author: SHAW, Judge.

text:
    Jerry Jerome BUTLER v. STATE of Alabama.
    CR-04-2149.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.

      Jerry Jerome Butler, pro se.
    Troy King, atty. gen., and Kristi L. Dea-son Hagood, asst. atty. gen., for appellee.
   SHAW, Judge.

Jerry Jerome Butler appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his 1980 guilty-plea convictions for burglary in the first degree and rape in the first degree, and his resulting sentences of life imprisonment for each conviction. Butler states in his petition that he did not appeal his convictions and sentences. Butler filed his Rule 32 petition on May 13, 2005. In his petition, Butler raised what appears to be three claims. After receiving a response from the State, the circuit court summarily denied the petition on June 28, 2005.

I.

In his petition, Butler appears to contend that he was denied due process because, he said, the prosecutor approached him about a plea agreement before he was represented by counsel and while he was incarcerated for another crime. This claim is procedurally barred by Rule 32.2(a)(5), Ala.R.Crim.P., because it could have been, but was not, raised and addressed on appeal, and by Rule 32.2(c), Ala.R.Crim.P., because Butler’s petition was filed long after the limitations period for raising a nonjurisdictional claim had expired. Therefore, summary denial of this claim was proper.

II.

Butler also appeared to contend in his petition that the trial court lacked jurisdiction to accept his pleas because, he said, he pleaded guilty before he was indicted. Pursuant to § 15-15-20 et seq., Ala.Code 1975, a criminal defendant may, in certain circumstances, plead guilty to a felony offense before an indictment is returned. Butler did not allege in his petition that he did not fall within that class of criminal defendants who may plead guilty to a felony offense before an indictment is returned; rather, he made only a broad allegation that he could not plead guilty to a felony before indictment. Therefore, his claim is meritless on its face and was properly denied by the circuit court.

III.

Finally, Butler contends in his petition that the trial court lacked jurisdiction to accept his pleas because, he said, the informations filed by the district attorney were not made under oath as required by § 15-15-21, Ala.Code 1975. On appeal, the State concedes that this claim is jurisdictional, sufficiently pleaded, unrefuted, and meritorious on its face, and it requests that we remand this case to the circuit court for further proceedings. We agree that a remand is necessary.

In Ex parte Looney, 797 So.2d 427 (Ala.2001), the Alabama Supreme Court held that the requirement in § 15-15-20.1(b), Ala.Code 1975, that an information “shall be made under oath of the district attorney or a witness” was a prerequisite to a trial court’s jurisdiction to accept a plea pursuant to an information. Although § 15-15-20.1 was not in effect at the time Butler entered his pleas, § 15-15-21, which provides that “[w]hen the desire of a defendant to plead guilty is made known to the court, it shall direct the district attorney of such court to prefer and file an information against such defendant, under the oath of such district attorney or some witness ” (emphasis added), was in effect, and its language is substantially similar to that in § 15-15-20.1. In addition, Rule 13.1(b), Ala.R.Crim.P., defines an information as “a written statement charging the defendant or defendants named therein with the commission of an indictable offense, made on oath, signed, and presented to the court by the district attorney,” and this Court has held that the failure to file an information as required by § 15-15-21 is a jurisdictional prerequisite to the acceptance of a guilty plea by information. See Coleman v. State, 843 So.2d 237 (Ala.Crim.App.2001). See also Ex parte Pardue, 797 So.2d 409 (Ala.2000), Long v. State, 675 So.2d 532 (Ala.Crim.App.1996), and Ross v. State, 529 So.2d 1074 (Ala.Crim.App.1988) (all holding that compliance with § 15-15-22 is also a jurisdictional prerequisite to the acceptance of a guilty plea by information). Therefore, Butler’s claim in this regard is jurisdictional and not subject to the procedural bars in Rule 32.2.

Butler’s claim in this regard is also pleaded with sufficient specificity to satisfy the requirements in Rule 32.3 and 32.6(b), Ala.R.Crim.P.; the circuit court did not address this claim in its order denying Butler’s petition; and the State did not refute this claim in its response to Butler’s petition. It is well settled that “[ojnce a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala.R.Crim. P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.” Ford v. State, 831 So.2d 641, 644 (Ala.Crim.App.2001). Moreover, “ ‘[wjhen the State does not respond to a petitioner’s allegations, the unrefuted statement of facts must be taken as true.’ ” Bates v. State, 620 So.2d 745, 746 (Ala.Crim.App.1992), quoting Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991). Because Butler’s claim is sufficiently pleaded and unrefuted, it must be accepted as true, and he is entitled to an opportunity to present evidence to support his claim.

Therefore, we remand this case for the circuit court to allow Butler an opportunity to present evidence in support of his claim that the informations filed in his case were not made under oath of the district attorney. The circuit court may either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala.R.Crim.P. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Butler’s claim, and may grant whatever relief it deems necessary. Due return shall be filed with this Court within 49 days of the date of this opinion. The return to remand shall include the circuit court’s written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received and/or relied on by the court.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . Various provisions in § 15-15-20 et seq. were repealed or superseded in 1996; however, those provisions were in effect at the time of the offense in this case.


source: Caselaw Access Project

author: BASCHAB, Judge. COBB, Judge,

license: Public Domain

text:
    Floyd Wesley BUSH v. STATE of Alabama.
    CR-04-1789.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.
    Rehearing Denied Jan. 13, 2006.

      Jenny R. Ryan and James 0. Stand-ridge, Tuscaloosa, for appellant.
    Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Floyd Wesley Bush, was convicted of four counts of first-degree theft of property, violations of § 13A-8-3(a), Ala.Code 1975, and one count of second-degree theft of property, a violation of § 13A-8-4(a), Ala.Code 1975. The trial court sentenced him to serve concurrent terms of fifteen years in prison on the first-degree theft of property convictions, but split those sentences and ordered him to serve three years followed by twelve years on probation. It also sentenced him to serve a concurrent term of five years in prison on the second-degree theft of property conviction. The appellant did not file any post-trial motions. This appeal followed.

The following facts are essential to an understanding of this case:

The evidence at trial indicated that the appellant operated the Memorial Gardens Cemetery in Guin and the Memorial Gardens Cemetery in Hamilton; that, between 1997 and 2002, the appellant had contracted with the victims for various goods and services with relation to the two cemeteries; that the appellant did not perform as promised with regard to the contracts; and that the appellant had filed for bankruptcy in March 2003.

In February 2004, the appellant was charged in a fourteen count indictment with five counts of first-degree theft of property and nine counts of second-degree theft of property. Before his trial began, Counts 1 through 7 of the indictment were dismissed. Subsequently, the appellant was convicted of first-degree theft of property pursuant to Count 8 of the indictment for the theft of property belonging to Jessie and Willene Pridmore in connection with the purchase of a grave marker; first-degree theft of property pursuant to Count 9 of the indictment for the theft of property belonging to Lexie Aycock for the opening and closing of a vault; first-degree theft of property pursuant to Count 12 of the indictment for the theft of property belonging to Billy Roy Palmer for the purchase of a grave marker; second-degree theft of property pursuant to Count 13 of the indictment for the theft of property belonging to Lonnie D. Mays for the purchase of a grave marker; and first-degree theft of property pursuant to Count 14 of the indictment for the theft of property belonging to Sarah Hazel Harbin for the purchase of burial plots.

I.

Count 14 of the indictment charged the appellant with first-degree theft of property based on the sale of burial plots to Sarah Harbin. During the trial, Harbin testified that, in 1997, she and her husband purchased two burial plots at the Memorial Gardens in Guin; that she and her husband had set up payments on her plots; that, in 1997 or 1998, she paid $750 for the plots; that her husband died on September 18, 2003; that, after her husband died, she took her contracts to the cemetery and was told that she had not been assigned any plot numbers; that her name and her husband’s name were not on a list of plot owners; and that she had to purchase additional plots from a third party to bury her husband.

At trial, the State introduced into evidence a copy of the contract between James and Sarah Harbin and “Heritage Memorial Gardens of Gu-Win, Alabama.” (C.R. 119.) The contract provided for the purchase of two interment spaces for $750 and was dated November 5, 1997. The contract indicated that the Harbins paid a $150 down payment on the spaces; that the remaining $600 was financed for a twelve month period; that the Harbins were scheduled to pay $50 a month; and that the first payment was due on December 1, 1997. Therefore, the Harbins’ last payment on the grave plots was due on December 1,1998.

Count 14 of the indictment charged the appellant with theft by deception. The statute of limitations for the offense of theft of property is three years. See Ex parte Rosborough, 909 So.2d 772 (Ala.2004) (citing §§ 13A-8-3(c) and 15-3-1, Ala. Code 1975). In Rosborough, the Alabama Supreme Court addressed the issue of when the statute of limitations begins to run in a case of theft by deception. The facts presented in that case established that, on April 18, 1995, Rosborough and the victim entered into an agreement for Rosborough to invest the victim’s money, and the victim gave Rosborough $40,276.00. The agreement provided that Rosborough would make monthly interest payments to the victim until December 2000 and that, at that time, the full amount of principal would be returned to the victim. Rosborough initially made interest payments to the victim. However, he completely stopped making interest payments to the victim approximately four months before the agreement was scheduled to end, and he did not return the principal to the victim. Rosborough was subsequently charged with first-degree theft by deception. The supreme court addressed the issue of the statute of limitations in a theft by deception case as follows:

“Rosborough presented only one argument to the Court of Criminal Appeals, namely, that his prosecution was barred by the three-year statute of limitations in § 15-3-1, Ala.Code 1975, because, while he obtained the principal from Nixon on April 18,1995, he was not indicted until September 13, 2001. The Court of Criminal Appeals rejected his argument, reasoning in their unpublished memorandum that Rosborough’s actions amounted to a continuing offense, which was not complete until he stopped making the required interest payments in July 2000 and when he did not return the principal to Nixon on December 31, 2000, events occurring less than three years before Rosborough was indicted originally.
“Where the facts regarding the commission of the alleged offense are not in dispute, whether the limitations period has expired is a question of law. Ex parte Hunt, 642 So.2d 1060, 1067 (Ala.1994). ‘[T]he ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.’ Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).
“The State and Rosborough agree that first-degree theft is a Class B felony to which the three-year statutory period of limitations applicable to felonies in general applies. Ala.Code 1975, § 13A-8-3(c); § 15-3-1. Also, they agree that ‘[a] limitations period runs from the time a crime is committed, which is determined as the time when all of its essential elements are present and complete.’ Ex parte Hunt, 642 So.2d at 1066. However, the State and Rosbor-ough disagree as to when the essential elements of theft by deception were ‘present and complete.’ ...
“In Ex parte Stinson[, 631 So.2d 831 (Ala.1992)], this Court discussed the essential elements of the crime of theft by deception:
“ ‘Theft of property in the first degree is a Class B felony, and involves the theft of property exceeding $1000 in value. Section 13A-8-2, Code of Ala.1975, reads:
“ ‘ “A person commits the crime of theft of property if he:
“ ‘ “(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property.”
“ ‘To make a case of theft by deception, the state must prove three elements: (1) that the defendant knowingly obtained the property; (2) that the defendant obtained the property by deception; and (3) that the defendant intended to deprive the owner of the property. Oliver v. State, 518 So.2d 707 (Ala.Cr.App.1987); Loper v. State, 469 So.2d 707 (Ala.Cr.App.1985).’
631 So.2d at 832 (emphasis added). It is undisputed that Rosborough knowingly obtained Nixon’s property on April 18, 1995, with the intent to deprive Nixon of the property. The parties’ arguments focus upon the second element— that the defendant obtained the property by deception — and require us to consider whether that element allows the consideration of what the State describes as ‘repeated misrepresentations subsequent to the transfer of funds.’ State’s brief, at 6.
“As previously mentioned, theft by deception is substantially similar to the former crime of obtaining property by false pretenses. An essential element of that offense was ‘obtaining property by reason of the pretense.’ McMurphy v. State, 455 So.2d 924, 927 (Ala.Crim.App.1984). Thus, the ‘[flalse pretense must have operated as an inducement for the injured party to part with goods or money.’ Id. Obviously, any false pretense occurring after the victim parted with the property could not operate as an inducement for the victim to part with the property in the first place.
“ ‘If the [offense of obtaining property by false pretense] was committed at all, it was committed at the time the alleged false representations were made and the [property] obtained. Subsequent actions of the accused were no part of the res gestae, and could shed no light on the issues involved in the trial of this case. Carlisle v. State, 77 Ala. 71 [(1884)].’
“Prentice v. State, 24 Ala.App. 587, 587, 139 So. 437, 438 (1932).
“In Ex parte Day, 481 So.2d 1169, 1171 (Ala.1985), relying substantially upon the Court of Criminal Appeals’ decision in McMurphy, this Court ‘h[e]ld that reliance is an element of the offense of theft by deception.’ Thus, the deception necessary to constitute an offense under § 13A-8-2 necessarily must precede the defendant’s obtaining the property from its owner. Consequently, the State’s argument, which is based upon deception alleged to have occurred after Nixon turned her money over to Rosbor-ough, is without merit.
“The State argues that Rosborough’s periodic payments to Nixon amounted to ‘a continuing deception calculated to prevent [Nixon] from discovering [the] theft.’ State’s brief, at 7. According to the State, ‘[t]hat Rosborough received all of the stolen money in one transaction does not negate the fact that the deception element of his offense was ongoing.’ State’s brief, at 19. Therefore, according to the State, the limitations period should be computed from the date of the last ‘deceptive’ payment, not from the date of the theft. However, as previously explained, the deception required by § 13A-8-2 necessarily must precede the theft. Also, the State’s argument conflicts with the principle that.‘[k]nowledge on the part of the victim is not required,’ and ‘[therefore, the date the crime was discovered is irrelevant.’ Griffin v. State, 352 So.2d 847, 850 (Ala.1977).
“In Griffin, employing a continuous-offense analysis, this Court held that an offense consisting of repeated false representations and the repeated receipt of checks as the result of those misrepresentations was a continuing one, which was not completed until the last check was received. 352 So.2d at 850-51. While the State contends that its continuing-offense argument is logically consistent with the holding in Griffin, we disagree. In Griffin, unlike in this case, property was obtained after each misrepresentation, and the defendant obtained property within the limitations period.
“For the foregoing reasons, we hold that the limitations period began to run on April 18, 1995, when Rosborough obtained Nixon’s money. Therefore, the limitations period expired long before Rosborough was indicted on September 13, 2001.”

909 So.2d at 774-76.

The evidence in this case indicated that the Harbins made their last payment on the grave plots in 1998. Therefore, the statute of limitations began to run in 1998. However, the indictment against the appellant was not filed until February 24, 2004. Therefore, with regard to the charge included in Count 14, the indictment was filed well after the three year statute of limitations for first-degree theft of property had expired. “The statute of limitations is jurisdictional and an indictment filed after the expiration of the limitations period is void. Ex parte Campbell, 784 So.2d 323, 324 (Ala.2000).” Zimlich v. State, 872 So.2d 881, 885-86 (Ala.Crim.App.2003). Accordingly, Count 14 of the indictment was void, and the trial court did not have jurisdiction to render a judgment and impose a sentence with regard to that count.

II.

The appellant argues that the trial court erroneously admitted into evidence State’s Exhibits 2 and 3, which were contracts between J.R. and Maudie P. Ay-cock and West Alabama Memorial Gardens, Inc.,' of Marion County, Alabama, and between J.R. and Paralee Aycock and West Alabama Memorial Gardens, Inc., of Marion County, Alabama. Specifically, he contends that the State did not properly authenticate those contracts.

“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

Rule 901(a), Ala. R. Evid. During the trial, Lexie Aycock testified that J.R. Aycock was his father; that his father died in April 2003; that, after his father died, he took a contract for opening and closing a vault to the Memorial Gardens in Weston and gave it to Betty Prestridge; that it was his understanding that his father had paid for a marker and for the opening and closing of a vault; that Hamilton Memory Gardens did not honor the contract for opening and closing the vault; and that he had to pay someone else to open and close the vault for his father.

In this case, the State did not present any evidence to authenticate the contracts in State’s Exhibit 2 and 3. Before the contracts were admitted, Lexie Aycock testified only that his mother had given him the contracts in question. However, Aycock testified that he was not present when the contracts were signed. Further, the prosecutor asserted that the contracts had been taken from the cemetery files. However, the State did not present any evidence regarding who had obtained the cemetery files or the circumstances regarding the seizure of the files. Finally, the State did not present any evidence to indicate that the contracts that were admitted into the evidence were actually the contracts that the parties had executed. In fact, Count 9 of the indictment alleged that the basis for the theft of property charge in that case was payment for the opening and closing of a vault. However, neither of the Aycock contracts that were admitted into evidence provided for the opening and closing of a vault. Because the Aycock contracts did not fit within any of the categories of self-authenticating documents set forth in Rule 902, Ala. R. Evid., they were not self-authenticating. Because the Aycock contracts were not properly authenticated, the trial court erred when it admitted State’s Exhibits 2 and 3 into evidence. Because those documents formed the basis for the appellant’s conviction in Count 9 of the indictment, we reverse the appellant’s conviction and sentence for first-degree theft of property based on Count 9 of the indictment and remand this case for proceedings that are consistent with this opinion.

III.

The appellant argues that the State did not prove venue for each of the offenses.

“The burden of proof regarding venue is on the State, and the State may establish venue by circumstantial evidence. Ex parte East, 584 So.2d 496, 498 (Ala.1991); Willcutt v. State, 284 Ala. 547, 550, 226 So.2d 328, 330 (1969). This Court has held that, ‘ “A conviction in a criminal case can never be had except upon proof of the venue, and this need not be proved by direct evidence, but evidence from which it may be inferred is sufficient; but the venue of a crime should never be left in doubt, nor supplied by inference, when it may be readily proved.” ’ Ex parte Jones, 519 So.2d 589, 590 (Ala.1987), quoting Mayhall v. State, 22 Ala.App. 223, 225, 114 So. 361, 363 (1927), citing Walker v. State, 153 Ala. 31, 45 So. 640 (1908), rev’d on other grounds, 184 Ala. 26, 63 So. 1010 (1913) (emphasis added).
“When there is conflicting evidence as to venue, whether the State has proven venue is a question for the jury. Ex parte East, supra. However, when no evidence as to venue has been presented, the question is one for the court. Ex parte Day, 584 So.2d 493, 496 (Ala.1991); Ex parte East, supra. In that event, upon proper motion, the court may, and should, take the issue of venue from the jury and enter a directed judgment of acquittal for the defendant. Failure to prove venue is ground for reversal. Ex parte Jones, 519 So.2d at 590.”

Ex parte Russell, 844 So.2d 536, 538 (Ala.2002).

With regard to Count 8 of the indictment, Willene Pridmore testified that she and her husband had plots at Memorial Gardens in Guin; that she and her husband purchased a marker from the appellant; that they signed the contract for the marker on June 11, 2002; that they paid $1,500 for the marker; that the marker was supposed to have been placed between six and eight weeks later; that, as of the time of trial, the marker still had not been placed; that she talked to the appellant about the marker, he asked if she wanted it right then, and she told him that she did; that the appellant did not tell her why the marker had not been placed; that the appellant said only that he had not gotten around to it; that her husband died on December 21, 2004; and that the marker was not down when her husband died. She also testified that she had signed a contract for the opening and closing of the grave and that, when her husband died, they had to pay again to have the grave opened and closed.

With regard to Count 12 of the indictment, Billy Roy Palmer testified that he had a plot at the Memorial Gardens Cemetery in Guin; that, on March 8, 2002, he purchased a double marker from the appellant; that he paid the appellant $1,800 for the marker at that time; that he asked that the marker be put down; that the appellant told him it would be six months before he got the marker; that, after the six months had passed, he asked the appellant about the marker; that the appellant told him that he had had a heart attack, that he did not have very good help, and that the marker had not been ordered; that, a couple of days later, the appellant told him that he had ordered the marker; that, in March 2003, he went back to the cemetery, and the marker was still not there; and that the marker was never put down.

With regard to Count 13 of the indictment, Mary Mays testified that, in October 2001, she and her son, Lonnie Mays, purchased a grave site, the opening and closing of a vault, and a grave marker from the appellant; that the cost of the marker was $1,495; that she talked to the appellant on several occasions and told him that she wanted him to put down the marker; that the appellant told her that he would put it down and that she did not have anything to worry about; and that, at the time of trial, the marker had not been put on the grave site. She also testified that she paid $500 down for the marker; that the appellant told her that he would put the marker down after she paid the full amount; that she then paid $100 a month for the marker; that she made her final payment of $200 on November 5, 2002; that the appellant came to her house on that date, and she gave him the final payment; that the appellant told her that he had ordered the marker; and that she had mailed her other payments for the marker.

Although Willene Pridmore, Billy Roy Palmer, and Mary Mays testified that they had purchased grave markers from the appellant for their burial plots in the Memorial Gardens Cemeteries in Guin and Hamilton, they did not testify as to where those transactions took place. Mary Mays did testify that she had mailed in payments for her grave marker and that the appellant had come to her house to collect her final payment on the grave marker. However, she did not testify as to where she had mailed the payments or where she lived, and the contract that was introduced into evidence included only her son’s address. Further, although the State introduced the contracts between each of the victims and West Alabama Memorial Gardens, Inc., of Marion County, Alabama, nothing in those contracts indicated where they were executed. Finally, although the State presented evidence that both of the cemeteries in question were in Marion County, it did not present any evidence to show that the transactions that formed the basis for Counts 8, 12, and 13 took place at those cemeteries. Therefore, the State did not present either direct evidence or circumstantial evidence to prove that venue was proper in Marion County. Accordingly, we must reverse the trial court’s judgment and render a judgment for the appellant on the first-degree theft of property convictions pursuant to Counts 8 and 12 of the indictment and the second-degree theft of property conviction pursuant to Count 13 of the indictment.

For the above-stated reasons, we reverse the appellant’s first-degree theft of property convictions based on Counts 8, 12, and 14 of the indictment and his second-degree theft of property conviction pursuant to Count 13 of the indictment and render a judgment for the appellant as to those charges. We also reverse the appellant’s first-degree theft of property conviction based on Count 9 of the indictment and remand this case to the trial court for proceedings that are consistent with this opinion with regard to Count 9 of the indictment.

REVERSED IN PART; JUDGMENT RENDERED IN PART; AND REMANDED.

McMILLAN, P.J., and SHAW, J., concur; COBB, J., concurs specially, with opinion, which WISE, J., joins.

COBB, Judge,

concurring specially.

I agree with the majority’s analysis and its conclusions in this case. I am writing specially only to show my strong support for the recommendation in footnote 2 of the opinion urging the Alabama Supreme Court to revisit its decision in Ex parte Rosborough, 909 So.2d 772 (Ala.2004). In Ex parte Rosborough, the Supreme Court reversed a unanimous decision of this Court affirming the conviction. The Supreme Court held that the statute of limitations in that theft-by-deception case began to run as soon as the defendant obtained the money the victim had loaned him, not when the defendant stopped repaying the loan, and further held that the prosecution took place long after the limitations period had run. The facts of Ex parte Rosborough were set forth in the opinion, as follows:

“ ‘Rosborough is an accountant by trade_ For many years, Rosbor-ough prepared yearly income tax returns for his aunt, Ms. Sarah Nixon. In 1995, Rosborough approached Ms. Nixon with an investment offer, promising her a tax-free rate of return of six and one half percent, payments of $218.00 per month, and the full return of her principal amount of $40,226.36. The agreement was to terminate on December 31, 2000. Ms. Nixon signed an Agreement of Guarantee on April 18, 1995 and turned the principal amount of $40,226.36 over to Ros-borough.
“ ‘On April 19, 1995, one day after taking possession of Ms. Nixon’s $40,226.36, Rosborough made a payment of $40,414.00 to the Choctaw County Clerk of Court for restitution in a prior criminal case.
“ ‘Rosborough began making monthly “interest” payments to Ms. Nixon on May 15, 1995, as scheduled. Sometimes Rosborough’s payments were late but, generally, during the first three years of the agreement, Rosborough made the monthly payments as promised. Beginning in August, 1998, however, Rosborough became [more] erratic in making the payments, sometimes skipping a month and making double payments the following month. Additionally, some monthly payments were missed altogether. The record reflects that June 28, 2000 was the last date Ros-borough made a payment to Ms. Nixon.
“ ‘After Rosborough quit making payments, Ms. Nixon testified that she tried to contact Rosborough on numerous occasions. She was unsuccessful, however, and Rosborough never returned her principal amount of $40,226.36.’
“State’s brief, at 2-3 (citations to the record omitted).”

909 So.2d at 773.

Although this Court held that Rosbor-ough’s actions constituted a continuing offense and that the statute of limitations did not begin to run until he stopped making the required payments, the Alabama Supreme Court held that the limitations period began to run on April 18, 1995, when Rosborough initially obtained Nixon’s money. The victim in Ex parte Rosborough did not seek to prosecute Rosbor-ough until she learned of the deception, which occurred after Rosborough stopped making payments, and the Supreme Court held that the prosecution was barred by the statute of limitations.

I continue to have grave concerns that, under Ex parte Rosborough, victims will be barred from seeking relief because they will not discover that a crime had been committed until after the statute of limitations, as determined in Ex parte Rosborough, has run. As the majority points out in footnote 2, the victim named in Count 14 of the indictment did not learn of the theft until her husband died in 2003 and she attempted to have him buried in the plot she believed they had paid for in 1997 and 1998. The statute of limitations should have begun to run as to that count, in my opinion, when the victim would have reasonably learned of the theft of her money; that date would have been when the victim contacted an employee at the cemetery and attempted to have her husband buried in the plot they believe they had purchased. Instead, under Ex parte Rosborough, the conviction obtained pursuant to that count of the indictment has been set aside because the indictment was filed after the statute of limitations had run. This is not justice.

Along with the majority, I urge the Alabama Supreme Court to correct this obvious error; Ex parte Rosborough fails to protect innocent victims and provides a legal loophole for unscrupulous offenders to slip through. The principles of equity and justice under the law demand a different result.

WISE, J., concurs.

      . After the State rested its case, the trial court granted the appellant’s motion for a judgment of acquittal with regard to Count 11 of the indictment. Further, the jury acquitted the appellant of Count 10 of the indictment.

      . We note that the State presented evidence that Sarah Harbin did not learn about the deception until after her husband's death on September 18, 2003. However, based on the supreme court's holding in Rosborough, the date that she learned about the deception was irrelevant. This type of factual situation highlights the problems caused by the supreme court's holding in Rosborough. In this type of case, the theft would not reasonably be discovered until after the person for whom the grave site was purchased has died. Therefore, many years may pass before the theft and the deception will be discovered. In such a situation, under the law that is now in effect, a perpetrator could evade punishment by simply covering up his actions until after the statute of limitations has expired. Accordingly, we urge the Alabama Supreme Court to revisit its decisions in Rosborough and Griffin. In the alternative, we urge the Legislature to enact an exception to § 15-3-1, Ala.Code 1975, that would provide that the three-year statute of limitations in theft by deception cases would be tolled until the theft could reasonably be discovered.

      . The appellant also argues that the trial court erroneously admitted into evidence all of the contracts involved in this case because the State did not prove a proper chain of custody for each of the contracts. However, he did not raise this specific claim in the trial court. Therefore, it is not properly before this court. See Miller v. State, 602 So.2d 488, 496 (Ala.Crim.App.1992) (holding that " '[t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.’ Ex parte Frith, 526 So.2d 880, 882 (Ala.1987)”).

      . Based on our disposition of Counts 9 and 14 of the indictment, we need not determine whether the State properly proved venue with respect to those counts.

      . Because of our disposition on each of these convictions, we pretermit discussion of the remaining issues the appellant raises in his brief to this court.


author: PER CURIAM. STUART, Justice SMITH, Justice

text:
    Ex parte State of Alabama. (In re Floyd Wesley BUSH v. STATE of Alabama).
    1050545.
    Supreme Court of Alabama.
    May 26, 2006.
    Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and Robin Blevins Scales, asst. atty. gen., for petitioner.
    Submitted on petitioner’s brief only.
   PER CURIAM.

WRIT DENIED. NO OPINION.

LYONS, WOODALL, and PARKER, JJ., concur.

NABERS, C.J., and SEE, STUART, SMITH, and BOLIN, JJ., concur specially.

STUART, Justice

(concurring specially).

I concur in denying the writ. I write to clarify that although I agree that the denial of this petition for a writ of certiorari is proper, I adhere to my dissent in Ex parte Rosborough, 909 So.2d 772, 780-82 (Ala.2004). I agree with Justice Smith when she states in her special concurrence that the facts as presented to us are insufficient to establish “whether the contract in this case actually continued the deceptive scheme or otherwise acted to cover up the deception,” 942 So.2d at 404 (footnote omitted), or whether Floyd Wesley Bush continued to make misrepresentations to Sarah Harbin after he took Harbin’s money so as to make the continuing-offense doctrine applicable. Consequently, this Court does not have adequate facts before it to support revisiting our decision in Ex parte Rosborough. Thus, because the facts before us, in my opinion, do not establish a continual deception to support a conviction of theft by deception, I agree to deny the writ.

I further recognize that it is the legislature’s responsibility to establish the statute of limitations for theft by deception. I encourage the legislature to revisit § 15-3-1, Ala.Code 1975, which sets forth the limitations period for theft by deception. Until the statute provides that the limitations period begins when the theft by deception could reasonably be discovered, offenses like this one on the citizens of Alabama will continue to go unchecked.

SMITH, Justice

(concurring specially).

I concur to deny certiorari review in this case.

In 1997, Sarah Harbin and her husband purchased two interment spaces in a cemetery operated by Floyd Wesley Bush. The final payment on the spaces was apparently tendered to Bush in December 1998. When Harbin’s husband died in September 2003, Harbin discovered that she had not been assigned any plot numbers in the cemetery and that her name and her husband’s name were not on the list of owners of interment spaces.

In February 2004, Bush was indicted and charged with first-degree theft of property in connection with the sale of the interment spaces to Harbin. Bush was convicted and appealed to the Court of Criminal Appeals.

The Court of Criminal Appeals reversed the conviction, holding that under this Court’s decision in Ex parte Rosborough, 909 So.2d 772 (Ala.2004), the three-year statutory limitations period for first-degree theft had expired. In Rosborough, this Court addressed the issue of when the statute of limitations begins to run in a case of theft by deception. In that case, the defendant and the victim had entered into an agreement or contract pursuant to which the defendant was to invest the victim’s money. The contract provided that the victim would give the defendant $40,226.36 to invest. The defendant would subsequently make monthly payments of interest on the amount to the victim over a period of more than five years. At the end of the five-year term, the full amount of principal would be returned to the victim.

The defendant made most of the interest payments, but he stopped making payments approximately four months before the contract was scheduled to end. The defendant ultimately did not return the principal to the victim and was charged with theft by deception. This Court held that the statute of limitations begins to run in a theft-by-deception case when all of the essential elements of the offense are present and complete. Theft by deception, we noted in Rosborough, is complete when the defendant, with the requisite intent, obtains money from the victim through the use of deception.

In its petition for certiorari review, the State essentially argues that the contract for the sale of the interment spaces in this case perpetuated Bush’s deceptive scheme. According to the State, Harbin relied on the promise contained in the contract; thus, the “last act” by Bush in furtherance of the crime was the failure to perform the contract, i.e., when Harbin did not receive the interment spaces she had paid for. Therefore, the State contends, the statute of limitations began to run in September 2003, when Harbin attempted to use her husband’s interment space, and the indictment issued in February 2004 fell within the three-year statute of limitations. The State also appears to assert that the statute of limitations in a theft-by-deception case should not begin to run until the alleged crime is discovered.

As this Court noted in both Rosborough and Griffin v. State, 352 So.2d 847 (Ala.1977), the statute of limitations does not begin to run when a crime is discovered, but rather when the all of the elements of the crime are present and complete. In Griffin, we stated:

“A crime is committed only when all its essential elements are present and complete. The offense of obtaining property by false pretenses consists of the pretense; its falsity; obtaining property by reason of the pretense; and the intent to defraud. Knowledge on the part of the victim is not required. Therefore, the date the crime was discovered is irrelevant. The statute of limitations begins to run with the commission of the crime, this being the date when all the above requisites coalesce.”

352 So.2d at 850 (citations omitted). However, in some cases, the offense may be continuing in nature. If several acts form one element of an offense, the offense is not complete until the “last act” has been performed. 352 So.2d at 850. The dissenting Justices in Rosborough believed that that case presented such a continuing offense. Chief Justice Nabers stated in his dissent:

“This is not simply a theft followed by a series of deceptive acts to cover it up. If it were, the majority’s opinion would be persuasive. Rather, it is a theft conceived and carried out through a contract, which by its terms continued beyond the theft and provided cover for Rosborough’s deception. The contract was part and parcel of the crime. Every penny of the $40,226 was ‘obtained’ by Rosborough under the contract. The transaction created by the contract extended by its terms through December 2000.
“I would hold that in a theft-by-deception case where property is obtained pursuant to a continuing and deceptive scheme set forth in a contract crafted to effectuate the transfer of the property and to cover up the theft through means defined as ‘deception’ by Ala.Code 1975, § 13A-8-l(l)(a) through (f), the statute of limitations does not begin to run until the thief has completed his ‘final act’ of performance under the contract.”

Rosborough, 909 So.2d at 779 (Nabers, C.J., dissenting).

The facts before this Court on preliminary examination of this certiorari petition are simply insufficient from which to determine whether the offense alleged in this case was continuing in nature. Neither the facts in the Court of Criminal Appeals’ decision nor the State’s properly presented statement of facts establishes whether the contract in this case actually continued the deceptive scheme or otherwise acted to cover up the deception. Additionally, there are no facts before us indicating that Bush made continuing representations by way of the contract that led Harbin to believe she owned the interment spaces. In short, there is nothing before us that would demonstrate probability of merit in the State’s argument that the “final act” of the offense occurred when Harbin attempted to use the interment spaces she believed she had purchased. Therefore, I concur to deny the petition.

As noted, the State appears to assert that the statute of limitations should not begin to run until the alleged offense is discovered. As discussed above, we held in Griffin that the date the crime is discovered is irrelevant. The legislature, should it see fit to do so, could amend Ala.Code 1975, § 15-3-1, to provide that the three-year statute of limitations in a theft-by-deception case would be tolled until the theft could reasonably be discovered. The creation of such • an exception rests with the legislature, however, and not with this Court.

NABERS, C.J., and SEE and BOLIN, JJ., concur.

      . Bush was also indicted on other charges related to his operation of two cemeteries and his failure to provide certain goods and services. A discussion of those charges can be found in the Court of Criminal Appeals’ decision in this case. Bush v. State, 942 So.2d 392 (Ala.Crim.App.2005).

      . See Rule 39(k), Ala. R.App. P. (limiting this Court's scope of review on preliminary examination of a certiorari petition to the facts stated in the court of appeals' decision and a statement of facts properly presented under Rule 39(d)(5), Ala. R.App. P.).


author: McMILLAN, Presiding Judge. SHAW, Judge,

text:
    Lester Lee MOTON, Jr. v. STATE.
    CR-04-2040.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.
    Rehearing Denied Jan. 27, 2006.
    Certiorari Denied May 12, 2006 Alabama Supreme Court 1050600.
    Lester Lee Moton, Jr., pro se.
    Troy King, atty. gen., and Jennifer M. Garrett, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

COBB, J., concurs. BASCHAB and WISE, JJ., concur in the result. SHAW, J., concurs in the result, with opinion.

SHAW, Judge,

concurring in the result.

I seriously question the propriety of relying on Clemons v. State, [Ms. CR-01-1355, June 24, 2005] — So.2d -, - (Ala.Crim.App.2003) (opinion on return to remand), to hold that the allegations of ineffective assistance of counsel made by Lester Lee Moton, Jr., were time-barred, in light of the “mailbox rule” that is applied to pro se inmates. See, e.g., Ex parte Allen, 825 So.2d 271, 272 (Ala.2002) (“Alabama courts have held that a pro se incarcerated petitioner/appellant is considered to have ‘filed’ a Rule 32 petition, a notice of appeal, or a petition for a writ of certiorari when those documents are given to prison officials for mailing.”); Holland v. State, 621 So.2d 373, 375 (Ala.Crim.App.1993) (“[W]e hold that a pro se incarcerated petitioner ‘files’ a Rule 32 petition when he hands the petition over to prison authorities for mailing.”). However, after reviewing the record, I believe that Moton’s allegations were not pleaded with sufficient specificity to satisfy the requirements in Rule 32.3 and 32.6(b), Ala. R.Crim.P.; therefore, I concur in the result.


author: PER CURIAM.

text:
    In re FLORIDA RULES OF APPELLATE PROCEDURE—RULE 9.510, ADVISORY OPINIONS TO THE ATTORNEY GENERAL.
    No. SC06-1264.
    Supreme Court of Florida.
    Nov. 9, 2006.
   PER CURIAM.

The Court on its own motion adopts Florida Rule of Appellate Procedure 9.510, Advisory Opinions to the Attorney General, to provide guidance concerning the procedures to be utilized in the event of the Attorney General requesting this Court to render an advisory opinion concerning the validity of an initiative petition for the amendment of the Florida Constitution. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(d).

The proposed new rule was published in The Florida Bar News on August 1, 2006. No comments were received. Accordingly, the Court adopts Florida Rule of Appellate Procedure 9.510, to take effect immediately upon the release of this opinion. The rule is adopted as it appears in the appendix to this opinion.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

Rule 9.510. ADVISORY OPINIONS TO ATTORNEY GENERAL

(a)Filing. A request by the attorney general for an advisory opinion from the justices of the supreme court concerning the validity of an initiative petition for the amendment of the Florida Constitution shall be in writing. The original and 7 copies shall be filed with the clerk of the supreme court.

(b) Contents of Request. In addition to the language of the proposed amendment, the request referenced in subdivision (a) must contain the following information:

(1) the name and address of the sponsor of the initiative petition;
(2) the name and address of the sponsor’s attorney, if the sponsor is represented;
(3) a statement as to whether the sponsor has obtained the requisite number of signatures on the initiative petition to have the proposed amendment put on the ballot;
(4) if the sponsor has not obtained the requisite number of signatures on the initiative petition to have the proposed amendment put on the ballot, the current status of the signature-collection process;
(5) the date of the election during which the sponsor is planning to submit the proposed amendment to the voters;
(6) the last possible date that the ballot for the target election can be printed in order to be ready for the election;
(7) a statement identifying the date by which the Financial Impact Statement will be filed, if the Financial Impact Statement is not filed concurrently with the request; and
(8) the names and complete mailing addresses of all of the parties who are to be served.

(c) Procedure. The justices must initially determine whether the request is within the purview of article V, section 3(b)(10), Florida Constitution, and proceed as follows:

(1) If 4 justices concur that the request is not within that purview, the attorney general will be advised immediately in writing and a copy will be filed in the clerk’s office.

(2) If the request is within the purview, the court may permit the attorney general and other interested persons to be heard on the questions presented through briefs, oral argument, or both. If the court decides to receive briefs or hear oral argument, it will establish the time for filing briefs, the date of argument, and the time allotted.


text:
    In re AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE (THREE YEAR CYCLE).
    No. SC06-169.
    Supreme Court of Florida.
    Nov. 9, 2006.
    John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, William C. Vose, Chair, Criminal Procedure Rules Committee, Orlando, FL, George E. Tragos, Past Chair, Criminal Procedure Rules Committee, Clearwater, FL, Gerry Rose, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Chris W. Altenbernd, Past Chair, Post-conviction Rules Workgroup, Second District Court of Appeal, Tampa, FL; James T. Miller, Jacksonville, FL; Paula S. Saunders, Co-Chair, The Florida Association of Criminal Defense Lawyers (FACDL) Ami-cus Curiae Committee, Office of the Public Defender, Leon County, and Michael R. Ufferman, Co-Chair, FACDL, Tallahassee, FL; and David A. Demers, Chief Judge, B. Elaine New, Court Counsel, and Alexis M. Walker, Senior Staff Attorney, Sixth Judicial Circuit, St. Petersburg, FL, Responding with comments.
   PER CURIAM.

The Florida Bar’s Criminal Procedure Rules Committee (Rules Committee) has filed its regular-cycle report of proposed rules changes in accordance with Florida Rule of Judicial Administration 2.140(b)(4). We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The Rules Committee proposes amendments to Florida Rules of Criminal Procedure 3.170 (Pleas); 3.180 (Presence of Defendant); 3.213 (Continuing Incompetency to Proceed, Except Incompetency to Proceed with Sentencing: Disposition); and 3.640 (Effect of Granting New Trial). Pri- or to filing its proposed rule changes with the Court, the Rules Committee published a summary of the proposals for comment in the November 1, 2005, issue of The Florida Bar News. See Fla. R. Jud. Admin. 2.140(b)(2). No comments were received. The Board of Governors of The Florida Bar voted unanimously to approve the proposed amendments. See Fla. R. Jud. Admin. 2.140(b)(3). The Court republished a summary of the proposals for comment in the March 1, 2006, issue of The Florida Bar News, and no comments were filed. After reviewing the Rules Committee’s proposals, we adopt the proposed amendments as reflected in the appendix to this opinion.

AMENDMENTS

Rule 3.170(f), Withdrawal of Plea of Guilty, which currently allows a defendant to withdraw a guilty plea before sentencing, is amended to allow a defendant to also withdraw a no contest plea before sentencing. The Rules Committee proposed the amendment in response to Pope v. State, 857 So.2d 271, 272-73 (Fla. 2d DCA 2003) (noting that although rule 3.170(f) provides for the withdrawal of a guilty plea before sentencing, it does not provide for the withdrawal of a no contest plea before sentencing, and noting that “[t]here seems to be no rational basis to create such a distinction”). The present amendment addresses the issue presented by Pope.

Rule 3.180(c), Defendant Absenting Self, is amended by adding new subdivision (2), Sentencing, which allows a court under certain circumstances to proceed with sentencing when a defendant absents himself or herself from the courtroom. The Committee proposed the amendment in response to Capuzzo v. State, 596 So.2d 438, 439-40 (Fla.1992) (explaining that whereas “[rjule 3.180 codifies the well-established principle that defendants may voluntarily waive their right to be present during crucial stages of the trial that occur prior to verdict,” the rule “stops short of guidance regarding waiver by absence after the return of the verdict”). The present amendment addresses the issue presented by Capuzzo.

Rule 3.213, Continuing Incompetency to Proceed, Except Incompetency to Proceed with Sentencing: Disposition, is amended in two respects. First, new subdivision (2) is added to rule 3.213(a), Dismissal without Prejudice during Continuing Incompetency, setting forth a procedure for dismissing charges against persons who are incompetent to stand trial because of retardation or autism. And second, new subdivision (2) is added to rule 3.213(b), Commitment or Treatment during Continuing Incompetency, providing for the involuntary admission of such persons to residential services as provided by law. The Committee proposed these amendments in response to Byrd v. State, 834 So.2d 872, 873 (Fla. 1st DCA 2003) (“[G]iven the Legislature’s clear intention to differentiate between defendants who are incompetent to proceed due to mental illness, which is often curable, and those whose incompetence is due to mental retardation or autism, for which there is no ‘cure,’ the Florida Supreme Court may find it appropriate to consider amending Rule 3.213 to reflect such a distinction.”). Section 916.303(1), Florida Statutes (2005), provides that “[t]he charges against any defendant found to be incompetent to proceed due to retardation or autism shall be dismissed without prejudice.” The present amendment renders the rule consistent with the statute.

Finally, rule 3.640, Effect of Granting New Trial, is amended to delete subdivision (b), Witnesses and Former Testimony at New Trial, which sets forth criteria governing the use of a witness’s former trial testimony at a new trial. The Committee proposed the amendment in response to State v. Billie, 881 So.2d 637, 640 n. 2 (Fla. 3d DCA 2004) (noting that rule 3.640(b) has been superseded by the Florida Evidence Code (Code) and urging the Court and the Rules Committee “to revisit [the rule] with a view toward repealing or revising it”). Rule 3.640(b) was adopted before the Code was enacted, and the Code now addresses this area of law. We adopt the proposed amendment to avoid any potential conflict between the rule and the Code in this respect.

Accordingly, we amend the Florida Rules of Criminal Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struek-through type. The amendments shall become effective January 1, 2007, at 12:01 a.m.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 3.170.PLEAS

(a)-(e) [No Change]

(f) Withdrawal of Plea of Guilty or No Contest. The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty or, with the consent of the prosecuting attorney, allow a plea of guilty or no contest of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty or no contest. The fact that a defendant may have entered a plea of guilty or no contest and later withdrawn the plea may not be used against the defendant in a trial of that cause.

(g)-(i) [No Change]

COMMITTEE NOTES

[No Change]

RULE 3.180. PRESENCE OF DEFENDANT

(a)-(b) [No Change]

(c) Defendant Absenting Self.

(1) Trial. If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of court, or is removed from the presence of the court because of his or her disruptive conduct during the trial, the trial of the cause or the return of the verdict of the jury in the case shall not thereby be postponed or delayed, but the trial, the submission of the case to the jury for verdict, and the return of the verdict thereon shall proceed in all respects as though the defendant were present in court at all times.

(2) Sentencing. If the defendant is present at the beginning of the trial and thereafter absents himself or herself as described in subdivision (1), or if the defendant enters a plea of guilty or no contest and thereafter absents himself or herself from sentencing, the sentencing may proceed in all respects as though the defendant were present at all times.

(d)-(e) [No Change]

COMMITTEE NOTES

[No Change]

RULE 3.213. CONTINUING INCOMPETENCY TO PROCEED, EXCEPT INCOMPETENCY TO PROCEED WITH SENTENCING: DISPOSITION

(a) Dismissal without Prejudice during Continuing Incompetency

(1) If at any time after 5 years after following a determining determination that a person is incompetent to stand trial or proceed with a probation or community control violation hearing when charged with a felony, or 1 year when charged with a misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial or proceed with a probation or community control violation hearing, that there is no substantial probability that the defendant will become mentally competent to stand trial or proceed with a probation or community control violation hearing in the foreseeable future, and that the defendant does not meet the criteria for commitment, it shall dismiss the charges against the defendant without prejudice to the state to refile the charges should the defendant be declared competent to proceed in the future.

(2) If the incompetency to stand trial or to proceed is due to retardation or autism, the court shall dismiss the charges within a reasonable time after such determination, not to exceed 2 years for felony charges and 1 year for misdemeanor charges, unless the court specifies in its order the reasons for believing that the defendant will become competent within the foreseeable future and specifies the time within which the defendant is expected to become competent. The dismissal shall be without prejudice to the state to refile should the defendant be declared competent to proceed in the future.

(b) Commitment or Treatment during Continuing Incompetency.

(1) If at any time after 5 years after following a determining determination that a person is incompetent to stand trial or proceed with a probation or community control violation hearing when charged with a felony, or 1 year when charged with a misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial or proceed with a probation or community control violation hearing, that there is no substantial probability that the defendant will become mentally competent to stand trial or proceed with a probation or community control violation hearing in the foreseeable future, and that the defendant does meet the criteria for commitment, the court shall dismiss the charges against the defendant and commit the defendant to the Department of Children and Family Services for involuntary hospitalization or residential services solely under the provisions of law or may order that the defendant receive outpatient treatment at any other facility or service on an outpatient basis subject to the provisions of those statutes. In the order of commitment, the judge shall order that the administrator of the facility notify the state attorney of the committing circuit no less than 30 days prior to the anticipated date of release of the defendant. If charges are dismissed pursuant to this subdivision, the dismissal shall be without prejudice to the state to refile the charges should the defendant be declared competent to proceed in the future.

(2) If the continuing incompetency is due to retardation or autism, and the defendant either lacks the ability to provide for his or her well-being or is likely to physically injure himself or herself, or others, the defendant may be involuntarily admitted to residential services as provided by law.

(c) Applicability. This rule shall not apply to defendants determined to be incompetent to proceed with sentencing, which is addressed provided in rule 3.214.

COMMITTEE NOTES

[No Change]

RULE 3.640. EFFECT OF GRANTING NEW TRIAL

(a) New Trial for Greater Offense Prohibited. When a new trial is granted, the new trial shall proceed in all respects as if no former trial had occurred except that when an offense is divided into degrees or the charge includes a lesser offense, and the defendant has been found guilty of a lesser degree or lesser included offense, the defendant cannot thereafter be prosecuted for a higher degree of the same offense or for a higher offense than that of which the defendant was convicted.

(b) Witnesses and Former Testimony at New Trial. — The testimony ■given-daring the former-trial may not be read-in evidence at the new-tmt-aniess it is that of a -witness who at the time-of the new trial is absent from the statey mentally incompetent to be a witness,' physically unable to appear-and testify, or dead, in-which-event the-evidence of such witness on the-for-mer-trial may -be-read-in evidence at the-new trial as the same — was—taken and transcribed by the court-reporter- — Before the introduction-of-the-evidence-of-an-absent witness, the party introducing the evidence must show due diligence in attempting to ■trial and-must-show-that-the-witness -iS' not absent by consent or connivance of that part-y-

COMMITTEE NOTES

[No Change]

      . The Court severs from this case and defers consideration of the proposed amendments to rules 3.850 and 3.851 that were offered in response to the Court’s opinion in Nelson v. State, 875 So.2d 579 (Fla.2004).


author: VILLANTI, Judge.

text:
    Victor Lamont JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4928.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 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 Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Victor Lamont Johnson raises four issues in this appeal of his convictions and sentences for fleeing and eluding, leaving the scene of an accident with injuries, and driving with a suspended license. We affirm on two issues, which we write to explain, and reverse on two issues, but only for the purpose of striking duplicate court costs and investigative fees.

In his first issue, Johnson, citing Wright v. State, 446 So.2d 208 (Fla. 3d DCA 1984), claims that his trial counsel provided ineffective assistance in failing to seek to sever the driving with a suspended license charge, which was irrelevant to the other two charges. An ineffective assistance of trial counsel claim is cognizable on direct appeal only if the error is apparent from the face of the record. See Forget v. State, 782 So.2d 410, 413 (Fla. 2d DCA 2001) (citing Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987) (“holding that a defendant may raise the issue of ineffective assistance of counsel on direct appeal when ‘the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue’ ”)). Here, the error was not apparent on the face of the record. Trial counsel’s decision not to seek severance could have been a strategic one. This is a factual question that cannot be determined solely on the basis of the trial record. See Healey v. State, 556 So.2d 488, 489 (Fla. 2d DCA 1990). Thus, we affirm on this issue. Johnson may raise this claim in a Florida Rule of Criminal Procedure 3.850 motion. See Havis v. State, 555 So.2d 417 (Fla. 1st DCA 1989).

Johnson’s second and third issues are interrelated and will be discussed together. At sentencing, the trial court orally imposed total investigative costs of $252, but entered $252 investigative costs for each of counts one and two on the written sentences. Similarly, the trial court orally imposed total court costs of $450 but entered $4.50 court costs for each of counts one and two on the written sentences. Johnson claims this was error for two reasons: (1) there was no evidentiary basis established to support the costs and (2) the trial court did not state a statutory basis to contradict its oral pronouncements. Johnson preserved this claim through his motion to correct sentencing error, which was deemed denied. Wilson v. State, 902 So.2d 340 (Fla. 2d DCA 2005).

The State concedes that the double court cost imposition was error. The State argues that because Johnson failed to object at sentencing to the investigative costs, he waived this error. At sentencing, Johnson stood mute when the State announced it was seeking investigative costs of “$252 to St. Petersburg Police Department.” While Johnson’s silence can reasonably be interpreted as acquiescence, it is only acquiescence as to the single amount claimed. Accordingly, we reject the State’s claim that the double investigative cost error was waived. On remand, the judgments and sentences must be corrected to clearly reflect total court costs of $252 and investigative costs of $450 for both counts.

Finally, we turn to Johnson’s last issue — that restitution was imposed without the presentation of evidence, a hearing, or a waiver of these requirements. The standard of review of a restitution order is abuse of discretion. State v. Hawthorne, 573 So.2d 330, 333 (Fla.1991). Section 775.089(7), Florida Statutes (2004), in pertinent part provides:

Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney.... The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.

(Emphasis supplied.)

Here, the State provided the defense with a notice of restitution prior to trial, the specific amount sought was announced at sentencing, and the trial court ordered this amount and allowed Johnson thirty days thereafter to object. Johnson never objected to restitution before or at sentencing. He first raised the issue some eight months later in his motion to correct sentencing error. In that motion, Johnson argued only that the State failed to comply with the statutory hearing requirement. § 775.089(7). The record is clear that Johnson was offered the opportunity for a hearing but failed to seek such within the allotted time. “Rather, he chose to silently accept the court’s resolution of the questions concerning the amount of restitution .... Under these circumstances, the trial court’s order of restitution will not be reversed.... ” Goodson v. State, 400 So.2d 791, 793 (Fla. 2d DCA 1981). Because Johnson failed to object, despite notice and an opportunity, he waived any right he may have had to a further restitution hearing.

In conclusion, we affirm the trial court’s order denying Johnson’s ineffective assistance of counsel claim because it cannot be raised in this direct appeal; we affirm the trial court’s order of restitution; but we reverse and remand for the entry of amended judgments and sentences reflecting concurrent court costs and investigative costs.

Affirmed in part, reversed in part, and remanded to the trial court with instructions to enter amended judgments and sentences.

FULMER, C.J., and WALLACE, J., Concur.

      . Where the payment of restitution is imposed as a condition of probation, determination of an accurate amount is important because the issue of the probationer's ability to pay may arise in proceedings for revocation of probation. Here, Johnson's restitution was imposed only as a lien.


author: STEVENSON, C.J.

text:
    Dominick J. SALFI, as Personal Representative of the Estate of Madeline Salfi, deceased, Appellant, v. COLUMBIA/JFK MEDICAL CENTER LIMITED PARTNERSHIP d/b/a JFK Medical Center, David Weissberger, M.D. and Medical Specialists of the Palm Beaches, Inc., Appellees.
    Nos. 4D05-864, 4D05-1230.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Rehearing Denied Dec. 13, 2006.

      Dominick J. Salfi of the Law Offices of Dominick J. Salfi, Altamonte Springs, pro se.
    Bruce M. Ramsey of Billing, Cochran, Health, Lyles, Mauro & Anderson, P.A., West Palm Beach, for appellee Columbia/JFK Medical Center Limited Partnership d/b/a JFK Medical Center.
    Marlene S. Reiss of Stephens, Lynn, Klein, La Cava, Hoffman & Puya, P.A., Miami, for appellees David Weissberger, M.D. and Medical Specialists of the Palm Beaches, Inc.
   STEVENSON, C.J.

Madeline Salfi died at JFK Medical Center on June 25, 2001. Following her death, her son, Dominick Salfi, acting as her personal representative, brought seven causes of action against JFK Medical Center, Dr. David Weissberger, and Medical Specialists of the Palm Beaches, Inc. The trial court granted the hospital’s motion to dismiss and the motion for summary judgment filed by Weissberger and Medical Specialists of the Palm Beaches. We affirm in part and reverse in part.

Counts one through three of the complaint were against the hospital. Count one, a wrongful death action, asserted the hospital failed to provide adequate supervision and sought damages for the mental pain and suffering of the deceased’s children, all of whom were over the age of twenty-five when she died. Count two, a survival action, contended the hospital’s negligence did not cause the deceased’s death, but forced her to endure physical and mental pain and suffering and the loss of enjoyment of life. Count three, a survival action, asserted the hospital’s negligence caused the deceased’s death and sought damages for her physical and mental pain and suffering and loss of enjoyment of life. Counts four through six were against Dr. Weissberger and Medical Specialists of the Palm Beaches, who are collectively referred to as “Dr. Weissber-ger.” Count four, a wrongful death action, contended Dr. Weissberger’s negligence caused the deceased’s death and sought damages for the mental pain and suffering of the deceased’s children. Count five, a survival action, asserted Dr. Weissberger’s negligence did not cause the deceased’s death, but forced her to endure physical and mental pain and suffering and the loss of enjoyment of life. Count six, a survival action, contended Dr. Weissberger’s negligence caused the deceased’s death and sought damages for her physical and mental pain and suffering and loss of enjoyment of life. Count seven argued the hospital breached its duty to protect the deceased’s medical records in that some of the records were either lost or destroyed.

We first address whether the trial court erred in dismissing the counts against the hospital. In dismissing count one, the trial court reasoned that the deceased’s adult children were prevented from bringing a cause of action under the Wrongful Death Act for the hospital’s medical malpractice because section 768.21(8), Florida Statutes (2005), prevents children over the age of twenty-five from recovering damages for medical malpractice that results in a parent’s death. We affirm this ruling based on Mizrahi v. North Miami Medical Center, Ltd., 761 So.2d 1040 (Fla.2000), which held that section 768.21(8) does not violate the Equal Protection Clause by precluding recovery by a decedent’s adult children where the cause of death was medical malpractice. We also affirm the trial court’s dismissal of count seven because Salfi has failed to adequately challenge the dismissal on appeal.

We find that Salfi did not waive the right to litigate count two and we therefore accept JFK Medical Center’s concession of error. We also agree with Salfi that the trial court erred by venturing beyond the complaint’s four corners when dismissing count three, the survival action asserting the hospital’s negligence caused the deceased’s death. As we stated in Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1024 (Fla. 4th DCA 1996), “[t]he trial court must look only to the four corners of the complaint and the allegations contained therein should be taken as true without regard to the pleader’s ability to prove the same.” Despite this error, we are compelled to affirm the trial court’s dismissal of count three as the right result albeit for the wrong reason. See generally Robertson v. State, 829 So.2d 901, 906 (Fla.2002) (stating the “longstanding principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record’ ”) (quoting Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999)).

Section 46.021, Florida Statutes, provides that “[n]o cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.” However, section 768.20 states that “[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” As reasoned by the Second District in Niemi v. Brown & Williamson Tobacco Corp., 862 So.2d 31, 33 (Fla. 2d DCA 2003), “when death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under section 46.021.” The Supreme Court of Florida upheld the constitutionality of section 768.20 in Martin v. United Security Services, Inc., 314 So.2d 765, 769 (Fla.1975), because the Wrongful Death Act substitutes the right of close relatives to recover for the pain and suffering caused by their loved one’s wrongful death. While we recognize that reading Martin in conjunction with Mizrahi prevents the deceased’s children and personal representative from successfully litigating either a wrongful death lawsuit or a survival action that contends the alleged malpractice caused the deceased’s death, we are bound to follow these decisions. See Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973) (observing that district courts of appeal are “bound to follow the case law set forth by this Court”).

We next address whether the trial court erred in granting summary judgment in favor of Dr. Weissberger. We affirm the summary judgment on count four for the same reason we affirmed the dismissal of count one — under Florida law adult children over the age of twenty-five do not have a right to recover damages for medical malpractice that results in a parent’s death. Regarding count five, the trial court incorrectly granted summary judgment on the basis that “any survival action has been extinguished by the Wrongful Death Act.” The Second District in Niemi held that “a personal injury action only ‘abates’ if it is first determined that the personal injury resulted in the plaintiffs death.” 862 So.2d at 33. Given that count five asserted that Dr. Weissberger did not cause the deceased’s death and Salfi did not waive the right to litigate the issue, the trial court erred in granting summary judgment. Finally, we affirm the summary judgment on count six based on Martin and Mizrahi.

Accordingly, we reverse the dismissal of count two and the summary judgment on count five. On all other counts, we affirm.

Affirmed in part and Reversed in part.

SHAHOOD and MAY, JJ„ concur.


author: STONE, J. POLEN, J.,

text:
    FLORIDA SUNRISE, LTD., Appellant, v. TRI-M INVESTMENTS OF SOUTH FLORIDA, INC.; Ted Baturin; Traci Baturin; Lawrence Maestri; and Maestri-Murrell, Inc., a Louisiana corporation, Appellees.
    Nos. 4D05-1638, 4D05-2409.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Diane H. Tutt of Diane H. Tutt, P.A., Davie (substituted after filing brief), Steven N. Lippman of Rothstein Rosenfeldt Adler, Fort Lauderdale, and Bradley Winston of Winston & Clark, P.A., Plantation, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., and Philip L. Valente of Silber, Valente & Davis, West Palm Beach, for Appellees-Tri-M Investments of South Florida, Inc., Ted Baturin and Traci Batu-rin.
   STONE, J.

Florida Sunrise, the landlord, appeals a final judgment entered in favor of its former tenant on a counterclaim. We reverse, in part, solely as to the damage award.

Florida Sunrise entered into a lease with TRI-M Investments of South Florida, Inc. (TRI-MSF) in 1995, wherein TRI-MSF rented approximately 7,113 square feet in the Florida Sunrise Tower. The lease was for five years with two five-year renewal options. TRI-MSF used the space to operate an “executive suite” business.

In 1999, Florida Sunrise advised TRI-MSF that the leased space actually contained 9,046 square feet; this dispute ultimately led to TRI-MSF vacating the premises. After TRI-MSF left the premises, Florida Sunrise formed a corporation to run the executive suite business and offered new leases to sub-tenants who wanted to remain.

Florida Sunrise filed a multi-count complaint against TRI-MSF. TRI-MSF filed a counterclaim for breach of lease, breach of implied covenant of good faith and fair dealing, wrongful eviction, tortious interference with business relationships, conversion, and unjust enrichment.

The jury returned a verdict, finding in favor of TRI-MSF on its counterclaim in the amount of $735,000. The verdict form did not delineate the award as to each cause of action.

At trial, TRI-MSF presented testimony from Maestri, the former building manager who is also the former owner of the executive suite business in question, on its claim for conversion damages. Maestri testified that the value of the phone system he had purchased was between $40,000 and $50,000, and the value of the computers, desks, furniture, signage, etc. was between $70,000 and $75,000. In addition, TRI-MSF sought conversion damages for Florida Sunrise taking over its existing subleases.

TRI-MSF also sought damages in the form of lost profits with regard to the remaining causes of action. The lost profits determination was based upon an average of TRI-MSF’s income from 1997 to 1999; this average was then multiplied by ten years, the renewable years remaining on the lease, to ascertain the entire amount. TRI-MSF’s tax returns were entered into evidence.

In addition, Ted Baturin, one of the owners of TRI-MSF, testified as to his calculation of the lost profits of the business. Baturin contended the depreciation claimed should be added back into the net profit calculation because it was not a cash expense of the business. Baturin, as the manager of the business, was not paid a salary. However, he valued his services as an officer of the corporation at $10,000 per year, based on the fact that he averaged twenty-five hours a week running the business.

Patella, a forensic accountant, testified on behalf of Florida Sunrise regarding lost profits. Patella disagreed with Baturin’s calculation, urging that depreciation represented an expense of the business, and, therefore, Baturin should not have added the depreciation amounts back into net profits. Patella also asserted Baturin’s figure of $10,000 per year for officer compensation was incorrect because the median salary of a full time property manager is $38,441. Patella acknowledged that the tax returns, which included a deduction for depreciation, showed a net profit of $16,880 in 1997, $63,603 in 1998, and $31,466 in 1999, which averaged $37,316 for the three-year period. The tax returns did not include an amount for officer compensation.

Another element of the lost profits sought contemplated an extension of the business to provide “virtual” office spaces. Maestri provided the only testimony about the prospect of TRI-MSF offering these services in the future. He explained that virtual offices were set up so an individual would pay a fee per month, entitling that person to have a listing in a phone book, a mailing address, and a receptionist. He stated these offices could be a very profitable part of an executive suite business. When asked to the best of his knowledge if virtual offices were part of TRI-MSF’s executive suite business, he replied, “Because I started doing these in Baton Rouge, I called Ted and said, ‘Ted, I’m doing these in Baton Rouge. You need to think about these in Florida,’ and I was going through that office and preparing to do that.”

With respect to the tortious interference with business relationships claim, Baturin testified he was never able to entertain firm offers to buy the business because Florida Sunrise “scared all of the buyers away.” Baturin said there was a $120,000 offer to buy the business, which they did not accept because their target price was $300,000.

Florida Sunrise argues that the lost profit damages cannot be sustained regardless of how the jury arrived at the ultimate amount. Under the facts of this case, we agree.

First, Florida Sunrise’s contention that depreciation should have been deducted in determining net profits is correct. See Orlando Orange Groves Co. v. Hale, 119 Fla. 159, 161 So. 284, 292 (1935) (citation omitted) (finding “net profits, generally speaking, implies what remains in the conduct of a business after deducting from its total receipts the expenses incurred in carrying on the business and that to such expenses may be charged ... depreciation”); Southern Bell Tel. & Tel. Co. v. Kaminester, 400 So.2d 804, 807 (Fla. 3d DCA 1981) (stating that depreciation would have to be considered in computing net profits).

Second, the evidence as to virtual offices being provided was simply too speculative, and any amount awarded for this prospective extension of the business should not have been included in the determination of lost profits.

Although it has been recognized that business can recover prospective profits notwithstanding a lack of “track record,” the party must prove (1) causation and (2) a “standard by which the amount of damages may be adequately determined.” Halliburton Co. v. Eastern Cement Corp., 672 So.2d 844, 846 (Fla. 4th DCA 1996) (quoting W.W. Gay Mech. Contractor, Inc. v. Wharfside Two Ltd., 545 So.2d 1348 (Fla.1989)).

In Halliburton, we found lost profits too speculative where they “would purportedly have resulted from the operation of 4 additional systems, which the buyer says it would have purchased sometime in the future if the one system sold under the contract in suit had performed as warranted.” Id. at 847 (emphasis in original). We reasoned, “[a]ll that was offered was a hope of commercial fortune hanging from a thin thread of ‘what-ifs’ — buoyed by the buyer’s after-the-fact testimonial conviction that success and profits would surely have been there for the taking.” Id.

In North Dade Community Development Coyp. v. Dinner’s Place, 827 So.2d 352, 353 (Fla. 3d DCA 2002), the court found lost profits too speculative when “the one page of projected earnings in the prospectus was little more than an unsupported wish list of what the lessee hoped would occur in the coming years.” The court found this evidence insufficient “to satisfy the mind of a prudent, impartial person as to the amount of profits lost as a result of the lessor’s breach.” Id. (citations omitted).

Here, Maestri merely testified that he had suggested to Baturin that the executive suite business expand into providing virtual office space, a venture only Maestri claimed would have been profitable for TRI-MSF. We can discern no sound basis to distinguish this from the hope of commercial fortune which was insufficient to sustain a lost profit award in Halliburton. Further, as the court reasoned in Dinner’s Place, Maestri’s testimony here equates to “an unsupported wish list” of what TRI-MSF may have hoped to occur in the remaining years of the lease.

Similarly, we find Baturin’s testimony about potential buyers being scared away by Florida Sunrise too speculative, so that no damages should have been awarded for that aspect of the tortious interference claim. As to Florida Sunrise taking over the business and offering new leases, those damages, to the extent authorized for tortious interference, are properly subsumed in the conversion lost profit damages.

We also agree that some amount for officer compensation should be deducted in the net profit calculation. See Innkeepers Int’l, Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla. 4th DCA 1975) (holding expenses of labor are to be taken into consideration in establishing lost profits); Sostchin v. Doll Enter., Inc., 847 So.2d 1123 (Fla. 3d DCA 2003) (citation omitted) (stating, “In proving damages caused by lost net profits, a corporation, in arriving at the net loss, must deduct the expense of salaries paid to its officers ...”); Kaminester, 400 So.2d at 804 (holding same). In the case at bar, the record is consistent that $10,000 was a sufficient amount to be deducted from net profits, where Baturin testified that the executive suites business was run without the benefit of a full-time property manager.

Consequently, we find a portion of the $735,000 award is sustainable. The tax returns, including depreciation, provide concrete evidence as to the lost profit average for the remaining renewable ten years on the lease, less a deduction of $10,000 per year for officer compensation. In addition, the jury could have properly included conversion damages in its award based on Maestri’s testimony. The remaining portion of the damage award, however, is not sustainable, as it could only have been based on the speculation regarding virtual office space and Baturin’s speculative testimony regarding offers to buy the business.

Therefore, we reverse and remand this case for remittitur. As we realize the verdict form in this case leaves the specific damage award for each cause of action indeterminable, we remand for the trial court to determine an appropriate remitti-tur based on the highest damage award sustainable from the evidence presented at trial, consistent with this opinion. In the event the trial court is unable to determine an appropriate amount for remittitur, or TRI-MSF declines to accept the remittitur, we remand for a new trial. See Tobias v. Osorio, 681 So.2d 905 (Fla. 4th DCA 1996); Sutter v. Hammond, 545 So.2d 497 (Fla. 4th DCA 1989).

We also note that the final judgment states that it is against Florida Sunrise and its assigns. The judgment should not have included the language and its assigns. Accordingly, we direct that the trial court not include this language in any subsequent judgment.

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

STEVENSON, C.J., concurs.

POLEN, J., concurs in part and dissents in part with opinion.

POLEN, J.,

concurring in part and dissenting in part.

I agree with the majority opinion in all respects except for the reversal of damages pertaining to appellees’ claim for tor-tious interference with their attempts to sell the business. As to that claim, I would hold there was sufficient competent, substantial evidence to make this a jury-question, and affirm.

      . for Florida Sunrise

      . Though not addressed by the parties, our examination of this tax return indicates that the net profit for that year was $54,759 and, therefore, it is unclear how Patella arrived at the $63,303 figure.

      . We do not rely on Baturin’s calculation because it failed to account for depreciation, nor do we rely on Patella's calculation because it was based on an inflated officer compensation amount.