author: DAVIS, Judge.

text:
    Sascha WEBER, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-3601.
    District Court of Appeal of Florida, Second District.
    May 2, 2012.
    Sascha Weber, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Judge.

Sascha Weber, in the sole ground in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(d), contends that his appellate counsel was ineffective in failing to argue that the standard instruction provided to the jury for attempted manslaughter by act, also known as attempted voluntary manslaughter, constituted fundamental error because it imposed an additional element of intent to kill. We agree.

This case is controlled by our decision in Betts v. State, — So.3d -, 2011 WL 6058312 (Fla. 2d DCA 2011). Both Weber and Betts were charged with attempted first-degree premeditated murder, and both were convicted of the category one lesser-included offense of attempted second-degree murder with a weapon. Attempted manslaughter by act is also a category one lesser-included offense of attempted first-degree premeditated murder. Betts, — So.Sd at -; see also Fla. Std. Jury Instr. (Crim.) 6.2. In Betts, this court held that the standard attempted manslaughter by act instruction was fundamentally erroneous because it imposed an additional element of intent to kill. — So.3d at-.

Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010), was the first case to hold that the then standard manslaughter by act instruction was fundamentally erroneous because it improperly contained an additional element of intent to kill. In Betts, the initial brief in the direct appeal was filed after the issuance of the First District’s opinion in Montgomery. This court therefore concluded that Betts’ appellate counsel was ineffective in failing to argue, based on the First District’s Montgomery decision, that the standard attempted manslaughter by act instruction was fundamentally erroneous. — So.3d at -.

Here, the initial brief in Weber’s direct appeal of his judgment and sentence also was filed subsequent to the issuance of the First District’s Montgomery decision. We therefore conclude that Weber’s appellate counsel was ineffective in failing to argue that the standard attempted manslaughter by act instruction was fundamentally erroneous.

Because a new appeal would be redundant in this case, we reverse Weber’s conviction for attempted second-degree murder, vacate the sentence, and remand for a new trial. See Betts, — So.3d at-. As we did in Betts, we certify conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011).

Petition granted.

LaROSE and CRENSHAW, JJ„ Concur.

      . The standard manslaughter by act instruction provided to the jury at Weber's trial remains the standard instruction. See Fla. Std. Jury Instr. (Crim.) 6.6. However, there is a proposed amended instruction pending supreme court approval that would remove the intent to kill element. Banek v. State, 75 So.3d 762, 764 n. 1 (Fla. 2d DCA 2011).

      . We note that the First District's opinion in Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009), wherein the court held that the giving of the attempted manslaughter by act instruction constituted fundamental error in that case, also was issued prior to the filing of Weber’s initial brief on direct appeal and was available to appellate counsel.


source: Caselaw Access Project

author: CORTINAS, J.

license: Public Domain

text:
    Florence Penni SILVERMAN, Appellant, v. Sydney I. SILVERMAN, Appellee.
    No. 3D10-2682.
    District Court of Appeal of Florida, Third District.
    May 2, 2012.
    Rehearing Denied June 26, 2012.

      Lorenzen Law and Dirk Lorenzen, Coral Gables, for appellant.
    Ross & Girten and Lauri Waldman Ross and Theresa L. Girten, Miami; Koltun & Lazar and Dennis A. Koltun, for appellee.
    Before CORTIÑAS, LAGOA, and SALTER, JJ.
   CORTINAS, J.

Appellant/cross-appellee Florence Sil-verman (Wife) and Appellee/cross-appel-lant Sydney Silverman (Husband) both seek review of an order which upwardly modified Wife’s alimony, award by $1,700 per month. We reverse.

The parties were married in 1967, and the marriage was dissolved in 1990. In the marital settlement agreement (MSA), Husband agreed to pay $7,700 per month in combined alimony and child support. As the children reached the age of majority, the amount of permanent periodic alimony was reduced, ultimately reaching $6,100 per month. Under the terms of the MSA, Husband conveyed the marital home with all its contents to Wife, and maintained Wife as the beneficiary on a $500,000 life insurance policy at his expense. Husband agreed to provide medical insurance for the children, and to pay for their education. Since 1990, Husband has never failed to honor his obligations under the MSA, and has in fact frequently paid additional amounts to Wife to cover various expenses.

In 2009, Wife filed a supplemental petition for upward modification of permanent alimony, arguing that her reasonable expenses were no longer being met due to an increase in the cost of living. In his response, Husband allowed that his ability to pay had increased since the execution of the MSA, but denied that there had been a substantial change in circumstances warranting an upward modification of alimony. After a two-day trial, the court determined that the increased cost of living did justify an adjustment, but that Wife had misrepresented the marital lifestyle in her petition and testimony. The trial court increased the alimony payments from $6,100 to $10,200 per month, based on undisputed evidence concerning the Consumer Price Index and the ruling of the Florida Supreme Court that the increased cost of living over time can constitute a substantial change in circumstances. Bedell v. Bedell, 583 So.2d 1005, 1008 (Fla.1991).

Both parties submitted motions for rehearing. Wife argued that the trial court had not utilized the proper standard, and erred in not modifying the alimony enough to restore her to the lifestyle enjoyed during the marriage. Husband argued that no upward modification should be granted, as the trial court had misconstrued both the economic evidence introduced and the meaning of Bedell. The trial court granted Husband’s motion, and after hearing arguments from both parties, re-set the alimony payment from $10,200 per month to $7,800, an increase in $1,700 per month over the original amount. This appeal followed.

Wife argues that the modification awarded by the trial court did not restore her to the lifestyle she enjoyed during the marriage. Her expert witness established, in uncontroverted testimony, that according to the Consumer Price Index, the $6,100 she was granted in 1990 under the MSA would be equal to $10,187 today. The Florida Supreme Court has held that permanent periodic alimony must “provide the needs and necessities of life to a former spouse as they have been established by the marriage.” Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). This Court has held that “[a] divorced spouse is entitled to live in a style reasonably commensurate with the standard established by the parties during the course of a long-term marriage.” Waldman v. Waldman, 520 So.2d 87, 89 (Fla. 3d DCA 1988) (receded from by Acker v. Acker, 821 So.2d 1088 (Fla. 3d DCA 2002)) (limitation of holding recognized by Fla. Bar v. Barrett, 897 So.2d 1269 (Fla.2005)). Having recognized the impact of the cost of living as articulated in Bedell, argues Wife, it was error for the trial court to adjust the monthly payment to a sum closer to her current monthly expenses of $9,259 than to the $10,187 established by the Consumer Price Index.

The standard governing a modification of alimony is only relevant after there has been a showing that such a modification is warranted in the first place. No such showing has been made in this case. To obtain a modification, Wife must have demonstrated a substantial change in circumstances that had not been contemplated at the time of the dissolution which is sufficient, material, permanent, and involuntary. See, e.g., Morrison v. Morrison, 60 So.3d 410 (Fla. 2d DCA 2011); Eisemann v. Eisemann, 5 So.3d 760 (Fla. 2d DCA 2009); Chambliss v. Chambliss, 921 So.2d 822 (Fla. 2d DCA 2006). While the trial court was correct that Bedell does allow that the increased cost of living over time can qualify as a “change in circumstances,” the reduction in the purchasing power of the dollar is insufficient grounds, on its own, to support a modification. See Greene v. Greene, 372 So.2d 189 (Fla. 3d DCA 1979); Hillier v. Iglesias, 901 So.2d 947, 948 (Fla. 4th DCA 2005). Rather, “there must be a showing that the national problem of inflation impacts specifically on the individual claiming inflation as the basis for modification.” Waldman, 520 So.2d at 89. In Waldman, this Court was faced with facts quite similar to the instant case. An upward modification was reversed expressly because there was “a marked absence of the required showing of a real change in the circumstances of a party as opposed to an abstract and largely irrelevant change in the economy as a whole.” Id. As in the instant case, “[t]he trial court ... merely recited the increase in the Consumer Price Index and concluded that Mrs. Waldman’s standard of living had been reduced thereby.” Id. While Wife did offer testimony concerning the impact of inflation on her lifestyle, her account of the marital lifestyle was vigorously contested by Husband, and found to be “embellished” by the trial court. There was consequently no basis to award a modification.

Furthermore, Wife’s reliance on Bedell is misplaced. Although Bedell did consider the increased costs of living borne by a recipient spouse, the circumstances in Bedell nowhere resemble the facts of the instant case:

[The former wife] testified that because the cost of living had gone up since the divorce, her standard of living had gone down. Her major appliances, such as the dishwasher, the trash compactor, and the dryer, need to be replaced because the original items are now over fifteen years old. The carpet in the townhouse is worn out and the plumbing is in need of repair. She puts bed sheets over the windows at night because of the absence of drapes. She does not use the air conditioner because she cannot afford the high electric bills. She needs more money for food and clothing. She drives a [nine-year-old] 1982 automobile that keeps breaking down.

Bedell, 588 So.2d at 1008. These factors, together with the increased ability to pay of the payor spouse, led the Florida Supreme Court to rule that “the failure to award the wife an increase in alimony [from $415 to $496 per month] was an abuse of discretion.” Id. By contrast, the needs alleged by Wife in the instant case, according to her own brief, include “a copious clothing allowance, four trips annually to an exclusive golf resort, numerous holidays and travels to Europe, California, Las Vegas, Bahamas, New York, cruises, ultra chic shopping, bi-annual new Cadillac automobiles, live-in maid service, in-house weekly massages, health club memberships, manicures, pedicures, and extravagant entertainment.” Bedell allows for a modification of an alimony award when the increased cost of living has left the recipient spouse in dire circumstances; it does not stand for the proposition that an adjustment is warranted due to the loss of live-in maid service.

The order of the trial court granting an upward modification of alimony is reversed. We affirm all other issues on appeal.


author: PER CURIAM.

text:
    AYCO FARMS, INC., a Florida corporation, Appellant/Petitioner, v. Richard Harold PEELER, Scott Taylor, and Ronnie Carter, Appellees/Respondents.
    No. 1D11-5678.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    Rehearing Denied June 19, 2012.

      H. Matthew Fuqua of Bondurant and Fuqua, P.A., Marianna; Lance W. Shinder and Veronica Neisler of Lance W. Shinder, P.A., Boca Raton, for Appellani/Petitioner.
    H. Guy Green, Marianna, for Appel-lees/Respondents.
   PER CURIAM.

Ayco Farms, Inc., appeals the lower court’s order denying its motion to compel arbitration, and petitions for a writ of cer-tiorari to quash the lower court’s order granting the motion to compel discovery filed by Richard Peeler, Scott Taylor, and Ronnie Carter. We reverse and remand the appeal for the reason stated below, and deny the petition for writ of certiorari without comment.

The trial court erred as a matter of law by denying appellant’s motion to compel arbitration, because the court incorrectly found that appellant had waived its right to arbitrate by filing a motion for temporary injunction to enforce the parties’ Exclusive Sales Agreement. The following provision in the contract states that disputes between the parties must be submitted to arbitration except that Ayco may seek to enforce the agreement by injunction.

Disputes will be resolved by binding arbitration according to the Commercial Arbitration Rules of the American Arbitration Association, and not under the Perishable Agricultural Commodities Act' in Broward County, Florida. Notwithstanding the foregoing, Distributor may choose to bring suit in a state or federal court to obtain injunctive relief to enforce this Agreement.

Exercise of an express injunction exception to arbitration does not waive the party’s right to arbitration. See Fed. Vending, Inc. v. Steak & Ale of Fla., Inc., 687 So.2d 1366 (Fla. 4th DCA 1997); EMSA Ltd. Ptnshp. v. Mason, 677 So.2d 105 (Fla. 4th DCA 1996).

It was undisputed that the parties had contracted for appellant to buy all of ap-pellee Peeler’s watermelons; that appellee would grow, harvest, and pack them; and that appellant would pick them up and transport them. The trial court’s injunction required this procedure to go forward to keep any potential damage as low as possible in light of the short time remaining for harvest. The court did not decide that a breach had occurred, which party was at fault, what percentage each party was at fault, or any damages owed by either party for melons sold to third parties or melons left to rot in the field. The injunction preserved the status quo and did not change the status of either party. See Bowling v. National Convoy & Trucking Co., 101 Fla. 634, 135 So. 541 (1931).

APPEAL REVERSED and REMANDED, PETITION DENIED.

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    Jerome Anthony COOPER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1660.
    District Court of Appeal of Florida, First District.
    May 8, 2012.
    Rehearing Denied June 19, 2012.
    Jerome Anthony Cooper, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By habeas petition, Jerome Anthony Cooper (a/k/a Anthony Jerome Cooper, Inmate No. 065615), alleges that his sentence in Duval County Case No. 88-2488CF is illegal under Hale v. State, 630 So.2d 521 (Fla.1993). This exact same claim has been previously rejected on the merits and, thus, the current petition is barred by res judicata and the holding in Baker v. State, 878 So.2d 1236 (Fla.2004).

Cooper is serving a combined 30-year sentence on his 1988 case. This sentence is consecutive to the life sentence he received in Duval County Case No. 78-349CF. The offenses in the 1988 case were committed after Cooper escaped from prison while serving his sentence on the 1978 case.

This court affirmed the judgment and sentence in the 1988 case in Cooper v. State, 544 So.2d 202 (Fla. 1st DCA 1989) (table). Since then, Cooper has filed 13 appeals or petitions with this court related to his 1988 case. See 1st DCA Case Nos. 89-2847, 91-425, 92-740, 95-2047, 95-2135, 97-1012, 98-1103, 00-3571, 03-765, 04-741, 07-713, 07-3192, and 12-1660. He has filed at least an additional 13 cases related to his 1978 case. See, e.g., 1st DCA Case Nos. BI-39, BL-17, 89-1165, 89-1559, 90-847, 95-3645, 97-1208, 00-2212, 03-1533, 03-2937, 04-2226, 08-6217, and 10-2701.

In Cooper v. State, 678 So.2d 865 (Fla. 1st DCA 1996), this court reversed the denial of Cooper’s rule 3.800 motion raising a Hale claim and remanded for the court to consider the motion under rule 3.850. On remand, the trial court summarily denied the motion, but this court reversed and remanded because the trial court failed to attach record excerpts. Cooper v. State, 700 So.2d 734 (Fla. 1st DCA 1997). On remand, the trial court again summarily denied the motion, and on appeal, this court affirmed. Cooper v. State, 763 So.2d 321 (Fla. 1st DCA 1998) (table). This court also affirmed the trial court’s order barring further pro se filings from Cooper. Cooper v. State, 845 So.2d 187 (Fla. 1st DCA 2003) (table).

We find no merit in Cooper’s argument that, despite the prior rejection of his Hale claim on the merits, he should be granted habeas relief based on that claim in order to avoid a “manifest injustice.” Indeed, we find Cooper’s habeas petition to be frivolous, and pursuant to section 944.279, Florida Statutes, we direct the Clerk to forward a copy of this opinion to the Department of Corrections for disciplinary action. See Ibarra v. State, 45 So.3d 911 (Fla. 4th DCA 2010). Additionally, we caution Cooper that further frivolous filings related to his 1988 case — or his 1978 case — may result in the imposition of sanctions, including a prohibition on further pro se filings in this court. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (“[A]ny citizen, including a citizen attacking his or her conviction, abuses the right to pro se access by filing repetitious and frivolous pleadings, thereby diminishing the ability of the courts to devote their finite resources to the consideration of legitimate claims.”); Fla. R.App. P. 9.410(a).

PETITION DENIED; CLERK DIRECTED TO FORWARD COPY OF OPINION TO DEPARTMENT OF CORRECTIONS.

DAVIS, WETHERELL, and ROWE, JJ., concur.


text:
    Timothy Paul RADI and Filomena N. Radi, Appellant, v. VYSTAR CREDIT UNION, et al., Appellee.
    No. 5D11-2498.
    District Court of Appeal of Florida, Fifth District.
    May 8, 2012.
    Rehearing Denied June 5, 2012.
    Timothy Paul Radi and Filomena N. Radi, Pell City, Alabama, pro se.
    Elizabeth A. Haslett, of Vernis & Bowling of North Florida, P.A., Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. RApp. P. 9.815(a).

SAWAYA, PALMER, LAWSON, JJ„ concur.


author: SALTER, J.

text:
    Carlos VELASQUEZ and Jill Brown Velasquez, Appellants, v. Steven L. ETTENHEIM, as Trustee, Appellee.
    No. 3D11-2615.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.
    Rehearing Denied June 8, 2012.

      Michael Farrar, for appellants.
    Mendez and Mendez, and Sergio L. Mendez, Coral Gables, for appellee.
    Before CORTINAS, LAGOA, and SALTER, JJ.
   SALTER, J.

The appellants, former owners of a property in Miami-Dade County sold at a tax certificate auction, appeal a final circuit court order directing the Clerk of Court to disburse the surplus proceeds of the sale to the appellee. Concluding that the proceeds were disbursed prematurely and upon insufficient notice to interested parties, we reverse and remand for further proceedings.

Foreclosure, Fee Judgment, and Tax Sale Proceeds

The appellants owned two adjacent parcels in Miami-Dade County, referred to as Lots 9 and 10. Lot 9 was encumbered by a mortgage ultimately held by the appel-lee. In 2007, the appellee commenced a foreclosure action against Lot 9. After extensive circuit court and federal bankruptcy court proceedings, the appellee obtained a certificate of title to Lot 9 in 2010. Thereafter, the appellee obtained a final judgment of appellate attorney’s fees for $21,990.00 plus post-judgment interest.

In the interim, the appellants’ adjoining parcel, Lot 10, was sold for an unpaid 2007 property tax certificate in January 2011. The auction sale, conducted pursuant to chapter 197, Florida Statutes (2010), produced surplus proceeds of $64,779.10. The appellee sought to garnish the Clerk of Court (as the holder of those proceeds) in order to collect the final judgment for attorney’s fees in the foreclosure case. The Clerk moved to dissolve the writ of garnishment on two grounds: first, the Clerk claimed immunity from garnishment under Metropolitan Dade County v. United Guaranty Residential Insurance Co. of North Carolina, 645 So.2d 1117 (Fla. 3d DCA 1994); and second, the Clerk asserted that the tax collector had identified twenty-two lienholders, including five governmental lienholders, entitled to notice and (potentially, based on priority and compliance with applicable law) disbursement.

The appellee then filed a “motion for disbursement,” representing that “[n]o other party in this cause or the Tax Creditor list from the Title Report has filed any claim and the statutory period for filing claims has expired.” At a subsequent hearing that was not attended by the appellants (or by any of the twenty-two lien-holders identified by the Clerk, though they were allegedly mailed notices by the appellee), the trial court granted the motion and directed the Clerk to disburse $22,867.48 to the appellee. This appeal followed.

Analysis

Simply stated, the appellee led the trial court into error. The absence of opposition by the appellants and lienhold-ers does not ratify the complete departure from the statutory procedures for surplus proceeds as orchestrated by the appellee. Section 197.582(2), Florida Statutes (2010), specifies that surplus proceeds are to be distributed first (and ratably, if the available proceeds are less than the total claims) to “governmental units” holding lien claims against the property. Thereafter, remaining proceeds are distributed to non-governmental lienholders in the order of their lien priority and to the extent of their recorded liens. Only then do any remaining funds become distributable to the titleholders.

Procedurally, the Clerk was required to retain the proceeds for a period between 90 and 180 days (dependent on the timing of the sale within a fiscal quarter) to allow the parties in interest to make their claims. At the conclusion of that period, any remaining unclaimed proceeds were to be held by the Board of County Commissioners for a period of two years. During that period, lienholders and other parties in interest could make their claims, and at the end of the period any remaining funds reverted to the County. Rule 12D-13.065, Florida Administrative Code, “Disbursement of Proceeds of Sale,” gives effect to the procedures and priorities specified in chapter 197. Subparagraph (2) of that rule provides that the Clerk “shall” first distribute surplus proceeds to governmental unit lienholders as described above, and subparagraph (3) requires distribution of any remaining funds thereafter to non-governmental lienholders according to their priorities and claim amounts. Subparagraph (4) of the rule directs the Clerk to send a prescribed form of notice to all such lienholders and the titleholder “advising them of the funds held for their benefit.” The rule does not authorize a creditor of the titleholder to co-opt or circumvent this process by sending out alternative forms of notice.

The appellee’s arguments here no doubt seemed logical to a trial court considering a motion with no opposition present. Candor to the tribunal, however, would have included copies of the pertinent statutes, the applicable rule, and the reported case of DeMario v. Franklin Mortgage & Investment Co., Inc., 648 So.2d 210 (Fla. 4th DCA 1994). In that case, the Fourth District specifically held that the initial period during which any such proceeds are held by the Clerk “cannot be interpreted as imposing a ninety day claims bar for persons otherwise entitled to distribution of surplus tax proceeds,” and that “[t]he only statutory limit for making claim to the excess funds is the two-year bar found in section 197.582.” Id. at 213-14 (citations omitted). The trial court lacked the authority to order disbursement in contravention of these authorities.

We also reject the appellee’s argument that the appellants lack standing to challenge the order on appeal. The appel-lee argues that the appellants’ failure to appear at the hearing on the motion, and the apparent fact that the appellants are “out of the money” (because of the twenty-two liens identified by the tax collector), have deprived them of any justiciable interest in this case. We disagree. Depending on which lienholders invoke their statutory rights to the surplus proceeds, the appellants as titleholders may be entitled to a payment. They may also be more concerned about the ability of governmental unit lienholders to recover claims against them than the ability of the appellee to collect the final judgment for attorney’s fees, as different types of claims are subject to different exemptions and to different treatment if a bankruptcy should later eventuate.

Conclusion

For all these reasons, the order granting motion for disbursement is reversed and remanded for further proceedings consistent with this opinion.

      . The foreclosure judgment was affirmed per curiam by this Court. Velasquez v. Ettenheim, 41 So.3d 228 (Fla. 3d DCA 2010).

      . Under the statutory scheme as implemented by the County, the tax collector obtains a third-party title report on the property that is the subject of the tax certificate and auction. § 197.502(5)(a), Fla. Stat. (2010).

      . § 197.473, Fla. Stat. (2010). In mid-2011, this procedure was changed by the Legislature. Unclaimed funds now revert to the State.

      . The two-year bar appears in section 197.582 via a cross-reference to an express provision in section 197.473.


text:
    Sherry RANDAZZO, Appellant, v. Jimmy RANDAZZO, Appellee.
    No. 4D09-4394.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.
    Rehearing Denied June 26, 2012.

      Joseph R. Gibson of The Law Offices of Gibson & Gibson, P.A., Cooper City, for appellant.
    Harvey D. Rogers of Harvey D. Rogers, P.A., Miami, for appellee.
   PER CURIAM.

Sherry Randazzo (former wife) appeals an order reimbursing Jimmy Randazzo (former husband) overpayment of child support and awarding him attorney’s fees. We affirm.

Several years after the parties’ marriage was dissolved, former husband moved pursuant to the marital settlement agreement to recalculate child support, asserting that the eldest child graduated from high school. The matter was referred to a general magistrate. The magistrate recalculated child support to $925 per month. In calculating former husband’s gross monthly income, the magistrate relied on pay stubs and his testimony that he, a police detective, had earned regular overtime in the past. The magistrate dismissed former husband’s testimony that overtime would be irregular in the future because of a change in policy that made it harder for police officers to accrue overtime, and that, in fact, he had seen his own overtime income drop substantially. There was some dispute on when the child had actually graduated, but the magistrate determined that the child graduated on June 6, 2008. The magistrate ordered the reduction in child support retroactive to that date and reserved jurisdiction on overpayment.

The trial court ultimately held a hearing on overpayment. Former wife has not provided a transcript of the hearing, at which she, former husband, and former husband’s attorney testified. The trial court issued an order finding that former husband had overpaid child support and reimbursing him for the amount. The court based its calculation on a monthly share of support figure for former husband of $729, apparently drawn from a child support worksheet assuming a scenario where former husband earned no overtime. Additionally, the court ordered former wife to pay a portion of former husband’s attorney’s fees and costs. Citing section 61.16, Florida Statutes (2009), Rosen v. Rosen, 696 So.2d 697 (Fla.1997), and other authorities, the court concluded that former wife was responsible for a portion of the fees due to conduct that caused former husband to unreasonably and unnecessarily incur those fees. Citing Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), and considering the Rowe factors, the court arrived at a reasonable hourly fee and reasonable number of hours expended.

Former wife argues that (1) the trial court improperly substituted its judgment for that of the magistrate’s when it used a figure for monthly child support payments different than the magistrate’s and (2) the court erred in awarding former husband attorney’s fees.

First, we reject former wife’s argument that the trial court erred in using a different figure than the magistrate. Former wife’s failure to furnish a transcript of the evidentiary hearing before the trial court precludes our intelligent review of this mixed question of fact and law. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Skipper v. Skipper, 654 So.2d 1181, 1182 (Fla. 3d DCA 1995) (treating question of overtime as mixed question of fact and law).

Former wife argues, however, that the claimed error is apparent on the face of the order. See, e.g., Wofford v. Wofford, 20 So.3d 470, 474 (Fla. 4th DCA 2009) (exception to Applegate “where errors appear on the face of the judgment”). Assuming that is true, and based on the limited record before us, we cannot say the order is facially erroneous. A trial court can reject a magistrate’s recommendations if the magistrate has misconceived the legal effect of the evidence. See Dent v. Dent, 438 So.2d 903, 904 (Fla. 4th DCA 1983). The rule for including overtime earnings in gross income is that such earnings should be included when they will be regularly available as a source of income in the future. E.g., Butler v. Brewster, 629 So.2d 1092, 1092-93 (Fla. 4th DCA 1994). Applying that rule, the trial court could have properly found that the magistrate misconceived the legal effect of the former husband’s testimony — i.e., that it would be much more difficult for him to earn overtime in the future — and relied on a figure that assumed he would not earn overtime.

Second, we reject former wife’s argument that the trial court erred in awarding former husband attorney’s fees and costs. Contrary to her argument, the trial court made sufficient findings. It cited Rowe and made findings on the reasonable hourly rate and the number of hours reasonably expended. See Campbell v. Campbell, 46 So.3d 1221, 1222 (Fla. 4th DCA 2010) (a trial court must make findings concerning the reasonable hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors). Further, the court’s order cited the basis for the award, section 61.16, and demonstrated that it considered the Rosen factors, as it specifically cited to that case. The court also made a finding for why former husband was entitled to an award; namely, former wife’s conduct caused former husband to incur unreasonable and unnecessary fees and costs.

The cases former wife relies on are distinguishable. Unlike the order in Van Epps v. Hartzell, 934 So.2d 590 (Fla. 5th DCA 2006), which did not state the basis for the award or contain any findings, the order in this case stated a basis for the award, section 61.16, and contained supporting findings. Unlike the order in Bane v. Bane, 750 So.2d 77 (Fla. 2d DCA 1999), approved, 775 So.2d 938 (Fla.2000), the order here makes clear that the trial court considered the Rosen factors; further, this case does not involve the assignment of a successor judge and whether such judge considered the whole record in evaluating the parties’ respective conduct. Finally, in Wilkinson v. Wilkinson, 714 So.2d 524 (Fla. 5th DCA 1998), the fifth district did not reverse the order at issue in that case on the basis that the trial court found only that the husband had asserted “.unreasonable positions”; rather, having already determined to reverse on another ground, the fifth district offered its own view, for the trial court’s benefit on remand, on whether the finding was supported by competent, substantial evidence.

Affirmed.

WARNER, GROSS and TAYLOR, JJ., concur.

      . The trial court did not need to make findings on the parties’ financial needs and abilities to pay. See Becker v. Becker, 778 So.2d 438, 439 (Fla. 1st DCA 2001) (holding that, although "the record on appeal does not indicate the trial court made an express finding regarding the husband’s ability to pay the fees, such a finding was not required under the circumstances,” because the court made the award based on the husband's inequitable conduct).


text:
    Betty HORNE, Appellant, v. MIAMI-DADE COUNTY, Florida, etc., and Metropolitan Homes, LLC, etc., et al., Appellees.
    No. 3D11-1806.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.
    Rehearing Denied June 8, 2012.
    Paul Haralson, Miami, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney and Rodolfo A. Ruiz, Assistant County Attorney; Luis G. Montaldo, Chief Counsel for Harvey Ruvin, Clerk of Courts; Larson and Jones, and Steven L. Jones, for appellees.
    Before CORTIÑAS, LAGOA, and SALTER, JJ.
   SALTER, J.

Mrs. Betty Horne appeals an adverse final summary judgment in two consolidated circuit court cases. In the first, she and her late husband sued appellees Miami-Dade County and Metropolitan Homes LLC to vacate a tax certificate sale of the Hornes’ Miami Lakes home of 37 years. In the second, appellee Metropolitan (purchaser of the home at the tax deed sale for a fraction of its then-assessed value) sued to quiet title to the home. We reverse the final summary judgment and remand the cases for further proceedings.

The Hornes purchased their home in Miami Lakes in 1968. In 1995, they conveyed the residence to themselves as initial co-trustees of an express family trust agreement. By 2005, they owned the home free and clear. In that year, in recognition of their advanced age and poor health (Mr. Horne had been diagnosed with dementia), the Hornes moved in with a son in Palm Beach Gardens. The family trust retained title to the unoccupied home in Miami Lakes.

Through some unspecified oversight, the 2005 property tax bill on the home in Miami Lakes was not paid and, consistent with Chapter 197, Florida Statutes (2005), a tax certificate was issued in mid-2006. Although the property taxes on the Miami Lakes residence for 2006 were paid, the tax certifícate for the unpaid 2005 taxes remained outstanding. In late 2009, the certificate holder applied to the Miami-Dade tax collector for the issuance of a tax deed. Certified mailings to the Hornes’ Miami Lakes address were returned as undeliverable. The Clerk’s office also published the four weekly notices of tax deed sale as specified in section 197.512, Florida Statutes (2009).

In January 2010, the Miami-Dade Clerk’s office conducted an auction sale of the home. A video and transcript of the auction are part of the record. For a property with a 2010 assessed value of over $215,000, appellee Metropolitan ultimately bid and paid $50,000. The bidding had moved from the statutory floor amount of $17,151 through levels at $25,000, $40,000, and $41,000, before Metropolitan bid $50,000. As the auctioneer began to close the bidding, another bidder attempted to bid $53,000. The auctioneer did not allow the bid, and Metropolitan was issued a tax deed. The circuit court lawsuits (and the final summary judgment denying relief to Mrs. Horne) followed.

In a motion for relinquishment, and thereafter at oral argument, the County candidly and commendably acknowledged that an evidentiary hearing regarding the notice issue would have been appropriate in light of Mrs. Horne’s affidavit. We agree. Although the applicable tax deed statute and rule purport to limit sharply the issues that can be raised if the specified prerequisite steps have been taken, Florida courts have granted relief when the Clerk’s attempted notice of the pending deprivation of property is ineffective and additional reasonable steps might have provided actual notice. Delta Prop. Mgmt. v. Profile Invs., Inc., 87 So.3d 765 (Fla. 2012); Patricia Weingarten Assocs., Inc. v. Brown, 974 So.2d 559 (Fla. 5th DCA 2008). Such decisions are grounded upon basic constitutional due process considerations.

Metropolitan disagrees with its co-appel-lee and argues that Crane v. Martin, 741 So.2d 1251 (Fla. 1st DCA 1999), controls. We find the recent cases more persuasive on the particular record here, however, as this is a case in which the statutory form of notice was concededly ineffectual, a later property tax bill was paid, the Hornes’ local telephone number continued to be listed, and the property in question is a residence rather than (as in Crane) an office building.

As a second and independent basis for reversal, we are concerned that the visible irregularity in the auction of the property, coupled with the gross disparity between the bid and the assessed value, failed to elicit truly competitive bidding. As all of the equity above the certificate amount and costs of sale were for the benefit of the Hornes, they have demonstrated a resulting injustice. In Arlt v. Buchanan, 190 So.2d 575, 577 (Fla.1966), the Supreme Court of Florida explained:

The general rule is, of course, that standing alone mere inadequacy of price is not a ground for setting aside a judicial sale. But where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, equity will act to prevent the wrong result.

In the present case, Mrs. Horne has indicated that she is prepared to assure that Metropolitan’s winning bid amount is refunded, with statutory interest. Property taxes payable or paid after Metropolitan took title must also be addressed as the 2010 auction sale is unwound and the parties are restored to the status quo ante.

The summary final judgments below are reversed and remanded for further proceedings. In the event that the court determines that the County took “additional reasonable steps” to notify Mrs. Horne of the 2010 tax sale (satisfying the due process requirements for adequate notice as addressed in Delta Property Management, supra), a new auction sale shall be conducted upon written notice to Mrs. Horne and her counsel.

Reversed and remanded.

      . § 197.502, Fla. Stat. (2009).

      . Fla. Admin. Code R. 12D-13.062.


text:
    Jose A. PACHECO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-901.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.
    Rehearing Denied June 6, 2012.
    Jose A. Pacheco, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. Butts v. State, 898 So.2d 1082 (Fla. 3d DCA 2005) (holding Florida Rule of Criminal Procedure 3.800(a) is the improper vehicle for attacking the sufficiency of a notice of intent to seek enhanced sentence); accord Cooper v. State, 817 So.2d 934 (Fla. 3d DCA 2002).


text:
    Joseph A. GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0854.
    District Court of Appeal of Florida, First District.
    May 9, 2012.
    Rehearing Denied June 19, 2012.

      Joseph A. Griffin, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

DAVIS, WETHERELL, and SWANSON, JJ., concur.


text:
    Burlie B. KIMMONS III, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-421.
    District Court of Appeal of Florida, First District.
    May 9, 2012.
    Rehearing Denied June 20, 2012.
    Burlie B. Kimmons, III, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

PADOVANO, ROWE, and RAY, JJ., concur.


author: LaROSE, Judge.

text:
    Cody ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2202.
    District Court of Appeal of Florida, Second District.
    May 11, 2012.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Cody Rogers appeals his conviction and sentence for attempted robbery with a firearm. See §§ 812.13(1), (2)(a); 777.04(1), (4)(c), Fla. Stat. (2008). The trial court erred in admitting Williams rule evidence. See Williams v. State, 110 So.2d 654 (Fla.1959). Accordingly, we are compelled to reverse and remand for a new trial.

Allegedly, Mr. Rogers and Timothy Brooks robbed Jakob Cunnien and William White. Mr. Brooks fatally shot Mr. White. The State charged Mr. Rogers with first-degree felony murder and two counts of robbery. See §§ 782.04(3)(d), 812.13(1), (2)(a), Fla. Stat. (2008).

At Mr. Rogers’ trial, the court allowed the State to present testimony that Mr. Rogers committed a robbery one week before this shooting. The jury acquitted Mr. Rogers of felony murder and one count of robbery. On the remaining robbery count, the jury found him guilty of the lesser offense of attempted robbery with a firearm. See §§ 812.13(1), (2)(a); 777.04(1), (4)(c). The trial court sentenced Mr. Rogers to fifteen years in prison with a ten-year mandatory minimum for using a firearm. See § 775.087(2)(a)(l), Fla. Stat. (2008).

The State introduced testimony from witnesses who saw the shooting. Brian Peterson testified that a group of people were gathered on the street when Mr. Cunnien drove up with Mr. White in the passenger seat. Mr. Cunnien and Mr. White asked Mr. Rogers for drugs. Mr. Rogers directed them to Mr. Peterson. Mr. White purchased some pills from Mr. Peterson. Mr. Brooks asked Mr. Peterson what was in the car. Mr. Peterson replied that he saw a sack of marijuana.

Brody Kraft approached the driver’s side of the car and accused Mr. Cunnien of robbing him a year earlier. Mr. Brooks approached the passenger door, pointed a gun at Mr. White’s head, and asked, “Is this the mother f-r that robbed you?” He told Mr. White to give up whatever they had. Mr. Brooks yanked a chain from Mr. White’s neck.

Chris Everhart testified that Mr. Rogers ran up to the driver’s side window, pointed a gun at Mr. Cunnien, and said, “Give me your shit.” Mr. Peterson testified that Mr. Rogers told Mr. Cunnien to “give it up.” Mr. Cunnien testified that Mr. Rogers said, “Give me what you got.” Mr. Cunnien threw the bag of marijuana out of the car and began to drive away. As he pulled away, a shot rang out and Mr. White was struck in the neck. He subsequently died. Austin Dodge testified that he heard a gunshot and saw Mr. Brooks and Mr. Rogers with guns in their hands. After the gunshot, Mr. Brooks “dumped” a gun, a necklace, and some pills in Mr. Dodge’s car.

Testifying on his own behalf, Mr. Rogers stated that he had been eating at his car and heard Mr. Kraft yelling at Mr. Cun-nien and Mr. White. He saw Mr. Kraft scoot back from the side of the car with his arms up, eyes wide open, and mouth dropped. Mr. Rogers believed Mr. Cun-nien had pulled a gun on Mr. Kraft. Mr. Rogers ran to his car, grabbed a pistol from the door pocket, and ran toward Mr. Cunnien’s car to defend Mr. Kraft. Mr. Rogers claims that when he yelled, “Give it up,” he was telling Mr. Cunnien to give up the gun. When he got up to the car, he saw Mr. Cunnien holding a black .22 or .25 semiautomatic handgun. Mr. Rogers heard a gunshot. He thought Mr. Cun-nien might have shot him. He looked up in shock as the car sped away and saw Mr. Brooks holding a gun. Mr. Rogers said, “Did you shoot him? Did you shoot him? Did you shoot him? Why did you do that?”

The State sought to introduce evidence that Mr. Rogers committed a robbery with Mr. Peterson and Mr. Brooks a week before the shooting. The defense objected. The State proffered the testimony of Mr. Peterson, who claimed that he, Mr. Rogers, and Mr. Brooks drove in Mr. Rogers’ ear to Creekwood Park to buy drugs. On the way there, Mr. Rogers gave Mr. Brooks a gun. When they arrived at Creekwood Park, a man got in the back seat of the car. Mr. Brooks put two guns to the man’s face and said, “Let me get what you got, give it up.” The man surrendered pills and cash and then fled. Mr. Peterson, Mr. Brooks, and Mr. Rogers divided the pills and cash. The robbery was not reported to law enforcement. Mr. Peterson could not identify the victim or offer identifying characteristics. He could not state the day of the week the robbery allegedly occurred. Mr. Peterson admitted that he wanted to be a cooperating State witness to avoid drug and homicide charges. The trial court allowed the testimony into evidence.

Before allowing the State to present Williams rule evidence to the jury, the trial court determined: (1) that there was clear and convincing evidence that Mr. Rogers committed the uncharged crime, (2) that the uncharged crime was similar enough to be relevant, (3) that the uncharged crime was not so temporally remote as to diminish its relevance, and (4) that the prejudicial effect of the evidence did not substantially outweigh its probative value. See Carbonell v. State, 47 So.3d 944, 947 (Fla. 3d DCA 2010). With specific reference to similarity, the trial court found that both robberies involved guns, drugs, and the order to “give it up.” The trial court found the offenses probative of Mr. Rogers’ intent, in light of his claim that he was defending Mr. Kraft instead of committing robbery, and to show that Mr. Rogers had more than a passing acquaintance with Mr. Brooks because he knew him well enough to commit a prior robbery with him.

The trial court did not abuse its discretion in finding that Mr. Peterson’s testimony was clear and convincing that the previous robbery occurred. See Williams v. State, 967 So.2d 735, 747-48 (Fla.2007) (stating that standard of review for trial court’s rulings on admissibility of evidence is abuse of discretion). However, the two events were not similar enough to warrant admission of the testimony. “[Collateral crime evidence is admissible as Williams rule evidence only if it is strikingly similar to the charged crime and the similarity is so unique as to constitute ‘fingerprint’ evidence.” Fitzsimmons v. State, 935 So.2d 125, 127-28 (Fla. 2d DCA 2006). We note that the robberies occurred at different places. The Creek-wood Park robbery allegedly occurred in Mr. Rogers’ car. In the other, there were two victims and they were in Mr. Cun-nien’s car with Mr. Rogers and Mr. Brooks standing outside. Both Mr. Rogers and Mr. Brooks used guns during this robbery, while, at Creekwood Park, only Mr. Brooks used a gun, and it was Mr. Brooks who told the victim to “give it up.” Here, nothing indicates that Mr. Rogers and Mr. Brooks divided anything they obtained, unlike the alleged three-way division of the pills and cash from the Creekwood Park robbery. Finally, this incident involved an altercation between Mr. Cunnien and Mr. Kraft; Mr. Rogers testified to approaching Mr. Cunnien’s car only after the altercation began. These circumstances are not so strikingly similar that they rise to the level of “fingerprint evidence.”

Evidence of the prior robbery should not have been allowed. The minds of an average jury might have found the State’s case significantly less persuasive had the testimony of the prior robbery been excluded. See Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Thus, the error is not harmless. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).

The [harmless error] test is not a suffi-eiency-of-the-evidenee, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test.... The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.... If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Id. We reverse and remand for a new trial. Consequently, we do not address the other issues raised by Mr. Rogers.

Reversed and remanded.

CASANUEVA and WALLACE, JJ., Concur.


author: SILBERMAN, Chief Judge.

text:
    Armistar COLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5943.
    District Court of Appeal of Florida, Second District.
    May 11, 2012.

      Armistar Cole, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Armistar Cole seeks review of three orders denying his motion and amended motion for postconviction relief which were filed pursuant to Florida Rule of Criminal Procedure 3.850. Cole raised twelve claims in his motions; the postconviction court summarily denied eleven of these claims and denied the final claim after evidentiary hearing. We affirm the denial of all claims except for claims (l)(d), (2)(a), and 2(e), which were all summarily denied. As to those three claims, we reverse with directions for the postconviction court to afford Cole leave to amend within a reasonable time.

After a jury trial, Cole was convicted of robbery and false imprisonment based on evidence that he robbed a Dollar Store while using a firearm and in the process confined the owner/victim in a store restroom. The State relied primarily on a surveillance recording of the robbery at trial, and Cole raised an identity defense. Cole exercised his right not to testify.

In claim (l)(d), Cole alleged that trial counsel was ineffective for failing to prepare Cole to testify at trial “despite [Cole’s] strong desire to do so and the lack of any other defense witnesses to refute the victim’s testimony.” The postconviction court summarily denied relief on this claim based on Cole’s statement during trial that it was his decision not to testify. However, in light of Cole’s allegations, his statement at trial does not necessarily preclude relief. Cole alleged he did not testify because counsel had not properly prepared him to testify, not because he had been coerced. But Cole has not set forth a facially sufficient claim because he has not alleged prejudice; i.e., what he would have testified to that would have changed the outcome of the proceeding in light of the other evidence against him. See Hayes v. State, 79 So.3d 230, 231 (Fla. 2d DCA 2012). Because Cole’s claim was facially insufficient, the postconviction court should have dismissed the claim with leave for him to amend if he could do so in good faith. See Spera v. State, 971 So.2d 754, 761 (Fla.2007).

In claim (2)(a), Cole alleged that trial counsel was ineffective for failing to impeach the investigating detective and the victim with prior deposition testimony. He claimed that counsel would have created reasonable doubt for the jury if counsel had impeached these witnesses with their prior inconsistent testimony. The postcon-viction court summarily denied relief on this claim based on its finding that trial counsel thoroughly impeached both witnesses. While trial counsel did impeach the victim with prior inconsistent statements, he did not impeach the detective in this manner. Thus the transcript attached to the postconviction court’s order supports the denial of relief only as to the portion of the claim regarding cross-examination of the victim.

While the transcript does not support the court’s finding as to the detective, Cole’s claim is facially insufficient because it does not allege what specific testimony should have been impeached. See Howard v. State, 17 So.3d 774, 776 (Fla. 2d DCA 2009). Because Cole’s claim is facially insufficient, the postconviction court should have dismissed the claim with leave for him to amend if he could do so in good faith. See Spera, 971 So.2d at 761.

In claim (2)(e), Cole alleged that trial counsel was ineffective for failing “to object to the State’s accusatory and inflammatory opening remarks that were not supported anywhere by the evidence.” The postconviction court summarily denied relief on this claim based on its finding that there was no basis for an objection. The postconviction court explained that the trial court had the discretion to control the opening statements which are not evidence but an outline of what the attorney expects to prove.

This statement of the law is correct as far as it goes. However, opening statements may not be abusive and inflammatory. See Conahan v. State, 844 So.2d 629, 638 (Fla.2003). Because the postconviction court did not attach the transcript of opening statements to its order, we cannot ascertain whether the prosecutor’s opening statements were so prejudicial as to warrant relief.

That said, Cole’s claim is facially insufficient because he does not specify which of the prosecutor’s remarks are objectionable. See Baldwin v. State, 978 So.2d 257, 258 (Fla. 2d DCA 2008). Because Cole’s claim was facially insufficient, the postconviction court should have dismissed the claim with leave for him to amend if he could do so in good faith. See Spera, 971 So.2d at 761.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and DAVIS, JJ., Concur.


author: KELLY, Judge.

text:
    Christopher JOHNPIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2286.
    District Court of Appeal of Florida, Second District.
    May 11, 2012.
    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.
   KELLY, Judge.

Christopher Johnpier appeals from the sentence imposed on him after his probation was revoked. He argues that the trial court erred by refusing to hear any argument on sentencing. We agree and reverse. See Caldwell v. State, 72 So.3d 779, 779 (Fla. 2d DCA 2011) (citing Estevez v. State, 705 So.2d 972, 973 (Fla. 3d DCA 1998)) (holding that a probationer must have an opportunity to be heard regarding what sentence should be imposed and to present mitigating evidence).

Accordingly, we affirm the revocation of Johnpier’s probation but reverse Johnpier’s sentence and remand to the trial court for a new sentencing hearing.

Affirmed in part; reversed in part.

WHATLEY and MORRIS, JJ„ Concur.


text:
    William NORMOYLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0619.
    District Court of Appeal of Florida, First District.
    May 11, 2012.
    Rehearing Denied June 20, 2012.
    William Normoyle, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., CLARK and MAKAR, JJ., concur.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for HSI Asset Securitization Corporation 2006-OPT4 Mortgage Pass-Through Certificates, Series 2006-OPT4, Appellant, v. Damasino TAPERI and Rosalinda Taperi, Appellees.
    No. 4D11-1582.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.
    Rehearing Denied June 26, 2012.

      Nancy M. Wallace and Kristen M. Fiore of Akerman Senterfitt, Tallahassee, and William P. Heller and Nathaniel D. Callahan of Akerman Senterfitt, Fort Lauder-dale, for appellant.
    Thomas E. Ice of Ice Legal, P.A., Royal Palm Beach, for appellees.
   PER CURIAM.

We reverse the summary final judgment granted below, which was based on the failure of one of the defendants to sign the applicable mortgage. The bank’s filing of the proper mortgage corrected the clerical error of the attachment of the wrong mortgage to an amended complaint.

Deutsche Bank National Trust Company brought a mortgage foreclosure action against Damasino and Rosalinda Taperi. To its initial complaint, the bank attached a mortgage signed by both Taperis. The Taperis’ motion to dismiss was granted and the bank filed an amended complaint. To the amended complaint, the bank inadvertently attached the wrong mortgage— one that had never been recorded and which was signed by Mr. Taperi but not by Mrs. Taperi. In the Taperis’ answer to the complaint, they asserted that Mrs. Ta-peri had not signed the mortgage attached to the amended complaint and they moved for summary judgment on that ground. The bank filed a “Notice of Filing of Recorded Mortgage” along with the copy of the mortgage signed by both Taperis; the notice of filing was served on the Taperis’ lawyer. The bank followed up by filing the original mortgage, note, and assignment of mortgage on February 4, 2011. A month later, the trial court granted summary final judgment in favor of Mrs. Ta-peri.

The trial court erred in granting the motion for summary judgment. The bank had cured its clerical error in failing to file the mortgage that both Taperis signed by its notice of filing a copy of that mortgage, which was served on the Taperis’ lawyer. Cf. Hughes v. Home Sav. of Am., 675 So.2d 649, 650 (Fla. 2d DCA 1996) (noting that such a notice, sent to the adverse party, would have cured the failure to attach that was the subject of a pre-answer motion to dismiss).

The Taperis raised no issue of fact concerning their both signing the correct mortgage attached to the notice.

Reversed and remanded.

WARNER, STEVENSON and GROSS, JJ., concur.


author: ROTHENBERG, J.

text:
    Christopher TREVETT and Cynthia Trevett, Husband and Wife, Appellants/Cross-Appellees, v. Joyce WALKER, Appellee/Cross-Appellant.
    No. 3D10-1953.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.
    Rehearing Denied July 2, 2012.
    Jay Rothlein, Miami Beach, for appellants/cross-appellees.
    GrayRobinson, P.A., and Edwin A. Scales, III, KeyWest, Mark N. Miller, Lakeland, and Kristie Hatcher-Bolin, Lakeland, for appellee/cross-appellant.
    Before SHEPHERD, ROTHENBERG and EMAS, JJ.
   ROTHENBERG, J.

The plaintiffs, Christopher Trevett and Cynthia Trevett (“the Trevetts”), appeal from a final judgment denying their claim for ejectment based on the trial court’s finding that their claim is barred by the affirmative defense of laches. We affirm. The defendant, Joyce Walker (“Ms. Walker”), appeals from the portion of the final judgment denying her claim to quiet title based on the trial court’s finding that she failed to establish boundary by acquiescence. As we are affirming the trial court’s denial of the Trevetts’ ejectment claim, we do not reach the issue raised by Ms. Walker on cross-appeal.

The Trevetts and Ms. Walker own adjacent parcels of real property in Key West. Their properties are separated by a fence and brick wall (collectively, “the fence”) that has existed in the same location since the late 1980s, but encroaches several feet onto the Trevetts’ property. In December 2007, the Trevetts filed a claim for ejectment, seeking to obtain possession of the strip of land between the fence and the legal boundary line of their property. In response, Ms. Walker filed an answer and raised several affirmative defenses, including laches and boundary by acquiescence. Ms. Walker also filed a counterclaim, seeking to quiet title based, in part, on boundary by acquiescence.

The trial court conducted an evidentiary hearing on the parties’ claims. As demonstrated by the evidence, the relevant collective history of the properties is as follows. Ms. Walker’s property has been in her family for over seventy years. Prior to 1938, the fence was erected between the two properties, and since 1938, Ms. Walker’s property has been used as a commercial parking lot. Prior to the Trevetts purchasing their property on December 17, 1986, Ms. Walker’s property was owned by her parents, Arthur and Gladys Mulberger. Two days after the Trevetts purchased their property, they obtained a survey prepared by Joe M. Trice, which showed that the fence encroached onto the Trevetts’ property by approximately four feet (“Trice survey”). Thereafter, on December 23, 1986, the Trevetts recorded their deed, with no change in the legal description from the deed filed by their predecessor-in-interest. Although the Trevetts were aware of the encroachment, they installed a planter and planted approximately twenty palm trees running along their side of the fence, and installed brick pavers and underground lighting abutting the palm trees. Sometime later, after a storm knocked down a part of the fence, the Trevetts put the fence back up in the same location.

After Mr. Mulberger’s death in March 1987, the property was placed into a trust managed by Ms. Walker and Mrs. Mulber-ger (“Trust”). Thereafter, in November 1987, the Trevetts hired Frederick Hilde-brandt to resurvey their property (“Hilde-brandt survey”). This survey indicated the fence encroached 3.7 feet onto the Trevetts’ property, and depicted the installation of the planter and pavers. In 1995, the commercial parking lot, which was then owned by the Trust, was resurfaced up to the fence line without any objection from the Trevetts.

Following Mrs. Mulberger’s death in April of 2001, the Trust deeded the property to Ms. Walker on November 27, 2001. Ms. Walker never had her property surveyed, and she was unaware of any surveys prepared by any predecessor-in-interest.

On December 4, 2001, just a few days after the Trust deeded the property to Ms. Walker, the Trevetts, through counsel, sent a letter to Ms. Walker, informing her of the Trice survey, and indicating they wanted to move the fence to the property line. Prior to this letter, Ms. Walker and the Trevetts did not have any dispute, agreement, or other communication regarding the boundary line. After the Tre-vetts sent the letter to Ms. Walker, the Trevetts took no further action regarding the boundary line or location of the fence until they filed their ejectment claim on December 11, 2007. Further, there is no evidence of any dispute or agreement between the parties’ predecessors-in-interest regarding the boundary line or fence.

Following the bench trial, the trial court entered an amended final judgment, denying the Trevetts’ claim for ejectment, finding Ms. Walker established the affirmative defense of laches by clear and positive evidence, but failed to establish boundary by acquiescence. The trial court also denied Ms. Walker’s counterclaim to quiet title, finding that she did not establish boundary by acquiescence. The trial court concluded that the current location of the fence, as set forth in the Hildebrandt survey, delineates the boundary line between the parties’ properties. The Trevetts’ appeal and Ms. Walker’s cross-appeal followed.

On appeal, the Trevetts contend the trial court erred by finding that Ms. Walker established the affirmative defense of lach-es by clear and positive evidence. We disagree, and therefore, affirm the trial court’s denial of the Trevetts’ ejectment claim, and the trial court’s finding that the location of the fence is the boundary line between the parties’ properties.

In Van Meter v. Kelsey, 91 So.2d 327, 330-31 (Fla.1956), the Florida Supreme Court set forth the following necessary elements to establish the affirmative defense of laches: (1) “there must be conduct on the part of the defendant, or on the part of one under whom he claims, giving rise to the situation of which complaint is made”; (2) “the plaintiff, having had knowledge or notice of the defendants’ conduct, and having been afforded the opportunity to institute suit, is guilty of not asserting his rights by suit”; (3) “lack of knowledge on the part of the defendant that plaintiff will assert the right on which he bases his suit”; and (4) “injury or prejudice to the defendant in event relief is accorded to the plaintiff, or in event the suit is held not to be barred.” As the Trevetts do not dispute that Ms. Walker established the first two elements, we will limit our analysis to the third and fourth elements.

As to the third element, the Trevetts contend the trial court erred by finding that Ms. Walker established by clear and positive evidence that she lacked knowledge that the Trevetts would assert their right to possession of the disputed strip of land. Relying on Van Meter, the Trevetts argue that, by recording them deed on December 23, 1986, Ms. Walker had record notice of the Trevetts’ claim to ownership and ultimate possession of the entire property described in their deed, including the disputed stoip of land. Under the circumstances of this case, we disagree.

In July 1954, P.W. Van Meter (“Van Meter”) instituted an action against Edward L. Kelsey and his wife (“the defendants”) to quiet title to a strip of land approximately 413 feet wide. The evidence showed that in 1913, Van Meter entered onto the NE 1/4 of Section 17, and Edward Kelsey’s father, Eugene Kelsey (“Kelsey”), entered onto the SE 1/4 of Section 17, for the purpose of homesteading the lands. Van Meter’s and Kelsey’s entries were made pursuant to the survey of 1870, and at that time, the lands were public domain. Two years later, in 1915, Van Meter constructed a fence running along the southern boundary of his property and the north side of Kelsey’s property. Shortly thereafter, Kelsey constructed a fence running along the western boundary of his property, and with Van Meter’s consent, attached his fence to the southwest corner of Van Meter’s fence. In 1917, the United States resurveyed Section 17, which resulted in moving the boundary of Section 17 east and south, and in the loss of acreage to both the SE 1/4 and NE 1/4 of Section 17. After the boundaries were changed, Van Meter did not move the fence, and instead, allowed Kelsey to use the lands. Thereafter, in order to compensate Van Meter and Kelsey for their loss of acreage, they received patents from the United States — Van Meter in 1923 and 1926, and Kelsey in 1923 — for additional lands not included in the lands they originally entered in 1913.

Van Meter established title to the lands by introducing the patents issued by the United States and a quitclaim deed recorded in 1952 from Sippie M. Moore, who had obtained a tax deed in 1941 from the State of Florida as to that land. The defendants claimed title to the property pursuant to a quitclaim deed recorded in 1954 from Kelsey’s heirs to the defendants, following Kelsey’s death in 1951, which included the disputed land. The defendants argued that prior to his death, Kelsey had obtained title to the disputed strip of land by adverse possession. The defendants further argued Van Meter is barred from obtaining the relief he sought based on laches.

The chancellor found that the defendants did not establish title based on adverse possession by Kelsey. However, the chancellor granted relief in favor of the defendants, finding “(1) that the fence constructed by [Van Meter] in 1915 had been accepted as the true boundary between the lands by acquiescence of the parties and (2) that [Van Meter] was barred by lach-es.” Id. at 330. Therefore, the chancellor found the defendants were the owners of the disputed lands.

The Florida Supreme Court agreed with the chancellor’s finding that the defendants failed to establish title by adverse possession. The Court, however, disagreed with the chancellor’s finding as to boundary by acquiescence, stating:

[H]ere, there was a question of correctness of the survey. In the case before us Kelsey signed a petition to the United States offering to cooperate in the resurveying of Section 17 and indicating that there was question about the boundary lines under the 1870 survey. [Van Meter] testified that it was agreed between him and Kelsey that if the new survey moved his line south Kelsey would move south also. There is nothing in the record to indicate that the fence in question was agreed upon as the boundary between the two properties. Any recognition that it was such a boundary appears to have been conditioned on the results of the survey of 1917, made not before, but after the fence was erected. The only evidence to show that the fence was regarded as the boundary between the properties was the existence of the fence itself. This is not sufficient.

Id.

Next, the Florida Supreme Court addressed whether the chancellor erred by finding the relief sought by Van Meter was barred by the affirmative defense of lach-es. In rejecting the chancellor’s finding, the Court concluded that the defendants failed to establish any of the elements of laches, and, therefore, ordered that judgment be entered in favor of Van Meter. Specifically, as to the third element — lack of knowledge on the part of the defendants that Van Meter will assert the right on which .he bases his suit — the Florida Supreme Court concluded:

It is true that [Van Meter] did not take possession of the lands in question at any time. He explains this by testifying that he had given permission to Kelsey to use the lands. However, insofar as the defendant, Edward W. Kelsey, and his wife are concerned it is pertinent to note that [Van Meter] had recorded deeds from Sippie M. Moore to [Van Meter] and his wife, to the specific lands in question in the year 1952, two years before the defendants received the deed under which they claim. The recording of these deeds is notice to defendants that [Van Meter] was claiming an interest in said lands.

Id. at 331 (emphasis added).

We conclude that the Trevetts’ reliance on the above emphasized language in Van Meter is misplaced as the facts in Van Meter differ greatly from the circumstances in the instant case. The Trevetts argue that the recording of their deed put Ms. Walker on notice that they will claim an interest in the property, and, therefore, the trial court erred by finding that the Ms. Walker established the third element of laches. However, we find that the facts in the instant case and in Van Meter are distinguishable.

In the instant case, it is undisputed that Ms. Walker obtained title to her property approximately fifteen years after the Tre-vetts recorded their deed in 1986. However, as Ms. Walker’s property has been in her family for over seventy years and the property was merely deeded to her following her parents’ deaths, there is no indication that Ms. Walker examined either the Trevetts’ deed or the deeds of her predecessors-in-interest prior to taking title. Further, she first learned of the encroachment approximately ten days after she obtained title when the Trevetts, through counsel, objected to the location of the fence. Further, after notifying Ms. Walker of the encroachment in 2001, the Tre-vetts took no further action until 2007 when they filed suit against Ms. Walker. Therefore, not only did the Trevetts treat the fence as the boundary line between the properties for the fifteen years prior to Ms. Walker taking title, the Trevetts continued to treat the fence as the boundary line between 2001 and 2007. For example, when the fence was partially knocked down during a storm, the Trevetts erected the fence in the same exact location, rather than taking the opportunity to relocate the fence to the true boundary line.

Even prior to Ms. Walker taking title to her parents’ property, the Trevetts’ actions and inaction were not consistent with individuals who would assert rights contained in their recorded deed. Within a few days of closing on their property in 1986, the Trevetts obtained the Trice survey, indicating that the fence encroached onto their property. Instead of addressing the encroachment, as was done in Van Meter.; the Trevetts did not notify the Mul-bergers of the encroachment. Rather, the Trevetts treated the fence as the boundary between the two properties by installing a planter and planting approximately twenty palm trees running along their side of the fence, and installing brick pavers and underground lighting abutting the palm trees. Further, in 1995, almost ten years after the Trevetts recorded their deed, they did not object when the commercial parking lot, which was then owned by the Trust, was being resurfaced up to the fence line. Therefore, under these circumstances, we conclude that the Trevetts’ reliance on Van Meter is misplaced, and the trial court correctly determined that Ms. Walker established the third element of laches.

In finding that the Ms. Walker established the fourth element of laches— injury or prejudice to Ms. Walker if relief is accorded to the Trevetts or if the suit is determined not to be barred — the trial court reasoned, in part:

The fact that [Ms. Walker’s] ability to effectively defend against [the Trevetts’] claim has been greatly impaired by virtue of the fact that [Ms. Walker’s] parents passed away and other potential witnesses having knowledge about the circumstances surrounding the construction and positioning of the chain link fence have disappeared during the 21 year period of delay brought about by [the Trevetts’] failure to act satisfies the fourth element.

We agree with the trial court’s analysis, and, therefore, conclude that the trial court correctly determined that Ms. Walker established the fourth element of laches. Accordingly, we affirm the trial court’s order finding that the Trevetts’ claim for ejectment is barred by the affirmative defense of laches, and determining that the current location of the fence is the boundary line between the parties’ properties.

As we have affirmed the trial court’s determination that the Trevetts’ ejectment claim is barred by laches, it is unnecessary to address Ms. Walker’s cross-appeal.

Affirmed.


author: TAYLOR, J.

text:
    Markinsey METAYER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5295.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Rehearing Denied July 3, 2012.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

This appeal arises from a triple shooting in Broward County, which left one person dead and two wounded. Markinsey Me-tayer appeals his conviction for first degree murder. Of the several issues he raises for reversal, we find that only one has merit. We hold that the trial court abused its discretion in admitting evidence of a firearm and ammunition found in appellant’s mother’s house six months after the shooting incident, because there was no evidence linking these items to the crime.

The tragic shooting incident occurred in a Broward County home in the early morning hours of July 22, 2007. Following the incident, appellant and co-defendant Patrick Young were charged by indictment with Murder in the First Degree of Adam Jacobs (Count I), Attempted Murder in the First Degree of Jason Operle (Count II), Attempted Murder in the First Degree of Gregory Hunt (Count III), Armed Robbery of Adam Jacobs (Count IV), and Armed Robbery of Jason Operle (Count V).

At trial, Operle testified that late in the evening on July 21, 2007, he and his best friend, Jacobs, went out and had a few drinks. By around 5:80 a.m. on July 22, 2007, they returned to the house in Coral Springs where Jacobs was staying. They drank more alcohol and smoked a cigar rolled with marijuana and cocaine.

That morning, Jacobs received several calls on his cell phone from his friend, co-defendant Young. Young told Jacobs that he was going to stop by the house. Operle was friendly with Young. Operle testified that both Young and Jacobs were drug dealers. When Young arrived at the house, appellant was with him. Operle had never seen appellant before.

They all sat down to eat breakfast at a table in the living room area. Operle laid down on a couch in the living room after finishing his meal. After Young and Jacobs completed a marijuana transaction, Young asked Jacobs about his gun. Jacobs then asked Young if he “was carrying.” Young answered in the affirmative and took his gun out of his right back pocket. Meanwhile, Jacobs retrieved his gun from a black bag and put it on the table. Young picked up Jacobs’s gun, comparing it to his gun.

As Jacobs was seated at the table eating, Young stood up, put one of the guns back down, and then shot Jacobs in the chest. Jacobs fell to the ground. Operle described Jacobs as “gasping for air.” Op-erle did not hear Jacobs say any words, but heard noise.

Operle screamed and tried to jump off the couch. Young walked over toward Op-erle and shot him in the front shoulder, causing Operle to fall off the side of the couch. Young pointed a gun in Operle’s face and pulled the trigger, but the gun jammed. Young told Operle to “get on the ground.” When Operle got on the ground, Young kicked him in the face. Young then shot Operle in the back, behind his right shoulder. Operle testified that he went into convulsions, had a seizure, and lost consciousness. Operle estimated that he was unconscious for about 15 seconds, but was not really sure.

Operle heard Young tell appellant to finish Jacobs off. According to Operle’s testimony, appellant got up, grabbed one of the guns, stood over Jacobs, and shot him in the face. Jacobs died at the scene. It was later determined that Jacobs was shot twice with his own .45 caliber pistol.

As Operle was playing dead, Young took Operle’s sneakers, wallet, and watch. Op-erle then heard Young and appellant going through the rest of the house. Operle eventually heard more gunshots in the house.

Meanwhile, Gregory Hunt was sleeping in the back bedroom of the home. He was awakened by several loud hand claps. Appellant opened the bedroom door and stuck his face inside. After Hunt indicated that the room was occupied, appellant shut the door. Shortly thereafter, Hunt heard a gunshot, the bedroom door flew open, and Young came into the bedroom with a gun. Young shot Hunt in the back of his shoulder. Young pulled the trigger again, but the gun jammed and the cartridge was ejected onto the mattress. Young demanded Hunt’s money, but Hunt did not have any. Young then shot Hunt again just above the hip. Hunt passed out and the next thing he remembered was hearing the front door close.

Young and appellant walked past Operle as they went out the front door. Operle never saw Young or appellant take any money or drugs. As soon as Operle heard the car leave, he called 911. Operle and Hunt were both taken to the hospital.

Between 7:00 a.m. and 8:00 a.m. on the morning of the shootings, Young and appellant arrived at the Miami home of Young’s girlfriend. Young was carrying a black bag. Young’s girlfriend later saw that the bag contained drugs, money, and a gun. She did not see any blood on Young’s body or clothing. Appellant left the house about five minutes later. Young put the money and drugs in a safe in his girlfriend’s bedroom closet. The following day, Young was arrested and the police recovered guns, drugs, and money from Young’s girlfriend’s house.

Appellant was arrested about six months later at his mother’s house in Miami. The police found a .40 caliber Smith & Wesson Glock pistol and two .45 caliber magazines in the house. Over appellant’s objection that these items were not linked to the crime, the trial court admitted testimony and photographs regarding these items.

One of the guns recovered from Young’s girlfriend’s house, a .40 caliber S & W Taurus Millennium model, was examined and test fired by Alan Greenspan, a firearms examiner. Mr. Greenspan explained that although a 10 millimeter cartridge is proper for a .40 caliber weapon, it is possible to use 9 millimeter ammunition. However, when 9 millimeter ammunition is used, “sometimes it will extract and eject and sometimes it won’t.” Greenspan testified that the casings found on the couch and in the dining room at the crime scene were fired from the above-referenced .40 caliber Taurus Millennium model. However, there were two spent projectiles recovered from Operle’s body at the hospital; they were the types of bullets that most commonly would be loaded in a 9 millimeter casing. There were insufficient markings for Greenspan to determine whether the .40 caliber Taurus Millennium gun fired those bullets. Greenspan testified that it was possible those bullets could have been fired from any .40 caliber weapon.

In October 2008, Jacobs’s .45 caliber Taurus Millennium pro-model, PT 145 pistol was recovered from the North Miami Police Department. After test firing that pistol, Mr. Greenspan concluded that all the .45 casings and projectiles found at the scene were fired from this gun.

After the state rested its case, appellant testified in his own defense. Appellant denied ever shooting Jacobs, and claimed that it was Young who fired both shots at Jacobs. Appellant stated that he was shocked when Young opened fire. Appellant claimed that after Young shot Jacobs a second time, Young then asked appellant, “Is he finished, is he finished?”

The jury found appellant guilty as charged on Count I, first-degree murder of Adam Jacobs, but not guilty on all remaining counts. As to Count I, the jury was given special verdict interrogatories and specifically found that appellant actually possessed and discharged a firearm, inflicting death upon Adam Jacobs.

On appeal, appellant maintains that the trial court abused its discretion in admitting into evidence two .45 magazines and a .40 caliber Glock pistol which were found in appellant’s mother’s house. Appellant argues that there was no evidence at trial which linked the pistol and magazines to the crimes charged. We agree with appellant’s argument.

A trial court’s decision on the admissibility of evidence is reviewed under an abuse of discretion standard. Hudson v. State, 992 So.2d 96, 107 (Fla.2008). That discretion, however, is limited by the rules of evidence. Id.

Relevant evidence is evidence tending to prove or disprove a material fact. § 90.401, Fla. Stat. (2009). Generally, any evidence relevant to prove a fact at issue is admissible unless precluded by a specific rule of exclusion. See State v. Williams, 992 So.2d 330, 333 (Fla. 3d DCA 2008); see also § 90.402, Fla. Stat. (2009). However, even if evidence is relevant, it is inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2009).

It is well-settled that in order for evidence of a firearm to be admissible as relevant in a criminal trial, the state must show a sufficient link between the weapon and the crime. See Agatheas v. State, 77 So.3d 1232, 1236-39 (Fla.2011) (admission of gun recovered from a backpack that defendant had in his possession five years after the murder was erroneous because it was not relevant to either the crime or corroborating a witness’s testimony; it was undisputed that the gun was not the murder weapon and had no connection to the charged crime); Jackson v. State, 25 So.3d 518, 528 (Fla.2009) (testimony regarding a “little pistol” defendant carried was inadmissible where nothing in the record linked the “little pistol” to the gun used in the crimes charged).

A gun different than the one used in a crime is not relevant to prove that the crime occurred. Downs v. State, 65 So.3d 594, 596 (Fla. 4th DCA 2011). Even if evidence of a defendant’s possession of a different gun is relevant to a material fact in issue, the court must perform the “critical balancing analysis” under section 90.403. Agatheas, 77 So.3d at 1240. Generally, any marginal relevance in this type of testimony is substantially outweighed by the danger of unfair prejudice under section 90.403. Downs, 65 So.3d at 596.

Accordingly, where the evidence at trial does not link a weapon seized from the defendant to the crime charged, the weapon is inadmissible. See, e.g., O’Connor v. State, 835 So.2d 1226, 1231 (Fla. 4th DCA 2003) (photographs of shotgun and bullet proof vest were not relevant to the crime charged and were improperly admitted into evidence); Rigdon v. State, 621 So.2d 475, 478 (Fla. 4th DCA 1993) (error to admit a semi-automatic weapon that had no connection to charged offense); Huhn v. State, 511 So.2d 583, 589 (Fla. 4th DCA 1987) (“Here, there is nothing unlawful about Huhn’s ownership of the gun, and nothing to connect the particular gun to the crimes for which Huhn was on trial. We conclude that the gun was not relevant to this ease.”); see also Zama v. State, 54 So.3d 1075, 1078 (Fla. 4th DCA 2011) (error for the state to present evidence that defendant possessed a bullet-proof vest unconnected to crime); Jones v. State, 32 So.3d 706, 712-13 (Fla. 4th DCA 2010) (error to admit gun-cleaning kit where nothing was shown to connect it to the crimes charged; its admission served only to suggest that at some point the defendant owned a gun).

Here, the state failed to show a sufficient link between the shootings and the firearm and ammunition found in appellant’s mother’s home. The only marginal relevance of the fact that a .40 caliber weapon was found at appellant’s mother’s home is that the state’s firearm expert testified that he could not determine whether the two projectiles that were recovered from Operle’s body were fired from Young’s .40 caliber Taurus Millennium. In other words, it was possible those projectiles could have been fired from a different .40 caliber weapon. The prosecutor thus argued to the jury that it was possible there was a third weapon at the scene.

However, the prosecutor’s argument regarding a possible “third gun” was, at best, pure speculation unsupported by any evidence. In fact, the prosecutor’s argument was inconsistent with the other evidence in the case, including Operle’s eyewitness testimony-that he saw two guns, and the evidence that Young’s .40 caliber Taurus weapon was definitely fired at the scene. ' The evidence reflected that all of the casings recovered at the crime scene either came from Jacobs’s .45 caliber pistol or co-defendant Young’s .40 caliber Taurus Millennium. There were no casings at the scene that came from any other firearm. Moreover, according to Operle’s testimony, co-defendant Young was handling both his own firearm and Jacobs’s firearm during the incident. Operle did not testify that he saw a third firearm or that appellant ever handed a different firearm to the co-defendant. Under the circumstances of this case, the mere fact that the gun expert could not conclusively determine that the bullets found in Operle’s body were fired from Young’s .40 caliber weapon did not, without more, permit the prosecution to introduce evidence of any .40 caliber weapon that appellant may have owned.

The remote theoretical possibility that some other .40 caliber weapon besides Young’s .40 caliber Taurus could have been responsible for the bullets found in Op-erle’s body makes evidence of the .40 caliber weapon found in appellant’s mother’s home marginally relevant. But the marginal relevance of this weapon — which the state never actually linked to the scene of the crime — is substantially outweighed by the danger of unfair prejudice and confusion of the issues. There is a danger that such evidence would show the bad character or propensity of the accused. See Agatheas, 77 So.3d at 1239. Furthermore, we do not see any relevance to the .45 caliber ammunition found at appellant’s mother’s home, as there was nothing that linked this ammunition to the crime.

This error is nevertheless subject to a harmless error analysis. “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

At the outset of our harmless error analysis, we note that irrelevant collateral crimes evidence is presumed harmful. See Agatheas, 77 So.3d at 1240. Moreover, the state’s key witness, Operle, was under the influence of drugs and alcohol at the time of the shootings, had been shot and was unconscious for a few seconds, and was trying to play dead at the time he allegedly saw appellant fire the second shot at Jacobs. Furthermore, appellant denied ever shooting Jacobs or assisting the co-defendant. On this record, we cannot say that the error was harmless. We are thus compelled to reverse appellant’s conviction and remand for a new trial.

Reversed and Remanded.

CIKLIN and GERBER, JJ., concur.

      . Without further comment, we conclude that the trial court properly denied appellant's motion for judgment of acquittal and did not abuse its discretion in denying his motions for mistrial.


text:
    Justin E. MAYS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4255.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Rehearing Denied July 3, 2012.
    Justin E. Mays, Immokalee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Justin Mays appeals the summary denial of his motion for postconviction relief which was filed pursuant to Florida Rule of Criminal Procedure 3.850. Though Mays raised several issues, we reverse and remand for review of one point associated with the calculation of his scoresheet.

Mays’ scoresheet reflects fourteen points for a prior offense of burglary of a dwelling. Within his sworn motion Mays alleges that the dwelling was unoccupied, and therefore it is a. level four offense permitting the scoring of only 2.4 points. See § 921.0023, Fla. Stat. (2006).

This claim was not addressed below or in response to this court’s order. Our review of the record suggests that the calculations are significant because Mays pled to the lowest permissible prison sentence. See generally, Brooks v. State, 969 So.2d 238 (Fla.2007); State v. Anderson, 905 So.2d 111 (Fla.2005); Johnson v. State, 976 So.2d 698 (Fla. 2d DCA 2008). We therefore reverse and remand on this issue only. On remand, the court may attach portions of the record to conclusively refute this ground or it may conduct an evidentiary hearing.

We affirm without discussion the trial court’s denial of Mays’ remaining claims.

Affirmed in part, Reversed in part, and Remanded.

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


text:
    FEI XU, Appellant, v. NING ZHANG, Appellee.
    No. 4D11-2336.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Fei Zu, South Dakota, pro se.
    Basil Dalack, Tequesta, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Frederick WHYMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2459.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.
    Frederick Whyms, in proper person.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed without prejudice to proceedings under Florida Rule of Criminal Procedure 3.850. See Johnson v. State, 60 So.3d 1045 (Fla.2011).


text:
    Jermaine THOMPSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D12-1075.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.
    Jermaine Thompson, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Jermaine Thompson petitions this Court for a writ of habeas corpus in which he alleges ineffective assistance of appellate counsel. We deny the petition as successive because Thompson raises an issue that he previously raised on direct appeal and this Court determined on the merits in Thompson v. State, 36 So.3d 109 (Fla. 3d DCA 2010). See Francois v. Wainwright, 470 So.2d 685 (Fla.1985); Hernandez v. State, 990 So.2d 1116 (Fla. 3d DCA 2008).

Petition denied.


text:
    Terence WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-946.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.
    Terence Walker, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and CORTIÑAS and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Smith v. State, 79 So.3d 127 (Fla. 3d DCA 2012); Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011) (citing State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011) [review granted, 71 So.3d 117 (Fla.2011) ], and acknowledging “uncertainty caused by Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011)” but reaffirming its view that section 893.13 is constitutional).