text:
    K.M.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2645.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Rehearing Denied Oct. 4, 2011.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

K.M.B., a child, appeals the final judgment of delinquency, finding him guilty of resisting arrest without violence and trespass after warning. The trial court withheld adjudication, gave K.M.B. a stern judicial warning, and required him to complete twenty-five hours of community service and an online anger management course. We reverse the withhold of adjudication as to the trespass but affirm as to the resisting arrest without violence.

K.M.B. was charged by way of juvenile petition with resisting arrest without violence and trespass after warning. At trial, Donald Massey, the director of security for Sawgrass Mills Mall, testified that the Mall hires off-duty police officers to enforce the Mali’s trespass program. Massey testified that at 10:15 p.m., in the Oasis (a patio section of the Mall), security does a sweep of all juveniles who are unaccompanied by a parent; a juvenile will be asked to leave the property if he or she is unaccompanied by a parent or if the juvenile breaks a rule of the code of conduct, such as causing a commotion/disturbance or swearing. If the juvenile refuses to leave, it is considered a trespass because the juvenile has been directed to leave the property.

Massey further testified that on the night of March 27, 2010, he and Officer Pullease approached Massey’s staff, which had made contact with K.M.B., to ask K.M.B. if he had a movie ticket. Massey saw a commotion and approached; at this point, Pullease made contact with K.M.B. and was in the process of gathering K.M.B.’s information in an attempt to have him “trespassed.” Pullease asked K.M.B. for his name twice; K.M.B. responded both times with, “F— you.” At this point, Pullease went to arrest K.M.B. because he wouldn’t cooperate. As Pul-lease tried to arrest him, K.M.B. grabbed a hand rail; Pullease could not get his handcuffs on K.M.B. or get KM.B.’s hands behind his back. Pullease then placed K.M.B. in a headlock and took him to the ground. Eventually one of the security officers was able to handcuff K.M.B. K.M.B. was then arrested and removed from the property. Massey stated that the only problem was that K.M.B. failed to leave the premises after he was asked for his ticket.

Officer Pullease testified that when he responded to the disturbance, he observed K.M.B. having a verbal altercation with a security guard; K.M.B. was shouting obscenities. After Pullease approached, he tried to get KM.B.’s information, but K.M.B. told Pullease: “f— you, cracker.” At this point, based on what Pullease saw, he told K.M.B. that he was under arrest. Pullease did not tell K.M.B. why he was under arrest; however, Pullease testified that it was his intention to arrest him for disorderly conduct. Pullease testified that he never got to the point of mentioning anything to K.M.B. about trespassing, nor did he specifically tell K.M.B. to leave the property. Once K.M.B. said “f— you, cracker,” Pullease placed him under arrest.

After the State rested, K.M.B. moved for a judgment of dismissal, arguing that K.M.B. was not arrested for trespass, and that the officer gave no testimony as to a trespass after warning; instead, he was arrested for disorderly conduct, something with which he was not charged. The trial court denied the motion. K.M.B. rested and again- moved for a judgment of dismissal. The trial court again denied the motion and found K.M.B. guilty on both counts. The trial court withheld adjudication, gave K.M.B. a stern judicial warning and required him to complete twenty-five hours of community service and an online anger management course. This appeal followed.

On appeal, K.M.B. argues that because the officer did not warn him that he was trespassing, or ask him to leave, the trial court erred in denying K.M.B.’s motion for judgment of dismissal as to the trespassing charge. The standard of review of a motion for judgment of dismissal is the same standard we apply to review a judgment of acquittal — de novo. R.H. v. State, 56 So.3d 156, 157 (Fla. 4th DCA 2011) (citing J.P. v. State, 855 So.2d 1262, 1264, n. 1 (Fla. 4th DCA 2008); Jones v. State, 869 So.2d 1240, 1242 (Fla. 4th DCA 2004)). “If the evidence, taken in a light most favorable to the state does not support a conviction, the motion must be granted. If the state establishes the existence of each element of the crime charged, then the motion must be denied.” T.L.T. v. State, 53 So.3d 1100, 1102 (Fla. 4th DCA 2011).

Section 810.09, Florida Statutes (2009), provides:

(l)(a) A person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance:
1. As to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in s. 810.011 ... commits the offense of trespass on property other than a structure or conveyance.

“Thus, to convict for violating this statute, the State must prove four elements: (1) the defendant willfully entered or remained on property; (2) other than a structure or conveyance; (3) without being authorized, licensed, or invited; (4) when notice against entering or remaining had been given to the defendant.” Seago v. State, 768 So.2d 498, 500 (Fla. 2d DCA 2000) (citing A.L. v. State, 675 So.2d 703, 704 (Fla. 3d DCA 1996)).

When an invitation has been extended to enter an open business, actual communication is necessary to put a person on notice that he is no longer welcome on the property and may be arrested for trespass. Smith v. State, 778 So.2d 329, 331 (Fla. 2d DCA 2000). In Smith, the Second District held that because Smith “had been invited on the ‘quasi-public’ property[] and had no notice that he was not permitted to remain [,][t]he arrest for trespassing was illegal.... ” Id. (emphasis added). See also Powell v. State, 958 So.2d 1012, 1014 (Fla. 4th DCA 2007) (finding Smith distinguishable because here, the defendant knew he was not permitted to be on the property by actual notice provided by the store owner and by a “No Trespass” sign).

The petition for delinquency in this case alleges the following as to the trespass after warning count:

COUNT II: K.M.B. ... did, without being authorized, licensed, or invited, willfully enter upon or remain in a property other than a structure or conveyance ... as to which prior notice against entering or remaining was given by actual communication ... by the owner of the said premises or by an authorized person, to-wit: OFFICER C. PULLEASE, contrary to F.S. 810.09, FIRST DEGREE MISDEMEANOR, TRESPASS AFTER WARNING. [Emphasis added].

We hold the trial court erred in denying K.M.B .’s motion for judgment of dismissal as to the trespass charge. Although Massey testified that he witnessed Pullease ask K.M.B. to leave, this testimony was contradicted by Pullease, himself, who admitted that he never actually communicated to K.M.B. that he was to leave. Thus, Pullease never warned K.M.B. pursuant to section 810.09. Pullease testified that it was only after witnessing KM.B.’s behavior and hearing the “f— you, cracker” remark, which to him evidenced a disruption of the peace, that he arrested K.M.B. Although Pullease did not tell K.M.B. why he was under arrest, he testified that it was his intention to arrest him for disorderly conduct. The charge in this case is trespass after warning. As Pul-lease testified at trial that no warning was given, the State failed to establish a violation of section 810.09. As such, the court’s finding was not supported by competent substantial evidence. Thus, it was error for the trial court to deny K.M.B.’s motion for judgment of dismissal as to the trespass after warning charge. However, we affirm the withhold of adjudication as to the resisting arrest without violence charge because K.M.B. did not argue for reversal of this charge in this appeal.

Reversed in part; Affirmed in part.

WARNER and LEVINE, JJ., concur.

      . The Mall is private property with an open invitation to the public.

      . Massey testified that if a child purchases a movie ticket and enters the theater prior to 10:30 p.m., he has an invitation to be there until the movie ends. The incident in question occurred around 10:15 or 10:20 p.m. Massey also testified that the code of conduct applies to juvenile purchases of movie tickets; once a ticket is bought, the juvenile needs to enter the movie theater — a juvenile cannot be in the common area of the Mall at that point.

      .The term "trespassed” has been used by the Second and Fifth Districts. See Morfit v. Univ. of S. Fla., 794 So.2d 655 (Fla. 2d DCA 2001); Augustus v. State, 773 So.2d 104, 105 (Fla. 5th DCA 2000).

      . We find that Officer Pullease did not have probable cause to arrest K.M.B. for disorderly conduct. See State v. Saunders, 339 So.2d 641, 644 (Fla. 1976) (limiting the application of section 877.03, Florida Statutes, and applying it only to either words which by their very utterance inflict injury or tend to incite an immediate breach of the peace, or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others) (internal citations omitted); W.L. v. State, 769 So.2d 1132 (Fla. 3d DCA 2000) (holding that where the juvenile yelled profanities at the officers, which did not incite a breach of the peace, the words were "pure speech,” protected by the First Amendment, which could not constitute disorderly conduct). Thus, mere cursing at an officer is insufficient to form probable cause for an arrest for disorderly conduct. However, as this point was not raised by K.M.B. on appeal, we affirm the withhold of adjudication as to the resisting arrest without violence charge.

      . The trial court never made a specific finding regarding whether or not K.M.B. was asked or told to leave or as to who actually communicated the notice or warning to him. The court only stated that it "did not have any reasonable doubt that the State was able to prove its case”; "the mall acted reasonably under the circumstances”; and that "they’re within their legal rights to ask you to leave or to act in a certain way while you’re there.”

      . A privately-owned convenience store, operated for monetary gain but open to the public. Id. at 330.

      . Massey also testified that "his staff” asked K.M.B. to leave after he was asked for his movie ticket; however, he never testified as to who specifically told him this or when he was told this. In light of the fact that Pullease admitted he did not tell K.M.B. to leave, after Massey testified that he heard Pullease tell K.M.B. to leave, Massey’s testimony regarding what "his staff” said is neither competent nor substantial evidence sufficient to establish an element of the State's case. Further, the petition for delinquency clearly states that it was Pullease (not "staff”) who gave actual communication against remaining on the premises to K.M.B. Because Pullease admitted at trial that this was not true, it is clear that notice was not given.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Emerson DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4823.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Rehearing Denied Oct. 4, 2011.
    Karen Lowell of Law Offices of Karen Lowell, Davie, and Gerald Shelton Williams of Nichols, Williams & Julian, P.A., Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d 2011); Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Alex WHALEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-902.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2011.
    Rehearing Denied Sept. 15, 2011.
    Alex R. Whaley, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Knight v. State, 6 So.3d 733 (Fla. 2d DCA 2009); Lindsay v. State, 1 So.3d 270 (Fla. 1st DCA 2009), review denied, 6 So.3d 52 (Fla.2009).

SAWAYA, PALMER and EVANDER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Norman BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4667.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Rehearing Denied Oct. 4, 2011.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Appellant, Norman Brown, appeals his judgments and sentences for first-degree murder, attempted armed robbery, aggravated fleeing or eluding a law enforcement officer and resisting an officer without violence. Appellant argues that the trial court abused its discretion in admitting testimony from a third party who testified to statements made by a co-defendant describing Appellant’s participation in the murders and attempted robbery. Appellant also contends that his trial counsel was ineffective for failing to make the proper objections to this testimony. Finding no reversible error, we affirm Appellant’s convictions and sentences.

The evidence adduced at trial established that Appellant and two other individuals attempted to rob three victims. During the course of the robbery, two of the victims were shot and killed. Appellant’s DNA evidence was found at the murder scene. Outside the presence of the jury, and in anticipation of Appellant’s objection, the State proffered the testimony of Miller’s friend. Miller’s friend was party to a conversation in which Miller implicated himself as well as Appellant and Chestnut in the crimes. During the State’s proffer, Miller’s friend testified that the conversation with Miller took place in the neighborhood in which they lived. He went on to state that during the conversation, Miller pointed out a photograph appearing in the newspaper discussing Appellant’s arrest, and explained that he, along with Appellant and Chestnut, went to rob “some Mexicans” on a Friday because it was “payday.” During the robbery, Miller and Appellant shot and killed two of the victims because they did not do as they were told.

Citing to Machado v. State, 787 So.2d 112 (Fla. 4th DCA 2001), the State argued that Miller’s statements were admissible as an exception to the hearsay rule because Miller made the statements against his penal interest under corroborating circumstances indicating their trustworthiness. To establish the trustworthiness of the statements, the State cited to the fact that Miller’s statements to the witness were made in a social setting, not in a police environment, and implicated Miller as well as Appellant and Chestnut. Finally, the State argued that allowing the testimony would not violate Appellant’s Sixth Amendment right of confrontation under Crawford, because Miller’s statements were not “testimonial” hearsay as that term has been defined.

In response, Appellant argued that the statements were not trustworthy or reliable because certain evidence was inconsistent with Miller’s statements. The inconsistencies included that Miller stated he killed one person and Appellant killed another, but the evidence showed that one gun killed both individuals; furthermore, the statements of Miller’s friend did not indicate that Appellant had suffered injuries during the incident, which was contrary to Appellant’s testimony that he suffered a cut and contrary to the evidence of his blood gathered from the scene of the crime. Over Appellant’s objection, the trial court ruled that the statements met the guidelines set forth in Machado, concluding that there were “particularized guarantees of trustworthiness” based on the language used by Miller and the setting in which the statements were made. The trial court also found the statements admissible under section 90.803(18)(e), Florida Statutes (2009), which allows hearsay statements by co-conspirators in furtherance of the conspiracy. After its ruling, the witness was allowed to testify before the jury about what Miller told him.

On appeal, Appellant argues that Miller’s statements to his friend were testimonial in nature and fell within the Crawford purview because they were “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” Crawford v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Appellant points out that an objective witness, in Miller’s position, would reasonably believe a double murder confession to a non-privileged listener, without a confidentiality agreement, would later be used in trial. Therefore, Appellant contends that the trial court erred in concluding Crawford was inapplicable, and asserts that Appellant’s confrontation right was violated by the admission of the third party’s testimony relating Miller’s statements.

In Crawford, the Supreme Court held that the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. Id. at 53-54, 124 S.Ct. 1354. The Court emphasized that' if “testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at 68, 124 S.Ct. 1354. “Only [testimonial statements] cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id.

The Supreme Court identified “[v]arious formulations” of the core class of “ ‘testimonial’ ” statements; among these are:

ex parte in-court testimony or its functional equivalent-that is, materials such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecuto-rially, extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions, statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, ... [and] [statements taken by police officers in the course of interrogations.

Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (internal citations and quotations omitted). At a minimum, statements are testimonial if the declarant made them “at a preliminary hearing, before a grand jury, or at a former trial; and [during] police interrogations.” Id. at 68, 124 S.Ct. 1354.

When a statement is not testimonial it “is not subject to the Confrontation Clause.” State v. Contreras, 979 So.2d 896, 903 (Fla.2008). Most courts agree that a spontaneous statement to a friend or family member is not likely to be testimonial under Crawford. See Franklin v. State, 965 So.2d 79, 91 (Fla.2007) (collecting cases and holding that a victim’s statements to a friend and co-worker immediately after being shot were nontesti-monial). That is precisely what occurred in this case. Accordingly, we hold that Miller’s statements to his friend were not testimonial in nature, and, therefore, no violation of the Confrontation Clause occurred by their admission through Miller’s friend.

With respect to the alleged Crawford violation, Appellant argues that this case is consistent with Looney v. State, 803 So.2d 656, 671 (Fla.2001), wherein the trial court allowed an inmate to testify about the hearsay statement of a non-testifying co-defendant, which incriminated Looney at their joint trial. The Florida Supreme Court determined that although a violation had occurred, the error was harmless based on the direct testimony and corroborating evidence presented at trial as to Looney’s involvement in the murder. Id. at 672. Looney relied on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which held that a defendant’s Confrontation Clause rights are violated where the out-of-court inculpatory statements of a co-defendant are admitted at a joint trial. Id. at 137, 88 S.Ct. 1620 (emphasis added). We reject this argument because Looney was decided on other grounds prior to Crawford, and, thus, did not address the dispositive issue here regarding whether the statements were' testimonial in nature subjecting them to the Confrontation Clause.

Appellant next argues that Miller’s statements were not admissible under section 90.804(2)(c), Florida Statutes (2009) as statements against interest, and contends that this case is distinguishable from Ma-chado. We disagree.

In Machado, we held that “[a] non-testifying accomplice’s statement against penal interest is admissible as a hearsay exception if corroborating circumstances show the statement has ‘particularized guarantees of trustworthiness.’ ” 787 So.2d at 114 (quoting Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999)). When determining whether the statement contains “particularized guarantees of trustworthiness,” courts should look to the surrounding circumstances, including the language used by the accomplice and the setting in which the statements were made. See Lilly, 527 U.S. at 139, 119 S.Ct. 1887. Miller’s statements were voluntarily made, without intending to shift blame, in a personal setting, to a friend. Moreover, Miller implicated himself as well as Appellant, and provided details of the crime which were consistent with the other evidence in the case. These facts included the number of victims and their ethnicity, Appellant’s nickname, the day of the week the crime took place, the manner of death, and the particular conduct resulting in the deaths. As such, we hold that the trial court properly admitted Miller’s statements.

Defendant’s reliance on Brooks v. State, 787 So.2d 765, 775 (Fla.2001) is misplaced. In Brooks, the trial court allowed the admission of a co-defendant’s statements to an investigator prior to his arrest under the hearsay exception “statement against interest” pursuant to section 90.804(2)(c). Id. at 774. The supreme court reversed, on this and other grounds, holding that while co-defendant’s statements were self-inculpatory when considered on their own, when viewed as a whole and under the investigatory circumstances in which they were made, were predominantly self-serving in attempting to shift blame, thus lacking the necessary “‘guarantees of trustworthiness.’ ” Id. at 777. We hold that Brooks is factually distinguishable from the instant case. More to the point, like Machado, the corroborating circumstances surrounding Miller’s statements show his statements had “ ‘particularized guarantees of trustworthiness.’” 787 So.2d at 113 (quoting Lilly, 527 U.S. at 136-37, 119 S.Ct. 1887).

Lastly, Appellant argues that to the extent his attorney failed to make the proper objections to the admission of the statements under Crawford or sections 90.804(2)(c) and 90.803(18)(e), his attorney’s performance was deficient, and this deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (explaining that ineffective assistance of counsel is found when counsel’s performance falls below an objective standard of reasonableness and when there is a reasonable probability that the results of the proceeding would have been different but for the inadequate performance). Because we find that no Crawford violation occurred and that trial counsel’s objections properly preserved Appellant’s section 90.804(2)(c) argument for appellate purposes, trial counsel’s performance was not deficient on those grounds. Furthermore, because we conclude that the trial court properly admitted the statements under section 90.804(2)(c), and properly found the statements trustworthy and reliable pursuant to Machado, Appellant cannot show prejudice under Strickland in regards to counsel’s failure to object based upon the trial court’s sua sponte ruling that the statements were also admissible under section 90.803(18)(e).

Affirmed.

CIKLIN and LEVINE, JJ., concur.

      . The incident leading to charges of first-degree murder and attempted armed robbery occurred on May 19, 2006. The other charges arose from the police’s attempt to execute an arrest warrant for the Appellant on June 23, 2006.

      . The two other individuals were co-defendants Kevin D. Miller and Donny Chestnut. Their cases were severed.

      . "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const, amend. VI.

      . Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . This argument does not correspond with the evidence at trial. The firearms examiner in this case testified that based on her investigation she could not exclude another firearm.

      . Because we conclude that the trial court did not err in admitting Miller's statements under the statement against interest hearsay exception and Machado, we decline to address the propriety of the trial court's sua sponte ruling that the statements were also admissible under section 90.803(18)(e).


text:
    John DADDONO and Fred Burdett on behalf of Forte Equity, Inc., Appellants, v. Domenic MIELE and Forte Equity, Inc., Appellees.
    Nos. 4D10-19, 4D10-534.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 2011.
    Rehearing Denied Oct. 4, 2011.

      John S. Penton, Jr., of Cole, Scott & Kissane, P.A., West Palm Beach, for appellant, Fred Burdett on behalf of Forte Equity, Inc.
    Edward Campbell of James R. Merola, P.A., Palm Beach Gardens, for appellee, Domenic Miele.
   DAMOORGIAN, J.

This appeal arises out of a jury award in favor of Fred Burdett on behalf of Forte Equity, Inc. (“Forte”) and against Domenic Miele on Forte’s claim for breach of fiduciary duty. Miele sought and was awarded a set-off against the amount of damages suffered by Forte. After the trial, the trial court awarded Miele prejudgment interest on the full set-off amount and awarded Forte its attorney’s fees. Forte appeals the trial court’s award of prejudgment interest and Miele cross-appeals the attorney’s fee award in favor of Forte. We reverse the trial court’s award of prejudgment interest on the full set-off amount and affirm Forte’s attorney’s fee award.

In the underlying case, Daddono and Burdett, on behalf of Forte, filed a multi-count complaint against Miele for breach of fiduciary duty, declaratory relief determining the relative shareholder interests of Miele and the plaintiffs, and an action for accounting, requesting the court to require Forte “to provide a full accounting” of the corporation. Daddono and Burdett alleged that they were shareholders of Forte, that Miele, as president of Forte, had sold the property that was the sole asset of the corporation without their consent or knowledge, and that some of the proceeds of the sale were taken for Miele’s own use and benefit. In response to the complaint, Miele pleaded as an affirmative defense that he was entitled to a set-off against Forte’s claim for unpaid salary, as well as loans and capital contributions he made to Forte. Before trial commenced, the trial court determined Daddono was not a shareholder of Forte and granted summary judgment in favor of Miele as to Daddono’s claims.

Burdett’s case proceeded to a jury trial on the breach of fiduciary duty shareholder derivative count, after which the jury found that (1) Burdett was a fifty-percent shareholder; (2) Miele had breached his fiduciary duty to the corporation causing damages of $528,745.00; and (3) Miele was entitled to a set-off in the amount $231,840.00 against the $528,745.00. With respect to the set-off, the jury was not asked to delineate what, if any, amounts represented salary, loans, or capital contributions.

Post-trial, Miele sought and was granted prejudgment interest on the set-off amount representing salary owed to him. This was followed by the entry of an agreed order appointing an accountant to conduct an audit for purposes of determining, among other things, what amount of the $231,840.00 set-off represented salary owed to Miele. It was on this amount that the court would then compute the prejudgment interest due to Miele. Between the appointment of the accountant and the completion of the audit, a new trial judge was assigned the case. Upon completion of the audit, the accountant concluded that although the jury had found that $231,840.00 should be set-off against the verdict, the actual amount Forte owed Miele was $172,440.00, of which $131,914.82 represented unpaid salary.

The successor trial judge determined that his predecessor did not intend to ignore the jury’s verdict and awarded prejudgment interest on the entire amount of the set-off contained in the verdict. The court found that Miele was entitled to prejudgment interest of $182,574.00 increasing the total set-off figure to $414,414.00. This appeal follows.

Burdett, on behalf of Forte, argues that the successor judge misinterpreted the original trial judge’s order and improperly awarded prejudgment interest on those amounts which were not salary. Miele cross-appeals arguing that the trial court erred in granting Burdett attorney’s fees for the time Burdett’s attorney spent prosecuting the declaratory relief action.

After the jury trial, Miele specifically requested by motion an order “granting prejudgment interest on the salary awarded by the jury.” Miele’s motion did not request prejudgment interest on any other amount and we find no support in the record that the predecessor judge granted prejudgment interest on anything other than the salary owed to Miele. Moreover, while the order on Miele’s motion simply identifies the motion as being “granted,” we have the benefit of the successor judge’s recitation of his predecessor’s comments at the hearing on the motion for prejudgment interest:

[Bjecause Defendant’s Miele’s motion [for] prejudgment interest on the salary is granted, the court finds that the salary was liquidated amount, although there was a determination to be made as to [the] time period for which that amount was going to cover. The salary, nonetheless, was covered by an agreement. It’s rate was fixed and, therefore, was liquidated.

We take this comment to mean that the predecessor judge intended to award prejudgment interest only on that amount of the set-off which represented salary owed to Miele. Furthermore, the judge’s comment would explain why the parties stipulated to the accounting and that one of the purposes for the accounting was to determine what amount of the total set-off, as found by the jury, represented salary owed to Miele.

Miele counters that the “accounting” was not simply a hearing to determine prejudgment interest on the amount he was owed for salary. Rather, it was pursuant to an “action for accounting,” which gave the trial court broad discretion to evaluate all monies owed and due between Miele and Forte, and to settle the accounts between them. See generally Heritage Paper Co. v. Farah, 440 So.2d 389, 391 n. 2 (Fla. 1st DCA 1983) (discussing the procedure involved in an “action for accounting”); A-1 Truck Rentals, Inc. v. Vilberg, 222 So.2d 442, 444 (Fla. 3d DCA 1969) (same); F.A. Chastain Constr., Inc. v. Pratt, 146 So.2d 910, 913 (Fla. 3d DCA 1962) (same).

We find no support for this argument in the record. Miele’s motion was specific in its request, seeking prejudgment interest only on the salary amount. The predecessor judge was equally specific that the scope of the accounting would include a determination of the amount of salary owed Miele, and that prejudgment interest would be awarded only on the amount of salary owed. Finally, the parties agreed to the scope of the accounting and tried this issue by consent. Cf. Brewer v. Clerk of Cir. Ct., Gadsden County, 720 So.2d 602, 604 (Fla. 1st DCA 1998) (finding dismissal for failure to comply with the statutory prerequisite proper where appellant agreed that the circuit court should decide that issue, and, thus, the court did not err in doing so). Based upon the foregoing, we hold that the trial court erred by awarding prejudgment interest on the entire amount of the set-off instead of basing the award only on the amount of salary owed Miele.

Finally, Miele cross-appeals the attorney’s fee award to Burdett as the prevailing party. The trial court granted Burdett all of his fees on his claims for breach of fiduciary duty, declaratory relief, and accounting. Miele argues that while Burdett is entitled to attorney’s fees on his derivative action for breach of fiduciary duty under section 607.07401, Florida Statutes (2004), he is not be entitled to fees on his remaining claims.

Determination of attorney’s fees is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002). However, the determination of whether multiple claims within a lawsuit are separate and distinct is a matter of law to be reviewed de novo. Id. (citing Gibbs Constr. Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000)). The party seeking attorney’s fees bears “ ‘an affirmative burden to demonstrate what portion of the effort was expended on the claim which allowed attorney’s fees[.]’ ” Ocean Club Cmty. Ass’n v. Curtis, 935 So.2d 513, 517 (Fla. 3d DCA 2006) (quoting Rockledge Mall Assocs., Ltd. v. Custom Fences of Brevard, Inc., 779 So.2d 558, 559 (Fla. 5th DCA 2001)).

In actions for declaratory relief, Chapter 86, Florida Statutes provides for the provision of costs, but not attorney’s fees, in the case of a declaratory action. § 86.081, Fla. Stat. (2004); Suwannee Cnty. v. Garrison, 417 So.2d 1070, 1071 (Fla. 1st DCA 1982) (“Section 86.081, providing specifically for the award of costs, makes no provision for, and cannot be expanded to include, attorney’s fees.”) (citing Harris v. Richard N. Groves Realty, Inc., 315 So.2d 528 (Fla. 4th DCA 1975)).

Burdett argues that even where a portion of the moving party’s attorney’s time was spent on claims for which attorney’s fees are not available, the party may nonetheless be awarded all attorney’s fees if the awardable issues are “intertwined” with the issues that are not awardable. See Regency Homes of Dade, Inc. v. McMillen, 689 So.2d 1204, 1205 (Fla. 3d DCA 1997) (concluding that a full award of attorney’s fees was proper where issues for which attorney’s fees were permitted were intertwined with issues for which attorney’s fees were not permitted); Baker v. Falcon Power, Inc., 788 So.2d 1104, 1106 (Fla. 5th DCA 2001) (same).

We have previously held that “where the claims involve a ‘common core’ of facts and are based on ‘related legal theories,’ a full fee may be awarded unless it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought.” Anglia Jacs & Co., 830 So.2d at 172 (quoting Caplan v. 1616 E. Sunrise Motors, Inc., 522 So.2d 920, 922 (Fla. 3d DCA 1988)). Miele disputed Burdett’s claim that he was a shareholder. Bur-dett’s success on his declaratory relief action to determine if he was a shareholder conferred standing to pursue his derivative action as a shareholder of Forte. We hold that the trial court did not abuse its discretion by awarding Burdett his attorney’s fees for time spent on the declaratory relief action because a determination of the issue of Burdett’s status as a shareholder raised in the declaratory relief action was dispositive of one of the elements of proof required in the derivative claim.

Based upon the foregoing, we reverse the award of prejudgment interest to Miele. On remand, the court shall award prejudgment interest only on that amount of salary owed to Miele based upon the evidence presented in the accounting trial. We affirm the attorney’s fee award to Bur-dett.

Affirmed in part, Reversed in part and Remanded.

MAY, C.J., and CONNER, J., concur.

      . The complaint also contained a count for rescission, which applied only to Daddono who is not a party to this appeal.

      . Pursuant to the parties' stipulation, a bench trial on the count for an accounting would follow the jury trial.


author: WOLF, J.

text:
    M.H., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0572.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

M.H. asserts that the trial court erred in deviating from the Department of Juvenile Justice’s (DJJ) recommendation of probation. We agree and reverse.

Appellant pled guilty to possession with intent to sell, manufacture, or deliver a controlled substance and possession of less than 20 grams of marijuana. The charges were based on appellant’s attempt to sell marijuana to an undercover police officer on November 20, 2010.

Appellant had two previous arrests for possession of marijuana, one in February 2010 and one in June 2010. He was placed on probation for both offenses on July 28, 2010, and reoffended on November 3, 2010. Appellant was still on probation for one of the prior charges at the time of his arrest on the instant charges.

Prior to sentencing, the DJJ issued a predisposition report (PDR). The PDR listed both previous arrests, but mentioned only one in the recommendation section. The PDR recommended probation and substance abuse education but did not discuss the timing of the prior arrests or provide any reason why probation would be any more effective in the present case than it had been in the previous cases. The trial court rejected the recommendation for probation and placed appellant in a moderate-risk facility.

Section 985.433(7)(b), Florida Statutes (2010), governs the extent to which a trial court may deviate from the DJJ’s recommendation in a PDR and provides in pertinent part:

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons that establish by a preponderance of the evidence why the court.is disregarding the assessment of the child and the restrictiveness level recommended by the department. Any party may appeal the court’s findings resulting in a modified level of restrictiveness under this paragraph.

In E.A.R. v. State, 4 So.3d 614, 638 (Fla. 2009), the supreme court elucidated on the steps a trial court must take prior to deviating from a DJJ recommendation stating:

The only rational or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another-and thereby rationalize a departure disposition's for the court to:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrietiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.

In addition to the foregoing, the trial court’s stated explanation must provide a legally acceptable reason for “disregarding” the DJJ’s assessment and PDR by “identifying significant information that the DJJ has overlooked, failed sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unre-habilitated child poses to the public.” Id. at 634.

E.A.R. sends several clear messages:

1. Trial courts must seriously consider what they are doing before deviating from DJJ recommendations;
2. There are certain specific things that must be considered prior to deviation; and
3. The face of the deviation order must demonstrate that the trial court fully considered the required prongs of E.A.R., and the appellate court will not be able to fill in the blanks of a deficient order.

Here, the trial court deviated from the recommendation for probation and placed the juvenile in a moderate risk facility. In deviating, the trial court stated:

the recommendation did not consider the child’s history of delinquent behavior. The child would benefit from a structured program for his drug use and his — the child’s behavior demonstrates no respect for authority or the law. Continued probation would not be in his best interest in that the child is essentially a drug dealer.

One might argue that the trial court’s observations and conclusions were reasonable in light of appellant’s committing a new drug offense within four months of being put on probation for two prior drug offenses. Further, the trial court was correct that the DJJ had failed to expressly consider the child’s prior history of delinquent behavior. Specifically, while the PDR listed two prior drug offenses, only one prior offense was mentioned in the recommendation section, and there was no discussion concerning the prior arrests or any indication of how the prior arrests and probations would indicate that appellant was amenable to probation in the immediate case. “Consider” is defined as “to look at carefully, examine.” Webster’s New World Dictionary 297 (3d College ed. 1988). The mere mention of the prior disposition without anything more does not in any way indicate that the DJJ carefully looked at, or examined, the prior convictions. However, the written reason for deviation merely stated the PDR “failed to consider the child’s delinquent history” without calling specific attention to where the report was deficient. Based on the dictates of E.A.R., this lack of specificity by the trial court cannot support affir-mance. Had the trial court’s written reasons for deviating articulated this deficiency rather than merely making a conelusory statement that the recommendation failed to consider the child’s history, it may have withstood appellate review.

Regardless of the foregoing, reversal would likewise be required pursuant to the second prong of E.A.R. As noted in E.A.R., in deviating, a trial court must articulate “an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) ... the divergent treatment programs and services available to the juvenile at these levels.” E.A.R., 4 So.3d at 638 (emphasis added). Here, the trial court implied that the moderate-risk facility would offer the child a “structured” drug program. However, nothing in section 985.03(44)(c), Florida Statutes, states that all moderate-risk facilities have drug treatment programs as suggested by the trial court. While a trial court, working routinely with juveniles, may have insight into the types of programs provided at certain juvenile detention facilities, EAR. requires a trial court place that knowledge on record if the judge intends to rely on these types of findings to support deviations. The trial court’s stated reason generally suggested appellant would benefit from a structured drug program but did not articulate an understanding that the moderate-risk facility would provide this program, as required by E.A.R.

Last, even if the trial court had provided sufficient reasons and properly considered the type of drug programs available in moderate-risk facilities, the trial court reversibly erred by failing to state the deviation and placement in a moderate-risk facility was the least-restrictive setting necessary to protect the public from recidivism, while balancing the need for rehabilitation. E.A.R., 4 So.3d at 638. In the underlying case, the PDR and the DJJ officer’s testimony established appellant would be placed in a drug treatment program while on probation and the trial court did not state why this type of treatment was inadequate under the circumstances. The underlying offenses for sale and possession of marijuana are not violent crimes which dictate a heightened need to protect the public, but even if they were, the trial court never stated appellant posed any threat to society.

In conclusion, it is important for trial courts to understand that deviating from a DJJ’s recommendation is a difficult matter pursuant to the dictates of E.A.R. In order to deviate lawfully, a trial court must do more than place generalized reasons on the record; it must engage in a well-reasoned and complete analysis of the PDR and the type of facility to which the trial court intends to send the child. This is no easy task and will take time and consideration.

However, when reversing the type of error that occurred, this court has allowed the trial court an opportunity to amend the disposition order to add the necessary information. See C.M.H. v. State, 25 So.3d 678 (Fla. 1st DCA 2010). Specifically, in a case similar to the underlying one, this court reversed the trial court’s deviation from DJJ’s recommendation of probation finding C.M.H. posed a threat to the public and required incarceration. In reversing, this court stated in relevant part:

The trial court did not engage in the appropriate analysis of determining why this disposition was better suited to serving the rehabilitative needs of C.M.H., in the least restrictive setting, and protecting the public from further acts of delinquency. See also Dep’t of Juvenile Justice v. K.B., 784 So.2d 556, 557 (Fla. 1st DCA 2001). Accordingly, we reverse and remand to provide the trial court an opportunity to enter an order in compliance with E.A.R., or, if the trial court cannot, impose the probation recommended by the DJJ. See M.K. v. State, 4 So.3d 1271 (Fla. 1st DCA 2009) (reversing and remanding to provide trial court an opportunity to enter an order in compliance with E.A.R. where trial court failed to conduct proper analysis in departing from the DJJ’s recommendation); M.J.S. v. State, 6 So.3d 1268 (Fla. 1st DCA 2009) (same).

Id. at 680.

Based on C.M.H., we reverse and remand so that the trial court may place more specific findings in the disposition order, or in the alternative, if those findings cannot be made, enter a new order placing appellant on probation.

LEWIS and RAY, JJ., concur.


text:
    Kevin Jeffrey JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4785.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.

      Kevin Jeffrey Jones, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s 18-claim, 100-plus-page motion and supplemental motion for postconviction relief. Fla. R.Crim. P. 3.850. Appellant raised numerous claims couched in terms of ineffective assistance of trial counsel. See Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (setting forth a two-prong standard that requires defendant to establish (1) that counsel provided constitutionally-deficient performance and (2) that defendant was prejudiced). The postconviction court summarily denied certain claims and denied the remaining claims after conducting an evidentiary hearing.

We write to address appellant’s arguments that th'e court erred in excluding him from the evidentiary hearing based on appellant’s disruptive courtroom behavior. Appellant contends that the court did not conduct an adequate inquiry when he moved to discharge appointed postconviction counsel and erred in refusing to permit him to represent himself. We hold that the court did not abuse its discretion in removing appellant from the courtroom after he punched his postconviction attorney and that the court conducted an adequate inquiry as to appellant’s dissatisfaction with appointed counsel. Appellant did not unequivocally ask to represent himself at the hearing, and the trial court did not abuse its discretion in refusing to allow appellant, whose legal filings are largely incomprehensible, to represent himself. We affirm in all respects.

Background

Appellant was convicted after jury trial of capital sexual battery on a child under twelve and sentenced as a prison releasee reoffender to life in prison. The child testified at trial that appellant, her mother’s live-in boyfriend, succeeded in partially inserting his penis into her vagina and anus and that he inserted his fingers into her vagina. The day after the incident the six-year-old victim reported the abuse to a school teacher who discovered feces and blood in the child’s underwear. The child’s hymen was intact but she had a bleeding abrasion in her vaginal area and redness which the doctor who conducted the sexual assault examination opined could have been caused by rubbing with a finger or penis. The doctor opined that a bloody vaginal swab suggested possible inter-vaginal orifice trauma as well. The child was incontinent but had solid stool which the doctor found unusual and consistent with anal penetration. This court per curiam affirmed the conviction and sentence on direct appeal without a written opinion. Jones v. State, 963 So.2d 245 (Fla. 4th DCA 2007) (table).

Postconviction Motions

Appellant’s excessive postconviction motions raised many repetitive, meritless, and frivolous claims which we will not discuss in detail in this opinion. The trial court ordered an evidentiary hearing on several claims because some of appellant’s sworn allegations were not refuted by the record. Appellant alleged that, in a deposition, the victim had denied that appellant caused the injury to her vaginal area and that he had seen the child’s mother applying ointment to the injury. Trial counsel had traveled across the state to take the child’s deposition and lost the tape of that deposition. Counsel again deposed the victim before trial and she maintained that appellant was the cause of her injuries. Trial counsel’s loss of the tape of the initial deposition was addressed in hearings before trial after appellant filed motions to discharge his trial counsel on that basis. Although the issue appears to have been fully litigated before trial, in these post-conviction proceedings, appellant accuses trial counsel and the prosecutor of conspiring to destroy the tape of this deposition (and then coaching the victim to lie in the second deposition) in order to hide evidence which appellant maintains was favorable to his defense.

Evidentiary Hearing

At the evidentiary hearing, after the judge denied appellant’s requests to discharge his court-appointed postconviction counsel and to appoint new counsel, and after the judge refused to allow appellant to represent himself, appellant summoned his postconviction counsel to his side under the pretense that he wanted to speak with him. Appellant then struck counsel in the face with a closed fist. Appellant was subdued by deputies and removed from the courtroom. The evidentiary hearing proceeded with his court-appointed post-conviction counsel and without appellant.

Trial counsel testified that the victim had not made the statements that appellant alleged regarding the pre-existing nature of the injury. The victim did not indicate in either deposition that appellant had not caused the injury. The victim’s mother also testified at deposition contrary to appellant’s allegations. Presumably, if permitted to testify, appellant would have repeated the unfounded accusations that he lodged in his motion.

In his initial brief, appellant proffers that he would have testified regarding a sexually-transmitted disease he had acquired in the past and that the victim would have gotten this disease if he had committed the acts. This proffered testimony is not relevant to any claim raised in the motion.

Analysis

Appellant contends that the trial court erred in removing him from the courtroom and failing to afford him an opportunity to return and provide testimony regarding his postconviction claims. He also contends that the trial court did not conduct a sufficient inquiry into his requests to discharge court-appointed counsel.

A motion for postconviction relief under Rule B.850 is a civil proceeding challenging a conviction and sentence. State ex rel. Butterworth v. Kenny, 714 So.2d 404, 409-10 (Fla.1998). Postconviction challenges are quasi-criminal in nature because they are brought in courts with criminal jurisdiction. Id. A postconviction movant, however, does not have the same panoply of constitutional rights which are afforded to a defendant in a criminal prosecution.

Neither the Fifth nor the Sixth Amendment rights of a criminal defendant apply in postconviction relief proceedings. Arbelaez v. State, 898 So.2d 25, 42 (Fla. 2005). See also Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (holding that prisoner has no federal constitutional due process or equal protection right to counsel in postconviction proceedings); Mayolo v. State, 714 So.2d 1124, 1124 (Fla. 4th DCA 1998) (recognizing that a postconviction movant has no Sixth Amendment right to appointed counsel). A postconviction movant stands convicted under a presumptively valid judgment and the movant, as a civil litigant, has the burden of proving a legally valid basis to vacate that judgment.

A defendant cannot claim ineffective assistance of postconviction counsel. Hunter v. State, 48 So.3d 836 (Fla.2010) (additional cases cited therein); Hartley v. State, 990 So.2d 1008, 1016 (Fla.2008) (‘“[A]ll courts’ have held, that the Sixth Amendment does not guarantee a right to the effective assistance of posteonviction counsel”).

The requirements of Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which are founded on the Sixth Amendment, do not apply in postconviction relief proceedings. See Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 163, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (holding that Faretta does not apply and a defendant has no right of self-representation in a direct appeal of a criminal conviction).

The right to represent oneself in a criminal prosecution derives from the Sixth Amendment and “ ‘must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ’ ” Tennis v. State, 997 So.2d 375, 377-78 (Fla.2008) (quoting Faretta, 422 U.S. at 834, 95 S.Ct. 2525). Under Faretta, the criminal defendant has a constitutional right to proceed pro se in the criminal prosecution when the defendant “voluntarily and intelligently elects to do so.” Faretta, 422 U.S. at 807, 95 S.Ct. 2525. A defendant’s unequivocal request for self-representation triggers a duty for the trial court to conduct a hearing to “determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.” Tennis, 997 So.2d at 378. When making this determination, the defendant’s legal knowledge and skill to conduct the defense is not a basis for denying self-representation. Fla. R.Crim. P. 3.111(d)(3). See Faretta, 422 U.S. at 836, 95 S.Ct. 2525. The inquiry is intended to assure that the decision to waive counsel is made with “eyes open.” Id. at 835, 95 S.Ct. 2525.

Faretta itself provides that: “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” 422 U.S. at 834 n. 46, 95 S.Ct. 2525. “[S]erious and obstructionist misconduct” is grounds for terminating self-representation in a criminal prosecution. Id. (citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)). See also Perry v. Mascara, 959 So.2d 771, 773 (Fla. 4th DCA 2007) (“The right to self-representation, however, is not absolute and does not entitle petitioner to abuse the court system.”).

In Florida, a non-capital post-conviction movant has no absolute constitutional or statutory right to appointed counsel in postconviction relief proceedings. See Graham, v. State, 372 So.2d 1363, 1365 (Fla.1979); Hooks v. State, 253 So.2d 424, 426 (Fla.1971). The authority to appoint counsel in such proceedings derives from “due process concerns.” Russo v. Akers, 724 So.2d 1151, 1152 (Fla.1998) (citing State v. Weeks, 166 So.2d 892, 896 (Fla.1964)). A trial court has discretion to appoint counsel in postconviction proceedings and, in exercising that discretion, should consider, among other things, the complexity of the matter and whether the movant raises meritorious claims. Id. (quoting Graham, 372 So.2d at 1365-66).

The procedures set out in Nelson and Faretta are intended to safeguard the criminal defendant’s Sixth Amendment right to representation by competent counsel in the criminal prosecution. A defendant has no such rights in postconviction proceedings. Kokal v. State, 901 So.2d 766, 777 (Fla.2005) (“ ‘[Defendants have no constitutional right to representation in postconviction relief proceedings.’ ”) (quoting State ex rel. Butterworth v. Kenny, 714 So.2d at 407). “All that is required in postconviction relief proceedings, whether capital or non-capital, is that the defendant have meaningful access to the judicial process.” Butterworth, 714 So.2d at 408.

A postconviction movant has no constitutional right to self-representation at an evidentiary hearing. The postconviction court has discretion as to whether to discharge appointed postconviction counsel, appoint new counsel, or to allow self-representation. See, e.g., Isom v. State, 953 So.2d 604, 605 (Fla. 1st DCA 2007) (affirming denial of motion to discharge court-appointed postconviction counsel because “it is clear from the record that no valid reason for discharge existed”); Freeman v. State, 65 So.3d 553, 557 (Fla. 2d DCA 2011) (finding that postconviction court abused its discretion in denying mov-ant’s request for self-representation at an evidentiary hearing where the postconviction court failed to conduct any meaningful inquiry in order “to balance [the defendant’s] desire to represent himself against the State’s interest in the fair and efficient administration of justice”).

While a postconviction court should conduct some inquiry into the mov-ant’s basis for seeking to discharge counsel appointed in postconviction proceedings, the court is not required to comply with the strictures of Nelson or Faretta. For example, in a direct appeal from a criminal conviction, a trial court’s failure to conduct a sufficient Faretta inquiry following a defendant’s unequivocal request to discharge counsel is per se reversible error. Tennis, 997 So.2d at 379. Once self-representation is granted, the trial court is required to renew the offer of counsel at all critical stages of the proceedings. Monte v. State, 51 So.3d 1196, 1199 (Fla. 4th DCA 2011). The same is not true in postconviction proceedings. Likewise, the focus of a Nelson inquiry — to determine whether the criminal defendant is receiving effective assistance of trial counsel — is not applicable in postconviction proceedings. A post-conviction court is not required to conduct a formal hearing any time a movant seeks to discharge counsel and/or represent himself or herself. Situations may arise where review of written materials suffices in deciding the issue(s).

Some inquiry into the voluntary and intelligent nature of a movant’s decision to seek self-representation in posteon-vietion proceedings is typically appropriate, and a movant should be provided a sufficient opportunity to make a record of his or her reasons for seeking discharge of counsel and/or self-representation. Nonetheless, formal Faretta and Nelson hearings are not required.

In this case, the trial court allowed appellant an extensive opportunity to express his dissatisfaction with and grounds for discharging appointed counsel. Appellant complained that his postconviction attorney had filed a “renewed” motion for testing even though the attorney never filed a previous written motion. He alleges that counsel was thus dishonest with the court. The record demonstrates that postconviction counsel complied with appellant’s requests (although counsel questioned whether the motion could be filed in good faith) and in fact filed a written motion to have the child’s underwear tested for traces of the ointment which appellant alleged he saw applied. The trial court considered and denied that motion on the merits. Appellant also complained generally that he did not trust the attorney and that the attorney had not gone to the home where the abuse occurred to take photographs.

The allegation that evidence of ointment would be found in retesting the victim’s underwear, should such evidence exist, would neither substantially undermine the evidence against appellant nor establish a reasonable probability that the outcome of the trial would differ. The photographs that appellant wanted taken dealt with collateral issues regarding the position of a street lamp outside the house where the abuse occurred and could not have reasonably affected the outcome of the jury’s verdict. The child shared a room with appellant, identity was not an issue, and any impeachment regarding visibility in the room would not have substantially affected the victim’s credibility.

The trial court did not abuse its discretion in refusing to discharge appointed counsel and refusing to appoint another postconviction attorney for appellant. Appellant failed to show any valid basis for discharging his appointed counsel, and appellant’s rambling and incoherent filings, and his unorthodox demands of postconviction counsel, demonstrate that he is substantially unable to abide by procedural rules and substantive law.

A postconviction attorney’s refusal to comply with a movant’s demands is not grounds for automatic discharge and appointment of new counsel. Appointed postconviction counsel is not required to subordinate his professional judgment to the whims or misguided desires of the postconviction movant. The trial court in this case heard appellant’s complaints and found they did not warrant discharging counsel. We fully agree and will not disturb that decision.

In an apparent attempt to stall the proceedings, appellant declared his belief that the hearing could “not proceed without him” because he was not “being disruptive” and moved to disqualify the judge following the adverse ruling on his motion to discharge counsel.

The postconviction court questioned appellant extensively when he stated that he was being “forced” to represent himself. The court cautioned him about the dangers of self-representation. Appellant explained that he had a sixth-grade education (although he had completed high school through the eleventh grade) and could not do it but was being “forced” to represent himself. The court refused to allow appellant to represent himself and denied his motion for continuance.

When postconviction counsel attempted to call appellant as a witness at the hearing, appellant declared: “What are you calling me for?” Postconviction counsel opted to call trial counsel first and began taking testimony. Appellant then summoned counsel to his side and punched him in the face when counsel leaned over to hear what appellant had to say.

The court did not abuse its discretion in refusing to allow appellant to represent himself at the evidentiary hearing. We have reviewed appellant’s extensive filings, including his brief in this appeal, which are practically incomprehensible. When questioned by the court, appellant stated that he was being “forced” to represent himself because he lacked the intellect or education to conduct his own representation. Appellant wanted another attorney appointed and did not unequivocally demand to represent himself. He maintained that he was being “forced” to do so and that he “did not have a choice.” The court explained that appellant did indeed “have a choice” as he could proceed with appointed counsel. Appellant wanted an attorney that would comply with all his demands, such as demanding that the child victim be subpoenaed so he could question her again at the hearing. Given appellant’s courtroom behavior and his incoherent arguments, we imagine that chaos would have ensued had appellant been permitted to represent himself at this hearing. The court acted appropriately in requiring him to proceed with the assistance of counsel.

Appellant may have believed that, by punching his appointed attorney, he could undermine the court’s ruling, delay the proceedings, and obtain another hearing. Although appellant complains that he was not permitted to offer testimony at the hearing, postconviction counsel attempted to present appellant’s testimony and it was appellant’s own criminal conduct in striking his attorney that resulted in his removal from the proceeding. Even in a criminal jury trial, where the defendant has a Sixth Amendment constitutional right to be present, a trial court has discretion to protect the sanctity of the courtroom and remove a disruptive defendant. See Illinois v. Allen, 397 U.S. at 347, 90 S.Ct. 1057 (approving of a trial court’s removal of a criminal defendant from his jury trial where the defendant was verbally disruptive). The postconvietion court here acted well within its discretion in removing appellant from the courtroom after he struck an officer of the court. Contrary to appellant’s argument, the court was not required to allow him to return to the courtroom or to provide him with an opportunity to “promise” to behave appropriately.

Affirmed.

STEVENSON, HAZOURI and CIKLIN, JJ., concur.

      . In the order denying appellant’s motion, the trial court referred appellant to the Department of Corrections for disciplinary proceed-tags based upon his "disrespect for the court, misuse of the legal system, and outright criminal conduct.”

      . We have reviewed a copy of the courtroom security video which was attached to the post-conviction court’s order of denial.

      . In death penalty postconviction proceedings in Florida, where the movant has a statutory right to appointed collateral counsel, the Florida Supreme Court has required a Farettatype inquiry before the movant may dismiss the postconviction proceedings and discharge collateral counsel. Fla. R.Crim. P. 3.851(i). See Trease v. State, 41 So.3d 119 (Fla.2010), cert. denied, - U.S. -, 131 S.Ct. 1479, 179 L.Ed.2d 316 (2011); Durocher v. Singletary, 623 So.2d 482, 485 (Fla. 1993). This rule applies "only when a prisoner seeks both to dismiss pending postconviction proceedings and to discharge collateral counsel.” Fla. R.Crim. P. 3.85i(i)(l). The Court, however, has entertained the merits of a claim that the trial court failed to conduct an adequate Far-etta inquiry before permitting the death penalty postconviction movant to represent himself. McDonald v. State, 952 So.2d 484 (Fla.2006). The Court has not instituted any rule requiring a detailed Faretta-style inquiry in non-capital postconviction proceedings.

      . Counsel at the hearing was the second attorney appointed to represent appellant in these postconviction proceedings. It appears that appellant has filed bar complaints and motions to discharge every attorney he has ever been appointed in this case.
      The object of proceedings, pursuant to Strickland v. Washington, is not to "grade counsel's performance." 466 U.S. at 697, 104 S.Ct. 2052. To meet the deficiency prong, counsel must have committed serious errors of constitutional magnitude. Appellant faults counsel for not taking actions which, in light of the totality of the evidence, were inconsequential. Appellant's over-litigation of these matters in the postconviction proceedings demonstrates that he lacks the ability (or willingness) to follow the applicable rules and substantive law. See Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525; Thomas v. State, 867 So.2d 1235, 1238 (Fla. 5th DCA 2004) ("In order to be entitled to self-representation, a defendant must show that he or she has the ability and willingness to abide by the rules of procedure and courtroom protocol.").

      . The pro se motion, filed while appellant was represented by counsel, was a nullity. Logan v. State, 846 So.2d 472, 476 (Fla.2003). In any event, the apparent grounds were legally insufficient. Downs v. Moore, 801 So.2d 906, 915 (Fla.2001) (recognizing that an adverse ruling does not provide a legally-sufficient basis for judicial disqualification).


author: CONNER, J.

text:
    Eduardo PERAZA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-801.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    James S. Lewis, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Eduardo Peraza appeals the denial of his motion to suppress cultivated marijuana found in his garage during the search of his rental residence. He argues the trial court erred in finding that (1) he consented to the search of his home, (2) any consent extended to the garage, and (3) he lacked standing to contest the search of the garage. In addition, Peraza argues the trial court erred because it ignored a prior concession by the State that he had standing to challenge the search of the garage and failed to suppress evidence of the marijuana on grounds he was not in actual or constructive possession of the marijuana. We affirm, finding no error.

Peraza and his girlfriend were arrested after officers found a grow house operation at their residence. Both moved to suppress all evidence seized in the search of the residence, claiming the officers used impermissible and illegal tactics to procure consent to search, and the search went beyond the scope of any consent.

According to testimony presented by the State, two detectives were taking part in a state-wide initiative to investigate suspected marijuana grow houses. Acting on an anonymous tip, the detectives approached Peraza’s residence and knocked on the door. Peraza answered, and the sergeant explained the anonymous tip to Peraza and asked him if the detectives could come in and have a look around the residence. Peraza told the detectives that he did not know of any grow houses inside the residence, but there was a garage in the back of the residence he knew nothing about. He stated that this part of the residence was locked, and he didn’t know what was in there or the individual that came and went from that part of the house. Peraza also told the officers he didn’t have a problem with them looking, but his girlfriend was in the shower. His girlfriend eventually came to the door, and she told the detectives that she wasn’t aware of any grow houses inside the residence. Both Peraza and his girlfriend exited the residence, gave the detectives verbal permission to search the residence, and signed consent waiver forms. One of the detectives testified “Specifically, we asked if we could look in the house, he said, yeah, you can look into it, we asked him can we get into the whole house, he said if you can get into it, you can search it.” Other officers entered the residence and searched the entire home. The officers found evidence of marijuana cultivation throughout the residence. Open food-saver bags, a vacuum sealer, a worksheet with cultivation tips, and a cultivation calendar were in the master bedroom. Marijuana cultivation manuals were on the back of the master bathroom toilet. A key on Peraza’s key chain opened the locked door to the garage, where the growing marijuana was discovered. Both Peraza and his girlfriend were arrested.

Peraza testified to a very different version of events, which the trial court deemed not credible. He testified that the detectives knocked on his door twice and asked if they could search his residence, but each time he told them no. When Peraza opened the door a third time, one of the detectives grabbed him by the arm and pulled him out of the residence. Twenty minutes later, the officers knocked on the door again, and when Peraza’s girlfriend opened the door, she was pulled out of the residence as well. According to Peraza, the officers badgered him and his girlfriend for an hour until they signed the consent forms. He claimed the consent form was never read to them.

At the conclusion of testimony and argument, the trial court found the detective’s version of events to be credible and Pera-za’s version of events not to be credible. Based on the detective’s testimony, the court found the State met its burden of proving Peraza validly consented to the search of his home. The trial court also found Peraza lacked standing to challenge the search of the garage based on his unequivocal statements that he knew nothing about that part of the residence and didn’t have anything to do with that part of the residence.

A mixed standard of review applies to a trial court’s decision on a motion to suppress. “An appellate court is bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence.” However, a de novo standard applies to questions of law. Ferguson v. State, 58 So.Sd 360, 363 (Fla. 4th DCA 2011) (citations omitted).

“Whether consent is voluntary is a question of fact to be determined by the trial judge, based on the totality of the circumstances.” Gonzalez v. State, 59 So.3d 182, 185 (Fla. 4th DCA 2011) (citing Taylor v. State, 855 So.2d 1, 17 (Fla.2003)). As explained in Gonzalez:

[Wjhere the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. Further, where there is an illegal detention or other illegal conduct on the part of the police, a consent will be found voluntary only if there is clear and convincing evidence that the consent was not a product of the illegal police action. Otherwise, the voluntariness of the consent must be established by a preponderance of the evidence.

Id. (quoting Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992)) (citations omitted).

Peraza argues his consent to the search of his residence was not freely and voluntarily given because he was pulled out of his residence and badgered for an hour until he signed a consent form that was never read to him. The problem with Peraza’s argument is that it is based on his version of events, which the trial court rejected. Based on the version of facts that the trial court found credible, there was no evidence to suggest any illegal detention or conduct by the officers. Instead, the officers waited until Peraza and his girlfriend were ready to come outside, and they both gave their consent. Thus, there is competent, substantial evidence to support the trial court’s finding that Pera-za validly consented to the search of his home.

Next, Peraza argues that, assuming the officers had valid consent to search the residence, the consent did not extend to the garage in the back of the home, which was locked and for which he had no knowledge or control. This argument is directly refuted by the detective’s testimony that he asked Peraza if they could search the whole house, and Peraza responded, “if you can get into it, you can search it.”

Peraza argues that the consent to search the whole house was not valid because one cannot give a valid consent to search an area not within the consentee’s possessory interest, custody, or control. In response, the State asserts that if Peraza did not have ownership or control of the garage, then he lacks standing to challenge the search of the garage.

To invoke the Fourth Amendment, “a criminal defendant must establish standing by demonstrating a legitimate expectation of privacy in the area searched or the item seized. A legitimate expectation of privacy consists of both a subjective expectation and an objectively reasonable expectation, as determined by societal standards.” State v. Young, 974 So.2d 601, 608 (Fla. 1st DCA 2008) (citations omitted). But by disclaiming any interest in the garage, Peraza expressly disclaimed any subjective expectation of privacy in the garage. See United States v. Bell, 218 Fed.Appx. 885 (11th Cir.2007) (defendant did not have standing to challenge search of apartment when he specifically testified he did not lease apartment and did not prove he was a guest in the apartment). Therefore, the trial court did not err in holding Peraza lacked standing to challenge the search of the garage. Moreover, there was evidence that a key to the garage was on Peraza’s key chain, and there were objects connected to a marijuana cultivation operation found in areas of the house Peraza clearly admitted were occupied and controlled by him. Such evidence would negate a conclusion that he did not have possession or control over the garage. It also negates his argument on appeal that he did not have actual or constructive possession over the marijuana.

Affirmed.

HAZOURI and GERBER, JJ., concur.

      . One of Peraza’s arguments on appeal is that the trial court improperly found Peraza lacked standing to contest the search of the garage after the State made a concession at the suppression hearing that he did have such standing. We find no merit to this argument.


text:
    Richard Holt MONCUS II, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3140.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Richard Moncus appeals his conviction for aggravated assault with a deadly weapon. He claims the trial court erred in admitting evidence of his post-arrest conduct and in finding a witness competent to testify. Moncus also argues the trial court erred in allowing the State to enter into evidence certified copies of prior convictions without requiring the State to prove he is the same person named in the prior judgments. We affirm on the first two issues without comment. We also affirm on the last issue but write to clarify that the burden of proof needed to establish the admissibility of prior convictions is dependent on the purpose for admitting those convictions.

At trial, the State called the arresting officer, who testified that Moncus was verbally resistant and extremely aggravated when he was arrested. On cross-examination, defense counsel asked the officer “Isn’t it true that he was more resistant because he stated he didn’t do anything wrong?” The officer responded, “That’s correct. He denied everything.” After the officer was excused, the State announced its intent to introduce evidence of Moncus’s six prior felony convictions and one prior crime of dishonesty as a result of defense counsel’s eliciting exculpatory hearsay statements of Moncus on cross-examination. Also, the state announced that if defense counsel would not stipulate to the prior convictions, it intended to call an expert witness to establish that the fingerprints on seven judgments matched Moncus’s fingerprints. Defense counsel objected on grounds the fingerprint expert was not disclosed as a possible witness prior to trial. The State then announced its intent to introduce the certified copies of the prior judgments without calling a witness. Defense counsel objected, arguing that 1) certified copies of prior judgments could not be introduced without a proper predicate and foundation and 2) the State was required to prove that Moncus and the person named on the judgments were the same person. The trial court held that certified convictions did not need any additional authentication, and the State did not need to introduce further evidence of identity unless Moncus introduced evidence to rebut that the person named in the judgments is Moncus. The State then introduced the certified copies of the prior judgments into evidence. No further evidence was taken regarding the convictions from either party. The State referred to the prior convictions repeatedly during closing argument.

Moncus does not contest the State’s right to attack his credibility after eliciting exculpatory hearsay, even though he chose not to testify. Kelly v. State, 857 So.2d 949 (Fla. 4th DCA 2003). Evidence of a prior felony conviction or crime of dishonesty is admissible for impeachment under section 90.610(1), Florida Statutes (1995). Further, the trial court was correct in holding that a certified copy of a judgment does not need further authentication to be admitted into evidence. A certified copy of an official public record is self-authenticating under section 90.902(4), Florida Statutes (2003), and needs no additional foundation other than what is required for a valid certification in that subsection. However, Moncus argues that the State was required to produce competent evidence that the prior convictions were in fact his prior convictions when Moncus raised the issue of lack of identity. He asserts that instead, the trial court erred by shifting the burden of proof from the State to him to disprove the validity of the prior convictions.

Moncus relies on Lyons v. State, 823 So.2d 250 (Fla. 4th DCA 2002), in which the defendant challenged the addition of fourteen points to his scoresheet for a prior conviction he claimed was not his. The defendant raised the challenge for the first time in a motion to correct sentencing error. The state argued that while it might have the burden of proving the prior conviction at sentencing, the defendant had the burden of proof after sentencing. Reversing, the court held that the state had the burden of producing competent evidence of a disputed conviction at all times. Id. at 251; see also Brown v. State, 695 So.2d 1295 (Fla. 2d DCA 1997) (state must produce competent evidence when a defendant challenges prior convictions at sentencing).

When the State must establish the existence of a prior conviction to prove an essential element of an offense, merely introducing a judgment, which shows identity between the name on the prior judgment and the name of the defendant, is insufficient. Mason v. State, 853 So.2d 544, 545 (Fla. 1st DCA 2003). Instead, the State must present affirmative evidence that the defendant and the person named on the prior judgment are the same person. Miller v. State, 573 So.2d 405, 406 (Fla. 2d DCA 1991). This requirement is rooted in the requirement that the State prove the defendant guilty of every element of the offense beyond a reasonable doubt. Gravatt v. United States, 260 F.2d 498 (10th Cir.1958). In contrast, a trial court can rely on nothing but certified copies and official court records at sentencing to determine, for example, whether a defendant qualifies for an enhanced sentence. Moore v. State, 944 So.2d 1063 (Fla. 4th DCA 2006); Slade v. State, 898 So.2d 120 (Fla. 4th DCA 2005). As due process does not require a prior conviction to be proven beyond a reasonable doubt when it is not an element of the offense, see Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Roberts v. State, 559 So.2d 289, 291 (Fla. 2d DCA 1990), only a preponderance of the evidence standard applies. This lesser burden of proof can be satisfied by merely showing name identity. See Singh v. Holder, 379 Fed.Appx. 578 (9th Cir.2010) (name identity without rebuttal evidence is sufficient to meet clear and convincing evidence standard of deportation proceeding).

Here, the State did not introduce the certified copies of Moncus’s past convictions at trial to establish an essential element of an offense or to establish a sentence enhancement, but to impeach Moncus’s character. Whether or not the past convictions were in fact Moncus’s was an issue of fact. Preliminary questions of fact concerning the admissibility of evidence are determined by the trial court. § 90.105(1), Fla. Stat. (1995). The burden of proof is on the offering party to prove the disputed fact by a preponderance of the evidence. Romani v. State, 542 So.2d 984, 985 n. 3 (Fla.1989). Therefore, when introducing evidence of past convictions for impeachment purposes, a party need prove name identity only by a preponderance of the evidence.

In this case, the State introduced seven certified copies of prior judgments. Although not all of the judgments bear the name “Richard Holt Moncus II,” they bear slight variations such as “Richard Holt Moncus,” “Richard H. Moncus,” or “Richard Moncus.” Many have either dates of birth, social security numbers, or both, which are identical to Moncus’s and to each other. “Where two names are presented ... the inference that they designate the same individual is strong in proportion as to the difference between the two are slight; and ... the inference of identity is weak as the points of difference between the two names are numerous and marked.” Johnston v. State, 65 Fla. 492, 62 So. 655, 656 (1913). When Moncus declined to introduce any evidence to disprove identity, the trial court was entitled to rely on the strong inference created by the similarities between Moncus’s name and the names on the prior judgments and hold that the State met its burden to demonstrate name identity without introducing additional evidence.

Affirmed.

WARNER and LEVINE, JJ., concur.


author: WARNER, J.

text:
    David GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4190.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.

      Carey Haughwout, Public Defender, and Peggy Natale, 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.
   WARNER, J.

Appellant, David Griffin, appeals from a criminal judgment, claiming that the court’s disposition resulted in a double jeopardy violation. When the double jeopardy issue was brought to the court’s attention, the court vacated the adjudication and did not sentence on one count, thus eliminating any violation. We therefore affirm.

Appellant was charged by information with trafficking in oxycodone (count I), possession of an electronic weapon by a convicted felon (count II), introducing contraband into a detention facility (count III), possession of hydromorphone (count IV), possession of cocaine (count V), and possession of alprazolam (count VI). The charges arose out of an incident in which appellant allegedly concealed a bag of various contraband in his sock when he was taken to the intake center for the Broward County Detention Facility.

Count III of the information was entitled: “Introduce Contraband into Detention Facility.” However, the language of count III charged that appellant did unlawfully “introduce into or possess upon the grounds of a county detention facility” various contraband (emphasis added).

After the denial of his motion to suppress, appellant entered a plea of no contest to all counts. The plea was open, rather than negotiated. The trial court accepted appellant’s plea and adjudicated him guilty on all counts. A Presentence Investigation was ordered and the case was reset for sentencing.

A few weeks after entering his plea, appellant filed a motion to withdraw his plea on counts I, IV, V, and VI, but to allow the adjudications on counts II and III to remain. The motion argued that double jeopardy precluded appellant’s convictions on counts I, IV, V, and VI where he was also convicted on count III.

The prosecutor ultimately acknowledged that double jeopardy prohibited appellant from being convicted of both count III and the possession charges, explaining that the possession charges were lesser included offenses of the charge of introducing or possessing contraband at a detention facility. However, the prosecutor denied that double jeopardy affected count I, the trafficking count, because trafficking contained an element of the crime, namely amount of drugs, that count III did not. The prosecutor proposed that the court “withdraw” the adjudication on count III, explaining: “[T]hat way you are not imposing any adjudication or sentence at all and potentially that cures the problem as well.”

Following the hearing, the trial court entered an order denying appellant’s motion to withdraw plea, but ordering “that the adjudication imposed on count 3 is hereby vacated and set aside.” The order further explained: “To avoid an alleged violation of the Double Jeopardy Clause, by agreement of the State, the Court will not adjudicate or sentence the defendant on count 3.”

The court then sentenced appellant. On count I for trafficking in oxycodone, appellant was sentenced to 15 years with a 3-year mandatory minimum as a habitual felony offender. On count II, appellant was sentenced to 15 years as a habitual felony offender. On counts IV, V, and VI, he was sentenced to 91.8 months in prison. All sentences were concurrent. The judgments entered prior to the order addressing the motion to withdraw plea have an “X” crossing out the entire document, and new judgments reflecting convictions and sentences only on counts I, II, IV, V and VI were entered on the date of sentencing. This appeal followed.

Both the state and the appellant agree that double jeopardy would be violated by a conviction and sentence for both the introduction or possession of contraband in a facility and the counts for possession of that same contraband. Section 951.22(1), Florida Statutes, provides that “[i]t is unlawful ... to introduce into or possess upon the grounds of any county detention facility ... controlled substances.... ” Thus, where a defendant is convicted of both simple possession and a violation of section 951.22, a double jeopardy violation occurs if it cannot be determined which conduct-introduction or possession-is the basis for the conviction under section 951.22. See, e.g., Desire v. State, 829 So.2d 948 (Fla. 4th DCA 2002). In Desire, this court explained: “To insure that no double jeopardy violation occurs, it is preferable for the court to either separate or narrow the alternatives in the instructions and jury form when a defendant is charged under an alternative conduct statute, such as section 951.22, Florida Statutes (2001).” Id. at 950.

Appellant mistakenly claims, however, that the court withheld adjudication on count III, thus continuing to cause a double jeopardy issue. For double jeopardy purposes, the withholding of adjudication constitutes a conviction. See Bolding v. State, 28 So.3d 956, 957 (Fla. 1st DCA 2010) (“Thus, the constitutional prohibition against multiple convictions for the same criminal offense is violated even when a trial court adjudicates the defendant guilty of one offense and withholds adjudication of guilt as to the other offense.”); Jones v. State, 502 So.2d 1375, 1377 (Fla. 4th DCA 1987) (adjudication withheld is a conviction for double jeopardy purposes). The trial court’s orders made clear that the court completely vacated the adjudication of guilt on count III.

While the normal practice is to vacate the lesser included offenses, see Raines v. State, 19 So.3d 331, 332 (Fla. 2d DCA 2009), the trial court’s remedy of vacating count III (the greater offense) eliminated any potential double jeopardy issue. See Bolding, 28 So.3d at 957 (“When a jury finds a defendant guilty of two offenses, and the defendant cannot be adjudicated guilty of both due to the constitutional prohibition against double jeopardy, the proper remedy is to vacate the verdict of guilt as to one of the offenses.”) (emphasis added). The state did not object, and appellant’s remedy to the trial court’s action would have been to seek to withdraw his plea as to all counts and proceed to trial. He did not do that, nor has he contested the voluntariness of his plea as a result of the cure the trial court imposed. Because he made an open plea to the court, we believe that the court could fashion the remedy it did. In short, there is no double jeopardy violation in this case.

Affirmed.

LEVINE and CONNER, JJ., concur.


text:
    Demond Tywon CROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3468.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2011.
    Demond Tywon Crooks, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We grant the appellant’s motion for extension of time to file a response and accept the response filed in this Court on August 11, 2011, as timely filed. However, we dismiss the appellant’s appeal as untimely without prejudice to the appellant’s filing a petition for belated appeal in this Court.

DISMISSED.

VAN NORTWICK, ROWE, and SWANSON, JJ., concur.


text:
    Steven M. MEREDITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2089.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2011.
    Steven M. Meredith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the judgment and sentence rendered on November 17, 2010, in Escambia County Circuit Court case number 2009-CF-005464-A. 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. RApp. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

DAVIS, PADOVANO, and RAY, JJ., concur.