author: WISE, Presiding Judge.

text:
    Charles Lee McGOWAN v. STATE of Alabama.
    CR-09-0411.
    Court of Criminal Appeals of Alabama.
    Nov. 5, 2010.

      Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Charles Lee McGowan, was convicted of murder, a violation of § 13A-6-2(a)(l), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to imprisonment for life without the possibility of parole. See § 13A-5-9(c), Ala.Code 1975. McGowan did not file any posttrial motions. This appeal followed.

I.

McGowan argues that the trial court erroneously granted the State’s challenge for cause of Veniremember E.J. During the voir dire proceedings, the following occurred:

“[PROSECUTOR]: So as a wrap-up question, is there any reason anybody can think of they couldn’t be fair and impartial, other than the people that have answered some things in private they need to talk about, you couldn’t be fair and impartial, or there’s something else you need to say? Yes, ma’am?
“[VENIREMEMBER E.J.]: .... I know you hadn’t asked the question.
“[PROSECUTOR]: Yes, ma’am.
“[VENIREMEMBER E.J.]: But I have a question. I wouldn’t like to appear on a murder case.
“[PROSECUTOR]: You would?
“[VENIREMEMBER E.J.]: I wouldn’t like to be involved in a murder case.
“[PROSECUTOR]: Uh-huh.
“[VENIREMEMBER E.J.]: And I don’t know if I could be excused from that, because I guess I could give a fair judgment if I had to, but personal and I don’t know if you have asked it or but myself personal, I would not like to be on a murder case.
“[PROSECUTOR]: Well, we ask the question about whether or not anybody had any religious reasons that would keep you from being on it. Occasionally somebody will say, well, because of my religion I feel that I couldn’t in essence sit in judgment of my fellow man. Do you have a religious—
“[VENIREMEMBER E.J.]: I can’t say my religion, but then maybe this is part of it, because I would not like to be the one to judge someone else, you know, I just in a murder trial. I just wouldn’t — I don’t feel comfortable with it. And I’m just being honest with you about it.
“[PROSECUTOR]: Oh, that’s what we want.
“[VENIREMEMBER E.J.]: Like I said, you might not ask the question, but that’s how I feel personal.
“[PROSECUTOR]: And probably a lot of people wouldn’t want to sit on a murder case. But what is it and if you want to answer in private, you can, but if you can just stand back up so the court reporter can hear it and I will get out of her way.
“What is it about serving on a mui’der case that would make you uncomfortable?
“THE COURT: [Veniremember E.J.], if you would stand up again. Thank you.
“[VENIREMEMBER E.J.]: .... I just I wouldn’t feel right by sentencing — and, like you said, this is circumstantial evidence.
“[PROSECUTOR]: Yes, ma’am.
“[VENIREMEMBER E.J.]: This is something that didn’t no one see. This is something you just trying to gather up evidence for no, no, no.
“[PROSECUTOR]: That’s not exactly the way it goes.
“[VENIREMEMBER E.J.]: I might be saying the wrong thing. I might be wording this wrong. But you say it’s circumstantial. And it’s a difference maybe if someone say, well, I saw. And maybe I can say, well, yeah, I — you know, that’s true. But then I know myself personal. I really even if you know, someone had saw this, you know, a witness, I still I just don’t want to be on a murder case. It’s just something I’ve always felt like I don’t and I can’t pin it on anything but, you know, you’re asking us to be honest.
“[PROSECUTOR]: Yes, ma’am.
“[VENIREMEMBER E.J.]: So I am being honest.
“[PROSECUTOR]: And I know you’re saying you don’t want to be.
“[VENIREMEMBER E.J.]: Yes.
“[PROSECUTOR]: But it also sounds like you’re saying you don’t think you could really and truly put those feelings aside?
“[VENIREMEMBER E.J.]: Yes. And I don’t want to be a drag to the jury saying please don’t.
“THE COURT: Let me do this for you. This may help. This is the oath if anyone is selected to be a juror, this is the oath that you will have to take. And it is,
“ ‘Do you and each of you solemnly swear or affirm that you will well and truly try the issues joined between the State of Alabama and this defendant and a true verdict render according to the law and the evidence.’
“That’s what your oath will have to be if you sit on this jury.
“[VENIREMEMBER E.J.]: The only thing I can say I will do the best I can, but that’s—
“[PROSECUTOR]: You just keep shaking your head when you say that, and it seems—
“[VENIREMEMBER E.J.]: I know. I’m trying to be real honest.
“[PROSECUTOR]: That’s fine. We want to hear it. Like you said, we don’t want somebody who’s going to, as you say, be a drain on the jury, or know that you have such strong feelings about this and you feel like you couldn’t be totally fair?
“[VENIREMEMBER E.J.]: I don’t know.
“[PROSECUTOR]: Let the record reflect she’s shaking her head and said, T don’t know, I don’t know.’
“[VENIREMEMBER E.J.]: I really don’t, because I really don’t want to be on a murder case.
“THE COURT: [Veniremember E.J.], I think we’ve probably gone about as far as we can on that. So rather than us get into any more detail, let’s move on.”

(R. 150-54.)

Subsequently, the State challenged Veniremember E.J. for cause, and the following occurred:

“[PROSECUTOR]: ... 33 is [Venire-member E.J.], who doesn’t think much of circumstantial evidence and feels like she would have a really hard time.
“THE COURT: And she doesn’t want to be — she’s the one that doesn’t want to be on a murder case.
“[PROSECUTOR]: Yeah.
“THE COURT: [Defense counsel], what do you say about that?
“[DEFENSE COUNSEL]: Judge, I know she said she didn’t want to be on it, but I don’t know if it rises to the level of cause.
“THE COURT: Well, I think it does. I’m going to grant 33.”

(R. 181.)

“The trial judge is given much discretion in determining whether a potential juror should be struck for cause. According to Rule 18.4(e), Ala. R.Crim. P.:
“ ‘When a prospective juror is subject to challenge for cause or it reasonably appears that the prospective juror cannot or will not render a fair and impartial verdict, the court, on its own initiative or on motion of any party, shall excuse that juror from service in the case.’
“Although § 12-16-150, Ala.Code 1975, lists 12 ‘good ground[s] for challenge of a juror by either party,’ the trial judge may remove a potential juror if probable prejudice exists, even if none of the statutory grounds apply. Motes v. State, 356 So.2d 712, 718 (Ala.Cr.App.1978). The trial judge’s discretion, however, is not unlimited. This Court stated in Clark v. State, 621 So.2d 309, 321 (Ala.Cr.App.1992):
“ ‘[W]hile the statutory grounds for challenges of jurors for cause enumerated in § 12-16-150, Code of Alabama 1975, are not all inclusive, there must be some ground that indicates probable prejudice in order to disqualify a prospective juror. Collins v. State, 385 So.2d 993, 999-1000 (Ala.Cr.App.1979), reversed on other grounds, 385 So.2d 1005 (Ala.1980). Where the ground is nonstatutory, it must be “some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court.” Nettles v. State, 435 So.2d 146, 149 (Ala.Cr.App.), affirmed, 435 So.2d 151 (Ala.1983)....’
“Furthermore, in order to determine whether the trial judge’s exercise of discretion was proper, this Court will look to the questions directed to and answers given by the prospective juror on voir dire. Ex parte Cochran, 500 So.2d 1179 (Ala.1985).”

Holliday v. State, 751 So.2d 533, 535 (Ala.Crim.App.1999). Additionally, “ ‘[t]he trial judge is in the best position to hear a prospective juror and to observe his or her demeanor.’ ” McNair v. State, 653 So.2d 320, 324 (Ala.Crim.App.1992) (quoting Ex parte Dinkins, 567 So.2d 1313, 1314 (Ala.1990)). Finally,

“[t]he test for determining whether a strike rises to the level of a challenge for cause is ‘whether a juror can set aside their opinions and try the case fairly and impartially, according to the law and the evidence.’ Marshall v. State, 598 So.2d 14, 16 (Ala.Cr.App.1991). ‘Broad discretion is vested with the trial court in determining whether or not to sustain challenges for cause.’ Ex parte Nettles, 435 So.2d 151,153 (Ala.1983). ‘The decision of the trial court “on such questions is entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion.” ’ Nettles, 435 So.2d at 153.”

Dunning v. State, 659 So.2d 995, 997 (Ala.Crim.App.1994).

Although Veniremember E.J. initially stated that she “guess[ed] [she] could give a fair judgment if [she] had to,” she also indicated that she did not want to serve on a murder case, that she would not like to be the one to judge someone else, and that she would not “feel right by sentencing.” She further indicated that she would have a problem with circumstantial evidence. Finally, Veniremember E.J. ultimately stated that she did not know if she could set aside her feelings and be totally fair. Based on Veniremember E.J.’s responses during the voir dire proceedings, the trial court’s granting of the State’s challenge for cause was not clearly erroneous. Therefore, McGowan’s argument is without merit.

II.

McGowan also argues that the trial court erroneously found that he had at least three prior felony convictions for purposes of enhancing his sentence pursuant to the Habitual Felony Offender Act (“the HFOA”) set forth in § 13A-5-9, Aa.Code 1975. Specifically, he contends that only two of the prior convictions were valid convictions pursuant to the HFOA. At sentencing, the State introduced five exhibits into evidence. State’s Exhibit # 1 was a certified copy of McGowan’s 1988 Illinois conviction for robbery. State’s Exhibit # 2 was a certified copy of McGowan’s 1989 Illinois conviction for receiving, possessing, or selling a stolen vehicle. State’s Exhibit # 3 was a certified copy of McGowan’s 1992 Wisconsin convictions for battery as a habitual offender, criminal damage to property as a habitual offender, and criminal trespass to a dwelling as a habitual offender. State’s Exhibit # 4 was a certified copy of McGowan’s 1993 Wisconsin conviction for battery as a habitual offender. State’s Exhibit # 5 was a certified copy of McGowan’s 1995 Wisconsin conviction for aggravated battery as a habitual offender.

A.

Initially, McGowan contends that the trial court should not have considered his Wisconsin convictions set forth in State’s Exhibits # 3 and # 4. The certified copies of the convictions in State’s Exhibits # 3 and # 4 indicate that McGowan entered pleas of “no contest” in those cases. Therefore, those convictions could not properly be used to enhance McGowan’s sentence. See Buckner v. State, 632 So.2d 974 (Ala.Crim.App.1993).

B.

McGowan also contends that the trial court should not have considered his Illinois conviction for receiving, possessing, or selling a stolen vehicle. Specifically, he asserts that the State did not prove that the conduct that formed the basis for that conviction would have constituted a felony in Alabama because the State did not prove the value of the stolen vehicle in that case.

“In Alabama, the State bears the burden of proving the existence of prior felony convictions for enhancement under the HFOA. See Tyler v. State, 683 So.2d 1062 (Ala.Crim.App.1995), aff'd, 683 So.2d 1065 (Ala.1996); Reynolds v. State, 615 So.2d 94 (Ala.Crim.App.1992); and Meadows v. State, 473 So.2d 582 (Ala.Crim.App.1985). Rule 26.6(b)(3)(iii), Ala. R.Crim. P., provides:
“ ‘At the [sentencing] hearing, the burden of proof shall be on the state to show that the defendant has been convicted of a previous felony or felonies. Evidence may be presented by both the state and the defendant as to any matter the court deems relevant to the application of the law. In determining disputed facts, the court shall use the standard of proof beyond a reasonable doubt. If at the hearing the defendant disputes any conviction presented by the state, the court may allow the state to present additional evidence of the disputed conviction, either by way of rebuttal or at a future time to be set by the court. If the state fails to meet its burden of proof to establish one or more prior felony convictions, then the defendant shall not be sentenced as an habitual offender.’ ”

Ginn v. State, 894 So.2d 793, 798 (Ala.Crim.App.2004).

“ ‘It is well settled that [i]n determining whether an out-of-state conviction will be used to enhance punishment pursuant to the HFOA, the conduct upon which the foreign conviction is based must be considered and not the foreign jurisdiction’s treatment of that conduct.’ Daniels v. State, 621 So.2d 335, 342 (Ala.Crim.App.1992). However, ... whether the conduct upon which the foreign conviction was based constituted a felony in Alabama at the time the conduct occurred is irrelevant. Rather, pursuant to Rule 26.6(b)(3)(iv), Ala. R.Crim. P., the pi’oper inquiry is whether the conduct upon which the foreign conviction was based would have been a felony in Alabama had it been committed on or after January 1, 1980. Rule 26.6(b)(3)(iv) specifically provides:
“ ‘ “Any conviction in any jurisdiction, including Alabama, shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under Act 607, § 130(4), Acts of Alabama 1977, p. 812 (§ 13A-l-2(4), Alabama Criminal Code), or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980; and further, a conviction of a crime against the United States shall be considered to be a felony conviction if that crime is punishable by imprisonment in excess of one (1) year under federal law, and was so punishable at the time of its commission, even if the conduct made the basis of that conviction would not be punishable under Alabama law.” ’
“(Emphasis added.)
“On January 1, 1980, the effective date of the Alabama Criminal Code, receiving stolen property was defined as follows:
“ ‘§ 13A-8-19. Receiving stolen property in the third degree.
“‘(a) Receiving stolen property which does not exceed $100.00 in value constitutes receiving stolen property in the third degree.
“ ‘(b) Receiving stolen property in the third degree is a Class A misdemeanor.’
‘“§ 13A-8-18. Receiving stolen property in the second degree.
“ ‘(a) Receiving stolen property:
“ ‘(1) Which exceeds $100 in value but does not exceed $1,000 in value; or
“ ‘(2) Of any value under the circumstances described in subdivision (b)(3) of section 13A-8-16;
“[constitutes receiving stolen property in the second degree.]
“ ‘(b) Receiving stolen property in the second degree is a Class C felony.”
“ ‘§ 13A-8-17. Receiving stolen property in the first degree.
“‘(a) Receiving stolen property which exceeds $1,000.00 in value constitutes receiving stolen property in the first degree.
“ ‘(b) Receiving stolen property in the first degree is a Class B felony.’
“Those subsections remained unchanged until 2003.4 Thus, in 1980 Alabama defined receipt of stolen property valued at less than $100.00 to be a misdemeanor.
“The conduct underlying Skinner’s charge of receiving stolen property in California (no. 238385) is found in the unpublished memorandum issued by the Court of Appeal of the State of California Fifth Appellate District (No. F011958, February 27, 1990), which is attached as exhibit D to Skinner’s second Rule 32 petition (CR-03-1882). The memorandum discloses that Skinner and two others were involved in the burglary of a home. Jewelry, a jewelry box, a VCR, a telephone-answering machine, and a pillowcase were taken. Some of the jewelry was discarded, some of the jewelry was pawned, and some of the jewelry and the jewelry box were traded for ‘one big rock and some smaller chips of cocaine.’ (Record from second Rule 32 (CR-03-1882) at CR. 113.) The VCR was sold for ‘cocaine valued at $70.’ (Record from second Rule 32 (CR-03-1882) at CR. 113.) However, whether Skinner was in possession of stolen property with a value greater than $100 was not discussed in that memorandum.

Skinner v. State, 987 So.2d 1172, 1175-77 (Ala.Crim.App.2006).

During the sentencing hearing in this case, the following occurred:

“[PROSECUTOR]: The next one. State’s Exhibit 2. This was the 1989 conviction also out of Cook Countyf, Illinois]. This one is a little bit harder for me to discern exactly how this would be treated here. It appears to be certainly a receiving stolen property case. And I would submit that it would qualify as a receiving stolen property 2nd degree in Mobile.
“In this one, he is charged with not being entitled to the possession of a motor vehicle, to-wit, a 1985 Oldsmobile, the property of Helen Hadley. Possessed it knowing it to have been stolen, in violation of the applicable statute.
“So this was a 1985 Oldsmobile. And the case started in ‘89. So even though it does not specifically state a value, I think it could be reasonably assumed that that would meet the criteria for a felony.
“THE COURT: In Alabama, that would be between $500 and $2,500; is that correct? []
“[PROSECUTOR]: I believe that’s right, Judge.
“[DEFENSE COUNSEL]: Judge, we would object. There’s nothing in here regarding the condition of this motor vehicle. There’s nothing in here stating the value of the motor vehicle. We don’t know if this was a damaged vehicle. And I don’t think the State has proven that it was worth $500. There’s nothing in there of value, therefore, I don’t think they have proven this as a felony in the State of Alabama.
“THE COURT: And the Court will acknowledge that that information is not present. The sentence in this case was for three years; is that correct?
“[PROSECUTOR]: Yes, sir.
“THE COURT: And while that may or may not tell us all we need to know. Was he treated as a habitual offender at that time?
“[PROSECUTOR]: Yes, sir, I do believe so.
“THE COURT: It would certainly indicate that it would have been treated as a felony in the State of Alabama.
“[PROSECUTOR]: It says the defendant was convicted in ‘88 of robbery due to his prior record and his attempt to flee the police. He should not be considered for early release. So, yes, he was.
“THE COURT: The Court will consider it at this time to be a felony, and I will look at it when we look through all of them to determine whether I can disregard that one or not.
“[DEFENSE COUNSEL]: Judge, and just to make sure my objection is clear. We would argue that, even though they may have determined that to be the law in Illinois, for sentencing it would be the law in the State of Alabama. And we don’t think that that meets a felony in the State of Alabama without a value.
“THE COURT: And the Court will take that into consideration. It may be one that I may disregard at a later time.
“[DEFENSE COUNSEL]: Yes, Your Honor.”

(R. 570-73.) Later, the trial court indicated that it was considering McGowan’s conviction for receiving, possessing, or selling a stolen vehicle to be a Class C felony.

The documents regarding McGowan’s Illinois conviction for receiving, possessing, or selling a stolen vehicle did not include any information regarding the value of the stolen vehicle. Also, the State did not present any evidence regarding the value of the stolen vehicle. Rather, it relied on a mere assumption to support its contention that the conviction would have constituted a felony in Alabama. Therefore, the State did not satisfy its burden of proving beyond a reasonable doubt that McGowan’s Illinois conviction for receiving, possessing, or selling a stolen vehicle would have constituted a felony in Alabama. Finally, the fact that McGowan received a three year sentence in that case and the fact that Illinois treated him as a habitual offender in that case was irrelevant in determining whether the offense would have constituted a felony in Alabama. Accordingly, the trial court improperly used that conviction to enhance McGowan’s sentence.

For the above-stated reasons, we affirm McGowan’s conviction. However, we remand this case with instructions that the trial court set aside McGowan’s sentence of imprisonment for life without the possibility of parole and resentence McGowan without consideration of the Wisconsin convictions set forth in State’s Exhibits # 3 and # 4 and without consideration of the Illinois conviction for receiving, possessing, or selling a stolen vehicle set forth in State’s Exhibit #2. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days after the release of this opinion. The return to remand shall include a transcript of the new sentencing hearing.

AFFIRMED AS TO CONVICTION; REMANDED WITH INSTRUCTIONS AS TO SENTENCE.

WINDOM, KELLUM, and MAIN, JJ„ concur. WELCH, J., concurs in the result.

      . During sentencing, the parties relied on the threshold values set forth in the receiving stolen property statutes as amended in 2003. However, "Rule 26.6(b)(3)(iv) specifically provides that if the conduct forming the basis of the foreign conviction would have constituted a felony had it taken place in Alabama 'on or after January 1, 1980,’ then the foreign conviction is considered to be a felony conviction for purposes of the HFOA. Nothing in the rule requires that the conduct constitute a felony continuously from January 1, 1980, to the present.” Ginn v. State, 894 So.2d 793, 801 (Ala.Crim.App.2004). Therefore, the State was required to prove only that the value of the stolen vehicle exceeded $100 to prove that the offense constituted a felony in Alabama.

       Note from the reporter of decisions: On January 14, 2011, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On May 6, 2011, that court denied rehearing, without opinion. On January 13, 2012, the Supreme Court denied certiorari review, without opinion (1100892).

       4 It was not until the 2003 amendment, effective September 1, 2003, that subsection (a) of receiving stolen property in the third degree was amended to substitute $500.00 for $100.00. § 13A-8-19, Ala.Code 1975, Code of Commissioner’s History, Amendment notes.”


source: Caselaw Access Project

author: WISE, Presiding Judge. BURKE, Judge.

license: Public Domain

text:
    Feion Judio McQUIETER v. STATE of Alabama.
    CR-09-1760.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Opinion on Return to Remand Dec. 16, 2011.

      Feion McQuieter, pro se.
    Troy King, atty. gen., and Robin Denise Scales, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Feion Judio McQuieter, entered a plea of guilty to murder. The trial court sentenced him to serve a term of twenty years in prison, but split the sentence and ordered him to serve four years followed by five years on supervised probation. On September 13, 2007, the circuit court revoked McQuieter’s probation. On June 22, 2010, McQuieter filed a “Petition for Resentencing Pursuant to § 15-22-54.1 (Technical Violation of Probation).” Without requiring a response, the circuit court summarily denied the petition. This appeal followed.

McQuieter argues that the circuit court erroneously denied his petition on the ground that it did not have jurisdiction to modify the term of his sentence. Section 15-22-54.1, Ala.Code 1975, provides:

“(a) Any person convicted of a nonviolent offense now serving a prison sentence based on revocation of probation as a result of only technical violations shall be entitled, to be resentenced upon petition to the sentencing court. Such petition shall be on a form and filed in the manner prescribed by the Administrative Office of Courts. Petitions shall be considered authorized motions for modification of sentence, assigned a unique identifier by the Administrative Office of Courts, and shall not require payment of a filing fee.
“(b) The court shall have jurisdiction to resentence the offender in accordance with the terms of this section, upon a showing of the following:
“(1) The offender successfully completed the terms of probation for six months.
“(2) Probation was thereafter revoked and the offender was sentenced to the penitentiary only as a result of technical violations of probation.
“(3) The offender has no disciplinary infractions while serving the sentence in the penitentiary.
“(4) The offender has no pending charges or convictions for a new offense.”

(Emphasis added.) In its order dismissing the petition, the circuit court found as follows:

“This matter comes before the Court on [McQuieter’s] Petition for Resentencing Pursuant to 15-22-51.1 (Technical Violation of Probation).
“[McQuieter] was revoked for 20 years. This is a ‘straight sentence.’ The Court no longer has jurisdiction to modify the term of the sentence as it would with a split sentence. Thus, [McQuieter’s] Motion is DENIED.”

(C.R. 16.)

In Thompson v. State, 967 So.2d 729, 730-32 (Ala.Crim.App.2007), we addressed a similar situation with regard to motions to reconsider sentences pursuant to § 13A-5-9.1, Ala.Code 1975, as follows:

“The appellant argues that the circuit court erred when it denied his motion to reconsider his sentence in case number CC-94^429. In its order denying the petition, the circuit court found as follows:
“ ‘The defendant has filed a Motion pursuant to § 13A-5-9.1, Code of Alabama 1975, for the Court to apply amended § 13A-5-9 retroactively to modify his life sentences in each of the above numbered cases. For the reasons set forth below, the defendant does not qualify for a retroactive modification of those sentences.
“ ‘The Morgan County grand jury indicted the defendant for the unlawful sale of cocaine in Case No. CC 94-429, for two counts of first degree robbery in Case No. CC 95-831 and for one count of first degree robbery in Case No. CC 96-339. Having at least four prior felony convictions and being faced with the prospects of two mandatory life without parole sentences if convicted of robbery in the first degree, a Class A felony, in Case Nos. CC 95-831 and CC 96-339, the defendant negotiated the following plea agreement with the State: he would plead guilty to third degree robbery, a lesser included offense, in each of Case Nos. CC 95-831 and CC 96-339 and to the unlawful sale of cocaine, a Class B felony, in Case No. CC 94^429. In consideration of these pleas, the State agreed to recommend that he be sentenced to life imprisonment on each conviction to run concurrent with each other. The Court accepted the proposed agreement and upon the defendant’s pleas of guilty, sentenced him in accordance with the State’s recommendation.
“ ‘There are only two classes of convicted defendants who qualify for retroactive modification of their sentences imposed pursuant to the Habitual Felony Offender Act (HFOA): those sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony with no prior Class A felony convictions; and those sentenced to mandatory life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. In Case Nos. CC 95-831 and CC 96-339, the defendant does not fall into either of these classes because he was convicted of Class C felonies which had a punishment range under the HFOA of fifteen years minimum to life or 99 years maximum.
“ ‘While the defendant did receive the mandatory life sentence under the HFOA on his conviction for the unlawful sale of cocaine, a Class B felony, in Case No. CC 94-429, a retroactive reduction of that concurrent sentence pursuant to § 13A-5-9.1 would be a useless act and serve no purpose. The defendant would still have to serve the life sentences imposed in the other two cases on his third degree robbery convictions because the Court has no authority to modify those sentences.
“ ‘The Court is satisfied, therefore, that the defendant is not qualified as a matter of law to have his three life sentences modified pursuant to § 13A-5-9.1, Code. It is ORDERED AND ADJUDGED by the Court that his Motion for court ordered evaluation by the Department of Corrections and for the retroactive modification of his sentences is denied.’
“(C.R. 43-44.)
“With regard to case number CC-95-831 and case number CC-96-339, we agree with the circuit court’s finding that the appellant was not eligible for reconsideration of his sentences. With regard to case number CC-94-429, we addressed a similar situation in Ferrell v. State, 944 So.2d 162, 163-64 (Ala.Crim.App.2006), as follows:
“ ‘The appellant argues that the circuit court improperly determined that he was not eligible for reconsideration of his sentence.
“ ‘ “There are three requirements for eligibility to have a sentence reconsidered under § 13A-5-9.1: (1) the inmate was sentenced before May 25, 2000, the date the 2000 amendment to the HFOA became effective; (2) the inmate was sentenced to life imprisonment without the possibility of parole pursuant to § 13A-5-9(c)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § 13A-5-9(c)(2), see Prestwood [v. State, 915 So.2d 580 (Ala.Crim.App.2005) ]; and (3) the inmate is a ‘nonviolent convicted offender.’ An inmate must satisfy all three requirements before he or she is eligible for reconsideration of sentence under § 13A-5-9.1.”
‘Holt v. State, 960 So.2d 726, 734-35 (Ala.Crim.App.2006).
“ ‘On September 15, 2005, the circuit court entered an order in which it found that the appellant satisfied the first two requirements set forth in Holt and ordered DOC [the Alabama Department of Corrections] to provide information it could use to determine whether the appellant was a nonviolent offender. After DOC responded, the circuit court denied the appellant’s motion, stating in part:
“ ‘ “Upon a review of the records supplied by the Department of Corrections the Court has determined that the Defendant was paroled on this case on June 15, 1992. His parole was revoked on July 5, 2000 and he was sent back to continue serving his sentence. He was paroled again on July 30, 2001. His parole was revoked again on January 31, 2005.
“ ‘ “Section 13A-5-9.1, Code of Alabama, 1975, as amended, states in part ‘... for consideration of early parole.... ’ This Court finds that the Defendant has already received the benefit of early parole and is therefore not eligible for relief.”
“ ‘(C.R. 57.)
“ ‘Although the circuit court found that the appellant satisfied the first two eligibility requirements set forth in Holt, it did not determine whether he was a nonviolent offender. Rather, it determined that he was not eligible for reconsideration of his sentence because he had previously been paroled. Once eligibility has been determined, the fact that an offender has previously been paroled may be a relevant and material factor to consider when deciding whether to resentence the offender. However, it is not relevant when making the initial determination of whether the offender is eligible to have his sentence reconsidered. Because the circuit court erroneously based its determination that the appellant was not eligible to have his sentence reconsidered on the fact that he had previously been paroled, it erred when it denied his motion on that ground. Accordingly, we reverse the circuit court’s judgment and remand this case to the circuit court for that court to set aside its order denying the appellant’s motion for reconsideration and to consider the appellant’s motion pursuant to this court’s holding in Holt.’
“(Footnote omitted.) See also Vinson v. State, 950 So.2d 1233 (Ala.Crim.App.2006); White v. State, 947 So.2d 436 (Ala.Crim.App.2006).
“In case number CC-94-429, the record indicates that the appellant satisfied the first two eligibility requirements set forth in Holt. However, the circuit court did not determine whether he was a nonviolent offender. Rather, it found that he was not eligible for reconsideration of his sentence in case number CC-94-429 based on its determination that resentencing him would be pointless because he was also serving life sentences in two other cases. Once eligibility has been determined, the fact that resen-tencing the offender in a particular case would be pointless because he is also serving another sentence may be a relevant and material factor to consider when deciding whether to resentence him. However, it is not relevant when making the initial determination of whether the offender is eligible to have his sentence reconsidered. Therefore, the circuit court erroneously based its determination that the appellant was not eligible to have his sentence in case number CC-94-429 reconsidered on the fact that it would be pointless because he was also serving life sentences in two other cases. See Vinson, supra; White, supra; Ferrell, supra. Accordingly, we affirm the circuit court’s judgment as to case number CC-95-831 and case number CC-96-339; reverse the circuit court’s judgment as to case number CC-94-429; and remand this case as to case number CC-94-429 for the circuit court to consider the appellant’s motion pursuant to this court’s holding in Holt.”

Contrary to the circuit court’s findings, § 15-22-54.1, Ala.Code 1975, specifically gives courts jurisdiction to resentence eligible persons who have had their probation revoked based upon technical violations. Therefore, the circuit court erroneously found that it did not have jurisdiction to modify McQuieter’s sentence solely because he had been revoked and his sentence was now a “straight sentence.” Also, the record does not indicate that the circuit court determined whether McQuieter satisfied the eligibility requirements set forth in § 15-22-54(b), Ala.Code 1975. Accordingly, we remand this case for the circuit court to consider McQuieter’s petition pursuant to § 15-22-54.1, Ala.Code 1975. See Thompson v. State, 967 So.2d 729, 730-32 (Ala.Crim.App.2007).

REVERSED AND REMANDED.

WELCH, KELLUM, and MAIN, JJ„ concur. WINDOM, J., concurs in the result.

On Return to Remand

BURKE, Judge.

Feion Judio McQuieter argued that the circuit court improperly revoked his probation from his guilty-plea conviction for murder. He had been sentenced to a 20-year split sentence and had been ordered to serve 4 years of incarceration followed by 5 years of probation. McQuieter had filed a petition requesting that the circuit court resentence him under § 15-22-54.1. The circuit court denied McQuieter’s petition and held that it lacked jurisdiction to modify McQuieter’s sentence because the revocation resulted in a straight sentence. On December 17, 2010, this Court determined that circuit courts have jurisdiction to resentence eligible offenders whose probation had been revoked based on technical violations that resulted in straight sentences. This Court further found that, because the circuit court summarily denied McQuieter’s petition based solely on its lack of jurisdiction, and because “the record does not indicate that the circuit court determined whether McQuieter satisfied the eligibility requirements,” this cause was due to be remanded. McQuieter v. State, 88 So.3d 925, 929 (Ala.Crim.App.2010).

On January 6, 2011, the circuit court filed its record and supplemental record on return to remand, which contained its order finding that McQuieter was not an eligible offender because he had pleaded guilty to felony murder on May 2, 2003, specifically to having, during the course of a kidnapping or flight therefrom, caused the death of the victim by shooting him. Therefore, McQuieter was not convicted of a nonviolent offense and was not eligible for sentence modification pursuant to § 15-22-54.1, Ala.Code 1975. The circuit court again ordered that McQuieter’s petition be denied.

The circuit court properly denied McQuieter’s petition because the court lacked jurisdiction to resentence him as McQuieter did not qualify as an eligible offender under § 15-22-54.1(a), which requires:

“(a) Any person convicted of a nonviolent offense now serving a prison sentence based on revocation of probation shall be entitled to be resentenced upon petition to the sentencing court.”

Because murder is a violent offense under § 12-25-32, Ala.Code 1975, McQuieter was not convicted of a nonviolent offense. Therefore, because McQuieter was a violent offender, the circuit court lacked jurisdiction to resentence him and its decision is due to be affirmed.

AFFIRMED.

WELCH, P.J., and WINDOM, KELLUM, and JOINER, JJ., concur.

      . Effective June 14, 2011, this subsection was amended to read: "(a) Any person now serving a prison sentence based on revocation of probation who would have been an eligible offender as defined in Section 15-22-54 at the time of revocation shall be entitled to be re-sentenced upon petition to the sentencing court.”


author: WELCH, Presiding Judge.

text:
    Gary Wayne PRESLEY v. CITY OF ATTALLA.
    CR-10-0935.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.

      Jason P. McCartha, Ryland, for appellant.
    Richard A. Rhea, Gadsden, for appellee.
   WELCH, Presiding Judge.

Gary Wayne Presley was convicted following a jury trial in the Etowah Circuit Court of four charges: CC-2010-1159, giving a false name or address to a law-enforcement officer, a violation of § 13A-9-18.1, Ala.Code 1975; CC-2010-1160, driving without a driver’s license, a violation of § 32-6-19, Ala.Code 1975; CC-10-1161, driving a motor vehicle without a tag, a violation of § 32-6-51, Ala.Code 1975; and CC-10-1162, driving a motor vehicle without liability-insurance coverage, a violation of § 32-7A-4, Ala.Code 1975. The circuit court sentenced Presley as follows: CC-10-1159 — 12 months in the Etowah County jail and a $250 fine; CC-10-1160— 180 days in the Etowah County jail and a $500 fine; CC-10-1161 — a $500 fine and courts costs; and CC-10-1162 — a $500 fine and court costs. The trial court ordered that the sentences were to run concurrently. A few weeks later the trial court entered an order giving Presley credit for time served and ordering that the remainder of his sentences run concurrently with a sentence that had been imposed in a case in South Carolina. This appeal follows.

Presley does not challenge the sufficiency of the evidence, so our recitation of the facts here will be brief. Presley was stopped while driving in the City of Attal-la, Alabama. His vehicle had a homemade license tag instead of a State-issued tag. Presley could not produce a driver’s license or proof of insurance. Presley provided the law-enforcement officer with only his first name and his middle name but not his surname and, when asked for his date of birth, gave the officer only the date he says he was “reborn” as a Christian, not the actual date of his birth. A check of State records revealed that Presley did not have a valid driver’s license.

The only argument Presley raises on appeal is that he was denied his Sixth Amendment right to counsel. The City of Attalla (“the City”) argues that “Presley has not sought, and for all that appears he does not want, the assistance of any lawyer.” (City’s brief, at p. 9.)

Presley represented himself at trial. The record does not reflect that the circuit court made an inquiry into, or a determination of, Presley’s indigent status. Nor is there any indication that the circuit court advised Presley of the dangers and disadvantages of self-representation. However, after the circuit court adjudged Presley guilty and imposed sentence, the court informed Presley as follows: “[Y]ou have the right to appeal these matters. It’s limited to 42 days from today’s date. If you could not afford an attorney or a transcript of these proceedings, those would be provided by the Court.” (R. 197.) The circuit court informed Presley again on the record the following day that an attorney would be appointed to represent him on appeal if he was indigent and if he chose to have an attorney’s assistance. (R. 199.) The record further reflects that Presley sought and received leave to proceed in forma pauperis on appeal (C. 175) and that he is currently represented by appointed counsel.

Presley was clearly entitled to representation by counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case, explaining:

“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S. [458,] 464-465 [(1938)]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 [ (1948) ] (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U.S. [269,] 279 [(1942) ].”

422 U.S. at 835.

The United States Supreme Court also clearly stated that the trial court must determine whether a defendant desires to represent himself at a criminal proceeding:

“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.”

Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The Court in Johnson also stated: “It has been pointed out that courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights.” 304 U.S. at 464 (footnotes and internal quotation marks omitted).

The Alabama Supreme Court has summarized the factors that must be established on the record in order to find a knowing and intelligent waiver of the right to counsel:

“We must determine whether the defendant effectively waived his right to counsel in this case. A defendant may not be imprisoned for any offense, whether a petty, misdemeanor, or felony offense, unless the defendant either had counsel or made a knowing, intelligent, and voluntary waiver of his right to counsel. Argersinger [v. Hamlin ], 407 U.S. [25] at 37 [(1972)]. ‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.’ Carnley v. Cochran, 369 U.S. 506, 516 (1962). See Lake v. City of Birmingham, 390 So.2d 36 (Ala.Crim.App.1980). To establish a knowing and intelligent waiver of counsel, ‘the record at the outset of the trial should establish three factors: 1) that the defendant was informed that he had the right to counsel, 2) that the defendant was informed that if he could not afford counsel the state would appoint counsel to represent him, and 3) an affirmative showing by the defendant that, understanding these rights, he still elects to proceed without counsel.’ Jenkins v. State, 482 So.2d 1315, 1317 (Ala.Crim.App.1985).
“The record fails to establish that [the defendant] ‘was offered counsel’ as required by Carnley, supra. Likewise the record fails to establish any of the three factors required by Jenkins, supra. The trial judge’s admonitions to [the defendant] to the effect that he needed a lawyer are a far cry from explanations of the right to counsel or offers of appointed counsel if [the defendant] could not afford to retain counsel. Therefore, we cannot say that [the defendant] intelligently and understandingly waived his right to counsel.”

Ex parte Shelton, 851 So.2d 96, 101-102 (Ala.2000).

Although the trial court need not engage in a formal colloquy with the defendant, there must be direct evidence in the record to establish that the defendant knowingly and voluntarily waived his or her right to counsel. “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).

In Rule 6.1(b), Ala. R.Crim. P., an additional protection has been afforded a criminal defendant who chooses self-representation. Rule 6.1(b), Ala. R.Crim. P., provides, in pertinent part:

“(b) Waiver of right to counsel. A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right. At the time of accepting a defendant’s waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings.”

Even if a defendant requests to represent himself or herself and the trial court permits the defendant to do so, the trial court’s failure to comply with Rule 6.1(b), Ala. R.Crim. P., is grounds for reversal. See Farid v. State, 720 So.2d 998, 999 (Ala.Crim.App.1998) (“However, the record does not show that the trial court advised the appellant that she had the right to withdraw any waiver of the right to counsel that she might make. As we stated in Hairgrove v. State, 680 So.2d 946, 947 (Ala.Crim.App.1995), the language of Rule 6.1(b), Ala. R.Crim. P., ‘is clear and mandatory.’ Therefore, we must reverse on this issue.”).

Finally, in determining whether a defendant knowingly and voluntarily waived his or her right to counsel, reviewing courts must consider the totality of the circumstances. Tomlin v. State, 601 So.2d 124 (Ala.1991).

Reviewing the record in light of the foregoing principles, we find that the circuit court did not engage in a traditional Faretta colloquy with Presley. In fact, the record contains no inquiry by the circuit court into Presley’s self-representation or his right to counsel. Nor does the record disclose that the circuit court informed Presley that, if he desired to appear pro se, he could withdraw his waiver of counsel at any time during the proceedings and counsel would be appointed to represent him. Rather, at the beginning of the trial proceedings the circuit court’s only inquiry was related to jury selection:

“THE COURT: Mr. Presley, have you ever participated in the selection of a jury before?
“THE DEFENDANT: Absolutely.
“THE COURT: So you are well versed in that area, and you won’t need any instructions or assistance from the Court?
“THE DEFENDANT: No, sir.
“THE COURT: All right. Then we will begin the process in the morning as far as the selection of the jury on the charges that are before the Court.”

(R. 9.)

The circuit court’s inquiry does not, of course, constitute any portion of the necessary explanation regarding the right to appointed counsel.

The City does not contend that the circuit court engaged in a Faretta colloquy. Rather, the City lists the various pleadings Presley filed before, during, and after the trial, and suggests that Presley’s intent to waive his right to counsel was assumed or obvious. The City contends:

“This is a Defendant who has represented himself before many courts and simply chooses to do so.
“Presley’s conduct reveals a voluntary decision to choose the path of self representation. In cases such as this the trial court may, in its discretion, conclude that the Defendant has voluntarily waived his right to counsel. United States v. Garey, 540 F.3d 1253 (C.A.11).
“It is apparent that Presley’s decisions in this case are made knowingly and voluntarily.”

(City’s brief, at pp. 20-21.)

The City further argues:

“The record and the totality of the circumstances surrounding Presley’s waiver of counsel clearly indicate that he chose to represent himself knowingly, intelligently and voluntarily. Presley filed his pretrial motions, struck a jury, cross-examined witnesses, called witnesses and conducted direct examination and did a fíne job with his opening and closing statements.”

(City’s brief, at p. 21.)

Taking judicial notice of our own records, see Hamm v. State, 439 So.2d 829 (Ala.Crim.App.1983), we are aware that Presley waived his right to counsel and represented himself in a prior criminal case, and he represented himself in the appeal of the conviction in that case. Presley v. State, (No. CR-08-1832, Feb. 26, 2010) 75 So.3d 1230 (Ala.Crim.App.2010) (table). Although Presley’s prior experience with the legal system is a factor to be considered in determining whether there was a valid waiver of counsel in this case, Presley’s decision in a prior case to forgo legal representation, without more, is not sufficient evidence of his waiver of his right to counsel in the case now under review.

The only information in the record now before us is that Presley represented himself at trial, and that, when the circuit court offered him the assistance of appointed counsel for purposes of appeal, he accepted the offer and is currently represented by counsel. Although the City argues that Presley’s decision to represent himself must have been made knowingly and voluntarily, the record does not support that argument. That Presley represented himself in other cases or that he has demonstrated some level of skill at self-representation in this case cannot substitute for the necessary demonstration on the record that the circuit court advised Presley in accordance with established requirements, nor does it demonstrate that Presley knowingly and voluntarily waived his right to counsel in this case. That Presley is now represented by counsel on appeal completely undercuts the City’s argument that Presley constantly chooses to represent himself in legal proceedings. This record contains none of the fundamental elements that would support a finding of a knowing and intelligent waiver of the right to counsel.

In Cobble v. State, 710 So.2d 539 (Ala.Crim.App.1998), this Court reversed the appellant’s conviction upon determining that the appellant had been denied his constitutional right to counsel. A portion of the rationale expressed in our opinion in that case is relevant here. We stated:

“ ‘ “A valid waiver of counsel need not be express. However, courts are hesitant to validate an implied waiver. Nevertheless, a court may infer a knowing and intelligent waiver if the defendant fails to retain counsel after repeated urging by the court or discharges counsel in midtrial after explicit warnings.” ’ Wheeler v. State, 553 So.2d 652, 653 (Ala.Crim.App.1989), quoting Project: Criminal Procedure, 76 Geo. L.J. 921, 928-30 (1988) (emphasis omitted). Here, however, not only was there no express waiver of the right to counsel by the appellant, but there was no implied waiver of that right. The record does not establish that the appellant was repeatedly urged by the trial court to obtain other counsel; nor does the record indicate that the appellant discharged his counsel in the middle of the proceedings after explicit warnings from the trial court.”

Cobble v. State, 710 So.2d at 541. We reach the same conclusions based on a review of the record in Presley’s case.

We are aware that the circuit court admonished Presley that his arguments about the legal principles would be made to the court but not to the jury. (R. 10-11.) However, nothing in the circuit court’s statements to Presley substituted for the admonitions the circuit court was required to make regarding the dangers and disadvantages of self-representation, or Presley’s right to appointed counsel, or a withdrawal of any waiver he might have made. In similar circumstances, in Thomas v. State, 8 So.3d 1018 (Ala.Crim.App.2008), we stated:

“An argument might be made that the trial court’s admonitions to Thomas that he abide by the trial court’s rulings on objections and that he conduct himself in a professional manner or he would face possible expulsion from the courtroom were attempts to apprise Thomas of the dangers and disadvantages of self-representation. However, in viewing the totality of the circumstances concerning the trial court’s determination that Thomas would represent himself, we find that the trial court’s statement to Thomas was more in the nature of how the trial court expected him to comport himself rather than an effort to apprise him of the dangers and disadvantages of self-representation.”

Thomas v. State, 8 So.Bd at 1023.

Because the record in this case does not indicate that the trial court ever offered Presley appointed counsel in this case, never advised Presley of the dangers and disadvantages of self-representation, and did not advise him that he had the right to withdraw any waiver of counsel during the proceedings, we must reverse the trial court’s judgment and remand this case for a new trial.

REVERSED AND REMANDED.

WINDOM, KELLUM, BURKE, and JOINER, JJ., concur.

      . Presley originally was charged with violations of the municipal code of the City of Attalla, and he was tried in municipal court. Following his convictions in municipal court, he appealed to the circuit court for a trial de novo.


author: CASANUEVA, Judge.

text:
    SINGH BAIL BONDS and Sun Surety Insurance Co., Appellants, v. Dwight BROCK, as Clerk of Court, Collier County, Appellee.
    No. 2D10-675.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 2011.
    Greg Chonillo of Greg Chonillo, P.A., Miami, for Appellants.
    Anthony P. Pires, Jr., of Woodward, Pires & Lombardo, P.A., Naples, for Ap-pellee.
   CASANUEVA, Judge.

Appellant Singh Bail Bonds, a bail bonding company or bail bondsman (“Singh”) and as the qualified agent for the surety, coappellant Sun Surety Insurance Co. (“Sun”), posted a substantial amount in appearance bonds for a defendant who failed to appear. As a result, the trial court ordered the bonds estreated or forfeited and the appellee, Dwight Brock, in his capacity as Clerk of the Court, entered an amended bond forfeiture judgment for $350,000 that Singh and Sun appeal. Singh and Sun also argue that the trial court erred in denying their motion to set aside the forfeiture. For the reasons set forth below, we deny Singh and Sun’s request for relief and affirm the amended bond forfeiture judgment. After an unnecessarily extended period, the payment has finally come due and must now be made.

BACKGROUND

This forfeiture case arose as a proceeding ancillary to State v. Oscar Zabala, a criminal prosecution in which the State charged Mr. Zabala, an Argentinean citizen, with fourteen criminal offenses. The court ordered that if Mr. Zabala wished to be released during the pendency of the prosecution, he must, post appearance bonds of $50,000 per count and surrender his passport to the clerk of court or to the sheriff. Singh, holding the required power of attorney from Sun, posted $350,000 worth of bonds, but Mr. Zabala never surrendered his passport. After Mr. Za-bala’s motion to suppress was denied, he did not present himself -for the next court hearing and has not been seen or heard from since. Based on Mr. Zabala’s failure to appear as required, the trial court declared the bonds forfeited. Clerk Brock timely gave to Singh and Sun the statutorily required notice of bond forfeiture on October 29, 2009. See § 903.26(2)(a), Fla. Stat. (2009). Singh and Sun then timely filed a motion to set aside the forfeiture. See § 903.27(5) (allowing the surety or the bail bond agent thirty-five days to seek relief from the forfeiture). Section 903.26(2)(a) also requires that the forfeiture be paid within sixty days from the date the notice was mailed. Clerk Brock did not receive the $350,000 from either Singh or Sun within the sixty days, so he entered a bond forfeiture judgment against them, erroneously listing all fourteen bonds instead of the seven assured by Sun and an amount due of $750,000.

After the hearing was held on Singh and Sun’s motion to set aside the forfeiture, but before the trial court rendered its decision on the motion, Clerk Brock filed the amended bond forfeiture judgment which corrected the errors in the Clerk’s initial bond forfeiture judgment. When Singh and Sun were informed of the trial court’s decision to deny their motion to set aside the forfeiture, they timely filed a notice of appeal from Clerk Brock’s amended bond forfeiture judgment.

JURISDICTION

Based on the following language of section 903.27(1), the amended bond forfeiture judgment, entered under Clerk Brock’s authority as Clerk of the Court, is a final appealable order:

If the forfeiture is not paid or discharged by order of a court of competent jurisdiction within 60 days ..., the clerk of the circuit court for the county where the order was made shall enter a judgment against the surety for the amount of the penalty and issue execution.

(Emphasis added.) Cf Al Estes Bonding Co. v. Pinellas Cnty. Bd. of Cnty. Comm’rs, 845 So.2d 254, 256 (Fla. 2d DCA 2003) (holding that review of the trial court’s denial of the bail bondsman’s motion to set aside the forfeiture would be by certiorari and would allow the matter to be adjudicated before entry of judgment against the surety).

ANALYSIS

Section 903.27 sets forth a precondition to seeking to discharge or to set aside a bond forfeiture:

(5) After notice of judgment against the surety given by the clerk of the circuit court, the surety or bail bond agent may within 35 days file a motion to set aside the judgment or to stay the judgment. It shall be a condition of any such motion and of any order to stay the judgment that the surety pay the amount of the judgment to the clerk, which amount shall be held in escrow until such time as the court has disposed of the motion to set aside the judgment. The filing of such a motion, when accompanied by the required escrow deposit, shall act as an automatic stay of further proceedings, including execution, until the motion has been heard and a decision rendered by the court.

(Emphasis added.)

When Singh and Sun received Clerk Brock’s notice that the bonds had been forfeited upon Mr. Zabala’s failure to appear, they timely exercised their rights under this statute to seek relief by filing a motion to set aside the forfeiture. This worked as a stay upon further proceedings until the court disposed of their motion if their motion was accompanied by the “required escrow deposit” as this subsection indicates, in this case $350,000. Unfortunately, neither Singh nor Sun have ever fulfilled this precondition because neither paid the $350,000 due to Clerk Brock to be held in escrow pending disposition of their motion to set aside the bond forfeiture. Of equal importance in obtaining relief from a bond forfeiture is the requirement that there be no breach of the bond. And “failure to pay the forfeiture constitutes a breach of the bond.” Hillsborough Cnty. v. Roche Sur. & Cas. Co., 805 So.2d 937, 939 (Fla. 2d DCA 2001) (citing Cnty. of Volusia v. Audet, 682 So.2d 687 (Fla. 5th DCA 1996)). Without paying the $350,000 neither Singh nor Sun had the right to pursue relief.

Because Singh and Sun moved to set aside the forfeiture, thus staying further proceedings until their motion was resolved, it is problematic whether Clerk Brock should have entered the amended bond judgment. However, because the amendment only clarified which of Singh and Sun’s bonds were at issue and how much was truly owed, it is understandable why Clerk Brock entered the amended order. The same bonds at issue had already been declared forfeited and the amended judgment did nothing more except correct scrivener’s errors. Moreover, because the $350,000 had not been paid to be held in escrow by Clerk Brock, the trial court — rather than further delaying finality by setting a hearing — could have dismissed the motion to set aside the forfeiture until the amount of the forfeited bonds had been timely paid. But the irregularity of these proceedings subsequent to the motion to set aside the forfeiture have been rendered moot because the trial court heard the motion on its merits and, upon substantial, competent evidence, denied the motion to set aside the forfeiture. Therefore, the end result is the same: no grounds existed to merit setting aside the forfeiture and the amended bond forfeiture judgment resumed its full force and effect.

CONCLUSION

We affirm the amended bond forfeiture judgment. This long overdue bill has come due.

WALLACE and CRENSHAW, JJ., Concur.

      . Uniform Case No. 112007CF002787AXXXXX.

      . Singh, on behalf of Sun, originally posted bonds on all fourteen counts but those bonds were later discharged and Singh, again on behalf of Sun, posted bonds covering only seven of the fourteen counts at $50,000 per count, i.e., $350,000 worth of bonds. Singh, on behalf of a different surety, posted a similar amount for the remaining seven counts and are parties to a separate, related, and pending appeal.

      . Although the court required Mr. Zabala to surrender his passport to the trial court, the clerk of court, or the sheriff, it is not necessary for this court to determine whether the failure to actually receive from Mr. Zabala his passport should be ascribed — as Singh and Sun argue — to the trial court, the clerk of court, or the sheriff who released Mr. Zabala from jail. It was Singh’s obligation under section 903.045, Florida Statutes (2009), to ensure that Mr. Zabala was present for all court appearances. And concomitant with this obligation is the responsibility to take all necessary measures to prevent any potential nonappearance.

      . Singh did discover that Mr. Zabala was at his son’s home in Argentina but was unable to convince either the authorities in Argentina to arrest him or in this country to extradite him. These circumstances do not constitute a successful defense to the forfeiture of the bonds as Singh and Sun argue. See, e.g., Al Estes Bonding Co. v. Pinellas Cnty. Bd. of Cnty. Comm'rs, 845 So.2d 254, 257 (Fla. 2d DCA 2003) (determining that the federal government’s denial of the bail bondsman’s request to release the defendant, whom it was holding in custody in Vermont, to him or to the State of Florida was not a basis to remit the bond forfeiture).

      . Early in the proceedings, Mr. Zabala had successfully moved to have his bond amount reduced from $750,000 to $700,000, which may explain the origin of the former figure in this initial bond forfeiture judgment.

      . The amended bond judgment correctly named only the seven bonds posted by Singh and Sun and the correct amount due as $350,000. Unfortunately, and apparently in order to keep his records straight, Clerk Brock also filed a satisfaction of the previous and erroneously calculated bond judgment and an amended notice of forfeiture. These documents furnish the basis for Singh and Sun to argue here that the clock started ticking anew on their statutory rights. We reject this argument because the amended bond forfeiture judgment merely corrected calculation errors and deleted the seven bonds that had been assured by the other surety.

      . "While case law does not require the traditional language 'for which let execution issue,' see Friedman v. Friedman, 825 So.2d 1010 (Fla. 4th DCA 2002), as a practical matter, including the same will eliminate any issue in ... regard [to applying] for a writ of execution....” Willis v. Red Reef, Inc., 921 So.2d 681, 684-85 (Fla. 4th DCA 2006). By the means of section 903.27(1), the legislature has endowed the clerks of court with the authority to enter final, executable judgments in bond forfeiture cases.

      . Although we have not discussed in this opinion all the grounds upon which Singh and Sun have argued for reversal, we have found no merit in any of them.

      . This case has had a long and difficult course. We note that Singh and Sun should have paid the forfeited amount within thirty days of October 29, 2009, the date Clerk Brock notified them of the forfeiture, because they wished to — and did — file the motion to set aside the forfeiture. By failing to pay the forfeiture as a precondition to seeking further relief from the trial court, Singh and Sun thus deprived Clerk Brock of the benefit of that amount per the statutory scheme as he was entitled. This deprivation was further compounded during appellate proceedings because of Singh and Sun’s counsel’s failure to follow appellate rules correctly and by being dilatory in filing the initial brief. Their counsel also filed an initial brief electronically but a different brief in hard copy (paper original) and neglected to serve Clerk Brock with either until ordered to do so by this court.


author: PER CURIAM.

text:
    Jean E. REEVES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1654.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Rehearing Denied June 5, 2012.
    Jean E. Reeves, Ocala, pro se.
    No appearance required for appellee.
   PER CURIAM.

Jean E. Reeves (Defendant) appeals an order summarily denying her rule 3.800(a) motion to correct illegal sentence. We affirm.

First, a challenge to the voluntariness of the plea is not cognizable in a rule 3.800(a) motion. Second, a habitual felony offender sentence may be imposed, consecutive to a guidelines sentence, without violating Hale. Gipson v. State, 616 So.2d 992 (Fla.1993) (approving Second District’s decision affirming imposition of two concurrent guidelines sentences, to be served consecutively to defendant’s several HFO sentences); Thomas v. State, 831 So.2d 762 (Fla. 4th DCA 2002) (noting that consecutive sentencing on two counts was not improper where defendant was sentenced as habitual offender on only one of them); Lafleur v. State, 661 So.2d 346, 349 (Fla. 3d DCA 1995) (vacating habitual sentences for life felonies, which did not then qualify for habitual sentencing, and directing trial court on remand to impose guidelines sentences for them, which properly could be imposed consecutively to the remaining two concurrent habitual sentences).

As Defendant repeatedly has raised these same or similar grounds, all which have been denied, and the denials affirmed on appeal, we warn her that filing frivolous actions or appeals may result in sanctions, State v. Spencer, 751 So.2d 47 (Fla.1999), and/or referral to prison officials for consideration of disciplinary procedures which may include loss of gain time. § 944.279(1), Fla. Stat. (2011); § 944.28(2)(a), Fla. Stat. (2011).

Affirmed; Appellant cautioned against frivolous filing.

MAY, C.J., TAYLOR and LEVINE, JJ., concur.

      . Hale v. State, 630 So.2d 521 (Fla.1993) (holding habitual offender statute did not authorize imposition of consecutive habitual felony offender sentences for multiple crimes committed during single criminal episode), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994).


text:
    Anthony Jason LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1013.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 2011.
    Rehearing Denied April 10, 2012.

      James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Anthony Jason Lopez appeals his convictions and sentences for three counts of attempted second-degree murder and one count of aggravated assault with a firearm. We affirm the conviction for aggravated assault with a firearm without further comment. However, for the reasons expressed in Houston v. State, 87 So.3d 1 (Fla. 2d DCA 2011), we reverse the three convictions for attempted second-degree murder and remand for a new trial. See also Banek v. State, 75 So.3d 762 (Fla. 2d DCA 2011); Brooks v. State, 75 So.3d 756 (Fla. 2d DCA 2011); Gonzalez v. State, 40 So.3d 60 (Fla. 2d DCA 2010). As we did in Houston and Brooks, we certify conflict with the Fourth District’s opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010).

Affirmed in part, reversed in part, and remanded.

CASANUEVA, WALLACE, and KHOUZAM, JJ., Concur.


author: CASANUEVA, Judge. MORRIS, Judge,

text:
    Rita PENA and Reinaldo Pena, Appellants/Cross-Appellees, v. CITIZENS PROPERTY INSURANCE CO., a Florida governmental entity, Appellee/Cross-Appellant. Rita Pena and Reinaldo Pena, Appellants, v. Citizens Property Insurance Co., a Florida governmental entity, Appellee.
    Nos. 2D10-2397, 2D11-1091.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.
    Rehearing Denied June 6, 2012.

      Shea T. Moxon of Swope, Rodante P.A., Tampa, for Appellants.
    Andrew P. Rock and David R. Terry, Jr., of The Rock Law Group, P.A., Mait-land, for Appellee.
   CASANUEVA, Judge.

In appeal number 2D10-2397, Rita Pena and Reinaldo Pena, wife and husband, appeal the trial court’s dismissal with prejudice of their first-party insurance action against Citizens Property Insurance Company. The trial court’s order of dismissal with prejudice rested upon its conclusion that the Penas had perpetrated a fraud upon the court warranting that ultimate sanction. We affirm the trial court’s finding that the Penas perpetrated a fraud upon the court but reverse the dismissal because it was with prejudice. In doing so, we do not condone the conduct of the Penas.

In the consolidated appeal, number 2D11-1091, pursuant to Florida Rule of Appellate Procedure 9.130(a)(4) (a nonfinal order entered after final order on an authorized motion), the Penas claim that the successor judge erred in denying their motion for reconsideration of the predecessor judge’s rulings. We find no merit in their argument and affirm the successor judge’s nonfinal order without further discussion.

Background

The Penas’ home suffered considerable damage from a sinkhole while it was covered by a homeowner’s insurance policy issued by Citizens. The Penas sought coverage from Citizens under the policy to repair the damage. Citizens agreed that the policy provided coverage and that it was ultimately responsible for payment of the necessary remedial work. It advanced some money for repairs but not the full amount the Penas sought. When Citizens provided no further funds, the Penas instituted the underlying first-party insurance suit.

Throughout the pretrial period, including its two unsuccessful motions for summary judgment, Citizens contended that the Penas were not entitled to additional funds for repairs under the policy language until they entered into a contract for building stabilization and repair with a contractor. Citizens argued that dismissal was warranted because the Penas did not complete this condition precedent before filing suit. During the discovery period it became clear that the Penas had not yet hired a contractor. So Citizens filed a motion seeking dismissal with prejudice because the evidence given by the Penas earlier, through affidavits and depositions relative to the existence of the necessary contract, was false. The trial court concluded that the affidavits in opposition to the summary judgment requests were false and that the Penas, through their conduct, had hampered the presentation of Citizens’ procedural defense. The trial court granted Citizens’ motion and dismissed the Penas’ suit with prejudice.

Analysis

Initially, without need for further discussion, we conclude that there was substantial, competent evidence of a clear and convincing force to support the trial court’s finding of fraud upon the court. But we disagree with the trial court that the ultimate sanction of dismissal with prejudice is warranted in this instance.

“A dismissal for fraud on the court is reviewed under a narrowed abuse of discretion standard.” Gilbert v. Eckerd Corp. of Fla., Inc., 34 So.3d 773, 775 (Fla. 4th DCA 2010). “A more stringent abuse of discretion standard is appropriate because dismissal is an extreme remedy.” Jacob v. Henderson, 840 So.2d 1167, 1169 (Fla. 2d DCA 2003). “Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances.” Id. (quoting Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998)). This is so especially when a case is dismissed with prejudice. Before entering a dismissal with prejudice, a trial court is required to consider a mix of factors in order to properly balance two important public policies of this state: our much preferred policy of adjudicating disputed civil cases on the merits and the policy of maintaining the integrity of this state’s judicial system. See Gilbert, 34 So.3d at 776.

Citizens’ defense was that the Penas’ civil suit did not comply with the condition precedent set forth in the policy of insurance, i.e., that prior to instituting a civil action against Citizens under the policy, the Penas were required to hire a contractor to undertake the remediation work. Citizens established only this procedural defense and was entitled to a dismissal on procedural grounds. Citizens did not establish that there was either no breach or no damages. Precluding a substantive issue of full payment for damages on the basis of a procedural irregularity in this instance was excessive. It would have been appropriate for the trial court to either abate the cause until the condition precedent was fulfilled or dismiss the Pe-nas’ suit with leave to amend. Here, at most, the Penas’ conduct caused Citizens to expend time and money as well as suffer a delay in the disposition of the cause. But the trial court’s dismissal with prejudice precluded forever what appears to be a viable cause of action based upon a good faith dispute between the parties that is not related to the merits of the case.

Unlike most of the reported appellate decisions, the fraud here did not impact Citizens’ defense to a damages claim. These cases repeatedly discuss efforts to conceal medical injuries or conditions which impact on the issue of damages, particularly pain and suffering claims and those involving a loss of bodily function. Here, in comparison, Citizens conceded that the Penas suffered a covered injury and that it was required to pay substantial damages. Only the amount for full remediation of the property was contested.

Conclusion

We conclude that the Penas’ conduct warrants a sanction; it is the Penas’ behavior that placed at risk the dispute between them and their insurance carrier over the quantum of funds contractually required to effectuate repairs to their property. The penalty for their fraudulent conduct, in this instance, is monetary.

In the context of this proceeding, the civil dispute warranting adjudication on the merits consists of the Penas’ claims for contractual damages and Citizens’ procedural defense that the Penas’ suit was instituted prematurely, before a contractual condition precedent had been met. Determining the action was indeed premature, the trial court did not err in dismissing the Penas’ claim. To that extent, the trial court’s order of dismissal maintained the court’s integrity and, as well, disposed of a disputed civil matter on its merits. However, the dismissal with prejudice, in this case’s posture, was an abuse of discretion and furthered neither important public policy. Upon remand the trial court shall consider evidence on the amount of fees and costs necessarily expended by Citizens from the filing of the premature complaint through the dismissal for its efforts in establishing the Penas’ fraud and shall enter a judgment for the lodestar amount.

Further, we do not think that, as .a creditor, Citizens should be forced to chase the Penas for reimbursement of the amounts determined by the trial court to be due. Therefore, on remand, the trial court may reinstate the suit and abate it until such time as all conditions precedent are satisfied. This will allow the Penas further time to pursue their cause on the merits and thus comply with the state’s policy of determining issues on the merits. Alternatively, the trial court may dismiss the suit with leave to amend the complaint. If the trial court chooses the former method, Citizens shall be entitled to deduct the amount of the sanction award from any final judgment for damages in favor of the Penas. If the latter method is chosen, Citizens shall be entitled to an immediate judgment for attorney’s fees and costs. Further, the trial court is not precluded from fashioning a different method to effectuate Citizens’ sanction award reimbursement.

In appeal number 2D10-2397, we reverse the final order of dismissal with prejudice and remand for further proceedings in accordance with this opinion. We affirm the nonfinal order in appeal number 2D11-1091.

MORRIS, J., Concurs specially.

WHATLEY, J., Concurs and joins in special concurrence.

MORRIS, Judge,

Specially concurring.

I concur with the majority in this case only because I am compelled to do so by our holding in Jacob v. Henderson, 840 So.2d 1167 (Fla. 2d DCA 2008).

The trial court’s conclusion that the Pe-nas’ affidavits in opposition to Citizens’ motion for summary judgment were false is supported by substantial, competent evidence. However, based on our decision in Jacob, the ultimate sanction of dismissal with prejudice was not an option under the facts of this case. Given the growing concern over the increasing frequency of this type of behavior, there may soon come a time when the legislature feels- compelled to sanction the imposition of the “death penalty” — dismissal with prejudice — for any acts of fraud on the court, regardless of their caliber. But that day has not yet come.

In Jacob, 840 So.2d at 1168, the plaintiff in a personal injury case, Mrs. Jacob, lied in a deposition about the extent of her injuries. Unfortunately for her, she had been secretly videotaped doing the very things she testified under oath that her injuries would no longer allow her to do. In reversing the trial court’s dismissal of her case with prejudice for fraud on the court, we acknowledged that her case was not one in which she suffered no injuries. Id. at 1169. Instead, the question was the severity of her injuries. Therefore, we reasoned, the totality of her fraudulent testimony in her deposition and the evidence of her injuries admitted at trial should be weighed and resolved by a jury. Id. at 1170.

Although the Penas lied under oath about whether they had entered into a contract with a contractor to repair their sinkhole damage, as required by their insurance policy, it is undisputed that their home suffered sinkhole damage and that there was coverage for this damage in their policy with Citizens. As in Jacob, this is not a case in which the Penas suffered no injury. Rather, the issues are the severity of the damage, the cost to remediate it, and the assurance that the insurance proceeds would in fact be used to make the repairs. Just as in Jacob, the Penas’ fraudulent misrepresentation may be considered by the factfinder when determining their credibility as it relates to the ultimate issues in the case, if and when the case proceeds to that stage. This, coupled with the sanctions outlined by the majority, is the remedy called for under the current law in this district.

As we acknowledged in Jacob, “ ‘[b]e-cause dismissal sounds the “death knell of the lawsuit,” courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.’ ” 840 So.2d at 1169 (quoting Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998)).


text:
    Joshua HOLT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1843.
    District Court of Appeal of Florida, First District.
    April 26, 2012.
    Rehearing Denied June 6, 2012.
    Joshua Holt, 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.

DAVIS, WETHERELL, and ROWE, JJ., concur.


text:
    Marcus Darnell EBRON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6520.
    District Court of Appeal of Florida, First District.
    April 26, 2012.

      Marcus Darnell Ebron, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition or mandamus is denied on the merits.

DAVIS, WETHERELL, and ROWE, JJ., concur.


author: ORFINGER, C.J.

text:
    John David FALWELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2011.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.
    Rehearing Denied May 31, 2012.

      James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, C.J.

John Falwell appeals his conviction of aggravated battery. Falwell argues that the trial court erred in denying his motion for statutory immunity from prosecution under sections 776.032, 776.012 and 776.013, Florida Statutes (2010), the justifiable use of force and “stand your ground” statutes, and that the self-defense jury instruction was fundamentally erroneous. Although we affirm, the jury instruction issue merits discussion.

Without an objection from Falwell, the trial court instructed the jury:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which John David Falwell is charged if the injury to Matthew Adam Alcott resulted from the justifiable use of deadly force.
Definition.
“Deadly force” means force likely to cause death or great bodily harm.
The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself while resisting:
1. another’s attempt to murder him, or
2. any attempt to commit aggravated battery upon him, or
3. any attempt to commit aggravated battery upon or in any dwelling, residence, or vehicle occupied by him.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent
1. imminent death or great bodily harm to himself or another, or
2. the imminent commission of aggravated battery against himself or another.
AGGRAVATED BATTERY
To prove the crime of Aggravated Battery, the Defendant must prove the following two elements beyond a reasonable doubt ....

(Emphasis added).

Falwell contends that he is entitled to a new trial because the trial court’s jury instruction on justifiable use of deadly force, his sole defense, improperly shifted the burden to him to prove beyond a reasonable doubt that the alleged victim had attempted to commit an aggravated battery. Jury instructions are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. Westerheide v. State, 831 So.2d 93, 107 n. 19 (Fla.2002); see Walls v. State, 641 So.2d 381, 387 (Fla.1994); State v. Delva, 575 So.2d 643, 644 (Fla.1991).

When self-defense is asserted, the defendant has the burden of producing enough evidence to establish a prima facie case demonstrating the justifiable use of force. Montijo v. State, 61 So.3d 424, 427 (Fla. 5th DCA 2011); Fields v. State, 988 So.2d 1185, 1188 (Fla. 5th DCA 2008); see Murray v. State, 937 So.2d 277, 282 (Fla. 4th DCA 2006) (holding that law does not require defendant to prove self-defense to any standard measuring assurance of truth, exigency, near certainty, or even mere probability; defendant’s only burden is to offer facts from which his resort to force could have been reasonable). Once the defendant makes a prima facie showing of self-defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. Fields, 988 So.2d at 1188. The burden of proving guilt beyond a reasonable doubt, including the burden of proving that the defendant did not act in self-defense, never shifts from the State to the defendant. Montijo, 61 So.3d at 427; Fields, 988 So.2d at 1188; see Mosansky v. State, 33 So.3d 756 (Fla. 1st DCA 2010) (explaining that defendant has burden to present sufficient evidence that he acted in self-defense in order to be entitled to jury instruction on issue, but presentation of such evidence does not change elements of offense at issue; rather, it merely requires state to present evidence that establishes beyond reasonable doubt that defendant did not act in self-defense); Murray, 937 So.2d at 279 (explaining that defendant in trial for aggravated battery was not required to prove self-defense claim beyond reasonable doubt or by preponderance of evidence; rather, self-defense evidence needed merely leave jury with reasonable doubt about whether he was justified in using deadly force).

Generally, it is fundamental error for the trial court to instruct the jury that the defendant has the burden to prove the basis for self-defense beyond a reasonable doubt, because it raises the possibility that the jury may apply the wrong burden of proof in convicting the defendant. Montijo, 61 So.3d at 427; Fields, 988 So.2d 1185; Novak v. State, 974 So.2d 520, 521 (Fla. 4th DCA 2008); Murray, 937 So.2d at 282. However, fundamental error can be waived when defense counsel requests an erroneous instruction, see Armstrong v. State, 579 So.2d 734, 735 (Fla. 1991), or affirmatively agrees to an improper instruction, see State v. Lucas, 645 So.2d 425, 427 (Fla.1994). See also Tindall v. State, 997 So.2d 1260, 1261 (Fla. 5th DCA 2009); Jimenez v. State, 994 So.2d 1141, 1142-13 (Fla. 3d DCA 2008); York v. State, 932 So.2d 413, 416 n. 2 (Fla. 2d DCA 2006).

Here, Falwell affirmatively agreed to the flawed jury instruction. When the instructions were read to the jury, Falwell’s counsel agreed with the State that the defense bore the burden of proof on this issue, affirmatively correcting the trial court’s original charge, which told the jury that the State bore the burden of proof on this issue:

THE COURT: ... A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or the imminent commission of aggravated battery against himself or another.
To prove the crime of aggravated battery, the State must prove the following elements beyond a reasonable doubt....
[THE STATE]: Your Honor, I’m sorry to object, but I was talking to the defense. There is a burden-shifting that’s not appropriate under aggravated battery here.
It shouldn’t be the State must prove because that’s something the defense must prove under this part of the instruction.
The defense would have to prove aggravated battery, I think—
[DEFENSE COUNSEL]: That’s correct.
[THE STATE]: — for self-defense.
THE COURT: Do you want me to ask the jury to be taken out at this point?
[THE STATE]: Well, no. I think that’s the — that’s the crime the defense is arguing he might have been trying to defend himself against, but it’s the defendant — I guess the burden is on the defendant, I believe, to prove that, not the State to prove what Matthew was doing.
THE COURT: The burden is on the defendant to prove self-defense.
[THE STATE]: Right. So there is a typo under that, which says the State must prove.
It should be the defendant must prove or the defense must prove that.
THE COURT: Okay. So I will strike through the word State, and I will write in the word defendant.

(Emphasis added). We view defense counsel’s statement to the court as an affirmative agreement to the jury instruction. As result, the matter cannot be raised on direct appeal. See Caldwell v. State, 920 So.2d 727, 732 (Fla. 5th DCA 2006) (“An instructional mistake does not rise to the level of fundamental error when defense counsel affirmatively requests the deletion or alteration of the jury instruction that subsequently forms the basis of the requested relief in the appellate court.”).

The fundamental error doctrine applies “only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Martinez v. State, 981 So.2d 449, 455 (Fla.2008) (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)) (emphasis omitted). “Where the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ” Id. (quoting Smith, 521 So.2d at 108). Whether the challenged jury instruction prejudiced Falwell must await resolution in a timely post-conviction proceeding.

AFFIRMED.

SAWAYA and EVANDER, JJ., concur.


author: EVANDER, J.

text:
    Janet ROBINSON, Appellant, v. Frank J. ROBINSON, III, Appellee.
    No. 5D10-2645.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.
    Rehearing Denied May 31, 2012.
    Dorothy F. Easley, of Easley Appellate Practice, PLLC, Miami, for Appellant. Janet Robinson, Maitland, pro se.
    John A. Baldwin, of Baldwin & Morrison, P.A., Fern Park, for Appellee.
   EVANDER, J.

Janet Robinson appeals from a Second Final Judgment of Dissolution of Marriage. We address two issues. First, as conceded by the former husband, a mathematical error resulted in the former husband receiving $67,840 more net assets than the former wife. On remand, the trial court shall correct this discrepancy.

Second, as again conceded by the former husband, he violated this court’s stay order. The stay order violations consisted of: (1) the former husband’s sale of certain real property to his sister, and (2) the former husband’s receipt of proceeds derived from the sale of real property by Prestige Construction and Development, LLC (an entity in which both parties had a legal interest). Although the former husband remedied much of the damages that might have otherwise resulted from his violations of the stay order, we conclude that the former wife is entitled to recover her reasonable attorney’s fees for the time expended, both at the trial and appellate court levels, in litigating the issues related to the former husband’s violations. On remand, the trial court shall determine such amount.

We affirm as to the other issues raised on appeal.

AFFIRMED, in part; REVERSED, in part; REMANDED.

MONACO and LAWSON, JJ., concur.

      . The former husband’s counsel strongly disagreed with this court’s entry of the stay order. Although it was not improper for counsel to express his disagreement with our decision, his disparaging comments regarding this court, made at a subsequent hearing below, fell far below the standards of professionalism expected of members of The Florida Bar. See, e.g., Preamble, Rules of Professional Conduct, R. Regulating Fla. Bar Ch. 4 ("A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials.”); Oath of Admission, In re The Fla. Bar, 73 So.3d 149 (Fla.2011) ("I will maintain the respect due to courts of justice and judicial officers.”).


text:
    CITY OF COCOA BEACH, FLORIDA, Petitioner, v. Bruce FOUNTAIN and Jennifer Fountain, Respondents.
    No. 5D11-4433.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.
    Rehearing Denied May 29, 2012.

      James A. “Skip” Fowler and Mary L. Sneed of Fowler, O’Quinn, Feeney & Sneed, P.A., Orlando, for Petitioner.
    Jason Gordon of Gordon & Cornell, Cocoa Beach, for Respondents.
   PER CURIAM.

Petitioner seeks review of an order that reversed the decision of its Code Enforcement Board (“the Board”). The Board determined that Respondents violated two distinct city ordinances by parking a large sailboat on property zoned for residential use. In reversing the decision of the Board, the lower court addressed one of the potential violations but failed to address the Board’s conclusion that Respondents also violated section 4-76 of the ordinance. That section prohibits, among other things, the parking of boats in excess of twenty-six feet in a residential zone unless certain exceptions apply. The exceptions require, inter alia, that the boat “be operable,” as well as “in regular use, and have a current license and current registration.” Cocoa Beach, Fla., Code § 4-76A.3.Í. (2010). The instant boat meets none of these criteria.

Respondents postulate that the lower court must have determined that the object in question is not a “boat,” because it is under construction and not yet completed. To reach such a conclusion, however, the lower court would have departed from its permissible standard of review by invading the fact-finding province of the Board and applied an incorrect legal standard in its construction of the ordinance. Accordingly, we quash the decision under review.

PETITION GRANTED; ORDER QUASHED.

SAWAYA, TORPY and COHEN, JJ„ concur.

      . Cocoa Beach, Fla., Code § 15-23.1 (2010).


author: MORRIS, Judge.

text:
    In the Interest of C.K., a child. C.K., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D12-633.
    District Court of Appeal of Florida, Second District.
    May 4, 2012.
    Rehearing Denied May 29, 2012.

      Wesley Pardue of Wesley Pardue, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessica Stephans, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
   MORRIS, Judge.

C.K., the father, seeks a writ of certiora-ri directed at the dependency drug court’s order prohibiting him from having contact with the mother, V.M., until further order of the court. We treat the petition as an appeal from a nonfinal order granting an injunction. See Fla. R.App. P. 9.130(a)(3)(B); Bistricer v. Oceanside Acquisitions, LLC, 937 So.2d 786 (Fla. 2d DCA 2006). The Department of Children and Family Services (DCF) concedes error because C.K. received no notice of the hearing at which the order was issued and therefore no opportunity to be heard. We reverse and remand.

I. Background

In this dependency action, C.K. was originally ordered to comply with his case plan tasks, which included, among other things, that C.K. participate in the dependency drug court program. After C.K.’s first-appearance hearing before the dependency drug court was continued but prior to the continued date, the drug court held an interim hearing for which C.K. received no notice. As a result, neither C.K. nor his counsel was present at the hearing. During that hearing, the drug court issued the no-contact order. C.K. was unaware of the order until he arrived at the continued first-appearance hearing at which point he was served with the order. C.K’s counsel inquired about the order, and the drug court indicated that it issued the order because C.K. had refused to sign a medical release form and that the drug court was prevented from “finding] out what his status was” so that C.K. could be treated. This prevented the drug court from “monitoring] the situation.” C.K’s counsel later inquired about the basis for the no-contact provision, but no one present, including the drug court judge, responded to the question. Instead, the hearing was concluded.

II. Analysis

We review whether a party was denied the opportunity to be heard for abuse of discretion. See Douglas v. Johnson, 65 So.3d 605, 607 (Fla. 2d DCA 2011).

Section 39.502(1) and (4)-(9), Florida Statutes (2011), requires that parties in dependency proceedings receive notice. Similarly, Florida Rule of Juvenile Procedure 8.255(h), applicable to dependency proceedings, provides that “[w]hen these rules do not require a specific notice, all parties will be given reasonable notice of any hearing.” Thus, both the statute and rule require notice to all parties in dependency proceedings.

“The right to reasonable notice also implicates constitutional due process concerns.” Borden v. Guardianship of Borden-Moore, 818 So.2d 604, 607 (Fla. 5th DCA 2002). Procedural due process is required in order ‘“to ensure fair treatment,’ ” and it is comprised of “both fair notice and a real opportunity to be heard.” Id. (quoting Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001) (internal quotation marks omitted)). “ ‘The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance ... [while] the opportunity to be heard must be at a meaningful time and in a meaningful manner.’” Id. (quoting Keys Citizens, 795 So.2d at 948) (internal quotation marks omitted).

In the context of injunction proceedings, this court and others have found that where a party was not provided with reasonable notice or a meaningful opportunity to be heard, a procedural due process violation occurred. See L.C. v. A.M.C., 67 So.3d 1181, 1182-83 (Fla. 2d DCA 2011); Douglas, 65 So.3d at 607; Smith v. Smith, 964 So.2d 217, 219. (Fla. 2d DCA 2007); Dep’t of Children & Families v. D.B.D., 42 So.3d 916, 920-21 (Fla. 4th DCA 2010); see also Brooks v. Barrett, 694 So.2d 38, 38 (Fla. 1st DCA 1997) (holding — without discussing procedural due process implications — that trial court could not sua sponte amend an injunction where there had been no notice or hearing).

Here, C.K. was provided with no notice, nor was he provided with an opportunity to be heard. Consequently, his procedural due process rights were violated as were the notice provisions of section 39.502(1) and (4)-(9) and rule 8.255(h), and the trial court abused its discretion in entering the no-contact order. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

DAVIS and KHOUZAM, JJ., Concur.

      . It is not clear from the record whether V.M. or DCF requested the no-contact order or whether the trial court issued the order sua sponte. However, this issue is not pertinent to the disposition in this case.