text:
    Jonathan Rashad JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-192.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.

      Antony P. Ryan, Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Jonathan Rashad Jones petitions for a ■writ of prohibition following the denial of his motion to dismiss. He argues that his prosecution for possession of a firearm by a delinquent is barred by collateral estop-pel as embodied in the Double Jeopardy Clause of the federal and state constitutions. U.S. Const, amend. V; Art. I, § 9, Fla. Const. Having carefully reviewed the record of the trial on the related charges for which Jones was acquitted, we conclude that the jury necessarily determined that the testimony of the state’s key witness was not credible as to the events on the date in question. Accordingly, the state is precluded from again presenting this testimony in order to establish the possession offense. We grant the petition.

Factual Background

On January 2, 2012, a grocery store owner was shot and killed during a robbery. The incident was captured on surveillance video. It was undisputed that Corey Graham, Jr., a close friend of petitioner, had confessed to having committed the robbery and murder. Graham Jr.’s confession to his father was captured on video at the police station. In addition, the record indicates that the surveillance video depicts a distinctive tattoo on the hand of the masked robber — which allegedly matches the tattoos of his mother’s name that Graham Jr. has on his hands.

Based on events that allegedly occurred days later, on January 5, 2012, the state charged Jones with four counts: (1) Accessory After the Fact to Robbery with a Firearm and First Degree Murder; (2) Tampering with or Fabricating Physical Evidence; (3) Tampering with a Witness, Victim or Informant; and (4) Delinquent in Possession of a Weapon/Firearm/Ammunition. Count 4 was severed, and Jones proceeded to trial on counts 1, 2, and 3.

The parties stipulated at trial that a robbery and murder had occurred. The state’s theory against Jones was that the gun that was used in the robbery belonged to Jones and that, on January 5, 2012, Jones had gone to Graham’s home in order to retrieve the gun and dispose of it. To establish the offenses against Jones, the State relied primarily on the testimony of Graham’s mother, Errica Hearns. The state presented no other witness to the events that allegedly occurred on January 5, 2012.

Hearns testified that she had found a handgun in a drawer in Graham’s room and had taken possession of it. On January 4, 2012, Graham asked Hearns for the gun, and on January 5, 2012, he again asked her to give him the gun but with more urgency. Hearns testified that Graham was on the phone while asking for the gun and indicated that he needed to return the gun to his friend, his “homeboy,” as soon as possible. Hearns testified that she saw Jones, who was also on the phone, outside by her door. Jones was telling Graham to get the gun back.

According to her testimony at trial, Hearns heard Jones through the slightly open door and open windows, and over Graham’s phone, threaten to “fuck up” Graham and his family if he did not get the gun back. After hearing this threat, she put the gun in a plastic bag and gave it to Graham who went outside and gave it to Jones. She allegedly saw Jones get into the passenger seat of Graham’s car and saw the bag with the gun between Jones’ legs. Graham then drove away with Jones. Graham returned home about fifteen or twenty minutes later without Jones. Hearns never saw the firearm again, and police never recovered the firearm.

The defense argued vehemently at trial that Hearns, and Graham’s biological father, Corey Graham, Sr., had fabricated the account of Jones’ threats believing that it would benefit their son. According to police, in the first hour of her interview, Hearns had not mentioned anything about Jones having made any threats. It was only after Graham Sr. entered the room and spoke with Hearns that Hearns told police about the alleged threats. The video of Hearns’ interview revealed that Graham Sr. urged her to tell police about the threats in hopes it would assist their son in sentencing.

The defense established in cross-examination that Hearns’ testimony at trial was inconsistent with the interview she had with police on January 9, 2012, just days after the incident. In her interview with police, Hearns stated that Graham was holding the gun and tried to place it in a “little bag” before “they” put it in the car on the floor of the passenger seat. This contrasts with her trial testimony that she saw Graham give the bag with the gun to Jones and that she saw Jones with the bag between his legs in the ear. On redirect, Hearns testified that in the interview she meant to say that Jones was holding the gun.

The defense showed that the cellular phone records did not corroborate Hearns’ account of events. For example, although Hearns testified that Graham was on the phone with Jones for about fifteen minutes during the time Graham was asking for the gun back and when Jones allegedly made the threats, the phone records showed only two brief calls between Jones and Graham — for a total of about fifty-two seconds-during the period in question. The phone records also contradicted Hearns’ testimony that she had called Graham Sr. after finding the gun and that she was on the phone with Graham Sr. during the time that her son was asking for the gun back. Contrary to Hearns’ testimony that she spoke with Graham Sr. after giving the gun to her son, the phone records showed no calls with Graham Sr. on January 5, 2012.

While deliberating the jury asked the following question, “How do we answer element one Accessory After the Fact when Corey Graham Jr., has not been found guilty thru trial?” The court answered the question by repeating the relevant jury instruction on count 1 which required the jury to find that Graham had committed the robbery and murder, not that he had been convicted. The jury then returned a verdict of not guilty on all three counts.

Following the acquittal, the state proceeded with the prosecution of count 4 which charges that Jones, who had allegedly been adjudicated delinquent as a juvenile, unlawfully possessed a firearm on January 5, 2012. The charge is based exclusively on the January 5, 2012, incident allegedly witnessed by Hearns. The trial court denied a defense motion to dismiss this charge on double jeopardy grounds, and this petition follows.

Analysis

A writ of prohibition is a proper remedy to review the denial of a motion to dismiss a prosecution that is barred by double jeopardy. Jackson v. State, 855 So.2d 178, 179 (Fla. 4th DCA 2003) (citing Strawn v. State ex rel. Anderberg, 332 So.2d 601, 602 (Fla.1976)); see also Sher rod v. Franza, 427 So.2d 161, 168 (Fla.1983).

The seminal case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), holds that the principle of collateral estoppel is embodied in the Double Jeopardy Clause. “Collateral estoppel” means simply that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443.

The principle precludes the government from relitigating certain facts in order to establish the fact of the crime, which includes a redetermination of evidentia-ry facts as well as ultimate facts. United States v. Lee, 622 F.2d 787 (5th Cir.1980). Collateral estoppel may be employed to bar prosecution or argumentation of facts necessarily established in a prior proceeding, or it may be utilized to bar subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element of the crime presently charged. United States v. DeMarco, 791 F.2d 833 (11th Cir.1986). A necessarily established fact has been held to be one which has been resolved in favor of the defendant at the prior trial and was essential to the conviction in said case. However, as the court said in Ashe, collateral estoppel does not apply if the verdict could be grounded upon an issue other than that which the defendant seeks to foreclose from consideration.

State v. Strong, 593 So.2d 1065, 1067 (Fla. 4th DCA 1992), rev. denied, 602 So.2d 942 (Fla.1992).

The burden is on the defendant to establish that the issue sought to be foreclosed was necessarily decided in the initial trial. Davis v. State, 645 So.2d 66, 67 (Fla. 4th DCA 1994). The Supreme Court of the United States, however, has cautioned against a hypertechnical approach that could eviscerate the collateral estoppel protections of the Fifth Amendment in all cases where a general verdict has been entered.

[ T]he rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”

Ashe, 397 U.S. at 444, 90 S.Ct. 1189 (citations omitted).

We have carefully considered the record of the prior trial in this case and conclude that the jury’s verdict necessarily decided that the events of January 5, 2012 did not transpire in the manner testified to by the only witness to the events who testified at trial. The possession of a firearm charge appears to be based solely on Hearns’ testimony that on January 5, 2012, Jones made the threats and took possession of the firearm. Petitioner seeks to foreclose the state from relitigating these facts which were fully litigated and the central focus of the first trial.

The state argues that it is not precluded from litigating the question of whether Jones possessed a firearm because it was not necessary for the jury to determine this fact in the first trial. See Ferguson v. State, 946 So.2d 553, 554 (Fla. 4th DCA 2006) (holding that a possession of a firearm charge was not precluded where the jury did not have to decide the possession issue in finding the defendant not guilty of attempted first-degree murder in the first trial).

However, in Ferguson, this court recognized that a prior acquittal for essentially the same conduct can in some circumstances bar a subsequent prosecution. Id. at 554 (citing Morris v. State, 869 So.2d 1264 (Fla. 3d DCA 2004)). In Morris, the jury’s acquittal in the first trial necessarily determined that the encounter constituting the alleged robbery did not occur, and the defendant could not be tried based on the allegation that he possessed a firearm during the robbery. 869 So.2d at 1266. Similarly, in Ashe, the jury’s acquittal of the defendant for robbery of a certain victim precluded the state from relitigating whether the defendant had robbed a different victim in the same incident. 397 U.S. at 445-46, 90 S.Ct. 1189. In Davis, the defendant’s acquittal of the aggravated assault, and of the lesser offense of improper exhibition of a firearm, precluded a prosecution for possession of a firearm because the jury’s verdict necessarily determined that the defendant had not possessed a firearm during the incident. 645 So.2d at 68.

In the present case, the trial court denied the motion to dismiss based on the jury’s question about count 1, the accessory after the fact charge. The jury asked, “How do we answer element one Accessory After the Fact when Corey Graham Jr., has not been found guilty thru trial?” Element one of this count required the jury to find that “a first degree murder and robbery were committed by Corey Graham, Jr.” (emphasis supplied). See § 777.03, Fla. Stat. (2011) (setting forth the accessory after the fact offense). The court answered the jury’s question by repeating this aspect of the jury instruction — which did not require proof that Graham had been convicted. The court noted that, minutes after answering the question, the jury returned its not guilty verdict.

The court’s reasoning seems to suppose that the jury disregarded its instructions and acquitted the defendant of this charge based on an extraneous fact which was not an element of the offense. This reasoning, which essentially speculates that the jury exercised its pardon power, does not square with the jury’s acquittal on count 2, the tampering with evidence charge. To convict of this count, the jury was instructed that it was required to find two elements: (1) that Jones “knew that a criminal trial or proceeding and or an investigation by a duly constituted prosecuting authority or law enforcement agency of this state was pending”; and (2) that Jones “destroyed, concealed, or removed a handgun with the purpose to impair its availability in the trial proceeding of investigation.” See § 918.13, Fla. Stat. (2011).

The jury acquitted Jones of this charge, as well as the tampering with a witness charge, and essentially determined that the state had failed to prove the incident that constituted the basis for all three of the charges. Allowing the state to again present Hearns’ testimony to prosecute Jones for allegedly possessing a firearm in this same incident would violate the spirit and dictates of Ashe. See also State v. Perkins, 349 So.2d 161, 164 (Fla.1977) (holding that “evidence of crimes for which a defendant has been acquitted is not admissible in a subsequent trial”). The credibility of Hearns’ testimony was the central feature of the first trial, and the jury’s verdict could not rationally have been grounded on another basis.

The state argues that the acquittal on count 2 could have been grounded on the jury finding that Jones was unaware of the pending investigation. While this suggestion is “possible,” our analysis must be realistic and rational, not speculative. The firearm was never recovered. The murder occurred in the small town of Belle Glade and was widely reported in the media. The state presented evidence of text messages sent and received by petitioner to watch the news. The state presented evidence at trial that Jones was seen on the surveillance video entering the store about eight minutes before the robbery. The state argued at trial that it was “obvious” Jones knew of the robbery investigation and noted that Jones told detectives that he was aware he was on the video. Hearns learned of the robbery on the day it occurred because she saw the activity when she drove by the store. To conclude that the jury based its verdict on a determination that Jones was unaware of the investigation would be unreasonable.

In Gragg v. State, 429 So.2d 1204 (Fla.1983), the Florida Supreme Court appears to have rejected the argument set forth by the state in this case, as well as the reasoning applied by the trial court. In Gragg, the court agreed that the defendant’s prosecution for possession of a firearm was barred by collateral estoppel where the defendant had been acquitted of aggravated battery and assault with a firearm and where the jury had convicted of simple assault. As in this case, the state argued that collateral estoppel did not apply because the question of simple possession was not at issue in the first trial. Id. at 1206. The Florida Supreme Court rejected the suggestion that the possibility of a jury pardon was an appropriate consideration.

Collateral estoppel does not depend on whether there is any evidence to support the view that the jury may have exercised its pardon power. Practically every jury verdict of acquittal is susceptible to such an interpretation. A jury’s verdict may possibly be based upon a defendant’s demeanor or other matters not reflected by the record. For this reason courts should not speculate on whether the jury has reached its verdict through compassion or compromise. In determining whether collateral estoppel applies, a court should limit its inquiry to whether there was a factual basis, rather than an emotional basis, upon which the jury’s verdict could have rested.

Id. at 1206-07. Here, the only rational basis for the jury’s verdict acquitting Jones of counts 1, 2, and 3 is a finding that Jones did not take possession of the firearm during the incident in question.

Conclusion

Under the circumstances of this case, the state is precluded from prosecuting Jones based on Hearns’ testimony regarding the January 5, 2012 incident. Hearns’ credibility regarding her account of this incident was fully litigated, and this issue was the central focus and the only truly disputed issue in the first trial. The jury through its not guilty verdict on all three counts necessarily determined that the state had failed to prove that Jones possessed the firearm during this incident. Requiring Jones to resurrect his defense to this incident would violate double jeopardy.

We grant the petition. The state may proceed in prosecuting the possession of a firearm charge if it has other evidence to establish the offense. Otherwise, if the state lacks sufficient evidence, the prosecution should be dismissed.

Petition granted.

WARNER, CIKLIN and LEVINE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    G.T., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1983.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

A conviction for resisting an officer without violence requires that the officer was engaged in the lawful execution of a legal duty. G.T. was adjudicated delinquent for resisting an officer without violence when she refused to give the arresting officer her name and personal information after the officer detained her and other juveniles under suspicion of underage drinking and disorderly intoxication. We reverse, holding that the State’s evidence was not legally sufficient to establish that the officer was engaged in the lawful execution of a legal duty when he detained G.T. without reasonable suspicion.

Factual Background

The officer was dispatched to an apartment complex in response to a call about a “disturbance of juveniles drinking and smoking.” He heard loud talking upon arriving at the apartment complex, walked to the rear of the complex near an alley, and approached six juveniles, who appeared to be “fairly young” teenagers. One of the juveniles other than G.T. was holding an empty bottle marked “Bacardi Silver.” As the juveniles attempted to walk away upon seeing the officer, he said to them, “Stop. Hollywood Police.” After they stopped, the officer observed that the juveniles had red, glossy eyes and slurred speech, which indicated to him that they were intoxicated.

The officer asked the juveniles for their names, dates of birth, and parents’ or guardians’ telephone numbers. Every juvenile except G.T. gave the officer the information he requested. G.T. repeatedly responded to the officer’s questioning with, “I have the right to remain silent,” and stated that “[my] brother is in the Air Force, and [I know my] rights.” The officer then arrested G.T. for resisting an officer without violence and disorderly intoxication in a public place.

At trial, defense counsel moved for judgment of dismissal at the close of the State’s evidence and at the close of all the evidence. The trial judge denied the motion and found G.T. guilty.

Analysis

G.T. argues that the trial court erred in denying her motion for judgment of dismissal. She contends that the State failed to prove that the officer was engaged in the lawful execution of a legal duty when he detained G.T. and asked for her name and information.

We review a trial court’s denial of a motion for judgment of dismissal de novo. A.W. v. State, 82 So.8d 1136, 1138 (Fla. 4th DCA 2012). The motion must be granted if the State does not present legally sufficient evidence to support a conviction. Id. Evidence is sufficient if a rational trier of fact, viewing the evidence in the light most favorable to the State, could find the existence of every element of the offense beyond a reasonable doubt. Turner v. State, 29 So.3d 361, 364 (Fla. 4th DCA 2010).

A conviction for resisting an officer without violence requires proof of two elements: (1) the officer was engaged in the lawful execution of a legal duty and (2) the defendant’s actions obstructed, resisted, or opposed the officer in the performance of that legal duty. A.T. v. State, 93 So.3d 1159, 1160 (Fla. 4th DCA 2012). To be engaged in the lawful execution of a legal duty in detaining a person, an officer must have reasonable suspicion of criminal activity by the person. Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008).

“For reasonable suspicion justifying a detention to exist, the detaining offi-eer[] must have a particularized and objective basis for suspecting the particular person stopped of criminal activity ... The officer must be able to articulate something more than an inchoate and unpartic-ularized suspicion or hunch.” O.B. v. State, 36 So.3d 784, 786-87 (Fla. 3d DCA 2010) (citations omitted) (internal quotation marks omitted). In A.T., this court held that the officer’s observation that the appellant was merely “standing with a group of individuals surrounded by the odor of burned marijuana was [insufficient] to supply more than a mere suspicion” that the appellant possessed marijuana. 93 So.3d at 1161 (internal quotation marks omitted).

In addition, “[w]hether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” Fuentes v. State, 24 So.3d 1231, 1234 (Fla. 4th DCA 2009) (quoting Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001)). A reasonable suspicion analysis cannot include consideration of any fact that comes to light after an officer stops or detains an individual. See Majors v. State, 70 So.3d 655, 660-61 (Fla. 1st DCA 2011).

Here, the State failed to establish that the officer reasonably suspected G.T. of criminal activity. Thus, the officer was not engaged in the lawful execution of a legal duty when he detained G.T., and, in refusing to answer the officer’s questions, G.T. did not obstruct the performance of any legal duty.

Because the officer merely heard loud talking and observed that only one of the juveniles who was not G.T. was holding the empty liquor bottle, he lacked a particularized and objective basis for suspecting that G.T. herself was engaged in criminal activity. The State was unable to articulate specific facts to connect G.T. to the empty liquor bottle or to demonstrate that the officer had more than an inchoate hunch that this group of juveniles was the one he had been dispatched to investigate. Similar to AT., where the smell of marijuana in the general area did not imply a connection between the appellant and marijuana, here, the fact that one of the other juveniles was holding the empty liquor bottle did not imply a connection between G.T. and the alcohol. See 93 So.3d at 1161.

Furthermore, the totality of the circumstances, based solely on facts known to the officer before the stop, did not indicate any suspect behavior on the part of G.T. The State argues that the juveniles’ red, glossy eyes and slurred speech indicated to the officer that they were intoxicated. The officer made this observation, however, after he detained them. Therefore, that observation cannot form any part of the basis for the officer’s reasonable suspicion justifying the detention.

Because the officer lacked reasonable suspicion and was therefore not engaged in the lawful execution of a legal duty, G.T.’s refusal to answer the officer’s questions did not constitute obstruction. Therefore, we reverse the trial court’s denial of judgment of dismissal and remanded for discharge.

Reversed and remanded.

DAMOORGIAN, C.J., CIKLIN and CONNER, JJ., concur.


text:
    Fritztin REGISMA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1392.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.
    Opinion on Rehearing Aug. 21, 2013.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing filed July 12, 2013, withdraw the previously issued per curiam affirmance, and substitute this opinion. Further, we sua sponte redesignate this appeal as an appeal of an order denying a rule 3.800 motion.

Following a jury trial, appellant was convicted of three second-degree felony offenses: (I) attempted kidnapping, (II) lewd or lascivious molestation of a person less than sixteen years of age, and (III) aggravated battery with a deadly weapon. At appellant’s sentencing hearing, the trial court expressed its intention to impose a combined sentence of twenty years imprisonment followed by fifteen years of sex offender probation. To effectuate this plan, the trial judge orally sentenced appellant as follows:

Count I; Fifteen years imprisonment;
Count II; Five years imprisonment followed by ten years of sex offender probation, with both to run consecutive to Count I; and
Count III: Five years imprisonment, to run concurrent to counts I and II, and five years of sex offender probation, to run consecutive to Count II.

The court’s written sentencing documents, however, differed from the oral pronouncement in that Count Ill’s terms of imprisonment and probation were both set to run concurrently to counts I and II. In addition, the written order stated that Count II would be served consecutive to Count I, but concurrent to Count III.

Following the sentence’s rendition, appellant filed a Rule 3.800(b)(2) motion to correct illegal sentence, asserting two grounds of relief. First, appellant requested that the trial court modify counts II and III of the written sentencing documents to conform to its oral pronouncement. In addition, appellant contended that Count III of his sentence was illegal since the condition that he serve his prison term concurrent to counts I and II, and his probation sentence consecutive to Count II, violated the requirement that a defendant serve his sentence in one stretch.

Although the trial court entered an order granting appellant’s motion in part, it did so more than sixty days after the motion was filed, rendering the order a nullity and the motion denied. See Fla. R. Crim. P. 3.800(b)(2)(B) (“If no order is filed within 60 days, the motion shall be considered denied.”); Sessions v. State, 907 So.2d 572, 573 (Fla. 1st DCA 2005); De La Fuente v. State, 58 So.3d 394, 395-96 (Fla. 2d DCA 2011). Since the State concedes on appeal that the inconsistencies between the trial court’s oral pronouncement and written sentencing documents as to counts II and III are the result of clerical error, we remand with instructions for the trial court to modify its written sentencing order to conform to its oral pronouncement. See Chrystie v. State, 95 So.3d 1027, 1028 (Fla. 5th DCA 2012) (“Where a conflict exists between the oral pronouncement of sentence and written sentencing documents, the oral pronouncement controls.” (citing Williams v. State, 957 So.2d 600, 603 (Fla.2007)); Harmon v. State, 599 So.2d 754, 757 (Fla. 4th DCA 1992) (“[A]n oral pronouncement is controlling when a clerical error causes the written order to be inconsistent with the oral pronouncement ....”) (citation omitted)). In addition, we agree with appellant that Count III of his sentence is erroneous to the degree it requires him to serve a prison term concurrent to the prison terms of both counts I and II, since a prisoner is incapable of serving a term of imprisonment concurrent to two counts that run consecutively to each other.

We disagree, however, with appellant’s contention that the sentencing structure of Count III is illegal as a violation of his right to serve his sentence in one stretch. Generally, Florida courts are without authority to impose “ ‘piecemeal’ sentences that are interrupted and, thus, divided without the defendant’s consent.” Goodwin v. State, 752 So.2d 689, 691 (Fla. 1st DCA 2000); Massey v. State, 389 So.2d 712, 713 (Fla. 2d DCA 1980) (“There is nothing in our statutes which purports to authorize an interrupted sentence.”). Since “a prisoner is entitled to pay his debt to society in one stretch,” Segal v. Wainwright, 304 So.2d 446, 448 (Fla.1974), “imposing a prison sentence that is part concurrent with and part consecutive to another prison sentence is a punishment that no judge ... could possibly inflict under any set of factual circumstances.” Stroman v. State, 837 So.2d 1070, 1071 (Fla. 2d DCA 2003) (emphasis added); see, e.g., Segal, 304 So.2d 446 (invalidating a sentence which sandwiched a nine year sentence between portions of a five year robbery sentence); Rozmestor v. State, 381 So.2d 324 (Fla. 5th DCA 1980) (reversing where two years of the defendant’s four-year prison sentence were to run concurrent to a prior sentence, while the other two years would run consecutive to the prior sentence).

However, as the Supreme Court has recognized, unlike interrupted prison terms, “a probationary split sentence does not create gap time so long as ... probation immediately follows incarceration.” Horner v. State, 617 So.2d 311, 313 (Fla.1993). Thus, a multiple-count sentencing structure which places a period of imprisonment or probation between another count’s prison and probationary term is not inherently invalid so long as the incar-cerative portions of all counts are completed before any probationary portion begins. See, e.g., Jackson v. State, 615 So.2d 850 (Fla. 2d DCA 1993) (approving sentence which required the defendant to serve the jail term for the second count of a two-count conviction between the jail term and probationary period for the first count); Hatton v. State, 689 So.2d 1195 (Fla. 4th DCA 1997) (affirming a two-count sentence which required the defendant to serve three months in county jail followed by two years probation on Count I, to run concurrent with his Count II sentence of one year in county jail followed by three years of probation).

Reversed and remanded with instructions.

GROSS, MAY, JJ., and JOHNSON, LAURA, Associate Judge, concur.


author: SINGHAL, RAAG, Associate Judge.

text:
    Keiarra Vonshay JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4352.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.
    Ira D. Karmelin, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   SINGHAL, RAAG, Associate Judge.

Keiarra Vonshay Jackson appeals her conviction for aggravated battery with a firearm and aggravated assault with a firearm. On appeal, Jackson raises the following five points: (1) the trial court erred in denying her motion to disqualify the trial judge; (2) trial counsel rendered ineffective assistance of counsel by failing to request an alibi instruction; (3) the trial court committed fundamental error in its jury instruction for aggravated assault by defining aggravated assault as simple assault and omitting the definition of “deadly weapon” from the instruction; (4) the sentence on the aggravated assault charge is illegal because the information only invoked the actual possession and not the discharge section of the 10/20/Life statute; and (5) the written costs order does not conform to the trial court’s oral pronouncement because the trial court did not indicate it would impose a fíne, but included a $1.00 fíne in its order assessing costs. We affirm as to points 1, 2, 4 and 5 without discussion. We find merit as to point 3. Accordingly, we reverse Jackson’s conviction for aggravated assault and remand for the trial court to adjudicate Jackson guilty of the lesser-included offense of simple assault and to resentence her on that charge.

Factual Background

Jackson attended a party at a park. Sometime after the party ended, Jackson became involved in an argument during which she allegedly brandished a firearm in a threatening manner as to one victim and actually shot another victim. In addition to charging Jackson with aggravated battery with a firearm and aggravated assault with a firearm, the State also charged Jackson with one count of felon in possession of a firearm or ammunition. That count was severed and handled separately. The entire evidence and factual basis as to the two charges before the jury centered around Jackson and the firearm.

After closing arguments, the trial court instructed the jury. Jackson did not object to the jury instructions. The jury instructions and the verdict forms included the language pertaining to actual possession and discharge of a firearm necessary to support enhanced mandatory minimum sentencing under the 10-20-Life statute. The jury found Jackson guilty, and the trial court sentenced her to mandatory minimum terms on each count. This appeal followed.

Analysis

In her third point on appeal, Jackson argues that, despite the lack of an objection to the jury instructions, the trial court committed fundamental error in its jury instruction for aggravated assault by defining aggravated assault as simple assault and omitting the definition of “deadly weapon” from the instruction. Because there was no objection to the jury instructions, any error must be fundamental to require reversal. See State v. Weaver, 957 So.2d 586, 588 (Fla.2007). “For an error to be fundamental, ‘the error must reach down into the validity of the trial itself to the extent that a verdict could not have been obtained without the assistance of the alleged error.’” Frederick v. State, 93 So.3d 445, 447 (Fla. 4th DCA 2012) (quoting Weaver, 957 So.2d at 588). More specifically, it is fundamental error when “a jury instruction incorrectly defines a disputed element of the crime in such a way as to reduce the state’s burden of proof.” Kennedy v. State, 59 So.3d 376, 381 (Fla. 4th DCA 2011).

Here, the trial court instructed the jury on aggravated assault as follows:

Count II, aggravated assault: To prove the crime of aggravated assault the State must prove the following three elements beyond a reasonable doubt— the first three elements define assault:
One, Keiarra Jackson intentionally and unlawfully threatened, either by word or act, to do violence to ... [the victim].
And two, at the time Keiarra Jackson appeared to have the ability to carry out the threat.
And three, the act of Keiarra Jackson created in the mind of [the victim] a well-founded fear that violence was about to take place.
It is not necessary for the State to prove that the Defendant had an intent to kill. If you find the Defendant guilty of aggravated assault, then you must further determine beyond a reasonable doubt if in the course of committing the aggravated battery, the Defendant carried a firearm.
If you find the Defendant carried a firearm during — excuse me — in the course of committing the aggravated assault, you should find her guilty of aggravated assault with a firearm.
If you find that the Defendant carried no firearm during the course of the committing of the aggravated assault, but did commit the aggravated assault, you should find her guilty of aggravated assault.

(emphasis added).

The Standard Jury Instruction for aggravated assault differs from the instruction read at trial and reads as follows, in pertinent part:

To prove the crime of Aggravated Assault, the State must prove the following four elements beyond a reasonable doubt. The first three elements define assault.
Give ka or kb as applicable.
4. a. [The assault was made with a deadly weapon.]
b. [The assault was made with a fully-formed, conscious intent to commit (crime charged) upon (victim).]
If kb is alleged, define the crime charged.
Definition. Give ifka alleged.
A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.
Give ifka alleged.
It is not necessary for the State to prove that the defendant had an intent to kill.

Fla. Std. Jury Instr. (Crim.) 8.2 (2008) (bold emphasis added).

The jury instruction the trial court read for aggravated assault did not include element 4a of the Standard Jury Instruction. Additionally, the trial court did not define “deadly weapon.” Although the verdict form did ask the jury to make a finding as to whether Jackson carried a firearm, the instruction reduced the State’s burden of proof to the elements of simple assault. This was error. Kennedy, 59 So.3d at 381.

Further, the trial court instructed the jury that Jackson could be found guilty of aggravated assault even if the jury found she did not possess a firearm. This compounded the error as, under the facts of this case, the firearm was the deadly weapon which should have been element four in the jury instruction. Without it, no aggravated assault could have occurred.

Conclusion

Because the jury instruction as to aggravated assault with a firearm did not include an element of the crime, we reverse Jackson’s conviction on that count. We remand for the trial court to adjudicate Jackson guilty of the lesser-included offense of simple assault and to resentence her on that charge. We affirm Jackson’s conviction and sentence for aggravated battery with a firearm.

Affirmed in part; reversed and remanded in part.

DAMOORGIAN, C.J., and STEVENSON, J., concur.

      . Jackson's claim regarding the failure to request an alibi jury instruction is more properly handled in a Florida Rule of Criminal Procedure 3.850 proceeding.

      . The written instructions also omitted these portions of the Standard Jury Instruction.


author: MAY, J.

text:
    Q.J.L., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-601.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

A juvenile appeals a final disposition order finding him guilty of attempted burglary of a dwelling and criminal mischief, withholding adjudication, and sentencing him to probation and community service. He argues that trial counsel was ineffective on the face of the record for not moving to suppress his videotaped statement, and that the trial court erred in denying his motion to dismiss. We agree with the latter argument in part and reverse.

The State filed a Petition for Delinquency against the juvenile, alleging that he committed an attempted burglary of a residence and criminal mischief. After his arrest, the juvenile gave a videotaped statement. And, although he was adjudicated incompetent to proceed due to his age and immaturity, his defense counsel never moved to suppress the statement.

On the day of trial, defense counsel informed the court that he and a previous prosecutor had informally agreed that the juvenile’s statement would not be admitted. Defense counsel assumed the finding of incompetency carried over to the juvenile’s ability to waive his Miranda rights. Given the informal agreement, he did not file a written motion.

Defense counsel addressed the issue again when the State admitted the statement into evidence. He indicated that his agreement had been with a prior prosecutor, and he did not want to “blindside” the new prosecutor. For this reason, he simply placed his understanding on the record.

The victims’ son testified that he was living at his parents’ home at the time of the attempted burglary. The backyard was enclosed and accessible through a gate near the kitchen/patio area. The gate was usually locked.

Around 9:00 a.m., the victims’ son heard a knock on the front door and two people talking. Five to ten minutes later, he heard voices coming from the kitchen area. He then heard a window break so he went to investigate. He discovered a broken window in the sunroom/indoor patio located at the back of the house. He went to his parents’ bedroom, locked the door, and called the police.

When law enforcement responded, an officer saw a person, later identified as the juvenile, crossing the street in front of the victims’ house. The officer did not stop him at that point. The officer went to the back of the house to see if the perpetrators were still there. He then issued a BOLO for the person he had seen crossing the street.

The officer identified photographs of two distinct sets of shoe prints found outside the broken window. One set of shoeprints had a zigzag pattern; the other did not. The shoeprints appeared to be fresh.

Another deputy testified that she saw the juvenile identified in the BOLO standing alone either across the street or just around the corner from the victims’ house. She detained him. The juvenile told the officers that he lived down the street and was coming back from McDonald’s. Both the officer and the deputy noticed a fresh abrasion on the inside of the juvenile’s left forearm. The juvenile told them that he scratched his arm the day before.

The juvenile was wearing white Nike shoes with a zigzag pattern on the soles. Although he was wearing a black leather jacket when first seen, he did not have it on when the officer spoke to him later that morning. The juvenile later told the investigating detective that he gave the jacket to his mother when she came to the scene because she was cold.

The officer testified that the grooves in the soles of the juvenile’s shoes were filled with dirt similar to the dirt under the victim’s broken window. The officer agreed there was similar dirt next to the sidewalks and throughout the neighborhood.

A detective interviewed the juvenile two months later. In the videotaped interview, the juvenile indicated that he had been “read his rights” before, and the detective read Miranda warnings to him. The juvenile was fifteen years old at the time. After reading each right, the detective asked if he understood. The juvenile did not verbally respond, but initialed the waiver form after each question. The interrogation started after midnight and finished a little after 1:00 a.m. A copy of the written waiver was entered into evidence.

During the interview, the juvenile initially denied any involvement, but the detective told him that the shoeprints and the scratch on his arm suggested he may have broken the window. The detective then encouraged the juvenile to be honest. At that point, the juvenile stated: “I don’t want to talk because now you saying I’m lying.” The juvenile remained silent for about 40 seconds, but then gave brief answers to irrelevant questions.

The juvenile told the detective that he and his sister were walking home from McDonald’s when a boy from his school and another boy told him they were going “to hit that house.” The juvenile told the boys, “I ain’t on this. I’m with my sister. This ain’t me.” He “cleared it” and walked away. When the police came, he told his sister to go home, and that is when the deputy stopped him.

The detective then asked the juvenile if he went into the victims’ backyard. The juvenile responded: “I was standing by the gate, jumped the gate. I’m like, ‘Man, I ain’t on this. You-all tripping.’ ” The other boys stayed in the yard and the juvenile left. When the detective asked who broke the window, the juvenile told him that it was the boy from school. The juvenile maintained he could not have cut his arm on the window because he was wearing the long-sleeved leather jacket, a fact that was corroborated by the officer’s testimony.

The juvenile also denied leaving shoe-prints near the window and told the detective that all three boys were wearing the same Nike sneakers. At the end of the statement, the juvenile said that he initially agreed to go with the boys because he was bored. But when the boys asked if he was ready, he said, “No. I’m fitting to clear it. I don’t feel it. I ain’t on that this morning.”

After the State rested, the defense moved for a Judgment of Dismissal and argued that the State had failed to prove every element beyond a reasonable doubt. The court denied the motion. The defense did not call any witnesses.

The court made specific findings of fact. The court found: (1) the scratch on the juvenile’s arm was insignificant because there was nothing tying it to the incident; (2) the juvenile was wearing “as typical a shoe as you can have”; (3) the dirt in the tread of the shoe was the same dirt that could be found throughout the neighborhood; and (4) “nothing about ... the dirt on his sneakers or the sneaker pattern ties him to this crime.” Nevertheless, the trial court relied on his presence in the area and his taped admission to “being there, knowing what they were doing before they went .... and staying while they broke in.”

The trial court found the juvenile guilty of attempted burglary of a residence and criminal mischief. The court withheld adjudication and placed the juvenile on probation. The trial court also ordered restitution.

The juvenile argues that his counsel’s failure to move to suppress his videotaped statements constituted ineffective assistance of counsel appearing on the face of the record. The State responds that the juvenile’s claim is not cognizable on direct appeal. Although ineffective assistance of counsel that is clear from the face of the record is reviewable on direct appeal, the State maintains there is no clear error in this record. We agree.

An ineffective assistance of counsel claim is subject to de novo review. Bowman v. State, 748 So.2d 1082, 1083-84 (Fla. 4th DCA 2000).

We have reviewed the videotaped statement and the trial testimony. We cannot discern from this record whether counsel was ineffective in deciding to forego a motion to suppress the statement.. The statement was largely exculpatory in nature, and counsel may have decided that it was more helpful than harmful. For this reason, we decline to reach the ineffectiveness claim in this appeal without prejudice to the defendant subsequently raising the issue. See Dennis v. State, 696 So.2d 1280 (Fla. 4th DCA 1997).

This brings us to the juvenile’s second argument that the trial court should have granted his motion for judgment of dismissal because the evidence was insufficient to prove his guilt of attempted burglary of a residence and criminal mischief. We agree.

“We apply a de novo standard of review for a motion for judgment of dismissal.” J.T. v. State, 47 So.3d 934, 935-36 (Fla. 4th DCA 2010).

The trial court articulated the circumstantial nature of the evidence and how most of the State’s evidence failed to prove anything. The evidence consisted of similar shoe prints found near the broken window, dirt in the sole of the juvenile’s shoe, a scratch on his arm, his presence near the crime scene, and his admission that he went into the backyard. As he argues in his brief, while insufficient to prove attempted burglary and criminal mischief, the evidence was sufficient to establish a trespass.

The juvenile’s hypothesis of innocence was that, although he went into the backyard, he left before any crime other than trespass had been committed. He maintained that he scratched his arm the day before the incident, and could not have injured it when the window was broken because he was wearing a long-sleeved jacket. The State offered nothing to contradict this hypothesis of innocence. The trial court should have entered a judgment of dismissal as to the crimes charged and found him guilty only of trespass. The trial court’s specific factual findings support this result.

We therefore reverse and remand the case for the trial court to reduce the finding of guilt to trespass and to reconsider the disposition order.

Reversed and Remanded.

GROSS, J. and JOHNSON, LAURA, Associate Judge, concur.


text:
    Gregory J. GRIBBLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-799.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.

      Gregory J. Gribble, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the summary denial of his Rule 3.850 motion alleging ineffective assistance of trial counsel. See Fla. R. Crim. P. 3.850. He argues that counsel was ineffective for misadvising him of the maximum sentence he faced, which caused him to reject a five-year plea offer. We agree that the summary record does not refute this allegation. We therefore reverse and remand the case to the trial court for further proceedings.

The State charged the defendant with driving with a suspended or revoked license and possession of cocaine. The defendant argues that counsel advised him that he faced a maximum sentence of five years’ imprisonment if convicted of driving with a suspended or revoked license, but failed to advise him of the potential of receiving a habitual offender sentence of ten years on the driving charge. See § 322.34(5), Fla. Stat. (2007). He alleges that he rejected a five-year plea offer based on that misadvice.

At trial, he was convicted of driving with a suspended license, but acquitted of the felony drug charge, which also carried a five-year maximum penalty. The State sought habitualization under section 775.084, Florida Statutes (2007). The court sentenced the defendant to eight years in prison as a habitual felony offender-three years more than he thought he faced on that charge. The defendant alleges that had counsel advised him of this possibility, he would have accepted the five-year plea offer.

The State acknowledges that counsel can be deemed deficient for misinforming a defendant about the maximum length of the sentence. It argues, however, that there is no prejudice because the defendant could have received a total of ten years if convicted of both the driving and drug offenses, and the court sentenced him below that amount. See, e.g., Steel v. State, 684 So.2d 290, 291 (Fla. 4th DCA 1996). The State contends the defendant continued to have exposure to a ten-year sentence as a habitual offender, which is the same as the ten years he thought he faced if convicted of both charges. Therefore, the State argues he was not prejudiced by any alleged misadvice of counsel.

Even assuming that counsel misad-vised the defendant as alleged, the summary record does not refute the lack of prejudice under these circumstances. As the Florida Supreme Court recently explained, the proper prejudice inquiry should focus on whether the defendant would have accepted the plea if properly advised. Alcorn v. State, 121 So.3d 419, 2013 WL 2631143 (Fla. June 13, 2013).

[ T]he prejudice inquiry under Frye and Lafler is now whether the defendant has shown a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time, not whether he received the same sentence as what he was incorrectly advised.

Id. at 432 (citations omitted) (citing Missouri v. Frye, - U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)).

We therefore reverse and remand the case to the trial court to either attach portions of the record conclusively refuting the defendant’s claim or to hold an eviden-tiary hearing addressing Alcorn. Beginning with the last prong first, the defendant’s sentence under the terms of the offer (five years) was less severe than the sentence imposed (eight years). Therefore, the remaining issues to be resolved by the trial court are whether the defendant can demonstrate a reasonable probability that: (1) he would have accepted the offer had counsel advised him of the correct statutory maximum sentence; (2) the prosecutor would not have withdrawn the offer; and (3) the court would have accepted the offer’s terms. See id.

Reversed and Remanded for further proceedings consistent with this opinion.

MAY, LEVINE and FORST, JJ., concur.


text:
    Edward F. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1120.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.
    Edward F. Smith, Wewahitchka, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Edward F. Smith appeals the denial of his untimely and successive Rule 3.850 motion again attempting to collaterally challenge his 1996 conviction and sentence. The November 2012 motion raises a frivolous claim of newly discovered evidence. He claims that the prosecutor was an “imposter” because he was allegedly not designated or appointed to sign the indictment. It is well-established that this type of claim is frivolous. Roker v. State, 25 So.3d 647 (Fla. 4th DCA 2010). An allegation that a charging document was not properly signed or verified provides no basis for postconviction relief. See Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009); Fla. R.Crim. P. 3.140(g); see also Fla. R.Crim. P. 3.140(o).

The Clerk of this Court is directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat. (2012). Appellant is cautioned that any further frivolous filing will result in the sanction of this court no longer accepting his pro se filings. State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed. Appellant referred to prison officials.

GROSS, CIKLIN and FORST, JJ„ concur.


text:
    Jesse ANDRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-557.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.
    Richard F. Della Fera of Entin & Della Fera, P.A., Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Chaidez v. United States, - U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, - So.2d - (Fla.2012).

STEVENSON, GROSS and CONNER, JJ., concur.


text:
    Wilbert JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D13-157.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.
    Wilbert Johnson, Jr., Pahokee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Wilbert Johnson, Jr., appeals the denial of a rule 3.800(a) motion which sought additional credit for two periods of time served in the county jail. He has not shown that he is entitled to additional credit from the trial court. The Department of Corrections (DOC) is responsible for calculating the credit for time served while he was in the county jail awaiting a hearing on a postconviction motion. Beckwith v. State, 799 So.2d 310, 311 (Fla. 2d DCA 2001). Generally, the trial court would be responsible for calculating the credit for time served in the county jail after the original sentence was vacated and until appellant was resentenced. Id. However, it appears that, at resentencing, the trial court imposed the new sentence nunc pro tunc to the date of the original sentence. Thus, the time for which appellant seeks additional credit would be post-sentencing credit calculated by DOC. See Arnett v. State, 626 So.2d 308, 309 (Fla. 1st DCA 1993) (concluding there was no error where the sentence did not include credit between the original sentence and resen-tencing because the nunc pro tunc sentence imposed at resentencing made it clear the sentence was being served from the original sentencing date); see also Martin v. State, 31 So.3d 917 (Fla. 3d DCA 2010) (Cope, J., concurring).

Accordingly, we affirm the denial of appellant’s 3.800(a) motion without prejudice for him to pursue his administrative remedies with DOC if DOC did not properly calculate his time served.

Affirmed.

DAMOORGIAN, C.J., STEVENSON and CIKLIN, JJ., concur.


text:
    Robert PEREIRA, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1491.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.
    Robert Pereira, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

GROSS, TAYLOR and LEVINE, JJ., concur.


author: FORST, J.

text:
    Leslie HARRIS, Appellant, v. ABERDEEN GOLF & COUNTRY CLUB, INC., Appellee.
    No. 4D12-3702.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.

      Leslie K. Harris, Boynton Beach, pro se.
    Robert Rivas of Sachs Sax Caplan, P.I., Tallahassee, for appellee.
   FORST, J.

The Appellant, Leslie Harris, appeals the order entering final judgment for Aberdeen Golf & Country Club (“Aberdeen Club”), after Aberdeen Club’s motion for summary judgment was granted. The order reflects that final judgment was entered for Aberdeen Club based solely on the entry of final orders as to the co-defendants, Aberdeen Property Owners Association (“Aberdeen POA”) and Bristol Lakes Homeowners Association (“Bristol Lakes HOA”). As to Aberdeen POA, the court entered a final summary judgment based on the statute of limitations. As to Bristol Lakes HOA, the court entered an order dismissing the count related to Bristol Lakes HOA, based on Harris’s failure to comply with a condition precedent to suing a homeowners association.

On appeal, Harris argues the trial court lacked jurisdiction to enter a final judgment in favor of Aberdeen Club when appeals of final orders related to the other defendants were pending. We find no merit to this argument. However, we do agree with Harris that if the final summary judgment entered in favor of Aberdeen POA is reversed, the final judgment in the instant case should also be reversed, since Aberdeen Club’s and Aberdeen POA’s motions for summary judgment were both based on the statute of limitations. Because we reversed the final summary judgment entered in favor of Aberdeen POA, see Harris v. Aberdeen Prop. Owners Ass’n, No. 4D12-1435 (Fla. 4th DCA Aug. 21, 2013), we reverse the final judgment in the instant case. We note that although the trial court also based its final judgment for Aberdeen Club on the final order entered in favor of Bristol Lakes HOA, that order really had no impact on the suit against Aberdeen Club, as the order was based on an issue not related to the counts against Aberdeen Club and Aberdeen POA.

Reversed and remanded.

TAYLOR and LEVINE, JJ., concur.


text:
    Daren B. RAZZ, III, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3540.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

GROSS, MAY and CIKLIN, JJ., concur.


text:
    Roderick NORFUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1920.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.
    Roderick Norfus, Moore Haven, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Comer v. State, 909 So.2d 460, 461 (Fla. 4th DCA 2005).

DAMOORGIAN, C.J., WARNER and CIKLIN, JJ., concur.


text:
    Johnnie E. THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3390.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Johnnie E. Thompson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


author: MARSTILLER, J.

text:
    Vickey Tyler-FLEMING, Appellant, v. SWISHER INTERNATIONAL, INC./BROADSPIRE KEMPER INSURANCE GROUP and Fidelity Guarantee Ins. Co., Appellees.
    No. 1D12-5765.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.

      Jonathan B. Israel of Harris, Guidi, Ros-ner, Dunlap & Rudolph, P.A., Jacksonville, for Appellant.
    Benford L. Samuels and Kansas R. Goo-den of Boyd & Jenerette, P.A., Jacksonville, for Appellees.
   MARSTILLER, J.

Vickey Tyler-Fleming (“Claimant”) appeals the denial of her November 2010 amended petition for workers’ compensation benefits (“PFB”) seeking medical treatment for a left knee injury she sustained in a May 2000 workplace accident. She argues the Judge of Compensation Claims (“JCC”) should have applied the doctrine of judicial estoppel to prevent the Employer/Carrier (“E/C”) from denying compensability. Finding judicial estoppel inapplicable to this case, we affirm the JCC’s order.

Claimant suffered a compensable left knee injury in May 2000, when she tripped down some stairs at work. The E/C provided medical treatment, which continued until March 2002, when Claimant’s authorized treating physician placed her at maximum medical improvement, or “MMI,” with a 2 percent permanent impairment rating and no permanent work restrictions.

In September 2005, Claimant suffered another workplace accident, and filed a PFB in September 2006 seeking medical treatment for her left knee and other injuries. The E/C responded that the 2005 accident did not result in injury to Claimant’s knee, and was not the major contributing cause (“MCC”) of Claimant’s need for treatment. Notably, Claimant’s authorized treating physician opined that the need for treatment was not due to the 2005 accident. Claimant obtained an independent medical examiner who opined, to the contrary, that the 2005 accident had permanently aggravated the pre-existing knee injury. In light of the conflicting medical opinions, the JCC appointed an expert medical advisor (“EMA”), who concluded, “the progression of the torn meniscus from a grade 2 to a grade 3, requiring surgery in November 2007, was the injury sustained in the May 31, 2000, date of accident coupled with ... the repetitive activities which [Claimant] performs at work.” Finding no basis on which to reject the EMA’s opinion, the JCC found Claimant’s knee condition “causally related” to the injury sustained in 2000 and repetitive work activities, and rendered an order on March 5, 2010, denying compensability and treatment.

On October 13, 2010, Claimant filed a PFB, again seeking medical treatment for a meniscus tear in her left knee, but this time asserting the May 2000 accident as the cause. The E/C denied that the 2000 accident was the major contributing cause of Claimant’s current need for surgery and treatment. Claimant supported her claim, not with new medical evidence, but with the EMA’s opinion report from the previous proceeding on her unsuccessful September 2005 PFB. In addition, she argued the E/C should be judicially estopped from asserting her need for treatment was not due to the 2000 accident, because they had taken the opposite position against her 2006 PFB. The JCC declined to apply judicial estoppel, finding primarily that the E/C had not taken clearly inconsistent positions in defending against the 2006 and 2010 PFBs.

“Florida recognizes the equitable doctrine of judicial estoppel, which prevents litigants from taking totally inconsistent positions in separate judicial proceedings to the prejudice of the adverse party.” Olmsted v. Emmanuel, 783 So.2d 1122, 1126 (Fla. 1st DCA 2001); see Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001). For the doctrine to apply, the party sought to be estopped must have “successfully maintained a position in one proceeding while taking an inconsistent position in a later proceeding, and [] the other party was misled and changed its position in such a way that it would be unjust to allow the [party] to take the inconsistent position.” Crawford Residence, LLC v. Banco Popular N. Am., 88 So.3d 1017, 1020 (Fla. 2d DCA 2012). A party has successfully maintained a claim or position if, in the prior proceeding, the court “adopt[ed] the claim or position either as a preliminary matter or as part of a final disposition.” Brown & Brown, Inc. v. Sch. Bd. of Hamilton County, 97 So.3d 918, 920 (Fla. 5th DCA 2012). Furthermore, the positions taken or claims made must be “inherently inconsistent.” See S. Florida Coastal Elec., Inc. v. Treasures on the Bay II Condo. Ass’n, Inc., 89 So.3d 264, 269 (Fla. 2d DCA 2012) (citing Smith v. Avatar, 714 So.2d 1103, 1107 (Fla. 5th DCA 1998)). “Judicial estoppel is an equitable doctrine which may be invoked by a court at its discretion.” 31 C.J.S. Estoppel and Waiver § 187 (2013).

Here, we find no abuse of discretion by the JCC in rejecting Claimant’s call for judicial estoppel. The defenses the E/C raised against Claimant’s 2006 and 2010 PFBs are not inconsistent. As the JCC reasoned, the issue to be resolved in each case was whether the designated accident was the MCC of Claimant’s need for medical treatment, and in each instance, the E/C simply asserted that the relevant accident was not the MCC of Claimant’s knee condition. Claimant seems to rely on the JCC’s finding, in the order denying the 2006 PFB, that Claimant’s knee condition was “causally related” to the injury she sustained in the 2000 accident. However, the JCC’s finding emanated not from a claim made by the E/C, but rather, from the EMA’s medical opinion. Thus, the E/C did not successfully maintain a claim or defense in the prior proceeding inconsistent with that asserted in the current proceeding, such that judicial estoppel should apply. See Brown & Brown, 97 So.2d at 920. As Claimant asserts no other error by the JCC, we affirm the order denying her 2010 PFB.

AFFIRMED.

PADOVANO and MAKAR, JJ., concur.


text:
    Homer Rae McKEE, Husband, Appellant, v. Peggy Sue MICK, f/k/a Peggy Sue McKee, Wife, Appellee.
    No. 1D12-4954.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.

      Brian P. North and Alyssa L. Hartle, Gainesville, for Appellant.
    Peggy Sue Mick, pro se, Appellee.
   PER CURIAM.

This is an appeal from an amended final judgment of dissolution. Of several errors asserted by the former husband, we agree with two: the trial court incorrectly classified a jointly titled burial plot as the former wife’s nonmarital property, and incorrectly classified a 1999 Cadillac as marital property.

The former wife received two burial plots during the marriage as gifts from her aunt, and added the former husband to the deed for one of the plots. She testified she did so believing the parties’ marriage would last. The trial court incorrectly deemed the burial plot nonmarital property belonging to the former wife. For purposes of equitable distribution, marital assets include “[ijnterspousal gifts during the marriage.” § 61.075(6)(a)l.c., Fla. Stat. (2011). The former wife’s testimony establishes the burial plot as an interspousal gift. Furthermore, “[a]ll real property held by the parties as tenants by the en-tireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.” § 61.075(6)(a)2., Fla. Stat. (2011). See Beal Bank, SSB v. Almand & Assoc., 780 So.2d 45, 54 (Fla.2001) (“In the case of ownership of real property by husband and wife, the ownership in the name of both spouses vests title in them as tenants by the entireties.”). The party claiming otherwise has the burden to prove the property is a nonmarital asset. Id. The former wife put on no evidence in this regard, except to say she now does not want the former husband to have the plot. Cf. Marsh v. Marsh, 419 So.2d 629, 630 (Fla.1982) (holding trial court correctly classified home that belonged to former wife before the marriage as marital property, where former wife added former husband to deed, but testified she only did so to provide a home for her children from prior marriage should anything happen to her).

As to the Cadillac, the former wife listed it as a marital asset in an exhibit she entered into evidence, but gave no testimony about how the parties acquired the car. The former husband, on the other hand, testified the car had belonged to his mother, and that she transferred title to him before going to a nursing home. “Assets acquired separately by either party by noninterspousal gift” are nonmarital assets. § 61.075(6)(b)2., Fla. Stat. (2011). Absent evidence to the contrary, the trial court erred by classifying the Cadillac as marital property and distributing it to the former wife.

We reverse and remand the amended final judgment for the trial court to correct the errors described above. On remand, the court should also review the former wife’s award of attorney’s fees in light of the revised equitable distribution scheme. See Allen v. Allen, 114 So.3d 1102 (Fla. 1st DCA 2013).

AFFIRMED, in part; REVERSED, in part; REMANDED, with directions.

VAN NORTWICK, MARSTILLER, and RAY, JJ., concur.


text:
    Bradley RANDAZZO, Appellant, v. Robin Ackerman FAYER, Appellee.
    No. 1D12-4768.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Bradley Randazzo, pro se, Appellant.
    Adam E. Miller, Pompano Beach, for Appellee.
   PER CURIAM.

Appellant, Bradley Randazzo, appeals a final order denying his “Motion to Strike and Motion for Default Judgment or Sanctions” and granting the “Motion to Dismiss — Witness Immunity” filed by Appel-lee, Robin Ackerman Fayer. Appellant raises two issues on appeal, only one of which merits discussion. He contends that the trial court erroneously granted Appel-lee’s motion to dismiss. We agree and therefore reverse as to the dismissal.

Appellant filed a “Civil Complaint For Slander False Accusation And Liable Or Defamation of Character” against Appel-lee, alleging in part that Appellee made a phone call to his prison classification officer and falsely and maliciously reported that Appellant was writing letters to her in an attempt to extort money. Appellant further alleged in his complaint that Ap-pellee was a material witness against him during his murder prosecution more than twenty years ago, at which proceeding she was granted immunity. Appellee filed a “Motion to Dismiss — Witness Immunity,” arguing that the suit was barred by the privilege of absolute immunity. Appellant filed a “Motion to Strike and Motion for Default Judgment or Sanctions.” The trial court denied Appellant’s motion to strike and motion for default judgment or sanctions and granted Appellee’s motion to dismiss. This appeal followed.

We review an order granting a motion to dismiss de novo. Fullerton v. Fla. Med. Ass’n, Inc., 938 So.2d 587, 590 (Fla. 1st DCA 2006). Upon examining Appellant’s complaint and taking all well-pled facts as true, we find that it was improper to raise the affirmative defense of absolute immunity in a motion to dismiss because its applicability is not “clearly apparent on the face of the complaint.” See Fariello v. Gavin, 873 So.2d 1243, 1245 (Fla. 5th DCA 2004) (explaining that immunity is “a fact intensive issue” that may be raised in a motion to dismiss only in “exceptional cases in which the facts giving application to the defense are clearly apparent on the face of the complaint.”); Kirvin v. Clark, 396 So.2d 1203, 1204 (Fla. 1st DCA 1981) (concluding that even if absolute privilege applied, it was improper to raise the defense in a motion to dismiss because its applicability “[was] not disclosed by the allegations”). It is not clear from the four corners of Appellant’s complaint that the defense of absolute immunity applies to the allegedly defamatory statement Appel-lee made to Appellant’s classification officer regarding the letters she had received. Nor can we determine from the complaint that Appellee’s allegedly defamatory statement was made in the course of an ongoing judicial or quasi-judicial proceeding and was related to the subject of inquiry. See DelMonico v. Traynor, 116 So.3d 1205 (Fla.2013); Fridovich v. Fridovich, 598 So.2d 65, 66 (Fla.1992).

Accordingly, we affirm the denial of the “Motion to Strike and Motion for Default Judgment or Sanctions” and reverse as to the granting of the “Motion to Dismiss— Witness Immunity.”

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

LEWIS, C.J., BENTON and WETHERELL, JJ., concur.


author: NORTHCUTT, Judge.

text:
    KASS SHULER, P.A., Petitioner, v. Carol BARCHARD, Alex D. Weisberg, Esq., and Weisberg & Meyers, LLC, Respondents.
    No. 2D13-59.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2013.

      Mark J. Bernet, Melissa A. Giasi, Ronald H. Trybus, and Erin M. Bradford of Kass Shuler, P.A., Tampa, for Petitioner.
    Alex D. Weisberg of Weisberg & Meyers, LLC, Cooper City, for Respondents.
   NORTHCUTT, Judge.

Kass Shuler, P.A., seeks certiorari review of an order by the circuit court, sitting in its appellate capacity, reversing a county court’s award of attorney’s fees to Kass Shuler. We grant the petition in part and deny it in part.

Kass Shuler filed a mortgage foreclosure suit on behalf of a client. Carol Barchard, who was not the mortgagor, was named as a defendant for the purpose of foreclosing any interest she might claim in the foreclosed property. Barchard engaged attorney Alex Weisberg, who sent a demand letter to Kass Shuler asserting that it had violated Florida and federal law by naming Barchard in the foreclosure action. When Kass Shuler rejected the demand, Weis-berg sued the firm in county court, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, and the Florida Consumer Collection Practices Act, section 559.72, Florida Statutes (2009). The court later dismissed the suit with prejudice.

Thereafter, the county court held two evidentiary hearings on Kass Shuler’s motion for attorney’s fees under the two debt collection practices statutes and under sections 57.041 and 57.105(1), Florida Statutes (2009). Following the first evidentiary hearing, the court found that Kass Shuler was entitled to recover its attorney’s fees. The order stated in part:

The evidence presented at the March 9, 2011, hearing proved that [Barchard] and [her] Attorneys knew or should have known that the claims asserted against [Kass Shuler], when initially presented to the court and at any time before trial, were not supported by the material facts necessary to establish the claims, and, that the claims would not be supported by the application of then-existing law to those material facts. The evidence presented at the March 9, 2011 hearing also established that the claims asserted against [Kass Shuler] failed to raise any justiciable issue of law or fact and were brought by [Barchard] and [her] Attorneys in bad faith and for the purpose of harassment.

After the second evidentiary hearing, the county court entered an order taxing fees and costs against Barchard and her attorneys under the various statutes for filing a case that they “knew or should have known raised no justiciable issue of law or fact, and that was filed in bad faith and solely for the purpose of harassment, and that caused a willful and malicious injury to Kass Shuler.” The court further found that 160 hours was reasonably expended, that $350 per hour was a reasonable hourly rate, and that $56,000 was a reasonable fee to be awarded, jointly and severally, against Barchard and her attorneys. The court also awarded costs, which are not at issue here. Finally, the court awarded $5000 to Kass Shuler to be paid by Barchard alone as a sanction for filing grievances with The Florida Bar against four Kass Shuler attorneys, two of whom were apparently unconnected with this litigation. The court found that Barchard filed the grievances as a litigation tactic after her suit was dismissed and that Barchard’s conduct was “unjustified, vicious, willful, and malicious.”

Barchard and her attorneys appealed the fee award to the circuit court, sitting in its appellate capacity. The evidentiary hearings before the county court were never transcribed, and thus the record on appeal did not contain transcripts. Despite Kass Shuler’s argument concerning the inadequacy of the record, the circuit court reversed the fee award. In its opinion, the court observed that it was called upon to review the fee award for an abuse of discretion. Analyzing the federal statute, 15 U.S.C. § 1692k(a)(3), the court noted that fees could be awarded against a plaintiff only for an action brought in bad faith and for harassment. It then stated: “While the trial court made the general finding that it was brought in bad faith for the purpose of harassment, we do not know the basis for the trial court’s determination in this regard and there is no evidence in the record before us to require such a finding.” Finally, the court reversed the sanction against Barchard for filing the Bar grievances, holding that “the trial court lacked authority” to impose this sanction. The court then denied Kass Shuler’s motion for attorney’s fees and costs on appeal and awarded costs to Barchard and her attorneys.

Kass Shuler seeks second-tier certiorari review in this court, and we must determine “whether the circuit court afforded procedural due process and whether it applied the correct law.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000) (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995), which noted that “ ‘applied the correct law1 is synonymous with ‘observing the essential requirements of law’ ”). Applying the incorrect standard of review is a departure from the essential requirements of law. Duke v. State, 82 So.3d 1155, 1158-59 (Fla. 2d DCA 2012).

Here, the circuit court’s holding that there was no evidence to support the county court’s finding of Barchard’s bad faith violated one of the most basic tenets of appellate review, i.e., that it is the appellant’s burden to demonstrate error. “It is well established that the party seeking appellate review has the burden of providing the court with an adequate record of the proceedings in the lower tribunal. An appellate court cannot reverse a decision in the absence of a sufficient record.” Philip J. Padovano, Florida Appellate Practice § 12.3 (West’s Fla. Prac. Series 2011-12 ed.) (emphasis added) (footnote omitted). Applying this well-established principle, the Florida Supreme Court quashed a district court opinion that had reversed a final order in the absence of a trial transcript. In the seminal case of Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979), the supreme court explained:

The trial court’s imposition of a constructive trust could well be supported by evidence adduced at trial but not stated in the judge’s order or otherwise apparent in the incomplete record on appeal. The question raised by Barnett Bank clearly involves underlying issues of fact. When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.

In the instant case, Barchard provided neither transcripts of the hearings on attorney’s fees nor a settled and approved statement of the evidence under Florida Rule of Appellate Procedure 9.200(b)(4). Under clearly established law, the circuit court was obliged to affirm the county court’s judgment (but only in part, as we will explain) because the record brought forward by Barchard was inadequate to demonstrate reversible error. Accordingly, we grant the petition in part and quash that portion of the circuit court’s order that reversed the award of attorney’s fees to Kass Shuler. We also quash the circuit court’s denial of Kass Shuler’s motion for appellate fees and its award of costs to Barchard.

We deny the petition insofar as it challenged the circuit court’s reversal of the $5000 sanction imposed against Barch-ard for filing Bar grievances. An individual who files a Bar complaint against an attorney and makes no public announcement of the complaint enjoys absolute immunity. Tobkin v. Jarboe, 710 So.2d 975, 977 (Fla.1998). The circuit court afforded procedural due process and applied the correct law in ruling that the trial court lacked authority to impose a monetary sanction based on Barchard’s filing of Bar grievances.

Petition granted in part; denied in part.

ALTENBERND and BLACK, JJ., Concur.


text:
    Jesus Ventura PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5008.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2013.

      Christopher H. Brown of Brown, Suarez & Rios, P.A., Fort Myers, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

A jury convicted Jesus Perez of arson of a dwelling, § 806.01(l)(a), Fla. Stat. (2009), and burning to defraud an insurer, § 817.233, Fla. Stat. (2009). Perez had moved for judgment of acquittal on both charges. We agree that the evidence in this case was insufficient to prove that Perez set the fire. We reverse both his convictions and remand for the circuit court to discharge him. We need not address Perez’s other argument that the trial judge erred in admitting hearsay evidence.

Perez’s house caught fire on a June afternoon in 2009. A neighbor who was outside working on his truck that day heard Perez call out asking him to telephone 911. The neighbor observed smoke billowing from Perez’s home and saw Perez entering the residence through the front door. The fire department arrived and put out the blaze.

A local fire investigator saw no signs of forced entry into the house. He documented damage from smoke and soot in various locations, but he noted that the kitchen sustained the most damage. He believed the fire had started there, near but not on the rear left burner of the stove.

Eduardo Blanco, a criminal investigator with the state fire marshal’s office, arrived later in the afternoon and interviewed Perez. Perez told Blanco he had fried eggs and potatoes around 10:30 that morning. He then left to visit his cousin. They watched a movie and then Perez returned home. Perez said he walked through his front door and discovered the house was filled with smoke. He went out through the back sliding glass doors, grabbed a garden hose and attempted to extinguish the flames. When that effort failed, he asked his neighbor to call 911.

Blanco determined that the heat source of the fire was the burner on the stove. But he posited that a normal kitchen fire originating from a pan left on the stove would have burned itself out and would not have caused the extensive damage seen in Perez’s house. Blanco gathered debris samples from the scene and sent them to a laboratory for analysis. One sample tested positive for gasoline. But a control sample included in the same test was also found to contain gasoline, suggesting that both samples became contaminated in the course of the testing itself. Indeed, Perez’s expert testified that the entire analysis had been tainted.

Although the evidence was far from certain on the issue, for purposes of appeal Perez does not challenge the State’s proof that the fire was caused by arson. His point is that the State offered no evidence, direct or circumstantial, that Perez was the arsonist. The only testimony it offered concerning Perez’s whereabouts around the time of the fire came from the neighbor who called 911. He testified that he was not paying attention to Perez’s comings or goings because he was busy working on his truck. Thus, he did not know whether Perez left his house that day. He did not remember seeing Perez’s van, and he could not remember whether the van was in the driveway or not.

No one took samples from Perez’s clothes or person on the day of the fire to determine whether he had been in contact with gasoline or some other accelerant. No proof was offered that the house was locked, which might have prevented someone other than Perez from entering the residence. The local fire investigator testified that when he suspects arson he checks to see if valuables such as pictures,

TVs, stereos, or other expensive items have been removed from the burned building. He conceded that all these items were present in Perez’s home and that it looked “lived in.” Cf. State v. Bonebright, 742 So.2d 290, 292 (Fla. 1st DCA 1998) (discussing circumstantial evidence that pointed to the defendant as the arsonist and noting that he took his possessions from the apartment before the fire began).

We apply the de novo standard when reviewing the denial of a motion for judgment of acquittal. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002). As mentioned, the State presented no direct evidence of Perez’s guilt. And as we stated in Moberly v. State, 562 So.2d 773, 775 (Fla. 2d DCA 1990), if the circumstantial evidence furnishes only a suspicion of guilt, it is insufficient to prove arson. The evidence must be of a conclusive nature leading to a reasonable certainty that the defendant, not anyone else, committed the arson. Id.; see also Cox v. State, 555 So.2d 352, 353 (Fla.1989). As in Moberly, the circumstantial evidence here was woefully insufficient to prove that Perez started the fire. The sum and substance of the State’s case was simply that the fire was in Perez’s home. His convictions for both arson and burning to defraud an insurer cannot stand.

Reversed and remanded with directions to discharge Perez.

WALLACE and MORRIS, JJ., Concur.


text:
    Brian Douglas DEVINE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-367.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2013.
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Brian Devine appeals his burglary conviction and argues that the charge should have been dismissed pursuant to the Interstate Agreement on Detainers (IAD), chapter 941, part II, Florida Statutes (2009). We agree and reverse.

In 2004, the state attorney in Collier County charged Devine with burglary of an unoccupied dwelling. Not long after the charge was filed, Devine failed to appear in court. He resurfaced in 2009 while serving a prison sentence in Ohio.

In May 2009, Devine attempted to invoke his rights under the IAD by filing a pro se notice that he was available for disposition of his Florida charge. The sworn notice referenced Devine’s Florida case number and informed the Florida prosecutor of Devine’s place of incarceration in Ohio. In December of that year, Devine filed a pro se motion to dismiss the Florida charge. The motion alleged that Devine was serving a three-year sentence in Ohio, that he had filed the notice of availability in May, and that no action had been taken since the filing. In February 2010, the circuit court dismissed the motion without prejudice. The order stated that Devine’s notice was not sufficient because it lacked a certificate from the corrections officials in Ohio and it had not been sent by registered or certified mail, as required by the IAD.

By September 2010, these shortcomings were corrected. The record shows that Florida lodged a detainer against Devine in Ohio on August 30, 2010, and that De-vine and the Ohio prison officials executed IAD forms I, II, and III on August 31. Form I was entitled “Notice of Untried Indictment, Information or Complaint and Have [sic] Right to Request Disposition.” In this form, an Ohio prison official formally notified Devine that the detainer had been lodged against him by the Collier County authorities, that he had a right to request a final disposition of the Florida charge, that such a request would be a waiver of extradition and consent to return, and that he had a right to oppose a request for temporary custody. Form II was entitled “Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations or Complaints.” This form, executed by Devine, was directed to the State Attorney for the Twentieth Judicial Circuit of Florida, and it requested a final disposition of the Florida burglary charge. Form III was entitled “Certificate of Inmate Status.” This form, executed by an Ohio prison official, set forth information required by the IAD, including: Devine’s Ohio commitment offenses, his term of commitment, the time already served, the time remaining to be served, and the amount of good time served. The form also set forth the date of Devine’s parole eligibility, and it included an unmarked space for decisions of the parole agency related to him. The record contains September 7, 2010, certified mail receipts showing delivery on that date of mail sent from the Ohio prison to the state attorney’s office and to “Court Administration” at the address of the Collier County Courthouse.

In March 2011, Devine filed another pro se motion to dismiss with a certificate of service to the state attorney’s office. This motion alleged that Devine was serving a three-year sentence in Ohio. It further alleged that an “Interstate Agreement on Detainers was filed in this court on August 30, 2010.” Although the circuit court had not reached the merits of Devine’s first motion when dismissing it without prejudice, in April 2011 the court summarily denied this second motion as successive.

On November 7, 2011, Devine was tried and convicted as charged. Post-trial, defense counsel filed a motion to reconsider the April 2011 order denying the second motion to dismiss as successive. The motion for reconsideration relied on the following attachments: the Florida detainer placed on Devine on August 30, 2010; the IAD forms executed by Devine and Ohio prison officials on August 31; the certified mail receipts from the Ohio prison to the state attorney’s office and Court Administration in Collier County reflecting delivery on September 7, 2010; and Devine’s March 2011 pro se motion to dismiss along with the order summarily denying it as successive.

Without objection, the court entertained the motion for reconsideration at Devine’s sentencing hearing. The prosecutor did not dispute that Devine’s IAD forms were delivered to the court and the state attorney’s office in September 2010 or that they were sufficient to invoke Devine’s rights under the IAD. Instead, the prosecutor argued simply that the motion for reconsideration was merely a request to the court to “please change your mind.” Defense counsel disputed that characterization, pointing out that the motion for reconsideration was based on counsel’s receipt of “some information from the Ohio correctional department showing receipts of when the defendant’s motion and when the detainers were submitted,” which had been among the court’s concerns when it dismissed the first motion without prejudice. Without stating its reasons, the court denied the motion to reconsider. It then imposed a prison sentence for the burglary conviction.

On appeal, Devine argues that the trial court erred in denying his motion to dismiss. Chapter 941, part II, contains the Interstate Agreement on Detainers. Section 941.45, article III, governs prisoners’ requests for final dispositions of charges pending in other states. Section (a) provides in pertinent part as follows:

(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a de-tainer has been lodged against the prisoner, he or she shall be brought to trial within 180 days after the prisoner shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his or her imprisonment and the prisoner’s request for a final disposition to be made of the indictment, information, or complaint; provided that, for good cause shown in open court, the prisoner or the prisoner’s counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

§ 941.45, art. 111(a) (emphasis added).

From this section, we can glean the following. Devine’s first attempt to invoke the IAD was ineffective. It was premature because a detainer had not been lodged against him. See O’Connell v. State, 400 So.2d 136, 137-38 (Fla. 5th DCA 1981) (“[I]n order for the interstate agreement and its speedy trial provisions to apply, a detainer must have been lodged against [the defendant] with the [out-of-state] authorities.”). In addition, as the court noted in its order dismissing the first motion without prejudice, Devine’s “notice of availability” did not suffice as a request for final disposition in the absence of a certificate by the Ohio prison authorities setting forth the required information about Devine’s status. Devine’s pro se notice also failed to comply with article 111(b), which required the written notice and request for final disposition to be promptly forwarded by the Ohio officials “to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.” But see State v. Roberts, 427 So.2d 787, 789 (Fla. 2d DCA 1988) (holding that handwritten forms sent directly by defendant, not by out-of-state prison authorities, substantially complied with IAD).

Thus, the trial court properly dismissed Devine’s first motion to dismiss without prejudice. But all of the foregoing deficiencies were cured when Florida lodged a detainer against Devine and, in September 2010, the Ohio authorities sent the necessary documents to the state attorney’s office and the court. The State has not contended that the documents were in any way deficient; manifestly, they were not.

As required by article 111(a), Devine should have been brought to trial “within 180 days after the prisoner shall have caused to be delivered” the necessary documents to the prosecutor and the court. Measuring from September 7, 2010, the delivery date reflected on the certified mail receipts, Devine should have been brought to trial by March 7, 2011. See Monroe v. State, 978 So.2d 177, 180 (Fla. 2d DCA 2007) (“The period required by the IADA thus began on ... the date that Florida officials received [the defendant’s] request.”). According to the State’s motion to revoke bond filed in the proceedings below, Devine remained in prison in Ohio until August 18, 2011. See State v. Butler, 496 So.2d 916 (Fla. 2d DCA 1986) (noting that the IAD is no longer applicable once a prisoner has been released from incarceration). Therefore, his motion to dismiss filed on March 16, 2011, was well taken.

In short, Devine established that he made a legally sufficient request for final disposition of the pending charge and that it was delivered to the court and prosecutors on September 7, 2010. “The prisoner has the initial burden of making a written request for final disposition, and upon so doing the state has the burden to bring him to trial within 180 days.” State v. Edwards, 509 So.2d 1161, 1163 (Fla. 5th DCA 1987). Having lodged a detainer but failing thereafter to act in the face of the IAD request, the State failed to timely bring Devine to trial. For this reason, Devine was entitled to a dismissal of the Florida burglary charge. Accordingly, we reverse Devine’s conviction and remand for his discharge.

Reversed and remanded for discharge.

SILBERMAN and CRENSHAW, JJ., Concur.

      . Neither has the State complained that the Ohio prison officials addressed the court’s copy to "Court Administration” rather than to the clerk of court, albeit to the same street address. (The Ohio officials, who were not parties to the Florida criminal case, understandably may have doubted their authorization to make a filing in the court file associated with the case.) Indeed, the IAD provides that its provisions are to be liberally construed, § 941.45, art. IX, and the courts have recognized that substantial compliance with the IAD procedures is sufficient to invoke a prisoner’s rights thereunder. See, e.g., Roberts, 427 So.2d at 789. The State could not credibly contend that its ability to comply with the IAD was in any way hampered by the manner in which the court’s copy of the documents was addressed, and we have no difficulty concluding that the mailing substantially complied with the requirement that the IAD documents be delivered to the "court.”