author: TAYLOR, J.

text:
    HARBOR COMMUNITIES, LLC, Appellant, v. John Jeffrey JERUE and Laurette Jerue, Appellees.
    No. 4D10-4304.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.

      Tim B. Wright of Wright, Ponsoldt & Loreau Trial Attorneys, L.L.P., Stuart, for appellant.
    Nicole Sauvola of Sauvola & Associates, P.A., West Palm Beach, for appellees.
   TAYLOR, J.

We reverse the final judgment dated September 23, 2010, which was the second final judgment entered in this case. Because the second final judgment was not entered pursuant to either Rule 1.530 or Rule 1.540 of the Florida Rules of Civil Procedure, the trial court had no authority to enter a second final judgment after the first final judgment was affirmed on appeal.

By way of background, in June 2004, the plaintiffs, John Jerue and Laurette Jerue, entered into a contract with appellant, Harbor Communities LLC (“Harbor”), for the purchase of a condominium unit in a complex that Harbor was developing. The plaintiffs paid Harbor a total of $42,855 in deposits. The contract provided that Harbor had an unconditional obligation to complete and deliver the unit within two years from the date of execution. In June 2006, the plaintiffs cancelled the agreement in writing and demanded a refund of their deposit on the ground that Harbor failed to complete and deliver the unit within the two-year period. Harbor refused to return the plaintiffs’ deposit.

In August 2006, the plaintiffs filed a complaint against Harbor for breach of contract, seeking return of the deposit. The complaint included a claim for attorney’s fees and costs under the purchase agreement.

Harbor filed an answer, affirmative defenses, and a counterclaim. In the coun-terclaira, Harbor alleged that the plaintiffs breached the Purchase Agreement by failing to close on the unit. Subsequently, Harbor filed amended affirmative defenses, asserting, among other things, that the Purchase Agreement specifically provided for an extension beyond the two-year time for completion due to “acts of God, strikes, and other causes beyond Developer’s control.”

Following discovery, the plaintiffs filed a motion for summary judgment, arguing that, as a matter of law, Harbor breached the two-year unconditional guarantee in the contract. The plaintiffs further argued in their motion that they did not commit any breach of the contract.

On December 10, 2008, the trial court issued an Order Granting Plaintiffs Motion for Summary Judgment. In that order, the trial court not only granted the Plaintiffs Motion for Summary Judgment, but also entered judgment against Harbor in the amount of $42,855. The trial court rejected the argument that Harbor was entitled to an “excusable extension,” held that Harbor failed to perform under its own unconditional guarantee for completion within the two-year period, and ruled that the plaintiffs properly cancelled the agreement in accordance with its terms.

Although the order was styled as an Order Granting Plaintiffs Motion for Summary Judgment, the order also included language of finality and entered judgment in favor of the plaintiffs. In a prior appeal, our court treated the Order Granting Plaintiffs Motion for Summary Judgment as a final order, and we affirmed it without opinion. See Harbor Cmtys., LLC v. Jerue, 32 So.3d 634 (Fla. 4th DCA 2010) (“Harbor Communities I ”).

About three months after we issued our mandate, the plaintiffs filed a motion for summary judgment on Harbor’s counterclaim and for entry of final judgment. Two days before the hearing on the motion, Harbor served a voluntary dismissal of its counterclaim.

On September 23, 2010, the trial court entered a Final Judgment. In this second final judgment, the trial court ordered that Harbor pay the plaintiffs $42,855, plus prejudgment interest in the amount of $16,790.93 and post-judgment interest at the rate of 6% from the date of the final judgment. The second final judgment also reserved jurisdiction as to attorney’s fees and found that the counterclaim had been withdrawn.

Harbor appeals, claiming that the trial court did not have jurisdiction to enter the final judgment dated September 23, 2010. We agree.

The threshold question in this case is whether the Order Granting Plaintiffs Motion for Summary Judgment, which was affirmed on appeal in Harbor Communities I, was a final judgment. “A final judgment is one that determines the rights of the parties and disposes of the cause on its merits leaving nothing more to be done other than to enforce the judgment.” Donaldson Eng’g., Inc. v. City of Plantation, 326 So.2d 209, 210 (Fla. 4th DCA 1976). Here, although the order was styled as an Order Granting Plaintiffs Motion for Summary Judgment, the order also entered judgment in favor of the plaintiffs and required Harbor to pay a sum certain of $42,855. From the four corners of the order, it is apparent that no further judicial labor was contemplated. Moreover, that order was appealed, briefed on the merits, and affirmed by this court in Harbor Communities I. Therefore, this court already determined that the Order Granting Plaintiffs Motion for Summary Judgment operated as a final judgment. For ease of reference, we will refer to that order as the “first final judgment.”

The parties focus much of their argument on whether Harbor served a proper voluntary dismissal, and whether that voluntary dismissal operated to divest the trial court of jurisdiction to enter the second final judgment. But we need not address these issues, as we conclude that the counterclaim was implicitly denied in the first final judgment. Although there do not appear to be any Florida cases directly on point, out-of-state case law holds that “where a judgment implicitly resolves the issues raised by the defendant’s counterclaim, it is a final judgment even though the judgment makes no explicit reference to the counterclaim.” State ex rel. Nixon v. Hoester, 930 S.W.2d 52, 53 (Mo.App.1996); see also Roberts v. Security Trust & Sav. Bank of Brilliant, 470 So.2d 674, 675 (Ala.1985) (holding that even though the record contained no order explicitly denying the defendant’s counterclaim, the judgment was final because the trial court entered a judgment in full for the plaintiff and “[tjhat holding implicitly denied the counterclaim”).

Here, the first final judgment implicitly denied Harbor’s counterclaim. In the first final judgment, the trial court (1) rejected the argument that Harbor was entitled to an “excusable extension,” (2) held that Harbor failed to perform under its own unconditional guarantee for completion within the two-year period, and (3) ruled that the plaintiffs properly cancelled the agreement in accordance with its terms. Therefore, by entering final summary judgment in favor of the plaintiffs on their claim for breach of contract, the first final judgment necessarily rejected the counterclaim that the plaintiffs breached the contract by failing to close on the condominium unit.

Because the Order Granting Plaintiffs Motion for Summary Judgment constituted the final judgment in this case, the trial court did not have jurisdiction to enter a second final judgment after the first final judgment was affirmed on appeal. “Except as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or vacate an order or judgment.” Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1, 3 (Fla.1970); Bank One, N.A. v. Batronie, 884 So.2d 346, 348 (Fla. 2d DCA 2004) (“After rendition of a final judgment, the trial court loses jurisdiction over the case except to enforce the judgment and except as provided by rule 1.540.”).

Here, the second final judgment was not entered pursuant to either Rule 1.530 or Rule 1.540. Moreover, although a trial court is allowed to reserve jurisdiction in a final judgment to award prejudgment interest, see Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So.3d 567, 574-75 (Fla.2010), in this case the first final judgment did not reserve jurisdiction to award prejudgment interest. Furthermore, the plaintiffs did not timely file a motion for attorney’s fees within thirty days of the first final judgment. See Fla. R. Civ. P. 1.525 (“Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.”). And because the first final judgment did not determine entitlement to attorney’s fees and costs, the plaintiffs were not excused from complying with Rule 1.525. Cf. Amerus Life Ins. Co. v. Lait, 2 So.3d 203, 207-08 (Fla.2009) (holding that rule 1.525 does not apply when the trial court has determined entitlement to attorneys’ fees and costs in its final judgment, but reserves jurisdiction only to determine the amount in attorneys’ fees and costs that is owed). Therefore, the trial court had no authority to enter the second final judgment, which served to modify the first final judgment.

In sum, because the second final judgment was not entered pursuant to either Rule 1.530 or Rule 1.540, the trial court had no authority to enter a second final judgment after the first final judgment was affirmed on appeal. We reverse and remand with directions that the trial court vacate the final judgment dated September 23, 2010.

Reversed and Remanded.

GERBER and LEVINE, JJ., concur.


source: Caselaw Access Project

author: CORTINAS, J.

license: Public Domain

text:
    F.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-186.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before CORTINAS, LAGOA, and EMAS, JJ.
   CORTINAS, J.

While in school, twelve year-old F.R. stated that because the victim was wearing a blue shirt, he was therefore a “Crip” and F.R. was going to stab him. Two days prior to this incident, F.R. had told the victim that he had previously been in jail for stabbing someone. The victim asked what F.R. intended to use to stab him, and F.R. produced a folding knife from a pocket in his cargo pants. F.R. opened the blade and held it inches from the victim’s thigh. The victim raised his hand and asked to be excused from class, and immediately reported the incident to the school principal. The principal informed the dean of school discipline, who asked F.R. whether he had a weapon. F.R. admitted that he did, and produced the knife.

F.R. now appeals his conviction for possession of a concealed weapon pursuant to Florida Statutes section 790.01(1), “a person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree.” (2010). He argues that the trial court should have granted his motion for judgment of dismissal because section 790.001(18) excludes from the definition of weapon “a common pocketknife.” We affirm.

For the purposes of section 790.001(13), the Florida Supreme Court has clarified that a pocketknife is “a type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.” L.B. v. State, 700 So.2d 870, 372 (Fla.1997). The only other characteristic considered in L.B. was the length of the blade, though no bright line rule was articulated. On the basis of an opinion by the Attorney General that a pocketknife with a blade of four inches in length or less was a common pocketknife, the Florida Supreme Court vacated the conviction of the appellant, noting “neither the Attorney General nor this Court maintains ... a bright line cutoff for determining whether a particular knife is a ‘common pocketknife.’ We merely hold that appellant’s knife fits within the exception.” Id. at 373 n. 4. Ultimately, the question of whether a knife falls within the exception is not a legal conclusion, but remains a question for the fact finder. Id. at 372.

In the instant case, the officer who responded to the school incident testified that the knife could seriously injure a person. When asked if the knife could be called a common pocketknife, the officer testified that it could not. The blade of the knife was just shy of three inches long, with serrations along a portion of one side. The handle was curved, with grooves to accommodate a user’s fingers (a “notched grip”). There was a long screw protruding from the handle, which served as a makeshift hilt guard. When opened, the blade of the knife locks in an open position. Indeed, we have inspected the knife and find that the trial court was entirely correct in its determination that this was not a “common pocketknife.”

These characteristics have been found by various Florida courts to be those of a knife that does not qualify for the exception. The Florida Supreme Court has found that a blade that can be locked in an open position would not be a characteristic of a common pocketknife. Bunkley v. State, 882 So.2d 890, 891 (Fla.2004). This Court has found that a knife “which has a distinctive weapon-like characteristic such as a hilt guard or notched combat-style grip, does not fall within the common pocketknife exception.” J.R.P. v. State, 979 So.2d 1178, 1179 (Fla. 3d DCA 2008). We have also found a knife with these characteristics to be distinctly unlike the knife which qualified for the exception in L.B.:

The judge described J.D.L.R.’s knife as a folding knife with a pointed 3½ inch blade, notched combat-style grip and large metal hilt guard (to prevent the user’s fingers from sliding onto the blade). In contrast, the knife in L.B. ... was merely described as a folding “buck knife” with a 3¾ inch blade and an overall length of 8½ inches.

J.D.L.R. v. State, 701 So.2d 626, 626-27 (Fla. 3d DCA 1997).

F.R. concedes that the knife would not qualify for the exception while it was out, open, and being used to assault the victim, but insists that while the knife was closed and in F.R.’s pocket, it would not constitute a weapon for the purposes of a conviction of possession of a concealed weapon. This argument fails. The indelible characteristics of this particular knife, which are its notched grip, its locking blade mechanism, and its hilt guard, remain present even when the knife was concealed, thus eliminating this knife from the realm of ordinary pocketknives.

Affirmed.

      . F.R. was also convicted of possession of a weapon on school grounds and assault with a deadly weapon, neither of which is under review on appeal.

      . The Fourth District Court of Appeal has recently found that a knife with a three-and-one-quarter inch, partly serrated blade, with a grooved handle to allow a secure grip, would qualify for the exception, particularly when, as here, it is not carried in an open and locked position. T.S.W. v. State, 82 So.3d 1021, 2011 WL 3586168 (Fla. 4th.DCA, 2011). However, this determination is a factual question, and L.B. specifically held that judges and juries may reach inconsistent conclusions: "it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept.” L.B., 700 So.2d at 373 (quoting Roth v. United States, 354 U.S. 476, 492 n. 30, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)).


author: RAMIREZ, J.

text:
    Damon DARLING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-122.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

Damon Darling appeals his conviction after a jury trial of manslaughter and aggravated assault. We affirm.

On July 1, 2006, Leroy LaRose drove to a Liberty City housing project to buy marijuana. He carried a revolver with him, because he previously had encountered gun fire when visiting the area. He exited his vehicle toward the location where he intended to buy marijuana, but his source was not at the location. During his walk, he was confronted from afar by someone who inquired regarding his purpose. From afar, both parties escalated the conflict by firing their weapons at each other. A bystander was killed during the shootout. Darling was later arrested, and went to trial before a jury on charges of: second degree murder of the bystander, with manslaughter as a lesser included offense; and attempted second degree murder of LaRose, with attempted manslaughter, aggravated assault and aggravated battery as lesser included offenses.

The defense contended Darling was not responsible for the deadly shooting because he fired in response to a perceived threat from the other shooter. The defense moved for dismissal before the trial, based upon “stand your ground” immunity. The trial court denied the motion, and consequently Darling was tried for the offenses. After trial, the jury found Darling guilty of manslaughter of the bystander, and aggravated assault of LaRose, and further, that he possessed a firearm in connection with the death of the bystander and discharged a firearm in connection with the aggravated assault.

The day after the jury verdict, an anonymous caller phoned defense counsel’s office, and claimed that two jurors, who had not disclosed in voir dire they knew each other, were overheard stating their intent to convict regardless of the evidence. Defense counsel later received a second call, in which the caller identified himself and contended that he would testify to what he heard. Defense counsel filed a motion to interview the jurors, supported by an affidavit from his secretary who received the calls. The trial court denied the motion, together with defense’s motion for new trial.

Although the defendant raises numerous claims of trial court error on appeal, we only address the following issues: 1) denial of Darling’s “stand your ground” motion; 2) denial of Darling’s motion to interview jurors; and 3) admission of evidence regarding Darling’s status as a convicted felon.

The “stand your ground” immunity

Under Florida law, “[a] person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” § 776.013(3), Fla. Stat. (2007). Additionally, the person is immune from criminal prosecution under these circumstances. § 776.032(1), Fla. Stat. (2007); Dennis v. State, 51 So.3d 456, 462 (Fla.2010).

When the defendant invokes the statutory immunity, the trial court must hold a pre-trial evidentiary hearing to determine if the preponderance of the evidence warrants immunity. See State v. Yaqubie, 51 So.3d 474, 476 (Fla. 3d DCA 2010). At this stage, therefore, the trial court must weigh and decide factual disputes as to the defendant’s use of force to determine whether to dismiss the case based on the immunity. Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008). The defendant bears the burden of proof on the issue of whether immunity attaches to his actions. Id. On appeal, the trial court’s legal conclusion is reviewed de novo, but its findings of fact are presumed correct and can be reversed only if not supported by competent substantial evidence. Id.; see also Loredo v. State, 836 So.2d 1103, 1104 (Fla. 2d DCA 2003).

In this case, the trial court complied with the procedure required for pretrial motions alleging immunity under section 776.032. The trial court held an evidentiary hearing, considered the disputed issues of fact, and on the record, announced its findings that the preponderance of the evidence did not support immunity. The trial court’s factual determinations were supported by substantial competent evidence, and its legal conclusions were not erroneous. As a result, we reject Darling’s argument the trial court’s denial of immunity was reversible error.

The juror interview

“Dealing with allegations of juror misconduct is within the discretion of the trial court.” Boyd v. State, 910 So.2d 167, 178 (Fla.2005). The trial court must determine whether the allegations relate to matters that inhere in the verdict, which cannot be probed, or are extrinsic to the verdict, for which an inquiry may be made. Id.; Devoney v. State, 717 So.2d 501, 502 (Fla.1998). If matters are extrinsic to the verdict, the trial court may either make an inquiry, or refuse to inquire because the allegations are “frivolous or incredible.” Boyd, 910 So.2d at 178 (quoting Marshall v. State, 854 So.2d 1235, 1240 (Fla.2003)). “A trial court has the discretion not to make an inquiry when it concludes that misconduct allegations are not credible.” Id. The trial court’s decision not to conduct an inquiry survives appellate review if it is supported by competent substantial evidence. Id.

In this case, the trial court’s conclusion is supported by competent substantial evidence, and thus, we conclude the trial court did not abuse its discretion in rejecting Darling’s request for juror interviews. The evidence regarding the information the caller provided was presented through the person who received the calls. The defendant never proffered any direct evidence in support of his contention that the jury was tainted. Among other elements, the trial court considered the secondhand nature of the allegations, and the trial court’s own direct and regular interactions with the jurors. Thus, there was no error in denying the motion for juror interview.

Convicted felon evidence

“A trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Alston v. State, 728 So.2d 148, 156 (Fla.1998). Evidence is admissible if relevant, and relevant evidence is evidence that relates to proof of a material fact. §§ 90.401.402 Fla. Stat. (2009); Alston, 728 So.2d at 156. “As a practical matter, generally any evidence introduced by the State during a criminal prosecution is prejudicial to a defendant.” Wright v. State, 19 So.3d 277, 296 (Fla.2009). Thus, to determine whether relevant evidence should be excluded, Florida law requires “a balancing test by the trial judge,” and “[o]nly when the unfair prejudice substantially outweighs the probative value of the evidence must the evidence be excluded.” Alston, 723 So.2d at 156.

Collateral crime evidence, such as a defendant’s previous felony conviction, should not be used where it cannot be tied to necessary proof in the case before the jury, because it risks prejudicing the jury regarding the defendant’s propensities as a criminal. See, e.g., Crossley v. State, 596 So.2d 447, 450 (Fla.1992). This is the reason for severing a charge of possession of a firearm from a convicted felon’s other charges. See, e.g., State v. Vazquez, 419 So.2d 1088 (Fla.1982).

However, “evidence that is inextricably intertwined with the crimes charged is admissible ... where it is impossible to give a complete and intelligible account of the crime charged without referring to the other crime.” Monestime v. State, 41 So.3d 1110, 1112 (Fla. 3d DCA 2010). “Evidence is inextricably intertwined if the evidence is necessary to (1) adequately describe the deed, (2) provide an intelligent account of the crime(s) charged, (3) establish the entire context out of which the charged crime(s) arose, or (4) adequately describe the events leading up to the charged crimes.” Id. But, “even when inextricably intertwined, such evidence cannot become a feature of the trial” because it unfairly distracts the jury from the central issues in the case instead of providing the necessary context in evaluating the State’s case. Wright, 19 So.3d at 293.

Justification for using deadly force in self defense, which includes the “stand your ground” defense, does not apply to a person who provokes the attack. § 776.041(2), Fla. Stat. (2007). There are only two exceptions to this rule: (1) where there is no means of escape other than the use of deadly force, or (2) if the provoking person withdraws from physical contact or unequivocally indicates his desire to withdraw from the confrontation and the alleged victim continues or resumes the use of force. Id. Moreover, the “stand your ground” law specifically requires that the person invoking the defense “not [be] engaged in an unlawful activity.” § 776.013(3); see also Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011) (holding that possession of a firearm by a convicted felon qualifies as an unlawful activity within the “stand your ground” law). The question of self defense is ordinarily one for the jury. Payton v. State, 200 So.2d 255, 256 (Fla. 3d DCA 1967); see also Liotta v. State, 939 So.2d 338, 334 (Fla. 4th DCA 2006).

In this case, the trial court determined that evidence of Darling’s convicted-felon status was admissible so that the jury could properly evaluate whether Darling’s use of force was justified under the circumstances. Although the trial court initially and properly severed the charge of possession of weapon by a felon, subsequently, it became evident that to decide the issue of self-defense the jury should know that Darling’s possession of the weapon was not lawful because he had a prior felony conviction. The witnesses gave differing accounts of how the shootout occurred and Darling’s role in the shootout. Darling’s possible unlawful possession of a firearm could be considered by the jury in determining the credibility of Darling’s explanation. Additionally, although referenced in closing argument, the evidence was not a central feature of the trial.

For similar reasons, the stipulation regarding severance does not make erroneous the trial court’s admission of the evidence regarding Darling’s felony conviction. The stipulation was made before trial. Circumstances changed, when Darling’s presentation of his case affected the State’s ability to prove its case without reference to the felony conviction. The trial court crafted a framework for the presentation of Darling’s felony conviction in response to the State’s efforts to adjust proof of its case.

The trial court correctly balanced the prejudice to Darling against the evidence’s relevance. The State’s evidence suggested Darling was prepared with a weapon, in the event suspected efforts to end a previous dispute might go sour. Darling suggested he simply responded to LaRose’s aggression in self-defense. The trial court could reasonably conclude that in light of these dueling explanations, the circumstances under which Darling came to possess a weapon, including that he was legally prohibited from such possession in his daily life, were necessary to the jury’s understanding. Thus, the trial court did not abuse its discretion in permitting the evidence.

We affirm Darling’s convictions, as the trial court’s actions did not result in reversible error.

Affirmed.


author: EMAS, J.

text:
    Francisco MENDOZA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-153.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.

      Francisco Mendoza, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Defendant Francisco Mendoza appeals the trial court’s order denying, without an evidentiary hearing, his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Mendoza’s motion raised six claims. While we find that none of the claims has merit, one of Mendoza’s claims does warrant further discussion.

Mendoza asserted in his posteonviction motion that trial counsel rendered ineffective assistance of counsel for failing to call certain witnesses to testify at the trial, and that such failure constituted deficient performance resulting in prejudice, warranting relief under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Whether to call a particular witness to testify at trial is ordinarily a strategic decision committed to the professional judgment of trial counsel, assuming that counsel has conducted a reasonable investigation before making such a decision. These strategic decisions are generally not subject to postconviction attack under Strickland.

An ineffective assistance claim for failure to call a witness to testify at trial must be distinguished from an ineffective assistance claim for failure to reasonably investigate and locate witnesses. Unlike the strategic decision to call a witness to testify at trial, the failure to reasonably investigate and locate witnesses can often serve as a colorable claim of ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (observing that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary” (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052)).

However, if a reasonable investigation has been conducted, subsequent decisions based on that investigation (such as the decision not to call a particular witness at trial) are presumed to be reasonable and strategic and are “virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A defendant can rebut this presumption only by establishing that “no competent counsel” would have made the same decision. White v. State, 729 So.2d 909, 912 (Fla.1999). See also Windom v. State, 886 So.2d 915, 922 (Fla.2004) (“A strategic or tactical decision is not a valid basis for an ineffective claim unless a defendant is able to show that no competent trial counsel would have utilized the tactics employed by trial counsel.”).

In the instant case, however, Mendoza does not claim that the underlying investigation of these witnesses was unreasonable. Rather, Mendoza claims that trial counsel knew what these witnesses would testify to, and the failure to call the witnesses met Strickland’s two-prong requirements of constitutionally deficient performance and actual prejudice. Given the reasonableness of the underlying investigation, the subsequent decision not to call these witnesses is presumed to be reasonable and strategic, and, as characterized by Strickland, is virtually unchallengeable. Mendoza has failed to overcome this presumption, and thus cannot establish that trial counsel’s performance was deficient under Strickland.

Moreover, the record reveals that Mendoza affirmatively agreed with his trial counsel’s strategic decision. During trial, the court conducted a colloquy with Mendoza, on the record and outside the presence of the jury, which established that Mendoza agreed with the decision not to call any other witnesses at trial. The trial court specifically asked Mendoza whether he was satisfied with his attorney’s performance at trial and whether Mendoza wished to call any other witnesses to testify. Mendoza expressed satisfaction with his counsel’s performance, and advised the court that he did not wish to call any other witnesses to testify.

Thus, not only is Mendoza unable to rebut the presumption that counsel’s decision was reasonable and strategic, Mendoza’s express agreement to such a decision is fatal to his claim of ineffective assistance of counsel. See Gamble v. State, 877 So.2d 706, 714 (Fla.2004) (holding “if the defendant consents to counsel’s strategy, there is no merit to a claim of ineffective assistance of counsel”). See also Stein v. State, 995 So.2d 329 (Fla.2008).

Affirmed.

      . Mendoza also asserted trial counsel rendered ineffective assistance by: (1) failing to introduce the post-Miranda statement of the co-defendant; (2) failing to object to the State’s amendment of the information during trial; (3) abandoning his objections to the jury instructions as given; (4) failing to object to improper closing argument; and (5) failing to request a jury instruction on the lesser-included offense of aggravated assault.

      . We commend the trial court for conducting such a colloquy, which ensured defendant’s participation in his trial counsel’s decision, and provided a record that permitted resolution of this claim without the need for an evidentiary hearing.

      . Although Mendoza did mention, during this colloquy, the names of individuals who were unavailable or unwilling to come to court to testify, Mendoza does not base the instant claim on a failure to call those unavailable or unwilling witnesses.

      . Of course, Mendoza's agreement was not required for this particular decision. As the United States Supreme Court observed in Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004):
      An attorney undoubtedly has a duty to consult with the client regarding "important decisions," including questions of overarching defense strategy. Strickland, 466 U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. That obligation, however, does not require counsel to obtain the defendant's consent to "every tactical decision.” Taylor v. Illinois, 484 U.S. 400, 417-418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (an attorney has authority to manage most aspects of the defense without obtaining his client's approval). But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, this Court affirmed, has "the ultimate authority” to determine "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring). Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.


author: KELLY, Judge.

text:
    George M. BOWDOIN, Individually, and as natural guardian and next friend of Britney Bowdoin, Appellant, v. Mary L. RINNIER, Appellee.
    No. 2D10-3413.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2012.

      Susan W. Fox of Fox & Loquasto, P.A., Orlando; and Louis D. Putney, Tampa, for Appellant.
    Kennan G. Dandar of Dandar & Dandar, P.A., Tampa, for Appellee.
   KELLY, Judge.

Cynthia Bowdoin died intestate leaving her husband, George Bowdoin, and minor child as the sole heirs of her estate. The decedent’s mother, Mary Rinnier, filed a petition for administration requesting appointment as personal representative of her daughter’s estate. Mr. Bowdoin filed a counterpetition for administration seeking the appointment as the decedent’s surviving spouse. After a hearing, the circuit court granted Ms. Rinnier’s petition. Because we conclude the court abused its discretion in making the appointment, we reverse.

Section 733.301, Florida Statutes (2010), sets forth the order of preference for appointing a personal representative of an intestate estate as follows:

1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree.

§ 733.301(l)(b). Here, the circuit court recognized that Mr. Bowdoin has priority as the surviving spouse. However, rather than appointing Mr. Bowdoin as personal representative, the court determined that it was in the best interest of all parties that Ms. Rinnier be appointed.

A circuit court has discretion to appoint someone other than the preferred person as personal representative of an intestate estate. In re Estate of Snyder, 333 So.2d 519, 520 (Fla. 2d DCA 1976); Garcia v. Morrow, 954 So.2d 656, 658 (Fla. 3d DCA 2007). However, where a statutorily preferred individual is not appointed, the record must show that the preferred person is not fit to serve as personal representative. DeVaughn v. DeVaughn, 840 So.2d 1128, 1133 (Fla. 5th DCA 2003). If the record supports the conclusion that the preferred person “lacks the necessary qualities and characteristics” to act as personal representative, the court has discretion to refuse to make the appointment. Padgett v. Estate of Gilbert, 676 So.2d 440, 443 (Fla. 1st DCA 1996).

Ms. Rinnier produced no witnesses or evidence at the hearing to show that Mr. Bowdoin was disqualified from serving. Although we understand the dilemma faced by the circuit court given the serious nature of the allegations contained in Ms. Rinnier’s petition, she was nevertheless required to support those allegations with evidence. In the absence of such an eviden-tiary basis, the circuit court was not free to appoint someone other than Mr. Bow-doin. We therefore reverse the circuit court’s appointment of Ms. Rinnier and remand for an evidentiary hearing to determine whether Mr. Bowdoin, as the person having statutory preference, lacks the necessary qualities to administer his wife’s estate. See id.

Reversed and remanded with directions.

DAVIS and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    Ari PALEWSKY, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, on behalf of Rachel Miller, Appellee.
    No. 3D11-2420.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.
    Ari Palewsky, in proper person.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Tallahassee, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ and SALTER, JJ.
   PER CURIAM.

The appellant, Ari Palewsky, in this appeal from an order approving a magistrate’s report determining paternity and awarding child support, submits that, because the mother had not filed a financial affidavit, the trial court erred in determining the child support award. The appellee, the Department of Revenue, concedes that, in accordance with rule 12.285, Florida Family Law Rules of Procedure, both parties’ financial affidavits must be a part of the record, but argues that the absence of the mother’s affidavit was harmless error. Concluding that this error may not be considered harmless in this case, we reverse the support award and remand for an evidentiary hearing on the amount of support to be awarded.

In any proceeding for an initial request for permanent financial relief, including a request for child support, rule 12.285(e)(1), Florida Family Law Rules of Procedure, requires the filing of a financial affidavit by both parties and provides that this requirement cannot be waived. The Department of Revenue, citing Vaccaro v. Vaccaro, 677 So.2d 918, 923 (Fla. 5th DCA 1996), contends that, due to the appellant’s failure to file a transcript of the hearing, the record does not reflect whether Palew-sky objected to the absence of the mother’s financial affidavit and Palewsky has also failed to demonstrate prejudice. This argument, however, is unavailing given that rule 12.285(e)(1) does not allow a party to waive the filing of a financial affidavit, and, consequently, the presence or absence of Palewsky’s objection is irrelevant. See Daniel v. Daniel, 922 So.2d 1041, 1043 (Fla. 4th DCA 2006) (“The rule leaves no room for doubt that the filing of a financial affidavit is both mandatory and non-waiva-ble by the parties.”).

The Department of Revenue additionally argues that because minimum wage income was imputed to the mother, the absence of the financial affidavit is harmless error. While imputing minimum wage may be appropriate in some cases, without a financial affidavit, the trial court does not have a party’s formal, sworn financial position and cannot accurately determine whether imputing minimum wage income is appropriate in the case before the court. See Magann v. Magann, 848 So.2d 496, 497-98 (Fla. 2d DCA 2003) (concluding that without submitting the former wife’s financial affidavit into evidence the trial court could not determine the proper child support award).

As for the paternity determination, Pa-lewsky does not contest this issue on appeal, and, in addition, this Court has previously affirmed the lower court on this issue, Palewsky v. Department of Revenue, 61 So.3d 1227 (Fla. 3d DCA 2011). This determination is law of the case and we therefore affirm. See Valsecchi v. Proprietors Ins. Co., 502 So.2d 1310, 1311 (Fla. 3d DCA 1987) (recognizing that the law of case doctrine precludes consideration of points of law which were adjudicated in a prior appeal of same case).

The order on appeal is reversed in part, affirmed in part, and remanded for further proceedings in accordance with this opinion.


text:
    G.U., the mother, Appellant, v. The DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D11-2557.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.

      Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Miami, for appellant.
    Karla Perkins, Miami, for the Department of Children and Families; Hillary S. Kambour, for the Guardian Ad Litem Program.
    Before CORTIÑAS, EMAS and FERNANDEZ, JJ.
   EMAS, J.

The mother, G.U., appeals an order of adjudication of dependency as to her two minor children, E.A. and B.A. We affirm.

The Department of Children and Families filed a petition for adjudication of dependency following allegations that the father of the children had sexually abused them. After an evidentiary hearing, the trial court entered an order of dependency, finding the children had been “abused, abandoned and/or neglected pursuant to Florida Statute Chapter 39.” We conclude there is competent, substantial evidence to support this finding under sections 39.01(15)(a) and (32)(f), Florida Statutes (2009).

The mother admitted at the hearing that she does not believe her husband abused their daughters and does not believe she or the children need therapy. The mother also testified that she would like the father to move back into the family home with her and the children. Finally, the court-appointed psychologist testified that the children were being emotionally harmed by their mother’s refusal to believe their accusations against the father, and need to participate in family therapy with their mother. It is clear from the mother’s testimony that she will not seek therapy for herself or her children unless she is ordered to do so. Furthermore, the likelihood that the mother will allow the father’s return to the family home places the children’s emotional health in danger of significant impairment. See § 39.01(44), Fla. Stat. (2009).

Accordingly, we affirm the order of adjudication of dependency.

      . We find it unnecessary to address the trial court's additional finding that the children were "emotionally abandoned” by the mother, but note that such a finding, in and of itself, does not provide a basis for dependency under Chapter 39.

      . The children remain in the custody of the mother, and both individual and group therapy were ordered by the court in the adjudicatory order.


text:
    Hyman McWILLIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3367.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.
    Hyman McWillie, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Little v. State, 11 So.3d 722 (Fla. 3d DCA 2011), and cases cited therein.


text:
    Jose RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-33.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.
    Ricardo Corona, Coral Gables, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    A.V., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-270.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before EMAS and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Prestley v. State, 896 So.2d 862, 864 (Fla. 5th DCA 2005) (“Occupants of a car differ from, for example, customers in a store or passengers on a public bus. Occupants of a private vehicle are traveling together by choice and thus may be assumed to have some personal or business association with one another. Knowledge or suspicion that one of the occupants has been involved in criminal activity occurring within the car, or involving the car itself, serves as a basis for a reasonable suspicion that the other occupants may be participants in that activity. Therefore, we conclude that since the officers had a reasonable suspicion that the car was stolen, they had a basis for stopping and questioning the passengers in the vehicle, including the Juvenile.”) (quoting People v. H.J., 931 P.2d 1177, 1182 (Colo.1997) (internal citation omitted)). See also O.B. v. State, 36 So.3d 784, 788 (Fla. 3d DCA 2010) (“Flight can support a resisting charge if the state proves that (1) the officer had an articulable well-founded suspicion of criminal activity that justifies the officer’s detention of the defendant, and (2) the defendant fled with knowledge that the officer intended to detain him or her.”) (quoting V.L. v. State, 790 So.2d 1140, 1142-43 (Fla. 5th DCA 2001)).


author: SHEPHERD, J.

text:
    David J. HIGGINS, Appellant, v. David J. RYAN, et al., Appellees.
    No. 3D11-457.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.
    Buchanan Ingersoll & Rooney, and Mark S. Auerbacher, Miami, for appellant.
    Mark A. Dienstag, Miami, for appellee Tony Warburton; David J. Ryan, in proper person.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ORDER DISMISSING APPEAL

SHEPHERD, J.

The order on appeal, titled “Order Upon the Issue of Ownership of the Irish Times, Inc.,” states:

The Court [fjinds and [ojrders that the ownership of The Irish Times, Inc. is vested in the following person and the percentage as set forth hereinafter:
David J. Higgins 45%
David J. Ryan 45%
Tony Warburton 10%

In response to our sua sponte order to show cause why his appeal should not be dismissed for lack of jurisdiction, the Appellant, David J. Higgins, asserts that the order is an appealable non-final order reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). We disagree and dismiss the appeal.

Rule 9.130(a)(3)(C)(ii) allows for review of non-final orders that determine “the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment[.]” The instant order does not order disbursement of any funds or determine any right to immediate possession of property. It is simply an interlocutory order in which a trial court has given its opinion of the percentage of ownership held by three persons in Irish Times, Inc.

In his response to this court’s order to show cause why the appeal should not be dismissed for lack of jurisdiction, Higgins states, “This ruling is critical as it relates to the amounts to be paid for the purchase of the stock in the company, among other related issues.” The order does no such thing. It does not mention any amount to be paid for the purchase of stock. Cf. Malek v. Bright, 7 So.3d 598 (Fla. 3d DCA 2009) (clarifying that a “sum of money” is property to which Rule 9.130(a)(3)(C)(ii) applies); accord Greene v. Borsky, 961 So.2d 1057 (Fla. 4th DCA 2007); see also Corzo v. Pineiro, 990 So.2d 1177 (Fla. 3d DCA 2008) (dismissing case where trial court did not “determine” party’s right of possession). Here, the parties’ respective claims to immediate possession remain subject to determination. See Miami-Dade Cnty. v. Perez, 988 So.2d 40 (Fla. 3d DCA 2008). The rule cited by Appellant “allows appeal[s] only of orders which more directly determine the immediate right to possession than the type of order entered in this case.” See Marina Bay Hotel & Club, Inc. v. McCallum, 733 So.2d 1133, 1134 (Fla. 4th DCA 1999)

Appeal dismissed.


text:
    Richard WILLIAMS, Appellant, v. Lauren LUTRARIO, Appellee.
    No. 4D10-4672.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Gary Israel, Orlando, for appellant.
    Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for appellee.
   PER CURIAM.

We affirm the final judgment of paternity in all respects but two. The judgment failed to give the father credit for $850 in child support payments, and on remand, in an amended final judgment, that amount should be set off against the child support arrearages. Next, although the court awarded the father the IRS income tax exemption in “odd-numbered calendar years,” the judgment should indicate that the mother, the custodial parent, is required to execute a waiver of the dependency exemption, only if the father “is current in support payments.” § 61.30(11)(a)(8), Fla. Stat. (2011); Salazar v. Salazar, 976 So.2d 1155, 1158 (Fla. 4th DCA 2008).

Reversed and remanded.

GROSS, CIKLIN and LEVINE, JJ„ concur.


text:
    Michael Anthony SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-382.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2012.
    Michael Sigman and John C. Notari, of Law Offices of Sigman, Sigman, Notari & Sigman, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The appellant, Michael Anthony Smith, appeals the judgment and sentence of the trial court imposed upon him as a result of his no contest plea to vehicular homicide. At the time he entered his plea Mr. Smith failed to reserve his right to appeal the issues he considers to be legally dispositive and which he now asks this court to review. As he gave up his right to a direct appeal of these issues when he entered his plea, we dismiss the appeal. See §§ 924.051(4), 924.06(3), Fla. Stat. (2010); Fla.R.App. P. 9.140(b)(2)(A).

APPEAL DISMISSED.

SAWAYA, PALMER and MONACO, JJ., concur.


text:
    Arthur CARRERAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1777.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Arthur Carreras [“Carreras”] appeals his judgment and sentence for tampering with physical evidence, possession of twenty grams or less of cannabis, and possession of drug paraphernalia. He argues that his conviction for possession of twenty grams or less of cannabis, and for possession of drug paraphernalia, should be vacated because section 893.101, Florida Statutes (2009) has been held to be facially unconstitutional in Shelton v. Secretary, Dep’t of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011).

Testimony was presented during the trial that on November 5, 2010, a pick-up truck took a turn too close, causing the driver’s side exterior mirror of the pick-up truck to hit the driver’s side exterior mirror of a patrol vehicle. The law enforcement officer driving the patrol vehicle observed a white male with a beanie cap in the driver’s seat of the pick-up truck, and a black male in the passenger’s seat of the pick-up truck. The officer followed the pick-up truck and observed the pick-up straddling two lanes. When the officer put on the patrol vehicle’s emergency lights to effect a traffic stop, the pick-up truck began to erratically brake and swerve. The officer observed objects simultaneously being thrown out of the driver’s side and passenger’s side window. The object thrown out of the driver’s side window appeared to be larger than that thrown out of the passenger’s side window, and was released by a white hand. A second law enforcement officer, who was following the first officer,, observed an object being thrown out of the driver’s side and passenger’s side window of the pick-up truck. While the first officer was effecting a traffic stop, the second officer immediately stopped and retrieved the thrown objects, which were two bags. The second officer took the bags to the site of the traffic stop and gave them to the first officer who, upon visual inspection of the bags, recognized the substance in each to be cannabis. The contents of each bag field tested positive for cannabis. The first officer identified Carreras as the driver of the pick-up truck.

At trial, Carreras raised lack of knowledge of the illicit nature of the controlled substance as an affirmative defense to the charge of possession of twenty grams or less of cannabis and the charge of possession of drug paraphernalia. The trial court instructed the jury on the affirmative defense with respect to each of the said charges. The jury returned a verdict of guilty on each of the counts. We do not credit Carreras’ claim that the statute under which he was convicted is facially unconstitutional. To the contrary, this case is an illustration of the logic and propriety of section 893.101, Florida Statutes. We have already rejected the reasoning of the Shelton case. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We find no merit on the other issues raised by Carrer-as and decline to address them.

AFFIRMED.

GRIFFIN, TORPY and LAWSON, JJ„ concur.

      . We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011).


text:
    David Edward CLINTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-59.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2012.

      David Edward Clinton, Blountstown, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order rendered on January 24, 2011 in case no. 05-2007-CF-05S786-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, LAWSON and COHEN, JJ., concur.


author: MONACO, J.

text:
    William A. EVANS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-75.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2012.
    William A. Evans, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach for Respondent.
   MONACO, J.

The petitioner, William Evans, seeks a belated appeal based on his assertion that his appellate counsel was ineffective. We grant the petition.

The petitioner contends that his sentence was technically terminated when the Department of Corrections failed to award him proper jail credit. The trial court agreed and ordered the Department to apply the appropriate credit being sought. Prior to his release from prison, however, the State filed a petition seeking his civil commitment pursuant to the Ryce Act, sections 394.910-.931, Florida Statutes (2010). Mr. Evans then asserted that in accordance with Larimore v. State, 2 So.3d 101 (Fla.2008), the trial court did not have jurisdiction over him for the purposes of the Ryce Act. Thereafter, Mr. Evans agreed to voluntary commitment, but reserved the Larimore issue for appeal.

Mr. Evans then retained private appellate counsel, and indeed an appeal was filed on his behalf. This court, however, dismissed the appeal for failure to prosecute. Mr. Evans now seeks a new appeal based on the ineffective assistance of his appellate counsel. The State admirably agrees that the petitioner was constructively denied any assistance of counsel on appeal, and suggests that the petition should be granted. See Harris v. Day, 226 F.3d 361, 364 (5th Cir.2000).

Accordingly, we grant the petition for belated appeal. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No.2006MH-000949, in the Circuit Court in and for Citrus County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION FOR BELATED APPEAL GRANTED.

TORPY and JACOBUS, JJ„ concur.


text:
    Mark Ivan ROCKMORE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-191.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2012.
    Robert Wesley, Public Defender, and Kimberly A. Andre, Assistant Public Defender, Orlando for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number ll-CF-10045-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, MONACO and LAWSON, JJ., concur.


text:
    Quinta Kante WRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-192.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2012.
    Robert Wesley, Public Defender, Orlando and Kimberly A. Andre, Assistant Public Defender, Orlando for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number CF-11-5568-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, C.J., GRIFFIN and PALMER, JJ., concur.


text:
    Neil R. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4796.
    District Court of Appeal of Florida, First District.
    March 2, 2012.
    Neil R. Thompson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The Appellant seeks review of an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because we find the Appellant’s arguments relating to count I of his sentence merit-less, we affirm without further discussion. However, the State properly concedes error as to count II. Therefore, we reverse.

The Appellant was convicted and sentenced of aggravated assault (count I) and shooting or throwing deadly missiles (count II), and was sentenced to concurrent terms of three years’ imprisonment on both counts, with a three-year minimum mandatory term on count I. This Court reversed and remanded for the imposition of the statutorily mandated 20-year minimum mandatory on count I, during which a firearm was discharged. State v. Thompson, 4 So.3d 689 (Fla. 1st DCA 2009). On remand, the lower court resen-tenced the Appellant on count I accordingly. However, the lower court also resen-tenced the Appellant to a concurrent term of five years’ imprisonment on count II.

The Appellant filed the present motion contending that the resentencing on count II is illegal where that count was not reversed on direct appeal. This Court directed the State to show cause why the Appellant’s motion as to count II should not be granted, and the State responded by conceding error.

In light of the State’s concession, we hold that the trial court illegally resen-tenced the Appellant to a more onerous sentence on count II, and we remand for the reimposition of the original three-year sentence as to that count only.

AFFIRMED IN PART, REVERSED IN PART and REMANDED with instructions.

DAVIS, THOMAS, and RAY, JJ., concur.


text:
    Sylvio MONTINA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-671.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2012.

      Sylvio Montina, Lowell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Sylvio Montina appeals an order summarily denying various postconviction claims of ineffective assistance of counsel, an order denying one postconviction claim after an evidentiary hearing (Montina’s claim six), and the denial or failure to address Montina’s request for appointment of counsel prior to (or at) that evidentiary hearing. We affirm the summary denial order without further discussion, but agree with Montina that the trial court erred by failing to consider his request for the appointment of counsel to aid in the preparation and presentation of evidence on his sixth claim. See Graham v. State, 372 So.2d 1363, 1365 (Fla.1979) (“[AJlthough there is no absolute right to counsel in post-conviction relief proceedings, the [postconviction court] must determine the need for counsel and resolve any doubts in favor of the appointment of counsel for the defendant.”) (emphasis added). It is also clear, based upon the Graham factors, that counsel should have been appointed in this ease. Accordingly, we reverse the denial of Montina’s sixth claim and remand for the appointment of postconviction counsel, and for a new hearing on the claim.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

TORPY and LAWSON, JJ., concur.

GRIFFIN, J., dissents, without opinion.


text:
    Thomas E. JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3365.
    District Court of Appeal of Florida, First District.
    March 6, 2012.
    Thomas E. Jordan, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is the second time that Appellant has appealed an order ruling on the same underlying rule 3.800(a) motion. In Jordan v. State, 32 So.3d 727 (Fla. 1st DCA 2010), we reversed and remanded the order denying the motion because the trial court failed to attach documents conclusively refuting Appellant’s facially sufficient claim. Upon remand the trial court granted the motion and stated that a separate hearing would be held to resentence Appellant. Before resentencing, however, the trial judge passed away.

Seventy-seven days after the order granting the motion was entered, the State filed a motion for reconsideration raising the same arguments it had raised prior to the first judge’s granting the motion. Over Appellant’s objection, the second judge reconsidered and then denied the motion. Appellant timely appealed.

Appellant argues that the second judge lacked jurisdiction to reconsider the order entered by the first judge. We issued a Toler order directing the State to show cause why the second judge’s order should not be quashed and the case remanded for resentencing in accordance with the first judge’s order because the State’s motion for reconsideration was untimely under rule 3.800(b)(1)(B). The State filed a response “conceding] that the motion for reconsideration was untimely and the court was therefore without jurisdiction to rule upon it.”

We accept the State’s concession of error. The order entered by the first judge granting Appellant’s rule 3.800(a) motion was a final order because it brought the postconviction proceeding to an end. See State v. White, 470 So.2d 1377 (Fla.1985) (explaining that the state may appeal an order granting postconviction relief because the order brings the collateral proceeding to an end); and cf. Jones v. State, 35 so.3d 69 (Fla. 1st DCA 2010) (explaining that a resentencing after a successful rule 3.800(a) motion is a de novo proceeding); but cf. State v. Huerta, 38 So.3d 883 (Fla. 3d DCA 2010); Adams v. State, 949 So.2d 1125 (Fla. 3d DCA 2007); State v. Rudolf, 821 So.2d 385 (Fla. 2d DCA 2002); State v. Delvalle, 745 So.2d 541 (Fla. 4th DCA 1999). Accordingly, the order was subject to challenge only by way of a timely motion for rehearing or an appeal. Cf. Lormeus v. State, 10 So.3d 190 (Fla. 4th DCA 2009) (noting that an order granting the defendant’s rule 3.800(a) motion was not final for double jeopardy purposes because the state filed a timely motion for rehearing under rule 3.800(b)(1)(B)); § 924.066(2), Fla. Stat. (authorizing both the state and the prisoner to appeal an adverse ruling granting or denying collateral relief).

Here, as the State properly concedes, the motion seeking reconsideration of the first judge’s order was not timely filed and, thus, the second judge lacked jurisdiction to consider the motion. Accordingly, we quash the order on appeal and remand with directions that the trial court reinstate the first judge’s order granting Appellant’s postconviction motion and then resentence Appellant.

QUASHED and REMANDED with directions.

MARSTILLER and SWANSON, JJ„ concur; WETHERELL, J., concurs in result only.

      . Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).

      . This rule provides in pertinent part: "A party may file a motion for rehearing of any order entered under subdivisions (a) and (b) of this rule within 15 days of the date of service of the order or within 15 days of the expiration of the time period for filing an order if no order is filed.”


author: WOLF, J.

text:
    Donnie Lappale HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5889.
    District Court of Appeal of Florida, First District.
    March 6, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his convictions for dealing in stolen property and false verification of ownership on a pawnbroker transaction form. Both charges arose from the theft of an air compressor. The issue before us is whether the trial court erred in instructing the jury that proof of the sale of stolen property below the fair market value gives rise to an inference the seller knew or should have known the property was stolen, where there was no evidence presented of fair market value.

While we agree with appellant that there was no evidence presented as to the fair market value of the compressor, we disagree that giving the instruction constituted fundamental error. We, therefore, affirm.

In the instant case, the court instructed the jury, without objection:

Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.

During closing arguments, the State referenced this inference and argued, “this $35 for this [air compressor] is an indication that [appellant] knew or should have known it was stolen. This is worth a lot more than $35.” No objection was raised as to this argument.

Section 812.022(3), Florida Statutes (2009) provides, “Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.”

Appellant argues the trial court committed fundamental error in instructing the jury as to this inference because the State provided no evidence that the $35 sale of the air compressor was substantially below fair market value. He asserts this error was fundamental because it pertained to knowledge, which is an essential element of the crime of dealing in stolen property.

Appellant relies on several cases in which courts found that giving a jury instruction on a statutory inference that was not supported by the evidence was harmful error where the issue had been preserved. See, e.g., Boone v. State, 711 So.2d 594, 596 (Fla. 1st DCA 1998).

The only case appellant relies on dealing with fundamental error is Tatum v. State, 857 So.2d 331 (Fla. 2d DCA 2003), in which the Second District indicated the instruction on a statutory inference without the proper factual basis may be fundamental error. In Tatum, the defendant, a pawnshop owner, was charged with racketeering in the operation of a pawn shop under Florida’s RICO Act. Id. at 333. Some of the alleged transactions were made by the defendant himself and others were made by his employee. Id. at 333-35. The jury was instructed that proof a dealer bought or sold property “out of the regular course of business or without the usual indicia of ownership” gave rise to an inference that the dealer knew or should have known the property was stolen. Id. at 333. The Second District found this instruction was permissible only where the dealer personally made the sale, because the “inference goes to prove an essential element of the crime, the defendant’s mens rea.” Id. at 334. Thus, the Second District found the instruction was error, and it served to bolster the testimony of the State’s key witness, who was the defendant’s employee. Id. at 335.

The Second District found, “Although the State claims the issue was insufficiently preserved for appellate review, we find the error to be fundamental.” Id. at 332. The court cited Reed v. State, 837 So.2d 366, 369 (Fla.2002), in which the supreme court found it was fundamental error to instruct the jury on an inaccurate definition of malice where “the essential element of malice was disputed at trial.” The Second District, however, gave no other reason for finding the error was fundamental. Tatum, 857 So.2d at 332.

However, in Cardenas v. State, this court distinguished, “[a]n improper instruction or failure to instruct as to an essential element of a crime may rise to the level of fundamental error.” 816 So.2d 724, 727 (Fla. 1st DCA 2002) (emphasis added), approved, 867 So.2d 384 (Fla.2004). In contrast, a “challenged instruction [that] merely advised the jury of an evi-dentiary presumption or permissible inference that they were free to accept or reject” is not fundamental error. Id. (citing State v. Rolle, 560 So.2d 1154, 1156 (Fla.1990); Register v. State, 582 So.2d 762, 763 (Fla. 1st DCA 1991)). In Cardenas, the defendant argued the standard jury instruction on the presumption of impairment that arises when blood tests reveal high alcohol levels was fundamental error because a recent supreme court case found the administrative rules regulating the testing were insufficient. Id. 816 So.2d at 727. This court rejected that argument, finding the instruction “neither omitted from the definition of an offense one of the essential elements, nor misde-fined one of the essential elements of an offense.” Id. As such, the court concluded it did not appear the instruction “influenced the outcome of the trial or that the guilty verdict could not have been obtained without the improper instruction.” Id.

Here, as in Cardenas, the standard jury instruction at issue did not omit or erroneously define an essential element of the offense. It merely advised the jury that it could infer appellant knew the air compressor was stolen if he sold it substantially below the fair market value. Upon review of the record, appellant’s theory of defense was that the victim mistakenly identified the air compressor as his own, not that appellant lacked knowledge that the air compressor had been stolen. As such, giving the instruction in this case did not constitute fundamental error.

AFFIRMED.

CLARK and WETHERELL, JJ., concur.


text:
    Charles Robert GADDIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1797.
    District Court of Appeal of Florida, First District.
    March 6, 2012.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Angela R. Hensel and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Charles Gaddis, challenges his three convictions and sentences for possession of a firearm by a convicted felon. As properly conceded by the State, the appellant’s convictions and sentences violate double jeopardy because they were based on the possession of multiple firearms at the same time. See Hill v. State, 711 So.2d 1221 (Fla. 1st DCA 1998) (holding that double jeopardy precludes more than one conviction for possession of multiple firearms by a convicted felon at the same time). Accordingly, we reverse and remand with directions for the trial court to vacate two of the appellant’s convictions and sentences.

REVERSED and REMANDED for further proceedings.

THOMAS, ROBERTS, and MARSTILLER, JJ., concur.


author: CASANUEVA, Judge.

text:
    Thomas Alex WHITEHALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2871.
    District Court of Appeal of Florida, Second District.
    March 7, 2012.

      James Marion Moorman, Public Defender, and Jeanine L. Cohen, Special Assistant Public Defender, Bartow, for Appellant.
    Thomas Alex Whitehall, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

The State charged Thomas Alex Whitehall with fleeing to elude, a third-degree felony. After the speedy trial period had ended, the State filed a superseding information amending the charge to fleeing to elude with high speed or wanton disregard of persons or property, a second-degree felony. A jury convicted Mr. Whitehall of the superseding charge. Because the State could not charge Mr. Whitehall with a new offense after the speedy trial period ended, we reverse the conviction.

Facts and Procedural History

Tampa police arrested Mr. Whitehall on November 4, 2008, after they chased him on his motorcycle throughout Hillsborough County. On December 1, 2008, the State charged Mr. Whitehall with fleeing to elude, a third-degree felony. The last day of the 175-day speedy trial period fell on April 27, 2009. On May 11, 2009, Mr. Whitehall filed (1) a motion for discharge for failing to comply with speedy trial, and (2) a notice of expiration of speedy trial.

On May 18, 2009, in court, the State filed a superseding information, amending the charge to fleeing to elude with high speed or wanton disregard for the safety of persons or property, a second-degree felony. The State arraigned Mr. Whitehall on the new charge. Mr. Whitehall then sought to have his motion for discharge heard. His main argument was that he should be discharged entirely because the State had violated speedy trial. But he also argued that the State could not file the new second-degree felony charge based on the same conduct as the original third-degree felony charge because the speedy trial period had expired. The State disagreed, claiming that Mr. Whitehall waived speedy trial by accepting a trial date outside of speedy trial.

STATE: Judge, and before you address [the recapture period issue], I ask that, if we need to listen to the transcript [sic], we can, going back to the date of April the 28th [2009] where counsel accepted affirmatively to his trial date [of May 18, 2009].
COURT: A date outside of speedy trial?
DEFENSE: We actually—
COURT: Well, let me ask you a question ....

Defense counsel did not explain whether or not Mr. Whitehall actually accepted the May 18 trial date at an April 28 hearing. The trial court eventually denied the motion for discharge and proceeded to trial. Mr. Whitehall was convicted of the second-degree felony offense and the trial court sentenced him to 364 days’ county jail.

On appeal, Mr. Whitehall argues that the trial court erred in allowing the State to file an amended information charging a new offense after speedy trial had ended.

The Speedy Trial Period

Florida Rule of Criminal Procedure 8.191 provides the entitlement to and procedures for exercising speedy trial rights. Subsection (a) requires a defendant to be brought to trial within 175 days of his arrest for a felony. That means Mr. Whitehall should have been brought to trial on or before April 27, 2009. On May 11, 2009, Mr. Whitehall filed a notice of expiration of speedy trial. See Fla. R.Crim. P. 3.191(h). Once a defendant files that notice, the trial court must hold a calendar call to set the trial and ultimately bring the defendant to trial within fifteen days from the notice. Fla. R.Crim. P. 3.191(p)(3). This window gives the State an opportunity for “recapture”; a “last chance to bring the defendant to trial” before “he is forever discharged from the crime.” State v. Burnett, 870 So.2d 858, 861 (Fla. 3d DCA 2004). Here, it appears the trial court held a calendar call and set the trial for seven days after the filing of the notice on May 18. Thus, the court complied with the requirements of rule 3.191 and gave the State its opportunity for “recapture.”

Waiver

The State contends that Mr. Whitehall waived his right to speedy trial by accepting a trial date outside of the speedy trial period at an April 28, 2009, hearing. But the record before this court does not contain a transcript of this supposed hearing. In fact, the only indication that a hearing even took place on April 28 is the prosecutor’s statement at the hearing on the motion to dismiss held immediately before trial on May 18.

Affirmative acceptance of a trial date outside of speedy trial constitutes a waiver of speedy trial, as does a stipulation announced to the court, but “mere silence” by the defendant when the trial date is set does not. See Saunders v. State, 436 So.2d 166, 168 (Fla. 2d DCA 1983); State v. Swint, 464 So.2d 242, 243 (Fla. 2d DCA 1985); see also State v. Ansley, 349 So.2d 837, 838-39 (Fla. 1st DCA 1977). On the present record, there is no proof of a waiver by any of the acceptable methods. Thus we must conclude that there was none. See Martin v. State, 449 So.2d 939, 940 (Fla. 4th DCA 1984) (reversing the denial of a motion for discharge based upon a violation of speedy trial when the record contained no documentation demonstrating the defendant waived his speedy trial rights). Further, Mr. Whitehall’s counsel never concurred with the State’s position at the May 18 hearing that Mr. Whitehall had accepted any trial date. The State’s citation to its own argument at that hearing fails to prove that Mr. Whitehall previously waived his rights.

The Nature of the Offense

[I]f an amended information is filed after the speedy trial time period has expired and the defendant has not previously waived his or her right to speedy trial, then upon proper motion by the defendant, the new charges contained in the amended information must be dismissed if they arose from the same criminal episode as the charges contained in the original information.

State v. Clifton, 905 So.2d 172, 178 (Fla. 5th DCA 2005).

The State originally charged Mr. Whitehall with fleeing to elude under section 816.1935(1), Florida Statutes (2008):

(1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

On May 18, after the speedy trial time period expired, the State amended the charge to the second-degree felony fleeing to elude under section 316.1935(3):

(3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:
(a) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The State contends that its amendment was permissible because it “was merely a change in the section of the statute under which Whitehall was charged,” and that “[t]he change did not result in any prejudice.”

Neither of these contentions has merit. First, when an amended charge contains an element that the original charge did not, the amended charge is a “new” offense for the purposes of speedy trial. State v. D.A., 939 So.2d 149, 153 (Fla. 5th DCA 2006) (certifying conflict on other grounds with Insko v. State, 933 So.2d 679 (Fla. 2d DCA 2006), approved, 969 So.2d 992 (Fla.2007)). Here, the plain language of section 316.1935(3) contains additional elements that subsection (1) does not. These include an appropriately marked law enforcement patrol vehicle, lights and siren activated, and high speed or wanton disregard for the safety of persons or property. The original information did not include any language related to these elements, but the amended information did. The State did not merely change a statute number. It changed much of the wording in the charge in order to assert all the additional elements required to prove a substantially different and new offense.

Second, lack of prejudice does not have any bearing on whether an information can be amended to include a new charge after speedy trial has expired. See, e.g., D.A., 939 So.2d at 151 (holding that affirmance of a dismissal of new charges was required when speedy trial had lapsed, despite the fact that “the correetion [of the charges in the amended information] would not have prejudiced D.A.’s ability to address the merits of the State’s case in any way”). Even if a lack of prejudice was important, we cannot say that Mr. Whitehall did not suffer prejudice in this case. Until he was charged with the offense described in subsection (3) he had no reason to investigate the elements exclusive to that offense, such as whether the law enforcement officers involved were driving “authorized law enforcement patrol vehicle[s], with agency insignia and other jurisdictional markings prominently displayed,” or whether the vehicle(s) had both “siren and lights activated.” See § 316.1935(3). And the Fifth District has held that the “[f]iling [of] an amended information that contains a new charge based on the same criminal episode as the previously filed charges is certainly prejudicial.” Clifton, 905 So.2d at 178.

Conclusion

[Although the state may amend an information after the speedy trial time expires, the state may not circumvent the intent and effect of the speedy trial rule by lying in wait until the speedy trial time expires and then amending an existing information in such a way that results in the levying of new charges (if those new charges arise from the same facts and circumstances giving rise to the original charge).

Pezzo v. State, 903 So.2d 960, 962 (Fla. 1st DCA 2005). Therefore, rule 3.191’s recapture period provides a safe harbor for the State on a charge it has already levied, not on a new greater offense arising from the same criminal episode. Here, after the speedy trial period had run, the State discovered it had originally undercharged Mr. Whitehall. In attempting to fix that mistake by filing a new charge, the State circumvented the intent of rule 3.191. Consequently, we must reverse Mr. Whitehall’s conviction for fleeing to elude at high speed or with wanton disregard for the safety of person and property.

By its verdict of guilt for the greater offense, the jury found all elements of the necessarily-included lesser offense of fleeing to elude under section 316.1935(1). See Fla. Std. Jury Instr. (Crim.) 28.8 (designating an offense under section 316.1935(1) as a necessarily lesser-included offense of one under section 316.1935(3)). Therefore, on remand, the trial court shall enter judgment for the originally charged offense of fleeing to elude and sentence Mr. Whitehall accordingly, with credit for all time served.

Reversed and remanded with instructions.

KELLY, J., Concurs.

VILLANTI, J., Concurs in result only.

      . This argument had no merit and will not be discussed further.

      . This court provided the State with two separate opportunities to supplement the record to support its contention that Mr. Whitehall affirmatively waived his right to speedy trial. The second order specifically directed the State to supplement the record on appeal with the transcript of the alleged April 28, 2009, hearing. The State declined to supplement the record, claiming that the existing record is sufficient and that it is not its burden to supplement the record. We therefore decide this case based upon the record before us.