author: EMAS, J.

text:
    Barry GINSBERG, Petitioner, v. Timothy RYAN, Director, Miami-Dade County Corrections and Rehabilitation Department, and the State of Florida, Respondents.
    No. 3D11-924.
    District Court of Appeal of Florida, Third District.
    April 14, 2011.
    Carlos J. Martinez, Public Defender, and Joanna G. Ingalls, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for respondent the State of Florida.
    Before SHEPHERD, SALTER and EMAS, JJ.
   EMAS, J.

The defendant, Barry Ginsberg, petitions this Court for a writ of habeas corpus, asserting that his pretrial incarceration without bond is unlawful. We grant the petition for writ of habeas corpus and remand to the trial court to hold a hearing pursuant to section 907.041, Florida Statutes (2010) and Florida Rules of Criminal Procedure 3.131 and 3.132.

Oh April 29, 2010, the State of Florida (“State”) filed an information charging the defendant with DUI causing serious bodily injury; felony DUI (third or subsequent conviction); battery on a law enforcement officer; and resisting an officer with violence. At first appearance, the judge set a bond of $25,000. The defendant, unable to post the bond, requested an alternative form of pretrial release. On June 18, 2010, the trial court granted pretrial release, conditioned on twenty-four hour, electronically monitored house arrest. As a further condition of his release, the defendant was required to remain at home, and was permitted to leave only for scheduled and approved doctor appointments or to attend court. The trial court set an alternate bond of “no bond.”

On June 29, 2010, an affidavit of monitored release violation was filed, alleging the defendant left his residence without permission, and that the GPS tracking device on the defendant revealed that he went to a residential area and was nowhere near a doctor’s office, hospital or pharmacy. Accordingly, the defendant was taken into custody.

At each of three subsequent hearings, the trial court denied the defendant’s request to reinstate house arrest, and denied defendant’s multiple requests to reinstate the bond. On March 28, 2011, the State made an ore tenus motion with the court to deny any bond for the defendant. The trial court allowed the defendant to address the court on this issue, and then denied pretrial release and the defendant’s motion to set bond. As of today, the defendant has been in custody for more than nine months.

Under the Florida Constitution, a defendant charged with a criminal offense is entitled to bond as a matter of right:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Article I, § 14, Fla. Const.

The State argues the defendant meets the criteria for pretrial detention under section 907.041(4), which provides in pertinent part:

(c) The court may order pretrial detention if it finds a substantial probability, based on a defendant’s past and present patterns of behavior, the criteria in s. 903.0^6, and any other relevant facts, that any of the following circumstances exists:
7. The defendant has violated one or more conditions of pretrial release or bond for the offense currently before the court and the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.

However, a court is required to consider the requirements of section 907.041 and Florida Rules of Criminal Procedure 3.181 and 3.132 before denying a request for pretrial release. Specifically, the State must file a motion seeking pretrial detention within twenty-four hours of the defendant’s arrest. § 907.041(4)(e), (g); Fla. R.Crim. P. 3.132(c). The motion must set “forth with particularity the grounds and the essential facts on which pretrial detention is sought and [must certify] that the state attorney has received testimony under oath supporting the grounds and the essential facts alleged in the motion.” Fla. R.Crim. P. 3.132(a). If “the State indicates to the court that it does not intend to file a motion for pretrial detention, ... or files a motion that is facially insufficient, the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b)(1)” Id.; see, e.g., Rodriguez v. Jenne, 963 So.2d 933 (Fla. 4th DCA 2007) (granting petition for writ of habeas corpus because the State did not file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132); Resendes v. Bradshaw, 935 So.2d 19 (Fla. 4th DCA 2006). At the evidentiary hearing on a motion for pretrial detention, it is the state attorney’s burden to establish a need for pretrial detention, beyond a reasonable doubt. Fla. R.Crim. P. 3.132(c)(1).

The State concedes the provisions of the pretrial detention statute and Rules of Criminal Procedure were not followed in this case, but urges us to affirm the trial court’s decision to detain the defendant because the defendant was given “notice and an opportunity to be heard” on his request for pretrial release following the violation of his monitored release. This argument is without merit.

A defendant who violates a condition of his pretrial release forfeits his right to continued release under the original bond, but does not forfeit altogether his constitutional right to pretrial release. A trial court’s authority to hold the defendant without any bond is circumscribed by the provisions of section 907.041, see State v. Paul, 783 So.2d 1042 (Fla.2001), and the trial court must consider and follow the pertinent provisions of the pretrial detention statute, as well as Rules 3.131 and 3.132. Roby v. State, 795 So.2d 189 (Fla. 3d DCA 2001). “A final order of pretrial detention shall be entered only after a hearing ... [and] shall be held within 5 days of the filing of the motion or the date of taking the person in custody ... whichever is later.” Fla. R.Crim. P. 3.132(c)(1). The defendant “is entitled to be represented by counsel, to present witnesses and evidence and to cross-examine witnesses.” § 907.041(4)(h). Finally, the pretrial detention order “shall contain findings of fact and conclusions of law to support it.” § 907.041(4)(i); Fla. R.Crim. P. 3.132(2).

The State and the trial court failed to follow the above-stated statutory procedures and rules, and such a failure cannot be cured by the fact the defendant might have been given “notice and an opportunity to be heard” before being denied bond. “Although the breach of a bond condition provides the basis for revocation of the original bond, the trial court’s discretion to deny a subsequent application for a new bond is limited by the terms of [section 907.041].” Roby, 795 So.2d at 190 (quoting Paul, 783 So.2d at 1042).

We grant the petition for writ of habeas corpus and remand this cause to the trial court. The State shall have no more than three business days following the issuance of this opinion to file a legally sufficient motion for pretrial detention. Should the State fail to file such a motion, the trial court shall immediately thereafter conduct a hearing pursuant to Rule 3.131 to determine appropriate conditions of release. The defendant shall remain in custody pending the determination of pretrial release or detention.

This opinion shall take effect immediately notwithstanding the filing or disposition of any motion for rehearing.

      . This assumes, of course, that the bond condition which was violated did not constitute a criminal offense. See Fla. Stat. § 903.0471 (authorizing court, on its own motion, to "revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5360.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

C.R., a juvenile, appeals a final order adjudicating her delinquent and committing her to a high-risk facility. C.R. argues, and the state concedes, that in departing from the recommendation of the Department of Juvenile Justice (“DJJ”) to commit her to a moderate-risk facility, the trial court failed to comply with the requirements enunciated in E.A.R. v. State, 4 So.3d 614 (Fla.2009). We reverse the placement and remand for further proceedings.

In E.A.R., the Florida Supreme Court announced a new, more rigorous analysis that a trial court must conduct before departing from the DJJ’s recommendation:

The only rational or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another—and thereby rationalize a departure disposition—is for the court to:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile—in the least restrictive setting—and maintaining the ability of the State to protect the public from further acts of delinquency.

Id. at 638. The trial court failed to comply with the requirements of E.AR. The trial court’s brief explanation of its departure from the DJJ’s recommendation during the September 15, 2010 hearing did not meet the legal standard enunciated in E.AR.

“Simply regurgitating information provided by, and contained within, the DJJ’s comprehensive assessment and PDR [predisposition report] does not establish acceptable statutory reasons as to why the court is ‘disregarding’ these documents and the DJJ’s recommended disposition .... [IJnstead, the juvenile court’s stated ‘reasons,’ must provide a legally sufficient foundation for ‘disregarding1 the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.” Id. See N.B. v. State, 911 So.2d 833, 835 n. 4 (Fla. 1st DCA 2005) (citing K.N.M. v. State, 793 So.2d 1195, 1198 (Fla. 5th DCA 2001) (“[L]ack of remorse, even when established by a preponderance of the evidence, is not a permissible reason to deviate from the [DJJ’s] recommendation.”)). The Final Disposition Orders, entered on September 15, 2010, do not address the departure from the DJJ’s recommendation.

The trial court was without jurisdiction, after the notice of appeal had been filed, to enter the Disposition Order dated October 18, 2010. Cf. D.C.H. v. State, 42 So.3d 340 (Fla. 5th DCA 2010) (holding the trial court did not have jurisdiction to enter a restitution order after filing of notice of appeal); Haines v. State, 805 So.2d 972, 973 (Fla. 2d DCA 2001) (holding the trial court lacked jurisdiction to enter an amended order elaborating on reasons for denial of motion for postconviction relief, after filing of notice of appeal, and the amended order was therefore a nullity); State v. Mitchell, 719 So.2d 1245, 1247 (Fla. 1st DCA 1998) (holding an amended order dismissing criminal charges was a nullity because the trial court no longer had jurisdiction after the state filed its notice .of appeal of the initial order dismissing the charges); Landers v. State, 691 So.2d 550, 551 (Fla. 4th DCA 1997) (concluding that because “the notice of appeal was filed before the trial court entered its order declaring Appellant a habitual violent felony offender, the trial court was without jurisdiction to enter such an order”).

We reverse and remand to the trial court for further proceedings.

BENTON, C.J., PADOVANO, and WETHERELL, JJ., concur.


author: BENTON, C.J.

text:
    Hector Luis SANCHEZ-ANDUJAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1031.
    District Court of Appeal of Florida, First District.
    April 15, 2011.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

Hector Luis Sanchez-Andujar appeals his convictions for attempted first-degree murder of Orlando Cartagena-Torres and attempted second-degree murder of Abiezer Torres. The trial court excluded a key defense witness, albeit after conducting a Richardson hearing, unjustifiably rejecting less restrictive measures to cure any prejudice late disclosure of the witness may have occasioned. We reverse and remand for a new trial.

When a “discovery violation is committed by the defense, special importance attaches to the trial court’s inquiry into alternative sanctions because exclusion of exculpatory evidence implicates the defendant’s constitutional right to defend himself or herself.” McDuffie v. State, 970 So.2d 312, 322 (Fla.2007). See Comer v. State, 730 So.2d 769, 775 (Fla. 1st DCA 1999) (“ ‘In a criminal ease, the exclusion of a defense witness for a discovery violation implicates a defendant’s sixth amendment right to present witnesses as well as the fundamental right to due process.’ M.N. v. State, 724 So.2d 122[, 124 (Fla. 4th DCA 1998) ]; Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).”).

On November 30, 2009, jury selection took place for a trial scheduled to begin on December 1, 2009. Before jury selection, defense counsel filed a motion for continuance on grounds that one of the victims, Mr. Cartagena-Torres, had never been deposed, because he was still in federal custody, and that the state had listed an additional witness (Special Agent Dan McCaffrey whom defense counsel had not had the opportunity to depose) in a supplemental discovery exhibit filed only a week before, on November 23, 2009. The trial court denied the motion to continue the trial.

Defense counsel also presented ore ten-us an additional ground for the motion to continue the trial: Mr. Sanchez-Andujar had informed him earlier on November 30, 2009, that his son, Christian Sanchez, who had been living in Puerto Rico, was returning for the trial and could testify in support of his alibi. The trial judge directed defense counsel and the prosecutor to talk to Christian Sanchez, saying she would decide after that whether Christian would be allowed to testify.

On the following day, December 1, 2009, before the jury was sworn, defense counsel advised the trial court that Christian Sanchez had arrived from Puerto Rico the evening before, and that he should be at the courthouse, but that counsel had not yet spoken to him. Defense counsel also reported that he had “noticed the alibi to the State.” After this colloquy, the trial court instructed defense counsel to make no mention of Christian Sanchez during his opening statement to the jury,, and the trial began.

At trial, the state put on evidence that Mr. Cartagena-Torres and Ms. Torres arrived (with friends) between 10:30 p.m. and 11:00 p.m. on July 24, 2008, at a night club where.Mr. Sanchez-Andujar was already present. Carlos Santiago, a state’s witness, was in the club that night, and saw Mr. Sanchez-Andujar and Mr. Cartagena-Torres arguing. Later, according to Mr. Santiago, when he saw Mr. Sanchez-Andu-jar in the bathroom talking on his cell phone, he suggested that Mr. Sanchez-Andujar leave the club, and Mr. Sanchez-Andujar responded that he was leaving, and was asking someone to pick him up because he did not have a car. Mr. Santiago testified he did not see Mr. Sanchez-Andujar again that night.

Mr. Cartagena-Torres and Ms. Torres remained until the club closed:at 2:00 a.m. Later, outside the club, a car with lights off sped towards them, getting within arm’s reach, before swerving and coming almost to a full stop. The driver’s side was closest to Mr. Cartagena-Torres and, he testified, the car windows were down. Ms. Torres testified that she heard a shot, looked and saw Mr. Sanchez-Andujar inside the car, turned and tried to run, and was shot in the back. Mr. Cartagena-Torres testified that he saw Mr. Sanchez-Andujar in the driver’s seat of the car with a gun, and that he tried to grab the gun, after Ms. Torres was shot, but that additional shots were fired and that one of the bullets struck him.

After the prosecution rested, defense counsel proffered the testimony of Christian Sanchez. Christian testified on proffer that he received a phone call from his father on the night of the shooting. Mr. Sanchez-Andujar told him he had had a run-in with somebody, left the site of the confrontation to avoid further problems, took a taxi but ran out of money, and asked Christian to pick him up and take him home. Christian testified that he picked Mr. Sanchez-Andujar up around 1:00 a.m. on July 25, 2008, and drove him home, and that Mr. Sanchez-Andujar did not leave again that night.

The trial court then asked if the prosecutor wanted to inquire of Christian. The prosecutor refused, arguing that Christian was an alibi witness who should have been disclosed to the prosecutor ten days before trial. The prosecutor maintained that Christian should not be allowed to testify because the state had not had an opportunity to obtain telephone records, or to depose the witness before trial. The trial court then ruled Christian would not be permitted to testify because the case was a year and a half old, because the witness was related to Mr. Sanchez-Andujar, because the witness had been in Puerto Rico, unavailable to any party until the last minute, and because he was an alibi witness disclosed to the prosecution only 48 hours earlier. With Christian’s exclusion, Officer Valentine of the Jacksonville Sheriffs Office and Mr. Sanchez-Andujar himself became the only witnesses to testify for the defense.

At the outset, we point out that the trial court had no authority to exclude witnesses under the alibi provisions of Florida Rule of Criminal Procedure 3.200 because the state did not trigger any defense obligation by filing a written demand for notice of intention to claim an alibi. See Martin v. State, 41 So.3d 1100, 1102 (Fla. 4th DCA 2010) (“[Rjule 3.200 is for the benefit of the State, and thus, the State cannot take advantage of the requirements of rule 3.200 to the defendant’s detriment when it has failed to comply with the rule’s initial mandate by failing to file a written demand for a notice of alibi. Therefore, the trial court abused its discretion in excluding Martin’s alibi witnesses because it was not authorized to exclude the witnesses under rule 3.200.”).

Nor is this a case where defense counsel failed to provide the trial court with enough information to necessitate a comprehensive Richardson hearing. Contrast Johnson v. State, 25 So.3d 662, 665-66 (Fla. 1st DCA), review denied, 43 So.3d 44 (Fla.2010) (concluding defense counsel did not provide the trial court with the information necessary to conduct a comprehensive Richardson hearing when defense counsel first revealed its intent to call a witness not included on the defense witness list after the close of the state’s evidence and denial of a motion for judgment of acquittal, neither proffered the testimony of the proposed witness nor explained in any meaningful detail the content of that expected evidence, and only offered a cursory preview of the proposed testimony just before jury charge which was “largely devoid of substantive content” and “provided no basis for the court to assess what effect, if any, the defense’s discovery violation had upon the State’s ability to properly prepare for trial”).

The opinion in Richardson v. State, 246 So.2d 771, 775 (Fla.1971) sets out a three-part test that a trial court must apply before sanctioning any party for a discovery violation. The “trial court’s discretion can be properly exercised only after an adequate inquiry is made into three areas: (1) whether the discovery violation was willful or inadvertent; (2) whether it was trivial or substantial; and (3) whether it had a prejudicial effect on the opposing party’s trial preparation.” McDuffie, 970 So.2d at 321 (citing Richardson, 246 So.2d at 775). Under Richardson the appeals court reviews the record to determine if “this full inquiry was made and if the trial court’s actions pursuant to the inquiry were proper.” Id.

In the present case, defense counsel told the trial judge that he notified the prosecutor as soon as he learned that Christian Sanchez was expected to arrive in the country in time to testify at his father’s trial. The record indicates that defense counsel, who took over the case several months before trial, was aware of Mr. Sanchez-Andujar’s son before learning of his imminent arrival, but did not list him as a defense witness earlier because the witness was then in Puerto Rico, and the defense investigator had not succeeded in contacting him. The trial court made no finding that this belated disclosure was willful.

After the proffer of Christian Sanchez’s direct testimony, the prosecutor declined an opportunity to cross-examine, claiming that the state had not had an opportunity to obtain phone records or to depose the witness before trial. The trial court made limited inquiry into whether the violation prejudicially affected the state’s ability to prepare for trial and did not clearly make a finding of prejudice to the state.

Instead, the trial judge stated that both defense counsel and the state “just got this information,” noted that Christian and Mr. Sanchez-Andujar were related, observed that Christian had been in Puerto Rico unavailable to either party, and ruled that there were “no indicia of reliability.” The trial court did not explore the possibility that Mr. Santiago’s testimony about Mr. Sanchez-Andujar’s telephone calling should have been enough to alert the state to the desirability of obtaining telephone records well before trial. “[Wjithout supporting factual findings in accordance with Richardson requirements, exclusion of witness previously undisclosed on defense’s witness list was too severe a sanction.” Comer, 730 So.2d at 775 (citing L.W. v. State, 618 So.2d 349 (Fla. 2d DCA 1993)). See also Dawson v. State, 20 So.3d 1016, 1020 n. 3 (Fla. 4th DCA 2009) (noting “that a trial court must address all three prongs of the Richardson inquiry; otherwise, the court’s analysis is not adequate”).

More fundamentally, “[r]elevant evidence should not be excluded from the jury unless no other remedy suffices, and it is incumbent upon the trial court to conduct an adequate inquiry to determine whether other reasonable alternatives can be employed to overcome or mitigate any possible prejudice.” Wilkerson v. State, 461 So.2d 1376, 1379 (Fla. 1st DCA 1985) (citing Austin v. State, 461 So.2d 1380 (Fla. 1st DCA 1984); Fedd v. State, 461 So.2d 1384 (Fla. 1st DCA 1984); Johnson v. State, 461 So.2d 1385 (Fla. 1st DCA 1984); Jones v. State, 360 So.2d 1293, 1297 (Fla. 3d DCA 1978)). As we have said before:

In a system in which the search for truth is the principal goal, the severe sanction of witness exclusion for failure to timely comply with the rules of procedure should be a last resort and reserved for extreme or aggravated circumstances, particularly when the excluded testimony relates to critical issues or facts and the testimony is not cumulative.

Austin, 461 So.2d at 1381. See, e.g., Roopnarine v. State, 18 So.3d 1192, 1194 (Fla. 4th DCA 2009) (holding the trial court erred in excluding testimony of the defendant’s brother, although the brother was not listed in discovery and his name was only provided to the state as a witness on the day of trial, where defense counsel was surprised by the brother’s decision to be a witness, and the brother could testify to exculpatory facts, ruling that the trial court “should have considered another remedy” because the state’s alleged procedural prejudice could have been cured by a continuance or, after the jury was sworn, a mistrial). See also State v. Baldwin, 978 So.2d 807, 808 (Fla. 1st DCA 2008); Comer, 730 So.2d at 775; Donaldson v. State, 656 So.2d 580, 580-81 (Fla. 1st DCA 1995). Cf. Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (holding that if the failure to disclose a defense witness was “willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness’ testimony”).

No effort was made to determine whether reasonable means could have been employed to overcome any prejudice to the state without resorting to the total exclusion of the witness. All indications are that a brief continuance would have cured any possible prejudice. As the court stated in Mattear v. State, 657 So.2d 46, 47 (Fla. 4th DCA 1995) (quoting Woody v. State, 423 So.2d 971, 971 (Fla. 4th DCA 1982)):

[A] trial court’s decision to exclude testimony for a discovery violation should balance “the propositions that the reciprocal rules of discovery should be followed so long as the defendant is not denied his fundamental right to defend himself.” Since the testimony sought to be introduced by the witnesses in the instant case was exculpatory in nature, exclusion of the testimony would deny appellant his fundamental right to defend himself in violation of the Sixth Amendment....
We are not suggesting by this opinion that the trial court, after determining under Richardson v. State, 246 So.2d 771 (Fla.1971), that the state would suffer substantial prejudice, should have allowed the witnesses to testify in the trial presently underway. When exculpatory evidence is sought to be introduced in violation of the discovery rules, and remedies which would allow the trial to proceed are insufficient, the proper course of action is to declare a mistrial. A mistrial is an appropriate discovery sanction under rule 3.220(n)(l), Florida Rules of Criminal Procedure.

Excluding Christian’s testimony was not justified on grounds no other adequate remedy was available. See McDuffie, 970 So.2d at 322; Dawson, 20 So.3d at 1021; Casseus v. State, 902 So.2d 294, 295-96 (Fla. 4th DCA 2005); Fabregas v. State, 829 So.2d 238, 241 (Fla. 3d DCA 2002). A mistrial would not have been necessary. The trial had not begun when it became clear that Christian would be available as a trial witness.

With the exclusion of Christian Sanchez’s testimony, Mr. Sanchez-Andu-jar’s ability to present his defense was seriously compromised. While the “erroneous exclusion of exculpatory defense evidence following a Richardson hearing is subject to harmless error analysis,” Dawson, 20 So.3d at 1021; see also C.D.B. v. State, 662 So.2d 738, 741 (Fla. 1st DCA 1995), such “[ejrror is harmless only where it can be said, beyond a reasonable doubt, that the error could not have affected the verdict.” Comer, 730 So.2d at 775 (citing Czubak v. State, 570 So.2d 925, 928 (Fla.1990)).

Excluding the testimony proffered in the present case was not harmless error because it cannot be said on this record beyond a reasonable doubt that the testimony of Christian Sanchez could not have produced a reasonable doubt in the minds of the jurors sufficient to tip the scales in favor of acquittal. Mr. Sanchez-Andujar, who testified at trial that he did not shoot the victims, denied that he was present when the shooting occurred. Christian’s proffered testimony, which would have been highly relevant, indeed central, to this defense, would have corroborated Mr. Sanchez-Andujar’s version of events.

Reversed and remanded for a new trial.

WETHERELL and ROWE, JJ., concur.

      . The shootings occurred on July 25, 2008. Mr. Sanchez-Andujar was charged on September 10, 2008, and trial was initially set for January 26, 2009. On January 21, 2009, the trial court granted the state’s motion for continuance because the state was unable to locate the victims. On February 5, 2009, the trial court granted a defense motion for continuance in which defense counsel asserted the need for additional time to complete its investigation by interviewing Spanish speaking witnesses that required the use of an interpreter. On September 10, 2009, the trial court granted a second defense motion for continuance in which defense counsel stated that Mr. Cartagena-Torres was in federal custody in another state and had not been deposed.

      . The trial court stated that Mr. Cartagena-Torres would be present at trial the next day, and that defense counsel would be given time to speak to Mr. Cartagena-Torres before he took the stand.

      . Although the trial court's decision was based in part on the fact that the case had been pending for over a year, there is no indication in the record that any part of the delay was attributable to any improper action on the part of the defense. See generally Garner v. Langford, 55 So.3d 711, 712 (Fla. 1st DCA 2011) ("Considering the need for balance, we respectfully do not see that the trial court could cite any sufficiently just reason to deny the motion, even given the age of the case.”).

      . Mr. Sanchez-Andujar testified on his own behalf that he had been taken to the night club by a friend around 10:30. He testified that, after the disagreement with Mr. Cartage-na-Torres, Mr. Santiago came into the restroom and told him to leave the club, that he in fact left around 1:00, and that he never saw any of the people in the club after that.

      . Florida Rule of Criminal Procedure 3.200, Notice of Alibi, provides:
      On the written demand of the prosecuting attorney, ... a defendant in a criminal case who intends to offer evidence of an alibi in defense shall, not less than 10 days before trial or such other time as the court may direct, file and serve on the prosecuting attorney a notice in writing of an intention to claim an alibi, which notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or the defendant’s attorney, the names and addresses of the witnesses by whom the defendant proposes to establish the alibi.... Both the defendant and the prosecuting attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses who come to the attention of either party subsequent to filing their respective witness lists as provided in this rule. If a defendant fails to file and serve a copy of the notice as herein required, the court may exclude evidence offered by the defendant for the purpose of providing an alibi, except the defendant's own testimony.... For good cause shown the court may waive the requirements of this rule.

      .The witness was excluded on this ground at the state's behest, over defense objection. We therefore reject the state’s argument that this contention is not preserved for review.

      . “When a party fails to comply with [rule 3.220(d)(1)(A) ], the trial court is to determine whether such failure has prejudiced the opponent, but 'only after the court has made adequate inquiry into all of the surrounding circumstances.’ Richardson v. State, 246 So.2d 771 (Fla.1971).” Johnson v. State, 25 So.3d 662, 665 (Fla. 1st DCA), review denied, 43 So.3d 44 (Fla.2010). The defense was under an obligation to list all defense witnesses because the defense elected to participate in discovery under the rule. See Fla. R. Crim. P. 3.220(d)(1)(A). Christian Sanchez was not listed as a witness by the defense or disclosed to the prosecution until November 30, 2009.

      . In denying the motion for continuance on November 30, however, the trial court did say that any alibi witness would have immediately been known to Mr. Sanchez-Andujar, and that, if Mr. Sanchez-Andujar chose to wait until the eve of trial to disclose the witness to defense counsel, that was his problem. But see Roopnarine v. State, 18 So.3d 1192, 1194 (Fla. 4th DCA 2009) (holding that, although the trial “court noted that the defendant had known about the brother but failed to list him as a witness, thus preventing the state from deposing the brother to discover his story, inconsistencies, and investigate the case further ... [and t]he state was procedurally prejudiced,” the trial court erred in excluding the brother as a witness, noting defense objection that " ‘there’s no prejudice that can’t be cured’ ”).

      .A brief continuance could have cured both of the state’s problems. The bare assertion that impeachment evidence might have been uncovered is insufficient. See Baker v. State, 522 So.2d 491, 492 (Fla. 1st DCA 1988) (holding exclusion solely on the ground that the untimely disclosure of the witness left the prosecution with no time to gather information with which to impeach the credibility of the witness "is insufficient, as inability to obtain ‘impeachment’ evidence is invariably a factor with an undisclosed witness and would require exclusion in every case, regardless of the comparative detriment to the parties and the justice of the case”). See also Grace v. State, 832 So.2d 224, 227 (Fla. 2d DCA 2002); Miller v. State, 636 So.2d 144, 149 (Fla. 1st DCA 1994); Fratcher v. State, 621 So.2d 525, 526 (Fla. 4th DCA 1993).

      . Christian had been placed under oath for the proffer, and had already been tendered for cross-examination by the prosecution.

      . "Prejudice in this context means procedural prejudice significantly affecting the opposing party's preparation for trial.” McDuffie v. State, 970 So.2d 312, 321 (Fla.2007). See also Comer v. State, 730 So.2d 769, 774 (Fla. 1st DCA 1999) (“In assessing procedural prejudice, the trial court must determine, first, whether the discovery violation precluded the aggrieved party from adequately preparing for trial, and second, what is the proper sanction to invoke for the discovery violation.”) (citing Smith v. State, 372 So.2d 86, 88 (Fla.1979); Wilcox v. State, 367 So.2d 1020, 1023 (Fla.1979)).


author: LEWIS, J. CLARK, J.,

text:
    Danny Joe RAULERSON, Appellant, v. Kristine Joann WRIGHT, Appellee.
    No. 1D10-3309.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Rhonda Portwood, Inverness, for Appellant.

      George Cline Moore, Perry, for Appel-lee.
   LEWIS, J.

Danny Joe Raulerson (“the Father”), appeals an order of the trial court granting Kristine Joann Wright (“the Mother”), temporary permission to relocate with the parties’ minor child and denying the Father’s request to enjoin such relocation. Because the relocation had already occurred, the trial court did not abuse its discretion in denying the Father’s request for an injunction. See Advantage Digital Sys., Inc. v. Digital Imaging Servs., Inc., 870 So.2d 111, 116 (Fla. 2d DCA 2003) (“By its nature, an injunction restrains commission of a future injury; a court cannot prevent what has already occurred.”); City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So.2d 750, 754 (Fla. 1st DCA 1994) (providing that an injunction “will lie only to restrain ... future injury, since it is impossible to prevent what has already occurred”) (citation omitted). Therefore, we affirm that portion of the trial court’s order without further comment. However, with respect to the trial court’s grant of temporary permission to relocate, we reverse for the reasons that follow.

After the Mother verbally notified the Father of her intent to relocate with the parties’ minor child “a day or two” before a March 9, 201.0, child support modification proceeding, the Father filed an emergency motion to enjoin such relocation on March 15, 2010. On March 19, 2010, the Mother hand-delivered to the Father an unsworn “Notice of Intent to Relocate With Child,” and moved from Perry, Florida, to Ponte Vedra, Florida, the following day. On the same day that the Mother delivered her notice, the Father served upon the Mother a notice of hearing, which identified the Father’s motion to enjoin as the sole matter to be addressed at a March 31, 2010, evidentiary hearing. On March 23, 2010, the Father filed a “Motion for Contempt and Motion to Compel Return of the Minor Child to the Father in Taylor County, Florida.” However, this motion was not noticed for hearing, litigated by the parties, or addressed by the trial court. The Mother’s “Notice of Intent to Relocate With Child” was not filed with the court, and it was not admitted into evidence at the hearing on the Father’s motion to enjoin.

At the hearing, the Father reiterated that the proceeding would address only “whether or not the Mother complied with the Statute and the Court[’s] ability to enter an Injunction or a Restraining Order prohibiting [her] from leaving.” Consequently, the parties limited their testimony to the injunctive relief issue, rather than delving into all the factors relevant to whether the relocation would ultimately be in the child’s best interests. The Mother admitted at the hearing that she did not have a written agreement with the Father to relocate, did not file a petition to relocate with the minor child, and did not have prior court approval to relocate. Despite these admissions and the express limitation on the testimony, the Mother verbally requested permission to relocate. The Father argued that temporary permission to relocate would be improper because the Mother had not complied with the requirements of section 61.13001, Florida Statutes (2009). In response to this concern, the trial court observed, “In North Florida and in the smaller jurisdictions such as ours, the parties generally do not strictly comply with that statutory provision.” Ultimately, the trial court granted the Mother temporary permission to relocate, finding, among other things, that (1) she “substantially complied” with the requirements of section 61.13001, and that (2) there was “a likelihood that the relocation of the Mother and minor child would be granted” in a final hearing. Based on these determinations, the court granted the Mother temporary permission to relocate with the minor child to Ponte Vedra. This appeal followed.

A trial court’s determination regarding the relocation of a minor child is reviewed for abuse of discretion. Norris v. Heckerman, 972 So.2d 1098, 1099 (Fla. 1st DCA 2008) (citing Manyari v. Manyan, 958 So.2d 512, 512 (Fla. 3d DCA 2007), Edrington v. Edrington, 945 So.2d 608, 609 (Fla. 4th DCA 2006), and Landingham v. Landingham, 685 So.2d 946, 950 (Fla. 1st DCA 1996)). However, issues involving the interpretation of a statute are reviewed de novo. B.Y. v. Dep’t of Children & Families, 887 So.2d 1253, 1255 (Fla.2004). Our decision in the instant case turns on whether the trial court properly applied section 61.13001, Florida Statutes (2009).

In resolving this issue, we bear in mind that “[a] court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008). This inquiry must begin with the “actual language used in the statute” because legislative intent is to be determined “primarily from the statute’s text.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla.2007) (citations omitted). As the Florida Supreme Court has explained:

[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning ... the statute must be given its plain and obvious meaning. Further, we are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power. A related principle is that when a court interprets a statute, it must give full effect to all statutory provisions. Courts should avoid readings that would render part of a statute meaningless.

Mendenhall v. State, 48 So.3d 740, 748 (Fla.2010) (quoting Velez v. Miami-Dade Cnty. Police Dep’t, 934 So.2d 1162, 1164-65 (Fla.2006) (quotation marks and citations omitted)).

Section 61.13001 delineates the requirements a primary residential parent must follow before relocating with a minor child who is the subject of an order determining the child’s time-sharing, residential care, kinship, or custody. Unless there is a valid agreement to the child’s relocation under section 61.13001(2), the primary residential parent must file a petition to relocate and receive permission from the circuit court to relocate. See § 61.13001(3). This petition must be filed under oath, contain seven specific items of information, and be served on every other person entitled to access or time-sharing with the child. § 61.13001(3). There are two potential consequences to relocating a child in derogation of these requirements: (1) the party in violation is “subject[ ] ... to contempt and other proceedings to compel return of the child,” § 61.13001(3)(e); and (2) “[t]he court may ... order the return of the child ... or order other appropriate remedial relief,” § 61.13001(6)(a), Fla. Stat. (2009). See also § 61.13001(6)(a)2 (further providing that if the trial court finds “[t]hat the child has been relocated without a written agreement of the parties or without court approval,” the court may also “order the return of the child” or “order other appropriate remedial relief”).

To grant a temporary order permitting the relocation of a minor child pending a final hearing, the trial court must make two findings:

1. That the petition to relocate was properly filed and is otherwise in compliance with subsection (3); and
2. From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.

§ 61.13001(6)(b), Fla. Stat. (2010). In connection with the second finding, the court is required to consider the factors enumerated in section 61.13001(7)(a)-(k). See Conners v. Mullins, 27 So.3d 199, 200 (Fla. 1st DCA 2010) (explaining that the section 61.13001(7) factors reveal whether relocation is in the child’s best interest). The parent wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. § 61.13001(8), Fla. Stat. (2009). If that burden is met, the burden shifts to the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the child’s best interest. Id.

In this case, the trial court erred in determining that the Mother’s hand-delivery to the Father of her “Notice of Intent to Relocate With Child” was sufficient to satisfy the requirements of section 61.13001(3). As noted above, section 61.13001(6)(b)l provides that the trial court “may grant a temporary order permitting the relocation of the child pending final hearing” if the court finds that “the petition to relocate was properly filed and is otherwise in compliance with subsection (3).” See also § 61.13001(6)(b)2 (identifying the other prerequisite to granting a temporary order permitting relocation). The Mother’s efforts in this .case were inadequate because she failed to comply with the threshold requirement of properly filing a sworn petition with the trial court. See § 61.13001(6)(b)l. Rather, she merely hand-delivered to the Father an unsworn “Notice of Intent to Relocate With Child” one day before relocating. The Mother did not file any form of documentation with the court, despite the statute’s explicit directive to file a sworn petition. Thus, she failed to comply with the statute and should not have been granted permission to relocate.

The trial court’s decision to grant the Mother permission to relocate was an abuse of discretion because the trial court failed to give effect to a clear statutory mandate. The courts of this state are bound to apply the laws of this state. Accordingly, we REVERSE the portion of the trial court’s order granting the Mother temporary permission to relocate.

AFFIRMED in part and REVERSED in part.

CLARK, J., Concurring With Opinion.

ROWE, J., concurs.

CLARK, J.,

concurring.

I concur with the affirmance of the denial of injunctive relief and the reversal of the trial court’s granting temporary permission to relocate with the parties’ minor child. The essence of the error is the trial court’s failure to apply section 61.13001, Florida Statutes, to the undisputed facts.

The order on appeal did not result from a misinterpretation of the applicable statute such that we would resolve the matter by turning to rules of statutory construction. The trial court simply ignored the current statutory provisions and fashioned an alternate solution it thought would expeditiously resolve the family conflict.

When a shared-parenting order is in place, section 61.13001, Florida Statutes requires a parent seeking to relocate with a child subject to that order to file a petition in accordance with section 61.13001(3), Florida Statutes. Temporary permission to relocate may be granted only if a sufficient petition has been filed. § 61.13001(6)(b), Fla. Stat.

It is undisputed that the mother had not filed a petition. The trial court’s finding of “substantial compliance” was clearly erroneous under the unambiguous terms of the statute and did not excuse the mother’s obligation to file a sworn petition. Even if “substantial compliance” was allowed by the statute, this court has recognized that “in order for there to be substantial compliance, there has to be some compliance.” Hall v. Maal, 32 So.3d 682, 686 (Fla. 1st DCA 2010) (emphasis added) (considering § 741.211, Fla. Stat., providing that defective marriage will be recognized if entered into “in good faith and in substantial compliance with this chapter.”).

The trial judge’s observation that “in North Florida and in the smaller jurisdictions such as ours, the parties generally do not strictly comply with that statutory provision” provides no basis upon which the law may be disregarded. Where clear statutory enactments apply to the facts presented, the courts of this state are not at liberty to decline to apply the provisions of the statute. The Judge, even when he is free, is still not wholly free. He is not to innovate at his pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty and goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. Benjamin Cardozo, The Nature of the Judicial Process 141 (Yale U. Press 1921).

Accordingly, I agree that the denial of the injunction should be affirmed and that the order granting temporary permission to relocate with the minor child must be reversed.


text:
    Terrance L. BOWEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1378.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Terrance L. Bowen, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, ROBERTS, and WETHERELL, JJ., concur.


text:
    Michael MONGEAU, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5266.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Michael Mongeau, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., WEBSTER and VAN NORTWICK, JJ„ concur.


author: WELLS, Judge.

text:
    Nancy ARROYO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Marshalls of MA, Inc., Appellees.
    No. 3D10-2156.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.

      Legal Services of Greater Miami, Inc., and Champagne E. Girten, for appellant.
    Louis A. Gutierrez, Tallahassee, for ap-pellee Florida Unemployment Appeals Commission.
    Before WELLS, CORTIÑAS, and EMAS, JJ.
   WELLS, Judge.

Nancy Arroyo appeals from an order of the Unemployment Appeals Commission affirming a decision of an unemployment appeals referee denying Arroyo’s claim for unemployment compensation. Because the facts fail to establish misconduct connected with work, we reverse.

Arroyo was hired by Marshalls of MA, Inc. in November of 1995 to work part-time in customer service. As part of her duties, Arroyo was to make returns of merchandise from customers. According to company policy, about which Arroyo was aware, merchandise returns were to be made always in the presence of the customer by circling returned items on the original sales receipt; scanning the bar-code of returned items on the original receipt; entering the department, style and price of the items being returned in the computer (register); reimbursing funds to the customer for returned items if appropriate; having the customer sign a refund slip; and (herself) signing the refund slip.

In May of 2004, Arroyo was warned for returning merchandise in excess of $100.00, without getting the signature of a customer service supervisor, as required. Approximately four years later, she was counseled about speaking harshly to a supervisor. In June 2009 she was fired for making returns when no customers were present.

Following her June 2009 discharge, Arroyo applied for and received unemployment benefits. Marshalls appealed and following an evidentiary hearing, benefits were denied on a finding that Arroyo’s discharge was for misconduct connected with the work. During the evidentiary hearing Marshalls’ loss prevention investigator testified that he had viewed a security video tape which showed Arroyo conducting a number of merchandise returns when customers were not present. During three of these transactions, he observed Arroyo return items and place refunds in plastic bags and sign receipts for customers. Both this witness and Marshalls’ loss prevention manager testified that Arroyo, when questioned, admitted in writing that she had knowingly violated company policy by signing refund documents for customers.

However, Arroyo testified (and stated in writing at the time her employment was terminated), that although she was aware of Marshalls’ return policy, from time to time, when a customer would step away from the counter during a return transaction to go to the bathroom or to get other merchandise, she would continue to process the return and then sign the receipt to finalize the transaction. According to Arroyo, she did this to assist the customer and to generate good customer relations for her employer; there was no evidence that Arroyo kept any refund monies for herself.

While we agree that on this record Arroyo’s termination from her job was justified, we cannot agree that this conduct constitutes misconduct that would disqualify her from receiving benefits.

Section 443.101(l)(a), of the Florida Statutes disqualifies a terminated employee from receiving unemployment benefits when that employee “has been discharged by his or her employing unit for misconduct connected with his or her work.” § 443.101(l)(a), Fla. Stat. (2010). The term “misconduct connected with work” as utilized in Chapter 443 is, however, more than just inadvertence, inefficiency, incapacity, bad judgment or unsatisfactory behavior. It is intentional behavior or behavior evidencing a degree of carelessness or negligence that “manifests a wrongful intent or evil design.” See Yost v. Unemployment Appeals Comm’n, 848 So.2d 1235, 1238 (Fla. 2d DCA 2003).

As this court on more than one occasion has confirmed, “[a]n isolated incident, such as an employee’s failure to follow policies and rules, is generally not considered misconduct, and an employer’s grounds for terminating employment is a separate issue from disqualification criteria set out in the unemployment compensation statute.” Rosas v. Remington Hospitality, Inc., 899 So.2d 390, 391 (Fla. 3d DCA 2005); see also Del Pino v. Airow Air Inc., 920 So.2d 772, 773 (Fla. 3d DCA 2006) (confirming that cases dealing with isolated incidents, “such as an employee’s failure to follow policies and rules,” are not generally considered ‘misconduct’ that would result in denial of unemployment benefits).

In this case, Arroyo’s conduct, while vio-lative of company policy, more closely resembled a few isolated incidents which although supporting termination would not amount to the misconduct necessary to support a denial of benefits.

Accordingly, we reverse the Unemployment Appeals Commission’s order denying unemployment benefits to Arroyo.

      . “Misconduct” is defined in section 443.036(29) of the Florida Statutes as follows:
      (29) "Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other: (a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
      (b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.
      § 443.036 (29), Fla. Stat. (2010).


text:
    Julio RAMOS, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D10-2319.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.

      Wasson & Associates and Annabel C. Majewski, for appellant.
    Louis A. Gutierrez, Tallahassee, for ap-pellee, Unemployment Appeals Commission.
    Before GERSTEN, WELLS, and SALTER, JJ.
   PER CURIAM.

Julio Ramos (“the claimant”) appeals the Florida Unemployment Appeals Commission’s (“the UAC”) final order dismissing his case as untimely. We reverse.

On appeal, the claimant asserts that the UAC erred in dismissing the appeal because it was timely filed. The UAC contends that the UAC properly dismissed the appeal as untimely because it was received after the twenty-day time period allowed for the appeal. We agree with the claimant and reverse.

An appeal of a UAC order must be filed within twenty calendar days of the date the determination or redetermination of benefits was mailed to the appellant. See Fla. Admin. Code R. 60BB-5.005(1). This appeal may be filed by mail, fax, or hand delivery. See Fla. Admin. Code R. 60BB-5.004. However, a party is deemed to assume the risk of transmission difficulties associated with faxes. See Reynolds v. SV Cent. Dania Props., 849 So.2d 1181, 1182 (Fla. 4th DCA 2003).

Here, the record contains a fax transmission report documenting the successful transmission of the claimant’s notice of appeal to an approved UAC location within the twenty-day time period. Therefore, the claimant satisfied the timeliness requirements of Rule 60BB-5.004, and the UAC erred in dismissing the appeal as untimely.

Accordingly, we reverse the dismissal order and remand for a review of the merits of the claimant’s appeal.

Reversed and remanded.


text:
    Carl GRIGGS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-322.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Carl Griggs, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, WELLS, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See § 775.084(l)(b)l.d., Fla. Stat. (2002).


text:
    Andrea POWER, Appellant, v. Richard BOYLE, Appellee, Charles Fulford, Appellant, v. Richard Boyle, Appellee, Andrea Power, Appellant, v. Martha Boyle, Appellee, Charles Fulford, Appellant, v. Martha Boyle, Appellee.
    Nos. 1D10-6437, 1D10-6438, 1D10-6439, 1D10-6440.
    District Court of Appeal of Florida, First District.
    April 21, 2011.

      Gary Baker, Callahan, for Appellants.
    Richard Boyle, and Martha Boyle, pro se, Appellees.
   PER CURIAM.

These cases, which we consolidate for purposes of this opinion, involve permanent injunctions against repeat violence entered against Andrea Power and Charles Fulford based on petitions filed by Richard and Martha Boyle under section 784.046, Florida Statutes (2010). Ms. Power and Mr. Fulford argue that the evidence presented at the hearing on the petitions was legally insufficient to support the injunctions. We agree, and reverse the injunctions.

Ms. Power, Mr. Fulford, and the Boyles all live in the same neighborhood in Nassau County. The events leading to the injunctions started in 2008 when Ms. Power purchased a house from the Boyles. After the sale, there were several disagreements regarding the condition of the house and landscaping that caused the relationship between Ms. Power and the Boyles to sour. Over the next two years, Mrs. Boyle claimed that Ms. Power expressed her distaste of the Boyles by yelling obscenities at their house, “flipping off’ their house, letting her dog urinate on their garage door, and writing profane and inappropriate notes on mail that was delivered to the Boyles’ old residence. The Boyles cited these incidents in support of their petitions for injunction, along with several additional incidents in June 2009 and October 2010.

According to Mrs. Boyle, on June 22, 2009, Ms. Power, Mr. Fulford, and Ms. Power’s husband stumbled by her house, apparently intoxicated, and when the trio stopped at the corner of the Boyles’ lot, Ms. Power yelled obscenities at the house. Mrs. Boyle was on her front porch at the time, but she was shielded behind a bush and there is no evidence that Ms. Power saw her or was directing the obscenities at her. Approximately ten minutes later, Mrs. Boyle testified that she heard several gun shots coming from Mr. Fulford’s back .yard. Ms. Power and Mr. Fulford denied that this incident occurred. '

On October 9, 2010, Mr. Boyle called the police after he saw several people trying to cut plants in his yard. In his statement to the responding officer, Mr. Boyle identified Mr. Fulford as the culprit, and Mr. Fulford was subsequently arrested. However, at the hearing on the petitions in this case, Mr. Boyle testified that it was Ms. Power (not Mr. Fulford) who he saw cutting his plants and that he has “never had one problem with [Mr.] Fulford.” Mr. Boyle testified that the reason he sought an injunction against Mr. Fulford was his concern that Mr. Fulford’s association with Ms. Power, combined with his consumption of alcohol and ownership of firearms, was not safe.

The morning after this incident, Ms. Power walked by the Boyles’ residence with several of her friends and Mrs. Boyle started following them. She told Ms. Power that Mr. Fulford had been arrested for cutting the Boyles’ plants and that Ms. Power was next because the Boyles had security cameras that captured the incident on video. (Mrs. Boyle admitted at the injunction hearing that there was no such video.) Then, according to Ms. Power, Mrs. Boyle threatened to throw her coffee at Ms. Power or one of her friends. Mrs. Boyle acknowledged the confrontation and that she was upset at the time, but denied threatening to throw her coffee at Ms. Power.

On October 11, 2010, Mr. and Mrs. Boyle each filed separate petitions for injunction against Ms. Power and Mr. Ful-ford under section 784.046. The trial court granted temporary injunctions and, after holding a consolidated hearing on all of the petitions, the court entered four separate permanent injunctions for protection against repeat violence, two against Ms. Power (one in favor Mr. Boyle, and one in favor of Mrs. Boyle) and two against Mr. Fulford (one in favor of Mr. Boyle, and one in favor of Mrs. Boyle). In explaining its decision to enter the injunctions, the trial court recognized that “this case does not fall within the purview of our most ordinary uses of [section 784.046],” but the court reasoned that an injunction is necessary “to keep the peace” between the parties and that the circumstances of this case “fall[] within the broader purview of the statute” because of the harassing nature of the incidents described by the Boyles. These timely appeals followed.

Section 784.046 authorizes the trial court to enter injunctions for protection against repeat violence. The statute does not allow the trial court to enter injunctions simply “to keep the peace” between parties who, for whatever reason, are unable to get along and behave civilly towards each other. See Home v. Entires, 61 So.3d 428, 429 (Fla. 1st DCA 2011) (reversing “no contact order” entered pursuant to section 784.046 and observing that “even courts of general jurisdiction are without plenary power to enjoin citizens to remain on good behavior”); Polanco v. Cordeiro, — So.3d -, - (Fla. 2d DCA 2010) (Villanti, J., concurring) (“Petitions for' injunctions against repeat violence, or against domestic violence for that matter, are to be used only to rectify the egregious conduct outlined in the statutes themselves, [citations omitted] These statutory provisions are not a panacea to be used to cure all social ills. In fact, nowhere in the statutory catalog of improper behavior is there a provision for court-ordered relief against uncivil behavior. ...”).

Section 784.046 defines repeat violence as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b), Fla. Stat. (emphasis added). The statute defines violence to mean “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death.” § 784.046(l)(a), Fla. Stat. Stalking has been interpreted to mean “repeated acts of following or harassment.” Lukacs v. Luton, 982 So.2d 1217, 1219 (Fla. 1st DCA 2008); see also § 784.048(2), Fla. Stat. (providing that a person who “willfully, maliciously, and repeatedly follows or harasses another person” commits the crime of stalking). Harassment is defined as a series of acts over a period of time “directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(1)(a); Fla. Stat.; see also McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001) (citing Bouters v. State, 659 So.2d 235, 238 (Fla.1995), for the proposition that a reasonable person standard applies in determining whether an incident causes substantial emotional distress so as to constitute harassment).

The trial court’s finding of two incidents of violence or stalking required for an injunction under section 784.046 must be supported by competent substantial evidence. See Terrell v. Thompson, 935 So.2d 592, 593 (Fla. 1st DCA 2006); McMath, 776 So.2d at 1041. Here, the trial court apparently credited the testimony of the Boyles regarding the incidents described above. It is not our role to second-guess the trial court’s decision to accept the Boyles’ testimony over that of Ms. Power and Mr. Fulford; however, we agree with Ms. Powers and Mr. Fulford that the incidents described by the Boyles were legally insufficient to support the injunctions for protection against repeat violence because the incidents do not rise to the level of violence or stalking under section 748.046, and as to Mr. Fulford, the Boyles did not even establish the existence of two incidents as required by the statute.

The only incident involving Mr. Fulford was that he was allegedly drunk and with Ms. Power when she yelled profanities at the Boyles’ residence. There was no evidence that Mr. Fulford made any statements or gestures towards the house during this incident, and Mr. Boyle testified that he has “never had one problem with [Mr.] Fulford.” The guilt-by-association-with-Ms. Power justification offered by Mr. Boyle for the petition against Mr. Fulford is not a legitimate basis for the issuance of an injunction under section 784.046.

The incidents involving Ms. Power were immature and uncivil, and we do not in any way condone her behavior towards the Boyles. However, these incidents do not constitute violence or stalking for purposes of an injunction under section 784.046. There was no evidence that Ms. Power ever threatened either of the Boyles with violence or that she committed an overt act that would create a reasonable fear in the Boyles’ minds that violence was imminent. See Gagnard v. Sticht, 886 So.2d 321, 322 (Fla. 3d DCA 2004) (finding that although respondent threatened to kill petitioner and “ ‘F’ him up,” without “overt acts indicating an ability to carry out the threats or justifying a belief in [petitioner] that violence was imminent” no injunction should issue); Russell v. Doughty, 28 So .3d 169, 170 (Fla. 1st DCA 2010) (holding that yelling profanities and threats at the petitioner, even after a previous battery by respondent against petitioner, was not sufficient for a finding of “repeat violence” without evidence that respondent took an action creating a “well-founded fear that violence was imminent”); Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006) (“Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction.”); Perez v. Siegel, 857 So.2d 353, 355 (Fla. 3d DCA 2003) (holding that two separate incidents where respondent yelled at petitioner, even when respondent allegedly threatened to kill petitioner and her family, were not sufficient to support an injunction without some overt act creating a well-founded fear of imminent violence); Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990) (holding that numerous harassing phone calls, some containing threats, were not sufficient to support trial court’s decision to grant injunctive relief). Moreover, based on the confrontation that Mrs. Boyle initiated with Ms. Power and her friends the day after Mr. Fulford was arrested, it appears that the relationship between Ms. Power and Mrs. Boyle is more tit-for-tat than stalker-victim. Indeed, although the trial court did not make any findings on the issue, there was evidence presented at the hearing that Mrs. Boyle communicated with Ms. Power’s employer regarding her negative opinion of Ms. Power’s fitness as an employee. (Mrs. Boyle admitted to talking to Ms. Power’s employer, but claimed that she did so only because the employer solicited her opinion about Ms. Power.)

The Boyles argue that the injunctions against Ms. Power and Mr. Fulford should be affirmed based on this court’s decision in Lukács because, in that case, the court affirmed an injunction under section 784.046 based on a single incident of stalking. We find Lukács to be distinguishable because the respondent’s actions in that case were much more threatening than any of the actions of Ms. Power and Mr. Fulford in this case. In Lukács, there was evidence that the respondent had followed petitioner home from work and then, the next day, verbally threatened the petitioner by saying that he knew where she lived and he might rape her. See 982 So.2d at 1218. Here, there was no evidence that Ms. Power or Mr. Fulford threatened the Boyles with any harm, and although the Boyles claimed that Ms. Power destroyed their plants and that someone shot a gun in Mr. Fulford’s backyard shortly after one of the incidents in which Ms. Power was yelling obscenities at the Boyles’ home, we are not persuaded that these incidents would cause a reasonable person to believe that physical violence was imminent.

In sum, because the evidence presented in support of the petitions was legally insufficient to support an injunction under section 784.046, the trial court erred in entering the permanent injunctions for protection against repeat violence against Ms. Power and Mr. Fulford. Accordingly, we reverse the injunctions and remand for the trial court vacate the injunctions.

REVERSED and REMANDED with directions.

DAVIS, LEWIS and WETHERELL, JJ., concur.


text:
    David LUTZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6587.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    Nancy A. Daniels, Public Defender; and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

While the appellant was on probation for crimes not at issue in this appeal, the State charged him with new substantive offenses: one count of felony petit theft and one count of dealing in stolen property. §§ 812.014(l)(a)-(b), (3)(a), (c); 812.019(1), Fla. Stat. (2008). At the trial, the court read the standard jury instructions concerning theft and dealing in stolen property and informed the jury that a finding of guilty or not guilty as to one crime must not affect its verdict as to the other charged crime. The defense announced it was satisfied with the instructions as read. The jury found the appellant guilty of both petit theft and dealing in stolen property, and the trial court sentenced him on the new offenses as well as on those prior crimes for which he was on probation. Ruling on the appellant’s Florida Rule of Criminal Procedure 8.800(b)(2) motion to correct sentence, the trial court struck the habitual felony offender (HFO) designation from the petit theft conviction and, having received certified, qualifying prior felony judgments and sentences pursuant to section 775.084(l)(a), Florida Statutes (2008), resentenced him to a five-year HFO sentence for dealing in stolen property and to a concurrent five-year non-HFO sentence for petit theft.

The appellant contends that section 812.025, Florida Statutes (2008), precludes him from being convicted and sentenced for both petit theft and dealing in (the same) stolen property by trafficking involving one criminal scheme or continuing course of conduct, and that he is entitled to a new trial pursuant to Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010) (concluding that the trial court’s unchallenged failure to instruct the jury that it could return guilty verdicts on dealing in stolen property or grand theft of the same property, but not both, was fundamental error where the acts involved one scheme or course of conduct, and that merely striking the grand theft charge and sentencing the defendant only on the stolen property counts could not cure the error).

In accordance with the controlling precedents in our own district, we affirm the conviction and HFO sentence for dealing in stolen property, but vacate the conviction and sentence for petit theft and remand for the trial court to correct the judgment and sentence accordingly. See, e.g., Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011) (certifying conflict with Kiss regarding the proper remedy); C.E.C. v. State, 884 So.2d 421 (Fla. 1st DCA 2004); Day v. State, 793 So.2d 68 (Fla. 1st DCA 2001); Smith v. State, 789 So.2d 521 (Fla. 1st DCA 2001); Schummer v. State, 657 So.2d 3 (Fla. 1st DCA 1995); Alexander v. State, 470 So.2d 856 (Fla. 1st DCA 1985). Accord Bishop v. State, 718 So.2d 890 (Fla. 2d DCA 1998); T.S.R. v. State, 596 So.2d 766 (Fla. 5th DCA 1992); Duncan v. State, 503 So.2d 443 (Fla. 2d DCA 1987); Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981).

AFFIRMING the judgment and sentence for dealing in stolen property, VACATING the conviction and sentence for petit theft, and remanding for the trial court to make the appropriate corrections.

WOLF, THOMAS, and ROWE, JJ., concur.


text:
    John F. SHULER, Appellant, v. The CITY OF BRISTOL, Florida, a political Subdivision of the State of Florida, Appellee.
    No. 1D10-0919.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    Jonna L. Bowman of the Law Office of Jonna Bowman, P.A., Blountstown, for Appellant.
    Craig A. Dennis and Melanie M. Bur-nette of Dennis, Jackson, Martin & Fonte-la, P.A., Tallahassee, for Appellee.
   PER CURIAM.

We decline to disturb an award of attorney’s fees ordered to make whole a property owner who was required to incur them in order to procure dissolution of a lien having no arguable legal basis, particularly since the trial court found the lien had been placed vindictively. Cf. S & T Builders v. Globe Props., Inc., 944 So.2d 302, 305 (Fla.2006) (authorizing an award of the fees incurred in procuring the discharge of a wrongly filed lis pendens). We affirm, despite the trial court’s misplaced reference to the “Construction Lien Law.” See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999).

AFFIRMED.

BENTON, C.J., WETHERELL, and ROWE, JJ., concur.


author: SCHWARTZ, ALAN R., Senior Judge.

text:
    PELICAN REAL ESTATE & DEVELOPMENT COMPANY, INC., and William Smith, Appellants, v. Richard BOONE, Appellee.
    No. 1D10-1641.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    Charles Wiggins and J. Nixon Daniel, III, of Betts & Lane, RLLP, Pensacola, for Appellants.
    Robert O. Beasley of Litvak, Beasley & Wilson, LLP, Pensacola, for Appellee.
   SCHWARTZ, ALAN R., Senior Judge.

Both sides appeal an amended final order entered after we remanded the case to the trial court in Boone v. Pelican Real Estate & Dev. Co., Inc., 13 So.3d 528 (Fla. 1st DCA 2009). We need not decide the merits of any of the substantive points raised on appeal or cross-appeal because even considering them is precluded by the effect of the prior judgment and our previous opinion under doctrines of finality, see Arky, Freed, Stearns, Watson, Greer, Weaver Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla.1988) (requiring litigants, in the interests of finality and judicial economy, to “present all claims to the extent possible, at one time, and one time only”), the law of the case, see Florida Department of Transportation v. Juliano, 801 So.2d 101, 105-06 (Fla.2001) (binding trial court “to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case”), and the requirement of strict adherence to the terms of a previous appellate mandate. See St. Lucie Harvesting and Caretaking Corp. v. Cervantes, 664 So.2d 7, 7 (Fla. 4th DCA 1995) (narrowly limiting trial court discretion to deviate from scope of mandate on remand where mandate is clear and decided). The record shows that the trial court properly resolved the very limited issue remanded for its consideration. It was neither required nor permitted to go further.

AFFIRMED.

PADOVANO and CLARK, JJ., concur.


text:
    Shamar McCULLUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6735.
    District Court of Appeal of Florida, First District.
    April 21, 2011.

      Shamar MeCullum, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant seeks review of an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because we agree with the appellant that his two life sentences are illegal, we reverse.

On July 29, 2004, the appellant pled guilty to the charges of attempted second-degree murder and robbery with a firearm. The appellant was seventeen years old, a juvenile, when he committed the offenses. He was sentenced to life imprisonment without the possibility of parole for both offenses.

In 2010, the United States Supreme Court held that the imposition of a life-without-parole sentence on a juvenile offender who did not commit homicide violates the Eighth Amendment’s prohibitions against cruel and unusual punishment. Graham v. Florida, — U.S. -, -, 130 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010). The Court further stated that “[a] state need not guarantee the offender eventual release, but if it imposes a sentence of life, it must provide him or her with some realistic opportunity to obtain release before the end of that term. Id. Since Florida has abolished its parole system, see § 921.002(l)(e) Fla. Stat. (2003), the appellant — a juvenile offender sentenced to life — “has no possibility of release unless he is granted executive clemency.” Graham, 130 S.Ct. at 2020. We conclude the appellant is entitled to relief under Graham.

In doing so, we reject the state’s assertion that an attempted homicide should be treated as an actual homicide under Graham, finding the reasoning in Manuel v. State, 48 So.3d 94 (Fla. 2d DCA 2010), to be persuasive. In Manuel, the defendant pled guilty to, among other offenses, two counts of attempted first-degree murder, and received a life sentence on one count concurrent to forty years’ imprisonment on the second. Id. at 95-96. In keeping with Graham’s new bright-line rule, the court found the defendant’s life sentence was unconstitutional, reasoning:

The Florida Supreme Court has stated that under the definition of homicide, “it is necessary for the act to result in the death of a human being.” Tipton v. State, 97 So.2d 277, 281 (Fla.1957). And as the Graham Court explained, “ ‘[l]ife is over for the victim of the murderer,’ but for the victim of even a very serious nonhomicide crime, ‘life ... is not over and normally is not beyond repair.’ ” Graham, 130 S.Ct. at 2027 (quoting Coker v. Georgia, 433 U.S. 584, 598, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)).... Hence, simple logic dictates that attempted murder is a nonhomicide offense because death, by definition, has not occurred.

Manuel, 48 So.3d at 97.

We agree with this reasoning, and therefore hold that the appellant’s life sentence for attempted second-degree murder is unconstitutional under Graham. The appellant’s concurrent life sentence for robbery with a firearm is likewise illegal.

Accordingly, we reverse and remand to the trial court for vacation of the appellant’s sentence and resentencing in accordance with the Supreme Court’s holding in Graham.

REVERSED and REMANDED.

WEBSTER, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Christopher HUGHES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6771.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    Glenn M. Swiatek, Shalimar, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the November 16, 2010, order which denied a motion filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, in Walton County Circuit Court case number 07-CF-000914. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

WEBSTER, ROBERTS, and WETHERELL, JJ., concur.


text:
    Patrick CARSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0123.
    District Court of Appeal of Florida, First District.
    April 21, 2011.

      Patrick Carson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant seeks review of an order denying a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the judge who entered the order denying the appellant’s rule 3.800(a) motion previously recused himself from the appellant’s trial court case, we reverse.

“Once a trial judge recuses himself from a given case, any subsequent orders he enters in that case are void and have no effect.” Davis v. State, 849 So.2d 1137, 1138 (Fla. 1st DCA 2003); Bolt v. Smith, 594 So.2d 864, 864 (Fla. 5th DCA 1992). This bar includes rulings on subsequent postconviction motions. Meaweather v. State, 732 So.2d 499, 500 (Fla. 1st DCA 1999).

Accordingly, this case is remanded with directions that the chief judge of the circuit court appoint a different judge to consider and rule on the appellant’s rule 3.800(a) motion.

REVERSED.

WEBSTER, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Jerell Jacquez WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0156.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    Ralph R. Deas, Jasper, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed as required by Florida Rule of Appellate Procedure 9.110(d), the appeal is hereby dismissed as untimely. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003).

WEBSTER, ROBERTS, and WETHERELL, JJ., concur.


text:
    Jessey SHEPARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0450.
    District Court of Appeal of Florida, First District.
    April 21, 2011.

      Jessey Shepard, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the October 8, 2010, order denying a motion for postconviction relief in Escambia County Circuit Court case number 2007-CF-003732-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

WEBSTER, ROBERTS, and WETHERELL, JJ., concur.


text:
    James INGRAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0554.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    James Ingram, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha -Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of mandamus seeks to compel a ruling on a motion for leave to supplement. Petitioner alleges that he filed the motion in the circuit court in 2003; however, the circuit court has no record of ever receiving the motion. Accordingly, because there is no pleading pending below, the petition for writ of mandamus is denied. See Casen v. McDonough, 962 So.2d 977 (Fla. 1st DCA 2007).

Petitioner alleges that he did timely place his pleading into the hands of prison officials for mailing. Accordingly, within 30 days of issuance of mandate in this cause, petitioner shall file with the clerk of the circuit court a copy of the pleading. See Rife v. State, 958 So.2d 1053 (Fla. 1st DCA 2007); Hartley v. Fla. Dep’t of Corrections, 954 So.2d 684 (Fla. 1st DCA 2007).

PETITION DENIED.

WEBSTER, ROBERTS, and WETHERELL, JJ., concur.


text:
    Elbert FRANCIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0805.
    District Court of Appeal of Florida, First District.
    April 21, 2011.

      Elbert Francis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of habeas corpus challenges a recent decision of this court in a postconviction appeal. In ease number 1D09-6298, petitioner sought appellate review of the summary denial of the motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The appeal was affirmed and a motion for rehearing was denied. See Francis v. State, 34 So.3d 5 (Fla. 1st DCA 2010) (table). This petition for writ of habeas corpus is nothing more than an improper effort to seek rehearing of the prior per curiam affirmance of this court. This petition is not only an inappropriate use of a habeas petition, but a waste of this court’s resources where petitioner had already filed an unsuccessful motion for rehearing in the prior appeal. We find the petition to be frivolous.

Petitioner was directed to show cause why sanctions should not be imposed against him, including a prohibition against any future appeals or petitions challenging the judgment and sentence, unless petitioner is represented by an attorney in good standing with The Florida Bar. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions. We decline to bar further pro se filings from petitioner at this time, but we caution petitioner that further frivolous filings related to his 1988 conviction may result in that sanction being imposed. Additionally, pursuant to section 944.279, Florida Statutes, we direct the Clerk to forward a certified copy of this opinion to the appropriate facility in the Department of Corrections for disciplinary action against petitioner.

The petition for writ of habeas corpus is DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that ha-beas relief cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions and that such petitions are subject to being dismissed as unauthorized).

BENTON, C.J., PADOVANO and WETHERELL, JJ., concur.


text:
    David Jon ANDRIESSE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1603.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    Matt Shirk, Public Defender, and James S. Forrest, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the judgments and sentences rendered on September 27, 2010, in Duval County Circuit Court case numbers 16-2010-CF-008808-AXXX-MA and 16-2009-CF-000226-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WEBSTER, ROBERTS, and WETHERELL, JJ., concur.


text:
    Gerald LELIEVE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3033.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Gerald Lelieve, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

Gerald Lelieve appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion as untimely filed. We reverse.

Pursuant to rule 3.850(b), an inmate has two years from the date on which a conviction and sentence become final within which to file a motion for post-conviction relief. Lelieve’s direct appeal became final for purposes of this rule when the mandate issued on May 29, 2009. He filed his motion on February 9, 2010. Thus, Le-lieve timely filed his motion.

Additionally, the State filed a response below arguing that the motion, if timely, should nevertheless be denied because it was alleging a scoresheet error, and rule 3.850 was not the proper mechanism for relief on a scoresheet error. Lelieve, however, is not complaining about a scoresheet error. He is alleging that his trial counsel was ineffective for failing to object to several errors on the scoresheet, to wit, points for prior offenses which had been resolved as “no action.”

Reversed and Remanded.


text:
    L.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2885.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    L.A., a juvenile, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the judgment, but remand with directions that the trial court correct the adjudicatory order to conform to both its oral pronouncement of April 12, 2010, and the notes reflected in the Case History, also dated April 12, 2010.

Specifically, the adjudicatory order should reflect that: L.A. committed the act described in Count II (burglary of an unoccupied conveyance); a judgment of dismissal was granted on Count I (grand theft of a vehicle); and a finding of not guilty was entered on Count III (resisting an officer without violence). See N.G. v. State, 50 So.Sd 801 (Fla. 3d DCA 2011); Parajon v. State, 50 So.3d 105 (Fla. 3d DCA 2010). L.A. need not be present.

Affirmed as modified.


text:
    CARIBBEAN FIRE AND ASSOCIATES, INC., Appellant, v. COASTAL CONSTRUCTION GROUP OF SOUTH FLORIDA, etc., Appellee.
    No. 3D10-1268.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Beth M. Gordon, for appellant.
    Thornton, Davis & Fein; and Barry L. Davis and Daniella Friedman, Miami, for appellee.
    Before GERSTEN, SUAREZ and EMAS, JJ.
   PER CURIAM.

Affirmed. See Wasa Int’l Ins. Co. v. Hurtado, 749 So.2d 579 (Fla. 3d DCA 2000); Westinghouse Elec. Corp. v. Metro. Dade Cnty., 592 So.2d 1134 (Fla. 3d DCA 1991.)


text:
    M.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1151.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.

      Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Zack v. State, 911 So.2d 1190, 1209 (Fla.2005).


text:
    Jose ZAMORA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3445.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the defendant’s judgments and convictions for first-degree murder, carjacking and burglary with an assault. We find no merit to the defendant’s argument that the court erred in permitting the detective’s testimony regarding the citation issued to defendant for driving with a suspended license. This was not Williams rule evidence. The suspended license violation was a charged offense, albeit an offense not being tried at that juncture.

Additionally, evidence of a crime that is “inseparable from the crime charged or evidence which is inextricably intertwined with the crime charged , is not Williams rule evidence.” Griffin v. State, 639 So.2d 966, 968 (Fla.1994). As the driving with a suspended license was part and parcel of the episode that led to the charges at issue in the trial, no impermissible Williams rule evidence was presented to the jury.

Affirmed.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    W.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2706.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

      Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The adjudication below is affirmed. The costs assessed, however, of $3 for teen courts pursuant to Section 939.90, Florida Statutes, $65 additional court costs and $85 temporary criminal surcharge pursuant to section 939.185(l)(a)-(b), Florida Statutes, and $50 for a crimes prevention program pursuant to section 775.083(2)(a), Florida Statutes,' were unauthorized and are vacated. See S.F. v. State, 56 So.3d 116 (Fla. 3d DCA 2011).

Affirmed in part; stricken in part.


text:
    Roberto PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1922.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Rehearing Denied May 17, 2011.
    Eduardo Soto and Javier Morales, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and LAGOA and SALTER, JJ.
   PER CURIAM.

Affirmed. See State v. Sinclair, 995 So.2d 621, 623 (Fla. 3d DCA 2008) (“In order to establish prejudice as a result of the failure to advise a defendant of the deportation consequences of a plea, ‘[t]he burden is on the movant to establish that the plea in the case under attack is the only basis for deportation. Only then can the movant show prejudice resulting from the failure to advise of deportation consequences in the case under attack.’ ” (quoting Forrest v. State, 988 So.2d 38, 40 (Fla. 4th DCA 2008) (emphasis added in original))).


text:
    Ramon Eduardo RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-609.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Julio Gutierrez, Hialeah, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Lissette ESTRADA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-507.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Lissette Estrada, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.800(c).


text:
    Marylynn SOTERO, Appellant, v. George SULLIVAN, Appellee.
    No. 3D11-295.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Andrew L. Salvage, Fort Lauderdale, for appellant.
    Steven A. Nullman, Miami, for appellee.
    Before WELLS, SALTER, and EMAS, JJ.
   EMAS, J.

Appellant Marylynn Sotero appeals from a January 4, 2011, non-final order appointing a co-parenting therapist. Appellant contends that the order improperly, and without Appellant’s consent:

1. Delegates to the therapist the authority to make binding decisions regarding the minor child;
2. Delegates to the therapist the authority to impose monetary sanctions upon the parents;
3. Waives the confidentiality of Appellant’s communications with the co-parenting therapist; and
4. Waives Appellant’s psychotherapist-patient privilege as to communications with her own individual therapist.

Upon Appellee’s “Notice of Intent Not to File Answer Brief and Consent to Order Being Vacated” (which we treat as a confession of error), we vacate the order and remand this cause to the trial court for further proceedings, including the entry of an order consistent with sections 61.125 and 90.503, Florida Statutes (2010), and Florida Family Law Rules of Procedure 12.742 and 12.998.

Reversed and remanded.


text:
    Ramon A. BENJAMIN a/k/a Ramon Amaro Benjamin, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-218.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Ramon A. Benjamin a/k/a Ramon Amaro Benjamin, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Jorge Luis REGALADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-84.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Michael A. Pizzi, Jr., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, CORTINAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: SUAREZ, J.

text:
    Luckner Martino PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-19.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.

      Luckner Martino Pierre, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTIÑAS, JJ.
   ON MOTION FOR REHEARING

SUAREZ, J.

We grant the State’s motion for rehearing and vacate'- the opinion of this court issued March 2, 2011. We affirm the order denying Luckner Martino Pierre’s motion for post-conviction relief. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011) (certifying questions and conflict with Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010)).

Affirmed.