author: TAYLOR, J.

text:
    Stacey FORBES, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1554.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.

      William Gelin of Tribune Legal Services, LLC, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Stacey Forbes, a prospective juror, was found guilty of criminal contempt and sentenced to four months in the Broward County Jail for responding untruthfully to a written questionnaire concerning prior arrests and failing to disclose a pending criminal charge during jury selection. He appeals the contempt judgment on procedural grounds and challenges the sufficiency of the evidence to support his adjudication and punishment for criminal contempt. We affirm.

Nineteen-year-old Stacey Forbes was summoned for jury duty. He appeared at the Broward County Courthouse and was sworn for voir dire in a criminal case. Before questioning each juror individually, the court asked the prospective jurors to raise their hands if they had any pending criminal charges; no one did. The court then asked each juror to respond verbally to a written questionnaire. The court advised the venire to “err on the side of caution” if they were uncertain what the questions required, and told the jurors that they could request a private meeting if they were embarrassed about sharing certain information.

Appellant was the first member of the venire to be called upon to respond to the written questionnaire. Question 15 asked: “Have you or any member of your family ever been arrested?” Appellant read the question aloud: “And have you ever been a member — anyone in your family been arrested? No.” Appellant was not corrected on his misreading of Question 15 nor questioned further about his response by either the state or the defense.

After both parties questioned the prospective jurors and selection began, the state alerted the court that it had discovered that appellant had a prior juvenile arrest and a pending criminal charge. The state moved to strike appellant for cause. The court said that “if he’s been less than candid with this court, he’s not leaving today.”

The court then called appellant into the courtroom, where the following exchange took place:

Court: Do you read and write English? Forbes: Yes.
Court: And you read the form, the questionnaire, am I right?
Forbes: Yes.
Court: And you answered yes — and you answered no to question number fifteen, have you or any member of your family ever been arrested?
Forbes: Yes.
Court: Well, do you have anything else you’d like to tell us?
Forbes: I got arrested for possession of marijuana.
Court: What else?
Forbes: That’s it.

The court reminded appellant that before questioning the jurors individually, it asked them to advise the court if they had any pending criminal charges. The court asked him:

Court: How about earlier on, when I asked everyone on qualifications to be a juror, does anyone have any charges pending against them. Remember that question?
Forbes: I didn’t — I wasn’t familiar, ’cause—
Court: When I asked everybody about their lawful — about their legal qualifications to be on a jury? Remember I asked everybody if you’re over the age of eighteen, citizen of the United States, resident of this county, and then one of the other questions I asked was whether you have any criminal charges pending against you; do you remember that? Forbes: Yes.
Court: So it’s clear, that you do have charges pending against you — felony charges; is that right?
Forbes: I got arrested.
Court: Yeah. For? Possession of more than twenty grams of marijuana; right?
Forbes: Yeah.
Court: Okay. And that’s a felony charge. So you have felony charges pending against you; correct?
Forbes: Yes.

When the court reminded appellant that the questionnaire also asked if any family member had ever been arrested, appellant initially said “Nobody in my family,” but then added, “My dad, yeah.” Appellant seemed confused when the court told him that they had discovered that he had been arrested twice. He asked, “Twice?” Whereupon, the court said:

You know what, I’ve had enough of him. Put him in the back of the courtroom. You’re not leaving.

After striking appellant for cause, the court ordered him to remain in the back of the courtroom for a contempt proceeding. Later, the court asked appellant if he could afford a lawyer, explaining that there would be a direct criminal contempt proceeding. Appellant asked to call his mother to see if she could help him find a lawyer. The court deputy later advised the court that appellant’s mother was unable to obtain an attorney for appellant.

Shortly thereafter, the court advised appellant that it was holding direct criminal contempt proceedings for perjury, for lying to the court under oath regarding his past criminal record, prior arrests, and his dad’s prior arrest. The court asked appellant to explain why he did not answer truthfully when asked about pending charges and prior arrests. Appellant explained:

Okay. Well, Your Honor, honestly, truthfully, why this happened is because I was kind of nervous when I was reading the paper and I didn’t get to read it like fully. I didn’t no [sic] it required it, so I said no. But I’m sorry for all this disrespect I brang [sic] to your courtroom and for the holdup. I didn’t intentionally meant [sic] for that to happen.

When the court asked appellant why it should not hold him in contempt, he responded:

Honestly, I have poor reading skills.
I didn’t get to finish high school, so— well, that particular question you read out loud, nice and clear, I didn’t understand it that well.

The court allowed appellant an opportunity to present mitigating factors regarding a sentence. It then found beyond a x-easonable doubt that appellant knowingly lied under oath to the court regarding his individual and family arrest history and his current criminal charge. The court held him in direct criminal contempt of court and sentenced him to four months in the Broward County Jail. Later, the court issued a written order reciting the facts and finding beyond a reasonable doubt that appellant knowingly lied under oath.

Appellant challenges the contempt judgment on both procedural and substantive grounds. As to procedure, he argues that the trial court eired in holding direct criminal contempt proceedings under rule 3.830 of the Florida Rules of Criminal Procedure, instead of indirect criminal contempt proceedings under rule 3.840. Consequently, he was denied the greater due process rights afforded by rule 3.840. He further argues, on substantive grounds, that the evidence was insufficient to support his conviction and sentence for criminal contempt.

Criminal contempt is “[a]n offense against the authoi’ity or the dignity of a court or of a judicial officer,” Ex parte Earman, 85 Fla. 297, 95 So. 755, 760 (1923), or “any act which is calculated to embairass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity.” Ex parte Crews, 127 Fla. 381, 173 So. 275, 279 (1937).

We have previously explained that:

The major purpose of the law of contempt is to maintain and preserve the dignity of the judiciary and the orderly administration of justice. The standard to be applied in determining whether conduct is contemptuous is an objective one based upon a determination of the conduct’s tendency to hinder the administration of justice, rather than a subjective one concerned with the sensitivities of a particular judge. Importantly, as noted above, the conduct alleged to be contemptuous must be calculated to cause harm.

Murrell v. State, 595 So.2d 1049, 1050 (Fla. 4th DCA 1992).

At the outset, we note that direct criminal contempt proceedings, as opposed to indirect contempt proceedings, were appropriate in this case. Direct contempt occurs when a person speaks words or commits acts in the presence of the court or a judge acting judicially or when a person resists or interferes with the lawful authority of the court in its presence or so near the court or judge as to interrupt or hinder judicial proceedings. See Earman, 95 So. at 760. Indirect contempt, by contrast, occurs “not in the presence of a court or of a judge acting judicially, but at a distance under circumstances that reasonably tend to degrade the court or the judge as a judicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge.” Id.

Florida Rule of Criminal Procedure 3.830 provides: “A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.” Even though appellant does not dispute that his conduct occurred in the presence of the court, he argues that a charge of perjury should not be addressed summarily by direct criminal contempt proceedings. However, courts have long recognized the power to punish persons for criminal contempt when perjury is established. See Emanuel v. State, 601 So.2d 1273, 1274 (Fla. 4th DCA 1992); Martin v. Case, 231 So.2d 279 (Fla. 4th DCA 1970). The supreme court, in State ex rel. Luban v. Coleman, 138 Fla. 555, 189 So. 713, 714 (1939), enunciated a three-prong test to determine if perjury is validly addressed by a direct criminal contempt proceeding: whether (1) the alleged false answers had an obstructive effect, (2) there existed judicial knowledge of the falsity of the testimony, and (3) the question was pertinent to the issue.

Here, the three-part test is met. First, appellant’s false responses to the court’s questions interrupted jury selection, requiring the court to take time to inquire further of him. Second, the court was presented with irrefutable evidence that appellant had been arrested before and was awaiting prosecution on a felony charge. Third, the court’s questions were relevant to appellant’s qualifications and fitness to serve on a jury. Hence, the court did not err in subjecting appellant to direct criminal contempt proceedings. Further, the court followed the procedural due process requirements of rule 3.830. The rule provides in pertinent part:

The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.

Contrary to appellant’s contention, the trial court did not err in failing to appoint counsel for The direct criminal contempt proceedings. See Roundtree v. State, 651 So.2d 1286 (Fla. 3d DCA 1995) (citing In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), and finding no error in the trial court’s refusal to allow defense counsel to speak for defendant during criminal contempt proceedings); Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975) (holding there is no right to counsel in direct contempt proceedings).

Appellant also challenges the sufficiency of the evidence to sustain his conviction for criminal contempt. Criminal contempt is a crime. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Aaron v. State, 284 So.2d 673, 676 (Fla.1973). Thus, a person charged with criminal contempt is presumed innocent until proven guilty beyond a reasonable doubt. Bowen v. Bowen, 471 So.2d 1274 (Fla.1985); Demetree v. State ex rel. Marsh, 89 So.2d 498 (Fla.1956); Kramer v. State, 800 So.2d 319 (Fla. 2d DCA 2001); Tide v. State, 804 So.2d 412, 413 (Fla. 4th DCA 2001) (quoting Levine v. State, 650 So.2d 666, 668 (Fla. 4th DCA 1995)); Braisted v. State, 614 So.2d 639, 640 (Fla. 4th DCA 1993). Moreover, our review of a contempt judgment is the same as it is for any judgment of criminal conviction.

As explained above, criminal contempt requires some willful act or omission calculated to embarrass or hinder the court or obstruct the administration of justice. See Stevens v. State, 547 So.2d 279, 280 (Fla. 5th DCA 1989); Sewell v. State, 443 So.2d 164, 165 (Fla. 1st DCA 1983). There must be proof that the accused intended to hinder or obstruct the administration of justice. Hunnefeld v. Futch, 557 So.2d 916 (Fla. 4th DCA 1990); Tubero v. Ellis, 472 So.2d 548, 550 (Fla. 4th DCA 1985). In some cases, the person’s intent may be inferred from his actions in violating an express court order or directive. See Linowitz v. State, 498 So.2d 1315 (Fla. 3d DCA 1986) (holding that attorney’s actions in reading transcripts of grand jury proceedings before their disclosure permitted inference that attorney intended to hinder administration of justice). Absent an admission by the accused, intent may be established by circumstantial evidence. See The Florida Bar v. Forrester, 916 So.2d 647, 652 (Fla.2005); Thomson v. State, 398 So.2d 514, 517 (Fla. 2d DCA 1981).

In this case, there was sufficient evidence from which the trial court could infer appellant’s intent to give false testimony during voir dire and, thus, obstruct the administration of justice. The record shows that appellant, along with the other prospective jurors, was placed under oath and given clear and definite instructions on how to respond to questions during jury selection. When appellant, as part of the panel, was asked to raise his hand if he had any pending charges, he did not raise his hand. When he was called upon to individually answer Question 15' — “[h]ave you or any member of your family been arrested” — he answered “no” to that question. He later admitted that his responses were not correct.

•Although appellant explained to the court that he was nervous and confused and did not intend to cause any delay during the proceedings, issues regarding state of mind are for the trier of fact to resolve. See State v. Franchi, 746 So.2d 1126 (Fla. 4th DCA 1999). “Determination of the facts, and inferences to be drawn therefrom, is necessarily left to the decision of the trial judge, and his conclusions as to the acts done, and as to their contemptuous character or effect, will not be lightly disturbed by this court on habeas corpus. Nor will the findings of the judge ordinarily be set aside when reasonably supported by the facts appearing of record.” State ex rel. Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509, 516 (1946). Moreover, “[a] disclaimer of intent to be contemptuous is not sufficient to deprive the court of the power to punish contempt.” Ward v. State, 354 So.2d 438, 439 (Fla. 3d DCA 1978); Mann v. State, 476 So.2d 1369, 1374 (Fla. 2d DCA 1985) (holding that the intent requisite to criminal contempt was evident beyond a reasonable doubt despite contemnor’s testimony that he did not intend to offend the dignity and authority of the court, where court determined by contemnor’s verbal deportment that his actions were willful and calculated to hinder orderly functions of the court).

In this case, the trial court determined that appellant was alert and able to intelligently and voluntarily respond to other questions posed during voir dire. It also noted opportunities appellant was given to come forward with complete and accurate information regarding his and his family members’ prior arrests. The record sufficiently supports the court’s findings that appellant, while under oath, knowingly misrepresented or withheld information concerning prior arrests and a pending criminal charge.

As the trial court found, appellant’s actions constituted contempt because they tended to obstruct justice and interfere with the due administration of justice. Truth and candor during voir dire are critical to a trial judge’s task of administering justice and preserving every litigant’s right to a fair and impartial jury. In maintaining the integrity and efficacy of the jury selection process, trial judges are dependent upon a prospective juror’s honest and candid responses, particularly on matters that bear directly on his or her qualifications and fitness to serve. In this case, appellant had a pending felony charge for possession of marijuana while he was being considered for jury service in a criminal case involving drugs. Appellant’s pending charge not only rendered him ineligible for jury service, but bore directly upon his ability to be a fair and impartial juror.

On a final point, appellant contends that the trial court abused its discretion in sentencing him to four months in jail. He asserts that the sentence is unreasonable, given his youth, confusion, nervousness, and lack of understanding as to the impact of his conduct on the proceedings. He points out that when the court questioned him individually and read Question 15 aloud to him in its entirety, he immediately corrected his responses and added that his father had been arrested. He argues that there was no indication that he purposefully lied to get on the jury panel and insists that his actions “were consistent with a developing teenager’s embarrassment in having to reveal to a courtroom full of officials and much older adults that he had been arrested and has trouble reading.”

Ordinarily, appellate courts in Florida have very limited authority to review sentences which are within the limits prescribed by law. See State ex rel. Grebstein v. Lehman, 100 Fla. 481, 129 So. 818, 821 (1930) (“It is not for this court to say what punishment, if any, another court should inflict for a contempt against that court, so long as it is imposed within the limitations fixed by the Constitution and the laws.”); Bumgarner v. State, 245 So.2d 635, 638 (Fla. 4th DCA 1971) (affirming one-year county jail sentence for contempt and stating that “the penalty imposed by the trial judge should not be diminished by an appellate court” where the record reasonably supports it); Geary v. State, 139 So.2d 891 (Fla. 3d DCA 1962) (declining to disturb a six-month sentence imposed on a juror for violating the court’s order not to discuss the case with a stranger and noting that a request to modify the sentence should be directed to the trial judge).

In Aaron v. State, 284 So.2d 673 (Fla. 1973), the Florida Supreme Court clarified that criminal contempt is a crime and established limits for imposing sentences in contempt convictions. It held that a judge can sentence a person convicted of criminal contempt to a maximum of six months in jail where the judge, rather than a jury, tried the facts in the case. Because the petitioner in Aaron was sentenced to four months in jail following a bench trial for criminal contempt, the supreme court upheld his sentence.

Before Aaron set limits on sentences in contempt cases, trial courts sometimes imposed lengthy prison or jail terms for criminal contempt. Appellate courts reversed those sentences deemed excessive. Sentences were deemed excessive when the “severity of the sentence was not justified by the gravity of the offense” or there was “no indication in the record that the defendant fully appreciated the possible relation of his conduct to the administration of justice.” In addition, courts found the sentences excessive because they did not consider contempt a crime. However, in practically all of the cases wherein contempt sentences were vacated, the courts stressed the trial court’s obligation to exercise its contempt power cautiously and sparingly and to ensure that the severity of the sentence was not disproportionate to the gravity of the offense. See State ex rel. Saunders v. Boyer, 166 So.2d 694, 696 (Fla. 2d DCA 1964) (stating that a judge must ensure that “the severity of the sentence [imposed is] balanced with the gravity of the offense ... and that the sentence [is] not so excessive as to derogate judicial dignity”).

In McDonald, we noted that Aaron’s clarification that criminal contempt is a crime meant that “one found guilty of [contempt] may be sentenced in the same manner as anyone else found guilty of a crime of the same magnitude.” 321 So.2d at 458. Nevertheless, we have continued to recognize that the crime of contempt is unique and to urge courts to use their power to punish contempt cautiously. In Emanuel v. State, 601 So.2d 1273 (Fla. 4th DCA 1992), we explained why courts are admonished to use restraint in exercising this power:

“The power to punish direct criminal contempt is one of the most unusual of judicial powers: the judge who was the object or butt of the allegedly contemptuous conduct becomes the prosecutor and then sits in judgment over the very defendant who is said to have just assailed the judicial dignity. That precise circumstance is condoned nowhere else in the law. For that reason, the power must be cautiously and sparingly used (citations omitted).”

Id. at 1274 (quoting Fabian v. State, 585 So.2d 1158, 1158 (Fla. 4th DCA 1991) (Farmer, J., dissenting)). The supreme court has reiterated that “it is critical that the exercise of this contempt power never be used by a judge in a fit of anger, in an arbitrary manner, or for the judge’s own sense of justice.” In re Inquiry Concerning Perry, 641 So.2d 366, 368 (Fla.1994). We interpret these admonitions to apply to the ultimate penalty imposed for contempt, as well as to the contempt adjudication itself.

In Grass v. State, 869 So.2d 770, 771 (Fla. 4th DCA 2004), we acknowledged “the problem inherent in punishing jurors.” In that case, a prospective juror asked to be excused from jury service because of business commitments. After the trial judge refused to excuse the juror, the juror abruptly changed her answers regarding her ability to be fair and unbiased, simply to avoid jury duty. The trial judge held the juror in direct contempt of court. Then, exercising remarkable restraint, the judge punished the juror by ordering her to write a letter of apology and read it the next day in open court to the other jurors. We affirmed the contempt judgment, stating that “[w]e have no hesitancy in upholding the trial judge’s handling in this case and commend her attention to detail and fairness in so doing.” Id.

In a case more factually similar to this case, People v. Campbell, 284 A.D.2d 173, 727 N.Y.S.2d 74 (N.Y.App.Div.2001), the court affirmed a judgment finding a prospective juror guilty of contempt for not disclosing the full extent of his criminal record. In that case, the trial court sentenced the defendant to a thirty-day prison term and a $500 fine.

As discussed above, the trial judge in this case properly found appellant guilty of direct criminal contempt for his conduct during jury selection. We thus affirm the judgment of contempt. Although appellant’s sentence of four months in jail is harsh under the circumstances, it falls within the limits prescribed by law. We therefore cannot disturb the sentence. Appellant’s request to review the sentence, based on mitigating circumstances, is more appropriately directed to the trial judge, who can, in her discretion, grant a timely motion to reduce the sentence following issuance of the mandate in this case. See Fla. R.Crim. P. 3.800(c); Geary, 139 So.2d at 892; see also Neering v. State, 141 So.2d 615, 617 (Fla. 1st DCA 1962) (reducing the sentence where the record did not indicate that the defendant fully appreciated the possible relation of his conduct to the administration of justice, and discussing “the conflict between two vital considerations — the need to preserve the integrity of the court system and the ideal of tempering justice with mercy when an offense is unwittingly committed”).

Affirmed.

STEVENSON, C.J., and GUNTHER, J., concur.

      . Appellant was on the venire for a criminal case, State v. Lucero, wherein the defendant was charged with possession of cocaine and possession of drug paraphernalia.

      . See, e.g., Ballengee v. State, 144 So.2d 68, 72 (Fla. 2d DCA 1962) (noting that even had it upheld the defendant's conviction for criminal contempt, it would have reversed the five-year sentence as excessive because "the severity of the five-year prison sentence was not justified by the gravity of the offense”); see also Thiede v. State, 189 So.2d 490, 492 (Fla. 2d DCA 1966) (reversing five-year prison contempt sentences for the defendants’ refusal to leave their jail cells and come to court as ordered because the gravity of the offense did not justify the severity of the sentence).

      . See Neering v. State, 141 So.2d 615, 617 (Fla. 1st DCA 1962) (reversing the defendant's one-year sentence for criminal contempt for contacting a prospective juror in a personal injury case and remanding it for imposition of a new sentence not to exceed six months because there was "no indication in the record that the defendant fully appreciated the possible relation of his conduct to the administration of justice”); see also Cassidy v. Cassidy, 181 So.2d 649, 649-50 (Fla. 3d DCA 1966) (agreeing with the trial court’s findings that the defendant made contemptuous statements in the trial judge’s presence, but reversing the six-month jail sentence as unduly severe because the "the statements may well be those of a person who was under great pressure and conflict and who was not fully cognizant of their impact” and the record did not indicate that the defendant fully appreciated the possible relation of his conduct to the administration of justice).

        .See Neering v. State, 141 So.2d 615, 616 (Fla. 1st DCA 1962); Thiede v. State, 189 So.2d 490 (Fla. 2nd DCA 1966); McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1962); Ballengee v. State, 144 So.2d 68 (Fla. 2nd DCA 1962); Cassidy v. Cassidy, 181 So.2d 649 (Fla. 3rd DCA 1966); Neering v. State, 141 So.2d 615 (Fla. 1st DCA 1962).


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    Robert RAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3207.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Robert Ray appeals his conviction and sentence on the charge of burglary of a dwelling. We reverse and remand for a new trial.

Ray was charged by information with burglary in that he did unlawfully enter or remain in a dwelling, or curtilage thereof, at the home of Justin Elkes, with the intent to commit a theft.

On September 21, 2004, Justin Elkes resided in Cooper City, Florida. On the evening of September 21, Elkes was in his back bedroom installing a ceiling fan. While installing the fan, he heard a noise emanating from the garage. The last time Elkes had been in the garage, which was approximately five minutes before he heard the noise, the garage light was on and the garage door was open. Upon hearing the noise, Elkes went into the garage to investigate. There, he found Ray inside the garage. Elkes observed that Ray appeared startled and intoxicated. Elkes made several requests for Ray to leave and Ray rambled unintelligibly about looking for food inside the garage. Ray finally left the garage, walked to the sidewalk, got on his bicycle and rode away.

Elkes walked to the sidewalk to make certain that Ray had left the neighborhood. When he did, he saw one of his tools, a portable circular saw, on the swale beside the sidewalk about three feet from where Ray’s bicycle had been parked. Elkes, who had not placed the saw on the swale, picked the tool up, placed it back inside the garage, and then contacted the Broward Sheriffs Office (BSO) concerning this suspicious activity. After reporting it to the BSO, Elkes drove around the neighborhood looking for Ray and spotted his bicycle inside the carport of a residence about six houses away from his home. The BSO deputy arrived about two or three minutes later and took Ray into custody. When the deputy searched Ray incident to his arrest, no property belonging to Elkes was found on his person.

Ray testified and explained that he had been homeless since 2001 and had been living at an outdoor camp located in the Hollywood, Florida area. On the day in question, Ray rode his bicycle to Cooper City, where he grew up, to look up old friends who still resided there. Ray stopped at an establishment known as Johnny’s Bar to visit with friends he knew would be patronizing the establishment. When he left the bar, he proceeded to his old neighborhood. As he passed Elkes’s house, Ray noticed the light on in the garage, stopped his bicycle and entered the garage. His purpose was to ask the home’s occupants if they could spare a few old cans of food. Once inside the garage, Ray attempted to get the attention of the homeowner by calling out “Hello.” Upon being confronted by Elkes, Ray asked if he had some food to spare, but eventually left the garage when Elkes refused and told him to leave.

Ray asserts that the trial court erred in giving nonstandard jury instructions on burglary that wrongly allowed a conviction based on an intent to commit an offense formed after entry. We agree.

During the jury charge conference, Ray’s counsel objected to the jury being instructed on burglary and using the “remaining in” language. The instruction as read to the jury was:

To prove the crime of burglary, the State must prove the following three elements beyond a reasonable doubt. First, Robert Ray entered or remained in a structure owned by or in.the possession of Justin Elkes.
Second, Robert Ray did not have the permission or consent of Justin Elkes or anyone authorized to act for him to enter or remain in the structure at the time.
Third, at the time of the entering or remaining in the structure, Robert Ray had a fully-formed, conscience [sic] intent to commit the offense of theft in that structure.

At the time of Ray’s offense, September 21, 2004, the burglary statute applicable to him read:

(b) For offenses committed after July 1, 2001, “burglary” means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or
2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:
a. Surreptitiously, with the intent to commit an offense therein;
b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or
c.To commit or attempt to commit a forcible felony, as defined in s. 776.08.

§ 810.02(l)(b), Fla. Stat. (2003). The Standard Jury Instruction in effect and applicable to the above-defined charge states:

13.1 BURGLARY

§ 810.02, Fla.Stat.

Give this statement of the elements if the charge is unlawful entry:

To prove the crime of Burglary, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) entered a [structure][conveyanee] owned by or in the possession of (person alleged).
2. (Defendant) did not have the permission or consent of (person alleged) or anyone authorized to act for [him][her] to enter the [structure] [conveyance] at that time.
3. At the time of entering the [structure][conveyance] (defendant) had a fully-formed, conscious intent to commit the offense of (crime alleged) in that [structure] [conveyance].

Give this statement of the elements if the charge is unlawfully remaining:

To prove the charge of Burglary, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) had permission or consent to enter a [structure][conveyance] owned by or in the possession of (person alleged).
2. (Defendant) after entering the [structure] [conveyance] remained therein
Give a, b, or c as applicable
a. surreptitiously and with the fully-formed conscious intent to commit the offense of (crime alleged).
b. after permission to remain had been withdrawn and with the fully-formed conscious intent to commit the offense of (crime alleged).
c. with the fully-formed conscious intent to commit or attempt to commit the offense of (forcible felony alleged).

Fla. Std. Jury Instr. (Crim.) 13.1 (2003).

In Delgado v. State, 776 So.2d 233 (Fla. 2000), the supreme court held that the “remaining in” language of the burglary statute applied only to situations where there was consensual entry and the “remaining in” is done surreptitiously. Id. at 240. After the supreme court rendered its decision in Delgado, the legislature passed section 810.015, Florida Statutes (2001), in which it stated that the decision in Delgado was contrary to the legislative intent and the decision and its progeny were nullified. Effective July 1, 2001, the legislature amended the burglary statute to read as stated above, which clarified the statute after Delgado. The supreme court amended the standard jury instruction to conform to the new statute in In re Standard Jury Instructions in Criminal, 850 So.2d 1272, 1280-81 (Fla.2003).

Over Ray’s objection, the trial court read the instruction in effect for the pre-amendment version of the burglary statute. It is not clear why the court ignored the new version of the instruction. The court did state, “In this case, neither apply as far as the examples because Mr. Ray is alleged to have entered, he had no permission at any time and the question is if it is surreptitious, he had no right to enter or remain in it.” Because it was clear that Ray did not have permission to enter the garage, there was no issue about his surreptitiously remaining in the garage. Therefore, only the first part of the new instruction was applicable. Instructing the jury about remaining in was inapplicable and could have misled the jury as to when Ray had to have formed the intent to commit a crime during the burglary. Under the factual scenario of this case, Ray could be convicted of burglary only if he entered the garage with the intent to commit an offense. The trial court’s erroneous inclusion of the “remaining in” language allowed the jury to convict Ray of burglary even if he did not enter the enclosure with the intent to commit an offense (i.e., forming the intent to commit theft after he entered).

Because we are reversing for a new trial, we address two evidentiary rulings Ray asserts to be erroneous.

First, Ray argues that the trial court abused its discretion in overruling Ray’s objection to speculative testimony concerning what Elkes surmised Ray would do after he left his garage and rode away on his bicycle. When asked by the prosecutor why he decided to look for Ray, Elkes testified over Ray’s objection, that “I figured if my garage was open he was in my garage, nobody watched him, he could go into somebody else’s garage.”

In addition to Ray’s argument that this was pure speculation, he also argues that this was tantamount to the improper admission of collateral crime evidence. We agree. “Evidence of collateral crimes, wrongs, or acts committed by the defendant is admissible if it is relevant to a material fact in issue; such evidence is not admissible where its sole relevance is to prove the character or propensity of the accused.” Czubak v. State, 570 So.2d 925, 928 (Fla.1990). In the instant case, although this testimony only speculates that Ray may be committing another crime, it also does not appear to be relevant to a material fact in issue on the charge against him. Ray was not charged with burglary of a second house. Why Elkes followed Ray is not relevant and the trial court abused its discretion in so finding.

Second, Ray asserts that the trial court abused its discretion in overruling Ray’s objection to the state’s impeachment of Ray’s testimony with his prior burglary convictions. We agree.

Before Ray testified, the state asked the court to take judicial notice of Ray’s eleven prior felony convictions. The trial court agreed and because statements made by Ray had been admitted through the testimony of the state’s witnesses, the jury was told of these convictions without identifying the felonies for which he stood convicted. Such evidence is admissible under section 90.806(1), Florida Statutes (2004), and “should be considered only for the purpose of assessing the defendant’s credibility of statements he made that were related by witnesses, and are not to be considered as proof of guilt for the charged offense.” Werley v. State, 814 So.2d 1159, 1162 (Fla. 1st DCA 2002). Thereafter, when Ray took the stand in his own defense, his counsel elicited the same admission, that Ray had eleven prior felony convictions. Generally, such evidence is admissible to attack the credibility of the witness. See § 90.610(1), Fla. Stat. (2004). During cross-examination by the state, the prosecutor, over objection, elicited that one of Ray’s prior felony convictions was a burglary.

In a criminal prosecution an opposing party cannot impeach the credibility of a witness or a defendant by eliciting testimony concerning the underlying crime of a prior felony conviction so long as the witness does not deny the convictions or fail to admit the correct number of convictions. Holmes v. State, 757 So.2d 620 (Fla. 3d DCA 2000); Livingston v. State, 682 So.2d 591 (Fla. 2d DCA 1996); Hicks v. State, 666 So.2d 1021 (Fla. 4th DCA 1996); Tampling v. State, 610 So.2d 100 (Fla. 1st DCA 1992).

The state argues that Ray opened the door by testifying that he did not think he was breaking the law by entering the garage without permission. The state asserts that Ray’s statement opened the door to further inquiry about the fact that he had been previously convicted of a burglary. The state does not cite any cases in support of this argument. Ray did not deny his eleven prior convictions. He testified only that he did not think he was breaking the law by going into the open garage without permission. In asking Ray about his prior conviction for burglary, the state went beyond what was permitted. The trial court erred in overruling Ray’s objection.

Because we are reversing and remanding for a new trial, we need not address Ray’s assertion that his sentence as a habitual felony offender violated his Sixth Amendment right or his Fourteenth Amendment right to due process.

Reversed and Remanded for a New Trial.

GUNTHER and MAY, JJ„ concur.


author: PER CURIAM.

text:
    Altereque L. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1281.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.

      Altereque L. Baker, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Altereque Baker appeals the denial of his rule 3.800(a) motion to correct an illegal sentence. Appellant argued in part that his sentence for aggravated assault with a firearm was illegal because it exceeded the statutory maximum for a third-degree felony.

In response to an order from this court, the state points out that at the plea hearing, the trial court orally sentenced appellant to the statutory maximum for this offense. The written sentence does not conform to the oral pronouncement.

The state suggests appellant’s only remedy is to file a rule 3.850 motion because this court has held that this type of sentencing error cannot be raised in a rule 3.800(a) motion. Campbell v. State, 718 So.2d 886 (Fla. 4th DCA 1998). But, unless it is corrected, the written sentence is an illegal sentence that exceeds the statutory maximum. Even if this error could not be corrected in a rule 3.800(a) motion, appellant’s motion could be treated as a rule 3.850 motion because it was under oath and filed within two years after his convictions and sentences became final. See Rinderer v. State, 857 So.2d 955 (Fla. 4th DCA 2003).

Accordingly, we reverse and remand for the trial court to correct the written sentence on count seven so that it conforms to the sentence orally imposed. The denial of appellant’s remaining claim is affirmed.

GUNTHER, FARMER and SHAHOOD, JJ., concur.


text:
    Vincent RUOTOLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1434.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.
    Vincent Ruotolo, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant filed a motion for jail credit under rule 3.800(a), claiming an entitlement to an additional 193 days. Fla. R.Crim. P. 3.800(a). The motion specifies dates for two periods of time he spent in jail before his August 2005 sentencing. He claimed that he is entitled to 338 days after his initial arrest before being released on bond. He then claims an additional 135 days after being re-arrested before his sentencing. The trial court gave him credit at sentencing for only 280 days.

His rule 3.800(a) motion was denied because a notation on the disposition sheet stated, “defendant agrees to time served.” We hold that this document fails to show conclusively that he was not entitled to the days claimed in his motion. “Defendant agrees to time served” may reasonably convey that defendant has agreed only to a time served sentence, not that he agreed that 280 days is the correct number of days. The trial court shall resolve this patent conflict. As in Robinson v. State, 827 So.2d 345, 345-46 (Fla. 4th DCA 2002), our reversal does not preclude the trial court from ultimately denying relief on remand if it finds that he voluntarily and specifically waived the jail credit now being claimed.

Reversed.

POLEN, FARMER and MAY, JJ„ concur.


text:
    Grace BERGMAN, Appellant, v. Sandra KAPLAN, Appellee.
    No. 4D06-1356.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.
    James A. Herb and Jay L. Kauffman of Herb & Kauffman, P.A., Boca Raton, for appellant.
    Lucinda A. Hofmann of Shook, Hardy & Bacon, L.L.P., Miami, for appellee.
   PER CURIAM.

Upon appellee’s concession of error, the order awarding attorney’s fees is reversed upon the authority of Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla. 2006).

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


author: ALTENBERND, Judge.

text:
    Terrance SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3566.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.
    James Marion Moorman, Public Defender, and Lanitra Sanchez-Moore, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Terrance Smith appeals his judgments and sentences for grand theft auto, obstructing an officer without violence, and driving without a valid driver’s license. His appellate attorney has filed an Anders brief. We have reviewed the record and have found no arguable issue upon which Mr. Smith might be entitled to relief. Accordingly, we affirm. In so doing, however, we describe the plea negotiations, the nature of the plea agreement, and the sentences ultimately imposed because the procedures used in this case seem questionable to this court.

Mr. Smith was arrested on August 2, 2004, for these three offenses, which occurred on that same date. At that time, he was a legal adult, having turned eighteen three months earlier. He filed an affidavit indicating that he had no income, no assets, and that he lived with his mother. He was appointed a public defender, and he did not post bond.

On March 10, 2005, at the beginning of trial, Mr. Smith signed a negotiated plea agreement. At the time he entered into this agreement, the lawyers and the trial court knew that he had a juvenile record including a prior grand theft auto. However, his scoresheet under the Criminal Punishment Code contained only 29.4 points and, thus, was well within the range that permitted a non-state prison sanction. Nevertheless, the State was seeking a sentence of five years’ imprisonment.

Apparently, Mr. Smith damaged the car that he stole. The trial court decided that the victim was due $2847.17 as restitution. Following negotiations that are not well developed in our record, Mr. Smith signed the negotiated plea form in which he pleaded guilty in exchange for a sentence of eighteen months’ incarceration, “pending payment of restitution of $2847.17.” At the beginning of the plea hearing, the judge stated: “And you’ve talked to the folks, and they’re prepared to pay the 2,800, right?” Defense counsel answered in the affirmative, and the judge replied: “And what are we setting? How much time do they need to get that to the victim or get that paid?” Defense counsel indicated that the amount could be paid by April 14, 2005, about a month later. As a result, the trial court announced that sentencing would occur on April 14 and that Mr. Smith would receive a sentence of eighteen months’ incarceration if restitution was paid by that time. It is clear that the “they” who was expected to pay restitution was Mr. Smith’s mother. The court then conducted the usual inquiry with Mr. Smith to determine that he understood the plea and wished to enter into it.

When April 14 arrived, Mr. Smith’s mother had paid $1000 but had been unable to pay the full amount. After some discussions, the trial court decided to give Mr. Smith’s mother until June 22 to pay the remainder of the restitution.

On June 22, the court reconvened for sentencing. At that time, it was confirmed that Mr. Smith’s mother had still paid only $1000. The trial court decided that she had had enough time to make the payment. Accordingly, it conducted a sentencing hearing, sentencing Mr. Smith to three years’ incarceration for the grand theft auto and time served for each of the misdemeanors. The trial court stated it would not impose the full five-year sentence because $1000 of the restitution had been paid. Mr. Smith received credit for all time that he had already served. There were no objections to this procedure or to the sentences.

This procedure troubles us in two respects. First, it may have been implicit in the negotiations that the trial court would be free to impose any lawful sentence if Mr. Smith’s mother did not pay restitution, but that option is not contained in the written negotiated plea and was not orally announced or explained during the plea hearing. It is unclear to us whether Mr. Smith’s counsel should have asked to withdraw the plea when Mr. Smith’s mother could not pay his restitution. This issue is not preserved for review at this time, and it is entirely possible that Mr. Smith would prefer to serve this three-year sentence rather than risk the uncertainties associated with a withdrawal of his plea.

More important, we are troubled by a plea agreement conditioned upon the payment of restitution by a relative who is not otherwise legally liable to pay restitution. It is obvious that everyone in the courtroom understood that Mr. Smith, unemployed and detained in the county jail, could not pay the $2847.17 that was a condition of his plea. Thus, the trial court placed the burden on his mother to obtain this money to protect her adult child.

Nothing in this record suggests that the defendant’s mother did anything that would cause her to owe $2847.17. Cf. § 806.13(6)(c), Fla. Stat. (2005) (parents may be liable for criminal mischief of a minor). Good mothers will do almost anything to protect their children, and it is entirely understandable that this woman would do her best to find money to help her son. It is unavoidable that this type of plea agreement leaves the mother believing that her son is spending eighteen months in prison because she failed in her efforts to raise the final $1847.17 owed to the victim. There is something morally repugnant about such a plea agreement.

We fully understand that the need for restitution can be a basis for a downward departure sentence. See § 921.0026(2)(e), Fla. Stat. (2004); see also Banks v. State, 732 So.2d 1065 (Fla.1999). In this case, however, the need for restitution was not used as a basis for a downward departure; nonpayment of restitution was used as a basis for an increase in the sentence. We also understand that restitution can be a condition of probation and willful nonpayment of restitution can be a violation of probation that warrants incarceration. See § 948.032, Fla. Stat. (2004). In this case, there was no willful nonpayment by Mr. Smith and no evidence suggesting willful nonpayment by his mother. We do not have debtors’ prisons in this country, and we question the wisdom of plea agreements that permit longer prison terms for poor people whose relatives have failed to raise the money needed to buy their freedom.

In this case, if these issues entitle Mr. Smith to any relief, it must be by postcon-viction motion.

Affirmed.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . It appears that the trial court may have taken evidence to reach this decision, but no transcript of such a hearing is contained in our record.


author: SALCINES, Judge.

text:
    Jeffrey HUMBERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3739.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Jeffrey Humbert appeals an order revoking his probation. We reverse and remand for further proceedings.

On June 4, 2001, Humbert was adjudicated guilty on three counts of second-degree felony robbery in trial court case number 97-382F and sentences were imposed. Humbert’s sentences included imprisonment followed by probation. Between March and June of 2002 three affidavits of violations were filed in that case, the last of which was the second amended affidavit of violation of probation.

In the second amended affidavit, the affiant averred that Humbert violated a special condition of probation (condition fourteen) by being discharged from a required treatment program. The affiant also averred four separate violations of condition five — a condition which prohibited a violation of law while on probation. Included among those was an allegation that Humbert committed battery on an inmate in county jail for which disposition was pending in trial court case number 02-1320F.

A probation revocation hearing was conducted on July 23, 2003, before a judge who has since retired. By the time of that hearing, a jury had found Humbert guilty of the battery on an inmate in county jail charged in case number 02-1320F. At the conclusion of the revocation hearing, the judge orally pronounced “[b]y virtue of the jury verdict in the case number 02-1320F, I will find that the defendant has violated his probation in case 97-382F.” However, for reasons not apparent on the face of the record, the written revocation order reflected that the revocation was based upon Humbert’s violations of condition five and special condition fourteen.

During the pendency of this appeal, Humbert’s counsel filed a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The motion asserted, in part, that the revocation order erroneously indicated Hum-bert was found in violation of special condition fourteen and imprecisely failed to note that only one violation of condition five was proven. The motion was considered by a successor judge. The motion was granted in regard to the correction of the revocation order. An amended order of revocation of probation was filed in case number 97-382F, and consistent with the original judge’s oral pronouncement, the amended order indicated Humbert’s probation was revoked based upon a single violation of condition five.

This court subsequently reversed Hum-bert’s conviction in case number 02-1320F due to fundamental error arising from the jury instructions, and we remanded for a new trial. Humbert v. State, 922 So.2d 997 (Fla. 2d DCA2005).

In this appeal both parties correctly agree the revocation order must be reversed and this matter remanded because the trial court revoked Humbert’s probation based exclusively on a conviction which has since been reversed. We recognize that a criminal violation must be proven beyond a reasonable doubt while a probation violation need only be proven by a preponderance of the evidence, Morris v. State, 727 So.2d 975, 977 (Fla. 5th DCA 1999), and the ultimate facts necessary to convict for a criminal offense and the ultimate facts necessary to establish a violation of probation are not the same. Russ v. State, 313 So.2d 758, 760 (Fla.1975). Nonetheless, “ ‘if a revocation is based solely on a conviction and that conviction is subsequently reversed, the revocation must also be reversed.’ ” Stevens v. State, 409 So.2d 1051, 1052 (Fla.1982) (quoting with approval Stevens v. State, 397 So.2d 398, 398 (Fla. 5th DCA 1981)). In the record before this court, it is clear that the revocation of Humbert’s probation was based entirely on a conviction which has since been reversed. It is equally clear that the judge, at the revocation hearing, did not determine whether Humbert’s violation of probation had been otherwise proven by a preponderance of the evidence without regard to the jury’s verdict. Thus, the revocation order cannot be sustained.

The State argues that on remand the trial court can determine whether the revocation is supported by a preponderance of the evidence based on a review of the trial transcript in case number 02-1320F. Humbert, on the other hand, argues that the trial court should hold a new revocation hearing rather than merely reviewing the record to make the necessary determination.

Any decision regarding the basis supporting a revocation of Humbert’s probation in all likelihood will be made by a successor judge to the judge who presided over the trial and the revocation hearing. Given all the circumstances involved in the present case, the trial court’s decision should not be made without conducting a new probation revocation hearing on remand. See Judd v. State, 402 So.2d 1279 (Fla. 4th DCA 1981) (reversing and remanding for new trial and new revocation hearing as it was clear that trial court’s basis for revocation rested exclusively on conviction and overriding concerns for justice mandated reversal).

Of course, the fact that Humbert’s conviction in case number 02-1320F was reversed does not mean that his probation cannot be revoked based on the same facts. See Russ, 313 So.2d at 760 (holding it does not violate double jeopardy to revoke probation even though defendant was acquitted of criminal charges based on same facts); Morris, 727 So.2d at 977 (holding acquittal in criminal case does not preclude determination that probation violation occurred based on same conduct because criminal case must be proven beyond reasonable doubt and probation violation need only be proven by preponderance of evidence). Indeed, the State, at the revocation hearing on remand, is not precluded from attempting to prove Humbert’s violations based on the same circumstances as long as the period of supervision has not expired. See Sharpston v. State, 895 So.2d 1225, 1226 (Fla. 2d DCA 2005) (reversing revocation in which the violation was based solely on defendant’s arrest); Chavous v. State, 597 So.2d 943 (Fla. 2d DCA 1992) (reversing revocation in which the violation was demonstrated solely by hearsay).

Accordingly, we reverse the revocation order and remand for further proceedings.

Reversed and remanded as directed.

NORTHCUTT and LaROSE, JJ., Concur.

      . The judge retired from the bench on January 1, 2004.

        . The judge who had presided over the trial in case number 02-1320F also presided over the revocation hearing in case number 97-382F.

      . The judge who presided over both the revocation hearing and the trial might have found it unnecessary to determine whether the State had established that Humbert violated his probation under the less stringent standard required to demonstrate a violation of probation. The judge did not have the benefit of the line of cases which have found that fundamental error occurred as a result of the jury instruction on self-defense which compelled our reversal of trial court case number 02-1320F in Humbert, 922 So.2d 997. It is likely that the judge did not anticipate a reversal in that case.


text:
    Elijah BADGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-61.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Elijah Badger appeals a final order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand claims two and four for further proceedings.

In claim two appellant argues that trial counsel was ineffective for failing to investigate and call two witnesses at trial. Appellant was convicted of attempted burglary of a conveyance with a battery, possession of cocaine and attempted strong arm robbery. Appellant alleges that the two witnesses would have testified that Badger did not enter the undercover police officer’s vehicle willingly but instead the undercover police officer grabbed the defendant and held him at the vehicle until backup arrived.

The state argued that this claim is without merit as the testimony alleged was merely cumulative. We find that the claim sufficiently alleged the identity of the witnesses, their testimony, that the witnesses were available to testify at the trial, and how this lack of testimony prejudiced the outcome of the verdict. Nelson v. State, 875 So.2d 579 (Fla.2004). Furthermore, this alleged testimony would not be cumulative as the jury only heard testimony from the undercover police officer that appellant intentionally entered the vehicle and other witnesses who corroborated the police officer’s story. Upon remand the trial court should conduct an evidentiary hearing to determine whether counsel did fail to call these witnesses or whether the failure was due to trial strategy, or should attach records that conclusively refute this claim.

In his fourth claim appellant alleged trial counsel failed to object to the jury instruction on attempted burglary of a conveyance with a battery because the evidence only showed a completed burglary. We find that pursuant to Richardson v. State, 922 So.2d 331 (Fla. 4th DCA 2006), and Pepitone v. State, 846 So.2d 640 (Fla. 2d DCA 2003), this claim has merit and reverse and remand for an evidentiary hearing or the attachment of records that conclusively refute this claim. We affirm as to all other claims.

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


text:
    Ronald DOOLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3081.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Ronald Dooley was convicted of failing to appear at sentencing. Dooley argues that because he was never charged with the offense, his conviction for the same was fundamental error. As we stated in Scala v. State, 770 So.2d 732, 732-33 (Fla. 4th DCA 2000), “[c]onviction for a charge not made by information or indictment is a denial of due process, and the complete failure to charge a crime is a defect that can be raised at any time, including on appeal.” We accept the State’s concession of error and reverse and remand with instructions that the judgment of conviction and sentence be vacated accordingly.

STEVENSON, C.J., STONE, J., and BATEMAN, III, THOMAS HOWELL, Associate Judge, concur.


text:
    Gerald RENWICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1570.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

During the pendency of Gerald Ren-wick’s appeal of his convictions for battery and battery on a law enforcement officer, Renwick died in the custody of the Department of Corrections. We dismiss the appeal under the authority of State v. Clements, 668 So.2d 980 (Fla.1996), because Renwick’s representative has not shown good cause for the appeal to proceed. In the present case, the court did not impose a fine as part of the sentence, and the state has represented that it will not file a claim for court costs against the indigent defendant’s estate. Furthermore, the point on appeal in this case concerned the sufficiency of the evidence against the defendant. A decision on the merits in this case would have limited precedential value and would not serve to clarify any issue of particular significance in future cases.

Dismissed.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    ALPHA 2001, INC./OMEGA 2011, L.L.C., Marvin E. Marshall, individually, and Directors, Marvin E. Marshall, Dr. Ray McMurty, and Dan Vinovich, Appellants, v. Merrill A. BOOKSTEIN, Appellee.
    No. 4D05-2394.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.

      Dirán V. Seropian of Edna L. Caruso, P.A., West Palm Beach, for appellants.
    Daniel S. Rosenbaum and Laurel R. Wiley of Becker & Poliakoff, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the circuit court’s finding of civil contempt and its award of attorney’s fees. The court had before it sufficient evidence upon which to base its finding that appellants willfully disobeyed multiple court orders. Further, “[i]f a party is found in contempt, it is proper for the court to compensate the injured party by assessing attorney’s fees for the contempt proceeding.” Levine v. Keaster, 862 So.2d 876 (Fla. 4th DCA 2003).

We reverse only two aspects of the circuit court’s omnibus order and remand for an evidentiary hearing concerning those two issues. First, the court shall determine the number of shares that is equivalent to 6 1/2 percent of the issued and outstanding Alpha 2001 stock as of March 26, 2001. Second, the court shall determine, as of the date the merger became effective, the number of shares of Omega 2011, L.L.C. stock that is equivalent to the number of shares of Alpha 2001 stock determined under issue one. See §§ 607.1106 — .1107, Fla. Stat. (2004). The trial court has jurisdiction to order Omega 2011 to issue the requisite number of shares.

Affirmed in part, reversed in part, and remanded.

WARNER, KLEIN and GROSS, JJ., concur.


author: FULMER, Chief Judge.

text:
    ARCHITECTURAL NETWORK, INC., a Florida corporation; David Marshall Corban, individually, Appellants, v. GULF BAY LAND HOLDINGS II, LTD., a Florida limited partnership d/b/a Parcel C Joint Venture, by its General Partner, Gulf Bay Land Holdings II, Inc.; Steven Feller, P.E., Inc., a Florida corporation; and Steven M. Feller, individually, Appellees.
    No. 2D05-4244.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.

      Jeffrey D. Fridkin of Grant, Fridkin; Pearson, Atahn & Crown, P.A., Naples, for Appellants.
    Steven R. Schooley of Holland & Knight, LLP, Orlando, and Ricardo A. Reyes of Tobin & Reyes, P.A., Boca Raton, co-counsel for Appellee, Gulf Bay Land Holdings II, Ltd.
    No appearance for Appellees, Steven Feller, P.E., Inc. and Steven M. Feller.
   FULMER, Chief Judge.

Architectural Network, Inc. (ANI), and David Marshall Corban challenge the trial court’s “Order on Motion to Enforce Settlement Agreement and Entry of Final Judgment.” Because the trial court erred in denying ANI and Corban’s request for an evidentiary hearing before ruling on the validity of the purported settlement agreement, we reverse and remand for further proceedings.

ANI and Corban argue that the trial court was required to conduct an eviden-tiary hearing on them claim that their counsel did not have authority to settle the suit on their behalf. Gulf Bay Land Holdings II, Ltd., contends that there are no issues on appeal requiring interpretation of the settlement agreement or weighing disputed evidence. It claims that the trial court’s order is properly based on undisputed facts.

A party seeking to enforce a settlement agreement bears the burden of showing that an attorney for the opposing party had the unequivocal authority to settle on the client’s behalf. Fivecoat v. Publix Super Markets, Inc., 928 So.2d 402, 403 (Fla. 1st DCA 2006); Sharick v. Se. Univ. of the Health Sciences, Inc., 891 So.2d 562, 565 (Fla. 3d DCA 2004); Weitzman v. Bergman, 555 So.2d 448, 449-50 (Fla. 4th DCA 1990); Jorgensen v. Grand Union Co., 490 So.2d 214, 215 (Fla. 4th DCA 1986); Vantage Broadcasting Co. v. WINT Radio, Inc., 476 So.2d 796, 798 (Fla. 1st DCA 1985).

Contrary to Gulf Bay’s claim, the transcript of the hearing before the trial court on Gulf Bay’s motion to enforce the settlement agreement does not demonstrate that the facts were undisputed. It is clear from the argument of counsel at the hearing that the parties disputed whether a settlement had been reached. The hearing was brief and consisted entirely of argument by counsel. The purported written settlement agreement that both sides discuss on appeal was not entered into evidence. Therefore, the factual findings recited in the trial court’s order lack record support because there was no evidence taken below.

Whether the attorney for ANI and Cor-ban had authority to settle on his clients’ behalf requires evidentiary development before the trial court can order enforeement of the purported agreement. We, therefore, remand for an evidentiary hearing on the issue of whether the parties had reached a settlement.

Reversed and remanded for further proceedings.

NORTHCUTT, J., and KHOUZAM, NELLY N., Associate Judge, Concur.

      . ANI and Corban attempt to rely on affidavits submitted in conjunction with their motion for rehearing. Because they filed their notice of appeal before the motion for rehearing was ruled upon by the trial court, we do not rely on the affidavits.


text:
    James Calvin INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5095.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

James Calvin Ingram appeals his adjudication for contempt of court and his sentence of six months’ incarceration in the Polk County Jail. The State concedes error.

A jury trial witness subpoena was issued for Mr. Ingram. It apparently was served at his home on his mother in August 2005. Mr. Ingram did not appear for the trial as ordered. The State petitioned for a rule to show cause, asking the trial court to require Mr. Ingram to appear and explain why he should not be held in contempt. The petition made no reference to criminal contempt.

Apparently, the trial court issued a rule to show cause, although no such document is in our record and no proof of its service on Mr. Ingram appears in our record. Mr. Ingram appeared for the hearing on September 23, 2005. As permitted by Florida Rule of Criminal Procedure 3.840(d), the hearing and all questioning was conducted by Judge Roger A. Alcott. Prior to placing Mr. Ingram under oath, Judge Alcott determined from Mr. Ingram that he lived with his mother and that she had received the subpoena. The judge then explained to Mr. Ingram, “the burden is on you to show” why “you shouldn’t be held in contempt.” The judge then placed Mr. Ingram under oath. Mr. Ingram explained that he had attended a deposition in the case and had been told that he would be notified if he was needed for trial. Mr. Ingram claimed he had not received further notice to appear for the trial and did not think he needed to attend.

Thereafter, the following colloquy took place:

THE COURT: Okay, Mr. Molloy, anything?
ASSISTANT STATE ATTORNEY MOLLOY [who was not sworn]: During that deposition I asked him if he was going to show up he said, “he wasn’t' — • wasn’t sure.” I said, “you know the Judge could put you in jail for six months if you don’t show up.” He goes “well, if I decide not to I’ll suffer the consequences.”

The judge then asked Mr. Ingram if he “remember[ed] that conversation,” and Mr. Ingram agreed that he did. He further explained that when he had talked to a detective, he had told the detective that he did not want to have anything to do with the case, and the detective told Mr. Ingram that he would not be bothered with any of it.

The judge informed Mr. Ingram that he could “take that up with the detective” after he got out of jail. He found Mr. Ingram in criminal contempt, adjudicated him guilty, and sentenced him to six months in jail. When Mr. Ingram asked to be able to return his father’s car before going to jail, the judge said: “Nope. You may begin serving your sentence right now.”

We note that the initial transcript received by this court from the Electronic Court Reporter for the Tenth Judicial Circuit claimed that Mr. Ingram was represented by counsel during this hearing. A corrected transcript reflected that he had no attorney.

Without discussing all of the numerous issues that might warrant a reversal in this case, we note that rule 3.840(d) clearly states that “the defendant is entitled to be represented by counsel.” It is undisputed that Mr. Ingram was never advised of, and did not knowingly waive, this right. The State concedes this error.

Accordingly, we reverse the order of criminal contempt.

Reversed.

CASANUEVA and STRINGER, JJ., Concur.