author: PER CURIAM. BASCHAB, Presiding Judge,

text:
    Benjamin Chadwick PATTERSON v. STATE of Alabama.
    CR-06-1793.
    Court of Criminal Appeals of Alabama.
    April 4, 2008.
    Rehearing Denied May 23, 2008.
    Certiorari Denied Sept. 12, 2008 Alabama Supreme Court 1071230.

      John C. Robbins, Birmingham, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Benjamin Chadwick Patterson, was convicted of trafficking in illegal drugs, a violation of § 13A-12-231(3), Ala.Code 1975, and failure to affix tax stamps, a violation of § 40-17A-4, Ala. Code 1975. The circuit court sentenced Patterson to serve concurrent terms of 25 years in prison on the trafficking conviction and 2 years in prison on the failure to affix tax stamps conviction. It also imposed a $500,000 fine on the trafficking conviction pursuant to § 13A-12-231(3)c., Ala.Code 1975. This appeal followed.

The State’s evidence tended to show that on January 31, 2006, Officer Jason Marlin of the Birmingham Police Department stopped a burgundy 2003 Chevy Tahoe sport utility vehicle at the Best Western Hotel parking lot on University Boulevard. Jason Lee was driving the vehicle; Patterson was in the front passenger seat. When Officer Marlin opened the passenger side door he saw Patterson attempting to conceal a plastic bag. He tried to stuff the bag between the seat and the console. When Officer Marlin searched the vehicle he found a plastic bag containing a large number of pills. The certificate of analysis indicated that the bag contained 91 tablets, that the tablets contained oxycodone, and that they weighed 39.40 grams.

I.

Patterson first argues that the State did not present sufficient evidence to support his conviction for trafficking because it did not prove that oxycodone is an illegal drug pursuant to § 13A-12-231(3), Ala.Code 1975.

The indictment returned against Patterson alleged that Patterson

“did knowingly sell, manufacture, deliver, or bring into this state, or was knowingly in actual or constructive possession of any morphine, opium, or any salt, isomer or salt of an isomer, to-wit: 28 grams or more, but less than 56 grams of oxycodone or of a mixture containing oxycodone, a controlled substance, in violation of Section 13A-12-231 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”

(C.R. 22.)

Section 13A-12-23K3), Ala.Code 1975, states:

“Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, four grams or more of any morphine, opium, or any salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 20-2-23(2) or Section 20-2-25(a)a., or four grams or more of any mixture containing any such substance, is guilty of a felony, which felony shall be known as ‘trafficking in illegal drugs.’ If the quantity involved:
“c. Is 28 grams or more, but less than 56 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and to pay a fine of five hundred thousand dollars ($500,000).”

(Emphasis added.)

In this case the State introduced a certificate of analysis that was admitted by stipulation of the parties. The certificate indicated that the evidence in this case was “one (1) plastic packet holding ninety-one (91) white tablets imprinted ‘Endo 602,’ weighing 39.40 grams.” (C.R. 65.) The results section of the report stated: “Oxy-codone [a C-II controlled substance].”

Section 20-2-20(a), Ala.Code 1975, states: “The State Board of Health, unless otherwise specified, shall administer this chapter and may add substances to or delete or reschedule all substances enumerated in the schedules in Section 20-2-23, 20-20-25, 20-2-27, 20-2-29, or 20-2-31 pursuant to the procedures of the State Board of Health.” Schedule II of the list of controlled substances promulgated by the State Board of Heath, included in the Alabama Administrative Code Department of Public Health Chapter 420-7-03, Opp., Schedule II, in effect at the time of the offense reads as follows:

“(1) Opium and opiate, and any salt, compound, derivative, or preparation of opium and opiate, excluding apomor-phine, thebaine-derived butorphanol, dextrorphan, nalbuphine, nalmefene, na-loxone, and naltrexone, and their respective salts, but including the following:
“1. Raw opium-
“2. Opium extracts....
“3. Opium fluid extracts....
“4. Powdered opium....
“5. Granulated opium....
“6. Tincture of opium....
“7. Codeine....
“8. Dihydroetorphine_
“9. Ethylmorphine....
“10. Etorphine hydrochloride....
“11. Hydrocodone....
“12. Hydromorphone....
“13. Metopon....
“14. Morphine-
“15. Oxycodone....
“16. Oxymorphone....
“17. Thebaine.... ”

Section 20-2-2(16), Ala.Code 1975, defines “opiate” as:

“Any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. Such term does not include, unless specifically designated as controlled under this section, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). Such term does include its racemic and levo-rotatory forms.”

See also Chapter 420-7-2-.02(6), Ala. Admin. Code (Department of Public Health).

An opiate is “a drug ... containing or derived from opium.” Meriam-Webster’s Collegiate Dictionary 870 (11th ed.2003). Section 13A-12-231(3), specifically provides that “[a]ny person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, four grams or more of any morphine, opium, or any salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 20-2-23(2) or Section 20-2-25(l)a., or four grams or more of any mixture containing any such substance is guilty of a felony, which felony shall be known as ‘trafficking in illegal drugs.’ ” (Emphasis added.) Section 20-2-25, Ala.Code 1975, is a list of Schedule II controlled substances adopted by the legislature, and § 20-2-25(l)a. lists “[o]pium and opiate and any salt, compound, derivative or preparation of opium or opiate.” (Emphasis added.) Although § 13A-12-231(3) does not specifically list opiates it does specifically include opiates by its reference to § 20-2-25(l)a. This Court has previously recognized that opiates are included within the prohibition in § 13A-12-231(3). See Sharpe v. State, 710 So.2d 1373 (Ala.Crim.App.1997).

Thus, the State was not required to present scientific evidence that oxycodone is actually opium to prove its case. Because oxycodone is included in the list of Schedule II controlled substances adopted by the Board of Health under the designation “opium and opiate” and § 13A-12-231(3) specifically prohibits trafficking in “any morphine, opium, or any salt, isomer, or salt of an isomer thereof ... as described in ... Section 20-2-25(l)a.,” which includes any “[ojpium and opiate and any salt, compound, derivative or preparation of opium or opiate,” § 20-2-25(l)a., oxyco-done is, as a matter of law, an opium or opiate included within the prohibition in § 13A-12-231(3). The certificate of analysis, which the parties stipulated to and which reflects that the pills in Patterson’s possession were oxycodone, was sufficient to establish a prima facie case of trafficking in illegal drugs under § 13A-12-231(3).

Our neighboring state of Mississippi has reached the same conclusion. In Lawrence v. State, 928 So.2d 894 (Miss.Ct.App.2005), the Mississippi Court of Appeals stated:

“[Wjhen a defendant is charged with possession of a specific substance that is defined by statute as a ‘controlled’ substance, the State need only prove that the substance is one that is listed in the schedules. Therefore, even though the State in Lawrence’s case did not offer any testimony as to the Schedule II classification of Oxycodone, the State still proved all the essential elements of its case. By proving that the pills that Lawrence transferred were Oxycodone, the State proved that Lawrence transferred a controlled substance, because Oxycodone is in fact a Schedule II controlled substance. The designation of Oxycodone as a controlled substance was not a question of fact for the jury.”

928 So.2d at 899. The State presented sufficient evidence to support Patterson’s conviction for trafficking in 39.40 grams of oxycodone — a Schedule II controlled substance.

II.

Patterson next argues that his sentence of 25 years’ imprisonment, the mandatory minimum sentence provided by statute, is grossly disproportionate to the crime committed and violates the Eight Amendment to the United States Constitution. He cites this Court’s decision in Wilson v. State, 830 So.2d 765 (Ala.Crim.App.2001).

In Wilson, a majority of this Court held that Wilson’s sentence of life imprisonment without the possibility of parole for selling 97.8 grams of a mixture containing morphine, Wilson’s first offense, was grossly disproportionate to the crime she had committed. The court in Wilson adopted the test first articulated by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and later relied on in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Under that test, we must examine: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other defendants in the jurisdiction; and (3) the sentences imposed in other jurisdictions.

In this case, Patterson admitted that he used drugs frequently, that he would buy enough oxycodone to last two or three days, and that he took seven or eight pills a day. In 2003, he was arrested for possessing 35 “ecstasy” pills. In 2004, he was arrested for possessing seven bags of a substance containing methamphetamines. The mandatory 25-year sentence for trafficking is the highest mandatory minimum imposed in the State for any crime other than a capital offense. Last, other states impose similar sentences for the same offense. See § 893.135, Florida Statutes 1991; S.C.Code Ann. § 44-53-370(e)(2)(c); Va.Code Ann. § 18.2-248(c); Ga.Code Ann. § 16-13-31.

In Paey v. State, 943 So.2d 919 (Fla.Dist.Ct.App.2006), a Florida District Court of Appeals stated:

“The Florida statutes addressing the subject demonstrate that the legislature considers oxycodone to be a potentially dangerous substance. Section 893.03 contains standards and schedules for controlled substances. Oxycodone, a derivative of opium, is listed as a Schedule II substance. § 893.03(2)(a)(l)(o). ‘A substance in Schedule II has a high potential for abuse’ and ‘abuse of the substance may lead to severe psychological or physical dependence.’ § 893.03(2)(a). Because of oxycodone’s high potential for abuse and the effects of such abuse, the Florida Legislature could rationally conclude that the threat posed to the individual and to society by possession of at least twenty-eight grams of oxycodone is sufficient to warrant the deterrent and retributive effect of a twenty-five-year mandatory minimum sentence.
“The twenty-five-year mandatory minimum prison sentence the Florida Legislature prescribed in section 893.135(l)(c)(l)(c) for trafficking in twenty-eight or more grams of oxyco-done falls within the outer limits of a rational weighing of the alternatives concerning an appropriate prison term for this offense. This is not one of those rare cases in which the sentence imposed is so grossly disproportionate in comparison to the crime committed that it is cruel and unusual. For this reason, we hold that Mr. Paey’s sentences for trafficking in oxycodone do not violate the Eighth Amendment’s prohibition against cruel and unusual punishments.”

943 So.2d at 924-26. Patterson’s sentence does not violate the Eighth Amendment to the United States Constitution.

III.

Patterson last argues that the State engaged in selective prosecution by not allowing him to plead guilty to possession of a controlled substance. Specifically, he asserts that he should have been offered the same deal as his codefendant, Jason Lee. Lee was allowed to plead guilty to possession of a controlled substance in exchange for a two-year sentence.

“ ‘ “[A] defendant who alleges an equal protection violation has the burden of proving ... ‘the existence of purposeful discrimination.’ ” McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987).
“ ‘ “This court has previously held that, although no clear standards exist for quantum or type of proof sufficient to illustrate discriminatory enforcement of a statute ..., three elements must generally be proved: selectivity in enforcement; selectivity that is intentional; and selectivity based upon some invidious or unjustifiable standard such as race, religion, or other arbitrary classification. It is insufficient merely to show that other violators have not been prosecuted, that there has been laxity in enforcement, or that there has been conscious exercise of some selectivity in enforcement.'’
‘DeShazo v. City of Huntsville, 416 So.2d 1100, 1103 (Ala.Cr.App.1982) (emphasis added). See also Carroll v. State, 599 So.2d 1243, 1244-45 (Ala.Cr.App.1992).’ ”

Wild v. State, 761 So.2d 261, 263 (Ala.Crim.App.1999), quoting Facion v. State, 627 So.2d 1144, 1145 (Ala.Crim.App.1993).

The record is totally devoid of the elements necessary to show selective prosecution. There is no indication as to why the State offered Lee the plea agreement. Patterson failed to meet his burden of proof. Thus, he is due no relief on this claim.

For the foregoing reasons, Patterson’s convictions are due to be affirmed.

AFFIRMED.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur; BASCHAB, P.J., dissents, with opinion.

BASCHAB, Presiding Judge,

dissenting.

Because I disagree with the majority’s conclusion that the State was not required to present scientific evidence that oxyco-done is actually opium and its conclusion that, because oxycodone is included in the Schedule II list of controlled substances, it is, as a matter of law, included within the prohibition in § 13A-12-231(3), Ala.Code 1975,1 must respectfully dissent.

Schedule II lists oxycodone under an umbrella category of opium and opiates. However, § 13A-12-23R3), Ala.Code 1975, does not specifically include opiates. Rather, it includes only opium-based substances and morphine. Further, the definition of an opiate as set forth in Chapter 120-7-2-02(6), Ala. Admin. Code (DepaHment of Public Health) does not require that a substance actually contain opium. Because Schedule II does not include detailed information regarding the nature of the substances included under the umbrella term of opium and opiates, it is inappropriate for this court to rely solely on the list of Schedule II substances to conclude that oxycodone is an illegal drug under § 13A-12-231(3), Ala.Code 1975. For example, morphine is included in the Schedule II list of opium and opiates. However, § 13A-12-231(3), Ala.Code 1975, specifically designates morphine as an illegal drug under that section. This implies that the mere fact that morphine is included on the Schedule II list of opium and opiates does not necessarily dictate a finding that it contains opium and would otherwise be included in § 13A-12-231(3), Ala.Code 1975.

Also, I do not believe that Lawrence v. State, 928 So.2d 894 (Miss.Ct.App.2005), supports the majority’s holding. Lawrence does not address the burden of proof in a prosecution for trafficking in illegal drugs. Rather, it involves a conviction for transferring a controlled substance. In that case, Lawrence argued that, even though oxycodone was on the list of controlled substances, the prosecution must still prove that it was, in fact, a Schedule II controlled substance. The Mississippi Court of Appeals held that, “when a defendant is charged with possession of a specific substance that is defined by statute as a ‘controlled’ substance, the State need only prove that the substance is one that is listed in the schedules.” Lawrence, 928 So.2d at 899. Of course, inclusion on a list of controlled substances would obviate the need to prove that the substance is indeed a controlled substance. Although Lawrence supports a general proposition of law regarding substances that are included in the schedules of controlled substances, it does not address the specific issue here.

Accordingly, even though oxycodone is included in Schedule II under opium and opiates, the State must still prove that it is either opium; a salt, isomer, or salt of an isomer of opium; or a mixture containing opium. Because the State did not present any evidence that oxycodone is actually opium; a salt, isomer, or salt of an isomer of opium; or a mixture containing opium in this case, it did not prove that the appellant committed the offense of trafficking in illegal drugs pursuant to § 13A-12-231(3), Ala.Code 1975. Therefore, we should reverse his conviction and sentence for trafficking in illegal drugs and render a judgment in his favor.

      . Morphine is also a derivative of opium. See Merriam-Webster’s Collegiate Dictionary 808 (11th ed.2003) (defining morphine, in pertinent part, as "the principal alkaloid of opium”). See also Felder v. State, 420 So.2d 851, 851 (Ala.Crim.App.1982) ("Alabama case law recognizes Dilaudid as a derivative of morphine which is a derivative of opium.”).

      . Because the Alabama Department of Public Health's Administrative Code sets forth a definition of opiate, I believe it is inappropriate to rely on outside resources for a definition. However, I note that other resources use various definitions for the term "opiate.” Medici-

        neNet.com defines the term “opiate” as "[a] medication or illegal drug that is either derived from the opium poppy, or that mimics the effect of an opiate (a synthetic opiate).” Answers.com Health defines the term “opiate” as:
      "1. Any of various sedative narcotics containing opium or one or more of its natural or synthetic derivatives.
      “2. A drug, hormone, or other chemical substance having sedative or narcotic effects similar to those containing opium or its derivatives: a natural brain opiate. Also called opioid.

      "3. Something that dulls the senses and induces relaxation or torpor.”


source: Caselaw Access Project

author: SHAW, Judge.

license: Public Domain

text:
    M.H. v. STATE of Alabama.
    CR-06-1626.
    Court of Criminal Appeals of Alabama.
    April 25, 2008.

      Glennon Fletcher Threatt, Jr., Birmingham, for appellant.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, M.H., was convicted of one count of sodomy in the first degree, a violation of § 13A-6-63, Ala.Code 1975, and one count of sexual abuse in the first degree, a violation of § 13A-6-66, Ala. Code 1975. He was sentenced to 30 years’ imprisonment for the sodomy conviction and to 20 years’ imprisonment for the sexual-abuse conviction, the sentences to run concurrently.

The evidence adduced at trial indicated that between January 1, 2001, and September 14, 2005, M.H. was living with his girlfriend, T.F., and her daughter, D.H., who was under 10 years old during that time. D.H. testified that when she was seven years old, M.H. “put his thing in [her] mouth” or “put his snake in [her] mouth” while the two of them were alone in T.F.’s bedroom. (R. 43.) D.H. further stated that, on a subsequent occasion, M.H. also touched “[her] private” in her bedroom. (R. 44.) According to D.H., in addition to the instances of abuse by M.H. that occurred in T.F.’s apartment, M.H. also sexually abused her while they were at the home of M.H.’s sister.

M.H. did not testify in his own defense at trial. He did, however, present character testimony from his sister, R.B., who had the opportunity to observe M.H. interacting with D.H. up to and including the month of July 2005. R.B. described those interactions as a “[flather and daughter relationship.” (R. 114.)

I.

On appeal, M.H. contends that the State’s evidence was insufficient to sustain his convictions. Specifically, M.H. asserts that the “sole evidence” of both sodomy in the first degree and sexual abuse in the first degree “is the uncorroborated testimony of [D.H.].” (M.H.’s brief at p. 23, 25.) He further argues that there was no corroborating physical or medical evidence to support D.H.’s testimony. M.H.’s challenge to the sufficiency of the State’s evidence, however, was not properly preserved for our review.

At the close of the State’s case, M.H.’s counsel moved for a judgment of acquittal, stating:

“[M.H.’s counsel]: Your Honor, on the motion for judgement of acquittal, I understand that the standard is that the evidence is viewed in the light most favorable to the State. Since there was testimony from the alleged victim I’ll rest on the record.”

(R. 107.) At the close of all the evidence, M.H.’s counsel again moved for a judgment of acquittal, stating that “[he] renewed] [his] motion for judgement of acquittal ... based on the record.” (R. 123.) The trial court denied both motions. M.H. did not challenge the sufficiency of the evidence in his postjudgment “Motion for Judgment of Acquittal After Verdict.” (C. 90-91.)

“The sufficiency of the evidence is subject to appellate review only where the defendant challenges the State’s lack of evidence by either a motion to exclude, a motion for judgment of acquittal, or a motion for new trial. Slaughter v. State, 424 So.2d 1365 (Ala.Cr.App.1982); see Johnson v. State, 500 So.2d 69 (Ala.Cr.App.1986). The appellant is bound by the specific objections that he made at trial and cannot raise a new ground on appeal. Bolding v. State, 428 So.2d 187 (Ala.Cr.App.1983).”

Washington v. State, 555 So.2d 347, 348 (Ala.Crim.App.1989). “A general objection that does not specify any grounds generally will preserve nothing for review.” Schaefer v. State, 695 So.2d 656, 659-60 (Ala.Crim.App.1996).

“An appellant must provide specific grounds for his general objections at trial if he intends to appeal that issue. ‘A general objection that does not specify grounds preserves nothing for review.’ Landreth v. State, 600 So.2d 440, 447 (Ala.Cr.App.1992), Thompson v. State, 575 So.2d 1238 (Ala.Cr.App.1991). ‘A defendant is bound on appeal of a criminal prosecution by the grounds stated for the objection at trial,’ Lyde v. State, 605 So.2d 1255, 1258 (Ala.Cr.App.1992). Thus, ‘an objection without specifying a single ground is not sufficient to place the trial court in error for overruling such objection.’ Reeves v. State, 456 So.2d 1156, 1160 (Ala.Cr.App.1984).”

Capps v. State, 630 So.2d 486, 489-90 (Ala.Crim.App.1993). “If no grounds are stated in a motion for a judgment of acquittal, then no issue is preserved for review.” Lewis v. State, 659 So.2d 183, 185 (Ala.Crim.App.1994). Because M.H. stated no specific grounds in support of his motion for a judgment of acquittal in the trial court, this issue was not properly preserved for our review and will not be considered by this Court.

II.

M.H. also argues on appeal that the trial court erred by denying his motion for a mistrial and his postjudgment motion for a judgment of acquittal because, he says, the trial court erred in giving an Allen or “dynamite” charge to the jury after the jury indicated that it was deadlocked.

The record reflects that, after approximately two hours of deliberation, the jury returned to the courtroom. At that time, the following occurred:

“THE COURT: Okay. Ladies and gentlemen, who’s the foreperson? Okay. You are Ms.—
“[P.H.]: [P.H.]
“THE COURT: — for the record? Okay, [P.H.], do you believe that further negotiations might be fruitful? That is, result in a unanimous verdict?
“[P.H.]: This evening?
“THE COURT: No, tomorrow?
“[P.H.]: I think they can work on it.
“THE COURT: Okay. Is that the general [consensus]?
“Juror: No, sir.
“THE COURT: No, it’s not?
“Juror: No.
“THE COURT: Y’all think y’all are hopelessly deadlocked]?
“Some Jurors: Yes, sir.
“THE COURT: You do?
“Some Jurors: Yeah.
“THE COURT: How many think you are hopelessly deadlocked]?
“Juror: I guess, probably we are.
“(Jurors raise hands.)
“THE COURT: Okay. Ten people think you are hopelessly deadlocked]. Okay.
“Let me speak to the lawyers over here for a second.
“(Off-the-record discussion.)
“THE COURT: I just want to know which sides?
“[P.H.]: 8 to 4.
“THE COURT: Is that on both charges?
“[P.H.]: Yes on both charges.
“THE COURT: On both.
“(Off-the-record discussion.)
“THE COURT: Okay, I need to get something on the record, ladies and gentlemen. I need y’all to go back there for one minute.
“(Whereupon, the jury leaves the courtroom and the following is heard with the defendant and all counsel present.)
“THE COURT: We have an 8 to 4 split. Which is almost, you know, almost about as close as you can get to down the middle. And they seem to be real adamant about it, [prosecutor]. And I don’t want to seem like I’m forcing them to deliberate.
“[Prosecutor]: Judge, but we haven’t even given them the Allen charge. Like, I would like for us to at least give them that. You know, just try everything before a mistrial is declared in this case.
“[M.H.’s counsel]: Judge, she is right about that. I mean, out of a sense of fairness they have not been given the Allen charge, but typically what happens is that they are given that before they are asked if they’re hopelessly deadlocked.
“THE COURT: Well, they volunteered to tell me they were hopelessly deadlocked.
“[M.H.’s counsel]: I’m not suggesting that the Court did anything inappropriate.
“THE COURT: I know you’re not. I’m just saying, you know, for the record, they volunteered. They told my bailiff they were hopelessly deadlocked, and asked my bailiff to tell me. And that’s when I got all of you all together -
“[M.H.’s counsel]: I’m moving for a mistrial, Judge, I believe that further deliberations would be coercing.
“[Prosecutor]: Judge and I would ask that we at least give them an Allen charge, let them deliberate a little bit longer.
“THE COURT: ....
“Bring them out, [Bailiff].
“(Whereupon, the jury returns to the courtroom and the following is heard with the defendant and all counsel present.)
“THE COURT: Give this to her. Write in there the numbers for me.
“(Foreperson complies.)
“(Judge reviews document.)
“THE COURT: I really would hope that you all can reach a decision, one way or the other. It’s not a better group of 12 people in this county to decide this case. I mean, how am I going to find 12 better people to reach a verdict? I can’t do it. None of these people want to try this case again. And I really need y’all to search y’all’s hearts, and your minds, and the evidence, to try to reach a verdict in this case. A true verdict. That expresses what happened.
“I need you all to look to one question: whether the State has proved, beyond a reasonable doubt, based on the definition of reasonable doubt that I gave you, the defendant’s guilt. If you are convinced, beyond a reasonable doubt, that is, you have no reasonable doubt of the defendant’s guilt, you should convict him. If you do have a reasonable doubt, in that event you should acquit him.
“But you should — If you say that he is guilty, you should say, I believe that he’s guilty because of this, or this, or this. If you say, that I believe that he’s not guilty, you should say, I believe he’s not guilty because of this doubt, or that doubt.
“You just shouldn’t, you know, be stubborn one way or the other just for the sake of stubborn sense. You need to be able to articulate a reason either way. We don’t want to have to expend the resources of trying this case again, when we have many other cases that could be tried. No one wants that, neither side. We are here only for a search of justice. Bias, sympathy, for one or the other party should not play a role. But I really hate it, but I’m going to have to ask that y’all come back in the morning. Because you all have only deliberated for a couple of hours.
“And I really need y’all to do your best and try to reach a verdict. Listen to other people’s views. I’m not saying change your view just for the sake of changing it or to get a decision. But jury deliberations are by nature a give and take, and exchange of ideas, and a questioning of, you know, of facts, and, you know, that kind of intellectual discussion.
“With one thought in mind, one thought in mind, that the guilty do not escape justice, and that the innocent are not punished unfairly. That’s all we’re concerned about. So please, don’t let anything other than a sense of justice guide your deliberations in this case. Ask yourself, what is believable? What is truthful? And base your verdict on the evidence that you believe. Discard that which is unworthy of belief. Push that over to the side. And try to reach a verdict based upon the evidence in this case.
“Serving on a jury, that’s a privilege, it’s an honor. And you have a deep responsibility, because you are speaking for the community now. And you have to use your education, your training, your life experiences about how things happen. And you have to do the things I talked to you about. Like judging credibility, and deciding whose testimony is worthy of belief and whose is not. Use the wisdom that you have gained in your lives.
“But for goodness sake, don’t let any bad considerations enter into the decision-making process that shouldn’t be there. This is about justice. And only you can decide what is justice in this case.
“And I remain firm that there is no better group of 12 folk in this county to decide this case than you all, because you all are a mixture of this county. And the different areas in this county. And it’s no better way to determine guilt or innocence than to have a cross section from the community here like we do.
“So I’m going to ask that you go home, and you get a good night’s rest, and you come back tomorrow morning, in the spirit of fulfilling your obligation as jurors in this case. And doing the best job that you can to try to reach a verdict in this case.
“Okay.
“Okay, you all are excused. Be back by a quarter till 9 in the morning.
“(Whereupon, the jury is released at 4:50 p.m. on February 8, 2007.)
“(Whereupon, the following is heard with the defendant and all counsel present.)
“THE COURT: That was my best impromptu Allen charge.
“[M.H.’s counsel]: Unfortunately, Judge, I’ve heard more than my share of them. I can say that that was about as expanded and eloquent [an] Allen charge as I’ve heard.
“THE COURT: Thank you.
“[M.H.’s counsel]: But I still stand on my motion for a mistrial.
“THE COURT: Well, you know, [the prosecutor] had a good point. You know, I’ll always try to remain open. You know, and if somebody can convince me, you know, otherwise, I’ll — you know I’ll listen. I’ve changed my mind your way on several occasions.
“So when she said, ‘Judge, they’ve only deliberated a couple hours,’ and I thought about that, and I said, well, she is correct. And if that will get us, you know, letting them deliberate some tomorrow. I mean, this is a Class A felony and it deserves more than a couple hour’s of deliberations and both of y’all have valid points over here and....
“My goal is just to try to do what’s right and, you know, do what I can to help us fairly get a verdict in this case. Because I know nobody wants to try it again needlessly. And then maybe tomorrow I have to grant a mistrial. But let’s make sure that we’ve done everything that we can. To try to get a verdict. One way or the other. And I had them to, you know, let me know what the split was. And it doesn’t seem like it’s that far away from being unanimous.”

(R. 141-50.) Following the trial court’s Allen charge, the jurors were released for the day. Approximately 2 hours and 40 minutes after resuming its deliberations the following morning, the jury returned guilty verdicts as to both charges against M.H.

In Maxwell v. State, 828 So.2d 347 (Ala.Crim.App.2000), this Court discussed the issue of an Allen charge:

“ ‘ “ ‘The general rule in Alabama has been that it is not improper for the trial court to urge upon the jury the duty of attempting to reach an agreement or verdict as long as the judge does not suggest which way the verdict should be returned.’ ” King v. State, 574 So.2d 921, 927-28 (Ala.Cr.App.1990), quoting McMorris v. State, 394 So.2d 392 (Ala.Cr.App.1980), cert. denied, 394 So.2d 404 (Ala.1981), cert. denied, 452 U.S. 972, 101 S.Ct. 3127, 69 L.Ed.2d 983 (1981). An Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), charge, also known as a “dynamite charge,” is permissible if the language of the charge is not coercive or threatening. Grayson v. State, 611 So.2d 422, 425 (Ala.Cr.App.1992); King v. State, 574 So.2d at 928.’
“Gwarjanski v. State, 700 So.2d 357, 360 (Ala.Cr.App.1997). Further, ‘[wjhether an “Allen charge” is coercive must be evaluated in the “whole context” of the case.’ Miller v. State, 645 So.2d 363, 366 (Ala.Cr.App.1994).”

828 So.2d at 365. “ ‘The Supreme Court and this court have held on numerous occasions that the “Allen” or “dynamite charge” is not error unless the language used is threatening or coercive.’ ” Miller v. State, 645 So.2d 363, 366 (Ala.Crim.App.1994), quoting Grayson v. State, 611 So.2d 422, 425 (Ala.Crim.App.1992).

We have reviewed the trial court’s Allen charge, as set out above, in the context of the entire case, and we conclude that neither the giving of the charge nor the language in the charge itself was coercive. Indeed, as noted by M.H.’s counsel at trial, the court’s charge was “expanded and eloquent.” (R. 149.)

We are also unpersuaded by M.H.’s argument that, because the trial court was aware of the deadlocked status of the jury as well as the numerical division of the jury, the Allen charge was inappropriate. Throughout the trial court’s Allen charge and in the court’s interaction with the jury, there was no reference by the court to the numerical division of the jury vote and no implication by the court, through words or conduct, that the court expected the jury to return a verdict, much less a certain verdict. See, e.g., Channell v. State, 477 So.2d 522, 531 (Ala.Crim.App.1985). Therefore, we find no error in the trial court’s giving the Allen charge or in the trial court’s denying M.H.’s motion for a mistrial on this ground.

III.

Although not argued by M.H. or the State, we find that M.H.’s 20-year sentence for his conviction for first-degree sexual abuse is illegal. “Matters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).

At the time of the crimes in this case, § 13A-6-66, Ala.Code 1975, provided, in pertinent part:

“(a) A person commits the crime of sexual abuse in the first degree if:
“(3) He, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.
“(b) Sexual abuse in the first degree is a Class C felony.”

Effective July 1, 2006, § 13A-6-66 was amended to remove subsection (a)(3), the subsection under which M.H. was convicted. See Act No. 2006-575, Ala. Acts 2006. Section 13A-6-69.1, Ala.Code 1975, was enacted by the same act and contains comparable language to the language previously in § 13A-6-66(a)(3); § 13A-6-69.1(b), Ala.Code 1975, makes the sexual abuse of a child under 12 years old a Class B felony.

“It is well settled that the law in effect at the time of the commission of the offense controls the prosecution.” Minnifield v. State, 941 So.2d 1000, 1001 (Ala.Crim.App.2005). See also Davis v. State, 571 So.2d 1287, 1289 (Ala.Crim.App.1990) (“A defendant’s sentence is determined by the law in effect at the time of the commission of the offense.”); Hardy v. State, 570 So.2d 871 (Ala.Crim.App.1990) (unless otherwise stated in the statute, the law in effect at the time the offense was committed controls the offense); and Jefferson v. City of Birmingham, 399 So.2d 932 (Ala.Crim.App.1981) (law in effect at the time of the offense governs prosecution). “ ‘As a general rule, a criminal offender must be sentenced pursuant to the statute in effect at the time of the commission of the offense, at least in the absence of an expression of intent by the legislature to make the new statute applicable to previously committed crimes.’ ” Zimmerman v. State, 838 So.2d 404, 406 n. 1 (Ala.Crim.App.2001), quoting 24 C.J.S. Criminal Law § 1462 (1989). As this Court explained in White v. State, 992 So.2d 783 (Ala.Crim.App.2007):

“It is well settled that ‘[ujnless the statute contains a clear expression to the contrary, the law in effect at the time of the commission of the offense “govern[s] the offense, the offender, and all proceedings incident thereto.” ’ Hardy v. State, 570 So.2d 871, 872 (Ala.Crim.App.1990), quoting Bracewell v. State, 401 So.2d 123, 124 (Ala.1979). ‘In Alabama, retrospective application of a statute is generally not favored, absent an express statutory provision or clear legislative intent that the enactment apply retroactively as well as prospectively.’ Jones v. Casey, 445 So.2d 873, 875 (Ala.1983).”

992 So.2d at 785. We have reviewed Act No. 2006-575, Ala. Acts 2006, and § 13A-6-69.1, Ala.Code 1975, and there is no express statement that § 13A-6-69.1 apply retroactively, nor can we find any indication that the legislature intended that § 13A-6-69.1 apply retroactively. Therefore, § 13A-6-69.1 applies only to those crimes that occurred after July 1, 2006, its effective date.

Because § 13A-6-69.1 does not apply to crimes that occurred before July 1, 2006, it does not apply to M.H., who committed the sexual abuse between 2001 and 2005. Rather, § 13A-6-66 applies to M.H.’s sexual-abuse conviction, making his conviction a Class C felony. Section 13A-5-6(a)(3), Ala.Code 1975, provides that a person convicted of a Class C felony shall be punished by “not more than 10 years or less than 1 year and 1 day.” M.H.’s 20-year sentence for his sexual-abuse conviction exceeded the maximum authorized by law and was, thus, illegal.

Based on the foregoing, we affirm M.H.’s convictions for sodomy in the first degree and sexual abuse in the first degree and his 30-year sentence for the sodomy conviction. However, we remand this case to the trial court for it to conduct a new sentencing hearing and to resentence M.H. for the first-degree-sexual-abuse conviction in accordance with this opinion. Due return shall be filed with this Court within 42 days of the date of this opinion and shall include a transcript of the sentencing hearing conducted on remand as well as the trial court’s amended sentencing order.

AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING.

BASCHAB, P.J., and McMILLAN, WISE, and WELCH, JJ., concur.

      . M.H. was also indicted for rape in the first degree, a violation of § 13A-6-61, Ala.Code 1975, by means of a separate indictment (case no. CC-06-2264); however, in a previous trial, which resulted in a mistrial as to the sexual-abuse and sodomy charges, M.H. was acquitted of the rape charge.

      . In that motion, M.H. raised only a single issue regarding the jury’s initial indication during deliberations that it was deadlocked and the trial court's subsequent actions in that regard. See Part II of this opinion.

      . Moreover, to the extent that M.H.’s argument on appeal could be construed to be a challenge to the weight of the evidence, rather than its sufficiency, M.H. also failed to properly preserve that issue by including it in his postjudgment motion. See Zumbado v. State, 615 So.2d 1223, 1241 (Ala.Crim.App.1993) ("The issue of the weight of the evidence is preserved by a motion for a new trial, stating ‘that the verdict is contrary to law or the weight of the evidence.’ See A.R.Cr.P. 24.1(c)(1).”).

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . There is no indication in the record that M.H. was sentenced under the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975.


author: ROTHENBERG, J.

text:
    Lathio JENKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-353.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2008.
    Order Discharging Rule to Show Cause March 11, 2009.

      Lathio Jenkins, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, Miami, for appellee.
    Before RAMIREZ, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Lathio Jenkins (“Jenkins”) appeals from an order issued by the trial court denying his Emergency Petition for Writ of Habeas Corpus and a motion to dismiss the information wherein Jenkins alleges he was improperly tried and convicted of armed robbery based upon an unsworn information. We affirm because habeas corpus is an improper remedy to address the issue raised, the claim asserted could have been raised on direct appeal or in a motion for postconviction relief, and the claim is without merit.

Jenkins was convicted after a jury trial in December of 1993. This Court affirmed the conviction and sentence in 1994. Jenkins v. State, 641 So.2d 1352 (Fla. 3d DCA 1994). Jenkins has filed at least nine motions seeking postconviction relief which were denied by the trial court and either affirmed or dismissed by this Court on appeal. Jenkins v. State, 981 So.2d 1211 (Fla. 3d DCA 2008); Jenkins v. State, 946 So.2d 1076 (Fla. 3d DCA 2007); Jenkins v. State, 907 So.2d 537 (Fla. 3d DCA 2005); Jenkins v. State, 901 So.2d 373 (Fla. 3d DCA 2005); Jenkins v. State, 864 So.2d 421 (Fla. 3d DCA 2004); Jenkins v. State, 821 So.2d 1075 (Fla. 3d DCA 2002); Jenkins v. State, 761 So.2d 1117 (Fla. 3d DCA 2000); Jenkins v. State, 751 So.2d 583 (Fla. 3d DCA 2000); Jenkins v. Singletary, 717 So.2d 1024 (Fla. 3d DCA 1998).

In November 2007, Jenkins filed an Emergency Petition for Writ of Habeas Corpus, and in January 2008, he filed a motion to dismiss the information. The petition and motion both alleged that al-though the information charging Jenkins ^h armed robbery was signed by an Assistant State Attorney and a deputy clerk of the court, because the information did not contain an official notary seal, it was defective.

We begin with Jenkins’ choice of remedies. Habeas Corpus and a motion to dismiss the information, filed thirteen years after Jenkins’ conviction and sentence became final on appeal, are improper avenues to address the issue raised. This issue must be raised on direct appeal or in a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Jenkins had two years from the time his case became final in 1994 to seek postconviction relief under rule 3.850. Habeas corpus may not be relied upon to circumvent this time limitation. See Baker v. State, 878 So.2d 1236 (Fla.2004); Slater v. State, 951 So.2d 99 (Fla. 3d DCA 2007). Thus, we conclude that the instant claim was improperly brought and is untimely.

In addition to the impropriety of the remedies sought by Jenkins and the untimeliness of his claim, is the fact that by proceeding to trial under the information, Jenkins waived any objection to it. See Fla. R.Crim. P. 3.140(g) (specifying that any alleged defect as to a signature or oath in an information must be asserted prior to a determination of the case on the merits).

A review of the information additionally reveals that the claim asserted by Jenkins is without merit. There is no requirement under Florida law that the information contain a seal by a notary. Section 92.50(1), Florida Statutes (1992), provides that the oath may be administered by a deputy clerk of any court of record within this state or a notary public within this state. Because the information was signed by an Assistant State Attorney and the oath was administered by a deputy clerk of the court, the information was not defective.

“We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Hepburn v. State, 934 So.2d 515, 517 (Fla. 3d DCA 2005); Johnson v. State, 915 So.2d 682, 684 (Fla. 3d DCA 2005). There is, however, no constitutional right to file a frivolous lawsuit. Hepburn, 934 So.2d at 517-18; see also Lewis v. Casey, 518 U.S. 343, 353 n. 3, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“Depriving someone of a frivolous claim ... deprives him of nothing at all, except perhaps the punishment of ... sanctions.”). As this Court stated in Lanier v. State, 983 So.2d 658, 660 (Fla. 3d DCA 2008), Hicks v. State, 974 So.2d 1116, 1118 (Fla. 3d DCA 2008), and Minor v. State, 963 So.2d 797, 799 (Fla. 3d DCA 2007), “there comes a point where enough is enough.” Based upon careful review of Jenkins’ filings in this Court, we believe he has reached that point. We, therefore, issue the following show cause order directing Jenkins to demonstrate, if he can, good cause why he should not be precluded from filing further pro se appeals with this Court in this case.

Order affirmed; rule to show cause issued.

ROTHENBERG, J.

On November 5, 2008, this Court affirmed the trial court’s order denying the defendant’s Emergency Petition for Writ of Habeas Corpus and a motion to dismiss the information under which he was tried and convicted in December 1993. In the opinion issued by this Court, we additionally ordered the defendant to show good cause why he should not be precluded from filing further pro se appeals in the instant case. Upon review of the defendant’s response, we discharge the rule to show cause but caution the defendant to refrain from filing meritless and/or consecutive appeals in this 1993 case.

Rule to show cause discharged.


author: PER CURIAM.

text:
    Tamilia FAIR, Personal Representative, etc., Appellants, v. Wilkishia D. REESE, Budget Rent, etc., et al., Appellees.
    No. 5D08-1872.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2009.
    Opinion Granting Certification March 27, 2009.
    Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Allan L. Ziffra of Rue & Ziffra, P.A., Port Orange, for Appellants.
    Philip Glatzer of Marlow, Connell, Abrams, Adler, Newman & Lewis, Coral Gables, for Appellees.
   PER CURIAM.

AFFIRMED. See Karling v. Budget Rent A Car System, Inc., 2 So.3d 354 (Fla. 5th DCA 2008).

SAWAYA, ORFINGER and LAWSON, JJ., concur.

ON MOTION TO CERTIFY

PER CURIAM.

We grant Appellants’ motion to cei’tify to the Florida Supreme Court the following question as one of great public importance: DOES THE GRAVES AMENDMENT, 49 U.S.C. § 30106, PREEMPT SECTION 324.021(9)(B)(2), FLORIDA STATUTES (2007)? This is the same question certified by this court in Karling v. Budget Rent A Car System, 2 So.3d 354 (Fla. 5th DCA 2008) and Francis v. Dollar Rent A Car Systems Inc., 2 So.3d 356 (Fla. 5th DCA 2009); by the Second District Court of Appeal in West v. Enterpise Leasing Co., 997 So.2d 1196 (Fla. 2d DCA 2008); and by the Fourth District in Tocha v. Richardson, 995 So.2d 1100 (Fla. 4th DCA 2008) and Vargas v. Enterprise Leasing Co., 993 So.2d 614 (Fla. 4th DCA 2008).

QUESTION CERTIFIED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.


text:
    Richard Calvin JONES, II, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2971.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2009.
    Rehearing Denied April 3, 2009.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

See Jones v. State, 881 So.2d 584 (Fla. 3d DCA 2004).

AFFIRMED.

PALMER, C.J., TORPY and EVANDER, JJ., concur.


text:
    Jose SALAZAR, Appellant, v. WATSON LABORATORIES and AIG, Appellees.
    No. 1D08-5884.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2009.

      Richard E. Zaldivar and Albert Marro-quin of Richard E. Zaldivar, P.A., Miami, for Appellant.
    James C. Price and Victor T. Armstrong of Law Office of James J. Gallagher, Ft. Lauderdale, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s December 19, 2008, order to show cause, Appellees’ Motion to Dismiss, filed December 15, 2008 is GRANTED. Appellant’s appeal is DISMISSED for lack of jurisdiction. See Wometco Enters, v. Cordoves, 650 So.2d 1117 (Fla. 1st DCA 1995).

DAVIS, BENTON, and BROWNING, JJ., concur.


text:
    Mark Theodore HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3827.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2009.
    Rehearing Denied April 3, 2009.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Tindall v. State, 997 So.2d 1260 (Fla. 5th DCA 2009).

SAWAYA, TORPY and EVANDER, JJ., concur.


text:
    Ray Steven JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0486.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2009.
    Ray Steven Jones, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, THOMAS, and CLARK, JJ., concur.


text:
    Joseph C. TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0480.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2009.
    Joseph C. Taylor, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(A); 9.141(c)(5)(C).

BARFIELD, THOMAS, and CLARK, JJ., concur.


text:
    Carl L. GATES, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-0149.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2009.
    Carl L. Gates, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

BARFIELD, THOMAS, and CLARK, JJ., concur.


text:
    Jeremy ELLIS, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-0081.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2009.
    Jeremy Ellis, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005).

BARFIELD, THOMAS, and CLARK, JJ., concur.


text:
    Stanley N. TAVORN, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D09-0056.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2009.
    Stanley N. Tavorn, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Pettway v. State, 776 So.2d 930 (Fla.2000).

BARFIELD, THOMAS, and CLARK, JJ., concur.


text:
    Julia Jane BALKOM, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5308.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2009.
    Nancy Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Lewis v. State, 953 So.2d 658 (Fla. 1st DCA 2007).

BARFIELD, THOMAS, and CLARK, JJ., concur.


author: SILBERMAN, Judge.

text:
    Steven MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-9.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2009.
    Rehearing Denied April 15, 2009.
   SILBERMAN, Judge.

Steven Mills appeals the dismissal, as moot, of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He contends that he did not receive the proper credit for time served in circuit court case number CRC93-01091CFANO-K (the 1993 case). We affirm the postconviction court’s dismissal of Mills’ motion.

Mills’ rule 3.800(a) motion asserts that he twice violated his community control in the 1993 case and was ultimately sentenced upon revocation of community control to four years in prison with jail credit for 185 days. He delineates specific amounts of time that he sei'ved in jail and on community control and claims that he should be awarded an additional 75 days as credit for time served in jail and an additional 255 days for time served on community control. The postconviction court dismissed the motion as moot because the attachment to the court’s order reflects that Mills was released from prison on the 1993 case on April 1, 1996. The attachment also reflects that Mills is currently in the custody of the Department of Corrections serving a thirty-year sentence on a 2001 case. Nothing indicates that any relief Mills seeks would have any impact on his current sentence.

Mills contends that the postconviction court erred in dismissing his motion as moot, citing Tucker v. State, 679 So.2d 1261 (Fla. 2d DCA 1996). In Tucker, this court reversed the denial of a rule 3.800(a) motion because the postconviction court did not consider the merits of the claim for credit for time previously served. Id. at 1262. The postconviction court in Tucker determined that the issue was moot because Tucker had completed his sentences on the cases at issue. On appeal, this court concluded, “Although Tucker is no longer in custody for the cases under review, he is in custody on other charges and is entitled to have the court records accurately reflect the total time he served in prison for the two cases in question.” Id. The facts in Tucker are not entirely clear as to the timing of Tucker’s offenses and whether there could have been any impact on his subsequent case.

We can envision a situation where credit on a completed sentence would affect a subsequent sentence. For example, if sentences are served consecutively, the amount of credit for time served on the first sentence will affect when the second sentence begins. However, in the present case, Mills was released from prison on the 1993 offense, and years later he committed another offense. He is currently serving a thirty-year sentence on the subsequent offense. The use of limited court resources to address a claimed credit for time served as to Mills’ completed sentence would appear to achieve no purpose. Therefore, we affirm the postconviction court’s order dismissing Mills’ rule 3.800(a) motion as moot.

Affirmed.

KELLY and WALLACE, JJ., Concur.


text:
    R.S., Appellant, v. S.L.A., Appellee.
    Nos. 1D08-1833, 1D08-2474.
    District Court of Appeal of Florida, First District.
    March 4, 2009.
    Rehearing Denied April 14, 2009.
    Carlton Pierce of Carlton Pierce, P.A., Orlando, for Appellant.
    Kelly R. McNeal of Jack M. Ross, P.A., Gainesville, for Appellee.
   PER CURIAM.

Having carefully considered the parties’ arguments and reviewed the record, we affirm as to all issues raised except one. As appellee correctly concedes, the trial court made a mathematical error in its calculation of appellant’s child support obligation. The correct calculation results in a child support obligation for appellant of $353.42 per month, and an outstanding retroactive obligation of $826.84. On remand, we direct the trial court to enter an amended order correcting those two figures. In all other respects, we affirm.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, BROWNING, and LEWIS, JJ., concur.


text:
    Justin FOUST, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2931.
    District Court of Appeal of Florida, First District.
    March 4, 2009.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Christine A. Guard, Giselle Lylen and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. C.E.C. v. State, 884 So.2d 421 (Fla. 1st DCA 2004); Kilmartin v. State, 848 So.2d 1222 (Fla. 1st DCA 2003).

DAVIS, BENTON, and PADOVANO, JJ., concur.


text:
    Bobby F. BOWERS, Jr., Appellant, v. STATE, DEPARTMENT OF REVENUE on behalf of Teresa L. MORGAN, Appellee.
    No. 1D07-6489.
    District Court of Appeal of Florida, First District.
    March 5, 2009.

      Bobby F. Bowers, Jr., pro se, Appellant.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Bobby F. Bowers, Jr., appeals a final administrative child support order which establishes his current as well as his retroactive child support obligation. Bowers argues that the actual amount of child support already paid by him was not disclosed below. Bowers has not demonstrated, however, that he timely sought to introduce such specific evidence into the record below. Bowers further argues that, because his financial condition has changed since entry of the support order, the amount of child support ordered should be “reevaluated.” As a court of review, this court is precluded from considering matters outside of the record of the proceedings below. Thomber v. City of Fort Walton Beach, 534 So.2d 754, 755 (Fla. 1st DCA 1988). Because Bowers has not established any basis for reversible error on the record, the order is affirmed. See Hillsborough County Bd. v. Pub. Employees Relations Comm’n, 424 So.2d 132 (Fla. 1st DCA 1982) (explaining that an appeal is not an evidentiary proceeding, so an appellate court will not consider evidence not presented to the lower tribunal because function of appellate court is to determine whether lower tribunal committed error based upon the issues and evidence before it).

AFFIRMED.

WEBSTER, VAN NORTWICK and THOMAS, JJ., concur.


author: ORFINGER, J.

text:
    Humberto MAIRENA, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1366.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Humberto Mairena appeals his conviction of sexual battery on a child less than 12 years of age. He contends that the trial court erred by conducting his trial when the court was presented with reasonable grounds to question his competency. We reverse Mairena’s conviction and remand for a new trial contingent upon a determination that Mairena is competent to proceed.

Mairena was charged with capital sexual battery. Early in the proceedings, defense counsel moved for appointment of an expert to determine Mairena’s competence, alleging:

2. The Defendant has a history of mental illness and has undergone psychiatric treatment for same in South Florida. Due to the serious nature of the charge and the Defendant’s limited ability to communicate with counsel regarding the extent of his mental disabilities, undersigned counsel requests a competency evaluation to determine if the Defendant’s current mental condition is adequate to proceed with this case.
3. Undersigned counsel certifies that this motion is made in good faith and that counsel has reasonable grounds to believe that the Defendant presently suffers from mental disabilities that cause him to be incompetent to proceed with this case.

The trial court ordered a competency evaluation and appointed a single mental health expert. After the evaluation was performed, the trial court entered an order, finding Mairena competent to stand trial.

Five months later, Mairena came before the court at a scheduled hearing. At that time, the State offered Mairena a plea to a lesser charge. Mairena indicated that he would accept the State’s offer and the court proceeded with a plea colloquy. When the court asked Mairena how he wished to plead, the following exchange occurred:

THE COURT: ... What is your plea?
MAIRENA: At that time I had treatment, psychiatric treatment.
THE COURT: I’m sorry? He had what?
MAIRENA: Psychiatric treatment. I was in clinic in Miami for thirty days because I had problem after my divorce and I couldn’t sleep and I could hear voices in my head. Yes. And also I was taking medication. I was taking medication.
THE COURT: Well, the plea has to be either guilty or not guilty.
MAIRENA: It’s between guilty or not guilty?
[DEFENSE COUNSEL]: Yes, one or the other.
THE COURT: To enter a plea to resolve the case it has to be guilty. If you want a trial, your plea would be not guilty. Are you claiming to have no recollection of the facts or are you just stating matters in mitigation of sentence?
MAIRENA: Yes. Yes, I do.
THE COURT: Yes what?
MAIRENA: Yes, at that time I had voices in my mind. I don’t -know. I had voices in my head that was telling me to do. I don’t know if I — if I — if I thought that I did it.
THE COURT: Well, we need to proceed with the child hearsay hearing so that we’ll be ready for trial next week.
[DEFENSE COUNSEL]: As you recall, Judge, he was evaluated on just this issue.
THE COURT: He was evaluated and the doctor said he was competent to proceed?
[DEFENSE COUNSEL]: He was.
THE COURT: I don’t know if he’s attempting to raise an insanity defense or if counsel could in good faith assert an insanity defense. I want to make sure he understands that he’s losing the State’s offer. And when he goes to trial if he’s convicted, the Court will have no alternative but to sentence him to life in the State Penitentiary without possibility of parole.
THE COURT: Well, I couldn’t take the plea because he wouldn’t give me an answer one way or the other.

The trial began two months later before a different judge. Just prior to jury selection, the following occurred:

[DEFENSE COUNSEL]: ... Judge, Mr. Mairena has been explained the ramifications of a plea or a trial, possible outcome, strengths and weaknesses of his trial, we’ve had him evaluated for competency and he has come back competent.
He has indicated to me that he wanted me to pursue an insanity defense, however, his actions around the time of the incident one hundred percent preclude such a defense as far as my investigation [has] determined and through my experience I’ve learned that.
I just asked him a few moments ago if he understood that the little girl could testify here today ... and I don’t believe he wants her to have to take the stand.
He’s indicated to me that he’d like to enter a plea to the Court. He understands that the sentence would be the same whether he went to trial and was found guilty as charged or if he pled to the Court because the sentence is life without parole.
I wanted him to address the Court before you proceed in that grain.
THE COURT: Yes, okay, okay.
[DEFENSE COUNSEL]: Mr. Maire-na, is it your wish to enter a plea to the Court?
THE DEFENDANT: What I want to say if it’s reasonable to give me the sentence today. I have been 27 days in the cell, in the bubble, because they put me there.
It’s like this for my doctor — the doctor give me medication. I don’t know. Since 2005[,] I have a grave severe depression, and I was put in a clinic for mental disabilities. And since then I’ve been taking my medication.
[DEFENSE COUNSEL]: Are you taking your medication today sir?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Are you thinking clearly?
THE DEFENDANT: I know that I have in my head — it’s a scream that I’m crazy. I hear voices and sounds. I’m bad. My brain is hurting me.
[DEFENSE COUNSEL]: Do you know what you’ve been diagnosed with sir?
THE DEFENDANT: I don’t know. I didn’t see the doctor since I got in but, still right now I’m still in the bubble.
THE COURT: All right. We understand what your fears are and how you feel, but we’ll either have to go to trial today or you can plea[d] guilty.
If you plead guilty then we have to make sure that you’re feeling well today and that you know what’s going on. So, if you have a headache or if you have some voices in your head it would be difficult or impossible for me to accept your plea of guilty. Do you understand?
THE DEFENDANT: Yes. I’m not in a condition to — practically I was drugged all night with the medication.
THE COURT: Then it would seem that we would possibly have to just go to trial and you can pay attention as well as you can.
THE DEFENDANT: Yes.

The trial proceeded without any further discussion about a plea and Mairena was convicted of capital sexual battery.

At a sentencing hearing held two days later, Mairena told the court that he had remained silent throughout the trial because he had been under the influence of medication:

THE DEFENDANT: You know that, yes. On Tuesday’s and Wednesday’s I didn’t say one word. I was under the influence of medication. In '88[,] I entered this country with a political asylum.
You remember the Iran Contra and Ronald Reagan, the ex-president didn’t give money to us to fight communism, to contrast communists. And I have a card from Focolaro (sic), who’s the president and I have a permanent license.
The question who gave me the license is an American, a Cuban American, and I have rights to stay in this country. On Wednesday and Wednesday^] they show me the video and nobody let me say one word because I was drugged and I couldn’t speak because my mouth was sticky until today.
Until today[,] I have a reaction of those pills that I took on Monday. I want rescues this country because our commander in chief Bush I have — I need to repeat my admiration for him fighting those terrorists on the other side.

He then recited his history of mental illness:

[THE DEFENDANT]: ... Look, I’m going to say something fast. When I went to Miami the woman whom I loved vanished to Nicaragua and then to Spain, you understand, my Terry, Therese.
I had an accident and I didn’t have any money. I had to go in the street. Six or eight months I lived in the street with booze and eight times — you know that.
Every time that somebody is drunk there are ten thousand new rolls that die. The lady of the State — excuse me.
I am an engineer in (inaudible) and specialist in plants, but the work is so technical, and I also take care of animals. Excuse me.
I talk to[o] fast. When I was in street a lady, Isabelle[,] ask me why are you crazy with the voices in your head, and she gave me some money because she had a lot of money. I worked from 8 to 14 hours. I had a lot of money in my work. Yes.
Never did I use my money to b[u]y drugs or I never accepted a check from the government. On the 4th of April 1988 and every 4th of April I celebrate and 20 times — I was in 20 months in this jail here for something that I didn’t do. Yes.
We are going to today — I was working that day. I was recuperating because I went to first clinic, to the clinic in Miami. Miami Behavior in Miami Clinic with a psychologist and a psychiatrist.
They gave me medication those who took care of me. Yes. They sent me to another institution for four days and I stayed there for four months — two months, and then I went to the street with my cousin to recuperate.
And when I finished recuperating I started working. I’m still hurt — after I — worked in the asbestos, I was removing asbestos, mold. I was in demolition because us Hispanics who come here to work we don’t get much from the government.
THE COURT: All right. All right, the law requires me to give you one sentence and one sentence only, and I hope you understand that. I wish I could show you more mercy, but the law will not allow me.
I know that you will appeal this case . and I hope that appeal goes well for you, and if you win the appealf,] perhaps[,] another jury may see the case your way.
I really appreciate your courtesy that you have shown to the Court in the few days that I have known you.
THE DEFENDANT: Yes. I was drugged.

The court then sentenced Mairena to the statutorily mandated life prison term. This appeal followed.

Mairena contends that the trial court abused its discretion by allowing him to proceed to trial when reasonable grounds existed to believe that he was incompetent to proceed to trial. The State responds, arguing that the record does not suggest that Mairena was incompetent to proceed.

To hold criminal proceedings against a mentally incompetent defendant denies that defendant his constitutional right to a fair trial. Maxwell v. State, 974 So.2d 505, 509 (Fla. 5th DCA 2008); Molina v. State, 946 So.2d 1103, 1106 (Fla. 5th DCA 2006) (recognizing that defendant has due process right to determination of competency to proceed to trial whenever it appears reasonably necessary). In determining competency, the test is whether the defendant has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.” Hill v. State, 473 So.2d 1253, 1257 (Fla.1985) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)) (emphasis omitted). If defense counsel, the state, or the trial court has reasonable grounds to suggest that a defendant is not mentally competent to proceed, the court must conduct a competency hearing. Fla. R.Crim. P. 3.210(b). In addition to applying the Hill standard, case law requires “trial court[s][to] consider all the circumstances,” Calloway v. State, 651 So.2d 752, 754 (Fla. 1st DCA 1995), keeping in mind that “[t]here are no ‘fixed or immutable signs that always’ require a competency hearing.” Id. (quoting Scott v. State, 420 So.2d 595, 597 (Fla.1982)).

Once the issue of a defendant’s competency is raised, the question for the trial court to consider is “whether there is a reasonable ground to believe the defendant may be incompetent, not whether he is incompetent.” Tingle v. State, 536 So.2d 202, 203 (Fla.1988) (quoting Scott, 420 So.2d at 597). “If the trial court is presented with reasonable grounds to believe that the defendant may not have the sufficient present ability to consult with his attorney and aid in the preparation and presentation of his defense, the trial court must order a hearing and examination.” Brockman v. State, 852 So.2d 330, 333 (Fla. 2d DCA 2003); see Carrion v. State, 859 So.2d 563, 565 (Fla. 5th DCA 2003) (“If the trial judge has reasonable grounds to believe that a criminal defendant is not competent to proceed, then the court must conduct a competency hearing.”); see also Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Dusky, 362 U.S. 402, 80 S.Ct. 788.

Even if a defendant has been determined to be competent, the trial court must remain receptive to revisiting the issue if circumstances change. Hunter v. State, 660 So.2d 244, 248 (Fla.1995); Maxwell, 974 So.2d at 510. “[A] prior determination of competency does not control when new evidence suggests the defendant is at the current time incompetent.” Nowitzke v. State, 572 So.2d 1346, 1349 (Fla.1990). This is a continuing obligation, which may require the trial court to revisit the issue after a defendant has been declared competent to proceed. Molina, 946 So.2d at 1106 (citing Nowitzke, 572 So.2d 1346; Culbreath v. State, 903 So.2d 338 (Fla. 2d DCA 2005)). A trial court’s failure to do so constitutes an abuse of discretion. Id,.; see Burns v. State, 884 So.2d 1010, 1013-14 (Fla. 4th DCA 2004).

In this case, there were concerns early on about Mairena’s competency. As a result, the defense requested the court to appoint an expert to evaluate Mairena. Based on the evaluation of the appointed expert, the court determined that Mairena was competent to proceed. However, seven months later, when Mairena said that he wanted to enter an open plea to the court to a mandatory life sentence, he reported that he “hears voices and sounds. I’m bad. My brain is hurting me.” He further said “in my head' — it’s a scream that I’m crazy.” The court told Mairena that “if you have some voices in your head it would be difficult or impossible for [the court] to accept a plea of guilty.” But then, after expressing reservations about Mairena’s ability to enter a voluntary, intelligent plea, the court allowed the trial to proceed. This was error. If the defendant was not competent to enter a plea due to concerns about his mental status, he was not competent to stand trial.

The record demonstrates that the trial court was presented with reasonable grounds to question Mairena’s mental competency despite the earlier determination that he was competent to proceed. See, e.g., Maxwell, 974 So.2d 505 (holding that trial court was presented with reasonable grounds to question defendant’s mental competence to be sentenced, and, thus, was required by rule to have defendant evaluated by at least one more expert and to hold competency hearing). Because a hearing to determine whether a criminal defendant was competent at the time of trial cannot be held retroactively, see, e.g., Tingle, 536 So.2d at 204; Scott, 420 So.2d at 598; Hill, 473 So.2d at 1259, we must reverse Mairena’s conviction and remand for a new trial contingent upon a determination that Mairena is competent to proceed.

REVERSED and REMANDED.

SAWAYA and LAWSON, JJ., concur.

      . While Mairena is correct that rale 3.210 requires the appointment of two or more experts, it is equally clear that it was Mairena who requested the single expert. As the failure to appoint a second expert to examine a defendant's mental competency to stand trial is not fundamental error, see D’Oleo-Valdez v. State, 531 So.2d 1347, 1348 (Fla.1988), and the error was invited by Mairena, he has not demonstrated that the trial court erred in failing to appoint at least two experts to evaluate him. See Green v. State, 598 So.2d 313, 313-14 (Fla. 2d DCA 1992) (holding that defendant acquiesced in appointment of single competency expert where, rather than object to appointment of only one expert, defense counsel informed trial judge that counsel had report from single appointed expert indicating that defendant was competent).


text:
    Silas KENDRICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0512.
    District Court of Appeal of Florida, First District.
    March 6, 2009.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse Appellant’s sentence and remand for the trial court to strike the Appellant’s habitual felony offender designation. We affirm the appellant’s conviction without further discussion.

Appellant entered a guilty plea to one count of conspiracy to traffic in cocaine. The state recommended a sentence of zero to ten years of imprisonment; the trial court accepted Appellant’s plea and postponed sentencing while Appellant provided substantial assistance to law enforcement. Appellant was subsequently charged with six new law violations and was ultimately adjudicated guilty and sentenced as a habitual felony offender to twenty-five years of imprisonment for the conspiracy charge.

Because Appellant was not given written notice of the state’s intent to habitualize him before he entered his plea, the appellant’s habitual offender designation is improper. See Ashley v. State, 614 So.2d 486 (Fla.1993).

We, therefore, reverse Appellant’s sentence and remand to the trial court to strike Appellant’s habitual offender designation.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.


text:
    Chantal Marie Therese KARAM, Petitioner, v. Jean-Jacques Joseph KARAM, Respondent.
    No. 3D08-2134.
    District Court of Appeal of Florida, Third District.
    March 11, 2009.

      Hermelee & Geffin, Bruce G. Hermelee, Alan G. Geffin, and Christopher Perez-Gurri, Fort Lauderdale, for petitioner.
    Rudolph & Associates, Howard M. Rudolph, and B. Niklas Brihammar, West Palm Beach, for respondent.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Chantal Marie Therese Karam (“the Wife”) petitions this Court for a writ of certiorari, seeking to quash the trial court’s order granting Jean-Jacques Joseph Karam’s (“the Husband”) verified motion to dismiss the custody portion of the Wife’s petition for dissolution of marriage. We grant the petition.

The parties were married in 1986 in the French Republic of Guadeloupe. The parties have three children, two of whom are still minors. The parties and children are French nationals, and they lived in Guadeloupe until 2005. In early 2005, the parties and their children entered the United States via a term-limited investor’s visa issued to the Husband, with the children and Wife listed as the Husband’s dependents. The Husband created a Florida corporation and opened a retail store in Miami, and the parties purchased a $1.2 million home in Pinecrest, obtained insurance for their Pinecrest home and cars, and obtained Florida driver’s licenses. Additionally, the Wife obtained a United States social security card, obtained health insurance for the children, the children started school in Miami, and the parties placed their home in Guadeloupe for sale. Although residing in Miami since 2005, the parties and children have spent holidays and summers in France, and they have continuously maintained a residence, bank accounts, vehicles, and numerous businesses in Guadeloupe, including the Wife’s clothing store in Guadeloupe which she continued to manage. In 2007, the Husband opened a second retail store in Miami, signing a five-year lease.

On August 14, 2007, the Husband filed a petition for divorce in Guadeloupe. The Wife, who was not served with a copy of the Husband’s petition and was unaware that one had been filed in Guadeloupe, filed a petition for dissolution of marriage in Miami-Dade County on September 5, 2007. Both petitions raise issues relating to the custody of the children. In the Wife’s petition, she asserts that she has been a resident of Miami-Dade County for more than six months prior to the filing of her petition, the children reside with her in Miami-Dade County and attend school in Miami-Dade County, and during the summers, the children reside with her in Guadeloupe.

In November 2007, the Husband filed a verified motion to dismiss the child custody portion of the Wife’s petition for dissolution of marriage, challenging the Florida trial court’s jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), sections 61.501-.542, Florida Statutes (2007). The Husband claimed that the French trial court had priority, and that the French court would be conducting a temporary relief hearing on December 6, 2007. The motion further asserted that the children’s primary residence was in Guadeloupe; any commercial activity in the United States was merely an extension of a business he maintained in France; the Husband was winding down his commercial activity in the United States; and the parties’ stay in Miami was temporary to allow the children to attend school in the United States and learn English.

On December 6, 2007, before the trial court in Miami had an opportunity to rule on the Husband’s motion to dismiss and determine jurisdiction under the UC-CJEA, the French trial court conducted a temporary relief hearing. Although the Wife was served with notice of the French court proceeding, she failed to appear. Thereafter, on December 14, 2007, the French trial court entered an order finding that the “children’s residence is determined to be the father’s residence,” and ordered that the children return to Guadeloupe to reside with the Husband. The French court’s conclusion was based upon its finding that the “usual and permanent centre of [the children’s] interest” was and had always been in France, their stay in Florida (for over two years with them mother) was “purely a linguistic and cultural enrichment,” and that the petition was filed in the French court before one was filed by the Wife in the “American” court.

The Wife filed two separate appeals from the French trial court’s order. In the first appeal she sought a stay of the order, and in the second, she sought review of the decision. On January 30, 2008, a hearing was conducted before the French appellate court, and as permitted by applicable French law, the parties presented evidence and testimony at the appellate proceeding. On February 20, 2008, the French appellate court entered an order denying the Wife’s request for a stay and ordering that the December 14th order be effectuated immediately. At the time of the filing of this appeal, the French appellate court had not ruled on the Wife’s second appeal.

Following a hearing, the Florida trial court entered an order dismissing the custody portion of the Wife’s petition for dissolution of marriage, finding, in part, that the facts and arguments presented to it were essentially the same facts and arguments presented to the French appellate court; the Wife should not be permitted to re-litigate the custody issue in Florida; under the UCCJEA, the French courts’ orders constitute the initial custody determination; the French courts exercised jurisdiction in substantial conformity with the UCCJEA; the French courts’ determinations were made under factual circumstances meeting the jurisdictional standards of the UCCJEA; and although the family has primarily resided in Florida since 2005, the Wife failed to demonstrate that the parties’ stay in Florida was anything other than temporary and transitory. The Wife’s petition for writ of certiorari followed.

To grant a petition for writ of cer-tiorari, this Court must find that the order under review is “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). As we find that the order dismissing the custody portion of Wife’s petition for dissolution of marriage satisfies this standard, we grant the Wife’s petition for writ of certiorari and quash the order.

One of the stated purposes of the UCCJEA is to “[a]void jurisdictional competition and conflict with courts of other states in matters of child custody.” § 61.502(1). Under the UCCJEA, a foreign country is treated “as if it were a state of the United States” for purposes of applying sections 61.501-.523 of the UC-CJEA. § 61.506(1). A Florida court has jurisdiction to make an initial child custody determination if Florida “is the home state of the child on the date of the commencement of the proceeding,” § 61.514(l)(a). “Home state” is defined in relevant part as “the state in which a child lived with a parent or person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period.” § 61.503(7). The UC-CJEA is a “jurisdictional act which controls custody disputes. It does not deal with priority of dissolution actions.” Arjo-na v. Torres, 941 So.2d 451, 454 (Fla. 3d DCA 2006) (emphasis • omitted). Under the UCCJEA, jurisdictional priority lies in the child’s home state. See Arjona, 941 So.2d at 455.

Although it appears that Florida is the children’s “home state,” section 61.519, prohibits Florida from exercising its jurisdiction under section 61.514 if a proceeding concerning the custody of a child has already commenced in another state having jurisdiction in substantial conformity with section 61.514. Section 61.519, titled “Simultaneous proceedings,” provides in relevant part:

(1) [A] court of this state may not exercise its jurisdiction under ss. 61.514-61.524 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 61.520.

In the instant case, the record dearly demonstrates that when the Wife commenced her proceeding in Florida, “a proceeding concerning the custody of the children] had been commenced” in Guadeloupe, and that the French proceeding had not been terminated or stayed. Thus, if the French trial court exercised its jurisdiction “substantially in conformity” with the UCCJEA, the Florida trial court may not exercise its jurisdiction.

In granting the Husband’s motion to dismiss, the Florida trial court found that the French trial court exercised its jurisdiction in substantial conformity with the UCCJEA. We conclude that this finding is a departure from the essential requirements of the law.

The French court did not exercise its jurisdiction in substantial conformity with the UCCJEA because the UCCJEA focuses on where the children were living prior to the filing of the Husband’s petition for divorce. Under the UCCJEA, jurisdiction is based upon the “home state” of the children, and the UCCJEA defines “home state” as where the children were residing for at least six months prior to the filing of the petition. Rather than focusing on where the children had been residing prior to the Husband filing his petition, the French court focused on the location of the children’s “usual and permanent centre of interest.” The Florida trial court equated the French court’s jurisdictional standard of “usual and permanent centre of interest” with the UCCJEA’s “home state” jurisdictional standard. These two standards, however, are not synonymous. Even if Guadeloupe is the children’s “usual and permanent centre of interest,” the record is clear that the children did not reside in Guadeloupe for six continuous months preceding the filing of the Husband’s petition. Thus, the French trial court did not exercise its jurisdiction over the Husband’s child custody proceeding in substantial conformity with the UCCJEA, and, contrary to the Florida trial court’s conclusion, the Florida trial court could have, and should have, exercised its jurisdiction over the child custody portion of the Wife’s petition.

Because the Florida trial court erroneously found that the French court exercised its jurisdiction in substantial conformity with the UCCJEA, the dismissal of the custody portion of the Wife’s petition amounts to a departure from the essential requirements of the law. In addition, we conclude that the injury caused by the departure is material, and cannot be corrected on postjudgment appeal. Accordingly, we grant the petition for writ of certiorari and quash the order under review.

Petition granted; order quashed.

      . The Husband closed this establishment after filing his petition for divorce.

      . Section 61.514 provides:
      (1)Except as otherwise provided in s. 61.517, a court of this state has jurisdiction to make an initial child custody determination only if:
      (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
      (b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521, and:
      1. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
      2. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
      (c) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a courL of this state is the more appropriate forum to determine the custody of the child under s. 61.520 or s. 61.521; or
      (d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c).
      (2) Subsection (1) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
      (3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.


text:
    Cynthia COSTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-5099.
    District Court of Appeal of Florida, First District.
    March 19, 2009.

      Cynthia Costin, pro se, Petitioner.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the March 14, 2008, judgment and sentence rendered in Wakulla County Circuit Court case number 08-CFA-0044. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


text:
    Dorrie THOMAS, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, and Florida Parole Commission, Respondents.
    No. 1D08-5629.
    District Court of Appeal of Florida, First District.
    March 23, 2009.
    Dorrie Thomas, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Gaither v. McDonough, 968 So.2d 57 (Fla. 1st DCA 2007).

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Arthur McDANIEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0715.
    District Court of Appeal of Florida, First District.
    March 23, 2009.
    Arthur McDaniel, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Kenneth NESMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5960.
    District Court of Appeal of Florida, First District.
    March 23, 2009.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Kenneth Nesmith, appeals his judgments and sentences for three counts of sexual battery and one count of battery. He argues two issues on appeal: (1) the trial court erred in failing to conduct a Nelson inquiry when he requested discharge of his court-appointed counsel and appointment of substitute counsel; and (2) the trial court erred in refusing to allow him to personally cross-examine the victim after he exercised his right to self-representation. We agree with Appellant on both issues. Accordingly, we reverse and remand for a new trial.

Appellant was charged with three counts of sexual battery and one count of aggravated battery with a deadly weapon. During a pretrial hearing, Appellant asked the court, “Can I please have somebody else to represent me, or can I represent myself?” In response, the trial court questioned Appellant, consistent with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), as to whether he understood the ramifications of self-representation. The trial court did not inquire as to the reason Appellant wished to discharge his court-appointed counsel. Appellant indicated that he understood the repercussions of representing himself but wished to do so anyway because his appointed counsel “has not been helping me at all since I’ve been in here.” The trial court determined that Appellant had made a knowing, voluntary decision to represent himself and stated that Appellant’s court-appointed counsel would act as standby counsel during trial. Appellant objected to standby counsel’s presence at his trial.

The State filed a motion for standby counsel to cross-examine the victim, alleging that allowing Appellant to cross-examine her would exacerbate her mental health condition. The trial court granted the State’s motion over Appellant’s repeated requests to cross-examine the victim personally.' At trial, following direct examination, the court gave Appellant time, out of the presence of the jury, to write down questions for standby counsel to ask the victim on cross-examination. The jury found Appellant guilty as charged of three counts of sexual battery and guilty of the lesser-included offense of battery. This appeal follows.

Appellant first argues that the trial court erred in failing to conduct a Nelson inquiry when he made an unequivocal request to discharge his court-appointed counsel. Under Nelson, when a defendant makes clear to the trial court that he desires to discharge his court-appointed counsel, the trial court should inquire as to the reason for the request. Nelson, 274 So.2d at 258-59; see also Maxwell v. State, 892 So.2d 1100, 1102-03 (Fla. 2d DCA 2004). If the defendants reason is not counsels incompetence, then no further inquiry is required. Maxwell, 892 So.2d at 1102; see also Bodiford v. State, 665 So.2d 315, 316 (Fla. 1st DCA 1996). A trial court’s failure to conduct a preliminary inquiry into the defendant’s reason for seeking to discharge court-appointed counsel is not harmless error; rather, it is “a structural defect in the trial requiring reversal as per se error.” Maxwell, 892 So.2d at 1102.

In the instant case, when Appellant stated that he wished to be appointed new counsel or to represent himself, the trial court should have made a preliminary inquiry as to Appellant’s reasons for seeking discharge of his appointed counsel. The trial court, however, failed to make this inquiry and instead proceeded to question Appellant regarding his competence to represent himself under Faretta. This failure constituted reversible error, entitling Appellant to a new trial.

Appellant’s second argument is that the trial court denied him the right to represent himself by not allowing him to cross-examine the victim directly. In Far-etta, the Supreme Court held that the Sixth Amendment provides a criminal defendant a constitutional right to represent himself. 422 U.S. at 819-20, 95 S.Ct. 2525. The Court held that such a right is violated when counsel is unwillingly “thrust” upon the accused. Id. at 820, 95 S.Ct. 2525.

Here, Appellant did not seek participation from standby counsel during his trial. In fact, Appellant objected to standby counsel’s presence at his trial. Although Appellant’s ability to cross-examine the victim was a major element of conducting his own defense, the trial court, over Appellant’s objection, required him to cross-examine the victim in the presence of the jury through standby counsel. This was error, as Appellant was denied the ability to appear as he saw fit. Therefore, under the facts of this case, we find that Appellant’s Sixth Amendment right to personally conduct his defense was violated by the trial court’s refusal to allow him to cross-examine the victim.

Accordingly, we REVERSE and REMAND for a new trial.

WEBSTER, BROWNING, and LEWIS, JJ., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    Derek SAUNDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1004.
    District Court of Appeal of Florida, First District.
    March 24, 2009.
    Derek Saunders, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Clifford Ray TRAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-424.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.

      Clifford Ray Traylor, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Austin v. State, 968 So.2d 1049 (Fla. 5th DCA 2007).


text:
    Ronald Lee CRAIG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2874.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Ronald Lee Craig, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., LAGOA, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Ronald Lee Craig (“Craig”) appeals an order denying his motion under Florida Rule of Criminal Procedure 3.800(a) requesting credit for additional jail time served. Because Craig’s motion requests credit for jail time served after sentencing, we affirm the order without prejudice for the defendant to pursue administrative remedies with the Department of Corrections. See Hidalgo v. State, 729 So.2d 984 (Fla. 3d DCA 1999) (when seeking credit for time served after sentencing the defendant must exhaust administrative remedies with the Department of Corrections before requesting judicial relief). After exhausting such remedies, Craig may file a petition for writ of mandamus against the Department.

Affirmed.


author: SUAREZ, J.

text:
    Rudy McGOVERN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-540.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Rudy McGovern, in proper person.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   SUAREZ, J.

Affirmed. See Batista v. State, 993 So.2d 93 (Fla. 5th DCA 2008).


text:
    Dwayne M. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1556.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Dwayne M. Williams, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

The order on appeal is affirmed without prejudice to appellant’s filing of a proper public record request with the Office of the Attorney General along with payment for the requested records, if required.


text:
    Eugene KNIGHT, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D08-5511.
    District Court of Appeal of Florida, First District.
    March 30, 2009.
    Eugene Knight, pro se, for Petitioner.
    Kim M. Fluharty, General Counsel, Florida Parole Commission, and Sarah J. Rumph, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Grace v. Fla. Parole Comm’n, 985 So.2d 1213 (Fla. 1st DCA 2008).

BENTON, LEWIS, and CLARK, JJ., concur.