author: DAMOORGIAN, J.

text:
    Ervin L. EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1961.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Ervin Evans appeals his judgment and sentence for attempted second degree murder. Evans argues that the prosecutor’s comments during closing implying tampering with a witness and the suborning of perjury by the defense, without any evidence whatsoever of any improper contact with the witness, warrants a new trial. We agree and reverse and remand for a new trial.

Evans was charged with stabbing Kenneth Rawls during a fight that involved Rawls, Evans and Evans’ brother Steve. At trial Rawls and his wife provided the following version of the events leading up to the attack. On the night before the stabbing, Evans and Rawls had a dispute. Early in the day, Evans had tried to forcefully enter Rawls’ apartment, mistakenly believing that Rawls was inside. Evans then made a series of phone calls and text messages to Rawls, making abusive statements about Rawls’ wife and threatening her. Rawls had returned to his apartment by the time he received the messages threatening his wife. He went outside to confront Evans, who at that time was in the common area of the apartment complex where both men lived. Rawls had no weapon. Evans was accompanied by Steve, and a verbal argument ensued. Rawls’ wife ultimately persuaded Rawls to return into their apartment, at which point Steve attempted to strike Rawls. A fight broke out. While Steve and Rawls fought, Evans pulled a knife and stabbed Rawls in the back. Rawls fell to the ground, and Steve repeatedly kicked him while Evans stabbed him a total of five times.

According to testimony provided by Evans, Steve and Steve’s wife, it was Rawls who had been behaving aggressively toward Evans. Rawls was angry because he believed Evans had informed Rawls’ wife that Rawls had been involved romantically with another woman. Rawls confronted Evans on multiple occasions the day of the stabbing, even throwing a brick at him. Evans refused to fight. During the evening, Steve was on his way to visit Evans at his apartment when he was confronted by Rawls. Evans, who had been inside his apartment using scissors to cut marijuana, emerged to see what the commotion was. Rawls threatened to kill both men. Evans observed Rawls grabbing at his hip, or an object under his shirt, and believed Rawls had a gun. Rawls began the fight by striking Steve. Believing that Rawls had a gun and intended to kill Evans, Evans stabbed Rawls with the scissors. Steve and his wife corroborated Evans’ testimony that Rawls had initiated the fight.

Evans first argues that during closing argument the prosecutor improperly suggested that the defense engaged in witness tampering and suborning of perjury by making the following comment regarding Chante Evans:

What weight does Chante have? I proffer to you zero. Zero. This is the sister of the defendant who hey sister-in-law, take the stand testify on my behalf. Go ahead say that. Hook me up. Help me out. I proffer to you that’s what that was. A woman who had no opportunity to see anything other than what benefits him.

The State went on to say that Evans and Steve had had “three weeks to think of something” and that they “concocted” the story.

Evans acknowledges that this argument was not preserved for review and, therefore, reversal is proper only if the prosecutor’s statements constituted fundamental error. Agatheas v. State, 28 So.3d 204, 208 n. 1 (Fla. 4th DCA 2010). Fundamental error in closing argument is “error that ‘reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’” Kilgore v. State, 688 So.2d 895, 898 (Fla. 1996) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)).

“A suggestion that the defendant suborned perjury or that a defense witness manufactured evidence, without a foundation in the record, is completely improper.” Cooper v. State, 712 So.2d 1216, 1217 (Fla. 3d DCA 1998). In Henry v. State, 651 So.2d 1267, 1268 (Fla. 4th DCA 1995), we reversed the defendant’s conviction because the prosecutor argued during closing that “somebody ‘got to’ one of the defense alibi witnesses, without any evidence whatsoever of any improper contact with the witness.” Writing for the majority, Judge Warner noted that “[t]he fact that a witness is impeached may imply that the witness is lying, but it does not imply that someone else has made the witness change her story.” Id. at 1268. The implication of such comments is that the defendant has engaged in witness tampering or suborning perjury. Id. See also Berkowitz v. State, 744 So.2d 1043, 1045 (Fla. 4th DCA 1999) (reversing where the prosecutor told the jury that it was a “reasonable interpretation” of the facts to believe the defendant and the witness “got together and they contrived and concocted their story.”); Chavers v. State, 964 So.2d 790, 792 (Fla. 4th DCA 2007) (reversing conviction where prosecutor told the jury that the defendant’s and the witness’ testimony was similar because “[defendant] asked his friend to come in here and tell you that nothing happened and this was completely fabricated.”) Such comments, without any predicate, are highly irregular, impermissible, and prejudicial. Henry, 651 So.2d at 1268.

The State suggests the comments at issue “permissibly questioned the credibility of [defendant’s] witnesses” and “were logical inferences from the evidence as well as the manner in which it was presented.” We disagree. It is one thing to question the credibility of a witness who tells different versions of the same story, and quite another to suggest that the defendant was engaged in witness tampering or suborning perjury.

We next turn to whether the prosecutor’s comments constitute fundamental error. This case was highly contested, the evidence consisting, in large part, of conflicting testimony between eye-witnesses on both sides. Moreover, while it was undisputed that Rawls was stabbed, Evans and his witnesses maintained that he was acting in self-defense. Against this backdrop, the combination of the prosecutor’s improper comments and argument, the defendant’s assertion that he was acting in self-defense, and the highly contested nature of the case convinces us that on balance Evans did not receive a fair and impartial trial, and that fundamental error occurred. Jones v. State, 449 So.2d 313, 315 (Fla. 5th DCA 1984), rev. denied, 456 So.2d 1182 (Fla.1984).

Finally, Evans argues that the trial court fundamentally erred when it instructed the jury on the justifiable use of deadly force using the former version of standard jury instruction 3.6(g). In support of his argument, Evans relies upon our opinion in Novak v. State, 974 So.2d 520 (Fla. 4th DCA 2008). Because we have concluded that Evans is entitled to a new trial, he will have the benefit of the amended version of instruction 3.6(g). In re Standard Jury Instructions in Criminal Cases-Report No. 2009-01, 27 So.3d 640 (Fla.2010) which addressed the issue raised in Novak and in the present case.

Reversed and Remanded for a new trial.

MAY and LEVINE, JJ., concur.

      . Chante Evans is Steve's wife.

      . We have announced that “[w]e strongly disapprove of the prosecutor’s making cont-ments which impugn the defense without any basis.” Henry, 651 So.2d at 1268-69.


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    Mario BABROW, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1072.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.

      Mario Babrow, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Defendant, Mario Babrow, appeals his convictions and sentences for burglary with assault or battery, assault, and battery. Babrow raises three issues on appeal: (1) the state’s closing argument constituted fundamental error; (2) Babrow was improperly sentenced as a prison re-leasee reoffender; and (3) Babrow’s convictions for assault and battery violated his constitutional double jeopardy protection. While we find the first two issues lack merit, we reverse Babrow’s convictions for assault and battery.

“Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo.” Finkley v. State, 16 So.3d 329, 329 (Fla. 4th DCA 2009) (quoting Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008) (citation omitted)). “The Double Jeopardy Clause in both the state and federal constitutions protects criminal defendants from multiple convictions and punishments for the same offense.” McKinney v. State, 51 So.3d 645, 647 (Fla. 1st DCA 2011) (quoting Gordon v. State, 780 So.2d 17, 19 (Fla.2001)).

In the instant case, the state concedes that Babrow’s convictions for assault and battery should be vacated because they violate double jeopardy. Following a jury trial, Babrow was found guilty of burglary with assault or battery, assault, and battery. All three counts involved the same victim and incident and the verdict form did not indicate whether the jury determined Babrow had committed “burglary with an assault,” or “burglary with a battery.” Consequently, Babrow’s convictions violated the constitutional prohibition against double jeopardy. See, e.g., Torna v. State, 742 So.2d 366, 367 (Fla. 3d DCA 1999) (holding that convictions for both burglary with an assault and/or battery, and simple battery, arising from the same criminal episode, violated the constitutional prohibition against double jeopardy, absent specification that former conviction was for burglary with an assault, rather than burglary with a battery).

Accordingly, we reverse and remand for the trial court to vacate Babrow’s convictions for assault and battery because they violate double jeopardy. We affirm Ba-brow’s conviction for burglary with assault or battery, and remand for resentencing on this conviction.

Affirmed in Part; Reversed in Part and Remanded.

GROSS, C.J., and CIKLIN, J., concur.


author: PER CURIAM.

text:
    Mary TUCKER, Petitioner, v. CHARLES D. FRANKEN, P.A., Respondent.
    No. 4D11-1052.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Mary Tucker, Lauderhill, pro se.
    Nina E. Franken of Charles D. Frank-en, P.A., Plantation, for respondent.
   PER CURIAM.

Petitioner, Mary Tucker, timely petitions this court for a second-tier writ of certiorari, following the dismissal of her appeal by the circuit court, sitting in its appellate capacity, for failure to timely file an initial brief within fifteen days of filing her notice of appeal. See Fla. R.App. P. 9.130 (“Appellant’s initial brief ... shall be served within 15 days of filing the notice”). As the petitioner was not given proper notice of the court’s intent to dismiss, as required under Florida Rule of Appellate Procedure 9.140, we grant the petition, in part. We deny the petition as to the remaining claim without discussion.

Following the county court’s denial of petitioner’s motion to set aside default judgment, she timely filed a notice of appeal in the circuit court. When approximately one month passed and petitioner did not file an initial brief, the respondent moved to dismiss the appeal for not following the appellate rules. One week later, petitioner filed a motion for an extension of time. A hearing was held on the motion to dismiss and, that same day, the court entered an order dismissing the appeal. Petitioner, however, was not given notice by the court at any point in time that her appeal was in jeopardy of being dismissed for lack of filing an initial brief.

In Boulder Management, Inc. v. Charts Healing Ministries, 931 So.2d 1058, 1059 (Fla. 4th DCA 2006), we granted certiorari when the circuit court, sitting in its appellate capacity, dismissed an appeal based upon Boulder’s failure to timely file an initial brief. Although Boulder moved for an extension of time to file the initial brief two weeks after the brief was due, we explained that, “the filing of briefs is not jurisdictional and the appellate rules allow for extensions of time for most steps in the appellate process, including the filing of briefs. Dismissal is a sanction which the appellate court should not have imposed without first giving Boulder ten days to file its initial brief, along with fair warning in advance that a failure to file the brief by the deadline may subject its appeal to dismissal.” Id. (emphasis added). We held that the circuit court departed from the essential requirements of law and similarly find the same here.

Concerning sanctions, Florida courts generally require that a sanction be commensurate with the violation, and deem a dismissal an extreme sanction justified only for the most flagrant violations. See Mercer v. Raine, 443 So.2d 944 (Fla.1983). The failure timely to file a brief has not been deemed serious enough to warrant the sanction of dismissal. See e.g., United Auto. Ins. Co. v. County Line Chiropractic Ctr., 8 So.3d 1258 (Fla. 4th DCA 2009) [citations omitted].

Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So.3d 395, 397 (Fla. 3d DCA 2009).

Accordingly, we grant the petition to the extent that we quash the order dismissing Tucker’s notice of appeal and remand for the circuit court to reinstate the appeal. See Mirage Pools, Inc. v. Dewitt, 757 So.2d 1280 (Fla. 4th DCA 2000).

Petition for writ of certiorari granted in part; denied in part.

GROSS, C.J., HAZOURI and GERBER, JJ., concur.


text:
    Michael DeMATTEO, Appellant, v. Meghan SHEA, Appellee.
    No. 4D10-869.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Andrew S. Berman and Jennifer Sniffen of Young, Berman, Karpf & Gonzalez, P.A., Miami, for appellant.
    Troy W. Klein, West Palm Beach, for appellee.
   PER CURIAM.

Michael DeMatteo and Meghan Shea entered into a stipulation in which Shea would dismiss her petition for dating violence injunction in exchange for his agreement to leave Lynn University and Palm Beach County immediately and not return until Shea graduated or permanently left the university. The petition for injunction was dismissed with a voluntary dismissal, with the agreement attached to it by the trial court. Approximately six months after this agreement was reached and the petition for injunction was dismissed, however, DeMatteo petitioned the trial court for clarification and/or modification of this agreement in which he sought approval to return to the university. The trial court, before ruling on the merits of DeMatteo’s motions, sua sponte vacated the dismissal of the petition for injunction and instead replaced it with an order incorporating all of the terms of the same agreement between DeMatteo and Shea — in effect a permanent injunction. First, we find that the trial court had continuing jurisdiction to enforce or modify the agreement between the parties. See MCR Funding v. CMG Funding Corp., 771 So.2d 32 (Fla. 4th DCA 2000). However, we also find that the trial court did not have the authority to convert a dismissal of an injunction into what amounted to a permanent injunction under the auspices of correcting a scrivener’s error pursuant to Florida Rule of Civil Procedure 1.540(a).

Accordingly, the trial court’s nunc pro tunc “Order Correcting Scriveners [sic] Error and Acceptance of Stipulation” is hereby vacated. Because the order we are vacating also vacated the prior order of dismissal, the original order of dismissal with the attached agreement between the parties is reinstated. The trial court has continuing jurisdiction over this matter, and both parties are free to bring an action to enforce or modify the parties’ agreement. Should Shea desire to obtain a permanent injunction against DeMatteo, however, she will have to follow the required procedure, which includes an evi-dentiary hearing.

Reversed and remanded.

GROSS, C.J., HAZOURI and CIKLIN JJ., concur.


text:
    INTERNATIONAL SPORTS CARS AUTO REPAIR DIVISION, INC., Appellant, v. SAINT-GOBAIN ABRASIVES, INC., a foreign corporation, Appellee.
    No. 4D10-2065.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Timothy M. Hartley of Hartley Law Offices, PLC, Fort Lauderdale, for appellant.
    Tracy T. Segal and James M. McCann of Akerman Senterfitt, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Jarmco, Inc. v. Polygard, Inc., 668 So.2d 300 (Fla. 4th DCA 1996).

WARNER, POLEN and LEVINE, JJ., concur.


author: SHEPHERD, J.

text:
    Oza B. JENKINS, Appellant, v. MOTOROLA, INC., et al., Appellees.
    No. 3D10-3271.
    District Court of Appeal of Florida, Third District.
    June 8, 2011.
    Oza B. Jenkins, in proper person.
    Shook, Hardy & Bacon, and John M. Barkett and Daniel B. Rogers, Miami, for appellees.
    Before SHEPHERD, SUAREZ, and CORTIÑAS, JJ.
   SHEPHERD, J.

In Jenkins v. Motorola, Inc., — So.3d -, 2011 WL 1485967 (Fla. 3d DCA 2011), this court ordered Oza B. Jenkins to show cause why she should not be precluded from filing further pro se appeals in this court, arising out of lower tribunal number 04-1420. Ms. Jenkins timely filed her response, and Motorola, Inc. its reply.

Upon consideration of Ms. Jenkins’ response, the reply of Motorola, Inc., and this court’s independent review of the many filings made by Ms. Jenkins in this court, Ms. Jenkins hereby is barred from filing further pro se proceedings in this court arising out of lower tribunal number 04-1420. See Sibley v. Sibley, 885 So.2d 980, 985 (Fla. 3d DCA 2004). We direct the clerk of this court to reject any further filings on Ms. Jenkins’ behalf, arising out of lower tribunal number 04-1420, unless signed by a member of the Florida Bar.

So ordered.


text:
    FIRST UNION MORTGAGE FUNDING, INC., Appellant, v. Tomas DIAZ, et al., Appellees.
    No. 3D10-1459.
    District Court of Appeal of Florida, Third District.
    June 8, 2011.
    Cove & Associates and Hector E. Lora, Hollywood, for appellant.
    Billbrough & Marks and G. Bart Billb-rough, for appellees.
    Before RAMIREZ, C.J., and SHEPHERD and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Bothmann v. Harrington, 458 So.2d 1163 (Fla. 3d DCA 1984).


text:
    Frank BELLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2629.
    District Court of Appeal of Florida, Third District.
    June 8, 2011.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Richardson v. State, 246 So.2d 771 (Fla.1971); see also State v. Evans, 770 So.2d 1174 (Fla.2000); Curry v. State, 1 So.3d 394 (Fla. 1st DCA 2009).


text:
    Nilson RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1192.
    District Court of Appeal of Florida, Third District.
    June 8, 2011.
    Mavel Ruiz, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTIÑAS and SALTER, JJ.
   PER CURIAM.

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


author: PALMER, J.

text:
    Diane Katz SANTARELLI, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2607.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.

      Gerald S. Bettman, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Diane Katz Santarelli (defendant) appeals her judgments and sentences which were entered by the trial court on the misdemeanor counts of allowing an open house party and contributing to the delinquency of a minor. The defendant contends that the trial court erred by denying her pretrial motion to dismiss two felony counts of manslaughter, claiming the indictment related thereto was legally defective. She maintains further that, had the court properly dismissed the two felony manslaughter counts, the circuit court would not have possessed jurisdiction over the two remaining misdemeanor counts and, therefore, the judgments and sentences entered on the misdemeanor counts are void. We disagree and affirm.

The State alleged that the defendant hosted an open house party at which minors consumed alcohol and other illegal substances. It was further alleged that at some point during the open house party Jesse Calvin Pitts, a minor, drove from the defendant’s residence in a motor vehicle with Taylor Rea Brennan (also a minor) as his passenger. Pitts subsequently crashed the motor vehicle, which resulted in both his and Brennan’s deaths.

The defendant was initially charged by indictment with two counts of felony manslaughter, four counts of allowing an open house party, and one count of contributing to the delinquency of several minors. The two manslaughter counts alleged that the defendant, through her violation of section 856.015 of the Florida Statutes (2008) (Florida’s open house party statute) and her culpably negligent and intentional acts, caused the deaths of Pitts and Brennan. The culpably negligent and intentional acts alleged in the indictment included allowing/providing/encouraging the consumption of alcohol and/or controlled substances and allowing or failing to prevent Pitts from operating a motor vehicle that resulted in both victims’ deaths.

The defendant filed a pretrial motion to dismiss the manslaughter counts maintaining that her alleged violation of section 856.015 could not amount to culpable negligence. The defendant also argued that Pitts’ decision to operate a motor vehicle while intoxicated, and Brennan’s decision to be a passenger in the motor vehicle driven by Pitts, were superseding events eliminating the necessary causation elements for the manslaughter charges. The trial court denied the motion.

The defendant proceeded to trial on an amended information which charged her with one misdemeanor count of allowing an open house party, two felony counts of manslaughter, and one misdemeanor count of contributing to the delinquency of a minor. She was found not guilty on both counts of manslaughter, but guilty on the two misdemeanor counts.

The only issue on appeal is whether the trial court erred by denying the defendant’s motion to dismiss the manslaughter counts. A motion to dismiss should only be granted when the most favorable construction of the charging document to the State would not establish a 'prima facie case of guilt. State v. Lebron, 954 So.2d 52, 54 (Fla. 5th DCA 2007). Whether the trial court erred by denying the defendant’s motion to dismiss is a question of law and, therefore, is subject to de novo review. See State v. Williams, 918 So.2d 400, 401 (Fla. 2d DCA 2006) (citing State v. Pasko, 815 So.2d 680 (Fla. 2d DCA), rev. denied, 885 So.2d 268 (Fla.2002)).

The defendant maintains that the only allegations of culpable negligence supporting the manslaughter counts were the allegations that she had violated section 856.015 and that a violation of section 856.015 cannot legally constitute culpable negligence. The defendant contends that a violation of section 856.015 constitutes only simple negligence because, in a civil prosecution under section 856.015, a defendant cannot be sued for punitive damages. See Smith v. State, 65 So.2d 308, 305 (Fla.1953) (stating that “the degree of negligence to sustain imposition of imprisonment should at least be as high as that required for imposition of punitive damages in a civil action.”) (quoting Cannon v. State, 91 Fla. 214, 107 So. 360 (1926)). The defendant also contends that the trial court erred in denying her motion to dismiss because the causation alleged by the State in the charging document was insufficient to support the charge of manslaughter.- Specifically, she argues that the proximate cause of the victims’ death was Pitts’ operation of a motor vehicle and, therefore, the deaths would not have occurred but for Pitts’ decision to drive. The defendant points out that, under the common law, one injured by an intoxicated individual had no cause of action against the provider of the liquor because it was the act of consumption, not the act of providing liquor, which was the proximate cause of the harm suffered by a third party. To support this argument the defendant relies on United Services Automobile Association v. Butler, 359 So.2d 498, 499 (Fla. 4th DCA 1978) (holding that section 562.11 of the Florida Statutes (1973) does not create a cause of action against a social host for injuries sustained by an individual injured due to the host’s providing of alcoholic beverages to a minor). In a related claim, the defendant maintains that the trial court erred in denying her motion to dismiss because a social host does not have a duty to prevent an intoxicated person from operating a motor vehicle and, therefore, the manslaughter counts did not adequately allege conduct of a gross and flagrant character evincing reckless disregard of human life.

We reject all of the defendant’s arguments and hold that the trial court properly denied the defendant’s motion to dismiss. In denying the defendant’s motion to dismiss, the trial court relied on Commonwealth v. McCloskey, 835 A.2d 801 (Pa.Super.Ct.2003), appeal denied, 577 Pa. 713, 847 A.2d 1281 (2004). In McCloskey, the Superior Court of Pennsylvania upheld the defendant’s conviction for involuntary manslaughter of three teens killed in a car accident following a party based upon the defendant’s culpable conduct, which included knowing that the teens were consuming alcohol, interacting with the teens as they drank, and allowing the illegal and unlawful activity of the teens late into the night. The Superior Court specifically held that McCloskey was culpably negligent and that the Commonwealth presented sufficient evidence of causation. We agree with the trial court that McCloskey is legally persuasive because the cases are factually analogous and the manslaughter statutes of Florida and Pennsylvania share similar elements. As the trial court explained:

Similar to the defendant in McCloskey, it is alleged that the Defendant in this case set in motion a chain of events resulting in death to the victims. It is alleged that the Defendant allowed and/or provided and/or encouraged the victims, both under the age of 21, to consume alcoholic beverages and/or controlled substances to the extent their normal faculties were impaired and did not prevent the victim, Jessy Calvin Pitts, from operating a motor vehicle in said impaired state. Such result was foreseeable as a direct result of the Defendant’s alleged conduct, and it would not be unfair or unjust to hold the Defendant criminally responsible for the prohibited result. Such alleged action is sufficient to establish causation.

The defendant’s reliance on United Services Automobile Association v. Butler for her argument that Pitts’ act of drinking alcohol and his subsequent operation of a motor vehicle, as opposed to her providing the alcohol, were the proximate causes of the victims’ deaths is without merit. While it is true that, under the common law, a dispenser of alcohol was not liable to a third party for the injuries inflicted by an intoxicated person, the Florida legislature extended criminal liability to a social host through the enactment of section 856.015 of the Florida Statutes. Newsome v. Haffner, 710 So.2d 184, 185-86 (Fla. 1st DCA 1998) (noting that the statute is clearly designed to protect minors from the harm that could result from the consumption of alcohol or drugs by those who are too immature to appreciate the potential consequences).

The defendant’s argument that she was entitled to a dismissal since section 856.015 cannot support a charge of manslaughter because serving alcohol to a minor is not sufficiently willful or wanton to support an award of punitive damages relies on the case of Jacmar Pacific Pizza Corp. v. Huston, 502 So.2d 91 (Fla. 5th DCA 1987). However, that case predated the passage of section 856.015, which defines the conduct alleged in this case to be criminal conduct. In addition, the instant manslaughter counts were based upon the defendant’s intentional and culpably negligent acts in addition to the defendant’s violation of section 856.015. Therefore, even if section 856.015 could not support the manslaughter charges, the defendant could still be guilty of manslaughter based upon the other negligent and intentional acts alleged.

The trial court did not err by denying the defendant’s pretrial motion to dismiss the two manslaughter counts and, therefore, the defendant’s judgments and sentences on the misdemeanor counts are affirmed.

AFFIRMED.

EYANDER and COHEN, JJ„ concur.

      . See § 856.015, Fla. Stat. (2008).

      . See § 827.04(l)(a), Fla. Stat. (2008).

        .See § 782.07(1), Fla. Stat. (2008).

      . Section 856.015 of the Florida Statutes (2008) provides:
      856.015. Open house parties

      (2) No person having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage or drug is possessed or consumed at said residence by any minor where the person knows that an alcoholic beverage or drug is in the possession of or being consumed by a minor at said residence and where the person fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug.

      . Section 562.11 of the Florida Statutes (1973) provides, in pertinent part:
      562.11. Selling, giving, or serving alcoholic beverages to person under age 21; providing a proper name; misrepresenting or misstating age or age of another to induce licensee to serve alcoholic beverages to person under 21; penalties

      (1) It is unlawful for any person to sell, give, serve, or permit to be served alcoholic beverages to persons under twenty-one years of age or to permit a person under twenty-one years of age to consume said beverages on the licensed premises. Anyone convicted of violation of the provisions hereof shall be guilty of a misdemeanor of the second degree, punishable as provided ins 775.082 ors 775.083.


text:
    Gary Lee MORRIS, Appellant, v. Robin Lynn Tardif MORRIS, Appellee.
    No. 5D10-672.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.
    Theodore R. Doran, of Doran, Sims, Wolfe, Ansay & Kundid, Daytona Beach, for Appellant.
    Horace Smith, Jr., of Horace Smith, Jr., P.A., Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appel-lee.
   PER CURIAM.

The former husband, Gary Lee Morris, timely appeals a final judgment awarding attorney’s fees and costs to the former wife in the amount of $69,069.82. We agree with the former husband that under the facts of this case the trial court should have set the fee and cost award off against the $98,800 that the former wife owed him based upon his overpayment of alimony. See Novack v. Novack, 210 So.2d 215 (Fla. 1968); Selembo v. Selembo, 591 So.2d 1112 (Fla. 2d DCA 1992). In all other respects, we affirm. Accordingly, we remand this matter to the trial court with directions to set off the fee and cost award entered in favor of the former wife against the final judgment entered in favor of the former husband.

AFFIRMED IN PART; REMANDED WITH DIRECTIONS.

TORPY, LAWSON, and COHEN, JJ., concur.


author: JACOBUS, J.

text:
    Juan Idel DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1407.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   JACOBUS, J.

The appellant, Juan Diaz, timely appeals the judgment and sentence entered after a jury found him guilty of robbery -with a deadly weapon. Diaz contends the lower court erred in denying his motion for mistrial made after the prosecutor referred to subject matter that was excluded before trial, and in allowing a detective to testify to hearsay statements. We agree that it was error to admit hearsay testimony from a non-testifying witness and, therefore, reverse and remand for a new trial.

Before trial, the court granted the defense’s motion in limine to exclude testimony regarding an anonymous tip the police received naming Diaz as a suspect in the robbery. During opening statements, the prosecutor described the robbery, and the investigation leading up to Diaz’s arrest. According to the prosecutor, the lead detective was unable to identify the individual who committed the crime, but at some point, he received intelligence that gave him Diaz’s name. After receiving this tip, the detective created a photo lineup which he presented to the victim of the robbery. The victim immediately identified Diaz as the robber and, based on this, the detective located Diaz and arrested him. The defense objected to these statements and moved for a mistrial, arguing the State violated the court’s order in li-mine. The court overruled the objection and denied the motion for mistrial.

During the detective’s trial testimony, the following exchange occurred:

STATE: Were you able to identify who committed the robbery on that day on April 2nd, 2009?
WITNESS: No.
STATE: So what steps did you take in order to try to identify the individual?
WITNESS: I got statements from the witnesses, from the clerk, the victim herself, and this went on — the information that I was given, at a later date I received a tip about who possibly the suspect might be.
STATE: What did you do upon receiving that tip?
WITNESS: I created a — I pulled the person’s driver’s license photo and it resembled very closely to the subject in the video.

Defense counsel objected based on the order in limine, arguing this was inadmissible hearsay. The court overruled the objection.

At trial, Diaz’s defense was misidentifi-cation. Defense counsel focused on the fact that Diaz has a prominent mole on the tip of his nose, and that the victim failed to mention the mole when describing the robber to the police and a sketch artist soon after the crime occurred. Nonetheless, Diaz was convicted of robbery with a deadly weapon and sentenced to twenty years in prison.

Where “the inescapable inference from the testimony is that a non-testifying witness has furnished the police with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated.” Postell v. State, 398 So.2d 851, 854 (Fla. 3d DCA 1981). Here, the jury could easily conclude the investigating detective had no suspects in this case until he received a tip from a person, who did not testify at trial, that identified Diaz as the person who committed the robbery. It could further conclude that, based on this information, the detective created a photo lineup using Diaz’s driver’s license photo and Diaz was subsequently identified by the victim. This type of testimony is hearsay, and should not be admitted at trial. Wilding v. State, 674 So.2d 114, 119 (Fla.1996), receded from on other grounds, Devoney v. State, 717 So.2d 501 (Fla.1998); see Cedillo v. State, 949 So.2d 339 (Fla. 4th DCA 2007) (admitting hearsay statement through officer reversible error where officer’s testimony implied that non-testifying witness made accusatory statement against Cedillo).

The State contends that any error in admitting the hearsay testimony was harmless because there is ample evidence showing Diaz committed the robbery, including an unequivocal identification of Diaz by the victim both before and during trial. Contrary to the State’s assertions, the evidence of Diaz’s guilt was not overwhelming. The victim could not identify Diaz from the surveillance video, and when she described him to the sketch artist, she did not mention the prominent mole on the end of his nose. Therefore, admission of the hearsay testimony regarding the tip cannot be considered harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Jackson v. State, 707 So.2d 412, 415 (Fla. 5th DCA 1998). Accordingly, the judgment and sentence are reversed and the matter is remanded for a new trial.

REVERSED and REMANDED for new trial.

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

      . The State claims the detective’s testimony was presented to explain why Diaz’s photograph was included in the lineup. We reject this argument because a detective's reason for including the defendant's picture in a photographic array is irrelevant at trial and is not an issue to be decided by the jury. See Saintilus v. State, 869 So.2d 1280, 1282 (Fla. 4th DCA 2004).


author: PER CURIAM. TORPY, J.,

text:
    Bryon Keith WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1994.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.

      James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The sole issue presented here is whether Appellant’s vehicle was located within the curtilage of a residence that was the target of a search warrant. The trial court concluded that it was because the vehicle was partially overlapping a portion of the driveway to the residence, and accordingly, denied Appellant’s motion to suppress a firearm and drugs located within the vehicle. We conclude that the vehicle was not within the curtilage of the residence, and accordingly, we reverse.

After conducting a controlled purchase of drugs, the police obtained a search warrant for the single family residence. The warrant authorized the search of any vehicle located within the residence’s “curtilage.” Appellant, who had no connection to the investigation or the residence that was the target of the search, happened to be parked in his car in front of the residence with a female companion at the time the warrant was executed. The residence was located on a city street adjacent to a paved road. It was surrounded by a chain-link fence with an opening for ingress and egress through a dirt driveway. Appellant was parked outside the chain link fence, parallel to the road within the city right-of-way very close to the paved portion of the right-of-way. Part of Appellant’s vehicle was parked over the driveway portion of the right-of-way impeding, but not blocking, ingress and egress to the property through the opening in the fence. Appellant and his companion were in the vehicle at the time of the search.

Appellant’s sole argument is that his vehicle was not within the scope of the warrant because it was not within the cur-tilage of the residence. The trial court concluded that, because part of Appellant’s vehicle extended into the driveway portion of the right-of-way, the vehicle was within the curtilage. We disagree.

The term “curtilage” in the Fourth Amendment context describes the area around a home that is “intimately tied to the home itself.” United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). “[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” Id. at 300, 107 S.Ct. 1134. Clearly, the legal boundaries of a given piece of property do not necessarily define its curtilage for Fourth Amendment purposes. To determine the scope of the curtilage to a particular residence, we must consider the four factors identified in Dunn. Wilson v. State, 952 So.2d 564, 568-69 (Fla. 5th DCA 2007). They are: “[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.” Dunn, 480 U.S. at 301, 107 S.Ct. 1134.

Here, an analysis of the four factors leads to the inescapable conclusion that the area outside the chain link enclosure is outside the curtilage of the residence. Although the proximity factor favors the State’s argument, all of the remaining factors favor Appellant. The fact that the homeowner chose to enclose a portion of the yard with a chain-link fence is perhaps the most compelling fact here. See Dunn, 480 U.S. at 302, 107 S.Ct. 1134 (use of fence to separate area around house from other area is “significant”); see also United States v. Gerard, 362 F.3d 484, 487-88 (8th Cir.2004) (presence of fence between primary residence and another area typically means area is outside curtilage). Similarly, the third and fourth Dunn factors support Appellant’s position. Although a small portion of the area outside the fence was used as a point of ingress and egress, it was outside the fence and within an area designated as a public right-of-way. The homeowner manifested no attempt to protect against observation by people passing by.

Accordingly, we reverse the order denying the dispositive motion to suppress and remand this cause with instructions to grant the motion and vacate the judgment and sentence.

REVERSED AND REMANDED.

LAWSON and COHEN, JJ., concur.

TORPY, J., concurs specially with opinion.

TORPY, J.,

concurring specially.

I agree that the search of Appellant’s vehicle was not authorized by the warrant because it was not located within the “cur-tilage.” See Hartpenee v. State, 509 So.2d 975 (Fla. 5th DCA 1987). Had the warrant authorized searches of vehicles anywhere on the “premises,” the result might have been different-at least as to the issue raised by Appellant. The more interesting question to me is the one that was not raised or argued: whether the police have the authority to search a vehicle, even if located within the curtilage, when there is no reason to suspect a connection to the illegal activity. The decisional law on this issue is less than clear.

In State v. Haugee, 402 So.2d 1216 (Fla. 5th DCA 1981), for example, a divided panel of this Court authorized the search of a vehicle owned by a person who was present at a home when a search warrant was executed, despite the owner’s lack of connection to the suspected illegal activities. We reasoned that a contrary view would enable criminals to hide contraband in an un-owned vehicle and avoid its detection. Id. at 1218; accord State v. Booream, 560 So.2d 1308 (Fla. 2d DCA 1990) (police may search visitor’s car located within curtilage). Other courts have confirmed that no “nexus” is required between a vehicle within the curtilage and the suspected illegal activities, even when it is apparent that the vehicle is not under the control of an occupant of the premises. In Lowe v. State, 751 So.2d 177 (Fla. 2d DCA 2000), for example, the defendant arrived in his vehicle while the search was underway. Despite the lack of nexus between the defendant, the searched premises or the suspected drug dealer, the court upheld the search of his vehicle, although acknowledging that the search of his person would not be authorized (apparently based on Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)).

A seemingly contrary view is expressed in Simmons v. State, 491 So.2d 1307, 1309 (Fla. 1st DCA 1986), where the court held that there must be “some evidentiary connection” between the searched vehicle and the residence that is the object of the search. In that case, the court determined that the connection was established because the owner of the vehicle lived in the residence, although he was not the target of the investigation. Id.; see also State v. Freeman, 673 So.2d 139 (Fla. 5th DCA 1996) (expressing view that no nexus required, albeit under facts similar to Simmons ).

In Miller v. State, 516 So.2d 1118 (Fla. 1st DCA 1987), our sister court, in reliance on Simmons’ “connection” test, concluded that the search of an unattended vehicle parked within the curtilage of the searched premises was not authorized because of the lack of connection to the residence. Apparently, the owner of the residence operated an automobile repair business and the searched vehicle was parked among junk cars and other cars waiting for repairs. The Miller panel certified conflict with Haugee, an ostensible conflict that remains unresolved.

A review of the federal authorities on this point also suggests somewhat divergent views. For example, in United States v. Cole, 628 F.2d 897, 900 (5th Cir.1980), a divided panel of the Fifth Circuit concluded that a warrant authorizing the search of vehicles within the curtilage permitted the search of a vehicle that arrived on the premises just as the warrant execution was commencing. In that case, the vehicle parked in the carport just as police arrived. In distinguishing an earlier precedent from the same court, the dissent observed:

A different result might be in order if [the appellant] and his truck, were not observed arriving by the officers as all parties converged on the scene, and in this respect Napoli neither controls nor was wrongly decided. For purposes of construing the scope of a premises search warrant, it is much more reasonable to regard a car which is discovered for the first time already on the premises to be searched as a part of the premises, subject to search. The allegations in support of the issuance of a warrant might well justify the magistrate reasonably to intend, and the policeman reasonably to understand the magistrate to mean, a description of “premises” to include anything at the described location which is under the control or direction of the person whose effects are to be searched which might serve as a hiding place for the contraband sought. But this reasoning cannot apply to an outsider who shows up during the course of a search.... To say in effect that the warrant’s use of the word “premises” alone suffices as a determination by the magistrate, resting on probable cause, that the warrant extend to any and all visitors found on the premises, is to stretch the word beyond its normal meaning, or, as discussed above, its reasonable interpretation. The use of the word “premises” alone does not, and should not, include visitors or their vehicles caught in the act of visiting.

Id. at 900-01 (Clark, J., dissenting).

In United States v. Tamari, 454 F.3d 1259, 1262 (11th Cir.2006), the Eleventh Circuit relied upon Cole and upheld the search of a vehicle that arrived during the execution of a warrant. The court rejected the contention that the search of a vehicle is unauthorized unless under the “dominion and control of the premises’ owner.” Id. It also rejected the contention that the rule should be different when the vehicle arrives during the execution of the warrant. Although the police had independent evidence that the vehicle was involved in the criminal conspiracy under investigation, this fact did not appear to have relevance to the court’s decision, since it relied upon Cole and other precedents holding that a nexus is not needed. See United States, v. Martinez-Cortes, 566 F.3d 767, 769 (8th Cir.2009) (warrant authorized search of car seen leaving curti-lage at moment of warrant’s execution); United States v. Thompson, 91 F.3d 145 (6th Cir.1996) (search of vehicle on premises authorized where owner present at time of warrant’s execution and keys in vehicle; reasonable to conclude vehicle within scope of warrant due to presence on premises).

One federal circuit court has adopted a test that appears to have some traction. In United States v. Gottschalk, 915 F.2d 1459, 1461 (10th Cir.1990), neither the appellant nor his vehicle were suspected of involvement in the criminal activity, but the vehicle had been on the premises, in an apparent inoperable state, for several weeks prior to the execution of the warrant. Just prior to the execution of the warrant, the object of the investigation and the appellant were seen moving items between the vehicle and the house. During the search of the house, an illegal pipe bomb was discovered in a briefcase that contained papers with the appellant’s name on them. The court rejected the argument that the search warrant should be limited to vehicles on the premises owned or controlled by the premises owner. The court adopted the following test:

We believe the better rule in these circumstances is to define the scope of the warrant to include those automobiles either actually owned or under the control and dominion of the premises owner or, alternatively, those vehicles which appear, based on objectively reasonable indicia present at the time of the search; to be so controlled. Thus where the officers act reasonably in assuming that the automobile is under the control of the premises owner, it is included in the warrant.

Id.

Neither the Florida Supreme Court nor the United States Supreme Court has apparently weighed in on this subject as of yet, so we are left without definitive guidance and somewhat conflicting precedents. Even against this uncertain backdrop, however, there does seem to be some consensus among the courts in a variety of scenarios. First, when the vehicle is located within the curtilage at the time the warrant is executed, and is owned or controlled by someone who lives on the premises, it may be searched, even if the owner is not connected to the investigation. Second, when the vehicle is connected with the criminal activity or the premises, based upon information known prior to the execution of the warrant or discovered during its execution, it may be searched. Third, when a non-resident guest is present in the residence when the search is commenced and the keys to the vehicle are on his person or on the premises, even under circumstances where the search of his person is not authorized, the search of the vehicle would be permitted on the theory that contraband might be hidden there. Fourth, where an unattended vehicle is observed within the curtilage, and police are unaware of when it was first parked there, even if the owner is not on the premises at the time the warrant is executed, most courts would permit the search of the vehicle.

Under the fourth scenario, as the dissent in Cole points out, it is reasonable for the police to conclude that the vehicle is under the control of one or more of the residents. The police should not be required to conduct an investigation to determine the ownership or control of a vehicle of this nature while in the process of executing a warrant. Miller expresses a contrary view but it does not appear to be in the mainstream in cases under this fourth scenario. Nevertheless, Miller may be correct for a different reason — that the vehicle was not within the curtilage. It was located next to a separate building used to house an automobile repair facility. Miller may also be distinguished because it closely resembles the situation in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), where the search was conducted at a business and innocent customers (or their vehicles in the case of Miller) were present during the search.

The more difficult scenario is the one where an attended vehicle arrives or is present during the execution of a warrant with no other connection to the investigation or residence. Some courts would apparently permit the search; others would not. The rationale for searching an unattended and otherwise unconnected vehicle within the curtilage appears reasonable— that it might be used as a hiding place and police may reasonably infer a connection merely from its presence on the property. Police should not be put to the task of investigating the connection or lack of connection of unattended vehicles in the midst of executing a warrant. When the vehicle is attended, however, and obviously unconnected to the premises, there is little justification for the search. The constitutional polestar for any search is reasonableness. The fact that a vehicle is within the literal scope of a warrant does not make it reasonable to search any vehicle irrespective of the circumstances. "While police might not have a duty to conduct an in-depth investigation to determine a lack of connection, they should not be able to ignore the obvious. Clearly, it is not reasonable to search a pizza delivery person’s car, the mail truck or a school bus, merely because they happen upon the curtilage at the time of execution of a warrant that authorizes the search of vehicles within the curtilage of a subject property.

I think the Gottschalk test seems workable. This would permit a search in the four scenarios I identified but not permit the search of the delivery vehicle, mail truck or school bus. Nor would the search in Lowe be permitted under this test. The Gottschalk test bears some similarity to the Simmons “some connection” test except it has an objective component, which permits police to draw reasonable inferences from the circumstances. As for Cole, I think the fact that the vehicle was driven in and parked in the carport objectively suggested that the driver had an intimate connection to the residence more than a casual visitor. I would have authorized that search under the second component of the Gottschalk test. Although there might be circumstances where a vehicle’s occupants act suspiciously so as to justify a Terry stop or search, the authority to search under those circumstances would be independent from the authority granted under the warrant.

Adverting now to the facts of this case, even if the vehicle were technically within the curtilage, I would conclude, nevertheless, that the search was not authorized under the warrant. The police had observed the attended vehicle for thirty minutes prior to the execution of the warrant. The occupants made no contact with the residence or its occupants. This is clearly contrary to what would be expected from a drug purchaser or someone who is an invitee of the resident. The car was parked in an area accessible to any passerby. Under these facts, it was not objectively reasonable to believe that the vehicle was connected to the searched premises or its residents.

      . Appellant does not argue (and we do not consider) the lack of any connection between Appellant's vehicle and the suspected illegal activities or persons that were the target of the warrant.

      . This is a mixed question of law and fact. We defer to the trial court regarding factual disputes, but afford no deference in applying the law to the facts. United States v. Johnson, 256 F.3d 895, 913 (9th Cir.2001); State v. Glatzmayer, 789 So.2d 297 (Fla.2001); Taylor v. State, 848 So.2d 1191 (Fla. 5th DCA 2003).

      . Although not conclusive, "[Qencing configurations are important factors in defining the curtilage." Dunn, 480 U.S. at 301 n. 4, 107 S.Ct. 1134. '“[F]or most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage-as the area around the home to which the activity of home life extends-is a familiar one easily understood from our daily experience.’ ”). Id. at 302, 107 S.Ct. 1134 (quoting Oliver v. United States, 466 U.S. 170, 182, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). The fact that the fence has a gap for ingress and egress does not affect our analysis. See United State v. Hatch, 931 F.2d 1478, 1481 n. 2 (11th Cir.1991) (not necessary that fence defining curtilage be complete).

      . "Curtilage” cases often come up in a different context — where police have entered property without a warrant and observed criminal activity in plain view from a vantage point within the legal boundary of the property. In that context, the State typically argues that the confines of the curtilage are narrow in scope. In Wilson, for example, we concluded that the area where police were standing when they peered into a greenhouse was not within the protected curtilage of the residence, even though police crossed a fence to reach the greenhouse, which was well inside the legal boundary. Although the State urges an expansive interpretation of the word "cur-tilage” in this case, it makes no argument that the Dunn factors are inappropriate in discerning the curtilage boundary here. Surely, had a police officer been sitting in his car observing the residence from the exact place where Appellant parked his car, the State would rightfully assert that any plain view observations of the officer did not infringe upon protected space. In both contexts, the physical scope of the curtilage is and should be the same.

      . United States v. Napoli, 530 F.2d 1198 (5th Cir.1976).


author: COHEN, J.

text:
    Randy JAMES, Appellant, v. Lt. Darren GORYL, Antoinette Soler, et al., Appellees.
    No. 5D10-2407.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.
    Randy James, Milton, pro se.
    John M. Green, Jr., of John M. Green, Jr., P.A., Ocala, for Appellees.
   COHEN, J.

Randy James filed a complaint asserting claims for medical malpractice and negligence against individual employees of the Lake County jail due to injuries he sustained there when he fell down the stairs. Pursuant to section 57.085(6), Florida Statutes (2009), the trial court reviewed the complaint to determine whether it stated a cause of action. Finding it was frivolous, the trial court dismissed the complaint with prejudice. This court’s review is de novo. Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999).

After reviewing the complaint, we agree it was subject to dismissal, but disagree it was frivolous or should have been dismissed with prejudice. The complaint attempted to allege separate claims for negligence and medical malpractice. Viewing the allegations in the light most favorable to James, we conclude the complaint adequately alleged an action for negligence based on his placement in a second floor cell. However, this claim had to be dismissed because a mere negligence action may not be maintained against the individual employees of the Lake County jail. See § 768.28, Fla. Stat. (2009).

Regarding his medical malpractice claim, James failed to comply with section 766.203, Florida Statutes (2009), and therefore, this claim also had to be dismissed. See Anderson v. Wagner, 955 So.2d 586, 590 (Fla. 5th DCA 2006). Because James may be able to correct these defects, we reverse the dismissal of his complaint with prejudice and remand to allow him to file an amended complaint. The amended complaint will also be subject to preliminary review under section 57.085(6). See Reed v. Mims, 711 So.2d 169, 172 (Fla. 3d DCA 1998).

REVERSED and REMANDED.

PALMER and ORFINGER, JJ., concur.

      . It is clear the trial court believed James was only attempting to assert a medical malpractice action. This was undoubtedly due to James’ confusing and somewhat inconsistent allegations.


text:
    Robert Graham BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3714.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.

      Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Robert Graham Bishop appeals an order revoking his probation and sentencing him to three years in prison followed by a new two-year probationary term on an underlying charge of attempted lewd or lascivious exhibition. The State alleged and the trial court found that Bishop violated the probationary condition requiring that he “actively participate in and successfully complete a sex offender treatment program.” We affirm as to this issue. See, e.g., Adams v. State, 979 So.2d 921, 925 (Fla.2008) (holding “that the failure of a probation order to include specific deadlines or the number of attempts the defendant will be given to complete sex offender treatment does not eliminate the trial court’s discretion to revoke sex offender probation for failure to complete the program on the first try.”); Woodson v. State, 864 So.2d 512, 517 (Fla. 5th DCA 2004) (“If immediate initial attempts [at sex offender treatment] are unsuccessful and the defendant expresses a willingness to try again, other chances at compliance are a matter that should be left to the sound discretion of the trial court.”).

The State presented evidence below that Bishop was discharged from his first treatment program after displaying a “victim attitude” (or, seeing “himself as the one who was hurt”), and continuing to “fantasiz[e] about his past victims.” He was then discharged from his second treatment program after six months. Although the second discharge was based in part on multiple absences, some of which may have been because Bishop could not afford to pay for the therapy, Bishop’s counselor emphatically testified that Bishop could not continue outpatient treatment because he was resistant to therapy to the point of not being “amenable to treatment any longer” and because he continued “acting out at the time when he was last in treatment [and was] still acting out in society....” Given these facts, we find no abuse of discretion in the trial court’s revocation of Bishop’s probation.

However, we do note a potential sentencing illegality in the record on appeal. Bishop’s offense is a third-degree felony, which carries a five-year maximum penalty. Given that the trial court imposed a new split sentence totaling five years of confinement and supervision, Bishop must be given credit for the time he previously served on probation against the new probationary period imposed to comply with Waters v. State, 662 So.2d 332, 333 (Fla.1995). See Edwards v. State, 59 So.3d 1177 (Fla. 5th DCA 2011). It does not appear from Bishop’s sentencing documents, in the record on appeal, that this credit was awarded. Accordingly, we remand with directions that Bishop be given any probationary credit necessary for his new split sentence to comply with Waters.

AFFIRMED; REMANDED WITH DIRECTIONS.

PALMER, LAWSON, and EVANDER, JJ., concur.


text:
    Jaime PEREZ-OCEQUEDA, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4434.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.
    Jaime Perez-Ocequeda, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews and Wesley Heidt, Assistant Attorney Generals, Daytona Beach, for Appellee.
   PER CURIAM.

The trial court struck Appellant’s facially sufficient motion for postconviction relief “because Defendant failed to assert which portions of the court record support his claims.” This was erroneous and an impermissible shifting of the burden from the court to refute the claims with record attachments.

A defendant need not cite specific portions of the record to support his claim; rather, the burden is on the court to cite those portions of the record that refute the claim. See Fla. R.Crim. P. 3.850(d). In fact, the defendant’s factual allegations in a rule 3.850 motion must be accepted as true to the extent they are not conclusively refuted by the record. Simon v. State, 997 So.2d 490, 492 (Fla. 4th DCA 2008) (citing Prince v. State, 964 So.2d 783, 784 (Fla. 4th DCA 2007)).

Order striking Appellant’s motion is VACATED and case REMANDED for consideration of Appellant’s postconviction claims on their merits.

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


text:
    Craig FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4459.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.

      Craig S. Floyd, Bonifay, pro se.
    No Appearance for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

Appellant, Craig Floyd, was convicted in 1999 of two counts of burglary of a structure, one count of armed burglary of a structure, one count of criminal mischief, and two counts of felony petit theft. He is serving a sentence of life imprisonment. After his judgment and sentence became final in 2000, he filed three rule 3.850 motions for post-conviction relief, three rule 3.800(a) motions to correct sentence, and two petitions for writ of habeas corpus, which all lacked merit or were procedurally barred. The instant proceeding was filed as a petition for writ of prohibition in the Supreme Court of Florida, which transferred it to the circuit court in Lake County. The circuit court treated the petition as a rule 3.850 motion and denied it as procedurally barred.

After affirming the order denying relief on February 22, 2011, we issued an order directing Floyd to show cause why he should not be barred from further pro se filings in this Court. See generally State v. Spencer, 751 So.2d 47 (Fla.1999). Floyd did not file a response to the show cause order. We conclude that he is abusing the judicial process and should be barred from further pro se filings.

We now prohibit Craig Floyd from filing with this Court any more pro se petitions or appeals concerning Lake County Case No. 99-CF-336. The Clerk of this Court is directed not to accept any further pro se filings from Floyd which violate this prohibition. Any additional pleadings regarding this case will be accepted only if signed by a member in good standing with The Florida Bar. See Durr v. State, 57 So.3d 264 (Fla. 5th DCA 2011); Johnson v. State, 652 So.2d 980 (Fla. 5th DCA 1995); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995).

Future pro se filings PROHIBITED; Certified opinion FORWARDED to Department of Corrections.

ORFINGER, TORPY, and LAWSON, JJ., concur.

      . See Floyd v. State, 758 So.2d 1265 (Fla. 5th DCA 2000).


author: EVANDER, J.

text:
    Kenyon HARRISON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-206.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.

      Kenyon Harrison, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   EVANDER, J.

Harrison has filed a petition alleging that his appellate counsel was ineffective in failing to raise as an issue on direct appeal the trial court’s ruling that evidence of a State witness’ probationary status as a juvenile offender was inadmissible for cross-examination and impeachment purposes. We grant the petition.

After a jury trial, Harrison was convicted of 1) sale of cannabis within 1,000 feet of a school; and 2) possession of cannabis with intent to sell within 1,000 feet of a school. Those convictions were per curiam affirmed on appeal. See Harrison v. State, 982 So.2d 701 (Fla. 5th DCA 2008).

One of the State’s primary witnesses at trial was a juvenile, M.J. She testified to her alleged purchase of cannabis from Harrison. Prior to her testimony, the State successfully moved to prohibit defense counsel from attempting to impeach M.J. with evidence of a prior juvenile adjudication and the fact that she was still on juvenile probation. In granting the State’s motion in limine, the trial court relied on section 90.610(l)(b), Florida Statutes (2006), which provides that evidence of juvenile adjudications are inadmissible for purposes of attacking the credibility of a witness.

While the State has an interest in protecting the confidentiality of a juvenile offender’s record, the United States Supreme Court has held that this interest must give way to a defendant’s right to cross-examine on matters revealing possible biases, prejudices, or ulterior motives as they may relate directly to issues or personalities in the case at hand. See Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). As the Court explained:

The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected [the witness] from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the [defendant] to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records.

Id. at 320, 94 S.Ct. 1105.

Appellate counsel was ineffective in failing to raise this constitutional issue. We instruct the trial court, within thirty days of the mandate in this case, to appoint an appellate attorney to file a brief limited to this issue. After appointment, appellate counsel shall promptly file a new notice of appeal referencing this opinion. See generally Barnes v. State, 993 So.2d 1012 (Fla. 2d DCA 2008).

Petition GRANTED.

ORFINGER and LAWSON, JJ., concur.

      . § 90.610 Conviction of certain crimes as impeachment—
      (1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:

      (b) Evidence of juvenile adjudications are inadmissible under this subsection.


text:
    Nicolas MATOS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-565.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.
    Nicolas Matos, Bowling Green, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Nicolas Matos seeks a belated appeal of the trial court’s denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. See Fla. R. App. P. 9.141(c). We grant the petition. This opinion shall be filed in the lower court and treated as a notice of appeal of the order denying Matos’s 3.850 motion. For the reasons explained below, we also order that our clerk send a certified copy of this opinion to the appropriate correctional facility within the Department of Corrections pursuant to section 944.279, Florida Statutes, and 'direct that the Department consider levying sanctions against Matos pursuant to that statute.

On December 10, 2010, the trial court entered an order denying Matos’s rule 3.850 motion. In his petition for belated appeal, Matos asserted that the denial order was not mailed to him until December 21, 2010. He also alleged that the trial court mailed the order to the Central Florida Reception Center, instead of Hardee Correctional Institution where he was located. He alleged that he was transferred from Hardee Correctional Institution to a Kendall, Florida medical facility to address his “ongoing medical issues” — and that he did not receive the trial court’s denial order until January 27, 2011, after being transferred back to Hardee Correctional Institution and well after the deadline for filing a notice of appeal. Matos’s allegation that he did not receive the denial order until January 27, 2011, is not true.

As found by the trial court, acting as a commissioner in connection with our consideration of this petition, Matos actually received the order in December 2010, before the deadline for appeal. At the evi-dentiary hearing, Matos himself ultimately testified that he received the trial court’s order “a week or two after the court’s ruling.” In other words, Matos “knowingly or with reckless disregard for the truth brought false information or evidence before the court” when he alleged in the petition for belated appeal that the order was not delivered to him until January 27, 2011. Based upon this false representation, Matos should be sanctioned. § 944.279, Fla. Stat. (2010).

Nevertheless, the State indicated in the lower court that it does not object to granting Matos a belated appeal in light of the fact that Matos was hospitalized between the date he received the order and the deadline for filing a notice of appeal. Based upon the State’s agreement, we grant the petition for belated appeal.

PETITION FOR BELATED APPEAL GRANTED; ORDERED THAT COPY OF OPINION BE SENT TO CORRECTIONAL INSTITUTION FOR CONSIDERATION OF SANCTIONS.

TORPY, LAWSON, and EVANDER, JJ., concur.

      . Matos’ testimony at the hearing came only after the Department of Corrections produced sworn testimony from the corrections officer who personally delivered Matos' service copy of the order to him at Florida Hospital in Lake Placid, Florida, on December 27, 2010, before Matos was returned to Hardee Correctional Institution and before the deadline for filing a notice of appeal.


text:
    Francis BONILLA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-738.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.
    Gary S. Israel of Gary S. Israel, P.A., Orlando, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner seeks a writ of prohibition based upon an alleged violation of the speedy trial rule. We deny the petition.

Petitioner alleges that he was charged, by notice to appear, with a misdemeanor DUI violation on July 17, 2010. The State subsequently nolle prosequied the misdemeanor charge. On October 25, 2010, the State filed the felony charge of DUI with serious bodily injury, and, by amended information filed on November 12, 2010, added the felony charge of leaving the scene of an accident with injury. The felony charges arose from the same criminal episode as the nolle prosequied misdemeanor charge.

On January 21, 2011, Petitioner filed a notice of expiration of speedy trial and motion for discharge. Petitioner asserted that speedy trial had expired and that no recapture period was available because the misdemeanor charges had been nolle pro-sequied, relying on Florida Rule of Criminal Procedure 3.191(o). The trial court agreed with Petitioner regarding the leaving the scene charge filed on November 12, 2010, but denied Petitioner’s motion regarding the DUI with serious bodily injury charge. The trial court reasoned that the DUI with serious bodily injury charge was filed within the misdemeanor speedy trial period (to which the trial judge added the recapture period, which he included in his computation), but that the leaving the scene charge was untimely because it was outside this time period.

Although the trial judge’s reasoning was in error, he reached the right result on the charge that is the subject of this petition. In fairness to the trial judge, the parties failed to favor him with the dispositive authority on this point. In Nesworthy v. State, 648 So.2d 259 (Fla. 5th DCA 1994), we held that a felony DUI with serious bodily injury charge may be filed within the felony speedy trial period, even though a misdemeanor DUI charge arising from the same criminal episode had been previously nolle 'prosequied,. In so holding, we specifically rejected the very same contention made by Petitioner here — that rule 3.191(o) vitiated the recapture period. Our decision in Nesworthy was expressly approved by our high court in State v. Woodruff, 676 So.2d 975, 978 (Fla.1996).

Here, both of the felony charges were filed within 175 days of Petitioner’s arrest. When Petitioner filed the notice of expiration of speedy trial, the State was entitled to the benefit of the recapture window. Because the trial court held a timely hearing on the notice and scheduled trial within the recapture period, Petitioner was not entitled to discharge.

PETITION DENIED.

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

      . Much to our chagrin, appellate counsel also missed this authority. Once again, we admonish counsel to be more thorough in their research. Had this authority been identified earlier, this frivolous proceeding might have been avoided. Competent legal research is the responsibility of counsel.

      . This is not a case like Woodruff, where the State’s proof of the felony charges would be impossible due to the prior discharge on the misdemeanor. See Woodruff, 676 So.2d at 978 (contrasting felony DUI based on prior convictions with felony DUI with serious bodily injury).


text:
    Herbert J. BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1257.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.
    Herbert J. Bell, East Palatka, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from both the order denying the motion for post-conviction relief in Case No. 2000-CF-000479 rendered on February 8, 2011 and the order barring the defendant from filing further pro se motions rendered March 10, 2011 by the Circuit Court in and for Flagler County. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

PALMER, ORFINGER and TORPY, JJ., concur.


text:
    Freddie CLEMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-452.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.
   PER CURIAM.

Freddie Clemmons appeals an order dismissing in part and denying in part his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the court granted Clem-mons leave to amend one claim and has not yet issued a final ruling on that claim, the order at issue is a nonfinal, nonap-pealable order. See Gosney v. State, 55 So.3d 728, 729 (Fla. 2d DCA 2011). Accordingly, we dismiss this appeal.

Dismissed.

ALTENBERND, DAVIS, and SILBERMAN, JJ„ Concur.


author: DAVIS, Judge.

text:
    Tammy Lynn HARVESTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3066.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Tammy Lynn Harvester challenges the revocation of her community control after she admitted to violating two conditions of her supervision. We affirm both the revocation and her resulting sentences without further comment. However, the State correctly concedes that the written order of revocation erroneously reflects that Harvester admitted to violating three conditions of her community control when the transcript of the revocation hearing shows that she admitted to violating only two conditions. The trial court orally revoked her community control based only on the two admitted violations. We therefore remand for the limited purpose of the entry of a corrected written order of revocation which conforms with the oral pronouncement. See McNeil v. State, 908 So.2d 556, 557 (Fla. 2d DCA 2005).

Affirmed and remanded for entry of a corrected order.

NORTHCUTT and VILLANTI, JJ., Concur.


author: BLACK, Judge.

text:
    Jethro SENAT, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-440.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   BLACK, Judge.

Jethro Senat appeals the trial court’s order revoking his probation for leaving the county of his residence without permission (condition number three) and committing the new law violation of corruption by threat against a public servant (condition number five). We affirm without comment the trial court’s order; however, we remand with directions to correct a scrivener’s error.

The trial court orally found that Senat violated conditions three and five of his probation, but the written order reflects that Senat violated conditions two, five, and special condition x. To avoid future confusion, the discrepancy between the oral pronouncement and the written order requires that the order be corrected to reflect the specific conditions of the probation violation. See Feezel v. State, 463 So.2d 1244,1245 (Fla. 2d DCA 1985).

Affirmed; remanded with directions.

WHATLEY and MORRIS, JJ., Concur.


author: CASANUEVA, Chief Judge.

text:
    Fidensio GALLEGOS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-757.
    District Court of Appeal of Florida, Second District.
    June 15, 2011.

      Jorge Leon Chalela, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Chief Judge.

Fidensio Gallegos appeals the denial of his postsentence motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 8.170(l). Because the trial court failed to sufficiently ensure that Mr. Gallegos’s pleas were knowing and voluntary, we reverse the denial of the motion to withdraw plea.

Mr. Gallegos pleaded open to a number of second- and third-degree felonies and one misdemeanor, all spread across two case numbers. The following transpired as part of the plea colloquy:

THE COURT: I have two plea forms in front of me. One of them is 09-6570, which states you’re pleading guilty to grand theft of a motor vehicle, punishable by up to five years in prison; driving with a suspended license, punishable by up to five years in prison; fleeing and attempting to allude [sic] the police,[] punishable for up to fifteen years in prison; felon in possession of a firearm, punishable for up to five years in prison.[] Does that carry a three year minimum?
[DEFENSE]: Not a possession, Judge.
THE COURT: Okay. And possession of drug paraphernalia, punishable for up to one year in the county jail. Do you understand that?
MR. GALLEGOS: Yes, sir.
THE COURT: And in a separate case, 08-15691, you’re charged with ... fleeing to allude [sic] the police, punishable for up to five years in prison; driving with a suspended licence [sic], punishable by up to five years in prison. Do you understand that?
MR.GALLEGOS: Yes, sir.
THE COURT: Have you noticed him as a violent career criminal?
[STATE]: Yes, sir. And the State has also noticed him as a habitual felony offender.
THE COURT: Do you understand that pursuant to those statutes, if I find that you qualify, I can enhance your sentences in this particular matter?
MR. GALLEGOS: Yes, sir.
THE COURT: Also — are you sure of that?
MR. GALLEGOS: Yes, sir.

The trial court then accepted the pleas and sentencing was postponed to a later date.

At the sentencing hearing, the trial court found that Mr. Gallegos qualified for habitual felony offender (HFO) sentences. See § 775.084(4)(a)(3), Fla. Stat. (2008). In case number 08-15691, the trial court sentenced him as an HFO on both third-degree felony charges, increasing each sentence from five years’ incarceration to ten, concurrent. See § 775.082(3)(d) (stating that third-degree felonies are typically punishable by up to five years in prison). And the trial court did the same in case number 09-6570, sentencing Mr. Gallegos to ten-year terms as an HFO on the first two counts, both third-degree felonies.

After sentencing, Mr. Gallegos filed his motion to withdraw plea. One of his arguments in that motion was that his plea was not voluntary because the trial court failed to discuss the maximum penalties associated with violent career criminal or habitual felony offender sentences. The trial court held a hearing without Mr. Gallegos’s presence. Instead, the trial court accepted the representations of Mr. Gallegos’s attorney as to what Mr. Gallegos would have stated if he had testified at the hearing. Mr. Gallegos would have testified that, at the time he tendered his pleas, he did not understand the trial court could enhance his sentences so that they were greater than the maximum numbers the court had identified during the plea colloquy. The trial court responded that it did tell Mr. Gallegos it could enhance his sentences; it just did not tell him how much the enhancement could be. Defense counsel argued:

There was no definition of the enhancement. Exactly, Judge; there wás no definition of what that was. What’s the enhancement? I mean, he didn’t know that the sentence could be, in effect, doubled, which is what happened on the [third-degree felonies].

The trial court denied the motion on all grounds.

One basis for withdrawal of a plea after sentencing is that the plea was not entered voluntarily. See Fla. R. Crim. P. 3.170(i); Fla. R. App. P. 9.140(b)(2)(A)(ii)(c). “Before accepting a plea of guilty or nolo contendere, the trial judge shall determine that the plea is voluntarily entered.... ” Fla. R. Crim. P. 3.172(a). To make this determination, the trial court must ensure that the defendant understands the maximum possible penalty for the charges to which the defendant seeks to enter a plea. See Fla. R. Crim. P. 3.172(c).

Before accepting his pleas, the trial court did no more than tell Mr. Gallegos that it could potentially enhance his sentences under the habitual felony offender and violent career criminal statutes. We hold that this warning, standing alone, did not ensure that Mr. Gallegos understood he was facing ten-year sentences on third-degree felonies, especially because the trial court had just told him that those same offenses were punishable by up to five years in prison. Therefore, the trial court abused its discretion by denying Mr. Gallegos’s subsequent motion to withdraw plea. See Schriber v. State, 959 So.2d 1254, 1256 (Fla. 4th DCA 2007) (applying an abuse of discretion standard to the denial of a motion to withdraw plea). Accordingly, we reverse and remand with directions to permit Mr. Gallegos to withdraw his pleas.

Reversed and remanded with instructions and for further proceedings.

VILLANTI and LaROSE, JJ., Concur.

      . This particular offense was charged as fleeing or attempting to elude at high speed which is a second-degree felony. See § 316.1935(3)(a), Fla. Stat. (2008).

      . Felon in possession of a firearm is actually a second-degree felony punishable by up to fifteen years in prison or more depending upon possible enhancements. See §§ 775.082(3)(c), 790.23(3), Fla. Stat. (2008). Although Mr. Gallegos raises the trial court's misstatement as a basis for relief in his brief, he did not preserve it for our review because he did not raise it in his motion before the trial court.


text:
    Alvin WHITEHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1064.
    District Court of Appeal of Florida, Second District.
    June 15, 2011.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Pickles v. State, 976 So.2d 690, 693-94 (Fla. 4th DCA 2008); Youngblood v. State, 651 So.2d 227, 228 (Fla. 1st DCA 1995).

SILBERMAN, KELLY, and LaROSE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Andrey BARHATKOV, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for DBALT 2006-AF1; and Leslie S. Barhatkov, Appellees.
    No. 2D10-1640.
    District Court of Appeal of Florida, Second District.
    June 15, 2011.
    Andrey Barhatkov, pro se.
    Michael K. Winston and Dean A. Mo-rande of Carlton Fields, P.A., West Palm Beach, for Appellee HSBC Bank USA, National Association, as Trustee for DBALT 2006-AFI.
    No appearance for Appellee Leslie S. Barhatkov.
   ALTENBERND, Judge.

Andrey Barhatkov appeals an order denying a stay of a foreclosure sale. We affirm and write only to explain the unusual posture of this case.

This is an appeal from a nonfinal order pursuant to Florida Rule of Appellate Procedure 9.130. As a result, the parties have provided appendices in lieu of a record, and the record is probably incomplete. We derived the following facts from our limited record.

Leslie S. Barhatkov, who apparently is the wife of Andrey Barhatkov, obtained a loan that was secured by a home in Davenport, Florida. She is the only signatory on the note and mortgage. Andrey Barhat-kov signed no documents, and it is unclear from our record whether he has any legal interest in this home. HSBC Bank USA filed a complaint to foreclose the mortgage, naming Leslie S. Barhatkov and “unknown spouse of Leslie S. Barhatkov.”

In August 2009, HSBC Bank USA obtained a default against “unknown spouse of Leslie S. Barhatkov N/K/A Andrey Bar-hatkov.” The appendices do not include any of the documents establishing service of process and, thus, we do not know how the unknown spouse became known. The trial court entered a Summary Final Judgment in Foreclosure in September 2009. The style of that final judgment references “unknown spouse of Leslie S. Barhatkov if any.” Andrey Barhatkov does not appear to be mentioned anywhere in this final judgment, although he was listed as receiving a copy of the final judgment. No one appealed that judgment.

In March 2010, Leslie S. and Andrey Barhatkov jointly filed a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). The order on appeal in this proceeding is the order denying that motion. Only Andrey Barhat-kov filed a notice of appeal in this case. When he filed his brief, he listed only Leslie S. Barhatkov as the appellant, indicating that he was filing the brief for her. He is not a lawyer, and we have treated the brief as filed by Andrey Barhatkov on behalf of himself. Under the rules of procedure, Leslie S. Barhatkov is an appellee. See Fla. R.App. P. 9.020(g)(2). She never made a motion to be joined as an appellant. See Fla. R.App. P. 9.360(a).

Given that Andrey Barhatkov is not a signatory on any of the relevant loan documents, and nothing in the appendix suggests that he has homestead rights or any legal interest in the real property subject to foreclosure or that he could have a deficiency judgment entered against him, he has raised no issue entitling him to any relief in this proceeding.

Affirmed.

KELLY and CRENSHAW, JJ., Concur.


text:
    George MANN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2920.
    District Court of Appeal of Florida, Second District.
    June 15, 2011.
    James Marion Moorman, Public Defender, and Mark C. Katzef, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   BLACK, Judge.

We affirm George Mann’s conviction and sentence for robbery with a weapon without comment. However, we remand for the trial court to correct a scrivener’s error apparent on the face of the written judgment. While the record reflects that Mann was convicted of robbery with a weapon, the written judgment erroneously indicates he was convicted of robbery with a firearm. See Willingham v. State, 48 So.3d 173, 173 (Fla. 2d DCA 2010); Carter v. State, 32 So.3d 67, 67 (Fla. 2d DCA 2009).

Judgment and sentence affirmed; remanded with instructions.

DAVIS and KHOUZAM, JJ., Concur.