author: PER CURIAM. VILLANTI, Judge,

text:
    Randalyn BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1697.
    District Court of Appeal of Florida, Second District.
    March 7, 2008.

      Joseph M. Davis, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph Lee, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Randalyn Bailey seeks review of her judgment and sentence for second-degree murder with a firearm, robbery with a firearm, and burglary of a dwelling with an assault or battery. This is another case in which we must reverse based on our decision in Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007), in which we held that the standard Tampa Police Department Form 310 Miranda warnings were deficient because they did not inform the defendant of the right to have counsel present during questioning. Our reversal on this basis renders Bailey’s challenge to the denial of her motion for mistrial moot.

Bailey was charged with first-degree murder, robbery with a firearm, and burglary of a dwelling with an assault or battery. Prior to trial, Bailey filed a motion to suppress statements she made to police officers. The trial court granted the motion regarding certain statements made at the time Bailey was initially detained and denied the remainder of the motion. A jury found Bailey guilty of the lesser-included offense of second-degree murder with a firearm, and guilty as charged for robbery with a firearm and burglary of a dwelling with an assault or battery.

On appeal Bailey argues that the trial court erred in denying her motion to suppress. Bailey’s motion to suppress addressed three different “statements” she made to police officers. First, Bailey argued that the statements she made to Deputies Stutter and Gause and Detective Sandoval shortly after her arrest on August 31, 2003, should be suppressed because they were obtained during the course of an illegal stop and arrest. The trial court granted Bailey’s motion to suppress the statements made to Deputies Stutter and Gause and Detective Sandoval on August 31 until Bailey revealed that there was a probation warrant out for her. The State has not appealed this ruling, and it is therefore affirmed.

Second, Bailey argued that the statements she made to Detectives Duran and Drabiniak at the police station in Arcadia on August 31, 2003, should be suppressed because the Miranda warnings read to her were deficient. The warnings stated, “You have the right to talk to a lawyer before answering any of our questions,” but did not expressly inform Bailey that she had the right to talk to a lawyer during questioning. The trial court denied Bailey’s motion to suppress these statements. While the trial court did not have the benefit of this court’s recent decision in Powell, the decision clearly requires reversal of the court’s denial of the motion to suppress statements Bailey made to Detectives Duran and Drabiniak at the police station in Arcadia on August 31, 2003. See Powell, 969 So.2d at 1067.

Third, Bailey argued that the statements she made to Detectives Shegstad, Redwine, and Drabiniak en route to the police station in Tampa on September 3, 2003, should be suppressed because she was not read any Miranda warnings prior to being questioned. The trial court also denied Bailey’s motion to suppress these statements. On appeal, the State does not dispute that Bailey was entitled to Miranda warnings on September 3 but argues that the original Miranda warnings were sufficient to apprise Bailey of her right to counsel three days later. Even accepting this dubious assertion, the initial Miranda warnings were legally insufficient under Powell. See Powell, 969 So.2d at 1067. Therefore, Powell also requires reversal of the court’s denial of the motion to suppress statements Bailey made to Detectives Shegstad, Redwine, and Dra-biniak en route to the police station in Tampa on September 3, 2003.

As we did in Powell, we certify the following question as one of great public importance pursuant to article V, section 3(b)(4), of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER “BEFORE QUESTIONING” AND (B) THE “RIGHT TO USE” THE RIGHT TO CONSULT A LAWYER “AT ANY TIME” DURING QUESTIONING?

Affirmed in part, reversed in part, and remanded.

ORTHCUTT, C.J., and STRINGER, JJ., Concur.

VILLANTI, J., Concurs specially.

VILLANTI, Judge,

Specially concurring.

I concur separately to point out that while I am required to accept Powell as binding authority in this district, I joined in the concurrence in M.A.B v. State, 957 So.2d 1219 (Fla. 2d DCA 2007) (en banc), review granted, 962 So.2d 337 (Fla. Aug. 21, 2007), which, by virtue of a tie vote, provided an opinion with no binding prece-dential value on the same Miranda issue presented in this case. As history played out, the panel in Powell was the next to receive a case involving the same issue; therefore, it became that panel’s obligation to decide this issue’s fate one way or the other in this district.

For the same reasons outlined in Judge Canady’s concurrence in M.A.B., I do not agree with the Powell majority. In addition to the reasoning of that concurrence, I would add the following personal observation. In my view, Miranda warnings were designed to be, and are only required to be, understood by ordinary people. For over forty years, ordinary people past the age of reason have consistently understood Miranda’s right-to-counsel warning as encompassing the entire duration of a police interrogation. I submit that if only attorneys who are highly educated and accomplished wordsmiths can ferret out an inadequacy in the warning’s language, then the warning as given was both adequate and reasonably understandable by the ordinary person who is far less educated or capable of parsing legal verbiage. I am still convinced that the M.A.B. concurring opinion is correct.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . I note that the supreme court has now accepted review of this court’s decision in Powell. See State v. Powell, 2008 WL 332503 (Fla. Jan. 16, 2008).


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Adam Free SOUSA, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2664.
    District Court of Appeal of Florida, Second District.
    March 7, 2008.
    Adam Free Sousa, pro se.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Adam Free Sousa appeals the trial court’s order denying his motion to correct illegal sentences pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the order and remand with instructions to reduce Mr. Sousa’s two consecutive sentences of fifty years’ imprisonment to two consecutive terms of no more than thirty years’ imprisonment.

Mr. Sousa shot and seriously wounded two men at a dog track in Bonita Springs, Florida, on December 14, 1999. As a result, he was charged with two counts of attempted second-degree murder and aggravated assault with a firearm. He was found guilty as charged in 2001. The trial court sentenced Mr. Sousa to two consecutive sentences of fifty years’ imprisonment, each containing a twenty-five-year mandatory minimum term, for the two counts of attempted second-degree murder, and an additional consecutive five years’ imprisonment with a three-year mandatory minimum term for the aggravated assault.

When Mr. Sousa appealed to this court, he raised six issues on appeal. This court’s opinion affirmed on all issues except for the argument claiming that the fifty-year terms under the 10/20/life statute needed to be concurrent rather than consecutive. Sousa v. State, 868 So.2d 538, 540 (Fla. 2d DCA 2003). On review by the supreme court, this court’s opinion was reversed as to this sentencing issue. State v. Sousa, 903 So.2d 923, 927 (Fla. 2005). Accordingly, on remand, Mr. Sousa’s total sentence of 105 years’ imprisonment with a fifty-three-year mandatory minimum term was reinstated.

Mr. Sousa then filed a motion to correct an illegal sentence pursuant to rule 3.800(a), arguing that his fifty-year terms of imprisonment for attempted second-degree murder were illegal. As explained later in this opinion, the trial court denied this motion. Despite this denial, Mr. Sousa has solid support for his argument. Second-degree murder is a first-degree felony, punishable by life imprisonment. § 782.04(2), Fla. Stat. (1999). Attempted second-degree murder is thus a second-degree felony, punishable by no more than fifteen years’ imprisonment. §§ 777.04(4)(c), 775.082(3)(c), Fla. Stat. (1999). Because Mr. Sousa was charged with committing these crimes while using a firearm, the offense was reclassified as a first-degree felony. § 775.087(l)(b). The maximum term of imprisonment for a reclassified first-degree felony, without some special sentencing enhancement, is thirty years’ imprisonment. § 775.082(3)(b).

Because Mr. Sousa clearly discharged his firearm during the commission of both of these crimes, causing great bodily harm to his victims, he was subject to section 7T5.087(2) (a) (3) of the 10/20/life statute, which required that he be sentenced “to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” It could be argued that the language of this statute overrides the language in section 775.082(3)(b) that provides for a thirty-year sentence. The case law, however, interprets these statutes in favor of the defendant, so that the maximum term of years is thirty. See Yasin v. State, 896 So.2d 875 (Fla. 5th DCA 2005); Badia v. State, 770 So.2d 300 (Fla. 3d DCA 2000); see also Sanders v. State, 912 So.2d 1286, 1292 (Fla. 2d DCA 2005) (describing maximum penalty in appendix to opinion).

In his direct appeal, Mr. Sousa argued that his fifty-year terms of imprisonment were illegal and cited the Third District’s decision in Badia. In response, the State argued that the issue was unpreserved and that Mr. Sousa should have filed a motion pursuant to rule 3.800(b) to correct this error. Although this court’s prior opinion in Sousa, 868 So.2d 538, contains no discussion of this issue, lack of preservation was the only ground upon which we could have affirmed the fifty-year sentences. It is clear that this court never ruled on the merits of Mr. Sousa’s unpreserved sentencing error and that we did not intend to foreclose postconviction review of these sentences if the error rendered them illegal.

When the trial court was considering Mr. Sousa’s motion to correct illegal sentence, it entered an order that granted his motion. The State then filed a motion to reconsider the order, arguing that Mr. Sousa could not raise this issue by motion under rule 3.800(a) because he had raised and lost the issue on direct appeal in this court. The State filed a copy of Mr. Sousa’s brief on direct appeal to demonstrate that he had raised the issue, but it neglected to file its own brief arguing that the issue was not preserved for review on direct appeal. Thus, the trial court denied Mr. Sousa’s motion because it understandably believed that this court had already reviewed and rejected his argument.

We conclude that the merits of this issue were never addressed by this court or the supreme court. Under the controlling law, Mr. Sousa’s fifty-year sentences are illegal. Accordingly, we reverse the order on appeal and remand with instructions to the trial court to resentence Mr. Sousa to a term of years for each of these offenses that does not exceed the statutory maximum of thirty years’ imprisonment. Nothing in this opinion should be interpreted to affect the mandatory minimum terms, totaling fifty-three years’ imprisonment, or the sentence for aggravated assault.

Reversed and remanded.

SILBERMAN and LaROSE, JJ., Concur.

      . See § 775.087(2)(a)(3), Fla. Stat. (1999) (requiring sentence of no less than twenty-five years and not more than life if defendant discharges a firearm and causes great bodily harm during commission of an enumerated felony).

      . Although the information in this case could have alleged the great bodily harm basis for enhanced sentencing in greater detail, there is no question that his offenses qualified for treatment under these statutory provisions and that any question about the application of the statute to this case cannot be raised at this late stage in these proceedings under a theory that his sentences are illegal.


author: PER CURIAM.

text:
    Lonnie Lee STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-389.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2008.
    Lonnie L. Stewart, Pelman, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Oxendine v. State, 852 So.2d 286 (Fla. 5th DCA 2003).

AFFIRMED.

GRIFFIN, TORPY and COHEN, JJ., concur.


text:
    Juan Francisco DESANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3683.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2008.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Smith v. State, 886 So.2d 336 (Fla. 5th DCA 2004).

PLEUS, EVANDER and COHEN, JJ., concur.


text:
    Daniel Clifford MORIARTY, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2255.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2008.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Yanes v. State, 877 So.2d 25 (Fla. 5th DCA 2004).

PALMER, C.J., PLEUS and EVANDER, JJ., concur.


author: FULMER, Judge.

text:
    Martin Joseph COMER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2035.
    District Court of Appeal of Florida, Second District.
    March 12, 2008.
    James Marion Moorman, Public Defender, and Richard J. D’Amico, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

We affirm Martin Comer’s conviction. We do not reach the sentencing issue raised by Comer on appeal because it was not preserved in the trial court, either by objection or motion pursuant to Florida Rule of Criminal Procedure 8.800(b). See Brannon v. State, 850 So.2d 452 (Fla.2003).

NORTHCUTT, C.J., and ALTENBERND, J., Concur.


text:
    Justin D. SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-321.
    District Court of Appeal of Florida, Second District.
    March 12, 2008.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue and Dawn Elizabeth Adams, Assistant Attorneys General, Tampa, for Appellee.
   ALTENBERND, Judge.

Justin D. Sutton appeals his judgments and sentences for possession of contraband in a county detention facility and possession of drug paraphernalia. The charges arose out of an incident during which Mr. Sutton and several other prisoners at the Highlands County Jail were discovered smoking marijuana. We affirm.

Mr. Sutton raises two issues. First, he argues that the trial court erred in denying him the opportunity to present the first closing argument and a final rebuttal after he elected to present no evidence. This court recently held that trial courts may now allow the State first and final closing argument even when the defendant presents no evidence. See Sullivan v. State, 972 So.2d 918 (Fla. 2d DCA 2007) (citing Grice v. State, 967 So.2d 957 (Fla. 1st DCA 2007)). Accordingly, we reject Mr. Sutton’s argument on this issue.

Second, he argues that the trial court erred in denying his request to peremptorily challenge a prospective juror who was a white female. Prior to this request, he had used four of his five peremptory challenges to dismiss white female jurors. When the State objected to this use of a peremptory challenge, the trial court asked Mr. Sutton’s attorney to come forward with a race-neutral explanation for the strike as required by step two of the procedure set forth in Melbourne v. State, 679 So.2d 759, 764 (Fla.1996) (clarifying three-step process courts should follow for objections to racially motivated peremptory challenges). Mr. Sutton’s attorney maintained that he was attempting to strike this juror because she had lived in Highlands County for five years while other jurors had lived in the county for longer periods. Although this explanation is facially race-neutral, the trial court denied the challenge in step three of the Melbourne procedure because the trial judge concluded that the explanation was not “neutral.”

Mr. Sutton argues that the trial court erred by intermingling step two and step three of the Melbourne procedure. In step three, the court considers the circumstances surrounding the strike, focusing “not on the reasonableness of the explanation but rather its genuineness.” Id. at 764. Mr. Sutton maintains that the trial court used the race-neutral test instead of the genuineness test during step three. We disagree.

When the trial court’s ruling is read in its entirety, it is apparent that the trial judge understood that he was making the ruling required for step three and that he was actually ruling that the facially race-neutral explanation was not genuine. See Simmons v. State, 940 So.2d 580, 582 (Fla. 1st DCA 2006) (“There are no specific words which the court must state to satisfy step three of the Melbourne analysis.”). Moreover, Mr. Sutton’s attorney did not object when the trial court used the word “neutral” rather than “genuine” or suggest to the trial court that it may have used the wrong standard. By this observation, we are not suggesting that Mr. Sutton’s attorney was deficient for failure to make such an objection but that it appears the attorney also understood, in context, that the trial judge was making a proper resolution of step three of the Melbourne procedure.

Because we conclude that the trial court applied the correct law during step three of the procedure, our standard of review is quite limited. A trial court’s ruling on genuineness is primarily an “assessment of credibility” that an appellate court must affirm unless the record demonstrates that the ruling is “clearly erroneous.” Melbourne, 679 So.2d at 764-65. We cannot hold that the trial court so erred in rejecting this explanation. We therefore affirm the judgments and sentences.

Affirmed.

DAVIS and CANADY, JJ., Concur.


text:
    The STATE of Florida, Appellant, v. Laffayette BERRY, Appellee.
    No. 3D07-904.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellee.
    Before COPE, GREEN, and WELLS, JJ.
   PER CURIAM.

The State appeals a downward departure sentence. We reverse for further proceedings.

The State offered a downward departure sentence to defendant-appellant Laffayette Berry. When the case came before the trial court, the defendant requested, and the trial court indicated agreement in concept, on a shorter sentence than the State had offered. Had the State’s downward departure offer remained open, then the trial court could have accepted the defendant’s plea and imposed an even greater downward departure. State v. Aguilar, 775 So.2d 994, 996 (Fla. 3d DCA 2000).

The State timely withdrew its offer, however, and objected to the imposition of sentence below the guidelines minimum. Over objection, the trial court imposed a downward departure sentence without stating written reasons. The State has appealed.

In the absence of a valid reason for downward departure, we are obliged to reverse and remand for resentencing consistent with the guidelines, or to permit the defendant to withdraw his plea. State v. Green, 932 So.2d 365 (Fla. 3d DCA 2006). The defendant suggests that there is a valid reason for downward departure. That issue can be raised in the trial court on remand. As to the suggestion that a victim’s consent can, in and of itself, constitute a valid downward departure reason, the parties’ attention is invited to State v. Kasten, 775 So.2d 992 (Fla. 3d DCA 2000).

Reversed and remanded for further proceedings consistent herewith.


author: ROTHENBERG, Judge.

text:
    Paul DE VICO, Appellant, v. Gerald S. BERKELL, et al., Appellees.
    No. 3D07-2167.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.

    Ron Bradley Kurtz, North Miami, for appellant.
    Smoler Lerman Bente & Whitebook, Miami and Patrick Patrissi, for appellees.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

Frank Gangemi (“Gangemi”) is a disbarred attorney who was incarcerated for stealing in excess of $6 million from his clients. Paul De Vico, one of Gangemi’s clients, filed a lawsuit against Gangemi’s lawfirm, Berkell & Berkell-Rafery, P.A., and Gerald S. Berkell (collectively “the defendants”) on August 8, 2003. On March 21, 2007, after the defendants learned that Mr. De Vico had died, they filed a Suggestion of Death, thereby triggering Florida Rule of Civil Procedure 1.260(a)®, which provides that upon a suggestion of death, the proper party must be substituted within ninety days. At the expiration of the ninety-day period, because no substitution was made and no extension was requested, the defendants filed a motion to dismiss pursuant to Florida Rule of Civil Procedure 1.260(a), and noticed the motion for a hearing on July 25, 2007.

On July 24, 2007, Mr. De Vico’s daughter, Lorraine De Vico, the personal representative of her father’s estate, filed, through counsel, a Motion to Substitute Party. On July 25, Ms. De Vico filed a motion for enlargement of time and an affidavit sworn to by her counsel. After considering the evidence presented and the arguments of counsel, the trial court dismissed the complaint, finding no excusable neglect.

Because rule 1.090(b) provides for an enlargement of time to procure substitution of the proper party, and rule 1.090(b)(2) allows an extension of time after expiration of the prescribed period upon a showing of excusable neglect, we must determine whether the trial court abused its discretion by finding that excusable neglect was not shown. Boudot v. Boudot, 925 So.2d 409, 415 n. 2 (Fla. 5th DCA 2006) (citing Smith v. Smith, 902 So.2d 859, 861 (Fla. 1st DCA 2005)).

We begin our analysis with recognition of this state’s long-standing tradition in favor of the disposition of an action on its merits. See N. Shore Hosp., Inc. v. Barber, 143 So.2d 849, 852-53 (Fla.1962); Vera v. Adeland, 881 So.2d 707, 710 (Fla. 3d DCA 2004); Edwards v. Najjar, 748 So.2d 1101, 1103 (Fla. 3d DCA 2000). Additionally, all doubts are to be resolved in favor of allowing trial on the merits. See Edwards, 748 So.2d at 1103; Apolaro v. Falcon, 566 So.2d 815, 816 (Fla. 3d DCA 1990); Tucker v. Firestone Tire & Rubber Co., 552 So.2d 1178, 1179 (Fla. 2d DCA 1989).

Ms. De Vico’s counsel, Ron Bradley Kurtz (“Kurtz”), filed an affidavit explaining that Mr. De Vico handled his own affairs and that upon his death, his daughter, Lorraine, was left with the task of determining her father’s assets and liabilities and attending to his affairs. Although she had been appointed as the personal representative of her father’s estate at the suggestion of her probate and tax attorney for tax reasons, being a lay person and unfamiliar with the process, she did not realize that a probate estate had been opened, and she did not inform Kurtz of the existence of the probate action. Kurtz averred that as soon as he learned that a probate estate had been initiated and that Ms. De Vico had been named as the personal representative of her father’s estate, he immediately filed the motion to substitute her as a party.

In Somero v. Hendry General Hospital, 467 So.2d 1103, 1106 (Fla. 4th DCA 1985), the Fourth District held that:

[WJhere inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits. It is a gross abuse of discretion for the trial court to rule otherwise.

(Emphasis added).

Likewise, in Edwards, this Court found that the trial court abused its discretion by denying the defendant’s motion to set aside a default. 748 So.2d at 1102-03. This Court found that the appropriate showing of excusable neglect was made where, through clerical error, “the complaint became buried in a stack of unrelated papers” and counsel demonstrated due diligence by taking action within one week after discovery of the matter. Id. at 1103. In the instant case, Ms. De Vico was inexperienced and confused and did not understand that a probate estate had been opened. Within three or four days of counsel’s discovery of the matter, and before the motion to dismiss was heard, Kurtz filed a motion for substitution. A corporate secretary’s failure to transmit a complaint to the company’s headquarters in Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So.2d 83, 83-84 (Fla. 3d DCA 1987); counsel’s confusion as to whether an estate had been opened in Vera, 881 So.2d at 710; or a secretary’s misplacement of a complaint in Edwards, 748 So.2d at 1103, are not more reasonable than Ms. De Vico’s confusion in the instant case.

We, therefore, reverse the trial court s orders denying the motion to substitute parties and dismissing the complaint.

Reversed.


author: SHAHOOD, C.J.

text:
    Ronald R. COOTS, Appellant, v. Marilyn A. COOTS, Appellee.
    No. 4D07-1046.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., and Robert W. Schlorff, II, of Law Offices of Robert W. Schlorff, II, Fort Lauderdale, for appellant.
    Tracy Belinda Newmark of The New-mark Law Firm, P.A., Hollywood, for ap-pellee.
   SHAHOOD, C.J.

Ronald R. Coots appeals from a final judgment of dissolution of his marriage to Marilyn A. Coots. We hold that the trial court did not abuse its discretion in the equitable distribution of assets and the award of lump sum alimony to former wife under the circumstances of this case. We affirm that portion of the final judgment. See Thompson v. Thompson, 546 So.2d 99, 100 (Fla. 4th DCA 1989).

However, given the relative financial situations of the parties, we hold that the trial court abused its discretion in ordering former husband to pay one-half of former wife’s attorney’s fees. See Ondrejack v. Ondrejack, 839 So.2d 867, 872 (Fla. 4th DCA 2003); Cobb v. Cobb, 538 So.2d 1370, 1371 (Fla. 3d DCA 1989).

We remand for the trial court to enter an amended final judgment consistent with this opinion.

Affirmed in part, Reversed in part, and Remanded.

POLEN and MAY, JJ., concur.


text:
    Jeffery MAYO, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1063.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Rehearing Denied April 4, 2008.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Bryant v. State, 810 So.2d 532 (Fla. 1st DCA 2002).

SHAHOOD, C.J., POLEN and MAY, JJ., concur.


text:
    APRIL MIST ASSOCIATION, INC. A Condominium Association, a Florida non-profit corporation, Appellant, v. The FOREVER APRIL ASSOCIATION, INC., a Florida non-profit corporation, Appellee.
    No. 4D07-1742.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Eric M. Glazer of Glazer & Associates, P.A., Hallandale, for appellant.
    No brief filed for appellee.
   PER CURIAM.

The trial court entered an order granting appellee’s motion for temporary injune-tive relief without specifying reasons for its entry, as required by Florida Rule of Civil Procedure 1.610(c). We reverse and remand to the trial court to correct the order’s technical deficiencies. We find no abuse of discretion in the amount of the bond set by the trial court.

Reversed and Remanded.

STONE, STEVENSON and TAYLOR, JJ., concur.


author: DAMOORGIAN, J.

text:
    Allon RICHARDSON and Evelin Richardson, Appellants, v. PLANTATION GENERAL HOSPITAL, Appellee.
    No. 4D07-2032.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Warren B. Kwavnick of Cooney, Matt-son, Lance, Blackburn, Richards & O’Con-nor, P.A., Fort Lauderdale, for appellants.
    Donna M. Krusbe of Billing, Cochran, Heath, Lyles, Mauro, Anderson & Ramsey, P.A., West Palm Beach, for appellee.
   DAMOORGIAN, J.

Allon and Evelin Richardson appeal from summary judgment granted in favor of Plantation General Hospital. In its motion, the hospital argued that the language of a general release between appellants and a joint tortfeasor also released the hospital. The record before the trial court unequivocally established by unrebutted evidence that the release and addendum do not and were never intended to release the hospital. Smith v. Shelton, 970 So.2d 450, 451 (Fla. 4th DCA 2007) (construction of a contract is an issue of law subject to de novo review). Therefore, trial court improperly granted Plantation General’s motion for summary judgment. Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). We therefore reverse.

Reversed.

KLEIN and HAZOURI, JJ., concur.


text:
    Martha Spencer Lee VALENTINE, Appellant, v. John A. VALENTINE, Appellee.
    No. 4D07-2627.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellant.
    John A. Valentine, Ocean Ridge, pro se.
   PER CURIAM.

We affirm the circuit court’s June 4, 2007 order, but remand for the trial court to determine the Former Husband’s ar-rearage amounts.

WARNER, FARMER and GROSS, JJ., concur.


author: POLEN, J.

text:
    Tina DiMARCO and Jimmy DiMarco, her husband, Appellants, v. COLEE COURT, INC., Appellee.
    No. 4D07-2867.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.

      Robert Garven, Coral Springs, and Charles Maneuso, Fort Lauderdale, for appellants.
    Merryl S. Haber of Fertig and Graml-ing, Fort Lauderdale, for appellee.
   POLEN, J.

Appellants, Tina and Jimmy Di-Marco, appeal the trial court’s grant of final summary judgment in favor of Appel-lee, Colee Court, Inc. Tina was a former tenant at Colee who brought a negligence action after she tripped and fell on a paver on the property. Tina alleged the condition of the paver had deteriorated, was “irregularly extended above the adjacent ground level,” and that Colee was negligent in allowing a dangerous condition to exist without warning the residents. Co-lee moved for summary judgment, asserting as a matter of law it had no duty to warn Tina of an open and obvious condition that she was aware of, having lived at the apartment complex for approximately two months prior to the incident. The trial court entered an order granting Colee’s motion for final summary judgment, finding the condition was open and obvious, relieving Colee of a duty to warn. We reverse the grant of summary judgment for the trial court’s failure to consider whether there were material issues of fact as to Colee’s duty to maintain the property.

The standard of review when reviewing the entry of summary judgment is de novo. Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it.

Everett Painting Co. v. Padula & Wadsworth Constr., 856 So.2d 1059, 1061 (Fla. 4th DCA 2003).

A property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered by the invitee through the exercise of reasonable care.

Wolford v. Ostenbridge, 861 So.2d 455, 456 (Fla. 2d DCA 2003).

In this case, the trial court granted Colee’s motion for summary judgment on the basis that the condition of the paver was open and obvious, thereby relieving Colee of the duty to warn. However, the trial court failed to complete its analysis by determining whether Colee had used reasonable care in maintaining the property. A finding that the condition was open and obvious does not discharge Colee’s duty to maintain the property in a reasonably safe condition. See Kersul v. Boca Raton Commty. Hosp., Inc., 711 So.2d 234 (Fla. 4th DCA 1998).

We reverse the grant of summary judgment on the basis of the trial court’s failure to find that Colee used reasonable care in maintaining the property.

SHAHOOD, C.J., and MAY, J., concur.


text:
    Elizabeth Ann THOMPSON, Milan H. Valencic, and Ralph F. Valencic, Jr., Appellants, v. Margarita M. CLEARY, individually, as Personal Representative of the Ralph F. Valencic Estate, and as Trustee of the Ralph F. Valencic Trust, Appellee.
    No. 4D07-3078.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Rehearing Denied April 4, 2008.
    Elizabeth Ann Thompson, Lake Park, Milan H. Valencic, Colchester, Connecticut, and Ralph F. Valencic, Jr., Tallahassee, pro se.
    James G. Pressly, Jr., of Pressly & Pressly, P.A., West Palm Beach, for appel-lee.
   PER CURIAM.

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

SHAHOOD, C.J., POLEN and MAY, JJ., concur.


author: MAY, J.

text:
    J.R., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-3894.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.

      Kenneth B. Williams, Coral Springs, for appellant.
    Bill McCollum, Attorney General, Tallahassee and Jeffrey P. Bassett, Assistant Attorney General, for appellee.
   MAY, J.

The mother appeals a post-disposition order that modified her visitation rights to her child. She raises two issues: (1) the court erred in failing to include specific findings of fact to support the modification; and (2) the court erred in modifying her visitation rights. We reverse.

The court adjudicated the child dependent after the mother consented to the second amended petition for dependency filed by the Department of Children and Families [DCF]. The court ordered visitation for the mother to be “therapeutically supervised by Kids in Distress or other approved therapeutic Supervision Provider” and approved a reunification case plan. The court subsequently entered a disposition order, including out-of-home placement in foster care with weekly, therapeutically supervised visitation. The mother was ordered to complete various tasks, including domestic violence victim and parenting classes.

Less than two weeks later, DCF filed an emergency motion to prohibit contact with the mother. The motion described “several incidents involving the mother and various staff at the Childnet offices and at the Kids in Distress campus before, during, and after, the mother’s supervised, therapeutic visits with the child.” After taking testimony from a child advocate and licensed psychologist, the court ordered that the mother’s “visitations with the child shall be suspended, until the Court can be assured that the mother’s mental health is stabilized and any further visitation will not occur unless and until it is therapeutically indicated.” The court did not, however, make specific findings of fact supporting its decision.

The DCF concedes the order fails to contain specific findings of fact and requests that the case be remanded to the trial court for this purpose. While the cases cited by the mother do not involve post-disposition visitation orders, Rule 8.260(a) of the Florida Rules of Juvenile Procedure requires all orders of the court to “contain specific findings of fact and conclusions of law.” For this reason, we must reverse and remand the case to the trial court. However, having reviewed the record presented, there is competent, substantial evidence to support the trial court’s ultimate conclusion to suspend the mother’s visitation in the best interests of the child. K.F. v. Dep’t of Children & Families, 963 So.2d 947, 948-49 (Fla. 4th DCA 2007).

Affirmed in part, Reversed in part, and Remanded.

SHAHOOD, C.J. and POLEN, JJ., concur.


text:
    CITY OF BOYNTON BEACH, Petitioner, v. RALPH AND ROSIE, INC., Respondent.
    No. 4D07-3800.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Michael D. Chullo, Jr., James A. Cherof and David N. Tolces of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for petitioner.
    Robin Bresky, Boca Raton, for respondent.
   PER CURIAM.

We treat the filed petition as a petition for writ of prohibition and quash the circuit court’s amended stay order as it exceeds the circuit court’s jurisdiction.

This cause arises from a final order of the Boynton Beach Code Compliance Board relating to a code violation by Ralph and Rosie, Inc. (R & R), a restaurant business, in the construction of its Chickee Hut facility. It was found to be in violation of the Boynton Beach code. A March 2007 order of the Boynton Beach Code Compliance Board had certified a fine for failure to comply with an earlier board order. The order provided for a fine accruing at $500 per day until R & R came into compliance.

R & R filed an appeal from that order and an emergency motion for stay pending appeal with the Palm Beach circuit court. R & R claimed that the city now sought to revoke its occupational license. In a separate proceeding, the Boynton Beach zoning and business tax manager had announced the intent to revoke R & R’s local business tax receipt/occupational license in May 2007, based on the code compliance board order. R & R appealed that decision to the Building Board of Adjustment and Appeals.

The city correctly points out that the matter before the circuit court in this case relates only to the order certifying a fine for the Chickee Hut and does not relate to the occupational license case proceeding separately.

Here, the circuit court’s original stay order provided, in part:

Appellee is restrained and enjoined from foreclosing on any liens which it may impose on Appellant’s property, revoking Appellant’s business tax/occupational license, or taking any other action which adversely affects the operation and carrying on of Appellant’s business or use of its property during the pen-dency of the appeal.

The stay order in this case has the effect of staying the occupational license revocation order, even though that order was not challenged in this case. The city moved for clarification of this order, arguing that the circuit court is limited in its stay authority to the order and proceedings under review and erred in reaching beyond this case to the penalties and order in the separate case.

In an amended stay order, the circuit court stated:

[The city] is restrained and enjoined from foreclosing on any liens which it may impose on Appellant’s property, revoking Appellant’s business tax/occupational license, or taking any other action relating to issues involved in this case which adversely affects the operation and carrying on of Appellant’s business or use of its property during the pen-dency of the appeal, [sic]

The order, even as clarified, effectively enjoins the city from enforcing the separate quasi-judicial occupational license revocation order in the separately proceeding appeal.

We conclude that the circuit court lacks authority to consider and stay the quasi-judicial order as to the occupational license, entered in a separate venue and not challenged in this case.

Prohibition lies to prevent a lower tribunal from proceeding in excess of its subject matter jurisdiction. See English v. McCrary, 348 So.2d 293 (Fla.1977); De Souza v. Ortiz, 901 So.2d 269 (Fla. 4th DCA 2005).

We note that the issue is not whether the circuit court has authority to impose a stay. See Fla. R. App. P. 9.310(a). Rather, the jurisdiction departure arises out of the extent of the stay order, as indicated. Thus, the circuit court exceeded its jurisdictional authority.

Although prohibition does not ordinarily lie from orders already entered, as it is prospective in nature, Markin v. Markin, 877 So.2d 785 (Fla. 4th DCA 2004), prohibition will lie to prevent future action by the trial court, and we view the city’s challenge as directed to future enforcement of this stay order.

We, therefore, quash the stay order and remand for further proceedings.

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


text:
    Warren STANG, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4019.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Warren Stang, Bowling Green, pro se.
    No appearance required for appellee.
   PER CURIAM.

Warren Stang seeks appellate review of an order that denied his rule 3.850 motion as untimely. We reverse and remand in part. Within his fifth point, Stang takes issue with the “time served” provisions of his March 2005 sentence imposed following a plea to violations of probation. Stang’s claim is timely and should be considered on the merits to the extent his challenge is that the “jail time served” award is incorrect or contrary to the 2005 violation of probation plea. Any challenge to the Department of Corrections’ interpretation of the sentencing documents or the award of “credit for time previously served in prison” shall be presented through an administrative grievance. See Hardenbrook v. State, 953 So.2d 717 (Fla. 1st DCA 2007).

STONE, KLEIN and HAZOURI, JJ., concur.


text:
    Leon KNOWLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4144.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Leon Knowles, Century, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Leon Knowles appeals from the denial of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He asserted that he was entitled to prison credit for time served following a violation of probation. Scott v. State, 872 So.2d 1011 (Fla. 5th DCA 2004). The trial court failed to attach portions of the record which clearly refute Knowles’s allegations. Florence v. State, 963 So.2d 927 (Fla. 4th DCA 2007). We remand for the attachment of portions of the record conclusively refuting appellant’s claims or for any other appropriate relief.

SHAHOOD, C.J., WARNER and GROSS, JJ., concur.


text:
    Amalia LARROQUE, Appellant, v. Charles E. ROLLE and Excel Rent-A-Car, Inc., Appellees.
    No. 3D06-2435.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Wasson & Associates and Roy D. Was-son, Miami; and Bernard H. Butts, Jr., Hialeah, for appellant.
    Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, and Warren B. Kwavnick, and John H. Richards, for ap-pellees.
    Before GERSTEN, C.J., and WELLS and LAGOA, JJ.
   PER CURIAM.

Affirmed. Kumarsingh v. PV Holding Corp., 33 Fla. L. Weekly D376, — So.2d -, 2008 WL 238955 (Fla. 3d DCA 2008); Bechina v. Enter. Leasing Co., 972 So.2d 925 (Fla. 3d DCA 2007).


text:
    Lazaro NAVARRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-154.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.

      Mercado & Rengel and Alexandra I. Rengel, for appellant.
    Bill McCollum, Attorney General, and Jerome Smiley, Jr., Assistant Attorney General, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Lazaro Navarro appeals an order revoking his probation and sentencing him to life imprisonment. We affirm the revocation of probation.

The appellant argues, and we agree, that there is some ambiguity in the sentencing order, and the sentencing order should be clarified. In the sentencing proceeding the trial court indicated a willingness to revisit the sentence if defendant-appellant Navarro and the State reached an agreement regarding the defendant’s pending substantive case. This suggests that the trial court anticipated having an opportunity to revisit the sentence subsequently. However, after this appeal was pending, the State nolle prossed the defendant’s substantive case. As it appears the trial court anticipated revisiting this sentence subsequent to its imposition, our affir-mance is without prejudice to the defendant to file an appropriate motion for reduction or modification of sentence under Florida Rule of Criminal Procedure 3.800(c). See generally Abreu v. State, 660 So.2d 703 (Fla.1995).

Affirmed.


text:
    Leroy LYNN, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-353.
    District Court of Appeal of Florida, First District.
    March 13, 2008.

      Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Leroy Lynn, appeals from the final judgment and sentence of the trial court. Appellant alleges, and the State concedes, that there was a scoring error in his sentencing guidelines score sheet. The parties acknowledge in their statements of fact that the score sheet error did not result in a sentence that could not have been imposed based on a correctly-calculated score sheet. We agree, and accordingly, affirm the trial court’s judgment and sentence but remand for the trial court to enter a written order in conformity with its oral pronouncement from the bench.

Appellant was charged with two counts of forgery, two counts of uttering false statements, and one count of grand theft. Appellant entered a guilty plea to forgery and uttering false statements with the agreement that the grand theft charge would be nolle prossed. Appellant’s judgment and sentence reflects the exclusion of the grand theft charge. However, Appellant’s criminal score sheet included points for the grand theft charge. Following Appellant’s Florida Rule of Criminal Procedure 3.800 motion to correct his sentence, the State conceded, and the trial court acknowledged, that the score sheet was miscalculated. On July 10, 2007, the trial court orally granted Appellant’s motion to the extent of ordering his score sheet to be corrected but did not reduce the sentence imposed. The trial court failed to enter a written order within sixty days.

Florida Rule of Criminal Procedure 3.800(b)(1)(B) provides, in pertinent part, ‘Within 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 60 days, the motion shall be considered denied.” Because the trial court failed to enter a written order within sixty days of Appellant’s filing of his motion to correct his sentence, the motion is deemed denied. However, the record facially supports Appellant’s argument that his score sheet was incorrectly calculated, but the score sheet error did not result in a sentence that could not have been imposed based on a correctly-calculated score sheet. Therefore, the trial court’s judgment and sentence is AFFIRMED, but this case is REMANDED to the trial court with instructions to enter a written order in conformity with its oral pronouncement from the bench on Appellant’s motion to correct sentence. Appellant need not be present for the entry of the written order.

PADOVANO, LEWIS, and THOMAS, JJ., concur.


author: ROBERTS, J.

text:
    Enoch Eugene DINKENS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2893.
    District Court of Appeal of Florida, First District.
    March 13, 2008.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, J.

In this direct criminal appeal, the defendant, Enoch Dinkens, seeks review of his conviction for sexual battery upon a mentally defective person and his sentence as a habitual felony offender. The defendant argues that the trial court erred in allowing the State’s psychologist to opine that the victim was not capable of appraising the nature of her conduct or of giving knowing, voluntary, and intelligent consent to intercourse. The defendant also argues that section 775.084, Florida Statutes (2006), the habitual felony offender statute, violates his right to a trial by jury. We disagree and affirm.

Admission of the Psychologist’s Opinions as to Whether the Victim was “Mentally Defective” and Capable of Consent

Section 794.011(4)(e), Florida Statutes (2006), provides that a person who commits sexual battery upon a person of 12 years of age or older without that person’s “consent” commits a first-degree felony when the victim is “mentally defective” and the offender has reason to believe this or has actual knowledge of this fact. Section 794.011(l)(a), Florida Statutes (2006), provides that “ ‘[cjonsenf means intelligent, knowing, and voluntary consent and does not include coerced submission. ‘Consent’ shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.” Section 794.011(l)(b), Florida Statutes (2006), provides that “ ‘[mjentally defective’ means a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.”

The defendant asserts that the psychologist’s opinions were inadmissible because they applied a legal standard to a set of facts. In support of his argument, the defendant cites to Gurganus v. State, 451 So.2d 817 (Fla.1984), and Town of Palm Beach v. Palm Beach County, 460 So.2d 879 (Fla.1984). In Gurganus, a criminal case, the court affirmed the trial court’s exclusion of two psychologists’ opinions as to whether the defendant’s actions were closer to a “depraved mind” than to a premeditated plan. 451 So.2d at 821. The court found that, by asking such a question, defense counsel was essentially attempting to elicit the psychologists’ opinions as to whether the defendant committed second-degree or first-degree murder. Id. at 821-22. The court also found that such a conclusion was a legal one and, as such, was an issue to be determined by the jury. Id.

In Town of Palm Beach, a local government taxation case, the court held that, although it is proper to allow an expert to opine as to whether certain benefits were received by a municipality and as to the importance of potential or unquantified benefits, it is improper to allow an expert to opine as to whether a particular benefit is “real and substantial.” 460 So.2d at 882. The court used Gifford v. Galaxie Homes of Tampa, Inc., 223 So.2d 108 (Fla. 2d DCA 1969), as an illustration of this principle. In Gifford, an action for negligent construction, the court held that it was proper to allow an expert to opine as to whether the premises were constructed and maintained according to reasonably safe construction and engineering standards. Id. at 111. The Town of Palm Beach court noted, however, that it would have been improper to allow the expert in Gifford to opine as to whether the premises were “negligently constructed.” 460 So.2d at 882. The court acknowledged that it was “to some degree only a matter of semantics,” but found that such an opinion would be a conclusion the jury should determine on its own. Id.

In contrast to the expert opinions discussed in Gurganus and Town of Palm Beach, in the instant case, the psychologist’s opinions were not legal conclusions. The psychologist did not opine on the defendant’s guilt or innocence. Rather, the psychologist opined only as to whether the victim was “mentally defective” and capable of consent to intercourse. Although the opinions did go to ultimate issues in the case, Florida law expressly provides that an expert witness may render such opinion. Section 90.703, Florida Statutes (2006), provides that “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.” Thus, the jury had the power to accept or reject the opinions and was not bound by such.

Notably, in Mathis, we reversed a defendant’s conviction for sexual battery on a mentally defective person because the expert was not asked whether the victim was capable of appraising the nature of her conduct. 682 So.2d at 180 (“Of critical importance is the fact that Ms. Bryant was not asked whether, on the date of the alleged sexual battery, the alleged victim was suffering from ‘a mental disease or defect which rendered her temporarily or permanently incapable of appraising the nature of her conduct.’ ”). Additionally, in Schimele v. State, the Fourth District affirmed a defendant’s conviction for sexual battery on a mentally defective person, holding that the expert’s testimony, that the victim was incapable of understanding the nature of his conduct and unable to give a knowing, voluntary, intelligent consent to sexual relations with the defendant, constituted competent, substantial evidence from which the trial court could find that the victim was mentally defective and thus that he did not consent. 784 So.2d 591, 593-94 (Fla. 4th DCA 2001).

The Constitutionality of Section 775.084, Florida Statutes (2006), the Habitual Felony Offender Statute

The defendant asserts that, based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the judicial fact-finding required by section 775.084, Florida Statutes (2006), the habitual felony offender statute, violates his right to a trial by jury. He contends that the requisite findings must instead be made by a jury and supported by proof beyond a reasonable doubt. However, as the defendant concedes on appeal, this argument has been repeatedly rejected by Florida courts. See Gudinas v. State, 879 So.2d 616, 618-19 (Fla.2004); Roberts v. State, 923 So.2d 578, 582 (Fla. 5th DCA 2006); Tillman v. State, 900 So.2d 633, 633-34 (Fla. 2d DCA 2005); Frumenti v. State, 885 So.2d 924, 924 (Fla. 5th DCA 2004); McBride v. State, 884 So.2d 476, 477-78 (Fla. 4th DCA 2004); Saunders v. State, 863 So.2d 458, 459 (Fla. 1st DCA 2004); Graham v. State, 822 So.2d 576, 578-79 (Fla. 1st DCA 2002); Jones v. State, 791 So.2d 580, 581 (Fla. 1st DCA 2001); Saldo v. State, 789 So.2d 1150, 1151 (Fla. 3d DCA 2001); Gordon v. State, 787 So.2d 892, 893-94 (Fla. 4th DCA 2001). Additionally, the habitual felony offender statute is based solely on prior convictions and therefore does not require a jury determination pursuant to Apprendi. See Apprendi 530 U.S. at 490, 120 S.Ct. 2348 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).

Nevertheless, the defendant argues that, in light of Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), this Court should reevaluate the constitutionality of the habitual felony offender statute. However, the defendant makes no assertions as to what aspect of Shepard would warrant this Court to do so. Additionally, at least one Florida court has recently rejected an argument that the prior convictions exception is no longer valid in light of Shepard. See Roberts, 923 So.2d at 582 (“Roberts argues that the prior convictions exception is no longer valid in light of Shepard. We disagree. Our supreme court has consistently ruled that the habitual offender statutes meet constitutional muster. Gudinas, 879 So.2d at 619. Nothing in Shepard changes this analysis.”).

Accordingly, the defendant’s conviction and sentence are

AFFIRMED.

BROWNING, C.J., and VAN NORTWICK, J., concur.

      . This definition is analogous to the definition of insanity-a mental infirmity, disease, or defect which renders a person unable to understand the nature and quality of his act or its consequences or incapable of distinguishing right from wrong. See Mathis v. State, 682 So.2d 175 (Fla. 1st DCA 1996). “Florida courts have previously allowed qualified experts to testify as to whether the defendant was or was not sane at the time of the crime.” Reynolds v. State, 837 So.2d 1044, 1047 (Fla. 4th DCA 2002).


text:
    STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellant, v. Pearlie ROCHELLE, as Personal Representative of the Estate of Clifford E. Jones, Jr., deceased, Appellee.
    Nos. 1D07-1211, 1D07-2046.
    District Court of Appeal of Florida, First District.
    March 13, 2008.
    John D. Buchanan, Jr., and J. Steven Carter of Henry, Buchanan, Hudson, Sú-ber & Carter, P.A., Tallahassee, for Appellant.
    Charles Barfield of Law Offices of Charles A. Barfield, Orlando; J. Scott Murphy of Allen & Murphy, P.A., Mait-land, for Appellee.
   PER CURIAM.

Appellant seeks review of evidentiary rulings made during trial and also of a cost judgment entered in favor of appellee after trial. As to the evidentiary rulings, the trial court did not abuse its broad discretion under section 90.403, Florida Statutes. Accordingly, we AFFIRM the jury verdict. Given appellee’s concession as to a portion of the cost judgment, we REMAND to the trial court with directions that an amended judgment be entered, deducting $6,617.60.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

KAHN, PADOVANO, and LEWIS, JJ., concur.


author: PER CURIAM. WEBSTER, J.,

text:
    RABBIT HILL HOMEOWNERS ASSOCIATION, INC., Appellant, v. Jack A. CORY and Kenya Cory, Appellees.
    No. 1D07-3498.
    District Court of Appeal of Florida, First District.
    March 13, 2008.
    Daniel E. Manausa and Mary W. Colon of Smith, Thompson, Shaw & Manausa, P.A., Tallahassee, for Appellant.

      James M. DuRant, Jr., and Joseph R. Boyd of Boyd, DuRant & Sligher, P.L., Tallahassee, for Appellees.
   PER CURIAM.

Appellant seeks review of a final judgment assessing costs and attorney’s fees, arguing that, having failed to plead entitlement to attorney’s fees, such fees should not have been awarded. Because the record contains competent substantial evidence to support the trial court’s finding that appellant recognized and acquiesced to appellees’ claim for attorney’s fees and, accordingly, waived its right to insist that the claim be set forth in a pleading, we affirm. See Stockman v. Downs, 573 So.2d 835, 837-38 (Fla.1991) (holding that, while “a claim for attorney’s fees ... must be pled,” “[wjhere a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees”) (citations omitted).

AFFIRMED.

BENTON and POLSTON, JJ., concur; WEBSTER, J., concurs with written opinion.

WEBSTER, J.,

concurring.

I agree completely with the panel’s opinion. I write only to urge our supreme court to reconsider its holding in Stock-man that a party that, “by its conduct recognizes or acquiesces to [a claim for attorney’s fees] or otherwise fails to object to the failure to plead entitlement, ... waives any objection to the failure to plead a claim for attorney’s fees.” 573 So.2d at 838. I believe that such a rule is ill-considered and spawns more litigation than it prevents.

In Stockman, the court “h[e]ld that a claim for attorney’s fees, whether based on statute or contract, must be pled” and that “[flailure to do so constitutes a waiver of the claim.” Id. at 837-38. However, the court also held that such a waiver might, itself, be “waive[d]” if the opposing party, “by its conduct recognizes or acquiesces to th[e] claim or otherwise fails to object to the failure to plead entitlement.” Id. at 838. The court has since revisited this matter on several occasions. In Sandoval v. Banco de Comercio, S.A., 585 So.2d 934, 934 (Fla.1991), it reaffirmed both of the Stockman holdings — that a claim for attorney’s fees must be pled and that an opposing party that, “by its conduct recognizes or acquiesces to th[e] claim or otherwise fails to object to the failure to plead entitlement, ... waives any objection to the failure to plead a claim for attorney’s fees.” Stockman, 573 So.2d at 838. Subsequently, in Green v. Sun Harbor Homeowners’ Association, 730 So.2d 1261, 1263 (Fla.1998), the court clarified the first of the Stockman holdings, stating that the requirement that a claim for attorney’s fees be pled must be read in the context of the definition of “pleadings” found in Florida Rule of Civil Procedure 1.100(a). It did not, however, discuss the second Stockman holding. Most recently, in Caufield v. Cantele, 837 So.2d 371, 377-78 (Fla.2002), the court further clarified the first Stock-man holding, concluding that while the claim for attorney’s fees must be pled, “the specific statutory or contractual basis for [the] claim ... need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim.” The only mention of the second Stockman holding appears in a cryptic footnote:

In Stockman, this Court recognized an exception to this rule [i.e., the rule “that a claim for attorney’s fees, whether based on statute or contract, must be pled”]: “Where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.” 573 So.2d at 838. While the Fifth District found the exception inapplicable to the instant case, the Caufields have not alleged that the exception is applicable.... Therefore, we do not alter the general scope of the exception or address its specific applicability to the instant case.

Id, at 377 n. 6 (emphasis added).

It strikes me that the second part of Stockman’s second holding (i.e., that a party “waives any objection to the failure to plead a claim for attorney’s fees” if the party “fails to object to the failure to plead entitlement”) makes little sense. Why would a party that was aware that its opponent might be entitled to attorney’s fees if the opponent ultimately prevailed ever object to the opponent’s failure to plead entitlement to fees? A good argument might be made that doing so would amount to malpractice. Moreover, it seems to me that the first part of Stock-man’s second holding (i.e., that a party “waives any objection to the failure to plead a claim for attorney’s fees” if, “by its conduct!, ⅛] recognizes or acquiesces to” the claim) has clearly spawned more litigation than it has resolved. E.g., Auglink Commc’ns, Inc. v. Canevari, 932 So.2d 338 (Fla. 5th DCA 2006); Sardon Found. v. New Horizons Serv. Dogs, Inc., 852 So.2d 416 (Fla. 5th DCA 2003); Precision Tune Auto Care, Inc. v. Radcliffe, 815 So.2d 708 (Fla. 4th DCA 2002); Taylor v. T.R. Props., Inc., of Winter Park, 603 So.2d 1380 (Fla. 5th DCA 1992).

I suggest that this is an area of procedure where the administration of justice would be better served by eliminating altogether the exception to the general rule established by Stockman (what I have referred to here as the second Stockman holding). Doing so would result in a bright-line rule that failure to request attorney’s fees in a pleading waives the right to such fees. I suspect that such a bright-line rule would significantly reduce the volume of litigation addressed to this issue. Moreover, it seems to me that such a rule should be incorporated into the Florida Rules of Civil Procedure to afford proper notice of the pleading requirement. Logically, the addition of such a rule would probably fit best within either rule 1.110 or rule 1.120. I hope that both our supreme court and The Florida Bar Civil Procedure Rules Committee will consider my proposal.


text:
    Timothy C. FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3852.
    District Court of Appeal of Florida, First District.
    March 13, 2008.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this criminal appeal, the defendant, Timothy Flowers, challenges his conviction and sentence for failing to properly register as a sex offender. He alleges that the trial court erred by failing to conduct an adequate Faretta inquiry prior to allowing him to represent himself at trial. We agree and reverse.

When a defendant indicates that he wishes to waive his right to counsel and represent himself, the trial court is obligated to conduct a Faretta inquiry to determine if he is knowingly and intelligently waiving his right to counsel and is “aware of the dangers and disadvantages of self-representation.” Faretta v. Cal., 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Fla. R. Crim. P. 3.111(d). The failure to conduct an adequate Faretta inquiry is per se reversible error. See Case v. State, 865 So.2d 557, 559 (Fla. 1st DCA 2003).

In the instant case, the trial court clearly did not conduct an adequate Faret-ta inquiry after the defendant indicated that he wished to represent himself. Although the trial court did advise the defendant of the disadvantages and dangers of self-representation, the trial court did not advise the defendant of the advantages of representation by counsel nor did it inquire into the defendant’s age, education, ability to read and write, or any mental or physical conditions.

The State argues that the trial court’s inquiry was adequate because the defendant was familiar with the criminal justice system, that the defendant’s motion to dismiss showed he could read and write, and that the trial court had the opportunity to observe the defendant’s demeanor and ability to express himself. The trial court, however, did not expressly rely on any of those reasons in finding that the defendant’s waiver of counsel was freely and voluntarily given. See Beaton v. State, 709 So.2d 172, 173-74 (Fla. 4th DCA 1998) (holding that, notwithstanding its familiarity with a particular defendant, Faretta requires that a trial court make a sufficient record that indicates how the defendant’s background, including his age, mental status, and education, affects his competency to waive his right to counsel).

Accordingly, we reverse the defendant’s conviction and sentence and remand for a new trial. At that time, the defendant may waive his right to counsel if the trial court conducts an adequate Faretta hearing and determines that the waiver is made knowingly and intelligently.

REVERSED and REMANDED for a new trial with either appointed counsel or a valid waiver of the right to counsel.

BROWNING, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


author: CANADY, Judge.

text:
    Tannis PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3645.
    District Court of Appeal of Florida, Second District.
    March 14, 2008.
   CANADY, Judge.

Tannis Phillips appeals the postconviction court’s order summarily denying his motions filed under Florida Rules of Criminal Procedure 3.850 and 3.800(c). We dismiss Mr. Phillips’ appeal of the order denying his motion to reduce or mitigate sentence pursuant to rule 3.800(c), an order which is not appealable. See Lancaster v. State, 821 So.2d 416, 417 (Fla. 2d DCA 2002). We affirm without comment the postconviction court’s denial of claims five, six, and seven in Mr. Phillips’ rule 3.850 motion.

In summarily denying as facially insufficient claims one through four, however, the postconviction court was without the benefit of Spera v. State, 971 So.2d 754 (Fla.2007), in which the Florida Supreme Court held that in dismissing a first post-conviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected.” Id. at 755; see also Bryant v. State, 901 So.2d 810, 819 (Fla.2005) (“[D]ue process demands that some reasonable opportunity be given to defendants who make good faith efforts to file their claims in a timely manner and whose failure to comply with the rule is more a matter of form than substance.”).

There is nothing in the limited record before this court to demonstrate that Mr. Phillips could not sufficiently correct the deficiencies in pleading if given the opportunity to amend his claim. Accordingly, we reverse and remand for further proceedings in accordance with Spera.

Dismissed in part, affirmed in part, reversed in part, and remanded.

DAVIS and VILLANTI, JJ., Concur.


author: STRINGER, Judge.

text:
    In re Name Change Petition of Rudolph HARRIS, Appellant.
    No. 2D07-3961.
    District Court of Appeal of Florida, Second District.
    March 14, 2008.
    Rudolph Harris, pro se.
   STRINGER, Judge.

Rudolph Harris, an inmate in the Har-dee Correctional Institution, seeks review of the trial court’s order dismissing his petition for name change with prejudice. The trial court determined that Harris lacked standing to seek a name change pursuant to section 68.07(2)(k), Florida Statutes (2005), because his civil rights were suspended when he was incarcerated. Harris correctly argues that section 68.07(2)(k) does not apply to him because he was convicted before the effective date of the statute. See In re Name Change Petition of Mullin, 892 So.2d 1214, 1215 (Fla. 2d DCA 2005). Accordingly, the trial court erred in summarily dismissing Harris’ petition for name change.

Reversed and remanded.

SILBERMAN and KELLY, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Alan B. HEPFER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3069.
    District Court of Appeal of Florida, Second District.
    March 19, 2008.

      James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph Lee, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Alan B. Hepfer, Jr., appeals his convictions and sentences for two counts of attempted second-degree murder with discharge of a firearm, burglary of a structure while armed (designated as count III), grand theft, and use of a firearm in the commission of a felony (designated as count V)- We reverse the conviction and sentence for count V and remand for the trial court to correct errors contained in the written judgment with respect to count III. We affirm in all other respects.

At a bench trial, the State established that Hepfer and a friend had burglarized a day-care center and then left. Police officers responded to the burglary scene and investigated for over an hour. Hepfer and his friend returned to the scene while the officers were still there. One officer observed Hepfer with a gun and ordered him to drop it. Hepfer and his friend fled, and the officer pursued them toward a wooded area. Hepfer shot at the officer, and then when another officer arrived, Hepfer fired another shot.

At the conclusion of the trial, the trial court found Hepfer guilty of the two attempted murders with discharge of a firearm and grand theft. The court also found Hepfer guilty of burglary of a structure but concluded that the State failed to establish beyond a reasonable doubt that Hepfer was armed when he committed the burglary. Finally, the court did not find Hepfer guilty of count V, the separate charge of use of a firearm in the commission of a felony. The written judgment and sentences are inconsistent with the trial court’s pronouncements as they reflect a conviction for first-degree burglary of a structure while armed pursuant to section 810.02(2)(b), Florida Statutes (2002), as to count III and a conviction and sentence as to count V concerning the firearm.

Although Hepfer filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), the trial court failed to rule on the motion within sixty days. Thus, the motion is deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B); Jones v. State, 898 So.2d 209, 210 (Fla. 2d DCA 2005). The State properly concedes that the written judgment and sentences do not conform to the trial court’s oral pronouncement. See Driver v. State, 710 So.2d 652, 653 (Fla. 2d DCA 1998) (“When a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls.”). Accordingly, we reverse the conviction on count V and remand for the trial court to enter a corrected judgment and sentence eliminating that count. On remand, the trial court shall also correct the judgment by changing Hepfer’s conviction with respect to count III from “First Degree Burglary WThile Armed,” “Punishable by Life” to third-degree burglary of a structure. The court shall correct the statute cited in support of the burglary conviction from section 810.02(2)(b) to section 810.02(4)(a). The sentence remains unchanged as to the burglary conviction because the trial court pronounced a sentence of five years’ imprisonment and the written sentence conforms to the oral pronouncement.

Affirmed in part, reversed in part, and remanded.

CANADY and WALLACE, JJ., Concur.


text:
    D.M.L., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5609.
    District Court of Appeal of Florida, Second District.
    March 19, 2008.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

D.M.L. appeals an order of the trial court finding him guilty of criminal mischief. On appeal, D.M.L. challenges various evidentiary rulings of the trial court. We reverse and remand for a new adjudicatory hearing.

I. Background

D.M.L. was charged with criminal mischief for causing damage to a truck driven by an acquaintance named Cory. At the adjudicatory hearing, Cory and his girlfriend, Brianna, testified that there was bad blood between Cory and D.M.L. and that D.M.L. intentionally caused damage to the truck with his skateboard. D.M.L. testified that Cory tried to hit him with a baseball bat and that D.M.L. attempted to defend himself by holding up his skateboard. According to D.M.L., the baseball bat swung by Cory knocked D.M.L.’s skateboard into the truck, causing the damage. D.M.L.’s girlfriend at the time of the offense, Melody, testified for the defense, but she was prevented from testifying regarding a phone call between Melody and Brianna on the day of the offense. On rebuttal, the State called Melody, who testified that D.M.L. asked her to lie and say that Cory tried to hit him with a bat. On cross-examination of Melody, the trial court precluded the defense from impeaching Melody with a prior inconsistent statement.

At the conclusion of the hearing, the trial court found that D.M.L.’s defense was not credible and that the State’s witnesses were credible. The trial court found D.M.L. guilty of criminal mischief, withheld adjudication, and placed him on probation.

II. Analysis

A. Self-Defense

D.M.L. argues as a threshold matter that the trial court improperly excluded evidence on the basis that D.M.L. could not assert a defense of self-defense to the offense of criminal mischief.

Section 776.012, Florida Statutes (2006), provides that “[a] person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.” As D.M.L. argues, the statute does not limit this defense to certain offenses. It does not prohibit the use of this defense against property crimes. See, e.g., Bevan v. State, 908 So.2d 524 (Fla. 2d DCA 2005) (implicitly holding that self-defense applies to a criminal mischief charge by reversing convictions for criminal mischief and assault and remanding for new trial because circular self-defense instruction was given); State v. Arth, 121 Wash.App. 205, 87 P.3d 1206, 1209 (2004) (“[S]elf-defense may be available to a person charged with malicious mischief when the damage arises out of the accused’s use of force against another.”); Boget v. State, 74 S.W.3d 23, 31 (Tex.Crim. App.2002) (holding that self-defense “is available in a prosecution for criminal mischief where the mischief arises out of the accused’s use of force against another”).

According to D.M.L., he was using force in self-defense against Cory when Cory swung the bat at him and that is when the damage to the truck occurred. The trial court erred to the extent that it based its evidentiary rulings — which are further discussed below — on the view that D.M.L. could not assert a defense of self-defense in these circumstances.

B. The Relevance of Melody’s Testimony for the Defense

D.M.L. also argues that the trial court erroneously excluded Melody’s testimony for the defense that she was on the phone with Brianna right around the time of the offense and heard Cory state in the background, “There he is,” immediately before the call was disconnected. D.M.L. claims that this testimony — which was not inadmissible hearsay — would have shown that Cory was actively looking for D.M.L. Cory had testified that he came across D.M.L. after school but that it was not a planned meeting. However, he admitted that he wanted to confront D.M.L. because they had been angry with each other earlier that day. Cory also admitted that he had a baseball bat in his truck with him. Brianna testified that Cory reached for his bat as he was getting out of the truck but that she grabbed it from him. D.M.L. contended that Cory was looking to fight with D.M.L. that afternoon. D.M.L. testified that he was riding his skateboard when Cory pulled into the parking lot, slamming his brakes and screeching his tires. D.M.L. further testified that Cory grabbed a bat from his truck and went after D.M.L. with the bat.

D.M.L. also asserts that evidence of Melody’s phone conversation with Brianna would have cast doubt on Brianna’s credibility because Brianna had denied that the phone conversation occurred.

“A trial court has wide discretion in areas concerning the admissibility of evidence, and such rulings will not be disturbed absent an abuse of discretion. A court’s discretion is limited, however, by the rules of evidence.” Hinojosa v. State, 857 So.2d 308, 309 (Fla. 2d DCA 2003) (citation omitted).

The trial court excluded all of Melody’s testimony regarding her phone call with Brianna on the basis that it was not relevant. However, it is clear that Melody’s testimony regarding the phone call with Brianna was relevant because it was “evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2006). The phone call occurred right around the same time as the charged offense, and Brianna, one of the State’s key witnesses, had denied talking to Melody on the phone that day. The trial court placed great weight on Brianna’s testimony in making its finding of guilt, and Melody’s testimony regarding her phone conversation with Brianna would have cast doubt on Brianna’s credibility. See § 90.608(5), Fla. Stat. (2006) (providing that the credibility of a witness may be attacked with “[p]roof by. other witnesses that material facts are not as testified to by the witness being impeached”). Melody’s testimony would have also supported D.M.L.’s defense that Cory instigated the altercation that resulted in damage to Cory’s truck. See Jacobs v. State, 962 So.2d 934, 936 (Fla. 4th DCA 2007) (“If there is any possibility of a tendering of evidence to create a reasonable doubt, the rules of evidence are usually construed to allow for it’s [sic] admissibility. ... Regardless of how the trial court may view the evidence, it should be admitted as relevant if it tends to prove or support the theory of defense.” (citations omitted)).

Melody’s testimony regarding the statement made by Cory — “There he is” — was not offered to prove the truth of the matter asserted, i.e., that D.M.L. was there. Instead, it was offered to prove Cory’s state of mind, i.e., that he was looking for D.M.L., or to prove or explain Cory’s subsequent act of swinging the bat at D.M.L. See § 90.803(3) (providing that a hearsay exception exists when “[a] statement of the declarant’s then-existing state of mind” is offered to “[p]rove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action” or to “[pjrove or explain acts of subsequent conduct of the declarant”); Everett v. State, 801 So.2d 189, 191 (Fla. 4th DCA 2001) (holding that an out-of-court statement “may be admissible to prove a variety of issues besides the truth of the matter, such as the declarant’s state of mind”).

Because Melody’s testimony regarding the phone call was relevant to D.M.L.’s defense and Brianna’s credibility and because it was admissible pursuant to a hearsay exception, the trial court abused its discretion in excluding it.

C. The Impeachment of Melody’s Rebuttal Testimony for the State

D.M.L. further claims that the trial court should have allowed him to question Melody about a prior statement that was inconsistent with her trial testimony that D.M.L. had asked her to lie for him during trial. D.M.L. claims that the trial court mistakenly believed that defense counsel could not confront the witness with her prior statement. He also argues that the trial court erred in excluding the prior inconsistent statement as a sanction for a discovery violation without first conducting a Richardson hearing.

When the State called Melody as a rebuttal witness, she testified on direct examination that D.M.L. asked her to lie and say that Cory had gone to hit him with a bat and that Cory hit the skateboard with the bat causing the skateboard to hit the side of Cory’s truck. On cross-examination, defense counsel asked if Melody had told the defense investigator that she believed D.M.L. wanted her to lie for him. The State objected on the basis that they never received the evidence in discovery.

Defense counsel argued that Melody’s statement to the investigator was work product, and the trial court stated that defense counsel should have brought in her investigator to testify. Defense counsel argued that she could impeach Melody with her own statement and that she was trying to get out Melody’s “prior inconsistent statement.” The trial court then sustained the State’s objection to the impeachment evidence. In doing so, the trial court precluded the defense from proffering the prior inconsistent statement which it sought to use to impeach Melody.

First, the trial court erroneously excluded Melody’s prior inconsistent statement on the basis that it had not been disclosed to the State. While Melody’s statement to the investigator may have been protected by the work product privilege, the privilege ceased to exist when the defense attempted to use the statement as impeachment evidence at trial. See Am. Motors Corp. v. Ellis, 403 So.2d 459, 463 (Fla. 5th DCA 1981) (relying on United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975)). However, the trial court could have allowed the State to review the statement, during a recess if necessary, since the work product privilege applied until the defense decided to use the privileged information at trial. See id.

Even if the use by the defense of Melody’s statement to the investigator constituted a possible discovery violation, the trial court failed to conduct the required Richardson hearing. See State v. Eaton, 868 So.2d 650, 653 (Fla. 2d DCA 2004). “When the trial court learns of a possible discovery violation, it must conduct a hearing pursuant to Richardson v. State, 246 So.2d 771, 775 (Fla.1971).” Eaton, 868 So.2d at 653. The exclusion of evidence “as a sanction for a violation of the discovery rules ... should only be imposed when there is no other adequate remedy.” Grace v. State, 832 So.2d 224, 227 (Fla. 2d DCA 2002). The trial court’s failure to conduct a Richardson hearing was not harmless error in this case because there is a reasonable possibility that D.M.L. was prejudiced by the improper exclusion of the impeachment evidence. See Johnson v. State, 728 So.2d 1204, 1205 (Fla. 3d DCA 1999) (holding that in cases where defense evidence has been erroneously excluded for alleged discovery violations, “the reviewing court must determine whether the erroneously excluded evidence could have had an effect on the jury favorable to the defendant ] or, in other words, could the improper exclusion have reasonably affected the outcome of the case”). Melody’s direct rebuttal testimony was extremely harmful to D.M.L.’s defense, and the trial court gave weight to Melody’s testimony.

Second, it is clear that the trial court misunderstood the proper method of impeaching a witness with a prior inconsistent statement.

Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.

§ 90.614(2). “Prior to questioning a witness about the contents of a previous inconsistent statement, counsel must call to the witness’s attention the time, place, and person to whom the statement was allegedly made.” Pearce v. State, 880 So.2d 561, 569-70 (Fla.2004). “[I]f the witness admits making the prior statement, examining counsel may not offer any evidence to prove the statement was made,” but if the witness does not distinctly admit making the prior statement, extrinsic evidence is admissible. Id. at 570. Defense counsel was correct when she argued that she must first confront Melody about the prior statement before introducing testimony from the defense investigator.

It is not clear from the record what the prior inconsistent statement by Melody would have been because the trial court cut off defense counsel and ruled that defense counsel was not going to impeach Melody with her own statement. Therefore, any failure of D.M.L.’s counsel to proffer the prior inconsistent statement was caused by the trial court’s erroneous refusal to permit anything other than the defense investigator’s testimony. See Smith v. State, 594 So.2d 846, 848 (Fla. 2d DCA 1992) (holding that defense counsel’s failure to proffer evidence did not prevent reversal because defense counsel attempted to proffer evidence but was cut off by trial judge); Kimble v. State, 587 So.2d 1094, 1096 (Fla. 2d DCA 1989) (“[T]he trial court prevented the appellant’s attorney from actually confronting the witness with her prior inconsistent statement. Thus, any failure of the appellant’s attorney to lay the proper predicate was caused by the trial court’s refusal to permit it.”); Charles W. Ehrhardt, Florida Evidence § 104.3, at 32 (2007) (“[I]f the court erroneously refuses to permit counsel to make an offer, the issue will be preserved for appeal.”).

III. Conclusion

D.M.L. raises several other issues on appeal, which we conclude are without merit. Based on the errors discussed above, we reverse the juvenile court’s finding of guilt and remand for a new adjudicatory hearing.

Reversed; remanded.

STRINGER and VILLANTI, JJ., Concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971), receded from in part by Spradley v. State, 293 So.2d 697 (Fla.1974).


author: SALCINES, Judge.

text:
    Rolando GARCIA, Doc #748408, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4646.
    District Court of Appeal of Florida, Second District.
    March 19, 2008.

      James Marion Moorman, Public Defender, and Christopher Desrochers, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, and Ha Dao, Assistant Attorney General (substituted as counsel of record), Tampa, for Appellee.
   SALCINES, Judge.

Rolando Garcia timely appeals his conviction for capital sexual battery. We affirm.

Garcia was charged with capital sexual battery by a person at least eighteen years of age on a child less than twelve years of age for a single offense that occurred sometime between July 11 and July 31, 2004. See § 794.011(2)(a), Fla. Stat. (2004). The information alleged that Garcia “did while being eighteen (18) years of age or older, commit a sexual battery upon T.M.B. (d.o.b.: 11/10/99), a child less than twelve years of age, to-wit: the defendant, with his mouth and/or tongue, had union with the vagina of T.M.[B.], contrary to section 794.011(2)(a), Florida Statutes.” At the time of the offense, Garcia was forty-nine years old and the victim was four years, eight months old. Following the return of a guilty verdict by a jury, Garcia was convicted of this capital felony and sentenced to life in prison.

On appeal, Garcia argues that the trial court erred in denying his request to instruct the jury on lewd or lascivious molestation under section 800.04(5)(a), Florida Statutes (2004), as a permissive lesser included offense. Because the statutory elements of lewd or lascivious molestation were not alleged in the information charging Garcia with capital sexual battery, the trial court did not err in denying Garcia’s request.

The supreme court has recognized that under the revised version of section 800.04 applicable in the present case, one or more of the offenses specified in that statute might possibly constitute lesser included offenses to sexual battery under section 794.011, despite prior precedent that would suggest otherwise. See Williams v. State, 957 So.2d 595, 597-98 (Fla.2007). The supreme court, in Williams, held that the crime of lewd or lascivious battery prohibited by section 800.04(4)(a), Florida Statutes (2002), may be a permissive lesser included offense of the crime of sexual battery with a deadly weapon or use of force likely to cause serious personal injury charged pursuant to section 794.011(3), Florida Statutes (2002). Williams, 957 So.2d at 598. The supreme court compared sections 800.04(4)(a) and 794.011(3) to determine whether the greater crime could be charged in a manner encompassing the lesser. Id. Like the statutory provisions at issue in the present case, these provisions overlapped in regard to the age range of the victim. However, unlike the lesser offense at issue in the present case, lewd and lascivious battery proscribed “sexual activity” by reference to the chapter’s definitional provision, and the definition for sexual activity under chapter 800 was virtually identical to the definition for sexual battery set forth in chapter 794. See Williams, 957 So.2d at 598-99 (comparing section 794.01l(l)(h), Florida Statutes (2002), with section 800.04(l)(a), Florida Statutes (2002)). The court determined that “when the State alleges that the victim was between ages twelve and fifteen in a count charging a violation of section 794.011(3) (sexual battery as defined), that charge subsumes lewd or lascivious battery under section 800.04(4)(a) (sexual activity as defined).” Williams, 957 So.2d at 599.

After deciding that the greater offense subsumed the lesser offense, the supreme court addressed whether the charging document filed in the case (the information) and the evidence presented at trial encompassed the elements of lewd or lascivious battery, justifying an instruction thereon. Id. Indeed, upon proper request, a trial court not only is justified but is required to give a jury instruction on a permissive lesser included offense when the information specifically alleges all the statutory elements of the lesser offense and the evidence presented at trial supports the lesser offense. See Jones v. State, 666 So.2d 960, 964 (Fla. 3d DCA 1996) (citing Brown, v. State, 206 So.2d 377, 383 (Fla.1968)).

Both the information and the evidence in Williams supported an instruction on the lesser offense. The same cannot be said in the present case. The information alleged that Garcia’s “mouth and/or tongue” had union with the child’s vagina and that Garcia was at least eighteen and the child was under twelve at the time of the offense. Garcia requested an instruction on the offense of lewd or lascivious molestation under section 800.04(5)(a), which proscribes certain intentional touching “in a lewd or lascivious manner.” Specifically, section 800.04(5)(a) states that

[a] person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

§ 800.04(5)(a), Fla. Stat. (2004). As set forth above, lewd or lascivious molestation can be committed by intentionally touching the specified anatomical areas of the victim or the clothing covering those anatomical areas “in a lewd or lascivious manner,” or by forcing or enticing the victim to so touch the perpetrator. The information in this case did not allege that Garcia touched the victim in a lewd or lascivious manner.

Garcia argues that lewd molestation includes any touching of the genitals and genital area of a person under the age of sixteen, and therefore, any conduct that would constitute capital sexual battery would also constitute lewd molestation. We do not entirely agree. Although a particular act of sexual battery might also subsume the intentional touching (of the specified anatomical areas) element of the lewd or lascivious molestation statute, it does not follow that the particular act was necessarily committed in a “lewd or lascivious manner.”

Inasmuch as a conviction for lewd or lascivious molestation would not have been supported by the information filed in this case, the trial court did not err in refusing to give the requested instruction. Accordingly, we affirm.

Affirmed.

CASANUEVA and LaROSE, JJ., Concur.

      . A sampling of statutes from other states, discussed in an overview of statutory rape laws in the United States and the historical basis for their development, reveals that a wide array of statutory language has been developed to address sexual penetration as well as sexual contact between adults and children. See Charles A. Phipps, Children, Adults, Sex and the Criminal Law: In Search of Reason, 22 Seton Hall Legis. J. 1, 55 (1997). Some of those statutes criminalize specified nonsexual acts perpetrated upon the anatomical portion of a child’s body understood to include the sexual organs if the requisite intent is demonstrated, i.e., the intent to degrade or humiliate the victim; the intent to arouse or satisfy "aggressive desires”; the intent to "abuse either party”; or the intent to cause "substantial emotional or bodily pain.” Id.