text:
    Ex parte Michael L. JONES. (In re State of Alabama v. Michael L. Jones).
    CR-09-1576.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2010.

      Michael L. Jones, pro se.
    Submitted on petitioner’s brief only.
   PER CURIAM.

The petitioner, Michael L. Jones, filed this petition for a writ of mandamus requesting that we direct Judge Robert Earl Wilters to set aside his order denying Jones’s motion to be treated as a “technical” violator under the recent amendment to § 15-22-54.1, Ala.Code 1975.

In 1999, Jones was convicted of rape, was sentenced to 15 years’ imprisonment, and was placed on probation. In 2004, probation-revocation proceedings were initiated. Jones’s probation was revoked, and he was ordered to serve the remainder of his sentence in a state penitentiary. This Court affirmed the revocation of his probation on appeal, without an opinion. See Jones v. State, (No. CR-04-0617, June 17, 2005) 926 So.2d 1086 (Ala.Crim.App.2005) (table).

In July 2010, Jones filed a motion in the Baldwin Circuit Court pursuant to newly amended § 15-22-54.1, Ala.Code 1975, arguing that he is a technical violator according to the amendment and should be re-sentenced. On July 14, 2010, the circuit court denied Jones’s motion. Jones then filed this petition for a writ of mandamus with this Court.

Section 15-22-54.1, as amended effective April 30, 2010, provides:

“(a) Any person convicted of a nonviolent offense now serving a prison sentence based on revocation of probation as a result of only technical violations shall be entitled to be resentenced upon petition to the sentencing court. Such petition shall be on a form and filed in the manner prescribed by the Administrative Office of Courts. Petitions shall be considered authorized motions for modification of sentence, assigned a unique identifier by the Administrative Office of Courts, and shall not require payment of a filing fee.
“(b) The court shall have jurisdiction to resentence the offender in accordance with the terms of this section, upon a showing of the following:
“(1) The offender successfully completed the terms of probation for six months.
“(2) Probation was thereafter revoked and the offender was sentenced to the penitentiary only as a result of technical violations of probation.
“(3) The offender has no disciplinary infractions while serving the sentence in the penitentiary.
“(4) The offender has no pending charges or convictions for a new offense.”

The question presented in this case is whether the denial of a motion under § 15-22-54.1 is appealable to this Court or is reviewable by mandamus petition.

Section 15-22-54.1, Ala.Code 1975, like the amendment to § 13A-5-9.1, Ala.Code 1975, gives a lower court the authority to reopen a case after a case is final. When discussing whether an order on a motion to reconsider a sentence pursuant to § 13A-5-9.1 is appealable, we have stated:

“[I]n Kirby [v. State, 899 So.2d 968 (Ala.2004) ], when it reversed this court’s order dismissing Kirby’s appeal, the Alabama Supreme Court implied that such orders are appealable. Further, in Alabama Department of Mental Health & Mental Retardation v. State, 873 So.2d 1176, 1177-78 (Ala.Crim.App.2003), we noted:
“ ‘There is no right to appeal granted in the Alabama Constitution of 1901. This Court’s appellate jurisdiction is prescribed in § 12-3-9, Ala. Code 1975, which states:
“ ‘ “The Court of Criminal Appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post conviction writs in criminal cases.”
“ ‘Amend. No. 328, § 6.03(a), Ala.Const.1901, also states that this Court shall “exercise” its appellate jurisdiction “under such terms and conditions as shall be provided by law and by rules of the Supreme Court.”
“ ‘As we recently stated in Dixon v. City of Mobile, 859 So.2d 462, 463 (Ala.Crim.App.2003):
“ ‘ “ ‘The right of appeal is wholly statutory and is authorized in criminal cases from a judgment of conviction.’ McCray v. State, 46 Ala.App. 588, 589, 246 So.2d 475, 476 (Ala.Crim.App.1971). ‘Appeals lie only from judgments of conviction, and then only on those counts upon which there is a finding of guilt.’ Thornton v. State, 390 So.2d 1093, 1096 (Ala.Crim.App.1980). ‘An appeal cannot be taken from an order subsequent to the judgment of conviction unless authorized by statute.’ Harris v. State, 44 Ala.App. 632, 632, 218 So.2d 285, 286 (1969).” ’
“(Footnote omitted.) Once a conviction has been obtained and a corresponding sentence has been imposed, the convicted defendant may appeal the conviction and sentence to this court. As we explain in Part I of this opinion, a § 13A-5-9.1 motion involves reopening an existing case, in which there has been a conviction and sentence, for possible re-sentencing. Logically, then, any order either granting or denying a request for reconsideration of a sentence would be appealable.”

Prestwood v. State, 915 So.2d 580, 582-83 (Ala.Crim.App.2005).

The same logic applies in this case. In amending § 15-22-54.1 to provide convicted probation violators with the authority to file a motion to be treated and sentenced as a technical violator, the legislature specifically conferred jurisdiction on the court to reopen a probation-revocation case. Logically, because we routinely review probation-revocation proceedings, a ruling denying a defendant’s motion to be treated as a technical violator would likewise be appealable to this Court.

A petition for a writ of mandamus will issue only if the following prerequisites are established: (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court. See State v. Williams, 679 So.2d 275 (Ala.Crim.App.1996). Jones has failed to establish the prerequisites for the issuance of a writ of mandamus because he has an adequate remedy at law. See Ex parte Dunn, 8 So.3d 935, 937 (Ala.2008). Accordingly, this petition is due to be denied.

PETITION DENIED.

WISE, P.J., and WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.


source: Caselaw Access Project

author: WINDOM, Judge.

license: Public Domain

text:
    Niquita BLAKE v. STATE of Alabama.
    CR-09-0376.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2010.
    James E. Deshler II, Thomasville, for appellant.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   WINDOM, Judge.

Niquita Blake appeals her conviction for attempted murder, see § 13A-4-2 and § 13A-6-2, Ala.Code 1975, and her resulting sentence of 20 years in prison. The circuit court split Blake’s 20-year sentence and ordered her to serve 4 years in prison followed by 5 years on probation.

The evidence presented at trial established that on March 23, 2008, shortly after a group of children had participated in an Easter egg hunt, Blake and Sharkea Williams got into an argument about how their children had been interacting with one another. During the argument, Blake pulled a pistol from her pocket and shot Williams in the stomach.

The State presented evidence indicating that during the argument, Williams had a knife but did not brandish the knife or attack Blake before being shot. The State also presented evidence indicating that, even if Williams had brandished a knife, Blake could have safely retreated from the argument.

Blake, on the other hand, presented evidence indicating that Williams was the first aggressor. Blake’s evidence also indicated that during the argument, Williams threw beer on Blake, hit Blake with a beer can, and then pulled a knife and attempted to slash Blake’s neck. According to Blake and other witnesses that testified on her behalf, after Williams missed Blake’s neck with the blade of the knife, Blake pulled a pistol from her pocket and shot Williams in the stomach.

After both sides had rested their cases, the circuit court held a jury-charge conference. During the jury-charge conference, Blake objected to the State’s proposed jury instruction that stated that a person cannot rely on self-defense unless “there [was] no convenient mode of escape by retreat or declining to combat.” (R. 295.) Specifically, Blake argued that pursuant to § 13A-3-23(b), Ala.Code 1975, a person does not have a duty to retreat and may stand her ground so long as that person is not engaged in an illegal activity and is in a place where she has a right to be located.

In response, the prosecutor argued that § 13A-3-23(b), Ala.Code 1975, was not amended to allow a person to stand one’s ground until 2009. The prosecutor further argued that because the altercation from which the charge arose occurred in 2008, the pre-amendment version of the self-defense statute applied. The pre-amendment version of § 13A-3-23(b), Ala.Code 1975, provided that “a person is not justified in using deadly physical force upon another person if it reasonably appears or he knows that he can avoid the necessity of using such force with complete safety [b]y retreating....”

The circuit court agreed with the prosecutor and overruled Blake’s objection. Later, during its self-defense jury charge, the circuit court instructed the jury that a “defendant is not justified in using deadly physical force upon another person and cannot prevail on the issue of self-defense if it reasonably appears or the defendant knows that she can avoid the necessity of using such force with complete safety by retreating.” (R. 325.)

On appeal, Blake argues and the State concedes that Blake’s conviction must be reversed because the circuit court’s self-defense jury instruction was erroneous. According to both Blake and the State, § 13A-3-23(b), Ala.Code 1975, was amended in 2006, before the altercation between Blake and Williams occurred, and that the 2006 amendment removed the duty-to-retreat element of self-defense and allows an individual to stand one’s ground. Thus, the parties agree that the circuit court erroneously instructed the jury that a person claiming self-defense “is not justified in using deadly physical force upon another person and cannot prevail on the issue of self-defense if it reasonably appears or the defendant knows that she can avoid the necessity of using such force with complete safety by retreating.” This Court agrees.

In Williams v. State, 46 So.3d 970, 971 (Ala.Crim.App.2010), this Court recognized that the amendment to § 13A-3-23(b), Ala.Code 1975, which removed from the defense of self-defense the duty to retreat and which allows an individual to stand one’s ground, became effective June 1, 2006. Specifically, the 2006 amendment to § 13A-3-23(b), Ala.Code 1975, provides:

“ ‘A person who [otherwise satisfies the criteria of self-defense] in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.’ ”

Williams, 46 So.3d at 971 (quoting § 13A-3-23(b), Ala.Code 1975, as amended). Because § 13A-3-23(b) was amended before the incident that formed the basis of Blake’s prosecution, the amendment applied in this case. See Minnifield v. State, 941 So.2d 1000, 1001 (Ala.Crim.App.2005) (“It is well settled that the law in effect at the time of the commission of the offense controls the prosecution.”).

Further, the circuit court’s instruction that a “defendant is not justified in using deadly physical force upon another person and cannot prevail on the issue of self-defense if it reasonably appears or the defendant knows that she can avoid the necessity of using such force with complete safety by retreating,” (R. 325) “did not substantially cover the language set forth in the amended version of § 13A-3-23(b), Ala.Code 1975.” Williams, 46 So.3d at 971. Instead, the circuit court erroneously instructed the jury “regarding the duty to retreat as set forth in the pre-amendment version of § 13A-3-23(b), Ala.Code 1975,” Williams, 46 So.3d at 971.

Consequently, the circuit court’s jury instruction regarding the duty to retreat was an incorrect statement of the law and should not have been given. See Williams, 46 So.3d at 971 (citing Jackson v. State, 993 So.2d 45, 47-48 (Ala.Crim.App.2007)). Rather, the circuit court should have instructed the jury in accordance with § 13A-3-23(b), Ala.Code 1975, as amended. Further, the circuit court’s improper self-defense jury instruction was not harmless because the jury could have rejected Blake’s defense of self-defense based on the State’s evidence indicating that she could have retreated. See Jackson, 993 So.2d at 48 (holding that the circuit court’s failure to give a correct instruction on the right to stand one’s ground was not harmless because the jury could have rejected the defendant’s defense of self-defense based on the erroneous belief that the defendant had a duty to retreat); Williams, 46 So.3d at 971-72 (same). Therefore, this Court reverses the circuit court’s judgment and remands this cause for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, KELLUM, and MAIN, JJ., concur.


author: WELCH, Judge.

text:
    Quantrey BRYANT v. ALABAMA DEPARTMENT OF CORRECTIONS.
    CR-09-1375.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2010.

      Quantrey Bryant, pro se.
    Kim T. Thomas, gen. counsel, and Albert S. Butler, asst. gen. counsel, Alabama Department of Corrections, for appellee.
   WELCH, Judge.

Quantrey Bryant appeals from the dismissal of his petition for a writ of habeas corpus, wherein he alleged that he was denied due process in a prison disciplinary proceeding. He was found guilty in the disciplinary proceeding of violating Rule No. 64, Administrative Regulation No. 403 (possession of contraband). Bryant was sanctioned with 45 days’ disciplinary segregation and loss of privileges. Bryant lost one year and seven months good-time credit.

In his petition, Bryant contended that he was denied due process in the prison disciplinary proceeding because, according to him, the hearing officer’s decision was based solely on hearsay. Thus, he claimed, the evidence against him failed to meet the “some-evidence” standard and the hearing officer’s finding was arbitrary and capricious. The Alabama Department of Corrections (“DOC”) filed a motion to dismiss, arguing that the petition failed to state a claim upon which relief could be granted and that Bryant had, in fact, been afforded due process. The DOC attached to its motion to dismiss several documents, including a copy of the disciplinary report and a copy of the institutional incident report. The circuit court granted the DOC’s motion to dismiss the petition.

On appeal, Bryant restates his argument that he was denied the minimum due-process requirements established in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), when the hearing officer made a decision based solely on hearsay testimony. We first note that the loss of good-time credit constitutes a denial of a liberty interest that triggers the due-process requirements established in Wolff. Summerford v. State, 466 So.2d 182 (Ala.Crim.App.1985).

“In Wolff [v. McDonnell], 418 U.S. [539] at 541-42, 94 S.Ct. 2963 [ (1974) ], the United States Supreme Court held that due process requires that a prisoner in a disciplinary proceeding where a liberty interest is implicated must be afforded advance (no less than 24 hours), notice of the charge against him; the right to be present at the disciplinary hearing; the right to present documentary evidence on his behalf; a qualified right to have a representative present on his behalf; a qualified right to call witnesses; and a written statement of the evidence relied on and the reasons for the decision of the disciplinary body. See Brown v. State, 592 So.2d 621, 623 (Ala.1991); and Zamudio v. State, 615 So.2d 156, 157 (Ala.Crim.App.1993). In Thompson v. State, 504 So.2d 747, 748 (Ala.Crim.App.1987), this Court relying on Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), stated that in order to satisfy due process, there must be ‘some evidence’ to support the decision by the prison disciplinary board that the inmate is guilty of the alleged violation. The relevant question is then whether there is some evidence in the record that could support the conclusions reached by the hearing officer. See Thompson, 504 So.2d at 748; see also Heidelburg v. State, 522 So.2d 337, 339 (Ala.Crim.App.1988).
“ ‘Due process requires that the decision of a state disciplinary board or a hearing officer not be made arbitrarily or capriciously, but be based upon some evidence. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Heidelburg v. State[, 522 So.2d 337, 339 (Ala.Crim.App.1988) ]. Hearsay testimony may be admissible in prison disciplinary hearings; however, it may not alone be sufficient to support a finding of guilt. Pearsall v. State, 564 So.2d 1014 (Ala.Cr.App.1989), rev’d in part on other grounds, 564 So.2d 1017 (Ala.1990). See also Ex parte Floyd, 457 So.2d 961 (Ala.1984). Situations arise where findings of guilt based entirely on hearsay are proper and necessary; however in those cases certain measures must be taken to ensure minimum due process. Pearsall v. State.’
“Bridges v. State, 636 So.2d 696, 697 (Ala.Crim.App.1993). See also Oliver v. State, 770 So.2d 1116, 1117-18 (Ala.Crim.App.2000); and Gowers v. State, 766 So.2d 986 (Ala.Crim.App.2000).”

Byers v. State, 856 So.2d 954, 956-57 (Ala.Crim.App.2003).

In this case, the sole evidence upon which the finding of guilt was based was the hearsay testimony of Captain Gwendolyn Tarrance regarding what Tarrance had been told by Officer James Liverett. The record reflects that Captain Tarrance testified at the hearing as follows:

“On December 14, 2009, at approximately 6:26 a.m.[,] Officer James Liverett reported to [me] that he discovered one (1) Sony Ericsson flip cell phone, and four (4) Nokia cell phones, black and silver in color, and one (1) MP3 Player inside a bag located in [Bryant’s] assigned locker box C2 85A.”

(C. 27.)

The disciplinary report reflects that the hearing officer used the testimony as his finding of fact. There is no indication in the report that any other witnesses testified at the disciplinary hearing. There is no indication that any officer who was actually involved in the discovery of the contraband testified at the hearing. In a written statement, which is referenced in the disciplinary report, Bryant denied possessing any contraband.

We cannot say that, taking into consideration all the evidence in the record, the hearsay testimony of Captain Tarrance constitutes “some evidence” so as to satisfy the requirements of due process. There was no evidence to indicate the reliability of the hearsay testimony, nor was any reason given for failing to call a witness who had direct knowledge of the incident.

The DOC argues in its brief on appeal that the testimony was based upon the incident report, which indicated where and in whose locker the contraband was found, and that the hearing officer could have based his decision on the contents of the incident report, which the DOC claims falls under Rule 803(8), Ala. R. Evid., the public-records and reports exception to the hearsay rule. Initially, we note that the hearing officer did not indicate that he had considered the incident report when making his decision. Further, ordinarily, the reports of investigating officers are deemed hearsay and are not admissible into evidence. James v. State, 723 So.2d 776 (Ala.Crim.App.1998). Even assuming, without deciding, that the incident report fell within an exception to the hearsay rule, the exception permits the admission of specified hearsay evidence; it does not prove that such evidence is not hearsay. “Rule 802 expressly exempts from exclusion those hearsay statements whose admissibility is otherwise provided by law.” Rule 802 Ala. R. Evid., Advisory Committee’s notes. (Emphasis added.)

For the reasons stated above, we conclude that the finding of guilt by the hearing officer is not supported by sufficient evidence to meet due-process requirements and is, therefore, arbitrary and capricious. The judgment of the trial court dismissing the habeas corpus petition is, therefore, reversed, and this cause is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and WINDOM, KELLUM, and MAIN, JJ., concur.


author: PER CURIAM.

text:
    Wilbert E. HOLLINS, Petitioner, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-4552.
    District Court of Appeal of Florida, First District.
    March 28, 2011.
    Rehearing Denied May 19, 2011.
    Wilbert S. Hollins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and C. Ian Garland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks review of an order of the circuit court pursuant to Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998). We grant the petition in part.

Petitioner filed a petition for writ of mandamus in the circuit court challenging a prison disciplinary action in which petitioner lost 60 days of gain time. The circuit court found petitioner to be indigent and imposed a lien on his inmate trust account to satisfy the filing fee. The proceeding in the circuit court qualified as a “collateral criminal proceeding” under Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). In such a collateral criminal proceeding, the prisoner indigency statute of section 58.085, Florida Statutes, does not apply, but the general indigency statute, section 58.081, would apply. In Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005), this court held that section 57.081 does not provide for the imposition of a lien. Accordingly, the circuit court erred when it declined to quash the improper lien.

The petition for writ of certiorari is denied as to the challenge to the prison disciplinary report. The petition is granted in part and the improper lien order is hereby quashed.

PETITION GRANTED IN PART and DENIED IN PART.

WOLF, DAVIS, and PADOVANO, JJ., concur.


text:
    Bernest MONTGOMERY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1284.
    District Court of Appeal of Florida, First District.
    March 28, 2011.
    Rehearing Denied May 19, 2011.
    Bernest Montgomery, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, DAVIS, and PADOVANO, JJ., concur.


text:
    Frederick Devon HILLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0970.
    District Court of Appeal of Florida, First District.
    March 30, 2011.
    Rehearing Denied May 19, 2011.
    Frederick Devon Hills, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, WEBSTER, and ROBERTS, JJ., concur.


text:
    Jeffrey B. WAGNER, Husband, Appellant, v. Susan W. WAGNER, Wife, Appellee.
    No. 1D10-4378.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Rehearing Denied May 19, 2011.

      R. Flint Crump, Gainesville, for Appellant.
    Cynthia Stump Swanson, Gainesville, for Appellee.
   PER CURIAM.

Appellant contests certain aspects of the trial court’s Final Judgment of Dissolution of Marriage. He raises six issues, arguing the trial court erred by: 1) ordering an in-kind real property distribution of a 90-acre tract owned by the parties; 2) attributing to active appreciation the entire increase in value of a parcel of land purchased by Appellant prior to the marriage; 3) awarding Appellee all but 11 items of furnishings in the marital home without determining the value of those assets; 4) failing to make the requisite findings of fact to support an unequal distribution of the parties’ marital pi-operty; 5) “enjoining” Appellant from access to a condominium owned by the parties’ real estate management partnership and “enjoining” Appellant from participating in the management of their partnership’s properties; and 6) awarding Appellee exclusive use and occupancy of the marital home prior to issuing a final judgment. We affirm without further comment as to Issues One, Two, Five, and Six. For the reasons explained below, we reverse and remand as to Issue Three, and remand as to Issue Four.

Factual Background

Incorporated in the final judgment is an Equitable Distribution table prepared by the court reflecting the real property and other assets owned by the parties’ property management partnership. Pursuant to the parties’ request, the trial court dissolved the partnership with instructions to liquidate the assets and distribute the proceeds evenly.

A second Equitable Distribution table is also incorporated in the final judgment identifying the parties’ marital and non-marital assets and furnishings, listing the values, and indicating the division. The total value of the assets distributed to Appellee favors her by approximately $133,000; this discrepancy is not addressed in the final judgment. The table includes a line item noting that each party was allocated a 50% share of the partnership’s assets and, in a footnote to this notation, the court noted, “The dissolution of the S & J Properties partnership will result in equal distribution of all cash AND non-cash assets such as property. Adjustments may be made to the cash assets to be distributed so they can be equal between the parties.”

The trial court also notes in this table that Appellant “claims an interest in the marital furniture, but the Court declines to distribute the marital furniture and rugs, and any other items ... because it has not been given an accurate fair market value for those items.” Instead, the court attached Appellee’s document entitled “Inventory of [Appellant’s] Premarital Furniture in Marital Home,” stating that it adopts the Inventory “for the purpose of determining which pieces are in fact [Appellant’s] premarital property.” Appel-lee’s inventory listed'll items.

Analysis

Regarding the trial court’s distribution of the furnishings in the marital home, Appellant argues the trial court improperly awarded everything to Appellee except the furnishings listed on the inventory, without establishing a value for the remaining furnishings. Section 61.075(3)(b), Florida Statutes, provides that a judgment distributing assets in a dissolution proceeding shall clearly identify marital and non-marital assets, include an “individual valuation of significant assets,” and identify which spouse is awarded which assets. This holds true even if, as. here, neither party provides any evidence as to the value of certain assets. See Reddell, 899 So.2d at 1155 (citing Brock v. Brock, 690 So.2d 737 (Fla. 5th DCA 1997)). Consequently, it was error for the trial court to fail to identify and include a valuation of the marital home furnishings. See Lift v. Lift, 1 So.3d 259, 260 (Fla. 4th DCA 2009) (reversing trial court for failure to make specific findings of fact identifying and valuing parties’ assets). Thus, we reverse this portion of the judgment and remand for the trial court to make the requisite findings.

Regarding distribution of the non-partnership assets, it appears that the trial court’s distribution favored Appellee by nearly $133,000 without any explanation for the unequal distribution. As noted above, the trial court’s Equitable Distribution table includes a footnote stating, “The dissolution of the S & J Properties partnership will result in equal distribution of all cash AND non-cash assets such as property. Adjustments may be made to the cash assets to be distributed so they can be equal between the parties.” It is unclear whether the trial court is referring to an equal distribution of partnership property and cash assets only, or if it means that the unequal distribution of non-partnership assets will be rectified once the partnership’s assets are distributed. From the parties’ briefs, it is clear that they interpret the final judgment as resulting in an unequal distribution. Appellee argues that the unequal distribution “amounts to only 5% of the parties’ total net worth,” which it argues “is close enough to equal to be a sustainable distribution.”

“Close enough” is not the applicable standard for justifying an unequal distribution of marital and non-marital assets. Section 61.075(1), Florida Statutes, requires that when distributing the parties’ assets, “the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors” and lists ten factors that must be considered. This court has held that a “trial court may avoid the obligation to divide marital assets equally by making written findings justifying the decision.” Maddox v. Maddox, 750 So.2d 693, 694 (Fla. 1st DCA 2000). “The reviewing court should determine whether competent substantial evidence supports the equitable distribution of marital assets.” Id.

The ambiguity in the final judgment requires us to remand the matter to the trial court for clarification of whether it intended to provide an unequal distribution of property in Appellee’s favor. If it did not, the trial court should eliminate the ambiguity and clarify that it is distributing the parties’ assets equally. If the trial court’s intention is to make an unequal distribution, it must make the requisite findings necessary to support such a distribution.

Conclusion

For the foregoing reasons, with respect to Issues One, Two, Five, and Six, the judgment is AFFIRMED. The judgment is reversed REVERSED as to Issue Three and, as to Issue Four, REMANDED for proceedings consistent with this opinion.

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


text:
    Carter Dean HEUTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0797.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Rehearing Denied June 2, 2011.
    Carter Dean Heuton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

THOMAS, WETHERELL, and ROWE, JJ., concur.


author: SALTER, J.

text:
    Gabriel A. HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2462.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.
    Rehearing and Rehearing En Banc Denied June 17, 2011.

      Sui Chung, Miami; Michael Vastine, for Immigration Clinic, St. Thomas University School of Law, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Tania Galloni, for the Florida Immigrant Advocacy Center; Rebecca Sharpless for Immigration Clinic, University of Miami School of Law; Sabrina Vora-Puglisi, Sonya Rudenstine, Gainesville, and Michael Ufferman, Tallahassee, for Florida Association of Criminal Defense Lawyers, as amicus curiae.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   SALTER, J.

Gabriel A. Hernandez appeals a circuit court order denying his motion to vacate his plea, judgment and sentence under Florida Rule of Criminal Procedure 3.850. The motion was filed approximately three months after the Supreme Court of the United States issued its opinion in Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The issues on appeal are (1) whether the fact that the trial court delivers Florida’s deportation warning in a defendant’s plea colloquy, Florida Rule of Criminal Procedure 3.172(c)(8), bars postconviction ineffective assistance claims based on Padilla, and (2) if not, whether that determination applies retroactively to pleas taken before Padilla was announced.

We conclude that Padilla rendered Florida’s existing standard deportation warning constitutionally deficient in cases such as this. We further conclude, however, that Padilla should not be applied retroactively in Florida postconviction proceedings. Accordingly, we affirm the circuit court order denying Hernandez’s motion. We acknowledge that our rulings on these issues have significant implications — particularly within this District of this State — for pleas taken in the past and to be taken in the future by persons whose right to remain in the United States is subject to summary divestment solely because of such a plea. For that reason, we certify to the Florida Supreme Court the following questions of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(2)(A)(v):

1. DOES THE IMMIGRATION WARNING IN FLORIDA RULE OF CRIMINAL PROCEDURE 3.172(c)(8) BAR IMMIGRATION-BASED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS BASED ON THE U.S. SUPREME COURT’S DECISION IN PADILLA v. KENTUCKY, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)?
2. IF THE PRECEDING QUESTION IS ANSWERED IN THE NEGATIVE, SHOULD THE RULING IN PADILLA BE APPLIED RETROACTIVELY?

Because our conclusion on the first of these two issues expressly and directly conflicts with the decision of the Fourth District in Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010), on the same question of law, we also certify the conflict to the Florida Supreme Court under Florida Rule of Appellate Procedure 9.030(2)(A)(iv).

I. Background

In April 2001, Hernandez (then 19 years old and a permanent resident alien cardholder) was arrested for the sale of lysergic acid diethylamide (LSD) to a confidential informant. Hernandez was born in Nicaragua, but entered the United States with his mother when he was under two years of age. On May 3, 2001, Hernandez was charged by information with a violation of section 893.13(l)(a)l, Florida Statutes (2001), sale of a controlled substance, a second degree felony. The same day, an Assistant Public Defender was appointed to represent him, he was arraigned, and he entered a plea of guilty to the charge. From appointment of counsel to entry of the plea, about ten minutes elapsed. The plea was for one year of probation (with a possibility of termination after six months), completion of a substance abuse assessment and any recommended treatment, and the payment of $451.00 in costs. The maximum sentence of fifteen years in state prison was described to Hernandez by his attorney before he agreed to the plea.

The plea colloquy included Hernandez’s affirmative response (in the presence of his appointed counsel) to the trial court’s question: “Do you understand that if you are not an American citizen, the U.S. Government could use these charges against you in deportation proceedings?” Hernandez also acknowledged as part of the colloquy that he was able to speak, read, and write English. As part of his motion and as a proffer of his (now former) Assistant Public Defender’s recollection of the immigration-related aspects of Hernandez’s plea, Hernandez attached emails regarding the former Assistant’s responses to a series of questions. The former Assistant acknowledged that he had no specific recollection of the case, as he had handled “thousands” of them while a Public Defender, but he reported that he confined his immigration-related advice to his clients to the fact “that a plea could/may affect their immigration status.” He did say that he “definitely did not discuss the immigration consequences with any outside immigration counsel and did not refer Hernandez to an immigration specialist.”

Evidence also was proffered to show that after this incident Hernandez had gone on to attain a number of achievements — a Bachelor of Arts Degree in 2005, and gainful employment as a computer network administrator for a Miami bank group. But unbeknownst to Hernandez in 2001, and apparently to his Assistant Public Defender as well, his plea and conviction was and is classified as an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(B), mandating his deportation under 8 U.S.C. § 1227(a)(2)(A)(iii), and (B)(i). The plea and conviction also bar Hernandez’s eligibility for discretionary relief from deportability under 8 U.S.C. §§ 1182(h) or 1229b(a)(3). In his sworn motion, Hernandez alleged that he would not have entered a plea of guilty if he had known that it “would mandate [his] deportation without recourse.”

II. Analysis Regarding Padilla

In considering Hernandez’s motion, the trial court was not free to ignore our neighboring appellate court’s application of Padilla in Flares. The trial court’s careful and detailed four-page order denying Hernandez’s claim was correct on the basis of binding Florida decisional law as it stood five months after Padilla was announced.We are not bound by Flores, however, and we have also received the benefit of other reported decisions by several federal and state courts.

A. Flores v. State

Flores distinguishes Padilla on a critical point: “Padilla was not advised by the trial court during the plea colloquy that the plea might result in deportation.” Flores, 57 So.3d at 220. The Kentucky trial court did not warn Padilla as a Florida court would have under our Rule 3.172(c)(8). In Flores’ case, an evidentiary hearing had already been conducted, and it was established that his plea colloquy had included language consistent with Rule 3.172(c)(8), notifying him “that the conviction may result in deportation.” Id. The Fourth District held that this warning precluded Flores from showing “the prejudice necessary to obtain relief for ineffective assistance of counsel under [Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].” Id. The opinion accurately observes that “[a] defendant’s sworn answers during a plea colloquy must mean something,” and “a defendant has an affirmative duty to speak up if the attorney has promised something different.” Id.

Relying on this Court’s decision in Bermudez v. State, 603 So.2d 657, 658 (Fla. 3d DCA 1992), Flores holds that the trial court’s warning to Flores that he may be deported based on his plea “cured any prejudice that might have flowed from counsel’s alleged misadvice.” 57 So.3d at 220-21. While this may have been an accurate statement of federal and Florida law before Padilla, we respectfully conclude that it is no longer accurate.

As noted, the record in Padilla did not even include a “may subject you” warning as part of the plea colloquy. But the holding in that case does not depend on a distinction between defense counsel’s mere failure to warn versus his or her affirmative misadvice. Instead, Padilla goes to the very heart of a defendant’s Sixth Amendment right to effective assistance of counsel when the defendant is entering a plea to a criminal charge as to which the plea and sentence, as here, will subject the defendant to deportation (and with no basis to apply for discretionary relief from that result). The majority opinion in Padilla focuses on counsel’s duty, not on the “fair notice” warning that such a plea might (and therefore, inferentially, might not) result in deportation:

There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posted by Justice Alito), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally dear.

Padilla, 130 S.Ct. at 1483 (footnote omitted; emphasis provided).

The majority opinion thus differentiated between those cases involving a mere “risk of adverse immigration consequences,” and those with a “truly clear” deportation consequence. The concurring opinion by Justice Alito in Padilla, joined by Chief Justice Roberts, recognized the consequence of such a distinction in the many cases in which deportability is clear but only the “risk of adverse immigration consequences” warning is given. The concurring opinion argued that defense counsel must only “(1) refrain from unreasonably providing incorrect advice and (2) advise the defendant that a criminal conviction may have adverse immigration consequences and that, if the alien wants advice on this issue, the alien should consult an immigration attorney.” Id. at 1484.

We are obligated to follow and apply the majority’s distinction and holding in Padilla. Applying this new Sixth Amendment analysis to the present case, neither the plea colloquy nor Hernandez’s counsel’s advice (accepting the sworn allegation of Hernandez’s motion as true for this purpose) conveyed the warning that deporta-bility was a non-discretionary and “truly clear” consequence of his plea.

The Supreme Court also explained in Padilla why this seemingly simple distinction between a “will subject you” warning versus a “may subject you” warning has a constitutional dimension:

We too have previously recognized that “ ‘[preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.’ ” [INS v.] St. Cyr, 533 U.S. [289,] 323, 121 S.Ct. 2271, 150 L.Ed.2d 347 [ (2001) ] (quoting 3 Criminal Defense Techniques §§ 60A.01, 60A.02[2] (1999)). Likewise, we have recognized that “preserving the possibility of’ discretionary relief from deportation under § 212(c) of the 1952 INA, 66 Stat. 187, repealed by Congress in 1996, “would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” St. Cyr, 533 U.S. at 323, 121 S.Ct. 2271, 150 L.Ed.2d 347.

Padilla, 130 S.Ct. at 1483.

In Flores, the Fourth District further noted that Padilla’s plea resulted in a conviction for an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii), while Flores’ conviction did not. The opinion reported, however, that Flores nonetheless became deportable under 8 U.S.C. § 1227(a)(2)(B). Under our reading of Padilla, constitutionally effective defense counsel is required under either scenario to furnish a “will subject you,” not a “may subject you” warning to his or her client.

B. Other Decisions Applying Padilla

Other reported opinions have split on both the applicability of Padilla (in cases involving mandatory deportation and a “may subject you to a risk of deportation” warning in the plea colloquy) and whether its holding should be applied retroactively.

People v. Garcia, 29 Misc.3d 756, 907 N.Y.S.2d 398 (N.Y.Sup.Ct.2010), includes a detailed analysis of pre-Padilla case law in New York, the Sixth Amendment implications of the decision, and the retroactivity question. On a plea, conviction, and immigration colloquy similar to those involving Hernandez, the New York Supreme Court found ineffective assistance under Padilla, applied that holding retroactively, and thus vacated the defendant’s pre-Padilla plea.

In State v. Limarco, 235 P.3d 1267 (Kan.Ct.App.2010), the Court of Appeals of Kansas considered the effect of Padilla on Limarco’s motion to vacate a 2005 D.U.I. charge. The Court of Appeals reversed a trial court order denying Limarco’s motion and remanded the case for an evidentiary hearing regarding the alleged prejudice.

In Boakye v. United States, No. 09 Civ. 8217, 2010 WL 1645055 (S.D.N.Y. Apr.22, 2010), the United States District Court for the Southern District of New York considered a motion to vacate a 2005 plea and conviction for participation in a conspiracy to distribute heroin, a “presumptively mandatory” basis for deportation. During the plea colloquy, Boakye received a warning that “another possible consequence of your plea here is that you might be deported.” The U.S. District Court determined that, if Boakye’s allegation as to his counsel’s failure to advise is taken as true, that advice “would amount to unreasonable advice under Padilla.” Based on other contemporaneous evidence regarding the 2005 plea, however, the court concluded that Boakye’s motion failed to satisfy Strickland and denied the motion without an evidentiary hearing.

These three decisions from courts outside Florida are consistent with our analysis of Padilla as regards the constitutional deficiency of a “may” warning in a plea colloquy with a noncitizen when automatic deportability is a “truly clear,” non-discretionary consequence.

III. Analysis Regarding Retroactivity

Neither Padilla itself, nor Limarco, nor Boakye specifically addressed the question of retroactive application. As noted, the New York court did so in People v. Garcia, assessing that question under the federal standards articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and citing numerous early decisions on both sides of the issue.

Our analysis of the issue begins with Padilla itself, which implies (but does not explicitly hold) that it is to be applied retroactively. The majority opinion in Padilla forcefully rejects the “floodgates” concern inherent in retroactive application. The Solicitor General argued “the importance of protecting the finality of convictions obtained through guilty pleas.” Padilla, 130 S.Ct. at 1484. The majority then explained that no such onslaught of postconviction claims had succeeded when Strickland was interpreted in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Id. These passages strongly suggest that the majority fully understood that Padilla would be followed by motions to vacate preexisting pleas and convictions.

“To determine whether a new rule applies retroactively to final cases in postcon-viction proceedings, however, courts in Florida conduct a retroactivity analysis under Witt v. State, 387 So.2d 922 (Fla.1980).” State v. Fleming, 61 So.3d 399 (Fla.2011). Applying Witt to the case at hand, the new rule in Padilla is evaluated to determine whether it “(a) emanates from [the Supreme Court of Florida] or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.” Witt, 387 So.2d at 931. The first two of these three elements have been satisfied. The third element, “fundamental significance,” has been explained in several cases after Witt.

In Chandler v. Crosby, 916 So.2d 728 (Fla.2005), the Supreme Court of Florida identified three factors that are to be assessed in considering a federal constitutional development that is procedural rather than substantive in character: “ ‘(a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of a retroactive application of the new rule.’ ” Chandler, at 730 (quoting Witt, 387 So.2d at 926). We address these in order.

A. Purpose To Be Served

The decision in Padilla is plainly intended to assure that noncitizen defendants considering a plea receive effective assistance of counsel regarding the immigration consequences of the plea. Padilla, as in prior analyses regarding United States Supreme Court decisions in Apprendi, Blakely, Crawford, and Ring, “does not affect the determination of guilt or innocence” and “does not address a miscarriage of justice or effect a judicial upheaval” regarding substantive criminal law. Hughes v. State, 901 So.2d 837, 841-42 (Fla.2005). As in those prior decisions, retroactive application of Padilla does not further the critical purposes of protecting “the veracity or integrity” of the underlying criminal case and preventing the conviction of the innocent. Id. at 844. Rather, Padilla “announced an emerging right of procedural fairness that does not compel the disruption of final judgments.” Id. (citing Witt, 387 So.2d at 929).

B. Extent of Reliance on the Old Rule

Trial and appellate courts in Florida have relied heavily on the pre-Padilla immigration consequences warning as codified in Rule 3.172(c)(8). The “subject to deportation” warning in that rule has been effective for over 22 years and has been relied upon in postconviction cases and appeals during that period. Such a “considerable period of reliance” militates against retroactive application of the new standard articulated in Padilla. Hughes, 901 So.2d at 845.

C. Effect of Retroactive ApjSlication

As the State argues, retroactive application of the rule in Padilla would be far-reaching and adverse to the administration of justice. The insufficiency of the previously-sufficient deportation warning during thousands of past plea colloquies for noncitizens would pave the way for motions to vacate those pleas and convictions. Evidentiary hearings would follow. The concern expressed in another immigration warning case, that for any such case in which a plea is set aside, “the passage of time between the guilty plea and the post-conviction motion puts the State at a great disadvantage in seeking to try the case to conviction,” State v. Green, 944 So.2d 208, 216 (Fla.2006), applies with equal force here.

Each of the three Witt factors cuts against retroactive application. We thus conclude that Padilla does not apply to Florida defendants whose convictions already were final as of March 31, 2010, when that case was decided.

IV. Conclusion

In Padilla, the Supreme Court of the United States concluded that the Sixth Amendment’s guarantee of effective assistance of counsel requires unequivocal advice to a noncitizen defendant considering a plea to almost all drug offenses (including the one involved here) that a guilty plea and conviction will make the defendant subject to automatic deportation. This is a significant change in this body of law, and in criminal practice, because criminal defense counsel ordinarily are not trained, experienced immigration law practitioners. Until Padilla was announced, it was understood in Florida that the specific, but equivocal, language in Rule 3.172(c)(8) was sufficient to survive post-conviction challenge — including claims of ineffective assistance of counsel. The Supreme Court of Florida had previously reconciled the competing interests of the trial courts (establishing bright-line rules) and the interests of defendants in timely raising these issues, by promulgating Rule 3.172(c)(8) and by deciding a line of cases culminating (and chronicled in) State v. Green, 944 So.2d 208 (Fla.2006).

But this orderly landscape has been repainted. It is now the law in this and every other state that constitutionally competent counsel must advise a noncitizen/de-fendant that certain pleas and judgments will, not “may,” subject the defendant to deportation. We must respectfully disagree with the existing panel decision of the Fourth District in Flores v. State, because in our view the ruling in Padilla does not turn on the fact that the Kentucky trial court and plea colloquy failed to include a “may subject you to deportation” type of warning. It turns on the fact that a “may” warning is deficient (and is actually misadvice) in a case in which the plea “will” subject the defendant to deportation. We anticipate that Rule 3.172(c)(8) will require an amendment to comport with the holding in Padilla.

We do not find, however, that Padilla is one of those rare federal constitutional decisions warranting retroactive application under Witt and the many cases that have followed it. As Hernandez’s conviction was final over eight years before Padilla was decided, the trial court correctly denied Hernandez’s motion to vacate his plea.

The order denying Hernandez’s motion is affirmed; questions and conflict certified as detailed above.

      . The far-reaching consequences of this case and other post -Padilla rulings have attracted interest from several academic and professional groups. We acknowledge the Immigration Clinics of the University of Miami and St. Thomas University Schools of Law, the American Immigration Lawyers Association (South Florida Chapter), the Florida Immigrant Advocacy Center, and the Florida Association of Criminal Defense Lawyers, for their participation in the case.

      . Flores is pending in the Fourth District on the appellant's motion for rehearing en banc.

      . The operative facts are as set forth in Hernandez's sworn motion filed in July 2010. They are supported by pertinent documents attached to the motion and are not disputed by the State for purposes of the issues presented here.

      . Padilla, 130 S.Ct. at 1484.

      . Flores, 57 So.3d at 219 and 220 n. 4.

      . This opinion is "unpublished” for purposes of Kansas Supreme Court Rule 7.04(f) and is "not favored for citation” but "may be cited for persuasive authority on a material issue not addressed by a published Kansas appellate court opinion.” The analysis brought to Padilla by the Kansas Court of Appeals is one of the first state court decisions issued in the' aftermath of the U.S. Supreme Court’s decision.

      . Boakye, 2010 WL 1645055, at *4-5.

      . Id. at *5.

      . In People v. Eastman, 85 N.Y.2d 265, 624 N.Y.S.2d 83, 648 N.E.2d 459 (1995), New York adopted the retroactivity analysis in Teague and its progeny. Garcia, 907 N.Y.S.2d at 403.

      . Chandler considered whether the confrontation clause holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), should be applied retroactively. We conclude that Padilla is also procedural, affecting pleas and standards of competence for counsel rather than a substantive change regarding the regulation of conduct or the imposition of penalties for prohibited conduct.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Florida rejected its retroactive application in Hughes v. State, 901 So.2d 837 (Fla.2005).

      . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). A conflict among the Florida district courts of appeal regarding retroactivity was resolved in State v. Fleming, 61 So.3d 399 (Fla. 2011), with a determination that Blakely will not be applied retroactively.

      . Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Retroactive application was rejected in Chandler v. Crosby, 916 So.2d 728 (Fla.2005).

      . Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Retroactive application was rejected in Johnson v. State, 904 So.2d 400 (Fla.2005).

      . In re: Amendments to Fla. Rules of Crim. P., 536 So.2d 992, 994 (Fla.1988). The addition of the warning to the plea colloquy by rule became effective January 1, 1989.


text:
    Leonel MUNOZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D11-452.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.
    Rehearing and Rehearing En Banc Denied June 2, 2011.
    Leonel Munoz, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before RAMIREZ, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

Leonel Munoz seeks habeas corpus relief based on appellate counsel’s ineffective assistance in failing to raise a fundamental error claim, pursuant to State v. Montgomery, 39 So.3d 252 (Fla.2010). Based on our prior decisions in Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010), Daniels v. State, 46 So.3d 630 (Fla. 3d DCA 2010), and Guerra v. State, 44 So.3d 226 (Fla. 3d DCA 2010), we deny the motion. Where the jury was instructed on both manslaughter by act and manslaughter by culpable negligence, there was no fundamental error requiring a reversal of the petitioner’s conviction. See Daniels, 46 So.3d at 630.

Habeas corpus denied.


text:
    Paul MITCHELL, Appellant, v. Ervin HIGGS, as Property Appraiser of Monroe County, Florida, and Lisa Echeverri, as Executive Director of the Florida Department of Revenue, Appellees.
    Nos. 3D10-979, 3D09-1924.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.
    Rehearing Denied June 3, 2011.

      Wayne LaRue Smith and Christian J. Cruz, Key West, for appellant.
    Dent & Johnson, and Sherri L. Johnson, Sarasota, for appellee Ervin Higgs, Joseph C. Mellichamp, III, Tallahassee, Chief Assistant Attorney General, for the Department of Revenue.
    Before GERSTEN, WELLS, and SALTER, JJ.
   SALTER, J.

These are two consolidated appeals from Monroe County Circuit Court judgments regarding Paul Mitchell’s entitlement to homestead property tax exemptions for 1999 through 2006 (our Case No. 3D09-1924) and for 2007 (our Case No. 3D10-979). We reverse a final summary judgment in Mitchell’s favor reinstating his homestead exemption for tax years 1999 through 2006 and remand it for further proceedings. We affirm the final judgment after trial regarding the revocation of the exemption for tax year 2007.

Background

Mitchell’s family has owned the Key West residential property at the center of these cases since 1928. In 1991, Mitchell moved to the property. He applied for, and was granted, the property tax homestead exemption for the residence in 1996.

In 1999, Mitchell bought property on Sugarloaf Key, about 18 miles away from the Key West residence. In 2005, in an effort to help family members, Mitchell changed his Florida driver’s license and voter’s registration to the Sugarloaf Key address. On the change of address card for voter registration, Mitchell listed his Key West residence as the “address of homestead exemption property.” In 2007, Mitchell changed his driver’s license and voter registration addresses back to that of the Key West residence.

In mid-2007, the Monroe County property appraiser received an anonymous complaint that the Key West property was vacant and the property had been receiving the homestead exemption. Upon investigation of the properties, the public records, utility bills, and other information, the appraiser notified Mitchell that the homestead exemption was revoked for 2007. A later notice advised Mitchell that the appraiser had determined that Mitchell was not entitled to the homestead exemption for any of the years 1999 (the year he bought the Sugarloaf residence) through 2006. In 2008, Mitchell filed a lawsuit seeking a declaratory judgment that he was entitled to the homestead exemption for tax years 1999 through 2007. The lawsuit also sought the removal of a tax lien filed against him by the appraiser under section 196.161, Florida Statutes (2006), for the unpaid property tax, penalties, and interest (totaling approximately $28,000) over the eight years, 1999 through 2006.

The trial court granted a final summary judgment in favor of Mitchell as to those eight years, and revoked the recorded tax lien as sought in the complaint. After a non-jury trial, the court concluded that the appraiser had proven that Mitchell was not entitled to the homestead exemption on the Key West property for tax year 2007. These appeals followed.

Analysis — 2007 Tax Year (Case No. 3D10-979)

The intention to establish a permanent residence in Florida “is a factual determination to be made, in the first instance, by the property appraiser.” The property appraiser determined, after a diligent investigation, that the residence on Sugarloaf Key was Mitchell’s primary and permanent residence as of January 1, 2007, such that Mitchell was not eligible for the homestead exemption for 2007.

At trial, the court heard evidence regarding the Mitchells’ occupancy and use of the Sugarloaf Key property, the indicia of vacancy and low utility usage at the Key West address, intention as expressed in the driver’s license and voter registration records, and other objective criteria. The court applied the correct law and entered extensive findings of fact. As the findings are based on substantial and competent evidence, we affirm the final judgment regarding Mitchell’s lack of qualification for the homestead exemption on the Key West property for 2007. CFI Sales & Mktg., Ltd. v. Florida Marlins Baseball, Ltd., 837 So.2d 423 (Fla. 3d DCA 2002).

Analysis — 1999-2006 Tax Years (Case No. 3D09-1924)

The trial court entered a final summary judgment in favor of Mitchell regarding the property appraiser’s revocation of Mitchell’s homestead exemption for years 1999 through 2006. The final summary judgment did not address “[Mitchell’s] claim that sections 196.011, 196.161, and 193.155 are unconstitutional,” though Mitchell has attempted to renew that argument here. Rather, the final summary judgment concluded that the appraiser’s revocation of the homestead exemption is a “change in judgment” that may not be retroactively applied following the close of a tax year, relying principally on Underhill v. Edwards, 400 So.2d 129 (Fla. 5th DCA 1981), and Korash v. Mills, 263 So.2d 579 (Fla.1972).

Korash distinguished a permissible basis for a “back assessment” by the property appraiser (the erroneous omission of an oceanfront motel from taxation altogether) from an impermissible basis (a “change in judgment” such as a change in valuation after the certification of the tax roll for the year). Underhill applied this principle to the retroactive denial of an exemption from property tax:

The determination that a parcel of property is exempt is as much á part of the assessment process as is the determination of its taxable value, and the judgment of the assessor must be applied in reaching that conclusion. We hold, therefore, that a determination in 1977 that the property should not have been exempted in 1976 is a change in judgment and is prohibited under the cited cases.

Underhill, 400 So.2d at 132.

The exemption at issue in Underhill was a charitable-use exemption, not the homestead property tax exemption. Retroactive revocation of the homestead exemption (for up to ten prior years) is the subject of an express legislative enactment, section 196.161, and that provision is not subject to the “change in judgment” rule. Were it otherwise, section 196.161 could never be given effect for any prior year, much less ten prior years, after a tax roll has been certified.

The legislature has imposed a series of requirements for eligibility for the homestead tax exemption and a mechanism for recovering the tax savings (plus interest and a penalty) realized by a property owner not actually entitled to claim the exemption. The constitutionality of such a mechanism (as applied) was thoroughly addressed in Haddock v. Carmody, 1 So.3d 1133 (Fla. 1st DCA 2009). In that case, a property owner claimed and received the homestead tax exemption for a condominium that was subject to a rental program. Under section 196.061, Florida Statutes (2005), the rental of an entire dwelling claimed to be a homestead “shall constitute the abandonment of said dwelling as a homestead.” On that basis, the property tax appraiser notified the owner that the exemptions for three prior years were revoked.

The First District reversed the trial court’s determination of unconstitutionality as applied, holding that the Florida Constitution expressly conditions eligibility for the exemption “upon establishment of the right in accordance with the manner prescribed by law.” Id. at 1136 (citation omitted). The court noted at the outset that “statutes involving tax exemptions are strictly construed against the taxpayer.” Id. at 1137. For the same reasons, we find section 196.161 constitutional and enforceable as applied in this case.

That said, the trial court correctly observed that the revocation statute seems unfair: (a) it is not reciprocal, and (b) Mitchell is thus unable to receive the benefit of an exemption (the homestead tax exemption on the Sugarloaf Key property) to which he concededly would have been entitled had he not claimed the exemption on the Key West home. This is so because a taxpayer is barred by sections 194.171(2) and (6), Florida Statutes (2010), from claiming the homestead tax exemption for prior years sixty days after certification of the tax roll or rendition of a value adjustment board decision. If a property owner inadvertently fails to claim a homestead tax exemption for prior years for which he or she is demonstrably entitled to claim the exemption, after that deadline the property owner has no remedy. But if the property appraiser delays in contesting a claim of exemption, there is no equivalent bar. The property appraiser has a ten-year clawback right even after the sixty-day deadline has elapsed.

Nowhere is it written, however, that the legislature must enact reciprocal rules as they relate to exemptions. The remedy for the lack of reciprocity lies with the legislature, not the courts. For these reasons, the final summary judgment in favor of Mitchell for tax years 1999-2006 is reversed, and the case is remanded to the trial court for fact-finding regarding Mitchell’s eligibility for the exemption during those years.

Conclusion

In Case No. 3D10-979, the final judgment in favor of the Monroe County property appraiser and director of the Florida Department of Revenue regarding tax year 2007 is affirmed. In Case No. 3D09-1924, the summary final judgment in favor of Mr. Mitchell regarding tax years 1999 through 2006 is reversed and remanded to the trial court for further proceedings consistent with this opinion.

      . The trial testimony established that Mitchell and his wife hoped to register two minor children of a relative in the school on Sugar-loaf Key, and to provide a more suitable atmosphere for those children than in the “honky-tonk atmosphere of bars and other adult oriented establishments” near Mitchell's Key West residence. To facilitate that, he followed advice that he should change the address on his driver's license and voter’s registration card to the address of his Sugar-loaf Key home.

      . § 196.015, Fla. Stat. (2007).

      . Mitchell’s "Tipsy Coachman” and due process arguments are also unavailing. The Tipsy Coachman doctrine does not apply to grounds not raised in a motion for summary judgment, and the circuit court afforded Mitchell a de novo opportunity to seek a remedy and to be heard.

      . However, one benefit of keeping the homestead exemption on the Key West home (rather than claiming it on the Sugarloaf Key residence) is in the record. The "Save Our Homes” assessed value cap, Art. VII, § 4(d)(1), Fla. Const., provided a greater value differential and savings on the Key West home. The cautionary lessons in this case are that (1) a property tax savings is not a factor affecting "intention to establish a permanent residence” under section 196.015, and (2) if the assessor prevails in a proceeding to revoke the exemption for past years, the property tax exemption cannot then be claimed retroactively for a different Florida residence that actually may have been the taxpayer’s primary residence during those prior years.


author: SUAREZ, J.

text:
    Kevin BROWN, Appellant, v. BETTY K. AGENCIES (USA) LLC, Appellee.
    No. 3D10-1545.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.

      Kishásha B. Sharp, for appellant.
    Hayden, Milliken & Boeringer and William R. Boeringer, for appellee.
    Before SUAREZ, CORTIÑAS, and EMAS, JJ.
   SUAREZ, J.

Kevin Brown (“Brown”) appeals an order granting a motion for summary judgment in favor of Betty K. Agencies (“Betty K”) and dismissing the cause of action with prejudice. We affirm as the action is time-barred under the Carriage of Goods by Sea Act (“COGSA”).

Brown contracted with Betty K. for the shipment of a single crane truck from Miami to the Bahamas. On September 7, 2006, the proposed date of sailing, the crane truck was taken to the dock, pulleys were attached and the crane truck was lifted by the ship’s crane for loading aboard the vessel. In the process of loading, the truck was dropped by the ship’s crane and was damaged. Brown brought suit on January 25, 2008, approximately sixteen months after the incident, alleging breach of the shipping contract and negligence. Betty K. asserted that the one-year statute of limitations barred the action under COGSA. Betty K. moved for summary judgment based on the one-year statute of limitations contained in COGSA. Brown contended that the truck was never loaded onto the ship and that Betty K. was a mere freight forwarder, not a carrier, and therefore COGSA did not apply.

The agreement here is governed by the bill of lading. The bill of lading states that Betty K. was the forwarding agent and also states that the bill of lading is subject to the provisions of COGSA. The record facts demonstrate that Betty K. was the contracting agent for transport of the truck crane and that the damage to the truck crane occurred while it was being loaded onto the carrier. Once the truck crane was fitted with slings and hooked up to the ship’s crane, COGSA became applicable by operation of law. Since Betty K, as the agent of the carrier, rightfully asserted the statute of limitations to bar the negligence claim for the alleged negligence that occurred upon loading, the one-year statute of limitations period applies, and Brown is precluded from bringing the action, as being time-barred. See Neutax, S.A. v. Global Freight Servs., No. 02-21943-Civ., 2002 WL 31962180 (S.D.Fla. Oct. 25, 2002) (holding that COGSA applies in relation to the loading, handling, storage, carriage and discharge of goods); Birdsall, Inc. v. Tramore Trading Co., Inc., 771 F.Supp. 1193 (S.D.Fla.1991) (holding that carrier’s agent was not es-topped from asserting the one-year limitations period of COGSA).

Affirmed.


author: VAN NORTWICK, J.

text:
    Reginald THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0572.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Rehearing Denied May 24, 2011.

      Nancy A. Daniels, Public Defender, and Anthony Cammarata, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Joshua R. Heller and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Reginald Thomas appeals his conviction for selling cocaine within 1000 feet of a school, contrary to section 893.13(l)(c), Florida Statutes (2006), and possession of cocaine with intent to sell within 1000 feet of a school, contrary to section 893.13(l)(c), Florida Statutes (2006). Thomas argues that these dual convictions, which involved the same quantum of cocaine, run afoul of the constitutional prohibition against double jeopardy as these offenses “are degrees of the same offense.” See § 775.021(4)(b)2, Fla. Stat. While the State agrees that Thomas’ convictions do constitute double jeopardy, we must disagree and affirm.

Both Thomas and the State assert that appellant’s two convictions are violations of the same criminal statute, section 893.13(l)(e). Section 893.13(l)(c) provides:

Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feet of the real property comprising a child care facility as defined in s. 402.302 or a public or private elementary, middle, or secondary school between the hours of 6 a.m. and 12 midnight, or at any time in, on, or within 1,000 feet of real property comprising a state, county, or municipal park, a community center, or a publicly owned recreational facility.

Of course, possession of a controlled substance with the intent to sell, manufacture or deliver, regardless of the locale of such possession, is proscribed by section 893.13(l)(a). Similarly, the sale, manufacture or delivery of a controlled substance is proscribed by the same section.

In State v. McCloud, 577 So.2d 939 (Fla.1991), the Florida Supreme Court held that dual convictions for sale of cocaine and possession of cocaine did not constitute double jeopardy and, thus, the two convictions could stand. The defendant in that case was convicted of simple possession and sale. Id. at 940. But, when the Florida Supreme Court reviewed the case upon certification of a question of great public importance, that question was phrased broadly, to wit:

When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband and the crimes occurred after the effective date of section 775.021, Florida Statutes (Supp.1988), is it improper to convict and sentence for both crimes?

We answer the question in the negative and approve in part and quash in part the decision of the Second District.

McCloud, 577 So.2d at 939-40 (footnote omitted).

As the question is worded and answered in McCloud, the instant convictions would not constitute double jeopardy and thus would be permissible. It was apparently of no significance to the Supreme Court that both offenses at issue in McCloud were proscribed by the same statute: section 893.13(1)(a).

Appellant argues that McCloud does not control because there the Supreme Court only considered whether the dual convictions at issue violated subsection (b)3 of section 775.021 and did not consider subsection (b)2. We do not think the holding in McCloud can be so circumscribed. While the defendant in McCloud argued for the applicability of subsection (b)3, the Supreme Court ruled in broader terms:

An offense is a lesser-included offense for purposes of section 775.021(4) only if the greater offense necessarily includes the lesser offense. We conclude that because there are situations, as illustrated by the above cases, where a sale can occur without possession, possession is not an essential element of sale and is therefore not a lesser-included offense.

Id. at 941 (italics removed; emphasis added). This explanation suggests the McCloud court was not focused exclusively on subsection (4)(b)3.

On the authority of McCloud, the Fifth District held in McMullen v. State, 876 So.2d 589 (Fla. 5th DCA 2004), that dual convictions for sale of cocaine within 1,000 feet of a place of worship and possession of the same cocaine with intent to sell or deliver within 1,000 feet of a place of worship did not constitute double jeopardy. Similarly, in Seward v. State, 937 So.2d 767, 768 (Fla. 5th DCA 2006), the Fifth District held on the authority of McCloud that double jeopardy does not arise when a defendant is simultaneously convicted of “sale of cocaine and possession or possession with intent to sell or deliver.”

As noted, both Thomas and the State assert that the two offenses for which Thomas was convicted constitute a violation of a single statutory provision: section 893.13(1)(c). But, in fact, a different statute, section 893.13(1)(a), is the statutory provision which proscribes sale of a controlled substance as well as possession with intent to sell. Subsection (1)(c) merely increases the gravity of the offense and the severity of the penalty when the sale or possession with intent to sell occurs within 1000 feet of a school or day care. See Jennings v. State, 667 So.2d 442 (Fla. 1st DCA 1996)(“Seetion 893.13(1)(a) prohibits the sale and possession with intent to sell of controlled substances whatever the time of day. Subsection (1)(c) merely increases the gravity of the offense and the severity of the penalty when the sale (or possession with intent to sell) occurs within 1000 feet of a school during the time period specified.”). Under the reasoning of McCloud, it makes no difference where the sale and possession occurred because the determinative factor in that case was the difference in the elements of each offense; the elements of the two offenses remain different even when the offenses each occur within 1,000 feet of a school. See McMullen, 876 So.2d 589.

Accordingly, Thomas’ convictions are AFFIRMED.

WEBSTER, and DAVIS, JJ., concur.

      .Section 775.02 l(4)(b), Florida Statutes (2006), provides that it is
      [t]he intent of the Legislature [to impose a conviction] and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity ... to determine legislative intent. Exceptions to this rule of construction are:
      1. Offenses which require identical elements of proof.
      2. Offenses which are degrees of the same offense as provided by statute.
      3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.


text:
    ZAMPELL REFRACTORIES, INC. and Zurich North America, Appellants/Cross-Appellees, v. Randy WELCH, Appellee/Cross-Appellant.
    No. 1D10-5592.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Rehearing Denied May 24, 2011.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellants/Cross-Ap-pellees.
    Bill McCabe, Longwood, and Joseph E. Smith, Ocala, for Appellee/Cross-Appel-lant.
   PER CURIAM.

The employer and carrier appeal an order of the Judge of Compensation Claims (JCC) finding that Claimant did not intentionally misrepresent his condition in an effort to obtain workers’ compensation benefits. Claimant cross-appeals the JCC’s limitation of his attorney’s fee to a guideline fee. We AFFIRM without comment the employer/carrier’s appeal. Because the JCC reserved jurisdiction to determine the amount of the fee, we DISMISS the cross-appeal for lack of jurisdiction. See Se. Recycling v. Cottingim, 728 So.2d 342, 343 (Fla. 1st DCA 1999) (dismissing “portion of order which determines entitlement to attorney’s fees but reserves jurisdiction to set the amount of the fee” for lack of jurisdiction). See also Wometco Enters. v. Cordoves, 650 So.2d 1117 (Fla. 1st DCA 1995) (holding order adjudicating entitlement to attorney’s fee but reserving jurisdiction on amount was “neither a final order not an appealable non-final order”).

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    Keith LANDRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3809.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.
    Rehearing Denied June 2, 2011.

      Keith Landry, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Keith Landry, challenges the trial court’s denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. Pursuant to Appellant’s negotiated plea of nolo conten-dere to the offense of second-degree murder, the trial court sentenced him to seventeen years’ prison, followed by twenty-five years’ probation, with a three-year minimum mandatory for the use of a firearm. After his release from prison, he served over eight years of probation before committing a violation of probation. The trial court revoked his probation and imposed a sentence of twenty-five years’ prison with credit for time served, followed by ten years’ probation, and stayed the incarcerative portion of the sentence, placing Appellant on probation.

Appellant’s original forty-two year sentence was a legal one under section 775.082(3)(a), Florida Statutes (1989), for a first-degree felony punishable by life. His original sentence was a probationary split sentence and, following revocation of probation, the trial court was authorized to impose any sentence it could have originally imposed. § 948.06(2)(b), Fla. Stat. (2009); see Franklin v. State, 545 So.2d 851 (1989). Further, Appellant is es-topped from asserting the illegality of the sentence after he has knowingly taken advantage of its benefits. See Taylor v. State, 690 So.2d 686, 686 (Fla. 5th DCA 1997).

The trial court imposed a legal sentence following Appellant’s violation of probation and he is entitled to no relief regarding his original sentence. Accordingly, we affirm.

AFFIRMED.

MONACO, C.J., GRIFFIN and COHEN, JJ., concur.

      . § 782.04(2), Fla. Stat. (1989).

      . By virtue of a statutory anomaly, a person convicted of a life felony on or after October 1, 1983, and before July 1, 1995, was punishable "by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years,” although one convicted of a first-degree felony punishable by life could receive a sentence exceeding forty years. § 775.082(3)(a)2., Fla. Stat. (2009). See Holloway v. State, 668 So.2d 627, 629 (Fla. 5th DCA 1996) (citing Sterling v. State, 584 So.2d 626 (Fla. 2d DCA 1991)).


text:
    Timothy Norman MOODY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5870.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Rehearing Denied May 19, 2011.
    Sheila Callahan, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   PER CURIAM.

Timothy Norman Moody appeals his convictions for sexual battery on a child, lewd or lascivious molestation, and child abuse. Moody’s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that she was unable to make a good-faith argument that reversible error occurred in the trial court with the exception of several sentencing errors which were preserved by two Florida Rule of Criminal Procedure 3.800(b)(2) motions. After a careful review of the record, we affirm Moody’s convictions on all counts. However, we remand for resentencing with respect to the lewd or lascivious molestation count.

Moody was sentenced on the lewd or lascivious molestation count under the Jessica Lunsford Act (JLA) and thus the crime was designated as a life felony. § 800.04(5)(b), Fla. Stat. (2005). Moody was charged and found guilty of committing the crime of lewd or lascivious molestation occurring on or before July 8, 2004, before the effective date of the JLA. Before the enactment of the JLA, the crime of lewd or lascivious molestation was a first-degree felony. § 800.04(5)(b), Fla. Stat. (2004). Accordingly, the trial court erred by sentencing Moody to a life felony on this count; we, therefore, remand for resentencing. See Perea v. State, 35 So.3d 58, 60 (Fla. 5th DCA 2010).

Affirmed in part and Reversed in part.

WEBSTER, ROWE, and MARSTILLER, JJ., concur.


text:
    Tony HOWARD, Petitioner, v. Angela B. COREY, State Attorney, etc., Respondent.
    No. 1D11-1012.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Rehearing Denied May 31, 2011.
    Tony Howard, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

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