text:
    Richard WIGHARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1203.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2011.

      Richard Wighard, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Richard Wighard, Appellant, seeks review of the trial court’s summary denial of his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We reverse.

In 2000, Appellant was sentenced as a habitual felony offender (“HFO”) for the sale of cocaine, a second-degree felony, to sixty months’ incarceration, followed by five years’ probation. Following his release from the Department of Corrections on that sentence, Appellant’s probation was revoked and in September 2008, he was sentenced to ten years’ incarceration. Notably, the trial court did not pronounce at sentencing that Appellant was being sentenced as a HFO, nor did his judgment and sentence reflect a HFO sentence. Appellant appealed his judgment and sentence and this court affirmed per curiam. See Wighard v. State, 8 So.3d 1151 (Fla. 5th DCA 2009).

Appellant subsequently filed a motion to correct illegal sentence pursuant to Florida Rule of Appellate Procedure 3.800(a), arguing that his ten-year sentence was illegal because it exceeded the sentencing guidelines maximum range without written departure reasons. He acknowledged his original HFO sentence from 2000, but claimed that the State elected not to seek a HFO sentence at his violation of probation (“VOP”) sentencing, and the trial court assented. Hence, his ten-year VOP sentence was a straight ten-year sentence with no oral or written HFO designation. Furthermore, because the straight ten-year sentence exceeded his guidelines maximum sentence, it followed that written departure reasons were necessary. Without these reasons, Appellant argued, his ten-year sentence was illegal.

The trial court rejected Appellant’s rule 3.800(a) argument based on its finding that the HFO determination at his original sentencing in 2000 carried over to his VOP sentencing in 2008. The trial court reasoned that the ten-year VOP sentence was a legal HFO sentence outside the sentencing guidelines which did not require written departure reasons. On appeal, we concluded the upward departure sentence was not an issue cognizable in a rule 3.800(a) proceeding and affirmed. See Wighard v. State, 34 So.3d 782 (Fla. 5th DCA 2010).

Appellant initiated the instant proceeding by filing a rule 3.850 motion, arguing that his attorney was ineffective for the following reason:

Defendant’s attorney failed to object to the 10-year sentence imposed by the VOP sentencing court — a sentence which FAR EXCEEDS the 18.35 to 31.85 prison month recommendation range of the controlling 1998, Rule 3.991, sentencing guidelines scoresheet that was in effect on the date of Defendant’s substantive “sale of cocaine” offense— when there are no written reasons for an upward departure sentence, nor is there any oral pronouncement of an enhanced sentence transcribed from any VOP judicial proceeding, to justify a sentence outside of said recommended sentencing range.

The trial court denied Appellant’s petition and this appeal followed.

In our view, the outcome of this case is governed by the supreme court’s recent decision in State v. Akins, 69 So.3d 261 (Fla.2011), in which the court affirmatively answered the following certified question:

IF A DEFENDANT HAS BEEN DECLARED TO BE A HABITUAL OFFENDER BEFORE THE IMPOSITION OF HIS INITIAL SPLIT SENTENCE, WHEN THE DEFENDANT LATER VIOLATES PROBATION AND HAS HIS PROBATION REVOKED, DOES THE DEFENDANT LOSE HIS STATUS AS A HABITUAL OFFENDER IF THE TRIAL COURT DOES NOT REPEAT THIS STATUS AT THE SENTENCING HEARING ON VIOLATION OF PROBATION?

The State argues Akins is inapplicable because it involved a double jeopardy issue, one not raised or argued by Appellant. We do not read Akins that narrowly. In contrast, the instant record reveals that the trial court did not designate Appellant as a HFO during its oral pronouncement at the VOP sentencing, or in the written judgment and sentence. Thus, the only relevant factual distinction between Akins and the instant case is that the trial court in Akins ultimately amended the defendant’s written VOP sentence several months after it was imposed by adding the HFO designation even though it was never orally imposed. Here, there was no oral designation of Appellant’s HFO status during the VOP sentencing, and it appears that his written VOP sentence did not reflect a HFO designation. Appellant is currently serving a ten-year, non-HFO prison term despite the fact that his maximum sentencing guidelines scoresheet was 31.85 months. Accordingly, Appellant’s sentence facially exceeds the sentencing guidelines maximum without written departure reasons.

Akins rejects any notion that Appellant’s original HFO designation may have carried over to his VOP sentencing proceeding. Instead, Akins holds that the trial court must restate this designation during the VOP sentencing or the HFO status is lost. Id. at 266. Moreover, Akins dictates that the trial court cannot now attempt to impose the HFO designation on Appellant without running afoul of double jeopardy protections. Appellant is entitled to resentencing.

REVERSED and REMANDED.

ORFINGER, C.J., PALMER and COHEN, JJ., concur.

      . The offenses occurred on September 3, 1998, before the Criminal Punishment Code became effective (for offenses on or after October 1, 1998). Therefore, Appellant was originally sentenced under the 1995 Sentencing Guidelines.


source: Caselaw Access Project

author: PER CURIAM. THOMAS, J.,

license: Public Domain

text:
    Elijah JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1568.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2011.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was sentenced to three years in prison for driving while his license was cancelled, suspended, or revoked. He does not challenge his conviction on appeal; he only challenges his sentence. He contends that the trial court erred in imposing a prison sentence because the record does not support the court’s finding pursuant to section 775.082(10), Florida Statutes (2009), that a nonstate prison sanction would present a danger to the public. Alternatively, Appellant contends that his prison sentence violates Apprendi and Blakely because it exceeds the non-state prison sanction required by section 775.082(10) and is based on a finding made by the court rather than the jury. We reverse on the first issue and, thus, do not reach the Apprendi/Blalcely issue.

On July 24, 2009, Appellant was observed by a law enforcement officer driving his brother’s pick-up truck. Appellant was the only occupant in the truck, and after the officer observed Appellant illegally park the truck, he made contact with Appellant and asked for his driver’s license. Appellant replied that he did not have a valid license, and after the officer checked Appellant’s information against the records of the Department of Highway Safety and Motor Vehicles, he arrested Appellant as a habitual traffic offender.

Appellant proceeded to trial and the jury returned a guilty verdict. The trial court noted that Appellant’s conviction was a third-degree felony, subjecting him to up to five years in prison even though he only had 8.2 points on his sentencing score-sheet. Appellant argued that, pursuant to section 775.082(10), the court could not impose a prison sentence absent a finding that a nonstate prison sanction could present a danger to the public. The trial court thereafter sentenced Appellant to three years in prison based on the following written findings:

1. Defendant has evinced an unwillingness to discontinue driving without a driver’s license, despite repeated punishment by the Courts;
2. Driving without a license endangers the public due to the probability of Defendant’s attempting to elude law enforcement due to his suspended license, which could lead to a high speed automobile chase;
3. Another danger to the public is that Defendant’s insistence on driving without a license also requires that he drive without automobile insurance, as an unlicensed driver, such as Defendant, cannot have insurance to assist a victim should he be involved in an accident; and
4. Defendant’s unavailability to drive due to incarceration in State prison is the only method open to the Court for the protection of the public from Defendant’s irresponsible and dangerous behavior.

Appellant contends that these findings are not supported by the record and, therefore, the trial court erred in imposing a prison sentence under section 775.082(10). We agree.

Section 775.082(10) provides:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

The clear purpose and obvious intent section 775.082(10) was to keep certain offenders out of the state prison system. The statute operates similarly to the pre-Criminal Punishment Code sentencing guidelines by establishing a presumptive sentence from which the trial court may deviate up to the statutory maximum in limited circumstances and only if the court explains its reasons in writing. The first sentence of the statute provides that the presumptive mandatory sentence for qualifying offenders is a “nonstate prison sanction.” § 775.082(10), Fla. Stat. The statute does define “nonstate prison sanction,” but the phrase is commonly understood to mean probation, community control, or imprisonment in the county jail for up to one year. The second sentence of the statute allows the trial court to deviate from the presumptive sentence and impose a prison sentence, but only if the court specifically finds that sentencing the offender to a nonstate prison sanction could present a danger to the public. Id. The trial court’s findings must be in writing. Id.; see also Hutto v. State, 50 So.3d 85 (Fla. 1st DCA 2010).

There is very little case law interpreting section 775.082(10). The only case reviewing the sufficiency of the findings made by the trial court to justify a prison sentence, rather than a nonstate prison sanction, is McCloud v. State, 55 So.3d 643 (Fla. 5th DCA 2011). In that case, the defendant pled guilty to two counts of petit theft and was sentenced to two years in prison followed by two years of community control. Id. at 644. At the trial court, the defendant argued that he did not pose a danger to the public because he had no history of violence. Id. The trial court found, however, that the defendant was a danger to the public because his “larcenous behavior was so well-known and frequent that when he was seen in a neighborhood, additional police resources were deployed to his location.” Id. The Fifth District upheld the defendant’s prison sentence on the basis that the defendant was a “habitual thief and presents a threat to property.” Id. at 645. The court specifically held that “ ‘danger may, at least in some cases, encompass pecuniary or economic harm.’ ” Id. at 644 (quoting U.S. v. Reynolds, 956 F.2d 192, 192-93 (9th Cir.1992)); see also id. at 645 (concluding that there is “nothing in the language of section 775.082(10) that suggests that the Legislature intended to limit the meaning of ‘danger to the public’ only to persons threatening physical violence or injury”).

We agree with the reasoning of Fifth District in McCloud that a danger to the public does not require a history of violence and can be based on economic or other types of harm. However, the record in this case does not support the trial court’s finding regarding Appellant’s potential future dangerousness. Although Appellant’s history of driving without a license arguably supports the trial court’s finding that he will continue to do so, the court did not make sufficient findings and the record does not suggest that imprisonment within the state prison system rather than the county jail would better deter him from continued unlicensed driving. Nor is there any record support for the court’s implicit finding that one year of incarceration in the county jail would constitute a significantly lesser deterrent for Appellant than three years in state prison. The trial court’s additional findings are speculative at best because it does not appear from the record that Appellant has a history of vehicle accidents or engaging in high speed chases with law enforcement. Accordingly, because the trial court’s findings are unsupported by the record, the court erred in imposing a prison sentence rather than a nonstate prison sanction in accordance with section 775.082(10).

In sum, for the reasons stated above, we reverse Appellant’s sentence and remand for resentencing. On remand, the trial court shall sentence Appellant to a nonstate prison sanction as required by section 775.082(10). See Shull v. Dugger, 515 So.2d 748, 750 (Fla.1987) (holding in a case involving an upward departure under the sentencing guidelines that “a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court”); but cf. Jackson v. State, 64 So.3d 90 (Fla.2011) (holding that a trial court may again impose a downward departure sentence under the Criminal Punishment Code on remand where the appellate court reverses the grounds for the initial departure).

REVERSED and REMANDED with directions.

WETHERELL and SWANSON, JJ., concur.

THOMAS, J., concurring in result only with opinion.

THOMAS, J.,

concurring in result only.

I concur in result only because, as both parties agree and the trial court initially ruled, the sentence here violates Appellant’s Sixth Amendment right to a jury trial. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). While fealty to judicial restraint requires courts to avoid constitutional issues if possible, it is not possible here for one simple reason: As the State argues, Appellant did not preserve the non-constitutional ground for reversal, as he did not raise the argument below at the resentencing hearing. See Steinhorst v. State, 412 So.2d 332 (Fla.1982). Section 924.051(1)(b), Florida Statutes, defines the preservation requirement as follows: “ ‘Preserved’ means ... that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefore.” (Emphasis added.) Subsection (3) of this statute clearly prohibits this court from considering an unpreserved error, unless it constitutes fundamental error. The issue relied upon by the majority is obviously not fundamental error, as the majority simply disagrees with the trial court’s evaluation of the evidence of Appellant’s behavior and its likely consequences.

Because the trial court ordered resen-tencing based on Appellant’s rule 3.800(b) motion, a de novo proceeding was conducted. Lebron v. State, 982 So.2d 649, 659 (Fla.2008) (resentencing is a “clean slate” and the State is required to establish facts even if previously established in prior sentencing hearing). Thus, the State properly concedes that the constitutional claim was preserved, although it would not have been preserved had the trial court initially denied relief, as the claim could not be properly raised by a motion filed under rule 3.800. See Jackson v. State, 983 So.2d 562 (Fla.2008).

It is for this very same reason, i.e., that a resentencing hearing is reviewed de novo, that the non-constitutional ground was not preserved — under section 924.051, Florida Statutes, and the contemporaneous objection rule, Appellant had a duty to repeat all sentencing arguments at the resentencing hearing in order to preserve those issues.

At the resentencing hearing, the parties focused almost exclusively on the Sixth Amendment issue, and the defense made only a vague allusion to any complaint regarding the statutory findings related to public safety. In addition, the trial court made it clear the original sentence had been vacated, and then it imposed the same prison sentence. If Appellant wished to preserve his statutory arguments, he was required to repeat his objections, with specificity, at the de novo resentencing hearing. See Brooks v. State, 54 So.3d 1069, 1071 (Fla. 4th DCA 2011) (holding that Appellant failed to preserve alleged error at resentencing); cf. Cromartie v. State, 70 So.3d 559 (Fla.2011) (“[Wjhere there is no contemporaneous objection during sentencing hearing and where the error does not qualify as a ‘sentencing error’ that can be raised in a rule 3.800(b) motion, the error can still be considered ... if the error is fundamental.”) (quoting Jackson v. State, 983 So.2d 562, 574). The Florida Supreme Court has made it clear that the preservation rule even applies in death penalty cases. Baptiste v. State, 995 So.2d 285, 302 (Fla.2008). Furthermore, both parties correctly agree that Appellant is entitled to relief under Blakely, and Appellant did not respond to the State’s correct assertion that he failed to preserve his non-constitutional claim.

Thus, the only ground for reversal is the violation of Appellant’s Sixth Amendment right to have a jury make the necessary findings to justify a sentence in excess of the “statutory maximum.” But because the majority erroneously addresses an un-preserved argument, which is flawed even on the merits, I will address both issues.

I. Statutory Findings

As to the issue of public safety, the trial court found that 1) Appellant has refused to obey Florida’s laws regarding driver’s licenses; 2) Appellant cannot obtain automobile insurance, because he does not possess a driver’s license, and thus, he poses a risk that any victim of his driving will likely have no viable financial recourse against him; 3) Appellant will not voluntarily stop for law enforcement in the future, knowing that he will be subject to prosecution for driving without a license; and thus, 4) a sentence limited to one year of incarceration in a local facility is not sufficient to protect the public. These findings, which are based on facts or reasonably foreseeable consequences, all support the trial court’s ultimate conclusion that a nonstate prison sanction is not sufficient to protect the public. This explains why the State correctly conceded at oral argument that “on these facts,” the prison sentence under section 775.082(10), Florida Statutes, violates the holding of Blakely— not because the judge’s findings are flawed, but because only a jury of Appellant’s peers can make such a finding.

II. Blakely v. Washington Controls

The only error committed by the trial court was its decision reversing itself and denying relief based on Blakely. The trial court’s order on Appellant’s second motion filed under Florida Rule of Criminal Procedure 3.800(b)(2) states that “the statutory scheme utilized to sentence the Defendant appears to be unconstitutional in that it allows a judicial finding that a nonstate prison sanction could present a danger to the public to increase the maximum permissible sentence under the statute.” Yet at its ordered resentencing, the trial court reversed its position and imposed the sentence at issue here.

As initially recognized by the trial court, under Blakely, the “statutory maximum” term is any nonstate prison sanction. Appellant was sentenced to state prison, thus, by definition, his sentence exceeds the statutory maximum term. This is necessarily true, because nothing inherent in the jury verdict establishes the “fact” that a nonstate prison sanction is insufficient to protect the public. While the trial court could logically reach such a conclusion, under Blakely, only a jury can make that decision beyond and to the exclusion of a reasonable doubt.

Thus, without a jury finding, a trial court cannot impose a “dispositional departure,” i.e., incarceration rather than probation, because that would exceed the statutory maximum by increasing the quantum of punishment even though the length of the sentence might be no different. In other words, five years of probation is most certainly not equal to five years of state prison: the latter is qualitatively, albeit not quantitatively, more severe. Accordingly, a “dispositional departure” is just as invalid for Sixth Amendment analysis as a “durational departure.”

At least one other state supreme court has agreed based on a similar sentencing law. State v. Allen, 706 N.W.2d 40 (Minn.2005), cert. denied, 547 U.S. 1106, 126 S.Ct. 1884, 164 L.Ed.2d 583 (2006). In Allen, the Minnesota Supreme Court properly recognized that a statute which created a presumptively probationary sentence had established that sentence as a “statutory maximum” term for Sixth Amendment purposes under Blakely; accordingly, a prison sentence under this statutory scheme violated Blakely, because the punishment was greater than probation, even though the length of the sentence might be the same: “The additional loss of liberty that results from [a prison sentence as compared to probation], it is plain, exceeds the maximum sentence authorized by a plea of guilty or jury verdict, and violates the constitutional rule.” 706 N.W.2d at 46 (emphasis added).

The United States Supreme Court has declared that the “statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict, or admitted by the defendant.” Blakely, 542 U.S. at 803, 124 S.Ct. 2531 (emphasis in original). This principle is drawn from the Supreme Court’s previous ruling in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely, the Supreme Court simply clarified Apprendi by further defining “statutory maximum” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis in original).

Only a jury can make findings to authorize a sentence beyond the statutory maximum. Thus, the trial court could not impose a sentence greater than one year in the county jail, two years of community control, or up to five years of probation, or any combination thereof, unless a jury determined that the greater sentence was necessary to protect the public.

Accordingly, the majority should not interpret section 775.082(10) based on sentencing guidelines principles now rendered obsolete by Blakely. We do not advance sound jurisprudence in this state by rejecting the arguments of both parties and ignoring binding United States Supreme Court case law. We should hold that a trial court lacks the lawful authority under this statute to make any findings without a special jury verdict or a waiver of the defendant’s Sixth Amendment right. Thus, I concur in result only that Appellant’s sentence must be reversed.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

      . We are satisfied that the first issue is preserved for appellate review in light of the argument presented below and the unique and tortured procedural history of the sentencing process in this case, which culminated in a perfunctory resentencing "hearing” at which the trial court simply imposed the same sentence it had initially imposed.

      .Section 775.082(10) was enacted in 2009 as a part of a cost-savings measure for the Department of Corrections, and the legislative staff analysis characterized the statute as a "prison diversion approach” pursuant to which the trial court was required to “sentence certain non-violent low-scoring offenders to a non-state prison sanction unless the court finds that such a sentence could endanger the public." See Fla. Comm, on Ways & Means, Bill Analysis & Fiscal Impact Statement for CS/SB 1722, at 1 (Apr. 6, 2009) (on file with comm.). The staff analysis explained the rationale for the statute as follows:
      Under current law a judge can sentence any third degree felon for up to five years in prison regardless of the total sentence score. In the last few years thousands of offenders whose sentence points are under the 44 point threshold recommended for a prison sanction have been sentenced to state prison. The absence of adequate diversionary programs and the overcrowding of jails have reportedly encouraged this trend of sending more low-level offenders to state prison.
      According to [DOC], research has shown that diversionary programs which offer substance abuse treatment, vocational programming, employment and job training and intense supervision have reduced offender recidivism and reduced prison populations by implementing these programs. The goal of these programs is to improve public safety by reducing crime through providing non-violent offenders with the tools to function successfully in the community.

        Id. at 3.

      . See generally § 921.0016, Fla. Stat. (1995); Fla. R. Crim. P. 3.701, 3.988.

      . This common understanding is consistent with the usage of the phrase in section 921.00241, which, like section 775.082(10), was enacted through chapter 2009-63, Laws of Florida. See § 921.00241(3), Fla. Stat. (using the phrase "nonstate prison sanction” to refer to a sentence imposed under subsection (2) of that statute, i.e., "a term of probation, community control, or community supervision with mandatory participation in a prison diversion program of the Department of Corrections if such program is funded and exists in the judicial circuit in which the offender is sentenced”).


author: PER CURIAM.

text:
    Kenneth Jerome ERIBY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5184.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2011.

      Ross A. Keene of Beroset & Keene, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In April 2009, a grand jury indicted Appellant Kenneth Jerome Eriby for first-degree murder. The indictment alleged that on October 30, 2008, in Escambia County, Appellant murdered Arthur Roland by shooting him in the head with a firearm, and that the killing occurred either by premeditated design or while committing or attempting to commit robbery, a felony. A jury later convicted Appellant of first-degree murder, and the trial court sentenced him to life in prison without parole. Appellant argues he should have received a judgment of acquittal because the State produced only circumstantial evidence at trial that was insufficient to sustain a conviction. He also argues that the trial court erred in finding prosecution witness Anthony Weatherspoon competent to testify. Without further discussion, we find no abuse of the trial court’s discretion in allowing witness Weatherspoon to testify. After reviewing the evidence de novo, as explained below we approve the trial court’s decision to deny Appellant’s motion for judgment of acquittal. Accordingly, we affirm Appellant’s conviction.

At approximately 7:00 p.m. on October 30, 2008, a friend of victim Arthur Roland found him in his car dead from a single gunshot to the right side of his head. The car, a dark-colored Buick sedan, was parked at the corner of S and Bobe streets in Pensacola. Roland regularly sold marijuana in the vicinity, and inside the console between the front seats of Roland’s car, a crime scene technician found several small baggies of marijuana inside a larger sandwich bag.

At trial, the State’s evidence showed that Appellant routinely bought marijuana from Roland and would get in Roland’s car to complete the transaction. Angela Brown, whose home is at the corner of S and Bobe streets, testified that on several occasions a blue Buick pulled up in front of her house, Appellant and a friend got in the car, drove off, and returned with marijuana. She testified further that the car from which Roland’s body was removed is the same car she often saw Appellant getting into in front of her home.

A few days before the murder, Appellant had a conversation with Elizabeth Prohn during which he showed her a revolver he was carrying and told her “I’m going to get me a drug dealer. I’m tired of being broke.” Days later, Appellant showed up at the home of Kenneth Ray Harvell trying to sell marijuana to him and his son, Kenneth Joseph Harvell. The elder Harvell testified this occurred the day before he saw a news report of a man shot to death in a car at S and Bobe streets. The Harvell home is seven to ten blocks away from that location. The elder Harvell said he and his son were standing on the porch when Appellant walked up. He did not see how Appellant arrived at the house. He testified that when they declined Appellant’s offer, Appellant showed the butt of a gun inside his jacket and “jokingly” said, “I guess I’ll make a couple of blocks and take it or whatever.” The younger Harvell testified he saw the news report of the shooting later the same day Appellant came to the house. He testified the incident at his home occurred around noon, that Appellant arrived in a green Buick, and that he saw Appellant emerge from the passenger side of the car. In the younger Harvell’s recount of the incident, when Appellant failed to make the sale, he showed a gun and “said it was all right and that he was going to hit a few corners and he’d be back.” “He just basically said he’s going to hit a few corners and do this nigger actually. That’s what he said.” Harvell testified he did not see Appellant get back into the car in which he arrived because “I don’t know where the car was parked. I didn’t see where he got in at.” Both men testified the gun Appellant showed them was a revolver. And the elder Harvell’s granddaughter Nicole Har-vell testified she saw Appellant at her grandparents’ home on October 30, 2008.

Prosecution witness Anthony Weather-spoon testified he was at Jessie Booth’s house the day Arthur Roland was killed. He was there when Appellant arrived at around 4:00 or 4:30 in the afternoon carrying two bags of marijuana and announcing he “just hit a lick at S and Bobe Street.” Appellant also was carrying a black revolver that he showed to Weatherspoon and others at Booth’s house. Weatherspoon said he understood “hit a lick” to mean Appellant had robbed someone, and that Appellant doled out the marijuana he brought to others to sell for him. He testified Appellant stayed at Booth’s for approximately an hour then left.

Escambia County Sheriffs Deputy Mark Smeester investigated the homicide. As part of his investigation, Deputy Smeester reviewed the call log of Roland’s mobile phone for answered, outgoing and missed calls on October 30, 2008. The call log registered, inter alia: answered incoming calls from Appellant’s mobile number at 3:15 p.m. and 3:25 p.m.; outgoing calls to Appellant’s mobile number at 3:43 p.m. and 4:35 p.m.; and an answered incoming call from Roland’s girlfriend at 4:54 p.m. The 4:35 p.m. call to Appellant was the last outgoing call on Roland’s call log for October 30, 2008, and the 4:54 p.m. call from the girlfriend was the last incoming call answered. Deputy Smeester also obtained a videotape from the security camera of an auto body shop located directly across the street from the Harvell residence. It showed at approximately 4:55 p.m. on October 30, 2008, a vehicle pulled up next to the house, and someone exited the front passenger side of the vehicle, walked toward the residence, returned shortly and got back in the car. The car remained for a few minutes, then the same person again exited the front passenger door, walked toward the house, returned to the car moments later, and the car drove off. Deputy Smeester could not identify the vehicle in the videotape as Roland’s. Neither could he identify the person getting in and out of the car as Appellant.

The man who discovered Roland dead in his car at 7:00 p.m. initially saw the car parked at S and Bobe streets at 5:00 p.m. as he drove by. Neither he nor anyone else saw Appellant at that location or witnessed the shooting, and no forensic evidence directly tied Appellant to the murder. Crime scene technicians found no bullet casing either in the car or on the ground, and recovered no discernable fingerprints from the car. DNA swabs of the car’s interior and exterior door handles yielded no match to Appellant, though he could not be excluded as a “possible contributor.” The medical examiner deemed the shooting a homicide based on stippling around the bullet wound that would not be apparent if the gun was pressed against the head as is typical in suicide. She estimated the shot was fired from between two inches and four feet away. The bullet removed from the victim’s head during autopsy had markings on it “most consistent” with having been shot from a revolver. And revolvers do not eject bullet casings when fired. But because the gun witnesses saw Appellant with was not recovered, it could not be tested to determine whether it fired the fatal shot.

The State produced no direct evidence that Appellant killed Roland, but relied solely on circumstantial evidence. To survive a motion for judgment of acquittal, the State’s circumstantial evidence not only must be sufficient to establish each element of the offense, the evidence also must be inconsistent with the defendant’s theory of events. Keeping in mind that it is within the jury’s province to assess witness credibility and resolve conflicts in the evidence, and viewing the evidence in a light most favorable to the State, as we must, we conclude the State’s evidence in this case is both sufficient to prove Appellant committed murder and decidedly inconsistent with Appellant’s defense theory.

The evidence showed that at least two days before marijuana dealer Arthur Roland was shot to death, Appellant planned to “get me a drug dealer” because he was “tired of being broke.” This he announced to Elizabeth Prohn while showing her his gun, a revolver. On October 30, 2008, the date of the shooting, Appellant and Roland called each other twice between 3:15 p.m. and 4:35 p.m. On that date, Appellant also was seen getting out of the passenger side of a dark-colored Buick at the home of Kenneth Ray Harvell and Kenneth Joseph Harvell. He approached them as they stood on their porch and offered to sell them marijuana. When the Harvells turned Appellant down, he showed them he had a revolver and said he would hit a few more blocks or corners and then “take it” or “do this nigger.” Later, he arrived at Jessie Booth’s house carrying two bags of marijuana sufficient to distribute to others to sell for him, displaying his revolver, and saying he had just “hit a lick” at S and Bobe streets. Roland was killed with a bullet bearing markings “most consistent” with being fired from a revolver. Revolvers do not eject bullet casings upon being fired, and indeed, no bullet casing was found in Roland’s car or on the ground around the car. We find this evidence sufficient for the jury to conclude that Appellant, who was “tired of being broke,” either premeditated killing a drug dealer to get drugs to sell himself or planned to take the drugs at gunpoint. Appellant targeted Arthur Roland, a dealer from whom he frequently bought marijuana. He drove around with Roland for a period, shot him, and took enough marijuana to distribute to others to sell for him.

Furthermore, the evidence is inconsistent with Appellant’s theory of defense. Appellant, his sister, his stepfather and Jessie Booth testified for the defense. According to their testimony, Appellant bought $25 worth of marijuana from Arthur Roland on October 30, 2008, between 3:30 p.m. and 4:00 p.m. in the parking lot of the Howard Johnson hotel where he had been staying with his girlfriend. Around 4:30 p.m., his sister picked him up from the hotel and, after stopping at a convenience store and the sister’s boyfriend’s house, she dropped him off at his mother’s house between 5:00 p.m. and 6:00 p.m. While there, Roland called Appellant to say his payment for the marijuana was $3 short, and “he was just laughing.” Appellant said he was at his mother’s house for approximately one hour. His sister then drove him to Jessie Booth’s house where he stayed for “an hour, two hours” before returning to the hotel for the rest of the night. Appellant denied seeing Roland after their hotel parking lot transaction. He denied possessing a firearm that day. He denied going to the Harvells’ house, though he testified he telephoned them in hopes he could sell them some crack as he had done in the past. And he denied being anywhere near Bobe Street.

Because the State’s circumstantial evidence was sufficient to establish either premeditated murder or felony murder, and was inconsistent with the defense theory, the trial court correctly denied Appellant’s motion for judgment of acquittal and sent the case to the jury. See Evans v. State, 26 So.3d 85, 89 (Fla. 2d DCA 2010) (“If an inconsistency exists between the defendant’s theory of innocence and the State’s evidence, then the trial court should deny the motion for judgment of acquittal and allow the jury to resolve the inconsistency.”) citing Boyd v. State, 910 So.2d 167, 181 (Fla.2005).

AFFIRMED.

WOLF and MARSTILLER, JJ., concur.

DAVIS, J., concurs in result.

      . See Reynolds v. State, 934 So.2d 1128, 1145 (Fla.2006).

      . See generally Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Andrews v. State, - So.3d -, -, 2011 WL 3558148 (Fla. 1st DCA 2011) (citing Darling v. State, 808 So.2d 145, 156 (Fla.2002)).

      . See generally Jent v. State, 408 So.2d 1024, 1028 (Fla.1981).

      . See generally Mosley v. State, 46 So.3d 510, 526 (Fla.2009); Taylor v. State, 13 So.3d 77, 78 (Fla. 1st DCA 2009).


text:
    Saintalet EXANTUS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1670.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 2011.
    Michelle P. Smith, of Law Office of Michelle P. Smith, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011).

GRIFFIN, SAWAYA and LAWSON, JJ., concur.


text:
    Saintalet EXANTUS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1645.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 2011.

      Michelle Smith, of the Law Office of Michelle P. Smith, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011).

GRIFFIN, LAWSON and JACOBUS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Luke Jarrod ADKINS, et al., Appellees.
    No. 2D11-4559.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robert J. Krauss, Assistant Attorney General, Tampa, for Appellant.
    Larry L. Eger, Public Defender, Bra-denton; John E. Hendry, Regional Counsel, Second District, Office of Criminal Conflict and Civil Regional Counsel, Bar-tow; Colleen M. Glenn, Bradenton; Steve Santiago, Bradenton; and Charles M. Britt, III, Bradenton, for Appellees.
   CERTIFICATION OF ORDER REQUIRING IMMEDIATE RESOLUTION BY THE SUPREME COURT

PER CURIAM.

The State appeals an order granting motions to dismiss filed by forty-two defendants in forty-six separate criminal proceedings pending in the Circuit Court for the Twelfth Judicial Circuit in Manatee County, Florida. Pursuant to Florida Rule of Appellate Procedure 9.125, and on its own motion, this court certifies that the order on appeal presents issues that require immediate resolution by the supreme court because the issues are of great public importance and will have a great effect on the proper administration of justice throughout the state.

The circuit court granted the forty-two defendants’ motions to dismiss on the ground that section 898.13, Florida Statutes (2002-2011), is unconstitutional. The circuit court’s order is based primarily on the reasoning of a recent decision by a United States district judge in Shelton v. Secretary, Department of Corrections, — F.Supp.2d -, 2011 WL 3286040 (M.D.Fla.2011). It is similar to a decision recently issued by a circuit court judge in the Eleventh Judicial Circuit of Florida. See State v. Washington, Nos. F11-11019, F10-36703, et al. (Fla. 11th Cir.Ct. Aug. 17, 2011). These decisions appear to conflict with another opinion from the Eleventh Judicial Circuit. See State v. Anderson, No. F99-12435(A), 2011 WL 3904082 (Fla. 11th Cir.Ct.2011). Like Anderson, a circuit court decision for the Thirteenth Judicial Circuit in Hillsborough County, Florida, also appears to be at odds with Shelton and Washington. See State v. Barnett, Nos. 11-CF-003124, 11-CF-005345, et al. (Fla. 13th Cir.Ct.2011).

Section 893.13 is the criminal statute most commonly used in Florida to enforce our laws against the manufacture, possession, and sale of illegal drugs. The ruling of the circuit court in this case would appear to control pending drug prosecutions in only one felony division of the Twelfth Circuit. This issue, however, will undoubtedly be raised in every felony division in all twenty circuits. It is clear from the four above-cited cases that judges will take at least two different approaches to the issue. It is entirely possible that many circuits will And themselves in the untenable situation of having two or more felony divisions taking opposite positions on this issue.

If this court were to review this decision and agree with the circuit court, our decision would be binding statewide and could affect literally thousands of past and present prosecutions throughout the state. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (recognizing that “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts”); Chapman v. Pinellas Cnty., 423 So.2d 578 (Fla. 2d DCA 1982) (same).

Until this important constitutional question is resolved by the Florida Supreme Court, prosecutions for drug offenses will be subject to great uncertainty throughout Florida. Moreover, cases pending on appeal and on motions for postconviction relief will be subject to similar uncertainty. It will be difficult to reach a final resolution in many of these cases until the issue is resolved. Finally, if the ruling in this order is ultimately affirmed by the supreme court, it is possible that hundreds or even thousands of inmates will be eligible for immediate release.

We are fully aware that the supreme court prefers to resolve cases after one or more of the district courts have first provided legal analysis in a published opinion. In this case, given the above-described effects of delay upon the administration of justice, we do not believe it is appropriate for this court to delay an ultimate decision by the supreme court while we consider the issue. It is obvious that a timely decision is needed from the supreme court to avoid a multitude of serious problems in the county, circuit, and district courts. This issue has been fully briefed and thoroughly discussed in this trial court proceeding and in the other proceedings cited in this opinion. Accordingly, the supreme court will have the benefit of these existing arguments. This court is doubtful that any benefit derived from the additional legal reasoning contained in opinions prepared by this court and other district courts would outweigh the cost associated with the delay required to prepare those written opinions.

This court voted at court conference to certify this order pursuant to rule 9.125. Accordingly, this panel of judges issues this certification. We certify for the above-explained reasons that the order requires immediate resolution by the supreme court because the issue pending in this district court is an issue of great public importance and because the issue will have a great effect on the proper administration of justice throughout the state.

SILBERMAN, C.J., and ALTENBERND and LaROSE, JJ., Concur.

      . Rule 9.125 has existed since 1980. This court has invoked the rule only in a handful of very exceptional appeals during that period. See, e.g., In re Commitment of Morel, 67 So.3d 1062 (Fla. 2d DCA 2010); A.L. v. State, 983 So.2d 597 (Fla. 2d DCA 2007); State v. Goode, 779 So.2d 544 (Fla. 2d DCA 2001); Heggs v. State, 718 So.2d 263 (Fla. 2d DCA 1998); State v. Hootman, 697 So.2d 1259 (Fla. 2d DCA 1997); Mann v. Chief Judge of the Thirteenth Judicial Circuit, 693 So.2d 117 (Fla. 2d DCA 1997); Schultz v. TM Florida-Ohio Realty Ltd. P’ship, 553 So.2d 1203 (Fla. 2d DCA 1989). In all probability, no order ever appealed to this court has been a better example of an order warranting certification under this rule.


author: SALTER, J.

text:
    Joel HARRIS and Judy Harris, Appellants, v. John E.D. GRUNOW, Jr., and O.R. Golf Partners, Ltd., Appellees.
    No. 3D10-208.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2011.

      Gaebe, Mullen, Antonelli, & Diraatteo, and Michael A. Mullen, Coral Gables, Anne C. Sullivan, Miami, and Elaine D. Walter, for appellants.
    Eden & Cates and Nathan E. Eden, Key West; Latham, Shuker, Eden & Beaudine, and Jennifer S. Eden and Hewett G. Woodward, Orlando, for appellees.
    Before RAMIREZ, SUAREZ, and SALTER, JJ.
   SALTER, J.

Joel Harris and Judy Harris, the defendants below, appeal a Monroe County Circuit Court order granting a new trial and setting aside a jury verdict in their favor. We reverse and direct the trial court to enter a final judgment in favor of the Harrises in accordance with the jury’s verdict.

I. Facts and Procedural Background

The plaintiffs below, John E.D. Grunow, Jr. and O.R. Golf Partners, Ltd., owned land next to John Pennekamp Coral Reef State Park in the Florida Keys. The Har-rises also owned a lot next to the Park and the plaintiffs’ lots. Grunow and O.R. Golf were cited by the Florida Department of Environmental Protection for directing non-party landscapers to cut protected mangrove trees without a permit and on Park propei’ty. O.R. Golf and Grunow were required to undertake and pay for a remedial planting program.

Thereafter, O.R. Golf and Grunow sued the Harrises for negligence, negligent supervision, indemnification, and equitable subrogation based on allegations that the Harrises had ordered mangrove cutting to improve their ocean view. The Harrises were never fined or cited for any such cutting. At the conclusion of a two-week trial, the jury rendered a verdict for the Harrises and the trial court entered a final judgment for them. O.R. Golf and Gru-now moved for a new trial and to set aside the jury verdict, and the trial court granted that motion. This appeal followed.

II. Analysis

The trial court concluded that a new trial was appropriate for three reasons: violations by counsel for the Harrises of “the Court’s Order in Limine regarding the mention of any evidence of dismissal or settlement of any former Defendant”; counsel’s introduction of “out-of-court statements made by the Defense’s own witnesses for the ostensible purpose of impeaching them with prior inconsistent statements”; and a determination that “Defense Counsel in closing argument specifically and repeatedly emphasized the fact that witnesses were not called by Plaintiffs when the witnesses were available to both parties.”

We review orders granting a motion for new trial for an abuse of discretion, but we have repeatedly recognized that “it takes a stronger showing of error in order to reverse an order granting a new trial than an order denying a new trial.” Greens to You, Inc. v. Gavelek, 967 So.2d 318, 820 (Fla. 3d DCA 2007) (quoting Niebla v. Flying Tigers Line, Inc., 533 So.2d 816, 816 (Fla. 3d DCA 1988)). Applying that stringent standard, and following a thorough review of the trial transcript excerpts cited by counsel for the appellees to support the trial court’s ruling, we conclude that the order in the case at hand must be reversed and a final judgment entered in accordance with the jury’s verdict.

A. Motion in Limine; Evidence Regarding Settlements

Grunow and O.R. Golf moved before trial for an order in limine prohibiting any evidence or testimony regarding “settlement/resolution/dismissal of claims formerly asserted against Sanders Building Group, Inc., Marciana Willis, Edward Willis, Jr. d/b/a Wormmy’s Landscape, and Eduardo Willis, III.” The trial court orally granted the motion, stating “we will not tell the jury that the Plaintiff has settled with any party in this case, that there has been a settlement.”

Counsel for the Harrises did not tell the jury that Grunow or O.R. Golf settled with any party or that there had been a settlement or dismissal. The closest the parties came to any such testimony was during the Harrises’ cross-examination of Edward Willis, Jr., who admitted he had talked to an attorney about the mangrove permitting issues and that later he “gave a deposition.” Counsel for the Harrises then asked Willis, “you were concerned, were you not, that Wormmy’s Landscape would be pulled into this case?” Willis responded, “We already were at that point.” Neither the question nor the answer indicated that there had been a settlement or dismissal. Eliciting the response that a non-party witness had been “pulled into this case” does not itself signify that the plaintiffs settled with any party, or that any release or dismissal occurred. And the appellees have not pointed to any other testimony or evidence adduced by the Har-rises that comes any closer to a violation of the order in limine than that response by Mr. Willis.

The trial court’s order on this point cited the Supreme Court of Florida’s decision in Saleeby v. Rocky Elson Construction, Inc., 8 So.3d 1078 (Fla.2009). As that decision makes clear, the purpose of the prohibitions against the admission of evidence of settlement is promotion of “Florida’s public policy to encourage settlement,” id. at 1084, and the prevention of prejudice — the “practical impossibility to eradicate from the jury’s minds the considerations that where there has been a payment there must have been liability,” id. at 1085 (quoting City of Coral Gables v. Jordan, 186 So.2d 60, 63 (Fla. 3d DCA 1966)). These objectives are embodied in sections 768.041 and 90.408, Florida Statutes (2010). Section 768.041(3) ordinarily prohibits the disclosure to the jury of “a release or covenant not to sue, or that any defendant has been dismissed by order of the court,” and section 90.408 provides that “[e]videnee of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.”

Neither the order in limine nor these statutes prohibit questions of the kind asked by the Harrises’ counsel — did you sue X corporation and Y? Expressed another way, the fact of the assertion of another claim is not of itself evidence of a settlement, compromise, release, or dismissal of a claim. In this case, the jury had no knowledge that Grunow or O.R. Golf had settled any other claim, dismissed any other party, or received any payment for any such claim. The fact that Grunow and O.R. Golf had sued their own contractors and subcontractors for cutting the mangroves was obviously pertinent to the Harrises’ defense that they did not hire those contractors or subcontractors or direct them to do any such work.

B. Impeachment and Prior Inconsistent Statements

Grunow and O.R. Golf objected when counsel for the Harrises sought to impeach a non-party witness, a landscaping contractor, with the witness’s prior inconsistent statements. The witness was called by the Harrises, and not all of his testimony became the subject of impeachment. The prior inconsistent statements were made in a deposition by the witness while under oath, but in another legal proceeding without counsel for Grunow or O.R. Golf then present for cross-examination. A careful review of the direct examination of the -witness at trial discloses that the impeachment violated no rule.

The landscaper was asked, for example, whether Grunow ever told him to “cut as low as you can, as far as out in the water as you can?” The witness answered “no.” When impeached with his prior inconsistent deposition testimony, the witness admitted that some of the trees were lower than he had been told to cut, but Grunow had said “it didn’t matter, the lower the better.” With additional damning testimony being elicited from the landscaper, the plaintiffs objected to allegedly-leading questions, hearsay, impeaching one’s own witness, and allegedly-compound questions. The witness ultimately testified, among other things, that Grunow himself had told the landscaper that Grunow “had flown over those lots and it looked like a bomb had gone off.” The jury was instructed by the trial court to disregard the question and answer.

The same witness testified in other parts of the questioning at trial that he did not recall certain facts, though he had recalled them in the prior sworn testimony. The prior testimony was given several years before the Grunow-Harris trial, and the witness also conceded that he had been using drugs around the time the mangroves were cut. But after initially saying he did not recall “a lot of the particulars,” the landscaper recalled and acknowledged a number of directives by Grunow to cut large trees that the landscaper had left in the middle of the lots, and to cut all the way to the ocean.

It is this latter category of problem — a witness who does not recall a prior statement, rather than one whose prior answer is plainly inconsistent with the witness’s answer to the same question at trial — that engenders a variety of objections and rulings at trial. The correct practice is to begin by asking the witness to read the pertinent parts of the prior statement silently in an effort to refresh the witness’s recollection (section 90.613, Florida Statutes (2010)), and then to re-ask the question. If the witness continues to be unable to recall the incident or facts in question, the trial court may allow questions regarding the prior inconsistent statement for use in impeaching the credibility of the witness. The trial court may also allow questions regarding the inconsistent statement to protect “against the ‘turncoat’ witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.” Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 801.7 (2011 ed.).

Of the twelve supposedly “improper impeachment” questions that have been identified by Grunow and O.R. Golf, however, only one fell squarely into this category, and that exchange was inconsequential in the context of the case as a whole (involving a date also testified to by other witnesses). Other questions and answers were not the subject of an objection or were appropriate for impeachment because of a demonstrable inconsistency.

The witness who gave the prior statement and testified at trial was in court. That witness was cross-examined by counsel for Grunow and O.R. Golf, and the witness’s vacillation and prior drug use were specifically criticized by counsel during the Grunow and O.R. Golf closing argument (which sarcastically dubbed him the “star witness”). Section 90.608 allowed counsel for the Harrises to impeach without a showing that the witness was adverse, and regardless of whether the witness’s testimony was prejudicial to the Harrises’ case.

On this record, the appellees’ reliance on Morton is misplaced. The Supreme Court of Florida observed in that case that “no single rule can be delineated to cover all of the circumstances under which parties will seek to impeach their own witnesses.” Morton, 689 So.2d at 264. In the present case, as in Morton, “it cannot be said that [the party calling the witnesses] called these witnesses primarily for the purpose of introducing inadmissible hearsay evidence.” Id. The landscaping contractor called by the Harrises in their case gave a variety of substantive testimony quite apart from the prior sworn statement and the in-trial impeachment related to it.

C. Closing Argument — “Missing Witnesses”

Grunow and O.R. Golf also argue that “defense counsel’s closing argument that the Plaintiffs failed to produce certain witnesses at trial created an impermissible missing witness inference,” citing Haliburton v. State, 561 So.2d 248 (Fla.1990). A review of the closing argument discloses that the plaintiffs did not object to the Harrises’ references to persons identified during the testimony of other witnesses but not called by the plaintiffs, and that no motion for mistrial was made regarding the allegedly-improper argument. Counsel for Grunow and O.R. Golf addressed the Harrises’ weight of the evidence/missing witnesses argument in rebuttal:

Don’t need 50 witnesses. Don’t need 100 witnesses. We have it out of the mouths of the Defendants themselves. They told you, they cut. And if they cut anything, they own it.

The four requirements for granting relief in a civil case based on allegedly-improper, but unobjected-to, closing argument are detailed in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000). First, the challenged argument must be improper. In the case at hand, the defense addressed the plaintiffs’ burden of proof and the categories of witnesses who were not called by Grunow and O.R. Golf (unnamed “other cutters” and State and County environmental regulators). One uncalled mangrove cutter was mentioned by name (Mario Navar-rette), but there is nothing in the record to confirm whether or not he was equally available to both sides of the lawsuit.

Second, under Murphy, the argument must be harmful — “so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.” Id. at 1029. Third, the improper argument must be incurable:

Specifically, a complaining party must establish that even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unob-jected-to argument resulted in an improper verdict.

Id. at 1030.

Fourth, the complaining party must also show that “the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Id. In this case, even if we considered the defense comments on the plaintiffs’ burden and lack of relevant evidence on liability to be improper (which we do not), the three remaining requirements under Murphy were not satisfied.

D. Additional Arguments

The Harrises also argue that their motion for directed verdict should have been granted based on the statute of limitations, the absence of proof that the Harrises cut mangroves or directed others to cut mangroves on the Grunow and O.R. Golf lots, and the payment of the Grunow and O.R. Golf damages claims by others. Grunow and O.R. Golf maintain that the limitations period was tolled by the conduct of the Harrises, that there was evidence regarding the Harrises’ alleged directives for the cutting, and that payments by others did not cover all of the damages suffered or claimed by Grunow and O.R. Golf. These alternative arguments are moot in light of our conclusions regarding the jury’s verdict and the new trial order, and we have neither considered nor decided them.

III. Conclusion

The normally-cold record on appeal in this case reflects considerable heat. The parties were neighbors disputing civil liability for the consequences of repugnant environmental violations. The witnesses allegedly involved in the mangrove decimation had obvious reasons to prefer to be somewhere other than the courtroom.

The heat of the battle is also reflected in the strident findings warranting a new trial as submitted by counsel for Grunow and O.R. Golf and entered by the trial court. But applying even the strict standard we impose upon ourselves for the review of a trial court’s exercise of discretion in ordering a new trial, those findings are not supported by the record. The Harrises obtained a verdict without violating the order in limine regarding settlements, without engaging in prohibited impeachment, and without improper “empty chair” commentary regarding witnesses not called. Counsel for Grunow and O.R. Golf estimated that the jury took less than an hour to reach their verdict after a two week trial, and that is its own commentary on the weight of the evidence. The parties did not receive a perfect trial, but the record demonstrates unequivocally that they received a fair trial.

The order granting a new trial is reversed, and the case is remanded for the entry of a final judgment in accordance with the jury’s verdict.

      . We addressed other aspects of the same underlying incident (involving the Iandscaper's insurance coverage) in Nova Casualty Co. v. Willis, 39 So.3d 434 (Fla. 3d DCA 2010).

      . Professor Ehrhardt’s analysis cites Federal Rule of Evidence 801 and several federal cases for this proposition; the pertinent elements of that rule are identical to section 90.801.

      . During that cross-examination, counsel for Grunow and O.R. Golf also used the witness's prior sworn statement to establish facts relating to the mangrove cutting and the witness’s prior inconsistent answers.

      . Morton v. State, 689 So.2d 259, 262 (Fla.1997); Juan Ramirez, Jr., Florida Evidence Manual, Ch. 6, § 608.01[b][i][D] (2d ed. 2010). The rule was otherwise until 1990, when predicate requirements for surprise and prejudice were required in order to impeach one's own witness.


text:
    Richard JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2560.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 2011.
    Richard Jones, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Richard Jones (Defendant) appeals an order summarily denying his rule 3.850 motion for postconviction relief. We reverse the summary denial of ground two of the motion, and otherwise affirm.

Following a jury trial, Defendant was found guilty of possession with intent to sell or deliver cocaine, and was sentenced to ten years. In ground two of his timely pro se rule 3.850 motion for postconviction relief, he claimed his defense counsel was ineffective in misadvising him that his only option was to go to trial, never disclosing to him that the state had made any plea offers. He did not learn of any offer until sentencing. Had he been informed that the state had made an offer, he would have taken the plea rather than proceeding to trial.

Defendant attached excerpts from the transcript to support this ground for relief. When he was asked during the sentencing hearing if he had anything to say, Defendant told the judge that he had done all he could to resolve the case, but the state never offered him a plea and none of his three assistant public defenders ever informed him that he could have pleaded to the mercy of the court to avoid a trial. The judge assured him that his decision to proceed to trial would not affect the sentence that the judge would impose that day.

The assistant state attorney asked Defendant’s assistant public defender whether he had anything to add in connection with not informing Defendant of his right to plead open. Counsel did not remember discussing it, but noted that, in general, he advised his clients it was preferable to preserve their appellate rights by going to trial rather than pleading open.

The prosecuting attorney then noted that there was a plea offer conveyed in the case. The presiding judge thought it best to put the matter on the record and asked the state what the offer was, but the prosecuting attorney did not believe it was appropriate to put the terms on the record and the court never insisted he do so, other than asking whether it was for less than the maximum sentence, and he confirmed that it was.

Defendant insisted he was never relayed an offer.

At that point, defense counsel admitted that there was an offer, but it was no longer available after the defense announced it was ready for trial. Again, Defendant stated he had no knowledge of any plea being offered. The court asked counsel to explain.

Defense counsel stated that when he received Defendant’s file, there was no offer in it, so he asked the prosecuting attorney whether he had conveyed one to Defendant’s prior counsel, and the prosecuting attorney forwarded that offer to defense counsel. Counsel continued as follows:

Um, that offer was discussed, the possibility of setting the case for trial was discussed with Mister Jones, at that time he wished to set it for trial. When it was set for trial it, the offer was then revoked, at that time we had further discussions about a plea negotiation. I ... approached [the prosecuting attorney] a couple of times again, he said at that time there was no offer.

Only on further questioning by the court did defense counsel confirm he specifically recalled receiving an offer from the prosecuting attorney and relaying it to Defendant.

Following that, the trial court made a finding on the record that, as an officer of the court, defense counsel’s statement was more credible than Defendant’s testimony that he did not receive an offer, and concluded that the matter was resolved without any need for further evidentiary hearings.

The trial court summarily denied the motion, finding this claim was refuted by the record and without merit, referring to the foregoing pages of the sentencing hearing transcript.

A claimant states a sufficient ground for relief under rule 3.850 if the claimant demonstrates that he or she was unable to make an informed decision whether to enter into a plea bargain due to counsel’s neglect; that with the correct advice, he or she would have accepted the plea offer; and that acceptance of the plea would have resulted in a lesser sentence. Cottle v. State, 733 So.2d 963 (Fla.1999).

This claim lacks the last prong of Cottle, as Defendant did not state what terms the state offered him in order to allege that acceptance of the plea would have resulted in a lesser sentence than the one he received. But if he was telling the truth that no one relayed an offer to him, and all he knew about it is what was stated in the course of his sentencing hearing, then he would not know what terms the state had offered.

The record reflects that Defendant was sworn before addressing the court at his sentencing hearing, but neither the prosecuting attorney nor defense counsel was sworn, as they would have been had they been called to testify at an evidentia-ry hearing. In effect, the sentencing court made a finding of fact without hearing any evidence to contradict Defendant’s sworn testimony. Under the circumstances, the claim was not conclusively refuted by the record.

Accordingly, we reverse for further proceedings. On remand, we direct the trial court to appoint conflict counsel to represent Defendant for the purpose of discovering the terms of the plea offer, in order to assist Defendant in amending ground two of his motion to make it legally sufficient under Cottle, if he can do so in good faith once he learns the terms of the plea offer.

We affirm without further discussion the summary denial of Defendant’s remaining grounds for relief.

Affirmed in part, Reversed in part, and Remanded.

TAYLOR, DAMOORGIAN and LEVINE, JJ., concur.

      . He was also found guilty of resisting without violence, but that conviction was reversed on direct appeal. See Jones v. State, 955 So.2d 1208 (Fla. 4th DCA 2007).


text:
    Randy HART, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3045.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 2011.
    Carey Haughwout, Public Defender, and Ellen Griffin, 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.
   PER CURIAM.

Affirmed. See Dinardo v. State, 742 So.2d 287, 288 (Fla. 1st DCA 1998).

DAMOORGIAN and GERBER, JJ., and MARX, KRISTA, Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Daniel ONSRUD, Appellee.
    No. 4D10-3239.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Reversed. See State v. Jennings, 968 So.2d 694 (Fla. 4th DCA 2007).

WARNER, DAMOORGIAN and GERBER, JJ., concur.


author: JACOBUS, J.

text:
    Laforest L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2735.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

Laforest Williams (“Appellant”) timely appeals the judgment and sentence entered after a jury found him guilty of robbery with a firearm. Appellant raises three claims of error on appeal. We find Appellant’ first and second claims are without merit. As to the third claim, however, the court erred in permitting the State to elicit testimony from Appellant’s wife in violation of the husband-wife privilege. We therefore reverse and remand this matter for a new trial.

This case arises out of the armed robbery of an undercover DEA agent. The agent set up a meeting to purchase a substantial amount of drugs at a drug dealer’s home. Upon arrival at the appointed time and place, the agent found the dealer was not home, but his girlfriend was there. While the agent and the girlfriend were standing outside the home, they were approached by two men with guns. The agent was robbed at gunpoint of $11,500 in marked bills. A neighbor who witnessed part of the robbery called 911. During the 911 call, the dealer’s girlfriend spoke to the dispatcher and stated: “Two-Six just robbed him. Two-Six did.”

At trial, the 911 recording was played to the jury. The State also played the girlfriend’s police statement in which she identified Two-Six as the robber, stated Two-Six was Williams, and stated that she was afraid of him. However, at trial the girlfriend denied making any of these statements and denied the veracity of them.

Defense counsel objected to the testimony on the basis of the husband-wife privilege when the State called Appellant’s wife to testify regarding a conversation she had with Appellant. The State made no showing that the statements between Appellant and his wife were not meant to be confidential or that they were made to a third-party. Nonetheless, the court overruled the objection, finding that the conversation between Appellant and his wife was not intended to be confidential. Mrs. Williams testified that Appellant was known as Two-Six on the street, but she knew him as Laforest. She also testified that before the robbery Appellant told her that he needed money to pay his attorney in Gainesville.

The State makes two arguments in support of its contention that Mrs. Williams’ statements were properly admitted at trial. First, it contends that Appellant waived the privilege by failing to object to Mrs. Williams’ discovery deposition. During that deposition, Mrs. Williams made the same revelations regarding her conversation with Appellant as she did at trial. Second, the State claims any error in admitting the statements was harmless.

Our supreme court has ruled that even without an objection, the husband-wife privilege is not waived when one spouse gives deposition testimony regarding conversations with the other spouse. See Bolin v. State, 642 So.2d 540 (Fla.1994). However, Bolin suggests that using the deposition at trial would waive the privilege. See id. at 541. Here, Appellant did not object to his wife’s deposition and the deposition was never used at trial. Based on these facts, we conclude Appellant did not waive the husband-wife privilege.

We find that Mrs. Williams’ statement regarding Appellant’s street name was not protected by the husband-wife privilege because that information was known generally in the community. However, considering the record before us, we must conclude that the trial court erroneously permitted Mrs. Williams to testify about Appellant’s statement that he needed money to pay his attorney. A communication between a husband and wife is presumed confidential unless there is evidence to the contrary. Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 95 L.Ed. 306 (1951); Yokie v. State, 773 So.2d 115, 117 (Fla. 4th DCA 2000). At trial, neither Appellant nor his wife testified whether they meant their communication to be private or public. Likewise, there was no testimony that the statement was made in the presence of a third party or that Appellant instructed his wife to disclose this information to another person. Without this information, it is impossible to determine whether Appellant’s statement to his wife was privileged and whether that privilege had been waived. As such, the State did not overcome the presumption that the statement is covered by the husband-wife privilege. Therefore, it was error for the trial court to admit Mrs. Williams’ statements over defense counsel’s objection. See Blau, 340 U.S. at 333-34, 71 S.Ct. 301 (noting that government made no effort to overcome marital privilege and communication was likely to be confidential); Yokie, 773 So.2d at 117.

As to the harmless error claim, the State argues that Mrs. Williams’ testimony was limited and did not involve any admissions of guilt by Appellant. As a result, according to the State, Mrs. Williams’ testimony could not have contributed to the jury’s finding of guilt. To establish harmless error, the State must prove, beyond a reasonable doubt, that the alleged error did not contribute to the verdict. State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

In this case, there was evidence to tie Appellant to the robbery. Specifically, the undercover agent positively identified him as one of the robbers. The jury heard the 911 call from the dealer’s girlfriend where she identified “Two-Six” as one of the robbers, and the jury learned that the girlfriend told the police that Laforest “was one of the robbers.” The State also presented evidence that some of the marked money stolen during the robbery was found in Appellant’s lawyer’s office in Gainesville. To link the money to Appellant’s guilt, the State needed to show that Appellant delivered the money to his attorney in Gainesville. The State did so by offering Mrs. Williams’ testimony that the attorney knew Appellant and that her husband had told her before he was arrested that he needed money to pay his attorney. Without Mrs. Williams’ testimony, the only evidence linking Appellant to the crime would have been the eyewitness identification by the undercover agent and the girlfriend. Defense counsel attacked both of these identifications at trial and weakened their impact during cross-examination. Furthermore, the girlfriend stated that the police coerced her into identifying Appellant as one of the robbers.

Looking at all of the facts, it is apparent that although Mrs. Williams’ testimony was brief, it was vital to the State’s case. Accordingly, it is impossible to determine whether its admission contributed to the jury’s verdict. Therefore, we conclude the erroneous admission of Mrs. Williams’ testimony was harmful. See Bolin, 642 So.2d at 541 (finding erroneous admission of privileged testimony harmful where statements from Bolin to his wife were integral part of State’s case and reviewing court could not determine whether they played significant role in jury’s determination). For the foregoing reasons, the conviction and sentence are reversed and this matter is remanded for a new trial.

CONVICTION and SENTENCE REVERSED, REMANDED for New Trial.

ORFINGER, C.J. and SAWAYA, J., concur.

      . § 90.504(1), Fla. Stat.


text:
    Bryan CROSKEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1594.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bryan I. Croskey, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm in all respects this Anders appeal. However, we remand for correction of the written sentencing order. Since the jury specifically found that Appellant possessed but did not discharge a firearm, the reference to a twenty-year minimum mandatory and section 775.087(2)(a)2., Florida Statutes (2008), is erroneous and should be stricken from the judgment. See Murphy v. State, 977 So.2d 748 (Fla. 2d DCA 2008) (in Anders appeal, affirming judgment and sentence and remanding to correct scrivener’s errors in written judgment). The trial judge’s oral pronouncement of a ten-year minimum mandatory sentence pursuant to section 775.087(2)(a), Florida Statutes (2008), was correct and should be set forth in the order.

AFFIRMED AND REMANDED FOR CORRECTION.

MONACO, TORPY and EVANDER, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Charles PERSAUD, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2891.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.
    Robert Wesley, Public Defender and Sherlene Cruz, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence i-n case number 2009-CF-00426-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ORFINGER, C.J., PALMER and EVANDER, JJ., concur.


text:
    Johnson D. MOODY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2683.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.
    Johnson Moody, Daytona Beach, pro se.
    Pamela J. 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 be treated as the notice of appeal from the order dismissing his petition for writ of habeas corpus in case number 2010-32306-CICI, in the Circuit Court in and for Volusia County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

MONACO, LAWSON and EVANDER, JJ., concur.


text:
    Danny BLACKWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2007.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.
    Danny Blackwell, Crestview, pro se.
    Pamela J. 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 will be filed with the lower court and be treated as the notice of appeal from the order denying the motion for postconviction relief in Case No. CF04-1056 in the Circuit Court in and for St. Johns County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, COHEN and JACOBUS, JJ., concur.


text:
    HELPING HAND PRIVATE FOUNDATION, INC., Appellant, v. OCEAN PALMS BEACH CLUB, INC., Appellee.
    No. 5D10-4402.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.
    Frederick C. Kramer, of The Kramer Law Firm, P.A., Marco Island, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Helping Hand Private Foundation appeals from a summary final judgment entered in a lien foreclosure action filed by Ocean Palms Beach Club. We reverse.

Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Alejandre v. Deutsche Bank Trust Co. Americas, 44 So.3d 1288, 1289 (Fla. 4th DCA 2010). Where, as in the instant case, affirmative defenses are raised, the movant has the burden of either disproving them or establishing their legal insufficiency. See O’Brien v. Fed. Trust Bank, F.S.B., 727 So.2d 296, 298 (Fla. 5th DCA 1999); Fla. Dep’t of Agric. v. Go Bungee, Inc., 678 So.2d 920, 921 (Fla. 5th DCA 1996). Here, Ocean Palms did neither. The sole summary judgment evidence relied upon by Ocean Palms was an affidavit executed by its president, Edward Polonsky. The affidavit’s conclusory recitation of the amount of monies due and owing on the filed liens was insufficient to refute Helping Hand’s asserted defenses. See Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009).

REVERSED and REMANDED.

TORPY, LAWSON and EVANDER, JJ., concur.


author: SAWAYA, J.

text:
    J.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3538.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.
    James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

J.H. appeals the disposition order, claiming that it violates the prohibition against double jeopardy. We agree and reverse.

J.H. entered a plea of no contest to one count of lewd or lascivious conduct. At the initial disposition hearing, the court orally sentenced 14-year-old J.H. to probation until he turned 19 and ordered 23 hours of community service in lieu of a cash payment of court costs. The court signed the Department of Juvenile Justice’s (DJJ) proposed plan and the matter concluded. - J.H. left the courtroom to begin his probation. The court proceeded to handle other cases.

Fourteen minutes after J.H.’s sentence had been pronounced, J.H. was summoned back to the courtroom at the request of the assistant state attorney, who thought that the sentence needed to be re-addressed in light of her belief that a commitment staffing that had been previously ordered was never completed. The court withdrew the disposition, order and ordered that another disposition hearing be held after the commitment staffing was completed. J.H.’s attorney protested that jeopardy had already attached and J.H. had already begun serving his probation. The court announced that it would deal with those concerns at the next disposition hearing. The hearing concluded.

The commitment staffing was held, and the case proceeded to the second disposition hearing several weeks later. This time, the DJJ recommended that J.H. be placed in residential treatment in a moderate-risk program. J.H.’s attorney again objected on the ground that jeopardy had attached at the earlier sentencing. Acknowledging that there “most likely” would be an appeal and that its second sentencing order “may well be overturned,” the court imposed three years in a level six program, ordered 23 hours of community service to cover court costs, and added 20 hours of community service that had not been included in the first order.

The State concedes that if this court determines that the original sentence was valid, double jeopardy was violated by the resentencing. However, it contends that the original sentence was invalid because the court did not have before it a fully completed, statutorily-required predisposition report at the time of sentencing, which, it argues, is required under section 985.229(1):

A predisposition report shall be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department. A comprehensive evaluation for physical health, mental health, substance abuse, academic, educational, or vocational problems shall be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department. If a comprehensive evaluation report is ordered, the predisposition report shall include a summary of the comprehensive evaluation.

§ 985.229(1), Fla. Stat. (2010). Missing from the predisposition report was a comprehensive evaluation, and only after the court received the comprehensive evaluation could a sentence be properly imposed, the State asserts, citing K.D. v. State, 911 So.2d 885 (Fla. 1st DCA 2005) (remanding for new disposition hearing where the predisposition report noted that a comprehensive evaluation had not yet been received as of the date of the report and DJJ had asked that sentencing be continued so it could be obtained; holding that failure to strictly comply with the mandatory statutory requirements for disposition hearings is reversible error and, without the comprehensive evaluation to consider, the court was in violation of the statutory requirements for sentencing).

It appears the State was misled by a predisposition report filed some months earlier that was incomplete, as that is what it cites in support of its argument that the court could not proceed to sentencing in the absence of a comprehensive evaluation. The State is correct that the predisposition report to which it refers was incomplete— it noted on its face the absence of the comprehensive evaluation at the time it was prepared. However, the record does contain a subsequent, complete predisposition report and comprehensive evaluation. This complete report, along with the DJJ’s proposed plan for probation, was stamped as “Filed in Open Court” on the day of the first disposition hearing. Hence, the State advances an erroneous argument in support of its contention that the original sentence was improper.

As noted above, J.H. was originally sentenced to probation. Probation cannot be revoked or enhanced without first a determination that the probationer violated probation. § 948.06, Fla. Stat. (2010); Burkhart v. State, 974 So.2d 1203 (Fla. 1st DCA 2008). Without such proof, “a trial court cannot alter an order of probation by revoking or enhancing the terms thereof.” J.D.D. v. State, 12 So.3d 820, 821 (Fla. 1st DCA 2009). If it does so, it has violated the prohibition against double jeopardy. See Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003) (“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.”); Gardner v. State, 30 So.3d 629, 632 (Fla. 2d DCA 2010) (holding that the sentencing court lacked authority to call the defendant back for resentencing that increased sentence terms, even if the originally pronounced sentence was illegal for failing to include minimum mandatory term; further holding that it was a violation of double jeopardy protections to increase the sentence after jeopardy attached); T.D.D. v. State, 981 So.2d 674, 675-76 (Fla. 2d DCA 2008) (agreeing with the state’s concession that second disposition order had to be reversed and new disposition order reflecting court’s earlier oral pronouncement had to be entered); Obara v. State, 958 So.2d 1019, 1021-22 (Fla. 5th DCA 2007) (reversing resentencing of the defendant where drugs were found on his person ten minutes after the initial sentence was imposed; holding that jeopardy had attached and possession was not a violation of the terms of his plea agreement); Shepard v. State. 940 So.2d 545 (Fla. 5th DCA 2006) (holding that the defendant’s double jeopardy rights were violated when the trial court recalled parties 50 minutes after sentencing hearing concluded and changed oral pronouncement of “concurrent” to “consecutive” on one of defendant’s sentences; noting original pronouncement was neither ambiguous nor illegal, and pronouncement became final when sentencing hearing ended); I.B. v. State, 771 So.2d 1258, 1259 (Fla. 4th DCA 2000) (concluding that the trial court’s action in setting aside a disposition order and then “resentencing appellant after his sentence had already been served” violated double jeopardy).

Here, the trial court had orally pronounced sentence and J.H. had left the courtroom. When J.H. left, he was on probation and had began to serve the sentence imposed at that disposition hearing. Because this original sentence was valid, the court violated the constitutional proscription against double jeopardy by sentencing J.H. a second time to a harsher sentence. Accordingly, we reverse the second disposition order and remand this case for reinstatement of the initial disposition order and sentence originally imposed.

REVERSED and REMANDED.

GRIFFIN and COHEN, JJ., concur.

      . Art. I, § 9, Fla. Const.


text:
    Malcom Bailey SCARLETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3390.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 2011.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. McKinney v. State, 24 So.3d 682 (Fla. 5th DCA 2009), approved, 66 So.3d 852 (Fla. 2011).

ORFINGER, C.J., GRIFFIN and PALMER, JJ., concur.