text:
    Alon D. SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3894.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.
    Rehearing En Banc Denied July 25, 2014.
    Alón D. Sims, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of Sims’s untimely and successive rule 3.850 motion, raising nine grounds, the first seven of which, claiming alleged trial court error in the jury instructions, were not cognizable. Although the trial court’s order did not address the two claims of illegal sentence, both were without merit.

In ground eight, Sims challenged his habitualization for a life felony, committed at a time when section 775.084, Florida Statutes, did not provide for habitual sentences for life felonies. The claim lacked merit because, despite the sentencing judge’s comments about use of a firearm, Sims was charged and convicted of kidnapping [without a firearm], a first-degree felony punishable by life, see § 787.01(2), Fla. Stat. (1995), not a life felony.

In ground nine, Sims claimed his prior conviction for robbery could not be the predicate for his sentencing as a habitual violent felony offender because he was sentenced for it as a youthful offender. However, he was adjudicated guilty and sentenced to prison for that offense. That claim was raised in his August 2005 rule 3.800(a) motion, and was denied, see, e.g., Whitfield v. Singletary, 730 So.2d 314 (Fla. 3d DCA 1999), and the denial was affirmed on appeal. Sims v. State, 957 So.2d 19 (Fla. 4th DCA 2007), rev. denied, 977 So.2d 577 (Fla.2008).

Ground nine included a claim that there was no proof of the date of Sims’s release from prison for the predicate offense to establish that the instant offenses were committed within the five-year period thereafter. However, that is a ground which had to be raised on direct appeal or, if he could show prejudice, in a timely rule 3.850 motion. See Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008); Ward v. State, 946 So.2d 33 (Fla. 2d DCA 2006). In any event, the record established that the conviction for the predicate offense itself fell within the five-year period, making proof of the release date unnecessary, see § 775.084(1)(b)2, Fla. Stat. (1995), and Sims himself personally testified to his release in March of 1995, less than a year before the instant offenses were committed.

Affirmed.

CIKLIN, LEVINE and KLINGENSMITH, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Godfrey ERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2864.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.
    Godfrey Era, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and LOGUE, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the State of Florida’s motion for rehearing, vacate our previous opinion filed February 12, 2014, and substitute the following opinion in its place.

Affirmed.


text:
    Terrell FUTCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2058.
    District Court of Appeal of Florida, First District.
    May 30, 2014.
    Rehearing Denied July 14, 2014.

      Terrell Futch, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


author:
PER CURIAM.
      GERBER, J.,

text:
    Joseph COTTO, Appellant, v. STATE of Florida, Appellee. Travis James, Appellant, v. State of Florida, Appellee.
    Nos. 4D13-1131, 4D13-1632.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.
    Rehearing Denied July 21, 2014.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas and James Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In these cases, which we have consolidated for panel and opinion purposes, the defendants, Travis James and Joseph Cot-to, appeal trial court orders denying their motions for postconviction relief.

Background: Travis James

In 1999, James was convicted after jury trial of first degree murder and attempted robbery with a firearm. He was sixteen years old at the time of the offenses on May 14, 1997. Our records from the direct appeal reveal that James confessed to police that he shot at the victim as he ran away following an attempted robbery. James told police that he was aiming for the victim’s legs, but the victim fell as he fired two shots in his direction. The trial court sentenced him to the mandatory sentence of life without possibility of parole for the murder and a concurrent term of thirty years in prison with a 25-year mandatory minimum for the attempted armed robbery.

This court affirmed the convictions and sentences on direct appeal in 2003. James v. State, 843 So.2d 933, 935 (Fla. 4th DCA), rev. denied, 855 So.2d 621 (Fla.2003). In 2004, a motion to correct sentence was granted, and the sentence for the attempted armed robbery was vacated. He was resentenced to fifteen years in prison concurrent with count one.

In February 2013, James filed the motion for postconviction relief at issue in this appeal. He claims that his mandatory sentence of life without possibility of parole for the murder committed when he was sixteen years old is unconstitutional pursuant to Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The trial court denied the motion as untimely and cited Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012), and Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012), which hold that Miller does not apply retroactively to cases that were final on direct review at the time Miller was decided. The trial court also noted that the motion was not under oath.

Background: Joseph Cotto

On April 27, 1999, just weeks before his 18th birthday, Joseph Cotto broke into the home of the two elderly victims while they were sleeping. He armed himself with a knife and brutally murdered them. After he was captured, Cotto confessed and told police that he killed the victims because “he wanted to.” He admitted taking various actions designed to delay detection of decomposition.

In March 2003, Cotto entered a negotiated plea with the state which agreed to waive the death penalty. The court sentenced Cotto to two consecutive life sentences for first-degree murder in counts one and two. The court also imposed a concurrent sentence of life in prison for armed burglary in count three and five years in prison for grand theft of a motor vehicle. He did not appeal.

In February 2013, he filed a rule 3.800(a) motion to correct illegal sentence claiming that his life sentences for the murder convictions were unconstitutional under Miller because he was seventeen years old at the time of the offenses. The trial court denied the motion based on the state’s response which argued that the motion was not under oath, as required by rule 3.850, and did not comply with content requirements. The state also asserted that the Office of the Public Defender had not been appointed to file a postconviction motion in the case. Finally, the state asserted that, if the claim could be heard, it was without merit because Miller does not apply retroactively. The state argued that Geter and Gonzalez were binding on the circuit court.

Discussion

If the trial courts had denied the motions based solely on the lack of an oath, or some other pleading deficiency, we would remand for the court to provide an opportunity to amend in order to cure this deficiency. See Spera v. State, 971 So.2d 754, 761 (Fla.2007). However, the trial court in both cases ruled upon the retroactivity question, and the question is properly before us.

We agree with the Second District Court of Appeal’s analysis in Toye v. State, 133 So.3d 540, 547 (Fla. 2d DCA 2014), and hold that Miller applies retroactively. We certify that this decision conflicts with the decisions in Geter and Gonzalez.

Because the Florida Supreme Court is presently considering the issue in Falcon v. State, 111 So.3d 973 (Fla. 1st DCA), rev. granted, No. SC13-865, 2013 WL 6978507 (Fla. June 3, 2013), we stay issuance of our mandate in this case. We have a number of cases pending in this court where this issue has been raised, and we will stay these cases by order pending a resolution in Falcon.

To further the discussion, we write to express additional reasons why Miller's holding should be given retroactive effect.

The Supreme Court of the United States has Already Given the Holding in Miller Retroactive Effect

The decision in Miller addressed two cases involving two differently situated juvenile offenders. Evan Miller’s case came to the Court following affirmance by the state court on direct appeal. Miller, 132 S.Ct. at 2463. Kuntrell Jackson, on the other hand, had been convicted in 1999, and his conviction was affirmed on direct appeal in 2004. Jackson v. State, 359 Ark. 87, 194 S.W.3d 757 (2004). He did not petition for postconviction relief. In January 2008, he filed a petition seeking a writ of habeas corpus from a state circuit court. Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103, 104 (2011). The circuit court dismissed, and the Supreme Court of Arkansas affirmed. Id.

The Supreme Court of the United States granted certiorari as to Kuntrell Jackson’s case and reversed and remanded for further proceedings. Miller, 132 S.Ct. at 2461-63. The Supreme Court has already given its decision retroactive effect by granting relief to Kuntrell Jackson whose conviction and sentence had already become final on direct review.

Were we to deny the appellants in this case the same relief, presumably they could pursue their cases through the courts, and the Supreme Court would, pursuant to the doctrine of stare decisis, afford appellant equal protection as Kuntrell Jackson. Thus, we are bound to give Miller ’s holding retroactive effect.

The Second Strand of Precedent Applied in Miller Has Been Applied Retroactively

In Miller, the Court applied two strands of precedent. “The first has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.” Id. at 2463 (citing Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which held that sentencing a juvenile to life without parole for a non-homicide offense violates the Eighth Amendment). See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (death penalty for non-homicide); Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (death penalty for children); Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (death penalty for the mentally retarded).

This first strand of precedent is clearly substantive as it prohibits a kind of punishment for a class of offenders. The holdings in these cases are “retroactive” in that the prohibition on the penalty applies to all offenders — regardless of when the punishment was imposed. Thus, we have held that Graham applies retroactively. St. Val v. State, 107 So.3d 553, 555 (Fla. 4th DCA 2013).

The second strand of precedent is not as clear. This strand involves cases that “prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death.” Miller, 132 S.Ct. at 2463-64 (citing Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), which held that a statute requiring a mandatory death sentence was unconstitutional, and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which held that sentencing authorities must have discretion to consider mitigating factors in determining whether to impose a death sentence). Lockett — which altered what must be considered when determining whether to impose a death sentence — was applied retroactively. Riley v. Wainwright, 517 So.2d 656, 657 (Fla.1987).

In Geter, the Third District Court of Appeal based much of its analysis on its conclusion that the decision in Miller is procedural rather than substantive. 115 So.3d at 378-82. Whether that is entirely accurate is subject to argument. By invalidating a statute that mandated a life without parole sentence, the Miller decision impacts the range of possible penalties available to this class of offenders. Nevertheless, even if the Miller decision is procedural, this is not determinative of the retroactivity question. Certain “procedural” changes have been found to be a development of fundamental significance. Lockett, which the Florida Supreme Court has applied retroactively, is a fine example.

While Lockett involved the death penalty, and death is often said to “be different,” the Court in Miller and Graham went to great lengths to explain how a sentence of life without possibility for parole is like imposing a death sentence on a juvenile. Graham, 560 U.S. at 69-70, 130 S.Ct. 2011; Miller, 132 S.Ct. at 2466-67. A juvenile sentenced to life without parole has been sentenced to die in prison except for the possibility of executive clemency which the Court concluded did not cure the Eighth Amendment violation.

We conclude that, like Lockett, Miller is a development of fundamental significance for purposes of retroactivity analysis under Witt v. State, 387 So.2d 922, 929 (Fla.1980).

The Impact on the Administration of Justice

The decisions in Geter and Gonzalez gave great weight to the “floodgates” argument when assessing the third factor of the Witt test. See Gonzalez, 101 So.3d at 887-88 (quoting Geter).

Judge Emas in his dissent in Geter noted that in 2009 there were 266 inmates statewide whose cases would be affected: .26% of Florida’s inmate population at the time. 115 So.3d 385, 399. According to the Staff Analysis for Senate Bill 1350, which failed to pass during the 2013 legislative session, the Florida Department of Corrections reported that there may be up to 222 inmates statewide that would need to be resentenced under Miller. In view of this, the floodgates argument is less than persuasive.

The impact on the administration of justice need not be substantial. The Fifth District Court of Appeal has held that the proper remedy for defendants being sentenced under the presently unconstitutional capital sentencing scheme is to revive the prior version of section 775.082(1), Florida Statutes (1993), which provided for a mandatory sentence of life without possibility of parole for 25 years. Horsley v. State, 121 So.3d 1130, 1131 (Fla. 5th DCA), rev. granted, SC13-1938, 2013 WL 6224657 (Fla.2013).

Thus, if the statutory revival remedy is adopted, the resentencing of these 222 inmates would involve a limited proceeding to determine whether the circumstances of the ease are such that life without possibility of parole should be imposed or whether the defendant should be sentenced so as to qualify for parole after 25 years. Miller, 132 S.Ct. at 2469 (quoting Graham, 560 U.S. at 75,130 S.Ct. 2011).

The remedy of reviving the possibility of parole for juvenile murderers balances the competing interests at stake. On one end of the scale is the rehabilitative interest of the offender which was at the heart of the Miller and Graham decisions. The Court in Miller and Graham emphasized:

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.

Graham, 560 U.S. at 75, 130 S.Ct. 2011.

The Court in Miller adopted this same reasoning as to life without parole sentences for homicide offenses. What Miller and Graham require is a sentencing scheme that allows the court to consider a juvenile’s suitability for rehabilitation and a possibility for release. The Court in Miller did not foreclose life without parole sentences for juvenile murderers but observed:

[W]e do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U.S., at 573, 125 S.Ct. 1183; Graham, 560 U.S. at 68, 130 S.Ct. at 2026-2027. Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

Miller, 132 S.Ct. at 2469.

On the other end of the scale, weighing against the rehabilitative interest of the offender, is the clear legislative intent that those convicted of first-degree capital murder receive the harshest penalty permitted by law. Also weighing on this end of the scale is the strong interest in finality for criminal sentences, and the retributive interests and respect for the family of the victim(s). The harsh sentence that has been created by the legislature serves deterrent functions as well.

Permitting for the possibility of parole assures that a convicted murderer does not leave prison unsupervised. Society has a strong interest in ensuring that those who commit the most heinous of crimes are punished severely. The rehabilitation of such offenders must be scrutinized closely and parole supervision after release from prison provides a fair balance in this equation.

We do not believe that de novo resentencing is required by Miller. All that is required is a sentence that provides for the possibility of parole and for the defendant to actualize the “heightened capacity for change” inherent in youth. The question at a Miller resentencing should be whether the circumstances present the “uncommon” occasion where the harshest penalty of life without parole is appropriate. For these reasons, we disagree that retroactive application would have an adverse impact on the administration of justice.

Conclusion

We agree with the Second District Court of Appeal’s analysis in Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014), and hold that Miller v. Alabama applies retroactively to cases on collateral review. We certify that this decision conflicts with Geter v. State, 115 So.3d 385 (Fla. 3d DCA 2013) (en banc), and Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012).

The trial courts erred in denying the postconviction motions on appeal in these cases. We must reverse and remand for further proceedings.

Because the issue in this case is presently on review by the Florida Supreme Court in Falcon v. State, 111 So.3d 973 (Fla. 1st DCA), rev. granted, No. SC13-865, 2013 WL 6978507 (Fla. June 3, 2013), and we are confident that the court will make a full determination of the issues presented, we stay issuance of our mandate in this case pending the outcome of that proceeding. Other cases pending with this court raising this same issue shall be stayed by order pending the outcome in Falcon.

Reversed and remanded. Mandate stayed.

DAMOORGIAN, C.J., and GROSS, J., concur.

GERBER, J., dissents with an opinion.

GERBER, J.,

dissenting.

I respectfully dissent. I agree with the third district’s decision in Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012). As in Geter, I would hold that we should not apply retroactively Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), to cases like the instant cases which were final before the United States Supreme Court issued Miller. I would adopt the third district’s reasoning in its entirety. Thus, I would affirm the trial courts’ denials of the appellants’ motions for post-conviction relief. See Gonzalez v. State, 101 So.3d 886, 888 (Fla. 1st DCA 2012) (agreeing with Geter, adopting its reasoning in its entirety, and holding that Miller should not be applied retroactively); but see Toye v. State, 133 So.3d 540, 547 (Fla. 2d DCA 2014) (concluding that Miller applies retroactively and certifying conflict with Geter and Gonzalez).

However, I agree with the majority that we should stay issuance of our mandate in this case pending our supreme court’s decision on the retroactivity issue in Falcon v. State, 111 So.3d 973 (Fla. 1st DCA), rev. granted, No. SC13-865, 2013 WL 6978507 (Fla. June 3, 2013).

      . In his Initial Brief, appellant’s counsel argues that the life sentence for the non-homicide count is illegal based on Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). That claim was not raised in the motion below and will not be addressed for the first time in this appeal. Atwell v. State, 128 So.3d 167, 169 (Fla. 4th DCA 2013).

      . The Fifth District Court of Appeal has followed Geter and Gonzalez in citation opinions. Anderson v. State, 105 So.3d 538 (Fla. 5th DCA 2013); Ferrell v. State, 105 So.3d 539 (Fla. 5th DCA 2013).


text:
    Tavarence Ramone WIGGINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-78.
    District Court of Appeal of Florida, Third District.
    June 4, 2014.
    Rehearing Denied July 31, 2014.

      Matthew Joseph Troccoli, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and SALTER and EMAS, JJ.
   PER CURIAM.

Tavarence Wiggins appeals a circuit court order denying his motion for a writ of audita querela defendentis and his claim of disparate treatment in a criminal sentence alleged to be manifestly unjust. We treat Wiggins’ motion as a post-conviction motion under Florida Rule of Criminal Procedure 3.850, and we affirm the order denying that motion.

Wiggins was one of fourteen co-conspirators charged in 1997 with Florida Racketeering Influenced and Corrupt Organization (RICO) Act violations and conspiracy to commit RICO act violations (among other charges), allegedly as part of a scheme to rob drug dealers of their money and drugs. Wiggins and the four co-eonspira-tors addressed in his post-conviction motion were convicted and sentenced following separate trials. In each of those trials, the state requested a “principal” jury instruction that was not confined to particular counts. Wiggins’ conviction and sentence were affirmed on direct appeal.

Wiggins, the first co-conspirator to be tried, was found guilty on the RICO conspiracy, trafficking in cocaine, and robbery counts. He was acquitted on all other counts. As a habitual violent felony offender, Wiggins was sentenced to life imprisonment for the RICO conspiracy and cocaine trafficking counts, and to thirty years on the robbery count.

Four other co-conspirators were tried and convicted of charges which included a RICO conspiracy count: Kanisky Evans; Ernest McKay; Wallace Johnson; and Daniel Hilbert. As with Wiggins’ case, the convictions and sentences for these four defendants were also affirmed on appeal.

In 2007 and 2008 each of these five co-conspirators filed petitions for belated appeal alleging ineffective assistance of appellate counsel for failing to argue that the principal instruction should not have been given in connection with a conspiracy count. Such an argument was well taken under a number of reported decisions analyzed in the Evans opinion discussed below. But for reasons that are unclear, the panel of this Court which considered Wiggins’ petition denied it, while the panel deciding Evans’ petition granted it and remanded Evans’ case for a new trial on the conspiracy counts only. Evans v. State, 985 So.2d 1105 (Fla. 3d DCA 2007). Thereafter, the panels of this Court which considered the petitions filed by the three remaining co-conspirators cited and relied upon Evans, remanding the respective conspiracy counts for a new trial. McKay v. State, 988 So.2d 51 (Fla. 3d DCA 2008); Johnson v. State, 990 So.2d 1245 (Fla. 3d DCA 2008); and Hilbert v. State, 992 So.2d 441 (Fla. 3d DCA 2008).

On remand, the four successful petitioners entered into plea negotiations with the state, obtained substantial reductions in their respective sentences (originally ranging from life imprisonment to 65 years, adjusted to sentences that ranged from ten to eighteen years). All four were released from imprisonment before Wiggins filed his most recent post-conviction motion.

After failing to obtain relief here, Wiggins filed a petition for federal habeas corpus under 28 United States Code § 2254. In 2011, the United States District Court for the Southern District of Florida granted Wiggins relief on one of his eleven claims — his ineffective assistance of appellate counsel claim relating to the principal instruction. Wiggins v. McNeil, No. 08-22473, 2011 WL 3878335 (S.D.Fla. Aug. 31, 2011). That Court remanded Wiggins’ case to the state trial court for a new trial on the RICO conspiracy count.

On remand, however, the state and Wiggins did not enter into a plea bargain. Instead, the state merely nol prossed the RICO conspiracy count, leaving intact Wiggins’ convictions and sentences on the cocaine trafficking and robbery counts. Wiggins continues, therefore, to serve his sentences of life imprisonment and 30 years on those two counts, while his co-conspirators are (according to the record before us) at liberty.

Analysis

Wiggins argues that this Court’s disparate ruling in his case in 2008 prevented him from plea bargaining contemporaneously with his four co-conspirators and the state to obtain the same relief those similarly-situated defendants obtained (essentially a reduction of sentence to time served). We are urged to “brush aside formal technicalities and issue such appropriate orders as will do justice,” Anglin v. Mayo, 88 So.2d 918, 919 (Fla.1956), and to correct a manifest injustice when we can. Adams v. State, 957 So.2d 1183, 1186 (Fla. 3d DCA 2006).

Alternatively, Wiggins argues that Wiggins’ disparate treatment, as compared to the four co-conspirators now free, is a violation of the equal protection clauses of the United States and Florida Constitutions. While comparative proportionality between co-defendants’ sentences in death penalty cases has been the subject of rigorous analysis in the Supreme Courts of the United States and Florida, a narrower concept of proportionality applies in non-death penalty cases. Peters v. State, 128 So.3d 832, 850 (Fla. 4th DCA 2013).

In the present case, the remaining sentences on Wiggins’ convictions trafficking in cocaine and robbery are legal and within the legislatively-established guidelines, and there is no record before us regarding the state’s assessment of the other four co-conspirators’ criminal histories, input from victims, perceived dangerousness, or other reasons for entering into a plea bargain. Wiggins may or may not be “similarly situated” to the other four co-conspirators, had the trial court been able to consider all five co-conspirators’ charges, trials, and pre-sentence reports. We cannot direct the state to enter into a “comparable” plea bargain or to release Wiggins. Upon the vacation of the judgment and sentence on the RICO conspiracy, the state on remand granted Wiggins complete relief by entering a nolle prosequi to that count. We are not at liberty to speculate why the state chose to negotiate a subsequent plea with the co-defendants on the other, unrelated and unaffected counts, but chose not to do the same with Wiggins.

For these reasons, the trial court’s denial of Wiggins’ motion is affirmed.

      .The writ stemmed from English chancery practice and sought relief from a judgment based on subsequent evidence, defenses, or other developments making further enforcement contrary to justice. The writ has been abolished in Florida. Alday v. Singletary, 719 So.2d 1260 (Fla. 1st DCA 1998).

      . §§ 895.01-.06, Fla. Stat. (1997).

      . Each count of the amended information other than count II (RICO conspiracy) included a charge of being a principal in the first degree under section 777.011, Florida Statutes (1997).


text:
    Jeremiah CASTEEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4471.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.
    Rehearing Denied July 28, 2014.
    Jeremiah Casteel, Doral, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order denying appellant’s rule 3.800(a) motion, but for reasons other than those argued by the State in its response. Appellant filed his motion seeking additional jail credit on September 26, 2013. The motion was not under oath. The trial court denied the motion without explanation, without ordering a state response, and without including any record attachments.

In response to our order to show cause in this appeal, the State argues that we should affirm because a case summary provided with the record on appeal suggests that the trial court granted additional jail credit by order entered on April 23, 2013. The State concedes, however, that we would normally remand based on the trial court’s failure to attach records showing conclusively that appellant was not entitled to relief. See St Cyr v. State, 126 So.3d 1166 (Fla. 4th DCA 2012); Ways v. State, 114 So.3d 350 (Fla. 3d DCA 2013).

We do not accept the State’s concession. The Florida Supreme Court has made clear that a trial court is not required to attach any records to an order denying a rule 8.800(a) motion. Johnson v. State, 60 So.3d 1045, 1051 (Fla.2011). The burden is on the movant to show his entitlement to relief is clear on the face of the record. Id.

In this case, appellant filed his motion after the July 1, 2013, effective date of newly-enacted Florida Rule of Criminal Procedure 3.801. This new rule, which governs jail credit claims, requires that the claim be raised within one year after the sentence becomes final. A rule 3.801 motion must be filed under oath. Fla. R. Crim. P. 3.801(c). The procedures of rule 3.850(f) apply to jail credit claims brought under rule 3.801. Fla. R. Crim. P. 3.801(e). Thus, when a defendant files a sworn and legally sufficient rule 3.801 jail credit motion, the court can be required to attach records refuting the claim. See Fla. R. Crim. P. 3.850(f)(5).

The motion filed by appellant in this case was not under oath and did not comply with the requirements of rule 3.801. We affirm without prejudice for appellant to file a sworn and legally sufficient rule 3.801 motion within the time remaining under the rule. Fla. R. Crim. P. 3.801(b) (“For sentences imposed prior to July 1, 2013, a motion under this rule may be filed on or before July 1, 2014.”).

Affirmed without prejudice.

MAY, LEVINE and KLINGENSMITH, JJ., concur.


text:
    Arselio GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1753.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.
    Arselio Gonzalez, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Moore v. State, 114 So.3d 291 (Fla. 4th DCA 2013); Simmons v. State, 104 So.3d 1185 (Fla. 1st DCA 2012).

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


text:
    Leonides LEONLUBIANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-418.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Rochester v. State, 95 So.3d 407 (Fla. 4th DCA 2012), argued, No. SC12-1932 (Fla. Oct. 7, 2013).

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


text:
    Eric Warren MOEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1114.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.
    Eric Warren Moen, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 825 So.2d 994, 996 (Fla. 4th DCA 2002).

TAYLOR, LEVINE and KLINGENSMITH, JJ., concur.


text:
    David NEVERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-650.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.
    David Neverson, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

The denial of appellant’s rule 3.800(a) motion is affirmed without prejudice for him to file a timely and legally sufficient rule 3.801 motion for correction of jail credit.

Affirmed.

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


text:
    Luis GASTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2784.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2014.
    Luis Gaston, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Defendant appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, and the trial court’s order prohibiting him from filing further pro se motions. We affirm the denial of the rule 3.850 motion, but remand for the limited correction of a scrivener’s error as discussed below. We reverse the trial court’s order prohibiting Defendant from filing future pro se pleadings.

Defendant was charged with committing three offenses, including attempted felony murder in the first degree. In exchange for his plea, the State agreed to reduce that offense to attempted felony murder in the second degree. The plea form described the reduced offense as attempted felony murder in the second degree. During the plea colloquy, the court and the parties repeatedly described the reduced offense as attempted felony murder in the second degree. However, at one point during the colloquy, the trial court omitted the word “felony” and described the offense as “attempted second degree murder.” The latter offense was reflected on the written judgment. Defendant did not file a direct appeal, but he filed a postcon-viction motion under rule 8.800(a) and one under rule 3.850.

The instant motion was Defendant’s second rule 3.850 motion, and his third post-conviction motion ever filed. He argued that he was entitled to relief under rule 3.850 based on newly discovered evidence. Particularly, he claimed that he discovered in 2009 that the written judgment reflected a conviction for attempted second degree murder instead of attempted second degree felony murder. He also argued that the court committed a manifest injustice by accepting a plea for an uncharged offense. The trial court summarily denied the motion as untimely and issued an order to show cause to Defendant as to why he should not be prohibited from filing future pro se motions pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). After receiving his response, the court barred Defendant from future pro se filings.

With regard to the rule 3.850 motion, we agree that the motion was untimely filed and that the newly discovered evidence exception did not apply since the written judgment was available before the two-year deadline had expired. See Schultheis v. State, 125 So.3d 932 (Fla. 4th DCA 2013). Therefore, we affirm the lower court’s ruling. Nevertheless, we understand why the discrepancy between the written judgment and Defendant’s plea form has caused some confusion. Based on the transcripts, the plea form, Defendant’s motion, and the State’s response, it is clear that the parties agreed to a reduced charge of attempted second degree felony murder. Therefore, the omission of the word “felony” on the judgment appears to be a scrivener’s error that warrants correction. The State has no objection. Accordingly, we remand to the lower court for the limited purpose of correcting this scrivener’s error on the judgment so that it is consistent with the terms of the plea agreement.

Furthermore, we find that the trial court abused its discretion in barring Defendant from further pro se filings after his third postconviction motion. Florida courts have long recognized the need for judicial economy and the importance of curtailing the egregious abuse of judicial processes. See, e.g., Bivins v. State, 35 So.3d 67 (Fla. 1st DCA 2010). Nevertheless, barring a criminal pro se litigant from filing future petitions has been described as an “extreme remedy” which should be reserved for those who have repeatedly filed successive, frivolous, and meritless claims which were not advanced in good faith. See Martin v. Stewart, 588 So.2d 996 (Fla. 4th DCA 1991); see also Mims v. State, 994 So.2d 1233 (Fla. 3d DCA 2008).

In this case, Defendant previously filed a rule 3.800(a) motion and a timely rule 3.850 motion. Although those motions did not succeed, the issues raised were not successive or repetitive and they appeared to have been advanced in good faith. See Jordan v. State, 36 So.3d 796 (Fla. 1st DCA 2010) (vacating order barring appellant from future pro se filings because his second rule 3.800(a) motion contained issues not previously raised and was not successive).

Moreover, the instant claim, although untimely, was grounded on a clear and undisputed discrepancy in the record which had not been previously raised or addressed on the merits. While there is no bright line rule on the maximum number of filings a pro se litigant can make before he is barred, we do not think that the three filings in this case justify such a serious sanction. Therefore, we reverse the trial court’s order prohibiting Defendant from filing any future pro se pleadings.

Affirmed in fart, reversed in part, and remanded.

MAY, GERBER and LEVINE, JJ., concur.


text:
    Kerry WESTON, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION as a Trustee for the Asset Backed Pass-Through Certificates Equity Loan Trust, Series 2006-FM2, Appellee.
    No. 4D13-3214.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.
    Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for appellant.
    Todd Drosky of Frenkel Lambert Weiss Weisman & Gordon, LLP, Fort Lauder-dale, and Adam B. Leichtling and N. Alejandra Arroyave Lopez of Lapin & Leich-tling, LLP, Coral Gables, for appellee.
   PER CURIAM.

Affirmed. See Condo. Ass’n of La Mer Estates, Inc. v. Bank of New York Mellon Corp., 137 So.3d 396 (Fla. 4th DCA 2014).

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


text:
    Kendrick LOVETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6184.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Kendrick Lovett, pro se.
   PER CURIAM.

Affirmed. See Howard v. State, 11 So.3d 967 (Fla. 2d DCA 2008); Tillman v. State, 900 So.2d 633 (Fla. 2d DCA 2005); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Dinkens v. State, 976 So.2d 660 (Fla. 1st DCA 2008); Luton v. State, 934 So.2d 7 (Fla. 3d DCA 2006).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Dale MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6187.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
   PER CURIAM.

Affirmed. See State v. Drawdy, 136 So.3d 1209, (Fla.2014); State v. Meshell, 2 So.3d 132 (Fla.2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006) (en banc).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Kevin HARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6205.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Kevin Harrell, pro se.
   PER CURIAM.

Affirmed. See State v. Dickey, 928 So.2d 1193 (Fla.2006); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Camille v. State, 803 So.2d 910 (Fla. 2d DCA 2002); White v. State, 935 So.2d 554 (Fla. 3d DCA 2006); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Douglas BOOKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6225.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.

      Douglas Booker, pro se.
   PER CURIAM.

Affirmed. See Fennell v. State, 544 So.2d 1017 (Fla.1989); Booker v. State, No. 2D13-11, 2013 WL 4750824, (Fla. 2d DCA 2013) (table decision); Harris v. State, 111 So.2d 994 (Fla. 2d DCA 2000); Marcado v. State, 735 So.2d 556 (Fla. 3d DCA 1999).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Fredie Drayon GOLD, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6230.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Fredie Drayon Gold, pro se.
   PER CURIAM.

Affirmed. See Moore v. State, 882 So.2d 977 (Fla.2004); Williams v. State, 51 So.3d 598 (Fla. 2d DCA 2011).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Philip MOSIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6238.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Philip Mosier, pro se.
   PER CURIAM.

Affirmed. See Mosier v. State, 113 So.3d 843 (Fla. 2d DCA 2013) (table decision); Mosier v. State, 60 So.3d 397 (Fla. 2d DCA 2011) (table decision); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); McNeil v. State, 993 So.2d 1030 (Fla. 2d DCA 2008); Sweet v. State, 987 So.2d 747 (Fla. 2d DCA 2008); Blocker v. State, 968 So.2d 686 (Fla. 2d DCA 2007); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Essie HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1018.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
   PER CURIAM.

Affirmed. See State v. Wayne, 531 So.2d 160 (Fla.1988); State v. Segarra, 388 So.2d 1017 (Fla.1980); Means v. State, 779 So.2d 282 (Fla. 2d DCA 1998); Ellis v. State, 406 So.2d 76 (Fla. 2d DCA 1981); McCaskill v. State, 728 So.2d 1183 (Fla. 5th DCA 1999).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    David HENSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-18.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    David Henson, pro se.
   PER CURIAM.

Affirmed. See Brooks v. State, 969 So.2d 238 (Fla.2007); Carpenter v. State, 884 So.2d 385 (Fla. 2d DCA 2004); Alcantara v. State, 39 So.3d 535 (Fla. 5th DCA 2010); Allen v. State, 976 So.2d 1189 (Fla. 5th DCA 2008); Williams v. State, 907 So.2d 1224 (Fla. 5th DCA 2005).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Richard LLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-25.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Richard Lloyd, pro se.
   PER CURIAM.

Affirmed. See Bolender v. State, 658 So.2d 82 (Fla.1995); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Julian Charke TARIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-28.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
   PER CURIAM.

Affirmed. See Ransone v. State, 48 So.3d 692 (Fla.2010); Mount v. State, 97 So.3d 951 (Fla. 5th DCA 2012); Toomer v. State, 895 So.2d 1256 (Fla. 1st DCA 2005); Teart v. State, 866 So.2d 145 (Fla. 1st DCA 2004); Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Tyrone D. RYNES, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-280.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
   PER CURIAM.

Affirmed. See Leeman v. State, 357 So.2d 703 (Fla.1978); 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); Mosely v. State, 688 So.2d 999 (Fla. 2d DCA 1997); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Budd v. State, 477 So.2d 52 (Fla. 2d DCA 1985); Foss v. State, 834 So.2d 404 (Fla. 5th DCA 2003); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002); Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Samuel JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-433.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
   PER CURIAM.

Affirmed. See Williams v. State, 707 So.2d 683 (Fla.1998); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Johnson v. State, 917 So.2d 1011 (Fla. 4th DCA 2006).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Genny SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-46.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
   PER CURIAM.

Affirmed. See Melvin v. State, 645 So.2d 448 (Fla.1994); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006) (en banc); Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003); Vidak v. State, 793 So.2d 27 (Fla. 2d DCA 2001); White v. State, 935 So.2d 554 (Fla. 3d DCA 2006); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Horace JOHNSON, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-50.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
   PER CURIAM.

Affirmed. See Melbourne v. State, 679 So.2d 759 (Fla.1996); Johnson v. State, 43 So.3d 701 (Fla. 2d DCA 2010) (table decision); Lawrence v. State, 801 So.2d 293 (Fla. 2d DCA 2001) (en banc); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000); Pruitt v. State, 801 So.2d 143 (Fla. 4th DCA 2001).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Michael E. GOGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-73.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Pleas v. State, 41 So.3d 980 (Fla. 1st DCA 2010); Lykins v. State, 894 So.2d 302 (Fla. 3d DCA 2005); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Thomas v. State, 778 So.2d 429 (Fla. 5th DCA 2001); Bloodworth v. State, 504 So.2d 495 (Fla. 1st DCA 1987).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Ned HANNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-79.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Ned Hanner, pro se.
   PER CURIAM.

Affirmed. See Hanner v. State, 124 So.3d 237 (Fla. 2d DCA 2013) (table decision); Harris v. State, 111 So.2d 994 (Fla. 2d DCA 2000).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Ronald IRELAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-80.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Ronald Ireland, pro se.
   PER CURIAM.

Affirmed. See State v. Mancino, 705 So.2d 1379 (Fla.1998); Wright v. State, 915 So.2d 781 (Fla. 2d DCA 2005); Goins v. State, 889 So.2d 918 (Fla. 2d DCA 2004); Labadie v. State, 840 So.2d 332 (Fla. 5th DCA 2003).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


author: KLINGENSMITH, J.

text:
    Deborah R. OLSON, Appellant, v. Daniel ROBBIE and Timothy H. Robbie, Appellees.
    No. 4D13-3223.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.

      Michael D. Begey of Rumberger, Kirk & Caldwell, Orlando, for appellant.

      James A. Burnham and E. Cole FitzGer-ald, III, of FitzGerald, Mayans & Cook, P.A., West Palm Beach, for appellees.
   KLINGENSMITH, J.

Appellant Deborah Olson (“Olson”), a resident of Minnesota, was sued by appel-lees Daniel Robbie and Timothy Robbie (“the Robbies”) for breach of contract. The parties are the children of Joe Robbie, founder and longtime owner of the Miami Dolphins. The Robbies alleged that the trial court had jurisdiction over Olson under Florida’s long-arm statute because Olson failed to perform acts that were required to be performed in Florida pursuant to a contract, and that Olson was engaged in activities within the State of Florida and had significant ties to the state. Olson moved to dismiss the complaint for lack of jurisdiction, which was denied by the trial court. Based on the law as applied to the facts of this case, we reverse.

To settle disputes about their father’s companies after his death, the siblings entered into a Shareholder Agreement (“Agreement”) for the Miami Sports Corporation (“MSC”), a Florida corporation that included Olson as a member of its Board of Directors. MSC owned 12.458% of the Dolphins and 100% of other subsidiary companies including Nelson Laboratories, Inc. (“Nelson Labs”), a South Dakota corporation. The Agreement also restructured Nelson Labs into two separate entities: Nelson Limited (a South Dakota limited partnership) and Nelson Management Corp. (a South Dakota corporation). Nelson Management owns a 1% interest in Nelson Limited, with MSC as the sole limited partner, owning the remaining 99% interest. Olson is the Director of Nelson Management, which is the managing partner of Nelson Limited. The terms of the Agreement includes a provision that it is to be “construed in accordance with and governed by the laws of the State of Florida.” The Agreement also provides: “All Directors shall have access to and share among themselves information related to MSC, Nelson, Nelson Limited, the Stadium Companies and the Partnership.”

In the spring of 2011, Nelson Limited entered into a contract with MWI Veterinary Supply to sell substantially all of its assets. As a result of the sale, the Rob-bies made multiple demands for information and documents. Olson claims these materials have either been produced or, alternatively, never existed in the first place. The Robbies then filed this suit, alleging that Olson breached the Agreement by refusing to produce information and financial documents related to the MWI sale, including Nelson’s books and records, which the Robbies (who are also MSC Directors) are entitled to receive. The Robbies also sought an order requiring Olson to produce all books and records concerning Nelson and its operations.

The trial court conducted an evidentiary hearing, pursuant to Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989), in order to resolve the jurisdictional issues. In an affidavit filed in support of her motion to dismiss, Olson alleged she has been a resident of Minnesota since 1979 and has not resided in Florida since 1974, she personally does not conduct regular business activities nor maintain any business purpose in Florida, she does not own any property in Florida, and she has been to Florida only a handful of times in the past ten years — most recently “roughly a year ago” — usually to visit friends. She also asserted that Nelson Limited owns no property and maintains no offices, operations, or employees in Florida, and its principal place of business and the location of its books and records is Sioux Falls, South Dakota. Further, she alleged that the Robbies played no role in the MWI sale, which did not take place in Florida. In her deposition, she conceded that she had previously attended MSC board meetings in Florida.

The Robbies allege that Florida is an appropriate forum due to Olson’s status as both a shareholder and a director of a Florida corporation (MSC) with significant assets in Florida. They also cite to Olson’s prior history of availing herself to Florida courts to pursue litigation relating to MSC-related disputes. Affidavits filed by Timothy Robbie and another sibling, Janet Robbie, also asserted that Olson had been a board member of MSC for twenty years, attended MSC shareholder and board meetings in Florida, and acted as MSC’s President and/or CEO in filing annual reports in Florida for fourteen years. They averred that Olson maintained significant ties to Florida as the co-trustee of a Florida trust established by their mother until the trust’s termination in 2011, including court appearances relating to the administration of their mother’s estate. Further, they claimed Olson executed the Agreement with the aid of Florida counsel, understanding that she was obligated to share information about Nelson in Florida, and that she historically provided this information in Florida.

The trial court denied Olson’s motion to dismiss based on discrepancies between the testimony of the parties, yet did not indicate which section of Florida’s long-arm statute, § 48.193, Fla. Stat. (2012), or what specific facts, supported the finding that Olson was subject to personal jurisdiction in Florida courts.

[T]he Florida Supreme Court [has] approved of a two-step analytical process for determining personal jurisdiction. The first step requires the trial court to determine whether sufficient facts have been alleged to bring the action within the ambit of Florida’s long-arm statute. If the long-arm statute applies, the second step requires the trial court to decide whether “minimum contacts” exist between the defendant and the forum state to satisfy due process. The due process analysis is “a more restrictive requirement” than the “broad grant of jurisdiction” under the long-arm statute and is governed by precedent from the Supreme Court of the United States interpreting the Due Process Clause ....

Marina Dodge, Inc. v. Quinn, 134 So.3d 1103, 1105-06 (Fla. 4th DCA 2014) (citations and footnote omitted).

Personal jurisdiction can exist in two forms: “specific,” in which the alleged activities or actions of the defendant are directly connected to the forum state, and “general,” in which the defendant’s connection with the forum state is so substantial that no specific or enumerated relationship between the alleged wrongful actions and the state is necessary.

Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 250 (Fla. 4th DCA 2011).

The standard of review for the issue of personal jurisdiction over a nonresident is de novo. Anthony v. Gary J. Rotella & Assocs., P.A., 906 So.2d 1205, 1207 (Fla. 4th DCA 2005). Therefore, we must first consider whether, under section 48.193(1)(g), there is specific personal jurisdiction over Olson because she allegedly breached an agreement that required her to perform duties in Florida. Under the long-arm statute, individuals submit themselves to the jurisdiction of Florida for any cause of action arising from a breach of contract for failure to “perform acts required by the contract to be performed in this state.” § 48.193(1)(g), Fla. Stat. (2012). It is the terms of the contract, not the familial relationship between these parties, that is the relevant consideration for determining whether Florida has jurisdiction over Olson under section 48.193(l)(g). This provision “must be strictly construed in order to guarantee compliance with due process requirements.” Cosmopolitan Health Spa, Inc. v. Health Indus., Inc., 362 So.2d 367, 368 (Fla. 4th DCA 1978); see also Classic Lines, Inc. v. Nat’l Coach Corp., 734 F.Supp. 471, 473 (S.D.Fla.1990) (“Florida Courts require substantial proof before they are willing to authorize in personam jurisdiction over a non-resident defendant under 48.193(1)(g).”).

The caselaw interpreting Section 48.193(l)(g), Fla. Stat., although scant, is sufficient to support the view that before in personam jurisdiction may attach over a defendant, proper allegations must be pled to show that the defendant failed to perform an act or acts whose performance was to be in Florida and that such breach formed the basis for the cause of action for which relief is sought by the plaintiff.

Cosmopolitan, 362 So.2d at 368 (emphasis added). In other words, “there must exist a duty to perform an act in Florida; a contractual duty to tender performance to a Florida resident is not in itself sufficient to satisfy the statute.” Posner v. Essex Ins. Co., 178 F.3d 1209, 1218 (11th Cir.1999) (emphasis supplied). It is not enough that a foreign defendant merely contract with a Florida resident, or that performance under the contract could have been made in Florida; rather, the contract itself must require performance in Florida in order to invoke Florida jurisdiction under section 48.193(l)(g). Travel Opportunities of Fort Lauderdale, Inc. v. Walter Karl List Mgmt., Inc., 726 So.2d 313, 314 (Fla. 4th DCA 1998).

Here, the Agreement clearly and unambiguously provided that “All Directors shall have access to and share among themselves information related to MSC, Nelson, Nelson Limited, the Stadium Companies and the Partnership.” This language of the contract, relied on by the Robbies to invoke jurisdiction, does not explicitly require Olson to perform any act in Florida whatsoever. In fact, any such sharing of information could be performed by Olson from any location at all, including either South Dakota, Minnesota, or Florida.

The Robbies’ complaint also demands information regarding Nelson Limited’s purchase by MWI — a sale of a company that had no offices, employees, assets, property, or records in Florida, and that did not occur in Florida. Because the terms of the Agreement do not clearly require performance in Florida, Olson’s alleged breach was not of an act that was “required by the contract to be performed in this state.” § 48.193(1)(g), Fla. Stat. (2012) (emphasis added). Therefore, long-arm jurisdiction cannot be properly invoked over her under this provision of the statute, regardless of whether or not she previously provided information about Nelson Labs to shareholders in Florida. See Hamilton v. Alexander Proudfoot Co. World Headquarters, 576 So.2d 1339, 1340 (Fla. 4th DCA 1991) (no basis for long-arm jurisdiction in suit for failure to return confidential documents where contract contained no mandate “that any material be returned to [the employer] in Florida.”); Classic Lines, 734 F.Supp. at 473-74 (no basis to invoke long-arm jurisdiction where no showing made that the contract for the purchase of buses imposed a duty on defendant “to deliver, or actually operate the buses in Florida”).

Because we find that there was no specific personal jurisdiction, we must next consider whether there is general personal jurisdiction over Olson under the long-arm statute. Section 48.193(2) provides that: “A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” § 48.193(2), Fla. Stat. (2012). “This court and other district courts have held ‘substantial and not isolated’ to mean ‘continuous and systematic general business contact’ with Florida.” Caiazzo, 73 So.3d at 250.

Florida courts have found continuous and systematic general business contacts ... where a nonresident defendant’s activities are extensive and pervasive, in that a significant portion of the defendant’s business operations or revenue derived from established commercial relationships in the state. Such contacts have also been found where the defendant continuously solicits and procures substantial sales in Florida. General jurisdiction requires far more wide-ranging contacts with the forum state than specific jurisdiction, and it is thus more difficult to establish. One reason for requiring a more rigorous showing to establish general jurisdiction is because jurisdiction under section 48.193(2) does not require that a lawsuit’s cause of action arise from activity within Florida, or that there be any connection between the claim and the defendant’s Florida activities.

Biloki v. Majestic Greeting Card Co., 33 So.3d 815, 820 (Fla. 4th DCA 2010) (citations and internal quotation marks omitted).

Here, the undisputed evidence does not support a finding of general jurisdiction under section 48.193(2). Olson has not been a Florida resident since 1974, owns no property here, and travels here only irregularly to visit friends. The factual discrepancies relied on by the trial court to deny the motion to dismiss pertain to matters that, under Florida law, are insufficient to establish long-arm jurisdiction. For example, Olson’s status as an MSC director, her filing of annual reports, or her service as trustee in a now-defunct Florida trust, are all insufficient to establish general personal jurisdiction in Florida. See Carter v. Estate of Rambo, 925 So.2d 353, 356 (Fla. 5th DCA 2006) (recognizing that “any activity in one’s capacity as a corporate officer or director is exempted from consideration in support of the exercise of long-arm jurisdiction over said officer or director,” and finding no basis for personal jurisdiction over the appellant solely because “he signed business reports as a managing member of an LLC in his representative capacity”); Doe v. Thompson, 620 So.2d 1004, 1006 (Fla.1993) (“While [a] Corporation, which operates businesses in Florida, could be haled into court because of its minimum contacts, its chief executive officer is not by virtue of his position subject to personal jurisdiction.”); Ace Investors, LLC v. Rubin, 494 Fed.Appx. 856, 859 (10th Cir.2012) (holding that the trial court could not rely on its specific jurisdiction over the appellee in her capacity as trustee to exercise jurisdiction over her in an unrelated proceeding). Therefore, even though Olson attended occasional MSC board meetings in Florida, this is insufficient, without more, to establish general jurisdiction over her.

Likewise, the mere fact that Olson previously availed herself of the Florida courts is insufficient where there was no information provided to the trial court regarding Olson’s choice of Florida as a forum, including whether Florida was a mandatory or permissive forum for any of those disputes, or whether she voluntarily and purposefully availed herself of Florida’s privileges and protections. See Smith Architectural Grp., Inc. v. Dehaan, 867 So.2d 434, 436 (Fla. 4th DCA 2004). On a related issue, the Robbies have not provided any legal authority to support their claim that Olson’s employment of Florida counsel to assist her in the execution of the contract was sufficient to invoke general jurisdiction over Olson.

In short, no evidence was presented to the trial court that Olson ever played a substantial part in the management of MSC in Florida, or that she purposely established minimum contacts within Florida. Because there was insufficient evidence showing that Olson engaged in any “continuous and systematic general business contact” with Florida, she cannot be subject to general personal jurisdiction in Florida. Caiazzo, 73 So.3d at 250. Therefore, we reverse the trial court’s order denying Olson’s motion to dismiss for lack of jurisdiction.

Reversed.

MAY and CIKLIN, JJ., concur.


author: CONNER, J.

text:
    Melissa KERSHAW, Appellant, v. Victor KERSHAW, Appellee.
    No. 4D13-3519.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.
    Brandy L. Brennan of J. Scott Gunn, P.A., Fort Lauderdale, for appellant.
    No brief filed on behalf of appellee.
   CONNER, J.

The mother appeals the trial court’s order denying her motion for temporary order permitting relocation and granting the father’s motion for return of child. We affirm the trial court’s order denying the mother’s motion for temporary order permitting relocation without discussion. We write to discuss the trial court’s order granting the father’s motion for return of child, which we also affirm.

In July, 2009, a final judgment was entered dissolving the marriage of the mother and the father. Part of the final judgment contained a parenting plan outlining the custody and responsibility of each parent for their son. The agreed upon plan was that the mother would have primary custody of the son, and the father would have visitations from morning to early evening two days every week and on a third day every other week. Also included in the parenting plan was that, if either party wished to relocate, the party must do so subject to the procedures set forth in section 61.13001, Florida Statutes (2018).

Between June and August 2013, the mother filed a motion for temporary order permitting relocation based on her move from Vero Beach to Deerfield Beach. Shortly thereafter, the father filed an emergency motion for return of child, alleging that the mother moved the son to Deerfield Beach without a court order allowing her to do so. In the motion, he alleged the mother was engaging in negligent behavior by unilaterally withholding timesharing from him and unilaterally enrolling the child in school outside of Indian River County. He requested that the child be returned to Indian River County and that he have sole time sharing with the child until a protective plan could be put in place to address the mother’s actions. A hearing was held on both motions. The trial court denied the mother’s motion for temporary order permitting relocation, and granted the father’s motion for return of the child.

On appeal, the mother argues that the trial court erred in granting the father’s motion because the trial court’s order changed the parenting plan that was currently in place, and the father neither requested, nor did the trial court make, findings of fact necessary for a change in the parenting plan.

Regarding the father’s motion, the trial court ruled:

The [father]’s Motion for Return of Custody is hereby granted. The minor child shall be returned to Indian River County not later than Sunday, September 1, 2013 and enrolled in the Indian River County School District on September 3, 2013.

We do not construe the trial court’s order as changing the parenting plan, but instead, requiring that the mother return the child to Indian River County, consistent with the parenting plan previously ordered. Therefore, there was no error in the trial court’s order, and we affirm.

Affirmed.

STEVENSON and TAYLOR, JJ„ concur.


text:
    Hever RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4643.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.

      Hever Ramos, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Hever Ramos appeals the summary denial of a rule 3.850 motion. We reverse and remand to allow Ramos an opportunity to amend one claim pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), and Alcorn v. State, 121 So.3d 419 (Fla.2013).

In claim 5 of Ramos’ supplemental rule 3.850 motion, he alleged that his attorney provided ineffective assistance that caused him to reject a favorable plea offer. Ramos alleged that counsel did not explain the sentence structure and consequences of rejecting the state’s plea offer. According to Ramos, counsel did not tell him that he could receive consecutive sentences and that the sexual battery charges in counts I and III would be reclassified to first degree felonies because multiple perpetrators were involved. Ramos alleged that this prevented him from making an informed decision about the state’s offer. Ramos also said that counsel misadvised him that the victim was not willing to testify because counsel told Ramos that the victim did not want to go to trial and wanted defense counsel to persuade him to accept the plea offer. Ramos alleged that if he had been adequately informed, he would have accepted the state’s plea offer.

Ramos has not shown that his attorney gave him any misadvice. The victim may in fact have been unavailable or unwilling to testify when the initial offer was made. But, in rejecting the offer, Ramos ran the risk that circumstances could change.

Counsel may be ineffective for failing to advise a defendant about the maximum possible penalty when conveying a plea offer. Alcorn, 121 So.3d at 426 (“No party disputes that counsel’s failure to advise a defendant of his or her exposure to an enhanced life sentence under Florida’s HFO sentencing statute during plea negotiations amounts to deficient performance.”); see also Lester v. State, 15 So.3d 728, 732 (Fla. 4th DCA 2009); McDowell v. State, 905 So.2d 999 (Fla. 4th DCA 2005); Pennington v. State, 34 So.3d 151, 155 (Fla. 1st DCA 2010); Williams v. State, 924 So.2d 897, 898-99 (Fla. 1st DCA 2006).

Without Ramos stating what he thought the maximum sentence could be, there may be no way to evaluate the objective reasonableness of his claim that he would have accepted the fifteen-year offer if counsel told him he could receive up to sixty-five years for the offenses in this case. Ramos may simply have been willing to risk whether the victim would appear for trial.

His claim is also facially insufficient under Alcorn because he does not state that the prosecutor would not have withdrawn the offer and that the court would have accepted it. Alcorn, 121 So.3d at 422.

On appeal, the state agrees that he should have been given leave to amend this claim.

Accordingly, we reverse and remand for the trial court to allow Ramos an opportunity to correct the pleading deficiencies in claim 5 if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(3). We affirm the summary denial of the remaining claims.

Affirmed in part, reversed in part, and remanded.

TAYLOR, CIKLIN and LEVINE, JJ., concur.


text:
    Sharon R. WHITE n/k/a Sharon R. Bunn, Appellant, v. Stephen F. WHITE, Appellee.
    No. 4D13-1507.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.

      Michael J. Ryan, North Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

Former wife appeals the trial court’s order denying her motion to enter final judgment for money due and overruling her exceptions to the trial court’s findings regarding the final judgment for the dissolution of marriage. We affirm, without discussion, the trial court’s order denying the former wife’s request for prejudgment interest and attorney’s fees, but reverse the trial court’s order requiring the former wife to pay her credit card debt before the former husband would be required to reimburse her.

The dissolution of marriage agreement contained the following language:

8. ALLOCATION OF DEBTS. Husband will assume all wife’s credit card debt for the following cards and balances. Husband will not be responsible for any additional charges placed on these cards by the wife.

After the former husband failed to make the credit card payments, the former wife filed a motion to enter final judgment for money due, requesting that, among other things, the former husband pay her the amount owed on her credit cards. The trial court denied the former wife’s motion.

“The interpretation of the wording and meaning of the marital settlement agreements, as incorporated into the final judgment, is subject to de novo review.” Kiprp v. Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003) (quoting McIlmoil v. McIlmoil, 784 So.2d 557, 561 (Fla. 1st DCA 2001)).

“It is well settled that a marital settlement agreement is subject to interpretation like any other contract.” Levitt v. Levitt, 699 So.2d 755, 756 (Fla. 4th DCA 1997). It is also well settled that

[a]s with any contract, “[wjhere the terms of a marital settlement agreement are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document. It is only when a term in a marital settlement agreement is ambiguous or unclear that the trial court may consider extrinsic evidence as well as the parties’ interpretation of the contract to explain or clarify the language.”

Jones v. Treasure, 984 So.2d 634, 636 (Fla. 4th DCA 2008) (quoting Levitt, 699 So.2d at 756).

We have also held that “conditions precedent are not favored, and the courts will not construe provisions to be such, unless required to do so by plain, unambiguous language or by necessary implication.” Reilly v. Reilly, 94 So.3d 693, 697 (Fla. 4th DCA 2012) (citing 17A Am.Jur.2d Contracts § 471 (1991)).

Since the terms of the marital settlement agreement were clear and unambiguous, and there is no language requiring, or even implying, that the former wife would first have to repay her credit card debts before the former husband be required to reimburse her, the trial court erred by ordering such.

We therefore reverse and remand with instructions that the trial court enter an order granting the former wife’s motion to the extent that the former husband shall be required to pay the former wife’s credit card debt consistent with this opinion and the marital settlement agreement as incorporated into the final judgment.

Affirmed in part, reversed in part.

STEVENSON, TAYLOR and CONNER, JJ., concur.


author: MAY, J.

text:
    A.B., A CHILD, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1729.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

A juvenile appeals a finding of guilt and disposition order on two counts of petit theft. He argues the trial court erred in denying his motion for judgment of dismissal. We agree and reverse.

The theft occurred at a park where the victims were playing basketball. They placed their wallets and cell phones on the ground next to the basketball hoop. The juvenile was near the basketball court, as were other people.

When the basketball went out of bounds, one of the victims chased after it. When he turned around, he saw the juvenile and the juvenile’s friend running from the area where the victims left their cell phones and wallets. The cell phones and wallets were gone.

The State filed a petition for delinquency, charging the juvenile with two counts of grand theft of property valued between $300 and $5,000. The case proceeded to a non-jury trial.

A police officer testified that she questioned the juvenile about two weeks after the theft. Prior to being formally Miran-dized, he spontaneously said, “I can’t believe I am going down for this alone.” After waiving his Miranda rights, he told the officer that he went to the park with a friend to play basketball. His friend said, “When I run, you run.” Moments later, he “followed [his friend] blindly, leaving his [own] shoes behind.” He did not know why they were running. They jumped a fence and got into a nearby car belonging to the juvenile’s brother.

Both victims testified concerning the value of their belongings.

When the State rested, the juvenile moved for a judgment of dismissal. Counsel argued that the State failed to prove that the juvenile took the items, and that the victims’ testimony concerning the value of their belongings was insufficient to prove their actual value. The trial court recognized it was a circumstantial-evidence case and that it needed to be mindful of the accelerated depreciation of electronics. The court found that the evidence, viewed in the light most favorable to the State, was sufficient and denied the motion.

The defense rested without putting on any evidence, and renewed its motion for judgment of dismissal. The court granted the motion in part as to count one, finding that the State failed to adequately prove the value of one of the phones. The court reduced the charge from grand theft to petit theft. The court denied the motion as to count two.

The court then found the juvenile guilty of two counts of petit theft, finding insufficient evidence to support the value of the second phone. The court adjudicated the juvenile delinquent and placed him on probation. From this disposition, the juvenile has appealed.

The juvenile continues to argue that the trial court erred in denying his motion for judgment of dismissal because the State’s circumstantial evidence failed to rebut his hypothesis of innocence. The State admits that the evidence against the juvenile was “not overwhelming,” but argues the evidence was sufficient to submit the case to the trier of fact.

“We apply a de novo standard of review for a motion for judgment of dismissal.” Q.J.L. v. State, 120 So.3d 150, 153 (Fla. 4th DCA 2013) (quoting J.T. v. State, 47 So.3d 934, 935-36 (Fla. 4th DCA 2010)). “A motion for judgment of dismissal should be granted in a circumstantial evidence case if the State fails to present evidence from which the judge can exclude every reasonable hypothesis except that of guilt.” D.F.J. v. State, 60 So.3d 1183, 1184 (Fla. 4th DCA 2011).

No one disputes the circumstantial nature of the case. The State charged the juvenile under a principal theory, which required the State to prove beyond a reasonable doubt that the juvenile intended that the crimes be committed and did some act to assist in committing the crimes. A.S.F. v. State, 70 So.3d 754, 757 (Fla. 4th DCA 2011).

“Importantly, this court has stressed that ‘[m]ere knowledge that an offense is being committed, mere presence at the scene, and even a display of questionable behavior after the fact, are not, alone, sufficient to establish participation.’ ” T.W. v. State, 98 So.3d 238, 242 (Fla. 4th DCA 2012) (quoting Theophile v. State, 78 So.3d 574, 578 (Fla. 4th DCA 2011)). Here, the State established only the juvenile’s presence, questionable behavior, and a comment that did not amount to an admission. See Fiske v. State, 366 So.2d 423, 424 (Fla.1978) (holding that statements made when confronted by law enforcement that are “ambiguous and susceptible of innocent explanation as well as being indicative of criminal knowledge” must be resolved in favor of the accused).

The State relies on Hill v. State, 958 So.2d 549 (Fla. 4th DCA 2007), but we find it easily distinguishable. There, the defendant witnessed his cousin commit a robbery, then assisted commission of the crime by driving the get-away car at the instruction of his cousin. There is no evidence in this case to establish the juvenile’s participation in, knowledge of, or assistance in the commission of a crime.

There was no evidence that either juvenile stole the items or assisted anyone in doing so. The State proved the juvenile: (1) was in the area where the crime took place; (2) was seen running near where a crime took place; and (3) said, “I can’t believe I am going down for this alone.” These three facts fail to prove that the juvenile committed, or assisted in committing, a crime.

The State’s evidence simply fell short. The trial court should have granted the juvenile’s motion for judgment of dismissal. We therefore reverse and remand the case for the trial court to vacate the finding of guilt and disposition order.

Reversed and Remanded.

CIKLIN and LEVINE, JJ., concur.


author: LEVINE, J.

text:
    Abraham TOUBAIL, Appellant, v. Kathryn WHITE, Appellee.
    No. 4D13-2548.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.

      Michael K. Spotts, Stuart, for appellant.
    No appearance for appellee.
   LEVINE, J.

Appellant Abraham Toubail appeals the trial court’s final judgment of injunction for protection against dating violence entered in favor of appellee Kathryn White. Because the evidence failed to establish that White has an objectively reasonable fear of imminent harm as required to support issuance of the injunction, we reverse.

According to the testimony of White, on May 26, 2013, the parties — who had been dating for approximately three months— were at a billiards hall when White made a comment that angered Toubail. He yelled at her and told her they were leaving. Once inside his car, Toubail continued yelling at her and started driving before she could exit. She repeatedly asked him to let her out, but he kept driving recklessly and cursed at her. Once at his house, she went inside and retrieved her cell phone. After she dialed 911, he grabbed her arm and took the phone away. She went across the street and had a neighbor call the police on her behalf. The police did not arrest Toubail for battery, assault, or any other violent crime.

About one week later, White contacted Toubail to exchange personal belongings they had at each other’s separate residences. She met him alone for the exchange, and he did not threaten, assault, or take any physical action against her in any way. Then on June 6, 2013, she obtained an ex parte temporary injunction.

On June 14, 2013, the trial court held a hearing to determine whether the injunction should be extended or made permanent. White testified that she felt she needed the injunction because her friends in law enforcement told her it was “better to be safe than sorry,” and that they “wouldn’t let up” about getting an injunction. White conceded that prior to May 26th, there was no history of violence in their relationship and that since May 26th, Toubail had not threatened, assaulted, or battered her in any way. White never testified to being in fear of Toubail, aside from the incident on May 26th. At the conclusion of the hearing, the court entered a final judgment of injunction for protection against dating violence.

A final judgment of injunction against dating violence is reviewed for competent, substantial evidence. See Schutt v. Alfred, 130 So.3d 772, 774 (Fla. 3d DCA 2014). “[T]he trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.” Gill v. Gill, 50 So.3d 772, 774 (Fla. 2d DCA 2010) (citation omitted). An injunction may be sought by

[a]ny person who is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence, or any person who has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence.

§ 784.046(2)(b), Fla. Stat. (2012) (emphasis added).

The critical issue for our consideration is whether there was competent, substantial evidence to support a finding that White was in “imminent danger” of becoming a victim of another act of dating violence or whether there was competent, substantial evidence to support a finding that White had “reasonable cause to believe” she was in imminent danger of becoming a victim of dating violence. We need not address whether there was competent, substantial evidence of an act of “dating violence.”

In this case, there was no testimony of any prior incidents of violence or threats by Toubail. Approximately one week after the incident, White met Toubail to exchange belongings, and he was not violent or threatening in any way. Further, she did not testify that she feared meeting him or was fearful since. When the trial court asked why she decided to petition for an injunction nearly two weeks after the incident, White responded because her friends told her it was “better to be safe than sorry” and they “wouldn’t let up” until she sought the injunction.

White’s testimony lacks any clear indication that she reasonably believed that she was in “imminent danger” of an act of violence, as required by the statute. Thus, in the absence of competent, substantial evidence to meet the requirements of section 784.046, the trial court was not permitted to enter a permanent injunction for protection from dating violence against Toubail under these facts. § 784.046(2)(b), Fla. Stat. (2012); Gill, 50 So.3d at 774. Consequently, we reverse the judgment and remand for the trial court to vacate the injunction.

Reversed and remanded with instructions to vacate the injunction.

MAY and CIKLIN, JJ., concur.

      . The trial court found that White was the victim of "kidnapping.” Even if this finding lacked competent, substantial evidence, this court — applying the tipsy coachman doctrine — could find competent, substantial evidence to support a finding that White was the victim of "assault,” "battery,” and/or "false imprisonment.” See § 784.046(l)(a), Fla. Stat. (2012).


author: DAMOORGIAN, C.J.

text:
    Celestor Ortez GREGORY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-292.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Celestor Ortez Gregory appeals his judgment and sentences for robbery with a weapon and battery. Appellant argues that the trial court erred in its instructions to the jury on self-defense and by denying his motion for judgment of acquittal on the robbery count. Appellant also argues that his convictions for robbery with a weapon and battery violate double jeopardy. We find no error based on double jeopardy or the denial of the judgment of acquittal. However, we reverse because the trial court erred by instructing the jury on the forcible-felony exception to self-defense.

The following facts are relevant to this appeal. Appellant walked into a liquor store, took a bottle of vodka, and left without paying for it. The owner followed Appellant to his vehicle and a physical altercation ensued. Appellant was arrested and the case proceeded to trial on charges for robbery with a deadly weapon involving an aggravated battery, aggravated battery, and resisting a merchant.

At trial, the owner testified that he asked Appellant to stop as he followed him into the parking lot. However, Appellant “took off running” and got into his car. The owner noticed that the window was down and reached inside to remove the key from the ignition. By the time Appellant started to accelerate, two thirds of the owner’s body was inside the car window. The owner locked his arm into the steering wheel to resist Appellant’s efforts to leave the parking lot, forcing Appellant to steer the car into a curb.

According to the owner, Appellant began hitting him, cursing at him, and threatening to kill him. Appellant demanded that the owner get out of his ear as the owner continued to try to remove the key from the ignition. Appellant placed the owner in a headlock and the owner bit Appellant on the arm. Ultimately, Appellant hit the owner in the head with the stolen bottle of vodka. The bottle broke and Appellant motioned as if he was going to hit the owner with the jagged glass. The owner put his hands up as if to surrender and got out of Appellant’s car. Appellant drove away before the police arrived. The owner admitted that he does not dress in a uniform for work. Although he asked Appellant to stop as Appellant left the store with the stolen merchandise, the owner never verbally identified himself to Appellant as the owner of the liquor store.

The investigating detective testified that he located and arrested Appellant three or four days after the crime occurred. Appellant’s taped interview was entered in evidence at trial. During the interview, Appellant admitted that he stole a bottle of vodka from the liquor store and got into an altercation with the owner in the parking lot. Appellant told the detective that he did not hear anyone ask him to stop as he left the store and he panicked when the owner came through his car window. Appellant confessed that he struck the owner in the head with the bottle but maintained that he was defending himself and did not intend to harm the owner.

At the close of the evidence, Appellant moved for a judgment of acquittal. The trial court granted the motion as to resisting a merchant but denied the motion as to the charges for robbery with a deadly weapon and aggravated battery.

After closing arguments, the court instructed the jury on the substantive offenses of robbery with a deadly weapon and aggravated battery, as well as the lesser-included offenses of theft and battery. The court also gave the following self-defense instruction:

A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent: (1) imminent death or great bodily harm to himself; or (2) the imminent commission of burglary against himself or another. However, the use of deadly force is not justifiable if you find: (1) [the defendant] was attempting to commit, committing or escaping after the commission of a robbery; or (2) [the defendant] initially provoked the use of force against himself unless: (a) the force asserted against the [sic] the force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger other than using deadly force on [the owner]; (b) in good faith, the defendant withdrew from physical contact with [the owner] and clearly indicated to [the owner] that he wanted to withdraw and stop the use of deadly force but [the owner] continued or resumed the use of force,

(emphasis added). The court also stated:

If the defendant was not engaged in an unlawful activity and was attacked in any place where he had the right to be, he had no duty to retreat and the right to stand his ground and meet force with force including deadly force [sic] could be reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

(emphasis added). Appellant did not object to any of the jury instructions. The jury found him guilty of robbery with a weapon and battery. This appeal follows.

Appellant raises two different challenges to the trial court’s self-defense instructions. “ ‘Generally speaking, the standard of review for jury instructions is abuse of discretion.’ ” Krause v. State, 98 So.3d 71, 73 (Fla. 4th DCA 2012) (quoting Lewis v. State, 22 So.3d 753, 758 (Fla. 4th DCA 2009)). However, because Appellant failed to preserve his challenges to the self-defense instructions by way of a timely, specific objection, they must rise to the level of fundamental error to allow for their review. See id. “Fundamental error is error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ An erroneous instruction constitutes fundamental error if it negates the defendant’s sole defense.” Id. (citations omitted).

The Forcible-Felony Exception

Appellant contends that it was improper for the court to instruct the jury on the forcible-felony exception because it negated his self-defense claim. We agree.

The instruction on the forcible-felony exception is derived from section 776.041, Florida Statutes (2010), which provides that a defendant is not justified in using force against the victim if the defendant “[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony ....” § 776.041(1), Fla. Stat.; see also Fla. Std. Jury Instr. (Crim.) 3.6(f). This section

“does not apply when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense.” The statute does apply, however, “where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony.”

Shepard v. Crosby, 916 So.2d 861, 864 (Fla. 4th DCA 2005) (second emphasis added) (citations omitted); see also Martinez v. State, 981 So.2d 449, 454 (Fla.2008) (“[F]or the forcible-felony instruction to apply, there must be an independent forcible felony other than the one which the defendant claims he or she committed in self-defense”). When a defendant charged with multiple crimes claims self-defense as to each offense, the forcible-felony instruction is improper because there is no independent forcible felony available and the instruction negates the defendant’s self-defense claim. Furney v. State, 115 So.3d 1095, 1098 (Fla. 4th DCA 2013).

In this case, the trial court gave the following instruction on the forcible-felony exception:

the use of deadly force is not justifiable if you find: (1) [the defendant] was attempting to commit, committing or escaping after the commission of a robbery

According to the State, the robbery was the independent forcible felony that permitted the instruction. However, the State’s argument ignores the fact that Appellant claimed self-defense as to both the robbery and the battery.

Appellant’s entire defense was that he used force against the owner because Appellant reasonably believed that he was under attack when the owner dove into his car window. According to Appellant, the theft only escalated into a robbery because Appellant was forced to defend himself against the owner. Likewise, the battery only occurred because Appellant was defending himself against the owner. Since Appellant claimed self-defense as to both the robbery and the battery, there was no independent forcible felony available to trigger the application of the forcible-felony exception. See id. at 1096, 1098 (reversing appellant’s convictions for aggravated battery and aggravated assault because appellant “was not charged with engaging in another separate forcible felony while allegedly committing the charged offenses, all of which he argued he committed in self-defense”). Accordingly, the trial court erred in giving the instruction on the forcible-felony exception. We next consider whether this error was fundamental.

“The erroneous reading of [the forcible-felony] instruction constitutes fundamental error only when it deprives the defendant of a fair trial.” Martinez, 981 So.2d at 457. The following factors are instructive when determining whether fundamental error occurred in this context: (1) whether self-defense is the defendant’s sole defense; (2) whether the defendant’s self-defense claim is a weak defense; and (3) whether the state relied on the erroneous instruction during closing. See, e.g., id. at 455-57 (erroneous reading of forcible-felony instruction did not deprive defendant of a fair trial because self-defense was not defendant’s only defense strategy and defendant’s self-defense claim was “extremely weak”); Furney, 115 So.3d at 1097-98 (erroneous reading of forcible-felony instruction constituted fundamental error because defendant’s sole defense as to each of his charges was self-defense and the state relied on the forcible-felony exception during closing); Clark v. State, 23 So.3d 1213, 1215 (Fla. 4th DCA 2009) (“In reviewing the issue after Martinez, this court has found that the error is not fundamental where the State did not rely on the erroneous instruction in closing argument, and the defendant was not deprived of a fair trial by the erroneous instruction.”).

Applying these factors to the facts of this case leads us to conclude that the error was fundamental. First, self-defense was Appellant’s only defense strategy. Second, Appellant’s self-defense claim was not extremely weak. Based on the evidence supporting Appellant’s contention that he did not know the victim was the owner of the store, the jury could reasonably conclude that Appellant believed he was being randomly attacked and that he responded with force to protect himself and his vehicle. Finally, the state relied on the forcible-felony exception during closing to argue that Appellant could not possibly have been acting in self-defense.

The Duty to Retreat Instruction

Appellant also asserts that the trial court provided inconsistent instructions on Appellant’s duty to retreat based on the First District’s recent decision in Floyd v. State, 2014 WL 30573, 39 Fla. L. Weekly D76 (Fla. 2d DCA Jan. 3, 2014). Because we conclude that the trial court committed fundamental error by giving the forcible-felony instruction, we need not consider the application of Floyd to the trial court’s instruction on the duty to retreat.

Accordingly, we reverse Appellant’s convictions based on the erroneous instruction on the forcible-felony exception and remand for a new trial.

Reversed and Remanded for New Trial.

WARNER and KLINGENSMITH, JJ., concur.