text:
    Najib MALIK, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2565.
    District Court of Appeal of Florida, Fifth District.
    Dec. 26, 2007.
    Najib Malik, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Parker v. State, 611 So.2d 1224 (Fla.1992), cert. denied, 526 U.S. 1101, 119 S.Ct. 1580, 143 L.Ed.2d 675 (1999).

PLEUS, MONACO and EVANDER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Maurice L. GILBERT, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3369.
    District Court of Appeal of Florida, Fifth District.
    Dec. 26, 2007.
    Maurice L. Gilbert, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See McDonald v. State, 957 So.2d 605 (Fla.2007).

TORPY, LAWSON and EVANDER, JJ., concur.


text:
    Ricardo Luis LUGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2189.
    District Court of Appeal of Florida, Fifth District.
    Dec. 26, 2007.
    James S. Purdy, Public Defender and Robert Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Ricardo L. Lugo, Perry, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Tanzi v. State, 964 So.2d 106 (Fla.2007).

THOMPSON, ORFINGER and MONACO, JJ., concur.


text:
    Robert L. EMMANS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-231.
    District Court of Appeal of Florida, Fifth District.
    Dec. 26, 2007.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Westerheide v. State, 831 So.2d 93 (Fla.2002); Masters v. State, 958 So.2d 973 (Fla. 5th DCA 2007), rev. denied, 966 So.2d 967 (Fla. Aug.31, 2007).

SAWAYA, TORPY and EVANDER, JJ., concur.


author: EVANDER, J.

text:
    STATE of Florida, Appellant, v. Curtis Lamont TULLIS, Appellee.
    No. 5D07-1359.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellee.
   EVANDER, J.

After a traffic stop, Tullís was found to be in possession of cocaine, cannabis, and drug paraphernalia. The trial court granted Tullís’ motion to suppress, finding that the traffic stop was illegal. We reverse.

The facts surrounding the stop of Tullis’ vehicle were largely uncontroverted. Tul-lis was operating a motor vehicle with a temporary tag beneath a tinted license plate cover. The arresting officer testified that he was approximately thirty feet behind Tullis’ vehicle and that the temporary tag was “indistinguishable” because of the tinted cover. The officer activated his emergency fights and Tullis eventually pulled over into a parking lot. The officer exited his patrol car and approached Tul-lís’ vehicle. According to the officer, the tag was still “indistinguishable” at a distance of four to five feet. Specifically, the officer testified:

I could see the white paper from the tag and I could see dark, what appeared to be lettering. I could not distinguish the numbers and letters.

As soon as the officer walked up to the driver’s side window, he smelled the odor of burnt cannabis coming from the vehicle. Cocaine, cannabis, and drug paraphernalia were subsequently found on Tullis.

Tullis contended that section 320.131(4), Florida Statutes (2006), does not require a temporary tag to be legible, only that it be “clearly visible.” Thus, Tullis argued, the arresting officer had no basis to detain him because the tag was “clearly visible” to the officer prior to the stop. The trial court agreed with Tullis.

Section 320.131(4), Florida Statutes (2006), provides that temporary tags shall be “clearly visible from the rear of the vehicle.” We find that where the preprint-ed identification numbers and letters on a temporary tag are illegible from five feet away, because of a tinted license plate cover, the tag is not “clearly visible.” Sands v. State, 753 So.2d 630 (Fla. 5th DCA 2000). Because the officer had probable cause to believe that Tullis had violated section 320.131(4), the officer was authorized to stop Tullis’ vehicle. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

Tullis argues that because section 320.131(4) does not expressly state that a temporary tag has to be legible, it is irrelevant whether the officer could read the tag from five feet away. We reject Tullis’ proposed construction of the statute. To accept Tullis’ argument would mean that a motorist could drive with a “visible,” but illegible, expired or unassigned temporary tag with relative impunity because an officer would lack the authority to detain the motorist to determine if the tag was valid. A court should endeavor to construe a statute in a manner which would not lead to absurd results that were obviously not intended by the legislature. Maddox v. State, 923 So.2d 442, 446 (Fla.2006). Furthermore, to construe the statute as proposed by the defendant would not give effect to the plain meaning of the words “clearly visible.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984).

We also find Tullis’ reliance on State v. Diaz, 850 So.2d 435 (Fla.), cert. denied, 540 U.S. 1075, 124 S.Ct. 936, 157 L.Ed.2d 745 (2003), to be misplaced. In Diaz, the officer stopped the defendant because the expiration date on the defendant’s temporary tag was not legible from the officer’s motor vehicle. As the officer approached the defendant’s vehicle, he was able to read the expiration date on the defendant’s temporary tag and was “totally satisfied” that the tag was valid. Id. at 437. Notwithstanding his determination that the temporary tag was valid, the officer requested additional information from the defendant which ultimately led to the charge against the defendant of driving with a suspended license. The Florida Supreme Court held that it was unlawful for the officer to continue to detain the defendant once the officer had confirmed the validity of the tag. The Diaz court did not, however, hold that the initial stop of the defendant was unlawful. The majority opinion recites that the court assumed, without expressly holding, that the initial stop was lawful. Id. at 437. The three justices who concluded that the initial stop was unlawful did so only after observing that the case involved an illegible expiration date, not an illegible tag.

The officer’s inability to read the handwritten expiration date on a properly issued, properly displayed and otherwise legible temporary tag did not establish a valid basis for a suspected violation of the temporary tag requirements.... To construe section 320.131(4) as requiring that a law enforcement officer be able to read the handwritten expiration date as well as the larger, preprinted identification numbers and letters on a temporary tag would mean that almost every motorist driving a vehicle with a temporary tag would be subject to police detention.

Id. at 440-41 (Pariente, J., specially concurring) (emphasis added). Thus, a close reading of Diaz reveals that not a single justice expressed the view that a police officer lacked the authority to stop a vehicle where the preprinted identification numbers and letters on the vehicle’s temporary tag were illegible.

We also observe that the Diaz court found it significant that the alleged illegibility of the expiration date was caused by the State, not by the defendant. The court stated that to uphold the validity of the defendant’s continued detention:

[W]ould permit law enforcement officers to randomly stop any and all vehicles having a temporary license plate designed and created by the State and conduct a further examination and interrogation of the driver, and later justify the stop by simply claiming the tag, a product created by the State, was unreadable.

Id. at 438. Here, it was Tullís’ use of a tinted license plate cover which rendered the entire tag, not just the expiration date, illegible. Tullís should not be heard to complain where it was his own actions that prevented the officer from being able to confirm the validity of the temporary tag without having to first detain Tullís.

Finally, even if the officer had been able to read the preprinted identification numbers and letters on Tullís’ tag after initially stopping him, the search of Tullís would still have been lawful. In Diaz, the court stated that the officer could lawfully have made personal contact with Diaz to inform him of the reason for the stop.

Having verified the total validity of Mr. Diaz’s temporary tag, the sheriffs deputy could lawfully make personal contact with Mr. Diaz only to explain to him the reason for the initial stop.

Id. at 440. If the officer in the present case had approached Tullís solely for the purpose of informing Tullís of the reason for the stop, the officer still would have detected the odor of cannabis emanating from Tullís’ car. The officer would then have had probable cause to search Tullis and his vehicle. See Blake v. State, 939 So.2d 192, 197 (Fla. 5th DCA 2006); State v. T.P., 835 So.2d 1277, 1279 (Fla. 4th DCA 2003).

The trial court erred in granting Tullís’ motion to suppress.

REVERSED and REMANDED.

PLEUS and MONACO, JJ., concur.

      . Section 320.131(4) provides:
      Temporary tags shall be conspicuously displayed in the rear license plate bracket or attached to the inside of the rear window in an upright position so as to be clearly visible from the rear of the vehicle. On vehicles requiring front display of license plates, temporary tags shall be displayed on the front of the vehicle in the location where the metal license plate would normally be displayed.


text:
    Edward C. REDMOND, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-173.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Redmond was sentenced to five years incarceration followed by ten years of drug offender probation after being convicted on a delivery of cocaine charge. We reject Redmond’s claim that his sentence was the product of judicial vindictiveness.

The fact that the trial judge imposed a harsher sentence after trial than had been offered by the State (and made known to the judge) during pre-trial plea negotiations does not create a presumption of vindictiveness. Graff v. State, 843 So.2d 1012 (Fla. 5th DCA 2003). Here, the trial judge did not initiate or engage in plea negotiations with Redmond, nor did the trial judge imply that a harsher sentence would result if Redmond exercised his right to a jury trial. Rather, the trial judge simply gave Redmond the option to proceed to trial or to plead to the court. The trial judge was not required to give the parties additional time to conclude their plea negotiations, particularly where jury selection was set to begin.

We do agree, however, that the trial court erred by placing Redmond on ten years drug offender probation for the offense of the delivery of cocaine. Section 948.20, Florida Statutes (2005), authorizes drug offender probation for violations of section 893.13(2)(a) or (6)(a), which prohibit the purchase or possession of certain controlled substances. The trial court was not authorized to impose drug offender probation for delivery of cocaine. State v. Roper, 915 So.2d 622 (Fla. 5th DCA 2005); see also Anderson v. State, 941 So.2d 446 (Fla. 4th DCA 2006). On remand, the trial court may resentence Redmond to regular probation. State v. DeMille, 890 So.2d 454 (Fla. 2d DCA 2004). The trial court may also impose such special conditions as it deems appropriate; provided that they are reasonably related to the offense and promote the rehabilitation of the defendant or the protection of the public. See Grubbs v. State, 373 So.2d 905 (Fla.1979); Cassamassima v. State, 657 So.2d 906 (Fla. 5th DCA 1995).

REVERSED and REMANDED for Re-sentencing.

PLEUS and MONACO, JJ., concur.


author: ALTENBERND, Judge.

text:
    Norman GASKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5348.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2007.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Norman Gaskins appeals an order dismissing his petition for habeas corpus, which he filed in the sentencing court and not in the court with jurisdiction over his place of confinement. The circuit court dismissed the petition as an improper vehicle for raising issues that could have been raised on direct appeal or through postcon-viction proceedings.

The circuit court should have treated the petition as a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. See Valdez-Garcia v. State, 965 So.2d 318, 319 (Fla. 2d DCA 2007). We affirm because, reviewed as a motion for postconviction relief, the pleading is untimely because Mr. Gaskins filed it more than two years after the conviction became final. He did not allege any exception to the timeliness requirement for postconviction motions. See Green v. State, 765 So.2d 825 (Fla. 2d DCA 2000).

Affirmed.

STRINGER, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: FULMER, Judge.

text:
    Dianna L. AKRIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2610.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2007.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Dianna Akridge appeals her convictions for possession of cocaine, possession of drug paraphernalia, and giving false identification to a law enforcement officer. Akridge raises four issues in this appeal. We find merit only in her contention that the trial court erred in ruling that identity would not be an issue in the case, thus prohibiting the State from presenting evidence of the accused’s identity.

A jury trial commenced on May 8, 2006, at which time the jury was selected and sworn, and the trial was continued until May 10. Akridge did not appear on May 10, but the trial continued in her absence. In ruling that the trial would continue despite Akridge’s absence, the court also ruled that identity could not be raised as an issue because Akridge “waived this particular defense through nonattendance.” During the presentation of its case, the State sought guidance from the court regarding the questioning of its witness on the issue of Akridge’s identity. The court reiterated that identity was not an issue, and it declared that the State would risk a mistrial by eliciting identification testimony and that the defense attorney would risk disbarment if he suggested that the State failed to identify the suspect.

The burden is upon the State to prove beyond a reasonable doubt all of the elements of the alleged crime including the identity of the defendant. See State v. Freeman, 380 So.2d 1288 (Fla.1980) (rejecting claim that a separate instruction on identity and the State’s burden of proof thereon should have been given where standard instruction clearly explains State’s burden to prove identity). Here, consistent with the standard instructions, the trial court instructed the jury that the State had the burden of proving the defendant’s identity:

To overcome a defendant’s presumption of innocence, the State always has the burden to prove that the crime or crimes being charged were, in fact, committed and that the defendant is the person who committed the crime. The defendant is never required to present evidence nor prove anything.

Despite giving this instruction, the trial court deprived the parties of the opportunity to prove or challenge at trial that Dianna Akridge is the person who committed the crimes. Thus, the jury was deprived of necessary evidence tending to prove or disprove an essential element of the case.

In ruling that Akridge had waived the issue of identity by not appearing on the second day of trial, the trial court apparently was concerned that the State would be unable to prove identity due to Akridge’s absence from the courtroom. In its order denying Akridge’s motion for new trial, the court wrote:

The Court’s most serious disagreement with Defendant comes with the motion for new trial, which complains of the Court having ruled that identity was not an issue. Certainly it is expected that the state, in every case, will ask the arresting officer(s) or eyewitness(es), “Do you see that person here in the courtroom today?” even when mistaken identity has not been offered as the defense. Such a question would have been risible in the case at bar, since [counsel] sat alone at defense table.

The trial court’s conclusion that it would have been ludicrous for the State to have to ask the officer whether he saw the defendant in the courtroom, given her absence, does not justify excusing the State from its burden to prove identity. In-court identification is not the sole method of proving identity.

Cases from other jurisdictions have addressed identity issues arising from trials held in absentia and have discussed alternative means by which prosecutors have adequately proven the defendants’ identity. See State v. Ahlquist, 67 Wash.App. 442, 837 P.2d 628, 630-31 (1992) (rejecting claim that state failed to prove identity where undercover officer used a booking photograph to identify defendant as the person who sold the drugs); People v. Johnston, 160 Ill.App.3d 536, 112 Ill.Dec. 114, 513 N.E.2d 528, 533 (1987) (holding that identity of defendant was established where defendant had produced a driver’s license at the time of his arrest and, at trial, the officer described the individual he arrested and identified a photograph of the man); People v. Stanley, 116 Ill.App.3d 532, 72 Ill.Dec. 173, 452 N.E.2d 105, 106 (1983) (holding that state properly proved identity where three witnesses, including two people who lived with the defendant, identified him through photograph); State v. Hall, 136 Ariz. 219, 665 P.2d 101, 103 (1983) (testimony at trial that crimes were committed by a long-haired, weather-beaten, sunken-eyed man of about 40, named John Richard Hall, who was arrested in the presence of the victim, was sufficient to satisfy state’s burden of proving identity).

Because the trial court erred by ruling that identity would not be an issue in this case, we reverse and remand for a new trial.

DAVIS and SILBERMAN, JJ., concur.

      . See Fla. Std. Jury Instr. (Crim.) 3.7.


author: VAN NORTWICK, J.

text:
    Daniel BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5630.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Daniel Butler appeals a restitution order entered against him following a conviction for burglary. In the order under review, the trial court required Butler to pay restitution in the amount of $4,190. Butler argues that the trial court’s findings as to value of the property stolen and damaged in the burglary were not based on competent substantial evidence. We agree that, as to the $1,275 value placed on the damaged exterior door, the trial court relied on inadmissible hearsay, admitted over Butler’s timely objection. We find, however, that competent substantial evidence supports the remainder of the restitution order. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

On February 1, 2006, Butler and others burglarized Central Supply Store. At the restitution hearing, the owner of the store testified that cash in the amount of $2,390 was stolen in the burglary and that damage was done to an exterior door as well as two interior doors. To establish the value of the exterior door, the State introduced, over Butler’s hearsay objection, a written estimate from Tri-State Door Company. In this estimate, Tri-State Door determined that the cost of replacing the door would be $1,275. Butler timely objected to the admissibility of the $1,275 estimate for the replacement of the exterior door on the grounds that the estimate was hearsay. The objection was overruled. The trial court ordered the payment of restitution in the amount of $4,190 and based the value of the door on the $1,275 estimate. On appeal, Butler contends that the amount of restitution was not supported by competent substantial evidence in part because the portion of the restitution order relating to the exterior door was based on inadmissible hearsay.

The State has the burden of establishing restitution by a preponderance of the evidence. Glaubius v. State, 688 So.2d 913 (Fla.1997). The trial court, however, possesses the discretion to base the amount of restitution on the victim’s estimate of value of the stolen or damaged property. K.F. v. State, 746 So.2d 493 (Fla. 1st DCA 1999). Here, we find no abuse of discretion in the amount of the restitution, except for the valuation of the exterior door. The written estimate of the replacement cost for the exterior door was an out-of-court statement offered to prove the truth of the matter asserted, the value of the exterior door. Thus, the estimate constituted hearsay as defined in section 90.801(c), Florida Statutes (2006), and was inadmissible under section 90.802, Florida Statutes (2006), unless an exception is created by another statutory provision.

Written opinions or estimates may qualify as a business record exception to the hearsay rule under section 90.803(6), Florida Statutes (2006), if production of estimates is a regularly conducted business activity. To lay a proper foundation for the business record exception, however, the proponent of the evidence must “call a witness who can show that each of the foundational requirements set out in the statute is present.” Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So.2d 1369, 1373 (Fla. 1st DCA 1992); § 90.803(6)(a), Fla. Stat. Alternatively, section 90.803(6)(c) provides that the proponent can also establish the foundation by certification or declaration. Here, the State did not call a witness to testify as to the authenticity of the estimate, and the record does not establish that the State attempted to meet the requirements of certification. Accordingly, neither the business record exception nor any other exception applies to the written estimate.

“Hearsay evidence may be used to determine the amount of restitution if there is no objection to the evidence. However, as [defendant] argues and the State concedes, [defendant] made a proper objection to the evidence which should have been sustained.” Williams v. State, 850 So.2d 627, 628 (Fla. 2d DCA 2003)(reversing and remanding for a new restitution hearing). “On remand, written estimates may suffice, so long as they satisfy the requirements of business records under section 90.803(6), Florida Statutes (2005), or are uncontested.” I.M. v. State, 958 So.2d 1014, 1016 (Fla. 1st DCA 2007). Here, Butler made a timely hearsay objection to the admissibility of the written estimate. Because the written estimate was inadmissible hearsay evidence, we hold that the trial court erred in admitting the estimate and basing the value of the exterior door solely on this evidence.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. Forlano v. State, 964 So.2d 246 (Fla. 1st DCA 2007).

ALLEN and WEBSTER, JJ., concur.


text:
    Zerron McDANIEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3942.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.
    Nancy Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public Defender, and Joel Arnold, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The defendant appeals his convictions for possession of cocaine, possession of a concealed weapon and possession of less than twenty grams of marijuana. We find no error except that the order placing the defendant on probation incorrectly states that he entered a plea of guilty to the charges, when in fact he was convicted by a jury. This error was preserved for review by a timely post-sentencing motion under rule 3.800(b) and brought to this court’s attention by appellate counsel in a brief filed under the procedure in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We remand the case for the entry of a new probation order reflecting that the defendant was convicted by a jury. In all other respects we affirm.

KAHN, PAJDOVANO, and HAWKES, JJ., concur.


text:
    STATE of Florida, Appellant, v. Kelvin L. DUNN, Appellee.
    No. 1D07-0299.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

Because the trial court failed to make any written or oral findings to support the downward departure sentence, the sentence is REVERSED and the case is REMANDED to the trial court for resentenc-ing. If the trial court wishes to depart downward from the lowest permissible sentence indicated on the Criminal Punishment Code scoresheet, under section 921.00265(2), Florida Statutes, it must announce on the record a valid reason for so doing. State v. Carlson, 911 So.2d 234 (Fla. 2d DCA 2005); State v. Marshall, 869 So.2d 754 (Fla. 5th DCA 2004).

BARFIELD, WOLF, and HAWKES, JJ., concur.


text:
    Mechelle ROBINSON, Appellant, v. STATE of Florida BOARD OF NURSING, Appellee.
    No. 1D07-5155.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.
    Mechelle Robinson, pro se, Appellant.
    Patricia Nelson, Department of Health, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of October 9, 2007, the Court has determined that the notice of appeal, filed with the agency Clerk on October 8, 2007, was not filed within 30 days of rendition of the order on appeal as required by Florida Rule of Appellate Procedure 9.110(b). Accordingly, the appeal is hereby dismissed as untimely-

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


author: WARNER, J.

text:
    Michael HODGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2428.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In appealing his conviction for first-degree murder, appellant makes two primary contentions. First, the trial court erred in denying his motion for judgment of acquittal on his guilt as a principal, because the state proved only that he was the actual shooter of the victim. Because the evidence also supported the appellant’s participation in the robbery, and the defense itself sought to suggest to the jury that his confession on which the state relied was false, the trial court correctly denied the motion. Second, he claims that the trial court erred by refusing to read to the jury section 985.207(2), Florida Statutes (2005), requiring parental notification when a juvenile has been taken into custody. Although lack of notification of a parent is relevant to the voluntariness of a juvenile’s confession, the requested instruction on statutory compliance did not address that issue. The trial court did not err in denying the request. We affirm.

The appellant, Michael Hodge (age 13), and four friends — Michael Johnson (17), Terrence Bell (15), Eric Wilson (14), and Mendez Wilson (13) — were indicted for first-degree felony murder of Adam Bel-tran, attempted robbery with a deadly weapon, and conspiracy to commit robbery with a deadly weapon. Beltran was shot behind the convenience store where he worked.

Rick Morales was in the restaurant and heard the victim yell. He turned around to see Beltran lying at the door with blood on his shirt and a knife in his hand. Morales ran out but did not see anyone outside.

A witness across the street from the restaurant heard four gun shots and then saw three boys run up the street and two run east behind his shop. He was not asked to, and did not, identify Hodge as one of the people he saw fleeing. Officers arrived shortly thereafter, discovering Bel-tran dead. Evidence from the scene included a bullet from a .32 caliber gun in a canister of cooking grease. A similar bullet was retrieved from Beltran’s chest by the medical examiner.

According to the lead detective, Detective Campbell, word of the shooting spread “like wildfire,” and people began coming forward with information. As the investigation progressed, the detectives focused on an apartment complex about two blocks from the store. Both Johnson and Hodge lived in those apartments. Johnson, the oldest of those indicted, had felony warrants outstanding at the time of the shooting.

Detective Streeter testified that he received a call from one of his sergeants telling him that the suspects planned to turn themselves in and would be brought to the station by their parents. Streeter said that a car pulled up to the station with two women in the front and two young black men in the back. Johnson sat behind the driver and Hodge sat behind the passenger. In attempting to ascertain the identity of the two women, Streeter spoke to the passenger in the front seat who identified herself as Hodge’s mother. Both women hugged and kissed both children and then left. Streeter admitted that he did not otherwise know the identity of Hodge’s mother, and none of the detectives made any further attempt to contact Hodge’s parents, believing that the parents had brought their sons in to the police station. Streeter could not identify Hodge’s mother at trial but said he had only a couple of minutes to view her at the police station. Hodge’s mother did not testify at trial.

Streeter brought both young men to the detective bureau where they were questioned. Johnson was uncooperative in the interview. After receiving his Miranda rights, Hodge confessed to the murder, and officers videotaped his statement, which was played to the jury.

Hodge explained that he, Bell, Wilson, Johnson, and Wilson spent the morning at Evolino apartments. At some point the boys decided to go “amigo hunting,” i.e., to rob a Hispanic individual. Before the incident, all five of them decided to split the proceeds. As the group walked down the street, Eric Wilson spotted Beltran cutting boxes with a knife behind the convenience store and suggested they rob him because he had only one arm. Johnson and Bell waited across the street at a bench while Mendez Wilson, Eric Wilson, and Hodge approached the victim.

Hodge brought along a .32 caliber revolver, because the plan was to either fire shots in the air, or show Beltran the gun, to force the victim to turn over his money. At first, Hodge suggested he shot the victim in self-defense by saying “he say he’s going to kill me ... and he pulled out the knife ... then I shot him, two times.” Because the police stressed that Beltran could not have pulled the knife since he was already cutting boxes with it, Hodge revised his statement saying Beltran “came close with the knife ... with a mean face.” Hodge also told the detectives that Beltran commented, “[Y]ou dumb [expletive], you should be in school ... [t]o get a job.” Hodge became angry and fired two shots at Beltran in response to this comment.

Hodge told the officers he shot the victim twice in the torso or chest. He also estimated that he stood a few feet from Beltran when the shots were fired. Hodge remembered looking at the weapon and seeing four bullets and two empty shells. In other words, he shot the gun only twice.

Explaining the events right after the shooting, Hodge stated that Wilson, Bell, and Wilson ran in one direction while he and Johnson ran in another. Hodge said he looked back over his shoulder to see Beltran fall down. Hodge told the police that as he fled the scene he ran past a young man called “Miami” and gave him the gun. At times during the interview Hodge changed his explanation and seemed quite vague about some details. Through viewing the videotape, the jury was able to observe Hodge’s demeanor during the interrogation.

The police asked Hodge several questions about Johnson’s role in the incident, as well as that of the other boys involved. Hodge denied that Johnson had pressured him to take responsibility for shooting the victim and minimized Johnson’s role. Hodge said that Johnson knew they were going to ask the victim for money but did not know that Hodge planned to use the gun to accomplish this. Furthermore, he stated that Johnson was across the street on a park bench while the attempted robbery and shooting took place.

The state rested, and Hodge’s attorney moved for a judgment of acquittal as to the alternative theory that Hodge may have acted as a principal, because the state’s only evidence — Hodge’s confession— showed that Hodge was the actual shooter. Since no one else shot the victim, Hodge could be only the shooter. The attorney asserted that the state should be required to choose a theory — principal or shooter— and should not be allowed to submit both theories to the jury.

The court denied the motion explaining that the state was allowed to assert alternative theories “because the jury can believe or disbelieve part or all of appellant’s statement.” Where there were multiple participants to the robbery, the court thought that the jury should be free to determine the issue of who pulled the trigger. The court was mindful that the defense might argue that Hodge falsely confessed to cover for one of the other participants in the crime. As there was sufficient evidence that Hodge participated in the robbery, which his attorney conceded, Hodge could be found liable for felony murder whether he was the shooter or someone else shot the victim.

Sure enough, in closing Hodge’s attorney argued that Hodge had falsely confessed, although he admitted Hodge was present at the robbery. To show that his confession was false, counsel noted the discrepancies between Hodge’s confession and the facts of the crime. First, Hodge said he fired only two shots, while the witness across the street heard four. Second, Hodge told the detectives he fired two shots into the victim’s chest, while the evidence showed only one shot into the chest and one into the lower abdomen of the victim. Third, the medical examiner stated that the gun was fired from at least twelve to eighteen inches away from the victim, while Hodge testified that he held the gun right up to him. The attorney also pointed to other facts within the confession which were inconsistent or which Hodge contradicted in later parts of the confession. The attorney maintained that Hodge was lying to protect Johnson who was older and already had felony warrants out for his arrest.

This line of reasoning appears to have convinced the jury that Hodge’s confession that he shot the victim was untrue, as the jury found Hodge guilty of first-degree felony murder as a principal, but not as the shooter; attempt to commit robbery; and conspiracy to commit robbery. Pursuant to an interrogatory on the verdict form, the jury found that Hodge did not carry a firearm, deadly weapon, or weapon during the course of committing or attempting to commit the crime. The judge sentenced Hodge to life imprisonment for felony murder, five years for attempted robbery, and five years for conspiracy to run consecutively. This appeal follows.

I. Judgment of Acquittal

Hodge argues that the trial court erred in denying his motion for a partial judgment of acquittal, because the evidence that Hodge was a principal to first-degree felony murder and attempted robbery was insufficient to submit the issue to the jury. The party moving for a judgment of acquittal admits “the facts in evidence ... [and] every conclusion favorable to the state that a jury might fairly and reasonably infer from the evidence.” Parker v. State, 795 So.2d 1096, 1097 (Fla. 4th DCA 2001). “A trial court should not grant a motion for judgment of acquittal unless, when viewed in the light most favorable to the state, the evidence does not establish a prima facie case of the defendant’s guilt.” Id. at 1098. On appeal, a trial court’s ruling on a motion for judgment of acquittal is subject to de novo review. Davis v. State, 918 So.2d 379, 381 (Fla. 4th DCA 2005) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)).

Section 782.04(l)(a)2, Florida Statutes, defines felony murder as “[t]he unlawful killing of a human being ... [wjhen committed by a person engaged in the perpetration of, or in the attempt to perpetrate” one of the felonies enumerated in the statute, which includes robbery. Section 777.011 provides for the culpability of principals to a felony:

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such....

The statutory language makes clear that both the actor and the aider and abettor are principals in the crime. See Chaudoin v. State, 362 So.2d 398, 401 (Fla. 2d DCA 1978). As noted in State v. Roby, 246 So.2d 566, 571 (Fla.1971):

Under our statute, therefore, a person is a principal in the first degree whether he actually commits the crime or merely aids, abets or procures its commission, and it is immaterial whether the indictment or information alleges that the defendant committed the crime or was merely aiding or abetting in its commission, so long as the proof establishes that he was guilty of one of the acts denounced by the statute.

Accordingly, “the felony murder rule and the law of principals combine to make a felon liable for the acts of a co-felon.” Beachy v. State, 837 So.2d 1152, 1152 (Fla. 1st DCA 2003).

That the state presented a prima facie case that Hodge participated in the attempted robbery of Beltran is unquestioned, and his attorney did not move for a judgment of acquittal on the attempted robbery charge. The focus in a felony murder charge is not on the accused’s participation in the murder but in the underlying felony. See id.; Michelson v. State, 805 So.2d 983, 986 (Fla. 4th DCA 2001) (Gross, J., concurring specially). Because the victim was killed during the robbery in which Hodge participated, it matters not whether Hodge was the perpetrator of the shooting or merely participated in the robbery. In either event he would be guilty of felony murder. See Roby, 246 So.2d at 571.

The state was entitled to pursue its case on either theory, even though Hodge “confessed” to being the shooter. The jury is instructed that: “A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.” Fla. Std. Jury Inst. (Crim.) 3.9. So long as the state presented evidence of multiple participants in the underlying felony, we think it was entitled to have the jury instructed that it could find Hodge guilty either if he was the actual shooter or if one of the other participants was the actual shooter but Hodge participated in the attempted robbery.

Moreover, that Hodge may not have been the shooter was amply demonstrated by the defense’s argument that Hodge did not have all the details correct in his “confession,” details that the actual shooter may have known. The jury was also able to watch Hodge’s demeanor during his confession to determine whether he was telling the truth. For these reasons, we conclude that no error was shown in denying the motion for judgment of acquittal.

II. Jury Instruction

The defense requested a special jury instruction on “[t]he statute dealing with juveniles and law enforcement is supposed to attempt to reach their parents.” The attorney did not know the statute number, and the court was not familiar with it. The state attorney and the court suggested that the requirement may be case-made law. Nevertheless, the attorney requested a “standard instruction” on the statute, requesting that it be read, if such a statute existed. If the attorney could not find a statute, he requested a jury instruction “[tjhat prior to interrogating a juvenile concerning their involvement in a crime, law enforcement must make every reasonable attempt to contact the juvenile’s parents prior to making — prior to initiating the interrogation.”

The court denied the requested instruction for two reasons. First, it maintained that the issue went to the admissibility of the confession, not its voluntariness, similar to Miranda warnings, and thus was a threshold issue, not one for the jury. Second, the law was intended for the benefit of the parents in knowing their child’s whereabouts, not as a right of parents to be present when the interrogation of a child is conducted. Deferring to the court’s ruling, the attorney noted that he had not been able to find case law to support his position. Although the court did not charge the jury until the following day, the attorney did not provide the court with the statute setting forth the duties of a person taking custody of a juvenile.

The statute in question, which defense counsel did not cite to the court, is section 985.207(2), Florida Statutes (2005). It provides:

When a child is taken into custody as provided in this section, the person taking the child into custody shall attempt to notify the parent, guardian, or legal custodian of the child. The person taking the child into custody shall continue such attempt until the parent, guardian, or legal custodian of the child is notified or the child is delivered to a juvenile probation officer pursuant to s. 985.21, whichever occurs first. If the child is delivered to a juvenile probation officer before the parent, guardian, or legal custodian is notified, the juvenile probation officer shall continue the attempt to notify until the parent, guardian, or legal custodian of the child is notified. Following notification, the parent or guardian must provide identifying information, including name, address, date of birth, social security number, and driver’s license number or identification card number of the parent or guardian to the person taking the child into custody or the juvenile probation officer.

The supreme court determined that the legislative purpose of a prior version of statute “is simply to advise the child’s parents or custodians that the child has been detained or placed in shelter care.” Doerr v. State, 383 So.2d 905, 907 (Fla.1980). This is consistent with the trial court’s ruling.

Doerr also held that the statute does not render a confession obtained without parental notification automatically inadmissible. Although the statute requires the police to notify the parents, it does not prohibit the police from interrogating the child before notification is accomplished. Brookins v. State, 704 So.2d 576, 578 (Fla. 1st DCA 1997). See also Padmore v. State, 743 So.2d 1203 (Fla. 4th DCA 1999).

Even where the police make no effort to contact the parents, we have held a juvenile’s confession admissible. In Brancacc io v. State, 773 So.2d 582 (Fla. 4th DCA 2000), police did not notify a juvenile’s parents of his custody until after they obtained his confession. When the juvenile inquired as to his parents’ notification, the police merely told him that “it’s being taken care of.” Id. at 584. He did not ask to suspend interrogation until they were present. We noted, “The issue as to whether police have complied with the parental notification statute was a legal question for the court in deciding whether to permit the confession to be adduced as evidence before the jury.” Id. (footnote omitted).

Whether a juvenile’s confession is voluntary requires an analysis of the totality of the circumstances. Id. Relying on Ramirez v. State, 739 So.2d 568, 575-78 (Fla.1999), we enumerated the relevant considerations:

(a) the manner in which the police administered Miranda rights, (b) the juvenile’s age, experience, education, background and intelligence, (c) whether the juvenile had an opportunity to speak with his/her parents before confessing, and (d) whether the juvenile executed a written waiver of the Miranda rights prior to making the confession.

Brancaccio, 773 So.2d at 583-84 (emphasis supplied). As the supreme court explained in Doerr, “Lack of notification of a child’s parents is a factor which the court may consider in determining the voluntariness of any child’s confession.... ” 383 So.2d at 908.

The instruction requested by the defense did not focus on the juvenile’s opportunity to consult with his parents but on the conduct of the officers. This was not a correct statement of the issues a jury should consider in determining voluntariness. The trial court did not err in refusing to instruct the jury in accordance with the defense’s request.

The court did not prevent the defense and state from arguing the issue of parental notification to the jury. In fact, the state and defense both told the jury of the obligation of the police to notify the parents. The state contended that when Hodge came to the station for questioning with a woman claiming to be his mother, the officers thought that his parent knew where he was and the purpose of his trip to the station. The defense argued that the officer could not identify the woman as Hodge’s mother.

In any event, the defense did not actually contest the voluntariness of the statement. Instead, the defense attorney contended that it was a false confession made with the intent to deflect the focus on Johnson. That does not constitute an involuntary confession.

The last issue raised involves a claim of the admission of hearsay. We conclude, however, that the evidence to which the defense objected constitutes an exception to the hearsay rule, because it was not admitted for the truth of the statement.

For the foregoing reasons, we affirm the conviction and sentence.

KLEIN and GROSS, JJ., concur.


author: SHAHOOD, C.J.

text:
    James J. FRAZIER, Cross-Appellant, v. STATE of Florida, Cross-Appellee.
    No. 4D06-2057.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Dan Hallenberg of Law Office of Dan Hallenberg, P.A., Fort Lauderdale, for cross-appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for cross-appellee.
   SHAHOOD, C.J.

We affirm cross-appellant (hereafter “appellant”) James J. Frazier’s conviction following a jury trial for the offenses of burglary of an occupied dwelling and petit theft. However, we remand to the trial court for resentencing.

As his first issue, appellant urges that he is entitled to a new trial based upon the prosecutor’s comment during closing argument that if the jury did not follow the law regarding the definition of a “dwelling,” it would not be following the law, “just as” appellant had done. Appellant contends that this comment improperly implied the jury would be committing a crime if it did not follow the law, and nullified the jury’s inherent right to issue a jury pardon by finding appellant guilty of the lesser offense of trespass.

“The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.” Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985). “Merely arguing a conclusion that can be drawn from the evidence is permissible fair comment.” Mann v. State, 603 So.2d 1141, 1143 (Fla.1992). The control of comments during closing argument is within the trial court’s discretion and an appellate court will not interfere unless an abuse of discretion is shown. Breedlove v. State, 413 So.2d 1, 8 (Fla.1982).

We hold there was nothing improper in the prosecutor’s urging the jury to follow the law.

Appellant next argues that the trial court erred in denying his motion for judgment of acquittal. Specifically, appellant contends that the State failed to make its prima facie case of burglary because it failed to present evidence that appellant entered a dwelling. The State maintains that the trial court correctly denied the motion based on evidence it introduced that appellant was inside the victim’s fenced-in yard digging up a tree. We affirm as to this issue on the authority of Chambers v. State, 700 So.2d 441 (Fla. 4th DCA 1997).

As his final issue on appeal, appellant argues that he is entitled to resentencing due to significant errors in the calculation of his Criminal Punishment Code Score-sheet. Appellant claims that the correct scoring would have provided a lowest permissible prison sentence of 89.85 months, significantly less than the 120 months to which the trial court sentenced him. The State concedes, and we agree, that this case must be remanded for resentencing under a corrected scoresheet.

We accordingly affirm appellant’s convictions and remand for resentencing.

Affirmed; Remanded for Sentencing.

FARMER and TAYLOR, JJ., concur.


author: STONE, J.

text:
    Martin DIEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2488.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Diez’s conviction on counts of armed kidnapping of a child under thirteen years of age, armed kidnapping, armed burglary, and interference with custody. The primary issue on appeal is whether the state proved a prima facie case of kidnapping as to the two victims.

Diez committed the offenses in an effort to forcefully remove E.L., age five, from her mother’s (Eunice’s) care in Broward County and take E.L. to her grandparents, who are from another country, but were temporarily staying in south Florida.

Diez arrived at Eunice’s apartment, showed her a fake badge, a search warrant, and a silver gun with a black handle, told Eunice he was a police officer, and asked her to open the door. As Eunice opened the door, Diez pushed her against the wall, then to the floor, handcuffing her from behind. E.L. came out crying. Grabbing handcuffed Eunice by the arms and pointing the gun at her, Diez took Eunice from room to room through the apartment in search of E.L.’s passport and other documents.

Diez also searched Eunice’s bag, removing her driver’s license and cell phone, the only phone in the apartment. Leaving with E.L., Diez removed Eunice’s handcuffs, pointed the gun at her, told her not to call the police and that he would shoot her if she moved. Diez then drove E.L. to the grandparents in Miami.

Kidnapping is defined in section 787.01(l)(a), Florida Statutes, in relevant part, as “forcibly, secretly or by threat confining, abducting or imprisoning another person against his will and without lawful authority, with intent to ... [c]ommit or facilitate commission of any felony.” The supreme court in Faison v. State, 426 So.2d 963 (Fla.1983), adopted a three-prong test for determining whether the movement or confinement of a victim during the commission of another felony is sufficient to support an additional conviction for kidnapping. Under the Faison test:

to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Id. at 965.

We have considered, and reject, the argument that, as to both victims, Diez committed the offense of interference with custody and that his forceful moving and confining the victims was simply incidental to that offense. The use of force, by breaking in, threatening with a gun, and forced movement and restraint, cannot be viewed as naturally accompanying the interference with custody under section 787.03, Florida Statutes.

We deem all three kidnapping prongs proved as to both victims. Cf. Faison, 426 So.2d 963; Berry v. State, 668 So.2d 967 (Fla.1996).

As to all other issues raised, we also find no reversible error or abuse of discretion.

STEVENSON and HAZOURI, JJ., concur.


text:
    John D. KELNER, Appellant, v. Carol J. KELNER, Appellee.
    No. 4D07-380.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    John D. Kelner, Hollywood, pro se.
    Carol J. Kelner, Plantation, pro se.
   SHAHOOD, C.J.

John D. Kelner, Esq. (“husband”) appeals the trial court’s final order of dismissal of joint petition for simplified dissolution of marriage. Carol J. Kelner (“wife”) agrees with husband’s position in this appeal. The parties argue the trial court erred in dismissing their joint petition based on their failure to file financial affidavits. We agree and reverse.

Husband and wife were married to each other in January 2004. They filed a joint petition for simplified dissolution of marriage approximately three years later. The petition stated that the parties had already divided and removed the marital property pursuant to a fair and equitable marital settlement agreement dividing their marital assets and liabilities. The parties asked the court to end the marriage and approve the marital settlement agreement.

The parties executed and filed a joint affidavit of waiver of financial affidavits in conjunction with the petition. The affidavit stated that each of them had detailed knowledge of the business and personal finances of the other. It further stated that the parties had already agreed on the distribution of marital assets and both parties considered the distribution equitable. The affidavit expressed the parties’ intentions to waive the filing of financial affidavits under rule 12.105, Florida Family Rules of Procedure.

At the hearing, husband informed the court that the parties had not filed financial affidavits and had filed the waiver. The trial court stated that the simplified rules of dissolution required financial affidavits. The court decided it would not proceed until financial affidavits were filed and gave the parties thirty days to file them. The court entered a written order stating that the case would be dismissed without further hearing if the parties failed to file financial affidavits. Husband requested rehearing, arguing the court’s insistence on financial affidavits was inconsistent with the relevant rules of procedure and case law. Despite husband’s efforts, the trial court dismissed the case a week after the hearing based on the parties’ representations that they would not comply with the court’s order requiring financial affidavits. This appeal followed.

The sole issue in this appeal is whether the parties to a simplified dissolution of marriage may waive the filing of financial affidavits. Rule 12.105(c), Florida Family Law Rules of Procedure, provides that in simplified dissolution proceedings, “[t]he parties must each file a financial affidavit (Florida Family Law Rules of Procedure Form 12.902(b) or 12.902(c)), and a marital settlement agreement (Florida Family Law Rules of Procedure Form 12.902(f)(3)).” In non-simplified dissolution proceedings, rule 12.285 requires the filing of a financial affidavit and specifically states that parties may not waive the requirement. See Fla. Fam. L.R.P. 12.285(c)-(d).

The issue of the waiver of financial affidavits in simplified dissolution has been addressed before. In Varrieur v. Varrieur, 775 So.2d 361, 362 (Fla. 3d DCA 2000), the parties to a simplified dissolution proceeding obtained a final judgment of dissolution without either party filing a financial affidavit or objecting to the other party’s failure to file one. The parties had previously divided up their marital assets and signed a partnership agreement to govern the operation of their jointly owned rental properties. Id. The wife later petitioned to have the final judgment set aside. The trial court denied the petition, finding the wife’s decision to accept the previous division of property and partnership agreement was knowing and voluntary. Id.

On appeal, the wife argued that a financial affidavit is a mandatory requirement in simplified dissolution proceedings. The court noted that, although rule 12.105 governing simplified dissolution states the parties “must each file a financial affidavit,” that rule does not contain the language specifically preventing waiver found in rule 12.285. Id. at 362-63. The court reasoned that “[t]he deliberate exclusion of this language evidences a different meaning was intended with regard to financial disclosure in simplified dissolution proceedings.” Id. at 363. The court concluded that “a party may waive the filing of a financial affidavit in a simplified proceeding under Rule 12.105 by failing to object at trial. Such a waiver will be upheld where there is no showing of prejudice and the record demonstrates competent substantial evidence supports the final award.” Id. See also Dyke v. Dyke, 837 So.2d 584, 587 (Fla. 5th DCA 2003) (holding that even if trial court erred by proceeding without financial affidavit from wife, lack of affidavit did not deprive trial court of jurisdiction and error was waived by failure to object at final hearing).

Salczman v. Joquiel, 776 So.2d 986, 987 (Fla. 3d DCA 2001), is a case with similar facts, but involving non-simplified dissolution under rule 12.285. In Salczman, the court held that the rule’s plain language requires the parties to file financial affidavits only where there has been a request for permanent financial relief. 776 So.2d at 988. The husband and wife in Salcz-man sought no financial support from one another and had divided their jointly owned assets equally in accordance with the terms of a prenuptial agreement prior to final hearing. Id. at 987-88. The court reasoned that in the absence of a request for permanent financial relief, “financial affidavits are not required and are indeed wholly irrelevant to the proceeding.” Id. at 988.

In the present case, the parties had already divided the property according to a marital settlement agreement. Additionally, neither party sought financial support from the other. It follows from the cases discussed above that parties to a simplified dissolution may waive the filing of financial affidavits under the circumstances presented here notwithstanding the language in rule 12.105. We therefore hold that the trial court erred in dismissing the parties’ petition for dissolution of marriage.

Reversed.

FARMER and TAYLOR, JJ., concur.


author: PER CURIAM. POLEN, J.,

text:
    Mark BEDFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1405.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Mark Bedford, South Bay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Clarification

PER CURIAM.

We grant the motion for clarification, withdraw our prior opinion and substitute the following in its place.

The appellant, Mark Bedford, seeks review of the summary denial of a rule 3.850 motion. The lower court denied relief believing the particular issue raised had been rejected on the merits in one of the several prior motions, and was thus procedurally barred. While the lower court has rejected several motions related to this issue, and this court has affirmed, the particular issue has never been addressed on the merits and we must consider whether we should address it to prevent a manifest injustice. Because, however, the issue presented was objected to at his original trial and could have been raised on direct appeal, no manifest injustice is shown. We affirm.

The state charged Bedford by information in 1994 with delivery of cocaine within 1000 feet of a school, citing violations of sections 893.13(l)(c)l. and 893.03(2)(a), Florida Statutes. Over the objection of the defense, the jury was instructed on a purported lesser included offense of delivery of a counterfeit controlled substance, a violation of section 831.31, Florida Statutes. That charge would have been inappropriate under the facts of this case. See Twinn v. State, 442 So.2d 286 (Fla. 3d DCA 1983). Although the substance taken from Bedford tested positive for cocaine, the jury found Bedford guilty of the purported lesser included offense, and the judge imposed a time-served sentence. Bedford did not appeal this conviction or sentence. This conviction, however, led to his habitualization in another case.

Upon learning of the conviction’s affect on habitualization, he filed a motion for postconviction relief claiming his attorney was ineffective for failing to file an appeal. Ultimately, this was treated as a petition for belated appeal. After an evidentiary hearing, the trial court denied the claim, finding that he had not requested his attorney to file an appeal. This court subsequently denied his petition for writ of ha-beas corpus to file a belated appeal.

Bedford then filed another rule 3.850 motion, but this motion was directed to ineffective assistance of counsel at the evi-dentiary hearing on the petition for belated appeal. In August 1999, while this claim was pending, he filed another motion for postconviction relief. In this motion he alleged that his conviction constituted fundamental error because he was convicted of an uncharged crime for which no evidence was presented at trial. The state argued that relief was barred on procedural grounds, because the motion was successive and untimely, as it was filed more than two years after his conviction became final in 1995. The trial court agreed and summarily denied the motion. We affirmed. Bedford v. State, 768 So.2d 461 (Fla. 4th DCA 2000).

A series of petitions and motions followed, trying to get the trial and appellate courts to address the merits of his motion claiming fundamental error. He explained that his original motion was not untimely, because he was not incarcerated in connection with his prior crime. Until Wood v. State, 750 So.2d 592 (Fla.1999), rule 3.850 contained an “in custody” requirement. Where this was not met, a defendant could file a petition for writ of error coram nobis to seek relief. There was no time limitation on such motions. Wood amended the rule for 3.850 relief to eliminate the “in custody” requirement and applied the two-year time limitation requirement of the rule to petitions for writ of error coram nobis. However, it permitted defendants adjudicated guilty prior to the opinion a period of two years from the date of the opinion (May 27, 1999) to file claims traditionally cognizable under coram nobis.

Bedford was in a situation similar to Wood. He was not in custody for the conviction he sought to challenge, but his present sentence was enhanced because of his prior conviction. Bedford’s motion for postconviction relief challenging his conviction filed in August 1999 was timely under Wood, a fact that both the trial court and our court overlooked.

Bedford did not file a motion for post-conviction relief related to his conviction and sentence (as opposed to the petition for belated appeal) until the August 1999 motion which claimed his conviction was fundamentally erroneous. Therefore, his motion was neither successive nor untimely.

Because Bedford has filed many motions addressing this in the trial court and appealed them to our court, all of which have been denied on grounds other than the merits of the issue, the question is whether res judicata, law of the case, collateral estoppel, or any other doctrine applies to deny him relief. These judicial doctrines serve the purpose of preventing the relitigation of issues which have already been decided or could have been decided in prior litigation. However, none of these doctrines will be invoked where a manifest injustice would result. See State v. McBride, 848 So.2d 287, 291-92 (Fla.2003). We conclude that no manifest injustice has occurred in this case for the following reasons.

The claim of error could have been properly raised on direct appeal. Bedford admits his attorney objected during the charge conference and objected after the judge read the questionable instruction, thus preserving the issue for appellate review. “The law is clear that where an issue could have been raised on direct appeal, it is not a proper subject for a rule 3.850 motion.” Childers v. State, 782 So.2d 946, 947 (Fla. 4th DCA 2001); see also Koon v. Dugger, 619 So.2d 246, 247 (Fla.1993); Armstrong v. State, 429 So.2d 287, 288-89 (Fla.1983).

Bedford alleges, instead, that the error was fundamental and thus can be raised at any time. Where an error is fundamental, it may be raised for the first time at any point, including a post-conviction proceeding. See Willie v. State, 600 So.2d 479, 482 (Fla. 1st DCA 1992). See also Hipp v. State, 650 So.2d 91, 92 (Fla. 4th DCA 1995) (noting that an error which amounts to a denial of due process can be raised for the first time in a post-conviction proceeding).

Generally it is a denial of due process to convict on a crime not charged. See Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948). Even to this proposition there are exceptions, however. In Ray v. State, 403 So.2d 956 (Fla.1981), our supreme court held that

it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction.

Id. at 961 (footnote omitted).

We think the rule of Ray applies to this case, even though the defendant objected to the improper jury instruction charging an erroneous lesser offense. First, the offense for which he was convicted is both lesser in degree and penalty than the charged offense. Second, despite the alleged objection to the jury instruction, Bedford does not state whether his attorney relied on this lesser offense in his argument to the jury. Moreover, just as failure to timely object precludes relief from a conviction on an erroneous lesser included offense, failure to appeal the preserved issue should also yield the same result. Bedford had the opportunity to appeal a preserved error, and he failed to do so. Even constitutional errors can be waived if not timely presented. Id.

Considering the entire history of this case, we do not find that a manifest injustice has occurred such that Bedford is entitled to relief.

Affirmed.

WARNER and HAZOURI, JJ., concur.

POLEN, J., concurs specially with opinion.

POLEN, J.,

specially concurring.

I write separately simply to point out the irony in how we ultimately came to our conclusion that appellant is not entitled to relief. This is a case that clearly illustrates the situation of a party “snatching defeat from the jaws of victory.” In our prior slip opinion, issued September 19, 2007, we concluded that appellant was entitled to a hearing on the merits, despite the numerous prior motions and appeals set out in the majority opinion, “in the interest of justice.” We based our decision, in part, on our erroneous belief that appellant’s trial counsel had failed to object to the improper jury instruction.

Then, inexplicably, appellant, who is pro se, filed a Motion for Clarification! Did he not understand that he had prevailed? Or did he just want to make sure he was being perfectly candid with the court? Having been thus advised of our factual error concerning the preservation of the jury instruction issue, we were clearly compelled to reach the conclusion stated by the majority — appellant could have raised this issue on direct appeal.

This is not an isolated occurrence. While statistically there is a low percentage of pro se collateral criminal appeals that result in reversal, from time to time the victorious pro se appellant will nonetheless seek rehearing. Perhaps we should be grateful that Mr. Bedford gave us an opportunity to correct our error, and not consume any more valuable time for the trial court on remand. But, somehow, I suspect Mr. Bedford may not be so grateful.


author: STEVENSON, J.

text:
    Michael J. RATLIFF, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-581.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

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

Michael Ratliff appeals the revocation of his probation for illegal possession of oxy-codone and illegal possession of the same drug with intent to sell. Because the material evidence adduced to prove the criminal violations consisted almost exclusively of inadmissible hearsay, we reverse.

At the revocation hearing, Detective Jones, from the Fort Pierce Police Department, testified that a female confidential informant was to set up a drug deal with Ratliff and a female. Jones testified that the informant told him she spoke with Ratliff and he would be providing oxyco-done pills at the transaction. The deal was to take place on September 13, 2005, at Wal-Mart on U.S. 1 in Port St. Lucie. An undercover police officer was to purchase eight oxycodone pills from Ratliff and a female in exchange for $210. At the designated time and place, Jones was present and observed the transaction from about fifty yards away. The informant and the undercover officer waited in an unmarked ear in the Wal-Mart parking lot. The informant was seated in the passenger’s seat and the undercover officer, J.W., was seated in the driver’s seat. A white female and Ratliff walked through the parking lot towards the vehicle. The undercover officer stated that the informant identified Ratliff and said, “oh, that’s him.” The female went to the driver’s side and Ratliff went to the passenger’s side and talked with the informant. The female conducted the deal and sold the eight pills to J.W. for $210. Afterwards, J.W. gave the pills to Detective Jones. The pills were tested in the police lab and confirmed as oxycodone.

Ratliff testified at the hearing that the woman he was with was his friend’s sister and she had arranged a trip to Wal-Mart for shopping. He maintained he knew nothing about the drugs. Ratliff testified he was going to walk into Wal-Mart when the fiiend’s sister started to walk off to the side. He followed her to a parked vehicle and walked up to the passenger’s side. He was interested in meeting the women in the vehicle. He talked with the woman at the passenger’s side until his companion said, “let’s go.” Appellant and his female companion then went shopping and later went home.

The violation of probation affidavit stated in two counts that appellant violated condition (5) of the order of probation by committing the criminal offenses of possession of oxycodone and possession of oxyco-done with intent to sell oxycodone, both occurring on September 13, 2005. At the conclusion of the hearing, the trial judge found appellant had violated his probation, although the final order did not specify upon which count(s) the probation had been revoked.

An appellate court reviews the trial court’s determination of a violation of probation under an abuse of discretion standard. See Kaduk v. State, 959 So.2d 817, 819 (Fla. 4th DCA 2007). The state has the burden of proving by the greater weight of the evidence that a violation of probation is willful and substantial. While hearsay evidence is admissible in probation revocation proceedings, probation cannot be revoked based solely on hearsay evidence. See J.F. v. State, 889 So.2d 130, 131 (Fla. 4th DCA 2004); Combs v. State, 351 So.2d 1103 (Fla. 4th DCA 1977). However, probation can be revoked if the hearsay evidence is presented in combination with non-hearsay evidence. J.F., 889 So.2d at 132.

The State argues that, in the instant case, the hearsay and non-hearsay evidence together is sufficient to establish the charged violations were committed. The complicity of appellant in the drug transaction at issue was supplied by hearsay testimony: 1) made by Detective Jones that the confidential informant told him that she had spoken to appellant; and 2) made by undercover officer, J.W., that the confidential informant said, “that’s him,” when appellant approached their car. The State reasons that this hearsay evidence, combined with the non-hearsay evidence that appellant showed up at the place where the drugs were to be sold and seemed to know the informant, is sufficient to establish that appellant committed the drug offenses. As the State argued, “the evidence or inference is that he [appellant] knows this person and this person has told the detective that this is what’s going to take place at this time.” We find the State’s argument unpersuasive.

Appellant’s violation of probation affidavit was based on the charges of possession of oxycodone and possession of ox-ycodone with intent to sell. Neither Detective Jones nor the undercover officer testified that appellant was seen with the oxycodone pills in his custody or control, and it was undisputed that his female companion conducted the transaction. The State’s only direct evidence of appellant’s involvement in the charged violations was a hearsay statement from the confidential informant that she spoke to appellant when she set up the drug transaction. As the court stated in Johnson v. State, 962 So.2d 394 (Fla. 2d DCA 2007): “While probation may be revoked based on a combination of hearsay and nonhearsay evidence, when the State seeks to revoke probation based on the commission of new offenses, it must present direct, nonhear-say evidence linking the defendant to the commission of the offense at issue.” Id. at 396-97 (citations omitted). Based upon the lack of non-hearsay evidence establishing the essential elements of the criminal offenses at issue, i.e., knowledge, custody and control of the drug, and intent to sell, we conclude the trial judge abused his discretion in revoking appellant’s probation. Cf. Johnson v. State, 581 So.2d 220 (Fla. 2d DCA 1991) (finding mere presence of defendant at scene of drug transaction insufficient to establish requisite knowledge and intent to participate in attempted drug trafficking); Garcia v. State, 899 So.2d 447 (Fla. 4th DCA 2005) (noting that evidence which furnishes nothing more than a suspicion that defendant committed the crime is not sufficient).

We have also considered the State’s alternative argument that the evidence nonetheless sufficiently established appellant violated condition (5) of his probation by associating with a person engaged in criminal activity. The State’s alternative argument lacks merit. Although condition 5 prohibits the probationer from associating with “persons engaged in criminal activity,” the affidavit charged appellant with violating condition (5) by “failing to live and remain at liberty without violating any law.” “As a fundamental principle of due process, a revocation may be based only on a violation alleged and presented.” Davis v. State, 891 So.2d 1186, 1187 (Fla. 4th DCA 2005).

Accordingly, we reverse the judgment on appeal and remand with directions that appellant’s probation be reinstated.

Reversed and Remanded.

STONE and HAZOURI, JJ., concur.


author: EMAS, KEVIN M., Associate Judge.

text:
    Walter PROPHET, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3662.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   EMAS, KEVIN M., Associate Judge.

The issue we confront is whether a police officer seeking to search a shared residence is required by the Fourth Amendment to secure consent from a physically absent, but nearby, tenant after that officer has already obtained a valid consent from a co-tenant who is on the premises. Finding no constitutional violation, we affirm.

Based upon reports of significant drug-related crime in the area, the West Palm Beach Police Department set up surveillance within one of the city’s neighborhoods. During the course of the surveillance, Officer Paul Creelman observed appellant, Walter Prophet, go into a nearby residence, emerge with baggies of suspect marijuana, and clip those baggies to a fence along the property line of the residence. Officer Creelman also observed Prophet engage in several hand-to-hand sales of marijuana. Officer Creelman approached the fence and, after inspecting the baggies and determining they contained marijuana, arrested Prophet. Prophet was handcuffed and placed in the back of a nearby patrol car.

Officer Creelman then went to the residence where he had earlier observed Prophet exiting with the baggies of marijuana. At the doorway of the residence, Officer Creelman spoke with a Ms. Starks, who indicated she lived there and that she and Prophet were cousins. Ms. Starks gave police consent to search the house. Officer Creelman called for a supervisor before beginning the search. While awaiting the supervisor’s arrival, Officer Creel-man returned to the patrol car and spoke with Prophet, asking for his name, date of birth, and residence address.

Upon returning to the residence, Officer Creelman met a second woman, Ms. Jones, who said she lived in the residence and shared a bedroom with Prophet. Ms. Jones consented to a search of the bedroom, where police discovered a firearm, cocaine, marijuana, a scale, baggies, and Prophet’s wallet. Prophet was charged by information with possession of a firearm by a convicted felon; trafficking in cocaine; possession of cocaine with intent to sell within 1000 feet of a park, possession of marijuana with intent to sell within 1000 feet of a park, and possession of drug paraphernalia for production.

Prophet moved to suppress the evidence seized in his bedroom, contending the war-rantless search was unreasonable under the Florida and United States Constitutions. The trial court denied the motion. The parties stipulated that the ruling on the motion to suppress was dispositive, and Prophet pled guilty to the charges of possession of a firearm by a convicted felon and trafficking in cocaine, reserving his right to appeal the denial of the motion. We have jurisdiction. See Fla. R.App. P. 9.140(b)(2)(A)®.

Relying on the United States Supreme Court decision in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), Prophet contends that, under the circumstances, the search was unreasonable because the police should have obtained his consent before searching the home, and that the consent of the co-tenants was insufficient to justify the search. However, neither Randolph nor its predecessor, United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), supports Prophet’s position.

In Matlock, the defendant was arrested in the front yard of a house he shared with a woman, and he was placed in a nearby patrol car. The woman co-tenant then consented to a search of the house, where police discovered cash from a bank robbery. Matlock was not asked to consent to the search nor did he voice an objection to the search. In reversing the lower court’s order suppressing the evidence seized, the United States Supreme Court held that “the consent of one who possesses common authority over premises ... is valid as against the absent, nonconsenting person with whom that authority is shared.” 415 U.S. at 170, 94 S.Ct. 988.

The Supreme Court in Matlock recognized that where more than one person resides in a home, each resident assumes the risk that another resident may permit a search to be conducted in an area over which they share common authority. In the instant case, as in Matlock, Defendant was arrested and placed in a patrol car near the residence subsequently searched. Matlock did not impose upon the police a duty to advise the absent arrestee of the intent to search or require that police endeavor to obtain the arrestee’s consent. It would appear, therefore, that Matlock compels affirmance.

Prophet asserts his situation is distinguishable from Matlock in two significant ways: first, the rationale of Matlock must be reconsidered in light of the United States Supreme Court’s recent decision in Randolph; and second, unlike the officer in Matlock, the officer in the instant case did in fact return to the patrol car to speak with Prophet prior to beginning the search, and, at that time, could and should have advised Prophet of the impending search and secured his consent. Prophet contends the officer’s failure to do so renders unreasonable the subsequent search. The rationale of Matlock and Randolph, however, reveals that Prophet’s argument is without merit.

Matlock involved two co-tenants, one present at the residence and consenting to the search, the other physically absent from the residence (and not consenting or objecting). The Matlock Court left for another day the question of whether police may conduct a search of the premises where both residents are present, one consenting to the search and the other objecting to the search.

In Georgia v. Randolph, the Court answered that question in the negative:

[A] warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.

547 U.S. at 120, 126 S.Ct. 1515 (emphasis supplied). In order for Randolph to be applicable to the instant case, Prophet would have to have been “physically present” at the residence and voiced an “express refusal of consent.” Instead, the record establishes that Prophet was not physically present at the house, but handcuffed in the back of a patrol car, voicing no objection to the search.

Prophet does not attempt to argue that the record establishes otherwise. Instead, Prophet asserts that the trial court erred in concluding that the police officer’s actions in this case were reasonable based upon a finding that it would have been “impractical” for Officer Creelman to return to the patrol car to obtain Prophet’s consent prior to the search. Prophet contends that, because Officer Creelman did in fact return to the patrol car to speak with him prior to the search, it was unreasonable not to secure his consent at that point. In making this argument, Prophet urges this court to apply a “reasonableness” analysis to the rule announced in Randolph.

While we recognize that reasonableness is the traditional foundation of Fourth Amendment jurisprudence, the Supreme Court was explicit in explaining that the rule in Randolph is intended as a bright line, rendering irrelevant any consideration of the practical or impractical nature of locating a physically absent co-tenant:

Although the Matlock defendant was not present with the opportunity to object, he was in a squad car not far away.... If [Matlock is] not to be undercut by today’s holding, we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.
... [T]here is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it.... [W]e think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received_[E]v-ery co-tenant consent case would turn into a test about the adequacy of the police’s efforts to consult with a potential objector. Better to accept the formalism of distinguishing Matlock from this case than to impose a requirement, time-consuming in the field and in the courtroom, with no apparent systemic justification.

Id. at 121-22, 126 S.Ct. 1515 (emphasis supplied).

Although the trial court did find it would have been impractical for Officer Creelman to return to the patrol car to obtain Prophet’s consent prior to the search, we need not address whether such a determination is supported by the record or whether the failure to obtain Prophet’s consent under the circumstances was reasonable. As the Supreme Court makes clear, such considerations are unnecessary in light of the bright-line rule established by Randolph. The United States Supreme Court has decided as a matter of law that a police officer who has obtained a valid consent from a physically present tenant does not act unreasonably by conducting a search of the shared premises without obtaining consent from a physically absent, but nearby, co-tenant.

Affirmed.

KLEIN and GROSS, JJ., concur.

      . By reason of the 1982 amendment to article I, section 12, of the Florida Constitution, Florida courts are bound to follow the United States Supreme Court's interpretations of the Fourth Amendment and to provide no greater protection than those interpretations. This amendment brought the state's search and seizure laws into conformity with all decisions of the United States Supreme Court rendered prior and subsequent to adoption of that amendment. Perez v. State, 620 So.2d 1256 (Fla.1993); Bernie v. State, 524 So.2d 988 (Fla.1988).

      . Of course, if the police placed Prophet in the patrol car to prevent him from being physically present to object to the search of the home, this could provide a basis for relief. However, there is nothing in the record to suggest the police acted with an improper or pretextual motive. As the Supreme Court stated in Randolph: "So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection,” 547 U.S. at 121, 126 S.Ct 1515, the valid consent of a physically present co-tenant is sufficient to authorize the warrantless search.


text:
    Victor PEEL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3119.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

For the third degree felony of burglary of a structure, Victor Peel, Jr. was sentenced as a habitual felony offender to 10 years in prison. On a grand theft charge, he was sentenced as a habitual offender to five years consecutive to the sentence on the burglary charge. Peel filed a motion to correct sentencing error, which was considered denied because the trial court did not rule on the motion. See Fla. R.Crim. P. 3.800(b)(1)(B). This sentence is contrary to Hale v. State, 630 So.2d 521 (Fla.1993); see also Fuller v. State, 867 So.2d 469 (Fla. 5th DCA 2004) (holding that under Hale, a non-habitual offender sentence cannot run consecutively to an habitual offender sentence that exceeded the statutory maximum for the degree of felony subject to enhanced sentencing); Kiedrowski v. State, 876 So.2d 692, 693 (Fla. 1st DCA 2004) (same). We remand to the circuit court for appellant to be resentenced to a five-year term concurrent with the sentence on the burglary charge.

WARNER, FARMER and GROSS, JJ., concur.