author: CONNER, J.

text:
    Jorge Carlos GARRIDO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-344.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.

      Beverly A. Pohl and Barbara Viota-Sawisch, of Broad and Cassel, Fort Laud-erdale, and Robert Buschel, of Buschel Gibbons, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Jorge Carlos Garrido appeals his conviction for aggravated assault with a firearm and the resulting mandatory minimum sentence of three years in prison. Garrido raises four issues on appeal that the trial court: 1) abused its discretion in giving the standard jury instruction for justifiable use of non-deadly force in defense of person without modification, contrary to this court’s decision in Bassallo v. State, 46 So.3d 1205 (Fla. 4th DCA 2010); 2) abused its discretion in giving the jury a modified version of the standard instruction for justifiable use of non-deadly force in defense of property; 3) abused its discretion in denying his request for a special instruction that pointing a firearm is non-deadly use of force as a matter of law; and 4) erred in denying his motion for judgment of acquittal. We reverse on the first issue, but affirm on the remaining issues.

Factual Background

R.D., a special process server appointed by the Broward County Sheriffs Office, was contracted to serve a foreclosure summons on Garrido and his wife. As a special process server, R.D. was issued a badge with the Sheriffs Office logo on it, but he was not permitted to identify himself as employed by or being from the Sheriffs Office.

On his first attempt of service, R.D. proceeded to the address he was given for Garrido’s home. A male came to the door and informed R.D. that Garrido didn’t live there. R.D. proceeded to Garrido’s wife’s address and personally served her. He asked the wife where Garrido lived, and she told him he lived at the address R.D. first visited. R.D. then obtained Garrido’s phone number. A skip trace on the phone number given by Garrido’s wife revealed Garrido’s address to be the address R.D. first tried. R.D. called the number and a man answered, identifying himself as George. R.D. identified himself and asked to verify Garrido’s address, but the man then denied knowing George and identified himself as Carlos. When R.D. asked the man if Carlos was his middle name and if he could come and serve the documents, the man hung up.

R.D. proceeded to the original address, parking at the end of the driveway. R.D. walked up and knocked on the front door, then rang the doorbell. Garrido came to the door and, talking through the door, asked who was there. R.D. identified himself and stated that he had legal documents for Garrido. Garrido said, through the door, “Get the f— off my property.” R.D. responded that he was there in a legal capacity and needed to serve the documents. R.D. saw Garrido in the window and walked over and showed him his ID. Garrido asked “What is that? Who are you again?” R.D. then testified as follows:

A. I told him I am a process server appointed to the Sheriffs Office to serve the document. All I need to know is if George lives here and leave the paper outside.
Q. What happened next?
A. He told me, if I don’t get off his property, he is going to f — ing kill me, and he held up a firearm.

R.D. began to back up and warned Gar-rido that he would call the police if he did not put the gun away. Garrido then pointed the gun at R.D. and again told R.D. to get off his property. R.D. testified that Garrido’s actions made him very scared. R.D. retreated and called the police, and after they arrived, Garrido was arrested.

Garrido’s version of events differed from R.D.’s. He claimed he was upstairs repairing one of his guns when he heard the doorbell ring. He was not expecting any visitors, and it was twilight outside. Gar-rido approached the door, still holding one of his guns, and asked who it was. R.D. responded that he was a Broward Sheriffs Officer. Garrido went to the side window and again asked who was there. R.D. responded that he was from the Sheriffs Department, but Garrido could see R.D. was not wearing a uniform; instead, he was wearing a T-shirt with flip-flops. Gar-rido told R.D. that he was not a law enforcement officer, and he needed to get off the property. He believed R.D. was impersonating a law enforcement officer. R.D. told Garrido that he had a right to be there and was not leaving. Garrido believed R.D. was becoming angry. He again told R.D. to get off his property. R.D. responded that he had a right to be there and asked Garrido if he was George Garrido. Garrido felt R.D. was acting aggressively, so he showed R.D. the gun he was holding. Garrido denied pointing the gun at R.D. and testified the gun was not loaded. Garrido denied seeing an ID badge, using profanity, or hearing R.D. say that he was a process server.

Justifiable Use of Nan-Deadly Force in Defense of Person Instruction

During the charge conference, the court discussed giving the standard instruction on justifiable use of non-deadly force, which would read in relevant part:

Justifiable Use of Non-deadly Force. An issue in this case is whether the defendant acted in self-defense. It is a
defense to the offense with which Jorge Carlos Garrido is charged if the injury to [R.D.] resulted from the justifiable use of non-deadly force. “Non-deadly” force means force not likely to cause death or great bodily harm.

cf. Fla. Std. Jury Instr. (Crim.) 3.6(g). Garrido’s counsel moved for the word “injury” to be stricken from the standard instruction, since R.D. was not injured. Garrido’s counsel suggested instead using “show of force.” The trial court denied the request, instead'telling defense counsel that he could argue that the “injury” to R.D. was “fright.”

Garrido claims that giving the standard jury instruction without revision was reversible error based on this Court’s decisions in Bassallo v. State, 46 So.3d 1205 (Fla. 4th DCA 2010), and Brown v. State, 59 So.3d 1217 (Fla. 4th DCA 2011). “The standard of review for jury instructions is abuse of discretion.” Zama v. State, 54 So.3d 1075, 1077 (Fla. 4th DCA 2011).

In Bassallo, we held it is fundamental error to include “injury” in the standard jury instruction for justifiable use of non-deadly force if the defendant is not charged with a crime which makes injury an element of the crime and there is no evidence of injury. There, the defendant was charged with aggravated assault after an altercation with a co-worker. Bassallo, 46 So.3d at 1206. The defendant allegedly chased the co-worker around with a knife. Id. at 1207. At trial, the defendant and other defense witnesses testified that the co-worker initiated the confrontation and threatened the defendant with a 2 x 4 board. Id. at 1208. The defendant testified that he pulled a soapstone out of his pocket and raised it to intimidate the coworker. Id. at 1208-09. The trial court read the standard jury instruction on the justifiable use of non-deadly force, to which the defendant did not object.

On appeal, however, the defendant argued it was fundamental error to give the standard instruction because the instruction provides that use of force is justifiable only if the victim suffers an “injury.” Since no injury occurred, the defendant argued the instruction negated his sole theory of defense. Id. at 1210. This Court held the standard instruction was not an accurate statement of the law because injury is not an element of aggravated assault. Further, the court held the prosecutor compounded the error by arguing during closing that the fact the coworker was in fear of, or terrified of, the defendant did not amount to an injury, and therefore, the self-defense instruction did not apply. Id. at 1211.

In Brown, we again determined that the use of the word “injury” in the standard instruction was inappropriate when there was no evidence of injury. The defendant was charged with battery on a law enforcement officer after hitting and kicking a deputy while the deputy was trying to handcuff him. The deputy testified that he was not injured by the defendant’s strikes. Brown, 59 So.3d at 1218. The trial court read the standard jury instruction on the justifiable use of non-deadly force without objection. During closing, the prosecutor argued that the jury could not find justifiable use of force because the deputy was not injured. The defendant objected on grounds this was a misstatement of the law, but that objection was overruled. Citing Bassallo, this Court reversed, holding the standard instruction negated Brown’s defense. Id. at 1219.

The State argues both Bassallo and Brown are distinguishable because in this case, the prosecutor specifically argued during closing that fear was the injury:

Nondeadly force means the trigger wasn’t pulled. Nobody got hurt. We are talking about fear. The injury in this case is fear. So is there a justifiable use of nondeadly force in this case[?]
Nondeadly force is going to be defined to be not likely to cause death or great bodily harm, and fear most certainly is not great bodily harm. It is fear that is the injury. Fear of great bodily harm, but fear, nonetheless.

There are two flaws in the State’s argument. First, it is the trial court’s responsibility to instruct the jury on the law, not the State’s. Cummings v. State, 648 So.2d 166, 168 (Fla. 4th DCA 1994) (“The trial court had the responsibility to fully and correctly instruct the jury on the applicable law.”). As the jury must follow the law as set forth by the trial court, the fact that the prosecutor and defense counsel correctly state the law during closing does not cure the trial court’s reading of an erroneous instruction. Moore v. State, 903 So.2d 341, 343 (Fla. 1st DCA 2005). Second, the State misses the import of our decision in Bassallo and Brown. Both cases were reversed on grounds the jury instruction was inadequate, not on grounds of improper prosecutorial comment.

Since this Court in both Bassallo and Brown has held the standard jury instruction for justifiable use of non-deadly force is inadequate when the defendant is charged with assault, the trial court abused its discretion in giving the standard instruction on justifiable use of non-deadly force in self-defense. This was Garrido’s sole viable defense because Garrido was not entitled to a justifiable use of non-deadly force in defense of property instruction, as explained below. Therefore, this constitutes fundamental error. Bas-sallo, 46 So.3d at 1211.

Use of Non-Deadly Force in Defense of Property Instruction

Later during the charge conference, the trial court considered the defense of property portion of the standard instruction on the justifiable use of non-deadly force in defense of property. The standard instruction is based upon section 776.031, Florida Statutes (2010). The trial court decided it would give the instruction, but modified the standard instruction by replacing “land” with “real property other than a dwelling,” tracking the language of section 776.031. Since it added the word “dwelling”, the court decided to also give the definition of dwelling set forth in section 776.013, Florida Statutes (2010), which defines dwelling as a residence and its attached porch. Then, the court decided to give the standard instruction for trespass set forth in section 13.4 of the standard jury instructions, substituting “real property other than a dwelling” for the word “property” in the standard trespass instruction.

Garrido argues that the instructions as modified and given by the trial court were misleading because they effectively instructed the jury that the use of non-deadly force was not legally permissible to defend against a trespasser within the cur-tilage of a dwelling. We disagree with this argument.

Garrido sought the use of a standard jury instruction based on a statutory defense provided by section 776.031. The standard instruction does not track statutory language, using “land” instead of “real property other than a dwelling.” Garrido argues using statutory language was more confusing and misleading than using the standard jury instruction. As we have previously observed, “[a] correct jury instruction is not necessarily required to track the language of the standard jury instruction or the statute. If the instructions, as a whole, fairly state the applicable law, the failure to give a particular instruction is not error.” Thompson v. State, 814 So.2d 1103, 1106 (Fla. 4th DCA 2002), disapproved on other grounds, Battle v. State, 911 So.2d 85 (Fla.2005) (citing CSX Transp., Inc. v. Whittier, 584 So.2d 579, 586 (Fla. 4th DCA 1991)).

In Polite v. State, 973 So.2d 1107 (Fla.2007), our supreme court held the statute criminalizing resisting an officer with violence was ambiguous as to whether the State had to prove the defendant knew the person he was resisting was an officer. The court further held that the standard jury instruction for the crime was inadequate because it tracked the ambiguous language of the statute. Id. at 1118.

In the instant case, Garrido does not argue that section 776.031 is ambiguous or confusing. Instead, Garrido argues that the trial court was confused as to whether section 776.031 is applicable when one is standing in the curtilage of a home. In our view, the statute clearly allows the use of non-deadly force within the curtilage of a home. The trial court did not define “dwelling” in a way that would confuse the jury into thinking Garrido could not use non-deadly force at the place where R.D. was standing when the gun was produced (leaning over bushes in front of a window). “Dwelling” was defined by the court to be a residence and its attached porch. A residence is commonly understood to be the house in which one lives. Residence Definition, Dictionary.com, http:// dictionary, reference, com/browse/residence (last visited Aug. 9, 2012). Neither side requested an instruction defining “a residence.” Although section 776.013(5) begins with “As used in this section ...,” it does not appear inappropriate to apply the definition of “dwelling” in that section to other parts of Chapter 776 (Justifiable Use of Force). Cf. Fla. Std. Jury Instr. (Crim.) 3.6(g).

The evidence was undisputed that R.D. was not inside the residence or standing on the porch when Garrido produced the gun where R.D. could see it. The defense was free to argue that at the time the gun was produced, R.D. was trespassing on real property other than a dwelling and Garri-do was justifiable in using non-deadly force. Thus, we find no error and affirm on this issue.

Special Instruction on Use of a Firearm

During the charge conference, Gar-rido requested a special instruction which would have read: “Pointing a firearm without firing it amounts to the use of nondeadly force.” The trial court determined that the special instruction was not necessary because the standard instruction defined what constituted deadly force or non-deadly force; so, it was a jury determination whether Garrido’s actions in this case constituted deadly or non-deadly force. Garrido argues it was error to refuse to give the special instruction based on two cases from sister district courts that have held that pointing a gun without firing it is non-deadly force as a matter of law.

The failure to give a requested special jury instruction is error only if the following three elements are satisfied: “(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.” Stephens v. State, 787 So.2d 747, 756 (Fla.2001). The standard of review is abuse of discretion. Id. at 755-56.

There appears to be no dispute that the special instruction was supported by the evidence. In regard to whether the special instruction was a correct statement of law, we agree that the cases Garrido relies on, Stewart v. State, 672 So.2d 865 (Fla. 2d DCA 1996), and Rivero v. State, 871 So.2d 953 (Fla. 3d DCA 2004), hold that merely displaying a gun without firing it does not constitute deadly force as a matter of law. However, neither Stewart nor Rivero considered the issue of giving a special instruction.

Garrido argues that without the special instruction, the jury may have been confused by the standard instruction on non-deadly force since the jury was also required to consider whether Garrido used a deadly weapon and whether a firearm is a deadly weapon as part of the aggravated assault instruction. Specifically, the jury was instructed that, as one of the elements of aggravated assault with a deadly weapon, they needed to find the assault was made with a deadly weapon. “Deadly weapon” is defined as “[a] weapon ... if it is used or threatened to be used in a way likely to produce death or great bodily harm.” As part of the justifiable use of force instruction, the jury was also instructed that “[njondeadly force means force not likely to cause death or great bodily harm.”

Further, Garrido argues that jury questions submitted during deliberation demonstrate the jury was confused. During deliberations, the jury asked two questions: (1) “Is an unloaded gun a deadly weapon?”; and (2) “Question, likely to produce death. Does this phrase mean the weapon used at the time must be capable of producing death or is the threat of thinking it is capable sufficient?” In response to the first question, Garrido reiterated his request to read special instruction 3. The trial court instead decided to reread the entire instruction on aggravated assault to answer both questions.

We find that the standard instruction on non-deadly force adequately covered Gar-rido’s theory of defense. If the jury was confused, it was not regarding whether Garrido’s actions constituted non-deadly force, but whether an unloaded gun, not capable of inflicting deadly force, could nevertheless be considered a deadly weapon. It can. See Nash v. State, 374 So.2d 1090 (Fla. 4th DCA 1979); Humphries v. State, 232 So.2d 23 (Fla. 1st DCA 1970)

If the trial court had read Garrido’s special instruction 3, it would not have resolved this confusion. Instead, the special instruction may have misled the jury into believing that aggravated assault could not be committed with an unloaded gun. The standard instruction on non-deadly force clearly permits a jury to find that merely pointing a firearm was not deadly force since pointing a gun would “not [be] likely to cause death or great bodily harm.” The trial court did not abuse its discretion in denying the special instruction.

Judgment of Acquittal

Finally, Garrido argues that he was entitled to judgment of acquittal as a matter of law on grounds that R.D. became a trespasser when Garrido ordered him to leave and R.D. refused. At that point, Garrido argues that he was entitled to use non-deadly force to terminate the trespass.

As noted by both parties, the standard of review for the denial of a judgment of acquittal is de novo. Williams v. State, 59 So.3d 373, 375 (Fla. 4th DCA 2011) (quoting Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). Further, “[i]f 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.

Viewing the evidence in the light most favorable to the State, R.D. was serving process, was not trespassing on Garrido’s property, and there was no need to use non-deadly force to terminate a trespass. Even if Garrido believed that he needed to display his firearm because R.D. was not a process server and felt threatened, determining if that belief was reasonable is a jury question. Geffkin v. State, 820 So.2d 331, 335 (Fla. 4th DCA 2002) (“questions of reasonable belief and amount of force necessary for protection were questions for the jury”). Therefore, the trial court did not err in denying judgment of acquittal on this ground.

Conclusion

Since the trial court committed fundamental error in reading the standard jury instruction on justifiable use of non-deadly force in defense of self, we reverse and remand for a new trial.

Reversed and remanded for a new trial.

WARNER and STEVENSON, JJ„ concur.

      . Section 776.031, Florida Statutes, provides:
      A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a
      duty to retreat if the person is in a place where he or she has a right to be.
      § 776.031, Fla. Stat. (2010) (emphasis added).

      . Section 776.013(5), Florida Statutes, provides:
      As used in this section, the term:
      (a) "Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
      (b) "Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
      § 776.013(5), Fla. Stat. (2010).

      . At trial and on appeal, Garrido made no argument he was seeking a common law use-of-force instruction.


source: Caselaw Access Project

author: DAMOORGIAN, J.

license: Public Domain

text:
    John H. CAPIRO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-331.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.

      Jason T. Forman of Law Offices of Jason T. Forman, P.A., and Russell J. Williams of Law Offices of Russell J. Williams, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

John Capiro appeals his conviction and sentence for grand theft over $100,000, raising a number of issues. We find merit to his claim of ineffective assistance of counsel and reverse only as to that issue.

Capiro’s conviction was the result of a business deal gone wrong. In 2006, Capi-ro started a commercial mortgage lending company. Two of Capiro’s friends (the “victims”) expressed an interest in Capi-ro’s business. Capiro agreed to make the victims part owners in the business, and the victims in turn loaned Capiro $250,000. Capiro and the victims, without the assistance of counsel, memorialized their agreement in two documents: a Business Agreement and a Promissory Note.

The structure of the $250,000 loan is somewhat ambiguous. The Business Agreement did not make any reference to the loan or otherwise dictate how the loan was to be used, and the Promissory Note indicated that the loan was being made to Capiro and his wife in their individual capacity. The terms of payment outlined in the Promissory Note dictated that Capiro was to make monthly “interest only” payments with a return of the principal in three years. It did not outline any restrictions on Capiro’s use of the loan funds. However, an addendum to the Promissory Note suggested that the loan was made to the business so that it could qualify for a commercial lending license. Moreover, one of the victims testified that the loan was made only to satisfy the licensing requirements for the lending business, and Capiro understood that he was not entitled to spend the principal for personal uses.

Capiro ran into financial problems shortly after he formed the lending business. He continued to make the required monthly “interest only” payments on the loan but, unbeknownst to the victims, he began using the principal to pay for his personal expenses. Soon thereafter, he spent all of the loan proceeds and was no longer able to make the required monthly interest payments. After Capiro informed the victims that he had spent all of the money and would not be able to pay it back, the victims sued Capiro. They also contacted the sheriffs office, and Capiro was charged with grand theft over $100,000.

At trial, Capiro admitted that he borrowed, spent, and did not pay back the loan funds. However, he testified that he believed he was entitled to spend the funds on personal expenses because the loan was a personal loan as evidenced by the fact that the note was signed by Capiro and his wife in their individual capacities without any restriction on use. In essence, Capi-ro’s entire defense was that he did not have the requisite intent to commit theft because he spent the funds under the good faith belief that he was allowed to do so.

Florida recognizes that “a good faith belief in one’s right to possession of property is a defense to the charge of theft.” Alfaro v. State, 837 So.2d 429, 432 (Fla. 4th DCA 2002) (citing Rodriguez v. State, 396 So.2d 798, 799 (Fla. 3d DCA 1981)). Further, a defendant is entitled to instruct the jury on a “good faith” defense if there is any evidence to support the defense. See e.g., Verdult v. State, 645 So.2d 530 (Fla. 4th DCA 1994) (court erred in disallowing theft defendant’s requested good faith defense jury instruction because contract between defendant and victims constituted evidence that defendant had a good faith belief that he was entitled to property in question). Although Capiro’s counsel touched on the good faith defense in his opening and closing arguments, he ultimately failed to request a good faith defense jury instruction. Capiro argues that this constituted ineffective assistance of counsel.

To succeed on an ineffective assistance of counsel claim, a defendant must satisfy the following elements: 1) counsel’s performance was deficient to the point that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment, and 2) the deficient performance prejudiced the defense. Aversano v. State, 966 So.2d 493, 494-95 (Fla. 4th DCA 2007) (citing Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Ineffective assistance of counsel claims are usually reserved for post-conviction relief, and can be addressed on direct appeal only “where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious.” McMullen v. State, 876 So.2d 589, 590 (Fla. 5th DCA 2004).

Capiro acknowledges that ineffective assistance of counsel claims are generally not cognizable on direct appeal, but maintains that his counsel’s ineffectiveness is apparent on the face of the record. We agree.

We find our holding in Aversano disposi-tive of the issue before us. 966 So.2d at 496-97. There, defense counsel failed to request a good faith defense jury instruction at the trial of a grand theft defendant who admitted to selling property belonging to a third party, but argued that she did so because her attorney told her she could. Id. at 495. We held that it was apparent on the face of the record that defense counsel’s performance was deficient because the good faith defense was central to the defendant’s case, and that the defendant was prejudiced since she was essentially deprived of her only defense. Id.

Here, Capiro’s entire defense at trial was that he thought he was allowed to spend the funds in large part because he and his wife signed the Promissory Note in their individual capacities. Based on our holding in Aver sano, it is apparent on the face of the record that Capiro’s defense counsel was ineffective because he failed to request that the jury be instructed on a defense central to Capiro’s case. We further hold that Capiro was prejudiced by virtue of the fact that the jury was not presented with an instruction on the law applicable to his only defense.

Accordingly, we reverse and remand for a new trial. We affirm as to the trial court’s rulings on the remaining issues raised by Capiro without further comment.

Reversed and Remanded.

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

      . Capiro also assigns error to the trial court’s denial of his motion for acquittal; denial of his sworn motion to dismiss; limitation of his expert’s testimony; and allowing the State's introduction of the mortgage lending licensing statute, section 494.0061, Florida Statutes (2006), into evidence.

      . Section 494.0061 outlines the requirements for obtaining a commercial lending license, one of them being a net worth of $250,000.


author: WARNER, J.

text:
    Hugo Martinez LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-227.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.

      Antony P. Ryan, Regional Counsel, and Louis G. Carres, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In challenging his conviction and sentences for first degree murder and other crimes, appellant Lopez raises three issues: 1) whether the trial court erred in failing to give an independent act instruction; 2) whether the court erred in admitting a note from appellant to a fellow prisoner; and 3) whether his two convictions for robbery with a firearm violate double jeopardy. Because there was evidence that appellant intended to participate in the robbery, the court did not err in refusing to give the independent act instruction. The court properly found that the state presented a prima facie case of authenticity of the note, which was thus admissible. We do, however, conclude that the two convictions for robbery with a firearm arise from a single forcible taking, and one must be vacated.

Appellant was charged with first degree murder of Angel Pulido during the perpetration or attempt to perpetrate a burglary or robbery; robbery with a firearm of currency from Angel Pulido; robbery with a firearm of currency from Pulido’s girlfriend; burglary of a dwelling with an assault or battery while armed with a dangerous weapon; cruelty to animals by discharging a firearm resulting in a cruel death to an animal; and, grand theft of a motor vehicle. These charges arose from a violent robbery at the home of Pulido.

The trial testimony revealed that Lopez and Brad Boswell were at the home of Boswell’s cousin, Justin Jenkins. Jenkins testified that a friend drove them to Daniel Solomon’s house. Jenkins heard them talking about doing “a lick” which could mean either selling drugs or committing a robbery. He saw Solomon drop some bullets into Boswell’s hand, and he saw Boswell, Lopez, and Solomon drive off in Solomon’s car.

A detective testified to the admissions that Lopez made in a statement to officers after having been apprehended. Lopez said that he accompanied Boswell to the home of Angel Pulido. Pulido answered the door, and Lopez asked him if he had any cocaine. Lopez had a tire iron and an unloaded gun. Pulido tried to shut the door but Boswell put a gun to Pulido’s stomach and fatally shot him. Boswell then shot and killed Pulido’s pit bull. Inside, Boswell demanded money, drugs, and guns from Pulido’s girlfriend. She went into the closet and gave Boswell a container with loose change. Lopez and Boswell went out the back door where they were supposed to meet Solomon in his car, but he wasn’t there. They ran back to the house, and Lopez used the tire iron to break the window. The victim’s girlfriend was on the phone calling police. Boswell took the phone from her. He then took the keys to two vehicles and drove off in the girlfriend’s Dodge Durango. As he drove, Boswell threw the gun he used to shoot the victim out the driver’s side window into a ditch near some woods. Boswell drove to a house where he tried to get a ear from a Hispanic man who lived there. Lopez told him in Spanish that Boswell wanted the keys to his car. He didn’t get the car, and they left.

To another officer, Lopez admitted that Boswell told him that they were going to do a “lick” or a robbery. He also admitted that Boswell shot Pulido. Lopez had a gun which Boswell told him to point at Pulido, which he did. Lopez’s gun was inoperable.

The girlfriend testified that she was asleep when she awakened to a loud sound. Their pit bull came into the bedroom and fell off the bed dead. She looked out the bedroom door and saw a boy with a bandanna around his face and a gun in his hand. Another man came into the bedroom and demanded drugs and money. She told him she didn’t know what he was talking about. She remembered she had a bucket in the closet where they put loose change, and she got it and gave it to them. Then they ran out the back door and she locked it. She saw Pulido and called 911. She was on the phone with 911 when the two came back and broke into the back door of the house. The man demanded the keys to her vehicle. She gave them to him, and the two men went through the front door and left in her Dodge Durango.

When apprehended, Lopez had a bandanna which matched the description of the one the girlfriend saw on the perpetrators. In the Durango, officers recovered another bandanna and a gun, but not the murder weapon. Boswell also had the keys to the Durango in his pocket when the officers searched him.

Also testifying at trial was an Okeechobee County Jail inmate, Anthony Brazell, who befriended Lopez. Their cells were next to each other. The two men had talked with each other but were afraid people were listening, so Lopez wrote the notes about the crimes that Lopez had committed. In them, Lopez told Brazell that he should have had a gun with bullets so that he could have killed the girlfriend and eliminated any witnesses. Brazell testified that Lopez had passed two notes to him. He could hear Lopez’s voice but couldn’t see him. He identified a tattoo on Lopez’s arm which he saw as Lopez passed the notes. Brazell kept the notes and turned them over to police. The state had an expert analyze the pages for fingerprints. One fingerprint of Lopez was identified on the first page. Other prints belonged to the inmate. Brazell received a favorable plea deal on the charges against him after delivering the notes to the state. The trial court admitted the notes over Lopez’s objection that there was no proof that they came from him.

Based upon the evidence presented, the jury found Lopez guilty of all crimes charged. He was subsequently sentenced to life on the first four counts (murder, two counts of robbery with a firearm, and burglary with an assault) and five years concurrent on the last two (cruelty to an animal and grand theft). He now appeals.

In his first issue, Lopez claims that the trial court abused its discretion in refusing to give an instruction on independent acts. He had requested the standard jury instruction, but the trial court denied the request, ruling that there was no evi-dentiary support for the instruction. The independent act doctrine arises when one co-felon, who previously participated in a common plan, does not participate in acts committed by his co-felon, which fall outside the common design of the original collaboration. Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995). A ruling on a request for a jury instruction is reviewed for abuse of discretion. Zama v. State, 54 So.3d 1075, 1077 (Fla. 4th DCA 2011).

Lopez cites Ray v. State, 755 So.2d 604 (Fla.2000), in support of his position. However, we find that it supports the trial court’s denial of the requested instruction. In Ray, Ray and Hall robbed a liquor store. While escaping, they experienced car trouble and were fixing their car when a police officer arrived. A gun battle ensued in which the officer was killed. Ray contended at trial that he did not pull the trigger, and the killing did not occur during the commission of the robbery or escaping from it. The supreme court rejected Ray’s contention that the trial court erred in failing to give the independent act instruction. Because both Ray and Hall were participants in the robbery and the murder resulted from forces they set in motion, no independent act instruction was warranted. Even if Hall pulled the trigger, Ray was culpable as a co-felon because the murder was committed in the course of a felony.

Here, Lopez knew of and agreed to commit the robbery. The murder occurred in furtherance of the robbery, and thus the independent act instruction was not applicable. Id. See also Wagner v. State, 921 So.2d 38, 41 (Fla. 4th DCA 2006) (independent act instruction should not be given where the evidence shows the murder was committed in furtherance of the felonious scheme). In fact, there was no evidence to support Lopez’s claim that the murder was not in furtherance of the plan to rob Pulido. There is no merit to this issue.

Lopez next contends that the court erred in admitting the notes to Bra-zell, the inmate at the jail, where there were insufficient indicia of reliability that the notes were written by Lopez. We disagree. A trial court’s decision to admit evidence is reviewed using the abuse of discretion standard of review, as limited by the rules of evidence. See Johnson v. State, 40 So.3d 883, 886 (Fla. 4th DCA 2010). Here the trial court acted well within its discretion.

Evidence must be authenticated prior to its admission into evidence. § 90.901, Fla. Stat. (“Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”). Authentication requires only a prima facie case to support admission, and the proponent may provide both direct and circumstantial evidence to satisfy that burden. See State v. Love, 691 So.2d 620, 621 (Fla. 5th DCA 1997). “[T]he final decision regarding genuineness is within the province of the jury and ... the trial court’s responsibility must end with a determination whether the facts support a finding of authenticity.” Id. at 622.

Here, the state relied on both direct and circumstantial evidence to support a prima facie case of admissibility. Brazell testified that Lopez talked with him and decided to communicate in writing regarding the crime. Brazell and Lopez shared adjoining cells, and Brazell recognized the tattoo on Lopez’s arm when he received the note. The notes contained details of the crime that a perpetrator would have known, and Lopez’s fingerprint was on one page of the note. We conclude that the trial court had sufficient evidence for a prima facie case of authenticity. The issue was properly submitted to the jury.

Finally, Lopez contends that the two convictions and sentences for robbery with a firearm violate double jeopardy. The state charged Lopez with robbery of currency. One count charged him with the taking from Pulido, and the other count charged the taking of the same money from the girlfriend. The facts show that only one forceful taking occurred, namely the taking of the money from the girlfriend. Under these circumstances, double jeopardy principles require that one of the convictions for robbery be vacated. See Hussain v. State, 67 So.3d 307, 308-09 (Fla. 4th DCA 2011) (double jeopardy violated where defendant convicted of robbery of two store managers where only one taking occurred); Lundy v. State, 614 So.2d 674 (Fla. 4th DCA 1993) (where defendant pointed gun at both dining room supervisor and assistant manager but took money only from one safe, convictions for robbery of both supervisor and manager violated double jeopardy); Taylor v. State, 589 So.2d 997, 998-99 (Fla. 1st DCA 1991) (forceful taking of money from cash register permits only one conviction for robbery even though two employees are placed in fear), rev’d on other grounds, 608 So.2d 804 (Fla.1992).

For the foregoing reasons we affirm appellant’s convictions and sentences, except on remand we direct that at least one conviction for robbery be vacated.

POLEN and DAMOORGIAN, JJ„ concur.


author: PER CURIAM.

text:
    Winton Roger COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4511.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.
    Winton Roger Collins, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s untimely and successive motion for post-conviction relief. Appellant’s claims that the State Attorney committed perjury, and that the trial court lacked jurisdiction, are frivolous. Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009); Logan v. State, 21 So.3d 917 (Fla. 4th DCA 2009).

' We have seen numerous post-conviction motions filed by prisoners arguing this same frivolous issue which attempts to challenge the conviction based on allegations that the state attorney failed to receive sworn testimony from material witnesses before filing the information. Prisoners are cautioned that the filing of frivolous post-conviction challenges will not be tolerated.

The clerk is directed to send a certified copy of this opinion to the appropriate institution for disciplinary procedures. § 944.279(1), Fla. Stat. (2012). Appellant is cautioned that any further frivolous or malicious filing will result in this court imposing the sanction of no longer accepting his pro se filings. State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed. Appellant referred to prison officials.

TAYLOR, HAZOURI and CIKLIN, JJ., concur.


author: EMAS, J.

text:
    Vernall HAMMETT, Appellant, v. FLORIDA REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Salvation Army, Appellees.
    No. 3D11-33.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.
    Erik W. Scharf, Coconut Creek, and Wayne R. Atkins, for appellant.
    Amanda L. Neff, for appellee Florida Reemployment Assistance Appeals Commission, Bovis, Kyle & Burch, and Scott Busby, Atlanta, GA, for the Salvation Army.
    Before ROTHENBERG, SALTER and EMAS, JJ.
   Corrected Opinion

EMAS, J.

Vernall Hammett (“Hammett”) appeals a final order of the Florida Reemployment Assistance Appeals Commission (“Appeals Commission”), affirming a decision of an Appeals Commission referee which disqualified Hammett from receiving unemployment compensation on the basis that his employer, the Salvation Army, was owned and operated primarily for religious purposes and was operated, supervised, controlled, or principally supported by a church.

Hammett worked as a sorter and then as a general manager at a thrift store operated by the Salvation Army. Hammett lost his job in 2009 and filed an unemployment claim in the middle of 2010. Shortly thereafter he received a Determination Notice from the Agency for Workforce Innovation notifying him that “the wages earned with the [Salvation Army] are not eligible for unemployment compensation tax. The employer’s primary function is a church or religious institution and these wages are not subject to unemployment taxation as stated by Florida law.”

Hammett appealed this decision and a hearing was held before the Appeals Commission referee. Hammett was the only witness to testify at the hearing. No representative of the Salvation Army was present at or participated in the hearing. The referee asked Hammett a series of questions regarding the Salvation Army’s religious affiliation and purposes. The referee ultimately denied benefits, concluding that the Salvation Army “is operated primarily for religious purposes” and “is operated by a religious institution.” The Appeals Commission affirmed the decision, and Hammett timely appealed.

Having reviewed the meager record, including Hammett’s testimony, it is clear that there is no competent substantial evidence to support the referee’s determination and the Appeals Commission’s final order affirming same. With regard to findings of fact, “[a]n appellate court must reverse the Commission’s decision to affirm the referee’s findings where competent substantial evidence does not support the findings.” Garcia v. Wolf in the Woods, Inc., 37 So.3d 313 (Fla. 3d DCA 2010).

We reverse the Appeals Commission’s order and remand for an award of unemployment compensation benefits to Hammett.

      . The opinion is corrected solely to note that Brad Sohn, a student at the University of Miami School of Law, and in conjunction with the Rosemary Barkett Appellate American Inn of Court, assisted Appellant’s counsel in the preparation of the briefs.

      . The Florida Unemployment Appeals Commission has been renamed and, effective July 1, 2012, is now known as the Florida Reemployment Assistance Appeals Commission. See Ch. 2012-30, § 2, Laws of Fla.

      . Section 443.1216(4)(a), Florida Statutes (2010), provides in relevant part:
      [T]he employment subject to this chapter does not apply to service performed:
      (a) In the employ of:
      1. A church or a convention or association of churches.
      2. An organization that is operated primarily for religious purposes and that is operated, supervised, controlled, or principally supported by a church or a convention or association of churches.

      . Effective July 1, 2011,, this agency became known as the Department of Economic Opportunity. See § 443.012, Fla. Stat. (2011).

      . There is nothing in the record before us to indicate ,the basis upon which this determination was made.

      . The only record evidence to support the conclusion that the Salvation Army is operated primarily for religious purposes or is operated by a religious institution came from the tentative-at-best testimony of Hammett:
      REFEREE: And can you tell me was the Salvation Army primarily a religious institution?

        HAMMETT: In a way yes it is.
      REFEREE: ... Is it funded and operated by a religious organization?
      HAMMETT: Yes.
      REFEREE: Do you know what religious organization that is?
      HAMMETT: I think it is — that would be church—
      REFEREE: That's okay if you don't know sir. I am just asking in general. If you happen to know the—
      HAMMETT: No, I don't really know what religious group that is.
      REFEREE: Does all the profit made from the Salvation Army services go toward that religious organization?
      HAMMETT: No, not really all the profits.
      REFEREE: Okay, where do the profits from the Salvation Army go, do you know?
      HAMMETT: Well it helps feed the men in the center and then they send some of the proceeds back to Atlanta, Georgia.
      REFEREE: And what is in Atlanta, Georgia?
      HAMMETT: It is headquarters group.
      REFEREE: For the Salvation Army?
      HAMMETT: Yes.
      REFEREE: ... And can you tell me sir the store location where you worked, was this located on premises owned by the church or any sort of religious institution?
      HAMMETT: Yes it was located on their— the store was — it’s [an] adult rehabilitation center and that helps feed the ... homeless and job related, you know, applicants.

      . In his brief, Hammett argued the referee improperly placed the burden upon him to prove that the Salvation Army was not operated primarily for religious purposes. The Appeals Commission responded by asserting that such a burden is properly placed upon the claimant, citing His Kids Daycare v. Florida Unemployment Appeals Commission, 904 So.2d 477 (Fla. 1st DCA 2005). We need not address whether we agree with His Kids, because the record does not reflect that the referee placed such a burden upon Hammett. The record instead reflects that the referee based his finding upon the testimony elicited during the hearing.


author: SALTER, J.

text:
    B & G AVENTURA, LLC, Appellant, v. G-SITE LIMITED PARTNERSHIP, Appellee.
    No. 3D11-1562.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.

      Michael A. Vandetty, Miami, for appellant.
    Rosenthal Rosenthal Rasco Kaplan and Eduardo Rasco and Steve M. Bimston, Aventura, for appellee.
    Before CORTINAS and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

In 2005, the appellant/purchaser signed a detailed written contract to buy a residential condominium in a high-rise tower then under construction. After a pre-clos-ing walkthrough in January 2007, the purchaser asserted that the appellee/developer’s sales team had assured the purchaser that the condominium unit, once completed, would have an unobstructed view of the nearby marina. The as-built fourth floor unit’s view of the marina, however, was obstructed by the top of a covered driveway and entrance to the building. In 2008 the purchaser sued the developer for the return of the $148,500 deposit and other damages, and for rescission of the contract.

We affirm the trial court’s summary judgment and final judgment in favor , of the developer. The comprehensive written contract between the parties included specific provisions disclaiming oral representations and confining the agreements and obligations of the parties to those set forth in the contract, enumerated condominium documents, and brochures for the condominium. The contract included a specific disclaimer of any “guarantee of view, security, privacy, location, design, density or any other matter,” except as set forth in the contract or the condominium prospectus.

The purchaser’s amended complaint,, deposition transcript, and affidavit opposing the developer’s motion for summary judgment, ignore or circumvent these unambiguous provisions by invoking legal theories based on fraudulent inducement and mutual mistake. The purchaser’s claim of fraudulent inducement fails as a matter of law because the alleged oral misrepresentations “are adequately covered or expressly contradicted in a later written contract.” Hillcrest Pac. Corp. v. Yamamura, 727 So.2d 1053, 1056 (Fla. 4th DCA 1999). As this Court articulated the principle years before the evolution of the economic loss rule (and several Florida real estate cycles ago):

The chief and most satisfactory index to determine the intent of the parties to an agreement as to whether they intended their written contract to be a complete and final statement of the whole transaction is whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing. If it is mentioned, covered, or dealt with in the writing, then presumably the writing was meant to represent all of the transaction on that element, Milton v. Burton, 79 Fla. 266, 84 So. 147 [(1920)]; Bryan v. St. Andrews Bay Community Hotel Corp., 99 Fla. 132, 126 So. 142 [(1930)]; see 13 Fla. Jur., Evidence § 394 (1957); Wigmore, Evidence § 2430 (3rd ed. 1940).

Greenwald v. Food Fair Stores Corp., 100 So.2d 200, 202 (Fla. 3d DCA 1958).

In the case at hand, the identity and location of the unit, as well as a disclaimer of any representation regarding the view from any completed unit, are expressly addressed in the contract.

As to a claim by the purchaser based on “mutual mistake,” the purchaser’s amended complaint alleges:

12. Upon conducting the walk through of Unit 407, Plaintiff observed that, rather than as represented by Defendant, the view from Unit 407 to the marina was completely obstructed by the awning/roof covering the valet parking entrance to the building. Upon making said observation Plaintiff immediately questioned Defendant’s representatives as to wether [sic] or not a mistake had been made as he had been assured that Unit 407 would not have an obstructed view.
13. Defendant’s representative indicated that no mistake had been made; that Unit 407 had always been designed and contemplated as having an obstructed view and that Unit 507 was the first available unit in the building which would have an unobstructed view of the marina.

The purchaser’s attempt to “mend its hold” here fails in view of the purchaser’s own unambiguous allegation (obviously calculated to support a fraudulent inducement claim rather than a claim based on mutual mistake) that the developer denied any such mistake. The mistake, if one occurred, was unilateral.

Affirmed.

      . See Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337, 1339 (Fla. 3d DCA 1979).


author: SUAREZ, J.

text:
    Luis A. SORO, Appellant, v. Jose L. SORO, Appellee.
    No. 3D11-1791.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.
    Rehearing Denied Oct. 9, 2012.
    Luis A. Soro, in proper person. Jerome Hurtak, North Miami, for appellee.

      Before SHEPHERD, SUAREZ and SALTER, JJ.
   SUAREZ, J.

After a thorough review of the record, briefs and applicable law, we find that no preliminary basis for reversal has been demonstrated by the appellant and, therefore, summarily affirm the lower court’s order on appeal; See Fla. R.App. P. 9.315(a).


author: EVANDER, J.

text:
    Diana Lynn FRENZKE, f/k/a Diana L. Jacobs, Appellant, v. Brian L. JACOBS a/k/a Brian L. Jacobs, Sr., et al., Appellees.
    No. 5D11-1854.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.
    Sean P. Sheppard, of J. Scott Gunn, P.A., Ft. Lauderdale, for Appellant.
    Brandon D. Beardsley, of Mowrey, Shoemaker, & Beardsley, P.L., St. Augustine, for Appellee Brian L. Jacobs.
    No Appearance for other Appellees.
   EVANDER, J.

The former wife appeals from a final judgment for dissolution of marriage. She contends that the trial court erred by failing to address her claim that the Individual Retirement Accounts (IRAs) titled in her name and certain items of personal property were nonmarital assets and not subject to equitable distribution. We agree.

Section 61.075(3)(a), Florida Statutes (2010), requires a trial court, in any contested dissolution action, to make specific written findings of fact that, inter alia, clearly identify nonmarital assets and ownership interests:

In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:
(a) Clear identification of nonmarital assets and ownership interests; ...

See also Preudhomme v. Bailey, 82 So.3d 138, 141 (Fla. 4th DCA 2012) (reversing final dissolution judgment where trial court refused to determine whether certain Jamaica property was marital or nonmari-tal, but instead determined that parties could litigate matter in Jamaican courts because statute requires court to make clear identification of marital and nonmari-tal assets).

In the instant case, the former wife testified that she had three IRAs totaling in excess of $110,000 and that most of the funding for these IRAs occurred prior to the parties’ marriage in November 2003. Our reading of the record indicates that approximately $18,000 may have been added to the IRAs during the marriage but, according to the wife, these funds were gifts from her parents. The former wife’s evidence was largely uncontroverted. The trial court did not make a determination as to whether the former wife’s IRAs (or any portion thereof) were nonmarital, but instead directed that the IRAs be used to pay off marital debts and liabilities that might remain after the sale of the parties’ jointly-held real property and businesses. (The trial court found that the parties’ real property and businesses were “upside down.”).

Similarly, the former wife identified certain items of personal property that she claimed to have brought into the marriage. The former husband acknowledged that some (but not all) of these items were, indeed, the former wife’s premarital property. Notwithstanding the former husband’s admission, the trial court included all the personal property in the equitable distribution plan and failed to make any finding as to whether such personal property was marital or not.

Despite the request both at trial and in a timely-filed motion for rehearing to make a determination on the former wife’s claim that the IRAs and certain items of personal property were her nonmarital assets, the trial court failed to do so. This noncompliance with section 61.075(3)(a) requires reversal. Because a proper determination of the ownership interest in the IRAs and the personal property will likely impact other provisions of the final judgment, the trial court may reconsider its equitable distribution plan in its entirety. See Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981) (where a trial court is found to be in error as to some aspect of its disposition in marital dissolution case, cause should be remanded with sufficient authority so that trial court may again exercise broad discretion to modify related matters within its original plan for property division and support as may be necessary in order to do equity and justice between parties in view of changes required by appellate opinion).

We affirm, without discussion, as to the third issue raised on appeal.

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

COHEN and JACOBUS, JJ., concur.

      . For the benefit of the trial court on remand, we would observe that both parties testified that they borrowed $10,000 from the former wife's parents to help purchase a lot. Notwithstanding the "lack of supporting documentation," the parties’ testimony clearly established the existence of a marital debt.


author: ORFINGER, C.J.

text:
    Eric James PROCTOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1142.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, C.J.

Erie Proctor appeals his convictions of two counts of uttering a forged check and two counts of third-degree grand theft. On appeal, Proctor argues that the court erred when it allowed a detective to identify him as the man cashing two stolen checks after comparing the bank’s surveillance video and Proctor’s photo and signature found in a state driver’s license database. We agree and reverse for a new trial.

Two stolen checks, endorsed with the name “Eric Proctor,” were cashed at a SunTrust Bank. Detective Garrett Lane received the checks and a video of the transactions from the bank. The videotape showed an African American man endorsing the checks. The man presented a Florida driver’s license for identification. Using the Florida “Driver and Vehicle Information Database” (“DAVID” system), Detective Lane determined that the driver’s license number written on the checks was invalid. However, he did find an “Eric Proctor” in the DAVID system with a driver’s license number several digits off from the number noted on the checks. Based on his review of Proctor’s photo contained in the DAVID system, and the surveillance -video obtained from the bank, Detective Lane concluded that Proctor was the individual shown on the bank videos. Detective Lane also concluded, after reviewing Proctor’s signature on file in DAVID and the signature on the two forged checks, that they were written by the same person, although he had no special training in handwriting analysis and was not familiar with Proctor’s signature. The two tellers, who cashed the checks, did not know and could not identify Proctor at trial as the person who presented the checks.

Prior to trial, Proctor filed a motion in limine to prevent Detective Lane from testifying that Proctor’s photo and signature contained in the DAVID database depicted the same person shown in bank video and the signatures on the two stolen checks. The trial court denied Proctor’s motion and allowed Detective Lane to testify during trial that Proctor was the person shown in the bank surveillance video:

A Looking at his [DAVID] record, I realized that Eric Proctor in this photograph, is a black male with short hair and a salt and pepper colored mustache. He is listed as being 6-feet tall and he was born in 1957.
Based on his photograph as it appears here and some of his other information, it appeared to me that he was the person pictured on that video.

Detective Lane further opined that based on his investigation, which included the comparison of the signature contained in DAVID with the signatures on the stolen checks, Proctor was the individual shown in the video passing the two checks:

Q Sir, we left off talking about the signature on the check versus the signature in the [DAVID] record. Did you, in the course of your investigation, observe those two signatures?
A Yes.
Q And what did those two signatures lead you to believe?
A That they were written by the same person.
Q Based upon your investigation, who is the individual in the video passing the checks?
A Eric Proctor.
Q And that is the defendant?
A The defendant, yes sir.

The jury found Proctor guilty on the four charged counts. Proctor filed a timely motion for new trial, arguing that Detective Lane’s opinion testimony regarding the identity of the person shown in the video cashing the checks and the disputed signatures on the two checks was improper and prejudicial. After the court denied the motion, this appeal followed.

Relying on Ruffin v. State, 549 So.2d 250 (Fla. 5th DCA 1989), Proctor argues that this Court should reverse his convictions. In that case, the State offered a videotape of a drug purchase by an undercover police officer. Over objection, three police officers, who were not present at the undercover transaction testified that, in their opinion, Ruffin was the man on the tape. Id. at 251. This Court held that the testimony invaded the province of the jury:

When factual determinations are within the realm of an ordinary juror’s knowledge and experience, such determinations and the conclusions to be drawn therefrom must be made by the jury. [The three officers] were not eyewitnesses to the crime, they did not have any special familiarity with Ruffin, and they were not qualified as any type of experts in identification.

Id. (citation omitted); see Charles v. State, 79 So.3d 233 (Fla. 4th DCA 2012) (holding detective’s opinion testimony that defendant was person depicted in surveillance video invaded province of jury; detective was not eyewitness, had no special familiarity with defendant, and was not otherwise qualified as expert in video identification); Edwards v. State, 583 So.2d 740 (Fla. 1st DCA 1991) (reversing when officer, who employed informant to make controlled videotaped buy from appellant, but who did not witness buy firsthand, testified “he recognized appellant as the person shown on the tape making the sale to” informant).

As in Ruffin, Charles and Edwards, in this case, Detective Lane was not an eyewitness to the crime, had no special familiarity with Proctor, and was not otherwise qualified as an expert in video identification. The jurors should have been allowed to determine for themselves whether Proctor was the person shown in the surveillance video. Cf. Johnson v. State, 93 So.3d 1066 (Fla. 4th DCA 2012) (finding no error in officers’ identification on videotape based on their prior knowledge of defendant).

Similarly, Detective Lane should not have been permitted to testify that after comparing the signatures in the DAVID documents with the signatures on the bank checks, he believed “that [the checks] were written by the same person.” Detective Lane was not sufficiently familiar with Proctor’s handwriting to form a reliable opinion, and candidly admitted that he was not an expert in handwriting comparison. See Clark v. State, 114 So.2d 197, 203 (Fla. 1st DCA 1959) (reiterating that lay witness can identify person’s handwriting if witness is sufficiently familiar with handwriting to form reliable opinion but familiarity could not have been acquired for purpose of litigation); Charles W. Ehrhardt, Evidence, § 901.4, at 1057 (2011 ed.) (explaining that section 92.38, Florida Statutes, which allows jury comparison of disputed writing with genuine exemplar, has been construed to permit jury comparison only where expert or skilled witness has testified that disputed writing and exemplars were written by same person).

The error in admitting the detective’s identification and handwriting comparison testimony was not harmless. “[E]rror in admitting improper testimony may be exacerbated where the testimony comes from a police officer.” Martinez v. State, 761 So.2d 1074, 1080 (Fla.2000). There is the danger that jurors will defer to what they perceive to be an officer’s special training and access to background information not presented during trial. Id. After reviewing the record in its entirety, we cannot say beyond a reasonable doubt that the detective’s testimony did not influence the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”).

REVERSED and REMANDED for a NEW TRIAL.

SAWAYA and TORPY, JJ„ concur.

      . We find no merit in Proctor’s remaining issue on appeal.


author: MORRIS, Judge.

text:
    Kenneth A. BERDICK and Kostas, Inc., d/b/a Olive Tree, formerly a Florida for profit corporation, Appellants, v. Gabe COSTILLA; Anthony F. Pupo; Carmine Street NY Pizza & Mussels, a Florida limited liability company; Maria Longo; and Constantine Angeles, Appellees.
    No. 2D12-140.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 2012.
    Edward J. Maciak, P. Michael Villalo-bos, and James A. Crawford, II, of P. Michael Villalobos & Associates, LLC, Fort Myers, for Appellants.
    Burt H. Stutchin of Harris & Stutchin, PLC, Fort Myers, for Appellee Gabe Cos-tilla.
    No appearance for remaining Appellees.
   MORRIS, Judge.

Appellants Kostas, Inc., and Kenneth Berdick appeal a final judgment dismissing with prejudice their complaint against Gabe Costilla. We reverse and remand for further proceedings.

The complaint filed by appellants alleges that Gabe Costilla is the owner and landlord of commercial property he leased to Maria Longo through her power of attorney, Constantine Angeles. Longo leased the property for five years for the purpose of opening a restaurant. A corporation, Kostas, Inc., was formed to operate the restaurant. Longo and Angeles borrowed money from Kenneth Berdick to purchase fixtures and equipment for the restaurant; Longo and Angeles personally guaranteed three loans given to them by Berdick. Longo defaulted on the lease and was evicted by Costilla. The restaurant fixtures and equipment remained on the property. Costilla later leased the property to Anthony Pupo to operate Carmine Street N.Y. Pizza and Mussels.

Appellants filed their complaint against Costilla, Longo, Angeles, Pupo, and Carmine Street NY. Pizza and Mussels. The complaint alleged counts for declaratory judgment; injunctive relief; conversion against Costilla, Longo, and Angeles; and civil theft against Longo and Angeles. Costilla filed a motion to dismiss the complaint against him with prejudice, claiming that the complaint failed to state a cause of action. Costilla argued that Kostas, Inc., Angeles, and Longo were lessees on the lease agreement with Costilla, that Costilla has a landlord lien on the fixtures and equipment owned by Kostas, Inc., and that the lien is superior to any claim by Berdick. See § 83.08, Fla. Stat. (2010).

After a nonevidentiary hearing, the trial court granted Costilla’s motion to dismiss. The trial court entered a final judgment dismissing with prejudice the complaint against Costilla.

Appellants filed a motion for reconsideration, arguing that Costilla has a lien only against the lessee of the property, Longo. Appellants claimed that even though Cos-tilla presented a lease that listed Kostas, Inc., there was never an actual lease with Kostas, Inc., as a lessee.

A hearing was held on the motion for reconsideration at which appellants stated that the trial court granted the motion to dismiss after finding that

there was a landlord/tenant relationship between some parties and that Kostas, Inc., was a tenant to the extent that the landlord lien applied to the property of Kostas, Inc., which is a restaurant....
At that time, the question is who was the tenant because if Kostas, Inc., was not a tenant, then the lien doesn’t apply to Kostas, Inc., it only applies to the tenant and, Judge, ... I think that we can show that that was an incorrect holding at that time....

Appellants argued that Costilla’s copy of the lease listed Kostas, Inc., as a lessee but that that particular lease was not the operative version of the lease. Appellants argued that “there is definitely a question of fact as to who the tenant was at the time of the eviction and what lease controls the landlord/tenant lien.” In response, Costilla argued, among other things, that the copy of the lease in his possession indicates that Kostas, Inc., was an actual tenant. Costilla also argued that even if appellants’ version of the lease is operative, Kostas, Inc., was at the least an assignee or a subtenant of the lease by virtue of its status as the business operator of the restaurant. Costilla argued that “the landlord has a lien on the equipment whether the lease is made out to Maria Longo, Constantine Angeles[,] or Kostas.” The trial court stood by its prior ruling and denied the motion for reconsideration.

On appeal, appellants mainly argue that there is an issue of fact regarding which lease is the actual lease and that the trial court erred in going outside of the four corners of the complaint to determine that Kostas, Inc., was a lessee against whom Costilla has a landlord lien. We agree.

This court reviews de novo the final judgment of dismissal for failure to state a cause of action. See Meadows Cmty. Ass'n v. Russell-Tutty, 928 So.2d 1276, 1278 (Fla. 2d DCA 2006). “[I]n ruling on a motion to dismiss a complaint for failure to state a cause of action, [a court is] confined to a consideration of the allegations found within the four corners of the complaint.” Thompson v. Martin, 530 So.2d 495, 496 (Fla. 2d DCA 1988) (citing Bricker v. Kay, 446 So.2d 1151 (Fla. 3d DCA 1984)). “A motion to dismiss is not a substitute for a motion for summary judgment. ...” Id. (citing Dunnell v. Malone & Hyde, Inc., 425 So.2d 646 (Fla. 3d DCA 1983)). “The purpose of a motion to dismiss is to test the legal sufficiency of a complaint, not to determine factual issues.” Sealy v. Perdido Key Oyster Bar & Marina, LLC, 88 So.3d 366, 367-68 (Fla. 1st DCA 2012).

The record as a whole indicates that in granting Costilla’s motion to dismiss, the trial court concluded that Costilla has a landlord lien for the restaurant equipment at issue under section 83.08 because Kostas, Inc., was a lessee of the property. Section 83.08 provides the following:

Every person to whom rent may be due, the person’s heirs, executors, administrators[,] or assigns, shall have a lien for such rent upon the property found upon or off the premises leased or rented, and in the possession of any person, as follows:
(1) Upon agricultural products raised on the land leased or rented for the current year. This lien shall be superior to all other liens, though of older date.
(2) Upon all other property of the lessee or his or her sublessee or assigns, usually kept on the premises. This lien shall be superior to any lien acquired subsequent to the bringing of the property on the premises leased.
(3)Upon all other property of the defendant. This lien shall date from the levy of the distress warrant hereinafter provided.

(Emphasis added.) Section 83.08(2) clearly provides that Costilla has a superior lien against the property of the lessee or his or her sublessees or assignees, usually kept on the premises.

Because the trial court was limited to the four corners of the complaint, we must look to the complaint in determining whether the statutory lien asserted by Costilla applies in this case. The complaint alleged that Longo was the lessee on the lease with Costilla and that Kostas, Inc., was not a lessee on the lease. Therefore, based on those factual allegations alone, Costilla does not have a section 83.08 lien on property owned by Kostas, Inc., that would serve to defeat appellants’ claims against Costilla. The trial court erred in going outside of the complaint to consider the version of the lease offered by Costilla in determining that Kostas, Inc., was a lessee against whom Costilla holds a lien. This issue may later be ripe for a factual determination or summary judgment but was not proper at the motion to dismiss stage.

Costilla contends that regardless of whether Kostas, Inc., is listed on the lease as a lessee, the complaint admitted that Kostas, Inc., through Longo, was operating a restaurant on the property. Costilla claims that based on the facts as alleged in the complaint, Kostas, Inc., was essentially an assign or sublessee of Longo. See § 83.08(2). Costilla’s argument is without merit. “Pursuant to section 689.01, Florida Statutes [ (2010) ], an assignment or sublease for a lease with a terra of more than one year must be in writing and signed by the party to be bound with two subscribing witnesses.” Sorrels v. Rebecca’s Ice Cream, Inc., 696 So.2d 1313, 1315 (Fla. 2d DCA 1997). By operation of the statute of frauds, Kostas, Inc., was not a sublessee or assignee of the lease between Costilla and Longo because there was no written agreement to that effect. Therefore, Costilla does not have a lien against Kostas, Inc., as a sublessee or assignee, and the dismissal of the complaint should not be affirmed on this basis.

Costilla also argues that the claims in the complaint lack merit for several other reasons, but these reasons were not the basis for the trial court’s ruling and consideration of them would be premature at this point. Appellants allege that they should be permitted to amend their complaint to allege fraud against Costilla on the basis that Costilla allegedly created the false lease that he presented in support of his motion to dismiss. Again, this issue is not properly before this court and may be pursued on remand.

Because the trial court erred in ruling at this stage in the proceedings that Costilla has a landlord lien that defeats appellants’ claims against Costilla, we reverse the final judgment of dismissal and remand for further proceedings.

Reversed and remanded.

LaROSE and CRENSHAW, JJ., Concur.

      . The record on appeal does not contain a transcript of the hearing on Costilla's motion to dismiss.

      . In support of their argument, appellants pointed out that Costilla filed an earlier landlord-tenant action against Longo and that in that action, Costilla did not rely on the lease he was now asserting was the operative lease.


text:
    Marcus JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2429.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.
    James S. Purdy, Public Defender, and Ailene S. Rogers, 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.
   EVANDER, J.

Marcus Johnson timely appeals his convictions for armed burglary of a dwelling with an assault or battery and two counts of robbery with a firearm. We are compelled to reverse because of the trial court’s improper response to the jury’s request for a read-back of trial testimony.

The record reflects that during deliberations, the jury sent a note asking: “Would it be possible for us to get anything read back by the court reporter?” During the subsequent conference with counsel, the trial judge stated “I don’t do [read-backs].” Over defense counsel’s objection, the trial court then responded to the jurors’ question by advising them “to rely upon their collective memories of the testimony.”

Our decision is controlled by the Florida Supreme Court’s recent decision in Hazuri v. State, 91 So.3d 836 (Fla.2012). In Ha-zuri, the jury requested a trial transcript. Defense counsel recommended the trial court advise the jurors that although they were not entitled to receive transcripts, they could request the trial court have the court reporter read back testimony. Instead, over objection, the trial judge instructed the jurors to rely on their own collective recollection of the evidence. The Hazuri court held that notwithstanding a trial court’s broad discretion in determining whether to grant a read-back request, it may not use language “that would mislead a jury into believing read-backs are prohibited.” Id. at 846. As a result, the supreme court determined that Hazuri was entitled to a new trial. The relevant facts here are indistinguishable from those present in Hazuri. Accordingly, Johnson is entitled to a new trial.

We reject Johnson’s second argument— to-wit, that the sentence imposed by the trial court evidenced a presumption of vindictiveness.

AFFIRMED, in part; REVERSED, in part; REMANDED for new trial.

COHEN and JACOBUS, JJ., concur.


text:
    Patrick M. BADGETT, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2547.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.
    Timothy C. Houck, Melbourne, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Patrick M. Badgett, Senior, appeals the judgment and sentence imposed for Count I, trafficking in illegal drugs in violation of section 893.135(l)(c)l., Florida Statutes (2010), and Count VI, possession of methadone in violation of section 893.13(6)(a), Florida Statutes (2010). Pursuant to the State’s appropriate concession of error in the failure of the trial court to instruct the jury on Badgett’s “prescription defense,” we reverse and remand for a new trial. Williams v. State, 85 So.3d 1185, 1186 (Fla. 5th DCA 2012) (reversing for new trial where trial court was of the mistaken apparent belief that the prescription defense was only available to the prescription holder and thus did not instruct jury on that defense); State v. Latona, 75 So.3d 394, 395 (Fla. 5th DCA 2011) (“Section 893.13(6)(a), Florida Statutes (2009) permits an individual to legally possess a controlled substance where the controlled substance was obtained pursuant to a valid prescription. The prescription defense is available to the prescription holder and any individual authorized by the prescription holder to hold the medications on his or her behalf.” citing McCoy v. State, 56 So.3d 37, 39 (Fla. 1st DCA 2010) (holding prescription defense available to wife who asserted that she was holding her husband’s pills on his behalf); O’Hara v. State, 964 So.2d 839, 841 (Fla. 2d DCA 2007)).

REVERSED and REMANDED for new trial.

SAWAYA, EVANDER and COHEN, JJ., concur.

      . The new trial is ordered only as to Counts I and VI; Badgett’s plea of guilty to the drug offense charged in Count IV is unaffected by our disposition of this appeal.


text:
    Tanesha BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3075.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.
    Tanesha Brown, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s pro se motion to remove injunction. As the State correctly observes, the sentencing documents in the instant case do not contain any injunction/“no-contact” provisions.

AFFIRMED.

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    Donald BRANTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4584.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.

      James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Based on the State’s confession of error, we reverse and remand for resentencing. Branton is entitled to the appointment- of conflict-free counsel at the resentencing hearing. See Fletcher v. State, 890 So.2d 1167 (Fla. 5th DCA 2004).

REVERSED and REMANDED.

EVANDER, COHEN and JACOBUS, JJ., concur.


text:
    Mario A. PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1412.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.
    Mario A. Parker, Bowling Green, pro se.
    No Appearance for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

This Court issued a Spencer show-cause order directing the appellant, Mario A. Parker, to demonstrate why he should not be barred from filing further pro se challenges to his convictions and sentences in this case. We did so after affirming the denial of Parker’s successive pro se motion for postconviction relief. We find Parker’s response to our show-cause order to be unpersuasive and conclude he is abusing the judicial process.

Therefore, we now prohibit Parker from filing with this Court any more pro se pleadings concerning Orange County, Ninth Judicial Circuit Court, case number 1991-CF-1224. The Clerk of this Court is directed not to accept any further pro se filings from Parker concerning this case. Any additional pleadings or motions in this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing with The Florida Bar. See Johnson v. State, 652 So.2d 980, 980 (Fla. 5th DCA 1995) (prohibiting petitioner from filing further pro se pleadings after thirteen challenges to conviction and sentence); Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2010); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

PALMER, EVANDER and JACOBUS, JJ., concur.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


text:
    Robert J. AUMILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1522.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.
    Robert J. Aumiller, Carrabelle, pro se.
    Pamela Jo Bondi, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

In the past several years, Robert Aumil-ler has repeatedly filed frivolous pro se pleadings attacking sentences he received in a 1993 conviction and subsequent violation of probation in 2006. Months after filing his most recent appeal regarding a rule 3.800(a) Motion for Additional Jail Time Credit, Aumiller filed a “Notice of Voluntary Dismissal,” saying that he now recognizes his claim is not supported by the law so “there is no need to waste the judicial labor of this court any further.”

Jail credit claims by their nature are often time-intensive and difficult, and the frivolous claim in this case was yet another abuse of process by Aumiller. Due to Aumiller’s abuse of his right to pro se access by repeatedly filing frivolous appeals, we hereby ban Aumiller from filing future pro se pleadings with this Court concerning this case. See Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (defendant prohibited from further pro se filings regarding same case when pleadings have become “frivolous, an abuse of process, and a waste of the taxpayers’ money”); Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”).

The Clerk of this Court is therefore directed not to accept any further pro se filings concerning Osceola County Circuit Court Case No. 93-CF-1989 from Appellant, and any further pleadings will be summarily rejected by the Clerk unless filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to Appellant and the appropriate institution for consideration of available disciplinary procedures. See §§ 944.279(1), 944.28(2)(a), Fla. Stat. (2011). Rehearing will not be entertained.

Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Appellant and the Department of Corrections.

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


text:
    Matthew J. PLUCINIK, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1607.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.

      Matthew J. Plucinik, Orlando, pro se.
    Pamela Jo Bondi, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

In 2002, Matthew Plucinik entered into a written, negotiated plea agreement after he confessed to sexually battering a child under twelve years of age. He was allowed to plead to the reduced charge of attempted capital sexual battery. Despite that, he has filed numerous, all meritless, pleadings. He has now filed his second, sworn petition for habeas corpus, reasserting appellate counsel ineffectiveness. His pleadings are a clear abuse of the judicial process.

Additionally, as the State points out in its Response, “Plucinik has made allegations in his petition which are patently false and he has sworn they are true ‘under penalties of perjury.’ ” The State argues, and we agree, that because Plucinik made these allegations under oath, he has committed perjury. His mendaciousness is demonstrated by our own records as well as published opinions in his case.

We further agree with the State’s contention that sanctions pursuant to section 944.279(1), Florida Statutes, are appropriate. See Jones v. State, 18 So.3d 551 (Fla. 1st DCA 2008) (holding inmate’s submission of fabricated factual allegations in petition asserting ineffective assistance of appellate counsel warranted referral to DOC for appropriate disciplinary procedures). Indeed, regardless of the type of proceeding involved, perjury will not be tolerated. Svoboda v. State, 932 So.2d 545 (Fla. 5th DCA 2006) (holding petitioner’s false statement, made under oath at commissioner’s hearing on petition for belated appeal, warranted denial of his request for belated appeal and the additional sanction of DOC disciplinary procedures); Nixon v. State, 921 So.2d 819, 820 (Fla. 5th DCA 2006) (directing, in light of petitioner’s false statement made under penalty of perjury, that a certified copy of the opinion be forwarded to the appropriate institution for appropriate disciplinary procedures); Miller v. State, 917 So.2d 261, 263 (Fla. 5th DCA 2005) (“It appears Miller knowingly or with reckless disregard for the truth offered a false and materially altered document to this court in an attempt to influence the outcome of the appeal. Accordingly, ... by copy of this opinion, we direct that a certified copy of this opinion be forwarded to the appropriate institution to consider disciplinary procedures as provided by law”).

Having carefully reviewed Plucinik’s response to this Court’s show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), we conclude that he has provided no valid reason to be allowed continued pro se access to this Court. We hold that he is abusing the judicial process by filing both frivolous and untrue pleadings and that he should be barred from further pro se filings in Volusia County Seventh Circuit Case No. 02-1812-CFAWS. The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Matthew J. Plucinik, and any further pleadings will be summarily rejected by the Clerk unless filed by a member in good standing of The Florida Bar. The Clerk of this Court is therefore directed to forward a certified copy of this opinion to Plucinik and the appropriate institution for consideration of available disciplinary procedures. See § 944.28(2)(a), Fla. Stat. (2012). Rehearing will not be entertained.

Petition DENIED; Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Plucinik and the Department of Corrections.

SAWAYA, TORPY and JACOBUS, JJ., concur.


text:
    Jonathan M. MATHIEU, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2142.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.
    Jonathan M. Mathieu, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to the appellant to file a facially sufficient motion in the trial court, in the event that his earlier 2011 rule 3.800(a) motion was also found to be facially insufficient. See Johnson v. State, 60 So.3d 1045, 1051 n. 2 (Fla.2011).

PALMER, TORPY and JACOBUS, JJ., concur.


text:
    Goddu Messaih RIVERS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2651.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.

      Paula C. Coffman, Orlando, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with' the trial court and be treated as the notice of appeal from the order entered January 28, 2011, denying the motion for postconviction relief in case no. 2006-CF-14765, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Barbara Ann RITCHIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4088.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2012.
    Barbara Ann Ritchie, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, THOMAS, and CLARK, JJ., concur.


author: CRENSHAW, Judge.

text:
    SWAN LANDING DEVELOPMENT, LLC, Reza Yazdani, ITI Construction, LLC, Leonard S. Englander, and John W. Waechter, Appellants, v. FIRST TENNESSEE BANK NATIONAL ASSOCIATION f/k/a First Horizon Home Loan Corporation, Appellee.
    No. 2D11-3410.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2012.

      Jawdet I. Rubaii and Jack F. White, III of Jawdet I. Rubaii, P.A., Clearwater, for Appellants Swan Landing Development, LLC, Reza Yazdani, and iTi Construction, LLC.
    Leonard S. Englander and Courtney L. Fish of Englander and Fischer, LLP, St. Petersburg, for Appellants Leonard S. Englander and John W. Waechter.
    Marion Hale and Sharon E. Krick of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellee.
   CRENSHAW, Judge.

Swan Landing Development, LLC, Reza Yazdani, iTi Construction, LLC, (collectively referred to as Swan Landing) and their attorneys, Leonard S. Englander and John W. Waechter, appeal a final judgment imposing sanctions and awarding attorney’s fees to First Tennessee Bank, National Association (the Bank) under section 57.105, Florida Statutes (2010). In awarding the fees, the trial court concluded that there was no basis to support Swan Landing’s postjudgment motion filed under Florida Rule of Civil Procedure 1.540(b), and it found that the Bank was entitled to recover a total of $9356.25 from Swan Landing and $9356.25 from the attorneys. Because we conclude that the trial court abused its discretion in granting the Bank’s motion for sanctions under section 57.105, we reverse.

Following a final judgment of mortgage foreclosure entered against Swan Landing in favor of the Bank, Swan Landing received an audit inquiry letter confirming that they owed the Bank a balance of $357,164. This letter prompted Swan Landing’s attorneys to investigate whether the Bank had misrepresented at trial that it had given a $357,164 concession to Swan Landing for refinancing. Swan Landing sought to depose the Bank’s auditor to explain the audit inquiry letter. And because the audit inquiry letter appeared to contradict a material issue contested below, Swan Landing filed a motion to set aside the foreclosure judgment under rule 1.540(b). Noting that Swan Landing’s 1.540(b) motions “allege grounds which, if proven to exist, may constitute a basis for relief under the rule,” the trial court ordered the Bank to respond. The trial court thereafter entered an order summarily denying Swan Landing’s 1.540(b) motion. Following the summary denial of the motion, the trial court granted, without an evidentiary hearing, the Bank’s motion for sanctions and attorney’s fees under section 57.105.

A trial court’s ruling on a motion for fees based on section 57.105 is reviewed by this court for an abuse of discretion. See generally Bowen v. Brewer, 936 So.2d 757, 763 (Fla. 2d DCA 2006). Section 57.105(1) provides for the award of attorney’s fees in any action:

[I]n which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

“A finding that a party is entitled to recover attorney’s fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney’s fees or otherwise before the court and in the record.” Mason v. Highlands Cnty. Bd. of Cnty. Comm’rs, 817 So.2d 922, 923 (Fla. 2d DCA 2002).

We are compelled to conclude based on the facts of this case that the trial court abused its discretion in awarding fees under section 57.105. Rule 1.540(b) permits a trial court to relieve a party from a final judgment based, in part, on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing, ... fraud ..., misrepresentation, or other misconduct of an adverse party....” Here, the Bank’s audit inquiry letter, which was sent after entry of the final judgment of foreclosure, facially contradicted the Bank’s position at trial that the parties had agreed to a concession. And because Swan Landing’s efforts seeking an explanation of this contradiction proved unsuccessful, we conclude it was reasonable under these circumstances for Swan Landing and its attorneys to pursue the 1.540(b) motion.

We emphasize that section 57.105 should be applied with restraint “to ensure that it serves the purpose for which it was intended.” Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 419 (Fla. 1st DCA 2002). The purpose of section 57.105 “is to discourage baseless claims ... [and] not to cast a chilling effect on use of the courts.” Stevenson v. Rutherford, 440 So.2d 28, 29 (Fla. 4th DCA 1983). In this context, section 57.105 should not be construed to discourage a party from pursuing a color-able claim under rule 1.540. And because Swan Landing and its attorneys presented a colorable claim to support the 1.540(b) motion, we conclude that the trial court abused its discretion in granting the Bank’s motion for sanctions and fees under section 57.105. Accordingly, we reverse the award of attorney’s fees to the Bank under section 57.105.

Reversed.

NORTHCUTT, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . At trial, counsel for the Bank testified that the Bank had "foregone that [$]357,000,” and that the Bank "forewent,” and "agreed to that $357,000 concession.”