author: BROWNING, J.

text:
    Robert Hayden HUFFMAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3200.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2006.

      Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Robert H. Huffman, Jr., appeals his convictions for possession of a controlled substance and use or possession of drug paraphernalia, pursuant to his nolo contendere plea, which he entered after the trial court denied his motion to suppress. We affirm the judgment and sentence.

An information charged Huffman with possession of a controlled substance, cocaine (Count One), and use or possession of drug paraphernalia (a “crack” pipe) with the intent to use it to introduce a controlled substance into the human body (Count Two). The offenses occurred on October 30, 2004. Huffman moved to suppress all evidence recovered as a result of his alleged “illegal seizure,” specifically, one piece of “crack” cocaine and an alleged “pipe used for smoking crack.” In support of his motion, Huffman cited, as pertinent to the issues, Coney v. State, 820 So.2d 1012 (Fla. 2d DCA 2002); State v. A.M., 788 So.2d 398 (Fla. 3d DCA 2001); Abdullah v. State, 745 So.2d 582 (Fla. 1st DCA 1999); and Burnette v. State, 658 So.2d 1170 (Fla. 2d DCA 1995). The sole witness at the suppression hearing was Lt. Jimmy Anderson, a member of the Chief-land Police Department. Finding that the officer had sufficient lawful grounds to act as he did, the trial court orally denied the motion to suppress and subsequently entered a written order. Huffman then entered a plea of nolo contendere to both charged offenses, expressly reserving the right to appeal the denial of his dispositive motion to suppress. See § 924.051(4) & .06(3), Fla. Stat. (2004); State v. Carr, 438 So.2d 826, 828 (Fla.1983): The factual basis of the plea is that on October 30, 2004, Huffman possessed cocaine and a “crack” pipe in Levy County. Accepting the plea, the trial court adjudicated Huffman guilty and sentenced him to 24 months’ incarceration on Count One and to time served on Count Two.

The State presented the only witness at the suppression hearing. Lt. Jimmy Anderson, who had been with the Chief-land Police Department for more than eight years, testified that his routine duties included investigating for the Department, serving as evidence custodian, commanding the patrol division, and training within the Department. He had worked 2-1/2 years previously with the City of Cedar Key. Around 1:00 a.m. on October 30, 2004, Lt. Anderson was on patrol, wearing a uniform and driving an unmarked vehicle. At the intersection of 4th Avenue and 4th Street in Chiefland, the officer encountered Huffman on a bicycle. The police had received several complaints from citizens regarding that general area, where vehicles would stop and park in the middle of the road and drug dealers would approach and talk to the occupants of the vehicles. Increased patrolling had resulted in the ticketing of vehicles for stopping and standing in the roadway. The officer knew of at least two prior arrests for drug-dealing very near that same intersection. The block comprised 10 or so government houses and another eight houses on the other road.

Very early on the morning in question, Lt. Anderson approached the crossroads and saw a gold Lincoln Town Car stopped in the middle of the intersection. A man on a bicycle was at the driver’s window. The officer recognized the car as belonging to a specifically named individual known to have prior arrests for drug-related offenses. In fact, Lt. Anderson had personally arrested the car’s owner for possession of cocaine in the past. The officer did not know who was driving the car on the morning in question. As Lt. Anderson drove up behind the automobile, he observed the man on the bicycle hand something to the driver of the car, who, in turn, handed something back. The officer suspected a drug deal was occurring. Stepping out of his vehicle, the officer asked the man on the bicycle to come to him. However, the man turned away and tried to pedal off on the bicycle. As the Lincoln Town Car sped off, the officer chased the bicyclist, grabbed him, and pulled him off the bicycle. The officer then saw the man throw down a piece of “crack.” Lt. Anderson testified that at the police academy, he had learned drug identification. During his employment in Chiefland,' he had attended several narcotics classes addressing drug identification, undercover street-level buys, and drug-trafficking. He had made at least 200 drug arrests.

On cross-examination, Lt. Anderson clarified (after reviewing his deposition) that he had seen the person in the automobile hand something to the man on the bicycle, Huffman. The witness had not seen Huffman give anything specific to the person in the car. When the officer approached the scene, he did not know or recognize Huffman. Lt. Anderson testified that he activated his blue lights as soon as he pulled behind the gold Lincoln Town Car. The bicyclist and the driver of the car did not know Lt. Anderson was a police officer until the blue lights were engaged. The officer exited his unmarked patrol vehicle. As Huffman pulled away from the Lincoln Town Car (which sped off) on his bicycle, trying to get away, Anderson grabbed him about 20 feet from where the car had been. The officer pursued the suspect in the belief that a drug deal had just occurred in “a known drug area” where prior drug-related arrests had been made. The citizen complaints about drug dealing in that area had not mentioned Huffman by name. The officer testified that another factor leading him to believe drugs were being dealt was the unusual presence of a white male, Huffman, in that part of town.on a bicycle at that time of the early morning. The Lincoln Town Car was owned by a known drug dealer. Lt. Anderson testified it was commonly known among law-enforcement officers that white males would ride bicycles to that part of town to buy drugs. When he was asked how many drug-related arrests of bicyclists had been made, the witness testified he could not say exactly how many, but he mentioned one individual by name.

At the conclusion of the officer’s testimony, the State argued that Huffman lacked standing to move to suppress the evidence because he had voluntarily discarded it and was not claiming ownership of the contraband or any other “property interest” in it. Defense counsel argued that Huffman did have standing to challenge the alleged “illegal seizure” and “illegal arrest” because the State was asserting the drug contraband was his. The trial court rejected the State’s standing challenge.

Defense counsel argued that the State had failed to meet its burden to show that Lt. Anderson had probable cause when he arrested and searched Huffman. In support of suppressing the evidence, the defense relied on Coney and the other cases cited in its motion. Defense counsel argued that the officer’s testimony that the car he saw was owned by a known drug dealer did not indicate who actually was driving on that morning and did not incriminate Huffman. The State argued that Walker v. State, 846 So.2d 643 (Fla. 2d DCA 2003); and Glover v. State, 843 So.2d 919 (Fla. 5th DCA 2003), support denial of the motion. The State asserted that the totality of the circumstances supported the officer’s reasonable, well-founded belief that he had observed a drug deal.

“By state constitutional mandate in the conformity clause, we are to resolve Fourth-Amendment search and seizure issues in accordance with applicable United States Supreme Court precedents.” Brye v. State, 927 So.2d 78, 80 (Fla. 1st DCA 2006); see Art. I, §' 12, Fla. Const.; Holland v. State, 696 So.2d 757, 759 (Fla.1997). The trial court’s ruling on a motion to suppress is a mixed question of fact and law. See Brye, 927 So.2d at 80. Facts are reviewed for whether competent substantial evidence supports them, whereas the trial court’s application of a constitutional standard to the facts in a particular case is reviewed de novo. See United States v. Bajakajian, 524 U.S. 321, 336 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (stating that findings of historical fact should be reviewed only for “clear error,” with “due weight” to be accorded “to inferences drawn from those facts” by the trial court and by local law-enforcement officers); United States v. Harris, 928 F.2d 1113, 1115-16 (11th Cir.1991); Brye, 927 So.2d at 80-81. “A trial court’s ruling on a motion to suppress is presumed correct.” See Bonifay v. State, 626 So.2d 1310, 1312 (Fla.1993). “We must construe all the evidence, and reasonable inferences therefrom, in a manner most favorable to sustaining the trial court’s ruling.” Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999); see Owen v. State, 560 So.2d 207, 211 (Fla.1990). Huffman has the burden to demonstrate prejudicial error pursuant to section 924.051(7), Florida Statutes (2004). See Hines, 737 So.2d at 1184.

A stop and/or brief detention of a person for investigatory purposes is permissible if an officer has a well-founded suspicion (supported-by articulable facts) of criminal activity, even if the officer lacks probable cause. See § 901.151(2), Fla. Stat. (2004); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State, 626 So.2d 185, 186 (Fla.1993); Brye, 927 So.2d at 81-82; State v. Gonzalez, 682 So.2d 1168, 1170 (Fla. 3d DCA 1996). The totality of the circumstances must be taken into account when determining whether an officer had a reasonable suspicion of criminal activity to justify the investigatory stop. See Jenkins v. State, 685 So.2d 918, 920 (Fla. 1st DCA 1996). Factors that may be considered include “the time of day; the appearance and behavior of the suspect; the appearance and manner of operation of any vehicle involved; and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge.” See Grant v. State, 718 So.2d 238, 239 (Fla. 2d DCA 1998); Jenkins, 685 So.2d at 920. Other relevant factors are “the officer’s narcotics experience; the reputation of the location for drive-up transactions; the extended period of the surveillance; and the history of previous multiple arrests from that site.” Burnette, 658 So.2d at 1171. A suspect’s flight from an officer is one element in the totality of the circumstances that can properly be considered to support an investigatory detention. See Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (stating that officer involved in investigation in area known for heavy narcotics trafficking had reasonable suspicion that defendant was involved in criminal activity and was justified in stopping defendant, after defendant’s unprovoked headlong flight after seeing caravan of police vehicles converge upon neighborhood); Mitchell v. State, 787 So.2d 224, 228-29 (Fla. 2d DCA 2001) (holding that officer’s seizure of marijuana and arrest of defendant were constitutionally justified where, upon officer’s approach, defendant began to flee and thrust his hands toward his own pocket, causing justifiable concern for officer’s safety; when officer properly responded to potential threat by grabbing him, defendant voluntarily abandoned drugs by throwing them over fence).

It was nearly 1:00 a.m. when the officer observed Huffman and the stopped automobile, the vehicle was in the middle of the intersection (a situation about which citizens had complained relating specifically to illicit drug transactions), and the officer personally knew of past drive-up drug deals occurring in that immediate area involving men on bicycles. The officer recognized the gold Lincoln Town Car as belonging to a known drug offender whom the officer previously had arrested for cocaine possession. Also relevant are the officer’s narcotics experience, the specific location’s reputation for drive-up drug transactions, and the appearance of what looked like a hand-to-hand transaction. See Glover v. State, 843 So.2d 919 (Fla. 5th DCA 2003) (concluding that veteran narcotics officer had probable cause to conduct warrantless pat-down search of defendant for drugs, where officer observed defendant, a known drug dealer, from 10-15 yards away about to place unidentified object into hand of unknown female, defendant drew back his hand and placed object in his mouth when he saw officer, female then walked off, second officer found “crack” pipe in female’s possession, and officer personally had arrested dozens of people for drug violations in that same open-field location); Burnette, 658 So.2d at 1171. “[I]t is not absolutely necessary for an officer to observe drugs or money changing hands in order to develop the founded suspicion necessary to temporarily detain a citizen to investigate whether a drug offense has been committed.” Walker, 846 So.2d at 645; see Ford v. State, 783 So.2d 284, 286 (Fla. 2d DCA 2001); Burnette, 658 So.2d at 1171. Even though Lt. Anderson conceded he could not tell who was driving the Lincoln Town Car on the morning in question, the officer’s knowledge that it was a known drug dealer’s automobile was a proper factor among the total panoply of circumstances constituting his reasonable, articulable suspicion of criminal activity in progress.

The circumstances observed and known by the officer justified an investigatory Terry stop or detention when the officer activated his blue lights and exited his .patrol vehicle. Because Lt. Anderson was justified in suspecting that Huffman was involved in criminal activity, the officer could properly “engage in further investigative efforts.” Mitchell, 787 So.2d at 228. When Huffman tried to flee headlong from the officer during the lawful investigatory stop and temporary detention, the officer gave chase and pulled Huffman off his bicycle. The cocaine was voluntarily tossed loose in plain sight, and thus was abandoned, during Huffman’s fall. Once the cocaine fell to the ground, the officer had probable cause to arrest Huffman, and the seizure of the cocaine and the search for paraphernalia were constitutionally justified. See id. at 228-29; Abdullah, 745 So.2d at 582 (affirming denial of motion to suppress bag of cannabis, which defendant had thrown into a tree as he fled the police,, under theory of abandonment, where illegal stop and seizure was terminated once defendant ran off, so that bag thrown while fleeing was not discarded while defendant was “seized” within meaning of Fourth Amendment); State v. Worthington, 543 So.2d 1313 (Fla. 5th DCA 1989) (holding that bags of cocaine -that fell out of shooting suspect’s pockets when suspect resisted lawful detention and pat-down were admissible). .Because Huffman established no legitimate ground for the contraband to be suppressed, the motion to suppress was properly denied. Cf. A.M., 788 So.2d at 398 (reversing suppression order because suspect was not “seized” by police officer, where suspect refused to stop and began to walk away after officer sought to question him, suspect dropped plastic bag containing marijuana before officer was able to grab him, and drugs were not fruit of an unlawful seizure and were admissible).

Huffman misplaces his reliance on Burnette, 658 So.2d at 1170, which arose from an investigation centered on a house where the police had made 30-40 arrests in the past and where a known drug dealer, Mr. Hall, worked his trade. See id. During binocular surveillance of the house around 10:45 p.m. from a half-block away, an officer observed defendant Burnette approach the house in a car. Hall exited the house, and he and Burnette were seen engaged in a “hand to hand” transaction, although the officer did not actually see money or drugs transferred. The officer radioed his observations to two other officers, who stopped Burnette’s car, searched him and his vehicle, found cocaine, and arrested him. See id. at 1170-71. Burnette asserted that his motion to suppress must be granted because the police never saw either money or drugs before stopping him. Acknowledging its reluctance to approve a stop and search, absent an officer’s actual observation of an exchange of money or drugs in a drive-up situation, the Second District Court nevertheless noted the other factors within the totality of circumstances that gave rise to a well-founded or reasonable suspicion that Burnette had engaged in illegal activity. Given the officer’s experience, training, and knowledge, those circumstances justified an investigatory stop. However, nothing in the Bur-nette record indicated that anything further occurred after the stop, and before the search, that would have provided probable cause for an arrest and search incident to arrest, nor did the trial judge make a finding of probable cause to arrest. On that record, the district court reversed and remanded for further proceedings. See id. at 1171. In contrast, the instant facts gave Lt. Anderson a reasonable, well-founded suspicion that he was observing an illegal drug transaction, a circumstance that warranted his performing a temporary investigatory stop or detention under Terry. As the officer approached him, Huffman tried to escape, and when the officer grabbed him while in pursuit, Huffman threw down the “crack.” Unlike the officers in Burnette, Lt. Anderson then had probable cause to make an arrest for drug possession and to perform a search.

The State correctly contends that Coney, 820 So.2d at 1012, is materially distinguishable on its facts and is not dispositive of the case at bar. The police in Coney were conducting surveillance in an area where many drug arrests had previously been made. They observed Coney approach on a bicycle and place his closed hand into a car. The police could not see what was in his hand, but as the car left, they saw Coney holding money. From their training and experience, the officers believed they had seen a drug transaction. When one of the officers approached Coney about a block away from the suspected transaction, he noticed that Coney had an object in his mouth, and he directed Coney to spit it out. Coney complied, and out came a “nickel size” bag of marijuana. Coney was arrested and charged with possession of cannabis with the intent to sell or deliver. At the hearing challenging the legality of the search and seizure of Coney, the officer acknowledged that before Coney spit out the bag, he did not know what was in Coney’s mouth. While conceding the object could have been candy or a mint, the officer testified that the mouth is a good place to hide drugs. The trial court denied Coney’s motion to suppress. See id. at 1013. The Second District Court concluded that the officers’ observations and the surrounding circumstances provided a legitimate ground to conduct an investigatory stop of Coney. However, as in Burnette, the officers in Coney lacked probable cause to search the suspect, specifically, to search Coney’s mouth or order him to expectorate its contents. The panel noted several significant factors to support this conclusion: the officers had not seen what was in Coney’s hand when he

reached into the ear, they had not seen what was in Coney’s mouth before he spit out the object at the officer’s command, and they had not observed Coney involved in more than one transaction. Both officers admitted that before Coney spit out the marijuana, they lacked probable cause to arrest him. See id. at 1014. Thus, Coney’s motion to suppress should have been granted. See id. at 1016.

The trial court correctly denied Huffman’s motion to suppress. His judgment and sentence are AFFIRMED.

WOLF and WEBSTER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF DELAND and Multi-Line Claims Service, Appellants, v. William WILKINS, Appellee.
    No. 1D06-1731.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2006.
    Mark A. Zimmerman of James & Zimmerman, P.L., Deland; David A. McCranie of David A. McCranie, P.A., Jacksonville, for Appellants.
    Kelli Biferie of Bichler & Kelley, P.A., Winter Park, for Appellee.
   PER CURIAM.

The order sought to be reviewed is neither a final order nor an appealable nonfinal order. This appeal is therefore dismissed for lack of jurisdiction and appellants’ second motion for extension of time to obtain an appealable order is denied.

APPEAL DISMISSED.

WOLF, VAN NORTWICK, and BROWNING, JJ., concur.


author: WELLS, J.

text:
    Gerardo BONET, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-530.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.

      Bennett H. Brummer, Public Defender; Carlos F. Gonzalez, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   WELLS, J.

Gerardo Bonet seeks reversal of three convictions for direct criminal contempt which occurred at the start of his trial, as well his convictions for aggravated stalking, violation of an injunction against domestic violence, attempted burglary, and criminal mischief, which followed. We reverse the contempt convictions but affirm Bonet’s convictions on the remainder of the charges.

We agree with Bonet that the trial court improperly convicted and sentenced him for three instances of contempt because it failed to comply with Rule 3.830 of the Florida Rules of Criminal Procedure. As this Court observed in Hibbert v. State, 929 So.2d 622, 622 (Fla. 3d DCA 2006):

Florida Rule of Criminal Procedure 3.830 requires the trial judge to inform the defendant of the accusation of criminal contempt and inquire whether the defendant has cause to show why he should not be held in contempt and sentenced. See Fla. R.Crim. P. 3.830. Rule 3.830 also requires the trial judge to give the defendant the opportunity to present evidence of excusing or mitigating circumstances before the sentencing. See Fla. R.Crim. P. 3.830.

As the State candidly concedes, the trial court failed to comply with these procedural requirements mandating reversal of these three contempt judgments. See Hutcheson v. State, 903 So.2d 1060, 1062 (Fla. 5th DCA 2005) (“failure to follow the procedural requirements [of Rule 3.830] in contempt proceedings is fundamental error”); Garrett v. State, 876 So.2d 24, 25-26 (Fla. 1st DCA 2004) (confirming that “preservation of error is not required because any defect in [a Rule 3.830] contempt proceeding is fundamental error”).

We do not, however, agree with Bonet that the trial court’s denial of his request for a new attorney mandates reversal of the remainder of his convictions. The trial court conducted an inquiry which sufficiently addressed each of Bonet’s concerns and then properly found trial counsel competent to proceed. See Nelson v. State, 274 So.2d 256, 258-259 (Fla. 4th DCA 1973). On the record before us, no abuse of discretion has been demonstrated. See Wilson v. State, 889 So.2d 114, 117-118 (Fla. 4th DCA 2004), citing, Moore v. State, 778 So.2d 1054, 1056 (Fla. 4th DCA 2001).

Accordingly, the three direct criminal contempt convictions are reversed and remanded for proceedings mandated by Rule 3.830; Bonet’s convictions for aggravated stalking, violation of an injunction against domestic violence, attempted burglary, and criminal mischief are affirmed.

      . Nelson, 274 So.2d at 258-259 explains:
      [W]here a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent's right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge. If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.


text:
    Robert Lewis HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1446.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   ON MOTION FOR REHEARING DENIED

PER CURIAM.

The motion for rehearing is denied. We withdraw our June 21, 2006 opinion and substitute the following in its place. Robert Lewis Harris appeals his conviction, asserting that the trial court committed fundamental error when it included the conjunction “and/or” in the jury instruction between his name and that of a co-defendant. We reverse, finding that the use of the “and/or” conjunction in the instruction resulted in fundamental error based on the totality of the circumstances.

The State charged Harris and his co-defendant with second degree murder arising from a bar room brawl that ultimately led to the victim’s death. The jury returned a guilty verdict of second degree murder as to Harris and the co-defendant.

The pertinent instruction on second degree murder read as follows:

To prove the crime of second degree murder, the State must prove the following three elements beyond a reasonable doubt:
1. [The victim] is dead.
2. The death was caused by the criminal act of [the co-defendant] and/or Robert Lewis Harris.
3. There was an unlawful killing of [the victim] by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

The trial court further instructed the jury that it had to consider each defendant separately and the evidence applicable to each one separately. The parties did not object to the jury instructions as given.

Harris argues that a new trial is warranted because the use of “and/or” in the jury instruction may have misled the jury, since it could have based his conviction solely on the acts of his co-defendant. We agree.

Courts previously have considered this claimed error fundamental based on the totality of the circumstances. See Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005); Davis v. State, 895 So.2d 1195 (Fla. 2d DCA 2005); Cabrera v. State, 890 So.2d 506 (Fla. 2d DCA 2005); Concepcion v. State, 857 So.2d 299 (Fla. 5th DCA 2003); Williams v. State, 774 So.2d 841 (Fla. 4th DCA 2000). These cases uniformly hold that including the “and/or” conjunction between the names of defendants in the instruction results in fundamental error because it creates a situation in which the “jury may have convicted the [defendant] based solely upon a finding that [the] eode-fendant’s conduct satisfied an element of the offenses.” See, e.g., Davis, 895 So.2d at 1196. Based upon the instruction the trial judge gave in this case, the jury could have found Harris guilty of second degree murder if it found that the criminal act of his co-defendant caused the victim’s death.

The State argues that any error was harmless because of the additional jury instruction that required the jury to consider each defendant separately and the evidence applicable to each one separately. We disagree with this position. The State in Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), argued that no fundamental error arose from the jury instruction because the trial court further instructed the jury to consider each defendant and the evidence applicable to each separately, and that the verdict as to one defendant must not affect the verdict as to the other defendant. Despite the additional instruction, the court disagreed with the State and concluded that the insertion of the “and/or” conjunction resulted in fundamental error requiring a new trial. Id. at 396. Similarly, this Court held in Dorsett that “even if the charges against each defendant were to be considered ‘separately,’ as the standard jury instruction stated, the primary instruction still provided that [the defendant] might be criminally liable solely if [his co-defendant] was liable.... ” Dorsett, 901 So.2d at 227. We thus find that the addition of a standard jury instruction with respect to the joint trial of Harris and the code-fendant did not remedy the fundamental error resulting from the inclusion of the “and/or” conjunction in the specific jury instruction regarding the elements of second degree murder.

We thus conclude that the use of the “and/or” conjunction in the instruction to the jury resulted in fundamental error based on the totality of the circumstances. Therefore, we reverse Harris’ conviction and remand for a new trial.

Reversed and remanded.


author: FLETCHER, Judge.

text:
    Valerie GIBSON, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D05-2252.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Thomas John Butler, Miami Beach, for appellant.
    John D. Maher, Tallahassee, for appellee Florida Unemployment Appeals Commission.

      Before FLETCHER, WELLS, and SHEPHERD, JJ.
   FLETCHER, Judge.

Valerie Gibson appeals an order by the Florida Unemployment Appeals Commission in which she was disqualified from receiving unemployment compensation benefits. We reverse.

Gibson was employed by Vanguard Security, Inc. as a security guard at Mount Sinai Hospital in Miami Beach from January 14, 2004 until April 12, 2005. She normally used her car to get to work, but on occasion used public transportation. In February of 2005, on medical advice, Gibson, who was pregnant, requested a transfer to a less stressful previous position. On April 12, 2005, Vanguard placed Gibson on suspension because it could not accommodate her request. About two weeks later, Vanguard offered Gibson a new position located six miles further away which included weekend hours. Gibson declined the job offer because it would have necessitated her taking three public buses, and her doctor advised against such means of transportation during her third trimester of pregnancy. Gibson filed for and obtained a determination that she was eligible to receive unemployment compensation benefits. However, Vanguard appealed the decision. The appeals referee ruled that Gibson failed to accept work without good cause. The ruling was subsequently affirmed by the Florida Unemployment Appeals Commission.

Under Section 443.101(2), Florida Statutes (2005),

“[a]n individual shall be disqualified for benefits ... [i]f the [agency] finds that the individual has failed without good cause ... to accept suitable work when offered to him or her.... In determining whether or not any work is suitable for an individual, the [agency] shall consider the degree of risk involved to his or her health, safety, and morals.”

Fear for one’s personal health may constitute good cause for leaving employment or rejecting a job offer as unsuitable. See Wall v. Unemployment Appeals Comm’n, 682 So.2d 1187 (Fla. 4th DCA 1996) (holding that claimant’s concerns for her personal safety at her workplace provided good cause for her leaving her employment at a shelter for domestic violence victims where there was a history of burglaries); Nolan v. Unemployment Appeals Comm’n, 680 So.2d 595 (Fla. 5th DCA 1996) (finding college instructor eligible for benefits on ground that offered work was unsuitable where a student who had threatened the instructor and his family had been reinstated); Macdonald v. Florida Dep’t of Labor & Employment Sec., 568 So.2d 1319 (Fla. 2d DCA 1990) (determining position offered unsuitable where it required a 15-mile late-hour commute for a 58-year-old claimant with an unreliable car); Tannariello v. Fed’n of Pub. Employees, 437 So.2d 799 (Fla. 4th DCA 1983) (concluding that good cause for terminating employment existed where employee was required to work alone in a vacant building in a dangerous neighborhood). Under the circumstances herein, Gibson’s concern for her health was a sufficient basis to find the work offered unsuitable. We, therefore, reverse and remand with instructions to qualify appellant for benefits for the specified period.

Reversed and remanded.

      . Gibson was unable to maintain her car after her suspension.


text:
    Mark HEBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2605.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Mark Hebert, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN and SUAREZ, JJ.
   PER CURIAM.

Mark Hebert appeals his convictions and sentences for burglary of an occupied dwelling and third degree grand theft. Appointed counsel has filed a memorandum brief and motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We conclude that the Anders proceeding is appropriate and grant appointed counsel’s motion to withdraw. The defendant has failed to raise any meritorious points in his pro se brief, and accordingly, we affirm his convictions and sentences.

Affirmed.


text:
    Kevin NEWSOME, Appellant, v. The TOWERS OF QUAYSIDE, etc., et al., Appellees.
    No. 3D05-2001.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Amy D. Shield (Boca Raton); McFar-lane Dolan, for appellant.
    Cole, Scott Kissane, and Scott A. Cole, and Maria T. Kleppinger, Miami, for ap-pellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

We reverse the trial court’s entry of summary judgment because there are material facts at issue. Our reversal, however, is without prejudice to the appellees to renew their motion for summary judgment of these issues on a more fully developed record. Smith v. Mariner’s Bay Condo. Ass’n, 789 So.2d 1228 (Fla. 3d DCA 2001).

Reversed and remanded.


text:
    Rudolph MAXWELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2284.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Rudolph Maxwell, in proper person.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

The defendant appeals the trial court’s summary denial of his motion for post conviction relief alleging ineffective assistance of trial counsel. The defendant’s claims are legally insufficient and conclusively refuted by the record. Fla. R.Crim. P. 3.850; Fla. R.App. P. 9.141(b)(2)(D), Walls v. State, 926 So.2d 1156 (Fla.2006).

Affirmed.


author:
RAMIREZ, J.
      ROTHENBERG, J.

text:
    Francisco Eddy SURI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2022.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Rehearing Denied Sept. 21, 2006.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michele Samaroo, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

Francisco Eddy Suri appeals from his conviction for two counts of lewd and lascivious molestation on a child less than twelve years of age. Because we conclude that counsel did not properly preserve the issue for review of the failure to excuse a potential juror for cause, we affirm.

The State charged Suri with two counts of lewd and lascivious molestation on a child under twelve, alleging that he committed several lewd acts against his girlfriend’s seven-year-old daughter. At the beginning of voir dire, the prospective jurors were informed of the State’s charges against Suri. There was an initial exchange between the court and prospective Juror Alade:

THE COURT: I see that you have friends who have been or were victims of very very serious crimes. How recent was the most recent?
PROSPECTIVE JUROR ALADE: Two thousand.
THE COURT: Do you think that either of those experiences would affect your ability to be fair and impartial?
PROSPECTIVE JUROR ALADE: No.
THE COURT: Okay.

The prosecutor then asked the jurors if there was anything in their backgrounds that would prevent them from being a fair and impartial juror. In response, prospective Juror Alade stated: “I do believe I could be fair and impartial, but I see a lot of this in my practice. I’m a resident in the department of pediatrics at Jackson. So I just thought I should say that.” Juror Alade then answered “yes” to the following question: “And with that experience though, you still could be fair and impartial?”

In her juror questionnaire, Juror Alade stated that her best friend in high school was impregnated while being raped, and that her medical school sorority sister was raped and murdered. When defense counsel attempted to question Juror Alade further about these incidents, she requested that she be allowed to speak outside the presence of the other prospective jurors. When the jurors were dismissed for lunch, two jurors remained, including Juror Alade. The following exchange then took place:

THE COURT: Ms. Alade, will you join us sidebar, please.
DEFENSE: Ms. Alade, I know you wanted to go sidebar regarding you had placed in your questionnaire your friend in high school was raped and a friend in medical school murdered. I want to ask you some more detail about that privately. Which one was it in 2000?
ALADE: Medical school. That’s current. Just started jury selection last week. I didn’t think it will be appropriate to discuss that in front of everybody since it’s on trial.
DEFENSE: And the person who was murdered, how close was that person to you?
ALADE: I had known her for two years. I joined the same sorority.
DEFENSE: Okay.
That case is going to trial this week?
ALADE: No. They started jury selection last week. It’s been four years since the actual incident.
DEFENSE: Are you a witness?
ALADE: No. I haven’t been called.
DEFENSE: Okay.
And are you having any feelings about that since it’s in trial right now?
THE COURT: What does that mean?
DEFENSE: Are you having any feelings that will affect your ability to be fair in this case?
ALADE: No.
DEFENSE: No. Okay. All right.
And what about regarding your friend in high school?
THE COURT: Regarding what?
DEFENSE: Your friend in high school that was raped.
ALADE: What about it?
DEFENSE: How close was that person to you?
ALADE: Best Mend.
DEFENSE: Okay.
And what happened? Was the person ever caught?
ALADE: She never pressed charges. That took me a year to convince her to tell her parents that’s how she got pregnant.
DEFENSE: Okay.
And did criminal charges ever come about?
ALADE: No. He was in jail for something else. She just got him to drop his parental rights.
DEFENSE: Okay. And is there anything about that experience that she was your Mend that would affect your ability to be fair in this case?
ALADE: I mean, I would hope not. I don’t know if this case entails — I consider myself to be pretty level headed. I could separate one from the other. It was a long time ago. I don’t know. If this was a seven year old who was raped and got pregnant, if that’s going to bring something up in me. But I assume no. Do you understand?
DEFENSE: I think I do.
ALADE: Okay. I assume no. But if it’s something that hits close to home, I can’t tell you because I don’t know the situation surrounding the case. I don’t know. And my friend who was murdered in Gainesville, was also raped and murdered and left in her apartment for three days before we got in to find her.
THE COURT: Anything else? State?
PROSECUTOR: I’m assuming, for a moment, this little seven-year old was not pregnant. So knowing that, that’s not going to cause you any problems?
ALADE: No. I honestly don’t assume so, but no. As far as I can tell thinking logically, no.
PROSECUTOR: Good. Thank you.
THE COURT: Okay.

Juror Alade then expressed her concerns about scheduling, worried that the trial could take longer than her job duties as a resident at Jackson Memorial Hospital would allow, and the trial judge assured her that the trial could be completed within three days.

Before recessing for lunch, another juror was questioned. When the trial reeon-vened, jury selection began. When Juror Alade came up, the following took place:

DEFENSE COUNSEL: I’m moving for cause on Ms. Alade, Judge, because at sidebar when she was asked whether she could be fair, she hesitated.
THE COURT: Denied. I disagree with that representation. Anything you want to exercise a peremptory.
DEFENSE COUNSEL: No.

Later, the defense struck Juror Alade peremptorily. Then, after exhausting all of her peremptory challenges, defense counsel requested an additional peremptory challenge based on the denial of a cause challenge regarding another prospective juror, Juror De Diego. The trial court granted defense counsel’s request. Defense counsel then requested one more additional peremptory challenge based on the denial of the cause challenge as to Juror Alade. Defense counsel identified the juror she would strike if the additional peremptory was granted. The trial court denied the request. The jury subsequently found Suri guilty as charged.

The defense contends on appeal that the trial court abused its discretion by denying its challenge for cause of Juror Alade where, based on her equivocal responses, there was a reasonable probability that Juror Alade could not be fair and impartial due to the fact that she is a pediatrician who deals with children who have been sexually abused, her best friend in high school was impregnated while being raped, and her sorority sister was raped and murdered. None of these arguments, however, were presented to the trial court.

When defense counsel stated that Juror Alade hesitated as to whether she could be fair, the trial court disagreed with that representation. The question of whether a prospective juror is competent to serve as a juror is a mixed question of law and fact and will not be disturbed on appeal unless the trial court’s decision is manifestly erroneous. Mills v. State, 462 So.2d 1075, 1079 (Fla.1985).

As recognized in Dorsey v. State, 868 So.2d 1192 (Fla.2008), juror responses during voir dire include both verbal and nonverbal communications. The term “hesitate” clearly contains a nonverbal component when it refers to the speaker’s slow delivery, or when the speaker pauses in uncertainty, or speaks haltingly. We must defer to the trial court’s conclusion that Juror Alade did not hesitate in her nonverbal communication. See Fernandez v. State, 730 So.2d 277, 281 (Fla.1999).

Once defense counsel moved to strike for cause Juror Alade because she hesitated, and the trial court disagreed with counsel’s representation, it became incumbent on counsel to expand on the objection so that the trial court could properly rule on the motion. Id.; Turner v. State, 645 So.2d 444, 446 (FIa.1994). This is a lynchpin of our preservation rule. If instead of nonverbal hesitation, defense counsel meant that there was verbal equivocation of the type recognized in Busby v. State, 894 So.2d 88 (Fla.2004), defense counsel should have voiced it. “The mere fact that a juror gives equivocal responses does not disqualify that juror for service. The question is whether the responses voiced by [the juror] were equivocal enough to generate a reasonable doubt about his fitness as a juror.” Id. at 96. See also Guzman v. State, 934 So.2d 11 (Fla. 3d DCA 2006). Here the trial court never even had the opportunity to evaluate whether Juror Alade’s responses were equivocal enough because that argument was never made. We therefore hold that the argument that Juror Alade’s response were equivocal was not preserved when the motion to excuse her only mentioned that she hesitated.

Affirmed.

GREEN, J., concurs.

ROTHENBERG, J.

(concurring).

The majority opinion correctly recognizes that because defense counsel failed to preserve the defendant’s objection to Ms. Alade, we must affirm. I, therefore, join the majority and write only to include an analysis regarding the standard which must be applied by the appellate courts when examining a trial court’s rulings regarding challenges for cause, because even if the objection to Ms. Alade had been preserved, affirmance would be mandated.

There are two very distinct and different standards upon which a challenge for cause must be analyzed. The first is the standard which is used to guide the trial court when making a determination as to whether to grant a cause challenge, and the second is the standard upon which an appellate court must review the trial court’s ruling. After applying the 'appellate standard clearly articulated by our state Supreme Court, I would affirm. See Guzman v. State, 934 So.2d 11 (Fla. 3d DCA 2006).

THE TRIAL COURT’S STANDARD REGARDING CHALLENGES FOR CAUSE

“The primary purpose of voir dire is to determine whether the juror is qualified and will be fair and impartial, free from all bias, prejudice or interest in the cause being tried.” Williams v. State, 744 So.2d 1103, 1108 (Fla. 3d DCA 1999)(Cope, J., concurring in part and dissenting in partXquoting Ritter v. Jimenez, 343 So.2d 659, 661 (Fla. 3d DCA 1977)) (citations omitted). Juror excusáis for cause are generally within the trial court’s discretion, Kokal v. Dugger, 718 So.2d 138 (Fla.1998), and thus, the trial court has the duty to evaluate each cause challenge. “The trial court standard for granting an excusal for cause is based upon reasonable doubt,” Kessler v. State, 752 So.2d 545, 550 (Fla. 1999), and the Florida Supreme Court has repeatedly held, if there is a reasonable doubt about a juror’s impartiality, the juror should be dismissed for cause. See Id.; Turner v. State, 645 So.2d 444, 447 (Fla.1994); Moore v. State, 525 So.2d 870, 872 (Fla.1988)(“The juror should be excused if there is any reasonable doubt about the juror’s ability to render an impartial verdict.”); Hill v. State, 477 So.2d 553, 555 (Fla.1985); Montozzi v. State, 633 So.2d 563, 565 (Fla. 4th DCA 1994).

THE STANDARD TO BE APPLIED ON APPELLATE REVIEW

When reviewing whether the trial court has abused its discretion in determining whether there exists reasonable doubt as to a juror’s ability to render a fair and impartial verdict, an appellate court must give great deference to the trial court’s ruling. Ault v. State, 866 So.2d 674, 684 (Fla.2003)(“[A] trial court has great discretion when deciding whether a challenge for cause based on juror incompetency is proper.”)(emphasis added); Conde v. State, 860 So.2d 930, 939 (Fla.2003)(“A trial court has great discretion when deciding whether to grant or deny a challenge for cause based on juror competency.”)(emphasis added)(citing Barnhill v. State, 834 So.2d 836, 844 (Fla.2002)); Morrison v. State, 818 So.2d 432, 442 (Fla.2002)(“ ‘The trial judge has the duty to decide if a challenge for cause is proper, and this Court must give deference to the judge’s determination of a prospective juror’s qualifications.’ ”)(emphasis added)(quoting Castro v. State, 644 So.2d 987, 989 (Fla.1994)). The “great deference” appellate standard, which is used to review a trial court’s ruling regarding a cause challenge, is based upon our recognition that the trial court has a unique vantage point in determining juror bias. Unlike the trial court, which is able to see and hear the juror’s responses and to make observations, an appellate court can only review the cold record. As our Supreme Court articulated in Ault:

In reviewing a claim of error such as this, we have recognized that the trial court has a unique vantage point in the determination of juror bias. The trial court is able to see the jurors’ voir dire responses and make observations which simply cannot be discerned from an appellate record.

Ault, 866 So.2d at 683-84 (quoting Smith v. State, 699 So.2d 629, 635-36 (Fla.1997)); see also Busby v. State, 894 So.2d 88, 95 (Fla.2004); Davis v. State, 859 So.2d 465, 473 (Fla.2003)(“A trial court has latitude in ruling upon a challenge for cause because the court has a better vantage point from which to evaluate a prospective juror’s answers than does this Court on a cold review of the record.”); Morrison, 818 So.2d at 442 (“ ‘A trial court has latitude in ruling upon a challenge for cause because the court has a better vantage point from which to evaluate prospective jurors’ answers than does this Court in our review of the cold record.’ ’’Xquoting Mendoza v. State, 700 So.2d 670, 675 (Fla.1997)); Conde, 860 So.2d at 939 (“[Tjrial courts have a unique vantage point in their observation of jurors’ voir dire responses. Therefore, this Court gives deference to a trial court’s determination of a prospective juror’s qualifications and will not overturn that determination absent manifest error.”). In fact, in Cook v. State, 542 So.2d 964 (Fla.1989), the Florida Supreme Court specifically noted that “[tjhere is hardly any area of the law in which the trial judge is given more discretion than in ruling on challenges of jurors for cause,” Id. at 969 (emphasis added), and that “ ‘[tjhere are few aspects of a jury trial where we would be less inclined to disturb a trial judge’s exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empanel-ling of a jury.’” Id. at 969 (emphasis added)(quoting United States v. Ploof, 464 F.2d 116, 118-19 n. 4 (2d Cir.), cert. denied sub nom. Godin v. United States, 409 U.S. 952, 93 S.Ct. 298, 34 L.Ed.2d 224 (1972)).

Given the broad discretion which trial courts enjoy in evaluating the competency of a juror and the great deference an appellate court must afford the trial court when reviewing these determinations, a trial court’s determination regarding a cause challenge is not to be overturned in the absence of manifest error. “It is within a trial court’s province to determine whether a challenge for cause is proper, and the trial court's determination of juror competency will not be overturned absent manifest error.” Fernandez v. State, 730 So.2d 277, 281 (Fla.1999); see also Busby, 894 So.2d at 95; Ault, 866 So.2d at 684; Conde, 860 So.2d at 939; Davis, 859 So.2d at 473; Morrison, 818 So.2d at 442; Kimbrough v. State, 700 So.2d 634, 639 (Fla.1997); Smith, 699 So.2d at 636.

Manifest error exists where there is no support in the record for the trial court’s decision or where no reasonable person would take the view adopted by the trial court. Conversely, if there is any record support for the trial court’s decision, the reviewing court must uphold the trial court’s decision to deny a cause challenge. See Busby, 894 So.2d at 95 (holding that the trial court’s determination of juror competency will not be overturned on appeal absent manifest error and that “[t]he decision to deny a challenge for cause will be upheld on appeal if there is support in the record for the decision”); Davis, 859 So.2d at 473; Gore v. State, 706 So.2d 1328, 1332 (Fla.1997); Mendoza v. State, 700 So.2d at 675; Johnson v. State, 660 So.2d 648, 661 (Fla.1995). Likewise, in Waterhouse v. Moore, 838 So.2d 480, 482 (Fla.2002), the Florida Supreme Court upheld the trial court’s determination regarding a cause challenge based upon longstanding law that “a trial court’s ruling on a challenge for cause must be sustained absent an abuse of discretion, and this discretion is only abused where no reasonable person would adopt the view taken by the trial court.....” See also Singleton v. State, 783 So.2d 970, 973 (Fla.2001); Kessler, 752 So.2d at 550; Huff v. State, 569 So.2d 1247, 1249 (Fla.1990).

A review of the portions of the record quoted in the majority opinion, reveals substantial support for the trial court’s decision to deny the cause challenge as to Ms. Alade. In her juror questionnaire, Ms. Alade replied that two of her friends were victims of crimes, one, who was raped and impregnated in high school, and another, a sorority sister who was raped and murdered. At the beginning of voir dire, the trial court read the charges against the defendant and the jury learned that, if selected, they would decide whether Francisco Suri had committed two acts of lewd and lascivious assault upon a child less than twelve years of age. After learning of the charges against the defendant, when asked if either of her friends’ experiences would affect her ability to be fair and impartial,- Ms. Alade unequivocally responded “No.” When asked by the State if she could be fair, she again replied that she believed she could be fair and impartial. When asked about her work experience in the Pediatrics Department at Jackson Memorial Hospital, she explained that, as a resident within the department, she attends to children who have been molested, but again reassured the lawyers and the trial court that she still could be fair and impartial. When she was questioned further about her friends’ experiences sidebar, Ms. Alade was asked whether, as a result of the rape and murder of her medical school sorority sister, she had any “feeling” which would affect her ability to be fair in this case. Once again, without hesitation or equivocation, she responded that she did not. When questioned further about her friend in high school who was raped, she explained that her friend became pregnant by the man who raped her, but did not press charges when she learned that he was in custody on an unrelated case and he agreed to waive his parental rights to the child. When asked if there was anything about this friend’s experiences that would affect her ability to be fair and impartial, she stated “I would hope not.... I consider myself to be pretty level headed. I could separate one from the other. It was a long time ago.” Her only concern and cause for hesitation was if the victim in this case had been impregnated as a result of the molestation. But even then, and it appeared that she was thinking out loud, she replied that she assumed it would not. The prosecutor then asked Ms. Alade if she were to learn that the child was not pregnant, would she have any problem being fair and impartial:

PROSECUTOR: I’m assuming, for a moment, this little seven-year-old was not pregnant. So knowing that, that’s not going to cause you any problems?
MS. ALADE: No, I honestly don’t assume so, but no. As far as I can tell thinking logically, no.

Thus, the record clearly demonstrates Ms. Alade’s unequivocal responses, and her assurances to the trial court and counsel that she could separate her friends’ experiences from her role as a juror, and that she could be a fair and impartial juror. Her sole concern appeared to be if she learned that the child had become pregnant as a result of the molestation, a factor not present in this case. As there is record support for the trial court’s conclusions, manifest error did not occur, and we must affirm.

A trial court’s analysis of a juror’s responses, naturally includes an assessment of the juror’s credibility and it is not the role of the appellate court to second guess the conclusions made by the trial court. “The trial judge’s predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record, and it is the trial judge’s duty to decide if a challenge for cause is proper.” Taylor v. State, 688 So.2d 30, 32 (Fla.1994)(citing Wainwright v. Witt, 469 U.S. 412, 429, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)); see also Castro, 644 So.2d at 990 (finding that whether a juror should be excused for cause lies within the sound discretion of the trial court because the trial court has the opportunity to observe and evaluate the prospective juror’s demeanor and credibility).

The trial court accepted Ms. Alade’s representations that she would be a fair and impartial juror, and both the defense and the State repeatedly stated during oral argument that the record demonstrated that Ms. Alade was being candid and forthright with the trial court and the attorneys, and that she was a very honest and conscientious juror. Because Ms. Alade repeatedly assured the trial court and the attorneys that she would be fair and impartial, and her credibility has not and is not being challenged, it is clear that the trial court did not abuse its discretion in denying defense counsel’s challenge for cause, and because there is record to support for the trial court’s findings, we must affirm as manifest error cannot be found. See Waterhouse, 838 So.2d at 482 (“[A] trial court’s ruling on a challenge for cause must be sustained absent an abuse of discretion, and this discretion is only abused where no reasonable person would adopt the view taken by the trial court....”).

Based on the standard of appellate review requires that we (1) recognize that it is within the trial court’s province to determine whether a challenge for cause is proper; (2) recognize that the trial judge who is present during voir dire is in a far superior position to properly evaluate the responses to questions propounded to the jurors; (3) recognize the discretion and latitude trial courts must be afforded in making this determination; and (4) recognize that convictions are not to be reversed based upon a ruling on a cause challenge absent manifest error, i.e., that there is no record support for the trial court’s ruling and/or that no reasonable person could have concluded as did the trial court, I would affirm even if the defendant had properly preserved his objection to Ms. Alade.

      . For the sake of completeness, we have attempted to include all of Juror Alade's comments.


text:
    Kevin McKENLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-783.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.

      Kevin McKenley, in proper person.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

The defendant, Kevin McKenley, appeals the trial court’s denial of his third motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied relief finding that the defendant’s motion was successive. We affirm.

The defendant pled guilty to two counts of armed robbery with a weapon and was sentenced to ten years in prison.

On July 13, 2005, the defendant filed a motion to withdraw his guilty plea, alleging that his plea was not voluntary and that he was denied effective assistance of counsel. The trial court denied his motion based on the transcript of the plea colloquy which conclusively refuted the defendant’s allegations. In its order denying the defendant’s motion for post-conviction relief, the trial court cited to several passages from the plea colloquy which demonstrated the defendant’s voluntariness to enter the plea and his satisfaction with his attorney.

On December 28, 2005, the defendant filed a second motion for post-conviction relief in which he argued ineffective assistance of counsel. The trial court denied his motion finding that the defendant cannot present grounds for post-conviction relief in a piecemeal fashion. See Francis v. State, 581 So.2d 583 (Fla.1991); Ragan v. State, 643 So.2d 1175 (Fla. 3d DCA 1994)(finding that, to overcome a bar on raising claims of ineffective assistance of counsel in a piecemeal fashion by filing successive motions, the defendant must allege that the grounds asserted in a successive motion were not known and could not have been known at the time of the initial motion).

On February 8, 2006, the defendant filed his third motion for post-conviction relief in which he again alleged that he was denied effective assistance of counsel. The trial court denied it on the ground that it was successive. The trial court also noted that the defendant risks forfeiture of prison gain time as a possible sanction for filing repeated and frivolous motions. See Duncan v. State, 728 So.2d 1237 (Fla. 3d DCA 1999)(cautioning that a prisoner’s gain time is subject to forfeiture if he or she is found to have brought a frivolous suit, action, claim, proceeding, or appeal in any court).

A trial court may dismiss a successive motion for post-conviction relief that had previously been adjudicated on the merits. Christopher v. State, 489 So.2d 22, 24-25 (Fla.1986); see also Fla. R.Crim. P. 3.850. According to Rule 3.850,

[a] second or successive motion [for post-conviction relief] may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

Fla. R.Crim. P. 3.850(f). A trial court may also dismiss a successive motion for post-conviction relief which raises additional grounds for ineffective assistance of counsel, if abuse of process is evident. See Ragan, 643 So.2d at 1176 (citing Card v. Dugger, 512 So.2d 829 (Fla.1987)). To avoid the application of the abuse of process doctrine, the movant must allege that the assertions in the successive motion were not known or could not have been known at the time of the initial motion. Christopher v. State, 489 So.2d 22, 24 (Fla.1986). The movant must also show justification for the failure to raise the asserted issues in the initial motion. Id.

The defendant’s reliance on Mancebo v. State, 931 So.2d 928 (Fla. 3d DCA 2006), is misplaced because it is distinguishable from the instant case. In Mancebo, we found that the bar on filing successive motions for post-conviction relief did not apply to the facts of that case because the initial motion did not indicate that the denial was on the merits. Instead, in its order denying the first motion, the trial court “stated that the allegations of the motion did not constitute legal grounds for relief, and that the motion was insufficient in substance to support the relief prayed.” Mancebo, 931 So.2d at 929. The trial court denied the original motion on the basis of legal insufficiency. Therefore, the defendant’s second motion for post-conviction relief amounted to an amended motion attempting to include legally sufficient claims. Id.

In the instant case, the trial court’s denial of the defendant’s first motion for post-conviction relief was on the merits and the trial court supported its denial with quotes from the plea colloquy transcript. Here, the defendant failed to allege any new grounds for his claim of ineffective assistance of counsel. Therefore, the trial court properly denied the defendant’s motion for post-conviction relief as the motion was successive, and failed to include any new grounds, with justification for the defendant’s failure to present the asserted grounds in the initial motion. See Ragan, 643 So.2d at 1176.

Accordingly, the trial court’s order denying the defendant’s motion for post-conviction relief is affirmed.

Affirmed.


author: SHEPHERD, J.

text:
    CITY OF MIAMI BEACH, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellee.
    No. 3D05-2586.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Akerman Senterfitt and Paul T. Ryder, Jr. and David C. Miller, Miami, for appellant.
    Jack E. Ruby, Assistant General Counsel, for appellee, Commission.
    Before FLETCHER, RAMIREZ and SHEPHERD, JJ.
   SHEPHERD, J.

The narrow question presented in this appeal is whether a labor union must pay the per-page cost stipulated in the Florida Public Records Act for copies of documents requested by it from a public employer for bargaining purposes with the employer. The broader question is whether a collective bargaining agent’s right to be supplied with relevant information for such purposes is a right separate and distinct from that of access to public records under the Act. Since 1982, the Florida Public Employees Relations Commission, one of the appellees here, has so maintained. Hollywood Fire Fighters, Local 3175 v. City of Hollywood, 8 FPER ¶ 13324 (1982). We today disapprove that decision. A labor union seeking information from the employer with whom it is locked in collective bargaining negotiations is not exempt from the Florida Public Records Act.

PROCEDURAL HISTORY

The present case appears before us as an appeal from a final order of the Public Employees Relations Commission. Art. V, § 4(b)(2), Fla. Const.; § 447.504(1), Fla. Stat. (2005). The proceeding commenced with a filing by Appellee, Communications Workers of America, Local 3178, of an unfair labor practice charge against the City pursuant to sections 447.503(1) of the Florida Statutes (2005). Local 3178 alleged the City violated sections 447.501(a) and (c), by charging Local 3178 fifteen cents per page for documents for use in ongoing impasse resolution proceedings between it and the City. The City assessed the copy charge based on section 119.07(4), Florida Statutes (2005). Section 119.07 reads in relevant part:

119.07. Inspection and copying of records; photographing public records; fees; exemptions.—
(l)(a) Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.
(4) The custodian of public records shall furnish a copy or a certified copy of the record upon payment of the fee prescribed by law. If a fee is not prescribed by law, the following fees are authorized:
(a)l. Up to 15 cents per one-sided copy for duplicated copies of not more than 14 inches by 8½ inches;
2. No more than an additional 5 cents for each two-sided copy; and
3. For all other copies, the actual cost of duplication of the public record.

The statute also permits the addition of a special service charge keyed to actual cost if the nature or volume of the public records requested is extensive. See § 119.07(4)(d), Fla. Stat. (2005). The actual per page cost to the City for reproduction of the documents requested by Local 3178 in this case, including labor, is materially less than fifteen cents per page.

In a quasi-judicial hearing before the Commission conducted pursuant to section 447.207(6) of the Florida Statutes (2005), Local 3178 argued that by charging a fee greater than actual cost, the City violated section 447.203(17), Florida Statutes (2005), which includes among a non-exclusive list of indicia of bad faith bargaining by an employer, “(d) Refusing, upon reasonable written request, to provide public information, excluding work products as defined in s. 447.605.” § 447.203(17)(d), Fla. Stat. (2005). As authority for its position, Local 3178 reposed sole reliance upon the Commission’s decision in City of Hollywood. In the final order on appeal before us, the Commission reaffirmed City of Hollywood, stating:

[T]he fact that the Public Records Act allows for a set fee does not persuade us to extend that fee to a union in the exercise of its statutory right to receive copies necessary to fulfill its representational duties as the employees’ exclusive bargaining agent. We believe this right is best protected if burdened by no more than the fee articulated in the Hollywood case [actual cost], subject to an hourly labor cost when the copying requires more than one hour of work.

Commc’n Workers of Am., Local 3178 v. City of Miami Beach, 31 FPER ¶ 213 at 509-10 (2005)(emphasis added). The Commission now intervenes in this case to defend this “policy.”

Since 1982, the Commission has held that when an employee organization makes a request of a public employer for information relevant to its duty as a collective bargaining agent, the request is exempt in all respects from the Florida Public Records Act. The Commission has reasoned:

A bargainer’s right to be supplied with relevant information is a right separate and distinct from that of access to public documents under Florida’s Public Records Act, Chapter 119, Florida Statutes (1981). Certain information relevant to the collective bargaining process, such as work products under Section 447.605(3), may be available to a party under a request pursuant to the collective bargaining law but unavailable to a member of the public pursuant to a public records request. Therefore, a public employer’s compliance with a request under the collective bargaining law cannot be consigned to the processes of Florida’s Public Records Act.

City of Hollywood, 9 FPER ¶ 13324 at 581-82 (internal citations omitted)(emphasis added). The Commission urges that because the matter is a labor matter declared by the Commission to be governed by a provision of what is commonly known as Florida’s Public Labor Relations Act, Chapter 447, Part II, Florida Statutes (2004), we must give deference to the Commission solution or “policy” in making our own analysis. We are not of a mind to allow the Commission decision here to so effortlessly avoid scrutiny.

We begin by pointing out that the right of persons to access public records and right of public employees to collectively bargain are constitutionally based and therefore of equal dignity. See Art. I, § 6, Fla. Const.; Art. I, § 24, Fla. Const. Accordingly, the provisions of the Florida Public Records Act, Chapter 119, Florida Statutes, are not inferior to the provisions of the Florida Public Employees Relations Act, and vice versa. For this reason, we are unable to yield to the Commission’s intimation that Chapter 119 is somehow a poor relation to Chapter 447 of the Florida Statutes.

We also reject the Commission’s argument that because a collective bargaining agent can obtain records for its purposes that may not be available to the general public, all records obtained pursuant to section 447.203(17)(d), Florida Statutes are not exclusively “public records” within the contemplation of Chapter 119 of the Florida Statutes, thus making it illogical to apply Chapter 119 to records so sought. Although a collective bargaining agent may well be entitled to receive records for purposes that a member of the public may not, see, e.g., Local 2358, IBEW v. City of Jacksonville, 7 FPER ¶ 12351 (1981)(union entitled to cost savings study made by employer in preparation for negotiation); City of Pontiac v. Util. Workers Union of Am,., Local 539, AFL-CIO, 16 MERC 57, 64 (Mich. MERC 1981)(merit appraisal data disclosed pursuant to request under Michigan’s collective bargaining act may be unavailable to the general public under Freedom of Information Act), the records are public records. As our supreme court has held, “a public record ... is any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” Shevin v. Byron, Harless, Schaffer, Reid & Assocs., 379 So.2d 633, 640 (Fla.1980)(emphasis added). See also § 119.011(11), Fla. Stat. (2005)(de-fining a public record as anything made or received by any agency)(emphasis added).

Rather, we believe the public employer’s obligation to “provide public information” under Chapter 447 is fully consistent with the bargainer’s obligation to pay the provider a sum not to exceed the statutory maximum established by the legislature to be paid by all citizens of this state if it desires copies courtesy of the provider. In reaching a contrary conclusion, we believe the Commission errs by conflating convenience with obligation. Section 447.203(17)(d) only obligates a public employer to “provide public information”— that is, lay it on the table for inspection and use by the bargaining agent. Local 3178’s contention below distilled was simply that it would be more convenient to receive copies. We do not question the assertion that analysis by Local 3178 of the requested documents would be accomplished more comfortably in their own offices than at City Hall. However, Florida law does not require the City insure Local 3178’s creature comforts. Florida law requires only that relevant information be provided. § 447.203(17)(d).

Because the City met its statutory obligation under Chapter 447 of the Florida Statutes, it is apparent that except in the advocate’s eye of the Commission, there is no conflict between Chapter 447 and Chapter 119 with respect to the cost of providing public records. The public employer’s obligation to provide public information under section 447.203(17)(d) and the statutory obligation to pay for copies under section 119.07(4) can be readily harmonized. One requires public documents to be provided; the other prescribes the charge if the union wishes copies courtesy of the provider. Where two legislative provisions can be reconciled, it is our obligation to do so, and we do so in this case. Agency for Health Care Admin. v. Estate of Johnson, 743 So.2d 83, 87 (Fla. 3d DCA 1999)(“Whenever possible, courts must attempt to harmonize and reconcile two different statutes to preserve the force and effect of each.... There must be hopeless inconsistency before rules of construction are applied to defeat the plain language of one of the statutes.”). Moreover, because the amount that a bargainer may be required to pay for the government service is circumscribed by the same parameters as a similar request by a private citizen, we consider the likelihood of a meaningful unfair labor practice to be more illusory than not.

Finally, it is apparent to us from a review of Chapter 119 of the Florida Statutes that the Florida legislature, as required by Article I section 24(a) of the Florida Constitution, has through Chapter 119 established a pervasive regulatory scheme to assure that “all state, county, and municipal records [be] open for personal inspection by any person.” § 119.01(1), Fla. Stat. (2005). Included is an express, prescribed maximum cost for copies of public records requested from a governmental agency unless otherwise provided by law. We find the legislature has preempted the field in this regard. As expressed by Judge Lehan in his cogent dissent in Tribune Co. v. Camella, 438 So.2d 516, 525-26 (Fla. 2d DCA 1983), adopted by the Florida Supreme Court in Tribune Co. v. Cannella, 458 So.2d 1075, 1076 (Fla.1984):

Under [the preemption] doctrine a subject is preempted'by a senior legislative body from the action by a junior legislative body if the senior legislative body’s scheme of regulation is pervasive and if further regulation of the subject by the junior legislative body would present a danger of conflict with that pervasive regulatory scheme.

As a statutorily established entity, the Public Employees Relations Commission is a “junior body” to the Florida legislature. § 447.205(1), Fla. Stat. (2005). When, as admitted by the Commission, see supra note 2, it seeks to engage in the same type of activity as is within the charge of the Florida legislature, see Art. Ill, § 1, Fla. Const., the state legislature’s express statutory scheme for the provision of public documents to the citizens of this state controls over Commission musings to the contrary.

Should the Commission require further authority to appreciate the error of its reasoning below, it need only look to the statute it is charged to carry out. See Ch. 447, Part II, Fla. Stat. (2005). Section 447.605(3) of that statute provides: “All work products developed by the public employer in preparation for negotiations, and during negotiations, shall be confidential and exempt from the provisions of s. 119.07(1).” § 447.605(3). This is one of hundreds of exemptions peppered throughout the Florida Statutes where disclosure would otherwise be required. See Office of the Attorney General, Govemment-In-The-Sunshine Manual, App. D. (2006)(listing sections of statutes outside Chapter 119 that exempt information from disclosure). The exemption would be unnecessary if, as the Commission contends, “[a] bargainer’s right to be supplied with relevant information is separate and distinct from that of access to public documents under Florida’s Public Records Act.” City of Hollywood, 8 FPER ¶ 13324 at 581-82.

We reverse the decision of the Public Employees Relations Commission.

FLETCHER, J., concurs.

RAMIREZ, J., concurs in result only.

      . Since 1991 or 1992, the City has codified the fifteen-cent-per-page charge in its ordinances. See Op. Att'y Gen. Fla. 85-19 45, 46 (1985)(a municipality may enact an ordinance or administrative regulation establishing a set fee for duplication of public records if the fee does not "change, alter or condition the provisions of ch. 119”).

      . In its answer brief, the Commission advises us that "while not an adversely affected or aggrieved party by its own final agency action, the Commission participates as Appellee because of its interest in defending its policy.” (emphasis added). This uncommon jurisprudential move by the Commission has been sanctioned by the Florida Supreme Court at least "where the order under review has resolved a public labor law issue that has an impact upon other public employees, public employers, and taxpayers.” Pub. Employees Relations Comm’n v. City of Orlando, 452 So.2d 517, 519 (Fla.1984). See also Gaston v. Dep’t of Revenue, 742 So.2d 517, 519 (Fla. 1st DCA 1999)(citing City of Orlando, 452 So.2d at 519)(permitting the Commission to participate as a party in appellate proceedings to review its decisions "upon request or upon the designation of the party seeking review”). Local 3178 has not participated in this appeal.


author: COPE, C.J.

text:
    William BRIMAGE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2374.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.

      Bennett H. Brummer, Public Defender, and Leslie Scalley, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN and SUAREZ, JJ.
   COPE, C.J.

William Brimage appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The question before us is whether defendant-appellant Brimage should be allowed to file a belated Rule 3.850 motion, if he establishes that he was not timely advised of the disposition of his direct appeal. We reverse for further proceedings.

The defendant was convicted of armed robbery in 1990 in Miami-Dade County Circuit Court case number 90-16595 (“the 1990 case”). In January 1991, he was sentenced to life imprisonment. The court also revoked the defendant’s probation in Miami-Dade County Circuit Court cases 88-45148 and 89-31657 (“the probation cases”) and imposed sentence.

In March 1991, the court adjudicated the defendant to be incompetent. The trial court vacated his sentences in the 1990 case and the probation cases. The court committed the defendant for treatment of mental illness. According to the defendant’s 1996 competency evaluation, the defendant is also mildly mentally retarded.

In 1998, after restoration to competency, the defendant was resentenced. The court imposed a term of forty years incarceration in the 1990 case, with concurrent terms of a year and a day in the probation cases. The defendant entered a no contest plea in another pending case, Miami-Dade County Circuit Court case number 90-17346 (“the companion case”), and was sentenced to thirty years concurrent time. The plea agreement provided that the defendant could withdraw the plea of no contest in the companion case if his conviction and sentence in the 1990 case were overturned.

The defendant appealed the 1990 case. This court affirmed without opinion. Brimage v. State, 740 So.2d 546 (Fla. 3d DCA 1999). The assistant public defender filed a motion to withhold the mandate in order to raise a late-discovered issue. The State filed a response in opposition. This court denied the motion and issued the mandate on September 3,1999.

On June 11, 2002 — two years and nine months later — the defendant wrote to the office of the public defender regarding the status of his cases. After researching its closed files, the public defender responded on September 17, 2002. The public defender explained that the appeal had become final with the issuance of the mandate on September 3, 1999. Under the public defender’s normal office procedure, the defendant should have been advised of these developments in 1999. The assistant public defender who had been responsible for the case was no longer with the office. The correspondence file of the public defender did not contain any indication that anyone had transmitted this court’s decision and mandate to the defendant.

The letter advised the defendant that his postconviction remedies included filing a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and a petition alleging ineffective assistance of appellate counsel under Florida Rule of Appellate Procedure 9.141(c). With regard to Rule 3.850, the letter explained that if the defendant did not receive notice of this court’s affirmance of his appeal, then he should argue lack of timely notice as a basis for waiving the two-year time limitation for filing a Rule 3.850 motion.

The public defender’s letter also set forth a potential issue under Rule 3.850, which was the possibility that the trial court may have answered a jury question without the presence of counsel. This was the late-discovered issue that the assistant public defender had attempted to raise in this court in the motion to withhold mandate.

In June 2003, the defendant filed a Rule 3.850 motion. The defendant stated that he was never given timely notice of this court’s decision of his appeal. He attached the public defender’s letter to his motion.

The trial court summarily denied the defendant’s motion, and the defendant has appealed. We appointed the public defender to represent the defendant here.

On the issue of timeliness, so far as the present record shows, the defendant’s two-year time period for filing a Rule 3.850 motion expired before the defendant was notified that his appeal had become final. The mandate issued on September 3, 1999 and the two-year time period expired on September 3, 2001. The defendant was first notified about the disposition of his appeal in September 2002 and he filed the motion now before us in June 2003.

The Florida Supreme Court has held that in some circumstances, a defendant will be entitled to belatedly file a motion for postconviction relief. The court addressed the issue in the context of a claim that the defendant’s attorney had promised to file a Rule 3.850 motion but then allowed the deadline to expire without doing so. Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999). The court said:

We now address the issue regarding the right to belatedly file a motion for postconviction relief. In this Court’s decision in State v. Weeks, 166 So.2d 892, 896 (Fla.1964), we made clear that “[postconviction] remedies are subject to the more flexible standards of due process announced in the Fifth Amendment, Constitution of the United States.” For example, although a prisoner has no Sixth Amendment right to postconviction counsel, in Weeks and Graham v. State, 372 So.2d 1363 (Fla.1979), we held that due process required the appointment of postconvietion counsel when a prisoner filed a substantially meritorious postconviction motion and a hearing on the motion was potentially so complex that the assistance of counsel was needed.
We agree with the district court below that due process entitles a prisoner to a hearing on a claim that he or she missed the deadline to file a rule 3.850 motion because his or her attorney had agreed to file the motion but failed to do so in a timely manner. We hold that, if the prisoner prevails at the hearing, he or she is authorized to belatedly file a rule 3.850 motion challenging his or her conviction or sentence. We also agree with Judge Sharp’s concurring opinion that the prisoner’s claim under these specific circumstances should be presented to the court in a petition for writ of habeas corpus, which would not be barred under rule 3.850(h) because it would come within the final clause thereof. See Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987) (construing a prisoner’s letter to the district court as a habeas petition and finding that the prisoner “might be entitled to file a belated motion for postconviction relief if the actions of her attorney had frustrated her intention to file such a motion in a timely fashion”).
... Steele is entitled to petition the circuit court for a writ of habeas corpus. Upon receiving the petition, the court will conduct a hearing on whether Kehoe undertook to file a rule B.850 motion on Steele’s behalf, but failed to timely file the motion. If Steele prevails at the hearing, he will have the right to belatedly file a rule 3.850 motion.

747 So.2d at 934.

In Kehoe the claim was that counsel undertook to file a Rule 3.850 motion but allowed the time to expire without doing so. The same logic applies here. Here the claim is that counsel had an obligation to notify the defendant of the disposition of his appeal, but the defendant was not notified until the time for filing a Rule 3.850 motion had expired.

It appears that the Second District has allowed a belated appeal under circumstances like those of the present case. See Miller v. State, 805 So.2d 971 (Fla. 2d DCA 2001) (“Because of the erroneous information provided to Miller concerning the status of his convictions and the resultant confusion, we believe that it is appropriate under these extraordinary circumstances to permit Miller to file a belated rule 3.850 motion.”). We conclude that, consistent with Kehoe, the correct procedure is to treat the defendant’s present Rule 3.850 motion as a petition for writ of habeas corpus and conduct a hearing thereon. We remand for that purpose.

The State maintains that the doctrine of laches applies here. See Strong v. State, 851 So.2d 758, 761 (Fla. 2d DCA 2003); see also McCray v. State, 699 So.2d 1366 (Fla.1997). The State argues that the defendant failed to exercise sufficient diligence to determine the status of his direct appeal. Our reversal is without prejudice to the State to raise such defenses as it deems appropriate on remand.

For the stated reasons, we reverse the order now before us and remand with directions for the trial court to treat the defendant’s motion as a petition for writ of habeas corpus under Steele v. Kehoe to determine whether the defendant should be granted leave to file a belated Rule 3.850 motion.

Reversed and remanded for further proceedings consistent herewith.


text:
    Elliot McARTHUR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1094.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Elliot McArthur, in proper person.
    Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. State v. McBride, 848 So.2d 287 (Fla.2003); Pope v. State, 841 So.2d 677 (Fla. 5th DCA 2003).


text:
    Curtis Kendall PERNELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1521.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Curtis Kendall Pernell, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

The defendant appeals the trial court’s denial of his motion for post conviction relief claiming newly discovered evidence. We affirm because the defendant’s claim regarding gain time has been previously litigated, Pernell v. State, 855 So.2d 66 (Fla. 3d DCA 2003), is untimely, and does not qualify as newly discovered evidence. See Fla. R.Crim. P. 3.850; Blanco v. State, 702 So.2d 1250 (Fla.1997).

Affirmed.


text:
    Renoit SAINTELIEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2792.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.

      Renoit Saintelien, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Renoit Saintelien appeals the denial of his motion to correct illegal sentence. Saintelien complains about his sexual predator designation because he alleges that his plea agreement did not call for him being designated a sexual predator. Because the sexual predator designation is not a sentence or ■ punishment, see Walker v. State, 718 So.2d 217 (Fla. 4th DCA 1998), a challenge to a sexual predator designation is not properly raised in a postconviction motion and should be raised in a civil proceeding. Connor v. State, 773 So.2d 1242 (Fla. 4th DCA 2000). The Second District and the Fifth District have held to the contrary. See King v. State, 911 So.2d 229 (Fla. 2d DCA 2005); Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003).

As we did in Brown v. State, 927 So.2d 1024 (Fla. 4th DCA 2006), we again certify conflict with King and Kidd.

Affirmed.

WARNER, POLEN and KLEIN, JJ., concur.


author: SUAREZ, J.

text:
    Arthur W. FOLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1641.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Arthur W. Foley, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   SUAREZ, J.

The appellant claims the trial court lacked subject matter jurisdiction because the State did not file an amended information after orally amending the information. We affirm the trial court’s denial of the 3.800 motion. See State v. Anderson, 537 So.2d 1373 (Fla.1989).


text:
    John W. ROMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1453.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.

      Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Defendant appeals his conviction and sentence for sexual battery and strong arm robbery, claiming error in the admission of hearsay evidence. We reverse.

Defendant was charged and tried for sexual battery with a deadly weapon and strong arm robbery in connection with the assault of the victim K.D., on November 10, 2001. On that day, the victim, a 25-year-old resident of Broward County, came to South Miami to visit her boyfriend. The couple went to several bars and parties where they were drinking. At a Cutler Ridge bar, where they met friends, a dispute arose between the victim and her boyfriend. The boyfriend left. After waiting for a while for one of the friends to take her home, the victim decided to take a bus instead. At a gas station, the victim met a man who said his name was Jose. Jose warned her that she was in a bad neighborhood and told her he would walk her to the bus stop. They then went to an Amoco station where the victim withdrew $20 from an ATM machine. The victim and Jose got on a bus traveling south, although the victim thought she was going north. After ten minutes, Jose told the victim that she had reached her stop. On the pretext of finding a pay phone, Jose lured the victim to the back of a gas station where the assault took place. After her assailant left, the victim made a hysterical call to 911. The victim told the police that the man was wearing a short-sleeve white shirt, but she saw no tattoos on his arms. A videotape from the Amoco station showed the victim with a man fitting the general description given; however, it was not clear enough to determine if the man had tattoos on his arms.

Defendant, who has multiple tattoos on both arms, was arrested four days later. The victim identified defendant as her assailant in both a photo lineup and in court. While testifying about the videotape from the Amoco station, Detective Kraten stated: “I could see her on tape as well as another male who matched the description that she had given me and they were at the counter and obviously conversing ... and from those tapes and speaking to the store [at this point, defense counsel’s hearsay objection was overruled] I was able to obtain the identity of the person who was on the videotape.” The detective testified that defendant had worked at the Amoco station where the videotape was made and was located and arrested at a nearby restaurant where he was then working. Defense counsel moved for a mistrial on the grounds that defendant’s right to confrontation was violated. He argued that the only conclusion that the jury could draw from the evidence was that the Amoco employee, who did not testify, knew defendant and recognized him on the videotape. The motion for a mistrial was denied. In closing, the prosecutor again referred to Detective Kraten’s testimony stating: “He found out that that man, Jonathan Roman used to work at the Amoco. Used to work there at the same gas station where he is caught on tape. Think about it.” ' Defense objection to the argument was again overruled. The jury found defendant guilty as charged.

The trial court erred in admitting the objected-to testimony even though Detective Kraten did not actually repeat the statements made by the Amoco employee. “Where ... the inescapable inference from the testimony is. that a non-testifying witness has furnished the police with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that, the actual statements made by the non-testifying witness are not repeated.” Postell v. State, 398 So.2d 851, 854 (Fla. 3d DCA 1981). See also Keen v. State, 775 So.2d 263 (Fla.2000); Trotman v. State, 652 So.2d 506 (Fla. 3d DCA 1995). We cannot agree with the State’s contention that the objectionable testimony did not furnish evidence of defendant’s guilt or that it was harmless. The only evidence connecting defendant to the crime was the victim’s identification and the videotape from the Amoco station. The victim’s identification was weakened by the fact that she had been drinking extensively prior to the incident. Also,- her description of her assailant, with whom she spent considerable time, did not include the tattoos which would have been visible on an assailant wearing a short-sleeved shirt. The videotape was not clear enough for someone unfamiliar with the defendant to identify him. However, Detective Kraten indicated that from the tape and his conversation with the Amoco employee, who knew the defendant, the detective was able to identify the defendant. The only reasonable inference, therefore, is that the Amoco employee recognized' defendant on the videotape and supplied the detective with his name and location. Clearly, the admission of this hearsay evidence was improper.

Reversed and remanded for a new trial.


text:
    Wesley D. TODD, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4120.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.
    Carey Haughwout, Public Defender, Anthony Calvello, Assistant Public Defender, West Palm Beach, and Wesley D. Todd, Bonifay, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979). Affirmance is without prejudice to appellant’s right to seek relief under Florida Rule of Criminal Procedure 3.850, if appropriate.

POLEN, FARMER and KLEIN, JJ., concur.