author: POLEN, J.

text:
    Quinten WALDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-401.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Rehearing Denied April 15, 2011.
    Carey Haughwout, Public Defender, Tyler Obenauf and Peggy Natale, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant seeks review of his conviction and sentence for attempted second-degree murder with a firearm. Appellant raises three issues on appeal, but we write only to address his argument that the trial court erred in admitting testimony about the shooting and death of another individual during the same incident. We agree with the State that the subject testimony was inextricably intertwined, and affirm.

Appellant was charged with attempted first-degree murder with a firearm. The charge arose from a fight at an apartment complex, during which Justin Matthews was shot. Justin identified appellant as the shooter. Prior to trial, the defense moved in limine to prohibit testimony about the shooting and death of Sharod Smith during the same incident. The State asserted that witness Eric Frazier (Justin’s brother) would testify that he saw appellant shoot Sharod. The State argued that Eric’s testimony was relevant because the shooting of Sharod was “inextricably intertwined” with the shooting in this case, and was also admissible as Williams rule evidence, to prove identity, opportunity or motive.

Eric testified that he and Sharod were best friends. At the time of the shooting, Sharod lived in the Dillard neighborhood with his mother. Eric, then fifteen years old, lived with them. The two boys grew up in another neighborhood, which seemed to upset the kids in Dillard. Three weeks before the shooting, Eric and Sharod fought with Dillard kids.

On the evening in question, the two boys passed the Dillard kids while walking to Sharod’s house. The Dillard kids were “talking like junk, like they wanted to fight,” and one of them shot a gun into the air. There were about twenty boys outside of Sharod’s apartment. Once inside the apartment, Eric called his brother Justin to pick him up.

A few minutes later, Justin arrived at Sharod’s apartment. As they all walked out, the Dillard boys surrounded them, and a fight broke out. Eric heard a gunshot and turned to see Sharod fall to the ground. He saw appellant with a gun in his hand. Sharod jumped back up and ran towards his house; Eric ran after him. Appellant shot again at Eric and Sharod. Once inside Sharod’s house, Eric saw him on the floor, bleeding. Eric heard another gunshot from outside.

Five days after the incident, Eric was asked to identify the shooter in a photo lineup. Eric was unable to do so, because he was too upset. Sharod was his best friend, and had died from his gunshot wounds.

Eric returned to the police station several weeks later, and identified appellant as the shooter. Eric did not know appellant, but referred to him as “Bookey’s brother.” Eric had seen appellant around the neighborhood before the shooting incident.

Justin, the victim in the ease being tried, also testified to the events on the day of the shooting. He received a call from his younger brother Eric, and Eric’s best friend, Sharod, who said that boys outside Sharod’s apartment were trying to jump on them. Justin agreed to come and get them, and drove over to Sharod’s house. Justin got out of the car and walked up to appellant who was leaning on a car, and asked him if he saw anyone fighting. Appellant said no and pointed out Sharod’s apaz*tment.

Justin proceeded to Sharod’s apartment and picked up his brother. As they walked out, there were twenty people from Dillard standing around. A fight broke out. Justin was fighting someone he did not know, when he turned around and saw appellant in his face with a gun. Appellant shot Justin. Appellant continued to pull the trigger, but either there were no more bullets or the gun jammed. Justin ran towards a friend’s car and jumped in. Several more shots were fired at the car, though Justin could not see who was shooting. While in the hospital, Justin picked appellant out of a photo lineup. Justin did not see anyone else with a gun during the fight.

The State argued that the jury needed to hear the evidence regarding the shooting of Sharod Smith, because the events leading up to that shooting also led up to the shooting of the victim in this case, Justin Matthews. Specifically, the State argued:

It happens at Sharod’s house, in Shar-od’s neighborhood. It happens because of a problem that Sharod and Eric Frazier are having with the neighborhood guys in Dillard. We’ve heard from Eric Frazier that he saw the defendant frequenting in the area. He’s one of the neighborhood guys, knew him as Bookie’s [sic] big brother who is another neighborhood guy. Had this case not been lost to a speedy trial issue, the State’s of the firm belief that the two counts would be tried together. You have two shootings that happen moments from one another. In order for the jury to really have an understanding and hear all the evidence in the context of the witnesses, they need to hear about the shooting of Sharod and the shooting of Justin Matthews. It’s not, as defense counsel has couched it, that I want to put [appellant] in a bad light and inflame the jury. I don’t. It really is relevant to the shooting of Justin Matthews.

The State argued further, that the evidence was necessary to explain Sharod’s absence, and why Eric was initially unable to identify appellant:

[T]he jury is going to hear about Shar-od’s house, about Sharod’s fight, about the friendship of Eric and Sharod, but they’re not going to hear from Sharod. The reason they’re not going to hear from Sharod is because Sharod is dead. Sharod is dead because of the criminal conduct that took place that day. So that’s one reason.
Another reason why it’s so important is because according to Eric Frazier he can’t make an ID of [appellant] because he’s so distraught over the death of Sharod. So that’s another reason why the evidence of Sharod’s death needs to come into Justin’s trial.

The State also argued the evidence was relevant and should be admitted pursuant to Williams, as it went to prove intent, motive and identity.

The trial court denied appellant’s motion in limine, finding the evidence of Sharod Smith’s shooting was inextricably intertwined with the circumstances of the shooting of Justin Matthews. The court also found the evidence was relevant to show identity, intent and opportunity. The court further noted that the fact of Sharod’s death was important, “to explain why he didn’t testify at trial.” The court ruled that as long as the State did not make Sharod’s death a feature of the trial, and did not use the word “murder,” then the probative value outweighed any prejudicial effect.

At trial, Eric Frazier testified as he did during the Williams rule hearing. A few weeks before the incident, he and Sharod fought with the guys from Dillard. On the day of the incident, he and Sharod were walking to Sharod’s house, when they encountered about twenty Dillard guys, who were “talking trash” like they wanted to fight. Someone fired a gunshot in the air, and Eric called his brother Justin to come and get him. Justin came and, as they left Sharod’s apartment, they were surrounded.

A fight broke out and Eric heard gunshots. Eric saw Sharod fall, and saw appellant with a gun in his hand. Sharod jumped up and he and Eric ran towards Sharod’s apartment; appellant continued shooting at them. Once inside Sharod’s house, Eric saw that Sharod was shot. Eric learned that his brother Justin had also been shot, but Eric did not see the person who shot Justin.

In an initial statement to police, Eric said that he saw only Bookey Miller with a gun. Eric was unable to identify appellant as the shooter, immediately after the incident. Two months later, Eric picked appellant out of a photo lineup as the person who shot Sharod. •

Justin also testified as he did during the pretrial hearing, describing how his brother Eric called him about a situation in Dillard where boys were trying to jump him. When Justin arrived at the apartment complex he saw appellant leaning against a car. Appellant pointed to Shar-od’s apartment. Justin then proceeded to Sharod’s apartment to get Eric and Shar-od. When they left the apartment, a fight broke out.

During the fight, Justin came face to face with appellant. Appellant shot Justin and then pulled the trigger again, but the gun jammed. Justin looked at appellant for about five seconds, then looked down and saw he was shot. Justin ran to a friend’s car and jumped in.' Someone continued shooting at the car.

While Justin was in the hospital, he identified appellant to detectives from a photo lineup. Justin did not know appellant prior to the shooting.

Various guns, shell casings and ammunition were found in the area of the fight. No fingerprint matches were found on any of the firearms. Six .38 caliber projectiles that were recovered from the scene, including one that contained Justin’s blood, were all shot from the same firearm, which was never recovered.

During closing, pursuant to the pretrial ruling on appellant’s motion in limine, the trial court advised the jury that Sharod Smith had died prior to these proceedings.

At the conclusion of trial, the jury found appellant guilty of the lesser included offense of attempted second-degree murder with a firearm. The jury also found that, during the commission of the offense, appellant possessed and discharged a firearm, and caused great bodily injury.

Appellant argues that the trial court erred in allowing evidence about the shooting of Sharod Smith to be admitted at trial, because the evidence was not necessary to prove any material, contested facts in issue and the prejudicial nature of that evidence far outweighed its probative value. The State responds that the evidence was properly admitted because the two shootings, which occurred during the same melee, were inextricably intertwined. We agree with the State and affirm.

“A trial court has wide discretion concerning the admissibility of evidence, and, in the absence of an abuse of discretion, a ruling regarding admissibility will not be disturbed.” Jent v. State, 408 So.2d 1024, 1029 (Fla.1981). To that end,

evidence of uncharged ci’imes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams rule evidence. It is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.”

Griffin v. State, 639 So.2d 966, 968 (Fla.1994) (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)) (emphasis added); accord Thomas v. State, 885 So.2d 968, 975 (Fla. 4th DCA 2004).

We find that the facts relating to the shooting of Sharod Smith were inextricably intertwined with the facts pertaining to the shooting of Justin Matthews, as both shootings occurred during one big episode. As the State notes, the evidence adduced below included “many firearms and much ammunition, which was apparently dumped at the scene some time after the shooting incident.” Because of this evidence, the State needed to establish that the shot fired at Justin was not simply one of many that were unintentionally fired in his direction. Further, the testimony that Eric and Sharod fought with the Dillard group a few weeks before this incident, and that Sharod and Justin (Eric’s brother) were shot during the same melee, was necessary to show that appellant, one of the Dillard group, intentionally chose his victims. The subject testimony placed Justin’s shooting in context, and also accounted for Sharod’s absence during the trial. See Henry v. State, 649 So.2d 1366, 1368 (Fla.1994) (finding the facts in question relating to the two murders inextricably intertwined, placing the evidence of the murder being tried in context and accounting for a witness’s absence at trial).

Because we find that the evidence of Sharod Smith’s shooting, as given by Eric Frazier, was inextricably intertwined with the circumstances of the shooting of Justin Matthews, we need not address whether Eric’s testimony was properly admitted pursuant to the Williams rule. We affirm on the remaining issues without comment.

'Affirmed.

CIKLIN and LEVINE, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Derrick Leroy GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-976.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, and Derrick Leroy Green, Crawfordville, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s adjudication of Defendant, Green, being in violation of probation and the concurrent sentences. The public defender has filed a motion and brief to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and by separate order we grant that motion.

Green has filed his own pro se brief, in which he raises the following grounds for reversal of the trial court’s order and sentence: (1) The affidavit and felony warrant issued in 1993 in accordance with the 1992-1994 version of section 948.06, Florida Statutes, was insufficient to toll probation; (2) The felony warrant statute of limitations applies to a violation of probation arrest warrant; (3) Green is entitled to incarceration credit from September 1, 1994, to January 26, 2008; (4) The State violated the negotiated plea agreement referenced at the March 17, 2008, February 6, 2009, and March 3, 2009 hearings; (5) Ineffective assistance of counsel; and (6) Double jeopardy.

We have thoroughly reviewed each of the grounds raised by Green, and the citations of authority that he has offered in support of those arguments. We find each argument to be without merit and most of the cases cited to be inapplicable. Accordingly, we find no error in the trial court’s determination of violation of probation and the sentence imposed thereon. Accordingly, we affirm without prejudice to file a motion under Florida Rule of Criminal Procedure 3.850, if Green can in good faith do so.

Affirmed,.

POLEN, HAZOURI and CIKLIN, JJ„ concur.


text:
    Tony DICKEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1842.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence, without prejudice to appellant raising, through a motion for postconviction relief, the issues of ineffective assistance of counsel addressed in the initial brief.

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Neal BROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5015.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Neal Bross, Moore Haven, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s right to file a properly sworn motion within 30 days of this opinion.

WARNER, TAYLOR and HAZOURI, JJ., concur.


text:
    R.D.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-241.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, R.D.H., challenges his conviction entered after trial on an amended juvenile petition. We affirm and write only to address appellant’s argument that the trial court abused its discretion in sequestering appellant’s mother.

Appellant was charged with resisting or obstructing two officers without violence. Before trial, over defense counsel’s objection, the trial court granted the State’s request to sequester appellant’s mother (a state witness) with the other witnesses, prior to her testimony. Because the mother was not excluded from the courtroom during any portion of the prosecution’s case, and was absent only during counsels’ brief argument on a pretrial motion, we find any error to be harmless.

Section 90.616, Florida Statutes (2009), provides:

(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2)
(2) A witness may not be excluded if the witness is:
(a) A party who is a natural person.
(c) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause.
(d) In a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.

J.R. v. State, 923 So.2d 1269 (Fla. 1st DCA 2006), is instructive, albeit distinguishable. In J.R., the First District reversed a delinquency adjudication where the trial court sequestered the juvenile defendant’s mother during his trial, finding the error not to be harmless.

J.R.’s counsel objected to the child going to trial without his mother being present in the courtroom. Id. at 1270. She was also a defense witness. The trial court noted the objection and sequestered J.R.’s mother. On appeal, the First District found that the mother of J.R. was a. party to the delinquency proceeding and, therefore, the rule of sequestration gave no basis upon which the trial court could exclude her from the adjudicatory hearing, even if she was listed as a defense witness. Id. at 1272. The court based this holding on a number of statutes and rules which (1) made her legally responsible for restitution, see generally Fla. R. Juv. P. 8.030(b) (2004); (2) require service of summons on parents, § 985.219, Fla. Stat. (2004); and (3) contemplate the parents’ participation at both detention hearings and final disposition hearings. Fla. R. Juv. P. 8.010(d) (2004). Id. at 1272-74.

The court further held that the error was not harmless, stating: “[T]he exclusion here was not for a small portion of cumulative evidence but for a substantial portion of the proceedings, including the entire case-in-chief for the State during the adjudicatory hearing.” Id. at 1276 (quoting L.B. v. State, 675 N.E.2d 1104, 1107 (Ind.Ct.App.1996)).

Here, unlike in J.R., where the defendant called his mother as a defense witness, the State called the mother for the sole purpose of establishing jurisdiction based on appellant’s age. More significantly, the mother in this case was not excluded from the courtroom during any portion of the prosecution’s case. She was called as the State’s first witness, and was expressly told by the trial court that she could stay in the courtroom after her testimony. She was absent only during counsels’ brief argument on a motion to discharge based on the running of the speedy trial period. Thus, any error was harmless.

We similarly distinguish this case from our recent decision in L.E.D. v. State, 48 So.3d 167 (Fla. 4th DCA 2010), where we reversed because the trial court sequestered the mother throughout the presentation of the State’s case. See id. at 169 (finding the First District’s opinion in J.R. to be persuasive and adopting its reasoning as our .own).

We find the remaining claim on appeal to be without merit and affirm without comment.

Affirmed.

HAZOURI and CIKLIN, JJ., concur.


text:
    Michael Hugh MOSES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1344.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Michael Hugh Moses, Zephyrhills, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant has repeated a claim of score-sheet error which was previously denied and affirmed on appeal. Appellant’s claim that the scoring of victim injury points on his scoresheet violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is without merit. Appellant waived the right to a jury finding regarding penetration by entering the negotiated plea to reduced charges and this specific sentence. Further, no manifest injustice results, and the alleged Apprendi violation is harmless. See Galindez v. State, 955 So.2d 517 (Fla.2007). Although the statutory maximum for each of the second-degree felonies was increased by a few months based on the scoresheet total, the same composite sentence could have been imposed by structuring one of the sentences consecutively. We affirm.

Appellant is cautioned that the filing of repetitive or frivolous postconviction challenges and/or appeals may result in sanctions or referral to prison officials for disciplinary proceedings. See State v. Spencer, 751 So.2d 47 (Fla.1999); § 944.279(1), Fla. Stat. (2009); § 944.28(2)(a), Fla. Stat. (2009).

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


author: CORTINAS, J;

text:
    SOUTH POINTE FAMILY & CHILDREN CENTER, INC., a Florida nonprofit Corporation, Appellant, v. MIAMI-DADE COUNTY, Florida; Miami-Dade County Property Appraiser; Miami-Dade County Tax Collector; and The Florida Department of Revenue, Appellees.
    No. 3D09-3406.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.

      Joel M. Aresty, Miami, for appellant.
    R.A. Cuevas, Jr.' Miami-Dade County Attorney, and Rodolfo A. Ruiz, Assistant County Attorney, for appellees.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   CORTINAS, J;

South Pointe Family & Children Center, Inc. (“South Pointe”) appeals the trial court’s final order of dismissal for lack of jurisdiction in favor of Miami-Dade County, Florida, Miami-Dade County Property Appraiser, Miami-Dade County Tax Collector, and the Florida Department of Revenue (collectively “Miami-Dade”). South Pointe, a non-profit corporation, filed a complaint against Miami-Dade contesting the 2004, 2005, and 2006 ad valorem tax assessments on real property located at 1780 S. Glades Dr., North Miami Beach, Florida 33162 (the “Property”). Additionally, South Pointe also owned an adjacent property, located at 1760 S. Glades Dr., North Miami Beach, Florida 33162 (the “Adjacent Property”).

South Pointe claimed that because it is a non-profit corporation, it was exempt from ad valorem- taxes on both the Property as well as the Adjacent Property. South Pointe alleged that any change to its ad valorem tax status was erroneous, and thus, Miami-Dade improperly sold tax certificates that resulted in a faulty tax deed application. Also, South Pointe claimed it was exempt from the jurisdictional requirements of section 194.171, Florida Statutes (2007), the Non-Claim Statute, for failure to timely contest the tax assessments because it did not receive actual notice of the change from non-taxable to taxable property.

In response, Miami-Dade filed a motion to dismiss based on South Pointe’s failure to comply with the sixty-day jurisdictional requirement of the Non-Claim Statute, and for delinquent 2007 and 2008 ad valo-rem property taxes. The trial court entered a final order of dismissal for lack of jurisdiction because of the failure to comply with the Non-Claim Statute. The trial court concluded that the 2006 certified tax roll was set for collection on October 17, 2006, and therefore, the sixty-day deadline to contest the 2006 assessment expired December 18, 2006. Accordingly, the time to contest the 2004, 2005, and 2006 tax assessments had expired' given that the complaint was filed on April 26, 2007. We agree and affirm.

Section 194.171(2), Florida Statutes (2007), states

(2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2), or after 60 days from the date a decision is rendered concerning such assessment by the value adjustment board if a petition contesting the assessment had not received final action by the value adjustment board prior to extension of the roll under s. 197.323.

§ 194.171(2), Fla. Stat. (2007). It is well established that when taxpayers are challenging an ad valorem tax assessment as void due to an improper classification, or for any other reason, they are still bound by the jurisdictional requirements of the Non-Claim Statute. Ward v. Brown, 894 So.2d 811 (Fla.2004). In Ward; the Florida Supreme Court addressed a taxpayers’ challenge, which alleged that owned property was not subject to ad valorem taxation. Id. at 812. The taxpayers argued that the sixty-day jurisdictional period of the Non-Claim Statute was inapplicable because they were not challenging an assessment of ad valorem taxes but, rather, the classification of the property. Id. at 813. In rejecting this claim, the Florida Supreme Court held “whether [taxpayers] are claiming an exemption or claiming that the assessors’ action is illegal, unlawful, or void as an improper ‘classification’ or for some other reason, they are still bound by the provisions of [the Non-Claim statute].” Id. at 816.

In Hidden Bay Master Ass’n v. Miami-Dade County Department of Property Appraisal, we reiterated the principle that “ ‘the mandatory sixty-day provision ... applies broadly to taxpayers’ actions challenging the assessment of taxes against their property regardless of the legal basis of the challenge.’ ” Hidden Bay Master Ass’n v. Miami-Dade Cnty. Dep't of Prop. Appraisal, 938 So.2d 599, 602 (Fla. 3d DCA 2006) (quoting Ward v. Brown, 894 So.2d at 812). In Hidden Bay, this Court upheld the trial court’s dismissal of a taxpayers’ challenge that alleged an erroneous ad valorem tax assessment because the classification challenge was time-barred. In affirming, we noted that a classification challenge could not be used “ ‘to circumvent [the] failure to properly and timely challenge the tax assessment of their properties as required by [the Non-Claim Statute].’ ” Id. at 603 (quoting Ward v. Brown, 894 So.2d at 816).

Furthermore, South Pointe has failed to pay ad valorem taxes that became due in subsequent years in direct violation of section 194.171(5) and 194.171(6), Florida Statutes. These sections provide:

(5) No action to contest a tax assessment may be maintained, and any such action shall be dismissed, unless all taxes on the property assessed in years after the action is brought, which the taxpayer in good faith admits to be owing, are paid before they become delinquent.
(6) The requirements of subsections (2), (3), and (5) are jurisdictional. No court shall have jurisdiction in such cases until after the requirements of both subsections (2) and (3) have been met. A court shall lose jurisdiction of a case when the taxpayer has failed to comply with the requirements of subsection (5).

§§ 194.171(5), 194.171(6), Fla. Stat. (2007). The plain text of the statute makes clear that the trial court did not retain jurisdiction once South Pointe’s 2007 and 2008 taxes became delinquent. In addition, as the trial court correctly articulated, South Pointe’s claim is time barred under the jurisdictional requirements of the Non-Claim Statute. Accordingly, the trial court’s final order of dismissal for lack of jurisdiction is affirmed. Hidden Bay Master Ass’n, 938 So.2d at 599.

Affirmed.


author: COHEN, J.

text:
    David VEGA, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2598.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

David Vega appeals his convictions for possession of cannabis, trafficking in MDMA (commonly known as ecstasy), possession of cocaine, and obstructing a police officer without violence. Vega represented himself at trial. Because the inquiry under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), was inadequate, we are compelled to reverse for a new trial.

Vega was somehow able to convince a judge to give him six continuances in a case devoid of any real complexity. Initially appointed a public defender, Vega moved to discharge his attorney at a scheduled hearing, not because of competency issues, but because he wanted to hire a private attorney. Vega did not request the right to represent himself. The trial court, rightfully frustrated with the numerous delays in the case, granted the motion, rather than deny or defer ruling until Vega actually hired private counsel. In so doing, the trial court made it clear that no more continuances would be granted: “If your attorney comes in here, Mr. Vega, and says to me, Judge, I’m already set for trial in federal court in Timbuktu on April 20th and I can’t come here for this trial, that’s too bad.”

Apparently dubious as to Vega’s intent or ability to secure counsel, the trial court set a status hearing ten days before the scheduled trial. Because private counsel had not filed a notice of appearance, the trial court informed Vega that if counsel did not appear for trial, he was on his own. Seemingly prescient, the trial court conducted a Faretta inquiry.

The Faretta inquiry, while not particularly lengthy, revealed that Vega read, wrote, and understood English; he attended a technical school before being arrested; and he had never had a mental illness and was in “good mental health.” The trial court briefly explained how a trial was conducted, and that Vega could present evidence, call and cross-examine witnesses. The trial court advised Vega that it would be in his best interest to have an attorney represent him but Vega indicated that he had researched the evidence code while in jail. The trial court found that he had the “mental ability, you have the educational background from a nomlawyer’s — at least from a non-lawyer’s point of view, you are — you are competent to represent yourself in this case if we have to go forward on that basis.” The trial court ended the hearing by informing Vega of his trial date and that jury selection would begin the Monday prior.

Jury selection commenced and Vega did not have counsel. The remainder of the trial was scheduled two days later. After the jury was selected, Vega requested the public defender be reappointed. Vega claimed that he entrusted a third party to hire an attorney for him, but that person instead stole his money, leaving him unable to secure private counsel. The public defender who previously represented Vega informed the trial court that he, personally, could not represent Vega due to other obligations, and did not believe any other public defender could be prepared to give effective assistance on such short notice. Concerned with appointing a public defender who would be required to try the case with only two days’ preparation, the trial court took Vega’s motion under advisement, simultaneously considering it a motion for continuance. After setting forth the facts above, the trial court denied Vega’s motion for reappointment of the public defender.

Vega was tried before a jury and convicted of all four counts. Vega subsequently filed a timely notice of appeal, challenging only the denial of the reappointment of the public defender.

Vega’s attack on the trial court’s Faretta, inquiry can best be characterized as asserting that the trial court did not follow the model colloquy in Amendment to Florida Ride of Criminal Procedure 3.111(d)(2)-(3), 719 So.2d 873 (Fla.1998). Specifically, Vega asserts the Faretta inquiry was inadequate because he was not informed of the potential sentence he could face, was not informed of the potential limitations in legal resources, was not informed that he would have to abide by the relevant rules of procedure and evidence, and was not told that his access to the state attorney would be reduced compared to an attorney.

The State argues that a Faretta inquiry did not need to be conducted because Vega continuously asserted that he was going to retain a private attorney and never unequivocally indicated that he wanted to represent himself, quoting Blake v. State, 972 So.2d 839, 846 (Fla.2007). As a result, the State asserts the trial court could only have abused its discretion in refusing to reappoint the public defender and grant a continuance if Vega could not proceed pro se. Because Vega had conducted some legal research, had some college education, and knew it was in his best interest to retain an attorney, the State concludes the trial court did not abuse its discretion. This argument was rejected in State v. Young, 626 So.2d 655 (Fla.1993).

In Young, the trial court refused to appoint new counsel and refused to grant an “eleventh-hour” continuance when the defendant refused the services of his third appointed counsel. This resulted in the defendant having to represent himself at trial, with only the aid of stand-by counsel. The supreme court held that while a trial court may “presume that an abuse of the right to assistance of counsel can be interpreted as a request by a defendant to exercise the right of self-representation, a defendant may not be presumed to have waived the separate right of assistance of counsel absent a Faretta inquiry.” Id. at 657. Consequently, and contrary to the State’s assertion, the issue is not whether Vega could proceed pro se, but whether the Faretta inquiry was adequate.

There are no magic words when conducting a Faretta inquiry. See Edenfield v. State, 45 So.3d 26, 30 (Fla. 1st DCA 2010). Accordingly, trial courts are not bound to follow the model Faretta colloquy suggested by the supreme court. Id. Rather, an adequate Faretta inquiry requires ensuring that the defendant knowingly and intelligently waives his right to counsel. See Fla. R. Crim. P. 3.111(d)(2). This requires advising the “defendant of the disadvantages and dangers of self-representation.” Id. Explaining the potential penalty in the event of a conviction is an important factor in emphasizing the dangers of self-representation. However, the failure to inform a defendant of the potential penalties, standing alone, is not necessarily fatal. See Potts v. State, 698 So.2d 315 (Fla. 4th DCA 1997).

The trial court’s Faretta inquiry revealed that Vega was a competent, literate adult with some college education. It also revealed that Vega was unfamiliar with the trial process, but that he had completed some research on the evidence code. Although the trial court advised Vega that it was in his “best interest to have an attorney represent you ... because an attorney knows the procedure and has been trained in the evidence,” it did not inform him of the maximum penalty he faced, or of the pitfalls or dangers that accompany self-representation, or that he would have to abide by the relevant rules of procedure and evidence code. Other than indicating that an attorney is trained in the evidentia-ry and procedural rules, the trial court did not inform Vega of the various advantages of having counsel.

Viewed in its totality, the inquiry can be characterized as ensuring that Vega was competent, literate, and generally explaining the trial process. This is inadequate. A. defendant cannot make an intelligent, knowing waiver of his right to counsel without being informed of the dangers and disadvantages of self-representation. See Faretta, 422 U.S. at 835, 95 S.Ct. 2525; Reeves v. State, 987 So.2d 103 (Fla. 5th DCA 2008); Burton v. State, 596 So.2d 1184 (Fla. 1st DCA 1992).

We acknowledge the plausibility of the State’s suggestion that Vega was attempting to delay the proceedings and abuse the system. Although the trial court indicated a concern that Vega’s numerous continuances were an attempt to delay the proceedings, it did not make any finding to this effect in either its supplemental order denying Vega’s motion to reappoint the public defender, or at the April 13, 2009 hearing. Even if such a finding were made, this still would not excuse the trial court from conducting an adequate Faretta inquiry. See Young, 626 So.2d at 657.

REVERSED and REMANDED FOR NEW TRIAL.

LAWSON, J., concurs.

SAWAYA, J., dissents without opinion.

      . The failure to renew the offer of counsel is not raised as an issue on appeal. It is clear that the trial court had reached the end of its patience with Vega and had no intention of reoffering the services of the public defender.

        . See Segal v. State, 920 So.2d 1279, 1281 n. 1 (Fla. 4th DCA 2006).


text:
    Robert R. CLINTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1080.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.

      James S. Purdy, Public Defender, and Peter A. Ames, Sr., Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Defendant appeals his sentences for ten counts of possession of material depicting sexual performance by a child, one count of lewd and lascivious molestation of a child under twelve years of age, and forty counts of promoting sexual performance by a child. The trial court orally announced at sentencing its finding that Defendant is a sexual predator. We affirm the sentences and conclude that only two aspects of the sentences merit any discussion. First, we note that as to the forty counts of promoting sexual performance by a child, the fifteen-year sentences imposed for each count are concurrent to one another. Second, as to the oral finding that Defendant is a sexual predator, we remand this case to the trial court to make the necessary written findings in accordance with section 775.21(5)(a)l., Florida Statutes (2007).

AFFIRMED; REMANDED.

GRIFFIN, SAWAYA and PALMER, JJ., concur.

      . § 827.071(5), Fla. Stat. (2007).

      . § 800.04(5)(b), Fla. Stat. (2007).

      . § 827.071(3), Fla. Stat. (2007).


text:
    Alton BEAUVAIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2377.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant’s convictions for first-degree murder and robbery with a deadly weapon without further discussion. We reverse the conviction for burglary of a dwelling because the circular jury instruction constituted fundamental error. Lee v. State, 958 So.2d 521 (Fla. 2d DCA 2007). We remand for a new trial on the burglary count.

AFFIRMED in part; REVERSED in part, and REMANDED.

PALMER, TORPY and LAWSON, JJ., concur.


text:
    Cheryl BENNETT, Petitioner, v. JOANNE MARINE, INC., Respondent.
    No. 5D10-3266.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.
    John M. Schwartz, Blumenthal, Schwartz & Saxe, P.A., Titusville, for Petitioner.
    Patricia Leigh McMillan Minoux, of Hayden Milliken & Boeringer, P.A., Miami, for Respondent.
   PER CURIAM.

Cheryl Bennett seeks certiorari review of an order granting Joanne Marine, Inc.’s (“JMI”) motion to compel the release of certain medical records protected by section 397.501(7)(a)5., Florida Statutes (2010). JMI concedes that the order must be quashed and the matter remanded for a hearing.

Accordingly, we quash the order under review and remand the matter to the trial court for further proceedings consistent with the relevant statutes.

CERTIORARI GRANTED; ORDER QUASHED.

MONACO, C.J., ORFINGER and LAWSON, JJ., concur.

      . The Court appreciates the candor of JMI’s counsel.


text:
    Adam Jerome DURR, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3837.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.
    Adam Durr, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

Appellant, Adam Jerome Durr, was tried and convicted of armed robbery with a firearm or deadly weapon and armed burglary of a dwelling. Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000). Since his judgment and sentence became final, Durr has submitted twelve pro se postconviction filings. After affirming the denial of Durr’s most recent pro se rule 3.850 post-conviction motion, we issued a Spencer show cause order directing Durr to demonstrate why he should not be barred from filing further pro se challenges to his convictions and sentences in this case. State v. Spencer, 751 So.2d 47 (Fla.1999). After carefully considering Durr’s response, we find it unpersuasive. We conclude that Durr is abusing the judicial process and should be barred from further pro se filings.

Therefore, we now prohibit Adam Jerome Durr from filing with this court any more pro se pleadings concerning Putnam County, Seventh Judicial Circuit Court case number 99-1558-CF-53. The clerk of this court is directed not to accept any further pro se filings from Durr concerning this case. Any additional pleadings regarding this case will be summarily rejected by the clerk, unless they are filed by a member in good standing of the Florida Bar. See Johnson v. State, 652 So.2d 980, 980 (Fla. 5th DCA 1995) (prohibiting petitioner from filing further pro se pleadings with this court after thirteen challenges to conviction and sentence); Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”).

Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

GRIFFIN, COHEN and PALMER, JJ., concur.


author: ORFINGER, J.

text:
    Keith Michael CASSISTA, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4059.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.

      Keith Michael Cassista, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Keith Cassista appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. He alleges that the trial court improperly sentenced him as a Prison Releasee Reoffender (“PRR”) under section 775.082(9)(a)1., Florida Statutes (2006), because he had not been “released from a state correctional facility” within three years prior to the date that he committed the offense in the instant case. The trial court denied the motion, relying on Cassista’s agreement to a PRR sentence. We reverse with instructions to attach the records that refute Cassista’s claim or to hold an evidentiary hearing.

Cassista pled guilty to burglary of a dwelling and possession of a firearm by a convicted felon. Cassista was sentenced in accordance with a plea agreement, which provided that he would, among other things, serve fifteen years in prison as a PRR on the burglary charge. In his rule 3.850 motion, Cassista contends that his counsel was ineffective for failing to argue that he did not qualify as a PRR. In support, Cassista alleges that in May 1999, he was arrested for burglary of a dwelling, two counts of grand theft and two counts of burglary of a conveyance, and sentenced in May 2001, to thirty-six months in the Department of Corrections (DOC) followed by two years of probation. On August 19, 2003, he was released from DOC and began his probation, but absconded. In October 2005, he was sentenced for violating his probation to thirty-eight months in the DOC with forty-two months jail credit. He claims that he was transported from the St. Lucie County Jail to DOC, but was turned away because no commitment order was sent with him. On November 2, 2005, he was released from the St. Lucie County Jail, and on November 30, 2007, he committed the instant offenses. Cassista argues that because he was effectively sentenced to time served in October 2005 and DOC refused to accept him, he was last released from a state correctional facility in August 2003, more than three years prior to the offenses at issue here.

Under rule 3.850, a defendant is entitled to an evidentiary hearing unless the record conclusively refutes the defendant’s claims. Harich v. State, 484 So.2d 1239, 1240 (Fla.1986). All well-pled allegations must be treated as true, unless rebutted conclusively by the record. Tompkins v. State, 872 So.2d 230, 238 (Fla.2003). Further, “an illegal sentence cannot be imposed even as part of a negotiated plea agreement.” Wheeler v. State, 864 So.2d 492, 492 (Fla. 5th DCA 2004).

To qualify as a PRR, the defendant must have committed or attempted to commit certain enumerated felonies “within 3 years after being released from a state correctional facility operated by the Department of Corrections .... ” § 775.082(9)(a)1., Fla. Stat. (2006) (emphasis added). Cassista contends that the word “release” in the statute does not include being released from a temporary confinement that happens to be in a state prison. Cassista finds support for his position in Brinson v. State, 851 So.2d 815 (Fla. 2d DCA 2003), where the court held that the word “release” can be “defined to mean only actual release from a State prison sentence” and not the physical release from a state prison facility. See also Girtman v. State, 617 So.2d 1168 (Fla. 5th DCA 1993) (holding that temporary custodial detention pending resolution by parole commission of parole violation charge did not constitute release from “other commitment” as used in habitual offender statute).

The plain language of the PRR statute requires the trial court to determine if Cassista was “released from a state correctional facility” within three years prior to committing the offense for which he was sentenced in this case. When a statute is clear and unambiguous, the courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. Koile v. State, 934 So.2d 1226, 1230-31 (Fla.2006). When the statute’s language conveys a clear and definite meaning, statutory interpretation is not used. Instead, the statute must be given its plain and obvious meaning. McKenzie Check Advance of Fla., LLC v. Betts, 928 So.2d 1204, 1208 (Fla.2006). And, when the language of a statute is susceptible of differing constructions, the language must be construed most favorably to the defendant. § 775.021(1), Fla. Stat. (2006); Thomas v. State, 741 So.2d 1246, 1246 (Fla. 2d DCA 1999).

In most cases, it is a simple matter to determine when an individual is released from a state correctional facility. However, offenders are sometimes only temporarily detained. Unless those detentions “ripen” into reimprisonment, they are excluded from consideration for PRR purposes. See Brinson, 851 So.2d 815; Girtman, 617 So.2d 1168. That is what Cassista alleges occurred here.

Given the incomplete record before us, we cannot determine when Cassista was released from a state correctional facility. Accordingly, we reverse the order denying Cassista’s rule 3.850 postconviction motion and remand the matter for further consideration. In the event that Cassista does not qualify as a PRR, the State should have the option of withdrawing from the plea agreement and taking him to trial on all of the original charges as the PRR designation was part of an agreed-upon plea. See Williams v. State, 650 So.2d 1054, 1055 (Fla. 1st DCA 1995); Jolly v. State, 392 So.2d 54, 56 (Fla. 5th DCA 1981).

REVERSED and REMANDED.

SAWAYA and COHEN, JJ., concur.

      . On occasion, an offender’s sentence expiration date might be relevant if for example, the offender, while committed to a state correctional facility, is temporarily transported to a hospital for treatment, or to a county jail to face unrelated charges. If that offender’s state prison sentence expires while he or she is temporarily residing in a hospital or county jail, we would have no difficulty in concluding that the offender was constructively in a state prison facility when his sentence expired for PRR purposes.


author: TORPY, J.

text:
    Gerald BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4316.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.
    Gerald Boyd, East Palatka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

In this rule 3.800 jail credit case, Appellant made a claim that he had been shorted two days of jail credit for the time he spent in the county jail between his arrest and sentencing. Appellant’s motion was straight-forward. He gave the date on which he had been arrested for the charges in Putnam County, and he claimed that he had been continuously incarcerated in the Putnam County jail on these charges from that date until the date on which he was sentenced. This motion was legally sufficient because it affirmatively alleged “where in the record the information [could] be located and explain[ed] how the record demonstrate^] entitlement to relief.” Petscher v. State, 936 So.2d 639, 639 (Fla. 5th DCA 2006) (Orfinger, J., concurring). The trial judge summarily denied the request, concluding that the “[c]ourt file does not show conclusively he was given the wrong number of day’s credit.” The trial judge offered no further explanation, nor did he attach records to negate the claim. We reverse.

Once the movant makes a legally sufficient allegation that he did not receive the proper credit for time served, it is the trial court’s obligation to conclusively negate the claim by attaching the portion of the record to refute the claim. Cheatum v. State, 992 So.2d 877 (Fla. 5th DCA 2008). This is because we only receive an abbreviated record in proceedings of this nature, and we are required by rule 9.141(b)(2)(D) to reverse any summary denial unless the record “shows conclusively that the appellant is entitled to no relief....”

Although we would ordinarily remand this case to the trial court to either grant the relief or provide the proper support for his decision to deny relief, in this case, the State has spared the court system any further burden by candidly conceding that an apparent mathematical error occurred, and that Appellant is entitled to the two additional days of jail credit.

Accordingly, we remand this case with instructions to credit Appellant with two additional days.

REVERSED AND REMANDED.

MONACO, C.J., and LAWSON, J., concur.


text:
    Tony ROGERS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-293.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.
    Tony Rogers, Zephyrhills, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and shall cause the earlier appeal assigned 5D10-2992 to be reinstated in case number 2008-03106CFAWS, in the Circuit Court in and for Volusia County, Florida. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED/APPEAL REINSTATED.

GRIFFIN, PALMER and ORFINGER, JJ., concur.


author: WARNER, J.

text:
    Craig TRAPP, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-225.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The appellant challenges his convictions for false imprisonment and carjacking, claiming that the trial court erred in permitting the prosecutor to cross-examine him on a prior conviction of perjury. The prosecutor maintained that Trapp had opened the door to this by testifying that the victim could be charged with perjury if she testified. We conclude that the court erred in permitting the appellant to .be cross-examined in this manner, and we cannot conclude that the error was harmless.

Jennifer Magala lived with her child at the Salvation Army residence. One day she got into her car to go get some cigarettes at a local liquor store with a drive up window. When she arrived at the drive up window, a man whom she said she had never seen before (appellant Trapp) got into the passenger side of her car. He had his hand under his shirt, and she thought he had a gun. He told her to drive away. She tried to park the car, but he made her pull into a driveway close to some pre-construction homes. She got out of the vehicle with her child and tried to retrieve her purse and the child’s bag. Trapp told her to leave it, and he drove off in the car. She had a cell phone in her pocket and immediately called 911. The tape of the 911 call was played for the jury. A police officer arrived very quickly, and she gave him a description of the man, the vehicle and the license plate. A couple of days later she was contacted by police and asked to view a photo line-up from which she identified the defendant, Craig Trapp. Later, her damaged car was recovered.

A couple of months before the trial Trapp called her on her cell phone, telling her not to testify. He made a few calls to her and at one point told her that if she lied, the authorities would take her child away from her.

Only one independent witness testified. Michael McGirt was at his home across the street from where Magala pulled into the driveway and got out of the car. McGirt testified that Magala looked shocked as the man, whom McGirt was able to identify as Trapp, drove off with the vehicle.

Trapp testified in his defense, and his version of events was dramatically different than that of Magala. He maintained that he knew Magala from the Salvation Army, knew that she had three children, and knew the father of her baby. On the day of the incident, he met her outside of the Salvation Army building, and she asked him to help her get some cocaine. After discussing the logistics of acquiring it, he told her he would use her car to go to a housing project where he thought he could obtain it. He denied getting into her car at the liquor store, nor did he use her car without her permission. He didn’t purchase cocaine, because when he got to his source, that person didn’t have any. He was going to go to another place to try to get it. He never called Magala to say he would be late. When he got to the second source for cocaine no one was there, which was a sign that the police had been by. He then went joy riding for a couple of days, drinking, and to visit some friends. Eventually, he ran out of gas. When he flagged down a police officer, he found out that Magala had reported the car as stolen. During his direct testimony, he admitted he had previously been convicted of ten felonies, two of which were crimes of dishonesty.

He admitted that he called Magala four times prior to the trial. On cross-examination, he said he called to say he was sorry because he betrayed her and lied to her. When he found out there were two kidnapping charges against him, he accused her of lying. He told her he didn’t kidnap her, didn’t carjack the car, and didn’t rob her. He denied that he had ever told Magala not to testify. He said she asked him, “What do you want me to do? Sign the waiver?” He said he told her, “No, don’t sign the waiver. Go down and tell the truth or leave it alone.” He told her, “If they catch you in any lies, they’ll charge you with perjury. You will go to jail. Your baby will go to HRS.”

At that point the prosecutor asked, “Let’s talk about perjury,” to which defense counsel posed an objection. The prosecutor claimed that by mentioning the possibility of the victim’s perjury, defendant had opened the door for the prosecutor to question Trapp about a prior perjury conviction of his own. The court overruled the objection, and the prosecutor elicited that Trapp had been convicted of perjury in Mississippi. The prosecutor used this admission in closing argument. She argued that the jury had the opportunity to hear Magala testify, and there was no evidence that she was convicted of a crime. However, when the jury looked at the credibility of Trapp, the prosecutor told them that they should remember that he was a ten-time convicted felon and that two of those crimes involved dishonesty. The prosecutor argued, “You have been able to hear he has been convicted of perjury, and perjury is lying on the stand. He wanted you to believe during the course of the testimony that the victim came in here and committed perjury because he was just borrowing her vehicle. I want you to really think-about the credibility of the story.”

The jury deliberated, requiring the read back of both the independent witness’ testimony and Trapp’s testimony. They informed the court that they were unable to come to an agreement on a verdict. The court gave an Allen charge to which neither side objected, and the jury returned to deliberate and ultimately returned a verdict. On the two kidnapping charges the jury found Trapp guilty of the lesser included charges of false imprisonment. On the count charging carjacking, they found him guilty as charged.

The trial court subsequently sentenced-Trapp. Prior to sentencing, Trapp made a pro se motion for new trial, as did defense counsel. Trapp asserted that the Mississippi perjury charge was actually giving a false name. Both motions were denied. Trapp was sentenced to ten years on the two false imprisonment convictions and, for'the carjacking, he was sentenced as a habitual offender to life with a 30-year minimum mandatory as a prison re-leasee reoffender. He now appeals, arguing that the trial court erred in permitting the state to elicit testimony regarding his prior conviction in Mississippi for perjury.

Evidentiary rulings on the admission of evidence of other crimes are reviewed under an abuse of discretion standard. Zerbe v. State, 944 So.2d 1189, 1193 (Fla. 4th DCA 2006). However, the trial court’s discretion is restricted by the rules of evidence. Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

Subsection 90.610(1) of the Florida Evidence Code provides:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the .punishment....

In Bobb v. State, 647 So.2d 881 (Fla. 4th DCA 1994), we explained that this provision permitted a witness to be questioned regarding prior convictions only as to the number of felonies but not as to whether they involve crimes of dishonesty. A party could not ask a witness whether he or she had been convicted of felonies involving dishonesty or false statement, because the legislature had permitted impeachment by prior felonies, regardless of type. We said:

The subsection makes no distinction as to categories of felonies, but limits use of misdemeanors to the category of ones involving dishonesty or false statement. We believe that allowing further inquiry into whether the felony involved dishonesty or false statement would have the impermissible and unintended effect of elevating certain felonies over others. In essence, we would be approving a more extensive cross-examination of one who has been convicted of grand theft, a felony involving dishonesty, than one convicted of murder, a felony not involving dishonesty or false statement. We cannot read into the statute or the subsection, as adopted by the supreme court, an intent to depart from the long-standing practice of restricting inquiry into the nature of the offense. Accord Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982).

Id. at 884. As the statute permits inquiry into the number of misdemeanors but only those involving crimes of dishonesty or false statement, we also clarified that the witness can be asked only two questions. First, “have you ever been convicted of a felony?” Second, “have you ever been convicted of a misdemeanor involving dishonesty or false statement?”

If the witness denies having been convicted, or misstates the number of convictions, counsel may impeach by producing a record of past convictions. However, if the witness admits the conviction, then the inquiry by his adversary may not be pursued to the point of naming the- crime for which he was convicted. Id. See also Dessaure v. State, 891 So.2d 455 (Fla.2004) (citing Fulton v. State, 335 So.2d 280 (Fla.1976)). Because Trapp admitted the number of convictions, including that two were for dishonesty, the prosecutor was not allowed to elicit the nature of the convictions.

The state, however, contends that a witness can also be asked whether the crime is one of perjury, citing Johnson v. State, 361 So.2d 767 (Fla. 3d DCA 1978). There, the court found that while generally the nature of the conviction may -not be revealed, where the conviction was for perjury, an exception is made because of its greater weight against the credibility of a witness than any other crime. However, Johnson interpreted section 90.08, the predecessor to section 90.610. Section 90.08 specifically permitted a perjury conviction to be revealed. “Evidence of such conviction, including the fact that the prior conviction was for the crime of perjury, may be given to affect the credibility -of the said witness, and such conviction may be proved by questioning the proposed witness or, if he deny it, by producing a record of his conviction.” Section 90.610(1) removed the special status of perjury convictions. As noted in Bobb, the section does not elevate one type of felony over another. No cases since the amendment of the statute and revision of the rule have maintained the special status of perjury. Therefore, we adhere to the general and longstanding rule that the nature of the specific conviction may not be inquired into, even if it is a crime of perjury.

The state argues, as it did at trial, that even if the prosecutor may not have been able to impeach with the specific reference to the perjury conviction, Trapp opened the door through his statement that the victim would commit perjury if she testified against him. In order to “open the door” to the specific nature of the prior conviction, the defense must first offer “misleading testimony or make a specific factual assertion which the state .has the right to correct so that the jury will not be misled.” Bozeman v. State, 698 So.2d 629, 630 (Fla. 4th DCA 1997). “The ‘opening the door’ concept is based on considerations of fairness and the truth-seeking function of a trial, where cross-examination reveals the whole story of a transaction only partly explained in direct examination.” Id. at 631.

We do not understand how Trapp’s admission that he told the witness that if she lied, the authorities would charge her with perjury constitutes opening the door to the prosecutor questioning him about his own conviction of perjury. Trapp did not try to mislead the jury as to a specific factual assertion. As to his prior convictions, he testified truthfully. The jury was not misled in the slightest by Trapp’s asserting that if Magala lied she could be charged with perjury. The door was not opened, and the trial court erred in permitting the prosecutor to bring out the perjury conviction.

The error was not harmless beyond a reasonable doubt, because we cannot say that the error did not affect the verdict. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). First, the improper admission of collateral crime evidence is presumed harmful. See Czubak v. State, 570 So.2d 925, 928 (Fla.1990). Second, the prosecutor not only specifically elicited the perjury conviction, but she emphasized the conviction in closing argument as a reason that the jury should reject Trapp’s testimony in favor of Magala’s version of events. She specifically referred to the conviction as “lying on the stand” even though the conviction was actually for giving a false name to a police officer. Thus, the prosecutor used the crime of “perjury” to sway the jury not to believe Trapp.

This case primarily turned on a conflict between Magala and Trapp as to who was telling the truth. Trapp’s version could not be discounted as completely fanciful. He knew about Magala, including the number of her children. He had her cell phone number and was calling her after the incident. All of this indicated that Magala may not have been telling the truth about not knowing him. The jury clearly struggled with the case, and the court had to resort to an Allen charge. For all of these reasons, the state has not carried its burden of proving that the error in referring to the perjury conviction was harmless beyond a reasonable doubt.

We reverse appellant’s conviction and sentence and remand for a new trial.

POLEN and LEVINE, JJ., concur.

      . As it turns out, the conviction labeled "perjury” was not what would be classified as perjury in Florida. The defendant gave a false name to a police officer in Mississippi, the equivalent of a misdemeanor in Florida.


text:
    Shelley GOLDMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2782.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.

      Joseph Titone and Michael Hursey, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Shelley Goldman appeals the denial of a rule 3.850 motion for postconviction relief. We agree that the trial court erred in summarily denying the motion.

Following a jury trial, Goldman was convicted of DUI manslaughter unlawful blood alcohol/leaving the scene of an accident; DUI serious bodily injury; and leaving the scene of an accident with injury. On direct appeal, she raised seven issues and this court reversed on one point agreeing that the convictions for DUI man-slaughterAeaving the scene of an accident and leaving the scene of an accident involving injury violated the prohibition against double jeopardy. The conviction for leaving the scene of an accident involving injury was reversed and the case was remanded for resentencing. Goldman v. State, 918 So.2d 442 (Fla. 4th DCA 2006). Goldman was resentenced on March 31, 2006, to 15.75 years followed by 10 years probation.

Goldman filed a 3.850 motion and supplements to her motion raising a total of eleven claims. The trial court initially granted an evidentiary hearing on one issue, ground eight, and reserved ruling on Goldman’s claim of cumulative error. However, the court subsequently granted the state’s motion for rehearing and concluded claims eight through eleven were untimely and were insufficient or refuted by the record.

Contrary to the circuit court’s ruling, Goldman’s claims regarding the failure to retain a toxicologist and to investigate the chain of custody of the blood evidence are legally sufficient and not refuted by the record.

In claim six, Goldman alleged her trial attorney provided ineffective assistance by failing to retain a toxicologist to challenge the blood alcohol analysis. Goldman’s supplemental postconviction motion summarized testimony at trial that was favorable to Goldman and would support a defense that the blood results were inaccurate. When she was interviewed by Officer Skirvin at the scene, Goldman said she drank two and a half beers between 9 p.m. and midnight and a blood test would prove it. According to a police report, the accident occurred around 2:48 a.m. Skirvin testified that she did not appear to be intoxicated. Her eyes appeared bloodshot and she seemed unsteady, but the officers agreed this would be consistent with her crying and typical of someone involved in an auto accident involving a death.

Regarding the blood samples, there was a gap in time on the property receipt of 31 to 43 hours between the blood draw and the time the property receipt indicates the samples were placed in refrigeration. There was also a discrepancy between the property receipt and testimony at trial regarding who the officer turned the blood samples over to. One sample had clotted and was not usable. The other sample indicated a blood alcohol content (BAC) of 0.20. The state’s expert testified that a person with this blood alcohol level would exhibit confusion, staggering, impaired cognitive function and slurred speech. Goldman did not exhibit these signs. Officers noticed a faint odor of alcohol and she appeared upset.

The supplemental motion alleged that Goldman has now retained a toxicologist who would testify that improper handling of the blood samples, such as storing at high temperatures, can result in a higher BAC reading.

Goldman argued that trial counsel should have presented expert testimony to refute that Goldman was intoxicated at the time of the accident. Because defense counsel failed to call a toxicologist, Goldman was unable to present to the jury scientific evidence about what happens if blood samples are not properly refrigerated. Goldman believes she could have successfully challenged the BAC evidence, and as a result, the state would have to prove intoxication through the officers’ testimony. The officer who interviewed her indicated that she did not appear to be intoxicated, and no roadside sobriety tests were administered. Moreover, she argues if they had believed she was intoxicated, the officers would have arrested her at the scene instead of releasing her. Absent the BAC evidence, Goldman believes the state did not have sufficient evidence of intoxication and the jury would have acquitted her of the DUI manslaughter charges and DUI serious bodily injury.

Goldman amended this claim in reply to the state’s response and attached a report from toxicologist Lawrence Masten, which explained why he believed the blood results in this case were unreliable and very likely higher than Goldman’s actual blood alcohol level at the time of collection.

The state argued this claim was refuted by the record because when the defense rested at trial, counsel indicated they had “blood people” and other experts available, but had decided not to call these witnesses. However, defense counsel did not file a witness list naming any toxicologist or blood expert. In addition, according to Goldman’s amended postconviction claim, her trial attorney has since admitted that he did not retain a toxicologist.

If defense counsel never consulted a toxicologist and Goldman did not know that there was a basis to challenge the blood results, the waiver of her right to present evidence was not knowing and voluntary. Even assuming defense counsel had investigated this issue, the failure to present evidence that could explain why the BAC results could be wrong where Goldman otherwise had no good defense was not a reasonable strategy. See, e.g., Cabrera v. State, 766 So.2d 1131, 1134 (Fla. 2d DCA 2000).

Based on the cross-examination of the state’s toxicologist at trial, it appears defense counsel was not prepared to challenge the BAC results. Counsel asked the toxicologist only one question that addressed this issue, whether improper storage and handling could affect the reading, and the expert stated it was possible. Counsel had no further questions for the expert and it appears the jury did not hear any evidence that could explain why a sealed tube could yield unreliable test results.

The state also argued this claim is speculative. However, Goldman has pointed to a number of factors that would support her belief that the blood may have been mishandled and the test results were inaccurate including her behavior at the scene, the inability to collect a full vial of blood (a sign of loss of vacuum in the tube, which could lead to contamination of the sample), the time that elapsed between collection and delivery to the property room, and the clotting of the blood in- one tube,-which could indicate mishandling. Goldman’s handwriting at the scene was inconsistent with a person having a blood alcohol level nearly three times the legal limit. In her statement to police she indicated that she wanted a blood test because it would prove she had only three beers. The state’s expert testified that a person Goldman’s size would have to drink six and a half beers to have a 0.20 BAC. Goldman was detained for five hours and made no request to use a restroom.

There are sufficient reasons apparent from the record to question the BAC results.. Goldman showed. a reasonable probability the outcome would have been different, if the jury had received expert testimony about how temperature, contamination from the loss of vacuum in the tube, and other mishandling could increase the amount of alcohol in the sample. This testimony could reconcile the conflicting evidence and create a reasonable doubt about whether Goldman’s blood alcohol level exceeded the legal limit. This was the state’s main evidence of intoxication. The other signs of impairment were consistent with non-impairment.

In claim seven, Goldman raised a related issue arguing that trial counsel provided ineffective assistance by failing to adequately investigate the chain of custody of the blood samples. The evidence at trial did not indicate how the blood was stored during all time periods before testing, and there were some discrepancies between the chain of custody testimony at trial and the property receipt. Goldman did not show a probability of tampering or grounds to exclude the evidence based on the chain of custody, and she did not show that the storage conditions did not comply with the implied consent law. However, investigation of the handling and storage of the blood samples could have explained the seemingly anomalous test results. To the extent this claim is related to claim six, it is legally sufficient and it is not refuted by the record.

Finally, Goldman raises a claim of cumulative error pointing to other alleged deficiencies by trial counsel. Several of Goldman’s claims indicate that counsel may have relied on an unavailable defense and misled the jury about evidence the defense would present. Goldman may not have satisfied the prejudice prong of Strickland in each of these claims individually. However, taken together in light of the legally sufficient claims of ineffective assistance of counsel in grounds six and seven, we cannot say that Goldman was not prejudiced by cumulative errors in this case. See Henry v. State, 652 So.2d 1263 (Fla. 4th DCA 1995).

We reverse and remand for an eviden-tiary hearing on claims six and seven and Goldman’s claim of cumulative error.

Reversed and Remanded.

HAZOURI, MAY and DAMOORGIAN, JJ., concur.

      . The property receipt did not indicate whether the samples were received at 11 a.m. or p.m.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: CIKLIN, J.

text:
    Vernell ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-817.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Vernell Robinson appeals his conviction and sentence for possession of more than twenty grams of cannabis. Robinson argues that the trial court erred by denying Robinson’s motion for judgment of acquittal and by excluding the testimony of Robinson and his brother. The trial judge excluded the testimony because it found Robinson had failed to give the state notice of his intent to claim an alibi. Robinson, however, was not required to file a notice of alibi in this case. Robinson’s brother was not presenting an “alibi” as contemplated by the applicable rule but rather a general denial of criminality and testimony that Robinson simply was not present at the crime scene. Robinson was not required to notify the state of his own alibi testimony. Because the excluded testimony went to the very heart of Robinson’s defense and resulted in a deprivation of his right to be heard in his own defense, we find that this error was not harmless, and reverse and remand for a new trial.

Robinson was charged by information with three counts relating to possession of controlled substances. Counts I and III alleged possession of cocaine and cannabis. Count II charged Robinson with possession of cannabis with intent to sell. Before trial, the state nolle prossed counts I and III.

At a jury trial, Hollywood Police Officer Gregory Forsyth and Detective Robert Wolfkill both testified that during the early morning hours of February 23, 2006, they were in separate unmarked vehicles conducting surveillance on the residence of Robinson’s parents when they observed Robinson exit the residence and approach a garbage can. The officers testified that Robinson first looked all around. He then lifted the lid of the garbage can, took out a white plastic trash bag, removed a bag from under his shirt, put the bag in the garbage, and then replaced the white trash bag on top. Subsequently, Robinson turned and went back into the house. After the officers did not see anyone else approach the garbage can, they went to investigate and found a gallon-size Ziploc bag containing a green leafy substance under the white plastic bag inside the garbage can. The substance was later identified as 382 grams of cannabis.

After the state rested its case, defense counsel moved for a judgment of acquittal, arguing that the state’s evidence was not inconsistent with Robinson’s disposing of marijuana in the trash to keep it from falling into the hands of children.

After the trial court denied Robinson’s motion and prior to defense counsel presenting Robinson’s defense, the state moved to “exclude the testimony of defense witnesses.” The state’s grounds were relevancy and failure to give notice of alibi. Defense counsel proffered that Robinson’s brother, Dion Robinson, whose name was on the defense witness list, would testify that he was at them parents’ house in the early morning hours of February 23, 2006, and that Robinson was not there at the time. The trial court ruled that Dion Robinson could testify as to his observations but not to the “alibi” that the defendant was not there. Defense counsel limited her questioning of Robinson’s brother accordingly.

Subsequently, Robinson took the stand and testified that he* could not have been the person who approached the garbage can and threw something away that morning as he “wasn’t even there.” The state objected again to Robinson’s presenting an alibi without giving notice. Following a bench conference, the trial court said in front of the jury, “Let’s go. Finish up.” The trial court never instructed the jury to disregard Robinson’s previous testimony.

The jury found Robinson guilty of the lesser included offense of possession of more than twenty grams of cannabis. The trial court entered a final judgment based on this verdict and sentenced Robinson to the maximum five years for the third-degree felony conviction.

Judgment of Acquittal

Robinson’s first argument on appeal is that the trial court erred in denying his motion for judgment of acquittal. “A de novo standard of review applies in reviewing a motion for judgment of acquittal.” Richards v. State, 37 So.3d 925, 926 (Fla. 4th DCA 2010) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). “In moving for a judgment of acquittal, a defendant admits the facts in evidence and every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence. A court should grant a motion for judgment of acquittal only if ‘the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.’ ” Id. (citations omitted).

We have previously recognized that temporary control of contraband for the purpose of legal disposition by throwing it away, destroying it, or giving it to police can be a valid defense to the crime of possession of a controlled substance. See Ramsubhag v. State, 937 So.2d 1192, 1194-95 (Fla. 4th DCA 2006).

In Stanton v. State, 746 So.2d 1229 (Fla. 3d DCA 1999), the Third District reversed a conviction for possession of cocaine after concluding that the evidence was legally insufficient to support the conviction. Id. at 1229-30. The undisputed fact in that case was that the defendant had approached a uniformed police officer and turned over a cocaine rock. The court held that even considering the disputed facts, the evidence was legally insufficient because the court was “unable to see any plausible explanation for this act, other than, as [the] defendant said, to turn it over to proper authorities and offer to assist in the apprehension of the drug dealer.” Id. at 1230.

The facts here, however, are distinguishable from Stanton. Here, the police officers observed Robinson exit his parents’ house at 3 a.m. with a bag or package hidden underneath his shirt. They saw him look around carefully as though to make sure no one was watching him, remove a white trash bag from the garbage, carefully place what he had hidden beneath his shirt into the canister, and then put the white trash bag back on top. Under these facts, there are “plausible explanation[s] for this act” other than that Robinson was trying to legally dispose of marijuana over which he had only temporary control. For example, Robinson may have placed the marijuana in the trash can as a prearranged drop off spot as part of a drug transaction. Or Robinson may have placed it there as a temporary hiding place. Thus, considering the evidence in a light most favorable to the state, the state presented sufficient evidence to establish a prima facie case based on both actual and constructive possession. Therefore, we affirm the trial court’s denial of Robinson’s motion for judgment of acquittal.

Notice of Alibi

Robinson also argues that the trial court erred when it limited the testimony of both his brother and himself because of Robinson’s failure to provide notice of alibi. We agree.

The trial court excluded Robinson’s brother’s testimony based on the state’s assertion that Robinson had failed to file a notice of intent to rely on an alibi as required by Florida Rule of Criminal Procedure 3.200. Robinson’s brother, however, was not an alibi witness as contemplated by the rule. Rule 8.200 requires that a defendant include in his or her written notice “specific information as to the place at which the defendant claims to have been at the time of the alleged offense.” Fla. R. Crim. P. 3.200.

Robinson’s brother, however, was not going to testify as to Robinson’s location (or whereabouts) at the time of the offense. Thus, Robinson’s brother was not an alibi witness, and the trial court erred in sustaining the state’s objection to his testimony. See State ex rel. Mitchell v. Walker, 294 So.2d 124, 127 (Fla. 2d DCA 1974) (“An alibi,’ as contemplated by rule 3.200, necessarily means that the defendant will attempt affirmatively to establish not only that he was not at the scene of the crime involved but that, in fact, at the time thereof he was elsewhere, at a particular place sufficiently distant from the scene of the crime, so that he could not possibly have been present at its perpetration.” (footnote and citation omitted)).

The trial court additionally erred in effectively sustaining the state’s objection to Robinson’s testifying on his own behalf that he was not at his parents’ house at the time the officers made then-observations. A defendant may testify to his own activities without filing a notice of alibi if the defendant himself intends to be the sole alibi witness. See Fla. R. Crim. P. 3.200 (“If a defendant fails to file and serve a copy of the notice as herein required, the court may exclude evidence offered by the defendant for the purpose of providing an alibi, except the defendant’s own testimony.” (emphasis added)); White v. State, 356 So.2d 56, 57 (Fla. 4th DCA 1978). Furthermore, as previously indicated, Robinson was not presenting an “alibi” as contemplated by rule 3.200 because he was only testifying that he was not at the scene of the crime. See Mitchell, 294 So.2d at 127.

Unfortunately, the state further compounded the error by emphasizing during closing arguments that Robinson took the stand but “didn’t say anything.” See Mor gan v. State, 700 So.2d 29, 30-31 (Fla. 2d DCA 1997) (“This error was further compounded by the prosecutor’s closing remarks .... The state’s improper comments created the impression that [the defendant] had asserted a defense and then failed to prove that defense.”).

In this case, Robinson’s theory of defense was misidentifícation. With Robinson’s brother prevented from testifying that Robinson was not at their parents’ house that evening and with defense counsel unable to rebut the state’s contention during closing that Robinson had not testified that he was not there, Robinson was prevented from properly asserting his defense. As such, under the facts of this case, the exclusion of the testimony was not harmless. Accordingly, we reverse for a new trial.

We have considered Robinson’s remaining point on appeal and reject it without further discussion.

Reversed and remanded for a new trial.

POLEN and LEVINE, JJ., concur.

      . As the jury only convicted Robinson of the lesser included offense of possession, we do not need to analyze whether the evidence was sufficient to prove the "intent to sell” element of the charged crime.

      . Florida Rule of Criminal Procedure 3.200 reads in pertinent part:
      On the written demand of the prosecuting attorney, ... a defendant in a criminal case who intends to offer evidence of an alibi in defense shall ... file and serve on the prosecuting attorney a notice in writing of an intention to claim an alibi, which notice shall contain specific information as. to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or the defendant's attorney, the names and addresses of the witnesses by whom the defendant proposes to establish the alibi.... If a defendant fails to file and serve a copy of the notice as herein required, the court may exclude evidence offered by the defendant for the purpose of providing an alibi, except the defendant's own testimony

      Fla. R. Crim. P. 3.200 (emphasis added).