author: SHARP, W., J.

text:
    James BELLAMY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3597.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2002.
    James E. Bellamy, Fort Dix, New Jersey, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Bellamy appeals from the denial of his post-conviction motion claiming ineffective assistance of counsel when he entered a guilty plea in his 1991 and 1996 criminal cases. The trial court treated the pleading as a Florida Rule of Criminal Procedure 3.850 motion and summarily denied it. We affirm.

The 3.850 motion from which this appeal is taken was untimely. Bellamy was sentenced in his 1991 case on January 26, 1993 and in his 1996 case on January 3, 1997. No appeals were taken. Thus, the motion was untimely because it was filed more than two years after the judgments and sentences in the two cases became final and Bellamy fails to allege any of the exceptions to the two year time limit are applicable. See Fla. R.Crim. P. 3.850(b).

Bellamy also seeks to raise for the first time in this court constitutional issues which can be raised any time, pursuant to error coram nobis. It appears that Bellamy currently resides in a New Jersey prison. However, these issues were not raised in the trial court below and therefore we will not consider them here. See Rosado v. State, 693 So.2d 633 (Fla. 5th DCA 1997).

■AFFIRMED.

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


source: Caselaw Access Project

author: SHEVIN, Judge.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Thomas DAVIS, Appellee.
    No. 3D01-3451.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Stay of Mandate Denied Jan. 22, 2003.
    Richard E. Doran, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   SHEVIN, Judge.

State of Florida appeals defendant’s sentence. We vacate the sentence. Upon Davis’s violation of probation for committing a criminal offense, he was sentenced to five years in prison. Although the state had filed a notice of enhancement pursuant to the Prison Releasee Reoffender and Habitual Offender Acts, the state offered Davis a plea to the substantive offense for five years, concurrent and coterminous with the probation violation sentence. Davis, however, rejected the offer and proceeded to trial. During trial, the parties attempted to resolve the case with a plea bargain. Over the state’s objection, Davis accepted the court’s offer of four years in prison concurrent and coterminous with the probation violation sentence in exchange for a guilty plea.

The trial court offered Davis the plea bargain and refused to impose an enhanced sentence based upon the erroneous ruling that the state had waived imposition of the Prison Releasee Reoffender Act (“Act”) when it offered Davis a non-PRR sentence. Contrary to the court’s ruling, the state did not waive sentencing under the Act as Davis’s rejection of the state’s initial plea offer negated any state waiver. “When an accused voluntarily chooses to reject or withdraw from a plea bargain, he retains no right to the rejected sentence.” Mitchell v. State, 521 So.2d 185, 187 (Fla. 4th DCA 1988). See Stephney v. State, 564 So.2d 1246, 1248 (Fla. 3d DCA 1990). The court may not impose a guideline sentence if the state seeks sentencing pursuant to the Act and provides sufficient proof that defendant qualifies as a prison releasee reoffender. See Grant v. State, 770 So.2d 655 (Fla.2000); State v. Cotton, 769 So.2d 345 (Fla.2000). Thus, the court was without discretion to offer Davis a plea bargain to a non-PRR sentence. Accordingly, we vacate the sentence and remand for re-sentencing. On remand, Davis shall be afforded the opportunity to withdraw his plea.

Sentence vacated; and cause remanded with directions.

      . We have jurisdiction as the order is appeal-able. E.g. State v. Miranda, 793 So.2d 1042 (Fla. 3d DCA 2001); State v. Crenshaw, 792 So.2d 582 (Fla. 2d DCA 2001); Stale v. Chamberlain, 744 So.2d 1185 (Fla. 2d DCA 1999). The state’s failure to present evidence that Davis qualified as a prison releasee reoffender is of no moment as the trial court had ruled on the waiver issue and stated its intention to offer Davis a guidelines sentence. See Chamberlain, 744 So.2d at 1186. It is well settled that the law does not require a useless or futile act. See Plaza v. State, 699 So.2d 289 (Fla. 3d DCA 1997); Young v. State, 664 So.2d 1144 (Fla. 4th DCA 1995); Howard v. State, 616 So.2d 484 (Fla. 1st DCA 1993).


author: PER CURIAM.

text:
    James Tyrone ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-853.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Rehearing Denied Jan. 22, 2003.
    James Tyrone Roberts, in proper person.
    Richard E. Doran, Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.
    Before JORGENSON, GODERICH, and RAMIREZ, JJ.
   PER CURIAM.

James Tyrone Roberts appeals the trial court’s denial of his motion to withdraw his plea. We affirm in part and reverse in part.

Roberts was charged with attempted first degree murder of David Francois and Jean Francois. He pled guilty and was sentenced to fifty years, with a 45-year minimum mandatory. At sentencing, the trial court expressed a belief that the law required consecutive sentences.

We find no abuse of discretion in the trial court’s denial of Roberts’ motion to withdraw his guilty plea. However, in Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002), a case decided after the trial court’s ruling, we held that section 775.087(2)(d) required consecutive sentences “only to another separate crime, rather than those involved in a single prosecution.” Id. at 1178. See also Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002). We thus affirm the denial of the motion to withdraw the plea, but reverse for the trial court to impose concurrent minimum mandatory sentences.


author: STONE, J.

text:
    Tanya T. MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4399.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Consuelo Maingot, Assistant Attorney General, Fort Lauderdale, for appellee.
   STONE, J.

Matthews, convicted of assault, appeals on the ground that the prosecutor made prejudicial comments during closing argument. We affirm.

At trial, both Matthews and her sister testified. During closing argument, the prosecutor said the following:

Now, let’s look at what the defense witnesses said.
And one of things you do, you’re gonna do is weigh the evidence and the judge will give you an instruction on weighing the evidence.
It is up to you to determine what evidence is reliable, what evidence you want to believe and what evidence you want to discard. It’s completely up to you.
Ladies and gentlemen, if you believe the defendant’s version and you believe the defendant’s sister, find her not guilty. Find her not guilty.
If her version is logical, rational and makes sense in light of all the evidence, what you heard in court, find her not guilty.
The state would submit that that’s not logical.
That the evidence in this case, that all the evidence begs for a guilty verdict.

The control of comments is within the trial court’s discretion, and an appellate court will not interfere unless an abuse of such discretion is shown. Jackson v. State, 832 So.2d 773 (Fla. 4th DCA 2002). Attorneys have a degree of latitude in fashioning closing argument. Logical inferences may be drawn and counsel is allowed to advance all legitimate arguments. Thomas v. State, 748 So.2d 970, 984 (Fla.1999).

Here, the prosecutor’s comments were not improper. The prosecutor merely submitted to the jury a conclusion that could arguably be drawn from the evidence. According to the prosecutor, there were two different versions of what happened: one version supported by the evidence and a second version put forth by Matthews. The prosecutor essentially argued that Matthews’ version was not supported by the evidence and that the version supported by the evidence warranted a conviction. This was a fair comment and the trial court did not err in overruling Matthews’ objection.

SHAHOOD and GROSS, JJ., concur.


text:
    Juan Carlos ROSALES, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4576.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Carey Haughwout, Public Defender, and Iva K. Oza, Assistant Public Defender, West Palm Beach, for appellant.

      Richard E. Doran, Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   STREITFELD, JEFFREY E., Associate Judge.

Appellant, Juan Carlos Rosales, timely appeals from a sentence imposed after he entered a plea of nolo contendere to the charge of lewd and lascivious conduct on a person under sixteen years of age by a person over the age of eighteen. During the pendency of this appeal, Rosales filed a Motion to Correct Sentencing Error Pursuant to Rule 3.800(b)(2), Fla.R.Crim.P. and Request for Resentencing. A trial judge other than the sentencing judge treated the motion as one to correct an illegal sentence, and denied the motion. We have jurisdiction. Rule 9.140(b)(2)(A)(ii)d, Fla.R.App.P.

Rosales pled no contest pursuant to a plea agreement under which the State agreed to recommend the minimum sentence under the Criminal Punishment Code, 51 months, with the understanding that he faced a maximum sentence of fifteen years. At the sentencing hearing, the State recommended a 51 month sentence consistent with the open plea agreement, after advising the Court that the victim and her family wanted a time-served sentence. Prior to adjudicating Rosales guilty and imposing sentence, the trial judge made the following statement:

Folks, I do want, to, I do want to follow your agreement here today, understanding the basis for it, but I’m afraid I can’t precisely follow that. I will certainly give Mr. Rosales a benefit for the entry of his plea. I am very concerned about the conduct here and, quite frankly, would like to sentence Mr. Rosales to a longer term in custody. However, as I say, I understand the attorneys’ respective positions and the reasons for the negotiation between the parties, but I do need to deviate from it somewhat.

The trial judge then imposed a sentence of 84 months, with 240 days credit for time served, followed by eight years of sex offender probation. After filing his Notice of Appeal, Rosales filed his 3.800(b) motion. The motion alleged that because the conduct giving rise to the charges occurred during the effective dates of the 1995 sentencing guidelines, Rosales should have been sentenced under those guidelines. Applying the guidelines, the sentencing range was from 51 months to a maximum of 85 months. He was, therefore, sentenced at the top of the sentencing range.

The State has conceded at both the trial and appellate levels that Rosales should have been sentenced under the 1995 guidelines. However, the State asserts that, since the sentence imposed still falls within the 1995 guidelines, the error is harmless and Rosales is not entitled to relief. The trial court agreed, treating the motion as one to correct an illegal sentence.

Rosales’ motion was made timely under Rule 3.800(b) and (c). The sentencing judge, therefore, had the discretion to reduce or modify a legal sentence imposed by it. Considering the fact that the sentencing judge believed that he intended to give Rosales a benefit for entering his plea of no contest, the sentencing judge should have been given the opportunity to rule on the motion after being apprised of the sentencing error and the accurate guidelines sentencing range. Knowles v. State, 791 So.2d 534 (Fla. 4th DCA 2001); Prescott v. State, 698 So.2d 602 (Fla. 4th DCA 1997).

For these reasons, the Order Re: Motion to Correct Illegal Sentence is reversed, with instructions to grant a new sentencing hearing before the original sentencing judge.

GUNTHER and FARMER, JJ., concur.


text:
    James M. McMILLAN, Appellant, v. BROWARD COUNTY SCHOOL BOARD, Appellee.
    No. 4D02-404.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Mark F. Kelly of Kelly & McKee, P.A., Tampa, for appellant.
    Carmen Rodriguez of Carmen Rodriguez, P.A., Miami, for appellee.
   PER CURIAM.

James McMillan timely appeals from a final order of the Broward County School Board that rejected the recommended order of the administrative law judge finding that McMillan was not subject to discipline for immorality, misconduct in office and incompetency.

McMillan is a high school baseball coach. The School Board filed an administrative complaint alleging that McMillan was aware of and condoned hazing while supervising the school’s baseball team during a trip to Orlando. After an evidentiary hearing, the administrative law judge made extensive findings of fact and concluded in paragraph forty-two that the evidence did “not establish that [McMillan] knew or had reason to know that hazing was about to occur or that hazing had occurred.” The School Board rejected this finding, characterizing paragraph forty-two as a conclusion of law. The School Board then proceeded to discipline McMillan because the hazing occurred “while under Respondent’s watch” on the trip to Orlando.

We agree with appellant that the quoted portion of paragraph forty-two is a finding of fact. An administrative agency may not reject a hearing officer’s findings of fact, unless it first determines that they were not based on competent, substantial evidence, or that the proceedings before the hearing officer did not comply with the essential requirements of law. See § 120.57(l)(i), Fla. Stat. (2001); Greseth v. Dep’t of Health & Rehabilitative Servs., 573 So.2d 1004, 1006 (Fla. 4th DCA 1991). An “agency’s responsibility to determine if substantial evidence supports the hearing officer’s conclusions cannot be avoided by merely labeling contrary findings as ‘conclusions of law.’ ” Greseth, 573 So.2d at 1006. The School Board was bound by the hearing officer’s finding that the evidence did not establish that McMillan “knew or had reason to know that hazing was about to occur or that hazing had occurred.” There was “competent, substantial evidence” to support the finding. Therefore, McMillan could not be subject to discipline for the hazing itself.

We remand to the agency for further proceedings. If McMillan is subject to any discipline at all, it is based on his response to the situation after the child complainant told him on the Monday evening of the trip about the hazing.

REVERSED AND REMANDED.

STONE, WARNER and GROSS, JJ„ concur.


author: GROSS, J.

text:
    HULL & COMPANY, INC., Appellant, v. Clair THOMAS, The Equitable Financial Company, and Prudential Insurance Company of America, Appellees.
    No. 4D01-972.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.

      Darlene M. Lidondici of Fertig and Gramling, Fort Lauderdale, for appellant.
    Nancy W. Gregoire, and W. Edward McIntyre of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellee Prudential Insurance Company of America.
   GROSS, J.

The main issue in this case is whether a plaintiff may assert a contract implied in law to circumvent a statutory requirement that a person be licensed to perform services as a life insurance agent. We hold that such an implied contract is unavailable under these circumstances.

This case began in 1989. Appellant, Hull & Company, Inc. sued Prudential Insurance Company, Inc. and another defendant. The claim against Prudential was for quantum meruit. The complaint alleged that Hull’s employee provided certain services to Prudential which Prudential used in underwriting and issuing an insurance policy.

Prudential filed a motion for summary judgment, which was denied in 1992. Litigation continued and the case was transferred to a different judge. In 2000, Prudential filed a second motion for summary judgment. The motion relied on facts developed since 1992, as well as on the pretrial stipulation between the parties. The court granted the motion.

Hull first raises a procedural argument. It contends that the second judge was precluded from granting summary judgment based on the same legal theories rejected by the first judge in the earlier motion for summary judgment.

There was no legal error. As a matter of “comity and courtesy,” a judge should hesitate to undo the work of another judge who presided earlier in the case. Tingle v. Dade County Bd. of County Comm’rs, 245 So.2d 76, 78 (Fla.1971). However, prior to final judgment, a successor judge has the power to vacate or modify a predecessor’s interlocutory rulings, such as an order on a motion for summary judgment. See Karn v. Coldwell Banker Residential Real Estate, Inc., 705 So.2d 680, 680 (Fla. 4th DCA 1998); Wasa Int’l Ins. Co. v. Hurtado, 749 So.2d 579, 580 (Fla. 3d DCA 2000); Stepp v. State Farm Fire & Cas. Co., 656 So.2d 494, 497 (Fla. 1st DCA 1995); Collier v. Dade County, 417 So.2d 695, 696 n. 1 (Fla. 3d DCA 1982) (rejecting appellant’s argument that successor judge was precluded from revisiting predecessor’s denial of summary judgment). Here, the facts became more fully developed after the 1992 ruling.

Hull next argues that the order granting summary judgment was wrong on the merits. The trial court found that section 626.794(1), Florida Statutes (1989) precluded any payments by Prudential to Hull. That statute provides:

No life insurer or licensed life agent shall pay directly or indirectly any commission or other valuable consideration to any person for services as a life insurance agent within this state, unless such person holds a currently valid license to act as a life insurance agent as required by the laws of this state; except that a life insurer may pay such commission or other valuable consideration to, and a licensed life insurance agent may share any commission or other valuable consideration with, an incorporated insurance agency in which all employees, stockholders, directors, or officers who solicit, negotiate, or effectuate life insurance contracts are qualified life insurance agents holding currently valid licenses as required by the laws of this state.

§ 626.794(1), Fla. Stat. (1989) (emphasis added). Conceding that it was not licensed, Hull argues that its quantum me-ruit claim is not precluded by the statute.

By its use of the term “quantum meruit,” we understand Hull to have brought a claim for a contract implied in law. As we wrote in Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting Co., 695 So.2d 383, 386 (Fla. 4th DCA 1997):

A contract implied in law, or quasi contract, is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation.
The elements of a cause of action for a quasi contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant' has accepted or retained the benefit conferred and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

(Citations omitted).

Through section 626.794(1), the legislature has determined that a “valid license” is required in order to be entitled to “any commission or other valuable consideration” in return for “services as a life insurance agent.” The statute is broadly phrased; it bars payment “directly or indirectly.” To allow Hull to recover on a contract implied in law is to circumvent the license requirement of the statute. Under the fourth element of the quasi-contract cause of action described above, it is not “inequitable” to preclude Hull’s recovery, because the legislature has imposed a license requirement as a condition of doing the type of business involved in this case.

In Osteen v. Morris, 481 So.2d 1287 (Fla. 5th DCA 1986), the fifth district imposed a similar limitation on quasi-contractual recovery. There, a repair shop customer orally authorized repair work to his car. The repair shop gave the customer two oral estimates for the work and the customer approved. Later, the customer refused to pay. The trial court found that because the repair shop did not comply with the statute requiring repair shops to give written estimates, the repair shop could not rely on a contract implied in fact to recover for its services. In affirming, the fifth district stated:

This consumer protection statute must necessarily be construed to be a limitation on the common law principle of quantum meruit because the recognition of a quasi-contractual obligation by the law in this situation would necessarily circumvent the very dictates of the statute by enabling a motor vehicle repair shop to ignore the statutory requirements of providing a written estimate or obtaining a written waiver.

Id. at 1290 (emphasis in original).

Hull cites to Wood v. Black, 60 So.2d 15 (Fla.1952) and Duncan v. Kasim, Inc., 810 So.2d 968 (Fla. 5th DCA 2002), but they are distinguishable.

In Wood, a building contractor filed suit to foreclose a mechanics’ lien on a residence for the cost of labor, materials, and services he furnished to the homeowner. The trial court dismissed the case, ruling that Wood “could not recover because he had not secured a general contractor’s license from the city.” 60 So.2d at 15. The supreme court reversed, holding that the contractor could pursue his lien claim on a quantum meruit theory. The court observed that the city ordinance requiring general contractors to secure a license “imposed no penalty” for contracting without a license, “nor did it invalidate contracts of those failing to secure such a license.” Id. The ordinance in Wood is unlike section 626.794(1); the statute expressly precludes “any commission or other valuable consideration” to a person performing “services as a life insurance agent” without a “currently valid license.” Wood involved no such express prohibition.

Duncan involved a six-count complaint by a bar manager against a motel property owner. The bar manager was a convicted felon; section 562.13(3)(a), Florida Statutes (2001) prohibited some convicted felons from being employed as a bartender, person in charge, or manager of a liquor lounge. The fifth district held that this statute did not bar some unjust enrichment claims that were independent of the illegal contract. The implied contract in this case did not involve services performed or materials provided outside of “services as a life insurance agent” within the meaning of section 626.794(1).

We agree with Hull that the attorney’s fee award under section 768.79 must be reversed. The 1989 version of section 768.79 applies to this case since the cause of action accrued in 1989. See Metro. Dade County v. Jones Boatyard, Inc., 611 So.2d 512, 513-14 (Fla.1993); Levine v. Harris, 791 So.2d 1175, 1177 (Fla. 4th DCA 2001); Mudano v. St. Paul Fire & Marine Ins. Co., 543 So.2d 876, 877 (Fla. 4th DCA 1989). Under the 1989 statute, Prudential was not entitled to attorney’s fees. See, e.g., Wilson Ins. Servs. v. W. Am. Ins. Co., 608 So.2d 857, 858 (Fla. 4th DCA 1992).

Affirmed in part, reversed in part, and remanded.

STONE, J., and STERN, KENNETH D., Associate Judge, concur.

      . Section 559.905, Florida Statutes (1985).


text:
    David Lee HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3344.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    David Lee Harris, Avon Park, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant filing a facially sufficient motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800 that satisfies the requirements of State v. Mancino, 714 So.2d 429 (Fla.1998) and Thomas v. State, 712 So.2d 848 (Fla. 4th DCA 1998). See Andujar v. State, 808 So.2d 271 (Fla. 2d DCA 2002).

POLEN, C.J., GUNTHER and FARMER, JJ., concur.


text:
    James L. HOLLIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3708.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2003.
    Appellant, pro se.
    Richard E. Doran, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

By way of a timely notice of appeal, the appellant challenges the trial court’s summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant claims that he is entitled to be resen-tenced because he was sentenced pursuant to the 1995 guidelines, which have since been declared to be unconstitutional. See Heggs v. State, 759 So.2d 620 (Fla.2000). However, to have standing to raise a Heggs claim, the appellant’s offense must have occurred “on or after October 1,1995, and before May 24, 1997.” See Trapp v. State, 760 So.2d 924, 928 (Fla.2000)(emphasis added). The appellant’s offense date of May 24, 1997, falls outside this window period. Accordingly, the trial court’s summary denial of the appellant’s motion is affirmed.

AFFIRMED.

BOOTH, WEBSTER and LEWIS, JJ., concur.


text:
    Guinn Martin CHITTY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3731.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2003.

      Appellant, pro se.
    Richard E. Doran, Attorney General; James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion for more jail credit, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand with instructions. The appellant claims that he was arrested on two charges in two separate cases on the same day, and that he was later sentenced on both charges at the same time. Although the appellant has attached record excerpts that show that he was arrested and sentenced on the same days on both charges and that he received disparate jail credit for these two cases, the trial court denied the appellant’s claim as failing to direct the court to portions of the record demonstrating an entitlement to relief. However, the appellant has stated a facially sufficient claim pursuant to rule 3.800(a) and his record attachments satisfy the requirements of Baker v. State, 714 So.2d 1167, 1167 (Fla. 1st DCA 1998). We therefore reverse the trial court’s summary denial and remand for further consideration of the appellant’s claim pursuant to Daniels v. State, 491 So.2d 543, 545 (Fla.1986). If the trial court again denies the appellant’s claim for more jail credit, it must attach record excerpts conclusively establishing that the appellant is not entitled to relief.

REVERSED; REMANDED WITH INSTRUCTIONS.

ERVIN, DAVIS, and BENTON, JJ., concur.


author: COBB, Senior Judge. SHARP, W., J.,

text:
    Willie James OLIVER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-3147.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2003.

      Willie James Oliver, Cocoa, pro se.,
    Charlie Christ, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   COBB, Senior Judge.

Oliver seeks a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). We grant the petition for the reason that the transcript of the sentencing hearing demonstrates that Oliver asked for an appeal at that time and the trial court found Oliver to be indigent for appellate purposes. No appeal was filed, however. Because of this record, we believe Oliver has established his right to a belated appeal without the necessity for an evidentiary hearing.

On the other hand, we do not accept the argument that, in the absence of a definitive record (such as we have in this case), the petition for a belated appeal must be automatically granted unless the State can come forward with an affidavit or statement from the petitioner’s trial counsel denying that any request for an appeal was made by the petitioner outside the scope of the court record. We believe that approach is a misconstruction of the language in State v. Trowell, 739 So.2d 77 (Fla.1999).

Trowell indicates that an evidentiary hearing in the trial court may be ordered by the appellate court where the State has raised “a good faith basis to dispute the defendant’s claims through affidavit or specific contrary allegation.” See Trowell at 81. But what is a good faith basis for such disputes? Does this mean that such contrary allegations can come only from a voluntary statement submitted by defense counsel, who may be a reluctant witness?

The State typically is not privy to the discussions between the convicted criminal and his counsel and must try to ascertain whether there is any dispute about the timely request by communicating with the defense lawyer. If defense counsel cannot be found or will not communicate with the State concerning whether an appeal was timely requested, a rule that the belated appeal must be granted will encourage bogus claims and increase the number of unwarranted appeals. A defense lawyer who could not represent to the State in good faith that his client did make'a timely request could simply duck the issue by ducking the call. It makes more sense in such a circumstance to send it back to have the trial court determine the facts. We do not believe the Trowell court had the situation in mind where the State represents that it has been unable to communicate with defense counsel.

The more reasonable interpretation of the language in Trowell is that an allegation by the State that a good faith effort to contact defense counsel was unsuccessful would imply a dispute and furnish the basis for an evidentiary hearing at which defense counsel would be a compellable witness. It is one thing for an attorney to duck a call, and something quite different to commit perjury at an evidentiary hearing. Absent such an interpretation, Rule 9.141(c) can be used, and misused, as a procedural device to transmute the 30-day limit for the initiation of criminal appeals into a two-year period. Surely, this result could not have been contemplated by Tro-well. If it was, the Florida Supreme Court simply could amend the time requirement in the Florida Rules of Appellate Procedure for the initiation of criminal appeals.

Our opinion in Denson v. State, 710 So.2d 144 (Fla. 5th DCA 1998), is relied upon by the petitioner. Denson, however, preceded Trowell and is distinguishable from it. It determined that Florida Rule of Appellate Procedure 9.140(j), as revised, did not require a sworn affidavit from trial counsel as supporting documentation for a petition for belated appeal; rather, it was simply required that the petition be under oath with facially sufficient allegations by the petitioner. Den-son did not deal with the question of whether, the State can dispute those allegations “in good faith” absent supporting documentation from defense counsel so as to warrant an evidentiary hearing, which is the question raised (although not dis-positive) by the petitioner in the instant case.

Petition for Belated Appeal Granted.

GRIFFIN, J., concurs.

SHARP, W., J., concurring specially in result only.

SHARP, W., J.,

concurring specially in result only.

I agree Oliver is entitled to a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). I write separately to explain why we must reject the state’s request to appoint a commissioner for fact finding purposes.

Oliver alleges in his petition, under oath, that at the end of his sentencing hearing before Judge Griesbaum, he requested that an appeal be filed on his behalf, and that trial counsel failed to file an appeal. Attached to the petition are two documents: (1) a portion of the transcript of the sentencing hearing which demonstrates Oliver stated he wanted to appeal, that his trial counsel asked the court “approved” him (apparently as an indigent), and that the court did so; and (2) an order which, declares Oliver is indigent for appellate purposes and which appoints the public defender to represent him in obtaining a belated appeal.

In response to this petition, the state merely states it tried to contact Oliver’s trial assistant public defender on several occasions but had not yet been able to contact him. Thus, it concludes, the state is “unable to dispute the facts at this juncture.” It urges this court appoint a special commissioner to determine “the facts” and make a recommendation, citing Denson v. State, 710 So.2d 144 (Fla. 5th DCA 1998).

This is an unusual case. However, under the facts and circumstances presented here, we must grant Oliver a belated appeal without the appointment of a special commissioner, because we are bound by existing case law. See State v. Trowell, 739 So.2d 77 (Fla.1999); Denson v. State, 710 So.2d 144 (Fla. 5th DCA 1998).

In Trowell, the supreme court discussed what a defendant must allege, under oath, in order to obtain a belated appeal under prior case law and Florida Rule of Appellate Procedure 9.140(j)(2)(F), the prior version of Rule 9.141(c). The court said:

In conclusion, we hold that the appellaté court should grant a petition seeking a belated appeal if the defendant alleges that a timely request of counsel to file the notice of appeal was made and that counsel failed to do so.

Trowell, 739 So.2d at 81. The petition in this case complies with those simple requirements.

Denson involved a situation similar to the one before us, where the State argued that in the absence of a sworn affidavit by trial counsel or supporting documentation, a hearing was required. That argument was rejected by this court, and later by the Trowell court. Because supporting documentation is rarely available, the Trowell court cautioned that supporting documents and affidavits are not required. A defendant need only allege that he or she made a timely request of counsel to file an appeal and that counsel failed to comply with the request.

On the other hand, it is appropriate to appoint a commissioner to make a report and recommendation concerning “disputed facts” when the entitlement to a belated appeal turns on those “disputed facts.” Both courts, quoting a commentary to the rule, said such references to a commissioner would be in rare cases. Trowell; Den-son.

We concluded in Denson that in order to make the appointment of a commissioner and a hearing appropriate:

[T]he state must dispute the petitioner’s sworn claim, if not by affidavit, at least by specific allegations. In the absence of a disputed fact, the petition mil be granted without an evidentiary hearing. (emphasis added)

Denson, 710 So.2d at 145. Denson rejected reference to a commissioner because the state did not specifically dispute the petitioner’s allegations.

The Trowell court agreed with this conclusion and cited Denson:

If the State raises a good faith basis to dispute the defendant’s claims through affidavit or specific contrary allegations, the appellate court may order an eviden-tiary hearing in the trial court to determine the limited disputed issues of fact, [footnote omitted] See Denson, 710 So.2d at 145 ...

In this case, the state is unable to dispute any fact alleged by Oliver. Instead, it merely responds that it is unable to contact Oliver’s trial counsel. That creates no dispute of a fact which affects Oliver’s right to a belated appeal, one way or the other. Furthermore, there are no “disputed” facts for a commissioner to determine, if one were appointed. A commissioner would have to determine the veracity of Oliver’s allegations in toto, even though not disputed. That is the kind of case in which Trowell and Denson say the appointment is not necessary.

I recognize the state is at a disadvantage in its inability to specifically dispute matters communicated to trial counsel by a defendant, AS WELL AS at the time they were communicated. But its inability to reach trial counsel for comment is not the equivalent of making a specific fact allegation. As contemplated by the drafters of rule 9.141(c), the Florida Supreme Court in Trowell, and this court in Denson, those cases requiring the appointment of a commissioner to resolve disputed FACT issues should be few in number or as the controlling authorities say, “rare.”

      . For example, in the instant case the State alleged that it had "attempted to contact (defense counsel) on several occasions” and that "messages have been left, but (defense counsel) has not yet responded.”


text:
    Dwayne SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2562.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2003.

      James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Herzog v. State, 439 So.2d 1372 (Fla.1983); Conover v. State, 692 So.2d 312 (Fla. 5th DCA 1997).

GRIFFIN, ORFINGER, JJ. and HARRIS, C., Senior Judge, concur.


text:
    Matthew Everette OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1195.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2003.
    Matthew E. Owens, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Greenhalgh v. State, 582 So.2d 107 (Fla. 2d DCA 1991).

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


text:
    A.H.M., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1534.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2003.
    James B. Gibson, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Devoe v. State, 780 So.2d 991 (Fla. 5th DCA 2001).

THOMPSON, C.J., SHARP, W. and ORFINGER, JJ., concur.


text:
    John D. JENSEN, Appellant, v. Denise D. JENSEN, Appellee.
    No. 5D02-2709.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2003.

      Horace Smith, Jr., of Smith, Hood, Perkins, Loucks, Stout & Orfinger, P.A., Day-tona Beach, for Appellant.
    Ronald A. Nour, Ormond Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Doss v. Doss, 627 So.2d 1297, n. 1 (Fla. 5th DCA 1993); Lang v. Lang, 252 So.2d 809, 812 (Fla. 4th DCA 1971); Ganaway v. Henderson, 103 So.2d 693 (Fla. 1st DCA 1958).

PETERSON, PLEUS, JJ., and CO.BB, W., Senior Judge, concur.


author: COPE, J.

text:
    Roger C. BENSON and Patricia Hardy-Smith, individually and as Co-Personal Representatives of the Estate of Noah Benjamin Benson, a minor, Appellants, v. NORWEGIAN CRUISE LINE LIMITED, and Carla Von Benecke, M.D., Appellees.
    No. 3D01-1845.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Colson Hicks Eidson and Marc Cooper and Maureen E. LeFebvre, Coral Gables, for appellants.
    Mase & Gassenheimer and Beverly D. Eisenstadt and Jeffrey E. Foreman, for appellees.
    Before COPE, GERSTEN and FLETCHER, JJ.
   COPE, J.

The plaintiffs in this ease brought a lawsuit alleging medical malpractice aboard a cruise ship, at a time when the ship was 11.7 nautical miles east of the Florida shore. The question presented is whether the medical malpractice incident occurred within Florida’s territorial waters. We conclude that the answer is yes.

I.

The decedent, Noah Benson, was a thirteen-year-old passenger on the M/S Leeward, a cruise ship owned by defendant-appellee Norwegian Cruise Line Limited (“NCL”). Noah was traveling with his mother, plaintiff-appellant Patricia Hardy Smith, as well as another family member. The cruise route was from Miami to Key West and return.

While on board, Noah ate shellfish and had an allergic reaction. Due to swelling in the windpipe he could not breath.

Medical treatment was sought from the ship’s doctor, appellee Carla Von Benecke. She attempted to insert a breathing tube several times. Noah died before intubation could be successfully completed.

The mother and Roger C. Benson, the natural father, brought a wrongful death action against NCL and Dr. Von Benecke, claiming medical malpractice. Dr. Von Benecke moved to dismiss for lack of personal jurisdiction. Dr. Von Benecke is a South African national who was employed on the NCL cruise ship as a contract employee.

The plaintiffs opposed Dr. Benecke’s motion to dismiss, arguing that the claimed incident of medical malpractice oc-eurred while the ship was within Florida’s territorial waters as defined by article II, section 1, of the Florida Constitution. The trial court concluded that the ship was outside of Florida’s territorial waters at the relevant times and granted the motion to dismiss as to Dr. Von Benecke. The plaintiffs have appealed.

II.

Dr. Von Benecke is not a resident of Florida. However, under Florida’s long arm statute, a Florida court may exercise personal jurisdiction over a nonresident where (insofar as pertinent here) the cause of action arises from the defendant’s “[committing a tortious act within this state.” § 48.193(1)(b), Fla. Stat. (1997). Thus if the medical treatment giving rise to the present case occurred within Florida’s territorial boundaries, this is sufficient to establish long arm jurisdiction over Dr. Von Benecke. Godfrey v. Neumann, 373 So.2d 920 (Fla.1979).

We turn then to a consideration of Florida’s boundaries. These are set forth in article II, section 1, of the 1968 Florida Constitution.

The eastern part of the boundary between Florida and Georgia is the St. Mar-ys River. Where that river enters the Atlantic Ocean, the Florida boundary proceeds “due east to the edge of the Gulf Stream or a distance of three geographic miles whichever is the greater distance; thence in a southerly direction along the edge of the Gulf Stream or along a line three geographic miles from the Atlantic coastline ... whichever is greater, to and through the Straits of Florida .... ” Fla. Const. Art. II, § 1 (1968).

According to the expert evidence in this case, the cruise ship was at all relevant times within this boundary. The ship was located 11.7 nautical miles east of Florida’s coastline. The ship had not yet reached the edge of the Gulf Stream, which was 14 nautical miles east of the relevant portion of Florida’s coastline on the day in question. Thus, based on the boundary as stated in the Florida Constitution, the claimed incident of medical malpractice occurred within Florida’s territorial boundaries.

The plaintiffs acknowledge that the United States is a party to the 1982 United Nations Convention on the Law of the Sea. The Convention states, in part, “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” Id. Part II, § 2, art. 3. The United States has adopted a territorial sea of twelve nautical miles. Proclamation No. 5928, 54 Fed.Reg. 777 (Dec. 27, 1988).

For present purposes we assume, but need not now decide, that the effect of the Convention is to limit Florida’s territorial sea to a maximum of twelve nautical miles. If that is so, it would make no difference to this case, because the cruise ship was only 11.7 nautical miles offshore at the relevant times. Using either measure, the claimed incident of medical malpractice occurred within Florida’s territorial boundaries.

Dr. Von Benecke argues, however, that under the federal Submerged Lands Act, Florida is not allowed to claim an Atlantic territorial sea greater than three nautical miles. That is not so.

The Submerged Lands Act was adopted in order to resolve a controversy between the states and the federal government regarding ownership of the ocean bed and the natural resources contained therein. See United States v. States of Louisiana, Texas, Mississippi, Alabama and Florida, 363 U.S. 1, 4-36, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960) (hereafter “United States v. Louisiana ”). For that purpose, the Act provided in general terms for a three-mile seaward boundary for coastal states wherein the states would own and control the sea bed and its resources. 43 U.S.C. §§ 1311, 1312. The present case does not involve any claim of ownership of the ocean bed or the resources contained therein.

As we view the matter, the Submerged Lands Act does not prevent Florida from asserting a territorial sea beyond three miles in the Atlantic, and exercising police powers thereon. See Carnasion v. Paul, 53 So.2d 304 (Fla.1951); see also Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal.4th 557, 59 Cal.Rptr.2d 186, 927 P.2d 296 (1996). The conduct at issue here occurred on the ocean’s surface, not on the ocean bottom.

Dr. Von Benecke argues that it is impermissible to establish a territorial sea boundary as being the western edge of the Gulf Stream, because the Gulf Stream moves, thus creating a variable boundary. That is not a proper ground for objection here. The Florida Constitution already establishes the boundary as the edge of the Gulf Stream, and the wisdom of that decision was for the drafters of the Constitution and the electorate in ratifying it. The boundary must be respected unless overridden by controlling federal law or treaty.

Dr. Von Benecke has argued that the plaintiffs’ position in this case is inconsistent with Darbie v. State, 711 So.2d 1280 (Fla. 3d DCA 1998), but that is not so. The Darbie decision construed a different Florida constitutional provision, article X, section 16, which contains its own boundary definition for enforcing the ban on marine net fishing. Darbie has no application here.

For the stated reasons, we reverse the judgment dismissing Dr. Von Benecke from the lawsuit, and remand for further proceedings.

Reversed and remanded.

      . The lawsuit remains pending in the trial court with respect to NCL.

      . The date of death was February 27, 1998. See Fibreboard Corp. v. Kerness, 625 So.2d 457, 459 (Fla.1993) ("The statute in effect at the time of the acts subjecting one to long-arm jurisdiction is the applicable one.”)

      . The plaintiffs mistakenly state that this boundary definition originated with the Florida Constitution of 1868. The plaintiffs' error is traceable to a misquote in an unpublished federal decision, in which the court inadvertently described the just-quoted language as being found in the Florida Constitution of 1868, rather than 1968. See Shultz v. Florida Keys Dive Center, Inc., No. 97-10047-Civ., Order on Defendants’ Motions for Summary Judgment, at 33-34 (S.D.Fla. July 24, 1998).
      Florida’s constitutional descriptions of the eastern boundary have varied in each constitution from 1868 to the present. See Fla. Const. Art. I (1868); Fla. Const. Art. I (1885); Id. (as amended 1962); Fla. Const. Art. II, § 1 (1968).

      . The Act provided a procedure for a state to claim a greater boundary "if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.” Id. § 1312. In United States v. Louisianna, Florida successfully established a historic boundary within the Gulf of Mexico of three marine leagues, and thus became entitled under the Act to ownership of that submerged land. 363 U.S. at 121-29, 80 S.Ct. 961.

      . Speaking just for himself, the writer of this opinion suggests that in an appropriate case, this court should recede from its decision in Elmlund v. Mottershead, 750 So.2d 736 (Fla. 3d DCA 2000). In that case, a medical malpractice claim was asserted against a ship's physician who was employed on a cruise liner based in Miami. The alleged incident of malpractice occurred on the high seas. Because the alleged incident of malpractice occurred outside of Florida’s territorial waters, the Elmlund court concluded that the doctor could not be deemed to have been doing business in Florida. Id.; see also Rana v. Flynn, 823 So.2d 302 (Fla. 3d DCA 2002).
      The Elmlund panel took much too narrow a view. Where a Florida-based company is in the business of selling cruises which depart from Florida, sail into international waters, and return to Florida, plainly the company is engaged in business in Florida. The same analysis holds true for a ship's physician who, under a contract of employment, sails on such a ship. See § 48.193(1)(a), Fla. Stat. See generally Tidewater Marine, 59 Cal.Rptr.2d 186, 927 P.2d at 300-01.
      Because of Elmlund, it has been necessary for the parties in the present case to devote considerable time and resources to establishing the exact location of the ship, so as to determine whether the alleged tort occurred within Florida's boundaries. Such an inquiry should not be necessary, because entering into an employment agreement to serve as the ship’s doctor on a cruise liner operating out of Miami clearly amounts to engaging in business in Florida for purposes of the long arm statute.


author: SILBERMAN, Judge.

text:
    James STRAITWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3097.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2003.
   SILBERMAN, Judge.

James Straitwell appeals the denial of his motion for postconviction relief. We reverse and remand for further proceedings regarding his claim that counsel was ineffective for not pursuing a voluntary intoxication defense. We affirm without comment the denial of Straitwell’s second claim concerning the evidentiary basis for one of his convictions.

In trial court case number 99-3088F, Straitwell entered a no contest plea to charges of burglary with battery, handling or fondling a child under sixteen in a lewd or lascivious manner, and petit theft. In trial court case number 99-3089F, Strait-well entered a no contest plea to charges of burglary with battery, sexual battery, and petit theft. Straitwell did not appeal from the convictions and sentences entered following his pleas.

In May 2002 Straitwell filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, claiming the ineffective assistance of trial counsel. Straitwell alleged that at the time of the crimes, he had been intoxicated from mixing alcohol with steroids. He alleged that his attorney had this information but failed to pursue a voluntary intoxication defense and that his attorney did not tell him that voluntary intoxication was a legal defense that could have been raised. Straitwell claimed that his attorney advised him that it was not in his best interests to go to trial.

The trial court concluded that the plea transcript refuted Straitwell’s claim and summarily denied the motion. The plea transcript reflects that Straitwell had been asked whether he had discussed possible defenses with his attorney. Straitwell responded: “We’ve discussed, you know, different things like that, like when I was explaining the fact that I was on steroids and doing things like that, but apparently that doesn’t make a difference.” Strait-well otherwise indicated that he was satisfied with his attorney.

Voluntary intoxication is a defense to specific intent crimes such as burglary and petit theft. See Carter v. State, 801 So.2d 113, 114 (Fla. 2d DCA 2001); Bland v. State, 563 So.2d 794, 795 (Fla. 1st DCA 1990); Harris v. State, 415 So.2d 135, 136 (Fla. 5th DCA 1982). However, it is not a defense to general intent crimes such as sexual battery or lewd or lascivious assault upon a child. Killian v. State, 730 So.2d 360, 362-63 (Fla. 2d DCA 1999); Wright v. State, 675 So.2d 1009, 1010 (Fla. 2d DCA 1996).

In order to successfully assert the voluntary intoxication defense, “the defendant must come forward with evidence of intoxication at the time of the offense sufficient to establish that he was unable to form the intent necessary to commit the crime charged.” Linehan v. State, 476 So.2d 1262, 1264 (Fla.1985). For purposes of a postconviction motion for relief,

the defendant must show either that he told his attorney that he was intoxicated at the time of the offense or that he told his attorney of his addiction and there was record evidence that should have alerted his attorney to his possible intoxication at the time of the offense sufficient that the attorney should have investigated the claim.

Boehm v. State, 776 So.2d 332, 333 (Fla. 4th DCA 2001); see also McKinney v. State, 722 So.2d 933, 934 (Fla. 1st DCA 1998).

This court has stated that an evi-dentiary hearing is warranted to determine whether counsel was ineffective for giving incorrect advice to a defendant regarding the viability of the defense of involuntary intoxication. See Kennedy v. State, 633 So.2d 1145, 1145 (Fla. 2d DCA 1994). Similarly, whether counsel was ineffective for failing to discuss and explore with a defendant the possibility of utilizing a voluntary intoxication defense is appropriately determined through an evidentia-ry hearing. See Flores v. State, 662 So.2d 1350, 1351 (Fla. 2d DCA 1995). We have also concluded that a trial court’s finding that counsel made a tactical decision not to pursue the defense usually is inappropriate without an evidentiary hearing. See id.; Kijewski v. State, 831 So.2d 757 (Fla. 4th DCA 2002).

We agree with Straitwell’s argument that the plea transcript did not refute his claim as to the voluntary intoxication defense. Accordingly, we reverse the order summarily denying the motion for postcon-viction relief and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

DAVIS and COVINGTON, JJ„ Concur.

      . We note that effective as of October 1, 1999, voluntary intoxication has been eliminated as a defense. See § 775.051, Fla. Stat. (1999). Because neither Straitwell's motion nor the trial court's order addressed any possible impact that the statute may have on the viability of Straitwell's defense, this issue must be considered on remand.


text:
    Mel FIRSHER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-30.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.

      Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Steven R. Parrish, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and FLETCHER, JJ.
   COPE, J.

Mel Firsher appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm but remand for correction of a scrivener’s error in the judgment.

Defendant-appellant Firsher was convicted of attempted second degree murder with a firearm. His conviction was affirmed on direct appeal. Firsher v. State, 770 So.2d 1267 (Fla. 3d DCA 2000).

The defendant filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The court granted the motion in part and resen-tenced the defendant. The court denied the balance of the Rule 3.850 motion. The defendant has appealed.

The defendant contends that he is entitled to a new trial because the jury was not instructed on attempted manslaughter. The offense of attempted manslaughter is a necessarily lesser included offense (category 1) of attempted second degree murder, the charged offense.

As a general rule, “the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible.” State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978); Roberts v. State, 694 So.2d 825, 826 (Fla. 2d DCA 1997).

There are, however, exceptions to this rule. In an analogous context, the Florida Supreme Court has said that

“it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction.”

Armstrong v. State, 579 So.2d 734, 735 (Fla.1991) (quoting Ray v. State, 403 So.2d 956, 961 (Fla.1981)) (emphasis supplied in Armstrong).

The exception applies here. The transcript indicates that the charge conference was held off the record. When the parties went back on the record, the court stated it was “going to give aggravated battery which [is] the one you have asked for Mr. Mastos [defense counsel] .... ” (Tr. 257, see also Tr. 297). This is sufficient under Armstrong and Ray to waive the category 1 lesser included offense. No personal, on-the-record waiver by the defendant is required in a noncapital case. Armstrong, 579 So.2d at 735 n. 1.

The defendant argues alternatively that his defense counsel was ineffective for failing to request the category 1 lesser included offense, or object to its omission. Again, we disagree.

The purpose of requiring an instruction on the category 1 lesser included offense one step removed from the charged offense is to allow the jury “a fair opportunity to exercise its inherent ‘pardon’ power by returning a verdict of guilty as to the next lower crime.” State v. Abreau, 363 So.2d at 1064. In this case, the jury was given that opportunity.

Second degree murder with a firearm is a first degree felony. The jury was instructed on the permissive lesser included offense of aggravated battery with a firearm, which is a second degree felony. § 784.045(l)(a)2„ Fla. Stat. (1997). The omitted instruction, attempted manslaughter with a firearm, is likewise a second degree felony. Id. §§ 782.07(1), 777.04, 775.087(1). There was no ineffectiveness, because the jury was given the opportunity to grant a jury pardon.

We find no merit in the defendant’s remaining claims on appeal. We therefore affirm the trial court’s order.

The parties agree, however, that there is a scrivener’s error in the judgment. The judgment states that the offense at conviction, attempted second degree murder with a firearm, is a second degree felony. In reality, it is a first degree felony. See §§ 782.04(2), 777.04, 775.087(1), Fla. Stat. (1997). The defendant need not be present.

Affirmed; remanded for correction of judgment.

      . The crime date was January 24, 1999.

      . The defendant's defense at trial was that he shot the store owner by accident during an altercation, and had not intended to shoot the store owner at all. The jury was instructed on justifiable and excusable homicide.


author: GREEN, J. RAMIREZ, J.

text:
    Nathaniel WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-11.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.

      Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General and Michael J. Neimand, Assistant Public Defender, for appellee.
    Before LEVY, GREEN and RAMIREZ, JJ.
   GREEN, J.

Nathaniel Williams appeals his conviction for second degree murder entered pursuant to a jury verdict and raises two issues. He first argues that the trial court committed reversible error by refusing to allow him to introduce evidence regarding the bad character of an eyewitness after the State allegedly bolstered that witness’s character. Additionally, he claims that he was unduly prejudiced by the State’s introduction into evidence of a photograph of the victim in full military dress because it evoked sympathy from the jurors, particularly where this case was tried after the “September 11, 2001” tragedy. We disagree and affirm the conviction.

The victim, Daniel Rhodes, was shot and killed on November 27,1987. Two eyewitnesses identified Williams as the shooter, and a warrant for his arrest was issued. Williams fled and remained a fugitive for thirteen years. In 2000, Williams was arrested in Atlanta, Georgia. He was charged with second degree murder with a deadly weapon.

At trial, both eyewitnesses, Roger Hunt and John Kenzie, verified their out-of-court identifications of Williams as the individual who shot and killed Rhodes. Neither witness could make an in-court identification of Williams during the trial. Additionally, the State presented testimony from Martin Anderson, an acquaintance of Williams, that shortly after the murder, Williams confessed to Anderson that he killed someone. The jury convicted Williams, and he was sentenced to seventeen years in prison.

The State filed a motion in limine prior to trial to preclude defense counsel from cross-examining Roger Hunt about his arrest for aggravated assault. Hunt’s arrest, which occurred some time after the 1987 shooting of Daniel Rhodes, resulted in a withhold of adjudication, and the State argued that defense counsel should be precluded from questioning Hunt about whether he had ever been convicted of a felony. The trial court granted the State’s motion but ruled that defense counsel could reargue this issue if it became relevant.

During Hunt’s testimony, the State established that Hunt had been a member of the police explorer program at the time of the shooting, that he was an ex-security officer, and that at the time of the trial, he was a pastor. Upon cross-examination, defense counsel attempted to question Hunt regarding his expulsion from the police explorers due to his arrest for aggravated assault. The State objected, arguing that because Hunt’s arrest resulted in a withhold of adjudication, defense counsel was not permitted to elicit information about it. Defense counsel claimed that the State had attempted to bolster Hunt’s character during direct examination when it introduced testimony regarding the police explorers and Hunt’s experience as an ex-security guard and a pastor, and that this improper bolstering “opened the door” for defense counsel to raise the arrest for aggravated assault. The trial court sustained the State’s objection and denied defense counsel the right to fully cross examine Hunt about his expulsion from the police explorers.

We agree with the trial judge that impeaching Hunt by means of inquiring into the reason behind his expulsion from the police explorers was improper. A withhold of adjudication does not result in the defendant having been “convicted” of an offense as is required to impeach a witness under Florida Rule of Evidence 90.610. McFadden v. State, 732 So.2d 412, 413 (Fla. 3d DCA 1999). Therefore, it was not proper for defense counsel to raise the aggravated assault charge as a method of impeaching Hunt. Moreover, we do not think that the State “opened the door” for the admission of this otherwise inadmissa-ble evidence.

We do agree, however, that the trial court abused its discretion in not permitting the defense to elicit the fact that Hunt had been expelled from the police explorers. This evidence could and should have been elicited without divulging the reason for the expulsion. However, given all of the other evidence as to William’s guilt, we cannot conclude that this error necessarily deprived Williams of a fair trial to warrant a reversal.

Williams next argues that he was unduly prejudiced when the State introduced a photograph in which the victim was wearing his full military uniform with an American flag in the background. Williams argues that the photograph evoked sympathy from the jurors during a time when American patriotism and support of the American military were at an all-time high. We disagree.

Trial courts have broad discretion in deciding the admissibility of photographic evidence, and this discretion will not be disturbed absent a clear showing of abuse. See Pangburn v. State, 661 So.2d 1182, 1187 (Fla.1995); Vargas v. State, 751 So.2d 665, 666 (Fla. 3d DCA 2000). A photograph’s admissibility is based on its relevancy, not its necessity. Pope v. State, 679 So.2d 710, 713 (Fla.1996). If a photograph is relevant to an issue at trial, either independently or to corroborate other evidence, it is admissible unless the probative value is outweighed by undue prejudice. Allen v. State, 662 So.2d 323, 327 (Fla.1995); Czubak v. State, 570 So.2d 925, 928-29 (Fla.1990); Kirby v. State, 625 So.2d 51, 53 (Fla. 3d DCA 1993).

The photograph of the victim in this case was admitted by the State for identification purposes only. The victim’s military service was never discussed at trial and the State did not attempt to convey that the victim died as a soldier, as Williams contends. Even if the photograph did evoke some sympathy from the jury, it was still not reversible error to admit the picture because it was otherwise relevant to establish identity. See Palmer v. State, 451 So.2d 500, 502 (Fla. 5th DCA 1984)(finding no reversible error in admitting photograph that might inflame the jury’s emotions because photograph was otherwise relevant).

We thus affirm the conviction and sentence in this case.

Affirmed.

LEVY, J., concurs.

RAMIREZ, J.

(concurring).

I concur in our decision to affirm the conviction and sentence. As the majority opinion states, it was error to prevent defense counsel from eliciting the fact that Roger Hunt had been expelled from the Police Explorers. I have serious reservations, however, about the admissibility of the photograph of the victim, Daniel Rhodes, wearing a uniform, standing in front of the United States flag, with short-cropped hair. I believe that its probative value may have been outweighed by its prejudicial effect, considering that this case was tried a month after the tragic events of September 11, 2001.

Defense counsel argued that the photograph was being used to inflame the jury, to which the prosecutor responded unsatisfactorily that the family had brought the photograph. The photograph, which was admitted as an exhibit in the case, was offered to prove Rhodes’ identity because Hunt did not know the name of the victim. When defense counsel suggested that Hunt be shown the autopsy photograph, the prosecution stated that the witness would not be able to recognize the victim. Hunt was never shown the autopsy photograph to confirm the fact that he could not identify Rhodes.

I agree that the trial court has broad discretion to decide on the admissibility of photographic evidence. Defense counsel should have stipulated that the victim was the one without the gun. At that point, it would have been an abuse of discretion to admit the photograph. In the absence of such an offer to stipulate, however, I find no abuse of discretion under the circumstances. At any rate, the photograph did not play a prominent part in the trial.

Trial courts must ensure that criminal defendants receive a fair trial. I believe Williams had a fair trial, but I am concerned that prosecutors may begin to ask families to bring photographs of victims singing in the choir, or posing in their Boy Scout uniforms. Because this case was tried twelve years after the death of the victim, the photograph used may indeed have been the only one available to identify Rhodes. I therefore concur with the majority in affirming the conviction.

      . The police explorers is a part of the Boy Scouts of America. Hunt testified that the program is sponsored by the police to help keep children out of trouble.

      . Williams was tried in late September, 2001, just weeks after the events of September 11, 2001. Williams' argument in this regard certainly rings hollow given the fact that the delay in this proceeding until September 2001 was largely attributable to his status as a fugitive for thirteen years. He is like the proverbial person who kills his parents and then complains about his orphan status.


author: GRIFFIN, J.

text:
    Gillard S. GLOVER, Appellant, v. Carol Wells GLOVER, Appellee.
    No. 5D02-2022.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.
    Catherine G. Swain, of Catherine G. Swain, P.A., Daytona Beach, for Appellant.
    No appearance for Appellee.
   GRIFFIN, J.

Gillard S. Glover [“the father”] appeals the trial court’s non-final order on remand for temporary modification of custody and setting final hearing on permanent modification of custody entered on May 31, 2002. The father contends that the trial court erred by 1) awarding temporary custody of his son, T.G., to Carol Wells Glover [“the mother”] without proof of a substantial change in circumstances; 2) reviewing matters outside of the record; and 3) awarding temporary custody of T.G. when there was no emergency. We affirm.

The Glovers were divorced in 1990. Primary custody of the Glovers’ two children, J.G. and T.G., was initially granted by agreement to the mother. In 1992, the trial court entered a consent order changing primary custody to the father. On January 24, 2001, the mother filed an emergency motion to obtain temporary custody of both children. Also on that day, the father filed a petition for emergency order to restore custody after J.G. ran away to her aunt’s home in Chicago, and requested that the mother show cause why she should not be held in contempt for interfering with the custody arrangement ordered by the court. The trial court took evidence on the disputed issues. The mother testified that T.G. is developm'en-tally delayed, nonverbal and unable to take care of himself. He needs someone to handle all his “life skills” for him, including dressing and feeding him. The mother also testified that the father would leave both J.G. and T.G. in the care of his girlfriend for weeks at a time while he was out of town. Lois Swaggerty testified that she was the children’s caretaker from 1996 through 2000, and that the children would stay with her when the father left town on extended trips.

J.G. testified that T.G.’s motor skills were not developed and that he could not speak. She stated that he basically had to have everything done for him. J.G. further testified that T.G. was “incredibly dependent” on her, and that she preferred for T.G. to live in the same house with her because he was “emotionally dependent” on her as well. She stated that she fed T.G., gave T.G. his bath, changed T.G.’s clothes, watched T.G., washed T.G.’s laundry, and did anything else that T.G. needed done.

The trial court entered an order on May 17, 2001 giving temporary custody of both J.G. and T.G. to the mother provided that she file a supplemental petition for modification of custody. The order made the following findings:

A. The [father] is the lawful custodian of the minor child, [J.G.] and has been since she was five years old. She is now fifteen. The [mother] has scheduled visitation with [J.G.].
B. The child has become alienated from her father and desires to live with her mother in Jacksonville, Florida.
C. The child perceives her father as a stern disciplinarian and is extremely unhappy. She believes she is better able to get along with her mother.
D. As a result of her unhappiness the child evidences irritability and deceitfulness. Recently she ran away to Chicago supposedly without the knowledge of either party.
E. The child has sought contact with adult men and generally acted inappropriately.
F. The child has been living with her mother in Jacksonville and is attending school but appears to be performing below her potential.
G. The child, [J.G.], wishes to attend the Douglas Anderson School of Arts in Jacksonville for the next school year to pursue her musical talents.
H. After carefully considering and weighing all the evidence the Court finds that although the [father] has worked diligently and loves his child it would be in the best interest of the child to be in temporary primary residential custody of the [mother].

The court did not make any findings regarding T.G. The father was granted visitation. He appealed this order to this court on June 14, 2001.

The mother filed a supplemental petition for modification of child custody, alleging a substantial change in circumstances which made it in the best interests of the children to grant her permanent custody. The mother alleged the father was verbally and physically abusive toward J.G.; the father was unable to prevent J.G. from running away; the father forced J.G. to provide primary care for her handicapped brother T.G.; J.G. wanted to live with her mother; J.G. was enrolled to attend a specialized musical training school in Jacksonville where her mother lives; and the father frequently leaves his home for extended periods of time without telling the mother or children where he is going, leaving the children in the custody of his girlfriend or a babysitter.

This court then resolved the father’s appeal of the May 17, 2001 order giving temporary custody of both children to the mother. In Glover v. Glover, 820 So.2d 324 (Fla. 5th DCA 2001), this court affirmed the trial court’s temporary custody order as to J.G., but remanded the matter to the trial court to enter findings of fact on the evidence in the record as to T.G. because it found the order was insufficient in this respect.

Gn May 31, 2002, the trial court entered an order on remand of temporary modification of custody. The order stated:

In response to the DCA’s mandate, the Court has made a thorough review of the record and makes the following findings in favor of awarding temporary custody of the parties’ son, [T.G.] to Respondent [the mother].
First, [T.G.] is developmentally challenged and is thus not able to care for himself. (Transcript 2/9/01 p. 45^16) Next, the record reveals that [T.G.] has a close emotional bond with [J.G.]. (Transcript 3/27/01 p. 63, 149) In addition, [J.G.] has been a caregiver and has assisted in the care for [T.G.] including such matters as helping him get dressed and helping him with meals. (Transcript 3/27/01 p. 18-19, 59-60; Transcript 2/9/01 p. 46-47) Finally, testimony also demonstrates that both [J.G.] and [T.G.] were often left in the care of persons other than their father for substantial periods of time. (Transcript 2/9/01 p. 45)
Furthermore, Florida law has long recognized a preference for keeping siblings together whenever possible and whenever it is in the best interests of the siblings. The Court sees no reason to depart from that preference in this case and finds that it is in [T.G.]’s best interest to be temporarily in the custody of Respondent [the mother] along with [J.G.].

The court held that T.G. would remain in the temporary custody of his mother until a final determination of custody had been made.

The father first contends that the trial court’s change in custody was in error because the mother failed to meet the burden of proving by competent substantial evidence that there was a substantial and material change in circumstances regarding T.G..and that T.G.’s best interest would be promoted by the temporary change in custody. We find the evidence on this issue to be sufficient; in particular, the evidence that the children’s care is often left to others. The remaining claims of error do not warrant discussion.

AFFIRMED.

SHARP, W„ and ORFINGER, JJ., concur.

      . At the time of the first appeal, J.G. was fifteen years-old and T.G., who is developmentally disabled, was thirteen years-old.


author: COVINGTON, Judge.

text:
    Rodney Marsh McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-660.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

Rodney Marsh McDonald was charged with twelve misdemeanors and four felonies. He pleaded guilty to all counts. He was sentenced to time served on the misdemeanors and was given concurrent five-year terms of probation for the felonies. After rendition of the final judgment and sentence, McDonald filed a motion to withdraw the plea, and the trial court denied the motion. McDonald then appealed his judgment and sentence.

We grant a belated appeal of McDonald’s judgment and sentence. We affirm the judgment and sentence but remand for the entry of a written order of probation. Because McDonald’s motion to withdraw the plea was untimely under Florida Rule of Criminal Procedure 3.170(i) and facially insufficient under rule 3.850, we affirm the trial court’s denial of the motion.

Affirmed in part, reversed in part, and remanded.

FULMER and DAVIS, JJ., Concur.


text:
    Gene PROSPERO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1644.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

THOMPSON, C.J., SHARP, W„ and PLEUS, JJ., concur.


text:
    Mark Anthony FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1693.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2003.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

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


text:
    Tavares JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1975.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2003.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

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

THOMPSON, C.J., SHARP, W„ and ORFINGER, JJ., concur.


text:
    Douglas SCHARROO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2124.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

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

THOMPSON, C.J., SHARP, W., and PETERSON, JJ., concur.


text:
    John CASELLA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2246.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2003.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

THOMPSON, C.J., SHARP, W„ and GRIFFIN, JJ., concur.


text:
    Derrick FARIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2367.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2003.
    James B. Gibson, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Maddox v. State, 760 So.2d 89 (Fla.2000); Collins v. State, 766 So.2d 1009 (Fla.2000).

THOMPSON, C.J., SAWAYA, J. and HARRIS, C.M., Senior Judge, concur.


text:
    Richard Alfonso GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2639.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2003.

      James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Collins v. State, 766 So.2d 1009 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000).

SAWAYA, PALMER and ORFINGER, JJ., concur.


author: PER CURIAM. LEVY, Judge

text:
    Yaite GONZALEZ-VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D00-2972.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.

      Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

The appellant’s motion for rehearing is denied. This Court’s opinion filed September 25, 2002, is withdrawn sua sponte, and the following opinion is substituted for clarification.

Yaite Gonzalez-Valdes (“defendant”) appeals her conviction of second degree murder, claiming the trial court erred in denying her motion for mistrial, by permitting the victim’s ex-wife’s testimony as to absence of abuse, and by permitting the prosecution to make improper remarks during closing. We affirm.

The defendant was arrested and charged with first-degree murder after she shot and killed her live-in boyfriend, Jesus Robaina-Viera (“Robaina”). At trial, the defendant testified that she was 21-years old when she met the then 48-year old Robaina. Robaina was visiting relatives in Cuba and picked her up on the side of the road. The two became romantically involved, and Robaina successfully made arrangements to get the defendant into the United States.

According to the defendant, after she started living with Robaina, he began to physically and emotionally abuse her. However, a neighbor who visited the couple weekly testified he never witnessed any abuse or verbal arguments. Similarly, Robaina’s brother testified he never saw Robaina strike the defendant and never saw any signs of abuse. Robaina’s ex-wife testified that she was married to Robaina for 29 years and that he never raised his hand to her and never physically or sexually abused her.

On the evening of the shooting, the defendant claimed Robaina had been drinking heavily, and became verbally and physically abusive. She testified that Robaina called her a whore and threatened to kill her with a shotgun. Because the shotgun would make too much noise, Robaina set it down and went to the kitchen where he kept poisonous syringes. The defendant claimed she believed Robaina was going to kill her, so she picked up the shotgun, found Robaina in the bathroom, and shot him in the back as he was urinating into the toilet. The defendant shot Robaina three more times when he fell to the floor. She then went back to the bedroom, reloaded the shotgun, and 20 minutes later called a neighbor. Shortly thereafter, the defendant was arrested. She was found guilty of second-degree murder with a firearm as a lesser included offense of the first-degree premeditated murder charged in the indictment.

We find no merit in the several issues raised by the defendant in this appeal. First, the trial court did not err in admitting the testimony of Robaina’s ex-wife. The defendant’s theory of defense at trial was self-defense. She claimed that she killed Robaina rather than leave him because she suffered from battered woman’s syndrome. A defense expert witness testified on behalf of the defendant and opined the defendant had battered woman’s syndrome. The expert based her opinion upon meetings with the defendant and the defendant’s statement that Robai-na first abused the defendant by allegedly punching her in the eye. Taking these statements as true, the defense expert further stated that Robaina was a chronic abuser and had been violent before.

On rebuttal, in addition to the testimony of Robaina’s brother who stated Robaina never struck the defendant, the prosecution presented the testimony of Robaina’s ex-wife. The ex-wife testified she was married to Robaina for 29 years and that he never raised his hand to her and never physically or sexually abused her. This testimony had a direct bearing on the validity of the expert’s opinion concerning the defendant’s alleged battered woman’s syndrome defense.

Decisions as to the admissibility of evidence are within the discretion of the trial court and will not be reversed absent a clear showing the trial court abused its discretion. See White v. State, 817 So.2d 799 (Fla.2002); Ray v. State, 755 So.2d 604 (Fla.2000). The ex-wife’s testimony that Robaina had never abused her in their 29 years of marriage was unquestionably relevant since the expert’s opinion was based upon her conclusion that Robaina was a chronic abuser who had been abusive in other relationships. See e.g. Mims v. United States, 375 F.2d 135 (5th Cir.1967)(expert opinion evidence may be rebutted by showing incorrectness or inadequacy of factual assumptions upon which opinion is based); Balfour v. State, 768 So.2d 1227 (Fla. 3d DCA 2000)(lay testimony adequately rebutted expert testimony). We find no abuse of discretion in the admission of this relevant testimony to rebut the factual assumptions upon which the expert’s opinion was based.

Similarly, we find no abuse of discretion in the trial court’s denial of the defendant’s motion for mistrial. Prior to trial, the trial court granted the defendant’s motion in limine to prohibit the prosecution from eliciting testimony which suggested the defendant was a prostitute in Cuba. During trial, the prosecution cross-examined the defendant about why Robaina called her a whore, asking “What did he know that we don’t know?” and “He gave you money?” Defense objections were sustained and subsequently the defendant moved for a mistrial. The trial court denied the motion finding no prejudice, and rebuked the prosecutor.

Thereafter during cross-examination of one of the defendant’s friends, the prosecutor asked “Are you aware of the fact that [the defendant] had several relationships with men?” and “Are you aware of the fact that [the defendant] had a child at a young age?” The trial court again sustained a defense objection finding probative value was outweighed by prejudicial effect, and denied the defendant’s motion for mistrial. The defendant’s renewed motion for mistrial after the defense rested, based on the cumulative effect of the prosecutor’s questions, was also denied.

The prosecution’s closing argument asserted the defendant’s testimony was not credible and focused on the inconsistencies between the defendant’s initial statement to the police and her subsequent trial testimony. The prosecution further pointed out that most of the facts the expert relied upon in order to conclude the defendant had battered woman’s syndrome were not initially mentioned to the police. The defendant only revealed these facts after she sat down and talked to the expert. The trial court again denied defense counsel’s motion for mistrial based on the alleged “character attack,” and the case proceeded to the jury.

A trial court’s ruling on a motion for mistrial is presumed correct and will not be reversed on appeal absent a clear showing of abuse of discretion and that a mistrial was necessary to ensure the defendant a fair trial. See Hamilton v. State, 703 So.2d 1038 (Fla.1997); Cole v. State, 701 So.2d 845, 853 (Fla.1997). The cases cited by the defense are distinguishable by the severity and nature of the comments made, and there is nothing in the record before us which indicates the defendant’s trial was unfair. See Power v. State, 605 So.2d 856 (Fla.1992).

The prosecutor’s questions regarding the defendant’s relationships were not unduly prejudicial, defense counsel objections were sustained before any answers were provided, and the issues raised by these questions involved evidence that was already before the jury. Cf. Gore v. State, 719 So.2d 1197, 1199 (Fla.1998) (collateral crime evidence of defendant’s “reprehensible action of leaving a two-year-old child naked in a burned and abandoned house in thirty-degree weather” had no relevance in trial, was highly prejudicial and presumed harmful); Halsell v. State, 672 So.2d 869 (Fla. 3d DCA 1996) (reference to unrelated prior conviction and lack of other sufficient evidence of guilt required mistrial). Thus we find no abuse of discretion in the trial court’s denial of the defendant’s motion for mistrial and that any potential error was not “so prejudicial as to vitiate the entire trial.” See Hamilton v. State, 703 So.2d at 1041.

Moreover, we note that a careful review of the record clearly reveals that the evidence of guilt against the defendant was overwhelming. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The defendant’s own testimony negated any claim that she was in fact acting in self-defense, and the defendant made no attempt to retreat. See Weiand v. State, 732 So.2d 1044 (Fla.1999)(domestie violence victim has duty to retreat where reasonably possible before using deadly physical force). Instead, she armed herself with a shotgun, sought out the defendant to kill him, and repeatedly shot him in the back while he was standing naked in his bathroom urinating in the toilet.

In conclusion, we find no abuse of discretion in the trial court’s rulings and that the defendant’s right to a fair trial was not violated. See Goodwin v. State, 751 So.2d 537 (Fla.1999). Accordingly, we affirm the defendant’s conviction and sentence below.

Affirmed.

GERSTEN and GODERICH, JJ., concur.

LEVY, Judge

(dissenting).

I respectfully dissent.

Appellant was charged with the first-degree murder of her husband and, at trial, defended on the ground that she suffered from Battered Woman’s Syndrome. After a jury trial, appellant was convicted of second degree murder; Appellant appeals from the trial court’s denial of her motion for mistrial based, in part, on improper prosecutorial questioning relating to appellant’s alleged prostitution in Cuba. After reviewing the Record and the trial transcripts, I feel that the trial court erred in denying appellant’s Motion for Mistrial. As such, I would reverse appellant’s conviction.

The Record reflects that, prior to trial, appellant filed, and the court granted, a Motion in Limine to prohibit the prosecutor, and all State witnesses, from commenting or eliciting testimony that the appellant was a prostitute in Cuba and that the victim was not abusive in prior relationships. Nevertheless, during cross-examination of the appellant, the prosecutor engaged in the following line of questioning.

Q: Now, at that time, he called you a name after you fired the gun. Correct?
A. Yes.
Q. What did he call you?
A. Whore.
Q. He called you whore all the time.
A. Yes.
Q. And three or four times a day, he called you by that name. What did he know about you that we don’t know?

(emphasis added). After defense objection, which was sustained by the court, the prosecutor followed with “He gave you money?” Defense counsel moved for a mistrial which was denied by the trial court who recognized that the line of questioning was improper but, nevertheless, found that the defense was not prejudiced.

Subsequently, during cross-examination of a defense witness, a childhood friend of the appellant’s, the prosecutor engaged in the following line of questioning:

Q: And you were her [appellant’s] neighbor in Cuba.
A: Yes.
Q: And you are aware of the fact that she’s had several relationships with men.
{defense counsel}: Objection.
The Court: Sustained.
Q: You are aware of the fact that she had a child at a young age.
{defense counsel} Judge, Objection.
The Court: Sustained. Sidebar.

The defense again moved for mistrial which was, again, denied.

Section 90.402, Florida Statutes, provides that evidence must be relevant to be admissible. Moreover, section 90.403, Florida Statutes, provides that relevant evidence may nevertheless be inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice.” § 90.403, Fla. Stat. In the instant case, appellant is on trial for the murder of her husband. Her defense is that she suffered from Battered Woman’s Syndrome. Any evidence that appellant was a prostitute in Cuba or that appellant gave birth to a child at a young age is irrelevant to both the State’s case and appellant’s defense. Consequently, this evidence would fail to meet the relevancy requirements of admissible evidence.

Even if the evidence could remotely be considered “relevant,” introduction of this type of evidence into the case would be barred by the balancing requirements of section 90.403, Florida Statutes. See Gore v. State, 719 So.2d 1197 (Fla.1998); see also Dukes v. State, 356 So.2d 873 (Fla. 4th DCA 1978). In a case such as the one before the Court, where the defense is that the defendant suffered from Battered Woman’s Syndrome, and the only witnesses to the relationship include the defendant charged with the crime and the dead victim, the defendant’s credibility is an integral part of the case. Evidence that the appellant may have been a prostitute in Cuba or gave birth to a child at a young age is neither probative of the crime for which she is charged, nor relevant to appellant’s defense. Consequently, the only purpose served by the introduction of such evidence is to improperly attack appellant’s character and credibility. The probative value of such evidence, if any, is outweighed by the inherent prejudicial effect that such evidence may have on the jury and should, therefore, be precluded. See Gore, 719 So.2d at 1199; see also Dukes v. State, 356 So.2d at 875-76. In the instant case, the trial court, in granting appellant’s Motion in Limine, implicitly ruled that the evidence was either irrelevant, or, if relevant, that the prejudicial effect greatly outweighed the probative value. Consequently, denial of appellant’s motion for mistrial, in light of the court’s pre-trial ruling, was error.

In Gore v. State, 719 So.2d 1197 (Fla.1998) the Supreme Court of Florida reversed a defendant’s conviction, in part, because the State engaged in impermissible and improper questioning of the defendant. In Gore, the trial court limited the State’s introduction of Williams-rvle evidence, specifically precluding the State from introducing the details of a previous similar crime. See Gore, 719 So.2d at 1198. Nevertheless, during cross-examination of the defendant, the State, without seeking modification of the court’s ruling, delved into the very matter which the trial court precluded in the pre-trial motion. Defense counsel objected. The trial court overruled the objection. See Gore, 719 So.2d at 1198-99. On appeal, the Supreme Court noted its concern with the State’s “blatant disregard of the trial court’s specific ruling” and found that the prejudicial effect of the evidence greatly outweighed any probative value. See Gore, 719 So.2d at 1199.

Similarly, in Halsell v. State, 672 So.2d 869 (Fla. 3rd DCA 1996), this Court reversed a defendant’s conviction and granted a new trial where the State “crossed into forbidden territory.” Halsell, 672 So.2d at 870. In Halsell, the trial court, like in the instant ease, granted the defendant’s motion in limine precluding the introduction of a prior action. Like in the instant case, the State delved into the precluded area. After defense objection, the trial court instructed the jury to rely on its recollection of the evidence. The defense then moved for mistrial which, as in the instant case, was denied. On appeal, this Court reversed noting that

[o]nce the trial court prohibited reference to appellant’s prior conviction, it was then responsible for ensuring the parties complied with its rule. The trial court’s failure to grant a mistrial in light of the prosecutor’s improper comment in violation of its ruling clearly constitutes reversible error, particularly in a case without overwhelming evidence.

Halsell, 672 So.2d at 870. In the instant case, the trial court granted appellant’s Motion in Limine to preclude the specific evidence that the State alluded to during its cross-examination of the appellant and then raised again during the testimony of a defense witness. The State, not once but twice, in complete disregard of the pre-trial ruling, hinted at the fact that the appellant was, or may have been, a prostitute in Cuba. This line of questioning was improper, in contravention of the trial court’s pre-trial Order, and prejudicial to appellant, thereby precluding her right to a fair trial.

Accordingly, I would reverse appellant’s conviction and remand for a fair trial wherein the appellant is only tried for the crime with which she is charged.

      . Because it is difficult to predict whether the door might be open to evidence relating to the victim’s non-abusive prior relationships in a new trial, or what may happen in a new trial with respect to appellant's other points on appeal, I find it unnecessary to address the remaining issues on appeal and only address the error relating to the improper questioning.