text:
    Michael Thomas WEAVER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D02-364, 3D00-1019, 3D02-356.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Michael Thomas Weaver, in proper person.
    Robert A. Butterworth, Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   COPE, J.

This is an appeal after adjudication and sentencing for the offenses of second degree murder and armed robbery, and an appeal from a denial of postconviction relief. We remand for a hearing on the voluntariness of the plea.

I.

Michael Thomas Weaver was indicted for first degree murder, armed robbery, and unlawful possession of a firearm while engaged in a criminal offense. In September 1999, the State and the defense entered into a plea agreement whereby defendant-appellant Weaver would plead guilty to a reduced charge of second degree murder and armed robbery. The length of the sentence would be left up to the trial judge. In the September plea colloquy, the trial court accepted the plea, ordered a presentence investigation, and scheduled a sentencing hearing for December 1999.

Prior to the sentencing hearing, the defendant filed a pro se motion to withdraw his plea. He asserted that he accepted the plea offer based on counsel’s advice that he would still be allowed to withdraw the plea at any time prior to sentencing.

At the start of the December sentencing proceeding, the defendant addressed the court and argued his pro se motion to withdraw his plea. The State responded that the defendant’s claims were conclusively refuted by the plea colloquy itself. Defense counsel was offered the opportunity to comment about the defendant’s allegations of misadvice but he declined to do so.

The trial court denied the motion to withdraw the plea. The defendant then said he felt his appointed counsel had lied to him about his ability to withdraw his plea, and stated that he did not want to be represented by the attorney any longer. The court advised the defendant that he was free to discharge his counsel, but would thereafter have to represent himself. After a Faretta inquiry, the defendant decided to discharge counsel and represented himself at sentencing.

The trial court imposed consecutive life sentences, and the defendant has appealed.

Although this court appointed counsel to assist the defendant with this appeal, the defendant requested leave of this court to proceed pro se for this appeal and this court granted the defendant’s request.

II.

The defendant’s main claim on appeal is that his plea was involuntary. The plea bargain in this case called for a plea to reduced charges, with the length of sentence to be left up to the trial court. The plea was accepted in September, a presen-tence investigation was ordered, and sentencing was scheduled for December 1999.

After the September plea colloquy, the defendant filed a pro se motion to withdraw plea, claiming that his defense counsel had assured him he could withdraw his plea as a matter of right at any time before sentence was imposed in December. At the start of the sentencing proceeding, the defendant argued his pro se motion. Although trial counsel was given an opportunity to respond to the defendant’s claim, trial counsel elected to say nothing. In our view, the defendant is entitled to an evidentiary hearing on the claim. Accordingly, we remand for that purpose.

The State argued that the plea colloquy conclusively refuted the defendant’s claim. We agree with the State that the judge’s plea colloquy was thorough, fair, and appropriate. However, the colloquy did leave open the possibility that under certain circumstances the plea could be withdrawn. We are not convinced that the colloquy conclusively refutes the defendant’s claim, and accordingly remand for an evidentiary hearing on the issue of vol-untariness.

If the trial court concludes that the plea was involuntary, then the defendant will be entitled to withdraw his plea and the State may reinstate the original charges. If, however, the court rejects the claim of involuntariness, then the judgment and sentences will stand as originally imposed.

By postconviction motion the defendant also claims that his sentences should not exceed the sentencing guidelines. That claim is conclusively refuted by the record.

The bargain in this case was for a plea to the reduced charge of second degree murder (in place of the original charge of first degree murder) plus the charge of armed robbery. Under the agreement, the sentence could be anything from the minimum up to the maximum penalty being sought by the State, which was consecutive life sentences. Counsel for both sides as well as the defendant acknowledged that this was the agreement. Under the terms of the plea bargain, the sentencing guidelines were inapplicable.

Reversed and remanded for further proceedings consistent herewith.

      . The crime date was October 31, 1994.

      .We reject defendant’s claim that the trial court never accepted the plea during the September colloquy. Clearly the court did, for it concluded the colloquy with a finding of guilt on the charges to which the defendant pled.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Counsel should be appointed for the hearing.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    Nathaniel BRAZILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3244.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

On the last day of the 1999-2000 school year, thirteen-year-old Nathaniel Brazill shot and killed a teacher at his middle school, Barry Grunow.

The state charged Brazill with first degree murder and aggravated assault with a firearm. The jury convicted him of second degree murder and aggravated assault with a firearm. The trial judge sentenced him to concurrent sentences: a mandatory minimum sentence of twenty-eight years in prison on the murder charge and five years in prison, with a three year mandatory minimum, on the assault charge.

We affirm in all respects.

The evidence at trial

In the early afternoon of May 26, 2000, Brazill and Michelle Cordovaz were suspended for the remainder of the day as the result of a water balloon fight. School counselor Kevin Hinds escorted the two students off campus. Brazill asked Hinds what time he was going home. Hinds indicated that he was leaving around 4:15 to 4:30 p.m. and asked why Brazill wanted to know. Brazill shrugged and did not respond.

As he was walking away with Cordovaz, Brazill told her that he had a gun and was going to return to shoot Hinds. Cordovaz asked: “You wouldn’t do that, Nate, would you?” Brazill answered: “Watch. I’m going to be all over the news.”

On the way home, Brazill made several stops. Near his grandmother’s house, Brazill spoke to Brandon Spann. He asked if Spann was part of a gang or had a gun. Spann asked him why he needed a gun. Brazill replied that he was “going to fuck up the school” because of the suspension.

At his home, Brazill retrieved a gun from his bedroom. The previous weekend, Brazill was at his grandfather’s house and found the gun in a cookie jar in his grandfather’s bureau. At that time, he loaded the gun, pulled the slide back, engaged the safety, and placed it in his overnight bag. When Brazill left his grandfather’s house, he took the gun home with him; upon returning home he hid the gun in his room.

Taking the gun from his bedroom, Bra-zill rode his bike back to school. On the way, he stopped by his aunt’s house and left a note.

Brazill entered the school grounds near the rear parking lot, a designated teachers’ area. School security officer Matt Baxter saw him. Baxter followed him, but found only an abandoned bike. After leaving his bike, Brazill ran to the school building. On the way, he advised a student sitting outside to go home.

Once inside the school, Brazill went directly to Barry Grunow’s classroom to speak with two friends, Dinora Rosales and Vonae Ware. He had once dated Ware for a time, and was romantically interested in Rosales. Earlier in the day, Brazill gave Rosales two cards and a bouquet of flowers.

When Brazill knocked on Grunow’s door, the students in the class were already standing, because they were about to go outside. Brazill sternly asked to speak to Rosales and Ware, who were standing on either side of Grunow. The teacher did not allow the girls to leave the classroom, but said that Brazill could come inside. Brazill refused to enter the classroom. Three more times . he asked to see the girls. Each time Grunow calmly declined and told him to go back to class.

Brazill then pulled out the gun and aimed it at Grunow’s head. He was in the hallway, approximately an arm’s length from Grunow. He backed up slightly and assumed a shooter’s stance with his legs apart.

Grunow told Brazill to stop pointing the gun, but he continued to point the gun at the teacher’s head. Brazill appeared to be angry but calm; he was not crying or shaking. Brazill pulled the slide back on the gun.

As Grunow attempted to close the classroom door, Brazill pulled the trigger and Grunow fell to the floor, with a gunshot wound between the eyes. A school surveillance videotape of the hallway revealed that Brazill had pointed the gun at Grunow for nine seconds before shooting. Brazill exclaimed: “Oh shit,” and fled.

On the way out, Brazill used both hands to aim the gun at math teacher, John James, who was conducting class next door to Grunow. As Brazill aimed the gun, he told James not to bother him, that he was going to shoot. James immediately turned around and led his students back into his classroom.

Brazill ran out of the building. To one teacher, Brazill did not appear to be visibly upset. He was not sweating. He was not crying. Near the school, Officer Michael Mahoney observed Brazill walk into the street, put his hands on his head, and kneel. When the officer asked what he was doing, Brazill stated that he had shot someone at school and the gun was in his pocket. Brazill was then arrested. He acknowledged that he had shot Grunow. Brazill was taken to the police station, where he gave a videotaped statement.

A firearms expert with the FBI testified that the gun used in the shooting had a safety that functioned normally. The gun had a trigger pull that required five and one-half pounds of pressure to fire. It would not discharge unless the trigger was pulled.

Section 985.225, Florida Statutes (1999) is not unconstitutional

Brazill argues that section 985.225, Florida Statutes (1999), is unconstitutional as a violation of due process, equal protection, and separation of powers. In pertinent part, section 985.225 provides:

(1) A child of any age who is charged with a violation of state law punishable by death or by life imprisonment is subject to the jurisdiction of the court as set forth in s. 985.219(7) unless and until an indictment on the charge is returned by the grand jury. When such indictment is returned, the petition for delinquency, if any, must be dismissed and the child must be tried and handled in every respect as an adult:
(a) On the offense punishable by death or by life imprisonment; and
(b) On all other felonies or misdemeanors charged in the indictment which are based on the same act or transaction as the offense punishable by death or by life imprisonment or on one or more acts or transactions connected with the offense punishable by death or by life imprisonment.
(3) If the child is found to have committed the offense punishable by death or by life imprisonment, the child shall be sentenced as an adult. If the juvenile is not found to have committed the indictable offense but is found to have committed a lesser included offense or any other offense for which he or she was indicted as a part of the criminal episode, the court may sentence pursuant to s. 985.233.

§ 985.225 (emphasis added).

The constitutionality of a statute is reviewed de novo. See City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002); Lowe v. Broward County, 766 So.2d 1199, 1203 (Fla. 4th DCA 2000); Dickerson v. State, 783 So.2d 1144, 1146 (Fla. 5th DCA 2001). There is a strong presumption that a statute is constitutionally valid. See McGrath, 824 So.2d at 146; In re Estate of Caldwell, 247 So.2d 1, 3 (Fla.1971); Dickerson, 783 So.2d at 1146. “It is well established that where reasonably possible and consistent with constitutional rights, a statute will be interpreted by the courts in a manner that resolves all doubt in favor of its validity.” DuFresne v. State, 826 So.2d 272, 274 (Fla.2002); see also State v. Mitro, 700 So.2d 643, 645 (Fla.1997); McKibben v. Mallory, 293 So.2d 48, 51 (Fla.1974).

Brazill first contends that his due process rights were violated because he was denied the “rehabilitative aspect of juvenile court” solely because the state decided to procure an indictment.

However, there is no absolute right conferred by common law, constitution, or otherwise, requiring children to be treated in a special system for juvenile offenders. See In re Gault, 387 U.S. 1, 16, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); State v. Cain, 381 So.2d 1361, 1363 (Fla.1980); Johnson v. State, 314 So.2d 573, 576 (Fla.1975) (noting that it was within legislative authority pursuant to Article I, Section 15(b) of the Florida Constitution, to create an exception where children would be treated as adults).

Under Article I, Section 15(b), a “child,” as defined by “law,” may be charged “with a violation of law as an act of delinquency instead of [a] crime.” Art. I, § 15(b), Fla. Const. As the supreme court has explained, this provision means that “a child has the right to be treated as a juvenile delinquent only to the extent provided by our legislature.” Cain, 381 So.2d at 1363. The legislature has the power to determine who, if anyone, is entitled to treatment as a juvenile. Id.; see also Woodard v. Wainwright, 556 F.2d 781, 785 (5th Cir.1977) (finding that “treatment as a juvenile is not an inherent right but one granted by the state legislature, therefore the legislature may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved”).

Because section 985.225 implicates no fundamental constitutional right, the applicable test for reviewing a substantive due process challenge to the statute is the rational-basis standard of review. See Shapiro v. State, 696 So.2d 1321, 1326-27 (Fla. 4th DCA 1997). Under this standard, a presumption of constitutionality attaches to a statute; the burden is on the party challenging the statute to establish that the statutory proscription lacks a rational relationship to a legitimate governmental interest. See Chicago Title Ins. Co. v. Butler, 770 So.2d 1210, 1214-15 (Fla.2000) (challenging party must prove that the statute in question is discriminatory, arbitrary, or oppressive for there to be a violation of due process under the rational-basis standard); Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040, 1050 (Fla. 4th DCA 2003); State v. Sobieck, 701 So.2d 96, 103 (Fla. 5th DCA 1997).

Section 985.225 is related to the state’s interest in crime deterrence and public safety. The statute provides treatment as an adult for those offenses serious enough to be punishable by life imprisonment or death. Such crimes are the most violent or dangerous offenses against persons. It is not unreasonable for the legislature to treat children who commit serious crimes as adults in order to protect societal goals. Accord State v. Perique, 439 So.2d 1060, 1064 (La.1983). The legislature could reasonably have determined that for some crimes the rehabilitative aspect of juvenile court must give way to punishment. As the fifth circuit wrote when considering the predecessor statute to section 985.225:

Doubtless the Florida legislature considered carefully the rise in the number of crimes committed by juveniles as well as the growing recidivist rate among this group. The legislature was entitled to conclude that the parens patriae function of the juvenile system would not work for certain juveniles, or that society demanded greater protection from these offenders than that provided by that system.

Woodard, 556 F.2d at 785 (footnotes omitted).

Raising a procedural due process argument, Brazill cites Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) to support his argument that a hearing is required before adult sanctions may be imposed upon a child. He attacks section 985.225 because it allows the state to bypass a hearing on the suitability of adult sanctions by securing an indictment.

However, Kent involved a hearing to determine the treatment of a child in compliance with the statute there under review. See 383 U.S. at 552-54, 86 S.Ct. 1045. Section 985.225 does not require a court to hold a hearing to decide whether adult sanctions are appropriate. In Cain, the supreme court discussed Kent and found that: “Whatever its constitutional ramifications, we do not believe they extend to the statutory provision under consideration here where discretion to prosecute a juvenile as an adult is vested in the prosecutor rather than in a judge.” Cain, 381 So.2d at 1365 (footnote omitted). Bra-zill was afforded the same procedural rights as anyone else charged with first degree murder by indictment. Due process does not require anything more because of his status as a child.

Brazill next argues that section 985.225 violates equal protection and the separation of powers. His attack focuses on the prosecutor’s discretion in seeking an indictment under section 985.225(1); where the prosecutor does not obtain one, then a prosecution may proceed in juvenile court. Brazill complains that because the statute contains no criteria “to steer prose-cutorial discretion,” arbitrariness is injected into the decision-making process. Bra-zill also argues that the statute disparately treats children thirteen years of age or younger, because the only method of prosecuting them in adult court is through an indictment. He asserts that section 985.225(3) requires adult treatment of a child convicted of certain felonies, while a child charged by information might still be eligible for juvenile sanctions.

These attacks must fail because of the broad discretion accorded a prosecutor under our legal system. See State v. Vixamar, 687 So.2d 300, 303 (Fla. 4th DCA 1997). As the supreme court has written, “the discretion of a prosecutor in deciding whether and how to prosecute is absolute in our system of criminal justice.” Cain, 381 So.2d at 1367; see also Manduley v. Superior Court, 27 Cal.4th 537, 117 Cal.Rptr.2d 168, 41 P.3d 3, 19 (2002). In Cain, the supreme court rejected a similar constitutional attack to the one Brazill makes here.

Section 985.225(1) applies to “[a] child of any age who is charged with a violation of state law punishable by death or by life imprisonment....” (Emphasis added). It does not differentiate between age groups. The statute equally applies to any child who commits an offense punishable by death or by life imprisonment. Additionally, a child transferred to the criminal court becomes similarly situated with defendants in that court, rather than those still in the juvenile system. See, e.g., State v. Mitchell, 577 N.W.2d 481, 492-93 (Minn.1998).

Children thirteen and under may be prosecuted in adult court only by indictment; the involuntary waiver provisions of section 985.226(2), Florida Statutes (1999) do not apply. This limitation on children thirteen and under is not properly viewed as a suspect classification scheme; rather, as the state points out, the statutory “requirement of an indictment is for the protection of the accused juvenile,” because the grand jurors must concur in the prosecutor’s charging decision. When the grand jury does not return an indictment, a juvenile thirteen and under is not subject to section 985.226(2).

The prosecutor’s closing argument did not rise to the level of fundamental error

Brazill argues that the prosecutor’s closing argument deprived him of a fair trial. He identifies over twenty comments in the argument as improper. Bra-zill concedes that he objected to only one comment, which was sustained. However he argues that the other arguments were so bad that they elevated the one preserved error into reversible error. He makes the related argument that, taken as a whole, the prosecutor’s argument amounted to fundamental error.

The general rule is “that failing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review.” Brooks v. State, 762 So.2d 879, 898 (Fla.2000). As the supreme court has often observed

[t]he sole exception to this general rule is where the unobjected-to comments rise to the level of fundamental error. In order for an error to be fundamental and justify reversal in the absence of a timely objection, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.”

Spencer v. State, 842 So.2d 52, 74 (Fla.2003) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)) (citations omitted); see also Conahan v. State, 844 So.2d 629, 640 (Fla.2003); Brooks, 762 So.2d at 898-99 (quoting McDonald v. State, 743 So.2d 501, 505 (Fla.1999)); Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998); Bonifay v. State, 680 So.2d 413, 418 n. 9 (Fla.1996).

Brazill correctly points out that we should view the objected-to comment “in conjunction with the unobjected-to comments.” Brooks, 762 So.2d at 899. This court has held that multiple improprieties in a prosecutor’s closing argument may reach “the critical mass of fundamental error” which destroys “the defendant’s most important right under our system, the right to the ‘essential fairness of [his] criminal trial.’ ” Cochran v. State, 711 So.2d 1159, 1163 (Fla. 4th DCA 1998) (quoting Knight v. State, 672 So.2d 590, 591 (Fla. 4th DCA 1996) (quoting Peterson v. State, 376 So.2d 1230, 1234 (Fla. 4th DCA 1979))); see McKenzie v. State, 830 So.2d 234, 238 (Fla. 4th DCA 2002).

The adversary system requires objections at the trial level to preserve issues for appellate review. See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1016-17 (Fla.2000). The requirement of an objection at trial avoids “the creation of ‘gotehas’ whereby the defense is allowed to sit on its rights, saying nothing until after it sees whether the jury returns an adverse verdict.” Jones v. State, 571 So.2d 1374, 1376 n. 3 (Fla. 1st DCA 1990).

As a departure from the requirements of the adversary system, the “critical mass” approach to fundamental error in closing argument recognizes a prosecutor’s duty “to preserve intact all the great sanctions and traditions of the law.” Washington v. State, 86 Fla. 533, 98 So. 605, 609 (1923). A grave breach of that duty “seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Murphy, 766 So.2d at 1030 (quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099, 1104 (1997)).

We have carefully reviewed the prosecutor’s closing argument in light of the record in this case and hold that the argument did not reach the critical mass of fundamental error. The argument was not replete with those types of errors that have amounted to fundamental error in earlier cases. There was no appeal to “racial, ethnic, or religious prejudices.” Id. There were no personal attacks on defense counsel or the defendant. Cf. Barnes v. State, 743 So.2d 1105, 1106-07 (Fla. 4th DCA 1999); Cochran, 711 So.2d at 1162-63; Knight, 672 So.2d at 591. The prosecutor did not express his “personal belief as to the witness’s credibility and the defendant’s guilt.” Cochran, 711 So.2d at 1163. The prosecutor did not argue facts outside the evidence. Cf. McKenzie, 830 So.2d at 238; Cochran, 711 So.2d at 1163; Knight, 672 So.2d at 591. The prosecutor made no comment on the defendant’s right to remain silent. Cf. Knight, 672 So.2d at 591. The prosecutor did not improperly shift the burden of proof to the defendant. Cf. Jackson v. State, 832 So.2d 773, 777 (Fla. 4th DCA 2002).

The most serious prosecutorial lapse in this case were comments designed to evoke sympathy for the victim. However, without more, such comments cannot amount to fundamental error. Unlike errors which cannot be cured by an instruction from the court, appeals to sympathy are easily correctable by a timely objection. A standard jury instruction warned the jurors about not basing their decision on sympathy. The remaining arguments under scrutiny were either not error or errors so minor that they could not have impacted the verdict. For example, the prosecutor argued that he had “spent hours with” the murder weapon and he was unable to “wipe the safety off.” The gun was in evidence; the jurors had the chance to manipulate it themselves, and there had been much expert testimony directed to this issue. What the prosecutor said was not pivotal.

In this case, it cannot be said that “a verdict of guilty could not have been obtained without the assistance of the [prosecutor’s closing argument].” Brooks, 762 So.2d at 899. In fact, there would likely have been a guilty verdict had the prosecutor made no closing argument at all. The case turned on its facts, not on the oratorical performance of the attorneys. There was abundant evidence to support a conviction of first degree murder. Defense counsel’s strategy during closing was apparently to maintain a low profile and skillfully create sympathy for both the victim and his young client. The strategy met with success. The jury rejected the first degree murder charge for the lesser included offense.

The sentence imposed was lawful

We briefly address several points pertaining to sentencing. The twenty-eight year mandatory minimum sentence was lawful. The jury’s verdict was sufficient to support the mandatory minimum sentence. An enhanced sentence is proper when it is based on a jury verdict that specifically refers to the use of a firearm, either as a separate finding or by including a reference to a firearm when identifying the specific crime. See Tucker v. State, 726 So.2d 768, 772 (Fla.1999); State v. Hargrove, 694 So.2d 729, 730-31 (Fla.1997); State v. Tripp, 642 So.2d 728, 730 (Fla.1994).

Section 775.087(2)(a)3. provides that if

during the course of the commission of the felony such person discharged a “firearm” ... and, as a result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

§ 775.087(2)(a)3., Fla. Stat. (1999) (emphasis added). The indictment in this case charged the crime of first degree murder and alleged that Brazill “did use and have in his possession a handgun, a firearm as defined in Florida Statute 790.001(6).”

The verdict form stated that Brazill was:

Guilty of Second Degree Murder with a Firearm, a lesser included offense, as contained in the Indictment.
We find the Defendant possessed, carried and fired a firearm in committing Second Degree Murder.
X Yes _No

This finding by the jury supported the trial court’s sentence. See Amos v. State, 833 So.2d 841 (Fla. 4th DCA 2002). The “discharge of a firearm” was “inherent in the jury’s verdict” that Brazill carried and fired a firearm in committing second degree murder. Id. at 842.

Brazill next challenges the imposition of a minimum mandatory sentence of twenty-eight years for his conviction of second degree murder. He contends that the express language of section 775.087(2) does not permit the trial court to designate the entire sentence as a mandatory minimum, but only the first twenty-five years.

Second degree murder is a felony in the first degree that carries a potential maximum sentence of life imprisonment. See §§ 782.04(2), 775.082(3)(b), Fla. Stat. (1999). Brazill’s conviction under the enhancement statute, section 775.087(2)(a)3., subjected him to the sentencing provisions of that section, which provide that the “convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” § 775.087(2)(a)3.

A plain reading of section 775.087(2)(a)3. indicates that the minimum term that may be imposed ranges from twenty-five years to life imprisonment. The precise length of the mandatory minimum is a discretionary sentencing decision of the trial court. Brazill’s twenty-eight year sentence falls within the permitted range. Grammatically, the language following “not less” and “not more” pertains to the “minimum term of imprisonment.” To read the sentence as Brazill argues would turn the statute into nonsense. Someone cannot be sentenced to a term of incarceration greater than life; death ends incarceration. Thus, the phrase “not more than a term of imprisonment of life in prison” refers to the greatest mandatory minimum sentence, not to the maximum sentence that might be imposed.

AFFIRMED.

KLEIN and TAYLOR, JJ., concur.

      . A crime scene investigator testified that pulling the slide back on this gun put a bullet in the chamber. If a bullet was already in the chamber when the slide was pulled, then a live round would eject. At the crime scene, the investigator found a live cartridge, along with a discharged shell casing.

      . The jurisdiction of the court shall attach to the child and the case when the summons is served upon the child and a parent or legal or actual custodian or guardian of the child, or when the child is taken into custody with or without service of summons and before or after the filing of a petition, whichever first occurs, and thereafter the court may control the child and the case in accordance with this part.
      § 985.219(7), Fla. Stat. (1999).

      . Section 39.02(5)(c), Florida Statutes (1975).

      . Other jurisdictions have ruled similarly on this issue. See, e.g., Andrews v. Willrich, 200 Ariz. 533, 29 P.3d 880, 886 (Ariz.Ct.App.2001) (finding that no liberty interest is deprived of when a prosecutor has the discretion to charge a juvenile as an adult); State v. Angel C., 245 Conn. 93, 715 A.2d 652, 661 (1998) (finding that if a statute vests a juvenile with juvenile status, then that right cannot be taken away without notice and a hearing, but if the statute does not create a liberty interest, the same treatment is not warranted); People v. Conat, 238 Mich.App. 134, 605 N.W.2d 49, 61 (1999) (reasoning that a change in statute eliminating the need for a hearing to determine whether to sentence juveniles as adults did not violate due process because the legislature never indicated that a hearing was required).


author: KAHN, J.

text:
    James BRYANT, Appellant, v. HOME DEPOT and Sedgewick Claims Management, Appellees.
    No. 1D02-1231.
    District Court of Appeal of Florida, First District.
    May 15, 2003.
    Jeffrey S. Breslow of Druckman, Bres-low & Fee, P.A., Miami, for Appellant.
    Kimberly A. Hill, Conroy, Simberg, Ga-non, Krevans & Abel, P.A., for Appellees.
   KAHN, J.

In this workers’ compensation case, appellant James Bryant challenges a ruling of the judge of compensation claims (JCC) excluding the deposition testimony of an unauthorized treating physician, and the order of the JCC denying compensation. Specifically, Bryant raises three points: (1) the JCC erred in excluding the deposition testimony of Dr. Bollo under Clairson International v. Rose, 718 So.2d 210 (Fla. 1st DCA 1998); (2) the JCC erred in failing to find that the major contributing cause of his Achilles tendinitis was work-related; and (3) the JCC erred in denying all benefits in light of an improper denial of compensability. We affirm the second and third issues without further discussion. On the first issue, we likewise affirm for the reasons stated below.

Bryant worked for Home Depot, the Employer/Carrier (E/C), from December 1996 through June 1, 1998. On April 19, 2000, Bryant filed a petition for benefits claiming that repetitive trauma to his left foot caused bilateral Achilles tendinitis. Bryant chose his then-current treating physician, Dr. Jimmerson, as his independent medical examiner (IME). Bryant also fisted Dr. Bollo, an unauthorized treating podiatrist, as a witness. Dr. Bollo treated Bryant from May 18, 1998, through July 1999. On October 29, 2001, the E/C scheduled and took the deposition of Dr. Bollo for discovery purposes. At the final hearing, on January 15, 2002, Bryant attempted to introduce the deposition testimony of Dr. Bollo, over objection, arguing the E/C waived their objection by failing to object at the deposition or when Dr. Bollo was fisted as a witness. The JCC excluded Dr. Bollo’s testimony pursuant to section 440.13(5)(e), Florida Statutes, because he was not an appointed medical advisor, designated IME, or authorized treating physician, and the deposition was taken for discovery purposes.

In Clairson, this court held that an E/C who failed to object to the competence of an unauthorized treating physician during the deposition could not later challenge the admissibility of the deposition on grounds that the physician was not an appointed medical advisor, designated IME, or authorized treating physician. See 718 So.2d at 213-14; see also § 440.13(5)(e), Fla. Stat. (2002). We emphasized that, had the objection been made during the deposition, it would have given the claimant, who at time of deposition had not designated an IME, an opportunity to designate the unauthorized treating physician as his IME, thus obviating the grounds for objection. See Clairson, 718 So.2d at 214; see also Fla. R. Civ. P. 1.330(d)(3).

In Shea v. Durty Two Inc., 738 So.2d 510 (Fla. 1st DCA 1999), we again reversed where an E/C failed to object either before or at the claimant’s deposition of an unauthorized treating physician. In Shea, as in Clairson, the claimant had not designated an IME prior to the deposition later objected to by the E/C. The concern expressed in both opinions is that the party taking the deposition be afforded an opportunity to cure a deficiency, as by designating the witness as an IME. As noted, Bryant had already selected Dr. Jimmer-son as his IME and had no basis upon which to designate another. Moreover, the burden of objecting to a deposition, on grounds that a physician is unauthorized, is not on the party taking the deposition for discovery purposes when that party has no intention of proffering the deposition as opinion testimony.

Here, the E/C took Dr. Bollo’s deposition to learn more about Bryant’s condition. We see no reason why the E/C would, or could, object to a discovery deposition it had scheduled. A party who schedules a deposition for discovery purposes has no reason to object to that deposition on grounds of physician competence. The rationale behind our decision in Clair-son does not apply to the facts of this case.

AFFIRMED.

ERVIN and PADOVANO, JJ., concur.


author: WOLF, J.

text:
    Angela J. WESTERN, Appellant, v. Isaac F. WESTERN, Appellee.
    No. 1D02-2949.
    District Court of Appeal of Florida, First District.
    May 15, 2003.
    R. John Westberry, of Holt & Westber-ry, Pensacola, for appellant.
    Ross A. Keene, of Beroset & Keene, Pensacola, for appellee.
   WOLF, J.

All issues raised in direct appeal are affirmed. The cross appeal is dismissed as untimely.

BARFIELD and DAVIS, JJ., Concur.


author: PER CURIAM.

text:
    Hiawatha QUAINTANCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2974.
    District Court of Appeal of Florida, First District.
    May 15, 2003.
    Nancy A. Daniels, Public Defender and Gary D. Wimsett, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Kenneth D. Pratt, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse Appellant’s conviction and sentence for possession of cocaine and remand for a new trial. Appellant was tried for possession of cocaine on January 13, 2002. For any offense occurring prior to May 13, 2002, an essential element of the crime of possession of an illegal substance was knowledge of the illicit nature of the substance.

At trial, Appellant testified and denied possession of any drugs or knowledge that cocaine was present. This denial placed at issue all elements of the offense, including knowledge of the illicit nature of the substance. Failure to instruct the jury on the element of knowledge of the illicit nature of the substance in his possession was reversible error. See Goodman v. State, 839 So.2d 902 (Fla. 1st DCA 2003); Scott v. State, 808 So.2d 166 (Fla.2002); Chicone v. State, 684 So.2d 736 (Fla.1996).

REVERSED and REMANDED.

DAVIS, LEWIS, and HAWKES, JJ„ Concur.


author: THOMPSON, C.J.

text:
    Ronald DENYER, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2401.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, C.J.

Ronald Denyer appeals his sentence on the ground that the trial court erred by applying three habitual offender designations to him. We affirm.

After being found guilty by a jury of robbing a tavern with a weapon, Denyer decided that he wanted to enter a plea to the pending charges of a robbery of a convenience store and escape. At the plea hearing, the trial court adjudicated Denyer guilty in the convenience store case and designated him a three-time violent felony offender, a habitual violent felony offender (HVFO), and a prison releasee reoffen-der (PRR), as was agreed to in the plea agreement. Denyer was given a mandatory 30-year sentence for the convenience store robbery. Denyer was also sentenced to 30 years as a habitual offender for the escape conviction. The sentences for the tavern robbery, the convenience store robbery, and the escape were to run concurrent.

Subsequently, Denyer filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) and contended that under Oberst v. State, 796 So.2d 1263 (Fla. 4th DCA 2001), he could not be designated an HVFO and a three-time violent felony offender. Oberst held that section 775.084(4) “reflects a legislative intent to require the court to designate a defendant as either a [habitual felony offender] or a three-time violent felony offender or a [violent career criminal], but not any combination.” Id. at 1265. While the trial court removed the three-time violent felony offender designation for the tavern robbery of which Denyer was found guilty by a jury, it declined to remove one of the designations in connection with the convenience store case because the designations were the result of a negotiated plea, and both sides received the benefit of the bargain.

On appeal, Denyer contends that the trial court erred by allowing him to enter a plea agreement pursuant to which he was classified as a PRR, an HVFO, and a three-time violent felony offender. He contends that classification as an HVFO and a three-time violent felony offender violates the proscription against double jeopardy. Although Oberst held that designating a defendant a habitual felony offender and a three-time violent felony offender is not proper, Denyer waived any double jeopardy challenge by agreeing to the designations. See Lewis v. State, 827 So.2d 1052 (Fla. 5th DCA 2002)(citing Melvin v. State, 645 So.2d 448 (Fla.1994) and Novaton v. State, 634 So.2d 607 (Fla. 1994)). Indeed, Denyer stated that he had no objection to the designations. As a result of the plea bargain, Denyer received concurrent sentences for all charges. De-nyer cannot now contend that the sentence is a double jeopardy violation.

Further, Denyer received a minimum mandatory sentence that ran concurrent for both cases. There is no double jeopardy violation when the sentences are to run concurrent. See Iman v. State, 784 So.2d 1265 (Fla. 1st DCA 2001)(appellant who was sentenced under the habitual felony offender statute and the violent career criminal statute has shown no double jeopardy violation because he will serve only one sentence with a minimum mandatory term); compare Grant v. State, 770 So.2d 655 (Fla.2000)(concurrent 15-year sentence as a PRR and a habitual felony offender did not violate double jeopardy, but violated the prison releasee reoffender statute where an applicable longer concurrent term should have been imposed).

AFFIRMED.

PETERSON and SAWAYA, JJ„ concur.

      . § 775.084(l)(c)l„ Fla. Stat.

      . § 775.084(l)(b)l., Fla. Stat.

      .§ 775.082(9)(a)l„ Fla. Stat


author: MONACO, J.

text:
    Susan A. WENTWORTH, Appellant, v. Larry B. JOHNSON, Appellee.
    No. 5D02-2543.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.

      Denise A. Lyn, Lyn & Phipps, Inverness, for Appellant.
    Denise VanNess, VanNess & VanNess, P.A., Crystal River, for Appellee.
   MONACO, J.

In this action for dissolution of marriage the appellant, Susan A. Wentworth (“Wife”), appeals from an order dismissing her claim for attorney’s fees against her former husband, Larry B. Johnson (“Husband”), because she failed to file her motion seeking fees within the 30-day time limit set out in Rule 1.525, Fla. R. Civ. P. We affirm the ruling of the trial court, but do so without prejudice to the Wife to seek relief in accordance with Rule 1.090, Fla. R. Civ. P.

This rather protracted litigation was the subject of an Amended Final Judgment of Dissolution of Marriage rendered in 2000. At that time the trial court dissolved the marriage between the parties, but reserved ruling on certain distribution issues, and retained jurisdiction for the entry of “any further orders that may become necessary.” Shortly before rendition of this order, the Husband sought to have the Wife produce her attorney’s billing statements concerning the legal work performed on her behalf. The trial court denied the Husband’s motion to compel, but ordered that, “Neither party may proceed with a claim for attorney’s fees until they produce billing records.” It thereafter reserved jurisdiction on the issues associated with fees and costs.

For reasons not germane to this appeal, all issues relating to the marriage with the exception of the dissolution itself were retried, and a comprehensive final order resolving the claims of equitable distribution of assets and debts, valuation, and alimony was rendered in final form on January 24, 2002. The issues of entitlement and amount of attorneys’ fees and costs were not tried or resolved by the final order, however, as billing records had still not been exchanged. Instead, the order directed that a “hearing on the previously reserved issue of attorney’s fees and costs shall be set by the parties upon proper notice.” At this point neither party had actually filed a motion for fees and costs.

On March 26, 2002, 61 days after the entry of the final judgment, the Wife served the billing records of her attorney on the Husband, along with her motion for attorney’s fees. The Husband responded with a motion to dismiss the claim for attorney’s fees and costs (probably intending a motion to strike), asserting that the Wife had waived her right to seek such fees by failing to comply with the 30-day deadline contained in Rule 1.525.

At the hearing on the motion to dismiss the Wife argued two alternative positions. First, she posited that the time limit established by Rule 1.525 was automatically extended by the trial court’s reservation of jurisdiction with respect to attorney’s fees and costs. Next, she argued that Rule 1.090(b)(2), Fla. R. Civ. P., dealing with the discretion of a trial court to enlarge various procedural time periods, should control. The court disagreed with both positions and held that because Rule 1.525 establishes a mandatory time within which to file a motion for attorneys’ fees, it supersedes the discretionary provisions of Rule 1.090. The trial judge reached the conclusion, as a result, that he could not enlarge the time for serving the motion for fees under Rule 1.090, and dismissed the motion for attorney’s fees because he deemed it to be untimely. This appeal followed.

Rule 1.525, which became effective on January 1, 2001, reads as follows:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

Amendments to Florida Rules of Civil Procedure, 773 So.2d 1098 (Fla.2000). Rule 1.525 applies to proceedings involving dissolutions of marriage by virtue of Rule 12.020, Fla. Fam. L.R. P., which makes the Florida Rules of Civil Procedure applicable in all family law matters except where the Family Law Rules conflict.

The rule was designed to establish a bright fine to resolve any uncertainty concerning the timing of post-trial motions, and to bring them to a timely conclusion. See Diaz v. Bowen, 832 So.2d 200 (Fla. 2d DCA 2002); see also Green v. Sun Harbor, 730 So.2d 1261 (Fla.1998). A request for fees and costs contained within a complaint or answer simply puts one’s adversary on notice that a claim for fees and costs will be sought at the conclusion of the case. It is neither self-effectuating, nor sufficient in itself to comply with Rule 1.525. Diaz, 832 So.2d at 201. A separate motion must be filed in order to comply with this rule.

The Wife’s theory that the reservation of jurisdiction by the trial court to consider fees and costs worked an automatic extension of the time for serving a motion for them is not meritorious. She argues that the supreme court’s decision in Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla.1997), applies to the present case by analogy. Gulliver dealt with the statutory requirement of § 768.79(6), Florida Statutes, for the filing of a motion for fees and costs in offer of judgment cases within 30 days of the entry of judgment. The supreme court held there that because the timing of such a motion is a procedural matter, it is governed by the Florida Rules of Civil Procedure. Enlargement of the time for filing the motion is, therefore, regulated by Rule 1.090, and not the statute. Accordingly, a reservation of jurisdiction to entertain the motion is “proeedurally an enlargement of time under rule 1.090(b), which may allow a party to file late a motion for attorney fees.” Gulliver, 694 So.2d at 677.

The specific language in the final order relied on by the Wife makes questionable whether it is in fact a reservation of jurisdiction for fees and costs. Even if we assume that it is, however, she is still not entitled to an automatic extension. The subject matter of attorneys’ fees and costs was specifically dealt with in Rule 1.525, which was adopted by the supreme court after its Gulliver decision. Thus, the issue of whether the time limit is procedural is no longer on the table. The Wife had thirty days after the entry of the final order to serve her motion for fees and costs if she wished to be certain that her position would be considered on the merits by the trial court. She failed to meet that deadline. She may, however, still be able to salvage the consideration of her request for fees and costs as a result of Rule 1.090(b), Fla. R. Civ. P.

There is no question that the former wife served her motion for fees well beyond the 30-day limitation period, and that the trial court was correct in determining that her non-compliance worked a waiver of her right to seek fees and costs. We conclude that the trial court was not correct, however, in concluding that it had no authority to enlarge the time to serve the motion for fees and costs under Rule 1.090(b). We note in this respect that the trial court did not have the benefit of the opinion of this court in Carter v. Lake County, 840 So.2d 1153 (Fla. 5th DCA 2003), holding that the excusable neglect provisions of Rule 1.090(b) applies to the time limits of Rule 1.525, at the time it made its determination.

Rule 1.090(b) authorizes a trial court in its discretion to enlarge the time specified for the performance of acts required by the rules, order of court, or notice. Subsection (1) concerns a request for enlargement of time made before the expiration of the period originally prescribed or extended. Subsection (2), which concerns enlargements sought after the expiration of the applicable time, provides that a trial court:

[U]pon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.

The rule specifically lists the actions to which it does not apply and for which enlargements cannot be sought. An enlargement of time for the filing of a motion for fees and costs is not among the excluded time periods, and the Wife should have been allowed to demonstrate whether or not there was excusable neglect associated with the failure to request fees and costs in a timely manner. Because the trial court ruled that it could not enlarge the time for filing a motion for fees and costs under Rule 1.090, it has not had the opportunity to consider the merits of such a motion.

Accordingly, although we affirm the trial court’s order disallowing attorney’s fees and costs for failure to comply with Rule 1.525, we reverse that part of the order concluding that the trial court could not consider relief under Rule 1.090(b)(2), and remand with instructions to consider a motion for enlargement of time under that rule.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

SAWAYA, J. and LAMBERT, B., Associate Judge, concur.


text:
    Jon G. WEBER, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. 5D02-2451.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    Jon G. Weber, Leesburg, Pro se.
    No Appearance for Appellee.
   PER CURIAM.

On February 28, 2002, in circuit court case No. 01-32955, Appellant was convicted of the offense of felony driving under the influence. Pursuant to section 322.26(l)(a), Florida Statutes (1998 Supp.), the Department of Highway Safety and Motor Vehicles (DHSMV) is required to revoke the license or driving privilege of a person convicted of this offense. In Department of Highway Safety & Motor Veh icles v. Critchfield, 805 So.2d 1034 (Fla. 5th DCA 2002), however, this court declared that this law, enacted as part of section 8 of Chapter 98-223, Laws of Florida, was invalid because it was enacted in violation of the single subject rule of the Florida Constitution. The Florida Supreme Court recently affirmed this ruling. Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003).

In July of 2002, Appellant, acting pro-se and relying on this court’s Cñtchfield opinion, filed a “Complaint for Summary Judgment” in which he sought a declaration that the statute is in violation of the single subject rule and a further declaration that he “would not be legally barred from applying for a hardship license.” The complaint was filed within criminal circuit court case 01-32955. The trial court denied the ‘complaint’ noting that the revocation of the license was not a part of Appellant’s criminal sentence but, rather, an action that was to be performed by the DHSMV. The court further noted that unless and until the DHSMV takes action, there is no matter in controversy.

Appellant claimed in his motion seeking relief that, in fact, the DHSMV had revoked his license. We find, however, that regardless of whether a revocation has already taken place, Appellant’s motion for relief filed within his criminal court case was properly denied. Appellant’s remedy is properly with the agency that allegedly revoked his license, the DHSMV. If the DHSMV acts unlawfully in failing to rescind Appellant’s revocation or otherwise revokes Appellant’s license without lawful purpose, Appellant may avail himself of the appropriate remedy at that time. See Lickman v. State, 810 So.2d 1016 (Fla. 4th DCA 2002); Holveck v. State, 730 So.2d 407 (Fla. 5th DCA 1999); Fla. R.App. P. 9.030(c)(3).

ORDER DENYING RELIEF AFFIRMED.

SAWAYA, PLEUS and TORPY, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Antonio TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4463.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

Antonio Taylor appeals his judgments and sentences for carrying a concealed firearm and felon in possession of firearm. We reverse and remand for a new trial because the State was repeatedly permitted to introduce prejudicial hearsay evidence from the dispatch provided to the arresting officers. See Conley v. State, 620 So.2d 180 (Fla.1993).

On December 24, 1999, two Lee County deputy sheriffs were dispatched to Pop’s Grocery at approximately noon. They were told that a man in a white Ford pickup truck near the store was waving around a gun. The deputies arrived within five minutes. Inside a white Ford pickup truck, they observed one passenger, later identified as Mr. Taylor. They did not see a gun and initially did not observe Mr. Taylor acting suspiciously. They approached the vehicle, apparently for a citizen’s encounter, but Mr. Taylor’s furtive actions quickly transformed the event into a Terry stop. The deputies ordered Mr. Taylor out of the car. He did not comply, and they discovered that the truck’s passenger door was broken or jammed. The deputies removed Mr. Taylor through the passenger door window. He did not possess a gun. A search of the vehicle produced a .44 magnum revolver that was in the space between the passenger door and the seat. Thus, the revolver was found within reach of Mr. Taylor. The owner of the pickup was located in the store. He denied that the gun was his or that it had been in the pickup before Mr. Taylor entered the vehicle a short time prior to these events. Subsequent tests did not detect fingerprints on this gun.

At trial, it was conceded that Mr. Taylor was a felon. There was no serious dispute that the revolver was concealed and readily accessible to Mr. Taylor. The primary dispute concerned whether Mr. Taylor knew the gun was a few inches from his right hand or whether it was so well concealed that he had gotten into the pickup without realizing the gun was next to his seat. The State called both deputies as witnesses, plus a third deputy who had arrived on the scene. Over repeated objections, each deputy testified about the details of the dispatch that had been received. Thus, instead of hearing that the deputies went to the scene based on instructions from their dispatcher, the jury repeatedly heard about the report of a man waving a firearm, which one of the officers referred to as “detailed” and “reliable.” During closing argument, Mr. Taylor’s attorney argued that the State had not proven that Mr. Taylor knew about the gun in the pickup. In response, the State relied upon the objected-to hearsay evidence that Mr. Taylor had been waving the gun minutes before the police arrived.

On appeal, Mr. Taylor argues that he was entitled to a judgment of acquittal because the State failed to establish its case or, in the alternative, that a new trial is required based on the prosecutor’s inappropriate closing argument. We reject these arguments without further comment. Mr. Taylor also argues, however, that he is entitled to a new trial because the trial court improperly admitted the hearsay evidence contained in the dispatch. We agree.

Prior to the supreme court’s decision in Conley, 620 So.2d 180, there was some confusion concerning whether the entire content of a dispatch was admissible to explain why police officers arrived at a crime scene. Conley clearly established that the State may prove the fact of a dispatch to explain police actions, but normally it may not introduce the hearsay content of a dispatch, especially to prove the truthfulness contained within that content. Conley, 620 So.2d at 183. See Keen v. State, 775 So.2d 263 (Fla.2000); Wilding v. State, 674 So.2d 114 (Fla.1996); A.B.E. v. State, 818 So.2d 534 (Fla. 2d DCA 2002); Stribbling v. State, 778 So.2d 452 (Fla. 4th DCA 2001); Schaffer v. State, 769 So.2d 496 (Fla. 4th DCA 2000); Laws v. State, 696 So.2d 455 (Fla. 3d DCA 1997). The content of a dispatch is often relevant at a pretrial suppression hearing to help establish that an officer acted with reasonable suspicion or probable cause, but it typically plays no role in establishing the elements of the offense at trial.

The circumstances in Conley are extremely similar to those in this case. Especially when combined with the State’s use of the content of the dispatch in closing argument to suggest that the State had proven the truth of the assertion that Mr. Taylor had been brandishing the gun before the deputies arrived and, thus, was in actual possession of the weapon, we cannot conclude that this error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Reversed and remanded.

FULMER and COVINGTON, JJ., Concur.

      . § 790.01, Fla. Stat. (1999).

      . § 790.23, Fla. Stat. (1999).

        . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


text:
    STACY DAVID, INC., d/b/a Brandon Mitsubishi, a Florida corporation, Appellant, v. Jennifer CONSUEGRA and Francisco A. Consuegra, Appellees.
    No. 2D02-1243.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.

      Andrew F. Russo of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellant.
    Theresa I. Wigginton of Theresa I. Wig-ginton, P.A., Brandon, for Appellees.

      Cynthia S. Tunnicliff and Julius F. Parker, III, of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Ami-cus Curiae Florida Automobile Dealers Association.
   ALTENBERND, Chief Judge.

Stacy David, Inc., d/b/a Brandon Mitsubishi, appeals a nonfinal order denying a motion to compel arbitration of a consumer claim initiated by Jennifer and Francisco A. Consuegra. We conclude that the trial court was overly restrictive in applying the guidelines discussed in Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999), to exclude certain tort and statutory issues from arbitration. Accordingly, we reverse and remand to the trial court to submit these claims to arbitration.

On January 25, 2001, the Consuegras went shopping for a new car at Brandon Mitsubishi. They decided to purchase a new 2001 Mitsubishi Eclipse RT. To complete the purchase, the Consuegras signed several documents including a retail order for a motor vehicle and a retail installment contract. The retail order contained an arbitration clause, which was placed in a conspicuous box immediately above the signature lines. In all capital letters, it stated:

ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE BREACH THEREOF, SHALL ONLY BE SETTLED BY ARBITRATION IN HILLSBOROUGH COUNTY, FLORIDA IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND JUDGEMENT UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATION COST TO BE SPLIT EQUALLY BETWEEN BRANDON MITSUBISHI/HYUNDAI & CUSTOMER.

While driving home in the car, the Con-suegras noticed that the steering wheel was not aligned properly and that the headlights were off center. They immediately returned to Brandon Mitsubishi. For the first time, the sales representative informed them that the vehicle had sustained damage while being unloaded at the dealership. The Consuegras attempted to void the transaction. Brandon Mitsubishi refused to rescind the contract or accept return of the automobile. However, Brandon Mitsubishi did agree to do certain repairs on the vehicle. Brandon Mitsubishi also agreed to pay the Consuegras $800 and provide an additional feature worth $350. The Consuegras thereafter signed a disclosure that the car had been in an accident and repaired back to factory standards.

On August 24, 2001, the Consuegras filed a nine-count complaint against Brandon Mitsubishi. The complaint alleged negligent misrepresentation, several counts of intentional fraud, rescission, breach of express warranty, breach of implied warranty, violation of the Magnuson-Moss Act, and violation of the Florida Deceptive and Unfair Trade Practices Act. Brandon Mitsubishi responded to the complaint with a motion to compel arbitration. The trial court denied the motion to compel arbitration as to all counts on the ground that the tort claims were not subject to arbitration. Brandon Mitsubishi filed this appeal from the nonfinal order.

An order denying a motion to compel arbitration is generally reviewed de novo. See Hirshenson v. Spaccio, 800 So.2d 670 (Fla. 5th DCA 2001). In determining whether a dispute is subject to arbitration, courts consider at least three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Seifert, 750 So.2d at 636. In this case, only the second issue is disputed.

The arbitration clause in this case employs the phrase “any controversy or claim arising out of or relating to” a contract. It is well-established that such a broad form arbitration clause may require arbitration of tort issues including issues of fraud. See Micronair, Inc. v. City of Winter Haven, 800 So.2d 622 (Fla. 2d DCA 2001); Simpson v. Cohen, 812 So.2d 588 (Fla. 4th DCA 2002).

On appeal, the Consuegras argue that their causes of action do not arise from the contract. We disagree. Deciding whether a particular claim is covered by a broad arbitration provision requires a determination of whether a significant relationship exists between the claim and the agreement containing the arbitration clause, regardless of the legal label attached to the dispute. Seifert, 750 So.2d at 637-38. In Seifert, the supreme court attempted to draw a clearer line between personal injury claims that may be exempt from arbitration and the types of torts that may be arbitrated. Id. at 641. The supreme court explained that tort claims based on duties owed to the general public as a matter of common law or public policy may fall outside an arbitration clause, but that tort claims based on duties that are dependent upon the existence of the contractual relationship between the parties are normally arbitrable. Seifert, 750 So.2d at 640-41.

Prior to Seifert, case law existed that enforced arbitration clauses in the context of a purchase of a used automobile even when the plaintiff alleged fraud or deceptive trade practices. See Passerrello v. Robert L. Lipton, Inc., 690 So.2d 610 (Fla. 4th DCA 1997); Value Car Sales, Inc. v. Bouton, 608 So.2d 860 (Fla. 5th DCA 1992). Seifert did not overrule this case law. The fact that the automobile in this case is new is not a factor that should require different rules of arbitrability. In this type of consumer claim, the duties alleged under theories such as fraud in the inducement of a contract, fraud in the performance of a contract, or negligent misrepresentation are duties dependent upon the existence of a contractual relationship between the parties. Because the Con-suegras’ claims implicate the contractual agreement, the allegations are considered “arising out of or relating to” the agreement, thus subjecting the claims to arbitration.

After Seifert, the case law has required arbitration of claims under the Florida Deceptive and Unfair Trade Practices Act. Aztec Med. Servs., Inc. v. Burger, 792 So.2d 617, 618 (Fla. 4th DCA 2001). Likewise, the Eleventh Circuit has required arbitration of claims under the Magnuson-Moss Act. See Davis v. S. Energy Homes, Inc., 305 F.3d 1268 (11th Cir.2002). Thus, no count of the Consuegras’ complaint appears to fall outside the arbitration agreement.

On appeal, the Consuegras also argue that the arbitration clause is unenforceable because they unilaterally rescinded the contract or because Brandon Mitsubishi did not execute the retail order. We note that these theories were neither pleaded in their complaint nor otherwise raised in the record contained in the appendix. The Consuegras have not alleged a separate claim that the arbitration clause itself is invalid under the separability doctrine, and have affirmatively alleged a claim for breach of an express contractual warranty. Because the Consuegras failed to specifically attack the arbitration clause the claims are properly submitted to arbitration. See Ronbeck Constr. v. Savanna Club Corp., 592 So.2d 344 (Fla. 4th DCA 1992); Manning v. Interfuture Trading, Inc., 578 So.2d 842 (Fla. 4th DCA 1991); John B. Goodman L.P. v. THF Constr., Inc., 321 F.3d 1094 (11th Cir.2003). Cf. R.B.F. Mgmt. Co. v. Sunshine Towers Apartment Residences Ass’n, 352 So.2d 561, 562 (Fla. 2d DCA 1977) (holding that arbitration could not be compelled where plaintiff sought only rescission, and there was “no claim for damages in any of the five counts of the complaint”). This case is also distinguishable from Henderson v. Coral Springs Nissan, Inc., 757 So.2d 577 (Fla. 4th DCA 2000), in which the dealership sought to enforce an arbitration clause after it had rescinded the contract and repossessed the car.

The Consuegras point out that the retail order was not signed by Brandon Mitsubishi; however, the documents in the record reflect that Brandon Mitsubishi executed other documents associated with this sale. The retail order not only has fines for a business manager’s approval or a sales manager’s acceptance, but it also contains a blank provision stating: “This order is not valid unless signed and accepted by ____” Thus, it appears that this document may have become a valid contract enforceable against Brandon Mitsubishi once it arranged for the customer to sign the agreement. Given that the Consuegras admit that they executed the arbitration agreement, nothing in this record suggests they have any right to avoid this agreement in this context. Cf. Terminix Int’l Co. v. Ponzio, 693 So.2d 104 (Fla. 5th DCA 1997) (enforcing arbitration agreement against nonsignatory third-party beneficiaries).

Reversed and remanded.

NORTHCUTT and DAVIS, JJ., concur.

      .Because the record in this nonfinal appeal is limited, this statement of facts is based on allegations in the pleadings and on the content of the various documents involved in the sales transaction.

      . See 15 U.S.C. § 2310 (2001).

      . See § 501.204, Fla. Stat. (2001).

      . After the trial court ruled in the Consuegras’ case, the supreme court held that even a personal injury claim could still be subject to arbitration under the guidelines established in Seifert. See Sears Authorized Termite & Pest Control, Inc. v. Sullivan, 816 So.2d 603 (Fla.2002).


author: SALCINES, Judge.

text:
    Neil F. ANDERSON, Appellant, v. Angela S. ANDERSON n/k/a Angela S. Corson, Appellee.
    No. 2D01-5485.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.

      John E. Swisher, St. Petersburg, for Appellant.
    M. Katherine Ramers of M. Katherine Ramers, P.A., Dunedin, for Appellee.
   SALCINES, Judge.

Neil F. Anderson appeals the final judgment which awarded child support arrear-ages to Angela S. Anderson n/k/a Angela S. Corson and, for the first time, raises the issue of the court’s lack of personal jurisdiction and a defective service of process. We reverse the final judgment because the Florida courts have never had in personam jurisdiction over Mr. Anderson.

The parties were married in Massachusetts in 1982. After the birth of their child in May 1985, Mr. Anderson allegedly abandoned the mother and child. Mrs. Anderson resided in Massachusetts until July 1985 before moving to Florida. The attorney for Mrs. Anderson, Cynthia Bryant, filed a petition for dissolution of marriage in Pinellas County, Florida, on September 27, 1988. In the petition Mrs. Anderson sought custody of the parties’ child and child support, as well as health insurance for the child to be provided by Mr. Anderson, reimbursement for medical expenses incurred on behalf of the child, equitable division of the parties’ joint liabilities, and an award of attorney’s fees.

A totally defective affidavit of service of process was returned which Mrs. Anderson’s attorney filed as support for a motion for default. A default was then entered against Mr. Anderson by the clerk of court. From the records before this court, there is no evidence that service was ever perfected upon Mr. Anderson. A final judgment of dissolution was signed on November 16,1988.

Eleven years later, the Department of Revenue pursued child support arrearages on behalf of Mrs. Anderson and the clerk of court for Pinellas County sent a notice of arrearages to Mr. Anderson. There is no evidence that Mr. Anderson was aware of the 1988 dissolution proceedings before he received the Notice of Overdue Support Payments dated July 7,1999.

In order for the court to award child support, it was essential for the Florida court to acquire in personam jurisdiction over Mr. Anderson. See Hurlock v. Hurlock, 703 So.2d 535, 536 (Fla. 4th DCA 1997). The petition for dissolution filed by Mrs. Anderson’s attorney in 1988 did not allege sufficient material facts to establish a basis to exercise personal jurisdiction over Mr. Anderson in Massachusetts. To be sufficient, the petition was required to have stated that either the parties had maintained a matrimonial domicile in Florida at the time of the commencement of the action or that Mr. Anderson had resided in Florida preceding the commencement of the action. See Laney v. Laney, 487 So.2d 1109, 1110-11 (Fla. 1st DCA 1986). There were no such allegations and Mr. Anderson did not submit himself to the jurisdiction of the Florida courts. Because the trial court did not acquire personal jurisdiction over Mr. Anderson, the final judgment of dissolution was void ab initio. See Laney, 487 So.2d at 1110.

The final judgment of dissolution of marriage which required Mr. Anderson to pay child support is void, and therefore, the subsequent final judgment awarding arrearages to Mrs. Anderson is also void. The final judgment awarding arrearages is reversed.

Reversed.

STRINGER and DAVIS, JJ., Concur.


text:
    Kenyatah COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3316.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.
    James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Catesh Fearing, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Kenyatah Cooper contends that a summary reversal is warranted in her case because no record was made of her revocation of probation and sentencing hearing, and a record cannot be effectively reconstructed. Further, Ms. Cooper’s counsel suggests that a remand should be with instructions to conduct no further proceedings in this matter. The State agrees and joins in the request that the reversal be with instructions to conduct no further proceedings. Therefore, we reverse.

In June 2001, Ms. Cooper received 364 days in county jail after she was found in violation of drug offender probation. Ms. Cooper apparently admitted to the violation; however, the trial court proceeded with her revocation and sentencing hearing without having a court reporter present and without having an electronic recording of the proceeding made. Florida Rule of Judicial Administration 2.070(g) requires criminal proceedings to be reported. Without a record of the revocation and sentencing hearing, neither Ms. Cooper’s appellate counsel nor this court can provide sufficient, meaningful appellate review. See generally Freeman v. State, 804 So.2d 484 (Fla. 2d DCA 2001); Jones v. State, 780 So.2d 218 (Fla. 2d DCA 2001).

In this case, Ms. Cooper has completed her sentence. She cannot be located, and the record cannot be reconstructed. In fight of these facts, we agree summary-reversal is appropriate.

Reversed with instructions that no further proceedings are necessary.

CASANUEVA, SILBERMAN, and KELLY, JJ., Concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    David HILL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-666.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.
    James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   THREADGILL, EDWARD F., Senior Judge.

David Hill challenges the court’s imposition of $300 in investigative costs for the Pinellas Park Police Department. The State concedes error because the State failed to document its request for costs. See Tucker v. State, 832 So.2d 840 (Fla. 2d DCA 2002).

In requesting costs, the prosecutor merely stated: “And the Pinellas Park Police Department is asking for $300 in investigative costs.” No documentation was presented in support of this request, contrary to section 938.27(1), Florida Statutes (2000), which allows the court to impose the costs of prosecution, “including investigative costs incurred by law enforcement agencies ... if requested and documented by such agencies.”

Although Hill did not object at sentencing to the imposition of these investigative costs, he did raise this issue in his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which the trial court denied.

Accordingly, we strike the $300 in investigative costs and remand to the trial court with directions that such costs may be reimposed following the State’s production of the required documentation pursuant to Reyes v. State, 655 So.2d 111, 114 (Fla. 2d DCA 1995). See Tucker, 832 So.2d at 841; Taylor v. State, 821 So.2d 404, 405 (Fla. 2d DCA 2002); Welch v. State, 724 So.2d 651 (Fla. 2d DCA 1999).

Costs stricken; remanded.

FULMER and CANADY, JJ„ Concur.


author: CASANUEVA, Judge.

text:
    Thomas PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5301.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.
   CASANUEVA, Judge.

Thomas Patterson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, ■ he alleged three grounds of ineffective assistance of counsel. We affirm without discussion on the first two grounds, but we reverse and remand for further proceedings on the third ground.

On November 19, 1998, a jury convicted Patterson of second-degree murder. The court sentenced him to life in prison. In ground three of his motion, Patterson alleged that the State presented the testimony of two witnesses who implicated him in the murder of a neighborhood drug dealer. He alleged that his counsel was ineffective for failing to investigate four other witnesses from the neighborhood and for failing to call them to testify at trial. The trial court denied this claim on the basis that Patterson failed to describe the substance of the witnesses’ testimony or explain how the testimony would have made a difference at trial. The trial court also concluded that defense counsel did not call one of the witnesses to testify because the witness refused to answer particular questions at the discovery deposition.

In his motion, Patterson provided in detail the identity of the witnesses. He also described the substance of their testimony by alleging what they observed the day of the murder and what they could testify to at trial. Last, he explained how the omission of their testimony prejudiced the outcome of the trial. Patterson claimed that the witnesses’ testimony would have impeached the State’s witnesses, refuted the State’s witnesses’ testimony, and shown that other people were involved in the death of the victim, thereby creating reasonable doubt that he committed the murder. Therefore, Patterson stated a facially sufficient claim. See Odom v. State, 770 So.2d 195, 197 (Fla. 2d DCA 2000). Patterson is entitled to an evidentiary hearing unless the trial court can provide portions of the record that conclusively refute his claim. See id. In addition, the trial court concluded that defense counsel’s failure to call a witness for trial was tactical. Such a determination is generally inappropriate without an eviden-tiary hearing. Green v. State, 827 So.2d 1060, 1061 (Fla. 2d DCA 2002).

Accordingly, we reverse and remand for the trial court to either conduct an eviden-tiary hearing on this claim or provide record attachments that demonstrate that Patterson is not entitled to relief.

Affirmed in part, reversed in part, and remanded.

FULMER and COVINGTON, JJ., Concur.


author: STRINGER, Judge.

text:
    Richard COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4405.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.
   STRINGER, Judge.

Richard Cooper appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We conclude the motion sets forth one colorable claim. In his first claim for relief, Mr. Cooper alleges his trial counsel was ineffective for failing to call a community control supervisor as an exculpatory witness to testify she gave Mr. Cooper permission to postpone having a Global Positioning System (GPS) monitor on. This allegation satisfies rule 3.850(c) and the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Gaskin v. State, 737 So.2d 509 (Fla.1999); Honors v. State, 752 So.2d 1234, 1235-36 (Fla. 2d DCA 2000).

The portion of the record the trial court attached to its order summarily denying Mr. Cooper’s motion does not refute this claim conclusively. We take judicial notice of this court’s record of Mr. Cooper’s plenary appeal of his community control violation, which includes the revocation hearing transcript to which the trial court refers in its order. Review of that transcript shows the order describes accurately the testimony of the community control officer upon which the court relied to deny this claim, that his supervisor told him Mr. Cooper never mentioned the GPS monitor when she talked to him. However, if Mr. Cooper’s counsel had called the officer’s supervisor to testify and her testimony was what he claimed it would be— that she told Mr. Cooper not to worry about having the GPS monitor put on — the outcome of the proceeding likely would have been different.

Therefore, the community control officer’s hearing testimony does not refute this claim conclusively. Accordingly, the trial court’s summary denial of this claim is reversed, and this case is remanded for an evidentiary hearing. We affirm the trial court’s summary denial of the remaining claims.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and COVINGTON, JJ„ Concur.


author: NORTHCUTT, Judge.

text:
    Richard V. PRUITTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5182.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.
   NORTHCUTT, Judge.

Richard V. Pruitte argues that his violent career criminal sentence is illegal under Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), which held chapter 99-188, Laws of Florida, unconstitutional. However, his claim is facially insufficient because he has failed to allege how he was affected by the amendments to the violent career criminal statute contained within chapter 99-188. Therefore, we affirm without prejudice to any right Pruitte may have to file a facially sufficient rule 3.800(a) motion raising this claim.

Affirmed.

ALTENBERND, C.J., and KELLY, J., Concur.


author: KELLY, Judge.

text:
    George J. SWAIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-190.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.
   KELLY, Judge.

George J. Swain, Jr., challenges the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for Swain to receive prison credit for time previously served.

Swain was originally sentenced to a prison term, followed by three years’ probation. Upon violation of probation, the trial court sentenced Swain to eighty months in prison. The sentence awards Swain with eighty-eight days of jail credit, but does not award prison credit (the prison credit provision on the form is not checked).

Upon sentencing for a violation of probation, the trial court’s failure to properly credit the defendant for prior prison time served is an issue which a defendant may raise in a rule 3.800(a) motion. See Burnett v. State, 745 So.2d 1043 (Fla. 2d DCA 1999). Here, Swain’s sentence upon violation of probation does not grant him credit for time previously served in the Department of Corrections (DOC) on this same charge. Upon violating the probationary portion of a split sentence, the defendant is entitled to credit for time served on the incarcerative portion. See Singletary v. Slay, 688 So.2d 319 (Fla.1997); Layman v. State, 787 So.2d 44 (Fla. 2d DCA 2001). Thus, we reverse the denial of Swain’s motion and remand for the trial court to check the prison credit provision of Swain’s sentence so that, in addition to the eighty-eight days of jail credit, he receives prison credit for all the time he previously served in the DOC on this charge prior to resentencing.

Reversed and remanded.

CASANUEVA and COVINGTON, JJ., Concur.


text:
    Adalberto TOVAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-15.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.
   KELLY, Judge.

Adalberto Tovar challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Tovar argues that his three-year minimum mandatory sentence is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). We affirm the order of the trial court because Tovar’s motion is facially insufficient as he does not affirmatively allege that his date of offense falls within the window created by Taylor. We note, however, that the trial court did not dismiss Tovar’s motion as facially insufficient. Instead, in its December 10, 2002, order, it dismissed Tovar’s motion without prejudice to refile when the Florida Supreme Court had reviewed the decision in Taylor. On May 29, 2002, several months before that order was written, the State filed a voluntary dismissal of said review in State v. Taylor; 821 So.2d 302 (Fla.2002) (table decision). Our affirmance is therefore without prejudice to Tovar’s filing a facially sufficient rule 3.800(a) motion.

Affirmed.

CASANUEVA and COVINGTON, JJ., Concur.


text:
    Dustin D. BULLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-187.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.
   SALCINES, Judge.

Dustin D. Bullock challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Bullock argues that his three-year minimum mandatory sentence is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). We affirm the order of the trial court because Bullock’s motion is facially insufficient as he does not affirmatively allege that his date of offense falls within the window created by Taylor. We note, however, that the trial court did not dismiss Bullock’s motion as facially insufficient. Instead, in its December 10, 2002 order, it dismissed Bullock’s motion without prejudice to refile when the Florida Supreme Court had reviewed the decision in Taylor. On May 29, 2002, several months before that order was written, the State filed a voluntary dismissal of said review in State v. Taylor, 821 So.2d 302 (Fla.2002) (table decision). Our affirmance is therefore without prejudice to Bullock’s filing a facially sufficient rule 3.800(a) motion.

Affirmed.

CASANUEVA and COVINGTON, JJ., Concur.


author: BROWNING, J.

text:
    David McKINZIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1035.
    District Court of Appeal of Florida, First District.
    May 20, 2003.

      Nancy A. Daniels, Public Defender and Anne H. Dunlap, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

This is a timely appeal of a final order of judgment and sentence. Appellant alleges that the trial court erred in excluding the testimony of a potential defense witness based on a sequestration violation without having conducted a proper inquiry pursuant to Atkinson v. State, 317 So.2d 807 (Fla. 4th DCA 1975). We agree, reverse the conviction and sentence, and remand for a new trial.

Appellant’s car was repossessed, and an inventory of the car was conducted by a recovery company’s employee who allegedly discovered cocaine in the car. During that employee’s testimony, the owner of the recovery company was in the courtroom for less than a minute, left, returned to listen for a time between thirty seconds and five minutes, said “that is not true,” and asked the bailiff to give his business card to the public defender, which the bailiff did when the employee finished testifying. After the state rested its case and the defense motion for judgment of acquittal was denied, the defense announced that it would call the owner of the recovery company. Neither party had subpoenaed him, and the state challenged his testimony on the basis of a violation of the rule of sequestration. The trial court ruled that, because the owner was apparently known as a potential witness to both the state and the defense, the owner’s testimony should be excluded. Despite this ruling, the trial court put the owner under oath to “clarify on the record his status, where he was, what was going on.”

The owner testified that his attorney suggested he “listen in” to the trial, that he arrived at the courthouse and heard the employee’s testimony, and that he, contrary to her testimony, had conducted the inventory of the car and had not found any drugs, but that the employee came up to him afterwards with the drugs, saying “look here what I found.” The trial court then reaffirmed its previous ruling, on the reasoning that the owner “indicated that it was [the employee’s] testimony that influenced him to ... come forward.... ”

The trial court erred because its inquiry was insufficient to meet the requirements of Atkinson, as affirmed by the supreme court in Dumas v. State, 350 So.2d 464 (Fla.1977). When faced with a sequestration violation, the trial court must conduct an Atkinson inquiry to determine whether the violation of the rule was “with the knowledge, connivance, or consent of the defendant or his counsel.” Atkinson, 317 So.2d at 808. Where the violation was with that knowledge or consent, the testimony must be excluded. Here, the record reveals that the violation of sequestration was not with the knowledge, connivance, or consent of Appellant or his counsel. The trial court did not inquire of the owner whether Appellant or Appellant’s counsel suggested that he listen to the employee’s testimony. Appellant said at the sentencing hearing that he had not known anything about the owner, presumably until the owner testified at trial. Counsel informed the trial court on the day of trial that he was not aware of the owner’s testimony until that day. Further, the trial court did not make any findings that the sequestration violation was with the knowledge, connivance, or consent of Appellant or his counsel.

A second test to determine whether a sequestration violation should preclude a witness from testifying was put forth in Steinhorst v. State, 412 So.2d 332 (Fla.1982). There, the supreme court restated the Dumas holding, but further explained that the test to determine whether to exclude a witness is whether the sequestration violation changed the witness’s testimony from what it would have been had the rule not been violated. Steinhorst, 412 So.2d at 336. Application of this test to the instant case also demonstrates that the trial court erred in excluding the owner’s testimony. The trial court inquired as to what testimony the owner would give, but did not inquire as to whether that testimony changed as a result of his hearing parts of the employee’s testimony. Further, there was no evidence, nor a trial court finding, that the owner’s testimony actually differed from what it would have been had he not heard the employee s testimony.

The state argues for affirmance on the ground that the error is harmless, but we do not conclude that the error is harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Appellant also raised issues relating to his sentence, to the ruling on the motions for continuance, and his inability to afford a fingerprint expert. These claims are waived because they were not argued in Appellant’s initial brief. See Mapp v. Armco Specialty Steel Div., 543 So.2d 1296 (Fla. 1st DCA 1989); State Dep’t of Ins. v. First Floridian Auto and Home Ins. Co., 803 So.2d 771, 775 (Fla. 1st DCA 2001).

Accordingly, we REVERSE Appellant’s conviction and sentence, and REMAND for a new trial.

ALLEN, C.J. and WEBSTER, J., concur.