author: COBB, Judge. BASCHAB, Judge,

text:
    Jeff Alexander SNOWDEN v. STATE of Alabama.
    CR-04-0975.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.

      Grant John Scott, Andalusia, for appellant.
    Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.
   COBB, Judge.

In a six-count indictment, Jeff Alexander Snowden was indicted for two counts of trafficking in methamphetamine, see § 13A-12-23K11), Ala.Code 1975; two counts of first-degree unlawful manufacture of a controlled substance (métham-phetamine), see § 13A-12-218, Ala.Code 1975; and two counts of unlawful possession of drug paraphernalia, see § 13A-12-260, Ala.Code 1975. Count I charged Snowden with trafficking in methamphetamine on June 26, 2002; count II charged him with first-degree unlawful manufacture of a controlled substance (methamphetamine) on June 26, 2002; count III charged him with unlawful possession of drug paraphernalia on June 26, 2002; count IV charged him with trafficking in methamphetamine on July 10, 2002; count V charged him with first-degree unlawful manufacture of a controlled substance (methamphetamine) on July 10, 2002; and count VI charged him with unlawful possession of drug paraphernalia on July 10, 2002. The jury found Snowden guilty of all charges. At the sentencing hearing, the trial court adjudged Snowden guilty of counts I, III, IV, and VI. It then sentenced him, as a habitual offender, to concurrent terms of life in prison on each of the trafficking convictions. See § 13A-5-9(c)(3), Ala.Code 1975. The trial court also sentenced Snowden to consecutive terms of one year in jail on the paraphernalia convictions. Finally, it imposed a $100,000 fine pursuant to § 13A-12-231(ll)b., Ala. Code 1975, for the trafficking conviction based on count I of the indictment; a $250,000 fine pursuant to § 13A-12-231(ll)c., Ala.Code 1975, for the trafficking conviction based on count IV of the indictment; a $750 fine on each of the paraphernalia convictions; and a $100 assessment to be paid into the Forensic Trust Fund. The trial court did not render judgments or impose sentences on counts II or V, which charged Snowden with unlawful manufacture of a controlled substance. The court stated that it was permanently holding those counts in abeyance because unlawful manufacture of a controlled substance was a lesser-included offense of trafficking. (R. 438-39.) Snowden filed a “Motion for Judgment of Acquittal or in the Alternative for New Trial,” which the trial court denied after conducting a hearing. This appeal follows

The State presented evidence indicating the following. On June 26, 2002, officers were dispatched to a mobile home, later identified as Snowden’s residence, in the Pigeon Creek area of Red Level following a call that a person might have died there. When the officers arrived, a man was standing outside and pointed at the open back door of the mobile home and told them that the person was inside. One of the officers testified that, when he approached the back door, he smelled a very strong sour odor, which he later learned was associated with the production of methamphetamine. The body of Ricky Bush was inside the mobile home, but no one else was inside. Because of the potential for drugs at the scene, a drug-task-force agent was notified.

Officer Paul Dean of the Andalusia Police Department testified that he was assigned to the drug task force. He stated that, on June 26, 2002, he was called to the mobile home and observed in the mobile home numerous items that are associated with a methamphetamine laboratory and detected “the odor of a methamphetamine lab coming from the residence.” (R. 175.) Officer Dean contacted other members of the drug task force to come to the scene, and he subsequently obtained a warrant to search Snowden’s mobile home.

During the search of Snowden’s mobile home, officers found numerous items and substances, both inside and outside the mobile home, that are associated with the manufacture of methamphetamine. Also, the State presented evidence indicating that officers found a black plastic box hidden under some pine straw at the edge of some woods behind the mobile home. Inside the box officers found a 20-ounce soft drink bottle that contained a red phosphorous extraction, a 2-liter Coke bottle that contained a bi-layered liquid, and two 20-ounce soft drink bottles that contained bi-layered liquids. Forensic testing indicated that the top layer of the bi-layered liquid in the 2-liter bottle contained methamphetamine and weighed 451.88 grams and that both layers of the bi-layered liquid in one of the 20-ounce bottles contained methamphetamine and weighed 220.01 grams. Finally, in the kitchen area of the mobile home, law-enforcement officers found a coffeepot that contained a small amount of bi-layered liquid and a light-bulb smoking device. Forensic testing showed that the bottom layer of the bi-layered liquid in the coffee pot contained methamphetamine and weighed 115¡97 grams and that the light-bulb smoking device contained methamphetamine. Authorities obtained an arrest warrant for Snowden based on the evidence seized at his mobile home.

Officer Dean further testified that, on July 10, 2002, he received information that Snowden was at a residence on Stewart Street in Andalusia. Officer Dean and other officers went to that residence between 3:00 a.m. and 4:00 a.m. to arrest Snowden on the warrants. When Officer Dean went to the front door and knocked, he could see inside the residence; he saw a bi-layered liquid in a container on the kitchen counter. A man later identified as Jessie Reeves walked to the side door and allowed the officer to come inside to talk to Snowden, who was in bed. Once inside the residence, Officer Dean observed several items that are associated with a methamphetamine lab in plain view. The officers took Snowden into custody, on the warrants and Officer Dean then contacted other drug-task-force members because he believed the house contained a methamphetamine lab.

Officer Mark Odom obtained a warrant to search the Stewart Street house. During the search of the house, officers found numerous items and substances that are associated with the manufacture of methamphetamine. For example, officers found containers of bi-layered liquids and cans of propane fuel. Further, on a coffee table in the living-room area, officers found a glass-tube smoking device and a single-edged razor blade on a dinner plate. Officer Dean testified that the “finished product,” methamphetamine, was also on the plate. (R. 226.) He said that the items on the plate indicated that the plate had been put in some kind of heat source to evaporate water, that the finished methamphetamine had been left on the plate, and that the razor blade would have been used to scrape the finished methamphetamine into a pile for ingesting in some smoking device. Many of the items associated with making methamphetamine were located in a black bag in the living room; also located in that bag was a copy of the search warrant and the inventory from the June 26 search of Snowden’s residence. Finally, forensic testing showed that the glass-tube smoking device contained methamphetamine and that the top layer of the bi-layered liquid in a one-gallon glass jar contained methamphetamine and weighed 1,055.60 grams.

Officer Dean testified that, while he and other officers were taking Snowden to a police car, Snowden asked to speak to Officer Dean. Officer Dean' asked him what he wanted to talk about, and Snowden told him he wanted to talk about the death of Ricky Bush in the Pigeon Creek area. Officer Dean told Snowden that he was not working that case, but that he would contact someone at the sheriffs department for Snowden to talk with. Snowden then told Officer Dean that he would speak only to Dennis Meeks, who was then the chief deputy of the Covington County Sheriffs Department. Officer Dean telephoned Meeks at his home at approximately 4:00 a.m. on July 10, 2002, to tell him that Snowden wanted to speak with him about that case. Deputy Meeks told Officer Dean that he would be in his office the following morning and that he would speak to Snowden then.

Deputy Meeks met with Snowden later that day at a location away from the jail. Snowden told Deputy Meeks that, on June 26, 2002, Joe Kervin was at his mobile home and had stated he wanted to purchase some pseudoephedrine pills to make methamphetamine. Snowden told Deputy Meeks that Kervin said he was going to get the money for the pills from Ricky Bush, but Bush did not have enough money to buy the number of pills needed. A woman named Pam Nolen was going to provide the rest of the money needed to buy the pills and, according to Snowden, Nolen gave him a ride to town to buy the pills. After purchasing the pills, Nolan and Snowden returned to the mobile home. Snowden told Deputy Meeks that events leading up to Ricky Bush’s death then took place and everyone left the residence. Finally, Snowden told Deputy Meeks that the methamphetamine-related items recovered by law-enforcement officers at the residence were not his because, when he left the residence, he took with him everything associated with a methamphetamine lab that belonged to him.

I.

Snowden argues that the trial court erred when it admitted statements he made during a custodial interrogation without having received Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), warnings. He also argues that his statements were coerced.

We note, first, that the trial court did not allow the admission of statements made by Snowden. Rather, the trial court suppressed all of Snowden’s tape-recorded statement and a majority of the untaped statement Snowden gave immediately before he gave the tape-recorded statement. Thus, much of Snowden’s argument appears to relate to portions of the statements that the trial court did, in fact, suppress. We will set forth in some detail the facts surrounding the trial court’s rulings regarding Snowden’s statements to aid in an understanding of our analysis of this issue.

Snowden filed a pro se pleading styled “Motion to Dismiss,” alleging that his due-process rights were violated when he was taken from Covington County jail and interrogated by Deputy Meeks and Officer Dean and by federal agents without having waived his Miranda rights and without his attorney being present. (C. 65.) Thereafter, defense counsel filed a motion requesting a hearing on the pro se motion and noting that the pro se filing actually constituted a motion to suppress. A hearing was held on October 23, 2003. Testimony was taken from Officer Dean and from Snowden; Deputy Meeks was not at the hearing. (R. 4-47.) Officer Dean testified that Snowden wanted to talk to him about Bush’s death; that he then contacted the deputy investigating that case; and that he did not question Snowden about the drugs found at his mobile home or at Reeves’s residence. Snowden testified that he made his statements only after Officer Dean and Deputy Meeks told him that if he did not do so, they would let Reeves “lay up there in a holding cell and die.” (R. 36.) He said Reeves was an alcoholic and a drug addict and he believed the officers’ threat, so he told them what he knew. He also testified that he told the federal agents who spoke to him when he first arrived that he wanted to see his attorney.

The trial court held that the State could not introduce in its case-in-chief any of the statements Snowden had made, but that it might be able to introduce them as impeachment evidence. (C. 148.) The State filed a motion for reconsideration, alleging that it had additional witnesses whose testimony would change the trial court’s ruling. (C. 178.) The trial court then held a hearing on the State’s motion.

At the second hearing, Agent Theron Jackson of the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) testified that in July 2002 a drug-task-force member had placed a telephone call to the Montgomery field office; the caller stated that an individual in Coving-ton County had information regarding firearms and/or explosives. Agent Jackson and another officer drove to the Covington County drug-task-force office and met with Snowden for approximately 10 minutes on July 10, 2002. He testified that they told Snowden, “We understand you have information. Tell us what you have.” (R. 55.) The officers determined that the information Snowden had was of little or no value to them. Agent Jackson testified that he did not read Snowden his Miranda rights and that the officers did not coerce him into giving a statement; Snowden did not appear to be under duress, and he did not tell Agent Jackson that he wanted to speak with a lawyer.

Dennis Meeks, Chief Deputy with the Covington County Sheriffs Department, testified that in July 2002 the death of Ricky Bush remained an open case and he was still acquiring information and attempting to learn how Bush had died. At 4:00 a.m. on July 10, 2002, Officer Dean telephoned him and told him where he was and that Jeff Snowden had information about Ricky Bush. Officer Dean also told Deputy Meeks that Snowden said he would speak only to Deputy Meeks about Bush’s death. Deputy Meeks testified that, because Snowden was already in custody, he would speak with Snowden later in the morning. Deputy Meeks testified that Snowden had informed Officer Dean that he did not want to speak about this at the jail, so Deputy Meeks arranged to have Snowden brought to a county office and from there, Deputy Meeks drove Snowden to the drug-task-force office. The ATF agents were already there when he arrived with Snowden, and they spoke with Snow-den first, but only for a few minutes. An agent came out and told Deputy Meeks that Snowden had no useful information.

Deputy Meeks and Officer Dean then spoke with Snowden. Deputy Meeks testified that, at that time, Snowden was not considered a defendant or a suspect in Bush’s death; rather, he was a witness. They spoke to him because he had said he had information about Bush’s death and because Snowden said he wanted to talk to Deputy Meeks. (R. 77-78.) Deputy Meeks said he did not make any promises or threats to Snowden. He did not read Snowden his Miranda rights. Snowden initially refused to allow the officers to audiotape his statement, but he made a statement about what he observed on the night Bush died. Deputy Meeks testified that, after Snowden gave the unrecorded statement, he then agreed to give a recorded statement. The second statement contained the same information as the unrecorded statement, Deputy Meeks said.

Deputy Meeks said that, before each statement, he told Snowden to start from the beginning and tell them what he knew about the case involving Bush. Snowden rambled and the officers let him talk and tell his story “because we were just letting him tell us what information he had.” (R. 63.) During the narrative Snowden provided about Bush’s death, Snowden made references to cooking methamphetamine, buying pills, and taking his methamphetamine supplies with him when he left the mobile home. Deputy Meeks acknowledged that, during the first, unrecorded, statement, he and Officer Dean might have asked a question or two about Bush’s death after Snowden finished telling his version of events. (R. 70-71.) The officers did not ask Snowden about the methamphetamine lab or about drugs. They were talking only about the death of Ricky Bush.

Deputy Meeks said that, when Snowden completed his first statement to them, he told them that they had an innocent man in jail and that Jessie Reeves knew nothing about the drugs found at his residence. Deputy Meeks testified that Officer Dean telephoned the jail with this information, that Reeves was released from jail, and that when Snowden learned this information, he told the officers he would give a tape-recorded statement. (R. 68.) Snow-den then repeated his statement on tape. Deputy Meeks testified that he did not bargain with Snowden or elicit a statement from him in return for Reeves’s release from jail.

Officer Dean testified that he was employed by the Andalusia Police Department and that he was assigned to the drug task force. Officer Dean stated that, when he arrested Snowden at Reeves’s residence, Snowden spontaneously told him that he wanted to talk to him about the events surrounding Ricky Bush’s death. Officer Dean told Snowden that he would contact the investigator working the case, but Snowden said he would not talk to just anyone. When Officer Dean told him that the sheriffs department was investigating the case, Snowden told him he would speak only with Dennis Meeks. Officer Dean contacted Deputy Meeks and told him that Snowden wanted to talk about Bush’s death; Deputy Meeks said he would speak with Snowden later that day. Officer Dean informed Snowden that Deputy Meeks would speak to him later. The trial court asked Officer Dean, “So the way you all left it was that he wanted to talk to Mr. Meeks and Mr. Meeks was going to do that later?” (R. 105.) Officer Dean told the court that that was accurate. He also told the court that Snowden did not indicate by words or conduct later that morning that he had changed his mind and did not want to talk to Deputy Meeks. Deputy Meeks did not meet with Snowden at the jail because Snowden had told Officer Dean that he did not want to speak about this matter at the jail and he expressed concerns about his safety if other inmates saw him talk to drug-task-force agents. Officer Dean did not question Snowden about the drugs found at the scene.

After the hearing, the trial court entered an order allowing part of Snowden’s first statement into evidence. The order states, in pertinent part:

“Two statements were taken by the aforementioned officers on July 10, 2002. The first was not recorded. The second was. With respect to the unrecorded statement, so much information as the officers can definitively identify as having been received before any questions were put by them shall be allowed in evidence in the State’s case in chief. In other words, such information appears to have been obtained in a lawful and constitutional manner. Whittle v. State, 518 So.2d 793 (Ala.Crim.App.1987). It shall thus be deemed admissible at trial if due foundation and predicate are then laid for receiving it.
“Otherwise, the Court’s original ruling on the above matters shall stand as written.”

(C. 182.)(Footnote omitted.)

At trial, the trial court admitted only the initial portions of Snowden’s unrecorded statement regarding the events of June 26, 2002. The court did not allow the tape-recorded statement into evidence. (R. 251.) During a hearing outside the presence of the jury, Officer Dean testified specifically about the portion of the statement Snowden made before he or Deputy Meeks asked Snowden any questions. Officer Dean testified that Snowden was not coerced into making the statement, that he was not threatened, and that he did not appear to be under the influence of alcohol when he made the statement. Officer Dean testified that, in the course of making the statement about Ricky Bush’s death; Snowden told him about the plan to make methamphetamine and about taking his methamphetamine lab components with him when he and the others left his residence. (R. 292.)

To the extent Snowden argues that the trial court erred when admitting his statements because they were made while he was undergoing custodial interrogation, we note again that only the initial portion of the unrecorded statement was admitted at trial. The testimony about that portion of the statement comprises only three paragraphs of the entire transcript. (R. 292.) The- entire tape-recorded statement, and the portions of the unrecorded statement that Snowden made after the officers asked follow-up questions were suppressed.

“In reviewing a trial court’s ruling on a motion to suppress, this Court reviews the trial court’s findings of fact under an abuse-of-discretion standard of review. ‘When evidence is presented ore tenus to the trial court, the court’s findings of fact based on that evidence are presumed to be correct,’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); ‘[w]e indulge a presumption that the trial court' properly ruled on the weight and probative force of the evidence,’ Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986); and we make ‘ “all the reasonable inferences and credibility choices supportive of the decision of the trial court.” ’ Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761. ‘[A]ny conflicts- in the testimony or credibility of witnesses during a suppression hearing is a matter for resolution by the trial court.... Absent a gross abuse of discretion, a trial court’s resolution of [such] conflicts] should not be reversed on appeal.’ Sheely v. State, 629 So.2d 23, 29 (Ala.Crim.App.1993).”

State v. Hargett, 935 So.2d 1200, 1203 (Ala.Crim.App.2005).

Our reading of the testimony at the suppression hearings and the trial court’s extended questioning of and comments to witnesses suggests that the trial court denied the motion to suppress only as to the initial portion of the unrecorded statement because the court determined that that portion of the statement was not the result of police interrogation. We agree.

The procedural safeguards of Miranda apply to persons subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. 1602. The Miranda Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. (footnote omitted). “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by [Miranda ]." 384 U.S. at 478, 86 S.Ct. 1602. Snowden was in custody, but he initiated the meeting with Deputy Meeks so that he could reveal what he knew about the events leading up to the death of Ricky Bush.

“ ‘ “Miranda has never been held to apply to statements voluntarily made by defendants. If a defendant spontaneously volunteers information, either before or after being given the Miranda warnings, those statements need not be suppressed.” United States v. Edwards, 885 F.2d 377, 387 (7th Cir.1989). See also Crawford v. State, 479 So.2d 1349, 1352 (Ala.Cr.App.1985) (“An unsolicited remark, not in response to any interrogation, does not fall within the Miranda rule”); United States v. Lawrence, 952 F.2d 1034, 1036 (8th Cir.[1992]) (“The protections afforded a suspect under [Miranda ] apply only when the suspect is both in custody and being interrogated. A voluntary statement made by a suspect, not in response to interrogation, is not barred by the Fifth Amendment and is admissible with or without the giving of Miranda warnings.”), cert. denied, 503 U.S. 1011, 112 S.Ct. 1777, 118 L.Ed.2d 434 (1992).
“ ‘ “Any statement given freely' and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated .... ”
‘Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). See also Britton v. State, 631 So.2d 1073, 1078 (Ala.Cr.App.1993); Williams v. State, 601 So.2d 1062, 1072 (Ala.Cr.App.1991).’
“Worthington v. State, 652 So.2d 790, 792-93 (Ala.Cr.App.1994).”

Ex parte Clark, 728 So.2d 1126, 1132 (Ala.1998)(emphasis added).

As was the case in Ex parte Clark, Snowden initiated the conversation with Officer Dean and told him that he wanted to speak about the events leading up to Ricky Bush’s death. When Officer Dean told Snowden that the sheriffs office was investigating that case, Snowden told him he would speak only to Chief Deputy Dennis Meeks. Snowden also told Officer Dean that he did not want to speak at the jail, out of fear for his safety. Deputy Meeks was contacted and agreed to speak with Snowden later that day. Snowden also told Officer Dean that he had information about explosives, so Officer Dean contacted ATF agents. Snowden was transported away from the jail and the ATF agents were waiting at the drug-task-force office to speak to him about what he knew about explosives in the area.

“[S]ince the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)(footnote omitted). When Deputy Meeks met with Snowden, he was responding to Snowden’s request to speak to him about Bush’s death. Deputy Meeks asked Snowden only what he knew about the death. Thus, the initial narrative statement Snowden made was voluntary and was not made in response to interrogation or as a result of coercion. Therefore, the statement was not within the scope of Miranda. See also Whittle v. State, 518 So.2d 793 (Ala.Crim.App.1987) (defendant’s statement to sheriff was volunteered and outside the scope of Miranda). The trial court admitted only that portion of the unrecorded statement that Snowden clearly initiated and volunteered. By suppressing the latter portion of the unrecorded statement and all of the recorded statement, after the officers had asked clarifying questions about Bush’s death, the trial court clearly protected Snowden’s constitutional rights.

The trial court here carefully considered the testimony given by Snowden and by the officers involved in the events leading up to Snowden’s statements. The court held pretrial hearings and an extensive hearing at trial out of the presence of the jury. The trial court was in a far better position to evaluate the credibility of the witnesses and to resolve the conflicts in their testimony. We find no abuse of the trial court’s discretion; the portion of Snowden’s unrecorded statement was properly admitted. Snowden is not entitled to any relief on his claim.

II.

Snowden also argues that his trial counsel rendered ineffective assistance because, he says, counsel misinterpreted the trial court’s final order regarding the admissibility of Snowden’s statements to law-enforcement officers. Specifically, he contends that trial counsel’s inability to read and understand the court’s order is prima facie showing that his counsel was not functioning as counsel that is guaranteed to him by the Sixth Amendment and that counsel’s performance was so deficient “that it essentially denied him the opportunity-to a fair trial because his entire defensive strategy and ultimately the trial was based upon the trial counsel[’]s erroneous interpretation.” (Snowden’s brief at 22.)

During the trial, the court heaid testimony outside the jury’s presence about what portion of Snowden’s unrecorded statement would be allowed into evidence. (R. 249-90.) Defense counsel alleged that, based on the trial court’s previous suppression orders, he had understood that the prosecutor would identify to him before trial any statements Snowden made before police questioning that she intended to introduce at trial. Defense counsel acknowledged that before trial he had received Snowden’s tape-recorded statement and the transcripts of the hearings and that he was aware of the substance of the unrecorded statement, but because the prosecutor had not identified to him the portions of the untaped statement that would be offered into evidence, he had been prejudiced. Defense counsel moved for a mistrial. The prosecutor noted that defense counsel had filed a motion in limine three months before trial, requesting that all of Snowden’s statements be suppressed because the State had not identified those that were made before police questioning. (C. 215.) The prosecutor stated that defense counsel’s filing of the motion in li-mine implied that he was aware that a portion of the statement was admissible. (R. 278.) The trial court stated that the content of the statements had been furnished and that, during the trial but outside the hearing of the jury, the officer had definitively identified the portion of the statement Snowden made before any questions were asked. (R. 269.) The trial court denied the motion for a mistrial. (R. 274.)

Officer Dean again testified outside the hearing of the jury and identified the portions of the unrecorded statement that Snowden made before any clarifying questions were asked. (R. 279-81.) Defense counsel again argued that that portion of the statement should have been provided to him in discovery, and he moved again for a mistrial

“on the basis that if it was so obvious that this [portion of the statement] was going to come in and I missed it, then Mr. Snowden has ineffective assistance of counsel and is entitled to somebody who is bright enough to pick up from the hearing transcript and the orders what was going on. So I move for a mistrial on that basis.”

(R. 286.)

The trial court stated that the defense had suffered no prejudice, and it denied the motion for a mistrial. Snowden raised the ineffective-assistance claim again in his motion for a new trial, again alleging that trial counsel had misinterpreted the suppression orders. (C. 287.) The trial court held two hearings on the motion for a new trial; a second hearing was held because the court wanted to hear testimony from trial counsel and from the attorney who was representing Snowden when he filed the motion to suppress. At the second hearing, trial counsel was asked if he would have tried the case differently if he had understood that a portion of the unrecorded statement would be admitted. Counsel responded, “I can’t imagine that I wouldn’t have done something differently, but as far as being able to pinpoint, that would be so speculative. I don’t know exactly what I would have done, but I can’t imagine that I would not have tried something.” (R. 481.) He testified on cross-examination that he thought he would have done “something else,” but admitted, “that’s speculative.” (R. 487-88.) On redirect examination, trial counsel again acknowledged that he did not know exactly what he would have done differently.' (R. 491.)

The trial court issued a written order denying the motion for a new trial. The trial court rejected this claim and stated, in pertinent part: “[T]he Court need not determine whether or not trial counsel’s performance was, in fact, deficient, because if it was, in this particular case, any such deficiency caused no actual prejudice to the defendant.” (C. 312.) We agree -with the trial court.

To prevail on an ineffective-assistance-of-counsel claim, Snowden was required to demonstrate both that counsel’s performance was deficient and that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland Court described the prejudice requirement by stating: “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 466 U.S. at 687, 104 S.Ct. 2052. The Court also stated, “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” 466 U.S. at 687, 104 S.Ct. 2052.

Although Snowden had the opportunity at trial and at the hearings on the motion for new trial to demonstrate how trial counsel’s allegedly deficient performance prejudiced him, he failed to do so. Trial counsel could not identify anything that he would have done differently if he had known that a portion of Snowden’s unrecorded statement was going to be admitted into evidence. Rather, he merely asserted that he would have done something differently, but acknowledged repeatedly that his answer was speculative. The trial court correctly determined that Snowden failed to establish the prejudice prong of the Strickland test. Because Snowden failed to demonstrate that he was prejudiced by his trial attorney’s misinterpretation of the trial court’s order, he was not entitled to relief under Strickland. The trial court correctly denied the motions seeking relief for alleged ineffective assistance of counsel. Snowden’s claim on appeal likewise fails, and he is entitled to no relief in this Court.

III.

The State argues that the cause should be remanded because the trial court did not enter judgments or impose sentences on two of the jury’s guilty verdicts — on Counts II and V of the indictment — charging first-degree unlawful manufacture of a controlled substance. We agree.

During the sentencing hearing, Snowden argued that first-degree unlawful manufacture of a controlled substance is a lesser-included offense of trafficking and that the jury’s verdict finding him guilty of both trafficking and unlawful manufacture violated double-jeopardy principles. The State responded that the offenses of trafficking and unlawful manufacture have different elements; specifically, for first-degree unlawful manufacture, in addition to having a laboratory, other elements are required, while “[f]or trafficking all you have to do is to be in possession of a certain amount of a controlled substance. You don’t have to have the laboratory equipment, or you don’t have to have made it yourself.” (R. 429.) The prosecutor further stated that Count II charged that a firearm was present along with the methamphetamine lab and that Count V charged that the lab was within 500 feet of a school, business, or another residence, both elements that elevate second-degree manufacture to first-degree manufacture. After considering the arguments of counsel, the trial court declined to impose judgment or sentence on the two unlawful-manufacture counts and stated:

“And analogizing to the law of burglary and — I think it’s burglary and theft. It may be burglary and receiving stolen property. If you try them for both and one of them is a lesser included offense of the other, what you are supposed to do under the caselaw is just not do anything with one of them and sentence them on the other.
“So I’m just going let Count II and Count Y hang. And if there is something wrong with my convictions on Counts I and Counts IV [trafficking], I will come back and look at them. But I’m just not going to enter any judgment or sentence right now on Counts II and Counts V because, you know, the lesser included offense statute speaks not only in terms of lesser included under the law but lesser included based on the facts. And I think [trial counsel] may have a pretty good argument.”

(R. 438-39.)(Emphasis added.)

The State contends trafficking and unlawful manufacture are distinct offenses, and that unlawful manufacture is not a lesser-included offense of trafficking. The United States Supreme Court has held that, in analyzing double jeopardy claims, “[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not .... ” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Count I of the indictment alleged that Snowden,

“on or about to-wit: June 26, 2002, did knowingly and unlawfully sell, manufacture, deliver or bring into this State of Alabama, or was knowingly and unlawfully in actual and/or constructive possession of 500 grams or more but less than (1) kilo of methamphetamine, a controlled substance, in violation of Title 13A-12-231, of the Code of Alabama, 1975, and as last amended, against the peace and dignity of the State of Alabama.”

(C. 1.) Count II of the indictment alleged that Snowden,

“on or about, to-wit: June 26, 2002, did unlawfully manufacture a controlled substance, to-wit: methamphetamine and, in conjunction with said act, did possess a firearm, to-wit: one (1) shotgun and/or a clandestine laboratory operation actually produced any amount of a specified controlled substance, to-wit: methamphetamine and/or a clandestine laboratory operation was for the production of a controlled substance listed in Schedule I or Schedule II, to-wit: methamphetamine, in violation of Title 13A-12-218 of the Code of Alabama, 1975, and as last amended against the peace and dignity of the State of Alabama.”

(C. 1.)

Count IV of the indictment alleged that Snowden,

“on or about to-wit: July 10, 2002, did knowingly and unlawfully sell, manufacture, deliver or bring into the State of Alabama, or was knowingly and unlawfully in actual and/or constructive possession of one (1) kilo or more but less than ten (10) kilos of methamphetamine, a controlled substance, in violation of Title 13A-12-231, of the Code of Alabama, 1975, and as last amended, against the peace and dignity of the State of Alabama.”

(C. 3.) Finally, Count V of the indictment alleged that Snowden,

“on or about, to-wit: July 10, 2002, did unlawfully manufacture a controlled substance, to-wit: methamphetamine, and, in conjunction with said act, a clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school, to-wit 223 Stewart Street, Andalusia, Alabama and/or a clandestine laboratory operation actually produced any amount of a specified controlled substance, to-wit: methamphetamine and/or a clandestine laboratory operation was for the production of a controlled substance listed in Schedule I or Schedule II, to-wit: methamphetamine, in violation of Title 13A-12-218 of the Code of Alabama, 1975, and as last amended against the peace and dignity of the State of Alabama.”

(C. 3.)

The State presented evidence that established the elements alleged in each indictment, and the jury found Snowden guilty of each count.

A person commits the crime of trafficking in methamphetamine when he “knowingly sells, manufactures, delivers, or brings into this state, or ... is knowingly in actual or constructive possession of, 28 grams or more of methamphetamine or any mixture containing methamphetamine.” § 13A-12-231(11), Ala.Code 1975. A person commits the crime of first-degree unlawful manufacture of a controlled substance if he “[m]anufactures a controlled substance enumerated in Schedules I to V ... [or] [possesses precursor substances as determined in Section 20-2-181, in any amount with the intent to unlawfully manufacture a controlled substance,” § 13A-12-217, and two or more of the following conditions occur in conjunction with the unlawful manufacture:

“(1) Possession of a firearm.
“(2) Use of a booby trap.
“(3) Illegal possession, transportation, or disposal of hazardous or dangerous materials or while transporting or causing to be transported materials in furtherance of a clandestine laboratory operation, there was created a substantial risk to human health or safety or a danger to the environment.
“(4) A clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school.
“(5) A clandestine laboratory operation actually produced any amount of a specified controlled substance.
“(6) A clandestine laboratory operation was for the production of controlled substances listed in Schedule I or Schedule II.
“(7) A person under the age of 17 was present during the manufacturing process.”

§ 13A-12-218, 'Ala. Code 1975.

Snowden was charged in Count II with violating § 13A-12-218(a)(l), -218(a)(5), and -218(a)(6). Snowden was charged in Count V with violating § 13A-12-218(a)(4) and -218(a)(6).

The first-degree-unlawful-manufacture statute clearly requires proof of additional facts of which the trafficking statute does not require proof. The unlawful-manufacture statute requires proof of the production or processing of the controlled substance in conjunction with at least two of seven additional factors. The first-degree trafficking statute requires proof only that the person was in possession of at least 28 grams of methamphetamine or that the person sold, manufactured, delivered, or brought at least 28 grams of methamphetamine into the State.

Furthermore, the facts as alleged in the indictment support the determination that the offenses were separate. Count II charged Snowden with the additional elements of possessing a firearm, having a clandestine lab, and actually producing an amount of methamphetamine at the clandestine lab. Count V charged Snowden with the additional elements of having a clandestine lab within 500 feet of a residence, having a clandestine lab, and producing an amount of methamphetamine at the clandestine lab.

Neither the statutory elements of trafficking in methamphetamine and the unlawful manufacture of methamphetamine nor the facts alleged in the indictment in this case support a finding that first-degree unlawful manufacture of methamphetamine is a lesser-included offense of trafficking. Therefore we find the State’s argument on this issue to be well taken.

Accordingly, we must remand this case for the trial court to enter judgments in accordance with the jury’s verdicts as to counts II and V of the indictment and to impose sentences. The trial court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the trial court’s specific, written findings of fact.

AFFIRMED IN PART AND REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and SHAW and WISE, JJ., concur.

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

BASCHAB, Judge,

concurring in part and dissenting in part.

I concur with that part of the majority opinion that affirms the appellant’s convictions for trafficking in methamphetamine and unlawful possession of drug paraphernalia. However, for the reasons set forth below, I dissent from the majority’s decision to remand this case for the trial court to enter judgments and impose sentences with regard to Counts II and V of the indictment.

In this case, the State presented evidence that, on June 26, 2002, law enforcement officers found a coffeepot in the kitchen of the appellant’s mobile home that had a bi-layered liquid that contained methamphetamine. It also presented evidence that, in a plastic box outside of the mobile home, officers found bi-layered liquids in a two-liter bottle and a twenty-ounce bottle; that each of those bi-layered liquids contained methamphetamine; and that the methamphetamine in those two bottles weighed a total of 671.89 grams. With regard to July 10, 2002, Dean testified that officers found a plate that had a razor blade, a glass smoking tube, and finished product methamphetamine on it; that those items indicated that the plate had been used to evaporate the liquid out of the methamphetamine; that the finished methamphetamine had been scraped up; and that the glass tube had been used to ingest the methamphetamine. Furthermore, officers also found a glass jug in a bag that contained a bi-layered liquid that contained 1,055.60 grams of methamphetamine.

The record on appeal does not include the parties’ opening and closing arguments. During its oral charge, the trial court instructed the jury that it could convict the appellant of trafficking in methamphetamine if it determined that the appellant had manufactured or possessed the requisite amount of methamphetamine. After an off-the-record discussion, the trial court instructed the jury on unlawful possession of a controlled substance as a lesser included offense of both trafficking charges and as a lesser included offense of both unlawful manufacture of a controlled substance charges.

Based on the record before us, this court cannot determine whether the jury found the appellant guilty of trafficking because it believed that he had manufactured the entire amount of methamphetamine that law enforcement officers discovered on June 26, 2002, and the entire amount of methamphetamine that officers discovered on July 10, 2002, or whether the jury found the appellant guilty because it believed that he had manufactured only a portion of the methamphetamine discovered in each instance, but possessed the remainder of the methamphetamine discovered in each instance.

Moreover, the trial court did not make any findings of fact regarding its decision to hold Counts II and V in abeyance. Therefore, this court cannot determine whether the trial court concluded that, based on the facts of this particular case, unlawful manufacture and trafficking constituted the same offense; whether it concluded that unlawful manufacture was a lesser included offense of trafficking under the facts of this case; or whether the trial court concluded that the State did not present sufficient evidence to support a conviction for both first-degree unlawful manufacture of a controlled substance and trafficking in methamphetamine with regard to each incident. The trial court was not required to set forth its findings regarding its decision. However, based on the unique circumstances of this case, this court cannot properly review the trial court’s decision to hold Counts II and V in abeyance without such findings. Accordingly, this court should remand this case to the trial court with instructions that that court make specific, written findings regarding the basis for its decision to hold Counts II and V in abeyance.

      . The trial court misspoke at sentencing regarding adjudicating Snowden guilty on count V. (R. 437.) The trial court on September 23, 2005, issued an order clarifying the judgment and the record, and indicating that no judgment had been entered on count V at sentencing.

      . Although this Court has not previously had the opportunity to address this issue fully, in Brown v. State, 939 So.2d 957 (Ala.Crim.App.2005), we affirmed Brown's convictions for trafficking in methamphetamine and unlawful manufacture of methamphetamine, thus implicitly holding that unlawful manufacture is not a lesser-included offense of trafficking.

       Note from the reporter of decisions: On May 11, 2007, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    Ramona Alma FIELDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3517.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2007.
    Rehearing Denied Nov. 26, 2007.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Ramona Fields timely appeals from an order that modified her probation to require electronic monitoring. We affirm.

In 1999, Fields was convicted of committing lewd and lascivious acts against a child under the age of sixteen. Fields was sentenced to a period of incarceration and designated a sexual offender. After being released from prison, Fields was charged, in March, 2006, with driving with a revoked license (habitual offender) — a third degree felony. In April, 2006, Fields pled guilty to the offense and was placed on eighteen months probation.

In June, 2006, an affidavit was filed, alleging that Fields had violated her probation. Pursuant to a plea agreement with the State, Fields admitted the probation violation. In return, the State agreed that her probation should not be revoked but rather modified so as to impose drug offender probationer conditions. On August 3, 2006, the trial court accepted the plea and modified the remainder of the term of Fields’ probation to drug offender probation. Eleven days later, the State filed a motion to impose electronic monitoring pursuant to section 948.063, Florida Statutes (2006). On September 12, 2006, over defense objection, the trial court granted the State’s motion and ordered electronic monitoring.

Fields advances two arguments on appeal. First, Fields contends that section 948.063 does not mandate electronic monitoring in this ease because she was on probation for a driving offense, not a sexu,al offense. We disagree. . Section 948.063(1) clearly provides that the trial court’s obligation to require electronic monitoring after a revocation of probation is not dependent on whether the defendant was on probation for a sexual offense or some other felony.

(1) If probation or community control for any felony offense is revoked by the court pursuant to s. 948.063(2)(e) and the offender is designated as a sexual offender pursuant to s. 943.0435 or s. 944.607 ..., for unlawful sexual activity involving a victim 15 years of age or younger and the offender is 18 years of age or older, and if the court imposes a subsequent term of supervision following the revocation of probation or community control, the court must order electronic monitoring as a condition, of the subsequent term of probation or community control.

(Emphasis added).

Section 948.063(2) governs those instances where the trial court has modified a defendant’s probation rather than revoked it. Although subsection (2) does not utilize the words “for any felony offense,” we find that the legislative intent of this subsection was to require courts to order electronic monitoring if the conditions set forth in subsection (1) have otherwise been met, and the court decides to modify, rather than revoke, a defendant’s probation. A statute must be construed in its entirety and as a whole. See Koile v. State, 934 So.2d 1226, 1233 (Fla.2006); St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 967 (Fla.2000).

Fields’ second argument is that the trial court violated the constitutional prohibition against double jeopardy by ordering electronic monitoring forty days after the initial modification of her probation. Again, we disagree.

Where a trial court fails to impose a mandatory penalty at the original sentence, double jeopardy principles are not offended where the trial court subsequently corrects the sentence by imposing the omitted mandatory sanction. Bozza v. United States, 830 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed. 818 (1947); see also Allen v. State, 853 So.2d 533, 536 (Fla. 5th DCA 2003).

The Third District Court of Appeal has recently rejected a similar double jeopardy argument. In Harroll v. State, 960 So.2d 797 (Fla. 3d DCA), rev. denied, 966 So.2d 966 (Fla.2007), the defendant had been charged with failing to re-register as a sexual offender. On July 6, 2006, the defendant pled guilty and was sentenced to two years of probation with a special condition that he continue to register as required. On August 18, 2006, the trial court imposed electronic monitoring as a mandatory condition of the defendant’s probation pursuant to section 948.30. On appeal, the Third District held that imposition of the electronic monitoring condition did not violate double jeopardy. The court noted that pursuant to Florida Rule of Criminal Procedure 3.800(c), the trial court had the authority to modify an incomplete sentence within sixty days of its imposition to include any provision of Chapter 948, which it failed to originally pronounce.

Where the defendant’s sentence is incomplete because it omits a mandatory condition of probation under chapter 948 as part of the sex-offender sentence, the trial court may properly modify the defendant’s sentence within sixty days to include the condition mandated by chapter 948.

Id. at 798; see also Kiriazes v. State, 798 So.2d 789 (Fla. 5th DCA 2001).

AFFIRMED.

GRIFFIN and THOMPSON, JJ., concur.

      . § 322.34(5), Fla. Stat. (2005).

      . Section 948.063(2) provides:
      If the probationer or offender is required to register ... as a sexual offender under s. 943.0435 or s. 944.607 for unlawful sexual activity involving a victim 15 years of age or younger and the probationer or offender is 18 years of age or older and has violated the conditions of his or her probation or community control, but the court does not revoke probation or community control, the court shall nevertheless modify the probation or community control to include electronic monitoring for any probationer or offender not then subject to electronic monitoring.


author: PER CURIAM.

text:
    Gary C. QUILLING, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2769.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2007.
    Rehearing Denied Nov. 29, 2007.
    Gary C. Quilling, Daytona Beach, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We dismiss this appeal as we lack jurisdiction. The trial court dismissed Appellant’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 without prejudice to refile a proper, concise motion. As such, the trial court’s order is a non-final, non-appealable order. Lee v. State, 939 So.2d 154 (Fla. 1st DCA 2006); Williams v. State, 884 So.2d 374 (Fla. 2d DCA 2004). We reject Appellant’s argument that his motion for rehearing was timely filed because Florida Rule of Criminal Procedure 3.850(g) does not authorize rehearing motions directed to non-final orders dismissing without prejudice rule 3.850 motions.

APPEAL DISMISSED.

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    Joseph Ellis HEIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2305.
    District Court of Appeal of Florida, Fifth District.
    Oct. 23, 2007.
    Joseph E. Height, Mayo, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Sampson v. State, 832 So.2d 251 (Fla. 5th DCA 2002).

SAWAYA, PLEUS and MONACO, JJ., concur.


text:
    William C. FRISS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1391.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2007.
    Rehearing Denied Dec. 4, 2007.
    William C. Friss, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

William C. Friss has initiated multiple, successive postconviction proceedings attacking his convictions and sentences on charges of attempted first-degree murder, solicitation to commit kidnapping, and solicitation to violate a domestic violence injunction, from Marion County case number 00-892-CF. In his last rule 3.850 motion, Friss once again raised claims which the trial court denied as successive and time-barred. We affirmed. Friss v. State, 940 So.2d 440 (Fla. 5th DCA 2006). In his newest rule 3.850 motion, Friss raises the same claims again. The trial court once again denied the motion. We once again affirm.

Additionally, we ordered Friss to show cause why he should not be denied access to this court to further attack his Marion County convictions and sentences. See State v. Spencer, 751 So.2d 47 (Fla.1999). We have carefully reviewed Friss’ response to our order, and find no merit thereto.

At this point, Friss is abusing the judicial process by his successive attacks upon these convictions and sentences. Accordingly, in order to preserve judicial resources, William C. Friss is prohibited from filing any further pro se pleadings, motions or petitions in this court relating to Marion County case number 00-892-CF. The Clerk of the Fifth District Court of Appeal is directed not to accept any further pleadings in the above-styled case that have not been reviewed and signed by an attorney who is a duly licensed member of the Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simp-kins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

GRIFFIN, TORPY and LAWSON, JJ., concur.


text:
    Ildiko DEAK, Appellant, v. Thomas DEAK, Appellee.
    No. 5D07-2941.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2007.
    Rehearing Denied Nov. 29, 2007.
    Ildiko Deak, Miskolc, Hungary, pro se appellant.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

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


author: PALMER, C.J.

text:
    SPACE SCIENCE SERVICES, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D06-4288.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.

      Carol Swanson of Law Offices of Carol Swanson, Winter Park, for Appellant.
    John D. Maher, Tallahassee, for Appel-lee.
   PALMER, C.J.

Space Science Services appeals the final order entered by the Unemployment Appeals Commission (UAC), affirming the appeals referee’s decision to award unemployment compensation benefits to Ruben Ivey. Concluding that the referee’s findings were not supported by competent substantial evidence, we reverse.

Ivey was employed by Space Science for a total of 98 days. Both Space Science and Ivey agree that Ivey voluntarily quit his job. Initially, Ivey’s request for unemployment compensation benefits was denied on the basis that his reason for quitting his job was not attributable to Space Science. Ivey appealed claiming that he left Space Science because he did not receive the raise he was entitled to receive after 90 days of employment. Following an evidentiary hearing, the appeals referee issued a decision finding that Ivey was qualified to receive unemployment compensation benefits. The decision included the following findings of fact:

The claimant worked for the employer from February 27, 2006, through June 6, 2006, as a radiographer. The claimant answered an advertisement for the position, which indicated that the position paid $10/hour. When the claimant was offered the position, he was told the position paid $9/hour. The claimant questioned this and was told that after 90 days he was guaranteed a $l/hour raise. The claimant accepted the position. After serving 90 days, he inquired as to his raise. His supervisor informed him that there was no guaranteed raise and the claimant was not currently slated for an increase. The claimant spoke to human resources who failed to resolve his issue and the resigned the position [sic].

Space Science appealed the decision to the UAC. The UAC affirmed the decision of the appeals referee, stating that the record adequately supported the referee’s findings and that the referee’s conclusions were a reasonable application of the pertinent laws to the facts of the case. Space Science appeals the decision of the UAC.

The UAC’s decision is entitled to a presumption of correctness. The appellate court reviews the UAC decision only to determine whether it is clearly erroneous or whether it is not supported by competent, substantial evidence. Tallahassee Primary Care Associates v. Florida Unemployment Appeals Com’n, 930 So.2d 824 (Fla. 1st DCA 2006). Neither the UAC nor the district court of appeal can overturn an appeals referee’s finding of fact if that finding of fact is supported by competent, substantial evidence. Robinson v. Unemployment Appeals Com’n, 899 So.2d 426 (Fla. 5th DCA 2005).

Section 443.101(l)(a) of the Florida Statutes (2004) provides:

443.101. Disqualification for benefits

An individual shall be disqualified for benefits:

(l)(a) For the week in which he or she has voluntarily left his or her work without good cause attributable to his or her employing unit or in which the individual has been discharged by his or her employing unit for misconduct connected with his or her work, based on a finding by the Agency for Workforce Innovation. As used in this paragraph, the term “work” means any work, whether full-time, part-time, or temporary.

§ 443.101(l)(a), Fla. Stat. (2004). “Good cause” is cause which would reasonably impel an average able-bodied qualified worker to give up his or her employment. Howell & O’Neal v. Florida Unemployment Appeals Com’n, 934 So.2d 570 (Fla. 1st DCA 2006). Whether an unemployment compensation claimant voluntarily left employment for good cause is a question of fact to be determined by an appeals referee. Belcher v. Unemployment Appeals Com’n, 882 So.2d 486 (Fla. 5th DCA 2004).

In this case, a review of the record indicates that the appeals referee’s finding that Ivey quit his job at Space Science based on “good cause” attributable to his employer was not supported by competent substantial evidence. Specifically, the appeals referee’s findings set forth below are not supported by competent substantial evidence as explained after each finding.

(1) The claimant worked for the employer from February 27, 2006, through June 6, 2006, as a radiographer.
This finding is not supported by competent substantial evidence. Ivey testified that he was employed as a full-time radiology technician, not as a radiographer.
(2) The claimant answered an advertisement for the position, which indicated that the position paid $10/hour.
This finding is not supported by competent substantial evidence. The only advertisement referenced or submitted into evidence by Ivey advertises positions for trainees as field inspectors for above ground storage tanks, pressure vessels, and piping. No mention is made in the advertisement of either radiology technicians or radiographers.
(3) When the claimant was offered the position, he was told the position paid $9/hour.
This finding is not supported by competent, substantial evidence. The written Labor Agreement executed by the parties and the pay records put into evidence by Ivey show that Ivey was being paid $9.50 per hour. Ivey may have testified that he only made $9.00 per hour, but his own evidence refutes his testimony.
(4) The claimant was told that after 90 days he was guaranteed a $l/hour raise. Although Ivey testified at the hearing to that effect, the written Labor Agreement entered into between the parties specifically provided that “future wage increases will be merit raises based on both behavior and performance.”
(5) After serving 90 days, he inquired as to his raise. His supervisor informed him that there was no guaranteed raise and the claimant was not currently slated for an increase.
This finding is not supported by competent, substantial evidence. Ivey never testified that he spoke to his supervisor. Instead, he testified that after 90 days, he spoke to Thomas Perez, “the quality assurance guy”, about his raise. There is no evidence that Mr. Perez was Ivey’s supervisor or had any authority to grant him a raise.
(6)The claimant spoke to human resources who failed to resolve his issue and the resigned the position [sic].
This finding is not supported by competent, substantial evidence. Ivey never testified that he spoke to anyone at human resources about his raise after the 90 day period was up. As noted above, Ivey testified that the only person he spoke to was Perez, “the quality assurance guy”, about his raise.

Accordingly, the UAC’s order affirming the appeals referee’s order is reversed.

REVERSED.

THOMPSON and SAWAYA, JJ„ concur.


text:
    LaReginald PRESSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1470.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We withdraw the prior panel decision and substitute this opinion in its place.

LaReginald Pressley challenges his conviction for lewd or lascivious molestation of his thirteen-year-old neighbor. Because we conclude that the trial court erroneously admitted the hearsay testimony of the victim’s mother, and because we are unable to conclude that this error was harmless, we reverse the conviction and remand for a new trial.

During Pressley’s jury trial, the State presented the testimony of the victim and her mother. The victim testified that on September 18, 2003, while she was walking home from school with her friends, she saw Pressley, her neighbor, standing on the side of the road by himself. Pressley asked her if her cell phone worked and she answered that it did. She gave Pressley her cell phone number and continued walking home. When she got home, Pressley called her cell phone and asked her to come over to his house. When she got to Pressley’s house, they talked briefly at the doorway. Pressley then stated that he “ha[d] been watching [her] for a long time” and pulled her into his house. She testified: “He pulled me in, closed the door, he had me against the wall. He put his tongue in my mouth, and his hands on my bottom, feeling me up.” She estimated that she was in the house about fifteen minutes before she was able to get away. She went home and called her mother at work. Although the victim testified that she was crying and felt sad, she did not tell her mother what had happened until her mother came home. The victim also testified that, after she got home following the incident, Pressley called her on her cell phone again, but she did not answer. When her mother got home, the victim told her what had happened.

The victim’s mother testified that Press-ley lived three houses down from them. She described the relationship between her family and Pressley as “[a]ssociates, friends. He lived right down the street. Every time we saw him or somebody in my family saw him, we would speak, stop and talk. He’s cut my yard.” She testified that on the day of the alleged molestation, the victim called her and told her that she had something to tell her when she got home. She described the victim as sounding “a little down.” When she got home at “5:30, 6:00,” the victim told her what had happened. Over defense counsel’s hearsay objection and in response to questioning by the prosecutor, the mother testified that the victim made the following statements:

A. She asked me what was [sic] molestation was. I gave her my definition of it, and she told me that [Pressley] had put his hands on her butt.
Q. Did she [sic] anything else about what happened?
A. She told me he grabbed her, and pulled her into the house, and he put her up against the door, and he had her caged up, and wouldn’t let her out.
Q. Did she say anything about kissing?
A. She said he put his mouth on her’s [sic], and tried to put his tongue in her mouth.

Pressley did not testify and did not call any witnesses. His defense strategy was to attack the victim’s credibility. The State introduced Pressley’s telephone records, which showed that he had called the victim’s cell phone at 4:48 and 4:57 p.m. The defense argued, based on the phone records, that the victim’s testimony was entirely incredible because she had testified that she spoke with Pressley three to five minutes the first time he called, the molestation took fifteen minutes, and he called her a second time after she returned home.

The jury returned a verdict finding Pressley guilty of lewd or lascivious molestation. His motion for new trial, based on the admission of the hearsay testimony, was denied. The trial court sentenced Pressley, as an habitual felony offender, to ten years in prison, followed by seven years of sex offender probation.

On appeal, Pressley argues that the trial court erred in allowing the victim’s mother to testify, over his hearsay objection, as to what the victim told her about what happened. He contends that the hearsay testimony improperly bolstered the victim’s credibility. The error was prejudicial, he claims, because the case hinged on the victim’s credibility. Pressley also argues that, in ruling on his motion for new trial, the court erroneously ruled that the statement was admissible as an excited utterance.- We.agree.

Section 90.803(2), Florida Statutes (2006), defines the excited utterance exception to the hearsay rule, as. follows: “A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Pressley contends that the victim’s statements to her mother did not fall within the excited utterance exception to the hearsay rule because the record establishes that the victim had time to reflect upon the events before making them. He relies on the testimony of both the victim and her mother, as well as phone records, as support. The victim testified that, after the incident, she left Pressley’s house, went home and called her mother. She told her mother that she had something to tell her when she got home. Her mother testified that she arrived home between 5:30 and 6:00 p.m. and the victim told her what happened. Pressley’s phone records, which had been admitted by the State, establish that the alleged molestation occurred no later than 4:57 p.m. Thus, according to Pressley, the victim had sufficient time for reflective thought and, therefore, the statements were not excited utterances.

Pressley relies on Hutchinson v. State, 882 So.2d 943 (Fla.2004). In that case, the defendant was accused of murdering his girlfriend and her - three children. The state called Pruitt, a friend of the girlfriend, as a witness to testify. Over a hearsay objection, Pruitt recounted a telephone conversation she had with the girlfriend on the night of the murders, wherein the girlfriend told Pruitt that she and the defendant had had a big fight. Our supreme court reversed the trial court’s determination that the testimony was admissible as an excited utterance. The supreme court explained:

While an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection. See Rogers v. State, 660 So.2d 237, 240 (Fla.1995). In this ease, the time between the startling event (the fight between [the girlfriend] and Hutchinson) and the telephone conversation is not clearly ascertainable from this record. The most that can be said is that the fight probably occurred between 7 p.m. (the approximate time of [the girlfriend’s] conversation with another friend) and 7:30 p.m. (the approximate time of [the girlfriend’s] conversation with Pruitt). Without more information, we can only speculate as to whether [the girlfriend] engaged in reflective thought. However, this was a long enough time interval to permit reflective thought. “[W]here the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.” State v. Jano, 524 So.2d 660, 661 (Fla.1988) (quoting Edward W. Cleary, McCormick on Evidence, § 297, at 856 (3d ed.1984)). There is no evidence in the record to show what occurred between the fight with Hutchinson and the phone call to Pruitt. Absent some evidence that [the girlfriend] did not engage in reflective thought, the statement to Pruitt cannot be admitted as an excited utterance.... Because the record does not describe the fight between [the girlfriend] and Hutchinson, or provide the time the fight was over, we have no evidence upon which to base a conclusion that [the girlfriend] did not engage in reflective thought. [The girlfriend’s] statements to Pruitt are not, therefore, admissible under the excited utterance exception to the hearsay rule.

Hutchinson, 882 So.2d at 951-52.

The State does not address the Hutchinson decision but, nonetheless, argues that the excited utterance exception applies to the victim’s statements to her mother. It primarily argues that the victim did not have time for reflective thought because there was only 45-60 minutes between the incident and the statements. As Hutchinson explains, however, although an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection. The burden is on the proponent of the statement to show that the .declarant did not have time to reflect. Here, once the defense raised the hearsay objection, the burden shifted to the State to show that the statement fell within the excited utterance exception. The State has failed to meet this burden. The record supports Pressley’s argument that the victim had time for reflection before telling her mother what happened. Most telling is the fact that when the victim called her mother, she did not tell her mother what happened at that time; rather, the victim told her mother she needed to speak with her when she got home. Thus, the victim made a conscious decision to refrain from saying anything until some later point, indicating that she was not “under the stress of the startling event” at that time. Further, in Hutchinson, the court found that 30 minutes was a long enough time period for reflection. Here, the victim had at least 45 minutes to reflect before making the statements. We conclude, therefore, that the State failed to meet its burden to show that the exception applied.

The State offers two alternative bases for admission of the hearsay statement, neither of which was argued to the trial court. First, the State contends that the testimony was admissible as a prior consistent statement, pursuant to section 90.801(2)(b), Florida Statutes, because the defense attempted to show that the victim was motivated by her dislike of Pressley to fabricate the molestation allegation. Second, the State argues that the common law doctrine of “first complaint” applies. It defines that doctrine as allowing the admission of a statement made to the first person a declarant comes into contact with after the event. We reject both of these alternative arguments because they are not supported by the record.

Lastly, we reject the State’s contention that the error was harmless. Pressley’s conviction was premised entirely on the credibility of the only eyewitness to the event — the victim. The disputed testimony had the effect of improperly bolstering the victim’s testimony. “ ‘If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.’ ” Essex v. State, 917 So.2d 953, 958 (Fla. 4th DCA 2005) (quoting State v. Lee, 531 So.2d 133, 136 (Fla.1988)). On the facts of this case, we are unable to say beyond a reasonable doubt that the error did not affect the jury’s verdict.

REVERSED AND REMANDED.

GRIFFIN, SAWAYA and TORPY, JJ„ concur.

      . The State does not offer any argument regarding whether this common law exception to the hearsay rule survived the adoption of the evidence code and it is not necessary that we address this issue in this case.


author: LAWSON, J. RAINWATER, T.,

text:
    STATE of Florida, Appellant, v. Michael Anthony COLBERT, Appellee.
    No. 5D07-122.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Brigid E. Collins, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellee.
   LAWSON, J.

The State appeals from Michael Anthony Colbert’s downward departure sentence pursuant to section 943.0435, Florida Statutes (2006). Finding that the State failed to preserve the issue it now raises for appellate review, we affirm.

Section 924.051(3), Florida Statutes (2006), provides that a “judgment or sentence may be reversed on appeal only when an appellate court determines after review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.” For purposes of this rule, “preserved” means “that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly appraised the trial court of the relief sought and the grounds therefore.” § 924.051(l)(b), Fla. Stat. (2006).

Consistent with this statute, the Florida Supreme Court has held that proper preservation requires the following three components:

First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”

Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (emphasis in original) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982)); see also Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992) (stating that “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal”). “The purpose of this rule is to ‘place [] the trial judge on notice that error may have been committed, and provide [ ] him an opportunity to correct it at an early stage of the proceedings.’ ” Harrell, 894 So.2d at 940 (quoting Castor v. State, 365 So.2d 701, 703 (Fla.1978)).

We have reviewed the complete record on appeal. The full extent of the prosecutor’s objection below was her statement that: “Just for the record, obviously the State objects.” It is clear from the transcript provided that some off-record discussions occurred between the parties before Colbert entered his plea, and that these discussions involved some type of factual proffer by Colbert’s attorney relating to the basis for departure found by the trial court. It also appears obvious that all parties understood from these off-record discussions that the trial judge would impose a departure sentence, to which the State would object. After taking Colbert’s plea, the trial judge simply announced that this “will be a downward departure over the State’s objection,” and indicated that the basis for departure was section 921.0026(2)(j), Florida Statutes (allowing a downward departure where “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.”).

We agree with the State that the record does not contain any evidentiary basis to support the trial court’s finding that this basis for departure was appropriate. However, because the prosecutor failed to make this objection below, the issue was not preserved for appellate review. In so holding, we recognize that a general objection, such as the one made here, can be sufficient to preserve the State’s right to challenge the basis for a downward departure sentence “when the basis for that objection clearly appears from the context,” State v. Roberts, 963 So.2d 747 (Fla. 3d DCA 2007), or when “it is clear from the hearing transcript that the trial court was aware of the legal errors associated with its ruling” and therefore “had the opportunity to correct it.” State v. Walker, 923 So.2d 1262, 1265 (Fla. 1st DCA 2006). These exceptions do not apply here.

Because of the off-record proffer and discussions, the State’s general objection could have meant any number of things. The State could have meant exactly what it now argues on appeal: that the court could not depart unless Colbert put his supporting evidence on the record. If that objection had been timely made, Colbert then would have had the opportunity to respond and place any supporting evidence on the record. Perhaps the State had no objection to counsel simply proffering the evidence, but viewed that evidence as insufficient to support a downward departure under section 921.0026(2)(j). Alternatively, the State could have conceded that whatever evidence had been proffered would support a departure, but then objected to the trial court’s decision to exercise his discretion to depart. For all we know, the prosecutor may have agreed, off-record, as to the basis for departure, but indicated that she would still “object for the record.” Given the context of this general objection, we simply cannot tell what legal argument the prosecutor was attempting to make. Therefore, we must affirm. Harrell, 894 So.2d at 940.

AFFIRMED.

PLEUS, J., concurs.

RAINWATER, T., Associate Judge, dissents with opinion.

RAINWATER, T.,

Associate Judge, dissenting.

I respectfully dissent. While the majority acknowledges the lack of record evidence to support a downward departure in this case, it, nonetheless, affirms the departure sentence because, in its view, the State failed to preserve this issue for appellate review. The majority holds that the State’s objection was not specific enough to apprise the trial court of the basis of the objection. I disagree. In my view, the record demonstrates that the court was aware of the basis of the State’s objection and had an opportunity to correct its error.

An appeal may not be taken from a trial court judgment or order unless a prejudicial error is properly preserved, or the error amounts to fundamental error. See § 924.051(3),. Fla. Stat. (2006). To satisfy this preservation requirement, an issue, argument, or objection must be “timely raised before, and ruled on by, the trial court,” and the issue, argument, or objection must have been “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefore.” § 924.051(l)(b), Fla. Stat. (2006). “The purpose of this rule is to ‘place [ ] the trial judge on notice that error may have been committed, and provide [ ] him an opportunity to correct it at an early stage of the proceedings.’ ” Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (citing Castor v. State, 365 So.2d 701, 703 (Fla.1978)).

However, where the basis of the objection is clear from the context, a “general objection” will suffice. State v. Roberts, 963 So.2d 747 (Fla. 3d DCA 2007) (holding that state’s general objection to downward departure was sufficient where it was clear from context that trial court provided only one reason for departure and validity of that reason was being challenged); State v. Walker, 923 So.2d 1262, 1265 (Fla. 1st DCA 2006) (“The trial court only provided one reason in support of its downward departure, and the validity of that reason was clearly being challenged by the general objection. The trial court was on notice of its error, and had the opportunity to correct it.”); State v. Jordan, 867 So.2d 635 (Fla. 5th DCA 2004) (holding statement that “[t]he State doesn’t feel the prongs have been met by the defense” sufficiently preserved objection to downward departure sentence).

The transcript of the plea and sentencing hearing in this case shows that the trial court properly questioned Colbert regarding his understanding of the rights he was giving up and the voluntariness of his plea, then proceeded to sentence him. Without providing either party the opportunity to present evidence, the court sentenced Colbert, as follows:

THE COURT: I find you are intelligent, you understand your rights, you’re making an informed, voluntary waiver of those rights. I will also find based on the information in the court file, probable cause, a factual basis exists for the State to bring the charges, and accept your plea as charged in 06-12673.
All right. Based on that then, we would adjudicate you guilty of the charge of failing to report. We’d sentence you to 180 days Orange County Jail, give you credit for 105 days time served. Additional portion of the sentence would be that you record your correct Florida address within 24 hours of your release, if not prior to your release to the proper authorities.
This will be a downward departure over the State’s objection and it’ll be cited as a basis, subsection J. The offense was committed in an unsophisticated manner and noting for the record that he was sentenced in Indiana, apparently was reporting in Indiana, moved to Florida, failed to report, which was a violation of Florida law, now has an outstanding warrant in Indiana, but it is based on the same issue that he moved and failed to report there as well as here. So it is kind of a bubbling issue. So that would be the basis of the downward departure. Okay? Anything else?
[THE STATE]: Just for the record, obviously the State objects, and it is my understanding that you are using subsection J of the Florida statute 921.026[sic]?
THE COURT: Yes. In conjunction with the fact that this is interstate transfer of location. There could very well be, pursuant to what his counsel has represented, some miscommunication or misunderstanding that he had to report here because it is a different state. So I am kind of taking a factual scenario in conjunction with J as a reason for downward departure.
[THE STATE]: Just for the record, as part of the case packet, the defendant was provided paperwork when he was released from D.O.C. in Indiana which stated that he had seven days to report any change of address specifically. It does not require just merely Indiana, but that he was required to report.
THE COURT: But does it also have the verbiage that says, including any other state or just in the jurisdiction in which he is?
[THE STATE]: It’s not limited to Indiana. It does not have anything beyond that.
THE COURT: Noted for the record ....

(Emphasis added).

It is clear from the transcript that the court was well aware of the State’s anticipated objection to the departure sentence. When the court announced its sentence, it stated that it was a downward departure “over the state’s objection.” The State responded, “Just for the record, obviously the State objects.... ” Under the circumstances presented in this case, the State’s general objection was sufficient to place the trial court on notice of the basis for the objection. A more specific objection on this point would have been futile and the law does not require futile acts. Walker, 923 So.2d at 1265. Thus, contrary to the majority’s view, I would hold that the State’s objection to the downward departure sufficiently preserved the issue for appellate review.

As to the merits, I believe that the trial court erred in entering a departure sentence under the circumstances presented here. Among other things, Florida Rule of Criminal Procedure 8.720 requires that, prior to sentencing, the court must ask the defendant whether any legal cause exists why sentence should not be pronounced and “shall entertain submissions and evidence by the parties that are relevant to the sentence.” Fla. R. Crim. P. 3.720(a) & (b). In the present case, the sentencing court did not entertain “submissions and evidence” from either Colbert or the State. Further, a trial court’s decision to downward depart from a minimum sentence is a two-part process. The court must determine whether a valid legal ground exists and whether there is adequate factual support for that ground. See e.g., Walker, 923 So.2d at 1264. Here, there was no evidence presented upon which the court could find a factual basis to support a departure sentence.

I would reverse the downward departure sentence. Ordinarily, a departure sentence that is reversed would be remanded with directions to enter sentence within the guidelines. However, in this case, it is clear that neither the State nor the defense had an opportunity to present evidence or arguments regarding sentencing. Accordingly, I would remand to the trial court for resentencing.

      . In giving his reason for the departure, the trial court expressly referenced information that “[Colbert's] counsel has represented.”


author: GRIFFIN, J.

text:
    Leo Theodore BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2142.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Kurt Erlenbach, of Kurt Erlenbach, P.A., Titusville, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Leo Theodore Bell, raises two sentencing issues on appeal. Both were preserved by the filing of a motion to correct sentencing error in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b), but the trial court allowed the time to expire without addressing the claimed errors. We find that the first issue subsequently was decided adversely to appellant in Harper v. State, 955 So.2d 617 (Fla. 5th DCA 2007). The second issue, however, appears to have merit.

Bell contends that the wrong scoresheet was utilized at his sentencing. Bell contends that, under the guidelines in effect at the time of his offense and pursuant to Rule 3.703(d)(27), Florida Rule of Criminal Procedure, his score of 26.2 allowed the court to impose a sentence of not more than twenty-two months in prison without identifying a basis to depart from the recommended sentence. The State has not rebutted Bell’s claim.

From what we are able to determine from the available record, sinee Bell’s felony was committed before July 1, 1997, and his points are less than forty, twenty-two months was the maximum and the trial court appears to have erred in sentencing Bell to thirty-six months’ incarceration. Because of the sparseness of the record, however, given Bell’s failure to raise this issue at sentencing, the State’s apparent failure to respond to the Rule 3.800(b) motion and the trial court’s failure to rule on the motion, we reverse but remand for a hearing to determine the correct sentence.

REVERSED and REMANDED.

THOMPSON and EVANDER, JJ., concur.


text:
    Eugenia AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2091.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Eugenia Austin, Ocala, pro se.
    No Appearance for Appellee.
   PALMER, C.J.

Eugenia Austin (defendant) appeals the trial court’s order denying her motion for post-conviction relief filed pursuant to Florida Rules of Criminal Procedure 3.850. We affirm.

The defendant has filed a brief claiming error by the trial court as to only two of the several claims set forth in her rule 3.850 motion. Accordingly, any contention that the trial court erred in denying the remaining claims has been abandoned. See Marshall v. State, 854 So.2d 1235 (Fla.2003). As to the remaining two claims, we find no error.

In that regard, the defendant first claims that her sentence as both a habitual offender and a Prison Releasee Reoffender (PRR) is illegal because the PRR sentence is greater than the habitual offender sentence. Specifically, the defendant argues that her sentence includes a 30-year PRR sentence and a consecutive 5-year habitual offender sentence. She is incorrect. The defendant’s sentence is a single 35-year sentence as both a PRR and a habitual offender. The maximum PRR sentence on her conviction is 30 years. Therefore, the 35-year sentence represents the greater habitual offender sentence. In State v. Manning, 839 So.2d 849 (Fla. 5th DCA 2003), this court held that courts may impose PRR and habitual offender sentence enhancements for a single offense so long as the habitual offender sentence results in a greater sentence. Because the defendant’s habitual offender sentence is greater than the maximum PRR sentence, the sentence is not illegal.

The defendant also contends that her decision to proceed to trial was based on a promise made to her by her trial counsel that she would “get you off the aggravated battery charge, you’ll only get five years.” The defendant argues that her decision to go to trial was involuntary based on this promise. However, the defendant does not allege that a plea offer was ever made to her nor that her trial counsel advised her to reject the plea offer. As such, the defendant’s allegation is insufficient to obtain relief.

AFFIRMED.

PLEUS and TORPY, JJ., concur.

      . See § 775.082(9)(a)3-b, 775.082(9)(b) Fla. Stat. (2005).

      . Because we find the defendant’s allegations to be insufficient, we need not reach the issue on which the other district courts of appeal are currently split as to whether a trial counsel's assurance of a win at trial, standing alone, constitutes a facially sufficient claim of ineffective assistance of counsel if it leads to the defendant’s rejection of a plea offer. See Gomez v. State, 832 So.2d 793 (Fla. 3d DCA 2002). Compare Morgan v. State, 941 So.2d 1198 (Fla. 4th DCA 2006), rev. granted, 956 So.2d 456 (Fla.2007); Dines v. State, 909 So.2d 521 (Fla. 2d DCA 2005), rev. dism., 954 So.2d 27 (Fla.2006); Gonzales v. State, 691 So.2d 602 (Fla. 4th DCA 1997), rev. denied, 700 So.2d 685 (Fla.1997).


text:
    Antonio Z. HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2479.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.

      Antonio Z. Henderson, East Palatka, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The order denying Appellant’s fourth rule 3.800(a) motion to correct sentence is affirmed. On September 21, 2007, this Court directed Appellant to show cause why he should not be prohibited from filing any further appeals or petitions pertaining to his sentence in Putnam County Case No. 98-364, unless reviewed and signed by an attorney licensed to practice in the State of Florida. See generally, State v. Spencer, 751 So.2d 47 (Fla.1999). Appellant filed a response which has been carefully reviewed by this Court. Appellant’s sentence of fifteen years incarceration following the revocation of probation is legal and does not exceed the statutory maximum penalty for a second degree felony. If Appellant received an invalid departure sentence based on his violation of probation, that issue should have been raised on direct appeal. See Holloway v. State, 668 So.2d 627 (Fla. 5th DCA 1996); Rouse v. State, 601 So.2d 281 (Fla. 1st DCA 1992), review denied, 604 So.2d 487 (Fla.1992). Appellant has continuously raised sentencing guideline scoresheet issues which have no bearing on his 15-year sentence, as the departure sentence was not subject to the range provided by his scoresheet. Appellant is hereby prohibited from filing any further appeals or petitions in this court regarding the sentence he received in Putnam County Case No. 98-364, unless reviewed and signed by an attorney licensed to practice in the State of Florida. The clerk of this court shall not accept any further pro se pleadings or appeals from Appellant which relate to the sentence in this case. See Freeman v. State, 794 So.2d 735 (Fla. 5th DCA 2001), review dismissed, 906 So.2d 1058 (Fla. 2005); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995).

The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

GRIFFIN, SAWAYA and MONACO, JJ., concur.


author: TORPY, J.

text:
    Dwayne K. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2568.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.

      Dwayne K. Davis, Carrabelle, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

In this postconviction proceeding, Appellant challenges the lower court’s order summarily denying his motion for additional credit for time served in jail prior to his sentencing. The trial court denied Appellant’s motion finding that he had waived entitlement to additional jail credit. The trial court attached the written plea agreement in support of this finding. The written plea agreement states “[cjredit for time served as of 7/31/2006 is 1,531 days.” We do not view this statement in the plea agreement as conclusive evidence that Appellant knowingly and voluntarily waived jail credit to which he would otherwise be legally entitled. See Murphy v. State, 930 So.2d 794, 796 (Fla. 1st DCA 2006) (finding waiver of jail credit must be clear and knowing); Silverstein v. State, 654 So.2d 1040, 1041 (Fla. 4th DCA 1995) (holding waiver of jail time credit must be specific, voluntary, and clearly shown on the record).

In its response, the State argues that Reed v. State, 810 So.2d 1025 (Fla. 2d DCA 2002), supports the trial court’s conclusion. It asserts that Reed stands for the proposition that a stipulation to a specific amount of jail credit contained within a written plea agreement is tantamount to a waiver of any amount above the stipulated sum. We disagree. Reed affirmed the trial court because the motion for jail credit was not sufficient in that it failed to allege the entitlement to the credit was shown in court records. It did so without prejudice to the filing of a legally sufficient motion. In dicta the Second District Court stated:

We note, however, that had Reed’s motion been facially sufficient, we would have been compelled to reverse the trial court’s order because the attachments to the order do not refute Reed’s claim. Without an attached signed plea agreement or the transcript of the plea colloquy showing that Reed had stipulated to the jail credit, the trial court’s order and its attachments are insufficient to refute Reed’s claim to additional jail credit.
Although we do not decide the issue at this time, we also note that when a claim of this nature is raised, the court records must establish the defendant’s clear intent to waive a portion of his or her accrued jail time before we could affirm a defendant’s stipulation to credit for less jail time than was actually served. It seems to this court that a defendant should not lose credit for jail time actually served due to a mistake by the defendant, defense counsel, or the State.

Reed, 810 So.2d at 1026-27 (emphasis supplied).

We do not interpret this dicta to mean that a waiver can be shown merely by a defendant’s stipulation to a certain amount of credit, absent evidence that the defendant knew of his entitlement to additional jail credit and voluntarily relinquished that right. In fact, the emphasized portion of the quotation is to the contrary.

Therefore, we reverse the order and remand this cause to the trial court with instructions that it either grant the motion or attach portions of the record that conclusively refute Appellant’s claim.

REVERSED and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.