviction to prove first offense without requiring “whole record”); Dowling v. State, 210 So.2d 280 (Fla. 2d DCA 1968) (noting that State met elements necessary to prove prior conviction as required by Warren in conviction for possession of a pistol by convicted felon). Similarly, Mr. Keith argues that his sentence could not be enhanced as a result of this same prior conviction without evidence of the “whole record.”

Both Warren and Dowling, however, were decided before the Florida Supreme Court promulgated the standard forms related to judgments and sentences in Florida Rule of Criminal Procedure 3.986. See In re Florida Rules of Criminal Procedure, 315 So.2d 172 (Fla.1975). A judgment and sentence in compliance with that rule contains the fingerprints of the defendant as well as information about the plea of the accused, the jurisdiction of the court, the verdict of any jury, the crimes for which the defendant stands convicted, the nature of the adjudication, and the sentence. We conclude that Warren's requirement of a “whole record” is satisfied by a certified copy of a judgment and sentence in conformance with rule 3.986. See McCaskill v. State, 564 So.2d 573, 574 (Fla. 1st DCA 1990) (concluding that certified copy of judgment essentially in form set out in rule 3.986 was adequate to prove defendant’s prior felony conviction). Because Mr. Keith’s prior judgment and sentence were in the form required by rule 3.986, the trial court correctly admitted it into evidence, and it was properly relied upon to convict and sentence Mr. Keith.

Affirmed.

SALCINES and KELLY, JJ., concur.

      . In re Florida Rules of Criminal Procedure, 315 So.2d 172, states only: "Appended to this order is Rule of Criminal Procedure 3.986 pertaining to a uniform Judgment and Sentence form to be used by the courts of this state in order to comply with Chapter 75-23, Laws of Florida 1975.” Chapter 75-23 created section 921.24, Florida Statutes (1975) (currently section 921.241, Florida Statutes (2002)), which requires that every felony judgment be in writing, with the fingerprints of the defendant affixed thereon, and that any such judgment is admissible as prima facie evidence that the fingerprints appearing on the judgment are the fingerprints of the defendant against whom the judgment was rendered. There is no other explanation for the promulgation or use of the form judgment either in case law or in any commentary to the rule.

      . We note that rule 3.986 originally created a "judgment and sentence” that was a single document. In re Florida Rules of Criminal Procedure, 315 So.2d 172 (Fla.1975). Since 1981, the rule has treated the two as separate orders. See In re Florida Rules of Criminal Procedure, 408 So.2d 207 (Fla.1981). As such, Warren's emphasis on a "judgment and sentence” may reflect that the sentence was, at that time, an integral part of a judgment. Although we need not decide the issue, it may not be necessary to submit into evidence the prior sentence as well as the judgment when attempting to establish a prior conviction for felon in possession of a firearm. Indeed, a defendant may seek to exclude the sentence imposed on a prior conviction to avoid possible prejudice.


text:
    D.T., Appellant, v. Dr. Bruce HARTER, Superintendent of Schools for Lee County, Appellee.
    No. 2D01-2351.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    Dennis L. Avery of Avery, Whigham & Winesett, P.A., Fort Myers, for Appellant.
    J. Paul Carland, II, Fort Myers, for Appellee.
   FULMER, Judge.

D.T. challenges a final order of the Lee County School Board (“the Board”), which rejects a hearing officer’s conclusion of law and imposes the disciplinary, sanction of reassignment to an alternative learning center. We reverse because the Board’s conclusion that D.T. violated the Lee County Code of Conduct for Students (CCS) was based on an unreasonable interpretation of the word “possession.”

On February 22, 2001, a Lee County Sheriffs Department drug-sniffing dog alerted to a car parked in the Riverdale High School lot. The car was identified as belonging to D.T., who was then called out of class. He unlocked the car and gave permission for it to be searched. Dirt, sand, and a leafy substance were found in the bottom of the passenger door storage compartment. A field test conducted on the leafy substance was positive for marijuana. Deputy Stevens described the quantity of the marijuana as an amount that fit in the center of the palm of his hand.

An administrative school-based hearing was held on February 26, 2001, after which D.T. was suspended for ten days and the assistant principal sent a letter to the superintendent requesting that D.T. either be expelled or alternatively placed. The day after the school-based hearing, D.T. was drug tested and the results were negative for marijuana.

Pursuant to section 280.33(8), Florida Statutes (2000), the superintendent filed a petition seeking the alternative placement of D.T. in the Lee County public school system. A due process hearing was conducted on March 28, 2001, before an impartial hearing officer.

D.T.’s mother testified that she had owned the car that was searched for nine years and, on occasion, her two brothers and sister would use it. She stored items in the door storage compartments. Items removed from the passenger storage compartment shortly after the incident included nail polish, a hair clip, napkins, fast food wrappers, a June 2000 water bill, and a June 2000 Winn-Dixie receipt. All of these items belonged to D.T.’s mother. D.T. first started driving the car in January 2001.

D.T. confirmed that he had been driving the car primarily to school since January 2001. Other members of the family had keys to the car. D.T. did not have any friends in the car. From the moment the substance was found and throughout the process', D.T. repeatedly told the assistant principal that it was not his marijuana and he had never seen it before.

The hearing officer found that D.T. had no knowledge of the presence of the marijuana and no reason to believe that it was likely to be present in the car. The hearing officer concluded that “possession,” as used in the CCS, included “knowledge of the possession.” The hearing officer explained this conclusion:

To find that the student must, at the very least, have knowledge that the contraband exists or have a reasonable belief that it could exist within his or her dominion and control is very reasonable. To find otherwise would apply such a strict standard that no student would ever have a fair hearing because the student would automatically be guilty without hearing the other side.

Because D.T. had no knowledge, the hearing officer recommended that D.T. be returned to Riverdale High School.

The Board adopted the hearing officer’s factual findings but rejected the conclusion of law concerning the definition of possession “because the Hearing Officer has improperly applied a criminal law definition to the term ‘possession.’ ” The Board then reasoned:

The Board has discretion to define the term possession as it is used in the [CCS] and does not define the term to include a requirement that a student have ‘knowledge’ of the substance that they possess.

The Board concluded that D.T. violated the CCS and ordered D.T. reassigned to an alternative learning center as a sanction.

On appeal, D.T. argues that proof of knowledge was necessary to support the Board’s action. The Board argues that its definition of possession, an undefined term in the CCS, is reasonable and therefore should stand.

Courts defer to the expertise of an agency in interpreting its own rules. See State Contracting & Eng’g Corp. v. Dep’t of Transp., 709 So.2d 607, 610 (Fla. 1st DCA 1998). “Generally the construction of a regulation by the agency charged with its enforcement and interpretation is entitled to great deference,- but the court need not defer to the agency’s construction when that construction amounts to an unreasonable interpretation, or is clearly erroneous.” Langston v. Jamerson, 653 So.2d 489, 490 (Fla. 1st DCA 1995) (citing Legal Envtl. Assistance Found., Inc. v. Bd. of County Comm’rs, 642 So.2d 1081, 1083-84 (Fla.1994)).

Section 230.23(6)(d), Florida Statutes (2000), mandates that the Board adopt a code of conduct that shall include:

4. Notice that illegal use, possession, or sale of controlled substances, as defined in chapter 893, ... by any student while such student is upon school property or in attendance at a school function is grounds for disciplinary action by the school and may also result in criminal penalties being imposed.

The notice required by this provision appears in the CCS as follows:

NOTE: Illegal use, possession, or sale of controlled substances, as defined in chapter 893, by any student while on school property or in attendance at a school function is grounds for disciplinary action and may also result in criminal penalties being imposed.

In addition, the zero tolerance policy provision in the CCS states, in relevant part:

In order to comply with the State Board of Education Rule for Zero Tolerance for school-related violent crimes and for the Gun-Free School Act, families and students must understand that certain criminal acts, violent acts and disruptive behavior occurring on School Board property ... must be reported to local law enforcement. These acts include but are not limited to: ... possession or sale of illegal drugs ....

The CCS lists twenty-six offenses which subject a student to disciplinary action and provides that all offenses related to zero tolerance shall be reported to local law enforcement agencies. Offense 7 is “[possession, use, or sale of alcohol, drugs, controlled substances, or counterfeit controlled substances.”

The Board’s interpretation of the term “possession” conflicts with the plain language of the provisions cited above. References in the CCS to the “illegal” possession of drugs and controlled substances and contemplation of not only a school-based sanction but also possible criminal prosecution support the hearing officer’s interpretation of the term possession and render the Board s interpretation unreasonable.

We recognize that “the conduct and discipline of the public schools and public school system is vested primarily in the county boards of public instruction and so long as disciplinary measures imposed by them are within reason, they will not be disturbed.” Satan Fraternity v. Bd. of Pub. Instruction, 156 Fla. 222, 22 So.2d 892 (1945). While we can envision a rational basis for such a regulation as the Board seeks to impose in this case, the CCS, as written, does not explicitly contain such a regulation. Therefore, we do not address whether the Board would violate a student’s rights by implementing a regulation that penalized innocent conduct of possession specifying that no knowledge of the thing possessed was required.

Reversed and remanded.

SALCINES and CANADY, JJ., concur.

      . The Board also cited to federal cases and concluded that "substantive due process does not require that the District prove 'knowledge' of possession in student discipline matters.” The cases relied on by the Board, C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383 (11th Cir.1996), and Hammock ex rel. v. Keys, 93 F.Supp.2d 1222 (S.D.Ala.2000), address students’ civil rights claims brought under 42 U.S.C. § 1983. Our decision herein, however, does not turn on a substantive due process analysis.


text:
    R.D.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2402.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    James Marion Moorman, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

R.D.S. appeals the order requiring him to pay $1635.29 in restitution. We find no merit in his argument on appeal that the trial court erred in imposing restitution without determining his ability to pay. An unemployed or incarcerated delinquent child may be ordered to pay restitution without a showing of present ability to pay. J.A.M. v. State, 601 So.2d 278 (Fla. 1st DCA 1992). The court must only determine what the child may reasonably be expected to earn upon finding suitable employment and base the amount of restitution on those earnings. § 985.231(l)(a), Fla. Stat. (2001); A.J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996); J.M.H. v. State, 589 So.2d 394 (Fla. 1st DCA 1991).

The record reveals that at the May 6, 2002, restitution hearing, R.D.S.’s counsel informed the trial court that while R.D.S. was currently unemployed, he intended to get a job. Based upon this assertion, the trial judge ordered R.D.S. to pay $25 per month commencing on July 1, 2002. We cannot conclude that $25 per month exceeds the amount R.D.S., age seventeen at the time, could reasonably be expected to earn. See § 985.231(l)(a). Accordingly, the restitution imposed by the trial court is affirmed.

We find merit, however, in R.D.S.’s argument that the trial court erred in ordering payment of restitution to begin before he obtained employment. The restitution order provides that “[pjayments are to be made in installments of $25 per month beginning on July 1, 2002.” On remand, the trial court is directed to strike the date specified in the order for commencement of the payments, and order that payments be made once R.D.S. obtains suitable employment that will enable him to comply with the order, for which he must make all reasonable efforts to obtain. See L.J.H. v. State, 627 So.2d 593 (Fla. 2d DCA 1993); J.A.M., 601 So.2d at 279.

Affirmed; remanded with directions.

SALCINES and COVINGTON, JJ„ Concur.


author: NORTHCUTT, Judge.

text:
    Terry Donald BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2246.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

A jury convicted Terry Burton of the robbery of the 801 Truck Stop. He argues the trial court should have instructed the jurors on the permissive, lesser-included offense of resisting a merchant. We agree.

When requested, an instruction on a permissive, lesser-included offense must be given when the information alleges all the elements of the included offense and the evidence at trial supports the instruction. State v. Weller, 590 So.2d 923, 926 (Fla.1991); Epps v. State, 728 So.2d 761, 762 (Fla. 2d DCA 1999). As was the ease in Epps, the trial court here denied the requested instruction for resisting a merchant because it determined that the information did not specifically allege that the victim was an employee of a merchant. The information against Burton stated that he did

unlawfully, by force, violence, assault or putting in fear[,] rob, steal and take away from the person or custody of DONNA LANE OR THE 301 TRUCK STOP certain property; to wit: lawful U.S. currency, the value of said property being three hundred ($300.00) dollars or more, but less that twenty thousand ($20,000.00) dollars, with the intent to permanently or temporarily deprive DONNA LANE OR THE 301 TRUCK STOP of said property.

As we noted in Epps, the definition of a merchant “includes an agent or employee ‘of any premises or apparatus used for retail purchase or sale of any merchandise.’ ” Like Epps, the evidence here showed that the named victim, Ms. Lane, was an employee of the business. But the information in this case went further than the one in Epps; it mentioned the name of the merchant as well. On appeal, the State essentially admits that the information alleged the offense of resisting a merchant, and we agree. See Epps, 728 So.2d at 762.

But the State argues that the trial court’s decision to deny the requested instruction was right for the wrong reason. See Lowery v. State, 766 So.2d 417 (Fla. 4th DCA 2000). It contends that the evidence did not support an element of the offense, i.e., that Burton resisted the employee’s “reasonable effort .. n to recover the property.” § 812.015(6). We disagree. Ms. Lane testified that she came out of a back room and saw Burton taking money from a cash drawer. She asked what he was doing and pushed him away from the drawer. He then shoved her out of the way and returned to the cash drawer. This evidence was sufficient to allow the jurors to decide whether Burton was resisting Lane’s effort to recover the money.

Because the information against Burton alleged all the elements of resisting a merchant, and because the evidence at trial supported the elements of that crime, the trial court should have given the requested instruction on this permissive, lesser-included offense. We reverse and remand for a new trial on the robbery charge. See Epps, 728 So.2d at 762.

DAVIS, J., and GREEN, OLIVER L., Senior Judge, concur.

      . § 812.015(6), Fla. Stal. (2001).


text:
    John BOOREAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5230.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

John Booream appeals his convictions and sentences for trafficking in methamphetamine and possession of paraphernalia. We affirm the convictions without comment. Based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), and Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), we reverse the minimum mandatory sentence imposed for trafficking in methamphetamine and remand for resentencing in accordance with the valid laws in effect at the time Booream committed his offense. As we did in Green, we certify conflict with Carlson v. State, 27 Fla. L. Weekly D2162, - So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002), Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002), and Jones v. State, 27 Fla. L. Weekly D2377, - So.2d -, 2002 WL 31431541 (Fla. 5th DCA Nov.1, 2002), and we note possible conflict with Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002), and Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002).

Affirmed in part; reversed in part; remanded; conflict certified.

FULMER, NORTHCUTT and STRINGER, JJ„ concur.


text:
    Octravis THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2896.
    District Court of Appeal of Florida, Fifth District.
    May 9, 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 Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

In this prosecution for possessing cocaine with intent to sell or deliver, the defendant requested an instruction consistent with Chicone v. State, 684 So.2d 736 (Fla.1996), that the state was required to prove, as an element of the offense, that he knew of the illicit nature of the substance he allegedly possessed. The state argued that in a recent amendment to Chapter 893, Florida Statutes, the legislature found that Chicone and Scott v. State, 808 So.2d 166 (Fla.2002), were contrary to the legislative intent underlying section 893.13, and that knowledge of the illicit nature of a controlled substance was not an element under the statute. As the amendment provides, lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to a prosecution under the statute. See Ch.2002-258, § 1, Laws of Florida, with an effective date of May 13, 2002. The trial court ruled that the amendment controlled in this trial which commenced on July 31, 2002, even though the offense was alleged to have been committed on February 14, 2002.

On appeal, the defendant argues that the law in effect at the time the offense was alleged to have been committed applies and that the trial court reversibly erred in failing to instruct in accordance with Chicane. The state counters that the amendment did not create a new crime but rather merely expresses the intent of the legislature when it passed the original version of the statute so that there is no ex post facto concern.

The district courts of appeal which have considered this issue have held that the May 13, 2002 amendment may not be applied to a charge arising before its effective date. See Blunt v. State, 831 So.2d 770 (Fla. 4th DCA 2002) (possession with intent to deliver/sell); Goodman v. State, 839 So.2d 902 (Fla. 1st DCA 2003) (possession); Norman v. State, 826 So.2d 440 (Fla. 1st DCA 2002) (sale or delivery). In rejecting retroactive application of the amendment, the Norman court explained that Article X, section 9 of the Florida Constitution prohibits applying a subsequently-enacted statute in a way that “affeet[s] prosecution ... for any crime previously committed.” The court cited extensive Florida decisional law that the effect of this provision, which differs from the ex post facto provision contained in Article 1, section 10 of the Florida Constitution, is to give to all criminal legislation a prospective effectiveness so that the “repeal or amendment of any criminal statute does not affect the prosecution or punishment for any crime previously committed.” 826 So.2d at 442.

The defendant denied any awareness of the controlled substance thus disputing the essential element of knowledge. We agree that the amendatory provision cannot be applied retroactively, and thus, the court committed reversible error in failing to instruct on the element of knowledge of the illicit nature of the substance in accordance with Chicane. We reverse and remand for a new trial.

REVERSED and REMANDED.

THOMPSON, C.J., and TORPY, J„ concur.

      . The requested instruction read:
      The Defendant, Octravis Thomas, cannot be convicted of possession of cocaine with intent to sell or deliver unless the State establishes beyond, and to the exclusion of every reasonable doubt, that the Defendant knew that cocaine was inside the cigar tube he allegedly possessed.

      . Chicone held that the offense of possession of a controlled substance included not only knowledge that the substance was in the defendant’s possession, but also knowledge of the illicit nature of the substance. The Chi-cone instruction became part of the standard jury instructions effective July 10, 1997. See Standard Jury Instructions in Criminal Cases, 697 So.2d 84, 87 (Fla.1997). In McMillon v. State, 813 So.2d 56 (Fla.2002), decided before the amendment took effect, the supreme court ruled Chicone applied in a sale or delivery of a controlled substance prosecution. In Scott, the supreme court ruled that failure to give the instruction when warranted could not be harmless error.

      . In creating section 893.101, Florida Statutes, Chapter 2002-258, section 1 provides:
      893.101. Legislative findings and intent.—
      (1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 [808 So.2d 166] (Fla.2002) and Chicone v. State, 684 So.2d 736 (Fla.1996), holding that the state must prove that the defendant knew of the illicit nature of the controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.
      (2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.
      (3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissible presumption in this subsection.

      . Article X, section 9 entitled "Repeal of criminal statutes” states: "Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”

      . Article 1, section 10 entitled “Prohibited laws” provides: "No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.”


author: PALMER, J.

text:
    William RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1475.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2003.

      James B. Gibson, Public Defender and Noel Pelella, Assistant Public Defender, Daytona Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for ap-pellee.
   PALMER, J.

William Russell appeals his convictions which were entered by the trial court after a jury found him guilty of committing the crimes of attempted burglary and petit theft., We affirm.

Russell was charged with committing a burglary of a structure, criminal mischief, and petit theft. The charges arose out of an incident in which Russell burglarized a Taco Bell restaurant, damaged cash registers, and stole a quantity of change. The jury found Russell guilty of attempted burglary, a lesser included offense of the burglary of a structure and petit theft charges.

Russell challenges two ruling of the trial court. First, he argues the trial court erred in denying his motion for a mistrial. The motion was made after a state witness allegedly implied that Russell had previously been arrested on an unrelated charge. However, our review of the trial transcript reveals that this argument is meritless.

During the State’s case-in-chief, Detective Christoff testified as follows:

Q: And how did you determine that William Russell was a suspect in this case?
A: A couple days after I had received the report, I was notified that Sergeant Devlin, who was a regular deputy at the time, had arrested several individuals for an unrelated charge.

Defense counsel objected and moved for a mistrial, arguing that Christoffs statement improperly implied that Russell had been arrested for criminal activity other than that relating to charges in the instant case. However, Christoffs statement never referenced Russell and, therefore, the trial court properly denied the motion. See Harrison v. State, 775 So.2d 423 (Fla. 5th DCA 2001)(holding that deputy’s testimony about his preparation of photographic line-up, which testimony included a reference to a check of defendant’s criminal history, did not impermissibly imply to jury that defendant had a prior criminal history, so as to warrant mistrial, where prosecutor interrupted deputy before deputy could testify as to results of his check of defendant’s criminal history, and question asked by prosecutor was not one which would have normally elicited a statement with regard to any criminal history).

Russell’s second claim of error is that the trial court erred by overruling his “best evidence” objection. Although we agree that the trial court erred in its ruling, we conclude the error was harmless.

During direct examination by the State, Detective Christoff was questioned about a videotape taken from a 7-Eleven store. He testified that the tape showed Russell putting a large amount of change on the counter. Defense counsel objected to the testimony, on the basis of the best evidence rule. The court overruled the objection and allowed the testimony to be admitted.

The best evidence rule is set forth in section 90.952 of Florida Statutes (2000) as follows:

90.952 Requirement of originals.— Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.

§ 90.952, Fla. Stat (2000). Section 90.954 of the Florida Statutes (2000) further explains that:

90.954 Admissibility of other evidence of contents.—The original of a writing, recording, or photograph is not required, except as provided in s. 90.953 [concerning duplicates], and other evidence of its contents is admissible when:
(1) All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.
(2) An original cannot be obtained in this state by any judicial process or procedure.
(3) An original was under the control of the party against whom offered at a time when that party was put on notice by the pleadings or by written notice from the adverse party that the contents of such original would be subject to proof at the hearing, and such original is not produced at the hearing.
(4) The writing, recording, or photograph is not related to a controlling issue.

§ 90.954, Fla. Stat. (2000).

In McKeehan v. State, 838 So.2d 1257 (Fla. 5th DCA 2003), we explained the best evidence rule as follows:

The best evidence rule, as codified by statute, requires that if the original evidence or a statutorily authorized alternative is available, no evidence should be received which is merely “substitution-ary in nature.” Liddon v. Bd. of Pub. Instruction for Jackson County, 128 Fla. 838, 175 So. 806, 808 (1937); Sun Bank of St. Lucie County v. Oliver, 403 So.2d 583, 584 (Fla. 4th DCA 1981). Thus, evidence which indicates that a more original source of information is available should be excluded. Id. In short, unless otherwise excused by the evidence code, the original must be produced unless it is shown to be unavailable for a reason other than the serious fault of the proponent. See Williams v. State, 386 So.2d 538, 540 (Fla.1980); Firestone Serv. Stores, Inc. of Gainesville v. Wynn, 131 Fla. 94, 179 So. 175 (1938).

Id. at 1259-1260.

Here, since Christoff testified as to the content of 7-Eleven videotape instead of admitting the tape into evidence, defense counsel’s best evidence objection should have been sustained. Accordingly, the trial court erred in ruling otherwise. However, the record reveals that such error was harmless.

Under a harmless error analysis, the State must show, beyond a reasonable doubt, that the error complained of did not contribute to the verdict, or, stated alternatively, that there is no reasonable possibility that the error contributed to the conviction. State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Stires v. State, 824 So.2d 943 (Fla. 5th DCA 2002). Application of the rule “requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied and, in addition, an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” DiGuilio, 491 So.2d at 1135. As our supreme court has noted: “[T]he harmless error analysis focuses on the effect of the error on the trier of fact.” Goodwin v. State, 751 So.2d 537(Fla.1999)(quoting State v. Lee, 531 So.2d 133, 137 (Fla.1988)).

During trial, the fact that Russell was in possession of a large amount of change was testified to by four witnesses other than Christoff. As such, Christoffs testimony regarding the 7-Eleven videotape was merely cumulative and did not contribute to the verdict.

AFFIRMED.

PETERSON and TORPY, JJ., concur.