author: LAWSON, J. THOMPSON, E., Senior Judge,

text:
    Eric GARREN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4397.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2008.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Eric Lee Garren appeals from the denial of his pre-sentence motion to withdraw his pleas. We conclude that Garren should have been allowed to withdraw his pleas, and reverse.

Garren was charged with aggravated battery with a deadly weapon and battery. He appeared at arraignment, unrepresented, and indicated a desire to plead guilty to the charges. Without conducting a Faretta inquiry, the trial court accepted Garren’s guilty pleas and set a sentencing date approximately one month later. Garren asked the trial court to appoint counsel to represent him at sentencing, and the court appointed the public defender.

Prior to sentencing, counsel moved to withdraw Garren’s pleas pursuant to Florida Rule of Criminal Procedure 3.170(f), on grounds that Garren was not aware that he faced a minimum guideline sentence of thirty-eight months in prison at the time that he entered his uncounseled pleas. At the hearing on his motion, Garren and his lawyer explained to the judge that Garren was a high school drop-out who could neither read nor write; that jail inmates had assured him that he would only receive probation if he pled guilty at arraignment; and, most significantly, that he had no idea when he entered his pleas that he would score mandatory prison on his Criminal Punishment Code scoresheet.

Florida Rule of Criminal Procedure 3.170(f) provides that a trial court “may in its discretion, and shall on good cause,” permit a plea of guilty to be withdrawn at any time before a sentence is imposed. Thus, under this rule, a defendant “is entitled to withdraw his plea as a matter of right when good cause is shown.” Johnson v. State, 947 So.2d 1208, 1210 (Fla. 5th DCA 2007) (citations omitted). Although “[t]he burden to establish good cause under the rule is on the defendant ... the rule should be liberally construed in favor of a defendant because the law inclines towards a trial on the merits.” Id. “Good cause to withdraw a plea is said to be present when the plea is ‘infected by misapprehension, undue persuasion, ignorance, or was entered by one not competent to know its consequence or that it was otherwise involuntary, or that the ends of justice would be served by withdrawal of such plea.’ ” Id. (quoting Onnestad v. State, 404 So.2d 403, 405 (Fla. 5th DCA 1981)).

Here, Garren clearly met his burden of establishing good cause by showing that he entered his pleas without knowing that the guidelines proscribed a minimum sentence of more than three years in prison on the felony charge. As such, the motion to withdraw his pleas should have been granted. Id. Therefore, we reverse Garren’s convictions and sentences and remand with instructions that Garren be allowed to withdraw his pleas.

REVERSED AND REMANDED.

TORPY, J., concurs.

THOMPSON, Senior Judge, concurs specially, with opinion.

THOMPSON, E., Senior Judge,

Concurring Specially, With Opinion.

I agree that the case should be reversed because the trial court did not conduct an adequate Faretta inquiry; thus, Garren’s waiver of his attorney was not freely and voluntarily made. See Fla. R.Crim. P. 3.111(d)(2). However, as I read the panel’s opinion, two reasons are offered for reversal. The first reason is Faretta. The second reason is that Garren showed good cause, absent Faretta, because the trial court did not advise him of the minimum sentence to be imposed. I bifurcate the reasons presented for reversal because, absent the inadequate Faretta inquiry, I believe Garren did not demonstrate good cause to withdraw the plea as required by Florida Rule of Criminal Procedure 3.170(f). Here is my reasoning.

At the arraignment hearing, the trial court ascertained that Garren had a ninth grade education and that he could read. Garren stated he was informed of the facts, that he possessed a police report, and that he was unaware of any exonerating evidence. The court advised Garren of his rights to an attorney and conducted an extensive voir dire to ensure that he freely and voluntarily waived those rights. Gar-ren then insisted on entering a pro se plea, and the court found that he freely and voluntarily entered his plea. The trial court was not required to advise Garren at the time of his plea that a minimum sentence would be imposed. See Wagner v. State, 895 So.2d 453, 458 (Fla. 5th DCA 2005). He was subsequently appointed counsel for sentencing. At sentencing, his counsel informed the court that they were seeking a plea withdrawal, not to go to jury trial, but to negotiate a better plea deal with the prosecutor.

Under rule 3.170(f), the trial court may, in its discretion, and shall, on good cause, at any time before sentence, permit a plea of guilty to be withdrawn. In Wagner, this court stated that “trial courts are bestowed with the discretion to determine whether good cause has been established” and that “[a] trial court abuses its discretion ‘only where no reasonable man would take the view adopted by the trial court.’ ” Id. at 456 (quoting Sims v. State, 869 So.2d 45, 47 (Fla. 5th DCA 2004)).

Under this standard, I would argue that the trial court did not abuse its discretion when it determined that no good cause existed to withdraw Garren’s plea. Reasonable men could certainly take the position that Garren’s desire to negotiate a better plea does not merit a plea withdrawal. There was no allegation that his plea was entered involuntarily or that he was misadvised by counsel. He knew everything he was legally required to know; he knew he faced a maximum sentence of 16 years and he knew he could receive the maximum sentence. Unfortunately, Garren believed that he would receive probation based on legal advice from jail inmates, and “[wjhere the mistake or misunderstanding in entering a plea is attributable to the defendant, it is not error for the court to refuse to allow withdrawal of it.” See Acee v. State, 935 So.2d 1258, 1258-59 (Fla. 5th DCA 2006) (quoting Johnson v. State, 648 So.2d 263 (Fla. 5th DCA 1994)).

When a defendant enters an open plea, he or she indicates a “willingness to accept anything up to and including the maximum possible sentence.” Wagner, 895 So.2d at 457 (quoting Simmons v. State, 611 So.2d 1250, 1253 (Fla. 2d DCA 1992)). Despite his open plea, Garren sought to withdraw his plea after he learned that he would serve jail time; in effect, although he knew he could receive a sentence up to 16 years, and despite the fact he received the lowest possible guideline sentence instead of the potential sentence of 16 years, he was simply displeased that he would have to do any jail time. The judge could not further reduce the sentence without finding statutory mitigation evidence or the state substantially reducing the charges filed in the information.

The panel’s opinion states that since Garren made a pre-sentence motion for withdrawal, rule 3.170(f) should be liberally construed in favor of the defendant, as the law favors a trial on the merits. See Johnson v. State, 947 So.2d 1208 (Fla. 5th DCA 2007); see also Johnson v. State, 971 So.2d 212 (Fla. 4th DCA 2008). However, unlike those cases, Garren does not protest his innocence or seek to withdraw his plea to have a trial on the merits. Instead, he seeks to withdraw his plea to negotiate a better second plea. Thus, the purpose behind the rule is inapplicable in this case.

This court in Wagner, 895 So.2d at 456, stated that, “[i]n order to show cause why the plea should be withdrawn ... the defense must offer proof that the plea was not voluntarily and intelligently entered.” The burden is on Garren to establish good cause to set aside his plea. See Nicol v. State, 892 So.2d 1169, 1171 (Fla. 5th DCA 2005). Since this court has held that trial courts need not advise defendants of the minimum sentence that may be imposed, Wagner, 895 So.2d at 458, absent a finding that there was an inadequate Faretta inquiry, I would find that Garren did not establish good cause and, thus, the trial court did not abuse its broad discretion.

      . See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). As explained in Watkins v. State, 959 So.2d 386, 387 (Fla. 2d DCA 2007), before allowing a defendant to proceed at any critical stage of a criminal proceeding without representation, a trial court is required by Florida Rule of Criminal Procedure 3.111(d)(2) and Faretta "to inform the defendant of the disadvantages and dangers of self-representation and to warn him of the severity of the charge and the possible sentence.” Although Garren did not raise the trial judge's failure to follow these dictates as a separate issue on appeal, we note that "[t]he failure of a trial court to conduct an adequate Faretta hearing is per se reversible error.” Id. (citations omitted).

      . Notwithstanding Garren’s later less than truthful statements when accompanied by a lawyer that he could neither read nor write, at his arraignment he stated he had a ninth grade education and could read and write.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Gregory BEVARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-733.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2008.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The appellant, Gregory Bevard, was charged with a sexual battery upon his niece, a person less than 12 years of age, in violation of section 794.011(2), Florida Statutes (2004), and with a lewd or lascivious offense committed upon the same child, a person less than 16 years of age, in violation of section 800.04(5), Florida Statutes (2004). A jury found him guilty of a simple battery, a lesser included offense of the first charge, and guilty as charged with respect to the second count. In this appeal Mr. Bevard raises four points. While we find no error and affirm the judgment and sentence in all respects, one point deserves some exploration.

After the parents of the victim discovered what Mr. Bevard was purportedly doing to their daughter, they contacted the police. Although the law enforcement authorities attempted to question Mr. Bevard both here and in Virginia, where he had traveled when the parents discovered his questionable behavior, Mr. Bevard declined to be interviewed and referred the authorities to his lawyer. Mr. Bevard eventually returned to Florida, at which point the Seminole County Sheriffs Office suggested to the mother of the victim that she confront Mr. Bevard about the allegations while she was wearing a sound transmission device. She agreed.

The mother went to Mr. Bevard’s home and knocked. When he answered the door, he appeared to be happy to see her and evidently invited her inside. The trial court found in accordance with Mr. Be-vard’s testimony that Mr. Bevard and the mother of the victim enjoyed a close family relationship before the question of his behavior with his niece arose. Once inside, the victim’s mother aggressively interrogated him for about one hour and forty-five minutes. She made a number of threats at the beginning of the conversation, including telling him that she would not leave until he talked to her, and threatened to tell his neighbors that he was a pedophile. He initially denied any improprieties. At the end of the conversation, however, he confessed to some improper acts, while continuing to deny others.

At the suppression hearing Mr. Bevard admitted that he was not physically threatened by the mother, and that he made no attempt to remove her or have her removed from his home. He asserted that he gave the incriminating statements because he was tired and wanted to go to bed, and not because he felt threatened. Finally, when asked by the State at the suppression hearing if he had had a “free exchange” with the victim’s mother, he acknowledged that he did. The trial court found that the statements were voluntary and allowed them into evidence. Mr. Be-vard contends that the State failed to establish by a preponderance of the evidence that his statements were voluntary, and that the trial court, therefore, erred when it received them in evidence.

A challenged motion to suppress often presents mixed questions of law and fact for the consideration of a reviewing court. McMaster v. State, 780 So.2d 1026, 1028 (Fla. 5th DCA 2001) (citing Lester v. State, 754 So.2d 746 (Fla. 1st DCA 2000)). Findings of fact made by the trial court in resolving the motion are subject to the substantial competent evidence standard. Ikner v. State, 756 So.2d 1116, 1118 (Fla. 1st DCA 2000). The application of the law by the trial court, however, is reviewed in accordance with the de novo standard. McMaster, 780 So.2d at 1028; State v. Ramos, 755 So.2d 836 (Fla. 5th DCA 2000). Significantly, a trial court’s ruling in this regard is entitled to a presumption of correctness, and the evidence and reasonable inferences drawn from it must, therefore, be interpreted in a manner most favorable to sustaining the ruling. See Connor v. State, 803 So.2d 598, 605 (Fla. 2001), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002); Murray v. State, 692 So.2d 157, 159 (Fla.1997).

Mr. Bevard contends that the State failed to establish that the statements he made to the mother of the victim were voluntary. Recognizing that he had not yet been arrested or charged with any crime, and was not in custody at the time of the interrogation, he does not argue on this appeal that either his Sixth Amendment right to counsel or his Fifth Amendment right to the warnings required by Miranda were violated. See State v. Russell, 814 So.2d 483 (Fla. 5th DCA 2002). Rather, he asserts that even though he was not in custody, because the interrogation was conducted by a state agent, the State had the burden of establishing by a preponderance of the evidence that his statements were voluntary. Jorgenson v. State, 714 So.2d 423, 426 (Fla.1998); Roman v. State, 475 So.2d 1228, 1232 (Fla. 1985), cert. denied, 475 U.S. 1090, 106 S.Ct. 1480, 89 L.Ed.2d 734 (1986). While we agree with this proposition of law, when we apply the presumption of correctness to the finding by the trial court that the statements were made voluntarily, we conclude that there was no error in their admission.

Of primary importance in determining the voluntariness of a confession is whether the defendant’s free will has been overcome. Black v. State, 630 So.2d 609, 614-15 (Fla. 1st DCA 1993), review denied, 639 So.2d 976 (Fla.1994); State v. Crosby, 599 So.2d 138, 140 (Fla. 5th DCA 1992). Here, while the mother of the victim did some yelling and cursing, and threatened to tell anyone who asked that Mr. Bevard was a pedophile, it is likewise clear that Mr. Be-vard invited her into his residence, and made little effort to get her to leave. Moreover, Mr. Bevard, who was not then in custody, did not make his incriminating statements until the end of the interview, well after any harassment was essentially completed. In addition, he testified that he made the comments in question to get rid of her so that he could go to sleep, and not because he was intimidated. Finally, Mr. Bevard only admitted some of the allegations, while steadfastly denying the remainder. As there was substantial competent evidence to support the determination of voluntariness, we cannot say that the trial court abused its discretion. Accordingly, we affirm the judgment and sentence.

AFFIRMED.

ORFINGER and TORPY, JJ., concur.


author: PER CURIAM.

text:
    Sloan M. WORLO, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3953.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2008.

      Sloan M. Worlo, Lake City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Brigid E. Collins, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Sloan M. Worlo, appearing pro se, appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. All claims were correctly denied as facially insufficient. However, the Florida Supreme Court has recently ruled that a defendant who files a legally insufficient rule 3.850 motion should be given at least one opportunity to correct the deficiency, unless it is apparent that the defect cannot be corrected. See Spera v. State, 971 So.2d 754 (Fla.2007), reh’g denied, No. SC06-1304 (Fla. Dec. 26, 2007). Although the trial court denied Worlo’s motion prior to the issuance of Spera, this case was in the appellate “pipeline” when Spera was decided. Therefore, Spera applies. See Smith v. State, 598 So.2d 1063, 1065-66 (Fla.1992). Worlo should be given a “reasonable period” to amend. Spera, 971 So.2d at 761. Accordingly, we reverse the court’s denial of Wor-lo’s motion and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: VILLANTI, Judge.

text:
    Scott BISHOP, Appellant, v. Bridget BISHOP, Appellee.
    No. 2D07-2745.
    District Court of Appeal of Florida, Second District.
    March 14, 2008.

      Andrew J. Rodnite, Jr., of Reeser, Rod-nite, Outten & Zdravko, P.A., Palm Harbor, for Appellant.
    Jan Soeten, Jr., of Brandon Law Offices of Jan Soeten, Jr., P.A., Brandon, for Ap-pellee.
   VILLANTI, Judge.

In this appeal, Scott Bishop (the Husband) challenges two aspects of the final judgment of dissolution of marriage: (1) the award of permanent alimony to Bridget Bishop (the Wife) and (2) the award of alimony and child support as applied retroactively to May 1, 2006. Finding no abuse of discretion, we affirm on the second issue without comment. However, we reverse on the first issue because the trial court applied the incorrect law concerning the term of the parties’ marriage.

It was undisputed below that the term of the parties’ marriage from its inception to the parties’ separation was just over twelve years. Shortly after separating, the Wife filed her petition seeking dissolution and assorted relief, including alimony. In this case, the trial court correctly chose the petition’s filing date as “the only sensible date from which to measure the termination of the marriage because on this date, the party filing the [pjetition avers that the marriage is irretrievably broken.” Martinez v. Martinez, 761 So.2d 433, 436 n. 1 (Fla. 3d DCA 2000), overruled in part on other grounds by Zold v. Zold, 911 So.2d 1222, 1234 (Fla.2005). Further, the parties do not dispute that the resulting term of their marriage qualifies it as being in the “gray area” and that there is thus no resulting presumption for or against an award of permanent alimony. See, e.g., Jessee v. Jessee, 961 So.2d 1118, 1120 (Fla. 2d DCA 2007) (121/2-year marriage); Gregoire v. Gregoire, 615 So.2d 694, 694 (Fla. 2d DCA 1992) (11-year marriage).

Nevertheless, the final judgment clearly indicates that “[t]he [cjourt finds the parties’ marriage to be long term, with the accompanying presumption in favor of permanent alimony.” This clear legal error cannot be regarded as a mere misnomer nor can it be attributed to a scrivener or word processing error for two reasons. First, when the parties proactively brought this error to the trial court’s attention on a motion for rehearing, the court denied the motion without comment. Second, we cannot determine from the face of the record and under the circumstances of this case whether the trial court would have awarded permanent alimony had it applied the correct standard. Therefore, we are compelled to reverse the award of permanent alimony.

On remand, the trial court must apply the correct legal standard applicable to a “gray area” marriage in determining whether an award of permanent alimony is appropriate. In doing so, the court in its discretion may consider further evidence.

Affirmed in part, reversed in part, and remanded for further proceedings.

ALTENBERND and CANADY, JJ„ Concur.


author: BENTON, J.

text:
    P.Y., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D07-3989 to 1D07-3992.
    District Court of Appeal of Florida, First District.
    March 18, 2008.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Jennifer J. Moore, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

We reverse the disposition order in this juvenile delinquency case because the trial court did not adequately explain its basis for disregarding the recommendation the Department of Juvenile Justice (DJJ) made in its predisposition report to restore P.Y. to probation.

In a disposition proceeding, the court determines whether a culpable juvenile should be committed to the custody of the DJJ and, if so, at what restrictiveness level. § 985.433(6), Fla. Stat. (2007). “This determination shall include consideration of the recommendations of the department, which may include a predisposition report.” Id. If the court determines that commitment is warranted, “such determination shall be in writing or on the record of the hearing,” and “shall include a specific finding of the reasons for the decision to adjudicate and to commit the child to the department.” § 985.433(7), Fla. Stat. (2007).

Although section 985.433(7), Florida Statutes (2007), confers discretion to depart from the DJJ’s recommendation, the court may not deviate merely because it disagrees with the recommendation. See A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999). The court must articulate reasons for not following the DJJ recommendation, and any factual predicate must be supported by a preponderance of the evidence. Id. In the event of commitment, moreover, the stated “reason[s] must have reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child.” Id. (quoting J.L.O. v. State, 721 So.2d 440, 443 (Fla. 5th DCA 1998) (Griffin, C.J., dissenting)). See also L.R. v. State, 948 So.2d 827, 830 (Fla. 2d DCA 2007) (reversing and remanding for a new disposition hearing when “[i]n committing L.R. to a residential facility instead of placing her on probation, the trial court failed to indicate how the restrictiveness level related to L.R.’s needs or how the nature of her offense required such commitment”).

Here P.Y. had originally been placed on probation in two grand theft auto cases and a trespass case consolidated for disposition. While he was on probation, a confrontation at his home resulted in an additional charge of resisting an officer without violence, as well as revocation proceedings. In a predisposition report, the DJJ recommended that P.Y. remain on probation, but at the disposition hearing the trial court ordered moderate-level commitment. When P.Y.’s attorney objected, the trial judge stated: “The reasons for the deviation are based on the P.D.R. itself, the recitation of the facts, and ... the fact that the child has engaged in a continuing pattern of delinquent behavior. And this requires a more restrictive disposition to protect the public.”

The trial judge erred by failing to explain why or how he reached a different conclusion than the DJJ based on facts already set out in the predisposition report. See K.B. v. State, 923 So.2d 1261, 1262 (Fla. 1st DCA 2006) (“[W]here the trial court’s deviation is based on evidence or factors already considered by the Department, the trial court must explain why such evidence led the court to reach a conclusion which differs from the Department’s.” (citing J.W.M. v. State, 911 So.2d 1289 (Fla. 1st DCA 2005))); D.B. v. State, 923 So.2d 1259, 1260 (Fla. 1st DCA 2006).

Basing its decision on the protection of the public did not absolve the court of its responsibility to relate the level of commitment it imposed to the needs or attributes of the particular child. See A.C.N., 727 So.2d at 370 (Griffin, C.J., dissenting) (quoting J.L.O. v. State, 721 So.2d 440, 443 (Fla. 5th DCA 1998)). The trial court failed to tailor the level of commitment to the needs either of P.Y. or of the public with specific regard to P.Y., and failed even to address the question of what sanction his particular, individual situation called for.

The trial court’s inadequate reasons require reversal. See K.B., 923 So.2d at 1262; D.B., 923 So.2d at 1260. See also L.R., 948 So.2d at 830. Accordingly, we reverse the disposition order and remand for a new disposition hearing.

Reversed and remanded.

DAVIS and THOMAS, JJ., concur.


author: BENTON, J. POLSTON, J.,

text:
    George REYES, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1611.
    District Court of Appeal of Florida, First District.
    March 18, 2008.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Giselle Lylen Rivera, Assistant Attorney General and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appel-lee.
   BENTON, J.

George Reyes appeals his conviction for aggravated assault on his former wife, with a firearm but without intent to kill, in violation of sections 784.021(l)(a) and 775.087(2)(a)(l.), Florida Statutes (2006). We reverse. The trial court erred in allowing evidence concerning sexual escapades with other people outside the country at some unspecified time. The State did not establish that admission of this irrelevant evidence was harmless beyond a reasonable doubt.

The trial court abused its discretion in allowing irrelevant evidence over appellant’s repeated objections. See Lewis v. State, 754 So.2d 897, 901 (Fla. 1st DCA 2000). Evidence regarding appellant’s earlier conduct in another jurisdiction was apparently intended to “inflamef ] the jury or appeal[ ] improperly to the jury’s emotions,” and should have been excluded. Steverson v. State, 695 So.2d 687, 688-89 (Fla.1997) (quoting C. Ehrhardt, Florida Evidence § 403.1 at 100-03 (2d ed. 1984)). Jurors might understandably take a dim view of such conduct, and hold it against a defendant standing trial on unrelated charges. Even the most conscientious juror could find tales of cavorting with prostitutes in foreign climes a distraction.

By motion in limine, Mr. Reyes sought to foreclose evidence of any activities abroad with prostitutes, on grounds such evidence did not tend to prove him guilty of threatening his former wife with a gun in Pensacola on September 28, 2006. The trial court rejected the argument that this evidence was irrelevant and highly prejudicial, agreeing with the State that the jury needed to hear the evidence in order to understand fully the nature of the relationship between appellant and his ex-wife, the alleged assault victim. The trial court denied the motion in limine, overruled trial objections, and later denied a motion for new trial that argued, among other things, that the trial court had erred by admitting irrelevant and prejudicial evidence.

The State’s evidence of conduct antedating the alleged assault by days, weeks, months or possibly years neither tended to prove nor to disprove any material fact in issue. It therefore failed to meet the threshold test of admissibility — relevancy. See Johnson v. State, 130 So.2d 599, 600 (Fla.1961) (observing that “[t]he test of admissibility is relevancy” and “[t]he test of inadmissibility is lack of relevancy”); see also §§ 90.401-90.402, Fla. Stat. (2007). While the State argues the evidence was relevant “to prove Appellant’s motive and to assist the jury in understanding the context in which the crime occurred,” the disputed evidence does not, in law or logic, tend to prove a motive to commit the alleged assault or any other material fact. It tends rather to show nothing more than bad character. See Smith v. State, 464 So.2d 1340, 1341 (Fla. 1st DCA 1985) (observing that, in general, evidence whose “sole relevancy is to prove the accused’s bad character or propensity” is inadmissible); see also § 90.404, Fla. Stat. (2007).

Not only did the jury hear highly prejudicial evidence of irrelevant conduct at another time and place, the prosecutor referred to the alleged misconduct during both opening statement and closing argument. As the beneficiary of the trial court’s error, the State has the burden to “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict,” in order to avoid reversal of appellant’s conviction. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The State has not carried that burden here. A reviewing court cannot lawfully “substitute[ ] itself for the jury, examine! ] the permissible evidence, exclude!] the impermissible evidence, and determine!] that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence.” Id. at 1136. The State did not prove the absence of any reasonable possibility that the trial court’s error contributed to appellant’s conviction. See id. at 1135. We cannot conclude, upon examination of this record, that the trial court’s error was harmless. Accordingly, we reverse the conviction and remand for a new trial.

Reversed and remanded.

WEBSTER, J., concurs; POLSTON, J., dissents with opinion.

POLSTON, J.,

dissenting.

I respectfully dissent because the trial court did not abuse its discretion in admitting the evidence relating to appellant’s sexual escapades while in a relationship with the victim. The trial court admitted the evidence on the basis of the State’s argument that the evidence described the “open” relationship between the victim and appellant, thereby describing the context of the crime. See Valdes v. State, 930 So.2d 682, 684 (Fla. 3d DCA 2006) (ruling that the trial court did not abuse its discretion in permitting the former wife to testify regarding defendant’s domestic violence in case brought against, him for sexual abuse against his stepdaughters; the testimony placed the relationship between the defendant and the stepdaughters into context, and explained the delay for the minors reporting the abuse); Smiley v. State, 704 So.2d 191, 194 (Fla. 1st DCA 1997) (ruling that the trial court did not abuse its discretion in allowing evidence of a prior physical incident as relevant to suggest the full context of the charged crime and motive); C. Ehrhardt, Florida Evidence, § 404.17 n. 6 at 263-64 (2007 Edition) (noting that the Florida Supreme Court has allowed evidence to show general context in which criminal action occurred, collecting cases).

The crime arose out of the relationship between the victim and appellant. The evidence describing their relationship was not unfairly prejudicial. Keeping this information from the jury would give it a false context of how the criminal action occurred.

      . Appellant also argues that the trial court erred in instructing the jury that it could not simultaneously convict him of improper exhibition of a firearm and of assault, both lesser-included offenses that appeared on the verdict form. See Gregory v. State, 937 So.2d 180, 183 (Fla. 4th DCA 2006); Giangrasso v. State, 793 So.2d 71, 73 (Fla. 4th DCA 2001). We do not address the merits of this argument because appellant failed to preserve the issue by timely objection in the trial court.

      . A trial court must exclude even relevant evidence when the danger of unfair prejudice its admission poses substantially outweighs any probative value the evidence has. See McDuffie v. State, 970 So.2d 312, 326-27 (Fla. 2007); Sliney v. State, 944 So.2d 270, 286 (Fla.2006) ("Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”) (quoting § 90.403, Fla. Stat. (2007)). Evidence that has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one” is unfairly prejudicial. McDuffie, 970 So.2d at 327 (quoting Brown v. State, 719 So.2d 882, 885 (Fla.1998)).


author: CHUMBLEY, DOUGLAS J., Associate Judge.

text:
    STARLINES INTERNATIONAL CORP., Appellant, v. UNION PLANTERS BANK, N.A., n/k/a Regions Bank, et al., Appellees.
    No. 4D06-3865.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.

      Mark C. Holmberg of Richard M. Mog-erman, P.A., Plantation, for appellant.
    Frank J. Roza and David S. Garbett of Garbett, Stiphany, Allen & Roza, P.A., Miami, for appellee Union Planters Bank, N.A., n/k/a Regions Bank.
   CHUMBLEY, DOUGLAS J., Associate Judge.

This is an appeal from a final summary judgment entered in favor of the Appellee, the Bank, which foreclosed its mortgage lien in the amount of $1,016,730.76 on the commercial property held by Alma Dawn O’Connell, her son, O’Con Manufacturing Inc., and Appellant, Starlines International Corporation (Starlines). Because we find that the “dragnet” clause may be unenforceable in these circumstances and that there are genuine issues of material fact, we reverse.

The relevant facts are as follows. On March 27, 2001, Alma Dawn O’Connell (Alma), her son, and their company, O’Con Manufacturing Inc., (“the Borrowers”) took out a loan from Union Planters Bank, now called Regions Bank (the Bank), for $825,000.00. (“Note 1”). The note for this loan was secured by Alma’s personal guaranty and by a security interest in the assets of her company. A short time later, on April 26, 2001, Alma took out another loan from the Bank for $400,000.00. (“Note 2”). The note associated with this loan was secured by a mortgage on real property owned by Alma. The mortgage was duly recorded on or about May 8, 2001.

The mortgage contained language clearly referencing Note 2:

NOW THEREFORE, to secure the payment of the Loan and such future or additional advances as may be made by Mortgagee, at its option and for any purpose, to Mortgagor or Mortgagor’s permitted successor(s) in title, provided that all those advances are to be made within twenty (20) years from the date of this Mortgage (the total amount of indebtedness secured by this Mortgage may decrease or increase from time to time, but the total unpaid balance so secured at any one time shall not exceed twice the original principal amount of the Loan, plus interest and any disbursements made for the payment of taxes, levies or insurance on the property covered by the lien of this Mortgage with interest on those disbursements), and to secure the full and faithful performance of the covenants and agreements contained in the Note, this Mortgage and all other instruments and documents executed in connection with the Loan by Mortgagor and/or any other Obligor (the Loan Documents), Mortgagor hereby grants .... Mortgagee a security interest in... .(The Property).

In addition, Note 2 clearly contained a “dragnet clause” in Section 3 of the note which in pertinent part stated:

Security Interest. As security for the payment of this Note, and any renewals, extensions or modifications hereof, and any other liabilities, indebtedness or obligations of Borrower to Bank, however or whenever created, Borrower hereby grants to Bank a security interest in any and all collateral pledged to the Bank as set forth below and any and all collateral now or hereafter pledged to the Bank pursuant to a security agreement which provides for such security interest: (a) Florida Real Estate Mortgage, Assignment of Leases and Rents and Security Agreement (the “Mortgage”) of even date herewith executed by Borrower in favor of Bank encumbering real estate situate in Broward County, Florida, more particularly described on Schedule “A” attached hereto and by this reference made a part thereof ... All such property and all other property securing Borrower’s liabilities to Bank will hereinafter be referred to as the “Collateral”. The Collateral shall also serve as security for all other liabilities (primary, secondary, direct, contingent, sole, joint or several) due or to become due which may be hereafter contracted or acquired, of each Obligor (as defined above) to Bank, whether such liabilities arise in the ordinary course of business or not .... [italics added].

In 2002, after the mortgage was recorded, Starlines purchased a one-half interest in the real property secured by the mortgage. Starlines was aware that Note 2 above was secured by the Mortgage but was unaware that Note 1 was also secured by the mortgage by way of the dragnet clause. After Starlines purchased the one-half interest in the real property, they entered into an agreement with Alma to share the real property and operate their respective businesses from the property. In addition, there was evidence below that Alma represented to Starlines at the time of the purchase that the real property provided security only for Note 2 and that there was no pre-existing debt secured by the mortgage.

In November 2004, the Borrowers defaulted on Note 1, and in March 2005, the Bank initiated this action against the Borrowers. In July 2005, the Bank added Starlines as a non-obligor co-defendant pursuant to its recorded interest in the real property. In response to the complaint filed by the Bank, Starlines alleged that its interest was not inferior to that of the Bank, and that as a subsequent purchaser without notice, its interest in the real property was superior to that of the Bank.

On August 8, 2006, after hearing argument for all parties, the trial court entered Final Summary Judgment of Mortgage Foreclosure and for Damages in favor of the Bank. The judgment entered foreclosed the Bank’s lien on the real property in the amount of $1,016,730.76 and had the effect of completely erasing Starlines’ ownership interest in the property. In so doing, the trial court found that the mortgage provided security for Note 1 by virtue of the dragnet clause in Note 2. The trial court reasoned that since the mortgage was recorded and expressly referenced Note 2, Starlines was on notice to look at Note 2, which contained the dragnet clause. The trial court stated during hearings on the motion for summary judgment that the mortgage’s reference to Note 2 would place third parties on constructive notice and require them to look closely at the terms of Note 2. If Starlines had done that, it would have been put on inquiry notice as to preexisting debts that may be encompassed within the dragnet clause. Thus, according to the reasoning of the trial court, Starlines was on notice and thus found its interest in the real property inferior to that of the Bank.

The facts of the instant case provide this Court with the opportunity to revisit a somewhat controversial topic: the enforceability of boilerplate “dragnet clauses” in lending documents which purport to secure pre-existing and after-acquired debt by mortgages or other collateral. Issues surrounding dragnet clauses often pit the freedom and enforceability of contracts against the clause’s potential to produce unexpected and sometimes devastating results to unsuspecting borrowers and third parties. The case law from around the nation construing these sometimes draconian clauses is legion with courts reaching various conclusions regarding their enforceability in a multitude of factual scenarios. Case law in Florida is no exception. Much of the case law on this topic seems to concern the enforceability of dragnet clauses as they may apply to pre-existing debts and obligations.

For example, the Third District in United National Bank v. Tellam, 644 So.2d 97 (Fla. 3d DCA 1994), held that dragnet clauses are unenforceable to secure preexisting debts and obligations unless the pre-existing debts or obligations are specifically identified by name in the dragnet clause. Id. at 98. In so holding, the Third District noted that it was falling in line with a number of courts from around the country which had held the same. See, e.g., Nat’l Bank v. Blankenship, 177 F.Supp. 667 (E.D.Ark.1959), aff'd sub nom. Nat’l Bank v. Gen. Mills, Inc., 283 F.2d 574 (8th Cir.1960); Lundgren v. Nat’l Bank, 756 P.2d 270 (Alaska 1987); Wong v. Beneficial Sav. & Loan Ass’n, 56 Cal.App.3d 286, 128 Cal.Rptr. 338, 342 (1976); First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 647 P.2d 1268 (1982). Further, in Tellam, the Third District noted that dragnet clauses could sometimes have unexpected and unintended consequences to unsuspecting borrowers. To prevent such consequences, the Third District reasoned that it would be easy to identify specifically all pre-existing debt in mortgage dragnet clauses and held that lenders should be forced to do so should they wish to secure pre-existing debts by mortgages and notes executed at a later date. See Tellam, 644 So.2d at 98-99.

On the other hand, this Court has held that dragnet clauses are generally enforceable so long as the language of the clause is clear and unambiguous as to the parties’ intent to secure pre-existing debt as well as after acquired debt. See Robert C. Roy Agency, Inc. v. Sun First Nat’l Bank of Palm Beach, 468 So.2d 399 (Fla. 4th DCA 1985). In Judge Barkett’s dissent, however, she disagreed and noted that dragnet clauses are disfavored and should be enforced only after considering the circumstances of each case. Id. at 405 (Barkett, J., dissenting).

This case, however, presents a different situation than that presented in Robert C. Roy. In Robert C. Roy, this Court was considering a case where the lender attempted to enforce the dragnet clause against the borrower, arguing that the borrower knew the dragnet clause existed and that both the lender and the borrower intended the dragnet clause to cover preexisting and after acquired debt. On the other hand, this case involves enforcing a dragnet clause not only against the borrower but also against a third party, Star-lines, that had no involvement whatsoever with the negotiations that led up to the execution of Note 2 containing the dragnet clause. Further, this case involves a situation where Starlines could not discover that the mortgage also secured Note 1 from reviewing publicly recorded documents. Although the recorded mortgage clearly identified Note 2 and Note 2 contained the dragnet clause, Note 2 was not recorded. There is nothing in Note 2 that indicates that the dragnet clause encompassed Note 1. There was no evidence below that a review of any publicly recorded documents would have revealed that Note 1 was now secured by the mortgage that secured Note 2. Indeed, in this case, there is evidence that Starlines did what it reasonably could do when confronted with the dragnet clause in Note 2: it inquired of Alma as to whether any pre-existing debt was secured by the mortgage. According to an affidavit presented below, Alma told Starlines that there was no preexisting debt which was secured by the mortgage on the real property. Despite this assertion by Alma to Starlines, the trial court enforced the dragnet clause against Starlines in this case, effectively divesting Starlines of any equity in the real property.

This result is not equitable, and clearly is one of the “unexpected consequences” of dragnet clauses as envisioned by Judge Barkett in her dissent in Robert C. Roy. We believe that when confronted with the issue of enforcing a dragnet clause against someone other than the borrower, the better rule is that set forth in Tellam. As it relates to pre-existing debt, a dragnet clause will not be enforced against someone other than the borrower unless the dragnet clause specifically identifies the pre-existing debt to be included within its terms or unless it can be shown that the third party otherwise had notice that the specific pre-existing debt at issue was to be included within the grasp of the dragnet clause.

In this case, it is undisputed that the dragnet clause in Note 2 did not identify any specific pre-existing debt. Thus, the issue now is whether summary judgment is proper on the issue of whether Starlines was on notice that Note 1 was secured by the mortgage which secure Note 2. We believe that there are genuine issues of material fact which preclude summary judgment on the issue of notice. It is clear that no recorded document reveals that Note 1 is secured by the mortgage. The mortgage does not refer to Note 1 and although there is record notice of the existence of Note 2 and its dragnet clause, Note 2 does not make any specific reference to Note 1. Thus, there seems to be no question that Starlines had no express actual notice that Note 1 was secured by the mortgage.

On the issue of implied actual notice, however, there are genuine issues of fact which foreclose summary judgment. As stated by this Court in Flanigan’s Enterprises, Inc. v. Shoppes at 18th & Commercial, Inc., 954 So.2d 758 (Fla. 4th DCA 2007):

If a person has information that would lead a reasonable man to make further inquiry for his own protection, but fails to further investigate and learn what the inquiry would reasonably have uncovered, the person “must suffer the consequence of his neglect.” Chatlos v. McPherson, 95 So.2d 506, 509 (Fla.1957); Rafkind v. Beer, 426 So.2d 1097, 1099 (Fla. 3d DCA 1983)(quoting Sickler v. Melbourne State Bank, 118 Fla. 468, 159 So. 678, 679 (1935)), see also Citgo Petroleum Corp. v. Fla. E. Coast Ry. Co., 706 So.2d 383, 386 (Fla. 4th DCA 1998) (citing Chatios).

In this case, Starlines did have information from Note 2 that there may be pre-existing debt secured by the mortgage, and thus had a duty to inquire further. Starlines did not fail to investigate further. There is evidence that Starlines did inquire of Alma as to the existence of preexisting debt and received a negative response. The Bank takes the position that this is not sufficient inquiry, and Starlines should have consulted the Bank as to the existence of pre-existing debt. We believe there is a genuine issue of fact at least as to whether a reasonable person should have inquired further after receiving a negative response from the borrower. In short, there is a genuine issue of fact as to whether Starlines was on implied actual notice that Note 1 was secured by the mortgage, and thus, summary judgment was improper.

We reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

WARNER, and GROSS, JJ, concur.

      . The concurring opinion in Tellam went further and would require the lender to identify the pre-existing debt in both the mortgage and the note secured by the mortgage. See 644 So.2d at 99 (Cope, J., concurring).

      . There is some dispute as to whether the trial court considered this affidavit during the multiple hearings below. In its brief, however, the Bank states that the affidavit was considered below.

      . The affidavit also indicated that an unnamed representative from Pointe Bank also told Starlines that there was no pre-existing debt secured by the mortgage. It is unclear as to why Starlines consulted this bank but the affidavit is at least some evidence that Starlines attempted to discover the existence of pre-existing debt from someone other than Alma.

      . In reversing the summary judgment entered below, we specifically reject Starlines' assertion that the trial court was not a neutral and detached tribunal.


author: DAMOORGIAN, J.

text:
    Freddie EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1969.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.

      Carey Haughwout, Public Defender, Peggy Natale, Assistant Public Defender, and Karen G. Brown, Certified Legal Intern, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Freddie Edwards appeals his conviction and sentence following a jury trial. We reverse because the trial court improperly denied Edwards’s motion to disqualify the trial judge pursuant to Florida Rule of Judicial Administration 2.330. We find no merit to appellant’s claim that the trial court improperly denied his motion for judgment of acquittal.

By way of background, Edwards’s criminal case was originally assigned to Judge Marc Gold’s division. Judge David Krathen was selected to try the case from the trial pool. The two assistant state attorneys assigned to try the case were supervised by Judge Krathen’s daughter. Edwards timely filed the motion to disqualify the trial judge on the day he learned of the trial judge’s relationship to the supervising prosecutor. Fla. R. Jud. Admin. 2.330(e). In considering the motion, Judge Krathen noted that his daughter could not oversee the prosecutors or try the case herself because she was on vacation. The motion was denied on the ground that it was untimely.

Review of the denial of a motion to disqualify is de novo. Chamberlain v. State, 881 So.2d 1087, 1097 (Fla.2004) (citations omitted). A motion to disqualify is legally sufficient if the facts would objectively cause a well-founded fear in the moving party that they would not receive a fair and impartial trial. Zuchel v. State, 824 So.2d 1044 (Fla. 4th DCA 2002). The trial court shall rule only on the sufficiency of the motion and shall not pass on the truth of the facts alleged. Fla. R. Jud. Admin. 2.330(f).

Here, the trial judge stepped beyond the bounds of Rule 2.330. The judge improperly interjected himself into the motion by attempting to determine the truthfulness of the allegations in the motion and relying on facts not in the motion. See Corie v. City of Riviera Beach, 954 So.2d 68 (Fla. 4th DCA 2007) (objective fear of failing to receive a fair and impartial trial must be viewed from the movant’s perspective). Moreover, the allegations in the motion established that the motion was timely.

We therefore reverse and remand for a new trial with a successor judge.

Reversed and Remanded.

KLEIN and HAZOURI, JJ., concur.

      . The Florida Code of Judicial Conduct and the Supreme Court Judicial Ethics Advisory Committee recommend judicial disqualification when a person related within the third degree to the judge is acting as an attorney or has greater than a de minimis interest in the proceeding. Fla. Code. Jud. Conduct, Canon 3(E)(1)(d)(ii) & (iii) (2007); see also S.Ct. Jud. Ethics Adv. Comm., Op. 06-26 (2006); S.Ct. Jud. Ethics Adv. Comm., Op. 01-05 (2001); Comm. on Std. of Conduct Gov. Judges, Op. 91-17 (1991); Comm. on Std. of Conduct Gov. Judges, Op. 82-17 (1982). An attorney who supervises trial counsel has greater than a de minimis interest in the proceeding.


author: SAWAYA, J.

text:
    Ray RAWLINGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3968.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2008.

      James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Once in a while, a case will come our way involving conduct of a criminal defendant that is so bizarre, it is virtually inexplicable. But we read the record and we see that it actually happened. This is such a case. We also see from this record how misfortune can befall police officers when it is least expected.

In the early morning hours of September 15, 2005, Officer Stiles and Officer Kenney, dressed in their police uniforms, responded to a 9-1-1 call. When they arrived at the area specified by the dispatch, they parked their marked police cars on the side of the road, exited their vehicles, and discussed their observations, especially the fact that they did not see anyone in the vicinity. Then, Stiles heard what sounded like a dog barking behind him. He turned to look and there was Rawlings, crouched on the ground some distance away. Rawlings appeared to be saying something to the officers, but they could not understand what it was.

Rawlings stood up and began to walk down the street. He then turned around and started moonwalking. Rawlings turned around once again and began pretending that he was riding on a skateboard. Rawlings disappeared behind a nearby building, but he reappeared a short while later. Stiles observed that Rawlings’ fists were closed, he was breathing hard, and his chest was heaving. A harbinger of the difficulties the officers were about to encounter came when Rawlings began approaching the officers, exclaiming in a raspy tone of voice, “[A]in’t nothing going to save you now.” With his fists still clenched, Rawlings quickened his pace toward the officers and placed his left hand into his pocket. Stiles, fearing that Rawl-ings was going to attack the two officers, ordered Rawlings to halt and take his hand out of his pocket. Rawlings did not obey.

Stiles drew his gun and Kenney drew her taser as they both continued to warn Rawlings to stop and to get down on the ground. Rawlings refused. As Rawlings advanced upon the officers, Kenney commanded, “[S]top or I’m going to tase you.” Rawlings continued to advance, exclaiming “F — k you, shoot me.” Stiles, recognizing that they were going to need assistance, summoned a nearby officer for help. Officer Demps arrived and attempted to reason with Rawlings, but to no avail. Rawl-ings now advanced on the three officers, hurling profanities at them.

Kenney continued to warn Rawlings that he was about to be tased, but Rawlings did not heed the warnings. As Rawlings got closer, Kenney discharged the taser and two probes found their mark on Rawlings. The electrical surge disrupted Rawlings’ muscular function and he went down to the ground. The officers attempted to secure Rawlings in handcuffs.

Rawlings refused to allow the officers to handcuff him. Free from the debilitating shock of the taser, Rawlings continued his attack. As Stiles attempted to secure Rawlings in the handcuffs, Rawlings reached up and grabbed Stiles by the testicles. Stiles writhed in pain. In order to extricate Stiles from this predicament, Kenney flipped the switch on the taser and fifty thousand volts of electricity once again coursed through Rawlings’ body. But unfortunately for Stiles, who was still caught in Rawlings’ grip, half of the electrical current passed through Rawlings and into Stiles. The shock jolted Stiles and knocked him back.

Rawlings was able to regain his feet, get into a boxer’s stance, and charge Stiles. Punches were exchanged and Rawlings was knocked back against one of the patrol cars. Stiles and the other two officers continued to attempt to secure Rawlings in handcuffs. However, Rawlings continued the attack. During the ensuing melee, Rawlings once again grabbed the testicles of the hapless Stiles. Eventually, Stiles was able to pry himself loose from Rawl-ings’ grip, this time without the use of the taser. The struggle continued, and the three officers finally secured Rawlings in the handcuffs.

Rawlings was tried and convicted of resisting a law enforcement officer with violence, battery on a law enforcement officer, and two counts of assault on a police officer. For the first two offenses, Rawl-ings was sentenced to ten years concurrent as a habitual felony offender, with the first five years to be served as a prison releasee reoffender (PRR). He was sentenced to time served for the assault convictions.

Incredibly (we say this in light of the injuries Rawlings inflicted on Stiles and the other officers), Rawlings’ main theory of defense was police brutality. Rawlings neither testified nor produced any evidence. During the State’s case-in-chief, Stiles was called as a witness. During cross-examination of Stiles, Rawlings attempted to establish his claim of police brutality by asking Stiles whether he knew that a number of people had died as a result of the taser. The prosecutor objected and the court sustained the objection. Rawlings claims it was error to prevent his cross-examination of Stiles on this issue. We disagree. As the State correctly points out, Rawlings did not properly preserve this issue because he failed to proffer what the officer’s answer to the objected-to question would have been. See Frances v. State, 970 So.2d 806 (Fla.2007); Woodson v. State, 488 So.2d 858 (Fla. 5th DCA 1986). Even if the issue had been preserved, the record reveals the trial court made it clear that Rawlings would be allowed to pursue the matter if he could establish a proper predicate for the testimony. Rawlings failed to do so and, therefore, the trial court did not err in sustaining the State’s objection. See McCoy v. State, 853 So.2d 396 (Fla.2003).

Rawlings also contends the trial court erred by sentencing him as a PRR on count one, resisting a law enforcement officer with violence, and on count two, battery on a law enforcement officer. As to the battery charge, we agree with Rawl-ings because battery is not a felony that necessarily involves the use or threat of physical force or violence. State v. Hearns, 961 So.2d 211 (Fla.2007); Brookens v. State, 963 So.2d 901 (Fla. 5th DCA 2007). However, the trial court did not err in sentencing Rawlings as a PRR for resisting an officer with violence because violence is a necessary element of the offense. See § 843.01, Fla. Stat. (2005); Walker v. State, 965 So.2d 1281 (Fla. 2d DCA 2007).

Accordingly, we strike the PRR portion of Rawlings’ sentence on count two, battery on a law enforcement officer, and remand for resentencing on that count. We affirm in all other respects.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, C.J. and GRIFFIN, J., concur.


author: LAWSON, J.

text:
    STATE of Florida, Petitioner, v. Jimmie Allan CLYATT, Jr., Respondent.
    No. 5D07-989.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2008.
    Brad King, State Attorney, and Deborah A. Hunt, Assistant State Attorney, Inverness, for Petitioner.
    James F. Cummins, Inverness, for Respondent.
   LAWSON, J.

The State of Florida seeks certiorari review of a trial court order barring it from calling independent witnesses to prove that Candi Hoerner did not consent to a battery allegedly committed on her by Jimmie Allan Clyatt, Jr. We have jurisdiction. State v. Pettis, 520 So.2d 250 (Fla.1988). Finding that the order on review departs from the essential requirements of law, we grant the writ and quash the order.

Clyatt was charged by information with felony battery pursuant to section 784.03(2), Florida Statutes (2007), for touching or striking Candi Hoerner against her will. According to the State, Clyatt and Hoerner were ordering food from a KFC restaurant drive-through while involved in an altercation. From outside the car, several witnesses reported observing Clyatt, inside the car, beating Hoerner’s head against the car window; slapping and punching her in the face; grabbing her; and then choking her. As is often the case in domestic violence cases, Hoerner declined to cooperate with the State after Clyatt’s arrest. Therefore, the State was left in the position of either dropping the charge or attempting to prove the elements of simple battery solely through the testimony of its third-party witnesses. The State elected to prosecute.

To prove its case, the State must introduce evidence sufficient to convince a jury beyond a reasonable doubt that Clyatt touched or struck Hoerner against her will. § 784.03(l)(a)l. The State anticipates no problem establishing that Clyatt touched or struck Hoerner since its multiple eye-witnesses will testify that they observed Clyatt’s attack on Hoerner, and will presumably describe it in the same detail as is set forth in their respective witness statements. While this testimony will provide direct evidence of Clyatt’s physical actions, it will, of course, only constitute circumstantial proof that Hoerner did not consent to being punched, slapped, grabbed, choked and slammed against the car window. To say, however, that this evidence is “only” circumstantial unfairly discounts the probative value of the testimony. The account given by the multiple third-party witnesses, according to which Hoerner was also attempting to resist the attack, and after which she was visibly upset and crying, is unequivocal and appears to permit but one reasonable inference — that Hoerner in no way consented to the attack. However, because the State could not produce a Florida case stating that a purported battery victim’s lack of consent could be proved circumstantially, without the victim’s testimony, the trial court ordered that the State’s witnesses not be allowed to testify to their observations.

Although no Florida court has directly held that lack of consent can be established by circumstantial evidence in a simple battery case, Florida courts have recognized circumstantial evidence as sufficient to support a lack of consent finding in other types of criminal prosecutions. See, e.g., Conahan v. State, 844 So.2d 629, 636-37 (Fla.2003) (holding that the state’s circumstantial evidence was legally sufficient to establish that the victim did not consent to being tied to a tree, and thereby upholding a kidnapping conviction); Firestone v. State, 407 So.2d 1070, 1071 (Fla. 4th DCA 1981) (holding that circumstantial evidence was sufficient to support a jury finding that defendant entered a home without the victim’s consent, and thereby upholding a burglary conviction); see also, Hufham v. State, 400 So.2d 133, 135 (Fla. 5th DCA 1981) (holding that in a sexual battery prosecution “ ‘[cjonsenf is a relative term to be viewed under the circumstances of each case, ... and is essentially a question for the jury.”).

Additionally, Florida courts have routinely found circumstantial evidence sufficient to prove a victim’s or defendant’s state of mind on issues other than consent. See, e.g., L.R.W. v. State, 848 So.2d 1263 (Fla. 5th DCA 2003) (holding that the state may establish a victim’s “well-founded fear of imminent bodily injury” through circumstantial evidence, without the victim’s testimony, and thereby upholding an aggravated assault conviction); McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980), rev. denied, 392 So.2d 1376 (Fla.1980) (same); Gilbert v. State, 347 So.2d 1087 (Fla. 3d DCA 1977) (same); State v. Waters, 436 So.2d 66, 71 (Fla.1983) (noting that the intent element required for a burglary conviction involves “a state of mind” and “often can only be proved by circumstantial evidence”); Sewall v. State, 783 So.2d 1171, 1176 (Fla. 5th DCA 2001) (“Because intent to commit the theft usually cannot be proven by direct evidence, the intent may be inferred from the circumstances surrounding the illegal act.”) (citations omitted); Grover v. State, 581 So.2d 1379, 1380 (Fla. 4th DCA 1991) (“It is black-letter of course that intent, being a state of mind, is rarely if ever susceptible of direct proof. Almost inevitably, as here, it must be shown solely by circumstantial evidence.”) (citation omitted). We see no distinction between the use of circumstantial evidence to prove state of mind in these contexts and the State’s attempted use of circumstantial evidence to prove the victim’s lack of consent in this battery case. Additionally, we agree with our sister court that “[q]uestions of consent, force, resistance and fear are particularly within the province of the jury to determine.” State v. Hudson, 397 So.2d 426, 428 (Fla. 2d DCA 1981).

Generally, the test for admissibility of evidence is its relevance. See § 90.402, Fla. Stat. (2007) (“All relevant evidence is admissible, except as provided by law.”). Because the State’s evidence is clearly relevant to the issue of Hoerner’s lack of consent, and because there is no rule of law barring the State from using circumstantial evidence to prove lack of consent, we find that the trial court departed from the essential requirements of the law by prohibiting the State from eliciting the proffered testimony. Accordingly, we quash the trial court’s order. Whether the State’s circumstantial evidence will be sufficiently convincing to establish Hoerner’s lack of consent beyond a reasonable doubt is a question for the jury.

CERTIORARI GRANTED; ORDER QUASHED.

SAWAYA and EVANDER, JJ., concur.

      . In fairness to the trial judge, we note that his ruling was intentionally fashioned to permit appellate review of an issue on which there is no reported Florida case directly on point. Although the standard of review compels a finding that the court departed from the essential requirements of the law, recitation of this standard (as is often the case) should not be viewed as a poor reflection on the capability of the trial judge, or his handling of this case.

      . Section 784.03(2) defines simple battery as a third degree felony for any defendant with a prior battery conviction.

      . Simple battery can also be established with proof that a defendant intentionally caused bodily harm to another person. See § 784.03(l)(a)2.


author: TORPY, J.

text:
    Ricardo CLARKE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2708.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2008.

      Joseph A. Fisher, III, of Leventhal & Slaughter, P.A., Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   TORPY, J.

Appellant was convicted of aggravated assault with a firearm arising from a road-rage incident. The issues on appeal all concern the admission of testimony of the investigating officer that revealed the substance of eyewitness accounts from individuals who did not testify at trial. Although the State concedes that the testimony was inadmissible hearsay, it argues that the error was not preserved and was, nevertheless, harmless. We disagree and remand for a new'trial.

During a road-rage encounter, Appellant allegedly pointed a gun at the victim. When the police located Appellant, he acknowledged during an interview that there had been an altercation with the victim but denied that he had displayed a gun. Police also interviewed Appellant’s female passengers, one of whom apparently corroborated the victim’s version of the events.

During trial, the victim and investigating officer testified. Appellant’s passengers did not. During the examination of the officer, however, the prosecutor asked whether the passengers’ accounts had been “consistent” with that of the victim. Appellant’s hearsay objection was initially sustained but upon persistent questioning by the prosecutor, the court eventually permitted the deputy to answer “yes or no,” without elaborating on the answer by saying what the passengers told him. As to one of the passengers, the officer confirmed that her statement had been consistent with that of the victim.

As the State properly concedes, this testimony was inadmissible hearsay. See Cedillo v. State, 949 So.2d 339, 341 (Fla. 4th DCA 2007) (“ Where the implication from in-court testimony is that a non-testifying witness has made an out-of-court statement offered to prove the defendant’s guilt, the testimony is not admissible.’ ” (quoting Schaffer v. State, 769 So.2d 496, 498 (Fla. 4th DCA 2000))); Florence v. State, 905 So.2d 989, 990 (Fla. 4th DCA 2005) (“[E]ven if the actual statement made by the non-testifying witness is not repeated, references to the statement are inadmissible if the ‘inescapable inference ... is that a non-testifying witness has furnished the police with evidence of the defendant’s guilt.’ ” (quoting Schaffer, 769 So.2d at 499)); Acosta v. State, 825 So.2d 1076, 1077 (Fla. 4th DCA 2002) (officer’s testimony that non-testifying eyewitnesses he interviewed confirmed victim’s version of events was inadmissible hearsay).

We also conclude that the error was preserved. The record reveals that, although the trial judge said that he was sustaining the hearsay objection, he actually overruled it by expressly permitting the limited inquiry. Therefore, a motion for mistrial was unnecessary to preserve the issue. See, e.g., Simpson v. State, 418 So.2d 984, 986 (Fla.1982) (when objection clearly overruled, counsel not required to move for mistrial to preserve issue for appellate review).

We likewise reject the State’s contention that reversal is not warranted because the error was harmless beyond a reasonable doubt. Appellant’s defense was that, although he had a gun in his car, he did not point it at the victim. The victim’s testimony was the only direct evidence contradicting his version of events. The hearsay statement of Appellant’s passenger clearly supported the victim’s version. Under these circumstances, we cannot conclude that the State met its burden to establish harmless error.

REVERSED and REMANDED.

ORFINGER and LAWSON, JJ„ concur.

      . We agree with the State that the Confrontation clause issue was not preserved. Williams v. State, 967 So.2d 735, 747 n. 11 (Fla.2007).


author: THOMPSON, E., Senior Judge.

text:
    Andres PINEIRO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-1726.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2008.

      Andres Pineiro, Orlando, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   THOMPSON, E., Senior Judge.

Andres Pineiro seeks a belated appeal with respect to his judgment and sentence and the trial court’s summary denial of his rule 3.850 motion. See Fla. R. App. P. 9.141(c). We find that Pineiro is entitled to a belated rule 3.850 appeal, but not a belated direct appeal.

Pineiro was charged with two counts of conspiracy to traffic in heroin, 28 grams or more, and one count of trafficking heroin, 14 grams or more. The trial court found Pineiro competent on 11 July 2003. He pled guilty to all counts on 25 September 2003, and was sentenced to concurrent terms of 18 years’ incarceration.

On 24 October 2003, Pineiro’s counsel, James Woods, filed a notice of appeal. Pineiro’s appeal was dismissed on 20 January 2004, for failure to pay the filing fee or file an order of insolvency.

On 13 March 2006, Pineiro’s new counsel, Martin Cordell, filed an amended rule 3.850 motion for postconviction relief seeking “to have [the trial court] reconsider whether he was competent to proceed with sentencing on September 25, 2003.” The trial court denied the motion on 13 April 2006, finding that Pineiro’s rule 3.850 claim “should have been brought on direct appeal.” The trial court also stated that “[i]f Defendant believes that, through neglect, counsel failed to act on his request to appeal, he should file a motion for belated appeal pursuant to Rule 3.850(g).”

Pineiro now seeks a belated appeal of both his judgment and sentence and the trial court’s summary denial of his rule 3.850 motion. He alleges that attorney Cordell should have filed a petition to reinstate Pineiro’s direct appeal due to ineffective assistance of appellate counsel instead of filing a rule 3.850 motion.

In addition, Pineiro alleged that “[a]ll correspondence from the lower court on that motion was sent directly to Mr. Cor-dell. ..” and he did not learn of attorney Cordell’s filing of “the wrong motion” until his brother mailed him a copy of the trial court’s summary denial of the rule 3.850 motion on 10 May 2007. This assertion is verified by the rule 3.850 summary denial order, which demonstrates in the certificate of service that Pineiro did not receive a copy. Based on this fact, the State avers that it has no objection to granting a belated appeal of the order rendered 13 April 2006. For this reason, we grant Pineiro’s belated appeal of the court’s summary denial of his rule 3.850 motion.

However, we do not find that Pineiro is entitled to a belated direct appeal. Rule 9.141(c) allows a defendant to petition this court for a belated appeal of a final order within two years after the expiration of time for filing a notice of appeal, unless the petitioner alleges that he:

(I) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and
(II) should not have ascertained such facts by the exercise of reasonable diligence.

See Fla. R.App. P. 9.141(c)(4)(A). The rule does not expressly contemplate a situation such as the instant one where a notice of appeal was actually filed, but the appeal was later dismissed.

This court, however, has repeatedly equated an attorney’s failure to ensure that the appellate filing fee is paid or that an order of insolvency is entered (where such a failure leads to the dismissal of an otherwise timely appeal) with ineffective assistance of appellate counsel. See Spivey v. State, 827 So.2d 390 (Fla. 5th DCA 2002); Wyatt v. State, 697 So.2d 1289 (Fla. 5th DCA 1997); see also Burnside v. State, 720 So.2d 269 (Fla. 5th DCA 1998) (reinstating appeal because appellate counsel was ineffective for failing to file an initial brief); Johnson v. State, 719 So.2d 986 (Fla. 5th DCA 1998). As such, the rules of appellate procedure dealing with claims of ineffective assistance of appellate counsel are applicable to the instant situation. Specifically, Rule 9.141(c)(4)(B) states:

A petition alleging ineffective assistance of appellate counsel shall not be filed more than 2 years after the conviction becomes final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel.

Pineiro’s direct appeal became final on 20 January 2004, when this court entered a dismissal for failure to pay the filing fee or file an order of insolvency. Cf. Joseph v. State, 835 So.2d 1221 (Fla. 5th DCA 2003) (holding that the two-year time period for filing a rule 3.850 motion began to run from the date that the appellate court dismissed his direct appeal as that was the point in time that the judgment and sentence became final). Accordingly, Pineiro had two years from the date of dismissal, or until 20 January 2006, to file a petition for belated appeal alleging ineffective assistance of appellate counsel. The instant petition is untimely because it was not filed until 21 May 2007.

Furthermore, we do not find that Pinei-ro “was affirmatively misled about the results of the appeal.” See Fla. R. App. P. 9.141(c)(4)(B). Pineiro would have known that his direct appeal was dismissed no later than 21 September 2005, when attorney Cordell filed the rule 3.850 motion. Pineiro contends in the instant petition that the purpose behind his rule 3.850 motion was to essentially seek a belated appeal based on attorney Woods’ failure to pay the filing fee or file an order of insolvency. Because these facts do not equate to a scenario where Pineiro “was affirmatively misled about the results of the appeal,” his attempts to seek a belated appeal of his judgment and sentence are untimely.

Accordingly, we DENY Pineiro’s petition as it relates to his direct appeal and GRANT his petition as it relates to his rule 3.850 motion.

ORFINGER and TORPY, JJ., concur.


text:
    Sylvester MORMON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-933.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2008.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Brigid E. Collins, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Sylvester Mormon appeals the judgment and sentence imposed by the trial court after it found that Mormon violated his probation. Mormon contends that the trial court erred in concluding that he violated his probation based on the finding that he provided a false name to a law enforcement officer. We affirm on this issue. See Oslin v. State, 912 So.2d 672 (Fla. 5th DCA 2005).

Mormon also contends that the trial court failed to specify in the written judgment what conditions of probation he violated. He argues that the judgment must, therefore, be vacated. We agree. This court has consistently held that the trial judge must specify in the written order or judgment what conditions the defendant violated. Brinson v. State, 866 So.2d 1268, 1269 (Fla. 5th DCA 2004); Barta v. State, 678 So.2d 928 (Fla. 5th DCA 1996); Forget v. State, 675 So.2d 259 (Fla. 5th DCA 1996). We, therefore, vacate the judgment under review and remand for entry of a proper judgment specifying which conditions Mormon was found to have violated.

Order VACATED; case REMANDED.

TORPY and EVANDER, JJ., concur.


author: GRIFFIN, J.

text:
    Howard L. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3890.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2008.
    Howard L. Allen, East Palatka, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant seeks review of the trial court’s summary denial of Appellant’s rule 3.800(a) motion to correct illegal sentence, raising three claims for relief. We affirm.

Appellant’s first claim fails, as the trial court conclusively demonstrated, through records attached to the order, that Appellant was in actual possession of a firearm during the commission of the offenses. Appellant has essentially conceded this issue in his initial brief.

Appellant’s second and third claims raise scoresheet issues. As for these claims, the trial judge agreed that there had been scoresheet errors, but she also recognized that Appellant’s concurrent ten-year terms fell way below the guidelines minimum sentence he would have otherwise faced had a corrected scoresheet been utilized. Because the trial court “could have imposed” the same sentences, notwithstanding the scoresheet miscalculations, Appellant is not entitled to any relief. See Brooks v. State, 969 So.2d 238, 243 (Fla.2007).

AFFIRMED.

LAWSON and EVANDER, JJ„ concur.


text:
    James L. BUNCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-4363.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2008.
    James L. Bunch, Monticello, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Brigid E. Colllins, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

James Bunch appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. Mr. Bunch was sentenced as a habitual felony offender on two counts of sale of cocaine. He contends that his habitual offender sentences are illegal because the lower court relied upon prior predicate convictions that were .not sequential. See § 775.084(5), Fla. Stat. (2000); Bover v. State, 797 So.2d 1246, 1248-49 (Fla.2001).

The sentencing transcript reflects that both prior convictions used for habitualization occurred on September 8, 1998. At the sentencing, although the assistant state attorney referred to other prior convictions, none were actually admitted into evidence.

Because Mr. Bunch did not raise this issue or object at the original sentencing hearing, on remand, the State will have the opportunity to present record evidence that would satisfy the sequential sentencing requirements of section 775.084(5). See Bover, 797 So.2d at 1248^9.

REVERSED and REMANDED.

PLEUS, TORPY and COHEN, JJ., concur.

      . Mr. Bunch was also sentenced on two counts of possession of cocaine and possession of cocaine with intent to deliver.

      . The record does not reflect that the September 8, 1998 convictions occurred at separate sentencing proceedings.


text:
    Marcus L. COUNTS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-4215.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2008.
    Marcus L. Counts, Carrabelle, pro se.
    Bill McCollum, Attorney General, Tallahassee and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petitioner, Marcus L. Counts, seeks a belated appeal, stating that he requested an appeal immediately after sentencing but no appeal was ever filed. Florida Rule of Appellate Procedure 9.141(c)(3)(F) requires the petitioner to assert the specific facts that constitute a basis for entitlement to belated appeal. The instant petition for belated appeal does not contain an oath that the statements are true. Therefore, the petition is dismissed without prejudice for refiling with a proper oath. See Fuller v. State, 878 So.2d 1287 (Fla. 5th DCA 2004).

DISMISSED.

GRIFFIN, SAWAYA and ORFINGER, JJ., concur.


author: DAVIS, Judge.

text:
    Edwin A. VASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2924.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.
   DAVIS, Judge.

Edwin A. Vasquez appeals the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court found that while Vasquez’s rule 3.850 motion was properly sworn, the attached memorandum containing the supporting facts was not. Accordingly, the court dismissed Vasquez’s motion. See Miller v. State, 848 So.2d 401 (Fla. 2d DCA 2003). In this appeal, Vasquez asks this court to remand with instructions that the postcon-viction court specify a time limit for him to refile. However, because we conclude that Vasquez currently has nearly ten months to timely file such a motion, we affirm the dismissal and decline to require that a time limit be set.

Pursuant to rule 3.850(b), a motion to vacate, set aside, or correct sentence must be filed within two years after the judgment and sentence becomes final in a non-capital case. Because Vasquez’s judgment and sentence did not become final until this court’s mandate on his direct appeal issued on January 24, 2007, see McCuiston v. State, 507 So.2d 1185, 1186 (Fla. 2d DCA 1987), the time for Vasquez to file a facially sufficient, properly sworn rule 3.850 motion will not expire until two years from that date.

Having concluded that Vasquez’s time for filing a timely rule 3.850 has not expired and that he still has sufficient time to refile, we conclude that the trial court did not err in failing to specify a time limit for refiling. We affirm.

FULMER and WALLACE, JJ., concur.


author: SALCINES, Judge.

text:
    Suzanne BELL f/k/a Suzanne Hill, Appellant, v. Charles W. HILL, Appellee.
    No. 2D07-807.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.
    Jean Marie Henne, Winter Haven, for Appellant.
    Christine A. Trakas of Thornhill and Trakas, P.A., Winter Haven, for Appellee.
   SALCINES, Judge.

Suzanne Bell, the former wife of Charles W. Hill, appeals from a postdissolution order that modified the parties’ visitation agreement concerning their child. Although the postdissolution order contains several edicts, in this appeal Ms. Bell challenges only that portion of the postdissolution order that modified visitation. We reverse the postdissolution order to the extent that it modified visitation, and we remand for further proceedings.

During their marriage, the parties had one child who was born in December 1993. In 1995, when their child was a little over a year old, the parties’ marriage was dissolved. The final judgment of dissolution of marriage incorporated a marital settlement agreement in which the parties set forth a detailed visitation schedule. In May 2006, eleven years after the dissolution, Mr. Hill filed a supplemental petition for modification in which he sought, among other things, a change of custody of the parties’ minor child. A hearing on Mr. Hill’s petition for modification of custody was held on December 19, 2006. Ms. Bell’s attorney filed a motion for continuance on the morning of the hearing. The motion for a continuance was denied. Neither Ms. Bell nor her attorney appeared at the hearing.

Rather than modifying custody, the trial court modified visitation by awarding Mr. Hill visitation with the parties’ child every weekend. It is not entirely clear what standard the trial court applied in reaching its decision, and the record before this court suggests that the trial court perhaps applied an incorrect standard. Critically absent from the modification order is a finding that there had been a substantial change in circumstances subsequent to the entry of the operative visitation schedule and that a change in visitation was in the best interest of the child, and we cannot intuit those findings from this record. The trial court found that the prior visitation schedule was “no longer appropriate.” The trial court made several additional findings, but none of those findings specifically address a substantial change in circumstances or the best interest of the child. Indeed, some of those findings suggest that the modification of visitation might have been intended as a sanction against Ms. Bell for her recalcitrant actions. If that was the trial court’s intent, the record does not support such a sanction.

Accordingly, we reverse the portion of the postdissolution order that modified visitation and remand for further consideration. On remand, the trial court must reconsider the evidence under the correct legal standard, and its ruling should demonstrate that the proper standard was applied. The trial court is not foreclosed from taking additional evidence to determine the child’s best interest in this matter.

Reversed and remanded.

NORTHCUTT, C.J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


text:
    STATE of Florida, Appellant, v. Richard P. NAYLOR, Appellee.
    No. 2D06-4051.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.
    Aubrey O. Dicus, Jr., and Stephen J. Wein of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellee.
   VILLANTI, Judge.

The State appeals the downward departure sentence imposed on Richard P. Nay-lor. Because the trial court’s downward departure sentence was not supported by competent, substantial evidence, we reverse and remand for resentencing.

In 2003, the State filed a second amended information charging Naylor with nineteen felony counts, including arson, grand theft, forgery, conspiracy to racketeer, and racketeering. The charges arose from allegations that, from 1996 to 2000, Naylor took substantial sums of money from customers of his helicopter business, failed to deliver on business promises, and subsequently burned down the business. According to the information contained in the presentence investigation (PSI), the combined losses resulting from the charges against Naylor were in excess of three million dollars. On October 28, 2005, Nay-lor entered an open plea of no contest to all of the charges.

At a subsequent sentencing hearing, Naylor’s counsel requested a downward departure, arguing that Naylor wished to make restitution to the victims and that he was in the process of starting a new helicopter business venture to make such restitution. Counsel also argued that Naylor was sixty years old and had no prior criminal record. Four witnesses testified at the hearing: Naylor; his current business associate, Mr. Agoto; one victim, Mr. Agnes; and the detective who investigated the arson. Relevant to this analysis, Naylor testified that in the three years prior to the hearing, he had started making restitution to only one of his nineteen victims, Mr. Agnes. Interestingly, Mr. Agnes testified that he had settled his claims against Nay-lor for $335,000 and Naylor was paying him $5960 of that settlement monthly but that he wanted Naylor to “go to jail and serve a lengthy prison term,” even if that meant Mr. Agnes would not be repaid the money he had lost.

In addition to the witnesses’ testimony, the following evidence was on the record and was referenced at the hearing: (1) a notarized letter from a Richard Gilbert, who was not a victim in this case, stating that Naylor owed him money but was repaying that debt; (2) a letter, neither signed nor notarized, from another person, who also was not a victim in this case, stating that he was receiving money from Naylor; (3) a PSI report reflecting that nineteen victims had been contacted as part of the investigation, that most of the victims did not respond to the inquiry, and that of the victims who responded, two wanted prison time for Naylor, one wanted both jail time and restitution, and a fourth victim wanted restitution. The PSI report recommended that Naylor receive a long prison sentence followed by a long term of probation. At the sentencing hearing the State requested that Naylor be sentenced to the bottom of the guidelines for each of the nineteen counts, with the sentences running consecutively.

The trial court sentenced Naylor to only five years of imprisonment as to each count, all sentences to run concurrently, followed by ten years of probation with restitution as a condition of probation. The sentencing guidelines in this case established a minimum sentence of 60.6 months in prison for some counts (counts 2, 3, 4, 5,18, and 19), 97.5 months for other counts (counts 13, 14, 15, 16, and 17), and 132.9 months for other counts (counts 1, 6, 7, 8, 10, 11, and 12). Therefore, the trial court’s five-year sentence departed downward on counts 1, 6 through 8, and 10 through 17. The State argues, and we agree, that the evidence did not support a downward departure sentence because Naylor did not prove that the need for restitution outweighed the need for a prison sentence.

Initially, Naylor argues that the State failed to preserve its challenge to the downward departure sentence by not sufficiently objecting at the hearing. The record demonstrates otherwise. Upon pronouncing sentence, the trial court placed on the record its rationale for arriving at the specific sentence. At that point, the judge did not believe the split sentence imposed was a departure because he concluded his remarks by indicating that ‘Toe-cause of that [his rationale], I’m not going to override the sentencing guidelines.” He then imposed a downward departure sentence. The State immediately noted, “You have given him a downward departure [sentence].” Naylor’s counsel also agreed with this assessment and so informed the judge: “Your Honor ... you do need to state the ground for departure.... [YJou’re departing on the [statutory] restitution ground?” The trial court agreed: “Restitution. Right.” The State responded by specifically inquiring whether the trial court was finding that “the need for restitution outweighs the need for incarceration.” The trial court confirmed that it was. The State protested, arguing that there was no evidence that the need for restitution outweighed the need for incarceration. This dialogue was more than sufficient to put the trial court on notice of the State’s objection to the downward departure sentence. See, e.g., State v. Barnes, 753 So.2d 605, 607 (Fla. 2d DCA 2000) (rejecting waiver argument because “[t]he State does not have to advise the trial court specifically that the reason for the departure is invalid”); State v. Walker, 923 So.2d 1262, 1264-65 (Fla. 1st DCA 2006) (finding the statement, ‘Tour Honor, for the record, the State would object to the downward departure” sufficient to preserve the issue); State v. Paulk, 813 So.2d 152, 154 (Fla. 3d DCA 2002) (noting that an issue is preserved for appeal if counsel sufficiently articulated his concern with the court’s ruling so as to inform the trial court of the alleged error).

Turning to the substantive issue on appeal, the trial court may not impose a sentence below the lowest permissible sentence required by the criminal sentencing guidelines unless it articulates in writing a reason for a departure sentence and that reason is supported by competent, substantial evidence. See Fla. R.Crim. P. 3.701(d)(ll); § 921.0026(1)-(2), Fla. Stat. (1997-2000); § 921.0016(l)(c) & (4), Fla. Stat. (1997 & Supp.1996); Barnes, 753 So.2d at 606. The defendant bears the burden of presenting competent, substantial evidence supporting the reason for the downward departure sentence. State v. Jimenez-Porras, 974 So.2d 422 (Fla. 2d DCA 2007). If the defendant’s evidence establishes a valid basis for a downward departure sentence and the trial court imposes such a sentence, the trial court must file written reasons supporting the downward departure within seven days after the date of sentencing. § 921.00265(2); State v. Carlson, 911 So.2d 234, 236 (Fla. 2d DCA 2005); State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005). If the trial court does not file written reasons, a downward departure sentence may nevertheless be affirmed if the record reflects that the trial court made oral findings on the record at the sentencing hearing which support the sentence. § 921.00265(2); see also Pease v. State, 712 So.2d 374, 374 (Fla.1997); Carlson, 911 So.2d at 236. In the absence of either written or oral findings, however, a downward departure sentence is not proper.

In this case, the trial court did not file written reasons for Naylor’s departure sentence. Therefore, that sentence can be affirmed only if the trial court made oral findings at the hearing which are supported by competent, substantial evidence. The court stated that it was imposing a downward departure sentence based only on the need for restitution. When a downward departure sentence is imposed based on the need for restitution, some evidence of the victims’ needs must be presented to the trial court to support a downward departure sentence. See, e.g., Demoss v. State, 843 So.2d 309, 312-13 (Fla. 1st DCA 2003) (reversing downward departure sentence where no evidence of the victim’s needs was presented and the victim expressed a preference for incarceration). Here, absolutely no evidence was presented at the hearing regarding the victims’ needs. We note that Naylor pleaded nolo contendere to charges alleging that he had caused millions of dollars in losses to nineteen victims. At the time of the sentencing hearing, he had made efforts to repay only one of his victims. That victim — the only victim who testified at the sentencing hearing — expressed a desire to see Naylor receive a lengthy prison term, even if it meant that he would not receive restitution. Mr. Agnes’ testimony actually belied any suggestion that his need for restitution outweighed the need for prison time. Further, the PSI recommended a long prison sentence and noted that, given the amount of money involved, restitution would be unlikely. We conclude that the record did not contain competent, substantial evidence that the need for restitution outweighed the need for prison time in this case. In the absence of that evidence, Naylor failed to prove that he was entitled to a downward departure on this basis and his sentence must be reversed.

Having found that the evidence did not support the reason given by the trial court for the downward departure sentence, we vacate the downward departure sentence and remand for entry of a guidelines sentence. See, e.g., State v. Green, 890 So.2d 1283, 1287 (Fla. 2d DCA 2005).

Reversed and remanded for resentenc-ing.

ALTENBERND and LaROSE, JJ„ Concur.

      . We note that there are major discrepancies between the trial court's oral pronouncement of the sentence and the written sentence that is part of the record. For example, the trial court did not orally pronounce a sentence for count 1, but the record reflects a written sentence of ten years on that count. Similarly, the oral sentences for counts 6, 7, and 8 was fifteen years for each count, but the written sentences for those counts was ten years for each count. We note that there are discrepancies in the oral and written pronouncements for counts 1, 6 through 12, and 14 through 19. Regardless of the discrepancies, Naylor’s split sentence required him to serve only five years in prison for each of the nineteen counts, each sentence to run concurrently. However, our resolution of this case renders these discrepancies moot.