author: MORRIS, Judge. ALTENBERND, Judge,

text:
    Johnny Bernard JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1985.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.
    James Marion Moorman, Public Defender, and Whilden S. Parker, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Johnny Bernard Jackson appeals the revocation of his probation and the resulting sentences for numerous counts of robbery, armed robbery, and attempted robbery. We affirm the revocation of his probation without further comment. We write only to address a scrivener’s error as well as the practice of issuing new judgment forms upon revocation of probation.

Jackson argues that remand is required for an amended revocation order clarifying exactly what lower tribunal cases were subject to revocation. Although Jackson has presented more than one argument on this issue, we find that remand is required only for the trial court to add lower tribunal case number 95-94 to the order of revocation. It is clear from the record before this court that case number 95-94 was subject to the trial court’s order of revocation and was only omitted due to a scrivener’s error, which is not surprising considering the number of lower tribunal cases involved. Accordingly we remand solely for this correction.

We do take this opportunity, however, to address an issue which was discussed in this court’s opinion in Dawkins v. State, 986 So.2d 710, 712 (Fla. 2d DCA 2006). Upon revocation, the trial court in this case issued new judgment forms which were signed fifteen years after the original judgments. In Dawkins, we noted that this appears to be a procedure utilized in the Thirteenth Judicial Circuit every time a sentence is imposed upon revocation of probation. Id. at 711. We noted in Daw-kins that we were “not aware of any rule or statute that expressly permits a circuit court to enter multiple judgments of conviction for the same offense in one case.” Id. at 712.

While we have a revocation order in this case and therefore do not have the same jurisdictional problem that arose in Daw-kins, we stress that the entry of a new judgment form is superfluous and could cause undue confusion. For example, with the public record containing duplicative judgment forms entered fifteen years after the original judgments, it could be difficult to determine exactly how many offenses the defendant had committed. There is also a question as to whether the two-year period for filing a motion for postconviction relief begins anew. These concerns were fleshed out in Dawkins, but because this issue has been presented to us again, we emphasize that such duplicative judgment forms are unnecessary and should be avoided.

Affirmed and remanded with instructions.

NORTHCUTT, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in this opinion. I write only to observe that unintentionally the Department of Corrections is contributing to the problems caused by duplicative judgments in criminal cases. The confusion arises from the uniform commitment form that the Department designed and supplies to the circuit courts. See § 944.17(4), Fla. Stat. (2010). The standard form is confusing and makes no reference to an order of revocation of probation or community control. A reference to an order of revocation would be helpful because the Department probably needs to obtain a certified copy of such an order when it takes custody of a defendant who is serving a split sentence and who returns to prison as a result of a violation of probation or community control.

The standard form, which gives the sheriff the authority to transfer a prisoner from county jail to the Department, explains that the defendant has been “duly convicted” “as appears from the attached certified copies of indictment or information filed, judgement [sic] and sentence, and felony disposition and sentence data from which are hereby made parts hereof.” I would note that, at least in the Second District, some clerks spell “judgment” correctly and others spell it “judgement.” I am also not certain whether the Department’s form is referring to a “felony disposition and sentence data form[,] which” is made part of the commitment package, or to “felony disposition and sentence data from which” is made part of the package; we receive both versions of the uniform commitment form from clerks within this circuit.

Typographical issues aside, some circuit courts have read the standard uniform commitment form as requiring them to enter duplicative judgments when imposing a sentence on a violation of probation. In actuality, the circuit court must enter a judgment on a violation of probation “unless [the defendant] has previously been adjudged guilty.” See § 948.06(2)(e), Fla. Stat. (2010) (emphasis added). Thus, the circuit court only enters a judgment on a violation of probation in those instances when it withheld an adjudication of guilt, i.e., withheld judgment, at the time it originally imposed probation.

Section 948.06 does not expressly state that an order of revocation of probation or community control is the order otherwise entered in this context, but such an order is implied by that statute. The legislature has expressly identified the order revoking probation as the appealable order. See § 924.06(1)(e), Fla. Stat. (2010). The supreme court has created a form order for use on revocation of probation and community control. See Fla. R.Crim. P. 3.995. I assume the Department has adopted the uniform order on revocation of probation and community control as the law requires. See § 944.17(4).

Although this case is not an example, this court continues to receive many appeals from defendants whom the circuit courts have sentenced and transferred to the Department without the necessary order of revocation of probation. Instead of the order of revocation, this court receives duplicative judgments. These duplicative judgments are, at best, confusing and unnecessary. Hopefully, they are harmless in most contexts. While such a duplicative judgment is unnecessary and usually harmless, the absence of the order of revocation of probation is not. That order is the predicate order empowering the circuit court to enter a new sentence without violating double jeopardy. Accordingly, this court regularly relinquishes jurisdiction to the circuit court, requiring the circuit court to enter this essential order.

If the uniform order of commitment, or the regulations accompanying that form, explained the need for the Department to receive an order of revocation of probation or community control and not a duplicative judgment when taking custody of a prisoner in this context, this problem could be quickly eliminated.

      . Although this form is apparently designed and supplied by the Department, I have found no administrative regulations that address the uniform commitment form and do not know when the Department last revised the form.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Bobby Lee EWING, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-6020.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.

      James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Bobby Lee Ewing appeals his judgments and sentences for possession of methamphetamine with intent to sell, sale of methamphetamine, possession of drug paraphernalia, and possession of a structure used for trafficking in a controlled substance. For each of the felonies, he received a concurrent ninety-month term of imprisonment. We affirm all of the convictions with the exception of the conviction for possession of methamphetamine with intent to sell. As to that offense, the trial court erred in failing to give a jury instruction on simple possession of methamphetamine as a necessary lesser-included offense. Even though this lesser-included offense is not listed in the standard instructions as a necessary lesser-included offense, we reverse the conviction and sentence and remand for a new trial. Finally, because this reversal may significantly affect the scoresheet that the trial court used in sentencing Mr. Ewing for the other felonies, we reverse those sentences and remand for resentencing.

For events occurring on December 9, 2008, the State charged Mr. Ewing with possession of methamphetamine with intent to sell, sale of methamphetamine, possession of drug paraphernalia, and possession of a structure used for trafficking in a controlled substance. Mr. Ewing went to trial in October 2009 on the charges. During the trial, the judge discussed the jury instructions with the attorneys immediately before a lunch break. At that time, the judge expressed his opinion that possession of methamphetamine had to be a necessary lesser-included offense of possession of methamphetamine with intent to sell. He asked the attorneys to add that offense as a lesser-included offense on the verdict form.

A few hours later, when the attorneys were working with the judge at the jury instruction conference, the assistant state attorney pointed out that Florida Standard Jury Instruction in Criminal Cases 25.2 does not list simple possession as a necessary lesser-included offense for possession with intent to sell. The judge clearly doubted the accuracy of the list of lesser-included offenses contained in the standard instructions, but he decided — against his better judgment — to obey the content of the standard instruction. Unfortunately, it turns out that he should have relied on his own better judgment instead of the standard jury instruction.

The relevant standard jury instruction includes standard language to use with a wide range of drug offenses under subsections 893.13(l)(a) and (2)(a), Florida Statutes (2008). As a result, it was probably very difficult for the committee creating these standard instructions to prepare a list of lesser-included offenses in table form that would be accurate for all of the offenses in the statute. In this case, the table in the standard instructions is simply incomplete for this offense.

In Carle v. State, 983 So.2d 693, 695 (Fla. 1st DCA 2008), the court held that simple possession of diazepam was a necessary lesser-included offense of possession of diazepam with intent to sell. See also Murphy v. State, 684 So.2d 267, 269 (Fla. 4th DCA 1996) (reversing the defendant’s conviction for possession of cocaine with intent to deliver because the trial court denied his request to instruct the jury on the lesser-included offense of possession of cocaine); Johnson v. State, 570 So.2d 1158, 1158 (Fla. 5th DCA 1990) (finding that the defendant was entitled to an instruction on simple possession as a lesser-included offense of the unlawful sale, delivery, or possession of a controlled substance with intent to sell or deliver). In examining the elements of the offense, it is clear that the crime of possession of any drug is an offense that is fully subsumed within the elements of the crime of possession of the drug with intent to sell. See, e.g., Wilcox v. State, 675 So.2d 1043, 1043 (Fla. 4th DCA 1996) (“Patently, one cannot be convicted of possession with intent to sell under section 893.13(l)(a) if all the elements of possession are not met.”). Given that simple possession in this context is the next lesser-included offense, the trial court’s failure to provide this instruction over the defendant’s objection is an error requiring a new trial. State v. Ahreau, 363 So.2d 1063, 1064 (Fla.1978) (“[T]he failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible.”).

Although the Supreme Court Committee on Standard Jury Instructions in Criminal Cases does its best to provide adequate instructions, it is worth noting that the supreme court approves the committee’s instructions for use but does not express an opinion on the correctness of the instructions. For example, when the Supreme Court approved the committee’s proposed changes in July 2010, it included its standard language that it “authorize^] the publication and use of the instructions,” but advised that:

In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.

In re Standard Jury Instructions in Criminal Cases-Report No. 2010-02, 44 So.3d 565, 566 (Fla.2010).

Moreover, Florida Rule of Criminal Procedure 3.985, which is tucked away inside the section of the rules on forms, explains:

The forms of Florida Standard Jury Instructions in Criminal Cases ... may be used by the trial judges of this state in charging the jury in every criminal case to the extent that the forms are applicable, unless the trial judge shall determine that an applicable form of instruction is erroneous or inadequate, in which event the judge shall modify or amend the form or give such other instruction as the trial judge shall determine to be necessary to instruct the jury accurately and sufficiently on the circumstances of the case; and, in such event, the trial judge shall state on the record or in a separate order the respect in which the judge finds the standard form erroneous or inadequate and the legal basis of the judge’s finding.

This is one of those cases in which the trial court should have stated on the record its determination that the standard instruction was inadequate. In that event, we would simply have affirmed this case and sent the trial court’s finding on to the Committee for its consideration. As it stands, we must send this opinion to the Committee and require the trial court to retry this count of the information.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.

      . See §§ 893.13(l)(a)(l), ,03(2)(c)(4), Fla. Stat. (2008).

      . See §§ 893.13(l)(a)(l), .03(2)(c)(4).

      . See § 893.147(1).

      . See § 893.1351(2).


author: KELLY, Judge.

text:
    Ramiro IBARRA, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3955.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.

      Wade M. Whidden of Whidden Law, P.L., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Ramiro Ibarra challenges his judgment and sentences for trafficking in cocaine and conspiracy to traffic in cocaine. Although he asserts two grounds on appeal that he contends require a new trial, we address only his argument that the trial court reversibly erred when it allowed the State to impeach him with a previously undisclosed statement without first conducting a Richardson hearing to determine if a discovery violation had occurred and, if so, whether he was prejudiced. We agree that the trial court erred when it failed to make the required inquiry, and because the State has not met its burden to prove beyond a reasonable doubt that Ibarra was not procedurally prejudiced by the violation, we reverse.

At trial, Ibarra, who claimed he was entrapped, testified in his own defense. After he testified, the State announced its intention to call a police detective as a rebuttal witness. The State indicated the detective would testify about an oral statement Ibarra made to the detective that was contrary to Ibarra’s trial testimony. The State had not previously disclosed the content of the statement as required by Florida Rule of Criminal Procedure 3.220(b)(1)(C). Defense counsel objected and notified the court that the State had never disclosed the statement. Ibarra argues that at this juncture the trial court was obligated to conduct a Richardson hearing to determine whether a discovery violation had occurred and whether Ibarra had been prejudiced by the violation. See, e.p., Reese v. State, 694 So.2d 678 (Fla.1997) (noting the necessity of a Richardson hearing where the State sought to introduce an oral statement by the defendant to the police where the content of the statement had not been provided to defense counsel). The State argues the hearing was unnecessary because it never called the detective in rebuttal and instead only used Ibarra’s statement to impeach him during cross-examination. However, the rule requiring discovery of the defendant’s statements applies equally when the statement is used for impeachment purposes. See Portner v. State, 802 So.2d 442, 446 (Fla. 4th DCA 2001) (noting that “[t]here is no impeachment exception to the Richardson rule”). Accordingly, we agree with Ibarra that the trial court was obligated to conduct the heai--ing.

The standard for determining whether reversal is required for failing to conduct a Richardson hearing is hannless error. State v. Schopp, 653 So.2d 1016, 1020-21 (Fla.1995). The error is harmless only when the State can demonstrate, beyond a reasonable doubt, that the aggrieved party was not proeedurally prejudiced by the discovery violation. Id. at 1020. “As used in this context, the defense is proeedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.” Id. Because we cannot say beyond a reasonable doubt that the defense was not proeedurally prejudiced by the State’s surprise use of Ibar-ra’s statement to the detective, we must reverse and remand for a new trial. See, e.g., Portner, 802 So.2d at 446 (“In most cases, the decision whether a defendant will testify is a strategic call which can materially alter the outcome of a case. A defendant’s ability to make an informed decision in this regard is certainly affected by the state’s nondisclosure of impeachment material discoverable under the rules.”).

Reversed and remanded for a new trial.

CASANUEVA, C.J., and MORRIS, J., Concur.

      . See Richardson v. State, 246 So.2d 771 (Fla. 1971).


author: PER CURIAM.

text:
    Damion HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2362.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.

      William R. Ponall of Kirkconnell, Lindsey, Snure, Yates & Ponall, P.A., Winter Park, for Appellant.
   PER CURIAM.

Damion Hayes appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of four of his claims, but we reverse and remand for an evidentiary hearing on Hayes’ claim that his trial counsel was ineffective for abandoning the defense of insanity.

In 2005, a jury convicted Hayes of attempted first-degree murder with a deadly weapon and armed trespass on property. He was sentenced to life in prison. His conviction and sentence were affirmed on direct appeal. Hayes v. State, 976 So.2d 1106 (Fla. 2d DCA 2008) (table decision). In 2009, Hayes filed his timely rule 3.850 motion.

In ground one of his motion, Hayes alleged that his counsel was ineffective for abandoning the defense of insanity when counsel was aware that Hayes had a significant history of mental illness and when counsel had originally intended to assert the insanity defense at trial. Hayes acknowledged that counsel was honoring Hayes’ own decision to abandon the defense, but Hayes argued that counsel was unreasonable in doing so.

The postconviction court summarily denied this claim, concluding that it was refuted by the record indicating that it was Hayes’ decision to abandon the defense of insanity. The transcript of the trial indicates that when the trial court questioned Hayes regarding his decision to not testify, the State asked the trial court to address on the record strategic decisions made by Hayes and his counsel. Trial counsel stated that at an earlier court proceeding a week before trial, Hayes chose to forego the insanity defense and to instead plead not guilty. The trial court then addressed Hayes personally, and Hayes confirmed that there was nothing that trial counsel had failed to do that Hayes wished him to do and that Hayes was satisfied with counsel’s services.

We disagree that Hayes’ claim of ineffectiveness is refuted by the record. The record confirms that counsel stated that he was honoring Hayes’ decision to abandon the insanity defense, but the record does not demonstrate that counsel had thoroughly discussed the decision to abandon the defense with Hayes before honoring Hayes’ choice. In other words, the record does not demonstrate that counsel’s decision to abandon the insanity defense at the direction of his client was reasonable under the circumstances of this case. Although Hayes was declared competent to proceed, he had previously been declared incompetent. And counsel had filed a notice of intent to pursue the insanity defense and did not abandon the defense until a week before trial. In addition, it appears from the facts of the case that an insanity defense was likely Hayes’ only viable defense. See Cabrera v. State, 766 So.2d 1131, 1134 (Fla. 2d DCA 2000) (holding that counsel was ineffective for failing to assert an entrapment defense that was legally available and where there was no other viable defense to present).

In Florida v. Nixon, 543 U.S. 175, 178, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), the Supreme Court held that “when a defendant, informed by counsel, neither consents nor objects to the course counsel describes as the most promising means to [protect the defendant at trial], counsel is not automatically barred from pursuing that course.” We recognize that, in this case, there is some evidence that Hayes objected to the defense that counsel intended to assert. But in light of Hayes’ history of mental illness, the evidence against him, and his fragile mental state prior to trial, it is not clear that counsel’s decision to honor Hayes’ objection was reasonable. Therefore, the postconviction court erred in summarily denying this claim. Accordingly, we reverse the denial of this claim and remand for the postcon-viction court to hold an evidentiary hearing to determine whether counsel’s abandonment of the insanity defense was reasonable under the specific facts of this case.

Affirmed in part; reversed in part; and remanded.

ALTENBERND, KELLY, and MORRIS, JJ., Concur.


author: SILBERMAN, Judge.

text:
    D.P. “Rick” WOOD, Appellant, v. UNKNOWN PERSONAL REPRESENTATIVE OF the ESTATE OF Samuel E. BURNETTE and Sharon K. Burnette, Appellees.
    No. 2D09-3984.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.

      Jeffrey A. Aman and Kalei K. McElroy of Aman Law Firm, Tampa, for Appellant.
    John Y. Benford of Benford Gluckman, PL, Orlando, for Appellees.
   SILBERMAN, Judge.

D.P. “Rick” Wood seeks review of the final judgment which awarded him $28,000 for real estate appraisal services he provided to Samuel E. and Sharon K. Bur-nette in an eminent domain action. We reverse because the trial court failed to award Wood prejudgment interest. We reject the remainder of Wood’s arguments without comment.

In August 1998 the Burnettes engaged Wood as an expert real estate appraiser for an eminent domain action filed against them. The Burnettes were ultimately awarded a $3,129,700 judgment in the action. Because the Burnettes used two appraisers and did not call Wood to testify at trial, the court that tried the eminent domain action denied their motion to tax Wood’s fees. When the Burnettes subsequently failed to compensate Wood for his services, Wood sued for payment.

In his complaint, Wood sought $92,300 in unpaid real estate appraisal fees plus prejudgment interest. The Burnettes agreed that they owed Wood real estate appraisal fees but disputed the amount. Based on the testimony of the Burnettes’ expert, the trial court awarded Wood $45,000 in real estate appraisal fees with a deduction for $17,000 in fees already paid, for a total of $28,000. The court’s award did not include prejudgment interest, and the court did not explain the rationale for this omission in the final judgment.

On appeal, Wood argues that the court erred in failing to award prejudgment interest. Wood seeks prejudgment interest from June 17, 1999, which is when he submitted the first invoice for $92,300 in fees to the Burnettes. The Burnettes acknowledge interest would have been due from either January 1, 2002, when Wood requested $92,300 in fees from the Bur-nettes after the court in the eminent domain action declined to award his fees, or October 28, 2002, when Wood filed his complaint. However, they assert that Wood waived his right to prejudgment interest from either of these dates by steadfastly claiming that he was entitled to it from June 17,1999.

This court reviews a trial court’s decision whether to award prejudgment interest de novo. Berloni S.p.A. v. Della Casa, LLC, 972 So.2d 1007, 1011 (Fla. 4th DCA 2008). “ ‘[W]hen a verdict liquidates damages on a plaintiffs out-of-pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment interest ... from the date of that loss.’ ” Bosem v. Musa Holdings, Inc., 46 So.3d 42, 45 (Fla. 2010) (quoting Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215. (Fla. 1985) (alteration in original)). The computation of prejudgment interest “is a purely ministerial duty” and is not affected by the merit of the defense or the certainty of the amount of loss. Argonaut, 474 So.2d at 215. When a fact-finder renders a verdict regarding the amount recoverable for unpaid services, the date of the loss is the date the payment was due. Berloni, 972 So.2d at 1011.

Because the final judgment in this case made a determination of the amount recoverable for unpaid services, Wood is entitled to prejudgment interest from the date of his loss. However, there remains an unresolved question of fact regarding that date. At trial, Wood testified that he believed payment was due on June 17, 1999, which was the date of the first invoice he sent to the Burnettes for $92,300. However, the Burnettes argue that payment was not due until after the court in the eminent domain action ruled on the Burnettes’ request for his fees. Thus, it is arguable that the date of loss is actually January 1, 2002, the date of Wood’s first demand for payment after the eminent domain court denied the Bur-nettes’ request for fees. Contrary to the Burnettes’ assertion, Wood did not waive entitlement to fees from this date by steadfastly asserting prejudgment interest should be calculated from June 17, 1999. While Wood did testify he believed he was owed fees as of June 17, 1999, Wood’s counsel asserted in his written closing argument that the prejudgment interest should be calculated as of January 1, 2002.

The Burnettes erroneously rely on Berloni and Minton v. Spivey, 505 So.2d 476 (Fla. 2d DCA 1987), to argue that prejudgment interest should be calculated as of the date of filing of the complaint, or October 28, 2002. In Berloni, the appellate court used the date of filing as the date of the loss because the trial court was unable to determine the date payment was due based on the facts before it. 972 So.2d at 1012. Similarly, in Minton, the record did not reveal the date of the broker’s demand for payment. 505 So.2d at 478. Contrary to the Burnettes’ argument, the record in this case contains evidence regarding the June 17, 1999, invoice, and the January 1, 2002, demand for payment. Thus, the trial court could have determined that the date of loss was one of those dates and thereby calculated prejudgment interest.

However, the court never determined the date payment was due. Because there is conflicting evidence regarding this date, we reverse and remand for the trial court to resolve this issue from the evidence before it. See, e.g., Carey v. Rocke, 18 So.3d 1266, 1267 (Fla. 2d DCA 2009) (reversing and remanding for further proceedings because the resolution of the appeal “necessarily requires factual determinations in this case”).

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ„ Concur.

      . At trial, Wood claimed prejudgment interest of $80,106.28, computed to the date of trial.


text:
    Cliff VERITY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2381.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.
    Cliff Verity, pro se.
   ALTENBERND, Judge.

Cliff Verity appeals an order denying his fourteen-ground motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the final order denying all of his claims but write to comment on the circuit court’s use of the appropriate procedures to ensure that the order disposing of Mr. Verity’s motion is a final, appealable order on the merits.

Mr. Verity filed his rule 3.850 motion on January 28, 2010, approximately one month after the mandate issued on his direct appeal. On March 8, 2010, the circuit court issued an order denying all claims except ground 11, which asserted that Mr. Verity’s attorney failed to call two potential witnesses for trial. Because this claim was facially insufficient, the court dismissed it pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), with leave to amend within thirty days of the date of that order. Mr. Verity filed an amended motion within the thirty-day limit, and on April 26, 2010, the circuit court issued a final order denying all claims on the merits.

Mr. Verity is now foreclosed from asserting any of these fourteen grounds in another motion for postconviction relief even if he files his motion on or before December 29, 2011, which marks the expiration of his two-year time limit under rule 3.850(b). If he attempts to do so, his motion should be dismissed as successive pursuant to rule 3.850(f). This might appear to be a premature truncation of Mr. Verity’s right to file rule 3.850 motions, yet this is the intent embodied in the Spera decision:

The goal of the procedures adopted in Spera is not to provide defendants with the ability to file additional motions pursuant to rule 3.850 that result in more appealable final orders. Indeed, the goal is just the opposite. Instead of permitting defendants to file multiple motions that are denied or dismissed without reaching the merits, each of which results in a separate appeal, the goal of Spera is to limit most defendants to a single postconviction proceeding under rule 3.850.

Laurrence v. State, 987 So.2d 157, 158 (Fla. 2d DCA 2008). Once the defendant has been given the opportunity to amend a facially insufficient claim, the final order on the motion is a disposition on the merits of all claims, even if the defendant’s attempt to amend the claim results in another insufficiently pleaded ground for relief. A disposition on the merits will also follow if the defendant fails to file an amended motion within the allotted time. See id. at 159; see also Koszegi v. State, 993 So.2d 133, 134 (Fla. 2d DCA 2008). If the defendant then chooses to appeal the disposition, the district court will have a final order for review.

Prior to the implementation of the Spera procedures, this court, in reversing the dismissal of a postconviction motion as successive, observed that “[t]he lack of a prior decision on the merits as to a timely claim is crucial: it will generally bar the postcon-viction court from dismissing a motion as successive.” Crescenzo v. State, 987 So.2d 150, 151 (Fla. 2d DCA 2008). Similarly, in Frew v. State, 947 So.2d 1275, 1276 (Fla. 2d DCA 2007), we reversed the circuit court’s order dismissing a successive motion under rule 3.850(f) because there was no suggestion that the defendant abused the postconviction procedure when he attempted to file an amended motion.

We anticipate that in the future, orders of the type we reviewed in Crescenzo and Frew will be few and far between as the circuit courts follow the Spera procedure and render one final, appealable order after the defendant has been offered a sufficient time to amend facially insufficient claims.

Affirmed.

SILBERMAN and CRENSHAW, JJ., Concur.


text:
    William Grover REDDEN, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-6145.
    District Court of Appeal of Florida, Second District.
    March 2, 2011.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

William Grover Redden, III, was convicted of arson and appeals a restitution order that requires him to pay $50,000 in restitution to his mother. We agree with the State’s concession that the evidence was insufficient to support the restitution award; therefore, we reverse the restitution order and remand for a new restitution hearing.

Redden entered a guilty plea to arson of a house that his mother and her former husband owned. At the restitution hearing, Redden’s mother, Teresa Moura, testified by telephone. Her former husband had stopped making mortgage payments on the house in August of 2007, and the arson occurred in October 2007, leaving the house uninhabitable. Moura testified that at one time the mortgage balance was $340,000 which included penalties and interest for nonpayment. At the time of the restitution hearing, the house was in foreclosure. When asked about her ownership interest in the house, Moura testified that pursuant to the divorce decree she was to receive $62,500 from her former husband “out of his half of the sale of the house.”

Ms. Moura received an insurance payment of $120,225 but turned the payment over to the mortgage company. She explained that she did not want to oversee repairs on the house because she was afraid of her former husband and did not want him to find her at the house. The house was on the market for sale, and Ms. Moura speculated as to the current value of the house, stating that she would be lucky to sell it for $100,000.

The trial court, based on its knowledge of insurance companies, speculated that the insurance payment of $120,225 was inadequate to cover the cost to repair the damage from the fire. The trial court concluded that the house would have been worth at least $120,000 plus the $50,000 Ms. Moura requested and awarded $50,000 in restitution to her.

On appeal the State concedes that the evidence was insufficient to support the restitution award. In a restitution hearing the State has the burden to prove by the preponderance of the evidence and with competent, substantial evidence the amount of the victim’s loss. See § 775.089(7), Fla. Stat. (2007); Gilileo v. State, 923 So.2d 612, 614 (Fla. 2d DCA 2006). The State failed to present sufficient evidence of the value of the house before and after the fire that would allow the court to determine the amount of damage the fire caused. In addition, while Ms. Moura was to receive payment from her former husband after sale of the house, her interest in the house itself at the time of the fire was not established. The State acknowledges that it failed to present sufficient evidence to establish that the insurance proceeds did not fully compensate Ms. Moura for the damages from the fire. Other than the amount of the insurance payment, the State presented no evidence of the amount of damage the fire caused. See Stocks v. State, 687 So.2d 325, 326 (Fla. 5th DCA 1997) (remanding for further restitution hearing on the cost to repair property damaged as a result of the defendant’s criminal mischief). Thus, the evidence did not support a restitution award of $50,000.

Therefore, we reverse the restitution award and remand for a new restitution hearing. See C.M.S. v. State, 997 So.2d 520, 521 (Fla. 2d DCA 2008); Bowman v. State, 698 So.2d 615, 616 (Fla. 2d DCA 1997).

Reversed and remanded.

DAVIS and CRENSHAW, JJ., Concur.


author: CRENSHAW, Judge.

text:
    CORTEZ COMMUNITY BANK, Appellant, v. Michael G. COBB, an individual; Realm Management II, Inc., a Florida corporation; Warren W. Dunphy, individually; Alli-Gators of Trinity, LLC, a Florida limited liability company; Trinity Alli-Gators, LLC, a Florida limited liability company; Alli-Gators of Port Richey, LLC, a Florida limited liability corporation; Realm Management, LLC, a Florida limited liability company; and Realm Management, Inc., a Florida corporation, Appellees.
    No. 2D10-223.
    District Court of Appeal of Florida, Second District.
    March 2, 2011.

      Derrill L. McAteer of The Hogan Law Firm, Brooksville, for Appellant.
    Amanda K. Bennett, A. Christopher Hasten, II, and Keith D. Skorewicz of Bush Ross, P.A., Tampa, for Appellee Michael G. Cobb.
    No appearance for remaining Appellees.
   CRENSHAW, Judge.

Cortez Community Bank (the Bank) appeals the trial court’s final summary judgment of garnishment entered against the Bank and in favor of Michael G. Cobb. Because genuine issues of material fact remain to be determined as to the amount owed by the garnishee Bank, we reverse and remand for further proceedings.

In September 2008, the trial court entered a default judgment against multiple defendants in the amount of $172,194. Cobb subsequently served four writs of garnishment on the Bank, the first of which was served on October 2, 2008, in an attempt to collect upon the default judgment. The Bank, beginning on October 2, 2008, filed responses in letter form to the writs signed by the Bank’s senior vice president and chief operating officer. Four months later on February 12, 2009, the Bank through counsel filed answers to the writs. After a hearing on Cobb’s renewed motion for summary judgment, the trial court entered the final summary judgment of garnishment against the Bank, and the Bank timely filed this appeal.

We review de novo a trial court’s ruling on a motion for summary judgment. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130-31 (Fla.2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. at 130. In ruling on a motion for summary judgment, the trial court is required to consider “the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file.” See Fla. R. Civ. P. 1.510(c). Here, the record before us, including the Bank’s answers to interrogatories, contains disputed issues of material fact regarding the amount owed by the garnishee Bank. We therefore find the trial court erred in granting Cobb’s motion for summary judgment.

Section 77.06(1), Florida Statutes (2008), specifically provides that in a garnishment action, “[sjervice of the writ shall make garnishee liable for all debts due by him or her to defendant ... at the time of the service of the writ or at any time between the service and the time of the garnishee’s answer.” Here the Bank argues that its liability is limited to the time the Bank’s senior vice president and chief operating officer responded to the writs. However, because a corporation cannot represent itself pro se, we find that the Bank’s liability continued until the time the Bank’s counsel filed answers on February 12, 2009. See Nicholson Supply Co. v. First Fed. Sav. & Loan Ass’n of Hardee Cnty., 184 So.2d 438, 440 (Fla. 2d DCA 1966) (“An individual is authorized to represent himself without the necessity of employing an attorney, but this rule is not stretched to permit a corporation to do so.”). We therefore instruct the trial court to determine the amount owed by the garnishee Bank with liability extended to the date the Bank’s counsel filed answers.

Finally, we affirm the trial court’s order denying the Bank’s motion for discharge. The Bank argues that the trial court erred in denying the Bank’s motion for discharge because Cobb did not timely serve a reply to the Bank’s answer pursuant to section 77.061. We reject this argument and find the trial court acted within its discretion in accepting Cobb’s belated reply. See Pa. Threshermen & Farmers’ Mut. Cas. Ins. Co. v. Barrett, 174 So.2d 417, 419 (Fla. 3d DCA 1965) (concluding the trial court acted within its discretion in accepting a late-filed traverse and in refusing to enter judgment for the garnishee based on the late filing because the court acted “in the furtherance of justice and the purpose of the proceeding was not departed from nor materially affected”).

Because genuine issues of material fact remain to be determined as to the amount owed by the garnishee Bank, we find the final summary judgment against the Bank was prematurely granted. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded with instructions.

YILLANTI and KHOUZAM, JJ., Concur.

      . We note that the trial court initially denied Cobb’s motion for summary judgment against the Bank. The trial court changed its position after Cobb's motion for rehearing, con-eluding that the initial answers to the writs filed by the Bank were improperly submitted pro se.

      . Section 77.061 provides the following:
      Reply. — When any garnishee answers and plaintiff is not satisfied with the answer, he or she shall serve a reply within 20 days thereafter denying the allegations of the answer as he or she desires. On failure of plaintiff to file a reply, the answer shall be taken as true and on proper disposition of the assets, if any are disclosed thereby, the garnishee is entitled to an order discharging him or her from further liability under the writ.


author: WELLS, J.

text:
    MIAMI-DADE COUNTY, Appellant, v. SECOND SUNRISE INVESTMENT CORP., Appellee.
    No. 3D09-3236.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.

      R.A. Cuevas, Jr., Miami-Dade County Attorney, and Jorge Martinez-Esteve and Debra Herman, Assistant County Attorneys, for appellant.
    Mark Evans Kass, Miami, for appellee.
    Before WELLS, SALTER, and EMAS, JJ.
   WELLS, J.

Miami-Dade County appeals from a trial court order granting relief from judgment to a tax deed purchaser. We reverse.

In February of 2007, Second Sunrise Investment Corp. secured a deed to a parcel of property at a tax deed sale. That deed, which in accordance with Florida law provided “THIS DEED IS SUBJECT TO GOVERNMENTAL TAXES AND LIENS,” was encumbered by $59,294.38 in County code enforcement liens.

On March 11, 2007, Team Metro, the self-funding County department charged with enforcing code enforcement liens, sent a letter to Second Sunrise advising it of the amount due in order to satisfy the liens. Second Sunrise responded, requesting a reduction in the amount demanded. Two days later, on March 13, 2007, Second Sunrise filed a quiet title action against the property’s prior owner, joining the County because of the “pending code enforcement violation and orders and liens.” Although the County’s liens totaled $59,294.38, and the surplus in the Court Registry amounted to $22,383.23, the complaint alleged that “there are sufficient surplus funds from the tax deed sale to satisfy [the county’s code enforcement] liens.” The County responded by asserting section 197.552 and the primacy of its code liens. On August 30, 2007, Second Sunrise moved for summary judgment, again alleging that the County had been named because of the “numerous code enforcement liens it ha[d] on the subject property,” and again asserting that as to any liens held by the County “[s]aid liens do not survive ... because there are sufficient surplus funds.”

On October 30, 2007, a summary judgment quieting title in Second Sunrise was entered. That judgment not only directed the Clerk of the Court to disburse surplus funds held in the registry to the County to satisfy its liens, it also confirmed that to the extent that such funds were insufficient to satisfy those liens that the liens remained in effect:

The Clerk of Court, Miami-Dade County, pursuant to Florida Statutes Section 197.582(2) shall disburse the surplus funds from the tax deed sale File number 06-525 to Miami-Dade County to the extent necessary to satisfy all liens held by Miami-Dade County.... Pursuant to Florida Statutes Section 197.552 any liens in favor of Miami-Dade County shall survive the issuance of the tax deed and are not effected [sic] by this judgment to the extent not satisfied by the surplus funds from the tax deed sale.

(Emphasis added).

Thereafter, on June 18, 2009, some twenty months later, Second Sunrise filed the instant “Motion for Return of Tax Deed Surplus and for Other Relief.” This motion made no reference to Florida Rule of Civil Procedure 1.540 or the basis on which it was asserting jurisdiction. The substance of the motion was Second Sunrise’s claim that some seven months prior to the October 30, 2007 final judgment quieting title, it had reached a settlement agreement with Team Metro (Miami-Dade County) whereby Team Metro had agreed to take $14,276.59 from the court registry surplus in full satisfaction of the County’s outstanding liens, and contrary to that agreement, the County had taken $22,383.23 from the surplus, leaving certain County Solid Waste liens unpaid.

At the hearing on this motion which followed, Second Sunrise presented a Team Metro internal form titled “Settlement Request Form to Supervisor.” This document, initialed by Team Metro supervisor Carmen Flores, stated the amounts Team Metro would be willing to accept as settlement for its liens. Ali Yasin, Second Sunrise’s principal, claimed that he obtained this document on April 5, 2007 at Team Metro’s offices, and although he could not remember with whom he had met to discuss this matter, it was settled when he noted “Mr. Maroof, Collect from Surplus” on the top of this document. However, neither Mr. Maroof nor anyone else from Team Metro initialed Mr. Yasin’s change to the Team Metro document.

The County did not dispute below that Ms. Flores met with Mr. Yasin on April 5, 2007, or that she proposed compromising the County’s lien claims for $14,276.59. The County claimed, however, that this sum was to be paid by Second Sunrise, not from the surplus being held in the court registry, and that Mr. Yasin rejected Team Metro’s compromise offer by noting at the top of the document that the County was to satisfy its liens from the registry surplus rather than writing a check.

On November 5, 2009, Second Sunrise’s motion was granted and the October 30, 2007 final judgment was “amended” to require the County to return to the court registry a portion of the funds paid pursuant to that judgment:

Plaintiffs motion for Return of Tax Deed Surplus is Granted. The Final Summary Judgment entered October 30, 2007 is amended to require Miami-Dade County to, within 30 days of this Order, redeposit $3462.83 in the Court registry towards payment of Solid Waste liens. The Clerk shall forthwith distribute said funds to the County’s Department of Sold Waste Management for payment of liens.

The County claims that this order must be reversed for a number of reasons, not the least of which is that the court below had no jurisdiction to enter it. We agree.

“Except as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or vacate an order or judgment.” Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1, 3 (Fla.1970); Bank One, N.A. v. Batronie, 884 So.2d 346, 348 (Fla. 2d DCA 2004) (“After rendition of a final judgment, the trial court loses jurisdiction over the case except to enforce the judgment and except as provided by rule 1.540.”); see also Bane v. Bane, 775 So.2d 938, 941 (Fla.2000) (“[T]he one exception to the rule of absolute finality is rule 1.540, ‘which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances.’ ”) (quoting Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla.1986)).

We find no part of rule 1.540 which could be applied to provide the relief granted in this case. As to rule 1.540 provisions (b)(1), (2), and (3), the motion was untimely. There is no allegation that the underlying judgment was void, making provision (b)(4) inapplicable.

As to a claim under provision (b)(5), we conclude that the judgment entered below has not been satisfied by full compliance with the parties’ purported settlement agreement. Indeed, the record suggests that no agreement regarding satisfaction of the County’s liens exists. The face of the “Settlement Request Form to Supervisor,” including the markings thereon, do not evidence a valid enforceable agreement between the parties, but instead documents an offer to settle for a specified sum and an unaccepted counter offer for payment of that sum from a specified fund. As the record confirms, there was no “meeting of the minds” and thus, no resulting agreement. See Seawell v. Hargarten, 28 So.3d 152, 155 (Fla. 1st DCA 2010) (concluding “a misunderstanding cannot result in agreement or to a ‘meeting of the minds’ required to form a contract.”); see also Pan Am. W., Ltd. v. Cardinal Commercial Dev., LLC, 50 So.3d 68, 72 (Fla. 3d DCA 2010) (citing and quoting Bankers Trust Co. v. Basciano, 960 So.2d 773, 777 (Fla. 5th DCA 2007) for the proposition that a contract cannot be created without “mutual assent to a certain and definite proposition”).

The fact that no meeting of the minds occurred was confirmed by the testimony of the two Team Metro supervisors identified by Second Sunrise as having been involved in purportedly coming to an agreement. Both Ms. Flores and Mr. Ma-roof testified that while they had the authority to compromise the amount due on outstanding liens, they had no authority to accept payment of a reduced amount from a registry surplus, and had never done so. This testimony makes sense on a number of levels. First, as these witnesses testified, the funds in the registry were not the tax deed purchaser’s funds to direct or spend. Second, it would make no sense for the County to agree to take less than the amount on deposit in the registry because by law the County’s liens survived the tax deed sale, in this case entitling the County to the entire surplus. See Penzell v. M & M Constr. Group Corp., 915 So.2d 194, 195 (Fla. 3d DCA 2005) (“Section 197.582(2), Florida Statutes (2004) establishes the manner in which excess proceeds from a tax sale must be distributed, and prioritizes ‘the payment of any lien of record held by a governmental unit against the property.’ ”); § 197.582(2), Fla. Stat. (2004). (“Section 197.582(2), in prioritizing liens held by governmental units, requires that governmental liens be satisfied before satisfying other claims.”). Because the record confirms that no settlement was reached between the parties, the final judgment could not have been “satisfied” as contemplated by provision (b)(5) when the County secured more than $14,000 from the funds in the registry. Fla. R. Civ. P. 1.540(b)(5).

Nor can it be claimed that “it is no longer equitable that the [Final Judgment] should have prospective application.” Fla. R. Civ. P. 1.540(b)(5). The law is clear that something must have happened after the entry of final judgment that should “equitably limit[ ]” the judgment’s application to satisfy this condition; here the alleged agreement occurred months before the October 30, 2007 final judgment. See Baker v. Baker, 920 So.2d 689, 692 (Fla. 2d DCA 2006) (“[T]his court has held that the equities mentioned in the rule’s fifth ground are limited to ones that come to fruition after the final judgment.”); see also Brindle v. Brindle, 994 So.2d 1174, 1176 (Fla. 3d DCA 2008); Hensel v. Hensel, 276 So.2d 227, 228 (Fla. 2d DCA 1973) (finding that “the equities spoken of in ground No. 5 of [rule 1.540(b) ] are those which come to fruition [a]fter a final judgment” and concluding that a judgment is “entitled to the ‘finality’ inherent in the concept of res judicata”).

Because Second Sunrise’s motion failed to invoke any basis for conferring jurisdiction under rule 1.540, the court below had no authority to entertain Second Sunrise’s “Motion for Return of Tax Deed Surplus and for Other Relief.” Accordingly, the November 5, 2009 order “amending]” the October 30, 2007 final judgment is reversed.

      . Section 197.552, Florida Statutes (2010), provides in relevant part:
      a lien of record held by a municipal or county governmental unit, special district, or community development district, when such lien is not satisfied as of the disbursement of proceeds of sale under the provisions of s. 197.582, shall survive the issuance of a tax deed.

      . Mr. Maroof is another Team Metro supervisor that Mr. Yasin had dealt with in the past.

      . Ms. Flores maintained that her initials on the settlement form indicated only a confirmation of the figures shown, and was never intended to signify her agreement to Mr. Ya-sin's proposal that the sum be taken from the surplus.

      . Addressing that provision, Florida Rule of Civil Procedure Rule 1.540(b), provides:
      On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: ... (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

      . The proposed "settlement amount” — $14,-276.59 — reflected on the "Settlement Request Form to Supervisor," clearly included the amounts due on Solid Waste liens. That is, if the parties actually reached the settlement alleged, the Solid Waste liens would have also been wiped out in accordance with that settlement. This makes the deed holder’s argument that an agreement had been reached and the amount paid to Team Metro over $14,276.59 had to be returned to the registry to satisfy pending Solid Waste liens, all the more specious.


author: DAMOORGIAN, J.

text:
    Dale HENDERSON and Stardale, LLC, Appellants, v. Vanessa A. ELIAS, Appellee.
    Nos. 4D10-458, 4D10-1135.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.

      Lynn G. Waxman of Lynn G. Waxman, P.A., Palm Beach Gardens, and Warren B. Brams of Warren B. Brams, P.A., West Palm Beach, for appellant.
    Bruce Katzen and Terri Meyers of Klu-ger, Kaplan, Silverman, Katzen & Levine, P.L., Miami, for appellee.
   DAMOORGIAN, J.

Appellants, Dale Henderson and Star-dale LLC, seek review of an interlocutory order denying their motions to dismiss a petition for a temporary injunction filed by Vanessa Elias, personal representative of the estate of William Elias. Henderson moved to dismiss for inconvenient forum under Florida Rule of Civil Procedure 1.061(a), and Stardale moved to dismiss for lack of personal jurisdiction. After denial of both motions, the trial court entered the temporary injunction. We reverse only the order denying Stardale’s motion to dismiss for lack of personal jurisdiction and affirm the trial court’s rulings in all other respects.

By way of background, in 2005, Henderson and William Elias formed Star-dale LLC, a Delaware limited liability corporation. The parties also entered into an operating agreement, the subject of which was the operation of Stardale. The agreement provided, inter alia, that Stardale was to be dissolved upon Elias’s death. Elias died in 2008, but Henderson did not dissolve Stardale. Thereafter, the estate brought suit against Stardale and Henderson in New York for, among other things, breach of the operating agreement. The estate was required to file suit in New York under the terms of the forum selection clause in the agreement. According to the complaint, Elias made several loans to Stardale during his lifetime to finance the company’s operations, which included the purchase, remodeling, and maintenance of two properties in New York. The estate alleged that Henderson refused to repay the loans and to liquidate the assets of Stardale as required by the agreement.

While the New York litigation was proceeding, the estate’s personal representative filed a petition in the Florida probate case for entry of an order preserving the estate’s assets and enjoining Henderson and Stardale from selling either of the two New York properties or otherwise disposing of Stardale’s assets. The petition alleged that the court possessed jurisdiction over Stardale because of the court’s “inherent jurisdiction to monitor the administration of the [ejstate.”

Henderson responded to the petition, alleging insufficient service of process, lack of jurisdiction over Stardale, failure to join Stardale as an indispensable party, forum non conveniens, and failure to allege a cause of action.

The estate filed an amended petition. In the amended petition, the personal representative alleged that the probate court had jurisdiction over Stardale pursuant to the court’s “inherent jurisdiction to monitor the administration of an estate, including the authority to issue injunctions freezing assets claimed to belong to a decedent’s estate.” In addition, the personal representative alleged that Stardale was “owned 50% by the [e]state and 50% by Henderson.” Stardale filed a motion to dismiss, claiming insufficient service of process. At the hearing on the amended petition, the probate court granted Star-dale’s motion to dismiss, holding that Star-dale was not properly served with the petition. The trial court denied Henderson’s motion to dismiss for forum non conveniens and continued the hearing on the request for injunctive relief.

Henderson filed another motion to dismiss the amended petition on the grounds that Stardale was an indispensible party to any injunctive relief the court might grant. In the meantime, the estate personally served Stardale’s registered agent. At the hearing on the request for injunctive relief, counsel for the estate advised the court that Stardale’s registered agent had been served with a copy of the petition. Henderson’s counsel, who had also been Stardale’s counsel at the prior hearing, advised the probate court that he was appearing on behalf of Stardale on a limited basis to contest jurisdiction. The estate argued that the court had personal jurisdiction over Stardale because Stardale’s primary place of business was in Palm Beach County. Additionally, Stardale borrowed money from Elias and from Lydian Bank, and those obligations arose in Palm Beach County. Payment on these loans was also to be made in Palm Beach County.

Stardale responded by arguing that, since it was a foreign corporation, the estate was required to plead jurisdictional allegations in its amended petition which were sufficient to establish personal jurisdiction over Stardale. Stardale went on to argue that the jurisdiction allegations in the amended petition were insufficient to show that Stardale’s conduct fell within the scope of Florida’s long-arm statute, section 48.193(1), Florida Statutes (2009), or to show that Stardale had sufficient minimum contacts with Florida to satisfy constitutional due process requirements. Therefore, Stardale argued, the court had no personal jurisdiction over the corporation. Stardale did not file any affidavits or present any evidence to contest the substance of those allegations in the petition or the estate’s proffer. The court denied Star-dale’s motion to dismiss for lack of personal jurisdiction, finding the requirements of the long-arm statute were satisfied and that sufficient minimum contacts with Florida were established based on Star-dale’s execution of a promissory note payable in Palm Beach County.

The issue before us is whether the estate’s amended petition contains sufficient allegations to establish personal jurisdiction. A determination of whether a Florida court may exercise personal jurisdiction over a non-resident defendant requires a two-step analysis, as elucidated by the Florida Supreme Court in Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). “ ‘First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit’ of Florida’s long-arm statute, section 48.193.” Balboa v. Assante, 958 So.2d 573, 574 (Fla. 4th DCA 2007) (quoting Venetian Salami, 554 So.2d at 502). “If so, ‘the next inquiry is whether sufficient'“minimum contacts” are demonstrated to satisfy due process requirements.’” Id. (quoting Venetian Salami, 554 So.2d at 502). As explained by the supreme court, the proper “procedure” for invoking and challenging the court’s personal jurisdiction is as follows:

Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts. By itself, the filing of a motion to dismiss on grounds of lack of jurisdiction over the person does nothing more than raise the legal sufficiency of the pleadings. A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.

Venetian Salami, 554 So.2d at 502 (citations omitted). If the parties’ affidavits conflict, then the trial court must hold an evidentiary hearing to satisfy the jurisdictional question. Balboa, 958 So.2d at 575 (citing Venetian Salami, 554 So.2d at 503). However, the petitioner bears the “initial burden of pleading a sufficient basis to obtain jurisdiction”; the burden shifts to the respondent to produce affidavits or other evidence only if the petitioner meets this initial pleading burden. Hall v. Tungett, 980 So.2d 1289, 1291 (Fla. 2d DCA 2008) (citations omitted).

We need only address the first prong because Stardale’s challenge “merely raises the legal sufficiency of the pleadings.” Woods v. Nova Cos. Belize Ltd., 789 So.2d 617, 620 (Fla. 4th DCA 1999), accord Venetian Salami, 554 So.2d at 502. The amended petition is devoid of allegations that Stardale committed any act or omission within or directed towards Florida. The sole jurisdictional allegations found in the petition state that Stardale “is a foreign limited liability corporation owned 50% percent by the [e] state and 50% by Henderson” and that the court “has jurisdiction over the parties ... pursuant to its inherent jurisdiction to monitor the administration of the estate.”

We hold that these allegations in the amended petition are insufficient to state a basis for personal jurisdiction over Stardale. The estate made no allegations of conduct by Stardale which would subject the corporation to the jurisdiction of a Florida court under section 48.193(1). The fact that the corporation’s two shareholders would be subject to personal jurisdiction in Florida in their individual capacities does not create personal jurisdiction over the corporation. Cf. Beasley v. Diamond R. Fertilizer, Co., 710 So.2d 1025, 1026 (Fla. 5th DCA 1998) (holding that the conduct of business in Florida by a corporation would not subject its shareholders to personal jurisdiction in Florida). The petition contains no allegations that Stardale is Henderson’s alter ego. See, e.g., Nichols v. Paulucci, 652 So.2d 389, 393 (Fla. 5th DCA 1995). Likewise, no allegations of a principal-agent relationship were found in the petition. See, e.g., TRW Vehicle Safety Sys. Inc. v. Santiso, 980 So.2d 1149, 1152-53 (Fla. 4th DCA 2008). As the estate failed to allege facts bringing Stardale within the reach of the long-arm statute, we need not address whether the allegations, if proven, would demonstrate sufficient minimum contacts with Florida.

Because the allegations in the petition are insufficient, the trial court should have dismissed the amended petition as to Star-dale without prejudice. See World Class Yachts, Inc. v. Murphy, 731 So.2d 798, 800 (Fla. 4th DCA 1999) (holding that dismissal of a complaint for insufficient jurisdictional allegations should be without prejudice to amend). As such, we need not decide whether the evidence adduced at the hearing was sufficient to establish jurisdiction. See Hall, 980 So.2d at 1291. We reverse and remand for further proceedings.

Reversed and remanded.

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

      . The estate attempted service of process on Stardale by certified mail.

      . Henderson appealed that non-final order in case number 4D10-458.

      .Henderson and Stardale appealed the order granting injunctive relief, as well as the court's determination that it could exercise personal jurisdiction over Stardale. We consolidated both appeals.


author: RAMIREZ, C.J.

text:
    James B. NELSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2731.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.
    James B. Nelson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

James B. Nelson appeals the summary denial of his Motion for Post-Conviction Relief pursuant to rule 3.853, Florida Rules of Criminal Procedure. The motion was denied as successive. However, because a review of the record reveals that his prior motion for relief pursuant to rule 3.853 was denied as facially insufficient, we reverse.

“A trial court ‘may not summarily dismiss a successive motion for post-conviction relief that raises issues that were either summarily denied or dismissed for legal insufficiency in the initial motion.’” Spera v. State, 971 So.2d 754, 758 (Fla. 2007), quoting Christopher v. State, 489 So.2d 22, 24 (Fla.1986); McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983) (stating that the prohibition against successive motions applies “only when the grounds raised were previously adjudicated on their merits, and not where the previous motion was summarily denied or dismissed for legal insufficiency”); Frew v. State, 947 So.2d 1275, 1276 (Fla. 2d DCA 2007) (stating that the circuit court’s discretion to dismiss a motion as successive under rule 3.850(f) “does not apply when the previous motion was summarily denied or dismissed for legal insufficiency”); Mancebo v. State, 931 So.2d 928, 929 (Fla. 3d DCA 2006) (“Because there was no denial on the merits and the 3.850 time limit had not expired, the defendant was allowed to file a second Rule 3.850 motion in an attempt to allege legally sufficient claims.”). The court in Spera further stated: “Under rule 3.850(f), therefore, a defendant whose post-conviction claim is denied as facially insufficient may file a successive motion raising the same claim but remedying the insufficiency.” Spera, 971 So.2d at 759. The same applies to motions under rule 3.853.

Reversed and remanded.


text:
    John D. PONDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4230.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Rehearing Denied April 8, 2011.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Anderson, 905 So.2d 111 (Fla.2005).

POLEN, HAZOURI and CIKLIN, JJ., concur.


author: CIKLIN, J.

text:
    Anne Marie SPENCER, Appellant, v. Patricia DiGIACOMO, individually and The Keyes Company, a Florida profit Corporation, Appellees.
    No. 4D09-1926.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Rehearing Denied April 6, 2011.

      Catherine A. Riggins, Miami Gardens, for appellant.
    Manuel Farach of Richman Greer, P.A., West Palm Beach, for appellee Patricia DiGiacomo.
   CIKLIN, J.

Anne Marie Spencer appeals the trial court’s order which contained a satisfaction of a judgment held by Spencer. We reverse the court-issued satisfaction of judgment because it was promulgated while a prior appeal in this case was pending before this court (the “first appeal”). In that the trial court was divested of jurisdiction during the time that we were considering the first appeal, the satisfaction must be vacated.

After an arbitrator found that Spencer, the buyer in a real estate transaction, was entitled to a return of her deposit from Patricia DiGiacomo, the seller, and The Keyes Company, the deposit holder, the trial court confirmed the award by converting it to a final judgment. The trial court, however, did not include prejudgment interest in the final judgment. DiGiacomo and The Keyes Company appealed the final judgment, and Spencer cross-appealed, arguing that prejudgment interest should have been included. See Keyes Co. v. Spencer, 16 So.3d 213 (Fla. 4th DCA 2009).

While the first appeal was working its way through this court, pleadings and contentious hearings continued to proliferate in the trial court below. Apparently, The Keyes Company made payments to Spencer, and believing that the final judgment had been satisfied by these payments, filed multiple motions with the trial court attempting to obtain a satisfaction of judgment. Ultimately the trial court, despite the fact that the first appeal was pending in this court, granted one of the motions and issued a satisfaction of judgment.

We start with the general rule that a trial court loses jurisdiction over a proceeding after a notice of appeal has been filed, with a few limited exceptions. See, e.g., Schultz v. Schiclcedanz, 884 So.2d 422, 424 (Fla. 4th DCA 2004) (“A trial court is divested of jurisdiction upon notice of appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court.”) (citation and internal quotation marks omitted).

“[A] facially valid satisfaction is a complete bar to any effort to alter or amend the final judgment.” Morris North Am., Inc. v. King, 430 So.2d 592, 593 (Fla. 4th DCA 1983). Additionally,

[a]n unconditional satisfaction and release of judgment operates as a total relinquishment of all rights of the judgment creditor in the judgment; it is a complete discharge of the debt created by the judgment and a complete surrender of the judgment creditor’s rights in the judgment, including the right to challenge the judgment on appeal and seek a judgment in excess of the amounts awarded in the trial court’s judgment.

Challenger Inv. Group, LC v. Jones, 20 So.3d 941, 944 (Fla. 3d DCA 2009) (quoting 47 Am.Jur.2d Judgments § 807, at 384-85 (2006)) (emphasis added).

In this case, the trial court issued the subject satisfaction of judgment while the first appeal, which encompassed the issue of prejudgment interest, was pending. Because the satisfaction of judgment signaled that the judgment had been satisfied and operated as a complete surrender of the right to appeal (and therein seek a higher amount including prejudgment interest), the trial court was without jurisdiction to do what it did.

As such, we vacate the trial court’s order of satisfaction of judgment and remand with instructions to the trial court that it calculate prejudgment interest based on our previous holding, Keyes Co., 16 So.3d at 215, and amend the final judgment to include this amount.

The other points on appeal raised by Spencer have been carefully considered and found to be without merit.

Reversed and remanded for further proceedings consistent with this opinion.

POLEN and LEVINE, JJ., concur.

      . As a matter of fact, this court in its opinion addressing the issues raised in the first appeal found that the trial court had erred when it denied Spencer the prejudgment interest to which she was entitled. We reversed and remanded the matter with instructions to make the mathematical computation. Keyes Co., 16 So.3d at 215.


author: SALTER, J.

text:
    Alberto F. JUGO a/k/a Alberto H. Flores, Appellant, v. AMERICAN SECURITY INSURANCE COMPANY, Appellee.
    No. 3D09-3246.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.
    Rehearing Denied April 5, 2011.

      Lopez & Best, and Virgina M. Best, for appellant.
    Hamilton, Miller & Birthisel, and David R. Heffernan, Miami, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   SALTER, J.

A homeowner, Alberto F. Jugo, appeals the circuit court’s denial of his motion for pre-judgment interest on an appraisal award compensating him for an insured loss. The insurer was the appellee, American Security Insurance Company. We affirm.

Background

After a November 2006 fire loss at his home, Jugo filed a claim under the residential homeowner’s policy issued by American. After numerous inspections, in April 2007 American made a payment on the claim in the amount of $46,995.56. Jugo asserted that amount was inadequate and submitted a supplemental claim. American reviewed and denied the supplemental claim on the grounds that the property had been gutted since the time the initial claim was investigated. Jugo filed suit against American in June 2008.

After unsuccessfully seeking to remove the dispute to federal court, American invoked the policy’s appraisal provision. Jugo won an appraisal award for a further $71,307.44, which was paid by American in 30 days. Jugo then filed a motion for prejudgment interest (as measured from the date of the loss in 2006 rather than the date of the award in 2009) on the $71,307.44 portion of the award. The trial court entered an order denying Jugo’s motion, based on our decision in Sunshine State Ins. Co. v. Davide, 15 So.3d 749 (Fla. 3d DCA 2009). Jugo’s motion for rehearing was denied, and this appeal followed.

Analysis

Our decision in Sunshine State reversed an award of pre-judgment interest on a dispute that went to appraisal after the insurance carrier had made an initial payment on a claim. On appeal, Jugo maintains that the trial court should have instead followed this Court’s ruling in North Pointe Insurance Co. v. Tomas, 16 So.3d 977 (Fla. 3d DCA 2009).

In North Pointe, an insurer denied coverage of a homeowner’s claim (for the complete replacement of a marble kitchen floor) from the outset, maintaining that the loss was excluded under the policy. Id. at 978. Only after the insured homeowner filed a petition to compel appraisal did the insurer admit coverage and eventually pay the appraisal award. We held that prejudgment interest from the date of the loss was applicable because the insurer denied coverage for all or any part of the claim. Id. at 979.

In contrast, Sunshine State (as here) involved a homeowner’s claim for which coverage was promptly admitted. The dispute turned on quantifying the covered loss, not the existence of coverage. Sunshine State, 15 So.3d at 749-50. In the absence of some contract provision or statute to the contrary — and none is apparent on this record — the insured is not entitled to pre-judgment interest on the supplemental amount of the appraisal award as computed from the date of the insured loss.

Affirmed.


text:
    Yusef FURQAN, Petitioner, v. STATE of Florida, Respondent.
    No. 2D10-5180.
    District Court of Appeal of Florida, Second District.
    March 4, 2011.
    John E. Hendry, Regional Counsel, Second District, Bartow, and Ngozi C. Acholo-nu, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Clearwater, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   CRENSHAW, Judge.

Yusef Furqan petitions this court for certiorari review of a September 28, 2010, circuit court order continuing his involuntary commitment pursuant to section 916.15(2), Florida Statutes (2010). Furqan argues that the order is facially insufficient because it fails to provide any findings that he has a mental illness and, as a result of that illness, is manifestly dangerous to himself or others. The State concedes that the order is facially insufficient. Because we find that the order fails to include the requisite findings under section 916.15(2), we grant the petition, quash the order, and remand for further proceedings.

Under section 916.15(2), “[a] defendant who is acquitted of criminal charges because of a finding of not guilty by reason of insanity may be involuntarily committed pursuant to such finding if the defendant has a mental illness and, because of the illness, is manifestly dangerous to himself or herself or others.” In this instance, the circuit court examined whether Furqan was mentally ill and manifestly dangerous during the status hearing yet failed to make explicit findings as to either of these factors in its order of commitment. Hence, the order was deficient and resulted in a departure from the essential requirements of law. See Fla. R.Crim. P. 3.217(b)(1); Wisniewski v. State, 805 So.2d 901, 901 (Fla. 2d DCA 2001); Woods v. State, 969 So.2d 408, 410 (Fla. 1st DCA 2007). Accordingly, we grant Furqan’s petition and quash the order continuing his involuntary commitment.

Petition granted, order quashed, and remanded for further proceedings.

CASANUEVA, C.J., and VILLANTI, J., Concur.

      . Furqan also argues that the evidence presented at the hearing was insufficient to support the circuit court’s findings. Because we are remanding for further proceedings based on the facial insufficiency of the circuit court’s order, we express no opinion as to whether the evidence presented supported Furqan's commitment. See Woods v. State, 969 So.2d 408, 410-11 (Fla. 1st DCA 2007).


author: TAYLOR, J.

text:
    James GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1273.
    District Court of Appeal of Florida, Fourth District.
    March 9, 2011.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

James Graham appeals his conviction and sentence for first degree murder with a firearm. He argues that the trial court erred in: (1) denying his motion for judgment of acquittal because the evidence was insufficient to support premeditation for first degree murder and to prove robbery as a predicate offense for felony murder, and (2) admitting a prior consistent statement of the state’s main witness. We affirm.

On the evening of June 30, 2007, Fort Lauderdale police officers found Alvin Daniels dead, with a single gunshot to the chest, lying slumped over the center console of his Jeep Grand Cherokee parked outside his Lauderhill apartment. Officers searched the entire car, but could not find the victim’s wallet or car keys. Although the victim had a cell phone case on his belt, no cell phone was found inside or near the car. The officers were, however, able to obtain the victim’s cell phone records; they learned that his last phone call was made to an individual named Eric McNair. Their investigation later revealed that Phillip Kenneth Watson, a coworker of McNair, told a friend, Mark Martin, about what he heard and saw on the night of the murder.

The police contacted Watson and interviewed him on numerous occasions, but he consistently denied knowing anything about the incident. As a result, detectives asked Watson’s godmother, Theresa Martin, to secretly record a conversation between her and Watson about what he knew of the murder. Martin agreed, and on July 12, 2007, she recorded Watson’s account of the events that occurred on the night of the murder. Two weeks later, on July 24, 2007, police interviewed Watson. He initially denied knowing anything about Daniels’s murder, but he later changed his statement after the police played the recorded conversation between him and Martin. The information he disclosed directly implicated the defendant in the murder and led to his arrest.

At trial, Watson testified that after work on June 30, 2007, he walked to McNair’s home to get change for a twenty-dollar bill. His co-worker, Daniel LaTorre, was there playing a video game in McNair’s bedroom. Watson stayed and watched La-Torre play the video game while he waited for his change. While there, Watson became aware that someone was at McNair’s front door. Although Watson did not see the person standing on McNair’s porch, he recognized the person’s voice as that of the defendant. Watson overheard the defendant, also known as “Slick,” ask McNair for some “fire” or “heat.” Watson said that “heat” means a gun. LaTorre testified that he did not see or overhear the defendant speak to McNair.

Immediately after requesting the gun, the defendant left McNair’s home, but returned about ten minutes later. According to both Watson and LaTorre, the defendant was “breathing hard” and acting “hyper” and “nervous.” LaTorre testified that the defendant moved around fast and said “I got to go.” Watson testified that the defendant confessed that “he just shot the dude in the chest and he’s gasping for air.” Watson also overheard the defendant say that, “he just shot the dude in the chest by accident, and he told everybody to leave.” At that point, Watson observed the defendant pull out a revolver from behind his back and hand it to McNair as Watson walked out of the bedroom. Watson testified that he thought the defendant shot the victim because “he was like trying to get something from him. He was trying to fight with him to get something.” After he left McNair’s house, Watson did not see the defendant, but he saw McNair drive off in a van.

During cross-examination of Watson, the defense implied that Watson’s fear of the police and their threats to arrest him for perjury or homicide influenced him to change his story that he knew nothing about the murder and implicate the defendant during the later portion of the July 24th police interview. On re-direct examination of Watson, the state questioned him about the secretly recorded conversation with his godmother on July 12th. The tape revealed that Watson told his godmother that the defendant came to McNair’s house and said that he had shot a guy in the chest and that he was gasping for air. He stated that he had seen the defendant return a gun to McNair.

The victim’s step-sister, DeWonda Chambers, testified that she had twice seen the defendant over at the apartment she shared with her step-brother in June 2007 and the two appeared to know each other. After the murder, Chambers recalled that the victim’s Figaro gold necklace was missing from his belongings. He frequently wore the necklace, but it was nowhere to be found after his death.

The defendant’s ex-girlfriend, Tamara Tompkins, testified that on July 12, 2007, she pawned a men’s gold necklace that she found inside the drawer of her living room wall unit. According to Tompkins, she had seen the necklace around her apartment in May-prior to June 30, 2007. However, the state published to the jury a taped jail house conversation in which the defendant told Tompkins that she needed to immediately get the necklace back from the pawn shop and to “read between the lines.” In another conversation, the defendant told Tompkins to get the necklace because he did not want her to “get caught up in whatever.”

Leroy Allen Keating, an employee of the pawn shop, recalled from the form Tompkins signed at the time of the transaction that she pawned a men’s Figaro gold necklace similar in style to the victim’s and received two hundred dollars for it on June 12, 2007. Keating acknowledged that there was an unknown amount of gold Figaro chains in the Fort Lauderdale area, but said that there were not many chains that were 10 karat yellow gold, 20 inches in length, and styled for men, which fit the description of the necklace pawned by the defendant’s girlfriend and the necklace worn by the victim.

Alice Benitz, a fingerprint examiner with the Fort Lauderdale police department, found that three fingerprints lifted off the passenger door handle of the victim’s vehicle matched the defendant’s fingerprints. Although the defendant’s fingerprints were found at the scene, crime scene investigator, Brad Jenkins, did not find evidence of a gun, shell casings, or bullets in the vehicle’s vicinity, other than the bullet removed from the victim’s chest. However, Erica Lawton-McWhite, a firearms examiner with the Broward Sheriffs Office, testified that not finding shell casings at the crime scene was consistent with the type of bullet fired and the type of revolver used in the shooting. McWhite explained that the bullet found in the victim’s chest would be fired from a revolver that would not leave shell casings in its vicinity.

After the state rested and the defense rested without presenting any evidence, the defendant moved for a judgment of acquittal. The trial court denied the motion. The jury found the defendant guilty of first degree murder, and the trial court sentenced him to life imprisonment.

On appeal, the defendant argues that the trial court erred in denying his motion for judgment of acquittal because the case against him was based entirely on circumstantial evidence that was insufficient to support his conviction for first degree premeditated murder and felony murder.

Appellate review of the denial of a motion for judgment of acquittal is de novo. Burkett v. State, 992 So.2d 848, 851 (Fla. 4th DCA 2008). The principles that govern a motion for judgment of acquittal are well-established:

Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. If, after -viewing the evidence in a light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. In moving for a judgment of acquittal, a defendant “admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.” We have stated that “courts should not grant a motion for judgment of acquittal unless 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).

However, when a case is completely based on circumstantial evidence rather than on direct evidence, a special standard of review applies. Id. When circumstantial evidence provides the sole proof of guilt, “no matter how strongly it suggests guilt there can be no conviction unless the evidence is inconsistent with every reasonable hypothesis of innocence.” Horne v. State, 997 So.2d 1262, 1265 (Fla. 4th DCA 2009). As such, in cases that solely rely on circumstantial evidence, the state is required to provide substantial competent evidence rebutting the defendant’s theory of events. Reynolds v. State, 934 So.2d 1128, 1145 (Fla.2006). While the state does not have to rebut every possible event variation that might be inferred from the evidence, it has to produce evidence that contradicts the defendant’s theory. Haugabrook v. State, 827 So.2d 1065, 1068 (Fla. 2d DCA 2002). However, mere suspicions without more cannot satisfy the state’s burden of proving guilt beyond a reasonable doubt. Ballard v. State, 923 So.2d 475, 482 (Fla.2006). And the fact that a defendant produced “contradictory evidence as to guilt does not necessarily mandate reversal because the circumstantial evidence rule does not require the jury to believe the defendant’s version of the facts where the State has produced conflicting evidence.” Woods v. State, 733 So.2d 980, 986 (Fla.1999). After “competent, substantial evidence has been submitted on each element of the crime, it is for the jury to evaluate the evidence and the credibility of the witnesses.” Holton v. State, 573 So.2d 284, 290 (Fla.1990) (quoting Hufliam v. State, 400 So.2d 133, 135-36 (Fla. 5th DCA 1981)). A court should not grant a motion for judgment of acquittal unless there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law. Geffkin v. State, 820 So.2d 331, 835 (Fla. 4th DCA 2002).

The state argues that this is not a wholly circumstantial case, as the defendant contends. We agree. Watson’s testimony established that the defendant came to McNair’s home requesting a gun, left the house, and returned five minutes later. He was sweating, breathing hard, and acting nervous. He stated that he had just “shot the dude in the chest by accident” and that the “dude was gasping for air.” Watson saw the defendant remove a pistol or revolver from behind his back and start to hand it to McNair. The defendant’s fingerprints were found on the passenger side door handle of the victim’s car. The car was located a few yards from McNair’s house.

In this case, although there was insufficient evidence from which the jury could infer premeditation, the state presented competent substantial evidence to support its felony murder theory based on robbery. Trial testimony indicated that the defendant took the victim’s gold chain at the time of the victim’s murder. The victim’s step-sister gave him a Figaro gold chain that he wore often. The chain was not found on him or in his belongings after his murder. Recorded portions of two jail phone conversations between the defendant and his girlfriend showed that the defendant was upset that the girlfriend had pawned a similar gold chain she found in the apartment that she shared with the defendant. Reasonable inferences arose from the evidence that the defendant took the gold chain from the victim at the time of the murder. Additionally, Watson testified about his belief that the defendant was trying to fight with the victim to get something from him. Thus, we find no error in the trial court’s denial of the defendant’s motion for judgment of acquittal on the first degree murder charge.

The defendant also argues that the trial court erred in allowing the state to question Watson regarding his prior consistent statements. The statements were made on July 12, 2007 during a secretly recorded conversation between Watson and his godmother. Although the tape recording was not played for the jury, the defendant argues that the trial court erred in allowing the state to question Watson about the prior statements because they were inadmissible hearsay and improperly bolstered his credibility.

Our standard of review of the trial court’s decision to admit Watson’s prior consistent statement is abuse of discretion. Tumblin v. State, 29 So.3d 1093, 1100 (Fla.2010). “ ‘Generally, prior consistent statements are inadmissible to corroborate or bolster a witness’s trial testimony’” because they are usually hearsay, but a prior consistent statement may be admitted as nonhearsay if certain conditions are met.” Id. (quoting Taylor v. State, 855 So.2d 1, 22-23 (Fla.2003)). Under section 90.801(2)(b), Florida Statutes (2008), prior statements of a witness that are “ ‘[cjonsis-tent with the declarant’s testimony and are offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication’ are not inadmissible hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement.” Id. Both conditions must be satisfied to admit a prior consistent statement as non-hearsay. Peterson v. State, 874 So.2d 14, 17 (Fla. 4th DCA 2004) (citing Harris v. State, 843 So.2d 856, 862 (Fla.2003)).

Here, both conditions were met for the admission of Watson’s statement. First, Watson’s statements in the July 12th recording were consistent with his testimony at trial and he was subject to cross-examination regarding these prior consistent statements. Second, defense counsel’s cross-examination of Watson expressly or impliedly charged that Watson’s testimony was improperly influenced by police threats and intimidation. The underlying theme throughout the defense cross-examination was that Watson would tell the police exactly what they wanted to hear in order to avoid being charged with the homicide.

In response, the state questioned Watson on redirect examination about the July 12, 2007 recorded statement to show that Watson’s trial testimony, along with the statements made in the second portion of the July 24, 2007 interview, were not the product of police threats, but rather an independent account of what happened on the night of the murder — free from any kind of improper motive, influence, or fabrication. We conclude that the trial court did not abuse its discretion in allowing the state to question Watson about his prior consistent statement.

Accordingly, we affirm the judgment of conviction and sentence in this case.

Affirmed.

GROSS, C.J., and STEVENSON, J., concur.


author: GERBER, J.

text:
    Robert CRUM, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3077.
    District Court of Appeal of Florida, Fourth District.
    March 9, 2011.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

After having considered all of the arguments which the defendant raises in this appeal, we affirm the defendant’s conviction and sentence for carrying a concealed firearm. We specifically reject the defendant’s argument that the trial court should have instructed the jury on carrying a concealed weapon as a lesser included offense. We rely on the second district’s reasoning in Baldwin v. State, 857 So.2d 249 (Fla. 2d DCA 2003):

Although the definition of “concealed weapon” [in section 790.001, Florida Statutes] differs from the definition of “weapon” in that it does not specifically exclude firearms ... from the category of “other deadly weapon,” we do not believe that the legislature intended for a gun to be a “firearm” when not concealed, but to be both a “weapon” and a “firearm” when concealed. To read the statute in this manner would violate the basic rule of statutory construction that courts should not construe a statute in a manner that leads to an absurd result.

Id. at 251.

Affirmed.

GROSS, C.J., and STEVENSON, J., concur.


author: SUAREZ, J.

text:
    HEBREW HOMES OF MIAMI BEACH, INC., etc., and Hebrew Home of South Beach, Inc., etc., Appellants, v. Alexander LA ROSA, as the Personal Representative of the Estate of Isidro Lopez, Appellee.
    No. 3D10-2129.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Bush Graziano & Rice, and Ronald E. Bush and Erin B. Reynolds, Tampa, for appellants.
    DeMahy, Labrador, Drake, Payne & Cabeza, and Orlando D. Cabeza, Coral Gables, and Victor A. Ruiz, for appellee.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

Affirmed. § 400.023(1), Fla. Stat. (2006); Stalley v. Transitional Hosps. Corp. of Tampa, Inc., 44 So.3d 627 (Fla. 2d DCA 2010); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA 2005).