text:
    Cortney Cornarus PRESSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4615.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.

      Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Appellant, Cortney Cornarus Pressley, seeks review of his sentence for carrying a concealed firearm without a license (“count I”) and resisting an officer without violence (“count II”). Appellant argues that the trial court violated his right to due process when it refused to consider imposing a youthful offender sentence. The State properly concedes error. We agree that the trial court’s arbitrary policy not to consider “boot camp,” which is a type of youthful offender sentence, without any reflection on the merits of Appellant’s case constitutes a denial of due process and, thus, fundamental error. Therefore, we reverse and remand for resentencing.

The jury returned verdicts of guilty as to both counts and the trial court sentenced Appellant to four years’ imprisonment for count I and one year imprisonment for count II to run concurrently with count I. At the end of the sentencing hearing, Appellant inquired, “There’s no boot camp?” The trial court replied, “Sir, I don’t do boot camp.” The trial court provided no other comments. In this appeal, Appellant seeks reversal of his sentence and remand for resentencing with consideration, in the trial court’s discretion, of the youthful offender sentence. Our review is de novo. See Cromartie v. State, 70 So.3d 559, 568 (2011) (stating that a violation of due process is a pure question of law).

For an error related to a sentence to be considered on appeal it must fall into one of three categories: a “sentencing error” preserved through a contemporaneous objection or timely motion under Florida Rule of Criminal Procedure 3.800(b); an error that occurred during sentencing process that is preserved by contemporaneous objection; or a fundamental error that occurred during the sentencing process. See Jackson v. State, 983 So.2d 562, 569, 572-74 (Fla.2008). A sentencing error is a term of art and is not simply an error that might conceivably occur during a sentencing hearing; it is an error in an order “entered as a result of the sentencing process.” Jackson, 983 So.2d at 572. The error at issue is not a “sentencing error” because the refusal to consider a lawful sentence is not an error in an order “entered as a result of the sentencing process.” See id. The error at issue here is simply one that occurred during the sentencing process. To preserve such an error for review, Appellant needed to raise an objection specific enough to apprise the trial court of its error. Jackson, 983 So.2d at 568, 573-74. Although Appellant’s question (“There’s no boot camp?”) was not sufficient to satisfy the specificity requirement of the preservation rule, the trial court’s response to the question did reveal the presence of a fundamental error. See Cromartie, 70 So.3d at 563 (holding that a trial judge’s arbitrary sentencing policy was fundamental error).

“[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.” Jackson, 983 So.2d at 575 (quoting Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994)). “[I]n order to be considered fundamental, an error must be serious. In determining the seriousness of an error, the inquiry must focus on the nature of the error, its qualitative effect on the sentencing process and its quantitative effect on the sentence.” Maddox v. State, 760 So.2d 89, 99 (Fla.2000). As the Florida Supreme Court recently noted in Cromartie v. State, fundamental error occurs when a trial court refuses to consider a legislatively authorized sentencing option as a matter of policy. See 70 So.3d at 564 (holding the trial court’s stated policy of rounding up the sentence was a fundamental error because it improperly extended incarceration in an arbitrary manner).

Section 958.021, Florida Statutes (2009), part of the Youthful Offender Act, provides that “[i]t is the ... intent of the Legislature to provide an additional sentencing alternative to be used at the discretion of the court when dealing with offenders who have demonstrated that they can no longer be handled safely as juveniles and who require more substantial limitations upon their liberty to ensure the protection of society.” The Youthful Offender Act provides that “[i]n counties where there are county-operated youthful offender boot camp programs ... the court may sentence a youthful offender to such a boot camp.” § 958.046, Fla. Stat. (2009); see also Holmes v. State, 899 So.2d 432, 434 (Fla. 3d DCA 2005).

Application of the Youthful Offender Act to any particular defendant is within the discretion of the trial judge because the trial judge “is in the best position to determine whether sentencing under the act is the most desirable treatment for that defendant.” Ellis v. State, 475 So.2d 1021, 1023 (Fla. 2d DCA 1985). However, “[t]he trial court’s sentencing discretion under the Youthful Offender Act is not unbridled.” McKinney v. State, 27 So.3d 160, 161 (Fla. 1st DCA 2010). The trial court may, after reviewing the criteria, decline to sentence a statutorily qualified person as a youthful offender. Nolte v. State, 726 So.2d 307, 309 (Fla. 2d DCA 1998). But, “[l]ike any other exercise of judicial discretion, the trial court’s sentencing decision must be supported by logic and reason and must not be based upon the whim or caprice of the judge.” McKinney, 27 So.3d at 161. Moreover, judicial application of a policy against consideration of a lawful sentence is a violation of a defendant’s due process. See Cromartie, 70 So.3d at 563. This Court has already stated that the trial court’s personal opinion and views on the “efficacy of the youthful offender program as a whole have no place in its sentencing decision.” McKinney, 27 So.3d at 162. In McKinney v. State, the defendant asserted that the trial court abused its discretion by basing its decision not to sentence him as a youthful offender on the court’s personal opinion of the youthful offender program when the trial court made the following comments:

This is not one of those crimes somebody just stumbles into. It is not an accidental kind of occurrence. It was ... a planned enterprise between you and the others involved to do this and for that reason I have to take that and look at it seriously.
I do find you guilty and adjudicate you guilty. In part because of my personal diminishing regard for the youthful offender program, not because of you but because if the youthful offender program was meritorious and worthy ... I would at least give it some thought but in light of the nature of this offense I don’t even give it passing consideration because I just don’t think it is the right thing to do. I don’t think it takes it as serious and a crime of this nature requires it to be dealt with and for that reason I will not be imposing a youthful offender sentence.

Id. at 162. While viewing those comments in context of the trial court’s complete explanation of its sentencing decision, this Court found that the trial court’s decision not to impose a youthful offender sentence was properly based upon consideration of the defendant’s circumstances and the serious nature of his crimes. Id.

The instant case is distinguishable from McKinney because the trial court failed to explain in any manner why the trial court decided not to consider a youthful offender sentence. We find that the trial court made no comments that would convince us that the trial court properly exercised its discretion. The sentence imposed was within the legal guidelines. However, the trial court’s stated policy of not considering “boot camp,” which is a type of youthful offender sentence, without any reflection on the individual merits of this particular defendant’s case is arbitrary and, consequently, a denial of due process. This error goes to the foundation of the judicial decision, and by its nature focuses on the qualitative effect on the sentencing process and its quantitative effect on the sentence. See Cromartie, 70 So.3d at 564.

Therefore, although we affirm Appellant’s convictions, we reverse the sentences and remand for resentencing with consideration, in the trial court’s discretion, of the youthful offender sentence. We do not suggest that Appellant is necessarily entitled to resentencing as a youthful offender, but rather, Appellant is entitled to be sentenced at a proceeding at which the trial court takes into consideration an option of a youthful offender sentence.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

LEWIS and RAY, JJ„ concur; WOLF, J., concurs in result.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Albert CAPALBO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2568.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.

      Albert Capalbo, Punta Gorda, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Albert Capalbo appeals the summary denial of his Rule 3.850 motion for postcon-viction relief. We affirm.

Appellant accepted a ten-year offer extended by the court and pleaded no contest to attempted first degree murder. According to the factual basis for the plea and the probable cause affidavit, appellant knocked on the victim’s door and shot the victim twice at close range. The victim was appellant’s neighbor and several witnesses heard appellant threaten to kill the victim and say this was his “last warning” before the shooting. Appellant allegedly made several incriminating statements to police after his arrest.

In his motion, he alleged that he informed defense counsel that he wished to pursue self-defense, but defense counsel told him he “could not” because the victim’s version of events differed from his own. He claims that, had counsel not misadvised him, he would not have accepted the plea and would have proceeded to trial. He alleges that the victim had harassed him on numerous occasions and that he had complained to the apartment manager that the victim was selling drugs and making too much noise. According to appellant, on the day of the shooting, he argued with the victim who left after the confrontation. When the victim returned, appellant approached him and asked him to “leave him alone.” The victim then allegedly made a derogatory remark and turned around. Appellant alleges that the victim reached under his shirt towards his waistband and that he believed he was reaching for a weapon. Appellant shot him twice in purported self-defense.

Appellant argues that the State mischar-acterizes his claim. The State maintains that counsel was not deficient in advising appellant that self-defense was not plausible under the circumstances. Appellant, however, contends on appeal that his claim was actually that counsel gave him what he believed was expert legal advice, that self-defense “is not applicable,” as a matter of law, where the victim gives a different version of events. He argues that the plea colloquy, which did not expressly address the availability of self-defense, does not refute his claim.

A postconviction movant cannot disown knowledge of the obvious. A post-conviction court is not required to hold hearings on absurd claims or accept as true allegations that defy logic and which are inherently incredible. See Montero v. State, 996 So.2d 888, 891 (Fla. 4th DCA 2008) (holding that, under the circumstances of that case, the allegation that defendant would not have entered the plea was “inherently unbelievable and contrary to common sense”), rev. denied, 15 So.3d 581 (Fla.2009); Evans v. State, 843 So.2d 938, 940 (Fla. 3d DCA 2003) (finding that a defendant’s claim that he would not have entered his plea was “so thoroughly contrary to common sense as to be inherently incredible, and does not warrant a hearing”).

Appellant admits he was aware of self-defense because he advised counsel that he wanted to pursue it. Appellant’s dubious claim that he believed counsel’s alleged expert advice that self-defense can be asserted only if the victim agrees with the defendant amounts to an allegation that appellant was unaware that he could contest at trial the victim’s version of events.

The plea colloquy refutes this allegation. Appellant was 64 years old at the time of the plea. He had no difficulty with the English language and had completed four years of college. In the plea colloquy, appellant acknowledged that he understood that he had the right to a jury trial and to require the State to prove the charges against him beyond a reasonable doubt. The court advised him that he could confront the witnesses against him. He understood that by entering the plea he was waiving any defenses he may have to the charges.

Courts should not misapply the principle that, in postconviction relief proceedings, “where no evidentiary hearing is held below, [the court] must accept the defendant’s factual allegations to the extent they are not refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla.1999) (citation omitted).

Courts do not have to accept bald allegations that the prejudice component of an ineffective assistance of counsel claim is met. Where, under the totality of the circumstances, no objectively reasonable probability of prejudice exists, the claim may be summarily denied. Courts are not required to hold evidentiary hearings on objectively unreasonable postconviction claims.

The prejudice standard that applies to an ineffective assistance of counsel claim in a plea case is whether the defendant has established a “reasonable probability” that, but for the deficient performance, the movant would not have entered the plea and would have proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). See also Grosvenor v. State, 874 So.2d 1176, 1181-82 (Fla.2004). The prejudice component of a Hill claim involves a legal standard and is not a purely factual determination. The prejudice inquiry is objective, and a court must consider the totality of the circumstances at the time of the plea.

[I]n determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.

Grosvenor, 874 So.2d at 1181-82.

Appellant fails to establish a “reasonable probability” that he would not have pleaded. A “probability” is not a mere possibility, and requires something more than a bald allegation. To be sufficient, the claim must be objectively reasonable. See Hill, 474 U.S. at 59-60, 106 S.Ct. 366. The circumstances must be sufficient to undermine confidence in the outcome of the proceeding, and the ultimate focus, when considering prejudice, must be on the fundamental fairness of the proceeding whose result is being challenged. Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Viewed objectively, and accepting appellant’s allegations regarding his version of events as true, confidence in the outcome, particularly confidence in appellant’s knowing and voluntary waiver of his right to jury trial, is not undermined.

In this case, the totality of the circumstances and the three factors specified in Grosvenor, 874 So.2d at 1181-82, do not support prejudice. First, appellant has not alleged any facts that would make his purported self-defense claim likely to succeed at trial. In addition to the victim’s contrary version of events, appellant’s self-defense claim could have been undermined by several witnesses who heard appellant threaten to kill the victim before the shooting. Second, the court conducted a sufficient plea colloquy and ensured that appellant was aware of his right to a jury trial and to confront the witnesses against him. Third, appellant was facing a possible life sentence with a 25-year mandatory minimum under the 10-20-LIFE law if convicted at trial. Appellant accepted the 10-year plea offer extended by the court, and the State agreed to waive the 25-year mandatory minimum penalty as part of the plea.

The concern for finality has special force as to convictions arising from pleas. See U.S. v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979).

Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.

Id. (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th Cir.1971) (Stevens, J., dissenting)). We would not require an evidentiary hearing on an ineffective assistance of counsel claim following a trial where no reasonable probability of prejudice exists. The prejudice standard is not less stringent in a plea case.

Under the circumstances, no objectively reasonable probability exists that appellant would not have pleaded. An evidentiary hearing is not required. The claim does not merit postconviction relief.

Affmned.

POLEN, STEVENSON and DAMOORGIAN, JJ., concur.

      . Self-defense is an affirmative defense. Mosansky v. State, 33 So.3d 756, 758 (Fla. 1st DCA 2010). In Hill, the Court explained: “[W]here the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the 'prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” 474 U.S. at 59, 106 S.Ct. 366.


text:
    M.S.O., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3398.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.

      Carey Haughwout, Public Defender, and Nicole M. Ramos, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, juvenile M.S.O., was adjudicated delinquent for grand theft. We reverse with directions to enter judgment for the lesser included offense of petit theft and for resentencing.

On a charge of grand theft of the third degree, the state is required to prove that the value of the stolen property at the time of the theft is $300 or more. § 812.014(2)(c), Fla. Stat. (2009). “Value means the market value of the property at the time and place of the offense” § 812.012(10)(a)1., Fla. Stat. (2009). In the absence of direct testimony as to market value, “proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction.” Lucky v. State, 25 So.3d 691, 692 (Fla. 4th DCA 2010) (quoting Gilbert v. State, 817 So.2d 980, 982 (Fla. 4th DCA 2002)).

In this case, the property owner testified that he purchased the laptop M.S.O. was charged with stealing for $1,000 four years prior to the theft. He estimated that $600 was an approximate “depreciated value” of the laptop at the time it was stolen, based on his use of “the IRS standard deduction of 15 percent a year for depreciation.” Given the nature of the property, we conclude this testimony was insufficient to establish a value of $300 or more at the time of the theft beyond a reasonable doubt. See id. (“Electrical components like televisions, computers, and stereo systems are subject to accelerated obsolescence because manufacturers are constantly releasing new, improved technology at lower prices.”). See also Austin v. State, 64 So.3d 139, 140 (Fla. 4th DCA 2011) (holding evidence insufficient to establish value of $300 or more where laptop computer was purchased for $1500 and stolen two years later, could be replaced with a “similar computer” for “a couple hundred dollars,” and “it would cost at least $500 or $600 to get a new laptop computer with the same programs”).

Accordingly, we reverse M.S.O.’s adjudication of delinquency for third degree grand theft and remand for the trial court to enter judgment for the lesser included offense of petit theft. § 924.34, Fla. Stat. (2011). As to the other issue raised on appeal, we affirm.

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

TAYLOR, HAZOURI and LEVINE, JJ., concur.


author: POLEN, J.

text:
    Treymone GOLDWIRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4363.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Treymone Goldwire, appeals the trial court’s judgment of conviction and sentence of twenty years in the Department of Corrections, pursuant to the Criminal Punishment Code. Goldwire argues there was a sentencing error because the trial court was unaware it could exercise its discretion in imposing Goldwire’s sentence. We remand this case so the court may now exercise its discretion and properly consider all sentencing options.

Goldwire was charged by information with three counts of armed robbery with actual possession of a firearm and one count of grand theft of a motor vehicle. Goldwire entered a plea of guilty to all four counts. Goldwire was adjudicated guilty on the first two counts of robbery with a firearm and received a sentence of two years in the Department of Corrections as a youthful offender, to be served concurrently with 389 days as credit for time served. For the other two counts, Goldwire was sentenced to four years probation as a youthful offender, consecutive with the two years of incarceration. Under condition (k)(4) of the orders of supervision for probation, Goldwire was required not to “violate any law of any city, county, state or the United States.” Gold-wire was subsequently charged by affidavit with violation of probation (“VOP”) for violating condition (k)(4) by commission of a criminal offense of possession of weapon or ammunition by a felon.

After Goldwire was charged, a final hearing was held to simultaneously consider a motion to suppress and VOP. The court believed that because Goldwire’s youthful offender VOP was based on substantive charges, it no longer had discretion for sentence imposition and was required to use the Criminal Punishment Code guidelines for sentencing. The trial court found that Goldwire was on probation, was a convicted felon, and violated his probation. The court revoked Goldwire’s probation and sentenced him to twenty years imprisonment for robbery with a firearm with a ten-year minimum mandatory sentence. Goldwire was also sentenced to five years on the grand theft count, to be served concurrently with the twenty-year sentence. Goldwire filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), contending that the court erred in sentencing him under the mistaken belief that it was required to impose adult sanctions. The trial court did not file a timely order in response to the motion, thus it is considered denied under Florida Rule of Criminal Procedure 3.800(b)(2)(B). Goldwire appealed the denial of his motion.

“[A] motion to correct a sentencing error involves a pure issue of law,” so the proper standard of review is de novo. Kittles v. State, 31 So.3d 283, 284 (Fla. 4th DCA 2010). Chapter 958 of the Florida Statutes governs youthful offenders. Specifically, section 958.14 discusses a youthful offender’s violation of probation.

A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06. However, no youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.

§ 958.14, Fla. Stat. (2010). Section 948.06 states, in regards to violations of probation, that “the court may revoke, modify, or continue the probation or community control or place the probationer into community control.” § 948.06(2)(e), Fla. Stat. (2010) (emphasis added).

This court has stated that if a “violation was substantive, the court could impose a sentence up to the maximum for the offenses.” Bryant v. State, 876 So.2d 623, 628 (Fla. 4th DCA 2004) (emphasis added). Additionally, the First District Court of Appeal stated that “a trial court may impose a non-youthful offender sentence on a youthful offender who commits violations of probation that involve new substantive offenses ... [and] the trial court [is] not limited to a youthful offender sentence.” Willis v. State, 744 So.2d 1265, 1266 (Fla. 1st DCA 1999) (citing Hill v. State, 692 So.2d 277, 278 (Fla. 5th DCA 1997) (stating that a trial court is permitted to exceed youthful offender maximum sentences); Johnson v. State, 678 So.2d 934, 934-35 (Fla. 3d DCA 1996) (providing that a youthful offender may be sentenced as a non-youthful offender for commission of a substantive violation while on probation); Dunbar v. State, 664 So.2d 1093, 1094 (Fla. 2d DCA 1995)). Accordingly, it is within the trial court’s discretion to determine whether a youthful offender should be sentenced as such, or if it should impose a non-youthful offender sentence when a substantive violation occurs. Therefore, the trial court is not required to impose the minimum mandatory sentence, but instead, is able to do so when exercising its discretion, dependent upon the circumstances of the case.

This court has stated that where “the record suggests that the trial court mistakenly believed it had no discretion ... to sentence appellant,” the case should be remanded for “the trial court [to] exercise its sentencing discretion and consider all sentencing alternatives.” Munnerlyn v. State, 795 So.2d 171, 171 (Fla. 4th DCA 2001). However, the State’s position was that the trial court was misled by Gold-wire’s counsel to believe that it no longer had discretion to re-sentence him as a youthful offender, thus invoking the “invited-error doctrine.” During the hearing, Goldwire’s counsel stated that “this court does not have an option other than the ten year minimum mandatory” and the court responded “I lose discretion.” Goldwire’s counsel then supplemented that statement with “because there was a substantive charge. So, he goes back to the original guidelines.” The court responded that Goldwire’s counsel was correct. The State refers to this as an “invited error.”

“ ‘[U]nder the invited error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.’ ” Cordoba v. Rodriguez, 939 So.2d 319, 323 (Fla. 4th DCA 2006) (quoting Goodwin v. State, 751 So.2d 537, 544 n. 8 (Fla.1999)). If the record does not show that the party invited error, the case should be remanded for re-sentencing so the trial court can examine its decision and determine whether it wants to impose a different sentence. See Soanes v. State, 31 So.3d 914, 914-15 (Fla. 4th DCA 2010). Here, the record is void of any indication that defense counsel was inviting error or if she was simply mistaken as well. Invited error typically occurs when the defendant is the beneficiary of some benefit at trial or sentencing. Here, Goldwire was actually receiving a more stringent sentence than the court had the discretion to impose, thus he was not benefitting.

Therefore, we remand this case to the trial court for re-sentencing so the trial court can exercise its discretion in sentencing Goldwire. While the trial court might issue the same sentence, we remand to allow the trial court to properly consider all sentencing options with the knowledge that it has discretion, rather than being of the belief it is required to sentence in a particular way.

Reversed and Remanded.

WARNER, J., and EHRLICH, MERRILEE, Associate Judge, concur.

      . In Florida, robbery with a firearm "is a felony of the first degree, punishable by imprisonment for a term of years.” § 812.13(2)(a), Fla. Stat. (2010).

      . In Florida, grand theft of a motor vehicle is a third-degree felony. § 812.014(2)(c), Fla. Stat. (2010). Grand theft of a motor vehicle is punishable by a maximum of five years in state prison. § 775.082(3)(d), Fla. Stat. (2010).


text:
    Lindsey Antwan BUTLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5428.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2011.
    Barbara Hobbs, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

WOLF, LEWIS, and WETHERELL, JJ., concur.


author: EVANDER, J.

text:
    Kimberly A. GRIDER-GARCIA, Appellant, v. STATE FARM MUTUAL AUTOMOBILE, etc., et al, Appellees.
    No. 5D10-1238.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.

      Steven J. Kirschner of Steven J. Kir-sehner, P.A., Winter Park, for Appellant.
    Robert A. Kingsford, of Kingsford Law Offices, P.A., Maitland, for Appellee State Farm Mutual Automobile Insurance Company.
    No Appearance for Appellee Jose Juan Garcia.
   EVANDER, J.

Kimberly Grider-Garcia appeals a final judgment in favor of State Farm Mutual Automobile Insurance Company, entered after the trial court had granted State Farm’s motion for directed verdict at the conclusion of Grider-Garcia’s presentation of evidence. The deficiency in Grider-Garcia’s proof was her failure to introduce into evidence the insurance policy upon which she had based her claim. When this deficiency was brought to her attention during argument on State Farm’s motion, Grider-Garcia promptly sought to reopen her case to introduce the policy. The trial court denied Grider-Garcia’s request to reopen and granted the directed verdict. We conclude that the denial of the motion to reopen constituted an abuse of discretion.

Grider-Garcia and her now former husband filed a breach of contract action against State Farm. The complaint alleged that State Farm had issued an insurance policy on the plaintiffs’ Mazda Protege; that the vehicle had been stolen and subsequently destroyed; that the insurance policy provided coverage for such loss; and that State Farm had breached the insurance contract by refusing to pay the claimed loss. A copy of the insurance policy was attached to the complaint.

In its answer, State Farm admitted that it had issued an automobile insurance policy to the plaintiffs and that such policy was in effect at the time of the claimed loss. However, State Farm denied that the loss was covered by the insurance policy, alleging, inter alia, that the “alleged loss in question was intentionally caused by or at the direction of the Plaintiffs or with their knowledge and acquiescence .... ”

The case proceeded to jury trial. Betty Lucas, an employee of State Farm’s special investigative unit, was one of the witnesses called during Grider-Garcia’s case. She acknowledged that State Farm had issued an automobile insurance policy to the plaintiffs and that such policy was in effect at the time of the claimed loss. She further testified, without objection, as to the coverages provided by such policy.

After Grider-Garcia rested, State Farm argued that it was entitled to a directed verdict because a breach of contract could not be shown without the actual contract being entered into evidence. In response, Grider-Garcia’s counsel argued that the insurance policy had been attached to the complaint. After the trial court correctly observed that attaching a document to the complaint did not place it in evidence, counsel argued:

There has been no defense that there was no coverage in this case. I would ask then, in order to speed things along, I can certainly put Ms. Grider-Garcia on the stand, reopen my case and have the insurance policy entered into evidence if that would clean that up.

The trial judge briefly took the matter under advisement and then, upon return to the courtroom, announced that State Farm’s motion would be granted ■ because of the failure to place the insurance policy into evidence. A second request to reopen the case, made immediately after the trial court’s pronouncement, was also unsuccessful.

As a general rule, a trial court has broad discretion to allow a party to reopen its case and present additional evidence, whether it does so after a party rests, after the close of all evidence, or even after having directed a verdict for one party. Amador v. Amador, 796 So.2d 1212, 1213 (Fla. 3d DCA 2001). In determining whether to permit a party to reopen his case, the court should consider (1) the timeliness of the request, (2) the character of the evidence sought to be introduced, (3) the effect of allowing the evidence to be admitted, and (4) the reasonableness of the excuse justifying the request to reopen. Register v. State, 718 So.2d 350 (Fla. 5th DCA 1998). Here, all four factors strongly support Grider-Garcia’s argument. The request to reopen was made prior to the court’s ruling on the motion for directed verdict; the evidence sought to be introduced had apparently not been the subject of dispute during the course of litigation; State Farm would suffer no prejudice; and counsel’s belief that the policy attached to the complaint was a part of the evidence, while incorrect, was not unreasonable. Under these circumstances, the denial of the motion to reopen was an abuse of discretion. See Amador (trial court abused its discretion at attorney’s fees hearing where it denied motion to reopen case to present evidence of fee agreement where introduction of this limited evidence would not have unfairly prejudiced opposing party and would have served best interest of justice); Midland-Guardian Co. v. Hagin, 370 So.2d 25 (Fla. 2d DCA 1979) (abuse of discretion to deny motion to reopen case to introduce note, reinstallment contract and assignment, where documents were already in court file and copies had been attached to complaint); Akins v. Taylor, 314 So.2d 13 (Fla. 1st DCA 1975) (abuse of discretion to deny motion to reopen case to allow plaintiff to put in evidence defendants’ answers to interrogatories identifying driver of tractor-trailer which had been involved in accident with vehicle in which plaintiff had been passenger, and showing that tractor-trailer was being operated at time under lease to corporate defendant, where identification of driver and lease were admitted by defendants in answers to interrogatories and failure to have documents placed in evidence was purely an oversight).

REVERSED and REMANDED FOR NEW TRIAL.

TORPY and LAWSON, JJ., concur.

      . Grider-Garcia's former husband did not appear at trial and has not participated in this appeal. The record suggests that he had assigned his rights to the insurance proceeds, if any, to Grider-Garcia.

      . Based on Grider-Garcia’s concession in her reply brief that her claimed damages were less than $15,000, the circuit court, after remand, should transfer this case to the county court.


text:
    Erik MOTA, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1471.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (asserting that accused may, after invoking right to counsel, voluntarily initiate further communication with police).

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


text:
    FIFTH THIRD BANK, etc., Petitioner, v. ACA PLUS, INC., Ronald J. Thurston, et al., Respondents.
    No. 5D11-64.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.

      W. Glenn Jensen, Mychal J. Katz and Christopher D. Donovan of Roetzel & An-dress, LPA, Orlando, for Petitioner.
    John A. Baldwin of Baldwin & Morrison, P.A., Fern Park, for Respondents.
   EVANDER, J.

Petitioner, Fifth Third Bank, seeks review of an order compelling disclosure of six documents for which it asserted a claim of either attorney-client privilege or work product. One of the documents was properly found by the trial court to constitute work product and another document was properly determined to be a privileged attorney-client communication. The trial court, nonetheless, ordered production of these documents after determining that Petitioner waived its objections by filing an “untimely” privilege log. We conclude that no waiver occurred and that the trial court’s order constituted a departure from the essential requirements of law. We further determine that Petitioner should not have been required to produce three of the other four documents at issue and that it was improper for the trial court to impose sanctions against Petitioner.

On May 26, 2010, Respondents served their Second Request to Produce on Petitioner. Petitioner timely responded, raising numerous objections to some of the requests but agreeing to produce other documents at a mutually-agreed upon time and place. Demand for payment of copying costs was also made. Respondents’ counsel ignored Petitioner’s counsel’s attempts to arrange a mutually convenient time and place for production of documents, instead filing a Motion to Compel and to Impose Sanctions. After hearing the motion on August 4, 2010, the trial court ordered Petitioner to deliver copies of all documents responsive to the request to produce, along with a corresponding privilege log, to the office of Respondent’s counsel no later than August 6, 2010. Respondents were directed to reimburse Petitioner for the cost of copies at a rate of $.03/page. The trial court did not rule on Petitioner’s various objections at this hearing. On August 6, 2010, Petitioner produced the privilege log as well as hundreds of pages of requested documents.

The trial court subsequently held a hearing on December 1, 2010, to determine the propriety of Petitioner’s objections to the Second Request to Produce. It also conducted an in camera review of the documents for which a claim of work product or attorney-client privilege had been asserted. The trial court ultimately determined that the document found at Produced Documents Page Numbers 247-49 was work product and that the document found at Produced Documents Page Number 597 was a privileged attorney-client communication. However, the trial court ruled that Petitioner’s privilege log was untimely filed and therefore its objections were waived. The four other documents at issue were also ordered to be disclosed and attorney’s fees were imposed against Petitioner as a sanction.

Review by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to the petitioner throughout the remainder of the proceedings and effectively leaving no adequate remedy on appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Certiorari is particularly appropriate to review an order which improperly requires a party to produce documents or disclose information for which a privilege is asserted because disclosure of privileged or protected material may cause irreparable injury. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1100 (Fla.1987); Beverly Enters.Fla., Inc. v. Ives, 832 So.2d 161, 162 (Fla. 5th DCA 2002), Wooten, Honeywell & Kest, P.A. v. Posner, 556 So.2d 1245, 1246-47 (Fla. 5th DCA 1990).

Here, the trial court’s finding of waiver was erroneous. Florida Rule of Civil Procedure 1.280(b)(5) provides that when a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the parties shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information that is itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. This rule does not set forth a time by which a privilege log must be filed.

In Bankers Security Insurance Co. v. Symons, 889 So.2d 93, 95-96 (Fla. 5th DCA 2004), this court held that failure to submit a privilege log by the due date for the response to the request to produce did not automatically constitute a waiver of the right to assert privilege or work-product immunity. In doing so, this court observed that the attorney-client privilege and work product immunity are important protections in the adversarial legal system and that finding an implicit waiver of these protections should not be favored, but resorted to only when the violation is serious. See also Gosman v. Luzinski, 937 So.2d 293, 296 (Fla. 4th DCA 2006).

In the instant case, the trial court resolved the parties’ disputes regarding copying costs and the time and location of document production at the August 4, 2010 hearing. At such time, the trial court ordered Petitioner to produce its privilege log within two days. Petitioner timely complied with that order. The trial court’s subsequent finding of an implicit waiver, based on a failure to file a privilege log within thirty days of the date of service of the Second Request to Produce, constituted a departure from the essential requirements of law.

We further determine that three of the other four documents (found at Produced Documents Page Numbers 250-56, 391, and 403) also constituted either protected work product or privileged attorney-client communication for which disclosure should not have been ordered. We find no error in the trial court’s decision requiring the production of the remaining document at issue.

Finally, based on our decision and our review of the record, we find no basis for the trial court’s imposition of sanctions against Petitioner.

PETITION GRANTED, in part; DENIED, in part.

SAWAYA and LAWSON, JJ„ concur.


text:
    Lorenzo BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2567.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.
    Lorenzo Brooks, Sanford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Lorenzo Brooks appeals the order entered by the trial court denying his latest motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

In 1991, an Orange County jury convicted Brooks of second-degree murder, and Brooks was sentenced to 40 years in the Department of Corrections. Brooks’ direct appeal was per curiam affirmed by this court in Brooks v. State, 609 So.2d 49 (Fla. 5th DCA 1992).

In the many years since then, Brooks has filed numerous postconviction actions at all levels of the state court system. He has never had success with any of them. His most recent frivolous rule 3.850 motion was filed in August 2010. Although Brooks was let out of prison on conditional release in September 2010, he has since been charged with violating the terms of his parole by committing new crimes in Seminole County, where he is currently being held. Thus, Brooks continued to pursue his most recent motion in the trial court in Orange County, leading to his current appeal.

On August 22, 2011, this court ordered Brooks to show cause why he should not be denied further access to this court for any proceeding to further attack his Orange County conviction. See Fla. R.Crim. P. 3.850(m); State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999). Having carefully considered Brooks’ response, we conclude that he has provided no valid reason for continuing to file frivolous appeals like this one. We hold that he is abusing the judicial process and that he should be barred from further pro se filings. See Steele v. State, 14 So.3d 221, 223 (Fla.2009) (the courts need to devote their finite resources to consideration of legitimate claims); Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (Defendant’s “pro se filings have become frivolous, an abuse of process, and a waste of the taxpayers’ money”); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995) (“Enough is enough.”)

We therefore prohibit Brooks from filing with this court any further pro se pleadings concerning his Orange County, Ninth Judicial Circuit Court Case No. 90-CF-5640. The Clerk of this court is directed not to accept any further pro se filings concerning this case from Lorenzo Brooks. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to Brooks and the appropriate institution for consideration of available disciplinary procedures. See Fla. R.Crim. P. 3.850(m). Rehearing will not be entertained.

AFFIRMED; Future pro se filings PROHIBITED.

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


text:
    Jose CONCEPCION, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2892.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.
    Jose Concepcion, Wewahicthka, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and treated as the notice of appeal from Petitioner’s violation of probation proceeding in case number 2001-14238-CF, in the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, EVANDER, and COHEN, JJ., concur.


text:
    Brad EVANS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3051.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.
    Brad Evans, Okeechobee, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the rule 3.850 motion in Case No. 05-1996-CF-29051-B in the Circuit Court in and for Brevard County. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and LAWSON, JJ., concur.


text:
    Jerry B. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3345.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.
    James S. Purdy, Public Defender, Day-tona. Beach, and Ralph Row, Assistant Public Defender, Palatka, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case Nos. 10-001515-CF-53, 10-1527-CF-53, 10-1565-CF-53 and 08-00763-CF-53, in the Circuit Court in and for Putnam County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

AFFIRMED.

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