author: KELLY, Judge.

text:
    W.B.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D00-4715.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.

      James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

W.B.S. appeals from an order adjudicating him guilty of felony battery and revoking his community control. We agree with W.B.S.’s argument that the trial court’s granting of his motion for a judgment of dismissal barred later reconsideration of the felony battery charge. We reverse the adjudication of guilt as to that charge; however, we affirm the revocation of W.B.S.’s community control.

The State filed a petition alleging that W.B.S. had committed a delinquent act, felony battery, a third-degree felony, contrary to section 784.041, Florida Statutes (2000). Following the testimony at W.B.S.’s bench trial, the trial court granted defense counsel’s motion for a judgment of dismissal, finding that the State had failed to establish a prima facie case of felony battery. The case was bifurcated as to W.B.S.’s violation of community control.

Several weeks later, when the case was reconvened, W.B.S. was represented by a different lawyer. For reasons which are not apparent from the record, the trial court again heard argument relating to the felony battery charge. The court then found W.B.S. guilty of felony battery, adjudicated W.B.S. a delinquent child, and found him in wilful and substantial violation of his community control. The defense did not object to the court’s ruling on grounds that the charge had previously been dismissed.

In a nonjury trial, jeopardy attaches when the court begins to hear evidence. R.A.C. v. State, 736 So.2d 718 (Fla. 2d DCA 1999). Here, after the court heard all the evidence, it dismissed the felony battery charge without reserving any issue for later consideration. Jeopardy had already attached when the court dismissed the charge, and therefore, retraction of the dismissal violated W.B.S.’s double jeopardy rights. See Caldwell v. State, 803 So.2d 839 (Fla. 2d DCA 2001).

However, as the State argues, W.B.S. could still be found in violation of community control based on the facts establishing the felony battery. See Louis v. State, 797 So.2d 1281 (Fla. 4th DCA 2001). A violation of community control needs to be proven only by a preponderance of the evidence, rather than beyond a reasonable doubt. Smith v. State, 788 So.2d 1131 (Fla. 2d DCA 2001). Here, the State showed by a preponderance of the evidence that W.B.S. and two other boys attacked, beat, and kicked another boy. This evidence supported the finding that W.B.S. violated his community control due to a new law violation. Accordingly, we reverse the adjudication of guilt for felony battery and affirm the order finding W.B.S. in violation of community control.

Affirmed in part; reversed in part.

SALCINES and COVINGTON, JJ„ Concur.


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Robert EY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-537.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
    Robert Ey, Clearwater, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

We affirm the order denying Robert Ey’s motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Because Ey has raised an issue in his brief regarding the legality of his sentence for misdemeanor petit theft in circuit court case number 95-19712 which we cannot determine from this record, our affirmance of this case is without prejudice to any right he may have to file a facially sufficient motion pursuant to rule 3.800 regarding that sentence.

Affirmed.

STRINGER and SILBERMAN, JJ, Concur.


author: NORTHCUTT, Judge.

text:
    Bobby STALEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D02-857, 2D02-1325.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
    James Marion Moorman, Public Defender, and Deborah K. Bruckheimer, Assistant Public Defender, Bartow, for Appellant.
    Bobby Staley, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

On direct appeal, Bobby Staley challenges the revocation of his probation. He has also petitioned for a writ of habeas corpus, contending he is being illegally confined based on the erroneous revocation of his probation. We have consolidated the two proceedings. We reverse the order revoking probation that Staley challenges in his appeal. For this reason, his habeas petition is moot.

Staley was placed on probation for drug offenses in January 2000. In August 2000, he admitted violating his probation in exchange for a suspended sentence of two years’ imprisonment with the requirement that he spend two years on drug offender probation, subject to all the conditions of drug court. He signed a “drug court contract,” which included the special condition that he “agrees to waive his rights to an adversarial hearing or trial and will instead proceed directly to sentencing upon determination by the Drug Court Judge that [he] has failed to successfully complete the Drug Court Program.”

On December 22, 2001, Staley allegedly failed to deposit a urine sample at Southwest Florida Addiction Services, as he had been directed to do. An arrest/notice to appear and probable cause statement was issued on December 26, but no affidavit of violation of probation was ever filed. On that same day, the circuit court held a hearing, found that Staley had violated his probation, and sentenced him to two years’ imprisonment. The State presented no proof of the violation at this hearing. Indeed, no evidence was admitted; no one testified about what condition of probation Staley had violated. Although the written order revoking Staley’s probation stated that he had pleaded guilty to the violation, the transcript of the hearing contradicts this. Rather, it reflects Staley’s assertion that he had attempted to abide by all requirements of his drug offender probation, and that any violation was not willful.

Although a probationer accused of a violation is not entitled to the full panoply of rights guaranteed at a criminal trial, he is entitled to minimal due process, including

(a) written notice of the claimed violations ...; (b) disclosure ... of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses ...; (e) a ‘neutral and detached’ hearing body ...; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking. ...

Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Section 948.06, Florida Statutes (2001), implements these rights and requires that a court conduct a probation revocation hearing if the probationer disputes the charges. At the hearing, the State must prove the violation by a preponderance of the evidence. Stevens v. State, 823 So.2d 319, 320 (Fla. 2d DCA 2002).

Section 948.01(13), which authorizes drug offender probation, specifically states that such probation is “subject to revocation of probation as provided in s. 948.06.” Obviously, the procedure employed in this case failed to satisfy the statutory and constitutional requirements. Nevertheless, the State contends we must affirm. It maintains that the procedure was sufficient because Staley waived his right to an adversarial hearing in his drug court contract. We disagree for three reasons.

First, even if Staley validly made an advance waiver of his right to contest evidence that might be submitted against him in the future, that is all that he waived. He did not relieve the State of its burden to file an affidavit setting out the alleged violation. He did not relieve the State of its burden to prove the violation by competent evidence. Here, no affidavit specifying Staley’s alleged violation of any condition of probation was filed. See DeJesus v. State, 848 So.2d 1276 (Fla. 2d DCA 2003); Carmichael v. State, 834 So.2d 421 (Fla. 2d DCA 2003). The State presented no evidence and therefore failed to satisfy its burden of proof. See Cox v. State, 816 So.2d 160, 161 (Fla. 2d DCA 2002). Further, as no evidence was presented at the hearing, the court’s belief that Staley failed to give a required urine sample could only have been the result of hearsay from some unspecified extrajudicial source. Although hearsay may be introduced at a probation revocation hearing, a violation cannot be found based solely on hearsay. DeJesus; Grimsley v. State, 830 So.2d 118, 119-120 (Fla. 2d DCA 2002).

Second, again assuming that Staley could validly waive in advance his right to contest allegations that might be lodged against him in the future, any such waiver could only be enforced if it was knowingly, intelligently, and voluntarily given. See A.D.W. v. State, 777 So.2d 1101, 1104 (Fla. 2d DCA 2001). When the court placed Staley on drug offender probation, it discussed many terms of the drug court contract with him. It specifically told him that his urine would be tested; that he would be required to go to group therapy and a twelve-step program; and that if his urine was positive for drugs, or if he missed a meeting, that would be a violation of the contract. But the court never covered the clause that concerned the waiver of an adversarial hearing. Without an adequate inquiry from the court about this portion of the contract, we cannot find that Staley waived his right to a probation revocation hearing knowingly, intelligently, and voluntarily. See id.

Third, and more important, Staley simply could not have knowingly and intelligently waived his right to contest allegations against him without knowing what those allegations were. A probationer can certainly waive his rights to due process and to statutory procedures after they have been implicated. Thus, for instance, once an affidavit of violation has been filed the probationer may elect not to contest it. But we do not believe he can prospectively waive these rights.

Although we have not discovered any cases directly addressing this issue, we find the Florida Supreme Court’s decision in Stephens v. State, 630 So.2d 1090 (Fla.1994), instructive. There, the circuit court conditioned its acceptance of Stephens’s plea on his payment of restitution and on his agreement to waive his constitutional right not to be imprisoned for a debt if he failed to do so. Stephens v. State, 614 So.2d 19, 20 (Fla. 4th DCA 1993). Our supreme court acknowledged Stephens’s waiver, but held that “before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay, but has willfully refused to do so.” Stephens, 630 So.2d at 1091. In so holding, the supreme court approved the Third District’s decision in Hamrick v. State, 519 So.2d 81 (Fla. 3d DCA 1988).

Hamrick, like Stephens, had agreed, as a condition of probation, to make restitution regardless of his ability to pay. The Third District held that his purported waiver of the right to resist revocation was invalid and unconstitutional. The Stephens court quoted Hamrick for the proposition that incarcerating a defendant for failing to pay restitution without determining his ability to pay “ ‘subverts the requirements of due process and equal protection and the prohibition of imprisonment for debt.’ ” Stephens, 630 So.2d at 1091.

The purported waiver in Staley’s drug court contract would be equally subversive. It would permit his imprisonment without putting the State’s proof to the test of cross-examination. Staley himself would not even be permitted to contest the alleged violation or offer evidence in his own behalf. Thus, he would be subject to imprisonment without a hearing and without a court determination that the evidence against him was sufficient. We are mindful of the admonition of the Supreme Court, in a different context, in which it succinctly emphasized the purpose of the criminal justice system:

“[T]he twofold aim of (of criminal justice) is that guilt shall not escape or innocence suffer.” We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.

United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (citing Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). Likewise, the purported waiver in this case would impugn the integrity of the judicial system and undermine public confidence in the system.

We reverse the order revoking Staley’s probation.

CASANUEVA, J., and DANAHY, PAUL W., SENIOR JUDGE, concur.

      . Even in the administrative context, a prospective waiver of the right to notice and an opportunity to be heard before revocation of a business license has been rejected. In Gonzalez v. Department of Health & Rehabilitative Services, 418 So.2d 1128 (Fla. 1st DCA 1982), a pest control licensee stipulated that his license would be put on probation and that he waived the right to a chapter 120 hearing if he violated any statutes or regulations during the probationary period. When HRS revoked his license without a hearing, he appealed. In reversing for an evidentiary hearing, the First District construed his stipulation to "apply to allegations pending at the time the stipulation was signed, not to allegations which might arise in the future.” Id. at 1129. Because the pest control operator disputed the post-stipulation violations, the district court held he was entitled to an evidentiary hearing before the agency could suspend his license.


author: COVINGTON, Judge.

text:
    Steven Todd HENDRICKSON, Appellant, v. STATE of Florida, Appellee.
    No, 2D02-1304.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.

      Christopher N. Ligori, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

This appeal consolidates two cases. Steven Hendrickson appeals his convictions in case CF01-4604, for possession of methamphetamine with intent to deliver and driving while license suspended or revoked, and in case CF01-6838, for knowingly driving while license suspended or revoked and trafficking in amphetamine. We reverse in the first case and affirm in the second.

Hendrickson raises five issues in his appeal of case CF01-4604. We find merit in one.

On July 10, 2001, a confidential informant telephoned Hendrickson to set up a methamphetamine purchase as part of an undercover investigation. Two detectives hid in the bathroom at the informant’s house before Hendrickson arrived. They could not see the area in which the alleged transaction occurred. They waited in the bathroom for a short time after they heard Hendrickson’s knock on the door of the residence. Then, they walked through a hallway and into the dining room. From there they saw Hendrickson in the living room standing on the other side of a table from the informant.

Hendrickson was holding a clear plastic baggie containing suspected narcotics, and the detectives saw more baggies and suspected drug paraphernalia on the table. The officers searched Hendrickson and found no money. They took him into custody, and he was charged with trafficking in methamphetamines.

At trial, defense counsel’s theory of the case was that the confidential informant brought the drugs and set up Hendrick-son. Counsel intended to argue that the informant made it look like Hendrickson was trafficking because he wanted the police to resolve a pending charge against a friend of his in return for his help. One of the detectives testified Hendrickson told him he got the drugs from a woman who lived in another town. The other detective’s testimony conflicted, however. He testified that the first detective asked Hen-drickson whether he had gotten the drugs from the out-of-town woman but that Hen-drickson denied getting them from her.

Both detectives testified they had conducted only a cursory search of the confidential informant’s residence, where the controlled buy was to take place. They did not search the confidential informant’s person. One of the detectives testified the informant’s motive for participating was his hope that his friend’s charges would be resolved in return.

After the defense rested, the trial court granted the State’s motion in limine prohibiting defense counsel from arguing in closing that the drugs Hendrickson was accused of selling belonged to the confidential informant. The court ruled the inference that the drugs belonged to the informant was not reasonable. The court concluded that inferences had to be based on evidence. While there was no evidence that the drugs came from the informant, there was some evidence that Hendrickson brought them. The court relied on the one detective’s testimony that Hendrickson told him the drugs in the bag came from a woman who lived in another town.

Hendrickson argues the trial court erred in granting the motion in limine prohibiting this argument. We agree. Defense counsel is not limited to arguing defenses for which there is direct evidence. As the Fifth District wrote in Rogers v. State, 844 So.2d 728, 738 (Fla. 5th DCA 2003):

It [is] not Appellant’s burden to prove his innocence. A reasonable doubt might occur when evidence is lacking or when it is discredited. Therefore, a defense lawyer’s duty during closing is to challenge the sufficiency and credibility of the State’s proof. Counsel is free to argue these issues using all reasonable inferences that might be drawn from the evidence.

Here, defense counsel’s theory of the case was that there was a reasonable inference that could be drawn from the evidence. The detectives did not search the informant, despite the fact that it was standard procedure to do so. They did not witness the transaction, and their testimony conflicted as to whether Hendrickson admitted or denied having obtained the drugs he allegedly sold the informant from the out-of-town woman. Therefore, the trial court abused its discretion in ruling that the inference was unreasonable and improper to argue. See Goodrich v. State, 28 Fla. L. Weekly D1368, D1368, — So.2d —, —, 2003 WL 21340082 (Fla. 3d DCA June 11, 2003); cf. Teffeteller v. State, 439 So.2d 840, 845 (Fla.1983) (holding trial court has discretion to control counsel’s comments at trial, including determining whether argument is permissible).

The trial court thus went beyond its scope of authority in prohibiting the defense from arguing this theory in closing. See Goodrich v. State, 28 Fla. L. Weekly D1368, — So.2d —, 2003 WL 21340082 (Fla. 3d DCA June 11, 2003); Stockton v. State, 544 So.2d 1006, 1009 (Fla.1989). By preventing Hendrickson’s counsel from arguing his theory, the trial court violated Hendrickson’s right to effective assistance of counsel and “certainly hindered the defense counsel’s ‘last clear chance’ to persuade the jury that there may be reasonable doubt of the defendant’s guilt.” See id. at D1368-69, — - —, 2003 WL 21340082 (citing United States v. Kellington, 217 F.3d 1084, 1100 (9th Cir.2000)); cf. Herring v. N.Y., 422 U.S. 853, 865, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). It was the jury’s province, and not that of the trial judge, to determine the strength or weakness of defense counsel’s theory of defense. See Munez v. State, 643 So.2d 82, 83 (Fla. 3d DCA 1994) (citing Foster v. State, 464 So.2d 1214 (Fla. 3d DCA 1984)).

Accordingly, we reverse and remand for a new trial in case CF01-4604. We affirm the conviction in case CF01-6838 without discussion but note Hendrickson may have to be resentenced after retrial on case CF01-1604.

NORTHCUTT and CASANUEVA, JJ„ concur.


author: SILBERMAN, Judge.

text:
    Lukely RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2802.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
   SILBERMAN, Judge.

Lukely Riley appeals the denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. Because Riley’s motion adequately alleged a basis for DNA testing of certain items, and the limited record before us does not support the summary denial of the motion, we reverse.

In 1976, Riley was convicted of two counts of first-degree murder. During the trial, the State allegedly introduced into evidence several items found at the victims’ apartment, which was the scene of the crime, and at Riley’s apartment. In his rule 3.853 motion, Riley sought DNA testing of blood on the items, claiming that the testing will prove his innocence. In its response, the State claimed that the DNA evidence would not be admissible at trial, that DNA results would likely be unobtainable or contaminated due to the method of storage and natural degrading of the DNA evidence, and that the test results would not exonerate Riley. The trial court denied Riley’s claim and stated that DNA testing would not exonerate Riley and that there was an abundance of other evidence against Riley. The other evidence apparently included several eyewitness accounts observing Riley as being in possession of the murder weapon prior to the murders.

In order to state a facially sufficient claim for DNA testing, a defendant’s motion must include “a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received.” Fla. R.Crim. P. 3.853(b)(4). As to identity, Riley alleged significant problems with the eyewitness testimony. For example, he claimed that one witness observed him in his cell before picking him out of a line-up, suggesting that the identification was tainted, and he alleged that another eyewitness gave inconsistent descriptions of the perpetrator. Additionally, the corroborating evidence against Riley seems to be the items that he sought to have tested. Therefore, Riley’s motion sufficiently alleged that identity is a genuinely disputed issue. See Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2d DCA 2002).

Concerning exoneration, Riley alleged that a bloodstained tank-top shirt was found at his apartment and introduced at trial. He claimed that the State suggested during the trial that the shirt contained blood from the victims. He also asserted that blood samples from both victims are available for testing. Thus, the essence of his claim was that if DNA testing shows that the blood on the shirt does not belong to the victims, then the shirt would not be a piece of evidence linking him to the crime. Riley also sought testing of blood found on several items at the victims’ apartment. If DNA testing established that the blood does not belong to either victim or to Riley, the blood would be evidence suggesting that a third party was involved in the crime.

If DNA testing confirms Riley’s allegations, the results would create a reasonable probability that Riley would be acquitted because the only remaining evidence against him would be the eyewitness testimony. That testimony may not have been sufficient to convict Riley if DNA testing eliminated portions of the evidence against Riley and suggested that a third party was involved, especially in light of the alleged inconsistencies in the eyewitness testimony. Accordingly, we conclude that Riley sufficiently alleged that he would be exonerated by the DNA testing. See Knighten v. State, 829 So.2d 249, 252 (Fla. 2d DCA 2002).

The State argued that it did not claim at trial that the shirt contained the blood of the victims, but instead, the blood could have come from any person with type A blood. The State also contended that there was ample incriminating evidence including the testimony of witnesses who observed Riley with the murder weapon and who saw Riley break into the wrong apartment with the weapon. Because our record does not include the trial transcript and there was no evidentiary hearing on Riley’s motion, we are unable to determine how the shirt was used at trial and whether the State’s position concerning the shirt is correct. Although the trial testimony of the witnesses may serve to fully or partially refute Riley’s claims, because of the limited record before us our review is based on the factual allegations contained in Riley’s motion and the arguments presented by Riley and the State. Neither the trial court nor this court can address the factual discrepancies that exist between Riley’s allegations and the State’s response without considering the trial transcript or without the trial court conducting an evidentiary hearing.

Therefore, we reverse and remand for further proceedings. On remand, if the trial court determines that the trial transcript or other record documents conclusively demonstrate that identity is not an issue or that Riley would not be exonerated by DNA testing, the documents must be included in the record for appellate review. If the record does not refute Riley’s claim, then the trial court must conduct an evidentiary hearing to consider the merits of the claim and whether the evidence is in testable form. See King v. State, 808 So.2d 1237, 1240-41 (Fla.2002) (affirming the dismissal of a rule 3.853 motion when the trial court conducted a hearing at which custodial witnesses testified that the evidence to be tested no longer existed).

Reversed and remanded.

FULMER and DAVIS, JJ., Concur.

      . In the order denying relief, the trial court did not address the State's arguments that it is highly unlikely any DNA test results could be obtained and that the test results would not be admissible.


text:
    Robert Louis GIVENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3084.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Robert Givens appeals his judgment and sentence for failure to register as a sexual offender. He contends that the sexual offender registration and notification requirements are unconstitutional as a violation of due process and that application of the registration statute to him violates the Ex Post Facto Clause. We affirm.

Givens argues that the sexual offender registration and notification requirements in sections 943.0435 and 944.607, Florida Statutes (2001), violate procedural due process because he was not afforded a hearing to determine whether he was a danger to the public before being subject to the statutory requirements. After the parties filed their briefs, this court in Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003), held that the Florida Sexual Predators Act, section 775.21, Florida Statutes (2000), does not violate procedural due process and declined to follow Espindola v. State, 28 Fla. L. Weekly D222, — So.2d —, 2003 WL 118634 (Fla. 3d DCA Jan.15, 2003). Givens states in his brief that his argument is the same as in Espin-dola, and he relies on that case to support his position. In Milks this court recognized that the United States Supreme Court had recently held in Connecticut Department of Public Safety v. Doe, — U.S. —, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), that under a Connecticut sexual offender statute, procedural due process “did not entitle the defendant to a hearing to establish whether he or she was dangerous, as that fact was not material under the statute.” Milks, 848 So.2d at 1169. The relevant fact is whether the defendant has been convicted of a specific crime, and the defendant is entitled to procedural due process before that conviction is entered. See id.

Although Milks dealt with the sexual predator, not sexual offender, designation, we note that the sexual predator requirements are more onerous than the sexual offender requirements. Furthermore, the Fifth District has specifically held that the sexual offender registration and notification requirements do not violate procedural due process. See Johnson v. State, 795 So.2d 82, 89 (Fla. 5th DCA 2001). We agree and hold that Givens’ procedural due process rights were not violated.

Givens also contends that the sexual offender registration statute violates ex post facto principles because section 943.0435 was enacted after Givens began serving his sentence. Again, after the parties filed their briefs, the United States Supreme Court held in Smith v. Doe, — U.S. —, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), that the Alaska Sex Offender Registration Act is nonpunitive and that, therefore, its retroactive application does not violate the Ex Post Facto Clause. In addition, the First and Fourth Districts have held that section 943.0435 is procedural in nature and does not violate the Ex Post Facto Clause. See Freeland v. State, 832 So.2d 923 (Fla. 1st DCA 2002); Simmons v. State, 753 So.2d 762 (Fla. 4th DCA 2000). We agree and hold that the application of section 943.0435 to Givens does not violate ex post facto principles. Accordingly, we affirm Givens’ judgment and sentence for failure to register as a sexual offender.

Affirmed.

STRINGER, J., and THREADGILL, EDWARD F., Senior Judge, concur.


author: PER CURIAM.

text:
    Michael BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3361.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
   PER CURIAM.

Michael Brinson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, he raised five grounds of ineffective assistance of counsel. We affirm without discussion on four grounds, but we reverse and remand on the remaining ground.

Although Brinson framed his rule 3.850 motion as an ineffective assistance of counsel claim, he more properly alleges an illegal sentence, which is also cognizable pursuant to rule 3.850 and which we must correct if his allegations are sufficient. See Summers v. State, 747 So.2d 987, 989 (Fla. 5th DCA 1999). The trial court denied Brinson’s motion, finding that the record conclusively refuted Brinson’s rule 3.850 allegations. However, because that conclusion was based on an invalid interpretation of the statutory term “release,” see § 775.082(8)(a)(l), Fla. Stat. (1997), we reverse and remand for further proceedings.

On October 13, 1998, a jury convicted Brinson of robbery. The trial court sentenced him as a prison releasee reoffender (PRR) and a habitual felony offender (HFO) to thirty years in prison with the last ten years to be suspended and served on probation. He received a minimum mandatory sentence of fifteen years as a PRR.

In his motion, Brinson claimed that he did not qualify as a PRR because he did not commit his new offense within three years of being “released from a state correctional facility.” See § 775.082(8)(a)(l). He maintains he was originally released from prison on control release on August 9,1994, and committed the robbery offense on October 21, 1997. The trial court denied the motion, finding that even if Brin-son was correct as to the date of his initial release, he had been taken back into custody for an alleged violation of the terms of his conditional release in January 1995 and was last released on March 23, 1995, according to a Department of Corrections document. The trial court attached this document to the order denying Brinson’s motion.

In his rule 3.850 motion, Brinson contends that the word “release” in section 775.082(8)(a)(l) means actual release from a state prison sentence, not release from temporary confinement that happens to be in state prison. Cf. Girtman v. State, 617 So.2d 1168 (Fla. 5th DCA 1993) (holding that temporary custodial detention pending resolution by the Parole Commission of parole violation charge did not constitute “release from ... other commitment,” as used in habitual offender statute). Although the trial court read the word “release” to mean the last time Brinson was physically released from a state correctional facility, the Girtman analysis provides support for Brinson’s argument that the word “release” can be defined to mean only actual release from a state prison sentence. Where the language of a statute is susceptible of differing constructions, the language must be construed most favorably to the defendant. See § 775.021(1); Thomas v. State, 741 So.2d 1246 (Fla. 2d DCA 1999). In construing the statutory language here favorably to Brinson, the word “release” means actual release from a state prison sentence, not release from a temporary confinement that happens to be in state prison.

Accordingly, Brinson was not released from a prison sentence on March 23, 1995; he was released from temporary detention on that date while awaiting action of the Parole Commission. His actual release from a state prison sentence occurred on the date of his original release to control release status, which from the allegations and documentation presented would appear to be August 9, 1994. Because August 9,1994, was more than three years before Brinson’s October 21, 1997, robbery offense date, it would appear that Brinson does not qualify for PRR sentencing.

Because the record does not refute Brinson’s rule 3.850 allegations, the trial court erred in summarily denying his claim for relief. Accordingly, we reverse and remand for further proceedings. If, on remand, Brinson’s allegations regarding the date of his release and the nature of that release are substantiated, his PRR sanction is illegal and the trial court must delete the PRR designation and the minimum mandatory PRR term from Brinson’s robbery sentence. See Valdes v. State, 765 So.2d 774 (Fla. 1st DCA 2000). If, however, Brinson’s allegations as to his release date and the nature of that release are not substantiated, the trial court should enter an appropriate order consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

DAVIS, KELLY, and WALLACE, JJ., Concur.

      . The trial court also attached a copy of a page from the Department of Corrections' web site showing the dates during which Brinson was in the custody of the Department. This was not a part of the record and is not evidence that would support the trial court's findings. However, the dates cited in the attachment do show that Brinson was released on August 9, 1994, and was taken back into custody in January 1995.


text:
    Robert WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5179.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
   WHATLEY, Judge.

Robert Warren appeals the trial court’s order dismissing his motion filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes (2002). We reverse the trial court’s order and remand for further proceedings.

The trial court found that Warren’s motion for postconviction DNA testing failed to comply with the procedural requirements of rule 3.853 because the motion “does not demonstrate or allege that the evidence is still available.” A postcon-viction motion for DNA testing is governed by rule 3.853 and section 925.11. Both the rule and the statute require that the mov-ant include a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it was originally obtained. Fla. R.Crim. P. 3.853(b)(1); see also § 925.11(2)(a)(l). Neither the rule nor the statute requires that the movant allege that the evidence is still available to be tested. The motion must be sworn to by the movant, and whether or not the evidence is still in existence is likely to be beyond the knowledge of the movant, especially where, as here, the movant is incarcerated.

In his motion, Warren alleged, inter aha, that hair and semen samples were taken from the person of the victim by Bayfront Medical Center’s Rape Crisis Unit, the St. Petersburg Police Department, or the Pinellas County Sheriffs Office. He further alleged that the evidence was then turned over to the Florida Department of Law Enforcement or the Federal Bureau of Investigation for forensic testing. Pursuant to the requirements of the rule and the statute, Warren is obligated to provide information regarding the location of the evidence only if he has knowledge of said location. It would be preferable that if a movant has no knowledge regarding the location of the evidence, he so state in the motion. Warren listed several agencies that might have had, or might have, possession of the evidence in question, and we conclude that although inartfully drafted, Warren’s motion satisfied the requirement that he provide, if known, “the present location or the last known location of the evidence.”

Because we conclude that Warren also complied with the other requirements of rule 3.853 and section 925.11, and therefore filed a facially sufficient motion for postconviction DNA testing, we reverse the trial court’s order and remand with instructions to the trial court to order the prosecuting authority to respond to the motion. See Fla. R.Crim. P. 3.853(c)(2).

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.


text:
    In the Interest of A.T. and T.T., minor children, G.D.B., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 2D02-5602.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
    Norman A. Palumbo, Jr., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Petitioner.
   PER CURIAM.

We treat this appeal from a nonfinal order as a petition for writ of certiorari and dismiss the petition.

Petition dismissed.

WHATLEY, STRINGER, and SILBERMAN, JJ., Concur.


author: EDWARD F. THREADGILL, Senior Judge. STRINGER, Judge,

text:
    Anita F. DENT, Appellant, v. Robert T. DENT, Appellee.
    No. 2D03-699.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
    Edward C. McFadden, Jr., Tampa, for Appellant.
    Neil E. Polster, Tampa, for Appellee.
   EDWARD F. THREADGILL, Senior Judge.

Anita F. Dent, the wife, appeals a nonfi-nal order on temporary relief in an action for dissolution of marriage against the husband, Robert T. Dent. We affirm but require the circuit court to clarify that this temporary order is without prejudice to the parties’ rights to revisit the issues at the final hearing.

In November 2001, the parties entered into an agreement for temporary support. At that time, the spousal and child support was calculated based upon the husband’s net monthly income of $2,962.89. The agreement required the husband to pay the wife, who is unemployed and at least partially disabled, $1,000 per month in temporary alimony and $440 per month in temporary child support for one child.

Exactly one year later, the wife requested an increase in the temporary support awards. She alleged that the husband’s income and the expenses for herself and the child had increased. She indicated that she had exhausted all of the savings in her possession at the time of the parties’ separation. She also asked for permission to sell an inoperable 1964 Chevrolet Malibu automobile in order to obtain a rehable form of transportation for herself and the minor child.

At the hearing on this motion, the circuit court questioned the parties’ delay in setting a final hearing in the dissolution proceeding. The court was understandably frustrated at the thought of having a lengthy hearing on temporary support only to have to address the same issues in a final hearing. Therefore, the court refused to alter the monthly amount of temporary support at that time. Instead, the court entered an order requiring the parties to immediately set the matter for final hearing and prescribing certain stopgap measures to protect the parties and their assets pending the final hearing.

This order effectively provides the wife and child only $1,440 per month in temporary support plus $93 per month toward the child’s automobile insurance premium, while allowing the husband to retain approximately $2,699 per month in net income. If this order were to be afforded any level of finality or if it could not be revisited at the final hearing, we might be compelled to reverse. In this case, however, the circuit court specifically anticipated that these issues could be better addressed in a final hearing. We cannot conclude that the circuit court abused its discretion in fashioning the temporary relief contained in this order in light of its specific intent to further address the issues at a final hearing that it anticipated would be held in the immediate future.

Although the transcript evinces the circuit court’s intent to more fully address these issues at a final hearing, the written order entered on the wife’s request does not specify that the court’s stopgap measures are without prejudice to these issues being revisited during a final hearing. This court has previously observed that generally, “absent compelling circumstances,” an order for temporary support is “final during its lifespan.” See Kraus v. Kraus, 749 So.2d 513 (Fla. 2d DCA 1999) (citing with approval Warner v. Warner, 692 So.2d 266 (Fla. 5th DCA 1997)); see also Israel v. Israel, 824 So.2d 953 (Fla. 4th DCA 2002). As such, a circuit court that anticipates that its temporary support orders may need to be refined or adjusted in a final hearing should specify in the order that the provisions are without prejudice and may be modified by the court during the proceedings or in a final hearing. We therefore remand this case with instructions that the circuit court amend the order on appeal to specify that its provisions are without prejudice to the parties’ claims in a final hearing and that the court reserves jurisdiction to modify the support awards.

Turning to the portion of the temporary order that granted the wife’s request to sell the 1964 Chevrolet Malibu, we note that chapter 61, Florida Statutes (2002), does not authorize a court to make a partial distribution of marital assets pri- or to a final hearing. See, e.g., § 61.052(3), Fla. Stat. (2002); see also Kalmanson v. Kalmanson, 796 So.2d 1249 (Fla. 5th DCA 2001) (reversing order granting partial equitable distribution); cf. Turnage v. Turnage, 653 So.2d 485 (Fla. 5th DCA 1995) (reversing order distributing interest in profit-sharing plan entered before cause was at issue and when trial court lacked complete understanding of all the parties’ marital assets). However, section 61.052(3) permits the circuit court to make appropriate orders to provide for support and to preserve the property of the parties. The circuit court was thus authorized to order the sale of the vehicle. This provision of the order on appeal, however, should not be interpreted as finally resolving any issue as to the appropriate disposition of this asset. The final hearing should address whether this asset is nonmarital or marital property and how the proceeds received from the sale are to be credited in a final equitable distribution scheme.

We therefore affirm the order on appeal but remand for the circuit court to clarify that the order is without prejudice to all claims for support and distribution of assets that the parties may present in a final hearing.

SILBERMAN, J., Concurs.

STRINGER, J., Concurs specially.

STRINGER, Judge,

Concurring.

I fully concur with the majority’s decision in this case. I write only to question some of the broad language in Kraus, 749 So.2d 513, according a level of “finality” to temporary relief orders in domestic relations cases.

Temporary support orders are interlocutory in nature. Stock v. Stock, 693 So.2d 1080, 1086 (Fla. 2d DCA 1997); Moliver v. Moliver, 200 So.2d 613, 614 (Fla. 3d DCA 1967). It is well settled that courts retain authority over interlocutory orders and may change, modify or set aside such orders until the entry of a final judgment. Young v. Young, 65 So.2d 28 (Fla.1953); Whitaker v. Wright, 100 Fla. 282, 129 So. 889 (1930); Stock, 693 So.2d at 1086; Danner v. Danner, 206 So.2d 650 (Fla. 2d DCA 1968); Moliver, 200 So.2d 613; see also Wayno v. Wayno, 756 So.2d 1024, 1025 (Fla. 5th DCA 2000) (Cobb, J., concurring) (extending this “traditional concept” to apply to court’s interlocutory approval of parties’ agreement); cf. Pub. Health Trust of Dade County v. Diaz, 529 So.2d 682 (Fla.1988) (noting that a contrary position would prohibit trial court from correcting errors that would be correctable on appeal). As such, no party obtains a vested interest from a temporary support order. Duss v. Duss, 92 Fla. 1081, 111 So. 382, 385 (1926). The circuit court should thus be permitted to adjust temporary support orders in domestic relations cases when the circumstances merit it.

This rule of law reflects practical policy concerns inherent in temporary support orders. A temporary support order is often required at the beginning of the dissolution action, before the parties have had an opportunity to complete discovery. Given the urgency of some of these matters, the order is often entered based upon an abbreviated hearing and limited evidence. The court often has little more than the parties’ financial affidavits to guide it in calculating support. These forms can be complicated to fill out accurately, particularly for pro se parties or parties who are unable to review the affidavit with their counsel in detail prior to the temporary hearing. As the case progresses, the developing evidence or changes in the parties’ financial circumstances may reveal inequities or errors in the prior support awards that require adjustment in the final analysis.

Recently, however, cases have suggested that temporary orders should enjoy a higher degree of “finality” than has been previously afforded to them. In Kraus, the wife was initially awarded $2,400 per month in temporary alimony pursuant to an agreement ratified by the court. The circuit court thereafter entered an interlocutory order granting the wife’s request to increase alimony by increasing the award by $800 per month retroactive to the date she first filed for temporary relief. Kraus, 749 So.2d 513. This court reversed, stating:

Initially, we observe that generally even an order of temporary alimony is final during its lifespan. Not only should the parties be entitled to rely upon the court’s order, but, additionally, the trial court should be required to use its resources only once on the identical issue. Were this not so, a litigant would continuously bombard the courts with new requests based solely upon facts that the court already considered for its ruling. Even temporary awards are entitled to a measure of finality absent compelling circumstances that we do not find in this case.

Id.; see also Israel v. Israel, 824 So.2d 953 (Fla. 4th DCA 2002) (citing Kraus and holding that trial court errs in awarding an increase in child support retroactive to a time during which a temporary order was in place).

Kraus discusses two concerns raised by liberally permitting modifications of interlocutory orders. First, a legitimate due process concern would be raised if a party was unaware that the court would be reconsidering the temporary awards in a subsequent hearing. See, e.g., Wright v. Wright, 654 So.2d 674 (Fla. 5th DCA 1995). Thus, although a court is free to reconsider its interlocutory orders and .the parties do not have a vested interest in the content of the order, the parties must have notice if those issues are to be revisited and an opportunity to be heard in this regard. Id. Generally, this would be accomplished in a pretrial memorandum or order. If it is not, it would appear to me that the aggrieved party would need to object on this basis, and that generally the proper remedy would be to require a continuation of the proceedings, not the denial of appropriate relief.

The second concern addressed in Kraus is that the court not repeatedly use its resources to address identical issues on more than one occasion. Certainly, if the evidence presented at a temporary hearing is identical to the more developed evidence presented at a final hearing, and the provisions of the final judgment do not affect the financial positions of the parties, a circuit court would be justified in refusing to change the temporary awards of support. However, I would not deny a circuit court the discretion to revise temporary support awards when the court believes the circumstances merit it. Moreover, I fear that affording a temporary support order any level of finality -will increase temporary support litigation, not lessen it. For example, if, after a temporary support award is entered, the financial positions of the parties change or new evidence on those positions is discovered, the party who would benefit from a modification of the temporary award will be required to immediately file a motion to modify the support, or risk losing the right to benefit from the changes. This could result in additional motions and temporary hearings over matters that were traditionally reserved for resolution in a final hearing.. This additional litigation before the circuit court could also increase the number of interlocutory appeals of temporary support orders. Moreover, if these orders are considered “final” or binding upon the court in a final hearing, this court may have to subject them to a more rigorous standard of review.

Despite the language in Kraus, I believe that a circuit court judge in a domestic relations case retains the discretion to adjust temporary support orders in a final hearing when the circumstances merit it, provided that the parties have received notice and an opportunity to be heard on the issue. The presiding circuit court judge is in the best position to know what considerations were taken into account in the initial order, and whether subsequent developments in the case require an adjustment to be made in the final judgment.

      . I note that Kraus and Israel appear to conflict with Allison v. Allison, 605 So.2d 130 (Fla. 4th DCA 1992), and Burton v. Burton, 216 So.2d 480 (Fla. 4th DCA 1968), both of which held that a court could relieve a husband of an arrearage that had accrued based upon a temporary alimony award.


text:
    Gloria BRYANT, Petitioner, v. STATE of Florida, Respondent.
    No. 2D03-1197.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.

      Julianne M. Holt, Public Defender, and Theda R. James, Assistant Public Defender, Tampa, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz Carino, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Gloria Bryant petitions this court for a ■writ of habeas corpus, alleging illegal confinement as a result of a judgment that adjudicated her guilty of direct criminal contempt and sentenced her to five days in the county jail. By previous unpublished order, we temporarily stayed the trial court’s judgment and sentence and directed Ms. Bryant’s immediate release pending further review of the petition. We now grant the petition and vacate the judgment and sentence.

The following facts are recited in the trial court’s written judgment:

On March 18, 2003, GLORIA BRYANT, engaged in direct contempt of court by screaming and shouting foul, abusive and other language disrespectful of the Court and those assembled while standing at or directly near the entrance to Courtroom 29 and while Court was in session in Courtroom 29. Such language was clearly heard in the courtroom and disrupted the on-going trial.

Ms. Bryant argues that her conduct did not constitute direct criminal contempt because it occurred outside the actual presence of the judge and there is no evidence that her words were directed at the court or intended to interrupt or hinder judicial proceedings. We agree.

Direct criminal contempt is governed by Florida Rule of Criminal Procedure 3.830 which provides that “[a] criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.” As we explained in Kelley v. Rice, 800 So.2d 247 (Fla. 2d DCA 2001), this category of contempt, which allows summary punishment, is a narrow exception to the constitutional requirement that the full panoply of due process rights must be afforded to a person prior to conviction and imprisonment. This exception includes

[o]nly charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent demoralization of the court’s authority before the public.

800 So.2d at 252 (internal quotation marks omitted) (quoting In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948)).

Ms. Bryant’s conduct did not meet the definition of direct criminal contempt. Although the trial judge heard a disturbance, it was necessary for the State to produce a witness to describe the events that occurred outside the courtroom as well as the exact words stated by Ms. Bryant. At no time did Ms. Bryant exhibit any inappropriate behavior or speech inside the courtroom. Her words were not directed at the judge or the judicial proceeding over which he was presiding. In fact, there is no evidence that Ms. Bryant was aware a judicial proceeding was in progress behind the closed doors of the courtroom, nor is there any evidence that her words were intended to disrupt any judicial proceeding. The sole witness presented by the State testified that Ms. Bryant had been sitting calmly in a chair in the hallway and became agitated when she was given her son’s belongings after he apparently had been taken into custody. Ms. Bryant stood up and started to walk off. The witness repeated several profane statements made by Ms. Bryant as she walked away and explained that the more she walked and the further she got, the louder she got.

Underlying our decision in this case and the law that must be applied is the recognition that “the power to punish for contempt should be cautiously and sparingly exercised.” See Demetree v. State, 89 So.2d 498, 501 (Fla.1956). We also recognize that trial judges must be allowed to control their courtrooms and protect the dignity of the proceedings over which they preside. However, the power of contempt is not the only tool at the judges’ disposal. It is not uncommon for persons in a courthouse to become agitated or disruptive. In most situations, a bailiff or law enforcement officer can provide the necessary assistance to quiet the person or escort them from the building and quickly dispel any disruption of proceedings.

For the reasons explained in this opinion we lift the temporary stay, grant the petition for writ of habeas corpus, and direct that the judgment and sentence for direct criminal contempt be vacated.

FULMER, STRINGER, and SILBERMAN, JJ., concur.

      . In its response to the petition, the State submitted three affidavits that are dated the day after the contempt proceeding. These affidavits were not part of the testimony presented at the contempt proceeding and, therefore, have not been considered in our review of this matter.


text:
    Ronald W. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1199.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Ronald W. Washington, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s 3.800(a) motion for additional county jail credit. The allegations of his motion are insufficient to show entitlement to additional credit to be awarded by the trial court. The Department of Corrections (“Department”) is responsible for computing credit for time spent in county jail after sentencing. See § 921.161(2), Fla. Stat. (2002). If the post-sentence credit is incorrect, appellant should pursue his administrative remedies. If he is not satisfied after exhausting his administrative remedies, then he can file a petition for writ of mandamus in the circuit court in the county in which he is incarcerated. See Grant v. State, 837 So.2d 1075 (Fla. 4th DCA 2003); Jefferson v. State, 830 So.2d 195, 197 (Fla. 4th DCA 2002); Colson v. State, 830 So.2d 194 (Fla. 4th DCA 2002); Killings v. State, 567 So.2d 60 (Fla. 4th DCA 1990).

Our affirmance in this case is without prejudice to pursue appropriate remedies.

AFFIRMED.

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Richard M. CROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0225.
    District Court of Appeal of Florida, First District.
    July 30, 2003.
    Richard M. Cross, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. See Adams v. State, 801 So.2d 145 (Fla. 1st DCA 2001); Zanzarella v. State, 730 So.2d 704 (Fla. 2d DCA 1998).

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    John Paul CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1347.
    District Court of Appeal of Florida, First District.
    July 30, 2003.

      Appellant John Paul Clark, pro se.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his Rule 3.800(a) motion for jail credit. We reverse because the trial court failed to attach to its order portions of the record conclusively refuting the appellant’s claim. Chitty v. State, 834 So.2d 909, 910 (Fla. 1st DCA 2003); Collins v. State, 835 So.2d 373 (Fla. 1st DCA 2003). The appellant presented a facially sufficient claim for jail credit under Rule 3.800(a) by providing the dates for which he is seeking credit, the date of his sentence, and alleging that his jail cards show that he is entitled to additional credit. See State v. Maneino, 714 So.2d 429, 433 (Fla.1998); Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994). In support of its denial of the appellant’s motion, the trial court attached a “Time Served Calculator” apparently prepared by the court clerk. However, the “Time Served Calculator” and accompanying annotations, attached to the trial court’s order were merely clerk’s notes and are insufficient to conclusively refute the appellant’s claim. Collins, 835 So.2d at 373; Mayo v. State, 825 So.2d 1006 (Fla. 4th DCA 2002).

The jail cards provided by the appellant showed an entitlement to 197 days of jail credit while the “Time Served Calculator” suggested that the appellant was entitled to only 161 days. The apparent discrepancy arose from one of three separate periods of jail time which ran from December 11, 2001, to April 11, 2001. On March 7, 2001, the appellant was sentenced to community control but he remained in jail until April 11, 2001. The clerk noted upon the “Time Served Calculator” that he “believed” that the county jail time from March 7, 2001, to April 11, 2001, was “for the county jail sentence [appellant] was serving in case 00-1533.” However, the appellant’s jail card makes no reference to case number 00-1533. Instead, that jail card refers only to the case in which the appellant now seeks jail credit.

The trial court’s reference to the clerk’s belief, as well as the “Time Served Calculator,” falls short of meeting the requirement of attaching portions of the record conclusively refuting the appellant’s facially sufficient claim. Failure to attach portions of the actual record or the sentencing order in case 00-1533 precludes this Court from conducting meaningful appellate review. Thomas, 707 So.2d at 1189; Corp v. State, 698 So.2d 1349, 1350 (Fla. 1st DCA 1997). We accordingly reverse and remand for the trial court to support its denial with record attachments or grant the relief sought to the extent the appellant’s jail cards show entitlement to relief. If an evidentiary hearing is required, the trial court should treat the appellant’s sworn and timely claim as a Rule 3.850 motion. See Atwood v. State, 765 So.2d 242, 243 (Fla. 1st DCA 2000).

REVERSED and REMANDED.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    David H. DOTY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1889.
    District Court of Appeal of Florida, First District.
    July 31, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the appellant is entitled to additional prison credit, we reverse.

On March 21, 1989, the appellant was convicted of three counts of burglary and three counts of grand theft and was sentenced to concurrent terms of five years’ imprisonment for burglary and concurrent terms of five years’ probation for grand theft. On July 17, 2000, the appellant was convicted of violating his probation, the trial court revoked his probation, and the trial court resentenced the appellant to three years’ probation. On February 14, 2002, the appellant was convicted of violating his probation a second time and was sentenced to five years’ imprisonment. The trial court did not grant the appellant any prison credit because the appellant had not served any time in prison on the grand theft charges.

The appellant’s original written judgment and sentence and his scoresheet show that the appellant’s offenses were scored together. When a trial court sentences a probationary term on some of the appellant’s convictions consecutively to an incarcerative term on the appellant’s other offenses, the appellant is entitled to credit for the time he served in prison on the incarcerative portion of his sentence against the total sentence imposed after revocation of probation on the probationary portion of his sentence. Hodgdon v. State, 789 So.2d 958, 962-963 (Fla.2001); Veach v. State, 814 So.2d 1124, 1125 (Fla. 1st DCA 2002).

We therefore reverse the trial court’s summary denial of the appellant’s motion to correct his illegal sentence and remand for the trial court to grant the appellant the proper amount of prison credit.

REVERSED and REMANDED.

WOLF, BROWNING, and HAWKES, JJ., concur.


text:
    Terence C. ATKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0444.
    District Court of Appeal of Florida, First District.
    July 31, 2003.
    Petitioner, pro se.
    Charlie Crist, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. However, pursuant to the “mailbox rule,” the motion was filed within 60 days of this court’s issuance of mandate on petitioner’s direct appeal. Accordingly, the motion was timely. See Jolly v. State, 803 So.2d 846 (Fla. 1st DCA 2001). Thus, the trial court had jurisdiction to consider petitioner’s motion on the merits, and its failure to do so is a departure from the essential requirements of the law. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

Accordingly, we grant the petition for writ of certiorari, vacate the order, and remand with directions to consider petitioner’s motion on its merits.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Richard HOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0669.
    District Court of Appeal of Florida, First District.
    July 31, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s denial of his motion to correct his illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which alleged that his sentence of imprisonment for violation of probation in case number 93-1274 is illegal because the trial court had not previously orally pronounced a term of probation in that case. Because the appellant’s sentence violates double jeopardy, we reverse.

On March 14, 1995, the appellant was sentenced to five years’ imprisonment on count one to be followed by five years’ probation on counts two and three in case number 93-1274. On March 2, 1998, the appellant violated his probation on counts two and three in case number 93-1274 and in various other cases. At the sentencing hearing, the trial court orally pronounced the following sentence:

the Court will adjudicate you, Mr. Hood, guilty on all counts and place you in the department of corrections for a period of five years on each of the felony counts to run concurrently, followed by — excuse me, not on all of them, but let’s say five years in the department of corrections in all counts of 93-1274, that case, followed by five years of probation on each of the other felony counts, third degree felony counts, to run concurrently. So five years in the department of corrections on all counts, running concurrently, in 93-1274, and all of the remaining felony counts will be probation for five years following the prison sentence.

Thus, the trial court sentenced the appellant to five years’ imprisonment on all counts in case number 93-1274 and to five years’ probation on all other counts in all other cases. However, the appellant’s written judgment and sentence stated that he was sentenced to five years’ imprisonment followed by five years’ probation on count one and to five years’ probation with 262 days of jail credit on count two in case number 93-1274. The appellant completed his term of incarceration, but he violated his probation. On March 22, 2001, the appellant’s probation was revoked and he was sentenced to another five years’ imprisonment on case number 93-1274. The appellant now alleges that his March 22, 2001, sentence in case number 93-1274 violates double jeopardy because he had completed his sentence when he completed his term of incarceration.

Double jeopardy claims are cognizable under rule 3.800(a) when such errors are apparent on the record. See Hopping v. State, 708 So.2d 263, 265 (Fla.1998); Jackson v. State, 650 So.2d 1026, 1027-28 (Fla. 1st DCA 1995); Valdes v. State, 765 So.2d 774, 776 (Fla. 1st DCA 2000). The appellant is correct that he cannot receive an additional sentence after fully satisfying his original sentence. Once the appellant’s 1998 sentence to five years of incarceration was orally imposed, the trial court could not change it for a more onerous sentence, and the trial court’s oral pronouncement controlled over the written sentence. See Ashley v. State, 850 So.2d 1265 (Fla.2003). Because the appellant was orally resentenced only to prison in case number 93-1274, the written judgment adding a term of probation was legally void. Consequently, the appellant could not be sentenced to a term of imprisonment for violating a term of probation that was never imposed.

We therefore reverse the trial court’s summary denial of the appellant’s motion to correct his illegal sentence and remand for the trial court to vacate the appellant’s sentence in case number 93-1274.

REVERSED and REMANDED.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Richard J. HAINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0814.
    District Court of Appeal of Florida, First District.
    July 31, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the summary denial of his motions filed pursuant to Florida Rule of Criminal Procedure 3.800(a), by which he sought jail and prison credit. Because appellant’s claims appear to be facially sufficient and are not refuted by the record, we reverse.

Appellant was originally sentenced, pursuant to a single scoresheet, in case numbers 94-0011, 93-0177, 93-0184, 94-0007, and 94-0019. In case number 94-0011, he received three years of incarceration to be followed by ten years of probation. In the remaining cases, he received five-year probationary terms, to run concurrent with his probation in case number 94-0011. Appellant subsequently completed the in-carcerative portion of his sentence, and then violated probation. He was sentenced to concurrent four-year incarcera-tive terms in all cases.

Appellant’s jail-credit claim is facially sufficient because he alleges that he was arrested on these cases on September 4, 2001; held in the Suwannee County Jail from that arrest date until November 11, 2001, thus serving 59 days in jail; and sentenced on July 18, 2002, without receiving credit for such time. See State v. Mancino, 714 So.2d 429, 433 (Fla.1998); Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994). While the trial court stated that appellant had already been awarded an additional 56 to 62 days of jail credit (to which he was not, in fact, entitled) in all of these cases in response to an earlier motion to correct an illegal sentence, it failed to attach to its order any records demonstrating either that such credit was for the same dates or that appellant was not otherwise entitled to the credit.

Appellant’s claim for prison credit is also facially sufficient as to case number 94-0011 as a straight prison-credit claim because he alleged that he had served 987 days in prison before his release to probation on the probationary split sentence, and that his sentencing paperwork would show his entitlement to relief. See Smith v. State, 816 So.2d 158, 158 (Fla. 2d DCA 2002). Defendants are entitled to prison credit for time previously served when they violate the probationary portion of a split sentence. See Layman v. State, 787 So.2d 44, 45 (Fla. 2d DCA 2001). Appellant’s claim to 987 days of prison credit, pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), for each offense in the remaining case numbers is facially sufficient because he was originally sentenced, using a single scoresheet, to incarceration followed by terms of probation and, upon revocation of probation, all sentences were made concurrent. See Burnett v. State, 745 So.2d 1043, 1043-44 (Fla. 2d DCA 1999); Singer v. State, 679 So.2d 1274, 1275 (Fla. 2d DCA 1996); Campbell v. State, 631 So.2d 390, 390-91 (Fla. 1st DCA 1994).

There is some indication in the record that appellant may have waived his right to jail and prison credit as part of a plea agreement. However, the record is inadequate to establish conclusively that such a waiver occurred. Defendants may waive entitlement to previous jail or prison credit. See Griffin v. State, 838 So.2d 1218, 1220 (Fla. 3d DCA 2003); State v. Richardson, 766 So.2d 1111, 1112 (Fla. 3d DCA 2000). However, in the absence of such a waiver, the failure to award credit results in an illegal sentence. See Beshara v. State, 736 So.2d 30, 31 (Fla. 4th DCA 1999). Such a waiver will not be presumed. See Robinson v. State, 827 So.2d 345, 345 (Fla. 4th DCA 2002); Reed v. State, 810 So.2d 1025, 1026-27 (Fla. 2d DCA 2002); Wells v. State, 751 So.2d 703 (Fla. 1st DCA 2000). Accordingly, we reverse and remand. On remand, the trial court may either award additional jail and prison credit to which it concludes appellant is entitled, or attach to its order again denying relief those portions of the record which demonstrate conclusively that appellant is not entitled to relief.

REVERSED and REMANDED, with directions.

KAHN, WEBSTER and POLSTON, JJ., concur.


author: ERVIN, J. BENTON, J.,

text:
    Guillermo MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1817.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2003.

      Nancy A. Daniels, Public Defender, Ed Harvey, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   ERVIN, J.

In this direct criminal appeal, appellant, Guillermo Martinez, contends the trial court erred in failing to enter a written order finding him competent to proceed. See Fla. R.Crim. P. 3.212(c)(7)(2002) (“If, at any time after such commitment, the court decides, after hearing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed.”). The record shows that appellant was adjudicated incompetent, placed in a mental institution, and subsequently released therefrom based on staffs opinion that he no longer met the criteria for involuntary hospitalization. After his counsel represented to the court that appellant was competent to proceed, the judge responded, “All right, sir.” The judge then accepted appellant’s plea and sentenced him. We affirm appellant’s conviction and sentence, but “we find it necessary to remand for entry of a nunc pro tunc order finding appellant competent to stand trial.” White v. State, 548 So.2d 765, 768 (Fla. 1st DCA 1989).

In reaching our decision, we have not overlooked the dissent’s assertion that the sentence should be affirmed summarily without remand for a written order, because appellant had entered a guilty plea without expressly reserving a legally dis-positive issue, as required by section 924.051(4), Florida Statutes (2000), enacted as part of the Criminal Appeal Reform Act of 1996. Chapter 96-248, § 4, at 954-55, Laws of Fla. In the case at bar, appellant did not preserve the issue, nor did he move to withdraw the plea. Nevertheless, we do not understand that the pertinent provisions of the Act dispossess this court from jurisdiction to remand to the trial court for the sole purpose of memorializing in writing an oral finding made by the court. The judgment and sentence remain intact. The command of the law is honored requiring that no defendant, previously adjudicated incompetent, shall thereafter be forced to stand trial unless he or she is adjudged competent to proceed.

Appellant’s failure to reserve the right to appeal does not divest this court of jurisdiction over the appeal. In State v. Jefferson, 758 So.2d 661, 664 (Fla.2000), the court explained:

We find it is clear from the language of section 924.051(8) that the Legislature intended to condition reversal of a conviction on the existence of either an error that was preserved and prejudicial or an unpreserved error that constitutes fundamental error. However, we do not find from the statutory language utilized that the Legislature clearly intended to limit the appellate courts’ subject matter jurisdiction in the area of criminal appeals.

As Jefferson and Maddox v. State, 760 So.2d 89 (Fla.2000), make clear, the provisions of section 924.051 were designed with the object of limiting appeals relating to potentially reversible errors in convictions that had not been timely preserved. In fact, the stated goal of the statute was “to ensure that all claims of error are raised and resolved at the first opportunity.” § 924.051(8), Fla. Stat. (2000). We are simply not confronted with the type of error contemplated by the Criminal Appeal Reform Act, because, as stated, the judgment and sentence are unaffected by our remand for the purpose only of clarifying the court’s adjudication of competency, which it should have determined before it accepted the plea, entered judgment, and pronounced sentence.

If we understand the dissent correctly, it appears to say that because no competency hearing was held, the lower court’s statement, “All right, sir,” after defense counsel informed the court that two doctors had concluded that appellant was competent to proceed, should not be construed as an oral determination of competency; hence, there was no need to formalize that statement in writing. Neither the defendant nor the state has contended on appeal that such statement was anything less than a finding of competency. Indeed, we will not presume that the court acted contrary to the dictates of the law by declining to make such finding once it was aware of the prior adjudication of incompetency.

AFFIRMED, but REMANDED for further consistent proceedings.

WOLF, C.J., CONCURS; BENTON, J., CONCURS in affirmance but dissents from remand.

BENTON, J.,

concurring in affirmance, but dissenting from remand.

Because appellant entered a guilty plea without articulating or preserving any claim of error (and because the mere failure to enter a written order was not fundamental error), I would affirm outright. With exceptions not pertinent here, “if a defendant pleads guilty without expressly reserving the right to appeal a legally dis-positive issue, the defendant may not [successfully] appeal the judgment or sentence.” § 924.051(4), Fla. Stat. (Supp.1996).

Construing the Criminal Appeal Reform Act, § 924.051(3), Fla. Stat. (Supp. 1996), our supreme court has declared “that the Legislature intended to condition reversal of a conviction on the existence of either an error that was preserved and prejudicial or an unpreserved error that constitutes fundamental error.” State v. Jefferson, 758 So.2d 661, 664 (Fla.2000). Unpreserved errors that are not prejudicial and could never require reversal are less — not more — deserving of appellate consideration than unpreserved errors that would have required reversal, if timely and appropriate objection had been made.

The present case differs from White v. State, 548 So.2d 765 (Fla. 1st DCA 1989), in important respects. The defendant in White stood trial only after the trial judge had ruled him competent to do so:

On April 8, 1987, [White] was found incompetent to stand trial and was hospitalized under the supervision of the Department of Health and Rehabilitative Services. On November 20, 1987, a hearing was held to determine whether [White] remained incompetent. After hearing expert testimony and receiving psychological evaluations, the trial court stated that [White] was competent to stand trial. Though the state’s attorney was directed to draft an appropriate order, the record reflects that no such order was ever issued.

548 So.2d at 766. In the present case, appellant’s plea had been accepted, he had been adjudicated guilty, and sentence had been pronounced, before the following transpired:

The Court: ... Now, he’s apparently previously been adjudged not competent to proceed. What is up with that, Mr. Brancato?
Mr. Brancato [defense counsel]: He did go to Chattahoochee. He just came back. I’ve had him evaluated by two separate doctors. Since then they both say he’s competent to proceed.
The Court: All right, sir.

This is a much more dramatic departure from the requirements of Florida Rule of Criminal Procedure 3.212(c)(7), than the simple oversight of failing to reduce an oral ruling to writing that occurred in White.

Appellant complains (for the first time on appeal) only of the absence of a written order, however, and does not contend that the absence of a second competency hearing itself entitles him to relief. His contention boils down to insisting that “All right, sir” be reduced to writing. But no competency hearing preceded the trial court’s “All right, sir,” which may well, in any event, have been — rather than any ruling on the merits of the competency question — the trial court’s acknowledgment that defense counsel was not contesting his chent’s competency to proceed (after the fact).

In this context, the lack of a written order is inconsequential. The trial court should not, moreover, be required to enter an order on remand where the effect might be to make it seem that the trial court made an adjudication earlier that it was never even asked to make. I respectfully dissent from the remand.

      . Section 924.051(4) provides:
      If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment and sentence.

       In pertinent part, the proceedings consisted of the following:
      THE COURT: Sir, do you want to enter a plea of no contest in accord with this plea offer?
      THE DEFENDANT: No contest.
      THE COURT: Is that what you want to do?
      THE DEFENDANT: Uh-huh.
      THE COURT: I need you to say yes.
      THE DEFENDANT: Yes.
      THE COURT: Okay. I’ll accept your plea, find it is freely and knowingly and voluntarily given. Count 1, I’m going to adjudicate guilty and sentence you to ten years' state prison followed by 15 years probation with credit for—
      THE CLERK: I’m figuring it up.
      THE COURT: All right. We’ll come back to that.
      On the probation, your terms and conditions are as follows: $436 court costs, payable at a rate of no less than $30 a month. No possession or consumption of alcoholic beverages. Random uranalysis. Defendant shall abide by mandatory curfew and remain within his residence from 10:00 p.m. to 6:00 a.m. or as otherwise directed by probation community control officer.
      The defendant is prohibited from living within a thousand feet of a school, daycare center, park, playground, or other place where children regularly congregate.
      He must actively participate in and successfully complete a sex offender treatment program as directed by your probation officer and pay for any fees. And it shall be provided by a therapist who is specifically trained to treat sex offenders, if such is available within 50 mile radius of your house.
      You may not associate or have any contact in any way including e-mail, writing, telephone with the victim, either directly or indirectly unless approved by the victim and this Court and your therapist.
      You shall, if you are — -if you have not successfully completed a sex offender treatment program, you shall have no unsupervised contact with any child under the age of 18 unless another adult is present who is responsible for the child’s welfare, has been advised of the crime and is approved by the sentencing court.
      You're prohibited from working for pay or volunteering at any school, daycare center, park, playground, or other place where children regularly congregate.
      You’re prohibited from viewing, owning or possessing any obscene pornographic or sexually stimulating visual or auditory material including telephone electronics media, computer programs, or computer services that are relevant to deviant behavior pattern.
      You are to submit two FDLE samples at your expense as required by the Florida Statutes to register at the DNA bank.
      Restitution to the victim is ordered by Florida Statute for all necessary medical and related professional services relating to physical, psychiatric, and psychological care.
      You shall submit to a search without warrant by the probation officer at your — of your person, residence, or vehicle.
      You shall participate at least annually in polygraph exams to obtain information necessary for risk management and treatment and to reduce your denial mechanism. And it must be — the polygraph exam must be conducted by a polygrapher who is trained specifically in the use of the polygraph or monitoring sex offenders where available and you pay for it.
      You will maintain a driving log and not drive a motor vehicle alone without prior approval of the supervising officer. Not obtain or use a post office box without prior approval or supervising officer.
      And was there sex — there was sex contact, but I’m not sure it is the kind that they are referencing on this HIV test, but it is checked.
      MR. DICKINSON: Judge, we request that.
      THE COURT: All right. You'll submit at your own expense to an HIV test with the results to the victim and the victim's parents and submit to electronic monitoring when deemed necessary by the community control or probation officer and supervisor and ordered by the Court at the recommendation of the Department of Corrections. I think that’s it.
      Now, he's apparently previously been adjudged not competent to proceed. What is up with that, Mr. Brancato?
      MR. BRANCATO: He did go to Chattahoochee. He just came back. I've had him evaluated by two separate doctors. Since then they both say he's competent to proceed.
      THE COURT: All right, sir. You have 30 days to appeal the judgment and sentence of the Court. If you cannot afford to hire an attorney, one will be appointed for you.
      Good luck.
      MR. BRANCATO: Judge, if I can just put something on the record. I traveled to New York City to do depositions of the victim in this case. And during the course of the depositions, it came out that charges greater than what he pled to may have been filed and that was one contemplated thing in his entering this plea, that the State might charge a capital sexual battery and that was one thing that he took into consideration with the entering of this plea.
      The only other thing I would say it that Mr. Martinez is not from here. He came down here to Pensacola on vacation. He's from New York City. We ask that probation be transferred there when he's done with his prison sentence.
      THE COURT: Now, I did adjudicate him guilty, I think. But let me go ahead and say I’ll adjudicate guilty. His probation, assuming that the State will accept him, can be transferred, but he'll have to comply with all of these conditions in the state where he is.
      MR. BRANCATO: Yes, your honor.
      THE COURT: Good luck. Did I tell him he had 30 days to appeal? All right. Good luck, sir.


author: ALTENBERND, Chief Judge.

text:
    Christopher Jay JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4661.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2003.
    James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

Christopher Jay Jackson appeals a judgment for aggravated battery and the fifteen-year prison releasee reoffender sentence he received for the crime. Mr. Jackson has raised no issues regarding his conviction, and we therefore affirm the conviction. As to the sentence imposed, Mr. Jackson argues, and the State concedes, that the absence of a sentencing hearing transcript and the inability of the parties or the court to reconstruct the record require us to reverse the sentence and remand for resentencing. See Delap v. State, 350 So.2d 462 (Fla.1977).

Affirmed in part, reversed in part, and remanded.

CANADY and WALLACE, JJ., concur.


text:
    Roberto VASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4825.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Rehearing Denied Aug. 29, 2003.
    Michael J. Doddo, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the conviction and sentence of appellant based upon our recent decision of Vasquez v. State, 830 So.2d 929, 932 (Fla. 4th DCA 2002), in which we reversed the conviction of appellant’s co-defendant wife, and remanded for a new trial. Because the defenses of both parties were intertwined, the same error on which we reversed in the wife’s case requires a new trial in this case.

WARNER, KLEIN and SHAHOOD, JJ., concur.


text:
    Henry Jerome WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2188.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Rehearing Denied Sept. 2, 2003.
    Henry Jerome Willis, Bristol, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We accept the state’s concession. We reverse and remand the case for further review of appellant’s claim that counsel’s failure to request a jury instruction on the necessarily included offense of attempted second degree murder constituted ineffective assistance of counsel. Willis v. State, 840 So.2d 1135 (Fla. 4th DCA 2003); Akmadi v. State, 740 So.2d 67 (Fla. 4th DCA 1999).

STEVENSON, HAZOURI and MAY, JJ., concur.