author: ROTHENBERG, Judge.

text:
    Edward A. SCHILLING, Appellant, v. Maria HERRERA, Appellee.
    No. 3D06-1220.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.

      Adrian P. Thomas and Brandan J. Pratt, Fort Lauderdale, for appellant.
    Robert S. Glazier; Clark D. Mervis, Miami, for appellee.
    Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiff, Edward A. Schilling (“Mr. Schilling”), appeals from an order granting the defendant Maria Herrera’s (“Ms. Herrera”) motion to dismiss the amended complaint with prejudice based on the trial court’s finding that the amended complaint fails to state a cause of action and that Mr. Schilling is barred from filing to action because he failed to exhaust his probate, remedies. We disagree as to both findings and, therefore, reverse and remand for further proceedings.

PROCEDURAL HISTORY

Mr. Schilling, the decedent’s brother, sued Ms. Herrera, the decedent’s caretaker, for intentional interference with an expectancy of inheritance. Ms. Herrera moved to dismiss the complaint, arguing that Mr. Schilling failed to state a cause of action and that he was barred from filing his claim because he failed to exhaust his probate remedies. The trial court granted the motion to dismiss without prejudice.

Thereafter, Mr. Schilling filed an amended complaint asserting the same cause of action against Ms. Herrera. The amended complaint alleges that in December 1996, Mignonne Helen Schilling (the decedent) executed her Last Will and Testament, naming her brother and only heir-at-law, Mr. Schilling, as her personal representative and sole beneficiary, and in May 1997, she executed a Durable Power of Attorney,, naming Mr. Schilling as her attorney-in-fact.

In December 1999, the decedent was diagnosed with renal disease, resulting in several hospitalizations. During this period, Mr. Schilling, who resides in New Jersey, traveled to Florida to assist the decedent. In January 2000, the decedent executed a Power of Attorney for Health Care, naming Mr. Schilling as her attorney-in-fact for health care decisions.

On January 12, 2001, when the decedent was once again hospitalized, Mr. Schilling traveled to Florida to make arrangements for the decedent’s care. After being released from the hospital, the decedent was admitted to a rehabilitation hospital, then to a health care center, and then to the Clairidge House for rehabilitation. While at the Clairidge House, Ms. Herrera became involved in the decedent’s care, and when the decedent was discharged from the Clairidge House on December 16, 2001, Ms. Herrera notified Mr. Schilling.

After being discharged from the Clair-idge House, the decedent returned to her apartment, and Ms. Herrera began to care for her on an “occasional, as needed basis.” In 2003, when the decedent’s condition worsened and she was in need of additional care, Ms. Herrera converted her garage into a bedroom, and the decedent moved in. The decedent paid Ms. Herrera rent and for her services as caregiver.

When Mr. Schilling spoke to Ms. Herrera over the phone, Ms. Herrera complained that she was not getting paid enough to take care of the decedent, and on April 10, 2003, Mr. Schilling sent Ms. Herrera money. While living in the converted garage, the decedent became completely dependent on Ms. Herrera. In September 2003, without Mr. Schilling’s knowledge, Ms. Herrera convinced the decedent to prepare and execute a new Power of Attorney, naming Ms. Herrera as attorney-in-fact, and to execute a new Last Will and Testament naming Ms. Herrera as personal representative and sole beneficiary of the decedent’s estate.

Mr. Schilling visited the decedent in March of 2004. On August 6, 2004, the decedent died at Ms. Herrera’s home.

On August 24, 2004, Ms. Herrera filed her Petition for Administration. On December 2, 2004, following the expiration of the creditor’s period, Ms. Herrera petitioned for discharge of probate. On December 6, 2004, after the expiration of the creditor’s period and after Ms. Herrera had petitioned the probate court for discharge of probate, Ms. Herrera notified Mr. Schilling for the first time that the decedent, his sister, had passed away on August 6, 2004. Shortly thereafter, in late December 2004, the Final Order of Discharge was entered by the probate court. Mr. Schilling alleges that prior to being notified of his sister’s death on December 6, 2004, he attempted to contact the decedent through Ms. Herrera, but Ms. Herrera did not return his calls until the conclusion of probate proceedings and did not inform him of his sister’s death, thereby depriving him of both the knowledge of the decedent’s death and the opportunity of contesting the probate proceedings. Mr. Schilling further alleges that prior to the decedent’s death, Ms. Herrera regularly did not immediately return his phone calls, and that Ms. Herrera’s “intentional silence was part of a calculated scheme to prevent [Mr.] Schilling from contesting the Estate of Decedent, and was intended to induce [Mr.] Schilling to refrain from acting in his interests to contest the probate proceedings in a timely fashion, as [Mr.] Schilling was used to long delays in contact with [Ms.] Herrera, and did not suspect that the delay was intended to fraudulently induce [Mr.] Schilling to refrain from acting on his own behalf.” Finally, Mr. Schilling alleges that he expected to inherit the decedent’s estate because he was the decedent’s only heir-at-law and because he was named as the sole beneficiary in the 1996 will; Ms. Herrera’s fraudulent actions prevented him from receiving the decedent’s estate, which he was entitled to; and but for Ms. Herrera’s action of procuring the will naming her as sole beneficiary, he would have received the benefit of the estate.

After Mr. Schilling filed his amended complaint, Ms. Herrera filed a renewed motion to dismiss, arguing the same issues that she had raised in her previous motion to dismiss. The trial court granted the motion to dismiss with prejudice, finding that Ms. Herrera had no duty to notify Mr. Schilling of the decedent’s death as Mr. Schilling did not hire Ms. Herrera to care for the decedent, and therefore, there was “no special relationship giving rise to a proactive responsibility to provide information .... ” The trial court also found that Mr. Schilling was barred from filing a claim for intentional interference with an expectancy of inheritance because he failed to exhaust his probate remedies.

LEGAL ANALYSIS

A trial court’s ruling on a motion to dismiss for failure to state a cause of action is an issue of law, and therefore, our standard of review is de novo. Roos v. Morrison, 913 So.2d 59, 63 (Fla. 1st DCA 2005); Susan Fixed, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003). This court “must accept the facts alleged in a complaint as true when reviewing an order that determines the sufficiency of the complaint.” Warren ex rel. Brassell v. K-Mart Corp., 765 So.2d 235, 236 (Fla. 1st DCA 2000); see also Marshall v. Amerisys, Inc., 943 So.2d 276, 278 (Fla. 3d DCA 2006)(“In determining the merits of a motion to dismiss, the court is confined to the four corners of the complaint, including the attachments thereto, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party.”).

To state a cause of action for intentional interference with an expectancy of inheritance, the complaint must allege the following elements: (1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages. Claveloux v. Bacotti, 778 So.2d 399, 400 (Fla. 2d DCA 2001)(citing Whalen v. Prosser, 719 So.2d 2, 5 (Fla. 2d DCA 1998)). The court in Whalen clearly explained that the purpose behind this tort is to protect the testator, not the beneficiary:

Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations. The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is. Thus, the common law court has created this cause of action not primarily to protect the beneficiary’s inchoate rights, but to protect the deceased testator’s former right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights.

Whalen, 719 So.2d at 6.

In the instant case, the trial court’s ruling was based on the fact that the amended complaint fails to allege that Ms. Herrera breached a legal duty owed to Mr. Schilling. However, as the Claveloux court noted, there are four elements for a cause of action for intentional interference with an expectancy of inheritance, and breach of a legal duty is not one of the elements. This is consistent with the Whalen court’s explanation that the “fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is.” Id. (emphasis added). We, therefore, review the amended complaint to determine if it sufficiently pleads a cause of action for intentional interference with an expectancy of inheritance.

In essence, the amended complaint alleges that Mr. Schilling was named as the sole beneficiary in the decedent’s last will and testament; that based on this last will and testament, he expected to inherit the decedent’s estate upon her death; that Ms. Herrera intentionally interfered with his expectancy of inheritance by “convincing” the decedent, while she was ill and completely dependent on Ms. Herrera, to execute a new last will and testament naming Ms. Herrera as the sole beneficiary; and that Ms. Herrera’s “fraudulent actions” and “undue influence” prevented Mr. Schilling from inheriting the decedent’s estate. Based on these • well-pled allegations, we conclude that the amended complaint states a cause of action for intentional interference with an expectancy of inheritance. Therefore, the trial court erred, as a matter of law, in dismissing the amended complaint on that basis.

Mr. Schilling also contends that the trial court erred in finding that he was barred from filing a claim for intentional interference with an expectancy of inheritance as he failed to exhaust his probate remedies. We agree.

In finding that Mr. Schilling was barred from filing his action for intentional interference with an expectancy of inheritance, the trial court relied on DeWitt v. Duce, 408 So.2d 216 (Fla.1981). In DeWitt, the testator’s will was admitted to probate after his death. Thereafter, the plaintiffs filed a petition for revocation of probate of the testator’s will, but voluntarily dismissed the petition, choosing to take under the will instead of challenging the will in probate court. More than two years later, the plaintiffs filed their claim for intentional interference with an inheritance, arguing that the defendants exercised undue influence over the testator at a time when he lacked testamentary capacity, causing the testator to execute the probated will, which was less favorable to the plaintiffs and more favorable to the defendants than the testator’s previous will. The trial court dismissed the action, finding that pursuant to section 733.108(2), Florida Statutes (1977), the plaintiffs were foreclosed from proving the facts, necessary to establish a cause of action for intentional interference with an expectancy of inheritance. Section 733.103(2), Florida Statutes (1977), provides as follows:.

In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and of the fact that the will was unre-voked on the testator’s death.

The decision was appealed to a federal district court, and the federal court determined it would be better for the Florida Supreme Court to decide the issue, certifying the following question to the- Florida Supreme Court:

Does Florida law, statutory or otherwise, preclude plaintiffs from proving the essential elements of their claim for tortious interference with an inheritance where the alleged wrongfully procured will has been probated in a Florida court and plaintiffs had notice of the probate proceeding and an opportunity to contest the validity of the will therein but chose not to do so?

DeWitt, 408 So.2d at 216-17:

In answering the certified question in the affirmative, the Florida Supreme Court stated that “[t]he rule is that if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued.” Id. at 218. The Court, however, stated that an exception to this general rule is that “[i]f the defendant’s fraud is not discovered until after probate, plaintiff is allowed to bring a later action for damages since relief in probate was impossible.” Id. at 219. The Court also noted that “[c]ases which allow the action for tortious interference with a testamentary expectancy are predicated on the inadequacy of probate remedies.... ” Id. In conclusion, the Florida Supreme Court held:

In sum, we find that [plaintiffs] had an adequate remedy in probate with a fair opportunity to pursue it. Because they lacked assiduity in failing to avail themselves of this remedy, we interpret section 733.103(2) as barring [plaintiffs] from a subsequent action in tort for wrongful interference with a testamentary expectancy, and accordingly answer the certified question in the affirmative.

Id. at 221. Therefore, the Court’s holding that the plaintiffs were barred from pursuing their claim for intentional interference with an expectancy of inheritance, was based on the fact that the plaintiffs had an adequate remedy in probate; the plaintiffs had a fair opportunity to pursue their remedy; and the plaintiffs’ failure to pursue their remedy was due to their lack of diligence.

We find that DeWitt is factually distinguishable, and ’ therefore inapplicable. A review of the amended complaint reflects that Mr. Schilling has alleged two separate frauds. The first alleged fraud stems from Ms. Herrera’s undue influence over the deceased in procuring the will, whereas the second alleged fraud stems from Ms. Herrera’s actions in preventing Mr. Schilling from contesting the will in probate court. We acknowledge that pursuant to DeWitt, if only the first type of fraud was involved, Mr. Schilling’s collateral attack of the will would be barred. However, language contained in DeWitt clearly indicates that a subsequent action for intentional interference with an expectancy of inheritance may be permitted where “the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court.” Id. at 219.

This issue was later addressed by the Fourth District in Ebeling v. Voltz, 454 So.2d 783 (Fla. 4th DCA 1984). In Ebeling, the plaintiffs filed an action against the defendant for intentional interference with an expectancy of inheritance, alleging that, although they knew of the probate proceeding, they did not contest the will in probate court because the defendant made fraudulent statements inducing them not to contest the will. The trial court granted the defendant’s motion to dismiss, finding that pursuant to section 733.103, Florida Statutes (1983), the plaintiffs were barred from attacking the will. The Fourth District reversed, finding that “[e]xtrinsic fraud, or in other words, fraud alleged in the prevention of the will contest, as opposed to in the making of the will, would appear to be the type of circumstance that would preclude relief in the probate court.” Id. The court noted that the fraud alleged in the complaint prevented the plaintiffs from pursuing the incapacity claim in the probate court, and therefore, the action “falls into the category of cases that DeWitt considers outside the purview of Section 733.103(2), Florida Statutes.” Id.

In the instant case, we must accept the facts alleged by Mr. Schilling as true. He alleges in the amended complaint that when the decedent began to live in Ms. Herrera’s home, pursuant to powers of attorney executed by the decedent, Mr. Schilling was the decedent’s attorney-in-fact; throughout the decedent’s numerous illnesses, Mr. Schilling made decisions regarding the decedent’s care; Mr. Schilling traveled to Miami on numerous occasions to visit the decedent, whose condition progressively worsened; Mr. Schilling stayed in contact with Ms. Herrera while the decedent was living in her home; Mr. Schilling relied on Ms. Herrera to obtain information regarding the decedent; Mr. Schilling sent money to Ms. Herrera to pay for the decedent’s care; after the decedent passed away, Mr. Schilling called Ms. Herrera numerous times, but she would not return his calls; and Ms. Herrera did not inform Mr. Schilling of his sister’s death until after she petitioned for discharge of probate. As the facts in the amended complaint sufficiently allege that Mr. Schilling was prevented from contesting the will in the probate court due to Ms. Herrera’s fraudulent conduct, we find that the trial court erred in finding that Mr. Schilling’s claim for intentional interference with an expectancy of inheritance was barred.

Accordingly, we reverse the order dismissing Mr. Schilling’s amended complaint, and remand for further proceedings.

      . The 2005 version is substantially the same, except that the words "of the fact” have been eliminated.

      . Ms. Herrera argues that although she did not inform Mr. Schilling of the decedent's death until after she petitioned for discharge of probate, there was no fraud as Mr. Schilling learned of the decedent's death prior to the entry of the Final Order of Discharge. We find that this argument lacks merit.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Benjamin SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1216.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before FLETCHER, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Dragovich v. State, 492 So.2d 350 (Fla.1986).


text:
    Jose FIGUEROA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1043.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Jose Figueroa, who was convicted of attempted carjacking, claims that the trial court committed reversible error in limiting defense counsel’s individual voir dire of the jury panel. After reviewing the relevant portions of the transcript on appeal, we conclude that the trial court did not abuse its discretion in exercising its control over the voir dire examination, as its control was reasonable under the circumstances. See Franqui v. State, 699 So.2d 1312, 1322 (Fla.1997); Zamora v. State, 361 So.2d 776, 780 (Fla. 3d DCA 1978), cer. denied, 372 So.2d 472 (Fla.l979)(holding that trial court’s discretion in controlling scope of voir dire questioning will not be disturbed on appeal unless that discretion is clearly abused).

We, however, caution the trial judge that precluding defense counsel from individually questioning prospective jurors on critical issues may result in reversal.

Voir dire is the first opportunity the attorneys have to establish personal contact with prospective jurors and the only occasion they have to enter into a dialogue with jurors. Prospective jurors do not respond in the same manner to inquiry by a judge as they do to questions by counsel, particularly when the trial court asks the jurors to volunteer a response to collective examinations.

Miller v. State, 785 So.2d 662, 663 (Fla. 3d DCA 2001). While the trial court certainly has the discretion to limit repetitive and argumentative voir dire, to prohibit counsel from asking improper questions or questions that illicit answers on legal issues the jurors have not been instructed on, and to preclude attorneys from pre-trying their cases or in obtaining a commitment on ultimate issues to be decided after hearing all of the evidence, a trial judge must allow counsel to ascertain latent or concealed prejudgments by prospective jurors.

The defendant additionally asserts that he is entitled to a new trial based on the trial court’s denial of his motion to redact a portion of his pre-trial statement, and its introduction by the State at trial. We decline to address the propriety of the trial court’s evidentiary ruling as we conclude that the introduction of the objected-to portion of the defendant’s statement, if error, was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129,1139 (Fla.1986).

Affirmed.


text:
    FLOWSERVE CORP. (f/k/a Durametallic, Inc.), Petitioner, v. Thomas J. BONILLA, et al., Respondents.
    No. 3D06-2201.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Hawkins & Parnell (Atlanta) and Evelyn M. Fletcher, Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer, Fort Lauderdale, for petitioner.
    James L. Ferraro and David A. Jagolin-zer and Case A. Dam, Miami, for respondents.
    Ullman, Bursa, Hoffman & Regano and Daniel S. Green; Fowler, White, Boggs & Banker and Tracy Raffles Gunn, Tampa, for the Florida Defense Lawyers Association as amicus curiae.
    Shook, Hardy & Bacon and Frank Cruz-Alvarez for the Associated Industries of Florida as Amicus curiae.
    Before COPE, C.J., and WELLS and LAGOA, JJ.
   PER CURIAM.

Flowserve Corporation petitions for a writ of certiorari to quash an order of the trial court holding the Asbestos and Silica Compensation Fairness Act, §§ 744.201-209, Fla. Stat. (2005), to be unconstitutional when applied retroactively to respondents’ pending asbestosis claims. The respondents’ lawsuit was already pending on the July 1, 2005, effective date of the Act.

We grant the petition for certiorari and quash the order on the authority of DaimlerChrysler Corp. v. Hurst, 949 So.2d 279 (Fla. 3d DCA, 2007).

Petition for certiorari granted.


text:
    J.N., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2430.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See F.D. v. State, 927 So.2d 936 (Fla. 3d DCA 2006).


text:
    Willy PETIT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2384.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Clayton R. Kaeiser, Miami, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Coppola v. State, 938 So.2d 507 (Fla.2006).


text:
    Frank Rafael ENRIQUEZ, Appellant, v. FLORIDA PAROLE COMMISSION, etc., Appellee.
    No. 3D06-2379.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Frank Rafael Enriquez, m proper person.
    Anthony Andrews, Assistant General Counsel, Tallahassee, for appellee.
    Before RAMIREZ, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

Appellant, Frank Rafael Enriquez, appeals a trial court order denying an Emergency Petition for Writ of Prohibition or Temporary Injunction. In the petition, Enriquez alleged he was improperly placed on conditional release while simultaneously confined under the Jimmy Ryce Act. In the body of the order denying the Emergency Petition, the trial court also “barred [Enriquez] from filing any future petitions for extraordinary relief in Florida courts.” Enriquez appeals only that portion of the order prohibiting future filings.

Upon review of the record, we reverse that portion of the order barring Enriquez from further filings on the ground that it was entered without affording Enriquez due process to show cause why such an order should not be entered. See Jordan v. State, 760 So.2d 973 (Fla. 2d DCA 2000).

Reversed and remanded for proceedings consistent with this opinion.

      . § 394.910, Fla. Stat. (2003).

      . The trial court's order additionally purports to prevent Enriquez from filing any pleading or petition in any case in any circuit court throughout the entire state of Florida. Because we reverse on other reasons, we need not determine the propriety of this blanket bar.


author: PER CURIAM. SHEPHERD, J.,

text:
    Michael HARVARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2524.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender.
    Bill McCollum, Attorney General, and Laura Moszer, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

FLETCHER, J., and SCHWARTZ, Senior Judge, concur.

SHEPHERD, J.,

concurring in part and dissenting in part.

Because the trial court summarily denied defendant’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) without attaching necessary records conclusively refuting that the sentence defendant received was enhanced illegally with a three-year minimum mandatory sentence in case number F03-13705, and nothing in our record indicates the trial court possessed evidence conclusively refuting this point, I would reverse and remand for attachment of records or further proceedings. See Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2007). I therefore respectfully dissent on this point.

In all other respects, I join the majority.


author: MAY, J.

text:
    Roy KAHN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-549.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2007.

      Paul Morris of Law Offices of Paul Morris, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for aggravated assault with a firearm after entering a plea and reserving his right to appeal the denial of his motion to dismiss. He argues the trial court erred in denying his motion to dismiss based on double jeopardy grounds. We disagree and affirm.

For the same incident, the State charged the defendant with aggravated assault with a firearm while the federal government charged him with possession of a firearm by a convicted felon. The federal case was disposed of first. After a conviction, the federal court enhanced the defendant’s sentence based upon the circumstances giving rise to the aggravated assault charge in state court.

The defendant then moved to dismiss the state prosecution on double jeopardy grounds. He argued that the state court was prohibited from prosecuting him on the assault charge after the federal court had already enhanced his sentence for possession of a firearm by a convicted felon because the gun was used in the assault. He claimed the state prosecution constituted a double jeopardy violation. The state court denied the motion.

Reserving his right to appeal, the defendant pled nolo contendere to the aggravated assault charge in state court. The defendant continues to make the same argument on appeal. The State responds that this argument was effectively rejected by the Supreme Court of Florida in Booth v. State, 436 So.2d 36 (Fla.1983).

The United States and Florida constitutions prohibit the respective governments from subjecting citizens to being prosecuted twice for the same offense. Amends. V, XIV, U.S. Const.; Art. I, § 9, Fla. Const.; Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (making the Fifth Amendment applicable to the states through the Fourteenth Amendment). However, the doctrine of dual sovereignty prevents the doctrine of double jeopardy from being implicated. Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). “[Ujnder the doctrine of dual sovereignty, one may in fact be placed twice in jeopardy without being deprived of his constitutional protection.” Hernandez v. State, 397 So.2d 715, 717 (Fla. 1st DCA 1981).

We recognize that there may well be sound policy reasons for the adoption of a prosecutorial policy by the state executive branch similar to the federal policy, whereby the state would not bring a state prosecution following a federal prosecution, absent a compelling state interest. Nevertheless, such a policy is not constitutionally mandated by either the United States or Florida Constitutions, and we decline to establish or formulate prosecutorial policy under the guise of constitutional pronouncements.

Booth, 436 So.2d at 37-38 (citations omitted). Florida courts continue to adhere to the doctrine of dual sovereignty. See, e.g., Walker v. State, 825 So.2d 1014 (Fla. 4th DCA 2002). Since Booth, the Florida legislature has taken no action to restrict such prosecutions. We therefore affirm.

Affirmed.

STONE and FARMER, JJ., concur.

      . A claim raised on the ground that a violation of one's protection against double jeopardy occurred is reviewed de novo. State v. Florida, 894 So.2d 941, 945 (Fla.2005).


text:
    Henry ALLEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1894.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Before GREEN, RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Pollen v. State, 834 So.2d 380 (Fla. 3d DCA 2003) (sufficient evidence of witness tampering where shoplifter told store security guard he was coming back to see him, then returned to the store a few days after his arrest; security guard felt threatened and considered not testifying); Cunningham, v. State, 838 So.2d 627 (Fla. 5th DCA 2003) (noting that having a relative who had previously been criminally prosecuted is in itself a valid, race-neutral reason for exercising a peremptory challenge).


author: COPE, C.J.

text:
    Edward DORCH, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-573.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.

      Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, Miami, for petitioner.
    Bill McCollum, Attorney General, Orlando, and Michael C. Greenberg, Assistant Attorney General, Miami, for respondent.
    Before COPE, C.J., and WELLS and LAGOA, JJ.
   COPE, C.J.

Because the trial judge should have dis•qualified herself, we grant the petition for writ of prohibition.

Edward Dorch was the defendant in a violation of probation proceeding. Defendant-petitioner Dorch had been adjudicated incompetent to proceed with the probation violation hearing due to mental illness. The defendant had been reevaluated and the matter was pending for a determination whether the defendant had regained competency.

A hearing took place to determine where the defendant should be housed. During those proceedings the court said, ‘Why don’t we set him for Probation Violation Hearing, and send him to prison?” On the basis of this statement, the defendant moved to disqualify the trial judge. The motion was denied and the defendant has filed this petition for writ of prohibition.

We conclude that the motion for disqualification was legally sufficient and should have been granted. The Florida Supreme Court has said:

The facts alleged in the motion need only show that “the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge. If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.” Further, “it is a question of what feeling resides in the affiant’s mind and the basis for such feeling.”

Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983) (citations omitted).

The trial judge’s statement in this case would create a fear in the mind of a litigant that the trial judge had prejudged the case. “Florida’s courts have frequently held that a judge who has made statements indicating that he or she has predetermined the appropriate sentence is disqualified from presiding over the entire proceeding.” Konior v. State, 884 So.2d 334, 335 (Fla. 2d DCA 2004) (citations omitted). The State’s cases are not on point, and the State’s procedural arguments are without merit.

We therefore grant the petition for writ of prohibition, but being confident that the trial judge will withdraw, we need not formally issue the writ.

Petition granted.


author: GRIFFIN, J.

text:
    David Gregory HUFF, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3222.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2007.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

In this Anders case, we noted a significant discrepancy between the oral pronouncement of sentence and the written sentence on Counts II and III. The transcript reflects that appellant was sentenced to twenty-four days on Counts II and III, with credit for twenty-four days time served on each count. Yet, the judgment and sentence reflect that appellant was sentenced to twenty-four months on Counts II and III, with twenty-four days credit for time served. The crimes for which appellant was convicted in Counts II and III were first- and second-degree misdemeanors. The State concedes that the written sentence is erroneous. Accordingly, we vacate the sentences on counts II and III and remand this case to the trial court to correct what appears to be a scrivener’s error.

SENTENCE VACATED and REMANDED.

THOMPSON and SAWAYA, JJ., concur.


text:
    Ronald PARLEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4271.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2007.
    Ronald E. Parlee, Malone, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The lower court’s order, which summarily denied Appellant’s Rule 3.850 motion, is reversed and this cause is remanded with directions that the trial court either grant an evidentiary hearing on Appellant’s claims or attach portions of the record that conclusively refute each of Appellant’s claims. McLin v. State, 827 So.2d 948, 954 (Fla.2002).

REVERSED and REMANDED.

GRIFFIN, SAWAYA and TORPY, JJ., concur.


author: PLEUS, C.J.

text:
    Robin TERMAFOROOSH, Appellant, v. John WASH and Deen Wash, Appellees.
    No. 5D06-1773.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2007.
    Walter A. Ketcham, Jr., and Ramon Vazquez of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Maitland, for Appellant.
    David J. Kohs, of Pohl & Short, P.A., Winter Park, for Appellee.
   PLEUS, C.J.

Robin Termaforoosh (“buyer”) appeals a final partial summary judgment finding that he breached a contract for sale of commercial property and awarding John and Deen Wash (“sellers”) the buyer’s $10,000 deposit. We have jurisdiction because the judgment grants to the sellers the right to immediate possession of the $10,000 deposit. Fla. R.App. P. 9.130(a)(3)(C)(ii). Because a material issue of fact exists as to whether the buyer obtained an “appraisal,” as required by the contract, we reverse.

Facts

The buyer sued the sellers for return of his $10,000 deposit on a contract for sale and purchase of commercial real property. His claim was based upon the following clause in an addendum to the contract:

6. It is understood by both parties that the only remaining contingency is the appraisal of said property. Therefore, both parties agree that the appraisal must be equal to or greater than the agreed upon sales price or the buyer may cancel the contract and have the full amount of the $10,000.00 deposit returned to him.

The buyer alleged that he applied for a loan on the property at Wachovia Bank. During the application process, Wachovia appraised the property value at $600,000, which was less than the agreed upon selling price of $640,000. As evidence of the appraisal, the buyer attached a letter from Wachovia Bank. It stated, in pertinent part:

Rob,
Per our conversation, the property located at 370 Blue Heron Drive came in with a value of $600,000. This value was based on the following comps.
—2527 Aloma Ave
—1490 W. Fairbanks Ave
—1412 Trovillian Ave
• — 1788 Fairbanks Ave
—212 E Smith Street
Please call me if you have any questions. Sincerely,
/s
Brian Wickham
Wachovia Small Business Banker

Although the buyer cancelled the contract and requested the return of his deposit, the sellers refused.

The sellers filed an answer denying that the letter was an appraisal. They also included counterclaims for specific performance and damages. The sellers later filed a motion for summary judgment alleging that the buyer breached the contract by failing to close on the property. Regarding the appraisal issue, the sellers argued that the Wachovia letter was not a “qualified appraisal.”

Shortly before the hearing on the motion for summary judgment, Brian Wick-ham was deposed. He testified that he was a small business banker with Wacho-via Bank. The buyer attempted to obtain a loan from, him to buy the property in question. After the buyer’s application was accepted and the buyer agreed to the loan terms, Wachovia began its due diligence process, which included getting an appraisal of the property. When asked to explain his use of the term “appraisal,” Wickham stated:

We’ve basically got two major ways that we come up with a value. We do at that point what we call a Type Seven appraisal, which is an internal evaluation. Internal meaning for bank use only. How that process works is we have a commercial appraiser locally that takes pictures and pulls comps, compa-rables. He acts strictly in a consultative role, sends all the information to our inhouse appraisal group up in Charlotte, who then look at what he’s provided and determine a value, adjust accordingly and come up with a value.

The in-house appraisal group in Charlotte looked at comparables, square footage, price per square footage and then came up with a value. The bank would loan the customer 80% of that value. The Type Seven Appraisal in this case yielded a valuation of $600,000, which was less than the contract price of $640,000. According to Wickham, other banks similarly situated to Wachovia have a Type Seven Appraisal process to determine how much money they will loan on a property. ■

If the buyer was not satisfied with the “Type Seven Appraisal,” he could pay for a “traditional appraisal, which is where they do a cost approach, an income approach and a market approach, which is what you normally think of in a commercial appraisal .... ” That would cost $2,700 to $3,500.

On cross-examination, Wickham acknowledged that the local appraiser did nothing more than take pictures of the property, locate comparable properties and send that information to the in-house team in Charlotte. Wickham did not know if the in-house people were certified real property appraisers. Wickham reiterated that the Type Seven Appraisal was an “internal evaluation for bank purpose only.”

At the hearing on the motion for summary judgment, both parties cited to Wickham’s deposition testimony to support their positions. The sellers argued that Wickham’s letter was not an appraisal, Wickham’s testimony was not competent to establish the existence of an appraisal, and the Type Seven Appraisal was not a real appraisal. The buyer argued that it was sufficient. The trial court reserved ruling to review the deposition. The court later granted partial final summary judgment finding that the buyer had breached the contract and was therefore precluded from pursuing his claim for return of the deposit.

Analysis

Generally, the party moving for summary judgment must prove conclusively the nonexistence of any genuine issue of material fact. Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303, 304-05 (Fla. 5th DCA 2003). The trial court, and the appellate court on review, “must view the evidence contained in the record, including any properly asserted supporting affidavits, in the light most favorable to the non-moving party, and if the slightest doubt exists, the summary judgment must be reversed.” Id. at 305.

The construction of a contract term is ordinarily a question of law so long as the terms used are “unequivocal, clear, undisputed and not subject to conflicting inferences.” Campaniello v. Amici P’ship, 832 So.2d 870, 872 (Fla. 4th DCA 2002). However, if the terms are disputed and rationally susceptible to more than one construction, an issue of fact is presented, precluding summary judgment. Id.

The buyer asserts that the term “appraisal” means “[t]he determination of what constitutes a fair price; valuation, estimation of worth. The report of such determination.” Black’s Law Dictionary, 96 (7th ed.1999). The sellers argue that such a broad definition would permit virtually anyone to assign a value to a property, regardless of their qualifications or methods. As the sellers note, “[wjords should be given their natural meaning or the meaning most commonly understood in relation to the subject matter and circumstances, and reasonable construction is preferred to one that is unreasonable.” Thompson v. C.H.B., Inc., 454 So.2d 55, 57 (Fla. 4th DCA 1984). Consequently, they offer the following definition from an earlier edition of Black’s: “A valuation or an estimation of value of property by disinterested persons of suitable qualifications. The process of ascertaining a value of an asset or liability that involves expert opinion rather than explicit market transactions.” Black’s Law Dictionary, 100 (5th ed.1990); see also The American Heritage Dictionary of the English Language (4th ed.2000), available at http://www.bartleby. com/61/23/A0382300.html (“1. The act or an instance of appraising. 2. An expert or official valuation, as for taxation.”); Merriam-Webster Online Dictionary, available at http://m-w.com/dictionary/ appraisal (“an act or instance of appraising; especially: a valuation of property by the estimate of an authorized person.”). All of these definitions suggest a common element, which is that the valuation of property be made by an expert or other qualified person.

We agree with the sellers that in the context of a commercial real estate contract, the most commonly understood interpretation of the term “appraisal” would include a valuation by a person with some amount of expertise or qualifications, as suggested by the above definitions. However, even under these definitions, the evidence raises an inference that the Wacho-via Type Seven Appraisal was done by experts or otherwise qualified people. Wickham testified that the appraisal was (1) performed by Wachovia’s in-house appraisal team in Charlotte, North Carolina, (2) relied upon by Wachovia and other similarly situated banks to determine how much money to lend on a commercial property; and (3) relied upon by Wachovia to offer to lend the buyer in this case 80% of $600,000. Whether this evidence is ultimately sufficient to constitute an appraisal under the contract is a question for the trier of fact to resolve.

Alternatively, the sellers invite us to apply the statutory definition of “appraisal,” which is the valuation of property by “certified or licensed appraisers.” § 475.611(l)(a), Fla. Stat. (2005). The problem with this definition is that the addendum does not specify a “certified” appraisal, “licensed” appraisal or any other type of appraisal. Elsewhere in the contract, the parties agreed that the buyer would obtain a “certified survey of the Property from a registered surveyor.” If the sellers wanted a certified appraisal, they should have so specified.

Accordingly, we reverse the final partial summary judgment and remand the case for a trial on the merits.

Appellate Attorney’s Fees and Costs

Both parties filed motions for appellate costs and attorney’s fees pursuant to a prevailing party clause in the contract. Based on our resolution of this appeal, we deny the sellers’ motion and award the buyer appellate attorney’s fees and costs, conditioned upon ultimately prevailing below. See, e.g., Wilson v. Southern Repair Servs., Inc., 812 So.2d 445 (Fla. 5th DCA 2001).

REVERSED AND REMANDED.

THOMPSON and ORFINGER, JJ., concur.


text:
    Thomas FITZGERALD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1446.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal of a restitution order entered as to property stolen from victims who are mother and daughter.

We reverse the restitution only as to the value of the mother’s stolen purse and wallet, as these values were -based solely on the prices found in a catalog. The hearsay evidence as to catalog prices was the only proof of value presented by the state. See Walentukonis v. State, 932 So.2d 1136 (Fla. 2d DCA 2006) (reversing restitution where the trial court took judicial notice of “the NADA Blue Book Average Retail Value” without other evidence as to the value of a truck); M.M.S. v. State, 877 So.2d 941 (Fla. 2d DCA 2004) (finding “trial court improperly relied on hearsay evidence in determining the value of a stolen ring”); Aboyoun v. State, 842 So.2d 238 (Fla. 2d DCA 2003) (remanding for a new restitution hearing where the only evidence offered to establish the value of four necklaces was the victim’s testimony he had received the necklaces as gifts from his parents, and his parents informed him of how much they had paid for the necklaces); Korica v. State, 791 So.2d 543 (Fla. 2d DCA 2001) (reversing because the victim had no personal knowledge of the value of any missing items, but testified as to the value based on telephone conversations with her mother and the stores where the items were purchased).

Therefore, we reverse and remand for a new restitution hearing as to the fair market value of the mother’s purse and the wallet.

STONE, FARMER and MAY, JJ., concur.


author: SHAHOOD, J.

text:
    Alexandra PFLIEGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1956.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.

      Donna P. Levine of Law Office of Donna P. Levine, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

The county court certified the following as a question of great public importance:

Whether the introduction of the annual inspection of the breath testing instrument or intoxilyzer as a business or public record violates the Confrontation Clause as interpreted by Crawford v. Washington where the State does not produce any testimonial evidence as to actual annual inspection?

For the reasons stated below, we answer the certified question in the negative.

Appellant was charged with DUI. After being stopped, she agreed to give a breath test. The Intoxilyzer 5000 was the instrument used to record her blood-alcohol level.

At trial, the State called the breath technician Shari O’Neal of the Palm Beach County Sheriffs Department to testify. O’Neal testified that she was the maintenance technician for the applicable Intoxi-lyzer 5000. Although she did not conduct the annual inspection for the applicable Intoxilyzer 5000 herself, she did observe the annual inspection. Over objection, the annual department inspection report for the applicable Intoxilyzer 5000 was admitted into evidence.

. The jury found appellant guilty of DUI and the trial court subsequently issued an order certifying a question of great public importance to this court. The certified question is the first issue in this appeal.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment excludes from evidence any out of court, testimonial statements unless the witness is found to be unavailable and the defense is provided a prior opportunity for cross-examination. Id. at 68, 124 S.Ct. 1354.

The Supreme Court in Crawford provided only a narrow and non-exhaustive list of what may constitute testimonial hearsay, including “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations.” Id. at 68, 124 S.Ct. 1354. None of these categories apply in this case. However, the Court in Crawford also provided that business records “by their nature” are not testimonial. Id. at 56, 124 S.Ct. 1354. Nevertheless, some Florida Districts have held that simply because a statement may be labeled as a business record, does not mean that it loses its testimonial nature. Card v. State, 927 So.2d 200, 203 (Fla. 5th DCA 2006); Johnson v. State, 929 So.2d 4, 8 (Fla. 2d DCA 2005), rev. granted, 924 So.2d 810 (Fla.2006).

For evidence that does not fit in the Court’s list, the Court instructed that all “formulations ... of testimonial statements” share a “common nucleus.” Crawford, 541 U.S. at 52, 124 S.Ct. 1354. This “common nucleus” present in the various formulations centers on the reasonable expectation of an objective declarant that the declarant’s statement may later be used in the investigation or prosecution of a crime. Shennett v. State, 937 So.2d 287, 291 (Fla. 4th DCA 2006). This distinction has been applied to a variety of evidence to determine their testimonial nature. For example, the court in Card found that a driving record was not testimonial, explaining:

A driving record properly authenticated by the DHSMV does not seem to us to be testimonial because it is not accusatory and does not describe specific criminal wrongdoing of the defendant. Rather, it merely represents the objective result of a public records search.
Driving records are kept in Florida for the public benefit and are not solely prepared for trial purposes. A driving record contains neither expressions of opinion nor conclusions requiring the exercise of discretion, and is not made or kept for law enforcement or trial purposes.

927 So.2d at 203; see also Sproule v. State, 927 So.2d 46 (Fla. 4th DCA 2006). Nor was a hospital record of a blood test, which is maintained by the hospital as a medical or business record considered testimonial. Baber v. State, 775 So.2d 258 (Fla.2000). In Baber, the Florida Supreme Court found that the test was administered at the hospital for the purposes of medical treatment, not for the purpose of litigation. Id. at 263. The court explained, the “hospital ... did not have an interest in the outcome of the future criminal case lodged against the defendant.” Id. at 262.

Appellant cites to Shiver v. State, 900 So.2d 615 (Fla. 1st DCA 2005), which found that a trooper’s affidavit, establishing the date of the most recent breathalyzer maintenance report, was inadmissible. However, Shiver is distinguishable. In Shiver, the trooper who made the affidavit testified at trial that he did not perform the maintenance nor was he qualified to testify as to whether the instrument met the required statutory predicates. Id. at 618. O’Neal, on the other hand, is a certified maintenance technician with the Palm Beach County Sheriffs Office and observed the annual inspection. Furthermore, the actual documentation of the inspection was entered into evidence rather than simply mentioned in a breath test affidavit. Similarly, in other jurisdictions, certified copies of a breathalyzer’s maintenance and test records have been admitted into evidence without in-court testimony by the breath-alcohol technician who performed the maintenance and tests. See, e.g., Commonwealth v. Walther, 189 S.W.3d 570 (Ky.2006) (“Every jurisdiction but one that has considered this issue since Crawford has concluded that maintenance and performance test records of breath-analysis instruments are not testimonial, thus their admissibility is not governed by Crawford.”); Jarrell v. State, 852 N.E.2d 1022, 1026 (Ind.Ct.App.2006); People v. So Young Kim, 368 Ill.App.3d 717, 307 Ill.Dec. 92, 859 N.E.2d 92, 94 (2006); State v. Carter, 326 Mont. 427, 114 P.3d 1001,1007 (2005).

Annual inspection reports contain an inspector’s technical review of the In-toxilyzer 5000 pursuant to the applicable administrative requirements. Pursuant to Florida Administrative Code Rule 11D-8.006(1), evidentiary breath test instruments shall be inspected by an agency inspector at least once each calendar month. This inspection “validates the approval, accuracy and reliability of an evi-dentiary breath test instrument.” Fla. Admin. Code R. llD-8.003(4). Unlike Shiver, where an affidavit was specifically prepared for trial that mentions portions of the report, the actual maintenance report is not compiled during the investigation of a particular crime, as Crawford contemplates. Bohsancurt v. Eisenberg, 212 Ariz. 182, 129 P.3d 471, 477 (2006). The evidence is not “against” any particular defendant. Id.; see Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (confrontation clause “applies to ‘witnesses’ against the accused”). “[D]ocuments establishing the existence or absence of some objective fact, rather than detailing the criminal wrongdoing of the defendant, are not ‘testimonial.’ ” Michels v. Commonwealth, 47 Va.App. 461, 624 S.E.2d 675, 678 (2006).

Taking the above cases and the purpose behind annual inspection reports into consideration, we hold that those reports are non-testimonial. An inspection report, like the hospital record of a blood test, is intended for the non-testimonial purpose of making sure the machine is working properly or for accurate medical treatment, respectively. Using these reports for a litigation purpose is a secondary purpose and therefore does not raise the concerns expressed in Crawford of unreliability.

Appellant next argues the trial court erred in admitting the breath test results when it ruled appellant was not entitled to the manufacturers’ proprietary “source code” information for the Intoxilyzer 5000. We affirm as to this issue. See Moe v. State, 944 So.2d 1096 (Fla. 5th DCA 2007).

The final issue raised by appellant we hold to be without merit and affirm.

Affirmed.

STEVENSON, C.J., and KLEIN, J., concur.


text:
    Edgar JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-550.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.

      Scott D. Rubinchik of Scott Rubinchik, P.A., Plantation, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals an order that revoked his probation, adjudicated' him guilty, and sentenced him on a violation of probation. He argues the basis for the violation was an uncounseled, no contest plea to a misdemeanor charge in special magistrate’s court that should not have been used to violate his probation. We agree and reverse.

The defendant was placed on probation in June 2004 for possession of cocaine with the intent to deliver or sell and resisting without violence. The probation order provided that he was not to “violate any law of any city, county, state or the United States.” One week later, his probation officer submitted an affidavit for violation of probation alleging that the defendant was arrested for possession of cannabis, operating a motor vehicle without a valid driver’s license, and obstructing justice without violence.

At a special magistrate’s hearing that followed, the defendant entered a no contest plea to the misdemeanor charges via video camera. The special magistrate sentenced him to time served.

The defendant subsequently appeared before the felony judge for a hearing on the violation of probation. Defense counsel advised the court that the uncounseled plea was an insufficient basis for revocation of the defendant’s probation. The State informed the court that it did not have notice of this defense, but that it would rely on certified convictions and would be willing to have the arresting officers come in and testify later in the week. The defense objected to any continuance and the hearing proceeded.

The defense stipulated that a probation officer had instructed the defendant concerning the terms of his probation. The probation officer then testified that the defendant had been arrested on new charges and had pled no contest to them.

The defendant testified that he was arrested and that he had been instructed that a new conviction would violate his probation. He then testified that the special magistrate did not inform him of his right to counsel, that he had not heard a videotape advising him of his rights, and did not know that he had the right to counsel at that proceeding. He did not complete an indigency affidavit and was not asked to waive his right to counsel.

The State established that the defendant had been appointed counsel in the original underlying case and was therefore aware of his right to counsel. It argued that the defendant had failed to show that his plea had been entered into unknowingly or involuntarily. Defense counsel responded:

[A]t the time [the defendant] entered the plea [he] was not advised of his right to counsel. He was not advised as to the consequences of the plea, and as an officer of the Court, on December 22nd, we are going to move to vacate that plea, based on the fact it was uncoun-seled.

The trial court suggested that a hearing transcript or copy of the video from the special magistrate’s hearing would be the best evidence, but that was not made available. The court took judicial notice of the defendant’s entitlement to counsel, and accepted the defendant’s indigent status. However, the court indicated the record did not reflect any affirmative action on the part of the defendant to either request counsel or assert his rights that he was aware of by his prior contact with the system. Relying on Angel v. State, 769 So.2d 494 (Fla. 4th DCA 2000), the court found that the defendant’s statement that he did not recall whether he had been advised of his rights by the special magistrate was fatal to his position. The trial court revoked the defendant’s probation, adjudicated him guilty, and sentenced him to thirty months incarceration in the Florida State Prison. The defendant subsequently withdrew his uncounseled plea in misdemeanor court.

On appeal, the defendant continues to maintain that his uncounseled plea cannot be the basis for the trial court’s revocation of his probation. He claims to have met the burden of showing:

(1) that the offense involved was punishable by more than six months of imprisonment or that the defendant was actually subjected to a term of imprisonment; (2) that the defendant was indigent and, thus, entitled to court-appointed counsel; (3) counsel was not appointed; and (4) the right to counsel was not waived.

State v. Beach, 592 So.2d 237, 239 (Fla.1992).

The State responds that the defendant’s failure to recollect whether he waived his right to counsel is fatal to his position. In addition, the defendant’s prior experience with the criminal justice system supports the trial court’s finding that he should have taken some affirmative step to assert his known right to counsel.

We normally review trial court orders on violations of probation for an abuse of discretion. State v. Carter, 835 So.2d 259, 262 (Fla.2002). However, in this instance, the issue is not whether the defendant’s violation was willful and substantial, but whether the defendant met his burden of establishing that his plea was uncounseled. This presents a mixed question of law and fact. We review the legal issue de novo while accepting the trial court’s factual findings as true when supported by competent, substantial evidence. State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001).

Convictions based upon uncoun-seled pleas to offenses punishable by more than six months imprisonment cannot be used to “support [a] revocation of probation if there is no waiver of counsel.” State v. Rock, 605 So.2d 456, 458 (Fla.1992). The defendant bears the initial burden of showing the four factors outlined above. Angel v. State, 769 So.2d 494, 495 (Fla. 4th DCA 2000). The burden then shifts to the State “to show either that counsel was provided or that the right to counsel was validly waived.” Id. at 496.

Here, the defendant established, and the trial court found, that he was subjected to an offense punishable by more than six months imprisonment, was indigent, and was entitled to counsel. And, the defendant testified that he neither signed a waiver of counsel nor told the special magistrate that he waived his right to counsel.

During the violation hearing, the State and the trial court mistakenly focused on the defendant’s prior experience with the criminal justice system to establish knowledge of his rights and to require some affirmative act on his part to request counsel. Neither Beach nor Angel support the analysis undertaken by the trial court in this case. Once the defendant met his initial burden, that burden shifted to the State to prove that either counsel was provided or that the defendant validly waived his right to counsel. The State failed to establish either.

Reversed and Remanded.

STONE and FARMER, JJ., concur.


text:
    George DESSOUCE, a/k/a Jocelyn Desrosiers, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2150.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Junior Farquharson, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

The appellant seeks review of an order that summarily denied his rule 3.850 motion seeking to withdraw a 1986 plea, claiming his public defender improperly advised him of the immigration consequences of that plea. The lower court denied relief prior to the recent supreme court ruling of State v. Green, 944 So.2d 208 (Fla.2006), instead relying upon Peart v. State, 756 So.2d 42 (Fla.2000). The supreme court has receded from the pleading requirements of Peart. The movant must now allege at least, “the trial court did not advise him at the time of his plea that he could be deported, that he would not have entered the plea if properly advised, and that the plea in fact renders him subject to deportation.” Green, 944 So.2d at 219. In the instant case, the appellant failed to satisfy all of these pleading requirements, thus the summary denial must be affirmed. However, in accordance with Green, the affirmance is without prejudice to “his filing a new motion within sixty days after jurisdiction returns to the trial court.” Id.

Affirmed without Prejudice.

FARMER, HAZOURI and MAY, JJ., concur.


text:
    Idris CHRISTIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-204.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Christie v. State, 951 So.2d 1029 (Fla. 4th DCA 2007).

GUNTHER, POLEN and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    Torrence WHITAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05AU95.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

The state charged the appellant by information with the crimes of aggravated assault with a firearm and possession of a firearm by a convicted felon. The jury found the appellant guilty of improper exhibition of a firearm, a lesser-included offense of the aggravated assault charge, and possession of a firearm by a convicted felon. On appeal, the appellant contends that the trial court committed fundamental error by changing the lesser-included offense of improper exhibition of a dangerous weapon to improper exhibition of a firearm in the jury instructions. The appellant also suggests that, in changing the instructions after the parties’ closing arguments, the judge made an improper comment on the evidence. We disagree on both points and affirm.

Section 790.10, Florida Statutes, prohibits improper exhibition of dangerous weapons or firearms, and provides:

790.10. Improper exhibition of dangerous weapons or firearms — If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

§ 790.10, Fla. Stat. (2004). The statute draws no relevant distinction between firearms and the other enumerated dangerous weapons. Additionally, the standard jury instruction on “improper exhibition of a weapon” specifically contemplates that the trial court is to instruct the jury on the specific weapon alleged in the charging instrument. See Fla. Std. Jury Instr. (Crim.) 10.5.

Accordingly, we find no fundamental error in the court’s instruction to the jury. The change in the title of the jury instruction — from “Improper Exhibition of a Weapon” to “Improper Exhibition of a Firearm” — did not change .the essential elements of the crime, nor was it misleading in any way. The present case is readily distinguishable from Kirkland-El v. State, 883 So.2d 383 (Fla. 4th DCA 2004), and Knuth v. State, 679 So.2d 22 (Fla. 2d DCA 1996). In each of those cases, the trial court substantially changed the jury instructions after the defense began its closing argument, which damaged the defendant’s presentation of his case and deprived him of a fair trial. Here, by contrast, the change in the title of the instruction on “improper exhibition” did not undermine the appellant’s closing argument at all — the defense argued in closing that the appellant never possessed a firearm. Thus, this point on appeal is without merit.

Finally, we also reject any suggestion that the trial court’s instruction to the jury constituted an improper comment on the evidence. From our review of the record, it is clear that the trial judge did not make any remarks that intimated a personal belief that the appellant used a firearm during the incident in question.

Affirmed.

STEVENSON, C.J., and TAYLOR, J., concur.


text:
    UNITED INVESTMENT & DEVELOPMENT CORP., Appellant, v. Linda LANGTON, Appellee.
    No. 4D06-346.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Mara Shlackman, P.L., Fort Lauderdale, for appellant.
    No brief filed for appellee.
   PER CURIAM.

The buyer appeals an adverse judgment on the pleadings in an action for breach of a contract for the sale of real property. She argues the trial court erred by considering facts outside of the pleadings in ruling on the motion. We agree and reverse.

The buyer filed a verified complaint against the seller, alleging a contract for the purchase of real property. The seller moved to dismiss arguing that the complaint failed to state a cause of action. The trial court denied the motion. The seller answered the complaint, alleged affirmative defenses, and filed a counterclaim.

The defendant then moved for a judgment on the pleadings, which the trial court initially denied. The seller, however, filed a motion for rehearing and claimed that she had not received a subsequently-filed memorandum from the buyer before the court ruled on her motion. She also filed a memorandum contesting certain statements contained in the buyer’s memorandum. The trial court granted the motion for rehearing, reversed its decision, and granted the seller’s motion for judgment on the pleadings.

The buyer argues the trial court erred when it granted the seller’s motion for judgment on the pleadings since its verified complaint properly pleaded a claim for breach of contract. We agree.

We review judgments on the pleadings de novo. Martinez v. Fla. Power & Light Co., 863 So.2d 1204, 1205 (Fla.2003). All well-pleaded allegations must be accepted as true for purposes of ruling on a motion for judgment on the pleadings. Id. We have reviewed the buyer’s verified complaint and find that it sufficiently alleges a claim for breach of contract. J.J. Gumberg Co. v. Janis Servs., Inc., 847 So.2d 1048, 1050 (Fla. 4th DCA 2003). The trial court erred when it considered facts beyond the pleadings in ruling on the motion.

Reversed and Remanded.

STONE, FARMER and MAY, JJ„ concur.


text:
    David SMYLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4850.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    David Smyly, Boca Raton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant challenges the revocation of his probation, claiming that the trial court erred in denying his motion for discharge under the speedy trial rule. However, Florida Rule of Criminal Procedure 3.191 does not apply to revocation of probation proceedings. See Piz v. State, 826 So.2d 1063 (Fla. 2d DCA 2002); Gonzalez v. State, 447 So.2d 381, 382 (Fla. 3d DCA 1984). We therefore affirm but remand for the trial court to enter a written order of revocation of probation.

Affirmed and remanded.

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    Blondine EMELIEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-561.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Rehearing Denied April 11, 2007.
    Dan Hallenberg of The Law Office of Dan Hallenberg, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We withdraw our previous opinion filed on February 14, 2007 and replace it with this opinion.

Appellant was convicted of improper exhibition of a deadly weapon. She argues that error occurred when a detective testified that, after he questioned the victim while investigating the crime, he believed she was being truthful. Appellant failed to object to this testimony and the issue is accordingly waived. We have considered the other issues raised by appellant and find them to be without merit.

Affirmed.

STEVENSON, C.J., KLEIN and SHAHOOD, JJ., concur.


author: CANADY, Judge.

text:
    Jesus REYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4890.
    District Court of Appeal of Florida, Second District.
    April 11, 2007.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Jesus Reyes appeals his convictions for trafficking in methamphetamine and maintaining a structure for using, keeping, or selling controlled substances. On appeal, Reyes claims that the State failed to show that the arresting officer had probable cause to search his car based on the information the officer received from a confidential informant. We conclude that this issue was not preserved for appeal. Reyes also claims that the trial court erred in prohibiting him from establishing the informant’s identity during trial. We affirm on this point without discussion.

Background

Reyes filed a motion to suppress drugs taken from his person, vehicle, and residence and any statements made to law enforcement. Reyes argued for suppression of the statements based on various grounds. As grounds for suppression of the drug evidence, Reyes generally alleged that “[t]he evidence was illegally seized without a warrant, in violation of fourth and fourteenth amendments to the United States Constitution and the Constitution of the State of Florida.” He also alleged that “[t]he evidence was obtained only as a result of an illegal search without a warrant,” that the evidence was tainted as “having been obtained only as a result of illegal law enforcement activity,” that “[t]he evidence was obtained in violation of the defendant’s right to privacy,” and that “[t]he evidence was obtained as a result of an illegal investigatory detention of the defendant and his girlfriend and her family.”

In the section of the motion in which he described the factual basis for the motion, Reyes stated that “[o]n August 4, 2004[,] law enforcement officers stopped the defendant on a pretext ‘[C]arrol[l] stop’ reason and searched the defendant’s vehicle.” The remainder of the facts in the motion described the events that occurred after the drugs were found in Reyes’s car.

At the hearing on the motion to suppress, defense counsel informed the court that the defense was “attempting to suppress both the small amount of drugs that was found ostensibly on a Carroll stop of a vehicle in which my client was a passenger, as well as the subsequent warrantless search of his residence without a warrant after his arrest at another location.” Defense counsel argued that the defense’s argument, “in a nutshell,” was “[t]hat this consent that is alleged by the State was not freely and voluntarily given but was the product of coercion, duress and threats on [the] part of law enforcement toward my immigrant client and his Spanish-speaking relatives.” - ■

The following discussion then occurred:
[THE STATE]: As I read this motion, nowhere in here does it say it was an illegal stop of the vehicle. The statements — as I read the motion it was to suppress any statements or admissions and the search of the house. I’ve seen the actual basis he [termed] it as a pretext Carroll stop.
THE COURT: Well, it says any narcotics seized from the defendant’s person, automobile, or dwelling.
[THE STATE]: Right. But again, there’s no grounds for a suppression that it was an illegal stop. The only thing it ever talks about is the detention. And as I read it, when I read the facts, was the detention pertaining [to] the search of the house. The State can still present the testimony of the stop. I just don’t have case law concerning the stop itself.
THE COURT: Okay. Shouldn’t be a problem.
[DEFENSE COUNSEL]: It does say a pretext to the stop, Judge.
THE COURT: I saw it. Okay. Call your first witness if you would.

The State then called Detective Floyd to the stand. Detective Floyd testified regarding his contact with the informant and the arranged drug buy which led to Reyes’s arrest. Detective Floyd testified that on August'4, 2004, he made contact with an informant, who arranged a drug buy with a Mexican male named “Jesus.” The informant arranged for “Jesus” to deliver methamphetamine to a particular address in Wahneta. When “Jesus” arrived at the address at the agreed-upon time, Detective Floyd made contact with “Jesus,” whose actual identity was Jesus Reyes. Detective Floyd detained Reyes and searched his vehicle, finding methamphetamine in the vehicle. Detective Floyd testified that Deputy Jose Aponte arrived at the scene and advised Reyes of his Miranda rights in Spanish. Deputy Aponte advised Detective Floyd that Reyes admitted to Aponte that Reyes knew about the drugs and that Reyes stated he was trying to support his sick child in Mexico.

Deputy Aponte also testified at the hearing. According to both officers, a young woman, who was Reyes’s girlfriend’s daughter, was in the car with Reyes when he was arrested and the officers questioned the woman. The officers took Reyes and the woman to Reyes’s residence, in which he lived with his girlfriend, where the officers received permission from his girlfriend to search the house. At the house, the officers found more methamphetamine.

The young woman, Reyes’s girlfriend, and Reyes also testified at the suppression hearing. At the close of the hearing, defense counsel did not make any legal argument.

The trial court denied Reyes’s motion to suppress by written order, “finding] the stop and subsequent search of [Reyes’s] vehicle was lawful.” The trial court also found that Reyes’s statements to the deputies as well as his girlfriend’s consent to enter and search the house were freely and voluntarily given.

Reyes proceeded to trial and was convicted as charged of both offenses and sentenced to ten years in prison with a seven-year minimum mandatory term on the trafficking count and to time served on the maintaining a structure count.

Argument on Appeal

On appeal, Reyes claims that the trial court erred in denying his motion to suppress because the State failed to show that Detective Floyd had probable cause to search the car. Specifically, Reyes argues that there was no evidence'that the informant used by Detective Floyd had been reliable in the past and that the details observed by Detective Floyd were insufficient to establish the reliability of the information given to him by the informant.

Analysis

Section 924.051(3), Florida Statutes (2004), provides:

An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.

Section 924.051(l)(b) provides:

“Preserved” means that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.

The Florida Supreme Court has held that

proper preservation entails three components. First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”

Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (alteration in original) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982)). “It is well settled that the specific legal ground upon which a claim is based must be raised at trial and a claim different than that raised below will not be heard on appeal.” Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992).

Here, the specific issue argued by Reyes on appeal was not raised before the trial court and therefore was not preserved for appellate review. Reyes did not argue in his motion to suppress or at the hearing on his motion that the information provided to Detective Floyd by the informant was insufficient to establish probable cause for the search of Reyes’s car. Reyes only asserted general grounds in support of his argument for suppression of the drug evidence, and none of the grounds made reference to the informant or the information provided by the informant. Reyes’s citation to Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which established the general automobile exception to the warrant requirement and did not involve the reliability of a confidential informant, was insufficient to preserve the issue he now raises on appeal. See § 924.051(3); Perez v. State, 919 So.2d 347, 359 (Fla.2005) (holding that appellant’s specific claims in support of his argument on appeal that the trial court erred in denying his motion to suppress were not preserved because they were “never presented to the trial court in [appellant's motion or in the corresponding hearing”); Morrison v. State, 818 So.2d 432, 446 (Fla.2002) (holding that because appellant “did not argue the point he now raises below [in support of his motion to suppress], he is foreclosed from raising that argument” on appeal); Cady v. State, 817 So.2d 948, 949 (Fla. 2d DCA 2002) (holding that specific argument that “there was no probable cause for the stop of the vehicle because there is no statutory authority for a stop based on a lane change in an intersection” was not preserved for review because it “was not made before the trial judge”; rather, appellant “argued [below] that the stop was pretextual because the officers were looking for a reason to stop the driver”); Phillips v. State, 877 So.2d 912, 913 (Fla. 4th DCA 2004) (holding that appellant’s claim “that the trial court erred in denying his motion to suppress since he was not adequately advised of his Miranda rights prior to giving a statement” was not preserved for appeal because it was not the “specific, contemporaneous objection” he made below); Forrester v. State, 565 So.2d 391, 393 (Fla. 1st DCA 1990) (holding that appellant’s argument “that the use of the sniff dog violated his constitutional right to privacy” was not preserved for appeal because it was not part of his general argument made in his motion to suppress that the sniff dog violated his constitutional rights).

Conclusion

Because the error raised on appeal was not preserved, it cannot provide a basis for reversal. Reyes’s convictions are affirmed.

Affirmed.

DAVIS and LaROSE, JJ., Concur.

      . Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).


author: STRINGER, Judge.

text:
    Sean Michael MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1313.
    District Court of Appeal of Florida, Second District.
    April 11, 2007.
    James Marion Moorman, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Sean Michael Morales seeks review of his conviction for attempted manslaughter. Morales argues that the trial court erred in denying his motion for judgment of acquittal and in giving a jury instruction for attempted second-degree murder. We conclude that neither issue has merit but write to explain why the State’s evidence of Morales’ intent was sufficient to withstand his motion for judgment of acquittal.

On May 6, 2004, Morales attended a party at the home of Charles Cardinal; Cardinal’s girlfriend, Madison Brown; and their friend, Charles Retter. There were no arguments between anyone at the party. The guests left around 7:30 p.m., and Retter passed out drunk on his mattress in his bedroom between 8:30 and 9 p.m.

A few hours later, Morales returned to the home and knocked at the front door. Cardinal answered the door, and Morales asked if Retter was there. Cardinal told Morales that Retter was sleeping in his room. Morales pushed his way past Cardinal and walked down the hallway to Ret-ter’s room. Cardinal stayed in the living room and heard Morales yelling at Retter. Then Cardinal heard a gunshot. At that point, Morales ran out of Retter’s room and said “I didn’t mean to, I didn’t mean to” on his way to the front door.

Retter, who had been passed out on his mattress, heard Morales enter his bedroom and opened his eyes. Retter was barely coherent and did not see a weapon or hear Morales yelling at him. Retter said that Morales walked into his bedroom, approached him, and exited about five seconds later. Retter felt an impact when Morales approached him, but Retter thought Morales had slapped him across the face.

Cardinal entered Retter’s room as soon as Morales left the house, and it was apparent that Retter had been shot in the face. Retter did not know that he had been shot, and he tried to lie back down. Cardinal convinced Retter to look at his face in the bathroom mirror, and Retter agreed to stay awake for medical assistance. Retter was transported to medical facilities, where it was determined that the bullet had entered Retter’s right cheek and lodged in the left temporal bone. The bullet missed Retter’s carotid artery by a distance of approximately the thickness of a fingernail. Retter survived the ordeal but suffered permanent paralysis on the left side of his face. The bullet remains lodged in Retter’s left temporal bone.

The State charged Morales with attempted first-degree murder, and a jury found him guilty of the lesser-included offense of attempted manslaughter. The court sentenced Morales to seven years in prison followed by five years of probation. On appeal, Morales argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove that he intended to kill Retter.

This court will affirm the denial of a motion for judgment of acquittal if the verdict is supported by competent, substantial evidence. Fitzpatrick v. State, 900 So.2d 495, 507 (Fla.2005). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. A trial court should not grant a judgment of acquittal ‘unless the evidence is such that no view which the. jury may lawfully take of it favorable to the opposite party can be sustained under the law.’ ” Id. (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)).

The crime of attempted manslaughter exists when, if the victim had died, it would have been proper to convict the defendant for voluntary manslaughter. Taylor v. State, 444 So.2d 931, 934 (Fla.1983). Because it would be impossible to attempt to commit an unintentional crime, the crime of attempted manslaughter requires an intent to kill. Id. However, this intent-to-kill element is distinguishable from a premeditated intent to kill, which requires a “ ‘fully formed conscious purpose to kill’ ” formed long enough before the crime to allow for reflection on the nature of the act to be committed and its likely result. Chamberlain v. State, 881 So.2d 1087, 1105 (Fla.2004) (quoting Green v. State, 715 So.2d 940, 943 (Fla.1998)).

The supreme court has explained the distinction as follows:

“[T]here is nothing in the definition of manslaughter to exclude from its provisions all intentional homicides, or to include within the definition of murder all intentional killings, unless the intention is so deliberate as to amount to a premeditated design. The ordinary case of a sudden combat where the passions are aroused by sufficient provocation will furnish a pertinent illustration. Here there may be an intent to take life accompanied by an assault with a deadly weapon to carry out that intent. If the intent does not rise to the degree of a premeditated design, the killing will not be murder, but manslaughter.”

Taylor, 444 So.2d at 933 (quoting Williams v. State, 41 Fla. 295, 26 So. 184, 186 (1899)).

In this case, the State presented evidence that Morales entered Retter’s home late at night and shot him in the face at close range while he lay on his mattress in a stupor. This evidence establishes an intent to kill beyond a reasonable doubt. Accordingly, the verdict was supported by competent, substantial evidence, and the trial court did not err in denying Morales’ motion for judgment of acquittal.

Affirmed.

FULMER, C.J., and CANADY, J„ Concur.


text:
    STATE of Florida, Appellant, v. Pamela Lynn KNIGHT, Appellee.
    No. 2D06-1973.
    District Court of Appeal of Florida, Second District.
    April 11, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
   PER CURIAM.

An order granting a defendant’s pretrial motion to suppress identification testimony is not appealable under Florida Rule of Appellate Procedure 9.140, but the order is reviewable by common-law certiorari. See State v. Arriagada, 518 So.2d 918 (Fla.1988). See also State v. Wilson, 483 So.2d 23, 25 (Fla. 2d DCA 1985). We therefore treat the State’s appeal of the order granting the motion to suppress as a petition for writ of certiorari. The petition is denied.

WHATLEY and DAVIS, JJ„ and MASTERS, ELLEN S., Associate Judge, Concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Sherman T. HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5525.
    District Court of Appeal of Florida, Second District.
    April 13, 2007.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

Sherman Henderson challenges his conviction for possession of marijuana with intent to sell within 1000 feet of a public housing facility. Because the proximity enhancement in the version of the statute in effect at the time of Henderson’s offense was only 200 feet, we reverse Henderson’s conviction and remand with instructions to enter a judgment for possession with intent to sell.

In the information, the State cited section 893.13(l)(f), Florida Statutes, and alleged that the offense occurred on June 18, 2003. Pursuant to the 2002 version of the statute, possession of marijuana with intent to sell was enhanced from a third-degree felony to a second-degree felony when committed within 200 feet of a public housing facility. The legislature amended the statute in 2003, expanding the proximity enhancement from 200 to 1000 feet. However, the 2003 amendment did not go into effect until July 1, 2003 — after Henderson committed the offense charged here. Accordingly, the 2002 version of the statute applied to Henderson’s crime. See Nazworth v. State, 473 So.2d 214, 215 (Fla. 5th DCA 1985) (“[T]he law in effect at the time the crime was committed governs the penalty to be imposed.”).

As such, Henderson argues that his conviction should be reversed and that he should be discharged. We do agree that his conviction for the second-degree felony of possession of marijuana with intent to sell within 1000 feet of a public housing facility must be reversed because at the time Henderson committed the act, the statute did not identify such conduct as a second-degree felony. See J.J. v. State, 842 So.2d 266, 267 (Fla. 2d DCA 2003) (“Conviction of a nonexistent crime is fundamental error.”).

However, we do not agree that Henderson should be discharged. The information sufficiently alleged the lesser-included offense of possession of marijuana with intent to sell, and the evidence at trial supported such a conviction. Accordingly, we remand with instructions to enter a judgment for possession of marijuana with intent to sell. See § 924.34, Fla. Stat. (2006); see also Bledsoe v. State, 764 So.2d 927 (Fla. 2d DCA 2000) (concluding that this court has the authority to reduce a conviction to a lesser-included offense “if the charging document sufficiently alleges [the lesser offense] and the evidence supports conviction for [the lesser offense]”).

Reversed and remanded with instructions.

SALCINES and SILBERMAN, JJ., Concur.

      . Ch.2003-95, § 1, at 473-74, Laws of Fla.

      . Id., § 3, at 480.


text:
    R.R.K., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-708.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish and Kristen L. Davenport, Assistant Attorneys General, Daytona Beach, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case is on remand from the Florida Supreme Court in light of V.K.E. v. State, 934 So.2d 1276 (Fla.2006). We strike those portions of the disposition order that imposed a $201.00 “domestic violence” surcharge and a $151.00 “rape crisis” surcharge.

In all other respects, the disposition order is affirmed.

AFFIRMED; COSTS STRICKEN.

GRIFFIN, THOMPSON and EVANDER, JJ., concur.