author: ALTENBERND, Judge.

text:
    Valerie KELLEY, Appellant, v. Hazen Peter KELLEY, Appellee.
    No. 2D06-712.
    District Court of Appeal of Florida, Second District.
    Dec. 6, 2006.
    Rehearing Denied Jan. 10, 2007.
    Jean Marie Henne, Winter Haven, for Appellant.
    T.W. Weeks, III, Lakeland, for Appel-lee.
   ALTENBERND, Judge.

Valerie Kelley (the Wife) appeals a final judgment of dissolution of marriage, challenging the trial court’s failure to award her a greater amount of monthly permanent periodic alimony and the full amount of the reasonable attorneys’ fees she incurred in the litigation. Based upon the evidence presented to the trial court, we conclude the trial court abused its discretion in failing to award the Wife a greater amount of permanent periodic alimony. We therefore reverse and remand for further proceedings, at which time the Wife’s request for attorneys’ fees should also be reconsidered.

The parties were married for over twenty-nine years. They have two grown children. They had accrued over $1.6 million in assets over the course of the marriage, which the court equitably distributed in the final judgment. The majority of the Wife’s share of equitable distribution consisted of the family home valued at $240,000, the contents of that home, and a retirement account worth $245,000. It was undisputed that the Wife was a homemaker throughout the marriage and provided the primary care for the children when they were young. The Wife was unemployed at the time of the hearing and had not been employed for over twenty-three years. She was fifty-six years old.

The Husband had been the primary wage earner throughout the marriage. At the fmal hearing, he testified that he earned gross income of $153,367 ($12,-780.58 per month) and net income of $137,533 ($11,461.10 per month) in 2004. Although the Husband feared his income might decrease in the future, there was no specific evidence that this would occur. The Husband, who was fifty-two years old, testified that he hoped to refee at age fifty-five.

The Husband conceded that the Wife was entitled to permanent periodic alimony. The dispute at trial centered on the monthly amount of such support. The Wife’s financial affidavit listed total monthly expenses of $5821 per month. Because the Husband earned a net monthly income of almost two times this amount, the focus was primarily on the reasonableness of the Wife’s needs, not the Husband’s ability to pay.

The Wife conceded that although she had thus far had no luck finding employment, she could become employed at minimum wage. In addition, the Wife acknowledged that some of the assets distributed to her could produce income to meet her needs. Based upon these two sources, the Wife estimated that she could provide $2450 toward her own support. After considering the income tax implications regarding the payment of alimony, the Wife calculated that she would need $3883.10 per month in permanent periodic alimony to meet the remainder of her expenses.

The Husband presented testimony calling into question specific expenses listed on the Wife’s financial affidavit. For example, he testified that the Wife should need $60 less than the amount listed for lawn care, $25 less for pool care, and $192 less for health insurance. He noted that a $280 per month expenditure for counseling could be avoided if the Wife chose a different provider from within the Wife’s health insurance plan. He also suggested that the Wife unreasonably traded in a 1994 vehicle and acquired a monthly car payment of approximately $500. He made more general complaints about the amount she listed for gas expenses, home repair, and personal grooming expenses, but he provided no testimony on what a reasonable monthly expense would be for these necessary items.

The trial court indicated that it felt some of the Wife’s expenses were inflated. Without indicating what specific expenses were unreasonable, or what amounts were appropriate based upon the evidence presented, the trial court awarded the Wife $1585 per month in alimony. This, coupled with the imputed income the Wife conceded she could earn by working full-time at minimum wage and from collecting-fee income produced by her assets, provided the Wife gross income of $4035. It leaves the Husband with gross income of $11,195 — excluding the income he can indisputably earn from his share of the equitable distribution of assets.

We recognize, of course, that the resulting difference in the parties’ income, in excess of $7000 per month, while facially very troubling, is not dispositive of this issue. However, even if the trial court had accepted in its entirety the monthly expense figures suggested by the Husband, the Wife had unchallenged needs in excess of $4500 per month. Nevertheless, the trial court awarded an amount of money that would leave the Wife, under the best of circumstances, with a gross income — not net income — of approximately $4000. It is obvious that the Wife will be compelled to either radically alter her standard of living or dissipate assets that will be needed for her retirement. This decision was made in the context of a dissolution proceeding in which the Husband is already suggesting that he will attempt early retirement at age fifty-five.

A primary purpose of permanent, periodic alimony is to allow the requesting spouse, consistent with her needs, to maintain the standard of living established by the parties during the marriage. See Griffin v. Griffin, 906 So.2d 386, 388 (Fla. 2d DCA 2005).

“The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.” Canakaris [v. Canakaris], 382 So.2d [1197,] 1201 [ (Fla.1980) ]. However, a trial court must be careful that “neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’ ” Id. at 1204.

Cleary v. Cleary, 872 So.2d 299, 304 (Fla. 2d DCA 2004).

Based upon the evidence presented, the trial court abused its discretion in awarding an amount of alimony that left the Wife substantially unable to meet her basic needs, let alone enjoy the standard of living she enjoyed during the marriage. We therefore reverse the award of permanent periodic alimony and remand for the trial court to award an amount that is commensurate with the Wife’s needs.

The Wife also challenges the trial court’s decision to award her only a portion of the reasonable attorneys’ fees she incurred during the proceedings. If we were not reversing the alimony portion of this judgment, we would still have concluded that the trial court abused its discretion in failing to award the Wife all of the attorneys’ fees the Wife reasonably incurred based upon the substantial financial disparity that remained under the provisions of the final judgment. See Anciaux v. Anciaux, 666 So.2d 577 (Fla. 2d DCA 1996). On remand, after the court reconsiders and establishes an appropriate amount of permanent periodic alimony, the court must address anew the Wife’s request for a contribution to her attorneys’ fees. However, the propriety of any new award will vary depending upon the trial court’s decision regarding alimony.

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.

      . Because a portion of the assets distributed to the Wife would require a penalty if she withdrew the funds prior to retirement, the Husband's equitable distribution might produce more income available to him prior to his reaching traditional retirement age.

      . We do not question the wisdom of the Wife's demonstration of good faith in making these tactical concessions, even though a trial judge would not have been required to make comparable factual findings or conclusions of law based upon the evidence presented.

      .The Husband drives a 2001 Ford F150 truck, on which no money is owed.

      . Whether a voluntary early retirement on the part of the Husband in the future would permit him to avoid or reduce his support obligations will depend upon the analysis in Pimm v. Pimm, 601 So.2d 534 (Fla.1992); see also Rogers v. Rogers, 746 So.2d 1176 (Fla. 2d DCA 1999), disapproved on other grounds, Acker v. Acker, 904 So.2d 384 (Fla.2005).

      . If the parties’ circumstances have not changed, the trial court may be able to address these issues without the need for further evidence. Hopefully, the parties can streamline the process of providing any additional evidence if such evidence is truly needed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lester B. SHEPARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0196.
    District Court of Appeal of Florida, First District.
    Aug. 27, 2007.
    Lester B. Shepard, pro se, Appellant.
    Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He alleges that his sentence is illegal under Heggs v. State, 759 So.2d 620 (Fla.2000). Because the record does not conclusively refute the appellant’s claim, we reverse.

In order to state a cognizable claim under Heggs, one must allege that the offense at issue was committed within the window period set out in Trapp v. State, 760 So.2d 924, 928 (Fla.2000), and that the resulting sentence constitutes a departure from the 1994 sentencing guidelines. See Daniels v. State, 771 So.2d 57, 57-58 (Fla. 2d DCA 2000). The motion must also include the date of the offense. See Smith v. State, 765 So.2d 308 (Fla. 5th DCA 2000). Appellant’s motion contains the required allegations and is, therefore, facially sufficient. However, the trial court denied the motion without any record attachments.

We therefore reverse the trial court’s summary denial of the appellant’s motion to correct an illegal sentence and remand for the trial court to attach portions of the record that conclusively refute the appellant’s claim or to re-sentence the appellant as the record dictates.

REVERSED AND REMANDED.

BARFIELD, DAVIS, and LEWIS, JJ., concur.


text:
    Eon G. COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5635.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2007.
    Rehearing Denied Nov. 7, 2007.
    Nancy A. Daniels, Public Defender, Joel Arnold and Archie F. Gardner, Jr., Assistant Public Defenders, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Eon G. Cooper appeals an order denying his motion to correct sentencing error which was filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Cooper argues that the trial court erred in not correcting his sentence to reflect credit for time he served in the Jackson County jail and time served in the Broward County jail. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

Appellant was convicted of grand larceny in Jackson County and, on March 9, 2004, he was sentenced to five years’ probation, with the special condition that he serve 90 days in jail. He was given 42 days’ jail time credit. On March 28, 2006, the appellant was arrested in Broward County. He was in the custody of the Broward County jail on the new charges from March 28, 2006, until he was transferred to the Jackson County jail on September 7, 2006. The warrant for appellant’s violation of probation (VOP) in the Jackson County case was served on September 8, 2006. Because of his arrest on the new charges and other violations of the conditions of his probation, the appellant’s probation was revoked. On October 20, 2006, the circuit court imposed a fifteen-month prison sentence, with credit for 90 days’ jail time served. According to the jail records, the appellant was in the Jackson County jail November 5 and 6, 2003, from Januaiy 25 to April 2, 2004, and from September 7 to October 20, 2006.

The appellant appealed and filed a 3.800(b)(2) motion to correct sentencing error. In his motion, he contended that he was entitled to 115 days of credit for time served in Jackson County, instead of the 90 days reflected in the sentencing order, and that he should be given credit in the instant case for the seven months he spent in the Broward County jail. The trial court accepted the argument of the State that the appellant had been given credit for 132 days (90 days + 42 days). Accordingly, although the court recognized the appellant had served more than 90 days in jail, the court denied the motion, reasoning that the appellant had already received more jail time credit than he was due.

The State concedes that the appellant should be given credit for more than 90 days served and submits that the sentencing documents should correctly reflect the number of days the appellant has served in the Jackson County jail. In Sinks v. State, 691 So.2d 1202, 1204 (Fla. 4th DCA 1997), the State similarly conceded that the trial court had incorrectly calculated the amount of credit for time served and that the written statement on record did not reflect the correct total. The court directed that, on remand, the trial court should correct the written record to reflect the correct amount of credit for time spent. Id.; See also Hough v. State, 671 So.2d 889, 840 (Fla. 2d DCA 1996)(reeog-nizing in a similar situation that a defendant’s sentencing documents need to reflect award of unforfeited prison credit).

As for the time appellant spent in the Broward County jail, he relies on Kendrigan v. State, 941 So.2d 529 (Fla. 4th DCA 2006) for his contention that he is entitled to credit in this proceeding for the time served in the Broward County jail. However, Kendrigan is inapposite as it awarded credit for jail time from the date of arrest for the new offenses because the new offenses constituted the basis for revoking probation. In this case, appellant’s probation was revoked based on his arrest for new offenses and other violations of the conditions of his probation. More on point is this court’s decision in Hardenbrook v. State, 953 So.2d 717, 717-718 (Fla. 1st DCA 2007). There, we held that credit for jail time spent in another county must be given only when the sentences run concurrently. Here, appellant makes no argument that the Jackson County and Broward County sentences will run concurrently.

Further, appellant is not entitled to credit for time served in Broward County because the warrant for VOP was not executed until September 8, 2006. Gethers v. State, 838 So.2d 504, 505 (Fla.2003)(“absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.”) Thus, we affirm that portion of the order on appeal.

As to the jail credit for time served in Jackson County, we reverse and remand for further proceedings. On remand, the trial court shall correct the appellant’s sentence to reflect the amount of jail time served in the Jackson County jail. Griffin v. State, 828 So.2d 1087, 1088 (Fla. 1st DCA 2002)(stating that the trial court is required to correct a defendant’s sentence to award the full amount of jail credit earned).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

KAHN, BENTON, and VAN NORTWICK, JJ., concur.

      . We do not address the dispute between the parties whether the Jackson County jail time credit is 112 or 115 days, as the trial court never addressed this issue.


author: LEWIS, J.

text:
    Joshua Lee WATTERS, Jeremy Christian Watters, and Jessica Lauren Watters, Appellants, v. WALGREEN COMPANY, a foreign profit corporation, and Tonya M. Peters n/k/a Tonya M. Pearson, Appellees.
    No. 1D06-3742.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2007.
    Rehearing Denied Oct. 22, 2007.
    Carl Scott Schuler and Brian J. Lee of Law Offices of Carl Scott Schuler, P.A., Jacksonville, for Appellants.

      Joseph B. Stokes, III and Travase L. Erickson of Saalfield, Shad, Jay & Stokes, P.A., Jacksonville, for Appellees.
   LEWIS, J.

Appellants, Joshua, Jeremy, and Jessica Watters, seek review of a final summary judgment in favor of Appellees, Walgreen Co. and Tonya M. Peters, n/k/a Tonya M. Pearson, on Appellants’ claim of negligent infliction of emotional distress. Appellants contend the trial court erred when it entered summary judgment against them on the sole basis that their lack of a “legal familial relationship” with the decedent, their stepfather, barred their claim as a matter of law. We agree. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Appellants’ stepfather died after overdosing on prescription pain medication. They filed suit for negligent infliction of emotional distress, alleging Appellees caused their stepfather’s death by negligently providing incorrect instructions with the medication. Appellants allege that Joshua and Jeremy Watters, along with them mother, discovered the decedent’s body and suffered emotional pain, mental anguish, and emotional distress as a result. They allege that Jessica Watters suffered similarly when she learned of her stepfather’s death while she was away at summer camp.

Appellants’ mother, Doris Marie Veronica Smith, testified via deposition regarding the relationship between Appellants and them stepfather. She testified that Appellants’ stepfather participated in family activities with Appellants, and in particular, noted that when the decedent’s biological son visited, the two did not engage in separate activities from the rest of the family. She testified that the decedent referred to Jessica Watters as “[his] baby” and his “little girl.” According to Ms. Smith, Jessica referred to the decedent as “Daddy.” Similarly, Ms. Smith testified that Joshua Watters spoke at the decedent’s funeral, saying, “My dad was a dad when he didn’t have to be.”

Appellees filed a motion for summary judgment. They alleged Appellants were not legally entitled to maintain a cause of action for negligent infliction of emotional distress because they had not set forth any of the following: sufficient involvement in the accident, physical injuries resulting from psychological trauma, or a legally sufficient relationship with the decedent. At the hearing on Appellees’ motion, arguments centered on the relationship element only. Following the hearing, the trial court entered summary judgment in favor of Appellees on the sole basis that Appellants’ lack of a blood or adoptive relationship with their stepfather precluded their claim. In granting summary judgment, the trial court focused on the particular legal title attached to their relationship, finding that the stepparent-stepchild relationship could not support a cause of action for negligent infliction of emotional distress. This appeal followed.

A party seeking summary judgment in a negligence action has a more onerous burden than that borne in other types of cases. Cassoutt v. Cessna Aircraft Co., 660 So.2d 277, 281 (Fla. 1st DCA 1995) (citations omitted). A trial court must draw all reasonable inferences in favor of the non-moving party when ruling upon a motion for summary judgment. Id. (citation omitted). “Summary judgment should be granted cautiously, with full recognition of the right of a litigant to a jury trial on the merits of his cause.” Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1096 (Fla. 1st DCA 1999). If the record reflects even a possibility of a material issue of fact, then summary judgment must be denied. Id. (citation omitted). This Court reviews the trial court’s judgment de novo. See Noack v. Blue Cross & Blue Shield of Fla., Inc., 859 So.2d 608, 609 (Fla. 1st DCA 2003); Menendez v. Palms W. Condo. Ass’n, 736 So.2d 58, 60 (Fla. 1st DCA 1999).

Generally, Florida follows the “impact rule,” which provides that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.” R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995) (quoting Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992)). However, in Champion v. Gray, 478 So.2d 17, 20 (Fla.1985) (receded from on other grounds), the Florida Supreme Court recognized an exception to the requirement that plaintiffs sustain physical impact during the incident giving rise to the cause of action. To qualify for the exception, plaintiffs must satisfy the following elements:

(1) the plaintiff must suffer a physical injury; (2) the plaintiffs physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (4) the plaintiff must have a close personal relationship to the directly injured person.

Zell v. Meek, 665 So.2d 1048, 1054 (Fla.1995) (restating the Champion test). When the Champion court crafted this exception, it was aware that allowing claims based on psychic trauma would heighten the risk of fraudulent lawsuits. See id. at 19. However, it found the exception was necessary because harsh application of the impact rule would deny compensation for meritorious claims. See id. at 18-19. Thus, this exception was the result of an effort to strike a balance between these competing considerations and still allow recovery for reasonably foreseeable plaintiffs.

The Champion court determined that the foreseeability question centered on the plaintiffs involvement in the incident giving rise to the cause of action, including the potentially dispositive question of whether the plaintiff suffered physical injury resulting from psychological impact, and his or her relationship to the directly injured person. See id. at 19 (setting forth the Champion test in terms of foreseeability). The Champion court chose not to focus on the particular label attached to a relationship. It was concerned with finding a “close relationship” in the subjective sense, as opposed to “the absence of any relationship or the presence of only a distant relationship.” Id. at 19. In fact, the court observed, “A child, a parent, or a spouse would qualify; others may or may not, depending upon their relationship and the circumstances thereof.” Id. at 20.

In Zell, the court adopted portions of Justice Alderman’s Champion concurrence, which emphasize in no uncertain terms that the relationship element should be “closely scrutinized on a case-by-case basis.” Zell, 665 So.2d at 1052 (quoting Champion, 478 So.2d at 21-22 (Alderman, J., concurring)). In particular, Justice Alderman noted that the Champion court was “unable to establish a rigid hard and fast rule that would set the parameters for recovery for psychic trauma in every case.” Id. While this observation was pertinent to all four elements of the Champion test, he highlighted the fact that the court had not provided an exhaustive list of qualifying relationships. Id. Instead, he explained, whether a particular relationship qualifies for the exception will depend on the facts of the particular case in which the question arises. See id. Based on the language adopted in Zell, it is clear that the relationship determination is typically a question of fact.

In the instant case, the trial court construed the relationship element as requiring a “legal relationship” between the plaintiff and the directly injured person. On appeal, in support of the trial court’s ruling, Appellees rely on Ferretti v. Weber, 513 So.2d 1333 (Fla. 3d DCA 1987) (affirming dismissal of a claim for negligent infliction of emotional distress where “[tjhere was no marriage and therefore no legal relationship between the plaintiff and the deceased”), and Reynolds v. State Farm Mutual Automobile Insurance Co., 611 So.2d 1294 (Fla. 4th DCA 1992)(holding the plaintiff did not qualify for the Champion exception because she could not show that she had a familial relationship as well as an especially close emotional attachment to the decedent). In Reynolds, the Fourth District Court of Appeal emphasized the fact that the Champion court used the phrase “close family member.” Reynolds, 611 So.2d at 1296. However, the Champion court used this language only to highlight the important public policy considerations driving the exception. See Champion, 478 So.2d at 18-19. In doing so, it pointed out that harsh application of the impact rule would intolerably preclude recovery even for plaintiffs who suffered physical injuries caused by the psychological trauma of witnessing the death or significant injury of a close family member. Id. At the same time, the word “family” is strikingly absent from the holding in Champion and its restatement in Zell. See id. at 20; Zell, 665 So.2d at 1055.

Appellees contend the Florida Supreme Court’s citation of Reynolds in R.J. v. Humana of Florida, Inc., 652 So.2d 360, 362 (Fla.1995), indicates agreement with its reasoning. However, the Humana court cited Reynolds only for its articulation of the impact rule. See Humana, 652 So.2d at 362. In Humana, the court did not address the relationship element except to state the Champion exception to the impact rule. See id. at 363. Although the Humana court used the phrase “close family member,” it did not discuss the relationship element, as it was irrelevant to the case. See id. Therefore, we reject Appellees’ contention that the Florida Supreme Court has approved the requirement of a legal relationship as an element of the Champion exception.

Appellees’ position is inconsistent with the “case-by-case” consideration of the relationship element urged by the Florida Supreme Court. The court expressly intended to have the “full contours” of this cause of action “shaped by the common law practice of considering each case on its merits.” Zell, 665 So.2d at 1052. As noted by Judge Farmer in a well-reasoned dissenting opinion in Reynolds, the Champion opinion envisioned “a category of persons joined by ties beyond an entirely formal, legal relationship formed by blood, or for that matter, marriage vows.” Reynolds, 611 So.2d at 1299-1300 (Fanner, J., dissenting). Judge Farmer opined that the court intended to leave open the potential of recovery for plaintiffs whose relationship to a decedent was “more than incidental, yet less than solemn.” Id. at 1300. The Reynolds majority’s contrary interpretation cut off recovery for a plaintiff even though the decedent’s mother testified that but for the accident, the plaintiff and decedent would have married. 611 So.2d at 1295. Notably, the supreme court had an opportunity to modify the Champi on test when it set out the elements of the exception in Zell. Even though the Zell decision was rendered after Ferretti, Reynolds, and Humana, the court chose not to recognize a rigid “legal relationship” requirement in its articulation of the exception. See Zell, 665 So.2d at 1054.

Relying on the Ferretti holding, the trial court neglected to make a finding as to whether Appellants had a close emotional attachment to their stepfather based on the particular circumstances of them relationship. On the facts before us, we conclude that the relationship element of the Champion exception does not preclude Appellants from an opportunity to seek relief on their claim. However, we express no opinion as to whether Appellants meet the remaining requirements of the Champion exception.

For these reasons, we disagree with the interpretations of the Champion test given by the Third and Fourth District Courts in Ferretti and Reynolds, to the extent that they require a formal “legal relationship” as an element of the exception to the impact rule. Accordingly, we REVERSE, REMAND and CERTIFY CONFLICT.

WEBSTER and THOMAS, JJ., concur.

      . Because neither the trial court nor the parties addressed the other three elements, we do not consider them here.

      . In any event, the "legal relationship'’ requirement would prove unworkable, as we have found no relevant definition of a "legal relationship.” Appellees contend the Florida Wrongful Death Act's definition of "survivors” should govern. See § 768.18(1), Fla. Slat. (2005). However, application of a statutory definition for a statutory cause of action would be inappropriate for this common law claim.


author: SILBERMAN, Judge.

text:
    Jose MARRERO, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-19.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 2007.
    Rehearing Denied Nov. 20, 2007.
   SILBERMAN, Judge.

Jose Marrero appeals the summary denial of his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court concluded that Marrero’s motion was untimely. We affirm.

In December 2001, the trial court sentenced Marrero as a habitual felony offender (HFO) to thirty years’ imprisonment for attempted trafficking in heroin and fifteen years’ imprisonment for possession of heroin with intent to sell. This court affirmed the convictions and sentences. See Marrero v. State, 840 So.2d 238 (Fla. 2d DCA 2003) (table decision). Our mandate issued in March 2003.

Marrero timely filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(c), alleging ineffective assistance of appellate counsel in his direct appeal. He claimed that counsel was ineffective for failing to argue that the trial court convicted him of a nonexistent crime and that his HFO sentence was illegal. This court found the first claim to be without merit but granted the petition as to the second claim. The court concluded that “[b]e-cause Marrero’s HFO sentence would have required reversal had the issue been raised on direct appeal, we reverse his sentence and remand for resentencing.” Marrero v. State, 864 So.2d 1131, 1132 (Fla. 2d DCA 2003). In June 2004, the trial court resentenced Marrero. Marrero appealed, and this court affirmed the new sentence. See Marrero v. State, 912 So.2d 1229 (Fla. 2d DCA 2005) (table decision). Our mandate issued in November 2005.

In March 2006, Marrero filed a rule 3.850 motion, asserting three claims seeking relief from his convictions. He alleged that his conviction of attempted trafficking in heroin was unlawful, that his trial counsel was ineffective in failing to raise the defense of entrapment, and that trial counsel was ineffective in failing to argue and move for dismissal of the attempted trafficking offense based on the defense of abandonment.

The postconviction court, in the order before us for review, summarily denied the motion as untimely. The court determined that Marrero’s judgment and sentence became final in March 2003 following the conclusion of his initial appeal and that he had until March 2005 to timely file a post-conviction motion attacking his convictions. The postconviction court found that there were no applicable exceptions to 'extend the two-year period. The court cited to Joseph v. State, 835 So.2d 1221 (Fla. 5th DCA 2003), and stated that Marrero’s re-sentencing and the entry of an amended judgment and sentence in June 2004 did not extend the time for Marrero to file his postconviction motion.

We agree with the postconviction court's conclusion. Subject to certain exceptions not applicable here, rule 3.850(b) provides a two-year period for the filing of a motion for postconviction relief “after the judgment and sentence become final in a noncapital case.” A judgment and sentence become final for purposes of the rule “when any such direct review proceedings have concluded and jurisdiction to entertain a motion for post-conviction relief returns to the sentencing court.” Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987); see also Cardali v. State, 794 So.2d 719, 721 (Fla. 3d DCA 2001) (citing Ward). Under rule 3.850, Marrero’s judgment and sentence became final in 2003 when his direct appeal concluded. At that time, jurisdiction to entertain a motion for post-conviction relief returned to the sentencing court. See Ward, 508 So.2d at 779.

When a claim of ineffective assistance of appellate counsel is successful, the remedy is to award the petitioner a new appeal in order that the appellate court may determine the merits of an issue that should have been raised in the original direct appeal. See Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985). In resolving Marrero’s claim of ineffective assistance of appellate counsel, this court granted relief solely as to his HFO sentence for attempted trafficking. Marrero, 864 So.2d at 1132.

There was no impediment to Mar-rero filing his rule 3.850 motion alleging ineffective assistance of trial counsel during the two-year period beginning in March 2003, after his direct appeal was concluded. His filing of a petition alleging ineffective assistance of appellate counsel did not deprive the postconviction court of jurisdiction to consider any rule 3.850 motion that he might have filed. See Gawronski v. State, 801 So.2d 211, 211 (Fla. 2d DCA 2001) (stating “that the pendency of the rule 9.141(c) petition did not deprive [the postconviction court] of jurisdiction to entertain the rule 3.850 motion”).

Similarly, had Marrero timely filed a rule 3.850 motion, he would not have been precluded from also timely filing a rule 9.141(c) petition. As the supreme court concluded in Francois v. Klein, 431 So.2d 165, 166 (Fla.1983), because a claim of ineffective assistance of trial counsel is necessarily separate and distinct from a claim of ineffective assistance of appellate counsel, the pendency in one court of one kind of claim does not deprive the other court of jurisdiction to proceed on the other claim.

We have found no authority stating that the filing of a rule 9.141(c) petition alleging ineffective assistance of appellate counsel tolls the time for filing a rule 3.850 motion. Had Marrero sought relief under both rules, each court would have had jurisdiction to consider his separate claims. See Francois, 431 So.2d at 166; Gawronski, 801 So.2d at 211. In Joseph, cited by the postconviction court, the Fifth District observed that the two-year limitation contained in rule 3.850 “is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered.” 835 So.2d at 1222 n. 3. Although a rule 9.141(c) petition alleging ineffective assistance of appellate counsel is filed in the appellate court rather than the trial court, we conclude that such a petition does not toll the two-year limitation contained in rule 3.850.

In summary, there was no basis for Marrero to delay seeking relief under rule 3.850 following the conclusion of his original appeal in 2003. The fact that his rule 9.141(c) petition resulted in bis being re-sentenced on one of his convictions did not reopen the expired time period for filing his rule 3.850 motion as to matters that he could have raised during the two-year period beginning in March 2003.

The result that we reach is consistent with the rationale behind the adoption of rule 3.850. As the supreme court stated in Johnson v. State, 536 So.2d 1009, 1011 (Fla.1988),

The credibility of the criminal justice system depends upon both fairness and finality. The time limitation of rule 3.850 accommodates both interests. It serves to reduce piecemeal litigation and the assertion of stale claims while at the same time preserves the right to unlimited access to the courts where there is newly discovered evidence or where there have been fundamental constitutional changes in the law with retroactive application.

See also State v. Green, 944 So.2d 208, 217 (Fla.2006) (discussing the adoption of the time limitation contained in rule 3.850 and repeating the observation that “ ‘[t]here is no reason why a defendant, through the exercise of due diligence, cannot determine his basis for collateral attack during that period of time’ ” (quoting McCrae v. State, 437 So.2d 1388, 1391 (Fla.1983) (Alderman, C.J., concurring in result only))); Baker v. State, 878 So.2d 1236, 1238-44 (Fla.2004) (explaining the history of rule 3.850).

Accordingly, we affirm the order summarily denying Marrero’s postconviction motion.

Affirmed.

ALTENBERND and VILLANTI, JJ., Concur.

      . We also note that Marrero did not seek an extension of the two-year deadline for filing a rule 3.850 motion. See State v. Boyd, 846 So.2d 458, 459-60 (Fla.2003) (holding that “the Florida Rules of Criminal Procedure allow a court to extend the two-year deadline for seeking postconviction relief” but adding that such an extension of time “is not designed to indefinitely expand the two-year deadline, but only to afford a defendant a short period of extra time to file the motion where good cause is shown”).

      . Rule 9.141(c) also provides a mechanism for an individual to seek a belated appeal. We do not address whether the analysis here would equally apply to a case involving a petition for belated appeal as opposed to a petition alleging ineffective assistance of appellate counsel.


author: SALCINES, Judge.

text:
    David Lee SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1347.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2007.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

David Lee Smith appeals his conviction for disorderly conduct and the consecutive habitual felony offender sentences imposed for two counts of battery on a law enforcement officer. We affirm in part, reverse in part, and remand for resentencing.

The events leading to Smith’s convictions commenced on April 21, 2004, when he visited a bank in order to secure a Small Business Administration Loan. Smith was informed by the assistant bank manager that in order to qualify for such a loan it was necessary that he have an existing business. In response, Smith began to use profanity directed at the bank and at the assistant manager. Smith also accused the assistant manager of stealing his pen. The assistant manager told Smith he would have to stop cursing or he would have to leave the bank. Smith requested that the assistant manager call the police, and this was done.

While waiting for the police to arrive, Smith continued to curse loudly and the assistant manager stood between Smith and the customers standing in line to see the bank’s tellers. The assistant manager testified that he walked “slowly trying to get towards the front door, taking a step at a time and [Smith] would kind of follow.” The bank was relatively busy, and the customers could hear Smith’s verbal abuse of the assistant manager. The assistant manager testified that “there were a lot of comments made afterwards on the language that was used.” There was no testimony that the customers reacted in any other manner to Smith’s tirade.

By the time the bank manager and Smith reached the front door, Officer Jennifer Elrod of the Winter Haven Police Department arrived. Smith continued to curse and then directed his comments at the police officer. Smith straddled his bicycle located outside the bank. According to the officer, Smith was “very loud and very obnoxious.” Officer Elrod testified that she gave Smith the options either to leave the area or to be arrested. According to her report he responded in very vulgar and threatening terms. Although she repeated the options available to him, Smith refused to leave the area, and Officer Elrod called for a back-up officer. No testimony was presented indicating that the general public outside the bank had any reaction to Smith’s statements to the police officer.

When Officer Monty Taylor arrived, Smith was informed that he was going to be placed under arrest. The officers requested that he dismount from the bicycle. When Smith refused to comply, Officer Elrod grabbed Smith by the arm in an attempt to remove him from the bicycle. Smith “tensed up” in order to stay on the bicycle. At that point, Officer Taylor also grabbed Smith by the arm, and the two officers pulled him from the bicycle. While the officers attempted to restrain Smith, he grabbed Officer Taylor by his forearm in “an aggressive manner” causing an abrasion and a minor cut to Officer Taylor’s forearm. Additionally, when grabbing Officer Taylor, Smith threw his elbow back and hit Officer Elrod on the side of her face. Subsequently, Smith was subdued by the two officers, and he was placed in handcuffs.

While the foregoing evidence .clearly demonstrates that Smith committed the offense of battery on each of the law enforcement officers, the evidence does not support the conviction for disorderly conduct for Smith’s actions and words inside or outside the bank. Section 877.03, Florida Statutes (2003), defines the offense:

Breach of the peace; disorderly conduct. Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree....

The actions prohibited by the statute are not clearly delineated, and over time there have been numerous constitutional challenges to section 877.03 based on vagueness. In State v. Saunders, 339 So.2d 641, 644 (Fla.1976), the supreme court discussed the prior constitutional challenges to the statute and concluded:

In light of these considerations, we now limit the application of Section 877.03 so that it shall hereafter only apply either to words which “by their very utterance ... inflict injury or tend to incite an immediate breach of the peace,” White v. State, 330 So.2d [3, 7 (Fla.1976) ]; See Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others. We construe the statute so that no words except “fighting-words” or words like shouts of “fire” in a crowded theatre fall within its proscription, in order to avoid the constitutional problem of overbreadth, and “the danger that a citizen will be punished as a criminal for exercising his right of free speech.” Spears v. State, supra, 337 So.2d [977, 980 (Fla.1976) ]. With these two exceptions, Section 877.03 should not be read to proscribe the use of language in any fashion whatsoever.

The facts involved in the present case do not meet the limited application of section 877.03 as dictated by the supreme court in Saunders. This court reached the same conclusion in Barry v. State, 934 So.2d 656, 659 (Fla. 2d DCA 2006), when it was confronted with an incident that is factually similar to the present case. In that case, the father of a child was in a verbal confrontation with a police officer who was acting as a crossing guard outside an elementary school. The father screamed insults and obscenities at the officer and shook his finger in her face. The officer testified that traffic outside the elementary school slowed and stopped as individuals watched the confrontation. However, none of the motorists exited their vehicles or otherwise reacted to the words or actions of the father.

In reversing the father’s conviction for disorderly conduct, this court observed that in order to avoid possible constitutional problems, Saunders had narrowed the scope of conduct punishable under section 877.03. In Barry, we noted that cases have upheld convictions for disorderly conduct when a defendant’s actions have caused a crowd to gather to such an extent as to cause an officer to develop safety concerns. 934 So.2d at 658-59. However, this court concluded that the mere fact that “other people come outside or stop to watch what is going on is insufficient to support a conviction for disorderly conduct. Instead, there must be some evidence that the crowd is actually responding to the defendant’s words in some way that threatens to breach the peace.” Id. at 659. In the present case, as in the Barry case, there was no evidence that witnesses responded to Smith’s words in any particular manner or that anyone in the area was actually incited to engage in an immediate breach of the peace. At most, it appears from the testimony that the witnesses were either curious or annoyed. The conviction for disorderly conduct must be reversed.

Although, as noted above, the evidence does not support the conviction for disorderly conduct, the evidence clearly supports Smith’s convictions for battery on each of the law enforcement officers. While Smith does not challenge these convictions, he asserts that a sentencing error occurred in regard to the battery convictions. Smith specifically argues that the trial court erred when it imposed consecutive habitual felony offender sentences for each of the batteries on law enforcement officers which stemmed from a single criminal episode. See State v. Hill, 660 So.2d 1384, 1385 (Fla.1995); Hale v. State, 630 So.2d 521, 525 (Fla.1993); Wallace v. State, 673 So.2d 910, 911 (Fla. 2d DCA 1996) (holding habitual felony offender sentence may not further be enhanced by ordering sentences to be served consecutively if the violations occurred during a single criminal episode).

The courts have recognized that there is no bright-line test for determining whether a criminal episode is “single” for purposes of evaluating consecutive enhancement sentences. See Wilcher v. State, 787 So.2d 150, 152 (Fla. 4th DCA 2001). Generally the courts have considered factors such as whether separate victims are involved, whether the crimes occur in separate locations, and whether there has been a temporal break between the incidents. See Smith v. State, 650 So.2d 689, 691 (Fla. 3d DCA 1995). In the present case, the two acts of battery on a law enforcement officer occurred in one location-outside the bank. Smith’s action of grabbing Officer Taylor’s arm and hitting Officer Elrod with his elbow were part of a single criminal action as he resisted arrest. The consecutive sentences must be reversed. On remand, concurrent sentences must be imposed.

We affirm Smith’s convictions for resisting a law enforcement officer with violence and for battery on law enforcement officers. We reverse the conviction for disorderly conduct and the consecutive sentences imposed for battery on law enforcement officers.

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

NORTHCUTT, C.J., and CANADY, J., Concur.

      . Smith was also convicted of resisting a law enforcement officer with violence. He does not appeal that judgment or sentence.

      . Smith preserved this error for appellate review by objecting to the consecutive sentences at the sentencing hearing.


author: VAN NORTWICK, J.

text:
    STATE of Florida, Appellant, v. Demetrius Anthony WILLIAMS, Appellee.
    Nos. 1D05-2118, 1D05-2128.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.
    Rehearing Denied Nov. 6, 2007.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellant.
    Bill B. Salmon; and Tera Lee J. Peterson of Howard Lidsky, P.A., Gainesville, for Appellee.
   VAN NORTWICK, J.

The State of Florida appeals an order granting the motion of Demetrius Anthony Williams, appellee, to suppress evidence obtained as the result of a warrantless search of his person following a lawful traffic stop. It is undisputed that the police officers’ decision to search Williams was based solely upon their recognition of the odor of burnt cannabis emanating from Williams’ vehicle. Because we hold that the odor of burnt cannabis emanating from a vehicle constitutes probable cause to search all occupants of that vehicle, we reverse and remand for further proceedings.

Williams, who was on probation, was stopped while driving a vehicle with a license plate registered to a different car. As the officers stood next to the stopped vehicle they recognized, based upon their training and experience, the “strong odor” of burnt cannabis emanating from the lowered passenger-side window. A third officer arrived while Williams and a passenger were being directed to exit the vehicle by the first two officers. The third officer searched Williams and found twelve bags of cannabis in his sweatshirt pocket. The state charged the appellee with the intent to sell or deliver cannabis and possession of drug paraphernalia. He filed a motion to suppress, arguing that the odor of burnt cannabis emanating from the vehicle did not provide probable cause to search his person. The trial court granted the motion after concluding that, while the officers may have had probable cause to search the vehicle, “there is no testimony indicating that ... there was any smell of marijuana connected to Mr. Williams.... ” Thus, the trial court ruled the officers did not have license to extend the search to Williams’ person. This appeal followed.

In Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)), the Court explained in broad terms the circumstances under which law enforcement officers may engage in a warrantless search consistent with the Fourth Amendment:

Probable cause exists where “the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy ' information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed.

The facts and circumstances test is objective, “viewed from the standpoint of an objectively reasonable police officer....” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The United States Supreme Court, however, has not directly addressed whether a police officer’s determination of the odor of burnt cannabis emanating from a vehicle is sufficient by itself to establish probable cause. See United States v. Johns, 469 U.S. 478, 481, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985)(“The Court of Appeals rejected the Government’s contentions that the plain odor of mari[h]uana emanating from the packages made a warrant unnecessary and that respondents ... lacked standing to challenge the search of the packages. Neither of these issues is before this Court.” (citation omitted)). We conclude that under well-settled Florida law, the detection by a police officer of the odor of burnt cannabis emanating from a vehicle, by itself, constitutes sufficient “facts and circumstances” to establish probable cause to search the person of an occupant of that vehicle.

In Betz v. State, 793 So.2d 976 (Fla. 2d DCA 2001), quashed sub. nom., State v. Betz, 815 So.2d 627 (Fla.2002), Betz was searched after a lawful traffic stop because the officer smelled a “very strong odor” of burnt cannabis emanating from the vehicle and Betz’s clothing and saw gray smoke within the vehicle. 815 So.2d at 629. A search of Betz’s person revealed a bag of cannabis, and a search of the vehicle’s trunk uncovered a second bag. The trial court denied Betz’s motion to suppress the evidence obtained via both searches. The Second District affirmed the denial as to the search of Betz’s person, but reversed as to the search of Betz’s trunk. 793 So.2d at 977-78. On conflict review, the Florida Supreme Court addressed whether the odor of marijuana detected by a police officer emanating from both the car’s interior and the person of the occupant, coupled with the occupant’s suspicious behavior, gave rise to probable cause to search the trunk of the vehicle. Although addressing only the appealed issue relating to the search of Betz’s trunk, in its analysis the Court stated in dicta that the odor of burnt cannabis provided probable cause to search Betz’s person. 815 So.2d at 633 (“ ‘[T]o a trained and experienced police officer, the smell of cannabis emanating from a person or a vehicle gives the police officer probable cause to search the person or the vehicle.’ ” (quoting State v. Reed, 712 So.2d 458, 460 (Fla. 5th DCA 1998))).

In cases predating Betz, Florida appellate courts have held that the smell of marijuana emanating from a vehicle can constitute probable cause for a search without a warrant. In Berry v. State, 316 So.2d 72, 73 (Fla. 1st DCA 1975),- this court explained:

When the officer approached the car he smelled marijuana smoke coming from and in the car. He, then, by the use of his sense of smell, had probable cause to arrest the Defendant, and probable cause to search the car. We hold that the use of the sense of smell by one knowledgeable as to the identity of an odor, is just as valid a basis for finding probable cause, as is the use of the other senses such as sight, feel, or taste.

Similarly, in Dixon v. State, 343 So.2d 1345, 1348 (Fla. 2d DCA 1977), the Second District reasoned, as follows:

The elements of the criminal offense of possession of marijuana are the suspect’s knowledge of the presence of the contraband and his ability to maintain control over it or reduce it to his possession. The smell of marijuana and sight of smoke emanating from an automobile constitute probable cause to believe that both elements are satisfied as to all of the occupants of the vehicle and that each occupant had actual or constructive possession of marijuana. The existence of probable cause to believe that the driver of the automobile was in possession of the marijuana was particularly apparent.

(Citations omitted).

More recently, in State v. Chambliss, 752 So.2d 114 (Fla. 5th DCA 2000), the Fifth District held that “the odor of burning marijuana alone provided probable cause to search the defendant.” Id. Like the present case, in Chambliss the police officer initiated a traffic stop “because the tag did not match the car.” Id. at 115. Also, like the instant case, “[w]hen the officer approached the vehicle, he detected the ‘strong smell’ of [burning] marijuana.” Id. Based on Betz and Chambliss, the Fourth District has also held that the odor of burnt cannabis emanating from a stopped vehicle provides probable cause to search a person who is in the vehicle. See State v. T.P., 835 So.2d 1277, 1278 (Fla. 4th DCA 2003); State v. K.V., 821 So.2d 1127, 1128 (Fla. 4th DCA 2002).

We distinguish the cases which hold that law enforcement officers do not have probable cause to search the person of an occupant of a vehicle based solely on a trained police dog alerting to the vehicle. See, e.g., Williams v. State, 911 So.2d 861 (Fla. 1st DCA 2005). Generally, a trained dog’s alert on a vehicle may constitute probable cause to search the vehicle. See Denton v. State, 524 So.2d 495, 498 (Fla. 2d DCA 1988). While a trained narcotics dog’s keen sense of smell makes the animal a valuable resource for law enforcement, see generally, Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detention Dog, 85 Ky. L.J. 405, 408-09 (1997), the dog’s superior olfactory sense also enables it to “detect not only the presence of drugs, but also the fact that drugs have been present in a particular location at some time in the recent past.” State v. Griffin, 949 So.2d 309, 318 (Fla. 1st DCA 2007)(Padovano, J., concurring). Thus, the possibility of the detection of residual odors “is a very good reason to hold that a dog alert does not justify a search of the driver or passengers.” Id.; see also Matheson v. State, 870 So.2d 8, 13 (Fla. 2d DCA 2003)(“The presence of a drug’s odor at an intensity detectable by the dog, but not by the officer, does not mean that the drug itself is present. An officer who knows only that his dog is trained and certified, and who has no other information, at most can only suspect that a search based on the dog’s alert will yield contraband. Of course, mere suspicion cannot justify a search.”).

Because a human’s olfactory sense is weak as compared to a dog’s, however, there is less risk that a police officer will smell residual odors when no drug is present. As one commentator has observed:

If the odor is strong enough for a human to be able to detect it with his comparatively weak olfactory powers, there is arguably a stronger showing of probable cause because of the greater likelihood that contraband is currently present. Whereas a dog may detect a very faint trace of an odor that indicates only the prior presence of contraband in the area searched, human detection of the odor will necessarily only occur when the odor is stronger than that necessary for a canine to alert. In order for the odor to be strong enough to be detected by a human, there will be either a substantial quantity of contraband in the immediate area or the contraband will have been exposed to the air fairly recently. It follows, then, that a human will be less likely than a dog to detect the odor of contraband when there is none present.

Michael A. Sprow, Wake Up and Smell the Contraband: Why Courts That Do Not Find Probable Cause on Odor Alone Are Wrong, 42 Win. & Mary L.Rev. 289, 310-11 (2000). Thus, where, as here, an experienced police officer smells the odor of burnt cannabis, the risk of smelling residual odors is not present and the odor itself provides the basis for probable cause. Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

ALLEN and POLSTON, JJ., concur.

      . The record reilecls that the officer who testified at the evidentiary hearing was familiar with the odor of marijuana, had attended classes regarding marijuana, and had been involved in over 100 cases involving marijuana.

      . We are required to follow the United States Supreme Court's interpretation of the Fourth Amendment. See Art. I, § 12, Fla. Const.; Bernie v. State, 524 So.2d 988, 990-91 (Fla.1988).


author: LaROSE, Judge.

text:
    Charlotte NAPLES, Appellant, v. Joseph NAPLES, Appellee.
    No. 2D06-3421.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.

      Richard A. Motley, New Port Richey, for Appellant.
    Brett Alan Geer of The Geer Law Firm, L.C., Tampa, for Appellee.
   LaROSE, Judge.

Charlotte Naples (the Wife) and Joseph Naples (the Husband) are divorced. The Wife appeals the trial court’s order dismissing her motion for contempt and to enforce the Husband’s alimony obligations. The trial court concluded that it lacked subject matter jurisdiction. We reverse.

The Final Judgment of Dissolution incorporated the parties’ marital settlement agreement that provided, in part:

Each party agrees to permanent alimony as follows: The Husband shall pay periodic installment alimony directly to the Wife through his VA benefits, effective June 1, 2002, the sum of $1,000 per month, on the first of each month until direct deposit by the VA is in effect.

The Husband was receiving disability benefits from the Veterans’ Administration (the VA). He had received these benefits during the marriage. The Husband agreed to pay the Wife $1000 each month until he could arrange for the VA to pay her directly. Relying on Abernethy v. Fishkin, 699 So.2d 235 (Fla.1997), the trial court concluded that federal law, presumably provisions of the Uniformed Services Former Spouses’ Protection Act (the USFSPA), 10 U.S.C.A. § 1408(c)(1), preempted state court enforcement of the alimony obligation because it forced the Husband to pay alimony with his VA disability benefits. Consequently, the trial court concluded that it lacked subject matter jurisdiction to hear the Wife’s motion. We note that the alimony provision did not equitably distribute marital property, nor did it grant the Wife a property interest in the disability benefits.

In determining whether federal law preempts state law, we assess whether the state law actually conflicts with the federal law or interferes with the purpose of the federal law. See Ray v. Atl. Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978). Because the alimony provision does not conflict with the relevant provisions of the USFSPA, we conclude that federal law did not preempt state court enforcement, if appropriate, of the Husband’s alimony obligation. Accordingly, the trial court should have addressed the Wife’s motion on its merits.

The USFSPA authorizes state courts to distribute military retirement pay in dissolution proceedings. But, “disposable retired pay” does not include disability benefits. See 10 U.S.C.A. § 1408(c)(1). In Aberenthy, the supreme court addressed whether, in the context of a property settlement, the USFSPA preempted state court enforcement of a final judgment requiring one spouse to pay his former spouse twenty-five percent of his monthly income, including military disability benefits. 699 So.2d at 239-40. The supreme court held that the final judgment could be enforced because it did not expressly assign or divide disability benefits. Id.

The USFSPA’s preclusion of assignment or division of disability benefits does not void an alimony award merely because the payor spouse receives such benefits. See Allen v. Allen, 650 So.2d 1019, 1020 (Fla. 2d DCA 1994) (holding section 1408 exclusion of disability benefits from military retirement pay subject to direct payments to former spouse did not preclude state court from ordering husband to pay alimony or relieve him from paying such obligation); cf. Longanecker v. Longanecker, 782 So.2d 406 (Fla. 2d DCA 2001) (upholding alimony award requiring husband to make monthly payment directly to wife in amount equivalent to wife’s agreed share of husband’s military benefits); Day v. Day, 574 So.2d 324 (Fla. 4th DCA 1991) (holding no error in considering former husband’s disability benefits when determining ability to comply with previous judgments, court orders, and purge provision of contempt order).

Here, the Husband agreed to pay the Wife $1000 a month in alimony. He did not assign his disability benefits to her nor did they purport to divide those benefits. At most, the parties recognized that the disability benefits were an income source available to satisfy the Husband’s obligation. Although we cannot say that the parties considered this eventuality, it seems clear that direct deposit by the VA to the Wife will never be “in effect” because the USFSPA’s direct payment provisions exclude disability benefits from the disposable retired pay the VA can pay directly to a former spouse. See 10 U.S.C.A. § 1408(a)(4)(C), (d)(1). By default, absent modification or other relief to which he may be entitled, the Husband must make his alimony payments directly to the Wife. Thus, the trial court may address the merits of the Wife’s motion and determine what, if any, relief to which she is entitled.

The Husband also argues that 38 U.S.C.A. § 5301 precludes enforcement of the alimony provision. Because he did not raise this issue in the trial court, he failed to preserve it for our review. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999); Dober v. Worrell, 401 So.2d 1322, 1323-24 (Fla.1981).

Reversed and remanded.

NORTHCUTT, C.J, and ALTENBERND, J., Concur.

      . Our supreme court has stated that "the issue of federal preemption is a question of subject matter jurisdiction.” Boca Burger, Inc. v. Forum, 912 So.2d 561, 568 (Fla.2005); see also Bankers Risk Mgmt. Servs., Inc. v. Av-Med Managed Care, Inc., 697 So.2d 158, 160 (Fla. 2d DCA 1997); Hernandez v. Coopervision, Inc., 661 So.2d 33, 34 (Fla. 2d DCA 1995). We are mindful, however, of other decisions suggesting that federal preemption, rather than a limitation on subject matter jurisdiction, acts as a constraint on a state court's power to grant specific relief. See, e.g., Coon v. Coon, 364 S.C. 563, 614 S.E.2d 616, 617-18 (2005) (holding USFSPA "supplants state domestic-relations law pursuant to the Supremacy Clause of the United States Constitution, but it does not pre-empt state-court subject-matter jurisdiction”), cert. denied, 546 U.S. 1090, 126 S.Ct. 1025, 163 L.Ed.2d 854 (2006); Curtis v. Curtis, 7 Cal.App.4th 1, 9 Cal.Rptr.2d 145, 151 (1992) (holding USFSPA does not implicate subject . matter jurisdiction); Cent. Nat'l Bank of Miami v. Cent. Bancorp., Inc., 411 So.2d 358, 360 (Fla. 3d DCA 1982) (holding that National Banking Act preempted enforcement of agreement, but rejecting argument that trial court lacked subject matter jurisdiction: "[fjederal preemption, by itself, in no way determines the court in which an action may be brought, but only prescribes the law that is to be applied to the claim.”); Armstrong v. Csurilla, 112 N.M. 579, 817 P.2d 1221, 1227 (1991).

      . In addition to dismissing the Wife's "cause,” the order also stated that the Wife's motion was denied. We see nothing in the record indicating that the trial court actually considered the merits of the motion. Cf. Wells v. State, 736 So.2d 24, 25 (Fla. 2d DCA 1999) (stating that denial usually serves as ruling on merits); Union Oil of Cal. Amsco Div. v. Watson, 468 So.2d 349, 354 (Fla. 3d DCA 1985) (stating dismissal for lack of jurisdiction not considered adjudication on the merits). Of course, had the trial court lacked subject matter jurisdiction, it could not reach the merits. See Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 801 (Fla.2003) (defining subject matter jurisdiction as the power to hear and determine a cause lawfully).

      .§ 1408. Payment of retired or retainer pay in compliance with court orders
      (a) Definitions. — In this section:

      (4) The term "disposable retired pay” means the total monthly retired pay to which a member is entitled less amounts which—

      (C) in the case of a member entitled to retired pay under chapter 61 of this title [disability retirement], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired....

      (c) Authority for court to treat retired pay as property of the member and spouse.— (1) Subject to the limitations of this section, a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member and the member's spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member's spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member's spouse or former spouse.
      (2) Notwithstanding any other provision of law, this section does not create any right, title, or interest which can be sold, assigned, transferred, or otherwise disposed of (including by inheritance) by a spouse or former spouse....

      (d) Payments by Secretary concerned to (or for benefit of) spouse or former spouse.—
      (1) After effective service on the Secretary concerned of a court order providing for the payment of child support or alimony or, with respect to a division of property, specifically providing for the payment of an amount of the disposable retired pay from a member to the spouse or a former spouse of the member, the Secretary shall make payments (subject to the limitations of this section) from the disposable retired pay of the member to the spouse or former spouse ... in an amount sufficient to satisfy the amount of child support and alimony set forth in the court order and, with respect to a division of property, in the amount of disposable retired pay specifically provided for in the court order.

      . Title 38. Veterans’ Benefits

        Part IV. General Administrative Provisions Chapter 53. Special Provisions- Relating to Benefits
      § 5301. Nonassignability and exempt status of benefits
      (a)(1) Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary....

      (3)(A) This paragraph is intended to clarify that, in any case where a beneficiary entitled to compensation, pension, or dependency and indemnity compensation enters into an agreement with another person under which agreement such other person acquires for consideration the right to receive such benefit by payment of such compensation, pension, or dependency and indemnity compensation, as the case may be, except as provided in subparagraph (B), and including deposit into a joint account from which such other person may make withdrawals, or otherwise, such agreement shall be deemed to be an assignment and is prohibited.


author: THOMAS, J.

text:
    John THEOPHILE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-895.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2007.
    Rehearing Denied Nov. 15, 2007.
    John Theophile, pro se, Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Appellant’s motion does not allege that the court’s records demonstrate a clear entitlement to relief, we affirm.

Appellant was convicted of attempted robbery with a firearm and aggravated battery with a firearm and sentenced to consecutive 25-year sentences as an habitual felony offender. He asserts that his sentence is illegal because the offenses constituted a single criminal episode. If true, Appellant’s consecutive habitual offender sentences would be in violation of Hale v. State, 630 So.2d 521 (Fla.1993). The trial court denied relief because Appellant relied on hearsay information and also failed to “point to any nonhearsay portion of the record to support his claim that his offenses arose in the same criminal episode.”

As we recently held in Lauramore v. State, 949 So.2d 307 (Fla. 1st DCA 2007), a person asserting a double jeopardy violation under Hale is required to allege with particularity both the non-hearsay record documents that show an error on the face of the record, and “how and where” the record demonstrates the consecutive sentences were based on a single criminal episode. Id. at 308 (citing Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998)). It is well established that a facially sufficient Hale claim cannot be based on a police report or any other type of hearsay information that is not subject to cross examination. See Burgess v. State, 831 So.2d 137, 142 (Fla.2002) (affirming that a Hale claim is not cognizable under rule 3.800 when based on hearsay information contained in a police report); Harris v. State, 875 So.2d 735, 736 (Fla. 2d DCA 2004) (holding that a facially sufficient claim of Hale violation cannot be established by charging document or “extra-record” facts).

We recognize that in Valdes v. State, this court held that it can consider a claimed Hale violation under rule 3.800 based on facts established in a prior direct appeal opinion. 765 So.2d 774 (Fla. 1st DCA 2000). Here, however, we do not have the benefit of any facts noted in a previous direct appeal; furthermore, Appellant has failed to allege the specific facts on which his claim relies. Relief under rule 3.800(a) is precluded where an evidentiary determination is required. Burgess, 831 So.2d at 140. For this reason, Appellant could not demonstrate entitlement to relief under rule 3.800(a) without citing to facts established in the trial transcript or otherwise apparent on the face of the record. See Jackson v. State, 803 So.2d 842 (Fla. 1st DCA 2001) (holding that a Hale claim under rule 3.800(a) requires more than a general allegation, and claim must cite to facts based on court records that demonstrate on their face an entitlement to relief); Pullins v. State, 777 So.2d 451 (Fla. 1st DCA 2001) (affirming trial court’s denial of Hale claim where 3.800(a) motion failed to point to record facts demonstrating crimes were committed in a single episode). We therefore affirm, without prejudice to Appellant’s ability to file a properly pled rule 3.800(a) motion in the trial court.

We note that Appellant previously sought relief in 2000, also asserting a claim under rule 3.800(a), Florida Rules of Criminal Procedure. There, Appellant only cited legal authorities and sought an eviden-tiary hearing, but failed to support his claim with facts apparent on the face of the record. That claim was denied as untimely, based on Dixon v. State, 730 So.2d 265 (Fla.1999) (holding that all such motions must be filed by August 16, 1997). Although our affirmance is without prejudice, we note that continuous filings that are deemed insufficient in nature can potentially subject Appellant to “vexatious litigant sanctions under section 68.093(2)(d), Florida Statutes (2006), or other sanctions available under section 57.105(1), Florida Statutes (2006).

AFFIRMED.

HAWKES, J., concurs; BENTON, J., concurs in result.


author: ALLEN, J.

text:
    Lawrence SIMPKINS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4448.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2007.
    Rehearing Denied Nov. 15, 2007.
    Lawrence Simpkins, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   ALLEN, J.

The petitioner is a prison inmate seeking a writ of certiorari, to challenge the circuit court’s denial of mandamus and the imposition of a lien on his inmaté trust account. In the mandamus proceeding the petitioner obtained review of disciplinary action taken by the Department of Corrections, and that aspect of the case is here for second-tier review as described in Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). The petitioner has not shown any basis for relief as to the denial of mandamus, but the circuit court should not have ordered the imposition of a section 57.085, Florida Statutes, lien for payment of court costs and fees for the mandamus proceeding..

With regard to the lien, the petitioner suggests that the mandamus action was a collateral criminal proceeding to which section 57.085 does not apply. In Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), it was indicated that an action which may impact an inmate’s gain time and thereby effectively alter the amount of time which will actually be served will be treated as a collateral criminal proceeding to which § 57.085 does not apply. See also Gibson v. McDonough, 951 So.2d 89 (Fla. 1st DCA 2007). The disciplinary action which was the subject of the mandamus proceeding in the present case made the petitioner ineligible for a period of incentive gain time. See Fla. Admin. Code R. 33-601.101(6). In-accordance with Schmidt and Gibson, a section 57.085 lien thus may not be imposed for the petitioner’s mandamus proceeding. See also Muhammad v. Crosby, 922 So.2d 236 (Fla. 1st DCA 2006).

The petition for certiorari is denied insofar as it challenges the circuit court’s denial of mandamus. However, the petition is granted in connection with the challenge to the section 57.085 lien, and the circuit court orders are quashed to the extent they impose and uphold the lien for the mandamus proceeding. The circuit court should direct the reimbursement of any funds which have been withdrawn from the petitioner’s account to satisfy the improper lien.

WOLF and POLSTON, JJ., concur.


text:
    Jonathan STEELE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4583.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2007.
    Rehearing Denied Nov. 8, 2007.
    Jonathan Steele, pro se, Appellant.
    Bill McCollum, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee; Joe Belitzky, Department of Legal Affairs, Tallahassee; Kathleen Von Hoene, General Counsel, Department of Corrections, for Appellee.
   PER CURIAM.

AFFIRMED. See Hampton v. McDonough, 967 So.2d 317 (Fla. 1st DCA 2007).

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


author: SALTER, J.

text:
    Adrian McKENNEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-871.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Rehearing Denied Nov. 8, 2007.

      Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ and SALTER, JJ.
   SALTER, J.

Adrian McKenney (“McKenney”) appeals from his convictions and sentences for second degree murder with a firearm, attempted voluntary manslaughter with a firearm, and violation of his probation. We affirm the jury’s verdict and each of the circuit court’s challenged rulings regarding the speedy trial rule, certain comments made by counsel for the State in closing argument, and the use of an AK-47 semiautomatic weapon for demonstrative purposes.

I. Speedy Trial

McKenney was arrested and charged on January 28, 2004 with the second degree murder with a firearm of Deririck Jackson and the attempted second degree murder with a firearm of Lisa Dixon. During March and April, 2004, defense counsel filed three notices of discovery.

On May 10, 2004, defense counsel filed a motion to compel discovery and for sanctions. Two days later the trial court entered an order compelling discovery of certain items by May 21, 2004. The case was set for trial commencing July 12, 2004. On July 7, 2004, the defense served a notice of alibi. Fla. R.Crim. P. 3.200 specifies that such a notice shall be filed at least ten days before trial, rather than the five days provided here. The State advised the trial court that the State would be ready for trial if the defense withdrew the alibi notice, but that it would request a defense-charged continuance if the alibi notice was not withdrawn.

The 175-day period provided by Fla. R.Crim. P. 3.191(a) was to expire July 21, 2007. The trial court charged the continuance jointly to the State and the defense, and the trial ultimately began on December 13, 2004. In the interim, McKenney filed notices of expiration of the speedy trial period on August 26, 2004 and October 27, 2004 and moved for final discharge based on Rule 3.191, but the trial court denied the motion. We review that denial, and the characterization of the continuance as “joint” rather than “State,” for abuse of discretion.

Rule 3.191(j)(2) sets forth one of the exceptions to the speedy trial rule— when “the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel.” In this case, the accused and his counsel share responsibility for the continuance because they did not file a timely notice of alibi. McKenney waived his right to discharge under the speedy trial rule when he declined to withdraw the untimely notice of alibi and proceed to trial on July 12, 2004 as scheduled. While McKenney argues that the notice of alibi was served late because of the State’s discovery violations, McKenney had ample time between May 21, 2004 (the discovery compliance date ordered by the trial court) and July 2, 2004 within which to bring any remaining discovery issues to the trial court’s attention. In addition, McKenney did not explain how or why the alleged discovery problems delayed his filing and service of the notice of alibi. The purported alibi witnesses were McKenney’s grandmother and uncle, living in Carol City, who would have testified that McKenney was in Carol City at the time of the shooting. This information was elicited by the defense itself and was not dependent on the allegedly-late State discovery (Transcript of July 9, 2004 Hearing at 295-296 [hereinafter “T. at_”]).

Under those circumstances, it was not an abuse of discretion for the trial court to charge the continuance jointly rather than only to the State. The continuance might not have been granted, or if granted might have been attributed to the State, had McKenney withdrawn the untimely notice of alibi, but he declined to do so. We therefore conclude that the trial court committed no error in characterizing the continuance as a joint continuance and in denying the motion for final discharge. State v. Naveira, 873 So.2d 300, 306 (Fla. 2004); Rodriguez v. State, 933 So.2d 1263 (Fla. 3d DCA 2006).

II. State’s Closing Argument

McKenney argues that certain comments by the State during its closing argument were prejudicial and improper, and that the trial court erred by denying a defense motion for mistrial after the comments were made.

Throughout the trial, the defense focused on two points — that a large number of persons, perhaps as many as fifty, were at the site of the shootings, and that only one eyewitness was brought forward by the State. Before the trial, McKenney sought and obtained an order in limine precluding the State from presenting to the jury any evidence or comments that “the witnesses in the Liberty City neighborhood do not come forward to the police or are scared to talk to the police, as this opinion testimony is inadmissible and requires the police officer to testify as to what is in a third-person’s mind” (R. at 121).

During initial closing argument, defense counsel again focused on the disparity between the number of likely witnesses and the single eyewitness presented by the State. Addressing the testimony of the first police officer to arrive on the scene, defense counsel said:

When he got there he observed approximately fifty people in the area, and the only witness’s name, the only name he came up with, someone named Lisa Francis, who is supposed to be Mr. Jackson’s sister, who supposed [sic] to be a witness to the case (T. at 664-65).

Defense counsel repeatedly emphasized the fact that the State had only offered the testimony of Ms. Tillman and that none of the other persons observed at the scene had given testimony:

To watch Miss Tillman, this is a one-witness case (T. at 672).
There aren’t any witnesses at all who put Miss Tillman there (T. at 675).
[S]he is the only witness to the shooting that occurred (T. at 678).
... and how is it that the detective, the original officer who arrived there, said, “there are fifty people in the area.” There is not one other witness to this thing or one other witness to at least say that, at least Miss Tillman was there, one other witness who can corroborate anything in this case, whatsoever, there (T. at 678-79).
There are fifteen, twenty people when the shooting took place, fifteen or twenty adults (T. at 681).
Well, there is no other evidence in the case, and there is no other testimony in this case as to who did this (T. at 688-89).

These excerpts are illustrative but are not a complete catalogue of similar statements by the defense during its own closing.

When the prosecutor followed with her own closing argument, she said:

You know, a street crime like this, it is about the worst kind of case for a jury to have to look at. For law enforcement to have to solve. Because the reality of the case- involving a street crime, like this, is that the physical evidence, casings left behind, can’t tell you who committed the crime. There aren’t going to be fingerprints. There is not going to be DNA. The only way to solve a crime like this, is for witnesses to come forward and say what they saw. And anyone with one ounce of common sense, can figure out that when a person is capable of gunning down an unarmed man in front of a bunch of people, not just with a little handgun, mind you, but with an assault rifle, who the heck is going to get involved in that kind of mess? That is exactly what happened in this case (T. at 691-92).

Defense counsel then objected and at sidebar moved for a mistrial because the prosecutor’s statement suggested to the jury that “there were other witnesses who wouldn’t come forward because they were scared” (T. at 692). Defense counsel also objected because “Other people ... they took names ... but didn’t come forward, were scared.” Id. The trial court denied the objections and motion for mistrial, and did not give any instruction or make any comment to the jury regarding the point.

We reject McKenney’s argument that the State could not address defense counsel’s rhetorical question and comments to the jury during the State’s closing. We review the trial court’s rulings for an abuse of discretion. Where there is an allegation of improper comments by a prosecutor, we do not consider the comments themselves in a vacuum; rather, we view the allegedly-wrongful comments in context. Under the principles known variously as “fair reply” or “invited response,” defense counsel’s comments are examined as well. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); Vazquez v. State, 635 So.2d 1088 (Fla. 3d DCA 1994). The jury was instructed that argument by counsel is not evidence, and the comment by the State in this case is reasonably characterized as a fair reply to the defense arguments that elicited the comment.

The defense essentially asks that the State be prohibited from answering the question first posed by defense counsel— why haven’t other eyewitnesses come forward? The prosecutor did not elicit police testimony or argue that, “the witnesses in the Liberty City neighborhood do not come forward to the police or are scared to talk to the police,” which would have violated the pretrial ruling in limine. Instead, the prosecutor responded fairly to the defense’s question by discussing the inference, a matter of common sense, that the horrific crime scene and 30-plus rounds of assault rifle fire would not encourage a bystander to step forward. The prosecutor did not suggest that a different inference might apply in Aventura or any other neighborhood (as opposed to Liberty City). She did not suggest that any eyewitness was, or even might have been, intimidated by McKenney. Finally, the prosecutor did not suggest that other specific eyewitnesses had made reports to the police but were not at trial because of their fear.

The cases cited by the defense involve egregious comments that were not fairly responsive to statements in a defense closing. In Tran v. State, 655 So.2d 141 (Fla. 4th DCA 1995), the State started the commentary on “fear of reprisal” in opening statement. The prosecutor then elicited testimony from the only witness identifying the defendant at trial that another witness who could also do so was “scared to come to court.” A police officer testified that witnesses at the scene of the shooting were being intentionally uncooperative, and another officer testified that he found it hard to believe that those witnesses had not seen anything. The State’s closing included a statement that, “nobody wanted to get involved,” and there is no suggestion in Tran that the defense invited any such statements or evidence. Tran simply followed an earlier case, Henry v. State, 651 So.2d 1267 (Fla. 4th DCA 1995), for the understandable (but different) rule that the State may not imply that the defense “got to” or tampered with a witness, or suborned perjury. No such implication was argued here.

Similarly, in Tindal v. State, 803 So.2d 806 (Fla. 4th DCA 2001), a prosecutor commented during closing on why a particular non-testifying witness might not have come to court:

That person didn’t testify, you don’t know whether that person was intimidated or in fear when she said that, whether she had a gun pointed at her.

Id. at 808. Moreover, similar comments were made by the prosecutor during rebuttal in Tindal, that a specific witness’s testimony might have been given, “because a gun was pointed at her and she was in fear.” In that case, “the prosecutor’s comments went beyond a fair reply.” Id. at 810. In Johnson v. State, 747 So.2d 436, 439 (Fla. 4th DCA 1999), the prosecutor argued that the jurors could see how frightened a testifying witness had been at trial, and suggested that fright was possibly why another (non-testifying) witness, “wouldn’t show up as well.” On appeal, the denial of a motion for mistrial was affirmed, and the court noted that, “the prosecutor never directly suggested that the witnesses were in fear of the defendant.” Id.

In Restrepo v. State, 552 So.2d 1126 (Fla. 3d DCA 1989), this court held that, “[fit was improper closing argument for the prosecutor to state, without support in the record, that a witness was absent ‘maybe because he is afraid to testify against this man.’ ” Although that comment was clearly directed at fear of the defendant rather than a general fear that might relate to a bloody crime scene or to semiautomatic gunfire, this court concluded that the error was harmless beyond a reasonable doubt.

We conclude that McKenney invited comment on the fact that only one eyewitness testified, that the trial court did not abuse its discretion in overruling the defense objection and motion for mistrial, and that the claimed error was, in any event, harmless beyond a reasonable doubt.

III. Exhibition of the AK-JJ7 to the Jtioy

McKenney’s next issue asserts that it was harmful error to allow a demonstrator to exhibit to the jury an AK-47 semiautomatic assault weapon to the jury. In this ease the actual crime weapon was not found. McKenney argues that the tidal court erred in allowing a State witness to exhibit the firearm to the jury because the prejudicial effect on the jury substantially outweighed any probative value. § 90.403, Fla. Stat. (2004).

The trial court is afforded broad discretion in balancing possible prejudice against probative value, and we do not find an abuse of discretion in this case. The State’s witness described how the weapon worked and correlated the location of spent shell casings with the likely location of the shooter and a sketch of the crime scene. The weapon was also identified by the eyewitness as the kind of weapon she saw in McKenney’s hand. The AK-47 was not admitted into evidence and was not taken into the jury room. The State explained that the weapon used for the demonstration was not the one actually used in the shootings.

McKenney relies upon Taylor v. State, 640 So.2d 1127 (Fla. 1st DCA 1994), in support of his argument that the prejudicial effect of the demonstrative exhibit outweighed its probative value. In that case, the primary issue was whether the defendant was insane. The trial court allowed the medical examiner, “to use clay heads to describe the impact and nature of the wounds that caused death, and permitted the state to use a young woman of the same height, weight, and general features and coloring as [one of the murder victims] as a surrogate victim.” The “surrogate victim” was clothed for the demonstration in a blue nightgown, though when her body was discovered, “she was clad in shorts, T-shirt, and underwear.” Id. at 1132.

In that case, the demonstrative “exhibit” was neither relevant to the issue in the case (the alleged insanity of the defendant) nor “an accurate and reasonable reproduction of the object involved.” Id. at 1134 [citations omitted]. On those facts, the court understandably concluded that, “any possible relevancy between the victim’s nightgown and the sanity issue is tenuous at best,” and that the use of the surrogate victim had a prejudicial effect upon the emotions of the jurors.

In the instant case, however, the AK-47 was relevant to the issue of eyewitness identification and to an understanding of the crime scene. Chamberlain v. State, 881 So.2d 1087, 1102 (Fla.2004). There is no evidence or assertion that the AK-47 used for the demonstration was not similar (if not identical) to the murder weapon. “Surrogate victims,” were not part of the State’s demonstration of the weapon and the operation of the weapon.

Under those circumstances, the trial court did not abuse its discretion in allowing the use of the AK-47 for demonstrative purposes.

IV. Cumulative Effect

McKenney argues that the State’s only eyewitness was so lacking in credibility that none of the three errors alleged by McKenney can be considered harmless beyond a reasonable doubt. While the jurors did send out questions during deliberations and did indicate that they might be deadlocked at one point, they ultimately rendered a verdict of guilt — thus accepting eyewitness Gloria Tillman’s testimony. The jurors knew nothing of the alleged speedy trial error, they had no reason to believe from the prosecutor’s response in closing that McKenney had “gotten to” or intimidated any other eyewitness, and their questions during deliberations were not related in any way to the exhibition of the AK-47.

Finding no error in any of the three issues raised by McKenney, we decline to find that the jury’s questions and the cumulative effect of the alleged errors require a new trial. We therefore affirm the convictions and each of the challenged rulings below.