author: ALTENBERND, Chief Judge.

text:
    John A. ACOSTA, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1711.
    District Court of Appeal of Florida, Second District.
    June 30, 2004.
    Rehearing Denied Aug. 6, 2004.

      Ellis S. Rubin and Robert I. Barrar of The Law Offices of Ellis S. Rubin and Robert I. Barrar, Miami, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

John A. Acosta appeals his judgment for manslaughter and his sentence of 9.25 years in prison, followed by 3 years’ probation. We affirm. Mr. Acosta raises five issues on appeal. We elect to discuss only his claim that he was entitled to a judgment of acquittal. Although the evidence suggests that John Acosta killed his victim with the first punch during an after-school fight among high school students, in light of all the circumstances, we conclude that the evidence permitted the jury to convict him of manslaughter.

John Acosta, seventeen, and the victim, James Brier, sixteen, were both students at Manatee High School. They went to a grocery store parking lot immediately after school on Thursday, October 18, 2001, to settle a disagreement. Like many high school fights, the disagreement that provoked this fight appears to be more of an excuse to fight than a rational reason for two people to resort to physical violence. James Brier had done something embarrassing at a party several weeks earlier. John Acosta had not been at the party and apparently did not even know James Brier, but he was one of many students who teased James Brier about the incident.

On the day of the fight, two carloads of students exchanged words while leaving the school parking lot. One car included John Acosta while the other included James Brier. The evidence at trial was conflicting concerning the details of who challenged whom to fight; nevertheless, after the two groups exchanged words, they discussed meeting in the grocery store parking lot to fight. John Acosta said, “Do you really want to fight?” James Brier responded, “Tes.”

A sizable group of students gathered at the grocery store parking lot. John Acosta went to the parking lot as a passenger in the car of a friend. James Brier came with a group of friends in a truck. Other students came to watch the spectacle. After the teenagers exited their cars, a shouting match began. Apparently, other students began fighting before John Acosta hit James Brier. While the other fight was ongoing, James Brier was yelling at a boy named Snyder. Snyder was yelling back at James Brier. While Snyder and James Brier argued, John Acosta stood silently behind Snyder with his fists clenched. Suddenly, John Acosta threw a punch that hit James Brier in the face. The evidence indicates that James Brier was distracted at that moment and was unprepared to defend himself. James Brier crumpled to the ground and did not fight back. One witness testified that James Brier’s eyes immediately began fluttering. John Acosta continued to hit James Brier in the face while he was on the ground. Several witnesses told John Acosta to get off James Brier. Another witness testified that, before he released James Brier, John Acosta said, “I could have killed you.” At this point, James Brier’s body was limp and he was bleeding.

A postal worker on his lunch hour also happened to witness this fight. He testF fied that while eating his lunch under a nearby tree, he observed a dozen or more teenagers suddenly converge on the grocery store parking lot. He witnessed two “entourages” of boys moving toward one another, when a “fist shot out.... One kid stepped into the other and punched him in the face.” He described the person who got punched as having his hands down and that “he just got caught[,] I think.” The person who got punched “dropped like a rock” after the punch. Soon thereafter, the cars sped away.

When the fight ended, James Brier’s friends carried him to the truck. The group then decided to take him to Manatee Memorial Hospital. Before reaching the hospital, they flagged down a police officer. The officer noticed a bloody, foamy froth coming from Mr. Brier’s mouth. The officer realized the situation was serious and took pictures of Mr. Brier in the back of the truck. Mr. Brier was then rushed to the hospital, where he was pronounced dead.

The chief medical examiner for Manatee County testified that James Brier died as a result of a single blow to the right eye. This blow twisted his neck, creating a tear to the right vertebral artery. This tear caused blood to flood into James Brier’s brain and spinal column. As a result of the vertebral artery hemorrhage and the rapid change of pressure in the central nervous system, the medical examiner explained that James Brier would not have remained standing for more than three seconds. The medical examiner testified that, although this type of death is rare, it is medically well documented.

As a result of this fight, the State initially filed juvenile delinquency proceedings against John Acosta. In November 2001, however, shortly before his eighteenth birthday, these filings were replaced with an information alleging manslaughter by act or culpable negligence. John Acosta was first tried in August 2002, but the jury in that case could not reach a verdict. At a second trial in February 2003, the jury convicted him as charged.

John Acosta argues that his motion for judgment of acquittal should have been granted because the evidence was insufficient to support his conviction for manslaughter. He argues that the death was the result of a single blow, and most likely the first blow, of a fistfight between teenagers and that such an event cannot support a conviction for manslaughter.

It is true that courts have sometimes ruled that manslaughter is not established by a death resulting from a brief disagreement between two people. These cases tend to be very fact specific and involve shoving matches rather than fistfights. For example, in Aiken v. State, 425 So.2d 641 (Fla. 3d DCA 1983), the defendant was a homeless man searching for food in a dumpster. He was confronted by a man who did not want vagrants in his neighborhood. Mr. Aiken pushed the man backward with a milk crate that he was planning to use as a step to enter the dumpster. The man lost his balance, fell backward, and hit his head on the pavement. The man died from the resulting skull fracture. The Third District ruled that this death was “excusable homicide” as a matter of law because no dangerous weapon was involved and the act was a matter of sudden combat not done in a cruel or unusual manner. Aiken, 425 So.2d at 643. Likewise, a shoving match that resulted in a heart attack has been declared insufficient to establish manslaughter. See Tipton v. State, 97 So.2d 277 (Fla.1957).

It is also true that merely participating in a drag race has been declared insufficient to convict a person of the death of another driver in the drag race, where the defendant’s operation of his motor vehicle did not cause the accident. See Velazquez v. State, 561 So.2d 347 (Fla. 3d DCA 1990).

In this case, the evidence supported a jury determination that John Acosta started and finished the fight by forcefully hitting James Brier in the face. The jury could conclude that John Acosta hit James Brier when he was totally unprepared to defend himself. The participants had contemplated this fight for more than a few moments before it began. The jury was not compelled to find that the homicide was sudden combat or excusable. Martin v. State, 342 So.2d 501, 502 (Fla.1977); Weir v. State, 777 So.2d 1073 (Fla. 4th DCA 2001).

John Acosta was a bright young man, undoubtedly headed to college and a good future, when he chose to transform a verbal altercation into a fistfight. Thousands of teenage boys before him have engaged in similar, senseless fights without such tragic endings. On one hand, it seems such a waste of a human life to incarcerate him for nearly a decade at this critical time in his life. On the other hand, James Brier is dead. His family and loved ones will not have the opportunity to have him come home to them after a decade.

Sometimes we must remind ourselves that the primary purpose of sentencing is to punish the offender. See § 921.001(4)(a)(2), Fla. Stat. (2001). In that regard, the legislature has chosen to award 120 victim injury points for death in a manslaughter case, which virtually assures a defendant that he or she will spend approximately ten years in prison for the offense. See § 921.0024, Fla. Stat. (2001).

Likewise, criminal law was established to recognize the human desire for vengeance and to satisfy that craving in a way that helps preserve an orderly society. Ás best said by Oliver Wendell Holmes:

The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution.

Oliver Wendell Holmes, The Common Law 36 (Mark DeWolfe Howe ed., Harvard Univ. Press 1963) (1881).

The students of Manatee High School will never benefit from the death of James Brier or the imprisonment of John Acosta. However, perhaps the loss suffered by these two teenagers and their loved ones will serve as a reminder to other teenagers that fistfights are not an acceptable extracurricular activity in high school and that the consequences of those fights can be permanent and long-lasting.

Affirmed.

SILBERMAN and CANADY, JJ„ Concur.

      . Indeed, there is at least one other recent case in which a vertebral artery hemorrhage resulted in a homicide conviction. See Miller v. State, 275 Ga. 730, 571 S.E.2d 788 (2002), cert. denied, 538 U.S. 1004, 123 S.Ct. 1911, 155 L.Ed.2d 835 (2003).


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Council A. BROWN, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 2D03-3753.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.
    Rehearing Denied Aug. 9, 2004.
    Hank B. Campbell and Jack P. James, III, of GrayRobinson, P.A., Lakeland, for Appellant Brown.
    Pamela S. Leslie and Marianne A. Trus-sell of the Department of Transportation, Tallahassee, for Appellee.
   WHATLEY, Judge.

Council A. Brown appeals the final judgment awarding him compensation for the whole taking of his property in an eminent domain action initiated by the Department of Transportation (DOT) on March 13, 2000. We reverse.

The DOT sought to condemn Brown’s property for the Lakeland In-Town Bypass Project. Brown had leased the subject property to various automobile dealerships over the years. Two appraisers engaged by the DOT for this project tracked the rental history of Brown’s property, and they both noted that Brown’s rental income from the property had declined from $2500 a month in the mid-1980s to $1500 per month for a lease that terminated in 1999. Both appraisers noted in their reports that Brown said he believed the decline in rental income was due to the impending road project, i.e., condemnation blight. They also noted that the lessee of the property from 1989 to early 1994 stated that the probable taking of the property was a major reason she did not renew her lease with Brown. She advised the appraisers that her lease contained a clause allowing for the termination of the lease based on the probable taking of the property due to the Bypass Project.

Prior to trial, DOT successfully moved in limine to prevent any testimony “to show lost rents, a reduction in rents, the inability to find and retain tenants, and/or a depreciated or depressed value of the subject property.” Thus, the jury heard testimony at trial regarding the decrease in lease amounts, but no explanation as to the reason for the decrease. For example, DOT questioned Brown’s appraiser on cross-examination regarding how a thirteen-year-old lease was a comparable rent. In light of the ruling in limine, the appraiser could not explain that the thirteen-year-old lease was unaffected by knowledge of condemnation blight. Similarly, when the appraiser was then asked if he was aware that as late as 1998 the property had been leased for $1500 a month, he could only answer in the affirmative.

In State Road Department v. Chicone, 158 So.2d 753, 757 (Fla.1963), the Florida Supreme Court disapproved of admitting evidence of the effect of the pending road project on the value of properties sought to be condemned, finding sound and applicable the following reasoning of the United States Supreme Court in United States v. Virginia Electric and Power Co., 365 U.S. 624, 636, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961):

The court must exclude any depreciation in value caused by the prospective taking once the Government ‘was committed’ to the project. * * * As one writer has pointed out, ‘(i)t would be manifestly unjust to permit a public authority to depreciate property values by a threat * * * (of the construction of a government project) and then to take advantage of this depression in the price which, it must pay for the property’ when eventually condemned.

(Citations omitted; punctuation in original). The supreme court further stated in Chicone:

There can be no doubt that the threat of condemnation restricts the owner’s economic use of property in the interim leading to the actual taking, as it did in this case. It prevents the owner from putting his property to the highest and best use. It would be neither fair, equitable or just to compensate him for'value of his property as established by such limited and restricted use.

158 So.2d at 758. Accord Dep’t of Transp. v. Gefen, 636 So.2d 1345, 1346 (Fla.1994) (“[W]e have held that a condemning authority cannot benefit from a depression in property value caused by a prior announcement of intent to condemn.”); see also § 73.071(5), Fla. Stat. (2000).

Because the trial court erred in granting DOT’s motion in limine, it also erred in failing to’grant the following jury instruction requested by Brown, which instruction encompassed the reasoning of the above-cited cases as well as section 73.071(5):

If you find from the evidence that the fair market value of the property taken in this case decreased because of the prospect of condemnation, you should disregard that decrease and base your award on the value of the property as it would be at the time of the taking without the threat of condemnation. In other words, the full compensation that is due the owner for the taking of his property shpuld be the value of the property as it would have been at the time of the taking uninfluenced by the fact that it was to be taken in this proceeding.

Accordingly, we reverse the final judgment and remand for a new trial.

NORTHCUTT and COVINGTON, JJ., Concur.

      . Brown and his appraiser proffered testimony outside the presence of the jury regarding the effect of condemnation blight on Brown’s rental income from the property.


author: KELLY, Judge.

text:
    Thomas MACKEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2039.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.
    James Marion Moorman, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Thomas Mackey claims that the trial court erred in sentencing him as a habitual violent felony offender because the State failed to give him proper notice. We hold that Mackey had sufficient notice of the State’s intent to seek a habitual violent felony offender sentence and affirm. Mackey raises two additional points on appeal in which we find no merit.

On August 5, 1996, Mackey was charged by information with robbery with a deadly weapon. On September 25, 1996, the State filed its notice that it would seek habitual violent felony offender sentencing. Mackey entered a nolo contendere plea to the charge, but later moved to withdraw the plea. The trial court denied the motion and Mackey appealed that decision. This court reversed, holding that Mackey was entitled to withdraw his plea. Mackey v. State, 743 So.2d 1117 (Fla. 2d DCA 1999). Mackey then elected to proceed to trial. Following his trial in January 2003, a jury found Mackey guilty as charged. The trial court sentenced Mackey to life in prison as a habitual violent felony offender.

In this appeal, Mackey argues that the trial court erred in sentencing him as a habitual violent felony offender because the State failed to file a new notice that it sought habitual offender sentencing after the case had been remanded to the trial court. He claims that under Pitts v. State, 805 So.2d 1087 (Fla. 5th DCA 2002), the case returned to the pre-plea stage upon remand and the State was required to reinitiate the process of seeking habitual offender sentencing by filing a new notice.

In order for a defendant to be sentenced as a habitual offender, the defendant must have had prior written notice of the State’s intent to seek a habitual offender sentence. § 775.084(3)(a)(2), Fla. Stat. (1995); Pitts v. State, 766 So.2d 1191 (Fla. 5th DCA 2000). “The purpose of requiring a prior written notice is to advise of the state’s intent and give the defendant and the defendant’s attorney an opportunity to prepare for the hearing.” Massey v. State, 609 So.2d 598, 600 (Fla.1992). In this case, not only did the State provide Mackey and his attorney with written notice before he entered his plea, but this court also confirmed in its prior opinion that the State could again seek to qualify Mackey as a habitual violent felony offender. Mackey, 743 So.2d at 1117. Mackey had actual notice that he could be sentenced as a habitual violent felony offender before his trial began; thus, any failure by the State to file a second notice was harmless error. See Massey, 609 So.2d at 600 (holding that the State’s failure to strictly comply with the notice requirement of the habitual offender statute is subject to a harmless error analysis). Accordingly, we affirm Mackey’s judgment and habitual violent felony offender sentence.

Affirmed.

CANADY, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: PER CURIAM. VILLANTI, Judge,

text:
    Steven Michael DAVIS, Appellant, v. Heidi Susan DAVIS, Appellee.
    No. 2D03-1908.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.
    Rehearing Denied Aug. 12, 2004.
    Wm. Scott Morris and Hugo M. Villagra of Lusk, Drasites & Tolisano, P.A., Cape Coral, for Appellant.
    Joseph P. Hoffman, Ft. Myers, for Ap-pellee.
   PER CURIAM.

Affirmed.

CASANUEVA and KELLY, JJ., Concur.

VILLANTI, J., Concurs specially.

VILLANTI, Judge,

Specially concurring.

I write to point out that most of the basis for this appeal could have been avoided had the trial court had in place more effective procedures for dealing with unauthorized ex parte communications and for communicating with the parties before issuing its ruling.

In this case, a friend of Heidi Susan Davis (the Wife) sent the trial court a letter admonishing the trial court for what the friend, and apparently the Wife, anticipated would be a ruling denying permanent alimony. The Wife, her friend, and Steven Michael Davis (the Husband) anticipated this ruling based on a memorandum the trial court had sent the parties after the hearing on the dissolution but before it had actually rendered its final decision. Additionally, the Wife evidently barraged the trial court’s judicial assistant with phone calls and voice mails. While there is no evidence that the trial court ever actually received any of these ex parte communications, I am troubled that the trial court could not definitively say it had not. With a uniform procedure in place— such as having the judicial assistant reply with a form letter stating the judge could not ethically entertain the ex parte communication and then file the original and immediately copy the communication to both parties — the parties could have rested assured that no ex parte communication had influenced the trial court. Alternatively, with this sort of notice, the parties would have had the option to request a hearing on the matter.

The second troubling aspect of the procedural handling of this case is that the trial court, for whatever reason, chose to share its thoughts in a preliminary written analysis to the parties. It is axiomatic that the thought processes that form the basis for a trial court’s ruling are not subject to discovery by the parties. Moreover, a trial court’s musings generally do not constitute a ruling. Hutto v. Hutto, 842 So.2d 994 (Fla. 2d DCA 2003). Here, the trial court’s musings were written but were musings nonetheless, and the trial court elected to share those thoughts with the attorneys and, ipso facto, the litigants. Unfortunately, the trial court’s good intentions created the potential for the parties to read into those tentative thoughts what they perceived to be a ruling. Worse still, when these musings were inconsistent with the final judgment and a suggestion arose that the trial court had received ex parte communications, the inference that the trial court had been improperly influenced formed the basis for this appeal. Human nature being what it is, this was a foreseeable consequence, proving once again that no good deed goes unpunished.

It is clear to us that notwithstanding its dissemination to the parties, this preliminary analysis did not rise to the level of a formal ruling. Nevertheless, I would caution the trial court of the dangers under these circumstances of sharing with the parties such initial musings — the evidence of which is found in the appeal brought here.

      .The Code of Judicial Conduct in Canon 3(B)(7) provides:
      [A] judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.
      I am aware of no other mandated, uniform guidelines addressing the procedures for trial courts to follow upon receiving ex parte communications. Thus, there is no prohibition for trial courts to fashion their own hodgepodge procedures for filling this gap.

      . Remarkably, I am likewise not aware of any mandated or uniform procedure prohibiting trial courts from engaging in further "colloquy” with the parties after the hearing is concluded and before a final judgment or ruling is issued.

      . Naturally, the better practice would be for the trial court to issue its ruling at the conclusion of the hearing or shortly thereafter. However, if in the interest of justice further inquiry is required by the trial court, the matter should be addressed in a formal court hearing and not by letter or e-mail to the litigants.


author: STRINGER, Judge.

text:
    CITY OF LARGO, Florida, Appellant, v. Sherry L. RODRIGUEZ and Unemployment Appeals Commission, Appellees.
    No. 2D03-4900.
    District Court of Appeal of Florida, Second District.
    July 7, 2004.
    Rehearing Denied Aug. 12, 2004.

      Thomas M. Gonzalez and Erin G. Jackson of Thompson, Sizemore & Gonzalez, Tampa, for Appellant.
    Marcia S. Cohen of Marcia S. Cohen, P.A., St. Petersburg, for Appellee Sherry L. Rodriguez.
    No appearance for Appellee Unemployment Appeals Commission.
   STRINGER, Judge.

The City of Largo seeks review of the order of the Unemployment Appeals Commission (UAC) reversing the appeals referee’s determination that Sherry Rodriguez was disqualified from receiving unemployment benefits. Because the referee’s determination was supported by competent, substantial evidence, we reverse the UAC’s order granting Rodriguez unemployment benefits and remand for reinstatement of the referee’s determination.

While employed as a recreation program coordinator for the City of Largo, Rodriguez was disciplined with a three-day suspension for her involvement in an alleged violation of the City’s medication distribution policy for summer campers. At a grievance hearing held to discuss the discipline, Rodriguez alleged that she should not be disciplined in the matter because she was unaware of the policy said to have been violated. A revised version of the medication distribution policy was contained in the Summer Camp Handbook, which Rodriguez had previously reviewed with two other program coordinators for any needed revisions. Following the grievance hearing, it was determined that Rodriguez had testified untruthfully when she stated that, in reviewing the Handbook, no discussion was had, and no consensus was reached, regarding the proposed Handbook revisions. Rodriguez was subsequently discharged from work for being untruthful during the grievance hearing, in violation of the City’s code of conduct and disciplinary guidelines which required dismissal for refusal to cooperate fully in any administrative hearing and/or noncriminal work-related investigation.

Following an appeals hearing, the referee issued a decision affirming the Workforce Innovation Unemployment Compensation Program’s determination that Rodriguez was discharged for misconduct connected with work, specifically finding that Rodriguez was discharged for violating the City’s code of conduct and disciplinary guidelines, of which Rodriguez was aware, by being untruthful during a grievance hearing. On appeal, the UAC reversed the referee’s decision, determining that the decision was improper because Rodriguez’s grievance testimony amounted to “no more than a poor recollection of the policy handbook review process, rather than a deliberate falsehood.”

“The UAC’s standard of review of the appeals referee’s decision is whether the referee’s findings of fact were based on competent, substantial evidence in the record .... ” San Roman v. Unemployment Appeals Comm’n, 711 So.2d 93, 95 (Fla. 4th DCA 1998). As the trier of fact, the appeals referee is responsible for weighing and resolving conflicting evidence and judging credibility. Miller v. Fla. Unemployment Appeals Comm’n, 768 So.2d 1218, 1219 (Fla. 4th DCA 2000). A reviewing court may not make determinations as to the credibility of witnesses, reweigh evidence, or substitute its own judgment for that of the appeals referee. Doyle v. Fla. Unemployment Appeals Comm’n, 635 So.2d 1028, 1030 (Fla. 2d DCA 1994); Rex v. Fla. Unemployment Appeals Comm’n, 634 So.2d 257, 258 (Fla. 2d DCA 1994).

An employee will be disqualified from unemployment benefits if she has been discharged by her employer for misconduct connected with work. § 443.101(1)(a), Fla. Stat. (2003). “[Dishonesty is and should be grounds for dismissal and denial of benefits.... ” Johnson v. Unemployment Appeals Comm’n, 680 So.2d 1073, 1073 (Fla. 5th DCA 1996); see also Godwin v. Dep’t of Prof'l Regulation, 461 So.2d 226 (Fla. 1st DCA 1984). In order to constitute misconduct, the employee’s action must be willful, wanton, or deliberate. Anderson v. Unemployment Appeals Comm’n, 822 So.2d 563, 566 (Fla. 5th DCA 2002). In a case alleging dishonesty, when the actor’s intent is not clear, “we must rely on the factfinder’s determination as to whether the misrepresentation was willful.” Johnson, 680 So.2d at 1073.

In this case, the referee found that Rodriguez was untruthful during the grievance hearing when she stated that the changes in the Handbook, including those regarding the medication policy, were not discussed or agreed upon by the three program coordinators reviewing the Handbook. This finding was based on the appeal hearing testimony of Henry Schubert, who conducted the grievance hearing, and the testimony of the two coordinators who reviewed the Handbook with Rodriguez.

Schubert testified that it was Rodriguez’s contention at the grievance hearing that she and the other two coordinators met and conducted the Handbook review independently and without discussion, and therefore Rodriguez had no idea what proposed changes were being submitted. The other two coordinators testified, in contrast to Rodriguez’s contention, that the three coordinators reviewed the Handbook, discussing each potential change, and came to a consensus as to each proposed revision. This testimony provides competent, substantial evidence to support the referee’s finding that Rodriguez was untruthful in the grievance hearing, and it was error for the UAC to reverse the referee’s determination. Accordingly, we reverse the UAC’s order and remand for reinstatement of the referee’s determination that Rodriguez was discharged for misconduct connected with work and is therefore disqualified from receiving unemployment benefits.

KELLY and VILLANTI, JJ„ concur.


text:
    Michael T. CANTY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5884.
    District Court of Appeal of Florida, Second District.
    July 7, 2004.
   STRINGER, Judge.

Michael T. Canty appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). According to Canty’s motion, on January 25,1991, he entered into a negotiated plea agreement on one count of kidnapping, and the trial court sentenced him to twenty-two years in prison followed by three years’ probation. He was released from prison on January 18, 2001, and began serving his probation. He subsequently violated his probation, and on August 30, 2002, he was resentenced to seventeen years in prison.

In his motion, Canty argued that upon resentencing for his violation of probation, the trial court granted him credit for time previously served in prison. However, he argued that the Department of Corrections (DOC) has miscalculated his prison and gain time credit and has him scheduled for release in 2013. On the other hand, he claimed that the DOC’s calculation of his sentence violates his plea agreement. The trial court denied the motion because he must first exhaust his administrative remedies and then file a petition for writ of mandamus with the appropriate circuit court. See Clements v. State, 761 So.2d 1245 (Fla. 2d DCA 2000).

After reviewing Canty’s motion and the attachments, we cannot determine the exact nature of the relief sought in the motion. If, upon resentencing for violation of probation, the trial court did in fact award Canty credit for time previously served in prison, the trial court has completed its responsibility, and any challenge Canty may have regarding the application of prison credit to his sentence should first be raised through the appropriate administrative remedies with the DOC. See Armstrong v. State, 846 So.2d 1227 (Fla. 2d DCA 2003). However, if Canty entered into a plea agreement upon violation of probation for a particular prison sentence and the DOC’s forfeiture of gain time has resulted in a longer sentence than that agreed upon, Canty may be entitled to relief by filing a timely, facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850. See Williamson v. State, 841 So.2d 694 (Fla. 2d DCA 2003). Either way, Canty is not entitled to relief under rule 3.800(a), and we affirm the denial of his motion without prejudice to any right he may have to seek the appropriate relief.

Affirmed.

WHATLEY and COVINGTON, JJ„ concur.


author: NORTHCUTT, Judge.

text:
    Wendell L. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-345.
    District Court of Appeal of Florida, Second District.
    July 7, 2004.
    Rehearing Denied Aug. 16, 2004.
   NORTHCUTT, Judge.

Wendall L. Harris appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Harris argued that his minimum mandatory sentence is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). The circuit court dismissed the claim because Harris did not affirmatively allege that he committed the offense within the window created by Taylor. We affirm the dismissal of this claim without prejudice to any right Harris may have to file a facially sufficient rule 3.800(a) motion. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003).

Harris also alleged that he is entitled to additional jail credit. We affirm the circuit court’s denial of this claim because the record indicates that he is not entitled to the credit. Our affirmance is without prejudice to any right Harris may have to challenge the accuracy of the circuit court records or the effectiveness of his trial counsel by filing a timely, facially sufficient motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Collins v. State, 819 So.2d 945 (Fla. 2d DCA 2002); Blake v. State, 807 So.2d 772 (Fla. 2d DCA 2002).

Affirmed.

COVINGTON and WALLACE, JJ., concur.


author: VILLANTI, Judge.

text:
    Fred Allen BRINKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-400.
    District Court of Appeal of Florida, Second District.
    July 7, 2004.
   VILLANTI, Judge.

Fred Allen Brinkley appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial because the record conclusively refutes Brinkley’s claim. However, we affirm without prejudice to any right Brinkley may have to challenge the forfeiture of gain time through the appropriate administrative remedies with the Department of Corrections and then by way of petition for writ of mandamus in the appropriate circuit court. See Clements v. State, 761 So.2d 1245 (Fla. 2d DCA 2000).

Affirmed.

ALTENBERND, C.J., and STRINGER, J., concur.


author: PER CURIAM.

text:
    Tonny PRESIDENT, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3858.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Lewis A. Fishman of Lewis A. Fishman, P.A., Plantation, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Tonny President was convicted by jury of three counts of robbery with a firearm. He appeals the conviction on the basis that the trial court should have suppressed his taped statement in which he confessed to the robbery. President contends that the Miranda warnings administered to him did not properly advise him of his right to have counsel present during interrogation. We hold that the Miranda warnings were legally insufficient and therefore reverse for a new trial.

President was advised of his rights under Miranda by Detective Sudman of the Broward County Sheriffs Office (BSO). Detective Sudman utilized the preprinted form that the BSO provides to its officers. The form states as follows:

You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to a lawyer and have the lawyer present before any questioning. If you cannot afford a lawyer, one will be appointed to represent you, before any questioning, if you wish.

Although the warnings informed President that he had a right to talk to a lawyer before questioning, President was not specifically advised that he could ask to speak to a lawyer during questioning. We have recently addressed this same issue and held that a Miranda warning which fails to advise the suspect of the right to counsel during interrogation is inadequate. See West v. State, 876 So.2d 614 (Fla. 4th DCA 2004); Franklin v. State, 2004 WL 1335758 (Fla. 4th DCA June 16, 2004); Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004). In addition, the State has failed to produce evidence that President was aware of this right and knowingly waived it. Therefore, President’s taped statement should have been suppressed.

We are unable to conclude that this error was harmless beyond a reasonable doubt. Harmless error exists where the state can prove beyond a reasonable doubt that the error did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Therefore, we reverse President’s conviction and sentence and remand for a new trial.

REVERSED.

WARNER, KLEIN and HAZOURI, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Sean E. CREGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1180.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Sean E. Cregan, Raiford, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Sean Cregan appeals a trial court order summarily denying his rule 3.850 motion for postconvietion relief, in which he sought credit for time served at Turning Point Bridge, a drug treatment program. Cregan sought credit for this time against the sentence he faced for violation of community control.

In summarily denying postconviction relief, the trial court found that there was no pretrial detention order issued and no involuntary or coercive deprivation of liberty in this case. The court cited decisions from this court and another concerning claims for credit for house arrest time served, and recognizing that a court may deny credit for jail time served on community control. See Licata v. State, 788 So.2d 1063 (Fla. 4th DCA 2001); Chancey v. State, 614 So.2d 18 (Fla. 4th DCA 1993).

Here, the court did not appear to exercise its discretion to deny credit for the Turning Point Bridge drug program. Rather, it appears that the trial court denied credit as a matter of law, and did so summarily, without affording Cregan an evidentiary hearing on the issue of whether the drug program qualified him for credit against his subsequent sentence for violation of community control. We reverse and remand for an evidentiary hearing or record attachments conclusively showing no entitlement to relief on this claim. See Johnson v. State, 830 So.2d 194 (Fla. 4th DCA 2002)(certifying conflict with Toney v. State, 817 So.2d 924 (Fla. 2d DCA 2002)); see also Kamerman v. State, 765 So.2d 63 (Fla. 4th DCA 2000). In addition to certifying conflict with Toney once more, we also certify conflict with Molina v. State, 867 So.2d 645 (Fla. 3d DCA 2004), which recently adopted Toney.

REVERSED and REMANDED.

POLEN, STEVENSON and GROSS, JJ., concur.


author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. James K. GILLIAM, Appellee.
    No. 2D03-2960.
    District Court of Appeal of Florida, Second District.
    July 9, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Judge.

The State appeals the trial court’s dismissal of a criminal prosecution for a violation of Florida Rule of Criminal Procedure 3.191, the speedy trial rule. Because defendant James K. Gilliam was not entitled to discharge under the rule, we reverse and remand with instructions to reinstate the criminal action in the circuit court.

The information charging Mr. Gilliam with felony battery, affray, and possession of a controlled substance was filed on the 162d day after his arrest. On the 176th day, defense counsel filed a notice of expiration of speedy trial time pursuant to rule 3.191(h). This triggered a hearing, which was timely held in this case. At the hearing, defense counsel told the court that the defense was not prepared for trial because requested discovery still had not been provided by the State, that his client had not yet been arraigned, and, further, that he was unsure of his client’s whereabouts. He advised the court that he filed the notice of expiration because he felt obligated to do so, to protect his client’s speedy trial rights, when the speedy trial period ran; but he added that he was not requesting a trial. Ultimately, when no trial commenced within the fifteen-day recapture period, defense counsel moved for discharge. Over the State’s objection, the trial court granted the defense motion and discharged Mr. Gilliam.

The purpose of rule 3.191 is to provide a procedural framework for the protection of an accused’s speedy trial rights. The rule’s protections differ from those afforded by the constitutional speedy trial doctrine. The two are not coextensive. Only the procedures under the rule are implicated in this case.

Rule 3.191 permits an accused to file a notice that the 175-day speedy trial period has expired. When such notice is filed, two procedural requirements are imposed on the trial court. First, a hearing on the notice must be held within five days. Second, “unless the court finds that one of the reasons set forth in subdivision (j) exists, [the court] shall order that the defendant be brought to trial within 10 days”; a defendant not properly brought to trial within the ten-day period “shall be forever discharged from the crime.” Fla. R.Crim. P. 3.191(p)(3).

The resolution of this case is governed by our supreme court’s recent decision in State v. Naveira, 873 So.2d 300 (Fla.2004). In Naveira, Justice Cantero, writing for the majority, succinctly phrased the issue:

We must decide whether, when the State files a charging document on the last day of the speedy trial period and the defendant invokes his right to a speedy trial by filing a notice of expiration of the speedy trial period, but later moves for a continuance based on insufficient time to prepare for trial, the continuance should be charged to the State (thus discharging the defendant) or to the defendant.

Id. at 302. The court concluded that the defendant’s rule 3.191 right to a speedy trial was not violated “where trial was scheduled within the rule’s deadlines and the defendant sought a continuance because he was not prepared for trial.” Id.

In Naveira, the State filed the information and provided discovery on the 175th day of the speedy trial time period, the last possible day. Id. at 305 (“Essentially, then, the speedy trial deadline also acts as the deadline for charging the defendant.”). Naveira filed his notice of expiration of speedy trial five days later. Two days after that, at the hearing on his notice required by rule 3.191(p)(3), Naveira requested a continuance because the defense was unprepared for trial due to the State’s tardy filing of the information and providing discovery. Because of the State’s delay, he wanted the continuance charged to the State. The trial court agreed and granted the continuance, charging it to the State. Because the rule’s deadlines expired without trial commencing, the trial court granted Naveira’s subsequent motion for discharge. The First District affirmed the trial court, holding that the State’s tardy filings, although -within the 175-day speedy trial period, had forced the defendant to request a continuance. State v. Naveira, 807 So.2d 766, 767 (Fla. 1st DCA 2002). In reversing, the supreme court noted two critical facts: the defendant was not ready for trial within the time period he triggered by filing his notice of expiration of speedy trial, and he had requested a continuance. Based on these facts, the supreme court deemed him “unavailable for trial” as set forth in rule 3.191(k) and not entitled to discharge. 873 So.2d at 306.

The supreme court explained that when defense counsel files a notice under the rule that the 175-day speedy trial requirement has expired, it is a signal that the defendant is prepared and desires the setting of a trial:

When Naveira filed his notice of expiration, he was on notice that the trial court would hold a hearing within five days and a trial within ten days. Under the rule, he received the right to an immediate trial. He declined to exercise that right, as was his prerogative. But he cannot now protest that his right to a speedy trial was violated. Although we sympathize with the defendant’s position in this case, the fact remains that under rule 3.191, Naveira’s right to speedy trial existed until he declined to exercise it. Naveira was not compelled, as the dissent asserts, to abandon his right to a speedy trial.

873 So.2d at 308.

The rationale of Naveira applies in Mr. Gilliam’s analogous factual situation. At the hearing on his notice of expiration of speedy trial, Mr. Gilliam, through counsel, advised the court that for several reasons, including being unprepared for trial, he was neither requesting nor demanding his right to a trial pursuant to rule 3.191, despite his filing of the notice of expiration. But, according to Naveira, he was demanding his right to an immediate trial by filing the notice of expiration. Like the defendant in Naveira, Mr. Gilliam was being afforded his procedural right to an immediate trial within fifteen days, but he declined to exercise that right. Therefore, he cannot successfully assert that his right to a speedy trial under the rule was violated.

The trial court, not having had the advantage of Naveira when it ruled, erred in discharging Mr. Gilliam. We reverse and remand for further proceedings.

SILBERMAN and CANADY, JJ., concur.

      . The transcripts of the various hearings held in this case do not show a specific ruling granting a continuance and charging it to the State. At various points the trial court and the assistant state attorney suggested that defense counsel so move, but defense counsel never actually did so. The trial court finally told defense counsel, "I'm not going to force you to go to trial now. When the fifteen days elapse, we’ll deal with it, OK?” However, all parties governed themselves and the proceedings culminated as if a continuance had been charged to the State.


text:
    Arturo CANO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3830.
    District Court of Appeal of Florida, Second District.
    July 9, 2004.

      James Marion Moorman, Public Defender, and James C. Banks and Alexander Dombrowsky, Special Assistant Public Defenders, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Arturo Cano appeals his judgments and sentences for ten separate sexual offenses, including two counts of capital sexual battery. We affirm and write to discuss two issues. We conclude that the trial judge was not required to disqualify himself from ruling on the motion to suppress merely because he was the magistrate who issued the earlier search warrant. We further conclude that the magistrate in issuing this search warrant, although required to consider the relevance and the sufficiency of the evidence within the affidavits, was not required to conduct a Frye hearing before determining the issue of probable cause.

In 1989, Mr. Cano lived next door to the victim, who was then a four-year-old girl. While she was visiting his house, he fondled her. About three years later, Mr. Cano moved in with the victim and her mother. Thereafter, he sexually abused the victim frequently. Between 1993 and 2001, he engaged in repeated and progressively more advanced sexual conduct with the victim. During the period when the victim was less than twelve years of age, much of the abuse constituted capital sexual battery. When the victim was old enough to attend eighth grade, Mr. Cano arranged to home school this child to reduce the likelihood that his crimes would be discovered. In December 2000, the victim observed a nude photograph of herself, which Mr. Cano was using as a screensaver on his computer. She also viewed additional nude photographs of herself and photographs of other young children engaged in sexual activity with adults, which were available on his computer.

In the spring of 2001 when Mr. Cano moved out of the victim’s house, she told her mother about the molestations. The mother confronted Mr. Cano, who did not deny the allegations but responded violently. The mother does not speak English, and she delayed reporting these events to law enforcement. Nevertheless, by July 2001, the Manatee County Sheriffs Office began an investigation.

The victim, who was sixteen years old when she reported the abuse, gave a deputy a detailed statement. She also called Mr. Cano on the telephone, allowing the deputy to monitor the call. During the call, she falsely claimed that Mr. Cano had given her herpes. He denied that he had done so, but only because he claimed that he saw a doctor frequently and did not have the disease. Mr. Cano also asked her if she remembered how he always told her that one day he believed he was going to prison and would never get to see her again. The victim told Mr. Cano that her mother was going to have him charged with sexually molesting her, and he did not deny molesting her. The victim asked if he still had the naked pictures of her, and he told her that he had gotten rid of all of her things, but did not expressly state that he had destroyed his photographs of her.

Following this investigation, law enforcement sought to obtain a search warrant for Mr. Cano’s residence. They wished to search for computers and computer-related physical evidence that might contain the photographs described by the victim. They also sought camera equipment and videotapes, slides, or film that might depict the victim or nudity of other children. Finally, they sought pornographic publications and physical evidence of computer passwords or encryption codes.

In support of the request, law enforcement filed a lengthy affidavit and application for a search warrant on July 20, 2001. Two officers submitted affidavits in support of the warrant. The first officer had been involved in the interview of the victim and her mother. His affidavit detailed the information provided to law enforcement by the victim and the mother. This portion of the application was a typical affidavit in support of a search warrant.

The second officer’s affidavit was somewhat unusual. He had been a deputy for twenty years. He had extensive experience and training in computer/internet child exploitation and sexual offenses involving children. His affidavit provided information about the psychological profile of the typical person who commits repeated sex crimes involving one targeted child and those who involve themselves with child pornography on computers and the internet. Although not expressly stated, this portion of the application for the search warrant was included to establish (1) the types of computers, camera equipment, and recorded images that would be associated with these crimes, and (2) the tendency of such persons to store and retain such images for an extended time. The extended period of retention was important to establish that the victim’s information about data in the computer in December 2000 was not stale in July 2001.

This application was submitted to Judge Marc B. Gilner. He issued the search warrant on July 20, 2001. Thereafter, deputies searched Mr. Cano’s residence. They seized various pieces of computer equipment, videotapes, and other property. The State then filed a thirty-three-count information against Mr. Cano. The first eleven counts of the information alleged various sexual crimes involving the victim. The remaining twenty-two counts alleged possession of a photograph, motion picture, or other presentation of sexual conduct by a child. The twenty-two counts of possession of photographs or motion pictures of sexual performance by a child were severed from the other charges involving the victim. Only the first eleven counts involving the victim were tried, and this appeal addresses only the convictions and sentences as to those charges.

Of the various items seized from Mr. Cano, the only item introduced into evidence that may have contributed to his conviction is a videotape that Mr. Cano took of himself while he was manicuring the victim’s fingernails when she was twelve. On the videotape, he can be seen inserting his hand into her pants for a brief period. The victim testified extensively during the trial. She confirmed the events shown on this tape, explaining that he placed his finger into her vagina.

When the information was filed, it was assigned to the division over which Judge Gilner presided. Mr. Cano filed a motion to suppress the items seized from his home. He also filed a motion to disqualify Judge Gilner on the ground that Judge Gilner had issued the search warrant. Judge Gilner denied both the motion to recuse and the motion to suppress. At the conclusion of the case, the jury convicted Mr. Cano of ten of the eleven counts, including three counts of capital sexual battery. Accordingly, he was sentenced to life in prison.

DISQUALIFICATION ISSUE

On appeal, Mr. Cano first challenges the order denying his motion to disqualify Judge Gilner. This motion alleges only that Judge Gilner issued the search warrant and, as a result of this act, should be disqualified from hearing the motion to suppress evidence obtained as a result of the warrant. We conclude that this motion is facially insufficient.

The fact that a judge has made adverse rulings in the past against a defendant or that the judge has previously heard the evidence are generally considered insufficient reasons to disqualify a judge. See Rivera v. State, 717 So.2d 477, 481 (Fla.1998). Although the parties have not cited any Florida ease addressing the issue of whether a trial judge is obligated to recuse himself or herself when reviewing a search warrant issued by the judge, the case law of other states consistently permits a judge to handle a motion to suppress under these circumstances. We likewise hold that, absent additional circumstances, the fact that a trial judge issued a search warrant is not grounds to require disqualification of that judge from hearing a motion to suppress evidence obtained as a result of the search warrant.

APPLICATION OF FRYE TO PROBABLE CAUSE DETERMINATION

Mr. Cano argues that his motion to suppress the videotape should have been granted primarily because the trial court considered an affidavit containing a psychological profile of sex offenders. This profile described the typical person who commits repeated sex crimes involving one targeted child and those persons who involve themselves with child pornography on computers and the internet. He argues that such a sworn statement cannot provide probable cause for a search because it does not pass the Frye test. For support, Mr. Cano relies primarily on the supreme court’s decisions in Flanagan v. State, 625 So.2d 827 (Fla.1993), and Hadden v. State, 690 So.2d 573 (Fla.1997).

In Flanagan, the supreme court held that expert testimony based on a sex offender profile was inadmissible at trial in a capital sexual battery case because the profile did not meet the requirements for novel scientific evidence under Frye, 625 So.2d at 828. The prosecution offered this testimony in Flanagan to establish that the defendant was the person who committed the sexual battery and to imprison the defendant for life. Id. at 829. The evidence presented to the jury was regulated by the Florida Evidence Code and the decision of guilt needed to be based on evidence beyond a reasonable doubt. Although the supreme court held that the evidence of a sex offender profile should not have been introduced, it concluded that the error was harmless.

In Hadden, the supreme court decided that evidence of a “child sexual abuse accommodation syndrome” was also inadmissible at trial under the Frye standard. 690 So.2d at 575. In Hadden that evidence was used to help establish that the alleged victim was in fact sexually abused. Id. at 575-76. The use of this testimony was not harmless in Hadden.

In this ease, the affidavit of the deputy described his experience and his knowledge or beliefs about the tendencies of child sexual offenders who utilize computers and cameras. We are not entirely convinced that the deputy provided expert testimony in his affidavit or that his testimony should be regarded as expert scientific evidence, but we make that assumption for purposes of this opinion. Neither the deputy nor the magistrate relied on this evidence to decide whether the young girl was a victim of sexual abuse or whether Mr. Cano was the perpetrator. This evidence was utilized merely to determine the scope of the search and to conclude that the other evidence supporting the search was not stale. The issue of staleness was decided in a context where the underlying sexual misconduct had been ongoing for many years and the evidence about the digital photographs in the computer was about eight months old.

Under section 933.04, Florida Statutes (2001), the magistrate used this evidence to determine the existence of probable cause, not to determine a fact beyond reasonable doubt. In determining probable cause, a magistrate considers the totality of the circumstances and evaluates evidence to establish a “probability, and not a prima facie showing, of criminal activity.” Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). A magistrate can quite properly issue a search warrant “on the basis of [his or her own] nontechnical, commonsense judgments,” and may apply a standard less demanding than those used in more formal legal proceedings. Gates, 462 U.S. at 236, 103 S.Ct. 2317. A search warrant results in a limited invasion of privacy and property rights and does not directly affect liberty in the way that a criminal trial affects liberty.

It is well established that a search warrant can be issued based upon affidavits and hearsay evidence. See Lara v. State, 464 So.2d 1173 (Fla.1985). There is no requirement that probable cause to issue a search warrant be based only on evidence that would be competent at trial. 68 Am.Jur.2d Search and Seizure § 185 (2000). The type of thorough consideration given at trial to relevance or to the prejudicial effect of evidence versus its probative value is not feasible or appropriate when a magistrate issues a search warrant. The restrictive, standards of Frye, while not entirely out of place when issuing a warrant, are not essential to that process. Moreover, the Frye approach to novel scientific evidence contemplates an adversarial hearing that occurs only when the opposing party objects to the evidence. Hadden, 690 So.2d at 580. This methodology is not particularly adaptable to the procedures used to obtain a search warrant under chapter 933, Florida Statutes (2001). The only out-of-state case that we have located addressing this issue refused to apply the Frye procedures to a magistrate’s ex parte decision to issue a search warrant. See Fitzgerald v. State, 153 Md. App. 601, 837 A.2d 989, 1016 (Ct.Spec.App.2003).

We do not wish to minimize the importance of a warrant or the evidence required to establish probable cause. We are not encouraging magistrates to issue warrants based on junk science or superstition. However, in this context, we believe that the affidavit contained some relevant and material evidence that helped justify the scope of the search and helped overcome any issue of staleness. Accordingly, we conclude that the trial court did not err in refusing to suppress the videotape seized during the search and that this tape was properly admitted into evidence during the trial.

Affirmed.

DAVIS and SILBERMAN, JJ., concur.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

      . This person is described as a "preferential child molester.”

      . See Heard v. State, 574 So.2d 873, 874-75 (Ala.Cr.App.1990); Holloway v. State, 293 Ark. 438, 738 S.W.2d 796, 798 (1987); Arnold v. Commonwealth, 421 S.W.2d 366, 366-67 (Ky.1967); People v. Liberatore, 79 N.Y.2d 208, 581 N.Y.S.2d 634, 590 N.E.2d 219, 224 (1992); Waupoose v. State, 46 Wis.2d 257, 174 N.W.2d 503, 504 (1970); State v. Toce, 6 Conn.Cir.Ct. 192, 269 A.2d 421, 422-23 (1969); State ex rel. French v. Hendricks Superior Ct., 252 Ind. 213, 247 N.E.2d 519, 525 (1969); Trussell v. State, 67 Md.App. 23, 506 A.2d 255, 256 (Ct.Spec.App.1986); State v. Poole, 472 N.W.2d 195, 197 (Minn.Ct.App.1991); State v. Smith, 113 N.J.Super. 120, 273 A.2d 68, 78 (App.Div.1971); Irwin v. State, 441 S.W.2d 203, 208-09 (Tex.Crim.App.1969). But see Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984).

      . See Fla. R. Jud. Admin. 2.160; Thompson v. State, 759 So.2d 650 (Fla.2000) (stating prior adverse ruling, alone, not sufficient).

      . Interestingly, this additional evidence helps distinguish this case from Burnett v. State, 848 So.2d 1170 (Fla. 2d DCA 2003). In Burnett, we held an officer’s affidavit was facially insufficient when it lacked any factual basis to support a probable cause determination. Id. at 1175. In many respects, the additional affidavit in this case is designed to overcome the problem presented in Burnett

      . Our ruling is limited to the videotape. The photographs and other evidence that were seized during this search, which may be used to prove the offenses alleged in the severed counts, are not in our record and are not involved in this appeal.


text:
    S.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4317.
    District Court of Appeal of Florida, Second District.
    July 14, 2004.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

After a trial, the circuit court withheld adjudication but placed S.P. on juvenile probation for the offense of felony criminal mischief, a violation of section 806.13(l)(b)(3), Florida Statutes (2002). S.P. was accused of vandalizing an acquaintance’s automobile by running a screwdriver along the hood and fender, gouging the paint. Because the State never introduced competent, substantial evidence of the monetary value of the damage to the car, we reverse and remand for the court to modify the disposition order to reflect the offense of first-degree misdemeanor criminal mischief.

The only evidence of dollar value came from the victim, who testified that the car would cost “about a thousand dollars” to repair. She attempted to testify that she arrived at that figure from three estimates she had received, but the court sustained the defense attorney’s hearsay objection to that testimony. In closing argument, however, the State was permitted to argue that the damage was “in excess of a thousand dollars,” a comment that clearly although perhaps unintentionally misstated the victim’s testimony. When the defense attorney objected to the prosecutor’s argument on the ground that its prior hearsay objection had been sustained, the court ruled that the victim’s testimony as to the amount had come into evidence and that only the hearsay foundation for the amount had been excluded.

We are troubled by the court’s ruling that the testimony as to amount of damage had been admitted into evidence. Even assuming that the court had properly sustained the defense objection only as to the hearsay basis of the victim’s testimony, the effect was to allow testimony for which no foundation had been laid. This is important because, even though the damage amount is not an element of the offense of criminal mischief, it is relevant to the severity of the crime. See Valdes v. State, 510 So.2d 631, 632 (Fla. 3d DCA 1987). To support a conviction or juvenile disposition for felony criminal mischief, the State must prove that the damage is “$1000 or greater.” § 806.13(1)(b)(3).

The First District addressed this issue directly in R.A.P. v. State, 575 So.2d 277 (Fla. 1st DCA 1991). There, the victim’s automobile had been damaged when several boys threw a trash can at it and hit it with sticks'and axe handles. The victim “testified, based upon estimates he received from automobile body repair shops, that the value of the damage was approximately $1200.” Id. at 279. The district court ruled that this testimony constituted inadmissible hearsay that had been properly objected to and that could not sustain a felony criminal mischief adjudication. Id. The State did, however, present other evidence supporting adjudication for the lesser offense of first-degree misdemeanor criminal mischief, which requires proof of damage “greater than $200 but less than $1000.” § 806.13(l)(b)(2). A passenger experienced in fiberglass repair estimated that the car sustained damage between $600 and $700. This testimony, the First District held, “was admissible as either lay opinion based on his knowledge of the facts he perceived, or as expert opinion based upon his experience in body repair work.” R.A.P., 575 So.2d at 279.

By contrast, in this case the State did not present any evidence from a person competent to testify concerning the dollar amount of damage. And, even assuming that the victim’s testimony of “about $1000” was properly before the court, that evidence was equally susceptible to three interpretations: that the damage was less than $1000, greater than $1000, or exactly $1000. We recognize that in some circumstances, the fact-finder can infer from life experience and from the self-evident nature of the repairs that a statutory damage threshold has been met. A.D. v. State, 866 So.2d 752, 753-54 (Fla. 2d DCA 2004) (citing Clark v. State, 746 So.2d 1237 (Fla. 1st DCA 1999), approved, 783 So.2d 967 (Fla.2001)). In this case, however, the fact-finder did not have before it sufficient evidence from which to infer that the “$1000 or greater” threshold had been met. A police officer and the victim testified that the car sustained substantial damage, and the court received into evidence photographs depicting scrapes and scratches down to the metal. This evidence was sufficient for the court to infer that the damage was over $200 and that S.P. had committed first-degree misdemeanor criminal mischief, but it was insufficient to prove the “$1000 or greater” threshold for felony criminal mischief.

Accordingly, we reverse the disposition order and remand for the court to enter an order reflecting that S.P. has been placed on juvenile probation for the offense of misdemeanor criminal mischief.

Reversed and remanded.

DAVIS and SILBERMAN, JJ., concur.


author: WALLACE, Judge.

text:
    Kenneth L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-743.
    District Court of Appeal of Florida, Second District.
    July 14, 2004.
   WALLACE, Judge.

Kenneth L. Williams seeks review of the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Williams’ motion was based in part on a claim of newly discovered evidence that was facially insufficient. Therefore, we affirm the order of the trial court without prejudice to Williams’ right to file a facially sufficient claim based on newly discovered evidence. We affirm without comment the trial court’s summary denial of Williams’ other claims.

Affirmed without prejudice to Williams’ right to refile a facially sufficient claim based on newly discovered evidence within sixty days of the issuance of the mandate in this case.

FULMER and STRINGER, JJ., concur.


text:
    Robert A. KENDRICKS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 2D04-95.
    District Court of Appeal of Florida, Second District.
    July 14, 2004.
   CASANUEVA, Judge.

We affirm without prejudice to Ken-dricks’ right to refile his motion for post-conviction relief with proper oath. Since it appears that the two-year time limit for Kendricks to file a motion pursuant to Florida Rule of Criminal Procedure 3.850 has expired, Kendricks shall have thirty days from the date of the mandate following this opinion to file a corrected motion and memorandum of law. See Pavey v. State, 720 So.2d 563 (Fla. 2d DCA 1998).

Affirmed without prejudice.

FULMER and STRINGER, JJ„ Concur.


text:
    Timothy WHITEHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-865.
    District Court of Appeal of Florida, Second District.
    July 16, 2004.
   STRINGER, Judge.

Timothy Whitehead appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s denial of three claims, but we reverse and remand for the trial court to correct an illegal sentence pursuant to a claim that Whitehead inartfully attempted to raise in his motion and that is apparent from the face of the record but that the trial court failed to address.

On March 6, 2002, a jury convicted Whitehead of aggravated battery with a deadly weapon, and the jury specifically found that Whitehead used and discharged a firearm. The trial court imposed a minimum mandatory sentence of twenty years in prison pursuant to section 775.087(2)(a)(2), Florida Statutes (1999).

The amended information attached to his rule 3.800(a) motion indicates that the information did not charge that Whitehead discharged a firearm. The information only charged the use of a firearm, but the court enhanced Whitehead’s sentence for discharging a firearm under section 775.087(2)(a)(2). The grounds for enhancement of a sentence must be charged in the information. See Rogers v. State, 875 So.2d 769 (Fla. 2d DCA 2004); Altieri v. State, 835 So.2d 1181 (Fla. 4th DCA 2002). A firearm may be used without being discharged; therefore, an allegation of “use” will not sustain an enhancement for discharging a firearm under 775.087(2)(a)(2). See Rogers, 875 So.2d 769. Furthermore, neither the jury’s finding that the firearm was discharged nor the inclusion of the statute number in the information cures the defect in the information. See id.

Because the information did not charge the grounds for enhancement, Whitehead’s minimum mandatory sentence is illegal and may be corrected at any time under rule 3.800(a). See Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001). Accordingly, we reverse and remand for the trial court to resentence Whitehead under the Criminal Punishment Code. The trial court shall strike the twenty-year minimum mandatory sentence, but it shall impose the ten-year minimum mandatory sentence for use of a firearm pursuant to section 775.087(2)(a)(1).

Affirmed in part, reversed in part, and remanded.

COVINGTON and CANADY, JJ., concur.


author: COVINGTON, Judge.

text:
    Jose GUARDIOLA, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-122.
    District Court of Appeal of Florida, Second District.
    July 16, 2004.
   COVINGTON, Judge.

Jose Guardiola, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises three grounds alleging ineffective assistance of appellate counsel. We grant the petition as it relates to one of the grounds raised therein, and we deny, without comment, the remaining two grounds.

Guardiola was charged by information with, inter alia, attempted second-degree murder with a firearm. He was convicted of the lesser included offense of aggravated battery with a firearm. Guardiola alleges that appellate counsel was ineffective for not raising the argument on direct appeal that the trial court’s failure to instruct the jury on the definitions of excusable and justifiable homicide constituted fundamental error requiring reversal of his aggravated battery conviction.

In Damoulakis v. State, 814 So.2d 1204 (Fla. 2d DCA 2002), Damoulakis was charged with attempted second-degree murder but was convicted of the lesser included offense of aggravated battery. The trial court in that case also failed to instruct the jury on the definitions of excusable and justifiable homicide. The Damoulakis court cited Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999), for the proposition that the trial court is required to instruct the jury on excusable and justifiable homicide in all murder and manslaughter cases and that the failure to do so constitutes fundamental error. See 814 So.2d at 1205. Even though Damoulakis was issued prior to the filing of the initial brief in the appeal from the judgment and sentences in this case, appellate counsel did not raise the issue that the trial court committed fundamental error in failing to instruct the jury on the definitions of excusable and justifiable homicide. Appellate counsel’s omission constituted deficient performance that undermined confidence in the correctness and fairness of the result of the appeal. See Downs v. Moore, 801 So.2d 906 (Fla.2001) (holding that to establish a claim of ineffective assistance of appellate counsel, a petitioner must show that counsel’s performance was deficient and the deficiency of the performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the result).

We emphasize two aspects of this decision. First, our decision to permit Mr. Guardiola to file a new notice of appeal is no guaranty that we will ultimately determine that he is entitled to relief. Whether this case is controlled by Damoulakis or whether this court should recede from Damoulakis are issues that we can consider at a later time.

Likewise, Mr. Guardiola was convicted and sentenced for aggravated battery with a firearm, aggravated assault with a firearm, and shooting into an occupied vehicle. The issue that we rule on today entitles him to appeal the judgment and sentence for aggravated battery with a firearm, but there is no reason to believe that our affirmance in his original appeal is subject to question as to the other two offenses. We have not authorized an appeal from the other judgment and sentences.

Accordingly, the petition is denied in part and granted in part, with instructions to the trial court to, within thirty days from the issuance of the mandate in this case, appoint an appellate attorney to file a brief on the above issue. Appellate counsel shall, within thirty days of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal.

ALTENBERND, C.J., and STRINGER, J., concur.

      . Portions of the trial transcript attached to the trial court's order show that trial counsel neither objected to the failure to instruct the jury on the definitions of excusable and justifiable homicide nor did he affirmatively agree to the omission of said instructions.

      . Since the issuance of Damoulakis, this court has created an exception to the rule that the failure to instruct the jury on the definitions of excusable and justifiable homicide in all murder and manslaughter cases is fundamental error. In Pena v. State, 829 So.2d 289 (Fla. 2d DCA 2002), this court held that it was not fundamental error to omit the instructions on excusable and justifiable homicide where the defendant was charged and convicted of drug-distribution first-degree murder and the factual circumstances did not support any jury argument relying upon the excusable or justifiable homicide jury instructions. We note that, in the present case, the portions of the trial record before us establish that Guar-diola, who was in no danger nor under threat of any kind, intentionally fired, unprovoked, on the victim’s car, and that Guardiola’s defense at trial was that the State did not establish that he was the shooter.


text:
    Pedro B. DELGADO, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3044.
    District Court of Appeal of Florida, Second District.
    July 16, 2004.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

We affirm Pedro Delgado’s conviction for trafficking in cocaine. We reverse, however, the mandatory minimum sentence imposed pursuant to chapter 99-188, Laws of Florida, and remand for Delgado to be resentenced.

Chapter 99-188 is a criminal punishment statute providing for mandatory minimum sentences for certain drug offenses. This court determined the statute was an unconstitutional violation of the single-subject rule of the state constitution in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). In 2002, the legislature reenacted the substantive provisions of chapter 99-188 and cured the single-subject violation. See ch. 02-212, Laws of Fla. The legislature also purported to make the new law retroactive to the date of the 1999 statute. However, this court found retroactive reach of chapter 02-212 to violate the Ex Post Facto Clauses of the United States and Florida constitutions in Green v. State, 839 So.2d 748 (Fla. 2d DCA), review granted, Franklin v. State, 854 So.2d 659 (Fla.2003). Thus, under the law of the Second District, chapter 99-188 is a void statute, and chapter 02-212 applies prospectively only, from the date of its enactment. Id. at 752, 755.

Persons committing offenses between July 1, 1999, and April 29, 2002, the bookends for the legislature’s attempted enactment of the void statute and its subsequent cure of the statute for prospective offenses, must be sentenced under the 1997 statutes. See id. at 750 n. 1. The State concedes that the date of Delgado’s offense falls within the window for asserting challenges to the minimum mandatory sentence and agrees that Delgado’s sentence, under the current law, is illegal. We therefore reverse and remand for Delgado to be resentenced under section 893.135(l)(b)(l)(a), Florida Statutes (1997). We also certify conflict with those cases with which we certified conflict in Green.

Reversed and remanded with directions; conflict certified.

STRINGER and KELLY, JJ., concur.


author: FULMER, Judge.

text:
    Daisy COOLEY, Appellant, v. Darren K. MOODY, Appellee.
    No. 2D03-5091.
    District Court of Appeal of Florida, Second District.
    July 16, 2004.

      Dennis J. Alfonso of McClain & Alfonso, P.A., Dade City, for Appellant.
    Laurie R. Chañe of Chañe & Eble, P.A., Dade City, for Appellee.
   FULMER, Judge.

In this paternity action, the Mother, Daisy Cooley, challenges the trial court’s order finding her in contempt of court for deliberate failure and refusal to comply with an oral order of the court announced at the hearing on a motion filed by the Father, Darren Moody, seeking temporary custody of the parties’ minor child. We reverse.

The parties in this appeal are the unmarried parents of a minor child born on February 23, 2001, in South Carolina. At the birth of the minor child, the Father acknowledged paternity and signed the birth certificate. He provided support for the Mother and child both prior to and after the birth. Between September 2002 and June 2003, the child resided with the Father in Florida. During this period the Mother visited with the child. In his petition for paternity, the Father alleged that in June 2003, the Mother fled the State of Florida with the child, presumably to the State of South Carolina. Thereafter, the Father filed his petition for determination of paternity and motion for temporary custody.

At the conclusion of the hearing held August 8, 2003, on the Father’s petition and motion, at which paternity was not contested, the trial court designated the Father as the temporary custodial parent. The trial court also orally ordered the Mother to “turn the child over to Mr. Moody” at 10:00 a.m. on August 11, 2003, at a designated law office in South Carolina. The trial court’s rulings were reflected in a written order rendered August 18, 2003. On August 11, 2003, the Mother appeared at the law office with the child. The Father was not present. However, his wife, Lisa Moody, was present. The Mother refused to leave the child and the transfer of custody failed.

The Father filed a motion for contempt alleging that the Mother was ordered to “[b]ring the child to the law offices of Standeffer, Harbin and Griffith, 1000 Main Street, Anderson, South Carolina on Monday, August 11, 2003” and that the Mother “willfully failed to comply with said order. By [sic] refusing to leave the child at that office where the [Father’s] wife was waiting for the minor child.”

At the hearing on the motion for contempt, most of the facts were agreed to by stipulation. Counsel for the Mother argued that the Mother complied with the specific directives of the order by appearing at the designated place and time, prepared to deliver the child to the Father; that the Father failed to comply with the order by not being present to take custody of the child; and that the law does not allow someone to be found in contempt of the unstated spirit of an order. In finding the Mother in contempt, the trial court announced:

I am not going to find Ms. Cooley in contempt of court for her failure to turn over Tyler to Mrs. Moody because the order didn’t say that.
However, I am finding her in contempt of court on the custody issue, because the custody was to be changed from Ms. Cooley to Mr. Moody. And although the order was specific that she was to turn over custody on a particular date and time, she did not do that based on Mrs. Moody being there.
She has made no attempts since then to effectuate the custody that was ordered by this Court and I am finding her in willful contempt of court of [sic] that.

On appeal, the Mother argues that the trial court erred by, sua sponte, finding the Mother in contempt for making “no attempts since [August 11, 2003] to effectuate the custody that was ordered by this Court” because the Mother was not ordered to attempt other arrangements to effectuate the transfer of custody in the event that the Father did not appear on August 11. The Father argues that when the Mother arrived at the designated law office, she knew the intent of the order was that she release the child and her failure to release the child was a willful violation of the order for which the trial court properly found her to be in contempt. We disagree.

It is well-established that “[o]ne may not be held in contempt of court for violation of an order or a provision of a judgment which is not clear and definite so as to make the party aware of its command and direction.” Lawrence v. Lawrence, 384 So.2d 279, 280 (Fla. 4th DCA 1980). And, “implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt.” Keitel v. Keitel, 716 So.2d 842, 844 (Fla. 4th DCA 1998). The order of contempt entered in this case violates both of these rules.

The trial court correctly concluded that the Mother could not be held in contempt for failing to leave the child with Mrs. Moody because the order did not direct her to do so. However, the trial court erred by proceeding to find the Mother in contempt for failing to make attempts to effectuate the transfer of custody after August 11, 2003. It may have been the trial court’s intent that the Mother find an alternative method to transfer custody if the August 11 transfer failed, but there is no language in the trial court’s temporary custody order that directs the Mother to do so. We appreciate the trial court’s frustration with the Mother’s literal reading of the order. However, the law affords her the right to read the order as expressly written because the law also imposes upon the court the requirement to be explicit and precise in its commands if strict compliance is to be- exacted in the form of a contempt sanction. See Lawrence v. Lawrence, 384 So.2d 279 (Fla. 4th DCA 1980).

Accordingly, we reverse the trial court’s order finding the Mother in contempt.

Reversed.

ALTENBERND, C.J., and COVINGTON, J., Concur.

      . Although neither the Father nor the trial court ever identified the type of contempt proceeding invoked in this case, it may only be characterized as civil contempt because the Father initiated it by motion and sought to compel the Mother’s compliance with a court order rather than to punish her for noncompliance. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977).


text:
    Rosa WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2156.
    District Court of Appeal of Florida, First District.
    July 20, 2004.
    Rosa Williams, pro se, appellant.
    Charlie Crist, 'Attorney General, Tallahassee, for appellee.
   PER CURIAM.

This appeal is hereby dismissed for lack of jurisdiction because the notice of appeal was not filed within 30 days of rendition of the final order.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Jireh Randall KLEPPINGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3486.
    District Court of Appeal of Florida, Second District.
    July 21, 2004.

      Michael V. Giordano, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Jireh Randall Kleppinger appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Klep-pinger raised eight grounds, for relief. We affirm without comment as to five of the grounds and reverse and remand as to three of them.

Kleppinger was convicted after a jury trial of attempted second-degree murder, escape, kidnapping, and depriving an officer of means of communication or protection. His convictions and sentences were affirmed on appeal. Kleppinger v. State, 779 So.2d 472 (Fla. 2d DCA 2000).

In ground one of Kleppinger’s rule 3.850 motion, he alleges that counsel was ineffective for failing to advise him of possible sentences he faced if he proceeded to trial. Kleppinger states that he would have accepted the State’s plea offer if he had been properly advised. Therefore, he states a prima facie claim of ineffective assistance of counsel, alleging both deficiency and prejudice. See Aebi v. State, 842 So.2d 888, 889 (Fla. 2d DCA 2003). The trial court denied this claim because Kleppinger did not allege that counsel gave him inaccurate advice. This conclusion fails to recognize that no advice at all is just as useless as inaccurate advice. A defendant is inherently prejudiced by his inability, due to his counsel’s neglect, to make an informed decision whether to plea bargain. Cottle v. State, 733 So.2d 963 (Fla.1999). Since the trial court did not attach portions of the record that refute Kleppinger’s claim, we reverse and remand for the court either to attach record portions refuting the claim or to conduct an evidentiary hearing.

In ground four of Kleppinger’s motion, he alleges counsel was ineffective for failing to obtain his consent prior to conceding guilt to the escape offense. “[W]hen counsel concedes guilt to a charged offense without his client’s consent, counsel is presumed ineffective, and a defendant seeking relief through a rule 3.850 motion need not establish prejudice.” Harvey v. State, 28 Fla. L. Weekly S513, 2003 WL 21511339, — So.2d - (Fla. July 3, 2003) (citing United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)); Hinton v. State, 854 So.2d 254, 255 (Fla. 5th DCA 2003). This presumption of ineffectiveness applies only to the narrow situation in which a concession “entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Harvey, 28 Fla. L. Weekly S513, — So.2d - (emphasis omitted). Thus, an ineffective assistance claim based on conceding a charged offense focuses on two issues: (1) whether counsel conceded a charged offense so as to render the not guilty plea a nullity and (2) whether the defendant consented to the concession.

Kleppinger’s attorney admitted that he conceded the escape charge as part of his defense strategy. Therefore, the key issue is whether Kleppinger consented to the concession. The trial court heard testimony about the issue of consent at the evidentiary hearing on Kleppinger’s rule 3.850 motion. Counsel testified that he discussed his strategy with Kleppinger before trial, and Kleppinger agreed. Klep-pinger testified that he did not consent to the concession and that he objected to his counsel’s concession of escape before trial. The trial transcript supports Kleppinger’s assertion that he made a general objection to his counsel’s strategy before trial began. After hearing this testimony at the evidentiary hearing, the trial court failed to make a factual finding on the issue of consent. Instead, the court incorrectly denied relief based on lack of prejudice. However, ineffectiveness is presumed if Kleppinger did not consent to the concession. Prejudice is not an issue. Thus, a factual finding on the issue of consent is necessary, and we reverse for a factual finding.

In ground seven of his motion, Kleppinger alleges that his counsel was ineffective for not filing a motion to disqualify the trial judge. This ground was denied without an evidentiary hearing, based on the trial court’s determination that Kleppinger’s fear of bias was subjective.

A disqualification issue in the context of an ineffective assistance claim requires a defendant to allege both deficiency and prejudice. Goines v. State, 708 So.2d 656, 660 (Fla. 4th DCA 1998). The finding of prejudice turns on whether disqualification would have been required, not on whether the outcome of a new trial would have been different. Id. at 660. Disqualification is ordinarily required in any situation in which “the facts are reasonably sufficient to create a well-founded fear in the mind of the moving party that he will not receive a fair trial.” Id. at 659. A legally sufficient motion to disqualify must demonstrate “ ‘some actual,bias or prejudice so as to create a reasonable fear that a fair trial cannot be had.’ ” Downs v. Moore, 801 So.2d 906, 915 (Fla.2001) (quoting Dragovich v. State, 492 So.2d 350, 353 (Fla.1986)). In reviewing a motion to dis qualify, this court examines “ ‘whether the facts alleged would place a reasonably prudent person in the fear of not receiving a fair and impartial trial.’ ” Correll v. State, 698 So.2d 522, 524 (Fla.1997) (quoting Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983)).

Kleppinger’s case involved a brutal beating of a corrections officer during an escape attempt from the sixth story of the Sarasota County jail. Kleppinger alleges that his counsel was aware that the trial judge’s son was a corrections officer in Sarasota County at the time óf the incident and a friend of the victim and witnesses in Kleppinger’s trial. Kleppinger also alleges that other corrections officers taunted him, reminding him that the trial judge was “the father of one of their own.” A motion to disqualify based on these facts would have been legally sufficient. But cf. Tajero v. State, 403 So.2d 355, 361 (Fla.1981) (finding that a judge’s former employment as a police officer did not require disqualification in a murder trial where the victim was a police officer). The judge’s son was a personal friend and colleague of the State’s witnesses, including the victim. This is a specific fact about the trial judge’s personal bias or sympathy. It would have placed a reasonable person charged with the brutal assault of a friend of the judge’s immediate family in fear of not receiving a fair trial, especially considering the constant taunting by the corrections officers. Because Kleppinger’s motion for disqualification would have been legally sufficient, Kleppinger succeeds in stating a prima facie case of ineffective assistance of counsel. See Goines, 708 So.2d at 656 (finding that a defendant successfully established both deficiency and prejudice since failure to file a motion to disqualify renders a trial fundamentally unfair because of the appearance and risk of judicial bias). Therefore, an evidentiary hearing was necessary to determine whether counsel’s decision not to file a motion to disqualify was strategic. See Thompson v. Wainwright, 447 So.2d 383, 385 (Fla. 4th DCA 1984) (finding that a reasonable but calculated risk not to file a motion to disqualify a judge based on strategy does not constitute ineffective assistance). Accordingly, we reverse for an evidentiary .hearing on the issue of whether counsel’s decision not to file a motion to disqualify the trial judge was, strategic.

Reversed and remanded.

-NORTHCUTT and CASANUEVA, JJ., Concur.

      . Kleppinger said, "I do not agree with his strategy.”

      . The trial court may consider additional testimony at the evidentiary hearing if necessary to resolve this factual issue.