author: McMILLAN, Presiding Judge.

text:
    Daniel Olin SMITHERMAN v. STATE of Alabama.
    CR-05-1104.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.

      Robert A. Ratliff, Mobile, for appellant.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Daniel Olin Smitherman, appeals the trial court’s revocation of his probation in four cases. On February 1, 2002, Smitherman pleaded guilty to attempted possession or receipt of a controlled substance (CC-01-3351, “case 1”). The trial court sentenced him to five years’ imprisonment; that sentence was split, and he was ordered to serve six months of the sentence in a jail-like facility and the balance was suspended, followed by five years’ probation. The court also gave Smitherman credit for one year and 12 days he had spent in jail.

On August 30, 2002, Smitherman pleaded guilty to three additional offenses: second-degree theft of property (CC-02-1736, “case 2”), third-degree burglary (CC-02-1737, “case 3”), and second-degree theft of property (CC-02-1739, “ease 4”). The trial court sentenced him to 10 years’ imprisonment for each conviction; these sentences were also split, and he was ordered to serve three years to be served in a jail-like facility. The court suspended the custodial portion of each sentence for five years, during which time Smitherman was to be on formal probation and after which, if he abided by the terms of probation, the custodial portion would be suspended for two additional years of probation and then suspended entirely. On March 31, 2005, the court reconsidered Smitherman’s sentences in cases 2, 3, and 4. The court then amended the split portion of the sentences to “time served in jail” and extended Smitherman’s probation three years from the date of the amendment.

On May 30, 2003, Smitherman’s probation officer filed a delinquency report in all four cases. The basis of this report is not clear because a copy of the report is not included in the record on appeal. On June 20, 2003, Smitherman confessed that the State’s proof of violation was sufficient, and the trial court revoked his probation. The court ordered that each of Smither-man’s sentences was “split to serve 18 months” in confinement and that each case was “to run concurrent.” The court credited Smitherman with two months and 24 days of jail time in case 1, with three months and 14 days of jail time in case 2, and with nine months and 10 days of jail credit in cases 3 and 4.

On November 30, 2005, Smitherman’s' probation officer filed a second delinquency report in all four cases, charging Smith-erman with committing three new offenses, with failing to report, and with failing to pay court-ordered moneys and supervision fees. On January 23, 2006, Smitherman confessed that the State’s evidence of violation was sufficient, and the court revoked his probation in all four cases. The court ordered that Smither-man’s sentence in each case was “split to serve 3 years.” The court also gave him credit in all four cases for 73 days he had spent in jail on the new offenses. The court ordered Smitherman’s sentence in case 1 “to run consecutive” with the sentence in case 2 and his sentences in cases 3 and 4 “to run concurrent” with the sentence in case 2.

I.

Smitherman contends that the trial court erred in failing to give him full credit for all of the time he has served in jail. He states that a full accounting is “unavailable” but that a full accounting should not be required for this court to find error. The State agrees that the record is unclear as to the total amount of time Smitherman has already served and as to how it was calculated. The State asks this court to remand this cause for clarification.

Section 15-22-54(d)(3), Ala.Code 1975, provides in part: “If revocation results in a sentence of confinement, credit shall be given for all time spent in custody prior to revocation.” “Credit for time served upon revocation is mandatory.” Walker v. State, 920 So.2d 592, 595 (Ala. Crim.App.2005). Therefore, on remand the trial court must address the issues of how much time Smitherman spent in custody before the present revocation and clarify how the credit for the time he served was calculated.

II.

Smitherman’s second contention is that the trial court erred in ordering periods of confinement in the present revocation that exceeded the three-year maximum authorized under § 15-18-8, Ala. Code 1975, for a split sentence. The State agrees that the total period of confinement in each of Smitherman’s cases cannot exceed three years. The State asks this court to remand the case for the entry of a new revocation order and to permit the trial court, on remand, to impose additional periods of confinement up to the statutory maximum of three years.

Smitherman was sentenced under § 15-18-8, Ala.Code 1975, the Split Sentence Act. Section 15-18-8(a)(l) provides that a defendant may be confined for a period not exceeding three years when the sentence imposed is not more than 15 years. The trial court originally ordered Smitherman to serve six months in confinement on his five-year sentence and three years in confinement on each of his 10-year sentences. If the original term of confinement is less than three years, the court has the authority, upon revocation, to add an additional period of confinement, so long as the total period of confinement does not exceed three years. See Dixon v. State, 912 So.2d 292 (Ala.Crim.App.2005)(holding that imposition of additional 24-month period on confinement after revocation was illegal to the extent that the total period of confinement exceeded 3 years).

As we have previously noted, the total time Smitherman has served in confinement is unclear. However, the addition of three years of confinement to any time served exceeds the statutory maximum of three years. After the trial court has properly calculated the jail credit to which Smitherman is entitled, the court may impose additional periods of confinement for each case so long as the total term in each case does not exceed three years.

III.

Smitherman’s third contention is that the trial court erred in modifying, in the second revocation, the manner in which his sentences were to be served. He argues that the court imposed concurrent sentences in the first revocation hearing and, he says, the court could not revisit that decision in the second proceeding. The State, citing Phillips v. State, 932 So.2d 165 (Ala.Crim.App.2005), and Moore v. State, 814 So.2d 308 (Ala.Crim.App.2001), notes that Smitherman’s sentences, which were imposed as concurrent sentences could not be amended from concurrent to consecutive sentences.

The decisions in Phillips and Moore, however, are inapplicable here. In both of those cases, the trial court changed a sentence that was originally ordered to run concurrently to a sentence that was to run consecutively. Rule 26.12(c), Ala. R.Crim. P., allows the trial court to “at any time by a nunc pro tunc order provide that previously imposed consecutive sentences run concurrently”; however, it does not authorize the court to amend a concurrent sentence to a consecutive sentence.

The trial court’s original sentencing orders provided that Smitherman’s sentences in cases 2, 3, and 4 were to run concurrently with each other, but they contained no provision with regard to how the sentences were to be served in conjunction with the sentence in case 1. Rule 26.12(a), Ala. R.Crim. P., provides that separate sentences imposed for two or more offenses shall run consecutively unless the judge directs otherwise at the time of sentencing. Because the trial court did not specify how Smitherman’s sentences were to run, he was required to serve them consecutively.

Section 15-22-54(d)(2), Ala.Code 1975, provides that if the trial court revokes probation, it may, after a hearing, “impose the sentence that was suspended at the original hearing or any lesser sentence.” (Emphasis added.) The trial court therefore had authority, in the second revocation proceeding, to impose the consecutive sentences that were originally imposed. The court’s unsuccessful attempt at leniency in the first revocation proceeding did not affect its authority to reimpose the original sentences in a subsequent proceeding.

IV.

For the foregoing reasons, we hereby remand this case to the trial court. On remand, the trial court is instructed to set out detailed findings as to how the court calculated the time Smitherman had served in jail and as to the total amount of jail time that is to be credited in each of his cases. The trial court also is instructed to enter a new revocation order, in which the court may impose additional periods of confinement on Smitherman’s split sentences so long as the total period of confinement in each case does not exceed the three-year maximum set out in § 15-18 — 8(a)(1). A return should be filed with this court within 56 days of the release of this opinion. The return shall include a transcript of any remand proceedings conducted by the trial court.

REMANDED WITH DIRECTIONS

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . It appears from the record that Smitherman is due to have, at a minimum, the following terms of incarceration credited against his sentences: case 1: one year and 12 days plus two months and 24 days plus 73 days; case 2: three months and 14 days plus 73 days; and cases 3 and 4: nine months and 10 days plus 73 days.

      . See § 15-22—54(d)(2), Ala.Code 1975, which provides: "If the court revokes probation, it may, after a hearing, impose the sentence that was suspended at the original hearing or any lesser sentence, including any option listed in subdivision (1)”; see also § 15—22—54(d)(1)d, which permits the trial court to “[m]odify the conditions of probation or suspension of execution of sentence, which conditions may include the addition of short periods of confinement.”


source: Caselaw Access Project

author: SHAW, Judge. WISE, Judge,

license: Public Domain

text:
    Carrius Donte CULVER v. STATE of Alabama.
    CR-05-1469.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.
    Rehearing Denied Feb. 23, 2007.
    Certiorari Denied April 13, 2007 Alabama Supreme Court 1060852.
    Carrius Donte Culver, pro se.
    Troy King, atty. gen., and Madeline Hin-son Lewis, asst. atty. gen., for appellee.
   SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

WISE, J., dissents, with opinion.

WISE, Judge,

dissenting.

I respectfully dissent from the majority’s unpublished memorandum affirming the circuit court’s summary denial of Car-rius Donte Culver’s Rule 32, Ala.R.Crim. P., petition. Specifically, I disagree with the majority’s conclusion that the circuit court did not err when it denied Culver’s petition without making specific findings of fact in its order, even though it conducted an evidentiary hearing.

Following the trial court’s entry of the written orders denying Culver’s petition, Culver filed a “motion to alter, amend, or vacate judgment,” objecting to the trial court’s failure to enter a written order that made specific findings of fact relating to each material issue of fact presented. Although Culver’s motion failed to specifically request that the circuit judge enter a written order that complied with Rule 32.9(d), Ala.R.Crim.P., see Whitehead v. State, 593 So.2d 126 (Ala.Crim.App.1991), I question whether such a request was necessary in light of the Alabama Supreme Court’s decision in Ex parte Grau, 791 So.2d 345 (Ala.2000). In Grau, the circuit court conducted an evidentiary hearing on Grau’s Rule 32 petition, then denied the petition without making specific findings of fact. Grau did not request that the circuit court enter an order making specific findings of fact, as required by Whitehead v. State, supra. This Court affirmed the denial of Grau’s petition. Grau v. State (No. CR-97-2274), 768 So.2d 1021 (Ala.Crim.App.1999) (table). The Supreme Court granted Grau’s petition for a writ of certio-rari and reversed this Court’s decision, holding that it would be premature for an appellate court to review the issues without the circuit court’s first making specific findings of fact. Ex parte Grau, 791 So.2d at 346-47. Based on its holding in Ex parte Grau, the Supreme Court appeared to indicate that an appellate court should not put in the position of being the first finder of fact.

Although I do not disagree with the majority’s conclusion that remanding this case for the circuit court to enter a new order making specific findings of fact as to the claims raised would be a waste of judicial resources, the language of Rule 32.9(d), Ala.R.Crim.P., makes such action mandatory: in the event an evidentiary hearing is conducted, “[t]he court shall make specific findings of fact relating to each material issue of fact presented.” (Emphasis supplied.) Thus, we are compelled to remand this case. However, I would urge the Alabama Supreme Court to consider amending Rule 32.9(d) so that in future cases, this Court has the discretion to decide whether a remand is necessary. However, based on the current language of Rule 32.9(d), I would remand this case for the circuit court to enter a new order containing findings of fact as to each material issue of fact regarding Culver’s claims. Accordingly, I must respectfully dissent.


author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2007-01.
    No. SC07-325.
    Supreme Court of Florida.
    Aug. 30, 2007.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has filed a report proposing amendments to Standard Jury Instructions in Criminal Cases 2.4 — Similar Fact Evidence “Williams Rule”; 2.7 — Closing Argument; 3.3(f) — Aggravation of a Felony By Evidencing Prejudice; and 3.8(a)— Similar Fact Evidence “Williams Rule.” The Committee also proposes a number of new instructions, including 8.18 — Violation of Domestic Violence Injunction; 8.19— Violation of Repeat Violence Injunction; 11.11- — Lewd or Lascivious Offenses Committed Upon or in the Presence of an Elderly Person or Disabled Person; 14.5— Theft of Communication Services; 14.6— Unauthorized Possession of Communications Devices; 21.5 — Giving False Information Concerning the Commission of a Crime; 21.6 — Giving False Information Concerning the Commission of a Capital Felony; and 28.13 — Refusal to Submit to Testing. The Committee published the proposals for comment in The Florida Bar News prior to submission to the Court. We have jurisdiction. See art. V, § 2(a), Fla. Const.

Having considered the Committee’s report and the comments filed, we approve for publication and use instructions 2.4, 2.7, 3.8(a), 8.18, 8.19, 21.5, 21.6, and 28.13, as proposed by the Committee. In addition, we approve for publication and use, with the modifications discussed below, instructions 3.3(f), 11.11, 14.5, and 14.6.

First, with respect to the proposed amendment to instruction 3.3(f) — Aggravation of a Felony by Evidencing Prejudice, section 775.085, Florida Statutes (2006), Florida’s Hate Crimes Statute, provides for the reclassification of penalties for offenses committed against a victim based upon prejudice for reasons of race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age of the victim. As proposed, the amendment to instruction 3.3(f) would add, in pertinent part, the provision that the defendant’s intentional selection of the victim based on the defendant’s perception or knowledge of the victim’s identification with certain enumerated groups may be based “in whole or in part” on that perception or knowledge. The Committee proposed the quoted phrase, citing Dobbins v. State, 605 So.2d 922 (Fla. 5th DCA 1992), approved, 631 So.2d 303 (Fla.1994), a decision approved by this Court in upholding the constitutionality of section 775.085, Florida Statutes (1989). See State v. Stalder, 630 So.2d 1072, 1077 (Fla.1994). Because section 775.085 does not include the proposed language, however, we decline to add the phrase “in whole or in part” to instruction 3.3(f).

Second, for purposes of section 825.1025, Florida Statutes (2006), Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person, “Disabled adult” is defined as

a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.

§ 825.101(4), Fla. Stat. (2006). The Committee’s proposed new instruction 11.11, however, defines “Disabled adult” — to the extent a disability is the cause for the condition of physical or mental incapacity — with the term “fundamental” to modify “disability.” Accordingly, to bring instruction 11.11 into accord with section 825.101(4), we have substituted “developmental” for “fundamental.”

Finally, section 812.15, Florida Statutes (2006), pertaining to the unauthorized reception of communications services, sets out two distinct offenses: unauthorized acquisition of communication services; and unlawful possession of a communication device. See §§ 812.15(2)(a); 812.15(4). Following substantial amendments to section 812.15 by the Legislature, see ch. 2003-186, Laws of Fla., the Committee proposed two new instructions: 14.5— Theft of Communication Services, and 14.6 — Unauthorized Possession of Communications Devices. We have modified instruction 14.5 to include both the statutory definition for “Communications device,” see § 812.15(l)(e), and the degree enhancement provision in section 812.15(3)(a). We have also modified instruction 14.6 to include the definition for “Assist Others,” as was proposed by the Committee in instruction 14.5.

We hereby authorize the publication and use of the amended and new instructions as set forth in the appendix to this opinion. In doing so, we express no opinion on the correctness of those instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining, and deleted language is struck through. The instructions as set forth in the appendix shall be effective when this opinion becomes final. However, because the Court did not publish the instructions for comment prior to their authorization as modified, the Committee as well as interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

2.4 SIMILAR -FACT-EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS EVIDENCE “WILLIAMS RULE”

§ 90.404(2)(a) Fla. Stat.

To be given at the time the evidence is admitted, if requested.

The evidence you are about to receive concerning evidence of other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you for the limited purpose of proving [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident] on the part of the defendant [or] [to corroborate the testimony of (name-of-child-)] and you shall consider it only as it relates to [that] [those] issuers].

However, the defendant is not on trial for a crime, wrong, or act that is not included in the [information] [indictment].

Comment

See section 90.404(2)(b), Fla. Stat., effective July 1, 2001, in child molestation cases. The--part of the instruction that allows similar fact evidence to corroborate the testimony-of-the-victiiii-should only be given in some cases involving child victims of sexual abuse. See Heuring-v~Siater513 So.2d 122 (Fla. 1987); Saffor-Vr-Siate-Q60 So,2d 668 (Fla. 1994); State v. Rawls, 649 So-2d-1350 (Fla. 1994).

This instruction was adopted in 1981 and was amended in 4984 2000 [765 So.2d 692], and 2007.

2.7 CLOSING ARGUMENT

§ 918.19, Fla. Stat.

Both the State and the defendant have now rested their case.

The attorneys now will present their final arguments. Please remember that what the attorneys say is not evidence or your instruction on the law. However, do listen closely to their arguments. They are intended to aid you in understanding the case. Each side will have equal time, but [the Stated [the defendant] is entitled to divide this time between an opening argument and a rebuttal argument after the opponent defendant has spoken.

Comment

This instruction was approved in 1981 and amended in 2007.

3.3(f) AGGRAVATION OF A FELONY BY EVIDENCING -PREJUDICE CRIME BY SELECTING A VICTIM BASED ON PREJUDICE

§ 775.085, Fla. Stat.

The-punishment- provided by law for the -crime of (crime charged) is greater if the defendant was motivated by prejudice to commit-the crime. Therefore, ilf you find the defendant that (defendant) committed (crime charged or a lesser included crime) guilty of (crime charged) you must then consider the defendant’s alleged — motivation-in committing the crime, and you also find beyond a reasonable doubt that (defendant)

If the State has proven the crime of (er-i-me — charged-)—and.if the.State has proven beyond a reasonable doubt that (defendant-)^

1. perceived, knew, or had reasonable ground to perceive or know (victim’s) [race] [color] [ancestry] [ethnicity] [religion] [sexual orientation] [national origin] [mental disability] [physical disability] [advanced age], and
2. intentionally selected (victim) because of that perception or knowledge,

then you should find that the defendant was — motivated—by guilty of (crime charged or lesser included crime) aggravated by the intentional selection of the victim based on prejudice to commit the crime.

If you find that the state has proven the crime of defendant committed (crime charged or a lesser included crime) beyond a reasonable doubt, but has not proven-beyond a reasonable doubt that you are not convinced beyond a reasonable doubt that [he] [she] did so by intentionally selecting the victim based on the defendant was motivated by prejudice to commit the crime, then you should find the defendant guilty of only (crime charged or a lesser included crime).

Definitions. Give if applicable^

“Mental or physical disability” means that the victim suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, and has one or more physical or mental limitations that restrict the victim’s ability to perform the normal activities of daily living.

“Advanced age” means that the victim is older than 65 years of age.

Comment

This instruction is based on section 775.085, Florida Statutes (Supp.1998). Proof that the defendant intentionally selected the victim is required by the case law. See State v. Stalder, 680 So.2d 1072 (Fla.1994).

This instruction was adopted in 1997 [697 So.2d 84] and amended in 2000 [765 So.2d 692] and 2007.

3.8(a) SIMILAR FACT EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS EVIDENCE “WILLIAMS RULE”

■ § 90.404(2)(a) Fla. Stat.

To be given eftev at the close of evidence, if applicable.

The evidence which has been admitted to show similar other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you only as that evidence relates to proof of [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident] on the part of the defendant [or] [to corroborate the testimony of (name of child-) -].

Comment

See § 90.404(2)(b) Fla. Stat., effective July 1, 2001, in child molestation cases. The part of the instruction — that- allows similar — fact evidence to--corroborate the testimony of the-victim should only-be given in some-eases involving child-victims of sexual abuse..See Henring v. Stale,-SIS SoJM — 122-(-Fla.1987); ■ -Sajfor v. State, 660 So.2d-668 (Fla.1994); State-v. Rawls, 649 So.2d 1350 (Fla.1994).

This instruction was adopted in 1981 and was amended in 2000 [765 So.2d 692], and 2007.

8.18 VIOLATION OF DOMESTIC VIOLENCE INJUNCTION

f§ 741.31(4)(a), Fla. Stat. reserved]

To prove the crime of Violation o f a Domestic Violence Injunction, the State must prove the following two elements beyond a reasonable doubt:

L A temporary or final injunction f or protection against domestic violence was issued by a court against (defendant).

2. (Defendant) willfully violated the injunction by (alleged violation of section 741.31(4)(a)).

Definition.

“Willfully” means knowingly, intentionally and purposely.

Lesser Included Offenses

VIOLATION OF DOMESTIC VIOLENCE INJUNCTION — 741.31

CATEGORY CATEGORY FLA. INS. ONE TWO STAT. NO.

None

Attempt 777.04(1) 6A

Comment

This instruction was adopted in 2007.

8.19 VIOLATION OF REPEAT VIOLENCE, SEXUAL VIOLENCE, OR DATING VIOLENCE INJUNCTION

[§ 784.047, Fla. Stat. reserved]

To prove the crime of Violation o f a [Repeat] [Sexual] [Dating] Violence Injunction, the State must prove the following two elements beyond a reasonable doubt:

L An injunction for protection against [repeat] [sexual] [dating] violence was issued by a court against (defendant).

2. (Defendant) willfully violated the injunction by (alleged violation of section 784,047).

.Definition.

“Willfully” means knowingly, intentionally and purposely.

Lesser Included Offenses

VIOLATION OF REPEAT VIOLENCE. SEXUAL VIOLENCE OR DATING VIOLENCE INJUNCTION — 784.047

CATEGORY CATEGORY ONE_TWO_FLA. STAT INS. NO.

None

Attempt 777.04(1) 54

Comment

This instruction was adopted in 2007. 11.11 LEWD AND LASCIVIOUS BE-

HAVIOR LEWD OR LASCIVIOUS OFFENSES COMMITTED UPON OR IN THE PRESENCE OF AN ELDERLY PERSON OR DISABLED PERSON

[§ 798.02 reserved] § 825.1025,

Fla. Stat.

To prove the crime of [Lewd or Lascivious Battery] [Lewd or Lascivious Molestation] [Lewd or Lascivious Exhibition] upon or in the Presence of an Elderly Person or Disabled Person, the State must prove the following three elements beyond a reasonable doubt:

L (Victim) was [an elderly] [a disabled] person.

Give 2a, 2b, or 2c as applicable.

2. a. (Defendant) committed lewd and lascivious battery by encouraging, forcing, or enticing (victim) to engage in [sadomasochistic abuse] [sexual bestiality] [prostitution] [any act involving sexual activity].

b. (Defendant) committed lewd and lascivious molestation of (victim) by intentionally touching in a lewd and lascivious manner [his] [her] [breasts] [genitals] [genital area] [buttocks] [clothing covering [his] [her] [breasts] [genitals] [genital area] [buttocks] ].

c. (Defendant) committed lewd and lascivious exhibition to (victim) by [intentionally masturbating] [intentionally exposing [his] [her] genitals in a lascivious manner] [committing any other lewd or lascivious act not involving physical or sexual contact with (victim) including but not limited to [sadomasochistic abuse] [sexual bestiality] [simulated any act involving sexual activity] ].

3. (Defendant) knew or reasonably should have known that the (victim) lacked the capacity to consent or failed to give consent.

Definitions. Give as applicable.

If 2a or 2c is alleged, define the act charged from, § 817.001, Fla. Stat.

“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a develop mental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.

“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s care or protection is impaired.

“Lacks capacity to consent” means an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause, that causes an elderly person or disabled adult to lack sufficient understanding or capacity to make or communicate reasonable decisions concerning the elderly person’s or disabled adult’s person or property.

_Lesser Included Offenses_

11.14 LEWD OR LASCIVIOUS OFFENSES COMMITTED UPON OR IN THE PRESENCE OF AN ELDERLY PERSON OR DISABLED PERSON _ — 825.1025_

CATEGORY CATEGORY FLA. INS.

ONE_TWO_STAT. NO,

None_

_Attempt_777.04(1) 5.1

_Assault_784.011 8.1

_Battery_784,03 8.3

Unnatural and las-_civious act_800.02 11.8

Exposure of sexual organs_800.03_11.9

Comment

This instruction was adopted in 2007. See Jennings v. State, 920 So.2d 32 (Fla. 2nd DCA 2005).

14.5 THEFT LARCENY OF CABLE -TV COMMUNICATIONS SERVICES

§ 812.15(2)(a), Fla. Stat. i-es&rved

To prove the crime of Theft of Communications Services, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

L (Defendant) knowingly

a. intercepted, received, decrypted, disrupted, transmitted, retransmitted or acquired access to any communication service.

b. assisted [others] [another] in intercepting, receiving, decrypting, disrupting, transmitting, retransmitting or acquiring access to any cable operation or other communication service.

2. (Defendant) did not have the express authorization of the cable operator or other communications service provider to do so.

3. (Defendant) did so with the intent to defraud the cable operator or communications service provider.

If you find the defendant guilty of unlawful reception of communications service, you must further determine beyond a reasonable doubt whether the defendant has been previously convicted of unlawful reception of communications service.

If you find the defendant guilty of unlawful reception of communications service, you must further determine beyond a reasonable doubt whether the defendant acted for the purpose of direct or indirect commercial advantage or private financial gain.

No Defense. § 812.15(9), Fla. Stat.

This offense may be deemed to have been committed at any place where the defendant manufactured, developed or assembled any communications devices involved in the violation, or assists others in these acts, or any place where the communications device is sold or delivered to a purchaser or recipient.

It is not a defense that some of the acts constituting the offense occurred outside the state.

Definitions.

Should the nature of the “franchising authority” become an issue, see U.S.C. s. 522(9-10) (1992) for a definition.

“Cable Operator” means a communications service provider who provides some or all of its communications services pursuant to a “cable television franchise” issued by a “franchising authority.”

“Cable System” means any communications service network, system or facility owned or operated by a cable operator.

“Communications Device” means any type of electronic mechanism, transmission line or connections and appurtenances thereto, instrument, device, machine, equipment, or software that is capable of intercepting, transmitting, acquiring, decrypting, or receiving any communications service, or any part, accessory, or component thereof, including any computer circuit, splitter, connector, switches, transmission hardware, security module, smart card, software, computer chip, electronic mechanism, or other component, accessory, or part of any communication device which is capable of facilitating the interception, transmission, retransmission, acquisition, decryption, or reception of any communications service.

“Communications service” means any service lawfully provided for a charge or compensation by any cable system or by any radio, fiber optic, photo-optical, electromagnetic, photoelectronic, satellite, microwave, data transmission, internet-based, or wireless distribution network, system, or facility, including but not limited to, any electronic, data, video, audio, internet access, microwave, and radio communications, transmissions, signals, and service, and any such communications, transmissions, signals, and services lawfully provided for a charge or compensation, directly or indirectly by or through any of those networks, systems, or facilities.

“Communications service provider” means:

L Any person or entity owning or operating any cable system or any fiber optic, photo-optical, electromagnetic, photoelectronic, satellite, wireless, microwave, radio, data transmission, or internet-based distribution network, system, or facility.

2. Any person or entity providing any lawful communications service, whether directly or indirectly, as a reseller or licensee, by or through any such distribution network, system or facility.

Give 1 or 2 as applicable, only if lb is charged.

The term “Assist Others” includes:

L The sale, transfer, license, distribution, deployment, lease, manufacture, development, or assembly of a communication device for the purpose of facilitating the unauthorized receipt, acquisition, interception, disruption, decryption, transmission, retransmission, or access to any communications service offered by a cable operator or any other communications service provider.

2. The sale, transfer, license, distribution, deployment, lease, manufacture, development, or assembly of a communication device for the purpose of defeating or circumventing any effective technology, device, or software, or any component thereof, used by cable operator or other communications service provider to protect any communications service from unauthorized receipt, acquisition interception, disruption, decryption, transmission, retransmission.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2007.

14.6 UNAUTHORIZED POSSESSION OF COMMUNICATIONS DEVICE

§ 812.15(4)(a-c), Fla. Stat.

To prove the crime of Unauthorized Possession of a Communications Device, the State must prove the following three elements beyond a reasonable doubt:

L (Defendant) intentionally possessed a communication s device.

2. (Defendant) did not have the express authorization of the cable operator or other communications service provider to possess such a device.

Give 3a or Sb as applicable. (Defendant)

'3. (Defendant)

a. knew or had reason to know that the design of such device rendered it primarily useful to intercept, receive, decrypt, transmit, retransmit or acquire access to any cable operation or other communications service.

b. knew or had reason to know that the design of such device rendered it primarily useful for assisting others to intercept, receive, decrypt, disrupt, transmit, retransmit or acquire access to any communications service.

If you find the defendant guilty of unlawful possession of a communications device, you must determine beyond a reasonable doubt whether the defendant possessed:

Give a, b, or c as applicable.

a. Less than five communications devices.

b. Five or more communications devices but less than fifty.

c. Fifty or more communications devices.

Definitions.

Should the nature of the “franchising authority” become an issue, see Jf7 U.S.C. s. 522(9-10) (1992) for a definition.

“Cable Operator” means a communications service provider who provides some or all of its communications services pursuant to a “cable television franchise” issued by a “franchising authority.”

“Cable System” means any communications service network, system or facility owned or operated by a cable operator.

“Communications Device” means any type of electronic mechanism, transmission line or connections and appurtenances thereto, instrument, device, machine, equipment, or software that is capable of intercepting, transmitting, acquiring, decrypting, or receiving any communications service, or any part, accessory, or component thereof, including any computer circuit, splitter, connector, switches, transmission hardware, security module, smart card, software, computer chip, electronic mechanism, or other component, accessory, or part of any communication device which is capable of facilitating the interception, transmission, retransmission, acquisition, decryption, or reception of any communications service.

“Communications service” means any service lawfully provided for a charge or compensation by any cable system or by any radio, fiber optic, photo-optical, electromagnetic, photoelectronic, satellite, microwave, data transmission, internet-based, or wireless distribution network, system, or facility, including but not limited to, any electronic, data, video, audio, internet access, microwave, and radio communications, transmissions, signals, and service, and any such communications, transmissions, signals, and services lawfully provided for a charge or compensation, directly or indirectly by or through any .of those networks, systems, or facilities.

“Communications service provider” means

1. Any person or entity owning or operating any cable system or any fiber optic, photo-optical, electromagnetic, photoelectronic, satellite, wireless, microwave, radio, data transmission, or internet-based distribution network, system, or facility.

2. Any person or entity providing any lawful communications service, whether directly or indirectly, as a reseller or licensee, by or through any such distribution network, system or facility.

Give 1 or 2 as applicable, only if 3b is charged.

The term “Assist Others” includes:

L The sale, transfer, license, distribution, deployment, lease, manufacture, development, or assembly of a communication device for the purpose of facilitating the unauthorized receipt, acquisition, interception, disruption, decryption, transmission, retransmission, or accéss to any communications service offered by a cable operator or any other communications service provider.

2. The sale, transfer, license, distribution, deployment, lease, manufacture, development, or assembly of a communication device for the purpose of defeating or circumventing any effective technology, device, or software, or any component thereof, used by cable operator or other communications service provider to protect any communications service from unauthorized receipt, acquisition interception, disruption, decryption, transmission, retransmission.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2007.

21.5 GIVING FALSE INFORMATION CONCERNING THE COMMISSION OF A CRIME

§ 837.05(1), Fla. Stat.

To prove the crime of Giving False Information Concerning the Commission of a Crime, the State must prove the following five elements beyond a reasonable doubt:

L (Defendant) knowingly gave information about the alleged commission of a crime.

2. (Defendant) knew the information was false.

3. (Defendant) gave the false information to (name of law enforcement officer).

4. (Name of law enforcement officer) was a law enforcement officer.

5. (Defendant) knew that (name of law enforcement officer) was a law enforcement officer.

The court now instructs you that (crime alleged) is a crime, and that a (name the official position of law enforcement officer, such as deputy sheriff or police officer) is a law enforcement officer.

Lesser Included Offenses

No lesser included offenses have been identified for this offense. See Silvestri v. State, 332 So.2d 351, 854 (Fla. 4th DCA 1976).

Comment

See Wright v. State, 58 So.2d 1024, 1030 (Fla.1991) on how to instruct the .jury on who qualifies as a law enforcement officer. See section 843.01, Fla. Stat, for a list of law enforcement officers.

This instruction was adopted in 2007.

21,6 GIVING FALSE INFORMATION CONCERNING THE COMMISSION OF A CAPITAL FELONY

§ 837.05(2), Fla. Stat.

To prove the crime of Giving False Information Concerning the Commission of a Capital Felony, the State must prove the following six elements beyond a reasonable doubt:

L (Defendant) knowingly gave information about the alleged commission of a crime.

2. (Defendant) knew the information was false.

3. The crime alleged was a capital felony.

4. (Defendant) gave the false information to (name of the law enforcement officer).

5. (Name of law enforcement officer) was a law enforcement officer.

6. (Defendant) knew that (name of law enforcement) was a law enforcement officer.

The court now instructs you that (crime alleged) is a capital felony, and that a (name official position of law enforcement officer, such as deputy sheriff or police officer) is a law enforcement officer.

Lesser Included Offenses

GIVING FALSE INFORMATION CONCERNING THE COMMISSION OF A CAPITAL FELONY —837.05(2)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS-NO.

Giving False Information Concerning A Crime 837.05(1) 21.5

False Reports of Commissions of Crime 817.49 21.4

Comment

See Wright v. State, 586 So.2d 1024,1030 (Fla.1991) on how to instruct the jury on who qualifies as a law enforcement officer. See Florida Statute § 843.01 for a list of law enforcement officers. Attempt is not a lesser included offense. See Silvestri v. State, 332 So.2d 351, 354 (Fla. 4th DCA 1976).

This instruction was adopted in 2007.

28.13 REFUSAL TO SUBMIT TO TESTING

§ 316.1939 Fla. Stat.

To prove the crime of Refusal to Submit to Testing, the State must prove the following six elements beyond a reasonable doubt:

Give la and/or lb as applicable.

L A law enforcement officer had probable cause to believe (defendant) [drove] [was in actual physical control of] a motor vehicle in this state while

a. under the influence of [an alcoholic beverage] [ (a chemical substance listed in 877.111 Fla. Stat.) ] [ (a controlled substance listed in Chapter 893) ] to the extent (Defendant’s) normal faculties were impaired.

b. [his] [her] [breath] [blood] alcohol level was .08 or higher.

Give 2a in cases where the defendant was arrested. Give 2b in cases where the defendant appeared for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test was impractical or impossible.

2. a. The law enforcement officer arrested (defendant) for Driving Under the Influence.

b. The law enforcement officer requested a blood test.

3. (Defendant) was informed that if [he] [she] refused to submit to a [chemical] [physical] test of [his] [her] [breath] [blood] [urine], [his] [her] privilege to operate a motor vehicle would be suspended for a period of one year, or, in the case of a second or subsequent refusal, for a period of 18 months.

4. (Defendant) was informed that it is a misdemeanor to refuse to submit to a lawful test of [his] [her] [breath] [blood] [urine], if [his] [her] driving privilege had been previously suspended for a prior refusal to submit to a lawful test of his [breath] [blood] [urine].

5. (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his] [her] [breath] [blood] [urine] when requested to do so by a [law enforcement officer] [correctional officer],

6. (Defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine].

Inference.

You are permitted to conclude that (defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine] if a record from the Department of Highway Safety and Motor Vehicles shows such a suspension.

Definitions.

“Motor vehicle” means any self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal as-sistive mobility device, or moped.

“Probable cause” exists where the totality of circumstances, from the perspective of the law enforcement officer’s knowledge, training and experience, gave the officer reasonable grounds and a fair probability to believe that a crime had been committed.

Give if applicable.

“Actual physical control” means the defendant must be physically in or on the motor vehicle and have the capability to operate the motor vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2007.

      . Various grammatical and technical modifications have also been made.

      . The degree enhancement under section 812.15(3)(a) provides that ''[a]ny person who willfully violates paragraph (2)(a), paragraph (4)(a), or subsection (5) and who has been previously convicted of any such provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” Instruction 14.5 as proposed by the Committee included the degree enhancement under section 812.15(3)(b), providing that "[a]ny person who willfully and for purposes of direct or indirect commercial advantage or private financial gain violates paragraph (2)(a), paragraph (4)(a), or subsection (5) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, ors. 775.084.”

      . An original and nine paper copies of all comments must be filed with the Court on or before October 29, 2007, with a certificate of service verifying that a copy has been served on the Committee Chair, The Honorable Terry D. Terrell, c/o Les Garringer, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399-1925, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until November 19, 2007, to file a response to any comments filed by interested persons with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court’s administrative order in In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


text:
    Dwight L. BRYANT, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D06-5112.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.
    Dwight L. Bryant, pro se, Appellant.
    Kim Fluharty, General Counsel, and Connie Lynn Beach, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

Because the action of the Florida Parole Commission that was the subject of appellant’s petition for writ of mandamus occurred prior to the effective date of section 95.11(5)(f), Florida Statutes, the circuit court erred in concluding that the petition was time-barred under the statute. See Singletary v. Van Meter, 708 So.2d 266 (Fla.1998); Foley v. Morris, 339 So.2d 215 (Fla.1976). We decline the Parole Commission’s invitation to employ the “tipsy coachman” rule and affirm on grounds that appellant’s claim is nonetheless barred by the doctrine of laches. The circuit court made no factual findings concerning the equitable considerations inherent in resolving a laches claim, and it would be inappropriate for us to do so in the context of this appeal.

Accordingly, the order denying appellant’s petition for writ of mandamus is reversed and the matter is remanded for further proceedings.

REVERSED and REMANDED.

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


author: FARMER, J. STONE, J., PER CURIAM. STONE, J.,

text:
    Todd A. JAFFY, Appellant, v. Tracy L. JAFFY, Appellee.
    Nos. 4D05-3656, 4D06-2459.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Order Denying Rehearing Oct. 24, 2007.

      Denise C. Desmond of Denise C. Desmond, P.A., Lake Worth, and Jonathan S. Root of Graner Root & Heimovics, P.A., Boca Raton, for appellant.
    David K. Friedman and Annette J. Szo-rosy of Weiss, Handler, Angelos & Corn-well, P.A., Boca Raton, for appellee.
   FARMER, J.

For a marriage not longer than ten years, the trial judge awarded permanent periodic alimony to a 34-year old spouse with a college degree and no health or employment problems. We conclude that the award is an abuse of discretion. We also conclude that the record does not support the trial court’s finding as to husband’s current income. On remand the court shall make alimony rehabilitative and recalculate any periodic amount based on his current income rather than presuming an amount that might have been represented in a mortgage loan application given before the marriage fell apart.

Husband and wife had been married for just under ten years when they became estranged. They have three children, now 8, 6, and 3. He filed for dissolution of marriage. The final judgment gives her the marital home, permanent alimony, child support, and an equalization transfer of just under $93,000. Later the trial court entered an order fixing installment payments on this equalization transfer. The marital assets were thus divided equally.

As to alimony, she was 34 when this case was filed. She has a bachelor’s degree in communications from Hartford University. Before their children were born, she had been employed as an editor’s assistant, a telemarketer, an intern in film production, and a full time teacher’s assistant. She has no health or other problems inhibiting her ability to make a career for herself. Although she stayed home to care for the children, the evidence failed to show that she is incapable of becoming self-supporting. Her expert on career counseling testified, however, that she has a “very low interest and drive to work” at any occupation. Based on this testimony, the court found that “the wife’s lack of interest [in any occupation] is so deranged that she is doomed to failure.” As a result the court imputed earning ability to her at the lowest level of compensation possible.

The trial court found that the husband maintained the high standard of living of the parties. The evidence does not support this finding. In fact the evidence shows beyond quibble that to make their standard of living, the parties often required assistance from both parents. The wife’s father gave them $100,000 for the down payment on the marital home. She testified that they could not have lived on her husband’s income alone and that her parents provided much of their lifestyle. The accountants on both sides testified that the parties could not continue their marital lifestyle on his current income.

Hence the factor involving the standard of living during the marriage is of little practical value in deciding the alimony question. Nichols v. Nichols, 907 So.2d 620, 623 (Fla. 4th DCA 2005) (when the parties have lived beyond their means, standard of living during marriage not a useful guide in awarding alimony). Moreover when a high standard of living has been made possible only by contributions from parents, awarding permanent alimony fixed at that standard could have a pernicious effect. Doing so rewards extravagance and encourages lifetime profligacy while discouraging correction, legitimizes waste, and perverts the basic purpose of alimony — providing assistance for those who are unable to support themselves. Fixing alimony at a profligate standard of living is to turn alimony into a lottery. That is one reason why the standard of living during marriage is not a super factor trumping all other factors in awarding alimony. Lambert v. Lambert, 955 So.2d 35 (Fla. 3d DCA 2007); Donoff v. Donoff, 940 So.2d 1221, 1225 (Fla. 4th DCA 2006) (purpose of factor about standard of living during marriage has only limited meaning and application).

The court also erred in finding that no plan of rehabilitation is possible because of her “deranged” lack of interest in working — that any attempt to require her to work would be “doomed to failure.” That cannot possibly be a valid justification for refusing to limit alimony to rehabilitation for a spouse who has a college education and is young enough and able to become self-supporting. If it were valid, there would be no reason for any able spouse to try to become self-supporting. See Evans v. Evans, 443 So.2d 233, 235 (Fla. 1st DCA 1983) (“To award her permanent periodic alimony ... for the rest of her life would appear to impair any desire she might have to strive forward financially.”). Adopting such a rationale would turn the need factor in alimony into a desire or want test. This rationale directly conflicts with the essential purpose of alimony to those who need such support. The trial court’s reason for finding the wife in need of permanent support is therefore legally unsustainable.

We also find the facts and circumstances in this case very similar to those in several reported decisions where permanent alimony was deemed improper. In McLauchlin v. McLauchlin, 580 So.2d 812 (Fla. 2d DCA 1991), for example, the party seeking permanent alimony was in her mid-30s and, like the spouse here, had primary residential custody of three children. In affirming a denial of permanent alimony the court explained:

“Although this marriage was not a brief marriage, the wife is still young and able to find suitable employment. The relatively equal distribution of the couple’s limited assets does not create a circumstance requiring permanent alimony.” [C.O.]

580 So.2d at 813-14. Similarly, in Childers v. Childers, 640 So.2d 108, 110 (Fla. 4th DCA 1994), we held an award of permanent alimony is inappropriate where the spouse is young, educated, and comparatively healthy.

The duration of marriage being less than 10-years makes this a short term marriage. See Iribar v. Iribar, 510 So.2d 1023, 1024 (Fla. 3d DCA 1987) (10 year marriage is short term). In short term marriages where the partners are still young and able, the presumption is for rehabilitative alimony rather than permanent. Reeves v. Reeves, 821 So.2d 333, 334 (Fla. 5th DCA 2002) (holding that in case of a short term marriage, a presumption against awarding permanent alimony arises, but such presumption is rebutta-ble); Green v. Green, 672 So.2d 49, 51 (Fla. 4th DCA 1996) (“This was a short-term marriage, and generally permanent alimony is inappropriate unless a genuine inequity is created by the dissolution.”); Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988) (no error in awarding only rehabilitative alimony after 9 year marriage to 45-year old spouse who was self sufficient before marriage and there was no reason why she could not become so again); Contogeorgos v. Contogeorgos, 482 So.2d 590 (Fla. 4th DCA 1986) (holding that for 9-year marriage where wife was 29-years old and able to be self-sufficient rehabilitative alimony should have been awarded; reversing permanent periodic alimony as inappropriate); Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983), petition for review dismissed, 453 So.2d 1364 (Fla.1984) (after a 10-year marriage a 34-year-old wife should have received only rehabilitative alimony, not permanent). As such the trial court’s discretion to make alimony permanent would require factors not present in this case— i.e., the spouse is unemployable or only at severely reduced income.

Finally, the fact that his income substantially exceeds hers does not justify permanent periodic alimony. Rojas v. Rojas, 656 So.2d 563 (Fla. 3d DCA 1995) (evidence that his income was more than wife’s during her previous employment did not support award of permanent periodic alimony where wife was 35 years old, in good health, and had some job skills that could eventually enable her to become self-supporting); Hann v. Hann, 629 So.2d 918 (Fla. 2d DCA 1994) (fact that his income was more than wife’s does not justify award of permanent alimony to her where she was 40, had no health disabilities, and had education and experience to become self-supporting); Fulks v. Fulks, 558 So.2d 205 (Fla. 2d DCA 1990) (no justification for permanent periodic alimony where he had more income than wife who was 40, in good health, and had 14 years work experience); see also Wismar v. Wismar, 522 So.2d 552 (Fla. 5th DCA 1988) (award of permanent alimony in' this case, without any basis or justification in the record, except as a means to provide the wife with a higher standard of living at the husband’s expense, constitutes an abuse of discretion).

As to his income, the trial court found that before divorce proceedings were initiated he had represented his income in an application to a mortgage lender as $16,500 per month. The court thereupon used that figure as his available income for purposes of alimony and child support, treating the admission functionally as an estoppel. Yet accountants on both sides testified—after review of recent W-2s, K-ls, and the books and records of his businesses—that neither expert could substantiate that he had ever earned a gross monthly income of $16,500—and that applied to the present as well. She testified that she saw him periodically with cash, but she gave no specifics as to the source, any regular amount, or frequency of such cash. The trial court’s finding as to his income is not supported by the evidence.

The essential criterion for fixing an amount of alimony is—after a payee’s need'—-a present ability of the payor to sustain it. See § 61.08(2) Fla. Stat. (2005); Zold v. Zold, 911 So.2d 1222 (Fla.2005) (trial courts should consider only that portion of income available to spouse in calculating alimony); Olds v. Olds, 555 So.2d 883 (Fla. 2d DCA 1989) (trial court should have considered husband’s ability at present time, not what might occur in the future); Kernan v. Kernan, 495 So.2d 275 (Fla. 5th DCA 1986) (same).

There is an important reason for this. The failure to pay alimony may be coerced through the contempt powers of the court. A final judgment to pay alimony carries with it a presumption that the payor is currently able to do so. Martyak v. Martyak, 873 So.2d 405 (Fla. 4th DCA 2004) (holding that final judgment ordering $4,000 in monthly alimony created presumption in subsequent proceedings that husband had ability to pay that amount). Such coercion is absolutely dependent on the payor’s current ability to comply with the order of the court. Garo v. Garo, 347 So.2d 418 (Fla.1977) (contempt finding for nonpayment of alimony depended on specific finding of present ability to pay).

But if the court’s command is itself premised only on an ability that might have once existed in the past but has not been shown to exist currently, there is the danger that the coercive powers of the court will be exercised on one who simply lacked the ability to comply with the order when entered. See, e.g., Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997) (holding that father being held in jail based on presumption of ability to comply could not have been incarcerated for civil contempt of child support order, after failing to appear at contempt hearing, without affirmative finding based on evidence that he had present ability to pay purge amount). Hence, it is imperative that findings as to the ability to pay alimony are supported by evidence showing the payor’s present ability to comply.

Reversed and remanded with instructions.

GUNTHER, J., concurs.

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

STONE, J.,

concurring in part and dissenting in part.

I concur in the majority opinion except as to the trial court’s findings regarding the husband’s income. As to this, I cannot say there was an abuse of discretion.

ON MOTION FOR REHEARING

PER CURIAM.

Appellee/cross-appellant’s motion for rehearing is denied.

GUNTHER and FARMER, JJ., concur.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I initially concurred in part with the majority opinion because I accepted the premise that a marriage just short of ten years is a “short term” marriage. On reconsideration, I would now recognize that this marriage is a “gray area” marriage, as found by the trial court, and that, therefore, the trial court correctly recognized that there is no presumption regarding permanent alimony. See Yitzhari v. Yitzhari, 906 So.2d 1250, 1256 (Fla. 3d DCA 2005) (“A nine-year marriage has been held to fall into the ‘gray area’ in which ‘[t]here is no presumption for or against permanent alimony.’ ” (emphasis supplied; citations omitted)); Adinolfe v. Adinolfe, 718 So.2d 369, 370 (Fla. 4th DCA 1998) (nine year marriage “may very well be in the ‘gray area’ ”). In a gray area marriage, “a disparate earning capacity becomes a ‘significant factor’ in deciding whether permanent ... support is appropriate.” Nelson v. Nelson, 721 So.2d 388, 389 (Fla. 4th DCA 1998); see also Byers v. Byers, 910 So.2d 336, 343-44 (Fla. 4th DCA 2005).

Here, the husband’s expert accountant testified that the husband had a gross monthly income of $12,687, or over $150,000 per year. (T 349, 372) Thus, even if the wife worked as a gemologist, with an income comparable to retail sales, as the trial court found the wife capable of doing, it is not likely that she will ever attain a level of self-support reasonably commensurate with a standard of living of $150,000 per year.

Although I agree that the wife’s health and youth are factors to consider in weighing permanent alimony, the court also properly considered whether the wife can establish a standard of living reasonably commensurate with the standard set throughout the marriage. See Ghen v. Ghen, 575 So.2d 1342 (Fla. 4th DCA 1991).

I recognize that these parties’ standard of living may have been, to some extent, “artificially enhanced” by their parents’ contributions. Nevertheless, the trial court could consider the wife’s role as a mother and that she will likely never earn a salary which would allow her to live in accordance with the lifestyle the husband’s salary afforded them. See Byers, 910 So.2d at 343 (a party is not self-supporting, for purposes of determining whether to award permanent periodic alimony because she has the opportunity to enter the job market, without some evidence of the ability to earn a salary which would allow the party to live in accordance with the lifestyle established during the marriage). Further, where the superior earning power of one spouse is achieved during a period when the other spouse is out of the job market as a result of an agreement that the non-working spouse will care for the children, courts of this state have not hesitated to reverse awards of temporary support in lieu of permanent alimony. Id.

I would hold that this record does reflect disparate earning power of the parties such that a trial court could find it a significant factor in determining whether permanent support is appropriate. See Nelson; Byers, supra; see also Zeigler v. Zeigler, 635 So.2d 50 (Fla. 1st DCA 1994) (trial court abused its discretion in deciding to amend temporary support in lieu of permanent alimony where there was no evidence in the record that the wife would be able to support herself in a manner reasonably equal to marital standard of living and no evidence of the husband’s inability to provide some level of permanent support: wife was 35, parties had 3 minor children, and thirteen-year marriage fell into the “gray area”). I note that in Harvey v. Harvey, 596 So.2d 1251 (Fla. 4th DCA 1992), this court also upheld an award of permanent alimony in a ten-year marriage.

As indicated by my initial dissent, I would also recognize that there is record evidence supporting the trial court’s conclusion as to the husband’s income. Just two months prior to seeking this dissolution, the husband swore, under oath, to a mortgage application reflecting a higher income than he now claims from his share in three separate businesses (with respect to one of which the books were in “chaos”), and there was testimony that he brought home “cash” in addition to his stated income.

I would further recognize, on reconsideration of the record, that the trial court explicitly did not, and did not have to, accept a conclusion that the wife’s parents provided much of the parties’ lifestyle. Although the parents’ gifts (which included furniture and $100,000 used as a down payment on the parties’ home) obviously made it easier for the parties to purchase and furnish their home, the trial court could, and did, find that the parties would have been able to afford a comparable lifestyle without the parents’ gifts.

I cannot say, on the facts of this case, that a trial court could not view the totality of this record as supporting permanent alimony in doing equity and justice between the parties.


text:
    Lawrence A. DIGSBY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, and the State of Florida, Respondents.
    No. 1D06-5945.
    District Court of Appeal of Florida, First District.
    Aug. 16, 2007.
    Rehearing Denied Oct. 4, 2007.

      Lawrence A. Digsby, pro se, Petitioner.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

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

DAVIS, POLSTON, and ROBERTS, JJ., concur.


author: THOMAS, J.

text:
    Diana G. SCHWARTZ, Appellant, v. Roy I. SCHWARTZ, Appellee.
    Nos. 1D06-5799, 1D07-173.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2007.

      Paula L. Walborsky, Tallahassee, for Appellant.
    James P. Judkins and Martin Randall of Judkins, Simpson & High, Tallahassee, for Appellee.
   THOMAS, J.

Diana Schwartz (“Former Wife”) appeals the trial court’s order granting modification of the primary custody of the parties’ two children and denying her attorney’s fees. We affirm the custody modification. See Wade v. Hirschman, 903 So.2d 928 (Fla.2005). However, because the trial court abused its discretion regarding each party’s financial needs and ability to pay, we reverse the order denying Former Wife’s request for attorney’s fees.

Section 61.16, Florida Statutes (2005), provides in pertinent part:

(1) The court 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, including enforcement and modification proceedings and appeals.

This provision expressly requires the court to make findings regarding each party’s financial needs and ability to pay. Sumlar v. Sumlar, 827 So.2d 1079, 1084 (Fla. 1st DCA 2002). The purpose of the statute is “to ensure that both parties will have a similar ability to obtain competent legal counsel.” Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997) (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). The supreme court explained that “proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law.” Id. at 700. In determining whether to make such an award, the trial court is to primarily consider the relative financial resources of the parties, but may also consider any other factor necessary to provide justice and ensure equity. See id. at 700.

Here, the evidence suggests that there is a great disparity between the wealth of the two parties, as Former Husband’s net worth is well over ten times that of Former Wife. Despite this evidence, the trial court denied Former Wife’s request for attorney’s fees. The trial court found that the amount of fees charged by Former Husband’s attorney was a reasonable amount of fees to be charged to each party. Because Former Wife previously paid the majority of this amount to her attorney and has the financial ability to pay the remaining balance, the trial court found that she has no need to be awarded fees. This analysis was improper and irrelevant; accordingly, the trial court abused its discretion in denying Former Wife’s request for attorney’s fees. See Hamlin v. Hamlin, 722 So.2d 851, 852 (Fla. 1st DCA 1998) (“[Considering the vast income disparity, we question why the former husband was not required to pay all of the former wife’s fees.”).

As we stated in Hamlin, “[I]n determining a reasonable attorney’s fee, courts should consider the following factors: (1) the time and labor required, the novelty and difficulty of the issues, and the legal skill required; (2) the likelihood that the representation will preclude other employment by the lawyer; (3) the customary fee; (4) the result obtained; (5) the time limitations imposed by the client or circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyers; and (8) whether the fee is fixed or contingent.” 722 So.2d at 852 (citing Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985)). Here, there is nothing in the trial court’s order that allows us to discern whether any of these factors were considered in determining Former Wife’s “reasonable” attorney’s fee. Simply taking the amount charged by Former Husband’s attorney and determining it is a reasonable fee to be charged by Former Wife’s attorney is improper and an abuse of discretion. See Hoffay v. Hoffay, 555 So.2d 1309, 1310 (Fla. 1st DCA 1990) (holding the law is “well established that the trial court must set forth specific findings concerning the hourly rate, the number of hours reasonably expended and the appropriateness of reduction or enhancement factors.”).

On remand, the trial court must properly determine the reasonable amount of Former Wife’s attorney’s fee, using the factors outlined in Hamlin and Rowe. Once this amount is established, the trial court should then properly reexamine Former Wife’s request for attorney’s fees, paying special attention to the income disparity between the parties and any other relevant factors promulgated in Rosen.

AFFIRMED in part, REVERSED in part, REMANDED with instructions consistent with this opinion.

BENTON and PADOVANO, JJ., concur.


text:
    Benjamin MONTGOMERY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D07-3819.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2007.
    Rehearing Denied Oct. 10, 2007.
    Benjamin Montgomery, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999).

WOLF, BENTON, and HAWKES, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jamie WELLS, Appellee.
    No. 4D06-3425.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellant.
    James S. Benjamin and Peter T. Patan-zo of Benjamin & Aaronson, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Jamie Wells was charged with racing on highway under Florida Statutes section 316.191 (2005) and filed a motion to dismiss challenging the constitutionality of the statute. The trial court granted the motion and found section 316.191 unconstitutional on both vagueness and over-breadth grounds. The State appeals the trial court’s ruling. We affirm in part and reverse in part.

Wells was involved in an incident described in a Complaint Affidavit. A law enforcement officer reported witnessing Wells driving his 2000 Chevrolet Corvette at a high rate of speed. Another vehicle was following behind Wells’s vehicle at a high rate of speed. The vehicles were not driving side by side. The vehicles were traveling at a maximum speed of 130 m.p.h. in a 65 m.p.h. zone and weaving through traffic. The vehicles eventually slowed, pulled side by side, and accelerated back to 90 m.p.h. The law enforcement officer stopped Wells’s vehicle and arrested him for reckless driving and racing on highway.

Wells was subsequently charged with reckless driving and racing on highway. The racing on highway count read as follows:

Michael J. Satz, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney, charges Jamie Wells on the 6th day of October, A.D. 2005, in the County and State aforesaid, did unlawfully drive a vehicle in a race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a speed record on a highway, roadway, or parking lot, or did participate in, coordinate, facilitate, or collect moneys at any location for any such race, ride as a passenger in, or purposely cause the movement of traffic to slow or stop for, any such race, competition, contest, test, or exhibition, to-wit: the defendant was driving at a high rate of speed side by side with another vehicle, contrary to F.S. 316.191(2)(a).

Wells filed a Motion to Dismiss and to Declare Fla. Stat. 316.191 Unconstitutional. In the motion, Wells contended that the racing on highway charge should be dismissed because section 316.191 was unconstitutional on three bases. First, Wells asserted that section 316.191 was void for vagueness, specifically alleging that the term “race” was constitutionally infirm based on its definition which included the vague terms “outgain and outdistance” that could encompass entirely lawful conduct. Second, Wells contended that section 316.191 was overbroad for encompassing constitutionally-protected conduct. Third, Wells claimed that the vagueness and overbreadth of section 316.191 would result in arbitrary and capricious enforcement.

The trial court held a hearing on Wells’s motion to dismiss. Defense counsel contended that section 316.191 was unconstitutional as applied to Wells based on vagueness and overbreadth. The trial court agreed with Wells’s argument and stated: “All right. You 'guys can get together later and have a coffee, but right now I agree with you. I think it’s over-broad, vague, and ambiguous; and, as written, anybody that accelerates from a light or to change lanes or to pass somebody could be violating the statute.”

Following the hearing, the trial court entered an order granting Wells’s motion to dismiss on grounds of the unconstitutionality of section 316.191. The trial court wrote:

On Thursday July 27, 2006, this Court heard argument from both the Defendant and the State of Florida regarding this Defense Motion to Dismiss and Declare Fla. Stat. § 316.191 unconstitutional. After hearing said motion and considering arguments from both sides this Court does find that the defendant does have standing to raise these challenges as Fla. Stat. § 316.191 is being applied to him; that, Fla. Stat. § 316.191 on its face and as applied is unconstitutionally vague and does not give a reasonable person of ordinary intelligence fair notice of what constitutes forbidden conduct. Additionally, after hearing legal argument from both the State and the Defendant this Court finds that, Fla. Stat. § 316.191 is unconstitutionally overbroad and criminalizes otherwise innocent behavior that is constitutionally protected. This Court finds that this overbroad infirmity leads to arbitrary and capricious results in its application and enforcement by law enforcement. Therefore this Court finds Fla. Stat. § 316.191 unconstitutional facially and as applied to the defendant. Therefore, Count II of the Information is hereby dismissed.

The State appeals this order.

“ ‘A trial court decision on the constitutionality of a statute is reviewed by the de novo standard, because it presents a pure issue of-law. The appellate court is not required to defer to the judgment of the trial court.’ ” Lowe v. Broward County, 766 So.2d 1199, 1203 (Fla. 4th DCA 2000); see also Marshall v. State, 915 So.2d 264, 267 (Fla. 4th DCA 2005)(same).

“If it is reasonably possible to do so, a court is obligated to interpret statutes in such a manner as to uphold their constitutionality.” Michelson v. State, 927 So.2d 890, 892 (Fla. 4th DCA 2005); see also Dep’t of Legal Affairs v. Rogers, 329 So.2d 257, 263 (Fla.l976)(“[A]ll doubts as to the validity of a statute [should] be resolved in favor of its constitutionality.”). This is the case even when an appellate court is asked to review a trial court’s ruling regarding the constitutionality of a statute. See In re Estate of Caldwell, 247 So.2d 1, 3 (Fla.1971)(“When an appellate court has occasion to pass upon the validity of a statute after a trial court has found it to be unconstitutional, the statute is favored with a presumption of constitutionality.”). Furthermore, “an act will not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt.” Burch v. State, 558 So.2d 1, 3 (Fla.1990); see also Spanish River Resort Corp. v. Walker, 497 So.2d 1299, 1305 (Fla. 4th DCA 1986)(same).

Keeping in mind these principles, we conclude that the trial court properly found section 316.191 to be unconstitutional both facially and as applied on vagueness grounds, but that the trial court erred by finding section 316.191 unconstitutional on overbreadth grounds.

Florida Statutes section 316.191 provides:

(1) As used in this section, the term:
(a) “Conviction” means a determination of guilt that is the result of a plea or trial, regardless of whether adjudication is withheld.
(b) “Drag race” means the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit.
(c) “Racing” means the use of one or more motor vehicles in an attempt to outgain or outdistance another motor vehicle, to prevent another motor vehicle from passing, to arrive at a given destination ahead of another motor vehicle or motor vehicles, or to test the physical stamina or endurance of drivers over long-distance driving routes.
(2)(a) A person may not:
1. Drive any motor vehicle, including any motorcycle, in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration or for the purpose of making a speed record on any-highway, roadway, or parking lot;
2. In any manner participate in, coordinate, facilitate, or collect moneys at any location for any such race, competition, contest, test, or exhibition;
3. Knowingly ride as a passenger in any such race, competition, contest, test, or exhibition; or
4.Purposefully cause the movement of traffic to slow or stop for any such race, competition, contest, test, or exhibition. Any person who violates any provision of this paragraph commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Any person who violates any provision of this paragraph shall pay a fine of not less than $500 and not more than $1,000, and the department shall revoke the driver license of a person so convicted for 1 year. A hearing may be requested pursuant to s. 322.271.

We first address the trial court’s finding that section 316.191 was vague. “When construing a penal statute against an attack of vagueness, where there is doubt, the doubt should be resolved in favor of the citizen and against the state.” State v. Wershow, 343 So.2d 605, 608 (Fla.1977). Furthermore:

The requirements of due process of Article I, Section 9, Florida Constitution, and the Fifth and Fourteenth Amendments to the Constitution of the United States are not fulfilled unless the Legislature, in the promulgation of a penal statute, uses language sufficiently definite to apprise those to whom it applies what conduct on their part is prohibited. It is constitutionally impermissible for the Legislature to use such vague and broad language that a person of common intelligence must speculate about its meaning and be subjected to arrest and punishment if the guess is wrong.

Id. Overall, “[a] vague statute is one that fails to give adequate notice of what conduct is prohibited and which because of its imprecision, may also invite arbitrary and discriminatory enforcement.” Habie v. Krischer, 642 So.2d 138, 140 (Fla. 4th DCA 1994); see also Se. Fisheries Ass’n, Inc. v. Dep’t of Natural Res., 453 So.2d 1351, 1353 (Fla.1984)(same).

We conclude that the trial court did not err by finding section 316.191 vague and declaring it unconstitutional both facially and as applied to Wells’s case. By defining the term “racing” in part as the “use of one or more motor vehicles in an attempt to outgain or outdistance another motor vehicle,” the Legislature rendered the statute vague because the “outgain and outdistance”- term could encompass passing, accelerating from a stop, and countless other legal maneuvers (and illegal and otherwise proscribed maneuvers, such as speeding) which drivers employ in their daily lives. Section 316.191, by failing to include an element of competition in its out-of-the-ordinary definition of “race,” encompasses an endless range of otherwise legal conduct (primarily based on the “out-gain and outdistance” term), including passing and accelerating from a stop (as suggested by the trial court), so as to make the scope of proscribed conduct vague and the statute facially unconstitutional. See City of Madison v. Geier, 27 Wis.2d 687, 135 N.W.2d 761, 764 (1965)(“The dominant characteristic of a race is the awareness or intent of competition in respect to speed and distance to prove superiority in performance in some respect. Normally, to constitute a race there must be an acceptance or competitive response to the awareness of the challenge; such response may be the result of prearrangement or it may come into existence on the spur of the moment. There need be no prior formal or express agreement. In respect to automobiles the element of competition resulting from some understanding involving a challenge and a response may often reasonably be inferred from the speeds and the relative positions of the cars.”). Furthermore, the trial court appropriately found that the statute was vague both facially and as applied because Wells’s alleged conduct was not clearly proscribed by the statute, as it is unclear whether he was attempting to “outgain or outdistance” the other driver (or undertake any other conduct indicative of racing as defined) or. simply speeding.

We next address the trial court’s finding that section 316.191 was overbroad. The State is correct that overbreadth challenges are typically limited to statutes infringing on First Amendment rights (unlike section 316.191), see Se. Fisheries, 453 So.2d at 1353, but the overbreadth doctrine also has occasionally been applied to statutes infringing on other fundamental rights, including the right to travel, see Sabri v. United States, 541 U.S. 600, 609-610, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004). However, courts have held ■ that the right to travel does not encompass a fundamental right to drive, see Miller v. Reed, 176 F.3d 1202, 1205-1206 (9th Cir. 1999), and that driving is a privilege rather than a right, see State, Dep’t of Highway Safety & Motor Vehicles v. Degrossi, 680 So.2d 1093, 1094 (Fla. 3d DCA 1996). As such, the State’s contention that the trial court erred by declaring section 316.191 unconstitutional on overbreadth grounds is well-taken because overbreadth is not implicated where a statute does not affect a fundamental constitutional right. Consequently, although the trial court properly found section 316.191 to be facially and appliedly unconstitutional as void for vagueness, this case should also be reversed and remanded in part for the trial court to strike the overbreadth findings (and the related arbitrary and capricious enforcement findings) from its order where it erred by finding section 316.191 unconstitutional as overbroad.

In sum, because the trial court did not err by finding section 316.191 unconstitutional both facially and as applied on vagueness grounds, the trial court did not err by granting Wells’s motion to dismiss the racing on highway count with which he was charged. However, the trial court erred by finding section 316.191 unconstitutional on overbreadth grounds. As such, this case is affirmed as to vagueness and reversed and remanded as to overbreadth for the trial court to remove the over-breadth findings from its otherwise proper order finding section 316.191 unconstitutional both facially and as applied and dismissing the racing on highway charge against Wells.

Affirmed in Part; Reversed and Remanded in Part.

GUNTHER, WARNER and GROSS, JJ., concur.


text:
    Christopher IRVINE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Appellees.
    No. 3D07-1570.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Hoffman, Larin & Agnetti, P.A., and John B. Agnetti, North Miami Beach, for appellant.
    Clark Robb Mason Coulombe Buschman Cecere and James K. Clark, for appellees.
    Before COPE, RAMIREZ and SALTER, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Following the appellees’ confession of error, the circuit court’s non-final order of May 21, 2007 granting the appellees’ motion to transfer venue from Monroe County to Broward County is hereby reversed.


author: PALMER, C.J.

text:
    Rodriguez M. McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-348.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.

      Rodriguez M. McCloud, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, C.J.

Rodriguez M. McCloud (defendant) appeals the trial court’s order summarily denying his rule 3.800(a) motion to correct illegal sentence. Determining that one of the arguments raised in the defendant’s motion possesses merit, we reverse.

In 1998, the defendant was convicted of committing an armed robbery with a firearm or deadly weapon, a first degree felony. The trial court orally sentenced the defendant, as a habitual violent felony offender (HVFO), to a term of life imprisonment with a 15-year mandatory minimum. Thereafter, the trial court entered a written sentencing document which conflicted with its oral pronouncement. Specifically, the document stated that the defendant was sentenced to a term of natural life and that he was “ineligible for parole.”

The defendant filed a rule 3.800(a) motion alleging that his sentence was illegal. The trial court summarily denied the motion. This appeal followed.

The defendant argues that his written sentence is illegal because it conflicts -with the trial court’s oral pronouncement made during the sentencing hearing. We agree.

Recently, in Williams v. State, 957 So.2d 600 (Fla.2007), our Supreme Court addressed a factually similar case and concluded that a written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence:

This Court has held that a court’s oral pronouncement of a sentence controls over the written sentencing document. See Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003); Justice v. State, 674 So.2d 123, 126 (Fla.1996). When the written document results in a sentence that is more severe than the sentence announced in court, this Court has considered it a potential violation of the constitutional protection against double jeopardy. See Ashley, 850 So.2d at 1268-69; Justice, 674 So.2d at 126. In effect, under our decisions in Ashley and Justice, we have determined that a written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence. Indeed, we have restricted the authority of a trial court to enter a conflicting written sentence in this manner. State v. Jones, 753 So.2d 1276, 1277 n. 2 (Fla.2000). Accordingly, no court has the authority to enter such a sentence, since the oral pronouncement controls and constitutes the legal sentence imposed. For this reason, we agree with the decisions of the First, Second, Third, and Fifth District Courts of Appeal that a motion alleging a discrepancy between the oral and written sentences should be cognizable in a rule 3.800(a) proceeding.

Id. at 603. Applying this case law to the instant facts, we conclude that the trial court erred in summarily denying the defendant’s rule 3.800(a) motion because the defendant’s written sentence, which conflicts with the trial court’s orally pronounced sentence, is an illegal sentence.

Accordingly, we reverse the trial court’s denial of the defendant’s rule 3.800(a) motion and remand this matter with instructions for the trial court to enter a written sentence which conforms with the sentence orally pronounced by the sentencing court.

REVERSED and REMANDED with instructions.

THOMPSON and TORPY, JJ., concur.

      . See Fla.R.Crim.P. 3.800.

      . We note further that the defendant’s written sentence of life imprisonment without eligibility for parole constitutes an illegal sentence because the defendant’s crime was committed in 1997 and, at that time, the Florida Statutes only authorized parole ineligibility for defendants convicted of capital felonies. See § 775.082(1), Fla. Stat. (1997). See also Bedford v. State, 633 So.2d 13 (Fla.l994)(striking that portion of petitioner's sentence finding him ineligible for parole because, although the trial judge could impose a life sentence, the trial judge could not preclude eligibility for parole).


author: KLEIN, J.

text:
    Ruth WEISS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-2054.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Donna P. Levine of the Law Office of Donna P. Levine, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for respondent.
   KLEIN, J.

Weiss seeks a writ of certiorari to review a circuit court appellate decision. The circuit court reversed a county court order which granted Weiss’s motion to suppress. We grant the petition because the circuit court applied the wrong standard of appellate review by reweighing the evidence presented at the suppression hearing.

Weiss was observed by an officer, around 3:00 a.m., weaving from one lane to another, while traveling northbound on University Drive in Sunrise, Florida. The record does not show the crime with which Weiss was charged, but the officer stopped her because she was concerned that the driving pattern indicated the driver “could possibly be under the influence of — she could possibly be sick. You know, there were numerous other things that could be going on.”

Weiss moved to suppress on the ground that the officer had no reasonable suspicion to stop her, and the trial court granted the motion, stating that the officer did not specifically suspect DUI and noting that there was no one else on the road. The state then appealed to circuit court, which reversed, but applied the incorrect standard of review.

In its opinion, the circuit court recognized that the trial court’s ruling on a motion to suppress is presumed correct, and that reversal is authorized only if the findings are not supported by competent substantial evidence, citing State v. Johns, 920 So.2d 1156 (Fla. 2d DCA 2006). In reversing, however, the court stated that it was doing so because the traffic stop was supported by substantial competent evidence. The standard of review which should have been applied by the circuit court sitting in its appellate capacity was whether there was competent substantial evidence to support the county court’s ruling, Sunby v. State, 845 So.2d 1006 (Fla. 5th DCA 2003).

In Sunby, just as in the present case, the officer stopped the defendant for weaving or failure to maintain a single lane. The county court granted the defendant’s motion to suppress on the ground that the weaving was not sufficiently erratic to give rise to a reasonable suspicion of impairment. The circuit court reversed, and the fifth district granted certiorari because the circuit court misapplied the law in reweighing the evidence.

Weaving, or failure to maintain a single lane, may or may not establish reasonable suspicion for a traffic stop, and accordingly a trial court ruling on a motion to suppress may be subject to reversal on the ground that no competent substantial evidence supported the ruling. Sunby; Hurd v. State, 958 So.2d 600 (Fla. 4th DCA 2007); and Roberts v. State, 732 So.2d 1127 (Fla. 4th DCA 1999).

In this case it cannot be said that the finding of no reasonable suspicion was not supported by substantial competent evidence. When the circuit court found substantial competent evidence to support the stop, it applied the incorrect standard of review, and that is a departure from the essential requirements of law. Sarasota Cty. v. Kemper, 746 So.2d 539 (Fla. 2d DCA 1999); Dep’t of Highway Safety & Motor Vehicles v. Favino, 667 So.2d 305 (Fla. 1st DCA 1995). We therefore grant the petition, vacate the opinion, and remand with directions to reinstate the order of suppression.

WARNER and MAY, JJ., concur.


text:
    Andre C. SMITH, Petitioner, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Respondent.
    No. 1D07-2399.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2007.

      Andre C. Smith, pro se, Petitioner.
    Ned Luczynski, General Counsel, and Jennifer A. Tschetter, Assistant General Counsel, Department of Business and Professional Regulation, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Sullivan v. State, 954 So.2d 684 (Fla. 1st DCA 2007).

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Johnny Anthony GETTIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4188.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2007.
    Johnny Anthony Gettis, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Emery C. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4666.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2007.

      Emery C. Davis, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: KELLY, Judge.

text:
    Brian Thomas RIVIERE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3441.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.
   KELLY, Judge.

Brian Thomas Riviere appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the postconviction court’s order and remand for reconsideration of the claim as if it were filed under rule 3.850.

Riviere’s motion raised the single claim that the statute of limitations expired before the State filed charges against him. The postconviction court correctly found that Riviere’s allegation should have been raised in a rule 3.850 motion. See Fla. R.Crim. P. 3.850(a)(1); Morgan v. State, 888 So.2d 128 (Fla. 3d DCA 2004) (holding that the defendant’s claim that the statute of limitations had expired on several counts before the State filed its information was an attack on both his conviction and sentence and should be raised pursuant to rule 3.850). Nevertheless, because Riviere’s motion was properly sworn and otherwise met the requirements of rule 3.850, the postconviction court should not have denied it but rather should have treated it as a motion filed pursuant to that rule. See Snell v. State, 890 So.2d 1292 (Fla. 2d DCA 2005); Rinderer v. State, 857 So.2d 955 (Fla. 4th DCA 2003). Accordingly, we reverse the postconviction court’s order and remand for reconsideration pursuant to rule 3.850. If the court again denies the motion, it shall attach portions of the record that conclusively refute Riviere’s claim.

Reversed and remanded.

WHATLEY and VILLANTI, JJ„ Concur.


author: CASANUEVA, Judge.

text:
    Earl L. GRANT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D07-846.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.
   CASANUEVA, Judge.

Earl L. Grant, Jr., appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the post-conviction court failed to attach portions of the record conclusively refuting Mr. Grant’s claim, we reverse.

Mr. Grant alleges that he did not receive all jail credit for the time he was in the Pinellas County jail. Specifically, he alleges that he did not receive jail credit from December 2005 through June 2006, in case 06-12442. The postconviction court, relying on Whitehurst v. State, 654 So.2d 607 (Fla. 2d DCA 1995), correctly found that Mr. Grant was only entitled to credit against each sentence for time spent in jail on those charges. However, the postcon-viction court failed to attach portions of the record to conclusively refute Mr. Grant’s allegations. “The burden is on the postconviction court to attach portions of the record refuting the rule 3.800(a) claim.” Spears v. State, 920 So.2d 187 (Fla. 2d DCA 2006). Therefore, we reverse the order denying the rule 3.800(a) motion and remand for further proceedings. If the postconviction court again denies Mr. Grant’s motion, it shall attach those portions of the record that conclusively refute the claim.

Reversed and remanded.

SALCINES and STRINGER, JJ„ Concur.