text:
    Yancy C. LIGHTNER, Appellant, v. STATE of Florida, Appellee.
    No. 3D10-579.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.

      Yancy C. Lightner, in proper person.
    Pamela Jo Bondi, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SHEPHERD and EMAS, JJ.
   EMAS, J.

Appellant, Yancy C. Lightner, appeals an order denying his motion for postcon-viction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm.

I. BACKGROUND

Lightner was arrested and charged with three counts of armed robbery with a firearm. He was tried by a jury and convicted as charged. The trial court imposed a life sentence on each count. Lightner’s convictions and sentences were affirmed on appeal. Lightner v. State, 948 So.2d 768 (Fla. 3d DCA 2007). Lightner filed a timely motion for postconviction relief, raising several claims, including a claim that his trial counsel provided ineffective assistance by failing to properly investí-gate, interview and present, at trial, two exculpatory witnesses. The trial court held an evidentiary hearing on October 5, 2007, and thereafter denied Lightner’s motion.

II. EVIDENTIARY HEARING

The record below, including the evidence elicited at the evidentiary hearing on this claim, establishes the following:

The crimes occurred on October 28, 2000, during which three different victims were robbed at gunpoint. Lightner initially was represented by the public defender’s office. In October 2001, the public defender’s office withdrew and the trial court appointed Mr. Fernandez to represent Lightner. Mr. Fernandez has been an attorney for more than thirty years. Mr. Fernandez met with Lightner and Lightner told Mr. Fernandez that he (Lightner) was in Key West at the time of the offense, and that he had two alibi witnesses who would verify this: Light-ner’s girlfriend (Ms. Walker) and his girlfriend’s mother (Ms. Peoples). Based upon this information, Mr. Fernandez pursued this alibi defense for more than a year during the pretrial stages of the case. Mr. Fernandez experienced great difficulty contacting Ms. Walker; he left messages at one of the phone numbers given to him by Lightner, but never received a return call. The other phone number provided by Lightner was disconnected. Mr. Fernandez contacted Lightner and followed up with several letters to Lightner, advising Lightner of the relative lack of success in pursuing these witnesses. Mr. Fernandez continued his investigation of Lightner’s alibi defense based upon Lightner’s avowal that he was not even in Miami-Dade County at the time the crimes were committed.

At some point, Mr. Fernandez finally was able to reach both Ms. Walker and Ms. Peoples; however, it soon became apparent that neither Ms. Walker nor Ms. Peoples could verify Lightner’s hoped-for alibi. The pursuit of an alibi defense came to an abrupt end with the September 20, 2002, deposition of Ms. Peoples. During that deposition, Ms. Peoples testified that she received a collect call from Lightner (who was in custody at the time) and that Lightner had asked her to say that he was at her house in Key West at the time in question. Ms. Peoples acknowledged that this was not true and that she did not know where Lightner was at the time of the crimes.

When Mr. Fernandez advised Lightner of Ms. Peoples’ statements, Lightner abandoned the alibi defense. His new defense, he told Mr. Fernandez, was that he was at the scene prior to the crimes, but he had left before any robbery occurred. Light-ner told Mr. Fernandez he had two other witnesses who would verify this: Mr. Tucker and Mr. Wallace.

Mr. Fernandez then began investigating this new defense and spoke with Mr. Tucker and Mr. Wallace. However, Mr. Fernandez determined that Mr. Wallace would not be helpful to the defense. Mr. Wallace could not provide any details about what happened that night, making his testimony less than credible. Further, Mr. Wallace was making himself unavailable and Mr. Fernandez was unable to get Mr. Wallace to agree to testify. In addition, Mr. Wallace was a minor, and Mr. Fernandez needed the assistance of Mr. Wallace’s mother to bring him in. No such assistance was forthcoming.

Mr. Fernandez also pursued Mr. Tucker as a witness for this new defense. Mr. Fernandez did make contact, and spoke with Mr. Tucker. Mr. Tucker was eventually deposed by the State, and Mr. Fernandez determined that he did not believe Mr. Tucker was telling the truth. Mr. Fernandez believed he would be suborning perjury by calling Mr. Tucker as a witness. Mr. Fernandez sent Lightner a letter advising him that he did not intend to call Mr. Wallace or Mr. Tucker as witnesses at trial. Lightner received the letter and acknowledged that he did not disagree with Mr. Fernandez’s decision.

Soon thereafter, Mr. Fernandez withdrew from the case, citing “irreconcilable differences.” The evidence reveals that Mr. Fernandez told the trial court that his specific reason for withdrawal was that his client had wanted him to present testimony of witnesses whom Mr. Fernandez believed would be perjuring themselves.

In March of 2003 (five months before trial), Mr. Santos was appointed to represent Lightner. Mr. Santos has been an attorney for nearly thirty years, practicing primarily criminal defense. Mr. Santos and Mr. Fernandez have known each other for many years, and each covers hearings for the other when they have scheduling conflicts. In fact, Mr. Santos had had contact with Lightner even before he formally began representing him, and had met with Lightner a few times.

Mr. Santos and Mr. Fernandez met and discussed at length the history of the case; the abandoned alibi defense (including the testimony of Ms. Peoples and the difficulty in contacting Ms. Wallace); the second defense strategy; the second set of defense witnesses (Mr. Wallace and Mr. Tucker); and what those witnesses would say if called at trial.- Mr. Fernandez told Mr. Santos that he had spoken with Mr. Wallace and Mr. Tucker (and that Mr. Tucker’s deposition had been taken and transcribed). Mr. Fernandez told Mr. Santos the conclusions he reached, following his investigation and Mr. Tucker’s deposition, regarding whether to call these witnesses at trial. Mr. Santos, in reliance upon the investigation and information provided by Mr. Fernandez, did not call Mr. Wallace or Mr. Tucker to testify at trial'.

According to Mr. Santos, Lightner was very satisfied with the defense of the case and with Mr. Santos’ performance during the trial itself, including the decision not to present any defense witnesses. Lightner’s state of satisfaction changed only after the jury returned its verdicts.

III. DISCUSSION

Lightner’s assertion, reduced to its essence, is that Mr. Santos’ performance was deficient because he failed to conduct his own independent investigation of the two witnesses (Mr. Wallace and Mr. Tucker) and instead relied upon the investigation conducted by previous counsel. We disagree.

Any analysis of a claim of actual ineffective assistance of trial counsel necessarily begins with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claim under Strickland requires the defendant to establish two prongs: constitutionally deficient performance and actual prejudice. As the Strickland Court elaborated:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052.

In assessing the deficient performance prong, the relevant question is: Did counsel’s performance fall below an objective standard of reasonableness, when measured under prevailing professional norms? Id. at 688, 104 S.Ct. 2052.

In assessing the actual prejudice prong, the relevant question to ask: But for counsel’s deficient performance, is there a reasonable probability, of a different result? Id. at 694, 104 S.Ct. 2052.

A. Strickland’s guiding principles

Strickland provides several guiding principles when determining whether a defendant can satisfy the deficient performance and actual prejudice prongs:

1. The defendant has the burden of establishing both prongs. If the defendant fails to establish one prong, the court need not analyze the other prong and the defendant’s claim must fail. Id. at 687, 104 S.Ct. 2052.
2. “Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052.
8. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052.
4. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id.
5. “Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 691, 104 S.Ct. 2052.

B. Reasonable investigation

In determining whether counsel’s underlying investigation is reasonable under Strickland, the court should consider several factors, including:

1. The nature, scope and extent of counsel’s investigation. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987).
2. The amount of time and resources available to conduct or pursue the investigation. Thomas v. Gilmore, 144 F.3d 513, 515 (7th Cir.1998) (“A reasonable investigation is not ... the investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources but also with the inestimable benefit of hindsight, would conduct.”); Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir.1995) (“That other witnesses could have been called or other testimony elicited usually proves at most the wholly unremarkable fact that with the luxury of time and the opportunity to focus resources on specific parts of a made record, post-conviction counsel will inevitably identify shortcomings in the performance of prior counsel.”)
3. The defendant’s own statements and actions, and the extent of defendant’s cooperation with counsel. Strickland, 466 U.S. at 691, 104 S.Ct. 2052.
4. The reasons for limiting or abandoning a particular investigation or defense. Rompilla v. Beard, 545 U.S. 374, 383, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (“[T]he duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.”).
5. Whether counsel considered alternatives before making the decision at issue. Occhicone v. State, 768 So.2d 1037 (Fla.2000).
6. Whether the defendant was informed about and agreed with counsel’s decisions or strategy. Stein v. State, 995 So.2d 329, 337 (Fla.2008) (“[I]t is axiomatic that if a defendant consents to defense counsel’s trial strategy after it had been explained to him, it will be difficult to establish a claim for ineffective assistance of counsel,” (citing Gamble v. State, 877 So.2d 706, 714 (Fla.2004))).

Applying these factors to the instant case, we. determine that the trial court correctly concluded that Mr. Fernandez’s investigation was reasonable. Mr. Fernandez represented Lightner for seventeen months. For most of that time, Lightner’s professed defense was an alibi. Mr. Fernandez based his actions and investigation on the information provided by Lightner. Mr. Fernandez spent considerable time, effort and resources following up on the information provided by his client, contacting the alibi witnesses, verifying their availability, willingness and usefulness. As it turned out, of course, Lightner provided his counsel with an initial defense that was wholly fictitious, forcing, counsel to expend precious time, energy and resources on this ill-fated strategy.

Lightner thereafter changed the nature of his defense, providing Mr. Fernandez with two new witnesses who would (Lightner claimed) testify that Lightner was present before the crime but left the scene before its commission. The trial court correctly determined that Mr. Fernandez’s investigation of this defense (and his pursuit of these newly-disclosed witnesses) was reasonable as well. Following up on the information provided by Light-ner, Mr. Fernandez determined that these witnesses were either unwilling to testify, would not provide helpful testimony, or would commit perjury. He made the decision not to call Mr. Wallace or Mr. Tucker as witnesses, and advised Lightner of this decision, a decision with which Lightner did not disagree. Ultimately, Mr. Fernandez’s. withdrawal from the case (and the appointment of new counsel) was a direct result of Lightner’s actions in providing witnesses whom Fernandez believed would provide perjured testimony if called to testify at trial.

Mr. Santos’ reliance upon that investigation was likewise reasonable. It would strain credulity to conclude that Mr. Fernandez’s withdrawal (following a reasonable investigation, the details of which he shared with successor counsel who he has known and worked with for several years), would automatically impose upon successor counsel an independent duty to conduct the entire investigation anew.

IV. CONCLUSION

Given the reasonable investigation by Mr. Fernandez, and the fact that Mr. Santos discussed the details of that investigation with him and determined that further investigation would not bear additional fruit, Mr. Santos’ actions in reliance on the completed investigation were reasonable under prevailing professional norms. As a result, the strategic decisions made by Mr. Santos (which Lightner had no disagreement with until the conclusion of the trial) are themselves presumptively reasonable and “virtually unchallengeable.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. Lightner can rebut this presumption of reasonableness only by establishing that no competent attorney would have made the same decision. White v. State, 729 So.2d 909, 912 (Fla.1999). This Lightner cannot do.

Affirmed.

      . We find the other issues raised by Lightner are without merit and warrant no further discussion.

      . Because Lightner could not meet his burden of establishing deficient performance, we do not address the prejudice prong of Strickland.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Angel Roberto GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-35.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.

      Angel Roberto Gonzalez, in proper person.
    Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
   SUAREZ, J.

Angel Roberto Gonzalez appeals from the trial court’s second denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. This denial arises out of an evidentiary hearing ordered by this Court after Gonzalez appealed from the first summary denial of his post-conviction motion, but that hearing and the order that followed failed to specifically address issues that this Court deemed significant enough to warrant an evidentiary hearing. Gonzalez v. State, 13 So.3d 1114, 1115 (Fla. 3d DCA 2009). As such, we must reverse and remand for the trial court to make those specific findings.

Gonzalez first argues that the trial court abused its discretion by not appointing counsel to represent him at the evidentiary hearing we ordered in Gonzalez. Gonzalez filed a motion for appointment of counsel in order to assist him at the evidentiary hearing. The trial court, however, failed to rule on Gonzalez’s motion for appointment of counsel. The Florida Supreme Court, in Graham v. State, 372 So.2d 1363 (Fla.1979), explains the factors that a trial court must consider when exercising discretion to appoint post-conviction counsel. The State’s suggestion of harmless error relies on cases where the trial court determined that the issues did not warrant appointment of counsel. Those cases, however, are those in which the trial court actually ruled on the motion. Here, the record does not show that the trial court actually addressed the motion and applied the Graham analysis to the defendant’s motion for appointment of counsel. This is important. The significance of our first remand for evidentiary hearing was based on the defendant’s claim that his trial counsel was ineffective because he failed to argue on motion for judgment of acquittal that Gonzalez was not armed when he committed the burglary. Any doubt about the need for appointed counsel to address this substantive claim should be resolved in the defendant’s favor. See Williams v. State, 472 So.2d 738, 740 (Fla.1985). Therefore, we reverse and remand this issue to the trial court with directions to address and consider the substance of Gonzalez’s motion for appointment of counsel for the post-conviction proceedings we ordered in Gonzalez. See also Martinez v. State, 24 So.3d 733 (Fla. 3d DCA 2009) (finding remand necessary because the trial court failed to consider defendant’s request for appointment of counsel at post-conviction hearing using the factors outlined in Graham).

Gonzalez next argues that the trial court erred by failing to address his post-conviction claim that his trial counsel was ineffective for failing to move for a judgment of acquittal on the ground that the evidence was legally insufficient to support the proposition that the defendant was armed during the burglary. In this Court’s Gonzalez opinion, we remanded for a hearing to address the substance of Gonzalez’s argument that his trial counsel’s motion for judgment of acquittal was boilerplate. At the evidentiary hearing, the trial court did not reach the substance of Gonzalez’s post-conviction issue, and the point of this Court’s opinion that it should have addressed the substance of this claim:

The State’s trial court response cited the transcript pages containing the motion for judgment of acquittal, but the State did not attach it to the trial court response. For present purposes, we must accept the defendant’s characterization that counsel failed to address with specificity the claimed deficiency in proof of the “armed” portion of the armed burglary charge.... The Florida Supreme Court has said that a boilerplate motion for judgment of acquittal is legally insufficient. Woods v. State, 733 So.2d 980, 984-85 (Fla.1999) (“Florida Rule of Criminal Procedure 3.380 requires that a motion for judgment of acquittal ‘fully set forth the grounds on which it is based.’ ”). It follows that the defendant has made “a facially sufficient claim for postconviction relief,” Boykin v. State, 725 So.2d 1203, 1203 (Fla. 2d DCA 1999), and we must remand for further proceedings.

Gonzalez v. State, 13 So.3d at 1115. An examination of the transcript shows that trial counsel made a very general and unspecific motion for judgment of acquittal and did not argue the “armed” portion of the burglary charge. We again remand this issue for further proceedings.

Last, the defendant asserts that he was prejudiced by the mistaken introduction into the jury room of a BOLO flyer previously ruled to be inadmissible Williams rule evidence. We agree with the trial court that this was harmless error, as it was duplicative of other admissible evidence that the jury had before it, and we affirm on this point.

We reverse the order on appeal and remand for further proceedings as to Gonzalez’s points 1 and 2, with instructions to use the Graham factors.to evaluate the defendant’s motion for appointment of counsel in order assist him with his second point on appeal, and to address the. substance of the defendant’s facially sufficient claim of ineffective assistance of counsel on the motion for judgment of acquittal for “armed” burglary.

Affirmed in part, reversed and remanded in part.

      . The Graham Court set out four factors to be considered by the trial judge in deciding whether to appoint counsel in collateral proceedings for post-conviction relief. “The adversary nature of the proceeding, its complexity, the need for an evidentiary hearing, or the need for substantial legal research are all important elements which may require the appointment of counsel.” 372 So.2d at 1366. The determination that an evidentiary hearing is necessary in itself implies that three of the four elements are involved. Evidentiary hearings are adversarial in nature, and the rules of evidence and procedure are mystifyingly complex to all but the most sophisticated non-lawyers.

      . See also Woods v. State, 733 So.2d 980, 984-85 (Fla.1999) (holding that a boilerplate motion for judgment of acquittal is insufficient). Resolving this issue could have an impact on the defendant’s sentence.

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


author: SHEPHERD, J.

text:
    Jerry CHARLES, Appellant/Cross-Appellee, v. The STATE of Florida, Appellee/Cross-Appellant.
    No. 3D08-198.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.
    Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, Tampa, for appellant/cross-appellee.
    Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee/cross-appellant.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

Appellant, Jerry Charles, appeals the judgment and sentence imposed for attempted trafficking in cocaine, § 893.135(1)(b)1, Fla. Stat. (2007); § 777.04(1), Fla. Stat. (2007), and conspiracy to traffic in cocaine, § 893.135(5), Fla. Stat. (2007); § 777.011, Fla. Stat. (2007). We find no merit to Charles’ multiple challenges to his conviction. However, we reverse the increased sentence imposed on Charles at a sua sponte re-sentencing hearing, commenced by the trial judge on the ground the increased sentence violates the double jeopardy clause of article I, section 9, of the Florida Constitution. A brief recitation of the facts of the case is necessary to explain our decision.

On January 3, 2008, the trial judge orally pronounced a sentence on Charles of 110.55 months (9.2 years), including a three-year minimum mandatory term as required by statute, consistent with the lowest guidelines sentence appearing on the sentencing guidelines score sheet. See § 893.135(1)(b)1.a, Fla. Stat. (2007). However, the court wrote on the score sheet “[Defendant] found guilty at trial. Court sentences [Defendant] to lOy sp w/3y mm & $50,000 [mandatory] fine” (emphasis added).

Five days later, on January 8, 2008, the trial court sua sponte reconvened the sentencing hearing on the apparent belief he had misspoke. The court stated:

At one point I signed the paper that said 10 years in state prison. And at another point I read off of the guidelines 115[sic] something months, and I know the agreement was 10 years in state prison. So I have also made a defect in that regard.
So, I believe I need to bring Mr. Charles here and repronounce sentence.

The court then pronounced a sentence of ten years in state prison with a three-year minimum mandatory term, and also added the statutorily mandated fine to the sentence. In so doing, the trial court erred.

It appears from the transcript of the January 8th resentencing hearing, both defense counsel and the trial court believed the court was engaged in the performance of a ministerial act — the rectification of a “scribbler’s error” — when it re-pronounced the increased prison sentence and fine. The court was mistaken.

By “correcting” the January 3rd sentence, the trial court increased the original sentence from 9.2 years to ten years, and imposed a fine. Case law is clear that a fine is as much a part of a sentence as is incarceration. See Morganti v. State, 573 So.2d 820, 821 (Fla.1991) (stating that a lawful sentence can include several penalties, such as incarceration, probation, and a fine); Jones v. State, 590 So.2d 1061, 1062 (Fla. 4th DCA 1991) (stating that restitution is a part of a sentence). “Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). Although the rule may seem to reduce sentencing to “a game in which a wrong move by a judge [can] mean[ ] immunity for the prisoner,” id. at 1269 (Pariente, J., concurring) (quoting United States v. DiFrancesco, 449 U.S. 117, 135, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)), our high court has so ruled, expressly admonishing the State, in these circumstances, to pay “close attention to ensure that the oral pronouncement contains no ‘misstatements.’” Ashley, 850 So.2d at 1270 (Pariente, J., concurring).

Finally, we note the rule applies even if, as here, the original sentence was illegal or otherwise erroneous. See Gardner v. State, 30 So.3d 629, 632 (Fla. 2d DCA 2010) (“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. This is true even if the original sentence was illegal or otherwise erroneous and the correction conforms to applicable law or to the court’s and parties’ intentions at sentencing.”) (internal citation omitted); Figueroa v. State, 3 So.3d 428, 429 (Fla. 2d DCA 2009) (reversing a minimum mandatory sentence imposed during a proceeding held one day after the initial sentencing); Shepard v. State, 940 So.2d 545, 548 (Fla. 5th DCA 2006) (reversing a sentence imposed after the defendant was called back fifty minutes after the proceeding had ended).

For these reasons, we reverse the sentence and direct the trial court to reinstate the 110.55-month prison sentence, with a three-year minimum mandatory, and credit for time served. The trial court may not now impose a fine. The defendant need not be present for re-sentencing. See Butler v. State, 807 So.2d 88, 89 (Fla. 3d DCA 2001); Morales v. State, 795 So.2d 231 (Fla. 3d DCA 2001).

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

      . The crime date was March 14, 2007.


author: PER CURIAM.

text:
    Juliette ANTOINE, Appellant, v. Juan C. VIVES, Appellee.
    No. 3D10-2947.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.
    Rehearing Denied May 10, 2011.
    Juliette Antoine, in proper person.
    Ricardo R. Vives, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and EMAS, JJ.
   PER CURIAM.

Affirmed. See § 45.0315, Fla. , Stat. (2010) (providing statutory right of redemption provides holder of any subordinate interest with right to cure the mortgagor’s indebtedness and prevent a foreclosure sale at any time before the later of the filing of a certificate of sale, or time specified in the judgment of foreclosure); See also Saidi v. Wasko, 687 So.2d 10, 11 (Fla. 5th DCA 1997) (holding that the right of redemption is an estate in land and a protected equitable right of the mortgagor; it allows the mortgagor to reclaim her estate in foreclosed property after it has been forfeited by paying the amount of the debt, interest and costs. A mortgagor need not obtain permission of the trial court before exercising the right of redemption).


text:
    H.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and the Guardian Ad Litem Program, Appellees.
    No. 3D10-3003.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.

      Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.,
    Karla Perkins, Appellate Counsel for Department of Children and Family; Hillary Kambour, Appellate Counsel for Guardian Ad Litem Program.
    Before, SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See V.J. v. Dep’t of Children & Family Servs., 949 So.2d 1128 (Fla. 3d DCA 2007).


text:
    Miguel MALDONADO and Chris Keith, Esq., Petitioners, v. STATE of Florida, DEPARTMENT OF REVENUE, OFFICE OF CHILD SUPPORT ENFORCEMENT, ex rel. Sonia GUERRA, Respondent.
    No. 3D10-3385.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.
    Chris Keith, Boca Raton, for petitioners.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Tallahassee, Assistant Attorney General, for respondent.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Based on the respondent’s proper confession of error, we grant the petition for writ of certiorari and quash the Order to Appear and Show Cause as to both petitioners.

Certiorari granted; order quashed.


text:
    Keith CANTY, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-605.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.
    Keith Canty, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and EMAS, JJ.
   PER CURIAM.

Keith Canty appeals from the summary denial of his motion, pursuant to Florida Rule of Criminal Procedure 3.800(a), to correct illegal sentence (styled as a “Motion for Jail Time Credits”). On appeal from a summary denial of a Rule 3.800 motion, this Court must reverse unless the postconviction record conclusively shows that defendant is entitled to no relief. 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 a hearing or for the attachment of record excerpts conclusively showing that the appellant is entitled to no relief.

Reversed and remanded with instructions.


author: EVANDER, J.

text:
    Frank A. CIOLLI, Appellant, v. CITY OF PALM BAY, Appellee.
    No. 5D09-4582.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.

      Douglas D. Marks of Boyd & Marks, L.L.C., Melbourne, for Appellant.
    James D. Stokes, City Attorney and Andrew P. Lannon, Deputy City Attorney, Palm Bay, for Appellee.
   EVANDER, J.

Frank Ciolli appeals from the entry of a final summary judgment foreclosing a Code Enforcement Board lien against his property. Because there was a material disputed factual issue regarding whether the City of Palm Bay had given Ciolli proper notice of its Code Enforcement Board proceedings, we reverse.

On November 12, 2003, after a hearing, the City’s Code Enforcement Board issued an order finding that Ciolli’s property had not been maintained in accordance with Palm Bay’s City code. The order further recited that Ciolli was required to bring the property into compliance within 15 days — after which a fine of $250.00 would be imposed for each day the violation(s) continued.

Ciolli allegedly failed to cure the violations and on February 12, 2004, the City filed a certified copy of the Code Enforcement Board’s order in the public records in an attempt to create a lien in favor of the City pursuant to section 162.09, Florida Statutes (2003).

Approximately one year later, the City filed a complaint to foreclose on its claimed lien, alleging that Ciolli owed $10,475 as of January 21, 2005, plus prejudgment interest and attorney’s fees. Attached to the complaint was a certified copy of the order issued by the Code Enforcement Board.

Ciolli, a New York resident, was served a copy of the complaint in June 2005. Subsequently, Ciolli filed an answer and affirmative defenses. In his pleading, Ciolli alleged, inter alia, that he had not received proper notice of the Code Enforcement Board’s proceedings.

In December 2008, the City filed a motion for summary judgment. The motion was supported by an “Affidavit of Indebtedness” executed by the City Manager. In response to the City’s motion, Ciolli filed his own affidavit in which he asserted that he “was never served with proper notice of the City of Palm Bay Code Enforcement hearing and was continuously misled by [the City] as to the condition of the property in question and how [the City] would be handling this matter.”

In October 2009, the City filed an amended motion for summary judgment and a memorandum of law in support thereof. Attached to the memorandum was an unauthenticated copy of a return receipt from the United States Postal Service reflecting that an “article” addressed to Frank Ciolli had been delivered on October 28, 2003, to 7 Jessup Lane, West Hampton Beach, New York and signed for by Anita Ciolli.

In its memorandum, the City argued that the receipt “conclusively” demonstrated that Ciolli had been given proper notice of the November 12, 2003, Code Enforcement Board hearing.

The standard of review of an order granting summary judgment is de novo. Lederer v. Orlando Utils. Comm’n, 981 So.2d 521, 522 (Fla. 5th DCA 2008). The party moving for summary judgment has the burden of proving the absence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Id. Pursuant to section 162.06, Florida Statutes (2003), the City was required to provide Ciolli with written notice of the Code Enforcement Board hearing by hand-delivery or mail as provided in section 162.12.

In its lien foreclosure action, the City was required to show , that it had satisfied the statutory notice requirements. Little v. D’Aloia, 759 So.2d 17 (Fla. 2d DCA 2000). On appeal, Ciolli argues that a disputed issue of fact remains as to whether the City satisfied the notice requirements. We agree. The unauthenticated copy of the postal service receipt was woefully inadequate to rebut Ciolli’s affirmative defense and certainly did not “conclusively” establish that Ciolli received notice of the Code Enforcement Board proceedings. Indeed, the receipt does not reflect what “article” was mailed to Ciolli, whether the designated address was that of Ciolli and the nature of the relationship, if any, between Ciolli and Anita Ciolli. Furthermore, Florida Rule of Civil Procedure 1.510(c) provides that a party may rely upon “any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence” in support of a motion for summary judgment. An unauthenticated document attached to a memorandum of law does not fall within any of these permitted categories and does not constitute competent evidence. Romeo v. Romeo, 907 So.2d 1279 (Fla. 2d DCA 2005).

Alternatively, the City argues that Ciolli’s defenses are barred because Ciolli never appealed from the Code Enforcement Board order. We reject this argument as well. Not only did the City fail to present competent evidence that Ciolli had been provided proper notice of the November 12, 2003, hearing, it also failed to establish that Ciolli was timely provided with a copy of the Board’s ensuing order. The order’s certificate of service merely recites a conclusion that a copy of the order was “furnished by mail to Respondent and/or Respondent’s authorized counsel ...” No specific address was given in the certificate of service. While proof of mailing normally raises a rebuttable presumption that the mailed item was received, no such presumption arises when there is no evidence that the mailed item was sent to the correct address. See Star Lakes Estates Ass’n., Inc. v. Auerbach, 656 So.2d 271, 274 (Fla. 3d DCA 1995) (affidavit stating that notice was mailed to “the address listed in the Association’s records” was insufficient to create presumption that notice was received because affidavit did not list actual address to which notice was allegedly-mailed, thereby making it impossible to determine if notice was mailed to correct address). The Florida Supreme Court has opined that a due process violation likely occurs where an administrative order is entered but never actually provided to the litigants, and the 80-day period to file a timely appeal then passed. Millinger v. Broward County Mental Health Div. & Risk Mgmt., 672 So.2d 24, 27 (Fla.1996). Regardless, as previously noted, the City was required to show that it had complied with the statutory notice requirements.

REVERSED and REMANDED.

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

      . Specifically, the Code Enforcement Board found that there was "tall grass and weeds [and] an accumulation of trash and debris” on the property, and further that there had been a "failure to maintain every surface free of graffiti.”

      . Section 162.09(3) provides that a certified copy of a Code Enforcement Board order imposing a fine may be recorded in the public records "and thereafter shall constitute a lien against the land on which the violation exists. ...”

      .The record does not reflect the address at which Ciolli was served with a copy of the original complaint. However, early in the case, the City served a motion for default to Ciolli at an address in Elmont, New York.

      . Section 162.12 states in relevant part:
      (1) All notices required by this part shall be provided to the alleged violator by:
      (a) Certified mail, return receipt requested, provided if such notice is sent under this paragraph to the owner of the property in question at the address listed in the tax collector’s office for tax notices, and at any other address provided to the local government by such owner and is returned as unclaimed or refused, notice may be provided by posting ... and by first class mail directed to the addresses furnished to the local government with a properly executed proof of mailing or affidavit confirming the first class mailing....

      . Chapter 162 does not specifically provide that a copy of the enforcement order must be provided to the violator. However, as observed in City of Tampa v. Brown, 711 So.2d 1188, 1189 (Fla. 2d DCA 1998), "[i]t is necessary to fill the procedural gaps in this statute by the common-sense application of basic principles of due process."


text:
    Rodney Dwayne THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-398.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.
    Rodney D. Thomas, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Rodney Thomas appeals his convictions for burglary of a dwelling with the commission of an assault or battery therein, robbery with a weapon, aggravated fleeing and eluding, and grand theft. We affirm, finding no error in the trial court’s refusal to give the independent act jury instruction. See Boyd v. State, 912 So.2d 26, 27 (Fla. 4th DCA 2005). We do, however, remand for correction of a scrivener’s error as it relates to count 5. Thomas was convicted of petit theft of property greater than $100 but less than $800, a lesser included offense of grand theft. The trial court, obviously aware' of the conviction of the lesser included offense, sentenced Thomas to 153 days time served on the theft charge. The judgment and sentence incorrectly reflected a conviction of grand theft.

AFFIRMED; REMANDED for correction of scrivener’s error as to count 5.

PALMER, ORFINGER and COHEN, JJ., concur.


author: GRIFFIN, J.

text:
    Mark MIKULSKI, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-625.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Mark Mikulski [“Mikulski”] appeals the trial court’s denial of his 3.850 motion for post-conviction relief in which he asserted nine grounds for relief. Mikulski argues that the trial court erred by summarily denying grounds one, two, three, four, seven, and eight. He also argues that the trial court erred by denying grounds five and six after an evidentiary hearing. We find error only in the summary denial of the claims concerning an alleged conflict of interest based on the claim that Mikulski’s counsel also represented the State’s key witness, Cornelius, and a witness for the defense, Martinez. The record does not conclusively refute Mikulski’s claim that he received ineffective assistance of counsel. Indeed, it is unclear whether counsel personally represented these three men or whether it was the office of the Public Defender. Nor is it clear what the nature of the representation was or why or when it occurred. An evidentiary hearing will be required to determine whether there was an actual conflict, and we remand for that purpose. In all other respects, the appealed order is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA and PALMER, JJ., concur.


text:
    Edward W. MASLOW, Appellant, v. Julianne M. EDWARDS and Department of Revenue, Appellee.
    No. 5D10-655.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.

      Edward W. Maslow, Little Falls, pro se.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   REVISED OPINION

GRIFFIN, J.

Appellant, Edward Maslow [“Maslow”], pro se, appeals an order modifying his child support obligation and a second order establishing his child support arrearages, payable to Appellee, Julianne Edwards, the child’s mother. We find no error and affirm as to all issues Maslow raises. However, there does appear to be an error in the mathematical calculation used to determine the amount of child support.

At trial, Maslow introduced into evidence documentation showing that he was receiving veteran’s disability benefits of $440 per month for himself and an additional monthly benefit of $159 for the minor child who is the subject of the child support proceeding. According to the Florida Department of Revenue, veteran’s benefits for minor children are paid to the veteran directly.

At the close of the hearing, the trial court determined that Maslow’s monthly disability income was $440 per month. The trial court then calculated that Mas-low was obligated to pay 21% of child support, and this figure was found to be $157. The court then added this figure to the $159 per month that Maslow received directly for the child’s support to get a total of $316. It appears, however, that the amount received for the benefit of the child should be accounted for differently. In Wallace v. Dep’t of Revenue ex rel. Cutter, 774 So.2d 804 (Fla. 2d DCA 2000), the court explained:

[W]hen a parent is receiving social security disability due to the disability and, as a result, his or her children receive independent benefits, the total benefits received by or on behalf of that parent are attributed to the disabled parent as income in the child support guideline calculation. The dependent benefits are then credited toward the disabled parent’s obligation, that is, they are a payment of the obligation on behalf of the disabled parent. If the benefits are less than the support obligation, the disabled parent must pay the difference. If they are more, the benefits pay the obligation in full, but any excess inures to the benefit of the children.

Id. at 808.

Although this case involves disability benefits paid by the Veteran’s Administration, rather than benefits paid by Social Security, there does not appear to be any reason to treat the two situations differently. The $159 paid to Maslow for the benefit of his son should be included in Maslow’s income and the total family income figure. Accordingly, we affirm in part and reverse in part and remand for recalculation of child support and arrear-ages in a manner consistent with this opinion.

AFFIRMED in part; REVERSED in PART; and REMANDED.

ORFINGER and LAWSON, JJ., concur.

      . The components of this figure are: $94.92 for child support, plus $63 for daycare.

      . Unlike Wallace, in this case, Maslow is not automatically entitled to a credit in the amount of the disability benefit of the child because the benefit comes to Maslow, not to the child.


text:
    George Nelson BULA, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1474.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

George N. Bula appeals his convictions of lewd and lascivious molestation, lewd and lascivious conduct and showing obscene material to a minor. Bula contends, and the State concedes, that the lewd and lascivious conduct charge was, under the facts of this case, subsumed within the identical acts encompassed in the charge of lewd and lascivious molestation. We agree, and on remand, Bula’s conviction of lewd and lascivious conduct shall be vacated. In all other respects, we affirm Bula’s convictions and sentences.

AFFIRMED in part; REVERSED in part; and REMANDED FOR CORRECTION.

ORFINGER, TORPY and JACOBUS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Dereece Timika HOWELL, Appellee.
    No. 5D10-1516.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    Richard S. Rhodes, of Richard S. Rhodes, P.A., Orlando, for Appellee.
   PER CURIAM.

The State of Florida appeals an order of the trial court modifying the sentence imposed after Appellee, who was represented by private counsel, entered into a plea agreement. The plea agreement called for a sentence of forty-eight months’ probation, six months of which was to be spent in the Orange County Jail Work Release Program for the offenses of aggravated assault with a deadly weapon, resisting merchandise recovery and petit theft. As part of the agreement, the State entered a nolle prosequi on the aggravated battery with a deadly weapon charge.

A few weeks later, Appellee sent the trial court a pro se motion to modify her sentence, asking for a reduction to eighteen months of probation and ninety days of work release. Though not of record, apparently the trial judge communicated to defense counsel that he would entertain the motion if it were filed by counsel. Counsel filed the motion, and the trial court entered an order reducing the six months of work release to ninety days. The State appeals, seeking enforcement of the plea agreement and the benefit of its bargain. We agree that the trial court lacked the discretion to modify the sentence previously imposed pursuant to the plea agreement. State v. Swett, 772 So.2d 48 (Fla. 5th DCA 2000). We accordingly reverse and remand to the trial court with instructions to vacate the order of modification.

REVERSED and REMANDED.

GRIFFIN, EVANDER and JACOBUS, JJ., concur.


text:
    JUSTICE ADMINISTRATIVE COMMISSION, Petitioner, v. A. Kathleen McNEILLY, Esquire, Respondent.
    No. 5D11-83.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.
    Christian D. Lake, Assistant- General Counsel, The Justice Administrative Commission, Tallahassee, for Petitioner.
    A. Kathleen McNeilly of A. Kathleen McNeilly <& Associates, P.A., DeLand, for Respondent.
   EVANDER, J.

The Justice Administrative Commission (JAC) seeks certiorari review of an order requiring it to pay the attorney fees of a mother’s court-appointed private counsel in a termination of parental rights proceeding. The record reflects that counsel was appointed after the mother had executed a voluntary written surrender of her parental rights. Pursuant to section 39.807(1), Florida Statutes (2010), the mother was not entitled to publicly-funded counsel. Justice Admin. Conim’n v. Harp, 24 So.3d 779 (Fla. 5th DCA 2009); see also Justice Admin. Comm’n v. Goettel, 32 So.3d 786 (Fla. 2d DCA 2010). Because the mother was not entitled to appointed counsel, JAC was not obligated to pay counsel’s fees. § 29.007(2), Florida Statutes (2010); see also Goettel; Harp. We conclude that the trial court’s order departed from the essential requirements of law. See Goettel; Harp. We grant the petition for writ of certiorari and quash the order under review.

GRANT PETITION, ORDER QUASHED.

TORPY and LAWSON, JJ„ concur.

      . The mother never challenged the voluntariness of her surrender of parental rights.

      . Section 39.807 Right to counsel; guardian ad litem.
      (l)(a) At each stage of the proceeding under this part, the court shall advise the parent of the right to have counsel present. The court shall appoint counsel for indigent parents ....

      (l)(d) This subsection does not apply to any parent who has voluntarily executed a written surrender of the child and consent to the entry of a court order therefor.


text:
    Damien KING, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-604.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.
    Damien King, Daytona Beach, pro se..
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2006-CF-000042, in the Circuit Court in and for Citrus County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

PALMER, TORPY and LAWSON, JJ„ concur.


author: CASANUEVA, Chief Judge. WHATLEY, Judge,

text:
    Jason Lee HAYWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5198.
    District Court of Appeal of Florida, Second District.
    April 20, 2011.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

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

The State tried Jason Lee Hayward on a single count of felony driving under the influence for an offense allegedly committed in 2008. Mr. Hayward took the stand in his own defense and explained why he refused to take a breath alcohol test. The State argued, and the trial court agreed, that Mr. Hayward’s comments “opened the door” to impeachment with evidence of a prior unrelated conviction for driving under the influence. Because Mr. Hayward’s comments did not open the door and there was no legal basis to introduce prior crime evidence, we reverse Mr. Hayward’s judgment and sentence and remand for a new trial.

When Mr. Hayward took the stand in his own defense, his counsel asked him why he refused the arresting officer’s requests that he take a breath alcohol test. He testified, “I’ve heard from people, and I’ve seen breath tests go wrong. You could have three Mountain Dews and blow a 0.01. I’ve seen it happen before, and — .” The State objected to Mr. Hayward’s reference to Mountain Dews, and the trial court struck that from the record. Later, the State sought to impeach Mr. Hayward’s comments with evidence regarding his 1992 DUI conviction, where he allegedly did take a breath test and the results were used against him. The defense objected, arguing that Mr. Hayward’s comments did not “open the door” to prior crime testimony and that the potential for undue prejudice outweighed the evidence’s minimal probative value. The trial court allowed the questions over the defense’s objections, so the jury heard that Mr. Hayward was previously convicted for DUI.

Generally, evidence of unconnected crimes is inadmissible:

[I]it is generally harmful error “to admit evidence of other or collateral crimes independent of and unconnected with the crime for which the defendant is on trial.” Nickels v. State, 90 Fla. 659, 685, 106 So. 479, 488 (1925). As stated above,.the reason for this rule, establishing the harmfulness of the error in admitting a certain class of irrelevant evidence, is:
Evidence that the defendant has committed a similar crime, or one equally heinous, will frequently prompt a more ready belief by the jury that he might have committed the one with which he is charged, thereby predisposing the mind of the juror to believe the prisoner guilty.
Id. at 685, 106 So. at 488.

Straight v. State, 397 So.2d 903, 909 (Fla.1981).

The Florida Evidence Code does provide an exception to this rule so that certain prior convictions can be admitted as impeachment evidence. Section 90.610, Florida Statutes (2008), titled “Conviction of certain crimes as impeachment,” provides that a party may attack the credibility of a witness with evidence that the witness has been convicted of a crime punishable by a year or more in prison or a crime involving dishonesty or false statement. § 90.610(1). But the State cannot ask about the specifics of the convictions unless the defendant is untruthful about whether he has such prior convictions and how many of them there are. Livingston v. State, 682 So.2d 591, 592 (Fla. 2d.DCA 1996).

In this case, the State did not ask Mr. Hayward whether he had prior qualifying convictions or how many. Instead, the prosecutor went straight to the details of the 1992 DUI conviction, claiming that Mr. Hayward’s testimony “opened the door” to testimony regarding the breath alcohol. test associated with the 1992 conviction.

“Opening the door” is an evidentiary concept that permits the admission of otherwise inadmissible testimony in order to qualify, explain, or limit previously admitted testimony or evidence. Overton v. State, 801 So.2d 877, 900 (Fla.2001). The normally inadmissible evidence is allowed when fairness and the search for the truth require a fuller explication of evidence that otherwise would have been incomplete and misleading. Hudson v. State, 992 So.2d 96, 110 (Fla.2008). Thus, a party “opens the door” when it elicits misleading testimony or makes a factual assertion that the opposing party has a right to correct so that the jury will not be misled. Robertson [v. State], 829 So.2d [901,] 913 [(Fla.2002)]. For example, a defendant’s evidence of his good character may open the door to impeachment with evidence of the defendant’s bad character. Robertson, 829 So.2d at 912.

Austin v. State, 48 So.3d 1025, 1025 (Fla. 2d DCA 2010). In other words,

The concept of “opening the door” permits admission of inadmissible evidence for the purpose of qualifying, explaining or limiting testimony previously admitted. See Hudson v. State, 992 So.2d 96, 110 (Fla.2008), cert. denied, — U.S. — , 129 S.Ct. 1360, 173 L.Ed.2d 621 (2009). This concept is based on considerations of fairness where “redirect examination reveals the “whole story of á transaction only partly explained’ in cross examination.” Love v. State, 971 So.2d 280, 286 (Fla. 4th DCA 2008) (quoting Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997)). Sinclair v. State, 50 So.3d 1223, 1226 (Fla. 4th DCA 2011).

After the trial court’s ruling striking a portion of Mr. Hayward’s testimony regarding breath test results, what remained in response to his counsel’s inquiry asking why he refused the breath test was “I’ve heard from people, and I’ve seen breath tests go wrong.” Mr. Hayward’s testimony, at that point, did not “open the door” to questions regarding the details of his 1992 DUI conviction. He did not place the nature of his prior felony at issue. See, e.g., McCrae v. State, 395 So.2d 1145, 1152 (Fla.1980) (holding that prosecution was allowed to ask about details of defendant’s prior conviction because defendant’s testimony, without clarification through questions by the State, “could have deluded the jury into equating appellant’s conviction of assault with intent to commit murder with his previous misdemeanors”); Burst v. State, 836 So.2d 1107, 1109 (Fla. 3d DCA 2003) (holding that defendant opened the door to cross-examination about the nature of two prior convictions when he volunteered, during questioning by-his own counsel, that he had two prior convictions for possession and two prior convictions for grand theft but, in actuality, one of the possession convictions was for possession with intent to sell and one of the grand theft convictions was for grand theft auto). Essentially, Mr. Hayward’s testimony was that he did not trust breath testing machines. The statement was not misleading or incomplete, nor was it a small part of a story that required further explanation in consideration of fairness to both sides. He only provided his subjective state of mind, his opinion or his belief of the equipment’s unreliability.

Even had Mr. Hayward’s limited testimony “opened the door,” the potential for undue prejudice far exceeded the probative value of the testimony. See § 90.403, Fla. Stat. (2008) (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice”). The issue of Mr. Hayward’s refusal to take a breath test was minimally relevant at best. Informing the jury that Mr. Hayward had previously been convicted of the exact crime he was on trial for was extremely prejudicial. Consequently, the trial court also abused its discretion by failing to exclude the evidence on the basis that the potential for unfair prejudice outweighed its minimal probative value. See Straight, 397 So.2d at 909.

Finally, the State contends that even if the admission , of this testimony was error, it was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). However, the State cannot prove “that there is no reasonable possibility that the error contributed to the conviction.” Id. At trial, the State’s evidence consisted of testimony from the arresting officer and a video of limited evidentiary value from the officer’s dashboard camera. The jury’s verdict rested largely upon weighing the credibility of the officer and Mr. Hayward. The improperly admitted evidence of Mr. Hayward’s prior DUI conviction gave the State, through the officer’s testimony, an unfair advantage in that credibility contest.

For these reasons, we reverse Mr. Hayward’s conviction and sentence for driving under the influence and remand for a new trial.

SILBERMAN, J., Concurs.

WHATLEY, J., Dissents with opinion.

WHATLEY, Judge,

Dissenting.

I respectfully dissent. Hayward testified in his own defense as to why he refused a breath test. His statement that “I’ve heard from people and I’ve seen such breath tests go wrong,” opened the door to cross-examination. As noted by the majority opinion, this court has held:

“Opening the door” is an evidentiary concept that permits the admission of otherwise inadmissible testimony in order to qualify, explain, or limit previously admitted testimony or evidence. Overton v. State, 801 So.2d 877, 900 (Fla.2001). The normally inadmissible evidence is allowed when fairness and the search for the truth require a fuller explication of evidence that otherwise would have been incomplete and misleading. Hudson v. State, 992 So.2d 96, 110 (Fla.2008).

Austin, 48 So.3d at 1025.

A number of other Florida cases address this very point. In C.M. v. State, 698 So.2d 1306, 1307 (Fla. 4th DCA 1997), an officer testified that when he arrived on the scene to investigate an attempted robbery, C.M. fled. C.M. tried to diminish the officer’s testimony by testifying that he fled to avoid a truancy arrest. Id. The Fourth District held that evidence that C.M. ran after seeing police was probative of his guilty mind and therefore, “[o]n rebuttal, the state was entitled to nullify C.M.’s explanation for his flight by showing that 15 minutes earlier he had encountered the same officer without incident.” Id. at 1307.

In Butler v. State, 842 So.2d 817, 826-27 (Fla.2003), Butler testified that he and the victim had consensual sex shortly before she was murdered. He further gave the impression they had a good relationship, and he would never hurt her. In response to Butler’s allegation that he would never hurt the victim, the State was allowed in cross-examination to inquire about an incident four years earlier where Butler had choked the victim. The Butler court held that this cross-examination was permissible to explain or modify Butler’s testimony during direct examination. Id. at 827. The court noted that when a defendant testifies in court, “his credibility may be impeached in the same manner as any other witness” and that such impeachment may involve prior acts of misconduct. Id.; see Ashcraft v. State, 465 So.2d 1374, 1375 (Fla. 2d DCA 1985) (holding that Ashcroft “opened the door” to questions about a prior conviction for rape, after he gave misleading testimony that he had never hurt anyone).

In a case with similar facts to the present one, the appellant claimed that he refused to take a breath test because he was unfamiliar with the terms of the implied consent warning and he had never before heard them. Long v. State, 185 Ga.App. 277, 363 S.E.2d 807, 808 (Ga.Ct.App.1987). The court held that it was proper to impeach the appellant with evidence that he had been previously arrested twice for DUI and had been given both a urine test and a breath test. Id.

A suspect’s refusal to submit to a breath alcohol test is admissible in evidence at a trial for driving under the influence because it is relevant to show the suspect’s consciousness of guilt. See South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (holding that it was permissible for state to use appellee’s refusal to take blood-alcohol test as evidence of guilt in trial for driving under the influence); State v. Taylor, 648 So.2d 701, 704 (Fla.1995) (holding that appellee’s refusal to take field sobriety tests was “relevant to show consciousness of guilt”); Kurecka v. State, — So.3d -, -, 2010 WL 3766727 (Fla. 4th DCA 2010) (noting that where State introduces evidence of defendant’s refusal to take breath test as consciousness of guilt, the defendant can introduce evidence of circumstances surrounding refusal). Here, Hayward testified that the reason he did not want to take a breath alcohol test was because he had “heard from people, and I’ve seen breath tests go wrong.” I disagree with the majority that this testimony was not misleading or incomplete. It misled the jury because the testimony inferred that the only reason Hayward did not want to take the test was because he had heard the test was not reliable. Therefore, the State was correctly allowed to “qualify, explain, or limit” the testimony by showing that the reason Hayward did not want to take the breath alcohol test was because he had taken the test before and, as a result of the test, he was convicted of DUI. See Austin, 48 So.3d at 1025.

I believe that Hayward “opened the door” by choosing to testify to a self-serving misleading version of why he refused the breath test. Questions about his prior DUI arrest where he had taken a breathalyzer and had been convicted were perfectly appropriate in a search for the truth.


author: MORRIS, Judge.

text:
    William MORRISON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-275.
    District Court of Appeal of Florida, Second District.
    April 20, 2011.

      James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

William Morrison appeals the revocation of his probation and resulting sentence for two counts of lewd and lascivious conduct on a child under sixteen. We affirm the revocation of his probation without discussion. However, because the trial court imposed upward departure sentences without legal justification and improperly added legal status points, we reverse and remand for resentencing.

I. Background

The underlying crimes occurred between March 1 and March 28, 1995, and again on August 21, 1997. Morrison pleaded guilty and was sentenced to two 93.6-month prison terms followed by five years’ probation. In September 2007, affidavits of violation of probation were filed alleging that Morrison had unsupervised contact with children and committed a new law violation. However, at the violation of probation (VOP) hearing, the trial court determined that the State failed to prove the new law violation and Morrison’s probation was revoked solely on the basis of his unsupervised contact with children. For both counts, the trial court imposed consecutive upward departure sentences of fifteen years in prison.

Morrison filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) wherein he challenged the upward departure sentences as well as the inclusion of legal status points on his scoresheet, but that motion was denied. We conclude, however, that Morrison is entitled to relief.

II. Analysis

“ ‘The level of proof necessary to establish facts that support a departure from the sentencing guidelines is a preponderance of the evidence.’” Powanda v. State, 8 So.3d 1230, 1232 (Fla. 2d DCA 2009) (quoting § 921.001(4)(a)(6), Fla. Stat. (2007)). “‘This aspect of the [trial] court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent[,] substantial evidence supports its rulings.’” Id. (first alteration in original) (quoting Banks v. State, 732 So.2d 1065, 1067 (Fla.1999)); see also § 921.001(6), Fla. Stats. (1995) & (1997) (providing that departure sentence shall be upheld when at least one factor justifies departure regardless of whether other factors do not justify departure).

A. Vulnerability of the victim

The first factor cited by the trial court to justify an upward departure was the vulnerability of the victims in the underlying cases. Section 921.0016(3)(j) permits an upward departure if this factor is proven. However, the State failed to offer proof of this factor at the VOP hearing. Because no such proof was adduced at the VOP hearing, we sought the transcripts of the plea hearings in the 1995 and 1997 cases to see if the State proved that factor during those proceedings. See Powanda, 8 So.3d at 1232 (noting lack of proof regarding victim’s vulnerability at the VOP hearing, as well as at the plea hearing on the underlying charge). After receiving notice from the clerk of the circuit court that the transcripts have been destroyed, we relinquished jurisdiction pursuant to Florida Rule of Appellate Procedure 9.200(b)(4) and (f)(2) so that Morrison could prepare a statement of the evidence or proceedings. Morrison submitted a statement of the facts to the trial court, and because the State filed no objection and no response, the trial court approved the statement as submitted. Attached to the statement of the facts was an affidavit wherein Morrison stated that the two plea hearings were brief and without testimony.

In Powanda, the appellant’s underlying charge was sexual contact with a child twelve years of age or older, but less than eighteen years of age. We reversed Po-wanda’s upward departure sentence because “neither party presented any evidence about the victim’s vulnerability at either Mr. Powanda’s violation of probation hearing or at his 1999 plea hearing.” 8 So.3d at 1232. In so holding, we made it clear that the vulnerability of the victim may not be implied solely based on the State’s decision to charge the defendant with a crime wherein the victim’s age is an element of the crime. , Rather, there must be independent proof. See id.

Accordingly, because there is nothing in the record indicating that the vulnerability of the victim was presented at either the VOP hearing or the plea hearings, Powanda dictates that this factor cannot support an upward departure.

B. Amenability to rehabilitation or supervision

The 1995 and 1997 versions of section 921.0016(3)(p) allow a trial court to impose an upward departure if there is proof that a defendant is not amenable to rehabilitation or supervision as evidenced by--an escalating pattern of criminal conduct. The trial court determined this factor was met because Morrison “continued to have improper contact with children following his release on probation.”

This was improper. “[FJactors related to violation of probation ... cannot be used as grounds for departure.” Lambert v. State, 545 So.2d 838, 842 (Fla.1989); see also Lambe v. State, 53 So.3d 1137, 1139 (Fla. 4th DCA 2011); Shores v. State, 15 So.3d 697, 700 (Fla. 1st DCA 2009) (“There[] is .... a prohibition against basing a departure sentence on conduct occurring after a criminal offense, when resentencing for the offense after a probation violation.” (citing Lambert, 545 So.2d at 842)). And “even recurrent criminal conduct — absent temporal proximity or escalation — does not justify upward departure.” Shores, 15 So.3d at 700 (footnote omitted) (citing Barfield v. State, 594 So.2d 259, 261 (Fla.1992)).

The State concedes that there was no escalation in Morrison’s conduct. And, even as questionable as Morrison’s unsupervised contact with children might be, it was not a crime and could not provide the basis for an upward departure. See Lambert, 545 So.2d at 842; Lambe, 53 So.3d at 1139; Shores, 15 So.3d at 700-01. The trial court erred by relying on this factor.

C. Insidious nature of the violation

This factor was one created by the trial court based on its determination that the departure criteria set forth, in section 921.0016(3) was not intended to be exclusive. The trial court held that a departure was justified here because although

the fact that the sentence results from a violation of probation is already accounted for by the inclusion of scoresheet points for “under restriction,” this fails to take into account the particularly insidious nature of the VOP, specifically that the Defendant again targeted an especially vulnerable victim under circumstances suggesting an escalation of contact beginning with mere association to the child and escalating to improper e-mails, calls, and physical contact including kissing the child while at least partially secreted in a wood shop.

But as we have noted, the State concedes that there was no proof of an escalation in Morrison’s conduct. Typically, escalation is proven where there is “a progression from nonviolent to violent crimes, a progression of increasingly violent crimes, or a pattern of increasingly serious criminal activity.” § 921.001(8). Morrison’s conduct does not fall within any of those definitions. It is clear to this court then that the trial court was penalizing Morrison for his pattern of conduct which occurred after the criminal offense. This was improper. See Lambert, 545 So.2d at 842; Lambe, 53 So.3d at 1139; Shores, 15 So.3d at 700-01.

D. Commission of 1997 offense while on pretrial release for 1995 offense

As the last stated reason for departure, the trial court found that an upward departure was appropriate because Morrison committed the 1997 offense while he was on pretrial release for the 1995 offense. The trial court found that this fact was “further proof that Defendant cannot control his behavior and is hot amenable to rehabilitation.” The trial court noted that it did not make an oral pronouncement of this factor because it had been unaware of the pretrial release issue at the time of the VOP hearing. The State concedes error on the application of this factor, and we agree.

The fact that Morrison committed a new crime in close temporal proximity to the first crime is not enough—by itself—to justify a departure. See Barfield, 594 So.2d at 261. There must be an escalation of conduct which is not present in this case. Consequently, the trial court erred by using this factor to justify an upward departure.

E. Application of legal status points

Morrison also challenges the application of legal status points on his score-sheet, arguing that his commission of the 1997 offense while on pretrial release for the 1995 offense does not qualify for purposes of the inclusion of legal status points.

“Legal status points are assessed at the time of sentencing if, at the time of the commission of the offense(s) for which [the defendant] is being sentenced, the defendant was under any form of legal status.” Lockhart v. State, 980 So.2d 613, 615 (Fla. 4th DCA 2008) (citing § 921.0024(1)(b), Fla. Stat. (2006); Fla. R. Crim. P. 3.704(d)(15)). However, section 921.0011(3), which defines legal status, does not reference pretrial release. And other courts from this state have held that legal status points should not be applied in such a situation. See Annunziata v. State, 697 So.2d 997, 998-99 (Fla. 5th DCA 1997) (noting that none of the legislative changes to section 921.0011(6) “indicates that the legislature ever intended to change the result obtained in the many cases where it was held that release on pre-trial [sic] bond was not a legal status”); Mize v. State, 495 So.2d 845, 846 (Fla. 3d DCA 1986) (noting that Florida Rule of Criminal Procedure 3.701(d)(6) did not define legal status to include a situation where the defendant was on pretrial release). We agree with the Third and Fifth District Courts of Appeal, and we therefore hold that the commission of a crime while on pretrial release does not qualify a defendant for the inclusion of legal status points on a scoresheet. The trial court erred by applying these points to Morrison’s score-sheet.

III. Conclusion

We affirm the revocation of Morrison’s probation. But because there was insufficient evidence to support any of the factors relied on by the trial court in imposing upward departure sentences and because the legal status points were improperly imposed, we reverse the upward departure sentences and we remand for resentencing within the permissible guidelines range and for removal of the legal status points.

Affirmed in part, reversed in part, and remanded.

WALLACE and BLACK, JJ„ Concur.

      . The trial court was correct that the list of departure criteria set forth in sections 921.0016(3) and (4) is not intended to be exclusive.

      . We briefly note that at sentencing, defense counsel agreed with the trial court that the Department of Corrections’ sentencing guidelines manual indicated that the legal status points should be imposed. However, when reviewing the entire context of the discussion between the trial court and defense counsel, it becomes clear that they were discussing the commission of a new crime while a defendant was on probation. That is not how the legal status points were applied here. That discussion then cannot be viewed as a concession by defense counsel regarding the application of legal status points to the particular facts of this case.


text:
    Joaquin DUARTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1437.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and LAGOA and EMAS, JJ.
   PER CURIAM.

Joaquin Duarte appeals his final judgment of conviction and sentence. He asserts on appeal that the trial court erred when it instructed the jury, over defense objection, that he could be found guilty of armed burglary where the information failed to allege that he was armed, but instead alleged that he discharged a firearm. He relies upon State v. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992), for the proposition that the failure of the State to properly charge him precludes it from enhancing his sentence. We conclude that the allegation that Duarte discharged a firearm provided a sufficient basis for the trial court’s instruction for armed burglary and a proper basis for enhancement, and therefore affirm.

The State charged Duarte in a thirteen-count information. The front page of the information contains a listing of each individual count, together with a reference to the relevant statutory provisions. Count thirteen is described on the front page as: “13. BURGLARY/ARMED 810.02(2)(b) & 775.087 FI.” In the body of the information, count thirteen alleges that Duarte:

did unlawfully enter or remain in a conveyance, to wit: an automobile, the property of ANTON FORBES and/or CITY OF MIAMI, without the consent of ANTON FORBES and/or CITY OF MIAMI as owner or custodian, the defendant having an intent to commit an offense therein, to wit: THEFT, and during the course of the commission of the offense, said defendant discharged a firearm or destructive device, in violation of s. 810.02(2)(b) and s. 775.087 Florida Statutes....

(Emphasis supplied.)

Section 810.02(2)(b), Florida Statutes (2010), provides in pertinent part:

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084 if, in the course of committing the offense, the offender:
(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon;

At its core, a charging document must comport with basic notions of due process by placing a defendant on adequate notice of the specific nature of the criminal charge. See Cole v. Ark, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); Fulcher v. State, 766 So.2d 243 (Fla. 4th DCA 2000). Procedurally, a defendant may seek dismissal of a charging document that fails to fulfill this requirement. Florida Rules of Criminal Procedure 3.190(c) (2010), provides:

(c) Time for Moving to Dismiss. Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment.... Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived.

This must be read in conjunction with rule 3.140(o), which provides:

(o) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information .... unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused arid embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

These provisions serve to discourage defendants from waiting until after a trial is over (or after the close of the evidence) before contesting deficiencies in a charging document which could have easily been corrected if they had been raised before trial. See DuBoise v. State, 520 So.2d 260, 264 (Fla.1988).

Duarte did not file a motion to dismiss count thirteen as legally insufficient, or otherwise contest its legal sufficiency, until after the close of all the evidence, and after the trial court heard and denied the motion for judgment of acquittal. . The issue was raised for the first time during the charge conference, where Duarte objected to the court’s instruction to the jury on that portion of the standard burglary instruction that directs the jury to consider aggravating circumstances (e.g., that the defendant was armed). Duarte’s failure to file a pretrial motion to dismiss constitutes a waiver of such a defect, unless the objection is based on fundamental grounds or the information is “so vague, indistinct, and indefinite as to embarrass him ... in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.” See Fla. R. Crim. Procedure 3.190(c) and 3.140(o); Mesa v. State, 632 So.2d 1094 (Fla. 3d DCA 1994).

Duarte did not claim below, nor does he claim in this appeal, that the information was so vague, indistinct or indefinite as to embarrass him in the preparation of his defense or expose him to a substantial danger of a new prosecution for the same offense. Nor does Duarte expressly assert that his objection is based upon fundamental grounds. Instead, Duarte contends that the trial court erred when it instructed the jury on a charge of armed burglary, because the information did not allege that he was armed with a dangerous weapon during the commission of the burglary, but instead alleged only that he discharged a firearm in the course of committing the burglary.

Duarte argues that the information thus did not charge an armed burglary. This argument is without merit. Taken together, the description on the front page of the information (“13. BURGLARY/ARMED 810.02(2)(b) & 775.087”); the allegation that, in the course of committing the burglary, Duarte “discharged a firearm”; and the statutory reference to section 810.02(2)(b) within the body of count thirteen, sufficiently alleged that, in the course of committing the burglary, Duarte was or became armed with a dangerous weapon. Coke v. State, 955 So.2d 1216, 1217 (Fla. 4th DCA 2007) (information charging aggravated battery that made specific reference to enhancement statute and alleged that defendant “shot victim in the legs” sufficiently alleged the element of “great bodily harm” allowing for enhancement of sentence); State v. Burnette, 881 So.2d 693, 695 (Fla. 1st DCA 2004) (an information may withstand an untimely challenge to a technical deficiency where a statutory citation for the crime is given, but all elements are not properly charged, or where the wrong or no statutory citation is given, but all elements of the crime are properly charged).

Affirmed.

      . The jury was instructed in relevant part:
      The punishment provided by law for' the crime of burglary is greater if the burglary was committed under certain aggravating circumstances. Therefore, if you find the defendant guilty of burglary, you must then consider whether the State has further proved those circumstances. If you find that in the course of committing the burglary the defendant was armed, or armed himself within the conveyance with a firearm, you should find him guilty of burglary while armed.
      Fla. Std. Jury Instr. (Crim.) 13.1.

      . The allegation of "discharged a firearm” was required for the defendant to be eligible for a 20-year mandatory minimum sentence under the "10/20/Life” statute. See 775.087(2)(a)2, Fla. Stat. (2010).


author: CORTIÑAS, J.

text:
    Russell and Linda ALLEN, et al., Appellants, v. CITY OF KEY WEST, Appellee.
    No. 3D10-960.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.

      Bell & Melamed and Jeffrey M. Bell, Fort Lauderdale; Horan & Wallace and R. Bruce Wallace, Key West, for appellant.
    Johnson, Anselmo, Murdoch, Burke, Piper & Hockman and Michael T. Burke and Hudson C. Gill, Fort Lauderdale, for appellee.
    Before SUAREZ, CORTINAS, and ROTHENBERG, JJ.
   CORTIÑAS, J.

Russell and Linda Allen and several other individual property owners (collectively the “Owners”) seek review of the trial court’s final judgment denying their claims for declaratory judgment and injunctive relief against the City of Key West (the “City”). Because Rollison v. City of Key West, 875 So.2d 659 (Fla. 3d DCA 2004), is controlling, we reverse.

The Owners purchased their respective properties in the City with the intent to use them as short-term rentals for a portion of each year in order to offset their purchase costs. At the time the Owners purchased their properties, the City’s 1986 Growth Management Ordinance (“GMO”) was in effect as part of the City’s Land Development Regulations (“LDRs”). The GMO, which applied to each of the Owners, contained the following definition:

Transient housing is commercially operated housing, principally available to short-term visitors; transient housing includes hotels, motels, guest houses, and time shares, and other housing available for rent for fewer than twenty-eight days.

City of Key West, Fla., Code, Ch. 24½ § (2)(F) (1986) (emphasis added). In 1998, the City adopted LDRs that eliminated the previous definition of “transient housing.”

Prior to the enactment of the 1998 LDRs, the Owners or their predecessors used their respective properties for short-term rentals for less than half of any given year. Believing their properties were not “transient housing,” as defined pre-1998, the Owners or their predecessors secured necessary non-transient occupational licenses. After the City denied the Owners’ requests to have the short-term rental use deemed a “grandfathered in,” lawful, nonconforming use, the Owners filed the instant suit for declaratory and injunctive relief, and the case was eventually tried without a jury.

At trial, the parties disputed the City’s policy concerning transient short-term rental properties leading up to the adoption of the 1998 LDRs. Testimony demonstrated that, for a time, Key West property owners and managers were interpreting the “principally available” language to mean that a property could not be considered transient if it was rented for less than fifty percent (50%) of the year. This became known as the “50% rule.” Evidence was presented that in June 1997, Carolyn Walker (“Walker”), who had been the City’s chief licensing official since 1987, sent out a memorandum setting forth the City’s “interim policy” on the 50% rule. Walker testified that the memorandum was sent at the direction of then-City attorney Robert Tischenkel (“Tischenkel”). In September 1997, the City passed Ordinance 97-20, which modified the definition of “transient housing” and removed the “principally available” language. See City of Key West, Fla., Code, Ch. 86, § 9 (1997). According to Walker, Ordinance 97-20 effectively ended the approximately three-month-long “interim policy,” although there was no official termination date. The Department of Community Affairs (the “Department”), however, objected to certain provisions in Ordinance 97-20, and, in 1998, the City passed Ordinance 98-14, which addressed the Department’s concerns, and enacted the new LDRs. See id.; City of Key West, Fla., Code, Ch. 86, § 1 (1998).

The City later passed Ordinance 98-16 in an effort to directly regulate transient rentals. City of Key West, Fla., Code, Ch. 86, § 9 (1998). The Department rejected Ordinance 98-16 in July 1998, and subsequently, the City passed ordinance 98-31, which contained the same relevant language as Ordinance 98-16. Id. However, in 2001, this Court declared Ordinance 98-31 null and void due to improper notice. See Coleman v. City of Key West, 807 So.2d 84 (Fla. 3d DCA 2001). Thereafter, Ordinance 02-06, which satisfied all notice requirements and contained identical language as Ordinance 98-31, became effective in September 2003. City of Key West, Fla., Code, Ch. 86, § 9 (2002).

Tellingly, Ordinances 98-16, 98-31, and 02-06 all contained the same pertinent language which reads as follows:

In 1986, the City enacted former zoning code section 35.24(44) which provided the following definition of a transient living accommodation: “Commercially operated housing principally available to short-term visitors for less than twenty-eight (28) days.” This definition shall herein be referred to as the “Former Transient Definition.”) Some property owners and developers interpreted the Former Transient Definition to mean that an owner could rent his or her residential dwelling for less than half the year without the dwelling losing its residential status, and therefore without the need for a City-issued transient license (so long as State of Florida licensing requirements were met). This interpretation went unchallenged by the City.

See City of Key West, Fla., Code, Ch. 86, § 9 (1998); City of Key West, Fla., Code, Ch. 86, § 9 (2002) (emphasis added). Furthermore, evidence at trial did not demonstrate that any enforcement actions were taken by the City with respect to short-term rentals being conducted pursuant to the 50% rule prior to the effective date of Ordinance 02-06, and, more specifically, no such actions were taken against the Owners.

In Rollison, we reversed the declaratory judgment in favor of the City and found that the property owner in that case was entitled to have her lawful nonconforming use “grandfathered in” because the property use lawfully existed before the existing restrictions of short-term rentals became effective. Rollison, 875 So.2d at 663. We found that Ms. Rollison established that her rental property constituted a lawful nonconforming use because:

(1) She was actively engaged in short-term rentals at Unit 271 prior to the 1998 adoption of the LDRs, and the subsequent Zoning Code amendments;
(2) Her rentals complied with the 50% rule because she rented the unit for less than twenty-six weeks per year; and
(3) She obtained the occupational license required at that time, the nontransient occupational license.

Id.

Similarly, in our case, all of the properties were purchased by the Owners at a time when the 1986 GMO was in effect. Moreover, the Owners presented evidence that either they, or their predecessors, 1) had engaged in short-term rentals of their units prior to the enactment of the 1998 LDRs and subsequent zoning code amendments, 2) complied with the 50% rule, and 3) obtained non-transient occupational licenses. In ruling in favor of the City, the trial court found that the Rollison decision was limited in applicability to properties within the Truman Annex, and therefore, was inapplicable to the Owners’ properties. We disagree.

The Truman Annex was a Planned Redevelopment District and subject to a definition of transient housing containing the same “principally available” language in the GMO which governed the Owners’ properties. Furthermore, trial testimony by both Walker and Tischenkel demonstrated that, prior to the Rollison decision, no distinction was made between Truman Annex properties and non-Truman Annex Properties. While we are cognizant that the plaintiff in Rollison sought and received confirmation from the City that she could rent her unit out short-term, we do not find this distinction to be sufficient to defeat the Owners’ claims. Additionally, although Ms. Rollison purchased her unit within the purported three-month period when the City’s “interim policy” was in effect, we note that the Rollison decision does not suggest either that the time of purchase was critical nor that the actual rental of Rollison’s property occurred solely during that period. See Rollison, 875 So.2d 659. Moreover, there is evidence in the record, including testimony and the language of the ordinances themselves, demonstrating that the 50% rule “went unchallenged by the City.”

We find that our interpretation and application of the 50% rule in Rollison was not limited solely to properties within the Truman Annex. Instead, as in Rollison, because the Owners or their predecessors 1) had engaged in short-term rental of their units prior to the enactment of the 1998 LDRs at a time when their rentals met the definition of non-tránsient housing under the City code, 2) complied with the 50% rule, and 3) obtained non-transient occupational licenses, the logic and holding of our Rollison decision applies to this case. Accordingly, we reverse the final judgment denying the Owners’ claims for declaratory relief and injunction. We find no merit in the City’s cross-appeal challenging the Owners’ claims on statute of limitations grounds.

Reversed and remanded.

      . Much of the dispute between the Owners and the City revolves around the “50% rule.” As we set forth in Rollison:

      [T]ransient housing is a term of art. If housing is rented short-term for more than fifty percent of the year, then under the 50% rule it is "transient housing” and required a transient occupational license. If such housing was rented short-term for less than fifty percent of the year, then under the 50% rulé it was not "transient housing” and this required a non-transient occupational license.

        Rollison 875 So.2d at 662, n6.

      . At trial, Tischenkel testified that although Ordinance 97-20 created a definition for "transient rentals,” it had no actual, corresponding regulation.

      . More specifically, the pertinent portion of the former City of Key West Code of Ordinances section 35.07(14)03), which applied to Planned Redevelopment Districts, such as the Truman Annex, provided as follows:
      Transient Housing is commercially operated housing principally available to short term visitors for less than twenty-eight (28) days; transient housing includes hotels, motels, guest houses, and time shares. A transient housing unit may consist of up to two (2) hotel “locked-out” rooms (i.e., two (2) “keys” per unit).
      City of Key West, Fla., Code, Ch. 35, § 7(14)(b) (emphasis added).


text:
    Elizabeth Maria SLAATS and Henk Slaats, Appellants, v. SANDY LANE RESIDENTIAL, LLC, et al., Appellees.
    No. 3D10-1896.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Friedman & Friedman and John S. Sel-igman; Ross & Girten, Lauri Waldman Ross, and Theresa L. Girten, Miami, for appellants.
    Rumberger, Kirk & Caldwell, and Robert V. Fitzsimmons, Manuel S. Hiraldo, and Genny A. Castellanos, Miami, for ap-pellees.
    Before RAMIREZ, C.J., and GERSTEN and WELLS, JJ.
   PER CURIAM.

Elizabeth Maria Slaats and Henk Slaats (“the plaintiffs”) appeal from a final summary judgment in favor of Sandy Lane Residential, LLC, and Gansevoort South, LLC (“the defendants”). We reverse.

The plaintiffs sued the defendants for injuries Mrs. Slaats sustained from a fall while exiting a hotel pool area. The plaintiffs claim the fall was caused by a step down which created a dangerous condition.

After some discovery, the defendants moved for summary judgment. The defendants claimed that they had no liability because the step down was an open and obvious condition. In opposition to the motion, the plaintiffs filed the affidavit of an expert stating that the step down presented a unique, special hazard. The trial court agreed with the defendants, and entered summary judgment in their favor.

On appeal, the plaintiffs assert that the trial court erred in entering summary judgment for two reasons. First, the plaintiffs assert that discovery has yet to be completed. Secondly, the plaintiffs assert genuine issues of material fact exist regarding whether the step down presented a unique, special hazard.

On the other hand, the defendants contend that the trial court properly entered summary judgment because they had no duty to warn of an open and obvious condition. We agree with the plaintiffs that genuine issues of material fact preclude summary judgment.

Summary judgment is appropriate only when there are no genuine issues of material fact and it is clear that the moving party is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). In negligence cases, especially those dependent on expert testimony, summary judgment should be restricted to extraordinary circumstances. See Lombard v. Exec. Elevator Serv., Inc., 545 So.2d 453 (Fla. 3d DCA 1989). In premises liability actions, where issues of fact or differing inferences from the facts exist, Florida courts generally choose to let a jury decide. See, e.g., Javits v. RSMO Independence Mgmt. Consultants, Inc., 738 So.2d 521 (Fla. 4th DCA 1999); Hadley v. Davjoy, Inc., 613 So.2d 49 (Fla. 4th DCA 1992); Hogan v. Chupka, 579 So.2d 395 (Fla. 3d DCA 1991); Fletcher v. Petman Enters., Inc., 324 So.2d 135 (Fla. 3d DCA 1975); Pensacola Rest. Supply Co. v. Davison, 266 So.2d 682 (Fla. 1st DCA 1972).

Here, the plaintiffs presented some evidence that the step down created a dangerous condition. Specifically, Elizabeth testified that she was unable to see the step down because it was uniform in color and the afternoon sun was shining directly in her eyes. Further, the plaintiffs presented the affidavit of an architectural expert stating that the step down presented a unique, special hazard because the drop was hidden and unexpected. Thus, genuine issues of material fact remain unresolved which preclude summary judgment.

Accordingly, we reverse the summary judgment entered in favor of the defendants, and remand for further proceedings.

Reversed and remanded.


author: SCHWARTZ, Senior Judge.

text:
    B.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2902.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SHEPHERD and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The adjudication below for possession of marijuana'is affirmed. We conclude that the disputed search of B.C.’s person which revealed the contraband was properly conducted incident to arrest based upon probable cause that, as a passenger in a vehicle which was the site of a drug transaction observed by a fellow officer, B.C. had committed a felony offense. See Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003); see also Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009); see also State v. Bagley, 844 So.2d 688, 690 (Fla. 3d DCA 2003) (“The fellow officer rule allows an arresting officer to assume probable cause to arrest a suspect from information supplied by other officers.” (quoting Voorhees v. State, 699 So.2d 602, 609 (Fla.1997))).

Affirmed.