author: COHEN, J.

text:
    Kathleen GARRETT, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 5D07-1301.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2008.

      James S. Purdy, Public Defender, and Michael Olshefski, Assistant Public Defender, Daytona Beach, for Appel-lanVCross-Appellee.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee/Cross-Appellant.
   COHEN, J.

Kathleen Garrett appeals her conviction and sentence following a jury trial for the charge of child abuse. She challenges the sufficiency of the evidence and the accuracy of a jury instruction. We affirm.

The standard of review of a motion for judgment of acquittal is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the offense beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. Id.

Section 827.03(1), Florida Statutes (2004), provides in pertinent part:

“Child abuse” means:
(a) Intentional infliction of physical or mental injury upon a child;
(b) An intentional act that could reasonably be expected to result in physical of mental injury to a child;....
A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits' a felony of the third degree,

We conclude that sufficient evidence supported the jury’s guilty verdict. Ms. Garrett was employed by the Seminole County School Board as a special education teacher assigned to provide vocational instruction to autistic children. The trial testimony reflected that Ms. Garrett placed her body weight upon a child with enough force and for a long enough period of time until he turned blue from a lack of oxygen. The jury was entitled to find that her conduct exceeded the scope of appropriate discipline and constituted child abuse.

We also determine that the jury was properly instructed on the statutory elements of the offense. The trial judge supplemented the standard jury instruction, which does not provide a definition of physical injury, with an instruction that “[plhysical injury means asphyxiation, suffocation, or drowning.” Ms. Garrett argues that it was fundamental error for the court to use that definition borrowed from section 39.01(30)(a)(4)e., Florida Statutes (2004). We reject this contention. Section 39.01(30)(a)(4) should be read in pari materia with section 827.03(1) and is appropriately used by the courts to define excessive or abusive corporal discipline. Czapla v. State, 957 So.2d 676, 679 (Fla. 1st DCA 2007), review denied, 969 So.2d 1012 (Fla.2007); State v. McDonald, 785 So.2d 640, 645-46 (Fla. 2d DCA 2001).

It is the responsibility of the court to correctly and intelligently instruct the jury on the essential and material elements of the crime. Battle v. State, 911 So.2d 85, 88 (Fla.2005). The use of an inaccurate and less stringent definition of a material disputed element of the crime may constitute fundamental error when it reduces the State’s burden of proof. Gryphon v. State, 847 So.2d 589, 593 (Fla. 5th DCA 2003) (holding fundamental error occurred in prosecution for aggravated child abuse when instructions recited the unamended standard jury instruction on malice, instead of the more stringent standard adopted in State v. Gaylord, 356 So.2d 313 (Fla.1978)).

The abbreviated instruction may have simplified the jury’s duty to apply the facts to the law, but that does not necessarily equate with an inaccuracy that rises to the level of fundamental error as seen in Gryphon, 847 So.2d 589, and similar cases. The jury was also instructed that corporal discipline that does not result in harm to the child did not constitute criminal child abuse. Therefore, they had to conclude that the child suffered asphyxiation and physical injury as a result of Ms. Garrett’s actions to reach their verdict. If anything, this definition inured to her benefit by narrowing the conduct that potentially subjected her to prosecution. We find no error.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

      . Section 39.01(30)(4)e., Florida Statutes (2004), defines "harm” and specifies that "corporal discipline may be considered excessive or abusive when it results in any of the following or other similar injuries: ... e. Asphyxiation, suffocation, or drowning.” This section was renumbered effective July 1, 2006, to section 39.01(31)(4)e. Ch. 06-86, § 1, at 1283, Laws of Fla.

      . Accord Young v. State, 753 So.2d 725 (Fla. 1st DCA 2000).

      . See Caldwell v. State, 920 So.2d 727 (Fla. 5th DCA 2006) (concluding fundamental error occurred when wholly inaccurate instruction on carrying a concealed weapon by a convicted felon allowed jury to find defendant guilty without deciding whether a paring knife was a "concealed weapon”).

      . Whether this instruction, which effectively precluded a finding of guilt under section 827.03(l)(b), was appropriate is not before us for determination. See Czapla, 957 So.2d at 679.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ruben W. CAMERON, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE o/b/o Erica L. LEDFORD, Appellee.
    No. 1D07-5490.
    District Court of Appeal of Florida, First District.
    March 28, 2008.
    Carroll L. McCauley, III, Panama City, for Appellant.
    Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon appellee’s proper confession of error, this proceeding is hereby reversed and remanded for an evidentiary hearing on the child support issue.

REVERSED and REMANDED.

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


author: KAHN, J.

text:
    Melvin WOODARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2204.
    District Court of Appeal of Florida, First District.
    March 31, 2008.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

The issue in this case is whether section 90.404(2)(b), Florida Statutes (2006), allowed the admission of certain evidence by the trial court. Appellant Woodard stood charged with two counts of lewd or lascivious molestation. Because the ruling below strayed from our supreme court’s authoritative construction of the statute in question, we reverse and remand for a new trial.

The charges in this case alleged appellant’s commission of lewd or lascivious molestation against F.W. and St. R. F.W. testified that she was twelve years old in the spring of 2005 when, while sleeping in the living room of her aunt’s apartment, appellant, the aunt’s boyfriend, entered the room and touched her “butt ... with his private part.” According to F.W., appellant left the room, but returned shortly, and “started messing with [St. R.],” F.W.’s young cousin, placing his sex organ against St. R.’s partially exposed buttocks. St. R. also testified at trial, remembering only that appellant was her mother’s boyfriend. She recalled nothing about the incident in question. The State presented no further direct evidence as to the incident.

The prosecution did, however, introduce the testimony of Sh. R., then age 31. This witness testified that when she was twelve years old, in 1988, appellant committed a “sexual assault” upon her in her home. Sh. R. did not testify as to the details of that episode, merely responding in the affirmative when the assistant state attorney asked her whether the 1988 incident involved “some sexual activity by Mr. Melvin Woodard against you when you were 12 years of age[.]” Appellant had moved in limine to exclude this testimony, but the trial court denied the motion, finding that section 90.404(2)(b) did not require a showing of similar acts, “just that there are children involved and ... molestation.” This was error.

In McLean v. State, the Florida Supreme Court upheld the constitutionality of section 90.404(2)(b) “as a conduit for evidence that corroborates the victim’s testimony that the crime occurred rather than to prove the identity of the alleged perpetrator.” 934 So.2d 1248, 1251 (Fla.2006). The McLean court constrained its holding, however, by explaining the conditions under which similar crime evidence might be admitted in a child molestation case. The statute reads:

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

§ 90.404(2)(b)l., Fla. Stat. (2006).

The evidence proffered under the statute must satisfy the several requirements laid down by the McLean court. Initially, the trial court must determine that the evidence clearly and convincingly shows the defendant committed the prior act. McLean, 984 So.2d at 1262. The court must then “assess! ] whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice,” and must therefore determine whether the prior act is sufficiently similar to the charged act. Id. To guide this analysis, McLean mandates consideration of the following factors:

(1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances.... The trial courts .should also consider other factors unique to the case.

Id. Finally, the trial court must ensure the evidence will not “become a feature of the trial” or “confuse or mislead jurors.... ” Id. The required determination of similarity must be made on a case-specific basis. Id. at 1258.

Appellate courts have now had occasion to apply the rules set out in McLean to the type of evidence we examine here. See, e.g., Mendez v. State, 961 So.2d 1088, 1091 (Fla. 5th DCA 2007) (finding sex acts upon young male under defendant babysitter’s care sufficiently similar to same sex acts defendant committed upon male child at camp where he was counselor two or three years before, where defendant “was a counselor to each [victim] and had custodial authority over them at the time of the offenses”); Triplett v. State, 947 So.2d 702, 704 (Fla. 5th DCA 2007) (affirming conviction for molestation where State introduced evidence of prior acts that “shared numerous similarities with the charged offense,” that “did not become a feature of the trial,” and that prosecutor “barely mentioned in closing”). Similar fact evidence is not, however, always admissible in child molestation cases.

In Fiore v. State, the State alleged the defendant touched and, in one instance, penetrated the then-eight-year-old victim’s genitalia while she slept at his house on three separate occasions, all of which occurred about nine years before the trial. 967 So.2d 995, 996 (Fla. 5th DCA 2007). At trial, the State introduced the testimony of two alleged victims of collateral crimes, appellant’s wife, and one collateral victim’s mother, all of whom testified regarding the collateral crimes. Id. The first collateral victim, K.C., testified that, approximately two years before the trial, when she was eight or nine years old, appellant, who was in her home on a social visit, touched her private parts while she sat on the living room couch. Id. A second collateral victim, twenty-four-year-old K.D., testified that, eight years before the trial, she was visiting appellant’s home when he threw her onto a bed and had sexual intercourse with her. Id. at 996-97. The Fifth District held it was error to admit the witnesses’ testimony. Id. at 999. The court found “a significant lack of similarity between the charged offense and KD.’s allegations,” but noted that “the allegations relating to K.C. are more similar and, perhaps, admissible.” Id. The court reversed the convictions and remanded for a new trial, explaining:

“... the similar fact evidence became a central feature of the trial.... Greater emphasis was placed on the [collateral offenses] than was placed on the charged offense.... A majority of the testimony related to these collateral crimes. [The victim’s] testimony was sandwiched between the testimony of K.C. and K.D., and, in closing, the prosecutor continually addressed all three offenses.”

Id.

Similarly, in Cann v. State, the defendant was charged with sexual battery on a person younger than twelve and lewd or lascivious molestation, after his wife found him engaged in sexual intercourse with his seven-year-old granddaughter. 958 So.2d 545 (Fla. 4th DCA 2007). The Fourth District held that the trial court properly admitted the victim’s aunt’s testimony that, when she was the victim’s age, the defendant tried to have intercourse with her. Id. at 549. The court also held, though, that the trial court erred in admitting the aunt’s testimony about a dissimilar occasion when she was older, on which the defendant tried to untie her bathing suit and “grab[] her breasts,” but the court concluded the error was harmless, “as the crucial evidence of the similar sexual attack when the aunt was the same age as C.C. was admissible.” Id.

In Zerbe v. State, the defendant, a karate instructor, faced child abuse and lewd and lascivious molestation charges after an eleven-year-old student reported that the defendant accompanied her to urinate outside the studio and touched her genitals and, on another occasion, told her to go to the bathroom and pressed on her stomach. 944 So.2d 1189, 1191 (Fla. 4th DCA 2006). The State introduced the testimony at trial of a five-year-old student, who told her grandmother that the defendant had asked her to remove her pants and watched her as she disrobed. Id. at 1190-91. The Fourth District held the trial court committed reversible error in admitting evidence regarding the defendant’s collateral crime with respect to the five-year-old, identifying several fatal flaws in the testimony, including the fact that the State did not show, by clear and convincing evidence, that the defendant committed the alleged act upon the five-year-old, and the fact that “the acts were not sufficiently similar.” Id. at 1194. Although both alleged acts occurred at the defendant’s karate school, “the charged crime involved a touching while the collateral act involved the defendant’s observation of a young child partially undressed,” and “the events took place five-and-a-half months apart with the collateral act occurring subsequent to the charged crime.” Id.

The questioned evidence in the present case did not satisfy the requirements of McLean, or of the cases following and applying McLean. Sh. R. presented vague testimony regarding an incident that occurred some seventeen years before the charged crimes. She described the incident only as a “sexual assault.” The record reveals none of the analyses or findings required by McLean. In the absence of such findings, we note that the few details available about the collateral crime do not support a conclusion that the 1988 incident was sufficiently similar to the charged offenses. For better or worse, we know nothing about the 1988 incident, save the witness’s characterization of it as a “sexual assault.”

Having concluded that the proffered evidence was improperly admitted, we have also considered the impact of the evidence at the trial. The State had no evidence to corroborate F.W.’s testimony other than the collateral crime evidence elicited from Sh. R. Moreover, the prosecutor referred to the 1988 incident in both the opening statement and closing argument. We are unable to find that admission of this evidence was harmless error.

Based upon the foregoing,' we REVERSE appellant’s conviction and REMAND for a new trial.

WOLF and VAN NORTWICK, JJ., concur.


text:
    L.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4039.
    District Court of Appeal of Florida, First District.
    March 31, 2008.

      Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s order committing him to a moderate risk facility. Because the trial court erred when it failed to explain why its consideration of the evidence led it to reach a different conclusion than that recommended by the Department of Juvenile Justice (DJJ) and faded to reference the characteristics of a moderate risk facility vis-a-vis Appellant’s needs, we must reverse.

Appellant was arrested for burglary of a dwelling on February 27, 2007, and placed on home detention. Although Appellant absconded for 23 days in May 2007, the court again placed him on home detention upon his return home. Appellant pled guilty to trespassing in June 2007 and the DJJ completed a predisposition report, recommending that Appellant be placed on probation. Instead, the court placed Appellant in a moderate risk commitment facility following his disposition hearing. The court gave no reason for its deviation from the DJJ’s recommendation at the hearing, but stated in its written order that “[Appellant] has a history of not obeying the law or authority figures. This requires a more restrictive disposition for protecting the public.”

Section 985.433(7)(b), Florida Statutes (2006), permits the court to deviate from the DJJ’s recommendation, stating,

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record reasons that establish by preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.

When the trial court departs from DJJ’s recommendation, it “must not only state its reasons for disregarding the recommended restrictiveness level on the record, the reasons must also be supported by a preponderance of the evidence and must make reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child.” C.C.B. v. State, 828 So.2d 429, 431 (Fla. 1st DCA 2002) (citing A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999)).

Here, the court did not specifically explain why it departed from the DJJ’s recommendation upon its consideration of the identical facts which the DJJ considered when recommending probation for Appellant. This is reversible error. See E.S.B. v. State, 822 So.2d 579, 581 (Fla. 1st DCA 2002) (stating that the court may reweigh the same factors the DJJ used, but it must explain why such evidence led it to reach a different conclusion). Additionally, the court order did not reference the characteristics of a moderate risk commitment vis-a-vis Appellant’s needs. This is also reversible error. See A.C.N., 727 So.2d at 370 (holding that trial court must reference the characteristics of the restrictiveness level vis-a-vis the needs of the child). Accordingly, we reverse the trial court’s order and remand for a new disposition hearing. C.M.K. v. State, 855 So.2d 1234, 1236 (Fla. 1st DCA 2003).

REVERSED and REMANDED.

PADOVANÓ, LEWIS, and THOMAS, JJ., concur.


text:
    Michael SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-586.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2008.
    Michael Sanders, Clermont, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Render v. State, 802 So.2d 512 (Fla. 3d DCA 2001).

SAWAYA, ORFINGER and COHEN, JJ., concur.


text:
    Wali SALEEM, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3774.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2008.
    Wali Saleem, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Price v. State, 937 So.2d 702 (Fla. 5th DCA 2006), rev. granted, 950 So.2d 414 (Fla.2007); see also State v. Perkins, 977 So.2d 643 (Fla. 5th DCA 2008).

GRIFFIN, MONACO and LAWSON, JJ., concur.


text:
    James MEDLIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2986.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2008.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Brigid E. Collins, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Savage, 589 So.2d 1016 (Fla. 5th DCA 1991); see also Jones v. State, 964 So.2d 167 (Fla. 5th DCA 2007).

SAWAYA, MONACO and TORPY, JJ., concur.


text:
    Judy Kay TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1823.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2008.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Westerheide v. State, 831 So.2d 93 (Fla.2002).

SAWAYA, ORFINGER and LAWSON, JJ., concur.


author: SALCINES, Judge.

text:
    Shane JENNINGS, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D06-4050.
    District Court of Appeal of Florida, Second District.
    April 2, 2008.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant/Cross-Appellee.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee/Cross-Appellant.
   SALCINES, Judge.

Shane Jennings was found by a jury to be guilty of felony battery and was sentenced to five years’ imprisonment as a prison releasee reoffender. In the appeal of his conviction, Jennings claims the trial court erred when it denied his motion for new counsel. We find no merit in Jennings’ argument and affirm his conviction without further comment. However, we agree with Jennings’ assertion that he was improperly sentenced as a prison releasee reoffender (PRR) and reverse and remand for resentencing.

The State is required to establish by a preponderance of the evidence that a defendant qualifies for treatment as a PRR. § 775.082(9)(a)(3), Fla. Stat. (2005). At sentencing, Jennings and his attorney both challenged the State’s allegation that he met the requirements for PRR sentencing. In response, the prosecutor stated, “Your Honor, you’ve reviewed the PRR packet.” However, the referenced “PRR packet” is not contained in the record before this court. Further, no testimony or evidence was presented by any Department of Corrections representative to prove the date Jennings last was released from prison.

This issue was preserved for appeal through the filing of a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error. Jennings claimed the State failed to provide proof of the existence of the requisite prior conviction and the date he last was released from prison in order to demonstrate that he qualified for treatment as a PRR under the provisions of section 775.082(9).

In the order denying the rule 3.800(b)(2) motion, the trial court noted that in order to qualify for sentencing as a PRR a defendant must have committed the current offense within three years of being released from prison for a prior felony offense. It stated that Jennings last was released from prison on April 25, 2003, for a felony conviction in Hernando County and the present battery offense was committed on November 11, 2005. The trial court found that Jennings was qualified for a PRR sentence.

In support of the denial of Jennings’ motion, the trial court referenced “Exhibit C: DOC Custody Screen.” Attached to the order was a printout of Jennings’ “Inmate Population Information Detail” from the Florida Department of Corrections internet website. This printout indicated that on April 9, 2002, Jennings was sentenced for sale/manufacturing/delivery of cocaine and he was released from prison on April 25, 2003. The trial court did not reference any other documents in the record.

We hold that the Department of Corrections printout relied upon by the trial court without any other documentation admitted into evidence at the sentencing hearing was insufficient to support the PRR sentence. The record before this court does not demonstrate that the State proved by a preponderance of the evidence that Jennings qualified for sentencing as a prison releasee reoffender. Accordingly, we reverse the sentence and remand for resen-tencing.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and KELLY, JJ., Concur.

      . In its cross-appeal, the State argued the trial court abused its discretion when it denied the State's motion to suppress and motion in limine. The cross-appeal is rendered moot by our affirmance of Jennings' conviction.

      . We note that the supreme court recently held in Yisrael v. State, 33 Fla. L. Weekly S131, 132, - So.2d -, -, 2008 WL 450398 (Fla. Feb. 21, 2008), that "when the State provides a Crime and Time Report, and properly authenticates the report by attaching a signed and sealed release-date letter, the combined document is admissible as a public record” to establish a defendant's eligibility for an enhanced sentence. The record before this court does not contain a "Crime and Time Report” or release letter.

      . The statute defines “prison releasee reoffen-der” as any defendant who commits, or attempts to commit certain enumerated felonies including
      [a]ny felony that involves the use or threat of physical force or violence against an individual ... within 3 years after being released from a state correctional facility operated by the Department of Corrections ... following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.

      . http://www.dc.state.fl.us/activeinmates/ search.asp


author: FARMER, J.

text:
    Gerald TELFORT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2490.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

At the scene of a home burglary with some missing jewelry, investigators found a fingerprint. After defendant was charged with the crime, a fingerprint examiner testified at trial for the state that the print was defendant’s. Not being content to rest on his own skills in the art, in response to a question by the prosecution, the examiner testified thus:

Q: Based on your training and experience ... are you one hundred percent certain it matched the print of Mr. Telfort?
Defense: Objection to the percentage
Court: Rephrase your question.
Q: In your own words, what level of certainty?
A: There is no doubt that this is Mr. Telfort’s fingerprint. In latent fingerprints, our department has provisions that another examiner must also view your work to verify the identification is actually one and the same. This print has been compared by two other examiners identifying Mr. Telfort’s left index finger. [e.s.]

Rejecting defendant’s objection that the testimony constituted improper bolstering, the court allowed the testimony to stand.

On appeal, Telfort relies on Schwarz v. State, 695 So.2d 452 (Fla. 4th DCA 1997), where we held an expert may not testify that the expert formed the opinion by conferring with others in the same field. As we explained, the issue is not whether the expert could testify that other experts in his field agreed with the opinion, but rather whether the expert could testify that he had consulted other experts in his same field to reach the opinion. We also pointed to cases from other jurisdictions holding that experts cannot bolster their opinions with the opinions of other experts who do not testify. See C.S.I. Chem. Sales Inc. v. Mapco Gas Prod. Inc., 557 N.W.2d 528 (Iowa App.1996) (rule of evidence allowing expert to testify regarding facts and data reasonably relied upon by other experts in the field does not empower them to testify that other experts support their opinion); Kim v. Nazarian, 216 Ill.App.3d 818, 159 Ill.Dec. 758, 576 N.E.2d 427 (1991) (fact that a colleague agreed with an experts opinion is of dubious value and party unable to cross-examine the corroborative opinion will likely be prejudiced). We said: “[s]uch testimony improperly permits one expert to become a conduit for the opinion of another expert who is not subject to cross-examination.” Schwarz, 695 So.2d at 455 (citing Hutchinson v. Groskin, 927 F.2d 722 (2d Cir.1991)).

Schwarz was reviewed by the supreme court because of certified conflict. In Linn v. Fossum, 946 So.2d 1032 (Fla.2006), the court agreed with this Court:

‘We conclude that referring to consultations with other experts creates the danger of bolstering the credibility of the testifying expert’s opinion without providing the opposing party the ability to effectively cross-examine the expert as to the basis for the opinion. Allowing the expert to testify on direct examination that he or she relied on consultations with other experts creates ‘too much of a possibility of an inference being drawn that these experts agreed’ with the testifying expert. We therefore hold as a matter of law that under the Florida Evidence Code an expert is not permitted to testify on direct examination that the expert relied on consultations with colleagues or other experts in reaching his or her opinion.” [c.o.]

Linn, 946 So.2d at 1039. Accordingly it was error to allow the testimony over defendant’s objection.

Was the error prejudicial? Probably so, because without a confession in this case, the state would be hard pressed to make the error seem harmless. See Goodwin v. State, 751 So.2d 537 (Fla.1999) (focus of harmless error analysis is effect of error on trier of fact; question is whether it is reasonably possible error affected verdict). We thus turn to defendant’s claim that his confession was involuntary.

When defendant was arrested by police, he was in a home with a quantity of controlled substances and several other people. He was not then charged with possession of drugs. Later he was questioned about the burglary and the missing items. The interrogator raised the subject of defendant’s connection with the drugs. It sounded like this:

Q: [Y]ou told him that if he would cooperate and show you these houses, you might not file these charges?
A: I said that could happen, yes, sir.
Q: As is turned out, you did not file the drug charges, right?
A: I am a man of my word.
Q: You kept your word?
A: Yes.
Q: And your word was that you wouldn’t file the charges.
A: No sir. I said that there is a possibility that the charges couldn’t be filed.
Q: Okay. Little incentive?
A: Yes sir. To be honest with you, “little leverage” we call it.

The officer frankly admits he used “a little leverage” and that he “kept his word.”

Which obviously signifies his word was meant to leverage the confession. Defendant argued this made the confession involuntary. The judge disagreed, holding the confession admissible.

The evidence does not support the decision. As our supreme court has made clear:

“when a question arises as to the volun-tariness of a confession, the inquiry is whether the confession was ‘free and voluntary; that is (it) must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence’.” [e.s.]

Brewer v. State, 386 So.2d 232, 235 (Fla.1980) (citing Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 42 L.Ed. 568 (1897)). In E.C. v. State, 841 So.2d 604 (Fla. 4th DCA 2003), we faced a confession induced by implied promises of foregoing criminal charges. We said: “A confession or inculpatory statement is not freely and voluntarily given if it has been elicited by direct or implied promises, however slight.” 841 So.2d at 606.

By the officer’s own words the promise of not charging possession was — at the very least — implied. In E.C. an implied promise of leniency was sufficient to render a confession involuntary. The testimony of the officer places this confession well within an inducement by implied promise not to charge other crimes if the accused confesses. That is enough to establish involuntariness.

Reversed.

TAYLOR, J., and DAVIDSON, LISA, Associate Judge, concur.

      . See Merriam Webster's Unabridged Dictionary (CD-ROM edition) — [Entry term = word\ (8 a(l): PROMISE “I give you my word” "kept her word” "as good as his word” (2): the honor involved in the keeping of a promise "pledged himself on his word to be present”).


text:
    Charles WALTERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3644.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.
    Stephen M. Grogoza, Naples, for appellant.
    Bill McCollum, Attorney General, Tallahassee and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions but remand in order for the drug offender probation to be eliminated, as appellant was not convicted of a drug-related offense. Ellis v. State, 816 So.2d 759 (Fla. 4th DCA 2002).

KLEIN, TAYLOR, JJ„ and LAGOA, BARBARA, Associate Judge, concur.


author: STONE, J.

text:
    Brian David PROFITT, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-352.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.

      Carey Haughwout, Public Defender, and John Pauly, Jr., Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Profitt appeals his conviction of burglary of an occupied dwelling. We reverse for an abuse of discretion in failing to sustain a defense objection to an incorrect statement of law in the state’s closing argument.

Taking the facts in the light most favorable to the trier of fact, at approximately 11 a.m., Profitt was a passenger in a car with two other men. Clay Dowell, Pro-fitt’s co-defendant, was a passenger in the same car. The car stopped at a house where eleven-year-old A.P. was alone. A.P. heard either the knock on the door, or a ring of the doorbell, and went to a room that overlooks the driveway. Observing a stranger walk to the side of the house and to a car in the driveway, A.P. became alarmed and called her father. The father directed A.P. to write down the car’s license plate number. While on the phone with her father, A.P. heard the front door open and then heard footsteps inside the house. She screamed into the phone that somebody is in the house, causing the intruder to run away. She saw someone run from the house and enter the car as a passenger.

Shortly thereafter, A.P. and her father drove to a gas station where the police had stopped the suspects. The license plate of the car matched all but one of the characters that A.P. wrote down. Recognizing the car and the person she had seen, A.P. identified Profitt to the deputies. At trial, however, A.P. could not identify Profitt as the intruder.

Profitt claimed that he was not the intruder. His co-defendant, Dowell, testified for the state, recounting that Profitt had directed the car to A.P.’s residence and was the intruder.

In cross-examining Dowell, Profitt’s counsel attempted to impeach the witness by inquiring into his plea deal with the state to save himself from a potential life sentence. In closing, commenting on A.P.’s testimony, Profitt’s counsel argued that “[A.P.] did not identify Brian Profitt as being the person that did this.”

Subsequently, the prosecutor made his closing arguments, where, referring to A.P.’s “show-up” identification, he explicitly told the jury that “out of court identification under Florida law is considered to be a stronger identification then [sic] if she can’t do it now.” A defense objection to this assertion of law was overruled. The prosecutor again stated, “[t]hat — that’s what the case law in Florida says. The day of the crime identification” — at which point he was stopped by the court: “Mr. Regan, do not argue case law, please.” There were also other improper state arguments to some of which the trial court sustained objections and to some of which no objection was made.

It was patently a false statement of the law to advise the jury that “under Florida law” an out-of-court identification by a witness is “considered to be a stronger identification” than at a subsequent in-court identification. This incorrect statement of law was then given a stamp of approval by the trial court’s overruling the defense objection. The trial court, thus, abused its discretion in overruling the defense objection.

We recognize that a show-up identification is well recognized as admissible evidence, and certainly the strength and reliability of this evidence can be argued to the jury. But arguing reliability is a far cry from advising the jury outright that the law deems such evidence inherently more reliable than in-court identification or inability to make an in-court identification. Cf. Carroll v. Dodsworth, 565 So.2d 346, 348-49 (Fla. 1st DCA 1990) (finding that the trial court abused its discretion in allowing an objected-to voir dire question and that “[t]he damage was compounded by the trial court’s overruling of plaintiffs’ timely objection and allowing defense counsel to repeat his improper question”).

Applying State v. DiGuilio, 491 So.2d 1129 (Fla.1986), we cannot conclude that this prejudicial misstatement of law on the key identification, coupled with other improper comments in closing, was harmless. Therefore, we reverse and remand for a new trial.

WARNER and GROSS, JJ., concur.


text:
    Derick REED, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-735.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.
    Derick Reed, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the lower court’s order striking the appellant’s second motion for post-conviction relief as the court correctly understood it was without jurisdiction. See Washington v. State, 823 So.2d 248 (Fla. 4th DCA 2002). At the time of the filing of the motion, and at the time of the ruling, the appellant had a pending appeal in this court seeking reversal of an order denying his first rule 3.850 motion. Our affirmance is without prejudice to appellant’s right to refile the motion within thirty days after this court’s mandate issues in the pending appeal, case 4D07-3652, if necessary. See Charles v. State, 950 So.2d 486 (Fla. 4th DCA 2007).

WARNER, FARMER and STEVENSON, JJ., concur.


text:
    Andrew I. TARR, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-450.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.
    Carey Haughwout, Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Andrew Tarr appeals the denial of a rule 3.800(a) motion to correct an illegal sentence. His motion suggested that, when he received a split sentence following the revocation of his probation, he did not receive the proper credit for time previously served on probation, on community control, and while he was incarcerated. See Young v. State, 697 So.2d 75 (Fla.1997); Meader v. State, 665 So.2d 344 (Fla. 4th DCA 1995). He did not allege how much credit he received and how much additional credit he believed he was entitled to. In addition, he did not allege that the face of the court records demonstrate he is entitled to more credit or identify where this information could be found. Accordingly, we affirm the trial court’s order without prejudice for appellant to file a sufficient rule 3.800(a) motion, or a rule 3.850 motion in the time remaining under rule 3.850(b), if he did not receive the proper credit for time served. See Carridine v. State, 741 So.2d 616 (Fla. 4th DCA 1999).

FARMER, MAY and DAMOORGIAN, JJ., concur.


text:
    Lonnie MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1927.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.

      Carey Haughwout, Public Defender, Alan T. Lipson, Assistant Public Defender, West Palm Beach, and Lonnie Morgan, Belle Glade, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph Tringali, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. Robinson v. State, 373 So.2d 898 (Fla.1979).

POLEN, TAYLOR and MAY, JJ., concur.


text:
    Marcia L. GUSTAFSON, Appellant, v. Michael J. GUSTAFSON, Appellee.
    No. 4D07-2101.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.
    William T. Viergever and Julie R. Man-del of Sonneborn Rutter Cooney & Klin-gensmith, P.A., West Palm Beach, for appellant.
    James D. Tittle of J.D. Tittle, P.C., Hia-wassee, Georgia, for appellee.
   PER CURIAM.

Affirmed. See Rosen v. Rosen, 696 So.2d 697 (Fla.1997); Von Baillou v. Von Baillou, 959 So.2d 821 (Fla. 4th DCA 2007).

POLEN, GROSS and MAY, JJ., concur.


author: KLEIN, J.

text:
    OPEN MRI OF OKEECHOBEE, LLC, Andrew Gallant, Andrew T. Walker and Henry R. Zayas, Appellants, v. Peter ALDANA, Iqbal Ahmed and John Chang, Appellees.
    No. 4D07-3532.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.

      James A. Farrell, Temple Fett Kearns and Matthew R. Chait of Shutts & Bowen LLP, West Palm Beach, for appellants.
    George K. Brew of George K. Brew & Associates, Jacksonville, for appellees.
   KLEIN, J.

Plaintiff appellees, who each owned a minority interest in Open MRI, sued Open MRI and its manager members for wrongfully terminating their interests in Open MRI. Open MRI appeals an order denying its motion to compel arbitration. We affirm.

In their complaint plaintiffs alleged that they had been notified by Open MRI that their recent acquisition of an ownership interest in a competing company was contrary to their agreement, and that their interests in Open MRI were “being seized for an alleged material breach of the . operating agreement of Open MRI.” Plaintiffs further alleged that Open MRI wrongfully confiscated their interests and deprived them of their distributions.

The agreement provided for arbitration of “any disputes under this agreement, except those which pertained to Articles 10 or 11.” The trial court concluded that this dispute arose under Article 10, and Open MRI was accordingly not entitled to arbitration. Article 10 is entitled “Transfer of Interest/Non-Competition/Confidentiality.” Section 10.5 of Article 10 provides that no member, without prior written consent of the management, may participate in any manner in another MRI business which performs services in the territory.

It is obvious from the complaint that, but for Open MRI’s seizure of plaintiffs interests in Open MRI, based on the alleged breach of the non-compete provision found in Article 10, this dispute would not have arisen. The allegations of the complaint clearly “pertain to” the non-compete provisions of Article 10, and we accordingly conclude that the trial court was correct in holding that the claims were not arbitra-ble.

Affirmed.

HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Andre KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2225.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Scheele v. State, 953 So.2d 782 (Fla. 4th DCA 2007).

POLEN, GROSS and MAY, JJ., concur.


author: DAMOORGIAN, J.

text:
    Craig CORDARY, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-2277.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.
    Craig Cordary, Fort Pierce, pro se.
    Laurel Hopper, Department of Children and Family Services, Ft. Pierce, for appel-lee.
   DAMOORGIAN, J.

Craig Cordary appeals a disability hearing officer’s order finding that he was not disabled, and thus, not entitled to SSI-Related Medicaid benefits. We vacate the order finding that Cordary is not disabled because the order did not contain a detailed evaluation of the criteria and evidence of Cordary’s impairment, and the order did not specify what jobs were available to Cordary in the national economy.

A hearing officer’s determination as to disability will be upheld unless it is not supported by competent substantial evidence or is contrary to law. See Axilrod v. Fla. Dep’t. of Children and Family Servs., 799 So.2d 1103, 1108 (Fla. 4th DCA 2001). In his order denying disability benefits, an appeals hearing officer must specify the reasons for his decision, and identify the supporting evidence and regulations. See 42 C.F.R. § 431.244(e); see also Scordas v. Dept of Health and Rehab. Servs., 649 So.2d 894, 895 (Fla. 1st DCA 1995); Axilrod, 799 So.2d 1103. In this case, the officer did not, as required by law, discuss or analyze why she found that Cordarys impairments were not as severe as those listed in the Code, discuss the cumulative effect of Cordarys ailments, or identify which jobs in the economy Cor-dary could perform.

In answering whether Cordarys impairments were as severe as those listed in the Code (step three), the appeals hearing officer summarily concluded that the listings 9.00 Endocrine System and 11.00 Neurological were reviewed. The medical evidence does not support that the petitioner meets or equals the listings. In Axilrod, we found the hearing officer’s analysis inadequate where the order stated that the petitioner’s condition was not as severe as those listed in the code without explaining why. In vacating the order, we held that “absent a detailed evaluation of the criteria and the evidence, we cannot determine whether the appellant’s claim was properly evaluated.” 799 So.2d at 1110.

Similarly, the order here simply states that after comparing Cordary’s impairments to those listed, the hearing officer does not find them to be severe. This is precisely the analysis this Court found insufficient in Axilrod. See also Howson v. Fla. Dep’t. of Children and Families, 743 So.2d 564 (Fla. 5th DCA 1999) (reversing an order that identified listings in the appendix which were reviewed, but failed to refer to factual findings or evidence). Thus, the order here is deficient because it does not explain why the appellant’s impairments are not as severe as the ones listed in the Code.

The order is also deficient because it failed to make a specific finding as to the cumulative effect of Cordary’s separate ailments. See Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir.1987) (where multiple impairments are complained of “it is the duty of the ... [hearing officer] to make specific and well-articulated findings as to the effect of the combination of impairments and to decide whether the combined impairments cause the claimant to be disabled”); Edlin v. Dep’t of Health & Rehab. Servs., 633 So.2d 1185, 1188 (Fla. 1st DCA 1994).

Lastly, the order failed to identify or discuss what jobs were available to Cor-dary in the national economy (step five). See Axilrod, 799 So.2d at 1108 (once the petitioner is found to not be able to perform his former occupation the order must discuss or analyze what specific jobs the petitioner is able to perform in light of his condition); see also Howson, 743 So.2d at 567 (finding that petitioner is fit for sedentary work is insufficient without identification of specific jobs and a discussion or analysis as to how petitioner can perform those jobs). In this case, the hearing officer found that Cordary could not perform his former occupation, but did not identify any specific job Cordary could perform. Instead, the order stated that Cordary was able to perform “200 separate unskilled sedentary occupations.” Moreover, the hearing officer did not discuss or analyze how Cordary’s condition allowed him to perform those jobs. Consequently, the order was deficient on its face.

Because the order did not provide this Court with the necessary findings and analysis to determine that the appropriate legal principles were followed, we vacate the order and remand the case to DCF for further consideration of the evidence.

Vacated and Remanded For Further Proceedings Consistent with This Opinion.

KLEIN and HAZOURI, JJ„ concur.

      . 20 C.F.R. § 416.920 sets the following five-step analysis that a hearing officer must follow in order to determine disability:
      (1) Is the claimant presently unemployed?
      (2) Is the claimant’s impairment severe?
      (3) Does the claimant's impairment(s) meet or equal a listed impairment(s) set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1?
      (4) Is the claimant unable to perform his former occupation?
      (5) Is the claimant unable to perform any other work within the economy?


text:
    Zelda WILLIAMS, Appellant, v. Alex SINK, Chief Financial Officer State of Florida, Department of Financial Services, as Receiver of Caduseus Self Insurance Fund, Inc., Appellee.
    No. 1D07-5787.
    District Court of Appeal of Florida, First District.
    April 3, 2008.
    Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa; Donald M. Hinkle and Lisa Magill Foran of Hinkle & Foran, Tallahassee, for Appellant.
    Theodore R. Doran and Carolyn S. An-say of Doran, Wolfe, Ansay & Kundid, Daytona Beach; Eric Scott, Senior Attorney, Florida Department of Financial Services, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 18, 2007, the Court has determined that the Order Denying Objections of Zelda Williams to the Receiver’s Motion for Approval, entered by the lower tribunal on October 3, 2007, is not a final order. Accordingly, the appeal is hereby dismissed. In light of the dismissal, the appellant’s Unopposed Motion to Consolidate for All Purposes and Motion for Extension of Time to File Initial Brief, filed on December 12, 2007, is denied as moot.

PADOVANO, LEWIS, AND THOMAS, JJ., concur.


text:
    Alfred BENDER and Susan Bender, Appellants, v. Alex SINK, Chief Financial Officer State of Florida, Department of Financial Services, as Receiver of Caduseus Self Insurance Fund, Inc., Appellee.
    No. 1D07-5788.
    District Court of Appeal of Florida, First District.
    April 3, 2008.

      Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa; Mac A. Greco, Jr. of Mac A. Greco, Jr. P.A., Tampa, for Appellants.
    Theodore R. Doran and Carolyn S. An-say of Doran, Wolfe, Ansay & Kundid, Daytona Beach, Eric Scott, Senior Attorney, Florida Department of Financial Services, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellants’ response to the Court’s order of December 18, 2007, the Court has determined that the Order Denying Objections of Alfred and Susan Bender to the Receiver’s Motion for Approval, entered by the lower tribunal on October 3, 2007, is not á final order. Accordingly, the appeal is hereby dismissed. In light of the dismissal, the appellants’ Unopposed Motion to Consolidate for All Purposes and Motion for Extension of Time to File Initial Brief, filed on December 12, 2007, is denied as moot.

PADOYANO, LEWIS, and THOMAS, JJ., concur.


text:
    L.V. Mother of B. V., K. W., R.W. and C. W., Minor Children, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D08-0487.
    District Court of Appeal of Florida, First District.
    April 3, 2008.
    Catherine A. Healey, Office of Criminal Conflict and Civil- Regional Counsel, Tallahassee, for Appellant.
    Janet Schaffer, Tallahassee, for Appellee Department of Children and Families; Ama N. Appiah, Guardian ad Litem Program, Orlando.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 5, 2008, the Court has determined that the appellant has failed to demonstrate that the appeal was timely filed. Accordingly, the appeal is hereby dismissed. The appellant’s remedy, if any, is to seek relief in the lower tribunal by filing a petition for writ of habeas corpus. See In the Interest of E.H., 609 So.2d 1289 (Fla.1992).

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


text:
    Lorenzo BELTON, Appellant, v. ABC DISTRIBUTING, INC. and Chubb Group of Insurance Companies, Appellees.
    No. 1D08-0505.
    District Court of Appeal of Florida, First District.
    April 3, 2008.
    Catherine A. Riggins, Miami Gardens, for Appellant.

      Henry J. Hearns of Henry J. Hearns, P.A., Wellington, for Appellees.
   PER CURIAM.

An “Order Administratively Closing OJCC File and Dismissing Pending Petitions” was issued in this case on September 21, 2007. This order is unsigned and therefore was not properly rendered under Florida Rule of Appellate Procedure 9.020(h). See Perez v. City of Tampa, 191 So.2d 302 (Fla. 2d DCA 1966). The order also contains no indication that it was mailed to the parties and was not rendered under the provisions of Florida Rule of Appellate Procedure 9.180(b)(3). We therefore conclude that this order was not an appealable final order. Subsequently, the Judge of Compensation Claims issued an order which granted a motion to dismiss but this is also not a final order. See Mintz v. Broward Corr. Inst., 800 So.2d 343 (Fla. 1st DCA 2001). The instant appeal is therefore dismissed for lack of jurisdiction.

DISMISSED.

ADOVANO, LEWIS, and THOMAS, JJ., concur.


text:
    R. Casper ADAMSON, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D07-4566.
    District Court of Appeal of Florida, First District.
    April 3, 2008.
    R. Casper Adamson, pro se, Appellant.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellee’s concession of error, which we find to be correct, the order of dismissal issued by the circuit court is reversed and the cause is remanded to that court for further proceedings with regard to waiver of the filing fee and the merits of appellant’s claim if the filing fee is paid or waived.

PADOVANO, LEWIS, and THOMAS, JJ., concur.


author: SAWAYA, J.

text:
    Alvin B. OLESH, Appellant, v. Patricia GREENBERG, Appellee.
    No. 5D07-537.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2008.

      Alvin B. Olesh, Orlando, pro se.
    John R. Hamilton of Foley & Lardner LLP, Orlando, for Appellant.
    Mark P. Lang and Kasia Pabis of Mark Lang & Associates, Winter Park, for Ap-pellee.
   SAWAYA, J.

Alvin Olesh appeals the suinmary final judgment entered in favor of Patricia Greenberg on his three-count complaint seeking partition of residential real property, an accounting and imposition of a constructive trust, and damages for unjust enrichment. He argues that' the trial court: (1) abused its discretion in denying his motion for rehearing after the trial court granted Greenberg’s motion for summary judgment; (2) erred in dissolving the lis pendens; and (3) abused its discretion in refusing to allow him to amend his complaint. Each issue will be discussed in the order presented.

Factual and Procedural Background

Typical of so many cases we see today, this case involves domestic discord between two individuals, Alvin Olesh and Patricia Greenberg, who once had affection for one another. It is not necessary to chronicle the events that led to their current state of domestic affairs. Suffice it to say that they crossed that proverbial fine line between love and hate, and now animus permeates their relationship, which they seek to end. But first, they must settle their differences regarding property each claims to own to the exclusion of the other. Therefore, the focus of our discussion will be the property dispute, the procedural maneuvers instituted by each party to establish their claim to the property, and the legal morass Olesh found himself in due to the incompetent representation he received from his attorney.

Although Olesh and Greenberg were never married, they acquired a home, which was titled solely in Greenberg’s name. Olesh contends that because he believed that he and Greenberg had agreed to marry, he provided $70,000 for the down payment of the home and further provided a brokerage account for the couple’s use. In addition to the funds spent on the home, Olesh claims that he caused a substantial sum (apparently over $1 million) of his own money to be transferred into the brokerage account that was also titled solely in Greenberg’s name.

Olesh discovered that a large portion of the funds in the brokerage account had disappeared and, when confronted, Green-berg refused to discuss the situation or account for the funds. The two ended their relationship, mutual domestic violence injunctions were put into place, and the house was put up for sale. Olesh filed a notice of lis pendens against the real property, which allegedly hampered the sale thereof. He hired an attorney, who filed the three-count complaint on his behalf. The poor drafting of the complaint was a harbinger of the standard of representation the attorney was to afford Olesh.

After Greenberg filed her answer, her attorney sent Olesh interrogatories, a request for production, and several requests for admissions. Olesh’s attorney never filed a response to any of these requests and failed to answer the interrogatories. There were no attempts at discovery by Olesh’s attorney other than scheduling Greenberg’s deposition which was, for reasons unknown, subsequently cancelled. A year after the complaint was filed, Green-berg, with new counsel of her own, filed a motion for summary judgment with attachments, which included her affidavit, the deed, and the mortgage to the real property. In her motion, Greenberg alleged that she was the sole owner of the real property and that any funds she received from Olesh were a gift. Remarkably, Olesh’s attorney did not file an affidavit in opposition to the motion, nor was any other response to the motion filed. Greenberg also filed a motion to dissolve the lis pen-dens.

Olesh’s attorney did attend the hearing on the motion for summary judgment and the following excerpt from the presentation he made at the hearing, which appears after the argument presented by Green-berg’s attorney, is quite revealing of the level of incompetence displayed by Olesh’s attorney:

Thank you, Your Honor. My opponent is a very fine lawyer, a very good advocate for his client and certainly deserves to be congratulated for his hard work in this area. He spent a lot of time and probably killed quite a few trees in the process. I’m a simple lawyer, an environmentalist and perhaps even you might call me a tree hugger.
I don’t understand where he says that we have prepared nothing because I know that I met with my client and we dictated answers to these things. But the bottom line is that the documents that Mr. Lang is claiming, we don’t have anything because my client was not in the home and all this stuff was put in a storage locker that we still are negotiating about releasing all that property. And until we can get to that, we don’t have access to other than one box that was in my office that I went through with my client.
And while doing that, I discovered this stained envelope that was sealed. I’m the one that opened it and I faxed a copy of the contents of this letter to Mr. Lang earlier this week. And I believe that what this letter reflects should be sufficient at this point for the court to deny the motion for summary judgment in this situation. And Mr. Lang has a copy of this letter.

What is especially remarkable about this excerpt is the extraordinarily feeble attempt on the part of Olesh’s attorney to introduce into the record the letter whereby Greenberg actually acknowledged and agreed to Olesh’s interest in the real property. More importantly, instead of attempting to introduce a copy of the letter signed by both Olesh and Greenberg, Ol-esh’s attorney apparently attempted to introduce a copy of the letter that existed prior to Greenberg signing it. That letter, dated November 2002, provides that Olesh would be depositing his money into an account that Greenberg was to open at Chase Manhattan Bank with Olesh as power of attorney. The money was to be used for a home in Florida, and Olesh promised to make the down payment money available when Greenberg was ready to purchase a house. The letter concludes with the statement, “As we agreed, this money is not a gift but a contribution toward the purchase of a house. Furthermore you agree to put my name on the deed in Florida once you buy a house.” The letter contemplates that Olesh would transfer his brokerage account with over $1 million in it into Greenberg’s name “to give you the sense of security that you claim you need. I am also making this transfer because we are planning to get married and you stated unequivocally that you will transfer this account back to me whenever I ask you to do so. As I explained to you, this transferring of the account to your name is not a gift.” The letter is ■ purportedly signed by both Olesh and Greenberg.

In any event, Greenberg’s attorney denied ever receiving a copy of the letter and lodged an objection to its introduction, which was sustained by the trial court. Olesh’s attorney then requested an opportunity to amend the complaint, citing the fact that Greenberg had been given an opportunity to file an amended answer. The trial court denied this request and orally pronounced that summary-judgment in favor of Greenberg was proper. After the hearing, Olesh wisely retained another attorney, who filed a Motion for Reconsideration and Rehearing prior to the trial court’s rendition of the written judgment we -now review. Attached to the motion were the affidavit of Olesh, which denied the assertions by Greenberg in.her affidavit, and a copy of the above referenced letter containing the signatur.es of both Olesh and Greenberg. Without ruling on this motion, the trial court rendered the summary final judgment.

Olesh subsequently filed a Motion for Leave to File Amended Complaint on the grounds that his prior counsel had rendered ineffective assistance. The motion referenced prior counsel’s inept complaint and strange behavior during the summary judgment hearing and asserted that the complaint did not state the totality of the causes of action that Olesh had against Greenberg. .The motion pointed out that Greenberg had been allowed to amend her answer and affirmative defenses after she had obtained new counsel. Olesh also filed a Supplemental Affidavit in which he denied Greenberg’s allegation that he forged her signature on the letter. He states that he personally witnessed Greenberg sign the letter and explains that he had kept a copy of the letter prior to Greenberg’s signing of it and that copy was what his prior attorney had provided at the summary judgment hearing. The trial court subsequently denied the Motion for Reconsideration and Rehearing, and Olesh appeals.

Denial of the Motion for Reconsideration and Rehearing

Olesh agrees that at the time of the hearing, summary judgment was warranted because Greenberg’s affidavits and evidence did demonstrate a prima facie entitlement to summary judgment, and he failed to rebut that evidence so as to raise a material fact question. However, he asserts that under the circumstances of this case, the trial court abused its discretion in refusing to allow rehearing. His request for rehearing was timely, and his motion was accompanied by evidence clearly showing that a material question of fact existed that would preclude summary final judgment. Had Olesh’s affidavit regarding the circumstances of the letter agreement and the attached letter, complete with signatures of both parties, been filed prior to the hearing, then Greenberg’s motion would clearly have been denied, he points out. Specifically, Olesh contends that because every indication is that his prior attorney’s representation was so inadequate as to be almost nonexistent, Ol-esh should have been given some leeway when his new attorney came on board and demonstrated that there was indeed a material fact question in the case.

Olesh relies on the factually similar case of Fernandes v. Boisvert, 659 So.2d 412 (Fla. 2d DCA 1995). In Fernandes, the appellant’s attorney failed to file an affidavit in response to a summary judgment motion and further failed to seek additional time to obtain such an affidavit or move for a continuance of the summary judgment hearing. Thus, the trial court was essentially left with no choice but to grant summary judgment. The appellant’s attorney then filed a “vague and rambling” document that was treated by the trial court as a motion for rehearing. In support of the motion, the attorney did attach an affidavit which, had it been filed and served prior to the summary judgment hearing, would have precluded summary judgment because it did raise material fact issues in the case. However, the trial court refused to consider this belated affidavit and denied rehearing. The appellate court held that under those circumstances, the trial court had abused its broad discretion:

We are thus confronted with the question of whether the trial court abused its discretion in refusing to rescue Fer-nandes from the apparent incompetence of her lawyer. We recognize the broad discretion of the trial court in matters of this kind. While we do not know the underlying reasons which compelled the attorney to pursue this matter in the way he did, it is apparent to us that something has gone awry. Therefore, in light of the unique circumstances presented here, we determine that the trial court abused its discretion in refusing to consider Fernandes’ affidavit on rehearing. See Coastal States Mortgage Corp. v. Commonwealth Sav. & Loan Ass’n, 497 So.2d 917 (Fla. 3d DCA 1986); Wiskeman v. First Bank of Hollywood Beach, 405 So.2d 1044 (Fla. 3d DCA 1981); see also Tooke v. Downing, 564 So.2d 250 (Fla. 1st DCA 1990). Accordingly, we vacate the final judgment and remand this case for disposition on the merits.

Id. at 413 (footnote omitted).

Two years later, in Fatherly v. California Federal Bank, FSB, 703 So.2d 1101 (Fla. 2d DCA 1997), the same appellate court again reversed a summary judgment where, although the opponent of the summary judgment motion failed to file anything in opposition to the motion, the opponent hired new counsel after suffering the summary judgment and that counsel filed a timely motion for rehearing with attached evidence supporting her claim that summary judgment was improper. The bank did not attempt to controvert this belated filing, yet the trial court denied rehearing anyway. Fatherly appealed, and the court reversed. Referring to Fer-nandes, the court explained:

The circumstances of the instant case are similarly disturbing. Most assuredly, something has gone awry here. The allegations in Fatherly’s sworn motion for rehearing would defeat California Federal’s motion for summary judgment. If proved, those allegations could save Fatherly’s home from foreclosure. We conclude that the circuit court abused its discretion in refusing to consider Fatherly’s sworn allegations on rehearing. Accordingly, we reverse the final judgment and remand this case for disposition on the merits. On remand, Fatherly shall be permitted to amend her pleadings to properly allege the affirmative defenses contained in her prior answer and in her motion for rehearing.

Id. at 1103.

The instant case, like Fernandes and Fatherly, involved the apparently negligent legal representation of the party opposing the summary judgment. Olesh obtained new counsel post-hearing, who was able to file the Motion for Reconsideration and Rehearing prior to the rendition of the final summary judgment. The motion included attachments and an affidavit clearly raising material questions of fact which, if true, would not only preclude summary judgment, but would entitle Olesh to a portion of the proceeds of the sale of the home. The record clearly reflects that Olesh’s original attorney rendered substandard legal representation. Based on these unique facts and circumstances, we believe that the “trial court abused its discretion in refusing to rescue [Olesh] from the apparent incompetence of [his] lawyer.” Fernandes, 659 So.2d at 413 (footnote omitted). The summary judgment must, therefore, be reversed.

The Lis Pendens

In light of our reversal of the summary judgment, we also reverse the order dissolving the lis pendens, which was dissolved primarily because of the outcome of the summary judgment motion filed by Greenberg. See Mr. Sign Sign Studios, Inc. v. Miguel, 877 So.2d 47, 48 n. 1 (Fla. 4th DCA 2004) (“Because we reverse as to the summary judgment issue, we decline to address the other issues presented on appeal as the lis pendens will be reinstated.”); cf. Fla. R. Civ. P. 1.420(f) (“If a notice of lis pendens has been filed in connection with a claim for affirmative relief that is dismissed under this rule, the notice of lis pendens connected with the dismissed claim is automatically dissolved at the same time.”); Vonmitschke-Collande v. Kramer, 841 So.2d 481, 482 (Fla. 3d DCA 2002) (“The Florida Supreme Court made it abundantly clear that when an underlying case’s dismissal is reversed, the accompanying lis pendens is reinstated.”), review denied sub nom. Kramer v. Mitschke-Collande, 847 So.2d 977 (Fla.2003).

The above analysis does not end the inquiry in the instant case, however, because section 48.23(2), Florida Statutes, limits the validity of a notice of lis pendens to one year where the claim is not founded on a recorded instrument or a lien under part I of chapter 713, absent a trial court’s exercise of discretion in extending the time limitation “as justice requires.” § 48.23(2), Fla. Stat. (2006); see also § 48.23(3), Fla. Stat. (2006) (‘When the initial pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of chapter 713, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.”).

Although the record does not indicate that Olesh filed a motion to extend the time under section 48.23(2), a hearing was held on Greenberg’s motion to dissolve the lis pendens wherein the trial court ruled that it was not inclined to remove the lis pendens at that time, but would do so “when we get closer to selling this property and having a closing date set.” The trial court entered a written order denying the motion to dissolve. Arguably, the court’s intent was to extend the lis pen-dens to some future date, even one outside the one-year period. Because the trial court’s intent is not clear from the record before us, and based on the facts' and circumstances of this case, we believe that upon remand, Olesh should be allowed to seek an express extension of the lis pen-dens, whereupon an evidentiary hearing on the matter could be held. If the trial court finds grounds to continue the lis pendens, the trial court has the power to require Olesh to post a bond or impose other conditions or limitations. Avalon Assocs. of Del. Ltd. v. Avalon Park Assocs., Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000).

Denial of Olesh’s Motion to Amend the Complaint

We also believe that the trial court abused its discretion in refusing Olesh’s written motion to amend the complaint. The proposed amended complaint offered by Olesh did not inject new theories into the case, but was an attempt to clarify the original complaint to properly plead the existing causes of action. Under these circumstances, the trial court abused its discretion in denying Olesh’s motion. B.P. Dev. & Mgmt. Corp. v. P. Lafer Enters., Inc., 538 So.2d 1379, 1381 (Fla. 5th DCA 1989) (“Where summary judgment should be entered in a cause but it appears that the unsuccessful party may have a cause of action or defense if properly pleaded, the proper procedure is to grant the motion for summary judgment but with leave to amend.”); O’Brien v. Young, 538 So.2d 112 (Fla. 2d DCA 1989).

Conclusion

We conclude, based on the unique facts and circumstances of the instant case, that the summary final judgment and the order dissolving the lis pendens must be reversed and this case remanded for further proceedings on the merits. Olesh should be permitted to file an amended complaint and seek extension of the lis pendens. Because we voice no opinion as to the validity of the letter purportedly containing the signatures of both Greenberg and Olesh, Greenberg should be allowed to raise the issue of fraud should she believe the letter agreement is a forgery.

REVERSED and REMANDED for further proceedings consistent with this opinion.

TORPY and EVANDER, JJ., concur.


text:
    Carol Anne LESTER, Appellant/Cross-Appellee, v. Irving R. LESTER, Appellee/Cross-Appellant.
    No. 5D06-2444.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2008.

      William S. Chambers, IV, of Valenti Campbell Trohn Tamayo & Aranda, Lake-land, for Appellant/Cross-Appellee.
    Joseph S. Farley, Jr., of Mahon & Farley, P.A., Jacksonville, for Appellee/Cross-Appellant.
   PER CURIAM.

Carol Lester appeals from a post-dissolution “Order on Trust Proceeds,” which awarded her net proceeds from three lawsuits she was involved in with her former husband, Irving Lester, prior to their dissolution of marriage. She claims that the trial court erred by allowing her' former husband to deduct $135,000 from the net proceeds before calculating her half interest. We agree. In his cross-appeal, the former husband challenges two other aspects of the order. The former wife concedes error with respect to one of the issues on cross-appeal and also agrees that the other issue should be remanded for the trial court’s consideration.

At the time of their dissolution, the parties agreed to a final judgment that resolved all pending issues between them, including a litigation matter that had been settled prior to dissolution, and also provided for the future handling of two litigation matters that had not yet been resolved. With respect to the settled matter, the parties agreed to pay a substantial sum of money to an entity referred to as “DPI.” The final judgment recites- that the agreed sum had been partially paid using profits from a sale of stock, and prospectively required joint payment of the remaining DPI debt. As for the pending litigation, the final judgment stated that the parties would “be equally responsible for any indebtedness associated with such lawsuits and equally benefit therefrom, as the case may be.”

Settlement of one of the remaining matters resulted in a payment to the parties totaling $710,118.89. Settlement of the other matter resulted in a lesser debt. Before distributing the former wife’s net share of the settlement proceeds to her, the former husband properly subtracted all post-dissolution payments required to satisfy the remaining DPI debt (as authorized by the final judgment), subtracted the post-dissolution payment for the post-dissolution settlement (as authorized by the final judgment), and subtracted other litigation costs also authorized by the final judgment. These deductions are not disputed. However, the former husband also subtracted an additional $135,000, which was the amount paid pre-dissolution to partially satisfy the DPI debt.

We agree with the former wife that the trial court erred in allowing the former husband to subtract this $135,000 payment from the post-dissolution settlement proceeds before calculating her one-half share. The $135,000 was clearly paid pre-dissolution to satisfy a marital debt, and the agreement simply cannot be read as allowing the former husband any additional post-dissolution adjustment for this payment.

With respect to the issues on cross-appeal, the parties agree that the trial court overlooked $2,354.87 in attorney’s fees that should have been subtracted from the settlement proceeds before distribution of the balance. The parties also agree that the trial court’s order does not reflect any ruling on another issue relating to a $25,000 payment made to the former wife by the purchaser of the marital home. The former wife argues that the money was a personal loan to her, that in no way affects the former husband. The former husband argues that the money should be considered as additional proceeds from the sale of the marital home, and that he is entitled to half of the $25,000 (or, an additional $12,500). Although the trial court heard testimony and argument as to this issue, the order does not contain any ruling on the matter.

Therefore, we reverse the matter on appeal and remand with instructions that the trial court recalculate the amount due the former wife from the net settlement proceeds: (1) with no subtraction from the settlement proceeds for the December 11, 2000 payment of $135,000; (2) with a subtraction from the proceeds for an additional $2,354.87 in attorney’s fees; and (3) with any additional adjustment necessitated by the trial court’s ultimate ruling on the proper characterization of the $25,000 payment.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ORFINGER, TORPY and LAWSON, JJ., concur.


author: PLEUS, J.

text:
    Dana LINCOLN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-698.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2008.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

This appeal involves the propriety of the trial court’s enunciation of the defendant’s lack of remorse as a factor in imposing sentence on two counts of sexual battery upon a child (familial authority). The defendant, relying on several cases including Holton v. State, 573 So.2d 284 (Fla.1990), Lyons v. State, 730 So.2d 833 (Fla. 4th DCA 1999) and K.Y.L. v. State, 685 So.2d 1380 (Fla. 1st DCA 1997), disapproved on other grounds in State v. J.P.C., 731 So.2d 1255 (Fla.1999), urges that lack of contrition or remorse is a constitutionally impermissible consideration in imposing sentence.

We believe that St. Val v. State, 958 So.2d 1146 (Fla. 4th DCA), rev. granted, 966 So.2d 968 (Fla.2007), offers the proper framework for deciding this issue. As in St. Val, the trial court here, in imposing a sentence within the strictures of the criminal punishment code, was not punishing the defendant for exercising his constitutional right to plead not guilty and maintain his innocence. Rather, the defendant had testified at trial and was unable to explain incriminating comments he made in recorded telephone exchanges with the child victim. In one exchange, the victim referred to the “sex part” and the defendant replied, “You didn’t enjoy that?” The defendant additionally at one point during sentencing admitted he was sorry for “the whole thing,” for “what I did,” though he then raised challenges to the child victim’s credibility.

Under these circumstances, the trial court properly took into account the defendant’s lack of remorse for his misconduct. As did the Fourth District in St. Val, we affirm the sentence and certify direct conflict with K.Y.L.

SENTENCE AFFIRMED.

MONACO and COHEN, JJ., concur.

      . § 794.01 l(8)(b), Fla. Stat.


text:
    Theodore CARTER, Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee.
    No. 5D07-1653.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2008.

      Andrew G. Natelson, Flagler Beach, for Appellant.
    DeWitte Thompson of Thompson, Slagle & Hannan, LLC, Duluth, GA, for Appellee.
   PER CURIAM.

Theodore Carter timely appeals from a final summary judgment entered against him and in favor of Continental Casualty Company, finding him liable to Continental under two indemnity agreements and a “funds receipt and disbursement agreement” that he allegedly signed to secure the performance of a construction company. At the time of the summary judgment hearing, Carter’s deposition had been taken and filed with the court. In the deposition, Carter denied signing both indemnity agreements and claimed that although the signature on the funds receipt and disbursement agreement appeared to be his, he did not sign it and had never before seen it. Because Carter’s deposition testimony creates a genuine issue of material fact as to whether the signatures on the relevant documents were his or not, the trial court erred in entering summary judgment in Continental’s favor. See Fla. R. Civ. P. 1.510(c); Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502, 504 (Fla. 5th DCA 2005).

Therefore, we reverse the judgment against Carter, and remand for further proceedings in this matter.

REVERSED AND REMANDED.

ORFINGER, TORPY and LAWSON, JJ., concur.


text:
    Thomas W.G. FOSTER, etc., Appellant, v. Barbara Ann FOSTER, Appellee.
    No. 5D07-1746.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2008.
    Andrew A. Natelson, Flagler Beach, for Appellant.
    Barbara A. Foster, Flagler Beach, pro se.
   PER CURIAM.

We reverse the dissolution judgment because it does not contain the findings of fact required by section 61.075, Florida Statutes (2007). On remand, the trial court shall set forth the findings required by the statute, including, but not limited to, its rationale for the unequal distribution of marital assets. See Escudero v. Escudero, 739 So.2d 688, 692 (Fla. 5th DCA 1999).

REVERSED and REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.


text:
    George Allen GOOLDE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2666.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2008.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

We affirm Appellant’s convictions of two counts of lewd or lascivious molestation on victims less than twelve years old. See § 800.04(5)(b), Fla. Stat. (2006). In doing so, we note that the judgment contains a minor scrivener’s error, as each count is designated a first-degree felony punishable by life, when actually each is a life felony. While this offense was originally designated a felony of the first degree, it was elevated to a life felony by chapter 2005-28, effective September 1, 2005. See ch. 2005-28, §§ 5 & 28, Laws of Fla. The second amended information alleged that the offenses occurred on or about November 2005 through November 25, 2006. On remand, the court shall correct the scrivener’s error in the judgment to properly designate the two counts as life felonies. In all other respects, the judgments are affirmed.

AFFIRMED but REMANDED to correct scrivener’s error.

ORFINGER, MONACO and COHEN, JJ., concur.


text:
    Caitlin S. McCARTY, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3296.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2008.
    Richard L. Wilson, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The order finding a violation of probation and modifying probation is reversed. The trial court erred in determining that the defendant’s failure to attend an outpatient drug abuse treatment program amounted to a willful violation of probation. The defendant’s probation officer acknowledged he authorized the defendant to report to the Altamonte Springs branch of the drug treatment program on May 18, 2007 and that she so reported. The defendant could not have been violated for having been discharged from the Lake Mary branch of the treatment program on May-17, 2007.

The cause is reversed and remanded for re-imposition of the original terms of probation.

REVERSED AND REMANDED.

PLEUS, MONACO and COHEN, JJ., concur.


author: ORFINGER, J.

text:
    Scott L. POLEWARZYK, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3948.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2008.
    Scott L. Polewarzyk, Malone, Pro Se.
    No Appearance for Appellee.
   ORFINGER, J.

Scott L. Polewarzyk appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

Polewarzyk entered a guilty plea to burglary of a dwelling and grand theft. Under the terms of the written plea agreement, Polewarzyk was sentenced to fifteen years in prison as a prison releasee reof-fender (PRR) and a concurrent term of five years in prison for grand theft. Pole-warzyk’s main claim is that the structure he burglarized did not qualify as a dwelling as defined by section 810.011, Florida Statutes (2006), and as a result, there was no factual basis to support his plea. More specifically, Polewarzyk contends that because the house he burglarized was uninhabitable, although it may have at one time qualified as a dwelling under the statute, it did not at the time of the burglary. If true, Polewarzyk might be entitled to relief. See Munoz v. State, 937 So.2d 686 (Fla. 2d DCA 2006) (holding that house under construction did not qualify as “dwelling,” and thus, evidence was insufficient to sustain conviction for burglary of dwelling).

The trial court summarily denied this claim, concluding that it was one that could have been raised on appeal and was waived by the entry of a guilty plea. While we have no quarrel with that logic, the Florida Supreme Court recently ruled that a defendant who files a legally insufficient postconviction motion should be given at least one opportunity to correct the deficiency, unless it is apparent that the defect cannot be corrected. See Spera v. State, 971 So.2d 754 (Fla.2007). Although Polewarzyk’s motion was denied prior to the issuance of Spera, this matter was in the appellate “pipeline” when Spera was decided. Therefore, Spera applies. See Smith v. State, 598 So.2d 1063, 1066 (Fla.1992). We believe that Polewarzyk’s claim would be more properly framed as one alleging ineffective assistance of counsel and, on remand, Polewarzyk should be given an opportunity to amend. See Spera, 971 So.2d 754.

Polewarzyk also claims that the trial court improperly utilized hearsay evidence, ie., a letter under seal from the Department of Corrections (DOC) and an attached computer printout, to confirm his release date and help determine his status as a prison releasee reoffender. This issue is more appropriately raised on direct appeal, if it was preserved. See, e.g., Montana v. State, 597 So.2d 334 (Fla. 1st DCA 1992) (holding that allegations of erroneous admission of hearsay could have been raised on defendant’s direct appeal and were improperly raised in rule 3.850 motion). Still, in light of Spera, Polewarzyk should have an opportunity to amend this claim, as it may be more appropriately raised as an ineffective assistance of counsel claim, if it was not preserved. While we cannot determine whether Polewarzyk would be entitled to relief on the record available to us, we do note that in Yisrael v. State, 33 Fla. L. Weekly S131, — So.2d -, 2008 WL 450398 (Fla. Feb. 21, 2008), the supreme court held that Crime and Time Reports issued by the DOC, which are properly authenticated as public or business records, may be utilized to establish a defendant’s release date, while un-certified letters from the DOC may not.

For the reasons stated, we reverse the trial court’s summary denial of Polewar-zyk’s postconviction motion.

REVERSED AND REMANDED.

SAWAYA and LAWSON, JJ., concur.

      . § 775.082(9), Fla. Stat. (2003).

      . Due to the unusual procedural posture of this case, we provide the parties and the trial court with guidance as to how to proceed on remand. Polewarzyk did not timely file a direct appeal of his original conviction and sentence. After filing his rule 3.850 motion and the trial court's ruling thereon, Polewar-zyk filed a petition seeking a belated appeal with this Court, i.e., Case No. 5D07-3927, which was recently granted. Accordingly, Polewarzyk now has a direct appeal pending with this Court, i.e., Case No. 5D08-39, which must first be resolved before the trial court proceeds with reconsideration of Polewar-zyk’s postconviction motion.


author: SILBERMAN, Judge.

text:
    Walter Lee ATWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1702.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.
   SILBERMAN, Judge.

Walter Lee Atwell appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in all respects but write to address one of At-well’s claims.

Atwell asserts that defense counsel was ineffective for failing to move to suppress the statements that he made to two police detectives after he was given inadequate Miranda warnings. He claims that one of the detectives informed him of his rights by reading from a defective Miranda form used by the Tampa Police Department. Among other things, he asserts that he was not informed of his right to have counsel present during questioning.

This issue has recently received significant attention from this court. In Powell v. State, 969 So.2d 1060, 1063 (Fla. 2d DCA 2007), jurisdiction accepted, 973 So.2d 1123 (Fla.2008), this court held that a warning that a defendant has a right to counsel before questioning “failed to comply with state and federal constitutional requirements to adequately inform the accused of his or her right to have an attorney present throughout interrogation.” Previously, in M.A.B. v. State, 957 So.2d 1219 (Fla. 2d DCA 2007) (en banc), review granted, 962 So.2d 337 (Fla.2007), this court was evenly divided as to the adequacy of the identical warning. Then in Graham v. State, 974 So.2d 440 (Fla. 2d DCA 2007), this court distinguished Powell and found that the Miranda warnings were adequate because they advised Graham of the right to the presence of an attorney without any timeframe limitation.

While the cited cases all arose in the direct appeal context, Atwell has raised this issue in his postconviction motion alleging ineffective assistance of trial counsel. The standards for relief applicable to postconviction motions differ from those applicable to direct appeals. In a direct appeal, the harmless error test requires the State to prove beyond a reasonable doubt that a trial court error — even an error implicating constitutional rights— did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986); State v. Bouchard, 922 So.2d 424, 428-29 (Fla. 2d DCA 2006) (en banc) (citing Sanders v. State, 847 So.2d 504 (Fla. 1st DCA 2003), approved, 946 So.2d 953 (Fla.2006)). For example, this court recently reiterated that the erroneous admission of a defendant’s statement made after he was given an inadequate Miranda warning is subject to a harmless error analysis. See Mitchell v. State, 32 Fla. L. Weekly D2958, D2959, — So.2d -, -, 2007 WL 4355200 (Fla. 2d DCA Dec. 14, 2007). There, the court determined that the error was not harmless because the defendant’s statement was the only evidence placing him inside the victim’s home. Id.

By contrast, in a claim for postcon-viction relief, it is the defendant’s burden to “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Here, Atwell was tried for the armed robbery and kidnapping of four victims in a flower shop. Based on its review of the record, the postconviction court concluded that Atwell cannot meet his burden under Strickland. The court noted that “the State presented an overwhelmingly strong ease that involved ample evidence apart from Defendant’s statement” and attached portions of the record in support of its conclusion.

The trial transcript reflects that a fingerprint found at the crime scene was matched to Atwell. Three of the victims identified Atwell as the assailant from a photopak, and all four victims testified at trial and identified Atwell as one of the perpetrators. One victim testified that she received a letter from Atwell in which he admitted to participating in the robbery. We conclude that the postconviction court properly denied Atwell’s motion on the basis that the record conclusively shows he is not entitled to any relief because he cannot establish prejudice under Strickland.

Finally, although not addressed by the postconviction court, we note that Atwell’s statements to the detectives were made by him on July 17, 2002, while he was in jail and after he requested to talk to one of the detectives. The trial in this case occurred in July 2003, before our recent opinions on the adequacy of the Miranda warning concerning the right to have counsel present during questioning. The trial was also prior to the Fourth District’s decision in Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004). There, in a direct appeal, the Fourth District concluded that Roberts’ post-arrest statement should have been suppressed because the Miranda warning that he had received failed to inform him of the right to have an attorney present during questioning. Id. at 1226.

We are mindful that “counsel cannot be deemed ineffective for failing to anticipate changes in the law.” Diaz v. State, 810 So.2d 1023, 1025 (Fla. 2d DCA 2002). As did the postconviction court, we have resolved this case based on an analysis of the prejudice prong of Strickland without addressing whether counsel’s performance was actually deficient under Strickland. Our opinion should not be interpreted as determining that defense counsel’s performance was, in fact, deficient due to counsel’s failure to raise the issue at a time prior to our recent decisions on the Miranda issue and prior to Roberts.

Affirmed.

ALTENBERND and VILLANTI, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).