text:
    Ronald Richard CARDENAS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6241.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.

      Glenn M. Swaitek, Shalimar, for Appellant.
    Bill McCollum, Attorney General and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s order denying his rule 3.850 motion after an evidentiary hearing. We affirm.

In October 1995, while fishing on his boat with his son Lucas Cardenas, his father Ronald Cardenas, Sr., and family friend, Frank Parrish, Appellant was intoxicated beyond the legal limit while operating the vessel. An accident occurred wherein Appellant’s vessel collided with a barge. As a result, Parrish was killed, Appellant’s father was initially seriously injured but later died, and Appellant’s son was seriously injured but subsequently recovered. Appellant was charged with two counts of vessel homicide, two counts of BUI (boating under the influence) manslaughter, and one count of operating a vessel under the influence involving serious bodily injury.

A jury found Appellant guilty as charged except for finding Appellant guilty of culpable negligence, a lesser included offense of one of the vessel homicide counts. The trial court sentenced Appellant to a total of 15 years in prison, followed by 10 years of probation. Appellant appealed his judgment and sentence, which was affirmed in part by this court. Cardenas v. State, 816 So.2d 724 (Fla. 1st DCA 2002) (hereinafter “Cardenas I”), approved by 867 So.2d 384 (Fla.2004).

Appellant then sought postconviction relief through a timely rule 3.850 motion. The trial court summarily denied the motion. On appeal, we reversed and remanded for an evidentiary hearing on seven of the claims in the motion, including the claim that Appellant’s trial counsel was ineffective for failing to seek the admission of certain exculpatory statements allegedly made by Appellant’s father. Cardenas v. State, 993 So.2d 546 (Fla. 1st DCA 2008) (hereinafter “Cardenas II ”). We explained that “[i]f the statements alleged were made under the circumstances described by the appellant, they would have been admissible under the [dying declaration] hearsay exception, and the failure to introduce them could have materially prejudiced the appellant’s defense.” Id. at 549.

Judge Hawkes dissented. In his view, even if the statements were exculpatory dying declarations, the record refutes Appellant’s claim that his trial counsel was ineffective for failing to introduce the statements because “the record shows Appellant’s father made declarations opposite what Appellant claims on appeal.” Id. at 550 (Hawkes, J., dissenting).

On remand, the trial court conducted an evidentiary hearing during which Appellant, his trial counsel, and several other witnesses testified. Following the eviden-tiary hearing, the trial court entered a comprehensive eighteen-page order denying relief on all of the remanded claims. Appellant now seeks review of that order, but he raises only one issue on appeal: whether the trial court erred in finding that his trial counsel was not ineffective for failing to seek the admission of “impending death” statements made by his father.

Appellate review of a trial court’s order on a postconviction claim of ineffective assistance of counsel following an evi-dentiary hearing presents a mixed question of law and fact. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This court must defer to the trial court’s factual findings so long as they are supported by competent substantial evidence. Id. at 1031. However, the issue of whether counsel was ineffective under those facts is ultimately a question of law and is thus reviewed de novo. Id. at 1032.

In order to establish a claim for ineffective assistance of counsel, a defendant must demonstrate that: (1) counsel’s performance was deficient — this requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment; and (2) there is a reasonable probability that the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Spencer v. State, 842 So.2d 52, 61 (Fla.2003). A reasonable probability is a probability sufficient to undermine' confidence in the outcome. Spencer, 842 So.2d at 61.

Appellant contends that the trial court erred in finding that his trial counsel was not ineffective because the testimony presented at the evidentiary hearing established that his father made statements following the accident naming Frank Parrish as the driver of the boat that would have been admissible as “dying declarations.” The state responds by arguing that the evidence presented at the hearing supports the trial court’s findings that the statements would not have been admissible as “dying declarations” and, therefore, the trial court correctly found that Appellant’s trial counsel was not ineffective for not seeking to introduce the statements at trial.

Section 90.804(2)(b), Florida ’ Statutes, provides an exception to the hearsay rule for “a statement made by a declarant while reasonably believing that his or her death was imminent, concerning physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.” This is commonly referred to as the “dying declaration” exception. See Charles W. Ehrhardt, Florida Evidence, § 804.3 (2010 ed.). Before a dying declaration may be admitted into evidence, a proper foundation must be presented to establish that the declarant possessed a subjective belief in the certainty of his death at the time the statement was made. Hayward v. State, 24 So.3d 17, 30-31 (Fla.2009) (explaining that “the absence of all hope of recovery, and appreciation by the declarant of his speedy and inevitable death, are a preliminary foundation that must always be laid to make such declarations admissible”) (internal quotations and citations omitted).

Here, the trial court found that the testimony presented at the evidentiary hearing failed to establish the necessary predicate for admission of any of the statements allegedly made by Appellant’s father under the dying declaration hearsay exception. None of the witnesses who testified at the evidentiary hearing specifically testified as to statements made by Appellant’s father at a time when he believed his death was imminent. For example, none of the allegedly exculpatory statements were made on the night of the accident or immediately before Appellant’s father died; rather, the statements were made at different points during Appellant’s father’s 14-week hospital stay during which time he was “gravely ill” but often in a regular hospital room and capable of carrying on at least minimal conversations. Additionally, the trial court explained that its assessment of the testi-c'mony at the evidentiary hearing was consistent with trial counsel’s recollection that there were “some ‘hazy’ statements” that could not be corroborated. It is the function of the trial court to make these types of credibility determinations. See Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (explaining that the appellate court reviewing the denial of a rule 3.850 motion after an evidentiary hearing will not substitute its judgment for that of the trial court on the credibility of witnesses or the weight to be given to evidence).

The trial court’s findings are supported by competent substantial evidence, and based upon these findings, the trial court correctly concluded that trial counsel was not ineffective for not seeking to introduce the alleged exculpatory statements made by Appellant’s father because the statements would not have been admissible under the dying declaration exception to the hearsay rule. See Owen v. State, 986 So.2d 534, 546 (Fla.2008) (explaining that trial counsel cannot be deemed ineffective for failing to introduce inadmissible evidence). Accordingly, we affirm the trial court’s denial of this claim and, because no other issue was appealed, we affirm the denial of Appellant’s rule 3.850 motion in its entirety.

AFFIRMED.

BENTON, C.J., WETHERELL and ROWE, JJ., concur.

      . The court struck those portions of the written judgment which were inconsistent with the trial court's oral pronouncements at sentencing so that the written judgment conformed to the trial court's pronouncement that Appellant was only adjudicated guilty of BUI manslaughter and not culpable negligence because these dual convictions are precluded by State v. Chapman, 625 So.2d 838 (Fla.1993). See Cardenas I, 816 So.2d at 727-28. In all other respects, the judgment and sentence were affirmed. Id.

      . The other claims remanded for an eviden-tiary hearing were whether trial counsel was ineffective for failing to call Appellant’s son as a witness at trial; for failing to bring forth additional information demonstrating bias on the part of state witness Buddy Gomez; for failing to investigate sufficiently Appellant’s allegation .that prior to his trial he took and passed a polygraph examination; for failing to object to certain comments made by the prosecutor during closing arguments; for failing to request a jury instruction addressing the Appellant's use of psychotropic medications during trial; and for failing to properly address the inappropriate courtroom behavior manifested by the widow of one of the victims. Cardenas II, 993 So.2d at 548-50. We affirmed the trial court’s summary denial of all other claims raised in the motion. Id. at 550.

      .The record reflects that Appellant’s father made a statement to law enforcement shortly after the accident identifying Appellant as the driver of the boat. The trial court granted Appellant's motion in limine to exclude this statement from trial, but as observed by the trial court in the order on appeal in this case, it is likely that “had defense counsel áttempt-ed to admit a statement made by Cardenas Sr. which indicated that Frank Parrish was driving the boat, such testimony would likely have also acted to allow the State to introduce evidence of Cardenas Sr.'s conflicting statement that Defendant was driving the boat.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rollie O. LOVETTE, Appellant, v. FLORIDA DEPARTMENT OF HEALTH, Appellee.
    No. 1D10-1870.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Rollie O. Lovette, pro se, Appellant.
    Donna Erlich, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Rollie O. Lovette is an inmate in Martin Correctional Institution. In November 2008, he filed a petition for writ of mandamus seeking to compel the Department of Health (“Department”) to investigate a complaint he had filed against a physician in 2007. The Department had deemed the complaint legally insufficient for failure to satisfy the requirements of inmate complaints against physicians employed by the Department of Corrections (“DOC”) or providing services in its facilities. Before the petition was heard on the merits, the Department re-reviewed Lovette’s complaint, realized the subject of the complaint neither works for DOC nor provides services in DOC prisons, determined the complaint is legally sufficient, and began an investigation into the allegations. Lovette moved for costs under section 57.041, Florida Statutes. Because the trial court erroneously denied Lovette’s motion finding that “court costs are not proper in actions such as this,” we reverse the denial and remand for further proceedings.

REVERSED and REMANDED.

WEBSTER, LEWIS and MARSTILLER, JJ., concur.

      . Lovette filed the petition in the Fifth District Court of Appeal, which subsequently transferred the case to the Second Judicial Circuit Court.

      . The Department stated in its response to the show cause order issued by the trial court that Lovette’s complaint was filed in 1997. But Lovette’s mandamus petition indicates the complaint was filed in 2007.

      . A lien was placed on Lovette's prison trust account for court costs and fees since the mandamus action is not a collateral criminal proceeding. See § 57.085, Fla. Stat. (2007); Schmidt v. Crusoe, 878 So.2d 361, 363-64 (Fla.2003).


text:
    Taran LENHARDT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4600.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Taran Lenhardt, pro se, Petitioner.
    Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the October 19, 2009, judgment and sentence in Duval County Circuit Court case number 16-2009-CF-005204-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

BENTON, C.J., KAHN, and WETHERELL, JJ., concur.


text:
    Demetrius Dwayne BROOKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1284.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Demetrius Dwayne Brookins, pro se, Petitioner.
    Bill McCollum, Attorney General, and Eric Neiberger, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of mandamus seeks to compel a ruling on a petition for writ of habeas corpus filed in the circuit court. However, the clerk of the circuit court has no record of ever receiving the petition for writ of habeas corpus. Accordingly, because there is no pleading pending below, the petition for writ of mandamus is denied. See Casen v. McDonough, 962 So.2d 977 (Fla. 1st DCA 2007).

Petitioner has tendered to this court a copy of the petition which he asserts was filed below. His petition includes a date stamp on its face showing that it was given to prison officials for mailing. Accordingly, within 30 days, petitioner shall file with the clerk of the circuit court a copy of the petition which includes the date stamp on the face of the pleading. See Rife v. State, 958 So.2d 1053 (Fla. 1st DCA 2007); Hartley v. Fla. Dep’t of Corrections, 954 So.2d 684 (Fla. 1st DCA 2007).

PETITION DENIED.

BENTON, C.J., KAHN, and WETHERELL, JJ., concur.


text:
    Brian LeBOEUF, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-5509.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Brian LeBoeuf, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Brian LeBoeuf seeks certiorari review of an order denying his petition for writ of mandamus. He argued in that petition, albeit not particularly artfully, that the Department of Corrections acted without statutory authority when it forfeited certain gain-time-and provisional credits following the revocation of his conditional medical release. The circuit court denied relief, finding that the challenged action was authorized by sections 944.28(1), 947.141, and 947.149, Florida Statutes. However, the circuit court’s ruling does not account for the fact that the 2,030-day forfeiture complained of by petitioner consisted of credits applied to a sentence imposed for an offense that predated the adoption of these forfeiture provisions, nor does it explain how these later enacted forfeiture statutes can be lawfully applied to petitioner. See Larimore v. Fla. Dep’t of Corr., 910 So.2d 847 (Fla. 1st DCA 2004), rev. denied, 905 So.2d 125 (Fla.2005).

Because the circuit court’s order does not address this issue, we conclude that it is appropriate to remand the matter for further proceedings. See Lamb v. McNeil, 21 So.3d 44 (Fla. 1st DCA 2009). Accordingly, the petition for writ of certio-rari is GRANTED, the order denying Le-Boeufs petition for writ of mandamus is QUASHED, and the matter is REMANDED to the circuit court for further proceedings consistent herewith.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


author: LEWIS, J.

text:
    Samuel Dennis REDD, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3431.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.

      Jack R. Maro, Ocala, for Appellant.
    Bill McCollum, Attorney General, Edward C. Hill, Jr., Assistant Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appel-lee.
   LEWIS, J.

Samuel Dennis Redd, Appellant, seeks review of his judgment and sentence for trafficking in cocaine. At trial, the State elicited double hearsay and relied on it heavily to prove the truth of the matter asserted therein, which was that Appellant was in possession of some of the cocaine at issue. We conclude that this double hearsay was not admissible under any exception to the hearsay rule and, contrary to the State’s arguments, Appellant did not open the door to its admission. Because the error in the admission of this inadmissible evidence cannot be characterized as harmless, we reverse Appellant’s conviction and remand for a new trial. This disposition renders it unnecessary to discuss the remaining issues on appeal.

When the evidence presented in the State’s case-in-chief is viewed in the light most favorable to the State, it showed the following. On January 14, 2008, Appellant and Randall “Burt” Thomas began moving into a home that was owned by a trust for the benefit of Bobbi Morris’ child. Morris was moving in at the same time, and at least one other person, Janay Economou, helped the others move their belongings into the home. Benjamin Ratliff also went to the house on January 14, 2008. Appellant, Thomas, Morris, Economou, and Ratliff all spent the night there.

On January 15, 2008, law enforcement officers arrived at the house to execute an arrest warrant against Ratliff. When they arrived, Economou and Thomas were in one bedroom, Ratliff was in another, and Appellant and Morris were emerging from a third. On the dresser in the room Eco-nomou and Thomas shared, officers discovered, in plain view, what appeared to be marijuana, drug paraphernalia, and small blue baggies containing cocaine residue. As a result of this discovery, they obtained a search warrant.

While officers were on the premises, they discovered $700 in cash lying next to Appellant’s shoes in the bedroom from which he had emerged. The cash was scattered about on the floor in a manner that Sergeant Ryan Bunton testified was consistent with the sale of narcotics. However, there were no drugs found in this room.

Appellant was also associated with another room in the house, which appeared to be an “add-on.” In a dresser in the add-on room, officers found five small blue baggies, two of which contained cocaine residue and one of which contained Appellant’s fingerprint. There is no indication in the record that the baggie with Appellant’s fingerprint was one of the baggies with cocaine residue. However, the dresser contained other items that appeared to belong to Appellant, including his high school diploma and a legal document with Appellant’s name on it. In addition, there were plaques from a fishing tournament, which were consistent with plaques found elsewhere in the house bearing Appellant’s name.

Attached to the add-on room was a laundry room. In the laundry room, officers discovered a bag containing 95.8 grams of a cocaine mixture. The officer who discovered this bag testified that it was sitting in plain view inside an open cabinet. However, he further explained that it was necessary to enter the room and walk in front of the cabinet or near the front to see the cocaine, which appeared to have been “just tossed in there.” A box of trophies and plaques Appellant had won in fishing tournaments was also found in the laundry room. One of the plaques had the names “Ed Griffin and Dennis Redd” on it. Additionally, some of Ratliffs clothing was in the laundry room.

Officers also discovered a bag containing eighty-four grams of a cocaine mixture in the dining room. This bag was hidden in a basket underneath an artificial plant, which was on top of a china cabinet. There was also a smaller baggie containing suspected cocaine in a drawer of the china cabinet.

Outside the home, officers found and searched a Nissan Altima. Inside the Nissan were Appellant’s driver’s license, several small plastic baggies, a larger bag with Appellant’s fingerprint on it, and small handheld digital scales of the type commonly used in the packaging of illegal drugs. The baggies were located in the center console not far from Appellant’s license. Two scales were underneath the baggies, and one scale was in a compartment in the driver’s door.

Part of the defense’s theory was that there was no reason to believe the cocaine found in the house belonged to Appellant as opposed to any of the other occupants of the house. To prove this point, defense counsel cross-examined Sergeant Jason Byrd about why Thomas was not charged with possession of cocaine even though suspected cocaine was found in plain view in his bedroom. In particular, defense counsel asked Sergeant Byrd, “At that point [when Thomas was charged], what did you know about Dennis Redd that you didn’t know about ... Thomas in regard to possession of cocaine?” Sergeant Byrd answered as follows:

Possession of the cannabis on Mr. Thomas was a result. Post-Miranda Officer Shallar spoke with [Thomas] and he was very up front, very adamant that all the marijuana we originally found in the first room, he took ownership of what was his and that’s the reason. Based on his confession, he admitted [that] all the marijuana was his. The cocaine was just a residual amount on the dresser.

Defense counsel then asked, “[W]hat about the cocaine in other parts of the house?” Sergeant Byrd responded as follows:

[A]ll the identifiable material that was found in and around those products of cocaine either linked back to [Appellant], Bobbi Morris or possibly Ben Ratliff. So to charge [Thomas] with something on the other end of the house that I had no evidence of — any kind of evidence, a name, a document, a fishing award, I think would have been a push to charge him with it in my opinion.

On re-direct, in response to this line of questioning, the prosecutor had Sergeant Byrd testify regarding the nature of Thomas’ cooperation. Over defense counsel’s hearsay objection, Sergeant Byrd testified that he had learned from Officer Larry Shallar that Thomas reported the location of the cocaine in the artificial plant. Also over defense counsel’s hearsay objection, Sergeant Byrd testified that Thomas told Shallar that the cocaine belonged to Appellant and Ratliff. The trial court allowed the testimony based on the State’s argument that defense counsel had “opened the door” to it. Sergeant Byrd explained that officers would not have known about this cocaine without Thomas’ cooperation and that the information provided by Officer Shallar had affected the charging decision.

At the end of the State’s case-in-chief, defense counsel moved for a judgment of acquittal or, in the alternative, reduction of the charge from trafficking in cocaine to simple possession. Both motions were denied.

In closing arguments, the prosecutor relied heavily on the testimony that Thomas had reported Appellant and Ratliff as the owners of the cocaine, and defense counsel’s objections to such reliance were overruled. Ultimately, the jury found Appellant guilty of trafficking in cocaine, and judgment and sentence were entered accordingly.

On appeal, Appellant argues that the trial court erred in denying his hearsay objections. The State does not dispute that the challenged testimony constituted double hearsay, which would ordinarily be inadmissible. The State maintains, however, that the testimony became admissible based on the questions defense counsel posed during the cross-examination of Sergeant Byrd. Although a trial court has wide discretion over the admissibility of evidence, this discretion is “obviously limited by the rales of evidence.” Alcantar v. State, 987 So.2d 822, 825 (Fla. 2d DCA 2008). Our inquiry is whether, under the circumstances of this case, there was any basis for allowing the State to elicit evidence that is generally precluded under the rules of evidence.

The concept of “opening the door” allows for the admission of otherwise inadmissible evidence when it is necessary to qualify, explain, or limit evidence previously admitted. Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000). This evidentiary principle is “based on considerations of fairness and the truth-seeking function of a trial.” Id. (citation omitted). It applies “when one party’s evidence presents an ‘incomplete picture’ and fairness demands the opposing party be allowed to ‘follow up in order to clarify ... and make it complete.’” Brunson v. State, 31 So.3d 926, 928 (Fla. 1st DCA 2010) (citations omitted).

Because fairness is the key concern of this evidentiary principle, the mere fact that testimony may be characterized as incomplete or misleading does not automatically trigger the admission of otherwise inadmissible evidence under the “opening the door” rule. See Hill v. State, 933 So.2d 667, 670 (Fla. 1st DCA 2006) (noting that “the state is not entitled to present evidence that a defendant has committed an unrelated crime merely because the defendant’s testimony can be characterized as false or misleading”). Rather, the State must demonstrate a legitimate need to resort to such evidence to correct a false impression. See id.; Alcantar, 987 So.2d at 826 (holding that inadmissible evidence should not have been allowed where “there was no misleading testimony to correct”) (emphasis added). Otherwise, the “opening the door” rule threatens to become a pretext for the illegitimate use of inadmissible evidence, and the fairness-promoting purpose of the rule is lost. See Hill, 933 So.2d at 670 (“A suggestion or insinuation made in the defense case cannot be used as a pretext to inform the jury that he has been convicted of a crime before.”).

In deciding whether fairness requires the admission of evidence under the “opening the door” principle, a court should consider the “general unreliability of inadmissible evidence.” Ramirez v. State, 739 So.2d 568, 580 (Fla.1999). The more unreliable the evidence is, the less likely it is that fairness requires its admission. See id. Hearsay is sometimes admissible under the “opening the door” principle. See Adamson v. State, 569 So.2d 495, 495 (Fla. 3d DCA 1990); see also, e.g., Dennis v. State, 817 So.2d 741, 752-53 (Fla.2002) (agreeing with the State that the door was opened to a line of questioning that included implied hearsay and to which a hearsay objection had been lodged). Nevertheless, the inherent unreliability of hearsay is a factor to be considered when it is sought to be admitted under this principle. See Ramirez, 739 So.2d at 580. In such a situation, “the appropriate inquiry ... is whether based on considerations of fairness, the door was opened wide enough by defense counsel’s questions to permit otherwise inadmissible and unreliable statements to be admitted into evidence.” Id. This inquiry should include consideration of the fact that hearsay from a codefendant (or, as in this case, a potential codefendant) is “especially suspect” because a codefendant “has a strong motivation to implicate another.” Id. For this reason, an out-of-court statement made by a codefendant is “even less credible than ordinary hearsay.” Id.

Here, the State argued that the double hearsay elicited from Sergeant Byrd on re-direct was proper because his answer to the question concerning why Thomas was not charged was incomplete. While it may be true that there were additional reasons that Thomas was- not charged and that Sergeant Byrd did not reveal the full extent of Thomas’ cooperation on cross-examination, his answer was not misleading or so incomplete as to be unfair. Therefore, the door was not opened to the admission of hearsay to explain, qualify, or limit his answers.

In fact, on his own, Sergeant Byrd commendably limited his answers to stay within appropriate bounds. The additional information that Thomas pointed the finger at Appellant as the owner of the cocaine did not serve any proper purpose. Rather than leveling the playing field of any unfairness created by the defense’s cross-examination of Sergeant Byrd, this testimony shifted the scales unfairly in the State’s favor by encouraging the jury to rely on inadmissible evidence that the judicial system has deemed inherently unreliable. Because defense counsel did not open the door to this testimony, the trial court should have sustained his hearsay objections.

The State does not contend that the erroneous admission of double hearsay was harmless error in this case. The failure to do so was proper, as we cannot conclude beyond a reasonable doubt that the erroneous admission of Thomas’ statements did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Thomas’ double hearsay statement that Appellant owned the cocaine was the main evidence that connected Appellant to the cocaine in the dining room. Other than the uncorroborated hearsay from Thomas, the State’s case was entirely circumstantial. Thus, without Thomas’ erroneously admitted statements, Appellant’s motion for judgment of acquittal would have been subject to the “special standard of review” governing circumstantial cases. See State v. Law, 559 So.2d 187, 188 (Fla.1989). That is, the State would have been required to produce some evidence inconsistent with the defendant’s reasonable hypothesis of innocence. See id.

Because the State’s theory was constructive possession of contraband, it needed to show that Appellant had dominion and control over the contraband, knew of its presence, and knew of its illicit nature. Brown v. State, 428 So.2d 250, 252 (Fla.1983). Because Appellant did not have exclusive control over the premises where the contraband was found, the mere presence of the cocaine on the premises was insufficient to establish Appellant’s knowledge of and ability to control it. Id. Rather, the State needed to provide independent proof of these elements. Id. Without Thomas’ statements, there was no evidence that Appellant knew of the presence of the cocaine in either the laundry room or the dining room. Appellant’s knowledge of the presence of these substances and his dominion and control over them could not be inferred from the evidence presented, as the evidence was not inconsistent with Appellant’s hypotheses that he had not been in the laundry room and that he had no reason to know about the cocaine hidden in the artificial plant in the dining room. Thus, without Thomas’ statements, the State would not have been able to prove its case for trafficking. See § 893.135(l)(b), Fla. Stat. (2007) (defining the crime of “trafficking in cocaine” according to the amount possessed, which must be at least twenty-eight grams but less than 150 kilograms).

Despite our conclusion that the evidence was legally insufficient to support a conviction for trafficking without the erroneously admitted evidence, we must conclude that Appellant may be retried for this offense. See Pacheco v. State, 698 So.2d 593, 596 (Fla. 2d DCA 1997) (citing Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (holding that retrial is permitted when “a reviewing court determines that a defendant’s conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction”)). Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

KAHN and CLARK, JJ., concur.

      . Although there were two different large quantities of cocaine found in the house and alleged to belong to Appellant, the State charged only one count of trafficking.

      . In contrast, the circumstantial evidence was sufficient to show the lesser-included offense of simple possession based on the baggies with residue found in a dresser that the jury could infer belonged to Appellant, to the exclusion of any reasonable hypothesis of innocence. Cf. Robinson v. State, 936 So.2d 1164 (Fla. 1st DCA 2006) (finding sufficient evidence of possession of drugs and paraphernalia where those items were found in a bedroom containing the defendant’s belongings; the evidence suggested only one person occupied the room; and the defendant's fingerprints were found on baggies that did not contain contraband).

      . Although Appellant argued that his motion for judgment of acquittal should have been granted, he did not argue that Thomas’ statements, once admitted, could not be considered competent, substantial evidence. We are required to consider even erroneously admitted evidence when reviewing the denial of a motion for judgment of acquittal. Lewis v. State, 754 So.2d 897, 902 (Fla. 1st DCA 2000).


text:
    Ngozi EKECHI, Appellant, v. FIRST AMERICA/FIRST STUDENT and Gallagher Bassett Services, Inc., Appellees.
    No. 1D10-2465.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.
    Ngozi Ekechi, pro se, Appellant.
    Stephen M. Armstrong, Jacksonville, for Appellees.
   PER CURIAM.

We vacate in part the order on appeal, by striking the following language from the decretal portion: “Interest will accrue on any unpaid sum at the rate allowed by statute. For all of which let execution issue.” See Jackson v. Computer Science Raytheon, 36 So.3d 754, 757 (Fla. 1st DCA 2010) (noting that section 440.15(12), Florida Statutes (relating to employee’s repayment of indemnity benefits), does not impose interest on unpaid principle); see also § 440.25(4)(e), Florida Statutes (2008)(lim-iting JCC’s authority to entry of “compensation order” — rather than judgment, as defined by section 55.01(1), Florida Statutes (2008)). Because we find no merit in Claimant’s arguments for reversal of the remainder of the order, we AFFIRM the order as modified. See Lawrence v. Aquarius Sales & Serv., Inc., 30 So.3d 690 (Fla. 1st DCA 2010) (modifying order by striking JCC’s findings on issue not pled below, and affirming as modified); Orkin Pest Control (Rollins, Inc.) v. Dykes, 464 So.2d 1299, 1300 (Fla. 1st DCA 1985) (modifying and affirming order of deputy commissioner where commissioner granted remedy to parties not “actually before” him).

WOLF, KAHN, and WEBSTER, JJ., concur.


author: FARMER, J.

text:
    Miakkar L. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3445.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Rehearing Denied Dec. 22, 2010.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Brown was convicted of burglary of a dwelling and possession of burglary tools. He appeals, arguing that his seizure and search of his person were improper and the evidence should have been suppressed. We affirm.

As the event was still in progress, the resident of the unit where the burglary was taking place called police. While speaking to police on the phone, a police unit near the area responded immediately and seized defendant, the only person around, as the resident told police the intruder was leaving the rear area of the condominium. They took him to the unit, where the resident identified him as the person burglarizing the residence. Police also saw fresh pry marks near the lock mechanism on the sliding glass door at the rear of the house. They arrested him at that point. During a routine search of his person, police found a “rigged” screwdriver hidden in his underwear.

The resident testified to hearing a sound at his door as he looked through the peephole and saw an unfamiliar black male. Seconds later, he saw the same man jump over the fence in the backyard, landing close to the sliding door. Because he was then on the phone with 911, he did not see what the man was doing but he did hear banging on his sliding door sounding like someone was trying to break the lock. When he finally looked outside, he noticed the man leaving the backyard of the unit just as a police officer arrived. He described the man as 5 § 8 and 180 pounds. Police confirmed this description with testimony that the suspect was 5 § 9 and 180 pounds. The resident was certain the man stopped by police was the same man he saw at his home and in the backyard.

On appeal, defendant argues (as he did at trial) that police lacked a well-founded, articulable suspicion to believe defendant was involved in criminal activity justifying an investigatory seizure and search. He relies on Woodson v. State, 579 So.2d 381 (Fla. 5th DCA 1991), where the court held that police observation of a man walking down the street at 8:45 in the morning with one or two other males in an area described as “problem” did not give rise to a founded suspicion. 579 So.2d at 382. Police were responding to a call regarding two suspicious males sleeping in a car. 579 So.2d at 381. Here defendant contends that, similarly, the officer’s observation of him walking away from the area between the victim’s townhouse was insufficient to justify an investigatory stop. Other than being male and in the area, which itself does not amount to founded suspicion, he contends there was no reason to stop and detain him.

Defendant argues that, as in Woodson, a mere hunch is insufficient on which to ground an investigatory seizure. See Moore v. State, 584 So.2d 1122 (Fla. 4th DCA 1991) (holding that bike rider in early morning hours, just blocks from apartment where burglary reported in progress, was insufficient to support reasonable suspicion); Phillips v. State, 781 So.2d 477 (Fla. 3d DCA 2001) (holding that man in torn clothes with grass stains walking on street near burglarized home insufficient to justify investigatory stop). We have no quarrel with those holdings.

But in this case there was something more to justify the stop. Police arrived at the scene while the event was still playing out. The resident described the suspect with enough particularity and directed police to the precise place where the intruder was taking his leave from the scene. Police found only a single person fitting that description at that precise place and time. And that person turned out to be defendant. Seizing him temporarily to return for the resident to make an identification was not unreasonable under these specific circumstances. They constitute additional facts missing in the authorities relied on by defendant.

Defendant also appeals his sentence as a prison releasee reoffender. To prove the required release date, the State relied on a records custodian’s sealed Certification of Records complying with § 90.902(H). A computer printout detailing Defendant’s overall inmate record was attached. Although the ending date stated on the records was not explicitly labeled release date, in context that can be its only meaning. There is nothing about this evidence bringing it within the holding in Yisrael v. State, 993 So.2d 952 (Fla.2008).

Affirmed.

WARNER and POLEN, JJ., concur.

      . See Parker v. State, 973 So.2d 1167, 1168-69 (Fla. 1st DCA 2007) (holding DOC Crime and Time Report admissible as business record where DOC records custodian properly certifies compliance with §§ 90.803(6) and 90.902(11), Fla. Stat.).


text:
    Donald Ray BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2537.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 2010.

      Donald Brown, Madison, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, Donald Ray Brown [“Brown”], filed in this Court an untimely notice of appeal in which he allegedly seeks review of a June 14, 2010, order denying his motion to vacate and set aside judgments and sentences. The lower court clerk, however, by affidavit, asserts that there is no June 14, 2010, order in the record, but the record does contain a June 4, 2010, order dismissing Brown’s motion to vacate or set aside judgment and sentence.

Because Brown filed his notice of appeal on July 9, 2010, more than thirty days from the June 4, 2010, order, this Court issued an order requiring Brown to show cause why his appeal should not be dismissed for lack of jurisdiction as untimely. Brown did not make a coherent response to the show cause order, and we dismissed his appeal.

Brown filed a motion for rehearing, arguing that the order he sought to have reviewed was indeed rendered on June 14 and, as proof, he attached a copy of the order, dated June 14. We accordingly withdrew our dismissal and appointed the circuit court as commissioner to make findings as to whether the order was rendered on June 4 or June 14, cautioning Brown that making false statements under oath in an official proceeding is perjury.

The circuit court’s report has now been filed. It concluded, based upon testimony received from several witnesses, including the court clerk and the assistant state attorney, that the order was rendered on June 4. The court clerk testified that the original order had the clerk’s barcode on it and that- the original order was clearly dated June 4 and was docketed on June 4. She stated that she could not conceive of a clerical error that would allow an order dated June 14 to be docketed on June 4. The trial judge’s clerk testified that she recognized her signature on the certificate of service dated June 4.

The assistant state attorney testified that his office received the order on June 7. Every order received by his office is time stamped, scanned and bears a scan date in red ink. The time stamp on his copy was June 7, the scan date was June 8. He testified that he personally received the order on June 11, as evidenced by his initials and the date on the front of the order.

Brown testified and said that he thought it odd that he received the order the same date that it was entered. He offered the prison mail log as evidence that he received the order on June 14.

The trial court concluded that Brown had failed to present any evidence that the order was actually rendered on a date later than June 4 and that Brown’s testimony was not credible.

It appears to us that the date on the order was altered by the addition of a digit in an attempt to make the untimely notice of appeal timely. Accordingly, we reinstate the dismissal of Brown’s appeal for lack of jurisdiction. Further, we direct the Clerk of this Court to forward a certified copy of this opinion, along with the commissioner’s report, to the appropriate institution or facility of the Department of Corrections for consideration of disciplinary procedures. § 944.279, Fla. Stat. (2010).

APPEAL DISMISSED.

GRIFFIN, PALMER and LAWSON, JJ., concur.


author: TORPY, J.

text:
    R.P., Father of S.P., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D10-1991.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2010.
    Carl S. New, Ocala, for Appellant.
    Kelly A. Swartz, Rockledge, for Appel-lee.
    Wendie Michelle Cooper, Tavares, for Guardian ad Litem.
   TORPY, J.

We affirm the lower court’s order that terminated the parental rights of Appellant, rejecting the contentions that the evidence was insufficient to support termination and that termination was not the least restrictive means of protecting the child. We have specifically addressed the merits of the insufficiency argument, notwithstanding Appellee’s protestation that this argument was not preserved. In doing so, we align ourselves with the Fourth District’s decision in H.D. v. Department of Children & Families, 964 So.2d 818 (Fla. 4th DCA 2007). We acknowledge apparent conflict with J.D. v. Department of Children & Families, 825 So.2d 447 (Fla. 1st DCA 2002).

AFFIRMED.

PALMER and LAWSON, JJ., concur.


text:
    CLAY COUNTY SHERIFF’S OFFICE and Scibal Associates of Florida, Appellants, v. Lance KRAEMER, Appellee.
    No. 1D10-3048.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.
    Richard M. Stoudemire of Boyd & Jen-erette, P.A., Jacksonville, for Appellants.
    David P. Dearing of Rahaim, Watson, Dearing & Moore, P.A., Jacksonville, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier appeals an award of attorney’s fees and costs, and Claimant cross-appeals the denial of a claim for neu-romuscular massage therapy. We reverse the award of attorney’s fees and costs, and affirm the denial of neuromuscular massage therapy.

The Employer/Carrier defended the claim for therapy by asserting the matter was not within the jurisdiction of the Judge of Compensation Claims (JCC) because it was subject to utilization review, and by asserting that it was not medically necessary. The JCC concluded the claim was within his jurisdiction, but denied it because Claimant failed to prove it was medically necessary. We do not disturb the JCC’s conclusion that Claimant failed to prove the therapy was medically necessary. Although the Judge of Compensation Claims stated in the order that Claimant was seeking attorney’s fees under the “medical only” provision of section 440.34(3)(a), Florida Statutes, he awarded Claimant attorney’s fees and costs from the Employer/Carrier for “establishing jurisdiction.” This was clearly erroneous because Claimant did not.successfully assert a claim for medical benefits only. Consequently, the award of attorney’s fees and costs is REVERSED. The denial of neu-romuscular massage therapy is .AFFIRMED.

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


text:
    Ronnie D. WYNN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5459.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.
    Crystal McBee Frusciante, Jupiter, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Ronnie D. Wynn is hereby afforded a belated appeal from the order denying amended motion for postconviction relief in Leon County Circuit Court case number 2005-CF-3373. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

VAN NORTWICK, LEWIS, and CLARK, JJ., concur. •


text:
    Shemika Lashonda BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4045.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Carey Haughwout, Public Defender, and David John MePherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Shemika Bell timely appeals the trial court’s denial of her motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). We reverse and remand for correction of the scoresheet and resentencing.

Bell was on probation. An affidavit of violation of probation was filed, but was ultimately dismissed. A few months later, a second affidavit of violation was filed for conduct different than that covered in the first affidavit. Appellant admitted the violations contained in the second affidavit. Her scoresheet erroneously contained six extra points for a community sanction violation, apparently based on the first affidavit of violation that had been dismissed.

The record does not conclusively establish that the trial court would have sentenced Bell to the same sentence in this case had the scoresheet been correct. See Sanders v. State, 35 So.3d 864, 870-71 (Fla.2010). From the comments made in the sentencing transcript, it appears that both the trial judge and the prosecutor operated under the assumption that Bell’s probation had previously been violated.

Reversed.

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


text:
    T.S., the Mother, Appellant, v. GUARDIAN AD LITEM and Department of Children and Families, Appellees.
    No. 4D10-2386.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Denise E. Kistner of the Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant.
    Hillary S. Kambour, Tavares, for appel-lee Guardian ad Litem.
    Bill McCollum, Attorney General, Tallahassee, and Thomas B. Arden, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children and Families.
   PER CURIAM.

In this appeal stemming from a dependency case involving T.S.’s three children, T.S. argues that the trial court erred in terminating protective supervision and placing the children in the custody of their respective natural fathers. A termination of protective supervision order is reviewable under an abuse of discretion standard. C.A. v. Dep’t of Children & Families, 988 So.2d 1247, 1249 (Fla. 4th DCA 2008). We reverse because the motion to terminate protective supervision was heard at a status hearing, which was scheduled for the purpose of receiving a therapist’s report, and T.S. was not given notice that the motion would be heard at that time. See R.H. v. Dep’t of Children & Families, 948 So.2d 898, 899 (Fla. 5th DCA 2007) (noting that it was error and a violation of the mother’s due process rights to terminate protective supervision without prior notice that permanency would be decided). Here, the trial court abused its discretion where the mother objected to termination of protective supervision and there was no prior notice that the Guardian Ad Litem’s pending motion for closure of the case as to the three children would be at issue at the status hearing. The mother was not prepared, nor was she required to be prepared, to defend the significant motion to terminate protective supervision, which although filed, had not been noticed for hearing. See Khan v. Dep’t of Rev., 901 So.2d 992, 993 (Fla. 4th DCA 2005) (“It is an essential part of the concept of due process that any relief granted at a hearing be within the kind of relief sought by the notice given for hearing.”).

Reversed and remanded for further proceedings.

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.


author: LaROSE, Judge.

text:
    Henry Earl DONALDSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3062.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2010.
    Henry Earl Donaldson, pro se.
   LaROSE, Judge.

Henry Earl Donaldson appeals an order dismissing his motion for postconviction relief. See Fla. R.Crim. P. 3.850. The order specifically notes that the dismissal is without prejudice; it gives Mr. Donaldson thirty days to refile a facially sufficient motion. He did not do so. The order states that it is not appealable.

Mr. Donaldson also appeals a separate order denying him an extension of time to refile his motion for postconviction relief.

Neither order is appealable. Accordingly, we dismiss. See, e.g., Ham v. State, 36 So.3d 189 (Fla. 2d DCA 2010) (dismissing appeal because order denying motion for extension of time was not a final, appeal-able order); Herron v. State, 34 So.3d 206 (Fla. 2d DCA 2010) (explaining that appellate courts do not have jurisdiction to review rule 3.850 nonfinal orders). Upon remand, the postconviction court should enter a final appealable order.

Dismissed.

KHOUZAM and BLACK, JJ., Concur.


author: LAGOA, J.

text:
    Michael J. KURGAN, Appellant, v. MORTON D. WEINER/AMPAC, INC., a Florida corporation, Appellee.
    No. 3D10-14.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 2010.
    Michael J. Kurgan, in proper person.
    Bernstein Chackman Liss & Rose and Neil Rose, Hollywood, for appellee.

      Before WELLS, CORTINAS, and LAGOA, JJ.
   LAGOA, J.

Appellant Michael J. Kurgan appeals from a final judgment awarding attorney’s fees and costs to appellee Morton D. Weiner/AMPAC, Inc., under section 57.105, Florida Statutes (2009). Based on appel-lee’s confession of error and this Court’s own review of the record, we reverse the trial court’s entry of final judgment.

Because the order on appeal assesses attorney’s fees without making the statutory findings required under section 57.105 to support the award, we are compelled to reverse. See Valdes v. Lovaas, 784 So.2d 474 (Fla. 3d DCA 2001); Russo & Baker, P.A. v. Fernandez, 752 So.2d 716 (Fla. 3d DCA 2000); Broad & Cassel v. Newport Motel, Inc., 636 So.2d 590 (Fla. 3d DCA 1994); Warshaw v. Monroy, 515 So.2d 307 (Fla. 3d DCA 1987); see also Shortes v. Hill, 860 So.2d 1 (Fla. 5th DCA 2003); Goldberg v. Watts, 864 So.2d 59 (Fla. 2d DCA 2003).

We note that this Court’s reversal does not mean to imply that we agree or disagree with the imposition of fees in this case, but only that the record and order on appeal lack the findings necessary for the imposition of fees pursuant to the statute. See Valdes, 784 So.2d at 475 n. 2. The final judgment is therefore reversed and we remand for proceedings consistent with this opinion.

Reversed and remanded.


text:
    Jonathan SHAUDYS, Appellant, v. Kimberly DESHAW, Appellee.
    No. 4D09-4945.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.
    James R. Rich of the Law Office of James R. Rich, P.A., West Palm Beach, for appellant.
    Kimberly Deshaw, Lake Worth, pro se.
   PER CURIAM.

Affirmed. See McKay v. Haikey, 860 So.2d 1046 (Fla. 5th DCA 2008).

WARNER, POLEN and STEVENSON, JJ., concur.


author: KELLY, Judge.

text:
    Michael James KINNEY, Appellant, v. Jamie Danielle KINNEY, a/k/a Jamie Burnes, Appellee.
    No. 2D09-5932.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2010.

      Michael James Kinney, pro se.
    Deborah M. Schmitt, Tampa, for Appel-lee.
   KELLY, Judge.

Michael James Kinney, the Husband, appeals an order denying his motion for modification of a judgment of dissolution of marriage. The judgment of dissolution anticipates further judicial labor on the issue of “retroactive child support,” and it is not final in this respect. In his motion for modification, the Husband, in essence, sought reconsideration of or rehearing on matters that either have not been finally determined by the trial court, including retroactive child support, or otherwise will not be at issue until the rendition of a final, appealable judgment of dissolution of marriage.- The order denying the Husband’s motion is a nonappealable order. Accordingly, we dismiss this appeal.

Dismissed.

CASANUEVA, C.J., and LaROSE, J„ Concur.