text:
    Lazaro J. PADRON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1100.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Lazaro J. Padrón, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric G. ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1823.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Eric G. Anderson, Naples, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and SALTER, JJ.
   PER CURIAM.

We affirm the trial court’s order summarily denying, as facially insufficient, the defendant’s Florida Rule of Criminal Procedure 3.800 motion to allow credit for jail time served. See Whitfield v. State, 864 So.2d 562, 562 (Fla. 1st DCA 2004) (“[A] facially sufficient rule 3.800 motion to correct an illegal sentence must allege where and how the court records demonstrate entitlement to relief.” (citing Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998))). However, we affirm without prejudice to the defendant’s filing of a legally sufficient motion.

Affirmed.


author: SUAREZ, J.

text:
    Ricardo ALEMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-674.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Ricardo Aleman, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).


text:
    Darius THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1302.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Darius Thomas, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012).


text:
    Willie SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3930.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Willie Smith, Jr., Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

MAY, C.J., GROSS and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    Marvin JEAN-MICHEL, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-616, 4D11-617, 4D11-618.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.

      Richard W. Springer and Catherine M. Mazzullo of Richard W. Springer, P.A., Palm Springs, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his consecutive life sentences imposed in three cases involving three separate criminal episodes. He claims that because he was nineteen at the time of the incidents, the life sentences are unconstitutional as cruel and unusual punishment. He also contends that the court had discretion to sentence him to less than life pursuant to the 10-20-Life statute, section 775.087(2)(d), Florida Statutes, and did not exercise that discretion. We sua sponte consolidate these cases for purposes of this opinion and conclude that both claims are meritless and affirm the sentences.

In circuit court case number 2009-CF-014593, (appellate case number 4D11-616, hereinafter “Case No. 616”), appellant was charged with two counts of aggravated assault with a firearm on two separate victims, one count of attempted first degree murder with a firearm, and one count of attempted robbery with a firearm, for incidents occurring on November 17, 2009. One victim suffered a gunshot wound to her left ear and back of her head. In circuit court case number 2010-CF-000318 (appellate court case 4D11-617, hereinafter “Case No. 617”), appellant was charged with two counts of robbery with a firearm, for an incident occurring on August 30, 2009. In circuit court case number 2010-CF-000501 (appellate court case 4D11-618, hereinafter “Case No. 618”), appellant was charged with two counts of robbery with a firearm, for an incident occurring on August 10, 2009. Appellant was nineteen years old at the time all of these crimes were committed.

Appellant entered pleas of guilty to all counts in all three cases and pleaded open to the court. He acknowledged that the maximum sentence for each incident was life in prison. After a full sentencing hearing, the court sentenced appellant in Case No. 616, on counts 1 and 2 (aggravated assault) to five years in prison, while on counts 3 and 4 (attempted murder and aggravated robbery), the court sentenced appellant to life with a twenty-five-year minimum mandatory. In Case No. 617, on both counts of robbery with a firearm, appellant was concurrently sentenced to life with a ten-year minimum mandatory. In Case No. 618, on both counts of robbery with a firearm, appellant was concurrently sentenced to life with a ten-year minimum mandatory. Within each case, appellant’s sentences were concurrent with each other; however, relative to the other cases, appellant’s sentences were consecutive to each other. Appellant’s counsel objected to the consecutive sentences. He now appeals the life sentences. Both issues he raises address the legality of his sentence, which we review de novo. See Jackson v. State, 925 So.2d 1168, 1169 n. 1 (Fla. 4th DCA 2006).

Appellant first argues that because the recent Supreme Court decision in Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), holding that life sentences for non-homicides categorically constituted cruel and unusual punishment for minors, did not limit the definition of “minor,” appellant’s three consecutive life sentences are grossly disproportionate to his non-homicide crimes, and are therefore unconstitutional, because he was nineteen years old when they were committed. This contention is completely refuted by Graham itself.

Prior to Graham, the Supreme Court had determined that imposition of the death penalty on a minor was unconstitutional as cruel and unusual punishment in violation of the Constitution. Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). In creating this categorical ban on the death penalty for juvenile offenders, the Court noted the pitfalls of “[djrawing the line at 18 years of age,” but noted that “a line must be drawn,” and stated that “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood.” Id. at 574. On this basis, the Court held that the age of eighteen is “the age at which the line for death eligibility ought to rest.” Id.

In Graham, the Supreme Court expanded the above rule to hold that while “[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime,” the state must give such a defendant “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” 130 S.Ct. at 2030. The Court noted that such a categorical rule “is necessary here.” Id. However, it again limited the application of the rule to juveniles, meaning persons less than eighteen years of age:

This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment. Because “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,” those who were below that age when the offense was committed may not be sentenced to life without parole for a nonhomicide crime.

Id. (quoting Roper, 543 U.S. at 574, 125 S.Ct. 1183, 161 L.Ed.2d 1) (emphasis added). Contrary to appellant’s argument on appeal that “[t]he Graham Court does not define with specificity the definition of minor,” the Court explicitly applied the same bright-line rule from Roper to life without parole sentences for non-homicide cases for minors.

Appellant claims that the life sentences for non-homicide crimes are grossly disproportionate to the crimes to which he pled. We disagree. Proportionality analysis is objective and guided by “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Here, the victim of the attempted murder suffered from a brain injury and is permanently disabled, according to her testimony at sentencing. Further, in the span of three months, appellant was involved in three separate criminal episodes, all of which were of a violent nature. See Bloodworth v. State, 504 So.2d 495, 498 (Fla. 1st DCA 1987) (“It is apparent from a reading of the Solem opinion that the all-important factor which led the majority to find an Eighth Amendment violation was the fact that the offense for which the defendant was convicted ... was characterized by the Court as a ‘nonviolent felony.’ ”). The First District recently interpreted Blood-worth to stand for the premise that “Solem does not apply in cases involving prior violent felonies.” Andrews v. State, 82 So.3d 979, 986 (Fla. 1st DCA 2011). Based on the violent nature of appellant’s crimes, his life sentences do not offend the Constitution as “disproportionate.” See also Adaway v. State, 902 So.2d 746, 750 (Fla.2005) (reiterating that the sentence length is generally a matter delegated to the legislature to determine the penalty for the gravity of the crime).

Appellant also argues that the trial court erred in concluding that section 775.087 required appellant’s sentences in each case to be consecutive to each other, maintaining that the trial court has the discretion to run the sentences in each case concurrent with the other cases. We agree with the state that appellant was correctly sentenced based on the Florida Supreme Court’s interpretation of the plain language of section 775.087(2)(d), Florida Statutes (2010), in State v. Sousa, 903 So.2d 923 (Fla.2005).

Section 775.087, Florida Statutes, the “10-20-Life” penalty provision for the possession and use of firearms during the commission of crimes, provides:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

§ 775.087(2)(d), Fla. Stat. (emphasis added). As it applies to appellant, convictions of attempted murder, robbery, and aggravated assault, when during the commission of such an offense appellant possessed a firearm or discharged a firearm causing great bodily harm, require the court to impose a minimum mandatory of ten years in prison and twenty-five years in prison, respectively. § 775.087(2)(a), Fla. Stat.

Appellant also claims that the term “any other felony offense” refers to any other non-10-20-Life felony offense. Thus, because appellant’s offenses were 10-20-Life felonies, he argues, the court could use its discretion to run those sentences concurrently. The plain language of the statute does not allow for the qualification suggested by appellant. Appellant’s contention is also refuted by Sousa, 903 So.2d 923, in which the supreme court held that the statute required consecutive sentences for 10-20-Life qualifying crimes committed during a shooting spree against several victims within a single criminal episode. Sousa held that 10-20-Life sentences involving multiple victims must be served consecutively to each other, in accordance with the statutory mandate. Sous a thus applies the statute as written by the Legislature to mandate sentencing for a 10-20-Life offense consecutive to any other felony offense, whether that “other felony offense” is a 10-20-Life offense itself or non-10-20-Life felony.

As noted in Sousa, “[t]he fundamental rule of construction in determining legislative intent is to first give effect to the plain and ordinary meaning of the language used by the Legislature.” Id. at 928. Here, the plain and ordinary meaning leads to no other conclusion but that the sentences for each of the 10-20-Life crimes committed by the appellant must be imposed consecutively to each other. The trial court correctly determined the issue, and we affirm.

STEVENSON and TAYLOR, JJ., concur.

      . Solem is the "first and only case in which the Supreme Court has invalidated a prison sentence because of its length.” Adaway v. State, 902 So.2d 746, 749 (Fla.2005).


text:
    Charles Melvin HAYES Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3915.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Charles Melvin Hayes, Jr., Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of the defendant’s Rule 3.800(a) motion to correct illegal sentence. His claim that the two robbery offenses, to which he pleaded, could not be scored separately on his scoresheet is without merit on its face. The scoring of these separate convictions, even if they did arise from the same criminal episode, is not erroneous and does not violate double jeopardy. § 775.021, Fla. Stat. (2011).

Affirmed.

MAY, C.J., GROSS and CIKLIN, JJ„ concur.


text:
    John HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4115.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

WARNER, HAZOURI and CIKLIN, JJ., concur.


text:
    Martine MISH, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4256.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

WARNER, HAZOURI and CIKLIN, JJ., concur.


text:
    John BISHOP, Appellant, v. DEPARTMENT OF REVENUE, o/b/o Elizabeth Siebert, Appellee.
    No. 4D12-602.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Trisha Toller Webb, Port Orange, for appellant.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Appellant, John Bishop, appeals from the final order and judgment of paternity and support. Appellee, Florida Department of Revenue, Child Support Enforcement Program, acknowledges that the record lacks substantial competent evidence to support the lower court’s order imputing income to the appellant for the purpose of establishing his child support obligation. Accordingly, appellee confesses error. Appellee further acknowledges that, in light of this confession of error, the retroactive child support amount based on the imputed income is also erroneous. We accept the appellee’s confession of error, and reverse and remand the case for further proceedings establishing the appellant’s child support obligation. See Bengisu v. Bengisu, 12 So.3d 283, 286 (Fla. 4th DCA 2009) (“[W]e reverse and remand for the trial court to make the necessary findings based on competent substantial evidence of husband’s income and to award an appropriate amount of temporary support based on those findings. Whether additional testimony and evidence is required or whether the current record contains sufficient evidence, we leave for the trial court to determine.”). The paternity adjudication provisions of the order on appeal are not at issue.

Reversed and remanded.

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Rene MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2477.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    V.J. Benincasa, Vero Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Rene Morales appeals the summary denial of his Rule 3.850 motion to vacate judgment and sentence and motion for rehearing. We affirm.

On June 3, 2009, appellant, a Mexican national and non-U.S. citizen, entered a negotiated no contest plea to possession with intent to sell or deliver cannabis (Count I), possession of more than 20 grams of cannabis (Count II), and possession of drug paraphernalia (Count III). The trial court accepted the plea, withheld adjudication of guilt, and placed appellant on two years of drug offender probation on counts I and II. On Count III, the trial court placed appellant on one year of drug offender probation concurrent with Counts I and II.

On June 9, 2010, appellant filed a Rule 3.850 motion to vacate judgment and sentence, claiming his counsel provided ineffective assistance of counsel in failing to advise him of adverse immigration consequences and failing to advise him that his convictions on Counts I and II constituted a double jeopardy violation. Appellant also asserted that the trial court should have allowed him to withdraw his plea because his convictions for possession of cannabis with intent to sell or deliver (Count I) and possession of more than twenty grams of cannabis (Count II) violate double jeopardy. Accepting the state’s concession of error as to the double jeopardy violation, the trial court amended the judgment and vacated Count II. We reject appellant’s contention that the trial court must also allow him to withdraw his plea and vacate the two-year drug probation sentence imposed on Count I.

We further reject appellant’s claim that his plea was involuntary pursuant to Padilla v. Kentucky, — U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Padilla does not apply retroactively to convictions that were final when Padilla was decided. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011); Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011); State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011); Barreneche v. State, 80 So.3d 455 (Fla. 1st DCA 2012).

Moreover, we have held that the deportation warning of Florida Rule of Criminal Procedure Rule 3.172(c)(8) cures any prejudice. Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010); accord Castano v. State, 65 So.3d 546, 547-48 (Fla. 5th DCA 2011), review granted, 81 So.3d 413 (Fla.2012); Batista v. State, 90 So.3d 373 (Fla. 1st DCA 2012). Contra Hernandez, 61 So.3d at 1147-48; O’Neill v. State, — So.3d -(Fla. 2d DCA 2012).

Affirmed.

STEVENSON, TAYLOR and GERBER, JJ., concur.


text:
    Samuel CHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2039.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Samuel Charles, Plantation, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. The postconviction motion was untimely. Padilla v. Kentucky, — U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is not retroactive. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011). Further, appellant admits that he has other convictions which have been used to initiate deportation proceedings against him. He has not shown that he is removable based solely on the plea in this case. See Forrest v. State, 988 So.2d 38, 40 (Fla. 4th DCA 2008); Buton v. State, 995 So.2d 1130, 1132 (Fla. 4th DCA 2008). Finally, appellant has not alleged that the court did not give the standard deportation warning provided for by Florida Rule of Criminal Procedure 3.172(e)(8) which would cure the potential prejudice. Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

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


text:
    Jose G. SEQUEIRA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2035.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Lee Friedland, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011). Further, appellant is removable based on other convictions and is not entitled to postconviction relief on his claim. See Forrest v. State, 988 So.2d 38, 40 (Fla. 4th DCA 2008); Buton v. State, 995 So.2d 1130,1132 (Fla. 4th DCA 2008).

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


text:
    Milburne LESTRADE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2027.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Jonathan S. Friedman of Jonathan S. Friedman, P.A., Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s untimely postconviction motion which attempted to challenge his 1990 plea. Appellant’s claim that the trial court failed to advise him about deportation consequences was not brought within the two-year window created by State v. Green, 944 So.2d 208 (Fla.2006).

Padilla v. Kentucky, — U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is not retroactive. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

Further, appellant appears to have various other felony convictions in unrelated cases which may subject him to removal. He has not shown that the plea in this case alone subjects him to removal. See Forrest v. State, 988 So.2d 38, 40 (Fla. 4th DCA 2008); Buton v. State, 995 So.2d 1130,1132 (Fla. 4th DCA 2008).

Affirmed.

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


author: STEVENSON, J.

text:
    Frank J. ORLANDO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1952.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STEVENSON, J.

Appellant was charged with aggravated assault with a deadly weapon and entered an open plea of no contest. The trial court sentenced appellant to fifty-four months imprisonment, followed by six months probation. The trial court also entered a cost order of $891 in favor of the Crimes Compensation Trust Fund for counseling services and a restitution order of $891 for the same. Thereafter, appellant filed a motion to withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(i), which the trial court denied after a hearing. The appellant alleged that he misunderstood the consequences of the plea and believed that he would be sentenced to no more than one year. We find no abuse of discretion in the trial court’s denial of the motion to withdraw plea since the plea colloquy and the evidence presented at the hearing support the trial court’s determination that appellant was not misled as to the possible consequences of his open plea. However, we agree with appellant that the restitution order must be stricken as the trial court orally pronounced the cost order of $891 in favor of the Crimes Compensation Trust Fund, but restitution was never addressed at the hearing. See Exilorme v. State, 857 So.2d 339, 340 (Fla. 2d DCA 2003) (noting that the imposition of restitution requires notice and a hearing). It appears that the restitution order in the instant case was simply entered by mistake.

We affirm the sentence but vacate the restitution order.

WARNER and TAYLOR, JJ., concur.


text:
    Artis ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1817.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Artis Alexander, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s motion to correct illegal sentence as the dual habitual offender and prison releasee reof-fender sentencing is permissible as is the consecutive sentencing of the two separate lower court cases. See Hale v. State, 630 So.2d 521, 525 (Fla.1993); see also Grant v. State, 770 So.2d 655 (Fla.2000). However, we remand the matter to the trial court to correct a scrivener’s error. The State recognizes the error within the written sentencing documents which reflects consecutive sentencing of one of three counts within LT03-10525 while the trial court verbally announced that all of those counts were to run concurrently. It is not necessary for appellant to be present in court to correct the error.

MAY, C.J., STEVENSON and GERBER, JJ., concur.


text:
    Thomas JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2782.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2012.

      Thomas Johnson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and EMAS, JJ.
   SUAREZ, J.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).


text:
    Yelena N. LANGDON, Appellant, v. Jon LANGDON, Appellee.
    No. 1D11-6660.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2012.
    Anthony C. Bisordi of Bisordi & Bisordi, P.A., Shalimar, for Appellant.
    Jon Langdon, pro se, Appellee.
   PER CURIAM.

Yelena Langdon, Former Wife, appeals from the trial court’s order modifying the time-sharing with the parties’ minor child and raises three issues on appeal, only two of which merit discussion. The Former Wife argues that the trial court erred in modifying the final order establishing time-sharing when the trial court found that Jon Langdon, Former Husband, failed to establish that there was a substantial change in circumstances not reasonably contemplated at the time of the final order. The Former Wife further argues that the trial court lacked jurisdiction to modify the final order establishing time-sharing after granting her Motion to Dismiss, Motion for Summary Judgment, and/or Motion for Judgment on the Pleadings. We agree and we reverse the trial court’s order to the extent that it modified the final order establishing time-sharing.

After the trial court entered its Final Judgment of Dissolution of Marriage, the trial court held an evidentiary hearing on the Former Wife’s Motion for Final Determination on All Reserved Issues. In its Final Order on All Pending Issues (“final order”), the trial court ordered, among other things, that after consideration of all the evidence and the factors indicated in section 61.13, Florida Statutes (2009), the parties shall share the parental responsibility of their minor child. The trial court also established a time-sharing plan and stated that the minor child should reside with the Former Wife from Monday through Friday. Further, the trial court awarded the Former Husband time-sharing with the minor child every weekend of each calendar month starting when school adjourns on Friday, except the fourth and any fifth weekend in the month.

The Former Husband subsequently filed a Verified Emergency Supplemental Complaint for Modification of Final Judgment of Dissolution of Marriage and Final Order on All Pending Issues and alleged that there has been a substantial change in circumstances since the entry of the trial court’s final order because his cancer was no longer in remission. The Former Husband further alleged that it would be in the best interest of the minor child if the minor child resided with him. Accordingly, the Former Husband requested that the trial court modify the parties’ time-sharing schedule. In response, the Former Wife filed a Motion to Dismiss, Motion for Summary Judgment, and/or Motion for Judgment on the Pleadings, in which she argued, among other things, that the trial court had considered the Former Husband’s medical condition when it issued the final order, and that as such, the Former Husband’s allegations were insufficient to support a modification of time-sharing. Subsequently, the Former Husband filed a Verified Emergency Motion to Modify Time-Sharing and Verified Motion for Contempt, in which he alleged that his cancer has come out of remission and because of that his health was deteriorating. The Former Husband requested that the trial court treat his motion “in an emergency manner due to prognosis and dire nature of [Former Husband’s] medical condition.” The trial court entered an Order on the Former Wife’s Motion for Contempt and on the Former Husband’s Verified Emergency Motion to Modify Time-Sharing. In this order, the trial court ordered, among other things, that the Former Husband’s weekend time-sharing shall be expanded starting when school adjourns on Thursday on a temporary basis.

The trial court then held a hearing on the Former Wife’s Motion to Dismiss, Motion for Summary Judgment, and/or Motion for Judgment of the Pleadings. During the hearing, the parties presented their arguments regarding whether the Former Husband’s medical condition was an unanticipated change in circumstances justifying a modification in the time-sharing plan. After the hearing, the trial court entered an Order Granting the Former Wife’s Motion to Dismiss, Motion for Summary Judgment, and/or Motion for Judgment on the Pleadings. In the order, the trial court found that it took the Former Husband’s medical condition into consideration when it issued the final order. Accordingly, the trial court explained that the basis supporting the modification was not unanticipated. The trial court stated that notwithstanding its finding, the extended time-sharing granted in its previous order “shall remain in effect on a temporary basis” and that it was in the best interest of the minor child to continue the extended time-sharing. This appeal follows.

“The standard for reviewing a trial court’s ruling on a motion to modify custody is abuse of discretion, although the trial court has much less discretion to modify [a] custody order than it enjoys in making the original custody determination.” Bon v. Rivera, 10 So.3d 193, 195 (Fla. 1st DCA 2009). Section 61.13(2)(c) Florida Statutes (2011), provides as follows:

The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, except that modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances.

Accordingly, in order to obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties, and (2) that the change in custody serves the best interests of the child. Wilson v. Roseberry, 669 So.2d 1152, 1154 (Fla. 5th DCA 1996). Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment. Cooper v. Gress, 854 So.2d 262, 265 (Fla. 1st DCA 2003). This rule promotes the finality of the judicial determination of the custody of children. Wade v. Hirschman, 903 So.2d 928, 932 (Fla.2005).

Here, in the Order Granting the Former Wife’s Motion to Dismiss, Motion for Summary Judgment, and/or Motion for Judgment on the Pleadings, the trial court found that the Former Husband failed to carry his statutory burden to establish the basis for the modification. The trial court also found that it took the Former Husband’s medical condition into consideration when it issued the final order. Further, the trial court explained that the basis supporting the modification was not unanticipated. Notwithstanding its findings and its order granting the Former Wife’s motions, the trial court modified the final order establishing time-sharing. This modification of time-sharing was contrary to established law. Furthermore, the trial court could not modify time-sharing because it had already dismissed the Former Husband’s modification complaint in the same order. See Fisher v. Whiteside, 541 So.2d 1209, 1210 (Fla. 2d DCA 1988) (holding that the court lacked jurisdiction to modify visitation where it dismissed the modification petition). Thus, we reverse the trial court’s order only to the extent that it modified the final order establishing time-sharing. We affirm the order in all other respects and remand to the trial court for correction of the Order Granting the Former Wife’s Motion to Dismiss, Motion for Summary Judgment, and/or Motion for Judgment on the Pleadings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

DAVIS, LEWIS, and MAKAR, JJ„ concur.


text:
    Jesse REESE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-708.
    District Court of Appeal of Florida, Fifth District.
    Sept. 4, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 37 Fla. L. Weekly S449 (Fla.), corrected opinion, 96 So.3d 412 (Fla.2012).

EVANDER, COHEN and JACOBUS, JJ., concur.


text:
    Denard D. MAYBIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3093.
    District Court of Appeal of Florida, Fifth District.
    Sept. 4, 2012.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 37 Fla.L.Weekly S449, 96 So.3d 412 (Fla.2012).

GRIFFIN, EVANDER and COHEN, JJ., concur.


text:
    Antonio CALDERON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-398.
    District Court of Appeal of Florida, Fifth District.
    Sept. 4, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012).

PALMER, LAWSON and JACOBUS, JJ., concur.


text:
    Jarrish OUTLAW, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-981.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2012.
    Melissa A. Loesch of Law Offices of Roger D. Futerman & Associates, Clear-water, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

This court is without jurisdiction to consider this appeal due to the untimely filing of the notice of appeal. See Fla. R.App. P. 9.140; Fla. R.Crim. P. 3.850(h). Because counsel for Jarrish Outlaw filed the motion for rehearing more than fifteen days after service of the final order, it did not toll the time for filing the appeal, regardless of the fact that the postconviction court chose to address that untimely motion for rehearing. See Reid v. Cooper, 955 So.2d 31, 32 (Fla. 3d DCA 2007) (holding that an untimely motion for rehearing is a nullity and does not toll the time in which to file an appeal).

This dismissal is without prejudice to counsel filing a motion in this case number for a belated appeal, observing all the requirements of Florida Rule of Appellate Procedure 9.141(c), including the submission of an affidavit or sworn pleading by counsel with first-hand knowledge of the facts giving rise to the application for a belated appeal.

Dismissed.

CASANUEVA, WALLACE, and CRENSHAW, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Jonathan HIRDHANI, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1023.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2012.
    Arturo R. Rios of Law Office of Arturo R. Rios, P.A., St. Petersburg, for Appellant.
   CASANUEVA, Judge.

Jonathan Hirdhani appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Hirdhani raised two grounds in his motion, but the post-conviction court correctly denied the motion as untimely.

As we did in Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011), we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify the following question of great public importance:

SHOULD THE RULING IN PADILLA V. KENTUCKY, — U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

ALTENBERND and CRENSHAW, JJ., concur.


author: CIKLIN, J.

text:
    AGBL ENTERPRISES, LLC, a Florida Limited Liability Company, Appellant, v. GIRLCOOK, INC., a Florida Corporation, d/b/a The River Grille, and Frank Romeo, Appellees.
    No. 4D11-2082.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Jaime M. Stich and J. Garry Rooney of Rooney & Rooney, P.A., Vero Beach, for appellant.
    No brief filed on behalf of appellees.
   CIKLIN, J.

AGBL Enterprises, LLC appeals from a final judgment which awards damages to Girlcook, Inc. on Girlcook’s counterclaim in this breach of contract action. We affirm the trial court’s finding that AGBL breached the lease by failing to maintain the premises, but reverse and remand with instructions that the trial court reduce Girlcook’s damages by $102,395.15 — the amount the trial court attributed to AGBL’s failure to timely complete work on the shopping plaza in which the leased building was located.

In June 2007, AGBL and Girlcook entered into a commercial lease agreement and an accompanying rider (collectively referred to as the “Lease”) in which AGBL was to lease to Girlcook a commercial building in a shopping plaza for use as a full-service restaurant. The first paragraph of the Lease contained the following integration clause:

[T]he entire agreement between the Lessor and Lessee consists solely of the terms in this lease and the accompanying rider. The agreement between the Lessor and Lessee will not consist of any verbal or implied statements which are not specifically written in this lease or the accompanying rider.

(emphasis in original).

Pursuant to the Lease, Girlcook was required to make monthly rent payments before the first day of each month. In turn, AGBL was “solely responsible for maintaining the roof, foundation and exterior of the building, and all parking areas in decent repair for their intended use.” Although the plaza was undergoing major renovations at the time the Lease was signed, there was no provision in the Lease requiring the renovations to be completed by any specific date. Additionally, in the accompanying rider, Girlcook agreed to accept the premises (including the building being leased and the entirety of the plaza) “in their current condition at the beginning of the rental period.”

Girlcook did not make rent payments in September, October, or November 2008. In November 2008, AGBL filed a two-count complaint against Girlcook seeking to evict Girlcook and seeking past-due rent for Girlcook’s alleged breach of the Lease. As an affirmative defense, Girlcook alleged that it had notified AGBL that AGBL was in breach of the Lease for failing to maintain the premises, and that as a result, Girlcook was placing the rents in escrow. Girlcook also filed a counterclaim against AGBL alleging that AGBL fraudulently induced it into executing the Lease and that AGBL breached the Lease by failing “to have the sewage hooked up as required by September 1, 2007;” by refusing “to repair the roof, parking structures, air conditioning, and landscaping;” by providing inadequate parking spaces for the businesses in the plaza; and by intentionally removing and destroying the return air unit of the restaurant.

Subsequent to a two-day non-jury trial, the trial court entered a final judgment finding in favor of Girlcook on its claim for breach of contract. The trial court determined that AGBL had breached the Lease because AGBL’s “work in the plaza was not completed by September 1, 2007,” and because AGBL had failed to maintain the roof of the building, exterior of the plaza, and all parking areas in decent repair. The trial court determined that Girlcook suffered $102,895.15 in damages (including lost profits) due to AGBL’s failure to complete work on the plaza by September 1, 2007, and $32,840.62 in damages as a result of AGBL’s failure to maintain the premises, for a total damages award of $135,285.77.

AGBL raises several arguments on appeal, only one of which we find has merit. AGBL argues that the trial court erred by considering parol evidence to contradict the terms of the fully integrated written lease agreement. We agree. The trial court interpreted the Lease as requiring AGBL to complete its work on the plaza and to hook up the leased building to the county sewer system by September 1, 2007. The Lease, however, contained no such covenant. To the contrary, the Lease provided that Girleook was accepting the premises, including the building and the plaza, “in their current condition at the beginning of the rental period.” See Rosenstein v. Rosenstein, 976 So.2d 1148, 1149 (Fla. 4th DCA 2008) (“A court may not change the terms of a contract to achieve what it might think is a more appropriate result, or to relieve one side from an improvident bargain.” (citations omitted)); Allett v. Hill, 422 So.2d 1047, 1050 (Fla. 4th DCA 1982) (explaining that “the admission of parol evidence to add a term to [a fully-integrated] written lease which, whether part of the preliminary negotiations or a separate subsequent condition, plainly violates, respectively, the doctrine of merger and the parol evidence rule”).

Since AGBL had no obligation under the Lease to complete its work on the plaza by September 1, 2007, it cannot reasonably be charged with any damages that Girleook incurred as a result of a delayed opening. Accordingly, the appropriate amount of the judgment in favor of Girleook should be $32,840.62. In all other respects, the final judgment is supported by competent, substantial evidence and, therefore, will not be disturbed. We direct the trial court on remand to enter an amended final judgment which is consistent with this opinion.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

MAY, C.J., and TAYLOR, J., concur.

      . In March 2009, the trial court severed AGBL's eviction count from the remainder of the litigation. Following a trial in May 2009, the trial court denied AGBL's action to evict Girlcook from the leased building.

      . The trial court also found in favor of Girl-cook on AGBL’s breach of contract claim, and in favor of AGBL on Girlcook's fraudulent inducement counterclaim. We find no merit in AGBL's claim that the trial court erred by failing to find that Girlcook breached the Lease as a matter of law by failing to timely pay several months’ rent. Girlcook’s damages exceeded all liability it had to AGBL during the four months that it withheld rent before placing subsequent rent payments in the court registry. As such, Girlcook successfully asserted its affirmative defense of set-off.


text:
    Daniel MORTIMER, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1025.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.

      Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s untimely motion for postconviction relief. In 1970, a jury convicted appellant of two counts of aggravated assault with a deadly weapon with intent to effect death. The court withheld adjudication and placed him on probation for ten years. Forty years later, he sought to vacate these convictions because he learned that he is now subject to deportation. We conclude that appellant failed to establish a valid exception to the time limit and that he is not entitled to vacate his convictions based on ineffective assistance of counsel. At this point appellant’s remedy, if any, is with immigration officials and in the immigration proceedings.

Appellant alleges that in 1970 he was led to believe he was not deportable. He in turn travelled in and out of the country and renewed his green card for many years without issue until November 2009 when he was denied readmission upon his return from the Bahamas where he attended his brother’s funeral. On November 27, 2009, he was served with a notice to appear for removal proceedings based on these convictions. He sought postconviction relief in October 2010.

Appellant’s claims of ineffective assistance of counsel are untimely. He cannot seek a new trial based on alleged deficiencies in counsel’s representation more than forty years after his trial. Appellant seeks to excuse his untimely filing, contending that he received ineffective assistance of counsel under Padilla v. Kentucky, — U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), because counsel advised him after sentencing that he would not be deported. Padilla, however, is not retroactive. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

Appellant was convicted after jury trial, and counsel quite effectively, and successfully, argued for a withhold of adjudication and probation. Appellant contends that he did not appeal or timely pursue postconviction remedies because counsel — and immigration officials — advised him that he would not be deported. The State explained in its response that, under the immigration law in effect in 1970, a conviction for a crime of moral turpitude was not a deportable offense unless the court imposed a sentence of one year or longer. Perez v. I.N.S., 116 F.3d 405, 408 (9th Cir.1997).

Before the [Antiterrorism and Effective Death Penalty Act]’s amendment, an alien was deportable under section 1227(a)(2)(A)(i) only if the alien had committed a crime of moral turpitude that resulted in a sentence of a year or longer. As amended by section 435 of the AEDPA, section 1227(a)(2)(A)© covers crimes of moral turpitude if “a sentence of one year or longer may be imposed.”

Id.

Appellant has not established a valid exception to the time limitation. See Fla. R.Crim. P. 3.850(b).

Appellant’s claim that counsel was ineffective in failing to request a judicial recommendation against deportation (JRAD) is without merit. At the time of the conviction, appellant was not deportable. Thus, counsel was not deficient in failing to seek a JRAD. Further, counsel’s failure to have requested a JRAD could have been discovered with due diligence and raised in a timely motion. See Ey v. State, 982 So.2d 618, 624 (Fla.2008) (holding that the postconviction time limit begins to run when a conviction becomes final not when a movant learns of misadviee); Gusow v. State, 6 So.3d 699 (Fla. 4th DCA 2009).

According to appellant, counsel told him that the “immigration situation had been taken care of’ and that the convictions did not make him deportable or inadmissible. He alleges that immigration officials found him not deportable at a hearing in 1970 and that he has not had any immigration problems over the years in renewing his green card or upon return from his numerous trips to the Bahamas. He states under oath that his probation agent and an immigration service agent in 1970 also told him that he would not be deported. While he claims that this supports his argument that he had no reason to question his attorney’s advice, it severely undermines his argument that counsel’s advice was deficient. He has not shown that a reasonably competent attorney would have sought a JRAD, or provided different advice, under these circumstances.

This case highlights a serious problem in applying the holding of Padilla retroactively. Immigration law changes, and the initiation of removal proceedings is often a discretionary decision. Here, the amendment that makes appellant removable was enacted in 1996. Perez, 116 F.3d at 408.

The internal policies of immigration officials are also subject to change. Because the potential immigration consequences are often in flux, it is difficult if not impossible for a state court to determine accurately whether counsel performed defi-ciently in providing advice at a particular time. The more remote in time, the more difficult an accurate assessment becomes. In some circumstances, such as those in this case, the advice could be accurate at the relevant time, but a subsequent change in law may make the defendant deportable.

Padilla involved an “aggravated felony.” The Court found that the conviction required virtually “automatic” deportation, and this was clear and succinct from the face of the statute. 130 S.Ct. at 1483. A conviction for an “aggravated felony” disqualifies a permanent resident for discretionary cancellation of removal. 8 U.S.C. § 1229b(a)(3). Appellant has not shown that to be the situation here, nor has he shown that counsel’s advice about his immigration status was deficient under the law as it stood in 1970.

It is impractical for courts to reconstruct the status of immigration law decades later. Further, although some defendants are rendered removable by their convictions, the reality has been that removal proceedings are not always initiated or are not initiated until years later. The delay that often occurs in initiation of removal proceedings was the concern that spurred the holding in Peart v. State, 756 So.2d 42 (Fla.2000), which made the “threat of deportation” the triggering event for the two-year postconviction relief time limit.

The Florida Supreme Court subsequently-receded from Peart and has held that a movant must raise a claim involving adverse immigration consequences within two years of the conviction becoming final. State v. Green, 944 So.2d 208 (Fla.2006). This holding recognizes that a defendant has a duty to exercise due diligence, research immigration law, and discover the deficient performance of counsel within the time limit. Appellant did not bring his claim within the two-year window created by Green.

While deportation may be a harsh consequence under the circumstances of this and other cases, appellant has not shown that his deportation is automatic and clear from the face of the statute as was the case in Padilla. He may in fact qualify for discretionary cancellation of removal. The possibility that he may be deported does not entitle him to have his 1970 convictions vacated or to bring a postconviction challenge more than forty years after his trial.

Appellant attempts to hold his trial counsel to an impossible standard. To illustrate, appellant complains in his motion that, after immigration officials initially found he would not be deported, he “was not told that the Government could change its’ [sic] mind and be [sic] deported nor that he may nevertheless be inadmissible if he leaves the country.” He does not explain why a reasonably competent criminal defense attorney would have foreseen and advised him of this. He has not shown that he was deprived of the assistance of counsel required by the Constitution.

Padilla has not been held to apply retroactively. Fla. R.Crim. P. 3.850(b)(2). We strongly caution against doing so. In addition to the reasoning of Hernandez, with which we agree, the interest in finality for criminal convictions, and the potential effects on the administration of justice, strongly weigh against applying Padilla retroactively.

Appellant’s claims of ineffective assistance of counsel are untimely and without merit. He is not entitled to vacate his convictions or receive a new trial. His allegations regarding the past conduct of immigration officials, and the other circumstances of his case, should be raised in the federal proceedings, not in a postcon-viction motion in state court filed more than forty years after the convictions became final.

Affirmed.

HAZOURI, CIKLIN and CONNER, JJ., concur.

      . "[T]he AEDPA’s amendment to section 1227(a)(2)(A)(i) applies "to aliens against whom deportation proceedings are initiated after the date of the enactment of this Act [April 1996].” AEDPA § 435(b).” Id. "Legislation providing for the deportation of aliens is not invalid because retrospective in operation.” U.S. ex rel. De Luca v. O’Rourke, 213 F.2d 759, 763 (8th Cir.1954) (citations omitted).


author: GERBER, J.

text:
    Bruce W. BAUER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-755.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals the circuit court’s revocation of his probation for the underlying offense of lewd and lascivious molestation of a child under the age of twelve. The court revoked the defendant’s probation after finding that he possessed pornographic material which allegedly was relevant to his deviant behavior pattern. Pursuant to Kasischke v. State, 991 So.2d 803 (Fla.2008), and Sellers v. State, 16 So.3d 225 (Fla. 5th DCA 2009), we reverse because the state did not present competent, substantial evidence to prove that the pornographic material was relevant to the defendant’s deviant behavior pattern.

In the underlying offense, an eleven-year-old girl was sleeping over at a residence where the defendant was living and, while she was sleeping, he touched her breast and genital area. The defendant pled guilty to that offense. The circuit court sentenced the defendant to a term in prison to be followed by a term of sex offender probation. As part of the probation, the circuit court imposed a condition required by section 948.03(5)(a)7., Florida Statutes (2001), prohibiting the defendant from “viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior 'pattern.” § 948.03(5)(a)7., Fla. Stat. (2001) (emphasis added).

While the defendant was on probation, a team of police and probation officers searched his home. In a closet, the officers found a photo of a naked woman. In the same closet, the officers also found two DVDs, one of which had photos of naked women on its cover. The officers played the DVDs on the defendant’s computer, but according to one officer, they “didn’t watch too much of it.” According to another officer, the DVDs depicted “heterosexual couples rather animatedly involved in sexual intercourse.”

Based on the defendant’s possession of the DVDs, the state charged the defendant with violating the probation condition at issue. At an evidentiary hearing, the state presented the testimony of the investigating officers, who described the DVDs as stated above. After the state rested, the defendant argued the state did not prove that the DVDs were relevant to his deviant behavior pattern. According to the defendant’s counsel:

[A]lthough [the defendant] is not allowed to have pornographic material that’s relevant to the deviant behavior pattern, he should be allowed to have pornographic material that’s not relevant to his deviant behavior pattern; meaning that he should be allowed to have regular heterosexual legal porn.
There’s been no testimony or evidence that the pornographic material in this case was relevant to a deviant behavior pattern. There’s been no testimony or evidence of what this deviant behavior pattern is or was at the time the search was conducted.
The court then addressed the state:
I’m not sure how to reconcile this part of the [probation condition] that says he’s not allowed to possess, own, look at, view pornographically stimulating material that is ... relevant to the offender’s deviant pattern. I don’t know what that means, help me.
... [Defense counsel’s] argument [is] that ... [the defendant] can look at dirty pictures and dirty movies as long as it’s not appealing to his deviant pattern. That’s what I hear [defense counsel] saying, and so he can have kind of run of the mill, ordinary, two consenting adults having sex material because ... there’s no proof or evidence that this somehow conflicts with his deviant behavior pattern.
The state responded:
[T]he original lewd and lascivious molestation was ... that while an 11 year old child ... was sleeping over at the residence ... he touched her breast and genital area.
One of the DVDs that he’s in possession of makes reference, crudely, to female genitalia. Also, the images on the other DVD have what looks like very young girls on them.
Having photographic depictions of young looking individuals and pornographic videos would be, at least, relevant to his sexual deviant behavior; and ... considering how we legally define the term ‘relevant’ ... it’s anything having any tendency to make something more or less likely.

The circuit court expressed its understanding of the state’s argument to be “any depiction where there’s — because he was involved in sexually fondling ... a girl’s vagina — that anything similar of that, irrespective of age, would count.” The state agreed, continuing: “It is females. And I would emphasize the term ‘relevant,’ it doesn’t state ... texturally on its face that it needs to be explicitly corroborative.”

The court then addressed defense counsel:

I’m prepared to make this ... connection that ... it is relevant to [the defendant’s] sexual deviant behavior that ... anything that would appeal to one’s prurient interest involving girls as part of the object of the sexual thing whether it’s two girls, one by herself, [or] a woman and a man. I think that that is relevant to his deviant behavior.
I think that is part and parcel of the charges he pled guilty to ... I think I might be more tempted by [your] argument if ... there were no girls involved, women[,] or irrespective of how young they actually are, or appear.
... I’m not prepared to parse out so finely to say: ‘Oh well, it’s not pictures of young girls, the age of his victim that he possessed, and anything a safe number of years away from that is fair game for him.’
I think that ... the Legislature intended to keep people like [the defendant] from having sexually stimulating material of any nature that, that is same sex victims. So, I’m on board with what [the State is] trying to argue.
... [B]ut I’m not ... making that ruling yet ... I’m inviting you, [defense counsel], to argue further to tell me where I’m going down the wrong path.

Defense counsel responded that the state did not present any evidence regarding the ages of the women on the DVDs. The court then engaged defense counsel in the following exchange:

COURT: Well, the officer talked about it was heterosexual sex.
DEFENSE: Heterosexual adults. COURT: Right, right.
DEFENSE: He said it was heterosexual adults that he viewed.
COURT: Well, I will find ... that based upon the evidence that I have heard ... the material is sexually explicit. It involves women of some age.

The court then questioned one of the officers about the ages of the women on the DVDs. The officer responded: “It’s hard to tell, you would have to look at [the DVDs].”

However, the state did not request the court to look at the DVDs, and the court did not do so on its own. Instead, based on the testimony and arguments presented, the court found that the materials were relevant to the defendant’s deviant behavior pattern. Based on that finding, the court found that the defendant violated the probation condition at issue.

This appeal followed. The defendant argues that the state did not present competent, substantial evidence to show that the DVDs, depicting adult sexual intercourse, were relevant to the deviant behavior pattern of his underlying offense, that is, touching a minor in a sexual manner. Therefore, the defendant argues, the circuit court erred in finding that he violated the probation condition at issue.

We review the circuit court’s decision for an abuse of discretion and to determine whether competent, substantial evidence supported the decision. See Del Valle v. State, 80 So.3d 999, 1009 (Fla.2011) (appellate courts generally apply an abuse of discretion standard when reviewing a trial court’s decision to revoke probation when the issue presented is a question of fact) (citation omitted); Davis v. State, 48 So.3d 176, 179 (Fla. 4th DCA 2010) (“To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation.”) (citation and quotations omitted).

Here, we conclude that the circuit court erred in finding that the defendant violated the probation condition at issue. The probation condition at issue arises from section 948.03(5)(a)7., Florida Statutes (2001). That statute, in pertinent part, requires that any order imposing probation or community control upon sexual offenders include:

a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.

§ 948.03(5)(a)7., Fla. Stat. (2001) (emphasis added).

Our supreme court analyzed the statute in Kasischke v. State, 991 So.2d 803 (Fla.2008). At issue in Kasisehke was “whether the statute prohibits sexual offenders serving probation or community control from possessing any pornographic material at all or only such material relevant to the offender’s deviant behavior.” Id. at 805. The court held: “An offender does not violate this condition unless the ‘obscene, pornographic, or sexually stimulating’ material at issue is relevant to the ‘deviant behavior pattern.’ ” Id. at 815. Following Kasisehke, the fifth district, in Sellers v. State, 16 So.3d 225 (Fla. 5th DCA 2009), further explained the statute:

Whether pornographic, obscene, or sexually stimulating material is relevant to a sex offender’s deviant behavior pattern will undoubtedly depend on the underlying facts and circumstances of the initial offense. In some cases, this determination will be relatively easy and straightforward. However, in other cases, when the material is not clearly or closely related to the underlying offense, there must be evidence sufficientr ly linking the materials to the defendant’s deviant behavior pattern. This will require the State to present evidence establishing a rational relationship between the pornographic, obscene, or sexually stimulating materials and the defendant’s deviant behavior pattern. This may or may not require evidence in the form of expert testimony.

Id. at 227 (footnotes omitted). The fifth district then noted: “Material that does not actually depict a child could still be relevant to deviant proclivities involving children if the material was sexually explicit and contained a puerile or adolescent theme.” Id. at 227 n. 2.

Thus, under Kasisehke and Sellers, a defendant’s mere viewing, owning, or possessing of any obscene, pornographic, or sexually stimulating visual or auditory material, such as the DVDs here, cannot constitute a violation of probation unless the state can establish that the material is “relevant to the offender’s deviant behavior pattern.” § 948.03(5)(a)7., Fla. Stat. (2001). The Legislature’s inclusion of that phrase within the statute suggests the Legislature’s recognition that, under certain circumstances, a defendant’s viewing, owning, or possessing of obscene, pornographic, or sexually stimulating visual or auditory material would not be “relevant to the offender’s deviant behavior pattern.” Otherwise, the phrase would have been unnecessary. See Kasischke, 991 So.2d at 808 (“This phrase must modify something.”); Dennis v. State, 51 So.3d 456, 463 (Fla.2010) (“It is a basic rule of statutory construction that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.”) (citations and quotations omitted).

Here, the state did not present competent, substantial evidence establishing that the DVDs, depicting adult sexual intercourse, were relevant to the defendant’s deviant behavior pattern, that is, touching a minor in a sexual manner. Without the benefit of expert testimony from the state, we conclude that the DVDs would have been relevant to the defendant’s deviant behavior pattern only if they depicted or suggested the following deviant behaviors: (1) viewing or touching a minor, regardless of gender, in a sexual manner, or otherwise containing sexually explicit material with “a puerile or adolescent theme,” Sellers, 16 So.3d at 227 n. 2; or (2) touching another person, regardless of age or gender, in a sexual manner against that person’s will. Each of these scenarios is subsumed within the defendant’s deviant behavior pattern.

The state did not present evidence establishing either of these scenarios. As to the first scenario, the state merely argued that the images on one of the DVDs “look[ed] like very young girls on them.” The state did not present any evidence supporting that argument. On the contrary, when the defendant argued the state did not present any evidence regarding the ages of the women on the DVDs, the court questioned one of the officers about that topic. The officer responded: “I just saw a few seconds ... It’s hard to tell, you would have to look at [the DVDs].” However, the court did not look at the DVDs, and never made a finding that the DVDs depicted minors or suggested the depiction of minors. Rather, the court found that the DVDs involved women “of some age.” Cf. Sellers, 16 So.3d at 226-27 (where the defendant was on sex offender probation for possession of child pornography, the defendant’s mere possession of adult pornography did not provide competent, substantial evidence to revoke the defendant’s probation without further findings). As to the second scenario, the state merely presented evidence that the DVDs depicted, in the words of one of the officers, “heterosexual couples rather animatedly involved in sexual intercourse.” The state did not present evidence that the intercourse, or any other touching which may have occurred in the DVDs, was against any person’s will.

In reaching our conclusion, we disagree with the state’s argument, which the circuit court apparently adopted, that the defendant’s possession of the DVDs violated his probation because the DVDs depicted females and the underlying victim was female. Without the benefit of expert testimony from the state, we have no basis to conclude that gender, by itself, was relevant to the defendant’s deviant behavior pattern. More importantly, the state’s gender-based argument seems illogical if it permitted the defendant to have possessed the DVDs at issue only if the persons depicted in the DVDs were all male or if the victim in the underlying case was male.

By our opinion today, we do not mean to suggest that the state never could have met its burden of proof in this case. For example, as the fifth district suggested in Sellers, the state had the opportunity to present expert testimony which may have shown a rational relationship between the DVDs and the defendant’s deviant behavior pattern. If the state presented such expert testimony, and if the circuit court found such expert testimony to be credible in its findings, then perhaps this court would have found that the circuit court’s findings were not in error. While the state is not required to present expert testimony to meet its burden of proof, such expert testimony may have benefitted the state’s case here. However, the state did not pursue that opportunity in this case.

Based on the foregoing, we reverse the circuit court’s final judgment to the extent it was based on the defendant’s alleged violation of probation. We remand for the circuit court to vacate the final judgment and the resulting sentence and to conduct any further proceedings consistent with this opinion.

Reversed and remanded for proceedings consistent with this opinion.

TAYLOR and CIKLIN, JJ., concur.

      . The Legislature has since renumbered and amended the statute in a manner not relevant here. See § 948.30(l)(g), Fla. Stat. (2004).


text:
    John VELCOFSKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5016.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.

      Carey Haughwout, Public Defender, Nan Ellen Foley and Jonathan Dodson, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

John Velcofski appeals his conviction for driving while license permanently revoked pursuant to section 322.341, Florida Statutes. He argues that the trial court erred by admitting into evidence his complete and unredacted driving record which listed twenty-one convictions, including five for driving under the influence (DUI). Because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice, and the error in admitting it was not harmless, we reverse for a new trial.

Velcofski was charged by information with felony DUI, driving while license permanently revoked, and refusal to submit to a chemical or physical test for conduct that allegedly occurred on June 5, 2009. The driving while license permanently revoked count was severed from the other two counts and tried before a jury.

Prior to opening statements, defense counsel sought to prevent the state from introducing Velcofski’s complete driving record as well as a redacted, written plea agreement from a 2003 DUI conviction. Velcofski’s complete driving record was seven pages in length and listed twenty-one convictions, including five DUI convictions and six convictions for driving while license suspended, revoked, or canceled. Twelve conviction dates were subsequent to the June 5, 2009 incident. Additionally, the driving record showed that based on these later convictions, Velcofski was designated a habitual traffic offender. Although the refusal to submit count had been severed and was not before the jury, the driving record referenced an eighteen-month suspension for Velcofski’s refusal to submit to a breath test on June 5, 2009. The complete driving record also contained thirty-seven entries indicating that Velcof-ski’s driving privilege was suspended indefinitely for conduct such as failing to appear on traffic summonses and failing to pay traffic fines. Thirteen of these entries were dated after June 5, 2009.

The defense moved to redact references to the prior convictions and to the indefinite suspensions for failing to appear on traffic summonses and failing to pay fines. Defense counsel proposed that the jury be shown the revocations and dates of notification without reference to the underlying convictions. Velcofski was also willing to stipulate that his driving privilege had been permanently revoked in 2003 and 2006. Prior to trial, the state had prepared a redacted record, but defense counsel argued that the state’s version also excluded portions that supported Velcof-ski’s claim that he had taken steps toward gaining limited driving privileges. The trial court ultimately denied Velcofski’s motion in limine and ruled that the complete, unredacted driving record would be submitted to the jury.

Velcofski testified on his own behalf. He admitted he knew his driving privilege had been permanently revoked in 2008 and 2006, but claimed that he believed that his driving privilege had been reinstated subsequent to the last permanent revocation. Velcofski sought to testify as to what other people, including officials at the Department of Highway Safety and Motor Vehicles, told him about restoring his driving privilege. The trial court, however, sustained the state’s hearsay objection to this testimony.

The jury found Velcofski guilty as charged for driving while license permanently revoked and the trial court sentenced him to five years in prison. Velcof-ski now appeals his conviction arguing that the trial court committed reversible error in denying his motion to redact significant portions of his driving record because the probative value of the complete driving record was substantially outweighed by the danger of unfair prejudice. See § 90.403, Fla. Stat. (2009). We agree.

“Where a trial court has weighed probative value against prejudicial impact before reaching its decision to admit or exclude evidence, an appellate court will not overturn that decision absent a clear abuse of discretion.” Johnson v. State, 40 So.3d 883, 886 (Fla. 4th DCA 2010) (citation and quotation marks omitted). In determining whether the probative value of the evidence is substantially outweighed by its prejudicial effect, the trial court should “consider the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction.” Id. (quoting Taylor v. State, 855 So.2d 1, 22 (Fla.2003)).

The state sought to introduce Vel-cofski’s complete driving record into evidence to show that Velcofski’s driving privilege was permanently revoked and that Velcofski knew that the privilege was revoked when he drove on June 5, 2009. The state did not need this evidence to prove that Velcofski’s driving privilege was permanently revoked because Velcofski stipulated that his privilege had been permanently revoked in 2003 and 2006. The trial court, however, found that Velcofski’s complete driving record was relevant not to show that his driving privilege had been permanently revoked, but to rebut Velcof-ski’s defense that he believed his driving privilege had been subsequently reinstated.

While Velcofski’s complete, unredacted driving record may have had some probative value to counter Velcofski’s defense, this probative value was outweighed by the danger of unfair prejudice. Indeed the jury would undoubtedly consider Velcof-ski’s extensive list of convictions and other traffic infractions as evidence of Velcofski’s bad character and as proof that Velcofski had a propensity to commit the crime charged. See § 90.404, Fla. Stat. (2009) (“Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion....”).

The state contends that even if the admission of this testimony was error, it was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). However, the state cannot prove “that there is no reasonable possibility that the error contributed to the conviction.” Id. “Here, the state starts out with an even more arduous burden because the erroneous admission of collateral crimes evidence is presumptively harmful. This is because evidence that suggests a defendant has committed other crimes or bad acts can have a powerful effect on the results at trial.” Ward v. State, 59 So.3d 1220, 1224 (Fla. 4th DCA 2011) (citation, quotation marks, and alterations omitted). Additionally, the jury’s verdict rested largely upon weighing the credibility of Velcofski’s testimony that he believed his driving privilege had been reinstated subsequent to the 2006 permanent revocation.

The other evidence that Velcofski sought to have excluded was a written plea agreement from Velcofski’s 2003 DUI conviction as well as the accompanying plea form acknowledging his rights. We conclude that the trial court properly exercised its discretion in admitting that evidence. While the probative value of this evidence may have been minimal, so was any danger of unfair prejudice because the portions of the documents which had the potential of being unfairly prejudicial—including the charges to which Velcofski entered pleas—were properly redacted.

In summary, given the inflammatory extensiveness of Velcofski’s seven-page complete driving record, we find that the trial court abused its discretion by failing to redact significant portions of the record on the basis that the potential for unfair prejudice substantially outweighed its probative value. As this error was not harmless, we reverse Velcofski’s conviction and remand for further proceedings.

In the event this case is retried, we briefly address Velcofski’s second point on appeal concerning the trial court’s decision to sustain the state’s hearsay objection to Velcofski’s testimony as to what government officials allegedly told him regarding reinstatement of his driving privilege. Velcofski’s proffered testimony did not fall within the statutory definition of hearsay because it was not being offered for the truth of the matter asserted but to show that Velcofski had a good-faith belief that his driving privilege had been reinstated. See § 90.801(l)(c), Fla. Stat. (2009) (defining hearsay as an out-of-court statement “offered in evidence to prove the truth of the matter asserted”); Penalver v. State, 926 So.2d 1118, 1132 (Fla.2006) (“[I]f the statement is offered for some purpose other than its truth, the statement is not hearsay and is generally admissible if relevant to a material issue in the case.”). As Velcofski’s proffered testimony was not hearsay and was relevant to Velcofski’s only defense, the trial court should not have excluded it.

Reversed and remanded.

GERBER and LEVINE, JJ., concur.


text:
    Heather REFFAIE, Appellant, v. WAL-MART STORES, INC., Appellee.
    No. 4D10-2494.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Marlene S. Reiss of the Law Offices of Marlene S. Reiss, Esq., P.A., Miami, for appellant.
    Philip J. Kantor and David Tarlow of Quintairos, Prieto, Wood & Boyer, P.A., Fort Lauderdale, for appellee.
   STEVENSON, J.

Appellant, Heather Reffaie, challenges the trial court’s final judgment, which found her eighty percent comparatively negligent for her slip and fall at a Wal-Mart store, and the trial court’s denial of her motion for new trial. Appellee, Wal-Mart, cross appeals, arguing that its proposal for settlement, deemed invalid by the trial court, was clear and definite and strictly complied with the rules of civil procedure. We reverse the appeal in part and order a new trial on damages; we affirm the cross-appeal. We write to briefly discuss our agreement with appellant’s claims that defense counsel’s improper closing argument concerning the treating physician’s unsubstantiated business relationship with personal injury lawyers and their clients amounted to reversible error.

Upon entering a Wal-Mart, appellant slipped and fell. Appellant alleged there was a slippery substance on the floor and that she sustained injuries requiring neck and shoulder surgeries. Wal-Mart alleged that appellant was comparatively negligent. The jury returned a verdict finding that Wal-Mart was negligent and its negligence resulted in injuries to appellant. In its application of the doctrine of comparative negligence, the jury found that Wal-Mart was twenty percent negligent, while appellant was eighty percent negligent. The jury awarded appellant $49,158 for medical expenses and $50,000 for past pain and suffering, equaling an award of $99,158. Twenty percent of that total— the award to which appellant was entitled based on the jury’s finding of comparative negligence — equaled $19,800. After the verdict was read, appellant moved for a new trial, which motion was denied.

During cross-examination, defense counsel engaged appellant’s expert witness and treating neurologist, Dr. Gomez, in a line of questioning related to his relationships with personal injury law firms.

[Defense Counsel]. Now, you have existing business relationships with certain personal injury lawyers, specifically Kanner & Pintaluga, where they refer you clients throughout the State of Florida, don’t they?
[Dr. Gomez]. Again, what do you mean by “business relationship”?
[Defense Counsel]. I mean, they sign up a client and bus them to your office, ... for you to treat them and eventually come to a court of law, and that’s your relationship with at least one personal injury law firm, correct?
[Dr. Gomez]. That is not true.

Although there was some back and forth between defense counsel and Dr. Gomez after the preceding questioning, Dr. Gomez never admitted that any part of the statement was true.

At another point, the following exchange took place:

[Defense counsel]. Is it your testimony under oath that you are currently unaware of, let’s say, at least five, as much as ten, personal injury plaintiffs being placed in a van, being driven ... to your office in West Palm Beach for you to perform percutaneous discectomies and driven back for the purposes of litigation?
[Dr. Gomez]. That was brought up in a deposition, which I was not aware of, their form of transportation.
[Defense counsel]. I don’t even know what you’re talking about because I don’t have that deposition, but I assume that I am accurate, correct?
[Dr. Gomez]. I’m not sure you’re accurate because I don’t know that to be fact.

Defense counsel also inquired about Dr. Gomez’s financial compensation from the attorneys based on referrals. Dr. Gomez replied that he receives payment from patients for the treatment he provides and did not admit to receiving any payment from the law firms. Appellant’s counsel objected to this line of questioning for relevancy. The trial court overruled the objection.

In closing argument, with respect to Dr. Gomez, defense counsel argued in pertinent part:

Then comes Dr. Gomez. Now, Dr. Gomez, what he does is he has existing relationships with personal injury law firms. They sign them up and bus them over.
.... [At this point, there was an objection by appellant’s counsel for facts not in evidence. The trial court overruled the objection and instructed the jury to rely on its own memory of the evidence.]
I had the whole conversation. At least five, maybe as many as ten, get down to your office, you do a procedure, a five-minute procedure. After all of them you bus them right back up for the purposes of litigation. He took umbrage with the word “transport” or “bus”, (emphasis added).

An appellate court reviews a trial court’s ruling on motions for mistrial and new trial for abuse of discretion. Abbott v. Dorleans, 41 So.3d 984, 986 (Fla. 4th DCA 2010); Veltre v. State, 957 So.2d 47, 50 (Fla. 4th DCA 2007). This court has explained that “ ‘[t]he legal standard for trial courts to use in deciding motions for new trial based upon counsel’s improper argument is whether the commentary was highly prejudicial and inflammatory.’ ” Grushoff v. Denny’s, Inc., 693 So.2d 1068, 1069 (Fla. 4th DCA 1997) (citation omitted). Here, the remarks were objected to at trial; thus, the issue was preserved for review. Further, the standard is whether the remarks were egregious enough to be considered harmful error. See, e.g., Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1029 (Fla.2000); Tanner v. Beck ex rel. Hagerty, 907 So.2d 1190, 1197 (Fla. 3d DCA 2005).

To determine whether an error is harmful, the appellate court must examine the entire record. Special v. Baux, 79 So.3d 755, 771 (Fla. 4th DCA 2011), review granted sub norm. Special v. W. Boca Med. Ctr., 90 So.3d 273 (Fla.2012). “The focus of the analysis is to evaluate the effect of the error on the trier of fact to determine whether or not the error contributed to the judgment.” Id. Simply stated, the practical lesson from Special on harmless error is that:

[H]armless error occurs in a civil case when it is more likely than not that the error did not contribute to the judgment. To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict.

Id. Under the harmless error analysis discussed in Special, the appellate court does not review the entire record to determine if a critical mass of evidence exists to support the verdict despite the error. Rather, in reviewing the record, Special commands that the appellate court’s gaze remain fixed upon the error itself so as to evaluate whether the beneficiary of the error has shown that, more likely than not, the error did not influence the trier of fact and thereby contribute to the verdict. Id. at 766 (noting that “[a]n ‘effect on the fact finder’ test asks the appellate judge to look closely at the error and estimate its effect on the trier of fact”) (citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986)).

Here, appellant correctly argues that there was no evidence to support defense counsel’s argument in closing that law firms transported their clients to Dr. Gomez en mass, or that Dr. Gomez had any “business relationships” with personal injury law firms. At one point, defense counsel even suggested that it was Dr. Gomez who bused the clients “right back up for the purposes of litigation.” We agree that the improper comments at issue were intended to, and did, impugn the doctor’s credibility and objectivity in the eyes of the jurors. While we have little issue with the line of questioning, the problem here is that defense counsel did not obtain the desired answers but continued in closing argument as though he had.

It is the appellee’s burden, Wal-Mart in this case, to show that the statements in closing argument, more likely than not, did not influence the jury’s verdict. As appellant argued in her supplemental brief, “Wal-Mart painted a picture of an assembly-line surgeon, whose medical practice is fueled by personal injury litigation,” notwithstanding that defense counsel never got Dr. Gomez to admit those insinuations nor presented any independent evidence of their truthfulness.

After a review of the entire record, we cannot conclude that Wal-Mart has shown that the improper comments, more likely than not, did not contribute to the verdict. While in no means dispositive, we note that despite medical bills in the amount of $150,000, the jury awarded only $49,158 for medical expenses. We therefore conclude that the trial court abused its discretion in denying appellant’s motion for new trial. From our review of the record, we are also confident that the effect of the improper comments was limited to damages.

Accordingly, we reverse and remand for a new trial on damages only. In all other respects, the appeal and cross-appeal are affirmed.

Affirmed in part, reversed in part, and remanded.

TAYLOR and HAZOURI, JJ., concur.