author: TAYLOR, J.

text:
    Thomas DAUGHERTY, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4624.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.

      Donna Duncan and Steven Seliger of Sanders and Duncan, P.A., Apalachicola, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   ON AMENDED MOTION FOR REHEARING

TAYLOR, J.

Upon consideration of appellant’s amended motion for rehearing, we grant the motion, withdraw the opinion filed on May 23, 2012, and substitute the following opinion in its place.

Thomas Daugherty appeals his convictions for second-degree murder and two counts of attempted second-degree murder. The charges arose from a violent crime spree in which appellant and some friends randomly selected and severely beat three homeless men, one of whom died from the attack. Appellant raises five issues, arguing that (1) the trial court committed fundamental error in instructing the jury on the lesser included offenses of manslaughter and attempted voluntary manslaughter; (2) the trial court abused its discretion in denying appellant’s motion to sever the murder counts from the attempted murder counts; (3) the trial court fundamentally erred in using the phrase “and/or” between the defendants’ names in the jury instructions; (4) the trial court erred in denying appellant’s motion to change venue due to pre-trial publicity, and (5) appellant’s sentence to life without the possibility of parole as a juvenile violates the Eighth Amendment of the United States Constitution and Article I, Section 17, of the Florida Constitution. We affirm appellant’s conviction for second-degree murder but remand for a new sentencing hearing in light of Miller v. Alabama, — U.S.-, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

Appellant and co-defendant Brian Hooks were tried together. In the appeal of Hooks' convictions for the same underlying crimes, we held that the trial court did not err in denying Hooks’ motion for change of venue due to pre-trial publicity. See Hooks v. State, 82 So.3d 905 (Fla. 4th DCA 2011), rev. denied, 83 So.3d 707 (Fla.2012). Because appellant and the co-defendant were tried together, the Hooks decision compels an affirmance on the denial of appellant’s motion to change venue.

As to appellant’s contention that the trial judge committed fundamental error in instructing the jury on manslaughter and attempted voluntary manslaughter, we affirm.

We conclude that the trial court did not commit fundamental error in instructing the jury on manslaughter as a lesser included offense of Count I. In Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010), we held that the standard jury instruction on the lesser included offense of manslaughter was not fundamentally erroneous where the trial court gave an instruction on manslaughter by culpable negligence.

The parties in this case disagree over whether the evidence supported a manslaughter by culpable negligence instruction. Appellant argues that the evidence did not, while the State argues that it did. However, we need not reach that issue. Our analysis is not dependent upon the fact that the culpable negligence instruction was given. Even without considering that the jury received the manslaughter by culpable negligence instruction, we find that there is an independent reason why giving the manslaughter instruction, as a lesser included offense of the murder charge, was not fundamental error in this case. As our supreme court has explained, “When the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.” Pena v. State, 901 So.2d 781, 787 (Fla.2005). Here, because the jury was also instructed on the lesser included offense of third-degree felony murder, manslaughter was actually two steps removed from second-degree murder under the facts of this case. See Echols v. State, 484 So.2d 568, 574 (Fla.1985) (holding that manslaughter was a lesser included offense that was three steps removed from first degree murder where the jury, if inclined to exercise its “pardon” power, could have returned verdicts of second-degree or third-degree murder). If the jury had been inclined to exercise its pardon power, it could have returned a verdict of third-degree felony murder, which was the next lower crime on the verdict form; the evidence in this case would have supported a conviction for third-degree felony murder. We conclude that the error in the manslaughter by act instruction was harmless and did not constitute fundamental error.

We likewise conclude that the tidal court did not commit fundamental error in instructing the jury on attempted voluntary manslaughter as a lesser included offense of Counts II and III. See Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (holding that standard jury instruction on attempted voluntary manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser in-eluded offense of attempted second-degree murder), rev. granted, 64 So.3d 1262 (Fla.2011). Because the Williams case is under review in the Florida Supreme Court, we certify conflict with the contrary decisions of the other districts. See Coriolan v. State, 77 So.3d 840, 840 (Fla. 4th DCA 2012) (rejecting argument that trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter, but certifying conflict with other district courts).

Without further discussion, we reject appellant’s other arguments challenging his convictions and affirm on all points raised by appellant.

On the issue of sentencing, however, we reverse and remand for further proceedings in light of the recent decision by the United States Supreme Court in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Following a line of cases recognizing that juveniles may have less “moral culpability” because of their youth, the Supreme Court held that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Appellant, who was seventeen at the time he committed his crimes, argues that his sentence to life in prison without the possibility of parole constitutes cruel and unusual punishment. Unlike the juvenile defendant in Miller, however, appellant was not sentenced to a statutorily mandated sentence of life imprisonment without the possibility of parole. Rather, the trial judge in his case had discretion to impose a different punishment.

Nevertheless, Miller contains language suggesting that sentencing juveniles to life-without-parole prison terms should be “uncommon” in light of the “great difficulty” of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469 (citations and internal quotation marks omitted). Thus, under Miller, judges must take an individualized approach to sentencing juveniles in homicide cases and consider factors which predict whether a juvenile is amenable to reform or beyond salvation.

In Miller, the Supreme Court reviewed its precedent in Roper and Graham, which established that “children are constitutionally different from adults for purposes of sentencing.” Id. at 2464. Notable among these differences are “immaturity, impetuosity, and failure to appreciate risks and consequences.” Id. at 2468. Although the Court clarified that its decision does not foreclose a judge’s ability to impose a life-without-parole sentence on a juvenile convicted of homicide, the Court stressed the sentencing judge’s responsibility to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 2469.

Appellant argues that the trial court failed to adequately consider his age and culpability when sentencing him to life in prison without the possibility of parole.

Although the record contains extensive testimony regarding appellant’s difficult childhood and other factors that may have lessened his culpability, the trial court’s comments when imposing the sentence were limited to the following:

Mr. Daugherty, the Court does believe that your remorse is genuine, does understand you behaved in court the entire time. I’ve heard today what a horrible and unfortunate upbringing that you’ve had, and that you found religion and you may, in fact, be a good person now. However, on that night, the things that were done to those three individuals were horrific. They were senseless crimes.
Mr. Pierre, I’ll start with him, is being chased around while you and Mr. Hooks are beating him. He’s a helpless old man. Then you go to Mr. Gaynor, not once, but once you hit him in the head, and then he sits up, and then you come back and kill him with a baseball bat. And then, if that wasn’t enough, a third time, you go out, and you go get Mr. Perez, and you go after him. It shows a total disregard for human life. It’s a waste of your life as well as theirs. And by your own words, you treated them like less than human, and it was demented and wrong what you did. So based on that, the Court sentences you to life.

Here, it appears that the trial court considered appellant’s remorse and his “horrible and unfortunate upbringing” before sentencing appellant to a term of life without parole. However, based on Miller, we remand this case to the trial court to conduct further sentencing proceedings and expressly consider whether any of the numerous “distinctive attributes of youth” referenced in Miller apply in this case so as to diminish the “penological justifications” for imposing a life-without-parole sentence upon appellant. Id. at 2458.

Our decision does not preclude the trial court from again imposing a life term without possibility of parole should the court upon reconsideration deem such sentence justified.

Affirmed in part; Reversed in part.

MAY, C.J. and CONNER, J., concur.

      . Accordingly, our resolution of this issue will not be affected by the Florida Supreme Court's ultimate determination regarding the certified question in Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011), rev. granted, 61 So.3d 410 (Fla.2011).

      . The co-defendant, who was also convicted of second degree murder, was sentenced to thirty years in prison.

      . Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding that the Eighth Amendment to the Constitution bars capital punishment for children); Graham v. Florida, -U.S. -, -, — , 130 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010) (holding that the Eighth Amendment "prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide”).


source: Caselaw Access Project

author: SHEPHERD, J. CORTIÑAS, J.

license: Public Domain

text:
    S.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D11-1842, 3D11-988.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2012.

      Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, and Joshua Roth, Certified Legal Intern, for appellee.
    Before SHEPHERD and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

S.L. appeals an adjudication of guilt for interfering with the administration and functions of an educational institution in violation of section 877.13(l)(a), Florida Statutes (2010), and resisting arrest without violence in violation of section 843.02, Florida Statutes (2010). We conclude the trial court erred in adjudicating S.L. on the interference charge, but affirm on the charge of resisting arrest.

On September 22, 2010, the day of the incident in this case, S.L. was a thirteen-year-old middle school student in attendance at the Robert Renick Educational Center, a school for emotionally and behaviorally disturbed children in grades K-12. At about noon on that date, S.L. and his class were proceeding toward the school cafeteria when S.L. caught sight of Renick Educational Center Dean of Discipline, David Jefferson, and Miami-Dade Public Schools Officer Dadd at the opposite end of the same hallway. S.L., “out of nowhere,” began calling out insults, obscenities and making rude gestures toward Officer Dadd. Dean Jefferson and Officer Dadd were about twenty yards from S.L. when S.L. commenced his outbursts.

Dean Jefferson suggested to Officer Dadd they keep walking, but Officer Dadd wished to speak with S.L., so the two took S.L. to an area “out by the teacher’s lounge,” where no other students were present. After it became apparent Officer Dadd "wasn’t getting anywhere,” Officer Dadd decided to let S.L. return to the cafeteria. As Dean Jefferson escorted S.L. to the cafeteria entrance, S.L. turned and hurled one last insult at Officer Dadd. Officer Dadd ordered S.L. to come back, but S.L. “took off.” At that point, a school security guard escorted S.L. from the cafeteria and S.L. was taken into an office by Dean Jefferson and Officer Dadd, because, again, Officer Dadd “didn’t want the kids to see this.”

In the office, S.L. continued to be uncooperative and aggressive, saying, “I hate police officers ... I can’t stand you guys.” Officer Dadd handcuffed S.L. and began to fill out paperwork to arrest him for “disruption of school function.” Officer Armando Calzadilla was called to transport S.L. from the school to the Juvenile Assessment Center. When Officer Calzadilla arrived at the school, S.L. was sitting handcuffed in a chair. S.L. continued to curse and yell, at one point attempted to stand up, and refused to sit back down when so ordered.

Based on S.L.’s continued unruliness, Officer Calzadilla and Officer Dadd decided to take S.L. to Officer Calzadilla’s police car to detain S.L. so Officer Dadd could return and complete his arrest paperwork. En route, S.L. began kicking at Officers Dadd and Calzadilla, and pulling his hands away from them in an attempt to escape. Although the officers were able to place S.L. in the vehicle, S.L. continued kicking and spitting, and banged his head against the windows of the vehicle as well. The two officers, along with a third who had just arrived, pulled S.L. out of the car again to tie his feet together to “keep his feet from moving around the vehicle.” According to Officer Calzadilla, once back inside the police vehicle, S.L. stated, “I want to kill myself.” At this point, the officers decided to take S.L. to the Citrus Crisis Center “for his welfare,” rather than to the Juvenile Assessment Center as originally planned. S.L. was Baker Acted at that facility.

On November 1, 2010, after a non-jury trial, S.L. was adjudicated guilty of knowingly disrupting or interfering with the administration or functions of an educational institution under section 877.13(l)(a), and resisting arrest without violence in violation of section 806.13(l)(b). At a disposition hearing held on March 14, 2011, the trial court also found S.L. had violated the terms of his probation in four other cases, see supra note 1, because he had violated curfew, been suspended from school, and picked up the new convictions. S.L. was committed to a moderate-risk juvenile facility.

S.L.’s first point on appeal is that the trial court erred in denying his motions for judgment of dismissal, on the ground the evidence presented by the State was insufficient to support the crime of interfering with the administration or functions of an educational institution. In reviewing a trial court’s motion for judgment of dismissal, a de novo standard of review applies. P.N. v. State, 976 So.2d 90, 91 (Fla. 3d DCA 2008). While the evidence must be viewed in the light most favorable to the State, if the State fails to present sufficient evidence to establish a prima facie case of the crime charged, then a judgment of dismissal is proper. Id.

Section 877.13(l)(a) states: “(1) It is unlawful for any person: (a) Knowingly to disrupt or interfere with the lawful administration or functions of any educational institution.” We previously have addressed the elements of the crime of “knowingly disrupting or interfering with the administration or functions of an educational institution” in M.C. v. State, 695 So.2d 477 (Fla. 3d DCA 1997). Although M.C. involved a facial challenge to section 877.13 on the grounds it violated M.C.’s right to freedom of speech and was over-broad and vague, M.C. provides a useful framework for reviewing the sufficiency of the evidence in this case.

In M.C., M.C. stormed into the main office of a Miami-Dade County middle school, where both she and her brother were students, waving her hands and hurling insults at a school police officer in a loud and threatening manner for arresting her brother moments earlier. A group of five to seven other students followed M.C. into the office and joined the protest. The main office of the school contained the principal’s office. As a result of M.C.’s actions and loud verbal outbursts, the duties and functions of those in the office temporarily were brought to a halt. Id. at 479. We affirmed M.C.’s adjudication under section 877.13(l)(a). We concluded section 877.13 suffered from none of the constitutional maladies alleged, noting that culpable intent is a necessary element of the offense. We explained:

The obvious intent of section 877.13 is to ensure that the educational institutions and their administrators are free to perform their lawful functions without undue or unwarranted interference or disruption from others. We note early on that this statute does not seek to proscribe or regulate the content of any particular speech; rather it seeks to regulate expressive activity or conduct which significantly interferes with lawful educational functions.

Id. at 480 (emphasis added). The “intended purpose” of the statute, we concluded, “is to prevent only that expression or conduct which materially disrupts or interferes with normal school functions or activities.” Id. at 481 (emphasis added); see also A.M.P. v. State, 927 So.2d 97, 100 (Fla. 5th DCA 2006) (recognizing section 877.13 prohibits conduct “specifically and intentionally designed to stop or impede the progress of any normal school function or activity occurring on the school’s property.”) (citing T.J. v. State, 867 So.2d 1238 (Fla. 5th DCA 2004), quoting M.C., 695 So.2d at 483).

The adjudication in the case before us rests upon a much thinner factual reed, namely that in response to S.L.’s antics, some of the students arrived at the cafeteria or their classroom quicker than usual. However, this movement is just what Ren-ick teachers are trained to do in the event of a situation of this type. While the trial court found an acceleration of activity constituted an interference with school function, getting students to lunch or class slightly ahead of schedule cannot be said to be a “material” disruption. Dean Jefferson testified:

[T]he teachers did a marvelous job. They got their kids in the cafeteria away from the situation. So the kids who might have reacted didn’t have a chance to react, because their teacher moved them away from the situation. And that’s what we are trained with at Ren-ick.

There was no disruption of either lunch or classroom activities. We find no evidence, as well, from which it can be inferred that S.L. specifically and intentionally intended to stop or impede any activity. See A.M.P., 927 So.2d at 100 (concluding child’s conduct did not violate section 877.13 where State offered no evidence child intended to disrupt school’s function by getting into a fight with another student in a bathroom, and by intentionally bumping an assistant principal who broke up the fight, or that any function was disrupted); L.T. v. State, 941 So.2d 551, 552 (Fla. 2d DCA 2006) (holding child’s conduct did not violate section 877.13 where State offered no evidence that child intended to stop or impede the progress of any normal school function by joining an ongoing fight for the purpose of protecting her sister, even if she knew the fight was disrupting the campus); S.W.W. v. State, 833 So.2d 877, 877 (Fla. 3d DCA 2003) (concluding child’s conduct did not violate section 877.13 where State did not establish that the child acted “with the intention that his behavior impede the successful functioning” of the school or that he acted “with reckless disregard of the effect of his behavior”).

Count II, resisting an officer without violence pursuant to section 806.13(l)(b), is another matter. To convict a defendant of resisting or obstructing an officer without violence, the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the actions of the defendant obstructed, resisted, or opposed the officer in the performance of that legal duty. O.B. v. State, 36 So.3d 784, 786 (Fla. 3d DCA 2010). “The element of lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrantless arrest. Otherwise, the individual has a right to ignore the police and go about his business.” Id. (citing Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); E.A.B. v. State, 851 So.2d 308, 311 (Fla. 2d DCA 2003)). Importantly, the determination must be made based upon the facts known to the officers at the time, not on the ultimate finding of guilt. See C.E.L. v. State, 24 So.3d 1181, 1186 (Fla. 3d DCA 2009); see also Wardlow, 528 U.S. at 125,120 S.Ct. 673.

At the time Officer Dadd detained S.L. in this case, S.L. had been yelling obscene, racially charged, and abusive insults loudly in the hallway, and had run back into the cafeteria, where other students were present, after Officer Dadd had instructed S.L. to come toward him. 5.L.’s conduct was sufficient at that moment to give “rise to a reasonable and well-founded suspicion that criminal activity had occurred or is about to occur.” C.E.L., 24 So.3d at 1186. This is so even though, based upon the evidence adduced, we today have concluded S.L.’s conduct, while boorish, disrespectful, uncivil, and undoubtedly a violation of school disciplinary rules, did not rise to the level of the crime of “knowingly” interfering with the lawful administration or functions of an educational institution.

Having determined Officer Dadd was engaged in a lawful duty when he took custody of S.L. from the school security guard who escorted him from the school cafeteria and into a school office to effectuate his arrest, we finally consider whether “the defendant’s action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” Id. at 1186. Of this, there can be no doubt. If S.L. did not resist while in the school office, he most certainly did when he kicked at Officers Dadd and Cal-zadilla, screamed at them, and retracted his hands while the officers escorted him to the police car. Once in the police car, he continued to kick so that Officer Calza-dilla feared S.L. would break a window. This required the police to remove S.L. and tie his feet together to subdue him. We are satisfied the totality of S.L.’s conduct toward the police in this case is sufficient to uphold the trial court’s findings. We therefore affirm the charge of resisting arrest without violence.

Affirmed in part, reversed in part, and remanded for further proceedings in compliance with this opinion.

SCHWARTZ, Senior Judge, concurs.

CORTIÑAS, J.

(dissenting).

The majority would reverse the trial court’s adjudication of S.L. on the interference charge, believing that S.L.’s disruptive behavior did not constitute an interference with the lawful administration of his school’s daily functions in violation of section 877.13, Florida Statutes. However, Florida law provides otherwise. Because S.L. intentionally disturbed the lawful administration of his school and caused school administrators and other officials to accelerate their activities and disrupt the school’s schedule, I must respectfully dissent.

Though the trial court’s denial of S.L.’s motion for judgment of dismissal is reviewed de novo, facts adduced from the evidence are taken as true and “[a]ll reasonable inferences that may be drawn from such evidence must be viewed in a light most favorable to the State.” A.P.R. v. State, 894 So.2d 282, 285 (Fla. 5th DCA 2005) (quoting Espiet v. State, 797 So.2d 598, 601 (Fla. 5th DCA 2001)). Thus, “if a rational trier of fact could find that the elements of the offense have been proven beyond a reasonable doubt, the evidence is sufficient to sustain the conviction and the motion should be denied.” Id. (emphasis added) (citation omitted) (noting that in moving for a judgment of dismissal, the accused “admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the [State] that a [trier of fact] might fairly and reasonably infer from the evidence.”) (quoting Beasley v. State, 774 So.2d 649, 657 (Fla.2000)). In viewing the evidence as true and drawing all reasonable inferences in favor of the State, there is sufficient evidence that the State proved S.L.’s behavior was unlawful under section 877.13, Florida Statutes. Accordingly, there is sufficient evidence to sustain S.L.’s conviction and, thus, the trial court’s denial of S.L.’s motion for judgment of dismissal should be affirmed.

Florida Statutes enumerates behaviors that are considered unlawful when a person interferes with the administration or function of an educational institution. See § 877.13, Fla. Stat. (2010). Specifically, section 877.13(l)(a), provides that “(1) it is unlawful for any person: (a) [k]nowingly to disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.” § 877.13(l)(a), Fla. Stat. This Court has previously addressed the elements necessary to uphold a conviction under section 877.13(l)(a) in a case involving a constitutional, challenge to the statute. See M.C. v. State, 695 So.2d 477 (Fla. 3d DCA 1997).

In upholding the constitutionality of the statute, this Court noted that, “[t]he obvious intent of section 877.13 is to ensure that educational institutions and their administrators are able to perform their lawful functions without undue or unwarranted interference or disruption from others.” Id. at 480. Because the “intended purpose is to prevent only that expression or conduct which materially disrupts or interferes with normal school functions or activities!,]” the prohibited action or conduct should be measured objectively by the impact or effect on the progress of the school’s normalized activities or functions. Id. at 481-84. Though the statute requires that the accused act with culpable intent, “intent is an issue for the trier of fact.” M.M. v. State, 997 So.2d 472, 474 (Fla. 5th DCA 2008). Therefore, Florida courts affirm convictions where there is sufficient evidence to conclude that the accused acted with the intent that his or her behavior temporarily impede the school’s normalized activities or functions on the school’s property, and that such action caused a disruption to the institution. Id. J.J. v. State, 944 So.2d 518 (Fla. 4th DCA 2006); T.J. v. State, 867 So.2d 1238 (Fla. 5th DCA 2004); M.C., 695 So.2d 477.

Contrary to the majority’s opinion, the case before us contains numerous facts that are similar, if not more egregious, to those in M.C., 695 So.2d 477, which support S.L.’s conviction under the statute. M.C., intending to protest her brother’s arrest, entered the school’s office, hurled obscenities at the arresting officer, and waived her arms as to encourage attention from about five to seven other students that were present. Id. at 479. The State presented evidence that M.C.’s loud tirade temporarily impeded the school’s secretaries’ ability to perform their duties and that the police officer’s arrest of her brother was temporarily halted. Id. at 484. In affirming M.C.’s conviction, this Court held that the school’s normalized activities or functions were disrupted because M.C.’s actions brought the school office’s normal activities to a temporary halt. Id.

Likewise, S.L.’s continuous and disruptive behavior impeded and disrupted his school and his school administrators’ normalized activities and functions. David Jefferson, Dean of Discipline for the Ren-ick Educational Center, was standing at the end of the school’s hallway speaking with Officer Dadd. At the time, several classes of students and school teachers were also in the hallway walking to the school’s cafeteria for their regularly-scheduled lunchtime while other classes were leaving the cafeteria to return to their classrooms. Suddenly and without provocation, S.L., who was standing about twenty-five yards away at the opposite end of the hallway, surrounded by a group of students, began yelling obscenities at Officer Dadd. S.L.’s rant included statements such as, “I can’t stand the Po, Po. F the Po, Po. Po, Po[.] could suck my you know what. I hate the Po Po. You cracker Po[,] Po.”

Officer Dadd first tried walking away from S.L. in an effort to prevent S.L. from causing a further disturbance to the school’s normalized activities, but S.L. continued to yell vulgarities and make obscene gestures while still in the hallway in the presence of other students. S.L.’s behavior caused teachers to quickly usher students into the cafeteria or back inside classrooms in order to get away from the situation in an attempt to prevent S.L.’s disturbance from further escalating. In an attempt to stop S.L.’s disruptive behavior from further impeding on the school’s regular lunchtime activities, Dean Jefferson and Officer Dadd intervened. They stopped S.L. in front of the cafeteria, tried to talk and calm S.L. down, but yet again, S.L. continued to carry on with his unsettling behavior and actions, saying, “I can’t stand the police. I hate police officers. F U you cracker police officer. You Irish piece of crap police officer.”

For a third time, Officer Dadd tried to calm S.L., but still to no avail. After another round of S.L.’s unrelenting rant of obscenities, Officer Dadd thought S.L.’s disturbing actions might cease if S.L. was allowed to go in the cafeteria to eat lunch. However, immediately after S.L. entered, S.L. turned, loudly yelled more obscenities at Officer Dadd, and then took off through the cafeteria in front of the other students. The school’s security guard, Mr. Williams, was forced to stop S.L. for a fourth time and bring him back to the front of - the cafeteria. Even then, S.L. continued his disturbing antics. Because S.L.’s continuous and unruly behavior, in front of other students, caused a disturbance to the school’s regularly-scheduled lunchtime and classroom activities, Dean Jefferson and Officer Dadd took S.L. to an office where Officer Dadd could “talk to him in a private place where he’s not showing off.” Officer Dadd attempted to calm S.L. for a fifth time, but yet again, S.L. continued with his reckless disregard for the school’s normalized activities with obscene gestures and disrespectful obscenities.

Officer Dadd then explained to S.L. what would happen if S.L. did not calm down and stop his unrelenting and disruptive behavior. But, S.L. refused to cooperate. It was not until then, after making this sixth request to S.L. to stop any further material disruption to the school that Officer Dadd decided to arrest S.L. While in the school’s office, after being handcuffed, S.L. continued his distressing tirade, actions which continued to impede normal school activities as well as disrupt school administrators’ normalized daily functions. S.L.’s disturbance in the school’s office led Officer Dadd to call another officer, Officer Calzadilla, for assistance. Even still, S.L.’s antics continued. Though S.L. was now handcuffed, his behavior continued to disrupt the activities of the school’s office to such a degree that it was decided to take S.L. out of the school and into Officer Calzadilla’s police car.

When S.L. was brought into the hallway outside of the school’s office, S.L.’s disruptive behavior intensified as he began to struggle and loudly curse, which echoed in the enclosed hallway. Once outside, S.L. continued to physically and verbally insult and abuse the police officers in front of the school’s staff. S.L.’s behavior was so out of control that a third, female officer was requested. Even then, S.L. continued his antics, kicking, screaming, yelling, and cursing at the female police officer, calling her a “B.” Officer Dadd, and the two other officers, then placed S.L. outside of the police car on the floor in front of the school. Therefore, the State presented sufficient evidence that S.L.’s behavior disrupted the school’s normalized activities and the school administrators’ functions. See M.C., 695 So.2d 477; see also T.J., 867 So.2d 1288 (holding that student’s behavior constituted the disruption of an educational institution after student’s removal from a classroom for being disruptive and the refusal to calm down, after repeated warnings that included an explanation on what would happen if he did not calm down, in a common area of the school, which interfered with the community assistant’s normalized function to assist other students).

Also, as in M.C., there is sufficient evidence that supports the trial court’s determination that S.L.’s actions were intended to cause a disruption to the school’s function and activity. See also M.M., 997 So.2d at 474. S.L.’s actions first caused a disruption to the school’s activity and the school administrators’ function when, for no reason, he began hurling obscenities at Officer Dadd, knowing that there was a group of students that surrounded him in the hallway. Also, S.L. acted with reckless disregard to the school’s normalized function and activity when he continued his disruptive behavior after seeing teachers and students deviate from their normalized daily schedule of coming and going to the cafeteria because of his actions. In addition, S.L.’s behavior caused a disruption to the school’s students, teachers, and other school staff members’ normalized activity when S.L. entered, turned, loudly yelled obscenities at Officer Dadd, and ran through the cafeteria during the school’s regularly-scheduled lunchtime. Further, after speaking with Dean Jefferson and Officer Dadd in the front of the cafeteria, S.L.’s behavior continued to disrupt the normalized functions of the school’s administrators when he refused to calm down. Moreover, S.L.’s unruly behavior continued even after he was brought into the school’s office and was told what would happen if he did not calm down, behavior which even continued after officers placed S.L. in the police car. Thus, “[t]his is sufficient to establish a violation of section 877.13.” Id. (affirming conviction where evidence established that “M.M. knew there were other students on the bus as it prepared to leave and that by leaving the bus he disrupted its schedule, as well as the schedule of other buses.”); see also J.J., 944 So.2d 518 (affirming conviction where students were incited to fight after repeated requests to stop, resulting in the cafeteria getting louder, and disrupting school’s breakfast service); T.T. v. State, 865 So.2d 674 (Fla. 4th DCA 2004) (affirming conviction after student who disrupted an awards ceremony refused to leave with an officer).

Furthermore, the majority incorrectly concludes that S.L.’s disruption was not “material,” because it erroneously relies on the fact that S.L.’s school, the Renick Educational Center, is a school for emotionally and behaviorally disturbed children. Thus, the majority mistakenly determined that, because part of the teachers’ functions may have been to assist behaviorally disturbed children, and that they “did a marvelous job” by accelerating normalized lunchtime activities, there was no “material” disturbance. However, this factor has already been addressed by the Fifth District as being non-determinative in analyzing whether a conviction should be upheld under section 877.13. In T.J., 867 So.2d 1238, the Fifth District held that, although part of a teacher’s job responsibility was to assist students with behavioral problems, continued disruptive behavior amounts to an interference with a normalized school function. T.J. was placed outside of his classroom for his disruptive behavior and sent to one of the school’s assistants who helps disruptive students by attempting to return them to class once they have been removed. Id. at 1239-40. The school’s assistant testified that he attempted to calm T.J., but T.J. continued to be disruptive, by cursing and being irate. Id. T.J. also interrupted students who were in proximity to him and prevented the assistant from helping other students. Id. Because the assistant could not stop T.J.’s disruptive behavior, he called the school’s security officer. Id. T.J. failed to comply with the security officer, and was subsequently arrested. Id. The Fifth District upheld T.J.’s conviction, finding his continued disruptive behavior amounted to the disruption of an educational institution’s normalized function. Id. Thus, contrary to the majority’s characterization, even though the Renick teachers may have been trained to work with disturbed students, this factor should not be used to determine whether S.L.’s behavior disrupted the school’s normalized functions.

Here, there was sufficient evidence that S.L. intended to disrupt school activities, and succeeded in doing so. S.L. was repeatedly asked to calm down and stop numerous times, which he did not do. As a result of S.L.’s behavior, the school’s normalized daily lunchtime activities and functions had to be accelerated. Notably, Dean Jefferson testified that, in his experience as a twenty-eight year professional with Miami-Dade Schools, and as the Dean of Discipline at the Renick Educational Institution, S.L.’s actions disrupted normal school functions. And, furthermore, S.L.’s actions interfered and disrupted Officer Dadd’s normalized daily functions as the school’s officer.

Taking all facts as true and viewed in a light most favorable to the State, the evidence in this case was sufficient for the trial court to conclude that S.L. intended to disrupt or interfere with a school activity or function and succeeded in doing so.

Accordingly, I would affirm the trial court’s denial of S.L.’s motion for judgment of dismissal because there is sufficient evidence to sustain S.L.’s conviction.

      . S.L.'s adjudication in this case caused him to be found in violation of probation on four other cases: J09-1272, J09-6184, J09-4488A, and J10-1704. S.L. has appealed those orders as well. We summarily affirm the probation violation orders in each of these cases.

      . Dean Jefferson testified S.L. was yelling epithets, such as “I can't stand the Po, Po.”; "I hate the Po[,] Po.”; "F the Po, Po.”; "You cracker Po[,j Po.”; and "Po, Po could suck my you know what.”, as well as making hand gestures, such as grabbing his crotch.

      . In Florida, if there is reason to believe a person has a mental illness, and if there is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or others in the near future, and if certain other prerequisites are met, the "Baker Act” authorizes law enforcement officers to take that person into custody and deliver the person to a facility for an involuntary psychiatric examination. See § 394.463, Fla. Stat. (2010).'

      . In M.C., we interpreted the term “disrupt” synonymously with term "interfere,” meaning "to throw into confusion or disorder,” or “to interrupt or impede the progress.” Id. at 483.

      . As previously indicated, the Renick Educational Center is a school for emotionally and behaviorally disturbed children. In the event of an incident, the teachers are trained to move their students away from the situation. There were three classes of students in the hallway at the time of the incident in this case. The teachers simply stepped up the pace of the movement of their classes to their destinations, the cafeteria or classrooms, so any children who might have reacted did not have a chance to react.

      . I agree with the majority that, as to the second count, resisting arrest without violence, S.L.’s adjudication should be affirmed.

      . The cases cited by the majority are distinguishable insofar as the cases hold that reversal is necessary where there was no evidence presented of an intent to disrupt the institution and that the institution was disrupted. See A.M.P. v. State, 927 So.2d 97 (Fla. 5th DCA 2006) (reversing conviction where there was no evidence of an intent to disrupt the institution, but instead, the evidence was limited to a fight between two high school students in a bathroom before school started); S.W.W. v. State, 833 So.2d 877 (Fla. 3d DCA 2003) (reversing conviction where there was no evidence that the accused acted to create a disturbance or that he acted with reckless disregard of the effect of his behavior); L.T. v. State, 941 So.2d 551 (Fla. 2d DCA 2006) (reversing conviction where there was no evidence that the accused intended to stop or impede a normal school function, but rather, evidence established that accused joined an already on-going fight with the intent of protecting her sister).


author: PER CURIAM.

text:
    James S. DAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3840.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for Appellee.
   PER CURIAM.

Appellant James S. Day, Jr. appeals from the denial of his amended motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion included four claims of ineffective assistance of counsel, and a claim that the trial court failed to rule on a post-sentence motion to withdraw plea. On appeal, the Appellant challenges only the summary denial of claims one and three (ineffective-assistance of counsel), and five (motion to withdraw plea). We affirm without comment the summary denial of claims one and three, but remand with directions for further proceedings on the outstanding motion to withdraw plea.

We reject the state’s argument that the motion to withdraw plea was untimely when accepted by the clerk’s office on December 1, 2008. In this case, the trial judge’s written sentencing order was rendered by filing with the clerk below on October 31, 2008. See Bermudez v. State, 901 So.2d 981, 984 (Fla. 4th DCA 2005), approved on other grounds in Sheppard v. State, 17 So.3d 275, 287 (Fla.2009). Florida Rule of Criminal Procedure 3.170(1) requires that a motion to withdraw plea after sentencing be filed within thirty days of sentencing. Although it is true that the thirtieth day after October 31, 2008 was Sunday, November 30, the motion to withdraw plea in appellant’s case was not untimely because under Florida Rule of Criminal Procedure 3.040:

In computing any period of time ... the last day of the period ... shall be counted, unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day that is neither a Saturday, Sunday, nor legal holiday....

Thus, the thirtieth day from rendition of the sentences imposed by the trial court was extended by rule 3.040 to December 1, 2008, making the motion to withdraw timely. Accordingly, summary denial of ground five was error.

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

HAZOURI, DAMOORGIAN and GERBER, JJ., concur.


text:
    Gary McCUTCHEON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4506.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s convictions are affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012). The state concedes that a scrivener’s error occurred on appellant’s sentence in case number 09-10979CF10A when appellant was sentenced as a habitual offender on the grand theft count. For that reason, we remand with directions for the trial court to delete the habitual offender designation on appellant’s sentence for grand theft.

Affirmed, but remanded for correction of sentence.

GROSS, LEVINE, JJ., and ROSENBERG, ROBIN L„ Associate Judge, concur.


author: GERBER, J.

text:
    Janine SANTIAGO, Appellant, v. Mier ABRAMOVITZ, Appellee.
    No. 4D11-711.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.

      Richard A. Kupfer of Richard A. Kup-fer, P.A, Delray Beach, and Dewey H. Varner, Lake Worth, for appellant.
    Sharon C. Degnan of Kubieki Draper, Fort Lauderdale, for appellee.
   GERBER, J.

The plaintiff appeals the trial court’s order denying her motion for a new trial on damages due to the jury’s zero verdict. She argues that the zero verdict was inadequate as a matter of law because:

(1) the defendant stipulated before trial that his negligence caused the accident;

(2) the defendant stipulated during trial that the plaintiff sustained a permanent injury because of the accident; and (3) the trial court gave the following jury instruction:

Based upon the admission of the defendant, the Court has determined and now instructs you that the defendant was negligent and such negligence was a legal cause of some loss, injury or damage to the plaintiff. Plaintiff is, therefore, entitled to recover from the defendant for the loss, injury or damage as shown by the greater weight of the evidence to have been caused by the defendant.

(emphasis added).

We agree with the plaintiff and reverse for a new trial on damages. See, e.g., Martin v. Brubaker, 87 So.3d 797, 798-99 (Fla. 2d DCA 2012) (“[T]he failure to award at least the costs of the initial medical evaluations as damages was against the manifest weight of the evidence.”); Hartsfield v. Orlando Reg’l Med. Ctr., Inc., 522 So.2d 66, 68 (Fla. 5th DCA 1988) (“The law seems to be very clear, almost without exception, that when a plaintiff has suffered some damages from the negligence of the defendant, the jury cannot reasonably return a verdict for zero damages, and the appellant is entitled to a new trial.”) (citations omitted); Short v. Ehrler, 510 So.2d 1110, 1111 (Fla. 4th DCA 1987) (“[Sjince it was undisputed that the plaintiff suffered some damages from the collision negligently caused by the defendants, the jury could not reasonably have returned a zero verdict.”). But see Smith v. Fla. Healthy Kids Corp., 27 So.3d 692, 694 (Fla. 4th DCA 2010) (“It is not necessary to grant a new trial in all cases where the jury returns a zero verdict. In fact, where conflicting evidence exists concerning damages and reasonable [persons] could believe that the plaintiff sustained no damages, a zero verdict will be upheld.”) (emphasis added; citation and quotations omitted).

The plaintiff also argues that the trial court abused its discretion by: (1) denying her motion in limine to exclude evidence regarding a third party’s discounted purchase of the account receivable for one of her medical bills; and (2) allowing the defendant, during closing argument, to allegedly contend inflammatorily that such a purchase amounted to a “kickback” motivated by “greed” for which the third party received a “windfall.” We conclude without further discussion that the trial court did not abuse its discretion in denying the motion in limine. As for the closing argument, when the defendant made the allegedly inflammatory argument, the plaintiff did not object. The plaintiff also did not raise this challenge in her motion for new trial. Thus, the plaintiffs challenge to the defendant’s closing argument is unpreserved, and we have not considered the challenge on its merits. See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1027 (Fla.2000) (“[A] civil litigant may not seek relief in an appellate court based on improper, but unobjected-to, closing argument, unless the litigant has at least challenged such argument in the trial court by way of a motion for new trial even if no objection was voiced during trial.”).

Reversed and remanded for a new trial on damages.

MAY, C.J, and HAZOURI, J., concur.


author: WARNER, J.

text:
    Joanne FINNEGAN, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Ameri-quest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R11, Appellee.
    No. 4D11-939.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    John J. Anastasio, Stuart, for appellant.
    Heidi J. Weinzetl and Ronald M. Gaché of Shapiro, Fishman & Gaché, LLP, Boca Raton, for appellee.
   WARNER, J.

Appellant challenges the final summary judgment of foreclosure entered by the trial court. She claims that her answer and opposition affidavit raised material issues of fact as to whether the appellee satisfied the contractual conditions precedent to foreclosure. We agree that material issues of fact remain and we reverse the summary judgment.

Appellee, Deutsche Bank, filed a complaint alleging that appellant, Finnegan, had failed to make payments on a promissory note and sought foreclosure of the mortgage securing the note. In the complaint, it alleged that all conditions precedent to the acceleration of the mortgage note and foreclosure had occurred. Finnegan filed an answer specifically denying that she had received notice of the default in accordance with the terms of the mortgage. Deutsche Bank then filed a motion for summary judgment. Its affidavit in support did not mention the conditions precedent. Finnegan filed an affidavit in opposition again swearing that she had received no notice of default in accordance with the mortgage provisions. The bank also filed copies of letters allegedly sent to Finnegan but these were not sworn. The trial court eventually entered summary judgment in favor of the bank.

Based upon this record, a material issue of fact remains as to whether the bank satisfied a condition precedent by giving the proper pre-suit notice, as required by sections 15, 20, and 22 of the mortgage. Section 20 provides:

Neither Borrower nor Lender may commence ... any judicial action ... until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.... The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20.

Finnegan alleged in her answer to the complaint and again in her affidavit in opposition to the motion for summary judgment that she did not receive notices in compliance with these sections. While the bank filed copies of letters allegedly sent to her, these were not sworn and could not be considered on a motion for summary judgment. “Merely attaching documents which are not ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla.R.Civ.P. 1.510(e).” Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997). The affidavit filed by the bank did not address the issue of compliance with the notice provisions of the mortgage. Therefore, an issue of fact remains as to whether the bank fulfilled the condition precedent to foreclose the mortgage.

Because a material issue of fact remains, we reverse the summary judgment and remand for further proceedings.

STEVENSON and TAYLOR, JJ., concur.


text:
    George Riley MERCER, Jr., Appellant, v. Catherine Stamatacos MERCER, Appellee.
    No. 4D11-1656.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.

      James R. Quick and Jaime A. Quick of Quick Law Firm, P.A., Jupiter, and Gary A. Woodfield and Susan B. Yoffee of Haile, Shaw & Pfaffenberger, North Palm Beach, for appellant.
    Matthew S. Nugent and Adam M. Zbo-rowski of Nugent Zborowski & Bruce, North Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Ries v. Ries, 984 So.2d 612, 613 (Fla. 4th DCA 2008). As to appellant’s claim that the court adopted the wife’s final judgment without providing him with service of the proposed final judgment, appellant’s pleadings were stricken for failure to provide discovery, and he was sanctioned and excluded from the courtroom for obstructive behavior. We conclude that Florida Family Law Rule of Procedure 12.080(c) applies. That rule provides that “[n]o service need be made on parties against whom a default has been entered.... ”

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Idelir H. MACK, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2038.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Lisa M. Okoh, Texas, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s Rule 3.850 motion. The claim that the trial court did not advise about deportation consequences during the 1986 plea colloquy is without merit. At the time of the plea, the court had no duty to advise about deportation consequences. See State v. Ginebra, 511 So.2d 960 (Fla.1987); In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988). In addition, the claim is untimely as it was not brought within the two-year window created by State v. Green, 944 So.2d 208 (Fla.2006), and because no transcript of the plea colloquy exists, the court had discretion to deny. Id. at 218.

Appellant claims that counsel did not advise him about the possibility of deportation and told him to accept the plea offer to avoid jail time. Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), however, does not apply retroactively. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

Further, appellant’s conviction for simple cocaine possession may not be an “aggravated felony” under the federal Controlled Substances Act and he may not be subject to “automatic” deportation as was the case in Padilla. See Lopez v. Gonzales, 549 U.S. 47, 53, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) (holding that a conviction for felony drug possession under state law did not qualify as an “aggravated felony” because the offense constituted a misdemeanor under the Controlled Substances Act).

Affirmed.

MAY, C.J., DAMOORGIAN and LEVINE, JJ., concur.

      . ‘‘Under the immigration statutes ... the Attorney General’s discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. [8 U.S.C.] § 1229b(a)(3).“ Lopez, 549 U.S. at 50.


text:
    Dean C. BALIKOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2318.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Dean C. Balikos, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s October 2010 Florida Rule of Criminal Procedure 3.800(a) motion. Appellant claims that the trial court lacked jurisdiction in December 2003 when it corrected his sentence on two counts to remove illegal prison releasee reoffender (PRR) designations.

Appellant had filed a notice of appeal a few days before the court held the hearing at which it corrected the sentences. He also complains that his attorney did not appear for the hearing.

During the time permitted for a Rule 3.800(b)(2) motion, the court had jurisdiction to grant the State’s motion to correct the sentence in the defendant’s favor. Fla. R.Crim. P. 3.800(b) (“Motions may be filed by the state under this subdivision only if the correction of the sentencing error would benefit the defendant or to correct a scrivener’s error”). We find no jurisdictional error that warrants postconviction relief.

Appellant was represented at his original sentencing hearing, but not when the court removed the PRR designations. The lack of representation during a portion of a sentencing proceeding does not result in an “illegal sentence” that can be corrected at any time in a Rule 3.800(a) motion. See Jackson v. State, 983 So.2d 562, 574 (Fla.2008). A lack of counsel during a portion of a sentencing proceeding is not a fundamental error. Id. at 574-75. As in Jackson, the defendant in this case was represented during his original sentencing. He lacked counsel only when the court merely removed illegal PRR designations and corrected the sentence in defendant’s favor. Because the court simply vacated the illegal PRR designations in this case, any error is harmless. Id. at 575-76.

Affirmed.

WARNER, DAMOORGIAN and GERBER, JJ., concur.


text:
    Roosevelt SEYMORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3254.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Roosevelt Seymore, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Pursuant to the State’s concession, we reverse the order denying the defendant’s Rule 3.800(a) motion and remand the case to the trial court. See Thompson v. State, 17 So.3d 307 (Fla. 4th DCA 2009). The trial court explained that appellant’s claim that his sexual predator designation was illegal was without merit, but failed to attach records showing that defendant did in fact agree to the designation as part of his plea bargain.

The defendant argued that he lacked the required prior conviction. The court concluded that the designation was legal because the defendant was convicted of a first-degree felony that is enumerated in the statute, and a prior conviction was not necessary. § 775.21(4)(a)la, Fla. Stat. (2003). While this conclusion, if factually accurate, appears correct, the trial court did not attach any records supporting its conclusion. We are constrained by the caselaw to reverse.

On remand, the court may attach the records refuting the claim. The defendant is cautioned that sanctions may be imposed if he initiates a frivolous appeal. See State v. Spencer, 751 So.2d 47 (Fla.1999); § 944.279(1), Fla. Stat. (2012); § 944.28(2)(a), Fla. Stat. (2012).

Reversed and remanded.

MAY, C.J., WARNER and POLEN, JJ., concur.


text:
    Pedro CIFUENTES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3972.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Pedro Cifuentes, West Park, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s motion for postconviction relief, which challenged his 1996 no contest plea to charges of resisting with violence and battery. His claims are procedurally barred as untimely. Fla. R.Crim. P. 3.850(b). We reject his claim that Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is retroactive. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

Further, even if Padilla is found to be retroactive, appellant does not allege that the court failed to give the standard deportation warning of Florida Rule of Criminal Procedure 3.172(c)(8), and his claim is insufficient to merit relief. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010), petition for review pending, No. SC11-989.

Affirmed.

STEVENSON, TAYLOR and HAZOURI, JJ., concur.


text:
    Lee Anthony RECIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3980.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Lee Anthony Recio, Lake Butler, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant is cautioned against future motions, petitions or appeals raising the same challenges to his sentence in this case. Such attempts will result in referral to the appropriate institution for consideration of disciplinary procedures which may include forfeiture of gain time, see § 944.279(1), Fla. Stat., and issuance of an order to show cause why further sanctions barring pro se filings should not be imposed as well under State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999).

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


text:
    Scott KATZMAN, M.D. and Advanced Orthopaedics, P.A., Petitioners, v. Collin McCOSH, Elvira Jenkins and Mark Mendat, Respondents.
    No. 4D11-4229.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Kimberly P. Simoes and Mario B. Si-moes of The Simoes Law Group, P.A., Deland, for petitioners.

      Patrick B. Flanagan of Flanagan & Ma-niotis, P.A., West Palm Beach, for respondents Collin McCosh and Elvira Jenkins.
   PER CURIAM.

The non-party deponents petition for a writ of certiorari seeking to quash the circuit court’s October 18, 2011 order granting the defendants’ motion to compel and denying the non-party deponents’ motion for protective order and objections. The defendants concede that this court should grant the petition pursuant to our opinion in Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011), which we issued after the circuit court entered the order now on review. We agree with the concession and grant the petition.

Petition Granted.

STEVENSON, GERBER and LEVINE, JJ., concur.


author: CIKLIN, J.

text:
    Toni BAULER, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT, Appellee.
    No. 4D11-4341.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Toni Bauler, Dania, pro se.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Child Support Enforcement, Tallahassee, for appellee.
   CIKLIN, J.

Toni Bauler, the mother and custodial parent of two minor children, appeals a final administrative support order in which the Department of Revenue determined that Michael Wormley, the father and noncustodial parent of the children, had no child support obligations. Because we find that the Department’s exercise of discretion was in violation of a statutory provision, we reverse the final administrative support order and remand the case to the Department for further administrative proceedings.

On June 30, 2011, the Department accepted the mother’s application for an administrative support order and commenced an administrative proceeding against the father pursuant to section 409.2563, Florida Statutes. Both parents submitted financial affidavit forms to the Department. See § 409.2563(13), Fla. Stat. (2011). The mother’s form indicated that she had no current income. As required by the Department if one is unemployed, the mother listed her former employer and former rate of pay. The father’s affidavit was completely blank as to his income, assets, and liabilities. Furthermore, the father failed to identify his last job and rate of pay.

The Department obtained information on the father’s unemployment compensation benefits which showed that he had lost his previous job in February 2010 and had collected unemployment benefits from February 2010 through March 2011, when he exhausted his benefits. The Department did not obtain any information regarding unemployment claims made by the mother, but it did obtain other information on her employment history which was consistent with her assertion regarding her former employment.

On November 11, 2011, the Department rendered its final administrative support order. In that order, the Department imputed federal minimum wage to the mother, but found that the father was involuntarily unemployed with no net monthly income. Based on that determination, the father’s child support obligation calculated under the child support guidelines was $0 per month. Therefore, no support was ordered.

Pursuant to section 409.2563(5)(a), Florida Statutes, the Department is required to “calculate [a] parent’s child support obligation under the child support guidelines schedule as provided by s[ection] 61.30, based on any timely financial affidavits received and other information available to the department.” § 409.2563(5)(a). “If there is a lack of sufficient reliable information concerning a parent’s actual earnings for a current or past period, it shall be presumed for the purpose of establishing a support obligation that the parent had an earning capacity equal to the federal minimum wage during the applicable period.” Id.

The Department found that there was “a lack of sufficient, reliable information concerning the [motherj’s actual earnings” and presumed that the mother’s earning capacity was equal to the federal minimum wage. The Department, however, did not equally presume that the father had an earning capacity equal to the federal minimum wage, even though it had less substantial and less reliable information concerning the father’s actual current income than it did concerning the mother’s income. Therefore, we find that the Department’s failure to impute income based on the federal minimum wage to the father was in violation of section 409.2563(5)(a), Florida Statutes.

Accordingly, we reverse the final administrative support order and remand the case to the Department for further administrative proceedings. See § 120.68(7)(e)4., Fla. Stat. (2011) (requiring this court to “remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when it finds that ... [t]he agency’s discretion was ... in violation of a ... statutory provision....”).

On remand, the Department can either impute an earning capacity equal to the federal minimum wage to both parents, or alternatively, the Department can refer the proceedings to the Division of Administrative Hearings to determine if either parent is voluntarily unemployed. See § 409.2563(6) (“If ... the department determines that an evidentiary hearing is appropriate, the department shall refer the proceeding to the Division of Administrative Hearings”).

Reversed and remanded for further proceedings.

GERBER and LEVINE, JJ., concur.


text:
    J.K., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D12-1006.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Antony P. Ryan, Regional Counsel and Crystal K. McBee, Assistant Regional Counsel of Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Jeffrey Dana Gillen, Statewide Appeals Director, Children’s Legal Services, West Palm Beach, for appellee.
   PER CURIAM.

A mother appeals an order terminating her parental rights to her child. She argues that the trial court’s findings are not supported by the evidence. We disagree and affirm.

We have reviewed the record. Numerous witnesses testified to the efforts made to educate the mother on proper parenting skills, to help the mother with mental health issues and to understand the importance of medication compliance, and the need to provide a stable environment for the child. Despite the intervention of Healthy Start, Healthy Families, Family Preservation Services, and New Horizons, little progress was made to warrant reunification between the mother and the child.

As the trial court found, “substantial credible evidence and testimony” supported the finding that the mother “engaged in conduct toward the child ... that demonstrates that the continuing involvement of the parent ... threatens the life, safety, well-being, or physical, mental or emotional health of the child.” See § 39.806(l)(c), Fla. Stat. (2010). The trial court’s order is replete with detailed facts supporting this finding. See, e.g., D.B. v. Dep’t of Children & Families, 87 So.3d 1279, 1280 (Fla. 4th DCA 2012) (finding that the trial court’s “numerous findings of fact” supported termination of parental rights).

The court found no suitable permanent custody arrangement with a relative existed. However, it is likely that adoptive parents will be found. It is thus in the manifest best interest of the child to terminate the mother’s parental rights. We agree that termination is the least restrictive means of protecting the child and to ensure the ultimate welfare and best interest of the child given the facts of the case. We therefore affirm.

Affirmed.

MAY, C.J., HAZOURI and DAMOORGIAN, JJ., concur.


author: MAY, C.J.

text:
    Richard T. SMITH and Diebold Incorporated, Petitioners, v. William V. ELDRED, Respondent.
    No. 4D12-821.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.
    Sanford R. Topkin of Topkin, Egner, Partlow & Rader, P.L., Deerfield Beach, for petitioners.
    Pamela Beckham of Beckham & Beck-ham, P.A., Miami, for respondent.
   MAY, C.J.

The defendant in an accident case petitions this court for a writ of certiorari to quash a trial court order. That order overruled the defendant’s objection to the plaintiffs Notice of Intent to serve a subpoena and Notice of Service of Expert Witness Request for Production directed to the defendant’s liability expert. The defendant argues that Florida Rule of Civil Procedure 1.280(b)(4) does not allow a party to serve a subpoena or a Request for Production. Further, a party may request the court to seek discovery of financial or business records by other means, but only when unusual or compelling circumstances exist. We agree and grant the petition.

Rule 1.280(b)(4) provides in pertinent part:

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 1.390 without motion or order of court.
An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(4)(C) of this rule concerning fees and expenses as the court may deem appropriate.

Fla. R. Civ. P. 1.280(b)(4) (emphasis added).

“A reading of rule 1.280(b)(4) in its entirety reveals an intent to restrict the information that can be discovered from the expert, even though the discovery is answered by the party.” Allstate Ins. Co. v. Boecher, 733 So.2d 993, 998-99 (Fla.1999). “By its terms the rule allows a party to obtain information about another party’s expert initially only through the vehicle of interrogatories.” Cont’l Ins. Co. v. Cole, 467 So.2d 309, 311 (Fla. 4th DCA 1985) (emphasis in original). “ ‘Discovery by other methods may not be pursued until these interrogatories have been served.’ ” Id. (quoting 4 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice ¶ 26.66[3], n. 9 (2d ed. 1987)) (holding that a request for admissions was an “inappropriate method” of initially obtaining discovery regarding another party’s expert).

The Second District Court of Appeal addressed a similar issue in Price v. Hannahs, 954 So.2d 97 (Fla. 2d DCA 2007). There, an expert witness asked the district court to quash a trial court order compelling him to produce documents. Id. at 98. The opposing party had a subpoena duces tecum issued, requesting thirty categories of documents. Id. The documents were primarily related to the treatment of the plaintiff, but included billing charges and payments. Id. When the expert appeared for deposition, he did not produce all the requested documents and became rather belligerent during the deposition. Id. The defendant then filed a motion for sanctions. Id. at 99.

The court reserved ruling on the sanctions and directed the expert to appear for another deposition. Id. Defense counsel amended the subpoena duces tecum for the next deposition. Id. Some categories of items requested “did not relate to this plaintiffs treatment, but appeared designed to ferret out the expert’s general bias for a particular side in litigation.” Id. Once again, the expert terminated the deposition and failed to produce all requested documents. Id. Subsequently, defense counsel found the expert’s response to request for production, which had been mailed to counsel’s office prior to the deposition. Id.

Defense counsel filed a new motion for an order to show cause and sanctions. Id. The court ordered the expert to appear again and remain until the conclusion of the deposition. Id. The court further ordered the expert to produce all documents requested and imposed a $1,500 sanction. Id.,

On appeal, the Second District reversed the sanction. Id. at 100. The court found that the order compelling production of documents by a nonparty was “reviewable by certiorari because [the non-party had] no adequate remedy by appeal.” Id. The court further concluded “that the order departs from the essential requirements of law because the circuit court failed to apply the correct law.” Id. The court granted the petition and quashed that part of the order requiring the expert to produce certain documents that were beyond the scope of the rule. Id. at 101.

While it is true that the scope of documents requested in Price differs from those requested in this case, the import of the case applies equally here. Rule 1.280(4)(b) means what it says and says what it means. See also, Miller v. Harris, 2 So.3d 1070, 1073 (Fla. 2d DCA 2009) (quashing an order compelling production of financial documents from an expert witness without a finding of unusual or compelling circumstances).

Rule 1.280(4)(b) confines both the discovery methods that can be employed when directed to expert witnesses and the subject matter of that discovery. In this case, we face only the discovery method employed by the plaintiff. The rule calls for a party to first propound interrogatories. Fla. R. Civ. P. 1.280(b)(4)(A)(i). Once disclosed as an expert, that person may be deposed. Fla. R. Civ. P. 1.280(b)(4)(A)(ii). Scope of employment, compensation, general litigation experience, percentage of work performed for plaintiffs or defendants, identity of other cases, and an approximation of the expert’s involvement as an expert witness are all fair game. Fla. R. Civ. P. 1.280(b)(4)(A)(iii). The production of financial and business records, however, may be required “only under the most unusual or compelling circumstances.” Fla. R. Civ. P. 1.280(b)(4)(A). A request for production is simply NOT a method condoned by the rule except “[u]pon motion.” Id. We therefore grant the petition and quash the order of the circuit court.

Petition granted; order quashed.

STEVENSON and HAZOURI, JJ., concur.

      . The defendant had requested documents substantiating the percentage of the expert’s patients who had personal injury claims or had suffered injuries from an auto accident, and other non-existent documents. Price, 954 So.2d at 99.


author: DAVIS, Judge.

text:
    T.J.S., Petitioner, v. Adonis MILES, Superintendent for the Department of Juvenile Justice, Respondent.
    No. 2D11-4244.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2012.

      Julianne M. Holt, Public Defender, and James Lyons, Assistant Public Defender, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Judge.

Petitioner T.J.S., a juvenile, filed her petition for an emergency writ of habeas corpus seeking release from the detention center where she was being held under a secure detention order. We denied relief in a previous order, and this opinion now follows.

T.J.S. was placed on juvenile probation on May 5, 2011, for two misdemeanor offenses. The conditions of TJ.S.’s probation included condition three, requiring that “[t]he child must not change or leave his/her residence, school, or place of employment without the consent of his/her parents and juvenile probation officer,” and condition five, providing that “[t]he child must cooperate fully and maintain contact with his/her probation officer.”

On August 3, 2011, the probation officer visited the home where T.J.S. was supposed to be residing but could not locate her there. TJ.S.’s mother reported T.J.S. as a runaway, stating that T.J.S. had left without her permission and that she did not know T.J.S.’s whereabouts. The probation officer thereafter filed his affidavit of violation of probation, alleging that T.J.S. had violated conditions three and five of her supervision.

On August 9, 2011, the trial court issued an order to take T.J.S. into custody. This order was executed on August 21, 2011, and the child was taken to the Hillsbor-ough County Juvenile Assessment Center and held in secure detention until the detention hearing the following day. At that hearing, it was determined that TJ.S.’s Risk Assessment Instrument (RAI) score was thirteen points. Based on this score, the trial court entered an order holding her in secure detention until the hearing on the violation of probation (VOP). It is this order that T.J.S. now challenges.

T.J.S. argued below, and argues again in her petition for writ of habeas corpus, that the RAI improperly classifies her as an absconder — resulting in ten of the thirteen assessed points. She maintains that she does not meet the requirements for that classification and that without the erroneous assessment of these points, the RAI score would have required that she be released pending her VOP hearing.

T.J.S. further contends that because the Florida Statutes do not define “absconder,” the definition of the term provided in the Department of Juvenile Justice practice materials should be used in determining whether absconder points can be assessed against a juvenile pursuant to section 985.255, Florida Statutes (2010). She maintains that the State failed to prove her absconder status as provided in the Department’s materials because it failed to show that she was hiding or absenting herself with the intent to avoid legal process. We disagree.

It is true that the legislature has not defined the word “absconder” for the purposes of scoring a juvenile RAI, and we agree that without such a definition, the trial court should look to the definitions provided in the Department’s practice manuals. But based on the testimony presented at the detention hearing, we conclude that T.J.S. met the Department’s definition of absconder, which is as follows:

1. A youth is considered an absconder if he/she “goes in a clandestine manner out of the jurisdiction of the courts in order to avoid legal process[,”] or “to hide, conceal, or absent oneself clandestinely, with the intent to avoid legal process[.”]
a. The juvenile probation officer must have cause to believe that the youth is deliberately avoiding supervision or has removed himselfiherself from the home or community to avoid supervision and the legal process. A youth reported by the parent(s)/guardian(s) to have run away without the parent(s’)/guardian(s’) knowledge of their whereabouts, is considered to be an absconder.
b. There must be intent to avoid the legal process. Simple absence or not appearing for appointments does not constitute absconding, but may constitute a technical violation of the conditions of probation.

B.M. v. Dobuler, 979 So.2d 308, 314 (Fla. 3d DCA 2008) (quoting Department of Juvenile Justice, Probation & Community Corrections Handbook, 6-27-28 (2006) (emphasis omitted)).

It is undisputed that T.J.S. was ordered not to leave or change her address without the permission of her parents and her probation officer. Based on the documents considered at the detention hearing, it can be determined that she left her home at 12:45 p.m. on August 3 and did not return home of her own accord. Her mother had reported her as a runaway and did not know her whereabouts until the child was apprehended by law enforcement on August 21. Accordingly, the State established that during this time the child was not under the supervision of her parents or her probation officer as required by the court ordered terms of her probation.

The record also shows that the probation officer left messages with relatives and friends instructing T.J.S. to contact him. It was not until she was apprehended by law enforcement on the pick-up order that her parents or probation officer had any contact with her. These facts support the finding that she did hide, conceal, or absent herself clandestinely because she failed to advise her parents or her probation officer of her whereabouts or well-being or to otherwise contact them. From this it can be inferred that T.J.S. was attempting to “avoid the legal process.”

At both the detention hearing and in the instant petition, counsel for T.J.S. argues that the Department handbook’s use of the term “the legal process” is more narrow than the definition required to detain T.J.S. as an absconder. Counsel maintains that “the intent to avoid the legal process” means that the State must show the intent “to avoid arrest, prosecution, service or process.” Counsel further argues that the Department handbook’s definition requires that the State show that T.J.S. concealed herself “with the intent to avoid the means of legal process.” As support for this argument, counsel cites the Third District’s B.M. opinion, which rephrased the definition of absconder to require that the State show that the juvenile was absent in an “effort to avoid judicial process.” 979 So.2d at 314 (emphasis added). In that case, the Third District concluded that the frequent occasions on which B.M. ran away did not meet such a definition. Id. As support for this conclusion, the Third District relied on the portion of the Department’s definition of absconder that states that simple absence and not appearing for appointments do not show the intent to avoid the legal process. Id.

But Respondent here argues that the term “intent to avoid the legal process” means the intent to avoid the requirements of the probation order entered by the court. The trial court accepted the State’s definition below in assessing the absconder points against T.J.S., stating as follows:

It’s not like she was over, staying with her grandmother, where everybody knew where she was. She was avoiding her JPO. She was avoiding her mother. She was not available to be supervised, as she is required to be. And she was apparently, secreting herself, hiding herself, concealing herself in a clandestine-manner, out of the jurisdiction [of the] court, to avoid the legal process.

We agree with the trial court. We do not read the Department handbook’s definition to require a showing that the minor’s absence displays an intent to avoid judicial process, i.e., the service of court documents, arrest, etc. Rather, we read the phrase “the legal process” to encompass the requirements governing a child’s conduct imposed by the trial court in an order of probation. See § 985.255(l)(a), (3)(a).

A juvenile probation order results from a minor’s prior misconduct, and the probation program is a form of supervision that is designed to provide correction and rehabilitation as an alternative to removal from the home and placement in a residential facility. See § 985.08(48) (“‘Probation’ means the legal status of probation created by law and court order ... in which the freedom of the child is limited ... in lieu of commitment to the custody of the department.”). For the juvenile to be able to leave home without the permission or knowledge of the parents for weeks at a time totally deprives the child of the supervision that is the essence of a program of probation. Cases such as B.M., where a child merely absents himself overnight or fails to keep a curfew, are correct in suggesting that such absences are distinguishable from those that are indicative of the intent to avoid court ordered supervision and thus the legal process. Such a reading of B.M. does not require us to limit the scope of the legal process to instances of judicial process and is in keeping with the Department handbook’s definition of absconder and the use of the term as applied to juveniles who purposefully absent themselves from court ordered supervision.

Applying this reasoning, we conclude that T.J.S. did absent herself in such a manner and for such a time as to provide the trial court with a basis to infer that her intent was to avoid supervision and the legal process as outlined in her probation order. Accordingly, there was sufficient competent evidence presented to the trial court to support the trial court’s finding that T.J.S. was an absconder, and the ten points applied to her RAI for absconding were not in error.

T.J.S. thus was properly subjected to placement in secure detention, and her petition is denied.

Denied; conflict certified.

BLACK, J., concurs.

CASANUEVA, J., concurs in result only.

      . To the extent that our reading of the definition of absconder could be read to differ with that of the Third District in B.M., by not limiting the legal process solely to instances of judicial process, we certify conflict. Additionally, we would suggest that the legislature should seriously consider providing the trial courts with a statutory definition of absconding for use in completing the RAIs for the determination of when secure detention is appropriate.


text:
    Michael JOHNSON, aka, Shannon Dawson, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2023.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2012.
    Michael Johnson, aka, Shannon Dawson, Fort Lauderdale, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).


text:
    Miguel RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2021.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2012.
    Miguel Rivera, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, ROTHENBERG and LOGUE, JJ.
   PER CURIAM.

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

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

Reversed and remanded for further proceeding.


text:
    Cornell GUTHRIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1984.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2012.
    Cornell Guthrie, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTEÑAS, ROTHENBERG and LOGUE, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceeding.


text:
    D.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-135.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2012.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and SALTER, JJ.
   An Appeal from the Circuit Court for Miami-Dade County, Abby Cynamon, Judge.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).