author: DAVIS, Chief Judge.

text:
    Andres HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2786.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2014.

      Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Andres Hernandez, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Chief Judge.

Andres Hernandez challenges his convictions and sentences for burglary of an unoccupied dwelling, petit theft, and obtaining money from a pawnshop by fraud. Hernandez entered open no contest pleas to the charges, and sentencing was put off for sixty days in order to allow Hernandez to provide substantial assistance to the State in the form of information about his codefendant and other crimes. At sentencing, the trial court found that Hernandez had not provided substantial assistance and sentenced him to fourteen years on the burglary, five years on the fraud, and time served on the theft. Because the totality of the instant circumstances create an unrebutted presumption of vindictive sentencing, we reverse.

After entering no contest pleas without reserving the right to appeal any disposi-tive issues, Hernandez is limited to raising the following issues on appeal: (1) lack of subject matter jurisdiction; (2) violation of plea agreement, if preserved by a motion to withdraw plea; (3) voluntariness of plea, if preserved by motion to withdraw plea; or (4) a sentencing error, if preserved. See Fla. R. App. P. 9.140(b)(2)(A)(ii).

He raises a sentencing error, arguing that the fourteen-year sentence imposed on the burglary count is the result of vindictive sentencing. There is a presumption of vindictiveness where, when considering the totality of the circumstances, there is a “reasonable likelihood” that “[j]udicial participation in plea negotiations followed by a harsher sentence” is the result of retaliation for the defendant’s exercising a certain right. Mendez v. State, 28 So.3d 948, 950 (Fla. 2d DCA 2010) (quoting Wilson v. State, 845 So.2d 142,156 (Fla.2003)).

[F]actors that should be considered include but are not limited to[](l) whether the trial judge initiated the plea discussions with the defendant ...; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea[ ] or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Id. (quoting Wilson, 845 So.2d at 156).

Here, Hernandez bases his claim of vindictive sentencing on the following exchange at the plea hearing:

[PROSECUTOR]: .... [T]he defense approached me about the idea of hoping that the mitigation [of substantial assistance] reduces it to a five-year recommendation from the State. So that was the number that has been thrown out by them. And again, we made no promises, but Fm keeping that in mind based on—
THE COURT: Okay. So the court right now, you are offered a guaranteed plea of five years in state prison; is that—
[PROSECUTOR]: Not from the State, no. The State’s offer as it sits today is 15, but the Defense countered with substantial assistance, hoping to get five.
THE COURT: So that’s your goal is in hopes that, if the information is of value, that the sentence would be somewhere around five years in prison?
[DEFENSE COUNSEL]: No, Judge. Our intent is to go bottom of the guidelines or lower if the help is good.
THE COURT: Okay.
[HERNANDEZ]: My original plea, I mean the first plea he gave me was five years plea [sic]. I didn’t take it.
THE COURT: So let me ask you this question. Do you want to — do you want to have the sentencing issue resolved today and accept the five years that the State had previously offered? Because if you want to know what is going to happen, then I will take your plea and I will sentence you to the five years that the State had previously offered you. If you want to — and that’s without help, and then if you do provide assistance, then you can come back in and ask to have it mitigated within 60 days. But that’s the only way that I can tell you that you can be assured of what is going to transpire at sentencing. If you want to accept the State’s original offer, I will honor it.

Hernandez opted to enter an open plea and wait thirty days for sentencing, during which period he planned to provide substantial assistance to law enforcement in the hope of getting a bottom of the guidelines sentence (which was 28.575 months). When he returned for sentencing, the trial court determined that he had not provided substantial assistance to law enforcement and imposed the fourteen-year term on the burglary and the concurrent five years on the fraud charge.

Applying the factors discussed in Mendez, the trial court clearly initiated plea negotiations at the plea hearing by offering Hernandez the State’s original five-year deal if he would agree to being sentenced that day. Furthermore, Hernandez’s fourteen-year sentence is undeniably harsher than the five-year offer, and there is nothing in the record to explain the increase in the sentence. At sentencing, the trial court pointed to the fact that Hernandez failed to provide substantial assistance to law enforcement, but at the time the court made the five-year offer, Hernandez had provided no assistance. If the court considered five years to be an appropriate sentence at a time when Hernandez had made no effort to provide assistance to law enforcement, his subsequent failure to do so cannot serve as a reason to increase the sentence to fourteen years. The court also mentioned Hernandez’s criminal history, but that too was a condition the trial court was aware of at the time it made the five-year offer.

We do note that at the sentencing hearing, the investigating detective was allowed to testify that Hernandez was “going to be charged with eight counts of residential burglary and another nine counts of dealing in stolen property once this case is resolved.” Over defense objection, the detective was allowed to list the dates, locations, and items taken for eight other burglaries Hernandez was suspected of committing but for which no charges had yet been filed against him. These facts, however, could not serve as a change in circumstances by which to increase Hernandez’s sentence from the five-year offer because uncharged crimes cannot be considered when determining a sentence. See Martinez v. State, 123 So.3d 701, 703 (Fla. 1st DCA 2013) (“A sentence within statutory limits ... is generally unassailable on appeal. But a sentence cannot stand, at least on direct appeal, if the sentencing judge considered constitutionally impermissible factors in arriving at the sentence. Relying on pending or dismissed charges, in effect deeming such charges established without proof or a conviction, violates a defendant’s right to due process.” (citations omitted)).

Based on the totality of the facts of this case, there is an unrebutted presumption that the harsher sentence imposed was the product of vindictive sentencing. Accordingly, we reverse and remand for resen-tencing before a different judge.

Reversed and remanded.

NORTHCUTT and MORRIS, JJ., Concur.

      . "The term vindictive — when used in the context of a claim of vindictive sentence — 'is a term of art which expresses the legal effect of a given course of action, viewed objectively, and does not imply any personal animosity between the court and the defendant.’ ” Mendez v. State, 28 So.3d 948, 950-51 (Fla. 2d DCA 2010) (quoting Harris v. State, 903 So.2d 363, 366 (Fla. 2d DCA 2005)).

      . We note that although Hernandez has not filed a postconviction motion to correct this sentencing error, there is no preservation issue to prevent him from raising it now. Vindictive sentencing has been recognized as an error in the sentencing process that need not be preserved by a Florida Rule of Criminal Procedure 3.800(b) motion. See Rosado v. State, 129 So.3d 1104, 1108 (Fla. 5th DCA 2013) ("[A] claim of vindictive sentencing is 'an error that occurs during the sentencing process, not an error in the sentencing order,' Jackson [v. State], 983 So.2d [562, 574 (Fla.2008) ], and is therefore not a sentencing error within the meaning of rule 3.800(b).”). Furthermore, this court has held that "imposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal.” Mendez, 28 So.3d at 950.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Marian GANN, Appellant, v. BAC HOME LOANS SERVICING LP, n/k/a Bank of America, N.A., Appellee.
    No. 2D12-6271.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2014.
    Joseph C. LoTempio of The Dellutri Law Group, P.A., Fort Myers, for Appellant.

      Joseph F. Poklemba and K. Denise Haire of Blank Rome, LLP, Boca Raton, for Appellee.
   SILBERMAN, Judge.

In her action for alleged violations of the Florida Consumer Collection Practices Act (FCCPA) against BAC Home Loans Servicing LP, n/k/a Bank of America, N.A. (the Bank), Marian Gann appeals a final order dismissing with prejudice her complaint for failure to state a cause of action. We reverse the order to the extent that it dismisses count one and remand for further proceedings.

Gann filed a two-count complaint against the Bank, alleging a violation of the FCCPA and a violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). She does not contest the dismissal of count two for alleged violations of the FDUTPA. In count one, Gann alleged that the Bank entered into a permanent loan modification in connection with her mortgage loan and that she kept all payments current pursuant to the terms of the modification. She further alleged that the Bank subsequently notified her of an alleged default although all payments were timely made pursuant to the modification. Gann further alleged that the Bank breached its duty to her and ignored the terms of the modification. She asserted that in its collections actions and communications to her the Bank violated the FCCPA, including section 559.72(9), Florida Statutes (2011). Attached to Gann’s complaint as an exhibit áre the two letters that she alleges violated the FCCPA. Both parties rely on these two letters in making their respective arguments.

In the first letter, the first section of the letter states as follows:

IMPORTANT MESSAGE ABOUT YOUR HOME LOAN

We recently received your payment in the amount of $780.76. This payment was less than the total amount needed to bring your loan up to date. However, we have applied the above referenced payment to your loan in accordance with your loan terms. The total amount due after we applied your payment is $136.97.
We previously sent you a notice informing you of the amount needed to reinstate your loan. The expiration date provided on that notice remains in effect. If the amount due is not received by the specified due date, foreclosure proceedings may begin or continue.

(Emphasis added.) The letter also states, “If you are having difficulty making your home loan payment, we can work with you to determine what options may be available to assist you.” And the letter provides that the lender has not waived its rights under the loan documents by accepting less than the amount owed.

In the second letter, the first section of the letter states as follows:

IMPORTANT MESSAGE ABOUT YOUR LOAN

Thank you for your recent payment to Bank of America, N.A., your home loan servicer.
However, your loan payment for the current month has not been received. As of September 13, 2011, the total due on your loan is $414.30, which includes the payment due on September 01, 2011.

Later in the letter it states that “it is vital that the full amount currently due is paid in order to avoid other default-related actions, which may include returning payments that are less than the total amount owed.” (Emphasis added.) The letter then states, “Please send us the total amount due, $klk-30, immediately or contact our office to discuss a mutually acceptable repayment agreement.” (Emphasis added.)

The Bank filed a motion to dismiss the complaint and, with respect to the FCCPA claim, argued that the enforcement of a security interest such as a mortgage is not considered the collection of a consumer debt under the Federal Debt Collection Practices Act (the Federal Act). The Bank further argued that when applying the FCCPA due consideration and weight should be given to the interpretation of federal law. The Bank contended that Gann’s complaint demonstrated that the Bank was seeking to enforce a security interest and that the Bank’s conduct does not fall within the scope of the FCCPA.

The only issue before the trial court on the motion to dismiss was whether the correspondence from the Bank could be construed as an attempt to collect a consumer debt. After a hearing, the trial court entered an order granting the Bank’s motion to dismiss with prejudice. The order states, “Because the Letters did not contain language which could be construed as an attempt to collect on the underlying debt, [the Bank’s] communications therein were merely attempts to enforce its security instrument and not attempts to collect a consumer debt.”

A ruling on a motion to dismiss concerning a question of law is subject to de novo review. Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006). A motion to dismiss tests the legal sufficiency of the complaint and does not determine factual issues. Id. The complaint’s allegations “must be taken as true and all reasonable inferences therefrom construed in favor of the nonmoving party.” Id. The trial court confines itself to considering the four corners of the complaint when ruling on a motion to dismiss. Swope Rodante, P.A. v. Harmon, 85 So.3d 508, 509 (Fla. 2d DCA 2012).

Section 559.72(9) provides as follows:

In collecting consumer debts, no person shall:
(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.

With reference to section 559.72(9), the gist of Gann’s claim is that the Bank sought to enforce a debt that was not legitimate because the parties had entered into a modification of the loan and that Gann was current on her payments.

In the section allowing for civil remedies against a person violating the provisions of section 559.72, the FCCPA states that “[i]n applying and construing this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act.” § 559.77(5); see also Kelliher v. Target Nat’l Bank, 826 F.Supp.2d 1324, 1327 (M.D.Fla.2011). In addition, “[i]n the event of any inconsistency between any provision of this part and any provision of the federal act, the provision which is more protective of the consumer or debtor shall prevail.” § 559.552.

The trial court erred in granting the Bank’s motion to dismiss when it determined that the Bank was only trying to enforce a security interest and not trying to collect a consumer debt from Gann. The trial court and the Bank relied upon the federal decision of the Middle District of Florida in Trent v. Mortgage Electronic Registration Systems, Inc., 618 F.Supp.2d 1356 (M.D.Fla.2007), aff'd, 288 Fed.Appx. 571 (11th Cir.2008). In Trent, the Middle District explained that “the purpose and intent of the FCCPA, like the [Federal Act], is to eliminate abusive and harassing tactics in the collection of debts. It is not meant to preclude a creditor or someone otherwise holding a secured interest from invoking legal process to foreclose.” Id. at 1361. The court concluded that “filing a foreclosure lawsuit is not a debt collection practice under § 559.72 of the FCCPA.” Id.

The court then went on to consider whether presuit letters or notices violated section 559.72(9). The court determined that MERS’ conduct did not violate section 559.72(9) because the debt was legitimate and MERS as mortgagee had the ability to foreclose. Id. at 1362. The court also determined that MERS did not violate section 559.72 by referring to itself as a “creditor” in the notice. Id. at 1363-64. But the court did not state that the presuit notice was not an attempt to collect a consumer debt.

Subsequent to Trent, the Eleventh Circuit considered a claim under the Federal Act based on a letter and enclosed documents that a law firm representing the lender sent to the debtors which demanded payment of the debt and threatened to foreclose on the property if the debtors did not pay. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1214 (11th Cir.2012). The law firm moved to dismiss the complaint for failure to state a claim and argued, among other things, that the letter and documents attached to the complaint did not constitute debt collection activity but instead were only an attempt to enforce its client’s security interest. Id. at 1215. The district court dismissed the claim, and the Eleventh Circuit reversed. Id. at 1218-19.

The Reese case involved both a promissory note and a security interest, and the promissory note is a debt within the plain language of the Federal Act. Id. at 1217. The letter stated “that the ‘Lender hereby demands full and immediate payment of all amounts due.’” Id. The letter also threatened “that ‘unless you pay all amounts due and owing under the Note,’ attorney’s fees “will be added to the total amount for which collection is sought.’” Id. The other documents also had language indicating that the law firm was “‘ATTEMPTING TO COLLECT A DEBT.’ ” Id.

The Eleventh Circuit rejected the law firm’s argument that the purpose of the letter and documents was only to enforce a security interest. Id. “That argument wrongly assumes that a communication cannot have dual purposes.” Id. The court recognized that if it had adopted the law firm’s argument “[t]he practical result would be that the [Federal] Act would apply only to efforts to collect unsecured debts. So long as a debt was secured, a lender (or its law firm) could harass or mislead a debtor without violating the [Federal Act].” Id. at 1218. Rather, “[a] communication related to debt collection does not become unrelated to debt collection simply because it also relates to the enforcement of a security interest. A debt is still a ‘debt’ even if it is secured.” Id.; see also Birster v. Am. Home Mortg. Servicing, Inc., 481 Fed.Appx. 579, 583 (11th Cir.2012) (“Reese provides that an entity can both enforce a security interest and collect a debt.”).

Here, the language in the letters from the Bank to Gann do not explicitly state that it is attempting to collect a debt as the documents did in Reese. However, the first letter states that if the Bank does not receive a specific amount due by a specified date, “foreclosure proceedings may begin or continue.” The second letter states that “it is vital that the full amount currently due is paid” and asks Gann to send “the total amount due, $414.30, immediately” or contact the Bank’s office. The letters plainly seek collection of an alleged debt.

Therefore, the trial court erred in determining that the letters did not contain language that could be construed as an attempt to collect on the underlying debt and only were attempts to enforce the Bank’s security instrument. Accordingly, we reverse the order to the extent it dismisses the FCCPA claim in count one.

We note that the Bank makes an alternative argument on appeal that Gann’s complaint was subject to dismissal because the Bank is not a debt collector under the FCCPA. The Bank did not argue this as a ground for dismissal in its motion or at the hearing. In fact, defense counsel asserted that the only issue at the hearing was whether debt collection activity had occurred.

Moreover, Florida courts have recognized that the FCCPA applies not only to debt collectors but also to any “person.” See Schauer v. Gen. Motors Acceptance Corp., 819 So.2d 809, 812 (Fla. 4th DCA 2002); see also § 559.72 (providing that “[i]n collecting consumer debts, no person shall ... ”). This provision “includes all allegedly unlawful attempts at collecting consumer claims.” Schauer, 819 So.2d at 812. Thus, the Fourth District determined that GMAC, the creditor, qualified as a person under the FCCPA and reversed the dismissal of the count against GMAC. Id. In doing so, the Schauer court noted that “[t]he Florida Act is different than its federal counterpart because it is not limited to debt collectors.” Id. at 812 n. 1.

Furthermore, in Morgan v. Wilkins, 74 So.3d 179, 181 (Fla. 1st DCA 2011), the appellees conceded “that the trial court was in error when it ruled that FCCPA pertains only to debt collectors, as that term is defined in the Act.” The court stated that “[sjection 559.72 provides that ‘no person’ shall engage in certain practices while attempting to collect a consumer debt.” Id.; see also Kelliher, 826 F.Supp.2d at 1327 (“Although the [Federal Act] does not apply to original creditors, the FCCPA has been interpreted to apply to original creditors as well as debt collection agencies.”).

Therefore, we reject the Bank’s alternative argument on appeal because the FCCPA applies to the Bank. Accordingly, we reverse the order to the extent that it dismisses count one and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and BLACK, JJ„ concur.


author: PER CURIAM.

text:
    Trolis KIRBY, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5880.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2014.
    Trolis Kirby, pro se.
   PER CURIAM.

We affirm in all respects the postconviction court’s denial of Trolis Kirby’s untimely motion filed under Florida Rule of Criminal Procedure 3.850. We write only to note that we agree with the opinions of our sister courts in Mendoza v. State, 93 So.3d 458, 458 (Fla. 4th DCA 2012), and Harricharan v. State, 59 So.3d 1162, 1163 (Fla. 5th DCA 2011), which explicitly reject the claim that the ruling in State v. Montgomery, 39 So.3d 252 (Fla.2010), can be applied retroactively to cases that were final before Montgomery was decided.

Affirmed.

MORRIS, BLACK, and SLEET, JJ„ Concur.


author: SLEET, Judge.

text:
    Leroy Jonathan TARVER, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5345.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   SLEET, Judge.

Leroy Jonathan Tarver appeals his convictions and sentences following a jury trial. Tarver raises two issues on appeal. We affirm his convictions and the second issue without further comment; however because the trial court applied the wrong standard when it denied Tarver’s request to proceed to the sentencing hearing pro se, we reverse and remand for the trial court to vacate Tarver’s sentences and to conduct another sentencing hearing.

Tarver filed two motions for a Nelson hearing prior to trial. Both motions were heard and the trial court ultimately determined that counsel’s performance was satisfactory. Tarver proceeded to trial with the assistance of counsel. The jury convicted Tarver of sale of cocaine within a thousand feet of a church, possession of cocaine, sale of cannabis within a thousand feet of a church, and possession of marijuana. After trial but before sentencing, Tarver filed a third motion for a Nelson hearing alleging that trial counsel was incompetent, had a conflict of interest, and was not adequately representing him. The trial court held a hearing and again denied Tarver’s request for new counsel. Tarver then asked to proceed pro se to sentencing. The trial court conducted a Faretta inquiry, and ultimately denied Tarver’s request to proceed pro se because it found that he was incompetent to represent himself. Tarver remained represented by counsel at his sentencing hearing.

“Faretta requires that a defendant’s decision to represent himself be made knowingly, intelligently, and in such a manner that ‘the record will establish that he knows what he is doing and his choice is made with eyes open.’ ” Gillyard v. State, 704 So.2d 165, 166 (Fla. 2d DCA 1997) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525). “Reversal is required where a defendant unequivocally requests to represent himself and the trial court denies the request without determining — after conducting a proper Faretta inquiry — that the choice of self-representation was not made knowingly and intelligently.” Goldsmith v. State, 937 So.2d 1253, 1256-57 (Fla. 2d DCA 2006). The standard is whether a defendant is competent to waive his right to counsel, not whether he is competent to represent himself. Fleck v. State, 956 So.2d 548, 549 (Fla. 2d DCA 2007); see also Eggleston v. State, 812 So.2d 524, 525 (Fla. 2d DCA 2002) (“A criminal defendant who is competent to choose self-representation may not be denied that choice, even though the decision for self-representation will most certainly result in incompetent trial counsel.”). There is no harmless error analysis available for this error. Eggleston, 812 So.2d at 525.

The transcripts of the pre-senteneing hearing suggest that the trial court found Tarver to be competent; however the court ultimately denied Tarver’s request because he “d[idn’t] have the minimum capability to adequately represent [him]self.” Because it is clear from the record on appeal that the trial court applied the wrong standard, we reverse and remand for the court to vacate Tarver’s sentence and conduct another sentencing hearing. If Tarver again seeks to waive his right to counsel, the court should conduct another Faretta inquiry and determine whether Tarver is competent to waive his right to counsel. If it finds that he is, Tarver should be allowed to represent himself at the sentencing hearing.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and WALLACE, JJ„ Concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: CASANUEVA, Judge.

text:
    Amanda MALDONADO, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-990.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.

      Amanda Maldonado, pro se.
   CASANUEVA, Judge.

Amanda Maldonado appeals the postcon-viction order denying her motion for jail time credit filed under Florida Rule of Criminal Procedure 3.800(a). We reverse.

Ms. Maldonado entered a negotiated no contest plea to two counts of petit theft and two counts of dealing in stolen property. The court sentenced her to time served for petit theft and two years’ incarceration suspended pending two years of drug offender probation and completion of the drug court program for each count of dealing in stolen property. The drug court participation agreement provided that “all credit for time served is waived at the time this twenty[-]four (24) month sentence is imposed.”

The court revoked Ms. Maldonado’s probation upon finding that she violated the conditions of her probation and imposed the two-year suspended sentence. Ms. Maldonado then filed a motion for correction of jail credit under rule 3.800(a), seeking credit for time served prior to the entry of her plea, credit for time served for drug court sanctions, and credit for time served following her arrest for violation of probation. The postconviction court denied the motion, reasoning that Ms. Maldonado had waived all jail credit and that “a waiver is a waiver,” citing Bradley v. State, 727 So.2d 1001,1002 (Fla. 4th DCA 1999).

As a threshold matter, the postcon-viction court should have considered the motion under Florida Rule of Criminal Procedure 3.801, which allows a defendant to move for credit for time spent in county jail before sentencing. However, under rule 3.801(c), Ms. Maldonado’s motion, although sworn to, was facially insufficient because she failed to allege

(4) whether any other criminal charges were pending at the time of the incarceration noted in subdivision (c)(3), and if so, the location, case number and resolution of the charges; and
(5) whether the defendant waived any county jail credit at the time of sentencing, and if so, the number of days waived.

On remand, the postconviction court shall provide Ms. Maldonado sixty days’ leave to file a facially sufficient motion under rule 3.801. See Fla. R. Crim. P. 3.801(e), 3.850(f)(2).

For purposes of the proceedings on remand, should Ms. Maldonado file a facially sufficient rule 3.801 motion, we address her argument that the trial court erred because the pre-plea jail credit she sought was orally awarded and her waiver of “all” jail credit did not apply to credit acquired subsequent to the waiver. We must reject this argument, as Ms. Maldonado did not allege that there was a discrepancy between the oral pronouncement and written sentence. See Burns v. State, 995 So.2d 1115, 1115 (Fla. 2d DCA 2008) (“On appeal, Burns also raised several other claims; however, none of these were properly raised before the postconviction court and therefore cannot be considered for the first time on appeal.”).

We also address the postconvietion court’s conclusion that “a waiver is a waiver” for all purposes. The waiver in Ms. Maldonado’s drug-court participation agreement does not conclusively refute her claim that she is entitled to additional credit for time served in jail as a drug-court sanction or after she was charged with violating probation but before her sentence was imposed. Section 921.161, Florida Statutes (2011), entitles a defendant to jail time credit for the time he or she spends in county jail “before sentence.” A defendant may waive this entitlement. See Hagan v. State, 25 So.3d 639, 640 (Fla. 1st DCA 2009). But a waiver of jail time credit must be specific, voluntary, and clear from the face of the record. See White v. State, 995 So.2d 1172, 1173 (Fla. 4th DCA 2008); Hill v. State, 985 So.2d 1216, 1217 (Fla. 5th DCA 2008); see also Johnson v. State, 60 So.3d 1045, 1053 (Fla.2011) (Pariente, J., concurring).

A claim that a defendant is entitled to jail credit earned subsequent to the entry of her plea is not conclusively refuted by a waiver of “all” jail credit, as a waiver of “all” jail credit at the time of the plea does not have “the effect of specifically and voluntarily waiving any credit to which [the defendant] thereafter may have become entitled.” Williams v. State, 711 So.2d 1369, 1370 (Fla. 4th DCA 1998). The postconviction court interpreted Bradley too broadly. Bradley did not discuss the waiver of jail credit acquired subsequent to the entry of a defendant’s plea. Bradley stands for the proposition that a waiver of a specific amount of jail credit applies to the original sentence and any subsequent resentencing. 727 So.2d at 1002; see also Sylvester v. State, 842 So.2d 977, 979 (Fla. 2d DCA 2003) (holding that upon the violation of probation of a sentence imposed pursuant to a plea bargain, the defendant is entitled to both the credit agreed upon in the plea agreement and credit for time spent in jail awaiting the violation of probation proceedings (citing Bradley, 727 So.2d at 1002)).

Accordingly, we reverse the denial of Ms. Maldonado’s motion with directions for the postconviction court to allow her an opportunity to file a facially sufficient motion. Should she do so, the posteonviction court shall follow the procedure required by rules 3.801(e) and 3.850(f). As it appears that Ms. Maldonado is scheduled for release in September, we encourage her to file her amended motion without delay and the postconviction court to expedite the proceedings.

Reversed and remanded with instructions.

ALTENBERND and CRENSHAW, JJ., Concur.

      . The defendant in Williams sought credit for time spent on a drug farm. Since the decision in Williams, the supreme court has held that defendants are not entitled to credit for time spent in drag treatment facilities as a condition of probation. See State v. Cregan, 908 So.2d 387, 391 (Fla.2005).


author: CONNER, J.

text:
    James TINDAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4593.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.

      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.
   CONNER, J.

James Tindal appeals his judgment and sentence after a jury found him guilty of burglary of a dwelling, grand theft, and two counts of petit theft. Tindal raises four issues on appeal. We affirm, without discussion, the trial court’s denial of Tin-dal’s motion for judgment of acquittal as to the sufficiency of the State’s evidence establishing Tindal’s involvement as a principal to the crimes. However, we reverse the trial court’s denial of Tindal’s motion for judgment of acquittal as to the charge of grand theft, reverse on the grounds of double jeopardy, and reverse as to one of the conditions of probation ordered by the trial court. Because a double jeopardy issue is raised, we discuss the facts of the crime with some detail.

Factual Background and Trial Proceedings

On the date of the offense, officers followed a black Lincoln Navigator driven by Tindal. Tindal’s co-defendant was in the passenger seat. Prior to that date, officers placed a tracking device on the Navigator based on information that the vehicle had been used in connection with other burglaries. On the date of the offense, officers both physically followed the vehicle and tracked it using a GPS device and a laptop computer.

Officers observed the Navigator drive by a particular house three times. The first two times, a work van was in front of the house, and the Navigator drove away. The third time, the work vehicle was gone, and the Navigator pulled into the driveway of the house. Officers observed Tindal walk to the front door, knock, and wait. When no one answered the door, Tindal walked to the gated area of the house, opened the gate, and went through. After a while, Tindal returned through the gate and back to the Navigator.

When Tindal returned to the Navigator, his co-defendant walked through the same gate. An officer observed the co-defendant bend down, appearing to pick something up off the ground, then, within seconds, heard a loud bang and the sound of glass shatter. A window, facing out to the gated area, was later found broken.

While the co-defendant disappeared behind the gate, officers saw Tindal “slouched down” in the Navigator on his phone. When the co-defendant returned to the Navigator, he was carrying a red pressure washer. After the co-defendant put the pressure washer into the back of the Navigator, he disappeared through the gate once again. He returned back to the Navigator, this time with what appeared to be a laptop computer under his shirt. The Navigator then left the house, but the officers stopped the vehicle before it was able to drive off.

Officers searched the Navigator and found the red pressure washer in the back of the vehicle and the laptop in another area of the vehicle. Tindal and the co-defendant were arrested and placed in the back of a patrol vehicle for transport to the jail. Officers searched the patrol vehicle prior to placing Tindal and the co-defendant inside, and also searched the co-defendant. Once the patrol vehicle arrived at the jail, jewelry was found under the seat near where Tindal was sitting.

At trial, the owner of the laptop testified:

Q: What was the purchase price of that laptop computer?
A: Between [$]1,800 and maybe [$]2,200 at the time.
Q: Did you do work on that laptop computer?
A:I did.
Q: And if I had asked you to go out and buy another one that day, on the 11th day of February, 2009, how much would it have cost you to replace that laptop?
A: Probably about the same, about [$]1,800 to [$]2,200.

On cross-examination, the owner was asked whether he knew anything about the depreciation value of the laptop from 2007, when he purchased the laptop, to 2009. The owner said that he did not know.

At the close of the State’s case-in-chief, Tindal moved for a judgment of acquittal. Regarding grand theft, Tindal argued that the State failed to prove that the laptop had a value over $300 to support a conviction for grand theft, and that the owner’s testimony regarding the value of the laptop was insufficient proof. The trial court reserved ruling on this issue. Tindal did not put on any witnesses or evidence.

The jury returned a verdict of guilty as to all counts. Tindal was adjudicated and placed on probation as part of his sentence. As a condition of his probation, the trial court ordered that Tindal “must be gainfully employed or in vocational training.”

On appeal, Tindal argues that the State failed to prove that the value of the laptop was over $300, that the convictions for grand theft and two counts of petit theft violate the prohibition against double jeopardy, and that the above-stated condition of probation imposed by the trial court was unconstitutional. We agree.

Legal Analysis

Grand Theft of the Laptop (Count 2)

In count 2, Tindal was charged under section 812.014(2)(e)l., Florida Statutes (2009), with grand theft of a laptop computer. The State was required to prove that the value of the laptop was greater than $300 at the time it was stolen. See Mansfield v. State, 954 So.2d 74, 76 (Fla. 4th DCA 2007). Tindal contends the trial court erred in denying his motion for judgment of acquittal because the State introduced insufficient evidence that the laptop had a value of $300 when stolen.

When reviewing a trial court’s denial of a motion for judgment of acquittal, “the appellate court determines whether the [S]tate introduced competent substantial evidence to support the guilty verdict.” Gilbert v. State, 817 So.2d 980, 982 (Fla. 4th DCA 2002). In moving for acquittal, the defendant admits all facts introduced in evidence, and every fair and reasonable inference must be drawn in favor of the State. Maglio v. State, 918 So.2d 369, 374 (Fla. 4th DCA 2005). A motion for judgment of acquittal should be denied “unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Ackon v. State, 14 So.3d 1146, 1148 (Fla. 4th DCA 2009) (quoting Darling v. State, 808 So.2d 145, 155 (Fla.2002)) (internal citations omitted).

“ ‘Value’ is an essential element of grand theft that must be proven by the State beyond and to the exclusion of every reasonable doubt.” Sanchez v. State, 101 So.3d 1283, 1286 (Fla. 4th DCA 2012). Section 812.012(10)(a)l. states that “[vjalue means the market value of the property at the time and place of the offense, or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)l., Fla. Stat. (2009).

In Lucky v. State, 25 So.3d 691, 692 (Fla. 4th DCA 2010), we outlined the two prong-test for determining whether the evidence of value elicited by the State at trial is sufficient to withstand a motion for judgment of acquittal. “First, the court must ascertain whether the person testifying is competent to testify to the value of the property,” and second, “if the person is competent, the court must ascertain whether the evidence adduced at trial is sufficient to prove that the property was worth over $300 at the time of the theft.” Id. (citations omitted).

The evidence regarding the value of the laptop came from the testimony of the owner and pictures introduced into evidence.

Although presumed competent to testify as to the value of stolen property with regard to the first prong, the owner must demonstrate personal knowledge of the characteristics of the stolen property, such as the quality, cost, and condition of the property. Id. 692; Sanchez, 101 So.3d at 1286.

Regarding the second prong, “[a]bsent direct testimony of the market value of the property, proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction.” Lucky, 25 So.3d at 692 (quoting Gilbert, 817 So.2d at 982). Evidence of the purchase price and age of the stolen item, without more, is insufficient. K.W. v. State, 983 So.2d 713, 715 (Fla. 2d DCA 2008). The insufficiency of evidence of the purchase price and age “is not remedied by the addition of bare evidence that the item was in working order when stolen.” Id.

In this case, the only testimony the owner gave was that the laptop was purchased about two years prior to the theft for a price between $1,800 and $2,200, and that he used the computer for work. There was no direct testimony of the fair market value or the condition of the laptop at the time it was stolen. On cross-examination, the owner denied knowing the depreciated value of the two-year-old laptop. The State argues that it proved the condition of the laptop by entering photographs of the computer into evidence. However, in Gilbert we held that, despite the fact that the State entered photographs of the items stolen into evidence, “the state failed to elicit testimony on the condition of the property at the time of the theft.” 817 So.2d at 983 (emphasis added). Therefore, the photographs alone were not enough to establish proof of the condition or depreciation of the laptop. Proof of cost when purchased, age since purchase, and vague testimony of use was insufficient proof of the market value of the laptop.

The owner’s testimony that the replacement cost was “probably the same” as the purchase price was also legally insufficient for two reasons. First, “[r]e-placement cost ... is not appropriate under the theft statute unless the State first presents evidence that the market value could not be satisfactorily ascertained.” A.D. v. State, 30 So.3d 676, 678 (Fla. 3d DCA 2010) (footnote omitted). No evidence was presented that the market value of the laptop could not be satisfactorily ascertained. Second, the testimony was insufficient because “evidence is insufficient to prove the value of the property is over $300, where the value of the property is estimated and no other proof is presented.” Gilbert, 817 So.2d at 982.

Accordingly, we reverse the trial court’s denial of Tindal’s motion for judgment of acquittal, with instructions that the trial court reduce the charge of grand theft to a second degree petit theft. However, as stated below, the trial court may elect to vacate the judgment and sentence in its entirety.

Double Jeopardy (Counts 2, 3, and k)

In count 2 of the information, Tin-dal was charged with grand theft of a laptop; in count 8, grand theft of a pressure washer; and in count 4, grand theft of jewelry. After the State failed to provide evidence as to the value of the pressure washer and jewelry, the State conceded at trial that counts 3 and 4 should be reduced to misdemeanor petit thefts.

Tindal also challenges his convictions for grand theft (by this opinion now reduced to petit theft) and two counts of petit theft. He argues that convictions for all three thefts violate the prohibition against double jeopardy. We agree.

Although Tindal failed to object on the basis of double jeopardy at trial, a double jeopardy challenge can be “raised by appellate counsel for the first time on appeal despite the lack of an objection on this ground below.” Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008) (citing Tannihill v. State, 848 So.2d 442, 444 (Fla. 4th DCA 2003)). This is because “a violation of double jeopardy is a fundamental error which can be raised for the first time on appeal.” Tannihill, 848 So.2d at 444.

“Because double jeopardy issues involve purely legal determinations, the standard of review is de novo.” Rimondi v. State, 89 So.3d 1059,1060 (Fla. 4th DCA 2012) (quoting Benjamin v. State, 77 So.3d 781, 783 (Fla. 4th DCA 2011)) (internal quotation marks omitted).

Our supreme court has stated that:

The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature “intended to authorize separate punishments for the two crimes.” Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Block-burger test, as codified in section 775.021, Florida Statutes (1997), to determine whether separate offenses exist.

State v. Paul, 934 So.2d 1167, 1171-72 (Fla.2006) (quoting Gordon v. State, 780 So.2d 17, 19-20 (Fla.2001)) (citations omitted). In regards to section 812.014, Florida Statutes, the supreme court has determined that the statute

constitutes a “clear statement of legislative intent” that convictions and sentences for multiple theft offenses arising from the same criminal episode are permitted.Section 812.014 is structured so that thefts of the various enumerated properties constitute separate offenses. The Legislature intended these thefts to be separate offenses and to constitute different crimes. The types of property specifically enumerated demonstrate that strong policy concerns motivated the Legislature to single out these theft offenses for separate punishment. See, e.g., § 812.014(2)(c)(5), Fla. Stat. (2003) (theft of a firearm); § 812.014(2)(c)(8), Fla. Stat. (2003) (theft of a fire extinguisher); § 812.014(2)(c)(ll), Fla. Stat. (2003) (theft of a stop sign).

Kelso v. State, 961 So.2d 277, 281-82 (Fla.2007) (emphasis added).

In this case, none of the stolen items (laptop, pressure washer, jewelry) are of a type of property that the legislature intended for separate punishment. Thus, we employ the Blockburger test, as codified in section 775.021, Florida Statutes (2009), to determine whether multiple convictions for the thefts are appropriate. However, “[b]ecause the Blockburger test applies to crimes occurring in only ‘one criminal transaction or episode,’ the first step is to review whether there was one criminal episode or multiple episodes.” Paul, 934 So.2d at 1172.

In the context of theft offenses, two supreme court opinions, Hearn v. State, 55 So.2d 559 (Fla.1951), and Hayes v. State, 803 So.2d 695 (Fla.2001), give guidance as to whether the multiple thefts in this case occurred during one criminal episode.

In Hearn, our supreme court addressed whether the defendant could be convicted of multiple counts of larceny for theft of livestock owned by different owners. 55 So.2d at 560. The evidence was that eleven head of cattle were grazing on the same range. Id. Although the opinion does not state how many owners were involved, not all the cattle were owned by same person or entity. Id. At the time of the theft, the cattle were rounded up and placed in the same truck. Id. In affirming multiple convictions of larceny, the court recognized the longstanding principle in this State that

where property is stolen from the same owner or from different owners at different times or places or as a result of a series of acts, separated in either time, place or circumstances, one from the other each taking is a separate and distinct offense .... If the converse is true, then it should follow that where several articles are taken at the same time and place as one continuous act, though owned by different people, the offense is a single larceny.
Each case of this nature must be determined by the facts and circumstances of the particular case. There is some conflict in the cases, but the clear weight of authority is to the effect that the stealing of several articles at the same time and place as one continuous act or transaction is a single offense, even though the property belongs to different owners, for the reason that it is only a single act or taking.

Id. The court went on to observe:

Larceny is an offense against the public, that is against the State, and the offense is the same whether the property stolen belongs to one person or several persons jointly or to several persons each owning separate parts thereof. The names of the owners of the stolen property constitute no part of the offense. They are stated in the information primarily as a matter of description for the purpose of identification and to show ownership in a person or persons other than the accused.

Id. at 561. It then concluded:

We will align ourselves with the majority rule in this country because we feel that to permit the dividing into several larcenies of objects which are the subject of larceny, although belonging to separate owners, when stolen at the same time, from the same place, and under the same circumstances with the same intent, would be violative of the spirit of the Constitution of the United States and the State of Florida that a man should not be put in jeopardy twice for the same offense.

Id. (emphasis added).

Fifty years later, the court discussed Hearn and the principles of double jeopardy applicable to theft of multiple items in deciding Hayes. 803 So.2d at 701. In Hayes, the issue was whether the defendant may be separately convicted of both armed robbery and grand theft of a motor vehicle where the defendant stole various items from inside a victim’s residence, including the victim’s car keys, and then proceeded outside the residence to steal the victim’s motor vehicle utilizing these keys. Id. at 696. After discussing Hearn with some detail and examining case law from other jurisdictions on the issue, the court concluded that in Hearn, it had adopted “the single larceny rule,” which considers four factors in determining whether theft of multiple items may be charged as separate crimes: (1) the location of the items taken, (2) the lapse of time between takings, (3) the number of owners of the items taken, and (4) the intervening events between the takings. Id. at 704.

In this case, the State argues that the theft counts did not arise out of the same criminal transaction because there were different victims and there was a temporal break between the takings. As both Hearn and Hayes make clear, the fact that there were different victims in this case is a factor to be considered, however, it is certainly not dispositive. We view the other three factors discussed in Hayes, the location of the items taken, the lapse of time between the takings, and the intervening events between the takings, to be more dispositive. The other three factors all relate to the State’s temporal break argument.

All of the items were taken from the same house, thus we conclude the items were taken from the same location. Although the co-defendant made two separate trips behind the gate, the trips were consecutive acts of traveling back and forth, with no significant pauses in between and no intervening events to suggest one episode of stealing stopped and another began. If Tindal had not served as the lookout and instead accompanied the co-defendant into the house, all of the items could have been removed and placed in the Navigator in one trip. Similar to Hearn, all of the items were stolen at the same time, from the same place, and under the same circumstances with the same intent. Thus, we determine that the theft of the pressure washer, laptop, and jewelry arose out of a single criminal episode.

“If the charges are not predicated on distinct acts and have occurred within the same criminal episode, we must next decide if the charges survive a same elements test as defined by section 775.021, Florida Statutes (2008), commonly referred to as the Blockburger analysis.” Partch v. State, 43 So.3d 758, 760 (Fla. 1st DCA 2010) (footnote omitted). Section 775.021(4)(b) states:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.[]
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4)(b), Fla. Stat. (2009). Since we have reversed the count of grand theft with instructions that the count be reduced to a second degree petit theft, and all of the counts of petit theft require identical elements of proof, the facts of the instant case fit the first exception under section 775.021(4)(b).

Therefore, we reverse and remand the case with instructions that the trial court amend and vacate the judgments and sentences as necessary so that Tindal stands convicted of only one count of second degree petit theft. See Benjamin v. State, 77 So.3d 781, 784 (Fla. 4th DCA 2011) (quoting Binns v. State, 979 So.2d 439, 442 (Fla. 4th DCA 2008)) (“When dual convictions of the same degrees are found to violate double jeopardy, the proper remedy is to ‘vacate the conviction and sentence on one of those counts.’ ”).

Condition of Probation

Tindal also challenges the trial court’s sentence as to the condition of probation that he “must be gainfully employed or in vocational training.” We agree that this is an illegal condition of probation.

Although “[a] trial court has the authority to order a defendant actively to seek full-time gainful employment during a term of probation,” Vezina v. State, 644 So.2d 602, 603 (Fla. 1st DCA 1994), the trial court in the instant case ordered Tin-dal to do more than “actively seek” gainful employment or vocational training; it ordered that he actually be gainfully employed or in vocational training. The condition that the trial court placed on Tindal is similar to a condition placed on the defendant in Walls v. State, 596 So.2d 811, 812 (Fla. 4th DCA 1992). In Walls, we reviewed a condition placed on the defendant that he “maintain full-time employment of at least thirty-five hours per week.” Id. In reviewing this condition, we stated:

The trial court’s requirement that [the defendant] maintain full-time employment is sufficiently egregious to be the equivalent of fundamental error. Factors beyond [the defendant’s control, for example, the poor economy, may prevent him from satisfying that element of his probation. As such, the trial court erred in placing the full-time employment requirement on [the defendant]. The court should have instead ordered [the defendant] to maintain or actively seek gainful employment.

Id. (emphasis added).

Since the condition placed on Tindal was improper, we instruct the trial court to modify that condition of Tindal’s sentence consistent with this opinion. See Boudreaux v. State, 578 So.2d 457, 458 (Fla. 1st DCA 1991).

Affirmed in part, reversed in part.

STEVENSON and TAYLOR, JJ., concur.

      . Although the trial court reserved ruling on Tindal’s motion for judgment of acquittal and never made an express ruling on the motion, it implicitly denied the motion later by adjudi-eating Tindal on the grand theft charge. See R.R. v. State, 137 So.3d 535, 537 (Fla. 4th DCA 2014).

      . The proof of value also does not support a conviction for first degree petit theft.

      . The record is unclear as to whether the trial court reduced the counts to first degree or second degree petit thefts. Since the charges should have been reduced to second degree petit thefts, we instruct the trial court to clarify this in the judgment on remand.

      . As pointed out in Hearn the identity of the owner of the stolen property is not an element of the crime.


author: HANZMAN, MICHAEL, Associate Judge.

text:
    John HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-779.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.

      Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   HANZMAN, MICHAEL, Associate Judge.

Appellant John Henry was convicted of second degree murder with a weapon and sentenced to life in prison. He claims that the trial court should have granted his motion for judgment of acquittal because— in his view — the evidence fell short of proving that he acted in a manner “evincing a depraved mind regardless of human life,” an element of the charged offense. See § 782.04(2), Fla. Stat. (2006); Fla. Std. Jury Instr. (Crim.) 7.4; Light v. State, 841 So.2d 623, 625 (Fla. 2d DCA 2003). Appellant also insists that the trial court committed reversible error by allowing the State to play an audio recording of testimony he gave in a prior trial, thereby enabling the jury to draw an impermissible inference as to why he was not testifying at his retrial. We affirm.

The evidence at trial was not in material conflict. Appellant believed that Isaias Arroyo had burglarized his apartment. A few days later he saw Mr. Arroyo driving in the neighborhood. Appellant jumped into a friend’s car and directed the friend to follow Mr. Arroyo’s vehicle. During this pursuit, appellant’s friend told him that he kept a baseball bat in the trunk.

Mr. Arroyo, accompanied by his wife, eventually pulled into a Wal-Mart parking lot. Appellant then retrieved the baseball bat from the trunk of the car and proceeded to repeatedly — and violently — strike Mr. Arroyo on his body, neck, and head. This relentless beating continued despite Mr. Arroyo’s initial attempt to flee, and his later futile effort to protect himself while on the ground. Though conscious at the time paramedics arrived, Mr. Arroyo later slipped into a coma and eventually died of resulting brain injuries. While appellant acknowledged that he followed Mr. Arroyo seeking revenge and that he intended to engage in a fight, he denied any intent to kill and testified that he only planned on using the bat after his friend told him it was in the trunk of the car.

Upon the close of the State’s case, appellant timely moved for a judgment of acquittal on the charge of second degree murder, arguing that his conduct only rose to the level of a third degree murder based upon aggravated battery with a deadly weapon. The trial court denied the motion and instructed the jury on second degree murder with a weapon and the lesser included offenses of manslaughter with a weapon and third degree felony murder.

The jury rendered its verdict finding appellant guilty on the second degree murder charge. He was subsequently sentenced to life in prison.

Our standard of review of the trial court’s order denying appellant’s motion for judgment of acquittal is de novo. Ortiz v. State, 36 So.3d 901, 902 (Fla. 4th DCA 2010). Our task is to ascertain whether, after viewing the evidence in a light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). In a second degree murder case, those elements are that: (1) the victim is dead; (2) the death was caused by the criminal act of defendant; and (3) the death was an unlawful killing by an act “imminently dangerous to another and demonstrating a depraved mind regardless of human life .... ” § 782.04(2), Fla. Stat. (2006); Fla. Std. Jury Instr. (Grim.) 7.4.

Appellant does not challenge the sufficiency of the State’s proof on the first two elements of the crime, as it is undeniable that the victim is deceased and that his death was caused by appellant’s criminal act. Nor does appellant deny that he engaged in conduct “imminently dangerous to another” — the first of two criteria embedded within the third element. Rather, appellant’s sole claim is that as a matter of law the evidence failed to prove that he acted in a manner demonstrating a “depraved mind without regard for human life,” the second finding required to satisfy the crime’s third element. He insists that the evidence, even when viewed in a light most favorable to the State, proves only that he engaged in reckless behavior in the form of an uncontrolled overreaction to his perceived victimization, and he directs us to a number of decisions vacating second degree murder convictions under what he suggests were similar circumstances.

To be sure, appellate courts — including this court — have reversed second degree murder convictions when the evidence proved no more than reckless behavior. See, e.g., Wiley v. State, 60 So.3d 588, 591-92 (Fla. 4th DCA 2011) (defendant who hit his sister’s boyfriend on the head with a gun, causing it to discharge and kill a bystander, did not act in a manner evincing a depraved mind); Light, 841 So.2d at 626 (defendant who had no prior history with victim, and demonstrated no “enmity at the time of the incident,” was guilty of simply “a serious, momentary misjudgment concerning the amount of force that was permissible” during an altercation on a dance floor).

We also have reversed second degree murder convictions where it was clear that the defendant impulsively overreacted to an immediate provocation. See, e.g., Dorsey v. State, 74 So.3d 521, 524-25 (Fla. 4th DCA 2011) (evidence was insufficient to support second degree murder conviction where defendant, after being confronted by a number of heavily intoxicated men, and punched in the face by victim, impulsively overreacted by shooting); McDaniel v. State, 620 So.2d 1308, 1308 (Fla. 4th DCA 1993) (reversing second degree murder conviction of father who overreacted by using excessive force — a knife — to “ward off further attack” by his son); accord Poole v. State, 30 So.3d 696, 698-99 (Fla. 2d DCA 2010) (reversing second degree murder conviction where evidence conclusively established that victim lunged at defendant “in an apparent attack” causing defendant, who had “nowhere to retreat,” to lash out with a knife).

These decisions recognize that: (a) a defendant who at worst acts recklessly does not satisfy the “depraved mind” element of the crime; and (b) conduct in the form of an immediate overreaction to an assault is generally insufficient to prove ill will, hatred, spite, or evil intent, as those mental states usually require more than an instant to develop. See Light, 841 So.2d at 626. Put simply, there certainly are cases where the quantity or quality of evidence does not permit a finder of fact to conclude, beyond a reasonable doubt, that the defendant committed an act “imminently dangerous to another and evincing a depraved mind regardless of human life 782.04(2), Fla. Stat. (2006). This is not one of them.

Appellant’s conduct was far from merely reckless. He chased the victim with a baseball bat, striking him repeatedly and violently more than 15 to 20 times, including several blows to the head. The evidence, viewed in the light most favorable to the State, showed that appellant continued this savage beating even after Mr. Arroyo lay motionless on the ground. This behavior was clearly in disregard for human life and was arguably sufficient to support even a first degree murder charge. Cf. Lanzafame v. State, 751 So.2d 628 (Fla. 4th DCA 1999) (affirming first degree murder conviction in case where defendant repeatedly hit the victim in the head with a baseball bat). Furthermore, appellant’s assault on Mr. Arroyo — while obviously an “overreaction” — was not an “impulsive” response to any threat at all, let alone an immediate one. It was committed out of ill will and hatred, in revenge for a perceived burglary that occurred days prior — a temporal gap which provided appellant ample time for reflection and contemplation. In sum, and as Justice Canady recently observed through a comment particularly apropos here, “[a] defendant who has brooded on a piior wrong and has nursed his resentment and anger into a full-blown rage is not one who lacked a depraved mind .... ” Haygood v. State, 109 So.3d 735, 747 (Fla.2013) (Canady, J., dissenting).

Appellant’s vicious attack was a deliberate administration of “street justice,” Antoine v. State, 138 So.3d 1064, 1074 (Fla. 4th DCA 2014), and the jury’s finding of guilt is supported by competent evidence establishing each element of the crime for which he was convicted. Johnston v. State, 863 So.2d 271, 283 (Fla.2003) (“Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence.”).

Ajfmned.

DAMOORGIAN, C.J., and FORST, J., concur.

      . Appellant was initially indicted for first degree murder and convicted of second degree murder. We reversed, finding that the trial court had incorrectly instructed the jury on the lesser included offense of manslaughter by act. Henry v. State, 126 So.3d 1071 (Fla. 4th DCA 2011). Appellant elected to testify at the first trial but invoked his constitutional right to refuse to testify during the retrial. His prior testimony was clearly admissible, see State v. Billie, 881 So.2d 637, 639 (Fla. 3d DCA 2004); § 90.803(18), Fla. Stat. (2011), and the trial court required that the recording be redacted so all the jury would hear were the questions and answers — the same as if a transcript had been read. And, unlike the situation presented in Barnes v. State, 970 So.2d 332 (Fla.2007), neither the recording nor the transcript was provided to the jury during deliberations. We find no abuse of discretion in the trial court’s handling of this evidence and affirm on this point without further discussion.

      . Evidence that the defendant intended to kill the victim is not required to secure a conviction for second degree murder. State v. Montgomery, 39 So.3d 252, 256 (Fla.2010).

      . What is described as the "third element” of this crime actually requires proof sufficient to support two distinct findings — the first being that the act itself be "imminently dangerous to another,” and the second being that it was done in a manner "demonstrating a depraved mind regardless of human life ....” § 782.04(2), Fla. Stat. (2006). An act is "imminently dangerous to another” if a person of ordinary judgment would know it was reasonably certain to kill or do serious bodily injury. Fla. Std. Jury Instr. (Crim.) 7.4. As for the second component of this element, a defendant’s conduct evinces a "depraved mind without regard for human life,” if done in ill will, hatred, spite or evil intent, and is of such a nature that the act itself indicates indifference to human life. Id.; Wiley v. State, 60 So.3d 588, 591 (Fla. 4th DCA 2011).

      . Appellant also makes much of the fact that, unlike a firearm, a baseball bat is not inherently a deadly weapon, and points out that when he left the scene, Mr. Arroyo was alive, moving, and still appeared to be conscious. We find both observations irrelevant. First, while a baseball bat might not be as inherently deadly as a firearm, it was still a jury question as to whether the manner in which appellant used the baseball bat constituted an act "imminently dangerous to another and demonstrating a depraved mind” without regard for human life. Competent, substantial evidence supported the jury’s determination that it was. As for appellant's second point, in assessing whether an act was committed in a manner evincing a "depraved mind regardless of human life,” the relevant inquiry is focused on the defendant’s state of mind and the nature and degree of the defendant’s behavior, not on how long the victim was able to consciously withstand the assault or remain alive.


text:
    Robert GOFF, Appellant, v. Cheryl Ann KENNEY-GOFF, Appellee.
    No. 4D13-3355.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.
    Rehearing Denied Sept. 15, 2014.

      Angela D. Flaherty of the Law Office of Angela D. Flaherty, Sarasota, for appellant.
    Myra J. Fried of Fried Law Firm, P.A., Lake Worth, for appellee.
   PER CURIAM.

In this post-dissolution of marriage action, the husband appeals an order denying his motion to rehear or vacate two separate orders. We agree with the husband that the trial court erred in requiring the husband to continue paying child support for the parties’ youngest child after the child had reached the age of eighteen and graduated from high school. As such, we reverse as to this issue. We find the other issues raised by the husband to be without merit and affirm without discussion.

In 2004, the trial court entered a final judgment of dissolution of marriage, which adopted and incorporated the parties’ marital settlement agreement. Pursuant to the agreement, the husband agreed to pay child support for the parties’ three children as well as an additional sum for spousal support. The husband’s obligation to pay child support would continue through attainment of the child’s twenty-first birthday if the child were “enrolled in college and still living at home with the Wife.”

In 2011, the husband sought to modify child support, in part due to the fact that the youngest child would turn eighteen and graduate from high school. During a hearing, the husband testified that the parties’ youngest child had reached the age of eighteen and was attending college at the University of Florida in Gainesville. In opposition to the husband’s petition, the wife testified that the child resided in student housing that he had to vacate during school breaks. Additionally, he would be living with her during the summer and taking classes at the community college while he was home.

The trial court denied the husband’s petition for modification. The court found that the parties’ youngest child “is attending college and resides with Former Wife on a permanent basis at this time, including the times that he is attending classes at the University of Florida.” The husband moved for rehearing, and the court denied the motion.

“The interpretation of the wording and meaning of the marital settlement agreement, as incorporated into the final judgment, is subject to de novo review.” Kipp v. Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003) (citation omitted). In interpreting a contract, “it must be assumed that each clause has some purpose” and “the court should interpret the contract in such a way as to give effect to every provision, unless such an interpretation distorts the plain meaning of the agreement.” Sch. Bd. of Broward Cnty. v. Pierce Goodwin Alexander & Linville, 137 So.3d 1059,1067 (Fla. 4th DCA 2014) (citation omitted). See also Branscombe v. Jupiter Harbour, LLC, 76 So.3d 942, 947 (Fla. 4th DCA 2011) (“An interpretation which gives a reasonable meaning to all provisions ... is preferred to one which leaves a part useless or inexplicable.”) (citation omitted).

The trial court’s order, requiring the husband to continue paying support, is contrary to the plain language of the marital settlement agreement. The trial court erroneously focused on the child’s permanent residency when it concluded that the child “is attending college and resides with Former Wife on a permanent basis at this time, including the times that he is attending classes at the University of Florida.” The marital settlement agreement does not require a determination of permanent residency but rather requires a determination as to where the child is living. A person’s permanent residency is not necessarily the same as where that person is living. See State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940); Sutherland v. Glens Falls Ins. Co., 493 So.2d 87, 89 (Fla. 4th DCA 1986).

Based on the undisputed testimony at the hearing, the child lived at the University of Florida in Gainesville and returned home only during breaks. Thus, the child was not “still living at home with the Wife” as required by the marital settlement agreement. Requiring the husband to pay support under these facts would render meaningless this portion of the agreement. Under the trial court’s interpretation, the child would be “living at home with the Wife” even if he were attending college in another state or country. Had the parties intended such a result, they would have required only that the child be attending college.

Because the parties’ youngest child was not living with the wife, we reverse and remand the portion of the order requiring the husband to continue to pay support for that child. We affirm in all other respects.

Affirmed in part, reversed in part, and remanded.

LEVINE, CONNER and KLINGENSMITH, JJ., concur.


text:
    Joseph A. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6123.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   DAKAN, STEPHEN L„ Associate Senior Judge.

In this appeal brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Joseph Collins properly raises a minor sentencing error relating to the costs imposed by the trial court. See In re Appellate Court Response to Anders Briefs, 581 So.2d 149, 152 (Fla.1991). We reverse the sentences in part -with regard to the cost of prosecution and remand for further proceedings consistent with this opinion. We affirm the convictions and sentences in all other respects.

Following a jury trial, Mr. Collins was convicted of two counts of forgery, two counts of uttering a forged instrument, two counts of felony petit theft, grand theft of $800 or more, and fraudulent use of personal identification information. At the State’s request, but without supporting documentation, the trial court imposed a cost of prosecution in the amount of $500. Mr. Collins filed a motion to correct sentencing error while this appeal was pending, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), in which he raised the issue of the $500 cost of prosecution imposed without supporting documentation. The trial court failed to rule on the motion, and the same is deemed denied. See O’Neill v. State, 841 So.2d 629, 629 (Fla. 2d DCA 2003).

Pursuant to section 938.27(8), Florida Statutes (2010):

Costs for the state attorney shall be set in all cases at no less than $50 per case when a misdemeanor or criminal traffic offense is charged and no less than $100 per case when a felony offense is charged.... The court may set a higher amount upon a showing of sufficient proof of higher costs incurred.

The burden is on the State to substantiate the amount of costs incurred in excess of the mandatory statutory amount. Simmons v. State, 24 So.3d 636, 638 (Fla. 2d DCA 2009).

It was error for the trial court to impose the $400 amount over the mandatory $100 cost of prosecution without requiring the State to provide documentation for the additional amount. See id. at 638; Diaz v. State, 901 So.2d 310 (Fla. 2d DCA 2005). Accordingly, we reverse this portion of the sentences, affirm in all other respects, and remand for further proceedings. We note that the additional amount may be reimposed if the State complies with the procedural requirements of the statute. See Simmons, 24 So.3d at 638.

Convictions affirmed, sentences affirmed in part and reversed in part, and remanded with directions.

VILLANTI and CRENSHAW, JJ., Concur.


text:
    Joseph FRATES, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1017.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    Joseph Frates, pro se.
   PER CURIAM.

Affirmed. See Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Hinson v. State, 57 So.3d 865 (Fla. 1st DCA 2011); McCutcheon v. State, 44 So.3d 156 (Fla. 4th DCA 2010); Brown v. State, 10 So.3d 1197 (Fla. 1st DCA 2009).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Joseph PAVESI, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1022.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See Blackmon v. State, 121 So.3d 535 (Fla.2013); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Richard OMELIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1024.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See Grant v. State, 770 So.2d 655 (Fla.2000); State v. Cotton, 769 So.2d 345 (Fla.2000); Thomas v. State, 778 So.2d 429 (Fla. 5th DCA 2001).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Rene VENTURA, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1037.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See Golden v. State, 870 So.2d 167 (Fla. 2d DCA 2004); Carr v. State, 495 So.2d 282 (Fla. 2d DCA 1986).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Johnny E. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1060.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    Johnny E. Simmons, pro se.
   PER CURIAM.

Affirmed. See Lamb v. State, 32 So.3d 117 (Fla. 2d DCA 2009); State v. Dehart, 913 So.2d 616 (Fla. 2d DCA 2005).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Thomas ROWLIE, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1083.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    Thomas Rowlie, pro se.
   PER CURIAM.

Affirmed. See Rowlie v. State, 130 So.3d 233 (Fla. 2d DCA 2013) (table decision); Harris v. State, 111 So.2d 994 (Fla. 2d DCA 2000).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Richard L. JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1114.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See Doby v. State, 25 So.3d 598 (Fla. 2d DCA 2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Gerald T.C. KING, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1283.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Horace DONALD, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1311.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See State v. Roby, 246 So.2d 566 (Fla.1971); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Franke v. State, 997 So.2d 424 (Fla. 2d DCA 2008); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Mosely v. State, 688 So.2d 999 (Fla. 2d DCA 1997); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Foss v. State, 834 So.2d 404 (Fla. 5th DCA 2003); Lopez v. State, 833 So.2d 283 (Fla. 5th DCA 2002); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002); Roberts v. State, 813 So.2d 1016 (Fla. 1st DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998); Freeny v. State, 621 So.2d 505 (Fla. 5th DCA 1993).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    James LANDIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-974.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See Stovall v. Cooper, 860 So.2d 5 (Fla. 2d DCA 2003) (en banc); Stokes v. State, 851 So.2d 788 (Fla. 2d DCA 2003); Brown v. State, 793 So.2d 27 (Fla. 2d DCA 2001).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Johnnie JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-991.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See Tisdol v. State, 794 So.2d 576 (Fla.2001); State v. King, 426 So.2d 12 (Fla.1982); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Jackson v. State, 737 So.2d 1089 (Fla. 2d DCA 1999) (table decision); Jackson v. State, 728 So.2d 219 (Fla. 2d DCA 1998) (table decision); Lee v. State, 666 So.2d 209 (Fla. 2d DCA 1995); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Dupree v. State, 708 So.2d 968 (Fla. 1st DCA 1998); McMillan v. State, 701 So.2d 1214 (Fla. 3d DCA 1997).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Phillip C. BLACKWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-604.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See Gisi v. State, 135 So.3d 493 (Fla. 2d DCA 2014); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Garnett v. State, 957 So.2d 32 (Fla. 2d DCA 2007) (en banc); Ericson v. State, 932 So.2d 311 (Fla. 2d DCA 2006); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Michael GRIDER, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-683.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    Michael Grider, pro se.
   PER CURIAM.

Affirmed. See State v. King, 426 So.2d 12 (Fla.1982); Grider v. State, 115 So.3d 365 (Fla. 2d DCA 2013) (table decision); Grider v. State, 108 So.3d 1090 (Fla. 2d DCA 2013) (table decision); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000); Collins v. State, 97 So.3d 305 (Fla. 4th DCA 2012); Foss v. State, 24 So.3d 1275 (Fla. 5th DCA 2009); Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Louis N. GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-929.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See State v. Matthews, 891 So.2d 479 (Fla.2004); State v. Barnes, 595 So.2d 22 (Fla.1992); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Ward v. State, 946 So.2d 33 (Fla. 2d DCA 2006); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Cook v. State, 816 So.2d 773 (Fla. 2d DCA 2002); Anderson v. State, 779 So.2d 345 (Fla. 2d DCA 2000); Lee v. State, 685 So.2d 1319 (Fla. 2d DCA 1996); Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008); Quintana v. State, 913 So.2d 628 (Fla. 3d DCA 2005); Clayton v. State, 904 So.2d 660 (Fla. 5th DCA 2005); Sampson v. State, 832 So.2d 251 (Fla. 5th DCA 2002); LaMar v. State, 823 So.2d 231 (Fla. 4th DCA 2002).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Adam B. KAREL, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-931.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    Adam B. Karel, pro se.
   PER CURIAM.

Affirmed. See Tisdol v. State, 794 So.2d 576 (Fla.2001); Lee v. State, 666 So.2d 209 (Fla. 2d DCA 1995); Carson v. State, 37 So.3d 884 (Fla. 1st DCA 2010); Dupree v. State, 708 So.2d 968 (Fla. 1st DCA 1998); McMillan v. State, 701 So.2d 1214 (Fla. 3d DCA 1997).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Arthur James LAWS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5955.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2014.

      Valarie Linnen, Atlantic Beach; and Tauna R. Bogle, Punta Gorda, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Arthur James Laws appeals his judgment and sentence for felony DUI. He argues that the trial court should have suppressed evidence of a medical blood draw and that the use of such evidence is a violation of double jeopardy. We reject his arguments and write primarily to express disagreement with several older county court cases that discuss double jeopardy in this context. See State v. Yoder, 18 Fla. Supp.2d 61 (Fla. Sarasota Cty. Ct.1986); State v. Malcin, 16 Fla. L. Weekly Supp. 430b (Fla. Leon Cty. Ct.2008); State v. Godfrey, 7 Fla. L. Weekly Supp. 627a (Fla. Broward Cty. Ct.2000).

Mr. Laws was involved in a motor vehicle accident at an intersection in Charlotte County shortly after midnight on September 5, 2009. He was arrested for DUI. This was at least his third such offense within ten years. The State filed an information alleging that he “did unlawfully drive or was in actual physical control of a vehicle within this state while under the influence of alcoholic beverages when affected to the extent that his normal faculties were impaired, or with a blood alcohol level of .08 or above.”

Our record contains some trial exhibits, but it does not contain a transcript of the trial. Thus, our knowledge of the facts of this case is limited. It is undisputed, however, that Mr. Laws was requested to take a blood, breath, or urine test and that he refused to take the test. The standard implied consent warning form was introduced into evidence during the State’s case.

It is also undisputed that Mr. Laws was injured in this accident and taken to Lee Memorial Hospital. On his arrival at the hospital, the doctors performed a medical blood test that revealed a serum blood alcohol level of “208.” Apparently, the State obtained these records, and Mr. Laws believed that they would be introduced into evidence. As a result, he filed a motion to suppress.

In his motion to suppress, Mr. Laws argued that introduction of the hospital records would violate his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, as well as his rights under Article I, section 12, of the Florida Constitution. His argument, however, was not based on an unreasonable search or seizure in the usual sense. Instead, he argued that, having refused to submit to a legal blood test and having suffered the consequences of that decision, the State should not be allowed to introduce his medical blood records into evidence. His argument is based on an unusual view of double jeopardy, but the three county court cases cited above support his argument.

The trial court denied the motion to suppress in a well-reasoned order, which has greatly assisted this court in the preparation of this opinion. At the conclusion of the order, the trial court explained that the denial was without prejudice to Mr. Laws’ right to require the State to meet “all notice, relevancy, foundational, and predicate thresholds” at trial.

Instead of entering a no contest or guilty plea with reservation of appellate review on the denial of his motion to suppress, Mr. Laws went to trial where he was convicted of the offense by a jury. The State’s exhibit list does not include records from Lee Memorial Hospital. Thus, we are unclear as to what evidence concerning the medical blood draw, if any, was presented to the jury. The defense exhibits include documents that would suggest the jury was informed of the serum blood alcohol test. Additionally, without the transcript, we do not know what other evidence was presented to establish impairment. Thus, it is doubtful that Mr. Laws has demonstrated that the court committed any error at his trial. See Klette v. Klette, 785 So.2d 562, 563 (Fla. 1st DCA 2001) (finding no reversible error where appellant failed to provide relevant hearing transcript or proper substitute so as to allow the appellate court to ascertain whether error had occurred).

In 2000, the supreme court answered a certified question from the Fourth District establishing that records of hospital blood tests can be admitted in DUI cases. See Baber v. State, 775 So.2d 258 (Fla.2000), cert, denied, 532 U.S. 1022,121 S.Ct. 1964, 149 L.Ed.2d 758 (2001). After the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the predicate steps necessary to introduce such evidence arguably might be more complex in order to satisfy the requirements of confrontation, see Johnson v. State, 929 So.2d 4, 7-8 (Fla. 2d DCA 2005), but it remains clear that such medical tests can be relevant to establish a DUI.

DUI can be established under several alternative theories. In cases involving alcohol intoxication, a prima facie case can be established by proof that a person operating or in actual physical control of a vehicle is “under the influence of alcohol ... to the extent that [his or her] normal faculties are impaired,” § 316.193(l)(a), Fla. Stat. (2009), the person has “a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood,” § 316.193(l)(b), or the person has “a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.” § 316.193(l)(c). Obviously, a hospital blood test may not be relevant to establishing a case under a breath-alcohol theory, but that theory was not included in the information in this case. Given the differences between legal blood tests and medical or serum blood tests, at a minimum, a hospital blood test may need to be supported by additional expert evidence to be relevant and admissible in a case under a blood-alcohol theory. But in a case under an impairment theory, medical or serum blood tests are more likely to be admissible with a lesser degree of expert testimony.

In this case, the record suggests no reason why the medical blood test would have been irrelevant to the charges contained in the information. Thus, Mr. Laws can argue only that his decision to refuse to comply with the request for a sobriety test under section 316.1932 somehow prevented the introduction of otherwise relevant evidence. It is noteworthy that subsection 316.1932(1) expressly makes a refusal to submit to the statutory test a separate misdemeanor offense and provides that the refusal is admissible in evidence “in any criminal proceeding.” Nothing in sections 316.1932, .1933, or .1934 suggests that the commission of this separate misdemeanor requires the suppression of relevant evidence in a criminal proceeding under section 316.193.

Mr. Laws’ double jeopardy arguments are predicated upon a series of county court cases that can be traced to Yoder, 18 Fla. Supp.2d 61. In Yoder, the defendant refused to submit to a blood test following an accident. At the hospital, a blood test was conducted for medical purposes, and it was not obtained at the request of law enforcement. The blood test itself was not taken in compliance with subsection 316.1932(l)(f). The court granted the defendant’s motion to suppress the blood test, stating that:

The implied consent statute still contemplates a right to refuse such a test if the defendant is willing to suffer a license suspension and the admission of his refusal into evidence at his criminal trial. The admission into evidence of a medical blood test under these circumstances would, in effect, penalize the Defendant twice — once for his refusal and again through admission of the medical blood test. If the Legislature had intended this result, it would have stated that a medical blood test was admissible despite the defendant’s refusal to submit to a legal blood test. This court will not presume what the Legislature has clearly not stated.

Subsequently, this line of reasoning was followed to grant similar motions to suppress medical blood tests in nearly identical cases. See Makin, 16 Fla. L. Weekly Supp. 430b; Godfrey, 7 Fla. L. Weekly Supp. 627a. We disagree with Yoder and its progeny that this particular civil penalty, which provides a penalty for the driver’s conduct that occurs after a stop for DUI, acts to bar a subsequent criminal prosecution for the earlier unlawful operation of the motor vehicle. The administrative penalty of revocation of a driver’s license is a civil sanction, not a criminal punishment. Cf. Lescher v. Fla. Dep’t of Highway Safety & Motor Vehicles, 985 So.2d 1078, 1081-86 (Fla.2008) (holding that unavailability of hardship license for persons with multiple DUI convictions considered civil sanction, not a criminal penalty). Even if the civil penalty for refusal to comply with a request for a sobriety test were somehow regarded as punishment for DUI, under the applicable analysis provided in Hudson v. United States, 522 U.S. 93, 95-96, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), the civil penalty would not bar the subsequent criminal prosecution. See, e.g., State v. Bowling, 712 So.2d 798 (Fla. 2d DCA 1998) (holding that under the analysis in Hudson, revocation of contractor’s license was a civil sanction and did not bar a criminal prosecution for fraud in violation of double jeopardy); Borrego v. Agency for Health Care Admin., 675 So.2d 666 (Fla. 1st DCA 1996) (holding that administrative suspension of doctor’s medical license following a criminal fraud conviction did not violate double jeopardy).

Affirmed.

VILLANTI and CRENSHAW, JJ., Concur.

      . See Baber v. State, 738 So.2d 379, 382 (Fla. 4th DCA 1999).

      . See J.J. Paul, III, DWI: Blood, Tests & Fears: A Crash Course in Blood Alcohol Samples, 25 Champion 39 (June 2001); Carol A. Roehrenbeck & Raymond W. Russell, Blood is Thicker than Water: What You Need to Know to Challenge a Serum Blood Alcohol Result, 8 Crim. Just. 14 (Fall 1993).