text:
    Angel CABRERA, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5975.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.

      V.J. Jimmy Benincasa, Vero Beach, for Appellant.
   PER CURIAM.

Angel Cabrera appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose Omar CERNA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1104.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    Jan Peter Weiss, Lake Worth, for Appellant.
   PER CURIAM.

Jose Omar Cerna appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Patricia PICCA, Appellant, v. STATE OF FLORIDA, Appellee.
    No. 2D10-6106.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.

      Kelly L. Rooth and Shannon McLin Carlyle of Carlyle Law Firm, The Villages, for Appellant.
   PER CURIAM.

Patricia Picea appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


author: MORRIS, Judge.

text:
    Mourad BALZOURT, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5752.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

Mourad Balzourt appeals his convictions for first-degree murder and abuse of a dead human body. Because the State’s evidence was insufficient to prove premeditation, we conclude that the trial court erred in denying Balzourt’s motion for judgment of acquittal on the charge of first-degree murder. We also conclude that the trial court abused its discretion in admitting Williams rule evidence. Accordingly, we reverse and remand for a new trial on the charges of second-degree murder and abuse of a dead human body.

Balzourt was convicted of murdering his girlfriend, Solymarie Roman, and setting fire to her body in the woods in Polk County near Poinciana, Florida, in the morning hours of November 1, 2007. The cause of death was asphyxiation, and the State’s theory, based on the evidence, was that Balzourt manually strangled the victim. Prior to the trial, the State sought to admit Williams rule evidence that in 2000, Balzourt strangled his then-wife to the point of unconsciousness. The trial court allowed the State to introduce such evidence for the purpose of proving that Balz-ourt was the perpetrator of the charged murder.

On appeal, Balzourt contends that the trial court erred in admitting the Williams rule evidence because it was not similar enough to the charged homicide to be offered for purposes of proving identity. He claims that the only similarity between the collateral offense and the charged offense is manual strangulation, which is neither unique nor uncommon. Balzourt argues that the collateral evidence was irrelevant and offered only to show his bad character and propensity to choke women.

“[C]ollateral-crime evidence, such as bad acts not included in the charged offenses, is admissible when relevant to prove a material fact in issue, but is inadmissible when the evidence is relevant solely to prove bad character or propensity.” Wright v. State, 19 So.3d 277, 291-92 (Fla.2009); see § 90.404(2)(a), Fla. Stat. (2007). “ ‘When the purported relevancy of past crimes is to identify the perpetrator of the crime being tried, [Florida courts] have required a close similarity of facts, a unique or “fingerprint” type of information, for the evidence to be relevant.’ ” Kimbrough v. State, 700 So.2d 634, 637 (Fla.1997) (quoting State v. Savino, 567 So.2d 892, 894 (Fla.1990)).

The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared. A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant.

Drake v. State, 400 So.2d 1217, 1219 (Fla.1981). Evidence of a prior act “ ‘is not competent to prove the commission of a particular act charged against him, unless connected in such a way as to indicate a relevancy beyond mere similarity in certain particulars.’ ” Williams v. State, 110 So.2d 654, 659 (Fla.1959) (quoting 13 Fla. Jur. Evidence § 140).

In this case, we must consider evidence of two incidents of manual strangulation committed by a man against his domestic partner at the time. The Williams rule testimony was that Balzourt strangled his ex-wife during an argument. They pushed and hit each other back and forth, and then Balzourt strangled the ex-wife, causing her to lose consciousness. The State’s theory in this murder case was that Balz-ourt choked the victim during an argument over the victim’s ex-boyfriend, William Ju-sino. But the State presented no evidence regarding the circumstances leading up to and surrounding the actual physical event resulting in the victim’s death. The State was only able to present evidence on the cause of death, i.e., asphyxiation with evidence of manual strangulation and “burk-ing,” but not the circumstances leading up to the death. The State presented Jusi-no’s testimony that the victim called him in the middle of the night hours before her body was found. During the phone call, the victim told Jusino that things were over between her and Jusino and Jusino could tell that the victim was with Balzourt because Jusino could hear Balzourt in the background telling the victim what to say and to speak English. Jusino testified that he could tell that the victim was sad because her voice was broken, but he did not testify that he heard Balzourt and the victim arguing during the phone call.

As for the circumstances surrounding the victim’s death, the medical examiner agreed that there was evidence indicating that the victim may have been “burked.” In arguing for a judgment of acquittal on premeditation, the defense pointed out that the evidence was not inconsistent with the theory that the perpetrator was sitting on the victim’s chest, strangling her, and hitting her head on the ground. The ex-wife had been standing when she was strangled, but when she regained consciousness, she found herself lying on the floor. The medical examiner testified that it only takes seconds to render a person unconscious by strangulation, whereas it takes approximately two minutes to kill somebody by strangulation and “burking” and three to four minutes to kill somebody by strangulation alone. Because the State did not present evidence of the circumstances leading up to the victim’s death and because the evidence of the physical acts committed against the victim varied from the physical acts committed against the ex-wife, we cannot compare the two incidents to determine whether a domestic dispute and physical incident occurred between Balzourt and the victim similar to the one involving Balzourt and his ex-wife.

One circumstance that cuts against a finding of similarity is the fact that Balz-ourt’s ex-wife did not die as a result of the strangulation, yet the victim in this case died as a result of the strangulation. This distinguishing factor between the Williams rule evidence and the charged offense weighed greatly in Berube v. State, 5 So.3d 734, 741 (Fla. 2d DCA 2009). In Berube, the defendant was charged with murder by strangulation, and the State was permitted to introduce evidence that the defendant had physically battered and raped two other women in the past. This court considered “[m]ost important[ ] [the fact that] neither rape victim was murdered,” unlike the murder victim in the charged case. Id.

The Florida Supreme Court’s case in Drake is instructive on both similarity and uniqueness. In Drake, the murder victim met the defendant at a bar, left with him, and was later found dead with her hands bound behind her back. The State introduced Williams rule evidence that “on two prior occasions[,] [the defendant] had sexually assaulted two different women and had, during the course of those assaults, bound his victims’ hands behind their backs.” 400 So.2d at 1218.

The Drake court concluded that

[t]he only similarity between the two incidents introduced at trial and [the] murder is the tying of the hands behind the victims’ backs and that both had left a bar with the defendant. There are many dissimilarities, not the least of which is that the collateral incidents involved only sexual assaults while the instant case involved murder with little, if any, evidence of sexual abuse.

Id. at 1219. .In regard to uniqueness or unusualness, the court noted that the “[blinding of the hands occurs in many crimes involving many different criminal defendants. This binding is not sufficiently unusual to point to the defendant in this case, and it is, therefore, irrelevant to prove identity.” Id. (footnote omitted).

We cannot conclude in this case that identifiable points of similarity pervade the compared factual situations. Even if we could conclude that the Williams rule evidence was similar enough to the charged offense, we cannot conclude that both crimes have a special character or are so unusual as to point to Balzourt. “Collateral crime evidence ... is not relevant and admissible merely because it involves the same type of offense.” Peek v. State, 488 So.2d 52, 55 (Fla.1986).

The only factor here that might make the compared offenses unique or unusual is that they were committed by Balzourt against his significant other at the time. But as in Drake, the dissimilarities between the two offenses in this case are many. Balzourt’s ex-wife was strangled while fighting with Balzourt, but we do not know if this happened with the victim, who was likely strangled but also possibly “burked.” The ex-wife was only rendered unconscious, while the victim was killed. It is not known what the ex-wife and Balz-ourt were arguing about, but it is alleged that Balzourt and the victim were arguing about the victim’s ex-boyfriend. The argument between the ex-wife and Balzourt occurred during the day, but the alleged argument between Balzourt and the victim occurred in the middle of the night. Also, as with the binding of the hands in Drake, the strangling or asphyxiation of someone is not so unique or unusual as to point to the defendant because it occurs in many different cases involving criminal defendants in various situations. See generally Muehleman v. State, 3 So.3d 1149, 1166 (Fla.2009) (defendant convicted of murdering ninety-two-year-old man so defendant could steal from him; defendant attempted to kill the victim by “strangling] [him] for a lengthy period of time”); Berube, 5 So.3d 734 (defendant manually strangled prostitute with whom he had sexual intercourse); Randall v. State, 760 So.2d 892 (Fla.2000) (defendant manually strangled prostitutes during sexual activity for purpose of sexual gratification; defendant had also previously strangled women with whom he had romantic relationships); Perez-Ortiz v. State, 954 So.2d 1256 (Fla. 5th DCA 2007) (defendant charged with strangling his estranged wife); Dupree v. State, 615 So.2d 713 (Fla. 1st DCA 1993) (defendant strangled a woman with whom he had been socializing the day before her body was found).

Because the Williams rule evidence was not sufficiently similar to the charged offense or sufficiently unusual so as to point to Balzourt as the perpetrator of the charged offense, we conclude that the trial court abused its discretion in admitting the Williams rule evidence. And because the State’s evidence against Balzourt was totally circumstantial, we cannot say that the error was harmless. See Williams v. State, 662 So.2d 419, 420 (Fla. 3d DCA 1995) (“Improperly admitting Williams rule evidence is presumed harmful error”). Accordingly, Balzourt is entitled to a new trial.

Balzourt also argues on appeal that the trial court erred in denying his motion for judgment of acquittal on the murder count because the evidence presented by the State was insufficient to prove that Balzourt was the perpetrator of the crime or that he had the premeditation necessary to sustain a conviction for first-degree murder. We conclude that the State’s evidence was sufficient for the jury to find beyond a reasonable doubt that Balzourt was the perpetrator, but we agree that the State failed to prove the element of premeditation beyond a reasonable doubt.

Premeditation is a fully formed conscious purpose to kill which “ ‘must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.’ ” Berube, 5 So.3d at 743 (quoting Coolen v. State, 696 So.2d 738, 741 (Fla.1997)). “Premeditation may be proven by circumstantial evidence.” Hoefert v. State, 617 So.2d 1046, 1048 (Fla.1993).

However, “[wjhere the element of premeditation is sought to be established by circumstantial evidence, the evidence relied upon by the state must be inconsistent with every other reasonable inference..” Cochran v. State, 547 So.2d 928, 930 (Fla.1989). Where the State’s proof fails to exclude a reasonable hypothesis that the homicide occurred other than by premeditated design, a verdict of first-degree murder cannot be sustained. Hall v. State, 403 So.2d 1319 (Fla.1981).
“ ‘Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.’ ” Holton v. State, 573 So.2d 284, 289 (Fla.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991) (quoting Larry v. State, 104 So.2d 352, 354 (Fla.1958)).

Hoefert, 617 So.2d at 1048 (alteration in original) (emphasis added).

“Florida courts deem evidence of killing by strangulation alone to be insufficient to support a jury finding of premeditation.” Berube, 5 So.3d at 744. “However, evidence of strangulation, in conjunction with one or more additional facts indicating that the killer had time to reflect upon his actions and to form a conscious purpose to kill, justifies submitting the question of premeditation to the jury for its determination.” Id. (citing Dupree v. State, 615 So.2d 713, 718 n. 1 (Fla. 1st DCA 1993) (noting that “strangulation, in conjunction with other facts, such as evidence of a struggle or other injuries inflicted prior to the strangulation, indicates that the assailant had sufficient time within which to reflect upon his or her actions prior to the strangulation, thereby justifying submission of the question of premeditation to the jury”)).

In Berube, this court held that the evidence was sufficient to prove premeditation for two reasons. Id. at 744-45. First, the State proved that the victim had five ligature marks on her neck, indicating that the killer had to reposition the cord several times. Id. at 744. Thus, the jury could infer that the killer had time to reflect on his actions: ‘We conclude that the repetitive nature of the killer’s actions in repositioning the cord multiple times to begin the strangulation process anew is a factor from which the jury might properly infer premeditation.” Id. (citing several cases in which premeditation was proven because strangulation occurred in addition to at least one other act that would take additional time).

Second, the State presented substantial evidence of an intense struggle between the victim and her assailant: she had contusions on her neck, elbow, and thigh, the defendant’s blood was found on the wall, the victim had DNA consistent with the defendant under her fingernails, and the victim had cried for help. Id. at 744-45. “[T]he evidence of a struggle occurring shortly before or during the killer’s time-consuming process of suffocating the victim is an additional fact supporting the jury’s finding of premeditation.” Id. at 745 (citing several cases in which premeditation was proven because the evidence showed that the victim struggled with her assailant). The court in Berube concluded that

the State presented evidence — in addition to the bare fact that the victim was strangled to death — tending to show premeditation. This evidence consisted of (1) the repositioning of the cord around the victim’s neck multiple times and (2) the ample physical evidence indicating that the victim’s strangulation occurred during or immediately after an intense struggle between the killer and the victim. We conclude that this evidence was sufficient for the jury to find beyond a reasonable doubt that the victim’s murder was premeditated.

Id.

In this case, the medical examiner, Dr. Nelson, testified that the victim had “areas of hemorrhage in the hyoid bone, which is the tiny little U-shaped bone that is up into your neck, that your tongue attaches to.” There was “a fracture associated with hemorrhage on both sides.” These injuries were suffered while the victim was alive. Dr. Nelson also testified that the victim suffered a hemorrhage on her tongue, indicating that she bit it while she was still alive. She also had areas of bruising on her head:

Way deep into the back part of her upper neck — this is still her skull. These are the black areas associated with the blows, you see even more here, lower down. So all of these black-blue areas are just that, black-and-blue marks from contusions or bruises from blows to the head. Again, not a postpartum finding. These are — occurred in life, while she’s alive.

Dr. Nelson testified that the victim could have been hit five times on the head:

There’s at least probably two separate areas, and they appear to be paired on both sides of the back of the head and then further down on the right side. So perhaps depending on how you count the paired areas, whether they’re one/two, or this is all one with some type of paired object, it’s either two per side, so two, three, four perhaps, or five, depending on how you count them.

When asked if the victim had defensive wounds, Dr. Nelson testified as follows:

The only thing that she has that is unusual is hemorrhage on the front part of her chest and sternum. She has an area of hemorrhage that measures about 7 by 4 centimeters, so maybe about 3 by 2 inches roughly, a little bit smaller than that, in the center part of her chest underneath her skin, on top of her sternum. But her rib cage and her chest plate, her sternum are intact. She doesn’t have any fractures there, but she does have this area of hemorrhage here, and she also has an area of hemorrhage that’s present on the left side on the undersurface in the very, very top of her chest. Again, no rib fractures, but she’s got bleeding up into the top part of her chest, as well as this area on the — on the sternum.

Dr. Nelson testified that the injuries to the hyoid bone and tongue were “very consistent with strangulation.” He also testified that smothering, which could have happened to the victim, would not typically produce the injuries to the hyoid bone. On cross-examination, Dr. Nelson testified that the victim could have been “burked” and that the injuries to her chest were consistent with “burking.” Dr. Nelson agreed that if somebody is “being burked while they’re being manually strangled, [it is possible that] the three or four minutes that it takes to kill somebody could go back to two minutes.”

A forensic anthropologist also testified that the victim had one fracture on her tibia and one fracture on her fibula, both of which occurred prior to the fire and were not a result of the fire.

In sum, the State presented evidence that the victim suffered injuries indicating that she had been more than manually strangled. But the State did not prove that those additional injuries were the result of a struggle or any other act prolonging the strangulation. In arguing for the judgment of acquittal on premeditation, the defense pointed out that the evidence was not inconsistent with the victim’s being strangled while lying on the ground with the perpetrator on top of her chest, hitting her head on the ground. Under this theory, the victim’s death would have occurred in less time than if she had been only manually strangled. After reviewing the evidence, we conclude that the State did not present evidence that was inconsistent with this theory.

We recognize that the State did present evidence that the victim suffered two fractures to her leg. And while this could have been the result of a struggle while the defendant was still alive, the defense’s theory was that these fractures occurred after the victim was killed and when the body was taken to the woods to be placed on fire. The State did not present any evidence that was inconsistent with this hypothesis of innocence; the State only presented evidence that these fractures occurred before the victim’s body was set on fire, not that they occurred while the victim was alive or while she was being killed. Cf. Berube, 5 So.3d at 745 (“We conclude that the evidence of a struggle occurring shortly before or during the killer’s time-consuming process of suffocating the victim is an additional fact supporting the jury’s finding of premeditation.”).

While the State’s evidence did show that the victim suffered injuries indicative of more than just manual strangulation, the State did not show that these injuries were inflicted in a manner that resulted in a prolonged strangulation or cause of death that would have allowed the killer sufficient time to reflect on his actions. See Green v. State, 715 So.2d 940 (Fla.1998) (holding that despite evidence that defendant threatened to kill victim, evidence that victim suffered stabbing and blunt trauma wounds along with manual strangulation, which was cause of death, was insufficient to prove that defendant had the requisite premeditation required for first-degree murder); cf. Perez-Ortiz, 954 So.2d at 1259-60 (“After being strangled, but while still breathing, [the victim] was drowned in an inch of water, in her tub. The only reasonable inference to be drawn from this evidence is that [defendant, after strangling [the victim], either held her face into the water, or placed her face-down in the water while she was unconscious. Given the time and forethought that would have been required to prepare the water, or even move the victim into it, after strangling her, we find the evidence sufficient to support a conviction for first[-]degree murder.”).

On appeal, the State argues only that the victim had aspirated blood in her lungs and that a jury could infer from this evidence that the strangling was intermittent because she was able to breathe in blood that had been caused by internal injuries to her tongue or airway. While Dr. Nelson testified that the victim breathed blood into her lungs while she was alive, there is no evidence that her being able to take a breath prolonged her death enough to support a finding of premeditation.

In addition, the State did not present any other circumstantial evidence suggesting that Balzourt had a fully formed conscious purpose to kill the victim. Balzourt had not made any earlier statements that he was going to kill the victim, and there were no witnesses to the event. See Kirkland v. State, 684 So.2d 732, 735 (Fla.1996) (holding that premeditation was not proven and noting that “there was no suggestion that [the defendant] exhibited, mentioned, or even possessed an intent to kill the victim at any time prior to the actual homicide” and that “there were no witnesses to the events immediately preceding the homicide”). The State presented evidence that Balzourt made efforts to conceal and burn the victim's body, but this evidence does not support an inference that he had the specific intent to kill the victim. See Norton v. State, 709 So.2d 87, 93 (Fla.1997) (“[T]he fact that appellant may have taken steps to conceal evidence of a crime does not establish that he committed murder with a preconceived plan or design. Efforts to conceal evidence of premeditated murder are likely to be as consistent with efforts to avoid prosecution for any unlawful killing.” (citation omitted)).

Based on the above analysis, we conclude that the evidence was insufficient to support the finding of premeditation necessary for the conviction of first-degree murder. We conclude, however, that the evidence was sufficient to support a conviction for second-degree murder. See Kirkland, 684 So.2d at 735-36 (concluding that there was insufficient evidence to prove premeditation but reversing for entry of second-degree murder conviction); Berube, 5 So.3d at 743 (“ ‘Premeditation is the essential element which distinguishes first-degree murder from second-degree murder.’ ” (quoting Coolen, 696 So.2d at 741)). As discussed above, Balzourt is entitled to a new trial based on the Williams rule error. On retrial of the murder charge, the State may proceed only on the charge of second-degree murder because Balzourt was entitled to a judgment of acquittal on the charge of first-degree murder and the State is barred by principles of double jeopardy from retrying him for first-degree murder. See Barton v. State, 704 So.2d 569, 573 (Fla. 1st DCA 1997) (“When an appellate court determines that the evidence presented in a criminal trial is insufficient as a matter of law, the prohibition against double jeopardy prevents retrial .... ” (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); McArthur v. Nourse, 369 So.2d 578 (Fla.1979))).

Reversed and remanded for proceedings consistent with this opinion.

SILBERMAN, C.J., and WALLACE, J., Concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . Balzourt was sentenced to life in prison on the murder count followed by fifteen years on the abuse of a dead body count.

      . The medical examiner, Dr. Stephen Nelson, testified that “burking” is a specific type of killing by asphyxiation. The term came from England in the 1800s, when two men killed people and sold the bodies to a local scientist. The heavier man, named Burke, would sit on the victims’ chests, causing compression to their lungs.

      . Jusino and the victim would speak Spanish to each other, but Balzourt did not speak Spanish.


author: LaROSE, Judge.

text:
    Raidel CORDERO-ARTIGAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2469.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.

      James Marion Moorman, Public Defender, and Chandra Waite Dasrat, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Raidel Cordero-Artigas appeals his convictions and sentences for manufacture of a controlled substance and possession of drug paraphernalia. See §§ 893.18(l)(a)(2), .147(1), Fla. Stat. (2007). He argues that the trial court should have granted his motion for judgment of acquittal because the State’s evidence was insufficient to convict him. We agree and reverse.

The Sarasota County Sheriffs Office Narcotics Bureau suspected that a newly built North Port residence was a marijuana grow house. Detective Torres conducted surveillance on the house for two months. During that time, he observed but four individuals at the property. One was Mr. Cordero. Detective Torres first saw him on December 13, 2007, in the garage. Two white pickup trucks were parked outside. He did not see Mr. Cordero go inside the house. Later, Mr. Cordero and his cousin, Alfredo Lazo, left in one of the trucks. Detective Torres learned that the other truck belonged to Antonio Herrero. Detective Torres acknowledged that marijuana plants most likely were not on the property that day.

On December 15, Detective Torres saw one white pickup truck at the house. He next saw a white Ford Crown Victoria at the house on January 2, 2008. It was in the driveway backed up close to the garage. Detective Torres saw construction supplies in the garage. Several hours later, Mr. Herrero came out of the house and drove away in the Crown Victoria.

On January 16, Detective Torres observed that a new fence had been installed. On January 17, another detective, Detective Eastwood, reported what he believed was air conditioner noise. On January 18, Detective Torres saw both Mr. Herrero’s white truck and Crown Victoria in the driveway.

Detective Torres saw Mr. Cordero for a second time on February 8, 2008. Mr. Cordero drove a Mustang and parked on the street in front of the house. He did not go into the house; he only picked up Mr. Herrero and Mr. Herrero’s wife, Magnolia Cabrera, and drove away. Detective Torres followed the Mustang onto 1-75 southbound and radioed Florida Highway Patrol to stop the vehicle. A trooper stopped them for speeding. The trooper also conducted a consensual search of Ms. Cabrera’s handbag; he found no contraband.

On February 20, 2008, Detective Torres obtained and executed a search warrant for the house. He found marijuana plants and a host of growing paraphernalia. Two sheets of paper taped to a wall in the south grow room contained instructions for fertilizing marijuana. A right thumb print and a left index finger print on the back of one page and the front of the other page matched Mr. Cordero’s prints. Mr. Lazo’s fingerprints were on an air conditioner in that room. A fingerprint expert testified at trial that she reviewed ninety fingerprints from the grow house. Of the ninety prints found in the grow house, only the two on the instructions matched Mr. Cordero’s prints.

Arrest warrants issued for Mr. Herrero, Ms. Cabrera, Mr. Lazo, and Mr. Cordero. Mr. Herrero and Ms. Cabrera were never found. After his arrest, Mr. Cordero offered to assist in the investigation. He told detectives that he knew from a comment Ms. Cabrera made at the traffic stop that she and Mr. Herrero were operating a grow house. Mr. Lazo was arrested, but the charges against him were dropped. He was listed as a defense witness for Mr. Cordero, but he did not appear at trial.

The trial court denied Mr. Cordero’s motion for a judgment of acquittal, and the jury convicted him as charged. The trial court denied his renewed motion for judgment of acquittal notwithstanding the verdict. The State takes the position that Mr. Cordero’s presence at the house on two occasions, his fingerprints on the instructions, and his knowledge of the grow operation were sufficient to defeat the motion.

Testifying on his own behalf, Mr. Corde-ro explained the two fingerprints. He claimed that Mr. Herrero asked Mr. Lazo to pick up two air conditioners at Mr. Herrero’s house in Miami and bring them to the house in North Port. Mr. Cordero helped his cousin. As they loaded the air conditioners into Mr. Lazo’s truck, Mr. Cordero noticed some papers on top of the box holding one of the air conditioners. He thought they might be warranty documents. He put the papers into the box without reading them. He and Mr. Lazo delivered the air conditioners to the garage of the North Port house. Ms. Cabrera invited them in for lunch. They ate in the kitchen and did not go into the main part of house. Mr. Cordero did not see any marijuana.

Mr. Cordero testified that he was at the house only twice — the two times detectives surveilling the house saw him there. Once was to deliver the air conditioners. Detective Torres testified that Mr. Cordero left through the garage door. The second time was to pick up Mr. Herrero and Ms. Cabrera to drive them to Miami. Detective Torres confirmed that Mr. Cordero picked them up outside. Soon after he picked them up, he was stopped for speeding. After the trooper left, Ms. Cabrera told Mr. Cordero that she was nervous because she and Mr. Herrero were growing marijuana in the house. Mr. Cordero testified that this was the first he knew about it.

Analysis

Circumstantial evidence, including presence at the crime scene and fingerprints, is an “‘incriminating circumstance[ ] which the jury may consider as tending to show guilt if evidence thereof is allowed to go to the jury unexplained or unrebutted by evidence of exculpatory facts and circumstances.’ ” Walker v. State, 896 So.2d 712, 717 (Fla.2005) (quoting State v. Young, 217 So.2d 567, 571 (Fla.1968)). “ ‘A motion for judgment of acquittal should be granted in a circumstantial evidence case if the [S]tate fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.... [I]f the [S]tate does not offer evidence which is inconsistent with the defendant’s hypothesis, ... [t]he [S]tate’s evidence would be as a matter of law “insufficient to warrant a conviction.” Fla. R.Crim. P. 3.380.’ ” Darling v. State, 808 So.2d 145, 155-56 (Fla.2002) (quoting State v. Law, 559 So.2d 187, 188-89 (Fla.1989)). “ ‘It is not sufficient that the facts create a strong probability of, and be consistent with, guilt. They must be inconsistent with innocence.’ ” Lindsey v. State, 14 So.3d 211, 215 (Fla.2009) (quoting Frank v. State, 121 Fla. 53, 163 So. 223, 223 (1935)).

“It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict.” Id. (quoting Ballard v. State, 923 So.2d 475, 482 (Fla.2006)). If the State introduces competent evidence that conflicts with the defendant’s theory of events, “it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond reasonable doubt.” State v. Law, 559 So.2d 187, 189 (Fla.1989); see, e.g., Norton v. State, 709 So.2d 87, 91 (Fla.1997) (holding conflict between defendant’s claim that he was at home asleep at time of murder with testimony of eyewitness that he saw defendant with victim near time of murder sufficient to avoid judgment of acquittal); Burkell v. State, 992 So.2d 848, 852 (Fla. 4th DCA 2008) (holding conflict between defendant’s claim that he was wearing sandals when he found body of victim who rented room in his house and evidence of defendant’s bloody bare footprints at scene sufficient to avoid judgment of acquittal).

But circumstantial evidence is insufficient to convict if the State’s evidence does not conflict with the defendant’s reasonable theory of events. For example, Jaramillo v. State, 417 So.2d 257 (Fla.1982), held that the defendant’s fingerprints found on a knife in the residence where a shooting occurred were legally insufficient to convict him of the shooting. The State failed to present evidence that was inconsistent with Mr. Jaramillo’s reasonable explanation that he helped the victim’s nephew cut boxes the previous day using the nephew’s knife. Id. at 258. Similarly, in Hill v. State, 973 So.2d 655, 655-56 (Fla. 2d DCA 2008), we held that the State’s only evidence against the defendant, his fingerprints found on a piece of broken window glass outside the burglary scene, was insufficient to convict him because the State presented no evidence that the fingerprints could have been made only at the time of the crime.

Leonard v. State, 731 So.2d 712 (Fla. 2d DCA 1999), also is instructive. Law enforcement found Mr. Leonard’s thumb print on the bottom of a box of candy bars in the victim’s refrigerator. Id. at 719. His girlfriend testified that she and he shopped at the same grocery store the victim used, that he often bought boxes of candy bars for her children, and that he sometimes returned a box to the shelf if they did not have enough money to buy it. Id.

Mr. Leonard appealed his conviction, arguing, like Mr. Cordero, that the trial court erred in denying his motion for a judgment of acquittal because the evidence was not inconsistent with his version of events. Id. at 716 (citing Long v. State, 689 So.2d 1055, 1057 (Fla.1997) (stating that in circumstantial evidence case, State must produce evidence inconsistent with any reasonable hypothesis of innocence)). We noted that, “unlike Jaramillo, in addition to the fingerprint there was a necklace that Leonard pawned three weeks after the crime.” Id. at 718. It matched the description of a gold necklace with a white gold strand stolen in the burglary. Id. at 714. A jury could and did find that the necklace Mr. Leonard pawned was the one stolen; this conflicted with his theory of innocence by linking him to the crime with no reasonable explanation as to how he obtained it. Id. at 719. We affirmed Mr. Leonard’s conviction, holding that “the trial court could have determined that Leonard’s theory of events that his fingerprints could have been placed on the bottom of the same box of candy at the same supermarket where the victim subsequently purchased the candy box was so remote that it was inconsistent with the State’s evidence.” Id. at 719.

In contrast, Mr. Cordero’s reasonable explanation that the papers were on top of the air conditioner box and that he slipped them into the box without reading them explains the presence of his fingerprints without knowledge of the crime. The State introduced no conflicting evidence to suggest Mr. Cordero’s involvement in the grow house operation. Mr. Cordero’s explanation, unlike that in Leonard, is not so remote as to render it inconsistent with the State’s evidence. Therefore, on the record before us, we must reverse.

Reversed.

CASANUEVA and MORRIS, JJ., Concur.


text:
    Marco A. MIRANDA, Appellant, v. Monica MUNOZ-ORTIZ, Appellee.
    No. 2D10-3082.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    Marco A. Miranda, pro se.
    No appearance for Appellee.
   MORRIS, Judge.

Marco Miranda, the father, appeals a final order on parental responsibility, time-sharing, and other matters relating to the minor children. The order grants Monica Munoz-Ortiz, the mother, sole parental responsibility and sole timesharing of the parties’ four children. The father raises three main points on appeal, only one of which has merit. For the reason explained below, we reverse and remand for further proceedings.

The mother filed a petition to establish custody, parental responsibility, and child support. The father filed a response and counterpetition. The father is incarcerated but was permitted by court order to appear telephonically at the final hearing on March 22, 2010. The order directed the father to initiate his appearance by calling a designated phone number at a designated time. The final order on appeal states that the father did not appear telephonically at the final hearing although he was provided notice and “all information necessary to effectuate his appearance telephonically.” The father filed two responses to the trial court’s final order, claiming that he had appeared at the prison’s classification department on March 22, 2010, and had awaited instructions by prison officials but was told after an hour to go back to his dorm. The father also filed a motion for rehearing, reiterating that he had attempted to appear at the final hearing but that due to circumstances beyond his control, he was unable to submit exhibits from the prison supporting his claim that he attempted to appear. The trial court denied the father’s motion for rehearing, concluding that “[t]he limitations and/or restrictions imposed on the Father as a result of his incarceration, or the policies of the facility where he is incarcerated, are not matters within the jurisdiction of this Court.”

On appeal, the father claims that his right to due process was denied because he was ready to appear telephonically at the hearing on March 22, 2010, but after waiting for an hour, he was told by prison officials to return to his dorm. He claims that he later learned that the prison officials called in for the hearing but were told that the judge was running ahead of schedule and had already conducted the hearing without him.

An incarcerated party has a right to be heard in civil matters if the party has brought to the court’s attention his or her desire to appear personally or telephoni-cally. Johnson v. Johnson, 992 So.2d 399, 401 (Fla. 1st DCA 2008) (citing Waugh v. Waugh, 679 So.2d 1 (Fla. 2d DCA 1996)). Here, the trial court gave the father the opportunity to appear telephonically, but the father failed to do so. The issue before this court is whether the trial court erred in summarily denying the father’s motion for rehearing once the father notified the trial court in his motion for rehearing and two other filings that he attempted to appear telephonically from prison but was prevented from doing so.

In M.G.C. v. M.C., 899 So.2d 486, 487 (Fla. 2d DCA 2005), the father appealed a summary judgment order terminating the father’s parental rights, which order “default[ed] the [fjather for failing to appear telephonically.” This court held that the trial court erred in denying the father’s motion for rehearing because “[t]he [fja-ther presented evidence to the trial court on rehearing showing that he was denied the opportunity to use the telephone at the designated time by prison officials.” Id. at 487-88.

As explained above, the law provided the father in this case with the due process right to be heard. See Johnson, 992 So.2d at 401. In his motion for rehearing and responses to the final order, the father argued that he attempted to appear at the final hearing and that exhibits would show that he attempted to appear. Therefore, the trial court should have provided the father with an opportunity to prove on rehearing that he attempted to appear telephonically at the final hearing but that he was denied the opportunity to do so. Accordingly, we reverse and remand for the trial court to reconsider the motion for rehearing and to determine whether the father did in fact make all efforts within his control to appear telephonically at the final hearing. The trial court may hold an evidentiary hearing if necessary.

Reversed and remanded.

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


text:
    Joel REYES-RUEDA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2550.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    Mycki Ratzan, Miami, for Appellant.
   PER CURIAM.

Joel Reyes-Rueda appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Steven SHELBY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1293.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 2011.
   PER CURIAM.

Steven Shelby appeals the order denying his timely postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised five grounds for relief. We reverse and remand for further proceedings on only grounds two and three.

On June 5, 2007, Shelby was found guilty of aggravated child abuse and sentenced to fifteen years’ imprisonment. His charge and conviction resulted from the following events: On April 9, 2006, Shelby became angry with his live-in girlfriend’s nine-year-old son, W.W. According to W.W.’s testimony, Shelby put dry rice in two piles on the floor and made him kneel on the piles while holding a book over his head in each outstretched hand. Shelby then allegedly took off his belt and put it around W.W.’s neck, tightening it until he blacked out. After the alleged incident, W.W. joined Shelby, his mother, his aunt, and his two sisters in the living room to watch a movie. Two days later, while at school, W.W. was called into the office and questioned by a child protection investigator who, upon observing his injuries, contacted law enforcement. After further questioning, law enforcement officers went to Shelby’s home and took him into custody.

In the second ground of his motion, Shelby claimed that his counsel was ineffective for failing to call a number of witnesses who allegedly could have provided testimony that would have corroborated his theory of defense. First, he claimed that Dawn Boire, W.W.’s mother, would have testified that on the day of the incident, she was at home and Shelby did not do anything to her son, a fact that was allegedly supported by her statements to police. However, Boire was actually called by Shelby’s counsel to testify. Athough Boire stated that she did not recall what she said on the day of the incident, the officer involved did testify at trial as to her recorded statement, which was as follows: “I was home on Sunday and Steve didn’t do anything to [W.W.]. I’m his mother and I would not let anything happen to the kids.” Therefore, Shelby’s counsel’s failure to elicit the desired testimony from Boire, to the extent that this was even possible, was cured by the introduction of the evidence by another witness.

However, the failure of defense counsel to elicit testimony from other available witnesses may have been prejudicial to Shelby’s defense. Shelby claimed that Alicia and Ariel, W.W.’s sisters, would have testified that on the day of the alleged incident they were at home watching TV. Their brother did not appear to have been choked or forced to kneel on dry rice, nor did he say anything to them about it. They would have testified that W.W. watched a movie with the family and acted as if everything was normal. Shelby also claimed that Tracy, Boire’s older sister and W.W.’s aunt, would have testified that she was present at the time of the alleged incident and that W.W. and Shelby were interacting in a friendly manner the whole time she was there. She would have further testified that, like her sister, she would not let anything happen to the kids. Ultimately, Shelby claimed that if his counsel had called the above witnesses, it would have corroborated his defense, destroyed the prosecution’s case, impeached W.W.’s testimony, and changed the outcome of the trial. Furthermore, we must accept Shelby’s sworn factual allegations to the extent they are not refuted by the record. See Peede v. State, 748 So.2d 253, 257 (Fla.1999).

As to W.W.’s aunt and sisters, the post-conviction court noted that W.W. himself testified to watching a movie with the family after the incident. As a result, the postconviction court found that all the information and testimony that Shelby wanted to have introduced at trial was in fact presented by other witnesses. However, the postconviction court has overlooked certain important pieces of information. Shelby claimed that W.W.’s aunt and sisters would have testified not only to the fact that W.W. watched a movie with the family after the alleged incident, but that nothing appeared to have occurred to W.W. Testimony as to W.W.’s calm demeanor and lack of apparent injuries immediately following the alleged incident, as well as his friendly attitude towards Shelby throughout the day, all could have been beneficial to Shelby at trial; and none of this information was introduced by other witnesses. As argued by Shelby, this information would have at least helped to corroborate his defense of actual innocence.

In ground three, Shelby made a variety of general claims based upon his counsel’s alleged failure to adequately investigate, prepare, and present a viable defense strategy. However, part of this claim involved the allegation that Shelby’s counsel made no attempt to locate certain witnesses for the defense even though Shelby told him where they could be found and that they were available. In denying this claim, the postconviction court found that Shelby was merely speculating and had failed to show that his counsel had actually failed to investigate the case. In addition, the postconviction court noted that prior to the trial, defense counsel represented to the court that he was prepared for trial and wished to present evidence of lesser offenses. Finally, the postconviction court relied on its reasoning from ground two, finding that all desired testimony had been produced by other witnesses. However, as with ground two, the postconviction court has overlooked some significant facts that were not presented at trial but potentially could have been produced by certain identified and available witnesses.

Because Shelby has raised a facially sufficient claim of ineffective assistance of counsel for failure to call witnesses, we must reverse the postconviction court’s denial of grounds two and three insofar as they pertain to counsel’s failure to locate, prepare, and call the victim’s aunt and sisters to testify. See Bulley v. State, 900 So.2d 596, 597 (Fla. 2d DCA 2004). On remand, the postconviction court is instructed to either attach portions of the record conclusively refuting Shelby’s claim or conduct an evidentiary hearing.

Affirmed in part; reversed in part; and remanded.

WHATLEY, DAVIS, and CRENSHAW, JJ., Concur.


author: LAGOA, J.

text:
    Gary KHUTORSKY, Appellant, v. Yekaterina ILINA, Appellee.
    No. 3D11-798.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 2011.
    Fowler White Burnett and June G. Hoffman, Ft.Lauderdale, for appellant.
    Forrest Sygman, Miami, Janet Ochoa, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

The former husband appeals raising two issues from an order modifying the parties’ final judgment of dissolution of marriage. As to the first issue, we reverse the order modifying the final judgment of dissolution to the extent it orders the former husband to pay for one-half of the private school tuition, expenses, and fees for the parties’ younger child. As to the second issue, we affirm without further discussion.

Gary Khutorsky (“former husband”) and Yekaterina Ilina (“former wife”) were married in 1995 and divorced by final judgment on September 23, 2008. They have two children. The final judgment incorporated the parties’ Mediated Settlement Agreement (“MSA”) dated September 3, 2008.

Paragraph 5 of the MSA stated:

The husband shall be responsible for the payment of tuition, registration, fees and membership costs associated with attendance at [Temple] Beth Am day school/preschool for the 2 minor children for the 08-09 school year, and the 09-10 school year. Thereafter the husband agrees to obtain a residence in the Pine-crest Elementary School district as of June 1, 2010 to enable the children to attend Public School thereafter.

On April 8, 2010, the former husband filed a verified petition for modification of the MSA. The former husband, who at the time of the MSA was employed at a law firm in the Dadeland/Pinecrest area of Miami-Dade County, sought elimination of the requirement that he obtain a residence in the Pinecrest Elementary school district because of his new employment in Bro-ward County.

In response, the former wife filed an amended answer and affirmative defenses in which she admitted that the former husband was not seeking to modify the child support payments. As affirmative defenses, the former wife stated that the changes upon which the former husband relied in support of his petition were not involuntary or unanticipated, that at all times the former husband has had and continues to have the ability to fulfill his bargained for obligations under the MSA but has voluntarily chosen not to do so, and that she would show that the provision of the MSA requiring the former husband to obtain a residence in the Pinecrest Elementary school district was not subject to modification. The former wife did not seek any affirmative relief in the proceeding.

After a hearing in March 2011, at which both the former husband and the former wife testified, the trial court entered the order on appeal, finding that the former husband’s change of employment from the Dadeland/Pinecrest area to Broward was a substantial, material, unanticipated change in circumstances under section 61.13, Florida Statutes, and deleted the provision of the MSA obligating the former husband to obtain a residence in the Pinecrest Elementary school district. Additionally, the trial court found that the former husband had the ability to pay one-half of the cost of the parties’ younger child’s private schooling at Beth Am, and held that “[f]or the 2010-11 school year and thereafter, the Former Husband shall pay one-half of the tuition, fees and books as well as one-half of the Temple fee, for [the younger child] to remain at Beth Am through the 5th grade.”

“[W]hen an award of relief is not sought by the pleadings, it is reversible error to grant such relief.” McDonald v. McDonald, 732 So.2d 505, 506 (Fla. 4th DCA 1999); accord Gelman v. Gelman 24 So.3d 1281 (Fla. 4th DCA 2010) (reversing an award of private school tuition where former wife’s counterpetition did not contain a request for payment of private school tuition); Jackson v. Powell, 546 So.2d 1145, 1146 (Fla. 3d DCA 1989) (“The trial court may not circumvent such required pleadings by ordering a child support modification on its own motion....”); Pace v. Pace, 471 So.2d 680 (Fla. 3d DCA 1985) (stating rule that the trial court may not modify a prior child support award where no pleading has been filed requesting such modification); Sweetland v. Gauntlett, 460 So.2d 570 (Fla. 3d DCA 1984) (same).

Here, the former wife did not plead for an award of private school tuition and expenses for the 2010-11 school year, or seek an award of private school tuition and expenses in the future. Indeed, she sought no affirmative relief in the modification proceeding, and her counsel acknowledged that the former husband does not have the ability to pay for private school. Further, based upon our review of the record, we cannot conclude that the issue was tried by consent. Given this, the trial court erred in modifying the final judgment to provide that the former husband pay for one-half of the tuition, fees, books, and Temple fee for the Beth Am 2010-11 school year, and thereafter.

Accordingly, we reverse the order on appeal to the extent it orders that for the 2010-11 school year and thereafter, the former husband shall pay one-half of the tuition, fees and books, as well as one-half of the Temple fee, for the younger child to remain at Beth Am through the fifth grade. On remand, the former husband shall receive a credit for any payments he made pursuant to the order on appeal.

Affirmed in part, reversed in part, and remanded.

      . In fact, at the time of the hearing, the parties were operating under their own understanding for the 2010-11 school year, pursuant to which the former husband paid the Temple fee and the former wife paid the tuition.


author: VILLANTI, Judge.

text:
    Ruben ADORNO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3021.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 2011.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Ruben Adorno, Jr., seeks review of the sentence imposed after the revocation of his probation. The narrow substantive issue framed by the parties’ briefs is whether the evidence presented at the sentencing hearing was sufficient to support an upward departure sentence based on the statutory aggravator that “[t]he victim was especially vulnerable due to age or physical or mental disability.” See § 921.0016(8)0'), Fla. Stat. (1995). Because the State failed to offer legally sufficient evidence to support this ground for departure, we reverse Adorno’s sentence and remand for resentencing within the guidelines.

Adorno pleaded guilty in 1996 to one count of attempted sexual battery on a child under the age of twelve based on events that occurred between October 10, 1994, and October 31, 1995. He was originally sentenced to 162 months in prison followed by ten years’ probation. At the time of Adorno’s sentencing, the recommended sentence under the guidelines was 129.4 months, and the permitted sentencing range was 97 months to 162 months. Under the sentencing statutes in effect at the time, any sentence greater than the top of the permitted guidelines range was considered an upward departure sentence. See § 921.0016(l)(c), Fla. Stat. (1995).

Adorno was released to probation in late 2004. On November 21, 2009, he was arrested for shoplifting, which prompted the Department of Corrections to file an affidavit of violation of probation based on this alleged new law violation. Adorno subsequently admitted the violation. Concerning his sentence, Adorno argued that since he had already served 160 months — almost the entire maximum sentence under the applicable guidelines — his probation should simply be terminated.

In response, the State requested an upward departure sentence of twenty-five years in prison with no credit for time served. The prosecutor argued that an upward departure sentence was warranted under section 921.0016(3)(j), which allows for an upward departure sentence when the victim is “especially vulnerable due to age or physical or mental disability.” In support of its request, the prosecutor represented to the court that “[t]he victim at the time was eight years old.” However, other than this bare assertion concerning the victim’s age, the State offered no evidence of any particular vulnerability on the part of the victim. Nevertheless, based on the prosecutor’s representation, the trial court sentenced Adorno to an upward departure sentence of 240 months in prison with credit for the 160 months he had already served.

In this appeal, Adorno contends that his upward departure sentence is improper because it is based on grounds not supported by evidence admitted at the sentencing hearing. On these facts, we must agree. This court recently addressed this identical issue in Powanda v. State, 8 So.3d 1230 (Fla. 2d DCA 2009). There, Powanda was convicted of sexual conduct with a child older than twelve but less than eighteen. Id. at 1231. He was sentenced to ten years in prison followed by seven years’ probation. Id. Powanda subsequently admitted to violating his probation, and the State sought an upward departure sentence based in part on the alleged vulnerability of the victim due to age. Id. The trial court imposed the requested sentence, but this court reversed.

In doing so, we noted that “ ‘[t]he level of proof necessary to establish facts that support a departure from the sentencing guidelines is a preponderance of the evidence.’ ” Id. at 1232 (quoting § 921.001(4)(a)(6), Fla. Stat. (2007)). However, the record showed that neither the State nor Powanda had presented “any evidence about the victim’s vulnerability” at either the violation of probation hearing or the original plea hearing. Id. (emphasis added). Therefore, since no evidence was presented to establish that the victim was “especially vulnerable,” the upward departure sentence premised on that statutory aggravator was improper. Id.

Even more recently, in Morrison v. State, 59 So.3d 308 (Fla. 2d DCA 2011), this court again reversed an upward departure sentence premised on the alleged vulnerability of the victim due to age. In that case, Morrison was convicted of lewd and lascivious conduct on a child under sixteen. Id. at 310. Morrison’s probation was subsequently revoked, and the State sought an upward departure sentence on the basis of the victim’s alleged vulnerability. Id. While the trial court imposed the upward departure sentence, this court reversed. Id. In doing so, we noted that “the vulnerability of the victim may not be implied solely based on the State’s decision to charge the defendant with a crime wherein the victim’s age is an element of the crime. Rather, there must be independent proof.” Id. at 311. This analysis recognizes that since age, in and of itself, has already been factored into the presumptive sentence for these offenses and since a departure sentence cannot be based on factors already accounted for by the guidelines, see Hendrix v. State, 475 So.2d 1218, 1220 (Fla.1985), the State must prove some particular vulnerability arising out of the victim’s age — not just age itself.

Here, as in Powanda and Morrison, the State offered no evidence that Adorno’s victim was “especially vulnerable due to age.” Nor does the State contend that it established the victim’s particular vulnerability at any prior hearing. Instead, the State’s sole proffered support for an upward departure under this aggravator was the prosecutor’s unsupported assertion that “[t]he victim at the time was eight years old.” Even assuming that this representation by the prosecutor could be considered evidence, that “evidence” is insufficient to prove that the victim was “especially vulnerable” because vulnerability cannot be implied solely based on age. Instead, as we stated in Morrison, the State was required to offer proof of vulnerability independent of age, which it failed to do. Therefore, based upon controlling case law, the upward departure sentence imposed on Adorno cannot stand, and we remand this case to the trial court with directions to resentence him within the guidelines. See Shull v. Dugger, 515 So.2d 748, 749 (Fla.1987) (noting that “when all of the reasons stated by the trial court in support of departure are found invalid, resentencing following remand must be within the presumptive guidelines sentence”).

Reversed and remanded for resentenc-ing.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . In the trial court, the State advanced two other grounds that it asserted would support an upward departure sentence — -an escalating pattern of criminal conduct pursuant to section 921.0016(3)(p) and a substantial risk of great bodily harm to one or more small children pursuant to section 921.0016(3)(i). In this appeal, the State has conceded that it failed to sufficiently prove these other two grounds for departure. Therefore, we need not address these grounds except to note that we agree with the State’s concession.

      . Adorno preserved this issue for review by filing a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Morrison v. State, 59 So.3d 308, 310 (Fla. 2d DCA 2011) (noting that the defendant preserved the issue of an improper upward departure sentence by filing a rule 3.800(b)(2) motion); Powanda v. State, 8 So.3d 1230, 1231-32 (Fla. 2d DCA 2009) (same); see also Jackson v. State, 983 So.2d 562, 572 (Fla.2008) (specifically stating that the improper imposition of a departure sentence is a "sentencing error” that can be addressed under rule 3.800(b)(2)). This is true even though a defendant may have had an opportunity to object during the sentencing hearing. Jackson, 983 So.2d at 574 (noting that rule 3.800(b)(2) "is not limited to errors ... to which the defendant had no opportunity to object”).

      . We note that unsworn representations of counsel do not constitute evidence. See, e.g., Neal v. State, 697 So.2d 903, 905 (Fla. 2d DCA 1997).


author: SILBERMAN, Chief Judge.

text:
    Michael REINLEIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2705.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 2011.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Chief Judge.

Michael Reinlein appeals his judgment and sentence for tampering with physical evidence. He contends that the trial court erred by allowing into evidence testimony regarding his admissions as to criminal conduct before the State established the corpus delicti and that the trial court erred in denying his motion for judgment of acquittal. We agree and reverse.

On September 20, 2009, Officer Shone was conducting surveillance for narcotics and prostitution in the area of Dartmouth Avenue and 35th Street North in St. Pe-tersburg. Between 8:00 and 9:00 p.m., Officer Shone observed two males pacing in an alley and occasionally talking on cell phones. A white Ford Ranger drove by and around the block. The truck then pulled to the side where one of the men was waving. The man approached the truck and pointed westbound. The truck moved in that direction and then stopped. The man then looked up and down the street before approaching the truck. He made contact through the driver’s side window. After about ten seconds, the truck drove away.

Based on his experience, Officer Shone believed a narcotics transaction had occurred, but he admitted that he had not seen any hand-to-hand exchange of cash, narcotics, or anything else. He radioed other officers and related his observations and belief that a narcotics transaction had occurred. He requested surveillance on the truck so that an officer would follow the track until it could be stopped for a traffic infraction. If no traffic infraction occurred, an officer would normally wait until the vehicle reached its destination and then initiate a citizen encounter.

Reinlein stipulated that Officer Cameron stopped his truck for a traffic infraction. Officer Cameron testified the stop was made several blocks away from where Officer Shone was located. Reinlein was the only occupant in the truck. After Officer Cameron activated his overhead lights and siren, the truck made a left turn. The officer used his spotlight to illuminate the cab of the truck and he saw “the driver with his right hand make a throwing motion as he was popping something into his mouth.” He later clarified that the object “presumably” went into Reinlein’s mouth. Officer Cameron admitted that he could not see what Reinlein put into his mouth. Reinlein stopped after he made the left turn and pulled directly into a convenience store lot. He got out of the truck, and Officer Cameron placed him in custody and read him his Miranda rights.

At this point the defense objected to allowing Reinlein’s admission into evidence because the State failed to establish the corpus delicti of the offense. The State responded that it showed “a prima facie instance that a crime occurred” and the fact that they never found the contraband showed that Reinlein impaired the investigation in some capacity. The prosecutor also asserted, “We don’t even know what that object was that he swallowed, but that’s the whole point of the charge, is that we don’t know and we can’t know because he ate the object.” The defense pointed out that the State was essentially alleging that the thing was crack cocaine but it could have been a mint or a Tic Tac. The trial court stated that it believed there was at least circumstantial evidence to suggest all three elements of the offense and thus allowed the following testimony about Re-inlein’s admissions.

Officer Cameron testified that after being advised of his Miranda rights Reinlein agreed to speak with the officer. Reinlein stated that he drove to the area where he was spotted in order to buy crack cocaine. He bought $10 worth of crack cocaine from the man who approached him in the alley. The transaction was conducted through the driver’s side window. When he got pulled over, Reinlein placed his hand to his mouth and ingested the piece of crack cocaine that he had purchased. When Officer Cameron approached Reinlein, his mouth was moving, but the officer could not tell whether it was a chewing motion.

After the State rested its case, Reinlein moved for a judgment of acquittal which the trial court denied. Reinlein did not testify. The jury found him guilty as charged of tampering with physical evidence.

On appeal, Reinlein argues that the trial court erred in allowing the testimony concerning his admissions without sufficient proof of a corpus delicti. The State must establish an independent corpus delicti in order to offer an admission against interest into evidence. J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998). The term “corpus delicti” is used to refer to “ ‘the legal elements necessary to show that a crime was committed.’ ” State v. Colorado, 890 So.2d 468, 470 (Fla. 2d DCA 2004) (quoting State v. Allen, 335 So.2d 823, 824 n. 2 (Fla.1976)). The State must prove those elements by substantial evidence and may use circumstantial evidence to do so. See Burks v. State, 613 So.2d 441, 443 (Fla.1993) (quoting Allen, 335 So.2d at 824). “‘This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.’ ” Id. (quoting Allen, 335 So.2d at 825). Thus, to authorize the introduction of Reinlein’s admissions, the State had to establish with substantial evidence each element of the crime of tampering with physical evidence.

Reinlein was charged with violating section 918.13(l)(a), Florida Statutes (2009), which provides as follows:

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation[.]

We have found no cases that specifically deal with corpus delicti in the context of section 918.13. However, courts have addressed the elements of the offense in the context of a motion to dismiss or the sufficiency of evidence. To establish a violation of the statute, “the State must prove a defendant ‘had knowledge of an impending investigation and destroyed evidence in order to impair its availability for the investigation.’ ” State v. Major, 30 So.3d 608, 609 (Fla. 4th DCA 2010) (quoting C.K. v. State, 753 So.2d 617, 618 (Fla. 4th DCA 2000)). The supreme court has determined that “swallowing an object clearly constitutes altering, destroying, concealing, or removing a ‘thing’ within the meaning of section 918.13.” State v. Jennings, 666 So.2d 131, 133 (Fla.1995).

In Jennings, a law enforcement officer saw Jennings holding what appeared to be rock cocaine. Id. at 133. The officer shouted “police” and Jennings then swallowed the alleged cocaine. Id. The officer’s observations were the only evidence that the objects Jennings swallowed were cocaine rocks, but the statute did not require that the objects be contraband. Id. at 133 n. 3. Rather, Jennings could be found guilty under section 918.13 if a jury found “that Jennings knew an investigation was about to begin and destroyed objects which he knew were the focus of the impending investigation.” Id. The supreme court determined' that the trial court should not have granted Jennings’ motion to dismiss the charge. Id. at 134.

Here, the State failed to establish with substantial evidence; apart from Reinleiris admissions, the elements of tampering with physical evidence. Even if the State’s evidence can be viewed as showing that Reinlein knew of an impending investigation when Officer Cameron activated his overhead lights and siren to stop Rein-leiris truck, the State did not present substantial evidence, independent of Reinleiris admissions, that Reinlein destroyed a thing in order to impair its availability for investigation. Notably, Reinlein was stopped for a traffic infraction away from the location where he was observed by Officer Shone. And the State did not present independent proof that Reinlein had knowledge that what he put into his mouth was the focus of an investigation. While Officer Shone believed that Reinlein, as the driver of the white truck, had engaged in a narcotics transaction with the man in the alley, the officer admitted that he saw no hand-to-hand transaction, drugs, or money. Officer Cameron testified that after he activated his lights and siren, he saw Reinlein pop an object in his mouth. But he did not know the color or size of the object and could not identify it. No residue or paraphernalia were found in a search of Reinleiris person or vehicle.

Under the circumstances, the State could not prove that Reinlein destroyed a thing in order to impair its availability for investigation without Reinleiris admission that what he swallowed was cocaine. Without that admission, the State had no evidence that Reinlein ingested something that he knew was the focus of any investigation. As defense counsel argued at trial, if Reinlein popped a mint or Tic Tac in his mouth, he would not have been impairing an investigation. In the context of this case, some further evidence was necessary to show that Reinlein knew that what he had put into his mouth was the focus of an investigation in order to establish the corpus delicti. Under the facts presented, the State’s evidence is simply not strong enough to show that Reinlein destroyed a thing in order to impair its availability for investigation. Therefore, the trial court should not have allowed Reinleiris admissions into evidence.

Without Reinleiris admissions, the State failed to present evidence of tampering with physical evidence to withstand the defense motion for judgment of acquittal. Therefore, we reverse Reinleiris judgment and sentence for tampering with physical evidence and remand for discharge on this offense. See Esler v. State, 915 So.2d 637, 640 (Fla. 2d DCA 2005) (reversing and remanding for discharge as to DUI with serious bodily injury based on the State’s failure to prove the corpus delicti before the admission of a confession into evidence).

Reversed and remanded.

NORTHCUTT and LaROSE, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In light of our disposition of this case, we do not address an issue Reinlein raised in his supplemental brief regarding the constitutionality of section 893.13, Florida Statutes (2009).


author: SWANSON, J.

text:
    William DICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-313.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.
    Nancy A. Daniels, Public Defender, and Barbara Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

William Dicks, Jr., appeals his judgment of conviction and sentence for burglary of a dwelling, asserting fundamental error occurred when, during closing arguments, the prosecutor misstated the law of burglary. We disagree and affirm.

On the morning of April 1, 2010, Boh-man Kirby was driving past rural land he owned in Columbia County when he noticed fresh tire tracks leading onto the property. Kirby testified he drove past the property on nearly a daily basis and had “walked” the ■ property just two or three days earlier. Located on the property was a vacant, mobile home that had been used as a residence by him and his family and, later, as rental property. On this particular morning, when he also observed the meter box had been pulled from its pole, Kirby stopped to investigate and saw that some cinder blocks used to surround a fire pit had been moved to allow a vehicle to back up to the mobile home. As he walked around the home, he also discovered that wires leading to the meter and the air conditioning unit had been cut and the back door had been pried open. Kirby looked inside a nearby utility shed and realized furniture he had been storing there was missing. The yard surrounding Kirby’s mobile home was not enclosed by a fence.

Kirby called the Columbia County Sheriffs Office. When Deputy Jonathan Rhodes arrived at around 8:45 a.m., he, too, observed the tire tracks, the cut wires, and the pry marks on the back door. In addition, he saw a hole in the skirting running around the base of the mobile home. He took photographs, collected a cigarette lighter he found on the ground, and then left. However, when he returned in the afternoon, he saw a bag of tools, a “Sawzall” and some copper wiring on the ground, none of which had been there that morning. In addition, he noticed an “egg crate” foam mattress lying on the ground — which Kirby later identified as having come from the utility shed — and discovered that the hole in the skirting appeared to have been enlarged. Using a flashlight, Deputy Rhodes looked into the hole and saw a man, later identified as Dicks, wearing work gloves and trying to hide behind the mobile home’s cement support blocks. Dicks’ brother was also under the home and wearing work gloves. Deputy Rhodes removed the men from underneath the mobile home and learned that while Dicks resided in another town, his brother lived about three miles away. When Rhodes arrested them, both men had cigarettes in their possession, but only Dicks’ brother had a lighter. Kirby, who was called back out to the property, confirmed that the wiring stacked up outside in the yard had not been there in the morning but had been cut recently and pulled out from underneath the trailer. Kirby later testified that so much wire had been removed, the mobile home was no longer capable of receiving power and all of the utilities required rewiring.

Dicks was charged by amended information with burglary of a dwelling by unlawfully entering a dwelling with the intent to commit theft, proscribed by section 810.02, Florida Statutes (2009). Section 810.011(2) defines the term “dwelling” to mean “a building or conveyance of any kind, including any attached porch ..., which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” In his opening statement, defense counsel conceded that while Dicks was guilty of trespass, and even of stealing, he was not guilty of burglary.

During closing arguments, the prosecutor advised the jury that the trial court would read them instructions concerning the offense of burglary of a dwelling, but he intended “to talk” about those instructions and recited the basic elements of the offense. However, at the point of defining a “dwelling,” the prosecutor “paraphrased” the statutory definition provided in section 810.011(2) by describing a dwelling as “a building with a roof designed to be occupied by persons[,] together with the yard and thé outbuildings immediately surrounding it.” Moreover, when addressing whether Dicks had “entered” the dwelling, the prosecutor described the “backyard” as part of the dwelling, and argued that by Dicks’ having “merely” entered the backyard of the mobile home, he had entered into the dwelling. The prosecutor went on to summarize his point as follows: “A person in the backyard with the intent to commit a theft, it doesn’t matter if they’re in the backyard or if they’re in the back bedroom. They are tres-passing and they are intending to steal. That is burglary.” No objection was forthcoming from the defense. Instead, in his closing argument, defense counsel strenuously expressed his disagreement with the state’s paraphrased definition of a dwelling, carefully explaining to the jury that under Florida law the yard must be “enclosed” in order to constitute a part of the dwelling. He also reminded the jury that the definition of a dwelling would be read to them by the trial court and would describe the dwelling as including only the “enclosed space of ground and outbuildings immediately surrounding it.” Nevertheless, in rebuttal, the prosecutor persisted in urging that the yard was a part of the dwelling despite its lack of fencing, stating: “[Dicks] most certainly entered that dwelling. He entered it by being in the backyard. He entered it by being underneath it.” Again, defense counsel failed to raise an objection to the prosecutor’s remarks.

At the close of the arguments, the trial court read the approved standard jury instructions concerning burglary of a dwelling. They included the following instruction regarding a dwelling:

Dwelling means a building of any kind, whether such a building is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it. For purposes of burglary, a dwelling includes an attached porch or attached, garage.

See Fla. Std. Jury Instr. (Crim.) 13.1 (emphasis added). Additionally, at the outset of the trial, as well as just before closing arguments, the jury was instructed that what the lawyers would say was not evidence and was not to be considered as such. At the conclusion of the trial, the jury returned a verdict of guilty as charged.

There is no dispute that the prosecutor’s definition of a dwelling designed to include a trespass on unenclosed property surrounding the dwelling expressed an erroneous interpretation of the law. Although section 810.011(1) & (2) defines both a structure and a dwelling to include “the curtilage thereof,” it omits a definition of the term “curtilage.” However, the Florida Supreme Court has ruled that the term “curtilage,” as contemplated by the legislature in the burglary statute, “carries] forward the common law requirement of some form of enclosure in order for the area surrounding a residence to be considered part of the ‘curtilage’ as referred to in the burglary statute.” State v. Hamilton, 660 So.2d 1038, 1044 (Fla.1995). In doing so, the supreme court confirmed the integrity of Florida’s existing standard jury instruction on burglary. Id. at 1045-46.

Notwithstanding the prosecutor’s error, Dicks concedes his failure to object precludes appellate review of this issue unless he can demonstrate the prosecutor’s remarks constitute fundamental error. See McDonald v. State, 743 So.2d 501, 505 (Fla.1999) (holding the law is clear that a party’s failure to object to improper prose-cutorial comments will preclude appellate review, unless the comments are so prejudicial as to constitute fundamental error); Chandler v. State, 702 So.2d 186, 191 (Fla.1997) (same). In that regard, to justify not imposing the contemporaneous objection rule, the error must “ ‘reach[ ] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Serrano v. State, 64 So.3d 93, 111 (Fla.2011) (quoting Archer v. State, 934 So.2d 1187, 1205 (Fla.2006)). See also Kilgore v. State, 688 So.2d 895, 898 (Fla.1996). Dicks argues that the prosecutor’s repeated misstatements of the law was error so fundamental he was denied a fair trial because the misstatements removed crucial factual determinations from the jury. Dicks reasons that for the jury to have found him guilty of burglary of a dwelling, it was necessary for it to find he physically entered the dwelling itself because, as the yard was not enclosed, it could not legally be included in the dwelling’s curtilage and, thus, was not a part of the dwelling. In this respect, Dicks asserts the prosecutor’s misstatements of the law enabled the jury to find him guilty without resolving the factual disputes over whether and how he could have entered the dwelling. Dicks also argues the trial court’s subsequent reading of the appropriate jury instruction did not cure the fundamental nature of the error.

Dicks’ argument might be persuasive were the facts such that he was discovered outside in the unenclosed yard. See, e.g., J.L. v. State, 57 So.3d 924, 926 (Fla. 5th DCA 2011) (reversing a burglary conviction and directing entry of judgment for trespass, where the evidence showed the defendant took items leaning against a house in a yard that was not completely enclosed). However, that is not what the evidence established here. Rather, as also argued by the prosecutor during closing, the state’s evidence placed Dicks underneath the mobile home removing the home’s copper wiring. Thus, as framed by the evidence, the parties’ closing arguments, and the appropriate instructions read by the trial court, the only question before the jury relating to the dwelling was whether Dicks’ presence underneath the mobile home amounted to his “entering or remaining in a dwelling” within the meaning of the burglary statute. The jury found that it did, and Dicks did not assert below, nor does so now, a convincing argument that such a finding is contrary to the law. See, e.g., Tindall v. State, 997 So.2d 1260, 1261 (Fla. 5th DCA 2009) (affirming the defendant’s conviction for burglary of a structure and holding that by his presence in the crawl space underneath a vacant house, where he was removing copper pipe, the defendant had “penetrated the invisible, vertical plane into the airspace of the house by crawling under the house to gain access to the pipes and thus ‘entered’ the house”); Barton v. State, 797 So.2d 1276, 1278 (Fla. 4th DCA 2001) (holding the defendant committed burglary of a conveyance when he “crossed and entered an invisible plane by reaching in over the top of the side rails of the bed” of a pickup truck and removed a bicycle).

On this record, therefore, we conclude the prosecutor’s comments did not rise to the level of fundamental error. That is because they did not “ ‘reach[ ] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Serrano, 64 So.3d at 111. Accordingly, the judgment of conviction and sentence for burglary of a dwelling is hereby AFFIRMED.

PADOVANO and HAWKES, JJ., concur.


text:
    Jason F. SPARKS, Husband, Appellant, v. Jennifer SPARKS, Wife, Appellee.
    No. 1D11-3327.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.
    Mark J. Fraser, Gainesville, for Appellant.
    Joshua M. Silverman, Gainesville, for Appellee.
   PER CURIAM.

Jason F. Sparks appeals an order, entered in a dissolution proceeding, which awards custody of a minor child pursuant to a marital settlement agreement. Because the trial court would not permit appellant Sparks, the father, to present evidence as to whether an award of custody pursuant to the agreement was in the best interests of the child, we reverse and remand for further proceedings.

After a brief marriage, Jason Sparks and Jennifer Sparks, appellee, decided to separate and, in furtherance of this decision, executed a marital settlement agreement without the assistance of counsel. By this agreement, the parties agreed upon joint custody of their minor child and set forth a schedule of rotating physical custody.

The father, still proceeding without counsel, petitioned for dissolution of marriage. By this petition, he sought sole custody of the minor child; he made no mention of the marital settlement agreement. In her answer and counter-petition, the mother alleged that custody and visitation should be awarded pursuant to the agreement. She then moved for a partial summary judgment on the issue of custody, citing the agreement as the ground for such a judgment.

The trial court denied the motion for partial summary judgment and reserved “the right to evaluate a previously executed marital settlement agreement to determine if said agreement is in the best interests of the minor child, which is to be determined after an evidentiary hearing.” At the subsequent hearing, however, the trial court announced, over the objection of the father, that it was limiting its inquiry to the issues of whether the settlement agreement was a product of fraud or duress and whether the custody and visitation provisions of the agreement were facially unreasonable. Because the father had not formally moved to set aside the marital settlement agreement, the father would be bound by that agreement absent a finding of fraud, duress or unreasonableness. Finding none of these things, the trial court incorporated the marital settlement agreement in its amended final judgment. It also adopted the parenting plan submitted by the mother, a plan which, contrary to the agreement, did not allow for liberal rotation of physical custody.

As indicated, the trial court erred in not considering whether the agreement is in the best interests of the child. Section 61.13(2)(c), Florida Statutes (2010), unequivocally provides that a trial court is required in a proceeding initiated under that chapter to “determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act.” There is no stated exception to this requirement.

“It is undisputed, and should be indisputable, that a trial court’s responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents, nor by the opinions of any experts or group of experts.” Lane v. Lane, 599 So.2d 218, 219 (Fla. 4th DCA 1992); see Feliciano v. Feliciano, 674 So.2d 937 (Fla. 4th DCA 1996) (confirming that a trial court is not bound by an agreement regarding child support, custody, and visitation where it determines that it is not in the best interests of the children). As noted by the reviewing court in Jones v. Jones, 674 So.2d 770, 774 (Fla. 5th DCA 1996), the “best interests of the children are to govern the custody decision, regardless of any stipulation between the parties.”

By his dissolution petition and his affidavit in opposition to partial summary judgment, the father clearly advised the trial court that he sought a custody award without regard to the previous settlement agreement. Further, in his affidavit the father asserted that shared custody of the child with the mother was certainly not in the best interest of the child given certain averments. Because section 61.13(2)(c) requires a trial court to determine all parenting issues in accordance with the best interests of child, and because the father asserted below that the child custody and visitation provisions of the settlement agreement are not in the best interests of the child, the trial court erred in denying an evidentiary hearing on the issues of custody and visitation. See Jones v. Jones, 674 So.2d at 774 (holding that when a parent asserts that an agreement is not in the best interests of a child, the trial court must hold an evidentiary hearing). Accordingly, we REVERSE and REMAND for proceedings consistent with this opinion.

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


author: PER CURIAM. WOLF, J.,

text:
    Courtland Labrian HINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6186.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

HAWKES and ROBERTS, JJ„ concur; WOLF, J., concurs with opinion.

WOLF, J.,

Concurring.

In the instant case, before releasing the jury for deliberations, the trial court stated:

Ladies and gentlemen, we’re going to go ahead in a moment and let y’all go back and start deliberating. You will get the exhibits, you will get a verdict form, and you will take your jury instructions with you.
Now, I think sometimes jurors have questions for me, but the first thing that you should do if you think you have a question is stop and reread those jury instructions, because I really am giving you everything that you need to know to make your decision.

(Emphasis added). This preemptive instruction, especially the underlined language, is problematic. It may have a chilling effect on the exercise of the jury’s power to request clarification, further instructions, or a review of testimony. This language, however, does not rise to the level of fundamental error; therefore, I concur.


text:
    Brian T. SALLE and Karen M. Salle, Appellants, v. INNOVATIVE CAPITAL CLUB AT CEDAR KEY, LLC, and Cedar Key Holdings, Inc., a Florida corporation, Global Marina, LLC, a Florida Limited Liability Company, Jerome D. Mitchell, Esquire and Jerome D. Mitchell, P.A., et al., Appellees.
    No. 1D11-4068.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.
    Jose D. Sosa, for Appellants.
    Martin A. Pedata, Ft. Lauderdale; James K. Pedley, Deland, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s responses to the Court’s orders of August 23, 2011, and October 17, 2011, the Court has determined that the Order Denying Cross-Plaintiffs Brian T. Salle and Karen M. Salle’s Cross-Claims as to Damages, is not a final order because it' fails to conclude the judicial labor with respect to the appellants’ cross-claims. Accordingly, the appeal is dismissed as premature. The Court declines to stay the appeal as requested by the appellants in their response to the October 17, 2011, order. See Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009).

WOLF, HAWKES, and ROBERTS, JJ., concur.


text:
    Robert William MATRONI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5722.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.
    James Owens, Public Defender, and Nicholas M. Thomas, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition seeks belated appeal of a judgment and sentence rendered on August 18, 2011. We deny the petition.

Florida Rule of Appellate Procedure 9.140(b)(3) requires the notice of appeal to be filed within 30 days following rendition of the judgment and sentence. The petition alleges that in a letter dated October 18, 2011, the defendant requested that counsel file a notice of appeal. In a post-conviction request for belated appeal, the defendant is required to allege that a timely request was made of counsel to file a notice of appeal. State v. Trowell, 739 So.2d 77, 81 (Fla.1999). This petition fails to allege that a request for appeal was made within 30 days following rendition of the judgment and sentence. Accordingly, the petition for belated appeal is denied on the merits.

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


text:
    Brian Keith TRUETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6008.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.
    Matt Shirk, Public Defender, and J. Mark Wright, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the amended order of probation rendered on or about July 25, 2011, in Clay County Circuit Court Case No. 2011-CF-000152, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. The court notes that the lower tribunal has appointed the public defender to represent petitioner in the belated appeal authorized by this opinion.

WOLF, HAWKES, and ROBERTS, JJ., concur.


text:
    Randolph C. CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6090.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.
    Elizabeth Yerrington, Assistant Regional Counsel, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the corrected judgment and sentence rendered on or about June 24, 2011, in Duval County Circuit Court Case No. 16-2009-CF-001202-AXXX, is granted. Upon issuance of mandate a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. The court notes that the lower tribunal has appointed the Office of Criminal Conflict and Civil Regional Counsel to represent petitioner in the belated appeal authorized by this opinion.

WOLF, HAWKES, and ROBERTS, JJ., concur.