author: SAWAYA, J.

text:
    Michael Eugene MOUNT, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1908.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2012.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Michael Mount appeals the final orders of judgment and sentence and the order denying his motion to correct sentence. The only issue raised in this appeal is whether Mount, who was arrested in Marion County on a warrant from Citrus County and also arrested for unrelated crimes committed in Marion County, is entitled to credit for the time he served in the Marion County jail awaiting resolution of the Marion County charges.

An arrest warrant was issued in Citrus County for the arrest of Mount on charges of grand theft. Pursuant to that warrant, Mount was arrested in Marion County. The arresting officer searched Mount and found illegal drugs on his person. Mount was then arrested for possession of illegal drugs and transported to the Marion County jail. Mount entered a plea to the drug charge in Marion County and was sentenced to credit time served, which was 101 days. He was then released from the Marion County Jail and transported to Citrus County to resolve the pending theft charge. After his arrival in Citrus County, Mount entered a plea pursuant to a plea agreement that provided for a sentence of 24 months in prison with credit for time served. The amount of credit was not stated in the plea agreement. When he entered his plea, Mount was sentenced to the 24-month prison term and given credit for 75 days he spent in the Citrus County jail. The transcript of the sentencing hearing clearly reveals that the trial court did not order the Citrus County sentence to be concurrent to the Marion County sentence. The written sentencing order provides that the sentence shall run concurrent to “any active sentence being served.” Mount subsequently filed a motion to correct sentence, claiming that he was entitled to an additional credit of 101 days for the time he spent in the Marion County jail awaiting resolution of the drug charges.

The trial court denied the request for an additional credit of 101 days, concluding that when Mount was taken into custody pursuant to the Citrus County warrant, a detainer was placed on his release. The State concedes that Mount was arrested pursuant to the Citrus County warrant, but correctly argues that Mount is not entitled to the additional credit because his sentence in Citrus County was not ordered to be served concurrently with the Marion County sentence, which had been served and completed well before the Citrus County sentence was imposed.

Section 921.161(1), Florida Statutes (2011), concerns credit for time served and provides, “A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.” In Daniels v. State, 491 So.2d 543 (Fla.1986), the court held that credit for time served applies differently to concurrent and consecutive sentences, explaining that

when, pursuant to section 921.161(1), a defendant receives pre-sentence jail-time credit on a sentence that is to run concun'ently with other sentences, those sentences must also reflect the credit for time served_We distinguish this situation from one in which the defendant does not receive concurrent sentences on multiple charges; in such a case the defendant “is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.”

Id. at 545 (quoting Martin v. State, 452 So.2d 938, 938-39 (Fla. 2d DCA 1984)). Thus, “when a defendant receives concurrent sentences, his jail time is credited toward all concurrent sentences, but when a defendant does not receive concurrent sentences, jail time may be credited toward only one sentence.” Ransone v. State, 48 So.3d 692, 694 (Fla.2010).

Section 921.16(1), Florida Statutes (2011), explains when sentences are to run concurrently:

A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affida- ' vits shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively. Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently.

The court in Ransone further explained, “Pursuant to section 921.16(1), unless the trial court directs that sentences for separately charged offenses run concurrently, those sentences are consecutive.” 48 So.3d at 694.

The facts in Ransone are strikingly similar to the instant case. There, the defendant was convicted of grand theft in Bro-ward County and placed on community control. A warrant for violation of community control subsequently issued from Broward County. The defendant was arrested in Dade County for several crimes committed in that county and was transported to the Dade County jail where he awaited resolution of those charges. The defendant claimed he was also arrested pursuant to the Broward County warrant. The defendant remained incarcerated in the Dade County jail until the Dade County charges were resolved with a plea and a sentence of credit time served. He was then released from the Dade County jail and transported to the Broward County jail. His community control was subsequently revoked and he was sentenced to five years in prison with 85 days credit for time served, which did not include credit for the time he spent in the Dade County jail. The defendant filed a post-conviction motion claiming entitlement to the extra credit for time served and the trial court denied that motion, concluding that the Dade County authorities had merely placed a hold on the defendant. The defendant filed another post-conviction motion, which the trial court denied because it was successive and because the warrant for arrest had not been executed. He appealed to the Fourth District, which affirmed the denial of the extra credit. The court explained that it did not matter whether the defendant was arrested in Dade County pursuant to the Broward County warrant because his Broward County sentence was consecutive to the Dade County sentence. Therefore, the Fourth District held that pursuant to Daniels, he was not entitled to the extra credit. Ransone v. State, 20 So.3d 445 (Fla. 4th DCA 2009). The Fourth District further held that the trial court did not order a concurrent sentence, explaining:

The court did not have a reason to do so because the Miami-Dade sentences had been completed. Nevertheless, because this case was charged separately from the Miami-Dade cases, by operation of statute, the Broward sentence was consecutive to the Miami-Dade sentences. § 921.16(1), Fla. Stat. (2004) (providing: “Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently”). See also State v. Matthews, 891 So.2d 479, 481 (Fla.2004) (explaining that, pursuant to section 921.16(1), because the trial court did not specify that a sentence was concurrent, a sentence for violation of probation was automatically structured to run consecutive to the sentence on an unrelated new offense committed while defendant was on probation). This conclusion is buttressed by common sense in that the Miami-Dade “time served” sentences were completed before the sentence was imposed in this unrelated case.

Id. at 447-48.

The Florida Supreme Court approved the Fourth District’s decision, concluding that “the Fourth District properly applied our precedent in Daniels and the statutory requirements of section 921.16(1).” Ransone, 48 So.3d at 694; see also Ponce v. State, 24 So.3d 724, 725-26 (Fla. 4th DCA 2009) (“With respect to the period from November 29, 2006, to July 25, 2007, the defendant is not entitled to credit even if he can establish that he was arrested in the Miami-Dade jail on the Broward VOCC warrant on November 29, 2006. That is because, according to his own allegations, he also was in custody for his Miami-Dade charges during that period, and his Broward sentence was not made to run concurrent with any sentence which could have been imposed under his Miami-Dade charges.”).

Here, similar to Ransone, the trial court in Citrus County did not order the Citrus County sentence to be served concurrently with the Marion County sentence. It had no reason to do so because the Marion County sentence had been completely served well before Mount was transported to Citrus County, where he subsequently entered his plea and sentence was imposed. See generally Black’s Law Dictionary 1367 (7th ed. 1999) (defining concurrent sentences as “[t]wo or more sentences of jail time to be served simultaneously”). The trial court in Citrus County did provide in the written sentencing order that the sentence was to be served concurrently to “any active sentence being served,” but the completed Marion County sentence was not active and it was not being served. Because the Citrus County sentence was not concurrent to the Marion County sentence, the sentences are consecutive and Mount is not entitled to have the credit he received toward his Marion County sentence also credited toward his Citrus County sentence.

Like the trial court in Ransone, the trial court in the instant case concluded that the request for the extra credit should be denied, erroneously believing that the hold was pursuant to a detainer. Moreover, similar to Ransone, the trial court in the instant case did not exercise its discretion to award the credit toward the consecutive sentence although it had the discretionary authority to do so. Ransone, 20 So.3d at 445. Because the trial court arrived at the correct conclusion through erroneous reasoning, the tipsy coachman rule allows us to affirm despite the error. Ransone, 20 So.3d at 446 (applying the tipsy coachman rule to “affirm for reasons other than those ... relied on by the trial court in denying the motion”).

AFFIRMED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Grace BURTON, Dashean Johnson, Bernard Williams, Jamie Strahan, May Martin, Albert Maddox, Andrea Maes, Brandon Cintron, Angela Davis, Anthony Stewart, Tammy Howard-Cassi-dy, Randell Nolen, Appellants, v. STATE of Florida, Appellee.
    Case Nos. 5D12-1394, 5D12-1395, 5D12-1492, 5D12-1580, 5D12-1581, 5D12-1583, 5D12-1737, 5D12-1740, 5D12-1836, 5D12-1837, 5D12-1840, 5D12-1841.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    Chad BOND, Jennifer Hood, David Briois, Thelma Williams, Jennifer Shoentube, Bradley Blackmon, Rickie Buitree, Jr., Ann Marie Allen, George Lopez, Bryan Bogle, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-1319, 5D12-1321, 5D12-1322, 5B12-1323, 5D12-1325, 5D12-1326, 5D12-1552, 5D12-1554, 5D12-1555, 5D12-1556.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    Shannon Eugene EBERENZ, Appellant, v. STATE Of Florida, Appellee.
    No. 5D12-1212.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    Searron BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1130.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    Jeffrey Allen DAVIS, Appellant, v. STATE Of Florida, Appellee.
    No. 5D12-1128.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
    TORPY, PALMER, and JACOBUS, JJ„ concur.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1848 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).


text:
    Jose G. PADRO-GUERRERO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1027.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    Quinta Kante WRIGHT, Mark Ivan Rockmore, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D12-905, 5D12-919.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    James WILLIAMS, Tony Wilson, Willie Spivey, Rodney Pruitt, Daniel Land, Christopher Lornitis, Sable Phifer, Carlos Marrero, Charlean Bishop, Travis Robbins, Tommie Dixon, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D12-770, 5D12-938, 5D12-941, 5D12-936, 5D12-939, 5D12-943, 5D12-937, 5D12-940, 5D12-955.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

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

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


text:
    John J. MENDONCA, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-441.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.
    John J. Mendonca, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    Lawrence Robert SCOTT, Claude Burton, Ronald Brown, Natasha Core, Mary Bogart, Pedro Garcia-Torres, Joe C. Burdette, Kela Robinson, Robert Ehni, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D12-686, 5D12-1200, 5D12-1250, 5D12-1251, 5D12-1297, 5D12-1298, 5D12-1299, 5D12-1300, 5D12-1301.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

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

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


text:
    Dwayne Lamar GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1820.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.
    Dwayne Lamar Gordon, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    Jim Earl REGISTER, III, James Raymond Kalb, Tony P. Lawson, Appellant, v. STATE Of Florida, Appellee.
    Nos. 5D12-850, 5D12-1214, 5D12-1217.
    District Court of Appeal of Florida, Fifth District.
    Sept. 18, 2012.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    Jose Sebastian TZOC-CAXAJ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4299.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Jose S. Tzoe-Caxaj, Defuniak Springs, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.32 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    Gene Allen BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3387.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.

      Gene Allen Brown, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Gene Allen Brown (the defendant) appeals an order summarily denying his Rule 3.800(a) motion. We affirm the trial court’s well-reasoned order.

The defendant was charged with (I) Burglary of a Conveyance While Armed and (II) Grand Theft (motor vehicle). Count I, a first degree felony punishable by life, section 810.02(2)(b), Florida Statutes (2001), alleged that the defendant “was or became armed within the conveyance, with a knife, an explosive or dangerous weapon.” Following a jury trial, the defendant was found guilty as charged and sentenced on Count I to life in prison as a prison releasee reoffender (PRR).

This court affirmed the defendant’s conviction and sentence. In the instant Rule 3.800(a) motion, the defendant raised three grounds which he claimed subjected him to an illegal sentence. First, the defendant asserted that a PRR sentence could not be imposed on a conviction for burglary of a conveyance. However, the defendant was not convicted of burglary of a conveyance; rather, he was convicted of burglary of a conveyance while armed. Although mere burglary of a conveyance is not an enumerated offense for purposes of sentencing as a PRR, section 775.082(9)(a)l, Florida Statutes (2001), armed burglary is included in the enumerated offenses that qualify a defendant as a PRR. § 775.082(9)(a)l.p„ Fla. Stat. (2001). Because armed burglary of a conveyance is a first degree felony punishable by life, the life sentence is legal. § 775.082(9)(a)3.a, Fla. Stat. (2001); McDonald v. State, 957 So.2d 605, 612 (Fla.2007); see Young v. State, 54 So.3d 1022 (Fla. 2d DCA 2011) (holding that defendant’s PRR sentence for armed burglary of a conveyance is legal).

Second, the defendant argues that the PRR statute does not apply to his offense because he did not use the knife during the course of the burglary of a conveyance to threaten bodily harm. Third, he argues that the knife that he possessed during the burglary does not qualify as a “dangerous weapon” for purposes of armed burglary.

The state pointed out in its response to the defendant’s Motion to Correct Illegal Sentence that the grounds raised by the defendant are not cognizable in a Rule 3.800(a) motion. Wright v. State, 911 So.2d 81 (Fla.2005). Wright held that the legality of a sentence can be attacked on a Rule 3.800(a) motion only on certain specific grounds, none of which were raised in the defendant’s motion. Essentially, in this motion the defendant challenges his conviction, rather than his sentence. He does not argue that his conviction for armed burglary does not qualify him for PRR sentencing. He argues that he should not have been convicted of armed burglary of a conveyance, but instead should have been convicted only of burglary of a conveyance. The defendant has shown no legal or factual basis to support his claim that his sentence is illegal.

Accordingly, we affirm the trial court’s order denying the defendant’s Motion to Correct Illegal sentence in all respects.

Affirmed.

WARNER, TAYLOR and LEVINE, JJ., concur.


text:
    Kenneth WINGFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4074.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Kenneth Wingfield, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

MAY, C.J., WARNER and CIKLIN, JJ., concur.


text:
    Byron K. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4085.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Byron K. Thomas, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Billy CLEVELAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4087.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Billy Cleveland, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

GROSS, HAZOURI and GERBER, JJ., concur.


text:
    Richard Leroy WELCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4088.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Richard L. Welch, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Leroy Donald HILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4108.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Leroy D. Hill, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.Bd 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

CIKLIN, LEVINE and CONNER, JJ., concur.


text:
    Ernest C. WYATT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4109.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Ernest C. Wyatt, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

DAMOORGIAN, GERBER and LEVINE, JJ., concur.


text:
    Scott Thomas BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4110.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Scott Thomas Brown, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, STEVENSON and GROSS, JJ., concur.


text:
    Willie CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4124.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.

      Willie Cunningham, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    James LOWERY, Appellant, v. STATE Of Florida, Appellee.
    No. 4D11-4254.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GERBER, JJ., and McMANUS, F. SHIELDS, Associate Judge, concur.


text:
    Stephani CUMMINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4286.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Rehearing Denied Oct. 31, 2012.
    Stephani Cummins, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ives v. State, 993 So.2d 117, 120 (Fla. 4th DCA 2008) (citing Bover v. State, 797 So.2d 1246, 1251 (Fla.2001)).

WARNER, TAYLOR and CIKLIN, JJ., concur.


text:
    Robert E. NETTLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4672.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Robert E. Nettles, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


author: DAMOORGIAN, J.

text:
    K.P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1828.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Antony P. Ryan, Regional Counsel, and Joyce R. Cohen, Assistant Regional Counsel of the Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

K.P., a minor, appeals the trial court’s disposition order adjudicating her delinquent and sentencing her to a moderate risk juvenile commitment center after she pled guilty to grand theft. We reverse and remand for a new disposition hearing because, although the trial court ordered a pre-disposition psychiatric evaluation of K.P., it entered its disposition order before the psychiatric evaluation report was available.

It is well established that courts must strictly comply with the statutory procedures surrounding a juvenile disposition hearing. K.D. v. State, 911 So.2d 885, 886 (Fla. 1st DCA 2005). Section 985.43(2) mandates that the court “consider the child’s entire assessment and predisposition report” prior to making a final disposition of the case. § 985.43(2), Fla. Stat. (2011). Here, the trial court failed to strictly comply with section 985.43 when it entered its disposition order before it was able to consider the results of KP.’s psychiatric evaluation over the objection of defense counsel. This was reversible error. See K.D., 911 So.2d at 886 (holding that the trial court committed reversible error by continuing with a disposition despite the fact that the comprehensive evaluation report was not yet complete); J.E.W. v. State, 672 So.2d 72, 73-74 (Fla. 1st DCA 1996) (reversing partially on the basis that the trial court conducted a disposition hearing while a psychiatric evaluation of the juvenile was still pending).

Reversed and Remanded.

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


text:
    Randy MALDONADO, Appellant, v. STATE Of Florida, Appellee.
    No. 4D11-4692.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Randy Maldonado, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

HAZOURI, DAMOORGIAN and GERBER, JJ., concur.


text:
    Larry MEDLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4693.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.

      Larry Medlock, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Kurtis BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4694.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Kurtis Barnes, Quincy, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, HAZOURI and CONNER, JJ., concur.


text:
    Andrew BROGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4706.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Andrew Brogan, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, HAZOURI and CIKLIN, JJ., concur.


text:
    Jose W. RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4309.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Jose W. Rodriguez, Fort Lauderdale, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

TAYLOR, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Tiquan V. DONALDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4376.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GERBER, JJ., and McMANUS, F. SHIELDS, Associate Judge, concur.


text:
    Derrick PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4383.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GERBER, JJ., and McMANUS, F. SHIELDS, Associate Judge, concur.


text:
    Zwaquan HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4516.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Zwaquan Harris, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

CIKLIN, GERBER and LEVINE, JJ., concur.


text:
    Jorge PENA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4518.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Jorge Pena, Bristol, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Robert D. MULLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4523.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.

      Robert D. Mullís, East Palatka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Jimmy LEON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4529.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Jimmy Leon, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, TAYLOR and LEVINE, JJ., concur.


text:
    Todd W. GUILDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4531.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Todd M. Guilder, Avon Park, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

WARNER, TAYLOR and HAZOURI, JJ., concur.


text:
    Brandon R. HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4626.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GERBER, JJ., and MCMANUS, F. SHIELDS, Associate Judge, concur.


text:
    Eduardo HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4669.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Ricardo Corona of The Corona Law Firm, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, TAYLOR and LEVINE, JJ., concur.


text:
    Yanet Sabrates LABRADA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4670.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.

      Ricardo Corona of The Corona Law Firm, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Derrick LAMB, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4671.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Derrick Lamb, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

HAZOURI, CIKLIN and CONNER, JJ., concur.


text:
    Derrick REED, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4297.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Derrick Reed, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    William D. ABBATE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4673.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    William D. Abbate, Ft. Pierce, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    James FAIRO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4302.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    James Fairo, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Walker DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2179.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2012.
    Walker Davis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED without prejudice as to the appellant’s right to file a petition for a belated appeal.

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


text:
    Jerome FELDMAN, individually and as Trustee, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D12-1070.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2012.
    Robert S. Glazier; Lapin & Leichtling and Adam Leichtling, Miami, for appellants.
    Methe & Rockenbach and Kara Berard Rockenbach West Palm Beach; Wads-worth Huott and Laurie-Ann N. Sharpe, for appellee.
    Before SHEPHERD, SUAREZ and SALTER, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based on the appellee’s commendable confession of error, we reverse the final summary judgment and remand this case to the trial court for further proceedings.

Reversed and remanded.


author: GRIFFIN, J.

text:
    Arthur Lee JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3104.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2012.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Arthur Lee Jackson [“Jackson”] appeals his judgment and sentence for possession of a firearm by a convicted felon and for carrying a concealed firearm. Jackson argues that the trial court erred by denying his motion to suppress and by failing to conform the written sentence for possession of a firearm by a convicted felon with its oral pronouncement of sentence.

There was no error in the denial of the motion to suppress. The State concedes the sentencing error. Accordingly, we vacate the sentence and remand for correction.

AFFIRMED; SENTENCE VACATED and REMANDED.

TORPY and LAWSON, JJ., concur.


text:
    Talmadge R. CONNER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1378.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2012.
    Talmadge R. Conner, Jr., Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the summary denial of Conner’s motion to withdraw plea because his claims are conclusively refuted by the record. See Henry v. State, 920 So.2d 1245, 1246 (Fla. 5th DCA 2006) (“Defendants are bound by the statements made by them under oath; they are not entitled to have them plea set aside by later claiming the plea was involuntary based on their allegedly perjured testimony.”); Iacono v. State, 930 So.2d 829 (Fla. 4th DCA 2006) (defendant’s claims that he was under influence of psychotropic medication at time of plea, thereby rendering plea involuntary, conclusively refuted by plea colloquy).

AFFIRMED.

GRIFFIN, EVANDER and BERGER, JJ., concur.


text:
    Fernando CRUZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1946.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2012.
    Robert Wesley, Public Defender, and Daniel S. Spencer, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The Petition for Writ of Certiorari is denied without prejudice to the Petitioner’s right to refile a motion to dismiss. See Tiburcio v. State, 95 So.3d 1037 (Fla. 5th DCA 2012) (rejecting as premature a claim that charges should be dismissed “because five years have not elapsed since Petitioner was found incompetent”).

PETITION DENIED.

PALMER, LAWSON and EVANDER, JJ., concur.


text:
    Renondo RAINEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1965.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2012.
    Renondo Rainey, DeFuniak Springs, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the lower court’s order summarily denying his rule 3.850 motion. We affirm the order except as it pertains to the challenge based upon a misrepresentation by counsel regarding jail credit. Apparently, the lower court thought that Appellant was challenging the jail credit computation. Actually, Appellant was alleging that his trial counsel misinformed him concerning the credit he would receive. Appellant contends that he was told he would receive the full credit from his 2005 case as an offset on his 2010 cases. The State properly concedes error in that the trial judge did not attach records to refute the claim. Accordingly, we reverse and remand this cause for further proceedings.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SAWAYA, TORPY and COHEN, JJ., concur.


text:
    Guytembert GARCON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2945.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2012.
    Guytembert Garcon, Perry, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2011-CF-9258-A, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, SAWAYA, TORPY, JJ., concur.


text:
    William FAIELLA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-3003.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2012.
    William Faiella, Clermont, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no.’s 2009-CF-002466, 2010-CF-000493 and 2010-CF-002530, in the Circuit Court in and for Hernando County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, COHEN, BERGER, JJ., concur.


text:
    Thomas KELSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1207.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2012.

      Thomas Kelsey, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse and remand for the trial court to give the appellant an opportunity to file his claims in a facially sufficient rule 3.850 motion.

In July of 2009, the trial court revoked the appellant’s probation and sentenced him to concurrent terms totaling twenty years’ imprisonment. This Court affirmed in June of 2010. In January of this year the appellant filed the instant motion to correct illegal sentence asserting that his scoresheet was improper. The trial court denied relief because the motion was filed pursuant to Florida Rule of Criminal Procedure 3.800(a), and the sentence could have been imposed absent any error on the scoresheet. See Brooks v. State, 969 So.2d 238 (Fla.2007) (under “could-have-been-imposed” test, if sentence could have been imposed absent scoresheet error, defendant is not entitled to relief). However, if treated as a motion filed pursuant to rule 3.850, it appears that the appellant would be entitled to relief because the “would-have-been-imposed” test, rather than the “could-have-been imposed” test, would apply. See Brooks v. State, 969 So.2d 238 (Fla.2007). The motion was sworn and, contrary to the trial court’s ruling, would be timely if treated as a rule 3.850 motion as it was filed within two years of the appellant’s judgment and sentence becoming final. See Fla. R. Crim. P. 3.850(b) (motion must be filed within two years of judgment and sentencing becoming final); Jones v. State, 602 So.2d 606, 607 (Fla. 1st DCA 1992) (a judgment becomes final when the appellate proceedings have concluded and a court issues mandate). However, the motion does not otherwise comply with the technical requirements of that rule. Thus, this Court cannot treat the motion as one filed pursuant to rule 3.850. See Burchfield v. State, 907 So.2d 614 (Fla. 1st DCA 2005) (court cannot treat motion filed pursuant to rule 3.800(a) as a 3.850 motion, even though it was timely and sworn, where it does not contain the other required allegations of that rule such as whether appeal was filed, the result, and whether prior postconviction motions have been filed). Although facially insufficient if treated as a rule 3.850 motion, the appellant is entitled to one opportunity to amend. See Spera v. State, 971 So.2d 754 (Fla.2007) (trial court must give defendant one opportunity to amend facially deficient claims). Accordingly, we reverse and remand for the trial court to give the appellant an opportunity to raise his claims of scoresheet error in a facially sufficient rule 3.850 motion.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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

      . The trial court concluded that if raised in a rule 3.850 motion, the claim would require the appellant to be resentenced.


author: TAYLOR, J.

text:
    P.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4096.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2012.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for .appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant challenges his conviction for possession of cannabis, arguing that the trial court erred in refusing to suppress evidence discovered during a search incident to his arrest. Because the officer lacked probable cause to arrest appellant for loitering and prowling, we reverse the denial of appellant’s motion to suppress.

The state filed a juvenile delinquency petition charging appellant with possession of cannabis. The evidence at the hearing on the motion to suppress established the following facts. The police received an anonymous call reporting that two juveniles — a Latin male and a white male— were trying to open back patio doors in a residential community. The caller reported that the white male was wearing a black shirt and black pants and the Latin male was wearing a red shirt and blue jeans. An officer went to the front of the address reported in the call, but did not see anyone. When he came around to the back of the same buildings, he saw appellant come from the bushes onto the sidewalk. Appellant was wearing a red shirt and blue jeans; he matched the caller’s description of the Latin male.

When the officer first saw appellant, appellant was not hiding in the bushes, trying to conceal himself, running or rushing, or looking around. The officer testified that he did not see appellant doing anything illegal, behaving evasively, or trying to open any doors. However, when appellant saw the officer’s marked police car, he initially turned away from the car and started walking back toward the bushes. The officer got out of his car and said, “Wait a minute, I want to talk to you.” Appellant complied and came over to the officer, identified himself, and cooperated with him.

The officer asked appellant if he lived in the neighborhood. Appellant replied that he did not. When the officer asked appellant what he was doing in the neighborhood, appellant responded that he was meeting a friend at the pool. However, appellant was not dressed for swimming, did not have a towel, and did not know the code to the pool’s gate. Appellant admitted to the officer that he was with another juvenile, and he then assisted the officer in finding the other juvenile. The officer arrested appellant for loitering and prowling. During a search incident to the arrest, the officer found cannabis on appellant’s person.

Appellant moved to suppress the cannabis, arguing that there was no reasonable suspicion to stop him and no probable cause to arrest him for loitering and prowling. He thus argued that the subsequent search incident to arrest was illegal and the fruits of that search were inadmissible. The trial court denied appellant’s motion to suppress. Appellant entered a no contest plea to the cannabis charge, reserving the right to appeal the disposi-tive motion.

Appellant first argues that the officer conducted an illegal investigatory stop that was not supported by reasonable suspicion. We need not reach this issue, however, because we agree with appellant’s alternative argument that the officer did not have probable cause to arrest him for loitering and prowling.

The standard of review of a trial court’s ruling on a motion to suppress is mixed. An appellate court is bound by a trial court’s factual findings if they are supported by competent, substantial evidence. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). However, the application of the law to the facts is reviewed de novo. Dixon v. State, 36 So.3d 920, 923 (Fla. 4th DCA 2010).

The crime of loitering and prowling has two elements: (1) the defendant loitered and prowled “in a place, at a time, or in a manner not usual for law-abiding individuals,” and (2) the loitering occurred under “circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” § 856.021(1), Fla. Stat. (2010); Hollingsworth v. State, 991 So.2d 990, 992 (Fla. 4th DCA 2008). Because of its potential for abuse, the loitering statute must be applied with special care. Springfield v. State, 481 So.2d 975, 977 (Fla. 4th DCA 1986). It is not to be used as a “catch-all” provision when there is an insufficient basis for another charge. B.A.A. v. State, 356 So.2d 304, 306 (Fla.1978).

An officer may not base a decision to arrest for loitering and prowling on an anonymous tip. See Simms v. State, 51 So.3d 1264, 1268 (Fla. 2d DCA 2011). Moreover, since the charge is a misdemeanor, “only the officer’s own observations may be considered in determining whether probable cause exists.” Springfield, 481 So.2d at 977. Therefore, both elements of the crime must occur in the officer’s presence. See Lucien v. State, 557 So.2d 918, 919 (Fla. 4th DCA 1990); but see Joseph D. Robinson, A Loitering and Prowling Primer, 71 Fla. B.J. 59, 60 (Nov.1997) (criticizing Luden in circumstances where the state presents testimony of the citizen who observed the defendant’s conduct).

To satisfy the first element, the state must prove that “the defendant engaged in incipient criminal behavior which law-abiding people do not usually engage in due to the time, place, or manner of the conduct involved.” E.C. v. State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999). Such behavior comes close to, but falls short of, the actual commission or attempted commission of a substantive crime. Id. A “vaguely suspicious presence” is insufficient. Mills v. State, 58 So.3d 936, 939 (Fla. 2d DCA 2011). Rather, the defendant’s behavior must point “toward an imminent breach of the peace or threat to public safety.” E.C., 724 So.2d at 1244. Stated another way, there must be a “threat of immediate, future criminal activity.” V.E. v. State, 539 So.2d 1170, 1171 (Fla. 3d DCA 1989) (emphasis added).

To satisfy the second element, the state must demonstrate that the loitering occurred under “circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” § 856.021(1), Fla. Stat. (2010). “Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object.” § 856.021(2), Fla. Stat. (2010).

If after being confronted by an officer, the defendant “produces credible and reliable identification and complies with the orders of the law enforcement officer necessary to remove the threat to the public safety ... the charge under this statute can no longer properly be made.” State v. Ecker, 311 So.2d 104, 110 (Fla.1975). However, “[t]he failure to provide identification or a reasonable explanation for the questioned activity are not elements of the crime.” Luden, 557 So.2d at 919.

“[T]he offense of loitering and prowling must be completed prior to any police action.” E.C., 724 So.2d at 1245. And because flight from police comes after the officers’ presence is made known, flight alone is insufficient to satisfy the elements of loitering and prowling. See Hunter v. State, 32 So.3d 170,175 (Fla. 4th DCA 2010) (“Although the defendants both fled toward their residence when the officers announced their presence, this flight does not retroactively supply the elements that an officer must observe to satisfy the requirements of loitering and prowling.”).

Here, the state did not meet its burden for either element. First, because the officer was investigating an anonymous tip, any information in the tip cannot support a loitering and prowling charge without independent corroboration. An officer must personally observe any behavior supporting the charge, and the offense must be completed prior to any police action. The officer in this case did not observe appellant attempting to open back patio doors. Thus, in determining whether there was probable cause, we may consider only the officer’s personal observations that appellant (1) walked onto a sidewalk from some bushes in the afternoon, and (2) turned around upon seeing the officer.

The first element requires proof of unusual conduct indicating incipient criminal activity. When the officer first saw appellant, appellant was not hiding in the bushes, trying to conceal himself, or running. Appellant’s presence emerging from bushes and onto the sidewalk was, at most, vaguely suspicious. However, that vaguely suspicious act, without more, does not come close to the commission or attempted commission of a crime, nor does it indicate an imminent breach of the peace or threat to public safety. See In Interest of O.W., 423 So.2d 1029, 1029-30 (Fla. 4th DCA 1982) (where an officer heard a noise in some nearby bushes and saw the juvenile defendant run through a field, the evidence was insufficient to support the defendant’s adjudication of delinquency for loitering an prowling, even though the defendant kept running after the officer called to him); Woody v. State, 581 So.2d 966, 967 (Fla. 2d DCA 1991) (no probable cause to arrest defendant for loitering and prowling where defendant fled at the sight of police and hid in the bushes; officer’s concern for the safety of persons or property upon seeing appellant hiding in bushes “was not supported by any articulable facts which could reasonably warrant such a concern” and “there was nothing to suggest any independent criminal activity afoot”); Simms, 51 So.3d at 1266-68 (no probable cause to arrest suspect for loitering and prowling where officers received an anonymous tip at 10:30 p.m. on Halloween stating that a thin, dark-haired, six-foot-tall man wearing a flannel shirt was trying to open car doors in a particular block of a residential area and the officers found the suspect in the area; although officers indicated that the suspect appear to “just pop up” from between two cars, he neither fled nor refused to identify himself, so it was not reasonable for officers to believe he posed an imminent threat to persons or property).

The Mills case is also instructive. In Mills, the defendant walked out from behind a closed business and turned around to walk back behind it when he saw the police. 58 So.3d at 938. The court held that Mills’s action “did not come close to the actual commission or attempted commission of a substantive crime. Nor did it suggest that a breach of the peace was imminent.” Id. at 940.

Similarly, here, appellant’s act of walking from the bushes and turning around upon seeing the police did not come close to the commission or attempted commission of a crime. The present case is distinguishable from situations where this court has found that a defendant engaged in incipient criminal behavior which lawr abiding people do not usually engage in due to the time, place, or manner of the conduct involved. See Battle v. State, 868 So.2d 587, 587-89 (Fla. 4th DCA 2004) (lurking in the dark at 2:15 a.m. in the hedges between two residences constituted unusual activity where the officer recognized the defendant and knew that he resided elsewhere); see also S.J. v. State, 50 So.3d 102, 104-05 (Fla. 4th DCA 2010) (officer had probable cause to arrest juvenile for loitering and prowling where the officer observed the defendant and another boy around 1:00 a.m. in a hospital parking lot which recently had been plagued by vehicle break-ins, the officer saw the boys attempting to hide from an approaching security van, and the boys claimed they were looking for a drink of water, but were standing near a dumpster). Accordingly, the state failed to show that appellant’s conduct before being stopped by the officer satisfied the first element of loitering and prowling.

The second element requires proof of alarm or immediate concern for public safety. Here, appellant did not take flight, refuse to identify himself, or conceal himself. Appellant’s simple act of walking in the opposite direction from police upon seeing the officer did not constitute “flight.” See Lee v. State, 868 So.2d 577, 581-82 (Fla. 4th DCA 2004) (concluding that dispersing or walking quickly away from the scene upon the arrival of law enforcement did not constitute evidence of flight or “headlong flight”). Further, although appellant initially attempted to walk back toward the bushes, appellant immediately complied with the officer’s instruction to wait and then identified himself. Appellant even assisted the officer in locating the other juvenile who was with appellant. Moreover, because there was no alarm that appellant needed to dispel, any suspicion created by appellant’s unsatisfactory explanation that he was going to the pool is irrelevant in the probable cause determination. See Rucker v. State, 921 So.2d 857, 860 (Fla. 2d DCA 2006) (“[A]ny suspicion created by Mr. Rucker’s allegedly unsatisfactory answers to the deputies’ questions is irrelevant in the probable cause determination because there was no alarm that Mr. Rucker needed to dispel.”).

Because the state failed to show that appellant’s behavior came close to the completion or attempted completion of a substantive crime and that appellant’s behavior pointed to an immediate future threat to public safety, the officer did not have probable cause to arrest appellant for loitering and prowling. Consequently, the subsequent search was illegal and its fruits should have been suppressed. We therefore reverse the order denying appellant’s motion to suppress and remand with directions to vacate the adjudication of delinquency.

WARNER and STEVENSON, JJ., concur.


text:
    A.J., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D12-463.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2012.

      Kenneth M. Kaplan, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children and Families.
    Hillary S. Kambour, Tavares, for appel-lee Guardian ad Litem Program.
   PER CURIAM.

The father, A.J., appeals the order terminating his rights to parent five children, three girls and two boys, based on allegations that he and his second wife, the children’s stepmother, abused two of the daughters by digitally penetrating the daughters to check for sexual activity. Because there was sufficient evidence of sexual abuse as defined by section 39.01, Florida Statutes (2010), and evidence that, under the totality of the circumstances, all the girls were at substantial risk of significant harm, we affirm the termination as to the daughters. However, we reverse the portion of the order terminating the father’s rights to parent the sons, as there was not sufficient evidence in the record supporting the trial court’s finding that the boys had been harmed or were at risk of being harmed.

This court has previously explained the standard of review in termination of parental rights appeals:

The adjudication of a case involving termination of parental rights involves a two-step process. First, the court must find by clear and convincing evidence that one of the grounds set forth in 39.806, Florida Statutes, has been proven. Second, the court must determine what outcome is in the manifest best interest of the children. Furthermore, the petitioning party must establish that termination of parental rights is the least restrictive means of protecting the child from harm. On appeal, the appellate court’s task:
Is not to conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute [its] judgment for that of the trier of fact. Instead, [it] will uphold the trial court’s finding “[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights.” Where the trial court’s finding that there is clear and convincing evidence to terminate parental rights is supported by competent, substantial evidence, the appellate court has no choice but to affirm.

D.G. v. Dep’t of Children and Families, 77 So.3d 201, 206-07 (Fla. 4th DCA 2011) (citations omitted).

DCF may seek to terminate parental rights based on abuse of a sibling or another child, but the termination decision regarding the current child must be based “on the totality of the circumstances surrounding the current petition.” Florida Dep’t of Children and Families v. F.L., 880 So.2d 602, 611 (Fla.2004) (citing Padgett v. Dep’t of Health and Rehab. Servs., 577 So.2d 565 (Fla.1991)). Further, DCF must show that the parent’s conduct poses a substantial risk of significant harm to the current child and that termination is the least restrictive means to protect the child. Id. Although the termination petition in F.L. was based on the involuntary termination of rights as to a sibling under section 39.806(l)(i), Florida Statutes, our courts have required the state to show a risk of harm to the current child where the petition is based on other grounds. See In re M.F., 770 So.2d 1189 (Fla.2000) (dependency petition based on sex offense against another child); J.J. v. Dep’t of Children and Families, 994 So.2d 496, 501 (Fla. 4th DCA 2008) (termination petition based on egregious conduct toward a sibling under section 39.806(l)(f)); J.F. v. Dep’t of Children and Families, 890 So.2d 434 (Fla. 4th DCA 2004) (termination petition based on manslaughter/felony assault of another child under section 39.806(l)(f) and (h)).

But see In re E.R., 49 So.3d 846 (Fla. 2d DCA 2010) (no need to show nexus where petition for termination of rights is based on sibling’s death from shaken baby syndrome under subsection (l)(h), and certifying conflict with Fourth DCA’s opinion in J.F.), cause dismissed, 61 So.3d 411 (Fla. 2011), and review denied, 60 So.3d 1054 (Fla.2011).

We reject the father’s first argument that there was not sufficient evidence of sexual abuse. DCF relied on section 39.806(l)(g), Florida Statutes, which provides in relevant part:

The parent or parents have subjected the child or another child to aggravated child abuse as defined in s. 827.03, sexual battery or sexual abuse as defined in s. 39.01, or chronic abuse.

§ 39.806(l)(g), Fla. Stat. (2010).

After reviewing the record, we find that competent substantial evidence supports the trial court’s finding of clear and convincing evidence of sexual abuse as defined in section 39.01, Florida Statutes (2010). Next we address the father’s other argument, that evidence of abuse of one child, M.J., was not sufficient to terminate his rights to the other children. We reject this argument as to the daughters, as the evidence reflected that all three were subjected to the abuse. However, we agree with the father that there was not sufficient evidence that the sons were harmed or are at risk of being harmed. The only evidence at trial regarding any harm to the sons, A.J., Jr. and T.J., was that the former had been Baker Acted after being removed from the home, and the latter was scheduled for a psychological evaluation. No details or context were provided. Thus, not only was it unclear what the nature and extent of the mental health issues were, it was also unclear that any mental health issues had anything to do with the abuse occurring in the home. As there was insufficient evidence that the sons were at a substantial risk of significant harm, it follows that termination was not the least restrictive means of protecting the sons. We affirm in part, reverse in pai't, and remand for further proceedings. See JJ. v. Dep’t of Children and Families, 994 So.2d 496, 503 (Fla. 4th DCA) (holding that DCF failed to prove the mother posed a substantial risk of significant harm and that termination was least restrictive means to protect the children, and remanding for “continuation of the children’s dependency status, formulation of a case plan for the mother, and for further proceedings ....”)

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

WARNER, HAZOURI and CIKLIN, JJ., concur.

      . The evidence at the adjudicatory hearing reflected that the children had lived on and off with their mother and would reside with the father and their stepmother when their mother either abandoned them or was in jail. The stepmother testified that A.J., Jr. had anger and aggression issues when he moved in with them, and that she believed this was based on "a lot of stuff that was going on at his mother’s house and that the kids in the neighborhood knew about....” When she moved him to a different school, the problems subsided.


text:
    Patricia Louise ABRAM-ADAMS, Appellant, v. Corley John ADAMS, Appellee.
    No. 4D11-3366.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2012.
    Patricia Louise Abram-Adams, Deer-field Beach, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979) (where appellant fails to bring forth transcript of proceedings, record is inadequate to demonstrate reversible error).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Marcos ACEVEDO, Appellant, v. BAC HOME LOANS SERVICING, LP, Appellee.
    No. 4D12-188.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2012

      Kenneth Eric Trent, Fort Lauderdale, for appellant.
    Robert R. Edwards of Law Offices of Marshall C. Watson, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

Marcos Acevedo appeals from a final judgment of mortgage foreclosure. He argues two issues on appeal, and the appel-lee, BAC Home Loans Servicing, LP, concedes error with respect to both issues. Specifically, the appellee concedes that the trial court erred by (1) receiving live testimony at the summary judgment hearing; and (2) entering final judgment that did not purport to re-establish a lost note consistent with the evidence presented at the hearing. Appellee expressly denies the other arguments made by appellant. We accept the appellee’s confession of error, vacate the final judgment and remand for further proceedings.

Reversed and remanded.

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


text:
    Diana Carla RIVERA, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for GSAA Home Equity Trust 2006-11, Asset Back Certificates Series 2006-11, Ap-pellee.
    No. 4D11-4219.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2012.
    Diana Carla Rivera, Hollywood, pro se.
    Robert R. Edwards of Law Offices of Marshall C. Watson, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

Diana Carla Rivera appeals from an order denying her emergency motion to vacate foreclosure sale, set aside default, and vacate final judgment. Appellee Deutsche Bank National Trust Company, as Trustee, concedes that the trial court erred in not vacating the final judgment entered against Ms. Rivera, solely on the ground that service of process was not properly effected. Accordingly, appellee requests this Court to reverse and remand so that service may be properly effected on Ms. Rivera. We accept the appellee’s concession of error, and reverse and remand this cause to the trial court for further proceedings consistent herewith.

Reversed and remanded.

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


text:
    Jonathan Adam ZABEL, II, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1565.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2012.

      Jonathan Adam Zabel, II, Lake Butler, 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 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. 42-2009-CF-002691, in the Circuit Court in and for Marion County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, PALMER and TORPY, JJ„ concur.


text:
    Scott N. ERRICO, Appellant, v. Michael J. SATZ as State Attorney, 17th Judicial Circuit, Appellee.
    No. 4D11-2061.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2012.
    Scott N. Errico, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm the denial of appellant’s petition for writ of mandamus through which he sought compliance by the Broward State Attorney with his public records request, although we do so on a different basis than the trial court ruled. Appellant, a convicted criminal, is requesting records of another criminal case prosecuted by the Broward State Attorney, not records in his own case. The state had responded to the request by stating that it had made an inspection of its records, and it had supplied statements pertaining to some of his requests. As to others, the state reported that it could not locate any statements identified in appellant’s request.

In its response to the petition and on appeal, the state points out that the appellant made an identical demand in a pending motion for postconviction relief from his own case, which was denied. A request for public records in postconviction proceedings is allowable. See Mendyk v. State, 592 So.2d 1076, 1081 (Fla.1992), overruled on other grounds by Hoffman v. State, 613 So.2d 405 (Fla.1992). The state provided many of the documents requested, and the trial court denied appellant’s motion to compel the production of other documents. Thus, the same claims made in the petition for writ of mandamus were already adjudicated on the merits in his postconviction proceedings. This proceeding is duplicative of that proceeding, and it is barred by res judicata. See, e.g., Washington v. State, 933 So.2d 577, 579 (Fla. 5th DCA 2006) (issues denied on the merits in collateral proceedings are res judica-ta in further proceedings). The appellant sought review of that order in this case by way of a petition for writ of certiorari. The petition was dismissed on the authority of Bared & Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996), as the court determined that petitioner had not shown irreparable harm not remediable on appeal from a final order. Enrico v. State, No. 4D10-5219 (Fla. 4th DCA Mar. 21, 2011). Therefore, the denial of the motion to compel production may still be raised on appeal from a final order in the postconviction proceeding.

Affirmed.

WARNER, POLEN and DAMOORGIAN, JJ., concur.


text:
    Lewis David CARSON, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5071.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

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


text:
    Kendrick M. CORBETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4606.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

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


text:
    Charles BARFUSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5619.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

LEWIS, WETHERELL, and MAKAR, JJ., concur.


text:
    Todd Michael LEBOUTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0352.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

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


text:
    Curtis L. DUGGAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6835.
    District Court of Appeal of Florida, First District.
    Oct. 4, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

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


text:
    George Lekreshian BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-306.
    District Court of Appeal of Florida, First District.
    Oct. 4, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

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


text:
    STATE of Louisiana v. Mary Henderson TRAHAN.
    No. 2011-K-1609.
    Supreme Court of Louisiana.
    July 2, 2012.
    Rehearing Denied Sept. 21, 2012.
    James D. Caldwell, Attorney General, Michael Harson, District Attorney, Daniel M. Landry, III, Assistant District Attorney, for Applicant.
    John Clay Lejeune, for Respondent.
   PER CURIAM.

|tThe state charged defendant by grand jury indictment with second degree murder in violation of La.R.S. 14:30.1 following the shooting death of her live-in boyfriend/husband. After trial by jury, defendant was found guilty as charged. The trial court sentenced her to the mandatory term of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, the Third Circuit reversed defendant’s conviction and sentence on grounds that the evidence presented at trial did not support her conviction for second degree murder and would not support a judgment of guilt on the lesser included and responsive offenses of manslaughter and negligent homicide. State v. Trahan, 11-148, p. 13 (La.App. 3 Cir. 7/6/11), 69 So.3d 1240, 1248. The court of appeal accordingly ordered defendant acquitted. We granted the state’s application for review and reverse the decision below for reasons that follow.

The evidence introduced at trial established that on April 20, 2009, defendant called 9-1-1 to report that her boyfriend/husband had been shot and required assistance. Defendant identified herself by name and when asked if the shooter was still present, she replied, “It’s me.” The first officer to respond did so within three minutes, and encountered defendant frantically waving her arms outside of her house, saying her boyfriend had been shot, and that his body and the gun were still inside the residence. The officer testified that upon entering and |2securing the house, he discovered the victim lying on a bloodied bathroom floor propped up against the bathtub and a gun on a nearby bed. After securing the premises, the officer then let EMTs from the Acadian Ambulance Service into the bathroom in an attempt to revive the victim. The lead detective, Dwayne Angelle, observed stippling from the gun on the skin of the victim, who was clad in a pair of pants but shirtless. The gun found on the bed was a .357 Magnum. No fingerprints were recovered from it and the state presented no ballistics evidence to match a bullet removed from the bathroom wall to the revolver. The gun was found to be in working order, “like every other revolver” the detective had shot, with a normal trigger pull. Detective Angelle acknowledged that if the gun were first cocked, much less pressure was required to pull the trigger. However, in either case, the shooter would have to reach through the trigger guard and pull the trigger to fire the weapon. The officer explained that stippling, produced by the spray of gun powder ejected from the barrel of a gun impacting skin and causing small burns, meant that the .357 Magnum had been fired at close range. The detective noticed no water on the floor and no evidence of any footprints in the area, although there was blood “all around the body” and the EMTs had placed some leads on the victim in an attempt to revive him.

The coroner testified that the bullet fired from the gun entered the victim’s right lower back shoulder and exited from his upper chest area approximately five inches above the entrance wound. He stated the bullet passed upwards through the lower right lung, through two chambers of the heart, severed the aorta and pulmonary arteries, and traveled through the upper left lung, before exiting the victim’s body and embedding in the bathroom wall. He agreed with Detective Angelle that the stippling indicated the victim had suffered a close-range wound, and estimated the distance as anywhere from a few inches to up to four feet away. ^Though ultimately not relevant to defendant’s case, the coroner determined the victim had amphetamine, methamphetamine, and MDMA (“ecstasy”) in his urine at the time of his death. In response to a question by defense counsel, the coroner stated his understanding “that there was some sort of altercation” before the shooting took place.

No state witness could testify as to what made the gun fire, or whether the shooting itself was accidental. A blood spatter analyst testified that in his opinion, the victim was probably standing bent over the bathroom sink when he was shot. Because the bullet had severed his aorta artery, causing his blood driven by arterial pressure to splash out against the wall in a characteristic pattern, the victim would have gone down “real fast.” Based on the relatively small size of powder stippling at the entrance wound, the expert placed the outside distance of the gun when it fired at three feet.

Defendant did not testify at trial but to a significant degree, the evidence presented at trial was shaped by a statement she gave to the police on the night of the shooting that jurors never heard. In that statement, defendant characterized her relationship with the victim as abusive because he had “a lil’ mean streak in him,” and that they had quarreled in the past, often over his drug use, and intermittently throughout the day before the shooting. Defendant explained that the .357 Magnum belonged to her, a gift from her ex-husband, and that she knew how to shoot it, but that the victim had often picked it up when they quarreled. Defendant stated that on the night of the shooting, she had gone into the bathroom to brush her teeth when the victim approached her gun in hand. She convinced him to hand her the weapon and that when he did so, she slipped as he came forward, as if to push her, and the gun went off. Defendant recalled that the victim had been facing ]4her but that just before the gun fired, he had turned and then turned back with a look of fear on his face after the gun discharged into his body.

Neither side introduced defendant’s statement at trial, although the state had filed a notice pursuant to La.C.Cr.P. art. 768 of its intent to introduce the statement as well as the 9-1-1 call. However, reflecting the substance of the interview, in opening statements, the state remarked that “obviously there was some kind of disturbance going on between the two of them,” and defense counsel, conceding that he had not yet made the decision whether to call defendant to the stand, informed jurors that one way or another, through police testimony or through defendant, jurors would hear “her story,” ie., the narrative given by defendant to the police which he then outlined for jurors. Thereafter, on cross-examination, defense counsel sought to establish that there may have been water on the floor of the bathroom, perhaps concealed under the body of the victim slumped against the bathtub. However, Detective Angelle testified that he noticed no water on the floor along with the blood around the victim’s body, although he could not discount the possibility that it may have evaporated by the time the officers arrived. Defense counsel also wrangled with the state’s blood spatter expert over his opinion that the victim had been shot in the back as he bent over the wash basin in the bathroom. Counsel suggested that the bullet would have taken a downward trajectory in that | ¿scenario but the evidence established that the bullet had traveled upwards, a trajectory counsel clearly thought consistent with defendant’s account to the police that the victim, whom she described as an inch taller than she, had turned away from her momentarily when the gun discharged then turned back with his face full of fear. In the face of vigorous cross-examination, the expert maintained his opinion that the trajectory of the bullet was entirely consistent with the victim bending over the wash basin when he was shot.

In the end, jurors heard no evidence that defendant had been in a tumultuous relationship with the victim or that they had quarreled that day, or that she had slipped on the bathroom floor as the victim confronted her. Instead, both sides argued the case from the perspective of what happened after the shooting occurred. The state emphasized that the police found no evidence of footprints in the blood

splashed on the floor of the bathroom or that defendant had taken any measures in an attempt to staunch the flow of blood before she called 9-1-1. Defense counsel urged jurors to consider that from the outset, in her 9-1-1 call defendant acknowledged she had shot the victim, that she was frantic, in a state of hysteria, waving to the police as they arrived and urging them into the house. With no evidence that defendant had been provoked, counsel described the shooting as a “horrible accident,” and urged jurors to consider only two possible verdicts: guilty of negligent homicide or not guilty.

The failure of either side to establish a larger context for the shooting played a critical role in the court of appeal’s decision to reverse defendant’s conviction and sentence. The majority on the panel readily acknowledged that there were two circumstances from which jurors could have inferred a specific intent to kill: the victim was shot at close range and defendant had been involved in some sort of altercation with the victim on the day of the shooting. As to the former, while the | ^deliberate shooting of someone at close range may support a finding of specific intent to kill as a circumstantial inference from the evidence presented, see, e.g.. State v. Williams, 383 So.2d 369, 373 (La.1980); State v. Procell, 365 So.2d 484, 492 (La.1978), the state had “presented no evidence demonstrating that Defendant aimed the gun at the victim, [or] how the gun discharged.” Trahan, 11-148 at 6-7, 69 So.3d at 1244. The majority emphasized the testimony that relatively little force would have been needed to pull the trigger if the gun had first been cocked. As to the latter circumstance, the prosecutor had no evidence of any altercation but “merely words,” without “one piece of evidence ... to prove an argument or that Defendant was angry at the victim.” Id., 11-148 at 6, 69 So.3d at 1244. The state had thus failed to present any evidence that defendant had a motive for the shooting, a circumstance which tended to negate a finding of specific intent. Id., 11-148 at 6, 69 So.3d at 1244 (“Motive is not an essential element of murder, but ‘a lack of motive may properly be considered as a circumstance mitigating against specific intent.’ ”) (quoting State v. Mart, 352 So.2d 678, 681 (La.1977)). Given the sparseness of the state’s case, the court of appeal majority found themselves “firmly convinced that the only explanation for the jury’s verdict of second degree murder was the information supplied to them in the opening and closing statements.” Id., 11-148 at 8, 69 So.3d at 1245-46. However, these statements “are not subject to a sufficiency review under the Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ] standard because the statements do not constitute evidence.” Id.

The court of appeal thus reversed defendant’s conviction for second degree murder. The majority further discounted the possibility of entering a judgment for the lesser included offense of manslaughter, as to which the State failed to prove specific intent, or negligent homicide, as to which “the State did not meet its |7burden of proving that Defendant acted below the standard of care expected to be maintained by a reasonably careful person under like circumstances.” Trahan, 11-148 at 12, 69 So.3d at 1247. In the end, as to all verdicts, the state’s witnesses conceded that they did not know how the gun discharged or whether the shooting was accidental. Thus, the reasonable hypothesis advanced by the defense on cross-examination of the state’s witnesses, ie., that the shooting was accidental and not deliberate, was “sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.” Id. Dissenting, Judge Gremillion observed that the state’s “lackluster presentation of evidence” would not have precluded a rational juror, considering that the only issue presented was whether the shooting was deliberate, from concluding that “[pjointing a loaded gun at the victim — even if the gun was accidentally discharged — exhibits a gross deviation below the standard of care expected from a reasonably careful person.” Trahan, 11-148 at 2, 69 So.3d at 1249. Judge Gremillion thus found the evidence sufficient to have convicted defendant of negligent homicide in violation of La.R.S. 14:32. Id.

We do not agree with the premise of the court of appeal’s decision that the due process question under Jackson v. Virginia, whether the evidence was sufficient for a rational trier of fact to find defendant guilty of second degree murder, must be resolved entirely outside of the context of what counsel for the state and defense did or did not say in their opening and closing remarks. It clearly appears that most of the extra-record information provided by counsel came not from the state but from the defense when counsel outlined in his opening remarks the hypothesis of innocence, based on a statement jurors would never hear, that defendant slipped in her bathroom after disarming the victim and fired accidentally in the culminating event of an abusive relationship and a day-long argument. The |strial court appropriately instructed jurors at the close of the case that “opening statement and the closing arguments are not to be considered as evidence.” However, the trial court also appropriately informed jurors that in opening statements, “the attorney[s] were permitted to familiarize you with the facts they expected to prove.” See 1 Louisiana Judges’ Criminal Bench Book, § 3.07, p. 22 (Louisiana Judicial College 1995) (Model Instruction: “In opening statements the attorneys were permitted to tell you the facts they expected to prove. In closing arguments the attorneys were permitted to present for your consideration their contentions regarding what the evidence has shown or not shown and what conclusions they think may be drawn from the evidence. The opening statements and closing arguments are not to be considered as evidence.”) (citing State v. Green, 343 So.2d 149 (La.1977)).

Jurors were therefore entitled at the close of the evidence to hold the defense accountable for its failure to introduce any evidence in support of the hypothesis of innocence proposed by defense counsel, apart from the coroner’s vague statement in response to questioning by the defense that he understood some sort of altercation had occurred earlier on the day of the shooting, a detail far more helpful to the state than the defense because it provided the only evidence of motive in the case. Jurors were also entitled to consider the direct evidence defendant provided in her admission to the 9-1-1 operator that she had shot the victim and to the first responders that the victim’s body and the gun were still inside the house, the source for defense counsel’s own judicial admission in his opening and closing remarks that defendant had killed the victim with the gun found by the police in the residence. See Martinez v. Bally’s Louisiana, Inc., 244 F.3d 474, 477 (5th Cir.2001) (“Although a judicial admission is not itself evidence, it has the effect of withdrawing a fact from contention.”); United States v. Blood, 806 F.2d 1218, R1221 (4th Cir.1986) (“Generally, statements by an attorney concerning a matter within his employment may be admissible against the retaining client. Further, a clear and unambiguous admission of fact made by a party’s attorney in an opening statement in a civil or criminal case is binding upon the party.”); United States v. McKeon, 738 F.2d 26, 30 (2nd Cir.1984) (“An admission by a defense attorney in his opening statement in a criminal trial has ... been held to eliminate the need for further proof on a given element of an offense.”) (citation omitted); Hall v. Wal-Mart Stores East, LP, 447 F.Supp.2d 604, 608 (W.D.Va.2006) (“Though case law on the issue is scarce, the principle that an admission of counsel during trial ‘may dispense with proof of facts for which witnesses would otherwise be called’ has been recognized by the Supreme Court since 1880.”) (citing Oscanyan v. Arms Co., 108 U.S. 261, 263, 26 L.Ed. 539, 541 (1880) (“The power of the court to act in the disposition of a trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced.”)).

It clearly appears that jurors reasonably rejected the hypothesis of innocence proposed by the defense which produced no evidence in support of it. The due process question under Jackson therefore is not whether “another possible hypothesis ... could explain the events in an exculpatory fashion,” but whether, viewing the evidence in a light most favorable to the state, an alternative hypothesis exists that is “sufficiently reasonable that a rational juror could not ‘have found proof of guilt beyond a reasonable doubt.’ ” State v. Captville, 448 So.2d 676, 680 (La.1984) (quoting Jackson). Because the hypothesis rejected by jurors came from defense counsel, as opposed to defendant’s statement to the police on the night of the offense, or defendant’s testimony from the stand, jurors could not infer from the failure of the hypothesis that defendant lied to conceal her guilt. Captville, 448 So.2d at 680, n. 4 (“ ‘Lying’ has been recognized as indicative |inof an awareness of wrongdoing.”) (citing State v. Rault, 445 So.2d 1203, 1213 (La.1984) (“The jury could have reasonably concluded that Rault concocted this version of the crime to hide his own guilt.”)). Thus, viewed in the light most favorable to the prosecution, the evidence at trial, as shaped by the admissions of fact made by defendant on the scene and by the judicial admissions of defense counsel in his opening and closing statements, established that the victim died from a single shot fired at close range, less than four feet, by a high-powered hand gun as he stood bent over the wash basin in the bathroom, a stance the state’s blood spatter expert found entirely consistent with the apparent upward trajectory of the bullet as it traveled through the victim’s body and exited his left shoulder into the bathroom wall. From the outset, defendant identified herself as the shooter and informed the police that the gun she used was still inside the residence. Evidence established that the weapon had a normal trigger pull and that even when cocked, the trigger had to be pulled within the trigger guard to fire a round. There was no evidence of water on the floor or of any footprints in the blood spilled on the floor indicating that defendant may not have entered the bathroom after she shot the victim through the heart in a spray of blood and he went to the floor “real fast,” although the Acadian Ambulance Service EMTs on the scene evidently left no footprints when they attended to the victim. There was no evidence defendant attempted to aid the stricken victim after he slumped against the bathtub but there was evidence that defendant was frantic, nearly hysterical, when she called 9-1-1, and then greeted the police outside imploring them to rush to the victim’s aid. There was some evidence from the coroner that an altercation had occurred earlier that day.

A rational trier of fact could find from this evidence that defendant discharged the high-powered hand gun by pulling the trigger while holding the gun |nno more than three or four feet from the victim as he stood defenseless and bent over the washbasin in the bathroom with his back turned towards her, and from that evidence, that defendant had the specific intent to kill or to inflict great bodily harm, although she may then have become emotionally overwrought by what had just happened. Other scenarios involving an accidental discharge of the revolver, but not involving the failed hypothesis of innocence proposed by defense counsel and rejected by jurors, were possible but not so probable that a rational juror would necessarily have a reasonable doubt as to defendant’s guilt.

We therefore reverse the decision below, reinstate defendant’s conviction for second degree murder and life sentence, and remand the case to the district court for execution of sentence.

      . Counsel thus informed jurors:
      And what her story is that George [the victim] had a temper. She has a temper. They argued a lot. And when George would get mad, he would go get the gun and he would wave the gun and point the gun while they were arguing. And it scared her because she’s going to testify — you’re going to hear testimony that George had a drug problem and abused drugs, and she was afraid .... they were in a, sadly, an abusive relationship. And on this particular occasion, he came into the bathroom where she was already. He didn’t retreat into the bathroom. He came after her into the bathroom, waving the gun around. And she said, George, give me the gun. So then he gave the gun. There was some water on the floor; she slipped. The gun discharged. It struck George, and ultimately, he dies. Okay. And it's tragic. It’s horrible. It's a horrible thing that happened. But let’s talk about what she did thereafter.