author: LEVINE, J.

text:
    Orlando BARRIOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1384.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   LEVINE, J.

Appellant was convicted of attempting to obtain a mortgage by false representation, grand theft in the first degree, and providing false information to defraud a financial institution. We find that the trial court erred in reducing the count of obtaining a mortgage by false representation to an attempt, instead of granting a judgment of acquittal. We also find that the trial court erred in not granting a judgment of acquittal as to grand theft in the first degree. Finally, as to providing false information to defraud a financial institution, we find that the trial court correctly denied the judgment of acquittal, and we affirm appellant’s conviction for that count.

Appellant obtained a $815,000 mortgage in order to purchase land and build a home. Appellant approached his girlfriend’s cousin, a mortgage broker, in order to obtain financing. Appellant filled out a uniform residential loan application and listed his gross monthly income as $8,900 per month. The loan application process required appellant to fill out a second loan application, where appellant again listed his gross income as $8,900 per month. At closing, appellant listed his income as $8,900 per month a third time. The state’s theory of prosecution was that appellant falsified his monthly income by inflating it in order to qualify for approval for the mortgage. The state presented evidence that appellant’s wages in 2003, 2004, and 2005 were less than the income reported by appellant on his mortgage application. The state contended that the evidence of the incomes presented in appellant’s income tax returns proved that appellant submitted false information on the mortgage application.

At trial, appellant moved for judgment of acquittal on all three counts. As to the count of obtaining a mortgage by false representation, after the state conceded that there was only circumstantial evidence of reliance by the bank on appellant’s false information in issuing the mortgage, the trial court granted a judgment of acquittal and reduced that count to an attempt. The trial court denied the other motions for judgment of acquittal, and appellant was convicted of the three counts. This appeal ensued.

A motion for judgment of acquittal is reviewed under a de novo standard of review. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.” Id. However, “[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989).

Appellant was convicted of attempting to obtain a mortgage by false representation. The statute specifically provides:

Any person who, with intent to defraud, obtains any mortgage, mortgage note, promissory note or other instrument evidencing a debt from any person or obtains the signature of any person to any mortgage, mortgage note, promissory note or other instrument evidencing a debt by color or aid of fraudulent or false representation or pretenses, or obtains the signature of any person to a mortgage, mortgage note, promissory note, or other instrument evidencing a debt, the false making whereof would be punishable as forgery, shall be guilty of a felony of the third degree....

§ 817.54, Fla. Stat. (2009).

Further, to prove this crime, there must be evidence of the victim’s reliance on the defendant’s misrepresentation. Adams v. State, 650 So.2d 1039, 1041 (Fla. 3d DCA 1995). Section 817.54 “criminalizes a specific form of false pretense crime. Accordingly, the victim’s reliance on the false or misrepresented information is an essential element of the offense.” Id. (citations omitted). In this case, the alleged fraud was completed. The forms indicating appellant’s monthly income were filled out and submitted for consideration of a mortgage. The state, however, was unable to introduce evidence that the bank issuing the mortgage specifically relied on the forms filled out by appellant certifying his monthly income. A conviction for mortgage fraud will be vacated where there is no proof of reliance on the misrepresentation by the victim. See Grant v. State, 43 So.3d 864, 868-69 (Fla. 5th DCA 2010); Pizzo v. State, 910 So.2d 287, 293 (Fla. 2d DCA 2005).

As a way to circumvent this problem of proof, the state sought to proceed on this count as an attempt. The state asserted that appellant’s conduct amounted to an attempt without the necessity of proving reliance. We find that the trial court erred in allowing the case to proceed as an attempt and not granting a judgment of acquittal. “Criminal attempt requires three elements: the intent to commit a crime, an overt act towards its commission, and failure to successfully complete the crime.” Bist v. State, 35 So.3d 936, 941 (Fla. 5th DCA 2010). In the present case, there was no evidence of a failure to complete the crime. In fact, there was evidence that the crime was completed—the submission of a misrepresentation in order to obtain a mortgage. The problem was proof of reliance, not completion of a crime. We, thus, reverse and remand for the trial court to grant a judgment of acquittal on this charge.

As to the charge of grand theft in the first degree, we find that the trial court also erred in not granting a judgment of acquittal. We find that the state did not provide evidence that appellant intended to deprive the victim of its property at the time of the taking. The state based its argument—that appellant never intended to pay back the monies borrowed from the bank—on the evidence that appellant misrepresented the amount of money he made per month in order to qualify for the mortgage. However, this was insufficient to support a conviction for grand theft. See Vroom v. State, 48 So.3d 82, 84 (Fla. 2d DCA 2010) (finding the evidence insufficient to support grand theft conviction where it showed only that the defendant’s “financial condition at the time of the requested repayment was not consistent with that represented in the financial disclosure statement”).

Finally, as to the count of providing false information to defraud a financial institution, we find that the trial court did not err in denying appellant’s motion for judgment of acquittal. We find that there was competent, substantial evidence for the jury to find that appellant defrauded the bank by giving false information about his monthly income when he claimed three times that he made $8,900 per month. See United States v. Honarvar, 477 F.3d 999, 1001 (8th Cir.2007) (“The jury could decide for itself which evidence it found more persuasive and make a sound determination regarding the falsity of [defendant’s] statements” by comparing representations of income on credit card applications with income tax returns).

In summary, we find that the trial court erred in not granting judgments of acquittal for grand theft in the first degree and obtaining a mortgage by false representation. As such, we reverse and remand those convictions, and we affirm the conviction for providing false information to defraud a financial institution.

Affirmed in part, reversed in part, and remanded.

TAYLOR and HAZOURI, JJ., concur.

      . Appellant’s tax preparer testified that appellant’s wages in 2003 were $21,068. In 2004, appellant’s adjusted gross income was $1,555, with total gross receipts of about $94,000. Another tax preparer testified that appellant’s adjusted gross income in 2005 was negative $4,273. Appellant had gross receipts of $83,080 that year. None of the evidence admitted demonstrated income to corroborate the $8,900 per month income listed by appellant.

      . By conceding that there was only circumstantial evidence, the state appeared to believe that it could proceed only with an attempt of the substantive crime. As the record demonstrates:
      [THE STATE]: I think I’m going to concede on — on—well, I will — I will concede that we — we the only evidence that we have of — of the fact that the victim was deceived would be circumstantial evidence. It would be circumstantial evidence there. And that is—

      THE COURT: Okay. All right.... Well, what happens with count one then, do I reduce it to attempt?
      [THE STATE]: Judge, under — under the Adams case, yes, that’s what' — essentially what they say cause we — the Adams case really — for—for a different reason goes to that same — that same reasoning that there's an attempt.

      THE COURT: Okay. I’ll grant the JOA on count one reducing it to an attempt....

      . The trial court relied on Adams to permit the state to proceed on an attempt to obtain a mortgage by false representation charge. We distinguish Adams from the case at bar. In Adams, the defendant's false representations were discovered prior to the approval of the loan. 650 So.2d at 1040. Thus, the defendant failed to complete the crime. The loan was never completed and the misrepresentation never relied upon.


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    Martha REY, as Personal Representative of the Estate of Fernando F. Rey, and for the use and benefit of herself, Martha Rey, as the decedent’s surviving wife, and his two surviving children, Fernando C. Rey and Jennifer Rey, Appellant, v. PHILIP MORRIS, INC., Lorillard Tobacco, et al., Appellees.
    No. 3D10-1333.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.
    Brannock & Humphries and Celene H. Humphries, Tampa; Austin Carr, coral Gables, for appellant.
    Greenberg Traurig, and David L. Ross, Elliot H. Scherker and Brigid F. Cech Samóle, Miami; Clarke Silverglate and Karen H. Curtis, for appellees.
    Before RAMIREZ, SUAREZ and SALTER, JJ.
   SALTER, J.

ON MOTION FOR REHEARING

Upon consideration of the motion for rehearing filed on behalf of appellee, Vector Group Ltd. (“Vector”), the Court grants the motion in part, withdraws its previous opinion issued September 28, 2011, and substitutes the opinion which follows. The motions for rehearing filed by appellees other than Vector, and those portions of Vector’s motion for rehearing not addressed in this opinion, are denied.

A personal representative for the estate of her late husband appeals a final summary judgment in favor of three tobacco company defendants in this Engle-proge-ny case. It is undisputed that the decedent, Mr. Rey, never smoked cigarettes manufactured by those three defendants, and thus that summary judgment was appropriate with respect to the traditional product liability claims against each company.

In this appeal, we are asked to review the trial court’s determination that summary judgment in favor of those three companies was also appropriate under En-gle on the “civil conspiracy to fraudulently conceal” claim asserted by Mrs. Rey against all defendants. We reverse the final summary judgment in favor of the three tobacco companies as to that claim and only that claim (Count IV of the Amended Complaint), based on our reconciliation of the holdings by this Court and our supreme court in Engle.

I. Preclusive Findings by the Florida Supreme Court

We begin — and ultimately end — with these findings by our supreme court in Engle:

We approve the Phase I findings for the class as to Questions 1 (that smoking cigarettes causes aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, ad-enocarcinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer), 2 (that nicotine in cigarettes is addictive), 3 (that the defendants placed cigarettes on the market that were defective and unreasonably dangerous), 4(a) (that the defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both), 5(a) (that the defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment), 6 (that all of the defendants sold or supplied cigarettes that were defective), (7) (that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants), and 8 (that all of the defendants were negligent). Therefore, these findings in favor of the Engle Class can stand.

Engle, 945 So.2d at 1276-77 (emphasis added).

There is no dispute for this purpose that Mr. Rey was a member of the Engle Class; that he was addicted to, purchased, and smoked cigarettes designed, manufactured, advertised, and marketed by some of the defendants (but not including the three defendants/appellees in the case at hand); and that he died of lung cancer in 1996. Additionally, Lorillard Tobacco and Lig-gett Group were “defendants” for purposes of the preclusive Engle findings. On the basis of those facts and prior findings, Mrs. Rey maintains that brand usage is not a required element of her civil conspiracy/concealment claim.

The three appellees assert that other language in the original 2000 Engle Class representative verdict and judgment in the trial court, this Court’s 2003 reversal of that verdict and judgment, and the 2006 Engle decision by our supreme court, require an affirmance of the final summary judgment in their favor against Mrs. Rey. They argue that collectively those three prior rulings preclude a conspiracy/concealment claim against any defendants that did not actually provide cigarettes to the class member/plaintiff.

II. Conspiracy Versus Traditional Product Liability Claims

The three class representatives in the original Engle trials were Mary Farnan, Frank Amodeo, and the estate of Angie Della Vecchia. Each asserted a civil conspiracy/concealment claim against all defendants (which included Lorillard Tobacco and Liggett Group, but not Vector). In special interrogatory verdicts in 1999 and 2000, the jury found in favor of each representative plaintiff, and against all defendants, on the plaintiffs’ civil conspiracy/concealment claims.

On appeal, this Court set aside all of the jury’s findings against manufacturer defendant Liggett Group because, among other reasons, “none of the class representatives purchased or smoked Lig-gett/Brooke cigarettes.” Liggett Grp., Inc. v. Engle, 853 So.2d 434, 466 (Fla. 3d DCA 2003), aff'd in part and quashed in part, 945 So.2d 1246. Although that ruling reversed the jury’s civil conspiracy/concealment findings as well as those pertaining to the product liability claims by the class representatives, this Court narrowed its “brand usage” requirement to the product liability claims, explaining in a footnote:

It is aphoristic that a plaintiff cannot prevail on claims for negligence, breach of warranty or strict liability, unless the plaintiff establishes that the product which allegedly caused the plaintiffs injury was manufactured or sold by the defendant. See Mahl v. Dade Pipe and Plumbing Supply Co., Inc., 546 So.2d 740 (Fla. 3d DCA 1989). Here, it is undisputed that the Liggett defendants did not manufacture or sell any of the products that allegedly caused injury to the individual plaintiff representatives.

Id. at 466 n. 46.

The three manufacturer appellees in this case argue two inferences to support their “brand usage” limitation. First, they assert that the only other possible reason for this Court’s reversal of the civil conspiracy/concealment claim in 2008 (zero percent comparative fault findings in favor of Lig-gett regarding the product liability claims) did not apply to the conspiracy count, such that the conspiracy verdict must have been reversed because the class representatives did not use the Liggett brand. Second, they point to the Florida Supreme Court’s approval of this Court’s “conclusion that a directed verdict should be granted in favor of Liggett and Brooke” as to class representatives Farnan and Della Vecchia, with no carveout for the civil conspiracy/concealment verdict against those defendants. See Engle, 945 So.2d at 1255.

Such inferences are unwarranted, however. First, this Court’s opinion also reversed all counts as to all defendants because of “the prejudicial impact of the errors at trial which, combined with the improper conduct of counsel and the trial plan, compels reversal as to all the defendants.” Liggett Grp., Inc., 858 So.2d at 467. Second, in reinstating the total money damage awards to Farnan and Della Vecchia in 2006 as to all defendants other than Liggett and Brooke, the Florida Supreme Court did not expressly address the status of the civil conspiracy/concealment claims against those defendants. On rehearing, the appellees assert that Farnan and Della Vecchia asked the Florida Supreme Court to reinstate the awards against Liggett or Brooke on the civil conspiracy/concealment claims, and that the supreme court’s refusal to explicitly grant such relief must be interpreted to preclude the assertion of a civil conspiracy/concealment claim by any Engle-progeny plaintiff against any defendant other than a manufacturer as to which brand usage is established by the plaintiff.

But, in Engle, the Florida Supreme Court did not impose a “brand usage” condition upon claims for civil conspiracy/concealment. To the contrary, Engle approved, and held binding in future Engle Class lawsuits, the findings that all the defendants in that case concealed (or omitted) material information not otherwise known or available and that all defendants agreed to that concealment or omission. “All defendants” logically does not mean “only those defendants which manufactured the cigarettes used by the plaintiff.” No Florida appellate decision “is authority on any question not raised and considered, although it may be involved in the facts of the case.” Benson v. Norwegian Cruise Line Ltd., 859 So.2d 1213, 1217 (Fla. 3d DCA 2003) (quoting State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 So. 4, 6 (1930)).

Our analysis is based also on our decisions regarding civil conspiracy claims generally. In Charles v. Florida Foreclosure Placement Center, LLC, 988 So.2d 1157 (Fla. 3d DCA 2008), we examined the elements of a claim for civil conspiracy: “(a) an agreement between two or more parties, (b) to do an unlawful act or do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Id. at 1159-60 (quoting Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997)).

The alleged joint and several liability of the three appellees in this case does not turn on Mr. Rey’s use of those appellees’ cigarettes. The essential findings for the civil conspiracy/eoncealment claim have been approved as to Mr. Rey and other members of the Engle Class as to Loril-lard Tobacco and Liggett Group. Those manufacturers may not have supplied the cigarettes used by Mr. Rey, but they “concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both,” and they “agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature.” Engle, 945 So.2d at 1277. In short, the preclusive Engle findings establish the agreement among all Engle defendants and the unlawful acts committed (or unlawful means employed) by each of them. The findings also extend to the causation between the acts of the co-conspirator Engle defendants and the injuries suffered by Mr. Rey and his survivors.

As to Vector, such findings may or may not be established at trial or disposed of via summary judgment. The existing record does not support a summary judgment in favor of Vector based on “brand usage” alone; to obtain a summary judgment on the civil conspiracy/concealment claim, Vector will need to satisfy the requirements of Florida Rule of Civil Procedure 1.510 and to establish that there is no genuine issue of material fact regarding that claim.

Were we to hold otherwise, arguably culpable non-manufacturer defendants also could not be held liable for tobacco-related injuries — defendants such as the Council for Tobacco Research and the Tobacco Institute — for failure to satisfy the purported “brand usage” requirement. We discern no such intention or ruling in Engle.

Finally, the appellees urge us to uphold the summary judgments on the basis of Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990), a products liability claim involving the drug diethylstilbestrol (DES). That case pertains to products liability claims, including a fraud claim, against eleven defendants who manufactured and marketed DES, and the question of whether market-share and other theories of liability should be applied. The case does not, however, involve claims of conspiracy to conceal material facts among a group of manufacturer defendants.

The Supreme Court of Florida’s rejection of the “concert of action” theory of liability as applied to the manufacturers of DES approved the district court’s analysis and rejection of that theory, Conley v. Boyle Drug Co., 477 So.2d 600 (Fla. 4th DCA 1985). The elements of the “concert of action” theory originate from the Restatement of Torts § 876 and are distinguishable from the “conspiracy to conceal” claim involved in the case at hand and in Engle. The “concert of action” theory may extend to tacit understandings among a group of manufacturers, to “conscious parallel activities,” and to “substantial assistance or encouragement,” and was appropriately rejected because it could “render virtually any manufacturer liable for the defective products of an entire industry, even if it could be demonstrated that the product which caused the injury was not made by the defendant.” Conley, 477 So.2d at 603 (quoting Sindell v. Abbott Labs., 26 Cal.3d 588, 168 Cal.Rptr. 132, 607 P.2d 924, 938 (1980)).

Moreover, Conley was decided by our supreme court sixteen years before its decision in Engle approving the jury’s findings as to concealment of material information and an agreement among the tobacco defendants to do so. We doubt that the Supreme Court of Florida would have approved those findings had it believed that Conley made the findings irrelevant in further proceedings. We therefore reject the appellees’ argument that liability under Engle for “conspiracy to conceal” was somehow abrogated by the earlier rejection of “concert of action” DES liability in Conley.

III. Conclusion

The law of civil conspiracy is striking in its extension of liability to a co-conspirator which may not have caused any direct injury to the claimant. These principles have their origins in the policy that an entire group of conspirators acting collectively to achieve an unlawful goal — including consumer fraud — should be jointly and severally liable for the acts of all participants in the scheme.

Engle does not hold that traditional product liability theories are the only claims that may go forward against tobacco companies and their collectively-supported research or industry groups, or that all smoking-related claims may only proceed against those defendants which manufactured the specific brands consumed by a particular plaintiff. To the contrary, Engle has reaffirmed that existing civil conspiracy/fraudulent concealment claims are available to Engle-progeny claimants. For these reasons, we reverse the final summary judgment against Mrs. Rey as to Count IV (“civil conspiracy— fraud by concealment”) only, and we affirm as to all other claims against these three appellees. As noted, our opinion does not decide Vector’s separate motion for summary judgment on other grounds, or extend the preclusive Engle findings to Vector.

Reversed in part, affirmed in part, and remanded for further proceedings in accordance with this opinion.

      . Lorillard Tobacco Company, Liggett Group LLC, and Vector.

      . Individual cases filed pursuant to Engle v. Liggett Group, Inc., 945 So.2d 1246, 1277 (Fla.2006).

      . Engle, 945 So.2d at 1256 n. 3. Vector was not a defendant in Engle (though mistakenly identified as such in the appellant’s initial brief), and this opinion is without prejudice to the trial court’s ultimate disposition of Vector’s separate motion for summary judgment on grounds other than brand usage. Vector also asserts that it is a holding company rather than a cigarette manufacturer. The extent, if any, of Vector's participation in the concealment, material omissions, and conspiracy to conceal facts as adjudicated with respect to the Engle defendants has not yet been determined by the trial court in the case at hand.

      . All of class representative Amodeo’s claims were reversed by this Court — and the Florida Supreme Court affirmed the reversal — based on the statute of limitations. Engle, 945 So.2d at 1276; Liggett Grp., Inc., 853 So.2d at 453-54 n. 23.


author: MARSTILLER, J.

text:
    Terrell DUBOSE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1950.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.

      Richard A. Selinger, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Appellee.
   MARSTILLER, J.

Terrell Dubose (“Appellant”) was found guilty of first degree felony murder, burglary being the supporting felony, and shooting or throwing deadly missiles. The jury based its verdict on evidence showing that Appellant and his two brothers entered the fenced yard of a house without consent, collectively fired twenty-nine bullets into the wood-frame house, and killed an eight-year-old girl. (She died trying to shield her two younger cousins from the bullets.) The shooting was in retaliation for an earlier altercation between one of Appellant’s brothers and a resident of the house.

Appellant seeks reversal of his convictions for the following reasons. First, he asserts that section 810.02, Florida Statutes (2007), the burglary statute, is vague and unconstitutional as applied to him because it does not define the term “curtilage,” and the jury did not understand the meaning of the term. Appellant failed to assert below. Although claims that a statute is facially unconstitutional can be raised for the first time on appeal, see generally Westerheide v. State, 831 So.2d 93, 105 (Fla.2002), the same is not true for as-applied challenges. See Trushin v. State, 425 So.2d 1126, 1129-30 (Fla.1982); Lamore v. State, 983 So.2d 665, 669 (Fla. 5th DCA 2008); Groover v. State, 632 So.2d 691, 692 (Fla. 1st DCA 1994). Because Appellant did not present this issue to the trial court, he failed to preserve it for appellate review.

Second, Appellant claims he was entitled to judgment of acquittal on felony murder because he could not have committed burglary where the yard of the dwelling at issue was not fully enclosed. We disagree. One commits burglary in Florida by “entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein.... ” § 810.02(1), Fla. Stat. (2007). The terms “dwelling” and “structure” are defined to include “the curtilage thereof.” §§ 810.011(1), (2), Fla. Stat. (2007). The area surrounding a dwelling or structure must lie within “some form of an enclosure” to be considered part of the curti-lage. State v. Hamilton, 660 So.2d 1038, 1044-45 (Fla.1995). In this case, the yard of the home Appellant and his brothers fired upon had a chain link fence around it, with an opening in front for the driveway. This court recently held that the enclosure “need not be eontinuous[,] and an ungated opening for ingress and egress does not preclude a determination that the yard is included in the curtilage of the house.” Jacobs v. State, 41 So.3d 1004, 1006 (Fla. 1st DCA 2010). The residential yard in Jacobs was fenced on three sides, with a low-walled stoop in front, and an opening for the driveway. This, we held, constituted “some form of enclosure” as required in Hamilton. Jacobs, 41 So.3d at 1006. See also Chambers v. State, 700 So.2d 441, 441-42 (Fla. 4th DCA 1997) (holding that wood and chain link fencing surrounding residential yard, but with ten to fifteen foot gap to accommodate owner’s boat and trailer, satisfied “some form of enclosure” requirement). The fencing around the residential yard in the instant case similarly satisfies the enclosure requirement in Hamilton.

Finally, Appellant argues that the trial court abused its discretion in limiting cross-examination of prosecution witness Maxie Wilson about crimes the State may not have charged him with in return for his testimony. Wilson, a drug dealer and cousin of Appellant and his brothers, drove the men to the scene of the shooting, supplied them with guns, drove them away from the scene, and helped them hide from law enforcement for several days after the shooting. Wilson testified that a few days after Appellant and his brothers were found and arrested, he too was arrested, but on a revived cocaine trafficking charge. With the help of legal counsel, Wilson negotiated a deal under which he pled guilty to cocaine trafficking, agreed to testify against Appellant and his brothers, and received immunity from prosecution for murder and from federal prosecution for drug trafficking. He mentioned no other offenses included in the grant of immunity.

Appellant’s counsel began cross-examination by asking Wilson whether, when police arrested him on the cocaine trafficking charge, there was a gun in his car. Wilson answered affirmatively and testified that he was not charged with firearm possession by a convicted felon. The following exchange then occurred:

Q. Okay. Where was the gun in the car?
A. I believe it was under the hood.
Q. Under the hood?
A. Yes.
Q. And how did it get there? Do you know?
A. No, sir.
Q. You don’t know how the gun got there?
A. No, sir.
Q. You’re driving around in a car with—
MS. KITE [prosecutor]: Your Honor, I’m going to have to object. I think we need to approach side-bar.

The prosecutor argued that while the nature of uncharged crimes or dropped charges may be relevant in impeaching Wilson, the underlying facts were not relevant. Defense counsel responded that it is appropriate to get into the facts because in addition to murder and federal drug trafficking, there may be other charges Wilson escaped as reward for testifying for the State. The trial court sustained the prosecutor’s objection and told Appellant’s counsel he could only ask Wilson whether he was aware of any other potential charges against him arising from his arrest for drug trafficking.

We conclude that the trial court ruled correctly. “ ‘When charges are pending against a prosecution witness at the time he [or she] testifies, the defense is entitled to bring this fact to the jury’s attention to show bias, motive, or self-interest.’ ” Coolen v. State, 696 So.2d 738, 743 (Fla.1997) (quoting Torres-Arboledo v. State, 524 So.2d 403, 408 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988)). “How far the inquiry can proceed into the details of the matter is within the court’s discretion.” Id. Here, the cross-examination did not concern the facts giving rise to Wilson’s drug trafficking charge. Rather, Appellant’s counsel admitted the line of questioning was intended to reveal criminal conduct by Wilson for which he was not charged, even though Wilson only testified to negotiating his way out of a murder charge and federal prosecution for drug trafficking. Absent testimony from Wilson indicating that other charges were discussed when he negotiated his plea deal, any evidence that he could have been charged with other offenses was simply speculative and irrelevant to show bias, motive or self-interest. The trial court correctly prohibited Appellant’s counsel from pursuing this line of questioning.

AFFIRMED.

HAWKES and RAY, JJ., concur.


author: PER CURIAM.

text:
    Phillip B. DAVID, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6355.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

Phillip B. David appeals the revocation of his probation. David was placed on sex offender probation after he pled guilty to lewd and lascivious exhibition. Following a hearing, the trial court revoked that probation finding that David violated two conditions of sex offender probation. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

Condition 8 of the terms of probation contained in David’s negotiated plea agreement (which was renumbered as condition 20 on his sex offender probation agreement) prohibited David from viewing, owning or possessing any obscene, pornographic or sexually stimulating material. Condition 18 of the terms of probation in the negotiated plea agreement (which was renumbered as condition 29 on his sex offender probation agreement) precluded access of the internet or “other computer services” until a risk assessment had been performed and a sex offender treatment program had been implemented.

David was alleged to have violated these conditions after he was found in a public library using a computer. He admitted at the subsequent hearing that he played computer games on the computer while at the library. He denied viewing pornography. The officers who located David in front of a computer testified that while they did not see pornography or other sexually explicit images on the monitor when they approached, they did see a box on the computer’s toolbar which read “porn” or “trannyporn.” The officers were not able to open any windows as the computer was shutting down as they approached. A subsequent forensic analysis of the computer failed to disclose past user history. At the time of his arrest at the library, appellant was found to have in his possession the addresses of several websites with sexually explicit names.

Probation is a matter of grace, and not right, and a trial court has broad discretion over probation. Adams v. State, 979 So.2d 921 (Fla.2008). Nevertheless, a substantial and willful violation must be established by at least a preponderance of evidence. See Bowman v. State, 974 So.2d 1205, 1206 (Fla. 1st DCA 2008). We agree that the State established by a preponderance of evidence that David violated condition 18 which precluded access to a computer. However, the State did not establish, by a preponderance of evidence, that David violated condition 8. The circumstantial evidence adduced by the State certainly suggested an intent on David’s part to view sexually stimulating material, but the evidence of record does not established that he had accomplished that intent. Accordingly, we reverse that part of the order of revocation of probation which finds a violation as to condition 8. Although a violation of condition 18 could alone support revocation, because the record does not establish that the trial court would have revoked probation and imposed a 15-year sentence on a violation of condition 18 alone, this court is required to remand for the trial court to reconsider its decision to revoke probation and to impose the same sentence. See Smith v. State, 965 So.2d 1252 (Fla. 1st DCA 2007).

AFFIRMED in part, REVERSED in part, and REMANDED.

BENTON, C.J., VAN NORTWICK and SWANSON, JJ, concur.


text:
    Gary T. WASHINGTON, Petitioner, v. DEPARTMENT OF REVENUE CHILD SUPPORT ENFORCEMENT, ex rel. Amanda N. SIMMONS, Respondent.
    No. 1D11-5784.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.
    Carl R. Hayes, Tampa, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The “notice of belated appeal” has been treated by the court as a petition seeking belated appeal. Because the court’s authority to grant belated appeals in accordance with Florida Rule of Appellate Procedure 9.141(c) is limited to criminal cases and does not extend to appeals arising from either civil or administrative matters, the petition seeking belated appeal is denied.

PADOVANO, LEWIS, and CLARK, JJ, concur.


text:
    Cliff O. HANSON, Petitioner, v. STATE of Florida, Respondent.
    Nos. 1D11-5280, 1D11-5497.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.
    Cliff O. Hanson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

On the court’s own motion, the petitions for writ of habeas corpus have been consolidated for consideration and disposition. The petitions and all pending motions are DENIED.

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    Henry Allen GLENN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2910.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.
    Henry Allen Glenn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered October 4, 2010, denying petitioner’s motion for a post-conviction relief in Walton County Circuit Court case numbers 2004-CF-001013 and 2004-CF-001014, 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.

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    Kenneth WIGNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2814.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.
    Kenneth Wigner, 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 December 1, 2010, in Clay County Circuit Court case number 2009-CF-002116, 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 shall appoint counsel to represent him in the belated appeal authorized by this opinion.

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    Deborah BUSCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1238.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.
    Deborah Busch, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on August 19, 2010, in Duval County Circuit Court Case Number 16-2010-CF-005568-AXXX-MA, 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 her in the belated appeal authorized by this opinion.

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    Christopher S. PARDEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0374.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.
    James Owens, Public Defender, and Alice F. Harris, Assistant Public Defender, Milton, for 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 August 17, 2010, in Santa Rosa County Circuit Court case number 2008-CF-1972, 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. The court notes that the lower tribunal has appointed the Public Defender to represent petitioner on appeal.

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    Jose Pablo MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2712.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.
    Sara Elizabeth Dill, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

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


text:
    Carlos Alberto DOMINGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3168.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.
    Clayton R. Kaeiser, Miami, for appellee.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    ' Before WELLS, C.J., EMAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


text:
    Jose RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2016.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.

      Jose Rodriguez, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. The January 2010 postcon-viction motion was untimely. State v. Green, 944 So.2d 208 (Fla.2006). Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to this 2004 plea. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).

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


text:
    Johnny RICARDO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2950.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.
    Johnny Ricardo, Bonifay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Wisenbaugh v. State, 974 So.2d 591 (Fla. 4th DCA 2008); Ackermann v. State, 962 So.2d 407, 408 (Fla. 1st DCA 2007).

MAY, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    Jimmy J. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2990.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.
    Jimmy J. Scott, Milton, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant, Jimmy J. Scott, appeals the trial court’s denial of his motion for post-conviction DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. Appellant alleges that DNA testing could establish that he was not present at the scene of the crime. However, this assertion directly contradicts Appellant’s own testimony at trial in which he acknowledged that he was present at the scene and that he fired his gun in self defense. Identification was not a genuinely disputed issue in this case. Fla. R.Crim. P. 3.858(b)(4). Accordingly, we find no merit to Appellant’s allegation and affirm.

Appellant is cautioned that any further abusive, repetitive, malicious, and/or frivolous filing will result in sanctions, such as a ban on him filing any pro se papers in this court or referral to prison officials for disciplinary procedures. See State v. Spencer, 751 So.2d 47 (Fla.1999); § 944.279(1), Fla. Stat. (2009); § 944,28(2)(a), Fla. Stat. (2009).

Affirmed.

POLEN, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Julia ROLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3229.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.
    Julia Rollins, Ocala, pro se.
    No appearance required for appellee.
   PER CURIAM.

The denial of appellant’s rule 3.800(a) motion is affirmed. The sentencing order does not state that she is ineligible for parole and her life sentence is not illegal. § 775.082(1), Fla. Stat. (1971); see also Wilkinson v. State, 889 So.2d 110 (Fla. 2d DCA 2004).

However, the trial court’s direction to the clerk not to accept further filings from appellant is reversed. Appellant was not given notice or an opportunity to be heard pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), before imposing this sanction.

Affirmed in part; Reversed in part.

WARNER, POLEN and GROSS, JJ., concur.


text:
    Nathaniel BROWN, Appellant, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Appellee.
    No. 1D10-6333.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.
    Nathaniel Brown, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Anne C. Conley, Assistant Attorney General, and Jennifer Parker, General Counsel of Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Brown v. State, 35 So.3d 72 (Fla. 1st DCA 2010).

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


author: EVANDER, J. PALMER, J.

text:
    STATE of Florida, Appellant, v. Annette LATONA, Appellee.
    No. 5D10-3966.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellee.
   EVANDER, J.

The State appeals the trial court’s order dismissing the information filed against Annette Latona. Determining that Lato-na’s motion to dismiss was sufficient to support a dismissal as a matter of law and that the State’s traverse was insufficient to raise a factual issue, we affirm.

The State filed an information charging Latona with one count of possession of oxycodone and two counts of possession of morphine. The arrest affidavit explained that the charges were based on the fact that three prescription pill bottles, with H.H.’s full name on them, were found in Latona’s purse by the police after a traffic stop involving Latona. Two of the prescription pill bottles contained morphine and the other, oxycodone. When questioned by police, Latona stated that she was H.H.’s home health care nurse, that she lived at H.H.’s residence, and that she held H.H.’s pills in her purse because she was afraid that he may take too many of them and possibly overdose.

Pursuant to rule 3.190(c)(4) of the Florida Rules of Criminal Procedure, Latona filed a motion to dismiss the information alleging a “prescription defense.” Specifically, the motion alleged that Latona was in lawful possession of the oxycodone and morphine found in her purse at the time of her arrest because the medications had been lawfully prescribed to H.H. and she was, by virtue of an executed durable power of attorney, H.H.’s attorney-in-fact. The power of attorney, a copy of which was attached to the motion, expressly authorized Latona, inter alia, to “hold ... all intangible and tangible property ... owned by [H.H.].” It further provided that the instrument was to be construed and interpreted as a general durable power of attorney and that the “enumeration of specific powers herein is not intended to, nor does it, limit or restrict the general powers herein granted to [Latona].”

In response, the State filed a sworn traverse pursuant to rule 3.190(d). In its traverse, the State admitted that the medications found on Latona had been lawfully dispensed to H.H. pursuant to a prescription from a physician. The State further admitted that Latona had been designated by H.H. as his attorney-in-fact and that the executed power of attorney was in full force and effect at the time of Latona’s arrest. However, the State disputed that Latona was holding the prescribed medications on behalf of H.H. based on the following:

[Officer] Mechtel states that he interviewed [H.H.], and [H.H.] denied that any person should have possession of his medications.

Significantly, there was no language in the traverse reflecting that H.H. had ever informed Latona that, notwithstanding the language contained in the executed power of attorney, she was not authorized to possess his medications. Furthermore, there was no allegation by the State that Latona had either used or attempted to sell H.H.’s medications.

Section 893.13(6)(a), Florida Statutes (2009) permits an individual to legally possess a controlled substance where the controlled substance was obtained pursuant to a valid prescription. See O’Hara v. State, 964 So.2d 839, 841 (Fla. 2d DCA 2007). The prescription defense is available to the prescription holder and any individual authorized by the prescription holder to hold the medications on his or her behalf. McCoy v. State, 56 So.3d 37, 39 (Fla. 1st DCA 2010).

In the instant case, the State argues there is a disputed issue of fact as to whether Latona exceeded the scope of her authority granted by the power of attorney. We disagree. Pursuant to the express provisions of the power of attorney, Latona was authorized to hold any and all of H.H.’s property — which would include his medications. While H.H. could revoke any or all of the powers he granted to Latona, any such revocation would only be effective as of the time that Latona received notice of the revocation. Florida-Georgia Chem. Co. v. Nat’l Labs., Inc., 153 So.2d 752, 754 (Fla. 1st DCA 1963) (revocation of agency becomes operative as to agent from time agent has actual notice thereof). Here, there was nothing in the record reflecting that H.H. had ever informed Latona that she was no longer authorized to hold his medications. Absent such assertion, H.H.’s alleged statement to Officer Mechtel denying that any person should have possession of his medications constituted an incorrect conclusion of law, not a statement of fact. Accordingly, no disputed issue of material fact was created by the State’s traverse.

AFFIRMED.

LAWSON, J., concurs.

PALMER, J., dissents, with opinion.

PALMER, J.

dissenting.

I respectfully dissent.

Latona filed a motion to dismiss pursuant to rule 3.190(e)(4) of the Florida Rules of Criminal Procedure. In State v. Bell, 882 So.2d 468 (Fla. 5th DCA 2004), our court explained:

A rule 3.190(c)(4) motion should be granted only when the trial court determines that the most favorable construction of the facts does not establish a prima facie case of guilt; if there is any evidence upon which a reasonable jury could find guilt, a motion to dismiss must be denied.... Moreover, on a motion made pursuant to rule 3.190(c)(4), the State is not only entitled to receive the most favorable construction of the evidence but also to have all inferences resolved against the defendant.

Id. at 470.

Latona sought dismissal based on a prescription defense. She attached several documents to her motion, including a copy of a Durable Power of Attorney for Management of the Assets of H.H., as well as a copy of a card which alerted health care providers that H.H. had executed a Durable Power of Attorney for health care. Latona did not attach a copy of the Durable Power of Attorney for health care to her dismissal motion.

The Durable Power of Attorney for Management of the Assets of H.H. reads, in relevant part, as follows:

ARTICLE 3 — AGENT’S POWERS
Powers over money and property. To forgive, request, demand, sue for, recover, collect, receive, hold all such sums of money, debts, dues, commercial paper, checks, drafts, accounts, deposits, legacies, bequests, devised, notes, interests, stock certificates, bonds, dividends, certificates of deposit, annuities, pensions, profit sharing, retirement, social security, insurance and other contractual benefits and proceeds, all intangible and tangible property and property rights and demands whatsoever, liquidated or unliquidated, now or hereafter owned by me, or due, owing, payable or belonging to me or in which I have or may hereafter acquire an interest.

(Emphasis added.) The majority concludes that this provision expressly authorized Latona to “hold any and all of H.H.’s property”; therefore, she was authorized to hold his prescription medications until H.H. notified her that he had revoked such authorization. I disagree.

Florida case law is well-settled that powers of attorney are strictly construed and that the scope of an agent’s authority is limited to what the principal has specifically authorized the agent to do. Dingle v. Prikhdina, 59 So.3d 326, 328 (Fla. 5th DCA 2011); Stalley v. Transitional Hosps. Corp. of Tampa, Inc., 44 So.3d 627, 630 (Fla. 2d DCA 2010); Crawford v. DiMicco, 216 So.2d 769, 772 (Fla. 4th DCA 1968). As such, powers of attorney will be “closely examined in order to ascertain the intent of the principal.” Kotsch v. Kotsch, 608 So.2d 879, 880 (Fla. 2d DCA 1992). Accord DeBueno v. Castro, 543 So.2d 393, 394 (Fla. 4th DCA 1989).

In my view, the most favorable construction of the evidence, and inferences arising therefrom, lead to the conclusion that there was a disputed issue of fact concerning whether H.H. had expressly authorized Latona to hold his medications since H.H. told the police that no one was authorized to possess his medications and Latona did not attach a copy of H.H.’s Durable Power of Attorney for health care to her dismissal motion. The Durable Power of Attorney which was provided by Latona expressly applied to the management of H.H.’s assets, not to the management of his health care. Accordingly, I would reverse.


author: COHEN, J.

text:
    Issac Nicholas Ray FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3240.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Appellant, Issac Nicholas Ray Fleming, appeals the denial of his motion to correct sentencing errors filed pursuant to Florida Rule of Criminal Procedure 3.800. He raises three double jeopardy violations and contests the improper stacking of mandatory minimum sentences. We affirm in part, reverse in part, and remand with instructions.

Fleming and a co-conspirator entered a home, sexually assaulted a female occupant, battered her husband, and stole property. Both Fleming and his co-defendant were armed during the crime, trading turns brandishing a firearm and a knife. Fleming was charged, found guilty, and sentenced to two counts of home-invasion robbery with a firearm; burglary of a dwelling with an assault or battery with a firearm; sexual battery with a deadly weapon, a firearm; kidnapping with intent to inflict bodily harm or terrorize with a firearm; two counts of aggravated assault with the intent to commit a felony; two counts of aggravated assault with a deadly weapon, a firearm; and battery.

Fleming first argues that double jeopardy precludes the conviction of two counts of home-invasion robbery for entry into one home. A double jeopardy claim based on undisputed facts is reviewed de novo. Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006). There is no dispute Fleming entered only one residence, and both below and on appeal, the State concedes error. A defendant can be convicted of only one home-invasion under the facts of this case. See Bowers v. State, 679 So.2d 340, 341 (Fla. 1st DCA 1996). Accordingly, we reverse one home-invasion robbery conviction.

Next, Fleming contends that his convictions for both home-invasion robbery and burglary of a dwelling with an assault, arising from the same incident, violate double jeopardy. Again, the State properly concedes error. See generally Mendez v. State, 798 So.2d 749 (Fla. 5th DCA 2001) (stating convictions of home invasion robbery and burglary of dwelling with assault arising from same incident violate double jeopardy). We vacate the burglary of a dwelling with an assault or battery conviction.

Further, Fleming challenges two of the four convictions of aggravated assault. He argues the second set of convictions of aggravated assault against the same two victims violates double jeopardy because it arose from the same criminal episode. We agree.

Fleming was convicted of two counts of aggravated assault with the intent to commit a felony for entering the victim’s bedroom with the intent to rob her and her husband of certain items while threatening them with a gun and knife. Fleming moved his victims to a nearby room, stole another item, then moved them to a third room within the house. He was convicted of two additional counts of aggravated assault with a firearm for threatening them with a gun as he exited the third room.

“The proper analysis to determine whether offenses arise from the same criminal episode requires consideration of the following factors: 1) whether separate victims are involved; 2) whether the crimes occurred in separate locations; and 3) whether there has been a temporal break between the incidents.” Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001) (citations omitted). If multiple convictions of the same charge arise from the same episode, only one may stand. Id.

Here, it is undisputed the same victims were involved in both sets of offenses. The crimes occurred in the same location, the house, albeit in different rooms. See, e.g., State v. Ames, 467 So.2d 994, 995-96 (Fla.1985) (holding defendant’s offenses occurred in same location when he broke into house, robbed woman in one room, and raped her in another). Further, eye-witness and victim accounts elicited at trial suggest the crime was one continuous sequence of events spanning several minutes. The record does not suggest Fleming had a temporal break to “pause, reflect and form a new criminal intent for each offense....” Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004); see Cambell v. State, 37 So.3d 948, 950 (Fla. 5th DCA 2010) (stating the intent inherent in the assault statutes is to “make a threat to do violence.”). Accordingly, the second set of aggravated assault offenses arose from the same criminal episode and violates double jeopardy. We vacate the lesser offenses, the convictions for aggravated assault with the intent to commit a felony. See State v. Barton, 523 So.2d 152, 153 (Fla.1988).

Finally, Fleming contends the trial court erred by imposing consecutive mandatory minimum sentences for his convictions of armed sexual battery (count VII), armed kidnapping (count VIII), and the remaining two counts of aggravated assault (counts XI and XII), because no firearm was discharged during the crime. We agree with the State’s concession of error as it relates to the consecutive mandatory minimum sentences imposed on the armed kidnapping and aggravated assault charges. Because the firearm was not discharged during the course of the criminal episode, consecutive mandatory minimum sentences as to the armed kidnapping and two aggravated assault charges were impermissible. We remand for imposition of concurrent mandatory minimum sentences on those counts. See Swanigan v. State, 57 So.3d 989, 990 (Fla. 5th DCA 2011).

We do not agree with the State’s concession of error that the trial court improperly stacked the sentence for sexual battery with a deadly weapon, a firearm. A trial court has the authority to stack mandatory minimum sentences, even when the offenses arose from the same criminal episode, when the nature of the crimes subjected the defendant to “the imposition of mandatory minimum sentences under two separate and distinct statutes.” McDonald v. State, 564 So.2d 523, 525 (Fla. 1st DCA 1990) (affirming consecutive mandatory minimum terms imposed for cocaine trafficking (under § 893.135(1)) and aggravated assault with a firearm (under § 775.087(2))); see also Downs v. State, 616 So.2d 444, 446 (Fla.1993) (citing McDonald ). In Valentin v. State, 963 So.2d 317, 319 (Fla. 5th DCA 2007), this Court examined the stacking of mandatory minimum terms imposed for a capital and firearm offense in Downs, and explained that such stacking was proper because the statutory bases for the mandatory minimum terms derived from “different statutes addressing different evils.”

The rule from McDonald, explained by this Court in Valentin, applies in the instant case. Fleming’s sexual battery while armed offense was subject to a mandatory minimum sentence under two separate and distinct statutes addressing different evils: section 794.0115(2), Florida Statutes (2008) (the “Dangerous Sexual Felony Offender Act”), and section 775.087(2)(a)l.b., (the “10-20-Life” statute).

Section 794.0115(2)(b) provides:

(2) Any person who is convicted of a violation of [a sexual battery under section 794.011(3) ] ... which offense the person committed when he or she was 18 years of age or older, and the person:
(b) Used or threatened to use a deadly weapon during the commission of the offense;
is a dangerous sexual felony offender, who must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment.

Further, subsection (6) reads:

Notwithstanding s. 775.082(3), chapter 958, any other law, or any interpretation or construction thereof, a person subject to sentencing under this section must be sentenced to the mandatory term of imprisonment provided under this section.

Accordingly, section 794.0115(6) requires a qualified defendant to be subject to sentencing under that statute rather than any other statute. Abrams v. State, 971 So.2d 1033, 1035 (Fla. 4th DCA 2008) (“So as to make its intention unmistakable, the legislature also provided that this mandatory sentence trumps all other types of sentencing statutes which might yield a lesser sentence”).

The trial court imposed a twenty-five year mandatory minimum term for armed sexual battery under section 794.0115 rather than section 775.087. Consequently, the trial court did not err when it imposed the mandatory minimum sentence on the sexual battery while armed offense consecutive to the other section 775.087 offenses.

AFFIRMED in part, REVERSED in part, and REMANDED.

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

      . After Fleming filed a notice of appeal, he filed a motion to correct sentencing error pending appeal. See Fla. R.Crim. P. 3.800(b)(2). The State conceded error on all but one issue. The trial court scheduled an evidentiary hearing outside the sixty-day time frame within which to render an order, we assume inadvertently. After the sixtieth day, the motion was effectively denied. Fla. R.Crim. P. 3.800(b)(1)(B). Once the error was discovered, the hearing was cancelled.

      .We recognize a double jeopardy violation is not a sentencing error contemplated by Florida Rule of Criminal Procedure 3.800(b). See Jackson v. State, 983 So.2d 562, 572-74 (Fla. 2008) (opining sentencing error is error in sentence itself). A double jeopardy violation, however, does not have to be preserved for appeal because it is fundamental error and can be raised for the first time on appeal. See State v. Johnson, 483 So.2d 420, 422 (Fla.1986).

      . Although not relevant to the issues raised by Fleming, the underlying motive for the crimes committed suggests a jealous lover conspired to exact revenge upon the sexual assault victim and her husband. The facts of the case are egregious; the victim was sexually assaulted by both Fleming and his co-defendant while the victim’s husband was forced to watch.

      . Both offenses are life felonies.

      . In Valentin, this Court clarified that the rule from McDonald and Downs does not apply when the primary evil addressed by the separate, applicable statutes involves the use of a firearm. 963 So.2d at 319. Nevertheless, statutes may still be considered separate and distinct even when use of a firearm is a common element to both statutes. See Mosely v. State, 679 So.2d 287, 290 (Fla. 1st DCA 1996) (affirming consecutive mandatory minimum terms imposed for possession of a short-barreled shotgun (under § 790.221) and other offenses imposed for use of a firearm during the commission of those felonies (under § 775.087(2))). The key is determining whether the different statutes address different evils.
      Still, in this case, section 794.0115(2), Florida Statutes (2008), would have applied even if Fleming did not use a firearm. By forcing the husband to watch Fleming sexually assault the victim, Fleming "[vjictimized more than one person during the course of the criminal episode applicable to the offense[.]” § 794.0115(2)(c). See Wright v. State, 65 So.3d 1092 (Fla. 3d DCA 2011).


text:
    Jim L. McGAHEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5699.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2011.
    Jim L. McGahee, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

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


text:
    Lori L. BENNETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5990.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2011.
    Lori L. Bennett, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: JACOBUS, J.

text:
    STATE of Florida, Appellant, v. Robert W. KIRCHHOF, Appellee.
    No. 5D10-1688.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    Paula C. Coffman, Orlando, for Appellee.
   JACOBUS, J.

The State of Florida timely appeals the lower court’s order dismissing the information charging Robert Kirchhof with felony DUI based on the expiration of the statute of limitations. We find no error below and affirm.

On May 1, 2004, Kirchhof was arrested for misdemeanor DUI. He entered a plea to that charge, and a judgment and sentence were entered in accordance with the plea agreement. Kirchhof subsequently moved to withdraw his plea, claiming it was involuntary. The trial court granted his motion and vacated the judgment and sentence. On February 5, 2010, the State filed an information charging Kirchhof with felony DUI based on the same May 1, 2004 event that resulted in his misdemean- or charge. Thereafter, Kirchhof filed a motion to dismiss the information based on the expiration of the three-year statute of limitations period applicable to third-degree felonies. The court agreed with Kirchhof and dismissed the felony DUI charge based on the expiration of the statute of limitations period.

On appeal, the State contends that because Kirchhof successfully moved to withdraw his plea, he should be returned to the position he was in before he entered his plea. The State further argues that the limitations period was tolled from the time Kirchhof entered his plea to the time his conviction was vacated. We disagree.

In the instant case, the limitations period for the felony DUI case expired May 1, 2007. Thus the filing of the information in 2010 was well beyond the limitations period. Moreover, by setting aside the plea, the information charging misdemeanor DUI was revived. See Geiger v. State, 532 So.2d 1298, 1301 (Fla. 2d DCA 1988) (upon withdrawal of plea the original information is reinstated making the commencement of the prosecution within the limitation period). However, the State never charged Kirchhof with felony DUI within the statute of limitations period, which is a separate crime from misdemeanor DUI, requiring proof of an additional element. See State v. Woodruff, 676 So.2d 975, 977 (Fla.1996). Because Kirchhof was never charged with felony DUI in the initial proceeding and was subsequently charged beyond the limitations period, the trial court properly dismissed the information.

AFFIRMED.

GRIFFIN and EVANDER, JJ„ concur.

      . § 775.15(2)(b), Fla. Stat.


author: EVANDER, J.

text:
    Major McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1689.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.

      James Dickson Crock, of James Dickson Crock, P.A., Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Major McCray appeals his conviction for conspiracy to traffic in cocaine. He raises several issues on appeal, only one of which merits discussion.

McCray was charged by an information filed by the Office of the Statewide Prosecutor (OSP). OSP has the authority to prosecute an offense when any such offense is occurring, or has occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more judicial circuits. See Art. IV, § 4(b), Fla. Const.; § 16.56(l)(a), Fla. Stat. (2009).

McCray argues that the State failed to present evidence that his alleged criminal act occurred in, or was connected with, a criminal conspiracy affecting more than one judicial circuit. Therefore, according to McCray, his conviction is void because OSP’s lack of authority to prosecute the instant case divested the trial court of subject matter jurisdiction. This argument was recently rejected by the Florida Supreme Court in Carbajal v. State, 75 So.3d 258 (Fla.2011). There, our supreme court held that even assuming that OSP, in fact, lacked authority to prosecute the case, such a defect in the information would not divest the circuit court of jurisdiction over the felony offenses brought against the defendant. Id. at S629. The court went on to state: “We continue to hold that a conviction resulting from an information signed by a state officer lacking authority is not void ab initio but is, at most, voidable upon timely challenge.” Id. at S630.

In the instant case, no timely challenge was made to the information or to OSP’s authority to prosecute the case against McCray.

AFFIRMED.

TORPY and LAWSON, JJ., concur.


text:
    Jestin CLEVELAND, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3435.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We conclude that the trial court did not abuse its discretion in denying Cleveland’s motion for mistrial and, accordingly, affirm his convictions. However, as the State concedes, the sentencing order erroneously fails to award Cleveland credit for time served on Counts I (aggravated stalking with a credible threat) and IV (retaliating against a witness by threatening bodily harm). On remand, the trial court shall correct this error.

AFFIRMED in part; REVERSED in part; REMANDED for Correction of Sentencing Order.

ORFINGER, C.J., MONACO, and EVANDER, JJ., concur.

      . The trial court did attempt to correct this sentencing error, but did so after the sixty day time limit set forth in Florida Rule of Criminal Procedure 3.800 had expired. Therefore, the order purporting to grant Cleveland's motion to correct sentence was a nullity. See McGill v. State, 878 So.2d 1270, 1271 (Fla. 5th DCA 2004).


text:
    Robert E. HUBBARD, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3204.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.
    Robert E. Hubbard, Daytona Beach, Pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal as to the order of June 28, 2008, is denied.

The petition for belated appeal as to the order of December 9, 2009, is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order rendered December 9, 2009, barring Hubbard from filing any future pro se pleadings in case number 90-6616-CFAES, in the Circuit Court in and for Volusia County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION DENIED as to the June 23, 2008, order; GRANTED as to the December 9, 2009, order.

GRIFFIN, PALMER and EVANDER, JJ., concur.


text:
    Walter E. WHYNOT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3255.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.
    Walter Whynot, Malone, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order granting in part and denying in part, Defendant’s motion to correct sentence in Case No. 05-2004-CF-036389-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, PALMER and LAWSON, JJ., concur.


text:
    Anquon Travon NORFLEET, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3524.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.
    Anquon Travon Norfleet, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal, filed October 17, 2011, 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. 10-CF-007123-C-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

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


text:
    Tyrone Donte GLADDEN, Petitioner, v. STATE Of Florida, Respondent.
    No. 5D11-3694.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.
    Robert Wesley, Public Defender and Linna L. Gonzalez-Suarez, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance 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. CF11-2433-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

MONACO, LAWSON and EVANDER, JJ., concur.


text:
    Solomon Tsalach YISRAEL, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-5962.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2011.
    Solomon Tsalach Yisrael, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jonathan P. Sanford, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

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


text:
    John P. CARROLL, Appellant, v. WATERSOUND BEACH COMMUNITY ASSOCIATION, INC., Watercolor Community Association, Inc., Sandra Matteson, David Lilienthal, Mary Joule, Ronald Voelker, John Doe, Jane Doe, and Other Unknown Conspirators, Appellees.
    No. 1D11-4722.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2011.
    John P. Carroll, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

DISMISSED. Cardiothoracic and Vascular Surgery, P.A. v. West Florida Regional Medical Center, 993 So.2d 1060 (Fla. 1st DCA 2008); Hickox v. Taylor, 933 So.2d 675 (Fla. 1st DCA 2006).

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Richard A. SHELDON, D.C., a/a/o, Donald Jackson, Jr., Appellee.
    No. 1D11-4651.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2011.

      Douglas H. Stein, Seipp & Flick, Miami, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See, e.g., Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994); Dep’t of Health, Bd. of Medicine v. Thomas, 854 So.2d 259 (Fla. 1st DCA 2003).

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    Dewayne Keyshon CALHOUN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3235.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2011.
    Dewayne Keyshon Calhoun, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Terence LEONARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-279.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2011.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Stimus v. State, 995 So.2d 1149 (Fla. 5th DCA 2008).

MONACO, LAWSON and JACOBUS, JJ., concur.