text:
    Marvin LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-97.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2011.
    Marvin Lewis, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Marvin Lewis appeals from the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Buried within Lewis’ fifteen-page motion is a claim that there were a number of errors on his sentencing score-sheet. His motion verges on unintelligible and references unrelated cases in other counties. Boiled down to its essence, Lewis argues that most of .his prior record offenses either did not exist or reflected the incorrect degree of felony. The trial court’s written order includes no attachments and makes no findings. Nonetheless, it is hard to be critical of the trial court given the vague and rambling nature of Lewis’ motion.

Therefore, we affirm the summary denial without prejudice for Lewis to file an amended rule 3.850 motion that clearly and succinctly asserts the specifics of his claim of scoresheet error.

AFFIRMED WITHOUT PREJUDICE.

SAWAYA, COHEN and JACOBUS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. JACOBUS, J.,

license: Public Domain

text:
    Thomas FISCHER, Appellant, v. Kimberly FISCHER, Appellee.
    No. 5D09-1890.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2011.

      Elaine A. Barbour, Orlando, for Appellant.
    Christopher H. Morrison, of Pratt & Morrison, P.A., Winter Park, for Appellee.
   PER CURIAM.

Thomas Fischer, the former husband, timely appeals the final judgment dissolving his marriage to Kimberly Fischer, the former wife. He challenges the amount of income the trial court imputed to him for purposes of calculating child support. We affirm, concluding the trial court’s findings were supported by competent substantial evidence.

The trial court imputed income to Mr. Fischer in the amount of $60,000 annually for purposes of calculating his child support obligation. Mr. Fischer does not challenge the trial court’s decision to impute income, but rather the amount of income imputed. He concedes the ability to earn $40,000 annually. However, he argues there was simply no evidence to support the additional $20,000 imputed by the trial court. We disagree.

In June 2007, a month before he filed for divorce, Mr. Fischer averred on a loan application that he earned an annual salary of $85,000 and that he had additional rental income from various properties which brought his total reported income to $145,000 annually. At trial, Mr. Fischer admitted that he had recently been doing some work involving real estate and computers. Mr. Fischer had a history of earning between $68,000 and $100,000 annually in these areas.

Moreover, Mr. Fischer was owed compensation for his past work for Cyeore, the engineering firm he had owned with Mrs. Fischer. The final judgment ordered that this past-due compensation be paid to Mr. Fischer. Pursuant to the final judgment, Mr. Fischer would also receive an interest in an undeveloped parcel of land which was unencumbered and worth well over $400,000. The final judgment additionally awarded Mr. Fischer his share of the net proceeds from certain of the parties’ other properties, which would likely total around $100,000.

Finally, we note that Mr. Fischer came into the marriage in 2008 with around $1 million in cash and real estate. A year after the separation, he estimated the (now marital) assets were worth around $1.8 million. It does not appear that the trial court considered this in reaching its decision, but it is mentioned here for its apparent relevance to Mr. Fischer’s proven ability to generate income and assets.

In view of the foregoing, we reject Mr. Fischer’s contention that the trial court should have imputed only $40,000 in annual income to him. There was competent substantial evidence to support the trial court’s conclusion that Mr. Fischer had the ability to earn an additional $20,000 from his real estate dealings, rental income, and past-due compensation from Cycore. Therefore, the trial court did not err by imputing $60,000 in annual income to Mr. Fischer. See Roth v. Roth, 973 So.2d 580, 590 (Fla. 2d DCA 2008) (“A court may impute income to a party who has no income or who is earning less than is available to him or her based on a showing that the party has the capacity to earn more by the use of his or her best efforts .... Before imputing income, the trial court must consider evidence concerning the party’s recent work history, occupational qualifications, and the prevailing earnings in the industry in which the party works.”); Freilich v. Freilich, 897 So.2d 537, 543 (Fla. 5th DCA 2005) (“Specifically, as to imputation of income, if the trial court does not include specific findings in the final judgment, the record must reveal competent, substantial evidence to support the trial court’s decision.”).

In conclusion, Mr. Fischer’s argument is without merit and, finding no reversible error, we affirm the final judgment.

AFFIRMED.

TORPY and EVANDER, JJ., concur.

JACOBUS, J., concurs and concurs specially with opinion.

JACOBUS, J.,

concurring specially.

I agree that the final judgment should be affirmed. I write to address the other issue raised by Mr. Fischer. He contends the trial procedure was akin to a strong-arm mediation and violated due process. There is some merit to this argument. Throughout the proceedings, the trial court asked persistent and pointed questions directed at getting the parties to pinpoint the issues upon which they agreed and those upon which they disagreed. The trial court would then entertain evidence, testimony, and argument on the disputed issues as they were identified. The parties never objected to this unconventional procedure, and it is impossible to tell from a cold record whether they acquiesced to it at the time. Thus, any error is unpreserved. Since the parties did have the opportunity to present testimony, evidence, and argument on disputed issues, there was no fundamental error or deprivation of due process.

While Mr. Fischer is entitled to no appellate relief on this unpreserved issue, the unconventional trial procedure used in this case should be discouraged because it hinders appellate review. The orderly presentation of evidence is necessary to create a coherent appellate record. The more traditional procedure in a nonjury trial is for the trial court first to inquire as to any stipulations or preliminary matters; next to allow the parties to present opening statements; then to permit the parties to present their evidence, starting with the petitioner’s case-in-chief; and finally to give each party an opportunity to make closing arguments. This type of traditional procedure should be utilized in the typical case because it enables the parties to fully present their case and develop a complete record for appeal. See § 90.612, Fla. Stat. (2010).

      . This is not the only argument Mr. Fischer makes, but it is tire only one that merits discussion.


author: NORTHCUTT, Judge.

text:
    Eric John GALLENTINE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1869.
    District Court of Appeal of Florida, Second District.
    March 4, 2011.
    James Marion Moorman, Public Defender, and Wendy DePaul, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Eric John Gallentine raises two points on appeal from multiple convictions. We affirm without discussion his claim that the trial court erred in denying his motion to suppress. But we agree that the trial court erred by imposing a three-year mandatory minimum sentence under section 775.087(2)(a)(l)(r), Florida Statutes (2008), for possession of a firearm by a convicted felon. The evidence failed to show that Gallentine carried the firearm on his person. See, e.g., Williams v. State, 997 So.2d 486 (Fla. 2d DCA 2008); Washington v. State, 876 So.2d 1242 (Fla. 2d DCA 2004); Johnson v. State, 855 So.2d 218 (Fla. 5th DCA 2003); see also State v. Mulus, 970 So.2d 349 (Fla. 3d DCA 2007) (reversing mandatory minimum term when firearm was discovered in defendant’s car during a traffic stop but not actually carried on his person; certifying question of great public importance whether carrying on the person is sole method for imposing mandatory minimum sentence); review denied, 979 So.2d 220 (Fla.2008).

Convictions affirmed; three-year mandatory minimum sentence reversed.

KHOUZAM and MORRIS, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Scott GOSNEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2863.
    District Court of Appeal of Florida, Second District.
    March 4, 2011.
    Scott Gosney, pro se.
   SILBERMAN, Judge.

Scott Gosney seeks review of two orders summarily denying his motion and amended motion for postconviction relief. Because the court granted Gosney leave to amend several claims and has not yet issued a final ruling on these claims, the orders at issue are nonfinal, nonappealable orders. Accordingly, we dismiss this appeal.

A jury convicted Gosney of burglary, and the trial court sentenced him to thirty years in prison as a habitual felony offender with ten years suspended to be served on probation. The court also imposed a fifteen-year mandatory minimum as a prison releasee reoffender. Gosney appealed, and this court affirmed his judgment and sentence. See Gosney v. State, 22 So.3d 548 (Fla. 2d DCA 2009) (table). Mandate issued on December 8, 2009.

On February 11, 2010, Gosney filed a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850 in which he raised six claims of ineffective assistance of counsel (claims l(a-e) and 2). On March 23, 2010, Gosney filed an amended rule 3.850 motion in which he raised five additional claims of ineffective assistance of counsel (claims 3-7).

On March 31, 2010, the postconviction court rendered an order on the February 11, 2010, motion. The court dismissed claim 1(c) as successive and denied claim 2 on the merits. The court dismissed claims l(a, b, d, e) as facially insufficient and provided leave for Gosney to “timely” file a facially sufficient claim pursuant to Spera v. State, 971 So.2d 754 (Fla.2007). The order did not set forth a specific deadline for amendment and stated that Gosney had thirty days in which to appeal. Gos-ney did not file an amendment of the claims pursuant to Spera or a notice of appeal from this order.

On May 7, 2010, the postconviction court rendered an order on the March 23, 2010, amended motion. The court dismissed claim 3 as facially insufficient and denied claims 4-7 on the merits. The order stated that Gosney had thirty days in which to appeal. The court did not address the claims that it had dismissed with leave to amend in the March 31, 2010, order.

Gosney subsequently filed a notice of appeal. In his pro se brief, Gosney presents additional information as to the claims that were dismissed as facially insufficient in the court’s March 31, 2010, order (claims l(a, b, d, e)) and as to claim 2, which the court had denied.

This case is procedurally unusual because Gosney filed an amended rule 3.850 motion adding new claims before the court ruled on the first rule 3.850 motion, but the court issued two separate orders addressing the motion and amended motion. In the March 31, 2010, order the court denied relief on two claims but dismissed claims l(a, b, d, e) with leave for Gosney to amend. However, as noted above, the court did not give Gosney a time certain in which to amend claims l(a, b, d, e), and the court has not issued a final ruling on these claims. Gosney’s two-year period in which to file his rule 3.850 motion does not expire until December 8, 2011; thus he may still file a timely amendment to these claims. See Fla. R.Crim. P. 3.850(b).

Of course, Gosney may not be aware that he can still amend claims l(a, b, d, e) in the postconviction court because the March 31, 2010, order informed Gosney he had thirty days to appeal. This information was erroneous because the order was not a final, appealable order. See Lawrence v. State, 987 So.2d 157, 158 (Fla. 2d DCA 2008) (holding that orders that deny some rule 3.850 claims but dismiss others with leave to amend under Spera are not final, appealable orders).

In the May 7, 2010, order the court dismissed claim 3 as facially insufficient and denied claims 4-7 on the merits. However, because the court did not address claims l(a, b, d, e), this order is also a nonfinal, nonappealable order. See Russell v. State, 46 So.3d 151, 152 (Fla. 2d DCA 2010) (“[U]ntil a final order on the original postconviction motion is entered, we do not have jurisdiction to review interim orders and we must dismiss this appeal.”). As with the earlier order, the May 7, 2010, order erroneously informed Gosney he had thirty days to appeal.

In summary, neither the March 31, 2010, order, nor the May 7, 2010, order is a final, appealable order because claims l(a, b, d, e) have not yet been ruled upon. Thus, this appeal is dismissed with directions for the court to enter an order allowing amendment within a time certain. See, e.g., Herron v. State, 34 So.3d 206, 206-07 (Fla. 2d DCA 2010).

This disposition necessarily precludes our review of the court’s rulings on the remainder of the claims. That said, the May 7, 2010, order dismissed claim 3 as facially insufficient without providing Gos-ney leave to amend as required by Spera. We call attention to this error so that the court may afford Gosney an opportunity to amend this claim on remand.

Appeal dismissed.

CASANUEVA, C.J., and WHATLEY, J., Concur.

      . The filing dates that we refer to are the pertinent dates under the "mailbox rule.” See Haag v. State, 591 So.2d 614, 617 (Fla.1992). Also, the trial court referred to the additional claims as claims 1 through 5. We have renumbered them to distinguish them from the original claims.


author: PER CURIAM.

text:
    John FORREST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0517.
    District Court of Appeal of Florida, First District.
    March 4, 2011.
    Ashley Smith Herndon of Dewrell & Herndon, Shalimar, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Kramp v. Fagan, 568 So.2d 479 (Fla. 1st DCA 1990).

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


author: KHOUZAM, Judge.

text:
    David J. SANDORO, Appellant, v. HSBC BANK, USA National Association, as Trustee for Wells Fargo Home Equity Asset Backed Certificates, Series 2005-4, Appellee.
    No. 2D10-195.
    District Court of Appeal of Florida, Second District.
    March 9, 2011.

      John P. Fleck, Jr., Bradenton, for Appellant.
    Joshua D. Moore of Carlton Fields, P.A., Orlando, and Michael K. Winston and
    Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for Appellee.
   KHOUZAM, Judge.

David J. Sandoro appeals a final judgment of foreclosure entered after the trial court granted the motion for summary judgment filed by HSBC Bank, USA National Association, as Trustee for Wells Fargo Home Equity Asset Backed Certificates, Series 2005-4 (HSBC Bank). Because the record contains genuine issues of material fact, we reverse and remand for further proceedings.

On April 10, 2007, Wells Fargo Bank, N.A. (Wells Fargo), filed, an unverified complaint against Mr. Sandoro seeking to foreclose a mortgage on real property. Mr. Sandoro did not answer the complaint. Instead, he filed a motion to dismiss based on Wells Fargo’s failure to attach a notice of acceleration and the promissory note to the complaint. While Mr. Sandoro’s motion to dismiss was pending, Wells Fargo filed a motion for summary judgment. Mr. Sandoro filed an affidavit in opposition to Wells Fargo’s motion, contending, among other things, that Wells Fargo failed to satisfy the condition precedent of providing a notice of acceleration. Mr. Sandoro also noted that his motion to dismiss had not yet been resolved. The trial court denied Wells Fargo’s motion for summary judgment. Wells Fargo then filed a written response to Mr. Sandoro’s motion to dismiss, claiming that a notice of acceleration had been sent on November 17, 2006. Wells Fargo did not provide any proof of mailing, however, and the copy of the notice of acceleration attached to Wells Fargo’s response was dated February 5, 2007.

Wells Fargo subsequently filed a motion to substitute HSBC Bank as the plaintiff. After the motion was granted, Mr. Sandoro filed an affidavit challenging HSBC Bank’s standing to foreclose the mortgage. In response, HSBC Bank filed a copy of the purported assignment of mortgage. The assignment reflected that the mortgage was transferred to HSBC Bank “on or before” April 3, 2007; however, the assignment was executed on October 9, 2008, and notarized on October 10, 2008. HSBC Bank then filed a motion for summary judgment, which was granted after a hearing.

We review the summary judgment de novo. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fla. R. Civ. P. 1.510(c)). When a plaintiff moves for summary judgment before the defendant answers the complaint, the plaintiff “must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.” BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010).

Here, the record reflected genuine issues of material fact regarding the purported assignment of mortgage and whether Mr. Sandoro had been provided with a notice of acceleration. Therefore, the trial court erred in granting HSBC Bank’s motion for summary judgment and we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

WHATLEY and KELLY, JJ., Concur.

      . The mortgage states, in pertinent part:
      Lender shall give notice to Borrower pri- or to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument.... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.

      . Wells Fargo also alleged in its written response that the notice of acceleration was mailed on "September November 11, 2006[sic].”


author: PER CURIAM. ALTENBERND, Judge,

text:
    M.J.I., Appellant, v. A.J.K., Appellee.
    No. 2D10-2134.
    District Court of Appeal of Florida, Second District.
    March 9, 2011.
    Joseph C. Hood, Tampa, for Appellant.
    Frank G. Fernandez of Fernandez, Lar-kin & Garcia, P.A., Tampa, for Appellee.
   PER CURIAM.

Affirmed.

WHATLEY and NORTHCUTT, JJ., Concur.

ALTENBERND, J., Concurs specially with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in this decision that affirms a final judgment of paternity in an action filed by the father, A.J.K. The primary issue in this ease concerns child custody. I write only to explain that my vote to deny attorney’s fees to the father is not based on the reasoning in Starkey v. Linn, 727 So.2d 386 (Fla. 5th DCA 1999), and Gilbertson v. Boggs, 743 So.2d 123 (Fla. 4th DCA 1999). Both of those cases hold that attorney’s fees cannot be awarded on appeal in a paternity action because section 742.045, Florida Statutes (2008), does not expressly authorize fees on appeal.

It is true that both section 742.045 and section 742.031 authorize an award of attorney’s fees in paternity actions but make no reference to fees for an appeal. Neither statute limits attorney’s fees to a prevailing party and, thus, the provision in section 59.46, Florida Statutes (2008), interpreting statutes that award prevailing party attorney’s fees to include an award of appellate attorney’s fees does not apply in this case.

My concern is that section 61.16, Florida Statutes (2008), would allow for an award of fees in this type of custody dispute if the child were legitimate. Statutes that do not provide rights and remedies to illegitimate children and their parents that are comparable to the rights and remedies given to legitimate children and their parents can violate Equal Protection. See Brown v. Dykes, 601 So.2d 568, 570 (Fla. 2d DCA 1992) (holding section 742.031 unconstitutional to the extent that it prohibited attorney’s fees to a father in a paternity action). Under any level of scrutiny, it is not obvious to me that parents of illegitimate children should be treated differently than parents of legitimate children when it comes to the rules for awarding attorney’s fees on appeal in custody disputes.

The parties have not briefed the constitutional issue, and I conclude that attorney’s fees would be inappropriate under the circumstances of this case even if section 61.16 were the applicable law. Accordingly, I join in the order denying fees.


text:
    Isaac MORRISON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-4527, 4D09-4528.
    District Court of Appeal of Florida, Fourth District.
    March 9, 2011.

      Isaac Morrison, Brooklyn, N.Y., pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Isaac Morrison (Defendant) appeals two orders entered on the same date, one summarily denying his motion to correct sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, and the other summarily denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. This court sua sponte consolidated the two appeals. We affirm the denial of the rule 3.800(a) motion without further discussion. We reverse the summary denial of the rule 3.850 motion in part, as to Defendant’s seventh ground for relief, and otherwise affirm.

Defendant was charged with failure of sex offender to properly register, occurring between November 1, 2005, and March 3, 2006. At his jury trial, evidence was adduced that he had been advised of the sex offender registration requirements, including that he had to register within forty-eight hours of release and notify the Department of Highway Safety and Motor Vehicles within forty-eight hours of a change of address so the registration records could be updated. In September 2005, Defendant registered an address at a motel on North Federal Highway in Boyn-ton Beach, but in March 2006, an officer with the Boynton Beach Police Department Sexual Predator and Offender Tracking Unit received information raising his suspicion as to where Defendant actually was living. On investigating, he learned the motel management had asked Defendant to leave around the middle of September.

Defendant testified that when he registered originally, he had neither a permanent or a temporary address, but he filled out a form, providing a mailing address on Northeast 12th Avenue in Boynton Beach. In September, he obtained a duplicate identification card showing the North Federal Highway address. Thereafter, however, he did not have an established address, but he regularly called the detectives to tell them he did not have an address, and the detective he dealt with, a Brent Combs, told him to change his address when he gets settled. He had provided an address where he could always be reached, because he had difficulty finding a permanent address. He was not hiding; he called the detectives at least once a week to let them know what was happening.

On cross-examination, Defendant was asked if he lived at an address on N.E. Sixth Court subsequent to September 2005, and he denied it. Defendant acknowledged he had made a statement regarding that address to the Boynton Beach Police Department on March 3, 2006, but he insisted he said an offense took place there, not that he resided there; he merely visited his friend Gail there on a regular basis, and had a key to that apartment in order to do some construction work to refurbish the apartment. He acknowledged that he had tools and some clothes there, and if the officer who responded to his call asked if it was his residence, he might have said yes, but he did not recall being asked that question. Defendant did not fill out a registration form saying he lived there because he denied ever living there. He had been told by Brent Combs that his registration was all right. He could always be reached at the N.E. 12th Avenue address that he used as his mailing address.

A Boynton Beach police officer then testified for the state as a rebuttal witness that on March 3, 2006, he responded to the N.E. Sixth Court address and came into contact with Defendant and his girlfriend Gail. For the police report, Defendant advised that that address was his current address, where he resided, and Defendant’s sworn witness statement also reflected that was his apartment.

In his seventh ground, Defendant claimed counsel was ineffective for failing to call as a witness Detective Combs, the detective assigned to his case, who would have verified that Defendant’s statements were correct and that there was no violation.

The state asserts that during Defendant’s trial, it proved beyond a reasonable doubt that Defendant knew he was required to register and had not done so at the relevant time, so even if Detective Combs had testified in accordance with what Defendant said he would say, it would not have made any difference.

We disagree that the record conclusively showed that Detective Combs’s testimony would not have had a reasonable probability of changing the outcome of the trial. We therefore reverse the summary denial of ground seven of the rule 3.850 motion and remand for the trial court to hold an evidentiary hearing on this ground for relief.

Affirmed in part, reversed in part, and remanded.

GROSS, C.J., WARNER and DAMOORGIAN, JJ., concur.


text:
    Octavio P. LLERENA, Petitioner, v. SPILLIS, CANDELA & PARTNERS, INC., and One Beacon Insurance Group, Respondent.
    No. 1D11-0469.
    District Court of Appeal of Florida, First District.
    March 9, 2011.
    James A. Walker of the Law Offices of James A. Walker, P.A., Miami, for Petitioner.
    Marjorie Gadarian' Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for Respondents.
   PER CURIAM.

DENIED. See, e.g., Vazquez v. Wendy’s, 931 So.2d 152, 152 (Fla. 1st DCA 2006); Fla. Fish & Wildlife Comm’n v. Pringle, 770 So.2d 696, 697 (Fla. 1st DCA 2000); see also, e.g., Dawson v. Clerk of Cir. Ct.-Hillsborough County, 991 So.2d 407, 411 (Fla. 1st DCA 2008).

DAVIS, CLARK, and MARSTILLER, JJ., concur.


author: LaROSE, Judge.

text:
    PERETZ PROPERTIES, LLC, a Florida limited liability company, Appellant, v. MRHOP INVESTMENT, LLC, a Florida limited liability company, Appellee.
    No. 2D10-36.
    District Court of Appeal of Florida, Second District.
    March 11, 2011.
    Kevin L. Hagen of Hagen & Hagen, P.A., Ft. Lauderdale, for Appellant.
    W.A. “Drew” Crawford, Sean R. Parker, and Richard A. Lopez of Boswell & Dunlap, LLP, Bartow, for Appellee.
   LaROSE, Judge.

The appeal is dismissed for lack of jurisdiction. See Cunningham v. MBNA Am. Bank, N.A., 8 So.3d 438, 440 (Fla. 2d DCA 2009) (holding dismissal of compulsory counterclaim with prejudice is not an ap-pealable final order until final disposition of the underlying case).

KHOUZAM and CRENSHAW, JJ., Concur.


author: TAYLOR, J.

text:
    Fabian MONCRIEFFE a/k/a Reuben Foster, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-904.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Defendant, Fabian Moncrieffe, appeals his conviction for escape. Because the evidence failed to demonstrate that the defendant was validly arrested and in the lawful custody of the Lauderhill police at the time of his alleged escape, we reverse his conviction and sentence for escape.

Defendant was charged by information with escape while in the lawful custody of the Lauderhill Police Department on July 27, 2005, in violation of section 944.40, Florida Statutes. The facts and circumstances that led to the escape charge are detailed in an order entered by the trial court after multiple hearings on the defendant’s motion to suppress evidence. The court’s findings of fact are set forth below:

On July 27, 2005, at approximately 5:30am, Sgt. Jimmy Patrizi, of the Sunrise Police Department, arrived at the Walgreens located at 2301 North University Drive in response to a complaint from the night manager that a patron was acting suspiciously. Sergeant Patri-zi entered the store and observed the Defendant at the register with two shopping carts. Sergeant Patrizi immediately left the store to consult with Officer Michael West, of the Sunrise Police Department, who just arrived at the scene. Moments later, the officers observed the Defendant exit the store without any merchandise and quickly walk across the parking lot.
Officer West confronted the Defendant in the parking lot and immediately advised him of his Miranda rights. Officer West then asked the Defendant where he was going. The Defendant stated that he drove to the store in his girlfriend’s vehicle and that he was walking to a payphone to call his girlfriend since he forgot to bring money to the store. Sgt. Patrizi then conducted a pat down on the Defendant and discovered a bulky item in the Defendant’s pockets. Sgt. Patrizi told the Defendant to empty the contents of his pockets. The Defendant complied and placed a cell phone, keys to a Honda, and a wallet which contained four counterfeit bills on the hood of the police car. The Defendant was told to discard two used condoms and wrappers in his possession on the ground.
Sgt. Patrizi testified that he walked over to the Honda and observed a driver’s license on the front passenger seat which obviously did not belong to the Defendant. Sgt. Patrizi then unlocked and searched the Honda. The warrant-less search of the vehicle revealed the driver’s license, some tools, a hat, and a pair of gloves. A further investigation of the driver’s license found in the Honda and the cell phone retrieved from the Defendant revealed that both items had been reported stolen from Mr. Jeffrey Mall, a resident of Tamarac Florida. The Defendant was subsequently arrested for loitering and prowling and was transported to Sunrise Police Department at 6:45am.
Detective Michelle Fernandez, of the Broward Sheriffs Office, testified she was contacted by the Sunrise Police Department informing her that a person in their custody may have committed a crime in BSO’s jurisdiction. Det. Fernandez testified that she arrived at the Sunrise Police Station at approximately 8:00am to investigate the possible burglary or theft of items found in the Defendant’s possession. Detective Fernandez read the Defendant his Miranda rights and obtained a written Miranda waiver form before she spoke with the Defendant in the Sunrise Police station regarding the stolen property. Det. Fernandez confirmed that the cell phone belonged to Jeffrey Mall and subsequently obtained permission from him to look through the numbers in his cell phone’s record memory. The cell phone records revealed there were two numbers dialed at approximately 5:00am on the morning of July 27, 2005. Det. Fernandez called one of the numbers and spoke with Amanda McNutt. Ms. McNutt told Det. Fernandez that she had been raped early that morning at her residence and that she had reported the rape to the Lauderhill Police Department at approximately 6:00am. Ms. McNutt’s description of her assailant matched the Defendant’s physical description. Ms. McNutt also described certain tools and clothing that matched the clothing and tools taken from the vehicle the Defendant’s Honda.

The trial court continued, making the following factual findings:

Det. Fernandez testified that she then contacted the Lauderhill Police Department to inform them that they had a possible suspect for a sexual battery committed in their jurisdiction in custody. Officer Darrell King, of the Lauder-hill Police Department, arrived at the Sunrise Police Department. Det. Fernandez testified that she gave Officer King her probable cause affidavit because the Laudei'hill Police Department wanted to further interview the Defendant regarding the sexual battery. Det. Robert Clifford, of the Lauderhill Police Department, testified that Officer Darrell King, in cooperation with the Sunrise Police Department, took custody of the Defendant at approximately 12:25pm and transported him to the Lauderhill Police Department.
Det. Clifford testified that he conducted a photo lineup, at approximately 1:00pm, with Ms. McNutt with photos provided by the Broward Sheriffs Office in which Ms. McNutt positively identified' the Defendant as her assailant. At approximately 2:21pm, Det. Clifford gave the Defendant an additional Miranda warning and obtained signed written Miranda waiver form. Det. Clifford and Det. Hackshaw conducted a taped interview with the Defendant in which he admitted to having consensual sexual relations with Ms. McNutt. The Defendant was subsequently charged with sexual battery and burglary with a battery.
Officer Corey Pendergrass, of the Lauderhill Police Department, transported the Defendant to the Broward Sheriffs Office’s Tamarac holding facility, but the Defendant was refused admittance after stating he was still under the influence of xanax. The Defendant was then transported to the Florida Medical Center where he escaped while still in the custody of Officer Pender-grass. The Defendant was apprehended approximately two and a half weeks later and was charged with the additional count of escape.

In the defendant’s Second Amended Motion to Suppress Illegally Seized Evidence, the defendant alleged, among other things, that the defendant was not in the legal custody of the Lauderhill Police Department when he fled before being brought to the Broward County Jail. According to the defendant, Lauderhill Police Officer King seized him outside of his jurisdiction when he went to the City of Sunrise to pick him up and transport him to the Lauderhill Police Department.

At the suppression hearing, Broward Sheriffs Detective Fernandez testified that after she spoke by phone to the alleged rape victim and connected the defendant to the crime in Lauderhill, she spoke to a Lauderhill detective, who advised her that Officer King would be coming over to Sunrise to pick up the defendant and transport him to the Lauderhill Police Department. She prepared a probable cause affidavit and delivered it to Officer King for eventually booking the defendant into the Broward County Jail.

Detective Fernandez acknowledged that Sunrise and Lauderhill have independent municipal police departments, and that if a crime occurs in Lauderhill, the Lauderhill police can go outside their city to make an arrest only if they are in hot pursuit or have an arrest warrant; neither circumstance was present here. The state argues that the Lauderhill police were authorized to take the defendant into custody outside their jurisdiction because officers from the different agencies were cooperating across jurisdictional lines. Relying on Sanguine v. State, 895 So.2d 1198 (Fla. 3d DCA 2005), the state argued that the defendant could properly be transported from one jurisdiction to another based on the cooperative efforts of the officers from different jurisdictions during the investigation. However, at the evidentiary hearings, the state did not introduce any mutual aid agreements that were in existence at the time of the defendant’s arrest which purportedly provided legal authority for a Lauderhill officer to make a warrantless arrest of the defendant outside of his jurisdiction.

The defendant challenged the validity of his arrest by the Lauderhill police in a sworn motion to dismiss, as well as in his motion to suppress evidence. He argued that he could not be convicted of escape from the Lauderhill police because the state failed to prove he was in their lawful custody at the time of his escape.

Ultimately, the trial court granted the motion to suppress in part and denied it in part, finding that the defendant’s initial search and arrest by the Sunrise Police Department for loitering and prowling were illegal because the officers lacked probable cause, but that the defendant’s subsequent arrest by the Lauderhill Police Department for sexual battery and burglary with a battery was lawful. Accordingly, the court ordered that “all evidence obtained from the time of the Defendant’s illegal arrest at Walgreens to the time the Defendant was transported to the Lauder-hill Police Department should be suppressed. However, all evidence relating to [victim’s] identification of the Defendant at the photo lineup and all evidence acquired after the photo lineup is not ‘fruit of the poisonous tree.’ ” The court also held that the defendant’s arrest for sexual battery and other charges, including escape, was sufficiently attenuated such that it did not need to be suppressed.

The court found that, based on the Fri-erson factors, the victim’s identification of the defendant at the photo lineup as the man who raped her dissipated any taint caused by the defendant’s illegal arrest for loitering and prowling. The court further found that because the Lauderhill Police Department had sufficient probable cause to arrest the defendant for sexual battery and burglary with a battery based upon the victim’s testimony and identification of the Defendant at the photo lineup, the defendant was in the lawful custody of the Lauderhill Police Department when he escaped.

Following a jury trial, the defendant was convicted of escape and sentenced to ten years in prison, consecutive to the twenty-year sentence imposed for violation of probation.

The defendant raises three points on appeal, but we address only his argument that his escape conviction cannot stand because the Lauderhill police were beyond their jurisdiction when they took him into custody in Sunrise, and that he therefore was not in their legal custody at the time of his escape.

“Generally, an officer of a county or municipality has no official power to arrest an offender outside the boundaries of the officer’s county or municipality.” Porter v. State, 765 So.2d 76, 78 (Fla. 4th DCA 2000) (citing Huebner v. State, 731 So.2d 40, 44 (Fla. 4th DCA 1999)). Exceptions to this rule apply when an officer is acting as a private citizen or is in fresh pursuit. See Phoenix v. State, 455 So.2d 1024, 1025 (Fla.1984) (explaining that law enforcement officials outside their jurisdiction “should not be any less capable ... of making a felony arrest than a private citizen,” nor have a greater power; however, law enforcement officials may not make citizen’s arrests under color of their office); § 901.25, Fla. Stat. (2005) (mandating that an arresting officer may arrest someone outside the officer’s jurisdiction if in fresh pursuit). Here, it is undisputed that Officer King was not acting as a private citizen, but rather “under the color of office,” and that he was not in fresh pursuit of the defendant when he took him into custody in Sunrise.

The unlawful nature of custody is an affirmative defense which can be raised to a charge of escape. State v. Williams, 444 So.2d 13, 15 (Fla.1984); Marquez v. State, 450 So.2d 345, 345 (Fla. 2d DCA 1984). In this case, the evidence presented by the state, which demonstrated the unlawfulness of the defendant’s arrest and his ensuing confinement and custody by Lauderhill police, all of which arose out of the same facts and circumstances, established the defendant’s affirmative defense to the escape charge. See B.D.K. v. State, 743 So.2d 1155, 1157-58 (Fla. 2d DCA 1999) (holding that the state’s evidence of his unlawful arrest for loitering and prowling established the defendant’s affirmative defense of unlawful custody to the charge of escape and the trial court should have granted his motion for judgment of acquittal on that ground).

Officer King, a municipal police officer acting under the color of his office, exceeded his authority by taking the defendant into custody outside the territorial limits of the officer’s jurisdiction without a warrant. The fact that there may have been probable cause to arrest the defendant is not controlling. See Brown v. State, 623 So.2d 800, 802 (Fla. 4th DCA 1993) (stating that even though the facts would support a finding of probable cause to arrest, such a finding is not dispositive; “ ‘[flor there to be an escape, there must first be a valid arrest.’ ” (quoting Kyser v. State, 533 So.2d 285, 287 (Fla.1988))).

In Ripley v. State, 898 So.2d 1078, 1079 (Fla. 4th DCA 2005), we addressed an arrest made by Broward County Sheriffs deputies in Palm Beach County. Without probable cause or an arrest warrant, the deputies traveled to the defendant’s home in Palm Beach County to question him about a homicide. Id. They placed the defendant in a police car, read him Miranda warnings, and transported him to the police station, where they obtained a statement from him that led to the discovery of the murder weapon. Id. In reversing Ripley’s conviction, we held that the arrest was unlawful as the deputies were acting outside their jurisdiction and without probable cause. Id. at 1080-81. We also held that the arrest could not be justified as a citizen’s arrest because the officers were acting under color of law while gathering evidence. Id. at 1080. See also State v. Sills, 852 So.2d 390, 391 (Fla. 4th DCA 2003) (affirming suppression order where Coconut Creek officers transported the defendant to his home in Lauderhill Lakes and obtained waiver of a search warrant).

In sum, because the defendant was not in the lawful custody of the Lauderhill Police Department at the time he fled, we reverse his conviction and sentence for escape and remand with directions for discharge as to this charge. Because the defendant cannot be retried for this offense, we need not decide the remaining issues raised for reversal.

Reversed.

WARNER and MAY, JJ., concur.

      . He was originally charged by information and amended information with sexual battery, burglary with a battery, and escape. However, the charges were severed, and the trial relevant to this appeal involved only the escape charge.

      . As defendant points out, even if the Lauder-hill Police Department had obtained an arrest warrant for the defendant, they would have lacked authority to execute the warrant, because section 901.04, Florida Statutes (2005), directs that the warrant be executed only by the sheriff of the county in which the arrest is to be made unless the arrest is made in fresh pursuit.

      . State v. Frierson, 926 So.2d 1139 (Fla.2006).

      . We further note that the defendant is not relying upon some technical deficiency or irregularity in a warrant under which he has been taken into custody. Cf. McGee v. State, 435 So.2d 854 (Fla. 1st DCA 1983) (holding that defendant was in "lawful custody" so as to subject him to escape conviction where he was in custody of duly authorized law enforcement officials under the authority of ca-piases issued by the trial court).


author: POLEN, J.

text:
    Jean R. THERMIDOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1326.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.

      See also 50 So.3d 1184.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Jean Thermidor, appeals from his conviction for robbery with a firearm. We reverse in accordance with our previous ruling in Thermidor v. State, 50 So.3d 1184 (Fla. 4th DCA 2010), in which Thermidor raised the same issue.

In the instant case, Thermidor was charged by information with one count of robbery with a firearm which occurred on March 10, 2006. In a separate case, Ther-midor was charged with and convicted of armed robbery, which occurred on June 21, 2006. In each case, the State filed a notice of intent to offer Williams rule evidence under section 90.402, Florida Statutes. A hearing was held and the trial court granted the motion. The order on the Williams rule evidence stated that Thermidor was charged with robbery with a firearm in two cases which occurred on March 10 and June 21, 2006. The similarities were found to be as follows:

[T]he victim’s [sic] are taxi cab driver’s [sic]. The victim’s [sic] both picked up the defendant after midnight and were instructed to drive to the Inverrary Village Apartment complex located at the 2900 block of NW 56th Avenue. Once inside the complex the defendant used very direct and specific instructions to lead the victim’s [sic] to the back of the complex. This area of the complex is a dead end. The two victims’ [sic] were then robbed at gunpoint. They both identified the defendant out of a photo lineup. The defendant lives 150 yards away from Inverrary Village apartments.
The Dissimilarities in these cases are that ... once the defendant arrived at the dead end at the Invennary [sic] Village Apartment Complex, the victim was approached by the two other males, and with the assistance of the defendant, was robbed at gunpoint. In [the other case] the defendant had a gun on his person and robbed the victim by himself.

At trial in the instant case, Thermidor was convicted as charged. He appeals that conviction, arguing that the trial court erred in admitting into evidence the collateral crime evidence of the armed robbery which occurred on June 21, 2006. Thermi-dor’s conviction in the related case has been reversed, in which the same issue was raised. See Thermidor, 50 So.3d 1184. This court’s opinion in the related case states in relevant part:

The similarities in the instant case were (1) both cab drivers picked up a black male and drove him to Inverrary Village.... (2) Both crimes were armed robbery of a cab driver. (3) The robberies occurred at the same location, Inver-rary Village, at a dead end street. The state asserts that very specific directions were given to the dead end street. However, the directions given to each of the drivers were not exactly the same, according to the testimony, and contrary to the state’s assertion, it is not clear from the testimony that they went to the same dead end street.
The dissimilarities between the two eases were that (1) Thermidor carried a gun and committed the crime alone in the collateral crime case and in the instant case there were two other robbers, one of whom possessed the gun; (2) with respect to the actual robberies, the evidence did not show that how the robber(s) proceeded were similar in any way, except that they both involved taking money from the cab drivers; and (3) robbery of cab drivers is a common occurrence in South Florida and elsewhere, and does not constitute a signature-type crime.
In this case, it appears that the dissimilarities outweigh the similarities, especially in light of the addition of two other robbers in the instant case. Furthermore, there does not appear to be anything especially unique about the circumstances to point to Thermidor and only Thermidor. The admission of collateral crimes evidence is subject to the abuse of discretion standard of appellate review. Gadson v. State, 941 So.2d 573, 575 (Fla. 4th DCA 2006). The trial court abused its discretion in this case due to the lack of anything special, unusual, or unique about the robberies of these two cab drivers.

Id. at 1188.

As this court reversed Thermidor’s conviction in the earlier appeal, in which Thermidor raised the same issue, this court is bound by its previous ruling.

The State, as it did in the previous appeal, argues that any error was harmless. The State notes that, in this case, the victim positively identified Thermidor in open court and from the photo lineup, and that Thermidor’s cellular phone number was used to call the cab. However, there was no physical evidence in this case. While the cab was processed for fingerprints, no usable prints were found. The victim testified that, prior to the robbery, he and the passenger discussed the fact that they were both from Haiti, but the passenger had no accent. The detective who questioned Thermidor, however, testified that Thermidor had a “Haitian or Creole type accent.” When shown a photo lineup, it took the victim five to seven minutes to make an identification. While the victim was able to identify Thermidor as the man who robbed him, he was the sole witness to the crime. “Additionally, if the State had proven identity to its satisfaction ... there was no need to introduce collateral crime evidence to prove identification.” Id. As this court found in the related case, “[t]he collateral crime evidence, however, did show Thermidor’s propensity for committing robberies.” Id. This court further noted that “[a]dmission of irrelevant fact evidence is ‘presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.’ ” Id. at 1188-89 (quoting Robertson v. State, 829 So.2d 901, 913-14 (Fla.2002) (citations omitted)).

As in the prior case, the State has not overcome the presumption of harmful error and has not shown beyond a reasonable doubt that the error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Accordingly, we reverse.

Reversed and Remanded for a New Trial.

HAZOURI and CIKLIN, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: HÁZOURI, J.

text:
    Ricardo O. RANGLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4243.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   HÁZOURI, J.

Ricardo Ranglin was charged with the aggravated battery of his former girlfriend, Kennisha Potts. Following a jury trial he was convicted of the lesser included offense of battery. Ranglin appeals his conviction and asserts three points on appeal, the first of which is that the trial court erred in denying his motion to strike a juror for cause requiring a new trial. Because we agree the trial court erred in denying the motion to strike the juror for cause, we do not address the remaining two points on appeal.

Ranglin and Potts were involved in an intimate relationship from July 2007 to November 2007. Following the termination of their relationship, he kept in touch and would speak with her approximately twice a month. On June 28, 2008, which happened to be Potts’s birthday, Ranglin picked her up from her place of employment and drove her to his home. At some point during the evening an altercation occurred between Ranglin and Potts with each testifying to different versions of what happened. Potts’s version is that Ranglin wanted her to engage in sex, which she resisted, resulting in Potts sustaining a fractured left eyebrow, left cheek, and left side of her nose.

Ranglin’s version was that Potts became upset with him because he failed to buy her a birthday present. Ranglin claimed she attacked him, he defended himself, and this accounted for the injuries that she sustained.

At trial, Ranglin asserted a claim of self-defense. He claimed he had not started the altercation, but simply defended himself, resulting in Potts’s injuries.

During voir dire, after discussing self-defense, prospective Juror Kenneally indicated there were no circumstances under which it was appropriate for a man to strike a woman. The following colloquy occurred:

DEFENSE COUNSEL: Okay. Now, I am going to ask this question for Ms. Kenneally.
Is it ever appropriate if — for a man to strike a woman?
MS. KENNEALLY: No.
DEFENSE COUNSEL: Under any circumstances?
MS. KENNEALLY: No.
DEFENSE COUNSEL: Or — I don’t want to put words in your mouth, tell me why it’s under no circumstances ever appropriate for a man to strike a woman.
MS. KENNEALLY: I believe it tends to escalate, and instead of resolving the problem it gets worse.
DEFENSE COUNSEL: Okay. Ms. Kenneally, my question to you was, are there any circumstances that you can think of where it would be okay for a man to strike a woman. And your answer was?
MS. KENNEALLY: No, I don’t believe that is appropriate. I believe that it escalates the problem instead of resolves it.

At the conclusion of jury selection, counsel for Ranglin moved to strike Juror Ken-neally for cause, which the trial court denied. Ranglin exercised a peremptory challenge to excuse Juror Kenneally. Thereafter, Ranglin had exhausted his peremptory challenges and moved for an additional peremptory, which the trial court also denied. When the jury was sworn Ranglin refused to accept the jury panel as constituted, thereby preserving the issue for appeal.

The standard of review of a trial court’s ruling on a cause challenge is one of abuse of discretion. See Singleton v. State, 783 So.2d 970, 973 (Fla.2001). While the initial determination of a juror’s competence for cause rests with the trial court’s discretion, this discretion is not limitless. See Singer v. State, 109 So.2d 7, 22-24 (Fla.1959). Abuse of discretion occurs when the record reveals a reason to doubt impartiality. Montozzi v. State, 633 So.2d 563, 565 (Fla. 4th DCA 1994). “Close cases should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality.” Bryant v. State, 765 So.2d 68, 71 (Fla. 4th DCA 2000) (citation omitted).

In the instant case, Juror Kenneally agreed that under no circumstances would it be appropriate for a man to strike a woman. Thus, Juror Kenneally’s responses created a reasonable doubt as to whether she could fairly consider Ranglin’s self-defense claim. Accordingly, the trial court erred in denying the motion to strike Juror Kenneally for cause.

Having determined that the trial court erred in denying Ranglin’s challenge to Juror Kenneally for cause, we must now determine whether the error requires a new trial. See Busby v. State, 894 So.2d 88, 96 (Fla.2004). “In the State of Florida, expenditure of a peremptory challenge to cure the trial court’s improper denial of a cause challenge constitutes reversible error if a defendant exhausts all remaining peremptory challenges and can show that an objectionable juror has served on the jury.” Id. at 96-97 (citing Trotter v. State, 576 So.2d 691 (Fla.1991)). When the trial court denied Ranglin’s challenge for cause, he exercised one of his peremptories to remove Juror Kenneally. Ranglin then requested additional peremptories, stating “I’m going to ask for an additional peremptory, the peremptory that I used on Marlene Kenneally, one-four, which was being denied for cause challenge. And I would ask for that additional peremptory to strike juror three-three, Martin Hen-dler.” The trial court denied this request.

“The juror who served need not have been ‘legally objectionable’ — that is, excusable for cause.” Carratelli v. State, 961 So.2d 312, 319 (Fla.2007) (citing Busby, 894 So.2d at 96-97). A defendant need only show “the same type of harm [peremptory] challenges are intended to cure-the seating of a juror whom the defendant suspects, but cannot prove, is biased.” Id. (citation omitted). In the instant case, the denial of the strike for cause forced Rang-lin to exhaust his peremptory challenges, precluding him from expending challenges on other identified jurors. See Bell v. Greissman, 902 So.2d 846, 848 (Fla. 4th DCA 2005). As this constitutes reversible error, we reverse and remand for a new trial.

Reversed and Remanded for a New Trial.

POLEN and CIKLIN, JJ., concur.


text:
    Charles E. LOUIS, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 4D10-3190.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Charles E. Louis, Plantation, pro se.
    Louis A. Gutierrez, Deputy General Counsel, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Suarez v. Unemployment Appeals Commission, 871 So.2d 1039 (Fla. 5th DCA 2004).

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


author: ALTENBERND, Judge.

text:
    STATEWIDE GUARDIAN AD LITEM OFFICE, Petitioner, v. OFFICE OF the STATE ATTORNEY TWENTIETH JUDICIAL CIRCUIT, Respondent.
    No. 2D10-3642.
    District Court of Appeal of Florida, Second District.
    March 18, 2011.

      Kelly Schaeffer, Statewide Guardian ad Litem Office, Tavares, for Petitioner.
    Steven Maresca and Deborah J. Cunningham, Assistant State Attorneys, Naples, for Respondent.
   ALTENBERND, Judge.

The Statewide Guardian ad Litem Office (the Statewide GAL) seeks certiorari review of numerous orders denying motions to discharge the Guardian ad Litem Program in the Twentieth Judicial Circuit from serving as guardians ad litem in certain criminal proceedings. Reluctantly, we must agree that the circuit court has no authority to compel the relatively new Statewide GAL, which is not a program of the judicial branch, to provide guardians in these cases. The circuit court has authority to appoint guardians ad litem or other advocates for children in these cases, but it cannot compel the Statewide GAL to serve in that capacity. Because the circuit court has departed from the essential requirements of the law in a manner that cannot be remedied on direct appeal, we grant the petition for writ of certiorari and quash the orders appointing the Statewide GAL as guardians ad litem in these cases.

For many years, the State Attorney has apparently filed ex parte motions in the circuit court of the Twentieth Judicial Circuit requesting the court to appoint guardians ad litem for children who allegedly have been victims or witnesses of abuse, neglect, or sexual offenses and are expected to be witnesses in the resulting criminal cases. The circuit court appoints these guardians ad litem pursuant to Administrative Order 3.7, which was issued in 1991. That local administrative order implements section 914.17(1), Florida Statutes (1990), which mandates the appointment of a “guardian ad litem or other advocate” in any criminal proceeding in which a child is a victim or witness of such abuse. The circuit court enters these orders without a hearing because the appointment of the guardian ad litem is mandatory and there has been no practical need for a hearing.

When the judges in the Twentieth Judicial Circuit began the policy of appointing the local guardian ad litem program in these cases, the program was under the jurisdiction of the judiciary. The Legislature and supreme court created the program as a volunteer pilot project and implemented it through an unpublished administrative order of the supreme court. See A.D. v. Dep’t of Health & Rehabilitative Servs., 639 So.2d 639, 644 (Fla. 2d DCA 1994). In 2003, the Legislature expressly concluded that the judicial supervision of the program created a “perceived conflict of interest.” See § 39.8296(l)(b), Fla. Stat. (2003). As a result, it created the new Statewide Guardian ad Litem Office. See Ch. 2003-53, § 1, at 412, Laws of Fla.

The Statewide GAL is “within the Justice Administrative Commission,” but it operates independently of the control of that commission. § 39.8296(2), Fla. Stat. (2010) (“The Statewide [GAL] shall not be subject to control, supervision, or direction by the Justice Administrative Commission in the performance of its duties.”). The Governor appoints the Statewide GAL’s executive director and may remove the executive director for cause. § 39.8296(2)(a). The executive director also reports to the Governor. § 39.8269(2)(a). Thus, we conclude that the Statewide GAL is not an office within the judicial branch of government but functions as an office of the executive branch of government. Since 2007, the Legislature has included language within the appropriations bills expressing its preference that the Statewide GAL fund and fulfill its duties in dependency cases before it addresses other issues. See, e.g., Ch. 2007-72, § 4, at 668, Laws of Fla. (prohibiting the Statewide GAL from representing, children in divorce proceedings “unless the child is also subject to dependency proceedings”); Ch. 2009-81, § 4, at 908, Laws of Fla. (directing the Statewide GAL not to represent children in other proceedings until “all children in dependency proceedings are represented”).

Despite the changes in the structure of the program, the circuit court in the Twentieth Judicial Circuit has continued its long-standing procedure of appointing the guardian ad litem program to specific cases, using orders that it enters without providing notice or an opportunity for the Statewide GAL to appear and argue its position. This certiorari proceeding arose because the Statewide GAL filed a significant number of virtually identical motions in criminal cases seeking orders discharging it from its appointments as guardians ad litem in these cases. The circuit court entered a single order for fourteen separate cases denying the Statewide GAL’s motions.

Procedurally, this certiorari proceeding is a true original proceeding in this court. Although this original proceeding relates to numerous criminal actions that are pending in the circuit court, this is not an appellate proceeding by a party in a lower tribunal. Instead, the Statewide GAL, as a nonparty in the lower tribunal, is challenging the authority of both the State Attorney and the circuit court to compel it to perform certain functions within those proceedings.

When this original proceeding was filed, the petitioner was described as the “Statewide Guardian ad Litem Program.” After reviewing the relevant statutes, this court was uncertain whether “the program” was actually a legal entity or merely a functional process described by statute. After seeking the positions of the parties, this court has concluded that the Statewide Guardian ad Litem Office is a legal entity created by the Legislature, and we have substituted that entity as the petitioner in the style of this opinion.

We have also considered whether this original proceeding should be designated a petition for writ of prohibition seeking to prevent the judges in the Twentieth Judicial Circuit from entering such orders. While this proceeding has been pending, the Statewide GAL has filed several such petitions seeking writs of prohibition. Given that the State Attorney has been the party in the criminal proceedings filing motions to appoint the Statewide GAL and because we conclude that relief would be appropriate under either approach to the original proceeding, we have concluded that we can grant relief in this case as a certiorari proceeding in which the State Attorney is the named respondent.

When the guardian ad litem program was under the auspices of the circuit court, no one disputed that the court had authority to appoint guardians from its own program to represent any child that needed a guardian ad litem under any statute authorizing such an appointment. Now that the Statewide GAL is an office in the executive branch, we conclude that the circuit court can no longer compel the Statewide GAL to appear and assist children in the absence of a statute that gives the court such authority over an agency in another branch of government. See art. II, § 3, Fla. Const.; Dep’t of Corr. v. Grubbs, 884 So.2d 1147, 1148 (Fla. 2d DCA 2004) (“The judiciary branch may not interfere with legislative discretion in determining the funds required of an executive branch agency nor with the agency’s executive discretion in spending appropriated funds.”); Dep’t of Children & Families v. K.R., 946 So.2d 106, 107-08 (Fla. 5th DCA 2007) (“The judicial branch may not ... interfere with an executive agency’s discretion in the spending of appropriated funds.”). The Statewide GAL is expressly designed and intended to be independent of the judiciary. Nothing in section 914.17, Florida Statutes (2010), requires the Statewide GAL to expend its resources to provide the guardians ad litem needed under that statute. We cannot conclude that the Statewide GAL is obligated to obey a judicial order to expend its resources on such guardians if the Statewide GAL itself has established other priorities.

The circuit court would appear to have the authority to find another source of “advocates” for these children. The record suggests that some of the current guardians ad litem wish to serve exclusively children in the context of section 914.17. We provide neither advice nor a solution for this problem, but we recognize that a solution is needed in order to fulfill the requirements of section 914.17.

Petition for writ of certiorari granted.

KHOUZAM and CRENSHAW, JJ„ Concur.

      . The Justice Administrative Commission is a complex governmental commission, and we caution the reader not to interpret this opinion as holding that the Commission is a part of the executive branch of the government.


text:
    Kathleen Diane LAMB, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5130.
    District Court of Appeal of Florida, Second District.
    March 18, 2011.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant, Attorney General, Tampa, for Ap-pellee.
   KHOUZAM, Judge.

Kathleen Diane Lamb pleaded guilty to obtaining drugs from a physician by withholding information. Lamb contends that the trial court erred in denying, in part, her motion to suppress certain documents obtained from her physicians. We agree and reverse and remand for further proceedings.

Law enforcement officers obtained Lamb’s prescription records for controlled substances from three pharmacies during an investigation of a possible case of “doctor shopping.” A detective then contacted the physicians who had treated Lamb, seeking “a chronological list of all controlled substances prescribed ... for the last one-year period.” In response, the physicians provided information that included lists of Lamb’s prescriptions and affidavits stating that they “had no knowledge that [Lamb] was also receiving a controlled substance of ' like therapeutic use from another practi[t]ioner within the same 30[-]day period in which [the doctors were] treating” her. The physicians further provided in their affidavits that “[i]f [they] would have known that [Lamb] was being treated by other doctors, [they] would have terminated [her] as a patient.” The information was obtained without a search warrant, a subpoena, or prior notice.

Lamb filed a motion to suppress the prescription records obtained from the pharmacies and the information obtained from the physicians. The trial court granted the motion to suppress with regard to several of the documents obtained from the physicians. The trial court denied the suppression of Lamb’s pharmacy records based on section 893.07, Florida Statutes (2008). The trial court denied the suppression of the affidavits and lists of prescriptions obtained from the physicians, finding that the items did not constitute medical records under section 456.057(7), Florida Statutes (2008). After the suppression hearing, Lamb filed an amended motion to suppress her post-Miranda statement, an affidavit signed by Dr. Gillis, and any testimony from the employees or the record custodian of the Kenaday Medical Clinic and Dr. Gillis. Lamb asserted that these items were fruit of the poisonous tree. The trial court denied the amended motion to suppress.

On appeal, Lamb argues that the trial court erred in denying her motion to suppress as to the affidavits and the lists of prescriptions obtained from the physicians. The State responds that this issue was not preserved for appeal because there was no finding or stipulation that the court’s ruling on the motion to suppress was disposi-tive. The State further contends that the court’s ruling was not dispositive of the case because the prescription information obtained from the physicians was duplica-tive of the prescription records already obtained from the pharmacies. We disagree with the State’s assertions.

During Lamb’s plea hearing, defense counsel stated that he “believe[d] the motion [to suppress] would have been dis-positive.” The trial court did not make an express finding as to whether the issue was dispositive; however, the court advised that it was “allowing] Miss Lamb to retain her appellate rights.” The court also informed Lamb that she had thirty-days to appeal and noted that “[t]his is a matter that needs to be resolved once and for all by the appellate courts of this district.” Because the trial court gave Lamb the impression that she was preserving her right to appeal the ruling on her motion to suppress, we conclude that a finding of dispositiveness can be inferred from the record. See Leisure v. State, 429 So.2d 434, 436 (Fla. 1st DCA 1983) (determining that a finding of dispositiveness was implied where trial court instructed defendant that by entering a plea he was not waiving the right to appeal suppression issue).

We also disagree with the State’s contention that the trial court’s ruling was not dispositive of the case. The record reflects that the charged offense allegedly occurred when Lamb obtained a prescription for a controlled substance from Dr. Gillis on August 13, 2008, by withholding information that she had received a prescription for a controlled substance of like therapeutic use from Dr. Hays of the Ke-naday Medical Clinic on August 4, 2008. See § 893.13(7)(a)(8). The pharmacy records include the August 13, 2008, prescription written by Dr. Gillis, but do not include the August 4, 2008, prescription written by Dr. Hays. Therefore, the prescription information obtained from the Kenaday Medical Clinic was not duplica-tive of the prescription records already obtained from the pharmacies. Because the State could not proceed to trial without the prescription information from the Ke-naday Medical Clinic, we find that the court’s ruling on Lamb’s motion to suppress was dispositive of the case. See M.N. v. State, 16 So.3d 280, 281 (Fla. 2d DCA 2009) (“A motion is dispositive if the State could not proceed to trial if the defendant prevailed on the appeal of the ruling on the motion.”).

Next, we consider whether the trial court erred in denying suppression of the physician information based on its finding that the documents did not constitute medical records under section 456.057(7). The statute, which applies to “health care practitioners,” provides as follows:

(7)(a) Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient,. except upon written authorization of the patient. However, such records may he furnished without written authorization under the following circumstances:
3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.

(Emphasis added.)

Section 456.057(6) defines “such records” as “reports and records relating to [the] examination or treatment [of the patient].” In State v. Shukitis, — So.3d — (Fla. 2d DCA 2010), the defendant’s physicians provided law enforcement officers with “information regarding the defendant’s medical treatment, such as his lists of medication and ... the fact that the defendant allegedly had a medical appointment” on a certain day. Because section 456.057 appeared to be a valid basis to suppress some or all of the physician information, this court remanded the case for the trial court to determine whether the information should be suppressed. — So.3d at —.

Accordingly, as in Shulcitis, we reverse the trial court’s order with regard to the physicians’ affidavits and lists of Lamb’s prescriptions. On remand, the trial court should reconsider the suppression of these items under section 456.057(7)(a) and make specific findings as to which portions of the physician information constituted “reports and records relating to [the] examination or treatment” of Lamb. See § 456.057(6); Shukitis, — So.3d at —; see also State v. Here, — So.3d — (Fla. 2d DCA 2011) (remanding to determine whether physicians’ statements to detective involved medical records as defined in section 456.057(6)). Because we are remanding this case for further consideration, we also direct the trial court to reconsider whether Lamb’s post-Miranda statement, the affidavit signed by Dr. Gillis, and any testimony from the employees or the record custodian of the Kenaday Medical Clinic and Dr. Gillis are subject to suppression in light of this opinion.

Reversed and remanded for further proceedings.

WALLACE and MORRIS, JJ., Concur.

      . Both Lamb and the State stipulated that several of the documents obtained from the physicians were inadmissible. The trial court also found that prescriptions obtained from, and written by, Dr. Kamajian were medical records. The court suppressed these items.

      . Lamb does not challenge this portion of the ruling on appeal, and the trial court did not err in denying the suppression of Lamb’s pharmacy records of her prescriptions for controlled substances. See State v. Tamulonis, 39 So.3d 524 (Fla. 2d DCA 2010), cert. denied, 52 So.3d 662 (Fla.2011).

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

      . We note that the trial court did not have the benefit of the Shulcitis decision at the time of the hearing on Lamb’s motion to suppress.


text:
    ACCREDITED SURETY & CASUALTY, INC., Petitioner, v. CHIEF JUDGE, SIXTH JUDICIAL CIRCUIT OF FLORIDA, Respondent.
    No. 2D10-4054.
    District Court of Appeal of Florida, Second District.
    March 18, 2011.
    Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando; and Peter Antonacci of GrayRobinson, P.A., Tallahassee, for Petitioner.
    J. Thomas McGrady, Chief Judge, Sixth Judicial Circuit, Clearwater; and B. Elaine New, Court Counsel, St. Petersburg, for Respondent.
    James Marion Moorman, Public Defender, Robert A. Young, General Counsel, and Karen M. Kinney, Assistant Appeals Director, Bartow, for Amicus Curiae Florida Public Defender Association.
    H. Beth Lastinger, Associate General Counsel, Pinellas County Sheriffs Office, Largo, for Amicus Curiae Jim Coats, Sheriff of Pinellas County.
   PER CURIAM.

Because we conclude that the Petitioner lacks standing, the petition for writ of certiorari is dismissed.

WHATLEY, NORTHCUTT, and SILBERMAN, JJ„ Concur.


text:
    In re Jane DOE.
    No. 4D11-919.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2011.
    Ana Gomez-Mallada, Fort Lauderdale, for petitioner.
   PER CURIAM.

The minor appeals the trial court’s order deferring her petition for a judicial waiver of parental notice for termination of pregnancy, pending completion of a court-ordered mental health exam. Because no final order has been rendered, we treat the notice of appeal as a petition for a writ of mandamus, and the statute compels the automatic granting of the petition.

Pursuant to section 390.01114(4)(b), Florida Statutes (2010), the trial court “shall rule, and issue written findings of fact and conclusions of law, within 48 hours after the petition is filed, except that the 48-hour limitation may be extended at the request of the minor.” If the court does not rule within 48 hours, the petition is automatically granted, and the clerk must issue the minor a certificate indicating that the notice requirement is waived. Fla. R. Juv. P. 8.820(d)(3).

In this case, the trial court did not rule within 48 hours, and the record does not indicate that the minor consented to the extension of time. Neither the Rules of Juvenile Procedure nor section 390.01114 permits the trial court to defer ruling on a petition for judicial waiver pending a psychological evaluation of the minor. As such, the petition was automatically granted after the expiration of the initial 48-hour window. See In re A.S., 909 So.2d 524, 525 (Fla. 1st DCA 2005). Accordingly, we remand with instructions for the trial court to enter an order granting petitioner’s petition and for the clerk of the circuit court to issue a certificate of judicial waiver of notice to petitioner.

The record also reflects that petitioner is a resident of Miami-Dade County. Section 390.01114(4)(a) states that a minor may seek a judicial waiver in “any circuit court in a judicial circuit within the jurisdiction of the District Court of Appeal in which she resides.” The statute establishes the proper venue for these kinds of cases and is not jurisdictional. In re Doe 07-B, 973 So.2d 627, 629 (Fla. 1st DCA 2008). Because petitioner resides in the jurisdiction of the Third District Court of Appeal, venue in the Seventeenth Judicial Circuit was not proper, and the trial court should have transferred the case to a circuit court within the proper appellate district. However, as the statute is not jurisdictional, and as expeditious review is required, we do not believe that transfer at this date is required or warranted.

Petition granted with instructions.

WARNER, CIKLIN and LEVINE, JJ„ concur.


author: PER CURIAM. GUIDRY, J.,

text:
    STATE of Louisiana v. Jamal ALLEN.
    No. 2010-KK-1016.
    Supreme Court of Louisiana.
    May 7, 2010.
   PER CURIAM.

|,In State v. Waters, 00-0356 (La.3/12/01); 780 So.2d 1053, the defendant was lawfully stopped for a traffic violation. When the investigating officer determined the defendant had two prior felony arrests, he lawfully conducted a self-protective search of the vehicle’s interior for a firearm. While performing this search, he detected the distinct odor of marijuana. This Court found that the officer’s detection of that odor gave rise to probable cause to search the vehicle’s interior for contraband.

This logical extension of the plain view doctrine has been specifically adopted by name by numerous courts, including the United States Court of Appeals for the Fifth Circuit. See, e.g., U.S. v. Pierre, 958 F.2d 1304, 1310 (5th Cir.1992) (en banc) (finding that a Border Patrol Agent who, at a non-border fixed 12checkpoint, leaned his head into the defendant’s driver side window and smelled freshly burned marijuana, acquired probable cause under the plain view (or plain smell exception) as to the existence of contraband within the vehicle and could search it as well as its contents.)

In the current case before this Court, both officers testified as to the odor of marijuana emanating from the defendant’s vehicle which they had lawfully stopped. Moreover, both officers observed the burnt ends of apparent marijuana cigarettes on the console of the vehicle. Probable cause to search the vehicle, under these facts, is indisputable.

The ruling of the trial court is reversed.

GUIDRY, J.,

concurs and assigns reasons.

| T During the commission of a lawful traffic stop, the officers observed partially burnt marijuana cigarettes that were in plain view on the vehicle’s center console. This observation, coupled with the officers’ immediate detection of a strong odor of marijuana emanating from the vehicle, provided sufficient probable cause for the search.


text:
    STATE of Louisiana v. Jeffery Paul DENBY.
    No. 2010-OK-0014.
    Supreme Court of Louisiana.
    May 13, 2010.
   On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Beauregard.

The district court is ordered to provide the applicant with a copy of the transcript of the July 16, 2009 preliminary examination no later than May 17, 2010. The cover sheet identifying the names referred to in the transcript need not be provided. The district court’s order closing the courtroom and/or sealing all pre-trial proceedings is reversed. See La. Const. art. I, § 22.

      . The writ application in this case was filed in this Court on January 5, 2010. The information on the application sheet filled out by applicant’s counsel stated that it was not a "priority.” For this reason, the writ application was not handled as a priority and was not directed to the proper office until May 10, 2010, after receipt of counsel's letter stating that the matter was set for trial on May 17, 2010.


text:
    In re Madelyn A. Pavon SURIEL.
    No. 2009-OB-2488.
    Supreme Court of Louisiana.
    Dec. 17, 2010.
   PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Madelyn A. Pavón Suriel, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. During this period, petitioner shall provide evidence to the Office of Disciplinary Counsel, on at least a quarterly basis, demonstrating that she has made a good faith effort to satisfy her financial obligations. Should petitioner fail to make a good faith effort to satisfy her financial obligations, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


author: JOHNSON, J.

text:
    STATE of Louisiana v. Ernest ALLEN.
    No. 2010-KP-306.
    Supreme Court of Louisiana.
    Jan. 7, 2011.
   JOHNSON, J.

would grant this writ application.

hln this matter, Ernest Allen (“the relator”) was found guilty of first degree murder and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in 1994. The court of appeal affirmed, State v. Allen, 94-1895 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078, and this Court denied his writ application. State v. Allen, 95-2475 (La.2/2/96), 666 So.2d 1087.

In 2006, the relator filed a Motion For New Trial and application for post conviction relief based on newly discovered evidence, which the district court denied, finding the application untimely. The court of appeal denied writs, finding that the relator’s claim for post-conviction relief is time barred under LSA-C.Cr. P. art. 930.8(1). State v. Allen, 09-1475 (La.App. 4 Cir. 1/7/11), 55 So.3d 757, 2011 WL 46776.

The relator argues that newly discovered evidence entitles him to a new trial. Specifically, at the Motion for New Trial hearing, Ms. Denise Robateau testified that |2on the day of the murder she saw two men named “Eric and Levi” emerge from a white truck with guns in their hands and approach the victims. Afraid for her safety, she ran to a nearby store, and once inside heard gunshots. She further testified that she did not see the shooting and did not tell police the names of the people she saw out of fear. The next day, the two men (Eric and Levi) approached her and asked what she had told the police. Thereafter, she fled the city and was not located until after Hurricane Katrina in 2006, when she was asked to appear on the relator’s behalf. Subsequently, the relator filed a Motion for New Trial within one year of her discovery.

LSA-C.Cr.P. art. 930.8 provides in pertinent part:

(A) No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following apply:
(1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his attorney.

In this case, it appears this new information, not contained in the police report, was discovered only after Ms. Robateau was located. Before the witness was located, the relator had no new evidence, other than the police report, to present to the court. Because the relator has demonstrated that he did not locate Ms. Roba-teau until several years after his conviction became final, the lower courts erred when they dismissed the relator’s application as untimely filed. The evidence presented by relator constitutes facts “not known to the petitioner or his attorney” under LSA-C.Cr.P. art. 930.8(1)(A) and the code article “imposes no express diligence requirement .... [and] even if exculpatory material was at some time ‘knowable,’ an application based Ron it may still qualify under the new facts exception to the time bar.” Carlin v. Cain, 97-2390, pp. 1-2 (La.3/13/98), 706 So.2d 968, at 968-69.

For the above reasons, I would grant the relator’s application and remand the case to the district coui*t and order that it consider whether Ms. Robateau’s testimony “undermine[s] the prosecution’s entire case,” thereby satisfying the standard set out in State v. Conway, 2001-2808 (La.4/12/02), 816 So.2d 290, requiring the vacation of relator’s conviction, unless the state establishes that the events not under its control have prejudiced its ability to “respond to, negate, or rebut” the newly discovered evidence pursuant to LSA-C.Cr.P. art. 930.8(B).