author: PALMER, J. COBB, W., Senior Judge, HARRIS, C., Senior Judge,

text:
    STATE of Florida, Appellant, v. Maurice BUSH, Appellee.
    No. 5D01-2416.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    Rehearing Denied March 10, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Alfred Washington, Jr., Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State appeals the trial court’s order granting Maurice Bush’s motion for post-conviction relief. Concluding that Bush failed to meet the burden of proving that his trial counsel was ineffective, we reverse the trial court’s grant of a new trial.

Bush was charged with two counts of sexual battery. After a jury trial, he was convicted of committing the crimes of battery and sexual battery. Bush appealed his judgments and sentences to this court, where they were per curiam affirmed. See Bush v. State, 708 So.2d 282 (Fla. 5th DCA 1998).

Thereafter, Bush filed a motion seeking postconviction relief raising numerous claims, including a claim of ineffective assistance of trial counsel for failing to call various witnesses. Specifically, Bush alleged that the witnesses were available and ready to testify and that:

The only reason these witnesses were not present when they were actually needed was because they were told by defense counsel Weaver and his investigator that they would not be needed until Friday, February 14, 1997. Unfortunately for the defendant, the witnesses were actually needed on Wednesday or possibly even Thursday, February 12 or 13, 1997; one (1) or two (2) days before they were told to be present.

The trial court conducted an evidentiary hearing on the motion. Upon review of the evidence presented, the trial court granted the motion concluding that trial counsel had erred when he decided not to call two witnesses, Mason Cook and Robert Lee Jones. The court ruled that, although trial counsel felt the evidentiary value of the witnesses’ statements was “sparse”, such testimony was in fact relevant and material. We reverse this ruling because not only was this ground not the basis of Bush’s rule 3.850 motion, but the trial court’s findings are not supported by the record.

First, no evidence was presented which indicated that trial counsel decided not to present these witnesses because the evi-dentiary value of their testimony was sparse. Instead, trial counsel testified that these witnesses were not presented to the jury because they failed to appear at trial even though they had received subpoenas from him. Second, no one testified that either defense counsel or his investigator told any of the witnesses anything about appearing, let alone that they would not be needed until Friday. The only witness who gave any testimony about why he did not show up was Mason Cook, who testified that a man called him and told him he did not have to come to court at all because “they” had his statement on tape. However, Cook did not know who the man was and did not identify him as being related to trial counsel or his investigator in. any way. As such, Bush wholly failed to prove the allegations contained in his motion for postconviction relief. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)(holding that in order to establish an ineffective assistance of counsel claim, a defendant must prove, in addition to prejudice, that counsel’s performance was deficient). Based on this record, ineffectiveness of trial counsel was not proven. See also Sweet v. State, 810 So.2d 854 (Fla.2002).

REVERSED.

COBB, W., Senior Judge, concurs and concurs specially, with opinion.

HARRIS, C., Senior Judge, dissents with opinion.

COBB, W., Senior Judge,

concurring and concurring specially.

I concur with the majority opinion that the evidence adduced below at the 3.850 evidentiary hearing did not establish that Bush’s original trial counsel, Weaver, was ineffective in his representation.

The dissent contends that it was attorney Weaver’s obligation to do more than merely subpoena two defense witnesses (Cook and Jones) to trial, and somehow do more than seek a continuance when those witnesses did not respond to their trial subpoenas and, again, do more than appeal the denial of his motion for a lengthier continuance to locate those witnesses. No such obligations existed. Weaver did everything that reasonably could have been expected of trial counsel. Indeed, what more could he have done?

The 3.850 motion for new trial was granted below because of the mistaken concept of the hearing judge (who was not the original trial judge) that Weaver deliberately declined to use Cook and Jones as witnesses because their testimony was “sparse.” The fact is that neither witness responded to a trial subpoena, and that fact cannot be blamed on Weaver. Weaver testified at the 3.850 hearing that his private investigative firm “were doing everything they could to stay in contact with these witnesses, (to) have them here.” There was no contrary evidence. Weaver had also asked Bush to help keep track of these witnesses, both of whom were his relatives. It is very clear that these two witnesses would have been called to the stand by Weaver had they not ignored their subpoenas.

If the trial court erred in not granting Weaver a longer continuance, that was an error that should have been corrected by this court on appeal. It is unreasonable to now blame Weaver for our mistake, if mistake it was. Nor should Weaver be blamed because Bush declined to take the stand in his own defense, which meant there was only one eyewitness in regard to the immediate facts of the alleged crimes.

HARRIS, C., Senior Judge,

dissenting.

Because I believe the trial judge made the appropriate decision, perhaps for the wrong reason (the very purpose of the tipsy coachman rule), I would affirm his granting the new trial. In order for us to properly resolve this matter, it is necessary that we go back to the beginning.

In 1994, Bush and Mott were at a wedding reception. Mott’s boyfriend left early and Mott needed a ride home. Bush offered to take her home and she agreed. There were some stops along the way. First, with another passenger, they stopped at a pool hall. Then after dropping the other passenger off, they stopped at Bush’s mother’s home for Bush to pick up something. Mott waited outside until a man, later identified as Mason Cook, bothered her. She then joined Bush inside the mother’s home. At this point, Mott alleges that Bush made sexual advances toward her and advised her that they would have sex before she arrived home. They then left the mother’s home, according to Mott, with her crying and Bush, with his hand on her back, forcing her into the car. They then proceeded to an orange grove where sexual intercourse occurred. Mott claims rape; Bush asserts that the sexual act was consensual.

Although only Bush and Mott were present during the sexual encounter, her version is supported by the fact that she soon thereafter reported the incident to the woman with whom she lived, and the police became involved. Bush’s version would have been supported by the testimony of Mason Cook, who allegedly remained outside the mother’s home and observed Bush and Mott leave for the orange grove and who testified on deposition that Mott was not crying and she was not forced into the car but rather it appeared that she and Bush were on a date. I say Bush’s version “would have been” supported by Cook’s testimony. The problem is that Cook did not appear at trial. When defense counsel was ready to call him at about 3:30 in the afternoon, Cook was nowhere to be found. This may have resulted from the confusion in delaying the start of trial. In any event, defense counsel asked for a recess until the following morning in order to locate Cook and present his testimony. Although the court granted a much shorter recess, Cook could not be found in the few minutes permitted and the defense was forced to trial without him. Because the defense elected not to put the defendant on the stand, Mott’s testimony went unchallenged. Bush was convicted and sentenced to thirty years in prison.

The issue on this rule 3.850 appeal is whether defense counsel was ineffective in failing to present a known witness whose testimony would tend to impeach Mott and support the consent defense urged by Bush. The trial judge granted the new trial by finding that counsel was ineffective in not presenting Cook’s (and another witness’) testimony. I would affirm because there is ample support in the record that counsel was ineffective in not making diligent efforts to assure the attendance of this supporting witness whose deposition was taken and was before the court.

Defense counsel did appeal the court’s denial of an over-night continuance. Under the circumstances, it was the best he could then do. We (and I was on the panel) per curiam affirmed the trial court’s discretionary ruling not to grant the continuance because the standard required by Geralds v. State, 674 So.2d 96 (Fla.1996), cert denied, Geralds v. Florida, 619 U.S. 891, 117 S.Ct. 230, 136 L.Ed.2d 161, was not met.

The State argued on the original appeal that the trial court’s discretion should be upheld because defense counsel had failed to exert due diligence to assure the appearance of the nón-appearing witness. Indeed, in Geralds, our • supreme court made due diligence an element of proof in order to prevail on a motion for continuance based on a non-appearing witness.

By affirming the trial court’s denial of the continuance based on defense counsel’s lack of due diligence in assuring the attendance of the witness, did we not in essence hold that defense counsel was ineffective in the way he handled this particular witness? The' State urged in its brief that the witness may not even have been subpoenaed. The record , appears unclear. Counsel at the very least should have kept in contact with the witness to make sure that the witness knew when to appear (particularly after the trial had been continued for a day) and that he continued to be available. Any change in this status should have immediately been reported to the court. No such diligence was shown by this record.

Additional response on the State’s argument on prejudice seems warranted. The test is not whether counsel’s deficiency would have “more likely than not altered the outcome of the case.” See Strickland v. Washington, 466 U.S. at 693, 104 S.Ct. 2052. Rather, the Strickland court held that the test is whether the defendant has shown “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” But what does “probability” mean?

If a “reasonable probability” does not mean “more likely than not” as determined by the Supreme Court, what does it mean? Justice Souter has told us in Strickler v. Greene, 527 U.S. at 296, 119 S.Ct. 1936 that he believes the term “significant possibility” would do better at capturing the degree to which the undisclosed evidence would place the actual result in question, sufficient to warrant overturning a conviction or sentence. This standard is only somewhat greater than the harmless error standard (the State has the burden of showing that there is no reasonable possibility that the error contributed to the conviction). Here, the defendant must show a substantial possibility that such prejudice exists. But this burden, according to Souter’s concurring/dissenting opinion in Strickler, can be met by showing that “one cannot be reasonably confident that not a single juror would have had a different perspective after an impeachment that would have destroyed the credibility of that story.” 527 U.S. at 305, 119 S.Ct. 1936. Cook’s testimony, if believed by the jury, would have cast doubt on the relationship between Bush and Mott shortly before the sexual encounter. Further, it would indicate that Mott had prevaricated in order to bolster her charge. And the test is not whether the trial judge, or we as appellate judges, believe the omitted testimony; the issue is whether there is a significant possibility that at least one of the jurors would have.

The significance of Justice Souter’s comments in Strickler concerning a standard less than “more likely than not” is shown by the fact that they were discussed with approval by the Florida Supreme Court in Gaskin v. State, 822 So.2d 1243, (Fla.2002), which then admonished that “[a]ll involved in the criminal justice system should take note of Justice Souter’s cautionary warning.” Gaskin, 822 So.2d at 1247 n. 3. Because I am not reasonably confident that not a single juror would have had a different perspective after hearing the omitted testimony, I would affirm the trial judge.

      . See Fla. R.Crim. P. 3.850.

      . Cook was a brother-in-law; Jones was a cousin.

      . See Bush v. State, 708 So.2d 282 (Fla. 5th DCA 1998).

      . The defense motion before the court urged that counsel was ineffective because he failed to have present and available to testify witnesses who had relevant and material testimony that would support the defense theory of the case. The trial court found ineffectiveness because at least one of the witnesses did have relevant and material testimony and counsel should have assured his presence. The court then opined that the reason counsel was ineffective was that he misjudged the value of the testimony. The reason for the ineffectiveness is surplusage. It is the fact of ineffectiveness, not the reason, that is important.

      . Rule 3.190(j), Florida Rules of Criminal Procedure, bars the introduction into evidence of depositions which are not in compliance with its terms. This rule has been used on several occasions to bar the introduction by the State of nonconforming depositions. Should the rule be rigidly enforced against a defendant when its enforcement would deprive the defendant of a fair trial? Courts have held that when considering excluding testimony because of a discovery violation "the proposition that the reciprocal rules of discovery should be followed” should be balanced against the defendant’s fundamental right to defend himself. See Mattear v. State, 657 So.2d 46 (Fla. 4th DCA 1995) (since the testimony sought to be introduced by the witnesses in the instant case was exculpatory in nature, exclusion of the testimony would deny appellant his fundamental right to defend himself in violation of the Sixth Amendment). It appears that if a court is going to deny a short continuance to permit defendant to locate a missing, subpoenaed witness whose testimony is of an exculpatory nature, the deposition taken by the State and readily available should be admissible by the defendant to assure his right to defend himself.

      . The concurring opinion takes the position that defense counsel simply wasn't ineffective for failing to have witnesses which he knew would be critical to his defense present at trial. After all, says the concurring opinion, the witnesses were subpoenaed (a fact questioned by the State) and a private investigator was charged with keeping up with the witnesses. And yet defense counsel was unaware at 3:30 p.m. on the day of trial when it was time to call the witnesses that they were not present. Whether it is defense counsel or his private investigator who is ineffective seems of little moment to the defendant. Even though a mistrial was declared on the original trial date, défense counsel never contacted (nor is there any indication that he had his private investigator do so) the very witnesses on which his defense rested to confirm that they knew the new trial date or that they could be present at the new time. Counsel can not simply issue a subpoena some weeks or months before a trial, particularly if the original trial date has been changed, and hope the witnesses will appear. Further, the position of the concurring opinion is at odds with the State’s position on the original appeal that defense counsel had failed to make a diligent effort to have his witnesses present and thus could not successfully challenge the trial court’s discretion in denying the continuance. Finally, if this court erred in our decision that defense counsel had failed to meet the Geralds's requirements in order to reverse the trial court's discretion in denying the continuance (a position I do not take), then affirming the trial court's grant of a new trial is the most (and least) we can now do.

      .The State's only other argument relative to this issue in the initial appeal was that denial of this testimony was not prejudicial and, in any event, that Cook’s credibility’would have been marginal. First, Cook's credibility should have been resolved by the jury, not the State. Second, the failure to present the only testimony tending to support the defense theory of the case met, in my view, Justice Souter's restatement of the Strickland prejudice standard to be a showing of a "substantial possibility” that at least one juror would have had a different perspective based on the impeachment testimony. See Strickler v. Greene, 527 U.S. 263, 296, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . This is not a "bird in the bush” situation; here, there was a witness in hand. When defense counsel is aware of a witness who has given testimony under oath favorable to his client prior to trial, his failure to produce that witness at trial seems presumptively ineffective.

      . The undisputed evidence is that the parties were friendly at the wedding; Mott accepted an offer for a ride home from Bush; Mott voluntarily accompanied Bush to his mother’s house; they went from the mother’s house to an orange grove; after Mott supplied a condom, they had sex; the condom came off during-sex but Bush proceeded to ejaculation. Mott testified that after Bush made it clear at his mother’s house that he intended to have sex with her, she resisted and was taken to the car and forced inside while she was crying. She testified that she provided the condom only after she believed her rape was inevitable. Bush’s witnesses would have testified that Mott "came on” to Bush at the wedding and that, as she came out of Bush’s mother's house, instead of being forced into the car crying, the parties appeared to be on a date. Had this evidence come in, the jury would have had -to decide whether Mott's tearful reaction upon her return home was because she was required to have sex through intimidation or whether her consent to have safe sex turned to remorse after she realized that the condom had come off and that she was exposed to pregnancy and/or AIDS. The jury, hearing only one side of the story, had no problem believing the former. But had the jury heard the rest of the story, is there a substantial possibility that at least one of the jurors would have viewed the evidence differently? The trial judge said yes and I agree.


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    Darrell Wayne HALE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-508.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    Certification Denied March 10, 2003.

      James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Darrell Wayne Hale [“Hale”], appeals his judgment and sentence. He raises three issues, none of which was raised at' trial, and which are argued on appeal to be “fundamental error.” Hale first complains that he is entitled to a judgment of acquittal on the charge of giving false verification of ownership to a pawnbroker, in violation of section 539.001(8)(b)8, Florida Statutes (2000). This statute is found within the statute called “Pawnbroker Transaction Form,” and details the information which must be contained on the form a pawnbroker must complete at the time of a pawn transaction. It provides that certain information must be contained on the front of the form, including:

A statement that the pledgor or seller of the item represents and warrants that it is not stolen, that it has no liens or encumbrances against it, and that the pledgor or seller is the rightful owner of the goods and has the right to enter into the transaction.

§ 539.001(8)(b)8, Fla. Stat. (2000). The section further provides that:

Any person who knowingly gives false verification of ownership or gives a false or altered identification and who receives money from a pawnbroker for goods sold or pledged commits:
a. If the value of the money received is less than $300, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083,' or s. 775.084.
b. If the value of the money received is $300 or more, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Id.

Hale complains that the evidence in this case is insufficient to convict him of receiving money from a pawnbroker by false verification of ownership. Hale acknowledges that the form he signed pawning the bar lights stated on the back in capital, but faint, type that:

PLEDGOR REPRESENTS AND WARRANTS THAT THE PLEDGED GOODS ARE NOT STOLEN, THAT THEY HAVE NO LIENS OR ENCUMBRANCES AGAINST THEM, AND THAT PLEDGOR IS THE RIGHTFUL OWNER OF THE GOODS AND HAS THE RIGHT TO ENTER INTO THIS TRANSACTION.

However, Hale notes that section 539.001(8)(b)8, Fla. Stat. (2000) requires that he “knowingly” give false verification of ownership. The employee of the pawnbroker who dealt with Hale testified that the employee fills out the pawn slip, asks only if the customer wishes to take a loan on the item or sell it, and does not ask their customers to read the pawn slip.

The bottom front of the form contained a signature line which had been signed by Hale, above which appeared this language: “Under penalty of perjury, I have read the foregoing document, and the facts stated in it are true.” The front of the form also stated, “See reverse side for information about nonpayment and additional contract terms and conditions.” Hale maintains that he cannot be bound by the representation of ownership contained in the form since he did not read it and was not asked to read it prior to signing.

Were this a civil transactio'n, Hale would be bound by the representation contained in the document. In Florida, in the civil context, a party who signs a document without reading it is bound by its terms in the absence of coercion, duress, fraud in the inducement or some other independent ground justifying rescission. Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 467 So.2d 311, 312 (Fla. 5th DCA 1985).

Nonetheless, the statute at issue expressly requires a criminal intent — that the defendant “knowingly” give false verification of ownership. See also Chicone v. State, 684 So.2d 736, 743 (Fla.l996)(“The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo American criminal jurisprudence.”), citing Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). This would appear to require either actual knowledge of the provision contained in the document or the equivalent.

In the criminal context, federal courts have interpreted the requirement that a defendant must “knowingly” make a false statement to include both actual or positive knowledge, as well as statements made with deliberate disregard for whether they were true or false or with a conscious purpose to avoid learning the truth. This is known as the “willful ignorance” or “willful blindness” doctrine, which holds that one may not deliberately close his or her eyes to what would otherwise be obvious to them. See generally Ira P. Robbins, The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens Rea, 81 Journal of Crim. Law and Criminology (1990).

Using the “willful blindness” doctrine, federal courts have determined that a defendant can be found guilty of “knowingly” making a false statement when he signs a document without reading it, if by doing so he acted with reckless disregard of whether the statements were true or with a conscious purpose to avoid learning the truth. See, e.g., United States v. Santiago-Fraticelli, 730 F.2d 828 (1st Cir.1984) (in prosecution for knowingly making false statement on firearms registration application, evidence was sufficient to support conviction where jury could have concluded that defendant’s failure to obtain translation into Spanish constituted reckless disregard or conscious purpose to avoid learning truth); United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir.1973) (suggesting that defendant could be convicted of knowingly making false statement on firearms registration application, even if he did not actually read form he signed and no questions were read to him, if by signing statement without reading it he acted with reckless disregard of whether the statements made were true or with conscious purpose to avoid learning the truth); United States v. Squires, 440 F.2d 859, 864 (2d Cir.1971) (defendant can be convicted of “knowingly” making false statement by signing form without reading it, if he deliberately avoided reading it and, if he had read it, he would have been “aware of a high probability” that he was prohibited from obtaining firearm).

We conclude that Hale’s signature on the document directly beneath the statement that he was signing under penalty of perjury and that the facts contained in the document were true is some evidence either of knowledge of the document’s contents or that his ignorance of the document’s contents was willful. Lack of proof that a defendant actually read the document will not insulate a defendant from prosecution under section 539.001(8)(b)8, even under the strictures of Chicone.

Hale next makes two double jeopardy arguments. He first complains that he cannot be convicted of both trafficking in stolen property and receiving money from a pawnbroker by false verification of ownership because these are degree variants of the same core offense, within the meaning of cases such as Sirmons v. State, 634 So.2d 153 (Fla.1994) and State v. Anderson, 695 So.2d 309 (Fla.1997).

The double jeopardy clause protects against multiple punishments for the “same” offense, except as provided by law. Gordon v. State, 780 So.2d 17 (Fla.2001). However, under Florida law, the fact that offenses contain separate elements does not end the double jeopardy inquiry. Under Florida law, multiple convictions for offenses which contain different elements can also be prohibited (e.g. they are considered the “same” offense within the meaning of the double jeopardy prohibition) if the offenses are “degrees of the same offense as provided by statute.” Id. at 20-21; § 775.021(4)(b), Fla. Stat. (2000).

Trafficking in stolen property and receiving money from a pawnbroker by false verification of ownership are separate offenses for the purposes of the Blockburgey test, which inquires whether each offense has an element the other does not. See State v. Craft, 685 So.2d 1292 (Fla.1996). “The elements of dealing in stolen property are trafficking or endeavoring to traffic in property that the defendant knows or should have known was stolen.” State v. Crider, 625 So.2d 957, 959 (Fla. 5th DCA 1993). Under section 812.012(8), Florida Statutes, the term “traffic” means: “(a) [t]o sell, transfer, distribute, dispense, or otherwise dispose of property [or] (b) [t]o buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.” The elements of the offense of receiving money by false verification of ownership are knowingly giving false verification of ownership or false identification, and receiving money from a pawnbroker for goods sold or pledged. Wiley v. State, 830 So.2d 889 (Fla. 1st DCA 2002). As these statutory definitions indicate, each offense contains an element the other does not. Scalf v. State, 573 So.2d 202 (Fla. 1st DCA 1991). Trafficking requires the state to prove that the defendant knows or should have known that the property involved was stolen. The receiving money offense requires the state to prove that the defendant gave false verification of ownership or false identification. Id. at 204, n. 4. Nor do the two offenses appears to be “ ‘degree variants’ or aggravated forms of the same core offense.” See Gordon, 780 So.2d at 21. The crime of trafficking in stolen property is directed at the disposition of stolen property. The receiving money offense is directed at knowingly giving false verification of ownership or false identification as part of a transaction with a pawnbroker. Thus, one statute has at its core a theft offense, and the other is concerned with the duty not to lie. Dual convictions for the two offenses therefore are not improper.

Hale finally argues that he cannot be convicted of both trafficking in stolen property and petit theft, if the two offenses involve the same property. This issue is controlled by section 812.025, Florida Statutes (1999), which states:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

Under this section, Hale’s convictions for both trafficking and petit theft cannot stand. Wolcott v. State, 774 So.2d 954 (Fla. 5th DCA 2001). We accordingly vacate the lesser petit theft conviction. Cooper v. State, 794 So.2d 615 (Fla. 2d DCA 2001).

AFFIRMED in part; REVERSED in part.

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

      . Although not relied upon by Hale, probably because he never read the pawn slip, we are concerned about the placement of the statutory warranty of ownership required to be placed on the front of the form. On this form, this important provision was on the reverse of the form, in pale grey type, and nothing called attention to it. Although due to the length of the statutory provision, it may be awkward to place prominently on the front of the form, the statute clearly requires that is where it must be placed.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Bo CHRISTMAN, Appellee.
    No. 2D01-5596.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    Rehearing Denied March 5, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, Bartow, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellee.
   DAVIS, Judge.

The State appeals the trial court’s order granting Bo Christman’s motion to suppress. The trial court found that law enforcement improperly stopped Christman and requested driver’s license information, which led to Christman’s ultimate arrest, search of his vehicle, and the discovery of narcotics. We reverse.

Christman drove his automobile into a gas station at approximately 5:00 a.m. A sheriffs deputy was parked in the station’s parking lot on break. Christman pulled his car up to the fuel pump and exited the vehicle. As he did so, the deputy pulled his marked car over to the area where Christman’s vehicle was parked. The deputy’s car was stopped perpendicular to the rear of Christman’s car. The deputy spotted a transporter tag on the back of Christman’s vehicle. Being unfamiliar with the tag, the deputy called out to Christman to inquire as to the nature of the tag. Christman walked over to the deputy, who was still in his car. As he engaged Christman in conversation, the deputy detected an odor of alcohol on Christman’s breath and observed that Christman’s eyes appeared bloodshot and glassy. The deputy exited his vehicle and asked Christman for his driver’s license. When Christman produced the license, the deputy found that it was restricted to business purposes only. Upon inquiry, Christ-man advised that he had been just driving around. Because driving around at 5:00 a.m. did not amount to business purposes, the deputy arrested Christman on a violation of the license restriction. After taking Christman into custody, the deputy searched Christman’s vehicle and found narcotics. •

At the suppression hearing, the trial court found that “the police officer effectively stopped the Defendant by pulling his vehicle perpendicular to the Defendant while he was refueling his vehicle.” Further, the court determined that the officer erred in asking for Christman’s driver’s license “when there was no articulable suspicion that a crime had been committed” and that this inquiry turned the incident into a stop. The trial court concluded that this was not an encounter because Christ-man’s actions were innocent in nature. The court further determined that by directing the defendant to respond, the officer effectively detained Christman without reasonable suspicion. Accordingly, the trial court granted the motion to suppress.

A ruling on a motion to suppress is a mixed question of law and fact. While the trial court’s factual findings are entitled to deference, State v. Setzler, 667 So.2d 343 (Fla. 1st DCA 1996), the trial court’s application of the law to the facts is reviewed de novo, Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002).

The trial court’s finding that the deputy’s act of pulling his car up to the side of Christman’s car was, in effect, a stop of Christman is not supported by the testimony. The only witness at the hearing was the deputy. He testified that when he pulled his car up to where Christman was pumping gas, Christman could have left in his vehicle by pulling forward or by putting his car in reverse and backing away from the gas pump. The testimony indicated that the mere positioning of the deputy’s car did not in any way prevent Christman from leaving the scene. Accordingly, the trial court erred by finding that the positioning of the cruiser converted the consensual encounter into an improper stop or detention.

Furthermore, the trial court’s conclusion that the deputy needed “articulable suspicion that a crime had been committed” before he could request driver’s license information is an inaccurate statement of law. As expressed in Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999), an officer is entitled to request identification and a driver’s license as part of a consensual citizen encounter.

Based on the facts presented, the deputy’s conversation with Christman was but a consensual encounter until the deputy suspected that Christman was in violation of the business purposes restriction on his license. At that point in time, the deputy had probable cause to make the arrest. The search that followed was incident to that arrest. Accordingly, the trial court erred in suppressing the evidence.

Reversed and remanded.

BLUE, C.J., and COVINGTON, J., Concur.


author: PER CURIAM.

text:
    Maria MATALLANA, etc., et al., Appellants, v. SCHOOL BOARD OF MIAMI-DADE COUNTY, Appellee.
    No. 3D01-3291.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.

      Ginsberg & Schwartz, and Arnold Ginsberg; and Manuel R. Morales, Jr., Miami, for appellants.
    Pyszka, Blackmon, Levy, Mowers & Kelley, and Cindy J. Mishcon, Miami Lakes, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment in favor of the School Board of Miami-Dade County in Maria Matallana’s wrongful death suit, brought as personal representative for the estate of her son, David Matallana. We affirm on the authority of Concepcion v. Archdiocese of Miami, 693 So.2d 1103, 1105 (Fla. 3d DCA 1997) (stating that “a school’s obligation of reasonable supervision must come to an end and the parent or guardian’s duty of supervision must resume ... when the student leaves the school’s premises during non-school hours and is no longer involved in school-related activities.”).

David Matallana and Leonardo Diaz were students at G. Holmes Braddock High School. On February 8, 1999, they met after school behind a nearby shopping area in order to fight. Diaz withdrew the gun he had been carrying around all day in his pocket, shot and killed Matallana. Ma-tallana’s parents brought a wrongful death suit against the School Board, alleging that the School Board had a duty to prevent the shooting, should have known that Diaz had violent tendencies, had threatened to harm Matallana, and had brought a gun to school. They seek to distinguish Concepcion by arguing that on the day of the shooting, the decedent had complained to a school security guard that someone wanted to fight him. The guard told him to relax and stay out of trouble. Although school policy required that the encounter with the student be reported to a counselor or administrator, the guard did not do so. Ma-tallana’s parents argue that had the incident been reported, administrators would have interviewed Matallana, discovered who the fight was with, and interviewed that student as well.

We find that Concepcion is dispositive because the incident occurred off school premises and was unrelated to any school activity. The fact that the security guard did not comply with school policy does not change the fact that the incident occurred at a time when the school had no duty to supervise the students.

Affirmed.


author: BLUE, Chief Judge. COVINGTON, Judge,

text:
    Clifford Earl THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3217.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.
    Rehearing Denied March 5, 2003.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Michele Taylor, Assistant Attorney General, Tampa, for Appellee.
   BLUE, Chief Judge.

Clifford Earl Thomas appeals his conviction for attempted second-degree murder. Because the trial court improperly commented on evidence critical to the defense, we reverse and remand for a new trial.

Around midnight on August 17, 1999, Mariam Knight Gloster was discovered lying on the ground naked and bloodied with multiple stab wounds. Thomas was charged with attempted second-degree murder. At trial, evidence was introduced showing three different versions of how Thomas spent that evening. According to Gloster, who was a reluctant witness, she was stabbed from behind by an assailant who said nothing before attacking her. There was a lot of tussling for the knife, and Gloster was stabbed eleven to fourteen times. Gloster did not know how her clothes came off, and she denied that the attack occurred during a prostitution-for-drugs encounter. Gloster admitted smoking crack cocaine and drinking several beers prior to the attack. When Gloster was found, she said that someone named “Tim” stabbed her. Later, Gloster identified Thomas from a photopack. She said that she knew him from high school in the 1980’s. The neighbors who found Gloster and the responding emergency personnel testified that it was pitch dark in the area where Gloster was found, while Gloster and a law enforcement officer testified that there was some light.

In a tape-recorded statement to law enforcement, Thomas said that Gloster asked if he wanted to have sex with her in exchange for drugs. Thomas did not have any drugs but he offered her $10. Then, when Thomas told Gloster that he did not have any money, he said that Gloster came at him with a knife. According to Thomas’s taped statement, Gloster fell on the knife. Although they struggled, Thomas said he never touched the knife, and he could not explain the number of stab wounds, other than by saying that Gloster kept coming at him and he kept pushing her hand away.

At trial, Thomas recanted his statement to the police. He denied any involvement with Gloster, denied stabbing her, and said that he was home all night. His mother and one sister also testified that Thomas was home that evening, which was another sister’s birthday. Thomas’s mother testified that she and Thomas watched TV in the living room from approximately 9:30 p.m. until she fell asleep at 12:30 a.m. She said Thomas was on the couch when she went to sleep and he was on the couch dressed in the same clothes when she woke up the next morning. His sister testified that Thomas was on the couch when she went to bed around 10:00 p.m. and was still there, in the same clothes, when she woke up the next morning. She testified that she knew he did not leave during the night because she would have heard a bell that sounds when the door is opened. Thomas and his family all denied that he ever used the nickname Tim. The evidence showed that Thomas and his family lived about seven miles from where Gloster was attacked and that Thomas did not have a car at that time.

In explaining his apparent confession, Thomas testified that he had a conversation with the police before the tape recorder was turned on. The interrogating officer denied any unrecorded conversation but later admitted that there was a brief exchange before the tape was started. According to Thomas, the police told him everything that was going on, told him that Gloster was a known prostitute and drug dealer, and said that Thomas would get off on a lesser charge if he claimed self-defense. Thomas, who has an eleventh-grade education, said that he denied the charges but then confessed because he could not pay for an attorney and he was told by the police that it was the only way he was going to get out. From this brief summary, it is apparent that the defense needed to establish the unrecorded conversation to invalidate Thomas’s recorded confession.

During the defense’s cross-examination of the interrogating officer, the following occurred:

[DEFENSE COUNSEL]: You indicated to Mr. Thomas that he was going to be arrested unless he told you he did this in self-defense?
[WITNESS]: No. I don’t remember that conversation. I remember I told him he was already arrested. That’s what I just read here [in the transcript of the taped statement].
[DEFENSE COUNSEL]: And you told him that he was — the only way he was going to get out of it was to say he did it in self-defense?
[WITNESS]: He didn’t know he was going to get out of it.
[PROSECUTOR]: Judge, I would object. This is argumentative, and I don’t think it’s in the transcript.
THE COURT: Sustained.
CONTINUED CROSS-EXAMINATION
[DEFENSE COUNSEL]: Did you indicate to him that the only way he would get some sort of bond to get out of jail was if he said he did it in self-defense?
[WITNESS]: I just listened to the tape, and I didn’t see that in there.
[DEFENSE COUNSEL]: Did you indicate to him at any point that Miriam Gloster was a prostitute and was using drugs?
[PROSECUTOR]: Judge, I would object.
THE COURT: Sustain the objection.
[Defense Counsel], stay with the nature of the conversations between the two.

(Emphasis added.) Defense counsel objected, moved for a mistrial, and requested “some sort of instruction to the jury at this point in that you just said the jury heard the conversations between the two. It’s going to be our position that they didn’t hear the entire conversations between the two.... ” The trial court refused, stating that it would give an instruction if the evidence later indicated that such a conversation happened. During the second day of this two-day trial, Thomas testified in his defense and detailed the unrecorded conversation that preceded his taped statement. Recalled in the defense case, the interrogating officer admitted that there was a minor exchange of words before the tape recorder was started but denied that anything of substance was said. Defense counsel did not renew his request for a curative instruction regarding the trial court’s statement the previous day.

By its comment for defense counsel to stay within the nature of the conversation between the two, the trial court strayed into a factual issue for the jury’s determination — namely, whether there was an unrecorded conversation that preceded Thomas’s alleged confession. Section 90.106, Florida Statutes (2001), prohibits a trial judge from summing up the evidence or commenting to the jury on the weight of the evidence, a witness’s credibility, or a defendant’s guilt. A defendant is “entitled to a fair trial in accordance with law and with precedents established through the years. One of the oldest of these under our system is an inhibition against any comment by the judge on the evidence in the case.” Raulerson v. State, 102 So.2d 281, 285 (Fla.1958).

[A] trial court should avoid making any remark within the hearing of the jury that is capable directly or indirectly, expressly, inferentially, or by innuendo of conveying any intimation as to what view he takes of the case or that intimates his opinion as to the weight, character, or credibility of any evidence adduced.

102 So.2d at 285 (quoting Leavine v. State, 109 Fla. 447, 147 So. 897, 902 (1933)). Viewing the trial court’s statement in context with its ruling on the State’s objection to defense counsel asking questions about matters that were not contained in the transcript, the jury could have concluded that the trial court did not believe there was an unrecorded conversation between the interrogating officer and Thomas. We conclude the trial court erred by commenting on the evidence.

The harmless error rule applies to this issue, see Millett v. State, 460 So.2d 489 (Fla. 1st DCA 1984), and the State carries the burden “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction,” Rigsby v. State, 639 So.2d 132, 133 (Fla. 2d DCA 1994) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)). From a complete review of the record, we conclude that the trial court’s comment was not harmless error because the trial court commented on the evidence that went to the very foundation of the defense.

In Brown v. State, 678 So.2d 910, 911 (Fla. 4th DCA 1996), the State’s case “depended entirely on the testimony of two witnesses whose accounts differed from one another in several respects. Additionally, one’s testimony was internally inconsistent and impeached on several points.” The Fourth District reversed based on the trial judge’s statement, made during the defense closing argument, that there was no evidence either witness had lied. Discussing “the dominant position occupied by a judge,” the appellate court stated that the impartiality of the trial was destroyed by comments tending to express a judge’s view of the evidence. 678 So.2d at 911. In Esposito v. State, 243 So.2d 451, 452 (Fla. 2d DCA 1970), this court reversed because the trial judge infringed on the jury’s deliberations by commenting on testimony by a witness, even though we found “merit to the court’s statement.” And in Beckham v. State, 209 So.2d 687, 687-88 (Fla. 2d DCA 1968), this court reversed based on a trial judge’s inadvertent reference to a gun found at the “scene of the crime,” even though the judge later explained to the jury that he had intended to refer to the “scene of the alleged crime” and instructed the jury to disregard his earlier statement.

This case presented a credibility determination between Thomas, who testified in his own defense and presented alibi witnesses, and the victim, who could not recall certain details from that evening and who first identified her attacker using a nickname that only she associated with Thomas. It was essential for the defense to successfully attack Thomas’s apparent confession. The trial court erred by commenting, even indirectly, on the existence vel non of an unrecorded conversation between Thomas and the interrogating officer. Given the significance of this issue to the defense, and the lack of overwhelming evidence of guilt, it cannot be said that the error was harmless. “Where there is simply a doubt, as here, that an accused has been prejudiced by a remark of the court, we must grant him a new trial.” Beck-ham, 209 So.2d at 688 (quoting Robinson v. State, 161 So.2d 578, 579 (Fla. 3d DCA 1964)).

Reversed and remanded for a new trial.

DAVIS, J., Concurs.

COVINGTON, J., Dissents with opinion.

COVINGTON, Judge,

Dissenting.

I respectfully dissent. The majority’s opinion is premised on the notion that the trial court’s statement “Stay with the nature of the conversations between the two” is a comment on the evidence. I disagree. The trial court’s statement did not amount to a comment on the evidence which would require a new trial.

The cases cited by the majority, in which new trials were mandated, involve different factual scenarios than the one before us. For instance, in Esposito v. State, 243 So.2d 451 (Fla. 2d DCA 1971), a state witness had been given a concurrent sentence in exchange for agreeing to testify against Esposito. During cross-examination the defense attorney attempted to show that the sentence the witness received was inconsequential. After the State chose not to ask questions on redirect, the trial court judge commented that “[t]he statement that he got nothing [was not] correct and shouldn’t be so considered by the jury.” Id. at 452. This court found that the trial court had acted improperly in attempting to rehabilitate the witness, when that was the function of the prosecutor, and reversed for a new trial.

In Brown v. State, 678 So.2d 910 (Fla. 4th DCA 1996), the following dialogue transpired during the defense attorney’s closing argument:

JUDGE: That is just improper for you to call anybody a liar. It’s up to the jury to determine who might be mistaken or wrong.
COUNSEL: I was just—
JUDGE: I’m getting so concerned about this that I had to talk to you a couple times, if the state doesn’t object. It was improper for someone to call people liars.
COUNSEL: I was just commenting on the evidence.
JUDGE: There is no evidence that anybody is a liar. ... There is all kind of evidence, conflicting testimony, but because somebody isn’t consistent doesn’t mean they are necessarily a liar. It’s not up to you in this court to call anybody a liar. Do you understand that?
COUNSEL: Yes, Your Honor.” (emphasis supplied)

678 So.2d at 911 (quotation marks omitted). Likewise, on appeal, the Fourth District reversed for a new trial finding that the trial court’s commentary as to the credibility of the witness for the prosecution was prejudicial.

The error involved in Beckham v. State, 209 So.2d 687 (Fla. 2d DCA 1968), involved a comment made by the trial court in a colloquy with counsel concerning the alleged murder weapon. In remanding for a new trial, this court found that the trial court’s statement “This was the gun found at the scene of the crime ” constituted reversible error. Id. at 687.

Quite simply put, what occurred before the Esposito, Brovm, and Beckham courts is significantly different from the exchange that took place in the case at bar. For these reasons, I would affirm the judgment of the trial court.

      . The police were investigating this as an aggravated battery, but Thomas was ultimately charged with attempted murder.

      . The State has not argued that the error was harmless. Rather, the State argues that the trial court did not abuse its discretion in denying the motion for mistrial and that Thomas was not prejudiced by the lack of a curative instruction because he could have renewed his request. However, "the State's failure to argue harmlessness does not preclude an appellate court from applying the harmless error test, though it is not required to do so.” Heuss v. State, 687 So.2d 823, 824 (Fla.1996).

      . After the exchange at issue took place, the trial court, at side bar, denied defense counsel's request for a curative instruction. However, the trial court gave the defense attorney the opportunity to subsequently seek a curative instruction if there was evidence presented that additional unrecorded conversations took place between the police officer and Thomas. As recognized by the majority, despite the fact that there was testimony by both the police officer and Thomas concerning the unrecorded portion of the interrogation, the defense attorney did not seek such a curative instruction at a later time.


author: PER CURIAM. ALTENBERND, Judge,

text:
    Deanna DOYLE-VALLERY, M.D.; Deanna Doyle-Vallery, M.D., P.A.; and Corcoran, Easterling & Doyle-Vallery, Ltd., Appellants, v. Julie B. ARANIBAR and Richard Aranibar, M.D., Husband and Wife, Appellees.
    No. 2D02-2311.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.
    Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellants.
    Theodore C. Eastmoore, Patricia D. Crauwels, and Alan W. Roddy of Matthews, Eastmoore, Hardy, Crauwels & Garcia, Sarasota, for Appellees.
   PER CURIAM.

The defendants, Deanna Doyle-Vallery, M.D.; Deanna Doyle-Vallery, M.D., P.A.; and Corcoran, Easterling & Doyle-Vallery, Ltd., appeal a postjudgment order granting attorneys’ fees and utilizing a multiplier to calculate the award pursuant to section 768:79, Florida Statutes (2001). We affirm the trial court’s order. This court has held that trial courts may consider and apply a contingency risk multiplier when awarding attorneys’ fees under the offer of judgment statute. See Pirelli Armstrong Tire Corp. v. Jensen, 752 So.2d 1275 (Fla. 2d DCA 2000). Although Judge Casanue-va’s dissent in Pirelli Armstrong presents a strong argument, the supreme court has accepted review of this issue in Allstate Insurance Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001), review granted, 826 So.2d 992 (Fla.2002) (holding trial courts are without legal authority to utilize contingency multiplier under section 768.79). Accordingly, we certify conflict with Sarkis.

Affirmed.

DAVIS and CANADY, JJ., concur.

ALTENBERND, J., concurs specially.

ALTENBERND, Judge,

concurring.

I concur in the decision to certify conflict with the Fifth District’s decision in Sarkis. If this panel were writing on a clean slate and if the issue were not already before the supreme court, I would vote to prohibit the use of a multiplier in determining a reasonable fee under section 768.79, Florida Statutes (2001).

Although I agree with most of Judge Casaneuva’s dissent in Pirelli, I am not convinced this issue necessitates a constitutional ruling. The matter should be resolved as a matter of statutory interpretation. The courts should interpret the reach of this statute to assure that the statute achieves its intended purpose and only that purpose.

The legislature created this statute to reduce the costs and the length of litigation while maintaining a neutral playing field. When the legislature inserted the phrase, “along with all relevant criteria,” into section 768.79(7)(b), it intended to incorporate those criteria relevant to these goals. The legislature did not intend for courts to use criteria that favor one side in the litigation over the other. As explained below, the multiplier has that effect. The legislature also did not intend for the courts to use criteria designed to promote more litigation rather than to limit existing litigation. It is beyond dispute that the multiplier was created to promote litigation, not to limit it. Thus, as a matter of simple statutory construction, the multiplier is not a “relevant criterion.”

Judge Casanueva is correct in his two most important observations. First, the multiplier was created primarily to promote the goal of access to courts. See Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 833 (Fla.1990); Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985). Using a multiplier encourages lawyers to accept representation at the inception of certain cases when lawyers might not otherwise accept such cases. The legislature and the courts apply a multiplier to assure that lawyers receive a sufficient economic incentive to represent clients who need access to the courts and cannot achieve that access without such incentives. Thus, the multiplier is designed to achieve a public policy that is separate and distinct from the policy of encouraging early settlement of lawsuits. If anything, by encouraging the filing of more lawsuits, the multiplier creates congestion in the judicial system that makes it more difficult for section 768.79 to achieve the goal of quicker, less expensive litigation.

Second, defense attorneys have no feasible means of entering into employment contracts based upon a contingency fee. As a result, the existing rules would rarely, if ever, permit the defendant to recover a fee that included a multiplier. This may not violate equal protection, but it does affect the workings of this statute. Because the multiplier benefits only the plaintiff, if it applies to the fees imposed under section 768.79, that statute will necessarily shift the value of lawsuits in favor of the plaintiff.

Perhaps an example can help demonstrate this mathematical circumstance. In a case involving no fee shifting, if the plaintiffs attorney and the defendant’s attorney have performed adequate discovery, they should know that the plaintiff has a certain probability of receiving a favorable verdict and that the award is likely to fall within a realistic range for such injuries. For example, in an automobile collision case, the lawyers might conclude that the plaintiff has a 60% chance of winning and the reasonable range of the verdict might vary between $80,000 and $150,000. Prior to trial, such a case has a present value between $48,000 and $90,000. The defendant, in order to avoid the costs of defense and the risks of uncertainty, would be well advised to settle this case for $75,000. The plaintiff, in order to avoid the 40% risk of no recovery, would likewise be well advised to settle for this amount. Under these rules, rational decision makers will settle this case for approximately $75,000.

If the risk of paying attorneys’ fees is added to this equation and the amount of the fees on both sides of the litigation is similar, this extra cost to achieve the outcome will not significantly affect the mathematical analysis and the parties should still settle the case for approximately $75,000. However, if the multiplier is used and only the lawyer with a contingency fee may recover this added fee, then the defendant faces a risk of paying a higher cost to achieve the outcome than the plaintiff faces. As a result, the mathematical point of equilibrium, where a settlement should occur, will shift in favor of the plaintiff. If the multiplier applies, the rational point for settlement might shift from $75,000 to $80,000. Without regard to the precise math, the point of settlement should always shift in favor of the plaintiff if both sides are presenting realistic offers of judgment.

“Different types of cases require different criteria to achieve the legislative or court objective in authorizing the setting of a reasonable attorney’s fee.” Quanstrom, 555 So.2d at 833. “We emphasize that the criteria and factors utilized in these cases must be consistent with the purpose of the fee-authorizing statute or rule.” Id. at 834. There is no legislative history suggesting that the legislature passed section 768.79 to favor plaintiffs. It seems inconceivable that the statute should be so interpreted if such an interpretation can be avoided. Because the legislature did not expressly mandate a multiplier and such a factor can be judicially authorized only as a criterion “relevant” to the purposes of this statute, the courts should reject the temptation to permit a multiplier merely because it is used to set reasonable fees in other contexts.

      . It should be noted that a defendant filing an offer of judgment under section 768.79 in a case where a multiplier is authorized by another statute should presumably include within that offer an award of attorneys' fees sufficient to allow for an appropriate multiplier. The issue in this case is not the fees awarda-ble as a portion of the offer, but the fees to be assessed against a party for an imprudent rejection of a sufficient offer. There is no other statute in this case that would permit the plaintiff to recover a court-awarded fee including a multiplier.

      . The author has intentionally omitted a precise mathematical example in this concurrence. In part, he fears that such an example might dissuade those who hate math. In larger part, he dreads the personal embarrassment that could flow from the publication of his own faulty mathematical analysis. See Gingola v. Velasco, 668 So.2d 1054 n. 1 (Fla. 2d DCA 1996) (correcting faulty mathematical formula created by author of concurrence).

      . This example is a simple description of decision tree analysis, a mathematical model for economic decision making that assesses the probabilities of various outcomes and the costs of achieving those outcomes. Such models can be adapted to include many additional factors, such as comparative negligence. See Mind Tools — Decision Tree Analysis, at http://www.mindtools.com/dectree.html (last visited Jan. 31, 2003).


author: ALTENBERND, Chief Judge.

text:
    Deanna DOYLE-VALLERY, M.D.; Deanna Doyle-Vallery, M.D., P.A.; and Corcoran, Easterling & Doyle-Vallery, Ltd., Appellants, v. Julie B. ARANIBAR and Richard Aranibar, M.D., Husband and Wife, Appellees.
    No. 2D02-2311.
    District Court of Appeal of Florida, Second District.
    March 14, 2003.

      Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellants.
    Theodore C. Eastmoore, Patricia D. Crauwels, and Alan W. Roddy of Matthews, Eastmoore, Hardy, Crauwels & Garcia, Sarasota, for Appellees.
   ORDER ON MOTION TO RECALL MANDATE AND STAY PROCEEDINGS PENDING DISCRETIONARY REVIEW IN THE SUPREME COURT OF FLORIDA

ALTENBERND, Chief Judge.

More than fifteen days after the issuance of our opinion in this case, the appellant filed a motion stating that it intended to file, or had filed, a notice to invoke the discretionary jurisdiction of the supreme court. Pursuant to Florida Rule of Appellate Procedure 9.310(a), the appellant asks this court to stay the judgment on appeal pending further review.

The judgment on review is in the nature of a monetary judgment. This court has concluded that it does not have the power to withhold issuance of mandate in such a case when the motion to stay is filed more than fifteen days after the issuance of the opinion and no timely motion for rehearing has been filed pursuant to Florida Rule of Appellate Procedure 9.330(a). See Fla. R.App. P. 9.340; State ex rel. Price v. McCord, 380 So.2d 1037 (Fla.1980); see also State v. Miyasato, 805 So.2d 818 (Fla. 2d DCA 2001). Because this court is required to issue its mandate upon the expiration of the fifteen-day period established in rule 9.340, the court has concluded that it does not have authority thereafter to withdraw its mandate in order to stay a judgment except perhaps upon some extraordinary showing not present in this case.

Accordingly, this court denies the motion to stay. In so doing, however, we expressly recognize that the appellant seeks review in the supreme court in good faith and that, if the law allowed, this court would be willing to stay the trial court’s judgment during review in the supreme court upon a showing that the existing bond would remain in effect and would be adequate to secure the obligation.

This order is subject to review in the supreme court pursuant to Florida Rule of Appellate Procedure 9.310(f). To the extent that this court maintains that it lacks jurisdiction to grant this stay, our order may also be subject to challenge by petition for writ of prohibition.

DAVIS and CANADY, JJ., Concur.


author: THREADGILL, EDWARD F„ Senior Judge.

text:
    William E. SPOONER, Appellant, v. Marilyn M. SPOONER, Appellee.
    No. 2D02-576.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.
    Rehearing Denied March 10, 2003.
    William E. Spooner, pro se.
    Cynthia Byrne Hall of Silverio & Hall, P.A., Naples, for Appellee.
   THREADGILL, EDWARD F„ Senior Judge.

William Spooner, pro se (the former husband), appeals an order denying his supplemental petition for modification of alimony. We reverse and remand for a new hearing to give the former husband an opportunity to prove a substantial change of circumstances.

The parties entered into a marital settlement agreement dated December 20, 1999, which was incorporated into the parties’ final judgment of dissolution of marriage dated March 16, 2000. The former husband filed a supplemental petition for modification of alimony on August 20, 2001.

Following a hearing, the trial court found that the petition sought relief based on “fraud, misrepresentation, admissions, and omissions” and was not filed within one year of the final judgment as required by Florida Rule of Civil Procedure 1.540 and Florida Family Law Rule of Procedure 12.540. The court denied the petition as untimely. To the extent that the petition can be construed to seek relief based on fraud or misrepresentation, we agree that the supplemental petition is untimely.

The petition, however, also clearly seeks a downward modification of the former husband’s alimony obligation based on a change of circumstances. This request does not fall within the ambit of rules 1.540 and 12.540. Rather, section 61.14(l)(a), Florida Statutes (1999), which does not contain a time restriction, provides that a party may seek modification of alimony based on a change of circumstances when the parties enter into an agreement or when the court orders payments for alimony. In Rahn v. Rahn, 768 So.2d 1102, 1105 (Fla. 2d DCA 2000), this court stated that “to justify a modification of alimony, the moving party must show: (1) a substantial change in circumstances; (2) that the change was not contemplated at the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary.”

Here, the trial court denied the former husband’s petition as untimely without affording the former husband an opportunity to prove the foregoing elements. Therefore, we reverse the trial court’s denial of the supplemental petition for a modification of alimony. On remand, the trial court shall conduct a hearing in which the former husband has an opportunity to present testimony and evidence to support his claim regarding a substantial change of circumstances that would warrant modification of alimony.

Reversed and remanded.

CASANUEVA and SALCINES, JJ., Concur.

      . Florida Family Law Rule of Procedure 12.540 provides that there is no time limit if the motion is based on fraudulent financial affidavits in marital cases. Here, however, the former husband has not raised the issue of fraudulent financial affidavits.


author: NORTHCUTT, Judge.

text:
    Kevin HALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2356.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2003.
    Rehearing Denied March 5, 2003.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Kevin Hall challenges the order of the circuit court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Hall argues that his sentence as a prison releas-ee reoffender is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed by 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, was unconstitutional since it was enacted in violation of the single subject rule. The effective date of the Prison Releasee Reoffender Punishment Act was May 30, 1997. Jefferson v. State, 777 So.2d 1082 (Fla. 2d DCA 2001). Chapter 99-188 broadened the definition of a prison releasee reoffender to include a defendant who commits a listed offense while serving a prison sentence or is on escape status. See ch. 99-188, § 2, at 1041, Laws of Fla. Since Hall has not alleged that he was affected by the amendments to the prison releasee reoffender statute and that he could not have been sentenced as a prison releasee reoffender pursuant to the statute in existence prior to the passage of chapter 99-188, his claim is facially insufficient. See Bush v. State, 823 So.2d 833 (Fla. 2d DCA 2002) (holding that the validly enacted statutes in effect prior to the enactment of chapter 99-188 control sentencing).

Accordingly, we affirm the order of the circuit court.

ALTENBERND, C.J., and CASANUEVA, J., Concur.

      . Ch. 97-239, Laws of Fla.


text:
    Rexford TWEED, Appellant, v. D. COLEMAN, Captain, James V. Crosby, Jr., Florida Department of Corrections, Appellee.
    No. 1D02-4200.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2003.
    Appellant, pro se.
    Louis A. Vargas, and Joe Belizky, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated November 15, 2002, we dismiss this appeal for lack of jurisdiction. The order on appeal, Order Dismissing Case in Part and Order to Show Cause, dated September 23, 2002, is neither a final appealable order nor an appealable partial final order where an interrelated claim for mandamus is pending below. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99-100 (Fla.1974); Fla. R.App. P. 9.110(k), (m). The appellant’s Motion for Enlargement of Time to File Appeal, filed January 6, 2003, is denied.

DISMISSED.

BARFIELD, POLSTON and HAWKES, JJ., Concur.


author: FULMER, Judge.

text:
    Toby E. COLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3582.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Toby Cole entered a plea of no contest to trafficking in amphetamine, possession of drug paraphernalia, and driving with a suspended license, reserving his right to appeal the denial of his motion to suppress evidence. We affirm the denial of the motion to suppress. See State v. Miller, 565 So.2d 886 (Fla. 2d DCA 1990) (upholding traffic stop based on driving at night with an inoperable tag light); § 316.221(2), Fla. Stat. (1999).

Cole also challenges the sentence imposed for trafficking in amphetamine. The State agrees that remand for resen-tencing is necessary because Cole was sentenced under the same statute found unconstitutional by this court in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

Accordingly, we affirm the convictions, reverse the sentence, and remand for re-sentencing in accordance with the valid laws in effect on the date of the offenses.

Reversed and remanded.

SILBERMAN and COVINGTON, JJ., Concur.


text:
    Charles B. FUSTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4003.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.

      Charles B. Fuston, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Chief Judge.

Charles B. Fuston appeals the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The State has filed a thorough and professional answer brief admitting that the minimum mandatory terms imposed at a second sentencing hearing in January 1994 are illegal and further suggesting that the judgment should be amended to reflect a conviction for burglary with battery rather than burglary of an occupied dwelling. We agree and reverse the postconviction order. On remand, the trial court shall vacate the second set of sentences that contain minimum mandatory terms and should also correct the scrivener’s error in the judgment.

In August 1993, Mr. Fuston entered an open plea to the offenses of burglary with battery, aggravated battery, and resisting arrest with violence. After the preparation of a presentenee investigation, the trial court sentenced Mr. Fuston as a habitual violent felony offender on October 5, 1993. The trial court imposed concurrent sentences of thirty years’ imprisonment for the burglary conviction, ten years’ imprisonment for the aggravated battery conviction, and five years’ imprisonment for the resisting conviction. The trial court considered whether to impose minimum mandatory terms and elected not to impose those terms in this case. Mr. Fuston appealed these sentences, and the State did not. In 1995, this court affirmed the sentences imposed in October 1993. Fuston v. State, 652 So.2d 824 (Fla. 2d DCA1995).

While Mr. Fuston’s case was pending on appeal, the Department of Corrections (the Department) sent a letter to the trial court on December 3, 1993, claiming that the trial court had failed to impose minimum mandatory terms and that it was required to do so. The Department took the position that the trial court had no discretion but to impose ten-year minimum mandatory terms for the first two offenses and a five-year minimum mandatory term for the third offense. This position was not supported by the supreme court’s decisions in Burdick v. State, 594 So.2d 267 (Fla.1992), or State v. Eason, 592 So.2d 676 (Fla.1992), but in fairness to the Department, it was consistent with an opinion from this court. See Sims v. State, 605 So.2d 997 (Fla. 2d DCA 1992), overruled, State v. Hudson, 698 So.2d 831 (Fla.1997). The Department informed the trial court that it was treating Mr. Fuston as if the minimum mandatory terms had been imposed, and informed the trial court that it must submit an amended sentence eliminating the habitual violent felony offender status if it intended to sentence Mr. Fuston without the minimum mandatory terms.

We are aware that the Department regularly sends such letters to the trial courts. The Department often receives confusing sentencing documents, and it undoubtedly has the authority to request clarification of those sentences in order to assure that it does not keep a prisoner longer than the time specified in the sentence. Moreover, the Department has considerable expertise in sentencing and can often alert a trial judge to the existence of an illegal sentence. On the other hand, we know of no power given to the Department to reverse a sentence, or to disobey a sentence, when it is not ambiguous. The Department has no authority to impose a more onerous sentence upon a prisoner than the sentence actually imposed by the trial court. If the State believes a sentence is erroneous, it is obligated to preserve this issue and appeal it to an appropriate appellate court. Otherwise, the sentence imposed by the court stands, and the Department must comply with that sentence.

In this case, when the trial court received the letter from the Department, it held another sentencing hearing in January 1994. Mr. Fuston was present for the hearing and expressed understandable confusion as to how the hearing related to his appeal. The trial court did not amend the sentence to remove the habitual violent felony offender status as suggested by the Department. Instead, it tacked a fifteen-year minimum mandatory term onto the burglary sentence, a ten-year minimum mandatory term onto the aggravated battery sentence, and a five-year minimum mandatory term onto the resisting sentence. Mr. Fuston was not informed that these new sentences were appealable, and it is doubtful that this court’s record was ever supplemented to include the amended sentencing documents.

Mr. Fuston has filed prior postconviction motions. See Fuston v. State, 764 So.2d 779 (Fla. 2d DCA 2000). This is the first time, however, that he has challenged the legality of his minimum mandatory terms. It is now clear that the trial court did have authority in 1993 to use discretion when deciding to impose a minimum mandatory term. See Hudson, 698 So.2d 831. We do not, however, declare that Mr. Fusion’s 1994 sentences are facially illegal as a result of the ruling in Hudson.

The supreme court recently held that a trial court violates double jeopardy when it brings a defendant back from prison to vacate a sentence and impose a more onerous sentence. See Ashley v. State, 28 Fla. Law Weekly S18, 2003 WL 60564, — So.2d-(Fla. Jan. 9, 2003). Under the rule announced in Ashley, the State concedes error concerning the minimum mandatory terms that were added to Mr. Fusion's sentences in January 1994.

Accordingly, on remand, the trial court shall vacate the January 1994 sentences and reinstate the October 1993 sentences, which do not contain minimum mandatory terms and have already been affirmed by this court. We note that the written judgments have never accurately reflected the convictions announced in open court. Mr. Fuston was convicted of burglary with a battery, and the written judgments have reflected burglary of an occupied dwelling. This scrivener’s error, should be corrected on remand.

Reversed and remand.

CASANUEVA and STRINGER, JJ., concur.

      .We compliment Assistant Attorney General Ronald Napolitano for his work in this case. He is often called upon by the Attorney General to sort out confusing postconviction appeals where it appears that the defendant's appeal may have merit. This is a difficult task and he performs it well. In this case, he reviewed the old records and supplied additional records to this court to demonstrate the precise nature of the error. As an officer of the court, an assistant attorney general is occasionally called upon to concede error. Mr. Napolitano's candor and professionalism^ in this case have assisted this court.

      . See § 810.02(2)(a), Fla. Stat. (1993). This offense is punishable as a first-degree felony with a term of imprisonment not exceeding life.

      . See § 784.045, Fla. Stat. (1993). This offense is punishable as a second-degree felony.

      . See § 843.01, Fla. Stat. (1993). This offense is punishable as a third-degree felony.

      . We are not entirely convinced that the trial court had concurrent jurisdiction to amend the 1993 sentences in order to impose more stringent sentences when those sentences were pending on appeal in this court. See Gartrell v. State, 626 So.2d 1364 (Fla.1993). Although we do not reach the issue today, it is arguable that the 1994 sentences were simply void from their inception as acts beyond the trial court's jurisdiction.


text:
    Tiwayne HEARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1694.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2003.
    James B. Gibson, Public Defender, and Barbara C. Davis, 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 McArthur v. State, 801 So.2d 1037 (Fla. 5th DCA 2001); Romero v. State, 435 So.2d 318 (Fla. 4th DCA 1983), rev. denied, 447 So.2d 888 (Fla.1984); Wilson v. State, 776 So.2d 347 (Fla. 5th DCA 2001).

SHARP, W., SAWAYA and ORFINGER, JJ., concur.


text:
    Orentha Desean RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5621.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

      Orentha Desean Riley, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm the revocation of Orentha Riley’s probation but remand for correction of the order of revocation. The order of revocation states that Riley admitted to violating his probation. In fact, the trial court held an evidentiary hearing and revoked Riley’s probation over his objections. Therefore, on remand, the trial court must enter a corrected written order reflecting that the trial court revoked Riley’s probation.

Affirmed, but remanded for correction of the order of revocation.

WHATLEY, CASANUEVA, and STRINGER, JJ„ Concur.


author: STRINGER, Judge.

text:
    N.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5629.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

We affirm N.S.’s convictions and sentences for burglary of a structure and petit theft; however, we remand for correction of the disposition order.

The State filed a petition for delinquency charging N.S. with burglary of a dwelling and grand theft. As part of a plea agreement with the State, N.S. pleaded no contest to reduced charges of burglary of a structure and petit theft. The trial court accepted N.S.’s plea to the reduced charges; however, the disposition order incorrectly states that N.S. pleaded no contest to the original charges. On remand, the trial court must enter a corrected disposition order that accurately reflects the crimes to which N.S. pleaded.

Affirmed but remanded for correction of the disposition order.

WHATLEY and CASANUEVA, JJ„ Concur.


author: WHATLEY, Judge.

text:
    William A. CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5710.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.

      James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    William A. Cunningham, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo-Cruz Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

We affirm Cunningham’s convictions and sentences for attempted capital sexual battery and lewd and lascivious assault. We note, however, that Cunningham filed a pro se motion to withdraw his plea in the trial court during the thirty-day period allowed by Florida Rule of Criminal Procedure 3.170(0 but after he had filed his notice of appeal. Because the notice of appeal had been filed, the trial court was without jurisdiction to consider Cunningham’s motion at that point. While we express no opinion on the merits of Cunningham’s motion, on remand, the trial court must consider and rule on it.

Affirmed, but remanded for further proceedings.

CASANUEVA and STRINGER, JJ., Concur.

      . Cunningham was no longer represented by counsel when he filed his pro se motion to withdraw his plea.


text:
    Christopher M. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2120.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Christopher M. Williams appeals both the summary denial of three of his four claims for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and the new sentences the trial court imposed when it granted relief on the fourth claim and resentenced him pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). We affirm on these issues. We remand, however, for the entry of an amended judgment and sentence as it relates to count three.

After the entry of Mr. Williams’ original judgments and sentences, but prior to Mr. Williams’ resentencing, the trial court noted that count three was properly a conviction for aggravated assault, a third-degree felony, and not aggravated assault with a mask, a second-degree felony. The trial court issued an order on November 2, 2001, requiring the clerk to correct the initial judgment in this regard. After Mr. Williams was resentenced, however, the trial court inadvertently again designated count three as a second-degree felony and imposed a sentence of fifteen years’ imprisonment for this count. We remand with directions for the trial court to amend the judgment to properly designate count three as a third-degree felony and reduce the sentence for that count to the statutory maximum of five years’ imprisonment.

Affirmed in part, reversed in part, and remanded with instructions.

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


author: SALCINES, Judge.

text:
    James McCOY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4887.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

James McCoy appeals the sentences imposed upon remand for two separate burglaries. We affirm the sentence imposed for the burglary in count two without further comment and reverse the sentence imposed for count one.

McCoy was originally charged in count one with armed burglary of a dwelling. McCoy was convicted and sentenced to life for this offense. McCoy appealed the conviction. This court determined that the evidence did not support the conviction and directed the trial court to enter judgment for the lesser offense of burglary of a dwelling and to resentence McCoy. McCoy v. State, 789 So.2d 489 (Fla. 2d DCA 2001). On remand, the trial court sentenced McCoy to thirty years’ imprisonment as a habitual felony offender and as a prison releasee reoffender for the count one burglary.

McCoy argues that the trial court erred when it imposed a prison releasee reoffen-der sentence for the burglary of an unoccupied dwelling. See Dudley v. State, 802 So.2d 461 (Fla. 2d DCA 2001); Parker v. State, 799 So.2d 282 (Fla. 2d DCA 2001). McCoy was not charged with burglary of an occupied dwelling, and the jury did not make a finding that the dwelling was occupied at the time of the burglary. The State concedes that McCoy could not be sentenced as a prison releasee reoffender under these circumstances and that he must be resentenced on count one to omit this designation.

Accordingly, the sentence of thirty years’ imprisonment as a habitual offender and as a prison releasee reoffender imposed for count one is reversed. On remand, the trial court shall impose a sentence, for count one, of thirty years’ imprisonment as a habitual offender only.

Affirmed in part, reversed in part, and remanded.

FULMER and STRINGER, JJ., Concur.


author: COVINGTON, Judge.

text:
    Charles RENTSCHLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4325.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.
   COVINGTON, Judge.

Charles Rentschler appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse on one claim that the trial court failed to address. On all other claims we affirm the trial court’s denial of the postconviction motion.

A jury found Rentschler guilty of DUI manslaughter. He received a prison sentence of fourteen years. Rentschler alleges that he rejected a plea offer of three to five years because trial counsel failed to inform him of the possible sentences he could receive if he lost at trial. Rentschler says that he would not have rejected the plea offer if he had known that he could be sentenced to fourteen years in prison. Rentschler has made a facially sufficient claim. See Aebi v. State, 28 Fla. L. Weekly D412,-So.2d-, 2003 WL 255550 (Fla. 2d DCA Feb.7, 2003). The trial court’s order did not address this claim, and nothing in the limited record before this court refutes the claim. We therefore reverse and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

FULMER and KELLY, JJ., Concur.


text:
    Stephen Cory MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4212.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Stephen Cory Miller appeals from the order denying his motion to withdraw plea. Without addressing the merits of the motion itself, we reverse the order denying the motion because Miller was not afforded the conflict-free counsel to which he was entitled at the hearing on the motion.

This court acknowledged in Harris v. State, 818 So.2d 567, 568 (Fla. 2d DCA 2002), “that a motion filed pursuant to Florida Rule of Criminal Procedure 3.170(i) has been treated as a critical stage of proceedings in the trial court for which the defendant is entitled to counsel.” We agree with the holdings of our sister courts that a defendant is entitled to conflict-free counsel to advise and assist with motions filed pursuant to rule 3.170(i). See Lester v. State, 820 So.2d 1078 (Fla. 1st DCA 2002); Cadet v. State, 795 So.2d 228 (Fla. 4th DCA 2001); Williams v. State, 793 So.2d 1112 (Fla. 4th DCA 2001); Rodgers v. State, 765 So.2d 195 (Fla. 1st DCA 2000).

The order denying the motion to withdraw plea is reversed. On remand the trial court shall appoint conflict-free counsel to represent Miller at a hearing on the motion.

Reversed and remanded with directions.

FULMER and STRINGER, JJ., Concur.


text:
    Martin Luther McCRAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2801.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.

      Martin Luther McCray, in proper person.
    Charlie Crist, Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   On Rehearing Denied

PER CURIAM.

Defendant-appellant Martin Luther McCray argues that under the oral pronouncement of his sentence, the counts on which he was sentenced as a habitual violent felony offender (“HVFO”) should be fifteen years, not life with a mandatory minimum sentence of fifteen years. The defendant maintains that he is entitled to relief under Ashley v. State, 28 Fla. L. Weekly S 18, 2003 WL 60564 (Fla. Jan. 9, 2003).

At the sentencing hearing, the State asked that the defendant be adjudicated an HVFO and sentenced to life imprisonment with a mandatory minimum sentence of fifteen years. The defense argued that the defendant should be sentenced to fifteen years as an ordinary habitual offender (“HO”).

In pronouncing sentence the court said:

The Court thinks this was a particularly violent and heinous crime. I’m going to sentence Mr. McCray as a habitual violent felony offender, provided with a 15 year minimum mandatory on each count that can be so sentenced on each count, one with the other.

TR. April 9,1991, at 19.

It is obvious when the entire transcript is read in context, that there is a transcription error in the just quoted paragraph. Instead of “provided with” it is clear that the judge actually said “life with.” We know that because the contemporaneous handwritten notes on the guidelines score-sheet, signed by the sentencing judge, states “[defendant] sentenced as Habitual Violent Offender to Life W7 15 yr. Min. Mand. State Prison.” The Ashley decision does not apply here. The trial court was entirely correct in so interpreting the sentencing transcript and denying postconviction relief.

Rehearing denied.


author: GODERICH, Judge.

text:
    Leida TABARES, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS etc., et al., Appellees.
    No. 3D02-1499.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.

      Leida Tabares, in proper person.
    John D. Maher (Tallahassee), for appel-lee Florida Unemployment Appeals Commission.
    Before JORGENSON, LEVY and GODERICH, JJ.
   GODERICH, Judge.

The claimant, Leida Tabares, appeals from an order of the Florida Unemployment Appeals Commission [UAC] upholding the appeals referee’s denial of unemployment compensation benefits. We reverse.

The claimant worked as a deli associate at a Winn Dixie Store for approximately five years. As a result of an incident between the claimant, the deli supervisor, and the deli manager, the co-manager of the store called the three employees into his office. During the meeting, the claimant started to raise her voice and told the co-manager that he “was trying to get her.” The co-manager asked her to not raise her voice, but the claimant continued to do so. The claimant was then discharged by the co-manager.

The claims examiner found that the claimant was eligible for unemployment benefits. Thereafter, the appeals referee reversed finding that the claimant was discharged for misconduct connected with work because she began to raise her voice and speak loudly with the co-manager and she continued to talk to the co-manager in the same manner after she was told to lower her voice. The UAC affirmed the decision of the appeals referee. This appeal followed.

The claimant contends that her actions do not constitute misconduct connected with work, and that she is, therefore, entitled to unemployment benefits. We agree.

“Misconduct” is defined as “[c]on-duct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right.to expect of his or her employee.” § 443.036(29)(a), Fla. Stat. (2001). “In determining whether misconduct has occurred which would disqualify a claimant from receiving unemployment benefits, the statute should be liberally construed in favor of the claimant.” Donnell v. University Community Hosp., 705 So.2d 1031, 1032 (Fla. 2d DCA 1998); see § 443.031, Fla. Stat. (2001); Jorge v. Florida Unemployment Appeals Comm’n, 765 So.2d 889, 890 (Fla. 3d DCA 2000).

This case is factually similar to Cullen v. Neighborly Senior Servs., Inc., 775 So.2d 392, 393 (Fla. 2d DCA 2000), wherein the court stated that “a single incident of loss of self-control or poor judgment does not constitute misconduct.” In Cullen, the claimant raised his voice during a meeting between the claimant and his supervisor. The meeting took place in the supervisor’s private office in front of two other employees. Moreover, the claimant left the office while the supervisor was still speaking.

In the present case, the claimant raised her voice during a meeting which took place between the claimant, the co-manager, and two other employees, in the co-manager’s private office. Therefore, as in Cullen, although the employer was justified in discharging the claimant, we find that the claimant’s “single incident of loss of self-control” did not constitute misconduct connected with work. As such, we reverse the denial of unemployment compensation benefits.

Reversed.