author: LYONS, Justice. MOORE, Chief Justice

text:
    Ex parte Taurus CARROLL. (In re Taurus Carroll v. State of Alabama).
    1010546.
    Supreme Court of Alabama.
    July 26, 2002.
    As Modified on Denial of Rehearing Sept. 20, 2002.

      Joe W. Morgan III, Birmingham, for petitioner.
    William H. Pryor, Jr., atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for respondent.
   LYONS, Justice.

Taurus Carroll was convicted in December 1997 of intentional murder made capital because the murder occurred during the course of a robbery in the first degree. See § 13A-5-40(a)(2), Ala.Code 1975. Carroll and Mack Dailey robbed a dry-cleaning and coin-operated-laundry business in Birmingham on April 9, 1995. During the robbery, Betty Long, one of the owners of the business, was shot and later died as a result of the gunshot wound. Carroll was 17 years old at the time of the robbery-murder. The jury, by a vote of 10-2, recommended that Carroll be sentenced to life imprisonment without the possibility of parole, but the trial court overrode the jury’s recommendation and sentenced Carroll to death.

The Court of Criminal Appeals affirmed Carroll’s conviction, but remanded the case for the trial court to resentence Carroll because in sentencing Carroll the trial court had improperly considered Carroll’s prior youthful-offender adjudications. Carroll v. State, 852 So.2d 801 (Ala.Crim.App.1999) (“Carroll I”). On remand, the trial court again sentenced Carroll to death. The Court of Criminal Appeals affirmed that sentence. Carroll v. State, 852 So.2d at 818 (Ala.Crim.App.1999) (“Carroll II ”). This Court granted certio-rari review, and we affirmed the Court of Criminal Appeals’ judgment as to Carroll’s conviction, but reversed its judgment as to Carroll’s sentence. Ex parte Carroll, 852 So.2d 821 (Ala.2001) (“Carroll III”). We remanded the case to allow the trial court the opportunity to “state specific reasons for giving the jury’s recommendation the consideration he gave it,” 852 So.2d at 828, pursuant to the requirement this Court announced in Ex parte Taylor, 808 So.2d 1215, 1219 (Ala.2001). In its order on return to remand in August 2001, the trial court submitted an amended sentencing order; in that order it weighed the aggravating circumstance and the mitigating circumstances in this case, and again overrode the jury’s recommendation and sentenced Carroll to death. The Court of Criminal Appeals affirmed that sentence, concluding that the trial court’s reasons for overriding the jury’s recommendation were sufficient to comply with Ex parte Taylor. Carroll v. State, 852 So.2d 830 (Ala.Crim.App.2001) (“Carroll IV”). This Court granted certiorari review; thus, the case is now before us for the second time. For a detailed account of the facts of this case and its procedural history, see Carroll I and Carroll III.

In its sentencing order on the first remand, the trial court found only one aggravating circumstance in this case, that the murder took place during a robbery. The court found the following four mitigating circumstances: “(1) no significant prior criminal history; (2) [the] age of the defendant; (3) the favorable testimony of the family of the defendant; and (4) the jury’s recommendation of life imprisonment without parole.” Carroll III, 852 So.2d at 825-26. Commenting on the Court of Criminal Appeals’ remand of the case in Carroll I on the basis that the trial court had improperly considered Carroll’s youthful-offender adjudications, we stated:

“[ T]he trial judge in this case expressly found that Carroll ‘[had] no significant history of prior criminal activity’ and expressly acknowledged that he could not consider, ‘to negate this statutory mitigating circumstance,’ the fact that, just four months before the robbery-murder, Carroll had been released from the penitentiary, “where [he] was serving time on four youthful-offender convictions involving alleged burglaries while armed.’ ”

Carroll III, 852 So.2d at 826 (quoting the trial court’s order). In that opinion, we concluded that nothing in the record indicated that the trial court had allowed Carroll’s adjudications as a youthful offender to negate the statutory mitigating circumstance of no significant history of prior criminal activity. We remanded the case only to allow the trial court to have an opportunity to expand the sentencing order to specifically explain the consideration it gave the jury’s recommendation in compliance with Ex parte Taylor.

In its revised sentencing order on the second remand, the trial court explained its override of the jury’s recommendation of a sentence of life imprisonment without the possibility of parole as follows:

“ ‘The jury did not have before [it] the presentence report, background information and history of the defendant, his family, education and work history. The jury was not aware of the fact that the defendant had served a period of incarceration and had just been released for a very short time when he obtained a weapon and committed this intentional murder during a robbery. The jury did not view and was not privy to the expression of the pain of the victim’s family expressed at the sentencing hearing before the Court.
“‘Although this Court always gives, and did in this case give, great weight and consideration to a jury’s recommendation as to punishment, considering the above, the Court found it appropriate to overrule the jury’s recommendation of life without parole.’ ”

Carroll IV, 852 So.2d at 832 (quoting the trial court’s order). We find two aspects of the trial court’s order troubling.

First, it is clear from the foregoing excerpt from the trial court’s order that the trial court considered Carroll’s incarceration for youthful-offender adjudications in negating the mitigating circumstance of no significant criminal history. We specifically stated in Ex parte Burgess, 811 So.2d 617 (Ala.2000), that a trial court is not allowed to do so.

“[ A] trial court may consider a defendant’s juvenile adjudications to be a relevant consideration in deciding what weight to assign to the statutory mitigating circumstances of a defendant’s lack of a significant prior criminal history and a defendant’s age at the time of the offense.... In other words, during the sentencing process in a capital case, the trial court may use a defendant’s juvenile record to diminish the weight to be accorded the mitigating circumstance of that defendant’s lack of a significant history of prior criminal activity, as well as the mitigating circumstance of that defendant’s age at the time he or she committed the capital offense, but the trial court may not use the juvenile record as the basis for giving little or no weight to such mitigating circumstances.”

811 So.2d at 624 (emphasis added). Because Carroll’s incarceration shortly before the murder in this case was the result of youthful-offender adjudications, the trial court’s second order on remand, justifying its use of Carroll’s juvenile record as the basis for giving little or no weight to the mitigating circumstance that Carroll had no significant history of prior criminal activity, conflicts with our observation in Carroll III and with our direction in Ex parte Burgess.

Second, in light of the wish of the victim’s family that Carroll be sentenced to life imprisonment without parole rather than sentenced to death, evidence that was admitted without objection, we find it hard to reconcile the trial court’s reliance upon the “pain of the victim’s family” as one of its reasons for overriding the jury’s recommendation.

Although the trial court stated that it “always gives, and did in this case give, great weight and consideration to a jury’s recommendation as to punishment,” under the circumstances here presented, where other aspects of the trial court’s order on remand are problematic, it appears that it gave insufficient weight to the jury’s recommendation that Carroll be sentenced to life imprisonment without parole. In this case, the recommendation was entitled to considerable weight.

We take this opportunity to further explain the effect of a jury’s recommendation of life imprisonment without the possibility of parole. Such a recommendation is to be treated as a mitigating circumstance. The weight to be given that mitigating circumstance should depend upon the number of jurors recommending a sentence of life imprisonment without parole, and also upon the strength of the factual basis for such a recommendation in the form of information known to the jury, such as conflicting evidence concerning the identity of the “triggerman” or a recommendation of leniency by the victim’s family; the jury’s recommendation may be overridden based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance.

Based on an appellate court’s duty to independently weigh the aggravating and mitigating circumstances in a capital case, and treating the jury’s recommendation as a mitigating circumstance in this case, we conclude that the trial court’s override in this case of the jury’s recommended sentence of life imprisonment without parole and that court’s subsequent sentence of death were improper under the circumstances presented here. See § 13A-5-53(a) and (b), Ala.Code 1975. Here we have overwhelming support of a sentence of life imprisonment without the possibility of parole, as evidenced by the jury’s vote of 10-2 for such a sentence. Furthermore, Justice Houston in a special writing in Carroll III ably marshaled all of the factors that make the sentence of death in this case excessive and disproportionate.

“Given the jury’s recommendation of life imprisonment without parole; the recommendation of the victim’s family that the defendant be sentenced to life imprisonment without parole; the fact that the defendant was 17 years old when he committed the crime; and the circumstances of the crime (particularly that the defendant made no attempt to kill the witnesses to the crime), ... the sentence of death is excessive and disproportionate.”

852 So.2d at 828 (Houston, J., concurring in part and dissenting in part). Because of Carroll’s age at the time of the offense, his lack of a significant criminal history, and the recommendation of the victim’s family that he be sentenced to life imprisonment without parole, the jury’s 10-2 recommendation that he not be sentenced to death tips the scales in favor of following the jury’s recommendation. We therefore reverse the judgment of the Court of Criminal Appeals as to Carroll’s sentence and remand the case for that court to instruct the trial court to resentence Carroll following the jury’s recommendation of life imprisonment without the possibility of parole.

REVERSED AND REMANDED WITH DIRECTIONS.

HOUSTON, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., and BROWN and STUART, JJ., concur in the result.

MOORE, Chief Justice

(concurring in the result).

In light of the United States Supreme Court’s recent decision in Ring v. Arizona, 536 U.S. 2428, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I concur in the result.

      . This Court decided to reverse the death sentence in this case before the United States Supreme Court released its opinion in Ring v. Arizona. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), on June 24, 2002. Because we are remanding this case for the imposition of a sentence of life imprisonment without the possibility of parole, issues as to the continuing validity of the conclusions here stated regarding the effect of a jury's recommendation of life imprisonment without the possibility of parole and the authority of the trial court to override such a sentence and the scope of the appellate court's review must await another day.


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Taurus CARROLL v. STATE of Alabama.
    CR-97-1019.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.

      Joe W. Morgan III, Birmingham; and Joe W. Morgan, Jr., Birmingham, for appellant (withdrew on 10/19/2000).
    William H. Pryor, Jr., atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

WISE, Judge.

Taurus Carroll was convicted of murder made capital because it was committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975. The circuit court overrode the jury’s recommendation that Carroll be sentenced to life imprisonment without the possibility of parole and sentenced him to death. On August 27, 1999, this Court affirmed Carroll’s conviction. Carroll v. State, 852 So.2d 801 (Ala.Crim.App.1999). However, we remanded Carroll’s case for the circuit court to reevaluate Carroll’s sentence in light of our holding that the circuit court “erred in using Carroll’s prior youthful offender adjudications to negate the existence of the statutory mitigating circumstance of ‘no significant history of prior criminal activity.’ ” 852 So.2d at 818. The circuit court submitted an amended sentencing order on September 29, 1999. The order indicated that the court had reweighed the aggravating circumstances and the mitigating circumstances and again overrode the jury’s recommendation of life imprisonment without the possibility of parole and again sentenced Carroll to death. This Court affirmed Carroll’s death sentence, determining that the circuit court’s finding was supported by the record and that imposition of the death penalty was appropriate. Carroll v. State, 852 So.2d at 818 (Ala.Crim.App.1999) (opinion on return to remand). The Alabama Supreme Court affirmed Carroll’s capital-murder conviction, but it remanded the case to this Court, holding that the circuit court had failed to state specific reasons for failing to accept the jury’s recommendation of life imprisonment without the possibility of parole, as mandated by Ex parte Taylor, 808 So.2d 1215 (Ala.2001). Ex parte Carroll, 852 So.2d 821 (Ala.2001).

On August 13, 2001, the circuit court submitted another amended sentencing order to this Court, in which it reweighed the aggravating circumstances and the mitigating circumstances; it again overrode the jury’s recommendation and sentenced Carroll to death. We concluded that the circuit court’s reasons for overriding the jury’s recommendation were sufficient to comply with the dictates of Ex parte Taylor, supra, and we affirmed the circuit court’s judgment sentencing Carroll to death.

Carroll again petitioned the Alabama Supreme Court for certiorari review. That court granted Carroll’s petition, and on July 26, 2002, reversed our judgment upholding Carroll’s death sentence and remanded this case to us with instructions that we instruct the circuit court to resen-tence Carroll in accordance with the jury’s recommendation to life imprisonment without the possibility of parole. Ex parte Carroll, 852 So.2d 833, 837 (Ala.2002). On September 20, 2002, the Supreme Court modified its opinion of July 26, 2002, and denied the State’s application for rehearing. A certificate of judgment was issued by the Supreme Court on October 10, 2002, and the case was remanded to this Court.

In accordance with the judgment of the Supreme Court in Ex parte Carroll, we again remand this case for the circuit court to resentence Carroll to life imprisonment without the possibility of parole, as the jury originally recommended following Carroll’s 1997 trial.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.

      . We note that on September 27, 2002, the circuit court entered an order purporting to resentence Carroll in accordance with the Supreme Court's decision. However, the circuit court lacked jurisdiction to resentence Carroll at that time because jurisdiction over the case remained with the Supreme Court until October 10, 2002, the date it issued the certificate of judgment in this case. Moreover, the Supreme Court remanded the case to this Court for further proceedings, rather than directly to the circuit court. " 'The general rule is that jurisdiction of one case cannot be in two courts at the same time.' " Rogers v. State, 782 So.2d 847, 848 (Ala.Crim.App.2000) (quoting Ex parte Hargett, 772 So.2d 481, 483 (Ala.Crim.App.1999)). Because the circuit court lacked jurisdiction to resentence Carroll on September 27, 2002, its judgment purporting to do so is null and void. See Gordon v. State, 710 So.2d 943, 945 (Ala.Crim.App.1998) (quoting McKinney v. State, 549 So.2d 166, 168 (Ala.Crim.App.1989)).


author: COBB, Judge.

text:
    Geramie Raquell HART v. STATE of Alabama.
    CR-00-2507.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.
    Rehearing Denied Jan. 24, 2003.

      Mariellen Morrison, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   COBB, Judge.

Sixteen-year-old Geramie Raquell Hart and his girlfriend and codefendant, Ashley Jones, planned and executed a grizzly crime that involved the murders of two members of Ashley’s family and the attempted murders of two additional members. Following a jury trial, Hart was convicted of two counts of capital murder, § 13A-5-40(a)(2) and (a)(10), Ala.Code 1975, and two counts of attempted murder, §§ 13A-4-2 and 13A-6-2, Ala.Code 1975. He was sentenced to life imprisonment without parole for each capital-conviction, and he was sentenced to life imprisonment for each attempted murder conviction. All sentences were ordered to run consecutively. This appeal follows.

Although Hart does not challenge the sufficiency or weight of the evidence, a brief recitation of the facts adduced at trial is helpful to an understanding of the case. Geramie Hart, who celebrated his 16th birthday a few weeks before these crimes, and his 14-year-old girlfriend, Ashley Jones, apparently planned to kill members of Ashley’s family because her family did not approve of Ashley’s relationship with Hart. Ashley and her 10-year-old sister, Mary Jones, lived with their grandparents, 76-year-old Deroy Nalls and 75-year-old Mary Nalls. One of Deroy and Mary’s daughters and Ashley’s aunt, 80-year-old Millie Nalls, also lived in the house.

Late in the evening on August 29, 1999, Deroy was in the den watching television. His wife, daughter, and younger granddaughter were asleep in their rooms. Ashley let Hart into the house; he was armed with Deroy’s .38 caliber pistol, which Ashley had given him earlier. Ashley and Hart entered the den, and Hart shot Deroy twice in the face. Deroy did not die immediately; he stumbled toward the kitchen. Ashley and Hart then entered Millie’s bedroom and shot her three times. She survived the gunshots, and they then hit her with portable heaters, stabbed her in the chest, and set her room on fire. The pair next entered Mary Nails’s bedroom and fired the last bullet from the gun into her shoulder. Hart was wearing a bandana over his face, but Ashley’s grandmother recognized him. Hart also identified himself to Mrs. Nalls.

Ashley and Hart returned to discover that Deroy was still alive. Hart hit him with various objects and stabbed him repeatedly, leaving the knife in his back. Ashley poured charcoal lighter fluid on her grandfather and set him on fire. Ashley’s sister, Mary, woke up and Ashley led her into the kitchen area. She saw her grandfather on the floor of the den; he was on fire but still alive, Mary said. Hart forced Deroy Nalls to disclose where he kept his money, and after Mr. Nalls complied, Hart stabbed him in the throat. Mrs. Nalls who survived after being stabbed, could not remember whether Hart or Ashley had stabbed her. Ashley poured the charcoal fluid on Mrs. Nalls, then they set her on fire. Ashley and Hart watched Mrs. Nalls burn, and Hart urged Ashley to pour more of the flammable liquid on her. Mary Jones attempted to leave the kitchen, but Ashley grabbed her sister and began hitting her. Hart pointed the gun at the 10-year-old and said, “This is how you are going to die.” (R. 686.) Ashley said, “No, let me do it,” and stabbed her sister 14 times. Hart and Ashley piled sheets, towels, and paper on the floor and set the pile on fire.

Hart and Ashley took $300 that was hidden beneath Deroy and Mary Nails’s mattress and drove away in the Nallses’ vehicle. Mary Jones, who had pretended to be dead, helped her grandmother out of the house and contacted others for assistance.

The coroner determined that Deroy and Millie Nalls died from the stab and gunshot wounds they sustained. He testified that both victims suffered greatly from their wounds before they died. Mary Jones was treated for the numerous stab wounds Ashley inflicted. Mary Nalls, who sustained burns to 35% of her body, was taken to a burn unit, where she was also treated for the gunshot and stab wounds she suffered. She was hospitalized for weeks, received skin grafts, and underwent extensive rehabilitative therapy.

Hart and Ashley Jones were arrested the next morning in a hotel room. The Nallses’ vehicle was in the parking lot of the hotel. Hart and Jones gave voluntary statements describing their involvement in the murders and attempted murders of Jones’s family members.

I.

Hart first argues that the trial court erred when it denied his second motion for a continuance. In his motion to continue, defense counsel argued that he was not prepared for Hart’s trial because he had been involved in another capital-murder trial the week before. This Court has previously discussed review of a trial court’s denial of a request for a continuance:

“ ‘The trial court has broad discretion in granting a continuance when the basis for the motion is that counsel has not had sufficient time to prepare or to develop his defense. Godfrey v. State, 383 So.2d 575, 577 (Ala.Cr.App.), cert. denied, 383 So.2d 579 (Ala.), cert. denied, 449 U.S. 903, 101 S.Ct. 276, 66 L.Ed.2d 134 (1980), citing Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968). “A motion for a continuance due to a lack of time for adequate preparation is a matter entirely and exclusively within the sound discretion of the trial court and its ruling will not be reversed on appeal absent a ... showing of abuse.” Reynolds v. State, 539 So.2d 428, 429 (Ala.Cr.App.1988), cert. denied, 539 So.2d 428 (Ala.1989). Moreover, “the reversal of a conviction because of the refusal of the trial judge to grant a continuance requires ‘a positive demonstration of abuse of judicial discretion.’ Clayton v. State, 45 Ala.App. 127, 129, 226 So.2d 671, 672 (1969).” Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr.App.), writ denied, 372 So.2d 44 (Ala.1979) (emphasis added).’
“Loggins v. State, 771 So.2d 1070, 1084. (Ala.Crim.App.1999).”

Smith v. State, 797 So.2d 503, 523 (Ala.Crim.App.2000).

The record indicates that Emory Anthony was appointed on October 4,1999, to represent Hart. Hart was indicted on January 14, 2000, and trial was set for October 30, 2000. Defense counsel filed a motion to continue on October 24, 2000. The motion was granted, and trial was reset for June 4, 2001. On May 31, 2001, Anthony filed a “Motion to Continue or in the Alternative Motion to Withdraw,” alleging that he had been involved in another capital-murder trial since May 21, 2001, and that he would not be physically or mentally prepared to begin Hart’s capital defense in four days. The trial court denied the motion on the same day.

On the morning of trial, an extensive motions hearing was held. Anthony and his cocounsel were present and both actively participated in the hearing, discussing both legal issues and facts relevant to the case. We observe, furthermore, that defense counsel had filed numerous extensive motions and requests before trial, indicating their regular involvement in and preparation for Hart’s trial defense. Anthony participated in voir dire questioning, presented the opening and closing arguments, and cross-examined many of the State’s witnesses. All indications are that Anthony and his cocounsel represented Hart’s interests zealously throughout trial.

Nothing in the record warrants a determination by this Court that the trial court abused its broad discretion when it denied defense counsel’s request for a continuance, which was filed just days prior to trial. There being no abuse of judicial discretion, Hart is not entitled to any relief on this claim.

II.

Hart next claims that the trial court erred when it refused to allow him to make a proffer of evidence. Hart apparently believed it was necessary to make a proffer because, he. claims, the trial court unfairly limited his cross-examination of Sgt. Jerry Frazier. Specifically, Hart attempted to ask Sgt. Frazier about a statement made by another officer (Sgt. Had-der) in a preliminary hearing in this case, and the trial court refused to allow that fine of questioning. When Hart later attempted to place the preliminary hearing testimony of Sgt. Hadder into the record to preserve the issue for appeal, the trial court refused to allow Hart to put that portion of the transcript into the record. No error occurred with regard to the trial court’s rulings.

“The general rule is that if a trial court excludes evidence offered by a defendant, it is the defendant’s responsibility to make an offer of proof to preserve for appellate review any error in the trial court’s refusal to accept the evidence. However, if the substance of the evidence sought to be admitted is apparent from the context within which the questions were asked, no offer of proof is necessary.”

Myers v. State, 601 So.2d 1150, 1152 (Ala.Crim.App.1992).

It is clear from the record that, during the hearing on Hart’s motion to suppress his statement, Hart sought to question Sgt. Frazier about the testimony offered by Sgt. Hadder at Hart’s preliminary hearing. It is also clear that Sgt. Hadder testified at the previous hearing that Hart was not wearing a shirt while he was detained. Because the substance of the evidence Hart sought to admit was apparent, no offer of proof was necessary. Therefore, the trial court did not err when it denied Hart’s request to make an offer of proof regarding Sgt. Hadder’s testimony from the earlier proceeding.

Moreover, we find no error in the trial court’s resolution of the underlying issue; the trial court properly precluded Hart from questioning Sgt. Frazier about testimony offered by Sgt. Hadder at the preliminary hearing.

“It is well settled that ‘[a] party is entitled to a thorough and sifting cross-examination of the witnesses against him,’ McMillian v. State, 594 So.2d 1253, 1261 (Ala.Crim.App.1991), remanded on other grounds, 594 So.2d 1288 (Ala.1992), opinion after remand, 616 So.2d 933 (Ala.Crim.App.1993), citing Perry v. Brakefield, 534 So.2d 602 (Ala.1988), and § 12-21-137, Ala.Code 1975, and that a party should be given ‘wide latitude on cross-examination to test a witness’s partiality, bias, intent, credibility, or prejudice, or to impeach, illustrate, or test the accuracy of the witness’s testimony or recollection as well as the extent of his knowledge.’ Williams v. State, 710 So.2d 1276, 1327 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998). It is equally well established, however, ‘that the latitude and extent of cross-examination are matters which of necessity rest largely within the sound discretion of the trial court, and rulings with respect thereto will not be revised on appeal except in extreme cases of abuse.’ Long v. State, 621 So.2d 383, 388 (Ala.Crim.App.1993), cert. denied, 510 U.S. 932, 114 S.Ct. 345, 126 L.Ed.2d 310 (1993), quoting Beavers v. State, 565 So.2d 688, 689 (Ala.Crim.App.1990).”

Reeves v. State, 807 So.2d 18, 38 (Ala.Crim.App.2001).

During direct examination at the suppression hearing, Sgt. Frazier, who was present when Hart gave his statement, testified that Hart was wearing an undershirt and shorts when he was detained. On cross-examination, defense counsel noted that Sgt. Hadder had testified at Hart’s preliminary hearing; defense counsel stated, “I am going to let you look at this, to refresh your memory.” (R. 1085.) The prosecutor objected because defense counsel attempted to show Sgt. Hadder’s testimony to Sgt. Frazier to refresh his recollection, and the trial court sustained the objection. Defense counsel continued his cross-examination:

“Q: So, if Detective Hadder said that he didn’t have a shirt on, she would be incorrect. If she said that, at the preliminary hearing, that Mr. Hart didn’t have a shirt on, she would be incorrect.
“A: I said to the best of my knowledge, he had on an undershirt. Now if Sergeant Hadder recalls he didn’t have on an undershirt, that’s — that’s her.
“Q: Alright. But we know he didn’t have on shoes. We know he had on socks. Well, no socks, short pants, and — and you don’t know whether he had a t-shirt on.
“A: Undershirt.
“Q: Undershirt.”

(R. 1085-86.)

We addressed a similar issue in Tyson v. State, 784 So.2d 328 (Ala.Crim.App.2000), when defense counsel attempted to introduce a witness’s , prior statement into evidence during the testimony of a second witness, a law-enforcement officer. The trial court refused to admit the statement into evidence. We held:

“The trial court’s ruling was correct. Rule 613(b), Ala. R. Evid., states: ‘Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or deny having made it.’ Here, the proper predicate for impeaching a witness with extrinsic evidence was not followed. Rule 613, Ala. R. Evid. The trial court correctly did not allow Tyson to introduce Jesse Cowan’s unsigned statement.
“Furthermore, the record reflects that Jesse Cowan’s testimony was in fact impeached with Agent Smith’s testimony that Cowan had told him that his son had gotten into a green car with Bernard Watson on the day of his murder. If any error did occur as a result of the failure to allow the unsigned written statement into evidence, that error was harmless. Rule 45, Ala. R.Crim. P.”

784 So.2d at 353 (footnote omitted).

Our resolution of this case is based on the reasoning applied in Tyson, As was the case in Tyson, Hart could not impeach a witness with a previous statement because the person who made the statement was not on the stand and was not confronted with the statement. Rule 613, Ala. R. Evid. The trial court did not abuse its discretion when it refused to allow Hart to question Sgt. Frazier about the other officer’s prior testimony.

Finally, as the above-quoted portion of Sgt. Frazier’s testimony demonstrates, Hart was able to present his assertion that Sgt. Hadder had testified previously that Hart was not wearing a shirt. Therefore, even if any error had occurred in the trial court’s ruling, and we conclude that none occurred, the error would have been harmless. Rule 45, Ala. R. App. P.

Based on the foregoing, Hart’s claim is meritless, and he is not entitled to any relief.

III.

Hart next claims that the trial court erred when it denied his motion to suppress the statement he gave to police because, he says, the statement was made under duress. Hart alleges that his detention in a cold room and the police officers’ failure to seek adequate clothing or a blanket in response to his request constituted duress.

“In Richardson v. State, 819 So.2d 91 (Ala.Crim.App.2001), this Court stated:
“ ‘The fundamental requirements for voluntariness of confessions are that the court must conclude, in order to find a defendant’s confession voluntary, that he made an independent and informed choice of his own free will, that he possessed the capacity to do so, and that his will was not overborne by pressures and circumstances swirling around him. The test is whether, considering the totality of the circumstances, law enforcement officials have overborne the will of the accused. The factual inquiry centers on the conduct of the law enforcement officials in creating pressure and the suspect’s capacity to resist that pressure.” ’

Baird v. State, 849 So.2d 223, 230-31 (Ala.Crim.App.2002) (citations omitted).

In reviewing decisions concerning the suppression of evidence, we apply a de novo standard of review when the evidence is not in dispute. State v. Keller, 822 So.2d 483, 485 (Ala.Crim.App.2000). Sgt. Jerry Frazier was the only witness at the hearing on the motion to suppress. Therefore, the evidence is not in dispute and we apply a de novo standard of review.

Regarding the temperature of the room in which Hart was detained, Sgt. Frazier testified that before Hart agreed to give a statement, he once told the officers that he was cold. Sgt. Frazier testified, “We looked around to see if we had something that we could give him to put on. We didn’t have anything there.” (R. 1076.) The officer testified that he told Hart that they were not able to find anything for him to put on, that they were waiting for his mother to arrive, and that as soon as his mother arrived, they would take care of it. Hart was wearing an undershirt and shorts, according to the officer. Sgt. Frazier further stated that the room was not any colder than any other in the building. Before Hart’s mother arrived, Hart told the officers that he wanted to talk to them, and he gave a statement. Sgt. Frazier did not recall Hart telling him that he was too cold and that Hart indicated that he wanted to “go ahead and get this over with, without his mother.” (R. 1089.)

After Hart informed the officers that he wanted to make a statement, the officers again informed Hart of his juvenile Miranda rights and told him that his mother had been contacted and that she was on her way. The officers did not promise him anything for making a statement, nor did they threaten him. Hart appeared to understand his rights, and he signed a form waiving those rights. Hart’s mother arrived after the interview began. The officers read Hart his rights in his mother’s presence and asked his mother if she had any questions. She then signed the waiver form and the interview continued.

Sgt. Frazier testified that Hart did not appear to be shaking or shivering from the cold during the interview. He was permitted to use the restroom when he requested to do so. He was detained for approximately two hours before the officers first spoke with him, and he declined to make a statement until his mother arrived. Hart initiated contact with the officers approximately two hours later and indicated that he wanted to make a statement even though his mother had not yet arrived.

Nothing in the record supports Hart’s assertion that the temperature of the room and the clothing he was wearing created coercive circumstances that rendered his statement involuntary. Even though the evidence indicated that Hart had complained about the temperature and had asked for additional clothing, nothing in the record indicates that the temperature influenced his decision to make a statement, or that his will was somehow overborne by the temperature. The trial court did not err in rejecting this claim and in denying the motion to suppress on this ground. Moreover, we find that the remaining circumstances surrounding Hart’s detention and questioning, discussed above, would not support any additional claims that the statement was involuntary.

Our review of the evidence presented leads us to conclude that the claims raised in Hart’s motion to suppress were not substantiated and that the trial court correctly denied the motion to suppress. No error occurred as a result of the admission of Hart’s statement, and Hart is not entitled to any relief on this claim.

IV.

Hart next argues that the trial court erred in denying his motion for a judgment of acquittal, which was based on the State’s alleged failure to “preserve evidence (a urinalysis from Hart) previously ordered by the District Court Judge when Hart was arrested.” (Hart’s brief at 29-BO.) This specific claim was not presented to the trial court; it is therefore not properly before this Court for review.

After the State presented its case to the jury and rested, Hart made a motion for a judgment of acquittal that challenged the sufficiency of the evidence. The trial court denied the motion. Hart then made a second motion for a judgment of acquittal. In -this motion, Hart alleged that, on September 1, 1999, pursuant to a request from defense counsel, the district court ordered an immediate drug analysis. Defense counsel informed the trial court that they believed that “somewhere in the vicinity of the incident” Hart had ingested a powerful drug, perhaps heroin. (R. 1157.) Hart asserts in his brief to this Court that “the paperwork was taken immediately to the Jefferson County Jail once the order was made.” (Hart’s brief at 32.) Contrary to Hart’s assertion in his brief, the record suggests that the paperwork was never delivered to the sheriffs office, and the parties agreed at trial that no drug test was ever performed. Therefore, Hart’s assertion on appeal that the State failed to “preserve evidence” was not raised at trial and is being raised for the first time. Only those specific claims presented to the trial court are properly raised for review on appeal. Grays v. State, 782 So.2d 842, 844 (Ala.Crim.App.2000). Because no drug test was ever performed, Hart could not and did not argue at trial that the State failed to preserve evidence. Therefore, this claim is not subject to review. Moreover, even if the claim had been preserved, it would be baseless, because no drug testing was ever performed and no evidence was ever obtained.

To the extent Hart is arguing that the State failed to ensure that the drug test was performed, he is entitled to no relief. First, the claim was not timely raised. The trial court questioned defense counsel about their actions after they received the district court’s order for the drug test, and defense counsel acknowledged that they did nothing to follow up on the order until some unspecified amount of time had passed. Furthermore, the trial court ascertained that defense counsel failed to raise the matter until after the State had presented its case to the jury. The court noted that defense counsel did not raise the issue when Hart applied for youthful-offender status or when Hart was arraigned or in any pretrial motions. Defense counsel stated that they thought it was proper to raise the matter at trial because it was a due-process violation. The prosecutor stated that she had not seen the motion or the order, and that she first became aware of them “a couple of months ago” when defense counsel contacted her about the drug test. (R. 1168.) The trial court denied the motion.

This Court has repeatedly held that timely objections are required to preserve an assignment of error for appellate review, and that the objection should be made as soon as the objectionable ground becomes apparent. E.g., Perkins v. State, 715 So.2d 888, 894 (Ala.Crim.App.1997). As the trial court’s pointed questions to defense counsel clearly indicated, a timely objection was not made in this case. Therefore, no error regarding the alleged failure to secure the drug analysis was preserved for this Court’s review.

Based on the foregoing, Hart is not entitled to any review of, or relief on, this claim of error.

V.

In his final issue, Hart argues that the trial court erred when it denied him the right to thoroughly cross-examine Mary Jones about Ashley Jones’s participation in the crimes. Hart has failed to provide this Court with any citations to the parts of the record relied on in support of this claim, as required by Rule 28(a)(10), Ala. R.App. P. Hart’s appellate counsel states:

“Hart’s attorney attempted to elicit from Mary Jones testimony regarding statements made at the juvenile hearing of Ashley Jones. The state had previously filed a motion in limine that prevented any statements to be made concerning what Ashley Jones said.”

(Hart’s brief at 85.) Appellate counsel has failed to cite to portions of the record containing the State’s motion in limine, any hearing or trial court ruling on the motion in limine, or the portions of Mary Jones’s testimony where he was allegedly precluded from examining her on this matter. By failing to include any citations to the record on this issue, Hart has failed to comply with Rule 28(a)(10), Ala. R.App. P., and has waived this claim for purposes of appellate review. E.g., Hamm v. State, [Ms. CR-99-0654, Feb. 1, 2002] - So.2d - (Ala.Crim.App.2002).

Moreover, we have reviewed defense counsel’s cross-examination of Mary Jones (R. 700-24), and we have found only one instance in which the trial court sustained an objection made by the prosecutor (R. 723). It appears that defense counsel was attempting to impeach Mary’s testimony that Hart pointed a gun at her and said, “This is how you are going to die,” by eliciting testimony that Mary had not testified to that statement at Ashley Jones’s transfer hearing. The prosecutor objected on grounds that Mary had not made an inconsistent statement at the transfer hearing, but that if counsel had a contradiction, that was appropriate to use. The trial court sustained the objection; defense counsel did not pursue that question further. However, defense counsel then asked Mary whether, in her statement to the police, she had said that Hart told her, “This is how you are going to die,” and Mary said that she had- not. Defense counsel also elicited from Mary testimony that she believed that one’s memory is better immediately after an event than after time passes. (R. 723.) Therefore, even if Hart had properly presented this claim for our review — and he did not — he would not be entitled to any relief because the jury heard the substance of the testimony he had .earlier attempted to elicit from Mary and to which the prosecutor objected. Even if the trial court had erred in sustaining the prosecutor’s objection, the error would have been harmless. Rule 45, Ala. R.App. P.

Based on the foregoing, Hart’s convictions and sentences for two counts of capital murder and two counts of attempted murder are affirmed.

AFFIRMED.

McMILLAN, P.J., and SHAW and WISE, JJ„ concur. BASCHAB, J., concurs in the result.

      . Hart argued at trial that Sgt. Hadder's prior testimony was offered to refresh Sgt. Frazier’s memory. Rule 612, Ala. R. Evid. We note, however, that Sgt. Frazier's memory was not exhausted. Rather, Sgt. Frazier's testimony differed from Sgt. Hadder’s testimony, and Hart sought to challenge Sgt. Frazier's testimony and recollection of events with the prior testimony of another witness. Therefore, although Hart argued otherwise at trial, his attempt to use the prior testimony of Sgt. Hadder was actually an improper attempt to impeach Sgt. Frazier.

      . We have listened to the tape recording of Hart’s confession, and observed that Hart did not refer to the temperature in any way. His responses to questions were clear and understandable, and give no indication of any duress.


author: LEVY, Judge. FLETCHER, Judge.

text:
    The STATE of Florida, Appellant, v. Kear Santwone WALKER, Appellee.
    No. 3D02-2958.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Order Denying Rehearing Aug. 27, 2003.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traina, Assistant Attorney General, for appellant.
    Howard Sohn, Miami, for appellee.
    Before LEVY, FLETCHER, and SHEVIN, JJ.
   LEVY, Judge.

The State of Florida appeals from a trial court order which granted the Defendant’s Motion to Suppress Statements, Admissions and/or Confessions. We reverse.

The instant case concerns the application of a notification requirement in Miami-Dade County’s Addendum to Joint Declaration to Mutual Agreement (“the Agreement”). The Agreement provides that it is to the mutual benefit of the municipal police agencies who are signatories to the Agreement to exercise concurrent jurisdiction over certain situations because “officers, while in another jurisdiction, are often present at events where immediate action is necessary, or are able to expeditiously conclude an investigation by identifying and arresting an offender.” One of the situations under which concurrent jurisdiction is permissible is for arrests made pursuant to the laws of arrest, of individuals identified as a result of investigations of a felony when that felony occurred in the municipality which employs the arresting municipal police officer. The Agreement provides that an officer who seeks to take any enforcement action in a jurisdiction other than the jurisdiction in which she is employed is required to notify the jurisdiction in which the enforcement action will be taken before commencing that action unless exigent circumstances prevent prior notification. If exigent circumstances prevent prior notification, then notification is required to be made as soon after the action as possible. The Agreement does not define the term “exigent circumstances”. The City of Miami Police Department and the City of Opa Locka Police Department are two of the signatories to the Agreement.

In the instant case, the pursuit of the Defendant attracted extensive attention after the warrant was obtained on April 27, 2000. At approximately 10:00 a.m. on May 2, 2000, after attempts to locate the Defendant were unsuccessful, the City of Miami issued a press release to the local television stations and the local newspapers for the purpose of soliciting information from the public regarding the Defendant’s whereabouts. That afternoon, the local television stations aired stories regarding the search for the Defendant. On the following day, May 3, 2000, the Miami Herald ran a story which stated that the police were searching for the Defendant, and that a reward was being offered for information which led to the Defendant’s capture.

At approximately 2:00 p.m. on May 3, 2000, a City of Miami police officer received information regarding the whereabouts of the Defendant. Based upon this information, a team of four officers was convened for the purposes of apprehending the Defendant. The team of officers traveled to an apartment in the Liberty City area, arriving at approximately 2:30 p.m., but the Defendant was not present at that apartment upon the officers’ arrival. Five minutes later, and prior to their departure from the apartment, the officers received information from Crimestoppers that the Defendant was present at the home of his girlfriend in the City of Opa Locka. The team of officers then traveled to the house in the City of Opa Locka, arrived at 2:50 p.m., and apprehended the Defendant. According to the testimony presented at the suppression hearing, the City of Miami Police Department notified the Opa Locka Police Department of the presence of its officers after it arrested the Defendant. The testimony at the suppression hearing further established that the City of Miami officers did not activate any emergency equipment (i.e., sirens) while they traveled to the Opa Locka location, and, while traveling to the Opa Locka location, the officers did not contact the Opa Locka Police Department using cell • phones or police radios.

On May 24, 2000, the Defendant was charged by indictment with one count of First Degree Murder for the December 25, 1998 death of Mark Couch. On October 4, 2002, the Defendant filed a Motion to Suppress Statements, Admissions and/or Confessions, contending that the statements obtained by the police from the Defendant followed his illegal arrest, detention and/or seizure by law enforcement agents. The trial court granted the motion, concluding that the Defendant was illegally arrested because the State faded to prove that there were exigent circumstances which permitted the City of Miami police officers to arrest the Defendant in the City of Opa Locka.

The State contends that, based on the foregoing facts, exigent circumstances prevented the City of Miami police officers from notifying the City of Opa Locka Police Department, thereby permitting the City of Miami police officers to notify the City of Opa Locka Police Department after the Defendant’s arrest. We agree. According to the Standard Operating Procedure in the Addendum to Joint Declaration to Mutual Aid Agreement, “[pjrior to taking any enforcement action the officer shall notify the designated officer of the jurisdiction in which the action will be taken, unless exigent circumstances pre vent such prior notification, in which case notification shall be made as soon after the action as possible.” (emphasis added) On the date of the Defendant’s arrest, the police were continuously receiving tips concerning the location of the Defendant and, therefore, were required to investigate each tip in an expeditious manner in order to prevent the Defendant from fleeing the area. Furthermore, given the attention that the media focused on the search for the Defendant on the day before and the day of his arrest, the use of police radios and/or cell phones to notify the City of Opa Locka Police Department of the action prior to the Defendant’s capture would have undoubtedly (1) attracted unwanted attention to the pursuit and (2) compromised any element of surprise necessary for the City of Miami officers to effectuate the arrest. Therefore, consistent with the above described section in the Agreement, exigent circumstances existed under which notification to the City of Opa Locka Police Department could be made after the arrest was effectuated. Accordingly, the order granting the Defendant’s motion to suppress is quashed and this case is remanded to the trial court for further proceedings.

Reversed.

ON MOTION FOR REHEARING DENIED

FLETCHER, Judge.

Although we deny the petition for rehearing, we would add the following to our reasoning:

The mutual agreement addendum was entered into for the mutual benefit of the signatories thereto, not for the benefit of defendants. If a signatory breaches the agreement, an affected signatory has standing to complain. Thus if the City of Opa Locka had concluded that there were no exigent circumstances it had available to it the ability to withdraw from the agreement or to take action to forestall any future violation of the same nature. The defendant, however, is not a party to the agreement. As the agreement contains no language making the defendant a third party beneficiary, the defendant has no standing to challenge any ostensible breach of the agreement. For this additional reason rehearing is appropriately denied.

      . While the term "exigent circumstances” is not defined in the Agreement, it is clear that an "exigent circumstance,” for the purposes of the Agreement, would be a situation where notification prior to the enforcement action would prevent the police from obtaining the benefits of the agreement — to wit, having the ability to expeditiously conclude an investigation by identifying and arresting an offender.


author: PER CURIAM.

text:
    CUB CADET CORPORATION, an Ohio corporation, Appellant, v. BLAKEWOOD EQUIPMENT SALES, INC., a Florida corporation, Stephen Blakewood, an individual; and Sally Blakewood, an individual, Appellees.
    No. 1D02-2513.
    District Court of Appeal of Florida, First District.
    June 26, 2003.
    Rehearing Denied Aug. 28, 2003.

      Sonya H. Hoener of Marks Gray, P.A., Jacksonville, for Appellant.
    John F. Roscow, III of Scruggs & Carmichael, P.A., Gainesville, for Appellees.
   PER CURIAM.

Affirmed. See Gulf Landings Assoc., Inc. v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003); Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA 2003).

WEBSTER, PADOVANO and POLSTON, JJ., concur.


author: HAZOURI, J.

text:
    NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, Appellant, v. Robert KLEIN, Appellee.
    No. 4D02-1463.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Rehearing Denied Sept. 10, 2003.
    Mark W. Rickard of Jacobson, Sobo & Moselle, Plantation, for appellant.

      John T. Mulhall III of Rutherford, Mul-hall & Wargo, P.A., Boca Raton, for appel-lee.
   HAZOURI, J.

Appellant, New York State Department of Taxation and Finance, appeals from the trial court’s order granting appellee, Robert Klein’s, motion for judgment on the pleadings and the subsequent judgment dismissing appellant’s cause with prejudice. We reverse and remand for further proceedings.

On August 31, 2001, appellant filed a complaint, pursuant to section 72.041(2), Florida Statutes (2001), to enforce six foreign tax warrants issued against appellee, a Palm Beach County resident. The complaint alleged that appellee owed $354,142.91 in delinquent sales tax plus penalties and interest. In response, appel-lee denied that he owed the taxes and asserted an affirmative defense of statute of limitations. One of the warrants was entered on August 10, 1990, and the five other warrants were entered on September 12, 1994. Appellee argued that the five-year statute of limitations set out in section 95.11(2), Florida Statutes (2001), barred appellant’s action. Appellee also filed a motion for judgment on the pleadings asserting that the action was time barred in accordance with section 95.11(2).

Appellant argued that a twenty-year statute of limitations should be applied. However, the trial court disagreed and found that the twenty-year statute of limitations applies only to enforcement of tax warrants issued to and enforced by the State of Florida. The trial court found that the five-year statute of limitations set forth in section 95.11(2)(a) applies to actions brought under section 72.041. In addition, the trial court determined that, as a matter of law, each warrant was a separate judgment.

“Judgment on the pleadings may be granted only if, upon admitted facts, the moving party is clearly entitled to judgment as a matter of law.” Harris v. Kearney, 786 So.2d 1222, 1225 (Fla. 4th DCA 2001) (quoting First Fin. USA, Inc. v. Steinger, 760 So.2d 996, 997 (Fla. 4th DCA 2000)). Steinger further holds:

In ruling on a motion for judgment on the pleadings[,] material allegations of the moving party which have been denied are taken as false. Conclusions of law also are not deemed admitted for purposes of the motion. The court must accept as true all well-pleaded allegations of the non-moving party.

760 So.2d at 997 (quoting Windle v. W.W. Windle Co., 731 So.2d 36, 37 (Fla. 4th DCA 1999)).

Appellant filed suit in Florida to enforce its tax warrants or judgments pursuant to section 72.041, which states:

Actions to enforce lawfully imposed sales, use, and corporate income taxes and motor and other fuel taxes of another state may be brought in a court of this state under the following conditions:
(1) The state seeking to institute an action for the collection, assessment, or enforcement of a lawfully imposed tax must have extended a like courtesy to this state;
(2) Venue for any action under this section shall be the circuit court of the county in which the defendant resides;
(3) This section does not apply to the enforcement of tax warrants of another state unless the warrant has been obtained as a result of a judgment entered by a court of competent jurisdiction in the taxing state or unless the courts of the state seeking to enforce its warrant allow the enforcement of the warrants issued by the Department of Revenue pursuant to chapters 206, 212, 213, 220, and 221; and
(4) All tax, liabilities owing to this state or any of its subdivisions shall be paid first and shall be prior in right to any tax liability arising under the laws of other states.

Appellant, relying on Nadd v. Le Credit Lyonnais, S.A., 804 So.2d 1226 (Fla.2001), argues that the twenty-year limitation period found in section 95.11(1) applies to this action. We disagree. We find the recent decision of the fifth district in New York State Department of Taxation v. Patafio, 829 So.2d 314 (Fla. 5th DCA 2002), to be directly on point on the issues in the instant case and find Patafio controlling.

In Patafio, the New York State Department of Taxation relied on Nadd in its argument (as it does in the instant case) but the fifth district found that this reliance was misplaced. The court stated:

Nadd held that the twenty-year statute of limitations applies to actions brought to enforce a foreign judgment only after the judgment has been domesticated through the registration and recognition process found in the Uniform Foreign Money Judgment Recognition Act (UF-MJRA). [footnote omitted] NYS makes no allegation that its cause of action arises under the UFMJRA as that act applies only to judgments seeking to recover money, other than a judgment for taxes, fines or penalties of a foreign state. Foreign state is defined under the UFMJRA as “any governmental unit other than the United States, or any state, district, commonwealth, territory, insular possession thereof, or the Panama Canal Zone, the Trust Territory of the Pacific Islands or the Ryukyu Islands.” § 55.602(1) & (2), Fla. Stat. (1995). In other words, the UFMJRA applies only to judgments from jurisdictions outside the United States and its territories.[FN2]
FN2. We do not consider the possible applicability of the Florida Enforcement of Foreign Judgments Act, sections 55.501-55.509, Florida Statutes (2001), because NYS did not bring its action under this Act.

Patafio, 829 So.2d at 316 (citations omitted). Similarly, in the instant case, appellant’s claim did not fit under the UFMJRA and appellant did not bring its case under the Florida Enforcement of Foreign Judgments Act.

In Patafio, the court noted that New York State sought to enforce its tax warrants pursuant to section 72.041. The fifth district then held:

Because section 72.041 does not include a statute of limitations provision upon which courts, judgment creditors or debtors may rely when a judgment creditor seeks to enforce a foreign judgment in Florida, we turn to Florida’s general statutory provisions to determine the applicable limitations period. See Nadd, 804 So.2d at 1229 [the supreme court held that because the UFMJRA did not include a statute of limitations, the court must turn to Florida’s general statutory provisions to determine a limitations period].

829 So.2d at 316-17.

Section 95.11 is the applicable statute of limitations. The issue is which subsection applies to the instant action. Section 95.11 provides in pertinent part:

Actions other than for recovery of real property shall be commenced as follows:
(1) WITHIN TWENTY YEARS. — An action on a judgment or decree of a court of record of this state.
(2) WITHIN FIVE YEARS.—
(a) An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.

By the very terms of the statute, the twenty-year limitation period applies to actions seeking to enforce a foreign judgment after it has been domesticated under the applicable statutes. In Patafio and in the instant case, the New York judgments were not domesticated in Florida.

Appellant argues that Patafio is wrongly decided in that it did not address the issue of whether section 95.091(l)(b), Florida Statutes (2001), applies to an action brought under section 72.041, and asserts that section 95.091(l)(b) is applicable. Section 95.091(l)(b), entitled “Limitation on actions to collect taxes,” provides:

Any tax lien granted by law to the state or any of its political subdivisions for any tax enumerated in s. 72.011 shall expire 20 years after the last date the tax may be assessed, after the tax becomes delinquent, or after the filing of a tax warrant, whichever is later. An action to collect any tax enumerated in s. 72.011 may not be commenced after the expiration of the lien securing the payment of the tax.

Section 72.011 applies to sales tax which is the type of tax appellant is seeking to recover. However, a clear reading of section 95.091(l)(b) indicates that it applies to tax liens granted by law of this state, not any other state. The trial court’s conclusion that the five-year statute of limitation applies was correct; however, as in Pata-fio the pleadings in the instant case do not conclusively demonstrate when the New York State Department of Taxation and Finance’s action accrued or if it was tolled at any time after the commencement of the five-year period.

In Patafio, although the fifth district affirmed the application of the five-year statute of limitations, it did not affirm the dismissal of the action but remanded for further proceedings. It held:

We must next determine if the complaint conclusively demonstrates when NYS’s cause of action in Florida accrued as that is what triggers the commencement of the limitations period. A cause of áction accrues within the meaning of the statute of limitations when the action may be brought. In other words, a cause of action does not accrue within the meaning of the statute of limitations until an action can be instituted thereon. There must be some person capable of suing or being sued upon the claim in order for the statute to begin. Applying that rule to the allegation^ of NYS’s complaint, the statute of limitations on NYS’s action could not have begun to run until Patafio either became a resident of Florida, did business in Florida, or acquired property in Florida. See § 48.193, Fla. Stat. (2001) (stating the acts which subject persons to Florida’s jurisdiction). Until that time, NYS could not have brought suit in Florida because there was no one capable of being sued in Florida and the courts of this state would have been without jurisdiction to act. None of this is conclusively demonstrated by the complaint. A motion to dismiss is not a substitute for a motion for summary judgment, and in ruling on such a motion, the trial judge must consider only the allegations found within the four corners of the complaint.

829 So.2d at 317 (citations omitted).

Appellant argues that the tax warrants show that appellee was a resident of New York at the time they were issued. Klein has not alleged in any pleading when his residency in Florida began or whether he has resided in Florida more than five years since his residency began. Therefore, as in Patafio, we reverse and remand for further proceedings consistent with this opinion.

TAYLOR and MAY, JJ., concur.


text:
    H.D., Father of L.S., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D03-2181.
    District Court of Appeal of Florida, First District.
    July 11, 2003.
    Rehearing Denied Aug. 28, 2003.
    Deborah A. Schroth, Jacksonville, for Appellant.
    Deborah Stafford, Assistant General Counsel, Jacksonville, Athiel S. Jones, Jacksonville, Hilda Griffis of the Guardian Ad Litem Program, Jacksonville, and Henry M. Coxe of Bedell, Dittmer and De-vault, Jacksonville, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 10, 2003, the Court has determined that the order on appeal is not a final order nor an appealable nonfinal order. T.H. v. Department of Children and Families, 736 So.2d 126, 127 (Fla. 1st DCA 1999). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BOOTH, BARFIELD and ALLEN, JJ., concur.


author: TAYLOR, J.

text:
    Thomas ALTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2714.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Rehearing Denied Sept. 3, 2003.

      Eugene S. Garrett, Boca Raton, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant was convicted of committing a lewd act and three lewd and lascivious assaults on a minor child. The main issue in this appeal is whether appellant’s acts of kissing and inserting his tongue into the victim’s mouth and rubbing his penis against the victim’s vagina, while both were clothed, constitute sexual contact justifying victim injury points under section 921.0011(7), Florida Statutes (1995). We hold that they do and affirm appellant’s sentence.

The victim was the seven-year-old daughter of a family friend. At trial, the victim testified that appellant took her to his empty home, turned off the lights, closed the shade, and told her to lie on the bed. Appellant then laid on top of her, face to face, and rubbed his penis up and down against her vagina while they were both clothed. As appellant “humped” the girl, he kissed her, thrusting his tongue against hers. She tried to clench her teeth to stop him, but he put his hand on her chin and forced it down. Afterwards, appellant instructed the child not to tell anyone.

The victim testified that on another occasion, when appellant was alone with the child, appellant laid on a bed, unzipped his pants, and removed his penis. At first he told the child to suck his penis; then he changed his mind and kissed the child with his tongue instead. When he finished tongue-kissing her, he told her not to tell anybody about what had happened. At another time, appellant called the child over to him, behind her cousin who was playing video games nearby, and kissed her with his tongue inside her mouth. Again, he told her not to tell anybody.

Appellant was convicted of three counts of lewd assault by kissing and inserting his tongue into the mouth of the victim, in violation of what was then section 800.04(1), Florida Statutes, and one count of lewd act by positioning himself on the body of the victim and touching, rubbing, or moving his body and/or pelvic area against the victim’s, in violation of what was then section 800.04(2), Florida Statutes.

At sentencing, the trial court added eighteen victim injury points for sexual contact to appellant’s guidelines score sheet on each count, thus increasing appellant’s score by seventy-two points. Appellant’s judgment and sentence were per cu-riam affirmed in Altman v. State, 698 So.2d 1232 (Fla. 4th DCA 1997)(Atoraa« I). Thereafter, appellant filed a motion for postconviction relief, arguing that he should have been sentenced under the guidelines applicable to crimes committed after January 1, 1994. The court granted the motion for re-sentencing under the 1994 guidelines, but ruled that appellant had waived the issue regarding victim injury points by failing to raise it on his first appeal. In Altman v. State, 756 So.2d 148 (Fla. 4th DCA 2000)(Altman II), we reversed this ruling and held that appellant could raise the issue of victim injury points at re-sentencing. Id. at 150. Without deciding the merits of appellant’s argument, we remanded the case for the trial court to consider the evidence and “to determine whether the facts in this case constituted sexual contact which would justify victim injury points under section 921.0011(7), Florida Statutes (1995).” Id. On remand, the trial court reinstated appellant’s sentence.

Appellant argues that the trial court erred in assessing victim injury points for sexual contact, pointing out that no Florida appellate court has upheld points for either (1) rubbing one’s clothed genitals against another’s or (2) kissing and inserting one’s tongue into another’s mouth. Our research reveals that courts have upheld sexual contact victim injury points in instances where the offender touched clothed sexual parts of the victim. In Fredette v. State, 786 So.2d 27 (Fla. 5th DCA 2001), the fifth district held that sexual contact includes touching a child’s vaginal area, and opined that this would constitute sexual contact even if the touching was over the child’s clothing. Id. at 28 n. 2. In so holding, the court cited our opinion in Louis v. State, 764 So.2d 930 (Fla. 4th DCA 2000), wherein we held that touching the victim’s chest through her shirt, along with touching her stomach and genital area, involved sexual contact for which victim injury points were properly scored. Id. at 931-32; see also Blackburn v. State, 762 So.2d 989, 990 (Fla. 5th DCA 2000)(holding that defendant’s act of rubbing his erect penis on the victim’s clothed back while in a department store" in violation of section 800.04(1), constituted sexual contact for proper assessment of victim injury points); Mackey v. State, 516 So.2d 330, 330-31 (Fla. 1st DCA 1987)(affírming victim injury points for sexual contact where defendant fondled a thirteen-year old boy by touching him above the crotch). We conclude that appellant’s act of lying on top of the victim with his clothed genitals pressed against hers and “humping” her constitutes sexual contact for which victim injury points were appropriately scored.

A more difficult issue is the propriety of assessing sexual contact victim injury points for appellant’s conduct in french-kissing the minor victim. The guidelines statute does not define “sexual contact” for purposes of scoring victim injury points. Nor does a definition appear anywhere in Florida case law.

Recently, in Seagrave v. State, 802 So.2d 281 (Fla.2001), the Florida Supreme Court considered circumstances under which victim injury points may be assessed for “sexual contact” under section 921.0011(7). There, the defendant argued that the trial court had improperly assessed victim injury points following his conviction under section 800.04 for fondling a minor victim’s buttocks. He contended that victim injury points should not have been assessed because his conduct did not involve a sexual battery, i.e., a union of the sex organ of one person with the oral, anal, or vaginal opening of another. The court pointed out that:

[ Ujnder the interpretation of “sexual contact” advocated by Seagrave, section 921.0011(7)(b)2. would be inapplicable to defendants convicted under sections 800.04(1) and (2) of the lewd and lascivious conduct statute, because these subsections prohibit a variety of acts that do not necessarily require the union of a sexual organ of one person with the oral, anal or vaginal opening of another.

Id. at 286. The court disagreed with this position, concluding that the phrase “sexual contact” is not limited to criminal offenses involving sexual union, but is more inclusive. Id.

Although the supreme court did not define “sexual contact” or answer the specific question posed by the first district, i.e., whether fondling the buttocks is sexual conduct, it did offer substantial guidance in interpreting the phrase “sexual contact.” Seagrave instructed courts to resort to canons of statutory construction to determine its proper meaning. Id. The court explained that a fundamental tenet of statutory construction requires courts to give statutory language its plain and ordinary meaning. Id. Thus, in interpreting the term “sexual contact,” courts must examine its most commonly understood meaning. The most common usage of the phrase “sexual contact,” according to the court, “encompasses the physical touching of a person’s sexual body parts.” Id. However, the court discouraged an “unduly restrictive” definition of “sexual contact” that would be “contrary to the plain and commonly understood meaning of the term.” Id.

In light of Seagrave’s more expansive interpretation of “sexual contact,” which takes into account the wide range of activity proscribed by the lewd and lascivious statute, we conclude that appellant’s act of french kissing the victim comes within the definition of sexual contact. Section 800.04(1), under which appellant was convicted, prohibits a person from handling, fondling, or assaulting any child under sixteen in a lewd, lascivious, or indecent manner. This subsection is couched in general language and does not restrict criminal activity to touching specific body parts of a child. Rather, the focus appears to be upon acts committed on a child that are sexually motivated.

In Boles v. State, 158 Fla. 220, 27 So.2d 293, 294 (1946), the Florida Supreme Court explained that the terms “lewd,” “lascivious,” and “indecent” connote a “wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.” A conviction under the lewd assault statute is proper if the evidence reveals “a lustful or sensual purpose” on the part of the defendant in committing the assault. Id. According to Boles, “there must be a definite showing of a lewd or lascivious interest,” which may be imputed from the circumstances. Id. In this case the jury found appellant guilty of a lewd assault upon evidence which showed that his act of inserting his tongue into the minor victim’s mouth was done solely for sexual gratification. As described above, the first two acts of french-kissing the child were accompanied by other sexual acts. Further, each time appellant french-kissed the victim, he did so in a surreptitious manner and told the victim not to tell anyone. The victim testified that she clenched her teeth together to prevent appellant from forcing his tongue into her mouth. While a person’s intent under certain circumstances may be subject to different interpretations, the circumstances in this case do not point to an innocent, non-sexual motive on the part of appellant.

In People v. Calusinski, 314 Ill.App.3d 955, 247 Ill.Dec. 956, 733 N.E.2d 420 (2000), an Illinois appellate court held that the defendant’s act of placing his tongue in a six-year-old victim’s mouth constituted “sexual conduct” under its sexual abuse statute. According to the statute, “[o]ne commits the offense of criminal sexual abuse if he commits an act of sexual conduct by the use of force or threat of force.” Id., 247 Ill.Dec. 956, 733 N.E.2d at 425 (citing 720 Ill. Comp. Stat. 5/12-15(1998)). For purposes of criminal sexual abuse, the statute defined “sexual conduct” as:

any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of ... any part of the body of a child under 13 years of age ... for the purpose of sexual gratification or arousal of the victim or the accused.

720 Ill. Comp. Stat. 5/12-12(e).

The court noted that the “defendant’s sexual gratification or arousal may be inferred from the evidence.” Id. (citing People v. C.H., 237 Ill.App.3d 462, 177 Ill.Dec. 906, 603 N.E.2d 1280 (1992)). It further recognized numerous Illinois cases establishing that, under the appropriate circumstances, kissing can constitute sexual conduct. For example, in People v. Kirilenko, 1 Ill.2d 90, 115 N.E.2d 297 (1953), the Illinois Supreme Court observed that “the bodily contact established by kissing often serves as a preliminary stimulant for arousing or appealing to sexual passions and desires.” Id. at 300. Concluding that the defendant’s conduct in placing his tongue in the minor girl’s mouth constituted “sexual conduct,” the court in Calusin-ski decided that, “[d]espite the defendant’s assertions, we cannot ascribe an innocent motive to such conduct.... [A] ‘french kiss’ is an inherently sexual act which generally results in sexual excitement and arousal.” Calusinski, 247 Ill.Dec. 956, 733 N.E.2d at 426.

In Altman II, we remanded this case to the trial court to make a factual determination, based on evidence presented at trial or sentencing, regarding the assessment of sexual contact victim injury points. See Altman II, 756 So.2d at 150. After considering the evidence, the trial court determined that appellant’s behavior constituted sexual contact. We find no abuse of discretion in its ruling. See Ely v. State, 719 So.2d 11, 13 (Fla. 2d DCA 1998)(stating that the imposition of victim injury points on a sentencing score sheet is within the sound discretion of the trial court).

Considering the “most commonly understood meaning of ‘sexual contact,’ “ as Seagrave instructs, we determine that the phrase “sexual contact” encompasses more than the touching or fondling of genitalia. It may include french-kissing a minor child. Significantly, the jury found that appellant’s acts of forcing his tongue into the victim’s mouth while kissing her constituted a lewd or lascivious assault. Their verdict reflected a common understanding that such intimate oral contact with a child is sexual in nature.

More than thirty years ago, when the Florida Supreme Court upheld the constitutionality of the lewd and lascivious conduct statute against a vagueness challenge, it observed that it would be “difficult or impossible to detail in a statute book all the acts which would constitute lewd and lascivious behavior.” Chesebrough v. State, 255 So.2d 675, 678 (Fla.1971)(citing Buchanan v. State, 111 So.2d 51, 57 (Fla. 1st DCA 1959)). The same can be said about listing in the guidelines statute all acts which would qualify as “sexual contact.” “Sexual” and “contact” are words of common use. Like “lewd” and “lascivious,” their ordinary meaning “indicate with reasonable certainty the character of acts and conduct which the Legislature intended to prohibit and punish, so that a person of ordinary understanding may know what conduct on his part is condemned.” Id. at 677. Because we agree that an ordinary person of common intelligence would understand that tongue-kissing a minor child is sexual contact, we find no error in the trial court’s assessment of victim injury points.

Appellant also argues that the determination of victim injury sexual contact points should have been submitted to the jury and proven beyond a reasonable doubt, as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This argument fails, however, because appellant’s sentence did not exceed the statutory maximum penalty. See Caraballo v. State, 805 So.2d 882 (Fla. 2d DCA 2001)(holding that because the defendant’s sentence did not exceed the statutory maximum, the defendant was not entitled to postconviction relief under Apprendi); McCloud v. State, 803 So.2d 821 (Fla. 5th DCA 2001)(holding that the sentencing court’s inclusion of victim injury points on defendant’s score sheet for sexual penetration did not violate rule of Apprendi because inclusion of these points did not result in a sentence in excess of the statutory maximum penalty for his sexual battery conviction).

For the above reasons, we affirm the sentence imposed by the trial court.

AFFIRMED.

KLEIN and GROSS, JJ., concur.

      . Section 800.04, Florida Statutes, provided in pertinent part:
      Any person who:
      (1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner;
      (2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of the genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act;

      without committing the crime of sexual battery, commits a felony of the second degree, punishable as provided in s. 775.082, s.775.083, or s.775.084, neither the victim's lack of chastity nor the victim’s consent is a defense to the crimes proscribed by this section.

      . Section 921.0011(7), Florida Statutes (1995), and Florida Rule of Criminal Procedure 3.702(d)(5) specified when victim injury was to be scored for sexual contact under the 1994 sentencing guidelines. For an offense involving sexual contact without sexual penetration, the sexual contact had to be scored as a moderate injury, regardless of whether there was evidence of any physical injury. For a moderate injury, the victim injury score was eighteen points. § 921.0014(1), Fla. Stat. (1995).

      . Appellant argues that the jury did not find that he "french-kissed” the victim. “French kiss,” however, is defined as “a kiss in which the tongue enters the partner's mouth." The American Heritage Dictionary 533 (2d col. ed.1986).

      . In 1999, the Legislature amended the lewd and lascivious statute to include a section which delineates the forms and body areas of touching that constitute "lewd or lascivious molestation." Ch. 99-201, § 6, at 1187-88, Laws of Fla.
      Now, section 800.04(5) provides, in part:
      (a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to touch the perpetrator, commits lewd or lascivious molestation.
      Section 800.04(6), however, continues to describe lewd or lascivious conduct in more general terms. Subsection (a) states:
      A person who:
      1. Intentionally touches a person under 16 years of age in a lewd or lascivious manner; or
      2. Solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct.


text:
    Lloyd MCELRATH, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3823.
    District Court of Appeal of Florida, Fifth District.
    July 29, 2003.
    Lloyd McElrath, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Spencer, 751 So.2d 47 (Fla.1999).

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


text:
    James Roy CROSBY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3681.
    District Court of Appeal of Florida, Fifth District.
    July 29, 2003.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    James Roy Crosby, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

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


text:
    Amelia A. MCCOMISKEY, Appellant, v. Bonnie MCCOMISKEY, Appellee.
    No. 5D02-3534.
    District Court of Appeal of Florida, Fifth District.
    July 29, 2003.
    Jean Desrosiers-Moyer, Hollister, for Appellant.
    William L. Townsend, Jr. of Walton & Townsend, P.A., Palatka, for Appellee.
   PER CURIAM.

AFFIRMED. See Shields v. Flinn, 528 So.2d 967 (Fla. 3d DCA 1988).

GRIFFIN, ORFINGER and MONACO, JJ., concur.


author: NORTHCUTT, Judge.

text:
    STATE of Florida, Appellant, v. Dayle THOMPSON, Appellee.
    No. 2D02-2370.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2003.

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

The State charged Dayle Thompson with possession of cocaine with the intent to sell or deliver. The cocaine was seized inside an apartment when police officers entered it to detain another man they believed was a wanted felon. Thompson moved to suppress the drugs, contending that the officers who discovered them had failed to comply with the “knock and announce” requirement of section 901.19(1), Florida Statutes (2000), and that no exigent circumstances supported the officers’ unauthorized entry into the home. The circuit court suppressed the evidence on those grounds. We agree with the court’s conclusion that the officers’ entry into the home and seizure of the drugs were illegal. But we reverse the suppression order and remand for further proceedings to make an additional determination that is necessary to the resolution of this matter.

At the suppression hearing the State objected that Thompson, a visitor to the apartment, did not have standing to contest the search and seizure. The circuit court immediately overruled the State’s objection, but then said it would take evidence on the issue. Thompson’s counsel responded that “he has standing ... because he’s here for trial because they are attributing this cocaine to him in a criminal case.” At that point, the court again overruled the State’s objection.

When the State questions the defendant’s standing to challenge a search and seizure, the defendant must prove that he had a reasonable expectation of privacy in the premises searched. Rakas v. Illinois, 439 U.S. 128, 152, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Suco, 521 So.2d 1100, 1102 (Fla.1988). The circuit court’s determination of standing must be supported by record evidence, not just counsel’s assertions. State v. Gibson, 670 So.2d 1006, 1008 n. 1 (Fla. 2d DCA 1996). This is because argument of counsel is not evidence. DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998). Even if it were, the test for standing is not whether the defendant might go to prison, but whether he had a reasonable expectation of privacy in the premises searched. See State v. Brown, 575 So.2d 763, 764 (Fla. 4th DCA 1991). Numerous cases analyze what must be shown for a guest to have the requisite expectation of privacy to challenge a search of a premises he is visiting. See, e.g., Suco, 521 So.2d at 1102-03; McCauley v. State, 842 So.2d 897, 900 (Fla. 2d DCA 2003); State v. Mallory, 409 So.2d 1222, 1223-24 (Fla. 2d DCA 1982).

Here, there was no evidence on which the circuit court could determine whether Thompson had standing or not. We cannot fault Thompson for failing to meet his burden of proof on this issue because the court overruled the State’s objection before he had an opportunity to present sworn testimony. Accordingly, we reverse and remand for a new suppression hearing on the issue of standing only. If the circuit court determines that Thompson has standing, it shall grant his motion to suppress based on the fact that the search and seizure were otherwise illegal.

ALTENBERND, C.J., and STRINGER, J., Concur.


author: DAVIS, Judge.

text:
    S.R.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4961.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2003.
    James Marion Moorman, Public Defender, Bartow, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee; and Anne Sheer Weiner and Tiffany Gatesh Fearing, Assistant Attorneys General, Tampa, for Appellee.
   DAVIS, Judge.

S.R.G. challenges the disposition order of the circuit court adjudicating her delinquent for an act of criminal mischief involving vandalizing an automobile. She specifically maintains that the trial court erred in denying her motion for judgment of acquittal because there was insufficient circumstantial evidence to prove identity. We agree and reverse.

We realize that where the only proof of guilt is circumstantial, a conviction may not be sustained no matter how strongly the evidence may suggest guilt, unless the evidence is inconsistent with any reasonable hypothesis of innocence. The accepted standard of review, however, is not whether the evidence failed to exclude every reasonable hypothesis but that of guilt, but whether there was substantial, competent evidence for [the factfinder] to so conclude.

Bradford v. State, 460 So.2d 926, 931 (Fla. 2d DCA 1984) (citations omitted); see also Porter v. State, 752 So.2d 673 (Fla. 2d DCA 2000).

Following our de novo review of the instant record, see Pagan v. State, 830 So.2d 792, 803 (Fla.2002), cert. denied, - U.S. -, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003), we conclude that the State did not provide competent, substantial evidence for the trial court to conclude that S.R.G. was the individual who vandalized the automobile. Accordingly, we reverse the adjudication of delinquency.

Reversed.

STRINGER, J., and SCHEB, JOHN M., Senior Judge, concur.


author: KELLY, Judge.

text:
    Celeata WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3723.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2003.
    James Marion Moorman, Public Defender, and Judith Ellis, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Celeata Williamson was convicted of fifty-seven counts of grand theft and one count of scheming to defraud and sentenced to concurrent terms of five years’ imprisonment on all charges. We agree with Williamson, and the State concedes, that convicting and sentencing her on both the scheming to defraud and the grand theft charges, which formed the basis of the scheming to defraud charge, constituted double jeopardy. See Kipping v. State, 702 So.2d 578 (Fla. 2d DCA 1997); Cherry v. State, 592 So.2d 292 (Fla. 2d DCA 1991). We therefore vacate Williamson’s convictions and sentences for grand theft and affirm her conviction for scheming to defraud.

Williamson also challenges the sentence she received on the scheming to defraud conviction. Williamson contends that the trial court erred when it sentenced her under the Criminal Punishment Code. Because a scheme to defraud is a true continuing offense, Williamson’s sentence is controlled by section 921.0027, Florida Statutes (2000), which applies to felonies committed on or after October 1, 1998, and provides that felonies with continuing dates of enterprise are to be sentenced under the sentencing laws in effect on the beginning date of the criminal activity. Williamson began her scheme to defraud in 1995, at which time the 1994 guidelines were in effect. Therefore, Williamson should be resentenced under the 1994 guidelines. On remand, the trial court is precluded from scoring the grand theft offenses as convictions for purposes of resentencing. See Wanner v. State, 667 So.2d 427 (Fla. 2d DCA 1996).

Affirmed in part, vacated in part, reversed in part, and remanded for resen-tencing with directions.

FULMER and DAVIS, JJ., concur.

      . Because Williamson’s offense is a true continuing offense, the date of her last overt act is considered to be the date of offense. Young v. Moore, 820 So.2d 901, 903 n. 4 (Fla.2002). That date is October 31, 2000, which is "on or after October 1, 1998.” Thus, section 921.0027 applies.


text:
    Thomas STATHAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-932.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2003.
   KELLY, Judge.

Thomas Stathas appeals the summary denial of his motion filed pursuant to Florida Rules of Criminal Procedure 3.850 and 3.800(a). We affirm the first claim without discussion, and we affirm the second claim without prejudice to any right Stathas may have to refile a facially sufficient motion for prison credit.

On October 30, 1991, Stathas was sentenced to fifteen years in prison followed by five years’ probation in case 91-11524 pursuant to a plea agreement with the State. On that same day, he was also sentenced in case 90-18646. Although it is not clear from the record on appeal or Stathas’ motion what sentence he originally received in case 90-18646, it appears that he received a probationary split sentence in that ease as well. Nonetheless, Stathas was released early from prison due to gain time to begin his probation. On May 19, 1998, he was resentenced to five years in prison for violating his probation in both cases.

Stathas alleged that he is entitled to a total of 399 days of credit and that the trial court must award such credit by court order. It appears that he is referring to his entitlement to prison credit for the time he served on the prison portions of his split sentences before he began serving the probation portions. See Wiggins v. State, 817 So.2d 1016 (Fla. 2d DCA 2002). However, Stathas’ claim is facially insufficient because he did not allege that his entitlement to relief is apparent from the face of the record, nor did he allege how and where his entitlement to relief is demonstrated from the record. See Jones v. State, 735 So.2d 541 (Fla. 2d DCA 1999). Therefore, we affirm the trial court’s order of denial without prejudice to any right Stathas may have to refíle a facially sufficient motion for prison credit under rule 3.800(a). See id. at 542.

Affirmed.

STRINGER and SILBERMAN, JJ., concur.

      . The original judgment and sentence in case 90-18646 is not in the record. However, the violation of probation plea form for case 91-11524 indicates that Stathas also violated probation in case 90-18646, and a judgment and sentence in case 90-18646 dated May 19, 1993, indicates that his probation was revoked and that he was resentenced to five years in prison on that date.