text:
    Melvin SYKES, Appellant, v. The STATE of Florida, M.L. Flores, Warden, Baker C.I., Appellees.
    No. 1D07-2363.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2008.

      Melvin Sykes, pro se, Appellant.
    Sean T. Garner, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Appellees.
   PER CURIAM.

We disregard the Department of Corrections’ motion for rehearing or certification, which was filed by an attorney who is not of record in this case, because it is a legal nullity. See Bortz v. Bortz, 675 So.2d 622, 624 (Fla. 1st DCA 1996). Accordingly, we deny Melvin Sykes’ motion to strike, as moot. On our own motion, however, we withdraw our previous non-final opinion and substitute the following for the purpose of clarification.

Melvin Sykes, Appellant, seeks review of a dismissal of his petition for writ of habe-as corpus, wherein he complained that the Baker County Correctional Institution had violated section 944.17(5), Florida Statutes, by admitting him on the basis of an incomplete Uniform Commitment to Custody Form. The trial court denied the petition on two grounds: first, because it construed Appellant’s arguments as a collateral attack on his judgment and sentence; and second, because Appellant had failed to exhaust administrative remedies. Based on the first ground for denial, the trial court ruled that the petition was “dismissed without prejudice to Petitioner’s right to seek post-conviction relief in the appropriate court.” We agree with the trial court that the petition was subject to dismissal, but we disagree with the court’s conclusion that it lacked jurisdiction over the matter. Accordingly, we affirm the order and write only to clarify that Appellant may file a new petition in the same court if he can demonstrate that he has exhausted all administrative remedies.

The trial court was correct to conclude that petition for writ of habeas corpus is not the proper vehicle for launching collateral attacks on a judgment and sentence, see Spratling v. State, 851 So.2d 228, 228 (Fla. 1st DCA 2003), and that only the sentencing court has authority to consider such attacks. See Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996). However, the trial court erroneously concluded that Appellant’s arguments under section 944.17(5) constituted a collateral attack. See Carthane v. Crosby, 776 So.2d 964, 965-66 (Fla. 1st DCA 2000) (considering the merits of a petition for writ of habeas corpus that alleged DOC had violated section 944.17(5)). Appellant did not request any change in his judgment or sentence. Instead, he requested that he be transferred back to the custody of the sentencing court, based on his argument that the Baker County Correctional Institution never should have accepted him into custody in the first place. Assuming arguendo that Appellant stated a claim for relief, the Circuit Court for Baker County had jurisdiction to examine the claim. We write to note that the circuit court’s conclusion that it lacked jurisdiction was erroneous, but we express no opinion as to whether the Legislature, in enacting section 944.17(5), intended to create an avenue by which prisoners could challenge the actions of the Department of Corrections, as this issue is not properly before us.

Even though the circuit court had jurisdiction to examine the issues Appellant raised, it did not err in dismissing the petition. Dismissal was proper because the petition failed to show on its face that Appellant had exhausted all administrative remedies. See Moore v. Singletary, 624 So.2d 849, 850 (Fla. 1st DCA 1993). Essentially, the circuit court’s order reached the correct result, but for the wrong reasons. Thus, it will be upheld. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999). The circuit court’s erroneous reasoning regarding jurisdiction appears on the face of the order and therefore, suggests that the dismissal “without prejudice to [Appellant’s] right to seek post-conviction relief in the appropriate court” bars Appellant from filing a petition based on the same claim in the Circuit Court for Baker County. Technically, however, the order does not prevent Appellant from re-filing his petition in the Circuit Court for Baker County after exhausting administrative remedies, as that court would be “the appropriate court.” Consequently, we deem it unnecessary to remand for correction of the order. Subject to the clarifications noted in this opinion, the order is AFFIRMED.

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


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Larry D. MULLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1969.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.

      Larry D. Mullins, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GREEN, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

Larry D. Mullins appeals from an order denying as untimely his petition for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

Mullins’ conviction was rendered on August 6, 2002, and he was sentenced on October 30, 2002. His direct appeal to this Court was per curiam affirmed with citations on August 29, 2003. Mullins v. State, 851 So.2d 907 (Fla. 3d DCA 2003). Mullins sought discretionary review in the Florida Supreme Court, which dismissed the case on November 24, 2004. Mullins v. State, 890 So.2d 1115 (Fla.2004). Mullins then filed his Rule 3.850 petition on July 10, 2006. The trial court denied Mullins’ Rule 3.850 motion on the basis that it was untimely filed, and he now appeals that decision.

The question presented on appeal is whether filing a petition for discretionary review based on an appellate per curiam decision with citations, one or more of which are pending review in the Florida Supreme Court, tolls the time for filing a postconviction motion under Florida Rule of Criminal Procedure 3.850 until the date the Florida Supreme Court either accepts or denies review. Mullins argues that his petition for discretionary review in the Florida Supreme Court tolled the two-year time limits of Rule 3.850 because this Court’s per curiam affirmance was accompanied by citations to cases, one of which was pending review in the Florida Supreme Court. Mullins asserts that when the Florida Supreme Court dismissed his case on November 24, 2004, Mullins had two years from that date to seek postcon-vietion relief, and his July 10, 2006 petition for postconvietion relief was therefore timely. We agree.

Subject to certain exceptions not applicable here, Rule 3.850(b) provides a two-year period for the filing of a motion for postconviction relief “after the judgment and sentence become final in a non-capital case.” A judgment and sentence become final for purposes of the rule “when any such direct review proceedings have concluded and jurisdiction to entertain a motion for post-conviction relief returns to the sentencing court.” Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987); see also Cardali v. State, 794 So.2d 719, 721 (Fla. 3d DCA 2001). Direct review proceedings include seeking discretionary review in the Florida Supreme Court. Cardali, 794 So.2d at 721. The Florida Supreme Court does not, however, have subject matter jurisdiction over a district court opinion that fails to expressly address a question of law, such as opinions issued without opinion or citation. Beaty v. State, 701 So.2d 856 (Fla.1997) (finding that, where a defendant’s plenary appeal had been per curiam affirmed without written opinion or citation, the two-year period for purposes of filing a motion for postconviction relief began to run from the issuance of the district court’s mandate, rather than from the Supreme Court’s denial of discretionary review); Florida Star v. B.J.F., 530 So.2d 286, 288 n. 3 (Fla.1988) (holding that a district court decision rendered without opinion or citation constitutes a decision from the highest state court empowered to hear the cause).

In the case before us, this Court’s per curiam opinion in Mullins’ direct appeal was accompanied by citations to authority, one of which was pending review in the Florida Supreme Court. Under these circumstances, the Florida Supreme Court retained jurisdiction. See Persaud v. State, 838 So.2d 529, 531-32 (Fla.2003) (holding that “the Court does not have jurisdiction to review per curiam decisions of the district courts of appeal that merely affirm with citations to cases not pending review in this Court.”). The Florida Supreme Court ultimately decided not to accept jurisdiction of Mullins’ case and dismissed Mullins’ petition for discretionary review. As the Florida Supreme Court explained in Persaud, it has subject-matter jurisdiction to hear a petition for discretionary review based on an appellate court’s per curiam opinion with citations, where one of those authorities is pending review in that Court. Persaud, 838 So.2d at 531-32; see also, Florida Star, 530 So.2d at 288. Jurisdiction must be regarded as complete until the time the petition for review is denied. Florida Star at 289. “Moreover, the denial of review ... did not operate to deprive this Court of its subject-matter jurisdiction retroactively, but merely constituted the point in time at which jurisdiction, for whatever reason, had ended.” Id. at 289.

Because of the nature of our opinion in Mullins’ direct appeal (a PCA with citation to a case pending supreme court review), the Florida Supreme Court had subject-matter jurisdiction and Mullins could appropriately petition the court to exercise its discretionary jurisdiction. While the Florida Supreme Court’s decision to accept or deny the petition was pending, the two-year period for filing a postconviction relief motion pursuant to Rule 3.850(b) was tolled. See Cardali, 794 So.2d at 721.

We conclude that the two-year period for filing a postconviction motion pursuant to Rule 3.850(b) began to run from November 24, 2004, the date the Florida Supreme Court dismissed Mullins’ petition for discretionary review of this Court’s mandate in Mullins’ direct appeal. Thus, Mullins’ postconviction petition filed on July 10, 2006, was timely. We reverse and remand for consideration of Mullins’ postconviction petition on the merits.

Reversed and remanded.

      . The date Mullins submitted his petition to the correctional institution for mailing. See Haag v. State, 591 So.2d 614, 617 (Fla.1992) (holding that the date of filing is the time at which a pro se prisoner entrusts the document to prison officials for delivery).

      . In that circumstance, the pertinent issue is not whether the court has subject matter jurisdiction, which it does, but whether it chooses to exercise it. Cf. Jollie v. State, 405 So.2d 418 (Fla.1981) (holding that a district court of appeal opinion which cites as controlling authority a decision that is either pending review in or has been reversed by the court constitutes prima facie express conflict and allows the court to exercise its discretionary jurisdiction); Harrison v. Hyster, Co., 502 So.2d 100 (Fla. 2d DCA 1987) (holding that the court should not have chosen to accept jurisdiction to review the per curiam opinion as it was it was decided on the authority of another decision that was never reviewed by the court on the merits).


author: LAGOA, Judge.

text:
    Ilana BEN-DAVID, Appellant, v. The EDUCATION RESOURCES INSTITUTE, INC., a foreign corporation, Appellee.
    No. 3D07-317.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.

      Hal Vogel, for appellant.
    Debra Dawn, Bonita Springs, for appel-lee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   LAGOA, Judge.

The defendant, llana Ben-David (“Ben-David”), appeals from a final judgment entered against her in the amount of $40,493.77. Because the circuit court lacked subject matter jurisdiction, we reverse the final judgment.

The Education Resources Institute, Inc. (“TERI”) filed suit in Miami-Dade County circuit court against Ben-David seeking recovery for unpaid student loans. Specifically, the complaint alleged that Ben-David executed three promissory notes and that she defaulted on each note. Count I alleged a principal balance due of $14,539.83 on a note executed on July 12, 1994; Count II alleged a principal balance due of $9,040.18 on a second note executed on August 11, 1995; and Count III alleged a principal balance due of $6,876.45 on a third note executed on February 21, 1996. After a jury trial, the circuit court entered a final judgment in favor of TERI in the amount of $40,493.77, plus interest. On appeal, Ben-David raised numerous challenges to the final judgment including subject matter jurisdiction. Because we find that the circuit court lacked subject matter jurisdiction, the judgment is void and we need not address the other issues raised by Ben-David. See Strommen v. Strommen, 927 So.2d 176, 179 (Fla. 2d DCA 2006) (“A trial court’s lack of subject matter jurisdiction makes its judgments void.... ”); Fedan Corp. v. Reina, 695 So.2d 1282, 1283 (Fla. 3d DCA 1997) (judgment rendered by court is void if court lacks subject matter jurisdiction).

“Subject matter jurisdiction — the ‘power of the trial court to deal with a class of cases to which a particular case belongs’ — is conferred upon a court by constitution or by statute.” Strommen, 927 So.2d at 179 (quoting Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994)). Pursuant to section 34.01(l)(c), Florida Statutes (2007), jurisdiction properly lies in the county court for all actions at law in which the matter in controversy “does not exceed the sum of $15,000, exclusive of interest, cost, and attorney’s fees.” Claims may not be aggregated to confer jurisdiction in the circuit court unless the claims are related to one another or arise from the same “transaction or" circumstances or occurrence.” Burkhart v. Gowin, 86 Fla. 376, 98 So. 140, 142 (1923); accord State v. Chillingworth, 100 Fla. 489, 129 So. 816, 817-18 (1930); Milhet Caterers, Inc. v. N.W. Meat, Inc., 185 So.2d 196, 197 (Fla. 3d DCA 1966); Canonico v. Devine, 130 So.2d 319, 321 (Fla. 3d DCA 1961). As the Florida Supreme Court explained:

[SJeparate, unrelated, distinct, and wholly independent demands, as promissory notes given for wholly unrelated and separate items of indebtedness, ... where there is nothing in the notes or in the pleadings to show a composite or other relation between , the notes that were given at different times ... such demands, being separate and unrelated and within the jurisdiction of a lower court, may not be joined or aggregated to make up the amount to give jurisdiction to a superior court.

Burkhart, 98 So. at 142; accord Batts v. Dep’t of Educ., 631 So.2d 369 (Fla. 4th DCA 1994) (four separate promissory notes could not be aggregated to meet jurisdictional requirement of circuit court).

In this matter, TERI sought recovery for three separate notes executed on different dates for varying durations and purposes. Two were for different academic years, and one was a Bar Examination Loan. Because each note was separate and wholly distinct from the others, the notes could not be aggregated to meet the $15,000 jurisdictional threshold necessary to confer jurisdiction on the circuit court.

Accordingly, we reverse the circuit court’s entry of final judgment and remand with directions to the circuit court to vacate the final judgment and transfer the case to the county court pursuant to Florida Rule of Civil Procedure 1.060(a). See Batts, 631 So.2d at 370; Canonico, 130 So.2d at 321-22.

Reversed and remanded with directions.


author: CORTIÑAS, Judge.

text:
    Shohrie SHOJAIE, Appellant, v. GABLES COURT PROFESSIONAL CENTER, INC. d/b/a Terrace Inn, Appellee.
    No. 3D06-3128.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.

      Sina Negahbani, Miami; James M. Loren, Plantation, for appellant.
    Petros and Elegant and William L. Pet-ros, Coral Gables, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and CORTIÑAS, JJ.
   CORTIÑAS, Judge.

Appellant, Shohrie Shojaie (“Shojaie”), seeks review of an order granting a new trial on the basis of a jury verdict being contrary to the manifest weight of the evidence.

Shojaie was employed by a hotel (the “Hotel”) for approximately fifteen years prior to the Hotel’s acquisition by appellee, Gables Court Professional Center, Inc. d/b/a Terrace Inn (“GCPC”). After GCPC became the Hotel’s owner, Shojaie was offered what was essentially the same employment position she held under the previous management. Shojaie contends that, after GCPC’s purchase of the Hotel, illicit activities were conducted on the premises with the consent, participation, or indifference of GCPC. Purportedly, the Federal Bureau of Investigation (“FBI”) conducted an investigation of the Hotel and, shortly thereafter, Shojaie’s employment was terminated.

It is Shojaie’s position that her termination was in retaliation to the FBI investigation, for which GCPC blamed her. Shojaie eventually filed a complaint against GCPC alleging a violation of Chapter 448, Florida Statutes (2002), for prohibited retaliatory personnel action, defamation per se, false arrest, and intentional infliction of emotional distress. In response, GCPC filed an answer and affirmative defenses and a counterclaim for replevin. Shojaie later amended her complaint to include a count for abuse of process and sought punitive damages. Prior to the commencement of trial, GCPC dismissed its counterclaim.

The jury returned a verdict in favor of Shojaie on certain counts and awarded her $75,000 in compensatory damages as well as $425,000 in punitive damages. GCPC then filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial or for reduction or elimination of punitive damages (the “Post Trial Motion”). The trial court granted the Post Trial Motion in part, finding that a new trial was warranted because the verdict was “contrary to the manifest, probative force of the evidence.” At the hearing on the Post Trial Motion, the trial court noted that Shojaie had changed her testimony and that it found specific witnesses testifying on behalf of GCPC to be credible.

“It is the responsibility and duty of the appellant to provide the appellate court with a record sufficient to review the matter assigned.... ” Gleim v. Gleim, 176 So.2d 610, 611 (Fla. 3d DCA 1965). Although the order on appeal and the transcript of the hearing on the Post Trial Motion are included in the record, there is no transcript of the trial proceedings. Thus, we are unable to evaluate the evidence and testimony presented at trial to ascertain whether or not the trial court’s findings and reasoning on the Post Trial Motion were well-founded.

When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.

Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979). Accordingly, in light of the inadequate record on appeal, we affirm the trial court’s decision. Id.; see also Gleim, 176 So.2d at 611.

Affirmed.


author: CORTINAS, J.

text:
    Ensi PRUDENT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1969.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   CORTINAS, J.

Appellant, Ensi Prudent (“Prudent”), seeks review of his first degree murder conviction on the basis that omission of the elements of felony murder in the jury instructions given at trial constitutes fundamental error. We find no fundamental error and affirm.

On July 1, 2003, Felix Similien (the “victim”), was shot and killed in a residential neighborhood. At trial, Genita Milhomme testified that she saw Prudent and the victim, whose hands were raised in the air, standing outside of her home. Milhomme witnessed Prudent fire three shots at the victim, after which Prudent and another individual left the area in a Nissan automobile. Vladimir Gilíes testified that he heard a shot fired, looked out of his window, saw Prudent fire two shots at the victim, and subsequently enter a vehicle with another individual. Additionally, Andy Destave, the brother of Vladimir Gilíes, testified that he heard a gunshot and when he looked out the window, he saw Prudent holding the gun. He then witnessed Prudent fire two more shots at the victim.

The State and the defense agreed upon the following jury instruction for first degree murder, which stated, in pertinent part:

There are two ways in which a person may be convicted of first degree murder. One is known as premeditated murder and the other is known as felony murder.

Defense counsel made no objection to the wording of the jury instruction but now contends that giving the instruction with a reference to felony murder, without also providing an instruction specifying the elements of felony murder, constitutes fundamental error. We disagree.

Jury instructions must include all essential and material elements of the crime charged. State v. Delva, 575 So.2d 643, 644 (Fla.1991). Any deficiency in the jury instructions requires that a contemporaneous objection be made at trial. Id. However, if counsel fails to object at trial, an error in the jury instructions may be raised on appeal if the error is fundamental. Id. To be considered fundamental “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)); J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998) (“An error is fundamental when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.”).

Whether a failure to instruct the jury constitutes fundamental error depends upon the factual issues of the case. Johnson v. State, 833 So.2d 252, 254 (Fla. 4th DCA 2002). Fundamental error analysis requires an examination of: (1) each jury instruction in the context of the other jury instructions; (2) the arguments presented by counsel; and (3) the evidence presented during trial. Garzon v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006). However, if the jury instruction fails to instruct on an element of the crime and the record indicates that this element is not in dispute, then there is no fundamental error and the contemporaneous objection rule applies. Delva, 575 So.2d at 644; Johnson, 833 So.2d at 254.

In Dobbert v. State, 456 So.2d 424, 431 (Fla.1984), appellant argued ineffective assistance of counsel for failure to challenge a felony murder jury instruction that omitted the elements of the underlying felony offenses. Id. The Florida Supreme Court found that the State obtained its conviction of first degree murder only on the basis of premeditation. Id. Furthermore, there was “not only sufficient but overwhelming evidence of premeditated murder.” Id. As such, the errors were not fundamental and did not rise to the level of ineffective assistance of counsel.

Prudent contends that omission of the elements of felony murder constitutes fundamental error. He suggests that, because there was testimony that the victim’s hands were raised in the air prior to the shooting, the jury may have concluded that Prudent shot the victim during the commission of a robbery. As a result, the jury may have convicted him on the basis of felony murder. The State contends that the jury found Prudent guilty of Count I of the Indictment, which references only premeditated first degree murder. Furthermore, the State argues that its only theory for prosecuting Prudent was on the basis of first degree premeditated murder and there was sufficient testimony describing how the witnesses saw Prudent stand in front of the victim and shoot him, thereby supporting a conviction based on premeditation.

We agree that the record reflects overwhelming evidence of premeditated murder upon which the jury may have based its conviction. Accordingly, we find that the omission in the jury instruction did not constitute fundamental error and a contemporaneous objection was required in order to preserve this claim of error. Based on our review of the totality of the circumstances, we affirm the conviction of first degree murder.

Affirmed.


author: COPE, J.

text:
    Stewart J. ANDREWS and Leda N. Andrews, Appellants, v. Donald J. BARTON, Appellee.
    No. 3D06-1247.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.

      Diane Tolbert Covan, Key West; Burlington & Rockenbach, P.A., West Palm Beach, for appellants.
    Charles M. Milligan, Key West, for ap-pellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

Stewart J. Andrews and Leda N. Andrews, defendants below, appeal a partial final judgment entered after a jury verdict in favor of plaintiff Donald J. Barton, finding the defendants to be negligent and awarding the plaintiff $31,570. The defendants argue, among other things, that the trial court erred by refusing to admit the tax assessor’s map. We conclude that the point is well taken, and reverse for a new trial.

This is a boundary dispute between two neighbors. In 1996, the defendants bought Lot 32, of Block 54, on Stock Island, which is near Key West. The property is in an industrial area. Although there are survey markers at various locations on Block 54, there were none marking the corners of Lot 32. The defendants built a storage shed within what they believed to be the boundaries of Lot 32. They poured a concrete slab, supplied electricity to the shed, maintained the shed, and used it for storage. The remainder of Lot 32 had construction materials and miscellaneous property stored on it.

In 2000, the plaintiff bought the lots to the east of Lot 32, being Lots 31, 30, and 29, minus a 50-foot strip of land at the east end of Lots 29 and 30. The plaintiffs land is at the east end of Block 54, adjacent to Fourth Avenue.

The plaintiff obtained a survey prepared by Frederick H. Hildebrandt showing that the defendants’ shed was on the plaintiffs property, Lot 31, not on the defendants’ property, Lot 32. The plaintiff demanded that the defendants vacate the shed and remove their personal property. When the defendants removed their personal property and a wood rack inside the shed, the shed collapsed. The defendants removed the remainder of their property, disconnected the electricity, and used a backhoe to knock down the remainder of the shed.

The plaintiff sued the defendants for damages. The plaintiff also requested an injunction to require the defendants to clear the property of trash and material the defendants had placed there.

In the meantime, the defendants had concluded that the Hildebrandt survey was in error and that defendants owned the shed and the property on which it was located. The defendants filed their answer and counterclaim to quiet title and for adverse possession.

At trial, the plaintiff called surveyor Hil-debrandt as an expert witness to testify that the shed was on the plaintiffs property and the defendants called surveyor Robert E. Reece as an expert witness to testify that the shed was on the defendants’ property. The jury returned a verdict for the plaintiff. The trial court entered an appealable final judgment for damages, and the defendants have appealed.

By way of background, this part of Stock Island was platted in 1911. In 1948 a quarry was built for the mining of marl. The quarry owners, the Toppino brothers, built a marl road to transport their product. Subsequently the road was paved, and is now Fourth Avenue.

In 1963 or 1964, there was a meeting of the property owners in the area. It had come to light that the road had been built farther to the west than was shown on the plat. As relates to the property involved here, the paved road and right of way encroached about fifty feet onto Lots 29 and 30, which are at the eastern end of Block 54.

In 1969, the then owners of Lots 29 and 30, Helio and Waldina Gomez, conveyed a strip of land approximately fifty feet wide (“the fifty-foot strip”) to Monroe County for road purposes. In 2000, the plaintiff purchased Lots 29, 30, and 31 from a subsequent owner, minus the fifty-foot strip which the Gomezes conveyed to Monroe County.

When the plaintiffs surveyor testified, he stated that in doing his survey, he relied on the recorded plat and the plaintiffs statement that he had purchased Lots 29, 30, and 31. The plaintiffs survey- or conceded that he did not look at the plaintiffs deed and was unaware of the “less and except” provision which excluded the fifty-foot strip. He contended, however, that this exclusion would not make any difference in the survey. He opined that the shed was located on the plaintiff’s land.

The plaintiffs surveyor testified that he had measured the entirety of Block 54 and found a discrepancy between the actual measurements of the land versus the land as shown on the plat. The surveyor’s solution to this was to say that all of the lots in Block 54 would have to be reduced in width by 2.3 feet. The plaintiffs surveyor took that position even though there had been no proceeding to replat the block and even though the westerly property owners in Block 54 were not parties to this litigation.

The defendants’ surveyor testified that any surveyor must begin with an accurate legal description of the property being surveyed, which should be taken from the deed, not a verbal description. The defendants’ surveyor reviewed the plaintiffs deed which revealed that the plaintiff did not own the fifty-foot strip. The defendants’ surveyor testified that he and his crew had located a number of survey monuments and markers in Block 54, including a dozen corner markers, although no corner markers for Lot 32. The defendants’ surveyor stated that once the exclusion of the fifty-foot strip was taken into account, the measurement of Block 54 revealed that the amount of land in Block 54 was consistent with the plat. The defendants’ surveyor opined that the shed was located on the defendants’ property, Lot 32.

According to the defendants’ surveyor, the plaintiffs surveyor erred by failing to note that the plaintiff does not own the fifty-foot strip, which the Gomezes conveyed to Monroe County. This means that the plaintiffs survey locates the property lines fifty feet to the west of where it should. According to the defendants’ surveyor, the effect of this fifty-foot error is to relocate the plaintiffs land so it is positioned on top of the defendants’ Lot 32.

Turning now to the claim of eviden-tiary error, the defendants testified that they had been billed for, and paid, the taxes on Lot 32. The defendants’ survey- or testified that he had consulted the property appraiser’s map in doing his work and the appraiser’s map was consistent with the plat of Block 54. The defendants sought to introduce the property appraiser’s map into evidence to demonstrate where Lot 32 was located, so far as the property appraiser was concerned. The plaintiff objected, and the appraiser’s map was excluded from evidence.

We conclude that the property appraiser’s map should not have been excluded. It was at least some evidence on the boundary issue and the location of the shed on which taxes had been paid. “Any competent evidence, whether documentary or parol, which is admissible to establish other facts and which will tend to identify the location of a disputed boundary is admissible and may be received in evidence!.]” Calder v. Hillsboro Land Co., 122 So.2d 445, 456 (Fla. 2d DCA 1960) (citation omitted) (internal quotation marks omitted). We therefore reverse for a new trial.

Although not raised as an issue by the parties, we conclude that on remand the plaintiffs survey must be excluded from evidence. There is no proper predicate for its admission, because it is based on a materially incorrect legal description.

The purpose of the surveys in this boundary dispute is to locate accurately the boundary between the plaintiffs and defendants’ property. To do this, the survey must begin with an accurate description of what land the parties own. The defendants’ survey complies with this requirement by stating, on the face of the survey, an accurate legal description of the relevant properties. These were, in substance, Lots 29, 30, 31 (plaintiffs property), and 32 (defendants’ property) of Block 54, Stock Island, less and except the fifty-foot strip.

The plaintiffs survey, by contrast, states that he has prepared a survey of Lots 29, 30, and 31 of Block 54. There is no “less and except” for the fifty-foot strip. That is not an accurate legal description.

To have probative value, the plaintiffs survey must contain an accurate legal description of the property being surveyed. An expert “opinion is admissible only if it can be applied to evidence at trial.” § 90.702, Fla. Stat. (2006). Because the plaintiffs survey is based on a materially inaccurate legal description, it must be excluded from evidence on remand. See Summers v. McOwen, 478 So.2d 397, 398 (Fla. 1st DCA 1985).

Finally, we direct that the trial court proceed first on remand to resolve the issue of the location of the lot boundaries. Given the testimony that a number of survey monuments and markers already exist in Block 54 (although no corner markers for Lot 32), it should be possible by use of measurements from the known monuments and markers to resolve the boundary issue as a matter of law. See generally Akin v. Godwin, 49 So.2d 604, 607 (Fla.1950); Tyson v. Edwards, 433 So.2d 549 (Fla. 5th DCA 1983). In other words, by utilizing a survey or surveys containing the correct legal description, and by locating the existing monuments and markers in Block 54, it appears likely that the claimed boundary conflict will disappear. Any issue regarding the fifty-foot strip and the location of Fourth Avenue affects only the plaintiffs abutting property, not the interior lot owners. See Akin, 49 So.2d at 607.

We reject the defendants’ remaining points on appeal without discussion.

For the stated reasons, we reverse the partial final judgment and remand the cause for further proceedings consistent herewith.

      . The quiet title counterclaim remains pending. The defendants dropped their adverse possession counterclaim.

      . The Gomez deed to Monroe County described the strip as being 49.85 feet wide at the north end, and 58.79 feet wide at the south end.

      .The legal description on the defendants’ revised survey states in full:
      LEGAL DESCRIPTION:
      Lots 29, 30, 31, and 32, in Block 54, Stock Island, Plat Book 1, Page 55, Al-396, Monroe County, Florida records LESS AND EXCEPT:
      A part of Lots 29 and 30, Block 54 of "THE PLAT OF STOCK ISLAND”, as recorded in Plat Book 1, Page 55 of the Public Records of Monroe County, Florida and being more particularly described by metes and bounds as follows:
      Commencing at the Northeast corner of Lot 29, said corner to be known as the POINT OF BEGINNING of the lands hereinafter described, bear West, along the North line of Lot 29, 49.85 feet; thence bear southwesterly 180 feet more or less, to a point on the South line of Lot 30, said point being 58.79 feet West of the Southeast corner of Lot 30, thence bear East along the South line of Lot 30, 58.79 feet to the Southeast corner of Lot 30; thence bear North 34 degrees, 28 minutes and 02 seconds East, along the Easterly Line of Lot 29, 180.92 feet, back to the POINT OF BEGINNING.

      . The legal description on the plaintiff’s survey states in full:
      LEGAL DESCRIPTION:
      Lots 29, 30 & 31, Block 54, "MALONRY PLAT OF STOCK ISLAND”, according to the plat thereof, as recorded in Plat Book 1, at Page 55, of the Public Records of Monroe County, Florida.
      The plaintiff's survey did not undertake to make a complete survey of the boundaries of Lot 32, owned by defendants. However, the plaintiff’s survey shows that Lot 32 lies to the west of the plaintiff’s Lot 31.

      . By failing to exclude the fifty-foot strip from the plaintiff's ownership, the plaintiff’s surveyor assumed that the plaintiff’s property is fifty feet wider than it really is. The plaintiff’s surveyor placed the entirety of the plaintiff's property to the west of Fourth Avenue, but the fifty-foot strip (which the plaintiff does not own) lies under Fourth Avenue, not west of Fourth Avenue. The effect of this error was to place the boundary fifty feet to the west of where it really is, and (since the defendants’ Lot 32 is only fifty feet wide), erroneously placed the plaintiff’s property on top of the defendants' Lot 32.


text:
    Alvin HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2916.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Philip R. Horowitz, for appellant.
    Bill McCollum, Attorney General, for appellee.

      Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

This is an appeal of a summary denial of a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part and remand for an evidentiary hearing consistent with this opinion.

Appellant, Alvin Harris, raised four grounds in his Rule 3.850 motion. We affirm grounds one through three, but reverse and remand for an evidentiary hearing solely on ground four, appellant’s claim for ineffective assistance of counsel for failure to properly advise him of sentencing exposure in the event of revocation of probation.

In 1993, the appellant pled guilty to lewd assault and attempted sexual battery on a minor. He was sentenced to 364 days in jail, two years of community control, and ten years of probation during which time he was to enroll in and complete the Mentally Disordered Sexual Offender (MDSO) Treatment Program. As ordered, the appellant entered into the MDSO program and participated fully for more than nine years. His violation of probation arose when Dr. Sczechowicz, the Director of the MDSO program, concluded that the appellant could not successfully complete the program because his mental impairment (low I.Q.) prevented him from completing the technical requirements of the course, specifically, taking and passing a polygraph test. The trial court, at the revocation of probation hearing, concluded that the appellant’s conduct in that regard was willful and not involuntary and sentenced the appellant to twenty-five years in prison. This Court affirmed that decision on appeal. See Harris v. State, 898 So.2d 1126 (Fla. 3d DCA 2005).

Appellant has now raised four grounds for relief pursuant to Rule 3.850, only one of which has substance. Appellant claims that his trial counsel, prior to the revocation of probation hearing, failed to properly advise him about the plea offers.

It would appear, based on the record, that the plea offers made to the appellant prior to the revocation of probation hearing concerned extensions of the probationary sentence. None of the apparent offers included jail time. Counsel for the appellant at the probationary hearing filed an affidavit wherein she states that she did not anticipate or advise the appellant that the trial court could find that he willfully violated his probation and sentence him to prison. During plea negotiations, the prosecutor never expressed any desire for incarceration. All negotiations concerned merely extending the length of probation in the event the appellant admitted violation. The defense attorney states that the prosecutor’s last offer prior to hearing was for an additional five-year probation period. She states that in discussing the prosecution’s offers with the appellant she never advised him that in the event of revocation he could face prison time. Had she known that the appellant would face prison time in the event of revocation of probation, she states she would have advised him to accept the plea offer, which he would have done.

The failure of trial counsel to properly advise a defendant about a plea offer by the State can constitute an ineffective assistance of counsel. Cottle v. State, 733 So.2d 963 (Fla.1999); Eristma v. State, 766 So.2d 1095 (Fla. 2d DCA 2000); Varela v. State, 711 So.2d 1343 (Fla. 3d DCA 1998); Steel v. State, 684 So.2d 290 (Fla. 4th DCA 1996); Young v. State, 608 So.2d 111, 112 (Fla. 5th DCA 1992). Defendant must be sufficiently informed so that he or she understands the consequences of the plea; an “inherent prejudice results from a defendant’s inability, due to counsel’s neglect, to make an informed decision whether to plea.” Cottle, 733 So.2d at 969.

A defendant who elects to go to trial or to have a probation violation hearing and who then receives a sentence greater than the plea offered by the State must prove, concerning ineffective assistance of counsel, that his counsel failed to communicate or misinformed him about a plea offer, that he would have accepted the plea offer had he been correctly advised, and that his acceptance of the plea offer would have resulted in a lesser sentence. Cottle, 733 So.2d at 967; Varela, 711 So.2d at 1345; Young, 608 So.2d at 113. The record indicates, and the affidavit in particular makes clear, that an evidentiary hearing should have been held on the sole issue of whether counsel was ineffective for failing to properly advise defendant of the plea offers and possible sentencing consequences of going forward with the hearing. See Steel, 684 So.2d at 291 (finding that a claim that misinformation supplied by counsel induced a defendant to reject a favorable plea offer can constitute actionable ineffective assistance of counsel, requiring evidentiary hearing); Cowart v. State, 864 So.2d 583 (Fla. 3d DCA 2004) (based on counsel’s misadvice, defendant rejected a favorable twenty-four-month plea offer and the court subsequently sentenced him to twenty years as a habitual offender. As the record did not conclusively refute the defendant’s claim, the cause was remanded for an evidentiary hearing on that issue only).

Therefore, we reverse for an evidentiary hearing solely on the issue whether defendant’s counsel, prior to the revocation of probation hearing, failed to properly advise the defendant of his sentencing exposure in the event of revocation, and that absent the deficient conduct, the result would have been different. In the event the trial court finds that the defendant was not properly advised, we would suggest, as the court in Eristma stated, “a good faith resumption of plea negotiations.” Eristma, 766 So.2d at 1097. We affirm the remaining issues.

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


author: PER CURIAM.

text:
    Everton A. HYLTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2859.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Everton A. Hylton, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: SCHWARTZ, Senior Judge.

text:
    Andrea JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2418.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Following Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005), we again hold that a provision in a plea agreement that the defendant is to be awarded credit for time served from a specific date effectively waives any claim to credit for time served before that date. See also Rivera v. State, 954 So.2d 1216 (Fla. 3d DCA 2007), review granted, 968 So.2d 557 (Fla.2007). Contra, e.g., Davis v. State, 968 So.2d 1051 (Fla. 5th DCA 2007); but cf. Fulcher v. State, 875 So.2d 647, 649 (Fla. 3d DCA 2004) (Cope & Wells, JJ., specially concurring), case dismissed, 890 So.2d 1114 (Fla.2004); Ryan v. State, 837 So.2d 1075 (Fla. 3d DCA 2003); Sommers v. State, 829 So.2d 379, 380 n. 1 (Fla. 3d DCA 2002). In this case, the defendant’s agreement in writing and in the plea colloquy to having violated probation specifically in return for a four-year state prison sentence with “all credit for time served from 11/14/05,” precludes his present claim for credit for time spent in boot camp in 2002 after he was originally charged, even though he would have otherwise been entitled to that credit. See Obando v. State, 867 So.2d 645 (Fla. 3d DCA 2004); Griffin v. State, 838 So.2d 1218 (Fla. 3d DCA 2003).

Affirmed.


author: LAGOA, J.

text:
    Macario RINCON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1181.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Macario Rincon, in proper person.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   LAGOA, J.

Defendant, Macario Rincon, appeals an order of the trial court denying a motion to correct illegal sentence and motion to clarify sentence. We affirm in part and reverse in part.

On March 13, 2000, Defendant entered a plea of guilty to second degree murder and three counts of armed robbery. A review of the sentencing plea colloquy shows that Defendant entered a plea for a twenty year sentence to run consecutive to his federal sentence. Defendant’s sentencing guidelines scoresheet also indicates that his state sentence is consecutive to his federal sentence.

Due to a scrivener’s error, however, the written sentence indicates that the state sentence will run concurrent to his federal sentence. As a result of the error, Defendant moved for clarification regarding the discrepancy existing between his written sentencing order and his guidelines score-sheet. The trial court denied Defendant’s motion and this appeal ensued.

It is well settled that “[wjhere there is a difference between the court’s oral pronouncement and a written order, the oral pronouncement controls.” Catalan v. State, 911 So.2d 203, 204 (Fla. 3d DCA 2005). Accordingly, on remand, the trial court shall conform the Defendant’s written sentence to the trial court’s oral pronouncement of sentence. Defendant’s presence is not required for this ministerial correction. We affirm the trial court’s order in all other respects.

Affirmed in part, reversed in part, and case remanded for further proceedings consistent herewith.

      . During the sentencing hearing, the following exchange occurred:
      The Court: And of course this sentence will be served consecutive to your federal, the sentence that you are presently serving in federal court. Is that your understanding of the arrangement, sir? Is that what you want to do?
      The Defendant: Yes.

        The Court: Okay. And sentence him to 20 years on each count. Each count to run concurrent to each other. However, this sentence will run consecutive to the federal sentence that was imposed in federal case number 197 C as in cat, R as in Robert, 000 35-001. The 20 years state sentence also contains a three year minimum mandatory sentence for the use of a firearm during the robbery.


author: PER CURIAM. SHEPHERD, J.,

text:
    Daniel Rivero GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2487.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

      Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, SHEPHERD, and SALTER, JJ.
   PER CURIAM.

Daniel Garcia appeals his conviction and sentence for aggravated battery with a deadly weapon, a knife. We affirm.

The single issue presented here is whether the trial court reversibly erred in admitting, over objection, evidence of a prior threat made by the defendant eleven days before the aggravated battery.

Garcia’s prior threat was made to his estranged wife. He showed her a knife and told her that he would use it on her if she was with another man. Eleven days later, she was with another man and Garcia used a knife on that man, the victim.

Before trial, Garcia moved for and obtained an order in limine precluding the State’s introduction of evidence regarding the prior threat. Garcia argued that the prior threat involved a different person (the wife, as opposed to the ultimate victim) and that it was excludible under Williams v. State, 110 So.2d 654 (Fla.1959).

At trial, Garcia testified in his own defense. In response to questions by his counsel, he testified that he still loved his wife and “[a]t the time of this incident, that was the reason for my being there, because I loved her.” On cross examination, counsel for the State asked Garcia, “so on August 4, 2005 [the date of the stabbing], you were very much in love with your wife?” Garcia said again, “Exactly, that was the reason for my being there.” The trial judge immediately conducted a sidebar and notified defense counsel that “the door was opened by [Garcia’s] testimony,” such that the State would be allowed to ask both Garcia and his estranged wife about the prior threat. Garcia’s counsel duly objected. Garcia denied making the threat, but during rebuttal his estranged wife confirmed it. She testified that the week before the stabbing, Garcia “told me that I had to go back with him, that if I didn’t he was going to kill me, and he pulled out a blade, a knife he had.”

We review issues relating to the admissibility of evidence and the permissible scope of cross-examination for an abuse of discretion. Kulling v. State, 827 So.2d 311, 313 (Fla. 2d DCA 2002). In this case, Garcia invited cross-examination regarding his purported love for his wife. See § 90.612(2), Fla. Stat. (2006); Brown v. State, 756 So.2d 230, 232 (Fla. 3d DCA 2000) (finding that the defendant opened the door to questions about prior crimes during direct examination testimony). We find no abuse of discretion in allowing the cross-examination and additional testimony regarding the prior threat.

Affirmed.

SHEPHERD, J.,

concurring.

I join the majority opinion, pausing only to emphasize that the facts of this case are not governed by Williams v. State, 110 So.2d 654 (Fla.1959). In this case, the trial court made two distinct rulings: (1) before commencement of trial, the trial court granted Garcia’s motion in limine to exclude the evidence of the purported pri- or threat; and (2) during trial, in a reversal of course, the trial court permitted the State to seek to elicit the same evidence from the testifying defendant (and thereafter his wife) after he spontaneously stated on cross-examination that if he knew his wife was seeing someone else, he would have left her alone. The pre-trial motion in limine was filed in response to the State’s- notice of intent to offer Williams Rule evidence, see § 90.404(2)(e)l, Fla. Stat. (2006), as was the ruling of the trial court made at that time. The mid-trial reversal of course was not.

The “Williams Rule” has been codified in section 90.404(2)(a), Florida Statutes (2007), which states:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity,

(emphasis added). The conditio sine qua non of a Williams Rule-based ruling is relevance. When a trial court admits evidence under the Williams Rule, the trial court is holding that the proffered evidence from a prior incident is similar enough to a current incident to be relevant to a material fact at issue in the case on trial. When a trial court sustains an objection made to a Williams Rule proffer, the trial court necessarily is finding that the proffered evidence is too dissimilar to be relevant, or — to put it another way — too dissimilar to be of use to a fact-finder in proving or disproving a material fact.

In this case, the trial court’s grant of Defendant’s pre-trial motion in limine was based upon: (1) the length of time between the threat and the incident; (2) the fact that the threat was made toward someone other than the victim; and (3) the fact that the victim was not known to the defendant at the time the threat was made. Although in my mind the first reason seems quite debatable since only eleven days elapsed between the proffered threat and the crime in this case, I agree with the trial court and the majority that the proffer was not admissible under Williams. See Robertson v. State, 829 So.2d 901 (Fla.2002) (holding that a defendants prior threat in 1993 to shoot his ex-wife with an assault rifle was inadmissible at his 1996 trial for killing his girlfriend with a handgun); see also Vincent v. State, 885 So.2d 963, 967 (Fla. 3d DCA 2004) (noting that the admissibility of Williams Rule evidence will depend on a fact-specific analysis in each case).

The in limine ruling, however, does not mean that the erstwhile-irrelevant threat could not become relevant as the trial unfolded. The testimony of each witness in a trial is ultimately a collection of assertions, subject to challenge by opposing counsel in one of two ways: (1) by presenting prior inconsistent statements that cast doubt on the witness’s veracity; or (2) by eliciting other evidence that casts doubt on the assertions made by that witness. However, as often said, the cross-examiner ordinarily is limited in his or her presentation to the scope of the direct examination, including “the details of an event or transaction a portion only of which has been testified to on direct examination.” Robertson, 829 So.2d at 912 (quoting Geralds v. State, 674 So.2d 96, 99 (Fla.1996)) (“[C]ross examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief ....”) (emphasis added); Coco v. State, 62 So.2d 892, 895 (Fla.1953). Accordingly, it ordinarily is impermissible for a cross-examining prosecutor to step beyond the scope of a direct examination to elicit evidence from a witness that otherwise would be barred under a Williams Rule analysis.

On the other hand, if the defense offerfc] misleading testimony or make[s] a specific factual assertion[,] the [Sjtate has the right to correct [it] so that the jury will not be misled. Robertson, 829 So.2d at 913 (quoting Bozeman v. State, 698 So.2d 629, 630 (Fla. 4th DCA 1997)). Moreover, an answer given during this type of corrective cross-examination can, in a proper case, enable the scope of cross-examination to expand even more, especially where a defendant seeks to bolster his case with his own spontaneous material statements. That is the situation we have here, as evidenced by a fulsome recitation of the cross-examination of the defendant.

During direct examination in this case, Defendant testified that “[a]t the time of [the stabbing] ... my reason for being [at my wife’s home was] because I loved her[.]” This statement makes two primary assertions: first, that Defendant loved his wife, and second, that Defendant’s love for his wife was the reason he was at her house on the day he stabbed the victim. The statement also allowed for a “corrective cross-examination” by the prosecutor. The exchange occurred as follows:

Q [By the prosecutor] So on August 4th, 2005, you were very much in love with your wife?
A [By Defendant] Exactly, that was my reason for being there.
Q And you wouldn’t want anybody else to even like her, would you?
A No, it’s not that I didn’t want [sic]. I was married to her and I only wanted to reconcile with her.
Q And you thought she was yours?
A She was married to me.
Q And she was nobody else’s because she was married to you?
A Well, if she’s married to me, of course, she’s my woman.
Q But only your woman?
A I can’t share her with anybody else. Q Were you afraid at some point you might have to share her with somebody else?
A No, never.
Q You weren’t living together, were you?
A But we were married, that would happen and then we would reconcile. Q Is it fair to say that on August 4th, 2005, you would have done anything to keep your wife?
A No, not anything. If she would have told me the truth and she would have said that she was hanging around with somebody else, I would have left her alone.

(emphasis added). At this point, the trial court called counsel sidebar and informed the defense that, “after that testimony, I have to let [the prosecutor] go into the statement,]” and that “[a]s far as the door was opened by your client’s testimony, I’m allowing him to get into [the evidence of the prior threat].” This was a proper mid-course correction by the trial court and a correct ruling made at the time, quite apart from and distinct from the original pre-trial Williams Rule decision.

Although I find it questionable whether Garcia’s general averments of love for his wife were sufficient to open the door to the highly prejudicial, previously excluded evidence of the prior threat — presumably most defendants in similar circumstances would pine over his or her spouse in a trial of this type — Garcia’s final statement, “If she would have told me the truth ..., I would have left her alone” (emphasis added), constituted a dramatic additional “factual assertion which the [SJtate had the right to correct so the jury [was] not [ ] misled.” Robertson, 829 So.2d at 913. The State’s proffered evidence that “approximately [eleven] days before the alleged aggravated battery, the defendant displayed a knife to [his wife and said] that he ... would use the knife on her if he sees her with someone else” was directly admissible to correct Garcia’s assertion.

      . Defense counsel made no objection to the trial court’s apparent unilateral decision to call the sidebar, see, e.g., Lee v. State, 789 So.2d 1105, 1106 (Fla. 4th DCA 2001) ("The law in Florida expressly prohibits a judge from becoming an advocate for either party’s position.”), although it should be noted that, during the course of the in limine hearing, the prosecutor did ask the trial court if it would "revisit [the ruling] after some testimony [was] taken[,]” with the court responding, "I will listen to it.”


text:
    Christopher Keith McCOY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-312.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Christopher Keith McCoy, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ and LAGOA, JJ.
   SUAREZ, J.

Christopher Keith McCoy appeals from the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

We affirm the trial court on all points raised by McCoy except the claims of ineffective assistance of counsel presented in grounds 4, 5-1 and 5 — III, for which the trial court failed to attach any record excerpts to support its denial of relief. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing as to claims 4, 5-1 and 5 — III, we reverse the order and remand for an evidentiary hearing or other appropriate relief only as to those specific claims. If the trial court again enters an order summarily denying postconviction relief for these claims, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Affirmed in part, reversed and remanded in part.


text:
    The ESTATE OF Alberto BABANI, Appellant, v. The STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 3D06-2888.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.

      Borgognoni & Gutierrez, LLP, and Gregory P. Borgognoni, for appellant.
    Jennifer A. Tschetter, Assistant General Counsel, Tallahassee, for appellee.
    Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Escambia County v. Trans Pac, 584 So.2d 603, 605 (Fla. 1st DCA 1991) (“[A]s the reviewing court we will defer to the agency’s interpretation of the statute if the agency’s interpretation is within the range of permissible interpretations of the statute.”).


text:
    Daniel Y. HIRSCH, Appellant, v. Raquel Radha HIRSCH, Appellee.
    No. 3D07-385.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Stack Fernandez Anderson & Harris, Gregory N. Anderson, Miami and Candice Pinares, for appellant.
    Franklin <& Criscuolo, Barry S. Franklin and Donald G. Criscuolo, North Miami Beach, for appellee.
    Before COPE, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

This is an appeal of a trial court order approving the recommendation of the general magistrate which set temporary alimony, child support, and attorney’s fees in the parties’ pending suit for dissolution of marriage. We affirm in part and reverse in part.

The husband argues, and we agree, that the magistrate should not have imputed income of $7,000 per month to the husband for the rent-free use of the home in which the parties previously resided. According to the testimony, the parties had the use of this home, which was owned by the husband’s mother’s corporation, for three years. However, the parties vacated the home in early 2005 because the property was to be sold. The instant petition for dissolution of marriage was not filed until November 15, 2005. Thus at the time of the petition and the time of the hearing before the general magistrate, the parties no longer had the use of the rent-free home.

As stated in the child support statute, gross income includes “[r]eimbursed expenses or in kind payments to the extent that they reduce living expenses.” § 61.30(2)(a)13., Fla. Stat. (2006). While by its terms section 61.30 applies only to child support, the logic is equally applicable to the imputation of income for purposes of temporary alimony. See id. § 61.08(2)(g) (“[T]he court shall consider all relevant economic factors, including but not limited to ... (g) All sources of income available to either party.”). Because the rent-free use of the home had ended, it no longer amounted to an in kind payment which reduced the husband’s living expenses. That being so, the magistrate should not have imputed to the husband $7,000 per month fair rental value. We must therefore reverse the order now before us and remand for reconsideration of the temporary alimony and child support awards after elimination of the imputed $7,000 per month amount.

We affirm with respect to the remaining issues. See Fisher v. Bond, 906 So.2d 1248 (Fla. 3d DCA 2005). We do not disturb the temporary attorney’s fee award.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.


author: ROTHENBERG, Judge.

text:
    Gary J. ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-24.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Gary J. Anderson, in proper person. Bill McCollum, Attorney General, for ap-pellee.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: KAHN, J.

text:
    Nicole FITZGERALD, Appellant, v. OSCEOLA COUNTY SCHOOL BOARD and Florida School Board Insurance Trust, Appellees.
    No. 1D07-0007.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.
    Kevin Maxwell of Vaughan & Maxwell, P.A., Orlando, and Bill McCabe, Long-wood, for Appellant.
    Pamela J. Cox and Jodi K. Mustoe of Cox & Rouse, P.A., Maitland, for Appel-lees.
   KAHN, J.

In this workers’ compensation matter, the Judge of Compensation Claims (JCC) properly appointed an Expert Medical Ad-visor (EMA). Although the EMA, Dr. Haim, rendered opinions that would have been helpful to the JCC, the doctor did not offer a definitive opinion on two critical issues — whether appellant has asthma, and whether appellant’s workplace exposure to mold was the major contributing cause of her respiratory problems. Because the JCC denied all benefits based upon a mistaken interpretation of the EMA’s opinions, we reverse and remand for further proceedings.

BACKGROUND

Appellant/claimant, Nicole Fitzgerald, formerly worked as a primary grades teacher at Mill Creek Elementary School in Osceola County. During her employment, an investigation revealed persistent mold problems in the temporary classroom unit to which she was assigned. Fitzgerald testified she had no history of asthma, but did report a history of periodic sinusitis and rhinitis, as well as allergies to mold and mildew. According to her testimony, Fitzgerald experienced respiratory difficulties over the course of nearly two academic years, during which she sought medical treatment. Appellee school board, the employer/carrier (E/C), accepted claimant’s respiratory illness as compensable “due to temporary aggravation of the claimant’s pre-existing condition from the date of accident through August 11, 2005.” The E/C denied ongoing benefits as of the latter date. Fitzgerald then filed petitions for benefits seeking, among other things, an adjudication of compensability, temporary disability benefits, and various medical expenses. The E/C took the position that claimant had received all benefits due and had reached maximum medical improvement, at which time any industrial exposure was no longer the major contributing cause of continuing respiratory problems.

Claimant’s physician and independent medical examiner (IME), Dr. Jayanthi Ravi, initially diagnosed claimant with “severe allergies, recurrent sinusitis, and mold allergy,” but testified during a deposition that she ultimately diagnosed claimant with asthma that came about “[a]s a result of ongoing mold exposure in her work environment.” The E/C’s IME, Dr. Jock Sneddon, examined claimant and disagreed, concluding that a test Dr. Ravi performed “doesn’t really demonstrate an asthmatic condition.” Dr. Sneddon testified he was “not convinced that ... Ms. Fitzgerald has asthma,” and he was inconclusive about whether or not her continuing condition was linked to the mold exposure, saying, “[T]he issue gets down to what causes what.... Further testing is really needed to ... discern those ... firm diagnoses.” Dr. Sneddon placed claimant at MMI as of the date he examined her— June 13, 2005.

To resolve the self-evident conflict between the IMEs, the JCC appointed an EMA, Dr. Daniel Haim, to examine claimant and to form his own conclusions. Dr. Haim testified that “[m]ost of [Ms. Fitzgerald’s] symptoms are allergy related,” and that claimant “has allergies [that] would be a cause of treatment” in the non-work environment. The doctor did not ratify Dr. Ravi’s asthma diagnosis: “Asthma is sort of — you know, that diagnosis is still questionable in my mind.... It’s reasonable to think of that diagnosis. But when you look at the data, that diagnosis is somewhat questionable.”

With respect to the major contributing cause of claimant’s continuing need for treatment, the following testimonial exchange occurred during Dr. Haim’s deposition between Dr. Haim and the E/C’s attorney:

Q: ... Doctor, can you say with a reasonable degree of medical certainty[,] out of all the potential causes[,] that the exposure to mold at [claimant’s] school is more than 50 percent the cause of her need for treatment as we sit here today?
A: I cannot say that it is more than 50 percent the cause of her symptoms. [Over objection by claimant’s counsel.]

Dr. Haim clarified that position during the final hearing, saying, “I think what I meant to say is that I cannot be sure that [exposure] is more [than fifty percent of the cause]. It could be or it could not. I cannot for a 100 percent sure say that exposure was responsible for more than 50 percent of her symptoms.” Subsequently, on cross-examination, this exchange occurred between claimant’s counsel and Dr. Haim:

Q: Right now you can’t say whether— you can’t say what’s the major contributing cause of her condition right now.
A: Correct.

Upon consideration of the evidence, the JCC determined in the order on appeal that any continuing respiratory condition had not been caused by the industrial exposure. The JCC specifically relied upon his interpretation of Dr. Haim’s testimony: “Dr. Haim is of the opinion that the major contributing cause of the claimant’s need for ongoing treatment is not the exposure to mold in her portable at the school.” The JCC found claimant “is not entitled to ongoing treatment as her need for treatment, if any, is' unrelated to exposure to mold,” and he denied her “claims for ongoing medical treatment [and] payment of any outstanding bills or out-of-pocket expenses.” Claimant has taken this appeal and argues that the JCC misinterpreted the EMA’s testimony in this case.

ANALYSIS

An EMA’s opinion is presumptively correct unless the JCC finds and articulates “clear and convincing evidence to the contrary.” § 440.13(9)(c), Fla. Stat. (2002). Accordingly, the EMA’s opinion has “nearly conclusive effect.” Pierre v. Handi Van, Inc., 717 So.2d 1115, 1116 (Fla. 1st DCA 1998). These black-letter rules do not, however, necessarily resolve the present case because, although Dr. Haim offered a number of opinions, he did not offer an opinion regarding the major contributing cause of claimant’s respiratory condition. Instead, Dr. Haim stated he could not say that claimant’s exposure to mold is more than fifty percent of the cause of her need for treatment, and, in fact, could not offer an opinion as to any alternative major contributing cause of claimant’s present condition. Apparently, when the JCC appointed Dr. Haim, all parties presumed that Dr. Haim would resolve the conflict regarding causation. Our conclusion that Dr. Haim did not offer a definitive opinion does not mean the JCC could not have used the opinions Dr. Haim did formulate in resolving this case.

The EMA should assist the JCC in making factual findings based on conflicting medical evidence. See Broward Children’s Ctr., Inc. v. Hall, 859 So.2d 628, 626 (Fla. 1st DCA 2003). If the JCC misinterprets an EMA’s testimony to stand for a position that the EMA did not actually adopt, reversal and remand is appropriate. See Bellamy v. Hi-Stat Mfg. Co., 668 So.2d 230, 232 (Fla. 1st DCA 1996) (“Because it appears that the JCC misinterpreted [the doctor’s] testimony, and because we cannot determine whether the JCC would have reached the same conclusion concerning [causation] ... if he had properly interpreted [the doctor’s] testimony, we reverse and remand for the JCC to reconsider [the doctor’s] testimony.”).

Here, claimant alleges she suffers from asthma caused by her industrial exposure to mold in, the classroom. The EMA’s opinion could have assisted the JCC in assessing both disputed aspects of that claim: first, whether claimant, in fact, suffers from asthma or another compensable respiratory condition, and, second, if so, whether the industrial exposure caused that condition for purposes of the workers’ compensation law. We conclude that the EMA offered opinions relevant to this two-pronged inquiry, but that ultimately he was inconclusive about both issues.

Claimant argues on appeal that the result we have reached should end this case. Specifically, claimant urges that, because the JCC misinterpreted Dr. Haim’s testimony, no competent, substantial evidence exists to support the JCC’s conclusion that claimant’s exposure is not the major contributing cause of her current respiratory condition. We reject this argument. Claimant bore the burden over the course of the proceedings below to prove her entitlement to workers’ compensation benefits. See McDevitt Street Bovis v. Rogers, 770 So.2d 180, 181 (Fla. 1st DCA 2000). As stated many times by this court, perhaps too glibly, we review the JCC’s findings of fact to determine whether competent, substantial evidence supports the JCC’s findings. See, e.g., Mylock v. Champion Int’l, 906 So.2d 863 (Fla. 1st DCA 2005). We have recently articulated, however, a rational corollary to that standard of review. A decision in favor of the party without the burden of proof need not be supported by competent, substantial evidence. See Mitchell v. XO Commc’ns, 966 So.2d 489, 490 (Fla. 1st DCA 2007). As we noted in Mitchell, “It is well-settled that a JCC may reject in whole or in part even uncontroverted testimony the JCC disbelieves.” Id. (citing Bass v. Gen. Motors Corp., 637 So.2d 304, 306 (Fla. 1st DCA 1994)). Accordingly, although appellant correctly argues that the JCC’s misinterpretation of Dr. Haim’s testimony constitutes a flaw in the final order, the bootstrapped argument that such flaw is fatal and results automatically in a victory for the claimant is not correct. Instead, remand is appropriate.

The EMA, as envisaged by the Legislature, is tasked “to assist the agency and the judge [ ] of compensation claims within the advisor’s area of expertise.” § 440.13(9)(a), Fla. Stat. (2002). Although our construction of this statute imputes “nearly conclusive effect” to the EMA’s opinion, see Pierre, 717 So.2d at 1116, we have made equally clear the proposition that the EMA’s opinion is, at bottom, a source of “assistance” to the JCC, Broward Children’s Ctr., 859 So.2d at 626. As we noted in Broward Children’s Center, “[i]t is apparent that the legislature’s intent was to create a mechanism by which an independent medical expert would offer assistance to the judge of compensation claims when he or she is faced with conflicting medical evidence from the parties’ experts.” Id.

Dr. Haim’s testimony can certainly be read here as raising doubts on aspects of the testimony of both IMEs. Accordingly, this testimony established a metric by which the JCC might measure the credibility and weight of all the other evidence presented, even though Dr. Haim was not conclusive on the ultimate issues in this case. We reject claimant’s argument that she is entitled to judgment as a matter of law, and remand this matter in order to allow the JCC to conduct the analysis we have suggested.

REVERSED and REMANDED with instructions.

WEBSTER and ROBERTS, JJ., concur.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. Meghan D. RUDY, Appellee.
    No. 4D06-4924.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    No brief filed for appellee.
   MAY, J.

The State appeals an order suppressing treatment records from a substance abuse treatment program that the defendant was ordered to attend as a special condition of her probation. The State had attempted to use the records in a violation of probation hearing. It argues that the trial court erred in suppressing the records. We agree and reverse.

The defendant entered a no contest plea to charges of possession of heroin and drug paraphernalia. The trial court withheld adjudication on the heroin charge and placed the defendant on drug offender probation with the special condition of completing a program at the Counseling and Recovery Center.

Subsequently, her probation officer filed an affidavit of violation of probation, which the defendant admitted. The negotiated plea to the violation required the defendant to complete the residential program at the same facility. Not long after, however, the probation officer filed yet another violation, alleging the defendant failed to pay costs of supervision and court costs and had tested positive for cocaine and opiates during a random drug urinalysis screening. In fact, the defendant admitted to the program director that she had used cocaine and opiates.

This time the defendant filed a motion to suppress her patient records and information from the treatment program. She argued that provisions of 42 U.S.C. § 290dd-2 (2007) preclude the disclosure and seizure of the information and records, and specifically prohibit their use to initiate or substantiate the alleged violation of probation. At the hearing, defense counsel argued that the records were confidential, and the written consent forms signed by the defendant failed to advise her that the records could be used against her in a prosecution by the State.

The State responded that the defendant’s signed consent forms acknowledged that her urinalysis test results would be released to the Department of Corrections and the court. It argued that the State was permitted to use the records when a defendant enters into a negotiated plea where in-patient treatment is a special condition of probation and the defendant violates that probation. The State also argues that a violation of probation hearing is not the same as a criminal prosecution.

The trial court disagreed with the State and granted the motion to suppress, finding that the statute and applicable regulations prohibited the treatment records from being used. From this order, the State has appealed.

The State continues to maintain that because the defendant entered into a negotiated plea, requiring her attendance at the substance abuse treatment program as a condition of her probation, the records are not confidential. Further, the State maintains that the defendant executed two written consent forms authorizing the program to turn over the results of any drug test to the Department of Corrections and the court. The State therefore concludes that the trial court reversibly erred in granting the motion to suppress. We agree.

The standard of review for a motion to suppress requires us to defer to the trial court’s factual findings as long as they are supported by substantial competent evidence, but review its legal conclusions de novo. Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003).' The facts are not in dispute, thereby narrowing our review to the trial court’s legal conclusions.

We acknowledge that section 42 U.S.C. § 290dd-2 prohibits disclosure of records relating to substance abuse treatment, except with the patient’s consent or a court order. State v. Ctr. for Drug-Free Living, Inc., 842 So.2d 177, 181 (Fla. 5th DCA 2003). Courts have recognized the essential need for confidentiality to ensure successful treatment. Id.

Nevertheless, subsection (b) allows for disclosure based on the written consent of the patient.

The content of any record referred to in subsection (a) of this section may be disclosed in accordance with the prior written consent of the patient with respect to whom such record is maintained, but only to such extent, under such circumstances, and for such purposes as may be allowed under regulations prescribed pursuant to subsection (g) of this section.

42 U.S.C. § 290dd-2(b)(l).

The trial court specifically ruled that the statute and regulations do not allow the treatment records to be used to prosecute the defendant. The court found that the written consent forms did not otherwise permit the use of those treatment records in the violation of probation hearing. We disagree with the trial court’s legal conclusion for two reasons.

First, the defendant was ordered to attend this substance abuse program as a special condition to her probation. Upon admission, the defendant signed two consent forms, specifically authorizing the program to disclose “attendance, participation and urine surveillance results information” to the Department of Corrections and the court. Thus, the defendant waived the confidentiality afforded by the statute and regulations.

Second, the trial court’s reluctance to allow the State to use that information appeared to stem from the prohibition against using the information for a criminal prosecution. This court however has previously recognized the

clear distinction! ] between a criminal trial and a violation of probation proceeding. A probation revocation hearing is more informal, the charging affidavit need not comply with the requirements indictments and information [sic] must meet, the strict rules of evidence can be deviated from, and the admission of hearsay is not error. Furthermore, there is a lesser burden of proof because only the conscience of the court must be satisfied.

Morning v. State, 416 So.2d 844, 845 (Fla. 4th DCA 1982) (quoting Cuciak v. State, 410 So.2d 916, 918 (Fla.1982)). “A violation of probation giving rise to revocation proceedings is not in itself a crime or offense as those terms are defined by the Penal Law.” People v. Silkworth, 142 Misc.2d 752, 758, 538 N.Y.S.2d 692, 697 (N.Y.Crim.Ct.1989). For these reasons, we reverse the order of suppression and remand the case to the trial court for further proceedings.

Reversed and remanded.

STONE and STEVENSON, JJ, concur.

      . The release forms consisted of a "Release and Information" authorizing the program to release "Periodic reports of current treatment progress, including attendance, participation and urine surveillance results” and "Legal Matters” for the following purpose: "to coor-díñate legal needs” to the Department of Corrections. The second form, titled "Consent for Services,” included a "Urinalysis” section and provided that the defendant understood that the results of urine and/or breath tests would be released to the court.

      . A third basis for the disclosure of the records can be found in 42 C.F.R. § 2.35 (2007), which provides:
      (a) A program may disclose information about a patient to those persons within the criminal justice system which have made participation in the program a condition of the disposition of any criminal proceedings against the patient or of the patient’s parole or other release from custody if:
      (1) The disclosure is made only to those individuals within the criminal justice system who have a need for the information in connection with their duty to monitor the patient’s progress (e.g. a prosecuting attorney who is withholding charges against the patient, a court granting pretrial or posttrial release, probation or parole officers responsible for supervision of the patient); and (2) The patient has signed a written consent meeting the requirements of § 2.31 (except paragraph (a)(8) which is inconsistent with the revocation provisions of paragraph (c) of this section) and the requirements of paragraph (b) and (c) of this section.
      Subsection (d) states that the person who receives the patient information under this subsection "may redisclose and use it only to carry out that person's official duties with regard to the patient’s conditional release or other action in connection with which the consent was given.” 42 C.F.R. § 2.35(d). Unfortunately, the State failed to call the trial court’s attention to this provision of the Code.


text:
    Nathaniel D. WATSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-1555.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Nathaniel D. Watson, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is granted.

Petitioner was charged and convicted after jury trial of two counts of battery on a law enforcement officer and one count of resisting an officer with violence that all arose from what the State conceded was an illegal traffic stop. Petitioner appealed contending that his convictions could not stand because the officers acted unlawfully in detaining him. On appeal, the State argued that the illegality of the stop was not a defense to appellant’s use of force in resisting or battering the officers. See § 776.051(1), Fla. Stat. (providing that a person is not justified in using force in resisting an arrest by a police officer). We affirmed without a written opinion.

At the time of the appeal, the question of whether section 776.051(1) applied to non-arrest situations was pending on review in the Florida Supreme Court in Tillman v. State, 934 So.2d 1263 (Fla.2006). After this court per curiam affirmed petitioner’s convictions, the Florida Supreme Court ruled in Tillman that section 776.051(1) did not apply to non-arrest situations, such as the unlawful detention arising from the illegal traffic stop in this case.

Although appellate counsel cited Tillman in the initial brief and noted that the supreme court had granted review in that case, counsel failed to request, under Florida Rule of Appellate Procedure 9.330(a), a written opinion or citation opinion that would have permitted the Florida Supreme Court to exercise jurisdiction over our decision in the direct appeal. See Jollie v. State, 405 So.2d 418 (Fla.1981) (holding that district court opinion which cites controlling authority that is pending review in Florida Supreme Court allows supreme court to exercise jurisdiction).

On direct appeal, the State relied on Dominique v. State, 590 So.2d 1059 (Fla. 4th DCA 1991), and Harris v. State, 801 So.2d 321, 323 (Fla. 4th DCA 2001), decisions applying section 776.051(1) and holding that the illegality of a detention was not a defense to charges of battery on a law enforcement officer. The supreme court’s decision in Tillman overruled Dominique and Harris. See also Perry v. State, 953 So.2d 459 (Fla.2007) (quashing a decision of this court which had relied on these cases and section 776.051(1)). The supreme court’s decision in Tillman is controlling and applies to petitioner. See Rodriguez v. State, 964 So.2d 833 (Fla. 2d DCA 2007) (holding that Tillman applied to cases then pending on direct appeal, i.e., “in the pipeline”).

Based on the undisputed facts in this case, the State could not prove the “lawful execution” element to sustain the battery on a law enforcement officer and resisting an officer with violence charges against petitioner. The State conceded at trial and on appeal that the stop and detention of petitioner was unlawful. Petitioner was not being arrested when he resisted the officers, and the officers had no reasonable suspicion that petitioner was involved in criminal activity or that he was armed and dangerous. See Yarusso v. State, 942 So.2d 939, 942-43 (Fla. 2d DCA 2006). Petitioner’s convictions for crimes where the State could not prove this essential element as a matter of law constitutes fundamental error. Rodriguez, 964 So.2d at 836 n. 1 (citing F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003)).

The trial court shall vacate petitioner’s convictions and sentences for battery on a law enforcement officer. The jury’s verdict, however, supports convictions for the lesser included offense of misdemeanor battery. § 784.03(1), Fla. Stat. We remand with instructions for the trial court to adjudicate petitioner guilty of misdemeanor, simple battery on these counts and resen-tence him accordingly. Because petitioner may now be entitled to immediate release, the trial court shall expedite these proceedings. The conviction for resisting an officer with violence, however, cannot stand and petitioner must be acquitted of this charge. See Rodriguez, 964 So.2d at 838.

SHAHOOD, C.J., KLEIN and MAY, JJ., concur.

      . Petitioner was stopped for failing to signal a turn, but the State conceded that the stop was improper because traffic was not affected. Hurd v. State, 958 So.2d 600 (Fla. 4th DCA 2007). During the ensuing "traffic investigation,” and after police had secured petitioner’s driver’s license and vehicle, petitioner pushed an officer and attempted to flee on foot. He was then tackled by another officer who testified that petitioner kicked him when he fell to the ground.

      . As explained in Tillman, even if the officers had probable cause to arrest petitioner for misdemeanor battery after he pushed the first officer, section 776.051(1) applies only where the officer is engaging in an actual arrest, not where the officer has mere probable cause to arrest. 934 So.2d at 1270. See J.H.M. v. State, 945 So.2d 642 (Fla. 2d DCA 2006) (discussing problems in applying Tillman and suggesting that the Supreme Court may have intended to apply a more formal definition of “arrest” in these types of cases which includes as a factor whether the officer has conveyed to the defendant an intent to arrest).


text:
    GRANDVIEW PALACE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. CITY OF NORTH BAY VILLAGE, et al., Respondents.
    Nos. 3D07-1844, 3D07-1980.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.
    Hyman, Spector & Mars and Michael L. Hyman, Miami; Daniels, Kashtan, Downs, Robertson & Magathan and Joseph W. Downs, III and Madelyn Simon Lozano, Coral Gables, for petitioner.
    Buchbinder & Elegant and Ira M. Elegant, Miami, for respondents.
    Before GERSTEN, C.J., LAGOA, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Grandview Palace Condominium Association (“the Association”) petitions this Court for a writ of prohibition and/or cer-tiorari relief against the City of North Bay Village (“the City”) and its chief building inspector, Paul A. Gioia (“Gioia”). We grant the writ of prohibition.

The Association is the developer-controlled association for Grandview Palace Condominium (“the Condominium”). During the Association’s control, the City cited the Condominium with multiple code violations. Additionally, the Condominium suffered subsequent hurricane damage. When the Association failed to make the requisite repairs, the City seized the building.

In response, the Association sued the City and Gioia for injunctive relief and damages, alleging tortious interference with contractual obligations and an abuse of authority. Soon thereafter, the parties entered into a court-approved settlement agreement. Under this agreement, the Association was to contract with a licensed general contractor or project manager to oversee the repairs.

Judge Ronald M. Friedman appointed Kenneth Marlin (“Marlin”) as a special master to oversee the repairs. Thereafter, since problems persisted under Marlin’s oversight, Judge Friedman further expanded Marlin’s duties. He authorized Marlin to hire and approve payment for contractors and other experts to effectuate repairs.

The Association then moved to disqualify Judge Friedman. The Association alleged it had a well-founded fear that it would not receive a fair trial because Judge Friedman’s rulings demonstrated a prejudice in favor of the City and Gioia and against the developer-controlled Association. The trial court denied the motion, and the Association seeks a writ of prohibition against Judge Friedman.

In support of its petition for writ of prohibition, the Association asserts that Judge Friedman’s appointment of Marlin, without proper notice or legal foundation, demonstrates prejudicial bias. Additionally, the Association asserts that Judge Friedman’s bias became evident at the hearing where Judge Friedman expanded Marlin’s duties. The Association posits that Judge Friedman: (1) announced in open court that he did not trust representatives of the developer; (2) threatened to jail anyone who opposed Marlin’s actions; and (3) stated that he had no concern for the financial consequences of his rulings.

The City and Gioia contend that the motion to disqualify Judge Friedman was properly denied. First, they contend that the motion was time-barred because it was based on grounds known in October 2006. Thus, the motion to disqualify filed in July 2007, was filed well-beyond the ten-day period in Florida Rule of Judicial Administration 2.330(3). This argument, however, fails to account for Judge Friedman’s subsequent expansion of Marlin’s duties.

Second, the City and Gioia reject the Association’s claim that a reasonably prudent person would fear not receiving a fair and impartial trial. They contend that Judge Friedman’s statements at the hearing only indicated his frustration with the Association’s blatant disregard of prior orders, not that the trial judge was biased.

This Court does not have to decide whether the Association has conclusively demonstrated that Judge Friedman is prejudiced against it. A party who fears not receiving a fair trial because of a particular judge’s prejudice is entitled to request that the judge disqualify himself or herself. See § 38.10, Fla. Stat. (2006); Fla. R. Jud. Adm. 2.330.

When confronted with a motion for disqualification, a judge may only determine the motion’s legal sufficiency. The judge may not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge must immediately enter an order granting disqualification and proceed no further in the action. Fla. R. Jud. Adm. 2.330(f).

Here, the Association alleged sufficient facts to support its belief that the judge was prejudiced against the developer-controlled association. Regardless of whether the allegations were true, they constituted a legally sufficient ground for disqualification. Therefore, Judge Friedman should have granted the motion and ordered the case administratively transferred.

Accordingly, we grant the writ of prohibition, and remand for further appropriate proceedings. Because a successor judge may reconsider any orders entered by his predecessor, we do not consider the Association’s petition for alternative certiorari relief with regard to the order expanding Marlin’s duties. See Fla. R. Jud. Adm. 2.330(h).

Petition for writ of prohibition granted.


text:
    Recardo CLAYTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1919.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.
    Bennett H. Brummer, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Magnotti v. State, 842 So.2d 963 (Fla. 4th DCA 2003), review denied, 857 So.2d 196 (Fla.2003); State v. Baldwin, 709 So.2d 636 (Fla. 2d DCA 1998); Love v. State, 583 So.2d 371 (Fla. 3d DCA 1991).


text:
    Hugo L. BLACK, Jr., Appellant, v. Frank JACOBS, etc., et al., Appellees.
    Nos. 3D06-1960, 3D06-1840.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.
    Hugo L. Black, Jr., in proper person.
    Murray A. Greenberg, Miami-Dade County Attorney, and Eric A. Hernandez, Assistant County Attorney, for appellees.
    Before GERSTEN, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. See § 194.171(2), (6), Fla. Stat. (2005).


author: POLEN, J.

text:
    Alwin TUMBLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2285.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Alwin Tumblin timely appeals convictions for battery on a law enforcement officer, resisting an officer with violence, and resisting an officer without violence.

The charged offenses occurred in a family courtroom during a juvenile dependency proceeding involving Tumblin’s youngest daughter. Tumblin was in custody facing a pending murder charge and appeared before the magistrate in an orange jail jumpsuit and restraints. Tumblin wanted to address the court, and was allowed to do so, but after interrupting, the magistrate ordered Tumblin be removed. Tumblin resisted and a struggle ensued in which a deputy’s finger was broken and another deputy was spit at.

Tumblin argues he was deprived of his right to a fair trial when his attorney permitted the jury to learn that Tumblin was wearing a prison jumpsuit, was restrained, and faced a pending murder charge at the time of the juvenile dependency proceeding. There was no error as it appears those facts were necessary to explain the circumstances of the events that transpired before the magistrate.

Tumblin further argues that he should not have been convicted of both resisting an officer with violence and resisting an officer without violence as both offenses arose from a single criminal episode. He claims convictions for both offenses violate his constitutional protection against double jeopardy. We agree.

We remand for resentencing as convictions for resisting arrest with violence and resisting arrest without violence are prohibited when the acts of resisting occurred as part of a single criminal episode. The lesser charge should be vacated. See Williams v. State, 959 So.2d 790 (Fla. 2d DCA 2007).

Affirmed in part, reversed in part, and remanded.

STONE and MAY, JJ., concur.