author: TORPY, J.

text:
    Trevor PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3262.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 2011.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

Appellant was convicted of first-degree murder and shooting into an occupied vehicle arising from a drive-by shooting. The trial court initially denied Appellant’s motion for postconviction relief without a hearing, but we reversed and remanded for an evidentiary hearing on several claims. After the evidentiary hearing, during which the trial court permitted an amendment to include an additional claim of newly discovered evidence, the trial court again denied relief. We reverse.

Appellant was convicted of murdering LaShay Copeland (“the victim”) in a drive-by shooting at 3:10 a.m. on January 3, 2004. An altercation an hour earlier between members of the Biggs and the Patterson families motivated the shooting. The altercation involved Antonio Biggs (“Antonio”), his brother, Antwan Biggs (“Antwan”), and their uncle, Isaac Hughey, on one side and Reggie Patterson (“Reggie”) and his cousins Allen Patterson (“Allen”) and Keith Holloway (“Holloway”), on the other side. During the melee, the windshield on Reggie’s Crown Victoria was cracked, and Reggie and Allen threatened to kill members of the Biggs family. Appellant was indisputably neither involved in nor present during the altercation.

After the altercation, Antonio and Antwan drove home. They called their mother, who was out with a friend. She instructed them to send their younger brother, Trevon, to pick her and her friend up, and then she called the police department to report the incident. Trevon and his girlfriend, the victim, went to pick up his mother and her friend in the same truck that his brothers had been driving earlier. As the four neared the Biggs residence, they saw Reggie’s Crown Victoria parked with its lights off near an intersection. When they turned at the intersection, one or more occupants of the Crown Victoria shot into the Biggs vehicle, striking the mother and the victim. The victim later died from a bullet wound. The weapons used in the murder were never found.

Although Appellant had no connection to the earlier confrontation, and had no apparent motive for the crime, he was connected to the shooting primarily through the testimony of Trevon. At trial, Trevon identified Appellant (who is apparently Trevon’s cousin) as the person who was shooting from the right front seat of the Crown Victoria. Trevon admitted, though, that he had given contradictory statements to police and in his deposition. In those prior statements, Trevon acknowledged that he “couldn’t see the face” or the clothing of the front passenger. At trial, he explained the apparent discrepancy as follows: “I couldn’t see the whole face, but I seen the part of the bumps. That is how I know it was him.” The “bumps” he referred to are the pock marks on Appellant’s face. Trevon acknowledged that he never said anything about seeing these “bumps” to the police or to defense attorneys during his deposition. His explanation for this omission was that he “wasn’t functioning right ... [and] wasn’t thinking right at the time....”

Other evidence at Appellant’s trial was similarly questionable. State witness Barry Trent, a former deputy sheriff, testified that he happened to be talking to Appellant in a holding cell when Appellant spontaneously said that he had been in a vehicle involved in a shooting. Trent denied that he had questioned Appellant and denied any prior knowledge of the shooting incident. On cross-examination, however, the defense established that Trent and the victim’s father were friends and telephone records proved that the two had exchanged numerous phone calls on the day of the murder. The trial court denied an attempt by the defense to call Trent’s former supervisor to offer evidence of bias.

In his defense, Appellant called his girlfriend, Reggie, and Holloway to testify. The girlfriend testified that she and Appellant were together from 10:00 p.m. until 5:30 a.m. on the day of the shooting. Reggie testified that he, Holloway, and Allen were the only ones in the Crown Victoria when the victim was shot and that it was Holloway who did the shooting. He said that Appellant was not in the car that night. Reggie admitted on cross-examination, however, that when he was initially interviewed by the police, he told them that Appellant was involved in the shooting. Holloway asserted his privilege against self-incrimination. He did interject, however, that “me and [Appellant] never seen each other.”

After this Court affirmed his conviction, Appellant filed a motion for postconviction relief, asserting that his trial counsel had been ineffective. Among other things, Appellant alleged that his trial counsel had been ineffective for failing to call Matthew Thomas (Holloway’s jail cellmate) and Ashley Barks (Allen’s girlfriend). Appellant also requested relief based on newly available testimony from Holloway, who by this time had waived his privilege against self-incrimination following his conviction and appeal. The trial court summarily denied relief after finding that Thomas’ and Holloway’s testimony would be cumulative with that of Reggie’s, and that Allen’s girlfriend’s testimony was irrelevant. We reversed for an evidentiary hearing on these claims.

On remand, a different judge conducted the evidentiary hearing. Holloway’s cellmate testified that he had been in a holding cell with Holloway and that Holloway had confessed to shooting the victim. Holloway told the cellmate that Allen had been driving the car and that Reggie was the third passenger in the car when the shooting took place. Holloway also admitted to the cellmate that he and Reggie initially lied to the police when they said that Appellant was involved. The trial court concluded that the omission was not prejudicial because the cellmate could not have testified at trial. He reasoned that the testimony was not sufficiently corroborated, as required by section 90.804(2)(c), Florida Statutes. Although the trial court acknowledged that Reggie’s testimony might have supplied the needed corroboration, he concluded that because the jury had rejected Reggie’s testimony, the necessary corroboration was lacking. We disagree.

Whether the omission by trial counsel was prejudicial must be viewed from the standpoint of what was known at the time of trial. At the time of trial, an objection based on lack of corroboration, if advanced, would have failed because other evidence corroborated that Holloway was involved in the shooting. See Perry v. State, 675 So.2d 976 (Fla. 4th DCA 1996) (corroboration requirement satisfied if other evidence points to declarant as culpable party). Holloway had been involved in the earlier altercation during which threats were made to members of the Biggs family. Proof of motive coupled with Reggie’s inculpatory testimony was clearly sufficient to meet the threshold requirement for admission.

As far as the cellmate’s credibility was concerned, we are unsure what aspect of the testimony was not deemed credible by the trial judge. The cellmate was simply reporting what Holloway had told him, which Holloway himself has now confirmed. In any event, the credibility of the cellmate — the “in-court witness” — was for the jury to determine. Carpenter v. State, 785 So.2d 1182, 1203-04 (Fla.2001).

We also disagree with the trial court’s determination of the admissibility and significance of the testimony of Allen’s girlfriend. Allen’s girlfriend testified at the evidentiary hearing that Allen is the father of her child. An hour before the altercation, she spoke with Allen on the phone who told her that he was with Reggie and Holloway. A few hours later, Allen, Reggie, and Holloway came to her house and borrowed her car. She did not see Appellant at all. The next day, the girlfriend heard about the shooting. She saw Allen on the phone “all that morning” talking about the girl who got shot and heard him say that “nobody would be able to find the weapons.” She confronted Allen who told her that the “girl wasn’t supposed to be in that truck.” She was told that Reggie had been in a fight and then Allen, Reggie, and Holloway left. She was cautioned by both Allen and Holloway not to “say anything.” When Allen found out about Appellant’s arrest, he thought it was funny and told his girlfriend that they had “the wrong person.” Allen also laughed when another person was arrested, but he did not laugh about Reggie’s arrest. Allen’s girlfriend stated that she was willing to testify at a new trial if one took place.

The trial court concluded that Allen’s girlfriend’s testimony was not necessarily inconsistent with Appellant’s guilt and that much of her testimony was inadmissible hearsay. It concluded that her testimony concerning Allen’s statements would not have been admissible as statements against penal interest because Allen never expressly implicated himself and might have been available to testify but was not called at trial. We disagree. A statement need not be a complete confession to qualify as one made against one’s interest. Masaka v. State, 4 So.3d 1274, 1280-81 (Fla. 2d DCA 2009). Here, Allen’s statements to his girlfriend clearly inferred guilt. For example, he knew that the weapons would not be found and that the victim was not the target of the shooting. See id. (even without direct confession, statements can be incriminating based on context). Allen also admonished his girlfriend to keep quiet, again suggesting guilt. As for Allen’s unavailability, we must assume that had counsel acted competently, counsel could have established the predicate by calling Allen and asking him about the statements made to his girlfriend, forcing him to assert his privilege against self-incrimination, or at least forming a predicate for the admission of statements for impeachment purposes as prior inconsistent statements.

As far as the significance of the girlfriend’s other testimony, we view that issue de novo and reach a different conclusion than the trial court regarding its importance. See Sochor v. State, 888 So.2d 766, 781 (Fla.2004) (whether omission of evidence is prejudicial is subject to de novo review). Indisputably, Reggie, Allen, and Holloway were together during the earlier altercation. Appellant was not present. Only three people were seen in the Crown Victoria at the time of the shooting. Shortly after the shooting, Reggie, Allen, and Holloway were again seen together. Appellant was again not present. This proof of the alpha and the omega suggests that the three were together in between. The fact that they “ditched” the Crown Victoria and borrowed Allen’s girlfriend’s car also would have established by inference that the three (Reggie, Allen, and Holloway) knew the police would be looking for the Crown Victoria because it had been involved in the crime.

In our opinion remanding for an eviden-tiary hearing, this Court directed the trial court to consider the significance of the newly discovered evidence of Holloway. At the evidentiary hearing, Holloway explained that, after the altercation with the Biggs family, he, Reggie, and Allen went to get an assault rifle and a shotgun. According to Holloway, he took the assault rifle and was in the front passenger seat. Reggie took the shotgun and was in the back passenger seat. Allen was driving. Holloway testified that he and Reggie started shooting into the Biggs’s truck when they saw it at a four-way stop. After the shooting, they ditched the Crown Victoria and walked to Allen’s girlfriend’s house ten to fifteen minutes away. They then took her car and dropped the guns off with some of Allen’s “people.” Holloway said that he went along with the lie when the police told him at his arrest that they knew he was not the shooter. In response to the court’s question why it should believe him now, Holloway stated:

Because. Why should he believe me? Just from the beginning he was never my buddy. And if he wasn’t innocent, I wouldn’t be here in the first place to even be trying this. He’d be telling the truth. If he would have did this, I would never came here. He’s not my friend. We never hung out or nothing. Anybody can tell you that. I’m just here trying to correct some things I did in the past that affected him and his family’s life. That’s why I’m here. His suffering.

Holloway also stated that if he had to go to trial he would testify against his cousin Allen.

The trial court concluded that Holloway could not be believed. To reach this conclusion, the court expressly relied upon non-record evidence, consisting of Holloway’s taped confession in which he denied that he was the shooter and implicated Appellant. On rehearing, the court acknowledged its improper reliance on this testimony, but stated that it would have reached the same conclusion without consideration of this evidence. See Branton v. State, 24 So.3d 1224, 1226 (Fla. 2d DCA 2009) (‘We are not convinced that evidence from the [trial] record can be used by the postconviction court to refute [the appellant’s] postconviction claim.”). Although credibility is an issue for the trial court, we are not bound by credibility determinations that are not based on substantial, competent evidence. Here, Holloway’s testimony corroborates that of Reggie, Allen’s girlfriend, and Holloway’s jail cellmate. It is consistent with his assertion at trial that he had “never seen” Appellant. It is also consistent with the fact that the motive for the shooting was the earlier altercation, which did not involve Appellant. Moreover, the theory of defense was mistaken identity and Holloway implicated his own cousin. It defies logic that Holloway, already convicted of the crime, would implicate his relative as the third accomplice, unless his cousin was, in fact, the third accomplice and Appellant was, in fact, wrongly accused.

Finally, we address the issue of the amended postconviction motion. Since we remanded this case, Trevon has now recanted his earlier testimony. During the evidentiary hearing, he testified that his earlier testimony was in error and that he was now confident that Appellant was not in the Crown Victoria that night. Although the trial court found Trevon to be “a sincere young man who cares about being truthful and doing the right thing,” it concluded that Trevon’s earlier identification was more reliable.

Witness recantations are generally viewed as unreliable because they typically involve an admission of perjury. Archer v. State, 934 So.2d 1187, 1196 (Fla.2006). For this reason, we are usually highly deferential to credibility determinations regarding recantations. Id. This is not a typical recantation case, however, because the witness’s testimony has been equivocal from the beginning, and the recantation only involves the accuracy of the witness’s identification. The trial judge did not conclude that the recantation was the product of perjury. To the contrary, the trial judge believed that Trevon was “a sincere young man who cares about being truthful and doing the right thing.” The deference that we typically afford to a trial judge’s credibility determinations is based on his or her superior position to view the demeanor of the witness. Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999). Here, the lower court’s assessment of the witness’s demeanor supports a finding that his recantation was truthful. The finding that his prior testimony was “more reliable,” by contrast, was based on objective circumstances, primarily the temporal connection, and we are equally capable of making that assessment based on the totality of the circumstances. See Lambrix v. State, 39 So.3d 260, 272 (Fla.2010) (in evaluating recanted testimony all circumstances of case should be considered).

Here, Trevon’s initial eyewitness identification was admittedly equivocal, in that he acknowledged that he could not see the face of the suspect. Further, Trevon had no motivation to be untruthful, then or now. His girlfriend was murdered and his mother was injured in the shooting. There is no evidence that he had been threatened or pressured to alter his testimony. His recanted testimony is consistent with much of the other evidence adduced at trial and in the subsequent hearing. When we consider the totality of the circumstances, we conclude that the recanted testimony is at least as reliable as that offered at trial, adding support for a new trial. Whether Appellant would be entitled to a new trial based solely on the recanted testimony is an issue we need not confront. Given the totality of the circumstances, a new trial is warranted.

REVERSED AND REMANDED.

GRIFFIN and COHEN, JJ., concur.

      . In his deposition, he stated:
      QUESTION: Well, you told the police you couldn't really see his face, isn't that right?
      ANSWER: Yeah.
      QUESTION: And was that not true?
      ANSWER: That was true, yes.
      QUESTION: And that you couldn't really see his face?
      ANSWER: Yes.
      QUESTION: And then — when they asked you about describing his clothes, you told them it was too dark and you couldn't really see; is that right?
      ANSWER: I couldn't see his clothes.
      QUESTION: And you couldn’t see his face either, right?
      ANSWER: No. Not really, no.

      . He testified at trial:
      ANSWER: At the time I wasn't functioning right. I was in a mode where it was just like, hey—
      QUESTION: We—
      ANSWER: I wasn’t thinking right at the time, that is why.
      QUESTION: I understand. But-and I understand you may have been upset, and who wouldn't be, at the time that you gave the statement to Detective Nelson. But the fact is, you gave a statement under oath?
      ANSWER: Yes.
      QUESTION: And you said, every time you were asked, "I couldn't really see anybody's face,” correct?
      ANSWER: Yes.

      . In his postconviction motion, Appellant also asserted that trial counsel failed to call two of Trent's former co-workers who allegedly would have testified that Trent had a reputation for untruthfulness. The trial court summarily denied the claim because Trent had been effectively impeached at trial. We affirmed the summary disposition on that ground.

      . Payne v. State, 965 So.2d 149 (Fla. 5th DCA 2007).

      . Payne v. State, 21 So.3d 900 (Fla. 5th DCA 2009).

      . Appellant’s trial counsel and a seasoned investigator from the Office of the Public Defender both admitted at the evidentiary hearing that they were well aware of the existence of Thomas and Barks, and had been deficient for not calling them or proffering their testimony. Although counsel's admissions are not necessarily dispositive, here, no legitimate trial strategy explains the deficiencies. The only explanation offered by counsel for not calling one of the witnesses, for example, was his fear that he would irk the trial judge by prolonging the trial.


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    Joseph LOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1260.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 2011.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Joseph Lott appeals his conviction and sentence for driving while license suspended (DWLS) causing serious bodily injury and reckless driving causing serious injury. This case stems from a car accident, which occurred while Lott was fleeing from a police officer in a stolen car. As a result of the accident, the driver of the other car suffered serious injuries. Based on this incident, Lott was charged with: (1) fleeing or attempting to elude a police officer; (2) DWLS causing serious bodily injury; (3) reckless driving causing serious injury; (4) leaving the scene of a crash involving personal injury; and (5) grand theft of a motor vehicle. He entered a no contest plea to all five of the charges and he was sentenced accordingly. On appeal, Lott contends his conviction for both DWLS causing serious bodily injury and reckless driving causing serious injury is a double jeopardy violation because there was only one victim. We disagree and affirm.

Although the Constitution prohibits multiple prosecutions, convictions and sentences for the same criminal offense, the courts have consistently held that “there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments.” Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009); see also McKinney v. State, 66 So.3d 852 (Fla.2011). We know that the crimes the defendant has been convicted of in the instant case arose out of the same criminal transaction, so the first step in the inquiry is to determine whether there is a clear statement of legislative intent to authorize or to prohibit separate punishments for violations of sections 316.192(3)(c)2. and 322.34(6)(b), Florida Statutes. The analysis of these two statutes reveals no clear statement of legislative intent one way or the other.

“[A]bsent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger ‘same-elements’ test pursuant to section 775.021(4) ... is the sole method of determining whether multiple punishments are double-jeopardy violations.” Gaber v. State, 684 So.2d 189, 192 (Fla.1996) (footnote omitted); see also Valdes, 3 So.3d at 1070 (“ ‘Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test, as codified in section 775.021, Florida Statutes (1997), to determine whether separate offenses exist.’” (quoting Gordon v. State, 780 So.2d 17, 19-20 (Fla.2001), receded from on other grounds by Valdes)). Therefore, the next step in the double jeopardy analysis is the application of the Blockburger test codified in section 775.021(4), Florida Statutes, which provides:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.[]

The Legislature has clearly expressed its intent in section 775.021(4)(a) that an individual who commits an act or acts that constitute separate criminal offenses committed in a single transaction shall be punished separately for each offense. Offenses are separate offenses if each requires proof of an element that the other does not. Both statutes at issue here, sections 316.192(3)(c)2. (reckless driving) and 322.34(6)(b) (driving with a suspended license), require proof of an element that the other does not. Hence the Legislature intends separate convictions and sentences for each offense unless the offenses fall into one of the enumerated exceptions listed in section 775.021(4)(b). See Valdes, 3 So.3d at 1071.

The first exception does not apply. As previously stated, the offenses do not require identical elements of proof. Under the second exception, “ ‘[t]he Legislature intended] to disallow separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees.’ ” Valdes, 3 So.3d at 1076 (quoting State v. Paul, 934 So.2d 1167, 1176 (Fla.2006) (Cantero, J., specially concurring), receded from on other grounds hy Valdes). This exception does not apply because “the two offenses are found in separate statutory provisions; neither offense is an aggravated form of the other; and they are clearly not degree variants of the same offense.” Valdes, 3 So.3d at 1077.

The third exception does not apply because one offense is not a category one, necessarily lesser included offense of the other. See State v. Florida, 894 So.2d 941, 947 (Fla.2005) (“[Subsection (4)(b)(3) applies only to necessarily lesser included offenses listed in Category 1 of the Schedule of Lesser Included Offenses .... ”), receded from on other grounds by Valdes; see also McKinney v. State, 51 So.3d 645 (Fla. 1st DCA 2011). “Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense.” Sanders v. State, 944 So.2d 203, 206 (Fla.2006), quoted in Coicou v. State, 39 So.3d 237, 243 (Fla.2010). Because the offenses at issue here contain different elements that are not subsumed within the other, one is not a necessarily included offense of the other.

Based on the Valdes analysis, we conclude that convictions and punishments for driving while license suspended (DWLS) causing serious bodily injury and reckless driving causing serious bodily injury do not violate double jeopardy when both convictions arise out of a single transaction.

Lott contends otherwise based on State v. Cooper, 634 So.2d 1074 (Fla.1994), where the Florida Supreme Court held that “[i]t is entirely appropriate to convict a person of both DUI manslaughter and driving while license is suspended, but it is inappropriate to enhance the degree of both crimes by using a single homicide.” Id. at 1074-75 (citing State v. Chapman, 625 So.2d 838 (Fla.1993), and Houser v. State, 474 So.2d 1193 (Fla.1985)). Lott wants to extend the reasoning from Cooper and Chapman, both of which involved a single homicide, to the instant case where a single serious injury occurred. In support of this analysis, he cites Kelly v. State, 987 So.2d 1237, 1239-40 (Fla. 2d DCA 2008) (holding that it was a double jeopardy violation to convict and sentence for both DUI with serious bodily injury and driving without a valid license with serious bodily injury based on an injury to a single victim).

The logic applied in Cooper, Chapman, and Houser is simply that while “[DUI] manslaughter and vehicular homicide [are] two separate crimes and ... neither [is] a lesser included offense of the other.... ‘Florida courts have repeatedly recognized that the legislature did not intend to punish a single homicide under two different statutes.’ ” State v. Chapman, 625 So.2d 838, 839 (Fla.1993) (quoting Houser, 474 So.2d at 1197). Thus, the Florida Supreme Court concluded that the legislative intent is clear that there should not be multiple convictions and punishments for DWI manslaughter and vehicular homicide where only a single death is involved because both crimes fall “squarely within the scope of this state’s regulation of homicide.” Houser, 474 So.2d at 1196.

However, the two statutes at issue in the instant ease are not homicide statutes. One involves the regulation of driving on public roads and the other regulates licenses to drive. Section 316.192(3)(c)2. applies to reckless driving that causes serious bodily injury. Section 322.34(6)(b) involves driving without a valid driver’s license that causes death or serious bodily injury. As the First District Court explained in McKinney:

Unlike DUI manslaughter and vehicular homicide, fleeing or eluding can be committed without causing a death. Thus, fleeing or eluding is not a homicide offense. The alternative element of “serious bodily injury” contained in section 316.1935(3)(b) distinguishes fleeing or eluding from ... DWI manslaughter, which the supreme court held in Houser to be a homicide offense rather than an enhancement to the penalty for DWI because death was an element of the offense. The fact that Appellant’s conviction for fleeing or eluding was based upon a death, rather than serious bodily injury, is irrelevant to the double jeopardy analysis. See § 775.021(4)(a), Fla. Stat. (2008) (explaining that the comparison of the elements of the offenses is to be made “without regard to the accusatory pleading or the proof adduced at trial”).

51 So.3d at 648. Therefore, we do not believe that the analysis of Cooper, Chapman, or Houser applies here.

Moreover, if the legislative intent is clear from the statute or from application of the Blockburger test codified in section 775.021(4) to punish for each offense, it does not matter that the offenses stem from the same wrongful conduct. M.P. v. State, 682 So.2d 79, 82 (Fla.1996) (“We also note that it makes no difference that the offenses at issue stemmed from the same conduct by M.P. The Supreme Court specifically overruled the Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), ‘same-conduct’ test as being ‘wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.’ United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993).”).

In Dixon, the Court was concerned with an adjudication of criminal contempt based on violation of a civil protection order that the defendant not “molest, assault, or in any manner threaten or physically abuse” his estranged wife. He was held in criminal contempt for violating that order when he threw his estranged wife down a flight of stairs, kicked her body, and caused injuries to her head. He was sentenced to 600 days’ imprisonment. The Government subsequently brought charges against the defendant for assault with intent to kill for the same conduct of throwing his estranged wife down the stairs and causing injury to her. The defendant objected, claiming a double jeopardy violation. The Court held, “Applying the Blockburger elements test, the result is clear: These crimes were different offenses, and the subsequent prosecution did not violate the Double Jeopardy Clause.” 509 U.S. at 701-02, 113 S.Ct. 2849. Like Dixon, we do not think that double jeopardy is violated when a defendant violates the two statutes at issue here causing an injury to the same victim because each is a different offense with different elements.

We conclude that there is no clear statement of legislative intent in the two statutes at issue to either authorize or prohibit separate convictions and punishments based on a single injury to the same victim. Therefore, the Blockburger analysis under section 775.021(4) must be utilized, and under that analysis, there is no double jeopardy violation here. Hence the fact that each offense in the instant case may stem from the conduct of wrongfully injuring the same victim does not preclude the court from convicting and sentencing the defendant for each offense. Therefore, all convictions and sentences are affirmed.

AFFIRMED.

ORFINGER, C.J., and JACOBUS, J., concur.

      . § 322.34(6)(b), Fla. Stat. (2009).

      . § 316.192(3)(c)2., Fla. Stat. (2009).

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . See Valdes, 3 So.3d at 1070.

      . Section 775.021(4) was originally enacted in 1976 to replace “the common law 'single transaction rule,’ which limited a conviction to only the most serious offense arising from a single criminal transaction....” Kelso v. State, 961 So.2d 277, 279 (Fla.2007). The statute was amended in 1983 to include the last sentence, "For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.” Ch. 83-156, § 1, at 556, Laws of Fla. This sentence was added in an effort to expressly incorporate the Blockburger same-elements test. Kelso, 961 So.2d at 280. Subsequent amendments renumbered section 775.021(4) to 775.02 l(4)(a) and added section 775.021(4)(b) to emphasize preference for the Blockburger test over the rule of lenity with three exceptions. Id. at 281.

      . Reckless driving under section 316.192(3)(c)2. cannot be a necessarily lesser included offense of driving with a revoked or suspended license under section 322.34(6)(b) because reckless driving involves an element of intentional misconduct while careless or negligent driving under section 322.34(6)(b) does not. See Lewek v. State, 702 So.2d 527, 529 (Fla. 4th DCA 1997) ("Driving recklessly means driving with a willful or wanton disregard for safety. See State v. May, 670 So.2d 1002 (Fla. 2d DCA 1996). 'Willful' means ‘intentional, knowing, and purposeful,’ and ‘wanton’ means with a ‘conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.’ W.E.B. v. State, 553 So.2d 323, 326 (Fla. 1st DCA 1989) (quoting Fla. Std. Jury. Instr. (Misd.) (reckless driving))."). A violation of section 322.34(6)(b) cannot be a necessarily lesser included offense of reckless driving under section 316.192(3)(c)2. because a suspended or revoked license is not an element of reckless driving. See C.D. v. State, 356 So.2d 1249, 1249 (Fla. 3d DCA 1978) ("[C]areless driving is not a lesser included offense of reckless driving ....”) (footnote omitted)).

      . In Gaber v. State, 684 So.2d 189 (Fla.1996), citing to Dixon, the court held that a defendant may be convicted and punished separately for armed burglary and grand theft of a firearm when the charges stem from the singular act of taking a firearm from within a dwelling.


author: PER CURIAM.

text:
    Tony Lamont SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4366.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 2011.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Tony Sanders was convicted of attempted burglary of a dwelling with a battery, contributing to the delinquency of a minor, and battery. On appeal, he correctly argues that double jeopardy principles preclude his convictions for both attempted burglary with a battery and battery. We reject the State’s argument that both convictions should be upheld because the jury could have found that Sanders committed two separate batteries. Where, as in the instant case, it is impossible to tell from the verdict form if the jury found that the defendant had committed two distinct batteries or only a single battery, the verdict must be read in a manner that would give the benefit of the doubt to the defendant. See Young v. State, 43 So.3d 876 (Fla. 5th DCA 2010); Partch v. State, 43 So.3d 758 (Fla. 1st DCA 2010); Torna v. State, 742 So.2d 366 (Fla. 3d DCA 1999). Accordingly, we vacate the conviction of (simple) battery.

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

TORPY, LAWSON and EVANDER, JJ., concur.


text:
    STATE of Florida, Appellant/Cross Appellee, v. Shannon Donesha GRAYSON, Appellee/Cross Appellant.
    No. 5D10-2841.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellant/Cross Appellee.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellee/Cross Appellant.
   PER CURIAM.

The sole issue in this appeal is whether the trial court erred in granting post-conviction relief to the appellee, Shannon Grayson, in the form of a new trial on the basis that his trial counsel was ineffective. We remand this case to the trial court to make a determination regarding whether the defense attorney’s purported ineffective assistance actually prejudiced the defense.

In order to demonstrate ineffective assistance of trial counsel under rule 3.850, Florida Rules of Criminal Procedure, a criminal defendant must show specific acts or omissions of counsel that were so serious that the attorney was not functioning as counsel guaranteed to the defendant by the Sixth Amendment of the Constitution of the United States. In order to be entitled to relief, however, the defendant must further establish prejudice by showing that there is a reasonable possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Connor v. State, 979 So.2d 852 (Fla.2007) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Here, the trial court clearly made a determination that trial counsel’s efforts were deficient, and that holding is supported by sufficient evidence. More specifically, the court concluded that Mr. Grayson’s defense counsel failed to call alibi witnesses, and that the failure to do so was deficient. What the trial court did not do was to make a determination of prejudice before ordering a new trial. When the trial court examined the prejudice prong of Strickland, it stated only that it did not know if in fact the “outcome” would have been different if the alibi witnesses would have been known and could have testified at trial.

Before post-conviction relief can be granted based on inadequacy of trial counsel the trial court must make a ruling on the prejudice prong of Strickland. It did not do so. Accordingly, we reverse this case and remand to the trial court to enable it to make the necessary ruling.

REVERSED and REMANDED with instructions.

GRIFFIN, MONACO and COHEN, JJ., concur.


author: DAMOORGIAN, J.

text:
    Lincoln JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2764.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.

      Franklin Prince of Franklin Prince, Esquire, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Appellant, Lincoln Jackson, timely appeals his judgment and sentence for conspiracy to traffic in oxycodone. Jackson was charged by amended information with trafficking in oxycodone, conspiracy to traffic in oxycodone, and possession of marijuana less than twenty grams. A jury found him not guilty of trafficking in oxy-codone, but guilty of conspiracy to traffic in oxycodone and possession of marijuana less than twenty grams. On appeal, Jackson argues that there was no evidence of his participation in any prior activity regarding the drug transaction sufficient to establish an agreement to traffic in oxyco-done. We agree and reverse his conviction and sentence for conspiracy to traffic in oxycodone. Finding this issue disposi-tive, we do not address his second point on appeal regarding the trial court’s denial of his motion to arrest judgment. As Jackson raises no issue on appeal with his conviction and sentence for possession of marijuana, we affirm that conviction and sentence without discussion.

At trial, the following evidence was adduced. In September of 2009, the police engaged in an undercover drug operation to purchase fifty oxycodone pills. Through a series of events, which are not relevant to our decision and did not involve Jackson, the police were led to the parking lot of an apartment building where the drugs were to be delivered to a courier in exchange for money provided by an undercover officer. The courier was then to return to a predetermined location and transfer the drugs to the undercover officer. The courier entered the parking lot, which was under surveillance by two police officers positioned in the northern section of the lot. The officers observed a Chevrolet back into a parking space at the southern end of the lot. Next, they observed co-defendant Junior Julien, the driver of the Chevrolet, exit the vehicle and meet with the courier behind a wall at the corner of the apartment building. The wall surrounded the apartment building. At that point the drugs were delivered in exchange for payment. The transaction between the courier and Julien took less than one minute.

While Julien was meeting with the courier to complete the delivery, one of the surveilling officers observed Jackson exit the same Chevrolet. After exiting the vehicle, Jackson repeatedly looked up and down the street.

The other surveilling officer observed Julien exit the driver’s seat of the vehicle and walk with the courier towards the apartment building. He also observed Jackson exit the vehicle, walk towards the back of the vehicle and while facing east, begin constantly looking around the area. The drug transaction occurred on the west side of the parking lot. After observing Jackson for close to a minute, Jackson stopped looking around when Julien started walking back towards the car, at which point both got back into the vehicle at the same time. Neither officer observed any communication between Jackson and Ju-lien.

A third officer positioned across the street in another parking lot observed Jackson walk to the rear of the vehicle and stand by the wall looking up and down the street. This officer testified, “I think he went to urinate, but then he kept looking up and down the street, was ... focusing his attention up and down the street....” He also testified that there was “no doubt in my mind, he was looking out.”

After the transaction Julien drove the Chevrolet several blocks to a driveway, got out of the vehicle and entered a Ford Explorer. At this point, a third occupant of the Chevrolet, co-defendant Betsy Dieu-juste, emerged and moved to the driver’s seat of the Chevrolet, and she and Jackson drove away. Dieujuste and Jackson were stopped shortly thereafter and arrested. Jackson was searched, but no investigatory money was found in his possession. The police found four-hundred dollars in Dieujuste’s purse, which matched the investigatory funds provided by the undercover officer to the courier to buy the pills from Julien. When the police arrested Julien, they found one-hundred and fifty dollars in his possession, which also matched the investigatory funds used in the transaction at issue.

The courier told the police she bought the pills from Julien, but did not give the police any information that Jackson was involved. The plan was for Julien to deliver the pills to her at her apartment building after the undercover officer arrived with the money for the pills. The courier testified that she had no communication with Jackson and there was no agreement with him to get pills. During police questioning, Jackson stated that his friend Dieujuste came by to pick him up, that he did not know Julien, and he had exited the vehicle to urinate.

Relevant to this appeal, Jackson moved for judgment of acquittal on the conspiracy charge, and the trial court denied the motion. After the jury found Jackson guilty of conspiracy to traffic in oxycodone, he made a motion for arrest of judgment and/or new trial, arguing there was insufficient evidence to sustain a conviction for conspiracy to traffic in oxycodone. The trial court also denied this motion.

“A de novo standard of review applies in reviewing a motion for judgment of acquittal.” Richards v. State, 37 So.3d 925, 926 (Fla. 4th DCA 2010) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). In moving for a judgment of acquittal, a defendant admits not only the facts in evidence, but also every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence. Id. at 926 (citation omitted). “A court should grant a motion for judgment of acquittal only if ‘the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.’ ” Id. at 926 (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)).

Jackson argues that the evidence presented by the State of his behavior in the parking lot is insufficient to establish an implied agreement to traffic in oxycodone.

“A conspiracy exists where there is an express or implied agreement between two or more persons to commit a criminal offense, and an intention to commit the offense.” Schlicher v. State, 13 So.3d 515, 517 (Fla. 4th DCA 2009) (citing Leigh v. State, 967 So.2d 1102, 1104 (Fla. 4th DCA 2007) and Pino v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991)). Direct proof of an agreement is not necessary as an agreement may be inferred from the surrounding circumstances. Id. (citations omitted). The district courts have generally sustained convictions for conspiracies to buy or sell drugs where the “defendants are involved in a series of meetings, arrangements and negotiations to sell or buy illegal drugs that lead to such sale or purchase.” Id. (citations omitted). However, when the evidence establishes “that the defendant was merely present at the scene of the crime, had knowledge of the crime, or even aided others in the commission of the crime,” it is inadequate, without more, to sustain a conspiracy conviction. Young v. State, 940 So.2d 543, 544 (Fla. 5th DCA 2006); see also Honchell v. State, 257 So.2d 889 (Fla.1971); Voto v. State, 509 So.2d 1291 (Fla. 4th DCA 1987).

In Pino, the Third District noted:

Only where ... the defendant’s involvement in the enterprise appears to be minimal at best, evincing no prearrange-ments with the other defendants, see Pennington v. State, 526 So.2d 87 (Fla. 4th DCA 1987), approved, 534 So.2d 393 (Fla.1988); Voto v. State, 509 So.2d 1291 (Fla. 4th DCA 1987), or where, ... the defendant has been acquitted of an accompanying drug trafficking charge, thereby discrediting much, if not all of the evidence against the defendant, see, e.g., Jimenez v. State, 535 So.2d 343 (Fla. 2d DCA 1988); Ashenoff v. State, 391 So.2d 289 (Fla. 3d DCA 1980), have Florida courts been inclined to reverse such conspiracy convictions. Indeed, the typical drug trafficking transaction involving a series of clandestine meetings between several defendants and an undercover police officer which eventually leads to a sale or purchase of illegal drugs, as here, presents the classic example of a criminal conspiracy; by definition, such a scenario inferentially establishes, as a general rule, a prior agreement among the defendants to effect a sale or purchase of illegal drugs, else such a sale or purchase with its complicated arrangements would never have taken place.

Pino, 573 So.2d at 152.

This case is strikingly similar to the events described in Voto where we held that “although there was substantial proof of participation in the crime [of trafficking in cocaine as an aider and abettor], there was insufficient evidence of participation in any underlying understanding or agreement.” Voto, 509 So.2d at 1293 (citations omitted). In Voto, we concluded that the trial court erred in denying defendant’s motion for judgment of acquittal as to the conspiracy charge. Id.

Such is the case here. The State proved that Jackson arrived to a location where a pre-arranged drug deal was to take place. After arriving he acted in a manner consistent with a look-out. Jackson left the location at the same time as Julien after the deal had taken place. As Jackson points out, the State offered no evidence of a prior agreement in support of the charge of conspiracy. At trial, all that was proven was that Jackson was present when the transaction occurred and may have acted as a lookout, which is insufficient to establish any implied agreement to traffic in oxycodone. For example, there was no evidence of telephone conversations or meetings between Jackson and the courier concerning a drug deal or evidence of any plan between Jackson and Dieujuste or Jackson and Julien. In addition, the officers did not observe any conversation between Jackson and Julien on the date of the transaction. Finally, Jackson was acquitted of the accompanying drug trafficking charge. Thus, although there may be proof of participation, there was no proof evidencing an understanding or agreement. See Voto, 509 So.2d at 1293. Accordingly, we reverse his conviction and sentence for conspiracy to traffic in oxycodone and remand for entry of a judgment of acquittal on that count.

Reversed and Remanded.

WARNER and GERBER, JJ., concur.


text:
    Courtney WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3959.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Courtney Wright, Bonifay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice for appellant to file, within sixty days of this opinion, an amended 3.850 motion if he can allege in good faith that he would not have entered the plea if he had known that his plea constitutes an admission of actual possession of a firearm and that the mandatory minimum applies only to actual possession.

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


text:
    Stephen HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1330.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Stephen Harris, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the circuit court’s denial of his Florida Rule of Criminal Procedure 3.850 motion alleging ineffective assistance of counsel. We reverse for further review of the defendant’s first argument, and affirm without comment as to the remaining arguments.

In his first argument, the defendant alleged that trial counsel was ineffective for failing to file a motion to suppress evidence. At issue is whether the defendant’s “girlfriend” had common authority to consent to the officers’ entry into the apartment. Cf. Ferguson v. State, 58 So.3d 360 (Fla. 4th DCA 2011) (the state proved that the defendant’s girlfriend had common authority over the apartment so that her consent for the police to enter the premises validated their presence in the apartment). On this argument, the defendant stated a legally sufficient claim for relief, and the record before this court does not conclusively refute the claim. Accordingly, we reverse as to this claim only. On remand, the trial court shall either attach those portions of the record which conclusively refute the claim or shall conduct an evidentiary hearing to determine whether the defendant’s counsel was ineffective for failing to file a motion to suppress.

Affirmed in part, reversed in part, and remanded.

CIKLIN, GERBER and LEVINE, JJ„ concur.


author: STEVENSON, J.

text:
    Milagro CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2737.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Milagro Cunningham was tried by jury and convicted of attempted second-degree murder, a lesser-included offense of the charged attempted first-degree murder (count I); kidnapping a child under thirteen years of age (count II); three counts of sexual battery on a child under twelve years of age (counts III, IV and V); and aggravated child abuse (count VI). In rendering its guilty verdict, the jury rejected the defendant’s insanity defense. Following his conviction, the defendant was sentenced to fifteen years for count I, to life for counts II, III, IV, and V, and to thirty years for count VI.

The defendant raises five issues on appeal directed to his conviction: an evi-dentiary ruling concerning the defendant’s neuropsychologist; the denial of his motion to suppress statements to police; improper comments by the prosecutor during closing arguments; the trial court’s refusal to permit defense counsel to make the final argument to the jury; and the giving of the standard jury instruction for the lesser-included offense of attempted manslaughter in light of Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), aff'd, 39 So.3d 252 (Fla.2010). We affirm as to each of these issues and write briefly to address the Montgomery issue. In Montgomery, the First District held intent to kill is not an element of manslaughter and, where the defendant was convicted of second-degree murder, it was fundamental error to instruct the jury, in accordance with the then-standard manslaughter instruction, that the State was required to prove the defendant “intentionally caused [the victim’s] death.” 70 So.3d at 607. The rationale is that the instruction would be understood by the average juror to require the defendant to have the intent to kill the victim. These holdings were affirmed by our supreme court. See Montgomery, 39 So.3d at 257. In Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011), this court refused to extend Montgomery to the circumstance where the defendant was charged with attempted first-degree murder, but convicted of attempted second-degree murder, and the jury was given the standard instruction for attempted manslaughter. See also Fenster v. State, 61 So.3d 465 (Fla. 4th DCA 2011); Sessions v. State, 59 So.3d 1208 (Fla. 4th DCA 2011); Mansfield v. State, 41 So.3d 410 (Fla. 4th DCA 2010). In light of Williams, we affirm as to the issue raised, but note that there is a conflict among of the district courts of appeal and that Williams is currently on review in the supreme court. See Williams, 64 So.3d at 1262.

The defendant also challenges his sentences, arguing that the trial court im-permissibly considered premeditation, conduct for which he was acquitted by virtue of the conviction for the lesser offense of attempted second-degree murder, and that the life sentences imposed for counts II, III, IV and V must be reversed in light of Graham v. Florida, — U.S. —, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We reject the first of these claims, but find merit in the Graham argument. In Graham, the Supreme Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 130 S.Ct. at 2034. The defendant was seventeen years old at the time of the commission of his crimes and, despite the State’s argument to the contrary, he did not commit a homicide. See McCullum v. State, 60 So.3d 502, 503-04 (Fla. 1st DCA) (finding attempted second-degree murder is a nonhomicide offense under Graham), review denied, 67 So.3d 1050 (Fla.2011); Manuel v. State, 48 So.3d 94, 97 (Fla. 2d DCA 2010) (explaining that, for the purposes of Graham, “simple logic dictates that attempted murder is a nonhomicide offense because death, by definition, has not occurred”), review denied, 63 So.3d 750 (Fla.2011). We agree with the reasoning in both McCullum and Manuel. Accordingly, the life sentences imposed for counts II, III, IV and V are reversed, and we remand for resentencing.

Affirmed in Part; Reversed in Part; and Remanded.

MAY, C.J., and CIKLIN, J., concur.


author: CONNER, J.

text:
    James Henry ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3328.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

James Henry Robinson appeals the revocation of his probation and the sentence imposed for the violation. He contends insufficient evidence was presented to prove he violated probation by committing new crimes. Finding his arguments on appeal are without merit, we affirm.

Robinson pled no contest to grand theft and carrying a concealed weapon. He was subsequently placed on eighteen months of community control and six months of probation, which required Robinson to “live and remain at liberty without violating any law.” During Robinson’s term of probation, an affidavit of violation of probation was filed, alleging that he committed five new offenses: three counts of aggravated assault, one count of discharging a firearm in public, and one count of possession of a firearm by a convicted felon.

During Robinson’s probation violation hearing, the State presented testimony of an eyewitness (“T.R.”) to Robinson’s newly charged offenses. T.R. testified that because of his marijuana use and the long period of time since the events in controversy, he did not recall identifying Robinson on the day of the incident. He agreed that the written statement offered to refresh his memory was written in his handwriting and marked with his initials; however, reading this statement did not refresh his memory as to his identification of Robinson. Subsequently, Officer J.G. testified that T.R. verbally identified Robinson as the perpetrator during a show up shortly after the crime. He further testified that T.R. gave a written statement in which he identified Robinson as the perpetrator of the crimes.

Relying on Madry v. State, 969 So.2d 507 (Fla. 1st DCA 2007), Robinson argues that T.R.’s lack of memory at trial constituted a “recantation” of his prior statement that he identified Robinson as the perpetrator of the new crimes, thus his prior identification was legally insufficient to support a probation revocation. However, the facts of Madry and the facts at hand are highly distinguishable. In Ma-dry, the victim denied that he made the written statement. Id. at 508. Here, T.R. never recanted his prior verbal or written statement of identification; he merely could not remember what the statement was or identifying Robinson. “The fact that a witness once stated something was true is not logically inconsistent with a subsequent loss of memory.” James v. State, 765 So.2d 763, 766 (Fla. 1st DCA 2000) (quoting with approval State v. Staley, 165 Or.App. 395, 995 P.2d 1217, 1220 (2000)). Moreover, under Section 90.801(2)(c), Florida Statutes, a statement of identification is not hearsay. Davis v. State, 52 So.3d 52, 54 (Fla. 1st DCA 2010) (hearsay exception applies if the declarant was an eyewitness or a victim who identified the alleged perpetrator soon after the event in controversy or soon after coming into contact with him or her). As stated by our court in Stanford v. State, 576 So.2d 737 (Fla. 4th DCA 1991):

Both the testimony of the person having made the identification and of witnesses who were present when the identification was made are admissible. The official comments to section 90.801 note that such statements bear the mark of reliability because they are usually made in close temporal proximity to the actual event while the witnesses’ visual memory of the event is fresh.
We believe that the typical situation contemplated by the code and the case law is one where the victim sees the assailant shortly after the criminal episode and says, “that’s the man.” Hence, the phrase “identification of a person made after perceiving him” refers to the witness seeing a person after the criminal episode and identifying that person as the offender.

Id. at 739-40. (emphasis added) (footnote omitted.) See also Liscinsky v. State, 700 So.2d 171, 172 (Fla. 4th DCA 1997) (officer could testify under section 90.801(2) that a witness to a crime identified the accused by name, as the perpetrator at the initial investigation immediately following the incident). Therefore, the trial court was correct in admitting the testimony of Officer J.G. that T.R. made prior out-of-court statements, verbal and written, identifying Robinson as the perpetrator. We agree with the trial court: the violation was based on both a “hearsay and non hearsay identification [ ] that Mr. Robinson was the one who fired the gun.” Therefore, the Madry argument has no merit, and we affirm the trial court’s holding.

The trial court made the determination that Robinson willfully, materially, and substantially violated his probation by committing two of the five new charges alleged in the affidavit of violation of probation (one count of aggravated assault and one count of discharging a firearm in public). However, no formal, written order was entered specifying which conditions of the probation agreement were violated. “If a trial court revokes a defendant’s probation, the court is required to render a written order noting the specific conditions of probation that were violated.” King v. State, 46 So.3d 1171, 1172 (Fla. 4th DCA 2010). If a formal, written order does not exist, it is appropriate to “remand for entry of a proper order.... ” Cato v. State, 845 So.2d 250, 251 (Fla. 2d DCA 2003). Even though the record is clear, a formal, written order specifying each condition of probation violated must be entered in this case. Therefore, we remand for entry of an order in conformity with this opinion.

Robinson also argues that because the trial court granted a judgment of acquittal for the assault count, having the same assault count serve as a basis for a violation is improper. We find no merit to this argument.

Affirmed and remanded with directions.

MAY, C.J., and TUTER, JACK B., JR., Associate Judge, concur.


author: KELLY, Judge. VILLANTI, J., DAVIS, Judge,

text:
    Emerson J. PINKNEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-6022.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2011.

      James Marion Moorman, Public Defender, and Frederick W. Vollrath, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Emerson J. Pinkney was charged with and convicted of aggravated assault on a law enforcement officer, resisting or obstructing an officer without violence, and fleeing or eluding a law enforcement officer at a high speed or with wanton disregard for the safety of persons or property. He appeals only his judgment and sentence for aggravated assault on a law enforcement officer. He challenges the denial of his motion for judgment of acquittal. Because the State produced sufficient evidence to permit a jury to find that Mr. Pinkney intentionally drove his car in a manner that put the officer in fear of imminent harm, we affirm. We write, however, to clarify the law on assault and to recede from our previous decision in State v. Shorette, 404 So.2d 816 (Fla. 2d DCA 1981), on which Mr. Pinkney relies.

The record shows that Mr. Pinkney’s encounter with the police began around eleven o’clock in the morning when two officers sighted a parked Chevy Malibu that they believed matched the description of an automobile that was the subject of a BOLO. Officer Zammitt, the officer Mr. Pinkney was charged with assaulting, described his initial encounter with Mr. Pink-ney as follows:

Q. Did you attempt to make contact with the passengers of the vehicle?
A. It was one black male in a red shirt and black pants who was getting into the passenger side of the vehicle when I ordered him down at gunpoint.
Q. Could you see how many other people where [sic] in the vehicle?
A. Yes, ma’am.
Q. And how many were there?
A. One.
Q. What happened when the passenger exited the vehicle; what happened after he left the vehicle?
A. I ordered him down on the ground. He began to get down on the ground when the reverse lights came on the Chevy Malibu.
Q. The reverse lights came on?
A. Yes, ma’am.
Q. And how far away were [you] from the car when the reverse lights came on?
A. Approximately five to ten feet.
Q. What happened after the reverse lights of the Malibu came on?
A. He began to back up at a high rate of speed.
Q. Where were you located in relation to the vehicle when it began to back up?
A. I was standing not directly behind the vehicle. I was [off] to the right-hand side, and I was still holding the passenger at gunpoint. At that point the vehicle backed up and went directly right at me.
Q. Did you have to take any action to avoid being hit by the vehicle?
A. Yes, ma’am. Actually, I wouldn’t say jump out of the way, I had to get out of the way in a hurry to avoid being struck.
Q. Did you feel like you were going to be struck by that car?
A. If I did not move, yes, absolutely.
Q. Were you afraid that that car was going to hit you?
A. Yes, ma’am.
Q. And you stated that when it began backing up, it went directly towards you?
A. Yes.

On cross-examination, the defense elicited the following testimony:

Q. You stated initially after you had gotten the passenger down on the ground, you and your partner ... saw the reverse lights come on. Where were you in relation to the vehicle?
A. I was off behind the vehicle up off to the right-hand side with the passenger getting his hands on the ground when [his] lights came on.
Q. Okay. And you said it startedf] coming back at very quick speed?
A. Yes, ma’am.
Q. But you had time to get out of the way?
A. Yes, ma’am.
Q. Quickly?
A. Yes, ma’am.
Q. How close did it come to you?
A. Very close.
Q. How close?
A. At the time it came very close. That is why I felt for my safety. I had to jump out of the way.

Officer Knick, who accompanied Officer Zammitt, testified that while this was occurring he was approaching the driver’s side of the car. He stated that he was seven to eight feet from the rear of the car and that Officer Zammitt was “much closer” — five to six feet — when the “vehicle went into reverse and started to speed backwards” toward Officer Zammitt. The driver then began going forward, eventually striking the front bumper of a second police car that had arrived at the gas station. As the car was moving forward toward the second police car, Officer Zam-mitt and Officer Knick ran up to the car and unsuccessfully attempted to open the doors. Each one then used his baton to smash out the windows on the driver and passenger sides of the car. Officer Zam-mitt testified that at this point he pulled out his gun and commanded the driver to stop; however, the driver continued out of the gas station parking lot. The ensuing high speed chase ended when the car crashed into a ditch. The driver then ran from the car, entered a nearby apartment, jumped out a back window, and fled into the woods. The police were not able to locate him that day, but they did collect blood samples from the car and the apartment that were later identified as belonging to Mr. Pinkney.

At his trial, Mr. Pinkney moved for a judgment of acquittal on the aggravated assault charge arguing that the State had not proved he had the specific intent to do violence to the victim. The trial court denied Mr. Pinkney’s motion. On appeal, Mr. Pinkney contends this was error because the State did not prove he had the specific intent to do violence to the victim, which he argues is an element of the crime of assault. Although Mr. Pinkney’s argument correctly reflects our holding in Sho-rette, it is not an accurate statement of the law.

In Shorette, the defendant, who admitted drinking intoxicants, was driving a car in excess of the speed limit. 404 So.2d at 817. He failed to negotiate a curve in the road and struck an oncoming automobile, injuring the two occupants of the other vehicle. He was charged with two counts of aggravated assault, which he moved to dismiss, arguing that the State had failed to show that he had the intent necessary to prove the offense. The trial court granted the motion, and the State appealed. Id. This court affirmed and held that to obtain a conviction the State had to prove that the defendant had the intent to do violence to the victims. Id. However, this was a misstatement of the law.

Section 784.011(1), Florida Statutes (2006), defines assault as follows: “An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” In reaching the conclusion that section 784.011 required the State to prove that the defendant had the intent to do violence, Shorette relied on Russell v. State, 373 So.2d 97, 98 (Fla. 2d DCA 1979). 404 So.2d at 817. Russell held that because the battery statute provided that an individual had committed a battery if he “intentionally” struck or touched another person against the victim’s will or “intentionally” caused bodily harm to another, the State was required to prove the defendant had the “intent to” touch, strike, or cause bodily harm to the victim. 373 So.2d at 98. However, in Linehan v. State, 442 So.2d 244, 247 (Fla. 2d DCA 1983) (en banc), approved in result only, 476 So.2d 1262 (Fla.1985), this court receded from Russell, explaining that words such as “willfully” or “intentionally,” without more, indicate the statute “is one that prohibits either a specific voluntary act or something that is substantially certain to result from the act” and they serve to distinguish the act from one done accidentally or negligently.

Thus, for example, where a defendant threw a lighter at the floor and it ricocheted and hit the victim’s ankle, to establish that the defendant intentionally struck the victim, and thus was guilty of battery, the State did not have to prove the defendant intended to strike the victim. C.B. v. State, 810 So.2d 1072 (Fla. 4th DCA 2002). It was sufficient if the State established that the defendant threw the lighter in such a way that it was substantially certain it would hit the victim’s ankle. Id. at 1073. Because the evidence established that the defendant threw the lighter at the floor and that it only hit the teacher “because of a crazy bounce,” the evidence was insufficient to sustain a conviction for battery. Id.

Similarly, the defendant in S.D. v. State, 882 So.2d 447 (Fla. 4th DCA 2004), asserted that the State failed to prove she intentionally hit her mother. The evidence showed that the defendant was angry and was flailing her arms around. She had just finished fighting with her brother and had slapped her sister before hitting her mother. The mother testified that the defendant saw her coming near and continued swinging her arms. Because the description of the manner in which the defendant was swinging her arms made it substantially certain that the mother would be hit, the court concluded the evidence was sufficient to establish battery. Id. at 449. In so holding, the court explained that “[i]t is this substantial certainty of a touching or striking that satisfies the intent element of battery.” Id.

Likewise, in Reynolds v. State, 784 So.2d 509, 511 (Fla. 1st DCA 2001), the court acknowledged that a statute making it a crime to intentionally commit an act against any animal that results in the cruel death or excessive or repeated infliction of unnecessary pain did not require that the State prove that the defendant acted intending to cause a cruel death or excessive or repeated infliction of unnecessary pain. Instead, the State only had to prove that the defendant committed an act that was substantially certain to result in cruel death or excessive or repeated infliction of unnecessary pain. See id. (explaining the statute is one “that prohibits either a specific voluntary act or something that is substantially certain to result from the act”) (quoting Linehan, 442 So.2d at 247)).

Section 784.011(1) requires proof of an intentional threat that creates a fear of imminent violence. Thus, to satisfy the intent element the State must prove that the defendant did an act that was substantially certain to put the victim in fear of imminent violence, not that the defendant had the intent to do violence to the victim. As we explained when we receded from Russell, when a “statute is one that prohibits either a specific voluntary act or something that is substantially certain to result from the act ..., [a] person’s subjective intent to cause the particular result is irrelevant ... because the law ascribes to him a presumption that he intended such a result.” Linehan, 442 So.2d at 247.

Having clarified the elements of the crime of assault, we turn to the question of whether the evidence in this case was sufficient to withstand a motion for a judgment of acquittal. We apply a de novo standard when reviewing a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

Id. (citations omitted). It is undisputed that Mr. Pinkney’s act of backing his car in the direction of Officer Zammitt constituted a threat of violence. Given the proximity of the car to the officer, it was substantially certain that the threat would put Officer Zammitt in fear of imminent violence, and he testified that he was in fact fearful he would be hit by the car. Nevertheless, in addition to citing Shorette, Mr. Pinkney cites Swift v. State, 973 So.2d 1196 (Fla. 2d DCA 2008), in support of his argument that he was entitled to a judgment of acquittal.

Mr. Swift was charged with aggravated assault after he backed his SUV toward a police officer who had run behind the SUV seconds before Mr. Swift began backing up. This court reversed Mr. Swift’s conviction for aggravated assault on a law enforcement officer after concluding that the State had been “unable to establish that Mr. Swift knew that Officer Sweat had run behind the SUV during the minimal amount of time that elapsed after Mr. Swift pulled forward and before he began to back up a second time.” Id. at 1199. We find Swift distinguishable in two respects.

First, the facts in this case are distinguishable. In describing the evidence in Swift, this court explained:

The circumstances surrounding Mr. Swift’s departure from the driveway require closer examination because they form the basis for the aggravated assault charge. Officer Sweat had parked his police cruiser on the driver’s side of the SUV and slightly to its rear. Sergeant Green had parked on the SUV’s passenger side. Thus the SUV was partially blocked in the driveway. When the officers approached the vehicle’s passenger side and began to shout commands, Mr. Swift initially backed up and then pulled forward. This maneuver was apparently necessary for Mr. Swift to position the SUV so that he could back it out of the driveway without striking Officer Sweat’s police cruiser.
After the SUV began to move, both officers drew their handguns. At this point, Officer Sweat was still standing at the rear door on the vehicle’s passenger side. When Mr. Swift pulled forward after initially backing up, Officer Sweat ran behind the SUV. Then, as Mr. Swift began backing up again, Officer Sweat had to step out of the way of the oncoming vehicle to avoid being hit. While Officer Sweat was getting out of the way, Mr. Swift successfully cleared the officer’s police cruiser and backed into the street. At this point, Mr. Swift drove away from the scene.
Officer Sweat and Sergeant Green were the only State witnesses to testify concerning the events that formed the basis for the aggravated assault charge against Mr. Swift. Sergeant Green candidly admitted that when he and Officer Sweat approached the SUV’s passenger side, the entire encounter with Mr. Swift lasted less than thirty seconds. During most of this brief encounter, Officer Sweat had been standing at the SUV’s rear door. After Officer Sweat left his position of relative safety to run behind the SUV when it pulled forward, he could not have been behind the vehicle for more than a few seconds before he was forced to step out of the SUV’s path as it backed up a second time. Under these circumstances, it is not surprising that neither officer could establish that Mr. Swift knew that Officer Sweat had left his position at the SUV’s side and run to its rear.

Id. at 1198. Additionally, this court noted that the encounter occurred at 8:30 in the evening, that the windows on the SUV were tinted, and that the tinting was dark enough to obscure the officers’ view of the passenger in the rear seat. Id. at 1197-98.

Here, rather than suddenly running behind the car, the officer was in the same location relative to the car throughout the encounter. It was daylight and the officer indicated he could see inside the car. The passenger door was open when Officer Zammitt began shouting commands, which the passenger began to obey. Simultaneously, the “reverse lights” on the car illuminated, and the car began to back up in Officer Zammitt’s direction at a high rate of speed. Given all these circumstances, we conclude that a jury could reasonably find that Mr. Pinkney knew Officer Zammitt was behind his car and that Mr. Pinkney was attempting to escape the same fate as his passenger by throwing the car in reverse and leaving the scene as quickly as possible.

Second, unlike the defendant in Swift, the focus of Mr. Pinkney’s argument has been his lack of intent to harm the officer, not a claim that he was unaware that the officer was behind his car. The dissent erroneously states that Mr. Pinkney’s hypothesis of innocence was that he did not see Officer Zammitt. At trial, Mr. Pink-ney argued generally that this was a case of mistaken identity. Specifically with respect to the assault charge, Mr. Pinkney argued that the State’s evidence did not prove he intended to hit the officer, just that he was trying to leave and was frightened because the officer had his gun drawn:

That vehicle accelerated back, as he said, at such a high speed, it would have hit. He wouldn’t have been able to get out to the way. The vehicle, the driver of that vehicle, had no intention of hitting the officer. The driver of that vehicle was a juvenile. The driver of that vehicle was scared. That officer has a gun drawn on the other man that was in that vehicle. It was that instinctual thing that we all have as human beings, especially young children have, 16-year-old children in spite of flight, [sic]
So the officer is testifying he came at him with intent. That’s not what happened. If there was intent to hit that officer, that officer would have [been] hit [at] such a short distance.

On appeal, he has argued that just because he had to reverse his vehicle in order to exit the gas station parking lot, it did not mean he had “the specific intent to do violence” to the person of Officer Zammitt. In his brief, he concedes that he attempted to leave because he did not want to be apprehended. However, Mr. Pinkney’s motive for reversing and backing up toward Officer Zammitt is immaterial.

The trial court correctly denied Mr. Pinkney’s motion for judgment of acquittal and submitted the case to the jury. Accordingly, we affirm Mr. Pinkney’s judgment and sentence for aggravated assault with a deadly weapon on a law enforcement officer. We recede from Shorette and all similar cases to the extent they are based on the erroneous language in Sho-rette.

Affirmed.

ALTENBERND, WHATLEY, CASANUEVA, LaROSE, KHOUZAM, CRENSHAW, MORRIS, and BLACK, JJ., Concur.

VILLANTI, J., Concurs specially with opinion.

DAVIS, J., Dissents with opinion, in which SILBERMAN, C.J., and NORTHCUTT and WALLACE, JJ., Concur.

VILLANTI, J.,

Concurring specially.

I concur in that portion of both the majority and dissenting opinions that recedes from our prior decision in State v. Shorette, 404 So.2d 816 (Fla. 2d DCA 1981). I take no position on the remainder of the issues raised, believing them best left to the assigned panel.

DAVIS, Judge,

Dissenting.

Because the State did not establish that Mr. Pinkney intentionally and unlawfully threatened to do violence to Officer Zam-mitt, I would reverse. The evidence simply did not show that Mr. Pinkney knew or likely knew that Officer Zammitt was standing in his direction of travel. But I do agree with the majority to the extent that it recedes from Shorette, 404 So.2d at 817, based on that case’s misstatement of law that section 784.011(1) “requires proof of a specific intent to do violence to the person of another.” See generally Cambell v. State, 37 So.3d 948, 950 (Fla. 5th DCA 2010) (“The only intent inherent in the statute! ] is the intention to make a threat to do violence.”).

Additionally, I recognize that in Swift, 973 So.2d 1196, this court reiterated Shorette’s misstatement of the intent requirement of assault. However, as the Fifth District appropriately noted in Cambell, the actual analysis in Swift is legally sound despite any misuse of the Shorette language. The Cambell court noted that

the focus of the appellate court [in Swift ] was on whether or not there was evidence that Swift intended to threaten the victim.... Since the appellate court concluded that there was no evidence that Mr. Swift knew that the victim was behind his vehicle before he started to back up in the victim’s direction, its holding was that the State failed to prove that Mr. Swift intended his act of backing the car to be a threat to do violence to the victim.

37 So.3d at 950. Applying this analysis in the instant case, I conclude that the State’s evidence here similarly failed to establish that Mr. Pinkney’s act of reversing his vehicle was an intentional, unlawful threat to do violence to Officer Zammitt. Accordingly, I would reverse Mr. Pinkney’s judgment and sentence.

While there are differences between the facts in Swift and the instant case, I con-elude that a review of the totality of the circumstances in both cases necessarily results in the same conclusion of law — that the State failed to present prima facie evidence of the elements of an assault.

To obtain a conviction on a charge of aggravated assault, the State must prove the basic elements of an assault as set out in section 784.011. See Benitez v. State, 901 So.2d 935, 937 (Fla. 4th DCA 2005). “An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1). This requires the State to prove three elements: “(1) an intentional, unlawful threat; (2) an apparent ability to carry it out; and (3) creation of a well-founded fear that the violence is imminent.” Benitez, 901 So.2d at 937. In this case, it is the intentional threat that I believe the State’s evidence fails to sufficiently prove. Based on the record evidence, I disagree with the majority opinion for three reasons.

First, I disagree with the majority’s conclusion that the jury could infer from the circumstances that Mr. Pinkney saw Officer Zammitt or otherwise knew he was in the path of the vehicle. The State presented no direct evidence of this fact. There was no testimony that Officer Zam-mitt engaged Mr. Pinkney in any way prior to the vehicle beginning to move, and there was no evidence establishing that Mr. Pinkney was aware that Officer Zam-mitt was in the travel path of the vehicle. Although the incident occurred in daylight, the limited evidence of Mr. Pinkney’s knowledge was Officer Zammitt’s testimony. Officer Zammitt was engaged with the passenger and was to the right side of the vehicle but was able to see a person inside the vehicle. This testimony is purely circumstantial evidence of Mr. Pinkney’s knowledge.

Where, as here, the evidence of the defendant’s guilt is entirely circumstantial, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. State v. Law, 559 So.2d 187, 188 (Fla.1989). This is so regardless of how strongly the evidence may suggest the defendant’s guilt. Id. To be sure, the question of whether the evidence fails to exclude all reasonable hypotheses of innocence ultimately is for the jury, and a conviction that is supported by substantial, competent evidence will not be reversed. Jackson v. State, 995 So.2d 535, 539 (Fla. 2d DCA 2008) (citing Law, 559 So.2d at 188). But if the State does not offer evidence that is inconsistent with the defendant’s hypothesis, “ ‘the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.’ ” Law, 559 So.2d at 189 (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)).

Bennett v. State, 46 So.3d 1181, 1183 (Fla. 2d DCA 2010) (alteration in original).

It may be true, as the State argues, that the fact that Officer Zammitt saw someone inside the vehicle could suggest that Mr. Pinkney in turn saw the officer outside the vehicle. However, the totality of the circumstances supports Mr. Pinkney’s reasonable hypothesis of innocence that he did not see Officer Zammitt, that he therefore did not intentionally drive his vehicle in the direction of Officer Zammitt in an attempt to threaten the officer, and that instead he intentionally drove the vehicle in reverse in an attempt to flee the scene and escape Officer Knick, who was approaching his driver’s side door. There is nothing in the record to suggest that Mr. Pinkney turned his head toward Officer Zammitt or that Officer Zammitt made eye contact with Mr. Pinkney. In fact, Officer Knick, who arrived with Officer Zammitt, testified that while Officer Zammitt dealt with the passenger on the passenger’s side of the vehicle, it was Officer Knick who was “making contact with the driver’s side.” From this testimony, it could be logically inferred that Mr. Pinkney’s attention was on Officer Knick and not Officer Zammitt. Even if Mr. Pinkney heard Officer Zammitt giving orders to the passenger who had just exited the vehicle, no evidence established that Mr. Pinkney knew that Officer Zammitt was behind the vehicle or in its path of travel. Indeed, no evidence established that Mr. Pinkney heard Officer Zammitt. Based on the totality of these circumstances, I conclude that from the State’s evidence the jury could not infer Mr. Pinkney’s knowledge that Officer Zammitt was in the path of travel and that therefore the State did not refute Mr. Pinkney’s reasonable hypothesis of innocence.

Second, even if the State’s evidence was sufficient to sustain the inference that Mr. Pinkney knew Officer Zammitt was somewhere nearby, I conclude that the State’s evidence was insufficient to establish that Mr. Pinkney intended to threaten Officer Zammitt by driving his vehicle in the officer’s direction.

A case presenting direct evidence of someone’s intent is rare, and as such, it is proper and commonly the case for the State to rely solely on circumstantial evidence to establish intent in the absence of direct evidence. State v. Waters, 436 So.2d 66, 71 (Fla.1983) (“The element of intent, being a state of mind, often can only be proved by circumstantial evidence.”). The present case turns on such circumstantial evidence.

I agree with the majority that if the State had shown that Mr. Pinkney intentionally did an act that was “substantially certain” to threaten Officer Zammitt, such would provide sufficient circumstantial proof to allow the jury to infer Mr. Pinkney’s intent. Cf. C.B., 810 So.2d at 1073. In C.B., a minor was charged with battery as the result of his throwing a cigarette lighter on the floor and the lighter bouncing up and striking a school official. In determining whether these circumstances supported the intent element of the battery charge, the court determined that the State was required “to prove that the defendant threw the lighter in such a way that it was substantially certain that it would hit the teacher’s ankle.” Id. at 1073. The court concluded that “[t]he evidence of the defendant’s intent was circumstantial. The evidence was insufficient to sustain a conviction[ ] because it was consistent with the reasonable hypothesis of innocence that the defendant threw the lighter at the floor and hit his teacher only because of a crazy bounce.” Id.

Similarly, the only evidence here of Mr. Pinkney’s intent consisted of the facts that he drove his car in reverse and that the officer had to move out of the way of the vehicle. However, as I previously stated, that evidence is equally consistent with the reasonable hypothesis that Mr. Pinkney was simply trying to flee the situation. The evidence did not show that Mr. Pink-ney knew that Officer Zammitt was in — or was substantially certain to be in — the path of travel. Accordingly, I conclude that the evidence is insufficient to show that Mr. Pinkney intended to drive his vehicle in the officer’s direction for the purpose of threatening the officer.

Third, I conclude that the State’s evidence is also insufficient to sustain a conviction for assault because any inference that Mr. Pinkney intentionally threatened Officer Zammitt by driving at him would have to be based on the inference that Mr. Pinkney knew where Officer Zammitt was located. In other words, under these circumstances, any inference of intent would have to be based on an inference of fact. This is an impermissible stacking of inferences. See Miller v. State, 770 So.2d 1144, 1149 (Fla.2000) (“ ‘Circumstantial evidence is insufficient when it requires pyramiding of assumptions or inferences in order to arrive at the conclusion of guilt.’ ” (quoting Brown v. State, 672 So.2d 648, 650 (Fla. 4th DCA 1996))).

It is on this third point that I specifically disagree with the majority as to the application of the law to these facts. As the majority correctly concludes, the statute requires “proof of an intentional threat that creates a fear of imminent violence.” The majority suggests that the evidence in our record is sufficient to allow a reasonable inference that Mr. Pinkney knew the officer’s location when he began to drive the car in reverse. The majority then concludes that based on Mr. Pinkney’s knowledge of the officer’s location, it can be inferred that Mr. Pinkney’s act of driving in that direction is proof of his intent to commit an act that was substantially certain to place the officer in fear of imminent danger. What the majority does not acknowledge, however, is that the evidence that allows the jury to infer an “intentional threat” is circumstantial evidence presented to prove intent, not direct proof of that intent. See C.B., 810 So.2d at 1073. Thus, the majority’s analysis calls for the inference of Mr. Pinkney’s intent to be imper-missibly stacked on the inference of his knowledge of the officer’s location.

Accordingly, I disagree with the majority on three grounds. First, the evidence does not support the inference that Mr. Pinkney knew that Officer Zammitt was located in the path of his vehicle. Second, the evidence does not support the inference that Mr. Pinkney intended to threaten the officer by committing an act — driving at him — that was substantially certain to place the officer in fear. And third, the only way for the jury to find the necessary intent to threaten is by impermissibly stacking inferences. For these reasons, I conclude that the trial court erred in denying Mr. Pinkney’s motion for judgment of acquittal as to the assault on a law enforcement officer charge, and I would reverse his judgment and sentence on that count.

SILBERMAN, C.J., and NORTHCUTT and WALLACE, JJ., Concur.

      . The crime Shorette describes is essentially an attempt to commit a battery, which is how the common law defined the crime of assault. At common law, an attempt to commit any crime was a misdemeanor, and the misdemeanor was referred to simply as an attempt to commit the particular crime. Rollin M. Perkins, Non-Homicide Offenses Against the Person, 26 B.U. L. Rev. 119, 132-33 (1946). However, the crime of attempted battery had its own name, "assault,” because the law of assault developed long before the law of criminal attempts. Id.; see generally 2 Wayne R. LaFave, Substantive Criminal Law, § 11.2 (2d ed. 2003). To constitute the common law crime of assault, the victim did not have to be aware of the attempted battery. Perkins, 26 B.U. L. Rev. at 133; see also McCullers v. State, 206 So.2d 30, 33 (Fla. 4th DCA 1968), disapproved by State v. White, 324 So.2d 630, 631 (Fla.1975). On the other hand, a civil assault occurred at common law when an unlawful application of force to a person was attempted or threatened if the victim was aware of the attempt and placed in apprehension of an imminent battery. Perkins, 26 B.U. L. Rev. at 132-33. The criminal and the civil common law definitions of assault are still reflected in the various states' statutes defining assault. Some statutes define assault as an attempted battery; others, such as Florida’s, define it only as intentional frightening, i.e., civil assault. Most commonly, other states' statutes define it as both. LaFave, § 16.3 at 565.

      . Before 1975, assault was not statutorily defined. While there is some variation in the wording used in the case law, the elements of the crime of assault, as defined by those cases, mirror the statutory elements. See, e.g., State v. Wilson, 276 So.2d 45, 46 (Fla.1973) (defining assault as '"an intentional, unlawful threat by word or act to do violence to the person of another coupled with an apparent ability to do so, and doing some act which creates a well founded fear of such violence being done’" (quoting Wilson v. State, 265 So.2d 411, 413 (Fla. 4th DCA 1972))).

      . Although the Swift opinion relies upon the erroneous language from Shorette regarding “a specific intent to do violence,” 973 So.2d at 1199, its reasoning is ultimately correct. This court examined the evidence to determine whether it would have permitted the jury to find that Mr. Swift knew Officer Sweat had run behind the SUV because in the absence of such evidence, there was no basis for the jury to conclude that Mr. Swift had intentionally threatened the officer. Id.

      . Under Mr. Pinkney's reasoning, anyone who points a gun, brandishes a knife, or drives his car toward a police officer to avoid apprehension cannot be guilty of aggravated assault. On the contrary, such threats in an attempt to elude apprehension are quintessential examples of aggravated assault on a law enforcement officer. See, e.g., Williams v. State, 597 So.2d 377 (Fla. 2d DCA 1992); Nelson v. State, 753 So.2d 648 (Fla. 3d DCA 2000); Wallace v. State, 688 So.2d 429 (Fla. 3d DCA 1997); McGee v. State, 687 So.2d 22 (Fla. 5th DCA 1996); Mitchell v. State, 611 So.2d 1269 (Fla. 3d DCA 1992).

      . The majority opinion suggests that Mr. Pinkney’s theory of defense was that of mistaken identity and that this somehow limits his argument on his motion for judgment of acquittal. First, as is his constitutional right, Mr. Pinkney presented no evidence and did not testify. I acknowledge that Mr. Pinkney’s attorney did question whether the State’s evidence proved beyond a reasonable doubt that Mr. Pinkney was the person who committed the crime. However, this was a reasonable doubt argument based on the inconsistencies in the State’s testimony and what defense counsel maintained was a lack of evidence. His argument was that the evidence presented by the State proved nothing beyond a reasonable doubt.
      In the portion of defense counsel’s closing argument quoted by the majority, counsel was clearly referring to Mr. Pinkney when he described the driver as a sixteen-year-old juvenile. The record shows that Mr. Pinkney’s date of birth is November 12, 1990, and the date of the incident was October 1, 2006. I therefore conclude that counsel’s closing was not a mistaken identity argument — i.e., that Mr. Pinkney was really somewhere else and the witnesses identified the wrong person— but rather was that the evidence was so inconclusive that the jury could not find beyond a reasonable doubt that the State had proved that Mr. Pinkney had committed the offenses with which he was charged.
      But even if the defense did argue mistaken identity, that does not alter the scope of this review. Mr. Pinkney’s argument for judgment of acquittal was that the State had failed to prove "that there was any intent on the part of Mr. Pinkney to assault Officer Zam-mitt.” It is at the close of the State's case that the trial court must weigh the circumstantial evidence presented by the State against a reasonable hypothesis of innocence. See Bussell v. State, 66 So.3d 1059, 1061 (Fla. 1st DCA 2011) ("Our review is limited to whether the evidence the State presented in [its] case-in-chief was legally sufficient.”). Once the trial court denied that motion, Mr. Pinkney was not precluded from asserting a mistaken identity defense or any other defense during his case. The trial court's error occurred in failing to recognize the insufficiency of the State’s evidence at the end of the State’s case. The fact that counsel argued mistaken identity in closing argument does not waive the argument that the State failed to prove the required statutory elements.