author: WOLF, C.J. BENTON, J.,

text:
    James L. HALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0181.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.

      Nancy A. Daniels, Public Defender; Steven A. Been, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

Hall appeals from his conviction for first degree murder and armed robbery. He raises two issues on appeal: 1) Whether the trial court erred in rejecting his request for a 12-person jury, and 2) Whether the written sentence must be corrected to conform to the oral pronouncement. We find merit as to the second issue, but as to the first issue we determine that appellant was not entitled to a 12-person jury because the death penalty was not a possible penalty in this case as a matter of law. We do, however, certify a question of great public importance as to that issue.

The appellant was tried in 1993 and found guilty of first degree felony murder and armed robbery. The appellant was sentenced to life with no possibility of parole for 25 years for the murder and to 10 consecutive years for the robbery. That judgment and sentence was per curiam affirmed by this court in Hall v. State, 643 So.2d 1085 (Fla. 1st DCA 1994).

The appellant filed a motion for postcon-viction relief based on newly discovered evidence which resulted in a new trial being ordered. Prior to appellant’s new trial, the defense argued to the court that it was entitled to a 12-person jury because appellant was on trial for the capital offense of first degree murder; the defense refused to waive that right. The state argued that appellant had no right to a 12-person jury because double jeopardy barred a death sentence at the retrial. The trial court ruled that the case would be tried with a six person jury. At retrial, the six person jury found the appellant guilty of first degree murder and armed robbery.

Article 1, Section 22 of the Florida Constitution states that “[t]he right of trial by jury shall be secure to all and remain inviolate. The qualifications and number of jurors ... shall be fixed by law.” Section 913.10, Florida Statutes, and Florida Rule of Criminal Procedure 3.270 require that 12 persons shall constitute a jury to try all capital cases and that 6 persons shall constitute a jury to try all other cases. In State v. Hogan, 451 So.2d 844 (Fla.1984), the supreme court stated that for purposes of defining “capital” under the statute and the rule, “[W]e hold that a capital case is one where death is a possible penalty.” Id. at 845 (emphasis added). In appellant’s original trial, although the State sought the death penalty, the jury came back with a recommended life sentence which was imposed by the trial court; therefore, at appellant’s subsequent retrial, he could not be subject to the death penalty again under principles of double jeopardy. See Bullington v. Missouri 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

In Donaldson v. Sack, 265 So.2d 499 (Fla.1972), the supreme court dealt with the correct procedure to be employed in prosecuting first degree murder cases after the death penalty was invalidated by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). There, the court held that Furman abolished capital offenses as previously imposed in Florida because the traditional definition of a “capital” case was one where the death penalty could be imposed. The effect of the supreme court’s decision in Donaldson was that the procedural and substantive aspects of “capital” crimes no longer applied after the death penalty was abolished. See also LeDuc v. State, 448 So.2d 32 (Fla. 1st DCA 1984).

In State v. Hogan, 451 So.2d 844 (Fla.1984), the supreme court addressed the issue of whether sexual battery of a child was still defined as a “capital” crime for purposes of determining whether a 12-person jury is required after the legislature determined that death could no longer be imposed for that offense. There, the court expressly held that the offense of sexual battery on a child is not a “capital” offense for purposes of requiring a 12-person jury because death was not a possible penalty. The court found that its reasoning in Hogan was consistent with its reasoning in Donaldson v. Sack. Id. at 845.

Appellant relies on State v. Griffith, 561 So.2d 528 (Fla.1990), where the supreme court held, among other things, that a defendant indicted for first degree murder is entitled to trial by a 12-person jury unless that right is waived jointly by the state and the defense. The issue in that case, however, was whether the prosecutor or the court can change the classification of an offense from capital to noncapital by electing not to seek the death penalty. The holding in that case is that a defendant in a capital case is entitled to a trial by a 12-person jury unless that right is waived jointly by the State and the defense. Id. at 529. In Griffith, the supreme court distinguished its opinion in Hogan by pointing out that in Griffith the issue was whether there was a knowing and intelligent waiver by the defense, but in Hogan the issue was whether a 12-person jury was required where the death penalty was no longer a possible penalty as a matter of law. The instant case does not involve a waiver of the 12-person jury, but whether the case can still be considered “capital” for purposes of determining the number of jurors required when the death penalty is not a possible penalty. Thus, the holding and reasoning in Griffith regarding the knowing waiver of the defense does not relate to the question in the instant case and does not support the appellant’s argument that the trial court erred in denying his demand for a 12-person jury under the facts of this case. Id. at 529-530. Because the death penalty was not possible as a matter of law in this case, a 12-person jury was not required under the supreme court’s reasoning in Hogan. In light of the seriousness of the issue, however, we certify the following question to be one of great public importance:

WHETHER A 12-PERSON JURY IS REQUIRED IN A FIRST DEGREE MURDER CASE WHERE THE DEATH PENALTY MAY NOT BE IMPOSED AS A MATTER OF LAW.

As to Issue 2, the state correctly concedes that the trial court’s oral pronouncement of sentence prevails over the written judgment and sentence form. See Marshall v. State, 652 So.2d 974 (Fla. 1st DCA 1995). Immediately following appellant’s retrial, the trial court orally pronounced sentence as “life with no possibility of parole for a minimum of 25 years.” The trial court’s written sentence form indicated that no less than 25 years be served, but the court had inserted life with “no possibility of parole.” The written sentence must be corrected to reflect that the sentence on the murder count should be life with no possibility of parole for 25 years.

The sentence as to the first degree murder is vacated with instructions to correct the written sentence in accordance with this opinion. The conviction is affirmed.

ERVIN, J., Concurs; BENTON, J., Dissents with Opinion.

BENTON, J.,

dissenting.

“Twelve persons shall constitute a jury to try all capital cases_” § 913.10, Fla. Stat. (1991); Fla. R.Crim. P. 3.270 (same). “A ‘capital case’ is a case in which a person is tried for a capital crime. A ‘capital crime’ is one for which the punishment of death is inflicted.” Adams v. State, 56 Fla. 1, 48 So. 219, 224 (1908). First degree murder is a capital crime. See Alfonso v. State, 528 So.2d 383, 384 (Fla. 3d DCA 1988) (holding “that the trial court’s pretrial decision not to impose a death penalty did not transform first-degree murder into a noncapital crime”); Ortagus v. State, 500 So.2d 1367, 1371 (Fla. 1st DCA 1987). I would reverse appellant’s conviction for first degree murder and remand for trial to a twelve-person jury.

Our supreme court has clearly said that it is for the Legislature to decide in which cases twelve-member juries shall sit. “A defendant charged with first-degree murder ... has a statutory right to trial by a twelve-person jury .... [because] the legislature has the [constitutional] power to ... prescribe the number of jurors (not less than six).” State v. Griffith, 561 So.2d 528, 529 (Fla.1990). “The prosecutor has no such power. The prosecutor cannot, by electing not to seek the death penalty, change the classification of an offense from capital to noncapital and unilaterally determine whether a defendant is entitled to trial by a twelve-person jury. A court cannot do this either.” Id. (Emphasis supplied.)

Under our constitution, the “number of jurors ... shall be fixed by law.” Art. I, § 22, Fla. Const. This means by statute, not by judicial decision on an ad hoc basis. See Griffith, 561 So.2d at 529; see generally State v. Bloom,, 497 So.2d 2, 3 (Fla.1986) (“If we allowed the circuit judge to make pre-trial determinations of the death penalty’s applicability, we would be modifying the death penalty’s statutory scheme.”). The construction of the phrase “by law” in State v. King, 426 So.2d 12, 13 (Fla.1982), bears this out, although another constitutional provision was at issue: “Our constitution, in article I, section 15(b), gives the legislature the authority to provide for the special treatment of juvenile offenders: “When authorized by law, a child as therein defined may be charged with a violation of law as an act of delinquency.... A child found delinquent shall be disciplined as provided by law.’ This section has been interpreted as conferring upon a child the right to be treated as a juvenile offender in the manner provided by statute.” Id. (Third emphasis in original.)

Treating the classification of capital crimes as within the Legislature’s purview, and therefore as a straightforward question of statutory construction, has the practical virtue of avoiding any need for trial courts to decide (and to do so pretrial, see Bloom, 497 So.2d at 3) recondite constitutional questions that may go for years without definitive resolution. The present case is a good example. The majority opinion’s central premise is that appellant could not have been sentenced to death after retrial, consistently with the United States Supreme Court’s decision in Bullington v. Missouri 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

But the United States Supreme Court decided just last term that “the mere imposition of a life sentence” does not preclude a sentence of death after retrial and a second conviction. Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 737, 154 L.Ed.2d 588 (2003). While Sattazahn can be distinguished from the present case on more than one basis, the Sattazahn plurality’s stated rationale for authorizing death on remand was that, even though the judge had initially pronounced a life sentence, there had not been “an ‘acquittal’ at a trial-like sentencing phase.” Id. Is a life sentence imposed by a Florida judge in a capital case — even upon the recommendation of a jury (that has not, however, necessarily reached a unanimous verdict as to any one aggravating or mitigating circumstance) — “an ‘acquittal’ at a trial-like sentencing phase”? Suffice it to say that the matter is not free from doubt. See Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

The majority opinion relies on Donaldson v. Sack, 265 So.2d 499, 503 (Fla.1972) (finding no requirement for twelve-person juries, whatever the offense, on the as-' sumption that “ ‘capital cases’ ha[d] been eliminated by the U.S. Supreme Court ruling” in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)), and on State v. Hogan, 451 So.2d 844 (Fla.1984) (finding no requirement for twelve-person juries in sexual battery cases because the court had held in Buford v. State, 403 So.2d 943, 951 (Fla.1981) “that a sentence of death ... for the crime of sexual assault ... is ... forbidden by the Eighth Amendment as cruel and unusual punishment”). Both Donaldson and Hogan proceeded on the premise that apparent statutory authorization for the death penalty was illusory because the putatively authorizing statutory provisions had been declared unconstitutional. The present case is different.

The statutory language which authorized death as punishment for first degree murder at the time of appellant’s offense has not been declared unconstitutional. See generally Howard v. State, 385 So.2d 739, 739-40 (Fla. 3d DCA 1980) (“After the Legislature revitalized the death penalty [in response to Furman] by the enactment of Section 921.141, Florida Statutes (Supp. 1972), ... the trial of a defendant charged with first degree murder, by information, was void because Article I, Section 15(a) of the Florida Constitution prohibits any person from being tried for a capital crime without presentment or indictment by a grand jury.”).

In sum, first degree murder eases are capital cases because the Legislature made first degree murder punishable by death. See § 782.04(l)(b), Fla. Stat. (1991); Lewis v. State, 780 So.2d 125, 125 (Fla. 3d DCA 2000) (“Section 782.04(1), Florida Statutes (1995), provides that first-degree murder is a capital felony....”); Alfonso, 528 So.2d at 384; Ortagus, 500 So.2d at 1371 (Fla. 1st DCA 1987) (“Ortagus contends he was not charged with a capital crime because, per the parties’ stipulation, the death sentence was not a possible punishment for his crime. Rusaw v. State, 451 So.2d 469 (Fla.1984) (a capital crime is one in which the death sentence is possible). This argument, however, ignores the fact that the legislature has the power to define crimes and set punishments. Id. According to Section 782.04, Florida Statutes (1983), murder in the first degree is a capital offense.”).

For the forgoing reasons, I respectfully dissent.

      . It is unclear why the dissent cites Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), other than to say that the death penalty was an available sentence at retrial. Sattazahn involves a retrial after a jury deadlock on the penalty phase of first case, a situation unlike the instant case where the first jury rejected the death penalty. Both the State and the defense in this case agree that the death penalty was unavailable as a matter of law.

      . It is not necessary for the defendant to be present for this clerical correction.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Simon Dwayne SINCLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2599.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.
    Nancy A. Daniels, Public Defender, Glenn P. Gifford and'Phil Patterson, Assistant Public Defenders, Tallahassee, for Appellant.

      Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Simon Sinclair appeals the sentences imposed upon him as a prison releasee reof-fender (PRR), contending that the sentences were based exactly on the same evidence, admitted over objection, that this court had previously decided was insufficient to support such sentences. See Sinclair v. State, 812 So.2d 594 (Fla. 1st DCA 2002) (Sinclair I). We agree and once again reverse the sentences and remand the case for resentencing.

In Sinclair I, this court affirmed appellant’s convictions, but reversed and remanded for resentencing, because the state had failed to offer legally sufficient evidence to support the imposition of sentences under the PRR act. The state had relied solely on hearsay evidence regarding appellant’s release date from prison, and had failed to prove through a fingerprint expert or otherwise that the prior convictions were appellant’s, both of which were essential to the imposition of PRR sentences. In Sinclair I, we cited Boyd v. State, 776 So.2d 317 (Fla. 4th DCA), review denied, 792 So.2d 1213 (Fla.2001); Randall v. State, 613 So.2d 93 (Fla. 1st DCA 1993); and King v. State, 590 So.2d 1032 (Fla. 1st DCA 1991), as an aid to the state and trial court. Nevertheless, on remand, the state failed to cure these evi-dentiary errors in proof and the trial court again imposed PRR sentences based upon legally insufficient evidence.

In reversing appellant’s sentences, we reject the state’s argument that this case should be affirmed under Eutsey v. State, 383 So.2d 219 (Fla.1980), and Smith v. State, 461 So.2d 995 (Fla. 5th DCA 1984). Appellant’s counsel in this case properly lodged objections based on the ground of hearsay as to the release date stated in the probation order allegedly signed by appellant and the criminal judgment, due to the fact that the probation officer was not the custodian of the judgment, and on the ground that there was no proof that appellant was the same person named on the judgment for the prior convictions. The latter factual issue goes to the truth of the material relied upon for the imposition of the PRR sentences and distinguishes this case from Eutsey and Smith.

REVERSED and REMANDED for re-sentencing.

ERVIN, BARFIELD and ALLEN, JJ., concur.

      . § 775.082(9), Fla. Stat. (Supp.1998).

      . These facts were not recited in Sinclair I. Rather, they are found in the record of the earlier case, and we of course may appropriately take judicial notice of the records in former appeals. See Barry Hinnant, Inc. v. Spottswood, 481 So.2d 80, 81 n. 1 (Fla. 1st DCA 1986).

      .This probation order is not part of the record and does not appear to have been admitted into evidence.


text:
    Gene HIGGINBOTHAM, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1876.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.

      Baya Harrison, III, Monticello, for Appellant.
    Charlie Crist, Attorney General; Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the appellant’s claims are facially sufficient and the trial court failed to refute the appellant’s claims with record attachments, we reverse.

The appellant was convicted of four counts of DUI manslaughter and one count of DUI with a serious bodily injury. This Court affirmed the appellant’s convictions on direct appeal. Higginbotham v. State, 757 So.2d 502 (Fla. 1st DCA 2000) (unpublished table decision). The appellant later filed a motion for postconviction relief alleging that his counsel was ineffective for failing to call a witness, for failing to object to improper witness testimony, and for failing to file a motion to suppress his statements to the police. The trial court erroneously denied the appellant’s claims as barred because they were raised on direct appeal. While the underlying issues may have been raised on direct appeal, the fact that trial counsel was ineffective in presenting these issues to the trial court was not addressed on direct appeal. Corzo v. State, 806 So.2d 642, 644-645 (Fla. 2d DCA 2002); Thompson v. State, 764 So.2d 630 (Fla. 1st DCA 2000).

Because all of the appellant’s claims are facially sufficient and the trial court did not consider the merits of the appellant’s claims, we reverse the trial court’s summary denial and remand for the attachment of record portions conclusively refuting the appellant’s claims or for an evidentiary hearing.

REVERSED and REMANDED.

WOLF, C.J., LEWIS and POLSTON, JJ., concur.


author: LEWIS, J.

text:
    B.A.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4945.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

B.A.B., a child, challenges the trial court’s order adjudicating him delinquent and committing him to the Department of Juvenile Justice for a moderate-risk residential placement. On appeal, appellant contends that the trial court’s Juvenile Order of Disposition should be reversed because the trial court failed to order and consider a predisposition report (“PDR”) before making its final disposition. Appellant also contends, and the State concedes, that the trial court erred in entering a single disposition order for two different offenses. We agree with both contentions and, therefore, reverse the Juvenile Order of Disposition and remand for a new disposition hearing.

Following an adjudicatory hearing, the trial court found appellant guilty of one count of exposure of his sexual organs and one count of disorderly conduct. The State recommended a sexual commitment for one year and stated that “being familiar with [appellant’s] background, I would not be asking for a PDR in this case.” The trial court subsequently adjudicated appellant guilty as to both counts and committed him to the Department of Juvenile Justice not to exceed one year under “the sex program.” In the trial court’s Juvenile Order of Disposition, the box beside the statement “Predispositional study waived by the Court and the Child” is checked. The order includes the adjudication and sentences as to both Counts I and II.

While appellant’s appeal was pending before this Court, appellant filed a Motion to Correct Disposition Error with the trial court, wherein he made the same arguments as he does now on appeal. In denying appellant’s motion, the trial court set forth that it had not ordered a PDR because it had previously seen appellant on multiple occasions for prior offenses and commitments. The trial court also set forth that it was familiar with appellant’s aunt and uncle, who had been providing appellant care and shelter since he was transferred to Lafayette County. The trial court determined that, while the intent of the rule requiring a PDR is to make certain that the court has sufficient information before it prior to making a determination, a request of “redundant investigations is unnecessary” where the court already has knowledge of that information. The court failed to address appellant’s assertion that it erred in entering one disposition order for the two offenses. This appeal followed.

Section 985.229(1), Florida Statutes (2002), provides that “[a] predisposition report shall be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the [Department [of Juvenile Justice].” Pursuant to section 985.229(2), a trial court “shall consider the child’s entire assessment and predisposition report and shall review the records of earlier judicial proceedings prior to making a final disposition of the case.” The PDR “shall be made available to the child, the child’s parents or legal guardian, the child’s legal counsel, and the state attorney upon completion of the report and at a reasonable time prior to the disposition hearing.” § 985.229(3), Fla. Stat. (2002); see also Fla. R. Juv. P. 8.115(a). Strict compliance with these statutory procedures is required. J.E.W. v. State, 672 So.2d 72, 73 (Fla. 1st DCA 1996) (vacating the disposition order and remanding for a new sentencing hearing because one of the trial court’s errors included adjudicating and sentencing the appellant without considering a PDR); see also A.W. v. State, 706 So.2d 398, 399 (Fla. 2d DCA 1998). As such, a trial court commits reversible error when it makes a juvenile disposition without first considering a PDR. R.K. v. State, 834 So.2d 358, 358-59 (Fla. 4th DCA 2003). The PDR requirement may be waived, but only if the trial court informs the juvenile of his or her rights and confirms that the juvenile understands the significance of the waiver. K.D.G. v. State, 787 So.2d 56, 57 (Fla. 2d DCA 2001) (citing B.B. v. State, 718 So.2d 399, 399 (Fla. 4th DCA 1998)).

On appeal, the State concedes that, contrary to the Juvenile Order of Disposition, the record is devoid of any express and knowing waiver of the PDR by appellant. The State argues, however, that a remand in this case would serve no useful purpose because the trial court made it clear that it was aware of all matters related to appellant. Neither the trial court nor the State has cited any authority that would permit a trial court, which allegedly has knowledge of a juvenile’s prior record and is familiar with that juvenile’s family, to forego the requirement that it order and consider a PDR before making a final disposition in each case. In declining to follow the statutorily mandated PDR procedures, the trial court, in effect, created an exception to the applicable statutes and rules that does not exist. Furthermore, by merely relying upon its knowledge of appellant’s needs and prior record and by noting its familiarity with appellant’s aunt and uncle, the trial court deprived appellant of his entitlement to review a PDR prior to the disposition hearing as provided for in section 985.229(3). We also conclude that the trial court erred in entering a single order for the two offenses. See K.L.P. v. State, 783 So.2d 336, 336 (Fla. 1st DCA 2001) (holding that the trial court acted in contravention of both case precedent and Florida Rule of Juvenile Procedure 8.115 by entering a single disposition order for all of the cases against the appellant).

Accordingly, because appellant was entitled to have the trial court order and consider a PDR before making its final disposition and because a remand in this case would not constitute an unnecessary exercise, we reverse the disposition order and remand for a new disposition hearing with directions that the trial court either order and consider a PDR before recommitting appellant or secure appellant’s knowing waiver of this statutorily mandated requirement. In the event that the trial court recommits appellant for the two offenses, it must enter separate orders for each offense.

REVERSED and REMANDED with directions.

ERVIN and ALLEN, JJ., CONCUR.


text:
    Benjamin Lee BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1061.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2003.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    James WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2503.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2003.
    James Washington, Florida City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).

GRIFFIN, MONACO and TORPY, JJ., concur.


text:
    Saul RODRIQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2684.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2003.
    Saul Rodriquez, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRM. See Carter v. State, 832 So.2d 247 (Fla. 5th DCA 2002) and Henriquez v. State, 829 So.2d 355 (Fla. 5th DCA 2002).

PETERSON, THOMPSON and ORFINGER, JJ., concur.


text:
    Michael HILL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2744.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2003.
    Michael Hill, Bonifay, Pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hall v. State, 823 So.2d 757 (Fla.2002).

THOMPSON, PLEUS and TORPY, JJ., concur.


text:
    Andrea Lavon GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2781.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2003.
    Andrea Lavon Green, Polk City, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Mack v. State, 823 So.2d 746 (Fla.2002).

GRIFFIN, PLEUS and MONACO, JJ., concur.


text:
    Timothy WILKINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2753.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2003.
    Timothy Wilkinson, Bonifay, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Floyd v. State, 807 So.2d 93 (Fla. 5th DCA 2002).

PETERSON, PLEUS and MONACO, JJ., concur.


text:
    Vernon L. JORDAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3547.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Vernon L. Jordan, in proper person.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Vernon Jordan (“defendant”) appeals an order resentencing him, on the ground that he was sentenced without counsel present. The state properly concedes that the resentencing of the defendant without the benefit of counsel was error. See Spivey v. State, 829 So.2d 386 (Fla. 3d DCA 2002); Smith v. State, 820 So.2d 1052 (Fla. 3d DCA 2002).

Accordingly, we remand this case for resentencing, at which time the defendant will present and represented by the Public Defender.

Reversed and remanded for resentenc-ing.


author: KLEIN, J.

text:
    Douglas PEEBLES, M.D., Gerry Baran, M.D., Alan Ast, M.D., Monte Bernstein, M.D., Robert Chaikin, M.D., Karen Chesire, M.D., Michael Horn, M.D., Neil E. Ross, M.D., Gary Karch, M.D., and Paul Pavilack, M.D., Appellants, v. SHERIDAN HEALTHCARE, INC., Mitchell Eisenberg, M.D., Lewis D. Gold, M.D., Jay A. Martus, Esq., Levey & Martus, P.A., and Levey, Martus & Gilbert, P.A., Appellees.
    No. 4D02-172.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.

      Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, Garry W. O’Donnell of Adorno & Yoss, Boca Raton, and John P. Kelly of Lorusso & Loud, Fort Lauderdale, for appellants.
    Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, William Scherer and James F. Carroll of Conrad & Scherer, Fort Lauderdale, for appellees.
   ON MOTION FOR CLARIFICATION

KLEIN, J.

We withdraw our opinion filed on July 16, 2003 and substitute the following opinion.

After a group of twenty-five anesthesiologists sold their practice to a management company which retained them as employees, ten of them sued their former president, their lawyer, and others, alleging fraud, breach of fiduciary duty, conspiracy, legal malpractice, and securities violations. Although the jury found for, plaintiffs on some of the counts, it did not find any of the defendants guilty of fraud. The trial court then concluded that the counts on which the plaintiffs recovered were barred as a matter of law by the documents plaintiffs signed which included broad releases. The plaintiffs appeal and we affirm.

The physicians were practicing as Southeastern Anesthesia Management Associates, Inc. (SAMA), some of them owning Class A stock and others Class B. Dr. Eisenberg was the president and managed the practice, and Attorney Jay Martus was the general counsel. SAMA was sold through a venture capital firm, T.A. Associates, to a newly created entity, Sheridan Healthcare, Inc. The purchase price was $45 million and, out of the net proceeds of the sale, each Class A shareholder received $1,881,000 and each Class B shareholder received $1,250,000.

The physicians on the whole did not receive stock in the new entity, but did have employment agreements with it. Ten of them brought this lawsuit after discovering that Dr. Eisenberg, Martus, and several others were involved in the management of the new entity, and had received shares of stock in the new entity in varying amounts which totaled 18.5 percent. The essence of their claim was that they had been led to believe by the defendants that everyone was receiving the same deal in the buyout, that all would have the same chance to be involved in management and own stock in the new entity, and that these representations were false. In addition to Dr. Eisenberg and Martus, plaintiffs sued another physician, Lewis Gold .and the new owner of the practice, Sheridan.

Count I alleged violations of Florida’s Securities and Investment Act, Chapter 517, Florida Statutes. Count II alleged fraud in the inducement. Count III alleged conspiracy. Count IV alleged breach of fiduciary duty, and Count V alleged legal malpractice against Martus. The jury found Dr. Lewis and Sheridan not guilty on all counts. It found Dr. Eisenberg and Martus guilty on Count I, securities violations, Count III, conspiracy, Count IV, breach of fiduciary duty and against Martus on Count V, malpractice. None of the defendants were found guilty on the count alleging fraud in the inducement.

On post trial motions the trial court ruled that the claims on which verdicts were returned for plaintiffs were barred by the documents signed by plaintiffs. The essence of the court’s holding was that, regardless of what plaintiffs had been led to believe prior to the sale of the practice, the documents they signed in order to receive their share of the buyout not only released the defendants, but also made known to them that Dr. Eisenberg and others would be involved in the management of the new company and receive stock.

The stock purchase agreement signed by each of the plaintiffs explained that Dr. Eisenberg would, and others could be involved in the management of, and receive stock in, the new entity:

(b) Each Seller .... (iv) understands and acknowledges that certain members of management of SAMA selected by the Board of Directors of the Company [SAMA Holdings, Inc.] in its sole discretion, which members of management shall include Dr. Mitchell Eisenberg and may include several physicians and non-physician administrators or other professionals currently employed, or engaged in the future, by SAMA, its Subsidiaries or AMSA, PC (each, a “Manager”), are expected to be offered stock, options, incentive compensation and/or other interests in the Company to which the Seller will not be entitled unless he is selected as Manager and are expected to enter into employment agreements on terms that may be substantially different from the terms of the employment agreements referenced in Section 7.01(1) hereof, (v) understands and acknowledges that he has received no guarantee, promise or assurance, and (except for Dr. Eisenberg) has no understanding or expectation, that he will be named as a Manager, and (vi) understands that the prospects of SAMA, its Subsidiaries, AMSA, PC and the Company and the value of SAMA, its Subsidiaries, AMSA, PC and the Company may improve significantly and that he will not participate in any such improvement after the sale of Shares hereunder (unless he is a Manager, in which case the terms of his participation will be as set forth in the Investment Agreement (as defined in Section 7.01(n)) ...

In addition, plaintiffs each acknowledged that they had “not relied upon any representations, warranties or agreements of any person other than those set forth in this Agreement.”

And, the releases provided that each plaintiff:

releases and discharges the Company [Sheridan] ... and each of the present and former stockholders, directors, officers, employees, attorneys and agents of the Company, SAMA ... from any and all ... claims and causes of action both in law and in equity ... in connection with the SAMA transaction.

Viewing the evidence in a light most favorable to plaintiffs, and therefore assuming that misrepresentations were made prior to the signing of the releases and other documents, those documents, which are clear and unambiguous, preclude plaintiffs’ claims as a matter of law.

In Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053, 1056 (Fla. 4th DCA 1999), the plaintiff had purchased a golf course for over $9 million. Plaintiff later sued a real estate broker and others for failing to reveal that the seller was only seeking to net $6.2 million, and had agreed to pay any amount over and above that as finder’s fees or commissions. In holding that the complaint did not state a cause of action for fraud in the inducement, breach of fiduciary duty, and conspiracy, we explained:

In this case, the Agreement plainly contradicts the allegations of the complaint and is fatally inconsistent with Pacific’s claim of fraud in the inducement. Although Pacific alleges that the appellees misrepresented the “price” of the Property, the price is clearly stated in the Agreement. Furthermore, the Agreement contains an integration clause that expressly extinguishes all prior negotiations and “sales pitches.” A party cannot recover in fraud for alleged oral misrepresentations that are adequately covered or expressly contradicted in a later written contract. See Englezios v. Batmasian, 593 So.2d 1077 (Fla. 4th DCA 1992); Greenwald v. Food Fair Stores Corp., 100 So.2d 200 (Fla. 3rd DCA 1958). (Emphasis supplied.)

The claims for security violations, conspiracy, breach of fiduciary duty, and malpractice in the present case are all based on claims which are plainly contrary to the information provided plaintiffs in the stock purchase agreements and are barred for the same reasons that the fraud claim was barred in Yamamura. In addition to knowing who would or could own stock and be in management of the new company, before they agreed to the buyout, plaintiffs also released the corporation and the individuals they sued from the claims they made in this case.

Plaintiffs argued that Martus is not protected by the release because he is an attorney, relying heavily on Kenet v. Bailey, 679 So.2d 348 (Fla. 3d DCA 1996). That case is distinguishable in that there a lawyer, who at no time had any claim to funds being held in his trust account, converted the funds to his own use. The lawyer then claimed that a release, executed when a limited partnership, in which the lawyer and the client had an interest, was dissolved, barred the client’s claim to the chent’s own funds. Not surprisingly the court saw through this subterfuge and held that the release involving the dissolution of the limited partnership had nothing to do with the trust funds. Kenet is accordingly not on point.

The factual basis for the claims against Martus for malpractice and breach of fiduciary duty involved an -alleged conflict of interest as a result of his relationship with both the buyer and the seller, nondisclosure of his future position with the buyer, and conspiracy with Dr. Eisenberg to orchestrate a buyout on unfair terms. The release, however, clearly covers all acts by Martus as attorney and agent arising out of his conduct in the transaction. Argyle Capital Mgmt. Corp. v. Lowenthal, Landau, Fischer & Bring, P.C., 261 A.D.2d 282, 690 N.Y.S.2d 256 (N.Y.App.Div.1999)(“agents” identified as released parties under release included counsel to the parties to investment, thus counsel and other agents were shielded by the release from any liability for legal malpractice); Doyle v. Shlensky, 120 Ill.App.3d 807, 76 Ill.Dec. 466, 458 N.E.2d 1120 (1983); see also Cerniglia v. Cerniglia, 679 So.2d 1160 (Fla.1996)(where the language of a release is clear a court cannot entertain evidence contrary to the plain meaning of the release).

This case is distinguishable from cases such as The Florida Bar v. Jordan, 705 So.2d 1387 (Fla.1998) and The Florida Bar v. Nemec, 390 So.2d 1190 (Fla.1980), in which lawyers had improperly attempted to settle malpractice claims directly with clients without advising the clients to seek independent counsel. First, there was no malpractice claim existing in the present case, when the releases were signed. Second, in Jordan and Nemec there were only two parties, the lawyer and the client, while in the present case the parties included five corporations, all of the stockholders of two of the corporations, but the lawyer, Martus, was not a party. In addition, as we noted earlier, the claims asserted against Martus were all inconsistent with the acknowledgments contained in the stock purchase agreements.

In the present case, when plaintiffs signed the documents they knew that Dr. Éisenberg and other physicians, which might not include them, could receive preferential treatment in the new company. They also knew that Martus could have a position with the new company. If this was not acceptable, plaintiffs should not have signed on. They cannot now claim that they relied on prior representations which were contrary to what was plainly explained in the documents.

Affirmed.

SHAHOOD and TAYLOR, JJ., concur.


text:
    Eduardo A. GONZALEZ, Appellant, v. Teresa M. GONZALEZ, Appellee.
    No. 3D02-1569.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Eduardo A. Gonzalez, in proper person.
    Douglas Isenberg, for appellee.
    Before SCHWARTZ, C.J. and GERSTEN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


author: SHAHOOD, J.

text:
    Roger NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1307.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, Roger Nelson, was charged and convicted of manslaughter with a deadly weapon in the shooting death of innocent bystander, Derrick Haughton. Appellant’s request for a jury instruction on self-defense was denied on the grounds that such an instruction could not be used on a transferred intent crime. On appeal, appellant claims that by denying his request for a self-defense instruction yet giving the jury a transferred intent instruction, the trial court denied him his ability to present a defense. We agree.

In this ease, appellant pulled up to a group of about twenty to thirty men playing dice, and got out of his car and approached one of the men, Herbert Amóse. Appellant tried to talk to Amóse, who immediately began cursing at appellant and ran after him. Amóse threatened to hurt appellant and punched him in the jaw. He then chased appellant with a brick in his hand, threatening to seriously harm appellant. Appellant jumped into his car, but was unable to pull out. Amóse stood in front of the car near the windshield with brick in hand and told appellant to get out and fight him. Amóse, a rather large man, threatened to hit appellant with the brick and taunted appellant to shoot him. Appellant exited his car with a gun and began shooting in Amose’s direction. As a result, Haughton was shot and killed.

The trial court instructed the jury on the justifiable use of deadly force:

A killing that is excusable or was committed by the use of justifiable deadly force is lawful.
If you find the killing was done by the defendant, you will next then consider the circumstances surrounding the killing and decide whether the killing was manslaughter or whether the killing was excusable or resulted from justifiable use of deadly force.
Justifiable homicide is defined as follows: The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing.

Pursuant to the state’s request, the jury was also given an instruction defining transferred intent:

If a person aims or shoots a firearm at another person, but instead misses and hits a different person, the law transfers the intent to shoot from the person aimed at to the person who was actually hit.

The court explained that in order to find appellant guilty of manslaughter the state must prove beyond a reasonable doubt that Derrick Haughton was dead and that appellant intentionally caused his death or that his death was caused by culpable negligence. The court also instructed that appellant could not be found guilty of manslaughter if the killing was justifiable or excusable.

We agree with appellant that the denial of his request for a self-defense instruction, denied him of the opportunity to present a valid defense. It is well settled that a defendant is entitled to have a jury instruction on any valid defense supported by the evidence. See Mora v. State, 814 So.2d 322, 330 (Fla.2002).

Under the facts of this case, appellant should have been entitled to transfer his theory of self-defense to defend against the transferred intent crime. In Brown v. State, 84 Fla. 660, 94 So. 874, 874 (1922), the Florida Supreme Court held that “[i]f the killing of the party intended to be killed would, under all the circumstances, have been excusable or justifiable homicide upon the theory of self-defense, then the unintended killing of a bystander, by a random shot fired in the proper and prudent exercise of such self-defense, is also excusable or justifiable.” See also Foreman v. State, 47 So.2d 308 (Fla.1950); 15B Fla. Jur 2d Criminal Law § 3431 (“if the slaying of an attacker would in the circumstances be self-defense, the person attacked will be free from liability if, in attempting to defend himself, he unintentionally kills a third person.”); V.M. v. State, 766 So.2d 280 (Fla. 4th DCA 2000)(where self-defense is a viable defense to the charge of battery on an intended victim, the defense also operates to excuse the battery on the unintended victim).

As instructed by the court, the jury could only find that appellant was not guilty of manslaughter if the killing was justifiable or excusable. By giving the jury an instruction on justifiable use of deadly force coupled with a transferred intent instruction, there was no way the jury could have ever found that appellant was justified in killing Haughton. According to the justifiable use of deadly force instruction, the lolling of a human being is justifiable and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant. Since Haughton, an innocent bystander, posed no threat to appellant, by denying his request for a self-defense instruction, the court denied appellant’s ability to transfer his defense to the unintended killing.

REVERSED AND REMANDED FOR A NEW TRIAL.

FARMER, C.J., and KLEIN, J., concur.


text:
    Bobby JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2452.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.

      Before GERSTEN, GODERICH, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002) and Rodriguez v. State, 837 So.2d 1177 (Fla. 3d DCA 2003).


author: GREEN, J.

text:
    Alexander FLORES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2522.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   GREEN, J.

Alexander Flores appeals his convictions and sentences for burglary of an occupied structure, kidnaping, false imprisonment, robbery, theft, and carjacking entered pursuant to a jury verdict. He essentially asserts that he was denied a fair trial because the trial court impermissibly allowed the State to introduce “Williams Rule” evidence to establish his identity when identity was not at issue in this case, and evidence of an uncharged crime when that evidence was not inextricably intertwined with the offenses charged. He further contends that the trial court erred in not reducing the carjacking charge to grand theft auto pursuant to his motion for judgment of acquittal where the evidence viewed in the light most favorable to the State failed to establish that force or violence was used at the time of his taking of the victim’s car. We agree and reverse for a new trial and for a reduction of the carjacking charge to grand theft auto.

All of the charges in the instant case stem from a July 24, 1999, incident wherein Flores entered the back door of a beauty salon owned by the victim, Gloria Gal-lardo. Flores asked Mrs. Gallardo for a glass of water. She told him no and instructed him to leave. Flores left and Mrs. Gallardo locked the door. Flores entered the front door of the salon moments later wielding a brick or roof tile and announced to Mrs. Gallardo and her five salon customers that it was a “hold up.” Flores claimed that he needed money to hire a lawyer for legal problems arising out of an incident with his daughter’s boyfriend. Flores took the purses of Mrs. Gallardo and a customer and ordered all of them into the bathroom of the salon. He blocked the door to the bathroom with a washer. Flores took the keys to Mrs. Gallardo’s car, went outside, and left the area in her car.

Flores was arrested several days later and charged with armed burglary, two counts of kidnaping with a weapon, two counts of armed robbery, and one count of carjacking. After being Mirandized, Flores admitted to his involvement in the crimes committed at Mrs. Gallardo’s salon. At the same time, Flores was charged with two other unrelated cases that were not included in the information in this case. Flores’ primary defense below was that of voluntary intoxication.

Prior to trial, the State filed an amended notice of intent to rely on evidence of other crimes, wrongs or acts, or Williams rule evidence. The first crime the State intended to offer as evidence took place on July 13, 1999, eleven days prior to the Gallardo incident, at the home of Teresa Andelo. Flores entered Mrs. Andelo’s home armed with a knife, and confined her to a closet by placing a dresser drawer in front of the closet door. He told Mrs. Andelo that he was in desperate need of money to leave town because he had done harm to someone who had molested his daughter. He took Mrs. Andelo’s money, jewelry and car.

The second crime the State intended to offer as evidence took place after the Gal-lardo incident on July 25, 1999, where Flores unlawfully entered an automobile owned and occupied by Josephine Korge. Armed with a pistol, Flores robbed Ms. Korge of her jewelry, wallet and keys while confining her. He also told Ms. Korge that he was in need of money because of his troubles with the law involving his daughter’s boyfriend.

The defense filed a pre-trial motion in limine seeking the exclusion of these unrelated crimes. At the hearing on this motion, the State acknowledged that both Ms. Korge and Mrs. Andelo identified the same photograph of Flores in a photo lineup. The prosecutor further stated that Flores had given a videotaped statement admitting to the three cases involving Mrs. An-delo, Mrs. Gallardo and Ms. Korge. The State nevertheless sought to introduce evidence of the two unrelated crimes to prove Flores’ identity. According to the State’s argument, the circumstances were sufficiently similar to make them admissible to corroborate the correctness of the identification of the victim (i.e., Mrs. Gallardo) in this case.

After the hearing, the trial court denied Flores’ motion in limine and ruled that the prior crimes committed by Flores against Mrs. Andelo were admissible Williams rule evidence because they were relevant to prove identity since the statements made by Flores to Mrs. Andelo, as well as his method of confining her, were uniquely similar to his commission of the crimes in the instant case. The trial court likewise found that the crimes committed against Ms. Korge were relevant and admissible because they were inextricably intertwined with the crimes committed in this case. Specifically, when Mrs. Gallardo’s stolen car was returned to her, Ms. Korge’s wallet and other belongings were found in the backseat.

Thus, during the trial below, the State was permitted to introduce the uncharged crimes involving Mrs. Andelo and Ms. Korge over objection by the defense that it was being elicited for the sole purpose of demonstrating that Flores was a bad person who had the propensity to commit crimes. In this regard, it was most telling that during Mrs. Gallardo’s testimony, the State never elicited the fact that Flores had told her that he was committing the crimes because he needed money to hire an attorney. The trial court specifically instructed the jury that it was to consider the Williams rule evidence solely on the issue of identity.

At the conclusion of the State’s case, the defense argued, among other things, that the carjacking charge should be reduced to grand theft since the taking of the car occurred after the completion of the robbery. The defense reasoned that since Mrs. Gallardo’s car was taken without the use of force, the crime was grand theft and not carjacking. The trial court denied this motion.

The jury returned its verdict finding Flores guilty of burglary of an occupied structure, kidnaping, false imprisonment, robbery, theft and carjacking. The court adjudicated Flores a habitual violent felon and sentenced him accordingly. This appeal followed.

Flores first asserts that the trial court abused its discretion when it permitted the introduction of two uncharged crimes as Williams rule evidence to establish identity pursuant to section 90.404(2)(a), Florida Statutes (1999). Duffey v. State, 741 So.2d 1192, 1196 (Fla. 4th DCA 1999); Townsend v. State, 420 So.2d 615, 617 (Fla. 4th DCA 1982). Such evidence, however, is inadmissible if its sole relevance is to establish the defendant’s bad character or propensity to commit crimes. See Heuring v. State, 513 So.2d 122, 124 (Fla.1987).

Here, we agree with the appellant that the trial court abused its discretion by allowing the State to introduce evidence of uncharged crimes, pursuant to the Williams rule, to establish identity when identity was not at issue in this case. Given the fact that the defense at trial was that of voluntary intoxication, it may very well be that this evidence might be admissible for another purpose. We cannot, nevertheless, find its admission to be harmless where the jury was specifically instructed to consider it solely for the purpose of identification.

We also agree with the appellant’s contention that the trial court abused its discretion in permitting the State to introduce evidence that the belongings from a subsequent robbery victim (i.e., Ms. Korge) were found in Mrs. Gallardo’s stolen car upon its return. We reject the State’s argument that such evidence was admissible because it was inextricably intertwined with the offenses charged in this case. See, e.g., Griffin v. State, 639 So.2d 966, 968 (Fla.1994) (finding that evidence which is inextricably intertwined with the crime charged “is admissible under section 90.402 because ‘it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.’ ’’Xquoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)); Shively v. State, 752 So.2d 84, 85 (Fla. 5th DCA 2000)(holding that “[e]vidence necessary to describe the manner in which a criminal offense took place or how it came to light is generally admissible” as inextricably intertwined with the underlying offense because, without this evidence, the State would be unreasonably hampered in the presentation of its case). The fact that Mrs. Gallardo discovered someone else’s wallet in her stolen car upon its return does nothing to explain the manner in which the offenses in this case took place or how the appellant’s involvement in the crimes against Mrs. Gallardo came to light. Therefore, the trial court abused its discretion in allowing the State to present evidence of this subsequent crime to the jury.

Finally, we agree with the appellant’s argument that his carjacking charge should be reduced to grand theft. Carjacking has been defined in section 812.133(1), Florida Statutes (1999), as follows:

“Carjacking” means the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

The plain language of this statute requires the use of force, violence, assault, or putting in fear during the course of the taking of the motor vehicle.

According to the undisputed facts of this case, the use of force, violence, assault, or putting in fear was used by the appellant during the course of the robbery of the victim’s purse in the salon, but not at the time of his subsequent theft of the victim’s automobile outside. Indeed, the victim in this case was most likely unaware of the theft of her car due to her confinement in the bathroom. We do not believe that the legislature intended for the carjacking statute to be extended to such facts. Cf. Price v. State, 816 So.2d 738 (Fla. 3d DCA 2002)(finding that the defendant could properly be convicted of carjacking where he demanded and retrieved the victim’s car keys at gunpoint as the victim was getting into her car, even though the defendant was unsuccessful in starting the car due to a defect in the keys). We therefore conclude that this carjacking charge must be reduced to grand theft of an automobile.

For all of these reasons, we reverse and remand for a new trial consistent with this opinion.

      . See Williams v. State, 110 So.2d 654 (Fla.1959), codified at § 90.404, Fla. Stat.

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

      . That statute, which codified the holding in Williams v. State, 110 So.2d 654, 659 (Fla.1959), states that:
      Similar fact evidence of other crimes, wrongs or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity-

      . A matter which we decline to address at this juncture.

      . Additionally, given the appellant’s announced reason for the holdup of the salon, it appears that his theft of the victim's car was a fortuitous event occasioned only upon his subsequent discovery of the car keys in her purse as he searched for money.


author: PER CURIAM. GREEN, J.

text:
    Aboul Howard BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-673.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before COPE and GREEN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed on authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003) (en banc); but nonetheless certify so as to pair them for review with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002); rev. dismissed, 821 So.2d 302 (Fla.2002).

GREEN, J.

(specially concurring).

The doctrine of stare decisis compels me to join in the affirmance of this cause, but I continue to adhere to the view that Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), was correct in its conclusion that Chapter Law 99-188, Laws of Florida, violates the single subject rule of the Florida Constitution.

      . Judges Cope and Green dissented.


author: SHEVIN, Judge.

text:
    Johnny RODRIGUEZ, Appellant, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Appellee.
    No. 3D02-2119.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Bennett Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson (Ft.Lauderdale), Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   SHEVIN, Judge.

We grant defendant’s petition for writ of habeas corpus asserting that appellate counsel was ineffective for failing to challenge the predicate offenses relied on by the state to sentence defendant as a violent career criminal. A review of the record reveals, and the state properly concedes, that defendant’s sentence is illegal as defendant does not qualify for sentencing as a violent career criminal pursuant to section 775.084(d), Florida Statutes (1999). We therefore vacate defendant’s sentence and remand for resentencing according to the laws in effect at the time defendant’s crime was committed.

Sentence vacated and cause remanded.


text:
    Janet VELAZQUEZ, Appellant, v. TAUBMAN SERVICES, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D02-2098.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Janet Velazquez, in proper person.
    John D. Maher (Tallahassee), for appel-lee Commission.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Because the appeal to the Unemployment Appeals Commission was untimely filed, we uphold the dismissal order. See § 443.161(4)(b)3., Fla. Stat. (2002).

Affirmed.


author: POLEN, J.

text:
    Geoffrey KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-823.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from Geoffrey Kennedy’s conviction of first degree murder and robbery. As his sole contention on appeal, Kennedy asserts the trial court erred in failing to conduct a Frye hearing to determine if the state’s image enhancing techniques were based on scientific principles that were established to have gained general acceptance in the scientific community. Because we find the methods employed in this case did not alter or change any of the evidence, rather, the methods were merely enhancement tools, we hold that a Frye issue was not presented and affirm Kennedy’s conviction.

Kennedy was convicted of killing Michael Sortel in his apartment. Kennedy admitted that he and Kevin Hoffman went to Sortel’s apartment, smoked crack cocaine, then killed Sortel. Detective Hill testified that there were bloody shoe prints left at the scene. Hill explained that he took black and white pictures of the footprints. He enhanced them, changed the contrast, and made them better for viewing but did not add or subtract anything. Hill further explained that he used a liquid called Luco Crystal Violet (“LCV”) that reacts with blood to make the print more visible.

In addition, Detective Cabrera testified that he lifted fingerprints from Sortel’s apartment. Specifically, he found a palm print on the comforter and fingerprints on a souvenir. The prints were sent to print examiner Carl Citóla. Citóla testified that normally a print on fabric or paper will not be lifted, it is photographed. Citóla explained that shortly after this crime, the lab acquired a computer system called Morhitz Digital Imaging (“Morhitz”). The detective processed the print, took a photograph of the print, then put the photo in to the Morhitz software which allows the image to be enhanced. Citóla explained that the system, like a digital camera, imports the picture directly from the camera. It then makes a copy of the original and authenticates it noting the time the photo was taken, who took it, and various information about the size of the file. The system then makes a copy of the picture off of which the detectives work. The original picture never gets changed. The software keeps a record of every change that is made to the enhanced photo.

It is the use of the LCV and the Morhitz software program that Kennedy takes issue with in this appeal. However, as noted above, neither the LCV or the Morhitz program alter the evidence, create evidence, or change the comparison methods used to match the evidence to a suspect. As the trial court aptly noted, they are both merely enhancement tools. In rejecting an argument that handwriting comparison testimony should be subject to Frye because it was not new or novel, the Florida Supreme Court recently pointed out that “[i]n the vast majority of cases, no Frye inquiry will be required because no innovative scientific theories will be at issue.” Spann v. State, 28 Fla. L. Weekly S293, — So.2d -, 2003 WL 1740646 (Fla. Apr. 3, 2003). Certainly the enhancement of otherwise available evidence is not an innovative scientific theory.

Even had we found the failure to conduct a Frye hearing error, our conclusion would not have changed, as any error in this regard would be harmless. The harmless error test “places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129 (Fla.1986) (internal citations omitted).

In this case, not only was Kennedy seen by Detective Curcio near the apartment where the murder occurred, Kennedy confessed to going over to the victim’s house to smoke crack and admitted that he held the victim down and that he and Hoffman both strangled the victim. As a result, we affirm Kennedy’s conviction.

AFFIRMED.

FARMER, C.J., and GROSS, J., concur.

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


text:
    Andrew Henry MANN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-194.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before GODERICH, GREEN, and RAMIREZ, JJ.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

Based on appellee State of Florida’s motion for clarification and for withdrawal of mandate, we recall the mandate issued on May 21, 2003, withdraw the opinion rendered the same day and substitute the following in its stead. The sentence is reversed due to the trial court’s failure to justify the sentence of life imprisonment as a violent career criminal. See Smith v. State, 842 So.2d 1047 (Fla. 3d DCA 2003). The case is remanded to the trial court for re-sentencing by a different judge, pursuant to Wilson v. State, 845 So.2d 142 (Fla.2003) (the record must rebut any presumption of vindictiveness).

Reversed and remanded.


text:
    Tommy MORELAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2042.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the automatic denial of his motion to correct a sentencing error, which occurred when the trial court failed to rule on the motion within sixty (60) days, pursuant to Florida Rule of Criminal Procedure 3.800(b)(l)B. The basis for his motion is the discrepancy between the number of days credit for time served written in the sentencing order (536) and that orally pronounced by the trial court at sentencing (556).

The State agrees that the written sentencing order does not conform to the court’s oral pronouncement. However, it suggests that the error may not be clerical in nature, and that the case should be remanded to the trial court to determine the correct number of days to be credited before the correction is made.

This court has consistently held that an oral pronouncement at sentencing prevails over a written order. See, e.g., Anthony v. State, 705 So.2d 131 (Fla. 4th DCA 1998); Gibbs v. State, 693 So.2d 65 (Fla. 4th DCA 1997); Thomas v. State, 595 So.2d 287 (Fla. 4th DCA 1992). Where there is no ambiguity in the trial court’s oral pronouncement, the sentencing order must be corrected to reflect the oral pronouncement. Only where there is an ambiguity in the oral pronouncement is there a need for the court to make a factual determination before making the correction. See Tory v. State, 686 So.2d 689 (Fla. 4th DCA 1996).

There is no ambiguity in this record. The trial court clearly pronounced a credit of 556 days time served. The case is therefore remanded to the trial court to correct the sentencing order to reflect the court’s oral pronouncement. Johnson v. State, 789 So.2d 1235 (Fla. 4th DCA 2001).

REVERSED AND REMANDED.

FARMER, C.J., SHAHOOD and MAY, JJ., concur.


text:
    Leo Paul COLANTUONO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2999.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.
    Carey Haughwout, Public Defender, and James W. Melntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order entered after an evidentiary hearing on a violation of probation. During the pendency of this appeal, the defendant filed a motion to correct certain technical errors in the sentencing order, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The court denied the motion. Defense counsel has now raised these errors in this appeal. The State agrees that the sentencing order needs correction. We therefore remand the ease to the trial court for correction of the following technical errors.

First, the trial court failed to enter a written sentencing order on count two after making its oral pronouncement. Second, the order refers to the original sentence on count two as “two years probation” instead of correctly reflecting the one year term imposed by the court. Third, the order refers to the substantive violation as having occurred on May 23, 2001, when it occurred on February 2, 2002. The case is remanded for the trial court to correct these errors. See Fla. R.App. P. 9.110(b), 9.020(g); Marinelli v. State, 706 So.2d 1374 (Fla. 2d DCA 1998); McBride v. State, 655 So.2d 239 (Fla. 4th DCA 1995).

STEVENSON, MAY, JJ„ and CHAVIES, MICHAEL B., Associate Judge, concur.


text:
    Ronald HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1030.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.140(b)(2)(A)(ii); Robinson v. State, 373 So.2d 898 (Fla.1979).

KLEIN, GROSS and MAY, JJ., concur.


author: SHARP, W., J.

text:
    Rick BEBER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2729.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.

      James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Beber appeals his convictions for two counts (Counts 1 and 4) of sexual battery (fellatio) of a minor, two counts (Counts 2 and 5) of lewd or lascivious molestation (masturbating a minor), one count (Count 3) of soliciting masturbation by a minor, one count (Count 7) of lewd or lascivious exhibition (masturbation in the presence of a minor), and one count (count 9) of providing obscene material to a minor (showing the minor an obscene magazine or photo). Beber received life sentences for the sexual battery counts; 15 years in prison for one lewd and lascivious molestation count (lewd and lascivious exhibition) and the solicitation count; 30 years for the second lewd and lascivious molestation count; and 5 years for the providing obscene material count, all to be served consecutively. On appeal, he argues that the evidence presented at trial was insufficient to support his convictions for sexual battery and providing obscene material to a minor. We agree in part, and reverse.

I. Sufficiency of Proof of Sexual Battery Counts.

The victim in this case was six years old when his parents discovered their son had possibly been sexually molested by Beber, his grandmother’s live-in boyfriend, while he spent the night or weekends at their apartment. Immediately after discovering these claims, the victim’s parents confronted Beber and the grandmother and contacted the police. The child was interviewed by Gayna Hensen, an employee with the Wuesthoff Hospital Child Protection Team, who had been specially trained to do forensic interviews with children. The interview was taped. At the time of the trial, the victim was 8 years old, and he was available to testify.

The prosecution intended to have the video tape played for the jury, in addition to presenting the child as a state’s witness. The prosecution made appropriate motions to have the tape admitted as substantive evidence, pursuant to section 90.803(23)(a), Florida Statutes. That section provides:

(23) Hearsay exception; statement of child victim.—
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; .... (Emphasis added)

The trial judge held a hearing on this matter with due notice to Beber. At the hearing, the victim’s mother and Hansen testified. The court ruled that the tape would be admitted at trial, and made sufficient findings to justify its admission: the two witnesses were credible sources of information, the methods of questioning the child were trustworthy, the language of the child was consistent with his age, there was no evidence he was coached, conditioned, or interviewed too many times, and the circumstances surrounding the videotaped interview offered sufficient safeguards of reliability to merit its admission and consideration as substantive evidence at the trial.

The defense does not question on appeal the correctness of the trial judge’s findings pursuant to section 90.083(23), the procedure employed in determining the tape’s admissibility, and the sufficiency of the testimony on which the court’s findings are based. Rather the defense relies on the fact that the tape, alone, provided the sole basis for proof of the two counts of sexual battery. In the course of the tape, the child told his interviewer that Beber put the child’s “private” (penis) in his mouth, two different times. However, at the trial, the child testified other improper sexual acts were done to him by Beber, and denied fellatio occurred.

At trial on direct examination, the child was unresponsive, often answering the prosecutor’s questions with “I don’t know,” or that he did not remember. When asked by the prosecutor what Beber touched the victim’s “private” with, the child answered “his hand.” The prosecutor began to ask “leading questions,” for which he was warned by the trial judge. The prosecutor tried again by asking: “Did he touch you in the bathtub with his mouth?” The defense objected, to the question as leading and the trial judge sustained the objection. The prosecutor finally asked the child: “Did he ever touch your private with anything besides his hand?” The child replied: “I don’t know.”

On cross-examination, the defense followed up this line of questioning. He also asked about what Beber touched the child with. The following exchange occurred:

Q. Did he touch you with his hands, right?
A. Yes.
Q. Anything else? He ever touch you with anything else?
A. No.
Q. Are you sure?
A. Yes.
Q. You swear?
A. Yes.
Q. Pinky finger?
A. Yes.
The defense also tried to impeach the child’s trial testimony with various inconsistencies contained in a pretrial deposition of the child. The inconsistencies primarily involved details of where and when and how often the various molestations occurred, not that they did not occur. However, in the deposition, the child apparently also said Beber touched his “private” only with his hands.

The defense argues on appeal that because the child’s testimony at trial was inconsistent with his testimony on the videotape and tended to refute it, the tape standing alone, provides a legally insufficient basis upon which to convict Beber of sexual battery. The defense cites State v. Moore, 485 So.2d 1279 (Fla.1986) and State v. Green, 667 So.2d 756 (Fla.1995), as controlling precedent for the concept that pri- or inconsistent statements made by witnesses who testify at trial but who recant the prior statements at trial, are insufficient as a matter of law to sustain guilt beyond a reasonable doubt in a criminal trial. In Moore, the inconsistent statements were admitted pursuant to section 90.801(2)(a), a different hearsay exception than the one at issue here.

In Green, a defendant was prosecuted and convicted of sexual abuse of a 14 year old victim, who was mentally retarded (IQ age 7). The child reported the abuse to her sister and again to the Child Protection Team, which videotaped her interview. Both her prior statement and the videotape were admitted at trial, pursuant to section 90.803(23). At trial, the child victim recanted her testimony that the defendant was her abuser. She accused two other men. The court concluded that:

To convict Green based solely on the prior inconsistent statements of the victim would indeed create too great a risk of convicting an innocent accused.

667 So.2d at 760. The court cautioned, however, that this does not mean inconsistent statements admitted under section 90.803(23) can never be used as substantive evidence “when other proper corroborating evidence is admitted. ” But in that case, as well as this one, there was no corroborating evidence.

However, in Department of Health and Rehabilitative Services v. M.B., 701 So.2d 1155 (Fla.1997), a dependency case, the court receded from Green and Moore. See also Conner v. State, 748 So.2d 950, 959 (Fla.2000). It said, pursuant to section 90.803(23), a child victim’s out-of-court statements could be admitted as substantive evidence, even if inconsistent with the child’s in-court testimony. The court quoted and agreed with Professor Erhardt’s treatise which suggests that if the out-of-court statement is admitted under a recognized hearsay exception or a statement pursuant to section 90.803(23), “which is surrounded by circumstantial guarantees of reliability,” it is admissible as substantive evidence even though inconsistent with the in-trial testimony of the child. Thus, perhaps corroborating evidence is not required where the reviewing court “has confidence” in the prior statement, to sustain a criminal conviction. However, the court then proceeded to distinguish the case before it because: 1) the child victim did not really recant her prior statements; she only said someone had sexually assaulted her, not that the defendant did not do it, and 2) this was a dependency case, not a criminal case.

The third district in Williams v. State, 714 So.2d 462 (Fla. 3d DCA 1997), concluded that prior inconsistent statements, which are recanted at trial, may serve as the sole basis to sustain a criminal conviction, if the out-of-court statements are admitted pursuant to a “firmly rooted” hearsay exception. In Williams, the statements were admitted at trial as “excited utterances” under section 90.803(2), which is an historically well-recognized hearsay exception.

The most recent court to address this issue is the fourth district in Mikler v. State, 829 So.2d 932 (Fla. 4th DCA 2002). This was a sexual battery and molestation case involving a child victim. A videotape of the child’s interview with detectives was admitted as substantive evidence pursuant to section 90.803(23). In the tape, the child described the act of fellatio the defendant perpetrated against her. At the trial, the child testified as to various other sex acts the defendant perpetrated against her, but she did not mention fellatio, and she was not cross-examined about it. The court indicated it agreed with Professor Erhardt’s Treatise, that a statement admitted under section 90.803(23), standing alone, would be sufficient to convict a defendant of a crime, even if inconsistent with the in-court testimony. That is dictum, however, because the court went on to distinguish the case before it from Green on two grounds: 1) in Green, the victim’s out-of-court statement “directly conflicted” with her testimony at trial and in that ease it did not, and 2) there was other corroborating evidence that a sexual attack had occurred (a DNA test, the nurse’s physical examination of the child, and the defendant’s statements to the police) making it “likely” fellatio was included.

This case is more difficult than Mikler to sustain a sexual battery conviction, based on the child’s video admitted pursuant to section 90.803(23). There is no corroborating evidence that fellatio occurred, unless one can properly consider as corroborating evidence, the child’s testimony that other sexual crimes occurred and draw therefrom an inference that fellatio also was perpetrated. That appears quite a stretch, given the state’s high burden of proof.

Also, in this case, the child’s in-court testimony was in “direct conflict” with the videotape, unlike Mikler, where the child’s in-court testimony simply omitted the crime of fellatio. On the videotape, the child victim in this case said fellatio occurred. In court, he testified on direct examination that he was only touched by the defendant’s hands, or that he did not know. And, on cross-examination, he swore that he was touched only by the defendant’s hands. One could argue, that this is merely “inconsistent” rather than in “direct conflict,” but in our view, resolution of this issue in such a manner would require courts to draw such a fine line of distinction as to make them appear to dance on the head of a pin. More certainty is needed in resolving legal issues, especially in criminal cases.

We resolve this case by concluding that the out-of-court statement of the child, admitted pursuant to section 90.803(23), is sufficient to sustain Beber’s conviction of sexual battery, even though there is no true corroborating evidence other than the child’s in court testimony that Beber perpetrated various other sexual crimes on him, and even though the child contradicted his videotaped statement in court, where the circumstances of the taped interview were surrounded with multiple safeguards of reliability, and nothing in this record objectively suggests a basis for this court to lack confidence in the criminal conviction.

II. Sufficiency of Proof of Providing Obscene Materials to a Minor.

At the trial, the prosecutor sought to present evidence to sustain the charges that Beber had shown the child an obscene videotape (Count 8) and obscene photographs or representations (Count 9). Sharon Roman, a police officer, testified the police searched the apartment where Beber had been living and where the various crimes allegedly took place. She said they found a stack of videotapes, a magazine underneath the seat pad of a chair, and a photograph on top of the refrigerator, lying flat, and not displayed. The tapes were viewed, but another investigator testified he found no pornography on them. Accordingly, the judge entered a judgment of acquittal on Count 8.

The magazine and photograph were arguably pornographic, as they depicted sex acts and nude males and females. The trial judge admitted them into evidence over objection of the defense on the ground that the child was not shown either the photograph or the magazine at the trial and it was not established that he had been shown these materials.

The state argued that this link had been made because the child agreed at the trial that Beber had shown him “bad magazines or dirty magazines.” However, in the next breath the child said he did not know if he had “ever” seen “any dirty pictures or anything.” On the video tape, he also testified Beber had shown him “magazines” with naked people on them and that in one of them a boy was touching a girl’s private and a girl was touching a boy’s private. But, he failed to identify which magazines he had been shown.

We think the proof in support of Count 9 was insufficient to sustain a criminal conviction for showing the child an “obscene” magazine or picture. § 847.0133(1). Because the child did not identify the magazine and picture which were admitted in evidence as the ones he had been shown, it was error to admit them in evidence, and to permit the jury to infer that these were the materials Beber had shown him. That left as the sole proof of this count the child’s “yes” response at trial to the question of whether Beber had shown him any “bad magazines or dirty magazines.”

For purposes of section 847.0133(1), “obscene” is defined in section 847.001(10) as:

(10) ‘Obscene’ means the status of material which:
(a) The average person applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;
(b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and
(c) Taken as a whole, lacks serous literary, artistic, political or scientific value.

This statutory definition appears to contemplate, in most cases, that the materials themselves will be submitted to a jury or finder of fact, for a determination that they are obscene, as beyond the pale of community standards, and that they lack any redeeming value. A child’s characterization of unidentified materials as “bad” or “dirty” simply does not cut it.

Accordingly, we affirm this case in all respects except for Count 9, which we reverse. A new sentencing need not take place, since reversal of this count and the vacating of the sentence for this count will not affect Beber’s other sentences.

AFFIRMED in part; REVERSED in part.

GRIFFIN, J., concurs.

PALMER, J., concurs .specially without opinion.

      . Section 794.011(2), Fla. Stat. (2001).

      . Section 800.04(5), Fla. Stat. (2001).

      . Section 800.04(6), Fla. Stat. (2001).

      . Section 800.04(7), Fla. Stat. (2001).

      . Section 847.0133, Fla. Stat. (2001).

      . This statute provides that:
      A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
      (a) Inconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceedings or in a deposition.

      . Charles W. Erhardt, Florida Evidence, § 803.23 at 701 (1996 ed).

      . In Conner v. State, 748 So.2d 950, 958 (Fla.2000), citing Dept. of H.R.S. v. M.B., 701 So.2d 1155, 1158 n. 4 (Fla.1997) which quoted Judy Yun, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1751 (1983), the supreme court discussed the elderly or disabled adult hearsay exception, analogizing to the child hearsay exception as follows:
      [T]he “victim’s out-of-court statements may, in fact, be more trustworthy than his or her in-court testimony” due to the stress and trauma of rehashing bad memories, hostile attacks on the child’s credibility, facing the alleged perpetrator again, and testifying against a close relative. In this situation, "children, if they replay at all, often give confused and inaccurate answers ... are susceptible to leading questions and often tailor their replies to appease the examining attorney.”
      The Conner court also cited to State v. Robinson, 153 Ariz. 191, 735 P.2d 801, 814 (Ariz.1987), where the Arizona supreme court observed:
      A young child’s spontaneous statements about so unusual a personal experience, made soon after the event, are at least as reliable as the child’s in-court testimony, given months later, after innumerable interviews and interrogations may have distorted the child’s memory. (Emphasis in original).

      . On the videotaped interview, the child said Beber made him watch a videotape of adults engaged in sexual intercourse. But as noted above, Count 8 failed for lack of proof. To make matters worse, on closing argument the prosecutor erroneously said the child (on the videotaped interview) had said he saw a picture — not a videotape — of sexual intercourse.

      . See generally, Ginzburg v. U.S., 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); Hamling v. U.S., 418 U.S. 87, 94 S.Ct 2887, 41 L.Ed.2d 590 (1974); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); State v. Aiuppa, 298 So.2d 391 (Fla.1974); Golden Dolphin No. 2, Inc. v. State Div. of Alcoholic Beverages & Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981).


author: THOMPSON, J.

text:
    Carl Joseph ROBERTO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-665.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.

      Robert J. Buonauro, P.A., Orlando, for Appellant.
    John P. Booth, Assistant General Counsel, Florida Department of Law Enforcement and William L. Camper, General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   THOMPSON, J.

Carl Joseph Roberto appeals a trial court order denying his request to compel the Florida Department of Law Enforcement (“FDLE”) to issue a certificate of eligibility pursuant to section 948.0585, Florida Statutes. The certificate of eligibility would have allowed him to have his conviction expunged. We affirm.

Roberto pled nolo contendere in 1981 to trafficking in methaqualone, a violation of section 893.135, Florida Statutes, and a first degree felony. He was adjudicated guilty and placed on ten years probation. His probation was terminated in 1988, and in September 2000, he received a pardon from the Office of Executive Clemency. The pardon read in part: “[Wlithout the right to own, possess, or use firearms since the Clemency Board does not grant the right to possess firearms to persons who reside outside the State of Florida.” The pardon also provided: “This pardon does not provide, and shall not be construed to provide, eligibility for expungement or sealing of criminal records, or to require other Boards or Agencies to grant favorable consideration in matters within their respective jurisdictions.” Thereafter, in spite of the clear language in the pardon, Roberto asked the FDLE for a certificate of eligibility to have his criminal record expunged. The request was denied because Roberto had been adjudicated guilty of the trafficking charge. Relying upon Doe v. State, 595 So.2d 212 (Fla. 5th DCA 1992), Roberto moved the circuit court for an order compelling FDLE to issue the certificate. The court treated the motion as petition for writ of mandamus and denied relief.

To have a criminal record expunged, a person must obtain a certificate of eligibility from the FDLE. § 943.0585 Fla. Stat. Section 943.0585(1) provides that a petition to expunge a criminal record is complete only when accompanied by a certificate of eligibility and a sworn statement that, among other things, the petitioner: “Has not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition pertains.” Roberto contends that the pardon had the effect of wiping out the conviction and that therefore he should not be deemed ineligible for an expunction based on the pardoned conviction. We disagree with this premise.

In Doe v. State, we reversed an order ruling that the petitioner was ineligible for expunction of his record because he had been convicted of the crime to which his petition pertained. The petitioner had received a “full and unconditional” pardon, and this court held that a full and unconditional pardon legally blots out the finding of guilt and removes all the legal consequences which flow from an adjudication of guilt. We stated that the pardonee is no longer legally considered “convicted” or “adjudicated guilty” of that crime. This court further rejected the argument that a pardon removes the disabilities that flow from an adjudication, but not the adjudication itself. This court stated that the argument failed to recognize the expansive nature of a full and unconditional pardon. Having in mind the fact that the governor’s pardon power derives from the constitution, we stated that the narrower construction of the statute would create a head-on confrontation between the power of the legislature to enact laws regarding convicted felons and the power of the executive to pardon convicted felons.

In Randall v. State, 791 So.2d 1238 (Fla. 1st DCA 2001), the First District disagreed with Doe and noted direct conflict. The instant case is distinguished from Doe and Randall in that Roberto’s pardon specifically precludes it from being construed to allow for expunction of Roberto’s conviction. That being so, this court does not need to reconsider Doe in light of the additional analysis in Randall, and the constitutional issue alluded to in Doe does not obtain in the instant case because it is the pardon itself which circumscribes Roberto’s rights.

AFFIRMED.

SAWAYA, C.J. and TORPY, J„ concur.

      . By agreement of the parties, Roberto’s motion to compel was treated by the trial court as a petition for writ of mandamus. See Gay v. State, 697 So.2d 179 (Fla. 1st DCA 1997) (holding an amended motion to compel the release of records stated a preliminary basis for mandamus relief).

      . Article IV, section 8 of the Florida Constitution provides: (a) Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.