text:
    B.H. v. STATE of Alabama.
    CR-09-1884.
    Court of Criminal Appeals of Alabama.
    April 29, 2011.

      Christy MaCain Taul, Birmingham, for appellant.
    Troy King and Luther Strange, attys. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
   KELLUM, Judge.

Delinquency petitions were filed in the Juvenile Court of Jefferson County, charging the appellant, B.H., a 16-year-old male, with 6 counts of unlawful breaking and entering a vehicle, violations of § 13A-8-11, Ala.Code 1975, and 2 counts of first-degree theft of property, violations of § 13A-8-3, Ala.Code 1975. The juvenile court found four of the six charges of unlawful breaking and entering a vehicle to be true, both charges of first-degree theft to be true, and adjudicated B.H. delinquent. The juvenile court issued a written order remanding B.H. to the custody of the Alabama Department of Youth Services. This appeal followed.

The evidence presented at trial established the following pertinent facts. On July 19, 2010, Officer Richard Haluska, an officer with the City of Birmingham Police Department (“BPD”), received a dispatch around midnight advising him that five young black males had just been seen getting out of a silver Pontiac Grand Am automobile parked on Haygood Street in Birmingham. Officer Haluska located the Grand Am on Haygood Street, noted that there was no damage to the vehicle, recorded the license-plate number, ran the vehicle-identification number (“VIN”), and learned that the vehicle had not been reported stolen. On the morning of July 20, 2010, Officer Haluska, who was then off duty, saw the silver Grand Am pull up to a four-way stop at the intersection of Red Mill Road and Lawson Road in Birmingham. At that point, the Grand Am had been reported stolen.

As Officer Haluska began to follow the Grand Am in his personal vehicle, a black Ford Fusion automobile cut him off and pulled behind the Grand Am. Officer Ha-luska radioed the police dispatcher, informing dispatch that he was following the Grand Am that he had observed earlier. Officer Haluska also reported the license-plate number of the Ford Fusion directly in front of him. The Ford Fusion had not been reported stolen at the time, but another police unit was searching for the stolen Grand Am when Officer Haluska notified the police dispatcher. Officer Ha-luska testified that he was able to see the driver of the Ford Fusion while the vehicles were stopped at the intersection, and at trial he identified B.H. as the driver of the Ford Fusion. Officer Haluska explained that he eventually positioned himself between the Ford Fusion and the Grand Am as the three cars drove away. In the process, Officer Haluska pulled aside the Ford Fusion, at which time he had another opportunity to look at the driver and the front-seat passenger. After a short while, the Ford Fusion sped off and Officer Haluska continued to follow the Grand Am. Eventually, a marked police car arrived on the scene, and the Grand Am attempted to flee but wrecked in the process.

While he was assisting the officers in detaining the suspect in the Grand Am, Officer Haluska saw B.H. and three other young black males walking down the street. Officer Haluska recognized B.H. and one of the other males as the driver and the front-seat passenger in the Ford Fusion. Officer Haluska testified that approximately seven minutes had elapsed between his last seeing the Ford Fusion and his observing the young men walk toward the scene of the accident. During that time, Officer Haluska had learned that the Ford Fusion had also been stolen. The officers found the Ford Fusion in the parking lot of a church approximately three quarters of a mile to one mile from the scene of the accident.

BPD Detective Cedric Thomas testified that he took statements from four of the five defendants apprehended in connection with the car thefts and break-ins; only B.H. declined to make a statement. Detective Thomas also took statements from the victims in this case and explained that it was his understanding that no defendant had the permission of any owner to enter the owner’s vehicle. Detective Thomas testified that mainly electronic devices were taken from the vehicles, including global-positioning-system (“GPS”) devices, portable music devices (e.g., an iPod), and laptop computers. Detective Thomas also testified that no forensic examinations, such as fingerprinting or DNA analysis, were conducted in connection with the break-ins.

Nissalke Pulliam testified that she lived on Camilla Road in Birmingham and that her 1999 GMC Suburban KC-10 sport-utility vehicle was broken into on the night of July 19, 2010, or in the early morning of July 20, 2010. Two full bottles of Gatorade sports drink were taken from Pul-liam’s vehicle. After Pulliam telephoned police to report the break-in, she drove around her neighborhood. Pulliam saw a group of young men, four to six in number, walking around the neighborhood. Pul-liam believed that they had just finished playing basketball. Pulliam also testified that she did not know B.H. and had never seen him before trial.

Susan Riggins testified that she lived on Dogwood Lane in Birmingham and that her 1999 Lexus RX-300 sport-utility vehicle was broken into on the night of July 19, 2010. Riggins explained that a DVD player, a Bible, and a Bible cover were all taken from the vehicle. Riggins also testified that she had never seen B.H. before trial and that she did not see him near her vehicle on the night in question.

Clifford Burns testified that he lived on Freda Jane Lane in Birmingham and that his 2000 Pontiac Grand Am was stolen from the driveway of his house on the night of July 19, 2010. Burns did not see who stole the vehicle. Burns also testified that he did not know B.H. and that he had never given B.H. permission to take his vehicle.

Chad Hill testified that he lived on Regal Avenue in Birmingham and that his company vehicle, a black 2010 Ford Fusion, was stolen on the night of July 19, 2010. Hill testified that he did not see who stole his car, that he had never seen B.H. before trial, and that he had never given B.H. permission to take his vehicle.

J.H. testified that he was with B.H. on the night of July 19 and 20, 2010, and that he was involved with a number of vehicle break-ins and thefts that evening. J.H. testified that B.H. picked him up from his house in a silver vehicle and explained that he, B.H., and two other boys, C.H. and W.H., were driving around the neighborhood looking for vehicles to “pull on” — i.e., break into — or steal. J.H. explained that they broke into approximately 8 or 9 cars in the Sunrise East neighborhood of the Center Point area of Birmingham, that B.H. was present the entire time, and that B.H. broke into some of the vehicles. J.H. claimed that at times the boys broke up into pairs or individually went and “pulled on” vehicles, but he was aware the others were breaking into other vehicles when they were not present. J.H. testified that he stole only an “mp3 player” from one of the vehicles. J.H. admitted that he broke into the Ford Fusion, found the keys, and stole the vehicle.

J.H. testified that he was hanging out with B.H., C.H., and W.H. when D.T. wrecked the Grand Am, the same car J.H. said B.H. was driving when J.H. was picked up earlier in the evening. According to J.H., the four had gone to a store and were hanging out near an abandoned house at the time D.T. wrecked the Grand Am. J.H. testified that he had not been with B.H. immediately before he, B.H., C.H., and W.H. went to the store. J.H. explained that B.H. never drove “the black car” — i.e., the Ford Fusion. J.H. also testified that W.H. told him that the silver Pontiac Grand Am was stolen and that B.H. was present for this conversation.

C.H., one of the boys involved in the break-ins and thefts, also testified at trial. C.H. testified that B.H. did not drive the silver Pontiac Grand Am but that B.H. did drive the black Ford Fusion. C.H. explained that he, B.H., J.H., D.T., and W.H. all pulled on vehicle doors on the night in question, and he said that he himself pulled on about six car doors. C.H. testified that the five of them were together when D.T. pulled on the door of the silver Pontiac Grand Am and found the keys. C.H. also testified that D.T. drove the silver Pontiac Grand Am and that B.H. rode with him, but he also explained that the five of them, including B.H., took turns driving the vehicle. C.H. explained that they stole an iPod and a Dell brand laptop computer from the vehicles. C.H. explained that he, B.H., W.H., and D.T. were present when they found the Grand Am on Freda Jane Lane and stole it. C.H. reiterated that B.H. and every young man involved took turns driving the Grand Am.

C.H. remembered “pulling on” a 2005 Toyota Highlander and that B.H. was with them at that point. C.H. also remembered “pulling on” a 1999 GMC K-1500 truck, but he stated that B.H. was with D.T. at that point in time. C.H. recalled “pulling on” a 2003 Chevrolet Tahoe, but he explained that B.H. had gone home at that point. C.H. testified that he did not recall “pulling on” a 1999 Lexus RX-300, a 2000 Ford F-350 truck, or a 2009 GMC Yukon. C.H. did see B.H. driving the black Ford Fusion that night.

At the close of the State’s case, B.H. made a motion for a judgment of acquittal in the cases asserting unlawful breaking and entering a vehicle — case no. JU-10-52026, involving the 2004 Ford F-350 truck; case no. JU-10-52041, involving the 2009 GMC Yukon; case no. JU-10-51918, involving the 2005 Toyota Highlander; case no. JU-10-51909, involving the 2003 Chevrolet Tahoe; case no. JU-10-51912; and case no. JU-10-51911. Specifically, B.H. argued that the State failed to present any evidence that any crime was committed as to those vehicles. B.H. made the same motion regarding the theft charges. The court granted the motions for a judgment of acquittal in case no. JU-10-52026, involving the Ford F-350, and case no. JU-10-51911.

After B.H. rested and both sides gave closing arguments, the juvenile court found to be true the four remaining unlawful-breaking-and-entering-a-vehicle charges — i.e., those involving the Chevrolet Tahoe, the GMC Yukon, the Toyota Highlander, and the Lexus RX-300 — and also found to be true the two counts of first-degree theft of the Ford Fusion and the Pontiac Grand Am. This appeal ensued.

I.

On appeal, B.H. raises various claims regarding the denial of his motion for a judgment of acquittal with respect to the four remaining charges of unlawful breaking and entering a vehicle involving the 2003 Chevrolet Tahoe, the 2005 Toyota Highlander, the 1999 Lexus RX-300, and the 2009 GMC Yukon.

“Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).”

Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). See R.L.L. v. State, 564 So.2d 474, 476 (Ala.Crim.App.1990); C.D.U. v. State, 552 So.2d 178, 180 (Ala.Crim.App.1989) (“When evidence is presented ore tenus, the court’s decision must be given every reasonable presumption and we will not overturn its finding ‘if it was supported by credible evidence unless it was palpably wrong.’ Department of Human Resources v. Middleton, 519 So.2d 540 (Ala.Civ.App.1987).”).

“ ‘Section 12-15-65(e), Ala.Code 1975, requires that an adjudication of delinquency be supported by “proof beyond a reasonable doubt, based on competent, material[,] and relevant evidence.” The credibility of witnesses and the truthfulness of testimony in delinquency proceedings is for the trier of fact to determine. C.T.L. v. State, 599 So.2d 94 (Ala.Crim.App.1992). Furthermore, in resolving questions of sufficiency of the evidence, this court must view the evidence in the light most favorable to the state. Id.’”

R.B.H. v. State, 762 So.2d 382, 383 (Ala.Crim.App.1999), quoting A.A.G. v. State, 668 So.2d 122, 124 (Ala.Crim.App.1995).

Section 13A-8-11, Ala.Code 1975, provides, in relevant part:

“(b) A person commits the crime of unlawful breaking and entering a vehicle if, without, the consent of the owner, he breaks into and enters a vehicle or any part of a vehicle with the intent to commit a felony or theft. For the purposes of this section, ‘enters’ mean to intrude:
“(1) Any part of the body; or
“(2) any physical object connected with the body.”

Under current Alabama law, there is no distinction between principals and accessories. See, e.g., Faircloth v. State, 471 So.2d 485, 489 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985) (“Alabama Code § 13A-2-23 (1975) continues the long recognized abolition of the distinction between principals and accessories in Alabama”). As we noted in Peraita v. State, 897 So.2d 1161 (Ala.Crim.App.2003):

“Alabama’s accomplice liability statute provides:
“ ‘A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“ ‘(2) He aids or abets such other person in committing the offense.... ’
“§ 13A-2-23, Ala.Code 1975.
‘“The words “aid and abet” encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary. Wright [v. State, 494 So.2d 936 (Ala.Crim.App.1986)]; Sanders v. State, 423 So.2d 348 (Ala.Cr.App.1982). Actual participation in the crime need not be proved by positive testimony to convict someone of aiding and abetting. “The jury is to determine whether the appellant’s participation exists and the extent of it from the conduct of the parties and all the testimony presented.” Walls v. State, 378 So.2d 1186, 1191 (Ala.Cr.App.1979), cert. denied, Ex parte Walls, 378 So.2d 1193 (Ala.1980). Such facts as the defendant’s presence in connection with his companionship, and his conduct at, before and after the commission of the act, are potent circumstances from which participation may be inferred.’
“Henry v. State, 555 So.2d 768, 769 (Ala.Crim.App.1989).
“ ‘Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether or not the one so contributing is present, brings the accused within the statute that makes any person concerned in the commission of a felony, directly or indirectly, a principal.... No particular acts are necessary to make one an aider and abettor; the common enterprise or adventure may have been entered into on the spur of the moment without prearrangement or participation.’
“Scott v. State, 374 So.2d 316, 318-19 (Ala.1979).”

897 So.2d at 1210.

With these principles in mind, we turn to B.H.’s various challenges to the sufficiency of the State’s unlawful-breaking- and-entering-a-vehicle cases.

A.

B.H. argues that the juvenile court erred in failing to grant his motion for a judgment of acquittal with respect to the unlawful-breaking-and-entering-a-vehicle charges involving the 2003 Chevrolet Tahoe and the 2005 Toyota Highlander. Specifically, B.H. contends that no evidence was presented that either the Tahoe or the Highlander was broken into or that B.H. was present at the time either vehicle was broken into.

At the close of the trial, the juvenile court found true the charges that B.H. had unlawfully broken into the Chevrolet Tahoe and the Toyota Highlander, and it explained:

“THE COURT: Just for the record, I was able to assess the testimony especially of the two codefendants in this case. And while I found a part of their testimony to be not credible, I did find a part to be very credible ... For the [unlawful-breaking-and-entering-a-vehicle charge] for the Chevy Tahoe, I’m finding it true based on the testimony that I heard from the codefendants. I think it’s pretty clear that the gentlemen while maybe not standing on top of each other right behind, right in front of or right beside each other the entire time were certainly acting in concert. So, as to the UBEV on the 2009 GMC Yukon, I’m finding it true. As to the UBEV on the 2005 Toyota, I’m finding it true. As to the [unlawful-breaking-and-entering-a-vehicle charge] on the '99 Lexus RX-300, I’m finding it true.”

(R. 87-88.)

Here, evidence was presented that B.H. was with both J.H. and C.H. along with two others on the night of July 19-20, 2010, and that they perpetrated a number of break-ins to vehicles in Birmingham. The juvenile court heard testimony from both J.H. and C.H. that B.H., as well as the others, “pulled on” vehicles that night. The juvenile court also heard testimony from J.H. and C.H. that B.H. drove both vehicles that were stolen on that night. C.H. also admitted that he remembered breaking into a Chevrolet Tahoe and a Toyota Highlander. C.H. specifically remembered B.H. being present for the break-in of the Toyota Highlander; however, C.H. stated that he did not recall B.H. being present when he broke into the Chevrolet Tahoe. It is apparent that the juvenile court did not clearly err in determining that B.H., J.H., C.H., and other young men were working in concert when they broke into vehicles in Birmingham on the night in question. Accordingly, the State presented sufficient evidence to support “true” verdicts for the delinquency petitions involving the unlawful breaking and entering of the 2003 Chevrolet Tahoe and the 2005 Toyota Highlander. Accordingly, the juvenile court did not err in denying B.H.’s motions for a judgment of acquittal as to those two charges.

B.

B.H. also argues on appeal that the State failed to present sufficient evidence tending to corroborate his accomplices’ statements regarding his involvement in the offenses. Specifically B.H. argues that the State failed to satisfy the requirements of § 12-21-222, Ala.Code 1975. At the conclusion of the State’s case, B.H. made a motion for judgment of acquittal on all charges. Counsel for B.H. argued:

“Also, further on these cases, I would ask that you grant a motion for judgment of acquittal on all eight cases because of the inconsistent statements, the lack of evidence, the lack of prima facie evidence. Just really the inconsistent statements. We can’t get any kind of consensus on any of these cases.”

(R. 86.)

B.H. did not raise the issue of corroboration of the accomplice testimony at any point during the trial or during the discussion of his motions for a judgment of acquittal. Rather, he raised this argument for the first time here on appeal. Therefore, it is not properly before this Court. See Marks v. State, 20 So.3d 166, 172 (Ala.Crim.App.2008) (holding that “a motion for a judgment of acquittal that challenges the sufficiency of the evidence only generally, i.e., that the State failed to prove a prima facie case or words to that effect, does not preserve for review the specific claim that an accomplice’s testimony was not sufficiently corroborated”); Perkins v. State, 715 So.2d 888 (Ala.Crim.App.1997); and Brown v. State, 645 So.2d 309 (Ala.Crim.App.1994). .

Moreover, this Court has recognized that § 12-21-222 does not apply to juvenile adjudications. See, e.g., Ex parte T.B., 698 So.2d 127, 129 (Ala.1997) (“Because the clear language of § 12-21-222 limits its corroboration requirement to felony convictions, all other adjudications, including youthful offender adjudications, are excluded from its effect.”); Woodberry v. State, 497 So.2d 587 (Ala.Crim.App.1986) (“We are unwilling to impose the requirement of corroboration in a delinquency adjudication in view of the fact that such additional proof is neither required by statute nor by rule of the Supreme Court”) Thus, even if B.H. had presented this argument in a timely fashion, it would not have entitled him to any relief. Accordingly, the juvenile court did not err in denying his motion for judgment of acquittal on the ground that the State failed to corroborate J.H.’s and C.H.’s testimony.

C.

B.H. also argues that the juvenile court erred in failing to grant his motion for judgment of acquittal with respect to the charge of unlawfully breaking and entering the 1999 Lexus RX-300 sport-utility vehicle. Specifically, B.H. argued that although the owner of the Lexus testified that her vehicle was broken into on the evening in question, the State failed to present evidence that B.H. or one of his accomplices broke into the Lexus.

At trial, Susan Riggins testified that her 1999 Lexus RX-300 was broken into and that someone stole a DVD player, a Bible, and a Bible cover from her vehicle. She did not see who broke into her vehicle. C.H. testified that he did not remember “pulling on” a 1999 Lexus RX-300 on the night in question, but he did testify that he and his accomplices were looking to steal electronic devices from the vehicles they were breaking into. The break-in occurred in a neighborhood near to where two of the other break-ins took place.

In Bradford v. State, 948 So.2d 574 (Ala.Crim.App.2006), this Court explained:

“ ‘In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).
“ ‘ “[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):
“ ‘ “ ‘Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 821 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry’s words, the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.” Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied).’
“ ‘ “The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is [to] examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged.” McGlamory, 441 F.2d at 135 and 136.’ ”

948 So.2d at 578-79, quoting Cumbo v. State, 368 So.2d 871, 874 (Ala.Crim.App.1978).

Because this was a bench trial, we give substantial deference to the juvenile court’s weighing of the facts. Although C.H. said that he did not remember “pulling on” the 1999 Lexus RX-300, the juvenile court indicated that it did not believe portions of J.H.’s and C.H.’s testimony. Riggins testified that her Lexus was broken into on the night in question and that no one had permission to enter her vehicle. She also testified to seeing a group of young men who, she thought, looked as though they had just finished playing basketball. C.H. testified that he and the other young men had been playing basketball that night. C.H. also admitted that he and his accomplices were looking to steal electronic devices from the vehicles they broke into. Thus, we cannot say that the juvenile court’s adjudication as to this count was clearly erroneous. Accordingly, the juvenile court did not err by denying B.H.’s motion for a judgment of acquittal with respect to the charge of unlawfully breaking and entering the 1999 Lexus RX-300.

D.

B.H. also argues that the juvenile court erred in denying his motion for a judgment of acquittal as to the charge of unlawfully breaking and entering the 2009 GMC Yukon sport-utility vehicle. Specifically, B.H. contends that no witness claimed ownership of the Yukon and that neither he nor his accomplices admitted that they “pulled on” the Yukon on the night in question.

The State concedes that the juvenile court erred in denying B.H.’s motion for a judgment of acquittal with respect to this charge. As our Supreme Court noted in Hill v. State, 207 Ala. 444, 446, 93 So. 460, 461 (1922):

“In every criminal prosecution the burden is on the state to prove beyond a reasonable doubt that the crime charged has been in fact committed, and that the accused is the person who committed it. Winslow v. State, 76 Ala. 42, 47 [ (1884) ]; Smith v. State, 133 Ala. 145, 150, 31 So. 806, 91 Am.St.Rep. 21 [ (1902) ]; Perry v. State, 155 Ala. 93, 46 So. 470 [ (1908) ]; Sanders v. State, 167 Ala. 85, 52 So. 417, 28 L.R.A.(N.S.), 536 [(1910)].”

After reviewing the record, we find that the State failed to present any evidence regarding this offense. No victim came forward to testify that he or she owned a 2009 GMC Yukon that was broken into on the night in question. Neither police officer mentioned anything about the Yukon. C.H. testified that he did not remember “pulling on” any Yukon on the night in question. Thus, the State has failed to produce any evidence indicating that B.H. or his accomplices unlawfully broke into and entered a 2009 GMC Yukon. Accordingly, the juvenile court erred in failing to grant B.H.’s motion for a judgment of acquittal with respect to the charge of unlawfully breaking and entering the 2009 GMC Yukon.

II.

B.H. argues that the juvenile court erred in failing to grant his motion for a judgment of acquittal with respect to the first-degree theft charge involving the Pontiac Grand Am. Specifically, B.H. contends that the State presented only conflicting accomplice testimony regarding whether B.H. ever drove the Grand Am and, further, that none of the evidence presented by J.H. was corroborated in any form or fashion, as required by § 12-21-222.

With respect to B.H.’s claim that the State failed to present evidence tending to corroborate J.H.’s testimony that B.H. was driving the silver Grand Am when he picked up J.H., we note that B.H. presents this argument for the first time on appeal. Thus, as discussed in Part I.B., this claim is not properly before this Court for review. As was further discussed in Part I.B., even if B.H. had properly raised this issue at trial, he would not be entitled to any relief. See Ex parte T.B., 698 So.2d at 129.

In any event, the juvenile court heard ample evidence to support the conclusion that B.H. participated in the theft of the Grand Am. Clifford Burns testified that the silver Grand Am was stolen from his driveway on the night in question. J.H. testified that B.H. picked him up from his house in a silver car and later admitted that the silver car was, in fact, the silver Pontiac Grand Am. When the juvenile court questioned C.H. about how they came to steal the Grand Am, C.H. admitted that B.H. was present when the group found the keys to and stole the Grand Am. Additionally, although he originally testified that B.H. did not drive the Grand Am, C.H. admitted that all the young men drove the Grand Am. Furthermore, Officer Haluska’s description of the events surrounding his following the black Ford Fusion, which he testified was being driven by B.H., and the silver Grand Am, which he knew was stolen at the time he began to pursue it, gave rise to the inference that B.H. participated in, or was an accomplice to, the theft of the silver Grand Am. Thus, it is clear that the State presented ample evidence upon which the juvenile court could have found true the first-degree theft charge alleging that B.H. committed theft of the silver Pontiac Grand Am. Accordingly, the juvenile court did not err in denying B.H.’s motion for a judgment of acquittal on this charge.

Conclusion

Based on the foregoing, the judgment of the juvenile court is due to be, and is hereby, affirmed with respect to case no. JU-10-51909 (the unlawful breaking and entering of the 2008 Chevrolet Tahoe), case no. JU-10-51912 (the unlawful breaking and entering of the 1999 Lexus RX-300), case no. JU-10-51918 (the unlawful breaking and entering of the 2005 Toyota Highlander), and case no. JU-10-51915 (the first-degree theft of the 2000 Pontiac Grand Am). However, we reverse the adjudication of delinquency as to case no. JU-10-52041 (the unlawful breaking and entering of the 2009 GMC Yukon) due to the State’s failure to present evidence sufficient to support a finding of delinquency. Accordingly, this case is remanded for the juvenile court to vacate B.H.’s adjudication of delinquency in case no. JU-10-52041.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

WELCH, P.J., and WINDOM, BURKE, and JOINER, JJ., concur.

      . An mp3 player is a personal music device.

      . The record on appeal does not contain the delinquency petitions or attendant documents for either case no. JU-10-52026 or case no. JU-10-51911. The discussion at trial reveals that in case no. JU-10-52026 B.H. was charged with the unlawful breaking and entering of a 2004 Ford F-350 truck. However, the discussion at trial is not clear as to what vehicle was contemplated by the charge in case no. JU-10-51911.


source: Caselaw Access Project

license: Public Domain

text:
    Walter E. WILLIAMS, Petitioner(s) v. Edwin G. BUSS, etc., Respondent(s).
    No. SC11-1244.
    Supreme Court of Florida.
    July 15, 2011.
    Rehearing Denied Sept. 19, 2011.
   Because the Court has determined that relief is not authorized, this case is hereby dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004). Any motions or other requests for relief are also denied.

PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.


author: CIKLIN, J.

text:
    Edrawin CANADY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4080.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Rehearing Denied Dec. 1, 2011.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

The appellant, Edrawin Canady, appeals his convictions for delivery of cocaine (count I) and dealing in stolen property (count II). We have thoroughly reviewed Canady’s arguments as to the delivery of cocaine conviction and find them to be without merit. However, we agree with Canady’s assertion that no evidence was presented to support a conviction for dealing in stolen property and as such, we reverse.

During the three-day trial, a Fort Laud-erdale Police detective testified that he was undercover trying to make arrests for dealing in stolen property. He was dressed in disheveled clothing to pass as a drug addict. He carried around with him a brand new Xbox 360 -videogame system and a car radio in a tattered garbage bag. He came into contact with Canady at his place of work, a commercial garage, and tried to sell the Xbox and the radio. Ca-nady was standing with another individual, Charles Hall, at the time.

Canady initiated contact by calling out to the detective to ask what he had in the bag. The detective explained that he had a new Xbox which he got from a friend who worked at Walmart. Both Canady and Hall inspected the items in the bag and began to negotiate a price with the detective. Canady initially offered to pay sixty dollars in cash for both items. The detective testified that this amount was “way below market value for both items.” Eventually Hall offered to throw in forty dollars worth of crack cocaine, to which the detective agreed. Canady handed the detective sixty dollars in cash and Hall removed a bottle containing crack cocaine from a nearby car and handed it to the detective. Canady and Hall took the Xbox and the radio and the detective left. The detective signaled to nearby police officers, and both Canady and Hall were arrested on the spot.

The jury found Canady guilty of both delivery of cocaine and dealing in stolen property. The trial court sentenced Cana-dy to two years in prison for each conviction, to be served concurrently.

Canady argues on appeal that no evidence was offered to support a conviction for dealing in stolen property. We agree.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. (citations omitted).

Section 812.019(1), Florida Statutes (2008), defines dealing in stolen property as, “Any person who traffics in, or endeavors to traffic in, property that he or she knows or should know was stolen shall be guilty of a felony of the second degree .... ” There was substantial, competent evidence that Canady should have known that the Xbox and radio were stolen. Canady used illegal drugs, in part, to pay for the items. See Jean-Phillipe v. State, 913 So.2d 1264, 1265 (Fla. 4th DCA 2005) (“Receiving property as payment for illegal drugs is the type of ‘unusual manner of acquisition’ that tends to show guilty knowledge in a dealing in stolen property case.”). Further, another Fort Lauderdale Police detective testified at trial that while he was interrogating Canady, Canady said he was trying to complete the transaction quickly because his boss was nearby and had already warned him not to purchase items from drug users who frequented the area to buy and sell stolen goods. Finally, the undercover detective testified that the initial sixty-dollar cash offer for both items was “way below market value for both items.” See § 812.022(3), Fla. Stat. (2008) (“Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.”).

The remaining issue which confronts us concerns the definition of trafficking. “Traffie[king]” is defined as either, “To sell, transfer, distribute, dispense, or otherwise dispose of property” or, “To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or othenvise dispose of such ‘property.” § 812.012(8)(a),(b), Fla. Stat. (2008) (emphasis added). Clearly, the first definition does not apply in this case as it was never alleged that Cana-dy actually sold, transferred, distributed, dispensed, or otherwise disposed of the Xbox or the radio. The evidence plainly showed that Canady and Hall purchased the Xbox and radio for sixty dollars in cash and forty dollars in crack cocaine and were then immediately arrested. Thus, the state argues that Canady purchased the items with the intent to sell them later. We cannot agree.

Canady and the state argue on appeal whether this is a circumstantial evidence or mixed evidence case. However, as to Canady’s intent to sell the items after purchasing them, we find that no evidence was presented. The state points to no factor which would allow an inference that Canady intended to sell the items later beyond bare assertions. This case is unlike Brose v. State, 32 So.3d 144 (Fla. 4th DCA 2010), which affirmed an appellant’s conviction for dealing in stolen property where police saw the appellant pushing a garbage can with twenty to thirty fishing poles in the middle of the night, and the appellant admitted to the officer that he stole the fishing poles and planned to sell them to another individual. Here, Canady purchased a single Xbox system and a single radio; this is entirely consistent with personal use. Moreover, Canady never admitted that he intended to sell the items. Simply proving that an individual purchased stolen property is insufficient to support a conviction for dealing in stolen property, which requires proof of a subsequent actual sale or the intent to sell later. See, e.g., Townsley v. State, 443 So.2d 1072, 1073 (Fla. 1st DCA 1984) (“Absolutely no evidence was presented at trial to show that appellant was trafficking in or endeavoring to traffic in stolen property. The only reasonable inference from the evidence presented is that appellant was purchasing the Mercedes for his own personal use.... ”).

Therefore, we reverse and remand to the trial court for entry of an order granting Canady’s motion for judgment of acquittal on the charge of dealing in stolen property.

Reversed and remanded.

DAMOORGIAN and LEVINE, JJ., concur.

      . Canady was also convicted of a third count, possession of cannabis, but he does not challenge it in his appeal, so we do not address it.


author: PER CURIAM.

text:
    CMI, INC., Petitioner, v. Carlos A. Alejandro ULLOA, et al., Respondents.
    No. 5D10-4079.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.

      Edward G. Guedes, John J. Quick, Timothy M. Ravich and Laura K. Wendell, of Weiss, Serota, Helfman, Pastoriza, Cole & Boniske, P.L., Coral Gables, for Petitioner.
    Andrew L. Cameron, Orlando, for Respondent Ulloa.
    William R. Ponall of Kirkconnell, Lindsey, Snure & Ponall, P.A., Winter Park, for Respondent Leonard.
    Jay R. Rooth of Moses & Rooth, P.A., Orlando, for Respondent Jackson.
   PER CURIAM.

Petitioner, CMI, Inc. (“CMI”), seeks certiorari review of a circuit court order entered in its appellate capacity. Multiple DUI defendants being prosecuted in the Seminole County Court served subpoenas duces tecum on CMI’s registered agent in the State of Florida. CMI is the Kentucky-based manufacturer of the Intoxilyzer 8000 instruments that were used to administer breath tests to each of the DUI defendants. The subpoenas duces tecum served by Respondents did not require witness testimony, but only sought the production of the source code for the software version used in the current Intoxilyzer 8000 instruments. CMI subsequently filed motions to quash the subpoenas duces tecum. The county court entered written orders denying CMI’s motions to quash.

CMI subsequently filed petitions for writ of certiorari in the Circuit Court in Seminole County, which were consolidated, and argued that the county court departed from the essential requirements of law in denying the motions to quash the subpoenas. CMI asserted that the DUI defendants should not have been permitted to serve the subpoenas on its registered agent in Florida, but instead should have been required to follow the procedures of the “Uniform Law to Secure the Attendance of Witnesses from Within or Without the State in Criminal Proceedings” (“Uniform Law”). See §§ 942.01-.06, Fla. Stat. (2010). The circuit court denied CMI’s petition for writ of certiorari as to Respondents, concluding that the Uniform Law did not apply because the subpoenas served on CMI by Respondents did not require witness testimony, only the production of documents. CMI now seeks second-tier certiorari review of that portion of the circuit court order which denied the petition for writ of certiorari.

CMI entered a special appearance for the sole purpose of challenging the subpoenas duces tecum served on its registered agent. Therefore, the circuit court order which denied certiorari relief is final as to CMI. See Fla. R.App. P. 9.030(b)(2)(B).

Kentucky and Florida, as well as the other forty-eight states, enacted the Uniform Law to establish uniformity in the procedure by which out-of-state witnesses may be compelled to participate in criminal proceedings. Yeary v. State, 289 Ga. 394, 711 S.E.2d 694, 696 (2011). The requesting court must certify that the witness is material and specify the number of days the witness will be required. § 942.03(1). This triggers a hearing in the recipient state to determine whether to compel the attendance of the witness in the other state. § 942.02(1). The prevailing view is that the Uniform Law applies to subpoenas duces tecum that require both testimony of a witness and the production of documents. See State v. Bastos, 985 So.2d 37 (Fla. 3d DCA 2008).

If a subpoena duces tecum requires only the production of documents and is directed to a foreign corporation that is authorized and doing business in Florida, the Third District has held that the Uniform Law governing the attendance of out-of-state witnesses in criminal proceedings is inapplicable. See General Motors Corp. v. State, 357 So.2d 1045, 1047 (Fla. 3d DCA 1978). There, a state attorney, incident to a criminal investigation, served a subpoena duces tecum on the registered agent of General Motors Corporation, a foreign corporation doing business within the State of Florida. Id. at 1046. The subpoena sought only the production of documents, not witness testimony. The corporation filed a motion to quash the subpoena and, after the circuit court denied the motion to quash except as to certain overbroad paragraphs, it petitioned for a writ of certiorari. Id. at 1046-47. The Third District denied the petition, and adopted the reasoning of the circuit court that 1) the Uniform Law applies only to witnesses outside of Florida, and 2) the Uniform Law does not apply to requests that seek only the production of documents. Id. at 1047-48.

In a case similar to the instant one, the circuit court in CMI, Inc. v. Landrum, 64 So.3d 693 (Fla. 2d DCA 2010), review denied, 54 So.3d 973 (Fla.2011), concluding it was bound by the holding in General Motors, denied CMI’s motion to quash the subpoena duces tecum. Id. at 695. The Second District agreed and denied a petition for writ of certiorari. Landrum, a defendant charged with felony DUI, moved to suppress the results of her breath test and subpoenaed CMI to produce the source code for the machine approved for use in Florida and the source code for the machine actually used in her case. Id. at 693-94. The subpoena sought only the production of documents, not the testimony of an out-of-state witness, and was served on the registered agent of CMI, which was authorized and doing business in Florida. Id. at 694. Following the holding in General Motors, the circuit court denied CMI’s motion to quash the subpoena. The Second District concluded that because the defendant sought the production of documents and not testimony, the only Florida decision materially on point was General Motors. Id,, at 695. It therefore denied the petition, holding that the circuit court properly followed the principles set forth in General Motors in finding the Uniform Law inapplicable.

The circuit court in the underlying case followed Landrum, which was directly on point and involved the same petitioner, CMI. While we recognize the narrow remedy of second-tier certiorari review, see Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086 (Fla.2010), and generally will not review a circuit court decision that followed precedent from another district court of appeal, this is one of those rare cases where we find certiorari review appropriate. To support our finding, we find persuasive the case of Department of Highway Safety v. Nader, 4 So.3d 705 (Fla. 2d DCA), review granted, 36 So.3d 84 (Fla.2009), where the Second District granted second-tier certiorari relief from a circuit court order, even though the circuit court followed precedent from another district court of appeal. Id. at 706. Although the circuit court was bound by the controlling precedent, the Second District held that precedent violated clearly established statutory law. Id. at 711. Likewise, we hold that CMI is entitled to certiorari relief because Landrum violates the clearly established statutory procedures of the Uniform Law. This is an important issue that impacts not only CMI but all foreign corporations doing business in the State of Florida. Ultimately, the Florida Supreme Court may have to decide this issue. However, if we do not grant the petition, there will be no direct conflict for the supreme court to resolve. One district court of appeal, as the first to address an important issue, can bind all the circuit courts throughout the state if the other districts are unwilling to disturb precedent based on the general standard of limited review in second-tier certiorari proceedings.

Designating an agent for service of process subjects a foreign corporation to the jurisdiction of the Florida court to adjudicate its rights and obligations in a legal dispute. See generally § 48.091, Fla. Stat. (2010). The registered agent has a limited role, and is not a corporate employee or custodian of corporate records. CMI is not involved in a legal dispute. Even if CMI is subject to the personal jurisdiction of Florida courts under the long-arm statute, this does not mean that CMI is required to respond to a subpoena to appear and/or to produce documents in a Florida court in a criminal case in which it is not a party. Unlike personal jurisdiction over a foreign corporation registered and doing business within the State of Florida, the subpoena power of a Florida court over a person or legal entity which is not a party in a lawsuit does not extend beyond state lines. See § 914.001(1), Fla. Stat. (2010). The long-arm statute does not extend the subpoena power of a Florida court to command the in-state attendance of a nonresident, non-party person or entity, or compel that person or entity to produce documents. See Phillips Petroleum Co. v. OKC Ltd. P’ship, 634 So.2d 1186 (La.1994); see also Syngenta Crop Prot., Inc. v. Monsanto Co., 908 So.2d 121 (Miss.2005). The only way to secure such out-of-state witnesses or documents in a criminal case is to follow the procedures of the Uniform Law.

In Yeary, 289 Ga. 894, 711 S.E.2d 694, the criminal defendant appealed her DUI conviction and challenged the trial court’s pretrial ruling that the source code for the Intoxilyzer 5000 was neither material nor relevant and could not be the subject of a production request under the Uniform Law. Id. at 695. The Georgia Court of Appeals upheld the trial court’s ruling for a different reason, finding that the Uniform Law could be used to obtain the testimony of an out-of-state witness and documents in the possession of the witness, but could not be used to request only the production of documents located in another state. Id. at 695-96. On certiorari review, the Georgia Supreme Court vacated the decision of the Court of Appeals. Id. at 698. While the Uniform Law speaks only to the securing of the attendance of an out-of-state witness, the Georgia Supreme Court noted that the statute has been construed to authorize issuance of a summons that requires the out-of-state witness to bring documents with the witness. Id. at 696. The Georgia Supreme Court recognized that an out-of-state corporation may be a material witness under the Uniform Law and may be in possession of material documentary evidence; when requesting documents, the proper procedure is for the corporation itself to identify the human agent through whom it will act, perhaps in conjunction with the hearing that would be held in the recipient state upon receipt of the certificate of materiality. Id. at 697.

The Georgia Supreme Court distinguished General Motors on the basis that there was no evidence in Yeary that CMI was authorized to do business in Georgia, was registered to do business in Georgia, was doing business in Georgia, and had a registered agent in Georgia. Id. at 698. We do not find that distinction to be convincing, because even if CMI is doing business in another state and has a registered agent, it does not mean that it is located within that state and subject to a criminal court’s contempt power for failing to respond to a subpoena duces tecum from that state. We agree with the Georgia Supreme Court to the extent it holds that the Uniform Law applies not only to out-of-state witnesses, but also to out-of-state corporations which possess documents material to a criminal case.

We therefore quash the portion of the circuit court order which denied the petition for writ of certiorari as to Respondents, and certify conflict with Landrum, and General Motors.

PETITION GRANTED; ORDER QUASHED; CONFLICT CERTIFIED.

GRIFFIN, LAWSON and COHEN, JJ., concur.

      . The circuit court granted the petition for writ of certiorari with regard to other DUI defendants whose subpoenas duces tecum required both witness testimony and the production of documents.

      . See generally § 48.193, Fla. Stat. (2010).


author: MONACO, J.

text:
    Marvin JOE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-800.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.
    Rehearing and Rehearing En Banc Denied Nov. 8, 2011.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Originally we affirmed this case per curiam, citing State v. Coleman, 911 So.2d 259 (Fla. 5th DCA 2005), as the basis for our determination. In Harris v. State, 71 So.3d 756 (Fla.2011), however, the Florida Supreme Court disapproved of Coleman, and specifically approved Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003), the case relied on by the appellant, Marvin Joe, in the appeal of his judgment and sentence to this court. Harris was decided a day after the mandate in the present case was issued. Accordingly, at Mr. Joe’s request we recalled the mandate and reconsidered his appeal. We now withdraw our previous opinion in this case and substitute this opinion for it. Having done so, we conclude that an affirmance is still in order because under the totality of circumstances, the requisites of Harris were met in the present case.

The issue raised by Mr. Joe is whether the trial court erred in denying his motion to suppress evidence seized as a result of a search based on a dog sniff alert. Mr. Joe postulated that the information concerning the training of the dog that was presented to the court was insufficient to satisfy the requirements of probable cause.

The information that must be presented by the State to justify the admission of the fruits of a seizure based on a dog sniff alert was set forth in Harris. The supreme court there first pointed out that it was adopting a “totality of the circumstances approach” in conducting its probable cause analysis. Harris, 71 So.3d at 771. It went on to say the State bears the burden of establishing probable cause, and that:

[T]he State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability in being able to detect the presence of illegal substances within the vehicle.

Id. at 759.

We have concluded that the evidence presented by the State at the hearing on the motion to suppress in Mr. Joe’s case satisfied the requirements of Harris. The supreme court pointed out in that case that the drug dog’s “records were neither produced prior to hearing nor introduced at the hearing.” Id. at 761. The records are important in the view of the supreme court so that the trial court can make an “objective evaluation” of the reliability of the dog based on the totality of the circumstances. Id. at 767.

In the present case the dog’s handler gave extensive testimony about his and the dog’s training, testing and certification. In addition, he testified regarding the dog’s history and search record, including ample information concerning both accurate alerts and false alerts. While the training and field records were not specifically introduced into evidence, they had been provided to the defense, and defense counsel used them frequently to cross examine the handler. In fact defense counsel actually refreshed the memory of the dog handler by presenting him with copies of the officer’s own records of the dog’s performance.

While it is made clear by Harris that the better practice would be to admit the records into evidence, we think any such failure to do so here was, at worst, harmless error. The records were made available by the State, the defense was provided with them, and both sides used them during the presentation of evidence at the hearing on the motion to suppress. The issue of the dog’s reliability was fully explored and the trial court had ample information upon which to determine that probable cause was established.

Thus, we conclude that based on the totality of the circumstances, the minimum requirements of Harris were met and the trial court properly denied the motion to suppress. Accordingly, we once again affirm Mr. Joe’s judgment and sentence.

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.

      . Oddly enough, it appears from the transcript of the hearing that while the defense had the records prior to the hearing, the prosecutor had apparently not earlier seen them.


text:
    Jarvis HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-958.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2011.

      Jarvis Ramon Haynes, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jarvis Haynes appeals from the dismissal of his petition for writ of habeas corpus filed in Orange County Circuit Court where he was convicted in 2005 of third-degree felony murder, robbery with a firearm, and dealing in stolen property. This court affirmed the convictions in 2006. Haynes v. State, 946 So.2d 1106 (Fla. 5th DCA 2006). Although Haynes has completed his sentence on the third-degree felony murder charge, he is currently serving concurrent sentences on the latter two charges in Taylor County, Florida.

Haynes first seeks relief alleging that the predicate felony for his third-degree felony murder charge was robbery, and that this is a nonexistent crime. See Moore v. State, 983 So.2d 691 (Fla. 1st DCA 2008) (explaining that “third-degree felony murder predicated on the underlying felony of robbery is, effectively, a nonexistent crime” because section 782.04(4), Florida Statutes, expressly excludes robbery as a predicate felony for the offense). Haynes’s other two claims relate to jury instructions read during his trial and the verdict forms used at trial.

The trial court dismissed all three claims on grounds that Haynes should have filed the petition in the jurisdiction where he is currently incarcerated, as well as on grounds that habeas corpus cannot be used to litigate issues that could have been raised on direct appeal or in a rule 3.850 motion. Although Haynes is correct that a habeas petition challenging the validity of his convictions, if permitted at all, is properly filed in the trial court that rendered the judgments of conviction, see, e.g., Collins v. State, 859 So.2d 1244, 1245^6 (Fla. 5th DCA 2003), the trial court properly found that Haynes’s claims could not be pursued using a petition for writ of habeas corpus because the jury instruction and verdict form issues could have been raised at trial or on appeal. See, e.g., Wright v. State, 857 So.2d 861, 874 (Fla.2003) (“Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in postconviction proceedings.”); Richardson v. State, 918 So.2d 999, 1002 (Fla. 5th DCA 2006) (“Since adoption of rule 3.850 and its predecessor, the courts have consistently held that it is inappropriate to collaterally attack a conviction through the process of habeas proceedings because such claims are cognizable under the rule.”) (citations omitted). With respect to Haynes’ argument relating to the third-degree felony murder charge, we also note that this claim is inappropriate for habeas relief because Haynes has served his sentence for that charge and his current detention is in no way affected by it. See, e.g., Brown v. McNeil, 22 So.3d 741, 742 (Fla. 1st DCA 2009) (“The writ of habeas corpus is available only if the petitioner shows probable cause to believe that he or she is detained without lawful authority.”).

AFFIRMED.

TORPY, LAWSON and EVANDER, JJ., concur.

      . Our internal records relating to Haynes’s direct appeal demonstrate that the trial court sentenced Haynes to concurrent sentences of five years in prison on the third-degree felony murder charge, life in prison on the robbery with a firearm charge and fifteen years on the dealing in stolen property charge. It is these latter two sentences that Haynes is currently serving.

      . It is not possible to tell from the record before us, or from the limited documents still available from Haynes’ direct appeal, what predicate felony the jury found when it returned a guilty verdict on the third degree felony murder charge.


author: GRIFFIN, J.

text:
    Arvita M. COLEMAN, Appellant, v. Michael BLAND, Appellee.
    No. 5D10-1326.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2011.
    Rehearing Denied Nov. 9, 2011.
    Carlton Pierce, of Carlton Pierce, P.A., West Palm Beach, for Appellant.
    Michael B. Jones, Eric Lee Bensen and Cynthia M. Winter, of The Wheelock Law Firm, LLC, Orlando, for Appellee.
   GRIFFIN, J.

Arvita M. Coleman [“Former Wife”] appeals the final judgment dissolving her marriage to Michael Bland [“Former Husband”]. We find no reversible error in any of the issues raised on appeal, save one. Among the issues in dispute between these parties was the question whether any part of Former Husband’s pension was a marital asset. The trial court made no finding in the final judgment concerning whether this asset was marital or non-marital, as required by section 61.075(8), Florida Statutes (2009). Former Wife contends on appeal that the lack of findings constitutes reversible error as to this and other assets; however, as to all except the pension, we find, after our review of the record, that any error was harmless. We are unable to make an adequate review of the pension issue without findings, however. The record seems to show that some portion of the pension, although small, was earned during the marriage and should be classified as a marital asset. We therefore reverse as to that issue only and remand for the trial court to hear and to make proper findings on the disposition of the Former Husband’s pension.

AFFIRMED in part; REVERSED in part; and REMANDED.

TORPY and LAWSON, JJ., concur.


text:
    Hector ROMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-402.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 2011.
    Rehearing Denied Dec. 1, 2011.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant entered an open plea of no contest to (I) Burglary of a Dwelling, (II) Dealing in Stolen Property, and (III) Grand Theft. He was sentenced to 30 years in prison as a habitual offender on Counts I and II and 10 years as a habitual offender on Count III. The trial court suspended the sentence, granted a downward departure, and placed appellant on two years of community control, followed by three years probation, as a habitual offender. Shortly thereafter, appellant’s community control was revoked for multiple violations, including failure to complete the drug/alcohol residential treatment program. The trial court sentenced him to 30 years in prison as a habitual offender on Counts I and II and 10 years in prison as a habitual offender on Count III.

Appellant asserts that his sentences for dealing in stolen property and grand theft violated the prohibition against double jeopardy. We hold instead that his convictions and sentences for both theft and dealing in stolen property in connection with this single scheme or course of conduct were prohibited by section 812.025, Florida Statutes (2010). See Hall v. State, 826 So.2d 268, 271 (Fla.2002) (holding that trial courts are statutorily prohibited from adjudicating a defendant guilty, pursuant to a plea of nolo contendere, of both theft and dealing in stolen property in connection with one scheme or course of conduct).

We disagree, however, with appellant’s other two arguments: (1) that his 30-year sentences on Counts I and II were due to the trial court’s failure to understand it had discretion in sentencing him, and (2) that the sentence was unlawful because it was not one of the recognized sentencing alternatives in Florida. The record refutes appellant’s claim that the trial court misunderstood that it had discretion to sentence appellant to less than thirty years in prison, the maximum term of his suspended sentence. Further, the suspended sentence imposed by the court was one recognized by the Florida Supreme Court in Poore v. State, 531 So.2d 161 (Fla.1988).

For the reasons stated above, we remand with directions that appellant’s conviction and sentence be vacated on either Count II (Dealing in Stolen Property) or Count III (Grand Theft). See Hall, 826 So.2d at 271 (“Just as the trier of fact must make a choice if the defendant goes to trial, so too must the trial judge make a choice if the defendant enters a plea of nolo contendere to both counts.”).

Affirmed, in part, Reversed in part and Remanded.

STEVENSON, GROSS and TAYLOR, JJ., concur.


text:
    Leland W. McKEE, Appellant, v. Amanda SINCO, Appellee.
    No. 5D11-480.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.
    Leland W. McKee, Orlando, pro se.
    Annabelle S. Catania-Pratt of The Law Office of Annabelle S. Catania-Pratt, P.A., Orlando, for Appellee.
   PER CURIAM.

Leland McKee appeals a temporary order on child support in this paternity action. The parties continue to reside in the same household, although no longer as a couple. The home is in foreclosure, and it is unclear from the record whether any mortgage payments are being made.

McKee argues the trial court abused its discretion in awarding any child support. We disagree. The trial court did not award support under the child support guidelines. Under those guidelines, McKee’s child support responsibility would be more than $1300 per month. Instead, the court ordered McKee, whose yearly net income exceeds $52,000, to pay his proportionate share of day care and health insurance costs of $517.16 per month, as well as fifty percent of agreed-upon extracurricular activities. We find no abuse of discretion in the trial court’s ruling, and we find McKee’s appeal to be frivolous.

AFFIRMED.

GRIFFIN, MONACO and COHEN, JJ., concur.

      . The child receives $405 per month from Social Security based upon his disability.