author: VILLANTI, Judge.

text:
    Angel B. AVILA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-316.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2012.
    Rehearing Denied April 30, 2012.

      James Marion Moorman, Public Defender, and Joseph M. Bernstein, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Angel B. Avila seeks review of his convictions and sentences for one count of sexual battery with a deadly weapon and one count of false imprisonment, raising two issues for review. We affirm on both issues raised; however, we write to address Avila’s claim that double jeopardy precluded his conviction for the sexual battery offense.

Avila was charged with sexual battery with a deadly weapon (count 1), aggravated battery with a deadly weapon (count 2), and false imprisonment (count 3) based on events that occurred on June 2, 2009. Avila went to trial in April 2010. At the conclusion of the trial, the jury sent a note to the court saying that it could not reach a unanimous verdict on all of the charges. The note read:

Count One
Initial vote on number one was 5-1. After considerable discussion, we all (6) agree to a lesser charge.
Count 2
All unanimous as to charge.
Count 3
Could not reach unanimous decision.
Final vote, 5-1—
Because of this, one juror has changed their decision on Count one.

After discussion with counsel about the contents of the note, the court returned the jury to the courtroom, read it the Allen charge, and asked the jury to return to its deliberations and see whether it could reach a unanimous verdict on all three charges.

Later, the jury reported to the court that it had reached a “partial” verdict. The court returned the jury to the courtroom, and the foreperson advised the court that “we’re not in agreement on Counts 1 and 3.” However, the jury was able to reach a unanimous verdict as to count 2. After further discussion with the court, the foreperson formally announced on the record that “[w]e are unable to reach a unanimous verdict on Counts 1 and Count 3.” The clerk then published the jury’s unanimous verdict of not guilty as to count 2, the jury was polled as to that count only, and all of the jurors agreed that this was their verdict as to count 2. The verdict form contained a written verdict only as to count 2.

Based on these events, the trial court declared a mistrial as to counts 1 and 3 and set a new trial date for those two counts. Avila was retried on counts 1 and 3 in October 2010, and that jury found him guilty as charged on both counts. The trial court sentenced him to twenty-five years in prison followed by life probation on count 1, and to a concurrent prison term of five years on count 3. Avila now seeks review of both convictions and sentences.

Avila’s primary contention in this appeal is that his conviction for sexual battery with a deadly weapon was obtained in violation of double jeopardy. He recognizes that the Florida Supreme Court has specifically rejected the proposition that a mistrial as a result of a deadlocked jury precludes retrial:

“[W]e reaffirm the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree.”

Rose v. Dugger, 508 So.2d 321, 322 (Fla.1987) (quoting Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984)); see also Lebron v. State, 799 So.2d 997, 1011 (Fla.2001) (holding that “if the trial court ... properly declared a mistrial based upon sufficient record evidence of a hung jury, then double jeopardy does not attach”). Nevertheless, he argues that the jury’s note reflecting its initial unanimous agreement to a lesser charge in a preliminary vote on the sexual battery charge should be binding even though one of the jurors changed his or her mind after that preliminary vote and before the jury returned to the courtroom. We cannot agree with this argument because this preliminary vote did not constitute a “verdict.”

“For a verdict to become valid, ... it must be announced in the courtroom in the presence of the jurors and the accused.” Griffin v. State, 414 So.2d 1025, 1028 (Fla.1982). “No verdict may be rendered unless all of the trial jurors concur in it.” Fla. R.Crim. P. 3.440. And a juror is at liberty to change his or her vote any time before the verdict is actually rendered. See, e.g., Chung v. State, 641 So.2d 942, 946 (Fla. 5th DCA 1994) (holding that when a juror, “before being discharged and while still in the jury box with the jury assembled, expresses that the verdict announced is not his or her verdict, a verdict has not been reached”). Thus, notwithstanding any tentative or preliminary votes that may occur in the jury room, until such time as a specific verdict is announced in the courtroom in the presence of the jurors and the defendant and until the jurors have had an opportunity to affirm or denounce the verdict as both their individual verdict and the verdict of the jury as a whole, an actual verdict has not been rendered so as to trigger the application of double jeopardy.

On the issue of whether a preliminary agreement constitutes a “verdict,” this case is quite similar to this court’s decision in Larrabee v. State, 243 So.2d 432 (Fla. 2d DCA 1971). In that case, the defendant was charged with rape after he knocked the victim down with his van, dragged her into the back of the van, and engaged in a “forcible sexual act” that resulted in “injuries far more serious than permissible sexual foreplay could account for, even among cavemen.” Id. at 433. The jurors could not agree on any form of verdict, but they all agreed that Larrabee “was guilty of assault and battery ‘with intent to commit sexual intercourse.’ ” Id. at 434. Larra-bee argued that the words after “assault and battery” were surplusage and that a verdict should have been entered for assault and battery; however, the trial court did not enter a verdict. Id. Instead, it declared a mistrial and held a new trial on the charge of rape. Id. Larrabee was convicted as charged at the retrial.

On appeal, Larrabee argued that his conviction violated double jeopardy because of the previous jurors’ agreement to a lesser charge after the first trial. Id. However, this court disagreed, noting that no verdict had been rendered in the first trial despite the jury’s agreement on certain aspects of the charge and therefore that Larrabee was not “twice put in jeopardy” on the rape charge. Id.

Here, as in Larrabee, the jurors apparently reached some type of preliminary agreement to convict Avila of a lesser charge than sexual battery with a deadly weapon. However, there is nothing in the record to show what that lesser charge was, and the record is clear that one juror changed his or her vote prior to the jury sending even the initial note to the court. Therefore, no “verdict” was ever rendered on the sexual battery charge, and, under Florida law, double jeopardy did not preclude the trial court from retrying Avila on the charged offense of sexual battery with a deadly weapon.

Recently, however, the United States Supreme Court accepted certiorari to review a split among the states concerning whether “partial” verdicts were subject to double jeopardy analysis. See Blueford v. State, 2011 Ark. 8, cert. granted, — U.S. -, 132 S.Ct. 397, 181 L.Ed.2d 255 (2011). In that ease, Blueford was charged with capital murder. Id. at 1. At the close of the evidence, the jury was instructed on capital murder, first-degree murder, manslaughter, and negligent homicide. Id. at 1-2. The jury subsequently sent out a note indicating that it was deadlocked. Id. at 2. The court returned the jury to the courtroom and specifically questioned it on the pending charges. The jury responded that it was unanimous against capital murder, unanimous against first-degree murder, but deadlocked on the manslaughter charge. Id. at 3. After further discussion, the court declared a mistrial and rescheduled the trial. Id. at 4.

Prior to the second trial, Blueford filed a motion arguing that double jeopardy precluded retrial on the charges of capital murder and first-degree murder based on the jury’s statements in the courtroom and contending that those statements amounted to an acquittal on those two charges. The trial court denied this motion, and Blueford appealed. The Arkansas Supreme Court affirmed, noting that “a trial ending in a hung jury is not the equivalent of an acquittal for purposes of establishing former jeopardy.” Id. at 7.

However, the Arkansas Supreme Court recognized a split of authority on the issue of whether “partial” verdicts of acquittal preclude further prosecution on the “acquitted” charges. The court explained:

Jurisdictions are split on the issue of partial verdicts. But, the majority of jurisdictions have held that if a single charge includes multiple degrees of offenses, the trial court may not conduct a partial-verdict inquiry as to the offenses included within the charge. See, e.g., [People v.]Richardson, 184 P.3d 755 [(Colo.2008)]; People v. Hall, 25 Ill.App.3d 992, 324 N.E.2d 50 (Ill.App.5th.Dist. 1975); State v. Bell, 322 N.W.2d 93 (Iowa 1982); State v. McKay, 217 Kan. 11, 535 P.2d 945 (Kan.1975); Commonwealth v. Roth, 437 Mass. 777, 776 N.E.2d 437 (Mass.2002); State v. Booker, 306 N.C. 302, 293 S.E.2d 78 (N.C.1982); People v. Hickey, 103 Mich.App. 350, 303 N.W.2d 19 (Mich.Ct.App.1981).
The minority, on the other hand, has held that double jeopardy requires a partial verdict of acquittal as to the greater offenses if the jury is deadlocked only as to the lesser offenses. See, e.g., Stone v. Superior Court, 31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809 (Cal.1982); State v. Tate, 256 Conn. 262, 773 A.2d 308 (Conn.2001); State v. Pugliese, 120 N.H. 728, 422 A.2d 1319 (N.H.1980); Whiteaker v. State, 808 P.2d 270 (Alaska Ct.App.1991). The minority of jurisdictions that accept partial verdicts seem to focus on the fact that there can be no “manifest necessity” warranting the declaration of a mistrial where the circuit court makes no inquiry into the jury’s deliberations as to the greater offenses. People v. Anderson, 47 Cal.4th 92, 97 Cal.Rptr.3d 77, 211 P.3d 584 (Cal.2009).

Blueford, 2011 Ark. at 10-11. The Arkansas court noted that it had previously rejected the theory of “partial” verdicts, see Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992), and it found no compelling reason to recede from that decision. Blue ford, 2011 Ark. at 11. Therefore, the court found that the trial court properly denied Blueford’s motion to dismiss on double jeopardy grounds. The United States Supreme Court subsequently accepted review.

We can find no Florida case addressing the precise issue discussed in Blueford, nor have the parties directed us to any. We are mindful that the Supreme Court has stated that because “a jury speaks only through its verdict, its failure to reach a verdict cannot — by negative implication — yield a piece of information that helps put together the trial puzzle.” Yeager v. United States, 557 U.S. 110, 129 S.Ct. 2360, 2367, 174 L.Ed.2d 78 (2009). This statement cuts against the theory that a jury deadlocked on a lesser charge has “acquitted” a defendant of the greater charge. Further, this court’s decision in Larrabee seems to hold that a deadlocked jury returns no verdict, regardless of any tentative agreement the jury may have had on any available lesser offenses. In light of these authorities, we believe that Florida would align itself with the majority of jurisdictions which hold that a jury deadlocked on a lesser charge does not return an “acquittal” on the charged offense, and thus double jeopardy does not preclude reprosecution of the charged offense.

Accordingly, we hold that double jeopardy did not prevent the State in this case from retrying Avila on the charged offense of sexual battery with a deadly weapon after the jury deadlocked on some unidentified lesser-included offense during its deliberations at Avila’s first trial. In our view, the deadlocked jury did not decide to “acquit” Avila of sexual battery with a deadly weapon; instead, it did not reach a unanimous decision as to the disposition of that charge. Therefore, we affirm Avila’s convictions and sentences.

Affirmed.

NORTHCUTT and BLACK, JJ., Concur.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). See also State v. Bryan, 290 So.2d 482, 484 (Fla.1974); Fla. Std. Jury Instr. (Crim.) 4.1.

      . While Avila did not raise this argument below, a violation of double jeopardy constitutes fundamental error that may be raised for the first time on appeal. See, e.g., Gisi v. State, 848 So.2d 1278, 1281 (Fla. 2d DCA 2003); Johnson v. State, 747 So.2d 1027, 1028 (Fla. 2d DCA 1999).

      . We note that "it is not appropriate for this court, as a matter of state constitutional law, to depart from a recent United States Supreme Court ruling under a virtually identical federal constitutional clause unless we are convinced that aspects of Florida’s constitution, law, or announced public policies clearly justify such a departure.” State, Dep't of Health & Rehabilitative Servs. v. Cox, 627 So.2d 1210, 1217 (Fla. 2d DCA 1993). We also note that decisions from the United States Supreme Court concerning the double jeopardy clause are not necessarily binding on Florida courts. See, e.g., Lebron, 799 So.2d at 1011 (noting in a case concerning double jeopardy that the Florida Supreme Court "has the power and authority to construe our Florida Constitution in a manner which may differ from the manner in which the United States Supreme Court has construed a similar provision in the federal constitution” (quoting Rose, 508 So.2d at 322)). Therefore, while the Supreme Court's ultimate decision in Blueford will be highly persuasive authority on the issue of partial verdicts, it will not necessarily be binding on Florida courts.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    William J. PLOTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5719.
    District Court of Appeal of Florida, Second District.
    March 2, 2012.
    Rehearing Denied April 4, 2012.

      William J. Plott, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

William J. Plott appeals the order denying his motion to correct an illegal sentence. Mr. Plott maintains that he was entitled to a jury trial in 2005 to determine the factual grounds for his resentencing under Heggs v. State, 759 So.2d 620 (Fla.2000), because it resulted in an upward departure sentence of life imprisonment. Despite the discussion in State v. Fleming, 61 So.3d 399 (Fla.2011), which arguably supports his position on this issue, we conclude that Mr. Plott is not entitled to raise this issue under Florida Rule of Criminal Procedure 3.800(a).

Mr. Plott is serving four life sentences for sexual batteries committed in July 1996. A jury convicted him of these offenses in November 1997. The trial court initially sentenced Mr. Plott to life imprisonment for these offenses under the 1995 guidelines. We affirmed the direct appeal of his judgments and sentences in 1999. See Plott v. State, 731 So.2d 1285 (Fla. 2d DCA 1999) (table decision). In 2000, the supreme court held that the 1995 guidelines were unconstitutional. See Heggs, 759 So.2d 620. Thus, Mr. Plott was resen-tenced for these offenses in 2005.

By the time of the resentencing, the United States Supreme Court had issued its opinions in both Apprendi and Blakely. The trial judge and the lawyers at the resentencing discussed the effect of these decisions, and the trial court concluded that it could provide grounds for an upward departure sentence without empaneling a new jury. Without conducting a new hearing, the trial court determined from the testimony at the initial trial that the offenses were committed in a manner that was especially heinous, atrocious, or cruel. This ground would authorize an upward departure. See § 921.0016(3)(b), Fla. Stat. (1993). The trial court reimposed the four life sentences as upward departure sentences. Our record strongly suggests that an authorized finder of fact could have concluded that these offenses were especially cruel from this testimony.

Mr. Plott appealed the sentences imposed on resentencing. We affirmed the new sentences. See Plott v. State, 940 So.2d 432 (Fla. 2d DCA 2006) (table decision). In his appeal of the resentencing, he did not argue that the trial court erred by refusing to conduct a jury trial to determine the factual basis for the upward departure. It is noteworthy that the issue of whether a jury was required in this context was a hotly debated issue at that time. See Fleming, 61 So.3d at 404-05.

After this court affirmed his sentences, Mr. Plott did not file another postconviction motion until September 2010, when he filed this motion claiming that his life sentences are illegal. The trial court denied this motion in November 2010, reasoning that the offenses permit sentences of this length and that a procedural error in the imposition of an upward departure sentence is not treated as a ground for relief under rule 3.800(a).

When Mr. Plott appealed the order denying his motion, this court stayed the appeal pending the outcome of a case that was then pending in the supreme court. See Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), review granted, 4 So.3d 677 (Fla.2009), review dismissed, 66 So.3d 912 (Fla.2011). In Isaac, the First District had reversed the summary denial of a postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850 that raised an Apprendi issue similar to the issue that is raised in this case. See Isaac, 911 So.2d at 814-15.

Isaac presented an issue that was similar but not identical to the issue resolved by the supreme court in Fleming, 61 So.3d at 400. In Fleming, the issue was whether the defendant was entitled to relief if the Heggs resentencing occurred after Ap-prendi and the issue was preserved and raised on direct appeal. The supreme court held that Apprendi applied to such a re-sentencing and remanded the case to the First District to determine if the error had been harmless. Id. at 408-09. Thereafter, the Florida Supreme Court dismissed the proceeding in Isaac, concluding that it had resolved the issue in conflict by its decision in Fleming. However, in terms of procedural context and the various rights attendant to litigants, Isaac, an appeal of a rule 3.850 motion, is significantly different from Fleming, which addressed direct appeals after resentencing.

Without regard to whether the holding in Fleming may apply in the context of a motion under rule 3.850, an issue that we do not reach today, we are unconvinced that Fleming requires this court to treat these life sentences as illegal sentences subject to correction under rule 3.800(a). The Florida Supreme Court has held that Apprendi errors are not fundamental and must be preserved for appellate review. See Hughes v. State, 901 So.2d 837, 845 (Fla.2005); McGregor v. State, 789 So.2d 976, 977 (Fla.2001). It has long been the law that procedural errors in sentencing that could have been preserved and raised in direct appeal are not grounds for relief under rule 3.800(a). See Jackson v. State, 29 So.3d 1152, 1154 (Fla. 2d DCA 2010) (holding that a claim that the trial court erroneously imposed an upward departure sentence without written reasons is not cognizable under rule 3.800(a)); Judge v. State, 596 So.2d 73, 77 (Fla. 2d DCA 1991) (en banc) (“Rule 3.800(a) .... is not a vehicle designed to re-examine whether the procedure employed to impose the punishment comported with statutory law and due process.”), approved by Bover v. State, 797 So.2d 1246, 1251 (Fla.2001); Ives v. State, 993 So.2d 117, 120 (Fla. 4th DCA 2008) (holding that a mere deficiency in the procedure employed to impose an enhanced sentence does not in and of itself result in an illegal sentence). Here, the error was a procedural error in sentencing that could have been preserved and raised on direct appeal. Thus, it was not cognizable under rule 3.800(a).

Affirmed.

KHOUZAM and MORRIS, JJ., Concur.

      .Mr. Plott filed a postconviction proceeding prior to the decision in Heggs, which is not relevant to our discussion in this case. See Plott v. State, 846 So.2d 610 (Fla. 2d DCA 2003).

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

      . Review dismissed, 66 So.3d 912 (Fla.2011).


author: WETHERELL, J.

text:
    HEALTHCARE STAFFING SOLUTION, INC., Successor by Merger to StarMed Staffing, Inc., Appellant, v. Helene WILKINSON, by and through Webster Wilkinson, as Legal Guardian of the person and property of Helene Wilkinson, and Webster Wilkinson, individually, and Danielle H. Wilkinson, Individually, and Chavonne A. Wilkinson, Individually, University Medical Center, Inc. and Florida Board of Regents, Appellees.
    No. 1D11-3140.
    District Court of Appeal of Florida, First District.
    March 12, 2012.
    Rehearing Denied May 3, 2012.

      Brian E. Currie and Rhonda B. Boggess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellant.
    Susan L. Kelsey of Kelsey Appellate Law Firm, P.A., Tallahassee; Harvey L. Jay, III and Travase Lloyd Erickson of Saalfield, Shad, Jay, Stokes, Inclan & Stoudemire, P.A., Jacksonville, for Appel-lee University Medical Center, Inc.
   WETHERELL, J.

Appellant seeks review of a final judgment in favor of University Medical Center, Inc. (UMC), in a contribution and equitable subrogation action arising out of a settled medical malpractice case. Appellant argues, and we agree, that the trial court erred in calculating Appellant’s pro rata share of the entire liability for the underlying malpractice claim based on the potential value of the claim rather than the amount paid to settle the claim.

In 1998, Helene Wilkinson sued UMC and the Florida Board of Regents (FBOR) for medical malpractice. The case was settled in 2001 for $6.15 million, with UMC paying $5,950,000 and FBOR paying its sovereign immunity limit of $200,000. UMC thereafter brought a contribution and equitable subrogation action against Appellant for its pro rata share of the settlement. Following a non-jury trial, the trial court ordered Appellant to pay UMC $5,057,500 (which is 85% of the amount paid by UMC), plus prejudgment interest, based on the court’s apportionment of 85% of fault for the malpractice claim to Appellant and 15% of the fault to UMC. The trial court did not apportion any fault to FBOR because it found FBOR’s negligence irrelevant to UMC’s contribution claim against Appellant. Appellant appealed, and in Healthcare Staffing Solutions, Inc. v. Wilkinson, 5 So.3d 726 (Fla. 1st DCA 2009), this court reversed the judgment based on the trial court’s failure to consider FBOR’s fault in determining Appellant’s “pro rata share of the entire liability” under section 768.31(2)(b), Florida Statutes (1997).

On remand, after a non-jury trial, the trial court apportioned fault for the underlying malpractice claim as follows: 70% to FBOR, 25.5% to Appellant, 4.5% to UMC, and 0% to Wilkinson. The trial court concluded that it would be inconsistent with this court’s prior opinion to construe the phrase “entire liability” in section 768.31(2)(b) to mean the amount of the settlement and, instead, concluded that the phrase meant the potential value of the underlying malpractice claim. Then, based on its finding that the reasonable value of the malpractice claim was $15 million, the trial court determined that Appellant’s pro rata share of this “entire liability” was 25.5%, or $3,825,000, and alternatively, that UMC was entitled to judgment in that amount based on its equitable subrogation claim. The trial court thereafter entered a judgment, and then a corrected judgment, in favor of UMC for $3,825,000, plus prejudgment interest of approximately $2.5 million. Appellant timely appealed the corrected judgment to this court.

Appellant does not contest the trial court’s finding that the potential value of the underlying malpractice claim was $15 million, nor does it contest the trial court’s apportionment of fault. Rather, the narrow issue framed in this appeal is whether the phrase “entire liability” in section 768.31(2)(b) means the potential value of the underlying malpractice claim (as determined by the trial court and urged by UMC) or the amount of the settlement (as urged by Appellant). This is an issue of statutory interpretation, which we review de novo. See Healthcare Staffing Solutions, 5 So.3d at 729.

Contribution is a statutory remedy, the parameters of which are set forth in section 768.31, Florida Statutes. Id. The particular provision implicated in this case is paragraph (2)(b), which provides:

The right of contribution exists only in favor of a tortfeasor who has paid more than her or his pro rata share of the common liability, and the tortfeasor’s total recovery is limited to the amount paid by her or him in excess of her or his pro rata share. No tortfeasor is compelled to make contribution beyond her or his own pro rata share of 'the entire liability.

§ 768.31(2)(b), Fla. Stat. (1997).

The first sentence of this statute focuses on the contribution plaintiff (here, UMC), whereas the second sentence focuses on the contribution defendant (here, Appellant). There is no dispute that UMC and Appellant had a common liability to Wilkinson in the malpractice case and that UMC paid more than its pro rata share of that liability. Thus, UMC meets the criteria in the first sentence of paragraph (2)(b) and has a right of contribution against Appellant. The dispute in this appeal arises under the second sentence, which caps the amount Appellant is required to pay at its “pro rata share of the entire liability.”

We explained in the prior appeal that to determine a contribution defendant’s pro rata share, the trial court must determine:

[1] the amount of the “entire liability,” [2] the identity of each per.son who contributed to the injury that gave rise to the original tort claim, and [3] the percentage of fault attributable to each of those persons.

Healthcare Staffing Solutions, 5 So.3d at 730. The prior appeal focused on the trial court’s failure to apportion fault to all of the tortfeasors responsible for Wilkinson’s injuries (steps 2 and 3). This court’s opinion in the prior appeal did not address the proper amount of the “entire liability” (step 1) except to reject the contention that there are “separate amounts of ‘entire liability’ based on the separate identities of the tortfeasors,” id. at 731, and to note that “the ‘entire liability’ ... refers to the responsibility born[e] by all of the tortfea-sors who contributed to any degree to the original plaintiffs injury.” Id. at 730.

The prior opinion did state that “FBOR’s sovereign immunity should not have entered into the analysis.” Id. at 731. However, contrary to the trial court’s interpretation on remand, this statement had nothing to do with the proper amount of the “entire liability.” Rather, it is clear from the preceding paragraph of the prior opinion that the point of this statement was to emphasize that Wilkinson’s inability to recover more than $200,000 from FBOR should not weigh into the trial court’s apportionment of fault to all of the tortfea-sors, including FBOR. See id. (“Evidence of that person’s acts or omissions is relevant to determining the relative degrees of fault of all the tortfeasors, regardless of whether any party will actually be able to recover money damages from that person.”). Accord Allied-Signal, Inc. v. Fox, 623 So.2d 1180 (Fla.1993) (requiring consideration of percentage of fault of employer in negligence suit against equipment manufacturer for employee’s injury on job even though employer was immune from tort under worker’s compensation law); Fabre v. Marin, 623 So.2d 1182 (Fla.1993) (requiring liability to be apportioned to all participants in an accident, including those not joined as defendants), receded from on other grounds by Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249 (Fla.1995).

Section 768.31 does not define the phrase “entire liability.” Nor was that phrase defined in the Uniform Act on which section 768.31 was based. See Uniform Contribution Among Tortfeasors Act § 1 (1955). Indeed, the commentary on' the provision of the Uniform Act that was codified verbatim in section 768.31(2)(b) explains only that:

This provision is supported by several dozen decisions dealing with contribution in surety and other contract cases, and a court would almost certainly reach the result without the provision. It appears desirable to spell it out.

Uniform Contribution Among Tortfeasors Act § 1(b) cmt. at 6 (1955). Notwithstanding this commentary, our research did not locate a pre-Uniform Act decision that provides any insight as to the meaning of the phrase “entire liability.” Nor have we been able to locate a decision under the Uniform Act that expressly construes that phrase. But cf. City of Tucson v. Superior Court, 165 Ariz. 236, 798 P.2d 374, 379 (1990) (construing the phrase “common liability” in the Arizona version of section 768.31(2)(b) to mean “an amount representing the total damages caused by the negligence of all the defendants” and explaining “[t]his amount can be established either by verdict or through settlement”).

One purpose of section 768.31 was to encourage settlement and avoid lengthy litigation of claims. See Walker v. Virginia Ins. Reciprocal, 842 So.2d 804, 809 (Fla.2003). This purpose would be frustrated if a mini-damages trial were required to determine the “entire liability” in a contribution action arising out of a fully settled case when the contribution defendant is not challenging the reasonableness of the settlement. Accordingly, in these circumstances, consistent with the common understanding of the words “entire” and “liability,” we conclude that the dollar amount paid to settle the underlying claim and to release the tortfeasors from any further liability for the claim represents the “entire liability” for purposes of section 768.31. Indeed, under the circumstances of this case, we fail to see how the potential value of the claim had the case gone to trial is relevant because the amount of the settlement reflects the actual value of the claim to Wilkinson, FBOR, and UMC, by virtue of their agreement to settle the case for that amount.

This is not to say that the potential value of the underlying claim is irrelevant in every contribution action. Indeed, the contribution statute provides that a contribution plaintiff “is not entitled to recover contribution ... in respect to any amount paid in a settlement which is in excess of what was reasonable.” § 768.31(2)(d), Fla. Stat. (emphasis added); see also Home Ins. Co. v. Advance Mach. Co., 443 So.2d 165, 169 (Fla. 1st DCA 1983) (“If the defendant is successful in showing the amount paid in settlement was unreasonable or excessive, his liability for contribution will be reduced to a pro rata share of that amount which would in the jury’s mind be determined reasonable.”). Thus, if the contribution defendant contends that the settlement was excessive, it is appropriate to consider the potential value of the claim, and other factors, in determining the reasonableness of the settlement. See id. at 168-69. However, where, as here, the contribution defendant has not challenged the reasonableness of the settlement, the potential value of the claim had the case gone to trial is irrelevant to the determination of the amount owed by the contribution defendant. See Ogle v. Craig Taylor Equip. Co., 761 P.2d 722, 726 (Alaska 1988); but cf. Pike Industries, Inc. v. Hiltz Constr., Inc., 143 N.H. 1, 718 A.2d 236, 239-40 (1988) (construing the term “obligation” in New Hampshire’s contribution statute and affirming finding that the obligation subject to apportionment in that case was $250,000, rather than the $175,000 settlement because the reduced settlement amount took into account the 30% of the fault attributable to the original plaintiff).

Accordingly, in this case, the trial court erred in determining that the “entire liability” for the underlying malpractice claim was $15 million rather than $6.15 million. The effect of this error was that Appellant was ordered to pay more than its pro rata share of the entire liability, which is 25.5% of the $6.15 million, or $1,568,250. See § 768.31(2)(b), Fla. Stat. (1997) (“No tort-feasor shall be compelled to make contribution beyond her or his pro rata share of the entire liability.”). The trial court made no findings to suggest that the higher pro rata share reflected in the corrected judgment — $3,825,000, which equates to 62.2% of the $6.15 million settlement — was based on equitable considerations, and thus, we reject UMC’s contention that the judgment can be affirmed on this alternative basis.

In sum, for the reasons stated above, we reverse the corrected judgment and remand for entry of an amended judgment against Appellant for $1,568,250, plus prejudgment interest on this amount, which Appellant properly concedes it owes based on law of the case.

REVERSED and REMANDED with instructions.

BENTON, C.J. and RAY, J., concur.

      . See, e.g., www.dictionary.com (defining “entire” to mean "having all the parts or elements; whole; complete” and defining "liability” to mean "money[] owed; debt[] or pecuniary obligation!]]”); Webster’s Seventh New Collegiate Dictionary (1965) at 277 (defining “entire” to mean "1: having no element or part left out 2: complete in degree: TOTAL”) and 486 (defining "liability” to mean "2: something for which one is liable; esp, pi: pecuniary obligations: DEBTS”).

      . This is also the maximum amount UMC could recover from Appellant on its equitable subrogation claim under the circumstances of this case. Indeed, UMC properly conceded below based on the law of the case implicit in the reversal of the initial judgment that the equitable subrogation claim is subject to the same apportionment analysis as the contribution claim.

      . See, e.g., § 768.31(3)(c), Fla. Stat.; F.H.W & C., Inc. v. Am. Hosp. of Miami, Inc., 575 So.2d 1300, 1304 (Fla. 3d DCA 1991) (noting that “the initial determination of pro rata shares is based on relative degrees of fault, but is still subject to variance by virtue of the equitable principles of Paragraphs 3(b) and 3(c)’’ of section 768.31); and cf. Restatement (Second) of Torts, § 886A, cmt. c. (1979) (discussing language nearly identical to section 768.31(2)(b) and noting that, based on the equitable nature of contribution, "when there are three tortfeasors and one of them is clearly insolvent or beyond the jurisdiction, the amount of contribution fairly allowable between the other two may reasonably be affected and the court may be expected to do what is fair and equitable under the circumstances’’).


author: NORTHCUTT, Judge.

text:
    Carlos FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5666.
    District Court of Appeal of Florida, Second District.
    March 16, 2012.
    Rehearing Denied April 20, 2012.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

We affirm the convictions and sentences on appeal in this case with one minor exception. As pointed out in the brief filed on behalf of Carlos Fernandez pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the thirty-year sentence for home invasion robbery is the maximum allowable sentence. See §§ 812.135(2)(c); 775.082(3)(b), Fla. Stat. (2008). Therefore, we reverse the consecutive term of ten years’ probation on this count only; the probationary term will still apply to the other convictions in circuit court case number CRC09-02073CFAWS-04.

Fernandez’s appellate counsel raised that issue in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In the motion, counsel also raised an issue regarding jail credit. Fernandez had entered a plea in six cases, but he was awarded differing amounts of jail credit. He received 562 days of credit in case CRC09-02073CFAWS-04 but only 92 days in the other five cases.

Both the motion and the argument on appeal contend that Fernandez was “likely” in jail on all cases for a similar period, in which case he should have received more than 92 days’ credit in five cases. Because we cannot discern from the record whether Fernandez was entitled to additional credit in these cases, we affirm on this issue without prejudice to Fernandez’s right to pursue an increase in jail credit by filing a motion under rule 3.800(a). See Dolinger v. State, 779 So.2d 419, 421 (Fla. 2d DCA 2000) (citing State v. Mancino, 714 So.2d 429 (Fla.1998), regarding defendant’s right to jail credit but rejecting claim that defendant was entitled to an unspecified increase that was not discernable from the record; allowing defendant to pursue relief after remand).

Affirmed in part; reversed in part.

CRENSHAW and BLACK, JJ., Concur.


text:
    Adam Lee REPPERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-537.
    District Court of Appeal of Florida, Second District.
    March 16, 2012.
    Rehearing Denied April 19, 2012.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Adam Lee Reppert seeks review of his conviction and sentence for fleeing and eluding a law enforcement officer at high speed, raising two grounds for reversal. We affirm on both grounds, but we write to explain our reasoning on one of the grounds.

On the first day of Reppert’s trial, early in jury selection, the court explained the presumption of innocence to the venire and asked whether any of the prospective jurors disagreed with that concept. One of the prospective jurors responded that he would be wondering during trial what Rep-pert had been doing for the past year and said that he believed that “most likely these individuals who go through the system have been doing some kind of criminal activity for a long time.” Upon further questioning by the court, it was clear that the prospective juror did not know Rep-pert and was simply making a comment based on his beliefs about the criminal justice system in general rather than any specific knowledge of Reppert. In response to this prospective juror’s comment, the trial court gave the entire venire a detailed explanation of the jury’s role in deciding the facts based on the evidence presented at the trial, explained the presumption of innocence again, and pointed out that DNA exonerations demonstrated that not all criminal defendants had actually committed the crimes with which they were charged.

Despite the court’s explanations, Rep-pert moved to strike the venire, arguing that the prospective juror’s comment had insinuated that Reppert had a criminal record. The trial court denied this motion but cautioned counsel for both Reppert and the State to avoid asking further questions of this prospective juror. Despite the remainder of voir dire being uneventful, Reppert renewed his motion to strike the venire on the same basis at the close of jury selection and again before the jury panel was sworn. The trial court denied these renewed motions. In this appeal, Reppert contends that the trial court’s refusal to strike the entire venire was error.

Contrary to Reppert’s claim of trial court “error,” the question before this court is whether the trial court abused its discretion in refusing to strike the venire based on this prospective juror’s comment.

“The decision whether to dismiss any or all jurors lies in the sound discretion of the trial judge.” United States v. Jones, 696 F.2d 479, 492 (7th Cir.1982). “It is within the discretion of the trial court to determine whether remarks made by veniremen during the examination of the panel are prejudicial; and the trial court’s decision not to quash the panel will not be disturbed absent an abuse of that discretion.” State v. Davis, 806 S.W.2d 441, 443 (Mo.Ct.App.1991).

Bauta v. State, 698 So.2d 860, 861-62 (Fla. 3d DCA 1997). When a prospective juror comments on a defendant’s criminal history and expresses some knowledge of the defendant himself, it is an abuse of discretion not to strike the venire. See, e.g., Richardson v. State, 666 So.2d 223, 224 (Fla. 2d DCA 1995); Wilding v. State, 427 So.2d 1069, 1069 (Fla. 2d DCA 1983). However, when a prospective juror simply expresses a personal opinion of the criminal justice system, that opinion, without more, is usually insufficient to taint the remainder of the venire. See Hayes v. State, 954 So.2d 1265, 1266 (Fla. 5th DCA 2007); see also Brower v. State, 727 So.2d 1026, 1027 (Fla. 4th DCA 1999) (noting that prospective jurors “are frequently exposed ... to innumerable comments, attitudes, and points of view” and that improper remarks made by prospective jurors that were not directed at the defendant were insufficient to warrant striking the venire). The presumption that the venire members can abide by their oath does not disappear simply because one prospective juror expresses a provocative opinion for an ulterior purpose.

In this case, the prospective juror’s comment could not be construed as imparting any knowledge of Reppert’s past criminal activities. Instead, the comment expressed only the prospective juror’s personal belief that individuals facing a criminal trial had probably engaged in criminal activity in the past, and the comment was apparently made in an effort to be excused from jury duty. Under these circumstances, we fail to see how this comment could have tainted the remainder of the venire. Moreover, any possible taint that might have arisen was dissipated by the trial court’s detailed explanation of the law following the prospective juror’s comment. Accordingly, because we cannot say that the trial court’s decision to refuse to strike the venire constituted an abuse of discretion or that Reppert was tried before a partial or tainted jury, we affirm.

Affirmed.

NORTHCUTT and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    Willie HARRISON, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D12-0121.
    District Court of Appeal of Florida, First District.
    March 27, 2012.
    Rehearing Denied May 8, 2012.
    Willie Harrison, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.100(c)(1).

BENTON, C.J., WOLF and VAN NORTWICK, JJ., concur.


author: PALMER, J. SAWAYA, J.,

text:
    Heather HEIDERICH, DVM n/k/a Heather Farmer, DVM and Equine Performance Veterinary Practice, LLC., Appellant, v. FLORIDA EQUINE VETERINARY SERVICES, INC., Appellee.
    No. 5D11-567.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2012.
    Rehearing Denied May 3, 2012.

      Jonathan B. Sbar, Raul Valles, Jr. and Jodi L. Corrigan, of Rocke, Mclean & Sbar P.A., Tampa, for Appellant.
    Erin J. O’Leary, Usher L. Brown and Alfred Truesdell, of Brown, Garganese, Weiss, & D’Agresta, P.A., Orlando, for Ap-pellee.
   PALMER, J.

Heather Heiderich Farmer, D.V.M., and her practice, Equine Performance Veterinary Practice, L.L.C. (collectively Dr. Farmer), timely appeal the non-final order enforcing, by entry of a temporary injunction, a non-compete agreement executed by Dr. Farmer and her former employer, Florida Equine Veterinary Services, Inc. (FEVS). Determining that the trial court entered the temporary injunction based upon an incorrect interpretation of the parties’ non-compete agreement, we reverse.

A trial court’s grant of a temporary injunction is subject to an abuse of discretion standard of review. DiChristopher v. Bd. of County Comm’rs, 908 So.2d 492, 495 (Fla. 5th DCA 2005).

In August 2009, the parties entered into a one-year Employment Agreement that included the following non-compete provision:

B. During the term of this agreement, and for a period of two (2) years after termination thereof, Employee shall not own, manage, operate, control, be employed by, assist, participate in, or have any material interest in any business or profession engaged in general equine veterinary practice located within a thirty (30) mile radius of 19801, County Road 561, Clermont, Florida [FEVS’s business address].

FEVS formally terminated Dr. Farmer’s employment by letter dated July 1, 2010. FEVS later forwarded a separate letter to Dr. Farmer reminding her of the non-compete provision of the Employment Agreement:

The Corporation will expect you to fulfill all of your obligations regarding your covenant not to compete under Section 7 of your Employment Contract. For a term of two years, you will be expected to honor that agreement and not establish an office or locate in any other facility for treating or engaging in a general equine veterinary practice within a thirty mile radius of the Corporation’s location at 19801 County Road 561, Clermont, Florida.

Dr. Farmer thereafter opened her own office located outside the 30-mile radius of FEVS’s location. Several FEVS clients switched to her practice, and some of those clients were located within a 30-mile radius of FEVS’s office.

FEVS filed suit against Dr. Farmer seeking to enforce the parties’ non-compete agreement. The complaint asserted that the fact that Dr. Farmer’s office was located outside the 30-mile radius of FEVS’s office was of no import because the Employment Agreement prohibited her from delivering veterinary services within that 30-mile radius. FEVS moved for a temporary injunction enjoining Dr. Farmer from delivering veterinary services within the 30-mile radius of FEVS’s location.

The trial court granted the motion and entered a temporary injunction prohibiting Dr. Farmer from practicing veterinary medicine within a 30-mile radius of FEVS’s office. In so ruling, the trial court concluded:

The location of her actual office is of no consequence. The issue is where she practices. The Court does not believe it was the intent of the parties to allow Dr. Farmer to set up an office just outside the 30-mile radius and allow Dr. Farmer and Equine Performance Veterinary Practice, LLC (“EPVP”) to treat FEVS’s clients within the restricted area.

Dr. Farmer challenges this ruling, arguing that the non-compete agreement is unambiguous and should have been enforced as written. The clause, according to Dr. Farmer, prohibits her from owning or being employed by a business or profession engaged in equine veterinary practice located within a 30-mile radius of FEVS. It does not, she contends, prohibit her from practicing veterinary medicine anywhere within the 30-mile radius. We agree. Subsection B of the non-compete agreement does not prohibit Dr. Farmer from providing equine veterinary services within á 30-mile radius of FEVS’s office, as long as her business office is outside that radius.

The appellate court is to “ ‘undertake an independent assessment’ ” of the meaning of a covenant not to compete. Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1263 (Fla. 5th DCA 2009) (quoting Coastal Loading, Inc. v. Tile Roof Loading, Inc., 908 So.2d 609, 611 (Fla. 2d DCA 2005)). In assessing such a covenant, Florida law specifically provides that “[a] court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.” § 542.335(1)(h), Fla. Stat. (2010).

In Tam-Bay Realty, Inc. v. Ross, 534 So.2d 1200 (Fla. 2d DCA 1988), rev. denied, 542 So.2d 1334 (Fla.1989), a covenant not to compete provided that the sellers of a real estate brokerage firm were not to compete with the business “by opening, operating, serving as an officer, director or other employee of any real estate brokerage business located within the geographical boundaries of Pinellas County, Florida....” Id. After the sale closed, the sellers advertised in the St. Petersburg phone book, obtained a St. Petersburg phone number, ran advertisements that included homes located in Pinellas County in the St. Petersburg newspaper, and listed themselves in a directory as doing business in almost all Pinellas County communities. The buyer sued for breach of the covenant not to compete clause and won, with the trial court ruling:

The Defendants took the position that the covenant not to compete in question precluded them only from opening up a physical place of business or business office within the confines of Pinellas County. The Plaintiff took the position that the covenant not to compete precluded the conduct of business within Pinellas County regardless of the establishment of a physical business location within Pinellas County. The Court finds that the plain meaning of the contract supports the Plaintiffs and not the Defendants’ position in this regard. The Court does not find any ambiguity in the language of the contract and consequently, finds that the evidence presented by the Defendants as to then-subjective intent in entering into the agreement to have no relevance to the construction of the contract and such evidence creates no issue of material fact.

Id. at 1201. However, on appeal, the Second District reversed, concluding that the sellers had not breached the covenant because they had not competed by “opening, operating, serving as an officer or director of any brokerage business located within Pinellas County.” Id. at 1201-02 (emphasis in original). Rather, the sellers had competed within Pinellas County “from a brokerage business located outside of Pi-nellas County thereby adhering to the literal meaning of the non-compete agreement.” Id. at 1202.

As in Tam-Bay Realty, here the parties’ non-compete agreement did not prohibit Dr. Farmer from providing equine veterinary services within the 30-mile radius of FEVS’s office. As such, the trial court erred in entering the temporary injunction.

REVERSED and REMANDED.

JACOBUS, J., concurs.

SAWAYA, J., dissents with opinion.

SAWAYA, J.,

dissenting.

I respectfully dissent because I believe the trial court correctly interpreted and applied the clear provisions of the non-compete agreement. The provision at issue states that

[djuring the term of this Agreement, and for a period of two (2) years after termination thereof, Employee shall not own, manage, operate, control, be employed by, assist, participate in, or have any material interest in any business or profession enyayed in yeneral equine veterinary practice located within a thirty (30) mile radius of 19801, County Road 561, Clermont, Florida [FEVS’s business address].

(Emphasis added).

The trial court ruled that the non-compete agreement “prohibited Dr. Farmer from practicing equine veterinary medicine within a 30-mile radius of [FEVS’s] office ... for a period of two years” and also prohibited Dr. Farmer from soliciting any “past, present or prospective clients of FEVS.” Specifically, it found that the geographic restriction “is not limited to the location of Dr. Farmer’s office as Defendants have asserted” and that Dr. Farmer

“engages in general equine veterinary practice” anytime and anywhere she treats a horse. The location of her actual office is of no consequence. The issue is where she practices. The Court does not believe it was the intent of the parties to allow Dr. Farmer to set up an office just outside the 30-mile radius and allow Dr. Farmer and Equine Performance Veterinary Practice, LLC (“EPVP”) to treat FEVS’s clients within the restricted area.
4. The Court is required to resolve any ambiguity in the language of a non-compete agreement in favor of enforcement. The language must be interpreted “in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement” of the agreement. § 542.335(l)(h), Fla. Stat. (2010).

I believe the trial court got it right. The emphasized portion of this agreement clearly prohibits the former employee, Heather Heiderich Farmer, from engaging or participating in the practice of veterinary medicine within the proscribed area. Accordingly, the trial court was correct in granting the temporary injunction and prohibiting Dr. Farmer from practicing veterinary medicine within a 30-mile radius of FEVS’s facility and from soliciting current and former clients of FEVS until June 30, 2012 — that is precisely what the non-compete agreement provides.

Furthermore, the decision to grant the temporary injunction is in accord with the provisions of section 542.335(l)(h), Florida Statutes (2010), which provides:

A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.

I believe that the trial court’s interpretation of the non-compete agreement comports with these statutory dictates and that the majority’s decision does not. Accordingly, I would affirm the temporary injunction entered by the trial court.

      . Jurisdiction is proper pursuant to rule 9.130(a)(3)(B) of the Florida Rules of Appellate Procedure.

      . The evidence was uncontroverted that Dr. Farmer, within the proscribed area, treated horses belonging to former clients of Florida Equine Veterinary Services, Inc., and others, which clearly constitutes the enjoined act of participating in a profession engaged in the practice of veterinary medicine.


author: LaROSE, Judge.

text:
    Max JASPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2482.
    District Court of Appeal of Florida, Second District.
    April 4, 2012.
    Rehearing Denied May 7, 2012.

      James Marion Moorman, Public Defender, and Stephen M. Grogoza, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Max Jasper appeals his conviction for second-degree murder. The jury found that Mr. Jasper possessed and discharged a firearm in committing the offense. He argues that fundamental error occurred in giving the jury instruction on the lesser offense of manslaughter by act and claims that the error prompted the jury to find him guilty of second-degree murder. We disagree and affirm his convictions and sentences.

This case involves an early morning drive-by shooting at the Groovy Mule Bottle Club in Tampa. Mr. Jasper and a friend fought with someone in the Groovy Mule. They left the club and returned shooting. A bullet struck and killed a man sitting in his car in the parking lot. As a result, Mr. Jasper and his friend faced murder charges in separate jury trials.

At Mr. Jasper’s trial, the trial court instructed the jury on second-degree murder with actual possession and discharge of a firearm, as well as the lesser offenses of murder in the second degree with actual possession of a firearm, murder in the second degree, manslaughter with a firearm or weapon, and manslaughter. The trial court also instructed the jury on justifiable homicide and excusable homicide, prior to reading the manslaughter instructions.

As to the manslaughter instructions, the trial court instructed the jury on manslaughter by act as a necessarily (category one) lesser included offense of second-degree murder and manslaughter by culpable negligence as a permissible (category two) lesser included offense. The trial court told the jury that “the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.” The trial court also gave a principal instruction. See Fla. Std. Jury Instr. (Crim.) 3.5(a). Mr. Jasper did not object to the instructions as given.

Now, Mr. Jasper argues that fundamental error occurred in two ways. First, the trial court should have repeated the definitions of justifiable and excusable homicide immediately after instructing on the elements of manslaughter. Second, a flawed manslaughter by act instruction misled the jury into thinking that an intent to cause death was required.

The failure to give a complete manslaughter instruction during the original jury charge can constitute fundamental error. See Rojas v. State, 552 So.2d 914, 915 (Fla.1989); Alejo v. State, 488 So.2d 117, 118 (Fla. 2d DCA 1986). That is not what happened here. The justifiable and excusable homicide instructions were defined in the context of second-degree murder and manslaughter. Mr. Jasper hinges his argument on cases where a jury was reinstructed during its deliberations and the justifiable and excusable homicide definitions were not reread to the jury or where the complete instructions on justifiable and excusable homicide were omitted altogether when initially charging the jury on manslaughter. See, e.g., State v. Smith, 573 So.2d 306, 310-11 (Fla.1990); Rojas v. State, 552 So.2d at 915-16; Williams v. State, 591 So.2d 664, 665 (Fla. 2d DCA 1991). Those cases are inapposite. The trial court instructed Mr. Jasper’s jury properly in the original charge; there was no occasion for reinstruction.

Mr. Jasper also supports his fundamental error argument with reference to changes in the manslaughter standard jury instruction, not yet final but adopted by the supreme court shortly after his trial. See In re Amends. to Std. Jury Instrs. in Crim. Cases-Instruction 7.7, 41 So.3d 853, 854-55 (Fla.2010). The amended instruction provided for a reiteration of justifiable and excusable homicide, after the initial manslaughter instruction, without merely referring back to the prior definitions.

Manslaughter is a residual offense that can be fully defined only by exclusion of the properly explained defenses of excusable and justifiable homicide. Pena v. State, 901 So.2d 781, 786-87 (Fla.2005). Of course, where the trial court instructs the jury on a lesser included offense, the instruction must be sufficiently complete and accurate so that it does not mislead the jury- and negate a theory of defense. Alejo, 483 So.2d at 118.

We must note that neither justifiable nor excusable homicide was a material issue at trial. Mr. Jasper’s defense was that he was not involved at all in the shooting. He claimed that he was injured in the earlier brawl. He had gone home to nurse his injuries. He advanced this defense throughout the trial and sought to shift the blame to his codefendant.

We see no error, much less fundamental error. The jury heard instructions on excusable and justifiable homicide in the original jury charge. Mr. Jasper lodged no objection to the jury’s charge. No rein-struction was requested. The trial court gave complete and accurate instructions to the jury. See Franco v. State, 901 So.2d 901, 904-05 (Fla. 4th DCA 2005) (finding sufficient justifiable and excusable homicide instructions were given to jury such that it had full and fair opportunity to exercise its pardon power and refused to do so; under facts of case, any error found harmless beyond a reasonable doubt).

Similarly, we find no fundamental error as to the manslaughter by act instruction. The instruction given to the jury required elements of (1) the death of the victim and (2) that Mr. Jasper “intentionally committed an act which caused the death” of the victim. The instruction also provided that “in order to convict of manslaughter by intentional act, it is not necessary for [the] State to prove that the defendant had a premeditated intent to cause death.” This instruction did not require the jury to find that Mr. Jasper intended to kill the victim. See Daniels v. State, 72 So.3d 227, 232 (Fla. 2d DCA 2011) (finding 2008 amended instruction not fundamentally erroneous), review granted, 79 So.3d 744 (Fla.2012); Moore v. State, 57 So.3d 240, 244 (Fla. 3d DCA 2011) (“Because the instruction given differs from the instruction given in [State v.]Montgomery [, 39 So.3d 252 (Fla.2010)], and the jury was also instructed on manslaughter by culpable negligence, we find no fundamental error.”); but cf. Haygood v. State, 54 So.3d 1035, 1036, 1038 (Fla. 2d DCA) (holding that erroneous manslaughter instruction that defendant “intentionally caused” the death of the victim did not constitute fundamental error; certifying question — “If a jury returns a verdict finding a defendant guilty of second-degree murder in a case where the evidence does not support a theory of culpable negligence, does a trial court commit fundamental error by giving a flawed manslaughter by act instruction when it also gives an instruction on manslaughter by culpable negligence?”), review granted, 61 So.3d 410 (Fla.2011).

At Mr. Jasper’s trial, proof of intent to kill was not required under the manslaughter instruction and the definitions of justifiable and excusable homicide were adequate. The validity of the trial was not compromised.

Affirmed.

CASANUEVA and WALLACE, JJ„ Concur.

      . The jury also returned a guilty verdict for shooting at, within, or into a building. Mr. Jasper does not appeal that conviction and resulting sentence. Mr. Jasper's trial took place in March 2010. His codefendant faced trial at a later date.

      . In Daniels, 72 So.3d at 232, we certified conflict with Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), and its progeny within the First District. The supreme court later denied review of Riesel, 66 So.3d 304 (Fla.2011).


author: SILBERMAN, Chief Judge.

text:
    Corey Shane BOWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5964.
    District Court of Appeal of Florida, Second District.
    April 11, 2012.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Chief Judge.

Corey Shane Bowman seeks review of the trial court’s order revoking his probation in case no. 07-3234 and ordering his probationary term in case no. 09-4489 to be held in abeyance pending the completion of his prison term in case no. 07-3234. Among other things, Bowman argues that the trial court improperly extended his probation in case no. 09-4489. We affirm the court’s finding that Bowman willfully and substantially violated his probation in case no. 07-3234 without further comment. We note that the court did not extend the term of Bowman’s probation in case no. 09-4489 by declaring that Bowman’s probation in that case would be held in abey-anee while he served his incarcerative term in case no. 07-8234. When a defendant who is serving probation in one case is incarcerated in a separate case, his probationary sentence is automatically “tolled.” Badger v. State, 23 So.3d 813, 816-17 (Fla. 2d DCA 2009); Jones v. State, 964 So.2d 167, 171 (Fla. 5th DCA 2007); Williams v. State, 773 So.2d 660, 660 (Fla. 5th DCA 2000); State v. Savage, 589 So.2d 1016, 1018 (Fla. 5th DCA 1991). Thus, the trial court was simply explaining the legal effect of its incarcerative sentence in case no. 07-3234 on the probationary sentence in case no. 09-4489.

Affirmed.

ALTENBERND and WALLACE, JJ., Concur.


text:
    Jorge PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3453.
    District Court of Appeal of Florida, Second District.
    April 11, 2012.
    Jorge Perez, pro se.
   LaROSE, Judge.

Jorge Perez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court denied the motion as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

CASANUEVA and CRENSHAW, JJ., Concur.


author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. Harry RYCKMAN, Appellee.
    No. 2D10-5755.
    District Court of Appeal of Florida, Second District.
    April 13, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.

      Ronnie G. Crider of Bauer, Crider, Pel-legrino & Parry, Clearwater, for Appellee.
   WHATLEY, Judge.

The State appeals the downward departure sentences imposed on Harry Ryck-man upon the revocation of his probation and for a new offense. We agree that the reasons given by the trial court for departure are not supported by competent, substantial evidence, and we reverse Ryck-man’s sentences.

In January 2003, Ryckman entered guilty pleas to three offenses charged in two cases. Over the State’s objection, the trial court withheld adjudication and placed him on probation in both cases based on the need for restitution and his cooperation in another case.

Subsequently, Ryckman pleaded guilty to violating his probation in one of the cases for failing to pay restitution, and the trial court withheld adjudication and again placed him on probation.

Ryckman then committed grand theft, which was charged in case no. 10-997. He entered admissions to violating his probation in the prior cases. He also entered a plea in exchange for a forty-three-month cap on his sentences. Over the State’s objection that there was still no evidence of the need for restitution, the trial court sentenced Ryckman to suspended sentences based on the reasons given at the original sentencing hearing and the fact that Ryckman could fully pay the restitution due in the new case immediately upon its being ordered.

Suspended sentences are downward departure sentences, State v. Harvey, 909 So.2d 989, 990 (Fla. 5th DCA 2005), the reasons for which must be supported by competent, substantial evidence, State v. Adkison, 56 So.3d 880, 883 (Fla. 1st DCA 2011). At the sentencing hearing, Ryck-man presented no testimony or evidence regarding the need for restitution or his cooperation in another case. Indeed, in the 2010 case there was no need for restitution because Ryckman’s counsel advised the court that Ryckman would tender the amount due immediately upon its being ordered.

Ryckman argues that the trial court did not abuse its discretion in using the plea agreement underlying the original term of probation as the reason for departing upon sentencing him for violating that probation, citing State v. Brackett, 547 So.2d 272 (Fla. 2d DCA 1989). In' holding that a trial court may use the plea agreement underlying the original term of probation as a valid reason for departure, Brackett cited State v. Nickerson, 541 So.2d 725 (Fla. 1st DCA 1989). In Franquiz v. State, 682 So.2d 536, 537 (Fla.1996), the supreme court approved the holding in Nickerson “that a trial court may consider the State’s prior agreement for a downward departure as a factor during resen-tencing.” Here, the prosecutor stated at sentencing that the State had objected to the downward departure sentence originally imposed on Ryckman. Thus, if there was a plea agreement underlying the original term of probation, it was not agreed to by the State and could not be used as a basis for the downward departure upon sentencing for the revocation of probation.

Accordingly, because the downward departure sentences were imposed without adequate reasons, we reverse Ryckman’s sentences. Upon remand, Ryckman should be given the opportunity to withdraw his plea.

Reversed and remanded.

DAVIS and BLACK, JJ., Concur.


author: PER CURIAM. ALTENBERND, Judge,

text:
    Randall Scott BLACKSHEAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2722.
    District Court of Appeal of Florida, Second District.
    April 13, 2012.
    Randall Scott Blackshear, pro se.
   PER CURIAM.

We affirm the postconviction court’s denial of relief without prejudice to appellant’s right to file a new motion to correct illegal sentence, pursuant to Florida Rule of Criminal Procedure 3.800(a), expressly alleging where in the records it can be demonstrated that he did not qualify for sentencing as a habitual violent felony offender when he was sentenced in 1996.

Affirmed.

KELLY and VILLANTI, JJ., Concur.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in the decision to allow Randall Scott Blackshear to file another motion seeking relief in this case. He committed three serious offenses on May 1, 1995, in Pasco County. On October 7, 1996, the trial court sentenced him to three concurrent thirty-year terms of imprisonment, consecutive to any active sentence being served. Mr. Blackshear was classified as a habitual violent felony offender for these offenses and accordingly received a fifteen-year mandatory minimum sentence for each offense. It does not appear that he appealed or otherwise challenged these sentences until he filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) in 2011.

Mr. Blackshear’s motion could be better drafted, but he has clearly discovered that on May 1, 1995, habitual violent felony offender status did not apply to defendants who committed crimes while in prison. See § 775.084(1)(b)(2), Fla. Stat. (1995); see also Jeffries v. State, 610 So.2d 440, 441 (Fla.1992). The statute was amended to allow for such sentencing for offenses committed on or after October 1, 1996, but the amendment would not apply to his offenses. See § 775.084(1)(b)(2)(a), Fla. Stat. (Supp.1996).

Mr. Blackshear claims, and the public records of the Department of Corrections appear to confirm, that he was in Pasco County in 1995 because he was an inmate at the Zephyrhills Correctional Institute as a result of offenses he had committed in Duval County in 1983.

The only issue of fact that may affect Mr. Blackshear’s ability to pursue this claim under rule 3.800(a) is whether he was a prisoner of the State at the time of the offenses. It is likely that the records in his criminal case will demonstrate that he was a prisoner at the time of these newer offenses. Frankly, even if this is a question of fact, it is one that the State can obviously confirm from its own public records without difficulty or confusion. Upon the filing of a proper motion, the State ought to be able to admit or deny whether he was a prisoner at the time of these offenses. If Mr. Blackshear was sentenced under the 1996 law to sentences that could not be imposed for prison offenses under the applicable 1995 law, he ought to be entitled to some relief even if it only results in an elimination of the fifteen-year mandatory minimum sentence.


text:
    Paola Andrea RESTREPO, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4623.
    District Court of Appeal of Florida, Second District.
    April 13, 2012.
    Rexford G. Darrow, II, of Faett & Darrow, Naples, for Appellant.
   PER CURIAM.

Paola Andrea Restrepo appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the post-conviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

CASANUEVA, LaROSE, and BLACK, JJ., Concur.


text:
    STATE of Florida, Appellant, v. Anthony G. TYSON, Appellee.
    No. 2D10-4510.
    District Court of Appeal of Florida, Second District.
    April 13, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellant.
    Cedric B. Hall, Fort Myers, for Appel-lee.
   SILBERMAN, Chief Judge.

The State appeals an order dismissing the charge against Anthony G. Tyson of possession of a firearm by a convicted felon. The trial court granted a mistrial and dismissed the charge based on comments the prosecutor made in his opening statement. The State argues that the trial court erred in dismissing the charge because nothing in the opening statement was designed to goad Tyson into seeking a mistrial. We agree and reverse the dismissal of the charge and remand for a new trial.

The State charged Tyson with improper exhibition of a dangerous weapon, resisting/obstructing an officer without violence, possession of a firearm by a convicted felon, and battery on a law enforcement officer. Count III for possession of a firearm by a convicted felon was severed from the other charges, and a jury trial on that charge commenced on August 4, 2010.

The trial court initially instructed the jury that what the attorneys say in opening statements is not evidence but that the opening statements give the attorneys an opportunity to tell the jury what evidence they believe will be presented and how the evidence relates to the issues in the case. At the beginning of opening statements, one of the prosecutors asserted that the State would prove that Tyson was a convicted felon. In describing the facts surrounding the charge, the prosecutor asserted that a Mr. Taylor saw what appeared to be a handgun in Tyson’s possession and that Taylor had his wife call the police. The prosecutor also stated that Tyson was heard saying, “I’m going to kill you.” The prosecutor added that when the police tried to detain Tyson, he “resisted them, struggled with them.” Near the conclusion of his brief opening statement the prosecutor said, “Now, because of the crime that we’re alleging here, you’re going to have the opportunity to hear some of the defendant’s criminal activities, his past felonies.”

Shortly after this comment, when the prosecutor had concluded his opening statement, defense counsel asked to approach the bench. The following colloquy occurred:

MR. HALL: Your Honor, I would— just for the record, I would object to the mentioning of the felonies, that we’re going to be able to prove the felony records.
THE COURT: What about the mention of statements by the defendant that he said he was going to kill him?
MR. HALL: Also.
THE COURT: There’s no — there’s been no prima facie case to put any statements by the defendant in front of the jury, and this is what counsel has said. Plus he resisted arrest, that’s a crime he’s not charged with.
MR. HALL: Yes, Your Honor. Well, I’ll object to that also.
THE COURT: And you’ve got a motion?
MR. HALL: Motion to move for a mistrial, Your Honor.
MS. ZEMOLA: Your Honor, defendant’s statements come in as a defendant’s exhibit, statement as a party opponent in this case.
THE COURT: Once you’ve established your prima facie case.
MS. ZEMOLA: Yes, Your Honor.
And as far as being — the charge about resisting, it would come out during testimony that there was a struggle, and when they tried to arrest him—
THE COURT: Well, there may be a struggle, yes, but not the way that opening statement was done.

The sidebar was concluded, and the trial court announced to the jury that a mistrial was granted and that the defendant was discharged.

When discussing the trial on the remaining three counts, the prosecutor asked if the charge for possession of a firearm by a convicted felon could be tried the next day. The trial court responded that it had granted a mistrial and that jeopardy had attached. The trial court subsequently entered an order granting the motion for mistrial and dismissing count III of the information for possession of a firearm by a convicted felon. The State timely appealed the dismissal of the charge. See Fla. R.App. P. 9.140(c)(1)(A).

Generally, when the trial court declares a mistrial upon the defendant’s motion or with his consent, or upon a manifest necessity, the Double Jeopardy Clause of the Fifth Amendment does not bar a retrial. Turner v. State, 37 So.3d 212, 221 (Fla.), cert. denied, — U.S. -, 131 S.Ct. 426, 178 L.Ed.2d 332 (2010); Fuente v. State, 549 So.2d 652, 657 (Fla.1989); Rutherford v. State, 545 So.2d 853, 855 (Fla.1989). The Supreme Court recognized a narrow exception to this rule in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Fuente, 549 So.2d at 658. That “exception occurs when the prosecution goads the defense into moving for a mistrial and gains an advantage from the retrial.” Rutherford, 545 So.2d at 855.

In Rutherford, the Florida Supreme Court determined that a deliberate discovery violation did not fall into this narrow exception. Id. The Rutherford court explained as follows:

The objective of seeking to cause the other party to move for a mistrial is to “save” a losing case. Our review of the record in the first case convinces us the prosecutor’s motive was to introduce evidence that tended to convict Rutherford, not to create error that would force a new trial.

Id.; see also State v. Dixon, 478 So.2d 473, 475 (Fla. 2d DCA 1985) (reversing dismissal of information and stating that “[t]his is not an instance where the prosecutor was seeking to induce a defendant to move for a mistrial in order to forestall an acquittal”).

In contrast, in Duncan v. State, 525 So.2d 938, 941 (Fla. 3d DCA 1988), the Third District determined that a retrial was prohibited on double jeopardy grounds where the prosecutor goaded the defendant into moving for a mistrial. There, the trial court had ruled that a gun later found near the place the defendant was apprehended could not be shown to the jury or mentioned by witnesses. Id. at 940. Prior to closing arguments the prosecutor requested a short delay so that his associate could retrieve something for the prosecutor. Id. During a critical portion of the defense closing argument, the prosecutor pulled a blue plastic toy gun from his pocket and “twirled it around for the jury to see.” Id. The trial court granted the defense motion for mistrial. At a second trial, the gun was admitted into evidence and a witness was permitted to testify about finding the gun. Id.

“To provoke a mistrial intentionally would allow a prosecutor ‘to shop for a more favorable trier of fact, or to correct deficiencies in [his] case, or to obtain an unwarranted preview of the defendant’s evidence.’ ” Id. at 941 (alteration in the original) (quoting Oregon v. Kennedy, 456 U.S. 667, 686 n. 19, 102 S.Ct. 2088, 72 L.Ed.2d 416 (1982) (Stevens, J., concurring)). The Third District reversed the resulting conviction from the retrial and determined from the circumstances of the case that the prosecutor’s conduct appeared to be calculated to cause a mistrial. Id. And the Third District noted that “the prosecutor gained a distinct advantage from the mistrial. As a result of an evi-dentiary ruling by a different judge, he was able to introduce what he believed to be a key piece of evidence the gun at the second trial.” Id. at 942.

Nothing about the present case indicates that the prosecutor was goading the defense to seek a mistrial, and the trial court made no finding that the prosecutor intended to effect a mistrial. The comments that resulted in the mistrial were made during the prosecutor’s opening statement. Thus, no evidence had been presented, no evidence had been precluded since the jury had been sworn, and the defense had not even presented its theory of the case in its opening statement. The record simply does not reflect an attempt to goad a mistrial to avoid a losing case or gain an advantage on retrial. Thus, we conclude that the general rule applies that a defense motion for mistrial does not bar a subsequent prosecution. See Turner, 37 So.3d at 221. Therefore, we reverse the order dismissing count III of the information and remand for a new trial.

Reversed and remanded.

CASANUEVA and DAVIS, JJ., Concur.


author: MORRIS, Judge.

text:
    Arthur YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3897.
    District Court of Appeal of Florida, Second District.
    April 18, 2012.
   MORRIS, Judge.

Arthur Young appeals the order denying his timely postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised fourteen grounds for relief. We reverse and remand for further proceedings on grounds three and eleven only. We affirm as to Young’s other claims without further discussion.

On June 9, 2006, a jury found Young guilty of second-degree murder with a firearm (count one) and robbery with a firearm (count two). On July 21, 2006, the court sentenced Young to concurrent terms of life imprisonment on each count with a minimum mandatory of twenty-five years. Following the affirmance of his judgment and sentence on direct appeal, Young filed a timely motion for postconviction relief pursuant to rule 3.850.

In ground three of this motion, Young alleged that his sentence for count two is illegal because the information failed to charge that he had discharged a firearm. Specifically, Young claimed that because the information for count two only charged him with robbery while possessing a firearm and not discharge of a firearm, this sentence could not be enhanced pursuant to the “10-20-Life” statute, section 775.087(2)(a), Florida Statutes (2002). See Rogers v. State, 875 So.2d 769, 771 (Fla. 2d DCA 2004).

In its response to ground three, the State conceded that the information did not allege that Young discharged a firearm causing great bodily harm during the robbery charged in count two. The information for count two merely stated that Young committed the charged crime while actually possessing a firearm. As such, even though the jury ultimately found Young guilty of having discharged a firearm causing great bodily harm in this count, the State acknowledged that the mandatory minimum sentence for ground two should be reduced from twenty-five years to ten. See § 775.087(2)(a)(1); Davis v. State, 884 So.2d 1058, 1060 (Fla. 2d DCA 2004) (“[T]he minimum terms mandated by the ’10-20-Life’ statute, section 775.087(2), cannot be legally imposed unless the statutory elements are precisely charged in the information”).

Despite the State’s concession, the postconviction court denied ground three, finding that because the information in count one charged Young with killing the victim by shooting him with a firearm, the discharge of a firearm causing great bodily harm necessary to support the jury verdict for count two could be inferred. However, the case law does not support enhancing a sentence by inference in this context, and this court has previously granted relief on postconviction challenges comparable to Young’s. See Adams v. State, 916 So.2d 36, 37 (Fla. 2d DCA 2005); Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004). Specifically, in order for a court to enhance a defendant’s sentence based on section 775.087(2), the grounds for enhancement must be clearly charged in the information. Adams, 916 So.2d at 37. In addition, “neither the jury’s finding that the firearm was discharged nor the inclusion of the statute number in the information cures the defect in the information.” Whitehead, 884 So.2d at 140.

Here, count two of the information charged only that “in the course of committing said robbery, [Young] did carry and actually possess a firearm.” Finally, to the extent that Young is actually challenging the legality of his sentence within a rule 3.850 motion, “[w]here a mov-ant files a properly pleaded claim but incorrectly styles the postconviction motion in which it was raised, the trial court must treat the claim as if it had been filed in a properly styled motion.” Gill v. State, 829 So.2d 299, 300 (Fla. 2d DCA 2002). Therefore, the postconviction court’s denial on this ground must be reversed and remanded in accordance with the State’s recommendation: Young’s mandatory minimum sentence on count two should be reduced from twenty-five years to ten. See § 775.087(2)(a)(l).

In ground eleven, Young alleged that the trial court failed to award him credit for time served in the Lee County Jail. In support, he claimed that he was in jail from the date of his July 17, 2002, arrest until his July 21, 2006, sentencing and thus was entitled to four years and four days of jail credit. Instead, the written sentence reflects that he was given zero days of jail credit. In its order, the postconviction court dismissed this claim without prejudice to its being raised properly in a rule 3.800(a) motion. However, jail credit claims are cognizable in rule 3.850 motions. See Blake v. State, 807 So.2d 772, 773 (Fla. 2d DCA 2002) (holding that jail credit issues can be raised in a rule 3.850 motion “ ‘if the defendant is requesting additional jail credit due to factual matters not ascertainable from the trial court’s records’ ” (quoting Thomas v. State, 611 So.2d 600, 601 (Fla. 2d DCA 1993))). In addition, Young has pointed to the record — specifically his booking sheet, jail card, written judgment and sentence, and sentencing transcripts — in support of his entitlement to jail credit. As such, he has raised a facially sufficient claim under rule 3.800(a) as well. See Cabrera v. State, 62 So.3d 1171, 1172 (Fla. 4th DCA 2011). Therefore, the postconviction court’s dismissal on this ground must be reversed and remanded for consideration on the merits.

Because Young has raised facially sufficient challenges to his sentence in grounds three and eleven, we must reverse and remand the postconviction court’s denial on these grounds only. With respect to ground three, the postconviction court is instructed to reduce Young’s mandatory minimum sentence on count two from twenty-five years to ten. With respect to ground eleven, the postconviction court is instructed to either attach portions of the record conclusively refuting Young’s claim, conduct an evidentiary hearing, or grant Young the requested four years and four days of jail credit.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.


text:
    Roberto FUNDORA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4532.
    District Court of Appeal of Florida, Second District.
    April 18, 2012.
    Ricardo Corona of The Corona Law Firm, Miami, for Appellant.
   PER CURIAM.

Roberto Fundora appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

WHATLEY, LaROSE, and BLACK, JJ., Concur.


text:
    UNITED STATES of America, acting through Rural Development, formerly Farmers Home Administration (FmHA), United States Department of Agriculture, Appellant, v. Ragna Irene WONDERS, Appellee.
    No. 2D11-2746.
    District Court of Appeal of Florida, Second District.
    April 18, 2012.

      Frederick J. Murphy, Jr., and W.A. “Drew” Crawford of Boswell & Dunlap LLP, Bartow, for Appellant.
    Stephen F. Baker, Winter Haven, for Appellee.
   ALTENBERND, Judge.

The United States of America appeals a judgment awarding attorney’s fees against it in a mortgage foreclosure action in which Ragna Irene Wonders was the prevailing party. Although the promissory note contained a provision allowing the United States to recover attorney’s fees if it prevailed and despite the fact that Florida has a statute that requires attorney’s fees to be awardable to Ms. Wonders in this case, we must yield to the supremacy of the United States and honor its claim of sovereign immunity. Accordingly, we reverse the judgment awarding attorney’s fees.

Acting through Rural Development, formerly known as the Farmers Home Administration of the United States Department of Agriculture, the United States extended a home loan to Ms. Wonders in the amount of $129,000, which was secured by a mortgage on her house. Ms. Wonders apparently made payments for approximately a year on this loan while disputing the interest rate. She claimed that the loan had been negotiated with an interest rate of 4% but that the United States was charging her 6%.

When the United States filed this foreclosure action, Ms. Wonders retained an attorney who prepared pleadings and affidavits for her. She filed a counterclaim for negligent misrepresentation and sought rescission of the loan. The case ultimately was tried without a jury. The trial court dismissed the claim of the United States with prejudice and rescinded the loan and mortgage. The rescission resulted in a conveyance of the house to the United States, but it was ordered to cease and desist in its efforts to take Ms. Wonders’ tax refund and in all other efforts to collect sums from her. The United States does not dispute that Ms. Wonders was the prevailing party in this action.

After prevailing in the action, Ms. Wonders filed a motion for attorney’s fees, relying on the attorney’s fee provision in the promissory note and the language in section 57.105(7), Florida Statutes (2008), which makes such clauses reciprocal. The United States responded to the motion, raising its sovereign immunity and supremacy. Without explaining its ruling, the trial court granted Ms. Wonders’ attorney a reasonable fee for his work in this matter. The United States appeals.

Although Ms. Wonders would have been entitled to an award of attorney’s fees if the loan had been extended by any commercial bank, we must reverse this judgment. The law is clear that even when the United States initiates litigation in a state court in a context such as this, state laws providing for attorney’s fees against the losing party cannot be enforced against the United States. See, e.g., United States v. Morrison, 28 So.3d 94, 101-02 (Fla. 1st DCA 2009) (recognizing that absent a waiver, sovereign immunity shields the federal government from claims for damages and that while an opposing party may file a cross action in response to a suit filed by the United States, the countersuit is permissible only to the extent that it seeks to reduce the amount owed to the United States). The United States has sovereign immunity, which we are bound to honor when it refuses to waive that immunity. Thus, in our modest contribution to federal deficit reduction, we reverse the judgment on appeal and direct the trial court to deny the motion on remand.

Reversed and remanded.

NORTHCUTT and MORRIS, JJ., Concur.