text:
    Juan C Jam GONZALEZ and Damaso Dominguez, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-415, 5D11-459.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant Juan C. Jam Gonzalez.
    Edwin H. Duff, III, Daytona Beach, for Appellant Damaso Dominguez.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for written opinion and certification but deny the motion for rehearing. The earlier disposition without opinion is withdrawn and replaced by this opinion.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael W. COLLINS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1787.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

GRIFFIN, PALMER and JACOBUS, JJ., concur.


text:
    Gabriel Vickey MOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3017.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

SAWAYA, LAWSON and EVANDER, JJ., concur.


text:
    Blake WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3366.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    Rehearing Denied April 4, 2012.
    Blake Ward, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Blake Ward appeals the summary denial of his rule 3.850 motion. In that motion, he claimed appellate counsel was ineffective for failing to cite to State v. Montgomery, 39 So.3d 252 (Fla.2010), and argued that the trial court improperly instructed the jury when it used Florida Standard Jury Instruction (Criminal) 6.6. However, Ward is incorrect in his contentions as his appellate counsel did raise the Montgomery issue on appeal. Instead, we elect to treat this appeal as a Based on the reasoning in Dill v. State, 79 So.3d 849 (Fla. 5th DCA 2012), we grant the petition and remand for a new trial. As in Dill, the First District Court of Appeal’s decision in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), was issued during the pendency of Ward’s direct appeal in our court.

For the reasons set forth in Burton v. State, _ So.3d _ (Fla. 5th DCA 2011), we again cite conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011).

The Writ of Habeas Corpus is GRANTED and this matter is REMANDED for a new trial.

PALMER, LAWSON and JACOBUS, JJ., concur.


text:
    William Gilmore SCHOLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3512.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

SAWAYA, LAWSON and EVANDER, JJ., concur.


author: CONNER, J.

text:
    Ronald REDINI, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1948.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.

      Steven C. Sessa, West Palm Beach, and Barbara J. Scheffer, Palm Beach Gardens, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Ronald Redini appeals the denial of his motion to suppress evidence of his possession of child pornography seized pursuant to a search warrant. The primary legal issue presented by this appeal is whether information supplied to law enforcement by Redini’s roommate was sufficient for the issuance of a search warrant. Redini contends the information supplied by his roommate was not sufficiently reliable to show probable cause to search. Redini also contends the affidavit in support of the warrant was defective because the detective preparing the affidavit omitted or misrepresented material facts. He further contends his roommate was a state agent and not a citizen-informant. We find the information by the roommate was sufficiently reliable to show probable cause to search; the trial court made correct rulings regarding the omissions or misrepresentation of material facts in the affidavit; and the roommate was not a state agent. Thus, we affirm the decision of the trial court denying the motion to suppress. The issue regarding the roommate being a state agent does not warrant discussion. The issue regarding the purported omissions or misrepresentation of material facts is discussed briefly. Most of our analysis revolves around the issue of whether the information from the roommate was sufficiently reliable to establish probable cause to search.

Factual Background and Trial Court Proceedings

The information concerning Redini’s possession of child pornography was provided to law enforcement in a taped sworn statement by D.C., Redini’s roommate of five months. D.C. was 19 at the time he spoke to law enforcement and Redini was 36. In preparing the affidavit to apply for a search warrant, the detective related the following information from D.C.’s taped statement: Redini and D.C. did not share a bedroom and were not romantically involved, but D.C. knew of Redini’s pedophile proclivities from a combination of experiences. D.C. had known Redini when he was a child and they both lived in Illinois. D.C. told the detective that Redi-ni had sexually touched his genitals when D.C. was 10. He was afraid to report the incident and Redini moved away from Illinois shortly after it happened. Shortly after moving into Redini’s apartment, D.C. learned that Redini had a collection of child pornography consisting of CDs, DVDs, and images stored in password-protected files on Redini’s computer. D.C. stated that Redini had shown him movies of boys, ages 9 to 13, engaging in oral and anal sex with adult men approximately ages 35 to 50. Redini also showed him webcam recordings of naked boys, ages 8 to 12, fondling themselves. D.C. informed the detective that Redini speaks with children on his webcam and masturbates. After giving his taped sworn statement, D.C. returned to the detective’s office and told him that Redini had a box in his closet that contained child pornography that D.C. wanted to show the detective.

The detective also stated in the affidavit that he accepted D.C.’s invitation to go to the apartment that D.C. shared with Redi-ni to view the alleged pornographic pictures. While the detective waited in the kitchen, D.C. went to Redini’s bedroom, where D.C. represented that he was permitted to go, and returned with a box of photographs. Thirteen of the photographs were of young boys, four of which showed the same two naked boys, ages 4 to 6, taking a bath, and a fifth picture of a naked boy, age 10 to 12. One of the pictures of the boys in the bathtub showed one of the boy’s genitals. The detective stated in the affidavit that none of the pictures were pornographic.

After the detective viewed the non-pornographic pictures of the naked boys, D.C. then volunteered to get allegedly pornographic computer discs that he had helped Redini move to the garage. The detective asked him to look for the discs, if he had permission to enter the garage, but D.C. was unable to find them. The detective did not disclose that information in the affidavit.

Also not disclosed in the affidavit is the fact that the detective asked D.C. to try to obtain the password for Redini’s computer, but D.C. could not acquire the password. Despite these nondisclosures, the detective represented in his affidavit, based on D.C.’s sworn taped statement, that Redini possessed an extensive collection of child pornography in his residence and on his computer.

The trial judge issued a search warrant based on the detective’s probable cause affidavit. In executing the search warrant, the detective seized two computers belonging to Redini. Based on images found on the computers, Redini was charged by information with possession of sexual performance by a child. He moved to suppress the evidence seized.

Despite being aware that D.C. was purportedly a victim of sexual abuse by Redini with possibly an ulterior motive, the trial judge nonetheless determined that D.C. was a citizen-informant. Because D.C. represented he had access to the areas where he looked when he invited the detective to Redini’s apartment, the trial judge concluded the search was not improper and D.C. was not a state agent. He also concluded that the detective’s affidavit of probable cause was flawed, “[b]ut just because it’s not a model, doesn’t mean that it’s not enforceable.” The trial court denied the suppression motion, whereupon Redini pled guilty, pursuant to a plea agreement, to three counts of possessing sexual performance by a child, preserving his right to appeal the denial of his motion to suppress.

Legal Analysis

As explained by Judge Altenbernd in Pilieci v. State, 991 So.2d 883, 892 (Fla. 2d DCA 2008):

“On a motion to suppress the fruits of a search in accordance with a warrant, a trial court examines whether the issuing magistrate had a substantial basis for concluding that probable cause existed, and this determination is made by examining the affidavit in its entirety.” State v. Vanderhors, 927 So.2d 1011, 1013 (Fla. 2d DCA 2006) (citing Garcia v. State, 872 So.2d 326, 329 (Fla. 2d DCA 2004)).... Because the magistrate was restricted to considering only the content of the application for the warrant that is equally available to the reviewing trial court, this review is perhaps more aptly described as a review involving “great deference.” See State v. Rabb, 920 So.2d 1175, 1180 (Fla. 4th DCA 2006) (citing United States v. Soderstrand, 412 F.3d 1146, 1152 (10th Cir.2005)). As explained in Illinois v. Gates, [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ]:
[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s determination of probable cause should be paid great deference by reviewing courts. A grudging or negative attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant [and] courts should not invalidate ... warrants] by interpreting affidavit[s] in a hyper-technical, rather than a commonsense, manner.
462 U.S. at 236, 103 S.Ct. 2317 (internal quotations and citations omitted).

If the trial court determines the affidavit in support of the search warrant is facially sufficient, the defendant can still challenge the lawfulness of the search by questioning the veracity of the allegations in the affidavit. Pilieci, 991 So.2d at 893. Intentionally or recklessly omitted facts, as well as intentionally or recklessly inaccurate facts, may be contested on a motion to suppress. Id.

In this case, the trial court conducted an evidentiary hearing to resolve the claims by Redini that the search was illegal because allegedly some significant facts were omitted from the affidavit and some of the facts were inaccurate. The trial court considered the evidence on those issues and determined that there was no intentional omission or misrepresentation of facts by the detective, and the inclusion of the facts Redini claims were omitted would not have altered the decision of the magistrate to issue the warrant. The trial court’s rulings on these matters are clothed with the presumption of correctness, and we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling. Id. at 894. We find no errors by the trial court concerning issues of omission or misrepresentation of facts in the affidavit.

The trial court’s determination that the affidavit was facially sufficient merits discussion. Viewing it as a “close call,” the trial court determined that the information supplied by D.C. to the detective was reliable and sufficient to establish probable cause to search. The trial court’s decision was grounded upon determining D.C. was a citizen-informant.

A citizen-informant has been described as one “who approaches the police in person to report criminal activity.” Baptiste v. State, 995 So.2d 285, 291 (Fla.2008). “A tip from a citizen[-]informant falls at the higher end of the reliability scale.” Id. More importantly, “[t]ips from known reliable informants, such as an identifiable citizen who observes criminal conduct and reports it, along with his own identity to the police, will almost invariably be found sufficient to justify police action.” J.L. v. State, 727 So.2d 204, 206 (Fla.1998). Some of the factors which tend to establish the reliability of information given by citizen-informants are 1) a citizen-informant is motivated by the desire to further justice, 2) a citizen-informant who directly approaches law enforcement may be held accountable for false statements, 3) a face-to-face tip provides the opportunity to observe the demeanor and evaluate the credibility of the informant, and 4) there is greater potential for reprisal by the defendant than an anonymous tip. Baptiste, 995 So.2d at 291.

Our review of the affidavit in support of the search warrant in this case satisfies us that there were sufficient facts alleged to establish the reliability of D.C.’s statements that Redini possessed child pornography on his computer. D.C. directly approached law enforcement and gave a sworn statement regarding Redini’s criminal conduct, for which D.C. could be held accountable (making the false report of a crime, as well as perjury). His face-to-face contact with the detective on more than one occasion provided the detective with the opportunity to observe his demeanor and evaluate his credibility. The magistrate could properly infer that the detective felt D.C.’s credibility was sufficient to justify his time and good faith effort to apply for and execute a search warrant. Finally, the fact that D.C. lived with Redini would indicate D.C. was willing to risk reprisal from Redini.

As discussed above, an additional factor which tends to establish the reliability of information given by citizen-informants is their motivation and desire to further justice. Redini contends that D.C.’s statement that Redini molested him when he was 10 suggests D.C. had a motive to make false accusations against him. For that reason, Redini argues, law enforcement and the magistrate should have viewed his statements with skepticism. In support of this argument, Redini relies on our decision in Dial v. State, 798 So.2d 880 (Fla. 4th DCA 2001), and the Fifth District’s decision in Roper v. State, 588 So.2d 330 (Fla. 5th DCA 1991). In both of those cases, the informants were identified, and they were living or had been living recently with the defendant at the time they went to law enforcement. However, the facts of Dial and Roper are very distinguishable from the facts in this case. In both of those cases, the informants went to law enforcement to make a criminal complaint because they were victims of domestic violence by the defendant. In the course of making their complaint, each informant also felt the need to accuse the defendant of a crime for which the informant was not a victim. In Dial and Roper, the defendant sought to suppress evidence of a crime that had nothing to do with the original complaint made to law enforcement by the informant. The reason evidence was suppressed by the appellate court in both cases is because the circumstances surrounding the informant going to the police station should have caused concern that the informant had a reason to fabricate an accusation against the defendant.

We view the circumstances of D.C.’s going to law enforcement in this case to be different. D.C.’s disclosure that he had been molested by Redini nine years earlier, coupled with his observation of Redini repeatedly observing child pornography and bragging about engaging in sex with young boys, supports the inference that he was reporting Redini’s behavior to protect other children and promote justice. Moreover, D.C.’s willingness to make such an embarrassing disclosure about himself to law enforcement was an additional indicia of reliability for his statements.

The affidavit also contains a detailed listing of observations and conversations D.C. had with Redini to describe how Re-dini “brought [D.C] into ‘his world’” of child pornography. That detailed description was consistent with common behavior of child pornographers generally as known to the detective from law enforcement training and experience discussed in the affidavit and is another factor to be considered in assessing the reliability of his statements.

Having determined the trial court made correct rulings on all the issues raised, we affirm the denial of the motion to suppress.

Affirmed.

WARNER and POLEN, JJ., concur.

      . The detective also seized D.C.’s computer to check and see if he might be involved in child pornography as well.


text:
    Latoya ENICH, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D11-305.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Bernard P. Perlmutter, Kele Stewart, and Carolina Guacci, University of Miami School of Law Children & Youth Law Clinic, and Samuel Leroy and Meghan Parasc-hak, Legal Interns, for appellant.
    Pamela Jo Bondi, Attorney General, and Charlyne “Khai” Patterson and Timothy Dennis, Tallahassee, and Kiernan Moylan, Ft. Lauderdale, Assistant Attorneys General, and Javier Ley-Soto, Department of Children & Families, and Saudia Simmons, Our Kids, Inc., for appellee.
    Before ROTHENBERG, SALTER, and EMAS, JJ.
   PER CURIAM.

This is an appeal from a final administrative order denying the renewal of appellant Latyoa Enich’s “Road to Independence” (RTI) stipend. Because the hearing officer erroneously interpreted section 409.1451(5)(b)6.i., Florida Statutes (2010), we remand for additional proceedings consistent with the correct interpretation of that statute.

Ms. Enich “aged out” of foster care in November 2009, upon her 18th birthday. She was awarded an initial one-year RTI stipend. During the first eight months of that year, she had a sporadic attendance record at COPE South and Miami-Dade College, and she did not take or pass the test required to obtain a graduate equivalency diploma (GED). She attributed her academic problems to her infant daughter’s recurring illnesses and the difficulties of obtaining transportation and day care.

In June 2010, after consultation with her independent living case manager and her guardian ad litem (a volunteer with a doctoral degree who had served as a GAL in approximately 50 cases and had worked with Ms. Enich since she was 14 years old), Ms. Enich enrolled as a full-time student in “Beauty Schools of America” in Homestead, Florida, near where she lived and could obtain day care for her daughter. Beauty Schools of America is an authorized post-secondary educational institution for purposes of the RTI program, and Ms. Enich had a tentative graduation date of April 25, 2011. Ms. Enich’s transcript (submitted during her administrative hearing) showed a “B”/3.0 average for her work at Beauty Schools completed through October 2010.

In October 2010, she applied to renew the stipend for another year. Although her independent living staff caseworker and first-level supervisor recommended renewal of her RTI stipend for another year, the Department of Children and Families denied renewal on the grounds that Ms. Enich had not made satisfactory academic progress during the preceding year. Ms. Enich appealed the denial. After an evi-dentiary hearing, an administrative hearing officer affirmed the Department’s denial of Ms. Enich’s RTI renewal application. This appeal followed.

The RTI Statute

Section 409.1451(5)(b)6.h. states the objective of the RTI stipend: “Funds are intended to help eligible young adults who are former foster children in this state to receive the educational and vocational training needed to become self-supporting.”

Section 409.1451(5)(b)6.i. contains the RTI stipend renewal requirements:

The department shall evaluate and renew each award annually, during the 90-day period before the young adult’s birthday. In order to be eligible for a renewal award for the subsequent year, the young adult must:
(I) Complete the number of hours, or the equivalent considered full time by the academic institution, unless that young adult has a recognized disability preventing full-time attendance, in the last academic year in which the young adult earned an award, except for a young adult who meets the requirements of s. 1009.41.
(II) Maintain appropriate progress as required by the educational institution, except that, if the young adult’s progress is insufficient to renew the award at any time during the eligibility period, the young adult may restore eligibility by improving his or her progress to the required level.

The Department’s interpretation of these provisions in connection with the renewal of Ms. Enich’s stipend altered the plain meaning of the statute. See Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So.3d 828, 841 (Fla.2011). The Department imposed a more stringent set of requirements upon Enich than the statute actually requires. In concluding that “[Enich] did not show proof of academic progress during the period of November 2009 through May 2010[,]” the Department required Ms. Enich to have made continuous progress during that time period, while at the same time overlooking the progress Enich made from May 2010 to the present date. A shift from unsuccessful academic efforts to successful vocational training may have been an appropriate choice by Ms. Enich after consultation with her guardian ad litem and independent living caseworker.

Also, even if Ms. Enich was deemed to have made insufficient progress during the November 2009 through May 2010 period, the statute provides that eligibility may be restored if a young adult improves his or her progress to the required level. Though restoration is discretionary rather than mandatory, the Department does not appear to have considered this latter portion of Section 409.1451(5)(b)6.i.(II).

Accordingly, we reverse and remand with instructions that Enich be provided a new hearing in light of the full and proper interpretation of the relevant statute.

      . “COPE” is a Dade County Public Schools program (Continuing Opportunities for Purposeful Education) allowing pregnant teens to remain in school.


text:
    Oniel PEDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1868.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Oniel Pedley appeals convictions for three counts of attempted first degree murder, one count of robbery with a firearm, and one count kidnapping while armed with a firearm. Originally, he received sentences of mandatory life in prison on the attempted murder counts and robbery count. On the kidnapping count, he received a sentence of ten years. The state recognized that it had misadvised the court regarding the mandatory sentences, and upon a motion to correct the sentences, the court resentenced Pedley to life with a mandatory minimum sentence of 25 years on the attempted murder counts and robbery count, but sentenced him to 25 years on the kidnapping count, thus increasing his sentence. The state concedes that this was an error, and we agree. We reverse the sentence on the kidnapping count and remand for reinstatement of the original ten-year mandatory sentence on this count.

We reject appellant’s claim of error in the jury instruction, as no objection was lodged at trial, and it does not amount to fundamental error.

Affirmed as to conviction; reversed as to sentence in accordance with this opinion.

WARNER, STEVENSON and CONNER, JJ., concur.


text:
    David HALL and Ellis Crisson, Appellants, v. REO ASSET ACQUISITIONS, LLC, Appellee.
    No. 4D10-2739.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Shaun Rice of De Armas, Millich & Rice, PL, Miami, for appellants.
    No appearance for appellee.
   PER CURIAM.

Based on McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170 (Fla. 4th DCA 2012), we reverse the final summary judgment of foreclosure. There is a material issue of fact as to appellee’s standing to foreclose. While the note introduced had a blank endorsement and was sufficient to prove ownership by appellee, who possessed the note, nothing in the record shows that the note was acquired prior to the filing of the complaint. The endorsement did not contain a date, nor did the affidavit filed in support of the motion for summary judgment contain any sworn statement that the note was owned by the plaintiff on the date that the complaint was filed. Therefore, appellee “failed to submit any record evidence proving that it had the right to enforce the note on the date the complaint was filed.” Id. at D336. Summary judgment was improperly entered where this question of fact remained.

Reversed and remanded for vacation of judgment and further proceedings.

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Douglas SMYTH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2849.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Douglas Smyth appeals an order summarily denying his multi-issue Rule 3.850 motion for post-conviction relief. We affirm the trial court’s denial of all of the claims except for one. In claim four, Smyth alleges that counsel failed to demand analysis of hair found in the victim’s underwear and such testing would have furthered Smyth’s claim of innocence as advanced at trial. This point of the motion was not specifically addressed either by the response filed in the trial court or the order denying relief.

Responding to this court, the state contends that the decision not to test the hairs in this case was strategic and allowed counsel to argue reasonable doubt based upon the state’s inadequate investigation. Thus, on the face of the record, the strategy is evident. This court has previously rejected a comparable argument that defense strategy was evident on the face of the record and remanded for an evidentia-ry hearing as to whether the claim represents a reasonable tactical decision. See O’Neal v. State, 54 So.3d 1071 (Fla. 4th DCA 2011).

Accordingly, we reverse only the portion of the order discussed above, and remand this case to the trial court for an evidentia-ry hearing as to that claim or for the attachment of those portions of the record that conclusively refute the claim. We affirm as to the remaining claims.

MAY, C.J., WARNER and CHELIN, JJ., concur.


text:
    Terrence TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2913.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation and sentence, but remand for entry of a written order of revocation, specifying the conditions appellant was found to have violated. See Petrie v. State, 980 So.2d 1209 (Fla. 4th DCA 2008).

WARNER, STEVENSON and CONNER, JJ., concur.


text:
    Roger LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5110.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.

      Antonio Bugge, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010). However, we note that this decision expressly and directly conflicts with Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011). See Fla. R.App. P. 9.030(a)(2)(A)(iv). We certify conflict and certify a question of great public importance:

DOES THE IMMIGRATION WARNING IN FLORIDA RULE OF CRIMINAL PROCEDURE 3.172(c)(8) BAR IMMIGRATION-BASED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS BASED ON THE UNITED STATES SUPREME COURT’S DECISION IN Padilla v. Kentucky, _ U.S. _, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)?

See Fla. R.App. P. 9.030(a)(2)(A)(v).

Affirmed; Conflict and Question Certified.

TAYLOR, GERBER and LEVINE, JJ„ concur.


text:
    Robert FLIPPEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1746.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Edwards v. State, 548 So.2d 656 (Fla.1989).

CIKLIN, GERBER and LEVINE, JJ., concur.


author: MONACO, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. UNLIMITED RESTORATION SPECIALISTS, INC., etc., Respondent.
    No. 5D11-2456.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.

      Elizabeth K. Russo of Killgore, Pearl-man, Stamp, Ornstein & Squires, Orlando, and of Russo Appellate Firm, P.A., Miami, for Petitioner.
    Kevin B. Weiss, of Weiss Legal Group, P.A., Maitland, for Respondent.
   MONACO, J.

Petitioner, State Farm Florida Insurance Company, seeks certiorari review of a final order entered by the appellate division of the Seventh Judicial Circuit Court, for Volusia County, Florida. The circuit court’s order affirmed a county court order that denied State Farm’s motion to compel an appraisal in connection with a claimed loss covered by a homeowner’s insurance policy issued by State Farm. Because the circuit court relied upon an administrative rule implementing the relevant statute that improperly expanded the scope of the statute, we grant certiorari relief.

The facts are not contested. A homeowner, Mr. Hinchman, who was the insured under the homeowner’s policy issued by State Farm, suffered water damage in his home as a result of a plumbing leak. State Farm provided coverage for the loss. Mr. Hinchman hired respondent, Unlimited Restoration Specialists, Inc., to perform remediation, disinfection, drying, and related work at the insured’s premises. The contract that Mr. Hinchman had with Unlimited Restoration required Unlimited Restoration to provide these services, and also assigned Mr. Hinchman’s rights under the insurance policy to it. Unlimited Restoration estimated the cost of repair to be $1,827.00, and billed State Farm for services rendered. State Farm, however, estimated the cost of repair at about $800, and did not pay the bill. Rather, it mailed a check for the lower amount to Unlimited Restoration and advised Mr. Hinchman that the check had been mailed. The check was subsequently refused.

State Farm then informed Mr. Hinch-man of his right to participate in the property insurance mediation program established by statute and implemented by the Department of Financial Services to aid in the resolution of just such controversies. The letter stated:

Based upon the review of the work performed and the water extraction charge being invoiced, no additional payment will be made for the water extraction services performed at your home by Unlimited Restoration. If you or Unlimited Restoration, who has obtained an assignment of benefits from you, disagree with our payment for the water extraction services completed and you, or Unlimited Restoration, do not elect your option to demand mediation (as discussed later in the letter) we hereby demand appraisal to resolve the issue of the amount of loss.

The letter went on to provide information about the mediation process, and with abundant clarity stated that State Farm was not requesting mediation.

Shortly thereafter, Unlimited Restoration agreed to participate in the mediation program. The mediation, however, im-passed. State Farm then sent a second letter demanding appraisal in accordance with the insurance contract. Unlimited Restoration, filed suit instead.

State Farm immediately moved to dismiss the complaint or to compel appraisal pursuant to the contract terms that made appraisal the compulsory means of resolving disputes over amounts of loss upon written demand by either party. Unlimited Restoration argued in its response that by State Farm participating in the mediation process it had waived its right to demand appraisal under the policy. In the view of Unlimited Restoration, section 627.7015(7), Florida Statutes (2008), rendered the appraisal provision void after an unsuccessful mediation. Section 627.7015 reads in pertinent part as follows:

(2) At the time a first-party claim within the scope of this section is filed, the insurer shall notify all first-party claimants of their right to participate in the mediation program under this section ....
(7) If the insurer fails to comply with subsection (2) by failing to notify a first-party claimant of its right to participate in the mediation program under this section or if the insurer requests the mediation, and the mediation results are rejected by either party, the insured shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder’s claims covered by the policy.

Unlimited Restoration relied in support of its position principally upon Rule 69B-166.031(10)(c), Florida Administrative Code. That rule stated that:

If the insured decides not to participate in this program or if the parties are unsuccessful at resolving the claim, the insured may choose to proceed under the appraisal process set forth in the insured’s insurance policy or by litigation, or by any other dispute resolution procedure available under Florida law.

The county court, agreeing -with Unlimited Restoration, denied State Farm’s motion to dismiss, and State Farm appealed to the circuit court. The circuit court affirmed the denial of the motion to dismiss or compel appraisal after examining section 627.7015 and the rule. State Farm now seeks second-tier certiorari in this court.

In conducting a “second-tier” review a district court of appeal must determine whether the circuit court afforded procedural due process and whether it applied the correct law. See Broward County v. G.B.V. Intern., Ltd., 787 So.2d 838, 843 (Fla.2001). A district court should grant second-tier certiorari “only when there has been a violation of a clearly established principle of law resulting in the miscarriage of justice.” Wekiva Springs Reserve Homeowners v. Binns, 61 So.3d 1190, 1191 (Fla. 5th DCA 2011) (emphasis added) (quoting Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010). We note that our sister court in the third district in United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009), granted certiorari review under somewhat similar circumstances because it concluded that: (1) the circuit court appellate division incorrectly interpreted and applied [the statutes]; (2) the circuit court’s interpretation and application of the applicable statutes were a departure from the essential requirements of law; and (3) the circuit court’s decision established a rule of general application for future county court cases, exacerbating the effect of the circuit court appellate panel’s legal error. Id. at 63; see also Yankey v. Dep’t of Hwy. Safety and Motor Vehicles, 6 So.3d 633 (Fla. 2d DCA 2009). Using these criteria, we conclude that certiorari review is appropriate for the present case, as well.

Section 627.7015 contemplates a waiver of the appraisal process by the insurer under two conditions. The first occurs if the insurer fails to notify a first-party claimant of its right to participate in the mediation program under this section. The second occurs if the insurer requests the mediation, and the mediation results are rejected by either party. Here, State Farm quite clearly notified the homeowner (and inferentially, his assignee) in writing of his right to participate in mediation and, equally clearly, State Farm did not request mediation. Thus, a reading of the statute leads to the conclusion that State Farm is entitled to enforce its appraisal rights under the contract. The statute does not address a circumstance where the insured requests mediation and the parties fail to reach an agreement. That was the interstitial space that the rule sought to fill. There was, however, no statutory authority to underpin that part of the rule.

The county court and the circuit court read the portion of the rule that said that if the parties are not successful at mediation, “the insured may choose to proceed under the appraisal process set forth in the insured’s insurance policy or by litigation. ...” That reading of the rule led the lower courts to reason that the insured could proceed directly to litigation without first undertaking the appraisal process that was demanded by the insurer. The result arrived at by the circuit and county courts might be justified except that it is at odds with the plain language of the statute.

The rule modified and enlarged the statute when it allowed the insured the choice of how to proceed following an unsuccessful mediation that the insured, itself, requested. That option is simply not contained within the statute. The statute only contemplates a waiver of appraisal when the insurer fails to notify the insured of the right to mediation, or the insurer itself requests mediation and mediation is unsuccessful. Neither of those conditions occurred here. Courts must not “defer to an agency’s construction or application of a statute ... if the agency’s interpretation conflicts with the plain and ordinary meaning of the statute.” Florida Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 848 (Fla. 1st DCA 2002). Concomitantly, an administrative rule may not enlarge, modify or contravene the provisions of a statute. Willette v. Air Products, 700 So.2d 397, 401 (Fla. 1st DCA 1997) (quoting State, Dep’t of Bus. Regulation v. Salvation Ltd., Inc., 452 So.2d 65, 66 (Fla. 1st DCA 1984)). In the present case the rule, as interpreted by the lower courts, was wrong. State Farm is entitled to enforce the appraisal provisions under the contract of insurance that it issued.

Section 627.7015(1), Florida Statutes, sets forth the purpose and scope of the statute. After outlining the benefits of mediation in advance of an adversarial process, it includes this provision:

This section is available with respect to claims under personal lines and commercial residential policies for all claimants and insurers prior to commencing the appraisal process, or commencing litigation.

(Emphasis added). Thus, the legislature clearly intended the mediation process simply to be an additional step, and otherwise not to interfere with the contract rights of the parties, except where the insurer fails to notify the policy holder of the right to mediation, or except where the insurer requests mediation and there is a subsequent impasse, as indicated in subsection (7). Otherwise the insurance contract is fully enforceable. Indeed, the fourth district upheld the constitutionality of the statute in Florida Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n, Inc., 33 So.3d 48, 53 (Fla. 4th DCA 2009), decision quashed, 67 So.3d 187 (Fla.2011), primarily because it did not interfere with the private contract except in a “minimal way.” It pointed out, in addition, that “[mjediation in advance of the (appraisal) process could substantially reduce costs.” Id.

Accordingly, we grant the petition for certiorari and remand for further consideration consistent with this opinion.

PETITION FOR CERTIORARI GRANTED.

GRIFFIN and LAWSON, JJ., concur.

      . Fighting through the quagmire of rules associated with the rulings in this case is no easy task. The county court relied on Rule 69B-166.031(10)(c), Florida Administrative Code, while the circuit court relied on Rule 690-166.031(10)(c), Florida Administrative Code. The language from the two separate rules relied upon by each court, however, is identical, although it should be noted that 69B-166.031, Florida Administrative Code, no longer exists. In September 2008, Rule 69B-166.031 was transferred to Rule 69J-166.031. In 2009, when the water damage and mediation issue arose in the present case, Rule 69J-166.031 was almost identical to Rule 690-166.031, and both rules included the language relied upon by the lower courts and quoted in the main body of this opinion concerning what happens when an insured "decides not to participate in this program or if the parties are unsuccessful at resolving the claim.” Oddly, in September 2009, Rule 69J-166,031 was amended by the elimination of that language. Rule 690-166.031, however, was not similarly amended.

      . The Florida Supreme Court quashed the fourth district’s decision because it misapplied the test for retroactivity.


text:
    Tina Lynn SOPP, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2341.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Tina Lynn Sopp appeals from judgments and sentences for possession of oxycodone, driving under the influence, providing a false name to a law enforcement officer, and driving while license suspended, challenging the denial of a dispositive motion to suppress evidence and challenging her drug possession conviction based upon the constitutional analysis in Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011).

We affirm as to the suppression issue without further comment, and reject the constitutional claim for the reasons expressed in Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

AFFIRMED.

MONACO, LAWSON and COHEN, JJ., concur.


text:
    Vontavious Ternard LAMBERT, et al., Appellant, v. STATE of Florida, Appellee.
    Nos. 5D11-3150, 5D11-3208, 5D11-3209, 5D11-3444, 5D11-3449, 5D11-3450.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

MONACO, TORPY and COHEN, JJ., concur.


author: LEWIS, J.

text:
    Michael GOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5400.
    District Court of Appeal of Florida, First District.
    March 26, 2012.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Michael Golden appeals his convictions and sentences for felony battery with great bodily harm and aggravated assault with a deadly weapon. Golden contends that we should reverse his convictions and sentences, as well as the underlying order withdrawing his original plea, because the trial court lacked jurisdiction to withdraw his previously entered plea and sentence once imposed. We agree and reverse.

On June 18, 2009, Golden was charged by information with aggravated battery with a deadly weapon. On February 25, 2010, Golden entered a plea of nolo conten-dere as charged and was placed on five years’ probation. On March 5, 2010, the trial court entered and filed the written order of probation, nunc pro tune February 25, 2010.

On March 81, 2010, Golden filed a pro se motion to withdraw plea. On April 13, 2010, the trial court enter an order on Golden’s pro se motion finding, in pertinent part, as follows: “Defendant’s Motion to Withdraw Plea is hereby denied as insufficient and moreover is stricken inasmuch as Defendant was represented by counsel and counsel was never relieved.” On April 15, 2010, Golden’s counsel filed a motion to withdraw plea, which adopted and modified Golden’s pro se motion to ■withdraw plea. The motion alleged that Golden had entered the plea because he and his counsel believed the sentence in this case would be concurrent with his violation of probation sentence in a Gadsden County case. Counsel asserted that Golden was assured that his sentence in the Gadsden County case would be concurrent with his sentence in this ease and he would not have pled out in this case but for this assurance. The motion further alleged that the State reneged on the plea agreement to a concurrent sentence and that Golden did not get what he bargained for; therefore, he should be allowed to withdraw his plea in this case.

On April 29, 2010, and May 6, 2010, the trial court conducted hearings on Golden’s counsel’s motion to withdraw plea. At the first hearing, Golden’s counsel informed the trial court that he had adopted Golden’s pro se motion to withdraw plea. After finding counsel’s motion to withdraw plea timely, the trial court indicated that it would consider the merits of counsel’s motion. However, the trial court continued the hearing after counsel for the State informed it that he could not provide the trial court with any argument on the merits because he was not assigned to the case. When the hearing resumed on May 6, 2010, the State agreed with counsel’s motion to withdraw plea and, based on the State’s stipulation, the trial court granted counsel’s motion.

On June 18, 2010, the State filed an amended information charging Golden with one count of aggravated battery causing great bodily harm and one count of aggravated assault with a deadly weapon. After a jury trial, Golden was found guilty of the lesser included offense of felony battery with great bodily harm and as charged of aggravated assault with a deadly weapon. Golden was sentenced to forty-eight months’ imprisonment on the lesser included offense of felony battery with great bodily harm and forty-eight months’ imprisonment on the count of aggravated assault with a deadly weapon, with both sentences to be served concurrently. This appeal follows.

We must decide whether the trial court reversibly erred in finding the motion to withdraw plea timely and in subsequently granting the motion to withdraw plea. A post-sentencing motion to withdraw plea is governed by Florida Rule of Criminal Procedure 3.170(i), which provides as follows:

A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

We have previously held that the thirty-day limit under 3.170(i), which starts running after rendition of the sentence, is jurisdictional. Gafford v. State, 783 So.2d 1191, 1192 (Fla. 1st DCA 2001). Consequently, once this thirty-day limit passes, the trial court loses jurisdiction, and “[a] [djefendant cannot confer jurisdiction on the trial court by waiver, acquiescence, estoppel or consent.” State v. Schafer, 583 So.2d 374, 376 (Fla. 4th DCA 1991), review dismissed, 598 So.2d 78 (Fla.1992).

Pursuant to rule 3.170(i), Golden’s counsel had until April 4, 2010, to timely file a motion to withdraw plea. Counsel’s subsequently filed motion to withdraw plea did not revive Golden’s pro se motion as the trial court, prior to counsel filing the subsequent motion, had already denied and stricken Golden’s pro se motion. As such, there was no pending motion to adopt and it could not be revived. Assuming arguendo that the trial court properly allowed Golden’s counsel to adopt the pro se motion, the effective date of an adopted pro se motion is the date it is adopted and not the initial date the unauthorized pleading was filed. See State v. Craven, 955 So.2d 1182, 1184 (Fla. 4th DCA 2007) (holding “that in the context of pro se speedy trial pleadings, if the trial court permits defense counsel to adopt the pro se pleadings, the effective date should be the actual date of adoption, not the date on which the unauthorized pleadings were filed.”) (emphasis in original). “To allow such a relation-back would swallow the ‘nullity’ rule_” Id. Thus, counsel’s motion to withdraw plea filed on April 15, 2010, was untimely as it was filed more than thirty days after the trial court’s acceptance of Golden’s plea and the entry of the written order on March 5, 2010, imposing the sentence of five years’ probation. As such, the trial court reversibly erred in finding the motion to withdraw plea timely. Furthermore, since the thirty-day limit under 3.170(() is jurisdictional, the trial court lacked the authority to grant the untimely motion to withdraw plea.

Accordingly, we reverse Golden’s convictions and sentences based on the jury verdict, as well as the underlying order withdrawing Golden’s original plea, and remand with instructions to reinstate Golden’s five-year probationary sentence. Golden is entitled to credit against the reinstated sentence for time served in prison on the sentences here vacated.

REVERSED and REMANDED with instructions.

ROBERTS and RAY, JJ., Concur.


author: SILBERMAN, Chief Judge.

text:
    Ashok KUMAR, Appellant, v. Sujata KUMAR, Appellee.
    No. 2D10-5546.
    District Court of Appeal of Florida, Second District.
    March 28, 2012.
    David M. Caveda and Joy Ann Demas of Caveda Law Firm, P.A., Tampa, for Appellant.
    Virginia R. Vetter, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Ashok Kumar, the Former Husband, seeks review of the final judgment of dissolution of his marriage to Sujata Kumar, the Former Wife. We reverse and remand for reconsideration of the equitable distribution scheme based on three errors therein. First, the trial court erroneously designated the Former Wife’s jewelry as nonmarital property. Second, the court erroneously valued the Bank of America certificate of deposit awarded to the Former Husband as of the date of filing. And third, the court erred in failing to equitably distribute the contents of the marital home.

As to the Former Wife’s jewelry, which was valued at $15,000, the Former Wife concedes that the evidence does not support the court’s designation of these assets as nonmarital. While the Former Wife suggests that the $15,000 error was not significant enough to merit correction, we are unable to agree.

As to the Bank of America CD, the Former Husband testified that he consolidated three marital Bank of America CD accounts after the petition for dissolution was filed. While the preconsolidation value of the CDs totaled $255,733.31, the Husband testified that the value of the consolidated CD had risen to $295,775.92 at the time of trial. The trial court erred in valuing the CD as of the date of filing due to its passive appreciation. See Parry v. Parry, 933 So.2d 9, 14 (Fla. 2d DCA 2006).

As to the contents of the marital home, the trial court acceded to the Former Wife’s request that it defer the equitable distribution of these assets in favor of mediation. The court therefore ordered the parties to attempt to agree on a distribution of these assets and reserved jurisdiction on the issue. This failure to distribute all of the parties’ marital assets without the Former Husband’s assent was erroneous. See McAvoy v. McAvoy, 662 So.2d 744, 745 (Fla. 5th DCA 1995) (holding that the trial court erred in failing to equitably distribute an asset because “the parties are entitled to a final distribution of their assets and liabilities at the time of dissolution”); Collinsworth v. Collinsworth, 624 So.2d 287, 290 (Fla. 1st DCA 1993) (holding that the trial court erred in reserving jurisdiction to determine whether to partition the marital home because, “[i f the issue was ripe, the circuit court was required to rule thereon without reserving jurisdiction and deferring decision on that issue at a future date”).

We therefore reverse the equitable distribution scheme with directions for the trial court to (1) equitably distribute the Former Wife’s jewelry, (2) revalue the Former Husband’s consolidated Bank of America CD and adjust the equitable distribution scheme accordingly, and (3) equitably distribute the contents of the marital home. We affirm the remaining portions of the final judgment of dissolution of marriage.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and MORRIS, JJ., Concur.


author: VILLANTI, Judge.

text:
    Michael PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5190.
    District Court of Appeal of Florida, Second District.
    March 28, 2012.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Michael Phillips appeals the revocation of his probation and the sentence imposed upon revocation. We affirm the revocation of Phillips’ probation and the sentence imposed after the trial court granted Phillips’ motion to correct sentencing error filed pursuant to Florida Rule of Criminal Pro-eedure 3.800(b)(2). However, the written order of revocation incorrectly states that Phillips admitted to the violation of his probation. On remand, the trial court shall enter a corrected order of revocation reflecting that Phillips was found to have violated his probation after an evidentiary hearing.

Affirmed but remanded with directions.

DAVIS and CRENSHAW, JJ., Concur.


text:
    Gerald Andre SHIFLET, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5359.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Gerald Andre Shiflet, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In 1980, Gerald Shiflet was sentenced to 150 years in prison, with the trial court retaining jurisdiction over the first third of that sentence pursuant to section 947.16, Florida Statutes. In this appeal, Shiflet challenges an order denying his motion asking the trial court for early termination of its retained jurisdiction. We treat the instant appeal as a petition for writ of certiorari and deny the same without prejudice to the trial court’s right to terminate its retained jurisdiction should the parole board order early release. See Blackwelder v. State, 647 So.2d 991 (Fla. 2d DCA 1994).

WARNER, STEVENSON and CONNER, JJ., concur.


text:
    J.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3029.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.

      Carey Haughwout, Public Defender, and Travis Dunnington, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, J.B., appeals the revocation of his probation for committing the new offense of burglary of an unoccupied dwelling and for failing to complete required community service hours. We find no merit in appellant’s contention that the finding of a violation of probation for the burglary was based solely on hearsay. See generally Robinson v. State, 74 So.3d 570, 571-72 (Fla. 4th DCA 2011) (holding violation of probation sufficiently based on a combination of hearsay and non-hearsay evidence).

We, however, reverse the trial court’s finding of a violation of probation based on appellant’s failure to complete the required community service hours. Appellant’s probation officer began supervising appellant in February 2010. The officer testified that, prior to February 2010, appellant had not completed the required minimum of ten hours per month. Since the officer did not supervise appellant during the period of the alleged violation, his testimony was based only on his review of appellant’s file. The state was required to move these records into evidence under the business records exception to the hearsay rule to substantiate the alleged violations. See M.M. v. State, 839 So.2d 881, 882 (Fla. 4th DCA 2003); Bertoloti v. State, 831 So.2d 1281, 1281-82 (Fla. 4th DCA 2002). “As it stands, Appellant’s probation was revoked solely on the basis of hearsay.” Bertoloti, 831 So.2d at 1282.

Accordingly, we remand for the trial court to reconsider whether it would have imposed the same sentence if faced with only the supported violation. See Whitehead v. State, 22 So.3d 846, 849 (Fla. 4th DCA 2009); Brown v. State, 12 So.3d 877, 879-80 (Fla. 4th DCA 2009).

Affirmed in part, Reversed in part, and Remanded.

CIKLIN, GERBER and LEVINE, JJ., concur.


text:
    Juan SALMERON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1664.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Juan Salmerón, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Juan Salmerón appeals the trial court’s order summarily denying his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Salmerón raised five grounds in his motion, which the trial court denied for the reasons contained in the State’s response, inclusive of all attachments. We affirm as to all claims and write only to address an issue raised in Salmeron’s initial brief. While Salmerón is correct that the State’s response failed to address his fourth claim — regarding the trial court’s alleged failure to orally adjudicate the defendant guilty of all counts — this claim is conclusively refuted by portions of the record attached to the State’s response and incorporated into the order denying postconviction relief. We therefore affirm.

STEVENSON, GROSS and TAYLOR, JJ., concur.


text:
    Thomas CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4772.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Thomas Curry, Live Oak, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, POLEN and CIKLIN, JJ., concur.


text:
    Ibran EADY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1764.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, STEVENSON and CONNER, JJ., concur.


text:
    Demetrius CAREY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-4922.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Demetrius Carey, Bowling Green, pro se.
    No response required for respondent.
   PER CURIAM.

We deny Demetrius Carey’s petition for writ of habeas corpus alleging one claim of fundamental error in light of the Florida Supreme Court’s decision in State v. Montgomery, 39 So.3d 252 (Fla.2010).

Then fourteen-year-old Carey was charged with first-degree murder and robbery with a firearm after shooting and killing victim Elene Carrasco during the course of a robbery. Following a jury trial, Carey was convicted of the lesser-included offenses of second-degree murder and robbery. He directly appealed his judgment and sentence, which this court per curiam affirmed.

On direct appeal, Carey claimed that the manslaughter jury instruction was fundamentally erroneous and resulted in the jury being incorrectly instructed on the next lesser-included offense from the conviction. He relied on Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), wherein the First District determined that the standard jury instruction for manslaughter by act is flawed where it suggested that “intent to kill” is an element of the crime. At the time of Carey’s appeal, discretionary review was pending in the Florida Supreme Court.

The supreme court approved the First District’s ruling on April 8, 2010, finding that the standard jury instruction on manslaughter did constitute fundamental error as it required the jury to find that the defendant intended to kill the victim. See Montgomery, 39 So.3d at 252. Carey seeks renewed relief based upon this holding.

In Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010), this court distinguished Montgomery from instances in which a jury is also instructed on culpable negligence:

The court in Salonko v. State, [42 So.3d 801 (Fla. 1st DCA 2010) ], found this extra instruction to be enough to distinguish the case from Montgomery, explaining that the fundamental error in Montgomery “does not exist when the trial court gives an instruction on manslaughter by culpable negligence.” “Although the jury found, by its second-degree murder verdict, that Appellant did not intend to kill the victim, based on the instructions given, it could have returned a verdict for the lesser-included offense of manslaughter by culpable negligence while still honoring its finding that there was no intent to kill.”

Singh, 36 So.3d at 851; see also Nieves v. State, 22 So.3d 691, 692 (Fla. 2d DCA 2009) (“Furthermore, unlike Montgomery ..., the jury in Nieves’ case was also instructed on the lesser-included offense of manslaughter by culpable negligence.”). In Carey’s case, the jury was instructed on culpable negligence. Under Singh, Carey is not entitled to relief.

Carey further argues that the State failed to present any evidence that would have warranted the culpable negligence component of manslaughter. He relies on the Second District case, Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011), which affirmed Haygood’s second-degree murder conviction:

[Bjecause the trial court gave the jury both the erroneous manslaughter by act instruction and the culpable negligence manslaughter instruction. However, the Haygood court noted that “[ajrguably, the evidence presented at trial is inconsistent with a theory of manslaughter by culpable negligence.” Id. at 271. Because of this, the court certified a question regarding whether the error in the manslaughter by act instruction is fundamental when the jury is also instructed on a culpable negligence theory of manslaughter even though the evidence does not support that theory. Id.”

Pollock v. State, 64 So.3d 695, 697 (Fla. 2d DCA 2011) (italics emphasis added). The Florida Supreme Court has accepted discretionary review of Haygood.

Notwithstanding the supreme court’s ultimate determination, we do not find Hay-good to be controlling as our analysis is not wholly dependent upon the culpable negligence instruction having been given. The concerns raised by the First District in Montgomery do not apply here. The manslaughter jury instruction in Montgomery stated that:

1. (Victim) is dead.
2. a. (Defendant) intentionally caused the death of (victim).

Montgomery, 39 So.3d at 256. This led to confusion whereby the jurors may have thought that they had to find that Montgomery intentionally caused the death of the victim, even though intent is not a requirement for manslaughter.

The instruction given in Carey’s case, however, is distinguishable as it called upon jurors to determine that (a) the victim was dead and (b) that the death was caused by an intentional act by Carey (or culpable negligence). The language used in Carey’s case would be acceptable as it did not confuse jurors into thinking that Carey intended to cause the victim’s death, only that his act was intentional. As explained in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), and approved by our supreme court:

The manslaughter by act instruction would be more accurate if it provided that the State was required to prove that the defendant “committed an intentional act that caused the death of the victim.” Because this language is not present, the instruction is misleading.

Id. at 607 (emphasis added). Here, unlike in Montgomery, the jury was instructed that the victim’s death was caused by an intentional act by Carey. We, therefore, find that fundamental error did not occur in this case and deny the petition.

Petition Denied.

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    ESTES BAYPOINT PROPERTIES, INC., a dissolved Florida corporation, Tighe Estes, Tague Estes, Troy Estes and Janice Estes, individuals, Appellants, v. THIRTY THIRD COURT, LLC, a Florida limited liability company, Appellee.
    No. 4D11-1007.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Rehearing Denied April 26, 2012.
    Philippe Symonovicz of Law Offices of Philippe Symonovicz, Fort Lauderdale, for appellants.
    Roger D. Mason, II, of Petruccelli Mason, LLP, Tampa, for appellee.
   PER CURIAM.

Affirmed. See Above Par Loss Prevention, Inc. v. Albano, 983 So.2d 775 (Fla. 4th DCA 2008).

POLEN, HAZOURI and LEVINE, JJ., concur.


author: BENTON, C.J.

text:
    Basilio CORRALES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6459.
    District Court of Appeal of Florida, First District.
    March 29, 2012.

      Clyde M. Taylor, III of Taylor & Taylor, P.A., St. Augustine and Clay B. Adkinson of the Adkinson Law Firm, LLC, Defuniak Springs, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

Basilio Corrales appeals his conviction for failing to appear “before any court ... as required,” in violation of section 843.15(l)(a), Florida Statutes (2009). He contends there was no proof of willfulness — or any evidence that he was even aware that the hearing he failed to attend had been scheduled. We reverse.

On September 21, 2009, Mr. Corrales was arrested on three drug charges, then released on bond two days later. At a hearing on April 8, 2010, he appeared through counsel, but was not present personally. At the April 8 hearing, the case was continued ore terms to April 22, 2010. After Mr. Corrales failed to appear at the April 22 hearing, a capias issued, and he turned himself in on June 17, 2010. The next day the state amended the information to add another charge: “Failure to Appear” on April 22, 2010.

The jury acquitted on the drug charges but found appellant guilty of failure to appear at the April 22, 2010 hearing. At trial, the state put the capias in evidence, and Joy Mason, an employee of the Walton County Clerk of Court, testified that appellant was given oral notice of the April 22 hearing “through his defense attorney on April the 8th.” On cross-examination, Ms. Mason testified that she did not know why appellant missed the date or whether anyone in the clerk’s office had ever spoken to Mr. Corrales. Ms. Mason also confirmed that the clerk’s office had an address for Mr. Corrales and had mailed notices to him in the past, but that it did not mail him notice of the April 22 hearing.

Immediately after Ms. Mason’s testimony, the state rested and Mr. Corrales moved for judgment of acquittal. He argued that the state had put on no evidence that his failure to appear was willful, and specifically that the jury could not infer willfulness or intent in the absence of any evidence he ever received notice. The trial court denied the motion.

To convict under section 843.15(l)(a), Florida Statutes (2009), requires proof of willfulness beyond a reasonable doubt. See Williams v. State, 876 So.2d 27 (Fla. 1st DCA 2004). While there is no standard jury instruction for offenses under section 843.15, we upheld the use of an instruction in one prosecution under section 843.15 in which the jury was told that “[wjillfully means intentionally, knowingly, and purposely.” Patterson v. State, 512 So.2d 1109, 1109-10 (Fla. 1st DCA 1987). The willfulness requirement assures that “no one will be convicted of a crime because of a mistake or because he does something innocently, not realizing what he was doing.” United States v. Hall, 346 F.2d 875, 879 (2d Cir.1965) (approving trial judge’s response to jury’s question concerning meaning of willfulness).

The Fifth District has ruled categorically that the crime of failure to appear is not proven where the accused was not notified to appear. See Lewis v. State, 380 So.2d 1191 (Fla. 5th DCA 1980) (“Because the evidence is unrefuted that the accused was not notified to appear, we must deem the failure to appear to be not willful and thus not a crime.”). See also Williams, 876 So.2d at 27 (conviction reversed where evidence, viewed in a light most favorable to the state, showed that defendant was never given notice that his hearing date had been changed).

In the present case, the state offered no evidence that Mr. Corrales was personally notified or that he willfully failed to appear. The state relied solely on oral notice given to Mr. Corrales’ attorney in open court when the appellant was not present. To be sure, notice to an attorney may sometimes be imputed to the client. Counsel may bind her client in civil litigation in ways that are not allowed in criminal proceedings. See Reizen v. Fla. Nat’l Bank at Gainesville, 237 So.2d 30 (Fla. 1st DCA 1970) (holding service of papers upon attorney was an adequate predicate for civil contempt judgment, whether or not client had notice). See also State v. White, 794 So.2d 682, 683 (Fla. 2d DCA 2001) (reversing dismissal on statute of limitations grounds because “[e]ven if White did not have personal knowledge that the information was filed ... his attorney did”); State v. Grooms, 389 So.2d 313, 314 (Fla. 2d DCA 1980) (holding defendant’s failure to appear for trial of which counsel had notice precluded later discharge under speedy trial rule).

But none of these cases stands for the proposition that a citizen may be guilty of a crime based solely on notice to his attorney. See State v. Blackbird, 187 Mont. 270, 609 P.2d 708, 710 (1980) (finding a jury instruction for bail-jumping erroneous where it allowed the jury to presume a “client has notice and knowledge if his attorney has notice and knowledge”). To convict under section 843.15(l)(a) requires proof that the nonappearance was knowing and willful. We have found evidence of willfulness where a defendant gave a false name when arrested and bonded out, not to be heard from again until an unrelated arrest, Johnson v. State, 530 So.2d 1036 (Fla. 1st DCA 1988); and where the defendant had taken deliberate actions to evade all communications from his counsel and the bondsman to avoid receiving any notice, as in McGee v. State, 438 So.2d 127, 129-30 (Fla. 1st DCA 1983). See also Godwin v. State, 501 So.2d 154, 155-56 (Fla. 1st DCA 1987) (finding, in dicta, that willfulness could not be proven merely by showing that defendant knew jury selection was occurring and claimed an illness prevented his attendance). Cf. Wilson v. State, 776 So.2d 347, 349-50 (Fla. 5th DCA 2001) (fact that defendant left the courthouse after being advised a capias had been issued, even though he returned two hours later, was sufficient to establish willfulness), disapproved on other grounds, Kelso v. State, 961 So.2d 277 (Fla.2007).

The Federal Courts of Appeals have been clear that a willful failure to appear must be proven beyond a reasonable doubt, and have held this requires proof of specific intent which cannot be inferred from the fact of notice alone. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980). See also United States v. James, 440 F.Supp. 1137, 1139 (D.Md.1977) (record failed to prove willfulness where it only showed defendant was notified of trial date and failed to appear). But compare United States v. Cohen, 450 F.2d 1019, 1021 (5th Cir.1971) (defendant moving to a new address and changing his name in order to prevent receiving notice, was sufficient proof of willful intent); United States v. DePugh, 434 F.2d 548, 551-53 (8th Cir.1970) (willfulness held proven by evidence that defendant moved, left no forwarding address for the court or his attorneys, and notice was given to defendant’s wife by both the clerk and defendant’s attorney).

The Sixth Circuit upheld a conviction for willfully failing to appear in United States v. Yates, 698 F.2d 828 (6th Cir.1983), where the evidence showed that counsel had received notice, and his client had taken steps to avoid being informed. The government proved, first, that Yates was not a stranger to criminal proceedings; that he had actively participated in the trial and appeal in question; that he was in more or less constant contact with his attorney until his final appeal was denied; and that he engaged in a course of conduct to prevent receiving notice that his conviction had been affirmed: fleeing, leaving no way to be contacted, and using assumed names. Id. at 830-31.

In the present case, the state failed to put on evidence from which the jury could find, beyond a reasonable doubt, that Mr. Corrales willfully failed to appear on April 22, 2010. See Johnston v. State, 863 So.2d 271, 283 (Fla.2003). The state proved he was absent on that date, but established only that Mr. Corrales’ attorney had been notified that the case was to be continued until April 22, 2010. The state presented no testimony or other evidence that Mr. Corrales’ attorney, or anyone else, relayed — or sought to relay— the hearing date to Mr. Corrales. Nor did the state present any evidence, aside from notice to counsel, suggesting any intention on Mr. Corrales’ part to fail to appear for the hearing. We hold that, without more, proof of notice to an attorney of a court proceeding is insufficient to make the client criminally liable for failing to attend.

Reversed.

DAVIS and MARSTILLER, JJ„ concur.

      . The record shows notices of court hearings were regularly mailed to Mr. Corrales until January 21, 2010, after which no notices were mailed to him until the practice resumed after April 22, 2010.

      . Section 843.15, Florida Statutes (2009), provides in part:
      (1) Whoever, having been released pursuant to chapter 903, willfully fails to appear before any court or judicial officer as required shall incur a forfeiture of any security which was given or pledged for her or his release and, in addition, shall:
      (a) If she or he was released in connection with a charge of felony or while awaiting sentence or pending review by certiorari after conviction of any offense, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084....
      (Emphasis supplied.)

      . Without revisiting the question here, we note that a lawyer's communication of trial dates to a client has been held to be "intended to be disclosed to third persons” and therefore outside the protection of the attorney-client privilege. Watkins v. State, 516 So.2d 1043, 1046 (Fla. 1st DCA 1987).