text:
    Freddie L. HALIBURTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-417.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.
    Rehearing Denied May 20, 2009.

      See also 919 So.2d 457 and 939 So.2d 110.
    Freddie L. Haliburton, Century, pro se.
    No appearance required for appellee.
   PER CURIAM.

Freddie Lee Haliburton appeals the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) and 3.850 motions. The motions raised variants of the same claim, and the trial court denied them in a single order ruling that the claim was impermissibly successive. We affirm. The claim is barred by the law of the case and collateral estoppel doctrines and no manifest injustice results. See State v. McBride, 848 So.2d 287, 291-92 (Fla.2003).

The issue Haliburton raises was preserved and argued on direct appeal and was rejected on the merits. Haliburton v. State, 861 So.2d 1165 (Fla. 4th DCA 2003). Haliburton then raised this same claim in a Rule 3.800(a) motion to correct illegal sentence which was denied on the merits and affirmed. Haliburton v. State, 919 So.2d 457 (Fla. 4th DCA 2006). He raised the same and similar variants of the same claim again in a motion for postconviction relief. That motion was also denied and affirmed on the merits. Haliburton v. State, 939 So.2d 110 (Fla. 4th DCA 2006). The instant motions again raised variants of the same issue that has been repeatedly denied and rejected on appeal.

The Offense

Authorities received a 911 call which reported that a man was outside beating a woman with a gun and threatening to kill her. Police arrived and observed Halibur-ton in the street standing over the victim. He was covered in blood and holding a chrome handgun. Haliburton fled but was apprehended after a short foot chase. Police recovered the chrome handgun which they saw Haliburton throw into the bushes as he was fleeing.

Haliburton was the victim’s ex-boyfriend and, in the presence of several witnesses, abducted her from the front yard of the home of her current boyfriend’s aunt. He placed her in a headlock and then forced her into his van. The victim yelled, “It’s Freddie, call the police!” The victim’s boyfriend attempted to stop Haliburton but was unable to do so. According to the victim’s statements to police, once inside the van, Haliburton held her at gun point with a handgun he retrieved from inside the van. Haliburton struck the victim with the gun several times as he drove her to his residence and told her that he was going to kill her and commit suicide. He attempted to force her inside his home and began beating her with the handgun and pointed it at her, threatening to shoot her, after she resisted. Police arrived while Haliburton was still beating the victim.

After Haliburton was arrested, he made several incriminating statements while at the police station such as: “I told her to quit fucking with me”; “I should have shot her;” and “in six months, eight months, whenever this comes to trial, the only thing I’ll be facing is the firearm charge because the rest of this is going away.” Staples were required to close the 4-inch long laceration to the victim’s head. Photographs of the victim’s injuries were introduced at trial.

The Claim

Haliburton was convicted after a jury trial in 2002 of several offenses related to this incident, but the instant claim relates solely to his aggravated battery conviction. The information in this case charged Hali-burton with aggravated battery based on alternative theories that Haliburton used a deadly weapon (i.e. the firearm) or that he intentionally caused great bodily harm to the victim. § 784.045(l)(a), Fla. Stat. (2001). At trial, the judge instructed the jury, over defense objection, that aggravated battery based on the great bodily harm theory was a lesser-included offense of aggravated battery with a firearm. The judge agreed with the State that the applicability of the 10-20-LIFE statute made the aggravated battery with a firearm offense a “greater” offense because the jury’s finding that Haliburton possessed a firearm would call for a ten-year mandatory minimum penalty. § 775.087(2), Fla. Stat. (2001).

On direct appeal, Haliburton argued that the trial court erred in instructing the jury in the above-described manner over his objection. He argued that, because the offenses were the same degree and carried the same maximum penalty, the jury may have been misled into believing it was convicting of a crime with a lesser penalty. We affirmed. Haliburton then raised similar claims in his initial Rule 3.800(a) and Rule 3.850 motions.

In the instant successive motions, Haliburton notes that, as a prison releasee reoffender (PRR), a conviction for a second degree felony was subject to a 15-year mandatory minimum sentence. See § 775.082(9)(a)3c, Fla. Stat. (2001). Haliburton argues that because aggravated battery carries the same 15-year PRR mandatory minimum penalty, regardless of whether a firearm is used or not, the judge did not have discretion to impose a lesser punishment. He contends that he was deprived a fair opportunity to have the jury exercise its “pardon power” and that the jury may have been misled into believing that it was convicting Haliburton of an offense that carried a lesser penalty when in fact the lesser offense called for the same punishment.

Subsequent Refinements in Law

At the time we affirmed on direct appeal, and affirmed the denial of his prior motions, the Florida Supreme Court had yet to decide Sanders v. State, 944 So.2d 203 (Fla.2006). In that case, the Florida Supreme Court recognized that a lesser-included offense need not “be lesser both in degree and in penalty” in order to be listed as a lesser offense. Id. at 207. Nevertheless, the Court clarified that lesser offenses should be determined based “primarily and ultimately upon the applicable statutory provisions for the charged crime” and in descending order based on the degree of the offense without regard to reclassification or enhancement statutes. Id. Any facts that need to be determined by a jury for an enhancement or reclassification to apply should be alleged in a separate interrogatory on the verdict form. Id.

In this case, the trial court attempted to account for the firearm enhancement by instructing the jury that aggravated battery with a firearm was a greater offense. After Sanders, it is now apparent that “[l]esser included offenses are determined based on the elements of the offenses, not on the penalties attached.” Carle v. State, 983 So.2d 693, 695 (Fla. 1st DCA 2008). Under the Sanders procedure, the jury should have determined whether Haliburton committed the offense of aggravated battery by using a deadly weapon, by intentionally causing great bodily harm, or both. The state had alleged both theories in the information, and the jury was properly instructed that the state could prove aggravated battery under these alternative theories. The jury could have decided whether Haliburton possessed a firearm during the aggravated battery offense in a special interrogatory. Before Sanders, however, the law regarding how lesser included offenses should be listed on a verdict form was less clear.

No court has held that the ruling in Sanders applies retroactively to cases that were final when Sanders was decided. We do not believe that the evolutionary refinement announced in Sanders, regarding how to order offenses on a verdict form, applies retroactively to disturb the finality of Haliburton’s conviction. See State v. Barnum, 921 So.2d 513 (Fla.2005)

The Motions are Procedurally Barred

Haliburton’s untimely claim is barred by the law of the case and collateral estoppel doctrines and application of a procedural bar does not result in a manifest injustice. McBride, 848 So.2d at 291-92. The jury in this case was permitted to exercise its pardon power but refused to convict Haliburton of simple battery which was listed as the next lesser-included offense on the verdict form. The jury determined that the state proved beyond a reasonable doubt that Haliburton committed an aggravated battery by intentionally causing the victim great bodily harm.

Although it now seems more clear, after the refinement of Sanders, that the great bodily harm theory should not have been listed as a “lesser” included offense, any error in this case is not a fundamental error that can be raised at any time. Cf. Ray v. State, 403 So.2d 956 (Fla.1981) (setting out the test for determining whether an instruction on a permissive lesser-included offense that is improperly submitted to the jury without objection can be raised as a “fundamental error” on direct appeal). See also Bedford v. State, 970 So.2d 935 (Fla. 4th DCA 2008) (finding that neither a fundamental error nor a manifest injustice occurred where counsel objected to the improper instruction on a permissive lesser-included offense but the issue was not raised on direct appeal).

Unlike the situation in Ray and Bedford, Haliburton’s trial counsel objected to the instruction, and the issue was preserved and actually argued on appeal. The law at the time of the direct appeal was less clear, and this court affirmed. The. subsequent refinement in the law of Sanders does not mean that the potential error in this case can be raised at any time, even long after the conviction has become final. See Sanders v. State, 946 So.2d 953 (Fla. 2006) (holding that, although the failure to instruct the jury on a necessarily lesser-included offense (one step removed) can be per se reversible error on direct appeal, the mere possibility that a jury might have exercised its “pardon power” cannot support an ineffective assistance of counsel claim in a postconviction motion).

In addition to being barred as successive, none of the exceptions to the two-year time limitation of the postconviction rule are satisfied in this case. Fla. R.Crim. P. 3.850(b). The collateral attack against the conviction in this case is untimely and barred as successive.

Not All “Fundamental Errors” May Be Raised at Any Time

A fundamental error has been described as “error which reaches 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.” Gudinas v. State, 693 So.2d 953, 961 (Fla.1997). Also, a fundamental error is described as one “where the interests of justice present a compelling demand for its application.” Sochor v. State, 619 So.2d 285, 290 (Fla. 1993). Or, “error which goes to the foundation of the case or goes to the merits of the cause of action.” Sanford v. Rubin, 237 So.2d 134 (Fla.1970).

The “fundamental error” terminology is typically used in determining whether an error can be raised for the first time on direct appeal despite the lack of an objection at trial. See Maddox v. State, 760 So.2d 89, 95-96 (Fla.2000). Nevertheless, some errors, which have also been referred to as “fundamental errors,” are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So.2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006) (conviction for a nonexistent crime); Pass v. State, 922 So.2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy).

In this postconviction context, the inquiry focuses on whether a manifest injustice will occur if the error is not corrected. See, e.g., Silverstein v. State, 985 So.2d 635 (Fla. 4th DCA 2008); Miller v. State, 988 So.2d 138, 139 (Fla. 1st DCA 2008) (explaining that fundamental error and a manifest injustice result when a defendant is convicted of an offense for which the defendant could not have been convicted as a matter of law).

Conclusion

The alleged error in this case is not the type of error that can be raised at any time and which calls for disturbing the finality of this conviction. The evidence that Haliburton committed an aggravated battery by intentionally causing the victim great bodily harm was strong if not overwhelming. The jury had an opportunity to exercise its “pardon power” by convicting of simple battery but refused to do so. The instruction's potential effect on the jury’s “pardon power” is speculative and not grounds for relief in a postconviction motion. “The possibility of a jury pardon cannot form the basis for a finding of prejudice.” Sanders, 946 So.2d at 960. Haliburton’s claim is based on his speculation that the jury may have been misled into believing it was exercising its pardon power. The jury, however, found him guilty of aggravated battery beyond a reasonable doubt.

The instruction that the great bodily harm theory was a “lesser offense” in this case, although potentially erroneous, does not reach down into the validity of the trial such that the conviction on this count could not have been obtained without the error. Further, it did not become apparent that the instruction in this case might be in error until Sanders v. State, 944 So.2d 203 (Fla.2006), was decided which was after the conviction in this case was already final. This refinement in the law does not apply retroactively to cases that were final on appeal.

In addition to the above circumstances, Haliburton is serving a concurrent term of fifteen years in prison on one of the other counts for which he was convicted in this case. All of the above circumstances lead us to conclude that a manifest injustice does not result in this case, and we affirm the trial court’s order denying petitioner’s successive motions.

WARNER, POLEN and STEVENSON, JJ., concur.

      . We agree with the Second District Court of Appeal that even after Sanders the question of how enhancements and reclassifications affect whether an offense is truly a "lesser” offense is still problematic. See Chambers v. State, 975 So.2d 444 (Fla. 2d DCA 2007). The difficulty is magnified if potential recidivist sentencing enhancements, such as the PRR statute, must also be taken into account when fashioning a verdict form. We do not believe that recidivist sentencing enhancements that are applied by a judge after the jury enters its verdict can reasonably be factored into the determination of how offenses should be presented on a verdict form.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    ASHTEAD GROUP PLC, Appellant, v. RENTOKIL INITIAL PLC, Appellee.
    No. 2D08-423.
    District Court of Appeal of Florida, Second District.
    April 3, 2009.
    Rehearing Denied May 11, 2009.

      James P. Murray and Helaine S. Good-ner of Fowler White Burnett P.A., Miami, for Appellant.
    Yasir Billoo and John Golden of Golden & Grimes LLP, Miami, for Appellee.
   DAVIS, Judge.

Ashtead Group, PLC, challenges the trial court’s final summary judgment awarding Rentokil Initial, pic, the sum of $250,000. Because there remains an unresolved genuine issue of material fact, summary judgment was improper and we reverse.

BET Plant Services (BET), a subsidiary of Rentokil, erected a swing stage that was the cause of accidental injuries to Michael Linssen. After the accident, but before Linssen filed his personal injury claim, Rentokil sold its stock in BET to Ashtead. By the terms of the stock purchase agreement, Rentokil specifically agreed to indemnify and hold harmless Ashtead against any losses incurred by Ashtead due to incidents that occurred before the transfer of the stock, including claims brought after the stock transfer. By that same agreement, Ashtead agreed to cooperate with Rentokil in the defense, mitigation, and investigation of any such claims. This included the “preservation of documentary and physical evidence.”

Approximately a year after the stock transfer was completed, Linssen filed a claim stemming from the accident against Ashtead. Ashtead complied with the terms of the stock purchase agreement and notified Rentokil of the filing of the lawsuit. Although Rentokil was not a named party in the Linssen litigation, pursuant to its indemnity agreement with Ashtead, it undertook the defense of the case and engaged counsel to represent Ashtead. During the discovery stage of the proceeding, Ashtead advised Rentokil that it no longer had the swing stage’s hoist motor, which was the suspected cause of the accident.

The Linssen litigation was set for mediation. Prior to the mediation conference, the attorney hired by Rentokil but appearing on behalf of Ashtead sent a letter to Ashtead, which ostensibly was his own client, requesting that Ashtead participate in the mediation because the loss of the hoist motor had prejudiced the case by increasing the potential damages for which Rentokil ultimately might be responsible. Specifically, the letter stated, “[Pjlease consider this a formal demand or Notice of Vouching In for indemnity of any additional damages resulting from the spoliation by Sunbelt.” Ashtead, however, declined to participate in the mediation, suggesting that the “vouching in” principle did not apply.

At the mediation conference, the parties agreed to a settlement that called for Ash-tead to pay $500,000 to Linssen. Without consulting with Ashtead, its counsel included the following language in the final mediation agreement: “The parties agree that the spoliation [of the evidence] increased the value of this case by $250,000, which is included in this settlement.” However, nothing in the final mediation agreement makes clear how this $250,000 figure was reached.

Rentokil then filed suit against Ashtead seeking damages and alleging that Ash-tead’s failure to preserve the Linssen evidence in preparation for trial amounted to a breach of duty and a breach of contract. Rentokil further argued that Ashtead “waived all rights to contest the damage to [Rentokil] resulting from spoliation because it was invited to participate in the [mediation via a formal ‘vouching in’ and declined to do so.”

Rentokil then moved for summary judgment, arguing that it was not disputed that Ashtead had failed to preserve the motor and that “[a]t mediation, the parties agreed, as part of the [m]emorandum of [settlement, that the spoliation of the equipment caused the value of the Linssen ease to increase by $250,000, the value of which was included in the total settlement sum paid by Rentokil.” Rentokil further maintained that the principle of law known as “vouching in” precluded Ashtead from further litigating the amount of the damage award because Ashtead had been notified that it would be bound by mediation but “chose not to attend mediation or otherwise participate in settlement.” Rentok-il made this argument despite the fact that the attorney it engaged to represent Ash-tead did attend and participate in the mediation. Ashtead opposed the motion for summary judgment, arguing that there remained a genuine issue of material fact, namely what increase in settlement value was caused by its failure to preserve the motor for trial. Ashtead also argued that “vouching in” did not apply in this case and that its interests on this issue had not been represented at the mediation conference.

Following a hearing, the trial court determined that the principle of “vouching in” applied in the instant case and that it obligated Ashtead to pay to Rentokil $250,000 of the $500,000 settlement payment because Ashtead had failed to preserve the evidence as required by the parties’ contractual agreement. The trial court therefore entered a final judgment in favor of Rentokil in the amount of $250,000. It is Ashtead’s appeal of that order that we now consider.

The general rule of indemnification is that an indemnitor who has notice of the suit filed against the indemnitee by the injured party and who is afforded an opportunity to appear and defend it is bound by a judgment rendered against the indemnitee as to all material questions determined by the judgment.... Florida courts often refer to the effect of this rule as “vouching in” the indemnitor.

Camp, Dresser & McKee, Inc. v. Paul N. Howard Co., 853 So.2d 1072,1079 (Fla. 5th DCA 2008) (citations omitted). The rule of “vouching in” is “[premised on the concepts of estoppel and res judicata.” Id. The judgment rendered in the action between the injured third party and the defendant indemnitee is binding for the purpose of enforcing the indemnity agreement against the indemnitor with regard to the material facts litigated in the main action. Id. However, contrary to the trial court’s conclusion, this principle of law is not applicable to the facts of the instant case.

First, the rule secures the benefit of an indemnitee under either an implied or expressed indemnity agreement. Although the stock purchase agreement does contain an expressed indemnity agreement, Rentokil is the indemnitor under that agreement, not the indemnitee. There is no indemnity agreement between Rentokil and Ashtead by which Ashtead agreed to indemnify Rentokil for any losses.

“[Vouching in] is applicable by the party first sued in an action against the party ‘vouched in’ when the liability of the vouchee to the voucher is the same as the liability of the voucher defendant to the plaintiff to the action.” Olin’s Rent-A-Car Sys., Inc. v. Royal Cont'l Hotels, Inc., 187 So.2d 349, 351 (Fla. 4th DCA 1966) (citations omitted). Here, Ashtead became the “party first sued” when Linssen filed his complaint. Although Rentokil, pursuant to the indemnity agreement, hired counsel to represent Ashtead, Rentokil was not a party to the Linssen lawsuit. While the “vouching in” principle would have allowed Ashtead to bind Rentokil because the liability of Rentokil to Ashtead under the indemnity agreement was the same as the liability of Ashtead to Linssen, it does not enable Rentokil, as the indem-nitor, to bind Ashtead. As such, Rentok-il’s attempt to “vouch in” Ashtead with regard to the issue of liability based on Ashtead’s failure to preserve the motor is an improper application of the “vouching in” principle.

Additionally, the increased settlement value caused by the failure to preserve the suspected motor was not a material issue of fact in the main action-the Linssen litigation. Linssen’s concern was the gross settlement sum of $500,000, not how much of that amount was a result of the lost hoist motor.

Finally, “vouching in” is not applicable here because Ashtead’s interest in this particular issue was not fairly represented in the settlement conference. The issue here was not between Ashtead and Linssen, the parties to the litigation that was the subject of the mediation. Rather, this was an issue of fact between Ashtead and Rentokil based on Ashtead’s agreement to preserve the evidence contained in the stock purchase agreement. That the attorney purportedly representing Ash-tead’s interest at the mediation conference was, in fact, not doing so is shown by his placing his own client on notice that it needed separate representation at the mediation. “Vouching in” is premised on the idea that the alleged “vouchee” is not prejudiced by his failing to become involved in the litigation because his interests will be fairly represented by the “voucher.” See Univ. Am. Barge Corp. v. J-Chem, Inc., 946 F.2d 1131, 1140 (5th Cir.1991) (“[A]n alleged indemnitor who is vouched in to the primary action but declines to defend is bound by the findings in that action, but only as to those unconflicted issues on which its interests were adequately represented in the action. Adequate representation makes sure that the issues of shared concern to the indemnitee and indemnitor alike are actually and fully litigated.” (citations omitted)).

Having concluded that the rule of “vouching in” does not apply to the facts of this case, we also conclude that summary judgment was improper because there remains an issue of material fact to be determined by the trier of fact, i.e., what portion of Linssen’s settlement value was due to Ashtead’s failure to preserve the motor. Accordingly, we must reverse.

Reversed and remanded for further proceedings.

VILLANTI and WALLACE, JJ, Concur.

      . Although Ashtead was operating the equipment business through its subsidiary, Sunbelt Rentals, Inc., Ashtead is the actual party in the litigation and the named party in this appeal.

      . Although a copy of the letter from the attorney to Ashtead is included in the record, the responding correspondence is not. However, at the hearing on the motion for summary judgment, counsel for Rentokil stated: '‘Ash-tead chose to ignore that letter. There is a bone of contention. My inference of the correspondence was that they just didn't think this was a valid way to do things.”

      . The settlement also called for another named defendant to pay Linssen an additional $150,000 in damages. That portion of the settlement and the other defendant are not a part of this appeal.


author: MONACO, J.

text:
    ADAMS HOMES OF NORTHWEST FLORIDA, INC., Appellant, v. Jason Lucas CRANFILL and Tyrah Cranfill, Appellee.
    No. 5D08-2359.
    District Court of Appeal of Florida, Fifth District.
    April 3, 2009.

      J. Craig Delesie, Jr. and Gini Lynn Jenkins of Kadyk Delesie & Espat, Tampa, for Appellant.
    Glen E. Chaney, of Hayworth, Chaney & Thomas, P.A., Melbourne, for Appellee.
   MONACO, J.

The issue we address in this appeal is whether the 2004 amendments to the workers’ compensation statutes make ma-terialmen on a construction work site statutory employees for worker’s compensation immunity purposes. We hold that materialmen are still excluded from the definition of a statutory employee, and that the general contractor is therefore not entitled to immunity from tort liability for ordinary job site injuries suffered by an employee of the materialman.

Reduced to their essence, the facts are that the appellant, Adams Homes of Northwest Florida, Inc., was constructing a house that was contracted to be sold to a buyer upon completion. One of the appellants, Jason Lucas Cranfill, was employed by Seacoast Building Supplies. Seacoast contracted to furnish and deliver roofing materials to the construction site. A subcontractor not a party to this action was responsible for actually installing the roof. When Adams Homes needed roofing materials for any of its projects, it would simply telephone Seacoast and order the product. After delivery, Seacoast would give Adams Homes a delivery ticket for payment.

Mr. Cranfill delivered the roofing materials to the roof of the house being constructed by Adams Homes. When he did so, he delivered the products to the roof of the partially constructed home in accordance with Seacoast’s standard operating procedure to “stock the roofs out.” The testimony indicates that this procedure is part of the standard industry practice for roofing material suppliers. Mr. Cranfill alleges that he fell through the roof of the home because the plywood covering it collapsed, and that he was seriously injured as a result.

Mr. Cranfill brought suit against Adams Homes alleging negligent construction or maintenance, and his wife Tyrah Cranfill, sought damages for loss of consortium. The parties filed cross-motions for summary judgment on the issue of whether Adams Homes was entitled to assert worker’s compensation immunity as a defense. More specifically, Adams Homes asserted that Mr. Cranfill was a statutory employee, and that it was accordingly entitled to the defense. Mr. Cranfill took the opposite position. The trial court found that Seacoast was a materialman under the definition found in Chapter 713, Florida Statutes, and that Adams Homes was not entitled to the worker’s compensation immunity defense for an injury suffered by an employee of Seacoast. We agree with that assessment.

With certain exceptions, worker’s compensation benefits are the exclusive remedy for employees who are injured on the job, and their employers are entitled to liability immunity for such injuries. The concept of “employer” has been broadened in an important respect. In the construction law context section 440.10(l)(a) and (b) define what has been described as “statutory employees.”

Section 440.10(l)(a), Florida Statutes provides in this regard that:

Every employer coming within the provisions of this chapter shall be liable for and shall secure, the payment to his or her employees,.... Any contractor or subcontractor who engages in any public or private construction in the state shall secure and maintain compensation for his or her employees under this chapter as provided in s. 440.38.

Section 440.10(l)(b), Florida Statutes, then provides in pertinent part:

In case a contractor sublets any part or parts of his or her contract work to a contractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of any subcontractor who has secured such payment.

By sublet, the Legislature essentially meant to “underlet,” and the effect of subletting is to pass on to another an obligation under a contract for which the person so “subletting” is primarily obligated. See Cuero v. Ryland Group, Inc., 849 So.2d 326 (Fla. 2d DCA), review denied, 855 So.2d 621 (Fla.2003). Thus, section 440.10, Florida Statutes (2008), is designed to ensure that employees engaged in the same contract work are covered under worker’s compensation, regardless of whether they are employees of the general contractor or any of its subcontractors. See Dunlap v. CSR Rinker Transport, 978 So.2d 817 (Fla. 1st DCA), review denied, 991 So.2d 386 (Fla.2008); Andrews v. Drywall Enters., 569 So.2d 821, 823 (Fla. 1st DCA 1990).

Worker’s compensation benefits are the exclusive remedy against the employer for employees who are injured on the job. Consequently, where the statutory employer secures coverage or ensures that the subcontractor does so, the statutory employer is immune from suit for the employees’ personal injuries. The obvious legislative intent is to make sure that a person performing a contractor’s work, even an employee of a subcontractor, is entitled to worker’s compensation protection from the primary employer if the subcontractor fails to provide such coverage. See Gator Freightways, Inc. v. Roberts, 550 So.2d 1117, 1119 (Fla.1989); Broward County v. Rodrigues, 686 So.2d 774, 775 (Fla. 4th DCA), cause dismissed by, 690 So.2d 1300 (Fla.1997); Miami Herald Pub. v. Hatch, 617 So.2d 380, 381 (Fla. 1st DCA 1993). Thus, worker’s compensation immunity derives from a vertical relationship between a contractor and its subs. See Chase v. Tenbroeck, 399 So.2d 57, 60 (Fla. 3d DCA), review denied, 411 So.2d 380 (Fla.1981).

The difficulty presented by the facts of the present case is that the worker’s compensation statutes do not specifically define a materialman, nor do they unambiguously instruct the courts to consider such persons to be subcontractors. As long ago as 1958, the Florida Supreme Court pointed out that chapter 713, Florida Statutes, the Construction Lien Statute, might aid in the interpretation of the Worker’s Compensation Act since the two statutes could be read and considered together. Gold-stein v. Acme Concrete Corp., 103 So.2d 202 (Fla.1958). The supreme court came to this conclusion because lawmakers used similar phrasing in both enactments when dealing with construction projects. Accordingly, a court can assume that in both chapters the legislature intended certain precise words or exact phrases to mean the same thing. In a broad sense then, the chapters were in pan materia so that definitions for some of the terms utilized in the Worker’s Compensation Statutes could be borrowed from Chapter 713. See also Chase, 399 So.2d at 58 n. 1.

Section 713.01(8) defines “contractor” as a person other than a materialman or laborer who enters into a contract with an owner of real property for improving it, or who takes over from a contractor the remaining work under the contract. Even assuming for the purpose of this analysis that Adams Homes is a contractor within the definition found within section 713.01(18), an issue in serious doubt because it was the owner of the property on which the accident occurred, we conclude that the position of Adams Homes is without merit.

Under section 713.01(20) “materialman” means any person who furnishes materials under contract to the owner, contractor, subcontractor, or sub-subcontractor on the site of the improvement or for direct delivery to the site of the improvement and who performs no labor in the installation thereof. Finally, under section 713.01(28), a “subcontractor” means a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor’s contract. Early on the courts of Florida began distinguishing between ma-terialmen and other persons on a construction site.

In Goldstein, for example, an employee of a general contractor on a housing project was injured when struck by a concrete mixer truck owned by Acme Concrete Corporation. The Acme employee was at the time on the job site pouring a load of ready mix concrete into forms prepared by the general contractor. The .specific question raised was whether Acme was a subcontractor for worker’s compensation purposes, or a third party against whom an independent action could be maintained. The Florida Supreme Court held in part:

The rule which restricts an employee of a subcontractor to the provisions of the workman’s compensation act for injuries received ... should not be extended in such a manner that it could be said to apply to materialmen.

Goldstein, 103 So.2d at 205. The Florida Supreme Court in Goldstein was strongly influenced in arriving at this conclusion because it viewed the relation of Acme and the general contractor as one of vendor and vendee. See also Hunt v. Ryder Truck Rentals, Inc., 216 So.2d 751 (Fla. 1968); Street v. Safway Steel Scaffold Co., 148 So.2d 38, 42 (Fla. 1st DCA 1962) (the mere leasing of equipment or the mere sale and delivery of materials to a general contractor would not grant the privilege of exclusive remedy to the lessor or vendor because § 440.10 does not impose upon a general contractor the duty to secure compensation to employees of lessors or vendors even though a vendor may render some services or labor in delivering materials to the job site).

Under our jurisprudence, therefore, a materialman has not historically been viewed as a statutory employee for worker’s compensation purposes. Acme Homes nevertheless posits that in 2003, the Florida Legislature amended the worker’s compensation statutes to make all persons working or performing services on a construction site statutory employees. It did so, according to the brief filed in this court by Adams Homes, by amending section 440.02(15)(c)(2) to include as statutory employees of a contractor, “[a]ll persons who are being paid by a construction contractor.” The phrase, however, does not end there. The full sentence (minus parts irrelevant to this consideration) reads:

(c) “Employee” includes:
2. All persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption ... or has otherwise secured the payment of compensation coverage as a subcontractor ... for work performed by or as a subcontractor. [Emphasis supplied].

In our view the amendments to the statute made by the legislature did not have the effect of adding materialmen to the list of persons who would be considered as statutory employees of the contractor. Certainly if it had intended to do so, the legislature would have chosen language specifically mentioning materialmen. Thus, we reject Adams Homes’ position in this regard.

Although Adams Homes raises a number of other associated issues, we conclude that they are not meritorious. One argument does warrant a few comments. Adams Homes takes the position that because Mr. Cranfill delivered the roofing materials to the roof, as opposed to simply laying them on the ground, Seacoast was actually doing roofing work as a subcontractor, and thus its employee, Mr. Cran-fill, was the contractor’s statutory employee. We reject this position, as well. First, delivery of roofing materials to the roof, according to the general manager of the Adams Homes local office, is standard operating procedure. Likewise, a manager for Seacrest testified that roofing materials as part of standard practice were “delivered to the roof top.” This seems to us to be no more than delivery of the materials in the usual fashion of a vendor and vendee, and nothing more. Putting them on the roof does not make the supplier a subcontractor. Indeed, in Goldstein the employee of the concrete supplier was actually pouring a load of concrete into forms prepared by the general contractor at the time of the accident. That activity, which seems far more significant than placing shingles on a roof, was not enough to make the employee here a statutory employee of the general contractor.

Accordingly, we affirm the Order On Parties’ Motions For Cross Summary Judgment rendered by the trial court in all respects.

AFFIRMED.

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

      . We have jurisdiction pursuant to rule 9.130(a)(3)(C)(v), Florida Rules of Appellate Procedure.

      . See Cuero v. Ryland Group, Inc., 849 So.2d 326 (Fla. 2d DCA), review denied, 855 So.2d 621 (Fla.2003). To be a contractor, and thus a statutory employer pursuant to section 440.10, one must have a contractual obligation to perform some work for another. In other words, it is basic that one cannot be a "contractor” within the meaning of the statute unless the contractor has a contractual obligation, a portion of which is sublet to another. See Dunlap, 978 So.2d at 819. The Cuero court essentially concluded that the owner-developer of the property upon which the accident occurred was not entitled to'immunity because as the owner-general contractor of its own development property it owed no contractual duty to anyone except itself. See also Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417 (Fla. 3d DCA), review denied, 479 So.2d 117 (Fla. 1985). Here, Adams Homes entered into a contract with a buyer to construct the home on its own property, and upon completion the buyer would buy it. As we do not reach our decision on whether Adams Homes enjoyed the status of contractor, we express no opinion on this nuance.


author: CASANUEVA, Judge.

text:
    Dale Roger LELAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5500.
    District Court of Appeal of Florida, Second District.
    April 3, 2009.
    James Marion Moorman, Public Defender, and Adam S. Tanenbaum, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph Hwan-Yul Lee, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Dale Roger Leland appeals his judgment and sentence for lewd and lascivious molestation. Because the trial court allowed the presentation of improper Williams rule evidence, we reverse and remand for a new trial.

I.

Mr. Leland was charged with violating section 800.04, Florida Statutes (2002), by engaging in the lewd and lascivious molestation of his twelve-year-old stepdaughter, S.V. The offense allegedly took place inside the family home between October 5, 2002, and October 5, 2003. S.V. was lying on the family couch, wearing a long T-shirt which reached below her panties and covered her buttocks. Testimony suggested that it was not unusual for Mr. Leland to massage S.V.’s legs and back because she had a history of back and joint problems. S.V. testified that on this particular occasion, Mr. Leland began rubbing her ankles and continued rubbing up her legs, stopping where her legs and torso met. He then lifted her T-shirt and kissed her upper thigh. S.V. expressly testified that Mr. Leland did not massage or kiss her buttocks, touch her vagina or breasts, reach under her panties or T-shirt, or speak to her in a manner suggesting he was desirous of engaging in sexual relations with her.

Before trial, the State successfully moved to allow similar fact evidence of another alleged crime, wrong, or act, pursuant to section 90.404(2)(b)(l), Florida Statutes (2006). The evidence involved an incident between Mr. Leland and the victim’s seventeen-year-old sister, S.W.

At the hearing on the motion, S.W. testified that early in the morning on May 1, 2006, Mr. Leland entered her bedroom, closed the door, sat on her bed, and began rubbing her back, ear, and legs. He also played with her hair. S.W. became uncomfortable and ended the encounter without further incident. There was no evidence that Mr. Leland touched S.W.’s breasts, genital area, or buttocks. To give context to this encounter, the State elicited testimony from two deputies that Mr. Leland said his intention, at the time, was to learn if S.W.’s prior behavior toward him was flirtatious. If it was, Mr. Leland told deputies that he likely would have sought to take the relationship to the next level. One of the deputies testified that Mr. Leland’s conduct with S.W. did not constitute a crime and that the time between the charged incident with S.V. and the incident with S.W. was between three and four years.

II.

Character evidence of other crimes, wrongs, or acts is admissible in evidence when the statutory requirements of section 90.404 are met. Specifically, 90.404(2)(b)(l) provides that in a criminal case where “the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing in any matter to which it is relevant.” A trial court’s decision to admit such evidence, often referred to as Williams rule evidence, is reviewed under an abuse of discretion standard. See Ray v. State, 755 So.2d 604, 610 (Fla.2000); Kulling v. State, 827 So.2d 311, 312 (Fla. 2d DCA 2002).

For the purposes of section 90.404(2)(b), “child molestation” is defined as “conduct proscribed by s. 794.011 or s. 800.04 when committed against a person 16 years of age or younger.” § 90.404(2)(b)(2); see also Foreman v. State, 965 So.2d 1171, 1173-74 (Fla. 2d DCA 2007) (further discussing these two statutory requirements).

We conclude that the S.W. incident did not meet either prong of section 90.404(2)(b)’s definition of “child molestation.” First, S.W. testified that Mr. Leland touched her back, ear, and legs. None of these acts constitute a sexual battery under section 794.011 or a lewd or lascivious offense under section 800.04. In fact, the deputy who testified for the State at the hearing conceded that Mr. Leland had not committed a crime with S.W. Second, S.W. was seventeen years of age at the time of the alleged act and thus was not “16 years of age or younger” as prescribed by section 90.404(2)(b)(2). Consequently, the evidence was not admissible pursuant to this section.

III.

Having concluded that the admission of the evidence constituted error, the conviction may be upheld if the error was harmless. As the beneficiary of the erroneous evidentiary ruling, the State is required to establish beyond a reasonable doubt that the error did not contribute to the conviction. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). In this instance, we find the State is unable to satisfy this heavy burden. Without the inadmissible evidence, the record contains no evidence to demonstrate Mr. Leland intended to touch S.V. in a lewd and lascivious manner. See § 800.04(5)(a) (a person must “intentionally touch[ ] in a lewd or lascivious manner” to commit lewd or lascivious molestation). Instead, the remaining record evidence suggests that Mr. Leland’s intent was to relieve S.V.’s discomfort from her joint problems. Testimony established that Mr. Leland had massaged S.V. in the past and continued to give her massages after the alleged criminal episode. S.V. jumped up off the couch and was seen smiling by her mother and Mr. Leland after he finished the massage.

IV.

Because the trial court erred in admitting the Williams rule evidence, and the State cannot show that the improper admission of that evidence was harmless, we reverse.

Reversed and remanded for a new trial.

WHATLEY and WALLACE, JJ., Concur.

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

      . To protect each child involved in this case from improper identification, we shall refer to the victim as "S.V.” and to Mr. Leland's other stepdaughter as "S.W.”

      .We do not address the sufficiency of the State's evidence because it is not at issue.


author: PER CURIAM.

text:
    Donald Jermaine DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3869.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2009.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. United States v. Arias, 984 F.2d 1139 (11th Cir.1993).

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    Kelly T. SHELBY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2294.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Kelly T. Shelby, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Petrillo v. State, 554 So.2d 1227, 1228-29 (Fla. 2d DCA 1990); Woods v. State, 542 So.2d 443, 444 (Fla. 5th DCA 1989).


text:
    Jose A. DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2561.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Jose A. Diaz, in proper person.
    Bill McCollum, Attorney General and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

As part of Argument 1, defendant-appellant Diaz contends that his sentence exceeds the legal maximum on counts four, five, eight, and ten through thirteen. See Fla. R.Crim. P. 3.850(a)(4). The trial court’s order denied the motion and directed that the posteonviction record include the State’s Amended Response with all attachments. However, those documents were not transmitted to this court, and the State has been unable to locate any response filed in connection with this particular Rule 3.850 motion. Because the record now before us does not conclusively refute the defendant’s claim, we reverse the denial order insofar as the defendant contends that the sentences exceed the legal maximum on the above-mentioned counts. If the trial court again summarily denies the motion, it shall attach documents conclusively refuting the defendant’s claim. See Fla. R.App. P. 9.141(b)(2)(D). We affirm the denial order with regard to the balance of the defendant’s Rule 3.850 motion.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.


text:
    William GIBSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2683.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    William Gibson, in proper person.
    Bill McCollum, Attorney General, and Nicole Hiciano, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SALTER, JJ.
   PER CURIAM.

Affirmed. See Horn v. State, 775 So.2d 1007 (Fla. 3d DCA 2001).


text:
    Tori MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-34.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Rehearing Denied May 4, 2009.
    Tori Moore, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SALTER, JJ.
   PER CURIAM.

Affirmed. See State v. Richardson, 915 So.2d 86 (Fla.2005); Stabile v. State, 790 So.2d 1235, 1238 (Fla. 5th DCA 2001).


author: WELLS, J.

text:
    Desmond MATTISON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-557.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Desmond Mattison, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, J.

Desmond Mattison appeals from an order summarily denying his Florida Rule of Criminal Procedure 3.800(a) motion for additional credit for time served. On appeal from a summary denial, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to conclusively refute the defendant’s claim, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the motion, the court shall attach record excerpts conclusively showing that the appellant is entitled to no relief. See Taylor v. State, 970 So.2d 370, 371 (Fla. 3d DCA 2007); Dorn v. State, 928 So.2d 507, 508 (Fla. 3d DCA 2006); Lee v. State, 907 So.2d 1264,1265 (Fla. 3d DCA 2005).

Reversed and remanded for further proceedings.


author: ROTHENBERG, J.

text:
    Eric L. ROSS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-491.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Eric L. Ross, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, WELLS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendant, Eric Ross, appeals the trial court’s denial of his motion for post-conviction relief. We affirm, as the record clearly refutes the defendant’s claims of ineffective assistance of counsel.

Affirmed.

      . The thoroughness of the State's response, the trial court's review, and the record attachments provided, enabled this Court to perform both a meaningful and an expeditious review. We thank the trial court and the Assistant State Attorney for their conscientious efforts.


author: SUAREZ, J.

text:
    Daniel PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-139.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Daniel Perez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Daniel Perez appeals from the denial of his postconviction relief motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Perez raised six issues in his postconviction relief motion, but the trial court only addressed the first issue in its order denying relief. We affirm the trial court’s order as it applies to Perez’s first issue. The trial court, however, failed to address the defendant’s five remaining issues in its order denying relief, and as far as those issues are concerned, the record attached does not conclusively show that the appellant is entitled to no relief. Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief regarding the defendant’s remaining five postconviction issues. See Fla. R.App. P. 9.141(b)(2)(A), (D). If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Affirmed in part; reversed and remanded in part for further proceedings.


text:
    George SANGILLO, Appellant, v. EMJACK ENTERPRISES, INC., a Florida corporation, H & S Title and Escrow, Inc., a Florida corporation, Laura Rich, Wilson King Tway, Jack J. Wellborn, Jr., and Dale Westberry, Appellee.
    No. 1D08-5955.
    District Court of Appeal of Florida, First District.
    April 14, 2009.

      Daniel W. Uhlfelder, Grayton Beach, for Appellant.
    Shannon L. Widman of Porath & Associates, P.A., Santa Rosa Beach, and Robert A. Gilmore of Ledbetter & Gilmore, P.A., Destín, for Appellee.
   PER CURIAM.

DISMISSED. See Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995) (dismissing appeal as premature where order merely granted motion without entering judgment thereon). The appellee’s Motion Permitting Lower Tribunal to Render Final Order, filed on December 23, 2008, is denied.

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


text:
    M.J.P., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6046.
    District Court of Appeal of Florida, First District.
    April 14, 2009.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this juvenile delinquency appeal, the state correctly concedes that the trial court committed reversible error when it denied appellant’s request to withdraw her uncounseled plea of guilty on the ground that the trial court failed to conduct the required “thorough inquiry” regarding appellant’s waiver of counsel. See Fla. R. Juv. P. 8.165(b)(2); State v. T.G., 800 So.2d 204, 210-11 (Fla.2001). We reverse the denial of appellant’s request to withdraw her plea, and remand with directions that the trial court permit appellant to withdraw her plea and then conduct such further proceedings as may prove necessary.

REVERSED and REMANDED, with directions.

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.


text:
    Reginald M. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-916.
    District Court of Appeal of Florida, Fifth District.
    April 14, 2009.
    Reginald M. Jackson, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Spann v. State, 985 So.2d 1059 (Fla.2008).

GRIFFIN, SAWAYA and TORPY, JJ., concur.


text:
    Gerald LELIEVE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2225.
    District Court of Appeal of Florida, Third District.
    April 15, 2009.
    Rehearing Denied May 8, 2009.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   WELLS, J.

Gerald Lelieve appeals his conviction and sentence for trafficking in cocaine. Lelieve argues three rulings merit reversal: first, the trial court’s denial of his request to discharge counsel and retain different private counsel; second, the trial court’s denial of his motion for mistrial following testimony of a detective who, in violation of a pretrial order, identified the scene of the underlying event as a house which was known as a place where nareot-ics were sold; and third, the trial court’s denial of a mistrial based on the cumulative prejudice of two prosecutorial comments made during closing argument. Because we find no reversible error has been demonstrated, we affirm the order under review.

Lelieve was charged -with a single count of trafficking in cocaine and tried with co-defendant, Augustin Fleurimond, who was charged in the same information with two counts of trafficking in cocaine and two counts of sale of cocaine within 1,000 feet of a school. The day before jury selection was to begin, Lelieve’s counsel advised the trial court that two days earlier he had learned that some witnesses to Lelieve’s arrest, previously thought to be outside the jurisdiction, had returned (or were about to return) and might now be available to provide exculpatory information. Although Lelieve had filed a speedy trial demand just the week before, Lelieve asked the court to strike the speedy trial demand and continue the trial. The request was denied. Lelieve thereupon, following a short break in the proceedings, asked that he be allowed to hire new private counsel. The trial court, stating that it was conducting a Nelson inquiry, asked Lelieve to specify his reasons for wanting new counsel. After Lelieve explained that although he did not know the whereabouts of the witnesses his attorney had referred to earlier in the ■ day, he wanted a new attorney because he had told his attorney about these witnesses at the start of the ease, but the attorney had done nothing to talk to them. The motion was denied.

The next day, immediately before jury selection, co-defendant Fleurimond’s counsel made an ore terms motion to preclude the State from introducing evidence concerning prior drug sales from the house where the events in this case took place:

[COUNSEL FOR FLEURIMOND]: The only issue that I have is a Motion in Limine. I’ve noticed in going through some of the depositions that some of the officers said, in response to the question, why did you go to this location, there was [sic ] sales years ago or a long time ago at this house.
Just ask the State to inform the witnesses that I don’t think that’s proper in this case, that there was [sic ] any sales.

Counsel for Lelieve joined in this motion, which was granted without objection from the State.

Trial commenced the following day. During its short opening statement, the State advised the jury that this case involved police surveillance of a house being watched for drug activity:

[FOR THE STATE]: This is a case about drug-dealing. On October 11th, 2006, police officers were conducting surveillance. A team of police officers were [sic] watching a house, Mr. Fleuri-mond’s house, for drug-dealing activity.

This statement drew no objection from either Fleurimond or Lelieve.

Following equally short opening statements from Fleurimond, who focused on inconsistencies in the State’s case, and Le-lieve, who focused on the fact that there was no fingerprint, DNA, photographic, videographic, or audiographic evidence to corroborate the testimony of the State’s witnesses, the State began its case by calling Detective Gayle, one of two officers who conducted a surveillance of a house located at 59th Street and NW 1st Avenue in Miami.

Shortly after Detective Gayle began to testify, the trial court interrupted the prosecutor to inquire whether she had “instructed all of [her] officers as to the Motion in Limine.” The prosecutor responded that she had so instructed only her first two witnesses, Detectives Gayle and Fernandez. She was reminded to advise all of the State’s witnesses that there was to be no testimony about a “high crime area, [or] any previous contact with anybody.” She agreed.

Following this warning, Detective Gayle testified that she was a member of a crime suppression unit which, on the day at issue, consisted of herself and Detective Belfort, who were the “eyeballs” watching a particular house, and a number of additional “takedown” units, comprised of officers who would effectuate the apprehensions and arrests resulting from the operation. According to Detective Gayle, she and Detective Belfort were located inside a van parked directly in front of the house involved, the front door of which was only ten to fifteen feet from their van. Detective Gayle further testified that within twenty minutes of their arrival, she saw a white man walk up to, and knock on, the front door of the house under surveillance. She then saw the door opened by a man she positively identified as co-defendant Fleurimond. Detective Gale then saw the white man hand money to Fleurimond, who briefly closed the door before quickly reopening it and handing a small item to the man at the door. The man then left the house being surveilled and entered a nearby home. The man was not arrested so as to avoid revealing the officers’ presence.

Shortly after this transaction took place, Detective Gayle observed a second transaction during which a black man in a burgundy colored van drove up to the house being watched. This man also approached the house, knocked on the door and gave money to Fleurimond after Fleurimond opened the door. As before, Fleurimond moved away from the door and returned shortly, to hand a small item to the man at the door. After this man drove off, the nearby takedown teams were advised of the vehicle’s description and direction of travel. The van was stopped and the occupant arrested.

Approximately fifteen minutes later, Gayle observed a third transaction. This time, a white van pulled up to the residence. The driver, a black man positively identified by Detective Gayle as Lelieve, exited the vehicle, approached the front door and knocked. As before, the door was opened by Fleurimond, who took money from Lelieve, went into the house and returned to hand something to Lelieve. Detective Gayle saw Lelieve place in his waistband this item, described as a clear plastic bag, and then leave in the white van. The takedown units were alerted and provided with a description of the vehicle that this man was driving; the vehicle was stopped a short distance away. Lelieve, who was driving the van when it was stopped, was searched and a package containing what subsequently turned out to be almost fifty grams of cocaine was found in Lelieve’s groin area. Lelieve was arrested.

After observing this third transaction, Detective Gayle, in conjunction with another officer, ordered a takedown on the house. According to Detective Gayle, as the takedown officers approached the house, she saw Fleurimond come to the door. After the house was searched, Fleu-rimond was arrested.

Detective Gayle’s testimony about the details of the transactions that she observed, and Fleurimond’s and Lelieve’s part in those transactions, was corroborated by the testimony of Detective Belfort, the other “eyeball” and the second witness called to testify by the State. After initially being asked to point out on a visual aid the location of the house that he and Detective Gayle were watching and its proximity to a nearby elementary school and park, Detective Belfort was asked to detail where he and Detective Gayle were located while making their observations. Detective Belfort was then asked what happened during the surveillance. He responded, stating:

We were set up at the location. We were doing a — surveillance at our location with — that we knew to be selling narcotics.

Lelieve objected and the jury was sent to the jury room. Lelieve then moved for a mistrial “based on the impermissible testimony by this officer as to the previous criminal activity at the location in question” which counsel equated with “ ‘high crime area’ testimony that has previously been condemned.” Lelieve also argued that the testimony violated the motion in limine granted before trial. The State responded, arguing that the testimony was only common sense testimony explaining why all of these officers were focused on this particular house. Out of the presence of the jury, the trial court agreed with the State’s argument and, with a warning not to make it a feature of the case, deferred on the motion for mistrial which ultimately was denied:

THE COURT: Well, actually it’s an interesting argument, and I’m going to defer on the motion for mistrial because I’m not sure that I disagree with the Statement. I mean, the testimony was that they were conducting a surveillance of this particular house, and a reasonable inference is that they — they didn’t just wake up one morning and say, let me go to 59th Street and 22nd Avenue, wherever this particular place was, and let me watch it.
There had to be a basis. Now, I don’t know what more is going to come. I don’t know if there is going to be to be [sic] additional statements could create an issue, but right now my gut is to say that I’m going to deny the motion.
But instead of saying, that, because I don’t know what else is coming, I’m going to defer on the Defense’s Motion for Mistrial.
I will also note that the case law actually talks about a distinction between a single isolated comment and a comment that becomes — my words, not the case law’s word — a feature of the case, meaning there is multiple mentions.
The State attorney stands up and makes argument during closing that type of thing that could give rise to a mistrial.
At this time I just don’t think it rises to that level.

After hearing counsel for Fleurimond, the court reiterated that it was deferring on the motion for mistrial and noted that Fleurimond’s objection was preserved. Outside the hearing of the jury, the court instructed the officer to make no further mention of a high crime area or persons law enforcement had contact with at that location. No further mention of the officers’ reasons for watching this particular house was made by any of the other five detectives who testified about the surveillance, the takedowns, the searches, the items seized, and the arrests.

Both Fleurimond and Lelieve testified at trial. Fleurimond’s testimony was that he had never gone to the door of the house being surveilled and that he was there only to take a shower because the plumbing at his house was not working. Lelieve testified that he was from Orlando and only in Miami to assist the owner of the van that he was driving in transporting passengers to and from those two cities. He maintained that on the day at issue, the van had stopped across the street from the house in question to pick up a passenger, who never appeared; that no one left the van while at the location in question; and that the drugs found on him were planted by the police to deflect claims of police brutality stemming from a beating they allegedly inflicted on him during his arrest.

At the conclusion of the testimony, the court reduced Fleurimond’s two charges for sale of cocaine within 1000 feet of a school to two counts of possession of cocaine with intent to sell. The court did so because there was no testimony as to the distance between the drug-house and the nearby elementary school. Despite this ruling, the State advised the jury in its initial closing argument that the house at issue was next to a school. It also told the jury that Fleurimond had been caught flushing drugs down the toilet. There was also no evidence to this effect, and Fleuri-mond timely objected to both arguments. Lelieve raised no objections whatsoever during the State’s initial closing argument.

Fleurimond’s closing focused primarily on inconsistencies between Detective Gayle and Detective Belfort’s testimony. He also emphasized the fact that there we no fingerprints or photographs of the events about which these officers testified, and he challenged the State to “[s]how me a video. Show me a picture,” of what the detectives said had transpired. Lelieve’s closing continued along these lines with the claim that there was no corroboration of the officers’ testimony which, according to Lelieve, had to be confirmed by an independent source of physical evidence.

Against this backdrop, the State argued in rebuttal that no physical corroboration was necessary and that common sense dictated that officers watching a place for drug transactions do not exit their vehicles to make videos or take photographs. Finally, after using all of the time allotted to it for closing argument and being told to “wrap it up,” the State started to argue that, while the defendants thought it unfair that no photographs or videotapes of then’ alleged wrongdoing existed, there was some unfairness on both sides. But before the State could get its argument out, it was interrupted by an objection from Fleu-rimond:

[FOR THE STATE]: Earlier — and I’m wrapping it up, Judge, — earlier [counsel for Fleurimond] indicated it wasn’t fair to his Defendant, to his client ... that we didn’t have the video. It wasn’t fair; that this lack of evidence wasn’t fair.
Well, how fair is it to Miami-Dade County that there’s people out there, these two individuals—
[COUNSEL FOR FLEURIMOND]: Object to that, Judge.
The objection was sustained.

After the jury was charged and retired, Fleurimond moved for a mistrial based on the State’s arguments related to “the flushing incident” about which there was no evidence; the location of the school, again about which there was no evidence; and the “fair[ness]” to Miami-Dade County. The motion was denied. After the motion was denied, the court asked counsel for Lelieve if he was joining in the motion for mistrial, to which he responded “[t]o the extent that it applies to Mr. Lelieve, Judge.”

Fleurimond was found guilty on two counts, Lelieve on one, of trafficking in cocaine. Fleurimond and Lelieve have separately appealed their convictions and sentences. We now address the arguments made by Lelieve, each of which we reject as a basis for reversal.

First, we cannot agree that Le-lieve is entitled to a reversal because his request for new private counsel was denied. While we agree that a “criminal defendant has the right to select his own private counsel,” that right does not operate for the purposes of delaying or “otherwise subverting] judicial proceedings.” Fratcher v. State, 842 So.2d 1044, 1046 (Fla. 4th DCA 2003); see Holley v. State, 484 So.2d 634, 636 (Fla. 1st DCA 1986) (stating that “[a] defendant’s right to choose his own attorney is not absolute and cannot be invoked in bad faith, for the sake of arbitrary delay or to otherwise subvert judicial proceedings”). In this case, the trial court correctly recognized Lelieve’s request for new counsel, following on the heels of the denial of his motion for a continuance (both of which were predicated, in significant part, on the same facts), was made only for the purpose of delaying the trial. Under the circumstances, the motion was properly denied. See United States v. Silva, 611 F.2d 78, 79 (5th Cir.1980) (holding that the trial court did not abuse its discretion when denying a defendant’s oral motion for substitution of counsel the day before trial because the “freedom to have counsel of one’s own choosing may not be used for the purposes of delay”); Hurtado v. State, 760 So.2d 279, 280 (Fla. 4th DCA 2000) (confirming that a trial court has the discretion to consider the public’s interest in the fair and orderly administration of justice in denying a defendant’s request for a different attorney).

Second, while we agree that Detective Belfort’s statement that the police were watching a house “that we knew to be selling narcotics” was improper, we do not agree that the comment mandated a mistrial below or reversal of Lelieve’s conviction here. In Lowder v. State, 589 So.2d 933, 935 (Fla. 3d DCA 1991), and Hill v. State, 980 So.2d 1195 (Fla. 3d DCA 2008), this court held that testimony that impugns the reputation of a place is impermissible because it proves nothing material and is prejudicial. However, as explained in Goodwin v. State, 751 So.2d 537, 541 (Fla.1999), error in admitting such evidence is subject to the DiGuilio harmless error test which “places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” See Hill, 980 So.2d at 1199 (“The final question is whether the errors are harmless beyond a reasonable doubt.”).

Thus, “the mere identification of a location as a high-crime area does not support a finding of undue prejudice and a per se reversal in all cases.” Lubin v. State, 754 So.2d 141, 143 (Fla. 4th DCA 2000) (quoting Wheeler v. State, 690 So.2d 1369, 1370 (Fla. 4th DCA 1997)). Rather, a determination of whether undue prejudice exists, and whether reversible error has been demonstrated, depends on the facts of each case in which such a comment has been made:

Although comments that the defendant was arrested in a high-crime area are often prejudicial and constitute reversible error, Sherrod v. State, 582 So.2d 814 (Fla. 4th DCA 1991), the supreme court has held that such comments do not per se warrant reversal. Gillion v. State, 573 So.2d 810 (Fla.1991). Instead, reviewing courts must consider whether prejudice exists based on the facts of each case. Id. at 812.

Watson v. State, 672 So.2d 71, 72 (Fla. 4th DCA 1996); see also Lubin, 754 So.2d at 143 (concluding that the existence of undue prejudice stemming from testimony regarding a high crime area or other drug dealing activity “depends on the facts of each case”).

As the Fifth District Court of Appeal observed in Johnson v. State, 670 So.2d 1121, 1123 (Fla. 5th DCA 1996), reversible error most commonly is found in cases where such references are made a feature of the trial or are offered solely to establish bad character or propensity, rather than to explain a chain of events observed. They also have been viewed as less harmful where the defendant denies being present for the transaction:

The admission of [high-crime or drug area] evidence does not constitute per se reversible error, however. Rather, the question of whether a statement that a transaction took place in a “high drug area” is unduly prejudicial to a defendant depends on the facts and circumstances associated with each case. Black v. State, 578 So.2d 1102 (Fla. 1991); Gillion v. State, 573 So.2d 810 (Fla.1991); Jefferson v. State, 560 So.2d 1374 (Fla. 5th DCA), review denied, 574 So.2d 141 (Fla.1990).... Courts also consider whether the testimony is being offered to establish a chain of events or whether it is being offered solely to establish bad character or propensity. Dorsey v. State, 639 So.2d 158 (Fla. 1st DCA 1994). Such references are also considered by some courts to be less harmful in those cases in which the defendant denies being present during the transaction, since under these circumstances the defendant is less likely to be convicted through “guilt by association.” See Davis v. State, 562 So.2d 443 (Fla. 2d DCA 1990). Where an “isolated characterization of a neighborhood was a brief comment and was not repeated in the remaining testimony or mentioned in closing,” the error has been considered harmless and deemed insufficient to provide a basis for reversal on appeal. Davis, 562 So.2d at 444.

Johnson, 670 So.2d at 1123.

On this analysis, Johnson held that a prosecutor’s passing comment in opening statement that a drug transaction occurred in “problem drug area” did not require a mistrial because the comment was merely setting up the chain of events and did not become a feature of the trial. Id. The Fourth District Court of Appeal in Watson similarly held that a police officer’s single comment in a “buy-bust” prosecution that “ ‘undercover officers will go out and attempt to make purchases of narcotics in narcotics areas,’ ” did not constitute reversible error because “the officer’s comments did not unduly prejudice the jury since they amounted to mere background information and not an attempt to impugn the area’s reputation.” Watson, 672 So.2d at 72.

Here, Detective Belfort made a single isolated comment that the house the surveillance team was watching was known for selling drugs. The comment was made in the context of, and to explain, the chain of events, that is, what the team was doing at that particular location. No further mention was made of the reason for the surveillance by any of the other officers who testified at trial, nor was it mentioned in closing argument. Moreover, this testimony came after the jury had been told, without objection, in opening statement that this house was being watched for drug-dealing activity and after Detective Gayle had testified in detail as to the surveillance of this house and three drug transactions that she observed. On this record, undue prejudice mandating reversal stemming from this single comment has not been demonstrated.

We also note that Lelieve’s defense was that he was not the person identified by Detective Gayle as the individual who took part in the third drug transaction at the drug-house. In fact, Lelieve took the stand in his own defense and testified that he was in the neighborhood to pick up someone at another home; that neither he nor anyone else get out of the vehicle; that he did not approach the drug-house; and that he did not participate in any drug transaction. As noted in Johnson, some courts view comments about drug areas to be less harmful where the defendant denies being present at all, since under these circumstances the defendant is less likely to be convicted through “guilt by association.” Johnson, 670 So.2d at 1123 (citing Davis v. State, 562 So.2d 443 (Fla. 2d DCA 1990)). In Clark v. State, 924 So.2d 922, 924 (Fla. 3d DCA 2006), for example, this Court concluded that “repeated reference to the location where [the defendant] was arrested as a place known for narcotics activity” was not so prejudicial as to mandate a mistrial because the issue was identification of the defendant as the individual involved in the drug sale, not whether the crime was committed.

Considering the evidence presented, the arguments made, and the defenses asserted in this case as to defendant Lelieve, we conclude that there is no reasonable possibility that the detective’s comment affected the verdict.

Finally, we find no abuse of discretion in the trial court’s denial of Lelieve’s motion for mistrial based on two comments made during the State’s closing argument. See Smith v. State, 818 So.2d 707, 710 (Fla. 5th DCA 2002) (confirming denial of a motion for mistrial is reviewed for an abuse of discretion). The first improper argument Lelieve points to was the prosecutor’s wholly unsupported statement that the drug-house at issue was located close to a school. Only Fleurimond, not Lelieve, had been charged with trafficking within 1000 feet of a school and Fleurimond alone objected to this comment. Under the circumstances we do not believe that the comment had any effect on the jury’s consideration of the charge brought against Lelieve.

The second comment Lelieve points to is the prosecutor’s reference to the community. While calls upon the “conscience of the community” made during closing argument are inappropriate, they do not in all cases mandate a mistrial. As the Florida Supreme Court in Goodwin stated, “a motion for mistrial ‘should be granted only when it is necessary to ensure that the defendant receives a fair trial.’ ” Goodwin, 751 So.2d at 547 (quoting Cole v. State, 701 So.2d 845, 853 (Fla. 1997)).

In this case, both Fleurimond and Le-lieve asserted a “CSI” defense during closing. They both claimed that the detectives’ testimony of the drug transactions they observed was uncorroborated by photographs, videotapes, fingerprints, or other physical evidence. In rebuttal, the prosecutor pointed out that Lelieve had argued that it was unfair of the State not to provide a videotape of the transactions. The prosecutor then stated “[wjell, how fail- is it to Miami-Dade County that there’s people out there, these two individuals.” However, before the prosecutor could finish this sentence, Lelieve objected, and the trial court ordered the prosecutor to wrap up the State’s closing argument. No further argument in this vein was made.

While a call on the community’s conscience would have been impermissible, it was interrupted by the objection. Under the circumstances, we cannot say that either this comment or that regarding the school, whether considered alone or in combination was so prejudicial as to vitiate the entire trial, materially contribute to Lelieve’s conviction, or cause the jury to reach a more severe verdict than it otherwise would have reached. See Lewis v. State, 780 So.2d 125, 131 (Fla. 3d DCA 2001) (stating that comments made during closing should be reviewed to determine whether they (1) deprive the appellant of a fair trial; (2) materially contribute to a conviction; (3) are so harmful or fundamentally tainted as to require a new trial; (4) are so inflammatory that it might have influenced the jury to reach a more severe verdict than that which they would have reached otherwise); see also Smith, 818 So.2d at 710-11 (observing that the abuse of discretion standard applied to denials of motions for mistrial requires determining whether an isolated and limited comment is so prejudicial that it vitiates the entire trial); Otero v. State, 754 So.2d 765, 770 (Fla. 3d DCA 2000) (concluding that a “conscience of the community” argument made “at the very end of the state’s rebuttal argument,” although improper, was harmless error given “the victim’s unwavering positive identification of [the defendant]”). Reversal on this claim also is not warranted.

Accordingly, the conviction and sentence at issue are affirmed.

      . Since Lelieve was not asking for new court-appointed counsel, but asking instead for permission to hire new private counsel, the court misspoke in characterizing its questioning as a Nelson inquiry. "A Nelson inquiry is appropriate when an indigent defendant attempts to discharge current, and obtain new, court-appointed counsel prior to trial due to ineffectiveness.” Branch v. State, 685 So.2d 1250, 1252 (Fla.1996); Foster v. State, 704 So.2d 169, 172 (Fla. 4th DCA 1997).

      . All three opening statements comprised a total of nine transcript pages.

      . Detective Gayle testified that after officers entered the residence, a number of items, including scales, chemical agents, staples, sta-piers, baggies, marijuana, and cocaine were brought to her by the officers who went into the house. ,

      . State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).


author: WELLS, Judge.

text:
    Charles EATO, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D08-1335.
    District Court of Appeal of Florida, Third District.
    April 15, 2009.
    Rehearing Denied May 13, 2009.
    Charles Eato, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for respondent.
    Before GERSTEN, C.J., and WELLS and SUAREZ, JJ.
   WELLS, Judge.

Charles Eato appeals from an order denying his pro se motion to disqualify Judges Jacqueline Hogan Scola and Peter R. Lopez in case numbers F03-2288A and F03-2289A. We treat the instant appeal as a petition for writ of prohibition, see Madura v. Turosienski, 901 So.2d 396, 397 (Fla. 2d DCA 2005) (treating the appeal from an order denying a motion to disqualify the trial judge as a petition for writ of prohibition), which we deny finding no abuse of discretion. See King v. State, 840 So.2d 1047,1049 (Fla.2003) (stating that an order denying a motion to disqualify is reviewed for an abuse of discretion); Fla. R. Jud. Admin. 2.330(e) (requiring a motion to disqualify be filed “within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion”).

      . Eato was permitted to represent himself in this case following a Faretta hearing. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


text:
    Walter E. CURRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-14.
    District Court of Appeal of Florida, Third District.
    April 15, 2009.
    Walter E. Curry, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Walter E. Curry appeals from the trial court’s order denying his petition for writ of habeas corpus. We affirm.

Curry was convicted and sentenced in August 2008. He filed a timely appeal from his judgment and sentence. In December 2008, while his direct appeal was still pending, Curry filed a petition in the trial court for writ of habeas corpus, in which he made arguments going to the merits of the underlying conviction. The trial court correctly noted that Curry’s motion was premature and that the trial court was without jurisdiction to rule on the issues while the appeal was pending. The trial court nevertheless denied the motion without making clear that the denial was without prejudice, and notified the defendant of his right to appeal the order. Curry appealed.

While it is clear that the trial court had no jurisdiction to render a ruling on the post-conviction petition while the judgment and sentence were pending on appeal in this Court, it is also clear that the trial court intended that the ruling be without prejudice to Curry to timely pursue his post-conviction remedies at the conclusion of his direct appeal. See Marshall v. State, 481 So.2d 973 (Fla. 2d DCA 1986). We therefore affirm the order denying relief, as modified.

Affirmed.


text:
    Jerome Carlington LINDO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-425.
    District Court of Appeal of Florida, Third District.
    April 15, 2009.
    Jerome Carlington Lindo, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and WELLS and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Anche v. State, 993 So.2d 568 (Fla. 3d DCA 2008).


text:
    Alonzie WIGGINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-421.
    District Court of Appeal of Florida, Third District.
    April 15, 2009.
    Alonzie Wiggins, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   SUAREZ, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. RApp. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Cedrick HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4600.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, and Cedrick Henderson, Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s right to raise his claim of ineffective assistance of trial counsel in a timely motion for post conviction relief filed in the circuit court in compliance with Florida Rule of Criminal Procedure 3.850.

FARMER, MAY and DAMOORGIAN, JJ., concur.


text:
    Noah B. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1527.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Noah B. Smith, Doral, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Noah Smith, pro se, appeals the denial of his rule 3.170(i) motion to withdraw his plea as involuntary. He alleges that counsel told him that if he entered an open plea, the court would reinstate his probation. The plea colloquy conclusively refutes his allegation. During the plea colloquy, Smith confirmed that by entering the plea, he did not know what his sentence would be. He also confirmed that no one had promised him anything or represented anything to him to get him to enter the plea. The court advised Smith as to the maximum and minimum sentences, and one of the state attorneys requested that the court impose the bottom of the guidelines sentence. When given the opportunity to address the court before it pronounced his sentence, Smith did not advise the court that counsel informed him that he would receive a reinstatement of his probation and be released from custody. Accordingly, the trial court did not err in denying the motion to withdraw without holding an evidentiary hearing. See Alfred v. State, 998 So.2d 1197 (Fla. 4th DCA 2009).

Affirmed.

WARNER, HAZOURI, JJ., and SHAHOOD, GEORGE A., Senior Judge, concur.


text:
    Gregory FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-215.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Gregory Fowler, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Wainwright v. State, 983 So.2d 635 (Fla. 4th DCA), rev. denied, 996 So.2d 214 (Fla.2008); Dwyer v. State, 981 So.2d 606 (Fla. 4th DCA 2008); see also Chandler v. State, 1 So.3d 284 (Fla. 2d DCA 2009) (recognizing that Ey v. State, 982 So.2d 618, 624 (Fla.2008), superseded the second district’s cases to the contrary).

POLEN, STEVENSON and CIKLIN, JJ., concur.


text:
    Marilyn BLOCH, Appellant, v. Charles WENDER, Appellee.
    No. 4D09-244.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Marilyn Bloch, Delray Beach, pro se.
    Charles Wender, Boca Raton, for appel-lee.
   PER CURIAM.

The court has reviewed appellant’s initial brief and finds that no preliminary basis for reversal has been demonstrated. Therefore, we summarily affirm pursuant to Florida Rule of Appellate Procedure 9.315(a).

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    Hanna MACOOL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-341.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2009.
    Hanna Macool, Monticello, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Hanna Macool appeals the trial court’s order summarily denying his motion for additional jail time credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Macool filed a facially sufficient claim for jail credit under rule 3.800 by providing the dates for which he is seeking credit, the date of his sentence, and alleging that the sentencing county’s jail record would show that he is entitled to the credit. Swanson v. State, 825 So.2d 507, 507 (Fla. 1st DCA 2002). The trial court denied Macool’s claim for additional credit, but failed to attach any record refuting his claim.

An order denying a facially sufficient rule 3.800(a) motion should include not only “valid reasons for the denial by the trial court, but also attachments of portions of the record sufficient to support the denial. The rule places on the trial court the obligation to attach sufficient portions of the record to refute the defendant’s claim.” Brown v. State, 816 So.2d 1142, 1143 (Fla. 5th DCA 2002). Accordingly, we remand this matter to the trial court to support its denial with record attachments or to grant relief. Should the court conclude that the motion cannot be decided on the face of the record, it should deny the motion without prejudice so that Macool may file a rule 3.850 motion, if one can be timely filed.

REVERSED and REMANDED FOR FURTHER PROCEEDINGS.

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


text:
    Demetris ENGLISH, Appellant, v STATE of Florida, Appellee.
    No. 5D09-419.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2009.
    Demetris English, Jasper, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Demetris English appeals the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court correctly dismissed the motion because it failed to include the required oath, see Anderson v. State, 627 So.2d 1170 (Fla.1993), but failed to allow English at least one opportunity to amend the pleading. Under most circumstances, this failure to allow an opportunity to amend would constitute a reversible abuse of discretion. Spera v. State, 971 So.2d 754, 755 (Fla.2007). However, English’s own pleadings demonstrate the futility of amendment. English entered a plea and was sentenced on October 5, 2006. Thus, his judgment and sentence necessarily were final for rule 3.850 purposes on November 4, 2006. Because English did not file his motion until December 15, 2008, the trial court properly dismissed the motion without leave to amend.

AFFIRMED.

SAWAYA, EVANDER and COHEN, JJ., concur.

      . The certificate of service on the motion for postconviction relief is dated November 13, 2008. Even if that earlier date were utilized, the motion was untimely.


text:
    Coy W. BELLAMY, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D07-2766.
    District Court of Appeal of Florida, First District.
    April 20, 2009.
    Coy W. Bellamy, Pro Se.
    Bill McCollum, Attorney General, and Marcus O. Graper, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Coy Bellamy appeals the denial of his petition for writ of mandamus. Bellamy contends that the trial court should have issued an alternative writ of mandamus requiring the Department of Corrections to show cause why the writ should not be issued. We agree and reverse with instructions to the trial court to issue an order to show cause.

Bellamy alleged that his legal documents were lost or misplaced by the Department and that he was not given the opportunity to verify that all of his inventoried property was returned to him before signing a receipt for his items. Because Bellamy’s petition for writ of mandamus was facially sufficient, the decision of the trial court is reversed with instructions to issue an alternative writ of mandamus requiring the Department to show cause why the writ should not be issued.

Reversed.

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.


text:
    Horace WILCHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4976.
    District Court of Appeal of Florida, Fourth District.
    April 22, 2009.
    Horace Wilcher, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Horace Wilcher (defendant) appeals the denial of his rule 3.800(a) motion to correct illegal sentence, claiming his habitual violent felony offender sentence was illegal and the habitual designation should be stricken from the records because he received no notice of the state’s intent to habitualize him prior to his sentencing hearing.

We disagree with the trial court’s conclusion that this issue was addressed when this court affirmed defendant’s adjudication as a HVFO on direct appeal, or that his previous rule 3.800(a) motion raised similar grounds. Nothing was attached to the order of denial showing that this issue was raised on direct appeal or in the prior rule 3.800(a) motion, and this court’s records indicate it was not.

However, such a claim is not cognizable in a rule 3.800(a) motion, see, e.g., Hollis v. State, 763 So.2d 1155 (Fla. 4th DCA 2000), and defendant is out of time to file a rule 3.850 motion.

Affirmed.

POLEN, TAYLOR and HAZOURI, JJ., concur.