author: WALLACE, Judge.

text:
    Bobby CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1664.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Bobby Clark appeals from the trial court’s order denying his motion to correct sentencing error filed in accordance with Florida Rule of Criminal Procedure 3.800(b)(2). Because the sentence violates the Prison Releasee Reoffender Punishment Act (PRRPA), § 775.082(9), Fla. Stat. (2000), we reverse and remand for resentencing.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

The State initially charged Clark with the offense of robbery with a firearm or other deadly weapon, § 812.13(2)(a), Fla. Stat. (2000), a first-degree felony punishable by life. The offense was alleged to have been committed in May 2001. Later, in accordance with a plea agreement, Clark pleaded guilty to simple robbery, § 812.13(2)(c), a second-degree felony. The trial court sentenced Clark under the agreement as a habitual felony offender (HFO) to a true split sentence of thirty years’ prison, suspended after fifteen years, with the remainder to be served on probation. The trial court also imposed a concurrent fifteen-year mandatory minimum sentence under the PRRPA. This sentence was illegal because the incarcera-tive portion of the HFO sentence was equal to the minimum prison releasee reof-fender (PRR) sentence length, which is not permitted under the PRRPA. See Grant v. State, 770 So.2d 655, 658-59 (Fla.2000); Johnson v. State, 927 So.2d 251, 252 (Fla. 2d DCA 2006).

Clark filed a motion to correct illegal sentence in accordance with rule 3.800(a). The State conceded that the sentence was illegal; it suggested that the trial court could cure the problem by re-sentencing Clark to thirty years’ prison, suspending fourteen years and 364 days of the sentence, thereby making the incarcer-ative portion of the HFO term one day longer than the minimum PRR term. Instead, the trial court did the opposite, re-sentencing Clark to thirty years’ prison and suspending the last fifteen years and one day of the sentence, thus making the HFO portion of the sentence one day shorter than the PRR minimum. The resulting sentence is still illegal. “[I]f the incarceration portion of an HFO sentence does not exceed the PRR sentence, the sentences violate the PRR.” Johnson, 927 So.2d at 252 (citing Grant, 770 So.2d at 659). In addition, the trial court did not pronounce Clark’s HFO status at the re-sentencing hearing, and the HFO designation was omitted from the second set of sentencing documents.

Clark appealed from the second sentence. While the appeal was pending, he filed a motion to correct sentencing error under rule 3.800(b)(2). Following a third sentencing hearing, the trial court corrected the sentencing documents to reflect Clark’s HFO status but failed to correct the sentence itself.

II. CLARK’S APPELLATE ARGUMENTS

On appeal, Clark makes two arguments. First, he argues, as he did in his 3.800(b)(2) motion, that when the trial court sentenced him the second time and failed to pronounce his HFO status, the trial court could not, at the third sentencing, reimpose his HFO status. For this reason, Clark concludes that he has been illegally sentenced to thirty years’ prison for a second-degree felony because he was not sentenced as an HFO. Alternatively, Clark contends that even if his HFO status survives the error in the second sentence, his sentence is still illegal because the incarcerative portion of the HFO sentence is less than the minimum PRR sentence. On Clark’s second argument, the State properly concedes error.

III. DISCUSSION

A. The Failure to Repronounce HFO Status at Resentencing

Addressing Clark’s first issue, we hold that the trial court’s inadvertent failure to orally pronounce Clark’s HFO designation at his second sentencing hearing did not prevent the trial court from subsequently correcting the error. See Vickers v. State, 967 So.2d 1060, 1061 (Fla. 5th DCA 2007) (allowing for correction of re-sentencing documents to reflect the HFO designation); Duhart v. State, 930 So.2d 654, 656 (Fla. 3d DCA 2006) (holding that the trial court’s failure to repeat the defendant’s HFO designation at the fourth sentencing hearing did not prevent the trial court from correcting the omission); Mann v. State, 851 So.2d 901, 903 (Fla. 3d DCA 2003) (holding that where the defendant was sentenced as a habitual violent felony offender [HVFO] in his original sentence, the subsequent omission of the word “violent” at resentencing was just a slip of the tongue and did not affect the defendant’s HVFO status).

In this case, the trial court properly pronounced Clark’s status as an HFO at his first sentencing hearing, and the HFO designation was properly noted in the written sentence. More important, Clark’s sentence resulted from a plea bargain. The State agreed to a reduction in the first-degree felony charge then pending against Clark in exchange for Clark’s plea of guilty to a second-degree felony as an HFO and a PRR. The trial court and the parties at the second sentencing hearing understood that Clark was being resen-tenced as an HFO although Clark had argued that the HFO portion of his sentence should be stricken. In addition, the sentencing scoresheet reflected the understanding that Clark was being resentenced as an HFO and a PRR.

We acknowledge that the Supreme Court of Florida has recently held that when a trial court failed to pronounce orally a defendant’s HFO status in imposing sentence following a violation of probation, the subsequent modification of the judgment and sentence to reflect the defendant’s HFO status violated double jeopardy, even though the original sentence properly contained the HFO designation. State v. Akins, 69 So.3d 261 (Fla.2011). Akins is distinguishable because the sentence under review in that case was a new, final, and legal sentence following a violation of probation, not a correction of a prior illegal sentence. Here, there is no double jeopardy issue because there has never been a legal sentence. See State v. Collins, 985 So.2d 985, 989-90, 992-94 (Fla.2008) (explaining that resentencing is a de novo proceeding and that resentenc-ing as an HFO does not implicate double jeopardy concerns or violate due process). Moreover, Clark accepted his HFO and PRR status as part of his negotiated plea.

B. The Illegality of the Sentence

The State properly concedes that Clark’s sentence is an illegal sentence. “[I]f the incarceration portion of an HFO sentence does not exceed the PRR sentence, the sentences violate the PRR.” Johnson, 927 So.2d at 252 (emphasis added) (citing Grant, 770 So.2d at 659). The State’s suggestion to the trial court that it could impose a 30-year HFO sentence, suspending 14 years, 364 days of that sentence, while still retaining the 15-year PRR mandatory minimum sentence, would have resulted in a legal sentence in accordance with Grant. See, e.g., Smith v. State, 50 So.3d 1214, 1215 (Fla. 4th DCA 2010) (observing that the defendant had been sentenced to “fifteen years and one day in prison as an HFO with a fifteen-year mandatory minimum as a PRR” in two of his cases). Based on the transcripts, we speculate that the trial court may have intended to follow the State’s recommendation but inadvertently stated the opposite.

Clark contends that the trial court may not now resentence him to a sentence including both an HFO sentence and a PRR minimum sentence, because the only legal scenario would require increasing the ineareerative portion of the HFO sentence. Clark argues that an increase in the incar-cerative portion of the HFO sentence would amount to a double jeopardy violation. According to Clark, the proper remedy is to strike the HFO portion of the sentence. He cites Ashley v. State, 850 So.2d 1265 (Fla.2003), and Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996), in support of this argument. We disagree for the reasons explained by the Fifth District in Allen v. State, 853 So.2d 533 (Fla. 5th DCA 2003):

A court may not increase a “legal” sentence once the defendant has begun to serve the sentence. See[,] e.g.[,] Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996) (once a legal sentence is imposed, jeopardy attaches and the defendant cannot be resentenced to a greater term of imprisonment), approved, Ashley v. State, 850 So.2d 1265 (Fla.2003). However, “[a] court may at any time correct an illegal sentence imposed by it.... ” Fla. R. Crim. [P.] 3.800(a)....
We distinguish Ashley ... in which the supreme court reversed an amended sentencing order imposing a mandatory minimum term, but in which the original sentence was valid. It does not offend double jeopardy principles to resentence a defendant to harsher terms when the original sentence was invalid, particularly when, as in the instant case, it is the defendant who brings his sentence into question.

Id. at 535-56 (third alteration in original) (emphasis added); see also Beech v. State, 436 So.2d 82, 83 (Fla.1983) (“[I]n correcting a voidable order of punishment for a criminal offense[,] a trial judge may impose a sentence of imprisonment no longer than the originally ordered combined period of incarceration and probation ... the sentences imposed in these cases did not deprive the petitioners of due process of law.” (emphasis added)); Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983) (same); Harris v. State, 645 So.2d 386, 388 (Fla.1994) (“[T]he Double Jeopardy Clause is not an absolute bar to the imposition of an increased sentence on remand from an authorized appellate review of an issue of law concerning the original sentence. Harris has not been deprived of any reasonable expectation of finality in his original sentence, nor has he been subject to repeated attempts to convict.”).

Thus, whether a trial court may resentence a defendant as both an HFO and a PRR by increasing the incarcerative portion of the HFO sentence depends on whether the sentence to be modified is a legal or an illegal sentence. If the original sentence was a legal sentence, a harsher sentence may not be imposed on resen-tencing. Wright v. State, 599 So.2d 179, 180 (Fla. 2d DCA 1992) (“The issue in this appeal is whether Wright’s first sentence was a legal sentence. If it was, double jeopardy prevents the trial court from imposing a harsher sentence at a subsequent hearing.”). But if the original sentence was an illegal sentence, at resentencing, the trial court may impose any sentence consistent with the sentencing laws in effect on the date of the offense, even if it results in a harsher sentence. Plute v. State, 835 So.2d 368, 369 (Fla. 2d DCA 2003) (“It is well established that a harsher sentence may be imposed on resentencing in such a context without violating double jeopardy.”); see also Peterson v. State, 974 So.2d 1082, 1084 (Fla. 2d DCA 2007) (same).

Other Florida district courts have reached the same conclusion. See James v. State, 845 So.2d 238, 240-41 (Fla. 1st DCA 2003):

We ... conclude that a trial court is not barred from accomplishing its original sentencing goals where a defendant successfully seeks to have a sentence overturned. This is true because there is no legitimate expectation of finality in a sentence a defendant seeks to overturn.
... The double jeopardy clause does not automatically preclude the imposition of any legal sentence after a successful appeal, irrespective of whether the new sentence is greater than the original.

(emphasis added) (footnote omitted) (citation omitted); Price v. State, 838 So.2d 587, 588 (Fla. 3d DCA 2003) (“[0]n resen-tencing the trial court may instead choose to impose a statutorily prescribed harsher sentence, if it so chooses.”); State v. Swider, 799 So.2d 388, 391 (Fla. 4th DCA 2001) (“A trial court may vacate an illegal sentence and impose a harsher sentence without violating the defendant’s double jeopardy rights.”); Palmer v. State, 182 So.2d 625, 626 (Fla. 4th DCA 1966) (“Where a sentence still being served by a defendant is vacated on his motion, he cannot complain if he is later sentenced to punishment harsher than that originally imposed.”).

In this case, Clark has never had the benefit of a legal sentence. Therefore, on remand, the trial court may again resen-tence him as both an HFO and a PRR, even if the resulting sentence is harsher than that originally imposed, without violating double jeopardy principles.

IV. CONCLUSION

For the foregoing reasons, we reverse Clark’s sentence and remand for a new sentencing hearing in accordance with this opinion. Clark must be present for resen-tencing. If the trial court again imposes a split HFO sentence, the incarcerative portion of the HFO sentence must exceed the PRR mandatory minimum sentence. See Johnson, 927 So.2d at 252 (“We reiterate, section 775.082(9)(e) provides that ‘[n]oth-ing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law ....’” (alterations in original)).

We recognize that an increase in the incarcerative portion of Clark’s HFO sentence would not be what Clark bargained for when he entered his negotiated guilty plea. Accordingly, on remand, Clark must be given an opportunity to withdraw his plea. If he elects to do so, the State may try Clark on the original charge. See For-bert, 437 So.2d at 1081.

Reversed and remanded.

WHATLEY and CRENSHAW, JJ., Concur.

      . A true split sentence "consistís] of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion.” Poore v. State, 531 So.2d 161, 164 (Fla.1988).

      . We observe that certain language appearing in this court’s opinion in Pate v. State, 908 So.2d 613 (Fla. 2d DCA 2005), may be read to imply the opposite conclusion. But Pate involved the resentencing of a defendant after the trial court reduced his sentence and ordered his release from prison. This was a clear violation of double jeopardy and is distinguishable from the facts in this case. "Once a sentence has already been seived, even if it is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence.” Maybin v. State, 884 So.2d 1174, 1175 (Fla. 2d DCA 2004) (emphasis added) (citing Sneed v. State, 749 So.2d 545 (Fla. 4th DCA 2000)).


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    Aaron DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4951.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Aaron Daniels challenges his judgment and sentence for second-degree murder. Daniels argues the trial court committed fundamental, reversible error pursuant to State v. Montgomery, 89 So.3d 252 (Fla.2010), in giving the 2008 manslaughter by act jury instruction. Because we conclude that the manslaughter by act instruction given in Daniels’ case does not include an erroneous intent-to-kill element, we affirm his judgment and sentence.

I. Background

On May 4, 2007, after an altercation with one person at a residence, Daniels left, went to his home to retrieve his hand gun, and returned to the residence. Daniels fired one shot with the intent of hitting the man involved in the previous altercation. However, the shot hit a female bystander in the head, and she died. Daniels was charged with one count of first-degree murder.

During taped interviews with officers, Daniels stated that prior to firing the shot, he saw the victim but was being approached by a group of men, including the man with whom he had previously fought. Daniels assumed the men had guns because he had a gun. Daniels fired the gun once and ran. He stated that he did not aim at the victim and that although he “probably” meant to hit one of the men, he did not mean to kill anyone.

Daniels proceeded to a jury trial on September 15 and 16, 2009. The trial court instructed the jury on the charge of first-degree murder and on the lesser-included charges of second-degree murder and manslaughter by act. The manslaughter by culpable negligence instruction was neither requested nor given.

As to the manslaughter by act lesser-included offense, the jury was told:

Before you can find the defendant guilty of manslaughter, the State must prove the following two elements beyond a reasonable doubt:
ELEMENTS
1. [The victim] is dead.
2. Aaron Treves Daniels intentionally caused the death of [the victim].
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.
In order to convict of manslaughter by intentional act, it is not necessary for the state to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.

(Emphasis added.)

During closing arguments, Daniels’ counsel discussed the facts of the case. He argued that there was no premeditation and that Daniels lacked the malice required for second-degree murder. He then argued the applicability of manslaughter:

Manslaughter, going down to the third rung of the ladder if you will. Manslaughter is distinguishable from first and second because the State doesn’t even have to prove that my client intended to kill anyone. All they have— and they don’t have to prove malice. They don’t have to prove premeditation. They didn’t have to prove conscious intent to kill. They don’t have to do any of that. What they have to prove is that he intended to do the act which caused the death of [the victim]; i.e., the pulling of the trigger on this firearm.
If he intended to pull that trigger and that shot [ ] killed [the victim], and the State has proven that to your satisfaction beyond a reasonable doubt, then there is a case for manslaughter. Restated, they just have to prove that the shot wasn’t fired accidently, that it was fired intentionally.

The jury found Daniels guilty of second-degree murder, and he was sentenced to life in prison with a minimum-mandatory term of twenty-five years.

II. Waiver or invited error

To the extent the State contends that any claim of error has been waived by virtue of defense counsel specifically addressing how manslaughter by act might apply to the facts of Daniels’ case, we disagree. It is true that “where defense counsel agrees to a standard jury instruction and then challenges the conviction based upon fundamental error in that instruction,” reversing the conviction may “have the unintended consequence of encouraging defense counsel to ‘stand mute and, if necessary, agree to an erroneous instruction[.]’ ” Joyner v. State, 41 So.3d 306, 307 (Fla. 1st DCA 2010) (quoting Calloway v. State, 37 So.3d 891, 897 (Fla. 1st DCA 2010)). However, we do not believe that counsel’s acquiescence, silence, or argument in favor of the challenged instruction here constitutes waiver or invited error. See also Curry v. State, 64 So.3d 152 (Fla. 2d DCA 2011) (concluding that issue of fundamental error in instruction was not waived by counsel’s acquiescence to the giving of one manslaughter instruction and advice against the giving of the other). Counsel’s argument did, nonetheless, explain the specifics of the manslaughter by act instruction and would certainly have been relevant in any discussion of harmless error.

III. The 2008 manslaughter by act instruction

It is undisputed that manslaughter by act does not require proof of intent to kill the victim. Montgomery, 39 So.3d at 255. Thus, the issue in Daniels’ case is whether the 2008 manslaughter by act instruction — as given to the jury in his case — required proof of intent to kill. Although Daniels argues that under Montgomery, the giving of the jury instruction on manslaughter by act required proof of intent to kill and thus constituted fundamental, reversible error, Daniels fails to recognize that the jury instruction given in his case was not the same instruction at issue in Montgomery. The State also fails to address this critical difference.

The instruction in Montgomery provided:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. [The victim] is dead.
2. a. [The defendant] intentionally caused the death of [the victim].
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

39 So.3d at 256 (citing Fla. Std. Jury Instr. (Crim.) 7.7 (2006)).

In 2008, prior to the supreme court’s opinion in Montgomery, but after Montgomery’s trial, the court adopted an amendment to the standard jury instruction on manslaughter by act. In re Std. Jury Instrs. in Crim. Cases-Report No. 2007-10, 997 So.2d 408 (Fla.2008). The amendment changed the wording of the last paragraph of the instruction, adding the clarifying phrase “only an intent to commit an act which caused death.” The amendment took effect December 11, 2008, and was not again amended until April 8, 2010, making it the applicable instruction for Daniels’ trial. See In re Amends, to Std. Jury Instrs. in Crim. Cases-Instr. 7.7, 41 So.3d 853 (Fla.2010).

Because the instruction in Daniels’ case is distinct from the instruction in Montgomery, Montgomery is not controlling. However, this court must still examine the issue raised by Daniels. Using the framework provided by the supreme court in Montgomery, this court must determine whether the instruction for manslaughter by act given at Daniels’ trial — the 2008 amended instruction approved by the supreme court — required proof of intent to kill in the same way that the prior instruction did. If the instruction did not require proof of intent to kill, this court need not reach the question of whether fundamental error occurred. However, if the instruction did require the intent to kill, the instruction must be considered under the fundamental error analysis.

The First and Third Districts have already addressed the issue presented by Daniels. And although this court has recently stated that an instruction similar to the 2008 standard manslaughter by act instruction “focuse[d] on an intent to commit an act that caused death” rather than requiring an intent to kill, we did not reach the ultimate issue of “whether the instruction was erroneous, fundamental or otherwise.” McNeal v. State, 67 So.3d 407, 409 (Fla. 2d DCA 2011) (holding that any error in the manslaughter instruction given in McNeal’s case was harmless where manslaughter was two steps removed from McNeal’s first-degree murder conviction). We now hold that the 2008 amended instruction did not erroneously require proof of intent to kill. Any error in the prior instruction was cured by the addition of language clarifying that the requisite intent was that necessary to commit an act. The 2008 amended instruction is materially different from the instruction at issue in Montgomery, and Daniels was not deprived of an accurate manslaughter instruction.

In Montgomery, the supreme court concluded that the pre-2008 language that “it is not necessary for the State to prove that the defendant had a premeditated intent to cause death,” was insufficient to cure the problem with the second element of the instruction: that the State must prove that the defendant intentionally caused the death of the victim. 39 So.3d at 257. However, the Montgomery court stated that the 2008 amendment “added additional language to clarify that the requisite intent for manslaughter by act is the intent to commit an act that caused the death of the victim[.]” Id. The court went on to summarize that “the relevant intent is the intent to commit an act which caused death,” concluding that the amended language was sufficient to cure any defect resulting from the language of element two. Id.; see also Carter v. State, 53 So.3d 1248, 1249 n. 1 (Fla. 2d DCA 2011) (“The [manslaughter by act] instruction was modified by the supreme court in December 2008 and eliminates the element of ‘intent to cause death,’ replacing it with ‘an intent to commit an act which caused death.’ ” (citing In re Std. Jury Instrs., 997 So.2d at 403)).

The First District has addressed this issue directly and repeatedly found that the 2008 instruction was fundamentally erroneous, requiring reversal and remand for new trials to be held. See Noack v. State, 61 So.3d 1208 (Fla. 1st DCA 2011); Pryor v. State, 48 So.3d 159 (Fla. 1st DCA 2010); Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010). In so concluding, the court has found that the amended instruction “is not materially different from the instruction held to be fundamental error in [Montgomery ], because it, too, erroneously stated that intent to kill was an element of manslaughter.” Riesel, 48 So.3d at 886; see Pryor, 48 So.3d at 161 (“[T]he [2008] instruction retained the erroneous language that the state had to prove that the defendant ‘intentionally caused the death’ of the victim.” (citing In re Std. Jury Instrs., 997 So.2d at 404)). In Riesel, as here, the jury was not instructed on manslaughter by culpable negligence. Id.

The Third District has also addressed whether the 2008 amended jury instruction on manslaughter by act is fundamentally erroneous. See Moore v. State, 57 So.3d 240 (Fla. 3d DCA 2011). In Moore, the jury was instructed on both manslaughter by act and manslaughter by culpable negligence, as lesser-included offenses. Id. at 243. Although heavily relying on post-Montgomery case law distinguishing cases where both manslaughter instructions were given to affirm Moore’s conviction for second-degree murder, the Third District clearly concluded that the 2008 amended instruction “materially differs from the Montgomery instruction.” 57 So.3d at 244. The court based its affirmance on both that the instruction was not in error and that the manslaughter by culpable negligence instruction had been given. Id. (“Because the instruction given differs from the instruction given in Montgomery, and the jury was also instructed on manslaughter by culpable negligence, we find no fundamental error.”).

The Third District’s Moore decision cites Morgan v. State, 42 So.3d 862 (Fla. 4th DCA 2010), review granted, 53 So.3d 1021 (Fla.2011), for support. In Morgan, the Fourth District concluded that the instruction on attempted voluntary manslaughter “included language clarifying that a conviction for attempted manslaughter by act does not require proof of an intent to kill” and that the “instruction given by the trial court was thus consistent with the 2008 amendment to the standard jury instruction on manslaughter by intentional act.” 42 So.3d at 863 (citing In re Std. Jury Instrs., 997 So.2d at 403). In so holding, the court affirmed Morgan’s conviction for attempted second-degree murder. Id. Although this court has certified conflict with the Fourth District’s conclusion with regard to the attempted voluntary manslaughter instruction, Houston v. State, - So.3d -, -, 2011 WL 3518029 (Fla. 2d DCA 2011), we agree with the Fourth District’s implicit statement that the 2008 amended instruction cured the defect present in Montgomery.

Our conclusion is bolstered by the 2010 amendment to the manslaughter by act instruction. See In re Amends. to Std. Jury Instrs., 41 So.3d 853. In conjunction with its opinion in Montgomery, the supreme court issued the following 2010 amended instruction (new language is indicated by underlining; deleted language is struck through):

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. (Victim) is dead.
2. a. (Defendant’s) act(s) intentionally caused the death of (victim).
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had an premeditated intent to cause death, only an intent to commit an act that was not justified or excusable and which caused death.

In re Amends. to Std. Jury Instrs., 41 So.3d at 854-55.

Although the court eliminated reference to intentional acts or premeditated intent in the 2010 instruction, specifically deleting the word “intentionally” from element two, the clarifying phrase added in 2008 remains, with only additions to include justifiable or excusable homicide: “only an intent to commit an act ... which caused death.” We do not believe the 2010 amendment, in terms of how it defines the intent requirement for manslaughter by act, is materially different from the 2008 amendment such that it supports a finding that the 2008 amended instruction was fundamentally erroneous.

Because we conclude that the instruction given at Daniels’ trial did not require the jury to find that Daniels intended to kill the victim, Daniels was not deprived of an accurate manslaughter instruction and the trial court did not fundamentally err in giving the 2008 amended instruction. We certify that this decision conflicts with Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), and its progeny within the First District.

Affirmed; conflict certified.

KHOUZAM and MORRIS, JJ., Concur.


author: MORRIS, Judge.

text:
    Robert ORTIZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D09-2573, 2D09-3085, 2D09-3086, 2D09-3087, 2D09-3090, 2D09-3092.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Robert Ortiz, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Robert Ortiz appeals the revocation of his community control in six circuit court cases. Ortiz argues that because his original probationary term in case 99-551 had expired in August 2006, the trial court lacked jurisdiction to revoke his original probation in 2007 and place him on community control. This claim is not supported by the record because the record does not indicate when Ortiz began serving his probation or when his probation expired; thus, this issue requires an eviden-tiary hearing. See Gonzalez v. State, 705 So.2d 954, 955 (Fla. 1st DCA 1998). Therefore, we affirm without prejudice to any right Ortiz may have to raise this claim in a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See id. Feagin v. State, 938 So.2d 623, 624 (Fla. 2d DCA 2006) (holding that such a claim is cognizable under rule 3.850); Sepulveda v. State, 909 So.2d 568, 571 (Fla. 2d DCA 2005) (same).

We also note, on a related matter, that Ortiz’s original written sentence in case 99-551 indicates that he was sentenced to 48 months in prison followed by 72 months’ probation for the offense of burglary of an unoccupied structure, which is a third-degree felony. See § 810.02(4)(a), Fla. Stat. (1999). But a document labeled “circuit court sentence” indicates that Ortiz was sentenced on the burglary to serve 48 months in prison followed by only 12 months’ probation, and the order placing Ortiz on probation also indicates that his probationary term was only 12 months. Our affirmance is without prejudice to any right Ortiz may have to file a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), challenging his original sentence in 99-551 as illegal, either because the sentence of 48 months in prison followed by 72 months’ probation exceeds the statutory maximum for a third-degree felony, see § 775.082(3)(d), Fla. Stat. (1999), or because the written sentence does not comport with the oral pronouncement of sentence, see Williams v. State, 957 So.2d 600, 603 (Fla.2007).

Affirmed.

YILLANTI and KHOUZAM, JJ„ Concur.


author: WHATLEY, Judge.

text:
    James HEADRICK, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4492.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

James Headrick appeals his judgments and sentences for sexual battery on a child under twelve years of age and lewd or lascivious battery on a child between twelve and sixteen years of age. We affirm his judgments and sentences without discussion. However, it appears that, after granting Headrick’s second motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b), the trial court failed to enter an amended cost order. An amended order should be entered to reflect that the trial court struck the regional counsel fee of $200, the fine of $125.72, and the fine surcharge of $6.28. Accordingly, we remand for the limited purpose of the entry of an amended cost order. See Owens v. State, 1 So.3d 405 (Fla. 2d DCA 2009).

Judgments and sentences affirmed, and case remanded for entry of an amended cost order.

NORTHCUTT and WALLACE, JJ., Concur.


author: DAVIS, Judge.

text:
    Gregory A. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2563.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Gregory Taylor challenges the revocation of his probation and subsequent five-year sentence on the charge of carrying a concealed firearm. We affirm the revocation of his probation and the sentence based on the trial court’s determination that Taylor willfully and substantially violated his probation by failing to report to the probation office as required. The order of revocation also reflects that Taylor violated a second condition of probation by changing residences without notification. The trial court could not base this conclusion solely on the hearsay testimony presented at trial. See Thompson v. State, 890 So.2d 382, 383 (Fla. 2d DCA 2004). We therefore remand for the limited purpose of the entry of an amended order of revocation to reflect that the revocation is based only on the violation for failing to report.

Affirmed and remanded.

ALTENBERND and WALLACE, JJ., Concur.


author: PER CURIAM.

text:
    Corey LAKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4793.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 2011.
    Rehearing Denied Nov. 2, 2011.
    Corey Lake, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Corey Lake (Defendant) appeals an order summarily denying his “motion for credit for time served,” filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. We affirm.

In his motion, Defendant alleged it was his understanding, when he entered his negotiated plea, that he would receive credit not only for the time he served in the Broward County Jail before sentencing, but also for the time he was detained in the county jail in Passaic, New Jersey on federal charges based on the same incident, before the federal charges were dismissed; and for the time he spent in jail in Delaware County, New York, and in transit to Florida, after his arrest on the Florida warrant issued in connection with the instant charges, time which totaled almost 300 days. At the sentencing hearing, the trial court agreed to give him credit for time served, but no one clarified that the number of days which the clerk announced and which the trial court accepted represented only the days which Defendant had served in the Broward County jail.

However, rule 3.800(a) is not an appropriate vehicle with which to seek out-of-state jail credit, see Gomez v. State, 984 So.2d 577, 578-79 (Fla. 4th DCA 2008); Garnett v. State, 957 So.2d 32 (Fla. 2d DCA 2007) (en banc) (receding from cases such as Robbins v. State, 799 So.2d 1093 (Fla. 2d DCA 2001)); West v. State, 22 So.3d 797 (Fla. 1st DCA 2009); Sambolin v. State, 2 So.3d 1097 (Fla. 5th DCA 2009). Cf. Picariello v. State, 728 So.2d 1185 (Fla. 3d DCA 1999) (considering the issue after treating appellant’s rule 3.800(a) motion as if it had been filed pursuant to rule 3.850), and the time within which Defendant could have filed a timely rule 3.850 motion expired in December 2008, over a year before this instant motion was filed.

Affirmed.

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

      . In the motion, Defendant sought an additional 289 days of credit; in his initial brief, he corrected the number to 297.


text:
    Taron THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2643.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 2011.
    Carey Haughwout, Public Defender, and Tom Wm. Odom and Nauman Siddique, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Hamon v. State, 744 So.2d 1065 (Fla. 4th DCA 1999).

TAYLOR, HAZOURI and LEVINE, JJ., concur.


text:
    Deshawn J. BOLDEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4930.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2011.
    Deshawn J. Bolden, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Calvin JOSEPH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4850.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2011.
    Calvin Joseph, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Neal D. PALMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1358.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Neal D. Palmer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying defendant’s fourth motion for jail credit, rendered on or about August 23, 2010, in Wakulla County Circuit Court case numbers 06-0438 and 07-0104, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

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


text:
    Sylvester HICKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2687.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.

      Sylvester Hicks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Sylvester Hicks is hereby afforded belated appeal from judgment and sentence of the Circuit Court for Escambia County, Case No. 2010-CF-000619A. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

The trial court shall appoint counsel to represent appellant if he qualifies for such an appointment.

PETITION GRANTED.

THOMAS, WETHERELL, and SWANSON, JJ„ concur.


text:
    Rocky S. QUINN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2893.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Rocky S. Quinn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Rocky S. Quinn is hereby afforded a belated appeal from the order of the Circuit Court for Gulf County denying postconviction relief in case number 05-0043-CF. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. RApp. P. 9.141(c)(6)(D).

THOMAS, WETHERELL, and SWANSON, JJ., concur.


text:
    Jeffrey R. HIRSCHKORN, Appellant, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. 1D11-3428.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Jeffrey Hirschkorn, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005) (dismissing appeal from interlocutory order that granted indigency status and imposed a lien); see also Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005) (granting relief from indigency order, which imposed a lien for appellate filing fees, by motion filed in the appeal from the final order). This dismissal is without prejudice to the appellant’s right to seek relief in the circuit court. Mathews v. Risk Management, 16 So.3d 230 (Fla. 1st DCA 2009); Lopez v. McDonough, 935 So.2d 47, 49 (Fla. 1st DCA 2006); Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005).

WOLF, LEWIS, and RAY, JJ., concur.


text:
    John GRAHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4744.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    John Graham, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed as untimely. See Fla. R.App. P. 9.141(d)(5).

THOMAS, WETHERELL, and SWANSON, JJ., concur.


author: VILLANTI, Judge.

text:
    David ROLON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4809.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2011.

      James Marion Moorman, Public Defender, and Joseph M. Bernstein, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

After a jury convicted David Rolon of second-degree murder with a firearm, the trial court sua sponte granted him a new trial based on the ineffective assistance of his original trial counsel. Despite its explicit finding that trial counsel provided ineffective assistance during the direct and cross-examination of Rolon at his first trial, the trial court nevertheless allowed the State to use Rolon’s testimony from his first trial during its case-in-chief in the second trial. In these highly unusual circumstances, we conclude that the admission during the second trial of Rolon’s testimony from his first trial violated Ro-lon’s Sixth Amendment right to the effective assistance of counsel. Therefore, we reverse and remand for a third trial.

Rolon was charged with one count of second-degree murder after a dispute with his neighbor ended up with the neighbor shot dead on his own doorstep. At the first trial, Rolon’s defense was that he did not have a gun, that a gun possessed by either the victim or the victim’s friend went off during a struggle between Rolon and the victim, and that the victim’s girlfriend had pinned the shooting on Rolon to protect her boyfriend and/or his friend.

Before the State called its final witness at the first trial, the trial court held a brief colloquy with Rolon concerning his right to testify. The court explained to Rolon that if he testified, the jury would be permitted to know whether he had been convicted of a felony and, if so, how many times. If he answered truthfully, the jury would never know the nature of the convictions. However, if he did not answer truthfully, the jury would learn the nature of the convictions. The court told Rolon that the decision to testify was entirely his but that he should discuss it with his lawyer. Rolon stated that he had no questions about his right to testify and that he understood his rights. The court did not question Rolon concerning whether he had, in fact, discussed the issue with his attorney, nor did it ask whether Rolon intended to testify.

The next morning, the State called its final witness and then rested. The trial court went directly into the defense case, and Rolon called his sister to testify. She testified that she saw another individual on the porch of the victim’s house before the shooting. However, she also testified that Rolon told her that he had “turned the gun around on the other guy.”

The defense then called Rolon to the stand. The trial court did not conduct any further colloquy with Rolon prior to him taking the stand. During his testimony, Rolon testified that he and the victim got into a confrontation, that the victim reached for something in his pocket, that Rolon struggled with the victim over the item, and then “[s]omething just went pow on this side of my face right here.” Rolon testified that he did not know where the shot came from and thought that possibly it was meant for him. Rolon admitted that he ran away, hid from the police, and dyed his hair after the shooting.

Despite Rolon’s testimony concerning his struggle with the victim and Rolon’s sister’s testimony concerning him turning the gun on the victim, defense counsel waived the jury instruction concerning the justifiable use of deadly force. In closing, defense counsel argued that there were several “reasonable” scenarios other than the one presented by the State that would explain the events that had occurred and thus the State had not proved its case beyond a reasonable doubt. Nevertheless, the jury returned a verdict of guilty.

Within the time for granting a motion for new trial, the trial court set a status hearing and sua sponte found that Rolon’s counsel had been ineffective at the first trial. Concerning Rolon’s testimony, the trial court specifically found that defense counsel’s direct examination of Rolon was ineffective as a matter of law. The court noted that defense counsel elicited testimony that he had discussed the case with Rolon for less than five minutes. In addition, the court found that “[t]he unprepared Defendant obviously did not know what questions his counsel would ask him, and he made unsolicited prejudicial statements during direct and cross examination.” Concluding that Rolon “did not receive a fair and impartial trial” due to defense counsel’s ineffectiveness, the trial court granted Rolon a new trial. The State elected not to appeal this ruling even though it had the authority to do so. See Fla. R.App. P. 9.140(c)(1)(C) (permitting the State to appeal orders granting a new trial).

Prior to the start of Rolon’s second trial, he moved in limine to prevent the State from using his testimony from the first trial during its case-in-chief in the second trial. Rolon conceded that section 90.804(2)(a), Florida Statutes (2008), would generally permit the State to introduce his former testimony at his second trial. However, he argued that the use of his former testimony under these circumstances would infect the second trial with the same ineffectiveness that had tainted the first trial and would result in the denial of his Sixth Amendment right to counsel. After a hearing, the trial court denied the pretrial motion, finding that Rolon had voluntarily testified at his first trial. The court’s order did not directly address Ro-lon’s argument concerning the ineffectiveness of his prior counsel.

Immediately before the State sought to read the transcript of Rolon’s former testimony during the second trial, defense counsel again objected to the State’s use of that testimony. At that point, the trial court permitted defense counsel to call Rolon to testify concerning his preparation with his prior attorney. Rolon testified that he had spoken with his prior attorney for only about five' minutes about the case before he was called to testify. The remainder of the time was spent with the attorney asking him for money. Rolon testified that he never discussed the pros and cons of testifying with his attorney. Rather, his attorney “just waited until the trial came, the trial started, and he put me on the stand.” At first, Rolon said that he did not recall the judge asking him whether he understood that the right to testify was his alone and that only he could make the decision whether to testify, but he later changed his mind and said that he did recall that question but that he didn’t really understand what that meant. He also said that if he had fully understood his rights concerning testifying, he would not necessarily have done anything differently. Instead, he “would have had to take the time to decide that.” Based on this testimony, the trial court reaffirmed its pretrial ruling and permitted the State to read Rolon’s testimony from his first trial during its case-in-chief in the second trial. Rolon was again convicted.

In this appeal, Rolon contends that the trial court abused its discretion by permitting the State to introduce his testimony from the first trial during its case-in-chief in the second trial under these unique circumstances. Rolon admits that the rules of evidence generally permit the introduction of testimony from a prior trial. However, he argues that in this situation, when the new trial was granted based on ineffective assistance of counsel that affected the defendant’s trial testimony and when the State chose not to appeal the order granting the new trial, the use of the “tainted” testimony in the second trial violates both the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel and thus constitutes an abuse of discretion. We find no Fifth Amendment violation on the facts here; however, we agree that the court’s ruling resulted in a violation of Rolon’s Sixth Amendment right to counsel.

Fifth Amendment

Rolon contends that the introduction of his testimony from the first trial during the second trial violated his Fifth Amendment right against self-incrimination because his decision to testify at the first trial was solely the product of his counsel’s ineffectiveness. On the facts here, we disagree.

“[T]he general evidentiary rule [is] that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings.” Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). However, there is no question that the Fifth Amendment is implicated when the State seeks to introduce a defendant’s prior trial testimony during a retrial. See Barnes v. State, 970 So.2d 332, 339 (Fla.2007). The question of whether the Fifth Amendment bars the use of the defendant’s testimony from the first trial during the second trial focuses on whether the defendant’s testimony at the first trial was voluntary and whether its introduction at the second trial would mislead the jury or confuse issues. See State v. Mosley, 760 So.2d 1129, 1131 (Fla. 5th DCA 2000). Unless the defendant’s prior testimony was involuntary or compelled in a constitutional sense, the use of that testimony in a subsequent trial does not violate the defendant’s Fifth Amendment rights.

When a defendant raises a Fifth Amendment issue concerning the use of his prior testimony in the context of a claim of ineffective assistance of counsel, the essence of that claim is usually that the action or inaction of his attorney deprived him of his ability to intelligently choose whether to exercise or waive his Fifth Amendment right to testify in his own defense. See, e.g., Beasley v. State, 18 So.3d 473, 495 (Fla.2009). However, as with all other claims of ineffective assistance of counsel, the defendant must demonstrate prejudice, i.e., that he would have made a different decision about testifying had counsel properly discussed and advised him of his rights. See Lott v. State, 931 So.2d 807, 817 (Fla.2006); Oisorio v. State, 676 So.2d 1363, 1364-65 (Fla.1996) (rejecting an argument that a defendant alleging that counsel interfered with his or her right to testify must prove only deficient performance and holding that “to obtain postconviction relief, a defendant claiming his or her right to testify was violated must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense”).

In Beasley, the supreme court rejected Beasley’s claim of ineffective assistance of counsel resulting in his failure to testify at trial because Beasley did not say “that he would have testified during the trial if counsel had spent more time preparing him.” Beasley, 18 So.3d at 496. Similarly, in this case, Rolon did not testify that he would have elected not to testify had defense counsel more thoroughly prepared him. Instead, Rolon specifically testified that he might have made the same decision even if counsel had more fully explained the pros and cons of testifying. Given this testimony, Rolon cannot establish the prejudice necessary to show that counsel’s ineffectiveness interfered with his Fifth Amendment right to such an extent that the use of that prior testimony should have been precluded.

Moreover the record supports the trial court’s conclusion that Rolon’s decision to testify on his own behalf at his first trial was not involuntary in a constitutional sense. The record shows that Rolon was fully informed of the pros and cons of testifying before he took the stand. The trial court conducted its own colloquy with Rolon and explained to him what the jurors would and would not learn about him if he chose to testify. The trial court also explained that the jurors would be told that they could not use a decision not to testify against Rolon. This colloquy occurred at the end of the trial day, so Rolon also had the evening to think about his decision and to discuss it further with his counsel. The following day, Rolon took the stand in his own defense, and there is no evidence that he did so involuntarily or under duress. Instead, it appears from the record that Rolon voluntarily took the stand to explain his version of the events that occurred and to contradict the events as related by the victim’s girlfriend. Thus, there is simply no evidence in the record that Rolon’s decision to testify at his first trial was involuntary, and therefore the admission of Rolon’s testimony from that trial during his second trial did not violate his Fifth Amendment privilege against self-incrimination. Hence, we do not reverse Rolon’s conviction on Fifth Amendment grounds.

Sixth Amendment

Alternatively, Rolon contends that the introduction of his testimony from the first trial during the second trial violated his Sixth Amendment right to counsel because the substance of his testimony at the first trial was tainted by his counsel’s ineffectiveness. On this basis, we agree.

The parties do not cite, nor have we been able to find, any Florida authority that deals with this exact issue. However, authority from other jurisdictions explains the nature of the error in this case. For example, in People v. Mora, 120 Cal.App.2d 896, 262 P.2d 594 (1953), disapproved on other grounds, People v. Van Eyk, 56 Cal.2d 471, 15 Cal.Rptr. 150, 364 P.2d 326 (1961), the defendant testified at a preliminary hearing without the benefit of counsel. The charges against him were initially dropped but subsequently refiled. In the trial on the refiled charges, the State sought to use Mora’s uncounseled testimony from the earlier preliminary hearing. The trial court permitted the State to do so, and Mora was convicted. On appeal, the court reversed, holding that the State’s use of Mora’s earlier testimony was a violation of his Sixth Amendment rights and explaining:

To permit such statements to be introduced would do violence to all the rules of fair play. To condone such a practice could render futile the right to the aid of counsel so carefully preserved by our Constitutions, our statutes and our decisions. It would open the gate to unlawful preliminary hearings at which damaging statements would be elicited; to be followed by properly conducted proceedings leading to trial whereat the statements so obtained could be used for conviction. The United States Supreme Court has held in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 [ (1952) ], 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396, that the wrong in unlawfully obtaining evidence may be so great that its use thereafter would amount to a denial of due process. Denying the right to counsel in criminal proceedings is the denial of due process. People v. Zammora, 66 Cal.App.2d 166, 234, 152 P.2d 180 [ (1944) ]. Giving to the adjudication that appellant’s right to counsel was denied! ] the weight to which it is entitled!,] we think the trial court erred in admitting the statements made by !the] accused at the first preliminary. To admit evidence so obtained into the subsequent trial was to carry into that trial the same denial of due process which the court had already adjudicated had occurred at the preliminary.

Id. at 596 (emphasis added). Thus, the court reversed and remanded for a new trial at which the uncounseled testimony would be inadmissible during the State’s case-in-chief.

While Mora dealt with the complete denial of counsel, a similar result was reached in a case involving ineffective assistance of counsel. In United States v. Murray, 52 M.J. 671 (N.M.Ct.Crim.App.2000), the military defendant was convicted at his first court martial where he was represented by civilian retained counsel. On appeal, the court reversed, finding that the defendant “was prejudiced by his counsel’s ineffective assistance.” Id. at 672. This finding was premised in part on counsel’s failure to adopt a sound theory of defense, which only exacerbated problems with the defendant’s testimony. On remand, despite the appellate court’s finding of ineffective assistance of counsel, the government sought to use the defendant’s testimony from his first court martial during the new proceedings, and the trial court agreed. On appeal from the new conviction, however, the appellate court again reversed. In doing so, the court stated:

Additionally, although there was no illegally obtained evidence introduced by the Government which precipitated the appellant’s testimony, that testimony was the direct result of the denial of the appellant’s Sixth Amendment right to the effective assistance of counsel. Allowing the Government to use that testimony on the merits!J brought the taint of the constitutional error of the first trial into the second trial. In Harrison, the Supreme Court found that “[t]he exclusion of an illegally procured confession and of any testimony obtained in its wake deprive[d] the Government of nothing to which it ha[d] any lawful claim and create[d] no impediment to legitimate methods of investigating and prosecuting crime [and] ... no more than restore[d] the situation that would have prevailed if the Government had itself obeyed the law.” Harrison [v. United States], 392 U.S. 219] at 224, 88 S.Ct. 2008, 20 L.Ed.2d 1047 [ (1968) ]. We find that the exclusion of testimony obtained in the wake of the denial of an individual’s Sixth Amendment right to the effective assistance of counsel deprives the Government of nothing to which it has any lawful claim and creates no impediment to legitimate methods of investigating and prosecuting crime, and no more than restores the situation that would have prevailed if the appellant had not been so denied.

Id. at 675-76 (emphasis added). Thus, again, the court reversed and remanded for a new court martial.

The import of these two cases is that a defendant’s testimony given in violation of his Sixth Amendment right to counsel may not generally be used against him in a subsequent proceeding. This is true whether the Sixth Amendment violation springs from a complete lack of counsel or from ineffective assistance of counsel. However, this rule applies only when counsel’s ineffectiveness directly affects the defendant’s testimony and thereby taints the entire trial. Compare People v. Duncan, 173 Ill.App.3d 554, 123 Ill.Dec. 422, 527 N.E.2d 1060, 1062 (1988) (finding that the defendant had received ineffective assistance of counsel at his first trial that had “colored the entire proceeding” such that his testimony from that trial, while admissible as impeachment, could not be used against him during the State’s case-in-chief in the new trial), with United States v. Nell, 570 F.2d 1251, 1260 (5th Cir.1978) (holding that defendant’s testimony from his first trial could be used by the government in its case-in-chief on remand because the only ineffectiveness of counsel was during jury selection and there was no evidence that the ineffectiveness “tainted the entire trial”).

In Rolon’s case, as in Murray, Ro-lon was deprived of his Sixth Amendment right to the effective assistance of counsel during his direct and cross-examination in his first trial. The trial court in this case specifically found that counsel was ineffective in failing to prepare Rolon to testify and in eliciting damaging testimony from him, and it included this specific finding in its order granting Rolon a new trial, which the State elected not to appeal. In light of this clear finding of ineffectiveness relating specifically to Rolon’s testimony, the trial court’s subsequent order allowing the State to introduce his testimony from the first trial during its case-in-chief in the second trial brought the taint of that Sixth Amendment violation, and its concomitant due process violation, from the first trial directly into the second trial. Further, as is evident from the trial court’s order granting the new trial, trial counsel’s ineffectiveness pervaded and tainted the entire first trial. To remedy this Sixth Amendment violation, Rolon is entitled to a new trial at which the State may not use his testimony from the first trial during its case-in-chief.

Reversed and remanded for a new trial.

LaROSE and MORRIS, JJ., Concur.

      . Appellate counsel did not represent Rolon during either of his trials.


text:
    STATE of Florida, Appellant, v. David Keith THOMPSON, Appellee.
    No. 2D09-3019.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellee.
   DAVIS, Judge.

The State challenges the trial court’s order granting David Keith Thompson’s motion to suppress evidence at his trial on two counts of obtaining drugs from a physician by withholding information. We reverse.

Law enforcement first became aware of Thompson when they discovered a pharmacy receipt with Thompson’s name on it while searching a vehicle in an unrelated case. Police then obtained Thompson’s pharmacy records from two local pharmacies and discovered that he was receiving prescriptions for the same drugs from two different doctors. He was charged with two counts of obtaining drugs from a physician by withholding information.

Thompson moved to suppress

any and all evidence found as a result of law enforcement’s unlawful search and seizure of [his] personal and confidential medical records from his medical physicians, specifically a list of [his] prescribed medications from November 2008 to January 2009 obtained from Promise Pharmacy, Bay Area Pharmacy, ... Dr. Langee, and Dr. Nasim which were unlawfully obtained and seized in violation of [his] right to privacy-

In his motion to suppress, Thompson also alleged that the information provided by the pharmacies included a list of controlled substances obtained by him, with the dates on which they were procured and the amounts received. However, Thompson also alleged that the dates in November 2008 on which he obtained drugs directly from Dr. Langee’s office were provided to law enforcement solely by Dr. Langee’s office manager.

Thompson argued below that this search violated his rights under the federal Health Insurance Portability and Accountability Act (HIPAA) and sections 456.057(7) and 395.3025(4)(d), Florida Statutes (2008).

In granting Thompson’s motion to suppress, the trial court entered a written order that made no factual findings or conclusions of law. However, at the suppression hearing, the trial court did express its belief that pharmacy records “come[] under” section 456.057(7). But the court did not make any specific findings regarding the information police obtained directly from Dr. Langee’s office.

With regard to the information obtained by law enforcement from the pharmacies, this court already has determined that law enforcement does not violate either section 456.057(7) or section 395.3025(4)(d) by obtaining a person’s pharmaceutical records without a subpoena, a search warrant, or the consent of the individual. See State v. Tamulonis, 39 So.3d 524, 527 (Fla. 2d DCA 2010) (noting that “section 456.057 regulates health care praetitioners[ ] and [that] pharmacists and pharmacies are expressly excluded from the definition of ‘health care practitioner’ ” and stating that section 395.3025 “applies to ‘licensed facilities],’ ” a phrase which does not include pharmacies in its statutory definition (last alteration in the original)), review denied, 52 So.3d 662 (Fla.2011).

Additionally, we agree with the State that the instant search of Thompson’s pharmacy records does not violate the HI-PAA statute. HIPAA, by its own language, exempts disclosure of individually identifiable medical information “for law enforcement purposes ... [p]ursuant to process and as otherwise required by law.” 45 C.F.R. § 164.512(f)(1) (emphasis added). With regard to pharmaceutical records,

[s]ection 893.07[, Florida Statutes,] requires pharmacists to maintain controlled substance records, including prescription records, and to make the records “available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.” § 893.07(4).

Tamulonis, 39 So.3d at 527.

In Tamulonis, this court adopted the First District’s conclusion in State v. Carter, 23 So.3d 798, 800 (Fla. 1st DCA 2009), that section 893.07 “ ‘does not require a subpoena, warrant, or prior notice to the patient.’ ” 39 So.2d at 527. Because section 893.07 requires a pharmacy to make its controlled substance records available to law enforcement officers enforcing controlled substance laws without need for a subpoena, warrant, or prior notice of the patient, disclosure of these records by pharmacists and pharmacies to law enforcement does not implicate HIPAA.

Because the search here of Thompson’s pharmacy records did not violate HIPAA or sections 456.057(7) and 395.3025(4)(d), we reverse the portion of the trial court’s order suppressing the evidence obtained from the pharmacies.

We turn now to the information obtained by law enforcement from Dr. Langee’s office. This information, which consisted of the dates on which Thompson obtained certain drugs from Dr. Langee, may have been properly suppressed under section 456.057(6), (7)(a)(3). When read together, these subsections provide that “reports and records relating to ... examination or treatment [of a patient], including x-rays and insurance information” “may not be furnished to ... any person other than the patient or the patient’s legal representative ... except upon written authorization of the patient [or] in any ... criminal action ... upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient.” Id. Furthermore, if disclosure of this information is not required by the Florida Statutes, the information may not be exempt from HI-PAA.

As such, on remand the trial court shall reconsider the suppression of the physician information and make specific findings as to whether any of that information amounts to “reports and records relating to [the] ... examination and treatment” of Thompson and whether disclosure of the information is prohibited by HIPAA. See State v. Shukitis, 60 So.3d 406, 409 (Fla. 2d DCA 2010); cf. Mullis v. State, — So.3d -, 2011 WL 3962910 (Fla. 2d DCA 2011) (reversing as to trial court’s factual findings that certain physician’s records did not amount to treatment records under section 456.057).

Finally, we note that Thompson argues on appeal that because the State failed to stipulate to any facts or present any evidence below, it has not met its burden of proving the legality of the instant warrant-less search. See Palmer v. State, 753 So.2d 679, 680 (Fla. 2d DCA 2000) (“[0]nce the defendant establishes that the search was conducted without a warrant, the burden shifts to the State to produce clear and convincing evidence that the warrantless search was legal.”). Thompson maintains that because at the suppression hearing, the State failed to present any evidence or stipulate to the facts alleged in the motion to suppress, the State cannot now complain that the trial court denied the motion as there was no clear and convincing, evidence upon which it could grant the motion. We conclude, however, that this argument is without merit because our review of the record suggests that the transcript can be read to indicate that the prosecutor did indeed stipulate to the facts presented in Thompson’s motion to suppress.

Reversed and remanded.

ALTENBERND and WALLACE, JJ., Concur.

      . At one point, the trial judge said, "I think if you’re going to appeal, there needs to be some type of stipulation or agreement as to the facts so — ." Although the court continued that sentence, it was at that point that the prosecutor interrupted and stated, "I can do that.”


author: TAYLOR, J.

text:
    Ralph DeLUISE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4721.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The defendant, Ralph DeLuise, appeals his convictions for racketeering, conspiracy to commit racketeering, communications fraud, committing a loan broker violation, two counts of grand theft, and one count of money laundering. We reverse the defendant’s conviction for grand theft on Count 13 because it violates double jeopardy, but we affirm all other convictions. Also, we reverse and remand for re-sentencing, because the trial court violated the defendant’s equal protection rights at sentencing by proposing to consider a reduction in his prison sentence if the defendant paid at least $100,000 in restitution within sixty days of the sentencing hearing.

By way of background, the charges in this case arose from the defendant’s participation in a criminal enterprise that defrauded victims who were seeking funding for their business plans. The operative information alleged that the illegal acts were committed against the following businesses: 1) Learical Films; 2) Galaxy Golf; 3) Zeros, Inc.; 4) United Noetic; and 5) ArcAngel/Red Cloak. The State’s theory was that the defendant and Phil Wilson (now deceased), along with several other co-conspirators, took substantial sums from the victims and promised to obtain funding for their businesses. The defendant’s role was to refer clients and generate the documents that were used in the fraudulent scheme. In addition, the defendant would often misrepresent his credentials and pose as a “facilitator” who could get the clients access to investment bankers and “world class” banks through his connections to Wall Street. The victims never received any loans or financing as promised, nor were they repaid.

Apart from the substantial testimony regarding the charged crimes, the State also offered Williams rule evidence at trial. The Williams rule evidence pertained to four victims. Three victims were businesses seeking financing for projects, but the fourth victim was Debra Wenger, the defendant’s former secretary, who gave the defendant $20,000 for investment purposes. Wenger testified that the defendant, who held himself out as a stockbroker, told her that the money would be placed in an “escrow” account and that the funds would be used for an investment in a stock.

Following a lengthy trial, the jury found the defendant guilty as charged as to: Count 1, racketeering; Count 2, conspiracy to commit racketeering; Count 3, communications fraud (Learical); Count 8, loan broker violation (Learical); Count 13, grand theft (Learical); Count 15, grand theft (Galaxy Golf); Count 19, money laundering. The defendant was sentenced to fifteen years in prison, followed by ten years of probation for Counts 1, 2, 13, 15, and 19. He also received a concurrent sentence of 10.5 years in prison for counts 3 and 8. Finally, he was ordered to pay restitution of $1,167,500.

On appeal, the defendant raises twelve issues. On most issues, we affirm without further discussion, as the defendant has demonstrated no abuse of discretion or reversible error. We write, however, to address three issues: 1) whether the trial court abused its discretion in admitting the Williams rule evidence; 2) whether the defendant’s conviction for grand theft in Count 13 violated double jeopardy; and 3) whether the trial court committed fundamental error in sentencing by offering to reduce the defendant’s sentence if he paid at least $100,000 in restitution within sixty-days.

As to the Williams rule issue, “the standard of review applicable to the consideration of whether evidence was properly admitted is abuse of discretion.” Stav v. State, 860 So.2d 478, 480 (Fla. 4th DCA 2003). Similar-fact evidence, or Williams rule evidence, is “admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” § 90.404(2)(a), Fla. Stat.; see also Williams v. State, 110 So.2d 654 (Fla.1959). “In determining the admissibility of collateral crime evidence, the trial court must make two determinations: (1) whether the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed by any prejudice.” Audano v. State, 641 So.2d 1356, 1359 (Fla. 2d DCA 1994) (citing §§ 90.402, 90.403 and 90.404(2), Fla. Stat.).

To the extent that the defendant specifically challenges the adequacy of the lower court’s pre-trial hearing on the Williams rule evidence, we find that the issue was not preserved for appellate review. See, e.g., Archer v. State, 613 So.2d 446, 448 (Fla.1993) (explaining that in order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation). However, to the extent that the defendant generally challenges the admissibility of the Williams rule evidence, we find that the issue was adequately preserved. See § 90.104(1), Fla. Stat. (2007) (“If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”).

On the merits of whether the Williams rule evidence should have been admitted, there was sufficient evidence that the defendant committed the prior crimes, the prior crimes met the similarity requirements necessary to be relevant, the prior crimes were not remote in time, and the prejudicial effect of the prior crimes did not substantially outweigh the probative value. The testimony pertaining to the Williams rule victims qualified as admissible similar fact evidence because this evidence involved conduct strikingly similar to that committed in the schemes against the victims named in the information. The Williams rule victims gave similar stories in which the defendant engaged in some or all of the following conduct: lying about his credentials; holding out his co-conspirators as reputable associates from legitimate businesses or non-profit organizations; and failing to return money that was to be held in escrow.

As the defendant correctly points out, the evidence concerning his involvement with Debra Wenger was not as similar as the evidence pertaining to the other Williams rule victims. The main difference, however, is that the defendant took Ms. Wenger’s money purportedly to purchase stock, whereas he obtained money from the other victims under the pretense of seeking funding for their business ventures. We conclude that this singular difference does not render Ms. Wenger’s testimony inadmissible. The defendant similarly misrepresented his credentials to Ms. Wenger, told her that her money would be held in an “escrow” account for legitimate purposes, and then the escrow money disappeared and was never returned.

Furthermore, the record shows that the Williams rule evidence was not a feature of the trial. The Williams rule witnesses testified during two days of the trial; the trial itself lasted three weeks. Although the prosecutor did discuss the Williams rule witnesses in closing, the focus of the case was on the victims who were the subject of the charged crimes. In short, the Williams rule evidence was strikingly similar and it was relevant to rebutting the defendant’s claim that he was a legitimate businessman who did not knowingly participate in the fraud and who genuinely believed Wilson would obtain financing for the victims.

The defendant also argues, and the State concedes, that his conviction for grand theft in Count 13 violates double jeopardy. We agree.

Because a conviction that violates double jeopardy constitutes fundamental error, a double jeopardy claim may be raised for the first time on appeal. Tannihill v. State, 848 So.2d 442, 444 (Fla. 4th DCA 2003).

Where two offenses arise out of the same factual event, the test for double jeopardy is whether each offense contains an essential element that the other lacks. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); see § 775.021(4), Fla. Stat. (codifying the Blockburger elements test where the Legislature does not clearly provide for separate offenses). Applying the Blockburger test, our supreme court has held that grand theft is a lesser included offense of organized fraud. See Pizzo v. State, 945 So.2d 1203, 1206-07 (Fla.2006). Thus, a conviction for both organized fraud and grand theft based on the same conduct violates double jeopardy because, although organized fraud contains an element that is not an element of grand theft, “all of the elements of grand theft are included in the offense of organized fraud.” Id. at 1207.

Here, communications fraud is a sub-species of organized fraud. See § 817.034, Fla. Stat. As in Pizzo, all the elements of grand theft are included in the elements of communication fraud. Compare § 812.014, Fla. Stat. (grand theft), with § 817.034(4)(b), Fla. Stat. (communications fraud). However, communications fraud contains the additional elements of engaging in a scheme to defraud and communicating with any person with intent to obtain property from that person. Grand theft is thus a lesser included offense of communications fraud. Accordingly, the conviction for grand theft in Count 13 (as to Learical) must be vacated as a double jeopardy violation, as it was a lesser included offense of Count 3 (communications fraud as to Learical).

Finally, as to the sentencing issue, we conclude that the trial court committed fundamental error by offering to reduce the defendant’s sentence if he and his family came up with $100,000 to $150,000 of the restitution owed to the victims within sixty days. The United States Supreme Court has held that the Equal Protection Clause prohibits the state from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot immediately pay the fine in full. See Tate v. Short, 401 U.S. 395, 397-99, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). Following Tate, Florida courts have applied the well-settled principle that a defendant cannot be imprisoned solely because of his or her indigency. See, e.g., Rollins v. State, 299 So.2d 586, 589 (Fla.1974) (“If the defendant establishes his indigency and a right to state-appointed counsel, he cannot — under Tate v. Short — be imprisoned for not paying his fine.”).

In the present case, after pronouncing the sentence, the trial court offered a “bargain” with the defense, explaining that the court would “consider it a reduction in the prison sentence” if the defendant or his family came forward with substantial restitution, on the order of $100,000 to $150,000, within sixty days. Noting that the defendant could move for mitigation within sixty days, the court stated that if the defendant came up with a “considerable lump sum,” the court would consider reducing the prison sentence so that some money could go to the victims. The trial court did not specifically indicate how much of a reduction in the sentence the defendant would have received if he came up with a substantial restitution payment within sixty days, but the court did state that the defendant could not buy his way out of jail with the magnitude of loss involved to the victims in this case.

We find the Michigan case of People v. Collins, 239 Mich.App. 125, 607 N.W.2d 760 (1999), to be instructive. In Collins, the Michigan Court of Appeals held that the trial court violated the Equal Protection Clauses of the Michigan and federal constitutions by requiring a defendant to pay over $30,000 in restitution as a prerequisite to the suspension of 270 days of a 360-day prison sentence. Arguing in support of the sentence, the prosecution maintained that the trial court did not impose a jail sentence because the defendant failed to pay restitution, but rather merely allowed for the suspension of the jail sentence if the defendant met the restitution obligation. Id. at 765. However, the appellate court rejected this argument, finding it to be a distinction without a difference: “The sentencing order that allowed defendant reduced jail time if he paid restitution is not materially different from a sentence order that would require defendant to serve additional jail time if he did not pay restitution.” Id. The appellate court further reasoned that “[rjegardless of how the trial court phrases its order, the result is a shorter term for defendant if he can and does pay, a longer term if he cannot and does not pay — a result clearly prohibited by the Equal Protection Clause and the statute.” Id.

We agree with the sound and well-reasoned analysis in Collins and hold in this case that the trial court violated the defendant’s equal protection rights by offering to reduce the defendant’s prison sentence if the defendant and his family paid at least $100,000 in restitution within sixty days. Although the need for restitution can be a basis for a downward departure sentence, see § 921.0026(2)(e), Fla. Stat., in this case the need for restitution was not used as a basis for a downward departure; rather, the non-payment of restitution was used as a basis to impose a harsher sentence.

While we commend the trial court for making an effort to recover some portion of the substantial losses suffered by the victims, we cannot countenance this type of offer. It violates equal protection because it results in a harsher punishment for an offender who does not have the means to pay. Cf. Smith v. State, 933 So.2d 723, 725 (Fla. 2d DCA 2006) (stating in dicta that a similar condition in a plea agreement was “morally repugnant” and questioning “the wisdom of plea agreements that permit longer prison terms for poor people whose relatives have failed to raise the money needed to buy their freedom[,]” but finding that the issue was not cognizable on direct appeal). We therefore reverse for re-sentencing.

Affirmed in part, Reversed in part, and Remanded for re-sentencing.

HAZOURI and LEVINE, JJ., concur.

      . The term "communicate” has a specific statutory definition and means "to transmit or transfer or to cause another to transmit or transfer signs, signals, writing, images, sounds, data, or intelligences of any nature in whole or in part by mail, or by wire, radio, electromagnetic, photoelectronic, or photo optical system.” § 817.034(3)(a), Fla. Stat.

      . However, the defendant's conviction for grand theft in Count 15 (as to Galaxy Golf) still stands, because it was based upon different conduct from the communications fraud offense in Count 3.

      . We disagree, however, with the defendant’s contention that the trial court must sentence him to a minimum guidelines sentence on remand.


author: WARNER, J.

text:
    Kason MEME, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3594.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.

      Philip J. Massa, Regional Counsel, and Cynthia L. Comras, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The court sua sponte withdraws the previously issued opinion and issues the following corrected opinion.

Kason Meme appeals his conviction for possession of cocaine, arguing that the trial court erred in failing to grant a motion for judgment of acquittal, because the state presented insufficient proof that he had actual or constructive possession of cocaine. We disagree and affirm, as the state offered evidence the totality of which would support a finding of possession.

In the very early hours of the morning, Corporal Anthony Combs observed a vehicle with an expired license tag. He activated his lights and had a clear view of the interior of the car. As he did so, he observed the driver of the vehicle make a furtive movement, bending down as if to his feet and toward the right side of the floorboard. He did not see him drop anything. While he observed three other people in the car, no one else made any moves. The driver then stopped the vehicle in a plaza, and the officer approached the vehicle, immediately smelling the odor of marijuana. The driver, Kason Meme, appeared to be nervous and sweating and uttered statements such as “I’m going to jail.”

The officer went back to his vehicle to write a citation for driving with an expired tag. When he re-approached the vehicle, he asked to search it, based upon the smell of marijuana, and Meme consented. The officer located a tube containing cocaine under the seat in the same area where the officer had observed Meme bend down right before the stop. The cylinder was under the seat “but not that far back.” When the officer placed Meme under arrest for possession of cocaine, he continued to make statements, such as “I’m going to jail. My life is over.”

The state charged Meme with possession of cocaine, and Meme elected to waive a jury. At'trial, the state presented the officer’s testimony and then rested. After the trial court denied a motion for judgment of acquittal, Meme’s cousin, who was the front seat passenger, and Meme both testified. They both denied that Meme had leaned over when the officer first observed the vehicle. Each said that the two occupants in the back seat were not well known to them and were simply going clubbing with them. They denied knowingly possessing any cocaine.

The court found that the state had proved constructive possession of cocaine by Meme. Meme was in close proximity to the tube and just prior to the stop had reached down in the area where the cocaine was located. The court mistakenly found that, “There were only two people in the car at the time, and the other person was the passenger.” Based upon this recitation, the court found that the state had proved its case beyond a reasonable doubt. Meme was sentenced to time served. He appeals.

A motion for judgment of acquittal should be granted only when it is apparent that no legally sufficient evidence has been submitted under which a jury could find a verdict of guilty. Toole v. State, 472 So.2d 1174 (Fla.1985). In this circumstantial evidence case, the state is not required to rebut every possible variation of the events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. The question of whether the evidence fails to exclude any reasonable hypothesis of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, the verdict will not be reversed on appeal. State v. Law, 559 So.2d 187, 188 (Fla.1989).

The standard jury instructions set out the three elements that must be proven to establish possession of cocaine under section 893.13(6)(a), which are: 1) that the defendant possessed a substance; 2) that the substance was cocaine; and 3) that the defendant had knowledge of the presence of the substance. Fla. Std. Jury Instr. (Crim.) 25.7. Possession may be actual or constructive. “Possession is actual when the contraband is (1) in the defendant’s hand or on his person, (2) in a container in the defendant’s hand or on his person, or (3) within the defendant’s” ‘ready reach’ “and the contraband is under his control.” Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA 2009)(emphasis original).

In Dupree v. State, 705 So.2d 90 (Fla. 4th DCA 1998), we summarized the requirements to prove constructive possession:

If the premises on which the contraband is found is in joint, rather than exclusive, possession of a defendant, knowledge of the presence of the contraband on the premises and the accused’s ability to maintain control over it will not be inferred, but must be established by independent proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises.

Id. at 94 (citations omitted). Mere proximity to the contraband, however, is insufficient to prove either actual or construction possession. Id.; Fla. Std. Jury Instruction (Crim.) 25.7 (2007). And, “[wjhen contraband is found in a vehicle which is in the possession of two or more persons, circumstantial evidence of the defendant’s knowledge of the presence of the contraband must be consistent with the accused’s guilt, inconsistent with innocence, and must exclude every reasonable hypothesis except that of guilt.” Daniels v. State, 111 So.2d 1113, 1117 (Fla. 4th DCA 2001).

Whether this is considered an actual possession case or a constructive possession case, we conclude that the state presented sufficient evidence to withstand the motion for judgment of acquittal. When the officer shined his light on the vehicle, he saw Meme reach down to the same location where the cocaine container was found upon search, “almost under the seat but not that far back.” (emphasis supplied). The officer provided a demonstration of its location to the court during his testimony. Officer Combs saw no one else in the vehicle move. In addition, Meme acted extremely nervous when stopped and told the officer that “My life is over” and “I’m going to jail.” While these statements could have been directed to the smell of marijuana in the car, Meme repeated them when the officer told him he was under arrest for possession of cocaine, not marijuana. This combination of circumstantial evidence is inconsistent with Meme’s hypothesis of innocence that he did not know that the cocaine was in the vehicle.

The cases cited by Meme do not support reversal because none of them have all of the factors present in this case, and in particular do not involve a situation where the defendant was seen reaching to the place where the contraband was found. For instance, in Hill v. State, 736 So.2d 133, 134 (Fla. 1st DCA 1999), the circumstances showed only mere proximity plus nervousness of the defendant and was insufficient to prove possession. In the Interest of E.H., 579 So.2d 364 (Fla. 4th DCA 1991), also relied on by appellant, involved mere proximity to cocaine in a vehicle jointly occupied by the defendant and a passenger.

In Daniels v. State, a case factually similar to this case, we held that a motion for judgment of acquittal should have been granted. 777 So.2d at 1117. There, however, the similar facts were not inconsistent with the defendant’s hypothesis of innocence. An officer stopped a vehicle and observed the appellant, the driver, lean toward the passenger side floor board. Id. at 1114. When he approached the vehicle, the appellant seemed very nervous. The officer then observed the passenger holding a vial which he then dropped in the back seat. The officer retrieved the vial which contained cocaine. Our court held that a judgment of acquittal should have been granted, because the circumstances did not show possession by the appellant. Instead, the drugs had been in the exclusive possession of the passenger just prior to their being dropped by the passenger into the back seat. We discounted the view that the appellant’s leaning over to the passenger side showed possession. Appellant explained his movement, stating that he was actually going toward the glove box to get out his registration. Thus, the evidence of his leaning over to the passenger side of the vehicle not only did not show actual possession, as the drugs were being held by the passenger, but also showed that the state’s evidence was not inconsistent with the appellant’s reasonable hypothesis of innocence. In this case, however, Meme offered no such innocent explanation for the movement observed by the officer, instead claiming that he did not lean down, thus presenting the disputed issue of fact.

Although the court mistakenly stated that there were only two passengers in the vehicle, the motion for judgment of acquittal was still correctly denied. The totality of the independent evidence was sufficient to prove possession of the cocaine by Meme.

Meme also raises a claim of ineffective assistance of counsel for failure to file a motion to suppress, but we do not address it. This is not one of those claims so apparent on the face of the record that it may be addressed on direct appeal. See Henley v. State, 719 So.2d 990 (Fla. 4th DCA 1998). We have also examined the other issue raised on appeal and find no error.

Affirmed.

TAYLOR and CONNER, JJ., concur.