author: ALTENBERND, Judge. CANADY, Judge,

text:
    Naki HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2969.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Naki Harris appeals his convictions and sentences for possession of cocaine and possession of marijuana. We affirm Mr. Harris’s convictions without comment. We affirm Mr. Harris’s sentences because we conclude that the trial judge’s expressed surprise and disagreement with the jury’s verdict prior to imposing sentence, if a preserved error, was not a harmful one.

Mr. Harris was charged with possession of cocaine with intent to sell within 1000 feet of a church, possession of contraband in a county detention facility, possession of marijuana (more than twenty grams), and resisting an officer without violence for events occurring in July 2004. The jury acquitted Harris of possession of contraband in a county detention facility and resisting an officer without violence. For the two remaining offenses, it convicted Mr. Harris of the lesser-included offenses of possession of cocaine and possession of marijuana (twenty grams or less).

The sentencing hearing occurred immediately following the discharge of the jury. At the beginning of the sentencing hearing, the trial court pointed out that Mr. Harris had twelve prior felony convictions. The assistant state attorney observed that Mr. Harris’s record included nine prior convictions for possession of cocaine, a pri- or conviction for sale of cocaine, and a prior conviction for sale of a counterfeit substance. He also noted that Mr. Harris was released from prison on March 6, 2004, after serving a four-year sentence for possession of cocaine, was arrested for possessing cocaine shortly thereafter, and then committed the current offenses while released on bond in the pending case. The assistant state attorney commented: “I respect the jury’s verdicts[;] however, his conduct does show a certain disregard for the law.” The trial judge responded that he was “still shaking [his] head” over the jury’s verdict. The trial court then asked defense counsel to address the sentencing issues on Mr. Harris’s behalf. Defense counsel began, “First of all, from day one Mr. Harris has never denied his guilt in terms of possession. The issue he had was the sale aspect. From day one it was— you know, he was more than willing to own up to the possession charges.” The trial judge responded to this assertion:

THE COURT: So tell me what [Mr. Harris’s] version of the events are, then, that indicates that he wasn’t at least possessing with intent to sell.
DEFENSE COUNSEL: Judge, I don’t know why the jury came back with the verdict that they came back with.
THE COURT: Oh, I’ll accept that, but you tell me what the innocent version is that he is just a possessor on that date. What the version is out there on the street when he’s got ten rocks. When he admits to the cop, which apparently wasn’t argued in closing argument that he was out there selling. But in here I think about that. You caught a break on that one. But we didn’t hear anything about his admission to the cops that he was selling out there, and they saw him selling, and he’s got the additional ten rocks.
So, what was his intent out there? Please, share with me what his innocent intent was.
DEFENSE COUNSEL: Judge, I would not presume to make any comment. I was not there.

The trial court then heard from Mr. Harris, discussed the effect of the other pending case, and stated:

THE COURT: Well, as we always say, or as I always say and what the law says, the purpose of sentencing in Florida is to punish people that commit crimes. He has 12 prior felonies by my count and a bunch of misdemeanors. He has these and then when he was out on bond he was committing other felonies and got arrested on those. This is not somebody, no matter what his protests today are, that is interested in changing his life.
Gus’[s] Bar is one of the worst places in the county that you could be. Standing out there and hawking cocaine on the corner is not somebody that wants to change their life or improve their life situation.
That he’s got a little clearer head now after being yanked in the jail for the last ten months after he committed his new felony only reflects how good some of these folks do when they are actually institutionalized.
I adjudicate him guilty. Sixty months in the Department of Corrections on the possession of coke.
Adjudicate and time served on the misdemeanor.
On the other two counts the jury found you not guilty, I adjudge you to be not guilty on those. You may go hence without delay [sic].

Thereafter, the trial court addressed the additional pending charge of possession of cocaine and agreed to sentence Mr. Harris to a two-year term of imprisonment in that case concurrent with the sentence in this case. Mr. Harris appealed the judgments and sentences in this case but did not appeal the concurrent two-year term in the other case.

It is noteworthy that Mr. Harris’s trial counsel did not expressly object to the trial court’s comments or suggest that the trial court was basing its sentencing decision on improper factual determinations. During this appeal, however, Mr. Harris’s appellate counsel filed a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), claiming that the trial court had improperly considered facts during sentencing that were rejected by the jury and that the result was essentially a vindictive sentence. The trial court failed to rule on that motion in a timely manner, and thus the motion is deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B), (b)(2).

Initially, we question whether this issue is one that is waived when counsel fails to contemporaneously object or whether it constitutes a “sentencing error” that can be preserved by the filing of a motion pursuant to rule 3.800(b)(2). See Griffin v. State, 946 So.2d 610, 613 (Fla. 2d DCA 2007); see also Jackson v. State, 952 So.2d 613, 616 (Fla. 2d DCA 2007) (Stringer, J., specially concurring). Even if this error was not waived and is therefore preserved by the motion to correct sentence, we are convinced that any error by the trial court in making these comments did not contribute to the sentences and was, at worst, harmless error.

Mr. Harris argues that the trial court’s comments establish that it considered the conduct for which the jury acquitted him in determining an appropriate sentence. Citing Doty v. State, 884 So.2d 547, 549 (Fla. 4th DCA 2004), he argues that this is a due process violation that requires resen-tencing. Both the Third District and the Fourth District have held that when portions of the record reflect that the trial judge may have relied upon such impermissible considerations in passing sentence, the State has the burden to show from the record those considerations “ ‘played no part in the sentence imposed.’ ” Doty, 884 So.2d at 549 (quoting Epprecht v. State, 488 So.2d 129, 131 (Fla. 3d DCA 1986)). The State presents a very limited answer to this point without citing any case law, suggesting only that the issue is unpreserved.

We are not convinced that the trial court relied upon the conduct for which Mr. Harris was acquitted in imposing the five-year sentence for possession of cocaine. Rather, the trial court expressed surprise at the verdict, challenged Mr. Harris’s direct assertion that the trial somehow vindicated his pretrial protestations of innocence, and then addressed numerous legitimate sentencing factors before pronouncing sentence. There is no question Mr. Harris’s prior convictions and his quick rate of recidivism supported this sentence.

Nevertheless, we need not decide whether to adopt the tests espoused in Doty or Epprecht which would arguably require reversal if the court “may” have considered conduct for which Mr. Harris was acquitted, because we conclude that any error in this case is harmless. That is, we conclude beyond a reasonable doubt that Mr. Harris would have received this five-year sentence based upon his prior record and recidivism, regardless of the trial court’s opinion of the jury’s verdict in this case.

While we are inclined to agree with Judge Canady’s observation in his concurrence that the analysis in Doty is questionable, especially for sentencing under the Criminal Punishment Code, the State has not asked this court to certify conflict with the Fourth District and has made none of the arguments presented in the concurrence. We are unconvinced that the trial court made any findings of fact based on a preponderance of the evidence regarding Mr. Harris’s behavior when imposing this sentence. Cf. United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (holding that when the conduct underlying the acquitted charge is proven by a preponderance of the evidence, the sentencing court does not violate due process by considering that conduct). Given our conclusion that Mr. Harris’s sentence was not affected by any improper considerations, we are reluctant to embark on a full analysis of the interplay between Doty, Watts, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or to attempt to reconcile the Fourth District’s opinions in Howard v. State, 820 So.2d 337 (Fla. 4th DCA 2002), and Evans v. State, 816 So.2d 742 (Fla. 4th DCA 2002), with its opinion in Doty. Rather, we affirm because any error is harmless beyond a reasonable doubt.

Affirmed.

SALCINES, J., Concurs.

CANADY, J., Concurs in result only.

CANADY, Judge,

Concurring specially.

Although I agree that the convictions and sentences should be affirmed, I disagree with the majority’s analysis of Harris’s due process claim.

Unlike the majority, I would reach the merits of Harris’s claim. With all due respect to the majority, its conclusion that the error asserted by Harris is harmless beyond a reasonable doubt is unsupportable.

“The harmless error test,” as explained by the supreme court in State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986), when applied to a jury’s verdict convicting a defendant, “places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that -the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” The same test is generally applicable in the context of a sentencing error raised on direct appeal. See State v. Anderson, 905 So.2d 111, 115-16 (Fla.2005); see also Williams v. State, 720 So.2d 590, 591 (Fla. 2d DCA 1998).

Here, during the sentencing proceeding, the trial court directed defense counsel to explain why Harris “wasn’t at least possessing with intent to sell.” The trial court then referred to facts relevant to the offense of possession with intent to sell. The trial court mentioned Harris’s possession of “ten rocks,” his admission to a police officer “that he was out there selling,” and the officer’s testimony that he observed Harris selling drugs. The trial court observed that “in here I think about that.” This comment can only be understood as expressing the trial court’s intention to consider in the sentencing proceeding — “in here” — the conduct of which Harris had been acquitted by the jury. There is no indication of any sort that the trial court subsequently . abandoned its expressed intention to consider the acquitted conduct. The trial court went on to comment on Harris’s record of prior offenses. But after doing so, the court once again referred to facts relevant to the acquitted conduct, stating the conclusion that Harris had been “hawking cocaine.” Subsequently, the trial court— utilizing a Criminal Punishment Code scoresheet reflecting a lowest permissible prison sentence of 23.4 months — imposed the maximum prison sentence of 5 years.

For its conclusion that any error in considering the acquitted conduct was harmless, the majority relies on the trial court’s comments on the prior offenses: “[W]e conclude beyond a reasonable doubt that Mr. Harris would have received this five-year sentence based upon his prior record and recidivism, regardless of the trial court’s opinion of the jury’s verdict in this case.”

The trial court’s comments concerning Harris’s prior offenses do not provide a sufficient basis for concluding that there is “no reasonable possibility” that the trial court’s consideration of the acquitted conduct “contributed to” the trial court’s decision to impose the statutory, maximum sentence of five years. DiGuilio, 491 So.2d at 1135. The fact that certain of the trial court’s comments, indicated that the sentence would be influenced by Harris’s prior offenses does not erase the fact that other comments indicated that the sentence would be influenced by Harris’s intent to sell. There is no basis for concluding that the trial court considered the prior offenses a wholly sufficient independent basis for imposition of the statutory maximum sentence. Based on the trial court’s obvious focus on the circumstances pointing to intent to sell and its expressed intention to “think about” the acquitted conduct in the sentencing proceeding, there is at least a “reasonable possibility” — if not a probability — that the sentence was influenced by considerations which Harris asserts were improper under Doty. The majority’s assertion to the contrary is implausible.

Accordingly, I conclude that it is necessary to address the merits of Harris’s argument that under Doty, the trial court violated Harris’s due process rights. For the reasons I explain, I conclude that Doty does support Harris’s claim but that Doty is inconsistent with the decision of the Supreme Court in Watts.

Doty, 884 So.2d at 549, held that “[i]t is a violation of due process for the court to rely on conduct of which the defendant has actually been acquitted when imposing a sentence.” The defendant in Doty had been acquitted of sexual battery and burglary and convicted of less serious charges. In sentencing the defendant, the trial court considered the victim’s testimony that “would have supported both charges” of sexual battery and burglary. 884 So.2d at 550. The Fourth District reversed because “the state has failed to show that the court did not rely on the charges of which appellant was acquitted in meting out the most severe sentences available on two of the counts.” Id. There is no basis for distinguishing the instant case from Doty.

Doty relied on Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), which is — as I explain below — easily distinguishable from the circumstances presented by Doty. Doty made no mention, however, of Watts, which articulated a rule that is manifestly inconsistent with the rule stated in Doty.

In Waifs, the Court considered whether a sentencing court, in sentencing the defendants under the federal sentencing guidelines, could consider conduct of the defendants’ underlying charges of which they had been acquitted. The Court pointed out that a jury’s acquittal is not a rejection of facts; it is merely “ ‘an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt.’ ” 519 U.S. at 155, 117 S.Ct. 633 (quoting United States v. Putra, 78 F.3d 1386, 1394 (9th Cir.1996) (Wallace, C.J., dissenting)). After noting that “application of the preponderance [of the evidence] standard at sentencing generally satisfies due process,” Watts, 519 U.S. at 156, 117 S.Ct. 633, the Court held “that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence,” id. at 157, 117 S.Ct. 633.

Here, the record is sufficient to support a conclusion by the trial court that the State proved by a preponderance of the evidence that Harris sold cocaine; the arresting officer testified that he observed Harris conduct a drug transaction and that Harris admitted selling cocaine. Therefore, under Watts the trial court did not err in considering such evidence in sentencing Harris.

Townsend, 334 U.S. at 741, 68 S.Ct. 1252, a habeas corpus proceeding, is easily distinguishable because it involved an un-counseled defendant who “was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.” In Townsend, the sentencing court relied on both prior acquitted charges and prior dismissed charges and there was no factual basis to support the trial court’s assumption that the defendant was guilty of the charged offenses. “[I]t [was] the careless or designed pronouncement of sentence on a foundation ... extensively and materially false, which the [defendant] had no opportunity to correct by the services which counsel would provide, that rendered] the proceedings lacking in due process.” Id.

I recognize that the holding in Watts is limited by the more recent Sixth Amendment decisions in Apprendi; Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and Cunningham v. California, — U.S. -, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), and that any fact that increases the penalty for a crime beyond the prescribed statutory maximum (which includes the guidelines maximum in a mandatory guidelines sentencing scheme) must be submitted to the jury and proved beyond a reasonable doubt. Here, however, Harris was sentenced under the Criminal Punishment Code to a sentence within the statutory maximum. Accordingly, Apprendi and its progeny have no application. See United States v. Dorcely, 454 F.3d 366, 371 (D.C.Cir.2006) (discussing continuing vitality of Watts, holding “that a sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury,” and observing that “[i]n so holding, we agree with every circuit that has considered the question post-Booker ”); United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir.2005) (applying the Watts rule and stating that “Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury verdict”); People v. Dove, 124 Cal.App.4th 1, 21 Cal.Rptr.3d 52, 59 (2004) (citing Watts and stating that “acquittal on the charge of possession for sale did not bind the trial court” and that “because Apprendi and Blakely did not apply, the trial court was free to redetermine the personal use issue based on the preponderance of the evidence”).

The decision in Doty cannot be reconciled with the holding in Watts. I would reject Harris’s argument since it is based on a legal principle — as articulated in Doty — that is inconsistent with the Supreme Court’s decision in Watts.

      . § 893.13(1)(e)(1), Fla. Stat. (2004) (providing that this crime is a first-degree felony).

      . § 951.22, Fla. Stat. (2004) (providing that this crime is a third-degree felony).

      . § 893.13(6)(a) (providing that this crime is a third-degree felony).

      . § 843.02 Fla. Stat. (2004) (providing that this crime is a first-degree misdemeanor).

      . § 893.13(6)(a) (providing that this offense is a third-degree felony).

      . § 893.13(6)(b) (providing that this offense is a first-degree misdemeanor).

      . The majority questions — but does not decide — whether the issue raised by Harris was a claim of sentencing error subject to preservation under rule 3.800(b)(2). I would conclude that the error here was properly preserved under rule 3.800(b)(2) based on our cases treating other due process claims with respect to sentencing as claims of sentencing error within the scope of rule 3.800(b)(2). See Jackson v. State, 952 So.2d 613 (Fla. 2d DCA 2007); Harley v. State, 924 So.2d 831 (Fla. 2d DCA 2005); see also Summerlin v. State, 901 So.2d 997 (Fla. 2d DCA 2005).

      . Two Fourth District cases appear to be inconsistent with the holding in Doty. See Evans v. State, 816 So.2d 742, 744-45 (Fla. 4th DCA 2002) (holding that trial court could consider fact that defendant carried or possessed firearm even though he had been "acquitted of the firearm component of each of the offenses”); Howard v. State, 820 So.2d 337, 340-41 (Fla. 4th DCA 2002) (holding that trial court could consider evidence of the substantial amount of cocaine possessed by defendant even though he had been tried for trafficking cocaine but had been found guilty of the lesser-included offense of possession of cocaine).
      In Pavlac v. State, 944 So.2d 1064 (Fla. 4th DCA 2006), the Fourth District, relying on Doty, reversed a sentence because the trial court had made reference at the sentencing proceeding to the defendant's violent behavior in spite of the fact that the defendant had been acquitted of resisting arrest with violence and was convicted of resisting arrest without violence. Because the Pavlac opinion does not reflect whether evidence of the defendant's violence was presented to the trial court, it is not clear whether the requirements of Watts were satisfied.

      . Harris also relies on Epprecht v. State, 488 So.2d 129, 131 (Fla. 3d DCA 1986), which held "it is fundamental that the due process clause prohibits a court from considering charges of which an accused has been acquitted in passing sentence." Epprecht is distinguishable from this case and Watts because the evidence relied upon by the trial court in Epprecht was not proved at trial and did not relate to the underlying charges.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Gary L. LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3129.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Gary Lewis challenges his sentence of twenty months in prison for possession of cocaine. Although the trial court violated the terms of Lewis’s plea agreement when it sentenced him, we affirm because Lewis did not preserve this issue for review.

The State charged Lewis with one count of possession of cocaine. Lewis and the State subsequently entered into a negotiated plea agreement under which Lewis pleaded no contest to the charge in exchange for an agreed sentence of 16.25 months in prison. At the change of plea hearing on January 10, 2006, Lewis requested that his sentencing be deferred because of some medical issues he was facing. The trial court agreed to defer sentencing until May 1, 2006; however, the trial court specifically conditioned its acceptance of the plea agreement on Lewis’s appearance at the sentencing hearing on May 1 with no new arrests or charges. The trial court advised Lewis that if he did not appear for sentencing on May 1 or if he appeared with new arrests or charges, Lewis’s plea would stand but the trial court would not be bound by the agreed sentence. Lewis stated that he understood, and he specifically agreed to this condition. The trial court then accepted Lewis’s plea subject to this condition and set sentencing for May 1.

On May 1, Lewis appeared for sentencing with no new arrests or charges. However, at that hearing, Lewis again requested that sentencing be deferred for medical reasons. The trial court agreed to this request and deferred sentencing to May 31, 2006. The trial court again warned Lewis that if he did not appear on May 31 or if he appeared with new arrests or charges, the sentence portion of the plea agreement would not be honored. Lewis stated that he understood.

During the May 1 hearing, the trial court also ordered Lewis to undergo two drug tests before the May 31 hearing. However, the trial court did not advise Lewis that this was a new condition of his plea agreement, did not ask whether Lewis understood that this was a new condition of his plea agreement, and did not instruct Lewis that the sentence portion of his plea agreement would not be honored if he did not undergo the drug tests. Moreover, the trial court did not condition the continuance of the sentencing hearing on Lewis undergoing the drug tests. Instead, the trial court simply instructed Lewis that he had to undergo the tests, to which Lewis responded, “Okay.”

On May 31, Lewis appeared for sentencing with no new arrests or charges but without having undergone the two drug tests. The trial court told Lewis-that it would not honor the sentence portion of the plea agreement because Lewis had not completed the drug tests, and it sentenced Lewis to twenty months in prison. Lewis did not object to this sentence at the sentencing hearing, did not seek to withdraw his plea at the sentencing hearing, and did not file a motion.to withdraw his plea after sentencing. Lewis simply brought this appeal.

When faced with a negotiated plea agreement, a trial court “may not unilaterally .impose additional conditions after it has formally accepted the plea agreement without the acquiescence of defendant or defendant’s counsel.” Russell v. State, 645 So.2d 1087, 1088 (Fla. 4th DCA 1994); see also Roye v. State, 693 So.2d 1072, 1075 (Fla. 5th DCA 1997). Instead, additional conditions may be imposed as a modification of the plea agreement only if those conditions have been clearly and unequivocally understood by and agreed to by the defendant. Roye, 693 So.2d at 1075; Russell, 645 So.2d at 1088. If the defendant does not agree to the additional conditions imposed by the trial court, the defendant has the right to withdraw his plea. Russell, 645 So.2d at 1088-89.

In this case, the requirement that Lewis undergo two drug tests between May 1 and May 31 was not part of Lewis’s plea agreement and was not a condition of the trial court’s initial acceptance of Lewis’s plea agreement. Instead, it was an additional condition unilaterally imposed by the trial court almost four months after it had formally accepted Lewis’s plea. Nothing in the record shows that either Lewis or his counsel understood that the drug tests were a new condition of the plea agreement or that either of them agreed to the imposition of this additional condition. Accordingly, this additional condition did not become part of Lewis’s plea agreement, and the. trial court could not rely on an alleged violation of this condition to impose a sentence in excess of the 16.25 months set forth in the negotiated plea agreement. The trial court’s decision to impose a greater sentence violated Lewis’s plea agreement.

That said, however, Lewis did not preserve this issue for review by seeking to withdraw his plea. As a general proposition, a defendant who pleads guilty or no contest may appeal the violation of a plea agreement only if that violation is preserved by a motion to withdraw the plea. See Fla. R.App. P. 9.140(b)(2)(A)(ii)(b). Because Lewis did not preserve this error, we are powerless to correct it. Accordingly, we affirm.

Affirmed.

NORTHCUTT and VILLANTI, JJ„ Concur.


author: HAWKES, J.

text:
    William Scott MARTIN, Husband, Appellant, v. Rhonda J. MARTIN, Wife, Appellee.
    No. 1D06-4402.
    District Court of Appeal of Florida, First District.
    June 27, 2007.

      Thomas C. Staples for Staples, Ellis, & Associates; Louis K. Rosenbloum for Louis K. Rosenbloum, P.A., Pensacola, for Appellant.
    James L. Chase for Chase, Quinnell, & Jackson, P.A., Pensacola, for Appellee.
   HAWKES, J.

William Scott Martin appeals the final judgment dissolving his marriage to Rhonda J. Martin. He contends the trial court abused its discretion in three ways: first, by not awarding him permanent periodic alimony when his former wife earns approximately two and one-half times more income than he does; second, by not partitioning the marital residence despite the special circumstances of this case; and third, by summarily denying his motion for attorney’s fees and costs despite the substantial income disparity between the parties. We AFFIRM the denial of alimony, REVERSE as to the trial court’s failure to partition the marital residence and award attorney’s fees and costs, and REMAND for further proceedings.

Facts

The parties married in August 1992 and separated in December 2004. The former wife filed for dissolution in February 2005. At the time of their separation, the parties had two children under the age of ten, and had resided in the newly built marital residence for less than a year.

The marital residence was encumbered by a $229,215.00 mortgage, and had a market value of $408,000.00. The former wife had a bachelor’s degree in accounting, worked as a CPA, and, including bonuses, earned approximately $125,000.00 in gross annual income. The former husband had an associate of arts degree, worked as a factory shift worker, and, including overtime, earned approximately $50,000.00 in gross annual income.

In July 2006, the trial court entered a final judgment, which denied the former husband’s request for permanent periodic alimony; ordered equitable distribution of marital assets, including the marital home, but denied partition since the former wife was named primary residential parent for the children; and denied the former husband’s request for attorney’s fees and suit costs. The home was to be sold upon the youngest child attaining majority, or the former wife’s remarriage.

Partition of Marital Residence

Distribution of marital assets and liabilities, including the marital residence, begins with the premise of equal distribution unless there is justification for unequal distribution under the statutory factors. § 61.075(1), Fla. Stat. (2005). As a general rule, a trial court may award the primary residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or the primary residential parent remarries, unless there are special circumstances. See Martinez v. Martinez, 573 So.2d 37, 43 (Fla. 1st DCA 1990) rev. denied 581 So.2d 1309 (Fla.1991). The parties’ relative financial positions along with other considerations may constitute special circumstances. See Dehler v. Dehler, 648 So.2d 819, 820 (Fla. 4th DCA 1995).

Here, the short duration the parties resided in the marital residence, the lack of other significant marital assets, and the large differential in relative earning power together constitute special circumstances. Based upon these special circumstances, the trial court abused its discretion by refusing to order the partition of the marital residence. On remand, the trial court should order partition, unless the parties reach alternative arrangements.

Attorney’s Fees and Costs

Pursuant to section 61.16, Florida Statutes, a trial court may order one party to pay an attorney’s fee, suit money, and costs for the other party. § 61.16, Fla. Stat. (2005). The parties’ financial resources are the primary factor to consider when determining whether to award fees. Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). The purpose of section 61.16 is to level the playing field in family-law proceedings, ensuring both parties have an equal ability to obtain competent legal counsel. Glasgow v. Wolfe, 873 So.2d 483, 484 (Fla. 1st DCA 2004). “This provision expressly requires the court to make findings regarding the parties’ respective financial needs and abilities to pay.” Id. at 484-85 (quoting Sumlar v. Sumlar, 827 So.2d 1079, 1084 (Fla. 1st DCA 2002)).

In the instant case, the facts are undisputed. The former wife makes substantially more than the former husband. The former husband received a gift of approximately $7,500.00 towards his attorney’s fees and suit costs from his father. He placed the remainder of his litigation costs on a credit card. Additional “gifts” from his parents amounted to a $9,000.00 interest-free loan, a reduced rental rate on a property owned by his parents in which he was living during the pendency of the dissolution proceedings, a used car titled in his name, and use of a family owned boat.

Where the parties’ income disparity is substantial, a trial court abuses its discretion by denying a request for attorney’s fees and costs. See Jacobs v. Jacobs, 585 So.2d 404, 405 (Fla. 1st DCA 1991); Kelly v. Kelly, 491 So.2d 330 (Fla. 1st DCA 1986) (finding abuse of discretion in failing to award attorney’s fee where wife had substantially smaller income than husband, the majority of her assets would not become liquid until marital residence was sold, and without liquid assets she would, for the short run, be in a substantially worse financial position than her husband); see also Meighen v. Meighen, 813 So.2d 173, 177 (Fla. 2d DCA 2002) (holding the granting of partial attorney’s fees and costs may be an abuse of discretion where parties’ income disparity is substantial).

Earning two and half-times more than one’s former spouse constitutes a substantial income disparity. Christ v. Christ, 854 So.2d 244, 248 (Fla. 1st DCA 2003); Hyatt v. Hyatt, 672 So.2d 74, 76 (Fla. 1st DCA 1996) (holding trial court’s denial of fees erroneous due to substantial disparity in parties’ income).

Occasional gifts of temporary support given on an irregular basis may not be imputed as income under section 61.16, Florida Statutes. See Shiveley v. Shiveley, 635 So.2d 1021, 1022-23 (Fla. 1st DCA 1994) (holding past gifts from spouse’s parents are not imputed as income); Meighen v. Meighen, 813 So.2d 173, 176 (Fla. 2d DCA 2002) (holding temporary parental assistance, such as living rent-free in a home owned by a parent during the pen-dency of the dissolution proceedings does not provide a basis for imputing income). Shiveley reasoned that “[gjifts which have not yet been received are purely speculative in nature, mere expectancies, and as such are not properly included in the calculation of income for purposes of determining the need for, or the ability to provide, support.” Shiveley, 635 So.2d at 1022-23.

In reviewing the final judgment, it appears the trial court considered parental “gifts” and imputed them as income or “financial resources” when denying former husband attorney’s fees and costs. If such was the case, the trial court erred as a matter of law. Id. Since there were no findings made, we cannot determine the rationale for the trial court’s denial of attorney’s fees and costs.

AFFIRMED in part, REVERSED in part, and REMANDED. On remand, the court may receive additional evidence if necessary.

PADOVANO and POLSTON, JJ., concur.

      . Nothing in this opinion should be construed to prohibit one party from purchasing the marital residence from the other party in lieu of partition.


author: WALLACE, Judge. ALTENBERND, Judge,

text:
    Joe ALMEDA, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4418.
    District Court of Appeal of Florida, Second District.
    June 27, 2007.
   WALLACE, Judge.

Joe Almeda appeals the summary denial of his motion for return of personal property. We reverse the summary denial of the motion, and we remand for further proceedings consistent with this opinion.

The Facts and Procedural Background

On February 25, 2000, Hillsborough County sheriffs deputies executed a search warrant at Mr. Almeda’s residence. As a result of the search, the deputies seized a number of items relating to the prosecution of Mr. Almeda for two counts of lewd and lascivious battery and one count of computer pornography. In November 2002, Mr. Almeda reached a negotiated plea agreement with the State on the pending charges. He pleaded guilty to one count of lewd and lascivious battery, and the State nolle prossed the other charges. The circuit court sentenced Mr. Almeda to two years of community control, followed by six years of sex offender probation. Later, Mr. Almeda admitted that he had violated the terms of his community control. In January 2003, the circuit court sentenced him to ten years in prison.

In January 2005, Mr. Almeda filed an emergency motion to stay disposal of personal property and a motion for return of property. In his motion for return of property, Mr. Almeda requested the return of thirteen items of personal property that had been seized in the execution of the search warrant. The Hillsborough County Sheriffs Office (the HCSO) filed a response alleging that “a' number of the items” that had been seized during the execution of the search warrant had already been returned to Mr. Almeda. In addition, the HCSO offered to return three items of property that it said had not previously been returned. Relying on the HCSO’s response, the circuit court ordered the return of the three items mentioned in the response and directed Mr. Almeda to reclaim his property within sixty days. Notably, only one of the three items that the circuit court directed the HCSO to return was listed in Mr. Alme-da’s motion for return of property.

Next, Mr. Almeda filed a motion for rehearing. In his motion for rehearing, Mr. Almeda pointed out that thirteen of the items he had requested in his motion for return of property were not returned or identified in the circuit court’s order. The circuit court denied the motion for rehearing. Without attaching any documents to its order, the circuit court concluded that the record demonstrated that the State Attorney’s Office for the Thirteenth Judicial Circuit had possession of the remaining thirteen items that Mr. Almeda was seeking to have returned. The circuit court directed Mr. Almeda to contact the State Attorney’s Office concerning the return of the remaining items. The order denying the motion for rehearing provided that if Mr. Almeda’s renewed efforts to recover his property were unsuccessful, he could file a motion for the return of his property from the State Attorney’s Office.

Mr. Almeda’s efforts to obtain the return of his personal property from the State Attorney’s Office were unsuccessful. Accordingly, he filed a second motion requesting the return of the remaining thirteen items that had been seized during the execution of the search warrant in 2000.

The State Attorney responded to Mr. Almeda’s second motion, arguing that the items seized by the HCSO relate to the charge to which Mr. Almeda pleaded guilty, that they are evidentiary in nature, and that they should not be returned. The State Attorney asserted further that all of the items “could be admissible to establish that a crime occurred and that [Mr. Alme-da] is the person who perpetrated the crime.” The State Attorney concluded that because the “items fall squarely in the definition of evidence,” his office was entitled to retain them. Characterizing the State Attorney’s response as “persuasive,” the circuit court entered an order denying Mr. Almeda’s second motion for return of property. Mr. Almeda timely filed this appeal.

Discussion

“A trial court’s jurisdiction over a criminal proceeding includes inherent authority over property seized or obtained in connection with the proceeding and thus held in custodia legis.” Stevens v. State, 929 So.2d 1197, 1198 (Fla. 2d DCA 2006) (citing White v. State, 926 So.2d 473, 474 (Fla. 2d DCA 2006), and Eight Hundred, Inc. v. State, 781 So.2d 1187, 1191-92 (Fla. 5th DCA 2001)). “This authority continues beyond the termination of the prosecution, thus enabling the court to direct the return of the property to its rightful owner.” Id. A facially sufficient motion for return of property must specifically identify the property and allege that it is the movant’s personal property, that the property is not the fruit of criminal activity, and that the property is not being held as evidence. Scott v. State, 922 So.2d 1024, 1026 (Fla. 5th DCA 2006) (citing Bolden v. State, 875 So.2d 780, 782 (Fla. 2d DCA 2004), and Eight Hundred, Inc. v. State, 895 So.2d 1185, 1186 (Fla. 5th DCA 2005)).

The circuit court might have concluded that Mr. Almeda’s motion was fa-dally insufficient because the motion did not include an allegation that the property was not the fruit of criminal activity. See Bolden, 875 So.2d at 782. Instead, based on the State Attorney’s response, the circuit court denied the motion on the merits. Alternatively, if the circuit court deemed the motion’s allegations to be facially sufficient, the circuit court should have either attached portions of the record that conclusively refuted Mr. Almeda’s claim or held an evidentiary hearing. See id. Unfortunately, the circuit court failed to do either. It may be true that the requested items are evidentiary in nature and that they “could be admissible” to establish both the commission of one or more crimes and Mr. Almeda’s identity as the perpetrator. Nevertheless, these facts alone — if true — would not establish that the State Attorney’s Office was entitled to retain Mr. Almeda’s property. In short, there is no evidentiary support for the circuit court’s conclusion that Mr. Almeda is not entitled to the return of his property. Accordingly, we reverse the circuit court’s order, and we remand for the eir-cuit court to reconsider Mr. Almeda’s motion.

Proceedings on Remand

On remand, the circuit court should determine whether Mr. Almeda’s motion is facially sufficient. If the circuit court determines that the motion is facially sufficient, it may hold an evidentiary hearing. If the circuit court again summarily denies Mr. Almeda’s claim, it must attach to its order those portions of the record that conclusively refute the claim. Conversely, if the circuit court determines that Mr. Almeda’s motion is facially insufficient, it should identify any deficiencies in the motion and grant Mr. Almeda leave to amend his motion within a reasonable time.

Reversed and remanded with directions.

DAVIS, J., concurs.

ALTENBERND, J., concurs specially.

ALTENBERND, Judge,

Concurring specially.

I fully concur in Judge Wallace’s opinion for the court. I write only to suggest that there is a need for statutes, rules, and forms to facilitate the process of returning personal property to defendants in criminal cases once the cases have been resolved. As things stand, the courts resolve these issues using their “inherent authority.” See Stevens v. State, 929 So.2d 1197, 1198 (Fla. 2d DCA 2006). This process is slow, expensive, and somewhat haphazard.

Mr. Almeda is a typical petitioner. At the time he reached a negotiated plea, he did not arrange for return of items seized from his home during a lawful search. For two and one-half years, he made no effort to obtain this property. After he violated his probation and had been incarcerated, he had some spare time to seek return of his property. None of the items described in his handwritten, unsworn motion appear to be items of significant economic value. Among other things, he is seeking return of a Christmas card, a login sheet, a black address book, and various folders with papers. Despite their limited economic value, Mr. Almeda is generally entitled to the return of this property unless it is possible evidence that could be used in a criminal proceeding.

A pro se litigant like Mr. Almeda has a difficult time navigating the array of common law rules governing the return of personal property. The case law in this area is the result of appeals from various and sundry handwritten petitions filed by prisoners with little or no training in the law. The case law is probably not a complete and coherent body of law.

To further complicate matters, property seized in connection with criminal prosecutions does not fit into two or three simple categories. For example, it can include cash, illegal drugs, firearms, and Christmas cards. Rights to the property may depend upon whether the prosecution resulted in a conviction, an acquittal, or a dismissal. As this case demonstrates, several different governmental agencies may possess the property. The involvement of several agencies complicates the allegations that must be included in the motion to return property. Moreover, the defendant’s rights may also be affected by forfeiture proceedings initiated by a governmental agency other than the State Attorney and handled by a judge other than the judge assigned to the criminal case.

These circumstances combine to make such pro se litigation time-consuming and inefficient for everyone involved. In this case, during the last two years five judges, several staff attorneys, an assistant state attorney, and various support staff have all worked on the project of returning Mr. Almeda’s Christmas card.

It would seem that the legislature could create a reasonably comprehensive statute governing the return of such property. The statute could give clarity that would help all parties involved and streamline this process. It could establish a reasonable statute of limitations for such claims. If the statutes were supported by appropriate procedural rules and standard forms, these matters could be resolved with greater ease in the trial courts and result in fewer appeals.

      . If the items are not still in the law enforcement agency's possession, the defendant must pursue a separate civil action against the agency that has possession of them. Butler v. State, 613 So.2d 1348, 1350 (Fla. 2d DCA 1993); Brown v. State, 613 So.2d 569, 571 (Fla. 2d DCA 1993).

      . "If the trial court finds that a motion to return property is facially sufficient, it may order the State to respond by citing applicable case law and attaching portions of the record to refute the defendant’s contention that the property should be returned, after which the motion may be summarily denied. Durain[ v. State, 765 So.2d 880, 880-81 (Fla. 2d DCA 2000) ]. In the alternative, the trial court may hold an evidentiary hearing.” Bolden, 875 So.2d at 782.

      . In Bolden, this court suggested the following guidelines for resolving issues concerning the return of a defendant's property:
      At the evidentiary hearing, the trial court must first ascertain whether the property was confiscated by a law enforcement agency in connection with a criminal prosecution and whether the property is still in the agency’s possession. Stone[ v. State, 630 So.2d 660, 661 (Fla. 2d DCA 1994)]. If the State can show that the property was entered into evidence or that the State intends to pursue forfeiture against the property, the defendant is not entitled to have the property returned. Id. at 661. Similarly, the defendant is not entitled to have the property returned if the State intends in good faith to bring another criminal prosecution at which the items would be admissible in evidence. Oleandi v. State, 731 So.2d 4, 6 (Fla. 4th DCA 1999); Kern v. State, 706 So.2d 1366, 1370 (Fla. 5th DCA 1998). However, if the State is "unable to connect the items to specific criminal activity, and no one else can be identified who can demonstrate a superior possessory interest in the property, it should be returned to [the defendant] or to such person(s) as he may designate.” Stone, 630 So.2d at 661.
      875 So.2d at 782-83 (second alteration in original) (footnote omitted).


author: WARNER, J.

text:
    Gus FENNELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1871.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The appellant challenges his conviction for first-degree murder, arguing that the state failed to prove premeditation. While admitting that evidence of gunshot wounds and incriminating statements were arguably consistent with a premeditated design, he maintains that the state did not exclude every reasonable hypothesis of innocence. We disagree, concluding that the state’s evidence was sufficient to support premeditation to the exclusion of his hypothesis of innocence. We therefore affirm.

The appellant, Gus Fennell, and the victim, Ernestine Monds, lived together and were romantically involved for several years. Their relationship was difficult. Monds would drink, and the two would argue. Monds threw Fennell out of her apartment several times in the past. Approximately a month before the murder, Monds made Fennell move out again, and neighbors, Darryl Horne and Yolanda Price, gave Fennell a ride to a rooming house. On the way, he told them, “If I ever get back there, I am going to kill this bitch.” Fennell later moved back into the apartment.

The week before the murder, Monds was drinking and arguing with Fennell at the apartment. Linda Lester, a close friend of Monds, was also present. The argument got physical when Monds attempted to kick Fennell, and Fennell ended up tripping Monds, causing her to fall. He helped her up, but they continued to argue. Fennell then reached under the couch and pulled out a gun, pointing it directly at Monds. Lester intervened and told the appellant, “don’t do it ... not in front of me.” After a brief moment, Fen-nell then put the gun away. While he drew the gun on Monds, he did not verbally threaten her.

On the night of the murder, Lester, Horne, and Price were partying outside Monds’ apartment. Monds did not join them. At approximately 6:00 p.m. Fennell arrived, and Monds left. Around 7:30 p.m. Lorena Jenkins, Monds’ sister, arrived, and Monds was not there. Fennell told Jenkins that he needed someplace to go because Monds was going to put him out of the apartment again. Jenkins and a friend gave Fennell a ride to the gas station so that he could get some beer. They dropped Fennell off at Monds’ apartment at about 8:30 or 8:45 p.m.

Lester saw Monds return around 9:00 p.m. She went into the apartment, and Lester then heard gunshots, but she was not sure where they came from. A few minutes later she saw Fennell putting a sheet over the window. He exited the apai'tment and asked for a cigarette. Lester asked him if everything was all right, and Fennell said, “Everything all right now.” He told the group outside that he was going to the store.

After Fennell left the apartment, Lester felt something was wrong because Monds had not come out of the apartment. Another neighbor knocked on the door but received no answer. The group called the police who came and broke down the door, discovering Monds lying face down in a pool of blood. In one hand was a cell phone and in the other was a phone handset. Monds was dead. None of the state’s witnesses testified that the murder scene looked like a struggle had occurred.

The police arrested Fennell at a gas station shortly after the shooting. The arresting officer handcuffed Fennell and had him sit down on the curb. Fennell then told the officer that “the gun is in the car.” The bullets recovered from Monds’ body were found to have been fired from that gun. A test of the gun revealed that it took a heavier force to pull the trigger than some handguns.

Police obtained a swabbing from the grip and trigger of the gun found in Fen-nell’s car. The medical serologist found a weak DNA profile from the swabbing. That profile matched Monds’ DNA, most likely from her skin cells. To transfer skin cell DNA from a person to an object would require some sort of force or friction. The expert also noted that DNA could remain on an object for weeks or months, depending upon conditions. •

Dr. Stuart Graham, the medical examiner, conducted the autopsy on Monds. Monds sustained four injuries to her head and neck. The autopsy also revealed that Monds’ blood alcohol level was 0.22. The injuries included three gunshot wounds and a fourth wound caused by some type of projectile; however, Dr. Graham was not sure exactly what caused the fourth injury. The first two shots were not fatal. One bullet entered Monds’ right cheek and lodged in her left cheek after passing through the back of her nose. Another gunshot wound entered in the back of her head, slightly above the ears. The bullet was lodged within her skull but it did not go all the way through the skull. The fatal gunshot wound came from a bullet that penetrated the back of her neck. This bullet penetrated Monds’ skull, then penetrated her brain stem, and finally lodged itself in the brain near the cerebellum. The absence of soot or stippling surrounding the gunshot wounds indicated that all of the shots were fired from a minimum distance of eighteen inches. Monds could not have shot herself in the back of the head, yet one non-fatal shot and the fatal shot entered her body through the back of her head. Dr. Graham also concluded that there was no evidence that the incident was a close-contact shooting.

The state rested its case after the medical examiner’s testimony. Fennell moved for a judgment of acquittal on the issue of premeditation, which the trial court denied. Fennell presented witnesses expanding on Monds’ drinking, including the fact that she became aggressive when she drank. Fennell then testified that Monds and he frequently argued, and she threw him out of the apartment approximately once a month. He admitted fighting with her a week before the murder but denied pulling a gun. Instead, he said he retrieved the gun from under the couch and put it in a drawer.

On the night of the murder, Monds and Fennell argued about bills. She told him to get out and threw his suitcase against the door. When he pleaded to stay, she left the room and returned with a gun. She told him to get out, or she would shoot him. Just then she was distracted by a sound, and he grabbed for the gun, trying to remove it from her hand. She did not let go, and the gun went off several times as they both fell to the floor. He panicked and left the house.

After the presentation of all the evidence, and a denial of a renewed judgment of acquittal on the first-degree murder charge, the jury found Fennell guilty of first-degree murder. The trial court entered judgment and sentenced Fennell to life in prison. This appeal follows.

Fennell argues that the state failed to prove premeditation, and the state’s circumstantial evidence was not inconsistent with his reasonable hypothesis of innocence that gunshot wounds were inflicted during an argument and struggle. We disagree, as the state presented evidence that was sufficient for the jury to find premeditation, where the gunshot wounds were inconsistent with a close-contact fight, and where Fennell had expressed an intent to kill Monds in the past and had actually drawn a gun on her the week prior to the murder.

The unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed or any human being constitutes murder in the first degree. § 782.04(l)(a)l., Fla. Stat. Premeditation is the essential element that distinguishes first-degree murder from second-degree murder. See Green v. State, 715 So.2d 940, 943 (Fla.1998). “Premeditation can be formed in a moment and need only exist ‘for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.’ ” DeAngelo v. State, 616 So.2d 440, 441-42 (Fla.1993) (quoting Amy v. State, 580 So.2d 610, 612 (Fla.), cert. denied, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991)).

Where the element of premeditation is sought to be established by circumstantial evidence, the evidence must be inconsistent with every other reasonable inference. Cochran v. State, 547 So.2d 928, 930 (Fla.1989). Premeditation may be inferred from:

the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted. It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it insofar as the life of the victim is concerned.

Jackson v. State, 575 So.2d 181, 186 (Fla.1991) (quoting Sired v. State, 399 So.2d 964, 967 (Fla.1981)). A jury is not required to believe a defendant’s version of events, however, when the state introduces conflicting evidence. DeAngelo, 616 So.2d at 442.

The state proved that Fennell had threatened to kill Monds a month before the actual murder. The week prior to the murder he drew a gun on Monds during an argument. Lester intervened, telling Fen-nell he could not shoot Monds. On the night of the murder, Fennell shot Monds three times, twice in the back of the head. None of the shots constituted close-contact shots, thus negating Fennell’s version that the two were fighting over the gun when it went off. Furthermore, Monds was found with two telephones in her hands, also completely inconsistent with Fennell’s hypothesis of innocence that the shooting was a result of a struggle over the gun. The fatal shot occurred to the back of Monds’ head from a distance of at least eighteen inches. The amount of force necessary to activate the trigger pull also militated against an accidental discharge. This evidence is inconsistent with the defense’s hypothesis that the shooting was a result of an argument and scuffle for the gun. Even if a scuffle occurred in which Monds had possession of the gun, the fact that Fennell shot Monds twice in the back of the head shows that those shots were not the result of a scuffle.

The cases cited by Fennell for the proposition that the state’s evidence did not prove premeditation to the exclusion of his reasonable hypothesis of innocence are all distinguishable. In those cases, the state did not produce the level of circumstantial evidence present in this case — namely, the prior statements and actions showing an intent'to kill, coupled with the type of wounds inflicted. For instance, in Green v. State, 715 So.2d 940 (Fla.1998), a death penalty case, the supreme court found insufficient evidence of premeditation. The state had shown that on the night of the murder the victim was intoxicated and had been fighting with her boyfriend. Earlier on the same day, Green had threatened to kill the victim “in a fit of rage.” Later, Green and a friend picked her up and “did things to her.” Green told a friend that “the bitch got crazy on us,” and they killed her. The victim had three stab wounds but no weapon was found. She died of strangulation. The court also noted Green’s low intelligence in concluding that the state’s evidence did not overcome Green’s theory that the murder was committed without a premeditated design. In contrast, in this case, Fennell had verbally announced an intent to kill Monds a month before the murder and had pulled a gun on her the week before the murder. Secondly, the shots to the back of the head could not have been inflicted in a close-contact scuffle.

In Coolen v. State, 696 So.2d 738 (Fla.1997), also cited by Fennell, Coolen and the victim had been with others drinking over the course of the evening when Coo-len “came out of nowhere” and began stabbing the victim six times during a fight. The supreme court found evidence that the killing occurred as a result of the escalation of the fight insufficient to prove premeditation. However, unlike the present case, no prior incidents had occurred between Coolen and the victim, whom Coolen had met the night of the murder.

Although a single gunshot wound to the back of the head was considered insufficient evidence of premeditation in Norton v. State, 709 So.2d 87 (Fla.1997), in that case the state presented no evidence of prior threats or provocation between the defendant and the victim. Here, of course, there was evidence of prior threats as well as more than one gunshot wound to the back of the head.

Fennell also cites Castillo v. State, 705 So.2d 1037 (Fla. 3d DCA 1998), as supporting his claim that the evidence was insufficient to prove premeditation. There, the victim had been killed in a hotel room by a gunshot fired into the left side of her head from three feet away. Prior to the murder Castillo had physically abused the victim. The abuse included hitting her on the head with a gun. On the morning of her death, a hotel maid overheard Castillo arguing with the victim. Castillo left, and later the maid checked the room and found the victim dead on the floor. Castillo’s accounts of the event to law enforcement, although inconsistent with one another, “were tales of sex, drugs, jealousy and rage.” Id. at 1038. However, missing from Castillo’s accounts were statements of any conscious purpose to kill the victim. Id. The Third District reversed Castillo’s conviction for first-degree murder and remanded for instructions to enter judgment for second-degree murder. Although there are some similarities to this case, such as the volatile relationship between the victim and the defendant, there is substantially more evidence in this case which shows premeditation, including the prior threats to kill and the fact that the gunshots occurred to the back of Monds’ head. In sum, none of the cases cited by Fennell support reversal under the facts of this case.

In addition to his challenge of the evidence proving premeditation, Fennell raises two issues with respect to the introduction of evidence. We affirm without further discussion, because even if error occurred in the challenged evidentiary rulings, it was harmless beyond a reasonable doubt.

Affirmed.

GROSS and TAYLOR, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    George BAPTISTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2599.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.

      Bennett H. Brummer, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before RAMIREZ and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The defendant’s primary point on this appeal from a jury conviction for possession of a firearm by a convicted felon challenges the denial of his motion to suppress the firearm he claims was unconstitutionally secured.

Baptiste was Terry-stopped by police after. a then-anonymous informant dialed 911 to report that a person who matched his description was “waving” a firearm in the vicinity. Immediately after the stop, the person who called came to the scene and, without giving his name, identified himself as the caller and Baptiste as the person he saw with a gun. A subsequent pat-down and search of Baptiste’s person indeed revealed that he was carrying a nine-millimeter Taurus handgun. The defendant’s argument is based on the fact that when Baptiste was first observed and stopped by the police, he was merely walking down the street and neither had a weapon in plain view or was apparently otherwise violating the law. Relying on Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the defendant contends that the original anonymous tip was insufficient to support the stop and subsequent seizure. We disagree.

In two vital respects, we distinguish J.L. from this case:

1. In the first place, the content of the original tip described not merely the easily falsified and otherwise unverifiable fact that the defendant was carrying a concealed firearm, as in J.L., but rather the quite obvious and extremely dangerous fact that a firearm was being openly displayed. In these circumstances, the “tip” itself rendered it reasonable for the officer to effect the stop necessary to inquire further. See United States v. Perkins, 363 F.3d 317, 321 (4th Cir.2004) (caller revealed location and basis of knowledge— observing men pointing guns in the front yard of a “known drug house” — reasonable suspicion for stop found), cert. denied, 543 U.S. 1056, 125 S.Ct. 867, 160 L.Ed.2d 781 (2005). But see United States v. Brown, 401 F.3d 588 (4th Cir.2005) (anonymous tip alleging illegal possession of firearm that only identifies suspect and his location— reasonable suspicion for stop not found).

2. Again unlike J.L., the “anonymous tipster” who made the 911 call was transmogrified into a constitutionally reliable citizen informant when the caller — before the pat-down search and seizure of the gun — came to the scene and identified himself to the officers. See Chaney v. State, 956 So.2d 535 (Fla. 4th DCA 2007); Castella v. State, 2007 WL 1426880 (Fla. 4th DCA Case no. 4D06-2495, opinion filed, May 16, 2007)[32 Fla. L. Weekly D1285]; Manning v. State, 957 So.2d 111 (Fla. 4th DCA 2007); Carattini v. State, 774 So.2d 927 (Fla. 5th DCA 2001); Milbin v. State, 792 So.2d 1272 (Fla. 4th DCA 2001); see also United States v. Heard, 367 F.3d 1275 (11th Cir.2004), cert. denied, 543 U.S. 913, 125 S.Ct. 235, 160 L.Ed.2d 194 (2004); United States v. Valentine, 232 F.3d 350 (3d Cir.2000), cert. denied, 532 U.S. 1014, 121 S.Ct. 1748, 149 L.Ed.2d 670 (2001); United States v. Holmes, 360 F.3d 1339 (D.C.Cir.2004), vacated and remanded on other grounds, 543 U.S. 1098, 125 S.Ct. 1046, 160 L.Ed.2d 992 (2005); United States v. Christmas, 222 F.3d 141 (4th Cir.2000), cert. denied, 531 U.S. 1098, 121 S.Ct. 830, 148 L.Ed.2d 712 (2001). See generally J.L., 529 U.S. at 274, 120 S.Ct. 1375 (Kennedy, J., concurring); State v. Maynard, 783 So.2d 226 (Fla.2001).

We find no merit in the other point presented for reversal.

Affirmed.

      . It is admitted that an otherwise justified Terry stop may, as in this case, be effected at gunpoint. See Carroll v. State, 636 So.2d 1316 (Fla.1994), cert. denied, 513 U.S. 973, 115 S.Ct. 447, 130 L.Ed.2d 357 (1994); State v. Ruiz, 526 So.2d 170 (Fla. 3d DCA 1988), review denied, 534 So.2d 401 (Fla.1988), cert. denied, 488 U.S. 1044, 109 S.Ct. 872, 102 L.Ed.2d 995 (1989).


text:
    Karry KADUK, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3776.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.

      Carey Haughwout, Public Defender, and Ian Seldin, 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.
   WARNER, J.

The appellant, Karry Kaduk, challenges the trial court’s order of revocation of probation. He contends the violation of changing residences without approval of his probation officer was not a willful and substantial violation, where he removed himself from his residence because of a domestic dispute. We conclude that the trial court did not abuse its discretion in determining that failure to notify his probation officer for a period of weeks after the incident makes this violation willful and substantial. In addition, Kaduk contends that the trial court erred in failing to familiarize itself with prior probation revocation proceedings before sentencing him on his current violation. Because Florida Rule of Criminal Procedure 3.700(c) does not apply in probation violation proceedings, the trial court’s consideration of previous admitted violations in determining whether to revoke his probation was not an abuse of discretion. We affirm.

Kaduk pled to and was sentenced for multiple counts of burglary of a dwelling, grand theft, and dealing in stolen property. After he served the prison portion of his sentences, he was placed on probation. Over the years his probation supervisors filed five affidavits for violation of probation. Three times Kaduk admitted the violations, and Judge Shapiro readmitted him to probation and modified its terms. A fourth time, Judge Shapiro found no willful violation.

On the fifth affidavit of violation of probation, Kaduk was charged with changing his residence without permission, failing to file a monthly report, and failing to comply with the probation officer’s instructions. Judge Holmes presided over this proceeding. At the hearing, the probation officer testified that she had received a call from Kaduk’s fiancée on April 16, 2005, telling her that Kaduk had -moved out of their residence because they had been fighting. The fiancée believed that Kaduk was at his mother’s home, but the officer did not go to the mother’s house. Instead, she called Kaduk’s cell phone but received no response.

Kaduk did not call his probation officer until April 18th or 19th. He apologized for missing his appointment on April 5th, his normal reporting date, explaining that he had been busy at work. He also informed her that he had moved out of his residence because of a domestic dispute on the night of April 3rd. The officer testified that she told Kaduk to report the next day, but he did not come to the office until April 26th. By that time the officer had filed an affidavit of violation.

Judge Holmes found that Kaduk’s violations of probation in changing his- residence without permission, failing to report on April 5th, and failing to comply with his probation officer’s order to report to the office on April 19th were willful and substantial violations, particularly given the time Kaduk had been on probation and his understanding of its rules. The court revoked his probation and sentenced him to prison for ten years, less all jail and prison credit to which he was entitled. Kaduk appeals.

During the appeal process, Kaduk filed a Rule 3.800(b)(2) motion to correct sentence, alleging the trial court had erred in referencing prior probation violations when determining whether to revoke his probation. In responding to this allegation, the trial court said:

This Court was merely responding to defense counsel’s request that the Court reinstate probation or “give him another shot” (p. 46). This Court did not need to look at other violations nor the transcripts to see that Defendant was not a likely candidate for continued supervision. This Court is certainly free to take into account Defendant’s prior history of supervision in determining whether to reinstate or revoke probation.

The trial court denied the motion.

An appellate court reviews a trial court decision on violations of probation under an abuse of discretion standard. Myers v. State, 931 So.2d 1069, 1071 (Fla. 4th DCA 2006); Matthews v. State, 736 So.2d 72, 75 (Fla. 4th DCA 1999). “The determination of whether a violation of probation is willful and substantial is a question of fact and will not be overturned on appeal unless the record shows that there is no evidence to support it.” Riggins v. State, 830 So.2d 920, 921 (Fla. 4th DCA 2002). “For a violation of a condition of probation to trigger a revocation, the violation must be willful and substantial, and the state must prove it by the greater weight of the evidence.” Myers, 931 So.2d at 1071 (quoting Tobias v. State, 828 So.2d 1066, 1068 (Fla. 4th DCA 2002)). A trial court has broad discretion in determining whether a violation of probation is willful and substantial. See State v. Carter, 835 So.2d 259, 262 (Fla.2002).

Kaduk argues that leaving his residence because of a domestic quarrel does not constitute a willful and substantial violation of the terms of his probation. On the facts of this case, the trial court disagreed, and competent substantial evidence supports that conclusion. Kaduk’s failure to report his absence from his residence for a period of over two weeks is not an insignificant violation of his probation conditions.

Kaduk relies on Thomas v. State, 760 So.2d 1138 (Fla. 5th DCA 2000), where the defendant left his approved residence and moved back into his mother’s home, which had previously been his approved residence, after having a domestic quarrel with his girlfriend over Thanksgiving weekend. When the parole officer located the defendant the Monday following Thanksgiving, Thomas explained to the officer that he attempted to call him at his office but was unsuccessful because of the long holiday weekend. The trial court found that Thomas violated the condition that he obtain approval before changing his residence. On appeal, the Fifth District held that the circumstances did not show a willful violation, explaining that “Thomas’ move over a holiday weekend back to the original approved residence demonstrated a degree of responsibility prompted by the exigencies of the circumstances.” Id. at 1139.

In contrast to Thomas, Kaduk moved on April 3rd but did not speak with his probation officer until April 18th or 19th—more than two weeks after the move. Other than Kaduk’s own testimony, there was no evidence that he attempted to contact his probation officer before then. While Ka-duk claimed that he left his probation officer a message, when he received no response then, as the trial court commented, he should have called her again. Moreover, unlike in Thomas, there was no evidence that the mother’s house was a prior approved residence.

The trial court is in the best position to evaluate the credibility of witnesses and an appellate court must give great deference to the findings of the trial court. Riggins, 830 So.2d at 921. The record contains substantial competent evidence to support the conclusion reached by the trial court that Kaduk willfully and substantially violated his probation by changing his address without prior permission, failing to report on April 5th, and failing to follow his probation officer’s instructions.

Kaduk also contends that Judge Holmes failed to comply with rule 3.700(c)(1) when she surmised what occurred during prior proceedings without reviewing the record of Kaduk’s prior probation violation hearings. Florida Rule of Criminal Procedure 3.700(c)(1) requires that a judge who did not take the plea or preside at the trial of a defendant must familiarize himself or herself with prior proceedings before making sentencing decisions. However, while rule 3.700(c) applies to initial sentencing hearings, it does not extend to violation of probation proceedings. See, e.g., Murphy v. State, 939 So.2d 1168 (Fla. 4th DCA 2006); Lambert v. State, 910 So.2d 890 (Fla. 1st DCA 2005). Thus, the judge who tries the violation of probation case is not a successor judge within the contemplation of the rule.

Furthermore, Judge Holmes was not relying on prior violations to determine whether Kaduk violated probation for the acts charged in the affidavit. Instead, the judge looked at the prior record of violations to determine whether Kaduk’s probation should be revoked as a result of the new violations. Upon a finding of a willful and substantial violation of probation, section 948.06, Florida Statutes, gives- the judge discretion to revoke, modify, or continue the probation, or to place the probationer into community control. Just as a trial judge considers a past criminal record in determining the appropriate sentence, so too a trial judge may consider a probationer’s past probation record in determining whether to revoke for the violation or impose some lesser sanction. We agree with Judge Holmes that Kaduk’s prior violations and the sanctions imposed can and should be considered in determining whether to revoke his probation on this fifth affidavit of violation. Certainly, the fact that Kaduk admitted violating probation three separate times in the past, for which the judge continued him on probation, would factor into a decision by the trial court on whether he should be allowed to continue on probation for his fourth violation.

Probation is a matter of grace. See Matthews v. State, 736 So.2d 72, 75 (Fla. 4th DCA 1999). As Judge Sharp noted in State v. Watson, 909 So.2d 942 (Fla. 5th DCA 2005):

Whether to modify or continue probation after a violation is a matter our statutes and rules leave up to the discretion of the judge who conducts the violation proceeding. If revoked, appellate courts give the judge’s ruling great deference, under the long-standing mantra that probation is a matter of “grace.”

Id. at 945 (footnote omitted). The court exercised its “grace” three prior times in continuing probation. This time, that “grace” ran out. We defer to the judge’s ruling.

Affirmed.

GROSS and TAYLOR, JJ., concur.

      . As Kaduk points out in his brief, counsel actually stated, “give him a shot” (emphasis added).


author: GROSS, J.

text:
    Nicolaus VON BAILLOU, Appellant, v. Jackie Lee VON BAILLOU n/k/a Jackie Lee Johnson, Appellee.
    No. 4D06-1989.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.

      Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Michael P. Walsh of Michael P. Walsh, P.A., West Palm Beach, for appellant.
    Neñ B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellee.
   GROSS, J.

The former husband appeals a final order requiring him to pay 100% of the attorney’s fees, accountant’s fees, and costs incurred by his former wife in their dissolution action. We reverse, holding that a spouse with $2.5 million in assets and monthly income of $6,177 does not have a financial need for all of her fees to be paid by the other spouse.

The 2005 final judgment of dissolution left each spouse with a $2.5 million share of marital assets. In addition, the former husband has $3.7 million in non-marital assets which generates income that he uses to pay expenses, alimony, and child support. Monthly, the former wife receives $4,000 in permanent alimony and $2,023 in child support. Excluding child support, the former wife’s net monthly income is $6,177. The former husband’s net monthly income is $15,127. The court found that the former husband was “not able to support the [former wife] in the standard of living she was accustomed to in the marriage.”

Pursuant to a temporary relief order, the former husband paid his former wife’s attorney $100,000 and her forensic accountant $40,000. In the litigation, the former wife incurred $285,619 in attorney’s fees and costs and forensic accounting fees of $96,021, for a total of $381,640. The former husband’s attorney’s fees amounted to $193,798. After an evidentiary hearing, the trial court awarded the former wife $241,640, the difference between the $381,640 incurred and the $140,000 the former husband had already paid. The order thus required the husband to pay the entire $575,438 in attorney’s fees and costs that the couple incurred in the dissolution. The court based its decision on a need/ability to pay analysis, not upon any of the other relevant considerations bearing on attorney’s fees identified in Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997).

The trial court treated the award of attorney’s fees and costs as an all or nothing proposition, an approach apparent from this rhetorical question in the order:

The next question, then, is, can [the former wife] pay her reasonable fees and costs totaling $381,640 without substantially depleting her overall equitable distribution, when those expenses are approximately 16% of her equitable distribution and her income is [$6,177 per month]? The answer is no.

Section 61.16(1) Florida Statutes (2006), provides that the court in a dissolution of marriage case “may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter....” By the vague, general requirement that a court “consider the financial resources of both parties,” the statute has vested broad discretion in the courts to develop a body of law shaping the considerations relevant to an award of Chapter 61 attorney’s fees and costs.

Construing section 61.16, the supreme court has written that the legislature gave “trial judges wide leeway to work equity in chapter 61 proceedings!,]” so that the section should “be liberally— not restrictively — construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties.” Rosen, 696 So.2d at 700; see Bane v. Bane, 775 So.2d 938, 941 (Fla. 2000). “The purpose of the section is to ensure that both parties will have a similar ability to obtain competent legal counsel.” Rosen, 696 So.2d at 699; Bane, 775 So.2d at 941.

The central inquiry under section 61.16 is whether one spouse has a need for fees and the other spouse has the ability to pay them. See Blaine v. Blaine, 869 So.2d 716, 718 (Fla. 4th DCA 2004); Bagley v. Bagley, 720 So.2d 582, 583 (Fla. 4th DCA 1998). Financial need is “the hidden notion in the statutory term ‘financial resources of both parties.’ ” Satter v. Satter, 709 So.2d 617, 619 (Fla. 4th DCA 1998). “Need” is “the necessity for some financial assistance to engage an attorney and pay attorney fees.” Id. at 618-19. If one party has no financial need for fees, the other party cannot be compelled to pay them solely because his or her sizeable assets minimize the financial strain of such a payment. Id.

Embedded in the concept of financial need is the notion that an award of fees is proper “to prevent the inequitable diminution” of a spouse’s share of an equitable distribution. Bagley, 720 So.2d at 583-84; see Hough v. Hough, 739 So.2d 654, 655 (Fla. 4th DCA 1999); Kendall v. Kendall, 677 So.2d 48, 49 (Fla. 4th DCA 1996); Margulies v. Margulies, 645 So.2d 54 (Fla. 4th DCA 1994).

What amounts to an “inequitable diminution” of a share of equitable distribution is a fact-sensitive determination. In cases where the “poorer” spouse left the marriage with a substantial equitable distribution, courts have either reversed a total or partial award of attorney’s fees or affirmed a denial of attorney’s fees.

Thus, in Satter, the former husband’s net worth was at least $13 million and the former wife’s was $1.1 million. This court reversed an award of $24,000 in attorney’s fees in a post-judgment proceeding, noting that the award constituted 2/100ths of the former wife’s net worth, so that there was no financial need for the fees under section 61.16. 709 So.2d at 618-19.

In Blaine, each spouse received $2,079,081 in equitable distribution; the husband’s income was $27,814 per month and the wife was “capable of earning between $50,000 and $90,000 a year.” 869 So.2d at 718. The husband paid $52,000 in attorney’s fees during the proceedings and the trial court denied the wife’s claim for additional attorney’s fees. We affirmed, writing that “although the former wife may have been required to liquidate some of her assets, she could have easily paid reasonable attorney’s fees without substantially depleting her overall equitable distribution.” Id.

Similar to Blaine and Satter, Morris v. Morris, 743 So.2d 81, 82 (Fla. 5th DCA 1999), is a case where the wife left the marriage with $876,000 in equitable distribution; the husband’s share was $1,206,000. The wife had about $50,000 per year in income, including permanent alimony of $45,000, while the husband had approximately $100,000 in annual income. The trial court ruled that the wife was entitled to an award of attorney’s fees. The fifth district reversed, holding that neither party had a financial need under section 61.16, since “[n]either party was left in a position where he or she could not afford his or her own attorney’s fees.” Id. at 82.

On the other side of the coin are Margulies, 645 So.2d at 54 and Reich v. Reich, 652 So.2d 1200 (Fla. 4th DCA 1995), cases where we reversed trial court decisions requiring the more impecunious spouse to pay a portion of attorney’s fees. In Mar-gulies, the husband’s annual income was $550,000. 645 So.2d at 54. The trial court required the wife to pay one-half of her attorney’s fees and costs. We reversed and remanded with the direction that the husband be responsible for the full amount of the fees and costs. Id. at 55. Two factors were crucial in Margulies. The husband was capable of paying all of the fees and costs out of current earned income “without invading any assets or even touching his investment income” while the “wife would be required to invade her capital assets, which in turn would decrease the amount of income which they would generate.” Id. at 54. Similarly, Reich was a case where the wife received $73,000 in equitable distribution and had a small income, while the husband earned $100,000 a year and had a “substantial net worth.” 652 So.2d at 1203. We reversed the requirement that the wife pay $3,000 of the $13,000 awarded in attorney’s fees. Id.

This case is similar to Satter, Blaine, and Morris. The former wife received $2.5 million in equitable distribution and $4,000 a month in permanent alimony. The husband paid the initial $140,000 in fees under the temporary relief order. Unlike the husbands in Reich and Margu-lies, the former husband is unable to pay the entire $241,640 in fees out of his current earned income. Contrary to the trial court’s apparent belief, nothing precluded the court from holding the wife responsible for a portion of her fees. With $2.5 million in assets, the former wife is able to pay some portion of her litigation fees without suffering an inequitable diminution of her assets. If a person is required to bear at least a portion of his or her attorney’s fees, that person is more likely to be a responsible, conservative consumer of legal services.

The former wife relies on Kelly v. Kelly, 925 So.2d 364 (Fla. 5th DCA 2006), but that case is distinguishable on its facts, as often happens in dissolution cases. The former husband in Kelly left the marriage with a net worth of $12,654,731; the former wife’s net worth was $1.8 million, plus $963,728.10 to be received over several years. The former husband’s monthly net income was $86,032.83; the wife’s income was something less than the $10,000 per month that “would sustain her in a proper lifestyle.” Id. at 367. The former husband paid $35,000 in temporary fees and the former wife sought an additional $88,000. As in Margulies, the husband in Kelly was well able to pay $88,000 in fees out of his monthly income, without invading capital. In requiring the husband to pay the entire $88,000, the fifth district was concerned about the level of the former wife’s lifestyle if she were required to deplete her equitable distribution. Id. at 369. Also, the court focused more on the relative financial strain of paying attorney’s fees than on the concept of financial need, an approach that this court moved away from in Satter. Finally, the court did not factor into its discussion the $963,728.10 distribution coming to the wife in the near future and failed to distinguish Morris, a case that might have allowed a different result.

We reverse the award of attorney’s fees and remand to the trial court to determine what portion of the $241,640 at issue shall be borne by the former wife.

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

      . In Rosen, the supreme court held that the "financial resources of the parties are the primary factor to be considered” in an award of attorney’s fees under section 61.16, Florida Statutes (1995). 696 So.2d at 700. The court went on to add that
      other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.

        Id.


author: PER CURIAM.

text:
    Derrick CLEMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3988.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Derrick Clemmons, South Bay, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

The trial court summarily denied appellant’s motion for postconviction relief without providing its rationale or attaching those parts of the record which conclusively refute the claims made. See Anderson v. State, 627 So.2d 1170 (Fla.1993). However, appellant’s motion did not comply with the rule requirement that the motion be under oath. See Fla. R.Crim. P. 3.850(c). While the motion itself was sworn, the facts were included in a memorandum which was not sworn. Therefore, we affirm the summary denial of the motion. Daniels v. State, 450 So.2d 601 (Fla. 4th DCA 1984). However, our affirmance is without prejudice to filing a properly sworn motion and memorandum within sixty days of this opinion.

SHAHOOD, C.J., Earner and STEVENSON, JJ., concur.


text:
    Bonnie DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6366.
    District Court of Appeal of Florida, First District.
    July 6, 2007.
    Bonnie Davis, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to this Court’s order of January 18, 2007, the appeal is hereby dismissed for lack of jurisdiction. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

DISMISSED.

BENTON, PADOVANO, and THOMAS, JJ., concur.


text:
    Robert J. FRANCOIS, Appellant, v. STATE of Florida, Hon. E. Vernon Douglas, Appellee.
    No. 1D07-0542.
    District Court of Appeal of Florida, First District.
    July 6, 2007.
    Robert J. Francois, pro se, Appellant.
    Bill McCollum, Attorney General, and Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellee’s motion to dismiss, filed on March 15, 2007, as well as the appellant’s response thereto, the Court has concluded that there is no basis for the exercise of its appellate jurisdiction. Accordingly, the motion to dismiss is granted and the appeal is hereby dismissed.

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


text:
    Horatio BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0699.
    District Court of Appeal of Florida, First District.
    July 6, 2007.
    Horatio Butler, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s October April 5, 2007, order to show cause, this appeal is hereby dismissed as untimely. See Fla. R.App. P. 9.110(b); Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999).

LEWIS, POLSTON, and ROBERTS, JJ., concur.


text:
    John G. McCLELLAN, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D07-1791.
    District Court of Appeal of Florida, First District.
    July 6, 2007.
    John G. McClellan, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED as untimely. See Fla. R.App. P. 9.100(c)(1); Arce v. Maher Guiley & Maher, P.A., 936 So.2d 682 (Fla. 5th DCA 2006) (holding that a motion for rehearing directed to a non-final order does not suspend the jurisdictional time for seeking review of the order by certiorari because rehearing is not authorized as to non-final orders).

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


text:
    Hermon PRITCHETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2141.
    District Court of Appeal of Florida, First District.
    July 6, 2007.

      Hermon Pritchett, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of May 22, 2007, we dismiss this appeal for lack of jurisdiction. See Fla. R.App. P. 9.140(b).

DISMISSED.

BENTON, PADOVANO, and THOMAS, JJ., concur.


author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. David Rosendo CASTRO-MEDINA, Appellee.
    No. 2D06-1986.
    District Court of Appeal of Florida, Second District.
    July 6, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellee.
   WHATLEY, Judge.

The State of Florida appeals an order granting David Rosendo Castro-Medina’s motion to suppress. Castro-Medina was charged with possession of cocaine and sale of cocaine. The trial court suppressed cocaine found on Castro-Medina’s person after finding that Castro-Medina’s consent to search was not voluntary because he did not understand English. We conclude that police had probable cause to arrest Castro-Medina, and therefore, his consent to search was not required.

At the hearing on the motion to suppress, Sergeant William Rowe testified that he had seven years of experience in his position with the Dade City Police Department. He had received training in narcotics and he was in charge of the department’s street narcotics apprehension program. On the night of the arrest, he observed Castro-Medina talking with another man in front of a dance club. Sergeant Rowe observed the man give Castro-Medina money and thereafter Castro-Medina gave the man a plastic baggy containing a white substance. This second man was later identified as Adrian Aboytes. When Aboytes walked away, police stopped him and found cocaine in his possession. Sergeant Rowe testified that the area where Castro-Medina was standing was very well-lighted and the white substance in the baggie appeared to be cocaine. In Sergeant Rowe’s opinion, Castro-Medina appeared to be selling the narcotics.

Thereafter, Officer Justin Frum approached Castro-Medina and asked him what was going on, and Castro-Medina explained that he was just hanging out in his vehicle. After a brief conversation, Officer Frum told Castro-Medina why he was making contact. According to Officer Frum, Castro-Medina denied selling cocaine, got out of his vehicle, and told the officer he could search the vehicle. Officer Frum also testified that Castro-Medina gave him permission to search his person.

However, Castro-Medina’s girlfriend testified at the suppression hearing that Castro-Medina did not speak English. The trial court found her to be credible and consequently found that Castro-Medina’s acquiescence to be searched was not voluntary because he did not understand English.

We conclude that the officers had probable cause to arrest Castro-Medina after observing his hand-to-hand transaction with Aboytes. “Probable cause to arrest exists when the totality of the facts and circumstances within the officer’s knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it.” Revels v. State, 666 So.2d 213, 215 (Fla. 2d DCA 1995). In Revels, this court found that there was probable cause to arrest the appellant when he was in an area where cocaine was known to have been sold, two experienced narcotics officers observed two hand-to-hand transactions in which money was exchanged for an unidentified object at that location, and within ten minutes of these events the appellant gave money to the man who had conducted the previous two transactions in exchange for a small object. Id. Officers could not identify the small object exchanged in the transaction. Id.

In Revels, this court held that the totality of the facts and circumstances would cause a reasonable person to believe that a drug offense had been committed and that the appellant was the one who committed the offense. Id. This court noted that the officers’ observation of the exchange of money was critical because in such circumstances an exchange of money is unlikely to be an exchange for a small object other than crack cocaine. Id.

In the present case, unlike Revels, there was no testimony regarding the history of the location or recent events at that location. However, the lack of these two factors is not fatal where Sergeant Rowe observed Aboytes give Castro-Medina money in exchange for a plastic baggy containing a white substance, which Sergeant Rowe testified- appeared to be cocaine. This court has held that police have probable cause to arrest a suspect when they observe a bag containing what appears to be cocaine on their person. State v. James, 693 So.2d 1086, 1087-88 (Fla. 2d DCA 1997) (holding that police had probable cause to arrest appellee after they saw a plastic bag with a white powdery substance in his mouth); Houston v. State, 925 So.2d 404, 408 (Fla. 5th DCA 2006) (determining that there was probable cause to arrest appellant after observing white powder in a folded ten-dollar bill in one hand and a plastic baggie in the other hand); Curtis v. State, 748 So.2d 370, 372 (Fla. 4th DCA 2000) (concluding that police had probable cause to arrest appellant after observing a crack cocaine rock inside his mouth, even though officer testified that object could have been something else but such was “highly' unlikely”). Therefore, the police had probable cause to arrest Castro-Medina after observing the hand-to-hand exchange of money and cocaine.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

CASANUEVA, J., Concurs.

FULMER, J., Concurs in result only.

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B).

      . Both Sergeant Rowe and Officer Frum testified that Castro-Medina spoke to them in English.