author: GROSS, J.

text:
    Michael L. JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D10-949.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GROSS, J.

In this case, we write to address two issues-whether the prosecutor’s closing argument improperly made a case for the credibility of a state witness and whether the testimony of two detectives about the reluctance of witnesses in the neighborhood of the shooting to be seen cooperating with the police was irrelevant and unduly prejudicial. Finding no error, we affirm.

I. Facts

A grand jury indicted Michael L. Jackson Jr. for first-degree murder with a firearm. The charge arose from eighteen-year-old Jackson’s shooting of a drug dealer, Jenoi Hand, on a street in West Palm Beach. The state’s chief witness was Ma-tia “Coco” Dingle, Hand’s lookout. Though other people were present at the time of the shooting, Dingle was the only eyewitness to identify Jackson as the shooter. The state’s case turned on her credibility. Jackson’s primary attack against Dingle’s credibility was that she was not there, so her testimony was made-up. Following a jury trial, Jackson was convicted and sentenced to life in prison.

A. Dingle’s Testimony

Dingle, in her mid-twenties, was a user of powder cocaine. When she was high, she was alert, energetic, and quiet. Dingle’s criminal history included possession of cocaine with intent to sell, giving a false name to a police officer, and retail theft. Hand, the victim, was her friend. They had been friends for over five or six years and Hand treated her “like [she] was somebody.” Hand sold crack cocaine. Testimony established that Hand’s territory, as recognized on the streets, was Sixth Street and Sapodilla Avenue. Dingle worked for Hand as a lookout, watching for police and potential robbers. For this, Hand paid her $50 to $80 a day, but did not compensate her with drugs.

On July 29, 2009, the night of the shooting, Dingle used powder cocaine and served as Hand’s lookout. Dingle and Hand hung out all that day and night on Sixth Street. Hand did not have his gun. A little after midnight, Shaniece “Shay Shay” Gaskin and Nakera “Kera” Dawson arrived in Dawson’s car. At some point, Hand and Dawson were inside her car— Hand was in the backseat, Dawson sitting on his lap — while Gaskin was outside riding around on Hand’s bicycle. Dingle was at the intersection of Sixth Street and Rosemary Avenue, down the street from the intersection of Sixth Street and Sapo-dilla Avenue. She was behind a taxicab stand snorting cocaine. As Hand’s lookout, Dingle’s attention was focused solely on Hand. The area was lit by street lamps. Dingle observed Hand conduct a drug sale. There were no problems and the customer left.

After the sale, Hand was in the middle of the road near Dawson’s car. Then appellant Michael Jackson, someone Dingle knew, “ran through the cut,” the area of land between two houses that were facing Sixth Street. Hand yelled out to Jackson, asking whether he was running from police. Jackson did not respond, but he approached Hand. They started talking to each other.

Bent over and snorting a line of cocaine, Dingle heard gun shots from the direction where Hand and Jackson were speaking. The shots caused Dingle to look up and she saw Hand on the ground. She rushed toward him, but her testimony was unclear on how close she got to Hand. Regardless, Hand was still alive.

Meanwhile, Jackson had run off toward the cut. He reloaded his gun and came back to where Hand was lying face up on the street. By that time, thinking that Jackson had seen her, Dingle had dived under a car and hid. As she lay under the car, she watched Jackson’s feet as Jackson shot Hand again. Jackson fled through the cut.

Scared, Dingle also ran away, in the direction of a club. She came back to the scene, however, after she heard an ambulance. Because she was scared and did not know what to do, Dingle acted like she had just arrived. A lot of people from the neighborhood were there. While Dingle was at the scene, television reporters showed up. Dingle told one reporter that Hand was her brother, people would miss him, she had just arrived on scene, and nobody knew anything. At trial, Dingle explained that she told the reporter something other than the truth because she was scared and, also, because she did not want to be seen on television discussing what happened.

Dingle talked with police at the scene, but again tried to act as if she had just arrived. Dingle did not want to be seen talking to the police in front of people from the neighborhood. Asked why, she explained: “Because when you do, people around the neighborhood call you the police, the snitch, all type of stuff.” Dingle was willing to talk to the police, but not in public. She, Dawson, and Gaskin walked down the street, where the police picked them up. They were transported to the police station. Once at the station, Dingle talked to the police.

Later, on August 15, Dingle spoke with Detective Dennis Hardiman, one of the investigators, in an interview room at the police station. At that time, Dingle told the detective everything she knew, including things she withheld the first time she spoke with police. She explained: “Because when I got with him, I felt, like, open with him, you know? So I just opened up to him and I just told him everything I knew.” Dingle said she did not feel open with the other police officers because they wanted to speak to her in front of other people. During the interview, Detective Hardiman conducted a photographic lineup; Dingle identified Jackson. She identified him again in court.

During the cross-examination of Dingle, Jackson’s attorney pressed Dingle on her previous statements denying that she was at the scene at the time of the shooting.

After rehashing her testimony about the night of July 29, Jackson’s attorney questioned Dingle on the statements she made at the police station that night. Dingle, Dawson, and Gaskin were put in a room at the police department where they were secretly recorded. Defense counsel asked Dingle whether she remembered making certain statements, to which Dingle responded that she had been high and, repeatedly, that she did not remember anything she said. Defense counsel played an audio recording of the conversation in an attempt to have Dingle identify her voice on it and, also, to refresh her recollection of what she said. Dingle was generally resistant to listening to the tape.

Dingle admitted telling a detective she was not there when the shooting occurred, something which was apparently captured on the recording. Dingle explained in court that, at that point, she did not want to get involved. Defense counsel played a portion of the tape in which it appears Dingle was asking the other women what the shooter was wearing. After some prodding, Dingle explained that she asked these questions to make it appear as if she had not been there, as she did not want to get involved. As cross-examination continued, Dingle became increasingly upset. Eventually, she asked the trial court whether she still had to answer questions.

Later, an issue arose as to a video-and-audio recording of the conversation between Dingle, Gaskin, and Dawson at the police station. While the parties previously thought the DVD contained only the same content as the audio recording Jackson’s attorney had earlier used, they later discovered that the DVD contained more than the audio recording. The trial court ordered the state to produce Dingle the day after she first testified so Jackson’s attorney would have an opportunity for full cross-examination.

The further cross-examination was contentious. Dingle resisted answering some of the questions. She complained that the defense attorney was “messing” with her. As she did the day before, Dingle maintained that she could not remember what she had said the night of the shooting. Defense counsel then played the DVD and pressed Dingle about what she said on the recording and challenged her testimony that she had witnessed the shooting.

B. Gaskin’s Testimony

Gaskin also testified, and her testimony largely corroborated Dingle’s. While she roughly described the shooter, she did not identify him. When asked if she saw Dingle at the scene when the shooting happened, Gaskin answered, “I can’t tell you that. I was shocked. I really wasn’t paying attention to nothing.” Gaskin repeated this on cross-examination. She said Dingle left the area of the shooting shortly after Gaskin and Dawson arrived, but she could not remember if Dingle ever returned because she was not paying attention. The first time she remembered seeing Dingle again was after the police arrived.

Gaskin stayed to talk to the police after the shooting, although she did not want to cooperate with them. Like Dingle, Gaskin did not want to be involved. She had the police meet her somewhere else: “Because I didn’t want nobody else to see me get in the car, the police car.” She, Dingle, and Dawson eventually went to the station. There, Gaskin described to Dingle in detail what she had seen. Dingle told her that she wished she had stayed at the scene, but she was suffering a headache.

C. Law Enforcement Testimony

The two detectives who investigated the shooting were Adam Myers and his partner Dennis Hardiman. On appeal, Jackson challenges their testimony on the general reluctance of people in the neighborhood to talk with law enforcement.

Detective Myers provided the following testimony:

[By the State:]
Q. Okay. And on scene, did you talk to any witnesses?
A. Yes, I did.
Q. Did you talk to a Shaniece Gaskin or Shay Shay?
A. Yes.
Q. Did you talk to a Nakera Dawson?
A. Yes, I did.
Q. Who goes by Kera?
A. Yes.
Q. And could you tell us, as far as any other witnesses, would you describe whether they were cooperative or uncooperative?
A. They were very—
[DEFENSE COUNSEL]: Objection, relevancy.
THE COURT: Overruled.
THE WITNESS: They were very reluctant to cooperate with us.
BY [THE PROSECUTOR]:
Q. In fact, when you spoke to the women, were they willing to speak to you at length or give a taped statement at the scene?
A. No, they weren’t.
Q. And how did you eventually — or did you eventually get a chance to speak to them?
A. Well, obviously, we understood that they didn’t want to be seen speaking to us in view of the public, so we asked them if—
[DEFENSE COUNSEL]: Judge, I object to this, it’s relevance and hearsay.
THE COURT: Overruled.
THE WITNESS: So we asked them if they would come to the police station with us where we could speak in private.
BY [THE PROSECUTOR]:
Q. Were they willing to get into the police cars and come with you?
A. No, they were still reluctant to do so, especially if it was a marked car.
Q. Okay. And in your 11 years of experience with the West Palm Beach Police Department, why is it a problem for witnesses to get in a police car? [DEFENSE COUNSEL]: Objection, speculation, improper opinion, hearsay.
THE COURT: Overruled.
BY [THE PROSECUTOR]:
Q. Go ahead.
A. In my experience, it’s people don’t want to be known as a rat or snitching on other persons, and it’s a common problem we encounter.
Q. Okay. Did they eventually come to the police station?
A. Yes, they did.

Similarly, Jackson challenges the following testimony of Detective Hardiman:

Q.... Are you — you said you responded to homicides in this area before?
A. Yes, sir.
Q. Do you get to know the community in the area that you work, you talk to people?
A. Yes.
Q. You try to find witnesses and interview witnesses in these types of cases?
A. Yes.
Q. In your experience in homicides and the area of 6th and Sapodilla, when you tried to talk to witnesses, how do they respond to you, based on your experience working there?
[DEFENSE COUNSEL]: Objection, irrelevant, improper opinion, bolstering.
THE COURT: Overruled.
THE WITNESS: I would say, most of time, they were reluctant.
BY [THE PROSECUTOR]:
Q. Why do you say that, why are they reluctant?
[DEFENSE COUNSEL]: Objection to speculation.
THE COURT: Sustained.
BY [THE PROSECUTOR]:
Q. When you say, reluctant, do they want to talk to you?
A. No.

D. Closing Arguments

One of Jackson’s arguments on appeal is that the prosecutor improperly argued that Dingle was credible during her rebuttal argument. Before closing arguments began, the trial court instructed the jury that one of the things the jurors should consider in determining the reliability of witness testimony was whether the witness was “honest and straightforward in answering the attorneys’ questions.” Fla. Std. Jury Instr. (Crim.) 3.9.

In her closing argument, the prosecutor spent some time talking about whether Dingle was credible given her inconsistent statements, noting the trial court’s instruction above. The prosecutor argued that Dingle “answered those questions over and over and over and over again, and then after many hours of questions ... [s]he shut down, she had enough ... but up to that point for many, many hours, she answered every single question honestly and straightforward.” As an indication that Dingle answered questions in a straightforward manner, the prosecutor pointed out that Dingle even admitted to having lied and to having snorted cocaine. The prosecutor later went through the consistent elements of Dingle’s statements and her testimony, and how Dingle’s testimony was consistent with other evidence in the case.

Almost all of Jackson’s closing was devoted to attacking Dingle’s credibility. Jackson’s attorney pointed to inconsistencies within Dingle’s statements and between her testimony and the testimonies from other witnesses to contend that Dingle was not at the scene of the shooting. Defense counsel described Dingle as “a convicted felon. She is a convicted liar. Lied to the police. Lied to the police. She is a convicted thief. She is an ongoing drug addict.... You wouldn’t believe this witness if she were involved in a small claims action, would you?”

The prosecutor focused on Dingle’s credibility in her rebuttal:

So was Cocoa [sic] there? Cocoa [sic] spent a long day of deposition on another day, two days of testimony in front of you, testimony that night, testimony with Detective Hardiman, and she goes over and over and answers hundreds and hundreds of questions, and she is open and honest about each and every—
[DEFENSE COUNSEL]: Objection to the vouching.
THE COURT: Sustained.
[THE PROSECUTOR]: Until she can’t take it anymore and shuts down, and when she shuts down, you watched her, she had enough and that’s when you start getting, I don’t want to know, I don’t want to listen to that, I don’t want to hear it. Up until then she answers everything, answers everything, open and honest, fleeing her life, her life which is an unsophisticated life, an uneducated life, a criminal life.
[DEFENSE COUNSEL]: I object to the vouching, the bolstering, the characterization.
[THE PROSECUTOR]: Comments in evidence, Judge.
THE COURT: I disagree with that. I’ll overrule that objection.
And, later, the defense objected to this snippet of argument:
[Defense counsel] says, why would Cocoa tell you that she was asked about the reward money? Because she was telling the truth. She was asked question after question, she kept telling the truth, that’s why she told it.

II. Closing Argument

In his first issue on appeal, Jackson argues that the prosecutor’s comments in closing argument that Dingle was open, honest, and telling the truth were improper. Jackson contends that the prosecutor improperly bolstered or expressed a personal opinion on Dingle’s credibility.

The control of closing argument is within a trial court’s discretion; thus, a trial court’s rulings on comments made within closing arguments are reviewed for an abuse of discretion. Hooper v. State, 476 So.2d 1253, 1257 (Fla.1985). Likewise, a trial court’s ruling on a motion for mistrial is reviewed for an abuse of discretion, and the court should grant a mistrial only where the error is so prejudicial that it vitiates the entire trial. Cartwright v. State, 885 So.2d 1010, 1013 (Fla. 4th DCA 2004).

Attorneys have wide latitude in arguing to a jury. Breedlove v. State, 413 So.2d 1, 8 (Fla.1982). However, “attorneys must ‘confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.’ ” Hosang v. State, 984 So.2d 671, 672 (Fla. 4th DCA 2008) (quoting Knoizen v. Bruegger, 713 So.2d 1071, 1072 (Fla. 5th DCA 1998)). When evaluating a prosecutor’s comment, the comment “should be examined in the context in which it is made.” Lubin v. State, 963 So.2d 822, 824 (Fla. 4th DCA 2007).

Here, Jackson contends that the prosecutor impermissibly injected her personal opinion into the argument by stating that Dingle, whose credibility was hotly disputed, testified openly, honestly, and truthfully. By this argument, Jackson invokes the rule that “it is improper for an attorney to express a personal opinion as to the credibility of a witness.” Johnson v. State, 801 So.2d 141, 142 (Fla. 4th DCA 2001). But, “an attorney is allowed ... to argue credibility of witnesses or any other relevant issue so long as the argument is based on the evidence.” Miller v. State, 926 So.2d 1243, 1254-55 (Fla.2006) (emphasis added). Improper prosecutorial “vouching” for the- credibility of a witness occurs “where a prosecutor suggests that she has reasons to believe a witness that were not presented to the jury,” or, stated differently, where the prosecutor “implicitly refers to information outside the record.” United States v. Rivas, 493 F.3d 131, 137 (3d Cir.2007).

Contrary to Jackson’s arguments, the prosecutor was not expressing her own opinion on Dingle’s credibility; rather, she was explaining why the jury should believe Dingle was a credible witness based on the evidence. This is clear from the context in which the prosecutor made the comments.

Both the prosecutor and defense counsel offered detailed arguments supporting or challenging Dingle’s credibility. They focused on the consistencies and inconsistencies contained in her various statements, and the consistencies and inconsistencies between those statements and the testimony of other witnesses. Additionally, the prosecutor pointed to Dingle’s admissions about lying to the police and using drugs as indicative of her straightforwardness as a witness. The prosecutor’s comments that Dingle was open, honest, and truthful were permissible because, in context, they were based on the evidence and in specific reference to her testimony. The prosecutor’s language — that Dingle was “open and honest” and “telling the truth” — echoed the language of the standard jury instruction the judge read to the jury, that, in deciding whether Dingle’s testimony was reliable, the jury should consider whether she was “honest and straightforward in answering the attorneys’ questions.” Fla. Std. Jury Instr. (Crim.) 3.9.

On point is Yok v. State, 891 So.2d 602 (Fla. 1st DCA 2005). In closing argument in a sexual battery case, the prosecutor stated “that the victim was ‘honest and straightforward’ while testifying.” Id. at 603. The trial court denied the defendant’s motion for mistrial. Id. The first district found that, when viewed in context, the comment did not constitute improper bolstering. Id. Instead, as in this case, “the prosecutor’s isolated comment simply urged the jury to find the victim honest and straightforward ‘on the state of the evidence’ before it.” Id.

The prosecutor’s argument in this case was not infected with the expression of personal belief that we found improper in State v. Ramos, 579 So.2d 360 (Fla. 4th DCA 1991). There, the prosecutor argued to the jury: “And Susan [witness] testified, I believe she testified totally truthfully to you.” Id. at 362 (emphasis added). Unlike the prosecutor in Ramos, the prosecutor in this case did not argue credibility by injecting into the case her personal belief in Dingle’s credibility.

We close by noting that a prosecutor’s closing argument is not limited to a “flat, robotic recitation[] of ‘just the facts.’” Diaz v. State, 797 So.2d 1286, 1287 (Fla. 4th DCA 2001). To the contrary, a prosecutor may robustly and vigorously argue the truthfulness of a witness whose credibility is under attack. As we wrote in Diaz,

[w]e have great confidence in the common sense of jurors to decide cases on the law and facts without being unduly swayed by the lawyers’ oratory. A prosecutor does not violate her obligation to seek justice by arguing the state’s case with passion and conviction.

Id.

III. Code of Silence Testimony

In his second argument, Jackson contends that the trial court abused its discretion in admitting testimony from Detectives Myers and Hardiman on the general reluctance of residents of the neighborhood in which the shooting occurred to cooperate with law enforcement. Jackson views the testimony as irrelevant and prejudicial expert opinion testimony on the character of the neighborhood.

A trial court’s decision on the relevance of evidence will not be overturned absent an abuse of discretion, though the court’s decision is limited by the rules of evidence. Deville v. State, 917 So.2d 1058, 1059 (Fla. 4th DCA 2006). Three sections of the evidence code provide the framework for evaluating questions of relevance. The general rule is that “[a]ll relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2007). “Relevant evidence is [defined as] evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2007). Section 90.403, Florida Statutes (2007), establishes a limitation on the introduction of relevant evidence: “Relevant evidence 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.”

The “neighborhood code of silence” testimony at issue often arises in prosecutions involving crimes occurring in prison or stemming from gang activity, but also in cases where victims or witnesses are generally reluctant to cooperate with law enforcement. It is relevant on the issue of a witness’s credibility and to explain why witnesses may have given conflicting statements concerning a crime. See United States v. Montes-Diaz, 208 F. App’x 565, 566 (9th Cir.2006) (holding that trial court did not abuse its discretion in admitting testimony on inmate code of silence “to show witness bias and help explain why the government failed to call certain witnesses”); People v. Trujillo, 2002 WL 31474459 (Cal.Ct.App.2002) (unpublished) (holding that expert testimony from a detective “about the reluctance of witnesses [residents of gang neighborhoods] to testify in cases involving gang activity” is relevant to the credibility of a witness); People v. Skinner, 53 P.3d 720, 724 (Colo.Ct.App.2002) (holding that witnesses—the -victim and chief investigator— could offer testimony on an inmate code of silence and that once testified to, the prosecutor could argue the matter since “[s]uch testimony was relevant to explain why the victim and other inmates had given conflicting statements as to who had committed the assault”); Powell v. State, 714 N.E.2d 624, 629 (Ind.1999) (holding that the lead detective’s testimony that it is not unusual for victims or witnesses of crimes to be reluctant to cooperate with police did not improperly vouch for the truthfulness of victim’s testimony).

Code of silence testimony may properly be the subject of expert testimony where a law enforcement agent’s opinion is based on specialized knowledge derived from training or experience and beyond the understanding or experience of the average juror. See § 90.702, Fla. Stat. (2010) (allowing expert testimony on evidence at trial “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue”); United States v. Hankey, 203 F.3d 1160, 1167-69 (9th Cir.2000) (involving the testimony of a law enforcement expert who opined, in part, that “gangs enforce a code of silence among their members”); People v. Martinez, 113 Cal.App.4th 400, 7 Cal.Rptr.3d 49, 59 (2003) (holding that a gang expert could testify on “what it meant to be a ‘rat’ in gang culture” because “it was relevant to help understand discrepancies between some of the witnesses’ statements to the police and their testimony at trial”); Edge v. State, 275 Ga. 311, 567 S.E.2d 1, 3 (2002) (holding that “an expert in the field of gangs and gang codes of behavior,” including the “requirements of members’ obedience, silence, and staunch defense of other gang members, and the punishment meted out to a gang member who violates these requirements,” could testify because “[t]hese were factual matters outside the experience of the average juror”).

The testimony of Detectives Myers and Hardiman was relevant to the issue of the credibility of the state witnesses, especially Dingle, and consistent with the testimony of the witnesses themselves, who talked about their reluctance to be seen cooperating with the police. The detectives’ testimony tended to prove that Dingle was credible in that it explained the inconsistencies in her statements. See Lawhorne v. State, 500 So.2d 519, 520 (Fla.1986) (“The credibility of witnesses is always in issue.” (citing Charles W. Ehrhardt, Florida Evidence § 401.1 (1984 ed.))). The probative value of the testimony was not outweighed by its prejudicial effect. This is especially so when compared to the cases approving such testimony in the context of gang activity, where, like the witness, the defendant is a member of the gang. Moreover, in the above cases, there is usually something more — such as an express code of silence and a legitimate fear of retaliation — than the general reluctance to speak truthfully here. In those circumstances, the testimony, unlike the testimony here, is more likely to suggest the culpability of the defendant by reference to something other than the facts of the charged crime.

This case is distinguishable from Wimberly v. State, 41 So.3d 298 (Fla. 4th DCA 2010), where we found certain statements by the prosecutors in closing argument to be “improper and objectionable.” Id. at 302. In a case where the prosecution had problems with its witnesses’ memories, one prosecutor argued that the neighborhood where a shooting occurred was a “close community” where people “want to protect each other” and “certainly don’t want to talk to police.” Id. We found this argument was “improper for the reason that these comments were completely unsupported by any evidence at trial.” Id.; accord United States v. Price, 346 F. App’x 796, 803-04 (3d Cir.2009) (holding improper a prosecutor’s comments on the character of a neighborhood and its inhabitants where there was no supporting evidence); Flowers v. State, 858 A.2d 328, 331-32 (Del.2004) (holding that prosecutor’s reference to “code of silence” among witnesses to shooting not plain error where argument finds support in record). The instant case involves the admission of evidence that was lacking in Wimberly, Price, and Flowers — here, both the witnesses and the detectives testified about the reluctance of the neighborhood residents of Sixth Street and Rosemary Avenue to openly cooperate with the police.

In arguing that the testimony was unduly prejudicial, Jackson relies on a line of criminal cases that forbids the use, as substantive proof of a defendant’s guilt, of testimony about (1) the similarity of a defendant’s conduct to general patterns of criminal behavior or (2) a defendant’s presence in a high crime area. The relied upon cases stand for the proposition that a defendant has the right to be tried on the evidence against him and not on a theory of guilt by association. See, e.g., Baskin v. State, 732 So.2d 1179, 1180 (Fla. 1st DCA 1999) (“[GJeneral criminal behavior testimony based upon a law enforcement officer’s observations and experience in the investigation of other cases is inadmissible as substantive proof of a defendant’s guilt, because a defendant has a right to be tried based on the evidence against him or her, not on the characteristics or general behavior of certain classes of criminals in general.” (citations omitted)); Dean v. State, 690 So.2d 720, 722 (Fla. 4th DCA 1997) (“This court has repeatedly condemned testimony about behavior patterns of criminals, including drug dealers, based upon an officer’s observations in other cases.” (citations omitted)).

In particular, Jackson relies on a specific application of the principle that, in certain circumstances, forbids testimony on the general characteristics of the neighborhood in which the defendant was arrested. For example, we reversed a conviction for tampering with evidence in the context of a drug charge when “the two arresting officers testified at length about their experience in narcotics arrests and the reputation of the location where the arrest was made as a high crime area” well known for drugs. Johnson v. State, 559 So.2d 729, 729 (Fla. 4th DCA 1990); see also Wheeler v. State, 690 So.2d 1369 (Fla. 4th DCA 1997) (same). Likewise, we reversed a conviction for possession of heroin where the prosecutor stated that the area where the defendant was arrested was known for drug use, and the arresting officer so testified, because “[t]he fact that the policeman knew the scene as being within a reputed narcotics area doesn’t tend to prove anything in issue and could only serve to unduly prejudice the jury.” Beneby v. State, 354 So.2d 98, 99 (Fla. 4th DCA 1978); see also Lowder v. State, 589 So.2d 933, 935 (Fla. 3d DCA 1991) (“In a prosecution for possession of illegal drugs, the fact that a police officer knows that an arrest scene is a reputed narcotics area does not prove anything in issue and is ‘patently prejudicial.’ ” (citation omitted)).

This line of cases is inapplicable here. Unlike those eases, the detectives’ testimony that residents in the neighborhood were often reluctant to cooperate with police was not used to imply Jackson’s guilt by association or his mere presence in the neighborhood. Rather, the testimony was used to address Dingle’s credibility, which was an issue very much in dispute. Thus, the concern underlying cases like Johnson and Beneby is not present in this case.

Finally, this is not a case where the detectives’ testimony improperly bolstered the credibility of another witness. “[A]llowing one witness to offer a personal view on the credibility of a fellow witness” is improper because it “is an invasion of the province of the jury to determine a witness’s credibility.” Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993). An example of the rule’s application is Acosta v. State, 798 So.2d 809 (Fla. 4th DCA 2001). There, we held improper a detective’s testimony that everything a state’s witness told him “appeared to be truthful.” Id. at 809. Further, in Essex v. State, 917 So.2d 953 (Fla. 4th DCA 2005), we held that a detective’s opinion on the consistency between two other witnesses’ testimonies was inadmissible. The detectives in this case did not cross the line. Neither opined that Dingle was truthful, honest, or credible. Their testimonies were not comments about Dingle; they were in the nature of factual background relevant to the evaluation of Dingle’s testimony.

We have considered the remaining point on appeal and find no abuse of discretion in the trial court’s denial of the motion for mistrial.

Affirmed.

WARNER and STEVENSON, JJ„ concur.

      . In her closing argument, the prosecutor emphasized that people in the neighborhood where the shooting occurred were reluctant to cooperate with law enforcement, for fear of being labeled a snitch or rat and life being made more difficult as a result of the label. This was a theme that the State also explored during its opening statement. Jackson did not object to any of these comments.

      . Similarly, a prosecutor may call the defendant or a witness a liar when “it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence.” Craig v. State, 510 So.2d 857, 865 (Fla. 1987). On that basis, in Craig, the Supreme Court found not improper the prosecutor’s "repeated references to defendant’s testimony being untruthful and to the defendant himself as a 'liar.' " Id.

      . We note that Jackson never argued below, and does not argue here, that the detectives were not qualified to give expert testimony. Anyway, it is clear from their testimony that each had extensive experience with the neighborhood. See § 90.702 (expert witness is one "qualified as an expert by knowledge, skill, experience, training, or education”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rebekah DURHAM, Petitioner, v. Robert BUTLER, Respondent.
    No. 3D11-2641.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Waterway & Evoy, and Marcia Lynn Evoy, Ft. Lauderdale; Blanco De Vera, and Betty Blanco and Joseph N. De Vera, for petitioner.
    Diane M. Trainor, for respondent.
    Before LAGOA, SALTER, and EMAS, JJ.
   PER CURIAM.

Rebekah Durham (the mother) appeals from a Florida circuit court order denying her motion to dismiss Robert Butler’s (the father) complaint for paternity. She asserts that because there is a pending appeal in a Missouri court which had original jurisdiction over this matter, the Florida court erred.in concluding it had jurisdiction. By previous order of this Court we treat this appeal as a petition for writ of prohibition. We find that, pursuant to section 61.519(1), Florida Statutes (2011), the trial court currently lacks jurisdiction, and we grant the petition.

Background

The parties are the parents of the minor child, born in Missouri in 1995. In January 2002, a hearing on paternity, child support, and visitation was conducted in Clay County, Missouri. Later that month, a Judgment Decree for Paternity, Child Support, and Visitation was issued and executed by a commissioner. Apparently, however, a Missouri circuit judge did not enter a written order confirming the commissioner’s judgment until years later.

The parties subsequently relocated to Florida and have been living here for more than three years. In June 2011, the father filed a complaint for paternity in the Miami-Dade circuit court acknowledging that he is the biological father and requesting a parenting plan. The mother then contacted the Missouri court about an order confirming the 2002 commissioner’s judgment, and shortly thereafter, a Missouri circuit judge signed such an order. The father filed a notice of appeal in July 2011,- in Clay County, Missouri. To date, that appeal is still pending.

The mother moved to dismiss the father’s paternity complaint, maintaining that because the Missouri case had not been resolved, the Florida trial court lacked jurisdiction. The motion to dismiss was denied.

Analysis

The Florida circuit courts are vested with subject matter jurisdiction to hear child custody matters when the requirements of section 61.514, Florida Statutes (2011), are present. Under section 61.514(l)(a), a circuit court has jurisdiction if this state is the child’s home state. Under section 61.516, a court of this state has jurisdiction to modify another state’s determination if 1) the court would have jurisdiction to make an initial determination under section 61.514; and 2) the court of the other state no longer has jurisdiction, or a court of this state determines that the child, the child’s parents, and any person acting as a parent do not reside in the other state. See London v. London, 32 So.3d 107, 109 (Fla. 2d DCA 2009).

In this case, assuming the Missouri decree is valid, the Florida circuit court clearly has jurisdiction to modify Missouri’s determination. However, the issue is whether the circuit court should have exercised that jurisdiction.

Section 61.519(1), Florida Statutes (2011), provides:

Except as otherwise provided in s. 61.517, a court of this state may not exercise its jurisdiction under ss. 61.514-61.524 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 61.520.

As this Court has recognized, the Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a “jurisdictional act which controls custody disputes.” Karam v. Karam, 6 So.3d 87, 90 (Fla. 3d DCA 2009) (quoting Arjona v. Torres, 941 So.2d 451, 454 (Fla. 3d DCA 2006)). In Karam, a child custody decision was on appeal in France at the time of the filing of a Florida action that included a child custody dispute, and this Court recognized that “if the French trial court exercised its jurisdiction ‘substantially in conformity’ with the UCCJEA, the Florida trial court may not exercise its jurisdiction.” Id. at 91.

Here, at the time of the commencement of the Florida proceeding, the Missouri proceeding had commenced in substantial conformity with the UCCJEA. When the Missouri action was filed in 2002, the child and the parties lived in Missouri, and neither party disputes that Missouri was the child’s home state. Because the Missouri proceeding is still pending, the Florida trial court improperly exercised its jurisdiction.

This is not to say that when the Missouri appeal concludes that the father may not petition for modification or, if the Missouri court finds the child custody determination invalid, for an initial determination. However, while the Missouri action has not been terminated or stayed, the Florida trial court should not exercise its jurisdiction under the UCCJEA. Conclusion

A writ of prohibition is an appropriate, if extraordinary, remedy that lies when a lower court is without jurisdiction or is attempting to act in excess of its jurisdiction. See, e.g., Mandico v. Taos Constr., Inc., 605 So.2d 850, 853-54 (Fla. 1992); see also Hamill v. Bower, 487 So.2d 345, 348 (Fla. 1st DCA 1986) (recognizing that prohibition may be used to prevent a Florida court from modifying a child custody provision in violation of the statutory jurisdictional limitations). In the case at hand, the trial court should not have exercised jurisdiction nor denied the mother’s motion to dismiss. We therefore grant the petition for prohibition. We trust that it will not be necessary to issue the writ.

Petition granted.

      . No Florida court has discussed at length whether an action is “pending” in a court of another state when, at the time an action is commenced, there is an appeal pending from a decision of the trial court of the other state or country. However, several states, in interpreting the equivalent "simultaneous proceedings" section under the Uniform Child Custody Jurisdiction Act (UCCJA) — the uniform enactment prior to the UCCJEA — have found that an action is "pending,” and therefore the trial court is precluded from exercising jurisdiction, where an appeal from another state is still pending. See, e.g., Custody of a Minor, 392 Mass. 728, 468 N.E.2d 251 (1984); In re Custody of Rector, 39 Colo.App. Ill, 565 P.2d 950(1977).

      . While section 61.519(2) provides a means by which a Florida trial court may seek approval from a foreign court to exercise jurisdiction, see London, 32 So.3d at 110, given the current status of the Missouri proceeding, subsection (2) is inapplicable.


author: ROTHENBERG, J.

text:
    Josue COTTO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3418.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.

      Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before ROTHENBERG and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Josué Cotto appeals from a denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for an evidentiary hearing.

The facts are undisputed. On December 1, 2002, Cotto, for no discernable reason, approached a stranger, Eric Martinez, on a South Beach street, told him he had just been ripped off while attempting to buy cocaine, took out a gun, pointed it at Mr. Martinez’s stomach, and asked Mr. Martinez whether he wanted anyone killed. When Mr. Martinez said, “No,” Cotto put the gun in his pocket and walked away. Mr. Martinez immediately called the police. Detective Motola, one of the responding officers, saw Cotto walking down the street holding a gun, ordered him to drop it, took him into custody, and recovered the gun.

On the day before trial, on June 21, 2005 (more than two-and-one-half years after Cotto’s arrest), defense counsel requested a continuance so that he could “explore” the issue of whether Cotto was legally insane at the time of the commission of the offense. When the trial court asked defense counsel why he was raising a potential insanity defense for the first time at the eleventh hour, with “a jury sitting right outside” the courtroom, defense counsel responded:

Well, frankly, Your Honor, this is an issue that the defendant raised with me and I could not answer it frankly for him as to whether he was, whether he met the legal criteria for being insane at the time he committed these offenses.
I don’t know how to explain it to the Court other than when questioned by my defendant today in the jury room on why isn’t this an issue in his defense, I don’t have a clear cut answer for him as to why it isn’t an issue.
You know, it may be an issue that I should have explored at an earlier time. I don’t have much to say about it other than it was a question that he asked me and a very pointed question that I’m unable to give him a legal answer to at this particular point in time.
At this time, I’m not prepared to present an insanity defense at trial.
It is an issue that the defendant raised with me and he may be legally correct on this. I don’t know how to answer it.
I don’t know what else to say other than it seems there may be some good cause here and I cannot tell the defendant that I have a legal answer to give him as to whether he was insane at the time of the offense.
It can only be confirmed by the doctors that examined him in the past and it probably should have been something that I should have asked them to explore when we had all the competency evaluations, but I focused on competency.

The trial court denied defense counsel’s motion for a continuance.

The next day, before trial commenced, defense counsel informed the trial court that he filed a notice of intent to rely on an insanity defense. The trial court found that the insanity issue was a delay tactic, did not allow defense counsel to present an insanity defense, and proceeded to trial.

The jury found Cotto guilty of carrying a concealed firearm, aggravated assault with a firearm, and possession of a firearm by a convicted felon. The trial court sentenced Cotto: (1) as a prison releasee reoffender for the charge of aggravated assault with a firearm to a minimum mandatory sentence of five years in prison; and (2) and as a habitual felony offender for the charges of carrying a concealed firearm and possession of a firearm by a convicted felon to ten years and thirty years in prison, respectively. The trial court ordered the two habitual offender sentences to run concurrently with each other, and consecutively to the prison re-leasee reoffender sentence.

Cotto then filed a pro se rule 3.850 motion for postconviction relief in which he advanced two pertinent arguments. First, Cotto argued his attorney was deficient for failing to timely investigate, prepare, or present an insanity defense. In support thereof, Cotto alleged: he has a long, documented history of mental illness and drug dependency; he was found legally incompetent while awaiting trial; Detective Motola testified that, at the time of the arrest, Cotto “kept talking to himself,” and “seemed somewhat bizarre in his mannerisms and speech,” making the detective wonder “what was the matter with him”; asking a stranger whether he wanted anyone killed is “obviously not something a sane person would do”; and he was “obviously out of his mind the day of these crimes.” Cotto argued that but for counsel’s failure to investigate, prepare and present an insanity defense, “a competent and compelling temporary insanity defense would have been presented at trial, resulting in an acquittal as to all counts.”

Second, Cotto argued that under Hale v. State, 630 So.2d 521 (Fla.1994), a habitual offender sentence cannot be ordered to run consecutively to a prison releasee reof-fender sentence, and thus his sentence was illegal.

The trial court denied Cotto’s claims without an evidentiary hearing. Specifically, the trial court ruled that Cot-to’s ineffectiveness claim was facially insufficient because Cotto “failed to assert that, at the time of the offense, because of a mental disease or defect, he did not know the nature or consequences of his act or that he was unable to distinguish right from wrong.” With respect to Cotto’s argument regarding consecutive sentencing, the trial court determined that Hale only prevented enhanced habitual offender sentences from being imposed consecutively to each other, and since a prison releas-ee reoffender sentence is not enhanced beyond the statutory maximum, it was lawful to run it consecutively to the habitual offender sentence. This appeal followed.

On appeal, Cotto advances several arguments, two of which merit discussion. First, Cotto alleges the trial court erred in summarily denying his claim that counsel was ineffective for failing to investigate, prepare, or present a defense of insanity. We agree.

Florida adheres to the Strickland test as the governing standard for claims of ineffective assistance of counsel. Krawczuk v. State, — So.3d -, 2012 WL 1207215 (Fla. 2012). “[F]or ineffective assistance of counsel claims to be successful, the defendant must demonstrate both deficiency and prejudice.” Id. at-. In demonstrating deficiency, “the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.” Id. at-(quoting Bolin v. State, 41 So.3d 151, 155 (Fla.2010)). “In demonstrating prejudice, the defendant must show a reasonable probability that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Krawczuk, — So.3d at - (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo.” Kraw-czuk, — So.3d at- (citing Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004)).

The trial court concluded Cotto’s claim for ineffective assistance of counsel was facially insufficient because Cotto did not allege he satisfied the M’Naghten test for insanity at the time of the commission of the crime. It appears the trial court concluded that since Cotto did not allege he was legally insane at the time the crimes were committed, he could not have been prejudiced by his attorney’s failure to investigate, prepare, or present an insanity defense, and therefore did not satisfy the “prejudice” prong in Strickland. We disagree.

Importantly, Cotto did not limit his claim of ineffective assistance to defense counsel’s failure to present an insanity defense. To the contrary, Cotto claimed that defense counsel was ineffective for failing to even investigate the applicability of an insanity defense. The efficacy of such a claim is not governed by the M’Naghten standard, but by: (1) whether defense counsel’s failure to investigate an insanity defense under the facts presented was outside the broad range of reasonably competent performance under the prevailing professional standards; and (2) whether the defendant can establish a reasonable probability that an investigation into an insanity defense by defense counsel would have ultimately resulted in the presentation of a viable insanity defense, and but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Given the allegations and record evidence regarding Cotto’s mental infirmities, and in light of defense counsel’s admissions on the record regarding his failure to timely investigate what he admitted was a potentially viable insanity defense, we conclude Cotto’s motion was facially sufficient to warrant an evidentiary hearing. We therefore reverse the trial court’s summary denial of Cotto’s claim for ineffective assistance of counsel, and remand for an evidentiary hearing.

Cotto’s second claim involves a sentencing issue. Although we recognize that the sentencing issue will become moot as to Cotto if Cotto is ultimately granted a new trial, we have elected to address the sen-fencing issue to provide a complete adjudication of the issues raised and argued, and to provide guidance to the trial courts regarding the issue.

Cotto argues that based on Hale, the trial court erred in imposing the enhanced habitual offender sentences consecutively to the five year prison releasee reoffender minimum mandatory sentence. Cotto argues these sentences were imposed for crimes arising out of the same criminal episode, and notes that the total duration of his consecutive sentences (thirty-five years) exceeds the maximum duration that would be allowable if the statutory maximum was ordered as to each offense and these sentences were ordered to run consecutively (twenty-five years). Cotto argues that this is precisely what Hale forbids. We disagree.

Even assuming, without deciding, that Cotto’s possession of a firearm and aggravated assault charges arose from a single criminal episode, the trial court’s imposition of the habitual offender sentences concurrently with each other and consecutively to the prison releasee reoffender sentence does not run afoul of Hale. As is explained below, we read Hale to forbid only the imposition of two or more consecutive sentences that have themselves been enhanced and which arise from the same criminal episode.

In Hale, the defendant was convicted for separate charges for the (1) sale and (2) possession of the same cocaine. Hale, 630 So.2d at 522. The sentencing scoresheet provided a recommended range of four- and-one-half to five-and-one-half years. Id. at 523. However, under section 775.084(4)(b), Florida Statutes (1991), because Hale was found to be a habitual violent felony offender, the trial court had the discretion to enhance Hale’s sentence to a maximum of thirty years per count, with each count carrying a ten-year minimum mandatory sentence. Id. The trial court sentenced Hale to two consecutive twenty-five year habitual violent felony offender terms, one for each conviction, with each sentence carrying a ten-year minimum mandatory sentence. Id. Accordingly, Hale was required to serve a minimum of twenty years before being eligible for parole.

The Florida Supreme Court held that the sentence was illegal, reasoning that the legislature did not empower trial courts to run enhanced sentences consecutively to one another when the charges arise out of the same criminal episode. Id. at 524. The Court examined the legislative intent, noting that:

[B]y enacting sections 775.084 and 775.0841, Florida Statutes (Supp.1988), the legislature intended to provide for the incarceration of repeat felony offenders for longer periods of time. However, this is accomplished by enlargement of the maximum sentences that can be imposed when a defendant is found to be an habitual felon or an habitual violent felon.

Id. (quoting Daniels v. State, 595 So.2d 952 (Fla.1992)). Thus, the Court determined:

[T]he legislative intent is satisfied when the maximum sentence for each offense is increased. We find nothing in the language of the habitual offender statute which suggests that the legislature also intended that, once the sentences from multiple crimes committed during a single criminal episode have been enhanced through the habitual offender statutes, the total penalty should then be further increased by ordering that the sentences run consecutively.
We conclude that, under the statutory penalty for each offense, the trial court may sentence this defendant separately for possession, and sentence him separately for the sale, and make each sentence consecutive to the other. However, the trial court is not authorized, in our view, to both enhance Hale’s sentence as a habitual offender and make each of the enhanced sentences for the possession and sale of the same identical piece of cocaine consecutive, without specific legislative authorization in the habitual offender statute.

Id. at 524-25 (emphasis added).

As established above, Hale prevents a trial court from imposing a sentence that has been enhanced under the habitual offender statute consecutively to another sentence that has also been enhanced under the habitual offender statute, when the charges arise from the same criminal episode. Thus, before imposing sentences for counts arising out of the same criminal episode consecutively, a trial court must determine whether the sentence is considered an enhanced sentence within the meaning of Hale. As will be demonstrated below, sentences imposed pursuant to the habitual felony offender statute, habitual violent felony offender statute, and violent career criminal statute are enhanced sentences within the meaning of Hale because they provide for sentencing in excess of the statutory máxi-mums set forth in section 775.082, Florida Statutes.

The habitual offender statute, found in section 775.084(l)(a), states: “ ‘Habitual felony offender’ means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(a) .... ” (emphasis added). Paragraph (4)(a) provides for sentencing of habitual felony offenders beyond the statutory maximum as follows:

The court, in conformity with the procedure established in paragraph (3)(a), may sentence the habitual felony offender as follows:
1. In the case of a life felony or a felony of the first degree, for life.
2. In the case of a felony of the second degree, for a term of years not exceeding 30.
3. In the case of a felony of the third degree, for a term of years not exceeding 10.

§ 775.084(4)(a), Fla. Stat. (2005) (emphasis added).

The habitual violent felony offender statute, found in section 775.084(l)(b), provides: ‘“Habitual violent felony offender’ means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(b) .... ” (emphasis added). Paragraph 4(b) provides for sentencing of habitual violent felony offenders beyond the statutory maximum as follows:

The court, in conformity with the procedure established in paragraph (3)(a), may sentence the habitual violent felony offender as follows:
1. In the case of a life felony or a felony of the first degree, for life, and such offender shall not be eligible for release for 15 years.
2. In the case of a felony of the second degree, for a term of years not exceeding 30, and such offender shall not be eligible for release for 10 years.
3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years.

§ 775.084(4)(b).

The violent career criminal statute, found in section 775.084(l)(d) provides: “ “Violent career criminal’ means a defendant for whom the court must impose imprisonment pursuant to paragraph (4)(d).... ” Paragraph 4(d) provides for sentencing of violent career criminals beyond the statutory maximum as follows:

(d) The court, in conformity with the procedure established in paragraph (3)(c), shall sentence the violent career criminal as follows:
1. In the case of a life felony or a felony of the first degree, for life.
2. In the case of a felony of the second degree, for a term of years not exceeding 40, with a mandatory minimum term of 30 years’ imprisonment.
3. In the case of a felony of the third degree, for a term of years not exceeding 15, with a mandatory minimum term of 10 years’ imprisonment.

§ 775.084(4)(d).

As demonstrated above, the habitual felony offender statute, habitual violent felony offender statute, and violent career criminal statute provide for sentencing in excess of the statutory máximums. Thus, under Hale, sentences imposed pursuant to these statutes may not be imposed consecutively to one another when the offenses were committed during the course of the same criminal episode.

Conversely, sentences imposed pursuant to the criminal punishment code, three-time violent felony offender statute, and prison releasee reoffender statute are not enhanced sentences within the meaning of Hale because they do not provide for sentencing in excess of the statutory máximums set forth in section 775.082.

The criminal punishment code, found in section 921.0024, Florida Statutes (2005), states, in relevant part: “The permissible range for sentencing shall be the lowest permissible sentence up to and including the statutory maximum, as defined in s. 775.082, for the primary offense and any additional offenses before the court for sentencing. The sentencing court may impose such sentences concurrently or consecutively.” § 921.0024(2) (emphasis added).

The three-time violent felony offender statute, found in section 775.084(l)(e), provides: “ ‘Three-time violent felony offender’ means a defendant for whom the court must impose a mandatory minimum term of imprisonment, as provided in paragraph (4)(c).... ” (emphasis added). Paragraph (4)(c) requires the trial court to impose a mandatory minimum sentence in accordance with the statutory maximum as follows:

(c) 1. The court, in conformity with the procedure established in paragraph (3)(b), must sentence the three-time violent felony offender to a mandatory minimum term of imprisonment, as follows:
a. In the case of a felony punishable by life, to a term of imprisonment for life;
b. In the case of a felony of the first degree, to a term of imprisonment of 30 years;
c. In the case of a felony of the second degree, to a term of imprisonment of 15 years; or
d. In the case of a felony of the third degree, to a term of imprisonment of 5 years.
2. Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law.[]

§ 775.084(4)(c) (emphasis added).

The prison releasee reoffender statute, found in section 775.082(9)(a)3., provides:

If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison re-leasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows:
a. For a felony punishable by life, by a term of imprisonment for life;
b. For a felony of the first degree, by a term of imprisonment of 30 years;
c. For a felony of the second degree, by a term of imprisonment of 15 years; and
d.For a felony of the third degree, by a term of imprisonment of 5 years.
(b) A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.
(c) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.
(d) 1. It is the intent of the Legislature that offenders previously released from prison who meet the criteria in paragraph (a) be punished to the fullest extent of the law and as provided in this subsection, unless the state attorney determines that extenuating circumstances exist which preclude the just prosecution of the offender, including whether the victim recommends that the offender not be sentenced as provided in this subsection.

(emphasis added).

Thus, under Hale, because sentences imposed pursuant to the criminal punishment code, three-time violent felony offender statute, or prison releasee reoffender statute are not enhanced beyond the statutory maximum, they may be imposed consecutively to one another and to sentences imposed under the habitual felony offender statute, the habitual violent felony offender statute, and the violent career criminal statute, even if the offenses were committed during the course of the same criminal episode.

In this case, the trial court imposed two sentences enhanced under the habitual felony offender statute concurrently with each other, and consecutively to a prison releasee reoffender minimum mandatory sentence. As established above, a prison releasee reoffender sentence is not an “enhanced sentence” within the meaning of Hale. “Unlike a habitual offender sentence, a PRR sentence is not enhanced beyond the statutory maximum; rather, the PRR statute establishes that the only lawful sentence for a PRR offender is the statutory maximum, which must be served in its entirety.” Reeves v. State, 920 So.2d 724, 726 (Fla. 5th DCA 2006) (citing § 775.082(9), Fla. Stat. (2004)). Because the trial court did not order that Cotto serve two or more enhanced sentences consecutively, the structure of the sentences did not run afoul of Hale.

We note that our holding directly conflicts with the Fifth District’s decision in Williams v. State, 10 So.3d 1116 (Fla. 5th DCA 2009). There, the Fifth District reversed the trial court’s imposition of a sentence enhanced under the habitual violent felony offender statute consecutively to a prison releasee reoffender sentence arising from the same criminal episode. The Fifth District determined that Hale stood for the proposition “that once the habitual offender sentencing scheme was utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing cannot be used to further lengthen the overall sentence.” Id. at 1117 (citing Fuller v. State, 867 So.2d 469 (Fla. 5th DCA 2004)) (emphasis added). Thus, under the Fifth District’s holding, a trial court cannot impose a sentence enhanced under the habitual offender statute consecutively to any other sentence, irrespective of whether the latter sentence is an enhanced sentence. For the reasons set forth in our analysis above, we disagree with this broad proposition, and hold that Hale only precludes a trial court from imposing an enhanced sentence consecutively to another enhanced sentence. We therefore certify direct conflict with the Fifth District.

Affirmed in part; reversed in part and remanded; direct conflict certified.

      . Cotto was also convicted of improper exhibition of a weapon and possession of a firearm with an altered identification. Because he was sentenced on these counts to time served, they are immaterial to our analysis and will not be discussed further.

      . Cotto raised various other claims in his rule 3.850 motion, several of which he again raised on this appeal. We need not discuss these claims, however, because we conclude they are without merit.

      .The trial court was referring to the M'Naghten test, which is the governing standard in Florida for the affirmative defense of insanity, and which is codified in section 775.027, Florida Statutes (2005).

      . This Court takes no position on the merits of Cotto’s claim that an investigation would have led to a viable insanity defense.

      . Possession of a firearm by a convicted felon is a second degree felony, normally punishable by up to fifteen years in state prison. Carrying a concealed firearm is a third degree felony, normally punishable by up to five years in state prison. Aggravated assault with a firearm is a third degree felony, normally punishable by five years in state prison. Thus, if these sentences were run consecutively under the normally applicable statutory máximums, the total duration would be twenty-five years.

      . We note that, prior to filing the postconviction motion currently under review, Cotto filed a rule 3.800(b) motion arguing that his sentence was illegal for the same reasons now advanced on appeal. The trial court denied the motion and, when Cotto appealed that denial, this Court issued a per curiam affir-mance. Cotto v. State, 990 So.2d 1072 (Fla. 3d DCA 2008). Under normal circumstances, the law of the case doctrine would preclude a litigant from advancing an argument on appeal that has already been affirmed by this Court. However, it is well-settled that “an illegal sentence may be corrected even after it has been erroneously affirmed.” Bedford v. State, 633 So.2d 13, 14 (Fla. 1994). Although we do not conclude that the sentence is illegal, we write to certify direct conflict with the Fifth District’s decision in Williams v. State, 10 So.3d 1116 (Fla. 5th DCA 2009).

      . It is important to note that such a legislative statement of intent is not found in either the habitual felony offender or the habitual violent felony offender statutes.