author: PER CURIAM.

text:
    The SCOTTS COMPANY, a foreign corporation, Scotts-Sierra Horticultural Products Company, a foreign corporation, and Bob Santana, Appellants/Cross-Appellees, v. HACIENDA LOMA LINDA, a foreign corporation, Appellee/Cross-Appellant.
    No. 3D05-1331.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Rehearing and Rehearing En Banc Denied Nov. 14, 2006.

      Clarke Silverglate Campbell Williams & Montgomery and Dennis M. Campbell and Karen H. Curtis, Miami, for appellants/cross-appellees.
    Joseph, Jack & Miranda, P.A., and Susan S. Lerner, Miami, for appellee/cross-appellant.
    Before LEVY and GREEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The Scotts Company, its subsidiary, Scotts-Sierra Horticultural Products Company [collectively “Scotts”], and employee Bob Santana, appeal an order denying their motion to dismiss on forum non con-veniens grounds. Plaintiff Hacienda Loma Linda [“Hacienda”] cross-appeals. We reverse the order.

The crux of this litigation is Hacienda’s claim that a Scotts’ product damaged and/or destroyed its orchid crops. Hacienda brought this action against Scotts for damages in Miami-Dade County Circuit Court. Scotts and Santana filed motions to dismiss based on forum non conveniens. After a hearing, during which the parties hotly contested the application of the Kinney factors, the court denied the dismissal motion.

At the hearing, the following facts were developed. Hacienda is a Panama corporation whose principle place of business is in Panama. Hacienda’s orchid nurseries are located in Panama and the alleged damage to the plants occurred there. All of Hacienda’s officers and employees are in Panama. Hacienda’s President, Dr. Juan Arias, resides in Panama, but he has a home in Miami-Dade County. He has an office in his Miami home where he maintains business records. He frequents Florida in order to promote his business. Ninety-one percent of Hacienda’s orchids are sold to Miami-Dade County clients. Dr. Arias met Santana at a trade show in Florida where Hacienda allegedly first learned of the Scotts product at issue. Hacienda contends that its lawsuit will not be entertained in Panama courts because it has first filed this action in the United States.

The ties to the forum state are as follows: Scotts, an Ohio corporation, has a research facility in Apopka, Florida, where the subject product was tested. The product is assembled and tested in South Carolina. Santana is based in Miami-Dade and is Scotts’ regional representative. Scotts has stipulated to submitting itself to the Panama courts’ jurisdiction and to satisfying any Panama court judgment, subject to its appeal rights.

When we subject the facts recited above to the test enunciated in Kinney, we conclude that the court should have granted the forum non conveniens dismissal motion. Kinney requires that

(1) [a]s a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. (2) Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice. (3) If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. (4) If he decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

Kinney, 674 So.2d at 90.

As to the first Kinney factor, the availability of an adequate alternate forum, there is no disagreement that Panama is an available forum that can resolve this dispute. The parties’ contention seems to center on whether Panama has a preemptive jurisdiction doctrine that will bar a suit filed there if it has been filed in another forum. However, our review of the record evidence leads us to conclude that under the circumstances of this case, there is no pre-emption and Panama will be an adequate alternate forum available to resolve this dispute.

Next, under Kinney, we consider the private interests in this litigation. It seems clear that the evidence and the vast majority of the witnesses in this case are located in Panama. The events took place there, and Scotts’ employees traveled there to observe Hacienda operations, the application of Scotts’ product, and later, the destruction of the damaged plants. Additionally, the plaintiff is a Panama corporation with its nurseries in Panama.

The impracticability and expense of translating all the documents involved from Spanish to English also militate against Florida being the forum of choice. The fact that Scotts markets its product extensively in Florida with great economic success is insufficient, without more, to support a conclusion that the private interests favor Florida as the forum for the lawsuit. Tananta v. Cruise Ships Catering & Servs. Int’l, 909 So.2d 874, 886 (Fla. 3d DCA 2004) (en banc), review denied, 917 So.2d 195 (Fla.2005). Moreover, we do not afford the plaintiffs choice of forum any special weight because the plaintiff is a foreign corporation. Mursia Invs. Corp. v. Industria Cartonera Dominicana, 847 So.2d 1064 (Fla. 3d DCA 2003); Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 621 n. 3 (Fla. 4th DCA 1999); Value Rent-A-Car, Inc. v. Harbert, 720 So.2d 552, 555 (Fla. 4th DCA 1998). Therefore, the private interests are not at or near equipoise; they favor dismissal.

Turning to the remaining Kinney factors, we only mention that as to the public interests, Florida has no interest in adjudicating the dispute of a Panama corporation whose property was injured in Panama by events taking place there. We see no ties to Florida in the record that would merit retention of the lawsuit here. See Tananta, 909 So.2d at 888.

Lastly, there would be no inconvenience or undue prejudice to Hacienda reinstating the suit in Panama, its country of domicile. Scotts has stipulated to its appearance there, and has stipulated to producing its personnel and discovery there. As an additional safeguard, the parties must also stipulate as a condition of dismissal that the court retain jurisdiction in the event the Panama court does not entertain the case based on pre-emption. See Kawasaki Motors Corp. v. Foster, 899 So.2d 408 (Fla. 3d DCA), review denied, 915 So.2d 1196 (Fla.2005); Mursia. The trial court should reserve jurisdiction to address this issue if this become necessary.

Based on the foregoing, we reverse the order denying dismissal, and remand for entry of an order granting same.

Reversed and remanded.

      . Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla.1996).


source: Caselaw Access Project

author: BAILEY, JENNIFER D., Associate Judge.

license: Public Domain

text:
    Lester Perry CROWE, Appellant, v. Charles LOWE and Wayne Hildebrand, Appellees.
    No. 4D04-4032.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Rehearing Denied Dec. 20, 2006.

      John P. Wiederhold of Wiederhold & Moses, P.A., West Palm Beach, and Walter J. Postula of Walter J. Postula, Esquire, North Palm Beach, for appellant.
    Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellee Charles Lowe.
   BAILEY, JENNIFER D., Associate Judge.

Appellant, Lester Perry Crowe (“Crowe”), the plaintiff below, sued Appel-lees, Charles Lowe (“Lowe”) and Wayne Hildebrand (“Hildebrand”), for damages resulting from injuries sustained while settling a car racing dispute. Crowe, Hildebrand, and Lowe were all involved in racing at the Thundercross Speedway Raceway in Okeechobee, Florida. That night, Hildebrand was racing in Lowe’s car when Crowe’s car collided with Lowe’s, damaging both cars and knocking both out of the night’s races. Crowe was known to habitually drop by a local bistro known as Posey’s Corner after a Saturday night of racing. Crowe alleged below that Hildebrand and Lowe, upset over the collision, went to Posey’s Corner with the intent to confront and injure him. A confrontation between the men ensued at Po-sey’s Corner, resulting in a fracas during which, Crowe alleged, Hildebrand attacked him and inflicted neck and shoulder injuries. Crowe also alleged that Lowe conspired with Hildebrand to confront and injure him. Lowe asserted he was an innocent bystander. During the trial, the judge excluded deposition testimony of witness James Bennett, and the testimony of another witness, Robert Lilly, who was struck by Lowe in the melee. The trial court abused its discretion in excluding this evidence and therefore, we reverse.

As to the admission of the deposition, Crowe’s counsel timely served a subpoena prior to trial at Bennett’s address in Palm Beach Gardens. When the lawyer followed up with a message on Bennett’s cell phone, Bennett called back and told the lawyer he had moved to Atlanta, Georgia, and would not be back to West Palm Beach for trial. Bennett’s wife, who had actually received the subpoena from the process server, also called the attorney and told him that Bennett had moved to Atlanta. When Crowe’s attorney attempted to serve Mrs. Bennett to come before the court to testify that Bennett had moved, his process server found the house empty, without occupants or furniture. The trial court then issued an order to show cause as to why Bennett should not be held in contempt for failing to honor the subpoena. The sheriff testified that when he went out to serve the show cause order at the Palm Beach Gardens address, the house was unoccupied. The deputy checked for other addresses for Bennett to no avail.

A hearing was held on the use of the deposition. Crowe’s attorney was sworn and testified as to his conversations with Bennett and Bennett’s wife and his inability to bring either of them to court to testify, and the deputy testified as to his fruitless attempt to serve the order to show cause and to otherwise locate Bennett in the area. At the conclusion of the hearing, the trial court excluded the deposition, apparently concluding that the evidence was insufficient to establish that Bennett was out of state. Although Crowe clearly raised the issue of his attempt to procure attendance through subpoena, which was the basis for the trial court’s order to show cause, the trial court did not address this as a basis for admitting the deposition. Finding the failure to admit the deposition to be an abuse of discretion, we reverse.

The standard of review regarding the admissibility of evidence is whether there was an abuse of discretion. Castaneda v. Redlands Christian Migrant Ass'n, 884 So.2d 1087, 1090 (Fla. 4th DCA 2004). The admissibility of deposition testimony is governed by Florida Rule of Civil Procedure 1.330. “Failure to permit the use of deposition testimony when authorized pursuant to the Rules is reversible error.” Castaneda, 884 So.2d at 1092. The rule provides two avenues to admit the Bennett deposition: rule 1.330(3)(B), which provides for admissibility where the witness is out of state and the absence was not procured by the offering party and rule 1.330(3)(D), which permits the use of the deposition where the party offering the deposition has been unable to procure the attendance of the witness by subpoena.

The record reflects that irrespective of where Bennett had moved, a subpoena had been served upon him which the trial court determined was valid and could form a basis for its order to show cause. Bennett did not respond to the subpoena. Therefore, Crowe was unable to procure Bennett’s attendance by subpoena, even though Crowe had resorted to the court for enforcement through an order to show cause. This ground alone dictates admission of the Bennett deposition.

Considering the matter under rule 1.330(3)(B), the trial court found that the proffer from Crowe was insufficient to establish that Bennett was out-of-state. Evidence of the witness’s unavailability is required under the rule. Haverley v. Clann, 196 So.2d 38 (Fla. 2d DCA 1967); Fishman v. Liberty Assocs., Inc., 196 So.2d 493 (Fla. 3d DCA 1967). Proof which raises a reasonable presumption is sufficient to provide the basis to admit the deposition. Dickson v. Feiner’s Org., Inc., 155 So.2d 703, 704 (Fla. 2d DCA 1963). In the ease at hand, the sworn testimony of the attorney and the deputy were sufficient to establish a reasonable presumption that Bennett was indeed in Atlanta, Georgia. See Fishman, 196 So.2d 493. It was an abuse of discretion to prohibit use of the deposition.

For purposes of appeal, however, the court must examine the entire record to determine whether the exclusion of the deposition resulted in a miscarriage of justice. § 59.041, Fla. Stat. (2004); Nat’l Union Fire Ins. Co. v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000). James Bennett was a key witness in Crowe’s case because he was the only witness who could place Lowe conspiring with Hildebrand in the pit at the racetrack where Hildebrand announced his intent to settle it with Crowe, with punches if necessary. Bennett’s testimony was critical to establishing that Lowe knew the purpose of the trip to Posey’s Corner and knew of Hildebrand’s intentions to use violence if necessary towards Crowe. Where the excluded Bennett testimony was the only direct testimony which evidenced Lowe’s prior knowledge of Hildebrand’s intent to fight Crowe at Posey’s Corner, and where Lowe asserted he was an innocent bystander, failure to admit the deposition was error.

The trial court also erred in limiting the testimony of Lilly, Crowe’s witness. Lilly was at Posey’s Corner that night. Crowe sought to call Lilly to testify that Lowe punched Lilly while Hildebrand was attacking Crowe. Again, Lowe’s level of knowledge and participation in the night’s events was the significant issue as to his liability. Defense counsel argued that it was a completely collateral incident and the court excluded Lilly’s testimony on the point. Crowe proffered Lowe’s testimony in support of permitting Lilly to testify. Lowe testified that while Hildebrand was chasing Crowe, Lowe said Lilly “kept cussing, pushing his finger,” so he hit him on the jaw to shut him up, thinking he could have been one of Crowe’s sponsors. Another witness, Leslie Potter, testified that it was all happening at the same time. As Lowe’s participation in the conspiracy was a key issue, his punching Lilly at roughly the same time that Hildebrand was hitting Crowe was not a separate event, but rather part of the same brawl in Posey’s Corner’s parking lot that night. This evidence should have been presented to the jury for its consideration on the claim that Lowe was involved in the attack. The jury, on the verdict interrogatory, rejected the conspiracy theory against Lowe. As such, the failure to admit the deposition and exclusion of the Lilly evidence meets the statutory burden of a miscarriage of justice and requires reversal.

We therefore reverse and remand for a new trial on the merits.

Reversed and Remanded For New Trial.

WARNER and KLEIN, JJ., concur.


author: DAVIS, Judge.

text:
    In re BABY R.P.S. J.C.J., Appellant, v. Heart of Adoptions, Inc., Appellee.
    No. 2D05-2582.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 2006.
    Rehearing Denied Dec. 4, 2006.

      Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa; and Martha-Irene Weed of Law Office of Martha-Irene Weed, Tampa, for Appellant.
    Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa, and Jeanne T. Tate of Jeanne T. Tate, P.A., Tampa, for Appellee.
   DAVIS, Judge.

J.C.J., the named father of Baby R.P.S., challenges the final summary judgment terminating his parental rights to the child pursuant to chapter 63, Florida Statutes (2004) (the “Florida Adoption Act”). See §§ 63.012-.235. Because our decision is grounded entirely on a legal issue, we reverse without providing a lengthy recitation of the facts.

Heart of Adoptions, Inc. (“the Agency”), filed a petition to terminate J.C.J.’s parental rights pending adoption pursuant to section 63.087. The trial court found that J.C.J.’s consent to adoption was not required here pursuant to section 63.062 because J.C.J. had failed to comply with section 63.054, which requires “an unmarried biological father” to “file a notarized claim of paternity form with the Florida Putative Father Registry.” § 63.054(1). The trial court concluded that since J.C.J.’s consent to the adoption was not required, the Agency was entitled to the judgment terminating his parental rights as a matter of law.

As explained in A.S. v. Gift of Life Adoptions, Inc., 944 So.2d 380, 2006 WL 2033896 (Fla. 2d DCA July 21, 2006), the statute that authorizes the trial court to terminate parental rights pending adoption does not apply to cases, such as this, where the father has failed to comply with the registration requirements of section 63.062. See § 63.089(3). Section 63.089(3) provides that “[t]he court may enter a judgment terminating parental rights pending adoption if the court determines by clear and convincing evidence, supported by written findings of fact, that each person whose consent to adoption is required under s. 63.062 ” meets one of nine specified criteria. (Emphasis added.) Under section 63.062, those whose consent is required include unmarried biological fathers who have registered with the Putative Father Registry. However, since J.C.J. failed to register with the Putative Father Registry, his consent to R.P.S.’s adoption was not required and the grounds for terminating parental rights listed in section 63.089(3) do not apply to him.

Additionally, J.C.J. is not a “parent” under the Florida Adoption Act. Chapter 63 does not include a definition of parent but rather refers to section 39.01(49), Florida Statutes (2004), which defines a parent as a “man whose consent to the adoption of the child would be required under s. 63.062(1).” By alleging in its petition that J.C.J.’s consent is not required, the agency admitted that J.C.J. is not a parent as defined by statute. Furthermore, section 63.087(5) states that in the termination proceeding, a summons must be served on “any person whose consent is required but who has not provided that consent.” This language indicates that the statute does not contemplate that one such as J.C.J. will be a party to a termination of parental rights action.

Although the trial court found that J.C.J.’s consent to the adoption was not required due to his failure to register, the trial court nevertheless terminated J.C.J.’s parental rights pursuant to section 63.089(3). This was error. Since section 63.089(3) specifies the grounds upon which the trial court may terminate the parental rights of a parent whose consent is required, that section cannot apply to J.C.J. since his consent was not required and he was not a parent. Even if J.C.J. was a person whose consent was required, none of the grounds specified in section 63.089(3) apply to J.C.J. Thus, the trial court erred in terminating the rights, if any, of a party not properly contemplated by the statutory section stated.

We acknowledge that J.C.J. did not argue the foregoing inapplicability of the termination proceedings below. However, at the time this matter was before the trial court, our opinion in A.S., 944 So.2d 380, had not yet been published. Since the opinion was not issued until after the original briefs were filed, we invited the parties to file supplemental briefs addressing the issue of whether the termination of parental rights pending adoption provisions applied to an individual whose consent was not required due to his failure to register as required by section 63.062. While the general rule is that recent case law will be applied to cases pending before this court only if the issue was preserved at the trial level, see Rivera v. Publix Super Mkts., Inc., 929 So.2d 1184 (Fla. 4th DCA 2006), due to the fundamental nature of this error, we choose to address this issue even though it was not preserved, see Sanford v. Rubin, 237 So.2d 134 (Fla.1970) (defining fundamental error as that which goes to the foundation of the case or to the merits of the cause of action).

In the instant case, the error goes to the foundation or merits of the action because it allows the potential parental rights of the biological father to be terminated pursuant to a statute that was not written to, and by its terms does not, apply to him. The erroneous judgment was based on a factor not included in the statutorily enumerated factors that authorize the trial court to terminate one’s parental rights.

Moreover, the error is magnified because it prevents this same father from seeking meaningful review of the statutes that presumably negate his parental rights. Section 63.062(2)(d) states that an unmarried biological father who fails to comply with the registration requirements “is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required.” By this statute, such a father is not a party to the adoption proceeding, nor is he entitled to notice of the adoption. However, should one such as J.C.J. desire to contest either the applicability or the constitutionality of section 63.062, the proper forum would be the adoption proceeding rather than the termination proceeding. The failure to register as required by section 63.062 is the basis for proceeding with the adoption without his consent, not the basis for the termination of his parental rights. Even though one such as J.C.J. would not receive formal notice of the adoption proceeding, should he have actual notice, he could move to intervene in the proceeding, alleging that due to the inapplicability or the unconstitutionality of the section 63.062 registration requirements, his consent to the adoption is required and he is an interested party. It would be at this juncture in the adoption proceedings that the registration requirements of the statute would be ripe for litigation.

However, the unmarried biological father could not protect his rights at this stage either because the termination of his rights would already be considered final. Section 63.112 states that a petition for adoption shall attach a certified copy of the judgment of termination of parental rights. If the erroneously entered judgment terminating parental rights is affirmed or not appealed, the res judicata effect of that judgment would preclude the father from seeking to become a party to the adoption or from intervening in the adoption because his “rights” would have already been finally terminated. As a result, an erroneously entered judgment terminating the parental rights of a biological father who fails to comply with the registration statute effectively denies that father the opportunity to challenge the registration requirements of section 63.062. Because we conclude that this constitutes fundamental error, we reverse.

As we did in A.S., 944 So.2d 380, however, we direct the trial court on remand to first consider the pending paternity action to determine whether J.C.J. meets the statutory definition of a parent, which will determine whether his consent to the adoption is required. Only then may the termination and adoption proceedings be addressed.

Reversed and remanded for further proceedings consistent with this opinion.

WHATLEY and STRINGER, JJ., Concur.

      . Due to the sensitive nature of an adoption case, and especially in light of the circumstances of the parties to this case, we find it appropriate to provide only minimal factual information so as to protect the parties' identities, especially that of the child.

      . It has been argued that A.S., 944 So.2d 380, is distinguishable since, in that case, the father had a paternity action pending in the same court at the time that the summary judgment was granted. We do not see the distinction. First, the language of the opinion that found the trial court without authority to grant the termination does not reflect that the termination was dependent on the pending paternity action. Additionally, in this case, J.C.J. had filed a paternity action in St. John's County prior to the Agency's filing of the termination of parental rights action. That matter had been transferred to Hillsborough County after the filing of the termination proceedings but was pending in another division of the circuit court in Hillsborough County at the time the trial court held the hearing on the motion for summary judgment.

      . It appears that the trial court and the Agency consider the proceeding pursuant to section 63.087-.089 to be more in the nature of a declaratory action by which the trial court may declare that there are no parties whose consent to the adoption is required. Although this may be a desirable procedure, the legislature did not write the termination provisions in that manner.


author: ALTENBERND, Judge.

text:
    Melvin Stacy JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1780.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 2006.
    Rehearing Denied Nov. 22, 2006.

      James Marion Moorman, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Melvin Stacy Jenkins appeals his judgment and sentence for manslaughter. We conclude that Mr. Jenkins established his claim of self-defense and that the State failed to present legally sufficient evidence to overcome that defense. Accordingly, we reverse the judgment.

Mr. Jenkins is a forty-two-year-old roofer who lived in a run-down mobile home park in Hillsborough County. He and his family rented two small traders that were divided by a narrow driveway between them. He lived in one trailer, and his wife, his daughter, and his son lived in the other. Mr. Jenkins was charged with manslaughter with a deadly weapon, arising out of an altercation with twenty-five-year-old Bryan Cerezo that occurred just outside of Mr. Jenkins’ trailers. The altercation ended when Mr. Jenkins inflicted a single, fatal stab wound to Mr. Cerezo.

At trial, the State presented the evidence of three witnesses to this event, all of whom were neighboring residents in the same trailer park and were unrelated to Mr. Jenkins. The first witness was a man who testified with the help of a Spanish interpreter and who described witnessing the entire altercation, including the stabbing, but could not testify about the words spoken between the two men. The second witness was an eighty-year-old man who spoke English and heard some of the words exchanged between Mr. Jenkins and Mr. Cerezo and saw the initial stages of the altercation, but whose view did not permit him to see the knife or the stabbing. The third witness was a man whose view of the altercation was largely obstructed but who overheard some of the words the two men exchanged. Mr. Jenkins testified in his own defense and claimed that the stabbing was done in self-defense. Much of the evidence presented by Mr. Jenkins and the State’s witnesses was undisputed, although each witness provided a different perspective of the events.

On March 19, 2004, just before 3 p.m., Mr. Jenkins was in his trailer when his teenage daughter arrived and told him that she had just had a disagreement with a woman at a nearby apartment complex. The nature of this disagreement was never developed at trial. At about this same time, Mr. Jenkins heard someone banging on the door to his wife’s trailer. The person banging on the door was Bryan Cerezo. Mr. Jenkins had never met Mr. Cerezo prior to this day, but apparently he learned from his daughter that this was the boyfriend of the woman involved in the disagreement.

Mr. Jenkins called out to Mr. Cerezo and told him that no one was home and that he should quit banging on the door and leave. Mr. Cerezo claimed he was looking for Mr. Jenkins’ son and refused to leave, even though Mr. Jenkins asked him repeatedly to do so. Mr. Jenkins was preparing to go to work and had his six-inch sheath knife on his belt. Mr. Jenkins testified, and one of the State’s witnesses confirmed, that Mr. Jenkins typically carried this knife on his belt for use in his work. His remaining roofing tools were located by the door.

While he was speaking to Mr. Cerezo, Mr. Jenkins came out of his trailer holding his hammer. Mr. Cerezo continued to verbally confront Mr. Jenkins. The confrontation was loud enough to attract the attention of the three witnesses who testified for the State. These witnesses described Mr. Cerezo as “furious” and “a wild man.” Mr. Jenkins testified that Mr. Cerezo was acting like “a lunatic.” One eyewitness indicated that Mr. Cerezo looked larger and stronger than Mr. Jenkins. Mr. Cerezo claimed that he was a gang member and that he would come back to the mobile home park with “20 guns and silencers and kill everybody.” One of the witnesses testified he heard Mr. Cerezo yelling, “I’m going to kill you. You’re a dead man.” Another witness heard Mr. Cerezo threaten to burn down Mr. Jenkins’ trailer. This latter witness “thought” he heard Mr. Jenkins reply, “Come on.” Mr. Jenkins testified that he told Mr. Cerezo “to take his gang banging ass out of there.”

Mr. Cerezo told Mr. Jenkins to throw down the hammer and fight like a man. This statement was heard by one of the State’s witnesses who saw Mr. Jenkins toss his hammer to the side. At this point, the two men were apparently on the edge or in the common driveway that essentially served as the street for the row of very small trailer lots. According to Mr. Jenkins, he told Mr. Cerezo, “I didn’t come down here to fight.” Mr. Jenkins testified that Mr. Cerezo took a couple of steps as if he was going to leave and then “just ran right back to me and just blasted me on the side of my head.” One witness described this punch as a left-handed one. Another witness saw Mr. Cerezo land this punch. Both of these witnesses saw the resulting cut to the left side of Mr. Jenkins’ face, which began to bleed down his face. One of the State’s witnesses testified that Mr. Jenkins “just wobbled. His legs wobbled and he just stood there.” Another said that Mr. Jenkins did not fall down, but his knees “buckled.” One witness saw Mr. Jenkins step back. Mr. Cerezo also backed up after landing this punch.

Mr. Jenkins took out his sheath knife. Only one of the State’s witnesses saw the knife, and this witness testified that Mr. Jenkins “showed [Mr. Cerezo] the knife.” Mr. Jenkins and one of the other witnesses testified that Mr. Cerezo pulled his shirt open and pulled his arm back behind his body where Mr. Jenkins could not see it. According to Mr. Jenkins, Mr. Cerezo claimed that he had “a dock” with which he was going to “cap” Mr. Jenkins. Mr. Cerezo then clenched his fist and charged at Mr. Jenkins again. Mr. Jenkins’ knife entered the left side of Mr. Cerezo’s chest, consistent with Mr. Jenkins raising it with his right hand into a defensive position in response to a left-handed punch. The only witness to actually see the stabbing testified that Mr. Jenkins did not swing the knife, but instead the knife appeared to “kick out” in reaction to the second punch.

Mr. Cerezo backed up, walked a short distance away, collapsed, and died. At this point, one of the witnesses called 911. The medical examiner confirmed that Mr. Cerezo died from a single knife wound that caused fatal injuries to his heart and liver. The six-inch wound was essentially level, with no apparent twisting, and primarily from the left side to the right without a hilt bruise, suggesting that the knife entered the body from a right-handed motion without enough force to thrust the hilt against or into the body.

When Mr. Cerezo collapsed, Mr. Jenkins approached one of the neighbors who had witnessed the event. He told the neighbor that he did not mean to stab Mr. Cerezo— he had intended only to “nick” him. Mr. Jenkins fled from the scene but turned himself in several days later when he knew that a warrant was outstanding.

The State presented several diagrams and witnesses to establish that the fight took place in the common driveway and not on “the premises” of either of the two trailer lots rented by the Jenkins family. The State also explored with the witnesses whether Mr. Jenkins might have been able to escape from the confrontation before acting in self-defense. The first witness was asked whether he saw Mr. Jenkins “walk away after the victim punched him,” and responded, “He backed up, but the guy gave him another punch.” This witness testified that Mr. Jenkins never took a step toward Mr. Cerezo. Another witness testified that Mr. Jenkins might have been able to retreat a couple of feet, but he did not get a chance to because Mr. Cerezo “[came] at him too fast.” The prosecutor asked Mr. Jenkins if anyone stopped him from walking away after the first punch, and Mr. Jenkins replied, “Where was I going to walk to?”

Mr. Jenkins made a motion for judgment of acquittal at the end of the State’s case and renewed the motion after he presented his defense. The jury was then instructed on the charge of manslaughter with a weapon and other lesser-included charges. The jury received instructions on self-defense. Because there was some question as to where this altercation occurred and whether that location would qualify as the curtilage of Mr. Jenkins’ residence, the jury heard instructions on self-defense in general as well as self-defense for situations occurring in a defendant’s home.

The jury deliberated more than six hours and asked questions along the way. Ultimately, they found Mr. Jenkins guilty of the lesser offense of manslaughter without a weapon, an apparent partial jury pardon. Mr. Jenkins was sentenced as a habitual offender to twenty-five years’ imprisonment, followed by five years’ probation.

Pursuant to section 776.012, Florida Statutes (2004), a “person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” See also Weiand v. State, 732 So.2d 1044, 1049 (Fla.1999). A person under attack has a duty to “retreat to the wall” before taking a life; the person must have used all reasonable means in his power, consistent with his own safety, to avoid the danger and to avert the necessity of taking human life. Soberon v. State, 545 So.2d 490 (Fla. 3d DCA 1989).

When a person is attacked within his or her own home, however, a different standard applies.

[W]hen a person is in his own home and he or the members of his family are assaulted or placed in apparent imminent danger of great personal injury, he has the right to stand his ground and meet force with force, even to the extent of taking life if he actually believes, and the circumstances and surrounding conditions are such that a reasonably cautious and prudent person would believe, danger of death or great personal injury to be imminent, at the hands of [the] assailant.

Harris v. State, 104 So.2d 739, 743 (Fla. 2d DCA 1958); see also Weiand, 732 So.2d at 1049. In some cases, this “castle doctrine” is described as follows: “[W]hen one is violently assaulted in his own house or immediately surrounding premises, he is not obliged to retreat.” See Hedges v. State, 172 So.2d 824, 827 (Fla.1965) (emphasis added).

While the defendant may have the burden of going forward with evidence of self-defense, the burden of proving guilt beyond a reasonable doubt never shifts from the State, and this standard broadly includes the requirement that the State prove beyond a reasonable doubt that the defendant did not act in self-defense. Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984). If a defendant establishes a prima facie ease of self-defense, the State must overcome the defense by rebuttal, or by inference in its case-in-chief. State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998) (citing Sneed v. State, 580 So .2d 169, 170 (Fla. 4th DCA 1991)). If the State fails to sustain this burden of proof, the trial court is duty-bound to grant a judgment of acquittal in favor of the defendant. Id. (citing Brown, 454 So.2d at 599). Here, the State did not present evidence sufficient to overcome Mr. Jenkins’ claim of self-defense; in fact, the testimony of the State’s witnesses supported that defense.

We have struggled with this case nearly as hard as the jury struggled. If Mr. Jenkins had stayed inside his trailer or had returned to his trailer when Mr. Cere-zo suggested that he throw down his hammer and fight like a man, and perhaps called the police, it is unlikely that Mr. Cerezo would have died. On the other hand, Mr. Cerezo refused to leave Mr. Jenkins’ property and was loudly threatening Mr. Jenkins and his family. Mr. Jenkins’ teenage daughter was nearby, and numerous people were apparently watching the altercation but offered no assistance.

Mr. Jenkins was not required to cower in his trailer while Mr. Cerezo threatened him and his family and tried to enter the trailer of Mr. Jenkins’ wife and children. Mr. Jenkins was within his right to exit his trailer, stand on the common driveway of the neighboring trailers, and demand that Mr. Cerezo leave. Indeed, defusing such a situation without calling the police may have seemed wise in light of Mr. Cerezo’s threats to return with gang members and burn down Mr. Jenkins’ trailer or otherwise kill him and his family.

Thus, the issue of self-defense in this case did not arise at the beginning of the verbal confrontation because at that point Mr. Jenkins was not faced with the use of force. This was implicitly acknowledged by the prosecutor, whose questions of retreat focused on the brief moment in time after Mr. Cerezo landed the first punch and drew back. There was no dispute that at this point Mr. Jenkins reasonably believed he was at risk of great bodily harm. Mr. Cerezo had landed a left-handed punch to Mr. Jenkins’ face, causing a gash below his eye. Mr. Jenkins “wobbled” from the impact. Nevertheless, Mr. Cere-zo pulled back, continued to threaten to kill Mr. Jenkins, and prepared to charge Mr. Jenkins a second time. Even if the jury rejected Mr. Jenkins’ testimony that Mr. Cerezo threatened to shoot him with a firearm, the State’s witnesses all confirmed that Mr. Cerezo threatened to kill Mr. Jenkins and that he attacked Mr. Jenkins, cutting his face with the first punch.

Further, it was only upon the occurrence of this attack that any “duty to retreat” arose. The State failed to present evidence, however, that Mr. Jenkins could have reasonably retreated from this fight once it began. The State’s witnesses testified that during this brief moment in time, there was no reasonable opportunity to retreat. Rather, the eyewitnesses saw Mr. Jenkins “wobbled” and his knees “buckled,” and testified that Mr. Jenkins had no time to retreat before Mr. Cerezo charged at him a second time. It was only at this point — faced with a serious aggressor and no avenue of retreat — that Mr. Jenkins pulled out his knife. Even then, there was no evidence that Mr. Jenkins did anything other than “show” Mr. Cerezo the knife until he was faced with a second attack by Mr. Cerezo.

We have found seven Florida cases in which Florida courts have reversed convictions based upon the State’s failure to rebut a prima facie case of self-defense. See Thompson v. State, 552 So.2d 264 (Fla. 2d DCA 1989); Hernandez Ramos v. State, 496 So.2d 837 (Fla. 2d DCA 1986); Rodriguez v. State, 550 So.2d 81 (Fla. 3d DCA 1989); Brown v. State, 454 So.2d 596 (Fla. 5th DCA 1984); Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980); Bacom v. State, 317 So.2d 148 (Fla. 1st DCA 1975); see also Fowler v. State, 921 So.2d 708 (Fla. 2d DCA 2006).

In Thompson, 552 So.2d 264, this court reversed a conviction for aggravated battery when the defendant, who had a gun in his pocket, tried to stop a fight and was attacked by a participant who might have been armed with a nunchaku. The defendant had backed up and brandished a gun at the aggressor, but the aggressor continued to approach until the defendant shot him. In Hernandez Ramos, 496 So.2d 837, we reversed a conviction for manslaughter when the defendant testified he was attacked at a bar and tried to leave, but friends of the attacker prevented him from doing so. The defendant testified he shot the victim only after the victim pulled a knife. In that case, no other witnesses saw the altercation or could specifically contradict the defendant’s testimony that the victim drew a knife.

Of course, self-defense cases are intensely fact-specific, and each of the seven cases cited above contains individual facts or circumstances that might distinguish it from this case in some particular detail. However, these cases all involve clear aggression by the victim, evidence that the defendant could not retreat, and evidence that the defendant took some effort to ward off the attack or end it without violence. Here, the State’s case-in-chief presented a similar scenario with respect to Mr. Jenkins. The State’s witnesses uniformly identified the victim as the aggressor who invited the fight and threw the first punch. The witnesses stated that Mr. Jenkins never moved toward the victim and was instead rushed by the victim and did not have time to retreat.

In contrast, cases refusing to acquit defendants based upon claims of self-defense are materially distinguishable from the scenario presented by the State. In some, the defendant seeks out a fight with someone he knows and may have animosity toward. See, e.g., Hunter v. State, 687 So.2d 277 (Fla. 5th DCA 1997) (defendant’s brother threatened to kill him during argument; defendant drove away and returned with a rifle); Soberon v. State, 545 So.2d 490 (Fla. 3d DCA 1989) (defendant obtained a gun after altercations with his girlfriend’s ex-husband, with which he confronted the ex-husband when the unarmed ex-husband twisted the girlfriend’s arm).

In others, the State presented evidence that the defendant had a specific opportunity for escape but instead chose to continue the altercation. See, e.g., Thomas v. State, 918 So.2d 327 (Fla. 1st DCA 2005) (defendant was punched and knocked unconscious; he got back to his feet, retrieved a gun from his friend’s car, and returned to shoot the two unarmed men who attacked him); Baker v. State, 506 So.2d 1056 (Fla. 2d DCA 1987) (defendant was approached by three men and attacked while standing next to his car; disputed evidence suggested defendant opened his knife and held it hidden behind him as the three men approached and that nothing prevented the defendant from getting in his car and driving away).

In still others, the fatal blow is made after the danger from an attack has passed. See, e.g., State v. Tai Van Le, 553 So.2d 258 (Fla. 2d DCA 1989) (victim initially confronted defendant with a hammer and broke his windshield; defendant escaped and returned with a gun, which he used when victim threatened and attacked him again); Pressley v. State, 395 So.2d 1175 (Fla. 3d DCA 1981) (defendant sought out altercation and brought gun, then got into a car and drove away exchanging gunfire).

Mr. Jenkins did not know Mr. Cerezo until Mr. Cerezo began pounding on the adjoining trailer. The evidence was undisputed that Mr. Jenkins repeatedly asked Mr. Cerezo to leave. Although Mr. Jenkins came out of the trailer holding a hammer and with a sheathed knife on his belt, the State’s witnesses confirmed that these items were customary tools of Mr. Jenkins’ trade, not weapons procured specifically to fight Mr. Cerezo. The State argued that Mr. Jenkins’ throwing away his hammer in response to Mr. Cerezo’s challenge was an act of aggression, but the witnesses agreed that Mr. Jenkins tossed the hammer to the side and did not move toward Mr. Cerezo. Mr. Jenkins testified that as he threw the hammer, he told Mr. Cerezo he did not want to fight. This gesture is equally indicative of a reasonable person assuming that he might defuse the tension by discarding the hammer. Mr. Cerezo landed a solid punch that “wobbled” Mr. Jenkins, backed up, and threatened to kill Mr. Jenkins again. Although Mr. Jenkins unsheathed and held his knife where Mr. Cerezo could see it, Mr. Cerezo drew his arm back and came at Mr. Jenkins for a second time. The State’s witness who saw the single stab wound that killed Mr. Cerezo testified that Mr. Jenkins did not swing the knife out at Mr. Cerezo, and the resulting wound was consistent with this testimony.

Mr. Jenkins presented evidence sufficient to establish a prima facie issue of self-defense. It was the State’s burden to overcome this defense and prove beyond a reasonable doubt that Mr. Jenkins was not acting in lawful self-defense. Here, the State was unable to present the competent, substantial evidence necessary to overcome Mr. Jenkins’ defense and in fact presented evidence consistent with the defense. The trial court should have granted Mr. Jenkins’ motion for judgment of acquittal.

Reversed and remanded for discharge.

WHATLEY and KELLY, JJ., concur.

      . Once Mr. Jenkins exited his trailer, it is unclear whether his daughter remained inside the trailer with him or whether she too was outside and witnessed the altercation.

      . A toxicology report performed on Mr. Cere-zo after his death revealed that he was mildly intoxicated. There was, however, no other evidence that might have explained why Mr. Cerezo was acting the way the witnesses described.

      . The medical examiner testified that the victim was 5 feet 9 inches tall and weighed 157 pounds.

      . Although described in the testimony as a common "driveway,” the aerial photographs of this area reveal a dirt road through and around the trailers in this area, not a road that terminates at one end.

      . We note that this framework of statutory and case law was materially altered by amendments to chapter 776 that became effective October 1, 2005 — after the events described here. See ch. 2005-27, §§ 1, 2, Laws of Fla. Section 766.013(3), Florida Statutes (2005), now provides: "A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” Section 766.013(l)(a) also now includes a presumption that a defendant had a reasonable fear of great bodily harm sufficient to justify the use of deadly force if "[t]he person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle.”

      . We are inclined to believe that the State’s presentation on the location of the fight, whether on or off the Jenkins’ property, was probably a distraction that may have confused the jury. The jury may have been left with the impression that it was required to convict Mr. Jenkins if the fight occurred in a common roadway and not on the premises of his modest, mobile “castle.” Even in the roadway, however, the jury was instructed that self-defense applied if Mr. Jenkins "reasonably believe[d] that such force [was] necessary to prevent imminent death or great bodily harm to himself or another.” See Fla. Std. Jury Instr. (Crim.) 3.6(f). Even if the "castle” doctrine did not specifically apply, the proximity of this altercation to Mr. Jenkins’ residence was relevant and telling. The "flight” potentially available to Mr. Jenkins was to retreat into the home despite the "wild man” threatening him outside of it, or to run away from his home, arguably leaving his teenage daughter behind. Whether the "castle doctrine” applied or not, the State failed to present evidence that Mr. Jenkins had a reasonable avenue of retreat; in fact its evidence suggested otherwise.


text:
    HUBBARD CONSTRUCTION COMPANY, Appellant, v. Claudette SCHOBERG, as Personal Representative of the Estate of Raymond Schoberg, Claudette Schoberg, Sherry-Ann Schoberg, Shellon Andre Schoberg, Sheldon Ackeel Schoberg, Pollyanna Glassiana Schoberg, Shermond Schoberg and Sheldeen Schoberg, Appellees.
    No. 4D06-1226.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Rehearing Denied Dec. 20, 2006.
    Geoffrey D. Ringer and Joseph S. Justice of Ringer, Henry, Buckley & Seacord, P.A., Orlando and Betsy E. Gallagher and Michael C. Clarke of Kubicki Draper, Tampa, for appellant.
    Carlos A. Bodden of Ellis & Ged, P.A., Boca Raton, Patrick W. Lawlor, Fort Lauderdale, and Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, for appellees.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for Amicus Curiae The Academy of Florida Trial Lawyers.
    J. David Gallagher and Michael P. Keenan of Gallagher, Daniel & Keenan, P.A., Tampa, for Amicus Curiae The Florida Defense Lawyers Association.
   PER CURIAM.

Affirmed. Jones v. Martin Electronics, Inc., 932 So.2d 1100 (Fla.2006).

POLEN, KLEIN and MAY, JJ., concur.


text:
    George TOOLE, Appellant, v. A.B., a minor, by and through his father, C.D., and C.D., individually, Special Olympics, Inc., and Special Olympics, Florida, Inc., Appellees.
    No. 1D06-2948.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2006.
    George Toole, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

DISMISSED. See Allen v. Live Oak Ford Mercury, 647 So.2d 1060 (Fla. 1st DCA 1994).

BARFIELD, ALLEN and KAHN, JJ., concur.


text:
    RAMS PHARMACY, INC. d/b/a Moreno Pharmacy, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D05-4893.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Katherine E. Giddings, William M. Fur-low, and Todd D. Engelhardt, of Akerman Senterfitt, Tallahassee, for Appellant.
    Garnett W. Chisenhall, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Colonnade Med. Ctr., Inc. v. State, Agency for Health Care Admin., 847 So.2d 540 (Fla. 4th DCA 2003).

WOLF, PADOVANO, and THOMAS, JJ., concur.


text:
    Fabricio GOMEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3929.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2006.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Paul, 934 So.2d 1167 (Fla.2006).

BROWNING, C.J., KAHN, and DAVIS, JJ., concur.


text:
    Todd Carlton SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4469.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2006.
    Todd Carlton Smith, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(A).

ALLEN, BENTON, and HAWKES, JJ., concur.


author: FULMER, Chief Judge.

text:
    James Dion McCOY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-259.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2006.
    Rehearing Denied Dec. 7, 2006.
    James Marion Moorman, Public Defender, and Sonya M. Rudenstine, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Chief Judge.

James Dion McCoy appeals his convictions and sentences for attempted first-degree murder with a weapon, attempted felony murder in the first degree with a weapon, armed false imprisonment with a weapon, and carjacking with a deadly weapon. He raises six issues on appeal. We reject all but two. We reverse the conviction for attempted felony murder and remand for the trial court to vacate the conviction. On the remaining counts, we affirm the convictions but reverse the sentences imposed and remand for resen-tencing.

McCoy argues and the State concedes that the trial court erred in not dismissing the attempted felony murder charge where that charge is based on the same facts underlying the attempted first-degree murder charge. To allow the convictions for both charges to stand would violate double jeopardy. See Gordon v. State, 780 So.2d 17, 25 (Fla.2001); McGlocklin v. State, 907 So.2d 1288, 1291 (Fla. 3d DCA 2005); Jackson v. State, 868 So.2d 1290 (Fla. 4th DCA 2004); Deangelo v. State, 863 So.2d 374, 375 (Fla. 1st DCA 2003). On remand, therefore, the trial court must vacate the attempted felony murder conviction and ensure that this charge is not reflected on the new sentencing documents.

McCoy argues and again the State concedes that the trial court erred in finding McCoy to be a habitual violent felony offender (HVFO) and enhancing his sentence on that basis. The State presented evidence of McCoy’s prior conviction for aggravated assault. However, only aggravated assault with a deadly weapon is an enumerated predicate felony for the HVFO statute. § 775.084(l)(b)(l)(g), Fla. Stat. (2002). Because aggravated assault can be committed in two ways, either by committing an assault with a deadly weapon or with an intent to commit a felony, § 784.021(1), Fla. Stat. (2002), and the State did not establish that McCoy’s prior conviction was committed with a deadly weapon, there was insufficient evidence for the trial court to find that McCoy qualified for the HVFO designation. We, therefore, reverse the HVFO sentences imposed for all remaining counts and remand for re-sentencing pursuant to the Criminal Punishment Code.

McCoy has also raised an issue regarding the scoring of the primary offense. Although the argument was preserved, it was not addressed by the trial court and the State has not responded to the argument in its answer brief. Nevertheless, we reject the argument because it appears that the primary offense was properly scored. See § 775.087(1), Fla. Stat. (2002).

Affirmed in part, reversed in part, and remanded with directions.

WHATLEY and WALLACE, JJ., Concur.


text:
    Joshua TRULL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2232.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2006.
    Rehearing Denied Nov. 29, 2006.
    Joshua Trull, Sanderson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Thomas v. State, 914 So.2d 27 (Fla. 4th DCA 2005).

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


text:
    Luis Manuel ARGUELLO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3337.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.
    Rehearing Denied Nov. 30, 2006.
    Luis M. Arguello, Jasper, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504, 508 (Fla.2003) (holding that a defendant is entitled to credit only after a warrant is actually served, and is not entitled to credit merely due to the placement of a detainer).

GRIFFIN, ORFINGER and MONACO, JJ., concur.


text:
    David TSCHIDA, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3291.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2006.
    Rehearing Denied Nov. 30, 2006.
   PER CURIAM.

Affirmed. See Burrows v. State, 890 So.2d 286 (Fla. 2d DCA 2004), review denied, 914 So.2d 952 (Fla.2005); Caraballo v. State, 805 So.2d 882 (Fla. 2d DCA 2001). Contrary to the holding of this court in Burrows, the First District in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), on collateral review applied the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), retroactively to a sentence that became final before the issuance of the Blakely opinion. As this court did in Hughes v. State, 933 So.2d 1285 (Fla. 2d DCA 2006), we certify direct conflict with Isaac.

Affirmed; conflict certified.

WHATLEY, CASANUEVA, and SILBERMAN, JJ., concur.


text:
    Larry WOODWARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3836.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2006.
    Larry Woodward, pro se, Petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as moot. See Munn v. Florida Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    Richard L. JOHNS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5069.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2006.
    Richard L. Johns, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


text:
    William T. HOLIDAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4775.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2006.
    William T. Holiday, pro se, Petitioner.

      Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits-

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


author: LaROSE, Judge.

text:
    Amer Khan AGARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3813.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2006.
    Rehearing Denied Dec. 12, 2006.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Amer Khan Agard challenges the imposition of a $12 processing fee imposed as a condition of probation. Mr. Agard preserved this issue by filing a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). We affirm in part and reverse in part.

In his rule 3.800(b)(2) motion, Mr. Agard asked the trial court to strike condition 59 of his probation order because the probation processing fee was neither orally pronounced by the trial court nor supported by statutory authority. Apparently, the trial court orally granted Mr. Agard’s motion and directed the Department of Corrections to prepare a corrected order; the trial court never entered a written order.

We reverse the imposition of the processing fee. See Williams v. State, 916 So.2d 999, 1000 (Fla. 2d DCA 2005) (reversing imposition of $1 cost because not orally pronounced and imposed without any written citation to authorizing statute); Jackson v. State, 685 So.2d 1386, 1387 (Fla. 5th DCA 1997) (vacating portions of probation order, including that which imposed $50 probation processing fee, and directing that the fee be stricken for lack of statutory authorization); see also Powell v. State, 681 So.2d 722, 722 (Fla. 2d DCA 1996) (holding that trial court has no authority to impose such a fee).

Judgments and sentences affirmed; imposition of probation processing fee reversed and cause remanded with directions to the trial court to strike the fee and to enter a corrected probation order. See Rosales v. State, 818 So.2d 684, 685 (Fla. 2d DCA 2002).

SILBERMAN and WALLACE, JJ., Concur.


text:
    Curtis PARKER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-0359.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2006.
    Curtis Parker, pro se, Petitioner.
    Rosa H. Carson, General Counsel, and Erin Lydia McLaughlin, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Burdick v. State, 584 So.2d 1035 (Fla. 1st DCA 1991), approved in part and quashed in part on other grounds, 594 So.2d 267 (Fla.1992).

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


author: ORFINGER, J.

text:
    Christina M. CONVILLE, n/k/a Christina Murphy, Appellant, v. Michael W. CONVILLE, Appellee.
    No. 5D06-2080.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.

      Steven J. Guardiano, Daytona Beach, for Appellant.
    Timothy M. Goan, of Timothy M. Goan, P.A., Palm Coast, for Appellee.
   ORFINGER, J.

The mother, Christina M. Conville, appeals the trial court’s post-judgment order, changing primary residential responsibility of the parties’ three children to the father, Michael W. Conville. The mother alleges that the trial court erred when it awarded permanent custody to the father at a hearing that was held to consider only the father’s request for an emergency modification order. We agree and reverse.

When the mother and father’s marriage was dissolved, the final judgment awarded primary residential responsibility of the parties’ minor children to the mother. Sometime thereafter, the father filed a petition for modification of primary residential responsibility of the children, alleging a substantial change in circumstances. Specifically, the father alleged that the mother’s paramour was an abusive drug user, and that the mother had removed the children from the State of Florida, disrupting both the children’s education and the father’s visitation.

At the beginning of what was scheduled to be a thirty-minute hearing, the trial court advised the parties that he understood that “we are dealing primarily with an emergency motion to produce the children for visitation.” The father’s counsel responded “and to change custody or to change primary parent’s [sic] responsibility ... and as an alternative, to deal with visitation.” Notwithstanding the apparent temporary, but emergent nature of the relief sought, the trial court entered an order permanently changing primary residential responsibility of the children to the father. The mother contends that given the brevity of the hearing and the agreement of the parties that the father was seeking only emergency relief, it was error to make a permanent change of custody. We agree.

In order to conduct a proper inquiry into the substantial change of circumstances and the best interests of the children, “both parties must generally be given the opportunity for a full hearing where the parties and their witnesses are given an opportunity to testify.” Bini v. Bini 828 So.2d 470, 472-73 (Fla. 5th DCA 2002) (citing Vazquez v. Vazquez, 626 So.2d 318, 319 (Fla. 5th DCA 1993)). Indeed, the failure to afford the parties a full hearing on such issues is a denial of due process.

The trial judge’s determination to temporarily change custody of the children is supported by substantial competent evidence. However, as the mother argues, we conclude that another hearing must be conducted to allow the court to conduct a full inquiry into the alleged change of circumstances and the best interests of the children before making a final ruling on the father’s motion to permanently change custody. It is clear that the trial court and the parties began the hearing under the belief that it was for the purpose of temporary relief only.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GRIFFIN and THOMPSON, JJ., concur.


author: PLEUS, C.J.

text:
    Sean M. DUFF, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-150.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.
    Adam H. Sudbury, of Calzada, Hamner & Wilson, P.L., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, C.J.

Sean Duff appeals his conviction for driving while license revoked as a habitual traffic offender in violation of section 322.34(5), Florida Statutes (2005). He argues that this conviction violated his right against double jeopardy because he had already pled to and served a 30 day sentence for driving while license suspended, cancelled or revoked in violation of section 322.34(2). Both charges arose from the same driving incident. Although Duff acknowledges that these crimes contain different elements, he argues that successive prosecution and punishment for the greater offense violates the “degree variants” principle of Florida’s double jeopardy jurisprudence. We agree and reverse.

On August 9, 2005, Duff was stopped for speeding. A check of Duffs driver’s license status revealed that it had been revoked as a habitual traffic offender and had also been suspended numerous times. The arresting officer issued four traffic citations for speeding, passing in a no passing zone, having an expired driver’s license and driving while license revoked as a habitual traffic offender.

We note that both Duffs initial brief and the officer’s arrest affidavit refer to the last citation as one for driving while license suspended, but the actual citation refers to driving while license revoked as a habitual traffic offender in violation of section 322.34(5). Thus, Duff was never charged with driving while license suspended. A case based on the traffic citation for driving while license revoked as a habitual traffic offender was opened in county court, even though it was a felony charge. At the same time, a second case based on the arrest affidavit was opened in circuit court.

On August 30, 2005, the State filed an information for driving while license revoked as a habitual traffic offender in the circuit court case. On September 23, 2005, Duff appeared at a pretrial conference in the county court case. At that hearing, Duff asked if the State was offering anything to resolve the case. The State offered 30 days in county jail and stated that “it would just be a plea to the DWLS [driving while license suspended].” Duff clarified, “So I would be pleading to driving while my license is suspended and would be adjudicated guilty for that charge?” The judge responded, ‘Tes, sir.” The judge further stated that the State “probably could have filed this case as a felony, but chose not to do so.” Duff accepted the offer and the judge adjudicated him guilty of driving while license suspended or revoked. She then sentenced Duff to 364 days in jail with 334 suspended on the condition that he report to jail on October 3, 2005.

On September 26, 2005, Duff appeared at arraignment in circuit court and the court appointed a public defender to represent him. Duff filed a motion to dismiss based on double jeopardy. After a hearing, the court denied Duffs motion. Duff then filed a petition for writ of prohibition, which this Court denied without prejudice to raise the double jeopardy issue on direct appeal. See Duff v. State, 5D06-28 (Fla. 5th DCA 2006). Duff later pled no contest, reserving the right to appeal the denial of his motion to dismiss. The court adjudicated Duff guilty of driving while license revoked as a habitual offender and sentenced him to six months probation.

On timely appeal, Duff argues that the trial court erred in denying his motion to dismiss because the State’s subsequent prosecution for driving while license revoked as a habitual traffic offender violated the “degree variants” principle of Florida’s double jeopardy jurisprudence.

Double Jeopardy Analysis

Both the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Florida Constitution protect persons from being put in jeopardy twice for the same offense. Our supreme court recently reiterated that it looks to the Blockburger test, as codified in section 775.021(4), Florida Statutes, to determine whether double jeopardy has been violated. State v. Paul, 984 So.2d 1167 (Fla.2006).

Section 775.021(4), Florida Statutes (2005), states:

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

(Emphasis added).

The analysis involves two steps. Gordon v. State, 780 So.2d 17, 20 (Fla.2001). First, the court must determine whether the offenses each contain an element of proof that the other does not, as stated in section 775.021(4)(a). If they do not, double jeopardy bars multiple prosecutions or convictions. If they each contain separate elements, then the court must determine if one of the three exceptions in section 775.021(4)(b) applies. The first exception is merely a restatement of the same elements test in subsection (4)(a). The second exception is referred to as the “degree variants” test. The third exception deals with necessary lesser included offenses.

a. The Blockburger or “Same Elements” Test

Blockburger and section 775.021(4)(a) require courts to first examine whether “each offense requires proof of an element that the other does not....” This step is referred to as the “same elements” test. Paul, 934 So.2d at 1173.

In State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 1999), the Fourth District applied the same elements test to the same two crimes involved in the instant case and concluded that the offenses were separate. Specifically, driving while license suspended requires proof the defendant knew his license was suspended. Driving while license revoked as a habitual traffic offender requires proof of revocation of the defendant’s driver’s license. Id. at 469. Consequently, double jeopardy did not bar a subsequent prosecution for driving while license revoked as a habitual traffic offender after the defendant had been acquitted of driving while license suspended. Id.

Duff concedes that under the same elements test, his offenses each contain an element different from the other. However, he argues that this Court should not follow Cooke for two reasons. First, Duff claims that Cooke’s reasoning is erroneous because the term “offense” should be construed to include the “underlying factual transaction or occurrence upon which the State relies to proceed in the first criminal prosecution.” Presumably, Duff is assuming that for both crimes, the State would adduce proof of the same facts, ie. that on August 9, 2005, Duff was driving with a suspended or revoked license. This argument runs afoul of the “same elements” test, as expressed in the plain language of section 775.021(4)(a). That section states in pertinent part that “offenses are separate if each offense requires proof of an element that the other does not, without regard, to the accusatory pleading or the proof adduced at trial.” (Emphasis added). In other words, this test focuses on comparing the statutory elements, not the underlying pleadings or proof.

Duff also argues that Cooke does not control this case because the court in Cooke did not consider the “degree variants” exception in section 775.021(4)(b)(2).

b. The “Degree Variants” Exception

Section 775.02(4)(b)(2) provides an exception to the Legislature’s intent to “convict and sentence for each criminal offense committed in the course of one criminal episode or transaction” for offenses which are “degrees of the same offense as provided by statute.” Despite this statutory language, we have noted that the application of this exception “has become more complicated as it has been fleshed out.” Austin v. State, 852 So.2d 898 (Fla. 5th DCA 2008). In particular, the supreme court has employed various phrases over time to “flesh out” this exception.

For example, in Sirmons v. State, 634 So.2d 153 (Fla.1994), the supreme court held that convictions for grand theft auto and robbery with a weapon violated double jeopardy because they were “merely degree variants of the core offense of theft” or, stated differently, “both offenses are aggravated forms of the same underlying offense distinguished only by degree factors.” Id. at 154. However, in Gordon v. State, 780 So.2d 17 (Fla.2001), the supreme court noted that

Extended to its logical extreme, a broad reading of Sirmons and the second statutory exception would render section 775.021 a nullity. Indeed, the plethora of criminal offenses is undoubtedly derived from a limited number of “core” crimes. In no uncertain terms, the Legislature specifically expressed its intent that criminal defendants should be convicted and sentenced for every crime committed during the course of one criminal episode. See § 775.021(4)(b). The courts’ exceptions for homicides, which are discussed below, and theft, where the nature of the crime is often defined by degree of the violation, are consistent with the limited statutory exception. However, extension of this exception to multiple convictions for attempted first-degree murder, aggravated battery, and felony causing bodily injury would contravene the plain meaning of section 775.021.

Id. at 23. Consequently, the court looked to whether the crimes were intended to punish the same “primary evil”. Id. Both the supreme court and this Court have continued to follow the “primary evil” analysis in applying the “degree variants” exception in section 775.021(4)(b)(2). See Paul, 934 So.2d at 1175; State v. Florida, 894 So.2d 941 (Fla.2005); Lopez-Vazquez v. State, 931 So.2d 231 (Fla. 5th DCA 2006).

Duff argues that his convictions violate the degree variants exception because both offenses “punish the same core misconduct: driving a motor vehicle without a valid driver’s license.” He notes that this Court in Roedel v. State, 773 So.2d 1280 (Fla. 5th DCA 2000), held that convictions for driving while license revoked as a habitual traffic offender and driving without a valid driver’s license violated double jeopardy.

Our analysis in Roedel is instructive. There, this Court stated that driving while license revoked as a habitual traffic offender and driving without a valid driver’s license are degree variants of the same core offense—unlawfully driving without a license. Id. at 1281. However, it noted conflict on this point with Lanier v. State, 226 So.2d 37 (Fla. 1st DCA 1969).

Lanier held the offenses of driving without a valid driver’s license and driving while license suspended constituted “separate and distinct evils.” Lanier, 226 So.2d at 39. Specifically, the First District concluded that driving without a valid driver’s license violated “an integral part of the state’s highway safety program calculated to insure that the operators of such dangerous instrumentalities be persons fully qualified to operate them in a safe and competent manner.” On the other hand, a person driving while license suspended “because of his own misconduct is not necessarily an unqualified operator but most certainly is acting in contempt and defiance of the law.” Id.

This court in Roedel disagreed with the reasoning in Lanier, stating:

However, a person who violates either or both of the laws can be viewed as an unqualified operator of a motor vehicle driving without a valid license and posing a threat to public safety. Both statutes address the dual concerns of promoting public safety and punishing those who ignore the law and drive without a valid license.

Roedel, 773 So.2d at 1282. We further found that driving without a valid driver’s license was a necessary lesser included offense of driving while license revoked as a habitual traffic offender. Id. In effect, we held that dual convictions for driving without a valid driver’s license and driving while license revoked as a habitual traffic offender, arising out of the same incident, violate double jeopardy because they are degree variants (same primary evil), contrary to section 775.021(4)(b)(2), and because one is a necessary lesser included offense of the other, contrary to section 775.021(4)(b)(2).

The State contends that Roedel is distinguishable from the instant case because the less serious offense in the instant case is not a necessary lesser included offense, as was the case in Roedel. There are two problems with this argument. First, not only is driving while license suspended not a necessary lesser included offense of driving while license revoked as a habitual offender, these two crimes are mutually exclusive. The plain language of section 322.34(2) (driving while license suspended) expressly excludes habitual traffic offenders. Specifically, it prescribes penalties for those who drive while license “canceled, suspended, or revoked as provided by law, except persons defined in s. 322.26A....” (Emphasis added). Section 322.264 is the habitual traffic offender statute. Instead, driving while license revoked as a habitual traffic offender is proscribed in section 322.34(5). Because these crimes are mutually exclusive, the Fourth District has held, without using the phrase “double jeopardy,” that dual convictions cannot stand. See Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002).

The second problem with the State’s attempt to distinguish Roedel is that it ignores the degree variants portion of Roedel’s analysis. Although the crimes in Roedel were slightly different than those in the instant case, its analysis applies to the instant crimes with equal force. Just as this Court found that driving without a valid driver’s license and driving while license revoked as a habitual traffic offender address the same evils, the same can be said for driving while license suspended and driving while license revoked as a habitual traffic offender. Both of the instant offenses address the evil of defiance of the law. Consequently, Duffs convictions violate double jeopardy because the offenses are degree variants of the same primary evil. Roedel.

The State argues that these offenses “address different types of drivers and are not merely degree variants of one another.” Specifically, the State contends that section 322.34(2) is designed to punish those who knowingly drive while their license is suspended, whether it be for failure to maintain insurance, becoming delinquent in child support or a variety of other reasons for which a license may be suspended. On the other hand, section 322.34(5) punishes those who drive while license revoked as a habitual traffic offender, regardless of knowledge or the number of times it is done. The State notes examples of how someone can become a habitual traffic offender, such as manslaughter with a motor vehicle or failing to stop to render aid.

The State’s distinctions do not change the fact both offenses “address the dual concerns of promoting public safety and punishing those who ignore the law and drive without a valid license.” Roedel. Thus, they represent degree variants of the same offense rather than fundamentally different offenses.

One additional factor supporting this conclusion, although not dispositive by itself, is the fact that the Legislature placed both offenses in the same statute. Some courts have noted this factor in their analysis of the “degree variants” exception. For example, in Lopez-Vazquez, we concluded that offenses of shooting into and from a vehicle were degree variants of the same core offense. In addition, we stated:

We find further support for this conclusion from the fact that the two firearm statutes are included in chapter 790, Florida Statutes, entitled “Weapons and Firearms.” This fact is elevated to a level of significance by a general rule recognized and applied by this court and others, which provides that “degree crimes, or ‘degree variants,’ are oftentimes denoted in the same statutory chapter....” [State v.] Anderson, 695 So.2d [309] at 311 [Fla.1997] (footnote omitted); see also Lovell v. State, 882 So.2d 1107 (Fla. 5th DCA 2004). Although this general rule does not necessarily apply in all cases, we believe it does here and it suggests that both shooting offenses are degree variants of the same core offense.

Lopez-Vazquez, 931 So.2d at 235.

Based on the above analysis, we conclude that Duffs conviction for driving while license revoked as a habitual traffic offender violates the “degree variants” exception in section 775.021(4)(b)(2), Florida Statutes. However, we reject Duffs invitation to adopt a bright line rule under the “degree variants” exception that “if two charged crimes share a lesser included offense, or if one offense is a lesser included offense of the other, dual convictions necessarily violate double jeopardy.” Adopting such a rule would be an unwarranted judicial extension of section 775.021(4)(b)(3), in which the Legislature proscribed dual convictions for “[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” This exception applies only to necessary lesser included offenses. See Gordon, 780 So.2d at 21, n. 3. If the Legislature wants to expand this exception to include Duffs proposed categories, it should do so.

c. The Same Conduct Principle

Duff also argues that his two crimes violate the “same conduct” principle enunciated in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). The Grady court held that double jeopardy bars subsequent prosecution in any case in which the government, “to establish an essential element of an offense charged in the prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id. at 520, 110 S.Ct. 2084. This Court followed the “same conduct” principle of Grady in Williams v. State, 601 So.2d 1253 (Fla. 5th DCA 1992).

However, the Supreme Court later eliminated the “same conduct” principle, overruling Grady in U.S. v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Duff acknowledges Dixon, but argues that the “same conduct” principle is still valid in Florida because Williams has not been overruled.

The State correctly argues that Florida courts now follow Dixon, not Grady. See, e.g., Gaber v. State, 684 So.2d 189, 191-92 (Fla.1996). Duff attempts to distinguish Gaber by arguing that it involved successive convictions, not successive prosecutions, as do Williams and the instant case. Duffs argument falls short for a couple reasons. First, Dixon was a successive prosecution case, so Duff cannot directly distinguish Dixon on that ground. Second, Duff ignores State v. Johnson, 676 So.2d 408, 410 (Fla.1996), a successive prosecution ease which expressly recognized the fact that Dixon overruled Grady’s “same conduct” test. Florida no longer follows the “same conduct” test.

We reverse Duffs subsequent conviction for driving while license revoked as a habitual traffic offender because it violates the “degree variants” principle of double jeopardy, as codified in section 775.021(4)(b)(2), Florida Statutes (2005).

REVERSED.

GRIFFIN and ORFINGER, JJ., concur.

      . Although Duff has presumably completed his probationary sentence, his appeal is not moot. See Hagan v. State, 853 So.2d 595 (Fla. 5th DCA 2003) (holding appeal not moot because defendant challenged legality of conviction, not legality of sentence).

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


text:
    Yolinda Wright ZINNERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1172.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Yolinda Zinnerman was charged with first-degree murder after she shot and killed her roommate, William Snyder. Her lone defense was self-defense and the jury was instructed in that regard in the following manner:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
1. The defendant was attempting to commit or committing murder in the first degree or murder in the second degree or manslaughter....

No objection was made to the instruction.

This particular instruction has been deemed the forcible felony exception and caselaw has held that it should only be given when the defendant is charged with at least two independent criminal acts. Hawk v. State, 902 So.2d 331 (Fla. 5th DCA 2005); Cleveland v. State, 887 So.2d 362 (Fla. 5th DCA 2004). Otherwise, the instruction is circular and negates the defense of self-defense. See Bevan v. State, 908 So.2d 524 (Fla. 2d DCA 2005); Estevez v. State, 901 So.2d 989 (Fla. 4th DCA 2005); Williams v. State, 901 So.2d 899 (Fla. 4th DCA), review denied, 913 So.2d 598 (Fla.2005).

Several cases have recognized that instructing the jury in such a manner constitutes fundamental error and can be considered in the absence of an objection. See Carter v. State, 889 So.2d 937 (Fla. 5th DCA 2004), review denied, 903 So.2d 190 (Fla.2005); Cleveland; Velazquez v. State, 884 So.2d 377 (Fla. 2d DCA), review denied, 890 So.2d 1115 (Fla.2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). We are bound by our decisions in Carter and Cleveland. Accordingly, we reverse Zinnerman’s conviction and sentence and remand for a new trial.

We certify the following question to the Florida Supreme Court as a matter of great public importance:

DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME?

REVERSED and REMANDED; QUESTION CERTIFIED.

THOMPSON and LAWSON, JJ., concur.

SAWAYA, J., dissents without opinion.

      . The State argues that there was no evidence of self-defense, however there was testimony regarding the tension between Zinnerman and Snyder and evidence was introduced that Snyder's DNA was found on the knife that was found near his body. As stated in Brozey v. State, 911 So.2d 867, 868 (Fla. 2d DCA 2005), "[a] criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support this theory.”


text:
    R.W., Mother of A.W., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-1828.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2006.
    Rehearing Denied Dec. 1, 2006.
    Shirley Clark Ayers, Ocala, for Appellant.
    Ralph J. McMurphy, Department of Children and Families, Wildwood, for Ap-pellee.
    Thomas Wade Young, of Statewide Guardian ad Litem Program, Orlando.
   PER CURIAM.

AFFIRMED. See D.D. v. Dep't of Children & Families, 849 So.2d 473 (Fla. 4th DCA 2003) (holding that dependency statute’s 30-day time limitation during which to hold an adjudicatory hearing in a dependency case is not mandatory for protection of parent’s rights, but directory for protection of child; State’s compelling interest to protect well-being of child is paramount to parent’s rights, and other sections of dependency statute allow for continuances and extensions when in best interests of child).

GRIFFIN, PALMER and ORFINGER, JJ., concur.


author: GREEN, J.

text:
    The STATE of Florida, Appellant, v. Nessim Jaime SION, Appellee.
    No. 3D05-2824.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.

      Charles J. Crist, Jr., Attorney General and Olga L. Villa, Assistant Attorney General, for appellant.
    Sands & Moskowitz, P.A., and Leonard A. Sands, Miami, for appellee.
    Before GREEN, RAMIREZ, & WELLS, JJ.
   GREEN, J.

This is an appeal from an order vacating appellee Nessim Jaime Sion’s plea to first degree grand theft on the grounds that a factual basis for the plea was not established other than through stipulation of counsel. We reverse as we conclude that apart from the stipulation of counsel, the record before the court disclosed a factual basis for the plea.

Sion was charged by information with one count of first degree grand theft of currency of $100,000 or more. According to the arrest affidavit in this case, Sion had been a patient of his medical doctor victim. Sion befriended the doctor and offered the doctor an opportunity to purchase stocks in a particular company. The doctor paid Sion $103,000 over a period of six months. At some point, Sion gave the doctor a stock certificate for $25,000 in shares. This stock certificate later proved to be a counterfeit certificate for shares that were never owned by Sion. The arrest affidavit further averred that upon learning of the police investigation into the matter, Sion made partial restitution of $25,000 to the victim and surrendered to the police in the presence of his attorney.

On July 24, 2003, Sion entered a plea of nolo contendere to the information in exchange for a withhold of adjudication, and two years of probation with special conditions. During the plea colloquy, Sion was questioned as to his understanding of the charge against him; his understanding of the terms of the plea agreement and the consequences of violating the conditions of probation; whether he was entering the plea freely and voluntarily and not under the effects of drugs; whether he understood the constitutional rights that he was relinquishing by entering the plea; and whether he was satisfied with the services of his attorney. The trial court also asked Sion whether he understood that by taking his plea, Sion could get deported or be subjected to other negative immigration consequences if he was not a United States citizen. Sion indicated that he so understood.

On July 22, 2005, Sion moved to vacate and set aside his plea pursuant to Rule 3.850, Florida Rules of Criminal Procedure. He claimed that his plea was fundamentally deficient because the court failed to ascertain independently whether there was a factual basis for the plea apart from the stipulation of counsel. The only prejudice alleged was that at the time Sion was out of the country on business and was attempting to renew his visa to reenter the United States, but could not do so because of the plea. The trial court denied this post-conviction motion as legally insufficient.

Sion appealed this order to this court in August 2005. On September 29, 2005, the trial court directed counsel to move this court to relinquish appellate jurisdiction for the trial court to reconsider its order. This court relinquished jurisdiction to the trial court. In a subsequent order, the trial court reversed itself and issued an order granting Sion’s motion to vacate and set aside the plea and judgment. Citing to Koenig v. State, 597 So.2d 256 (Fla.1992), the trial court found that “a stipulation with no factual basis in the record is insufficient.” The State then commenced the instant appeal.

The State argues that although the transcript of the plea colloquy does not reflect a recitation of the facts supporting a factual basis for the plea in the record, there was nevertheless evidence in the record before the trial court (i.e. complaint/arrest affidavit) to establish a factual basis for the plea. Hence, it argues, the trial court’s reliance on Koenig is misplaced, as Koenig involved a death penalty plea where there was absolutely no record evidence of the crimes to which the defendant pled. We agree.

Prior to accepting a plea of guilty or nolo contendere, the trial court must be satisfied both that the plea is voluntarily entered and that there is a factual basis for it. Fla. R.Crim. P. 3.172(a). The main purpose for ascertaining a factual basis for a plea is to prevent a defendant from mistakenly pleading to the wrong offense. See Suarez v. State, 616 So.2d 1067, 1068 (Fla. 3d DCA 1993) (citing Williams v. State, 316 So.2d 267 (Fla.1975)). The Florida Supreme Court has held that a trial court has broad discretion in employing the procedure to be used to gather the factual information necessary to establish the elements of the offense to which the defendant has entered a plea of guilty.

We hold that the court may satisfy itself by statements and admissions made by the defendant, his counsel, and the prosecutor; by factual evidence heard or filed in the cause, i.e. preliminary hearings, motions to suppress, or depositions taken in the cause. Under appropriate circumstances, the presen-tence investigation report may be used to present this factual information to the trial court. These are not the exclusive means for a trial court to reach a determination. The trial court is free to utilize whatever procedure is best for the particular case before it to ensure that the defendant is entering a plea to the proper offense under the facts of the case. But whatever method is employed, the court should indicate for the record the source of the factual information supporting the plea.

Williams, 316 So.2d at 273. When a trial court fails to establish in the record the requisite factual basis for a plea of guilty, the vacation of the guilty plea, however, is not the sole remedy. Id. Indeed, in order to withdraw a guilty plea after sentencing for lack of a factual basis the defendant has the burden of establishing that a manifest injustice or clear prejudice has occurred. Id. at 274. James v. State, 886 So.2d 1032 (Fla. 4th DCA 2004); State v. Fox, 659 So.2d 1324 (Fla. 3d DCA 1995); Blackwood v. State, 648 So.2d 294 (Fla. 3d DCA 1995); Suarez; Monroe v. State, 318 So.2d 571 (Fla. 4th DCA 1975).

In the instant case, we find no merit to Sion’s assertion that there was no factual basis in the record for his plea to the charged offense apart from his stipulation and the stipulation of his counsel. The arrest affidavit was a part of the record before the trial court at the time of Sion’s plea. Although the trial court did not specifically make a reference to this affidavit, the court did acknowledge that it had enough proof in court to send this case to a jury for its determination of Sion’s guilt. The arrest affidavit sufficiently set forth a factual basis for the charged offense of first degree grand theft. See Saint Aime v. State, 723 So.2d at 874, 875 (Fla. 3d DCA 1998). Indeed, according to this affidavit, Sion began to immediately make restitution to the victim upon learning of the criminal investigation into this matter. This, we think, was sufficient to constitute a tacit admission of guilt by Sion to the charged offense.

The record before us affirmatively establishes that Sion knowingly and intelligently entered into this plea agreement and that there was a sufficient factual basis in the record to support the plea. Given this fact, the trial court abused its discretion when it permitted Sion to withdraw his plea and it is wholly unnecessary for us to address Sion’s claim of prejudice or manifest injustice. See Williams (reversal of conviction for lack of factual basis for plea not required unless record discloses that non-compliance with rule resulted in prejudice of harm to defendant) (citing Richardson v. State, 246 So.2d 771, 774 (Fla.1971)); Saint Aime, 723 So.2d at 875 (“As there was a sufficient factual basis for the plea, defendant’s corresponding claim of ineffective assistance of counsel by allowing a plea in the absence of such also fails.”).

Reversed and remanded.

      . These conditions were as follows:
      1) Sion pay restitution in the amount of $83,500 at a rate of $6,960 monthly during the first year of probation;
      2) Sion be allowed to travel outside the country for business purposes;
      3) Sion enter and successfully complete the theft course during the second year of probation;
      4) Sion serve 75 hours of community service at the rate of 10 hours per month; and
      5) Sion pay court costs.

      . The court inquired as follows:
      [Court]: Do you understand that this plea can get you deported if you are not a United States citizen?
      [Defendant]: Yes. I am not a citizen.
      [Court]: You are not a citizen?
      [Defendant]: No.
      [Court]: So do you understand that this plea can get you deported or some other negative immigration consequences?
      [Defendant]: Yes.
      [Court]: Do you understand that?
      [Defendant]: Yes, I do understand.
      During the course of the plea, the trial court stated that it found a factual basis for the plea and both the defense counsel and Sion stipulated as follows:
      [Court]: I find a factual basis for the plea, does the defense so stipulate and waive PSI?
      [Defense Counsel]: For purposes of the plea.
      [Court]: I find proof in court enough for me to give your case to a jury so the jury would have had to decide if you were guilty or if you were not, but I find that you do not want to go to trial, I find that you do want to take this plea. I also find that you are alert, intelligent and you understand the charges against you and the consequences of the plea you have agreed to. I find you have been represented by a veiy good lawyer, Mr. Darwaresh, with whom you say you are satisfied with. I also find that you made the plea agreement freely, voluntarily and without any undo promises of coercion. Did you understand those findings that I just made?
      [Defendant]: Yes, I did. In the legal terms that you used, I think I understand.
      [Court]: Do you agree with what you understood me to say?
      [Defendant]: Yes.

      . Sion had completed his probation at this time.