author: McMILLAN, Presiding Judge. COBB, Judge,

text:
    Ronald Lamar BOWMAN v. STATE.
    CR-01-1977.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.
    Rehearing Denied May 16, 2003.
    Certiorari Denied Sept. 19, 2003 Alabama Supreme Court 1021408.
    Stacy Lott Reed, Montgomery; and William Wayne Whatley, Jr., Montgomery, for appéllant.
    William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BASCHAB, SHAW, and WISE, JJ., concur. COBB, J., concurs in the result, with opinion.

COBB, Judge,

concurring in the result.

The appellant, Ronald Lamar Bowman, was convicted of murder made capital because it was committed during the course of a robbery, a violation of § 13A-5-40(a)(2), Ala.Code 1975. He was sentenced to life in prison without parole. Among other issues, Bowman contends on appeal that the trial court abused its discretion by denying his challenge for cause of prospective juror L.J.L. The majority ruled in Part III of its unpublished memorandum that the trial court’s denial of Bowman’s challenge for cause against L.J.L. was not error. I disagree with the majority’s discussion in Part III of its unpublished memorandum.

Prospective juror L.J.L. testified during voir dire that she knew the district attorney from “working with him” (R. 201); that she knew Agent Johnny Tubbs, who was identified as an individual who would be sitting at the prosecution table during the trial; that she knew Bowman from her employment with the sheriffs department; and that she knew various members of both the victim’s and Bowman’s families. L.J.L. stated that none of this knowledge would prevent her from being fair and impartial and rendering a fair and just verdict.

The record also includes the following voir dire examination of prospective juror L.J.L.:

“THE COURT: Ms. [L.J.L.], you may have indicated in your conversations with the Court and these lawyers that you know members of [the victim’s] family, that you may have heard or read something about this case. We just have you back here to discuss that information. Are you related to any members of the family, or you know them?
“PROSPECTIVE JUROR [L.J.L.]: Yeah, I know some of the family members.
“THE COURT: How close are you to them?
“PROSPECTIVE JUROR [L.J.L.]: Just around the neighborhood.
“THE COURT: Did you happen to visit the family’s house after the incident or during the funeral?
“PROSPECTIVE JUROR [L.J.L.]: No, sir.
“THE COURT: Have you discussed with any of them the facts of this ease?
“PROSPECTIVE JUROR [L.J.L.]: No, sir.
“THE COURT: Do you know anything about the facts of this case?
“ “PROSPECTIVE JUROR [L.J.L.]: Nothing but what I read.
“THE COURT: Do you recall what that may have been?
“PROSPECTIVE JUROR [L.J.L.]: I don’t remember.
“THE COURT: We know at some point you may work in the court system with your relationship with [the Department of Human Resources]. Have you formed an opinion one way or the other about the innocence or guilt of Mr. Bowman?
“PROSPECTIVE JUROR [L.J.L.]: Uh-uh.
“THE COURT: Do you think you would be able to sit in this case, and listen to the evidence, and base your verdict solely on the evidence in this case?
“PROSPECTIVE JUROR [L.J.L.]: Yeah.
“THE COURT: Do you have a problem being fair to the State of Alabama?
“PROSPECTIVE JUROR [L.J.L.]: Uh-uh.
“THE COURT: Do you have a problem being fair to Mr. Bowman?
“PROSPECTIVE JUROR [L.J.L.]: No.
“THE COURT: State.
“MR. HENRY [prosecutor]: No questions.
“MR. WHATLEY [defense counsel]: You’d indicated you were, I think, one of two people out there that said you knew Mr. Bowman; is that correct?
“PROSPECTIVE JUROR [L.J.LJ: I know him from when I worked with the sheriffs department?
“MR. WHATLEY: What did you know about him from working with the sheriffs department?
“PROSPECTIVE JUROR [L.J.L.]: I just know he was one of the inmates at the county. That’s where I worked.
“MR. WHATLEY: Where did you work at the county that you would know who was an inmate, who was locked up?
“PROSPECTIVE JUROR [L.J.L.]: Right across the street at the jail.
“MR. WHATLEY: What did you do over there?
“PROSPECTIVE JUROR [L.J.L.]: I was a jailer.
“MR. WHATLEY: Okay. So you processed them in and out?
“PROSPECTIVE JUROR [L.J.L.]: Uh-huh.
“MR. WHATLEY: You weren’t involved in the investigations or anything?
“PROSPECTIVE JUROR [L.J.L.]: Uh-uh.
“MR. WHATLEY: Okay. And you know — did you know why Mr. Bowman was locked up over there? Did you know what his charge was?
“PROSPECTIVE JUROR [L.J.L.]: I don’t even remember the paperwork.
“MR. WHATLEY: But aside from whether you knew the paperwork or not, do you remember why he was locked up? What charges got him locked up?
“PROSPECTIVE JUROR [L.J.L.]: Uh-uh. I don’t even remember.
“MR. WHATLEY: You just remember him?
“PROSPECTIVE JUROR [L.J.L.]: I just remember him.
“MR. WHATLEY: And you went to school with Angela [Bowman’s wife].
“PROSPECTIVE JUROR [L.J.L.]: We went to Wallace [State].
“MR. WHATLEY: So would 1996 have been the last time you had any contact with Angela?
“PROSPECTIVE JUROR [L.J.L.]: No. Actually when she was over, as well.
“MR. WHATLEY: Okay. So you saw her when she was in the jail, too?
“PROSPECTIVE JUROR [L.J.L.]: Yeah.
“MR. WHATLEY: And that would have been at the latest in 1999?
“PROSPECTIVE JUROR [L.J.L.]: Uh-huh.
“MR. WHATLEY: Okay. You know more about a lot of this than most of those folks sitting out there, you realize?
“PROSPECTIVE JUROR [L.J.L.]: Yeah.
“MR. WHATLEY: With that knowledge, can you say that it wouldn’t affect you if you were selected as a juror in this case, in all complete honesty? I mean, that’s what we’re here about.
“PROSPECTIVE JUROR [L.J.L.]: Truthfully, it would affect me.
“MR. WHATLEY: Yeah.
“PROSPECTIVE JUROR [L.J.L.]: It would.
“MR. WHATLEY: Kind of hard for it not to, given—
“PROSPECTIVE JUROR [L.J.L.]: Yeah. Right, right.
“MR. WHATLEY: — that you both (sic) Angela, and you knew Mr. Bowman, and you knew why he was there.
“PROSPECTIVE JUROR [L.J.L.]: Right.
“MR. WHATLEY: You know we’re all here about trying to be fair to both sides.
“PROSPECTIVE JUROR [L.J.L.]: Right.
“MR. WHATLEY: Would it be difficult for you to honestly be fair to Mr. Bowman in this case, with what you already knew before you got there?
“ “PROSPECTIVE JUROR [L.J.L.]: It would be difficult. Yeah, it would.
“MR. WHATLEY: Can you honestly say that you can set aside those feelings that you would have based on this prior knowledge, and follow the law, and give him that full presumption of innocence knowing everything that you know about this case?
“PROSPECTIVE JUROR [L.J.L.]: I could. I could, yeah.
“MR. WHATLEY: You could set it aside?
“PROSPECTIVE JUROR [L.J.L.]: Yeah.
“MR. WHATLEY: All right. Thanks.
“THE COURT: Is there a challenge?
“MR. WHATLEY: Sure, Judge, I’ll challenge her for cause, and you’ll deny it because she didn’t answer the questions the way she needed to. She did everything but, and she came as close as she could. And I would challenge for cause, and I know you’ll deny it.
“THE COURT: I’ll deny it.”

(R. 385-91.)(Emphasis added).

“ ‘ “The test to be applied [in qualifying a prospective juror] is probable prejudice. Probable prejudice for any reason disqualifies a prospective juror. Qualification of a juror is a matter within the discretion of the trial court and, on appeal, this court will look to the questions propounded and the answers given by the prospective juror to see if this discretion was properly exercised.” Alabama Power Co. v. Henderson, 342 So.2d 323, 327 (Ala.1977).’ ”

Daily v. State, 828 So.2d 340, 342-43 (Ala.2001).

Based on the questions propounded to L.J.L., and the answers provided by L.J.L. to those questions, I believe that probable prejudice was established requiring that L.J.L. be disqualified for cause.

L.J.L. stated that she knew more about the case than the other potential jurors. She obtained her knowledge because she knew the victim, she knew members of the victim’s family, she knew the defendant, she knew the defendant’s wife, she knew members of defendant’s family, and she knew members of the defendant’s wife’s family. She also became familiar with the case because she was an employee at the jail. L.J.L. also testified that she knew police officers involved in the case, and she stated that she knew the district attorney from “working with him.” Twice in response to questioning by the defense on voir dire, L.J.L. stated that the knowledge that she already had about the case would make it difficult for her to be fair to Mr. Bowman.

“Even if a juror eventually states that he or she could render a verdict exclusively upon the evidence, the simple affirmative response does not necessarily absolve that juror of probable prejudice.” Roberts v. Hutchins, 613 So.2d 348, 349 (Ala.1993), citing Dixon v. Hardey, 591 So.2d 3 (Ala.l991)(showing of prejudice not required to obtain reversal after erroneous denial of challenge for cause), abrogated by Bethea v. Springhill Mem’l Hosp., 833 So.2d 1 (Ala.2002)(“harmless-error” analysis applies before reversing a judgment after an erroneous denial of a challenge for cause.) Despite LJ.L’s ultimate answer that she would be fair, I believe this juror’s ties with law enforcement — being the local jailer while Bowman was incarcerated, knowing the police involved, and “working with” the district attorney — and her connection with the families belie her ultimate answers that she would be fair. In my opinion the voir dire questions and answers suggested a familiarity with the case indicating that L.J.L.’s bias was more probable than possible. Thus, under the facts of this case, regardless of L.J.L.’s answers that she could set aside her feelings, I believe that the defense challenge for cause should have been granted.

Moreover, although I believe the challenge for cause should have been granted for the reasons stated above, neither the trial court nor the prosecution presented any follow-up questions to what was, at the very least, conflicting statements, given by L.J.L.

“ ‘ “ ‘[Ojnce a [prospective] juror makes an initial statement that is vague, ambiguous, equivocal, uncertain or unclear or that shows confusion, it is the trial judge’s function to question the juror further, so as to ascertain whether the juror can be impartial.’ Knop v. McCain, 561 So.2d 229, 234 (Ala.1989).” ’ ”

Hoobler v. State, 668 So.2d 905, 908 (Ala.Crim.App.l995)(quoting Ford v. State, 628 So.2d 1068, 1070 (Ala.Crim.App.1993)). Thus, because the conflicting responses left the question of L.J.L.’s bias unclear, the prosecutor or the judge should have inquired further into L.J.L.’s potential bias.

“ ‘... We hold that it is not defense counsel’s obligation to rehabilitate a juror who has responded to questions in a manner that would sustain a challenge for cause. The appropriate procedure, when the record preliminarily establishes that a juror’s views, could prevent or substantially impair his or her duties, is for either the prosecutor or the judge to make sure the prospective juror can be an impartial member of the jury.’ ”

Hall v. State, 820 So.2d 113, 125-26 (Ala.Crim.App.l999)(Florida Supreme Court cited “for the proposition that having the trial court rehabilitate jurors is a practice favored by reviewing courts.”)(quoting Bryant v. State, 601 So.2d 529, 532 (Fla.1992)).

Notwithstanding my opinion expressed above, the record in this case fails to disclose whether L.J.L. was struck by a peremptory challenge, and, if so, by whom. Moreover, there has been no assertion that the defense suffered prejudice by expending a peremptory challenge to remove L.J.L. from the jury venire, if it did, nor has there been any suggestion that the defense suffered prejudice from L.J.L.’s presence on the jury.

Thus, although I believe L.J.L. should have been removed from the venire for cause, I am compelled to concur as to the result.

“The erroneous denial of a challenge for cause is harmless error, and as ‘long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that Sixth Amendment was violated.’ Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).”

K.R.B. v. State, 834 So.2d 826, 830 (Ala.Crim.App.2001) (Cobb, J., concurring in part, dissenting in part, and concurring, in the result).

Based on the foregoing, I concur only in the result reached as to Part III of the unpublished memorandum. I concur as to the remaining issues.

      . Though unclear, the record also contains a remark suggesting that L.J.L. had some association with law enforcement through her past employment with the Department of Human Resources.


source: Caselaw Access Project

author: PER CURIAM. BASCHAB, Judge,

license: Public Domain

text:
    Phillip Lewis CHANCE v. BOARD OF PARDONS AND PAROLES.
    CR-02-0232.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.
    Rehearing Denied May 23, 2003.
    Certiorari Denied Sept. 19, 2003 Alabama Supreme Court 1021486.
    Phillip Lewis Chance, pro se.
    Gregory O. Griffin, Sr., chief counsel; and Hugh Davis and Steven M. Sirmon, asst, attys. gen., Board of Pardons and Paroles.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ„ concur; BASCHAB, J., concurs specially, with opinion.

BASCHAB, Judge,

concurring specially.

I concur based on the current state of the law. However, I write specially to urge a change in the law. See Bostwick v. State, 865 So.2d 1245, 1247 (Ala.Crim.App.2003) (Baschab, J., concurring specially).


author: McMILLAN, Presiding Judge.

text:
    Stanley MURRAY v. STATE.
    CR-02-0318.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.
    Opinion on Return to Remand Aug. 29, 2003.

      Stanley Clay Murray, pro se.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   McMILLAN, Presiding Judge.

The appellant, Stanley Clay Murray, filed a Rule 32, Ala. R.Crim. P., petition, attacking his 1981 conviction for first-degree receiving stolen property. He was sentenced to two years’ imprisonment in the state penitentiary. Murray did not appeal his conviction.

In his petition, Murray claimed that he was denied his right to counsel during his sentencing proceedings. The State moved to dismiss the petition, arguing that Murray’s petition was time-barred. The trial court then summarily denied the petition on the grounds argued by the State.

It is unclear from the record whether Murray either was represented by counsel or had waived his right to counsel at the time of his sentencing proceedings. Moreover, the State has requested that we remand this case to the trial court for that issue to be determined. Therefore, this case is remanded to the Limestone Circuit Court for that court to determine whether Murray was represented by counsel during his sentencing proceedings or whether he had waived his right to counsel at that time. Due return shall be made to this Court within 49 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

On Return to Remand

McMILLAN, Presiding Judge.

This cause was remanded to the Limestone Circuit Court for that court to address Stanley Clay Murray’s claim that he was denied his right to counsel during sentencing proceedings. The circuit court has now filed its return, including an order, which states in part:
“This Court has reviewed the file in the case, (attached hereto and incorporated by reference). The defendant was represented at trial and was convicted on September 2, 1981. On November 30, 1981, his trial counsel withdrew, having been appointed Assistant District Attorney for Limestone County. The motion to withdraw was granted on the same day. On May 19, 1982, the defendant was sentenced. There is no record which indicates defendant was appointed new trial counsel upon the withdrawal of his trial counsel, nor are there any records which indicate that counsel made an appearance for the record.
“The official court reporters in this county searched the archives, of Limestone County and the transcript of the above proceedings was not found. The Court Reporter at the time of the sentencing was Ted Hicks. Mr. Ted Hicks is now the Official Court Reporter for the Honorable James Moore, Circuit Court Judge of Fayette County, and has not'been the official court reporter for Limestone County since 1985. At the request of this Court, Mr. Hicks checked his records, but was unable to find the transcript in this case, the case being over 20 years old and records having been purged. This Court cannot determine whether or not the defendant waived counsel at sentencing or was represented by counsel at sentencing.”

A defendant’s right to counsel in felony cases is absolute. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Rule 6.1, Ala. R.Crim. P. Although the defendant may waive that right, the defendant’s waiver of counsel must affirmatively appear on the record. “If an accused waives his right to counsel, that waiver must be intelligently and understandingly made and cannot be presumed from a silent record.” Lake v. City of Birmingham, 390 So.2d 36, 37 (Ala.Crim.App.1980). See also Pratt v. State, 851 So.2d 142 (Ala.Crim.App.2002).

Here, as the trial court noted, the record is silent as to whether Murray was represented by counsel at the sentencing proceedings or whether he waived his right to counsel. Because it is unclear from the record whether Murray was, as he claims, denied his right to counsel during sentencing proceedings, we must remand this case for the trial court to hold a new sentencing hearing and to appoint counsel to represent Murray, if he is indigent. Due return shall be made to this Court within 49 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


author: STONE, J.

text:
    Femesha FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1536.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Rehearing Denied July 14, 2004.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Foster, charged with the crimes of poisoning and grand theft, appeals her conviction of the non-existent crime of attempted poisoning. Once an attempt to poison is proven, under section 859.01, Florida Statutes, the elements of the crime of poisoning are also established. Therefore, “attempted poisoning” is not a crime. We reverse Foster’s conviction of attempted poisoning and remand for a new trial.

In the course of investigating thefts in a Wal-Mart optometry department, a security officer installed a hidden camera. On the day of the incident, the victim, the optometrist, purchased lunch and brought it back to his office to eat. Upon finishing, the victim left an open can of Dr. Pepper on his desk. The video camera captured Foster shaking rat poison from a plastic bag into the Dr. Pepper can.

Upon returning to his office, the victim took a sip, noticed it contained suspicious-looking granules, and was taken to the hospital. A chemist tested the residue from the can and found that it contained the same active ingredient, brodifacoum, as rat poison. Foster confessed, stating that she only intended to make the optometrist temporarily sick.

The trial court correctly instructed the jury on the elements of the crime of poisoning under section 859.01, Florida Statutes, stating:

Before you can find the defendant guilty of poisoning food or water the State must prove the following four elements beyond a reasonable doubt. Element number one is Femesha Foster mingled a substance with food or drink. Element number two, that the substance was poison. Element number three, Femesha Foster knew that the substance was poison. Element number four, Femesha Foster did so with the intent to kill or injure another person.

Patently, the statutory definition of the crime of poisoning includes the attempt to poison, as section 859.01 requires only proof that the defendant knowingly mingled poison with food or drink with the intent to kill or injure. A defendant may not be convicted of attempting to commit a crime when the statute setting forth the substantive violation expressly includes the offense of attempt. Fredericks v. State, 675 So.2d 989 (Fla. 1st DCA 1996). Worded differently, a defendant may not be convicted of the separate offense of attempt when proving an attempt would also establish the elements of the substantive crime. State v. Sykes, 434 So.2d 325, 327 (Fla.1983). Here, once the overt act of mingling poison with drink was accomplished, the substantive crime of poisoning was complete. Although Foster’s counsel objected, the trial court instructed the jury on the “lesser-included offense” of attempted poisoning and included it on the verdict form.

In Sykes, the applicable statute, section 812.014, Florida Statutes, provided that “[a] person is guilty of theft if he obtains or uses, or endeavors to obtain or to use, the property of another.... ” § 812.014, Fla. Stat. (1977). The court agreed with the appellant, finding that the language “endeavors to obtain or use” expressly “reveals on its face a legislative intent to define theft as including the attempt to commit theft.” Sykes, 434 So.2d at 327. Therefore, the court found there was no such offense as attempted second-degree grand theft. Id. at 328. See Jordan v. State, 438 So.2d 825, 826 (Fla.l983)(holding that the appellant had been convicted of the non-existent crime of attempting to resist an officer with violence, based on the words “by offering or doing violence” in the statute); see also Adams v. Murphy, 394 So.2d 411, 413 (Fla.l981)(holding that the offense of perjury is completed by the overt act of giving a false statement; therefore, there is no crime of attempted perjury); Sumpter v. State, 11 Fla. 247 (1866).

Further, the Florida Supreme Court has recognized that a defendant, who has been convicted of a non-existent offense with elements identical to the originally charged offense, is not prevented from being re-tried on the original charge by the doctrine of double jeopardy. Jordan, 438 So.2d at 826.

We, therefore, reverse the conviction and sentence and remand for a new trial on the poisoning count.

KLEIN and TAYLOR, JJ., concur.


author: PER CURIAM.

text:
    Emran IMAMI, M.D., Appellant, v. UNIVERSITY OF FLORIDA, Appellee.
    No. 1D03-5006.
    District Court of Appeal of Florida, First District.
    May 21, 2004.
    Rehearing Denied July 2, 2004.
    Mark S. Levine and H.B. Stivers of Levine & Stivers, Tallahassee, for Appellant.
    Pamela J. Bernard, General Counsel, University of Florida, Gainesville; Richard C. McCrea and Cynthia L. May of Zinober & McCrea, Tampa, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s responses to the Court’s orders of December 18, 2003, and February 19, 2004, the Court has determined that the April 13, 2004, letter does not constitute a final order as defined by section 120.52(7), Florida Statutes, because it has not been filed with the agency clerk. See Hill v. Division of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997) (describing the essential attributes of reviewable final orders entered under the Administrative Procedure Act, including filing of order with agency clerk). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BOOTH, POLSTON, and HAWKES, JJ., concur.


text:
    Melinda BRUTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1514.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Rehearing Denied July 14, 2004.

      Melinda Bruton, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the summary denial of her motion for postconviction relief. She argues that her trial counsel was ineffective for failing to file a motion to dismiss a grand theft count that was a necessarily lesser included offense of another count for exploitation of an elderly person. We agree and reverse.

The case stemmed from an incident where the defendant wore a nurse’s uniform and pretended to be a caregiver at a hospital. She disconnected the victim from medical apparatus and took her to the bathroom where she stole the victim’s diamond ring. The victim’s roommate positively identified the defendant as the person who took the ring.

The State charged the defendant with burglary of a structure with a battery, exploitation of an elderly person, and third degree grand theft. She entered an open plea to the court. The court sentenced her as a habitual offender to 25 years in prison on the burglary, and concurrent terms of 10 years on the exploitation and grand theft charges.

She filed a belated direct appeal, which was consolidated with a direct appeal from the revocation of probation in a separate case. She raised only the issue of her habitual offender sentence in that appeal. This court affirmed. See Bruton v. State, 799 So.2d 1056 (Fla. 4th DCA 2001).

She then filed a timely rule 3.850 motion raising three issues, including counsel’s failure to file a motion to dismiss the grand theft count based on double jeopardy grounds, which the trial court denied. She relies on Thomason v. State, 790 So.2d 1189 (Fla. 4th DCA 2001), to support her argument on this issue. The State acknowledges the legitimacy of the double jeopardy issue, but suggests that the trial court properly denied the motion because Thomason had not been decided at the time of her conviction and sentence. We disagree.

In Thomason, this court reversed a conviction for grand theft where the defendant had also been convicted of exploitation of an elderly person. Because the two crimes involved one act of taking the same property, convictions on both counts violated double jeopardy. The underlying issue is the same in this case. The grand theft and exploitation charges involve the taking of the same property.

While Thomason had not yet been decided, this is an issue that trial counsel should have recognized. Failure to do so rendered counsel’s performance ineffective. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We therefore reverse and remand the case to the trial court to vacate the grand theft conviction and for resentencing.

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


text:
    Rachel GARREAU, Appellant, v. CAMELOT GARDENS HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 4D03-3045.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Herbert B. Dell, Fort Lauderdale, for appellant.
    Marc A. Halpern of Hyman, Kaplan, Ganguzza, Spector & Mars, P.A., Miami, for appellee.
   PER CURIAM.

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

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


author: SAWAYA, C.J.

text:
    G.E.L. CORPORATION, Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., Appellees.
    No. 5D03-13.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    Rehearing Denied July 1, 2004.

      Dennis Wells of Webb, Wells, & Williams, P.A., Altamonte Springs, for Appellant.
    Teri L. Donaldson, General Counsel and W. Douglas Beason, Assistant General Counsel, Department of Environmental Protection, Tallahassee, for Appellee Department of Environmental Protection.
    William E. Reischmann, Catherine D. Reischmann and Virginia Cassady of Sten-strom, McIntosh, Colbert, Whigham, Reischmann & Partlow, P.A., Sanford, for Appellee Orange City.
   SAWAYA, C.J.

We are here confronted with the arduous task of interpreting and applying certain provisions of Florida’s Administrative Procedure Act. Specifically, we address those provisions relating to awards of attorney’s fees and agency jurisdiction to correct what it considers an erroneous legal ruling by an Administrative Law Judge [ALJ] when the ruling concerns an area that may not fall within the umbra of the agency’s “substantive jurisdiction.” The issues we must resolve are: 1) whether an ALJ has jurisdiction to award attorney’s fees under section 120.595, Florida Statutes (2000), when a notice of dismissal is filed before a formal hearing on the merits; and 2) whether an agency has “substantive jurisdiction” under section 120.57(i)(0, Florida Statutes (2000), to correct an erroneous legal ruling made by an ALJ regarding a party’s entitlement to attorney’s fees.

We will dispense with a discussion of the underlying facts because they are not necessary to the resolution of the issues; rather, the procedural history of this case will be the focal point of the discussion that follows. Thereafter we will discuss each issue in the order presented.

Procedural Background

G.E.L. Corporation [GEL] applied to the Florida Department of Environmental Protection [DEP] to renew its permit for operation of a construction and demolition debris facility in Orange City, Florida. Shortly after DEP issued a formal notice that it intended to issue the requested permit, Orange City filed a petition for a formal administrative hearing to challenge issuance of the permit. DEP referred the petition to the Department of Administrative Hearings, which assigned an ALJ to hear the matter. The ALJ issued a notice setting the final hearing date for June 3, 2002. In May, DEP issued two amended notices that it intended to issue the permit and, on the same day that DEP filed the second amended notice, GEL filed its motion for attorney’s fees pursuant to section 120.595, Florida Statutes (2000). Immediately thereafter, and prior to the hearing date, Orange City filed its notice of voluntary dismissal. Orange City then filed a notice suggesting that DEP did not have subject matter jurisdiction to hear GEL’s petition for attorney’s fees.

The ALJ commenced a hearing on the petition for fees and, after several witnesses testified, the hearing was continued until a later date. A little over a month later, having never reconvened the hearing, the ALJ entered a recommended order of dismissal. In the order, the ALJ held that pursuant to section 120.595, a full evidentiary hearing on the merits of the petition filed by Orange City was a jurisdictional prerequisite to an award of fees under the statute. Because Orange City dismissed the petition before a full eviden-tiary hearing was completed, the ALJ reasoned that he did not have jurisdiction to proceed with the petition for attorney’s fees. DEP subsequently adopted the ALJ’s recommended final order of dismissal, including the ALJ’s conclusion of law regarding jurisdiction. In its final order of dismissal, DEP stated that in its opinion, the ALJ was wrong as a matter of law in ruling that a full evidentiary hearing on the merits was a jurisdictional prerequisite to an award of fees under section 120.595. Nevertheless, DEP held that it was powerless to correct the error because, pursuant to section 120.57(1)©, Florida Statutes (2000), the issue of attorney’s fees did not fall within its substantive jurisdiction. It is from this order and these rulings that the issues we are asked to resolve emanate. The first issue is whether the ALJ was correct in ruling that a full evidentiary hearing is a jurisdictional prerequisite to an .award of fees under section 120.595.

A Full Evidentiary Hearing Is Not A Jurisdictional Prerequisite To An Award Of Fees Under Section 120.595.

The ALJ did not recommence the hearing regarding GEL’s petition for attorney’s fees because he concluded that the dismissal of the underlying petition deprived him of jurisdiction, and he could proceed no further. This conclusion is premised on the provisions of sections 120.595(l)(b) and (c), Florida Statutes (2000), which state in pertinent part:

(b) The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney’s fee to the prevailing party only where the non-prevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose.
(c) In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose....

The pertinent language in the above-quoted paragraphs is that which refers to proceedings under section 120.57(1). Section 120.57(1) provides in pertinent part that “an administrative law judge ... shall conduct all hearings under this subsection.” § 120.57(l)(a), Fla. Stat. (2000). Reading the provisions of sections 120.595 and 120.57 together, the ALJ came to the conclusion that a full evidentiary hearing adjudicating the merits of the underlying issues is a jurisdictional prerequisite to. an award of fees under section 120.595. Orange City, advocating in favor of its interests as the potential payor of any award of fees, asserts the correctness of this ruling. While it agrees that sections 120.57(1) and 120.595(l)(b) should be considered together, GEL contends that a final order in a “proceeding” may refer to an order of dismissal and should not be restricted to an order rendered after a hearing on the merits of Orange City’s petition. Hence, we must analyze these statutes and determine whether the terms “proceeding” and “hearing” are synonymous and refer to a full evidentiary hearing on the merits of the petition or whether “proceeding” connotes a different meaning and refers to the filing of the petition and order of dismissal prior to an evidentiary hearing.

Our ultimate goal as we begin our task of analyzing and construing the pertinent statutory provisions is to give effect to legislative intent. BellSouth Telecomms., Inc. v. Meeks, 868 So.2d 287 (Fla.2003). We begin by first considering the language of the statute. If the language is clear and unambiguous, we must apply the statutory provisions according to their plain meaning and as the Legislature wrote them. Id. If, however, the language is ambiguous, we must apply time-honored rules of statutory construction to divine legislative intent. Id.

A dictionary may be utilized to ascertain the plain meaning of a particular term. Rollins v. Pizzarelli, 761 So.2d 294 (Fla.2000). Random House Dictionary has defined the term “proceeding” as “a legal step or measure: to institute proceedings against a person.” The Random House Dictionary of the English Language 1542 (2d ed.1987) (unabridged) (emphasis added). The term “hearing” is defined as “an instance or a session in which testimony and arguments are presented, esp. before an official, as a judge in a lawsuit.” Id. at 882. Hence a “proceeding” generally refers to the initiation of the judicial process, typically by filing a complaint or petition and may include the filing of a notice of dismissal. See Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970) (holding that the fifing of a notice of dismissal by the plaintiff constitutes a “proceeding.”). The term “hearing” generally means that part of the judicial process where evidence is presented and arguments are made to the court by the parties. Therefore, the two terms as they are written in the statutes, while not mutually repugnant, are not consistent and unambiguous. It is, therefore, not clear from the provisions of the statutes whether a full evidentiary “hearing” is a jurisdictional prerequisite to an award of fees under section 120.595. We therefore turn for guidance to the rules of statutory construction.

A basic tenet of statutory construction is that we construe statutes in a manner that does not lead to an absurd or ridiculous result. City of Boca Raton v. Gidman, 440 So.2d 1277 (Fla.1983); Pavolini v. Bird, 769 So.2d 410 (Fla. 5th DCA 2000), review denied, 790 So.2d 1102 (Fla.2001). Another maxim is that we should strive to construe related statutes in harmony with one another. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452 (Fla.1992). If that is not possible, and when “two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent.” McKendry v. State, 641 So.2d 45, 46 (Fla.1994) (citing Sharer v. Hotel Corp. of Am., 144 So.2d 813 (Fla.1962); State v. Ross, 447 So.2d 1380, 1382 (Fla. 4th DCA), re-meto denied, 456 So.2d 1182 (Fla.1984)); see also State v. Parsons, 569 So.2d 437 (Fla.1990). Moreover, “a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.” McKendry, 641 So.2d at 46; see Barnett Banks, Inc. v. Department of Revenue, 738 So.2d 502 (Fla. 1st DCA 1999); Hudson v. State, 711 So.2d 244, 247 (Fla. 1st DCA 1998); see also State v. Raydo, 713 So.2d 996 (Fla.1998).

To construe the statutes as Orange City suggests would promote an unjust outcome in many instances. Future petitioners in contested permit proceedings could wait until immediately before a scheduled hearing to file a notice of voluntary dismissal and unjustly avoid the sanction of an attorney’s fee pursuant to section 120.595. This would allow petitioners to file petitions to delay and cause unnecessary cost and expense to the other parties forced to prepare for a hearing on the merits that never takes place. Moreover, this would lead to an increase in the filing of meritless and frivolous petitions. In the order under review in the instant case, the Secretary of DEP expressed these same concerns:

I am troubled by the potential impact of this ruling of the ALJ on the environmental permitting process in this state. Based on this precedent, future petitioners in contested permit proceedings may avoid any possible liability for having to pay attorney’s fees and costs under § 120.595(1) by simply filing notices of voluntary dismissals of their petitions immediately prior to the dates formal hearings are scheduled. This scenario could result in an increase in permit challenges initiated for the primary purpose of causing delays and increase the costs of the permit application review process.

We cannot conceive that the Legislature intended such absurd and ridiculous results when it enacted sections 120.595(1) and 120.57(1). Accordingly, we must reject the interpretation adopted by the ALJ and advanced by Orange City as not being in accord with legislative intent. Moreover, we note that under the rules of statutory construction, section 120.595(1), which contains the term “proceeding” and concerns the specific subject of attorney’s fees, was enacted after section 120.57(1), which contains the term “hearing” and concerns the more generalized subject of contested agency actions. Therefore, the term “proceeding” utilized in section 120.595, as the latter-enacted, more specific statutory provision, prevails over the more general provision of section 120.57, which contains the term “hearing.” Thus, the filing of a petition and subsequent order of dismissal pri- or to a hearing on the merits is a proceeding and is sufficient to trigger application of the attorney’s fees provisions of section 120.595(1). This construction brings the provisions of both statutes in harmony with one another and expresses the legislative intent that originally animated the attorney’s fee provisions of section 120.595.

Recent amendments to section 57.105, Florida Statutes — another attorney’s fee statute — lend further support to our conclusion. In 2003, the Legislature amended the provisions of section 57.105 to include the following:

In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney’s fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party’s attorney or qualified representative in the same manner and upon the same basis as provided in subsections (l)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined rá s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a non-prevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection.

§ 57.105(5), Fla. Stat. (2003) (emphasis added). The highlighted provision was enacted “to address two administrative decisions in which the ALJ had ruled that he did not have statutory authority to enter a recommended order addressing entitlement to attorney’s fees and costs when the underlying matter has been voluntarily dismissed.”

Our consideration of the newly enacted provisions of section 57.105 is fitting because the courts have consistently held that subsequently enacted legislation may indicate the Legislature’s intent to clarify the law rather than change it. This rule of statutory construction finds particular acceptance in instances where the subsequently enacted legislation comes soon after controversies arise over the meaning of an existing statute or soon after judicial interpretations of an existing statute are rendered. Accordingly, the legislative response to the interpretation given section 120.595 in the administrative decisions just referred to clearly indicates that the Legislature did not agree 'with those interpretations and sought to clarify the meaning of the statute through the newly enacted provision to section 57.105.

We conclude the ALJ clearly erred when he ruled that dismissal of the petition prior to an adjudicatory hearing deprived him of jurisdiction to award fees under section 120.595(1). The next issue we must address is whether DEP had substantive jurisdiction to correct the error.

An Agency Does Not Have Substantive Jurisdiction Over The Legal Issue Relating To Attorney’s Fees Under Section 120.595

In its order, DEP acknowledged that the ALJ erred in ruling he did not have jurisdiction to hear the petition for attorney’s fees. However, DEP held that it was powerless to correct that decision because it did not have substantive jurisdiction to do so. DEP came to this conclusion based on section 120.57(1)©, Florida Statutes (2000), which provides in pertinent part:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.

(Emphasis added).

DEP held that its substantive jurisdiction extends over matters relating to environmental issues and not technical matters of law concerning jurisdictional issues that arise under statutory provisions relating to awards of attorney’s fees. DEP is correct. See Doyle v. Department of Bus. Regulation, 794 So.2d 686 (Fla. 1st DCA 2001) (holding that an award of attorney’s fees under a particular statute does not fall within the field of expertise of an agency). In Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001), the court was confronted with a similar issue. There, the petitioner requested a permit from DEP to build a storm water management system. When DEP issued a notice that it intended to issue the permit, a neighbor of the petitioner requested an administrative hearing. The doctrine of collateral estoppel became an issue in the proceedings and formed a basis for the ALJ’s recommended order denying the permit. The Secretary of DEP issued his final order adopting the recommended order with reservations concerning its jurisdiction to correct what it perceived were erroneous rulings by the ALJ. The Second District Court affirmed the final order, stating that “[a]s the Secretary correctly concluded, his substantive jurisdiction over environmental protection regulation does not extend to the ALJ’s determination of whether collateral estoppel limited ... objections and review of the secondary impacts of the proposed stormwater management system.” Id. at 1144.

In Barfield v. Department of Health, 805 So.2d 1008 (Fla. 1st DCA 2001), an applicant for dental licensure appealed the final order of the Department of Health, Board of Dentistry [the Board], denying his application on the ground that he had failed the clinical portion of the Florida Dental License Examination. The ALJ had ruled that certain grading sheets, which the Board had relied on in deciding that Barfield had failed the examination, were inadmissible hearsay and could not be used as evidence to show that Barfield failed the licensure examination. The Board issued its final order rejecting the ALJ’s conclusion of law. The applicant argued, and the First District Court agreed, that the Board, as the reviewing agency of the ALJ’s recommended order, had no substantive jurisdiction under section 120.57(1)©, Florida Statutes (1999), to displace the ALJ’s conclusion of law regarding the hearsay issue.

The court in Barfield examined in detail the legislative history of the provisions of section 120.57(1)©. From examination of Barfield and our own review of the relevant statutory provisions, we conclude that the Legislature clearly intended to restrict agency review of legal conclusions in a recommended order to those that concern matters within the agency’s field of expertise. We agree with the rationale of Bar-field and Deep Lagoon. We are especially persuaded after review of the legislative history in Barfield, which clearly reveals the legislative intent to restrict agency review of conclusions of law in a recommended order in the manner prescribed by section 120.57(1)©.

We acknowledge, as did the court in Barfield, that uncertainty exists regarding the avenues of review available to parties and agencies aggrieved by an ALJ’s erroneous legal ruling that is not within the agency’s substantive jurisdiction to correct. However, it is not for us to say whether we agree with the wisdom of the limited scope of review prescribed by section 120.57(1)© or whether we wish that it were more expansive. “[I]t is not the prerogative of this court to melt this statute and recast it in a mold of our choosing. The general principle which we must adhere to, simply put, requires this court to interpret legislation, not rewrite it.” Jordan v. State, 801 So.2d 1032,1034 (Fla. 5th DCA 2001) (citation omitted). Obliging this principle and the time honored rules of statutory construction that have guided us in our effort to resolve the issue before us, we must affirm that part of the order under review wherein DEP held that it did not have substantive jurisdiction to correct what it believed to be an erroneous legal ruling by the ALJ. The question arises, which we next address, whether this court has jurisdiction to correct this erroneous ruling.

Jurisdiction Of This Court To Correct The ALJ’s Erroneous Ruling

The current posture of the instant case leaves an erroneous decision rendered by an ALJ intact unless this court has jurisdiction to correct it. Orange City argues that we do not have jurisdiction because the ALJ’s recommended order of dismissal was directly appealable to this court and GEL should have initiated a direct appeal of that order prior to DEP’s review.

We agree that GEL should have appealed the ALJ’s order of dismissal directly to this court. See Barfield. Its failure to have done so does not, however, preclude relief, as demonstrated by Bar-field. In Barfield, although the court held that the ALJ’s erroneous ruling should have been directly appealed to the court, it nevertheless held that it had jurisdiction to review and correct that ruling because the parties had fully briefed and argued the issues involved, and once the court had jurisdiction, it could then decide any issue that affected the case. Like the parties in Barfield, the parties in the instant case fully argued the issue of the ALJ’s jurisdiction after dismissal. Thus, once this court acquired jurisdiction over the Final Order of Dismissal rendered by DEP, this court properly considered the correctness, vel non, of the ALJ’s ruling as an issue necessary to the correct resolution of the case. “[0]nce an appellate court has jurisdiction it may, if it finds it necessary to do so, consider any item that may affect the case.” Westerheide v. State, 831 So.2d 93, 105 (Fla.2002) (citation omitted); see also § 120.68(6)(a), Fla. Stat. (2000) (“The reviewing court’s decision may be mandatory, prohibitory, or declaratory in form, and it shall provide whatever relief is appropriate irrespective of the original form of the petition. The court may ... decide the rights, privileges, obligations, requirements, or procedures at issue between the parties.”); Cantor v. Davis, 489 So.2d 18, 20 (Fla.1986); Barfield; State v. Hutchins, 636 So.2d 552 (Fla. 2d DCA 1994); Drains v. Drains, 627 So.2d 505, 508-09 (Fla. 2d DCA 1993).

Conclusion

The ALJ erroneously ruled that he lacked jurisdiction to hear GEL’s petition for fees and DEP properly held that it did not have substantive jurisdiction to correct that error. This court, however, does have jurisdiction to correct the error. Accordingly, we reverse that part of the order under review that approves the ALJ’s ruling and remand this case to the ALJ to conduct a hearing on GEL’s petition for attorney’s fees.

AFFIRMED in part, REVERSED in part, and REMANDED.

GRIFFIN and MONACO, JJ., concur.

      . Lawrence E. Sellers, Jr., The 2003 Amendments To The Florida APA, Fla. B.J., Oct. 2003, at 79.

      . State ex rel. Szabo Food Servs., Inc. of NC v. Dickinson, 286 So.2d 529, 531 (Fla.1973) (“The mere [statutory] change of language does not necessarily indicate an intent to change the law for the intent may be to clarify what was doubtful and to safeguard against misapprehension as to existing law.”) (citation omitted); Gay v. Canada Dry Bottling Co., Inc., 59 So.2d 788, 790 (Fla. 1952) (“The court has the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation.”) (quoting General Petroleum of Cal. v. Smith, 62 Ariz. 239, 157 P.2d 356, 360 (1945)); Equity Corp. Holdings, Inc. v. Department of Banking & Fin., Div. of Fin., 772 So.2d 588, 590 n. 7 (Fla. 1st DCA 2000) ("Courts are permitted to consider subsequent legislation as evidence of the legislature's intent in construing a statute.") (citations omitted); Gamble v. State, 723 So.2d 905, 907 (Fla. 5th DCA 1999) ("[0]ur courts have a duty to consider subsequent legislation in arriving at a correct interpretation of a prior statute.”) (citations omitted); State Dept. of Bus. & Prof'l Regulation, Div. of Pari-Mutu-el Wagering v. WJA Realty Ltd. P’ship, 679 So.2d 302 (Fla. 3d DCA 1996); see also K.H. v. State, 821 So.2d 1202 (Fla. 5th DCA 2002).

        .See Palma Del Mar Condo. Ass’n No. 5 of St. Petersburg, Inc. v. Commercial Laundries of West Fla., Inc., 586 So.2d 315, 317 (Fla.1991) ("Consequently, it is appropriate for this Court to consider chapter 86-175, Laws of Florida, particularly since there had been a judicial interpretation after the original enactment of section 718.3025 which the legislature believed was contrary to its original intent.”); Lowry v. Parole & Probation Comm’n,
        473 So.2d 1248, 1250 (Fla.1985); Burgos v. State, 765 So.2d 967 (Fla. 4th DCA 2000); Matthews v. State, 760 So.2d 1148 (Fla. 5th DCA 2000); State v. Patterson, 694 So.2d 55 (Fla. 5th DCA 1997) (concluding that it is appropriate to determine legislative intent by considering a subsequent amendment enacted shortly after a judicial interpretation of the existing statute); Lincoln v. Florida Parole Comm'n, 643 So.2d 668, 672 (Fla. 1st DCA 1994); Brown v. MRS Mfg. Co., 617 So.2d 758 (Fla. 4th DCA 1993); State v. Nuckolls, 606 So.2d 1205, 1207 (Fla. 5th DCA 1992). As the court stated in Lowry, when "an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof.” 473 So.2d at 1250.


author: WEBSTER, J.

text:
    R.T. BEVIL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1495.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    Rehearing Denied July 2, 2004.

      Nancy A. Daniels, Public Defender; Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

In this direct criminal appeal, appellant seeks review of his convictions, following a jury trial, for sexual battery and trespass in a structure. Because the trial court permitted a Florida Department of Law Enforcement (FDLE) crime lab analyst to testify about DNA population frequencies over appellant’s objection that the state had failed to demonstrate that the FDLE database used to compute the population frequencies satisfied the Frye test, we are constrained to reverse, and to remand for a new trial.

On February 2, 2001, appellant was charged with burglary of a dwelling with a battery and sexual battery. Prior to trial, appellant filed a motion seeking to suppress DNA evidence, and requesting a Frye hearing. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923). He contended, among other things, that the FDLE database used to compute population frequencies (upon which the state’s expert witness intended to rely at trial) had recently been found to be “flawed,” and was not being used by FDLE until the “problem” had been “corrected.” As a result, according to appellant, the FDLE database could not satisfy the requirements of Frye and Ramirez v. State, 651 So.2d 1164 (Fla.1995), and any expert testimony based on that database must be prohibited.

On January 7, 2002, the trial court held a Frye hearing in response to appellant’s motion. At the start of that hearing, the prosecutor represented that, at trial, the state’s expert would rely exclusively on the FDLE population database for purposes of computing and testifying about DNA population frequencies. During the hearing, Suzanne Livingston, the forensic service director of FDLE, and Jo Ellen Brown, the crime lab analyst who performed the DNA testing on the specimens collected in the investigation of this case, testified. Regarding the FDLE database, Brown testified that the FDLE population database had been “validated” by an independent consultant in 1999, and FDLE had begun using it to compute population frequencies in 2000. However, both Livingston and Brown testified that the independent consultant had subsequently discovered errors in the database. According to Livingston, because of concerns regarding the accuracy of the FDLE database, she had directed that the entire database be reexamined for errors and that, pending the completion of that reexamination, the FBI database be used instead. As of the date of the hearing, the reexamination had not yet been completed. The state offered no scientific literature addressing the acceptance of the FDLE database, and Livingston testified that she was not aware of any.

Brown testified that, in February 2001, she performed an analysis on the specimens collected in the investigation of this case. According to her, the analysis reflected that there was a mixture of DNA from two or more individuals on the sperm fraction of the vaginal swabs. The DNA in the mixture was consistent with the DNA profiles of the victim and appellant. Using the FDLE database, she concluded that the frequency of appellant’s DNA profile was one in 289 trillion for the Caucasian population, one in 1.83 trillion for the African-American population, and one in 129 trillion for the southeastern Hispanic population. At the conclusion of the hearing, appellant argued that the state had failed to carry its burden to demonstrate that the FDLE database met the requirements of Frye. The trial court denied appellant’s motion, saying that “nothing [had come] in to show [it] that [the database] was not properly used and not accepted in the scientific community.”

Appellant’s trial commenced on the day following the Frye hearing. At trial, the state offered Brown as its expert on DNA analysis. She again testified that she performed the analysis on the specimens collected during the investigation; that there was a mixture of DNA from two or more people in the vaginal swabs; that the victim was a minor donor of that DNA; and that appellant was a major donor. Over appellant’s renewed objection, Brown testified that she computed population frequencies based on the FDLE population database; that the frequency of the DNA profile for the major donor of the sperm fraction was one in 289 trillion for the Caucasian population, one in 1.83 trillion for the African-American population, and one in 129 trillion for the southeastern Hispanic population. The jury found appellant guilty of sexual battery, as charged, and of the lesser-included offense of trespass in a structure. Appellant was subsequently adjudicated guilty, and sentenced to ten years in prison for the sexual battery conviction and one year in county jail for the trespass conviction. This appeal follows.

“[Njovel scientific evidence is not admissible in Florida unless it meets the test established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923),” which requires that such evidence “ ‘be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Flanagan v. State, 625 So.2d 827, 828 (Fla.1993) (quoting Frye, 293 F. at 1014). Accord Hadden v. State, 690 So.2d 573, 577-78 (Fla.1997); Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) (Ramirez II). When applying the Frye test, “the burden is on the proponent of the evidence to prove [by the greater weight of the evidence] the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.” Id. at 1168. This requires more than “[a] bald assertion by the expert that his deduction is premised upon well-recognized scientific principles.” Ramirez v. State, 810 So.2d 836, 844 (Fla.2001) (Ramirez III). As our supreme court has emphasized, “general scientific recognition requires the testimony of impartial experts or scientists. It is this independent and impartial proof of general scientific acceptability that provides the necessary Frye foundation.” Id. at 851.

Our standard of review when considering a trial court’s ruling on a Frye issue is de novo, rather than abuse of discretion. Murray v. State, 838 So.2d 1073, 1077-78 (Fla.2002); Ramirez III, 810 So.2d at 844; Brim v. State, 695 So.2d 268, 274 (Fla.1997). Moreover, we must ad dress the matter of general acceptance as of the time of appeal, rather than the time of trial. Ramirez III, 810 So.2d at 844-45 (citing Hadden, 690 So.2d at 579). In reaching our decision regarding general acceptance, we “may examine expert testimony, scientific and legal writings, and judicial opinions.” Hadden, 690 So.2d at •579 (citing Flanagan, 625 So.2d at 828). “Any doubt as to admissibility under Frye should be resolved in a manner that minimizes the chance of a wrongful conviction.” Ramirez III, 810 So.2d at 853.

As our supreme court has noted, “DNA testing requires a two-step process, one biochemical and the other statistical. The first step uses principles of molecular biology and chemistry to determine that two DNA samples look alike. The second step uses statistics to estimate the frequency of the profile in the population. Both steps must satisfy the Frye test.” Butler v. State, 842 So.2d 817, 827 (Fla.2003) (citing Brim, 695 So.2d 268). Here, appellant challenges the second step of the DNA testing process, contending that the trial court erroneously admitted population frequency statistics derived from the FDLE database because the state failed to establish that the FDLE database was generally accepted in the scientific community. We agree.

It is undisputed that, at trial, the state’s expert on DNA analysis relied exclusively on the FDLE database to compute the population frequencies to which she testified. Given the testimony of the state’s own witnesses at the Frye hearing that errors in the FDLE database had caused sufficient concern that a reexamination of the entire database was ordered and that, pending completion of that reexamination (which had not yet occurred) only the FBI database was to be used, we believe that it was incumbent on the state to demonstrate that, notwithstanding that concern, the FDLE database was generally accepted in the scientific community. The state made no real effort to do that at any time in the trial court. It offered neither independent expert testimony nor evidence in the form of scientific literature. While we must address the matter of general acceptance as of the time of appeal, the state has not presented any evidence regarding revali-dation of the FDLE database relied upon by its witness at trial, and our own research has failed to find any.

The state contends that, even if the trial court erred when it permitted testimony based on the FDLE database, reversal is not required because the error was harmless. In support of its contention, the state points out that appellant confessed. While this is true, at trial the defense took the position that the confession was involuntary, and the product of suggestion and coercion. It presented evidence that appellant was unsophisticated, and had a learning disability. Moreover, the victim was unable to identify her attacker. Finally, it is apparent that the state used the population frequency statistics for the purpose of convincing the jury that it was scientifically impossible for anyone other than appellant to have committed the crimes. Based upon a careful review of all the evidence offered at trial, we are unable to say, to the exclusion of all reasonable doubt, that this error had no effect on the jury’s verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986); Goodwin v. State 751 So.2d 537 (Fla.1999) (applying the DiGuilio test to non-constitutional errors). Accordingly, we conclude that the state has failed to carry its burden of demonstrating that the error was harmless.

The state next contends that, rather than reverse and remand for a new trial, we should remand the case to the trial court for a limited evidentiary hearing, citing Hudson v. State, 820 So.2d 1070 (Fla. 5th DCA 2002). We disagree. Hudson relied on Miles v. State, 694 So.2d 151 (Fla. 4th DCA 1997), which, in turn, relied on Brim v. State, 695 So.2d 268 (Fla.1997). The distinguishing characteristic between those three cases and this is that in those cases no Frye hearing had been conducted. As a result, the information necessary to make an intelligent decision on appeal regarding compliance with Frye was not present in the record. Here, no such deficiency exists. Appellant made a specific Frye challenge, arguing that FDLE, itself, had sufficient concern regarding its database to order reexamination of the entire database and to direct that, pending completion of that reexamination, the database not be used. The trial court held a Frye hearing at which the state was afforded every opportunity to demonstrate that the FDLE database satisfied Frye. For reasons known only to it, it elected not to do so. Given these circumstances, the situation is no different from any other appeal based on an evidentiary error, where the appellee might have demonstrated admissibility in the trial court, but did not. As in those cases, we believe that remand for a new trial is the appropriate remedy here.

Appellant’s convictions are reversed, and the case is remanded for a new trial. We conclude that appellant’s other arguments are either without merit or moot.

REVERSED and REMANDED, with directions.

KAHN and BROWNING, JJ., CONCUR.


text:
    William SALDARREAGA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-518.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    William Saldarreaga, Miami, pro se.
    No appearance for appellee.
   PER CURIAM.

We affirm an order denying appellant’s petition for mandamus which the trial court treated as a rule 3.850 motion for post-conviction relief. The trial court did not err in denying appellant’s request to appoint counsel because his post-conviction motion was not complex and he was not entitled to an evidentiary hearing. Appellant’s first claim that his plea was not binding because it was not formally accepted by the court is without merit. He did not move to withdraw his plea until after sentencing and failed to show prejudice or manifest injustice. Demartine v. State, 647 So.2d 900 (Fla. 4th DCA 1994). His second claim, that the prosecutor made a false statement at sentencing, was raised on direct appeal and is without merit. Nor is defendant’s plea void based on Noon v. State, 480 So.2d 668 (Fla. 4th DCA 1985) and Campbell v. State, 453 So.2d 525 (Fla. 5th DCA 1984). The statute on which defendant relies was amended in 1987, after those cases, making those cases irrelevant. His plea was valid. Affirmed.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    William PETZOLD, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-819.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    William Petzold, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Gethers v. State, 798 So.2d 829 (Fla. 4th DCA 2001), approved, 838 So.2d 504 (Fla.2003).

GUNTHER, GROSS and HAZOURI, JJ., concur.


author: RAMIREZ, J.

text:
    STATE of Florida, Appellant, v. Eusebio HERNANDEZ, Appellee.
    No. 3D03-1187.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, and Richard L. Polin, Criminal Appeals Bureau Chief, and Mark Rosenblatt, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   RAMIREZ, J.

The State of Florida appeals the trial court’s order granting appellee Eusebio Hernandez’s Motion to suppress and denying, in part, the State’s motion in limine. We treat the notice of appeal as a petition for writ of certiorari and deny the writ, finding that the trial court did not depart from the essential requirements of the law in excluding the co-defendant’s out-of-court statements.

Hernandez, along with the co-defendant, was charged with first-degree murder, attempted first-degree murder, conspiracy to commit murder, and causing bodily injury during the commission of a felony. The State alleged that Hernandez hired the co-defendant to murder Hernandez’s ex-wife and the ex-wife’s then boyfriend.

After the co-defendant’s arrest, the police persuaded him to engage in a controlled phone call to Hernandez in an attempt to obtain admissions by Hernandez regarding the offenses. The conversation was taped by the police.

Prior to trial, Hernandez filed a motion to suppress the taped phone conversation on Sixth Amendment grounds since the co-defendant would not testify at trial and thus would not be subject to cross-examination. The phone conversation included information relating to the charged crimes which the State argued was adopted by admissions by Hernandez through his silence and by statements he made in response to the co-defendant’s remarks. See, § 90.803(18)(b), Fla. Stat. (2003); Charles W. Ehrhardt, Florida Evidence § 803.18 (2004 ed.). The State responded by filing, in part, a motion in limine which sought a determination as to the admissibility of the controlled phone call.

After a hearing was held on the motions, the trial court, without making any specific findings, granted the motion to suppress and effectively denied the State’s in limine request for admission of the taped phone conversation. The trial court determined that it would be wasteful to hold a trial, only to have this Court potentially reverse the ruling on appeal.

The State argues that the trial court erred in granting Hernandez’s motion to suppress the controlled phone call between Hernandez and the co-defendant on Sixth Amendment grounds where the co-defendant would not testify at trial and that Hernandez adopted the truth of the statements through his silence or through his own highly incriminating responses. Hernandez’s position is that the trial court did not depart from the essential requirements of the law by excluding the co-defendant’s out-of-court statements because the admission of those statements at trial would violate the Sixth Amendment confrontation clause.

First, we agree with Hernandez that the State’s notice of appeal must be treated as a petition for writ of certiorari. Rule 9.140(c)(1), Florida Rules of Civil Procedure, authorizes the State to seek direct appellate review of an order “suppressing before trial confessions, admissions, or evidence obtained by search and seizure.” The non-final pre-trial order being appealed by the State here is not listed in Florida Rule of Appellate Procedure 9.140(c)(1) as an order which may be appealed by the State. Thus, we treat the notice of appeal as a petition for writ of certiorari. However, we deny the petition because the State has failed to demonstrate that the trial court’s order is a violation of clearly established law, resulting in a miscarriage of justice. See State v. Pettis, 520 So.2d 250 (Fla.1988).

Under the facts of this case, the trial court’s order excluding the co-defendant’s out of court statements does not violate a clearly established principle of law, resulting in a miscarriage of justice. Under Crawford v. Washington, — U.S. -, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), admission of the co-defendant’s out-of-court statements at trial would violate the Sixth Amendment Confrontation Clause because Hernandez did not have the opportunity to cross-examine the co-defendant, even if the statements were otherwise admissible into evidence under the hearsay exception for adoptive admissions. As Hernandez points out in his brief, although in Globe v. State, 877 So.2d 663, 2004 WL 524928 (Fla. March 18, 2004), the Florida Supreme Court held that the admission of co-defendant statements as adoptive admissions did not violate the Confrontation Clause, Globe was based on the decision of the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which was overruled by Crawford. As such, this court is not bound by Globe.

In Crawford, the United States Supreme Court stated that, if it is an out of court statement that is testimonial, the statement does not come in if the defendant does not have a chance to cross-examine it. Crawford, 124 S.Ct. at 1369. The State has conceded that there is no chance for cross-examination of the co-defendant in this case. The Crawford Court further stated:

In this case, the State admitted Sylvia’s testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment.... Where testimonial statements are at issue, the only indi-cium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

Id. at 1374. The United States Supreme Court further noted: •

Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abusea fact borne out time and again throughout history with which the Framers were keenly familiar. This consideration does not evaporate when testimony happens to fall within some broad, modern hearsay exception, even if that exception might be justifiable in other circumstances.

Id. at 1367, n. 7.

Accordingly, the trial court correctly ruled that admission of the co-defendant’s out-of-court statements while in police custody would violate the Confrontation Clause. Here, police set up a controlled situation, in the hopes that Hernandez would incriminate himself. As such, because the co-defendant’s statements are testimonial under Crawford, admission of those statements at trial would violate the Sixth Amendment Confrontation Clause because Hernandez had no opportunity to cross-examine the co-defendant. Thus, the trial court’s order excluding these statements does not violate a clearly established principle of law, resulting in a miscarriage of justice.

The State further claims that the co-defendant’s statements come within the adoptive admission exception to the hearsay rule. We disagree. The co-defendant’s statements are not admissible as adoptive admissions because the out-of-court statements were the direct product of police officers who directed the co-defendant to make the' statements so that Hernandez would incriminate himself and also because the out-of-court statements do not meet the requirements for admission as adoptive admissions.

In Privett v. State, 417 So.2d 805 (Fla. 5th DCA 1982), the Fifth District outlined the requirements for the adoptive admission exception to the hearsay rule. The court stated,

If a party is silent, when he ought to have denied a statement that was made in his presence and that he was aware of, a presumption of acquiescence arises. Not all statements made in the presence of a party require denial. The hearsay statement can only be admitted when it can be shown that in the context in which the statement was made it was so accusatory in nature that the defendant’s silence may be inferred to have been assent to its truth. To determine whether the person’s silence does constitute an admission, the circumstances and the nature of the statement must be considered to see if it would be expected that the person would protest if the statement were untrue.
Several factors should be present to show that an acquiescence did in fact occur. These factors include the following:
1. The statement must have been heard by the party claimed to have acquiesced.
2. The statement must have been understood by him.
8. The subject matter of the statement is within the knowledge of the person.
4. There were no physical or emotional impediments to the person responding.
5. The personal make-up of the speaker or his relationship to the party or event are not such as to make it unreasonable to expect a denial.
6. The statement itself must be such as would, if untrue, call for a denial under the circumstances.
The essential inquiry thus becomes whether a reasonable person would have denied the statements under the circumstances.

Id. at 806-07 (citations omitted). See also Globe v. State, 877 So.2d 663, 2004 WL 524928 (Fla. March 18, 2004); and Nelson v. State, 748 So.2d 237, 243 (Fla.1999).

In the cases cited by the State which admit out-of-court statements as adoptive admissions, the statements were made during conversations the defendant had with other people and there was no police involvement, unlike the facts before us. See Nelson v. State, 748 So.2d 237 (Fla.1999); Privett v. State, 417 So.2d 805 (Fla. 5th DCA 1982); Tresvant v. State, 396 So.2d 733 (Fla. 3d DCA 1981). Under these circumstances, the trial court’s decision not to allow the co-defendant’s statements to come within the hearsay exception for adoptive admissions does not violate a clearly established principle of law, resulting in a miscarriage of justice.

In addition, the co-defendant’s out of court statements do not meet the requirements for an adoptive admission. A careful reading of the conversation that took place between Hernandez and the co-defendant indicates that there was nothing in the statements made by the co-defendant that were so accusatory in nature that Hernandez’s silence could be taken as an assent to its truth. Furthermore, portions of the conversation indicate that Hernandez was not sure what the co-defendant was asking or talking about. In fact, the co-defendant was evidently extorting money from Hernandez, who kept repeating that they should not be talking on the telephone. Thus, two of the requirements for admission of a statement as an adoptive admission, that the statement must have been heard by the party claimed to have acquiesced and that the statement must have been understood by the defendant, were not met.

Accordingly, admission of the co-defendant’s statements at trial would violate the Sixth Amendment confrontation clause because Hernandez had no opportunity for cross-examination, even if the statements were otherwise admissible into evidence under the hearsay exception for adoptive admissions. Furthermore, the trial court’s order excluding the co-defendant’s out-of-court statements did not violate a clearly established principle of law, as those statements did not come within the adoptive admission exception to the hearsay rule. The petition for writ of certiorari is denied.

Petition denied.


text:
    James SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0852.
    District Court of Appeal of Florida, First District.
    June 21, 2004.
    James Sanders, pro se, petitioner.
    Charlie Crist, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, VAN NORTWICK, and POLSTON, JJ., concur.


text:
    William AUSTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1641.
    District Court of Appeal of Florida, First District.
    June 22, 2004.
    William Austin, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, DAVIS and BENTON, JJ., concur.


text:
    Sheila Daw K. RAUB, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, and Florida Institute of Health, Appellees.
    No. 4D04-666.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Sheila Daw K. Raub, Tamarac, pro se. No response required for appellees.
   PER CURIAM.

We summarily affirm pursuant to Florida Rule of Appellate Procedure 9.315.

FARMER, C.J., POLEN and STEVENSON, JJ., concur.


text:
    Allen COX, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1457.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    David R. Gemmer, Tampa, for appellant.
    No appearance required for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny appellant’s motion for certification, but grant his motion for rehearing, withdraw the prior opinion, and substitute the following in lieu thereof.

AFFIRMED. See Newberry v. State, 870 So.2d 926 (Fla. 4th DCA 2004).

GROSS, TAYLOR and HAZOURI, JJ., concur.


text:
    Curtis SMALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-5011.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Curtis Small, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s order denying post-conviction relief and remand to the trial court with directions to grant appellant’s motion or notice for voluntary dismissal, without prejudice to his right to refile any such motion within thirty (30) days after issuance of this court’s mandate. See Hansen v. State, 816 So.2d 808 (Fla. 1st DCA 2002); Murphy v. State, 801 So.2d 1010 (Fla. 4th DCA 2001); Dunn v. State, 762 So.2d 593 (Fla. 4th DCA 2000); Howard v. State, 743 So.2d 608 (Fla. 4th DCA 1999).

WARNER, POLEN and MAY, JJ., concur.


text:
    Linda Czar TOMPKINS, Appellant, v. TOYOTA, KING, and JM Family Enterprises, Inc., Appellees.
    No. 4D03-4838.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Linda Czar Tompkins, Boca Raton, pro se.
    Mitehel Chusid and Allison Kay Grant of Ritter Chusid Bivona & Cohen, LLP, Boca Raton, for appellee JM Family Enterprises, Inc.
   PER CURIAM.

The court has reviewed appellant’s brief and finds that no preliminary basis for reversal has been demonstrated. The appeal is therefore affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a).

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


text:
    Raheem Lateef BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4059.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the revocation of probation and sentence in this case, in which the appellants assistant public defender filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, we remand for entry of a written order of revocation of probation, specifying the conditions Defendant was found to have violated. See, e.g., Campbell v. State, 776 So.2d 1036 (Fla. 4th DCA 2001).

FARMER, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    Angelo PUGLIESE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2772.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Michael B. Cohen of Michael B. Cohen, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Milbin v. State, 792 So.2d 1272 (Fla. 4th DCA 2001).

GUNTHER, STEVENSON and HAZOURI, JJ., concur.


text:
    Dana Lawrence LAGGINI, Appellant, v. Cathy Ann LAGGINI, Appellee.
    No. 4D03-2673.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Ron G. Rice, Jr., of Law Offices of Ron G. Rice, Jr., P.A., Boca Raton, for appellant.
    No appearance for appellee.
   PER CURIAM.

Dana Laggini, Former Husband, appeals the Final Judgment of Dissolution of Marriage and argues that the trial court failed to make the necessary findings prior to awarding Cathy Laggini, Former Wife, permanent periodic alimony and child support. We agree.

The trial court awarded Former Wife permanent periodic alimony in the amount of $2,800 per month. However, the Final Judgment does not reflect that the trial court considered the relevant factors set out in section 61.08, Florida Statutes (2002), when making this determination. In the absence of sufficient factual findings concerning the statutory factors, it is impossible for this court to assess the reasonableness of the permanent alimony award. See Ondrejack v. Ondrejack, 839 So.2d 867 (Fla. 4th DCA 2003); Segall v. Segall, 708 So.2d 983, 987 (Fla. 4th DCA 1998).

Similarly, the trial court awarded Former Wife child support in the amount of $450 per month per child. However, the trial court failed to make the necessary findings of fact for this court to determine whether the award was in compliance with section 61.30, Florida Statutes (2002). See Cooper v. Cooper, 760 So.2d 1048 (Fla. 2d DCA 2000). Therefore, we reverse and remand with instructions to the trial court to make specific findings to support the awards of alimony and child support.

REVERSED AND REMANDED.

GUNTHER, STEVENSON and HAZOURI, JJ., concur.


text:
    Teresa SUTTON and Robert Sutton, her husband, Appellants, v. SCHOOL BOARD OF BROWARD COUNTY, Appellee.
    No. 4D03-1585.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Kelley B. Gelb and Robert J. McKee of Krupnick, Campbell, Malone, Buser, Sla-ma, Hancock, McNelis, Liberman & McKee, P.A., Fort Lauderdale, for appellants.
    Dorsey C. Miller, III, and Debra Potter Klauber of Haliczer Pettis, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Fitzgerald v. S. Broward Hosp. Dist., 840 So.2d 460 (Fla. 4th DCA 2003); McClanahan v. State, Dep’t of Juvenile Justice, 854 So.2d 793 (Fla. 2d DCA 2003).

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


text:
    Henry Lee WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-857.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    John H. Lipinski of the Law Office of J.H. Lipinski, Esq., P.A., Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Welling v. State, 748 So.2d 314 (Fla. 4th DCA 2000).

WARNER, KLEIN and TAYLOR, JJ., concur.


author: GRIFFIN, J.

text:
    Michael LINGANE, Petitioner, v. Susan P. ARNOLD, Respondent.
    No. 5D04-1997.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2004.
    Michelle H. Clark, Orlando, for Petitioner.
    Susan P. Arnold, Orlando, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach.
   GRIFFIN, J.

After consideration of the petition for writ of habeas corpus filed by Michael Lingane and the responses filed by respondent, Susan P. Arnold, and the State of Florida, the court has determined that the petition should be construed as a notice of an appeal and has expedited review in accordance with Florida Rule of Criminal Procedure 3.691(c).

We reverse the trial court’s order denying petitioner/appellant’s motion for post-trial release and remand the case to the trial court to forthwith, within 72 hours, issue an order which complies with Florida Rule of Criminal Procedure 3.691(b) and states in writing the reasons for the denial of petitioner/appellant’s motion for post-trial release, as required in any case in which the court has the discretion to grant post-trial release. An order which merely states that the motion for post-trial release is improper does not comply with the rule. The order which denies post-trial release will then be reviewable by expedited appeal, as provided by rule 3.691(c).

REVERSED and REMANDED for further proceedings.

SHARP, W., and PALMER, JJ., concur.


text:
    Aliza BARZILAY, ETC., et al., Appellants, v. CARLTON PALMS EDUCATIONAL CENTER, INC., Appellee.
    No. 5D03-3470.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    Ali M. Kirk of Ali Kirk, P.A., Orlando, for Appellant.
    Erin J. O’Leary, Joseph E. Blitch, and Usher Larry Brown of Brown, Salzman, Weiss & Garganese, P.A., Orlando, for Ap-pellee.
   PER CURIAM.

The second amended complaint of the appellants was dismissed with prejudice by the trial court because of an application of the parol evidence rule to the contract between the parties. Despite its name, the parol evidence rule is a substantive rule of law essentially to the effect that a written document intended by the parties to be the final embodiment of their agreement may not be contradicted, modified, or varied by parol evidence. See King v. Bray, 867 So.2d 1224, 1226 (Fla. 5th DCA 2004). We find no error in the application of this concept by the trial court in the present case to the alleged oral representations at variance with the unambiguous contract before the trial court in the present case. Moreover, no exception to the parol evidence rule appears to be applicable.

Finally, the appellants argue that some parts of the trial judge’s final order in this matter were never argued to him below. We have not been provided with either a transcript of the hearing associated with the final order, or a stipulation pursuant to Rule 9.200(a), Florida Rules of Appellate Procedure. Accordingly, we are unable to address this matter. Cf., Hirsch v. Hirsch, 642 So.2d 20 (Fla. 5th DCA 1994).

AFFIRMED.

PLEUS, MONACO, and TORPY, JJ„ concur.


author: ORFINGER, J.

text:
    Leroy JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3398.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Leroy Johnson entered pleas of nolo contendere to sexual battery on a child, attempted sexual battery on a child, and sexual battery on a child by a person in familial or custodial authority. He now challenges the trial court’s order declaring him to be a sexual predator, contending that the Florida Sexual Predators Act, section 775.21, Florida Statutes (2003), is unconstitutional as violating procedural due process. We affirm, as we have previously rejected due process challenges to the Florida Sexual Predators Act. See Martin v. State, 864 So.2d 589 (Fla. 5th DCA 2004); Miller v. State, 861 So.2d 1283 (Fla. 5th DCA 2004). As we have before, we certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), which held that the Florida Sexual Predators Act is unconstitutional because it violates procedural due process.

AFFIRMED; CONFLICT CERTIFIED.

GRIFFIN and THOMPSON, JJ., concur.


text:
    James WHEELER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1268.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Bennett H. Brummer, Public Defender, and Ivy R. Ginsberg, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEPHERD, JJ.
   PER CURIAM.

This case is reversed and remanded so that the trial court may rule on those grounds stated in appellant’s motion for post conviction relief which the court erroneously held to be abandoned. We affirm to the extent that the trial court ruled on the merits of the motion relating to the grounds that the Court set for hearing.

Affirmed in part, reversed in part and remanded.


text:
    Dr. Andrew L. CHERRY, Jr., Appellant, v. CATHOLIC CHARITIES OF THE ARCHDIOCESE, etc., Appellee.
    No. 3D03-2293.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Charles T. Whitelock, Fort Lauderdale, and Christopher J. Whitelock, for appellant.
    Gilbride, Heller Brown and Adam D. Horowitz, Miami, for appellee.
    Before SCHWARTZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See § 448.102(1), Fla. Stat. (2000); Golf Channel v. Jenkins, 752 So.2d 561 (Fla.2000); cf. § 448.102(3), Fla. Stat. (2000).


text:
    The STATE of Florida, Appellant, v. Ernest MERRIWEATHER, Appellee.
    No. 3D03-2367.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellee.
    Before COPE, LEVY and GERSTEN, JJ.
   PER CURIAM.

The State’s general objection was insufficient to call the trial court’s attention to the need for downward departure reasons. State v. Leggett, 792 So.2d 646, 647 (Fla. 3d DCA 2001); State v. Henriquez, 717 So.2d 1087 (Fla. 3d DCA 1998).

Affirmed.


text:
    VITAS HEALTHCARE CORPORATION, Appellant, v. PEARCE FINANCIAL GROUP, Appellee.
    No. 3D03-3137.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Phillips, Eisinger & Brown, P.A., and Gary S. Phillips, Hollywood, for appellant.
    Sandler Sandler, and Martin L. Sandler, Miami, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000).


text:
    FLORIDA PAROLE COMMISSION, Appellant, v. Christifa A. KNOWLES a/k/a Christopher Knowles, Appellee.
    No. 3D04-138.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.

      Bradley R. Bischoff, Assistant General Counsel, (Tallahassee), for appellant.
    Johnny L. McCray, Jr. (Pompano Beach), for appellee.
    Before GODERICH, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

The Florida Parole Commission appeals the trial court’s order granting a writ of habeas corpus and ordering the release of appellee, Christifa A. Knowles a/k/a Christopher Knowles. As the record supports the trial court’s conclusion, the trial court’s order is affirmed.


text:
    William GOLFIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-599.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    William Golfín, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Harmon v. State, 438 So.2d 369 (Fla.1983); Ratushinak v. State, 517 So.2d 749 (Fla. 4th DCA 1987).


text:
    Maria Saja Jaramillo DE UEJBE and Isidro A. Uejbe, Appellant, v. Americo E. WEHBE and Marie Irene Orihuela Seroux, Appellee.
    No. 3D02-2543.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Maria Sara Jaramillo De Uejbe and Isidro A. Uejbe, in proper person.
    Jonas and Silberman, P.A., and. Daniel E. Jonas, Miami Beach, for appellee.
    Before COPE, LEVY and SHEPHERD, JJ.
   PER CURIAM.

Maria Saja Jaramillo de Uejbe and Isidro A. Uejbe appeal a final judgment after non-jury trial in an ejectment case. We affirm.

The determination of the credibility of witnesses is for the trial court, not this court. See Marrone v. Miami Nat’l Bank, 507 So.2d 652, 653 (Fla. 3d DCA 1987). Any issue regarding the sufficiency of the evidence is precluded by the absence of a trial transcript. See Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979).

The argument that this civil action was barred by the res judicata effect of an earlier county court proceeding is not properly preserved for appellate review. That being so, we need not address appel-lees’ alternative argument that even if it had been properly preserved, it would have no merit. The same analysis applies to the argument pertaining to adverse possession.

The appellants argue that the trial court failed to rule on their counterclaim. However, it is clear from the wording of the judgment that the trial court ruled in favor of appellees on all claims. Given the findings in the court’s judgment, it necessarily follows that the counterclaim fails.

Affirmed.


author: WELLS, Judge.

text:
    Roberto SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2705.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin Kinney, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and WELLS, JJ.
   WELLS, Judge.

Roberto Sanchez appeals his convictions and sentences for five counts of lewd acts on a child under the age of sixteen, claiming that the charges against him were insufficiently narrow to permit him to mount a defense. Sanchez also argues that the trial court improperly designated him a sexual predator.

Based on the State’s proper confession of error, we vacate the trial court’s order designating Sanchez as a sexual predator. Contrary to statutory requirements, no proof of a qualifying prior offense was introduced prior to designating Sanchez as a sexual predator. § 775.21(4) Fla. Stat. (2000).

We find no merit in Sanchez’ argument that the trial court’s refusal to require the State to narrow the time frame alleged in the information mandated dismissal of the charges against him. The record demonstrates neither an ability on the State’s part to further narrow the time frame alleged nor the likelihood of any prejudice to Sanchez flowing from the inability to do so.

Accordingly, the defendant’s convictions and sentences are affirmed; the defendant’s designation as a sexual predator is stricken.


text:
    Albaro Francisco FLORES, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-811.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2004.
    Albaro Francisco Flores, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Albaro Francisco Flores appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The record shows that the trial court orally pronounced two concurrent sentences of 3 1/2 years’ incarceration. The written sentences, however, reflect terms of incarceration of 3.6 years instead of 3.5 years. Finding that the sentence did not contain a scrivener’s error and that Defendant’s sentence was legal, the trial court denied Defendant’s 3.800(a) motion to correct sentence.

As Defendant’s written sentences do not conform to the judge’s oral pronouncement, and the error is apparent on the face of the record, we reverse the order denying relief and remand the case to the trial court for correction of Defendant’s sentences. See Berthiaume v. State, 864 So.2d 1257 (Fla. 5th DCA2004).

REVERSED and REMANDED.

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