text:
    Robert JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3082.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2007.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The trial court revoked appellant’s probation for failing to report to his probation officer, for leaving the county of his residence, and for a new criminal violation. Because the record shows that appellant reasonably believed that he was not on probation when he was released from prison and his supervising officer never instructed him on the conditions of his probation, no willful violation was proved. We reverse.

Jenkins pled no contest to uttering a forged instrument for which he was sentenced to two years in prison, with credit for time served, and six months’ probation. At his sentencing hearing, the prosecutor explained that the probation term was to ensure that Jenkins paid restitution of $280. The court specifically stated that probation could terminate after he paid restitution.

Prior to being released from prison, Jenkins was on work release. A percentage of the money he earned was allocated to pay fees, fines, costs, and restitution owing to his probation. Although there is a discrepancy as to the full amount owed, from the record it appears that the Department of Corrections took out $1,200 from his pay for his restitution obligation and other costs assessed at sentencing. This amount was greater than either of the conflicting amounts from the court documents. Based upon the amount the DOC had deducted from his pay, Jenkins thought he had fully paid the restitution amount.

Jenkins obtained an early release from prison. As such, he was placed on conditional release but he was also subject to probation. Scott Kraich, Jenkins’ supervising probation officer, first met with Jenkins on November 8, 2005. During the meeting, Kraich instructed Jenkins about the terms of Jenkins’ conditional release, including that Jenkins could not leave Osceola County, the county of his residence, without consent. Kraich did not discuss Jenkins’ probation conditions, as he was not aware at the time that Jenkins was on probation. He did not know Jenkins was on probation until later when he received paperwork from St. Lucie County. Therefore, it is clear that Kraich did not advise Jenkins of his probation conditions.

During the November meeting, Kraich told Jenkins to report back for his monthly appointment for “parole” on December 2, but Jenkins failed to do so. Jenkins explained that he did not show up because, “I was on parole, conditional release and I knew if I violated that I would just go back to prison for my gain time and I’d be done and over with it....” As a result, Jenkins indeed did return to prison and served the amount of his gain time.

On January 12, 2006, a warrant for violation of probation was issued alleging that Jenkins violated his probation by failing to report to his probation officer on December 2, 2005 as directed; leaving the county of his residence without permission on December 24, 2005; violating the law by committing the offense of delivery of cocaine on December 24, 2005; possessing unpres-cribed drugs or narcotics by delivering cocaine; and failing to carry out an instruction to report to the probation office on December 2, 2005. Jenkins defended the charges, claiming that he did not know he was on probation. The court disagreed and found that Jenkins had violated his probation by failing to report, leaving the county of his residence, and committing the criminal violation. The court revoked probation and sentenced Jenkins to five years in prison, with credit for time served. He appeals.

The standard of review of a trial court’s revocation of probation is whether the court abused its discretion. Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992). “Probation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation.” Id. “Moreover, a violation which triggers a revocation of probation must be both willful and substantial, and the willful and substantial nature of the violation must be supported by the greater weight of the evidence.” Id. The state has the burden to establish that the probationer willfully violated the terms of his probation. Id. “The determination of whether a violation of probation is willful and substantial is a question of fact and will not be overturned on appeal unless the record shows that there is no evidence to support it.” Davis v. State, 796 So.2d 1222, 1225 (Fla. 4th DCA 2001).

A probationer cannot be found in willful violation of probation if he does not know he was on probation. In Blue v. State, 744 So.2d 543 (Fla. 1st DCA 1999), Blue was released from prison but was never notified that he was on probation. He reported to a probation officer who told him he could find no record of his probationary status. When he subsequently committed a new offense, the state filed an affidavit for violation of probation. Although the trial court revoked probation, the appellate court reversed, concluding that Blue could not have willfully violated a term of probation that he did not know had been imposed.

In this case, Jenkins knew from his sentencing proceeding that he would be on probation, but that it would be terminated when he paid restitution. Because the amount taken out of his pay during his work release from prison was greater than the amount owed for restitution, Jenkins reasonably believed that he satisfied his probation obligation. When he was released, he reported for instructions on his conditional release, but his supervising officer testified that he did not know Jenkins was on probation. Therefore, the officer could not have instructed him and did not instruct him on his probationary terms. Thus, Jenkins reasonably believed that the officer’s instruction to report on December 2, 2005, was for the purposes of conditional release, not probation. Jenkins knew the consequence of violating the terms of his conditional release was to return to prison to serve his gain time. Not knowing that he was still considered on probation, he could not have intentionally violated probation by failing to report, by leaving his residence county, or by committing a new law violation.

Because the facts of this case do not support a willful violation of probation, we reverse for reinstatement of probation. Jenkins may request early termination of probation in accordance with the court’s oral sentencing pronouncement if Jenkins has already paid his restitution.

Reversed.

KLEIN and HAZOURI, JJ., concur.

      . Throughout the hearing on the violation of probation, the supervising officer and the parties erroneously referred to Jenkins’ conditional release as "parole.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ellis HUEWITT, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2646.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2007.
    Rehearing Denied Sept. 19, 2007.
    Ellis Huewitt, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order denying defendant’s motion to correct illegal sentence. The record reflects that appellant committed the underlying offense after the October 1,1998 effective date of the Criminal Punishment Code (CPC). The CPC permits a court to sentence a criminal defendant up to the statutory maximum without the need for written reasons or a departure. Fla. R.Crim. P. 3.704; § 921.0024(2), Fla. Stat. (1999); see also Moore v. State, 882 So.2d 977, 984 (Fla.2004). Thus, appellant could be sentenced up to the statutory maximum for his offense without an “upward departure.”

SHAHOOD, C.J., GUNTHER and TAYLOR, JJ., concur.


author: FARMER, J.

text:
    DEPARTMENT OF CHILDREN & FAMILIES, State of Florida; Guardian ad Litem Program, Petitioners, v. S.T., as mother of E.T. and C.K.; and C.K., the father, Respondents.
    No. 4D07-1798.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2007.

      Patricia M. Propheter, Orlando, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey Bassett, Assistant Attorney General, Fort Lauderdale, for respondent Department of Children and Families.
    Kenneth M. Kaplan, Miami, for the mother.
    Roger Ally of the Law Offices of Roger Ally, P.A., Pembroke Pines, for the father.
   FARMER, J.

A party calling itself the “Guardian ad Litem Program” (GALP) has filed a petition for certiorari seeking extraordinary review of a nonfinal order granting a mother’s motion for reunification entered in a pending child dependency proceeding. The Department of Children and Families of the State of Florida (DCF) has filed a response joining in the petition. Because DCF has joined in this petition, we set aside any doubts we may harbor about GALP’s standing or authority in its own name — rather than through the party represented by a guardian ad litem — to seek review of orders in these proceedings. We find certiorari inappropriate under the facts of this case.

In this case, these two older children had been adjudicated dependent as to both parents on account of multiple incidents of domestic violence committed in their presence. Initially they were left in the mother’s custody under the supervision of DCF. After yet another incident, these two children and the mother’s new infant all were placed in the custody of the paternal grandparents. The trial court accepted a case plan as to the two older children with the goal of reunification.

After barely a month, the mother moved for reunification because she had begun to work on all of the tasks of her case plan and had completed one or more of them. After hearing evidence the court announced that it would order the children returned to the mother — conditioned on her passing a home study by DCF. Although the trial court also announced orally that she was “making no findings,” in her handwritten order she actually stated a finding that it is:

“in the best interests of the children for the children to be reunified with the mother in that the court removed the children on a temporary basis only because of additional incident of domestic violence. The Court now believes the risk to the children was diminished by the mother obtaining her Restraining Order against [the father] and finishing her 4 week (4 classes) Crisis Group Program.”

And, again, even though the trial court did not make an express statement that mother had substantially complied with the case plan, it is obvious that the court was convinced that “the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered” by a return of the children to the mother’s custody. DCF may seek a modification of the return placement with the mother if future incidents of violence occur.

We conclude that the petition fails to demonstrate a departure from the essential requirements of law causing material injury that could not be remedied on a final appeal. Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996).

Certiorari denied.

STONE and WARNER, JJ., concur.

      . " 'Substantial compliance' means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child's parent.” § 39.01(71), Fla. Stat. (2006).


text:
    K.L.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3304.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2007.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the disposition orders, including the Order of Commitment, in all respects except for that part imposing court costs of $65.00 pursuant to section 939.185, Florida Statutes (2006). In light of V.K.E. v. State, 934 So.2d 1276 (Fla.2006), we strike that portion of the orders imposing $65.00 as additional court costs.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    D.S., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3850.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2007.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm the disposition orders, including the Order of Commitment, in all respects except for that part imposing court costs of $65.00 pursuant to section 939.185, Florida Statutes (2006). In light of V.K.E. v. State, 934 So.2d 1276 (Fla.2006), however, and to the extent that the order of the trial court striking the $65.00 cost may have been entered beyond the applicable period for such orders, we strike that portion of the orders imposing $65.00 as additional court costs.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    Freddie SIPLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-2489.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2007.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

Freddie Siplen filed a petition for writ of habeas corpus on July 23, 2007, seeking review of an order entered on May 1, 2007, which modified his probation to include electronic monitoring as a condition of probation. Prior to the filing of the instant habeas petition, Siplen filed a notice of appeal on May 25, 2007, from the same order modifying probation entered on May 1, 2007. That appeal is pending in this court, and has not yet been perfected.

As an order modifying probation may be appealed, the appeal initiated by Siplen is the proper appellate remedy. Therefore, the instant habeas petition is dismissed. See generally Harris v. State, 949 So.2d 241 (Fla. 5th DCA 2007) (habeas corpus may not be used as a substitute for an appeal).

PETITION DISMISSED.

PALMER, C.J., SAWAYA and MONACO, JJ., concur.

      . See Fla. R.App. P.9.140(b)(1)(D).


author: SAWAYA, J.

text:
    Jose Raul VALENTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3867.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2007.

      Jose R. Valentin, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   SAWAYA, J.

We reverse the trial court’s summary denial of the motion filed by Jose Raul Valentin pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. Of the several claims raised by Valentin, only one entitles him to the relief requested. In that claim, Valentin contends that the consecutive three-year minimum mandatory terms imposed pursuant to section 775.087(2), Florida Statutes (1997), for the crimes he committed — felony murder with a special jury finding that Valentin carried a firearm in the commission of the crime and attempted armed robbery with a firearm — constituted an illegal sentence because the two offenses occurred during a single criminal episode.

The trial court rejected Valentin’s claim, holding that it is permissible to impose consecutive minimum mandatory terms for a capital and a noncapital offense committed during the same criminal episode. The trial court relied upon the Florida Supreme Court’s holding in Downs v. State, 616 So.2d 444 (Fla.1993), wherein the court held in pertinent part:

In the instant case we have a capital felony, first-degree murder, and a non-capital felony, aggravated assault. The applicable minimum mandatory sentences, twenty-five years for the former crime and three years for using a firearm during the commission of the latter, address two separate and distinct evils — killing someone and using a firearm. We see no reason why a trial court cannot, in its discretion, stack those minimum mandatory sentences. It would be improper to add a three-year minimum for using a firearm to kill the murder victim to the capital minimum mandatory, but Downs committed two distinct and separate crimes, and the trial court imposed distinct and separate penalties.

Id. at 446 (emphasis added) (footnote omitted). We do not believe that Downs is controlling here and, therefore, the trial court’s reliance thereon was misplaced.

The error committed by the trial court in applying Downs was its failure to recognize that the twenty-five-year minimum term imposed against the defendant in Downs for his first-degree felony murder conviction was the statutorily required penalty for capital murder, whereas his consecutive three-year minimum mandatory term for aggravated assault was a sentence enhancement pursuant to section 775.087(2), Florida Statutes, based on his use of a firearm during the commission of the aggravated assault. Thus, the statutory bases for the minimum mandatory terms in Downs derive from different statutes addressing different evils: section 775.082(1), Florida Statutes (1993), which prohibits the killing of another human being, and section 775.087(2)(a), Florida Statutes (1993), which prohibits the use of a firearm during the commission of a crime. See Downs, 616 So.2d at 445 nn. 1 & 2. We also observe that the emphasized portion of the quote from Downs denotes the court’s belief that had the defendant in that case also received a three-year minimum mandatory sentence for the murder conviction in addition to the three-year minimum mandatory sentence for the non-capital offense, the consecutive three-year sentences would be prohibited.

In the instant case, the only minimum mandatory sentences imposed on Valentin were the three-year variety under section 775.087(2), Florida Statutes (1997). This statute governs the imposition of sentences for specified offenses that involve the use of a firearm, which is the primary evil addressed by the statute. Therefore, Downs does not apply here, and we must resolve the issue raised by Valentin in accordance with precedent that addresses the issue of consecutive minimum mandatory sentences imposed under section 775.087(2).

A general rule has emerged from a trilogy of decisions rendered by the Florida Supreme Court: the imposition of consecutive minimum mandatory sentences under section 775.087(2), Florida Statutes (1997), is improper where the offenses occurred during a single criminal episode unless the defendant discharges the firearm and injures multiple victims or causes multiple injuries to one victim. State v. Christian, 692 So.2d 889 (Fla.1997); State v. Thomas, 487 So.2d 1043 (Fla.1986); Palmer v. State, 438 So.2d 1 (Fla.1983). The injuries bifurcate the crimes thus allowing stacking of minimum mandatory sentences. Christian. Firing the weapon at an individual without striking him or her may be enough to cause the type of injury that will allow imposition of consecutive minimum mandatory sentences under the statute.

A defendant may challenge in a rule 3.800(a) proceeding a trial court’s erroneous imposition of consecutive minimum mandatory sentences where such an error is clear from the face of the record. See Perreault v. State, 853 So.2d 604 (Fla. 5th DCA 2003). Thus, because Valentin has raised a facially sufficient claim for relief, the trial court’s denial of this claim must be reversed. Normally, we would remand the matter to allow the trial court to proceed under one of three options: grant the requested relief if the error appears . on the face of the record; attach records that conclusively refute the claim if that is the case; or, if the court con-eludes that the error is not apparent from the face of the record, state so in its denial of relief. See Perreault. However, we will not do so here because the State has conceded in these proceedings that the crimes Valentin committed did occur during a single criminal episode and that Valentin did not cause harm to multiple victims or cause multiple injuries to one victim. Therefore, the two minimum mandatory sentences must be served concurrently rather consecutively. See Palmer; Elozar v. State, 872 So.2d 934 (Fla. 5th DCA 2004).

In circumstances where the State makes such a concession, we would commend it for its frankness and we do so now, mindful of course, that for all of Valentin’s efforts in pursuing his claim in the trial court and in this court, the State’s concession bestows upon Valentin nothing more than a Pyrrhic victory that results in concurrent rather than consecutive three-year minimum mandatory terms for the attempted robbery conviction and the murder conviction, which carries a life sentence anyway. Because we remand to the trial court to perform the ministerial act of ordering the two minimum mandatory sentences to be served concurrently, which will not affect the term of incarceration he must serve for each conviction, Valentin does not have to be present for resentencing. See Johnson v. State, 899 So.2d 1283, 1283 (Fla. 5th DCA 2005) (“Johnson argues that the ten-year minimum mandatory terms should run concurrently because the crimes occurred during a single criminal episode. We agree and remand for resentencing in accordance with this opinion. Because this corrected sentence has no impact on the term of Johnson’s incarceration, he need not be present at resen-tencing.”) (citation omitted); Simmons v. State, 758 So.2d 1270, 1270 (Fla. 3d DCA 2000) (“Defendant need not be present at the resentencing, and we reject the defendant’s argument that he is entitled to be present. In view of defendant’s other life sentences, this amounts to a technical correction on count twelve only.”).

We affirm the trial court’s denial of Valentin’s remaining claims for relief.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

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

      . In his other claims, Valentin asserts that: the trial court failed to score his conviction for first-degree felony murder on his guidelines scoresheet; his conviction for attempted armed robbery with a firearm should have been scored as a level 6 offense; and the use of the firearm was an essential element of the attempted robbery charge and, therefore, the trial court improperly reclassified his conviction for that offense by imposing a three-year minimum mandatory sentence. The trial court properly denied these claims. As to the last claim, we would simply note that this is not a case in which the use of a firearm was an essential element of the felony and the felony was reclassified to a higher degree felony due to the use of the firearm.

      . Valentin was sentenced to life imprisonment for his first-degree felony murder conviction and a consecutive term of 57.5 months’ imprisonment for his attempted armed robbery conviction.

      . Section 775.087(2) was amended in 1999 and now bears the moniker "10-20-life statute.” See Elozar v. State, 872 So.2d 934 (Fla. 5th DCA 2004). We note that Valentin committed his crimes in 1997 to signify that the provisions of section 775.087(2)(d), Florida Statutes, that were enacted in 1999 do not apply here, although we do not believe that the outcome would be any different under the amended statute. See State v. Sousa, 903 So.2d 923, 927 (Fla.2005) ("[W]e conclude that this amendment to the statute is consistent with the decisions in Christian and Thomas.").

      . See Christian, 692 So.2d 889, 890 n. 1 (Fla.1997) (“The injury may consist of the heightened danger caused by a fired weapon.”); State v. Thomas, 487 So.2d 1043 (Fla.1986) (approving stacking of two firearm mandatory minimum terms where defendant shot one victim and shot at, but missed, another); Goree v. State, 911 So.2d 129 (Fla. 3d DCA 2005); Hargrove v. State, 905 So.2d 275, 276 (Fla. 2d DCA 2005) (upholding consecutive twenty-year minimum mandatory sentences for two counts of attempted first-degree murder with a firearm where defendant stepped in front of vehicle containing two occupants, shot driver and, as driver attempted to drive away, shot at passenger); see also State v. Sousa, 903 So.2d 923 (Fla.2005) (upholding three consecutive minimum mandatory sentences for two convictions of attempted first-degree murder and one count of aggravated battery arising out of a shooting spree during one criminal episode where two of the three victims were shot); Irizarry v. State, 946 So.2d 555, 558 (Fla. 5th DCA 2006) ("It is undisputed that each of Irizarry’s offenses was a 10-20-life offense, that each offense arose from a single criminal episode, and that, during this criminal episode, Irizarry did not injure multiple victims or cause multiple injuries to any one victim. Nor did he fire his gun. Thus, under Christian, the trial court did not have the authority to consecutively impose Irizarry’s minimum mandatory sentences.”).


author: THOMPSON, J.

text:
    Donald Stanford LOWRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1808.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2007.

      Mary Elizabeth Fitzgibbons of Qui-nones, Fitzgibbons, Pfister & Oliver, P.L., Kissimmee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

Donald Stanford Lowry requested rehearing on the basis that counsel did not understand the reason for our per curiam affirmance. To assist counsel’s understanding and reiterate the standard for filing a motion for rehearing, we withdraw our previous opinion and enter this extended opinion that affirms Lowry’s conviction and sentence.

Lowry was convicted for trafficking in 28 grams or more of heroin. On appeal, he claimed the court erred by: (1) admitting testimony about a drug deal that never occurred; (2) admitting into evidence tapes and translations of two phone calls between Lowry and an informant; (3) dismissing a juror who expressed doubt about police credibility based on her knowledge of the scene; (4) not dismissing a juror based on his knowledge of Spanish; (5) permitting the State to strike “nearly all” — that is, two — -jurors who may have been Hispanic without determining the State’s motive; and (6) permitting the State to offer opinion in closing and to mischaracterize evidence. We outline the facts, then fully address seriatim the six grounds for relief raised in Lowry’s appeal.

FACTS

Summary of crime.

Agent George Duke, Officer Edwin Santos, and a confidential informant (“informant”) testified about the heroin deal for which Lowry was convicted. The informant made two monitored, recorded telephone calls on 14 August 2003 in which the informant and Lowry set up a drug deal. That night, the informant and Santos drove to a parking lot and met Lowry. The informant exited Santos’ car, received 30 grams of heroin from Lowry, and reentered Santos’ car. Santos retrieved $3,000 from his trunk and gave it to the informant, who returned to Lowry’s car, gave Lowry the money, and returned to Santos’ car. The informant was searched before and after the deal. The police did not immediately arrest Lowry because they were trying to set up a future transaction to net other co-conspirators. The deal did not occur, and the police arrested Lowry in September 2003. Lowry conceded at trial that he spoke with the informant on 14 August 2003, and met him in a parking lot where the informant twice entered and exited his vehicle, but denied that a drug deal occurred.

The future drug deal.

Before trial, Lowry moved to exclude evidence that the police tried to set up a future deal. The State wished to introduce testimony about the reason the police did not immediately arrest Lowry, but allowed him to leave with the $3,000 from the deal. The court ruled their intent to set up another deal for the following week was relevant to their failure to arrest Low-ry immediately. Accordingly, Duke testified he did not stop Lowry because that was the first of two heroin purchases that the police attempted to make; the second was going to be for 60 grams of heroin. This was a “buy/walk,” where the police make a controlled purchase of narcotics and allow the individual to leave to further develop the investigation and possibly identify other co-conspirators. The jury heard that Lowry was not arrested the first night, but no other deal occurred; rather, he was arrested on 4 September 2003.

Tapes and transcripts.

Before trial, Lowry requested that, when the State presented any translation, they also play the taped conversations. At first, counsel did not admit the transcripts were accurate, but expressly did not object to them: “I am not ... stipulating that those transcripts are accurate. What I am doing is not objecting to them presenting them to the jury, because I think — while I see things that I may think are a mistake ... I’m not gonna object to it.” The State offered to have the translator testify, but defense counsel specifically stated that was unnecessary. Counsel requested that the tapes be presented in addition to the transcripts. He clarified to the court he did not dispute their accuracy: “Actually, I’m gonna argue that they’re accurate, the way they’re written.”

Agent Duke testified about the monitored phone calls between the informant and Lowry. Agent Duke dialed the number, recorded the conversations, and created the tapes, that accurately depicted the calls. One of the taped voices was the informant’s. Lowry objected that the tapes were not relevant because the other voice was unknown, but the court admitted the tapes, subject to being “tied up” by other witnesses. The informant testified the other voice was Lowry’s. With that predicate, Lowry did not object to the tapes and twice stated he had no objection to the translations. The court announced its intention that, because both sides agreed the transcripts should go to the jury, the court would admit them into evidence; Lowry did not object. After the tapes were played for the jury, the informant testified about the conversations and the meaning of various phrases within them.

In his opening statement, defense counsel suggested that neither of the recorded voices was Lowry’s. On cross-examination, Lowry first avoided conceding his voice was on the tape, but remembered “some of what [the tapes] were talking about.” He conceded that the portion of the voicemail message heard on the tapes was his. He later admitted the voice “could have been” his and, later still, believed that it was his voice after all.

There was little discussion of any inaccuracies in the translations and transcripts and none concerning any inaudible portions. There was some confusion regarding whether the informant was the first or second voice in the second transcript. Lowry argued that, where one transcript said the name “Rene” had been used, he actually thought the tape had said “Danny.” Also, the transcript erroneously translated “after” to mean “if.”

One juror’s dismissal.

Santos testified that the grocery store where the deal occurred faced north. After the first day of testimony, one juror raised an issue heard outside the rest of the jury’s presence. She lived near the store and thought the officer said it faced south, which led her to distrust the officer. She said it would be difficult to put aside her independent knowledge and decide the case only on the testimony and said she could no longer be fair and impartial. The court noted that both sides previously agreed to challenge for cause. It discussed several cases concerning jurors’ independent knowledge and concluded it had a reasonable doubt about her ability to disregard her personal knowledge and follow the court’s instructions. Accordingly, over Lowry’s objection, the court dismissed the juror and seated the alternate juror in her place.

A Hispanic juror’s retention.

After the court decided to dismiss the previous juror, defense counsel moved to dismiss a Hispanic juror who, because he spoke Spanish, also had “independent knowledge”; Lowry said “the same argument” that applied to the previous juror applied to him. The court pointed out that Lowry asked the jury in his opening statement to use their knowledge of Spanish, but said it would caution the Hispanic juror not to share his own translation with the other jurors or use it in deliberation. The court had instructed the jury not to discuss the case and had no reason to believe the Hispanic juror violated that order. The court delivered the following instruction, which Lowry expressly approved: “You may not use your independent knowledge of Spanish to make your decision nor may you impart this knowledge to other jurors.”

Voir dire and Hispanic jurors.

During voir dire, nine potential jurors indicated they had at least some knowledge of Spanish. Lowry and the State agreed two should be excused for cause. Lowry peremptorily struck one, and the State peremptorily struck two. The State expressly did not object to three of these potential jurors. Lowry did not raise the issue of racial motivation and did not object to the panel.

The State’s closing argument and cross-examination of Lowry.

Agent Duke had arrested the informant, who received a departure sentence in return for furthering other drug investigations. Though he had faced a 25-year minimum mandatory sentence, he was sentenced to 12 years. In closing, Lowry argued that the informant had a motive to lie so that he could get out of prison earlier to see his child. In response, the State noted that, despite Lowry’s concern, the informant had already been sentenced, so the result of Lowry’s case did not affect him. The State later said “[bjecause he did set up this deal, he’s already been sentenced, and ... he was subpoenaed to testify under oath, to get on the stand and tell the truth.... That’s what he did yesterday, he told the truth of what happened.” Lowry did not object.

During Lowry’s cross-examination, the State asked where the transcript mentioned not wanting “the people to be waiting with that money.” The court sustained counsel’s objection that that was not what the transcript said. The State then asked the correct question — whether he said “I don’t want to be going around at— with that money.” When the State erroneously asked about “people” again, Lowry objected. After the State rested, Lowry moved for mistrial based on prosecutorial misconduct because the State “kept adding words that were not there” and tried to confuse Lowry. The State responded its paraphrasing was unintentional; it apologized when it said “you” rather than “I.” The court denied the motion for mistrial, concluding the jurors had the transcripts during cross-examination and could see what it actually said.

ANALYSIS

The “future drug deal. ”

The admission of evidence and the determination of its probative value is reviewed for an abuse of discretion. E.g., Huck v. State, 881 So.2d 1137, 1151 (Fla. 5th DCA 2004). Here, the police’s attempt to set up another drug deal was relevant to the timing of his arrest and was not introduced, as Lowry argues, as impermissible similar fact evidence. There is a fine line between explaining police activity and including incriminating and usually unessential details. Johnson v. State, 920 So.2d 1282, 1283-84 (Fla. 4th DCA 2006) (citing Harris v. State, 544 So.2d 322, 324 (Fla. 4th DCA 1989)). The officers, by limiting their testimony to the fact they were attempting to set up another deal, provided a complete picture of the transaction in this case by explaining why Lowry was allowed to walk. Id. at 1284 (holding that implying Johnson was involved in other similar crimes was not necessary to explain logical series of events). Even if we believed this testimony was erroneously admitted, we would conclude, like Johnson, that the error was harmless beyond a reasonable doubt. Id. The jury repeatedly heard all testifying parties state that the second deal never occurred and, contrary to Lowry’s claim that the State argued he had to be guilty because there was a 60-gram agreement between the informant and Lowry, the State’s focus remained on the single deal for which Lowry was charged and convicted. We are not persuaded by Lowry’s arguments that the court, in admitting this testimony, offered the prosecutor “carte blanche to misrepresent evidence,” that the evidence was “fictional evidence,” or that the questioning on this issue constituted “flagrant and pervasive” “prosecutorial misconduct.” Lowry failed to show on appeal how the court abused its discretion.

The tapes and translations.

Lowry argues on appeal that “considerable dispute” surrounded the transcripts, that the unintelligible portions of the tape were so substantial they deprived the audible portions of relevance, and that the tapes and transcripts were not properly authenticated. Lowry’s representations on this issue are misleading. Each claim is unsupported by the record and unpre-served for review.

As to the transcripts, Lowry repeatedly failed to object to their admission. Initially, he did not stipulate that they were accurate, but expressly did not object to their admission. Moreover, when the State asked whether it needed to procure the translator who provided the translations, Lowry averred that it was unnecessary. Later, he argued that he would say “that they’re accurate, the way they’re written.” On three occasions, he announced no objection to the transcripts being distributed to the jury or admitted into evidence. As to the tapes, Lowry expressly requested that they be played for the jury. Agent Duke and the informant testified about their creation and accurate depiction of the conversations. Lowry later reluctantly conceded that the voice was his while arguing his perception of the calls. Lowry’s sole objection to the tapes was on the basis of relevance, until the informant testified that the other voice was Lowry’s; then, he had no further objection. Further, despite Lowry’s misleading claim that there was “considerable dispute” about the transcripts’ accuracy, the record reveals that the only questions regarding their accuracy concerned whether the informant was male number one or male number two on one tape, whether the informant called Lowry “Rene” or “Danny” on one tape, and whether the translator incorrectly translated one preposition.

In summary, Lowry failed to object to the admission of the transcripts, and any error is unpreserved for review. See, e.g., Miller v. State, 934 So.2d 580, 581 (Fla. 3d DCA 2006). His arguments on appeal regarding the transcripts and tapes were not made at trial and, accordingly, were not preserved for appeal. See, e.g., Becraft v. State, 910 So.2d 413, 414 (Fla. 4th DCA 2005). We are not persuaded by Lowry’s assertion, without elaboration, that “fundamental error occurred and/or that his objections were sufficient to preserve the issue for appeal and the Trial Court abused its discretion in admitting the evidence.”

Dismissing a juror who expressed doubt about her impartiality, not dismissing a juror on the basis that knowing Spanish constitutes possessing independent knowledge of the case, and not holding sua sponte hearings on racial motivations where Lowry did not object.

Lowry raised three misleading, inconsistent, and groundless arguments dealing with jurors in this case. First, Lowry framed the dismissal of one juror as the erroneous exclusion of an African-American juror who distrusted police. Lowry wholly ignores the juror’s statement that she felt she could not be fair and impartial and might not be able to decide the case based solely on the evidence presented. The court did not abuse its discretion in dismissing the juror, whose expressions of doubt about her ability to decide the case impartially easily provided a reasonable doubt about her ability to decide the case solely on the evidence. See Wilson v. State, 608 So.2d 842, 843 (Fla. 3d DCA 1992); Graham v. State, 470 So.2d 97, 97-98 (Fla. 1st DCA 1985). Even if there was error, it was harmless because the juror was replaced by a duly selected alternate who was present for the entire proceedings, and we could conclude beyond a reasonable doubt that using the alternate did not affect the verdict. See Burgal v. State, 740 So.2d 82, 83-84 (Fla. 3d DCA 1999); Graham, 470 So.2d at 98.

Lowry’s next argument equates the dismissal of the partial juror with the court’s error in not dismissing a juror who spoke Spanish. The court did not abuse its discretion by failing to dismiss a juror who understood Spanish when there was no evidence that the juror could not be fair and impartial due to his “independent knowledge.” Any error would be harmless because we find beyond a reasonable doubt that retaining the juror did not affect the verdict. E.g., State v. DiGuilio, 491 So.2d 1129 (Fla.1986). At any rate, we do not accept Lowry’s suggestion, devoid of citation or reasoning, that any juror who speaks Spanish must be excluded from deciding any case in which the Spanish language was spoken.

But we do note that Lowry’s argument regarding the Spanish-speaking juror is wholly inconsistent with his next frivolous assertion — that the court abused its discretion by failing to sua sponte hold a Neil hearing when the State used two peremp-tories to strike jurors who may have been Hispanic. Arguably, the court should have conducted a Neil inquiry had Lowry objected to the State’s peremptory challenges. See, e.g., Whitby v. State, 933 So.2d 557, 563 (Fla. 3d DCA 2006). Even if he had challenged the strikes, Lowry’s Neil claim would have been unpreserved for appellate review because he did not renew (or make) his objection before the jury was sworn. See, e.g., Carratelli v. State, 915 So.2d 1256, 1259 (Fla. 4th DCA 2005) (citing Zack v. State, 911 So.2d 1190 (Fla.2005)). We are not persuaded by Lowry’s unsupported claim that “he sufficiently preserved this issue for appeal and/or that the error was ... fundamental.”

The State’s “mischaracterization” of the evidence in closing.

Lowry argues that the State’s closing comments about the informant’s lack of motive to lie was reversible error. However, “the prosecutor’s comments during closing were in direct response to argument made by the defense.” Pagan v. State, 830 So.2d 792, 809 (Fla.2002). Moreover, Lowry did not object to the State’s closing argument and cannot show the comments constituted fundamental error, i.e., “that [which] reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Anderson v. State, 841 So.2d 390, 403 (Fla.2003) (citations omitted).

Lowry also argued that he was entitled to a mistrial for the State’s misconduct during its cross-examination of Lowry, i.e., its erroneous references to “people,” or its use of “you” rather than “I,” when referring to the transcript. The trial court’s decision on a motion for mistrial will not be reversed absent an abuse of discretion. Id. “A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial.” Id. The trial court noted that the jury had the transcripts for review during the cross-examination and denied the motion. Even had Lowry’s motion been timely made, none of the State’s conduct during cross-examination can be said to vitiate the entire trial such that the court abused its discretion by denying Lowry’s motion. We are not persuaded that Lowry’s passionate discussion on appeal of inapposite cases in which defendants timely objected to prosecutorial comments sheds any light here.

Lowry’s motion for rehearing.

Lowry’s motion for rehearing simply repeats his frivolous arguments on appeal, levels unjustified abuse toward the prosecution, and reargues the merits of the court’s opinion in violation of Florida Rule of Appellate Procedure 9.330(a). See Amador v. Walker, 862 So.2d 729, 733 (Fla. 5th DCA 2003). When we issued a per curiam affirmance, citing various opinions, it should have been obvious that we disagreed with Lowry’s belief that “fundamental error” is merely anything he deems to be fundamentally erroneous. See id. Yet Lowry’s counsel filed a motion for rehearing that presented nothing new, save for counsel’s displeasure with our ruling and counsel’s concession she found it “difficult, if not impossible, ... to discern [our] reasoning.” We trust that this opinion reduces or eliminates counsel’s confusion. However, unfamiliarity with fundamental error doctrine and Florida Rule of Appellate Procedure 9.330(a) is not a sufficient basis for a motion for rehearing. See, e.g., Lawyers Title Ins. Corp. v. Reitzes, 631 So.2d 1100, 1100-01 (Fla. 4th DCA 1993).

AFFIRMED.

MONACO and EVANDER, JJ., concur.

      . Lowry conceded that people called him "Donny” and that the voice on the second tape said "Donny.”

      . The juror stated in voir dire that she did not think she could focus on the trial. Lowry and the State agreed to a for cause challenge, which the court denied.

      .Nevertheless, Lowry suggested in closing argument that jurors who knew Spanish should listen carefully to the tapes.

      . State v. Neil, 457 So.2d 481 (Fla.1984).


author: CANADY, Judge.

text:
    Michael ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3965.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2007.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Michael Rogers appeals his conviction and sentence for lewd and lascivious battery. We affirm Rogers’ conviction without comment, and we affirm his sentence for the reasons we explain.

I. Background

Rogers was charged with lewd and lascivious battery on a child under sixteen, a felony of the second degree, see § 800.04(4)(a), Fla. Stat. (2003), subject to a statutory maximum prison sentence of 15 years, see § 775.082(3)(c), Fla. Stat (2003). The information alleged that Rogers had the “victim place her hand and then her mouth on his penis.” The jury convicted Rogers as charged. The jury’s verdict contained a specific finding that there was “sexual penetration.” Rogers’ Criminal Punishment Code scoresheet reflected 80 victim injury points for penetration. The lowest permissible prison sentence shown on the scoresheet was 94.6 months. The trial court sentenced Rogers to that minimum prison sentence followed by 5 years’ probation.

On appeal, Rogers argues that because the information did not allege penetration, the trial court erred in including the issue of penetration on the verdict form and in scoring 80 penetration points on the sentencing scoresheet. In support of his argument, Rogers relies on this court’s decision in Whalen v. State, 895 So.2d 1222 (Fla. 2d DCA2005).

The State responds that Rogers did not file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The State also claims that the trial court’s failure to have the jury decide the penetration issue would have violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The State does not address the merits of Rogers’ claim that the omission of an allegation of penetration in the information precluded the assessment of points for penetration on the sentencing score-sheet.

II. Analysis

In our analysis, we first explain our conclusion that the issue raised by Rogers was not adequately preserved. We also present the conclusion that even if the asserted error had been preserved, Rogers’ reliance on Whalen is misplaced.

A. Preservation

We conclude that the issue raised by Rogers concerning the penetration points was not adequately preserved under the requirements of Florida Rule of Appellate Procedure 9.140(e). At trial, the State argued that the verdict form should include a question regarding penetration but defense counsel argued that because the information did not allege penetration, such a question should not be included on the verdict form. In the sentencing proceedings, however, the defense offered no objection to the assessment of the points for sexual penetration. Rule 9.140(e) provides that a claim of “sentencing error” may be raised on appeal only if the “alleged error” was “first ... brought to the attention” of the sentencing court either “at the time of sentencing” or by way of a Florida Rule of Criminal Procedure 3.800(b) motion. Here, the objection to the verdict form was not an objection raised “at the time of sentencing” and Rogers filed no 3.800(b) motion.

B. The Assessment of Victim Injury Points

In considering the merits of Rogers’ claim, we begin with a general discussion of the basis for the assessment of victim injury points and the principle that points may be assessed for victim injury that is not an element of the crime charged. From that principle, we turn to a discussion of the constitutional requirement that a charging instrument allege all the elements of the crime charged. We then consider the implications that Apprendi and its progeny have for determining what constitutes an element of an offense which must be alleged in the charging instrument. We explain our reading of Whalen in light of the reasoning of Apprendi and its progeny. Finally, we conclude that penetration was not an element or the functional equivalent of an element of the offense charged against Rogers and accordingly was not required to be alleged in the information.

1. The Basis for Victim Injury Points

Section 921.0021(7), Florida Statutes (2003), provides the definition of victim injury that governs the assessment of victim injury points on Criminal Punishment Code scoresheets. See also Fla. R.Crim. P. 3.704(d)(9). The statute sets forth the basic definition of victim injury as “the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.” § 921.0021(7)(a) (emphasis added).

The statute contains additional provisions with respect to offenses “involving sexual contact.” § 921.0021(7)(b). In pertinent part, the statute provides that where “the conviction is for an offense involving sexual contact that includes sexual penetration, the sexual penetration must be scored in accordance with the sentence points provided under s. 921.0024 for sexual penetration, regardless of whether there is evidence of any physical injury.” § 921.0021(7)(b)(l) (emphasis added). (The Criminal Punishment Code worksheet set forth in section 921.0024(l)(a) provides 80 sentence points for sexual penetration.)

Under these statutory provisions, the assessment of penetration points is not limited to circumstances where penetration was an element specifically charged in the information. An offense can be one “involving sexual contact that includes sexual penetration” regardless of whether penetration was an element of the offense alleged in the information. § 921.0021(7)(b)(1).

The specific provisions of the statute relating to offenses “involving sexual contact that includes sexual penetration” must be read in the context of the basic definitional provision which permits the assessment of points for victim injury suffered “as a direct result” of an offense for which the defendant is convicted. The use of the words “involving” and “as a direct result” in the pertinent statutory provisions indicates that an injury or act of sexual penetration is a basis for the assessment of victim injury points whenever the injury or act of sexual penetration takes place in the course of or in connection with the commission of the offense for which the defendant is convicted. See Geary v. State, 675 So.2d 625, 626 (Fla. 2d DCA 1996) (recognizing that the assessment of victim injury points depends on “whether the victim’s injury was a direct result of the defendant’s crimes”).

This reading of the statute is supported by the history of the assessment of victim injury points under the sentencing guidelines. The 1985 version of Florida Rule of Criminal Procedure 3.701(d)(7) provided that “[vjictim injury shall be scored if it is an element of any offenses at conviction.” See The Fla. Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824, 826 (Fla.1984). Subsequently, that provision was amended and the 1988 version of rule 3.701(d)(7) provided that “[v]ictim injury shall be scored for each victim physically injured during a criminal episode or transaction.” See Fla. Rules of Criminal Procedure Re Sentencing Guidelines (Rules 3.701 & 3.988), 509 So.2d 1088, 1089 (Fla.1987). In approving this change, the court observed: “We see merit in scoring physical injury if a defendant physically injures the victim of the offense during the course of a criminal episode, regardless of whether the injury is an element of the crime.” Id. The requirement that victim injury be an element of the offense was thus removed. Although various refinements of the provisions governing the assessment of victim injury points have been adopted over the course of time, none of those refinements has reintroduced — either explicitly or implicitly — the earlier requirement that the victim injury be an element of the crime.

2. The Required Content of an Information

An information “shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fla. R.Crim. P. 3.140(b). “The purpose of an information is to fairly apprise [the] defendant of the offense with which he is charged.” Leeman v. State, 357 So.2d 703, 705 (Fla.1978). “An information must allege each of the essential elements of a crime to be valid.” State v. Dye, 346 So.2d 538, 541 (Fla.1977). “[D]ue process prohibits a defendant from being convicted of a crime not charged in the information or indictment.” Crain v. State, 894 So.2d 59, 69 (Fla.2004).

The Sixth Amendment of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.” See also art. I, § 16(a), Fla. Const. (“In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation.... ”). The Sixth Amendment’s notice guarantee is— by virtue of the Fourteenth Amendment’s due process clause — applicable to state prosecutions. “No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948). This right of a defendant “to reasonable notice of a charge against him,” In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948), “contemplates that the accused be ... informed [of the nature and cause of the accusation] sufficiently in advance of trial or sentence to enable him to determine the nature of the plea to be entered and to prepare his defense if one is to be made,” id. at 279 n. 1, 68 S.Ct. 499 (Rutledge, J., concurring). “In order for an accusation of a crime (whether by indictment or some other form) to be proper under the common law, and thus proper under the codification of the common-law rights in the Fifth and Sixth Amendments, it must allege all elements of that crime.... ” Apprendi, 530 U.S. at 500, 120 S.Ct. 2348 (Thomas, J., concurring).

“[T]he legislature is vested” — subject to constitutional limitations discussed below — “with the authority to define the elements of a crime.” Chicone v. State, 684 So.2d 736, 741 (Fla.1996) Accordingly, the identification of the elements of a crime which must be charged in an information is at least initially a “question of legislative intent.” Id.

3. The Elements of an Offense Under Apprendi and Its Progeny

Considerable attention has been given to “the distinction the law has drawn between the elements of a crime and factors that influence a criminal sentence.” Harris v. United States, 536 U.S. 545, 549, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Since the Supreme Court decided Apprendi in 2000, the Court has repeatedly considered the implications of this distinction. See Cunningham v. California, — U.S. -, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely, 542 U.S. 296, 124 S.Ct. 2531; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Harris, 536 U.S. 545, 122 S.Ct. 2406. In these cases dealing with the Sixth Amendment’s jury trial guarantee, the “Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” Cunningham, 127 S.Ct. at 863-64.

Apprendi held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” 530 U.S. at 490, 120 S.Ct. 2348. The Apprendi Court recognized “that any fact extending the defendant’s sentence beyond the maximum authorized by the jury’s verdict would have been considered an element of an aggravated crime — and thus the domain of the jury — by those who framed the Bill of Rights.” Harris, 536 U.S. at 557, 122 S.Ct. 2406 (plurality opinion) (emphasis supplied); see also Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (plurality opinion) (“Put simply [under Apprendi ], if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact — no matter how the State labels it — constitutes an element, and must be found by a jury beyond a reasonable doubt.” (Emphasis supplied.))

The Apprendi Court thus distinguished between sentencing factors that do not require a jury finding and those facts which must be treated as an element of the crime:

The term [“sentencing factor”] appropriately describes a circumstance ... that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense. On the other hand, when the term “sentencing enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an “element” of the offense.

Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348.

“When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ ... and the judge exceeds his proper authority.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (quoting 1 J. Bishop, Criminal Procedure § 87, at 55 (2d ed. 1872)). Blakely, Booker, and Cunningham “hold that under a guidelines sentencing scheme which restricts judicial discretion in imposing sentences, the factors used to calculate the maximum guidelines sentence to which a defendant is exposed must be based either on (1) findings made by the jury, (2) facts admitted by the defendant, or (3) the defendant’s prior convictions.” Behl v. State, 898 So.2d 217, 221 (Fla. 2d DCA 2005).

Apprendi and its progeny have implications for the content of indictments and informations. Although it was not presented with a challenge to the charging instrument, the Court in Apprendi recognized these implications:

[We noted in Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) ] that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” The Fourteenth Amendment commands the same answer in this case involving a state statute.

530 U.S. at 476, 120 S.Ct. 2348 (emphasis added) (citation omitted); see also United States v. Cotton, 535 U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (stating that “[i]n federal prosecutions” facts which must be submitted to a jury under reasoning of Apprendi “must also be charged in the indictment”).

The conclusion that a fact should be treated as an element which must be found by the jury suggests that the same fact should be treated as an element to be alleged in the charging instrument in order to satisfy the notice guarantee of the Sixth Amendment. See United States v. Jackson, 327 F.3d 273, 285 (4th Cir.2003) (recognizing “symmetry between indictment and fact finding” and stating that “[i]t is no doubt true, as a general principle, that the Fifth Amendment right to be charged by an indictment containing every element of the offense is no less demanding than the Sixth Amendment right to have every element of the offense found by the jury”). Conversely, the conclusion that a fact need not be treated as an •element required to be found by the jury suggests that the same fact need not be treated as an element that is required to be alleged in the charging instrument. See Harris, 536 U.S. at 568, 122 S.Ct. 2406 (stating that factor increasing a defendant’s minimum sentence “need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt”).

The symmetry between charging and fact finding suggested by Apprendi has not been universally embraced. Some courts have concluded that the notice guarantee of the Sixth Amendment may be satisfied with respect to a fact that is an element under Apprendi by means other than an allegation in the charging instrument. See, e.g., State v. Nichols, 201 Ariz. 234, 33 P.3d 1172, 1176 (Ariz.Ct.App.2001) (holding that facts related to commission of offense necessary to establish eligibility for enhanced penalty of life imprisonment “need not be alleged in the charging document provided that the notice of them given [to] the defendant comports with Arizona’s traditional notice requirements for alleging sentence enhancements”). But other courts have followed the line of reasoning suggested by Apprendi. See, e.g., State v. Simuel, 357 S.C. 378, 593 S.E.2d 178, 180 (S.C.Ct.App.2004) (holding that requirements of Apprendi were not met where facts on which sentence enhancement was based were not charged and submitted to the jury).

It remains true — and of salient significance for the instant case — that “not all facts affecting the defendant’s punishment are elements,” Harris, 536 U.S. at 549, 122 S.Ct. 2406, and therefore that not “every fact with a bearing on sentencing must be found by a jury,” Jones, 526 U.S. at 248, 119 S.Ct. 1215, or alleged in the charging instrument.

In a charging instrument, it is only necessary under the reasoning suggested by Apprendi that “the charged facts” make defendants “aware of the ‘heaviest punishment’ they face if convicted.” Harris, 536 U.S. at 562, 122 S.Ct. 2406 (quoting Bishop, Criminal Procedure § 85, at 54). In imposing sentences, judges may consider “uncharged ‘aggravating circumstances’ that, while increasing the defendant’s punishment, have not ‘swell[ed] the penalty above what the law has provided for the acts charged.’ ” Id. (alteration in original).

4. Whalen

The defendant relies on our decision in Whalen in support of his argument that sexual penetration points can be assessed only if penetration is alleged in the information. Whalen held that the assessment of sex penetration points which resulted in a sentence exceeding the statutory maximum was improper both because penetration was not alleged in the information and because the jury made no finding of penetration. 895 So.2d at 1225. We acknowledge that Whalen might be read to support the defendant’s position here. But Whalen contains no express holding that the factual basis for victim injury points must always be alleged in the charging instrument. And Whalen provides no direct explanation for its conclusion that an allegation of penetration was required in the information. We conclude that the decision in Whalen is properly viewed in fight of Apprendi’s suggested symmetry between the facts which must be alleged in the charging instrument and the facts which must be found by the jury. Accordingly, we reject Rogers’ contention that Whalen imposes an absolute requirement that penetration be alleged in the information in order for penetration points to be assessed against a defendant.

Whalen recognized that “but for the scoring of the penetration points, the trial court could not have imposed” the defendant’s sentences. Id. Based on this circumstance, the court concluded that Blakely “preclud[ed] the assessment of penetration points since the jury did not make specific findings of penetration.” Id. Although the point is not articulated, it is most reasonable to read Whalen’s conclusion concerning the insufficiency of the information as being based — like the insufficiency of the jury findings — on the circumstance that the sentences imposed on the defendant exceeded the otherwise applicable statutory maximum.

Whalen, 895 So.2d at 1224, made reference to Bryant v. State, 744 So.2d 1225 (Fla. 4th DCA 1999), which held that imposition of a 3-year mandatory minimum term under section 775.087(2), Florida Statutes (1997), for use of a firearm was improper because the information did not allege that the charged offense was committed with a firearm. By referring to Bryant, Whalen arguably suggests that the assessment of victim injury points is always analogous to the imposition of a minimum mandatory sentence under section 775.087(2). But we do not adopt that view of Whalen. The factors relevant to sentencing under various versions of section 775.087(2) have been treated as “essential elements.” Jackson v. State, 852 So.2d 941, 943 (Fla. 4th DCA 2003); see also Davis v. State, 884 So.2d 1058, 1060 (Fla. 2d DCA 2004) (“[Tjhe minimum terms mandated by the ’10-20-Life’ Statute, section 775.087(2), cannot be legally imposed unless the statutory elements are precisely charged in the information.”). The analogy between Whalen and Bryant consists in the circumstance that both cases involved a sentencing factor that was required to be treated as an element. The factor at issue in Bryant is always required to be treated as an element. The factor at issue in Whalen is required to be treated as an element when it results in a sentence exceeding the statutory maximum.

5. The Present Case

Here, the prison sentence imposed on Rogers — -less than 8 years — was within the statutory maximum of 15 years. Although the jury made a specific finding of penetration, such a finding by the jury was not constitutionally required under the reasoning of Apprendi and its progeny. Under the reasoning of those cases, penetration was not an element of or the functional equivalent of an element of the crime charged against Rogers. Penetration was a circumstance which supported the imposition of a sentence “within the range ” applicable to the charged crime and “authorized by the jury finding” that the defendant was guilty of the charged crime-even without a jury’s finding of penetration. Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348. Accordingly, penetration was neither required to be found by the jury nor required to be alleged in the information.

This case is controlled by the rule that where the victim injury which is the basis for the assessment of sentencing points is not an element — or the functional equivalent of an element — of the offense and thus not part of the essential facts constituting the offense charged, the victim injury need not be alleged in the information. But see Delgado v. State, 948 So.2d 883, 884 (Fla. 3d DCA 2007) (holding that assessment of victim injury points was improper because the information did not allege the factual basis for the victim injury points).

This view is supported by the decision in Ladd v. State, 715 So.2d 1012 (Fla. 1st DCA 1998), where the court held that victim injury points for penetration were properly assessed although penetration was not an element of the offenses for which the defendant was convicted. In Ladd, the convicted offenses were using a child in a sexual performance, promoting a sexual performance by a child, and attempted possession of a videotape depicting a sexual performance by a child. Id. at 1013. A videotape showed the defendant and the child — his girlfriend — “engaged in sexual intercourse involving actual sexual penetration.” Id. at 1016.

The Ladd court reasoned that because the offense of using a child in a sexual performance and promoting a sexual performance by a child could involve sexual intercourse, “it is clear that sexual penetration (and, thus, victim injury) can be a direct result of [those] offense[s].” Id. Accordingly, the court upheld the trial court’s assessment of points for penetration even though the information had not alleged penetration.

III. Conclusion

Rogers’ judgment and sentence are affirmed.

CASANUEVA and SILBERMAN, JJ., Concur.

      . The Fifth Amendment's grand jury guarantee does not apply to the States. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884).

      . To the extent that the reasoning of Apprendi is applied in determining what a charging document must allege, the Apprendi exception for the defendant’s prior convictions must also be kept in view.

      . To the extent that the Florida case law requires that the factual basis for imposition of a mandatory minimum term under section 775.087(2) always be charged and found by the jury, it reflects a judicial conclusion that the legislature intended the factors requiring imposition of a mandatory minimum under section 775.087(2) to be essential elements.

      . Under the Criminal Punishment Code, Rogers' sentence could only exceed the statutory maximum — and would be required to exceed the statutory maximum absent a downward departure — if his scoresheet reflected a "lowest permissible sentence ... exceeding] the statutory maximum sentence.” § 921.0024(2), Fla. Stat. (2003).

      . In McMillan v. State, 896 So.2d 873 (Fla. 2d DCA 2005), we distinguished Ladd. The defendant in McMillan "was shown to have directed the videotaping of a sexual performance involving a sixteen-year-old girl engaging in sexual acts with another individual.” 896 So.2d at 874. We accepted the defendant's argument that Ladd was "distinguishable because in that case the defendant himself engaged in sexual intercourse with the minor child.” Id. We therefore concluded that because the defendant in McMillan had not himself engaged in intercourse with the child, "the physical injury suffered by the child was not a direct result of the offense." Id. at 875.


text:
    Virginia L. McCULLERS, Appellant, v. Edward M. McCULLERS, Appellee.
    No. 2D05-2659.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2007.
    Harold S. Eskin of Harold S. Eskin, P.A., Cape Coral, for Appellant.
    Kinley I. Engvalson of Roberts & Engvalson, P.A., Fort Myers, for Appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); DeJesus v. DeJesus, 32 Fla. L. Weekly D1702, — So.2d -, 2007 WL 2010995 (Fla. 2d DCA July 13, 2007).

SALCINES, SILBERMAN, and VILLANTI, JJ., Concur.


author: BROWNING, C.J.

text:
    Jose PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2487.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2007.

      Jose Perez, pro se.
    Bill McCollum, Attorney General, and Sherry Anita Toothman, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

We write to again clarify the application of section 57.085, Florida Statutes. After Appellant’s conditional release was revoked, his expiration of sentence date was extended by the amount of time he had served on conditional release. He exhausted his administrative remedies, then filed a petition for writ of mandamus, seeking relief. Upon that filing, the clerk of court directed Appellant either to pay the filing fee or to file an affidavit of indigence, citing section 57.085, Florida Statutes. Appellant argued that section 57.085 did not apply. Nonetheless, Appellant’s petition was dismissed for failure to pay the fee or provide the affidavit; the order cited section 57.085 as authority. Appellant filed this appeal. Thereafter, the clerk of the trial court again asked Appellant either to pay a filing fee, or to file information for an affidavit of indigence. Appellant did file such an affidavit, but the trial court nonetheless placed a lien on his account, again citing section 57.085.

We affirm the dismissal of the mandamus petition because Appellant did not file an affidavit of indigency. Although the trial court never informed him of the applicability of section 57.081, Florida Statutes, which does require such an affidavit, Appellant was nonetheless subject to section 57.081’s requirements. Because Appellant did not meet those requirements, dismissal was proper.

It appears no original lien was imposed on Appellant for the filing fee; in any event, this Court could not grant relief as to such a lien because Appellant has not preserved any challenge to such a lien. See Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007). However, Appellant is entitled to relief from the appellate lien. Appellant’s petition challenged his gain-time calculations and so began a collateral criminal proceeding. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). Indigency determinations in collateral criminal proceedings are to be made under section 57.081. See Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006). Section 57.081 does not contain language authorizing imposition of a lien. See Cason v. Crosby, 892 So.2d 586 (Fla. 1st DCA 2005).

Accordingly, we AFFIRM the dismissal of the mandamus petition, REVERSE the imposition of the appellate lien, and REMAND with directions that the circuit court order the Department of Corrections to dissolve the lien and effect reimbursement of any monies already removed from Appellant’s account for payment of the lien.

BARFIELD and ROBERTS, JJ., concur.


text:
    Ervin ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5063.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2007.
    Nancy Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s finding that appellant violated probation and the judgment and sentence imposed thereafter, but the cause is remanded with directions to enter a corrected order revoking probation which conforms to the court’s oral pronouncements. See Maddox v. State, 619 So.2d 473, 473 (Fla. 1st DCA 1993) (holding that a trial court’s order revoking supervision must conform to its oral pronouncements).

The amended affidavit of violation of probation charged that appellant violated nine conditions of probation. At the violation of probation hearing, the state presented evidence concerning only one violation of probation: appellant’s failure to live and remain at liberty without violating any law as evidenced by his arrest for habitual driving while license suspended or revoked (condition 5). At the revocation hearing, the trial court found that appellant willfully' and substantially violated condition 5 of his probation; however, the order revoking probation stated that the trial court “found [appellant] in willful violation of his probation,” but did not state which specific condition of probation had been violated. Accordingly, the revocation of appellant’s probation is affirmed, but the cause is remanded with directions to enter a corrected order conforming to the trial court’s oral pronouncements that appellant violated condition 5 of the order of probation.

AFFIRMED, but REMANDED with directions to enter corrected order.

BARFIELD, DAVIS, and LEWIS, JJ„ concur.


author: PER CURIAM. BROWNING, C.J.,

text:
    D.S., the child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0148.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2007.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

BARFIELD and ROBERTS, JJ., concur.

BROWNING, C.J., concurs by separate opinion.

BROWNING, C.J.,

concurring opinion.

I concur in the result, as it is based on binding precedent. However, I think the precedent that sanctions a minor’s waiver of his or her Miranda rights without the consent of the minor’s parents, legal guardian, or attorney is simply bad law and should be changed. It is a paradox to me that minors, who are unable to legally contract in the State of Florida, except in very limited situations, are authorized to waive their Miranda rights. I think the law should be changed to provide that a minor may not waive Miranda rights unless the minor’s attorney, a parent, or a legal guardian consents to the waiver. The law should not sanction a situation, such as here, where a minor is questioned in the presence of his parent and denies committing the crime he was convicted of, but is later removed from the public school system, without either of his parents’ knowledge, and is taken to the police station, where he purportedly waives his Miranda rights under questioning without the minor’s parent’s, attorney’s, or legal guardian’s consent and confesses to the crime. The law should not sanction such a waiver, for all of the reasons society limits a minor’s right to contract, drive, drink, serve in the military, etc. Accordingly, I concur with the majority opinion as a distasteful duty.


text:
    Robert Lee WILLIAMS, Appellant, v. STATE of Florida, Barbara Young, Appellees.
    No. 1D07-2190.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2007.

      Robert Lee Williams, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 20, 2007, the Court has determined that it lacks jurisdiction to review the orders on appeal. Accordingly the appeal is hereby dismissed for lack of jurisdiction.

ALLEN, WOLF, and LEWIS, JJ., concur.


text:
    Jimmy ALVAREZ, as Property Appraiser for Bradford County, Florida; Teila N. Pearson as Tax Collector for Bradford County, Florida; and James A. Zingale, as Executive Director of the Florida Department of Revenue, Petitioners, v. WHISPERING OAKS HOUSING PARTNERS, II, LTD., Respondent.
    No. 1D07-2238.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2007.
    Larry E. Levy of the Levy Firm, Tallahassee; and Bill McCollum, Attorney General, and Mark T. Aliff, Assistant Attorney General, Tallahassee, for Petitioners.
    James M. Spoonhour of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, for Respondent.
   PER CURIAM.

■Whispering Oaks Housing Partners, respondent herein, challenged the assessment of its real property by filing a petition with the value adjustment board (VAB) on September 5, 2006. On October 9, 2006, the VAB conducted a hearing and orally announced denial of the petition. Four days later, petitioner Alvarez, the property appraiser for Bradford County, certified the tax roll. The VAB issued its written order regarding 'Whispering Oaks’ petition on October 27, 2006, and respondent filed its complaint in circuit court on December 21, 2006. Alvarez moved to dismiss the complaint as untimely under the provisions of section 194.171(2), Florida Statutes. The motion was denied and relief is sought from this court by petition for writ of prohibition. We have jurisdiction. Higgs v. Armada Key West Ltd., 903 So.2d 303 (Fla. 3d DCA 2005); Suber v. Fultz, 889 So.2d 947 (Fla. 5th DCA 2004); Crapo v. City of Gainesville, 855 So.2d 203 (Fla. 1st DCA 2003); Page v. McMullan, 849 So.2d 15 (Fla. 1st DCA 2003).

We have considered the arguments of petitioner and respondent and can find no material distinction between the facts of this case and those in Wal-Mart Stores, Inc. v. Day, 742 So.2d 408 (Fla. 5th DCA 1999), rev. denied, 770 So.2d 163 (Fla.2000). We also agree with the reasoning and result in Wal-Mart v. Day and therefore grant the petition and remand to the circuit court with directions to dismiss the complaint of Whispering Oaks as untimely.

PETITION GRANTED.

KAHN and BENTON, JJ., concur; BROWNING, C.J., dissents with opinion.

BROWNING, C.J.,

dissents.

I dissent. It is illogical and contrary to the requirement that a litigant exhaust his or her administrative remedies before seeking a court remedy to construe the statute so that the time for filing a complaint in circuit court begins to run before the administrative challenge has concluded by issuance of a written order by the VAB. I would deny the petition for writ of prohibition and certify conflict with Wal-Mart Stores, Inc. v. Day, 742 So.2d 408 (Fla. 5th DCA 1999).


text:
    Cecil F. MULLINS, Appellant, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 1D07-2358.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2007.
    P. Michael Leahy of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, for Appellant.
    David W. Young, Senior Attorney, Florida Department of Agriculture and Consumer Services, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s orders of May 22, 2007, and June 1, 2007, the Court has determined that the order on appeal was rendered by filing with the clerk of the Department of Agriculture and Consumer Services on April 4, 2007. Therefore, the appellant’s notice of appeal, which was filed on May 7, 2007, failed to timely invoke the Court’s jurisdiction. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed as untimely.

WOLF, PADOVANO, and ROBERTS, JJ., concur.


author: KELLY, Judge.

text:
    James Lamars BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2118.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2007.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

James Lamars Brown appeals his convictions and sentences for armed trespassing and aggravated battery with a deadly weapon. We affirm Brown’s convictions without comment but strike certain costs imposed by the trial court.

The State concedes that the trial court erred in imposing $25 in costs of prosecution pursuant to section 938.27(1), Florida Statutes (2004), because the State failed to request or provide documentation to support the cost. See Ortiz v. State, 884 So.2d 77 (Fla. 2d DCA 2004). On remand, this cost may be reimposed if the statutory requirements are met. See Diaz v. State, 901 So.2d 310 (Fla. 2d DCA 2005). The State further concedes error in the $16.25 cost imposed pursuant to section 988.10, Florida Statutes (2004), which authorizes the imposition of additional costs in cases of certain crimes against minors, because the victim was not a minor. Finally, the trial court’s imposition of a $200 cost for the Local Government Criminal Justice Trust Fund pursuant to section 27.3455, Florida Statutes, was error because that statute was repealed, effective July 1, 2004, prior to the date Brown’s offenses were committed. See Ch. 03-402, § 153, at 2718, Laws of Fla.

Convictions affirmed; costs award stricken; remanded.

STRINGER and DAVIS, JJ., Concur.


author: STEVENSON, J.

text:
    David Paul EDMOND, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-926.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

David Paul Edmond was tried by jury and found guilty of trafficking in cocaine and use or possession of drug paraphernalia. In this appeal, -Edmond insists his convictions must be reversed as this was a constructive possession case, the premises where the drugs and paraphernalia were found was in the joint possession of several individuals, and there was no independent evidence demonstrating his knowledge of and ability to control the drugs and paraphernalia. We agree and reverse.

The Evidence

Police executed a search warrant on a home in St. Lucie County. The warrant authorized a search for cocaine, but did not name the defendant as an owner or occupant at the home, instead indicating the home was in the control of an unknown male. The home had two regular bedrooms and a make-shift third bedroom. When police entered, they found the home had little furniture and was cluttered, i.e., there were buckets and lawn furniture in the living room. Immediately upon entry, police found a juvenile female standing in the door to one of the bedrooms. As police proceeded into the house and towards the kitchen, they heard a noise coming from a utility room. To enter the utility room, it was necessary to take two steps down. Police found Edmond at the foot of those steps. Edmond was described as crouched down and kneeling. Police yelled “sheriffs office” and “get on the ground.” Edmond attempted to run toward an exterior door. Police restrained him and searched his person. At trial, one of the deputies testified he found $230 in Edmond’s right, rear pocket. In a deposition, the same deputy stated Edmond was barely dressed and he did not recall recovering anything from Edmond’s person.

Police secured the juvenile female and Edmond in the living room, read the warrant, and performed an inventory search. Police found narcotics in two locations. First, in a southwest bedroom, police found 1.2 grams of cocaine, $240, a Florida identification card and driver’s license bearing Edmond’s name, both of which were expired and listing an address other than that of the residence being searched, and a Sprint bill addressed to Edmond at the address of the home. There was no evidence regarding the furnishings or other contents of the room and no evidence establishing where the identification and bill were found in relation to the drugs and money.

Second, within one-half to one aim’s length of where Edmond had been crouched in the utility room, police found several holes in the block walls of the home. The holes were described as having been built into the home, possibly for air flow, by turning the concrete blocks. Inside these holes, police found an oven mitt and a sock. The oven mitt contained 80.8 grams of crack cocaine. The cocaine in the mitt was still wet when it was found. At trial, police testified crack is not water soluble and the only time it is found wet is after powder cocaine has been “cooked” to make crack. Powdered cocaine and baggies were found in the sock. Police also found four baggies containing crack and a digital scale in the utility room. As for the precise location of the baggies of crack and scale, police testified the scale was “in the exact area where the narcotics in the utility room were found” and the baggies of cocaine were in “[tjhe crawl space in the utility room.”

No evidence was presented regarding who owned or was renting the home. Three officers recalled that, during execution of the warrant, another man entered the home and was irate. One of the officers recalled the man asked police what they were doing in his house.

The Law of Constructive Possession

To establish constructive possession, the State must prove (1) that the defendant had “dominion and control over the contraband” and (2) that the defendant had “knowledge the contraband was within his presence.” Lee v. State, 835 So.2d 1177, 1178 (Fla. 4th DCA 2002). The defendant’s knowledge of the presence of the drugs will be inferred if the premises where the drugs are found are in the exclusive possession of the defendant. Id. at 1179 (citing Brown v. State, 428 So.2d 250, 252 (Fla.1988)). Where, however, the premises are in the defendant’s and another’s joint possession, knowledge of the contraband’s presence and the defendant’s ability to control the same will, not be inferred and must be established by independent evidence. See Mitchell v. State, 958 So.2d 496 (Fla. 4th DCA 2007); Wagner v. State, 950 So.2d 511, 513 (Fla. 2d DCA 2007). Such evidence “may consist of evidence that the defendant had actual knowledge of the presence of the contraband or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer the defendant’s knowledge.” Id. at 513. And, in cases involving joint possession of the premises, the knowledge component can be established by the finding of the contraband in plain view in a common area of the premises. See Mitchell, 958 So.2d at 500. “ ‘Proof of mere proximity of the defendant to the drugs is insufficient to sustain a conviction for constructive possession.’” J.S.M. v. State, 944 So.2d 1143, 1145 (Fla. 2d DCA 2006) (quoting Davis v. State, 761 So.2d 1154, 1158 (Fla. 2d DCA 2000)).

Application of the Law to the Evidence in this Case

This is a case of joint possession, i.e., a bill addressed to Edmond and identification belonging to Edmond were found in a bedroom, a juvenile female was found in a bedroom, and there was evidence that another man claimed the house was his. Consequently, Edmond’s knowledge of the drugs and paraphernalia and his ability to control the same could not be inferred, but had to be established by independent evidence. The authority upholding a constructive possession conviction in the case of a defendant’s joint possession of the premises where the drugs or contraband were found in plain view and in a common area are of no help to the State here because there was no evidence that the drugs and contraband were found in plain view in a common area. The drugs and paraphernalia found in the utility room were hidden in a cubby hole or crawl space. While cocaine was also found in the bedroom, the testimony failed to establish it was found in plain view.

The State, then, needed something else to tie or link Edmond to the drugs and paraphernalia and establish his knowledge of the items and ability to control the same. And, because this was a circumstantial evidence case, the State was required to present evidence establishing not only every element of the crime, including Edmond’s knowledge of and ability to control the drugs, but also evidence inconsistent with Edmond’s reasonable hypothesis of innocence, i.e., that he had no knowledge of the contraband and it belonged to another. See Gibson v. State, 940 So.2d 1263, 1265 (Fla. 1st DCA 2006). The State failed to do so.

While Edmond’s identification and a bill were found in a bedroom where drugs and money were also found, there was no evidence as to where these items were found in relation to the drugs and money and no evidence that any other personal affects belonging to Edmond were in the room. And, at least two other people had access to the home. As for the drugs and paraphernalia in the utility room, the only evidence that could possibly suggest Edmond had knowledge of the drugs and contraband and the ability to control the same was the fact that the cocaine was wet, suggesting it had recently been cooked, and Edmond’s attempt to flee at the sight of police. In the end, though, we believe this evidence was insufficient. There was no testimony regarding how long cocaine stays wet after cooking from which a time-line could be established to demonstrate that the cocaine was so recently cooked and placed in the cubby hole that Edmond must have had knowledge of it. For instance, if cocaine stays wet for fifteen minutes after cooking, then this certainly is more suggestive of knowledge on Edmond’s part than if it stays wet for two days. This, then, leaves only Edmond’s flight, which is insufficient to prove constructive possession. See Agee v. State, 522 So.2d 1044, 1046 (Fla. 2d DCA 1988); see also Person v. State, 950 So.2d 1270, 1273 (Fla. 2d DCA 2007).

Having concluded that the evidence was insufficient to sustain Edmond’s convictions, we reverse the same. Our resolution of the sufficiency of the evidence issue in favor of Edmond renders his second point on appeal moot.

Reversed.

POLEN and TAYLOR, JJ., concur.

      . In 2002, the legislature eliminated knowledge of the illicit nature of the substance as an element of the offense. See Lee, 835 So.2d at 1178 n. 1.


text:
    Benjamin WOODSON-KENON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1718.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    Clayton R. Kaeiser, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See § 985.233(4)(a)2., Fla. Stat. (2001) (youthful offender sentence is discretionary); § 985.233(4)(a)4., Fla. Stat. (2001) (imposing adult sanctions instead of youthful offender sanction “is presumed appropriate, and the court is not required to set forth specific findings or enumerate the criteria in this subsection as any basis for its decision to impose adult sanctions”); see also Lee v. State, 679 So.2d 1158, 1160 (Fla.1996) (“[BJecause the judge possessed the discretion to refuse to classify [defendant] as a youthful offender even if he had considered section 958.04, his failure to consider the statute does not make the sentence 'illegal’ under our interpretation of that term.... Thus, a rule 3.800(a) motion is not proper here.”).

STONE, STEVENSON and MAY, JJ., concur.


text:
    Philmon MOWATT, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2721.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    Philmon Mowatt, Fort Lauderdale, pro se.
    No appearance required for appellee.
   PER CURIAM.

We reverse the June 11, 2007 circuit court order denying appellant’s motion to mitigate sentence pursuant to Florida Rule of Criminal Procedure 3.800(c), because the lower court does not have jurisdiction while appellant’s direct appeal is pending. See Daniels v. State, 712 So.2d 765 (Fla.1998); Lindsay v. State, 842 So.2d 1057 (Fla. 4th DCA 2003). We remand for the lower court to stay the proceedings until the direct appeal is resolved or to dismiss the motion without prejudice to appellant refiling his claim if he receives an adverse ruling on his direct appeal and the lower court regains jurisdiction.

We would also recommend removing the language from orders denying rule 3.800(c) motions which states that the defendant may appeal within 30 days. There is no right to appeal the denial of a rule 3.800(c) motion. Howard v. State, 914 So.2d 455 (Fla. 4th DCA 2005).

WARNER, STEVENSON and MAY, JJ., concur.


author: WARNER, J.

text:
    Herbert Lynn WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-517.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.

      Herbert Lynn Woods, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

Appellant, Herbert Woods, appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied his motion for failure to provide a jurat. Because the trial court did not give appellant reasonable notice of its denial, we reverse and remand for further proceedings.

Appellant was sentenced to fifteen years in state prison for being a felon in possession of a firearm. He timely filed a motion for postconviction relief. However, he did not swear to the contents of his motion. The lower tribunal ordered appellant to “file a supplement to the Motion for Post Conviction Relief to provide a jurat and properly swear to the motion.” No time period was specified in the order for filing the jurat, nor did the order alert him that the court would dismiss or deny the motion if the jurat was not forthcoming. Before appellant could file his supplement, the lower tribunal summarily denied his motion as facially insufficient for failure to include a proper oath.

We reverse. An order giving leave to amend, as the lower tribunal did in the instant case, does not serve as notice of denial or dismissal in the event that the movant fails to amend. See, e.g., Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51, 54 (Fla. 3d DCA 1982). Should a court order a movant to amend his motion as having been facially insufficient without setting forth a time limit in which to amend, the court may not later summarily deny the amendment as untimely. Mendes v. State, 770 So.2d 202 (Fla. 4th DCA 2000). Facially insufficient motions should be denied without prejudice to refile a sufficient amended motion within an appropriate time period set forth in the order before dismissal or summary denial can be entertained. See id.; see also Brigham v. State, 950 So.2d 1274 (Fla. 2d DCA 2007).

In his motion for rehearing of the order of denial, appellant actually attached a ju-rat swearing to the contents of the motion. The state argues that this is insufficient because it was not attached to the motion. See § 92.525(2), Fla. Stat. Although the oath is in substantial conformity with the statute, on remand the trial court may require the appellant to file an amended motion with an oath or accept the jurat as filed.

Reversed and remanded.

FARMER and KLEIN, JJ., concur.