text:
    Eric NEWSOM, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2060.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant challenges his conviction for violating the registration and reporting requirements of section 943.0435, Florida Statutes (1998) (the “Reporting Act”), which requires a “sexual offender” to register and report upon release from prison. Appellant argues that the statute does not apply to him because, but for an illegal sentence, he would have been released from prison prior to the effective date of the statute. We affirm.

Appellant was convicted of sexual battery, robbery and dealing in stolen property. On October 30,1987, he was sentenced to 40 years in prison (40 years for sexual battery, 5 years for robbery, and 5 years for dealing in stolen property, the latter two sentences were to run concurrently with the 40-year sentence). His sentence on the sexual battery charge was illegal because it exceeded the guidelines then in effect, but the illegal sentence was not corrected until January of 2000, based on a motion filed by Appellant in December of 1999. At that time, he was re-sentenced to 15 years on the sexual battery charge to run consecutive to 5-year concurrent sentences on the robbery and dealing in stolen property charges. The sentence was imposed nunc pro tunc to October 30, 1987.

In Appellant’s Motion to Dismiss the instant charge, to which the State did not traverse or otherwise contest the facts, Appellant alleged that had he been given a legal sentence at the outset, through operation of gain time, his release date would have been in 1992 or 1993, several years prior to the enactment of the Reporting Act. In support of his argument, Appellant relies upon State v. Atkinson, 831 So.2d 172 (Fla.2002).

In Atkinson, the court was presented with a similar situation involving the Jimmy Ryce Act. There, Atkinson had been sentenced for an offense that qualified under the Ryce Act. Pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), Atkinson was entitled to be re-sentenced. The new sentence, had it been given originally, would have expired prior to the enactment of the Ryce Act, even without consideration of gain time credit. The issue in Atkinson was whether the language of the Ryce Act, which purported to apply to “all persons currently in custody [at the time of the Act’s enactment],” could be applied to a person such as Atkinson who, although in custody, was not in “lawful custody,” at the time of the Act’s passage. The court concluded that to construe the Ryce Act literally “would result in unreasonable, harsh or absurd consequences.” Atkinson, 831 So.2d. at 174. Based thereon, the court approved the lower court’s construction of the statute, which limited its application to persons in “lawful” custody at the time of the Act’s passage.

We think Atkinson is distinguishable for two reasons. First, the language of the Reporting Act is materially different from the language of the Ryce Act. The Reporting Act applies to persons who are “released on or after October 1, 1997, from the sanction imposed for any conviction of an [enumerated offense].” § 943.0435(l)(a)2., Fla. Stat. (1998). This language is plain, and clearly applies to Appellant. Moreover, its literal interpretation leads to a result that is neither harsh, absurd, nor unreasonable. Unlike the Ryce Act, which provides for continued commitment for an indefinite period, the Reporting Act’s consequences are far less harsh. It is not absurd or unreasonable for the legislature to require that a convicted sex offender succumb to reporting and registration even under the circumstances of this case. Second, Atkinson dealt with a situation where there were no circumstances under which the defendant legally could have been held until the date on which the Ryce Act took effect. Here, Appellant’s release prior to the effective date of the Reporting Act could only have been accomplished through the operation of administrative gain time.

AFFIRMED.

THOMPSON and MONACO, JJ„ concur.

      . No explanation is contained in the record for why it took so long for Appellant to file the rule 3.800 motion, but commendably, the trial judge, R. James Stroker, acted promptly in ruling on the motion.

      . §§ 394.910-394.931, Fla. Stat.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Steven Dale LILLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4408.
    District Court of Appeal of Florida, First District.
    March 16, 2004.
    Rehearing Denied April 15, 2004.
    Nancy A. Daniels, Public Defender; Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Johnson v. State, 696 So.2d 326, 331 (Fla.1997); Peterson v. State, 382 So.2d 701, 702 (Fla.1980); Antone v. State, 382 So.2d 1205, 1212 (Fla. 1980).

KAHN, BENTON, and VAN NORTWICK, JJ„ concur.


text:
    PROGRESSIVE CONSUMERS INSURANCE CO., Petitioner, v. Barbara A. DAY, Respondent.
    No. 1D03-2768.
    District Court of Appeal of Florida, First District.
    March 16, 2004.
    Rehearing Denied April 14, 2004.

      H. Lester McFatter, and Harold R. Mardenborough, of McFarlain & Cassedy, P.A., Tallahassee, for Petitioner.
    John Barry Kelly II, of Kelly & Associates of Florida, LLC, Pensacola, for Respondent.
   PER CURIAM.

Petitioner Progressive Consumers Insurance Company petitions for a writ of certiorari, asking this Court to quash the trial court’s order denying petitioner’s motion to dismiss the respondent Barbara Day’s bad faith claim against petitioner. Petitioner has failed to show that it will suffer irreparable harm that cannot be adequately remedied on appeal. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099-1100 (Fla.1987) (stating that while it is often appropriate to review orders granting discovery by certiorari, motions to dismiss and motions to strike claims should not be reviewed by certiorari); Florida Fish & Wildlife Comm’n v. Pringle, 770 So.2d 696, 697 (Fla. 1st DCA 2000) (stating that the time and expense of litigation that would be dismissed if certio-rari were granted does not constitute irreparable injury); Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002) (denying certiorari review because the denial of a motion to dismiss a bad faith action can be adequately reviewed on plenary review); Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So.2d 998, 1002 (Fla. 4th DCA 1987) (stating that taking certiorari review of a motion to dismiss a bad faith claim should not be treated differently than any other motion to dismiss because of the nature of the action).

We, therefore, deny the petition without prejudice to petitioner seeking a writ of certiorari in this Court if the trial court compels discovery of privileged or protected documents. See Progressive Am. Ins. Co. v. Lanier, 800 So.2d 689, 691 (Fla. 1st DCA 2001) (granting certiorari review of a motion to compel certain allegedly protected documents because the “erroneous production of [the privileged/protected] documents cannot be remedied on appeal”); Allstate Ins. Co. v. Am. S. Home Ins. Co., 680 So.2d 1114, 1117 (Fla. 1st DCA 1996) (granting certiorari review where the trial court compelled the production of documents protected by the attorney-client privilege and work-product doctrine).

DENIED without prejudice.

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


text:
    Earl L. HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-711.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.
    Rehearing Denied April 26, 2004.
    Earl Holmes, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order denying the motion to correct illegal sentence is affirmed. The initial brief filed in this appeal raises claims that were not presented in the motion below. Affirmance is without prejudice for appellant to raise these claims by proper motion in the trial court. See Penrod v. State, 621 So.2d 473 (Fla. 5th DCA 1993). See generally Finney v. State, 660 So.2d 674, 683 (Fla.1995) (stating that in order to be cognizable on appeal, claims must first be raised in the trial court).

GUNTHER, WARNER and GROSS, JJ., concur.


text:
    Gary JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3061.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Gary Johnson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before LEVY, RAMIREZ, and SHEPHERD, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Upon the State’s proper confession of error in calculation filed in this case, as well as our own independent review of the record, the trial court’s order is reversed and this cause is remanded with directions that Johnson be granted an additional twenty-nine days credit for time served, thereby making the total amount of credits equal to 160 days.

Reversed and remanded.


author: PER CURIAM. SAWAYA, C.J.,

text:
    Wylie M. VICKERY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3128.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2004.

      Wylie M. Vickery, Crawfordville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The defendant, Wylie M. Vick-ery, filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, claiming, inter alia, ineffective assistance of his trial counsel. Vick-ery, convicted of lewd or lascivious assault on a child as charged, asserted that his trial counsel was ineffective because she did not request a jury instruction regarding the lesser included offense of simple battery. The trial court summarily denied Vickery’s motion without an evidentiary hearing. “A motion for postconviction relief can be denied without an evidentiary hearing when the motion and the record conclusively demonstrate that the movant is entitled to no relief.” Kennedy v. State, 547 So.2d 912, 913 (Fla.1989) (citing Agan v. State, 503 So.2d 1254 (Fla.1987); O’Callaghan v. State, 461 So.2d 1354 (Fla.1984)). We determine that the trial court incorrectly denied Vickery’s motion.

The trial court denied Vickery’s claim for ineffective assistance of counsel based on the decision in Sanders v. State, 847 So.2d 504 (Fla. 1st DCA 2003). In Sanders, the court held that in collateral proceedings under rule 3.850 regarding a claim for ineffective assistance of counsel, a defendant cannot establish that there is a reasonable probability that the result would have been different had trial counsel requested and received the instruction regarding the lesser included offense. Instead, the most that the defendant can establish is conjecture and speculation that the jury would decline to follow the law and grant the defendant a jury pardon. However, the decision in Sanders conflicts with our decisions in Bethea v. State, 767 So.2d 630 (Fla. 5th DCA 2000), and Oehling v. State, 659 So.2d 1226 (Fla. 5th DCA 1995), wherein this court held that failure of trial counsel to request a lesser included offense is a basis for a colorable claim of ineffective assistance of counsel under Florida Rule of Criminal Procedure 3.850. Because the trial court summarily denied Vickery’s motion, we reverse and remand for a hearing regarding this specific claim. As to the other claims raised by Vickery in his motion, we affirm.

AFFIRMED IN PART; REVERSED IN PART.

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

SAWAYA, C.J., concurs and concurs specially, with opinion.

SAWAYA, C.J.,

concurring and concurring specially.

I reluctantly concur in the majority decision to reverse and remand for an evi-dentiary hearing regarding the ineffective assistance of counsel claim raised by Vick-ery. I fully concur with the majority that the trial court’s denial of the remaining claims raised by Vickery in his motion should be affirmed. As to the ineffective assistance of counsel claim, the issue is whether trial counsel’s failure to request a jury instruction regarding a lesser included offense presents a colorable claim that requires an evidentiary hearing under Florida Rule of Criminal Procedure ,3.850. For reasons I will now explain, I believe that such a claim may be summarily denied without a hearing.

The reason for the rule that requires the trial court to instruct the jury on lesser included offenses is based on the concept of jury pardons. See State v. Estevez, 753 So.2d 1 (Fla.1999); Amado v. State, 585 So.2d 282, 283 (Fla.1991) (“We still allow juries to convict on lesser offenses under our recognition of the jury’s right to exercise its ‘pardon power.’ ”) (citation omitted); State v. Wimberly, 498 So.2d 929, 932 (Fla.1986) (“The requirement that a trial judge must give a requested instruction on a necessarily lesser included offense is bottomed upon a recognition of the jury’s right to exercise its ‘pardon power.’ ”); State v. Baker, 456 So.2d 419 (Fla. 1984); see also Firsher v. State, 834 So.2d 921 (Fla. 3d DCA), review denied, 859 So.2d 514 (Fla.2003); Mosley v. State, 482 So.2d 530, 531-32 (Fla. 1st DCA 1986) (“It is only because the Supreme Court of Florida has adopted the phenomenon of the ‘jury pardon’ as part of the jurisprudence of our State that a defendant can be heard to complain about the failure to instruct on lesser offenses notwithstanding the fact that he has been properly proved and found guilty of the offense charged.”) (footnote .omitted); Bufford v. State, 473 So.2d 795, 796 (Fla. 5th DCA 1985) (“The requirement that the jury be charged on lesser included offenses is solely based on the jury’s pardon power.”), review denied, 482 So.2d 347 (Fla.1986). In Baker, the court described the jury pardon as

“the nonconstitutional right of ... giving the jury an opportunity to find the accused guilty of an offense lesser in severity of punishment than that with which he was charged.” Baker, 425 So.2d at 53 (Cowart, J., dissenting). Jury pardons are the province of the jury, and a trial court is not permitted to invade that province. Brown [v. State, 206 So.2d 377 (Fla.1968)].

Baker, 456 So.2d at 420-21.

The jury pardon concept has become ingrained in the rules of criminal procedure relating to determination of degree of offense and determination of attempts and lesser included offenses. See Fla. R.Crim. P. 3.490 & 3.510(b). Moreover, the Florida courts have fully embraced it as an integral part of our jurisprudence. See Buf-ford. Hence, the failure to instruct the jury on a lesser included offense can constitute reversible error per se when the issue is raised on direct appeal. See Piccioni v. State, 833 So.2d 247 (Fla. 4th DCA 2002). In Piccioni, the court explained:

When requested by the defendant, an instruction on a category two permissive lesser-included offense must be given where “(1) the information alleges all of the statutory elements of the permissive lesser-included offense, and (2) there is some evidence adduced at trial establishing all of the elements.” Wimberly v. State, 697 So.2d 1272, 1273 (Fla. 4th DCA 1997); see also Amado v. State, 585 So.2d 282, 282 (Fla.1991).
The failure to instruct the jury on a permissive lesser-included offense can sometimes be harmless error. See Henig [v. State], 820 So.2d [1037] at 1039 [Fla. 4th DCA 2002]. Where the absent lesser-included offense is only one step removed from the charged offense, however, the failure to give the requested instruction is reversible error per se. See State v. Abreau, 363 So.2d 1063, 1064 (Fla,1978); Moms v. State, 658 So.2d 155, 156 (Fla. 1st DCA 1995).

Piccioni, 833 So.2d at 248. The courts also hold that a colorable claim of ineffec-five assistance of counsel is presented when trial counsel fails to request instructions on lesser included offenses. See Willis v. State, 840 So.2d 1135 (Fla. 4th DCA 2003); Firsher; Bethea v. State, 767 So.2d 630 (Fla. 5th DCA 2000); Oehling v. State, 659 So.2d 1226 (Fla. 5th DCA 1995).

There are, however, very clear differences between the standards that apply in a direct appeal and those applicable in collateral proceedings, as the court explained in Sanders v. State, 847 So.2d 504 (Fla. 1st DCA 2003). These differences clearly make reversal on direct appeal for the trial court’s failure to give an instruction on a requested lesser included offense logical, and relief granted in collateral proceedings for trial counsel’s failure to request such an instruction illogical. More importantly, use of the jury’s pardon power as the rationale for ineffective assistance of counsel claims in collateral proceedings is clearly inconsistent with the holding of the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This is particularly significant because the Florida courts adopted the standard for ineffective assistance of counsel claims directly from Strickland. See Vining v. State, 827 So.2d 201 (Fla.2002); Bruno v. State, 807 So.2d 55 (Fla.2001); Valle v. State, 705 So.2d 1331 (Fla.1997).

Strickland requires that a defendant claiming ineffective assistance of counsel must show: (1) that counsel’s performance was deficient, and (2) that the deficient performance resulted in prejudice. 466 U.S. at 686, 104 S.Ct. 2052. When reviewing such a claim, the first prong requires an appellate court to determine whether, in light of all the circumstances, counsel’s acts or omissions fell outside the wide range of professionally competent assistance. Id. at 690, 104 S.Ct. 2052. The second prong requires the appellate court to determine whether there is a reasonable probability that but for the deficiency, the result of the proceeding would have been different. Id. at 695, 104 S.Ct. 2052. It must be emphasized that the defendant bears the burden of establishing a prima facie case based upon a legally valid claim. See Kennedy v. State, 547 So.2d 912 (Fla. 1989). “The standard of review for a trial court’s ruling on an ineffectiveness claim also is two-pronged: The appellate court must defer to the trial court’s findings on factual issues but must review the court’s ultimate conclusions on the [performance] and prejudice prongs de novo.” Bruno, 807 So.2d at 61-62 (footnote omitted).

It is to the second prong that I will turn my attention. See Kennedy, 547 So.2d at 914 (“A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.”) (citation omitted). In Strickland, the Court attempted to define the contours of the considerations that should go into a determination whether prejudice has been established when it stated:

In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like. A dfefendant has no entitlement to the luck of a lawless decision maker, even if a lawless decision cannot be.reviewed. The assessment of prejudice should proceed on the assumption that the decision maker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncra-cies of the particular decision maker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel’s selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge’s sentencing practices, should not be considered in the prejudice determination.

Strickland, 466 U.S. at 694-95, 104 S.Ct. 2052.

The court in Strickland clearly established that the prejudice prong is not to be determined by a defendant’s entitlement to the luck of a verdict rendered by a lawless jury. As I will explain, when a jury renders a jury pardon in Florida, it violates its oath and the instructions by the trial court that the verdict must be based on the law and the evidence. Moreover, the Court in Strickland made it clear that speculation or the idiosyncracies of the jury for leniency are not relevant factors to be considered in determining whether the prejudice prong has been met. In my view, a finding of prejudice based on the jury pardon is nothing more than speculation of what the jury might have done had a lesser included charge been given to them, and it is certainly based on the idiosyncracy of the jury for leniency. Moreover, when the jury returns a verdict of guilty to the crime charged in the information, such a finding overlooks the presumption that the jury impartially applied the standards that it was given to decide the case.

In Florida, all jurors must take an oath to “well and truly try the issues between the State of Florida and the defendant and render a true verdict according to the law and the evidence.” Fla. R.Crim. P. 3.360. When it is selected, the jury is given a preliminary instruction that provides:

It is your solemn responsibility to determine if the State has proved its accusation beyond a reasonable doubt against (defendant). Your verdict must be based solely on the evidence, or lack of evidence, and the law.

Fla. Std. Jury Instr. (Crim.) 2.1. The instruction given to the jury just before it retires to deliberate provides:

In closing, let me remind you that it is important that you follow the law spelled out in these instructions in deciding your verdict. There are no other laws that apply to this case. Even if you do not like the laws that must be applied, you must use them. For two centuries we have lived by the constitution and the law. No juror has the right to violate rules we all share.

Fla. Std. Jury Instr. (Crim.) 2.08.

The standard jury instruction concerning lesser included offenses instructs the jury that they are to consider lesser included offenses only if the evidence does not establish the original charge. This standard jury instruction provides in pertinent part:

In considering the evidence, you should consider the possibility that although the
evidence may not convince you that the defendant committed the main crime[s] of which [he][she] is accused, there may be evidence that [he][she] committed other acts that would constitute a lesser included crime [or crimes]. Therefore, if you decide that the main accusation has not been proved beyond a reasonable doubt, you will next need to decide if the defendant is guilty of any lesser included crime.

Fla. Std. Jury Instr. (Crim.) 3.4. The Court in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), summarized the general principles contained in these jury instructions as follows:

Jurors, of course, take an oath to follow the law as charged, and they are expected to follow it. See Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). To this end trials generally begin with voir dire, by judge or counsel, seeking to identify those jurors who for whatever reason may be unwilling or unable to follow the law and render an impartial verdict on the facts and the evidence. But with few exceptions, see McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984); Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982), once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury’s collective judgment. Courts have always resisted inquiring into a jury’s thought processes, see McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Fed. Rule Evid. 606(b) (stating that jurors are generally incompetent to testify concerning jury deliberations); through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.

Powell, 469 U.S. at 66-67, 105 S.Ct. 471.

Hence, it is clear that the jury must base its verdict on the law and the evidence; not on sympathy or leniency. In order to prevent a verdict from being based on jury sympathy and in order to curb the exercise of the jury pardon, the trial courts are not allowed to instruct the jury on the sentence a defendant may receive if convicted. See Fla. R.Crim. P. 3.390(a); Legette v. State, 718 So.2d 878 (Fla. 4th DCA 1998). The instructions that the jury is given are clearly not compatible with a concomitant power to pardon and if a jury possesses this as a right, the question arises why the jury is not instructed that it has it. The question also arises how the courts of this state can premise a finding of prejudice, under Strickland, on the supposed exercise by a jury of a right that it does not even know it has, especially in light of jury instructions that clearly indicate that such a right does not even exist.

It is clear to me that when a jury grants a pardon to a defendant by finding him or her guilty of a lesser included offense when the state has proven guilt beyond a reasonable doubt regarding the offense charged in the information, the jury violates the oath it took and the instructions given it by the trial court. I also believe that when the jury has convicted the defendant as charged, the presumption that it followed the law should be indulged, ie., that the charge was proven beyond a reasonable doubt. See Strickland. It is, therefore, clear that a jury pardon is indeed the decision of a lawless decision maker that is based on the idiosyncrasies of the jury for leniency. This is just the sort of verdict that the Court in Strickland said must not form the basis for a finding of prejudice under the second prong of the Strickland standard. Speculation on what a lawless jury might do if given the opportunity to violate its oath and the law certainly does not establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

If it were not for the decisions of this court in Bethea and Oehling, I would vote to affirm the trial court’s summary denial of Vickery’s claim. If the courts of Florida are to continue to adhere to the jury pardon rationale as a basis for finding prejudice under Strickland, I believe that.such a finding should be limited to instances where, as in the instant case, no lesser included Instructions were given and the jury was left with an all or nothing choice of either convicting as charged or acquitting the defendant. In cases where instructions were given on one or more lesser included offenses but one or more were left out, it is clear to me that if the jury is not going to be concerned with following the law or basing its decision on the evidence, the jury will likewise not be overly concerned with the selection of which lesser offense on which to exercise its pardon power. Hence, in this instance, it seems only logical to conclude that if the jury did not pardon with the lesser included instructions it was given, the jury was not inclined to exercise that power in the first place.

      . In Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), the Court explained the concept of a jury pardon in the context of inconsistent verdicts:
      Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.... As was said in Steclder v. United States, [7 F.2d 59, 60 (2d Cir.1925) ]:
      “The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that . does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.”

        Dunn, 284 U.S. at 393, 52 S.Ct., 189 (citations omitted) (emphasis added). I do not believe that a jury pardon should be considered a right that has been bestowed upon the jury pursuant to law; rather, I believe that it is an error that may not be corrected. The basis for the jury pardon concept derives from the prohibition of inquiring into the jury's verdict and the fundamental constitutional principle of double jeopardy. See Potts v. State, 430 So.2d 900 (Fla. 1982). As this court explained in' Bufford v. State, 473 So.2d 795 (Fla. 5th DCA 1985), review denied, 482 So.2d 347 (Fla. 1986):

        It also serves to give the jury the power to convict for a lesser offense when there has been a failure of proof as to an element of the greater offense. While the jury's "pardon power” is inherent in our system of criminal justice, the exercise of that power has not been encouraged by the courts because it conflicts with the duty of the jury to bring in a verdict in accordance with the law. See Gilford v. State, 313 So.2d 729 (Fla. 1975). Here, the jury’s duty was to return a verdict consistent with the charge against Bufford and the evidence presented at trial. Since that duty was the substance of the court’s instruction, we ñnd no error and affirm.

        Bufford, 473 So.2d at 796 (emphasis added).

      . Florida Rule of Criminal Procedure 3.360 specifically provides:
      The following oath shall be administered to the jurors: "Do you solemnly swear (or affirm) that you will well and truly try the issues between the State of Florida and the defendant and render a true verdict according to the law and the evidence, so help you God?” If any juror affirms, the clause "so help you God” shall'be omitted.


text:
    Laura DYE, Appellant, v. ADVANTAGE VENTURE PARTNERS, LTD., et al., Appellee.
    No. 5D03-1956.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2004.
    Jamie Billotte Moses and R. Gavin Mac-Kinnon of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P. A., Orlando, for Appellant.
    Frank M. Hammer and Richard E. Mitchell of Gray Robinson, P. A., Orlando and Christine A. Donoghue of Gray Robinson, P. A, Tampa, for Appellee.
   PER CURIAM.

Laura Dye appeals a final order dismissing her second amended complaint with prejudice. Dye argues that the trial court erred in dismissing her complaint as it adequately stated causes of action for fraud in the inducement, piercing the corporate veil, quantum meruit and tortious interference. We affirm in part and reverse in part.

In reviewing the propriety of an order dismissing a complaint, we confíne our analysis to the four corners of the complaint and accept all well pled allegations as true. Because the matter presents a question of law, we review the matter de novo. Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175 (Fla. 5th DCA 2001). Having carefully reviewed the complaint, we agree that the trial court properly dismissed with prejudice each of the counts in Dye’s second amended complaint except for count IX, tortious interference and count X, quantum meruit. Those counts plead the requisite facts to establish the causes of action. See Toledo v. Hillsborough County Hosp. Auth., 841 So.2d 482 (Fla. 2d DCA 2003) (setting forth the four elements that must be pled in an action for tortious interference); Hull & Co., Inc. v. Thomas, 834 So.2d 904 (Fla. 4th DCA 2003) (setting forth the requisite elements to plead a claim for quantum meruit/quasi contract). With respect to those claims, the matters raised in the appellees’ motion to dismiss are more appropriately asserted as defenses.

We reverse the order dismissing Dye’s claim for quantum meruit and tortious interference, but affirm the remainder of the order dismissing the other counts with prejudice.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

PETERSON, PALMER and ORFINGER, JJ., concur.


author: MONACO, J.

text:
    Yvondia HERRING, Appellant, v. Clairmont O. ASHBY, Appellee.
    No. 5D03-1281.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2004.
    Linda D. Schoonover of Linda D. Schoonover, P.A., Altamonte Springs, for Appellant.

      Robert B. Branson and John Raffaelli of The Law Office of Robert B. Branson, Orlando, for Appellee.
   MONACO, J.

Yvondia Herring asserts the commission of a variety of errors by the trial court in this appeal from a final judgment of dissolution of marriage. We detect only one matter that requires correction.

Because there are no findings of fact contained in the judgment related to child support, as required by section 61.30, Florida Statutes (2003), we conclude that we must reverse on this point. If a trial court does not articulate findings regarding the actual income of the parties or any adjustments to income, a reviewing court cannot ascertain whether a child support award is within the guidelines. See Manolakos v. Manolakos, 871 So.2d 258, 2004 WL 384151 (Fla. 4th DCA Feb.11, 2004); Levi v. Levi 780 So.2d 261 (Fla. 3d DCA 2001). Here, there are no findings concerning the amount of income of either party, nor are we provided with any information concerning the manner in which the award of child support was computed. We are, thus, unable to examine meaningfully the matter of imputed income and the total amount of child support awarded. Accordingly, we affirm the final judgment in all respects except for the award of child support, and remand to the trial court for specific findings to support the imputed income amount and the total amount of child support.

AFFIRMED in part,' REVERSED in part, REMANDED.

SHARP, W., and TORPY, JJ., concur.


author: PETERSON, J.

text:
    WINNER FL, LLC, etc., Appellant, v. APAC-FLORIDA, INC., Appellee.
    No. 5D02-3269.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    Michael A. Tessitore and F. Lee Morrison of McClane Tessitore, Orlando, for Appellant.

      Dana G. Toole of Dunlap & Toole, P.A., Tallahassee, for Appellee.
   PETERSON, J.

Winner FL, LLC, (“Winner”), appeals a summary final judgment entered in favor of APAC-Florida, Inc., (“APAC”), in the foreclosure of a mechanics lien initiated by APAC. APAC is a paving contractor that contracted with Winner to resurface Winner’s hotel parking area and complete other construction items. We reverse because issues of fact remain.

The unresolved issues should have precluded the trial court from granting summary judgment to APAC, the movant, who had the burden of proving conclusively the non-existence of any genuine issue of material fact. E.g., City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000). Issues remain regarding the unfinished construction of an island in Winner’s parking lot, timing of paving of the main parking lot, water pooling and flooding and water lines damaged during construction. Discussion of these items follows, but our concentration on these items is not to be interpreted as a restriction upon the parties or the trial court to consider other issues upon remand.

I. THE ISLAND

The contract required APAC to “Sawcut and remove existing base/asphalt for new planter” in Item 2 and “Furnish and install 6” Extruded curb (new island and edge of drive)” in Item 5. Winner contends that APAC failed to complete the island and APAC does not deny it had the burden to construct an island but asserts that it was excused from doing so because Winner did not provide engineering drawings. The trial court’s reason for granting summary judgment on this issue was that the contract did not provide any specific price for the island and Winner did not carry its burden to prove any damages for this incomplete item.

The contract contains no provision that would place the burden of engineering drawings on either party nor does it indicate engineering drawings were required for the project. This issue of fact is unresolved as is the issue of pricing for the construction. The absence of a specific price in the contract for the construction of the island does not eliminate the possibility that it could not have been included in the total contract price.

Winner, as the non-moving party, was not required to produce evidence at APAC’s summary judgment hearing in order to prove its case. Available inferences are allowable in order to survive a motion for summary judgment and it is a reasonable inference that if APAC had a burden to construct the island and failed to complete that construction, Winner incurred damages. See, e.g., Platel v. Moronda Homes, Inc., 423 So.2d 627 (Fla. 5th DCA 1982).

II. TIMING OF PAVING

Paragraph 6 of the contract provides that: “Pricing includes paving main lots over a two day period and during Monday-Thursday.” The judgment confusingly indicates that no language is included in the contract that would require “all” paving work to be completed within five days. Winner claims the provision was inserted in order to prevent work on its parking area from interfering with its primary weekend guest revenue and that this provision was violated resulting in loss of revenue. APAC claims that the provision has no relation to guest traffic; it relates only to the “pricing” of the job. These varying interpretations plainly indicate the existence of a material issue of fact that must be resolved by the trier of fact and not by summary judgment.

III.WATER POOLING AND FLOODING

Winner claims that APAC’s paving altered the existing drainage pattern causing flooding and improper draining and that the condition did not exist prior to APAC’s paving. APAC and the final judgment rely upon paragraph 10 of the contract that provides:

Asphalt resurfacing to conform to the existing drainage patterns, and may be restricted by existing elevation requirements, therefore, 100% positive drainage cannot be assured.

We believe that a significant difference exists between Winner’s assertion that significant pooling and poor drainage of surface water occurred that did not exist prior to APAC’s paving and the assertion that perfect or 100% drainage cannot be assured after the paving. This issue remains unsolved.

IV.DAMAGED WATER LINES

During APAC’s construction, two water supply lines to Winner’s hotel were damaged. Winner contends that the event caused two of its buildings to be without water for two days and that it suffered damages in the amount of $40,000. APAC contends that the lines were immediately repaired and claimed, at one point, that the lines were for irrigation rather than supply lines to the hotel.

Athough the trial court accepted the contention that two water supply lines were broken, it dismissed Winner’s preliminary estimate of lost revenue and accepted APAC’s contention that the break was inevitable. Damages from the broken lines could have been inferred and an issue of fact remains as to whether the break was inevitable and the time period in which the lines remained unrepaired.

V.ATTORNEY’S FEES

Both parties have requested an award of attorneys’ fees as a prevailing party pursuant to section 713.29, Florida Statutes (2000). We deny APAC’s motion for fees but conditionally grant recovery of Winner’s appellate attorney’s fees if it prevails before the trial court upon remand.

VI.CONCLUSION

The summary final judgment is vacated and the matter remanded for further proceedings.

REVERSED AND REMANDED.

SHARP, W. and TORPY, JJ„ concur.

      . Winner counterclaimed and although the trial court did not consider the counterclaim on its merits, counsel advised this court, during oral arguments, that the summary final judgment resolved the issues raised in that counterclaim.


text:
    Rayon PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-321.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.

      Rayon Payne, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Rayon Payne [“Payne”] appeals the summary denial of his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

In 1999, Payne was charged with five counts of possession of stolen or counterfeit credit cards, two counts of fraudulent use of credit cards to obtain more than $100 in value, one count of third-degree grand theft of $10,000 or more, two counts of third-degree grand theft, one count of petit theft and one count of scheme to defraud. Pursuant to a plea bargain, on March 9, 2000, he pled no contest to one count of possession of stolen or counterfeit cards and one count of scheme to defraud and the State nol prossed the remaining charges. He was sentenced the same day to one-day time served and two consecutive five-year terms of probation. No direct appeal was filed.

In his rule 3.850 motion, Payne contends that his plea was involuntary because he is not a United States citizen, the trial court failed to advise him of the possible consequence of deportation during the plea colloquy, in violation of Florida Rule of Criminal Procedure 3.172(c)(8), and the possibility of deportation was not mentioned by defense counsel or the state attorney. He also alleges that he was unaware that his plea could result in deportation until the fall of 2002. He claims that he has now been threatened with deportation because of the plea and that had he known of this possible consequence, he would not have entered the plea.

Payne also alleged that while on probation for these criminal convictions in 2002, he was charged with sexual battery. Accordingly, an affidavit of violation of probation was issued in this case. A plea bargain was offered for concurrent terms in both cases. Payne claims that his trial counsel was unprepared to properly advise him, and that counsel improperly advised him to accept the plea offer. He was sentenced to ten years for the sexual battery and was given concurrent five-year terms for the convictions in this ease. He filed a timely motion to withdraw plea, which was denied. Payne then appealed his conviction and sentence for sexual battery and the probation revocation in this case. However, no issues relating to this case were raised. This court per curiam affirmed the judgments and convictions in both cases. See Payne v. State, 847 So.2d 486 (Fla. 5th DCA 2003).

The trial court correctly denied Payne’s motion for post-conviction relief. The trial court found that even if it were shown that Payne will be deported, he failed to allege or show that the deportation would be based on his convictions in this case, since he admits that he was convicted of sexual battery. Because Payne was subject to deportation based on this felony .conviction, regardless of his plea to these earlier felonies, he cannot make the requisite showing of prejudice. See Peart v. State, 756 So.2d 42 (Fla.2000).

In Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002), review denied, 842 So.2d 845 (Fla.2003), the court held that where a defendant would be subject to deportation in light of a prior felony conviction, the defendant cannot make the showing of prejudice arising from the failure to advise of deportation consequences at a subsequent plea. See also Pena v. State, 837 So.2d 495 (Fla. 1st DCA 2003); State v. Oakley, 715 So.2d 956 (Fla. 4th DCA 1998). See also Bellevue v. State, 794 So.2d 730 (Fla. 3d DCA 2001).

Payne asserts that he was interviewed in the fall of 2002 by a federal immigration agent who informed him that he would be deported based on the sexual-battery case, and that he was later served with papers from the Immigration and Naturalization Service [“INS”] listing both case numbers. Payne has also filed a motion to supplement the record with the INS documents he received. The INS notice lists both cases and the grounds of deportation for both cases.

As to Payne’s claim that his plea to violating probation was involuntary due to counsel’s mistaken belief that he was only pleading to the new law violation, not the probation violation, the trial court found that it is clear that Payne’s probation would have been revoked anyway and there is no reasonable probability that the outcome of the proceeding could have been different.

AFFIRMED.

SAWAYA, C.J., GRIFFIN and PLEUS, JJ., concur.


author: SHARP, W., J.

text:
    Russell RUSSMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3621.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Russman appeals from his judgments and sentences for burglary of a dwelling with a firearm, possession of a short-barreled shotgun, theft of a firearm and resisting an officer without violence. We affirm, but strike a condition of the probation order.

We find Russman’s argument that the prosecutor’s remarks made during closing argument were “fairly susceptible” of being interpreted by the jury as a comment on Russman’s failure to testify, without merit. Russman did not testify at his trial. The prosecutor said in closing argument:

And the only person contradicting or conflicting with that [the victim’s, testimony, which identified Russman as the burglar] was defendant telling the police he was sleeping in the woods. Please use your common sense because the judge is going to instruct you on conflict of evidence. You can decide who to believe or who not to believe and what evidence supports the defendant’s testimony.

In the context of this trial, the prosecutor was responding to the defense attorney’s argument that the police had apprehended the wrong man, that Russman had told them he was homeless and living in the dense woods in which he was found, and that he was not the burglar. Although Russman did not testify, a police detective did testify as to what Russman said after he was apprehended. The prosecutor’s reference to the defendant’s testimony was not confusing because Russ-man’s statements given to the police were in evidence and defense used those statements to argue he was innocent, and merely poor and unlucky. See State v. Dix, 723 So.2d 351 (Fla. 5th DCA 1998); Dorman v. State, 638 So.2d 589 (Fla. 3d DCA 1994).

However, we agree with Russman, and the state concedes, that condition 12 of the probation order must be struck. At the sentencing hearing, the trial judge did not orally pronounce this condition and it is not included in the list of standard probation conditions in section 948.03(l)(a)-(m). See Justice v. State, 674 So.2d 123 (Fla.1996); Rothery v. State, 757 So.2d 1256 (Fla. 5th DCA 2000).

AFFIRMED. REMANDED to Strike Condition 12 of Probation Order.

MONACO and TORPY, JJ., concur.

      . §§ 810.02(2), 790.221(1), 812.014(2)(c)5„ 843.02, Fla. Stat.

      . Russman’s probation order contains the following condition:
      12. The Court retains jurisdiction to place you in the Probation and Restitution Center upon recommendation of your Probation Officer without finding of violation of probation.


author: THOMPSON, J.

text:
    C.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1709.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.

      James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

C.S., a minor, appeals an order adjudicating him delinquent. We affirm.

C.S. contends that the trial court erred in denying his motion for judgment of acquittal to the charge of retaliating against a witness in violation of section 914.23, Florida Statutes. A trial court must not grant a motion for judgment of acquittal unless there is no view of the evidence which a jury might consider to be favorable to the state that can be sustained under law. Holland v. State, 773 So.2d 1065 (Fla.2000). Section 914.23, Florida Statutes, provides in part:

A person who knowingly engages in any conduct that causes bodily injury to another person or damages the tangible property of another person, or threatens to do so, with the intent to retaliate against any person for:
(1) The attendance of a witness or party at an official proceeding, or for any testimony given or any record, document, or other object produced by a witness in an official proceeding; or
(2) Any information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding given by a person to a law enforcement officer.

In the instant case, the victim was C.S.’s probation officer. She testified that when she informed C.S. that she was holding him in violation of his community control for being suspended from school, C.S began cursing, moving around the room, punching his fist in his palm, calling the victim names, and telling the victim that if she came to his house, he would set his dog loose on her. The victim testified that C.S. continued to try to intimidate her. The victim testified that she feared his threats because C.S. had previously been violent with other authority figures. The victim stated that C.S.’s actions made her believe that he would hurt her that day or the next day. Another witness testified that, at one point, he had to step between C.S. and the victim because C.S. stormed towards the victim. We conclude there was sufficient evidence for the trial court to deny the motion for judgment of acquittal. Next, C.S. argues that the evidence does not support an adjudication of delinquency under section 914.23(1), Florida Statutes, which was cited in the information. Although C.S. was charged with violating subsection (1) instead of subsection (2), apparently in error, C.S. was charged with every element of the crime, and he had sufficient notice of the acts for which he was being tried. See McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002) (holding that the overriding concern regarding a defective information is whether the defendant had sufficient notice of the crimes for which he was tried, and the determinative questions are whether the information charged every element of the offense and whether it misled the defendant).

Order adjudicating C.S. delinquent is AFFIRMED.

PETERSON and MONACO, JJ„ concur.


author: HAWKES, J.

text:
    SYNCROLIFT ROLLS ROYCE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D03-0268.
    District Court of Appeal of Florida, First District.
    March 26, 2004.
    Jose I. Leon, Miami; Ford & Harrison LLP, Miami, for Appellant.
    Therese Pine, Tallahassee, for Appellee.
   HAWKES, J.

Appellant, Syncrolift Rolls Royce, appeals the final order of the Unemployment Appeals Commission (UAC), which rejected the findings of fact of the Appeals Referee, after concluding the findings were based on hearsay alone. We reverse and remand.

The record indicates that, when completing the new hire paperwork, Syncrolift learned the claimant used two different social security numbers, and had provided an illegible social security card. Syncrolift gave the claimant an opportunity to provide a legible card, but when the card arrived, it contained a third social security number. Following the claimant’s inability, over a four-month period, to adequately explain her use of three social security numbers, Syncrolift discharged the claimant, and she requested unemployment compensation.

At the unemployment compensation hearing, the claimant testified she mistakenly provided Syncrolift with three social security numbers. Syncrolift presented hearsay evidence in the form of counsel’s testimony, and various documents, including drivers’ licence records and other documents filled out by the claimant, which indicated the claimant had been knowingly using at least two of these numbers for several years.

Following the hearing, the Referee found the claimant presented Syncrolift with inaccurate social security numbers on several occasions over a four month period. The Referee further found the claimant’s actions in presenting multiple social security numbers violated a standard of behavior Syncrolift had a right to expect, and demonstrated an intentional substantial disregard of her duties and obligations to Syncrolift. The Referee concluded the claimant was terminated for misconduct in connection with work and disqualified her from receiving unemployment compensation benefits.

The claimant appealed this decision to the. UAC. The UAC found the Referee’s findings, if not supported solely by hearsay, would have been sufficient to find the claimant was terminated for misconduct in connection with work. However, the UAC, concluding the Referee reached his decision by relying exclusively upon hearsay, reversed the Referee’s order.

It is well-established that in unemployment compensation appeals, hearsay is admissible only for the purpose of explaining or supplementing other evidence, and that, standing alone, it is insufficient to prove a material fact. See Tassone v. Unemployment Appeals Comm’n, 662 So.2d 1003 (Fla. 1st DCA 1995); Yost v. Unemployment Appeals Comm’n, 848 So.2d 1235 (Fla. 2d DCA 2003). However, in this case, the claimant’s own testimony provided competent, substantial evidence that she provided Syncrolift with different social security numbers. Although she claimed to have done so by mistake, the Referee, as the fact finder, was free to find her testimony on this point lacked credibility, and reject her explanation as to why she used these numbers. The hearsay evidence offered by Syncrolift supplemented or explained the evidence offered by the claimant, and provided a different explanation for her use of the numbers. Because the Referee’s findings are based on competent, substantial evidence, they must be accepted by the UAC. See Ford v. S.E. Atl. Corp., 588 So.2d 1039 (Fla. 1st DCA 1991).

The UAC’s order is REVERSED and the case REMANDED for reinstatement of the Referee’s order.

DAVIS and VAN NORTWICK, JJ., concur.


author: TORPY, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Evaristo SOTO, Jr., Appellee/Cross-Appellant.
    No. 5D03-2970.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    Luis F. Gomez, Sr., Orlando, for Appel-lee/Cross-Appellant.
   TORPY, J.

The State challenges an order dismissing the second count of an information which charged Appellee with battery on a person 65 years of age or older. By cross-appeal, Appellee challenges that portion of the order that denies his Motion to Dismiss as it relates to Count 1 of the information.

Initially, the State charged Appellee with battery on his 82-year-old father. Appellee filed a Motion to Dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), to which the State did not traverse. Based on the lack of a traverse, the lower court dismissed the information. Thereafter, the State filed a new information. Count 2 of the new information was essentially the same charge that had been previously dismissed. When Appellee filed a Motion to Dismiss directed at the new information, the State filed a legally sufficient traverse. The trial court granted the motion as to Count 2, apparently believing that the prior order of dismissal was res judicata. It was not. Because the State had not previously filed a traverse, the earlier dismissal did not preclude the State from re-filing the same charge and avoiding a dismissal by filing a legally sufficient traverse. State v. Gellis, 375 So.2d 885 (Fla. 3d DCA 1979).

Appellee’s cross-appeal challenges the denial of the Motion to Dismiss Count 1. We find Appellee’s challenge as to Count 1 to be without merit, and that portion of the court’s order is affirmed.

The order dismissing Count 2 of the information is reversed and this cause is remanded for further proceedings consistent herewith.

REVERSED in part; AFFIRMED in part and REMANDED

THOMPSON and MONACO, JJ., concur.


text:
    Paul SINKFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0516.
    District Court of Appeal of Florida, First District.
    March 30, 2004.
    Paul Sinkfield, Petitioner, pro se.

      Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

ALLEN, WEBSTER and BENTON, JJ., concur.


text:
    Alfred J. SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0576.
    District Court of Appeal of Florida, First District.
    March 30, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 18, 2004, the Court has determined that the notice of appeal was not timely filed. Thus, the Court lacks jurisdiction to review the order on appeal. Accordingly, the appeal is hereby dismissed.

DISMISSED.

ALLEN, WEBSTER and BENTON, JJ., concur.


text:
    Brandon R. BERTHEL, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3349.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2004.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Wilson v. State, 845 So.2d 142 (Fla.2003); Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003).

THOMPSON, PLEUS and ORFINGER, JJ., concur.


text:
    Robert J. KELSO, Appellant, v. Miriam D. KELSO, Appellee.
    No. 5D03-2023.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2004.
    Robert J. Kelso, Cocoa Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983).

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


text:
    Kenneth SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3085.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Harris v. State, 810 So.2d 1093 (Fla. 5th DCA 2002).

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


text:
    Christine VELLA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3086.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2004.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Kenneth GRIMSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4049.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2004.
    Kenneth Grimsley, Lowell, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ross v. State, 325 So.2d 430 (Fla. 4th DCA 1976).

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


text:
    Jeffrey Byron HARDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-714.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2004.
    Jeffrey Byron Hardy, Perry, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504 (Fla.2003).

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


text:
    Gobi STEVENSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-813.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2004.
    Cobi Stevenson, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 702 So.2d 1346 (Fla. 5th DCA 1997).

SAWAYA, C.J., SHARP, W., and TORPY, JJ., concur.


text:
    Michael DURRANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2702.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Michael Durrant, in proper person.
    Charles J. Crist, Jr., Attorney General and Steven R. Berger, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and GREEN, JJ.
   PER CURIAM.

Appellant Michael Durrant appeals the denial, as untimely, of his Motion for Post-Conviction Relief under Florida Rule of Criminal Procedure 3.850. Durrant claims that his motion was timely filed and as proof submits a certificate of service date-stamped September 16, 2002 by the prison library. The State, however, contends this stamp does not prove that the document was received by prison officials “for mailing.”

The face of the record is unclear as to whether Durrant’s motion was timely. Thus, we remand for an evidentiary hearing to determine whether the motion was delivered to prison officials, for mailing, in a timely fashion. See Fla. R.App. P. 9.420(a)(2); Thompson v. State, 761 So.2d 324, 326 (Fla.2000) (holding certificate of service showing inmate timely delivered legal document to prison officials for mailing shifts burden of proof to State).

Remanded with instructions.

      . Florida Rules of Appellate Procedure state: A document filed by a pro se inmate confined in an institution is timely filed if the inmate places the document in the hands of an institution official for mailing on or before the last day for filing. Such a document shall be presumed to be timely filed if it contains a certificate of service certifying that the inmate placed the document in the hands of an institution official for mailing on a particular date, and if the document would have been timely filed had it been received and file-stamped by the court on that date.
      Fla. R.App. P. 9.420(a)(2) (emphasis added).


author: SCHWARTZ, Chief Judge.

text:
    Reynard Antoine GASKIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-206.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Fredericka Sands, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge.
   SCHWARTZ, Chief Judge.

As he was being brought from the adjacent jail to court on a pending felony charge against him, Gaskin broke loose from the correction officers and ran out of the Metro Justice Building. With several officers chasing him, he broke into a business located a few blocks from the courthouse. He pushed his way inside and locked himself in. He was soon followed by the officers who, after a brief scuffle, reapprehended him. As a result of these events, Gaskin was convicted of several offenses (including escape), which he does not challenge, and burglary, which he does.

In the sole issue presented on appeal, he contends that the trial court committed fundamental error (there was no objection below) in instructing the jury that it could find him guilty of burglary, in accordance with the information, by “entering or remaining in [the business] ... [with] a fully formed conscious intent to commit the offense of escape and/or resisting arrest without violence [therein].” He argues that a possible basis of the burglary conviction, guilt of the crime of breaking and entering with intent to commit the crime of escape simply does not exist on these facts. We agree. Because the general verdict of guilty of burglary makes it impossible to determine that it was not based on that ground, see Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Garcia, 992 F.2d 409 (2d Cir.1993); Lyons v. State, 791 So.2d 36 (Fla. 2d DCA 2001), review denied, 831 So.2d 673 (Fla.2002); Mosely v. State, 682 So.2d 605 (Fla. 1st DCA 1996); Torna v. State, 742 So.2d 366 (Fla. 3d DCA 1999), see also Cardenas v. State, 867 So.2d 384 (Fla.2004), we therefore reverse the burglary conviction and sentence.

Under the law of Florida, it is clear that the crime of escape was (a) completed when Gaskin first broke away from the officers and (b) did not continue thereafter. See § 944.40, Fla. Stat. (1997); Watford v. State, 353 So.2d 1263, 1265 (Fla. 1st DCA 1978)(“when the State has established its right to legal custody and the conscious and intentional act of defendant of leaving the established area of such custody, the offence of escape is prima facie established”). Accord Maynard v. State, 652 P.2d 489, 492 (Alaska Ct.App. 1982)(“The offense of escape is complete when a person once in lawful custody, voluntarily removes himself from that custody without lawful authority.”); People v. George, 109 Cal.App.3d 814, 819, 167 Cal. Rptr. 603, 605 (1980)(“The crime [of escape] is completed when the prisoner wil-fully leaves the prison camp, without authorization.”); State v. Davis, 14 Nev. 439 (1880)(instruction that person confined by sheriff in jail who escapes or departs therefrom without authority is guilty of escape approved “because the doing of those acts completed the crime”); State v. Fore, 185 Or.App. 712, 718, 62 P.3d 400, 404 (2003)(“escape is completed when a defendant sets out on a course of action that results, even momentarily, in the defendant no longer being in custody”); Fitzgerald v. State, 782 S.W.2d 876, 881 (Tex.Crim.App.l990)(“flight is not an essential element of the offense of escape because the offense itself is complete when an unauthorized departure from custody is made”); see State ex. rel Farrior v. Faulk, 102 Fla. 886, 136 So. 601, 603 (1931)(“when once the prisoner has succeeded in getting beyond the custody of and out of sight of the custodian, the escape is complete”); Ayendes v. State, 385 So.2d 698, 699 (Fla. 1st DCA 1980)(the offense of escape is “completed upon an inmate’s intentional act of leaving the established area of custody”), pet. for review denied, 392 So.2d 1371 (Fla.1980). Contra United States v. Bai ley, 444 U.S. 394,100 S.Ct. 624, 62 L.Ed.2d 575 (1980)(federal crime of escape is continuing offense).

It follows as a matter of legal logic that the defendant could not have after-wards “intended” to commit an “escape” withm the allegedly burglarized building. In essence, then, the charged offense was legally impossible to commit. On indistinguishable facts, the Court of Criminal Appeals of Texas has reached just this conclusion:

The Court of Appeals further concluded that since the offense of escape was complete before appellant entered the apartment, he could not as a matter of law, have “intended” to commit the offense of escape when he entered the apartment. They reasoned that appellant “may have entered the apartment with the intent to resist or evade arrest, ... but the evidence is conclusive that he did not commit the offense of burglary with intent to commit felony escape, because he had already completed the offense of escape.” The State argues that the defense of impossibility does not apply to the intended offense in a burglary. They reason that the gist of the offense is intent and so long as intent is present at the time of the entry, the offense is complete regardless of whether the intended offense could have been executed.
In concluding that impossibility does not apply to the intended offense of burglary, the State fails to distinguish between legal and factual impossibility.
* * *
Legal impossibility has been described as existing where the act if completed would not be a crime, although what the actor intends to - accomplish would be a crime.
One commentator has explained the distinction between legal impossibility and factual impossibility:
(1) unless the intended end is a legally proscribed harm, causing it is not criminal, hence any conduct falling short of that is not a criminal attempt (i.e. the principle of legality); and (2) if the intended end is a legally proscribed harm, the failure to effect it because of the lack of a factual condition necessary to its occurrence, is not defense (i.e. factual impossibility).
JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 586 (2nd ed.1960). Whatever it is that the actor intends to do is simply not a crime, although he may believe it is.[FN6]
FN6. The following hypothetical is also illustrative:
Lady Eldon intends to purchase French lace and smuggle it back into England without paying the customs duty.... The customs officer at Dover brings it to light. He then says to Lady Eldon: “Lucky for you you returned to England today rather than yesterday. I just received word this morning that the government has removed French lace from the duty list.”
PAUL H. ROBINSON, 1 CRIMINAL LAW DEFENSES § 85(d), at 432 (1984).
In concluding that “as a matter of law, [appellant] could not have “intended” to commit the offense of escape when he entered the apartment”, the Court of Appeals applied the principle of legal impossibility. Having done everything appellant intended to do, the resulting end would still not be a crime, or at least the crime charged (burglary per unlawful entry into a habitation with intent to commit felony escape) because appellant had already left custody at the time he entered the apartment. Therefore, whatever it was appellant intended to do at the point of entering the apartment was simply not felony escape since he had already escaped previously.
One commentator explained why the case of Wilson discussed in footnote 6 herein, represented a legal impossibility:
In Wilson the defendant may have thought he was committing a crime, but if he did it was not because he intended to do something that the criminal law prohibited but rather because he was ignorant of the material alteration requirement of the crime of forgery.
WAYNE R. LAFAVE, AUSTIN W. SCOTT, 2 SUBSTANTIVE CRIMINAL LAW § 6.3, at 45 (1986). Likewise, here appellant may have thought he was committing escape, “but if he did it was not because he intended to do something that the criminal law prohibited but rather because he was ignorant of the” departure from custody requirement of the crime of escape. Accordingly, the Court of Appeals did not err in concluding that it was legally impossible for appellant to have intended to commit the underlying offense of felony escape.

Lawhorn v. State, 898 S.W.2d 886, 890-92 (Tex.Crim.App.1995) (citations omitted).

The validity of this .holding is demonstrated by comparing it to State v. Wallace, 56 Conn.App. 730, 745 A.2d 216 (2000), cert. denied, 253 Conn. 901, 753 A.2d 939 (2000), which also dealt with a virtually identical situation but which upheld a burglary conviction. The distinction between Wallace, on the one hand, and Lawhorn, 898 S.W.2d at 886, and this case on the other, is that Wallace was charged with burglary of the structure in which he was attempting to elude apprehension with “intent to commit the offense of interfering with an officer ” which, under Connecticut law, is

a crime, which, depending on the facts of the case, may be a continuing offense or may be an offense that is completed on the happening of one event. The actions of the defendant in this case lead to a conclusion that the evasion of the police was a continuing offense rather than numerous, separate offenses. This does not preclude, however, the continuous offense of interfering as being the predicate offense for numerous, separate burglary charges. The defendant’s entering into a residence was a continuation of the offense of interfering with an officer that began when the defendant first ran from the police. While the intent to interfere may not be separately punishable each time the defendant unlawfully entered the residences, it does not alter the fact that when the defendant entered the residence, he was doing so with the intent to commit the crime of interfering with an officer, [e.s.]

Wallace, 56 Conn.App. at 736, 745 A.2d at 219; cf. also Bailey, 444 U.S. at 394, 100 S.Ct. 624. In this case, because the crime of escape was, as a matter of law, completed before he entered the building, the result must be otherwise. See generally W.R. LaFave, 3 Substantive Criminal Law § 21.1(e)(2d Ed.2003).

Accordingly; while the convictions below are otherwise affirmed,-the one for burglary is reversed and the cause is remanded for resentencing and for other proceedings consistent herewith.

Affirmed in part, reversed in part and remanded.

      . Our holding makes it unnecessary to consider the possibility that the other alternative basis for the burglary verdict, b. and e. "with [the] intent to commit the offense of ... resisting arrest without violence ” is also legally inadequate in the light of the rule that a burglary is complete “the moment the defendant enters or remains within the [structure] with the requisite intent.” State v. Stephens, 601 So.2d 1195, 1196 (Fla.1992). It is difficult to comprehend-that Gaskin entered the building with the intent to later resist an arrest which he clearly wanted only to avoid entirely.

      . Indeed, the escape charge of which Gaskin was convicted in this very case was that he had escaped from the "holding cell ... or detention area in the Miami-Dade Criminal Court.”

      . The state's reliance on Griffin v. State, 639 So.2d 966 (Fla.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995), and Parker v. State, 570 So.2d 1048 (Fla. 1st DCA 1990), which deal with the issue of the scope of the felony murder doctrine, is misplaced. See also Ayendes, 385 So.2d at 699 (holding that confinement of victim during flight from custody "facilitate[d]” escape within meaning of kidnaping statute).


author: SHAHOOD, J.

text:
    George MANNARINO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3921.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

The central issue in this appeal is whether the trial court erred in denying appellant’s motion for mistrial due to an improper comment by the prosecutor on appellant’s right to remain silent. We reverse on that issue and remand for a new trial. As a result, we decline to address the other issue raised by appellant.

George Mannarino, appellant in this case, was charged with uttering a forgery and petit theft, and tried by jury. The evidence showed that appellant and his girlfriend, Michelle Bereda (Bereda), entered a Denny’s restaurant at approximately 5:00 a.m. on Christmas morning 1999. A waitress observed appellant exhibiting strange behavior, particularly, holding a stack of credit cards and shuffling them like playing cards. The couple then began arguing, and walked out of the restaurant leaving two credit card receipts for their food.

An officer was called to Denny’s regarding a possible domestic disturbance. He started to question appellant to determine whether there had been a domestic battery, but appellant attempted to run out. Appellant was handcuffed and various credit cards were found on his person. He told the officer they belonged to Bereda. The officer noticed that it was not Bere-da’s name on the cards, and questioned her. Bereda told the officer that appellant had stolen a purse and the credit cards.

At trial, Bereda changed her story. She testified on behalf of the defense, stating that it was she who had stolen a purse and credit cards from a chair in the bar' where she and appellant had been that night. She had not told appellant about the purse. Bereda testified that she and appellant had taken several Valium and consumed several alcoholic drinks that night. When they arrived at Denny’s, she told him to get a credit card from her purse and he must have inadvertently gotten one from the purse she had stolen. She did not realize this had happened until appellant was being arrested and the officer pointed out that the name on the card did not match Bereda’s driver’s license. Bereda stated that she told the officers that appellant stole the purse and cards because she was mad at him. She ultimately pled guilty to stealing the purse and credit cards and uttering a forgery.

During closing argument, the prosecutor made the following comment:

The judge will instruct you the mere fact that the defendant had that card on him, the mere fact that he had it in his possession, presumption of guilt, and he stole those items, unless he can explain them away. And Ms. Bereda’s explanation does not explain that away.

(Emphasis added). Appellant objected that that was an improper comment on his right to remain silent and moved for a mistrial. The trial court reserved ruling on the motion stating that it was necessary to have the statement read back to him.

The jury found appellant guilty as charged. After the jury returned its verdict and was dismissed, the court asked the clerk to play back the pertinent portion of the State’s closing argument. The court denied the mistrial, stating:

I’m going to deny the motion for a mistrial, although I will say that I think that the choice was probably an ill advised choice of words, that is using he specifically, you would arguably be referring specifically to the defendant.
But taken in the entire context of the argument, specifically in regard to the theft instruction, which is a proper instruction on the law, which does indicate that, that it does give rise to that, stolen property does give rise to an inference of possession unless satisfactorily explained, and it was not the focal point of the closing argument. In fact, the State indicated that I believe the other witness, said she did not properly explain it away.
I don’t think that it’s reasonable for a jury to conclude that that would be an improper comment upon the defendant’s right to remain silent. And if it was error, it appears to me it would in any event be a harmless error.

Appellant argues that the prosecutor’s closing argument comment that appellant had to “explain away” the fact that he had stolen credit cards in his possession was an inappropriate comment on his right to remain silent. We agree.

Improper prosecutorial comments give rise to error justifying mistrial when they are “so prejudicial that [they] vitiate the entire trial.” Taylor v. State, 640 So .2d 1127 (Fla. 1st DCA 1994) (citing King v. State, 623 So.2d 486 (Fla.1993)). In determining whether reversal is warranted for an improper remark made by a prosecutor during the closing argument, the court must determine whether the effect of the comment was to prejudice the jury and impair the fairness of the proceeding. Taylor, 640 So.2d at 1135; see also State v. Murray, 443 So.2d 955, 956 (Fla.1984) (prosecutorial error alone does not warrant reversal unless trial error was “so prejudicial as to vitiate the entire trial”). Comments on a defendant’s right to remain silent are subject to a harmless error analysis. See State v. Marshall, 476 So.2d 150 (Fla.1985); see also State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The test to determine what constitutes a comment on the defendant’s right to remain silent is whether the comment is fairly susceptible of being interpreted by the jury as referring to [the] defendant’s failure to testify. David v. State, 369 So.2d 943 (Fla.1979).

In Phillips v. State, 591 So.2d 987 (Fla. 1st DCA 1991), a case upon which appellant relies, the prosecutor made a similar comment in an attempt to address the defendant’s failure to offer a reasonable explanation as to how he came to be in possession of stolen property. Id. at 990. The State argued that the comment merely gave effect to the standard jury instruction, which states that “[p]roof of possession of recently stolen property, unless satisfactorily explained, gives[s] rise to an inference that the person in possession of the property knew or should have known that the property was stolen.” Fla. Std. Jury Instr. (Crim.) Theft.

Rejecting the State’s argument, the First District in Phillips held that the comment was fairly susceptible of being interpreted as a comment on the defendant’s right to remain silent. Id. Significantly, the court stated:

Although the state relies on the supreme court’s decision in State v. Young, [217 So.2d 567 (Fla.1968)] it omits the statement in Young that there is no mandatory duty to explain possession of the goods and that it is up to the accused to do so. 217 So.2d at 570. Also, as observed by the United States Supreme Court in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973):
It is true that the practical effect of instructing the jury on the inferences arising from unexplained possession of recently stolen property is to shift the burden of going forward with evidence to the defendant. If the Government proves possession and nothing more, this evidence remains unexplained unless the defendant introduces evidence, since ordinarily the Government’s evidence will not provide an explanation of his possession consistent with innocence.
At 846, n. 11, 93 S.Ct. at 2363 n. 11, 37 L.Ed.2d at 387, n. 11 (emphasis [in original] ). Thus, the state is not required as a predicate for obtaining the instruction to put on affirmative evidence that the accused did not explain his possession at the time of his arrest. Clearly, from our opinion herein, the state may not do so without impermissibly commenting on the defendant’s right to remain silent.

Phillips, 591 So.2d at 990 (emphasis added); see also Dean v. State, 690 So.2d 720, 724 (Fla. 4th DCA 1997) (comment on defendant’s failure to explain why he had been traveling under an assumed name was fairly susceptible to interpretation on his right to remain silent and not harmless where defendant was the only person who could have testified about that issue).

In this case, the prosecutor argued at trial that there was nothing inappropriate about her comment because it mirrored the standard jury instruction. First, we find that her comment did not mirror the jury instruction because she added the word “he,” which obviously refers to appellant and suggests that he was required to, but did not, explain his possession of the stolen credit cards. Second, even if her comment were a correct statement of the law as it is given in the standard jury instruction, in the context in which the comment was made, it was an inappropriate comment on appellant’s right to remain silent. The error was not harmless because appellant was the only person besides Bereda who could have explained why he had the credit cards. Although Bereda explained at trial that she had stolen the purse and cards and appellant had no knowledge of that fact, her testimony was impeached by her prior statement to the officer that it was appellant who stole the purse. On these facts, the prosecutor’s comment could not have been harmless.

We accordingly reverse and remand for a new trial.

REVERSED AND REMANDED FOR NEW TRIAL.

FARMER, C.J., and GUNTHER, J„ concur.


text:
    Ethel MAXSON, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D02-2446.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.

      Peter M. Feaman of Adorno & Yoss, P.A., Boca Raton, for appellant.
    Ralph J. McMurphy, Wildwood, for ap-pellee.
   SHAHOOD, J.

This is an appeal of an order denying appellant Medicaid benefits based on a finding that she has assets valued beyond the maximum established by law. The issue is whether the assets in appellant’s irrevocable trust are to be considered appellant’s assets for purposes of determining her eligibility for Medicaid benefits.

The Department of Children and Families (DCF) denied appellant’s request for benefits. That decision was affirmed by a hearing officer who concluded that because the assets of the trust are available to appellant, the trust meets the definition of a Medicaid Qualifying Trust (MQT), and the $105,858.72 in assets should be included in determining appellant’s eligibility. The conclusion was based on a finding that the following language in the trust document allowed the trustee, in her “uncontrolled discretion,” to lend money to the estate of the Grantor:

10. Transactions with Grantor’s Estate. The Trustee shall have the power to purchase property of any kind from the estate of the Grantor at the prices and upon the terms as the Trustee may in her sole discretion determine, and the power to lend money to such estate upon the terms and security as may seem to the Trustee advisable in her uncontrolled discretion, without liability for any loss resulting from any such purchase or loan.

The Medicaid program was established by 42 U.S.C. § 1396 as a cooperative program between federal and state governments to provide health care to the needy. Pursuant to the law, participating states must establish plans which conform to the requirements of the federal statute. See 42 U.S.C. § 1396. Florida’s Medicaid plan is enunciated in Title 65 of the Florida Administrative Code, Rule 65A-1.701.

Under the plan, a claimant is eligible for benefits if the total value of his assets does not exceed the maximum allowed in the statute. People who own greater assets have long used irrevocable trusts in order to shelter or divert those assets in order to qualify for Medicaid benefits without first depleting their life savings. See generally Thompson v. Dep’t of Children & Families, 835 So.2d 357, 359-60 (Fla. 5th DCA 2003) (“The practice of ‘Medicaid Estate Planning’, whereby ‘individuals shelter or divest their assets to qualify for Medicaid without first depleting their life savings,’ is a legal practice that involves utilization of the complex rules of Medicaid eligibility, arguably comparable to the way one uses the Internal Revenue Code to his or her advantage in preparing taxes.”). As a result, the Medicaid statutes were revamped to discourage asset shuffling or the disposition of assets for less than market value. Id.

In considering a claimant’s assets held in trust, Congress has defined a “Medicaid Qualifying Trust,” whether revocable or irrevocable, as:

[A] trust, or similar legal device, established (other than by will) by an individual (or an individual’s spouse) under which the individual may be the beneficiary of all or part of the payments from the trust and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.

42 U.S.C. § 1396a(k)(2) (Law.Co-op.Supp. 1988). If a trust is an MQT, the agency must determine whether any or all of the assets of a trust are available to the grant- or. 42 U.S.C. § 1396a(k)(l) (Law.Co-op. Supp.1988). “The maximum amount of payments permitted under the terms of the trust to be distributed to the grantor, assuming the full exercise of discretion by the trustee, is deemed to be available to the grantor and may be considered in assessing medicaid eligibility.” Hatcher v. Dep’t of Health & Rehabilitative Servs., 545 So.2d 400, 401-02 (Fla. 1st DCA 1989) (citing 42 U.S.C.S. § 1396a(k)(l) (Law.Coop.Supp.1988) (stating that the issue of whether trust principal is available to the grantor depends upon the amount of discretion vested in the trustee)).

In this case, the hearing officer determined that the corpus of the trust was available to appellant, thus disqualifying her from Medicaid benefits, because paragraph ten of the trust authorizes the trustee, in her sole discretion, to loan money to “the grantor’s estate.” Appellant contends that the word “estate” as used in the trust document applies to her property only at the time of her death. DCF and the hearing officer, on the other hand, interpret “estate” more broadly, taking it to mean all of the property appellant currently owns. See generally Barry v. Barry, 511 So.2d 649 (Fla. 4th DCA 1987) (in context of dissolution, “estate” used to refer to wife’s real and personal property).

The broader interpretation proposed by DCF is illogical in this context. See generally Daniel v. Fla. State Turnpike Auth., 213 So.2d 585 (Fla.1968) (holding that an agency’s interpretation of a statute or question of law over which the agency has responsibility is entitled to great weight and will control unless it is clearly erroneous). Terms such as “marital estate” and “bankrupt’s estate” are widely accepted descriptive terms, not readily analogous with “decedent’s estate.”

“A reviewing court will defer to an agency’s interpretation of an operable statute as long as the agency’s interpretation is consistent with legislative intent and supported by competent substantial evidence.” Williams v. Dep’t of Mgmt. Servs., Div. of Retirement, 678 So.2d 1282, 1283 (Fla.1996) (citation omitted). DCF is the agency charged with making Medicaid eligibility determinations. See § 409.902, Fla. Stat. (2002). In this case, the hearing officer’s and DCF’s interpretation of the trust document is inconsistent with the Medicaid laws and Congress’ intention in establishing them. Consequently, we reverse the final judgment denying appellant Medicaid benefits. We cannot say, based on the trust instrument in this case, that any of the trust corpus here is available to the grantor. See Pollak v. Dep’t of Health & Rehabilitative Servs., 579 So.2d 786 (Fla. 4th DCA1991).

REVERSED AND REMANDED.

STONE and HAZOURI, JJ., concur.

      . This section was repealed and Medicaid Qualifying Trusts are now addressed in 42 U.S.C. § 1396p(d) (1993). The amended law states that trusts created before August 10, 1993 are to be analyzed for purposes of Medicaid eligibility as they were before the amendment. See Ramey v. Rizzuto, 72 F.Supp.2d 1202, 1212 (D.Colo.1999). The trust in this case was created on February 1993; therefore, the prior law applies.


text:
    Catherine BLACKWOOD, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, STATE OF FLORIDA, Appellee.
    No. 4D02-4399.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Rehearing Denied April 30, 2004.
    Steven L. Sommers, Fort Lauderdale, for appellant.
    Gregory J. Philo, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for appellee.
   PER CURIAM.

Catherine Blackwood appeals the Florida Agency for Health Care Administration’s final order denying her request for an administrative hearing regarding the agency’s notice of intent to deny her license to operate an assisted-living facility.

On May 17, 2002, the Florida Agency for Health Care Administration (“AHCA”) sent Blackwood a notice of intent to deny indicating that: “St. Catherine T.L.C., Inc.’s assisted living facility (ALF) license renewal application is DENIED.”

As the basis for the denial, AHCA specified: “Pursuant to section 400.414(l)(f), Florida Statutes ... you do not meet the level 2 background screening requirements under section 435.04(4)(a), F.S., as evidenced by your being listed as a confirmed perpetrator of abuse, neglect or exploitation in Department of Children and Family Services, Final Order Case No. 98-3320C ... dated August 20,1999.”

Blackwood requested a formal administrative hearing and later filed an amended request in response to an order to show cause issued by AHCA.

AHCA entered a final order denying Blackwood’s request for hearing on October 22, 2002. As amended, the order stated that Blackwood received the notice of intent to deny on May 22, 2002 and AHCA received the request for hearing on June 17, 2002. It further stated that Black-wood’s response to AHCA’s order to show cause did not cure the noted defects. Because it found that Blackwood’s request for hearing was untimely filed and that she failed to cure the defects in her request for a hearing, AHCA denied a formal hearing.

AHCA was required to deny a hearing because the request was legally insufficient.

Section 120.569(2)(c), Florida Statutes (2001) provides that: “[u]nless otherwise provided by law, a petition or request for hearing shall include those items required by the uniform rules adopted pursuant to s. 120.54(5)(b)4.” AHCA stated in its notice of intent to deny that “[Blackwood’s] request for an administrative hearing must conform to the requirements in [rule] 28-106.201, Florida Administrative Code (F.A.C.), and must state the material facts [she] dispute[s].”

As AHCA noted, Blackwood’s amended request for a hearing failed to provide a “concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action.” Fla. Admin. Code R. 28-106.201(2)(e); see also Brookwood Extended Care Ctr. of Homestead, LLP v. Agency for Healthcare Admin., 870 So.2d 834 (Fla. 3d DCA Aug.13, 2003). In neither her original request for a hearing, nor her amended request, did Blackwood address the specific statement in the notice of intent to deny, which stated that she was a confirmed perpetrator of abuse, neglect, or exploitation. AHCA properly denied Blackwood’s request for a hearing. See § 120.569(2)(c) (“A petition shall be dismissed if it is not in substantial compliance with these requirements or [if] it has been untimely filed.”) (emphasis added). Because we find that the denial was proper on this ground, we do not address the timeliness issue.

AFFIRMED.

GUNTHER and GROSS, JJ., concur.

FARMER, C.J., concurs in result only.


text:
    Roberto S. RODRIGUEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D03-2571.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.

      Roberto S. Rodriguez, in proper person.
    John D. Maher (Tallahassee), for appel-lee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Roberto S. Rodriguez appeals from a final order of the Unemployment Appeals Commission confirming the dismissal of his internal appeal as untimely. However, in the “aviso de apelación” Rodriguez states: “Yo nunca recibi la notificación por coreo.” (“I am appealing because I never received the notice in the mail.”) The Commission’s document entitled “Dismissal of appeal due to lack of jurisdiction” contains the appeal referee’s findings of fact as to untimeliness. It does not include a finding as to Rodriguez’ contention of non-receipt of the notice. Under this circumstance, a remand to the agency to hold a hearing to determine the issue of receipt is required. See Holmes v. City of West Palm Beach, 627 So.2d 52 (Fla. 4th DCA 1993).

The order appealed is therefore reversed and the cause is remanded for the required hearing.

      . to the appeals referee

      . of the initial determination that Rodriguez was not entitled to unemployment benefits