author: WETHERELL, J.

text:
    Charles Henry PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3118.
    District Court of Appeal of Florida, First District.
    March 22, 2011.

      Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant seeks review of his conviction and resulting life sentence for kidnapping. Appellant argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to establish a prima facie case of kidnapping. We affirm for the reasons that follow.

On September 22, 2008, Appellant and the victim were at a friend’s house playing cards and drinking. Appellant and the victim were “picking at each other,” but according to the witnesses, everyone was laughing and no one was angry until Appellant got up from the table and commenced a seemingly unprovoked attack on the victim. Appellant hit the victim over the head with a chair and then dragged her by the hair into another room where he continued the beating until the victim was unconscious. Appellant then dragged the victim outside by her neck or hair where he continued beating her. The attack lasted at least seven minutes, and the victim’s injuries included bruised ribs, two broken toes, and a concussion.

Appellant was arrested and charged with attempted second-degree murder and kidnapping under section 787.01(l)(a)3, Florida Statutes (2008). At the close of the state’s case, Appellant moved for judgment of acquittal on the kidnapping charge, arguing that the movement of the victim during the course of the beating had no independent significance from the beating and was not substantial enough to be considered “confinement” under the kidnapping statute. The trial court denied the motion and the jury found Appellant guilty as charged. Appellant was sentenced as a prison releasee reoffender to life in prison on the kidnapping charge and a concurrent 15-year term on the attempted second-degree murder charge. Appellant does not challenge his attempted murder conviction or sentence on appeal.

Our review of the trial court’s ruling on Appellant’s motion for judgment of acquittal is de novo. See Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001).

In Faison, the Florida Supreme Court held that in order for the defendant’s movement of the victim to be considered “confinement” under the kidnapping statute, the movement, must be of independent significance from the other crime charged and not slight or incidental to the other crime. Subsequent cases have made clear that this test applies only when kidnapping is charged under section 787.01(l)(a)2, and Appellant concedes that Faison does not apply in this case because he was charged under subparagraph 3 of the statute. Nevertheless, Appellant argues that his kidnapping conviction should be reversed because his movement of the victim during the beating was not independent of the intent to terrorize the victim and was not significant enough to support a kidnapping charge.

In support of his argument, Appellant cites Conner v. State, 19 So.3d 1117 (Fla. 2d DCA 2009), in which the Second District reversed the defendant’s conviction for kidnapping under section 787.01(l)(a)3. The court recognized that the Faison test and associated jury instruction do not apply when the defendant is charged under subparagraph 3 of the kidnapping statute, id. at 1121-22, but the court then applied a test that mirrors the Faison test. Id. at 1124-25 (explaining that the issue of whether confinement or movement was merely incidental to an additionally charged crime or took on its own independent significance to justify a kidnapping charge was a “fundamental principle [that] applies whether the State charges the defendant under subsection (l)(a)2 or subsection (l)(a)3” of the kidnapping statute). As in the district court decision approved in Faison, the court’s decision in Conner was based, at least in part, on the court’s view that the Legislature could not have intended to convert one crime involving even an insubstantial element of confinement into two separate crimes simply by the state charging the defendant under subparagraph 3 of the kidnapping statute, rather than subparagraph 2. See id. at 1122 (referencing the Fifth District’s decision in Harkins v. State, 380 So.2d 524, 528 (Fla. 5th DCA 1980), which was subsequently approved in Faison).

We need not address the merits of the Second District’s analysis of section 787.01(l)(a)3 in Conner because the case is distinguishable on its facts. In Conner, the defendant jumped out of a vehicle and attacked a student waiting at a bus stop, holding her down and choking her. See Conner, 19 So.3d at 1119. The entire attack lasted less than a minute and the restraint “did not involve any element of movement.” Id. at 1124; see also id. at 1125 (characterizing the defendant’s “brief act” of holding the victim down during the attack as “a mere momentary restraint”). Here, the beating administered by Appellant lasted at least seven minutes and involved the victim being beaten in one room, dragged by her hair into another room where the beating continued, and then dragged by her neck or hair outside where the beating concluded. These facts are sufficient to establish confinement under any reading of section 787.01(l)(a)3.

Moreover, we agree with the state that this case is similar to Lee v. State, 770 So.2d 231 (Fla. 3d DCA 2000), where the defendant was convicted of kidnapping under section 787.01(l)(a)3 after he “dragged [the victim] by her throat for almost ten feet from one room to another in the course of [his] vicious attack upon her[J” Id. at 232. The Third District affirmed the conviction, finding these facts sufficient to establish confinement under the kidnapping statute. Id.

This case is also similar to Melendez v. State, 51 So.3d 624 (Fla. 5th DCA 2011), where the defendant was convicted of kidnapping under section 787.01(l)(a)3 after he “dragged the victim at gunpoint, by her hair, down a hallway and up half a flight of stairs[.]” Id. In affirming the defendant’s conviction, the Fifth District distinguished Conner, and found that thé facts were sufficient to establish confinement under the kidnapping statute. Id.

For these reasons, the trial court properly denied Appellant’s motion for judgment of acquittal on the kidnapping charge. Accordingly, we affirm Appellant’s judgment and sentence.

AFFIRMED.

BENTON, C.J., and PADOVANO, J., concur.

      . This statute defines "kidnapping” to mean: forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

      3. Inflict bodily harm upon or to terrorize the victim or another person.

      . Faison v. State, 426 So.2d 963, 965-66 (Fla.1983).

      . See Bedford v. State, 589 So.2d 245, 251 (Fla.1991), cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992); State v. Lumarque, 990 So.2d 1241, 1242 (Fla. 3d DCA 2008); Hernandez v. State, 913 So.2d 36 (Fla. 3d DCA 2005), rev. denied, 941 So.2d 368 (Fla.2006); Sutton v. State, 834 So.2d 332, 334-35 (Fla. 5th DCA 2003); Biggs v. State, 745 So.2d 1051, 1052 (Fla. 3d DCA 1999); Waddell v. State, 696 So.2d 1229 (Fla. 3d DCA 1997), rev. denied, 707 So.2d 1128 (Fla.1998); see also Chaeld v. State, 599 So.2d 1362, 1364 (Fla. 1st DCA 1992) (holding that the Faison test does not apply to false imprisonment and observing that the test “has no application when the charge alleges that the defendant kidnapped the victim with any of the other specific intentions identified in § 787.01(l)(a)l, 3 or 4.”), superseded by statute as recognized in Davis v. State, 816 So.2d 840 (Fla. 1st DCA 2002).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric Lamont SEIGLER, Appellant, v. RMC AMERICAS OF FLORIDA, LLC and Chartis Claims, Inc., Appellees.
    No. 1D10-4509.
    District Court of Appeal of Florida, First District.
    March 22, 2011.
    Bill McCabe, Longwood, and David Rickey, Orlando, for Appellant.
    Christine Davis Graves of Carlton Fields, P.A., Tallahassee, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, the Judge of Compensation Claims (JCC) erred in concluding the Employer/Carrier (E/C) timely responded to Claimant’s request for a change in physician under section 440.13(2)(f), Florida Statutes (2008). See Harrell v. Citrus County Sch. Bd., 25 So.3d 675 (Fla. 1st DCA 2010). Consequently, the JCC erred in denying Claimant the right to select his change in physician, denying attorney’s fees and costs, and taxing prevailing party costs against Claimant. Accordingly, .the order on appeal is REVERSED, and this matter is REMANDED for proceedings consistent with this opinion.

ROBERTS, CLARK, and WETHERELL, JJ., concur.


text:
    Terry D. FURR, Husband, Appellant, v. Mary M. FURR, Wife, Appellee.
    No. 1D10-4610.
    District Court of Appeal of Florida, First District.
    March 22, 2011.
    Sean P. Sheppard, St. Augustine, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, the former husband, seeks review of a final judgment of dissolution of marriage. He challenges the trial court’s award of rehabilitative alimony, attorney’s fees, and costs to the former wife; the valuation date used by the trial court in the equitable distribution of his retirement account; and the distribution of the marital debts. We affirm because, to the extent the former husband is challenging the sufficiency of the findings on these issues in the final judgment, he failed to preserve the issues for appellate review through a motion for rehearing or other post-judgment filing, see Mize v. Mize, 45 So.3d 49, 49 n. 1 (Fla. 1st DCA 2010); and, to the extent he is challenging the sufficiency of the evidence supporting the trial court’s findings on these issues, he failed to demonstrate reversible error. See Klette v. Klette, 785 So.2d 562, 563-64 (Fla. 1st DCA 2001) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979), and explaining that the appellate court is unable to determine whether the omission of statutorily-required findings constitutes harmful error in the absence of a transcript).

AFFIRMED.

ROBERTS, CLARK and WETHERELL, JJ., concur.


text:
    William GREELY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Oasis Outsourcing HR Inc., Appellees.
    No. 1D10-6297.
    District Court of Appeal of Florida, First District.
    March 22, 2011.
    William Greely, pro se, Appellant.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

The appellee’s Motion to Dismiss, filed on February 7, 2011, is granted. The notice of appeal failed to timely invoke this Court’s jurisdiction. See Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998). Accordingly, the appeal is dismissed.

BENTON, C.J., PADOVANO and WETHERELL, JJ., concur.


author: ROTHENBERG, J.

text:
    Manuel FERNANDEZ a/k/a Emmanuel Fernandez, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D09-1215, 3D09-3446.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ. .
   ROTHENBERG, J.

The defendant, Manuel Fernandez a/k/a Emmanuel Fernandez, was convicted and sentenced for violating his probation in case number 01-31256-B, and for three counts of armed l-obbery in case number 07-24549. The issue raised in these consolidated appeals is whether the trial court erred in denying the defendant’s motions to suppress the identifications and evidence seized. We affirm.

The evidence at both the violation of probation hearing and the trial on the substantive offenses was that Sabrina and Hiram Perez were robbed at gunpoint in Miami Gardens of several items, including cash and jewelry. The BOLO that was issued following these robberies described the armed assailant as a black man wearing black shorts and a white T-shirt, and driving a blue Toyota with the tag hanging down. Approximately twenty minutes later and in close proximity to the first robbery, Joseph Perez was robbed at gunpoint in his driveway. Joseph Perez described the assailant as wearing black shorts, a white T-shirt, and black Jordan shoes.

Shortly thereafter, Officer Sirois pursued a vehicle matching the BOLO, but before he could effectuate a stop, the driver fled from the vehicle. Officer Vangilis, who also heard the BOLO, saw Officer Sirois standing near the abandoned blue Toyota and a man matching the BOLO, whom he later identified as the defendant, walking on the side of the road. However, when Officer Vangilis attempted to approach the defendant, he began running. Officer Vangilis pursued the defendant, called for backup, and lost sight of the defendant when he ran between two buildings.

Thereafter, while Officer De La Paz was responding to the second armed robbery, he saw the defendant, who matched the description given in the BOLO, standing near a pay phone, breathing heavily, and sweating “profusely.” Based on the BOLO, Officer De La Paz approached the defendant. After verifying the information relayed in the BOLO, due to his safety concerns, he handcuffed the defendant and conducted a pat-down search finding $444 and two gold chains in the defendant’s pocket. Approximately thirty minutes later, the three victims arrived at the gas station, and they identified the defendant as the armed robber. In addition, Hiram and Sabrina identified the, defendant’s vehicle as the vehicle used .in the armed robbery, and Sabrina also identified a firearm that was retrieved from a nearby dumpster as the firearm the defendant used during the robbery.

At the violation of probation hearing, the defendant moved to suppress the gold chains and money found on his person during the pat-down search. He argued that, at the time of the search, law enforcement lacked probable cause, and therefore the search was unlawful. The trial court found that, although law enforcement had reasonable suspicion to detain the defendant, they lacked probable cause to make an arrest until after the victims had identified the defendant. The trial court, however, denied the defendant’s motion to suppress based on the doctrine of inevitable discovery, finding that after the victims identified the defendant, the police officer had probable cause to arrest and search the defendant incident to the arrest. Thus, the trial court found that the police officer would have discovered the victims’ chains and money on the defendant’s person during the search incident to the arrest. The defendant was subsequently found to have violated his probation, and he was sentenced to life in prison.

Thereafter, the defendant was tried on the three counts of armed robbery. Prior to trial, based on the same arguments raised at the - violation of probation hearing, the defendant filed a motion to suppress the victims’ identifications and the items seized during the pat-down search. The trial court denied the motion. Thereafter, the jury found the defendant guilty of three counts of armed robbery, and he was sentenced to thirty years in prison followed by ten years of probation. These consolidated appeals followed.

The defendant does not dispute the legality of the stop and temporary detention of the defendant, which was based on a well-founded suspicion to believe he had committed the armed robberies. He argues, however, that law enforcement exceeded the scope of the temporary detention by handcuffing him, conducting a pat-down search, and holding him for approximately thirty minutes until the. victims of the three armed robberies were transport ed for show-up identifications.

In Saturnino-Boudet v. State, 682 So.2d 188 (Fla. 3d DCA 1996), this Court explained that a temporary investigative “stop and frisk,” which is commonly referred to as a Terry stop, is “permissible if the detention is temporary and reasonable under the circumstances [but] only if the police officer has a wellfounded suspicion that the individual detained has committed, is committing, or is about to commit a crime.” Id. at 191 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). This Court further explained that during a Terry stop,

“the officer may conduct a limited search or frisk of the individual for concealed weapons where the officer is justified in believing the person is armed and dangerous to the officer or others.” [State v.] Simons, 549 So.2d [785,] 786 [ (Fla. 2d DCA 1989) ]. Additionally, the officer may detain the individual even at gunpoint and/or by handcuffs for the officer’s safety without converting the Terry stop into a formal arrest.

Saturnino-Boudet, 682 So.2d at 191. Moreover,, we rejected Saturnino-Boudet’s argument “that his 30-40 minute detention by the police to await the arrival of the police canine unit was the de facto equivalent of an arrest without probable cause.” Id.

In the instant case, the police officer handcuffed and patted down the defendant, who matched the BOLO description of a man who had just committed three armed robberies and had attempted to evade capture. The defendant thus posed a danger warranting a pat-down search, and he was handcuffed because he was a flight risk. Additionally, the detention was brief and was limited to the sole purpose of allowing the victims to be transported to where the defendant was being detained to conduct show-up identifications. Thus, based on Satumino-Boudet, we reject the defendant’s contention that the police officer exceeded the scope of the temporary detention. See also Reynolds v. State, 592 So.2d 1082, 1084 (Fla.1992) (“Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officers’ safety or to thwart a suspect’s attempt to flee.”).

Although we find that law enforcement did not exceed the scope of the temporary detention, we agree with the trial court that the items seized from the defendant’s pockets were admissible under the inevitable discovery doctrine. See Maulden v. State, 617 So.2d 298, 301 (Fla.1993) (holding that “under ‘inevitable discovery’ doctrine, evidence obtained as the result of an unlawful search is admissible if the evidence would ultimately have been discovered by legal means”).

Affirmed.


author: THOMAS, J.

text:
    Sandra JEWELL, Appellant, v. GEVITY HR and Chartise Insurance, Appellees.
    No. 1D10-4126.
    District Court of Appeal of Florida, First District.
    March 23, 2011.
    Bill McCabe, Longwood, and William L. Welker, Fort Myers, for Appellant.
    Russell H. Young, Sarasota, for Appel-lees.
   THOMAS, J.

In this workers’ compensation case, Claimant appeals from a final order finding the Employer/Carrier (E/C) entitled to apportionment. Because the Judge of Compensation Claims (JCC) erred in his conclusion that the need for medical care is the result of merger with a preexisting condition, we reverse.

Claimant injured her back in the course and scope of her employment. The E/C accepted the accident as compensable and provided medical care. Claimant’s treating neurosurgeon eventually recommended surgery, but opined that 60% of the need for surgery was related to the industrial accident and 40% was related to preexisting conditions. As a result, the E/C authorized surgery, but asserted it was only responsible for 60% of the costs. Following an evidentiary hearing, the JCC entered a final order concluding the E/C was entitled to apportion 40% of Claimant’s “disability (if any) and medical care.”

In Staffmark v. Merrell, 43 So.3d 792, 795-96 (Fla. 1st DCA 2010), we held section 440.15(5)(b), Florida Statutes (2008), permits apportionment of medical and indemnity benefits. Section 440.15(5)(b) allows for apportionment only “[i]f a com-pensable injury, disability, or need for medical care, or any portion thereof, is a result of aggravation or acceleration of a preexisting condition, or is the result of merger with a preexisting condition.... ” Accordingly, such apportionment requires either (1) a finding of aggravation or acceleration of a preexisting condition or (2) a finding of merger with a preexisting condition. The JCC did not find an aggravation or acceleration of a preexisting condition, but relied upon the treating neurosurgeon’s opinions to find merger. Merger, however, is defined in section 440.15(5)(b) as:

the combining of a preexisting permanent impairment or disability with a subsequent compensable permanent impairment or disability which, when the effects of both are considered together, result in a permanent impairment or disability rating which is greater than the sum of the two permanent impairment or disability ratings when each impairment or disability is considered individually.

Thus, merger, by definition, cannot occur without a preexisting permanent impairment or disability. In this case, although there was evidence Claimant had preexisting conditions, there was no evidence Claimant had a preexisting permanent impairment or disability. Consequently, there could be no merger.

In view of our disposition of this appeal, we need not address the other issues raised by Claimant. The JCC’s order finding the E/C entitled to apportionment is REVERSED.

VAN NORTWICK and MARSTILLER, JJ., concur.

      . The 2006 version of section 440.15(5)(b) applicable in this case is identical.


text:
    Jennifer KAUFFMAN, Appellant, v. COMMUNITY INCLUSIONS, INCORPORATED/GUARANTEE INSURANCE COMPANY, Appellees.
    No. 1D10-4046.
    District Court of Appeal of Florida, First District.
    March 23, 2011.
    Bill McCabe, Longwood, and Brian Sut-ter and Frank Clark, Port Charlotte, for Appellant.
    Richard W. Ervin, III of Fox & Loquas-to, P.A., Tallahassee, for Voices, Inc., Ami-cus Curiae in support of Appellant.

      Richard A. Sicking, Coral Gables, for Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO, Amicus Curiae in support of Appellant.
    Kelli Biferie Hastings and Geoffrey Bidder of Bichler & Kelley, P.A., Maitland, for Fraternal Order of Police, Amicus Curiae in support of Appellant.
    Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Florida Workers’ Advocates, Amicus Curiae in support of Appellant.
    Roy D. Wasson of Wasson and Associates, Chartered, Miami, for The Florida Justice Association, Amicus Curiae in support of Appellant.
    Kelly M. Fisher of Fisher Law Group, P.A., St. Petersburg, for Appellees.
    Tamela Perdue, Tallahassee, Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, and Thomas A. Kovel, Sarasota, for Associated Industries of Florida and Florida Insurance Council, Amicus Curiae in support of Appellees.
    Jeffrey I. Jacobs of Malea and Jacobs, P.A., Miami, for The Workers’ Compensation Section of the Florida Bar, Amicus Curiae.
   PER CURIAM.

In reaction to the Florida Supreme Court’s decision in Murray v. Manner Health, 994 So.2d 1051 (Fla.2008), the Legislature enacted Council Substitute for House Bill 903, which took effect on July 1, 2009. Ch. 2009-94, § 1, at 1351-52, Laws of Fla. The new law amended section 440.34, Florida Statutes (2008), by deleting “reasonable” before “attorney’s fees” in subsections (1) and (3), and by inserting in subsection (3) the phrase “in an amount equal to the amount provided for in subsection (1) or subsection (7).” Id.

In this case, the Judge of Compensation Claims (JCC) found the Employer/Carrier responsible for Claimant’s attorney’s fees pursuant to section 440.34(3), Florida Statutes (2009), and found a reasonable attorney’s fee to be $25,075.00. The JCC nevertheless concluded that the amended statute limited the fee to a percentage of benefits obtained, and awarded Claimant’s attorney a fee of $684.41 for obtaining $3,417.03 in benefits. Claimant has appealed, arguing the JCC misinterpreted section 440.34, Florida Statutes (2009), and that, if he interpreted the amended statute correctly, the law is now unconstitutional.

We reject Claimant’s argument that section 440.34 allows attorney’s fees exceeding an amount resulting from application of the formula set forth in section 440.34(1) when the fee is “awarded” rather than merely “approved” by the JCC. Although section 440.34(1) provides that a fee may not be paid for a claimant unless approved by the JCC, section 440.34(3) provides that a claimant is entitled to recover a fee from an Employer/Carrier “in an amount equal to the amount provided for in subsection (1) or subsection (7).” Except in cases where section 440.34(7) applies, the statute limits claimants’ attorney’s fees to a percentage of benefits obtained, based on the formula set forth in subsection (1), and does so regardless of whether the fee is awarded, or simply approved, by the JCC.

We reject Claimant’s equal protection, due process, separation of powers, and access to courts challenges to the amended statute for the same reasons we rejected similar challenges to section 440.34, as previously amended in 2003, in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (Fla. 1st DCA 2006). We are, of course, aware that in quashing this court’s decision in Murray v. Manners Health/ACE USA, 946 So.2d 38 (Fla. 1st DCA 2006), the Florida Supreme Court also disapproved of this court’s decisions in Lundy, Campbell v. Aramark, 933 So.2d 1255 (Fla. 1st DCA 2006), and Wood v. Florida Rock Industries, 929 So.2d 542 (Fla. 1st DCA 2006). Murray, 994 So.2d at 1062. The supreme court did not address any constitutional issues in Murray, see id. at 1053, however, and did not cast any doubt on the reasoning used in Lundy, Campbell, and Wood, in rejecting constitutional claims like those made here.

Although the Employer/Carrier argues — not without force — that Claimant, who is, after all, represented by able counsel, does not for that reason have standing to raise these constitutional arguments, our supreme court at least implicitly concluded in Murray that a workers’ compensation claimant has standing to challenge the validity of the fee provisions in section 440.34, even though she herself is adequately represented by counsel., See Murray, 994 So.2d at 1053.

Affirmed.

BENTON, C.J., DAVIS, and THOMAS, JJ., concur.

      . Section 440.34(7) pertains to attorney's fees in disputed medical-only claims and does not apply in this case.


author: SHEPHERD, J.

text:
    Gary E. MARSHALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3064.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Gary E. Marshall, in proper person.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before SHEPHERD, SALTER, and EMAS, JJ.
   SHEPHERD, J.

Appellant, Gary E. Marshall, appeals a trial court order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Marshall contends he is entitled to further credit for time served, specifically for: 1) a sentence imposed on October 22, 2008, of ninety days received as a result of probation violation; and 2) for a sentence of 180 days imposed on April 6, 2009, as a result of a probation violation.

The State concedes county jail cards do, indeed, reflect that Marshall commenced serving a ninety-day sentence on or about October 23, 2008, and likewise commenced serving a 180-day sentence on April 6, 2009, but states both sentences expired prior to Marshall completing them.

Because the record does not show conclusively that Marshall is entitled to no relief, we reverse and remand to the trial court with directions that it obtain the transcript from the sentencing hearing, and 1) either attach it to a further order, or 2) grant any additional credit to which Marshall might be entitled under the plea if there was no waiver of credit for time served. See Fla. R.App. P. 9.141(b)(2)(D).

Reversed and remanded with directions.


text:
    V.A. CRUDELE DREDGING CORPORATION, a Florida Corporation, Appellant, v. AMDG ENTERPRISES, INC.; Calu, L.L.C.; New Stone Age, Inc.; Ampar Investments, LLC.; Dynamic Group Holdings, L.L.C.; Valinterests, Inc.; and Riser LLC., Appellees.
    No. 3D10-1329.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Arnaldo Velez, Coral Gables, for appellant.
    Marlene S. Reiss, Miami, for appellees.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See N & D Holding, Inc. v. Town of Davie, 17 So.3d 819 (Fla. 4th DCA 2009).


text:
    Hannah BRODOWICZ, Appellant, v. Isaac BARBER, Appellee.
    No. 3D10-2199.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Joseph H. Ganguzza and Paul A. McKenna, Miami, for appellant.
    Jason Scott Coupal, Pompano Beach; Sandor F. Genet, for appellee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Buckhalt v. McGhee, 632 So.2d 120, 121 (Fla. 1st DCA 1994).


text:
    Guerta TELCIDE, etc., Appellant, v. DELTA CONSULTING ENGINEERS, INC., et al., Appellees.
    No. 3D09-3109.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Alan Goldfarb and Liah C. Catanese; Joel S. Perwin, Miami, for appellant.
    Boyd Richards Parker & Colonnelli, W. Todd Boyd, and Darryl R. Graham, Miami; Richard A. Sherman, Sr., Fort Lauderdale, and James W. Sherman; James W. Kehoe and Carlos M. Llórente, Fort Lauderdale, for appellees.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Routon v. PBS & J Constr. Servs., Inc., 971 So.2d 252 (Fla. 2d DCA 2008).


text:
    David LLANES, Appellant, v. CENTRAL TRANSPORT, INC., Appellee.
    No. 3D10-1580.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Lawrence J. McGuinness and Juliana Gonzalez, for appellant.
    Eddy 0. Marban, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See § 440.205, Fla. Stat. (2008); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).


text:
    Tremelle NIXON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1867.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

      Before, WELLS and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Enich v. State, 838 So.2d 1216 (Fla. 3d DCA 2003); Everette v. State, 736 So.2d 726 (Fla. 2d DCA 1999); State v. Clark, 721 So.2d 1202 (Fla. 3d DCA 1998); Smith v. State, 719 So.2d 1018 (Fla. 3d DCA 1998).


author: WELLS, Judge.

text:
    James E. DANIELS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-286.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    James Edward Daniels, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, WELLS, and SALTER, JJ.
   WELLS, Judge.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a), claiming that he is entitled to additional jail credit.

Appellant maintains that court records establish his entitlement to 108 days served, however he was incorrectly awarded 69 days for time served. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. Varela v. State, 29 So.3d 398, 399 (Fla. 3d DCA 2010). If the trial court enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to the credit for time served as sought.

Reversed and remanded.


author: EVANDER, J.

text:
    J.L., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1907.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

J.L. was found guilty, after an adjudicatory hearing, of burglary of a dwelling and petit theft. ' He appeals the trial court’s denial of his motion for judgment of dismissal ' as to the burglary count only. Specifically, J.L. contends that the State failed to prove that the yard from which the victim’s personal property was taken was sufficiently enclosed so as to constitute curtilage of the victim’s house. We agree.

The evidence established that J.L. stole a go-cart, a four-wheeler, and a skateboard from the victim’s yard. These items were leaning against the side of the victim’s residence. The entire extent of the testimony regarding the “enclosure” of the victim’s yard came from the victim’s mother. She testified that there was a fence “in the back” and a fence “between •.. my house and my neighbor’s house.” There was no testimony as- to the distance of these fences from the house, whether the two fences connected to each other, or even whether there was a fence on the side of the house from which the victim’s personal property was taken.

To prove the offense of burglary of a dwelling, the State was required to prove that J.L. entered a “dwelling” with the intent to commit an offense therein. § 810.02(l)(b)l., Fla. Stat. (2009). “Dwelling” is defined to mean:

[A] building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.

§ 810.011(2), Fla. Stat. (2009) (emphasis added). There was no contention or evidence that J.L. entered the house in which the victim resided. The issue was whether J.L. entered the building’s curtilage.

The Florida statutes do not provide a definition for the word “curtilage.” However, in State v. Hamilton, 660 So.2d 1038 (Fla.1995), the Florida Supreme Court determined that there must be “some form of an enclosure” in order for the area surrounding a residence to be considered part of the curtilage as referenced in the burglary statute. Hamilton, 660 So.2d at 1044. Subsequently, in Martinez v. State, 700 So.2d 142 (Fla. 5th DCA 1997), this court relied on Hamilton in concluding that an unattached garage located at the south end of the victim’s property was not a part of the residence’s curtilage, notwithstanding that the victim’s yard had fences on its north and east borders. It is difficult to distinguish Martinez from the instant case.

The fact that the stolen personal property was leaning against the victim’s residence does not require a different result. The stolen items clearly were not attached to, nor a part of, the victim’s house. In Hamilton, our supreme court opined that the Legislature did not intend the burglary statute to be applied to an individual who, without the homeowner’s consent, enters an open yard with the intent to take a piece of fruit from a tree located in the yard. To accept the State’s suggestion that curtilage necessarily includes an item that touches (but is not attached) to the house would mean that a burglary of a dwelling would occur if an individual took a fruit from a tree in an open yard when the fruit happened to be touching the house. We similarly conclude that the Legislature did not intend the burglary statute to be so applied.

While the State’s evidence was insufficient to prove a burglary, it was (as J.L. acknowledges) sufficient to prove the lesser included offense of trespass. Section 924.34, Florida Statutes (2009), provides that when an appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment but direct the trial court to enter judgment for the lesser included offense. See also I.T. v. State, 694 So.2d 720, 724 (Fla.1997). Accordingly, we reverse the judgment for burglary of a dwelling and remand with instructions to enter judgment on the offense of trespass.

REVERSED and REMANDED.

PALMER and COHEN, JJ., concur.

      . Fla. R. Juv. P. 8.110. Adjudicatory Hearings
      (k) Motion for Judgment of Dismissal. If at the close of the evidence for the petitioner, the court is of the opinion that the evidence is insufficient to establish a prima facie case of guilt against the child, it may, or on the motion of the state attorney or the child, shall enter an order dismissing the petition for insufficiency of the evidence.

      . § 810.09(l)(a)2„ Fla. Stat. (2009).


text:
    Octavius WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-523.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.

      Robert Wesley, Public Defender and Steven S. Graves, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

Inasmuch as there is pending in this Court Case No. 5D10-4087, an appeal of the order that is the subject of this petition for belated appeal and as it has been established that the notice of appeal was timely filed below, Case No. 5D10-4087 shall proceed as timely filed. Therefore the petition for belated appeal is moot.

PETITION DENIED AS MOOT.

SAWAYA, PALMER and COHEN, JJ, concur.


author: CRENSHAW, Judge.

text:
    Edward HORNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4020.
    District Court of Appeal of Florida, Second District.
    March 25, 2011.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   CRENSHAW, Judge.

Edward Horne appeals his judgment and life sentence for second-degree murder, arguing that the trial court erred in denying his motion to suppress his pre-Miranda statements to law enforcement. Although we conclude the trial court erred in admitting Horne’s pre-Miranda confession, we affirm the judgment and sentence on the basis of harmless error.

Horne was charged with second-degree murder for the homicide of Jamaal Wilson, who was shot and killed in June 2007 in Winter Haven. Horne filed a motion to suppress his pr e-Miranda statements to law enforcement in which he confessed to the crime. At the hearing on the motion to suppress, three detectives from the Winter Haven Police Department testified that Horne was taken into custody and brought into an interview room. Before advising Horne of his Miranda rights, the detectives showed him a picture of the victim, played a recorded statement by Horne’s brother indicating Horne admitted to the crime, and showed Horne a recovered firearm. Following this sequence of events, Horne confessed that he shot the victim. It was only after Horne’s confession that he was advised of his Miranda rights. The trial court denied Horne’s motion to suppress because Horne’s statements were not made in response to any question.

Horne argues on appeal that the trial court erred in denying his motion to suppress his -pre-Miranda statements to law enforcement because the detectives’ conduct amounted to custodial interrogation. We agree and conclude that the detectives’ pr e-Miranda conduct constituted custodial interrogation because the detectives should have known their actions were reasonably likely to elicit an incriminating response from Horne. “Miranda warnings are required before police conduct a custodial interrogation of a suspect.” State v. Martissa, 18 So.3d 49, 51 (Fla. 2d DCA 2009).

[T]he term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the pai’t of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating l-esponse from the suspect.... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable .results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Cuervo v. State, 967 So.2d 155, 161 (Fla.2007) (quoting Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)).

Although Horne was not subjected to express questioning before he was given Miranda warnings, we conclude that the detectives’ course of action amounted to the functional equivalent of questioning. The detectives should have known that their actions of showing Horne the victim’s picture, playing the recorded statement by Horne’s brother, and showing Horne the recovered firearm, were reasonably likely to elicit an incriminating response from Horne. And because Horne was not given Miranda warnings before this course of action, we conclude the trial court erred in denying Horne’s motion to suppress.

Despite this conclusion, .the admission of Horne’s pr e-Miranda statements was harmless beyond a reasonable doubt given the overwhelming evidence of guilt. See Ross v. State, 45 So.3d 403, 434 (Fla.2010) (applying harmless error analysis). At trial, several eyewitnesses testified in detail about the shooting. Each witness gave consistent testimony that he or she saw Horne and the victim engaged in a verbal confrontation. And their testimony established that Horne removed a gun from his pocket, shot it in the air, and then shot the victim. We therefore hold there is no reasonable possibility that the error in admitting Horne’s pr e-Miranda statements contributed to the guilty verdict. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). Accordingly, we affirm Horne’s judgment and sentence.

Affirmed.

LaROSE and KHOUZAM, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).


author: SCHWARTZ, ALAN R., Senior Judge.

text:
    Edgar Emery GRIFFIS, Appellant, v. FLORIDA FISH & WILDLIFE CONSERVATION COMMISSION, Appellee.
    No. 1D10-3492.
    District Court of Appeal of Florida, First District.
    March 28, 2011.

      F. Alan Cummings and Christopher R. Conley of Smith, Currie & Hancock, LLP, Tallahassee, for Appellant.
    Mark Henderson, Assistant General Counsel, Florida Fish and Wildlife Conservation Commission, Tallahassee, for Appel-lee.
   SCHWARTZ, ALAN R., Senior Judge.

The Fish & Wildlife Commission revoked the commercial saltwater fishing privileges of appellant, Edgar E. Griffis, and assessed a $5,000 administrative penalty pursuant to section 379.366(4)(b), Fla. Stat. (2009), which provides in pertinent part:

Any commercial harvester receiving a judicial disposition other than dismissal or acquittal on a charge of theft of or from a trap as prohibited by this paragraph shall, in addition to the penalties specified in s. 379.407 and this section, permanently lose all saltwater fishing privileges, including any saltwater products licenses, blue crab endorsements, and blue crab trap tags allotted to him or her by the commission, [e.s.]

Griffis appeals. We reverse.

The basis of the administrative action was that Griffis had pled no contest in the Brevard County circuit court to count IV of an amended information which in its entirety alleged two counts of molesting blue crab traps (counts I and II), one of unlawful removal of blue crab trap contents (count III), and one of grand theft (count IV). After plea negotiations, the assistant state attorney nolle prossed counts I, II, and III—which if properly pursued, might have invoked the Commission’s authority under section 379.366(4)(b). In return for that action and a sentence of one year probation and a withhold of adjudication, appellant pled no contest to the remaining count IV, a vanilla charge which alleged a generic theft of “personal property” in the broadest terms and without specific reference to the offenses prohibited by section 379.366 or anything like them.

We hold that this fact pattern does not qualify under section 379.366(4)(b), since it was patently not “a judicial disposition other than dismissal or acquittal on a charge of theft of or from a trap as prohibited by this paragraph.... ” Our decision is required by an amalgam of several well-established rules:

1. The law is well-settled that “[sjtatutes imposing a penalty must always be construed strictly in favor of the one against whom the penalty is imposed and are never to be extended by construction.” See Holmberg v. Dep’t of Natural Res., 503 So.2d 944, 947 (Fla. 1st DCA 1987); see also State ex rel. Volusia Jai-Alai, Inc., 304 So.2d at 477 (holding that “an administrative agency’s authority to suspend or revoke licenses is restricted to the grounds enumerated in the statute[,]” and determining that statute authorizing sanctions against corporate officers, directors, and employees could not be applied to penalize stockholders, even if such application would further its legislative purpose).

2. Even more specifically, as the court said in In re Weathers, “[wjhere a board or officer is granted the right and power to revoke a license for certain named reasons, causes, or crimes, set out in the statutes, a license may not be revoked for any other or different cause or causes not clearly within the provisions of the statutes-” 159. Fla. 390, 31 So.2d 543, 544 (1947) (quoting Ky. State Bd. of Dental Exam’rs v. Crowell, 220 Ky. 1, 294 S.W. 818, 819 (1926)); see by analogy Mitchel v. Cigna Prop. and Cas. Ins. Co., 625 So.2d 862, 864-65 (Fla. 3d DCA 1993) (obligation to pay damages caused by striking a coral reef in violation of section 258.083, Florida Statutes (1991), not excluded from liability coverage as a “penalty,” because it was ordered as “restitution” under the general provisions of section 775.089, Florida Statutes (1991), rather than imposed as a “civil penalt[y] for damage to coral reefs in state waters” imposed under sections 253.04(1), and (3)).

3. “[A] defendant may not be convicted of a crime that has not been charged by the State.” Jaimes v. State, 51 So.3d 445 (Fla.2010). See Pittman v. State, 22 So.3d 859, 862 (Fla. 3d DCA 2009) (Defendant chárged with sexual battery could not be convicted of lewd or lascivious battery as a lesser-included offense, where nothing in the information alleged that the victim was 12 or older but less than 16, although such evidence was admitted at trial); Cogbill v. State, 940 So.2d 537, 539 (Fla. 1st DCA 2006) (“where an offense can be committed in more than one way, instructing the jury on an alternate theory not charged in the information constitutes fundamental error”); Rose v. State, 507 So.2d 630, 632 (Fla. 5th DCA 1987) (“It is elementary that the conviction of a crime not charged violates constitutional due process.”).

Putting these principles together yields the inevitable conclusion that section 379.366(4)(b), cannot apply because the charge to which the appellant pled was not one specified in section 379.366(4)(b).

We make two additional observations.

First, the Commission relied below entirely on the effect of the plea. For reasons unknown, it did not even allege or attempt to prove by admissible evidence that Griffis indeed actually tampered with someone' else’s blue crab trap.

Second, and perhaps more importantly, there can be no doubt that the manner in which the Brevard County criminal case was resolved to the satisfaction of both the State Attorney and the defendant was driven by the mutual and obvious intent to avoid exactly the result reached below. The Commission’s' action thus has created the appearance, if not the reality, of a governmental “gotcha” in which one agency of the State broke another’s word. State v. Frazier, 697 So.2d 944, 945 (Fla. 3d DCA 1997) (“the prosecution, having reaped the benefits of the agreement by securing the guilty plea, must be held to its detriments ... the state, above all parties, must keep its word.”); see Velazquez v. State, 870 So.2d 863 (Fla. 3d DCA 2004) (“[T]he state, above all parties, must keep its word.” (quoting Frazier, 697 So.2d at 945)); Echevarria v. State, 845 So.2d 340, 341 (Fla. 3d DCA 2003) (same); State v. Hargis, 328 So.2d 479, 481 (Fla. 1st DCA 1976) (Rawls, J., dissenting) (“If ... ‘men must turn square corners when they deal with the Government,’ it is hard to see why the Government should not be held to a like standard of rectangular rectitude when dealing with its citizens.” (citing Daniell v. Sherrill, 48 So.2d 736 (Fla.1950), quoting “Mr. Justice Holmes ... 48 Harvard Law Review, 1299”)); see also McKay v. Great Am. Ins. Co., 876 So.2d 666, 673 (Fla. 4th DCA 2004) (“basic fairness, due process, would be offended if the state could back out of the agreement after the defendant has fully performed”). What is more, it is at best ironic that the action countermanded by the Commission was that of the very office, that of the State Attorney, which has the constitutional responsibility for charging and prosecuting offenses, upon which the application of section 379.366(4)(b) entirely depends. We cannot approve such a result.

For these reasons, the license revocation and fine under.'review are reversed and the cause is remanded with instructions to dismiss the administrative complaint.

PADOVANO and CLARK, JJ., concur.

      . The Amended information stated as follows: COUNT 1 MOLESTING BLUE CRAB TRAPS (F3) 379.366
      COUNT 2 MOLESTING BLUE CRAB TRAPS (F3) 379.366
      COUNT 3 UNLAWFUL REMOVAL OF BLUE CRAB TRAP CONTENTS (M2) 379.366
      COUNT 4 GRAND THEFT ($300 OR MORE BUT LESS THAN $20,000) (F3) 812.014(2)(c)
      IN THE NAME AND BY AUTHORITY OF THE STATE OF FLORIDA, NORMAN R. WOLFINGER, STATE ATTORNEY, THROUGH THE UNDERSIGNED DESIGNATED ASSISTANT STATE ATTORNEY, CHARGES THAT
      COUNT 1 IN THE COUNTY OF BREVARD, STATE OF FLORIDA, on March 16, 2007, EDGAR EMERY GRIFFIS, did willfully molest blue crab traps, lines or buoys belonging to another, without permission of the license holder, [] contrary to Sections 379.366 and [37J9.407, Florida Statutes, COUNT 2 IN THE COUNTY OF BREVARD, STATE OF FLORIDA, on March 16, 2007, EDGAR EMERY GRIFFIS, did willfully molest blue crab traps, lines or buoys belonging to another, without permission of the license holder, contrary to Sections 379.366 and [37]9.407, Florida Statutes, COUNT 3 IN THE COUNTY OF BREVARD, STATE OF FLORIDA, on March 16, 2007, EDGAR EMERY GRIFFIS, did remove the contents of or take possession of another harvester’s blue crab trap without the express written consent of the trap owner available for immediate inspection, contrary to Sections 379.366 and 379.407, Florida Statutes,
      COUNT 4 IN THE COUNTY OF BREVARD, STATE OF FLORIDA, on March 16, 2007, EDGAR EMERY GRIFFIS did knowingly obtain or use, or endeavor to obtain or use property, to wit PERSONAL PROPERTY, of the value of $300 00 or more, but less than $20,000 00, the property of JOSE ALVES, as owner or custodian, with the intent to, either temporarily or permanently, deprive said owner or custodian of a right to said property or a benefit therefrom, or to appropriate said property to the use of EDGAR EMERY GRIFFIS, or another person not entitled thereto, contrary to Sections 812.014(1), 812.014(2)(c), Florida Statutes, AND against the peace and dignity of the State of Florida.


text:
    James Kyle DORAN, Husband, Appellant, v. Dana Marie DORAN, Wife, Appellee.
    No. 1D10-6841.
    District Court of Appeal of Florida, First District.
    March 28, 2011.
    Alexa K. Alvarez of Alvarez & Wallace, P.A., Fernandina Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of January 13, 2011, the Court has determined that the Amended Final Judgment is not a final order as it reserves jurisdiction to expend additional judicial labor over the non-collateral issue of child support. See Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002); Klein v. Klein, 551 So.2d 1235 (Fla. 3d DCA 1989). Accordingly, the appeal is hereby dismissed as premature. In light of the dismissal, the appellant’s Motion to Extend Time for Filing, filed on March 9, 2011, is denied as moot.

THOMAS, WETHERELL and ROWE, JJ., concur.


text:
    Larry McDERMOTT, Appellant, v. UNITED PARCEL SERVICE/LIBERTY MUTUAL, Appellees.
    No. 1D10-3557.
    District Court of Appeal of Florida, First District.
    March 28, 2011.

      Bill McCabe, Longwood, and Bill Berke, Cape Coral, for Appellant.
    Tara L. Sa’id of the Law Office of Amy L. Warpinski, Jacksonville, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred on three counts. We affirm without comment the points challenging the JCC’s denial of an employer/camer-paid attorney’s fee as it relates to the morphine pump and the JCC’s refusal to include paralegal time when determining the reasonable time spent related to the successful prosecution of a claim for payment of disputed medical bills. We reverse, however, the JCC’s finding that the customary hourly rate in his district was $200.

Claimant’s attorney offered evidence in support of his contention that he should be awarded an hourly fee of $300 to $400. The JCC could properly reject this evidence as he found the testimony was based on Claimant’s attorney’s personal experience in jurisdictions other than workers’ compensation and in other venues. See Mitchell v. XO Commc’ns, 966 So.2d 489, 490 (Fla. 1st DCA 2007) (“It is well-settled that a JCC may reject in whole or in part even uncontroverted testimony the JCC disbelieves.” (citing Bass v. Gen. Motors Corp., 637 So.2d 304, 306 (Fla. 1st DCA 1994))). The JCC erred, however, in finding that the employer/carrier’s attorney testified that the customary hourly rate in the locality for similar services was $200. The employer/carrier’s attorney did not testify; he only offered argument to that effect.

Section 440.34(l)(b), Florida Statutes (Supp.1996), requires the JCC to determine, when awarding a fee based on an hourly rate, “[t]he fee customarily charged in the locality for similar legal services.” The JCC must rely on evidence properly submitted in arriving at the customary fee, not his “subjective belief and personal experience.” Sanchez v. Woerner Mgmt., Inc., 867 So.2d 1173, 1174 (Fla. 1st DCA 2004). “[UJnsworn responses and arguments of counsel are not evidence upon which a [JCC] may rely when determining the amount of a reasonable fee.” Hale v. Shear Express, Inc., 946 So.2d 94, 96 (Fla. 1st DCA 2006) (relying on Smyth v. K-Mart Corp., 905 So.2d 921, 921 (Fla. 1st DCA 2005)); Sanchez, 867 So.2d at 1175. Accordingly, the JCC’s finding that $200 was the customary hourly rate is REVERSED, and this matter is REMANDED for further proceedings consistent with this opinion.

LEWIS, CLARK, and ROWE, JJ„ concur.


author: TAYLOR, J.

text:
    Jaimi GERBER, Appellant, v. VINCENT’S MEN’S HAIRSTYLING, INC. and Vincent Campo, Appellees.
    No. 4D09-5059.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.

      Lawrence J. McGuinness and Juliana Gonzalez of Lawrence J. McGuinness, P.A., Miami, for appellant.
    William J. McFarlane of the Law Offices of McFarlane Dolan & Barnett, Coral Springs, for appellees.
   TAYLOR, J.

Plaintiff was employed as a receptionist for Vincent’s Men’s Hairstyling Shop, Inc. She filed a complaint against the shop alleging that its owner, Vincent Campo, touched her in a sexual manner on multiple occasions, causing her physical and emotional harm. Her complaint included claims against the shop for negligent retention and supervision (Count I) and vicarious liability (Count II), and a claim against Campo for battery (Count III).

Defendants moved to dismiss her complaint, asserting that, though the complaint sounded in negligence, the complaint was actually for sexual harassment and discrimination; as such, plaintiff was required to comply with the pre-suit procedures set forth in Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. section 2000e-5(f)(l), and the Florida Civil Rights Act (FCRA), section 760.11, Florida Statutes (2009). The trial court agreed and granted defendants’ motion to dismiss. In addition, the trial court granted the defendants’ motion for attorney’s fees and costs under section 57.105, Florida Statutes (2009). Because the trial court’s dismissal of the complaint improperly foreclosed plaintiff from pursuing viable common law tort claims against her employer, we reverse.

At the outset, we reject defendants’ contention that the order dismissing plaintiffs complaint is not final for appeal purposes because it was entered “without prejudice.” “[A]n order which strikes the entirety of a claim is the equivalent of an order which dismisses, and either is final. The phrase ‘with prejudice’ in such an order is redundant.” Gries Inv. Co. v. Chelton, 388 So.2d 1281, 1282 (Fla. 3d DCA 1980). Here, when granting defendants’ motion to dismiss, the trial court stated that “Plaintiff may not re-file until such time as conditions precedent of sexual harassment statutes [are] met.” Because plaintiff maintained that her common law claims were viable under tort law, the trial court’s dismissal foreclosed any remedy based in tort and effectively ended the litigation on the merits. The order is thus reviewable on appeal.

We next address plaintiffs argument that the trial court erred in dismissing her claims because she failed to comply with the pre-suit procedures required by Title VII or the FCRA. Defendants persuaded the trial court that plaintiff couched her complaint in terms of a tort action in an attempt to circumvent the pre-suit procedures of Title VII and the FCRA. Accordingly, the court dismissed the complaint, believing it had no jurisdiction to hear the matter until those pre-suit requirements were satisfied.

Florida law permits multiple causes of action to co-exist. Florida Rule of Civil Procedure 1.110(g) states that “[a] pleader may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has, and claims for relief may be stated in the alternative if separate items make up the cause of action, or if 2 or more causes of action are joined.” It further provides that “[a] party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both.”

In this case, plaintiff filed a three-count complaint for negligent retention and supervision, vicarious liability, and battery: Specifically, she alleged that she was battered by defendant Campo, that the battery resulted from the defendant hairstyling shop’s negligent retention and supervision of its employees, and that the shop was vicariously liable for the acts of its employees. The fact that the complaint alleges a “hybrid” of facts supporting both common law tort violations and statutory sexual harassment violations is not dispositive, as the allegations in plaintiffs complaint can stand on their own under common law. If, upon completion of the EEOC administrative process, plaintiff chooses to seek amendment of her complaint to add statutory sexual harassment claims, that is her prerogative. Meanwhile, plaintiff is free to file a complaint setting forth claims based on common law torts, as opposed to statutory violations. The trial court thus erred in dismissing her complaint. See Rivera v. Torfino Enters., Inc., 914 So.2d 1087, 1090 (Fla. 4th DCA 2005) (reversing dismissal of plaintiffs whistle-blower’s complaint against her former employer where anti-retaliatory provisions of both the Whistleblower’s Act and the Florida Civil Rights Act overlapped with each other and there was no reason for not harmonizing the statutes and giving effect to both); Underwood v. Rhone-Poulenc Rorer Pharm., Inc., 890 So.2d 429, 431 (Fla. 4th DCA 2004) (reversing summary judgment and holding that allegations under the Whistleblower’s Act and the Florida Civil Rights Act were intertwined and that at least some of them stated a cause of action precluding summary judgment).

Defendants argue that,. even if plaintiff set forth sufficient facts to establish common law tort claims, the Florida Workers’ Compensation Act, §§ 440.015 and 440.11, Florida Statutes (2009), is the exclusive remedy against her employer. “[Workers’ compensation generally is the sole tort remedy available to a worker injured in a manner that falls within the broad scope and policies of the workers’ compensation statute.” Byrd v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099, 1100 (Fla.1989). Section - 440.11 states that workers’ compensation is the exclusive remedy “in place of all other liability, including vicarious liability, of such employer to any third-party tortfea-sor and to the employee ... on account of such injury or death.” Section 440.02(19), Florida Statutes (2009), defines “injury” as a “personal injury or death by accident arising out of and in the course of employment. ... This damage must specifically occur as the result of an accident in the normal course of employment.”

In Byrd, the Florida Supreme Court adopted a two-part test to determine what types of injuries are compensable under workers’ compensation. 552 So.2d at 1104. First, the injury must “ ‘arise out of employment in the sense that it is caused by a risk inherent in the nature of the work in question.” Id. at 1104 n. 7 (citing Strother v. Morrison Cafeteria, 383 So.2d 623, 624-26 (Fla.1980). “It is immaterial whether the injury is caused by an intentional or unintentional act, so long as that act arose out of this type of risk.” Id. “Second, the injury must occur ‘in the course of employment.” Id. In other words, the question rests on whether the injury “substantially originated from the ‘time and space’ of work, resulting in an injury directly linked to the work environment or work-related activities.” Id. (citing Strother, 383 So.2d at 628).

Under this analysis, the Florida Supreme Court held that “as a matter of public policy, sexual harassment should not and cannot be recognized as a ‘risk’ inherent in any work environment.” Id. Moreover, the exclusiveness of recovery under workers’ compensation does not apply “[w]hen an employer commits an intentional tort that causes the injury or death of the employee.” See § 440.11(b). In order to circumvent recovery under workers’ compensation, the employee must prove, “by clear and convincing evidence, that ... [t]he employer deliberately intended to injure the employee; or ... [t]he employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings ... was virtually certain to result in injury or death to the employee.” See § 440.11(b)l and 2.

Accordingly, an employer cannot intentionally injure an employee and enjoy immunity from suit under the Workers’ Compensation Act. See § 440.11(b). “[A]n injury intentionally inflicted by the employer himself or his or her alter egos does not fall within these principles, since workers’ compensation was not established to excuse misconduct of this type.” Byrd, 552 So.2d at 1101 n. 5. (citing Schwartz v. Zippy Mart, Inc. 470 So.2d 720, 724 (Fla. 1st DCA 1985)). While the supreme court noted that Florida’s workers’ compensation act covered “a wide variety of injuries caused by intentional torts, provided there [was] a sufficient nexus with the activities of the workplace itself,” the court did not recognize a new cause of action for common law negligence for sexual harassment. Byrd, 552 So.2d at 1101. However, “it appears that the [Byrd] [e]ourt simply adopted the more narrow position that corporations that allow employees to commit intentional torts such as battery. ... as part of a sexually harassing environment can no longer hide behind the workers’ compensation exclusion rule to escape liability.” Vernon v. Med. Mgmt. Assocs. of Margate, Inc., 912 F.Supp. 1549, 1564 (S.D.Fla.1996) (emphasis added).

In Doe v. Footstar Corp., 980 So.2d 1266, 1267-68 (Fla. 2d DCA 2008), the second district held that that the worker’s compensation exclusivity rule barred the plaintiffs’ common law causes of action against their child’s employer for negligent hiring, retention, and supervision and for assault, battery, and rape. Although the court cited Byrd as authority, we disagree with the second district’s reasoning in Doe and do not interpret Byrd as disallowing plaintiffs battery claim under the workers’ compensation exclusivity rule. In Byrd, the supreme court held that the workers’ compensation exclusivity rule did not bar the plaintiffs’ claim alleging “the specific type of battery” arising from sexual harassment against an employer. 552 So.2d at 1104. There, the plaintiffs based their claims on incidents “in which male employees repeatedly touched the women and made verbal sexual advances on them in the workplace during working hours.” Id. at 1100. The supreme court reasoned that the workers’ compensation exclusivity rule did not bar the claims “because these causes of action address the very essence of the policies against sexual harassment— an injury to intangible personal rights” and “we do not perceive the battery alleged in this instance as involving wage loss or workplace injury, but an unlawful intrusion upon personal rights....” Id. at 1104, 1105 n. 8. Similarly, in this case, the plaintiffs injuries allegedly resulted from a battery, which is not directly related to the work environment or work-related activities. For these reasons, we certify conflict with Doe.

We next consider whether the trial court erred in granting the defendants’ attorney’s fees and costs pursuant to section 57.105(1), Florida Statutes (2009). Here, it appears that the trial court based its award of section 57.105 attorney’s fees upon its erroneous determination that plaintiff improperly filed her complaint in circuit court before complying with the pre-suit procedures set forth under Title VII and the FCRA. Accordingly, we reverse the trial court’s award of attorney’s fees and costs under section 57.105.

Reversed and Remanded.

GERBER, J., and ROSENBERG, ROBIN L„ Associate Judge, concur.

      . While these claims were pending, plaintiff also filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) for sexual harassment, intending to later amend her complaint to include a count for violations of Title VII and the Florida Civil Rights Act once the EEOC made a reasonable cause determination or 180 days passed without a determination.


text:
    Sigifredo BENITEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2428.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before GERSTEN, WELLS, and SALTER, JJ.
   WELLS, Judge.

Sigifredo Benitez appeals from an order revoking his probation and resulting sentence. He argues that what transpired at the hearing below amounted to a denial of his constitutional right to be “present” in court during a critical stage of the proceedings because no interpreter was present. We agree and reverse and remand on that basis.

In Summerall v. State, 588 So.2d 31, 32 (Fla. 3d DCA 1991), we observed that “[w]ithout question, the pronouncement of a verdict and sentence in a ... probation revocation hearing is a critical stage of the proceedings at which the defendant is entitled to be present, absent a voluntary waiver of same by the defendant. See Francis v. State, 413 So.2d 1175 (Fla.1982); Quartennan v. State, 506 So.2d 50, 52 (Fla. 2d DCA 1987), approved, 527 So.2d 1380 (Fla.1988); Fla. R. Crim. P. 3.180(a)(8), (9).” Likewise in Monte v. State, 443 So.2d 339, 342 (Fla. 2d DCA 1983), the court observed that “[t]he requirement of an interpreter at the sentencing hearing ensures that a non-English speaking defendant is truly ‘present’ at sentencing as contemplated by Florida Rule of Criminal Procedure 3.180(a)(9) and not merely physically there without the ability to understand or comment on the proceedings which will culminate in a circumscription of his liberty.” For, as explained in Cadet v. State, 809 So.2d 43, 45 (Fla. 4th DCA 2002) (quoting Tehrani v. State, 764 So.2d 895, 898 (Fla. 5th DCA 2000)):

A non-English speaking defendant has the right to an interpreter, a right grounded on due process and confrontation considerations of the Constitution. Suarez v. State, 481 So.2d 1201 (Fla. 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986). The right is not necessarily waived by the failure to assert it, since a defendant’s inability to understand the language may be the cause of the failure to assert his rights. State v. Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984), approved in Suarez, 481 So.2d at 1204. Once the trial court is aware that an accused has difficulty with the English language, the court should determine whether a defendant understands English sufficiently to aid in his defense, much as the court has a duty to determine whether a defendant is mentally competent. 344 N.W.2d at 188.

Here, we cannot conclude that this right was satisfied.

In 1992, with an interpreter present, defendant entered into a guilty plea to “attempted capital sexual battery as reduced” and kidnapping. He was placed on probation in 2001, and in 2002, the Department of Corrections filed an affidavit of violation of probation. At the August 7, 2009 hearing on the matter, the defense advised the court of the need for an interpreter. A plea was discussed and the State made an offer. The trial court declined that offer and ordered that testimony be taken. The defense again asked for an interpreter, and a break was taken. On the interpreter’s arrival, the judge explained what had happened, and the violation hearing began, wherein defendant’s supervising authorities gave testimony supporting three of the violations alleged — failing to submit reports, changing his residence without. consent, and failing to submit to a polygraph examination.

At the August 14, 2009 hearing which followed, however, when defense counsel pointed out — two times while the judge was announcing his ruling and imposing sentence — that the defendant needed an interpreter and no interpreter was present, the judge failed to wait for the arrival of an interpreter and continued to making his findings and impose sentence. Then, when the interpreter arrived, the judge told the defense attorney to take the defendant “into the back and tell him the good news,” i.e. that the judge found him in violation of probation, revoked his probation, and sentenced him to twenty two years in prison followed by probation for life. This was insufficient and compels a remand to the court below with directions to reenter a decision and reimpose sentence, all with the defendant “present”— that is, with an interpreter. See Tehrani v. State, 764 So.2d at 898; Smmnerall, 588 So.2d at 32; Monte, 443 So.2d at 342.

This analysis makes it unnecessary to address the defendant’s second claim of error, a point which the State here concedes, that the trial court’s written Order of Probation Violation did not conform to its oral pronouncements. See Wesbert v. State, 782 So.2d 545 (Fla. 3d DCA 2001); Suarez v. State, 761 So.2d 1266 (Fla. 3d DCA 2000); Masis v. State, 758 So.2d 1290 (Fla. 3d DCA 2000); Salvatierra, v. State, 691 So.2d 32 (Fla. 3d DCA 1997).

Accordingly, the revocation of probation is reversed and the sentence imposed is vacated.

      . The affidavit alleged defendant's violation of probation by: (1) failing to make a full and truthful report to his Probation Supervisor by the fifth day of the month on the form provided as of October 16, 2002, and failing to submit the written report for the month of September 2002; (2) failing to contribute to the cost of supervision; (3) changing his residence without first procuring the consent of his probation officer; and (4) failing to complete the Mentally Disordered Sex Offender Treatment Program (MDSO) as ordered. Thereafter the affidavit was amended to add: (1) failing to submit to an October 2002 polygraph examination and (2) failing to report in person to the sheriff's office in the county in which he resided in violation of section 943.0435.


text:
    Ronald NELOMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1747.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    See also, 2008 WL 4186972.
    Kevin J. Kulik, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before GERSTEN, WELLS, and SHEPHERD, JJ.
   SHEPHERD, J.

This is an appeal from the trial court’s denial of a petition for a writ of habeas corpus, seeking leave to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure Rule 3.850, out of time, on the ground of ineffective assistance of his privately retained postconviction counsel. We affirm the decision of the trial court.

FACTUAL BACKGROUND

This case arises out of a judgment of conviction and sentence of the appellant, Ronald Neloms, for first-degree felony murder with a firearm and attempted robbery with a firearm. Following his conviction and sentence, Neloms and his family retained Norman Malinski to represent Neloms on his direct appeal to this Court. On December 28, 2005, we affirmed the appellant’s conviction and sentence without opinion. See Neloms v. State, 917 So.2d 878 (Fla. 3d DCA 2005) (table). The mandate issued on January 13, 2006.

On December 7, 2007, Malinski was retained by Neloms’ family to represent Nel-oms in postconviction proceedings. On March 14, 2008, Malinski filed a Verified Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court in and for the Southern District of Florida. The petition was denied on September 8, 2008. Neloms learned of the disposition on January 19, 2009. The only communication between Neloms and Malinski between the time Malinski was retained for postconviction purposes on December 7, 2007, and the denial of the federal habeas petition, was the correspondence necessary to secure Neloms’ verification of the federal habeas petition.

After learning of the denial of the federal habeas petition, Neloms consulted a prison law clerk, who advised him that his counsel failed to follow the much more usual course of seeking postconviction relief in the state court before proceeding to the United States District Court. On February 6, 2009, Neloms filed his pro se petition for writ of habeas corpus, seeking leave to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

In the petition, Neloms asserted that he at all times “understood” Malinski “was going to proceed with filing a motion for postconviction relief [in state court] alleging claims of ineffective assistance of trial counsel.” He based his understanding on a letter he received from Malinski, transmitting a copy of the Initial Brief during his representation of Neloms on the direct appeal. Malinski wrote:

You are right that the “next round” is coming. Either the Court of Appeals will reverse the judgment and sentence, or there are additional methods available to attack the proceedings. Some of those methods will involve what your lawyer did not do in preserving the Record and in preserving your rights.

At an evidentiary hearing held'on the petition, Neloms’ mother, Debra Neloms, testified she hired and paid Malinski to represent her son on the direct appeal and in postconviction proceedings. Because her son was in prison, she was the “lead” family member for this purpose. She professed not to understand the difference between a state postconviction proceeding and a federal writ of habeas corpus. She testified she simply hired Malinski “to do the work,” trusting that, because he was paid, “he’s going to do what he’s suppose[d] to do.” She received no advice or warning from Malinski before her son’s deadline for filing a Rule 3.850 motion expired.

Norman Malinski’s testimony contrasts with that of Ms. Neloms. He testified he specifically was hired to file only the federal petition. According to Malinski, he “outlined” to Ms. Neloms the other avenues available for purposes of seeking relief from the judgment and sentence, including “proceeding] in the State system.” However, Malinski said Ms. Neloms “had no confidence” or interest in the State system. Malinski also felt that proceeding in the federal system “would perhaps be a fresher review.”

Based upon this testimony, the trial court found “there was [no] explicit hiring of Mr. Malinski to file the 3.850,” and further that “it was [not] sufficiently proven ... that there was a mistake on counsel ... in failing to file [a 3.850 motion].” The trial court denied the petition.

ANALYSIS

With limited exceptions, Florida Rule of Criminal Procedure 3.850 is the mechanism through which those convicted of noncapital crimes, including crimes that may be classified as capital in the Florida Statutes, but where the defendant was not sentenced to death, are permitted to challenge their convictions and sentences in the Florida courts. See Baker v. State, 878 So.2d 1236, 1245 (Fla.2004). Initially adopted as Rule 1 of the Florida Rules of Criminal Procedure by the Florida Supreme Court in the wake of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the rule today reads as follows:

(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapi-tal case or more than 1 year after the judgment and sentence become final in a capital case in which a death sentence has been imposed unless it alleges that
(1) the facts on which the claim is predicated were unknown to the mov-ant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, or
(2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, or
(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.

Fla. R. Crim. P. 3.850(b) (second emphasis added).

Neloms asserts the trial court misapplied the exception found in subsection (b)(3) to his case. The trial court found the evidence was insufficient to support a finding that Malinski was retained to file a Rule 3.850 motion. In so doing, the trial judge stated he particularly was “struck” by Malinski’s testimony that “Ms. Neloms was not comfortable [with] or had no confidence in the State’s system.” We conclude there was competent substantial evidence to support the finding of the trial court. See Jones v. State, 732 So.2d 313, 319 (Fla.1999) (reviewing for competent substantial evidence a trial court’s finding of no ineffectiveness of trial counsel); see also Drew v. Dep’t of Corrs., 297 F.3d 1278 (11th Cir.2002) (considering Rule 3.850(b)(3) motion in context of federal ha-beas petition); accord Nelson v. McNeil, Case No. 3:08-cv-1168-J-12TEM, 2010 WL 2103021, at *2-3 (M.D.Fla. May 20, 2010).

Finally, as to any claim Malinski himself was ineffective by passing over state court remedies in this case, we note that claims of ineffective assistance of postconviction counsel do not provide a valid basis for relief. See Waterhouse v. State, 792 So.2d 1176, 1193 (Fla.2001) (citing State ex rel. Butterworth v. Kenny, 714 So.2d 404, 408 (Fla.1998)).

Affirmed.

      . Neloms and his family retained new counsel to represent Neloms on the evidentiary hearing and this appeal.


author: DAMOORGIAN, J.

text:
    Prentice STANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2819.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

Defendant, Prentice Stanley, appeals his judgment and sentence for first degree murder and leaving the scene of an accident resulting in death. Stanley was convicted of both counts and sentenced to life in prison. Stanley raises four issues for our review. Finding no merit to Defendant’s arguments, we affirm his judgment and sentence.

By way of background, the victim, Mah-moud Mansour, was the general manager of a clothing manufacturer in Ft. Lauder-dale, Florida. While at work, Mansour observed a 2004 Nissan Titan being driven by someone later identified as Stanley enter the company parking lot and drive up to a metal container that held boxes of clothing. Mansour became suspicious and attempted to close the parking lot gate. The truck’s driver drove the truck through the gate, running over Mansour who later died of his injuries.

Stanley was arrested for the crime and charged by indictment with first degree murder and leaving the scene of an accident resulting in death. Testimony at trial revealed that the truck used in the crime had recently been reported stolen. It was found abandoned near the scene of the crime. Stanley’s fingerprints were found in multiple places on the truck. Additionally, a friend of Stanley’s testified that Stanley had confessed to him that he was the perpetrator. This friend contacted the police and alerted them to Stanley’s whereabouts.

On appeal, Stanley argues that the trial court erred by: 1) instructing the jury that Stanley could be convicted on either of two theories of first degree murder; to wit: premeditated murder and felony murder despite the fact that the indictment charged only felony murder; 2) introducing 911 tapes which allegedly contained hearsay statements; and 3) admitting seventeen autopsy photographs into evidence. Stanley also argues that his conviction violates the double jeopardy clause.

Stanley first argues that the Grand Jury’s indictment charged him under a felony murder theory while the jury’s instructions allowed for a conviction under a premeditated murder theory. The True Bill returned by the Grand Jury stated that Stanley “[Ujnlawfully and feloniously while ... engaged in the commission of, attempting to commit or escaping from the immediate scene of a Burglary and/or a Robbery, did kill and murder the said Mahmoud Mansour against the form of the statute in such case pursuant to [sjections 782.04(1).”

Section 782.04, Florida Statutes (2007), titled “Murder,” addresses “[t]he unlawful killing of a human being” and covers both killings “perpetrated from a premeditated design” and those “committed by a person engaged in the perpetration” of certain felonies. §§ 782.04(l)(a)l. and 782.04(l)(a)2.

Stanley contends that the Grand Jury indicted him solely for first degree felony murder. However, when the court provided the jury with its instructions, it indicated that when a defendant is charged with first degree murder, he could be convicted on either a theory of premeditation or a theory of felony murder. The court then described the elements of both premeditated murder and felony murder. At closing argument, the State repeated the claim that Stanley could be convicted of first degree murder on a premeditation theory. The jury found that “[t]he Defendant is [gjuilty of Murder in the First Degree, as charged in the indictment.”

Stanley did not object at the time of the alleged errors. If a jury instruction is not objected to at the time of the alleged error, the error must be fundamental to be raised on appeal. State v. Delva, 575 So.2d 643, 645 (Fla.1991).

According to Stanley, the trial court’s jury instructions and the prosecutor’s closing statement constructively amended the indictment. See United States v. Barrios-Perez, 317 F.3d 777, 779 (8th Cir.2003). A constructive amendment of a charging document “ ‘allow[s] the jury to convict the defendant of an offense different from or in addition to the offenses alleged in the indictment.’ ” Id. at 779 (quoting United States v. Emery, 186 F.3d 921, 927 (8th Cir.1999)). This is a due process violation which constitutes fundamental error. Crain v. State, 894 So.2d 59, 69 (Fla.2004).

The law does not support Stanley’s claim that the indictment was constructively amended. In O’Callaghan v. State, 429 So.2d 691, 695 (Fla.1983), our Supreme Court held that “ ‘the state does not have to charge felony murder in the indictment but may prosecute the charge of first-degree murder under a theory of felony murder when the indictment charges premeditated murder.’” Id. at 695 (quoting State v. Pinder, 375 So.2d 836, 839 (Fla.1979)). Finding no prejudice, the court concluded that a criminal defendant, “because of our reciprocal discovery rules, [has] full knowledge of both the charges and the evidence that the state would submit at trial.” Id. at 695; see also Kearse v. State, 662 So.2d 677, 682 (Fla.1995) (“The State need not charge felony murder in an indictment in order to prosecute a defendant under alternative theories of premeditated and felony murder when the indictment charges premeditated murder.”)-

We hold that if a conviction under a felony murder- theory is legal where the indictment charged premeditated murder, as was the case in O’Callaghan, then a conviction under a premeditated murder theory is legal where the indictment charged felony murder, as is the case here. See also Deparvine v. State, 995 So.2d 351 (Fla.2008).

Stanley next argues that the trial court erred by permitting the introduction of recordings of 911 calls. At trial, the State moved to enter into evidence several 911 calls made by witnesses to the crime. Some of these witnesses did not testify at trial. Defense counsel objected on hearsay grounds to the introduction of “any 911 calls that are not from a person who has testified in this case.” The State argued that while the recordings were hearsay, they were nonetheless admissible as either excited utterances or present sense impressions.

“[Wjhether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006). The excited utterance exception to the hearsay rule applies if the statement in question is “[a] statement or excited utterance relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition.” § 90.803(2), Fla. Stat. (2007).

In Barron v. State, 990 So.2d 1098 (Fla. 3d DCA 2007), the defendant was alleged to have participated in an armed home invasion, in which one of the witnesses was shot. Immediately after the shooting, several anonymous 911 calls were made to obtain assistance. Id. at 1101. In concluding that the trial court did not err by permitting the introduction of the 911 tapes, the district court noted that “[t]he anonymous calls were placed close to the violent events, thereby precluding an opportunity to contrive or misrepresent.” Id. In this case, the 911 calls were made immediately after the crime, were not in response to the police investigation, and were made to request assistance. Accordingly, the 911 tapes qualify as excited utterances pursuant to section 90.803(2) and were properly admitted.

Stanley’s third point on appeal is that the trial court erred by admitting into evidence seventeen autopsy photos of the victim. Stanley argues that the photographs were not relevant as it was undisputed that the victim died as a result of being struck by the vehicle.

At trial, the State called the assistant medical examiner to the stand in order to question him' about the victim’s injuries. While the medical examiner was on the stand, the State attempted to introduce seventeen autopsy photographs into evidence. The photographs displayed the various externally visible injuries sustained by the victim, and pictures of his blood stained clothes. Stanley objected, arguing that the pictures “ha[d] no value except to inflame the jury.” The State countered that the photographs were needed in order to establish, through the medical examiner, that the defendant intentionally ran over the victim causing injury and death. The trial court overruled the objection, explaining that “[ijndividually, they represent different injuries, that came about as a result of this situation. They are cleaned up. They are not the type that would normally incite some type of disgust or sympathy, these are simply what the ME is doing.” The photographs were then hsed by the medical examiner to explain the victim’s injuries and cause of death, which was crushed force chest injury. The medical examiner also reviewed all of the victim’s injuries, relying on the autopsy photographs as visual aids.

A trial court’s decision to admit photographic evidence will not be disturbed absent an abuse of discretion. Brooks v. State, 787 So.2d 765, 781 (Fla.2001). In order to be admissible, photographic evidence must be relevant to a material fact in dispute. Boyd v. State, 910 So.2d 167, 191 (Fla.2005). However, photographs will not be admissible if they are so shocking in nature as to defeat the value of their relevance. Hertz v. State, 803 So.2d 629, 641 (Fla.2001). Autopsy photographs may be admissible when they are necessary to explain a medical examiner’s testimony, the victim’s injuries, the manner of death, or the location of the wounds. Id. at. 642. The photographs were relevant to establishing that Stanley intentionally ran over the victim. Moreover, the photographs were not unnecessarily disturbing considering the subject matter.

Finally, Stanley argues that his conviction violates double jeopardy. U.S. Const, amend. V. He contends that because he was convicted of both leaving the scene of the accident resulting in death and first degree murder of the same victim, his constitutional rights have been violated. Determining whether double jeopardy is violated based upon undisputed facts is a legal determination subject to a de novo standard of review. Labovick v. State, 958 So.2d 1065, 1068 (Fla. 4th DCA 2007).

The double jeopardy clause of the United States Constitution is violated where a defendant receives multiple punishments for a single offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In determining whether a defendant has been exposed to double jeopardy as a result of multiple convictions, courts employ the Blockburger test, as codified in Section 775.021, Florida Statutes (2007). Under this test, if the legislature does not clearly state whether a defendant may be convicted of both of two statutorily defined crimes, a defendant’s double jeopardy rights will have been violated if he is convicted of two offenses and (1) the offenses require identical elements of proof; (2) the offenses are degrees of the same offense; or (3) one of the offenses is a lesser included offense of the other offense. § 775.021(4)(b), Fla. Stat. Under the Blockburger test, Florida courts have determined that “ ‘only one homicide conviction and sentence may be imposed for a single death.’ ” Rodriguez v. State, 875 So.2d 642, 645 (Fla. 2d DCA 2004) (quoting Houser v. State, 474 So.2d 1193, 1196 (Fla.1985)).

Lawrence v. State, 801 So.2d 293 (Fla. 2d DCA 2001) is on point. There, the court reasoned that the one homicide conviction per death rule did not apply when the crimes charged were leaving the scene of an accident involving death and DUI manslaughter. The court in Lam-ence held that “[the defendant] was not punished under two separate homicide statutes for a single death. Instead, in this case [the defendant] was convicted of a homicide charge and a subsequent traffic felony.” Id. at 294. The crime of leaving the scene of an accident resulting in death is intended to punish behavior that takes place after the actions which resulted in the death of the victim. Id. at 295. The State correctly argues that the charge of leaving the scene of an accident resulting in death does not require proof that the defendant caused the death. Adopting the reasoning in Lawrence to this case, we conclude that Stanley’s convictions on both counts do not constitute double jeopardy.

Affirmed.

MAY and LEVINE, JJ., concur.

      . The Barron court also stated that because “the calls were made to obtain assistance rather tiran in response to police questioning, we additionally conclude that they were non-testimonial in nature and, therefore, do not violate the Sixth Amendment.” Barron, 990 So.2d at 1101. See also Ware v. State, 596 So.2d 1200, 1201 (Fla. 3d DCA 1992); Stiney v. State, 699 So.2d 662, 669 (Fla.1997). We reach the same holding in this case.

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