author: THOMAS, J.

text:
    Antonio MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2271.
    District Court of Appeal of Florida, First District.
    April 14, 2009.

      Nancy A. Daniels, Public Defender, Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Donna A. Gerace and Giselle Lylen Rivera, Assistant Attorneys General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant seeks review of his convictions and sentences for two counts of sale of cocaine within 1000 feet of a church while armed. Appellant argues that the two counts should not have been joined for trial, and raises several issues with regard to post-trial procedure. We affirm the trial court’s refusal to sever the counts. As the State concedes, however, Appellant was deprived of his constitutional right to counsel during certain critical stages of his criminal prosecution; therefore, we reverse and remand his convictions and sentences for the trial court to appoint counsel.

On August 2, 2006, Appellant was charged by way of a second amended information with sale of cocaine, or possession with intent to sell, within 1000 feet of a church (count I); sale of cocaine, or possession with intent to sell, within 1000 feet of a church while armed (count II); possession of a firearm by a convicted felon (count III); possession of cocaine while armed (count IV); and possession of a firearm by a convicted felon (count V). All counts were initially severed, but counts I — III were later joined. At the conclusion of Appellant’s jury trial, he was found guilty as charged as to count I, and found guilty as to count II, including a specific finding that he did not carry, display, use, threaten, or attempt to use a firearm. The State entered a nolle prose-qui as to count III.

Appellant then filed a pro se “Motion to Substitute or Replace Counsel,” and requested a hearing pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). After discussing the motion with the trial court, Appellant determined that he should retain his attorney through sentencing. The trial court informed Appellant that it was treating his motion to substitute counsel as withdrawn, to which Appellant agreed. The trial court then directed Appellant’s counsel to assist Appellant in making whatever arguments Appellant felt were necessary in his motion for new trial. Appellant’s counsel advised the court that Appellant wanted to argue ineffective assistance of counsel, but counsel felt that he could not, in good faith, make such arguments. The trial court instructed counsel to incorporate all of Appellant’s arguments in the motion for new trial, stating that it would be clear that the arguments were Appellant’s position.

Appellant later filed his pro se “Amended Motion for New Trial or Arrest of Judgment,” alleging that his trial counsel was ineffective. Counsel filed a motion to withdraw, certifying an irreconcilable conflict of interest between himself and Appellant, and informed the court that he could not argue that he was competent and effective as well as advocate for Appellant to receive a new trial based on his alleged ineffectiveness. The trial court initially refused to allow defense counsel to withdraw, stating that counsel could remain on the case to answer questions that arose. It then conducted a hearing on Appellant’s motion for new trial. After discussing Appellant’s claims with regard to his counsel, the court appears to have treated the claims as filed in a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, granted counsel’s motion to withdraw, and proceeded to an evidentiary hearing on the alleged rule 3.850 motion. The trial court did not appoint counsel to represent Appellant.

We agree with the State that Appellant waived his right to a Nelson hearing by allowing the withdrawal of his motion for substitute counsel. See Carratelli v. State, 832 So.2d 850, 856 (Fla. 4th DCA 2002) (stating that failure to obtain a ruling in the trial court similarly fails to preserve the issue for appellate review). However, notwithstanding Appellant’s waiver, the trial court erred by allowing Appellant’s counsel to withdraw and proceeding to an evidentiary hearing on Appellant’s motion for new trial without appointment of counsel. A defendant is entitled to conflict-free counsel at every critical stage in the proceeding. Jones v. State, 827 So.2d 1086, 1087 (Fla. 1st DCA 2002). The hearing on Appellant’s motion for new trial was a “critical stage” in his criminal proceeding wherein he was entitled to counsel. See Harper v. State, 201 So.2d 65, 67 (Fla.1967); see also Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Additionally, the trial court erred in treating the motion as filed pursuant to Florida Rule of Criminal Procedure 3.850. A rule 3.850 motion must be filed within two years after judgment and sentence become final under Florida Rule of Criminal Procedure 3.850(b), absent allegations not relevant here. The two-year time period begins to run when appellate proceedings have concluded and the court issues a mandate, or 30 days after the trial court enters its order, whichever is later. See Jones v. State, 602 So.2d 606, 607-08 (Fla. 1st DCA 1992); Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988). Appellant’s sentence had not become final and the time period in which he was entitled to file a motion for postconviction relief had not begun at the time he filed his motion for a new trial; thus, the trial court improperly treated the motion as a rule 3.850 motion. Further, claims of ineffective assistance of counsel are properly raised in a motion for a new trial. See Skrandel v. State, 830 So.2d 109 (Fla. 4th DCA 2002).

Finally, the trial court erred by sentencing Appellant, which is another critical stage in the proceeding, without appointing him counsel. Jones, 827 So.2d at 1087; Bell v. State, 642 So.2d 1113 (Fla. 1st DCA 1994).

Accordingly, we vacate the order denying Appellant’s motion for new trial, reverse Appellant’s convictions and sentences, and remand the cause to the trial court for the appointment of conflict-free counsel. Upon remand, appointed counsel may file a motion for new trial, if warranted.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

WEBSTER and VAN NORTWICK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terrence LOONEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1168.
    District Court of Appeal of Florida, First District.
    April 14, 2009.
    Terrence Looney, pro se, Petitioner.

      Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits. This disposition is without prejudice to petitioner raising, by proper motion for postconviction relief in the trial court, a claim concerning the propriety of the jury instructions in light of our recent decision in Montgomery v. State, — So.3d —, 34 Fla. L. Weekly D360, 2009 WL 350624 (Fla. 1st DCA Feb. 12, 2009).

ALLEN, WOLF, and WEBSTER, JJ., concur.


text:
    Shamar L. McCULLUM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0003.
    District Court of Appeal of Florida, First District.
    April 14, 2009.
    Shamar L. McCullum, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Shamar L. McCullum timely seeks a belated appeal of a November 20, 2006, judgment and sentence of the circuit court. In response to an order to show cause, the state indicates that it does not oppose the granting of that relief. However, our investigation of the matter discloses that in fact a timely appeal of the judgment and sentence was taken, and was docketed as case number 1D06-6316. It appears that through no fault directly attributable to petitioner, that appeal was dismissed for failure to respond to the court’s order requiring payment of the filing fee or the filing of an order of insolvency entered by the lower tribunal. Under the circumstances, we conclude that the proper remedy is not to grant a belated appeal, but rather to reinstate the previously filed appeal.

Accordingly, the appeal in McCullum v. State, case number 1D06-6316, is hereby reinstated. The means by which that appeal will now proceed will be addressed by separate order issued under that case number.

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    David R. BLUE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5940.
    District Court of Appeal of Florida, First District.
    April 14, 2009.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges his conviction for capital sexual battery, contending that his cross-examination of the alleged victim was improperly limited by the trial court. During cross-examination, defense counsel attempted to question the witness about previous statements she had made which would have provided a basis for defense counsel to argue to the jury that the witness had made false allegations against the appellant in the past, and that her present testimony should therefore not be accepted as true. The trial court disallowed the line of questioning, finding it to be outside the scope of the state’s direct examination.

A defendant has a constitutional right to pursue a full cross-examination to expose a witness’s bias or improper motive in testifying against the defendant, even when the questioning goes outside the scope of the prosecutor’s direct examination. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Washington v. State, 737 So.2d 1208 (Fla. 1st DCA 1999). Because the attempted cross-examination related to the witness’s credibility, the appellant’s constitutionally protected right to a full cross-examination was denied. Accordingly, as we cannot say that this error was harmless, the appellant’s conviction is reversed and the case is remanded.

BARFIELD, ALLEN, and LEWIS, JJ., concur.


author: VILLANTI, Judge.

text:
    STATE of Florida, Appellant, v. George Markis ALLEN, Appellee.
    No. 2D08-2343.
    District Court of Appeal of Florida, Second District.
    April 15, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   VILLANTI, Judge.

The State appeals the sentence imposed on sixteen-year-old George Allen, contending that it was an illegal sentence under the statutes applicable to juveniles charged by mandatory direct-file informations. We agree, and we reverse and remand for further proceedings.

The State charged sixteen-year-old Allen with armed robbery by a mandatory direct-filed information pursuant to section 985.557(2)(d)(l)(a), Florida Statutes (2008). Section 985.557(2)(d)(l)(a) requires the State to direct-file an information in adult court when the juvenile is sixteen or seventeen years old at the time he or she commits the alleged offense, when the offense is one listed in section 775.087(2)(a)(l)(a)-(q), Florida Statutes (2008), and when the juvenile actually possessed a firearm during the commission of the crime. There is no dispute that the information charging Allen with armed robbery was properly and legally filed in adult court.

At the pretrial conference, Men’s counsel indicated that Allen hoped to resolve the case through a plea, and he requested that the trial court agree to sentence Allen as a juvenile based on the recommendation from the Department of Juvenile Justice in its “Adult Sentencing Summary Form.” Defense counsel also pointed out that the investigating detective stated that he would not be opposed to the court’s imposing juvenile sanctions. The State objected to any juvenile sentence, arguing that such a sentence was not permitted under section 985.557(2)(d)(2)(a). After considering both arguments and the documents offered by Allen, the trial court offered to sentence Allen to a moderate-risk commitment program to run concurrently with another juvenile sentence Allen was already serving. Over the State’s objection, Allen agreed to this offer and pleaded no contest to the armed robbery charge. The trial court withheld adjudication and sentenced Allen to the moderate-risk program with aftercare until his twenty-first birthday, thus imposing a period of supervision of four years. In this appeal, the State contends that the trial court did not have the discretion to impose this sentence. The State is correct.

Subsections 985.557(2)(d)(2) and (2)(d)(3) set forth the sentencing options available to the trial court when a juvenile is charged by mandatory direct-file information under section 985.557(2)(d)(1):

2. Upon transfer, any child who is:
a.Charged under sub-subparagraph l.a. and who has been previously adjudicated or had adjudication withheld for a forcible felony offense or any offense involving a firearm, or who has been previously placed in a residential commitment program, shall be subject to sentencing under s. 775.087(2)(a), notwithstanding s. 985.565.
b.Charged under sub-subparagraph l.b. or sub-subparagraph l.c., shall be subject to sentencing under s. 775.087(2)(a), notwithstanding s. 985.565.
3. Upon transfer, any child who is charged under this paragraph, but who does not meet the requirements specified in subparagraph 2., shall be sentenced under s. 985.565; however, if the court imposes a juvenile sanction, the court must commit the child to a high-risk or maximum-risk juvenile facility.

§ 985.557(2)(d) (emphasis added). Under section 985.565, the sentencing alternatives available for a juvenile charged by mandatory direct-file information are as follows:

2. Other cases. — If a child who has been transferred for criminal prosecution pursuant to information or waiver of juvenile court jurisdiction is found to have committed a violation of state law or a lesser included offense for which he or she was charged as a part of the criminal episode, the court may sentence as follows:
a. As an adult;
b. Under chapter 958; or
c. As a juvenile under this section.

§ 985.565(4)(a).

Reading these sentencing statutes together, it is clear that the trial court in Allen’s case had the following sentencing options available to it:

1. If the court found that Allen had been previously adjudicated or had previously had adjudication withheld for an offense involving a firearm, it could sentence him under section 775.087(2)(a), the 10/20/ Life statute, pursuant to section 985.557(2)(d)(2)(a); or

2. If the court found that Allen had not been previously adjudicated for an offense involving a firearm, it could sentence him:

a. as an adult pursuant to section 985.565(4)(a)(2)(a);
b. as a youthful offender pursuant to section 985.565(4)(a)(2)(b); or
c. as a juvenile pursuant to section 985.565(4)(a)(2)(c).

However, if the court chose to impose juvenile sanctions under section 985.565(4)(a)(2)(c), it was required to commit Allen to a high-risk or maximum-risk juvenile facility pursuant to section 985.557(2)(d)(3). No other sentencing options existed for the trial court in this case under the plain language of the relevant sentencing statutes.

At the pretrial hearing, the trial court found, after argument from the parties, that Allen did not have a prior adjudication for an offense involving a firearm. Based on that finding, the trial court determined that it was not required to sentence Allen under the 10/20/Life statute pursuant to section 985.557(2)(d)(2)(a). Instead, the trial court sentenced Allen to a moderate-risk juvenile program, which was improper. As outlined above, once the trial court found that Allen did not qualify for sentencing under section 985.557(2)(d)(2)(a), the sentencing options available to it were adult sanctions, youthful offender sanctions, or commitment to a high-risk or maximum-risk juvenile facility. Commitment to a moderate-risk facility was not a legal sentencing option. Accordingly, we must reverse Allen’s sentence and remand for further proceedings.

In this appeal, the State argues that, on remand, the trial court should be required to sentence Allen under the 10/20/Life statute pursuant to section 985.557(2)(d)(2)(a) because Allen had a pri- or adjudication for an offense involving a firearm. The record shows that on November 30, 2007, Allen committed grand theft by stealing his stepfather’s firearm. Allen committed the armed robbery at issue in this case on January 19, 2008. On February 11, 2008, Allen pleaded no contest to the grand theft charge from November 30, and he was committed to a moderate-risk juvenile program. Thus, when Allen was before the court for disposition on April 23, 2008, he had been previously adjudicated delinquent for the grand theft of a firearm charge, but that adjudication occurred after Allen had committed the armed robbery at issue.

Faced with these facts, Allen argued that he had not been “previously adjudicated” for an offense involving a firearm as required by section 985.557(2)(d)(2)(a) because he committed the armed robbery before he was adjudicated on the grand theft charge. Thus, according to Allen, the trial court was not required to sentence him under section 985.557(2)(d)(2)(a) because he did not have a prior adjudication for an offense involving a firearm when he committed the offense at issue. In contrast, the State argued that the trial court was required to sentence Allen under section 985.557(2)(d)(2)(a) because he had a prior adjudication for an offense involving a firearm when he appeared for sentencing on the pending charge. The trial court focused on Allen’s status when he committed the offense at issue and found that, at that time, Allen had a pending charge, not a prior adjudication. Thus, the court found that Allen did not qualify for sentencing under section 985.557(2)(d)(2)(a). The State challenges this ruling in this appeal. However, because section 985.577(2)(d)(2)(a) is ambiguous as to when the “previous!] adjudication]” must occur, the rule of lenity supports the trial court’s ruling.

As noted above, section 985.557(2)(d)(2)(a) states, in pertinent part,

2. Upon transfer, any child who is:
a. Charged under sub-subparagraph l.a. and who has been previously adjudicated or had adjudication withheld for a forcible felony offense or any offense involving a firearm, or who has been previously placed in a residential commitment program, shall be subject to sentencing under s. 775.087(2)(a), notwithstanding s. 985.565.

Nothing in this language indicates whether the prior adjudication must occur before the juvenile commits the charged crime, before the information is filed for the charged crime, or before the juvenile is sentenced for the charged crime. Because this statutory language is ambiguous, it must be interpreted in the manner most favorable to the juvenile. See § 775.021(1) (holding that penal statutes “shall be strictly construed” but that any ambiguities “shall be construed most favorably to the accused”); see also State v. Drury, 829 So.2d 287, 289 (Fla. 1st DCA 2002) (holding that the rule of lenity permitted the trial court to sentence a juvenile to a youthful offender sentence rather than a 10/20/Life sentence when the juvenile was charged under the previous version of section 985.557(2)(d)(l)).

The ambiguity in the language of section 985.557(2)(d)(2)(a) is apparent when it is compared with the language of section 985.557(2)(a). That section provides, in pertinent part,

(a) With respect to any child who was 16 or 17 years of age at the time the alleged offense was committed, the state attorney shall file an information if the child has been previously adjudicated delinquent for an act classified as a felony, which adjudication was for the commission of, attempt to commit, or conspiracy to commit murder, sexual battery, armed or strong-armed robbery, carjacking, home-invasion robbery, aggravated battery, or aggravated assault, and the child is currently charged with a second or subsequent violent crime against a person.

§ 985.557(2)(a) (emphasis added). Under that section, it is clear that the prior adjudication must occur before the information is filed. No such comparable language relating to the timing of the prior adjudication appears in section 985.557(2)(d)(2)(a). Indeed, the only possible “timing” language in section 985.557(2)(d)(2) is “upon transfer”; however, no “transfer” of the case occurs when an information is direct filed against a juvenile. Under the rule of lenity, this patent ambiguity must be construed in favor of Allen, and the trial court’s finding that Allen did not have a prior adjudication for an offense involving a firearm must be affirmed.

Accordingly, we reverse Allen’s sentence and remand for further proceedings. On remand, the trial court may sentence Allen as an adult pursuant to section 985.565(4)(a)(2)(a); as a youthful offender pursuant to section 985.565(4)(a)(2)(b); or as a juvenile pursuant to section 985.565(4)(a)(2)(c), but any juvenile sentence must be commitment to a high-risk or maximum-risk juvenile facility pursuant to section 985.557(2)(d)(3). Because Allen entered his plea based on the trial court’s offer of commitment to a moderate-risk program, Allen must be given the option on remand of either agreeing to a legal sentence or withdrawing his plea.

Reversed and remanded for further proceedings.

FULMER, J., and CASE, JAMES R., Associate Senior Judge, concur.


author: HAZOURI, J.

text:
    Herb BENJAMIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4491.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

A jury found appellant, Herb Benjamin, guilty of two counts of aggravated battery with a firearm after being instructed on both aggravated battery based upon great bodily harm and aggravated battery based upon the use of a deadly weapon. See § 784.045(l)(a), Fla. Stat. (2007). At sentencing, the trial court reclassified appellant’s conviction from a second degree felony to a first degree felony pursuant to section 775.087(l)(b), Florida Statutes (2007), and sentenced him to life as a habitual offender with a thirty-year mandatory minimum as a prison releasee reof-fender. We reverse for resentencing.

Aggravated battery is a second-degree felony which is committed by (1) causing great bodily harm or (2) using a deadly weapon. § 784.045. Section 775.087(l)(b) requires the reclassification of certain felonies, including aggravated battery, to the next higher degree if a firearm is used during the commission of the felony, “except a felony in which the use of a weapon or firearm is an essential element.” Because the use of a firearm is an essential element of the crime for which appellant was found guilty, the trial court erred when it reclassified appellant’s convictions to first degree felonies.

We reverse and remand for the trial court to change appellant’s convictions for aggravated battery with a firearm from first degree felonies to second degree felonies and to resentence him accordingly.

Reversed and Remanded.

WARNER, J., and SHAHOOD, GEORGE A., Senior Judge, concur.


author: STEVENSON, J.

text:
    TREASURE COAST TRACTOR SERVICE, INC., Appellant, v. JAC GENERAL CONSTRUCTION, INC., a Florida corporation, Appellee.
    No. 4D08-4166.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Robert J. Gorman of Robert J. Gorman & Associates, P.A., Fort Pierce, for appellant.
    No appearance for appellee.
   STEVENSON, J.

The defendant below, Treasure Coast Tractor Service, Inc., a Florida corporation with its principal place of business in St. Lucie County, appeals the trial court’s denial of its motion to transfer venue from Palm Beach County to St. Lucie County. We reverse and remand because Treasure Coast established the propriety of venue in St. Lucie County.

JAC General Construction, Inc., a Florida corporation with its principal place of business in Palm Beach County, contracted with Treasure Coast to erect a building on Treasure Coast’s land in St. Lucie County. JAC filed a complaint in Palm Beach County asserting it had fully performed, and Treasure Coast failed to provide full compensation. The contract did not specify where payment would occur. Florida Statutes section 47.051 (2008), provides in pertinent part that “[a]ctions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.” (emphasis added). In the instant case, there is no “property in litigation” involved.

Generally, where a contract involves the payment of money and no place of payment is specified in the contract, the payment is due where the creditor resides. James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487, 487 (Fla. 2d DCA 1970). The gravamen of the so-called debtor-creditor venue rule “is that payment of the debt is the performance called for by the contract; and in such cases, the residence of the payee (i.e., the place of payment) is the place of the required performance, in default of which the cause of action therein accrues.” Id. at 489. The debtor can overcome the presumption that payment was to be made at the payee’s place of residence with sufficient evidence establishing a contrary course of conduct between the parties. Pinch-A-Penny, Inc. v. Mudd, 464 So.2d 719, 720 (Fla. 2d DCA 1985).

Here, Treasure Coast filed a motion to transfer venue to St. Lucie County, attaching an affidavit wherein its president swore that all previous payments made pursuant to the contract had occurred at the property location in St. Lucie County. JAC presented no contrary affidavits or record evidence. Applying Pinch-A-Penny, we reverse and remand for a transfer of venue to St. Lucie County.

Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.


text:
    Richard RIGHTMIRE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1282.
    District Court of Appeal of Florida, First District.
    April 15, 2009.
    Richard Rightmire, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, DAVIS, and CLARK, JJ., concur.


text:
    Edward DOLANSKY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1375.
    District Court of Appeal of Florida, First District.
    April 15, 2009.
    Edward Dolansky, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, DAVIS, and CLARK, JJ., concur.


text:
    Hilton ALLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-6105.
    District Court of Appeal of Florida, First District.
    April 16, 2009.
    Hilton Allen, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

KAHN, DAVIS, and CLARK, JJ., concur.


text:
    David A. HACKBARTH, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D09-1196.
    District Court of Appeal of Florida, First District.
    April 16, 2009.
    David A. Hackbarth, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Mobley v. McNeil, 989 So.2d 1215 (Fla. 1st DCA 2008); see also Milford v. Fla. Parole Comm’n, 4 So.3d 762 (Fla. 1st DCA 2009) (Browning, J., concurring).

KAHN, DAVIS, and CLARK, JJ., concur.


text:
    Kenneth Ray COLEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1380.
    District Court of Appeal of Florida, First District.
    April 16, 2009.
    Kenneth Ray Coleman, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, DAVIS, and CLARK, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    Montez BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5039.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.

      James Marion Moorman, Public Defender, and Elizabeth Greer, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

A jury found Montez Brown guilty of trafficking in cocaine, trafficking in heroin, and possession of paraphernalia. We reverse Brown’s conviction for trafficking in cocaine because the evidence was insufficient to prove that he possessed a trafficking amount of that drug. We affirm his other convictions without discussion.

Law enforcement arrived at a residence in Bradenton to execute a search warrant. Before the search, a confidential informant entered the house with marked money. The officers observed the informant and Brown leave the residence together and stopped them. The informant no longer had the money and instead had a quantity of drugs. Brown was arrested. A SWAT team then entered the house and found Brown’s girlfriend inside. A detective discovered a box of razor blades, powder cocaine, heroin, bags, and a scale in plain view on the dining room table. In the kitchen, the detective found a trafficking amount of powder cocaine in a kitchen drawer. He also noticed glass pots that appeared to contain cocaine residue.

The officers found men’s clothing in the home. Brown said he did not live at the house but he sometimes slept there. Mail addressed to his girlfriend was also discovered.

The detective searched Brown and found $4490 in cash in his pocket, which included the marked money the informant had used to purchase drugs. After he was advised of his Miranda rights,' Brown admitted that the cash was his. He also stated that his fingerprints would be found on the razor blades discovered in the dining room and the glass pots found in the kitchen. The detective asked Brown if the cocaine discovered in the kitchen drawer was his, but Brown refused to answer.

Because Brown was not found in actual possession of the contraband, the State was required to prove that he constructively possessed it. When contraband is found in jointly occupied premises, the State has the burden of proving that the accused knew of the presence of the drug and could exercise dominion and control over it. Wagner v. State, 950 So.2d 511, 512 (Fla. 2d DCA 2007). Such knowledge and control will not be inferred; the State must establish these elements by independent proof. Robinson v. State, 975 So.2d 593, 595 (Fla. 2d DCA 2008).

The State certainly presented proof that Brown constructively possessed the paraphernalia and drugs found on the dining room table as well as the drugs discovered in the glass pots. All these items were in plain view when law enforcement entered the residence from which Brown had departed mere moments before the search. See Brown v. State, 428 So.2d 250, 252 (Fla.1983) (“[J]oint occupancy, with or without ownership of the premises, where contraband is discovered in plain view in the presence of the owner or occupant is sufficient to support a conviction for constructive possession.”).

But the State failed to present evidence that the cocaine in the kitchen drawer was in plain view. The detective’s trial testimony was somewhat murky concerning whether the kitchen drawer was open or closed before he discovered the drugs within. When the court reviewed the detective’s testimony in connection with Brown’s motion for judgment of acquittal, it commented: “well, there’s no other evidence as to whether the kitchen — whether the drawer was open when the officer went through.” At trial and in this appeal, the defense maintained that the drawer was closed. The State does not dispute this fact on appeal. More to the point, at trial the detective never testified that the cocaine in the drawer was in plain view. In fact, on cross-examination a detective admitted that he assumed those drugs were not in plain view because his report did not state that they were.

Because the State’s proof did not establish plain view, it had to present independent proof that Brown had knowledge of the cocaine in the drawer. See Robinson, 975 So.2d at 595. The fact that other drugs were in plain view did not permit an inference that Brown knew that cocaine was concealed in the kitchen drawer. See Santiago v. State, 991 So.2d 439, 442 (Fla. 2d DCA 2008). Brown did not admit that he possessed or knew about that cocaine, nor did the State present any forensic evidence or testimony that tied Brown to it. As Judge Casanueva’s thorough discussion in Santiago establishes, this court has long held that mere proximity to contraband in a jointly occupied premises does not prove the elements of the crime of constructive possession. Id. at 441-44.

Brown’s conviction for trafficking in cocaine was based solely on his purported possession of the cocaine in the drawer. Although the police saw cocaine in plain view on the dining room table, that cocaine was not submitted for testing and was not introduced into evidence at trial. Because the State did not prove that Brown possessed the only cocaine tested and introduced into evidence, he could not be convicted of any crime of cocaine possession. We reverse Brown’s conviction for trafficking in cocaine, and we remand with directions to enter a judgment of acquittal on that charge and to strike Brown’s corresponding sentence.

Affirmed in part, reversed in part, and remanded.

WHATLEY and LaROSE, JJ., Concur.

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


author: WEBSTER, J.

text:
    William T. CAPPS, Appellant, v. INDUSTRIAL BLOWPIPE AND BROADSPIRE-TAMPA, Appellees.
    No. 1D08-5263.
    District Court of Appeal of Florida, First District.
    April 21, 2009.

      David A. McCranie of David A. McCra-nie, P.A., Orange Park, and George D. Rotchford and Neal L. Betancourt of Rotchford & Betancourt, PA., Jacksonville, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
   WEBSTER, J.

In this workers’ compensation case, claimant seeks review of an order rejecting an attorney’s fee stipulation entered into between claimant and his lawyer. Claimant contends that the judge of compensation claims committed reversible error in concluding that (1) he lacked jurisdiction to consider the stipulation; and (2) the stipulation was unreasonable. We agree with claimant’s first contention. However, we affirm because the conclusion that the stipulation was unreasonable is supported by competent, substantial evidence.

In February 1985, claimant was working on the employer’s roof when the roof caught fire. After having been severely burned, claimant jumped from the roof, sustaining multiple fractures to his lower extremities and vertebrae. The employer and carrier accepted the accident as com-pensable and provided medical treatment, including numerous surgeries.

In addition to medical treatment, claimant requested benefits for care provided by his spouse. After two hearings on the matter, the judge of compensation claims awarded claimant $558,828.64 in attendant care benefits. That order was appealed by the employer and carrier and cross-appealed by claimant. See Indus. Blowpipe v. Capps, 940 So.2d 442 (Fla. 1st DCA 2006). We affirmed the issue raised in claimant’s cross-appeal without comment, but affirmed in part, reversed in part, and remanded as to the attendant care award. Id. Claimant filed a motion for appellate attorney’s fees and costs pursuant to section 440.34(3)(a) and (5), Florida Statutes (1983). We denied that motion.

On remand, the parties agreed the employer and carrier would pay a total of $491,762.39 in attendant care benefits owed to claimant. The judge of compensation claims ordered the employer and carrier to pay claimant’s lawyer $187,515.00 in attorney’s fees for securing those attendant care benefits.

Subsequently, claimant and his lawyer sought approval of a “Stipulation on Employee-Paid Attorney’s Fees and Costs.” The stipulation provided that claimant would pay his lawyer $62,749.27 in appellate attorney’s fees, for 278.89 hours of appellate work at $225 per hour, and that this fee was reasonable because the lawyer had preserved $381,659.04 in benefits.

Concluding that he lacked jurisdiction to approve it because this court had not relinquished jurisdiction after denying claimant’s motion for appellate attorney’s fees to be paid by the employer and carrier, and that section 440.34(5), Florida Statutes, granted authority to approve only an employer/carrier-paid appellate attorney’s fee, not an appellate attorney’s fee paid by a claimant, the judge of compensation claims denied the request. He also concluded, in the alternative, that the stipulated attorney’s fee was unreasonable because claimant’s lawyer had already been compensated for securing the attendant care benefits.

We review de novo the determination that the judge of compensation claims lacked subject matter jurisdiction. See Jacobsen v. Ross Stores, 882 So.2d 431, 432 (Fla. 1st DCA 2004). Unlike a court of general jurisdiction, a judge of compensation claims does not possess inherent judicial power. See Pace v. Miami-Dade County Sch. Bd., 868 So.2d 1286, 1287 (Fla. 1st DCA 2004). Such a judge possesses only the authority expressly set out in chapter 440, Florida Statutes. Id. Section 440.33(1), Florida Statutes, provides that a judge of compensation claims may “do all things conformable to law which may be necessary to enable the judge effectively to discharge the duties of her or his office.”

It is well-settled that the law in effect on the date of the accident controls an attorney’s fee award in a workers’ compensation matter. See Ship Shape v. Taylor, 397 So.2d 1199 (Fla. 1st DCA 1981). Section 440.34, Florida Statutes (1983), provides in relevant part:

(1) No fee, gratuity, or other consideration shall be paid for services rendered for a claimant in connection with any proceedings arising under this chapter, unless approved as reasonable by the deputy commissioner or court having jurisdiction over such proceedings.
(2) In awarding a reasonable attorney’s fee, the deputy commissioner shall consider only those benefits to the claimant that the attorney is responsible for securing.
(3) .... A claimant shall be responsible for the payment of his own attorney’s fees, except that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer: [in certain circumstances].
(5) If any proceedings are had for review of any claim ... before any court, the court may award the injured employee or dependent an attorney’s fee to be paid by the employer or carrier, in its discretion, which shall be paid as the court may direct.

Appellate attorney’s fees paid by an employer or carrier to a claimant are governed by section 440.34(5). By contrast, a stipulated fee paid by a claimant, regardless of whether the fee is for services rendered at the trial level or on appeal, is governed by subsections (1) and (2) of section 440.34. “[T]he statute clearly expresses a preference for a claimant’s responsibility for payment of his or her own attorney fees, except under the narrow circumstances specified.” Wells Fargo Armored Servs. v. Lee, 692 So.2d 284, 286 (Fla. 1st DCA 1997), approved, 707 So.2d 700 (Fla.1998). Consequently, although this court denied claimant’s motion for an appellate attorney’s fee to be paid pursuant to subsection (5) by the employer and carrier, that denial does not bar a separate attorney’s fee agreement pursuant to subsection (1). See Ship Shape, 397 So.2d at 1202 (denying claimant’s request for an appellate attorney’s fee to be paid by the employer and carrier, but noting that the decision was without prejudice regarding a claimant-paid appellate attorney’s fee, if approved as reasonable). Accordingly, we hold that the judge of compensation claims erroneously concluded that he lacked jurisdiction to consider the stipulation.

Pursuant to the plain language of the statute, such fees must be based on benefits secured, and may not be paid unless approved as reasonable by the judge of compensation claims. See § 440.34(1), (2), Fla. Stat. (1983); Taylor, 397 So.2d at 1202. Here, the judge concluded that the attorney’s fees agreed to by claimant and his lawyer were unreasonable because the lawyer had already been compensated for the benefits secured.

The record reveals that claimant’s lawyer initially obtained an order awarding $558,828.64 in benefits to claimant, withstood a challenge on appeal as to $381,659.04 of those benefits and, through post-appeal negotiations, obtained an additional $110,103.35, for a total of $491,762.39 in benefits. The first order on attorney’s fees of the judge of compensation claims awarded claimant’s lawyer $187,515.00, based on the final settlement amount of $491,762.39. Therefore, competent, substantial evidence supports the conclusion that the stipulation was unreasonable because claimant’s lawyer had already been fully compensated for all benefits actually secured for claimant. See § 440.34(2), Fla. Stat. (1983). Consequently, the JCC’s order is affirmed.

AFFIRMED.

BARFIELD and PADOVANO, JJ., concur.


text:
    ABERDEEN PROPERTY OWNERS ASSOCIATION, INC., Petitioner, v. BRISTOL LAKES HOMEOWNERS ASSOCIATION, INC., Respondent.
    No. 4D08-4467.
    District Court of Appeal of Florida, Fourth District.
    April 22, 2009.

      Dirán V. Seropian, Barry A. Postman, and David A. Core of Cole, Scott & Kis-sane, P.A., and St. John, Core, & Lemme, P.A., West Palm Beach, for petitioner.
    Ronald E. D’Anna of McClosky, D’Anna & Dieterle, LLP, Boca Raton, for respondent.
   PER CURIAM.

Aberdeen Property Owners Association, Inc., the defendant below, filed a petition for writ of prohibition seeking to prohibit Palm Beach County Circuit Court Judge David French from continuing to preside over a lawsuit filed against it by Bristol Lakes Homeowners Association, Inc. We grant the petition.

Plaintiff is a sub-association within the defendant’s master association, which was created by the Declaration of Covenants and Restrictions for Parkwalk Planned Unit Development and Parkwalk Planned Commercial Development (the Declaration). The complaint challenged the validity of several amendments to the Declaration, which imposed a requirement that, effective October 30, 2004, all new owners taking title to property in subdivisions of Defendant lying west of Jog Road, including Bristol Lakes, become members of the Aberdeen Country Club.

After the trial court granted the plaintiffs motion for summary judgment and denied the defendant’s motion for summary judgment, the defendant moved for reconsideration and rehearing. While that motion was pending, the defendant moved to disqualify Judge French. The motion for disqualification was based on the defendant’s becoming aware, on October 3, 2008, of a potential conflict of interest, bias, or prejudice on Judge French’s part, based on Judge French’s involvement with a similar dispute with his own homeowners association in connection with the Hamlet Country Club. The defendant argued that the judge should have disclosed his personal dispute and critical opinions on the matter and disqualified himself. The defendant contended that Judge French had a personal bias and prejudice against homeowners associations with respect to mandatory club memberships, because of his own involvement in a factually similar dispute, and that he had prejudged this matter based on his prejudices and biases.

In support of disqualification, the defendant’s representative, the president of its board of directors, attached two letters written by Judge French to his affidavit. In the first letter, which was addressed to the Hamlet Country Club, Judge French referred to his resignation from the country club board, putting his house up for sale, and his intention “of leaving the community and club forever.” Within the letter, he stated that a bylaw amendment of that club had been passed “to comply "with the promises made by the pro-mandatory forces and the then acting board of directors who were attempting to appease those people including myself who had concerns that the mandatory membership could severely affect the future alienation of our properties.”

In the second letter, which was addressed to the treasurer of Hamlet Country Club, Judge French stated that he had made it clear to the board that its settlement with anti-mandatory forces “would only postpone the day of reckoning regarding the legality of the mandatory vote.” The representative provided details as to when he had become aware that Judge French was in a dispute with the Hamlet Country Club over the status of his membership and the amount he owed for unpaid dues and other charges. The Hamlet Country Club was claiming that Judge French owed it over $39,000. Defendant’s representative believed this potential liability prejudiced Judge French against mandatory club membership for residents of country club communities. He believed Judge French was biased against defendant’s position in the instant litigation and that anyone in defendant’s position would lack confidence in Judge French’s impartiality. After Judge French denied the motion as legally insufficient, the defendant filed this petition for writ of prohibition.

Rule 2.330(f) requires a judge to enter an order granting disqualification if the motion to disqualify is “legally sufficient.” The motion is legally sufficient if it shows the party’s well-grounded fear that the party will not receive a fair trial. See Enter. Leasing Co. v. Jones, 789 So.2d 964, 968 (Fla.2001); Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). It is not a question of what the judge feels, but the feeling in the mind of the party seeking to disqualify and the basis for that feeling. See Goines v. State, 708 So.2d 656, 659 (Fla. 4th DCA 1998) (“[T]he facts underlying the well-grounded fear must be judged from the perspective of the moving party.”), disagreed with on other grounds by Thompson v. State, 949 So.2d 1169 (Fla. 1st DCA 2007), quashed, 990 So.2d 482 (Fla.2008); Wargo v. Wargo, 669 So.2d 1123, 1124 (Fla. 4th DCA 1996). Of course, the party seeking disqualification has the burden of showing that the party has a well-grounded fear of not receiving a fair trial. See Adkins v. Winkler, 592 So.2d 357 (Fla. 1st DCA 1992).

Whether a motion is legally sufficient is a question of law that is reviewed by the appellate court de novo. Barnhill v. State, 834 So.2d 836, 843 (FIa.2002), cert. denied, 539 U.S. 917, 123 S.Ct. 2281, 156 L.Ed.2d 134 (2003); Chillingworth v. State, 846 So.2d 674, 676 (Fla. 4th DCA 2003). If a judge’s prejudice is “predicated on grounds with a modicum of reason,” the judge should promptly recuse. Hayslip v. Douglas, 400 So.2d 553, 555 (Fla. 4th DCA 1981).

Defendant contends Judge French also should have disclosed the foregoing facts himself, as they constitute information which a litigant might believe relevant. He cites Canon 3E(1) of the Florida Code of Judicial Conduct:

A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.

See In re Frank, 753 So.2d 1228, 1238-39 (Fla.2000) (holding that the standard for disclosure is lower than the standard for disqualification). Defendant argues that Judge French’s failure to disclose this information at the outset also militates in favor of his disqualification. Mulligan v. Mulligan, 877 So.2d 791 (Fla. 4th DCA 2004) (granting petition for writ of prohibition, where motion was based in part on judge’s failure to disclose his close friendship with opposing counsel).

We agree that the fact that Judge French’s personal situation aligns him with the plaintiffs position on the primary issue to be determined in this litigation supports his disqualification. Compare Southeast Bank, N.A. v. Capua, 584 So.2d 101 (Fla. 3d DCA) (holding bank was entitled to disqualification of judge who was guarantor of another note given to same bank on which maker defaulted, identical to the note at issue in the litigation, such that judge might find himself in same posture if bank filed action on that note), cause dismissed sub nom. Royal Trust Tower, Ltd. v. Southeast Bank, N.A., 592 So.2d 682 (Fla.1991), and rev. denied, 641 So.2d 1344 (Fla.1994).

We disagree with plaintiffs position that the defendant has alleged only disagreement with an adverse ruling, compare Barwick v. State, 660 So.2d 685, 692 (Fla. 1995), cert. denied, 516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996), receded from on other grounds by Topps v. State, 865 So.2d 1253 (Fla.2004), or a judge’s expression of a personal view of an issue of law that is at issue in the case, compare State ex rel. Gerstein v. Stedman, 233 So.2d 142 (Fla. 3d DCA), opinion adopted, 238 So.2d 615 (Fla.1970); State ex rel. Sagonias v. Bird, 67 So.2d 678 (Fla.1953); Rodgers v. State, 948 So.2d 655, 672-73 (Fla.2006), cert. denied, — U.S. -, 128 S.Ct. 59, 169 L.Ed.2d 50 (2007).

We find that the defendant has shown “an actual factual foundation for the alleged fear of prejudice.” Fischer v. Knuck, 497 So.2d 240, 242 (Fla.1986). There was no need for the defendant to show proof of Judge French’s actual prejudice; it needed to show only a well-founded fear of bias. We conclude that it did so.

Petition Granted.

TAYLOR, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Albertoine NORDELUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2756.
    District Court of Appeal of Florida, Fourth District.
    April 22, 2009.
    Rehearing Denied June 2, 2009.
    Mark Skipper of Mark Skipper, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, Celia Terenzio and August A. Bo-navita, Assistant Attorneys General, West Palm Beach, for appellee.
   On Remand From The Florida Supreme Court

PER CURIAM.

Appellant challenges the trial court’s order summarily denying his motion for posteonvietion relief under rule 3.850. We initially reversed the order, finding that the state had failed to conclusively refute his allegation that his plea to DUI manslaughter was involuntary because neither his attorney nor the trial judge had informed him that his license would be revoked as a result of his conviction. See Nordelus v. State, 889 So.2d 910 (Fla. 4th DCA 2004). We concluded that this was a direct consequence of the plea and thus was something about which a defendant must be advised upon entering a plea. We certified conflict with State v. Bolware, 999 So.2d 660 (Fla. 1st DCA 2003). The supreme court held in Bolware v. State, 995 So.2d 268 (Fla.2008), that revocation of a driver’s license does not constitute punishment and thus is a collateral, not direct, consequence of a plea. It therefore was not ineffective assistance of counsel to fail to advise the defendant of this consequence. The supreme court quashed our opinion and remanded for reconsideration.

Based on Bolware, we thus affirm as to appellant’s first issue.

We reverse, however, on appellant’s second claim, as we did in our prior opinion. He alleged that his plea was also involuntary because counsel misadvised him that the trial court could place him on probation following his plea. He claims that had he known that a prison sentence was mandatory he would not have entered a plea. As we noted in our previous opinion, the state has not conclusively refuted this claim. We reverse for attachment of portions of the record which conclusively refute this claim or for an evidentiary hearing.

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    Charles B. GOLDMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-635.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.
    Rehearing Denied May 20, 2009.

      Charles B. Goldman, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, CORTINAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.850(b); see also State v. Rodriguez, 990 So.2d 600, 607 (Fla. 3d DCA 2008) (“[Neither the trial court nor counsel is required to forewarn a defendant about every conceivable collateral consequence of a plea to criminal charges.”).


text:
    John Richard MASON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-6123.
    District Court of Appeal of Florida, First District.
    April 24, 2009.
    Bernard F. Daley, Jr. of Bernard F. Daley, Jr., P.A., Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

John Richard Mason timely seeks a belated appeal of his judgment and sentence entered on May 22, 2007. In response to an order to show cause, the state indicates that it does not oppose the granting of relief. A timely appeal of the judgment and sentence was taken in case number 1D07-3451. Through no fault directly attributable to petitioner, that appeal was dismissed for failure to respond to the court’s orders requiring payment of the filing fee and requiring petitioner to show cause concerning the timeliness of the notice of appeal. Therefore, the proper remedy is reinstatement of the appeal in case number 1D07-3451 rather than granting a belated appeal.

Accordingly, the appeal in Mason v. State, case number 1D07-3451, is hereby reinstated.

KAHN, DAVIS, and CLARK, JJ., concur.


text:
    In the Interest of T.F., a child. T.F., Appellant, v. Department of Children and Family Services and Guardian ad Litem Program, Appellee.
    No. 2D08-1291.
    District Court of Appeal of Florida, Second District.
    April 29, 2009.

      Jackson S. Flyte, Regional Counsel, Second District, and Robert D. Rosen, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bar-tow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kelley Schaeffer, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Ama N. Appiah, Orlando, for Appellee Guardian ad Litem Program.
   VILLANTI, Judge.

The Mother appeals a final order adjudicating her child dependent. The Department of Children and Family Services and the Guardian ad Litem Program concede that the trial court erred in its order changing the case plan goal from reunification to adoption, but they argue that the issue is moot because the Mother subsequently surrendered her parental rights to the child. We find that the issue is not moot and hold that the trial court abused its discretion by: (1) changing sua sponte the Department’s initial case plan goal from reunification (concurrent with adoption through termination of parental rights) to adoption through termination of parental rights (concurrent with permanent guardianship) and ordering the Department to file a petition for termination of parental rights, (2) changing sua sponte the goal of its dependency order from reunification to adoption, and (3) failing to hold a new arraignment and obtaining the Mother’s knowing and voluntary consent to the dependency petition or failing to hold an adjudicatory hearing. Accordingly, we reverse.

On November 1, 2007, the Department sheltered the nine-year-old child. On November 28, 2007, the Department filed a Petition for Adjudication of Dependency, which stated that the Mother was incarcerated. The Mother, represented by counsel, appeared at the arraignment on January 15, 2008. The trial court, which was aware of the Mother’s incarceration, explained to her that the dependency petition alleged abandonment, “which is just a legal term for saying you haven’t been around taking care of [the child].” The trial court then told the Mother that “[t]he Court is going to give you a case plan and your attorney acknowledged you wanted to start working on that” and “if you don’t do that case plan and finish the sort of things that are related to this case, then your parental rights to [the child] could be terminated altogether.” (Emphasis supplied.) Following this dialogue, the Mother consented to the dependency petition. The trial court specifically approved the Mother’s request to waive her appearance at the disposition hearing so that she would not miss gain time. The request to waive the Mother’s appearance at the disposition hearing was based upon representations that the goal of the case plan was reunification of the Mother and child. Thereafter, the trial court adjudicated the child dependent based upon the Mother’s “knowing, volüntary, and intelligent choice to — [enter] into this consent to resolve this case here today.” A disposition hearing was set for February 1, 2008.

Consistent with the discussions at the arraignment hearing, on January 24, 2008, the Department filed an initial case plan with a stated goal of reunification of the Mother and the child. The Mother reviewed that case plan before the disposition hearing, and therefore, she did not appear at the hearing. More important, the expiration date on the case plan was October 5, 2008. However, at the February 1, 2008, disposition hearing, the trial court questioned why the Mother had received a reunification case plan when she would be incarcerated until 2009, a date after her case plan’s expiration date. The Department’s attorney responded: “Judge ... she’s not going to be — her incarceration is not significant enough for her — to proceed with TPR.” Nevertheless, the court sua sponte stated it would not allow the Mother a reunification plan because “[fit’s just impossible[.]” The court then changed the goal from reunification to adoption, concurrent with permanent guardianship. The trial court subsequently denied the Mother’s motion for rehearing and ordered the Department to file a petition for termination of parental rights. This appeal ensued.

As an initial matter, the Department and the Guardian concede that the trial court improperly changed the stated permanency goal at the disposition hearing. However, they argue that the issue is moot and that this appeal should be dismissed because the Mother subsequently signed surrenders of her parental rights to the child on August 7, 2008. We reject this contention because, as acknowledged by the parties, the Mother filed a motion to withdraw her surrenders of the child. Although her motion to withdraw the surrenders was orally denied, the trial court has not issued a written order reflecting that denial. Hence, the Mother’s time to appeal the order denying her motion to withdraw the surrenders has not expired. See Fla. RApp. P. 9.020(h) (stating that an “order is rendered when a signed, written order is filed with the clerk of the lower tribunal”); Fla. RApp. P. 9.110(b) (stating that the appellate court’s jurisdiction is invoked by filing a notice of appeal within thirty days of rendition of the order appealed). The Mother has indicated that she may appeal the denial of her motion to withdraw the surrenders once she receives a written order. If that were the case, and if her consent to surrender the child is reversed on appeal, her current appeal would be relevant. Therefore, this issue is not moot, and we consider the appeal on the merits.

Section 39.621(2)(b), Florida Statutes (2007), allows adoption as a permanency goal option only “if a petition for termination of parental rights has been or will be filed.” Here, the Department and the Guardian both concede error because a petition for termination of the Mother’s parental rights was not filed. In fact, the trial court chose to second guess the Department’s stated reunification goal, even though the Department stated at the disposition hearing that the Mother’s incarceration was not significant enough to proceed with termination of parental rights. This clearly indicated that the Department had no intention of filing a termination petition. Based on these facts, the trial court abused its discretion by changing the goal from reunification to adoption through termination of parental rights and by ordering the Department to file a petition to terminate the Mother’s parental rights.

Finally, we must point out that the trial court’s actions raised serious due process issues. Florida Rule of Juvenile Procedure 8.325(c) requires the trial court to “determine that any ... consent to a finding of dependency is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of the ... consent.” In this case, it is clear from the record on appeal that the Mother’s consent to the dependency adjudication did not include consent to a case plan with a goal of adoption through the termination of her parental rights. At the arraignment hearing, the parties discussed reunification; adoption was never discussed with the Mother. The trial court told the Mother that she would be receiving a case plan and that her parental rights could be terminated if she did not comply with her case plan. Based on those representations, the Mother consented to the dependency adjudication without an evidentiary hearing, and she waived her appearance at the disposition hearing. The trial court’s unilateral decision at the subsequent disposition hearing to change the case plan goal to adoption through termination of parental rights meant that the Mother’s consent to the dependency adjudication was not knowing and voluntary. At that point, without the Mother’s knowing and voluntary consent, the trial court could adjudicate the child dependent only after an adjudicatory hearing pursuant to section 39.507. See § 39.506(2). Yet, an adjudicatory hearing was not held in this case. Thus, the trial court erred under the facts of this case in addressing a substantive issue without either obtaining the Mother’s knowing and voluntary consent at a new arraignment or holding an adjudicatory hearing.

Reversed and remanded for further proceedings consistent with this opinion.

WALLACE, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Because both the Mother’s and the child’s initials are ’’T.F.” we will refer to them as "the Mother” and "the child” throughout this-opinion.

      . At the arraignment hearing, the Mother stated that she would be incarcerated until March 2009. The Predisposition Study filed with the court on January 25, 2008, stated that the Mother would be incarcerated until May 2009.


author: CIKLIN, J.

text:
    Basil BURFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4272.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Basil Burford appeals his convictions for manslaughter by culpable negligence, vehicular homicide, and fleeing a law enforcement officer. Burford argues that his convictions for manslaughter by culpable negligence and vehicular homicide (which is a lesser included offense of manslaughter by culpable negligence) violate double jeopardy. He further asserts that the trial court erred in denying his motion for new trial based upon the prosecutor’s closing arguments pertaining to Burford’s right to remain silent. We affirm the conviction for manslaughter by culpable negligence but vacate the conviction of vehicular homicide, the lesser of the two offenses. We affirm the denial of his motion for new trial because his objections were not adequately preserved, and, even if they had been, the prosecutor’s remarks were not a comment on the right to silence.

On September 20, 2004 around midnight, Officer Gino Serri was on road patrol in a marked police vehicle when he observed Burford operating an Acura without functioning taillights. Serri activated his lights and attempted to conduct a traffic stop. Burford initially stopped but then abruptly sped off as Officer Serri exited his vehicle. In his effort to elude the officer, Burford ran a red light and struck a pickup truck. The driver of the pickup truck died at the scene from blunt head trauma injuries.

An accident reconstructionist estimated that the Acura was traveling between sixty-four and sixty-six miles per hour in a thirty-five mile per hour speed zone.

The jury found Burford guilty of manslaughter by culpable negligence (count 1), vehicular homicide (count 2), and fleeing a law enforcement officer (count 3). The court adjudicated Burford guilty of all three counts and sentenced him to fifteen years on count 1 and five years on count 3 to run consecutively to count 1. The trial judge held “in abeyance” any sentence as to count 2. Burford appeals.

Double Jeopardy

Vehicular homicide is a lesser included offense of manslaughter by culpable negligence. McCreary v. State, 371 So.2d 1024, 1027 (Fla.1979); State v. Young, 371 So.2d 1029, 1030 (Fla.1979). As such, a defendant may be charged with, but not convicted of, both vehicular homicide and manslaughter for a single death. State v. Lewek, 656 So.2d 268 (Fla. 4th DCA 1995). See also Michelson v. State, 927 So.2d 890, 893-94 (Fla. 4th DCA 2005). A conviction for both vehicular homicide and manslaughter is not harmless error even where a sentence is not imposed for the lesser included offense and the lesser included offense is not scored on the guidelines scoresheet. Werhan v. State, 673 So.2d 550, 553 (Fla. 1st DCA 1996).

In Heck v. State, 966 So.2d 515 (Fla. 4th DCA 2007), this court addressed a similar factual scenario. Heck was convicted of attempted premeditated first-degree murder and attempted first-degree felony murder. The trial court sought to avoid a double jeopardy problem by entering judgment for both convictions and withholding the imposition of sentence for the attempted felony murder conviction. This court held that where there is a single death, dual convictions cannot stand. “Allowing the dual convictions to stand and simply withholding the imposition of sentence for one of the offenses is not ... sufficient to cure the double jeopardy violation as it is ‘the record of appellant’s conviction [that] constitutes the violation of double jeopardy.’ ” Id. at 517 (quoting Florida v. State, 855 So.2d 109, 111 (Fla. 4th DCA 2003) overruled on other grounds, 894 So.2d 941 (Fla.2005)).

For this reason, Burford’s conviction for vehicular homicide must be vacated.

Prosecutorial Comments

Burford claims that the trial court erred in denying his motion for new trial because of comments made by the prosecutor during closing argument. Specifically, he complains about the following two statements:

(1) “You heard no evidence from that stand as to why he [Burford] decided to flee.”
(2) “Now, as far as the, you know, two conflicting stories in this case, which recently came up — ”

The defense lodged no objection to the first comment. As to the second statement, the defense objected and moved to “strike the commentary.” The court sustained the objection and instructed the jury that “[w]hat the lawyers say is not evidence. Use your memory as to what the evidence is here.”

After the jury started deliberations, the defense moved for a mistrial on the grounds that the second comment amounted to an attack on the defendant’s right to remain silent. The court denied the motion.

“A motion for mistrial is directed to the sound discretion of the trial court, and should be granted only when necessary to ensure that the defendant receives a fair trial.” Miles v. State, 839 So.2d 814, 819 (Fla. 4th DCA 2003). “In order to preserve an allegedly improper prosecutorial comment for review, a defendant must object to the comment and move for a mistrial. While a motion for mistrial may be made as late as the end of closing argument, a timely objection must be made in order to allow a curative instruction or admonishment to counsel.” Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999) (citation omitted).

Burford failed to object to the first comment and, therefore, failed to preserve his challenge. Even if it were preserved, we find the comment is not fairly susceptible of being interpreted as a comment on Bur-ford’s right to remain silent. The prosecutor argued to the jury:

Nowhere in here, ladies and gentlemen, and you heard this eluded [sic] to during the trial, does it say I have to prove why Mr. Burford decided to flee the law enforcement officer. The law does not require me to prove why he did that. You heard no evidence from that stand as to why he decided to flee.... I think you would agree that basically is irrelevant for those purposes.

Taken in its context, it is clear that the prosecutor was explaining to the jury the elements that it needed to prove to establish the offense of fleeing a law enforcement officer and clarified that the state did not need to prove why Burford fled.

As to the second comment, the only contemporaneous objection was to the prosecutor’s “commentary.” To be preserved for appellate review, “an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation.” Tillman v. State, 471 So.2d 32, 35 (Fla.1985). The court sustained the objection and gave a curative instruction. It was not until the jury had retired for deliberations that Burford first argued that it was a comment upon his right to remain silent. Burford presented this argument too late. Gutierrez, 731 So.2d at 95. Even if his objection had been preserved, the statement is not fairly susceptible as a comment on the right to silence. Considered in context, the prosecutor was simply responding to the defense’s alternative theory that the driver of the pickup truck — and not Burford — had run the red light. The prosecutor argued that his theory was supported by the evidence and that Burford’s theory was not.

Conclusion

We affirm the conviction and sentence for manslaughter by culpable negligence and fleeing a law enforcement officer. For the reasons stated herein, we remand this case to the trial court with instructions to vacate the conviction for vehicular homicide.

Affirmed in part, reversed in part, and remanded.

POLEN and HAZOURI, JJ., concur.


text:
    Cedric S. DENSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-631.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Rehearing Denied May 19, 2009.
    Cedric S. Denson, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before SHEPHERD, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Harris v. State, 810 So.2d 1093, 1094 (Fla. 5th DCA 2002) (“Score-sheet errors are harmless when the sentence is the result of a negotiated plea.”).


text:
    Jeremy Q. KENT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-604.
    District Court of Appeal of Florida, Fifth District.
    May 1, 2009.
    Jeremy Q. Kent, Punta Gorda, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the rule 3.850 motion in case No. 2005-CF-057249-A in the Circuit Court in and for Brevard County. See Fla. RApp. P. 9.141(c)(5)(D).

PALMER, C.J., MONACO and LAWSON, JJ., concur.


text:
    Terrance MORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-723.
    District Court of Appeal of Florida, Fifth District.
    May 1, 2009.
    Terrance Morris, Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the November 1, 2007 order granting in part and denying in part the rule 3.850 motion in case No. 2003-CF-10242-0 in the Circuit Court in and for Orange County. See Fla. R.App. P. 9.141(c)(5)(D).

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


author: BENTON, J. BROWNING, J.,

text:
    Stanley Oneal MOTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3808.
    District Court of Appeal of Florida, First District.
    May 4, 2009.
    Nancy A. Daniels, Public Defender, Kathleen Stover, Assistant Public Defender, and Laura Anstead, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Stanley O. Moton appeals convictions for armed robbery, aggravated assault by threat with a firearm, and simple battery. He contends that the trial court committed fundamental error in instructing the jury that he could be convicted if the state proved him “and/or Mr. Stallworth” guilty of the crimes.

Mr. Moton and Sammie Lee Stallworth stood trial together as co-defendants. Testimony put them and two other men in the home of Clevette Evans and Christina Murphy when, Ms. Evans testified, she was forced at gunpoint to turn over to one of the men some $1700 she had in a shoebox. She recalled Lortab, but not cocaine, changing hands. Mr. Moton’s sister Sabrina, although she was not there at the time, was a housemate of Ms. Evans and Ms. Murphy.

Mr. Moton, who admitted he was present, denied he took part in the robbery or committed the other crimes of which he was convicted. He testified he had just purchased $60 worth of cocaine from Ms. Evans in another room when a fight broke out between Mr. Stallworth and Anthony Beasley, after which the appellant, Mr. Stallworth and a Mr. Hawkins left.

As our supreme court recently ruled, “the use of the ‘and/or’ instructions was error.” Garzon v. State, 980 So.2d 1038, 1045 (Fla.2008). See Gilley v. State, 996 So.2d 936, 939 (Fla. 2d DCA 2008). Since no contemporaneous objection was lodged, however, we must decide whether the error was fundamental. See Hunter v. State, 8 So.3d 1052, 1062-63, 2008 WL 4352655 (Fla. Sept. 25, 2008); Green v. State, 996 So.2d 911, 912-13 (Fla. 1st DCA 2008) (on remand). Answering this question in the negative in Garzón, the supreme court stated the facts there:

[T]wo individuals forced their way through the Smiths’ front door as their housekeeper was coming in that same door. These individuals, identified by members of the Smith family as Ray Balthazar and Charly Coles, then robbed the Smiths of several items. During the home invasion, one of the perpetrators spoke on a cell phone, as if receiving instructions or guidance in executing the crimes. As the Fourth District explained:
The state’s theory of the case was that Garzón directed the home invasion by his cell phone conversation with Balthazar. Garzón had previous connections with the Smiths. He had been in the Smiths’ home numerous times, working for a man who had built the false wall safe. The state presented evidence of a 39-minute cell phone call at the time of the home invasion; the call originated from Pompano Beach between Balthazar and a cell phone number identified with Garzón.
[Garzon v. State, 939 So.2d 278, 281 (Fla. 4th DCA 2006).]
Balthazar, Coles, and Garzón were all tried before the same jury. Each had separate defense counsel. All three defendants were charged with the same seven crimes: criminal conspiracy, armed burglary of a dwelling, armed robbery, three counts of armed kidnapping, and extortion. After a jury trial, Balthazar was convicted as charged on all counts, and Garzón and Coles were acquitted of extortion and convicted on all other counts.

980 So.2d at 1039-40. The state’s theory was that Garzón was guilty as a principal because he was on the telephone aiding and abetting the other two. The only genuine, disputed issue for the jury was whether Garzón was the person on the telephone with Balthazar. The defense espoused no theory under which the person on the telephone would not be guilty if, as the jury found, those taking his instructions were guilty. As the Fourth District pointed out, moreover:

The jury’s acquittal of Garzón on the extortion count demonstrates that it followed the law on principals and was not misled by the “and/or” conjunction in the extortion instruction. The extortion charge was based on Balthazar’s threat to use the stove to burn Jamie unless her mother led him to the cash hidden in the house. There was no evidence that Balthazar cleared this threat with Gar-zón over the cell phone. Although the jury found Balthazar guilty of extortion, it gave Garzón and Coles the benefit of reasonable doubt.

Garzon, 939 So.2d at 285. See also Barrientos v. State, 1 So.3d 1209, 1220 (Fla. 2d DCA 2009) (acquittal of codefendant “strongly suggests that the jury was not misled by the use of ‘and/or’ with regard to the charge of possession of cannabis”). In contrast, the circumstances of the present case admit of the possibility that the jury convicted Mr. Moton under the erroneous “and/or” instructions. The jury had to decide whether or not Mr. Moton was guilty, Mr. Stallworth’s guilt notwithstanding. This issue was genuinely disputed. Mr. Moton testified that he was present, but for another purpose, and that he was not involved in the crimes for which he— and Mr. Stallworth — were convicted. In contrast with Garzón and Barrientos, the codefendant here, Mr. Stallworth, was not acquitted on any count.

Under the “and/or” instructions, the jury could have found Mr. Moton guilty on the basis of Mr. Stallworth’s conduct alone. Although failing to instruct accurately “on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal,” State v. Delva, 575 So.2d 643, 645 (Fla.1991), the rule is otherwise when the mi-sinstruction pertains to a genuinely disputed issue. Both Ms. Evans and Ms. Murphy implicated Mr. Moton at trial, but he testified to a different version of events under which he would not have been guilty unless deemed vicariously, criminally responsible for Mr. Stallworth’s conduct. Our supreme court has said that “whether the evidence of guilt is overwhelming or whether the prosecutor has or has not made an inaccurate instruction a feature of the prosecution’s argument are not germane to whether the error is fundamental.” Reed v. State, 837 So.2d 366, 369 (Fla.2002). While the supreme court has now made it clear that the whole context must be considered, Garzon, 980 So.2d at 1041, the dispositive question remains whether (in the context of the whole case) the inaccurate instruction was “pertinent or material to what the jury must consider in order to convict.” Stewart v. State, 420 So.2d 862, 863 (Fla.1982) (quoted with approval in Reed, 837 So.2d at 369). The inaccurate instruction was pertinent in the present case.

Reversed and remanded.

WOLF, J., concurs; BROWNING, J., dissents with separate opinion.

BROWNING, J.,

dissents.

I respectfully dissent, because I view Garzón as controlling here. There is clear error, but I do not think it is so egregious as to constitute fundamental error; the facts here are too similar to those in Gar-zón to make that determination. Accordingly, I would affirm and leave the question of Appellant’s prejudice from his counsel’s failure to make what is a routine objection to relief under Florida Rules of Criminal Procedure 3.850.

      . The extortion charge stemmed from a spontaneous threat that Balthazar made during the June 4 home invasion to burn the Smiths’ daughter unless her mother gave him cash hidden in the house.


text:
    Felix Antonio ORELLANA, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3292.
    District Court of Appeal of Florida, First District.
    May 4, 2009.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. The appellant’s motion, timely filed pursuant to State v. Green, 944 So.2d 208, (Fla.2006), alleges that the trial court did not inform the appellant of the possibility of deportation. Because the trial transcripts are no longer available, the lower court relied on a written plea agreement in summarily denying the appellant’s claim. Where an appellant alleges that the trial court did not inform the appellant of the possible deportation consequences of a plea, a written plea agreement is no substitute for a plea colloquy. See Perriello v. State, 684 So.2d 258, 259-60 (Fla. 4th DCA 1996).

Because the record now before us fails to conclusively refute the appellant’s claim, we reverse the order and remand for further proceedings.

REVERSED AND REMANDED for further proceedings.

WOLF, KAHN, and VAN NORTWICK, JJ., concur.


text:
    Anthony HARDY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3431.
    District Court of Appeal of Florida, First District.
    May 4, 2009.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The State concedes the sentencing court erred in imposing life sentences for appellant Anthony Hardy’s convictions for attempted felony murder. The State’s concession of error is both professional and correct. A sentencing court may not reclassify attempted felony murder, a first-degree felony, as a life felony on the basis of the defendant’s use of a firearm, when firearm use is an essential element of the underlying felony, as it was here. See Traylor v. State, 785 So.2d 1179, 1181 (Fla.2000). Accordingly, the case is remanded for resentencing with respect to appellant’s attempted felony murder convictions.

REVERSED and REMANDED.

KAHN, THOMAS, and ROBERTS, JJ., concur.


text:
    Kevin Earl TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0047.
    District Court of Appeal of Florida, First District.
    May 4, 2009.
    Kevin Earl Taylor, pro se, Petitioner.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the May 9, 2007, judgment and sentence in Okaloosa County Circuit Court case numbers 04-CF-1770, 04-CF-1771, 04-CF-1903, 05-CF-0155, 06-CF-1837, 06-CF-2234 and 06-CF-2236. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ALLEN, DAVIS, and BROWNING, JJ., concur.


text:
    James L. MURPHY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0185.
    District Court of Appeal of Florida, First District.
    May 4, 2009.
    James L. Murphy, pro se, Petitioner.
    Bill McCollum, Attorney General, and Giselle Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the May 27, 2008, order dismissing the rule 3.850 motion in Taylor County Circuit Court case number 99-02-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

ALLEN, DAVIS, and BROWNING, JJ., concur.


author: COPE, J.

text:
    Luis JUEGA, Administrator, on behalf of the ESTATE OF Simon DAVIDSON, Deceased, Appellant, v. Stanley S. DAVIDSON, Individually and as Trustee of the Stanley S. Davidson Trust, Appellee.
    No. 3D05-2785.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    William L. Richey; Ferrell Law, P.A., and H. Eugene Lindsey, for appellant.
    Arthur W. Tifford, for appellee.
    Before COPE, WELLS  and LAGOA, JJ.

       Judge Wells did not hear oral argument, but participated in the decision.

   On Reheating Granted Revised Opinion

COPE, J.

On consideration of the appellant’s motion for rehearing, we grant the motion, withdraw the court’s previous opinion, and substitute the following opinion.

This is an appeal of a dismissal order under Florida Rule of Civil Procedure 1.210(a), Florida’s real party in interest rule. Because the plaintiff is an agent who had been granted full authority to act for the real party in interest, there was no violation of Rule 1.210(a), and the dismissal order must be reversed.

I.

Simon Davidson died testate in Spain in 1991, leaving behind a son, Allan Davidson and a brother, Stanley Davidson. Luis Juega was appointed administrator of the estate by the Spanish court.

Juega alleges that prior to the decedent’s death, Nozomi Finance International Limited loaned the decedent’s brother five million dollars secured by a mortgage on the brother’s real estate located in Miami-Dade County. Juega asserts that the decedent was the director of Nozomi. It is alleged that after the decedent’s death Mr. Juega became a director of Nozomi, which was an asset of the decedent’s estate.

In 1994, Nozomi filed suit against the decedent’s brother in Miami-Dade County seeking repayment of the note and foreclosure on the property securing the note. In 1995, Juega, as estate administrator, joined as a plaintiff in Nozomi’s lawsuit, and asserted additional claims on behalf of the estate for conversion and civil theft.

In 2003, the Spanish court entered an order closing the decedent’s estate and finding the son to be his father’s sole heir. When the estate was closed in Spain, Jue-ga was discharged from his responsibilities as administrator.

Thereafter Juega filed a fourth amended complaint in the Nozomi litigation. The decedent’s brother moved to dismiss on the ground, among others, that Juega lacked standing to pursue the litigation. The brother argued that once the Spanish estate was closed and Juega no longer was the estate administrator, Juega was not the real party in interest for purposes of Florida Rule of Civil Procedure 1.210(a), Florida’s real party in interest rule. The motion argued that the real party in interest was the decedent’s son, as the decedent’s sole heir.

The son filed an affidavit in opposition to the motion, and in support of Juega’s standing. The son’s affidavit stated that Juega was pursuing the litigation for the son’s benefit and ratified all actions taken by Juega since the inception of the lawsuit. The affidavit said:

1. My name is Allan Davidson. I am over 18 years old and sui juris. My father, Simon Davidson, passed away on February 15,1991.
2. By final judgment dated November 2, 1992, issued by the Spanish Court ... in Marbella, Spain, case no. 200/19, I was declared sole heir of my deceased father....
6. In November 1995 (Second Amended Complaint), Mr. Juega, as nominal plaintiff for the Estate and its heir, who at the time had been declared to be me (later confirmed by the court of appeal in Malaga), joined the above-styled action. As the sole heir of the Estate of Simon Davidson, as the owner of all assets of the Estate pursuant to the inventory and discharge of Mr. Jue-ga as administrator, and as the only real party in interest in this lawsuit, I hereby ratify each action taken by Mr. Juega in the prosecution of this claim against the Defendants and do agree and ratify each action taken at the time taken, or shortly after the time each action was taken. Mr. Juega is acting as my agent in prosecuting this action on my behalf. I have authorized Mr. Juega to prosecute and proceed in whatever manner, method of practice he deems appropriate in pursuing this action in this matter on my behalf.
7. I agree that, as the real party in interest and principal of Mr. Juega, I agree to be legally bound by any action taken to judgment in this case.

(Emphasis added).

The trial court accepted the argument i hat once Juega ceased being the administrator of the estate, he lost standing under Rule 1.210(a). The trial court dismissed Juega from the lawsuit and this appeal ensued.

II.

The question before us is whether Mr. Juega, as authorized agent of the heir, has standing to proceed as a plaintiff in the civil action pending in the trial court. The answer is yes.

Florida’s real party in interest rule “is permissive only....” Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178, 1184 (Fla. 3d DCA 1985). The rule states:

Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.

Fla. R. Civ. P. 1.210(a) (emphasis added).

“[A] nominal party, such as an agent, may bring suit in its own name for the benefit of the real party in interest.” Kumar, 462 So.2d at 1185 (emphasis added). “[A] principal may subsequently ratify its agent’s act, even if originally unauthorized, and such ratification relates back and supplies the original authority.” Id.

“Thus, where a plaintiff is either the real party in interest or is maintaining the action on behalf of the real party in interest, its action cannot be terminated on the ground that it lacks standing.” Id. at 1183; see Mortgage Elec. Registration Sys., Inc. v. Revoredo, 955 So.2d 33, 34 (Fla. 3d DCA 2007) (collection and litigation agent has standing to bring mortgage foreclosure action); Eastern Inv., LLC v. Cyberfile, Inc., 947 So.2d 630, 632 (Fla. 3d DCA 2007) (action may be maintained by assignee; “Florida Rule of Civil Procedure 1.210(a) permits an action to be prosecuted in the name of someone other than, but acting for the real party in interest.”)

The affidavit filed by the son in this case is indistinguishable from the affidavit filed by the principal in Kumar. Kumar, 462 So.2d at 1181. The facts stated in the Kumar affidavit, as here, establish that the agent, Juega, has standing.

We reverse the dismissal order and remand for further proceedings consistent herewith.

       The decedent's brother contends that the loan has been satisfied, while Nozomi contends that it has not.


text:
    Consuelo A. AGUILA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D08-993.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Consuelo A. Aguila, in proper person.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for appellee, Unemployment Appeals Commission.
    Before GERSTEN, C.J., and RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See DeJesus v. Riconed, Inc., 741 So.2d 642 (Fla. 3d DCA 1999).


text:
    Anthony JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2279.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTINAS and SALTER, JJ.
   PER CURIAM.

Affirmed. See Parker v. State, 641 So.2d 488 (Fla. 5th DCA 1994).


text:
    Giancarlo FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-294.
    District Court of Appeal of Florida, Fourth District.
    May 6, 2009.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Giancarlo Fernandez appeals his conviction and sentence for burglary of an occupied dwelling with assault or battery. Fernandez raises two issues on appeal. The first we affirm without discussion on the basis of Ferguson v. State, 417 So.2d 639 (Fla.1982). As to the second issue— that the trial court reversibly erred by permitting a lay witness to provide expert testimony regarding a shoe print left at the scene — we affirm because established Florida law has determined that such testimony may be presented by a lay witness. See Irvin v. State, 66 So.2d 288 (Fla.1953); White v. State, 375 So.2d 622 (Fla. 4th DCA 1979.)

POLEN, HAZOURI and CIKLIN, JJ., concur.