author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. Rico Shandel YOUNG, Appellee.
    No. 2D05-4357.
    District Court of Appeal of Florida, Second District.
    July 14, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Judge.

The State of Florida appeals from the postconviction court’s order vacating Rico Shandel Young’s judgment and sentence and granting him a new trial on the charge of armed burglary of a conveyance. Mr. Young alleged that his counsel was ineffective for failing to object to the jury instructions or to request that the trial court instruct the jury on the necessarily lesser-included offense of simple burglary. Because the postconviction court inappropriately granted rehearing of an earlier order denying relief on this ground and neglected to examine whether Mr. Young was prejudiced by his counsel’s alleged errors, we reverse and remand for reinstatement of the judgment and sentence.

After Mr. Young unsuccessfully appealed his convictions and sentences for armed burglary of a conveyance, grand theft of a firearm, and resisting a law enforcement officer without violence, he filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Among other allegations, Mr. Young challenged his attorney’s failure to insure that the jury was instructed on the necessarily lesser-included offense of simple burglary. After holding an evidentiary hearing, Judge Jack Espinosa Jr. denied Mr. Young’s motion on all grounds, specifically finding that counsel was not ineffective for failing to request the instruction or object to its omission because the jury found Mr. Young guilty of every element of the offense of armed burglary of a conveyance. Judge Espinosa noted that the State proved its case beyond a reasonable doubt, and Mr. Young did not demonstrate “even a substantial probability” that the jury would have returned a guilty verdict on the lesser-included offense. The court also found that Mr. Young had failed to meet the second prong of the Strickland, test. In support of the conclusion that Mr. Young’s motion lacked merit, Judge Espi-nosa cited Sanders v. State, 847 So.2d 504 (Fla. 1st DCA 2003), review granted, 905 So.2d 892 (Fla.2005).

Mr. Young did not appeal the denial of his postconviction motion. He did, however, file a motion for rehearing, pointing out that decisions from this court conflicted with Sanders; in fact, the First District’s en banc decision certified conflict with this court and others on the facial sufficiency of a postconviction motion asserting ineffective assistance of counsel in failing to request certain jury instructions or in objecting to their omission. A new judge assigned to the division handling Mr. Young’s case, Judge Wayne S. Timmer-man, granted rehearing and held a nonevi-dentiary hearing on this sole ground. After consideration of the parties’ arguments and review of the case law, Judge Timmer-man vacated Mr. Young’s judgment and sentence and ordered a new trial because he was “unable to conclusively refute the Defendant’s allegation that he was entitled to a jury instruction for Simple Burglary.” We agree that Mr. Young was entitled to a jury instruction for simple burglary; however, that fact alone cannot obviate adherence to the stringent standards for proving prejudice in a motion for postconviction relief premised upon the ineffective assistance of trial counsel.

The First District in Sanders, 847 So.2d at 504, and this court in Newton v. State, 527 So.2d 876 (Fla. 2d DCA 1988), addressed summary denials of postconviction motions. Newton held that an allegation of ineffective assistance of trial counsel for failure to request an instruction on a necessarily lesser-included offense is facially sufficient; Sanders, to the contrary, held that such a claim is not even colorable in a rule 3.850 motion. In this case, however, the first postconviction court correctly followed the precedent of this court and held an evidentiary hearing on this issue.

Mr. Young’s trial counsel did not testify at the hearing, but Mr. Young claimed that he never gave his lawyer permission not to ask for an instruction on simple burglary. Although our record in this case is limited, it appears that the State established at trial that the victim discovered Mr. Young holding a screwdriver and hammer near the trunk of his car. One of the car windows had been smashed, and the interi- or was rifled. A handgun that the victim kept in the glove compartment was missing. No witnesses actually saw Mr. Young inside the car, nor did fingerprints or other physical evidence link him to the crimes. At the postconviction relief hearing, Mr. Young explained his theory of the case — that the victim knew him from the neighborhood and assumed that he had committed the crimes when in fact he was only an innocent bystander — but his trial counsel insisted on pursuing a misidentifi-cation defense because the crime occurred late at night.

Mr. Young, who was represented by new counsel at the postconviction hearing, never articulated how an instruction on simple burglary would have benefited his ease. His evidence demonstrated only that he and his counsel had a difference of opinion on strategy, which might have informed counsel’s thinking concerning the jury instructions. The record of the charge conference was not attached to the order denying relief, but the instructions were attached. Simple burglary was not included, but the jury was instructed on armed trespass and trespass in a conveyance as lesser offenses of armed burglary of a conveyance.

Given 'this insubstantial evidence, the first postconviction court correctly denied relief. A question remains whether Mr. Young actually established that his counsel’s performance was deficient. Nevertheless, the first postconviction court expressly found that Mr. Young had not proved that he was prejudiced by his counsel’s alleged ineffectiveness, and the court cited the Strickland prejudice analysis from Sanders to emphasize its decision. In Sanders, the First District held that there was not “even a substantial possibility” that a jury would have found the defendant guilty of the lesser-included offense because to do so would require the jury to ignore its own findings of fact and the trial court’s instructions on the law — in essence, to grant the defendant a jury pardon. Sanders, 847 So.2d at 507 (quoting Hill v. State, 788 So.2d 315, 319 (Fla. 1st DCA 2001)).

On rehearing, the second postcon-viction court was apparently swayed by the defendant’s argument that failure to instruct on a necessarily lesser-included offense, if requested, constitutes per se reversible error on direct appeal. See Miller v. State, 870 So.2d 15, 17 (Fla. 2d DCA 2003) (citing State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978); Cox v. State, 618 So.2d 291 (Fla. 2d DCA 1993)). Assuming that the instruction was omitted due to counsel’s incompetence rather than strategy, counsel’s deficient performance arguably deprived Mr. Young of the ability to raise the issue on appeal. But that is not the standard for determining prejudice under Strickland. Rather, a postcon-viction court must consider whether its confidence in the outcome has been so undermined that there is a reasonable probability that, but for counsel’s deficiencies, the results of the proceeding would be different. 466 U.S. at 694, 104 S.Ct. 2052. The Strickland Court emphasized that “the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Id. at 669, 104 S.Ct. 2052. Furthermore, the potential for a jury pardon should not divert the postconviction court’s attention:

In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like. A defendant has no entitlement to the luck of a lawless decision-maker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.

Id. at 694-95, 104 S.Ct. 2052.

The theory of entitlement to a potential jury pardon is largely responsible for the rule requirement that trial courts instruct on necessarily lesser-included offenses, if requested, or risk reversal on appeal in the face of a jury’s finding of guilt on the greater charge. See Mosley v. State, 482 So.2d 530, 531-32 (Fla. 1st DCA 1986). “The jury pardon concept has become ingrained in the rules of criminal procedure relating to determination of degree of offense and determination of attempts and lesser included offenses.” Vickery v. State, 869 So.2d 623, 625-26 (Fla. 5th DCA 2004) (Sawaya, C.J., concurring) (citing Fla. R.Crim. P. 3.490, 3.510(b)). “A jury pardon, however, is essentially ‘a not guilty verdict rendered contrary to the law and evidence’ and is an aberration.” Willis v. State, 840 So.2d 1135, 1138 (Fla. 4th DCA 2003) (Klein, J., concurring) (quoting State v. Wimberly, 498 So.2d 929, 932 (Shaw, J., dissenting)). In the postconviction context, the jury-pardon concept has little viability.

When the second postconviction court entered its order, this court had not issued its en banc decision in State v. Bouchard, 922 So.2d 424 (Fla. 2d DCA 2006), which held that even if an attorney’s failure to preserve an issue for appellate review falls below the standard of reasonable competence, the defendant must nevertheless demonstrate that the attorney’s failure to object was inexcusable and that there is a reasonable possibility that the outcome of the trial would have been different if the objections had been made. In Bouchard, we receded from Van Loan v. State, 872 So.2d 330 (Fla. 2d DCA 2004), a case on which Mr. Young’s counsel relied at the nonevidentiary hearing before the second postconviction court. Van Loan held that the defendant was entitled to postconviction relief for counsel’s failure to object to an error which, if preserved, would have entitled the defendant to reversal on direct appeal. However, the court in Van Loan failed to conduct a meticulous prejudice analysis.

Ironically, in Bouchard, this court quoted Sanders extensively and favorably on the vastly divergent standards for finding reversible error on direct appeal and prejudice in the postconviction context:

Significantly, the test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance. There are different tests because, once a conviction becomes final, a presumption of finality attaches to the conviction.... [T]he test for prejudice on direct appeal is the harmless error test ... under which trial court error will result in reversal unless the prosecution can prove “beyond a reasonable doubt” that the error did not contribute to the verdict obtained. Conversely, however, as explained in Strickland, prejudice may be found in a collateral proceeding in which ineffective assistance of counsel is claimed only upon a showing by the defendant that there is a “reasonable probability” that counsel’s deficient performance affected the outcome of the proceeding.

Bouchard, 922 So.2d at 428-29 (quoting Sanders, 847 So.2d at 506-07) (citations omitted). Here, Mr. Young was given an opportunity but failed to demonstrate a reasonable probability that his attorney’s allegedly deficient performance so permeated the trial proceeding that the court’s confidence in the outcome was undermined. In a similar appeal from the denial of a motion for postconviction relief after an evidentiary hearing, the Fourth District, in Johnson v. State, 855 So.2d 1157, 1160 (Fla. 4th DCA 2003), recognized that it had certified conflict with Sanders but nevertheless held that even though it was “conceivable” that a jury would decline to follow the law and grant a pardon, the probability was not “reasonable.”

That probability is far less than “reasonable” in this case given the jury’s guilty verdict on the charge of grand theft of a firearm. Nothing in the record before us (which is admittedly slim) suggests that the object of the grand theft was anything other than the firearm with which Mr. Young became armed during the course of the burglary of the vehicle. Thus, as the first postconviction court concluded, the State proved armed burglary beyond all reasonable doubt, rendering any error in the jury instructions harmless.

In sum, the first postconviction court correctly cited the Sanders rationale for the principle that the defendant must actually prove prejudice. This enormous barrier to postconviction relief cannot be overcome by mere speculation that the jury would have ignored its own fact findings and the judge’s legal instructions to find the defendant guilty of a lesser offense.

Reversed and remanded for reinstatement of the judgment and sentence.

ALTENBERND and WHATLEY, JJ., Concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Newton v. State, 527 So.2d 876 (Fla. 2d DCA 1988); Peffley v. State, 766 So.2d 418 (Fla. 4th DCA 2000); Oehling v. State, 659 So.2d 1226 (Fla. 5th DCA 1995). Other cases that conflict with Sanders include Vickery v. State, 869 So.2d 623 (Fla. 5th DCA 2004); and Willis v. State, 840 So.2d 1135 (Fla. 4th DCA 2003).

      . Neither party raised, either on appeal or during the proceedings below, any concern about the propriety of a successor judge entertaining the motion for rehearing. Therefore, we will not address this matter.

      . See Willis, 840 So.2d at 1137.


source: Caselaw Access Project

author: FARMER, J.

license: Public Domain

text:
    Mark KOLP, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-628.
    District Court of Appeal of Florida, Fourth District.
    July 19, 2006.
    James S. Elkins of James S. Elkins, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

In a trial on three counts of attempted second-degree murder with a firearm, the State produced evidence that defendant had fired his weapon three times at two men. Both men were called to testify about the event. In the testimony of one, the following ensued:

Q. Yeah, tell the jury what you guys recovered.
A. Recovered three empty casings, which were shot, and then I think it was two more that were not shot, and they were hollow-points.
Q. What does that mean?
A That means that the centers of them were carved out. Like, usually, hollow-points are for killing, you know? If you don’t — [e.s.]

At that point defense counsel objected to this unqualified witness being allowed to offer opinion evidence as to the use of hollow-point bullets, which the trial court overruled. Later in cross-examination, defense counsel asked the same witness the following:

Q. You obviously have knowledge about firearms when you were describing the hollow-point bullets, right?
A I mean, who doesn’t know about them. You watch movies, right?

Even later in the trial, the State questioned defendant on cross-examination about hollow-point bullets as follows:

Q. Okay. And you loaded this gun with hollow-point bullets.
A Yeah, hollow-points. They’re hollow-points for a reason.
Q. So, for what reason?
A. The hollow-points are for a reason, and if I’m in my house and someone breaks in and I shoot somebody or I’m going to have to shoot somebody, I don’t want a bullet to go through that person, through the wall, and kill my son in the other room.
Q. Okay.
A That’s what a hollow-point is for.

Defendant was convicted of the three counts of attempted second-degree murder with a firearm as charged. On appeal the only issue is the admissibility of the testimony of the witness that hollow-point bullets are for killing.

Initially, we conclude that the testimony was not admissible under section 90.701, Florida Statutes (2005). In Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1994), we held that the kind of opinion testimony by lay witnesses admissible under section 90.701 is usually limited to things related to perception: e.g., “distance, time, size, weight, form and identity.” 646 So.2d at 748-49. The testimony about the purpose of hollow-point bullets is none of these things. The testimony is properly characterized as speculative. Allowing this testimony from the witness that the purpose of hollow-point bullets is only for killing was therefore error, but the issue is whether it prejudiced the outcome.

Defendant testified at trial. He said that he was visiting the house where his 14-year old daughter was living with his former fiancée. He had just learned that a man he knew to be a violent, crack cocaine addict was also staying in the house. He said that he has had a permit to carry a firearm as a concealed weapon for 12 years and that he is a very good shot with a pistol. He wore the pistol that night in his shoulder holster because he would be riding his motorcycle into the western part of the county. When the altercation began, the man he knew to be violent came at him with a knife. The other man told the knife-wielder to “finish it.” Defendant then purposefully fired two shots into the air to warn them off but, because the pistol has a “hair” trigger, accidentally discharged a third shot. After retreating into the house for a moment and then reappearing, the man he believed violent grabbed his hand with the gun, while the other man grabbed him around the neck. The three wrestled on the ground, and one of them took the gun from Ms hand. Defendant then left.

The testimony of the two men was decidedly to the contrary, portraying defendant as the aggressor. The witness testifying about the purpose of hollow point bullets was one of those two men. If believed by the jury, their testimony was enough to convict defendant of firing his weapon at the two men in an effort to cause mortal injury.

The charge was attempted second-degree murder, so purpose and intent and motive were everything. Was defendant attempting to defend himself against the aggression of the two men, thus using his weapon merely to warn them off? The jury was left with a pure credibility issue as to subjective intent, for the essence of the charge against defendant related to his motive in firing his weapon. The outcome turned on all the tangible and intangible factors affecting whom the jury should believe.

It is impossible to find beyond a reasonable doubt that this testimony had no effect on the jury prejudicial to defendant. See Goodwin v. State, 751 So.2d 537, 540 (Fla.1999) (harmless error analysis requires appellate courts first to consider nature of error and then any effect error had on trier of fact). We cannot say with any certainty that the error in admitting the testimony about the purpose of hollow-point bullets was harmless.

Reversed.

STONE and MAY, JJ., concur.


author: WARNER, J.

text:
    Luis ROSARIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-614.
    District Court of Appeal of Florida, Fourth District.
    July 19, 2006.

      Jonathan S. Friedman of Jonathan S. Friedman, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Luis Rosario, challenges the trial court’s denial of his motion for post-conviction relief from his conviction of carrying a concealed weapon by a convicted felon. In that motion, he claimed that trial counsel was ineffective in failing to request a jury instruction defining “deadly weapon,” because the weapon he carried was a “bread knife.” The trial court summarily denied relief. We conclude that even if an instruction should have been given, appellant has not shown that, but for counsel’s error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We therefore affirm.

Officers encountered Rosario when they responded to a BOLO for a Latin male wearing dark colored shorts and a leather jacket. During cross examination, the testifying officer revealed that the BOLO was a result of a report of an aggravated battery with a knife. The officers observed Rosario, who matched this description, and they attempted to stop him. Rosario began to run away. During the chase, an officer observed him throw a long, skinny object. The officer was able to detain Rosario and recover the object — a knife approximately fourteen inches in length with an eight-inch blade. Later, Rosario admitted to the officers that he had possessed the knife and that he was carrying it for protection from a person of whom he was afraid. At trial only the officer testified. Rosario called no witnesses, nor did he testify.

The issue of the deadliness of the weapon was fully addressed during closing arguments. Rosario’s counsel maintained the knife was a common household item, telling the jury “that’s a decision you have to make, is was this a deadly weapon.” He explained that the jury instruction would not mention “bread knife” or “serrated-edged knife.” Counsel maintained that this was simply a bread knife and not a deadly weapon.

The prosecutor took up the weapon issue in his closing argument. He said,

The question you have to answer as to whether this is a weapon is, can it be used in a way, not was it used in a way, can it be used in a way that could cause serious injury or death. Can a knife with a blade that’s eight to nine inches long be used in a way that could cause death.... If you think it’s not possible for this knife to be used by anybody in any manner to seriously injure or kill somebody, well maybe it is just a bread knife then.

Thus, the jury was well aware of its obligation to determine that the knife Rosario carried must be a deadly weapon and not a mere common household object. Unlike both Nystrom v. State, 777 So.2d 1013 (Fla. 2d DCA 2000) and McNeally v. State, 884 So.2d 494 (Fla. 5th DCA 2004), where the defendants carried household utensils and readily offered an innocent explanation for their presence, here Rosario admitted that he was carrying the knife for protection, not for normal culinary pursuits. The jury was able to examine the knife and come to a conclusion as to whether it was capable of inflicting serious bodily injury or death. Had a jury instruction on “deadly weapon” been read to the jury, its language would have been similar to what the prosecutor told the jury to consider in determining whether the knife was a deadly weapon. See Moore v. State, 903 So.2d 341, 342 (Fla. 1st DCA 2005)(noting that a deadly weapon is “one likely to produce death or great bodily injury”).

Under these facts, no Strickland prejudice has been shown. There is no reasonable probability that the outcome would have been different or that confidence in the outcome has been undermined by the failure of the court to read the deadly weapon definition to the jury.

Affirmed.

TAYLOR and MAY, JJ., concur.


author: PER CURIAM.

text:
    Patrick CRAIG, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1292.
    District Court of Appeal of Florida, Fourth District.
    July 19, 2006.
    Patrick Craig, Bowling Green, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse and remand the order denying appellant’s Florida Rule of Criminal Procedure 3.800(a) motion for the attachment of portions of the record that conclusively refute the appellant’s claims or for any other appropriate relief. See Martone v. State, 922 So.2d 404 (Fla. 4th DCA 2006).

FARMER, GROSS and HAZOURI, JJ., concur.


author: STRINGER, Judge.

text:
    Mario RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2741.
    District Court of Appeal of Florida, Second District.
    July 19, 2006.

      Mario Rodriguez, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Beehard, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Mario Rodriguez appeals the postconvietion court’s order summarily denying his four-claim motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record attachments and the court’s rationale do not conclusively refute his claims, we reverse.

Rodriguez was charged in case number 89-4852 with violating probation and in case number 01-2298 with four hundred counts of possessing material containing sexual conduct by a child in violation of section 827.071(5), Florida Statutes (2001). On September 30, 2002, Rodriguez agreed to plead no contest to counts one through fifty in case number 01-2298 in exchange for the State’s filing a nolle prosequi to counts fifty-one through four hundred. In case number 01-2298, the trial court sentenced Rodriguez to a combination of concurrent and consecutive sentences totaling twenty years in prison and ten years on probation. In case number 89-4852, Rodriguez admitted to violating probation and the trial court sentenced him to a twenty-year prison sentence followed by ten years’ probation to run concurrently with the sentence imposed in case number 01-2298. His judgments and sentences in case numbers 89-4852 and 01-2298 were affirmed on direct appeal. See Rodriguez v. State, 860 So.2d 422 (Fla. 2d DCA 2003) (table).

Rodriguez’s first claim in his rule 3.850 motion asserts that trial counsel failed to object when the trial court sentenced him to an upward departure sentence in case number 89-4852 without providing written reasons for the departure. Case number 89-4852 is governed by the sentencing guidelines of Florida Rule of Criminal Procedure 3.701. Rodriguez’s original sentencing guidelines score placed him in the recommended range of 7-9 years and a permitted range of 5.5-12 years in prison. Because Rodriguez violated probation, the trial court was permitted to increase his sentence by a one-cell bump, see Fla. R.Crim. P. 3.701(d)(14), which placed him in the recommended range of 9-12 years and a permitted range of 7-17 years in prison. Therefore, in order for the trial court to sentence him to twenty years in prison, it would have had to provide written reasons for the departure.

The postconviction court denied this claim as conclusively refuted by the record because a written reason was provided. Although the postconviction court is correct that a written reason was provided, the reason does not support an upward departure. Based on the record before us, the trial court’s only reason for upward departure was that Rodriguez violated probation. “[A]ny departure sentence for probation violation is impermissible if it exceeds the one-cell increase permitted by the sentencing guidelines.” Ree v. State, 565 So.2d 1329, 1331 (Fla.1990), abrogation on other grounds recognized in State v. Williams, 667 So.2d 191 (Fla.1996); Lambert v. State, 545 So.2d 838, 842 (Fla.1989). Therefore, it was incorrect for the trial court to base the upward departure on the violation of probation, and counsel was ineffective for not objecting. Because Rodriguez presents a facially sufficient claim that is unrefuted by the record attachments, we reverse. On remand, the postconviction court should either attach other portions of the record conclusively refuting Rodriguez’s claim or resentence Rodriguez to a guideline sentence in case number 89-4852. See Shull v. Dugger, 515 So.2d 748, 749 (Fla.1987) (holding that “when all of the reasons stated by the trial court in support of departure are found invalid, resen-tencing following remand must be within the presumptive guidelines”).

As to Rodriguez’s second and third claims, which appear to be facially sufficient, the postconviction court simply denied these two claims as legally merit-less without providing any supporting rationale or attaching any portions of the record. To support a summary denial of postconviction relief, the postconviction court must provide specific reasons for such denial or attach those supporting portions of the record that conclusively refute the defendant’s allegations. See Anderson v. State, 627 So.2d 1170, 1171 (Fla.1998). Therefore, we reverse for the postconviction court to either attach portions of the record conclusively refuting claims two and three or conduct an evidentiary hearing.

Rodriguez’s fourth claim is that counsel misadvised him regarding an available defense that he did not “knowingly” possess the illicit material. The postcon-viction court summarily denied this claim, finding that the claim was “merely an attempt to relitigate the sufficiency of the evidence presented but recast as an ineffective assistance of counsel claim.” This was error. Counsel’s misadvice concerning available defenses during the plea process can give rise to ineffective assistance of counsel claims. See Grosvenor v. State, 874 So.2d 1176 (Fla.2004); Brunson v. State, 605 So.2d 1006, 1007 (Fla. 1st DCA 1992). Therefore, we reverse for the post-conviction court to attach portions of the record conclusively refuting Rodriguez’s fourth claim or conduct an evidentiary hearing. Anderson, 627 So.2d at 1171.

Reversed and remanded for further proceedings.

SILBERMAN and CANADY, JJ„ Concur.


text:
    Waverly FUTRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3199.
    District Court of Appeal of Florida, Fourth District.
    July 19, 2006.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Robinson v. State, 373 So.2d 898, 902 (Fla.1979).

STONE, KLEIN and MAY, JJ., concur.


text:
    Delrio Laviel ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4092.
    District Court of Appeal of Florida, Fourth District.
    July 19, 2006.

      Alexander R. Brumfield, III of Alexander R. Brumfield, III, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFranee, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, without prejudice to raise issue II in a rule 3.850 motion.

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


author: SHAHOOD, J.

text:
    Timothy Louis EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3935.
    District Court of Appeal of Florida, Fourth District.
    July 19, 2006.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

We affirm the convictions of appellant, Timothy Evans, on the charges of grand theft, two counts of giving false information to a pawnbroker, and two counts of dealing in stolen property following a trial by jury. Appellee, State of Florida, concedes, and we agree, appellant’s orders of probation must be corrected to conform with the oral pronouncement of the trial court. Where there is a discrepancy between an oral pronouncement and a written sentence, the case must be remanded for the trial court to conform the written sentence to the oral pronouncement. Upon remand, appellant need not be present for the correction of sentence. See Frost v. State, 769 So.2d 443 (Fla. 1st DCA 2000).

Affirmed; Remanded.

FARMER and TAYLOR, JJ., concur.


author: SALCINES, Judge.

text:
    Sammy Lee ROWE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-233.
    District Court of Appeal of Florida, Second District.
    July 19, 2006.
   SALCINES, Judge.

Sammy Lee Rowe appeals the summary denial of his motion for jail credit filed under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand with instructions.

Rowe filed a motion for jail credit in circuit court case CF04-875 alleging entitlement to 197 days’ jail credit for time spent in Highlands County Jail from September 14, 2004, to March 30, 2005. The postconviction court denied the motion on the merits. However, Rowe’s motion is facially insufficient. See Fla. R.Crim. P. 3.800(a); see also Stathas v. State, 852 So.2d 881 (Fla. 2d DCA 2003) (holding that petitioner’s claim that he was entitled to jail time credit was facially insufficient where petitioner failed to allege that court records demonstrate his entitlement to additional jail credit). Therefore, we reverse the order denying the rule 3.800(a) motion and remand for entry of an order of dismissal without prejudice to any right Rowe may have to file a facially sufficient motion for jail credit pursuant to rule 3.800(a). See Harper v. State, 905 So.2d 280 (Fla. 2d DCA 2005). Such motion shall not be considered successive.

Reversed and remanded with instructions.

KELLY and WALLACE, JJ„ Concur.


author: VILLANTI, Judge.

text:
    Herb LEVINE, Appellant, v. George HUNT, Appellee.
    No. 2D05-1872.
    District Court of Appeal of Florida, Second District.
    July 19, 2006.

      Peter S. Baranowiez of Peter S. Bara-nowiez, P.A., Osprey, for Appellant.
    Andrew Froman and Brett M. Sarason, Sarasota, for Appellee.
   VILLANTI, Judge.

Herb Levine appeals an order dismissing his suit against George Hunt with prejudice. We reverse and remand for further proceedings.

Herb Levine was arrested for trespass after warning, disturbing a lawful assembly and resisting arrest without violence at a Venice City Council Meeting. George Hunt, the city manager, was in attendance at the meeting. Subsequent to Levine’s arrest, the State Attorney investigated but declined to file formal charges. Levine then filed a three-count second amended complaint against Hunt and several others. This appeal involves only one of the defendants — George Hunt. The only count directed to Hunt was count three which alleged a claim based upon malicious prosecution. During the course of pretrial motions, the complaint as to Hunt was dismissed with prejudice based on the trial court’s erroneous conclusion that an arrest alone was not enough to trigger the first element of malicious prosecution.

Malicious prosecution is a common law cause of action consisting of six essential elements: (1) the commencement or continuation of an original civil or criminal judicial proceeding; (2) legal causation of the prosecution by the present defendant against the plaintiff; (3) the bona fide termination of the original proceeding in favor to the present plaintiff; (4) the absence of probable cause for prosecution of such proceeding; (5) the presence of malice; and (6) damages resulting to the plaintiff. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla.1994).

At oral argument Hunt’s counsel conceded that an arrest without further prosecution can constitute a basis for malicious prosecution. See, e.g., Jackson v. Biscayne Med. Ctr., Inc., 347 So.2d 721 (Fla. 3d DCA 1977) (complaint stated a valid cause of action for malicious prosecution when plaintiff alleged that defendant procured his arrest). Under the facts alleged in the complaint, it is clear that Levine’s criminal proceeding commenced with his arrest at the city council meeting. Thus, the State Attorney’s subsequent declination to prosecute did not affect, as a matter of law, the presence of the first element.

Because the trial court’s dismissal with prejudice was based upon an erroneous legal assumption that an arrest without further prosecution could not support a claim for malicious prosecution, we reverse and remand for further proceedings. During oral argument, Levine’s attorney expressed a desire to amend or take a voluntary dismissal. This opinion makes no comment as to whether Levine can allege sufficient facts to support a cause of action against Hunt — only that at this juncture his second amended complaint should not have been dismissed with prejudice. Accordingly, we reverse the trial court’s order of dismissal with prejudice and remand to the trial court for further proceedings.

Reversed and remanded.

FULMER, C.J., and NORTHCUTT, J., Concur.


text:
    Jessie MILTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-179.
    District Court of Appeal of Florida, Fifth District.
    June 14, 2005.
   BY ORDER OF THE COURT:

In accordance with the May 27, 2005, Mandate and instructions of the Florida Supreme Court by Opinion filed March 17, 2005, it is

ORDERED that the previous mandate and opinion of this Court rendered in this cause are withdrawn. Moreover, the November 18, 2002, order of the Volusia County Circuit Court denying post-conviction relief is Reversed and the cause is remanded for further proceedings consistent with the Opinion of the Supreme Court.


text:
    William W. GRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2955.
    District Court of Appeal of Florida, Third District.
    March 8, 2006.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   ON MOTION FOR REHEARING GRANTED

PER CURIAM.

William W. Graham seeks rehearing of this court’s opinion issued on September 21, 2005. We grant rehearing, withdraw our previous opinion and substitute the following opinion in its place.

This court has previously held that the offense of battery on a law enforcement officer does not necessarily involve the use or threat of use of physical force or violence. That offense, without proof that it is one of the forcible felonies enumerated in section 776.08, Florida Statutes or that it was committed with physical force or violence, cannot be used as a qualifying offense for purposes of sentencing as a violent career criminal. § 775.084(1)(d)l.a and § 776.08, Fla. Stat. (2003); see Hearns v. State, 912 So.2d 377 (Fla. 3d DCA 2005); Johnson v. State, 858 So.2d 1071 (Fla. 3d DCA 2003); Hudson v. State, 800 So.2d 627 (Fla. 3d DCA 2001). We explained in those cases that the problem with using the offense of battery on a LEO as a qualifying offense is that it might not be a forcible felony: battery can be accomplished by mere touching, without the use or threat of use of physical force or violence. See also Perkins v. State, 576 So.2d 1310 (Fla.1991). As the “forcible felony” language used in the prison releas-ee reoffender statute is identical to that of the violent career criminal statute, see section 775.082(9)(a)l.o, Florida Statutes (2003), the same reasoning applies. We thus reverse and remand for resentencing in accordance with this opinion.

We also certify direct conflict with Jenkins v. State, 884 So.2d 1014 (Fla. 1st DCA 2004), Brown v. State, 789 So.2d 366 (Fla. 2d DCA 2001), Spann v. State, 772 So.2d 38 (Fla. 4th DCA 2000).

Reversed and remanded; conflict certified.


author: LaROSE, Judge.

text:
    Miguel Angel COLON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5448.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.
    Rehearing Denied May 30, 2006.
   LaROSE, Judge.

Miguel Angel Colon challenges the post-conviction court’s summary denial of his motion for relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The records attached to the postconviction court’s order do not conclusively refute claim nine of Mr. Colon’s motion. Consequently, we reverse and remand as to this claim. We affirm, without further comment, all other aspects of the posteonviction court’s denial of relief.

Mr. Colon was charged with possession of cocaine, possession of cannabis, armed trafficking in heroin, conspiracy to traffic in heroin, and carrying a concealed firearm. He pleaded guilty to possession of cocaine and possession of cannabis. A jury convicted him of the other offenses. The trial court sentenced Mr. Colon to five concurrent ten-year prison sentences.

In claim nine of Ms rule 3.850 motion, Mr. Colon contends that his trial counsel was ineffective for failing to object to the trial court accepting his guilty plea to possession of cocaine and possession of cannabis. According to Mr. Colon, at the time of his plea, he suffered from a mental defect and was taking psychotropic medications. Allegedly, his trial counsel knew of these facts. Mr. Colon argues that his plea was involuntary under these circumstances. This claim is facially sufficient. See Szeremi v. State, 862 So.2d 935, 936 (Fla. 2d DCA 2004); Robinson v. State, 909 So.2d 497, 499 (Fla. 5th DCA 2005); Mosley v. State, 888 So.2d 734, 734 (Fla. 1st DCA 2004).

The postconviction court denied claim nine as conclusory, without attaching any record attachments conclusively refuting the claim. On remand, the postconviction court should attach to any subsequent order any records that conclusively refute Mr. Colon’s claim or conduct an evidentia-ry hearing on claim nine.

Affirmed in part, reversed in part, and remanded.

SALCINES and SILBERMAN, JJ., Concur.


text:
    STATE of Florida, Appellant, v. L.L., Appellee.
    No. 2D05-71.
    District Court of Appeal of Florida, Second District.
    April 21, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appellant.
    No appearance for Appellee.
   LaROSE, Judge.

L.L. pleaded guilty to the charge of battery on a teacher, a school board employee. The trial court withheld adjudication. The trial court also ruled that L.L. was not required to provide a DNA sam-pie. The State appeals that ruling. Section 943.325, Florida Statutes (2004), requires DNA testing of persons convicted of forcible felonies. L.L. used force in committing the offense. Consequently, we must reverse.

Section 943.325 requires blood or other biological specimen testing for DNA analysis of “/a]ny person who is convicted ... [for] any forcible felony, as described in s. 776.08 ....” § 943.325(l)(a), (b)(4) (emphasis added). “Any person ” includes juveniles under Department of Juvenile Justice (DJJ) supervision. § 943.325(l)(c). L.L. falls within this category because the trial court ordered him to complete a DJJ-supervised juvenile arbitration program.

“Convicted” in the case of a juvenile includes a finding of guilt or a plea of guilty, regardless of adjudication of delinquency. § 943.325(10)(d). Although the trial court withheld adjudication, L.L. pleaded guilty to the charged offense. “Forcible felony ” includes:

treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

§ 776.08, Fla. Stat. (2004) (emphasis added).

Battery on a school board employee is a third-degree felony. § 784.081(2)(e), Fla. Stat. (2004). The record establishes that L.L. used physical force against a teacher. Indeed, L.L. “shoved and pushed using his body, pushing [the victim] backwards while [the] victim tried to protect the class from [L.L.].” Thus, L.L.’s offense, to which he pleaded guilty, falls within the ambit of section 943.325 and L.L. must provide a DNA sample.

Reversed.

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


author: BENTON, J.

text:
    Richard Allen BECK, M.D., Appellant, v. Richard HOLLOWAY, and Kim Holloway, his wife, Appellees.
    No. 1D04-2623.
    District Court of Appeal of Florida, First District.
    April 27, 2006.
    Rehearing Denied July 10, 2006.

      Ronald S. Wasilenko, Esquire and Samuel Scott Ross, Esquire of Gobelman, Love, Gavin, Blazs & Wasilenko, Jacksonville and Mark Hicks, Esquire and Dinah Stein, Esquire of Hicks & Kneale, P.A., Miami, for Appellant.
    Gregory W. Lineberry, Esquire and Eric S. Block, Esquire of the Law Offices of Eric S. Block, P.A., Jacksonville and Michael J. Korn, Esquire of Korn & Zeh-mer, P.A., Jacksonville, for Appellees.
   BENTON, J.

Richard Allen Beck, an otolaryngologist, appeals the final judgment entered in the medical malpractice case Richard and Kim Holloway brought against him. We affirm the judgment insofar as it rejects his statute of limitations defense, but reverse and remand for a new trial on damages.

Five days after Dr. Beck operated to remove polyps from Richard Holloway’s sinuses, Mr. Holloway was diagnosed with meningitis attributed to streptococcus pneumoniae. Dr. Beck told Mr. Holloway and his wife that microorganisms must have reached his meninges (membranes surrounding the brain) through “natural cracks” in his skull, openings which must have subsequently healed shut because he could see no evidence of continued leakage.

Some two years later, once again afflicted with meningitis, he was admitted to a different hospital. This time he was attended by Napoleon G. Bequer, who ordered radiological studies. Dr. Bequer concluded that Mr. Holloway had contracted meningitis on account of defects in the left cribriform plate and the right fovea ethmoidalis, holes which created pathways in his skull through which sinus infections could spread into the brain cavity. His protestations at trial notwithstanding, the jury was entitled to conclude that Dr. Beck’s negligence while operating was responsible for the intracranial connection, and the meningitis that ensued.

As a result of his initial bout with meningitis, Mr. Holloway left the hospital with disequilibrium, paralysis on the left side of his face, and hearing loss in his left ear. Fortunately, Mr. Holloway suffered no additional, permanent ill effects from the second episode of meningitis. Before discharging Mr. Holloway from the hospital, Dr. Bequer corrected the iatrogenic defects surgically.

I.

On July 6, 2001, Mr. Holloway and Kim Holloway, his wife, filed suit against Dr. Beck and Advanced Otolaryngology Services, P.A., on account of the surgery Dr. Beck had performed on June 18, 1997, and his handling of the case thereafter. Dr. Beck set up the statute of limitations as a defense, and moved for summary judgment on that basis. See § 95.11(4)(b), Fla. Stat. (1997) (requiring that an action for medical malpractice be brought “within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence”).

The trial court denied the motion for summary judgment, and submitted the Holloways’ claims to the jury, along with the question of their timeliness. See Tanner v. Hartog, 618 So.2d 177, 181 (Fla. 1993) (“We hold that the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice.”) (footnote omitted). The Holloways had gone to a lawyer soon after Dr. Beck operated, because they suspected nasal packing deliberately left in place (not sponges inadvertently misplaced, as they first thought) had caused the meningitis. That lawyer and a physician the lawyer consulted concluded (correctly) that leaving the packing in place had not been negligent, and did not in any event account for the meningitis, and the Holloways were so advised. Not until August of 1999, when Dr. Bequer told them about the holes Dr. Beck’s surgical instruments had made, did the Holloways have a genuine basis to suspect negligence, an “awareness of the existence of medical malpractice,” Stephens v. Bay Med. Ctr., 691 So.2d 1136, 1138 (Fla. 1st DCA 1997), founded in reasonable possibility, or so the jury had a right to decide.

Dr. Beck never informed the Holloways that he made the holes in Mr. Holloway’s skull. He told them that the holes were a “ ‘natural’ or non-negligent” occurrence, and so testified at trial. Tanner, 618 So.2d at 185 (Kogan, J., concurring) (“Where plaintiffs have little or no special expertise and were told that the untoward event was ‘natural’ or non-negligent, then I can envision only a few extraordinary situations in which the statute will begin to run on the date of the event itself.”); see id. at 182 (majority opinion) (“[I]f the injury is such that it is likely to have occurred from natural causes, the statute will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred.”); see also Stephens, 691 So.2d at 1138-39 (“[Wjhen confronted with the question of the plaintiffs awareness of the existence of medical malpractice, trial courts should inquire into the facts actually known to plaintiffs and the plaintiffs’ level of knowledge, education, and awareness of medical practice and what is likely to be considered a negligent act. In addition, courts must inquire into what the medical providers actually told the plaintiff about the event.”).

Accordingly, a genuine issue of material fact existed as to when the Holloways first had reason to know that Dr. Beck had negligently punctured Mr. Holloway’s skull, and the trial court properly denied Dr. Beck’s motion for summary judgment on this ground, allowing the question of when “the incident ... should have been discovered” to be determined by the jury. § 96.11(4)(b), Fla. Stat. (1997).

II.

The evidence of medical malpractice was more than sufficient. In addition, the jury found the malpractice caused damages in the amount of $2,500,983.00, and put Mr. Holloway’s lost earnings (past and future) at $762,000.00. A truck driver, Mr. Holloway testified at trial that he was no longer able to drive a truck, citing fatigue, memory loss, partial hearing loss, and an inability to bend over without falling down, all problems he attributed to his meningitis. But the jury was deprived of important information: Videotape taken in November of 2003 showed him loading and driving his eighteen-wheeler, and included footage of him bending over (without falling), kneeling, and turning and twisting while strapping down loads. Even though the defense had furnished the plaintiffs a copy of the videotape before trial, the trial judge excluded this highly relevant evidence.

The Holloways had made no discovery requests for surveillance videotapes (or any other photographs) when, four weeks before trial, Dr. Beck moved for leave to take their depositions a second time. The motion revealed that the defense had surveillance videotape in its possession; and offered to furnish the plaintiffs a copy of what it intended to offer at trial, but requested that the defense not be compelled to produce the videotape before the depositions. The trial court granted the motion, allowing additional depositions and permitting defense counsel to wait until after the depositions to provide the Hollo-ways a copy of the videotape.

Immediately after the depositions, defense counsel gave the Holloways a thirty-minute videotape of the surveillance footage Dr. Beck intended to use at trial. (The defense also listed “surveillance video” as an exhibit on the pretrial stipulation the parties filed.) Later that day the Hol-loways requested all surveillance footage, whether or not the plaintiffs intended to use the footage at trial. The following day defense counsel voluntarily furnished plaintiffs’ counsel all the footage defense counsel had: four unedited videotapes, two of which depicted Mr. Holloway, and two of which contained only “administrative time shots.”

Four days into trial, the Holloways moved to strike the “defendant’s surveillance video,” claiming that it had been disclosed too late and that blue screens between segments suggested that portions had been edited out. The court heard testimony regarding how the surveillance company received, copied and stored surveillance tapes. Robert Mirando, the defense investigator and videographer, then testified that blue screens appeared on the videotape each time he rewound the tape to review it, then ran it forward beyond the point he had left off videotaping. Mr. Mirando described the surveillance he had done of Mr. Holloway, established a chain of custody for his video camera and for the videotape, and testified that he had provided defense counsel with all of the footage he had taken of Mr. Holloway. Mr. Mir-ando’s testimony also revealed, for the first time, that another investigator had been assigned to do surveillance and had done some “administrative” videotaping, which had not been provided to counsel.

The second videographer’s footage contained nothing, however, but “administrative time shots,” street scenes he had filmed to prove that he was at a particular location at a particular time (so that he could get paid). After this evidentiary showing, defense counsel argued that the additional footage was altogether irrelevant because it contained only “administrative time shots” and not a single image of Mr. Holloway. The trial court initially reserved ruling on the motion to strike to allow counsel the weekend to ascertain whether any more videotape existed.

Over the weekend, defense counsel offered the Holloways’ counsel an opportunity to view all of the original tapes, but the offer was declined. After the weekend recess, defense counsel informed the court that there were five original, unedited videotapes, and that copies of four of them had already been provided to the Hollo-ways. The fifth, a copy of which defense counsel had delivered to the Holloways’ counsel over the weekend, contained approximately two minutes of “administrative time shots” and nothing more.

Counsel for the Holloways argued that no videotape should be allowed in evidence because they had not received the fifth original, unedited videotape before trial. In response, Dr. Beck’s counsel first asked the trial court to view the videotapes before ruling on the plaintiffs’ motion to strike. Refusing this request, the trial court ruled that the jury could not see any of the videotapes: The trial court granted the Holloways’ motion to strike the surveillance videotape, holding that the Hollo-ways had been entitled to see all of the original tapes before trial, including the fifth videotape with its two minutes of “administrative time shots.”

This was error. At no time had there ever been a formal discovery request to view any of the tapes. Compare Dodson v. Persell, 390 So.2d 704, 707 (Fla.1980) (“[UJpon request a party must reveal the existence of any surveillance information he possesses whether or not it is intended to be presented at trial.”) (emphasis supplied); id. at 708 (“[T]he seeking party must be afforded a reasonable opportunity to view the surveillance information before trial.”) (emphasis supplied).

With no showing — indeed, no possibility — of prejudice to the Holloways from the second videographer’s “administrative time shots,” there was no justification for excluding surveillance videotape the plaintiffs got a copy of the day they were deposed. See Med. Logistics, Inc. v. Marchines, 911 So.2d 823, 824 (Fla. 1st DCA 2005) (citing three factors prescribed in Linger v. King Pest Control, 401 So.2d 1310 (Fla.1981), and explaining that “a judge should not exclude the evidence if consideration of these and other relevant factors reveals that use of the evidence would not substantially endanger the fairness of the proceeding”). The videotape the defense sought to introduce in evidence had been fully disclosed, and was listed as an exhibit. Compare La Villarena, Inc. v. Acosta, 597 So.2d 336, 338 (Fla. 3d DCA 1992) (holding court may exclude use of video that was not listed as an exhibit, where opposing party was not afforded a reasonable opportunity to counter the evidence). Neither party had any intention or reason to show the jury the fifth unedited videotape containing the second videographer’s “administrative time shots.”

It was improper, moreover, for the trial court to rule, without first examining the contents of the fifth original, unedited videotape, at least. See Med. Logistics, Inc., 911 So.2d at 824 (holding “exclusion of [surveillance video] evidence is a drastic remedy which should pertain in only the most compelling circumstances and only after the judge has made a case-specific determination as to whether admission of the evidence would result in actual procedural prejudice to the objecting party”). The Holloways have never challenged the defense’s assertion that the second videog-rapher’s “administrative time shots” were the only thing on the fifth original, unedited videotape.

As a fallback position, the Hollo-ways argue that excluding the surveillance videotape was harmless error because the investigator was permitted to testify he saw Mr. Holloway loading and driving a truck. But the plaintiffs mounted a sustained and vigorous attack on the investigator’s credibility. It cannot be said that excluding the surveillance videotape, which would have corroborated the investigator’s account of what he witnessed while shooting the footage, was unlikely to have affected the outcome of the trial. Because the error went only to the extent of the Holloways’ damages, however, and not to whether Dr. Beck had committed medical malpractice, we remand for a new trial on damages only, with directions that the surveillance videotape be allowed in evidence.

Reversed and remanded, with directions.

ERVIN and DAVIS, JJ., concur.

      . Dr. Beck also contends that the trial court erred in denying his motion to bifurcate the trial and try the statute of limitations question first by itself. While Florida Rule of Civil Procedure 1.270(b) provides that a court, "in furtherance of convenience or to avoid prejudiced] may order a separate trial of any claim ... or ... issue,” separate proceedings are not required simply because there is a statute of limitations issue for the jury to determine.
        See Fla. Std. Jury Instr. (Civ.), Verdict Form 8.9. We also reject Dr. Beck’s contention that plaintiffs’ counsel’s closing argument entitles him to a new trial on the limitations defense, or that the exclusion of what proved to be cumulative evidence had any likely effect on the outcome.

      . Although the second videographer attempted additional surveillance in January of 2004, Mr. Holloway had sold his truck by then, and the efforts at additional surveillance proved unavailing. The second videographer was not listed or called as a witness. See Huet v. Tramp, 912 So.2d 336, 338 (Fla. 5th DCA 2005) (holding videotape shot by videogra-pher not called as a witness is work product and is not subject to discovery).

      . None of the “administrative time shots” depicted Mr. Holloway.


author: NORTHCUTT, Judge.

text:
    Ingrid PARRY, Appellant, v. Timothy PARRY, Appellee.
    No. 2D04-2109.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.
    Rehearing Denied June 6, 2006.

      Victoria M. Ho and Reuben A. Doupé of Asbell & Ho, P.A., Naples, for Appellant.
    Cynthia B. Hall and Mark V. Silverio of Silverio & Hall, P.A., Naples, for Appellee.
   NORTHCUTT, Judge.

The dissolution of Ingrid and Timothy Parry’s twenty-two-year marriage presented a number of complicated financial issues which, all-in-all, were ably sorted out by the trial judge. We disagree with the final judgment on several points, however, and therefore we reverse it in part.

Most of the issues on appeal concern aspects of the compensation package Tim receives in his employment. After practicing law for a number of years, in 1996 Tim began working for Health Management Associates, Inc. HMA is a publicly traded, Fortune 500 company that maintains its corporate headquarters in Naples. HMA and its subsidiaries own and operate approximately fifty-two hospitals in sixteen states. At the time of the Parrys’ divorce, Tim was the company’s executive vice president and general counsel.

According to HMA’s 1996 Executive Incentive Compensation Plan, the company has fashioned a compensation program aimed at “attracting, retaining, and rewarding high-quality executives ... and providing such persons with annual and long term performance incentives to expend their maximum efforts in the creation of shareholder value.” The plan is administered by a committee that is authorized to make various awards, including awards of restricted company stock and stock options, with sundry terms and conditions relating to time and method for exercise, transferability, and forfeiture.

The trial court had the benefit of deposition testimony from William Schoen, HMA’s chairman of the board. Schoen was also chairman of the executive committee, an ex officio member of the compensation committee, and the architect of the compensation plan. He explained that the HMA compensation plan has short-term and long-term components. The short-term compensation includes a base salary and a discretionary cash bonus program. In 2003 and 2004, for example, Tim received a yearly base salary of $250,000 gross. In addition, he had received cash bonuses every year since joining HMA. His 2003 bonus was $242,500 gross. There were also fringe benefits not at issue here.

The long-term compensation scheme comprises awards of company stock options and of shares of restricted company stock. The stock options vest a quarter at a time each year over a four-year cycle. They lapse at the earlier of ten years or the day the recipient ceases to be employed by the company. Tim had been awarded stock options in every year since he began working at HMA. The first grant vested in three years. Each subsequent grant vested according to the schedule described above.

Under HMA’s compensation program, an award of restricted stock vests in its entirety on its fourth anniversary, provided the recipient has been continuously employed by the company during the vesting period. If employment is terminated before the fourth anniversary, the stock award is forfeited. Tim was granted stock under these terms in December of every year since he joined HMA. Schoen testified that HMA recently adopted a requirement that its executives hold a certain amount of HMA stock, in Tim’s case four times his salary and bonus.

Finally, HMA has a Supplemental Executive Retirement Plan (SERP) that provides key executives with a monthly retirement benefit beginning when the executive reaches the normal retirement date, defined as the later of the executive’s attaining the age of 62 or the fifth anniversary of his or her participation in the SERP. The SERP includes a proviso that the executive may not engage in competitive activities during the payment of retirement benefits. If the executive’s employment is terminated prior to the normal retirement date, no benefits are paid under the SERP unless HMA’s board, in its sole discretion, decides otherwise.

High among Ingrid’s complaints on appeal is the trial court’s determination that the stock and stock options awarded to Tim as part of his long-term compensation were primarily intended as incentives for his future service to HMA rather than as deferred compensation for past service. But, as we pointed out in Ruberg v. Ruberg, 858 So.2d 1147 (Fla. 2d DCA 2003), determining the primary purpose of an executive compensation plan presents a question of fact. Here, the court was persuaded by such testimony as board chairman Schoen’s, which described the long-term compensation plan as “golden handcuffs,” chaining the employee to the corporation in the future in order for the employee to realize the financial benefit of the awards, and motivating the employee to enhance shareholder value by giving him a personal stake in the company’s future success. The trial court’s resolution of this issue was supported by the evidence, and we find no fault in it.

Still, the trial court was mistaken in its determination that Tim’s partially earned but unvested HMA stock and stock options were his nonmarital assets. At the time the divorce proceeding was filed, Tim had been awarded 28,756 shares of stock that remained unvested. During the marriage and up to the date of filing, he had been granted options to purchase 384,375 shares. Of these, options to purchase 204,375 shares had vested. During the divorce proceeding Tim exercised an option to purchase 14,200 shares and sold the stock to pay a joint tax obligation and to advance funds to Ingrid, leaving vested options to purchase 190,175 shares.

The trial court properly treated the vested stock and stock options as marital assets and included them in its equitable distribution scheme. But it declared that the stock and options that had been awarded but had not vested during the marriage were Tim’s nonmarital property. Thus, even though Tim performed marital labor during the vesting periods of the stock and option grants, Ingrid was not permitted to share in this aspect of the compensation Tim would eventually receive for that labor. This was error.

This court’s Ruberg decision examined the distinction between stock and option grants that are given as deferred compensation for past service and those that are awarded as incentive for future service to the employer. It is important to note that this difference in the character of such an award is not the ultimate determinant of whether it is to be classified as marital or nonmarital. Rather, the purpose of determining the character of the award is to assess how much of the asset, if any, is the product of marital labor. See § 61.075(5)(a), Fla. Stat. (2002) (defining “marital assets” to include assets acquired during the marriage). The difference, as a practical matter, is that an award that is in the nature of deferred compensation and that is granted during the marriage is usually a marital asset because it is compensation for past marital labor. On the other hand, an award given as an incentive for future service would be marital only to the extent that the service is thereafter performed before the end of the marriage. In either case, the trial court is charged with identifying and valuing the portion of the award that constitutes a marital asset. See § 61.075(3)(b).

In Ruberg this court determined that the restricted stock and stock options at issue there were given to the husband as incentives for future service. In that case, the awards vested in monthly increments. Consequently, all of the husband’s marital labor was reflected in the awards that had vested as of the end of the marriage, and none of the unvested portions of the awards were marital. Because of this, we observed that “[i]t has therefore not been necessary for us to address the appropriate methodology for allocating options that were earned before the applicable cutoff date but remained unvested.” Ruberg, 858 So.2d at 1155 n. 2. We noted examples of the “time rule” allocation method employed by courts in California. Id.

Unlike the situation in Ruberg, at the time of the cutoff date in this case there were several outstanding awards to which Tim had devoted marital labor that was yet to be compensated under the vesting schedules. Therefore, it was incumbent on the trial court to allocate and value the marital portions of those awards. While we have found no Florida cases applying a “time rule,” the method is essentially the same as the so-called “cover-ture fraction” applied by Florida courts to value future pension benefits. See Trant v. Trant, 545 So.2d 428, 429 (Fla. 2d DCA 1989). To these unvested assets, the trial court should have applied a formula, whether called a coverture fraction or time rule, to determine the portion earned by marital effort. Accordingly, we reverse the determination that all of the unvested HMA stock and stock options were Tim’s nonmarital property.

In Trant, which addressed a husband’s pension benefit in a dissolution of marriage proceeding, we explained that the fraction consists of a numerator “that is the amount of time the employee was married while participating in the plan, and the denominator is the total time the employee has in the plan.” 545 So.2d at 429. The fraction was to be multiplied by the present value of the pension, the result representing the marital portion to be equitably distributed. Id. But the formula varies depending on the facts of each case. See Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986). In this case, the numerator should represent the number of months in which marital labor was devoted to earning the .award. Here, the numerator would be the number of months between the grant date and the petition filing date. This number will vary because the awards were granted on different dates. (Consistent with our affirmance of the trial court’s determination that the awards were for future service, we reject Ingrid’s argument that the numerator should include the year prior to the grant date.) The denominator would be the total number of months in which the award was to be earned. Because all of the restricted stock awards at issue have a four-year vesting period, as to those the denominator will always be 48. Determining the denominator for the option grants is less straightforward, because one-quarter of the shares in each option vests every twelve months. Therefore, each grant would entail denominators of 12, 24, 36, and 48, each of which would apply to one-quarter of the shares in the option.

Next, Ingrid takes issue with the trial court’s valuation of the marital stocks and options that it included in the equitable distribution scheme and with the court’s method of distributing these assets. On the first question, Ingrid argues that the trial court erred by valuing the stock on the petition filing date rather than on the date of trial. See § 61.075(6) (stating that the date for determining the value of marital assets is the date “the judge determines is just and equitable under the circumstances”). The trial court determined the date of filing was the appropriate date to value these assets because their appreciation since then was “active appreciation.” It has been said that “[w]hen marital assets have appreciated passively since the filing date, the date of the final hearing generally should be used. When marital assets have appreciated due to the work efforts of either party since the filing date, the filing date should be used.” Victoria M. Ho & James Rhett Brigman, A Seven-Step Analysis of Equitable Distribution in Florida Part I: Classification and Valuation of Marital Property, 73 Fla. Bar. J. 62, 67 (May 1999). This proposition may be viewed as the flipside to the rule that the amount of a nonmarital asset’s passive appreciation is a nonmarital asset, but the amount of a nonmarital asset’s active appreciation is a marital asset. See § 61.075(5)(a)(2); Straley v. Frank, 612 So.2d 610 (Fla. 2d DCA 1992).

While not disputing the legal point, Ingrid argues that the evidence showed appreciation due to market forces, not Tim’s efforts. However, Tim presented the testimony of a financial expert with impressive credentials in accounting, public service, the business world, and specifically the health care field. The expert testified that the appreciation in value of HMA’s stock was not passive but rather was due in part to Tim’s work as a senior officer of the company. See also Lynn Curtis, Valuation of Stock Options in Dividing Marital Property Upon Dissolution, 15 J. Am. Acad. Matrim. Law. 411, 412 (noting that “these high level executives have a direct bearing on the success of the company, so in a very real sense, the increased value of the company’s stock is directly attributable to their efforts”). Therefore, we affirm the trial court’s exercise of discretion in choosing the date of valuation.

Ingrid also complains of the trial court’s decision to value the stock using a discount to reflect the lack of marketability. HMA board chairman Schoen and Tim’s financial expert both testified that the stock’s value is affected by numerous regulations and restrictions that limit Tim’s ability to sell it, warranting the application of a marketability discount. Because the evidence supported application of the discount, we discern no abuse of discretion and affirm on this point. See Williams v. Williams, 683 So.2d 1119 (Fla. 3d DCA 1996) (affirming exercise of court’s discretion in applying marketability discount because supported by expert testimony); Miller v. Miller, 662 So.2d 391 (Fla. 5th DCA 1995) (finding no abuse of discretion in trial court’s decision not to apply marketability discount when evidence showed that stock was readily marketable).

Neither do we find an abuse of discretion in the trial court’s decision to award the stock and stock options to Tim while making offsetting awards to Ingrid. “[T]he methods that the courts have used to effect distribution of the parties’ interests are almost as numerous as there are decisions regarding the treatment of options in a divorce.” Eric Hollowell, Divorce and Separation: Treatment of Stock Options for Purposes of Dividing Marital Property, 46 A.L.R.4th 640 § 2(a). As noted in the pension cases, there are different ways to effect an equitable distribution of such assets. Generally, the preferable approach entails a reduction to present value, factoring in the contingencies of vesting, maturity, and the pensioner’s mortality. Diffenderfer, 491 So.2d at 269 (noting another approach that reserves jurisdiction to order a percentage pay-out upon maturity); see also Trant, 545 So.2d at 429 (comparing immediate offset to deferred distribution). In this case, there were concerns about whether Tim would have the financial ability to exercise the options. Also, the parties’ financial needs might diverge in the future, thus, for instance, creating the possibility that Ingrid might need to have Tim sell stock at a time when his status as an insider or other SEC-imposed restrictions prevent him from doing so. Section 61.075(l)(f) requires an equitable distribution scheme to take into account “[t]he desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.” Certainly, the circumstances of this case justified the trial court’s determination to leave these assets in Tim’s hands, and we affirm it. However, because our decision today increases the number of marital options and shares at issue, on remand the court shall not be foreclosed from revisiting the manner in which this property is to be distributed.

In the final issue regarding the compensation package, Ingrid argues that the trial court erred in classifying the SERP as a nonmarital asset. The trial court found that there was no present or marital value to this retirement plan because Tim would receive nothing if he left HMA or was terminated by the company before reaching the age of 62. We disagree and therefore reverse on this issue. The marital efforts here have resulted in a legal career culminating in an executive position that includes a pension benefit subject to certain contingencies. Thus, there is a distributable marital component to the pension benefit even though it is neither vested nor matured at this time. See §§ 61.075(5)(a)(4), 61.076(1) (providing that all nonvested retirement or pension benefits accrued during the marriage constitute a marital asset); Diffenderfer, 491 So.2d at 266-67 (rejecting contention that pension cannot be marital asset when there are contingencies and problems in valuation); Gingola v. Velasco, 668 So.2d 1054 (Fla. 2d DCA 1996) (recognizing marital component in nonvested pension husband might earn if he remains in a state job that he accepted shortly before dissolution proceedings). On remand we leave to the parties to argue, and the trial court to determine, the appropriate coverture fraction. See Trant, 545 So.2d 428.

In addition to the equitable distribution concerns, Ingrid has raised some support-related issues, most notably the trial court’s failure to consider Tim’s bonus income. Section 61.08(2)(g) requires a court to consider all sources of a party’s income when computing alimony, and section 61.30(2) requires a court to include bonuses when calculating child support. The trial court excluded the bonuses because it found that the payments and amounts were contingent and outside of Tim’s control. True enough, but it was undisputed that Tim has received a sizable bonus in every year of his HMA employment. Where, as here, bonuses are regular and continuous, it is an abuse of discretion to exclude them from consideration when making support awards. See Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999).

The trial court’s failure to give consideration to the bonus income did not affect the alimony determination. The court awarded permanent periodic alimony in an amount that was consistent with its findings regarding the marital standard of living and Ingrid’s capacity for self-support, both of which were supported by the evidence. But the guidelines child support awarded by the court for the parties’ three children was necessarily affected by the exclusion of the bonus income. Therefore, we reverse the child support determination and remand for recalculation under the guidelines with this income factored in.

We also reverse the child support award to the extent that the final judgment ordered an automatic one-third reduction when the oldest child became emancipated upon his graduation from high school, which was anticipated to occur approximately one month after entry of the final judgment. Child support awards must be based on the statutory guidelines. § 61.30; see Donsky-Levine v. Levine, 658 So.2d 1023 (Fla. 4th DCA 1995) (reversing fifty percent reduction of child support when first child reaches majority and remanding for determination of child support required under statutory guidelines when only one child remains at home).

Finally, we affirm the trial court’s characterization of the parties’ parental status. Ingrid argues that the trial court’s designation of the parties as co-primary residential parents established rotating custody without making the proper findings. However, the visitation schedule does not reflect a rotating custody arrangement. Rather, from our review of the record and the final judgment, it appears to us that the characterization was intended to facilitate the children’s school choices given the different locations of the parents’ residences.

In sum, we reverse the classification of Tim’s partially earned but unvested HMA stock and stock options and his retirement plan as Tim’s nonmarital property, and we remand for proceedings to allocate, value, and distribute the marital portions of those assets. We reverse the child support award and remand for proceedings to recalculate it under the statutory guidelines with Tim’s bonus income factored in. We affirm the judgment in all other respects.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and VILLANTI, JJ., Concur.


text:
    Olin Jackson GUDERIAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3878.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.
    Rehearing Denied June 26, 2006.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Olin Guderian appeals the trial court’s order revoking his probation and sentencing him to ten years’ prison. The court revoked Guderian’s probation for failure to report, changing his approved residence without consent, failure to pay costs of supervision, and failure to pay court costs and public defender fees. Guderian’s only argument on appeal is that there was insufficient evidence of a willful failure to pay court-ordered costs under conditions 9, 39, and 40. We agree for the reasons discussed below.

Condition 9 required Guderian to pay $30 per month toward the cost of supervision. Condition 39 required Gude-rian to pay court costs in the amount of $400 within twenty-four months of probation. Condition 40 required Guderian to pay a public defender’s fee in the amount of $300 within twenty-four months of probation. Guderian began serving probation on July 16, 2003. On January 26, 2004, an affidavit of violation of probation was filed, alleging, among other things, that Guderi-an had failed to make sufficient monthly payments toward the court-ordered costs and was in arrears $210 for condition 9 costs and $180.72 for costs under conditions 39 and 40.

When the State seeks to prove a violation of probation for failure to pay court-ordered costs, “it must offer evidence of the defendant’s ability to pay to show that the violation was willful.” Reed v. State, 865 So.2d 644, 646 (Fla. 2d DCA 2004); Stevens v. State, 823 So.2d 319, 322 (Fla. 2d DCA 2002). “It is not sufficient for the State to merely provide evidence of the amount the defendant is in arrears.” Reed, 865 So.2d at 646; Blackwelder v. State, 902 So.2d 905, 908 (Fla. 2d DCA 2005).

At the August 2, 2004, revocation hearing, the only evidence about court-ordered costs was from Guderian’s probation officer. The probation officer testified that Guderian had not made any payment toward his cost of supervision. When questioned about whether payment of court costs and public defender fees was current, the probation officer replied, “No Ma’am.” The probation officer then admitted that he had not had any contact with Guderian and therefore had no “knowledge if he had a job or how much money he was earning.” The State presented no evidence on the issue of ability to pay to show that the violation was willful. Therefore, the trial court abused its discretion in finding that Guderian had violated conditions 9, 39, and 40.

Guderian’s remaining violations for failing to report and changing his residency without consent, thus leaving his whereabouts unknown until his arrest, are substantial violations sufficient to support the revocation of his probation. Therefore, we affirm the revocation and reverse and remand only to strike references to the violations of conditions 9, 39, and 40 from the revocation order. See Mitchell v. State, 871 So.2d 1040 (Fla. 2d DCA 2004).

Affirmed in part, reversed in part, and remanded to strike conditions 9, 39, and 40 from the revocation order.

FULMER, C.J., and KELLY, J., Concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    John D. DUDLEY, Petitioner, v. Margaret M. JONES, Etc., et al., Respondent.
    No. 5D05-3907.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.
    Rehearing Denied July 11, 2006.

      Rebecca O’Dell Townsend, F. Lorraine Jahn and Stanford R. Solomon, of The Solomon Tropp Law Group, P.A., Tampa, for Petitioner.
    Bruce A. Hochstetler, Daytona Beach, for Respondent.
   PER CURIAM.

DENIED.

LAWSON and PALMER, JJ„ concur.

GRIFFIN, J., concurs specially, with opinion.

GRIFFIN, J.,

concurring specially.

Although I agree with petitioner that, contrary to the trial court’s order suggesting otherwise, the appeal could have been treated as a petition for writ of certiorari, this case is inappropriate for second tier certiorari. Moreover, the notion that the underlying order constituted a material departure from the requirements of law is meritless.