author: ROTHENBERG, Judge.

text:
    Felix Freddy MORALES, a/k/a Lamont Morales, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2454.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 2007.
    Felix Freddy Morales, a/k/a Lamont Morales, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GREEN, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

The defendant, Felix Freddy Morales, a/k/a Lamont Morales (“Morales”), appeals the trial court’s order denying his motion to correct his sentence. As we agree with the trial court, that granting a defendant credit for time served outside of the state of Florida on unrelated charges, when a warrant or detainer is issued by this state, is discretionary, not mandatory, we affirm.

While Morales was serving a sentence in New York on an unrelated charge, Miami-Dade County issued a warrant for Morales’ arrest and a hold was placed upon Morales to ensure his later transport to Miami-Dade County to answer the Miami-Dade County charges. Morales claims he is entitled to credit for time served in New York from the moment the Florida warrant was issued and verified in New York and a hold was placed on him. The trial court correctly ruled that it has discretion to grant Morales credit for the time he served in New York.

In Hopping v. State, 650 So.2d 1087, 1088 (Fla. 3d DCA 1995), this court held that “[w]hen a prisoner is incarcerated in another state on charges unrelated to the Florida charge, detainer, or warrant, that prisoner is not entitled to credit for time served in the other state.” See also Kronz v. State, 462 So.2d 450, 451 (Fla.1985) (holding that the jail credit statute applies to Florida jails only, not to jails in other states, but courts have discretion to award jail credit when the defendant is incarcerated in another state based solely on Florida charges); Tribble v. State, 958 So.2d 543, 543-44 (Fla. 4th DCA 2007) (affirming the trial court’s denial of the defendant’s motion for additional jail credit for time served in jail in another state).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-662.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 2007.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Garrett v. Morris Kirschman & Co., 336 So.2d 566, 569 (Fla.1976) (stating that a writing used to jog a witness’s memory may be admissible on some independent ground); T.B.S. v. State, 935 So.2d 98, 99 (Fla. 2d DCA 2006) (stating the fact-finder can use life experience to find that the statutory damage threshold has been met for self-evident repairs).


text:
    Eduardo LOPEZ, Appellant, v. Minita LOPEZ, Appellee.
    No. 3D06-3067.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.

      Leonardo G. Renaud, Miami Lakes, for appellant.
    Kenneth M. Kaplan, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The former husband, Eduardo Lopez, appeals from a final judgment modifying his alimony obligation to his former wife, Minita Lopez, which was entered by the trial court upon remand from this Court in Lopez v. Lopez, 920 So.2d 1165 (Fla. 3d DCA 2006). We reverse and remand for entry of an order consistent with this opinion.

In Lopez, this Court reviewed an order terminating the former husband’s alimony obligation to the former wife. This Court summarized the pertinent facts leading to the entry of that order as follows:

The parties were divorced in December of 1993. As part of the Final Judgment of Dissolution of Marriage, former wife was awarded permanent alimony in the amount of $2,000.00 per month. The trial court reserved jurisdiction pursuant to Pimm v. Pimm, 601 So.2d 534 (Fla.1992), to consider former husband’s permanent alimony obligation upon his reasonable retirement. At the time of the dissolution, former husband was a bank executive with an annual salary of $92,000.00. Former wife was 48 years old and unemployed.
On June 18, 2004, former husband filed a Supplemental Motion for Modification on the ground that his employment was involuntarily terminated effective May of 2004, that he retired as a result, and that his retirement income was $1,588.00 per month. Former husband’s financial affidavit established that he is living in a deficit, which requires him to draw from his retirement savings each month.
Former husband’s Motion was set for final hearing on ■ several occasions but was continued when former wife did not comply with the financial disclosure requirements. On December 3, 2004, former husband filed a Motion for Default. The trial court granted the Motion for Default and as a result, without taking any evidence except for Husband’s financial affidavit, the court granted Husband’s Supplemental Motion to Modify Alimony Obligation. The court cited former wife’s failure and refusal to comply with discovery to support the default, found that former husband does not have the present ability to make alimony payments, and entered a Final Judgment for Termination of Alimony Payments.

Lopez, 920 So.2d at 1166-67.

In appealing the order terminating the former husband’s alimony obligation in the former appeal, the former wife raised two arguments. First, she claimed that although the trial court entered a default judgment against her for failing to comply with discovery requests, it was error to enter the default judgment “without conducting an evidentiary hearing to inquire into former husband’s assets and the reasonableness of former husband’s retirement in light of his age, ability to remain employed, and former wife’s needs.” Id. at 1167. Second, she claimed that “the court erroneously terminated former husband’s alimony obligation where former husband only sought a reduction of alimony.” Id.

On appeal this Court concluded that the trial court did not abuse its discretion in entering the default based on the former wife’s failure to comply with discovery, id. at 1167 n. 1, but agreed with the former wife that the trial court erred in failing to hold an evidentiary hearing, and stated as follows:

Although former wife defaulted, and should be precluded from presenting any evidence, husband must still meet his burden of establishing a substantial change in circumstances, and wife is entitled to cross examine and challenge that evidence. Accordingly, we find that the trial court abused its discretion in failing to hold an evidentiary hearing on husband’s Motion for Modification.

Id. at 1167. This Court additionally agreed with the former wife that the former husband’s alimony obligation could not be terminated as his pleadings requested a modification, not a termination. Id. at 1168. Based on its rulings, this Court reversed and remanded for an evi-dentiary hearing to determine the proper modification, if any, noting that while the former wife could not present evidence at the hearing, she could “challenge former husband’s basis, and evidence, for modification and may cross-examine former husband.” Id. at 1168 n. 2.

The order currently under review is the Final Judgment of Modification entered by the trial court after it conducted the evi-dentiary hearing ordered by this Court in Lopez. Consistent with this Court’s directive in Lopez, only the former husband testified. In addition to the facts set forth in Lopez, the former husband testified that in 1999 or 2000, he was terminated from his employment when the bank he was working for at the time closed. After approximately two years of actively seeking employment, he was hired by another bank for approximately $38,000 per year. Based on the reduction of his income, he sought to reduce his alimony obligation to his former wife. In 2002, the modification was granted, and his alimony obligation to his former wife was reduced from $2,000 to $1,250 per month.

After working for this bank for approximately three years, in May 2004, the former husband was terminated when that bank also closed. The former husband, who was sixty-six years old when he was terminated from this bank, was not able to obtain employment due, in part, to his lack of familiarity with the technology that banks were currently using.

At the time of the hearing, the former husband owned a modest condominium and vehicle, and had approximately $66,000 in savings, and his monthly income was limited to $1,719 in Social Security and approximately $200 to $300 in interest. He further explained that he had been slowly depleting his savings because his monthly expenses exceeded his monthly income.

On cross-examination, the former wife’s attorney questioned the former husband as to a real estate investment. The former husband explained that he purchased an apartment building after losing his position at the first bank, intending that the rental of the units in the building would provide him with a source of monthly income. He purchased and repaired the apartment building by depleting his retirement and bank accounts, and by obtaining a substantial mortgage and private loans. The former husband explained that he “know[s] nothing about real estate,” and that he “did a lousy job with the buildings.” He sold the apartment building two to three years later after obtaining employment at the second bank. With the funds he netted from the sale of the building, he paid the tax liability due from the sale, and he purchased the condominium he currently lives in for $110,000. The funds, he currently has in his savings account are the funds remaining from the sale of this building.

Following the former husband’s testimony and arguments by the parties’ counsels, the trial court recognized that pursuant to Pimm, it was required to consider the financial needs of the receiving spouse, here the former wife, and the impact that termination or modification of support would have on that spouse. Pimm, 601 So.2d at 537. The trial court, however, noted that because the former wife failed to provide financial information and to otherwise comply with her discovery obligations in Lopez, this Court precluded the former wife from presenting evidence at the evidentiary hearing, and the former wife’s current financial situation was unknown. In order to resolve this dilemma, the trial court stated that it would examine the final judgment of dissolution of marriage entered in 1993 and the general master’s report from the 2002 modification proceeding.

In assessing the factors set forth in Pimm, the trial court found that the former husband’s retirement age was reasonable; that his retirement was involuntary; that the former husband’s skills have become “significantly obsolete”; and that the former husband’s “retirement was not motivated by any desire to eliminate the [former] wife’s opportunity to receive alimony.”

As to the former wife’s financial situation, the trial court noted that the final judgment of dissolution of marriage reflects that the former wife was awarded half of the marital home, which had approximately $280,000 in equity in 1993, and half of the husband’s pension, which was valued at $145,000 in 1993. The trial court also noted that the general master’s report from the 2002 modification proceedings provided no findings as to the wife’s assets, but only stated that the wife testified that she had no income. As to the former husband’s current financial situation, the trial court found that his monthly expenses exceed his monthly income by $140; he owns his condominium; and he has “cash assets, but he should not be required to disperse them completely.”

Finding that the former husband established a substantial involuntary change of circumstances, the trial court entered a Final Judgment of Modification, reducing the former husband’s monthly alimony obligation to the former wife from $1,250 to $500. The former husband appeals that order.

The former wife did not file a cross-appeal challenging the trial court’s conclusion that the former husband is entitled to a downward modification of his support obligation to his former wife. Therefore, the only issue under review is whether the trial court abused its discretion by not further reducing the former husband’s support obligation. Based on the unique circumstances presented here, we conclude that the trial court abused its discretion.

Here, the unrebutted evidence presented at the hearing demonstrates that the former husband involuntarily retired. Moreover, although he lives a modest lifestyle, his monthly expenses exceed his monthly income, and therefore, he must draw from his savings each month.

With regard to the former wife’s financial situation, due to her failure and continued refusal to comply with discovery, she was precluded from presenting any evidence at the hearing. As a result of the former wife’s actions, the trial court was presented with a very difficult situation because it had no evidence whatsoever regarding the former wife’s current finances. In an attempt to resolve this dilemma, the trial court reviewed the 1993 final judgment of dissolution of marriage and the general master’s report from the 2002 modification proceeding. Although these documents shed light on the assets awarded to the former wife in 1993, these documents do not reflect the former wife’s current financial situation or whether the wife still possesses these assets. One would think that if the former wife was in need of financial support, she would have submitted the required discovery. The former wife’s refusal to submit the required discovery, however, should not work to her benefit, and the former husband should not be penalized by her failure to provide the necessary financial information.

Additionally, although the former husband was required to pay the former wife $1,000 a month for three years for rehabilitative alimony, there is nothing in the record as to the former wife’s attempt(s) to obtain gainful employment to offset her expenses. The record reflects that she was forty-eight years old at the time of dissolution. Under these circumstances, requiring the former husband to draw from his savings to pay the former wife $500 per month in alimony was an abuse of discretion. We, therefore, reverse the order under review with directions to enter an order reducing the former husband’s support obligation to one dollar per month. See Zeballos v. Zeballos, 951 So.2d 972, 975 (Fla. 4th DCA 2007) (reducing former husband’s alimony obligation to one dollar per month, thereby allowing the trial court “to retain jurisdiction to consider modification should the parties’ circumstances substantially change in the future”).

Reversed and remanded for entry of an order consistent with this opinion.

      . The record on appeal indicates that the former wife also received monthly rehabilitative alimony in the amount of $1,000 for three years.

      . In Pimm, the Florida Supreme Court set forth several factors that a court must consider in determining whether a voluntary retirement is reasonable. Specifically, the Court stated:
      In determining whether a voluntary retirement is reasonable, the court must consider the payor’s age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire. The age of sixty-five years has become the traditional and presumptive age of retirement for American workers.... Based upon this widespread acceptance of sixty-five as the normal retirement age, we find that one would have a significant burden to show that a voluntary retirement before the age of sixty-five is reasonable. Even at the age of sixty-five or later, a payor spouse should not-be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty. Thus, the court should consider the needs of the receiving spouse and the impact a termination or reduction of alimony would have on him or her. In assessing those needs, the court should consider any assets which the receiving spouse has accumulated or received since the final judgment as well as any income generated by those assets.

        Id. In the instant case, the trial court found that the former husband's retirement was involuntary. Thus, it is questionable whether Pimm is applicable. See Wiedman v. Wiedman, 610 So.2d 681, 682 (Fla. 5th DCA 1992) ("[W]e conclude that the ruling in Pimm which considered the issue of whether 'voluntary retirement’ is a reasonable basis for modifying alimony, is not applicable to this case because here, [former husband] was subject to an ‘involuntary retirement[.']”) Nonetheless, even when the paying spouse’s retirement is involuntary, it is appropriate for the trial court to consider the receiving spouse's financial needs when ruling on a petition for a downward modification, of alimony. Further, a review of the transcript of the eviden-tiary hearing reflects that the trial court found that the former husband's retirement was involuntary based on the factors set forth in Pimm.


text:
    Afelix DESIR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2122.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Afelix Desir, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Poore v. State, 531 So.2d 161 (Fla.1988).


author: SUAREZ, J.

text:
    Octavio Jose ZUBIZARRETA, Petitioner, v. Emily Ann ZUBIZARRETA, Respondent.
    No. 3D07-2389.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Koltun & Lazar and Scott A. Lazar, Miami, for petitioner.
    Paul H. Bass, Coral Gables; Andrew H. Drucker, Miami, for respondent.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   SUAREZ, J.

We dismiss the Petition for Writ of Cer-tiorari without prejudice to raise the issue once a final judgment has been entered. The petitioner has an adequate remedy to address this issue once a final judgment is entered.

Petition dismissed without prejudice.


text:
    Henry CUESTA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1507.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Eric Cohen, Miami, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The order under review denying without an evidentiary hearing post-conviction relief from convictions for first degree murder and other offenses, asserted on the ground of ineffectiveness of trial counsel is affirmed on the basis of the extensive order entered below. See Carratelli v. State, 961 So.2d 312, 323 (Fla.2007); Teffeteller v. Dugger, 734 So.2d 1009, 1023 (Fla.1999).

Affirmed.


text:
    Bentsy MURAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1863.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Bentsy Muram, in proper person.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GREEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

We affirm the denial of Defendant’s motion for postconviction relief. The issue of whether or not the defendant is entitled to DNA testing has previously been addressed by this Court. See Muram, v. State, 950 So.2d 421 (Fla. 3d DCA 2007). We also affirm the trial court’s order denying the defendant’s request for a free trial transcript. See Roesch v. State, 633 So.2d 1 (Fla.1993) (indigent inmates are not entitled to records free-of-charge); Yanke v. State, 588 So.2d 4 (Fla. 2d DCA 1991) (no right to free transcript for preparation of postconviction motion).

Affirmed.


author: PER CURIAM. SHEPHERD, J.,

text:
    J.O., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D07-595.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    ■ Kevin Coyle Colbert, Miami, for appellant.
    Karla Perkins, Miami; Hillary S. Kamb-our, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

The father, J.O., appeals an order adjudicating his minor children, C.O. and J.O., dependent. Because we conclude that the children’s physical and. mental health were at substantial risk of imminent harm, we affirm the trial court’s order.

In August of 2005, the Department of Children and Family Services (“Department”) received an abuse report indicating that a step-sibling of J.O. and C.O. shot another step-sibling at the home of their biological mother. The father, J.O., lived at a different residence. He was given temporary custody of his biological children, J.O. and C.O., at the shelter hearing.

On or about September 14, 2005, the children’s maternal grandmother advised the court that the father was dealing and using drugs in the home where the children were residing. On September 15, 2005, a modification of placement petition was filed, stating that the court ordered removal of the children on September 14 when J.O. tested positive for cocaine and marijuana. The children were placed in temporary custody with their maternal grandmother. On September 26, 2005, the Department filed a dependency petition as to the father, which was later dismissed. No order was entered.

In a disposition hearing held on December 6, 2005, the trial court refused to return the children to their father because of his alleged drug use. The Department then filed a second petition for dependency against the father alleging the children were at risk of harm due to his alleged use of drugs, sale of drugs, and criminal record. On April 11, 2006, an adjudicatory trial was held as to the father. The court found both children dependent, but did not enter a final order. After several informal attempts to secure an adjudicatory order, the father filed a motion to compel entry of an adjudicatory order. On January 11, 2007, an adjudicatory order was rendered declaring the children dependent as to the father, which the father now appeals.

In a dependency proceeding, the allegations contained in the dependency petition must be established by a preponderance of the evidence. J.C. v. Fla. Dep’t of Children & Family Servs., 937 So.2d 184, 186 (Fla. 3d DCA 2006). Additionally, a determination of dependency is a mixed question of law and fact and will be upheld on appeal if the trial court applied the correct law and its ruling is supported by competent substantial evidence. Id. See also A.B. v. Fla. Dep’t of Children & Family Servs., 901 So.2d 324, 326 (Fla. 3d DCA 2005).

In the case before us, the trial court applied the correct law using the statutory definition of a dependent child as defined in section 39.01(14), Florida Statutes (2004), which provides, in pertinent part:

“Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
(a) To have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians;
(f) To be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.

In addition, the trial court found that the Department established by a preponderance of the evidence that the children lived in an environment where: 1) their father conducted the sale of drugs from inside of their home; and 2) their father was known throughout the community as “Mr. Black,” a drug dealer. We thus conclude that the trial court applied the correct law concerning the childrens’ dependency, and its ruling was supported by competent and substantial evidence.

Here, the testimony and evidence in the record demonstrates that the father conducted the sale of drugs on the property where the children lived and while they were present. We find our decision in J.C. v. Florida Department of Children & Family Services, 937 So.2d 184 (Fla. 3d DCA 2006), to be directly on point. In J.C., we held:

While there is no evidence that the children were present or even aware that their father was selling drugs from the structure within the curtilage and directly behind their home, and no evidence of violence, based upon the ages of the children (ten and a half, and seven years of age), the proximity of the drugs, the number of transactions, the fact that the transactions occurred throughout the day and evening,- and the presence of an unsecured firearm within the home, we conclude that there was sufficient evidence to support the trial court’s finding that the children’s physical and mental health were at substantial risk of imminent harm.

Id. at 187. Consequently, we conclude that there was sufficient evidence here to support the trial court’s finding that the children’s physical and mental health were at substantial risk of imminent harm. Accordingly, we affirm the trial court’s order adjudicating C.O. and J.O. dependent as to their father.

Affirmed.

GERSTEN, C.J., and RAMIREZ, J., concur.

SHEPHERD, J.,

concurring dubitante.

Adherence to the doctrine of stare deci-sis requires me to join in the majority affirmance of the trial court’s decision in this case. I write only to note how far adrift we continue to travel aboard the vessel, J.C. v. Fla. Dep’t of Children & Family Servs., 937 So.2d 184 (Fla. 3d DCA 2006). In J.C., we announced the per se rule that anytime a parent sells drugs in the vicinity of his offspring, the right to remove the offspring attaches a fortiori. See id. Applying that rule, we found J.C.’s two children, D.C. and L.C., dependent as to him — a non-repentant, jailed, former drug-dealing father. Id. Today, we affirm a trial court decision keeping two other children, J.O. and C.O., from a repentant father about whom the undisputed testimony offered at trial was that he had turned his life around. This portion of the father’s story is not chronicled in the majority opinion. So, first let me tell — as a legendary syndicated radio columnist might say — “the rest of the story.”

The. majority affirms the dependency adjudication in this case on the ground that the children “were” — in the past — “at substantial risk of imminent harm.” See supra p. 397. The evidentiary support for this conclusion, also found by the trial court, was the maternal grandmother’s testimony regarding J.O.’s reputation in the community, and her testimony that prior to September 14, 2005, she observed “people coming in and out of the house” where J.O. lived with his children. The children were outside playing basketball or engaging in other activities at the time of her observations. The grandmother candidly admitted she never saw J.O. engage in a drug transaction in the home. J.O.’s mother, whose house J.O. and the children occupied, is, or was, a drug user. Although certainly not a model father, J.O. had substantially parented his son, J.O., for much of the seven years of his young life before the unfortunate shooting of his step-sibling at the children’s mother’s house, which brings us here. He also has spent time with his daughter. As the grandmother testified, and the trial court acknowledged, J.O. “was” and “had the potential to be a good father.”

What the majority fails to report is the undisputed testimony of J.O.’s sister, the only other witness who testified at the final hearing, that shortly after J.O.’s children were removed from his custody on September 14, 2005, J.O. left that home, moved to his sister’s house, obtained a proper job, paid child support for his children for the first time, and for a period of at least three months before the final hearing on April 11, 2006, did not use or deal drugs. The trial court acknowledged this turnaround: “Now do I know if he is drug dealing today? No.” Yet, the trial court continued:

Do I think he was drug dealing when the children lived with him? Yes, I do. I do. In fact, quite frankly, I have no doubt about it, and I find by a preponderance of the evidence that these children are at — were at risk at the time, and there is prospective risk now. I am going to adjudicate these children dependent as to him.

(emphasis added).

The Department too acknowledges the lack of any evidence of illegal activity by J.O. after September 14, 2005. The Department nevertheless argues that J.O.’s contention that the children therefore cannot be declared dependent as to him under Section 39.01(14)(f) of the Florida Statutes (2004), requiring dependent children “to be at substantial risk of imminent abuse, abandonment, or neglect” to justify an adjudication, “is fallacious based upon his ability to move from his sister’s home, and create another drug dealing environment to p[l]ace his children! ]” (emphasis added). That is, of course, possible — but it is just as possible that J.O. has irrevocably decided, for his own reasons, to turn his life to the better for the benefit of his children. I do not find the Department’s asserted “possibility” sufficient to support an adjudication under this state’s dependency laws.

Dependency adjudications in this state are a matter of statutory law. Chapter 39 of the Florida Statutes defines a “dependent” child as one who is found by the court to have been abandoned, abused or neglected by his or her parents or one who is “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents ....”§ 39.01(14)(a), (f), Fla. Stat. (2004). As recently stated by one of our sister courts, “[i]n order to support an adjudication of dependency the parent’s harmful behavior must be a present threat to the child.” B.C. v. Dep’t of Children & Families, 846 So.2d 1273, 1274 (Fla. 4th DCA 2003) (emphasis added). Therefore, “before we can affirm [a] trial court’s adjudication of dependency, we must either find: competent, substantial evidence that the child was abandoned; competent, substantial evidence that the child was abused; competent, substantial evidence that the child was neglected; or the risk of abandonment, abuse or neglect is imminent.” J.B.M. v. Dep’t of Children & Families, 870 So.2d 946, 949 (Fla. 1st DCA 2004). The adjudication in this case is not sustainable on the basis of actual abuse, abandonment, or neglect within the meaning of Section 39.01(14)(a). If it is sustainable at all, the adjudication must rest upon the existence of a present or “imminent risk” to the children within the meaning of Section 39.01(14)(f) of Florida’s dependency statute.

It is also clear in the absence of actual abuse, abandonment, or neglect by a parent, “the mere possibility of future abuse, neglect, or abandonment will not support a finding of dependency.” R.S. v. Dep’t of Children & Families, 881 So.2d 1130, 1135 (Fla. 4th DCA 2004). This legal truth is derivable from the language of the relevant sections of Chapter 39. Dependency adjudications based upon actual abuse, abandonment, or neglect by a parent or legal custodian are governed by Section 39.01(14)(a). A dependency adjudication lies under this section of the Florida statutes whenever a child is found “[t]o have been abused, abandoned, or neglected _” § 39.01(14)(a), Fla. Stat. (emphasis added). In these circumstances, the Department need not inquire into or offer proof of present household circumstances. The statutory misfeasance is alone sufficient. See id.

By contrast, Section 39.01(14)(f) allows an adjudication of dependency where a child is found “[t]o be at substantial risk of imminent abuse, abandonment, or neglect _” § 39.01(14)(f), Fla. Stat. (emphasis added). This language directs the necessity of a continuing risk — not just a risk that existed sometime in the past, but a risk that ⅛ alive and merits judicial interference in the parent-child relationship to protect the child’s welfare. Therefore, in an imminency case, such as we have here, the issue is not whether a resumption of prior risky behavior is possible, but whether “future behavior will adversely affect the child and can be clearly and certainly predicted.” In re P.S. v. Dep’t of Children & Family Servs., 825 So.2d 530, 531 (Fla. 2d DCA 2002) (emphasis added); J.C. v. Dep’t of Children & Families, 773 So.2d 1220, 1222 (Fla. 4th DCA 2000) (holding that a possibility of future harm does “not rise to the level of injury ‘likely to cause the child’s physical, mental, or emotional health [to] be significantly impaired[ ]’ ”) (emphasis added); Palmer v. Dep’t of Health & Rehab. Servs., 547 So.2d 981, 984 (Fla. 5th DCA 1989); see also Nicholson v. Scoppetta, 3 N.Y.3d 357, 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 (2004) (“Imminent danger ... must be near or impending, not merely possible.”). The Department does not argue the existence of any “impending” or probable, or present danger to these children on the record presented. The trial court adjudicates and we affirm on the basis of past conduct. The natural workings of J.C., 937 So.2d at 184, compel this result, leaving me checkmated by precedent. I nevertheless pause to record my continued reservation that proof of past conduct, without more, is sufficient to support an imminency adjudication.

      . See generally Paul Harvey, Paul Harvey’s the Rest of the Story (1978). Harvey, a syndicated radio personality who began his career in 1933, during one phase of his career hosted a program called “The Rest of the Story" in which he delved into forgotten or little-known facts behind stories.

      . As the majority states, the childrens’ father and mother lived apart. The shooting occurred at the childrens’ mother’s home. Although the record is not clear, there is evidence that J.O. and C.O. may well have just been visiting their mother, rather than living there, at the time of the shooting.

      . The sister testified she lives in Section 8 housing and does not tolerate drugs in her home. In the late 1980’s, she took a sibling from the court system, raised her, and had her in her second year of college at the time of the final hearing. She also had a daughter of her own just heading to college. In response to a question about what she would do if J.O. were to use or sell drugs while staying in her home, she said she would "[p]ut him out.”

      . The childrens’ mother has been jailed for felony child abuse as a result of the sibling shooting.


author: WELLS, Judge.

text:
    Enrique PADRON, Appellant, v. Alina T. ALONSO, In re: the Estate of Maria C. Alonso, Appellee.
    No. 3D07-26.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.

      Lazaro J. Lopez; Virginia Best, for appellant.
    M. Emelina Mejer-Kondla, for appellee.
    Before COPE and WELLS, JJ., and FLETCHER, Senior Judge.
   WELLS, Judge.

Enrique Padrón appeals dismissal of his probate revocation action for lack of prosecution. We reverse.

Florida Rule of Civil Procedure 1.420(e), as amended in 2005, addressing dismissals for failure to prosecute, governs this case. That rule provides:

Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e).

As the committee notes to this amendment explain, this subdivision “has been amended to provide that an action may not be dismissed for lack of prosecution without prior notice to the claimant and adequate opportunity for the claimant to recommence prosecution of the action to avert dismissal.” Fla. R. Civ. P. 1.420(e), committee notes (2005 amend.); see Edwards v. City of St. Petersburg, 961 So.2d 1048, 1049 (Fla. 2d DCA 2007) (confirming that the amended rule provides a sixty-day period in which a party may act to avoid a dismissal for failure to prosecute).

In Wilson v. Salamon, 923 So.2d 363 (Fla.2005), the Florida Supreme Court recognized a “bright line test” that precludes dismissal where “review of the face of the record reveals activity by ‘filings of pleadings, order of court, or otherwise.’ ” Id. at 368 (citing Metro. Dade County v. Hall, 784 So.2d 1087, 1090 (Fla.2001)); see Norman v. Darville, 964 So.2d 864, 865 (Fla. 2d DCA 2007) (observing “the court [in Wilson ] adopted a bright-line test that involves a review of the face of the record for ‘any activity’ in the preceding time period”); see also London v. Baxter Healthcare Corp., 965 So.2d 307 (Fla. 3d DCA 2007) (concluding that appellant’s filing met “the Wilson bright line test”); Miami-Dade County v. Walker, 948 So.2d 68, 70 (Fla. 3d DCA 2007) (observing that “based upon Wilson, that there was record activity precluding dismissal”); Diamond Drywall Sys., Inc. v. Mashan Contractors, Inc., 943 So.2d 267, 269 (Fla. 3d DCA 2006) (concluding that “Wilson has uniformly been interpreted to mean that any document appearing in the record within one year prior to the filing of a motion to dismiss precludes the entry of dismissal for failure to prosecute” and construing rule after Wilson but before 2005 amendment). Because the record in this case reveals at least one filing within sixty days of the notice of intent to dismiss for lack of prosecution, Padron’s action should not have been dismissed.

Accordingly, the order of dismissal is reversed and this case remanded for reinstatement.

      . See In re Amendments to the Fla. Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176, 176-77 (Fla.2005) (setting January 1, 2006, as effective date for amendments).


text:
    Kenneth B. BANKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-847.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Kenneth B. Banks, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ and SUAREZ, JJ.
   PER CURIAM.

We dismiss this appeal, as orders denying motions to mitigate brought pursuant to Florida Rule of Criminal Procedure 3.800(c) are not appealable. See Jackson v. State, 936 So.2d 775 (Fla. 5th DCA 2006).

Dismissed.


text:
    FLORIDA POWER & LIGHT COMPANY, Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, et. al., Appellees.
    No. 3D07-840.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Berger Singerman and Gabriel E. Nieto and Daniel H. Thompson, Tallahassee; John T. Butler, for appellant.
    Holland & Knight and Lawrence N. Curtin, Tallahassee,; Thomas M. Beason and Jack Chisolm and Rebecca Robinette, for appellees.
    Before GREEN, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Appellant, Florida Power and Light Company, seeks review of a final order of the Division of Administrative Hearings determining that the Department of Environmental Protection’s (“DEP”) proposed rule 62-296.470 is a valid exercise of delegated legislative authority.

We find that the Division of Administrative Hearings was correct in holding that the DEP’s proposed rule was a valid exercise of delegated legislative authority pursuant to sections 120.52 and 403.061, Florida Statutes (2006).

We affirm on all other issues on appeal.

Affirmed.


text:
    B.S., Appellant, v. DEPARTMENT OF CHILDREN & FAMILY SERVICES, et al., Appellees.
    No. 3D07-346.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Kevin Coyle Colbert, Miami, for appellant.
    Karla Perkins, Assistant District Legal Counsel, for appellee, Department of Children and Family Services, and Hillary S. Kambour, for appellee, Guardian Ad Litem Program.
    Before GERSTEN, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565 (Fla.1991); Dep’t of Children & Families v. B.B., 824 So.2d 1000 (Fla. 5th DCA 2002).


text:
    SOUTH AMERICAN TEXTILES MANUFACTURING GROUP, INC., Appellant, v. Steven MIRON and Steven Miron, as the Personal Representative of the Estate of Julie S. Miron, Appellees.
    No. 3D07-1227.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Smoler, Lerman, Bente & Whitebook and Carlos D. Lerman, Hollywood, for appellant.
    John L. Korthals, Pompano Beach, for appellees.
    Before RAMIREZ and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We find no breach of that portion of the Settlement Agreement incorporating the lease provision requiring appellee to repair and maintain the roof in “good order and condition.” The repair provision did not mandate replacement of the roof and is independent from, and not in conflict with, the “as is” clause. As such, the specific provision relating to repair of the roof does not control the general “as is” clause. We affirm the trial court’s order denying appellant’s motion to set aside the Settlement Agreement.

Affirmed.


text:
    Antwan OFFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2292.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2007.
    Antwan Offord, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Galindez v. State, 955 So.2d 517 (Fla.2007); Rouse v. State, 965 So.2d 201 (Fla. 5th DCA 2007).


author: THOMPSON, J.

text:
    BRADENTON GROUP, INC., et al., Appellants/Cross-Appellees, v. STATE of Florida, Appellees/Cross-Appellants.
    Nos. 5D05-3338 to 5D05-3341.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2007.

      Thomas F. Egan of Thomas F. Egan, P.A., Orlando, for Appellant/Cross-Appel-lee, Philip Furtney.
    Steven G. Mason of Steven G. Mason, P.A., Orlando, for Appellants/Cross-Appel-lees, Bradenton Group, Inc., Eight Hundred, Inc., and Pondella Hall For Hire, Inc.
    Bill McCollum, Attorney General, and J. Andrew Atkinson and Erik M. Figlio, Deputy Solicitors General, Tallahassee, for Ap-pellees/Cross-Appellants.
   THOMPSON, J.

Pondella Hall for Hire, Inc. (“Pondella”), Eight Hundred, Inc. (“Eight Hundred”), Bradenton Group, Inc. (“Bradenton”), and Philip Furtney (“Furtney”) raise 13 issues on appeal arising from an amended final judgment that brought to a close a civil RICO forfeiture action initiated in November 1995. This is the case that resulted in our decision in Bradenton Group, Inc. v. Department of Legal Affairs, 701 So.2d 1170 (Fla. 5th DCA 1997) (“Bradenton I ”), and the Florida Supreme Court’s decision in Department of Legal Affairs v. Braden-ton Group, Inc., 727 So.2d 199 (Fla.1998) (“Bradenton II”). Though we are surprised to see this case again, we reverse the trial court below. In light of our holding, the State’s cross-appeal is moot.

Background

In its November 1995 amended complaint, the State sought forfeiture of various real property and proceeds resulting from the defendants’ bingo operations, which violated various provisions of section 849.0931, Florida Statutes (1991) (the “Bingo Statute”). It alleged the “Pondella Enterprise” began around 1 January 1991 and continued through 24 October 1995. According to the State, the predicate acts under RICO — bingo—constituted a pattern of racketeering activity under section 895.02(3), Florida Statutes (1991), and were illegal lotteries giving rise to RICO liability.

The court entered a temporary injunction prohibiting the defendants from conducting bingo games, but did not require the State to post a bond. Later, the court granted the defendants’ motion to require a $1.4 million bond, which ultimately led to the appeal decided by this court’s decision in Bradenton I, which the supreme court approved in part and quashed in part in Bradenton II. The Florida Supreme Court held that a bingo game conducted by an organization not authorized under section 849.0931, or conducted by an authorized organization in violation of various provisions of section 849.0931, did not constitute a “lottery” under section 849.09 and was not racketeering subject to RICO liability. Bradenton II, 727 So.2d at 199. The supreme court explicitly disagreed with the State’s argument that the defendants were unauthorized organizations whose violations of the Bingo Statute constituted illegal lotteries subject to punishment and forfeiture under the lottery and RICO statutes. Id. at 201. The court noted that the lottery statute expressly stated it did not apply to bingo. Id. at 202 (citing section 849.09(3), Fla. Stat. (1991)). Furthermore, the RICO statute listed the provisions of the gambling chapter that it punished, which did not include the Bingo Statute. Id. (citing section 895.02(l)(a)(32), Fla. Stat. (1991)). The Florida Supreme Court closed its discussion of the relationship between the Bingo Statute and the RICO statutes, as follows:

Without a clearer signal from the legislature, we are unwilling to create such a distinction and transform routine bingo offenses into lottery and RICO violations. Accordingly, we answer the certified question in the negative and hold that under the present statutory scheme violations of the bingo statute are not punishable under the lottery or RICO statutes.

Id. (emphasis added).

However, the supreme court approved this court’s decision to require a bond, stating:

[T]he very broad injunction the state requested — and received — will severely damage the defendants if its entry was improper.... As the state thrives under the broad grant of authority to the circuit court in subsection (5), so must it suffer under it. .

Id. (quoting Bradenton I, 701 So.2d at 1180) (footnote omitted). When the supreme court denied the State’s motion for rehearing, it granted the defendants’ motion for award of attorney’s fees pursuant to section 60.07, Florida Statutes (1995).

The case was thereafter remanded to the trial court. In response to Bradenton II, the defendants filed motions to dismiss and for summary judgment. The State responded by filing a second amended complaint in July 1999. That complaint changed the dates of the predicate acts, alleged additional predicate acts, and added additional defendants to various charged predicate acts. In addition to alleging additional predicate acts, the “facts common to all counts” portion of the complaint changed the enterprise’s start date to 1 June 1990. As to its allegations that members of the enterprise had “conducted bingo games,” the State now contended that the members “conducted lotteries and gambling games.” These “lotteries and gambling games” allegedly violated 18 U.S.C. § 1955, which prohibited illegal gambling businesses. Again, the State sought injunctions and forfeiture of property and proceeds under the RICO statute.

The State argued that nothing in Bra-denton II overturned cases holding that illegal bingo operations could be deemed “keeping a gambling house,” violating section 849.01. Furthermore, it claimed lottery violations other than bingo occurred. The court denied summary judgment in August 2003, accepting the State’s argument that section 895.02(l)(b) defined racketeering activity as any conduct defined by 18 U.S.C. § 1961(1) as racketeering activity — and § 1961(1) included any act under 18 U.S.C. § 1955, which prohibited an illegal gambling business.

In September 2003, the defendants requested that the court take judicial notice of Lamar v. Pondella Hall for Hire, Inc., 8 Fla. L. Weekly Supp. 830 (Fla. 9th Cir. Oct. 1, 2001). In Lamar, the State Attorney in the Ninth Judicial Circuit filed an August 1994 complaint seeking RICO forfeiture against Furtney and Pondella for their bingo violations in Orange and Osceola Counties. In July 2001, the State moved to consolidate that case with the underlying case, arguing the case below “include[d] and subsume[d] the subject matter” of Lamar and was based on the same bingo operations. The Lamar court denied the motion and granted summary judgment for Pondella and Furtney in the State’s forfeiture action based upon the bingo operation in Orange County. It held that Bradenton II controlled, and further held:

2. That the alleged conduct of bingo games and the alleged violations of any regulations dealing with the conduct of those games, including those specifically set out in Section 849.0931, Fla. Stat., do not and cannot form the basis of a racketeering violation or any violation of Section 895.01, et seq., or violations of any of the other gambling laws in Chapter 849. Section 849.0931 pre-empts and supersedes the filing of criminal charges under any other provision of Chapter 849, Fla. Stat.
3. That the bingo equipment and property seized by the Plaintiff are therefore not subject to forfeiture under Chapter 849 or under Chapter 895, Fla. Stat.

8 Fla. L. Weekly Supp. at 831.

The court below judicially noticed Lamar, but denied summary judgment because it believed res judicata did not apply. Lamar dealt with bingo, during a certain date range, in Orange and Osceola Counties; in contrast, the case below dealt with “lotteries,” during a somewhat expanded date range, throughout Florida.

In June 2004, the court granted the State’s second motion to amend its second amended complaint. The order was accompanied by a list of 13 amended predicate acts that were supposed to replace numbers 1-13 of the second amended complaint. In May 2004, defendants moved for damages resulting from the injunction under section 60.07. Finally, the court acknowledged that, if it granted the defendants’ motion in limine to exclude any evidence or allegation that section 849.0931 was violated by them, it “would gut [the State’s] entire case.”

The two-week trial took place in February 2005. The State’s focus, from its opening statement, was almost entirely on the Bingo Statute: “[T]he Florida Statute [it] alleged these defendants violated [was] the Florida Bingo statute or the Florida Lottery Statute.” The primary violations throughout the trial were that the bingo operators were not bona fide members of the charities, and that the defendants were responsible for illegally stuffing the tip jars with pay. The State’s closing argument emphasized that the “case [came] down to two things”: whether the workers were paid and whether they were bona fide members of the charities. For racketeering, all the jury had to do was find a violation of the Bingo Statute. The State reiterated that: - “Bingo is gambling. That’s just it. That such gambling business violated the laws of the State of Florida.”

The jury was instructed on the Bingo Statute and found the defendants had engaged in racketeering activity.

After Trial

A flurry of motions followed. The defendants moved for directed verdict, set aside, new trial, remittitur, and damages resulting from the temporary injunction. The State moved for a permanent injunction ordering the defendants to divest themselves of any interests concerning bingo, refrain from any conduct or operations involving bingo or lotteries, and forfeit any licenses, permits, or approvals obtained or used for the purpose of operating bingo halls or conducting bingo games or lotteries.

The amended final judgment, order on post-trial motions, and a consolidated order on the injunctions and damages held that the defendants had engaged in racketeering activity, were not entitled to damages under the injunction, and forfeited their interest in property in which they had an interest when the action was filed. The court remitted the damages amount to $10,000. As to damages for the injunction, though the court ruled that the defendants were not entitled to damages, it heard evidence of the damages through testimony by Furtney and an expert witness’s testimony and documentation. The court held it was not making a finding on the reasonableness of damages, and acknowledged the State’s claim that, if the judgment was reversed, the State would argue about the amount of . damages claimed. The parties and court believed they would return to the damages issue if this court sent the case back.

The defendants raise 13 issues on appeal, and the State, on cross-appeal, argues that granting remittitur was error. We find three issues to be dispositive. Collateral estoppel barred the action below, violations of the Bingo Statute are not punishable under Florida RICO statutes, and the trial court should consider the defendants’ entitlement to damages resulting from the State’s injunction.

A. Collateral estoppel

Pondella claims that the action below was barred by the judgment in Lamar under the doctrines of res judicata, the prohibition against splitting causes of action, and collateral estoppel. The defendants raised this claim several times below in motions for summary judgment, which the trial court denied. The standard of review for orders on summary judgment is de novo. Major League Baseball v. Morsani 790 So.2d 1071, 1074 (Fla.2001).

“[C]ollateral estoppel prevents identical parties from relitigating identical issues that have been determined in a prior litigation.” Hicks v. Hoagland, 953 So.2d 695, 698 (Fla. 5th DCA 2007) (citing Burns v. Daimler Chrysler Corp., 914 So.2d 451, 453 (Fla. 4th DCA 2005)).

“Collateral estoppel is a judicial doctrine which in general terms prevents identical parties from relitigating the same issues that have already been decided.” Under Florida law, collateral estoppel, or issue preclusion, applies when “the identical issue has been litigated between the same parties or their privies.” In addition, the particular matter must be fully litigated and determined in a contest that results in a final decision of a court of competent jurisdiction.

City of Oldsmar v. State, 790 So.2d 1042, 1046 n. 4 (citations omitted). Thus, even if the causes of action are different, thus barring res judicata, collateral estoppel bars the re-litigation of specific issues that were litigated and decided in the former suit. Zikofsky v. Mktg. 10, Inc., 904 So.2d 520, 525 (Fla. 4th DCA 2005).

Pondella notes that the State brought the Lamar case as a RICO forfeiture case on the basis of Pondella and Furtney’s bingo operations. The complaint in Lamar alleged various violations of the Bingo Statute, which were repeated in the amended complaints in the action here. Furthermore, in the State’s motion to consolidate in that case, the State argued the case below included and subsumed the matter in Lamar. Pondella and Furtney were awarded summary judgment on the basis that bingo violations cannot form the basis of a racketeering violation. The State did not appeal the summary judgment against it in Lamar.

Pondella argues that Eight Hundred and Bradenton may also invoke collateral estoppel because they were privies of Pon-della and Furtney. See, e.g., Gwynn v. Daly Agency, Inc., 759 So.2d 20, 22 (Fla. 3d DCA 2000). The State does not dispute that Eight Hundred and Bradenton were privies of Pondella and Furtney, but responds that the defendants did not specify which issue they believed to be precluded. This argument is disingenuous. The Lamar court granted summary judgment based on Bradenton II’s holding that the conduct of bingo games and violations of the Bingo Statute “do not and cannot form the basis of a racketeering violation or any violation of [the Florida RICO statutes] .... ” As a result, the defendants’ equipment and property was not subject to RICO forfeiture.

The State’s second argument is that the court never decided the State’s argument in this case, that bingo violations could give rise to the businesses being defined as “illegal gambling businesses” under federal law and swept into RICO under section 895.02(l)(b). This point is discussed further below, but as to collateral estoppel, the State misses the point. For collateral estoppel to apply, the Lamar judgment was not required to address every permutation of every argument by which the State could classify bingo offenses as RICO violations. The issues in Lamar and in the case below were identical: whether specific, enumerated violations of the Bingo Statute constituted predicate acts giving rise to RICO liability. The judgment in Lamar concluded that they could not. Thus, Lamar represented a final adjudication of the overriding, dispos-itive issue: whether bingo violations could form the predicate for RICO forfeiture. See Zimmerman v. Office of Ins. Regulation, 944 So.2d 1163, 1168 (Fla. 4th DCA 2006).

B. Whether violations of Bingo Statute are punishable under Florida RICO statute

The defendants argue that, under Bradenton II, bingo violations can never form the basis of a RICO claim. The State responds that Bradenton II bars RICO liability for routine bingo offenses, not commercial operations that may be defined as illegal gambling businesses under federal law. The State’s argument ignores the language and reasoning of Bradenton II.

In Bradenton II, the Florida Supreme Court explicitly held “that under the present statutory scheme violations of the Bingo Statute are not punishable under the lottery or RICO statutes.” 727 So.2d at 202. The supreme court did so after considering all bingo violations that the State raised at the 2005 trial. See id. at 200 (quoting nine violations of the Bingo Statute, including that persons conducting bingo games were not bona fide members of charities and that bingo game proceeds were not returned to players in the form of prizes). Bradenton II discussed at length section 849.0931, the Bingo Statute. Id. at 201-02. The Florida Supreme Court explicitly disagreed with the State’s argument that the defendants were unauthorized organizations whose violations of the Bingo Statute constituted illegal lotteries subject to punishment and forfeiture under the lottery and RICO statutes. Id. at 201. It noted that the lottery statute expressly does not apply to bingo. Id. at 202 (quoting § 849.09(3), Fla. Stat. (1993)). Furthermore, the RICO statute listed the provisions of the gambling chapter that it punished and did not include the Bingo Statute. Id. (citing § 895.02(1)(a)(32), Fla. Stat. (1995)). The Florida Supreme Court closed its discussion of the relationship between the Bingo Statute and the RICO statutes:

Without a clearer signal from the legislature, we are unwilling to create such a distinction and transform routine bingo offenses into lottery and RICO violations. Accordingly, we answer the certified question in the negative and hold that under the present statutory scheme violations of the bingo statute are not punishable under the lottery or RICO statutes.

Id.

Importantly, the “statutory scheme” already included section 895.02(l)(b), Florida Statutes (1995), by which the State attempted to use federal law to render the defendants’ bingo violations subject to Florida RICO. In light of the subsection’s existence when the Florida Supreme Court held that the “present statutory scheme” did not provide for RICO liability for bingo, the State’s attempt to create RICO liability for bingo violations through section 895.02(l)(b) is directly contrary to the supreme court’s decision and reasoning in Bradenton II.

C. Defendants’ damages

The defendants argue that they are entitled to damages for the State’s wrongful injunction entered in 1995. The State responds that they are not entitled to damages because no bond was entered, the injunction was not wrongful, and it is illegal to profit from bingo. The defendants are correct.

The State argues that the defendants were not entitled to relief because, under section 60.07, a defendant may only recover damages under an injunction bond. Because there was no injunction bond entered here, then, the defendants could receive nothing. The State’s argument overlooks both the Florida Supreme Court’s award of costs and fees to the defendants after Bradenton II, which were premised on section 60.07, and contrary precedent. The Florida Supreme Court discussed this issue in Provident Management Corp. v. City of Treasure Island, 718 So.2d 738 (Fla.1998). There, the court restated the rule that damages under section 60.07 were limited to the amount of the bond. Provident, 718 So.2d at 739. However, this rule did not apply if the government had secured an unbonded injunction:

[WJhere a court “dispenses with a bond” pursuant to the provisions of rule 1.610(b), the enjoined party is entitled to seek the full measure of the damages it sustained by reason of the -wrongfully issued preliminary injunction.
To say that damaged parties are automatically barred from redress whenever a city posts no bond would impede the injunction process for governmental bodies, for if no citizen could obtain redress without a bond, courts would be reluctant to issue unbonded injunctions. This would thwart a purpose of rule 1.610(b), which is to make it easier, not harder, for governments to enforce their policies via injunctions.

Id. at 739-40.

The State’s second argument was that the injunction was never adjudicated wrongful. Parties may still recover for the damages stemming from a -wrongful injunction though the injunction is obtained in good faith. See, e.g., Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018, 1021 (Fla.1989). In addition, the State’s description of the injunction’s dissolution as purely procedural is incorrect. This assertion might be accurate if the State allowed the injunction to lapse after the court’s 1996 order requiring the State to post bond. On the contrary, the State’s appeal and filing of an emergency writ in this court prevented the trial court from dissolving the injunction based on the failure to post bond until 1999. See Bra-denton I, 701 So.2d at 1172-73. In the unique circumstances here — where this court and the supreme court highlighted the injunction’s very broad nature and the severe harm to the defendants, and where the Florida Supreme Court explicitly awarded fees to the defendants based on section 60.07 — “the dissolution of [the] temporary injunction [was] tantamount to a determination that the injunction was wrongfully issued [and] entitle[d] the defendant to recover for damages resulting from its issuance.” Picasso Tower, Inc. v. Dairene Int’l, 874 So.2d 640, 642 (Fla. 3d DCA 2004) (quoting Roger Dean Chevrolet, Inc. v. Painters, Decorators & Paperhangers of Am., 155 So.2d 422, 425 (Fla. 2d DCA 1963)).

Finally, the State’s argument that the defendants may not recover for the injunction because they were legally precluded from profits relating to bingo cannot be squared with the Florida Supreme Court’s previous award of costs and fees to the defendants after Bradenton II and its quotation with approval of this court’s observation that the “very broad injunction the [S]tate requested — and received — will severely damage the defendants if its entry was improper.” Bradenton II, 727 So.2d at 202 (quoting Bradenton I, 701 So.2d at 1180).

The defendants’ bingo offenses could not form the basis for RICO liability and forfeiture. Bradenton II and collateral es-toppel barred the action below. We are intrigued by the State’s zealousness in this prosecution in light of the Florida Supreme Court’s ruling in Bradenton II and Pondella Hall for Hire, Inc. v. City of St. Cloud, 837 So.2d 510, 510-11 (Fla. 5th DCA 2003). During oral argument, the State contended that minor changes in the amended complaint, additional parties and reliance on a federal statute supported the revised prosecution. The argument is specious. The American Bar Association Standards for Criminal Justice, Prosecution Function Standard 3 — 1.1(b) and 3-l.l(e) (2nd ed. 1986 Supp.) states:

(b) The prosecutor is both an administrator of justice and an advocate. The prosecutor must exercise sound discretion in the performance of his or her functions.
(e) The duty of the prosecutor is to seek justice, not merely to convict.

We recommend this section to the prosecutors for their edification and enlightenment. Therefore, we REVERSE and REMAND for further proceedings in accordance with this opinion.

PALMER, C.J., concurs.

TORPY, J., concurs in result only, without opinion.

      . Furtney was the president of the three companies. Pondella received income from rentals to charities and from sale of bingo paper. Eight Hundred received income from canteen sales in the halls — crane machines, cigarette sales, candy sales, etc. Bradenton owned two of the properties and received income from renting them to Pondella.

      . In a related case, we included language, which reflected our belief that the Florida Supreme Court’s decision had eliminated the State’s forfeiture claim: "[A] RICO action filed by the Attorney General ultimately was invalidated by the Florida Supreme Court. See [Bradenton 27]." Pondella Hall for Hire, Inc. v. City of St. Cloud, 837 So.2d 510, 510-11 (Fla. 5th DCA 2003).

      . The Lamar amended complaint sought, among other things, forfeiture under Florida’s RICO statute. The charges were based on Furtney and Pondella's operation of a public gambling house and its operation of illegal lotteries based on its 1993 bingo violations in Orange and Osceola Counties. The RICO enterprise was the commercial bingo operation operating from August 1993 to April 1994. In the case below, two of the predicate acts considered by the jury concerned the same Orange and Osceola Counties’ bingo halls during the same timeframes at issue in Lamar.

      . The State occasionally discussed other games that allegedly were not bingo, but the unrefuted testimony established those games used bingo cards supplied by a bingo supplier and were played with bingo balls pulled from a bingo blower. Likewise, the issue of promotional giveaways was insubstantial.

      . The State argues in a footnote that Braden-ton II also does not apply because the State alleged that the defendants violated the lottery statute. There were two grounds for the lottery violations: that various games were not bingo games, and that the promotional giveaways constituted illegal lotteries. The evidence at trial undermined both arguments. Uncontroverted testimony refuted these allegations. More importantly, the State, at trial and during oral argument on appeal, emphasized that the primary issue was the defendant's bingo violations, which purportedly constituted racketeering activity.


text:
    Samuel B. SUNDARAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3351.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2007.
    J. Jervis Wise, of Bjorn E. Brunvand, P.A., Clearwater, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Perez v. State, 934 So.2d 495 (Fla. 3d DCA 2005); Zelaya v. State, 891 So.2d 1192 (Fla. 3d DCA 2005).

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


author: GROSS, J.

text:
    John CLINTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4279.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Rehearing Denied Jan. 8, 2008.

      John G. George of John G. George, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We affirm John Clinton’s conviction of aggravated battery, finding no error in the admission of certain evidence, no prejudicial error in the failure to record several bench conferences, and no double jeopardy violation.

In a two-count information, the state charged Clinton with attempted first degree murder and aggravated battery. The attempted murder charge in Count I specified the criminal conduct as “repeatedly stabbing [the victim], saying ‘die nigger, die’ or words to that effect.” Count II charged aggravated battery and described the crime as either an unlawful and intentional “touch or strike” with a deadly weapon or the causing of great bodily harm, permanent disability, or permanent disfigurement “by stabbing [the victim] repeatedly.”

The evidence at trial was that Clinton stabbed Stacy Landy because Landy gave him bogus cocaine rock. First, Clinton stabbed Landy in the stomach. Landy felt a “hard pinch” and walked away. Landy then walked towards a convenience store and collapsed into the arms of a friend, Katrina Mutz, who tried to fight off Clinton’s repeated efforts to stab a “limp” Lan-dy, but Clinton succeeded in stabbing him in the rib cage. After this last stabbing, Clinton stood over Landy screaming, “I’m going to kill you nigger,” over and over.

The judge submitted the attempted murder charge to the jury with five lesser included offenses, including aggravated battery. The jury found Clinton not guilty on the Count I attempted murder charge and guilty of aggravated battery as charged in Count II.

Clinton contends that the trial court erred in allowing Mutz to testify about the racial slur. Clinton failed to object to this evidence at trial, so it was not preserved for appellate review. See § 924.051(3), Fla. Stat. (2006). In any event, the evidence of the slur was properly admitted because Clinton said it immediately after the stabbing, so it was relevant to prove that he acted with a premeditated design to cause the victim’s death. Compare McBride v. State, 338 So.2d 567 (Fla. 1st DCA 1976) (holding that trial court should have granted mistrial after prosecutor elicited testimony concerning defendant’s racial slur about a deputy’s wife that had no relevance to case).

Next, Clinton contends that double jeopardy bars his conviction of aggravated battery under Count II because he was acquitted of Count I, which contained a lesser included offense of aggravated battery. Clinton argues that there was “one stabbing of one -victim taking place in a single episode” and that the verdicts are truly inconsistent. However, we find no double jeopardy violation because the evidence demonstrated that the stabbings were multiple criminal episodes; they occurred in different locations with temporal breaks between the stabbings. See State v. Paul, 934 So.2d 1167, 1173 (Fla.2006). Each temporal break allowed Clinton to reflect and form a new criminal intent for each stabbing. See Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004). There is no inconsistency in the verdicts because the jury could have viewed the evidence differently as to each attack. Also, the verdict might well have been the result of the jury exercising its pardon power, rather than a definitive statement on Clinton’s innocence.

This was not a situation of a truly inconsistent verdict on legally interlocking charges. See State v. Powell, 674 So.2d 731, 732-33 (Fla.1996). This court has defined true inconsistent verdicts as “those in which an acquittal on one count negates a necessary element for conviction on another count.” Gonzalez v. State, 440 So.2d 514, 515 (Fla. 4th DCA 1983); Hill v. State, 839 So.2d 865 (Fla. 4th DCA 2003). Only “[v]erdicts that are inconsistent in this way ‘require acquittal.’ ” Moody v. State, 931 So.2d 177, 183 (Fla. 2d DCA 2006) (citation and emphasis omitted).

Finally, we find no error in the failure of the court reporter to record several sidebar conferences. The defects in the record were “inconsequential inaccuracies or omissions” insufficient to justify a new trial. See Osborne v. State, 290 So.2d 93 (Fla. 1st DCA 1974).

Affirmed.

WARNER, J., and CHUMBLEY, DOUGLAS, Associate Judge, concur.


text:
    Eli Enrique VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2153.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2007.

      Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill Kramer Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Eli Enrique Valdes, appeals the judgment of conviction and sentence imposed after a jury finding of guilt for three counts of attempted second degree murder with a firearm; one count of discharging a firearm from a vehicle in violation of section 790.15(2), Florida Statutes (2003); and one count of shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003). The defendant claims that: (1) that his convictions for attempted second degree murder must be reversed due to the trial court’s failure to give a particular jury instruction; (2) dual convictions, arising under one criminal episode, for the offenses of shooting into an occupied vehicle and shooting from a vehicle, violate double jeopardy; and (3) the habitual violent felony offender sentences imposed for the three counts of attempted second degree murder must be stricken because the Prison Releasee Reoffender Act does not permit equal concurrent sentences as both an habitual violent felony offender and a prison releasee reoffender. While we find no merit regarding the defendant’s first two claims, we do with his third claim. We, therefore, affirm the defendant’s convictions and remand with instructions to the trial court to strike the concurrent thirty-year habitual violent felony offender sentences.

The facts are as follows: Natalie Gianel-la, Rocío Rodriguez, and a minor, A.R., were traveling in Rodriguez’s vehicle when the defendant pulled alongside the vehicle, argued with Gianella, and fired four shots at the occupants of the vehicle, striking Gianella twice.

The Defendant’s Jury Instruction Claim

During the charge conference, defense counsel requested that the jury be instructed as to the available lesser-included offenses, and specifically requested that as to the attempted second degree murder charges, the jury be instructed on the lesser-ineluded offenses of aggravated battery and attempted voluntary manslaughter. Attempted voluntary manslaughter is a necessarily lesser-ineluded offense of attempted second degree murder, and that instruction was given. Aggravated battery is a category II, permissive lesser-ineluded offense of attempted second degree murder. This instruction was not given as the statutory elements of aggravated battery were not alleged in the information. The defendant concedes that the failure to instruct the jury as to aggravated battery, as a lesser-ineluded offense of attempted second degree murder, was not error.

The defendant, however, claims that the trial court erred in failing to instruct the jury as to attempted aggravated battery, as a lesser-included offense of attempted second degree murder. We disagree.

Attempted, aggravated battery is a permissive lesser-included offense of attempted second degree murder, not a necessarily lesser-included offense of attempted second degree murder. Therefore, the trial court was not required to provide that instruction to the jury unless the instruction was properly requested, the information alleged all of the statutory elements of the permissive lesser-included offense, and the evidence adduced at trial established all of these elements. See Jones v. State, 666 So.2d 960, 963 (Fla. 3d DCA 1996). Because the defendant did not request that this instruction be given, the trial court did not err in failing to give it. Furthermore, because defense counsel neither requested that an attempted aggravated batter-y instruction be given, nor objected when the instruction was not provided to the jury, the failure to provide the instruction to the jury was not preserved for appellate review.

The Defendant’s Double Jeopardy Claim

The defendant raises a double jeopardy claim for the first time on appeal. Although the defendant failed to raise the issue below, a double jeopardy violation constitutes fundamental error, see State v. Johnson, 483 So.2d 420, 421 (Fla.1986), and a claim of fundamental error may be raised for the first time on direct appeal. See Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970); Corvo v. State, 916 So.2d 44, 46 (Fla. 3d DCA 2005); Barfield v. State, 871 So.2d 929, 930-31 (Fla. 5th DCA 2004). We, therefore, address the merits of the defendant’s claim.

The defendant claims that his convictions for shooting from a vehicle in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003), violate double jeopardy, as the offenses arose out of the same criminal episode. We disagree.

Section 790.15, Florida Statutes (2003), provides, in pertinent part, as follows: '

790.15 Discharging firearm in public.—

(1) Except as provided in subsection (2) or subsection (3), any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street or whosoever knowingly discharges any firearm over the right-of-way of any paved public road, highway, or street or over any occupied premises is guilty of a misdemeanor of the first degree ....
(2) Any occupant of any vehicle who knowingly and willfully discharges any firearm from the vehicle within 1,000 feet of any person commits a felony of the second degree....

The defendant was convicted under section 790.15(2) of this statute. Section 790.19, Florida Statutes (2003), provides, in pertinent part, as follows:

790.19 Shooting into or throwing deadly missiles into dwellings, public or private buildings, occupied or not occupied; vessels, aircraft, buses, railroad cars, streetcars, or other vehicles. — Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree ....

The Fifth Amendment to the United States Constitution and Article I, Section 9, of the Florida Constitution, protect criminal defendants from multiple convictions and punishments for the same offense. See U.S. Const. Amend. V; Art. I, § 9, Fla. Const. “[Ajbsent a clear statement of legislative intent, the test of whether multiple convictions for an act or acts committed during a single episode constitute double jeopardy is governed by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).” State v. Florida, 894 So.2d 941, 945 (Fla.2005). “Under Blockburger, dual convictions are authorized only if each offense contains an element that the other does not.” Florida, 894 So.2d at 945. The Blockburger test has been codified in section 775.021(4), Florida Statutes (2003), which provides as follows:

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate -criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

In applying section 775.021, the court must first determine whether under subsection (4)(a) and Blockburger, the offenses require proof of identical elements. If they do, double jeopardy bars the defendant’s convictions for both offenses. Next, if the offenses do not have identical elements, the court must determine whether any of the three statutory exceptions contained in subsection (4)(b) apply. If any of the exceptions apply, double jeopardy bars convictions for both offenses. Florida, 894 So.2d at 945.

It is clear, and defense counsel concedes, that under the Blockburger test, as codified in section 775.021(4)(a), section 790.15(2), discharging a firearm from a vehicle within 1,000 feet of any person, and section 790.19, shooting or throwing a deadly missile at, within, or into any building, vehicle, aircraft or vessel, each contain an element distinct from the other. Section 790.15(2) requires the willful discharge of a firearm from a vehicle within 1,000 feet of a person. Section 790.19 requires not mere willfulness, but malice, and does not require that any person be within the structure or near the structure at the time. Therefore, separate convictions are authorized unless these offenses fall within one of the exceptions in subsection (4)(b). Subsection (4)(b)(l), which concerns offenses that “require identical elements of proof,” does not apply here. As previously discussed, pursuant to section 790.15(2), the State was required to prove that Valdes fired the weapon from a vehicle within 1,000 feet of another person. Pursuant to section 790.19, the State was required to prove that when Valdes discharged the firearm, he did so with malice, and that he fired at, within, or into a building or vehicle. Thus, the first exception under subsection (4)(b)(l) does not apply, and it does not appear that Valdes argues otherwise.

Likewise, it is clear that the third exception under subsection (4)(b)(3) does not apply, as neither offense is a lesser-included offense of the other. See Florida, 894 So.2d at 948 (specifically noting that subsection (4)(b)(3) applies only to necessarily lesser-included offenses listed in category 1 of the Schedule of Lesser Included Offenses); see also State v. McCloud, 577 So.2d 939, 941 (Fla.1991); Aiken v. State, 742 So.2d 811, 812 (Fla. 2d DCA 1999).

The defendant’s double jeopardy argument is, therefore, based upon the second exception found in subsection (4)(b)(2), that the offenses “are degrees of the same offense.” The defendant claims that dual convictions for both shooting offenses violate double jeopardy -as they are both degree variants of the same core offense. Offenses are considered degree variants of the same core offense where both crimes intend to punish the “same primary evil.” State v. Paul, 934 So.2d 1167, 1175 (Fla.2006).

In Florida, the Florida Supreme Court noted that “[t]he terms icore offense’ and ‘degree variant’ entered this Court’s lexicon in Sirmons v. State, 634 So.2d 153,154 (Fla.1994),” wherein the court held that dual convictions for armed robbery and grand theft automobile violated double jeopardy because “these offenses are merely degree variants of the core offense of theft.” Florida, 894 So.2d at 948 (quoting Sirmons, 634 So.2d at 154).

Valdes does not assert what core offense these statutes allegedly share or what the evil is that these statutes seek to punish. The Fifth District Court of Appeal suggests that the primary evil “is the endangerment of the safety of those who may be struck by the discharge from the firearm,” Lopez-Vazquez v. State, 931 So.2d 231, 235 (Fla. 5th DCA 2006), and that both of these offenses share the same evil. Id. The Fifth District also concludes that these two offenses share the same core offense of battery. Id. Thus, the Fifth District concluded that convictions for both offenses violate double jeopardy principles. We disagree.

We begin first with the conclusion that these two offenses share the same core offense of battery. The Fifth District’s opinion in Lopez-Vazquez provides us with no insight as to the basis for reaching that conclusion, other than to quote from Justice Kogan’s observation in his concurring opinion in Sirmons, that- “theft, battery, possession of contraband and homicide are the type of core offenses úpon which other criminal charges are based” and that “attempted first-degree murder punishes the intent to kill, whereas aggravated battery causing great bodily harm punishes the act of seriously injuring another person.” Lopez-Vazquez, 931 So.2d at 234 (quoting Sirmons, 634 So.2d at 155 (Kogan, J., concurring)). The Fifth District concluded that these shooting offenses exclude lethal potential and, therefore, “must lie outside the core offense of homicide.” Lopez-Vazquez, 931 So.2d at 235. Thus, it appears that the Fifth District concluded, apparently by the process of elimination, that the core offense for each shooting offense could not be homicide, and therefore, it must be battery. The Florida Supreme Court, however, rejected that argument in Gordon v. State, 780 So.2d 17, 23-24 (Fla.2001).

In Gordon, the Florida Supreme Court, in noting Justice Kogan’s comments in Sir- mans, concluded that such a broad reading of Sirmons “would render section 775.021 a nullity” due to the limited number of “core” crimes. Gordon, 780 So.2d at 23. Specifically, the Court stated:

Justice Kogan, in his Sirmons concurrence, continued with the core offenses analysis, in essence, opining that theft, battery, possession of contraband and homicide are the type of core offenses upon which other criminal charges are based_ Extended to its logical extreme, a broad reading of Sirmons and the second statutory exception would render section 775.021 a nullity. Indeed, the plethora of criminal offenses is undoubtedly derived from a limited number of “core” crimes. In no uncertain terms, the Legislature specifically expressed its intent that criminal defendants should be convicted and sentenced for every crime committed during the course of one criminal episode. See § 775.021(4)(b).

Id. (citation omitted).

Section 775.021 was amended in 1989. Prior to the amendment of section 775.021, the courts of this state employed several rules of construction, including the rule of lenity in determining whether convictions for certain offenses committed in the same criminal episode constituted double jeopardy. The courts commonly looked for clear statements of legislative intent within the criminal statutes to punish the crimes separately. See Carawan v. State, 515 So.2d 161 (Fla.1987); State v. Boivin, 487 So.2d 1037, 1038 (Fla.1986).

In the subsequent amendment to section 775.021, however, the Legislature explicitly articulated its intent and, therefore, changed the analysis and effectively overruled Carawan. See State v. Smith, 547 So.2d 613, 614-17 (Fla.1989); see also Gordon, 780 So.2d at 23 (“[W]e now know the legislative intent. The subsequent amendment to section 775.021 explicitly states, ‘The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity ... to determine legislative intent.’ § 775.021(4)(b), Fla. Stat. (1997).”) (omission in original).

A thorough examination of sections 790.15 and 790.19 reveals completely different core offenses intending to punish different evils. The core offense of section 790.15 is the discharge of a firearm in public. The statute punishes the willful discharge of a firearm in any public place and increases the penalty if the offender discharges the firearm while in a vehicle within 1,000 feet of another person. The core offense cannot be a battery, as the Fifth District suggests in Lopez-Vazquez, as there is no requirement that the discharge of the firearm result in an injury or that someone be struck by a projectile. In Florida, the Florida Supreme Court found that convictions for attempted second degree murder and aggravated battery did not constitute double jeopardy as the crime of attempted second degree murder does not require victim contact, whereas, aggravated battery does. Florida, 894 So.2d at 949. The court concluded that the primary evil of aggravated battery is the intentional, nonconsensual touching or striking, whereas the primary evil of attempted second degree murder is the potential of the act to cause death. Id. Likewise, discharging a firearm in public does not require victim contact. The core offense, therefore, is the discharge of the firearm into the public domain, not battery, and the primary evil is the potential for someone in the public domain to be injured or killed without any malice or intent to inflict bodily harm.

In contrast, the core offense of section 790.19 is the shooting or throwing of any deadly missile into or at a building or vehicle with malice. Where section 790.15 punishes firing a gun into the air with no evil intent and seeks to prevent even innocent revelers celebrating the new year from discharging a gun in public, section 790.19 punishes those who fire or hurl deadly objects at or into buildings and vehicles with the intent to cause fear or to inflict injury to a person. What the Legislature is attempting to protect in enacting section 790.19 is the safety and peace of mind of people in this state within their homes, vehicles, and other buildings. The evil that section 790.19 punishes is not thoughtless or otherwise innocent conduct, but malicious acts which destroy our sense of safety within structures and vehicles. Thus, throwing a rock from an overpass at a passing vehicle carries the same penalty as shooting a firearm into a house, building, or vehicle under section 790.19. Section 790.15 elevates the crime of discharging a firearm in public from a first degree misdemeanor to a second degree felony if, when the offender discharges the firearm, he does so from a vehicle within 1,000 feet of another person. On the other hand, a violation of section 790.19 is a second degree felony, even if no person is within the structure or vehicle when the object is thrown at or into the structure or vehicle at the time, because it is not just the potential to cause injury that section 790.19 addresses, but the evil intent.

In Gordon, the Florida Supreme Court found no double jeopardy violation for convictions of attempted first degree murder, aggravated battery, and felony causing bodily injury. The court rejected Gordon’s argument that these offenses share the same core offense of injuring someone. Gordon, 780 So.2d at 23. The court reasoned that attempted first degree murder punishes the intent to kill, whereas aggravated battery causing great bodily harm punishes the act of seriously injuring another person, and felony causing bodily injury punishes the act of injuring someone during the commission of a felony. Thus, the Florida Supreme Court concluded that “the separate evils of intending to kill, seriously injuring someone, and injuring someone during the commission of a felony are sufficiently distinct that they warrant separate punishment.” Id.

No double jeopardy exists in the instant case because section 790.15 punishes the discharge of a firearm in public, whereas section 790.19 punishes the intent to injure or to cause fear. Moreover, section 790.15 protects people outside in public places, whereas section 790.19 protects people in their homes, vehicles, or other structures.

THE SENTENCING ISSUE

We agree, and the State properly concedes, that the equal concurrent thirty-year sentences as both an habitual violent felony offender and as a prison releasee reoffender, was error. See Bloodworth v. State, 790 So.2d 1032, 1033 (Fla.2001) (“The imposition of sentences under both the [Prison Releasee Reoffender] Act and the habitual violent felony offender statute does not violate principles of double jeopardy, but the imposition of equal concurrent sentences here violates the Act itself.”); Martin v. State, 813 So.2d 1036, 1036 (Fla. 3d DCA 2002) (holding that the imposition of “equal concurrent sentences of imprisonment under both the Habitual Felony Offender Statute and the Prison Releasefe] Reoffender Act” was error) (citing Grant v. State, 770 So.2d 655 (Fla.2000)). We, therefore, remand to the trial court to strike the habitual violent felony offender sentences. As the correction of the defendant’s sentence is clerical, not substantive, the defendant need not be present.

In light of this opinion, we certify direct conflict with the Fifth District Court of Appeal’s decision in Lopez-Vazquez.

Affirmed in part; remanded with instructions; conflict certified.

      . We specifically recognize our decision in Wilcher v. State, 524 So.2d 1105 (Fla. 3d DCA 1988). Wilcher was decided prior to the amendment of section 775.021(4), and specifically relied upon Carawan. As previously noted in this opinion, the Florida Supreme Court has stated that, by amending section 775.021(4), the Legislature has effectively overruled Carawan. See Gordon, 780 So.2d at 24 (stating "we have noted repeatedly that the Legislature effectively overruled Carawan "); see also State v. Johnson, 601 So.2d 219, 221 (Fla.1992) ("The purpose of Chapter 88-131 was to overrule our opinion in Carawan. As amended, section 775.021(4) makes it clear that a defendant may be convicted of two or more criminal offenses arising out of the same transaction as long as each criminal offense contains at least one separate element.”); State v. Smith, 547 So.2d 613, 615—17 (Fla. 1989). We, therefore, note that, because the Florida Legislature amended section 775.021(4), and Carawan no longer has validity, Wilcher, which was decided prior to the amendment of the statute and which relied upon Carawan, also has no validity.


text:
    Edwin C. LANE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-1851.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2007.
    Edwin C. Lane, in proper person.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for respondent.
    Before GERSTEN, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

Defendant petitions for a writ of prohibition. Upon review of the memorandum and the file in question, we note that, although this case was listed by the petitioner as being in the Circuit Court of the Eleventh Judicial Circuit, it is, in fact, a petition for a writ of prohibition directed to the County Court of Miami-Dade County, Florida. The defendant seeks a writ of prohibition for discharge based on the speedy trial rule. Jurisdiction lies in the Circuit Court, Appellate Division, and, pursuant to Florida Rules of Appellate Procedure 9.040(b), we transfer this cause to the Appellate Division of the Circuit Court. Clanton v. Mapp, 559 So.2d 656 (Fla. 3d DCA 1990).

This cause is transferred to the Circuit Court, Appellate Division, in and for the Eleventh Judicial Circuit.


author: POLEN, J.

text:
    Junior FULLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4577.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Junior Fuller timely appeals the final order committing him to the Department of Children and Family Services. We reverse the trial court’s order as the trial judge failed to ask whether Appellant knew he was waiving his right to a jury trial.

This appeal arose from an incident in which Fuller stabbed a roommate at his assisted living facility. The victim suffered a punctured lung, a lacerated liver, and other injuries for which he was hospitalized. Fuller was charged with aggravated battery with a deadly weapon.

At trial, the defense and the State, based on the reports of their combined medical experts, stipulated to the court that Fuller was not guilty by reason of insanity. Several other medical examiners, however, had previously differed in their evaluations of Fuller’s competency to stand trial. Due to this disagreement, the court asked Fuller: (1) how he was doing, (2) whether he was taking his medication, (3) whether the medication was helping, and (4) whether he was willing to go to a retirement home. After receiving what it deemed to be satisfactory responses, the court accepted the stipulation and adjudicated Fuller not guilty by reason of insanity pursuant to Florida Rule of Criminal Procedure 3.217(a).

“An effective waiver of a constitutional right must be knowing, voluntary, and intelligent.” State v. Upton, 658 So.2d 86, 87 (Fla.1995) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). District courts have properly reversed convictions when the record contained no written waiver of a jury trial and the trial court failed to inquire into the defendant’s waiver of a jury trial or conduct a sufficient inquiry. See, e.g., Tucker v. State, 559 So.2d 218, 220 (Fla.1990); Harringer v. State, 566 So.2d 893 (Fla. 4th DCA1990).

In the instant case, the trial court questioned Fuller only on matters unrelated to whether he knowingly and intelligently waived his right to a jury trial. We therefore reverse the trial court’s order for further proceedings consistent with this opinion.

Reversed and remanded.

KLEIN and MAY, JJ., concur.


text:
    Jean SURIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2238.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2007.
    Jean Surin, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).