author: MARSTILLER, J.

text:
    Henry A. JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2469.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2012.

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Henry A. Jenkins (“Appellant”) seeks reversal of his conviction for armed robbery, asserting two errors by the trial court. First, he argues that the court erred by denying his motion to suppress the victim’s out-of-court identification of him as her assailant. Second, he argues that the court erred by failing to declare a mistrial after the prosecutor commented on his demeanor during closing argument. We conclude that the show-up identification procedure the police used in this case was not unnecessarily suggestive and did not create a substantial likelihood of mis-identification. We further conclude that the prosecutor’s comment, although improper, was isolated and did not affect the fairness of the trial. For these reasons, we affirm Appellant’s conviction.

I. Motion to Suppress

Upon returning from work to her apartment complex the night of February 5, 2010, Lauren Jiminez noticed three men sitting in a gold Saturn in the parking lot. As she walked up the stairs to her apartment, someone approached her from behind and said “Don’t move.” She claimed that when she turned around, she saw a man wearing a ski mask pointing a gun at her. She described the robber as taller than her, with a long black shirt and black pants. The robber made her lie on the ground, then took her purse and ran away.

Ms. Jiminez called 911 from a neighbor’s apartment and described the gold Saturn to the police. Approximately twenty minutes later, police took her to a gas station in the vicinity and showed her two men, one at a time. Although she had not seen the assailant’s face during the robbery, she was 90% sure that the first man police showed her — Appellant—was the robber based on his weight, height, and clothing. Appellant was in handcuffs and stood roughly fifty feet away from Ms. Jiminez, illuminated by the spotlight and headlights of a police cruiser. She identified the second man, who was wearing a red shirt, as another individual she saw inside the gold Saturn. The police then took her to a nearby site where the gold Saturn had crashed,'and she identified her purse and personal belongings at the scene.

Appellant moved pretrial to suppress the victim’s out-of-court identification, arguing that the show-up procedure the police used was impermissibly suggestive because Appellant was in handcuffs when presented to the victim. He also argued that the procedure created a substantial likelihood of misidentification since the victim did not see the assailant’s face, and said she was only 90 percent sure the suspect indeed was the man who robbed her. The State responded that the show-up occurred mere minutes after the robbery, and the victim had independent grounds to identify Appellant as he was the same body type and was wearing the same black shirt and pants as the robber. The trial court denied the motion, finding the out-of-court identification not “unduly suggestive.”

We review the denial of Appellant’s motion to suppress the victim’s out-of-court identification for abuse of discretion. See Jordan v. State, 637 So.2d 361 (Fla. 1st DCA 1994). “The test for suppression of an out-of-court identification is twofold: (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification; and (2) if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.” Rimmer v. State, 825 So.2d 304, 316 (Fla.2002). If the procedures used to obtain the out-of-court identification were not “unnecessarily suggestive,” the court need not consider the second part of the test. See Fitzpatrick v. State, 900 So.2d 495, 518 (Fla.2005).

The show-up identification procedure police used in this case “is, by its nature, suggestive in that, unlike a line-up, a witness is presented with only one possible suspect for identification[.]” State v. Cromartie, 419 So.2d 757, 759 (Fla. 1st DCA 1982). See Perez v. State, 648 So.2d 715, 719 (Fla.1995). But show-ups are not invalid “unless the police aggravate the suggestiveness of the confrontation,” State v. Jackson, 744 So.2d 545, 548 (Fla. 5th DCA 1999), or the procedure “give[s] rise to [a] substantial likelihood of irreparable misidentification under the totality of circumstances.” Cromartie, 419 So.2d at 759. Nothing in the record indicates that the police did anything to render Appellant’s show-up unnecessarily suggestive. Appellant asserts that presenting him to the witness in handcuffs tainted the procedure. But keeping a suspect in handcuffs is insufficient, without more, to invalidate a show-up. See Jackson 744 So.2d at 548.

Circumstances to consider in determining whether the show-up procedure created a substantial likelihood of irreparable misidentification include:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Perez, 648 So.2d at 719 (quoting Neil v. Biggers, 409 U.S. 188, 199, 98 S.Ct. 375, 34 L.Ed.2d 401 (1972)). Here, the victim, Ms. Jiminez, was able to observe her assailant’s clothing and build during the robbery, and she identified Appellant based on those factors. Her detailed descriptions of him and the vehicle she saw him and his cohorts in enabled police to apprehend the group and conduct the show-up only twenty minutes after the robbery occurred. Because the robber wore a mask, Ms. Jiminez was not completely certain in identifying Appellant as the man who robbed her. But she was 90 percent sure, and in light of her accurate description of him to police, and the mere twenty-minute period between the robbery and the show-up, the likelihood of misidentification was slight. Under these circumstances, we find no abuse of discretion by the trial court in denying Appellant’s motion to suppress the out-of-court identification.

II. Motion for Mistrial

At trial, Appellant moved for a mistrial after the prosecutor made the following statements during his closing:

The defense has asked you to evaluate the demeanor [of the] different witnesses that testified before you today. I also encourage you to review the demeanor of the defendant himself.
While [the assistant prosecutor] was making his opening statement, and he sat there smiling at you, he thinks this is funny, this is all a joke.

The focus of the motion for mistrial was the prosecutor’s final comment that Appellant thought the proceeding was “funny” and “all a joke.” The trial court found insufficient grounds to grant a mistrial and denied the motion. Appellant did not seek a curative instruction.

A trial court should grant motion for mistrial only when doing so is necessary to ensure the defendant receives a fair trial. See Hamilton v. State, 703 So.2d 1038, 1041 (Fla.1997) (stating “a mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial”); Gudinas v. State, 693 So.2d 953, 964 (Fla.1997). We review the denial of Appellant’s motion for mistrial for abuse of discretion. See Evans v. State, 995 So.2d 933, 953 (Fla.2008).

A prosecutor’s comments, to justify a mistrial, “must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have otherwise.” Spencer v. State, 645 So.2d 377, 383 (Fla.1994). The comment at issue here was improper as it invited the jury to consider Appellant’s demeanor off the witness stand. See Rodriguez v. State, 609 So.2d 493, 501 (Fla.1992) (stating that prosecutor’s comment that defendant appeared to be sleeping was “clearly improper,” and that defendant’s demeanor while not on witness stand “is not a proper subject for argument”). But the comment was isolated, and there was ample evidence of Appellant’s guilt — including a co-defendant’s testimony that Appellant instigated and committed the robbery, and testimony from police officers that they apprehended Appellant still in possession of Ms. Jiminez’s purse. Thus, we conclude the comment, albeit improper, did not justify granting a mistrial. Cf. Wellons v. State, 87 So.3d 1223,1224-25 (Fla. 3d DCA 2012) (holding that prosecutor’s comment that defendant “was so bored that he took a nice long yawn” was improper, but isolated, and not grounds for mistrial).

AFFIRMED.

VAN NORTWICK and ROBERTS, JJ., concur.

      . As described by one officer, "[a] show-up is where you have your suspects, and they’re at the scene, you leave them at the scene, and bring the victim to the scene, and then you put all sorts of lights on them so the suspect can’t see anything, and the victim kind of hides in the backseat and looks over them. If [the victim] can physically identify him or not, they'll say that, that was the person they remember or not.”


source: Caselaw Access Project

author: CRENSHAW, Judge.

license: Public Domain

text:
    Karri HUGHEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3294.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 2012.
    Michael Schneider, Naples, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   CRENSHAW, Judge.

Karri Hughen appeals her judgment and sentence to ten years’ prison to be followed by twenty years’ probation after she pleaded guilty to organized fraud and communications fraud. Because the trial court erred by summarily denying Hughen’s oral motion to withdraw her plea before sentencing, we reverse and remand for an evidentiary hearing.

In December 2010, Hughen pleaded guilty to one count of scheme to defraud and 124 counts of communications fraud. At the June 2011 sentencing hearing, Hu-ghen’s counsel presented an allegedly exculpatory letter from Hughen’s husband. Hughen’s counsel stated that Hughen was “now maintaining her innocence.” Upon further inquiry by the trial court, Hughen stated, “I didn’t realize when — in December, what I was agreeing to. It was not what my attorney told me I was agreeing to.” The trial court noted that Hughen was represented at the plea hearing by different counsel, and it explained to Hu-ghen, “you can file a motion to this Court and I can reconsider your affidavits, but I have to do that by affidavits, not just by conversation.” The trial court then declared,

I’m here on a plea agreement I accepted in December of 2010, for the reasons I’ve told you, because you asked me to. If [former defense counsel] fooled you or anything else, [current defense counsel], I’m certain will put in the appropriate form for me to consider, so other than that, the Court is going to enforce this agreement. Today is the day.

Hughen’s counsel then clarified that Hu-ghen’s intent at the sentencing hearing was to withdraw her plea and go to trial. Despite this assertion, the trial court sentenced Hughen accordingly.

We conclude that the trial court erred when it summarily denied Hughen’s presentence oral motion to withdraw her plea. Florida Rule of Criminal Procedure 3.170(f) provides that “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn .... ” (Emphasis added.) “Because the law favors a trial on the merits, [rule 3.170(f) ] should be liberally construed in favor of a defendant.” Moraes v. State, 967 So.2d 1100, 1101 (Fla. 4th DCA 2007) (citing Smith v. State, 840 So.2d 404, 406 (Fla. 4th DCA 2003)). And “where a motion presents a sufficient basis for withdrawal of a plea, a trial court commits reversible error if it fails to ‘conduct an evidentiary hearing in order to develop the facts surrounding the entry of the plea.’ ” Crane v. State, 69 So.3d 357, 359 (Fla. 2d DCA 2011) (quoting Caddo v. State, 806 So.2d 520, 521 (Fla. 2d DCA 2001)).

Here, Hughen asserted at the sentencing hearing that she was misad-vised by her prior counsel at the time she entered her plea. Because “[a] defendant’s entry of a plea based upon his attorney’s mistaken advice can be a valid basis for finding good cause,” Nicol v. State, 892 So.2d 1169, 1171 (Fla. 5th DCA 2005), we conclude that the trial court reversibly erred by failing to conduct an evidentiary hearing to determine if Hughen could establish good cause to withdraw the plea. And contrary to the trial court’s implied assertion that a written motion was required, we note that Hughen was entitled to be heard on her oral motion to withdraw the plea. See, e.g., Lehmkuhle v. State, 20 So.3d 971 (Fla. 2d DCA 2009) (concluding that defendant was entitled to a hearing on his presentence oral motion to withdraw plea); Morales v. State, 973 So.2d 679 (Fla. 2d DCA 2008) (same).

Accordingly, we vacate Hughen’s sentence and remand for the trial court to hold an evidentiary hearing on the motion to withdraw plea.

Reversed and remanded.

DAVIS and WALLACE, JJ„ Concur.


author: MORRIS, Judge.

text:
    Cesar Tarapiello ZAMORA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4819.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 2012.
    Cesar Tarapiello Zamora, pro se.
   MORRIS, Judge.

Cesar Tarapiello Zamora appeals the summary denial of his motion for jail credit, which the postconviction court properly treated as one filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Zamora sought an additional 592 days of jail credit to be applied to his sentence for manufacture of cannabis, the fourth count of an amended information. The State has conceded error and agrees that Zamora is entitled to the additional jail credit on the manufacture count because it was part of the same single criminal episode as the other three counts on which he was sentenced and for which he received the correct amount of jail credit. See Johnson v. State, 978 So.2d 872, 872 (Fla. 2d DCA 2008); see also Roberts v. State, 64 So.3d 1285, 1286 (Fla. 2d DCA 2011); Bronk v. State, 25 So.3d 701, 703 (Fla. 2d DCA 2010). The postconviction court denied the instant motion as successive to an earlier motion for jail credit, which was denied, but the instant motion is not barred as successive because “the award of jail credit is clearly incorrect as a matter of law and a failure to correct that error would result in manifest injustice.” Bronk, 25 So.3d at 703 (citing State v. McBride, 848 So.2d 287 (Fla.2003)). Accordingly, we reverse the order on appeal and remand for the postconviction court to award Zamora a total of 642 days of jail credit on the manufacture of cannabis count.

Reversed and remanded.

DAVIS and WALLACE, JJ„ Concur.


author: PER CURIAM.

text:
    Carl W. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1979.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2012.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted for four counts of possession of a firearm by a convicted felon. All counts arose out of a single event during which Appellant possessed four different firearms. Appellant argues, and the State concedes, that the convictions violate double jeopardy principles. See Hill v. State, 711 So.2d 1221, 1224-25 (Fla. 1st DCA 1998) (holding that “the prohibition against double jeopardy precludes more than one conviction for the possession at the same time of multiple firearms by a convicted felon”); see also Owens v. State, 681 So.2d 1194, 1194 (Fla. 2d DCA 1996) (reversing fifteen charges of possessing a firearm by a convicted felon as violating double jeopardy); Plowman v. State, 622 So.2d 91, 92 (Fla. 2d DCA 1993) (reversing three counts of possession of a firearm by a convicted felon as violating double jeopardy).

Accordingly, we vacate Appellant’s convictions and sentences for three counts of possession of a firearm by a convicted felon, vacate the sentence for the one remaining count, and remand for resentenc-ing on that count. See Owens, 681 So.2d 1194.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Edward B. LOFLEY, Jr., Appellant, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Appellee.
    No. 1D11-3518.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2012.
    Edward B. Lofley, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Ana Gargollo-McDonald, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Edward B. Lofley, Jr., appeals an order of the circuit court dismissing his petition for writ of mandamus for failure to demonstrate the exhaustion of available administrative remedies. Based on appellee’s commendable concession that there may have been irregularities in the processing of appellant’s grievances and that dismissal was thus unwarranted, the order dismissing Lofley’s petition is reversed and the matter is remanded to the circuit court for further proceedings.

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


author: PER CURIAM. WOLF, J.,

text:
    Michael Donell REED, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4216.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2012.
    Sonya Rudenstine, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

ROWE and SWANSON, JJ., concur; WOLF, J., Concurs with Opinion.

AFFIRMED.

WOLF, J.,

Concurring.

I concur that no reversible error occurred in this case. I write to express my concern with the manner by which the appellant was provided his Miranda warnings. On the videotaped custodial interrogation, the police officer read the Miranda warnings in a rapid fire manner. This is problematic. The purpose of the Miranda warnings is to provide a procedural safeguard effective to secure and inform an accused person of the privilege against self-incrimination in a meaningful manner and to protect against overzealous interrogation. “The requirement of warnings and waiver of rights is a[sic] fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Effective warnings are not simply a “preliminary ritual” rattled off at the beginning of questioning. It is necessary that the warnings be communicated at a normal cadence.

“Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that ‘illegitimate and unconstitutional practices get their first footing ... by silent approaches and slight deviations from legal modes of procedure.’ ” Miranda, 384 U.S. at 459 (quoting Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746 (1886)). No matter what this officer or any other person feels about the necessity of providing the Miranda warnings to a suspect likely to already be familiar with his or her rights, it is the law of the land. A trick, such as speeding through the warnings, is just the “slight deviation” that should not be used to circumvent the law or encroach on a suspect’s rights.

Were it not for other competent, substantial evidence upon which the trial court could rely demonstrating that appellant understood and waived his rights, I would vote to reverse.


text:
    Kendal MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0798.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2012.

      Kendal Martin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about June 23, 2011, in Bay County Circuit Court case number 2011-000193-CFMB, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the appeal authorized by this opinion.

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


author: PER CURIAM. LAWSON, J.,

text:
    Tarique A. BAGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4418.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, and Nora Hutchison Hall, Assistant Public Defenders, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Tarique A. Bagley challenges the trial court’s failure to award additional jail credit toward a sentence imposed after he admitted violating his probation by committing a new crime in an adjacent county. Bagley finished serving his sentence during the pendency of this appeal, and has now filed a notice of voluntary dismissal. We agree that the jail credit issue is moot, and accept the dismissal.

APPEAL DISMISSED.

PALMER and JACOBUS, JJ., concur.

LAWSON, J., concurs and concurs specially opinion.

LAWSON, J.,

concurs specially with opinion.

I agree with the panel’s decision to permit the voluntary dismissal of this case, but write to address our court’s precedent in Smith v. State, 41 So.3d 977 (Fla. 5th DCA 2010), which the trial court correctly declined to apply in light of Ransone v. State, 48 So.3d 692 (Fla.2010). Smith held that when sentencing a defendant following revocation of probation based upon a new offense, the trial court must credit the defendant with time served on the new offense. In this case, for example, Bagley was placed on probation in Orange County on May 18, 2010, after entering a nolo contendere plea to a charge of possession of ammunition by a convicted felon.

While serving this probationary sentence, Bagley was arrested in Osceola County for delivery of cocaine on December 15, 2010. He was ultimately convicted of that charge, and sentenced to prison for one year and a day, with credit for time served beginning with the date of his arrest on December 15, 2010. Following the completion of his Osceola County sentence, Bagley was brought before the Orange County court to deal with his violation of probation. Bagley admitted the violation, based solely upon the Osceola County crime, and was sentenced to 357 days in the Orange County jail with credit for 40 days time served. Bagley then filed a motion seeking credit for the entire 366 days served on the Osceola County charge, relying on Smith.

Although the holding in Smith would require that the trial court grant the additional credit in this case, the trial court properly determined that the issue was controlled by the later-issued opinion in Ransone.

In Ransone, the defendant was sentenced to community control followed by probation on a charge of grand theft committed in Broward County. He then committed new offenses in Miami-Dade County, for which he was sentenced to time served before being transported to Bro-ward County to deal with his community control violation. Ransone was ultimately sentenced to five years in state prison on the Broward County grand theft charge, and argued that he should receive credit for time served against this sentence beginning with the date of his arrest on the Miami-Dade County offenses. The trial court denied the additional credit, and the Fourth District affirmed, Ransone v. State, 20 So.3d 445 (Fla. 4th DCA), approved, 48 So.3d 692 (Fla.2010), certifying conflict with Thorpe v. State, 744 So.2d 1256 (Fla. 3d DCA 1999), disapproved of by Ransone, 48 So.3d at 694. As explained in Ransone, even when a defendant is arrested at the same time for multiple unrelated offenses, credit for time served should only be awarded against the sentence for a single offense unless the sentences for the unrelated offenses are ultimately imposed concurrently. 20 So.3d at 448-49. By contrast, where the defendant is given consecutive sentences, a defendant is “not considered to be jailed for multiple offenses simultaneously” and the “pyramiding of credit would [improperly] reward the recidivist criminal.” Id. at 449. Accordingly, when a defendant is given consecutive sentences on multiple charges he “ ‘is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.’ ” Id. (quoting Daniels v. State, 491 So.2d 543, 545 (Fla.1986) (emphasis in original)).

The contrary special rule followed in Smith can be traced back to Gordon v. State, 379 So.2d 1022 (Fla. 1st DCA 1980). In Gordon, the sole basis for the defendant’s violation of probation was a new offense for which the defendant had been acquitted by a jury. Therefore, the defendant in Gordon would never be sentenced on the new charge that violated his probation, and the rule in that context would not result in a pyramiding of jail credit. In that limited context, I see no problem with requiring the trial court to credit the defendant with the time spent in jail awaiting disposition of a new charge that violates the defendant’s probation. But, here, where the defendant was convicted and sentenced on the new charge, I believe that the trial court properly applied Ran-sone and determined that there was no requirement that Bagley be given credit for time served on the Osceola County offense when the court imposed the consecutive Orange County sentence following revocation of Bagley’s probation.

In other words, in light of Ransone, the rule announced in Smith should be limited to cases similar to Gordon (where the defendant’s probation is revoked based solely upon a new crime for which the defendant has been acquitted) and to cases where the trial court imposes the VOP sentence concurrently with the sentence(s) on the- new charge(s). This same limitation should apply to two other opinions, issued prior to Ransone, that appear to improperly apply the rule announced in Gordon to a VOP sentence imposed consecutively to sentence(s) for the new offense(s) that violated the defendant’s probation: Kendrigan v. State, 941 So.2d 529 (Fla. 4th DCA 2006) and Lavrich v. State, 633 So.2d 1177 (Fla. 4th DCA 1994). Even after Ransone, a trial court retains the discretion to award pyramiding credit for consecutive sentences. See e.g., Gregg v. State, 43 So.3d 818, 819 (Fla. 1st DCA 2010). But, contrary to the holdings in Lavrich, Kendri-gan and Smith, the trial court is not legally required to do so.


text:
    Daniel A. LECLERC, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2903.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2012.
    Daniel A. LeClerc, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Victor JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1576.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm the revocation of Appellant’s probation and the imposed sentence. However, on remand, the trial court shall correct several scrivener’s errors. The order revoking Appellant’s probation must specify the specific conditions violated. Etienne v. State, 82 So.3d 1187 (Fla. 5th DCA 2012). Further, the scoresheet must be corrected to delete the twelve points assessed under section 948.06(8), Florida Statutes (2011). The trial court removed Appellant’s designation as a Violent Felony Offender of Special Concern, but failed to correct the scoresheet.

AFFIRMED; REMANDED for CORRECTION OF SCRIVENER’S ERRORS.

ORFINGER, C.J., SAWAYA and COHEN, JJ., concur.


text:
    Levory W. HICKMON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1663.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Back in 2004, this Court stated:
For the tenth time in a very short time, petitioner, Levory William Hick-mon, is attempting to attack his conviction and/or sentence for possession of cocaine in Seminole County Circuit Court Case No. 01-574-CFB. Also, Hickmon has repeatedly attacked his convictions and/or sentences in his other Seminole County Circuit Court cases despite already serving those sentences. Hickmon is scheduled to be released in his current case in less than a year.
Hickmon was ordered to show cause why he should not be denied further access to this court pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). We find his response unconvincing. Hick-mon’s current petition lacks merit and represents an effort to circumvent the limitations placed on successive post conviction attacks of criminal convictions by the Criminal Appeal Reform Act of 1996 and Florida Rule of Criminal Procedure 3.850. Furthermore, meritless and successive claims are time consuming and impede the efficiency of the court. See Gaffney v. State, 878 So.2d 470 (Fla. 5th DCA 2004); Donovan v. State, 868 So.2d 667 (Fla. 5th DCA 2004).

We therefore barred Mr. Hickmon from any other pro se filings. Hickmon v. State, 887 So.2d 408, 408-09 (Fla. 5th DCA 2004). This did not deter him in any way and he repeated his behavior as it related to his 2002 Seminole County case, including making sworn statements of dubious veracity. However, now, in addition to barring Mr. Hickmon from future pro se filings, this court has the ability to recommend to the Department of Corrections that it impose disciplinary sanctions for Mr. Hickmon’s continued abuse of the judicial process. See §§ 944.279(1), 944.28(2)(a), Fla. Stat. (2011).

We do so now. See Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”); Johnson v. State, 941 So.2d 533 (Fla. 5th DCA 2006) (banning defendant from pro se filings for the second time). The Clerk of this Court is directed not to accept any further pro se filings concerning Seminole County Circuit Court Case No. 02-3627-CFB from Levo-ry W. Hickmon, and any further pleadings will be summarily rejected by the Clerk unless filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to Mr. Hickmon and the appropriate institution for consideration of available disciplinary procedures. Rehearing will not be entertained.

Petition DENIED; Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Mr. Hickmon and the Department of Corrections.

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


text:
    Eric AZERZER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4070.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.

      Rose M. Feller, of Feller Law Group, Longwood, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Eric Azerzer appeals from his convictions and sentences following a jury trial on charges of false imprisonment, falsely personating a law enforcement officer, and battery. We affirm the false imprisonment and battery convictions, but reverse the falsely personating a law enforcement officer conviction based upon an error in the jury instructions as to this charge.

Under section 843.08, Florida Statutes (2010): “A person who falsely assumes or pretends to be a ... federal law enforcement officer ... and takes upon himself or herself to act as such ... commits a felony of the third degree.” (emphasis added). Without objection, the trial judge incorrectly instructed that the State had to prove that the defendant “falsely assumed or pretended to be a federal law enforcement officer or took it upon himself to act as such.” (emphasis added). This error was fundamental under Martinez v. State, 981 So.2d 449 (Fla.2008) (explaining that an error in jury instructions is fundamental if it affects a disputed element of a crime and “ ‘is pertinent or material to what the jury must consider in order to convict ...’”) (quoting State v. Delva, 575 So.2d 643, 645 (Fla.1991)). Here, Azerzer’s defense focused on the first element of what should have been a two-element crime. A witness testified that Azerzer claimed to be an FBI agent. Azerzer testified that he was a licensed bail bondsman who never claimed to be an FBI agent — and argued that the witness must have misunderstood him or been confused. Based upon this dispute in the evidence, Azerzer argued that the State had not proven beyond a reasonable doubt that he assumed or pretended to be a federal law enforcement officer. Considering the erroneous instruction, however, the jury could have decided that it need not even resolve this factual dispute to return a verdict of guilty, since Azerzer was “acting” like a law enforcement officer when searching for a fugitive.

Accordingly, we reverse the conviction for falsely personating a law enforcement officer, and remand for further proceedings with respect to that charge only.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

SAWAYA, LAWSON and COHEN, JJ„ concur.

      . For the first two charges, both third degree felonies, the trial court imposed concurrent sentences of three years of supervised probation, with a special condition that the defendant work 100 hours of community service. For the battery charge, the trial court imposed a time-served jail sentence.

      . Azerzer raises one issue with respect to these convictions, arguing that the trial court erred by not instructing the jury that as a licensed bail bondsman he was legally authorized to use reasonable force while in pursuit of or attempting to apprehend a fugitive. We find no merit to this issue. Azerzer neither objected to the jury instructions nor request a special instruction regarding his status as a bail bondsman. Even if requested, we question whether Azerzer would have been entitled to such an instruction in this case, where the victim of Azerzer’s crimes was clearly not a fugitive that Azerzer was seeking and where Azerzer knew this to be the case before he approached the victim. Azerzer’s defense at trial was that he was acting in self defense, and the jury was properly instructed as to this theory.


text:
    STATE of Florida, Petitioner, v. Gregory Randel WHITT, Respondent.
    No. 5D12-2040.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    Lawson L. Lamar, State Attorney, and Chris A. Lerner, Assistant State Attorney, Orlando, for Petitioner.
    Gregory Randel Whitt, Orlando, pro se.
   PER CURIAM.

The State seeks certiorari review of the circuit court order entered on April 23, 2012, which found that Gregory Randel Whitt’s name should be removed from the Florida Department of Law Enforcement (“FDLE”) Sexual Offender Registry. We find that the court departed from the essential requirements of law and quash the order.

In February 1997, Whitt pled no contest to a lewd act on a child. Adjudication of guilt was withheld and he was sentenced to six months community control to be followed by four years probation. Thereafter, Whitt was charged with violating the terms of his community control/probation and, in March 2001, he was adjudicated guilty of the underlying crime and sentenced to nine months in the county jail. At some point after this conviction and sentence, FDLE advised Whitt that he is classified as a sexual offender and is required to register pursuant to section 943.0435, Florida Statutes. FDLE also informed him that the registry restrictions imposed by section 794.065, Florida Statutes, are applicable to him.

Whitt subsequently filed a motion to declare section 794.065, Florida Statutes, inapplicable as it pertains to him and a motion to declare section 943.0435, Florida Statutes, unconstitutional as it pertains to him. On April 23, 2012, the court entered the order under review and concluded that the registry restrictions of 794.065, Florida Statutes (2004), were inapplicable to Whitt because section 794.065(2) specifically states that the statute applies to offenses that occur on or after October 1, 2004. Whitt’s offense occurred in March 1996. The court also ruled that section 943.0435, Florida Statutes (1997), requires sexual offenders to register with the Department of Law Enforcement. However, this statute did not take effect until October 1, 1997, approximately eight months after Whitt entered his plea. The court noted that Whitt was not designated a sexual offender at the time he entered his plea or at the time he was sentenced after admitting his violation of community control/probation. The court held that since Whitt could not be designated a sexual offender at the time of his offense or at the time of his plea, FDLE had no authority to require him to submit to the registration requirements imposed on sexual offenders under section 943.0435. The order under review did not actually remove the sexual offender designation, and it merely “clarified” the law and advised Whitt to present the order to FDLE so that his name could be removed from the Sexual Offender Registry. The court further advised Whitt that if FDLE refused to remove the restrictions and requirements imposed upon him, his proper recourse would be to bring suit against FLDE in Leon County, Florida, in an effort to obtain relief.

The circuit court admitted that the requirement that Whitt register as a sexual offender was unrelated to his sentence and was a collateral consequence of his judgment and sentence. In criminal cases, the circuit court primarily has postconviction jurisdiction to review motions filed pursuant to Florida Rules of Criminal Procedure 3.800(a) and 3.850. Because the sexual offender designation was not part of the plea or sentence, the circuit court did not have postconviction jurisdiction to consider this matter. Cf. State v. Partlow, 840 So.2d 1040, 1042-43 (Fla.2003) (sexual offender registration requirement is a collateral consequence of defendant’s plea and the registration requirement has no effect on the range of defendant’s punishment for the crime). Accordingly, the circuit court departed from the essential requirements of law when it decided whether FDLE properly classified Whitt as a sexual offender. Therefore, the petition for certio-rari is granted and the April 23, 2012, order is quashed.

PETITION GRANTED, ORDER QUASHED.

ORFINGER, C.J., TORPY and JACOBUS, JJ., concur.

      . This action was not filed pursuant to either section 943.04354, Florida Statutes (2012), or section 943.0435(11), Florida Statutes (2012).


author: JACOBUS, J. EVANDER, J.,

text:
    Orlando CHARRIEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-744.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    Cameron W. Eubanks of Brownstone, P. A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

Orlando Charriez appeals the judgment and sentence entered after a jury returned a verdict finding him guilty of one count of lewd or lascivious battery and four counts of sexual activity with a sixteen- or seventeen-year-old child. On appeal, Charriez contends the trial court: (1) erred in failing to grant his motion for mistrial based upon improper comments made by the State during closing argument; and (2) erred in failing to grant his motion for judgment of acquittal based upon the State’s failure to present evidence excluding every reasonable hypothesis of innocence. While we find no error in the trial court’s denial of Charriez’s motion for judgment of acquittal, we do find merit to Charriez’s claim that the cumulative effect of the improper comments made by the prosecutor during closing argument denied him a fair trial. Therefore, we reverse his judgment and sentence and remand the case for a new trial.

Charriez’s charges stem from accusations that he had a sexual relationship with a minor who resided at the same apartment complex as Charriez. When he was confronted with these accusations, Char-riez vehemently denied any sexual conduct with the victim and he never confessed or in any way indicated that he had a sexual relationship with her. At trial, there was no forensic evidence that would indicate any sexual conduct took place, and the State’s case was based upon the testimony of the victim.

During closing argument, the prosecutor made a number of improper comments. First, she made several references to facts not in evidence when she: (1) emphasized the importance of enforcing the laws Charriez was charged with violating in order to protect fifteen-, sixteen-, and seventeen-year-old children who do not have the ability to understand the consequences of their actions; (2) suggested that the reason the victim had changed her story was that she was nineteen years old at the time of trial and she might have had a different perspective on things than when she was fifteen; and (3) speculated that the reason no forensic evidence was found in the victim’s apartment was that she and Charriez probably had more sex at his apartment. Next, the prosecutor misstated the law as it relates to reasonable doubt when she suggested that if the jurors believed the victim, they would have to convict Charriez. See Clewis v. State, 605 So.2d 974, 975 (Fla. 3d DCA 1992) (“The test for reasonable doubt is not which side is more believable, but whether, taking all the evidence in the case into consideration, guilt as to every essential element of the charge has been proven beyond reasonable doubt.” (citing United States v. Stanfield, 521 F.2d 1122, 1125 (9th Cir.1975))). Finally, the prosecutor made an improper appeal to the jurors’ community conscience by suggesting that they had a communal duty to convict Char-riez in order to protect the community. Although Charriez’s defense counsel did not object to each of these comments and they may not individually rise to the level of fundamental error, their cumulative effect denied Charriez a fair trial. See Slagle v. State, 58 So.3d 427 (Fla. 1st DCA 2011) (cumulative effect of prosecutor’s errors denied Slagle a fair trial); Freeman v. State, 717 So.2d 105 (Fla. 5th DCA 1998) (finding that the cumulative effect of prosecutor’s errors, which included improper bolstering of police witnesses, impermissible burden shifting, and improper references to the facts not in evidence, required a new trial). Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED for New Trial.

PALMER, J., concurs.

EVANDER, J., dissents, with opinion.

EVANDER, J.,

dissenting.

Because I do not believe that the cumulative effect of any improper arguments by the prosecutor denied Charriez a fair trial, I respectfully dissent. Furthermore, I believe that some of the prosecutor’s comments (e.g., that fifteen-, sixteen-, and seventeen-year-old children sometimes lack the ability to understand the consequences of their actions and that the alleged victim might perceive things differently at age nineteen than she did at age fifteen) permissibly suggested inferences that could properly be drawn from the evidence.


text:
    Hassan SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2846.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    Hassan Scott, Live Oak, 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 judgment and sentence in case no. 05-2008-CF-010572-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, EVANDER, COHEN, JJ., concur.


text:
    Allen Dee M. ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2501.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2012.
    Allen Dee M. Robinson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered August 13, 2010, in Escambia County Circuit Court case number 2010-CF-000686-B, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the appeal authorized by this opinion.

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


author: PER CURIAME.

text:
    Melvin JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4113.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2012.
    Melvin Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for'Respondent.
   PER CURIAME.

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

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Antonio JOHNSON, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D12-3787.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2012.
    Antonio Johnson, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    William Henry WEST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2153.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2012.

      William Henry West, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Jerome ELLINGTON, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 1D11-4488.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2012.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant/Cross-Appellee.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant.
   PER CURIAM.

We affirm Jerome Ellington’s appeal of his judgment of conviction for felony battery. As to the issue raised on cross-appeal, however, we hold that the trial court erred when it failed to sentence appellant as a prison releasee reoffender. As a result, we vacate the sentence and remand for resentencing.

It is well-settled that, once the State proves by a preponderance of the evidence that a defendant qualifies as a prison releasee reoffender, the trial court must sentence the defendant in accordance with the provisions of section 775.082(9), Florida Statutes. See State v. Cotton, 769 So.2d 345 (Fla.2000); Johnson v. State, 766 So.2d 480, 481-82 (Fla. 5th DCA 2000). A trial court does not have discretion to depart from the sentence mandated by section 775.082(9), and the refusal to impose the mandatory minimum sentence is error as a matter of law. See State v. Garcia, 923 So.2d 1186 (Fla. 3d DCA 2006); State v. Smith, 832 So.2d 249 (Fla. 5th DCA 2002).

Appellant’s conviction for felony battery for intentionally touching or striking another against her will causing great bodily harm, permanent injury or permanent disfigurement qualified appellant for sentencing as a prison releasee reoffender. See Brooks v. State, 93 So.3d 402 (Fla. 2d DCA 2012). Indeed, the record reflects that the defense acknowledged and that the trial court found that appellant qualified for sentencing as a prison releasee reoffender. Yet, the trial court believed it had discretion as to whether appellant was so sentenced. As noted, the trial court did not possess such discretion. Garcia; Smith.

Accordingly, the sentence is vacated, and the cause is remanded for resentenc-ing consistent with this opinion.

VAN NORTWICK, CLARK, and RAY, JJ., concur.


text:
    Emanuel HAMPTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3232.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2012.
    Emanuel Hampton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Due to petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking the judgment and sentence, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.” ). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because petitioner’s continued and repeated attacks on his judgment and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court challenging the judgment and sentence imposed in Alachua County Circuit Court case number 96-1945-CFA. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R.App. P. 9.410.

WOLF, ROWE, and SWANSON, JJ., concur.


text:
    Percy E. BRISTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3351.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2012.
    Percy E. Brister, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

PADOVANO, RAY, and MAKAR, JJ., concur.


author: CIKLIN, J.

text:
    STATE of Florida, Appellant, v. S.A., a Child, Appellee.
    No. 4D11-4230.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.
    Anthony B. Britt of The Britt Law Firm, P.L., Miami, for appellee.
   CIKLIN, J.

The state appeals the trial court’s order dismissing the six counts brought against the minor child based upon its finding that the state violated the child’s speedy trial rights. Because the state failed to bring the child to trial within fifteen days of the date that the minor child filed a notice of expiration of speedy trial, we affirm the trial court’s order of dismissal.

On May 23, 2011, the state filed a petition for delinquency charging the child with six crimes. On September 27, 2011, the child filed a motion to dismiss and notice of expiration of speedy trial period. On October 4, 2011, the trial court held a hearing on the matter and a trial date was set for October 14, 2011. On the date of the trial, before it actually began, the child filed a motion for final discharge, arguing that the speedy trial rules required the state to have brought the child to trial by October 12, and failure to do so required immediate discharge.

The state argued that the trial was timely because the speedy trial rules actually contemplated two separate but interrelated time periods: five days to hold the initial hearing to determine if there is a reason to extend the trial deadline, and, if no reason is found, then ten days after the hearing to commence trial. Under the state’s suggested method of calculation, the trial was set for the last permissible date to comply with speedy trial.

The trial court found that the matter should have been brought to trial by October 12, which was fifteen days after the motion to dismiss and notice of expiration had been filed. The trial court concluded that it was constrained to dismiss all six charges against the child.

On appeal, the state argues that the trial court misapplied the applicable speedy trial rules by holding that a trial must be held within fifteen days from the filing of a motion for discharge.

The subject speedy trial rule provides for a “recapture window” which allows the state to bring the child to trial after the speedy trial deadline has expired. Florida Rule of Juvenile Procedure 8.090(m)(3) states:

No later than 5 days from the date of the filing of a motion for discharge, the coui't shall hold a hearing on the motion and, unless the court finds that one of the reasons set forth in subdivision (d) exists, shall order that the respondent be brought to trial within 10 days. If the respondent is not brought to trial within the 10-day period through no fault of the respondent, the respondent shall be forever discharged from the crime.

The state argues that the trial court should have first calculated the deadline for the initial hearing and then separately calculate an additional ten-day deadline from the hearing date. Because the initial hearing deadline is five days from the filing of a motion for discharge, the state asserts that Florida Rule of Juvenile Procedure 8.180 requires that weekends and holidays not count in the calculation because the period is fewer than seven days. The motion to dismiss and notice of expiration was filed on Tuesday, September 27, 2011. Wednesday, Thursday, and Friday were the first, second, and third days after the notice was filed. Saturday and Sunday were both weekend days and the following Monday, October 3, was a court holiday. Therefore, according to the state, the hearing date on Tuesday, October 4, was actually only the fourth day from the date of the motion for discharge. The state argues that the ten-day deadline to hold the trial should then be calculated from October 4, which would place the last day to conduct the trial on October 14, the date the state attempted to commence the trial.

This court has previously addressed this issue and concluded that “the five-ten ‘recapture window’ provided by Florida Rule of Juvenile Procedure 8.090(m)(3) should be similarly construed as its adult counterpart, i.e., as one fifteen day time period.” State v. J.G., 807 So.2d 748, 749 (Fla. 4th DCA 2002); see also State v. D.H., 87 So.3d 795 (Fla. 3d DCA 2012) (agreeing that the recapture window is one fifteen-day period). In other words, no matter how one calculates the five-day time period or when the court conducts the required hearing on the notice of expiration of speedy trial, the state is required to bring a defendant to trial within fifteen days of the defendant’s filing of the notice of expiration. Because the trial date in this case was beyond the maximum fifteen-day total, the child was entitled to a discharge.

We acknowledge that the Fifth District has held that the recapture window in the adult rules of criminal procedure is to be calculated the way the state advocates, i.e., as two separate but interrelated time periods. See State v. McFarland, 747 So.2d 481, 482 (Fla. 5th DCA 2000) (“This court recently construed this rule to mean that, when a defendant files a notice of expiration of speedy trial, a hearing must be held within five days of the date of the filing of the notice, and then the defendant must be brought to trial within ten days of the hearing held on the notice.”). Because this court construes both the adult and juvenile speedy trial recapture windows as one fifteen-day period, we certify conflict with McFarland.

Affirmed; conflict certified.

STEVENSON, J., and WALSH, LISA S., Associate Judge, concur.

      . "When the period of time prescribed or allowed shall be less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation.” Fla. R. Juv. P. 8.180(a).


author: WARNER, J.

text:
    ROGER E. FREILICH, D.M.D., P.A., a Florida limited liability company, and Roger E. Freilich, individually, Appellants, v. Randall M. SHOCHET, Esq., and The Dental Law Firm, P.A., a/k/a The Sho-chet Law Group, a Florida corporation, and Profiles Oral and Facial Surgery, PLLC, a Florida professional limited liability corporation, Appel-lees.
    No. 4D11-3795.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.

      Adam T. Rabin and Evan H. Frederick, West Palm Beach, for appellants.
    Randall M. Shochet of the Shochet Law Group, Greenacres, for appellees.
   WARNER, J.

The appellant filed a complaint to disqualify appellee’s attorney from representation of appellee in a pending arbitration proceeding. Appellee moved to compel arbitration of the claim. In this appeal from the trial court’s order compelling arbitration, the appellant claims that the appellee waived the right to arbitrate the dispute, that the agreement between the parties permitted appellant to seek an injunction rather than arbitrate, and that appellant was entitled to a hearing on the issue of the unconscionability of the arbitration agreement. Under the facts of this case, we conclude that the appellee did not waive its right to arbitrate the dispute, that the dispute was within the terms of the agreement, and that appellant’s claim of unconscionability of the arbitration clause was already raised in the pending arbitration. We thus affirm.

In August 2010, appellant, Dr. Roger Freilich, sold his oral and maxillofacial surgery practice to Profiles Oral and Facial Surgery, PLLC. Profiles was represented by attorney Randall Shochet and the Dental Law Firm, P.A. The Asset Purchase Agreement, section 8.3, provided:

Seller [Freilich] warrants that it has been advised to independently consult with its own attorney and accountant and rely solely upon their legal, financial, tax and/or accounting advice for all issues related to this transaction. Sho-chet Law Group represents Purchaser [Profiles] only, regardless of whether Seller has agreed to contribute to, or pay for some or all of Purchaser’s legal fees. .

The agreement further provided in section 8.1 that “all disputes, claims and controversies” between them would be resolved by arbitration. Any dispute not resolved by mediation was to be submitted to binding arbitration in the county where the Practice was located through the American Arbitration Association (“AAA”).

Disputes arose between the parties, and in March 2011, Profiles, represented by attorney Shochet, filed with the AAA for arbitration of a breach of contract claim against Freilich. Freilich filed an answer and counterclaim also alleging breach of contract. He then filed in circuit court a complaint for injunction against Shochet, arguing that Shochet had represented him in the contract formation. He contended that for Shochet to continue to represent Profiles in the arbitration proceedings would constitute a conflict of interest. Freilich sought disqualification of Shochet and a stay of the arbitration proceedings until the court could consider the disqualification.

Shochet filed a motion to abate or dismiss alleging Freilich had failed to comply with the agreement requiring that claims be resolved by arbitration. Shortly thereafter, Shochet served three discovery requests directed to the merits of the attorney disqualification issue. Then, in May 2011, Freilich filed an amended complaint in the circuit court still naming only attorney Shochet and the Dental Law Firm as the parties. Shochet again filed a motion to stay discovery and motion for protective order seeking the court to stop discovery until the court could rule on Shochet’s motion to dismiss the complaint. On June 21, 2011, Freilich filed a motion for leave to file a second amended complaint, seeking to add Profiles as a defendant and asking the trial court to disqualify attorney Shochet from representing Profiles in the arbitration action. On July 13, 2011, Frei-lich filed the Second Amended Complaint against Shochet and added Profiles as a defendant. That same day, Profiles served a request for production of documents to Freilich, asking for documents supporting Freilich’s contention that Sho-chet represented Freilich during the underlying sale of the practice. Thereafter, on July 18, 2011, the trial court entered an agreed order allowing Freilich to serve his Second Amended Complaint, thus making Profiles a defendant.

On July 21, 2011, Profiles filed a Motion to Compel Arbitration of the suit, and in August 2011, Profiles filed a Motion to Dismiss or Stay Second Amended Complaint Based Upon Ongoing Arbitration Between the Parties. Subsequently the court entered an order granting Profiles’ motion to compel arbitration and to stay the circuit court proceedings based upon the ongoing arbitration between the parties. Freilich appeals those two orders.

Only the order granting the motion to compel arbitration is an appealable non-final order. See Fla. R. App. P. 9.130(a)(3)(C)(iv). However, our ruling on that order essentially disposes of the entire matter.

We begin with the well-established principle that arbitration is generally favored by the courts where agreed to by the parties. Roe v. Amica Mut. Ins. Co., 533 So.2d 279, 281 (Fla.1988). Arbitration can be waived, however, and it is one of the preliminary issues for courts to consider when determining whether to grant a motion to compel arbitration. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). The general definition of waiver, namely “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right,” applies to the right to arbitrate. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). And, although actual participation in a lawsuit has generally been held to waive the right to arbitrate,

“[T]he question of whether there has been waiver in the arbitration agreement context should be analyzed in much the same way as in any other contractual context. The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.”

Id. (quoting with approval Nat’l Found, for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1987)).

Freilich contends that when Profiles sent its request for discovery on July 13th, it waived arbitration of the issue, based upon the line of cases which hold that engaging in discovery in litigation is inconsistent with adherence to the right to arbitrate and thus constitutes a waiver of the right. See, e.g., Lion Gables Realty Ltd. v. Randall Mech., Inc., 65 So.3d 1098, 1101 (Fla. 5th DCA 2011), and cases cited therein. In Lion, however, as in most other eases, discovery or other litigation was undertaken for weeks or months before the filing of the motion to compel arbitration. In this case, Profiles and Freilich were already involved in arbitration. Profiles had filed for arbitration, and Freilich filed a counterclaim in the arbitration proceedings. Profiles was only joined in the injunction suit Freilich filed against Shochet on July 18th, when the court signed the order authorizing the complaint. Before any response was due on Profiles’ single request for discovery, Profiles moved to compel arbitration within the pending arbitration and later to stay the injunction complaint, including discovery.

We think the trial court did not abuse its discretion in granting the motion to compel arbitration and in refusing to find that Profiles had waived its right to arbitrate when it had already asserted that right, and the parties were engaged in arbitration. The totality of the circumstances show that Profiles had not intentionally or voluntarily relinquished that right. The pendency of arbitration between the parties distinguishes this case from other cases finding that engaging in discovery constitutes a waiver of the right to arbitrate. As all doubts regarding the question of waiver of arbitration right should be resolved in favor of arbitration, Rath v. Network Mktg., L.C., 790 So.2d 461, 463 (Fla. 4th DCA 2001), the trial court did not abuse its discretion in ordering arbitration.

Freilich also contends that the agreement permitted the injunction based upon an express exception to arbitration in the agreement. Specifically, the agreement provided: “The requirement of arbitration shall not prohibit a party from seeking injunctive relief from a court of competent jurisdiction immediately following an alleged breach of this Agreement by the other party.” That provision, however, must be interpreted in light of the specific provision with respect to injunctions in the agreement. Section 5.10 contains restrictive covenants including a non-competition clause and clauses to protect confidential information, patient lists, and non-solicitation of staff members. It contains a provision authorizing the non-breaching party to obtain an injunction to enforce these restrictive covenants. Thus, the specific exception to the arbitration requirement referring to injunctions permits the non-breaching party to obtain an injunction to preserve the restrictive covenants.

Moreover, the parties included as a specific term of the contract that the Sho-chet law firm -represented only the purchaser. The arbitration agreement extended to any dispute regarding the terms of the agreement. The extent of Shochet’s representation being a term of the agreement, it was subject to arbitration. See Reuter Recycling of Fla., Inc. v. City of Hallandale, 993 So.2d 1178, 1179 (Fla. 4th DCA 2008) (where subject of disqualification of attorney comes within the broad terms of the agreement, it is within the jurisdiction of the arbitrators to decide).

Finally, Freilich argues that he should have been entitled to a hearing on the issue of the unconscionability of the arbitration agreement. He did not raise this in any pleading before the trial court. He requested it sua sponte at the hearing on the motion to compel. However, Frei-lich having filed a counterclaim in the arbitration proceeding itself, we agree with Profiles that Freilich has waived his right to challenge the arbitration agreement in circuit court because of his seeking his rights pursuant to the arbitration clause. In fact, he admits that he raised an uncon-scionability defense in the arbitration proceeding. Just as active participation in litigation can waive the right to arbitration, we think that active participation in arbitration proceedings waives the right to have the court decide the issue of uncon-scionability.

For the foregoing reasons, we affirm the order compelling arbitration.

DAMOORGIAN and CONNER, JJ., concur.


text:
    CITY OF BOCA RATON and Greater Boca Raton Beach and Park District, Appellants, v. Martin SIML, as chairman and on behalf of Petitioners’ Committee, Appellee.
    Nos. 4D11-1561, 4D11-1591.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.

      Jamie Alan Cole and Daniel L. Abbott of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Fort Lauderdale, and Diana Grub Frieser, Boca Raton, for appellant City of Boca Raton.
    Arthur C. Koski of Law Offices of Arthur C. Koski, P.A., Boca Raton, for appellant Greater Boca Raton Beach and Park District.
    Ralf Brookes, Cape Coral, for appellee.
   WARNER, J.

The City of Boca Raton (“the City”) appeals from a final order granting a writ of mandamus compelling the City to process a citizen initiative petition that would enact an ordinance to amend the city code. In addition, the Greater Boca Raton Beach and Park District (“the District”) appeals the trial court’s denial of its motion to intervene. We affirm the trial court’s order of mandamus, finding that the ordinance is not facially unconstitutional, and we also affirm the trial court’s denial of the motion to intervene which the District filed after the final judgment in this case. Because of its lateness, the trial court did not abuse its discretion.

Martin Siml, a representative of a committee of Boca Raton voters, submitted a citizens’ initiative petition ballot for a referendum to amend the City’s code of ordinances. The proposed amendment would add the following to the City’s code:

Section 28-1307. Public Coastal Lands. All public-owned lands owned by the City and the Greater Boca Raton Beach and Park District located between the Intracoastal Waterway and Atlantic Ocean shall be limited to public uses and public services provided for the general public, and development for private uses (including members-only beach clubs) on these public-owned lands shall be prohibited.

The City Attorney issued an opinion that the amendment should not be processed because it would abrogate the powers of the District. The citizens’ committee which had sought to place the referendum on the ballot filed a petition for writ of mandamus to force the City to process the amendment. After hearing, the court entered a final order granting the writ of mandamus compelling the City to further process the proposed amendment. The court ruled that the proposed ballot language was neither facially unconstitutional in its entirety, nor contrary to or expressly preempted by state law. The court explained that pursuant to chapter 2008-313, section 4, Laws of Florida, the special act that created the District, the District is to provide beaches and recreational facilities for taxpayers of the District, including beaches and recreational facilities with the City. The court ruled that the proposed ordinance is not preempted by, and does not conflict with, state law, including chapter 2003-313.

Post-judgment, the District moved to intervene, contending that the judgment affected its interests and would disenfranchise those voters in the district who were not residents of the City. The City then moved for rehearing, adopting the District’s arguments. The trial court denied the motion to intervene and the motion for rehearing. Both the City and the District appeal.

Courts have the authority to determine the facial constitutionality of a proposed ordinance to be submitted to the electorate for passage and whether it is within the powers of the enacting body. Gaines v. City of Orlando, 450 So.2d 1174, 1178 (Fla. 5th DCA 1984) (citations omitted). Prior to election, initiatives on proposed ordinances should not be removed from the ballot unless they are unconstitutional in their entirety, and challenges based upon non-constitutional grounds should not be decided prior to election. See Wright v. Frankel, 965 So.2d 365, 372-73 (Fla. 4th DCA 2007).

The City does not dispute that the ordinance is constitutional as to properties it owns between the Intracoastal Waterway and the Atlantic Ocean. City residents have the opportunity to vote on the ordinance as it affects lands owned by the City. The issue raised in this appeal is the effect of the proposed ordinance on lands owned by the District and whether it unconstitutionally impacts those lands.

The Legislature has imbued municipalities with broad powers to govern and has provided that they “may exercise any power for municipal purposes, except when expressly prohibited by law.” § 166.021(1), Fla. Stat. With respect to special laws, “[i]t is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or special law, or county charter....” See § 166.021(4), Fla. Stat. (emphasis added).

The special law which created the District stated its purposes: (1) to reimburse the city of Boca Raton for the acquisition, improvement, and operation of two substantial parcels of beach and park property, described in the law; (2) to reimburse the city for future acquisitions and maintenance of beach and park property; and (3) to acquire, improve, and operate beach and park properties when acquired either through eminent domain, subject to the concurrence of the City, or through approval by referendum of the electorate of the District. To that end, the Board may determine that the purposes of the act are being undertaken by some other public or private entity, and if so, the Board may reduce its expenditures where the other body has obligated itself to spend for the purposes of the act.

The City maintains that the proposed ordinance would prevent the District from exercising its powers, because it contends that the ordinance may prohibit all “private uses” on District-owned land. First, nothing in the special act creating the District expressly permits the private use of District property. The District’s purpose is to acquire and maintain parks and beaches. Parks are commonly understood to be public places. See Ocean Beach Realty Co. v. City of Miami Beach, 106 Fla. 392, 143 So. 301 302 (1932); see also Hanna v. Sunrise Recreation, Inc., 94 So.2d 597, 600-01 (Fla.1957). Parks may include beaches. Ide v. City of St. Cloud, 150 Fla. 806, 8 So.2d 924, 925 (1942). Thus, the City, exercising its governmental powers to determine the use of property within its boundaries, would not transgress the statutory limitation on its powers in enacting the proposed ordinance where the special act contains no express prohibition. Second, the proposed ordinance mandates public uses and services. We do not interpret .this as requiring that any services can be provided only by the use of government employees or purchases. Instead, any use of property or services that are provided must be provided to the public at large and not exclusively to a private group. For example, if the District were to provide a sailing center, it would have to be open to the public for use and not be restricted to private use. The ordinance does not address what entity can provide these services so long as they are available to the public. The ordinance is not facially unconstitutional or invalid. At most, any claim that it prevents private vendors from operating would be an as-applied challenge to the ordinance, not a facial challenge, and not a ground for rejecting the initiative pre-election.

An example of an initiative which did take away powers of commission established by special act is found in Gaines, 450 So.2d 1174. There, a proposed ordinance initiative by electors of the City of Orlando would have prohibited the construction of a coal fired electrical plant by the Orlando Utilities Commission (“OUC”), a legislatively-created commission authorized to construct plants to furnish electrical power, among other things. The City refused to put the proposal up for a vote. Taxpayers brought a petition for writ of mandamus to compel the City to take action on their petition initiative. The trial court agreed with the City and held that the amendments were beyond the scope of the referendum power and that they could not be voted on. On appeal, the Fifth District agreed in part. The court held that the portion of the ordinance, which attempted to take away the power of the OUC to build certain types of power plants, was contrary to the special act granting the OUC’s exclusive authority to manage, operate, and build electric utility plants, and thus improperly decreased the authority granted by the Legislature.

Here, unlike in Gaines, the proposed initiative does not take away any authority specifically granted to the District. The District is charged with acquiring, maintaining, and operating parks and beaches. As noted previously, parks and beaches are public uses. Thus, the ordinance which mandates their public, rather than private use, complements the District’s purpose. It does not restrict it.

The City also argues that the vote on the proposed ordinance by the City electors alone would disenfranchise those voters in the District who do not reside in the city. The City did not make this argument until after the court entered its final judgment on the petition and after the District filed a motion to intervene, in which the District raised this argument. The trial court denied rehearing but it is unclear whether the court considered the argument on the merits. We question whether the issue has been properly preserved on appeal. Nevertheless, because we have found the proposed ordinance is neither facially unconstitutional nor invalid, we reject the City’s contention that the district voters would be disenfranchised by the City’s adoption of it. The ordinance on its face does not unconstitutionally limit the powers of the District. The City has the power to regulate the uses of public coastal beaches located within its municipal boundaries, even if those lands are owned by another governmental entity such as the District. See generally City of Temple Terrace v. Hillsborough Ass’n for Retarded Citizens, 322 So.2d 571 (Fla. 2d DCA 1975). The mere speculation that the ordinance may have some future impact on the District is insufficient to prevent the submission of the ordinance to the voters.

Finally, the District argues that the trial court abused its discretion in denying its motion to intervene, filed days after the final judgment was entered. We have long abided by the general rule that post-judgment intervention is not allowed, and we have narrowly confined the exceptions to that rule. See, e.g., De Anza Corp. v. Hollywood Estates Homeowners Ass’n, Inc., 443 So.2d 462 (Fla. 4th DCA 1984), and cases cited therein. This case does not present a reason to deviate from that general rule. Because the voters of the district were not parties to this proceeding, it does not preclude their pursuit of other means of redress if the ordinance passes in an election and if they should find that the proposed initiative negatively affects their interests.

For the foregoing reasons, we affirm the judgment of the trial court.

STEVENSON and GROSS, JJ., concur.


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    N.L., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D12-1546, 4D12-1727.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.
    Frank A. Kreidler, Lake Worth, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   PER CURIAM.

The father appeals the denial of his motion to vacate the final judgment terminating his parental rights to his child. The final judgment was entered based upon the father’s constructive consent due to his failure to appear at the adjudicatory hearing on the petition to terminate rights. Although notified of the necessity of his personal appearance at the hearing on the motion to vacate, the father failed to appear again. The trial court denied his request to testify telephonically when the Department of Children and Families objected. In so ruling, the trial court was correct, as Florida Rule of Judicial Administration 2.530(d) does not allow testimony by telephone unless both parties consent. See M.S. v. Dep’t of Children & Families, 6 So.3d 102, 104-05 (Fla. 4th DCA 2009). The father’s constitutional challenge to the rule, which is an as-applied challenge, was not raised in the trial court. Therefore, it is not preserved for appeal. Fla. Dep’t of Fin. Servs, v. Freeman, 921 So.2d 598, 602 (Fla.2006). The father’s claim that the trial court relied on the Department’s proffer of testimony, instead of sworn testimony, in denying his motion is not supported by the record. The trial court denied the motion because the father did not appear at the hearing, as ordered by the trial court at calendar call, not based upon the proffer by the Department. Without testimony from the father regarding his claims in the motion to vacate, there was no evidence to support his request.

Affirmed.

WARNER, HAZOURI and CIKLIN, JJ., concur.

      . The father’s brief makes repeated claims that the trial court used Florida Rule of Judicial Administration 2.530(d) to prevent the father from attending and defending at the trial on termination of parental rights, which is incorrect. The father did not appear either at the adjudicatory hearing or at the manifest best interest hearing. He made no claim or request to appear at either of those hearings by telephone. His only request to testify by telephone was made when he did not personally appear at the hearing on his motion to vacate.


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    Malando WRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 4D12-1696.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.
    Malando Wright, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We grant this petition alleging ineffective assistance of appellate counsel and remand for a new sentencing hearing at which the court shall consider youthful offender sanctions. Petitioner was convicted after jury trial of burglary with a firearm and aggravated battery with a firearm. The jury found that he discharged a firearm and inflicted great bodily harm. Petitioner admitted his involvement in the offense and that he was present, but maintained that he was not the shooter. Petitioner was twenty years of age at the time of the offense and had no prior criminal record. At the time of sentencing, petitioner was twenty-one years of age.

In 2008, the legislature amended the youthful offender statute. Ch.2008-250, § 7, Laws of Fla. Previously, the statute permitted a court to impose a youthful offender sentence if the crime was “committed before the defendant’s 21st birthday.” § 958.04(l)(b), Fla. Stat. (2007) (emphasis supplied). After the change, the statute permits a court to impose a youthful offender sentence “if the offender is younger than 21 years of age at the time sentence is imposed.” § 958.04(l)(b), Fla. Stat. (2008) (emphasis supplied).

At sentencing, the court indicated that it lacked discretion to sentence petitioner as a youthful offender because he was twenty-one years of age at the time of the sentencing hearing. Defense counsel argued that the court had discretion because the offense was committed when petitioner was under twenty-one years of age. The prosecutor expressed that he did not feel good about the twenty-five year mandatory sentence but that the change in law deprived the court of discretion. The court imposed the twenty-five year mandatory for both counts to run concurrently.

Petitioner was entitled to have the law in effect at the time the offense was committed applied at sentencing. The court erred in determining that it lacked discretion to impose a youthful offender sentence. Urban v. State, 46 So.3d 1113, 1114 (Fla. 5th DCA 2010). Appellate counsel was ineffective in failing to raise this preserved error.

The petition is granted, and the sentence is vacated. The trial court shall hold a new sentencing hearing and consider imposing youthful offender sanctions.

Petition granted. Remanded for resen-tencing.

WARNER, POLEN and TAYLOR, JJ, concur.