text:
    Bobby Lee CHRISTIAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4495.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2012.

      Bobby L. Christian, Raiford, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   LAWSON, J.

Bobby Lee Christian, Jr., appeals from the denial of his rule 3.800(a) motion to correct illegal sentence. Christian was originally sentenced pursuant to the Florida Youthful Offender Act, sections 958.022-.15, Florida Statutes (2004) (‘Youthful Offender Act”), to concurrent split sentences on charges of aggravated assault against a law enforcement officer (with a firearm) and aggravated battery with a deadly weapon. After serving the prison portion of these sentences, and while on youthful offender probation, Christian violated his probation by using marijuana. Although Christian was not charged with a new crime related to his illicit drug use, he did admit to using marijuana. Upon accepting Christian’s admission to this violation of probation, the trial court revoked his probation and sentenced him to concurrent terms of ten years in state prison on the charges. Christian argues that these sentences violate a provision in the Youthful Offender Act which provides that: “[N]o youthful offender shall be committed ... for a substantive violation [of probation] for a period longer than the maximum sentence for the offense for which he or she was found guilty, ... or for a technical or nonsubstantive violation for a period longer than 6 years.” § 958.14, Fla. Stat. (2004). Christian argues that his violation cannot be classified as substantive because the State did not charge and convict him of any new crime related to his illicit drug use. As such, he argues that this violation must be classified as technical or nonsubstantive, and that he could only be sentenced to six years in prison. We reject this argument based upon our precedent in Robinson v. State, 702 So.2d 1346 (Fla. 5th DCA 1997) (holding that illicit drug use, because it is also a crime, constitutes a substantive violation of youthful offender probation). In Robinson, as in this case, the state did not file new charges based upon the illicit drug use.

We have repeatedly and consistently followed Robinson. See, e.g., Drost v. State, 995 So.2d 1142 (Fla. 5th DCA 2008); Schneider v. State, 929 So.2d 1121 (Fla. 5th DCA 2006); Stevenson v. State, 869 So.2d 644 (Fla. 5th DCA 2004); Washington v. State, 840 So.2d 442 (Fla. 5th DCA 2003); Hardy v. State, 706 So.2d 42 (Fla. 5th DCA 1998). And, Robinson has been cited with approval by the Florida Supreme Court, see State v. Meeks, 789 So.2d 982, 985-86 (Fla.2001), and by all but one of Florida’s other district courts of appeal. See, e.g., Meeks v. State, 754 So.2d 101 (Fla. 1st DCA 2000), approved, 789 So.2d 982 (Fla.2001); Swilley v. State, 781 So.2d 458, 460-61 (Fla. 2d DCA 2001); Thompson v. State, 945 So.2d 627, 628 (Fla. 4th DCA 2006). Although not citing to Robinson, the Third District has also repeatedly held that new criminal conduct constitutes a substantive violation of youthful offender probation, irrespective of whether the conduct results in new charges or convictions. See, e.g., Flores v. State, 46 So.3d 102 (Fla. 3d DCA 2010), rev. granted, 58 So.3d 260 (Fla.2011); Morency v. State, 955 So.2d 67, 68 n. 1 (Fla. 3d DCA 2007).

On appeal, however, Christian argues that our holding in Robinson should be viewed as conflicting with Rogers v. State, 972 So.2d 1017 (Fla. 4th DCA 2008), which contains language suggesting that a new crime may only be classified as a substantive violation of youthful offender probation where the defendant is “charged by information -with the new, substantive offense,” id. at 1019, and independently convicted of the new charge(s). Id. at 1020. If this was the intended holding of Rogers, then we agree that Rogers would be in conflict with Robinson, as well as most of the cases cited above following Robinson, including other cases from the Fourth District, see, e.g., Thompson, 945 So.2d at 628, and the Third District’s recent Flores decision.

More importantly, no such holding could be squared with the plain language of section 958.14, Florida Statutes. That statute limits sentencing for technical violations of youthful offender probation to six years, but cannot reasonably be read as adding new evidentiary requirements or procedural hurdles that the state must meet to prove either a technical or substantive violation of probation for youthful offender cases. Cf. Hayes v. State, 750 So.2d 1, 4 (Fla.1999) (“[Courts] are not at liberty to add words to statutes that were not placed there by the Legislature.”). Florida’s courts have long held that criminal conduct may be established in a violation of probation hearing (as a basis for revoking probation) by a preponderance of the evidence, even where the defendant is acquitted of new charges based upon the same conduct. See, e.g., Russ v. State, 313 So.2d 758 (Fla.), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975). We have never imposed a requirement that the state independently prosecute new criminal charges in order to allege the conduct as a violation of probation. See, e.g., State v. Tuthill, 545 So.2d 850, 851 (Fla.1989); Swilley, 781 So.2d at 460. Clearly, if the legislature had intended to add additional procedural or proof requirements to the state’s burden of establishing probationary violations for youthful offenders, whether technical or substantive, “it could easily have said so.” Fla. Wildlife Fed’n v. State, Dep’t of Envtl. Regulation, 390 So.2d 64, 67 (Fla.1980) (courts “presume legislative awareness of the law”). We also point out that in the fifteen years since we decided Robinson, the legislature has repeatedly amended the Youthful Offender Act without adding any language to impose the requirements which Christian advocates for based upon his reading of Rogers. See Goldenberg v. Sawczak, 791 So.2d 1078, 1081 (Fla.2001) (“Long-term legislative inaction after a court construes a statute amounts to legislative acceptance or approval of that judicial construction.”).

In addition, we note that the Third District in Flores addressed Rogers in some detail, explaining why Rogers should not be read as requiring conviction on new offense(s) in order to establish a substantive violation of youthful offender probation (and thereby bypass the six-year cap for youthful offender sentences). We agree with the Third District’s reading of Rogers, and see no conflict among the districts on this issue. However, it appears that the Florida Supreme Court has accepted review of Flores, pursuant to its conflict jurisdiction, based upon an argument that Flores conflicts with Rogers. If Flores does conflict with Rogers on this issue, then our precedent also conflicts with Rogers. Seeing no reason to revisit our longstanding precedent, which in our view accurately interprets section 958.14, we elect to certify conflict with Rogers (even though we see no conflict) in light of our Supreme Court’s current review of Flores.

Because we believe that a more thorough discussion of the four issues addressed by Florida’s courts relating to the Youthful Offender Act may help clear up the confusion that underpins Christian’s argument in this case, we will now address those issues. Those issues are: (1) the sentencing features (including limitations) applicable to youthful offender sentences; (2) how a trial court’s decision to sentence a defendant on an offense pursuant to the Youthful Offender Act affects future sentencing proceedings relating to that offense; (3) youthful offender classification within the Department of Corrections; and (4) whether a trial court’s decision to sentence a defendant pursuant to the Youthful Offender Act affects sentencing for new offenses committed while the defendant is serving his or her youthful offender sentence. In discussing these issues, we will occasionally use the phrase “youthful offender status.” Although that phrase is not found in the Youthful Offender Act, its use in differing contexts (to mean different things) may have helped create the confusion that we will now attempt to clear up.

Issue 1: Features and Limitations of a Youthful Offender Sentence.

With passage of the Youthful Offender Act in 1978, see Chapter 78-84, Laws of Florida, the legislature created an alternative sentencing scheme available to judges when sentencing a criminal defendant younger than 21 years of age at the time of sentencing. § 958.04(1), Fla. Stat. (2011). Youthful offender sentencing is not available for defendants guilty of a capital or life felony, see section 958.04(l)(c), Florida Statutes (2011), or for defendants who have been sentenced pursuant to the Youthful Offender Act for a prior offense. Id.

The youthful offender sentencing feature most often addressed by the courts is the six-year sentencing limit applicable, under the current version of the statute, to the original sentence on an offense and to any sentence imposed following a technical or non-substantive violation of probation. See § 958.14, Fla. Stat. (2011). It is important to note that prior versions of the statute contained a six-year cap on all youthful offender sentences, with no exceptions. See, e.g., § 958.14, Fla. Stat. (1989) (“However, no youthful offender should be committed to the custody of the department for such violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he was found guilty, whichever is less ... ”). This meant that a trial judge sentencing a defendant who had violated youthful offender probation, even with a substantive violation, could impose no more than six years in state prison when sentencing on the underlying charge following the probationary violation. State v. Watts, 558 So.2d 994 (Fla.1990). The language providing for sentencing above this cap, for substantive violations of probation, was added by the legislature in 1990. See Ch. 90-208, § 19, Laws of Fla.

Another feature of youthful offender sentencing is that none of Florida’s minimum mandatory sentencing statutes apply to a sentence imposed pursuant to the Youthful Offender Act. See, e.g., Mendez v. State, 835 So.2d 348 (Fla. 4th DCA 2003). This is because a “sentence imposed under the Act is ‘[i]n lieu of other criminal penalties authorized by law....’” Id. at 349 (quoting § 958.04(2), Fla. Stat. (2001)).

Finally, section 958.04(2)(d) affords defendants sentenced as a youthful offender an opportunity to have his or her sentence modified or reduced, upon recommendation by the Department of Corrections, “for successful participation in the youthful offender program ...” Id.

Issue 2: Effect of Youthful Offender Sentencing on a Subsequent Sentence for the Same Offense (ie., Upon a Violation of Probation).

In State v. Arnette, 604 So.2d 482 (Fla.1992), the Florida Supreme Court held that once a defendant is sentenced as a youthful offender, the sentencing features (and limitations) of the Youthful Offender Act apply to future sentencing proceedings on that same offense (i.e., after a violation of probation). That principle is straightforward, and nothing in the Act has changed since Amette to alter that broad holding. In its discussion of this issue, however, the Court used the term “youthful offender status” to describe a defendant sentenced pursuant to the Youthful Offender Act (and who therefore benefited from the features and limitations of youthful offender sentencing). Therefore, the holding (that once a defendant is sentenced as a youthful offender, the sentencing features of the Act apply to future sentencing proceedings on that offense) was expressed as follows: “youthful offenders maintain youthful offender status even when they violate a condition of community control.” Id. at 484.

What can be confusing about that pronouncement is that Amette, although decided in 1992, dealt with the pre-1990 version of the Youthful Offender Act (before the Act was amended to provide for sentencing above the six-year cap following a substantive violation of youthful offender probation). See id.; see also Johnson v. State, 678 So.2d 934 (Fla. 3d DCA 1996). So, the practical effect of the ruling was that the defendant in that case could not be sentenced above the six-year cap. But, even as of the date that Amette was decided, the Youthful Offender Act had already been amended to provide for a youthful offender sentence above the cap following a substantive violation of probation. Id. If focusing on the practical issue (application of the six-year cap), it would be easy to equate the term “youthful offender status” with a sentence limited by the cap.

This confusion is evidenced by the number of district court opinions still being issued (now a decade after Amette) to clarify that even when a youthful offender is sentenced above the cap following a substantive violation of probation, the defendant still maintains his or her “youthful offender status.” See, e.g., Mosley v. State, 77 So.3d 877 (Fla. 2d DCA 2012); Perez v. State, 75 So.3d 815 (Fla. 2d DCA 2011); Eustache v. State, 83 So.3d 784 (Fla. 4th DCA 2011); Lee v. State, 67 So.3d 1199 (Fla. 2d DCA 2011); Vantine v. State, 66 So.3d 350 (Fla. 2d DCA 2011); Blacker v. State, 49 So.3d 785 (Fla. 4th DCA 2010); Johnson v. State, 41 So.3d 1115 (Fla. 4th DCA 2010). It might be less confusing if we dropped the phrase “youthful offender status” and simply explained that the longer sentence was still imposed pursuant to the Youthful Offender Act, and that other features of youthful offender sentencing still apply. But, irrespective of the terminology used, the issue is particularly significant in cases where the charge would carry a minimum mandatory prison term if the trial judge had not originally opted for a youthful offender sentence. See, e.g., Blacker. The issue is also significant in terms of the next topic we will address—youthful offender classification within the Department of Corrections.

Issue 3: Youthful Offender Classification within Department of Corrections.

Section 958.11, Florida Statutes, requires the Department of Corrections to “designate separate institutions and programs for youthful offenders.” These programs and facilities are required to be made available to offenders sentenced pursuant to the Youthful Offender Act, as well as to any other inmate who meets certain qualifications and is classified by the Department of Corrections as a youthful offender (even though not sentenced as such by the court). In fact, the Youthful Offender Act expressly defines the term “youthful offender”' to mean “any person who is sentenced as such by the court or is classified as such” by the Department. § 958.03(5), Fla. Stat. (2011). In addition to special programs and facilities, youthful offenders sentenced to the Department of Corrections can be afforded other special privileges, such as the ability to “leave the place of his or her confinement for a prescribed period of time” to “visit a designated place or places” or to “arrang[e] for employment or for a suitable residence for use when released” or to “work at paid employment” or “participate in an educational or a training program,” or for other reasons. § 958.09, Fla. Stat. (2011).

The Department may only place a youthful offender in a non-youthful offender facility under limited circumstances, such as when the youthful offender has been convicted of a new felony offense, see § 958.11(3)(a), Fla. Stat. (2011), or “becomes such a serious management or disciplinary problem” that assignment to a youthful offender facility “would be detrimental to the interests of the [youthful offender] program and to other inmates committed thereto.” § 958.11(3)(b), Fla. Stat. (2011).

For obvious reasons, youthful offenders who have received sentences above the six-year cap have sought to clarify that the longer sentence is still a youthful offender sentence simply to assure that they receive the initial classification preference within the Department of Corrections. See, e.g., Lee v. State, 67 So.3d 1199, 1202 n. 1 (Fla. 2d DCA 2011). In this context, the term “youthful offender status” could be understood as referring either to the fact that the sentence was imposed pursuant to the Youthful Offender Act, or to the defendant’s youthful offender classification within the Department.

(i) Whether a Trial Court’s Decision to Sentence a Defendant Pursuant to the Youthful Offender Act Affects Sentencing for New Offenses Committed while the Defendant is Serving His or Her Youthful Offender Sentence.

In Boynton v. State, 896 So.2d 898 (Fla. 3d DCA 2005), the court dealt with a creative argument by a defendant who had committed new offenses while serving a youthful offender sentence. He argued that because he was a youthful offender at the time he committed the new offenses, the trial court was required to sentence him as a youthful offender on the new offenses as well. That argument is nothing more than a misapplication of the holding in Amette that: “youthful offenders maintain youthful offender status even when they violate a condition of community control [by committing a new offense].” Id. at 484. That holding dealt only with the affect of a community control violation (in that case, a new crime violation) on sentencing for the original offense. As to any new offenses, of course, the Youthful Offender Act itself expressly bars youthful offender sentencing for a defendant previously sentenced as a youthful offender. § 958.04(l)(c), Fla. Stat. (2011). Accordingly, the Boynton panel properly rejected the argument, stating: “a defendant previously classified as a youthful offender who is subsequently charged with substantive offenses, and not with a mere violation of probation / community control, is not entitled to be sentenced as a youthful offender upon conviction of the new, substantive offenses.” This language dealt with the only issue presented in Boynton — sentencing on the new offenses.

However, as discussed in Flores, it appears that the Fourth District (in Rogers ) misread Boynton as holding that a defendant who is charged and convicted of a new offense while on youthful offender probation loses his “youthful offender status” with respect to the original youthful offender sentence. This statement could be correct if by “youthful offender status” the court was referring to a defendant’s classification within the Department of Corrections. As previously noted, section 958.11(3)(a), Florida Statutes, allows the Department of Corrections to essentially reclassify a youthful offender, and transfer that inmate into a regular prison facility, if the offender is convicted of a new felony offense. However, it appears that the Rogers panel read Boynton to mean that the sentencing features of the Youthful Offender Act no longer apply at all to a sentence imposed following a substantive violation of youthful offender probation if the state also separately charges and convicts the defendant of the new offense. This is clearly not the holding of Boynton, and would be inconsistent with Amette and the plain language of the Youthful Offender Act itself. Rather, under Ar-nette, even if a youthful offender violates probation (or community control) with a new offense, and is separately charged and convicted of the new offense, he or she is still entitled to be sentenced as a youthful offender on the original offense. Even though the six-year cap does not apply to a youthful offender sentence imposed following a substantive violation of probation, other important sentencing features of the Youthful Offender Act could affect the sentence. This is especially important for crimes carrying a minimum mandatory prison term for sentences imposed outside of the Youthful Offender Act.

To further exacerbate the problem, in our case, as in Flores, Christian is now misreading the language in Rogers as holding that in order to prove a substantive violation of youthful offender probation, the State must separately charge and successfully prosecute a youthful offender of a new criminal offense. In other words, in this case, Christian misreads the phrase “youthful offender status” as referring to a youthful offender sentence limited by the six-year cap. As explained in Flores, that was not the holding of Rogers.

Conclusion

In summary, cases addressing different aspects of the Youthful Offender Act appear to conflict because the phrase “youthful offender status” has been used to mean different things in different contexts. However, when one focuses on the precise issue being addressed in each case, the case law makes sense and harmonizes relatively well. We settled the issue addressed in this case — what proof is required to establish a substantive violation of youthful offender probation — many years ago in Robinson. The issue has been addressed repeatedly by Florida’s courts, and we have found no case holding that a substantive violation of probation may only be established if the state separately charges and convicts a defendant of a new crime. In Rogers, for example, the Fourth District affirmed a 15-year prison sentence after the state proved a substantive violation of probation (the new crime of burglary) at a violation of probation hearing. In that case, there was “no record evidence that appellant was ever charged by information with this [burglary] offense.” Id. at 1019 n. 1.

AFFIRMED; CONFLICT CERTIFIED.

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

      . Christian raised a similar issue in a prior 3.850 motion, in which he argued that his trial counsel was ineffective for failing to object to the ten-year sentence. The trial court denied that motion on the merits, and Christian filed an untimely appeal, which we dismissed for lack of jurisdiction. The trial court denied the instant 3.800(a) motion as successive. As the issues raised in the motions are practically the same, the 3.800(a) motion is arguably successive. Cf. State v. McBride, 848 So.2d 287 (Fla.2003). This would serve as an additional reason for an affirmance.

      . See, e.g., Ch. 98-204, § 21, Laws of Fla.; Ch. 98-280, § 61, Laws of Fla.; Ch. 2004-373, § 38, Laws of Fla.; Ch. 2007-2, § 8, Laws of Fla.; Ch. 2008-250, § 7, Laws of Fla.

      . This is the age requirement in the current version of the Youthful Offender Act. Under the earlier version, eligibility for youthful offender sentencing was determined based upon the age of the defendant at the time of the offense. § 958.04, Fla. Stat. (1998).

      . In Meeks, the Florida Supreme Court construed "substantive violation of probation” narrowly, as only including criminal activity. Id., 789 So.2d at 989. That case, however, did not hold that the new crime had to be separately charged, or proven any differently than any other violation of probation. Id. And, as noted previously, Meeks cited approvingly to Robinson, as well as other District Court cases upholding trial court findings of substantive (new crime) violations of probation with no indication that the criminal conduct had been separately charged and prosecuted.

      . This reduction of sentence benefit also applies to inmates who are not sentenced by the court as a youthful offender, but are nonetheless classified as a youthful offender by the Department of Corrections. § 958.04(2)(d), Fla. Stat. (2011).

      . The Youthful Offender Act also requires the Department to operate a "basic training” program for youthful offenders, see § 958.045, Florida Statutes (2011), and authorizes courts to sentence youthful offenders to county-operated "boot camp” programs in lieu of prison. § 958.046, Fla. Stat. (2011). Youthful offenders within the Department of Corrections may also be afforded other privileges, such as "the extension of the limits of the place of confinement” (i.e., housing outside of a prison or release for work, voluntary service, or to "participate in an educational or a training program”). § 958.09, Fla. Stat. (2011).

      . In Goldwire v. State, 73 So.3d 844 (Fla. 4th DCA 2011), another Fourth District panel appears to have mislabeled a youthful offender sentence above the six-year cap (as now authorized by the Youthful Offender Act itself following a substantive violation of probation) as a "non-youthful offender sentence.” Id. at 846. This mislabeling caused the panel to conclude (erroneously, in our view) that the trial court had the discretion to avoid other sentencing features applicable to a youthful offender sentence, and impose a firearm minimum mandatory following a substantive violation of probation. Id. We do not believe that Amette permits this result. See Arnette, 604 So.2d at 484 (“youthful offenders maintain youthful offender status even when they violate a condition of community control”). Although the legislature amended the version of Youthful Offender Act at issue in Amette to authorize a youthful offender sentence above the six-year cap following a substantive violation of probation, the statute has not been amended to authorize imposition of a non-youthful offender sentence following a substantive violation. Nor has the statute been amended to authorize variation from any other feature of a youthful offender sentence following a substantive violation of probation.


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    Paul COUCHMAN, Appellant, v. UNIVERSITY OF CENTRAL FLORIDA, Appellee.
    No. 5D11-3456.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2012.

      Bruce D. Lamb of Gunster, Yoakley & Stewart, P.A., Tampa, for Appellant.
    Youndy C. Cook, Office of the General Counsel, University of Central Florida, Orlando, for Appellee.
   ON MOTION TO DISMISS OR TRANSFER FOR LACK OF JURISDICTION EN BANC

EVANDER, J.

The University of Central Florida (UCF) has filed a Motion to Dismiss or Transfer for Lack of Jurisdiction an appeal filed by UCF student Paul Couchman. Couchman is seeking review of UCF’s decision to impose certain disciplinary sanctions against him. The underlying issue is whether UCF is an administrative body subject to Florida’s Administrative Procedure Act (APA) when, in purported compliance with rules and regulations adopted by UCF’s Board of Trustees, it takes disciplinary action against a student for alleged improper conduct. If so, Couchman is entitled to seek judicial review in this court pursuant to sections 120.68(1) and (2)(a), Florida Statutes (2011) (“A party who is adversely affected by final agency action is entitled to judicial review.... Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law”). If not, then Couchman’s proper remedy is to seek certiorari review in the circuit court. See Fla. Water Servs. Corp. v. Robinson, 856 So.2d 1035 (Fla. 5th DCA 2003) (party seeking to challenge decision of administrative body, acting in its quasi-judicial capacity, is entitled to present its due process claim, but only by presenting petition for certiorari review to the circuit court where administrative body is not subject to APA). We conclude that when UCF is acting as a student disciplinary entity pursuant to its duly adopted rules and regulations, it does not come within the definition of an “agency” subject to the APA, and therefore this action must be transferred to circuit court.

The APA applies only to those administrative bodies that come within the Act’s definition of an “agency.” In re Advisory Opinion of the Governor, 334 So.2d 561, 562 n. 2 (Fla.1976). Section 120.52(1) defines “agency” to mean

the following officers or governmental entities if acting pursuant to powers other than those derived from the constitution:
(a)... the Board of Governors of the State University System; ... educational units; ....

(Emphasis added). “Educational unit” includes a state university “when the university is acting pursuant to statutory authority derived from the Legislature.” § 120.52(6), Fla. Stat. (2011).

Thus, by its express terms, the APA only applies to a state university when the university is acting pursuant to statutory authority from the Legislature. See also § 1001.706(2)(b), Fla. Stat. (2011). When a state university is acting pursuant to authority derived from Florida’s Constitution, the APA does not apply. NAACP, Inc. v. Fla. Bd. of Regents, 876 So.2d 636 (Fla. 1st DCA 2004) (where State University System’s Board of Governors adopts rules pursuant to powers derived from the Constitution, said rules are not subject to challenge under APA).

Prior to November 2002, Florida’s state universities’ governing boards derived their authority from the Legislature. NAACP, 876 So.2d at 638. However, in November 2002, Florida voters approved an amendment to article IX of the Florida Constitution, providing:

SECTION 7. State University System.—
(a) PURPOSES. In order to achieve excellence through teaching students, advancing research and providing public service for the benefit of Florida’s citizens, their communities and economies, the people hereby establish a system of governance for the state university system of Florida.
(b) STATE UNIVERSITY SYSTEM. There shall be a single state university system comprised of all public universities. A board of trustees shall administer each public university and a board of governors shall govern the state university system.
(c) LOCAL BOARDS OF TRUSTEES. Each local constituent university shall be administered by a board of trustees consisting of thirteen members dedicated to the purposes of the state university system. The board of governors shall establish the powers and duties of the boards of trustees. Each board of trustees shall consist of six citizen members appointed by the governor and five citizen members appointed by the board of governors. The appointed members shall be confirmed by the senate and serve staggered terms of five years as provided by law. The chair of the faculty senate, or the equivalent, and the president of the student body of the university shall also be members.
(d) STATEWIDE BOARD OF GOVERNORS. The board of governors shall be a body corporate consisting of seventeen members. The board shall operate, regulate, control, and be fully responsible for the management of the whole university system. These responsibilities shall include, but not be limited to, defining the distinctive mission of each fituent university and its articulation with free public schools and community colleges, ensuring the well-planned coordination and operation of the system, and avoiding wasteful duplication of facilities or programs. The board’s management shall be subject to the powers of the legislature to appropriate for the expenditure of funds, and the board shall account for such expenditures as provided by law. The governor shall appoint to the board fourteen citizens dedicated to the purposes of the state university system. The appointed members shall be confirmed by the senate and serve staggered terms of seven years as provided by law. The commissioner of education, the chair of the advisory council of faculty senates, or the equivalent, and the president of the Florida student association, or the equivalent, shall also be members of the board.

(Emphasis added).

The Board of Governors created by this amendment came into existence on January 7, 2003.

In accordance with the aforesaid amendment to article IX of the Florida Constitution, the Florida Legislature has attempted to define and distinguish the respective constitutional duties and responsibilities accorded to the Board of Governors and the Legislature. While the Legislature continues to maintain the responsibility to, inter alia, appropriate state funds for the establishment, maintenance and operation of institutions of higher learning, it also recognized that the Board of Governors had the constitutional duty to operate, regulate, control, and be fully responsible for the management of the State University System. § 1001.705(2), (3), Fla. Stat. (2011).

As further recognized by the Legislature, the constitutional powers of the Board of Governors (and its designee boards of trustees) include the authority to adopt and enforce a code of conduct for its students. For example, section 1001.706(3)(h) provides:

The Board of Governors, or the board’s designee, may establish a uniform code of conduct and appropriate penalties for violations of its regulations by students and student organizations, including regulations governing student academic honesty. Such penalties, unless otherwise provided by law, may include reasonable fines, the withholding of diplomas or transcripts pending compliance with regulations or payment of fines, and the imposition of probation, suspension, or dismissal.

Pursuant to Florida Board of Governors Regulation 1.001, the Board of Governors delegated broad constitutional authority to the university boards of trustees to administer their respective universities. These broad powers included the power to adopt rules and regulations establishing a uniform student code of conduct and related penalties. Fla. Bd. of Govs. Reg. 1.001(4)(a)(10) (as amended Sept. 16, 2010). Here, Couchman was alleged to have violated UCF’s student code of conduct as established by its Board of Trustees. Because UCF’s power to adopt and enforce a student code of conduct derived from the Florida Constitution and not from the Legislature, its actions are not subject to challenge under the APA. We recede from Morris v. Florida Agricultural & Mechanical University, 23 So.3d 167 (Fla. 5th DCA 2009), to the extent that decision is inconsistent with this opinion.

UCF’s motion is granted to the extent that we hereby transfer this cause to the Ninth Judicial Circuit Court, in and for Orange County, Florida.

MOTION GRANTED; CASE TRANSFERRED.

ORFINGER, C.J., GRIFFIN, SAWAYA, PALMER, MONACO, TORPY, LAWSON, COHEN and JACOBUS, JJ., concur.

      .
      CONSTITUTIONAL DUTIES OF THE LEGISLATURE-In accordance with s. 3, Art. II of the State Constitution, which establishes the separation of powers of three branches of government; s. 1, Art. Ill of the State Constitution, which vests the legislative power of the state in the Legislature; s. 8, Art. Ill of the State Constitution, which provides the exclusive executive veto power of the Governor and the exclusive veto override power of the Legislature; s. 19, Art. Ill of the State Constitution, which requires the Legislature to enact state planning and budget processes and requirements for budget requests by general law; s. 1, Art. VII of the State Constitution, which requires that the authority to expend state funds be by general law enacted by the Legislature; and s. 1, Art. IX of the State Constitution, which requires the Legislature to make adequate provision by law for the “establishment, maintenance, and operation of institutions of higher learning,” the Legislature has the following responsibilities:
      (a)Making provision by law for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.
      (b) Appropriating all state funds through the General Appropriations Act or other law.
      (c) Establishing tuition and fees.
      (d) Establishing policies relating to merit and need-based student financial aid.
      (e) Establishing policies relating to expenditure of, accountability for, and management of funds appropriated by the Legislature or revenues authorized by the Legislature. This includes, but is not limited to, policies relating to: budgeting; deposit of funds; investments; accounting; purchasing, procurement, and contracting; insurance; audits; maintenance and construction of facilities; property; bond financing; leasing; and information reporting.
      (f) Maintaining the actuarial and fiscal soundness of centrally administered state systems by requiring state universities to continue to participate in programs such as the Florida Retirement System, the state group health insurance programs, and the state casualty insurance program.
      (g) Establishing and regulating the use of state powers and protections, including, but not limited to, eminent domain, certified law enforcement, and sovereign immunity.
      (h) Establishing policies relating to the health, safety, and welfare of students, employees, and the public while present on the campuses of institutions of higher learning.
      § 1001.705(3), Fla. Stat. (2011).

      .
      (2) CONSTITUTIONAL DUTIES OF THE BOARD OF GOVERNORS OF THE STATE UNIVERSITY SYSTEM.—
      In accordance with s. 7, Art. IX of the State Constitution, the Board of Governors of the State University System has the duty to operate, regulate, control, and be fully responsible for the management of the whole publicly funded State University System and the board, or the board’s designee, has responsibility for:
      (a) Defining the distinctive mission of each constituent university.
      (b) Defining the articulation of each constituent university in conjunction with the Legislature's authority over the public schools and Florida College System institutions.
      (c) Ensuring the well-planned coordination and operation of the State University System.
      (d) Avoiding wasteful duplication of facilities or programs within the State University System.
      (e) Accounting for expenditure of funds appropriated by the Legislature for the State University System as provided by law.
      (f) Submitting a budget request for legislative appropriations for the institutions under the supervision of the board as provided by law.
      (g) Adopting strategic plans for the State University System and each constituent university.
      (h) Approving, reviewing, and terminating degree programs of the State University System.
      (i) Governing admissions to the state universities.
      (j) Serving as the public employer to all public employees of state universities for collective bargaining purposes.
      (k) Establishing a personnel system for all state university employees; however, the Department of Management Services shall retain authority over state university employees for programs established in ss. 110.123, 110.1232, 110.1234, 110.1238, and 110.161, and in chapters 121, 122, and 238.
      Cl) Complying with, and enforcing for institutions under the board’s jurisdiction, all applicable local, state, and federal laws.
      § 1001.705(2), Fla. Stat. (2011).

      . In Morris, neither party raised nor addressed the issue of whether the amendment to Article IX of the Florida Constitution would limit the application of the APA to state universities.


author: PER CURIAM. EVANDER, J.,

text:
    Todd Michael HANNIGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3315.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M.' Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The trial court’s entry of a judgment of conviction on the drug trafficking charge brought against Hannigan is affirmed. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011).

We also conclude that the imposition of a fifteen-year mandatory minimum prison sentence in this case did not violate the cruel and unusual punishment clauses of the United States and Florida Constitutions. See Paey v. State, 943 So.2d 919 (Fla. 2d DCA 2006).

The mandate will be withheld pending final disposition of Adkins.

AFFIRMED.

SAWAYA and PALMER, JJ., concur.

EVANDER, J., concurs and concurs specially, with opinion.

EVANDER, J.,

concurring, and concurring specially.

Hannigan was convicted of trafficking in hydrocodone based on his possession of thirty-one hydrocodone tablets having a total weight of 22.2 grams. The trial court imposed a fifteen-year mandatory minimum prison sentence pursuant to section 893.135(l)(c)l.b., Florida Statutes (2009):

(c)l. Any person ... who is knowingly in actual or constructive possession of, 4 grams or more of ... hydrocodone ... commits a felony of the first degree, which felony shall be known as “trafficking in illegal drugs,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If the quantity involved:
b. Is 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years, and the defendant shall be ordered to pay a fine of $100,000.

Hannigan presented evidence that he took possession of his mother’s hydroco-done for the purpose of committing suicide. It is unclear from the record whether the trial court found his testimony to be credible. Even if the trial court accepted Hannigan’s story, I would reluctantly conclude that the statute, as applied to such facts, would not contravene the United States and Florida Constitutions’ prohibition against cruel and unusual punishment. Courts are to grant substantial deference to the legislature’s determination of criminal punishment because it is the legislature, not the judiciary, that establishes the maximum and minimum penalties for violations of the law. See State v. Benitez, 395 So.2d 514, 518 (Fla.1981).

Outside the context of capital punishment, successful challenges to the proportionality of a sentence are “exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (upholding imposition of mandatory life sentence under Texas recidivist statute where defendant’s third felony conviction was for obtaining $120.75 by false pretenses); see Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (upholding sentence of twenty-five years to life for theft of golf clubs under California’s “Three Strikes and You’re Out” law); Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (imposition of life imprisonment sentence for trafficking in cocaine did not constitute cruel and unusual punishment notwithstanding defendant’s lack of prior felony convictions); Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (sentence of two consecutive terms of twenty years’ imprisonment for possession with intent to distribute nine ounces of marijuana and distribution of marijuana was constitutional). But see Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (sentence of life imprisonment without possibility of parole constituted cruel and unusual punishment where defendant was convicted of uttering “no account” check for $100.00 under South Dakota’s recidivist statute and his prior felonies were “relatively minor”).

Hannigan’s constitutional argument is weakened by the fact that he had five prior felony convictions and was in possession of the hydrocodone in a public park near children. Notwithstanding these facts, if Hannigan’s possession of the hydrocodone was indeed solely for the purpose of taking his own life, then the required imposition of a fifteen-year mandatory minimum prison sentence resulted in a gross injustice.

      . Amend. VIII, U.S. Const.

      . Art. I, § 17, Fla. Const.


author: PER CURIAM.

text:
    Juan PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4018.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2012.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING.

PER CURIAM.

We grant the motion for rehearing filed by Appellant, Juan Perez, withdraw our earlier per curiam affirmance, and substitute the following opinion in its place.

We affirm and write to address only one issue. As to the Shelton issue, we affirm based on Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court. State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

AFFIRMED.

SAWAYA, PALMER and JACOBUS, JJ., concur.

      . Shelton v. Sec’y, Dep’t of Corr., 802 F.Supp.2d 1289 (M.D.Fla.2011).


text:
    Tomario D. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2303.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Tomario D. Johnson, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm this Anders appeal but remand to correct a scrivener’s error in the judgment. Although the jury found Appellant guilty of attempted robbery with a firearm, not robbery with a firearm, the judgment reflects a conviction for robbery with a firearm. The twenty-five-year minimum mandatory sentence is nevertheless legal because Appellant discharged a firearm that resulted in serious bodily harm to the victim. § 775.087(2)(a)3. & (c), Fla. Stat. (2010). On remand, the judgment should be corrected in accordance with the jury verdict to reflect that Appellant was convicted of attempted robbery with a firearm.

AFFIRMED AND REMANDED.

PALMER, TORPY and EVANDER, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Mark SHAWVER, Appellant, v. Anthony SCARVELLI, Appellee.
    No. 5D11-3199.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2012.

      Thomas H. Yardley, Cocoa, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Mark Shawver timely appeals a final judgment of injunction for protection against repeat violence entered against him in favor of Anthony Scarvelli. He argues that the trial court erred by entering the injunction where the petition only alleged one act of violence and the evidence presented by petitioner was only sufficient to support a finding of one act of violence. We agree. See § 784.046(2)(b), Fla. Stat. (2011) (“ ‘Repeat violence’ means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.”); see also Power v. Boyle, 60 So.3d 496 (Fla. 1st DCA 2011) (explaining that an injunction for protection against repeat violence cannot be entered absent a finding of two incidents of violence or stalking, which must be supported by competent substantial evidence). Accordingly, we reverse the final judgment and remand with directions that the trial court vacate the injunction and dismiss the petition.

REVERSED AND REMANDED WITH DIRECTIONS.

MONACO, LAWSON and EVANDER, JJ., concur.


text:
    Christopher Laron BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5B11-3412.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2012.
    James S. Purdy, Public Defender, and David S. Morgan, 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. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

GRIFFIN, SAWAYA and JACOBUS, JJ., concur.


text:
    Jackie Junior LIGE, II, Appellant, v. STATE of Florida, Appellee.
    No. 1M1-2547.
    District Court of Appeal of Florida, First District.
    April 9, 2012.
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace and Angela R. Hensel, Assistant Attorneys General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing, withdraw our previous per curiam af-firmance, and substitute the following opinion in its place.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

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


text:
    DEPARTMENT OF REVENUE o/b/o Toya R. MAYWEATHER, Appellant, v. Michael E. MAYWEATHER, Appellee.
    No. 1D11-2823.
    District Court of Appeal of Florida, First District.
    April 9, 2012.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

In light of this Court’s decision in Department of Revenue ex rel. Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011), the final administrative support order being appealed herein is reversed, and the matter is remanded to the Division of Administrative Hearings for further proceedings consistent with Daly.

REVERSED and REMANDED for further proceedings.

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


text:
    M.A., for U.A, Y.A.-R and L.E.-A., Minor Children, Appellants, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D12-0190.
    District Court of Appeal of Florida, First District.
    April 9, 2012.
    Susan Barber, Assistant Regional Counsel, Tallahassee; Radha Rothrock, Roth-rock Law Firm, Bonita Springs, for Appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee; Christina Pumphrey, Dept, of Children & Families, Marianna; Lashan Fagan, Asst. Regional Conflict Counsel, Marianna; Holly H. Hales, Guardian Ad Litem, Marianna; Ward L. Metzger, Children’s Legal Services, Jacksonville; and Kelley Schaeffer, Guardian ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b). This dismissal is without prejudice to the appellant’s right to seek relief in the trial court. See Interest of E.H., 609 So.2d 1289, 1290-1291 (Fla.1992).

ROWE, MARSTILLER, and MAKAR, JJ., concur.


author: DAMOORGIAN, J.

text:
    Joshua Ryan SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4321.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Appellant entered a plea of guilty to burglary of a dwelling and grand theft from a dwelling after the trial court denied his dispositive motion to suppress. He appeals the denial of his motion to suppress, arguing that (i) the initial stop was neither consensual nor supported by reasonable suspicion; (ii) the pat-down was unlawful because the officer did not have any reasonable suspicion to believe Appellant was armed; (iii) the pat-down was not authorized by consent; and (iv) even if the pat-down was permissible, the search of Appellant’s pockets and pants exceeded its scope. Finding merit to Appellant’s second, third, and fourth arguments, we reverse for the reasons discussed herein.

By way of background, before entering a plea of guilty, Appellant moved to suppress all evidence found on him arguing that it was seized in violation of Florida’s Stop and Frisk Law and the Fourth Amendment to the United States Constitution.

At the hearing on Appellant’s motion, the only witness to testify was the officer who seized property from Appellant’s person. The officer had extensive law enforcement training and experience in street crimes. He testified that he had seen Appellant two or three times before the date of his arrest hanging around a middle school with his friends. He knew Appellant had a past criminal history that involved resisting arrest and stealing.

On the date of Appellant’s arrest, the officer responded to a radio dispatch report of a burglary, which had just occurred. It was announced over the radio that a suspect fled into a neighboring development. The officer did not have a description of the suspect or the stolen property. The officer proceeded into the development in his unmarked patrol vehicle. As he pulled into the development, he saw a white male wearing a “very large extra long white shirt and black pants, speed walking southbound.” The individual, later identified as Appellant, was walking briskly toward the back of a home. The officer pulled up behind him and exited his vehicle. He was accompanied by his partner, who also exited the vehicle. He was wearing his street crimes uniform, which has the word “police” written across the chest. When the officer identified himself, Appellant stopped and turned around, whereupon the officer recognized him.

The officer described Appellant’s demeanor as being “very scared.” Appellant was also “breathing very heavily” and “sweating,” and the officer noticed that his “eyes got really wide.” The officer further observed that Appellant’s pants were tucked into his socks with bulges sticking out, “as if he were trying to conceal something.” When Appellant was asked to “come here,” he did. When the officer asked him what he was doing in that area, he responded that he was playing a game of tag with his friend. Appellant did not respond to the officer’s questions regarding the whereabouts of his friend and why he was in that particular development. The officer knew Appellant did not live in that neighborhood.

The officer secured Appellant in handcuffs in order to ensure that Appellant would not attempt to run away. Appellant then agreed to a pat-down search. During the pat-down, the officer testified that he felt several large objects on the pant legs sticking out and a large bump on his back pocket, which the officer knew were not weapons, but he had “a feeling” that the items were property. Nevertheless, he reached into Appellant’s pants and removed a camera, two iPods, a watch, and U.S. currency. The items were located either in Appellant’s back pocket or tucked into his pant legs.

The standard of review applicable to a motion to suppress requires an appellate court to defer to the trial court’s factual findings but review legal conclusions de novo. State v. Abbey, 28 So.3d 208, 210 (Fla. 4th DCA 2010). We conclude, without discussion, that the officer had reasonable suspicion to detain Appellant. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State, 626 So.2d 185, 186 (Fla.1993) (explaining that investigatory stops under Terry are permissible where an officer has a well-founded, articulable suspicion of criminal activity); § 901.151(2), Fla. Stat. (2009) (codifying the standards enunciated in Terry in Florida’s Stop and Frisk Law).

Given our conclusion regarding the stop, the question becomes whether the officer’s weapons pat-down was permissible. Following a stop, “police officers are authorized to execute a pat-down for weapons only where they have a reasonable suspicion to believe that a suspect is armed with a dangerous weapon.” Campuzano v. State, 771 So.2d 1238, 1243 (Fla. 4th DCA 2000); see also § 901.151(5), Fla. Stat. (2009) (articulating the standard for an officer’s search of a person based on his or her belief that the person is armed with a dangerous weapon); Johnson v. State, 785 So.2d 1224, 1226 (Fla. 4th DCA 2001) (stating that “a pat down is authorized when ... the officer has probable cause to believe that the person stopped is armed with a dangerous weapon”). This Court has stated that “[o]ne of the recognized circumstances justifying a weapons pat-down is the combination of the defendant’s nervousness and the officer’s observation of a bulge in the defendant’s clothing.” Ray v. State, 849 So.2d 1222, 1225 (Fla. 4th DCA 2003); see also C.D. v. State, 82 So.3d 1037 (Fla. 4th DCA 2011).

In cases where an officer conducted a weapons pat-down after observing a bulge on a suspect’s clothing, the officer testified that before the pat-down he or she suspected that the bulging object could be a weapon. See, e.g., Graham v. State, 495 So.2d 852, 854 (Fla. 4th DCA 1986) (affirming the trial court’s denial of defendant’s motion to suppress and noting that the officer was permitted to conduct a pat-down for weapons after he noticed a bulge in defendant’s pants which he feared was a weapon); R.R. v. State, 715 So.2d 1062, 1063 (Fla. 5th DCA 1998); Richardson v. State, 599 So.2d 703, 704-05 (Fla. 1st DCA 1992).

While there was testimony concerning the bulges in Appellant’s pants and his “scared” demeanor, the officer did not provide testimony indicating that he had any suspicion or feared that Appellant was armed with a dangerous weapon. The officer merely testified that Appellant had a history of resisting and being rude. We hold that the facts in the instant case are insufficient to establish that the officer had a reasonable suspicion that Appellant was armed with a dangerous weapon, which would have allowed him to conduct a pat-down search.

Furthermore, Appellant argues and we agree that Appellant’s consent to the pat-down was insufficient. Where the officer handcuffed Appellant before asking “permission” to pat him down, we conclude that the consent given was nothing more than acquiescence to a show of police authority. See Ray, 849 So.2d at 1225 (“When the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.”) (quoting State v. Iaccarino, 767 So.2d 470, 476 (Fla. 2d DCA 2000)). As such, the weapons pat-down was not justified.

Even assuming the officer’s pat-down was permissible, a stop and frisk may not extend beyond a pat-down of a suspect’s outer clothing unless the officer concludes that the suspect has a weapon. C.G. v. State, 689 So.2d 1246, 1248 (Fla. 4th DCA 1997); see also Doctor v. State, 596 So.2d 442, 444-45 (Fla.1992) (“[D]uring the course of a legitimate frisk for weapons, police may only seize weapons or objects which reasonably could be weapons, despite the fact that the officer may reasonably suspect that the object may be evidence of a crime.”). Here, the officer testified that based on the pat-down, he knew the objects in Appellant’s pants were not weapons, but were instead property. Accordingly, the officer was not authorized to seize the contraband found on Appellant under the guise of Terry.

Appellant next argues that even if the pat-down was lawful, the evidence presented by the State at the suppression hearing was insufficient to establish probable cause to justify seizure of the contraband. The State counters that the officer had probable cause to seize the contraband found on Appellant, relying on what the officer felt during the pat-down and the other circumstances present. See State v. J.D., 796 So.2d 1217, 1219 (Fla. 4th DCA 2001) (“If, during a lawful pat-down ... the officer [develops] probable cause to believe that the defendant is carrying contraband, the officer may seize the contraband.”).

“Probable cause to arrest or search exists when the totality of the facts and circumstances within an officer’s knowledge sufficiently warrant a reasonable person to believe that, more likely than not, a crime has been committed.” League v. State, 778 So.2d 1086, 1087 (Fla. 4th DCA 2001) (citation omitted). Probable cause does not develop anytime an officer feels an object that the officer reasonably suspects to be contraband. See Harris v. State, 790 So.2d 1246, 1249 (Fla. 5th DCA 2001) (seizure of film canister containing cocaine from defendant’s front pocket not justified by plain feel doctrine where officer had nothing but mere suspicion that object he felt was contraband); Cole v. State, 727 So.2d 280, 281 (Fla. 2d DCA 1999) (seizure of crack pipe from defendant’s pants during pat-down search exceeded scope of the weapons pat-down where officer never testified that it was immediately apparent to him upon feeling the pipe that it was contraband). However, we acknowledge that “[a] police officer does not have to ‘know’ that a certain item is contraband” in order to establish probable cause, and “[a] finding of probable cause does not require absolute certitude.” State v. Hafer, 773 So.2d 1223, 1225 (Fla. 4th DCA 2000); Curtis v. State, 748 So.2d 370, 374 (Fla. 4th DCA 2000). Nonetheless, “[p]robable cause must be based on facts known to exist.” Doctor, 596 So.2d at 445 (citation omitted).

Considering the record before us, it is significant that before the pat-down occurred the officer had no description of the suspect or any items that may have been stolen during the burglary. Moreover, nothing transpired during the pat-down to authorize a more extensive search on the basis of probable cause. Here, all that was revealed from the pat-down was the officer’s “feeling” that the items were property. Notably, the officer did not even testify that he believed the items were contraband, only that he knew the items were property. Regardless, this feeling was insufficient to legitimize the seizure. See id.; Rodriguez v. State, 807 So.2d 130, 131 (Fla. 2d DCA 2002) (“The State has the burden of proving that the officer had the requisite probable cause. It must present more evidence than just the officer’s statement he had a ‘feeling’ based on ‘experience’ that the object he felt was contraband.”) (citation omitted). Therefore, we conclude that the officer’s testimony did not demonstrate probable cause.

Based on the foregoing, the trial court erred in denying Appellant’s motion to suppress.

Reversed and remanded.

WARNER and CONNER, JJ., concur.

      . § 901.151, Fla. Stat. (2009).

      . The Florida Supreme Court has indicated that the meaning of "probable cause” in section 901.151(5), is not synonymous with the stricter probable cause standard used to evaluate the legality of a search warrant or an arrest, but instead means reasonable belief or suspicion. State v. Webb, 398 So.2d 820, 824-25 (Fla.1981).


author: CRENSHAW, Judge.

text:
    Juan Carlos MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4949.
    District Court of Appeal of Florida, Second District.
    April 11, 2012.
    James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

Juan Carlos Morales appeals his judgment and sentence to thirty years’ imprisonment for kidnapping. We affirm the conviction without further comment but we reverse and remand with directions to correct the amended judgment for fines and costs.

In April 2011 the trial court entered an order granting Morales’ motion to correct sentencing error and ordering the clerk of the circuit court to strike specific attorney’s fees and fines. The trial court ordered the clerk to vacate the judgment for attorney’s fees and costs which reflected a $100 fee entered pursuant to section 938.29, Florida Statutes (2010), for attorney’s fees and costs of defense. However, the amended judgment and sentence instead eliminates a $100 fee for costs of prosecution under section 938.27. We remand for the trial court to correct the amended judgment in accordance with the trial court’s order granting Morales’ motion to correct sentencing error. The amended judgment and sentence shall reflect $568 in total statutory costs.

Reversed and remanded.

ALTENBERND and WHATLEY, JJ., Concur.


text:
    Gregory ABERCROMBIE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-73.
    District Court of Appeal of Florida, Second District.
    April 11, 2012.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Gregory Abercrombie might have to file a motion for postconviction relief.

NORTHCUTT, CRENSHAW, and BLACK, JJ, Concur.


author: DAVIS, Judge.

text:
    Sylvester WARREN, Jr., Appellant, v. Caryn R. WARREN, Appellee.
    No. 2D11-2180.
    District Court of Appeal of Florida, Second District.
    April 11, 2012.
    Shelley Harrell Shelton of Hall, Bennett & Shelton, Winter Haven, for Appellant.
    Lisa B. Lott of Putnam, Creighton & Airth, P.A., Lakeland, for Appellee.
   DAVIS, Judge.

Sylvester Warren, Jr., the Former Husband, challenges the order setting child support, the order on rule to show cause, the order establishing parenting plan, the order granting motion for clarification and/or rehearing, and the order denying Former Husband’s motion for rehearing and/or new trial. We affirm the orders as they relate to the trial court’s setting of a time-sharing schedule as part of the modification of the custody arrangement without further comment. We reverse that portion of the trial court’s order setting child support which made findings related to income and expenses that both parties concede were based on evidence not before the court. This concession is supported by the statement of facts prepared and submitted to this court in lieu of transcripts in the record on appeal pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Therefore we reverse and remand for further proceedings on the issue of modification of child support because competent substantial evidence supporting the award does not exist in the record before this court. See generally G.S.P. v. K.B., 30 So.3d 667, 669 (Fla. 2d DCA 2010).

Affirmed in part, reversed in part, and remanded.

SILBERMAN, C.J. and CASANUEVA, J., Concur.


text:
    Miakkar L. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3809.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.
    Miakkar L. Brown, Okeechobee, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Miakkar L. Brown appeals the summary denial of his rule 3.850 motion for postconviction relief. We vacate the order because an appeal of Brown’s original conviction was pending when the trial court entered the order of denial. The state concedes that the trial court loses jurisdiction to rule on a motion for postconviction relief during the pendency of the defendant’s direct appeal. See Daniels v. State, 712 So.2d 765, 765 (Fla.1998). Once jurisdiction is returned to the trial court upon the issuance of the mandate in the direct appeal (Case No. 4D10-1566), the trial court will be authorized to rule on the postconviction motion.

Order vacated.

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

      . The pending appeal resulted from our granting of Brown’s petition alleging ineffective assistance of appellate counsel in his original direct appeal.


text:
    Allison A. JUDKINS, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE and Jose S. Briceno, Appellees.
    No. 4D10-4579.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.
    Robin Bresky and Sophia Blair of the Law Offices of Robin Bresky, Boca Raton, for appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for appellee Department of Revenue.
   PER CURIAM.

Appellant appeals a final administrative child support order, asserting several errors with regard to the lower tribunal’s child support calculations. We find merit in two of appellant’s issues, as to which the Department of Revenue concedes error, and reverse for correction of the final order. As to appellant’s remaining issues, we affirm, finding either no abuse of discretion or appellant’s arguments unpre-served.

The lower tribunal ordered the father to pay “0% of the child’s medical, vision, dental and prescription medication expenses not covered by insurance.” Section 61.80(8), Florida Statutes (2010), provides that “[hjealth insurance costs resulting from coverage ... and any noncovered medical, dental, and prescription medication expenses of the child, shall be added to the basic obligation unless these expenses have been ordered to be separately paid on a percentage basis.” See also Clark v. Clark, 837 So.2d 1120, 1121 (Fla. 4th DCA 2003). Accordingly, we reverse and remand for the lower tribunal to provide for an award of the child’s future uncovered medical expenses in accordance with the father’s percentage share of child support.

In addition, the Department of Revenue concedes that the total amount of retroactive child support awarded in the final support order is inconsistent with the lower tribunal’s oral pronouncement. At the hearing, the lower tribunal stated it was awarding $26,368.00 in retroactive support. Its order, however, reflects the total retroactive support amount as $23,368.00. As such, we remand for the lower tribunal to conform the final order to its oral pronouncement and to its other calculations as set forth in the order. See Brewer v. Brewer, 3 So.3d 432, 433 (Fla. 2d DCA 2009).

Affirmed in part, reversed in part, and remanded.

CIKLIN, GERBER and LEVINE, JJ„ concur.


text:
    Sara S. O’CONNELL, Appellant, v. MARTIN COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 4D11-1659.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.

      Virginia P. Sherlock of Littman, Sherlock & Heims, P.A., Stuart, for appellant.
    Ronald A. Labansky of Brewton Plante, P.A., Tallahassee, for appellee.
   PER CURIAM.

Sara O’Connell appeals the trial court’s entry of final summary judgment in favor of Martin County on her complaint seeking invalidation of a referendum approving an ad valorem tax exemption ordinance. She claims that the ballot title did not include the name by which the ordinance was commonly referred to, and that the summary was misleading. She also claims that the court denied her due process by considering a memorandum of legal argument submitted by the County six days prior to the hearing. We affirm on all issues.

While our standard of review of a proposed amendment referendum is de novo, “[a] court may declare a proposed ... amendment invalid only if the record shows that the proposal is clearly and conclusively defective.” Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000).

O’Connell asserts that the ballot title set forth in the Resolution, “ECONOMIC DEVELOPMENT INCENTIVE AD VALOREM TAX EXEMPTION,” does not comply with the mandate of section 101.161(1), Florida Statutes, requiring a ballot title to use common language. Section 101.161(1), requires that ballot titles “consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.” The referendum was referred to in public discourse as a “Tax Abatement Referendum” or “Jobs Referendum” in advertisements supporting the measure. O’Connell further maintains that the ballot summary is misleading, because it speaks of allowing Martin County to “encourage job creation,” when the true purpose and effect of Ordinance 864 is to encourage development. Section 101.161(1) provides: “The ballot summary of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.” The trial court held, and Martin County argues, that the primary legal effect of the ordinance is job creation, as new and expanding businesses create new jobs, and the ballot title and summary provided fair notice of this effect.

The “Court has always interpreted section 101.161(1) to mean that the ballot title and summary must be read together in determining if the ballot information properly informs the voter.” Advisory Opinion to the Atty. Gen. Re: Casinos, 644 So.2d 71, 75 (Fla.1994). As explained by the supreme court, the ballot and summary should not mislead or commit a fraud on the voters:

The purpose of a ballot title and summary is “to provide fair notice of the content of the proposed amendment so that the voter will not be misled as to its purpose, and can cast an intelligent and informed ballot.” To comply with the requirements of law, the ballot language “must state the chief purpose of the proposed amendment.” This Court has explained that the ballot must “advise the voter sufficiently to enable him intelligently to cast his ballot.” While the ballot title and summary must state in clear and unambiguous language the chief purpose of the measure, they need not explain every detail or ramification of the proposed amendment. The ballot language must, however, give “the voter fair notice of the decision he [or she] must make.”
... In assessing the ballot title and summary, the reviewing court should ask two questions: First, whether the ballot title and summary “fairly inform the voter of the chief purpose of the amendment,” and second, “whether the language of the title and summary, as written, misleads the public.”....
... The proposed amendment “must stand on its own merits and not be disguised as something else.” “A ballot title and summary cannot either ‘fly under false colors’ or ‘hide the ball’ as to the amendment’s true effect.”

Fla. Educ. Ass’n v. Florida Dep’t. of State, 48 So.3d 694, 700-01 (Fla.2010) (citations omitted).

Based upon these standards, the ballot title and summary comply with the statutory requirements. The title informs voters that the ordinance is for economic development, and the ordinance was enacted to take advantage of section 196.1995, Florida Statutes, which allows up to a 10-year exemption of up to 100 percent of the assessed value of improvements to real property and tangible personal property to both new businesses and expansions of existing businesses that meet certain minimum job creation requirements. The title “Economic Development Incentive Ad Va-lorem Tax Exemption” correctly informs the voter that the measure is an ad valo-rem tax exemption, as an incentive for economic development. The title also is nearly identical to the title of section 196.1995, which is “Economic development ad valorem tax exemption.” While it appears that this particular ordinance was referred to by several different names in the public, the ballot title does not mislead the public as to the true and chief purpose of the amendment.

As to the ballot summary, the trial court held that the primary legal effect of the ordinance is job creation, because new and expanding businesses create new jobs, and the ballot summary provided fair notice of this effect. We agree with that conclusion and do not accept the conclusion that the real purpose is land development. While not all ramifications and explanations are contained, the summary does not have to contain all of the details of the ordinance and probably could not within the word limitation of the summary. Fla. Educ. Ass’n, 48 So.3d at 700. The ballot title and summary fairly inform the voters of the chief purpose of the ordinance and do not commit a fraud on the public. Therefore, under the standards enunciated by the supreme court, they were sufficient to place before the voters.

Finally, on the procedural issue raised, no denial of due process occurred when the County submitted its memorandum of law on the cross motions for summary judgment six days prior to the hearing. The county’s timely-filed motion for summary judgment alleged that the ballot title and summary comply with state statute as a matter of law. The memorandum of law in support of the motion simply provided case citations and legal argument in support of this ground for judgment. No new ground for relief was stated in the motion. The rules do not require the county to submit a memorandum of law at all, and no rule or case holds that nearly a week’s notice of the legal authorities upon which a party intends to rely is a denial of due process to the opposing party.

Affirmed.

WARNER, STEVENSON and CONNER, JJ., concur.


author: WALLACE, Judge.

text:
    Silvia ZANCHEZ, a/k/a Silvia Sanchez, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2853.
    District Court of Appeal of Florida, Second District.
    April 11, 2012.
   WALLACE, Judge.

Silvia Zanchez appeals from an order denying her motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. In her motion, Ms. Zan-chez raised two claims of ineffective assistance of counsel. The postconviction court properly denied Ms. Zanchez’s second claim, and that claim does not warrant further discussion. In her first claim, Ms. Zanchez alleged that her counsel was ineffective for failing to suppress evidence gathered in a search that Ms. Zanchez asserts was illegal. Although this claim is facially insufficient, the postconviction court should have stricken the claim with leave for Ms. Zanchez to file a facially sufficient claim in accordance with Spera v. State, 971 So.2d 754, 761 (Fla.2007).

After being charged with first-degree murder and aggravated child abuse, Ms. Zanchez entered a negotiated plea to aggravated manslaughter of a child and was sentenced to twenty years in prison on February 9, 2009. According to the limited factual basis recited by the prosecutor at the plea hearing, Ms. Zanchez caused the death of a child that was born alive but whose body was never recovered.

Ms. Zanchez alleged in her rule 3.850 motion that she rented a room in a house owned by her boyfriend’s brother. One day, while she was at work, her boyfriend’s mother, Mrs. Zaragoza, who speaks no English, engaged in what Ms. Zanchez described as “third party contact [with] the police.” When law enforcement officers arrived at the house, Mrs. Zaragoza opened the door to Ms. Zanchez’s room, ushered in a police officer, removed a comforter from the bed, and exposed a bloodstained mattress. The officer cleared the house for safety, requested assistance, and began a search. Officers then collected bloodstained clothing and other evidence without Ms. Zanchez’s consent. Only after she returned home from work did Ms. Zanchez sign a form — written in English— that authorized the search and waived the warrant requirement. She did so even though she neither speaks nor reads English. Based upon these facts, together with her expressly stated expectation of privacy in the room she rented, Ms. Zanchez claimed that her attorney should have filed a motion to suppress the evidence gathered in this allegedly illegal search.

The postconviction court denied Ms. Zanchez’s claim on the ground that she was “attempting] to go behind the plea” as proscribed by Stano v. State, 520 So.2d 278, 279 (Fla.1988), and Dean v. State, 580 So.2d 808, 810 (Fla. 3d DCA 1991). The court found that the sentencing documents and the transcript from the plea and sentencing hearing refuted this claim, specifically noting that Ms. Zanchez responded affirmatively when asked whether her counsel had discussed with her all factual or legal defenses she might have, including any motions that could be filed to challenge evidence that was taken from her or statements that she might have made to law enforcement. As discussed below, we conclude that Stano is distinguishable from the situation presented in this case and that the attachments to the denial order could not conclusively refute Ms. Zanchez’s claim. But what is more significant, the postconviction court failed to recognize that Ms. Zanchez’s motion was facially insufficient. For the reasons that follow, we reverse and remand for the postconviction court to strike the claim as facially insufficient and to permit Ms. Zanchez to amend it.

In Stano, the supreme court determined that the record conclusively refuted the defendant’s claim of an involuntary plea stemming from his counsel’s alleged failure to conduct a thorough investigation into the facts of the case. 520 So.2d at 280. At the plea hearing, Mr. Stano’s attorney stated that he had told his client that he did not know whether the State could prove its case; but Mr. Stano insisted on entering a plea and, furthermore, assured his attorney that his admissions and confessions to law enforcement were voluntarily, competently, and intelligently made. The supreme court observed, “By insisting on pleading guilty and by telling counsel that he had confessed freely and voluntarily, Stano rendered any further investigation pointless.” Id.

In this case, however, the plea colloquy does not demonstrate that Ms. Zanchez insisted on pleading against her attorney’s advice, nor did she admit that she freely waived her Fourth Amendment rights. Moreover, the alleged deficient performance in Stano did not consist of a failure to file a motion to suppress evidence allegedly seized in violation of Fourth Amendment rights. This court held in Williams v. State, 717 So.2d 1066, 1066 (Fla. 2d DCA 1998), that “[a] trial attorney’s failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.” See also Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004) (“An allegation that trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by entry of a plea.”).

More recently, in Nelson v. State, 996 So.2d 950, 952 (Fla. 2d DCA 2008), this court examined a situation similar to Ms. Zanchez’s and concluded that a generalized discussion of the motions or defenses that were being waived was insufficient for a determination that the defendant’s rule 3.850 claims were an improper attempt to go behind a plea under Stano. Here, neither the specifics of the initial search nor Ms. Zanchez’s later consent was addressed at the plea hearing. Thus the prohibition against going behind the plea announced in Stano does not foreclose Ms. Zanchez’s claim regarding her counsel’s failure to file a motion to suppress evidence, and the postconviction court should have examined the allegations more closely.

In cases of this sort, the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies. Ms. Zanchez alleged that her counsel’s performance was deficient because he should have filed a motion to suppress evidence on the grounds that an unauthorized person permitted nonconsensual entry into her rented room and that her later written waiver of consent was involuntary. But upon further examination of her motion, we note that Ms. Zan-chez has failed to allege that there is a reasonable probability that but for counsel’s errors, she would not have pleaded guilty but would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Nelson, 996 So.2d at 952. Thus Ms. Zanchez’s motion completely omits an allegation of prejudice flowing from her attorney’s alleged deficient performance.

Accordingly, we reverse the denial of claim one and remand for the postconviction court to strike the claim with leave for Ms. Zanchez to file a facially sufficient motion within a reasonable period of time in accordance with Spera, 971 So.2d at 761. The denial of claim two is affirmed.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and MORRIS, JJ., Concur.


author: LaROSE, Judge.

text:
    Alex FLINT, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1962.
    District Court of Appeal of Florida, Second District.
    April 11, 2012.
   LaROSE, Judge.

Alex Flint appeals an order summarily denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Mr. Flint raised eight claims of ineffective assistance of trial counsel and a cumulative error claim. We affirm without comment the summary denial of claims 1 through 4 and claim 8. We reverse the summary denial of claims 5, 6, 7, and 9 and remand for the postconviction court to either attach portions of the record conclusively refuting those claims or to hold an evidentiary hearing.

By way of background, we note that a jury convicted Mr. Flint of burglary of an occupied dwelling, a second-degree felony; two counts of felony battery, third-degree felonies; and one count of criminal mischief, a second-degree misdemeanor. See §§ 810.02(3)(a), 784.03(2), 806.13(l)(b)(l), Fla. Stat. (2006). The trial court sentenced him to fifteen years in prison as a habitual felony offender, see § 775.084(4)(a), Fla. Stat. (2006), for the burglary; it imposed five years’ imprisonment for the felony batteries and time served for the criminal mischief conviction. We affirmed Mr. Flint’s convictions and sentences on direct appeal. See Flint v. State, 993 So.2d 525 (Fla. 2d DCA 2008) (table decision).

In claim 5 of his postconviction motion, Mr. Flint asserted that trial counsel was ineffective for failing to object to the State’s query about the nature of his prior felony convictions for battery. When asked by the State how many times he had been convicted of a felony, Mr. Flint, testifying on his own behalf, responded, “I don’t know.” The State then presented a judgment and sentence for an aggravated battery conviction in 2001 and asked Mr. Flint about a second such conviction in 2002, exploring the details of both offenses. Mr. Flint testified that he did not commit those crimes but entered a plea in his best interest.

According to Mr. Flint, the State impermissibly relied on the nature of the prior convictions to show bad character and propensity to commit crime. Mr. Flint also argued that the State’s questioning suggested that the victim of both aggravated batteries was the same when it was not. The postconviction court summarily denied this claim. It concluded that the questioning was proper because Mr. Flint was not responsive when asked about the number of his prior felonies. This was error. The State could have shown that Mr. Flint had two prior felony convictions; the State could not ask about the nature of those convictions. See § 90.610(1), Fla. Stat. (2006); Smith v. State, 7 So.3d 473, 500 (Fla.2009) (reiterating that questioning witness about nature and underlying facts of prior conviction of witness for impeachment purposes is not allowed); Rodriguez v. State, 761 So.2d 381, 383 (Fla. 2d DCA 2000) (explaining that when witness admits convictions, trial court errs by allowing State to question witness about the specific convictions; even if witness denies being previously convicted of felony, trial court would err by permitting prosecutor to question witness about prior convictions and should limit prosecutor to impeaching witness by entering into record certified copies of pri- or convictions only; trial attorney’s failure to object to questioning fell below any standard of reasonable professional assistance); Britton v. State, 604 So.2d 1288, 1291 (Fla. 2d DCA 1992) (holding that when witness answered question about number of convictions with an approximation, answer was not untruthful; State is not allowed to elicit answers from defendant about specific nature of prior convictions and is limited to introduction of records establishing prior convictions only). Claim 5 could show deficient performance by counsel sufficient to require relief, provided that Mr. Flint can also demonstrate prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Reversal and remand for further proceedings are necessary.

Claim 6 concerns the same line of questioning addressed in claim 5. Mr. Flint contends that in questioning him, the State improperly emphasized that he just got out of prison, that he had previously beaten one of the victims, and that the victim feared him. Mr. Flint claims trial counsel was ineffective for not objecting. The postconviction court found the questioning proper as relevant to the victim’s state of mind at the time of the incident and to Mr. Flint’s inconsistent testimony. For the reasons expressed above as to claim 5, we conclude that the ruling on this claim must be reversed and reconsidered along with claim 5.

Claim 7, too, is related to claims 5 and 6. Mr. Flint asserted that the State in closing improperly commented on and emphasized his character and his prior battery convictions. Mr. Flint contends that trial counsel should have objected. The postconviction court found that trial counsel was not ineffective. For the reasons previously expressed, this ruling also was error. Reversal and remand are needed.

Claim 9 alleges cumulative error. The postconviction court summarily denied this claim. We also reverse this ruling. The postconviction court should reconsider claim 9 after it has resolved claims 5, 6, and 7. See Hempstead v. State, 980 So.2d 1254, 1265 (Fla. 2d DCA 2008) (holding that reversal and remand on some claims required reversal of cumulative error claim and remand for postconviction court to consider it after court has resolved the remaining claims).

Affirmed in part, reversed in part, and remanded with directions.

CASANUEVA and WALLACE, JJ., Concur.


text:
    Delbert SPRINGER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5046.
    District Court of Appeal of Florida, First District.
    April 11, 2012.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Archer v. State, 604 So.2d 561 (Fla. 1st DCA 1992).

WOLF, RAY, and MAKAR, JJ., concur.


author: LEWIS, J.

text:
    Felipe ROSA, Appellant, v. PROGRESSIVE EMPLOYER SERVICES/SUNZ INSURANCE COMPANY/USIS, Appellees.
    No. 1D11-4373.
    District Court of Appeal of Florida, First District.
    April 12, 2012.

      Harold E. Barker of DiCesare, Davidson & Barker, P.A., Lakeland, for Appellant.
    Ben H. Cristal of the Cristal Law Group, Tampa, for Appellees.
   LEWIS, J.

In this workers’ compensation appeal, Felipe Rosa, Claimant, challenges an order of the Judge of Compensation Claims (JCC) denying his claim for temporary indemnity benefits and ruling on Claimant’s permanent impairment rating (PIR). Claimant argues, and the employer/carrier (E/C) concedes, the JCC erred in making a finding on Claimant’s PIR because that issue was beyond the scope of the hearing. Claimant also argues the JCC erred in finding that Claimant had reached maximum medical improvement (MMI) and further erred in relying upon that erroneous determination to deny Claimant’s claims for temporary indemnity benefits. We agree on both points. Therefore, for the reasons that follow, we reverse and remand for further proceedings consistent with this opinion.

Claimant suffered an industrial accident on June 15, 2009, while mounting a truck tire on a rim. Between July 2010 and March 2011, Claimant filed four petitions for benefits seeking both temporary total and temporary partial disability benefits from January 26, 2011, through the date of the final hearing, authorization for a C-7 nerve block, and other medical benefits.

As the JCC indicated during the hearing, the issue of Claimant’s PIR was not before the JCC. This claim had not been mediated, listed in the Uniform Pretrial Stipulation, or addressed by either party, and was not ripe for adjudication. Consequently, the JCC erred in making a finding on the issue of PIR. See Lawrence v. Aquarius Sales & Serv., Inc., 30 So.3d 690 (Fla. 1st DCA 2010) (holding that the JCC erred in making a finding on PIR because Claimant’s PIR was not at issue). Ruling on an issue that is not properly before the JCC is a violation of a party’s due process rights. See Isaac v. Green Iguana, Inc., 871 So.2d 1004 (Fla. 1st DCA 2004). Accordingly, we reverse that portion of the order, and remand with directions to strike such findings and conclusions.

Additionally, the JCC found Claimant reached MMI based on the opinions of Claimant’s various treating specialists and, given that finding, the JCC denied Claimant’s claims for temporary indemnity benefits. The JCC then awarded the requested treatment based on the opinion of the expert medical advisor that the procedure was medically necessary because it could bring about some degree of improvement in Claimant’s condition. However, the JCC’s finding that Claimant had reached overall MMI is by its very nature inconsistent with the JCC’s award of the requested treatment.

This Court has held that an award of medical care and treatment is inconsistent with a denial of temporary indemnity benefits for the same time period, and is reversible error. See Delgado v. Omni Hotel, 643 So.2d 1185, 1186 (Fla. 1st DCA 1994); Rolle v. Picadilly Cafeteria, 573 So.2d 94, 97 (Fla. 1st DCA 1991); Utley-James, Inc. v. Lady, 448 So.2d 1191, 1193 (Fla. 1st DCA 1984); but cf. Old Cove Condo v. Curry, 511 So.2d 666 (Fla. 1st DCA 1987) (explaining that medical care in the form of palliative treatment may be awarded after the claimant reaches MMI). In Delgado, this Court explained:

It is well-established that the date of MMI “marks the point after which no further recovery or improvement from an injury or disease can be reasonably anticipated.” Rolle v. Picadilly Cafeteria, 573 So.2d 94, 96 (Fla. 1st DCA 1991), citing Kirkland v. Harold Pratt Paving, Inc., 518 So.2d 1320, 1323 (Fla. 1st DCA 1987), rev. denied, 525 So.2d 878 (Fla.1988). A finding of MMI “is precluded where treatment is being provided with a reasonable expectation that it will bring about some degree of recovery, even if that treatment ultimately proves ineffective.” Rolle, 573 So.2d at 97.
The nature of medical treatment is not to be determined by the ultimate success or failure of the treatments. Treatments are curative in nature if administered or prescribed by a qualified physician with a reasonable expectation that they will bring about some degree of recovery.... Temporary disability continues as long as recovery or lasting improvement in the injured person’s condition can reasonably be expected....

Id., 643 So.2d at 1186 (quoting Utley-James, Inc., 448 So.2d at 1193).

Thus, an award of medical treatment believed likely to improve Claimant’s condition means Claimant has not yet reached MMI, and is potentially entitled to temporary indemnity benefits. Given the JCC awarded such treatment, the JCC’s finding that Claimant reached MMI is by its very nature inconsistent and is reversible error. Delgado, 643 So.2d at 1186; Rolle, 573 So.2d at 97. We, therefore, reverse that portion of the order, and remand for further findings concerning Claimant’s entitlement to temporary indemnity benefits.

REVERSED and REMANDED for further proceedings consistent with this opinion.

PADOVANO and WETHERELL, JJ., concur.

      . To the extent the award of the C-7 nerve block in this case was based on the JCC’s finding that the procedure is “palliative in nature,” the finding is not supported by competent substantial evidence. All of the medical evidence, including the testimony of the expert medical advisor and the physician whose opinion prompted the appointment of the EMA, indicates that the nerve block was not ordered as palliative care, but rather as a diagnostic tool to isolate the cause of Claimant's residual neck and shoulder pain and to help determine the future course of treatment.


text:
    S.C.E., The Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5765.
    District Court of Appeal of Florida, First District.
    April 12, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, S.C.E., challenges the trial court’s order committing him to a moderate-risk residential program and argues that the court erred in deviating from the Department of Juvenile Justice’s recommendation of probation by failing to comply with the requirements enunciated in E.A.R. v. State, 4 So.3d 614 (Fla.2009). We agree and, therefore, reverse. In doing so, we reject the State’s argument that, because the Department’s recommendation of probation differed from the recommendation set forth in the comprehensive evaluation, E.A.R. is not applicable in this case. Although a determination that the Department overlooked or failed to sufficiently consider the evaluation’s recommendation may be a sufficient basis for the trial court to deviate from the Department’s recommendation, the trial court must still make the findings required by E.AR. before deviating from that recommendation. See N.P. v. State, 18 So.3d 735 (Fla. 2d DCA 2009); see also S.W. v. State, 26 So.3d 655 (Fla. 4th DCA 2010). On remand, the trial court must either amend the disposition order to include the required findings that would support a moderate-risk placement or, if such findings cannot be made, enter a new order imposing the Department’s recommendation of probation.

REVERSED and REMANDED with directions.

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.