author: CLARK, J.

text:
    Marlon OLIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1315.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Marlon Olivera appeals his convictions and sentence for sexual battery on various grounds, two of which merit discussion. For the reasons explained below, the judgment and sentence are affirmed.

The information charged Appellant with several counts of sexual battery, each specifying the method as penetration with no mention of union. The state presented evidence of penetration and argued only that method of sexual battery. The defense did not dispute the method of sexual battery or offer contrary evidence as to the method, but argued that the jury might find that the acts alleged never occurred or that the victim consented.

At the charging conference, defense counsel agreed to the jury instructions and offered no objection to the standard instruction describing the act of sexual battery as “an act ... in which the sexual organ of the defendant penetrated or had union with” the victim’s vagina. The trial court instructed the jury accordingly, including the alternatives “penetrated or had union with.” The jury’s verdicts of guilty for the sexual battery charges were general verdicts with no indication whether the jury found that Appellant committed the act by penetration or union.

At the sentencing hearing, defense counsel objected to the criminal punishment code scoresheet because it included 80 points for “sex penetration” for each of the three counts in the Victim Injury section. Counsel did not argue that penetration had not been proved or found by the jury, but argued that penetration could not constitute victim “injury” when Appellant was not convicted of the aggravated battery charge. The trial court rejected the objection and sentenced Appellant within the scoresheet range and far below the statutory maximum sentence. Appellant again challenged the scoresheet points in his motion to correct illegal sentence, this time on the grounds that the jury’s general “guilty” verdict did not specify the method of sexual battery and the jury made no separate finding that the sexual batteries were committed by “penetration.” After conducting a hearing on the motion, the trial court denied relief.

Because jury instructions are subject to the contemporaneous objection rule, see Fla. R. Crim. P. 3.390, unpre-served error in a jury instruction may be reviewed on appeal only if fundamental error occurred. Insko v. State, 969 So.2d 992 (Fla.2007); Reed v. State, 837 So.2d 366, 370 (Fla.2002). Fundamental error is defined as error which “goes to the essence of a fair and impartial trial, error so fundamentally unfair as to amount to a denial of due process.” Sparks v. State, 740 So.2d 33, 35 (Fla. 1st DCA 1999). The fundamental error exception to the contemporaneous objection rule occurs “only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010), and cases cited therein.

Appellant contends that the trial court’s use of the standard instruction for sexual battery was fundamental error because the phrase “penetrated or had union with” gave the jury the option of convicting Appellant of sexual battery via “union” when the information charged only sexual penetration. Conviction of the uncharged form of sexual battery could not be ruled out by the jury’s general verdict of guilty.

While Appellant is correct that the opinion in Eaton v. State, 908 So.2d 1164 (Fla. 1st DCA 2005) recognized a per se rule of fundamental error under these circumstances, the rule has been modified by subsequent case law. In State v. Weaver, 957 So.2d 586 (Fla.2007), the Florida Supreme Court held that where a jury instruction erroneously includes “an element of an offense that the State does not argue is present and about which it presents no evidence,” the error “is not pertinent or material to what the jury must consider in order to convict.” State v. Weaver, 957 So.2d at 588, 589 (citations omitted). The Court held that when a jury is instructed alternatively, one alternative is not charged, and the state neither relies on that element nor presents any evidence thereon, the jury’s general verdict may be presumed to rest on “the elements on which the State actually presented evidence, on which the State based its arguments, and which the defendant contested at trial.” State v. Weaver, 957 So.2d at 589. Accordingly, in Weaver, instructing the jury on the two forms of battery— when the charge, evidence, and argument by the State concerned only one method— did not rise to the level of fundamental error.

This contraction of the fundamental error exception was applied to the “penetration or union” instruction for lewd or lascivious battery in Ross v. State, 31 So.3d 858 (Fla. 1st DCA 2010). There, the evidence and argument at trial made it clear to the court that the jury did not convict the appellant based on the uncharged theory of sexual union. Only when there is reason to believe the conviction is for an offense not charged, as when the jury’s verdict specifically convicts the defendant of the uncharged form of the offense, will the fundamental error exception be justified due to a violation of the defendant’s due process rights. Jaimes v. State, 51 So.3d 445 (Fla.2010).

The record in this case shows that sexual battery by “union” was never at issue, either in the charging document, proof offered, or argument of counsel. Accordingly, Appellant has failed to establish that the standard jury instruction resulted in a conviction for an uncharged offense constituting fundamental error in this case. Because the challenge to the jury instruction was not preserved for appeal by a contemporaneous objection, it is not properly before this court.

Considering the criminal punishment code scoresheet, the penetration points assessed are not a statutory sentence enhancement or statutory mandatory minimum sentence. These points did not alter the degree of felony for the sexual batteries charged and of which Appellant was convicted. As was the case in Neira v. State, 847 So.2d 1134, 1136 (Fla. 4th DCA 2003), the points resulted only in “placement in the scoresheet cell which set forth a range of sentence within the maximum sentence allowed for a second degree felony.” Accordingly, the trial judge was allowed to find “penetration” by a preponderance of the evidence presented at trial and no specific jury finding of penetration was required. Robles v. State, 952 So.2d 1210 (Fla. 5th DCA 2007). In the instant case, the evidence of penetration was un-controverted. Accordingly, the court’s assessment of penetration points was not erroneous.

AFFIRMED.

VAN NORTWICK and LEWIS, JJ., concur.


source: Caselaw Access Project

author: ROBERTS, J.

license: Public Domain

text:
    Allen MACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4869.
    District Court of Appeal of Florida, First District.
    March 31, 2011.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, J.

The appellant, Allen Mack, was tried by jury and convicted of one count of kidnapping and one count of felony battery as a repeat offender. The appellant raises several issues on appeal, one of which warrants reversal. The appellant argues that the trial court erred in denying his motion for mistrial after a State witness made a constitutionally impermissible comment upon his right to remain silent. We agree and reverse.

On direct examination, the lead investigator in the appellant’s case testified to the following. Part of his investigation in the case involved tracking down the appellant, who was a suspect. He conducted surveillance and followed leads for approximately two weeks before apprehending the appellant at the residence of a friend. The investigator went to the residence with other law enforcement officers who kept a perimeter around the residence for approximately two and a half hours. After the investigator finally gained access, he located the appellant in a locked bedroom. When the prosecutor asked the investigator whether the appellant made any statements, the following colloquy occurred:

PROSECUTOR: Upon making contact with [the appellant], did he make any statements to you?
WITNESS: He asked me who I was. I told him who I was. And he knew immediately because I asked him to call me to give me his side of the story.
PROSECUTOR: Did he make any other statements to you?
WITNESS: He said he’d rather talk to his attorney, and he didn’t want to talk anymore.

Defense counsel immediately objected to the comment, and the trial court sustained the objection. Defense counsel moved for a mistrial on the ground the comment was an impermissible comment on the appellant’s right to remain silent. Although a curative instruction was briefly discussed, none was given. The trial court took the motion under advisement, but did not deny the motion until after jury deliberations. In denying the motion, the trial court found that, while inappropriate, the comment did not rise to the level of being so prejudicial as to warrant a mistrial.

Comments on a defendant’s right to remain silent are high-risk errors because there is a substantial likelihood that they will vitiate the defendant’s right to a fair trial. See State v. DiGuilio, 491 So.2d 1129, 1136 (Fla.1986) (holding comments on the defendant’s right to remain silent are reviewed under the harmless error test). Any comment that is “fairly susceptible” to interpretation as a comment on the defendant’s right to remain silent will be treated as such. Id. at 1135. Comments on a defendant’s request for an attorney have been considered a comment on the exercise of the right to remain silent. See e.g., Shingledecker v. State, 734 So.2d 483 (Fla. 4th DCA 1999).

The due process clause of the Florida Constitution, Article I, section 9, guards against comments on a defendant’s post-arrest silence regardless of whether Miranda warnings have been given. See State v. Hoggins, 718 So.2d 761, 770 (Fla.1998). In Hoggins, the Court explained that “post-arrest silence is not limited to silence which occurs after the arresting officer informs the defendant that he or she is under arrest” in that it “also includes silence which occurs at the time of arrest.” Id. at 767. See also Ash v. State, 995 So.2d 1158 (Fla. 1st DCA 2008).

In Ash, an officer testified that he went to the defendant’s apartment for the purpose of arresting him and asked the defendant if they could talk some more to which the defendant replied that he had nothing to say. Id. The defendant was then placed under arrest. Id. This Court held the officer’s comment related to the defendant’s silence at the time of his arrest; therefore, it fell within the Hoggins proscription. Id. at 1159. Because the constitutional violation was not harmless, the defendant’s conviction was reversed. Id.

Likewise, in the instant case, the investigator’s testimony related to the appellant’s silence at the time he was arrested and was a constitutional violation. See id. We are unable to conclude that this improper comment was harmless beyond a reasonable doubt; therefore, the appellant’s conviction is REVERSED and the case is REMANDED for a new trial.

Because we are remanding for a new trial, we decline to address the appellant’s other issues, including his objection to the admission of a 911 tape on both hearsay and confrontation clause grounds.

CLARK and WETHERELL, JJ„ concur.


author: PER CURIAM.

text:
    FLORIDA DEPARTMENT OF REVENUE o/b/o Katie McKNIGHT, Appellant, v. Ernest ROBINSON, Appellee.
    No. 1D10-4670.
    District Court of Appeal of Florida, First District.
    March 31, 2011.

      Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Department of Revenue, on behalf of Katie McKnight, appeals an order setting child support and ordering DNA testing. The Department argues that the trial court erred in accepting the hearing officer’s recommendation that the parties submit to DNA testing for the best interest of the child. We agree. Paternity was not in controversy during the child support proceeding, and Appellee, who was listed as the father on the child’s birth certificate and who requested the testing merely “to be sure” that he was the child’s father, did not establish good cause for the testing. See State, Dep’t of Revenue ex rel. Carnley v. Lynch, 58 So.3d 1154 (Fla. 1st DCA 2011); State, Dep’t of Revenue ex rel. Sharif v. Brown, 980 So.2d 590 (Fla. 1st DCA 2008); State, Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157 (Fla. 1st DCA 2007).

Accordingly, we reverse the order on appeal to the extent that it orders DNA testing and remand.

REVERSED and REMANDED.

WOLF, DAVIS, and HAWKES, JJ., concur.


author: GROSS, C.J.

text:
    Mardala DERIVAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4074.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

Although Mardala Derival was charged with one count of manslaughter and one count of aggravated child abuse, she was convicted at a jury trial of the lesser included offense of child abuse. On appeal she asserts error in the failure to redact the words of an interrogating detective from her statement to the police, which was published to the jury. We hold that the trial court did not abuse its discretion because the probative value in the officer’s words was not “substantially outweighed by the danger of unfair prejudice” or “misleading the jury.” § 90.403, Fla. Stat. (2009).

Derival and her boyfriend were tried together on charges stemming from the death of their five-month-old baby, who died in the middle of the night. The autopsy report revealed a blood alcohol level of .476 percent and a brain alcohol level of .34, both lethal levels using data designed for adults. Alcohol was also found in the baby’s formula bottle at a level of .130 percent. The medical examiner testified that there had been changes in the baby’s liver indicating she had ingested alcohol multiple times over multiple days. The state offered evidence that alcohol toxicity was the cause of death.

Witnesses testified that Derival had said she put alcohol in the baby’s bottle because the child would not stop crying. Derival and her boyfriend gave statements to police that they fed the baby alcohol mixed with water, which was an old Haitian folk remedy for sick children.

Derival’s defense was that the baby had died of causes unrelated to the fact that she had given the baby alcohol, so that there was no child abuse. When officers got to the house to investigate the death, Derival’s boyfriend told officers the baby had been sick with diarrhea, fever and vomiting for about a week. The medical examiner testified that the child had lung and ear infections and laryngitis. He did not, however, believe that the infections contributed to the death.

A defense expert testified that the baby had died from an infection of the kind of bacteria found in her lung and ear, which can cause septic shock. An expert on Haitian culture testified that in Haiti, a different kind of alcohol is used to make the alcohol-based home remedy. In the United States, they substituted white alcohol or ethanol.

During trial, the state agreed to redact a number of statements made by officers during interrogation, but disagreed as to others. On appeal, Derival argues that it was error for the trial court to allow the jury to hear the interrogating officer’s assertions of fact in the following three exchanges:

Q. Mardala, do you understand that the baby died because of the having too much alcohol?
A. It wasn’t us that put (inaudible). It wasn’t us that put the alcohol in the baby’s food. I know the alcohol was— did the baby good.
Q. Who could have done that?
A. I don’t know. No one else comes in the house, (inaudible) we’re the only two with the baby.
Q. Mardala, there was a lot of alcohol in the baby.
A. The only thing that we put was a little bit of alcohol in the water. It was just a little bit. That was it. That’s all. We don’t know anything about that because we didn’t put any alcohol on the food — on the food. I didn’t (inaudible) anything. The only thing we did was the little mixture of the medicine, but we didn’t put the food — -we didn’t put any alcohol on the food. We didn’t do. It I don’t know who did.

II

Q. Would you normally make the baby’s formula right before you feed the baby at night?
A. Yes, yes.
Q. You don’t know how the alcohol got into the formula?
A. No.
Q. Is it possible that you put the alcohol in the formula by mistake?
A. No.
Q. Do you know what the alcohol is? Was that for Mackenson to drink?
A. Yes. It’s white alcohol.
Q. And no one gave that baby alcohol before?
A. No.
Q. Okay. Do you understand that it is a fact that is true that somebody has been feeding baby alcohol?
* * *
A. No.
Q. It is true.
A. How is it true what I said?
Q. No, it’s true that the baby had alcohol in its system, a lot of alcohol.
A. I didn’t say that you’re lying, but we just didn’t give the baby any alcohol.
Q. I just want to make sure that you understand that, that is true.
A. But we didn’t do it. We didn’t do that.
Q. And you know nobody who did?
A. No....

III

Q. The reason the baby was lost was because of the alcohol.
A. It was just a little medicine that we gave the baby. Nothing else.
Q. Not true. More alcohol was given.

Derival relies on Sparkman v. State, 902 So.2d 253 (Fla. 4th DCA 2005), to argue that the trial court erred when it failed to redact from her statement the officer’s descriptions of the cause of the baby’s death. However, the officer’s assertions regarding the baby’s cause of death did not carry the danger of unfair prejudice that informed the decision of the court in Sparkman.

As we explained in Eugene v. State, 53 So.3d 1104 (Fla. 4th DCA 2011),

Sparkman was a manslaughter case involving the death of a toddler. Id. at 254. Other than the defendant, there were no direct witnesses to the events leading up to the child’s death. See id. at 254-57. The case was based largely upon after-the-fact testimony from the child’s father, an emergency medical technician, and two medical examiners, one of whom testified that traumatic, and not accidental injury was the cause of the child’s death. Id. In a tape recorded statement with a detective, the defendant maintained that she did not do anything that would have hurt the baby, that she just shook her a little to get her to wake up from a seizure. Id. at 256-57. During the statement, the detective launched into an extensive recitation of his theory of the case, outlining his version of the facts of the crime. Id. at 257-58. The defendant responded to the detective’s accusations with “Uh huh” and with silence.-

The Sparkman court reversed because, when combined with the defendant’s equivocal responses to them, the failure to exclude from the tape recording the detective’s hypotheses about how the crime occurred created a substantial danger of unfair prejudice. As we explained in Eugene,

[t]he basis of the holding [in Sparkman ] was that the probative value of the detective’s words was “substantially outweighed by the danger of unfair prejudice” or “misleading the jury” under section 90.403, Florida Statutes (2005). See Shrader v. State, 962 So.2d 369, 371 (Fla. 4th DCA 2007) (recognizing that basis of holding in Sparkman was that detective’s statements were “blatantly prejudicial”). The danger of unfair prejudice in Sparkman was that the jury might have taken the defendant’s responses to the detective’s detailed and speculative narrative — silence and “Uh huh” — as admissions of guilt.
Not everything a detective says to a defendant during a recorded interrogation is unfairly prejudicial under 90.403. The Supreme Court has recognized that a jury may hear an interrogating detective’s statements about a crime when they provoke a relevant response from the defendant being questioned. For example, confronting a defendant with a codefendant’s statements may properly be used “as provocation” to observe a defendant’s reactions. See Jackson v. State, 18 So.3d 1016, 1031-32 (Fla.2009). Such statements may be heard by the jury to “give context to the interview.” McWatters v. State, 36 So.3d 613 (Fla.2010). When placed in “their proper context,” an interrogating detective’s statements to a suspect could be understood by a “rational jury” to be “techniques” used by law enforcement officers to secure confessions. Id. at 637 (quoting Worden v. State, 603 So.2d 581, 583 (Fla. 2d DCA 1992)).

Id. (footnote omitted).

In this case, there was no substantial danger of unfair prejudice in allowing the jury to hear the officer’s statements about alcohol. These facts came into evidence through other witnesses in the trial who were subject to cross examination. Unlike Sparkman, Derival made no equivocal responses to the officer’s questions that the jury might have misconstrued.

Affirmed.

STEVENSON and GERBER, JJ., concur.


author: WARNER, J.

text:
    Eddie FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3278.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.

      Patrick C. Rastatter of Glass & Rastat-ter, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, who was convicted of possession of a firearm and ammunition by a felon, challenges the trial court’s denial of his motion to suppress the search of his apartment which resulted in the discovery of the firearm. He claims that the officer did not have a warrant or valid consent to enter the apartment. However, we agree with the trial court that appellant’s girlfriend, a co-occupant, validly consented to the officer’s entry. We therefore affirm appellant’s conviction and sentence.

Before trial, appellant filed a motion to suppress, claiming that the firearm and ammunition were obtained as a result of an illegal search and seizure at the apartment where he lived. The trial court held a suppression hearing, at which the only witness was Officer Woolley of the Margate Police Department. Officer Woolley testified that he and his training officer responded to a 911 call regarding a domestic disturbance at an apartment in Margate. The 911 caller advised that she was in a fight with her boyfriend and that she was locked outside the apartment. During the 911 call, the caller stated that she lived at the apartment.

When Officer Woolley arrived at the location, he encountered the 911 caller, Amónica Ferrell, in the front yard of the apartment. Ms. Ferrell was wearing a long t-shirt, but no pants. She had nothing with her except for a cell phone. Officer Woolley noticed that she had obvious signs of trauma, including a fresh bruise on her eye as well as several bruises on her legs. Ms. Ferrell told the officers that she had been sleeping by herself, and that when appellant came home, they started fighting. She stated that during the argument, she started packing her things to move out of the apartment. She further explained that as she was putting her clothes in the front of the house, appellant became physically abusive and struck her several times.

The officers took Ms. Ferrell to the police station, where she gave a sworn statement. She said that she had been living at the apartment for approximately two months, and explained that nobody else lived there besides appellant and herself. She had belongings inside the apartment, including her purse, her keys, her identification, food and clothing, as well as a subpoena.

Officer Woolley took Ms. Ferrell back to the apartment, because she wanted to move out to avoid future violence. There, they entered the leasing office to see if the property management would unlock the door to the apartment. However, the property managers declined, because neither Ms. Ferrell nor appellant was listed as a tenant on the lease. The property managers also told the officers that they did not recognize Ms. Ferrell as a resident.

After leaving the leasing office, the officers went back to the apartment with Ms. Ferrell. They knocked on the front door several times, but nobody answered. However, Ms. Ferrell advised the officers that the rear slider door was unlocked. Ms. Ferrell and the officers then went to the back of the apartment, where the officers pulled back the patio screen to gain access to the back sliding door. The officers then entered the back of the apartment through the slider door, which was in fact unlocked.

Ms. Ferrell stayed on the back patio area, while the officers entered the premises to see if appellant was inside. Once inside the residence, the officers found no one inside. However, the officers saw a full-sized assault weapon in plain view in the bedroom. A magazine with ammunition was attached to the rifle. Officer Woolley testified that the firearm was standing straight up against the wall at the time.

When Ms. Ferrell came into the apartment, she went directly to her purse on the kitchen counter. She reached inside and removed her personal keychain, which had a key that matched the door to the apartment. There was a court subpoena addressed to Ms. Ferrell on the refrigerator, but the address on the subpoena did not match the address of the apartment, nor did her driver’s license contain the apartment address. The officers did not see any bills or any other mail in Ms. Ferrell’s name in the apartment.

Officer Woolley also observed a large pile of clothing directly in front of the door, just as Ms. Ferrell had told the officers when they first started talking to her. The amount of clothing appeared to confirm to the officer that Ms. Ferrell was a resident and not merely a casual guest.

However, to Officer Woolley’s knowledge, there were no furnishings or pictures in the apartment that belonged to Ms. Ferrell. On cross-examination, Officer Woolley acknowledged that the only things Ms. Ferrell had in the apartment were the large pile of clothes, her purse, a subpoena, and some food items.

At the conclusion of the hearing, the trial court denied the motion to suppress, finding that Ms. Ferrell had actual authority to give the officers consent to enter the premises, as she had joint access or control of the apartment, and she voluntarily gave her consent for the entry. The court further found that even if she did not have such control, it was reasonable for the police to believe that she was a co-tenant under all of the circumstances. The court denied the motion to suppress.

After the denial of the motion to suppress, the case proceeded to trial. Following the jury trial, appellant was convicted of possession of a firearm by a felon and possession of ammunition by a felon. The court sentenced appellant as a habitual felony offender to 204 months in prison, followed by 24 months of community control and 24 months of probation. This appeal follows.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Terry v. State, 668 So.2d 954, 958 (Fla.1996). An appellate court is bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence. Pagan v. State, 830 So.2d 792, 806 (Fla.2002); Hunter v. State, 32 So.3d 170, 173 (Fla. 4th DCA 2010). However, an appellate court applies a de novo standard of review to the mixed questions of law and fact that ultimately determine constitutional issues. See Schoenwetter v. State, 931 So.2d 857, 866 (Fla.2006); Falls v. State, 953 So.2d 627, 629 (Fla. 4th DCA 2007).

Warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted). Police officers may not enter a dwelling without a warrant absent consent or exigent circumstances. Rebello v. State, 773 So.2d 579, 580 (Fla. 4th DCA 2000). Once the defendant makes a prima facie showing that law enforcement conducted a warrantless search, the burden of sustaining the legality of the search shifts to the state. Lewis v. State, 979 So.2d 1197, 1200 (Fla. 4th DCA 2008). In this case the state sought to prove the authority of appellant’s girlfriend to consent to the officer’s entry into the apartment.

To justify a warrantless search by proof of voluntary consent, the state “is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In a well-cited explanation of common authority, the Matlock court stated:

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-parly consent does not rest upon the law of property, with its attendant historical and legal refinements, ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. at 171 n. 7, 94 S.Ct. 988 (citations omitted).

Matlock described the common authority which leads to actual authority to consent to entry onto property in joint control. However, even where there may be no actual authority, officers may “reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises[.]” Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

In Rodriguez, the Court held that the state failed to meet its burden of establishing that the woman who gave permission for the search had common authority over the premises and thus actual authority to consent to the search. Id. at 181-82, 110 S.Ct. 2793. The Court explained that the woman had moved out a month before the search at issue and had removed her clothing, though she left behind some furniture and household effects. Id. at 181, 110 S.Ct. 2793. She also had a key to the defendant’s apartment and sometimes spent the night, but she never invited her friends there, and never went there herself when he was not home. Id. Further, her name was not on the lease nor did she contribute to the rent. Id. On these facts, the Court agreed with the lower court’s determination of no common authority. Id. at 182, 110 S.Ct. 2793. However, the Court remanded for the lower court to determine whether the officers reasonably believed that the woman had the authority to consent. Id. at 189, 110 S.Ct. 2793.

The Seventh Circuit has identified a non-exhaustive list of facts which militate in favor of a finding of a person’s authority over the premises: (1) possession of a key to the premises; (2) a person’s admission that he or she lives at the residence in question; (3) possession of a driver’s license listing the residence as the driver’s legal address; (4) receiving mail and bills at that residence; (5) keeping clothing at the residence; (6) having one’s children reside at that address; (7) keeping personal belongings such as a diary or a pet at that residence; (8) performing household chores at the home; (9) being on the lease for the premises and/or paying rent; and (10) being allowed into the home when the owner is not present. United States v. Groves, 470 F.3d 311, 319 (7th Cir.2006). The court noted that this was not an exhaustive list but suggested the types of criteria that courts should examine in determining the issue of common authority. Id. at 319 n. 3.

Relying on Matlock, the Second Circuit determined that third party consent can validate a search when two prongs are present: “first, the third party had access to the area searched, and, second, either: (a) common authority over the area; or (b) a substantial interest in the area; or (c) permission to gain access.” United States v, Davis, 967 F.2d 84, 87 (2d Cir.1992). The court later applied that analysis in a case somewhat analogous to the present case. In United States v. McGee, 564 F.3d 136 (2d Cir.2009), the defendant’s girlfriend called 911 asking for assistance. She lived with the defendant but was attempting to move out and had packed her bag. Defendant grabbed her bags, put them inside, and took away her key in an attempt to prevent her from leaving. The officer told her that she could break a window if she could provide him with evidence that she lived at the residence. She showed him a letter addressed to her at the residence, and she broke in. When the deputy entered and assisted the girlfriend in packing her remaining belongings, he discovered guns and ammunition, and defendant was eventually indicted for possession of guns by a convicted felon.

The defendant moved to suppress the evidence obtained from the residence. He argued that because he took away his girlfriend’s key and locked her out of the house, she had no authority to consent to enter the house. The court acknowledged the appeal of his argument, but rejected it under a proper analysis of Davis.

McGee’s argument is by no means unreasonable. It is true that Ellison had no formal property interest that afforded her a right to enter. Any access she enjoyed came to her solely as McGee’s invitee, and, for the moment at least, McGee had locked her out of the house and taken away her key....
While McGee’s argument is respectable, we believe it is mistaken and mis-perceives the meaning of “access” as used in Davis. Whether a so-called “third party,” i.e., one whose access depends on the approval of the person who owns the formal right of possession, has access to a premises depends on the understandings communicated by the titular owner to that person. The presence or absence of locks on doors can be helpful to the court’s discernment of that understanding, but does not directly answer it....
On the unusual facts of our case, McGee’s argument fails. McGee did not lock Ellison out of the house and take away her key with the intention of excluding her from continuing to live in his house with him. By locking the door, he was not saying, “Get out of my house and stay out.” To the contrary, McGee locked her bags in the house and locked her out temporarily in an effort to prevent her from leaving the house. Far from seeking to expel her from the house, his conduct was designed to insure that she would continue to reside in it. He was simply trying to put her baggage out of her reach so that she would not depart. While it is true that in doing so he temporarily prevented her from entering the house, that was an incidental consequence of his action rather than his objective.

Id. at 14CM1. The court affirmed the denial of the motion to suppress, concluding that both prongs of Davis, i.e., access and common authority were proved.

Although we recognize the factual differences between McGee and this case, McGee still is instructive. In this case, Ferrell told the officers that she had been living with appellant for two months. Certainly, her presence outside the apartment practically naked and beaten would indicate to the officers that she had some connection to the premises. Unlike McGee, the appellant did not deprive her of her key, and even though she did not have a key prior to entry, the officer confirmed that a key to the apartment was in her purse. Like McGee, Ferrell was trying to move out of the apartment, when appellant stopped her by pushing her out of the house without either her clothes or her purse. Certainly, if appellant wanted to deprive Ferrell of her access and right to come into the apartment, he would have thrown all of her property out of the apartment.

Appellant relies on the fact that the property manager of the apartment complex told the officer that he could not use a key to admit Ferrell to the apartment, because she was not on the lease. From this, he posits that the officers did not have a reasonable belief that she had the authority to consent. He mixes, however, the concepts of actual authority and apparent authority. The fact that Ferrell was not on the lease is not dispositive of her claim of actual authority. Under the unusual circumstances of this case, where neither appellant nor Ferrell was on the lease as a tenant, the lease has little bearing on whether Ferrell had actual authority to consent.

Under the Davis two-prong test, Ferrell had (1) access, because she had a key to the premises; and (2) either common authority or a substantial interest in the premises, as all of her clothes and purse were inside and she was living at the apartment for the past two months.

Several of the factors set forth by the Seventh Circuit are present in this case: (1) Ferrell possessed a key to the premises; (2) Ferrell made a sworn statement to the officers that she lived with appellant at the apartment; (3) Ferrell kept a substantial amount of clothes at the residence; and (4) she was allowed to be alone in the apartment and was so on the night of the incident.

Although she had not changed her address on either her license or other mailings, in considering the totality of the circumstances of this case under the description of common authority under Matlock, we conclude that the state proved that Ferrell had common authority over the apartment so that her consent for the officer to enter the premises validated their presence and discovery of the assault rifle in plain view in the bedroom. We thus affirm the trial court’s ruling.

For the foregoing reasons, we affirm the appellant’s conviction and sentence.

POLEN and STEVENSON, JJ., concur.

      . At trial, the property manager testified that the individuals named on the lease to the apartment were appellant’s brother and grandmother.

      . Because we decide that Ferrell had actual authority to permit the officers to enter the apartment, we do not further analyze her apparent authority.

      . While appellant relies upon Rodriguez for its determination that there was no actual common authority under those facts, it is significant that in Rodriguez the woman who gave permission for entry into the premises had moved out almost a month before the search. Although she continued to stay occasionally at the premises, she removed her possessions and never invited her friends or acquaintances there, thus indicating that she did not treat this as her own home.


author: ROTHENBERG, J.

text:
    STOK & ASSOCIATES, P.A., Petitioner, v. CITIBANK, N.A., Respondent.
    No. 3D10-3078.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.

      Stok & Associates, P.A., and Robert A. Stok and Jason M. Folk, Aventura, for petitioner.
    Casey Ciklin Lubitz Martens & O’Con-nell, and John D. Boykin, West Palm Beach, for respondent.
    Before CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

Stok & Associates, P.A. (“Stok”) appeals the trial court’s non-final order granting Citibank, N.A.’s (“Citibank”) motion for a stay of the state court proceedings pending resolution of the federal proceedings regarding Citibank’s motion to compel binding arbitration. Because we conclude that the order granting the stay is a non-final, non-appealable order, we treat Stok’s initial brief as a petition for writ of certio-rari, see Dep’t of Agric. & Consumer Servs. v. Patehen, 25 So.3d 1283 (Fla. 3d DCA 2010), and we deny the petition.

On December 12, 2008, Stok sued Citibank in state court. After answering the complaint and asserting an affirmative defense, Citibank moved to compel arbitration pursuant to the parties’ contract. Stok objected to the motion, contending that there is no agreement that requires the parties to arbitrate, and if such an agreement exists, Citibank has waived its right to enforce the agreement by participating in the litigation and answering the complaint. However, before the state court had an opportunity to rule on Citibank’s motion to compel arbitration, Citibank withdrew the motion and filed a motion to compel arbitration in the federal district court.

Citibank’s choice to pursue its motion to compel arbitration in federal court is obvious as there is a dramatic difference between the Florida Supreme Court’s and the state District Courts of Appeal’s jurisprudence regarding waiver of the right to compel arbitration, and that of the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit applies the following two-part test in determining whether a party has waived its right to arbitrate: (1) whether that party has acted inconsistently with the arbitration right; and (2) whether that party in some way prejudiced the other party, see Ivax Corp. v. B. Braun of Am. Inc., 286 F.3d 1309, 1315-16 (11th Cir.2002). However, the Florida Supreme Court in Raymond James Financial Services, Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005), declined to follow the Eleventh Circuit, finding, instead, that a waiver occurs merely “by actually participating in a lawsuit or taking action inconsistent with that right.” In other words, Florida state courts do not require that prejudice be shown. See Estate of Williams v. Manor Care of Dunedin, Inc., 923 So.2d 615 (Fla. 2d DCA 2006); Mora v. Abraham Chevrolet-Tampa, Inc., 913 So.2d 32 (Fla. 2d DCA 2005).

After hearing Citibank’s motion to compel arbitration, the federal district court denied the motion and dismissed the federal action. The Eleventh Circuit Court of Appeals, however, reversed and remanded for further proceedings, finding insufficient evidence of prejudice. Citibank, N.A. v. Stok & Assocs., P.A., 387 Fed.Appx. 921 (11th Cir.2010). Upon remand, Stok filed a petition for a writ of certiorari in the United States Supreme Court, obtained a stay in the federal district court, and subsequently obtained a stay in the state court action.

Although Stok has appealed the state trial court’s order granting Citibank’s motion for a stay, we have concluded that the order is a non-final, non-appealable order, and we treat the appeal as a petition for writ of certiorari.

Orders granting stays may be reviewed by certiorari, see Patchen, 25 So.3d at 1284 n. 1; Pilevsky v. Morgans Hotel Grp. Mgmt., LLC, 961 So.2d 1032, 1033 (Fla. 3d DCA 2007), and the standard of review is whether the “underlying order departs from the essential requirements of the law, resulting in a material injury that cannot be corrected on appeal.” Sorena v. Gerald J. Tobin, P.A., 47 So.3d 875, 877 (Fla. 3d DCA 2010). Because the state and federal courts share concurrent jurisdiction in this action, and the determination of the issue of arbitration in the federal action will dramatically impact the state court action, we cannot conclude that the state trial court departed from the essential requirements of law. Accordingly, we deny the petition.

Petition denied.

      . Stole & Assocs., P.A. v. Citibank, N.A., — U.S. —, 131 S.Ct. 1556, 179 L.Ed.2d 299 (2011) (granting petition for writ of certiora-ri).


text:
    Todd LEANDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1993.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Todd Leander, Tampa, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In the guise of a motion for clarification of his probation conditions, the appellant attacks his convictions for various counts of computer child exploitation; attempted lewd conduct; transmission of material harmful to minors by electronic device; and promoting sexual performance by a child, charges to which he pled guilty. We affirm the denial of the motion for clarification. Appellant contends that his probation needs clarifying because some of the conditions, such as sexual offender status, would apply only if there were a victim of his crimes, and he claims that there was no ■victim of his crimes. This constitutes an attack on his conviction and must be brought through a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Even if we were to consider the motion for clarification as a motion to correct an illegal sentence, to the extent that he is arguing that there was no factual basis for his guilty plea, rule 3.800(a) motions are not used to resolve factual disputes. See Krawic v. State, 666 So.2d 599 (Fla. 4th DCA 1996).

GROSS, C.J., WARNER and TAYLOR, JJ., concur.


author: COHEN, J.

text:
    K.E.L. TITLE INSURANCE AGENCY, INC., Appellant, v. CIT TECHNOLOGY FINANCING SERVICES, INC., Appellee.
    No. 5D09-3081.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    Mark A. Skipper, Orlando, for Appellant.
    Diane N. Wells of Devine Goodman Ras-co & Wells, Miami, for Appellee.
   COHEN, J.

Appellant, K.E.L. Title Insurance Agency, Inc., challenges the entry of summary judgment in favor of Appellee, CIT Technology Financing Services, Inc. While two issues were raised on appeal, only one merits discussion: whether Appellant’s affidavit raised a genuine issue of material fact, precluding summary judgment.

Appellant entered into two lease agreements with Appellee for the purchase of digital imaging equipment. After Appellant defaulted on payment, Appellee filed suit and later moved for summary judgment. In support of its affirmative defense that Appellee materially breached the contract by failing to comply with its service agreement, Appellant filed a sworn affidavit asserting the existence of a service agreement with a third party that was an agent of Appellee. This affidavit is contradicted by the explicit terms of the lease agreements which stated Appellant was responsible for any service or maintenance and the supplier was not Appellee’s agent. Despite Appellant’s sworn affidavit, the trial court granted Appellee summary judgment after determining no genuine issues of material fact existed.

Notwithstanding Appellant’s argument to the contrary, the trial court did not err in granting summary judgment because Appellant’s affidavit was merely concluso-ry in nature and insufficient to raise a genuine issue of material fact. See Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (holding conclusory affidavits inadequate to create issue of fact); Valderrama v. Portfolio Recovery Assocs., LLC, 972 So.2d 239, 239 (Fla. 3d DCA 2007).

Accordingly, the final summary judgment is affirmed.

AFFIRMED.

GRIFFIN and TORPY, JJ„ concur.


author: DAVIS, Judge.

text:
    Richard Allen PLAMONDON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2675.
    District Court of Appeal of Florida, Second District.
    April 8, 2011.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Richard Allen Plamondon challenges the sentence he received upon a revocation of probation, and the State properly concedes error. We reverse and remand for resen-tencing.

On October 80, 2002, Plamondon entered a plea to lewd and lascivious battery and was placed on sex offender probation as a youthful offender. On May 8, 2009, the trial court found Plamondon in violation of that probation by committing the technical violation of failing to pay child support. The trial court thus revoked Plamondon’s probation and sentenced him to a new five-year term of probation. After filing his notice of appeal, Plamondon moved below to correct sentencing error, arguing that the trial court erroneously failed to again designate him a youthful offender when sentencing him after revoking his probation. Because the trial court failed to rule on that motion within sixty days, it is deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B), (b)(1)(B).

On appeal, in addition to raising the lack of youthful offender designation, Plamondon argues that the trial court also erred in failing to give him credit for time served on probation. The State concedes error with respect to both issues. We agree.

“[O]nce the circuit court has given a defendant youthful offender status and has sentenced him as a youthful offender, it must continue that status and only resentence the defendant as a youthful offender for a violation of the probation or community control portion of his youthful offender sentence. A youthful offender’s sentence after revocation of probation or community control is therefore limited to a maximum of six years less credit for time served.”

State v. Watts, 558 So.2d 994, 997-98 (Fla.1990) (quoting Watson v. State, 528 So.2d 101, 102 (Fla. 1st DCA 1988)); see also § 958.14, Fla. Stat. (2009) (“[N]o youthful offender shall be committed to the custody of the department for a ... technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served.”).

Here, Plamondon pleaded to a second-degree felony with a statutory maximum of fifteen years. Because he was sentenced as a youthful offender, under section 958.14, his maximum sentence was limited to six years. “[U]pon revocation of probation, the time a probationer has already served on probation for a given offense must be credited toward any new term of probation imposed for that offense, when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense.” State v. Summers, 642 So.2d 742, 743 (Fla. 1994) (emphasis added). Although the newly imposed five-year term of probation did not exceed the six-year statutory maximum for a youthful offender sentence, combining that five years with the approximately three years and nine months Pla-mondon already has served on probation gives him a total term of probation of nearly nine years.

Accordingly, we reverse Plamondon’s sentence and remand with instructions that he be resentenced as a youthful offender and that his total sentence not exceed the six-year statutory maximum for youthful offenders.

Reversed and remanded.

KELLY and LaROSE, JJ., Concur.

      . See generally State v. Meeks, 789 So.2d 982, 989 (Fla.2001) (“[A] ‘substantive violation,' as the phrase is used in [the violation of probation statute,] section 958.14, [Fla. Stat. (2009),] refers exclusively to a violation premised on the commission of a separate criminal act.”).


author: LAWSON, J. COHEN, J.,

text:
    Juan HABEYCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3323.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Juan A. Habeych timely appeals the sentence he received following his no contest plea to charges of trafficking in more than fourteen grams of heroin, a first degree felony, and resisting an officer without violence, a misdemeanor. Appellant contends that he was sentenced in violation of his right to counsel, and argues that his sentence “must be vacated because the record shows that Appellant was sentenced without his attorney being present and there is no record waiver of Appellant’s right to counsel.” We agree and reverse.

On March 17, 2009, Appellant, who was represented by current counsel, entered no contest pleas to both charges. A sentencing hearing was scheduled for May 6, 2009, and was ultimately rescheduled to August 18, 2009. On August 17, 2009, one day prior to the sentencing date, Appellant’s counsel filed a notice of conflict and motion to continue, alleging that counsel could not attend the scheduled sentencing because he was trying a murder case in another felony division of the same circuit. The trial court acknowledged the motion, but elected to sentence Appellant without his attorney present. Reversal is required. See, e.g., Jackson v. State, 983 So.2d 562 (Fla.2008) (holding that a complete denial of counsel at sentencing is fundamental error, and is not subject to harmless error review).

Accordingly, we reverse the sentences and remand with directions that Appellant be afforded a new sentencing hearing with counsel present.

REVERSED AND REMANDED WITH DIRECTIONS.

EVANDER, J., concurs.

COHEN, J., concurs specially, with opinion.

COHEN, J.,

concurring specially.

I agree that reversal is mandated. No one reading this opinion, including the trial judge, will be surprised by the result. I do not write to condone the action of the trial judge, only to provide context.

Appellant’s lawyer, both below and on appeal, is F. Wesley “Bucky” Blankner. Mr. Habeych entered into a negotiated plea on March 17, 2009. Sentencing was scheduled for June 10, 2009. While we have no transcript of that proceeding, we know Mr. Blankner did not appear. Instead he sent an associate, who requested, ore tenus, a continuance of the sentencing. That motion was granted and sentencing postponed until August 18, 2009, at 9:00 a.m. The day before the scheduled sentencing, Mr. Blankner filed a notice of conflict, indicating he would be starting jury selection in a murder case and would be unable to attend. The trial judge, apparently frustrated at the prospect of another delay in sentencing and recognizing the expense to the citizens of Orange County in keeping Mr. Habeych incarcerated locally, called the judge listed in the notice of conflict and learned that jury selection was not scheduled to begin until 9:30 a.m. A call was then placed to Mr. Blankner’s office informing him that he would be expected to appear at the scheduled sentencing in Mr. Habeych’s case. When Mr. Blankner failed to appear, the trial court proceeded with sentencing.

The trial judge in this case, no doubt, had other such experiences with Mr. Blankner and had simply had enough. In his own words, he refused to be held hostage by Mr. Blankner. His error was taking out his frustration on Mr. Habeych, rather than his lawyer.

      . § 893.135(l)(c)l.b., Fla. Stat. (2009).

      . § 843.02, Fla. Stat. (2009).

      . It is clear the trial judge expected a motion to set aside Mr. Habeych’s sentence. The judge stated, "I'm going to sentence him to the Department of Corrections and let him go ahead and file a motion to set it aside if he wants to.” Instead, this appeal was taken.


author: ALTENBERND, Judge.

text:
    Erin STRANEY, Appellant, v. Brian Lee FLOETHE, Appellee.
    No. 2D10-121.
    District Court of Appeal of Florida, Second District.
    April 8, 2011.
    Cynthia L. Greene of Law Offices of Greene, Smith & Associates, P.A., Miami; and Fried & Fried, P.A., Fort Myers, for Appellant.
    James R. Long of James R. Long, P.A., Fort Myers, for Appellee.
   ALTENBERND, Judge.

Erin Straney appeals an order entitled “Supplemental Final Judgment of Dissolution of Marriage” that is actually a post-judgment order modifying child custody. Because the order appears to have applied the wrong law, we reverse and remand for further proceedings.

Ms. Straney and Brian Lee Floethe divorced in August 2007 after resolving all significant issues in a marital settlement agreement. In that agreement, Ms. Stra-ney was designated the primary residential custodian of the couple’s young daughter and Mr. Floethe was given a visitation schedule.

Almost immediately the parties had difficulties complying with the schedule. Without detailing the evidence, Ms. Stra-ney and Mr. Floethe have different religious beliefs and lifestyles, and Mr. Floethe claims that Ms. Straney has unilaterally chosen not to allow Mr. Floethe to have contact with the daughter. Ms. Straney admitted she has restricted contact when she believes that contact would conflict with the values she is attempting to teach the daughter.

As a result, nine months after the entry of the final judgment, Mr. Floethe filed a petition to modify the child custody arrangement. The petition alleged a material and substantial change in circumstances. After conducting a hearing, the trial court entered an order modifying the custody arrangement to give Mr. Floethe more time with his daughter. The order establishes a parenting plan under the new statute, section 61.13(3), Florida Statutes (2008), and modifies the parties’ time-sharing with the child. The order does not expressly find that the modification is supported by a substantial, material, and unanticipated change in circumstances. Instead, it recites that the trial court considered all the factors under section 61.13(3) without an explanation as to how those factors supported the modification. Ms. Straney moved for rehearing, but the trial court declined to give any additional explanation for its decision except to explain that Ms. Straney’s religious faith played no part in the court’s decision.

It is well established that an order modifying child custody must be based on a determination that: (1) a substantial and material change in circumstances has occurred since the entry of the final judgment, (2) it is in the child’s best interest to modify custody, and (3) the change in circumstances was not reasonably contemplated when the trial court entered the original final judgment. See Wade v. Hirschman, 903 So.2d 928, 931, n. 2 (Fla.2005). In making the modification, the court must also consider the factors in section 61.13(3). The case law does not require the trial court to enter detailed findings under these factors. See, e.g., Julian v. Bryan, 710 So.2d 1037, 1038 (Fla. 2d DCA 1998) (“Although a trial court does not have to give written reasons discussing each factor to be considered in determining the best interests of the child, the record should support that it is in the best interest of that child.”); Adams v. Shiver, 890 So.2d 1199, 1200-01 (Fla. 1st DCA 2005) (“The trial court is not required to delineate in its final order everything it considered in its resolution of each contested fact.”). Nevertheless, when the parties request rehearing and the case involves issues as sensitive as religion, additional findings are helpful to both the parties and the appellate court to better understand the trial court’s reasons for exercising its discretion. See, e.g., Flint v. Fortson, 744 So.2d 1217, 1219 (Fla. 4th DCA 1999) (“Even where specific findings are not mandatory, they are always desirable and ‘helpful to reviewing courts.’ ”) (quoting Hardwick v. Hardwick, 710 So.2d 124, 125 (Fla. 4th DCA 1998)).

In this case, the trial court did not make an express finding that a substantial, material, and unanticipated change in circumstances had occurred. The record does not permit us to conclude that such a finding is implicit in this order. Accordingly, it appears from the record that the trial court applied the wrong law and did not require Mr. Floethe to prove the substantial and material change in circumstances.

Accordingly, we reverse and remand to the trial court for further proceedings. The trial court is free to rely on the evidence that it has already received and to use its own discretion in determining whether additional evidence would be useful before entering an order under the correct law.

Reversed and remanded.

DAVIS and WALLACE, JJ., Concur.


author: GRIFFIN, J.

text:
    Maureen FAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-796.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    James S. Purdy, Public Defender, and Christopher S. Quarles and Colby Nicole Ferris, Assistant Public Defenders, Dayto-na Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Maureen Fay [“Fay”] appeals her judgments and sentences for trafficking in twenty-eight grams or more of oxycodone and possession of drug paraphernalia. Fay argues that the trial court erred by denying her motions for judgment of acquittal based upon entrapment.

We conclude that the trial court did not err by denying the motions for judgment of acquittal based upon entrapment. First, with respect to objective entrapment, the evidence presented at trial does not establish the outrageous conduct on the part of law enforcement or the confidential informant that would render the prosecution of Fay for having sold the pills a due process violation. Second, because there existed a dispute of facts regarding the issues of inducement and predisposition, the trial court properly submitted the evaluation of subjective entrapment to the jury.

AFFIRMED.

MONACO, C.J. and TORPY, J., concur.


author: KHOUZAM, Judge.

text:
    J.W.E., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1171.
    District Court of Appeal of Florida, Second District.
    April 8, 2011.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

J.W.E. appeals a juvenile disposition order withholding adjudication and placing him on probation. We reverse.

J.W.E. was riding his bicycle during the early evening on December 17, 2009, when he was stopped by law enforcement because his bicycle did not have lights. During the stop, the officer sought J.W.E.’s consent to search. Apparently believing he had obtained consent, the officer conducted a search of J.W.E.’s person. The search revealed marijuana. J.W.E. was charged with committing the delinquent act of possession of not more than 20 grams of marijuana based on evidence obtained during the search.

J.W.E. filed a motion to suppress the physical evidence obtained during the search, arguing that he had been illegally detained and searched. At the hearing on the motion to suppress, the officer who searched J.W.E. initially testified that “he asked permission to search [J.W.E.] and [J.W.E.] replied in the affirmative yes.” The officer thereafter explained: “I said ‘Do you mind if I search you?’ And he said yes.”

The court denied the motion to suppress. J.W.E. then entered a plea to the delinquent act of misdemeanor possession of marijuana, reserving the right to appeal the dispositive ruling.

Here, the justification for the search was the consent exception to the warrant requirement. But, as in V.H. v. State, 908 So.2d 321 (Fla.2d DCA 2005), the officer’s testimony at J.W.E.’s suppression hearing did not unequivocally establish that J.W.E. consented to the warrantless search. Indeed, the officer’s testimony that J.W.E. answered “yes” when asked “Do you mind if I search you,” tended to establish that J.W.E. did not consent. Because the evidence did not unequivocally establish J.W.E.’s consent, the motion to suppress should have been granted.

Reversed.

WHATLEY and KELLY, JJ„ Concur.

      . We appreciate the court’s thoughtful analysis in addressing the multiple arguments raised during the hearing on the motion to suppress.


text:
    Russell HIGHTOWER, Sandra Hightower and Derek Hightower, Appellants, v. ESTATE OF Louise LYMAN and Woodmen of the World Life Insurance Society, Appellees.
    No. 2D10-3884.
    District Court of Appeal of Florida, Second District.
    April 8, 2011.

      John P. Fleck, Jr., Bradenton, for Appellants.
    No appearance for Appellees.
   DAVIS, Judge.

Russell Hightower, Sandra Hightower, and Derek Hightower challenge the trial court’s interlocutory order granting the Estate of Louise Lyman’s motion to transfer venue of the Hightowers’ action against the Estate and Woodmen of the World Life Insurance Society. Because the Estate failed to meet its burden of successfully challenging the Hightowers’ choice of venue, we reverse.

The Hightowers’ complaint sought a declaratory judgment stating that they were entitled to certain monetary funds that were derived from the value of surrendered life insurance certificates. The funds had been in Woodmen’s possession, and the Hightowers alleged that Woodmen wrongfully paid the funds to the Estate. The Hightowers also alleged that prior to this payment, the parties had tentatively agreed that the funds should be posted with the Manatee County Clerk of Court or deposited into a Manatee County bank account pending the outcome of the declaratory action. The Hightowers also sought damages against Woodmen stemming from Woodmen’s improper payment of the funds. With respect to this claim, the Hightowers’ complaint specifically stated that “Woodmen wrongfully paid those funds actually belonging to the Hightowers to the Estate of Louise Lyman ... without legal right, title, or authority” and that “these funds were due and owing to the Hightowers and the funds were due and payable in Manatee County, Florida.”

The Hightowers brought this suit in Manatee County. The Estate then moved to dismiss or in the alternative to change venue to Sarasota County. In support of the Estate’s motion to change venue, the personal representative of the Estate presented his own affidavit, in which he swore that Louise Lyman had been a resident of Sarasota County prior to her death, that probate for the Estate had been opened in Sarasota County, and that the personal representative was a resident of Sarasota County. In opposition, the Hightowers argued that in suits involving more than one defendant, venue is proper for all defendants where it is proper for any one defendant. The Hightowers also argued that venue was proper in Manatee County as to Woodmen because their cause of action against Woodmen accrued in Manatee County where the funds at issue were due to be — but were not — paid to the Hightow-ers.

The trial court, however, determined that “[b]ased upon th[e] affidavit ... the defendant has successfully challenged venue, and ... the burden then indeed shifts to the plaintiff for the court to determine if venue in Manatee County is proper.” The court concluded that the Hightowers’ allegation “that a check or insurance payment was potentially going to be sent to an address in Manatee County does not sufficiently establish venue.” We disagree with both of these determinations.

“It is the plaintiffs prerogative to initially select the venue in accordance with the applicable venue statute; the burden of pleading and proving that venue is improper is upon the defendant.” Eth-Wha, Inc. v. Blankenship, 483 So.2d 872, 873 (Fla. 2d DCA 1986); see also Breed Techs., Inc. v. AlliedSignal Inc., 861 So.2d 1227, 1230 (Fla. 2d DCA 2003) (“It is the defendant’s burden to demonstrate that the plaintiffs venue selection was improper.”); Tropicana Prods., Inc. v. Shirley, 501 So.2d 1373, 1375 (Fla. 2d DCA 1987) (“[O]nce a defendant has challenged venue with an affidavit controverting a plaintiffs venue allegation, the burden is upon the plaintiff to prove that the selection of venue is proper.”).

Here, the trial court first erred in determining that the Estate met its initial burden of showing that the Hightowers’ choice of venue was improper. Although the Estate did present the affidavit of the personal representative properly challenging venue as to the Estate, it completely failed to address venue as to the allegations against Woodmen. See § 47.041, Fla. Stat. (2010) (“Actions on several causes of action may be brought in any county where any of the causes of action arose.”); see also P.V. Holding Corp. v. Tenore, 721 So.2d 430, 431 (Fla. 3d DCA 1998) (“It is well established that where venue is proper in more than one county, the choice of forum rests with the plaintiff.”). Because the Estate did not successfully challenge venue as to Woodmen — or even raise the issue, for that matter — the burden should never have shifted back to the Hightowers to prove that their initial venue selection was proper.

However, even if it somehow could be said that the Estate properly challenged venue in this case and that the burden of proof then shifted to the High-towers, we conclude that the Hightowers successfully met their burden of proving that venue was proper as to Woodmen in Manatee County because that is where the cause of action against Woodmen accrued. See § 47.051 (“Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.” (emphasis added)); cf. Oliver v. Severance, 542 So.2d 408, 410 (Fla. 1st DCA 1989) (“ ‘A cause of action for a breach of an obligation to pay under an insurance policy arises at the place where the insurer is to pay the loss, and ... it is presumably to be made at the residence of the insured, and therefore a cause of action arises and is maintainable in the county of the insured’s residence where the insurer fails to pay in such county.’ ” (quoting 44 Am. Jur. 2d Insurance § 1872, at 870 (1982))).

We do recognize that the plaintiffs choice of forum “is not paramount” and that it “will not be honored where the convenience of the parties or witnesses, or the interests of justice, require the action to be transferred.” See P.V. Holding, 721 So.2d at 431. However, those considerations were neither raised by the Estate below nor addressed by the trial court. But given the fact that the change of venue sought is within the same circuit from Manatee County to Sarasota County and considering the proximity of the courthouses as well as the nature of the claims, we conclude that having venue remain in Manatee County will not greatly impinge upon either convenience or justice.

Accordingly, we reverse and remand for further proceedings.

ALTENBERND and WALLACE, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Donald CONIONILLI, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3495.
    District Court of Appeal of Florida, Second District.
    April 8, 2011.

      Donald Conionilli, pro se.
   NORTHCUTT, Judge.

Donald Conionilli appeals from an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We affirm the denial, although we articulate a basis different from that relied on by the postconviction court because of an argument raised by Conionilli on appeal.

The record reflects that on April 5,1990, following a jury trial, Conionilli was sentenced as a habitual violent felony offender to life in prison with a fifteen-year minimum-mandatory term for burglary of a dwelling with assault or battery. This court affirmed the conviction and sentence, Conionilli v. State, 587 So.2d 1333 (Fla. 2d DCA 1991) (table decision), with the mandate issuing on October 21,1991.

In the instant proceeding, Conionilli filed a one-claim rule 3.850 motion alleging ineffective assistance of counsel. He claimed that during plea negotiations, counsel transmitted the State’s plea offer — thirty years’ imprisonment followed by forty years’ probation — and also informed him that if instead he went to trial and lost, he would be eligible for release after serving fifteen years. Because the latter alternative sounded more advantageous, Conionilli opted to proceed to trial. He argued in his motion that release after fifteen years sounded all the more real when the trial court used such phrasing as “he shall not be eligible for release for fifteen years” in describing the minimum-mandatory provision even as the court pronounced a sentence of “life in prison.” Conionilli alleged that he had not raised this issue earlier because it was only after serving fifteen years and making inquiries of the Parole Commission and the Department of Corrections (DOC) that he became aware that he was not eligible for early release due to his life sentence. Conionilli argued that the information from the authorities was a newly discovered fact such that his claim should not be time-barred.

The postconviction court ruled that because Conionilli filed his motion after the issuance of the supreme court’s opinion in Ey v. State, 982 So.2d 618 (Fla.2008), his claim was controlled by Ey and was therefore time-barred. On appeal, Conionilli argues that this court should establish a two-year post-Ey window analogous to that set by the supreme court in State v. Green, 944 So.2d 208 (Fla.2006), for claims of failure to be informed of the immigration consequences of a plea. Conionilli argues that if such a window had been available to him, his motion would have been timely, because Ey was issued on February 28, 2008, and his motion was served from DOC on September 25, 2008.

We conclude, however, that even if a two-year post-Ey window existed, Conion-illi would not be able to avail himself of it. Conionilli’s sentencing took place on April 15, 1990, and 165 days of jail credit were awarded. Thus, the fifteen-year minimum-mandatory period began on October 22, 1989. The last day of the fifteen-year period was therefore October 21, 2004. However, the documentation attached to Conionilli’s motion indicates that the earliest inquiry he made of the correctional authorities was sometime around January 5, 2008, which is three years and seventy-six days following the end of the fifteen-year minimum-mandatory term. Conionil-li fails to explain why, if he believed from as early as the plea and sentencing stage that he would be released after fifteen years, he waited over three years after the end of that period to begin making inquiries of the correctional authorities.

This chronology is similar to one that caused the supreme court to define a limitation on Green’s two-year window. See Canseco v. State, 52 So.3d 575 (Fla.2010). Green concerned the trial court’s alleged failure to advise the defendant that his plea would render him subject to deportation as required by Florida Rule of Criminal Procedure 3.172(c)(8). 944 So.2d 208. Prior to Green, the two-year clock for filing such a claim began running “when the defendant has or should have knowledge of the threat of deportation based on the plea.” Peart v. State, 756 So.2d 42, 46 (Fla.2000). The court in Green receded from Peart, holding that the default two-year clock of rule 3.850(b) would apply: the claim “must be brought within two years of the date that the judgment and sentence ... become final.” Green, 944 So.2d at 218. The court also created a two-year window from the issuance of Green for “defendants whose cases are already final.” Id. at 219. However, in Canseco the court narrowed the availability of this window, ruling that those defendants who had actual notice of deportation proceedings (such as from federal immigration officials) more than two years before the filing of their rule 3.850 motions to withdraw plea could not avail themselves of the window; the window did not exist to revive such time-barred claims. 52 So.3d at 576.

The change in the law on the time available for filing motions about sentencing consequences is analogous to that in Green and Peart for misadvice about immigration consequences. Under pr e-Ey case law, the two-year clock for filing a claim of misadvice about sentencing consequences began running “when the authorities provided information to the defendant that belied the earlier advice of counsel,” Singleton v. State, 981 So.2d 1259, 1261 (Fla. 2d DCA 2008). Ey, however, held that the movant must raise the claim within two years from when his conviction became final pursuant to rule 3.850(b). 982 So.2d at 625. However, if such a claim is raised prior to the date of the decision in Ey, the pre-Ey timing rule applies to the movant’s benefit. E.g., Flint v. State, 13 So.3d 70, 72 (Fla. 2d DCA 2009); Singleton, 981 So.2d 1259. Unlike Green, however, Ey did not create an extra two-year window. 982 So.2d 618. Conionilli argues that this court should do so.

However, even if we assume that a two-year post-Ey window should exist for claims alleging misadviee about sentencing consequences, we conclude that Conionilli would not be able to avail himself of the window because, having allegedly believed from the pretrial stages that he would be released after fifteen years following an adverse result at trial, he had notice that such an outcome was not forthcoming when he found himself still in prison on October 22, 2004, the day after the minimum-mandatory term expired. At the latest, this is the date that began the two-year motion-filing period under pre-Ey case law. That period ended October 22, 2006, after which time motions relating to counsel’s alleged misadviee about sentencing consequences were time-barred. Because Conionilli failed to meet this deadline for filing his rule 3.850 motion, his claim would not have been timely even if a two-year post-Ey window existed. Cf. Canseco, 52 So.3d 575. The order on appeal is therefore affirmed.

Affirmed.

VILLANTI and LaROSE, JJ., Concur.

      . Conionilli's claim — that release during his lifetime would be possible even with a "life sentence” — is at least initially plausible in that parole for a life sentence did exist until several years prior to Conionilli’s offense, see § 947.16(l)(d), Fla. Stat. (1983), and that release options other than parole existed as of the time of his offense, see § 921.001(11), Fla. Stat. (1989). In reality, however, the one potentially applicable option, conditional release, see § 921.001(1 l)(e), Fla. Stat. (1989), does not apply to life sentences. This is because conditional release is dependent on the prisoner’s reaching a "tentative release date," § 947.1405(2), Fla. Stat. (1989), which is in turn defined in the gain-time statute, § 944.275(3)(a), Fla. Stat. (1989). However, such a date does not exist for life sentences because it is defined only for sentences that are terms of years. Id.; Tal-Mason v. State, 700 So.2d 453, 455-56 (Fla. 4th DCA 1997).

      . Conionilli's first inquiry to the Parole Commission, according to a letter he attached to his motion, was dated January 22, 2008; somewhat confusingly, the response from the Commission is dated January 5, 2008. The discrepancy does not affect our analysis. Co-nionilli also inquired of DOC on February 13, 2008, and received a response dated February 14.

      . Under the two-year deadline defined in rule 3.850(b), Conionilli’s motion was clearly untimely. See Beaty v. State, 701 So.2d 856, 857 (Fla.1997) (holding that the two-year period for filing a motion for postconviction relief begins to run upon issuance of District Court of Appeal’s mandate on direct appeal).


text:
    Peguy JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2583.
    District Court of Appeal of Florida, Second District.
    April 8, 2011.
   PER CURIAM.

Peguy Joseph appeals an order dismissing his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. The order, which was dated April 19, 2010, informed Mr. Joseph that his motion was facially insufficient, dismissed the motion without prejudice, and, citing Spera v. State, 971 So.2d 754 (Fla.2007), granted Mr. Joseph thirty days to file a facially sufficient claim. The order also advised Mr. Joseph that he “may not appeal until such time as this Court has entered a final Order.” Despite this admonition, Mr. Joseph prematurely filed this appeal. Accordingly, this appeal is dismissed as an appeal from a nonfinal and nonappealable order. See Williams v. State, 884 So.2d 374, 375 (Fla. 2d DCA 2004) (explaining that a dismissal of a pleading with leave to amend “renders the order nonfinal and nonappealable”).

We also observe that more than two years had elapsed from the date Mr. Joseph’s judgment and sentence became final to the time the trial court entered its nonfinal order. Accordingly, the two-year time limitation for filing a motion for post-conviction relief pursuant to rule 3.850 has expired.

We recognize the possibility that Mr. Joseph might have filed an amended motion prior to the expiration of the thirty days he was given to do so by the trial court; there is no indication in the appellate record one way or the other. If he has done so, on remand, the trial court may consider his amended motion on its merits. If he has not, the trial court shall enter a final order denying Mr. Joseph’s motion for postconviction relief. See Bloye v. State, 28 So.3d 137, 139 (Fla. 2d DCA 2010) (holding that after the expiration of the two-year time limit, and having offered the defendant the opportunity to file an amended motion pursuant to Spera, the trial court had the authority to enter a final order on the merits when no amended motion was received).

Dismissed.

KELLY, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Channing James MADISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2591.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Channing James Madison appeals an order requiring him to pay $1,400 for competency evaluations ordered by the court. The State correctly acknowledges that this cost should not have been assessed against Madison. See § 916.115, Fla. Stat. (2010); also cf. W.Z. v. State, 35 So.3d 51 (Fla. 5th DCA 2010). Accordingly, we reverse with directions that the trial court strike that portion of its order assessing these costs against Madison.

REVERSED AND REMANDED WITH DIRECTIONS.

SAWAYA, LAWSON, and JACOBUS, JJ., concur.


author: LaROSE, Judge.

text:
    Ricardo ROCA, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2933.
    District Court of Appeal of Florida, Second District.
    April 8, 2011.
   LaROSE, Judge.

Ricardo Roca appeals the denial of his motion to correct illegal sentence. See Fla. R.Crim. P. 3.800(a). Mr. Roca was convicted of kidnapping (count 1) and three counts of sexual battery with use of force not likely to cause serious injury with the offense being committed by more than one person during the same criminal episode (counts 6, 7, and 8). See §§ 787.01(2), 794.023(2)(a), Fla. Stat. (1991); § 794.011(5), Fla. Stat. (Supp.1992). The trial court sentenced Mr. Roca as a habitual offender to concurrent life terms on counts 1, 6, and 8 and thirty years’ imprisonment on count 7.

In his rule 3.800(a) motion, Mr. Roca claims that his life sentences on counts 6 and 8 are illegal because they are second-degree felonies for which the maximum penalty as a habitual felony offender is thirty years. The postconviction court summarily denied the motion. It reasoned that counts 6 and 8 were first-degree felonies because Mr. Roca was charged with violating section 794.023, which enhances second-degree sexual batteries to first-degree felonies.

The State properly concedes that the postconviction court erred in reclassifying the second-degree felony sexual battery convictions to first-degree felonies. Section 794.023 is a penalty enhancement statute. Newman v. State, 738 So.2d 981, 983 (Fla. 2d DCA 1999). Mr. Roca qualified to be sentenced for these second-degree felonies to a maximum of thirty years as a habitual felony offender. See § 775.084(4)(a)(2), Fla. Stat. (1991).

Perhaps the postconviction court relied upon the 2010 version of section 794.023 which “reclassifies” offenses of sexual battery committed by more than one person. The legislature changed the statute from a penalty enhancement statute to a reclassification statute in 1999. Ch. 99-172, § 2, at 965, Laws of Fla.

However, Mr. Roca must be sentenced under the laws in effect at the time of the offense. See Vonador v. State, 857 So.2d 323, 324 (Fla. 2d DCA 2003) (stating that “it is axiomatic that a criminal sentence is governed by the laws in effect at the time of the offense”).

Because the 1991 version of section 794.023 was an enhanced penalty statute, Mr. Roca’s second-degree felony convictions are properly enhanced to first-degree felonies under the habitual felony offender statute, not first-degree felonies reclassified to life felonies.

We reverse the sentences imposed on counts 6 and 8 and remand with instructions to amend the sentencing documents to reflect thirty-year habitual felony offender sentences for those offenses. The judgment should also be amended to reflect that counts 6, 7, and 8 are second-degree felonies. Mr. Roca need not be present for these ministerial acts.

Reversed and remanded with instructions.

WHATLEY and WALLACE, JJ., Concur.


text:
    Darin CHRISTOPHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4273.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    Bernard F. Daley, Jr., of The Daley Law Office, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Darin Christopher appeals from an order denying his pro se Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief as successive. The denial order states that the 3.850 motion improperly raises the same issue that Christopher previously raised in a motion to withdraw plea, filed pursuant to Florida Rule of Criminal Procedure 3.170(0- Christopher’s 3.850 motion alleges “newly discovered evidence” in the form of recanted testimony from a State’s witness. The State concedes that this issue was not raised in the prior 3.170(0 motion, and that the 3.850 motion should have been considered on the merits.

Accordingly, we reverse and remand for consideration of the 3.850 motion on the merits.

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


text:
    Bryan Dwayne JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-104.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    Bryan Dwayne Johnson, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the rule 3.850 motion in Case No. 2004-01011-CFAWS in the Circuit Court in and for Volusia County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


text:
    Dewayne R. McLENDON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-316.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    Dewayne R. McLendon, Sneads, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Dewayne R. McLendon [“McLendon”] appeals the denial of his Rule 3.800(a) motion in which he argued that sentences he received in Hernando County are illegal.

On October 23, 2007, the Defendant pled no contest to two counts of uttering a forged check and received two concurrent terms of four years’ incarceration in Her-nando County. Thirteen days later, he was sentenced in Hillsborough County for violation of probation.

On December 8, 2010, McLendon filed the instant rule 3.800(a) motion, asserting that his Hillsborough and his Her-nando County sentences are being applied consecutively by the Florida Department of Corrections in violation of his plea agreement. He contends that it was a condition of his plea agreement that his concurrent four-year sentences in Hernan-do County were to run concurrently with the Hillsborough sentence. This claim is not cognizable under rule 8.800(a) because a breach of a plea agreement does not make a sentence illegal. Claims of a plea agreement violation must be addressed by other procedural means, and it appears the time has passed for this to be done.

McLendon has, however, also asserted that the trial court announced at sentencing that the Hernando sentences were to be concurrent with the Hillsborough sentence. If such were indeed a part of the court’s sentence, we see no reason why the sentence should not be calculated as the Hernando County court intended.

In denying McLendon’s motion, on the ground that it was “illogical,” the trial court remarked in its order that the “record is of no avail” to McLendon. The court did not, however, attach any portion of it — not the plea agreement, the sentencing hearing, or the judgment and sentence. Nevertheless, as we explained in Beard, v. State, 27 So.3d 186 (Fla. 5th DCA 2010), in order for a rule 3.800(a) movant to comply with his special duty to demonstrate entitlement to relief on the face of the record, the lack of a transcript of the sentencing hearing is a gap that must be filled by the movant.

As in Beard, because the record before us does not contain the transcript of the sentencing hearing, nor was it attached to McLendon’s motion or the trial court’s order, we must remand the case to the trial court to determine if the transcript is in the record. If it is, the trial court shall either grant the relief requested or attach the portions of the sentencing transcript that refute McLendon’s claim. If the transcript is not in the record, McLendon’s motion shall be denied without prejudice to file an amended motion with the sentencing transcript and other necessary documents attached.

REVERSED and REMANDED.

TORPY and EVANDER, JJ., concur.

      . McLendon did not appeal, nor has he sought timely rule 3.850 relief.


text:
    Phillip WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-511.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    Phillip Williams, Chipley, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

In light of the State’s concession on the issue, we grant the petition for belated appeal. A copy of this opinion will be filed with the lower court and be treated as a notice of appeal in accordance with rule 9.141(c)(5)(D), Florida Rules of Appellate Procedure.

PETITION GRANTED.

MONACO, C.J., and EVANDER, J., concur.


text:
    Larry HONOR, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-566.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    Larry Honor, Century, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying the rule 3.850 motion in case numbers 07-CF-1373 and 09-CF-2056, in the Circuit Court in and for Marion County, Florida. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


text:
    Matthew FELIX, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-606.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    Matthew Felix, Cross City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the Order Denying Defendant’s Motion to Vacate, Set Aside or Correct Sentence Based on Newly Discovered Evidence in case number 96-CF-3528-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

TORPY, LAWSON and COHEN, JJ., concur.


text:
    Anson O. MITCHELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6140.
    District Court of Appeal of Florida, First District.
    April 8, 2011.
    Anson 0. Mitchell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

LEWIS, HAWKES, and ROWE, JJ., concur.