author: LOGUE, J.

text:
    Michael DUGGINS, Petitioner/Cross-Respondent, v. The STATE of Florida, Respondent/Cross-Petitioner.
    No. 3D14-1871.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2014.

      Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for petitioner/cross-respondent.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for respondent/cross-petitioner.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   LOGUE, J.

This case comes before us in the unusual posture in which both the defendant, Michael Duggins, and the State petition for mandamus to require the trial court to rule on Duggins’s pending motions to suppress. We grant Duggins’s petition.

Duggins was charged in November 2012 with aggravated assault and possession of a firearm by a convicted felon. He filed two separate motions to suppress physical evidence. The trial court conducted an evidentiary hearing on the motions on June 23, 2014. During the hearing, Dug-gins’s counsel advised the court that Dug-gins has been incarcerated for over 600 days awaiting trial. At the conclusion of the hearing, the court indicated that it would issue an order ruling on the motions after the testimony was transcribed. The transcript was filed on July 16, 2014, on which date the court advised the parties that its order on the suppression motions would be issued by August 20, 2014.

On July 28, 2014, after the suppression hearing had been fully concluded and the hearing transcript filed, but before the court had issued its rulings on the motions, Duggins filed a demand for a speedy trial. In response, the trial court immediately entered an order declining to rule on the pending motions concluding that Duggins, by demanding a speedy trial, constructively abandoned them. The trial court set the trial to commence on August 5, 2014, leaving the motions to suppress unresolved. These proceedings followed.

“Where a trial court’s refusal to rule has no lawful basis, mandamus is the appropriate remedy.” Quintana v. Barad, 528 So.2d 1300, 1301 (Fla. 3d DCA 1988); see also SR Acquisitions-Florida City, LLC v. San Remo Homes at Florida City, LLC, 78 So.3d 636, 638 (Fla. 3d DCA 2011) (“[M]andamus is the proper remedy to compel a court to exercise its discretion and decide a cause, where there is no valid reason to reserve ruling on the matter.”) (citation omitted); Flagship Nat’l Bank of Miami v. Testa, 429 So.2d 69, 70 (Fla. 3d DCA 1983) (“[Wjhile a judge may not be told ahead of time how to rule, mandamus lies to require that he rule one way or the other, if there is no justification that the ruling be withheld.”).

Here, the trial court’s refusal to rule had no lawful basis. Both the motion to suppress and the demand for speedy trial are vehicles to secure a defendant’s constitutional rights. The motion to suppress sounds in the constitutional right to be free from “unreasonable searches and seizures.” U.S. Const, amend. IV & XIV; Fla. Const, art. 1, § 12. The demand for a speedy trial sounds in the constitutional right to a “speedy and public trial.” U.S. Const, amend. VI & XIV; Fla. Const, art. 1, § 16(a). A person does not ordinarily abandon the right to seek suppression of evidence unlawfully seized merely by demanding a speedy trial.

Indeed, the Florida Supreme Court has made clear that a speedy trial demand can be compatible with a pending motion to suppress. State v. Embry, 322 So.2d 515, 518 (Fla.1975) (“[T]he mere filing of a motion to suppress is not tantamount to a finding of law that the speedy trial deman-der does not have a bona fide desire to obtain trial, that he is not prepared and will not be prepared for trial.”); see also Williams v. State, 548 So.2d 898, 899 (Fla. 4th DCA 1989) (holding a trial court erred in determining that a motion to suppress was waived by a speedy trial demand).

Nor are we persuaded by the trial court’s justification for its action. The trial court explained that “the defendant who files a speedy trial demand says that he is ready for trial now; that nothing remains to be done prior to the inception of trial; that all conditions prevenient to the commencement of trial have been satisfied.” In the first place, this argument overlooks the fact that nothing remained for Duggins to do regarding the pending motions to suppress. The motions were timely filed; a full evidentiary hearing had been conducted; the transcript had, at the court’s request, been ordered and received; and all that remained was for the trial court to issue rulings on the motions.

In fact, the trial court had time to issue its rulings on the schedule it had established and still set trial to commence within the time required under Florida Rule of Criminal Procedure 3.191. The filing of a demand for speedy trial under rule 3.191(g) requires the trial court to hold a calendar call within five days of the demand, and to schedule the trial no sooner than five days nor later than forty-five days from the date of the hearing. See Fla. R. Crim. P. 3.191(b). In the instant case, Duggins filed his demand on July 28th. Under the rule, if the court held a calendar call the very same day the demand was filed, it could have set the trial as early as August 4th and as late as September 11th (the later of which would have been more than three weeks after the August 20th date on which the court anticipated issuing its rulings on the pending motions to suppress). Instead of setting the case for trial in late August or early September (which would have been within the forty-five-day window but after the anticipated ruling date of August 20th), the trial court chose to set the trial for August 5th, a mere six business days following the date of the filing of the demand.

Both Florida Rule of Criminal Procedure 3.190(g), governing motions to suppress, and rule 3.191, governing demands for speedy trial, provide the trial courts leeway, within specified limits, to deal with timing issues that may arise in regards to these matters. For example, the remedy for a defendant who files a spurious speedy trial demand is to strike the demand (rather than deeming a pending motion to suppress abandoned). See Fla. R. Crim. P. 3.191(g) (“A demand filed by an accused who has not diligently investigated the case or is not timely prepared for trial shall be stricken as invalid on motion of the prosecuting attorney.”). Further, the trial court may order an extension of the speedy trial time periods either upon stipulation of the parties or, under the proper circumstances, upon the court’s own discretion. See Fla. R. Crim. P. 3.191(i) & (1). The rules, read together, cannot be reconciled with the proposition that a party automatically abandons a pending motion to suppress, for which a hearing has already been conducted, and which only awaits a ruling by the court, merely by filing a demand for speedy trial.

In conclusion, because the trial court’s refusal to rule had no lawful basis, we quash the trial court’s order, lift the stay, and direct the trial court to rule on the merits of the pending motions to suppress. We deny the State’s petition as moot. Because we are confident that the trial court will comply with the letter and spirit of this decision, we withhold formal issuance of the writ of mandamus.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kent Michael SCHEPMAN, Appellant, v. STATE of Florida, Appellee. and James Victor Asbury, Appellant, v. State of Florida, Appellee.
    Nos. 5D13-2290, 5B13-2813.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellees.
   PER CURIAM.

Co-defendants Kent Schepman and James Asbury (collectively, “Defendants”) appeal their convictions and sentences for principal to aggravated assault with a firearm, raising the same issue on appeal. They argue that the trial court committed fundamental error by giving a jury instruction that allowed the jury to find them guilty if they threatened one victim and caused fear in another. While the instruction was erroneous, the error was not fundamental because the threats and resulting fear related to both victims. Accordingly, we affirm because the error did not reach down into the validity of the trial to the extent that a guilty verdict could not have been obtained without the assistance of the alleged error.

Charging Document

Defendants were charged together by information as principals to aggravated assault with a firearm, as follows:

JAMES VICTOR ASBURY ... and KENT MICHAEL SCHEPMAN ... did unlawfully and intentionally threaten by word or act to do violence to the person of DANIEL ALDERSON or JEANEAN BIGOGNO or both, coupled with an apparent ability to carry out said threat, and utilized a deadly weapon, to wit: a firearm, without the intent to kill, and did an act or acts which created a well-founded fear in DANIEL ALDERSON or JEANEAN BIGOGNO or both that such violence was imminent and during the course of the commission of the offense KENT MICHAEL SCHEPMAN ... actually possessed and discharged a “firearm” ....

Relevant Trial Testimony

Defendants were tried together. Daniel Alderson testified that in 2012, he, his ex-wife, Jeanean Bigogno, their teenage daughter, and their three dogs moved into a home in Umatilla, Florida, located next door to Asbury. After they cleaned up the yard, they had a problem with feral cats coming into the yard and attacking their small dogs (two dachshunds and a pug). The cats also caused their yard and home to become infested with fleas. The cats seemed to be coming from Asbury’s yard. Alderson obtained a trap from Marion County Animal Services and began trapping the cats. After they trapped the first cat, Asbury looked at it and said that it was not his cat. He told Alderson to let him know if they continued to have problems. Alderson trapped about ten more cats over the next few weeks.

On October 16, 2012, Alderson called Animal Services and asked them to pick up another cat in the trap. He was painting his back porch when he heard voices and banging noises outside. He peeked out the window and saw Asbury hollering and banging on metal. Alderson could not make out all of the words, but he could discern that Asbury wanted his cat and was trying to get it. After Bigogno told Alderson what she had heard, Alderson called the sheriffs non-emergency phone number to alert the sheriffs department of the situation. He did not want anything to happen to the Animal Services employee when she came to pick up the trapped cat.

After Alderson hung up, he and Bigogno continued listening to Asbury, who became increasingly agitated, saying he wanted his cat. Then Asbury said he was going to get his gun and left on his scooter. A few minutes later, Alderson heard more voices coming from Asbury’s property. He heard someone say, “I’m going to get your dogs. I’m gonna get you. I’m gonna kill you. I’m gonna kill you all.” Asbury was screaming loudly. Then Alderson heard a single gunshot and called 911.

The State published the 911 call. Aider-son told the operator, “There’s a whole bunch of shots going off right now outside of our house.” Alderson and Bigogno could not see where the shots were going because they were inside their home listening.

OPERATOR: You heard approximately six shots from the neighbor’s house?
MR. ALDERSON: Yes, absolutely, and they were hooting and hollering about how they were going to get everybody and they’re going to go get a gun and they’re going to shoot everybody and they’re going to kill everybody and if they can’t get their cat, they’re going to kill everybody and hollering and stuff like that, so — and then the shots are already coming out, so I think we’re about to be dead so I think that someone should come here.
OPERATOR: Okay. Can you see where they’re at now?
MR. ALDERSON: I’m afraid to. I mean, we’re sitting in the living room and that’s about 30 feet away from the back door. We don’t go any closer.
OPERATOR: And you cannot see what they are doing?
MR. ALDERSON: Not at this point, no. And I’m not going to go and look either. But with the threats that they yelled, the kind of threat that they yelled and this has been going on, now, for about a good 20 minutes or so and then with the gunshots going off, I think that’s—
MR. ALDERSON: ... You have to excuse me. I’m a little bit rattled. I’ve never had this happen.
OPERATOR: And they were shooting as I was talking to you, correct?
MR. ALDERSON: Did you hear them, because yes—
OPERATOR: I heard something that went pow, pow, pow, like that.
MR. ALDERSON: That was it.
MR. ALDERSON: I hate to ask this question because I know you probably don’t know, but how long?
OPERATOR: Okay. They’re coming to you as fast as they can. I really don’t— can’t advise.
OPERATOR: Okay. Can you lock your doors?
MR. ALDERSON: I’m kind of afraid to go back there because it’s just — I know, so I don’t — I know the front door’s locked but the back door’s not.
MR. ALDERSON: He says he needs more gunpowder?
MS. BIGOGNO: Yes.
MR. ALDERSON: Well, my ex-wife just told me that she was listening by the kitchen and she heard him say he needs more gunpowder.

Police arrived and the call ended.

When he heard the first gunshot, Aider-son was scared for his life and his ex-wife’s life. When he heard the second gunshot, he jumped. “It was loud. And I was pretty sure at that point that something was going to happen to me or the house or to both.”

On cross-examination, Alderson stated that Asbury’s voice was the prevalent voice, the one he recognized making verbal threats. Neither defendant came into his home. Alderson never found any bullet holes or other indication that the gunshot hit his house, and he had no idea then or at trial where the shots were aimed.

The 911 dispatcher testified that she heard what sounded like gunshots while she was on the 911 call with Alderson.

Jeanean Bigogno testified that on that day of the incident, she was watching TV when she heard howling and yelling and banging outside through the open windows. She looked out the window and saw Asbury banging pots together and yelling “he wants his cat, give him his cat, it’s his cat.” Then Asbury began yelling at their three dogs, which were outside and barking because of the noise. He was yelling “shut up, shut up, I’m gonna kill you, get the hell out of here and just yelling at my animals.” At that point, Bigogno went outside to get her dogs. She made eye contact with Asbury and he was still yelling, “I’m gonna get them dogs, shut up, you know, just being irate and crazy.” She brought the dogs back inside and told Alderson that Asbury was acting irrationally. Alderson called the non-emergency police number.

Bigogno went to the back porch, which was closest to Asbury’s property to hear what was happening outside. She heard him say he was going to get a gun and “shoot us all. He’s gonna kill us.” At one point he said he was going to poison their dogs. He was going to get a gun and was going to shoot them. Then Asbury left on his scooter. About five minutes later, Bigogno heard Asbury’s scooter return and saw a blue truck behind him. Asbury began walking back and forth yelling that “he wants his cat, he’s gonna f* * *ing kill us and he’s gonna get a gun and he’s gonna shoot us and he’s never done nothing to us, there’s no reason for us to be doing this to him.” Bigogno pointed out on a map that Asbury was walking back and forth “from this area where the animal is to back here where our back door and back windows are” but it is not clear from the record whether Asbury was on Bigog-no’s property or his property at that point.

Then she saw Asbury and Schepman in Asbury’s yard where she originally saw him banging pots together. They could see her looking out the window if they looked. She believed they saw her because she was yelling to Alderson what they were saying. Bigogno heard a gun cocking and then heard a shot fired. The shot shook her house and her body. She ran from the back porch into the living room to call 911 but Alderson was already calling 911. Then she heard five or six more gunshots in rapid succession. She heard Asbury say, “I’m gonna kill them, I’m gonna kill you guys” and then it was quiet for a while. When asked how she felt at that point, she responded, “Oh, God, scared. I was shaking in my boots. I was very, very scared.” Bigogno was still in shock, crawling around on the kitchen floor, using the wall for cover, when she heard Asbury say, “We need to get more gun power.”

When police arrived, they observed As-bury and Schepman standing in Asbury’s back yard, about twenty feet from Alder-son’s home. Schepman was holding an assault rifle. The bullets fired from that rifle could pierce body armor or walls. The shots are very loud. Both Defendants made statements to police. Asbury said he was mad because the neighbor had his cat. He admitted threatening to kill the neighbor and the neighbor’s dog if his cat was not returned. He left briefly and returned with his friend, Schepman, “for what he called backup.” After returning, he continued to yell that he was going to kill the victim and the victim’s dogs. Schepman said he came to Asbury’s yard to shoot rats. Then he changed his story and said he had come to Asbury’s home with his assault rifle to scare the victim. He fired several rounds into the ground to scare the victim. Police did not determine where the shots were fired.

Motion for Judgment of Acquittal

In his motion for judgment of acquittal, Asbury argued that he did not have the ability to carry out any threat or make an assault with a deadly weapon. The trial court noted, however, that Defendants were charged as principals. Asbury also argued that the police testimony was not credible because Defendants’ statements were not recorded. The court denied As-bury’s motion as being “not remotely close.”

In his motion for judgment of acquittal, Schepman argued that “Alderson did not hear anything really” and Bigogno was eavesdropping. The statements were not directed at her. The court denied his motion as well.

Defense Case

Asbury testified that he never made any threats to the victims. He had not seen them. He also denied making any admissions to the police. Instead, he was merely repeating back to them what they had told him so he could be clear about what was being alleged. He brought Schepman to his home to help clean up his yard. He believed the noises heard on the 911 call were not gunshots, but him banging on a metal pan, which is how he notified the area cats to come and eat. Asbury did not ask Schepman to bring a gun and never saw him with a gun. He heard a shot and Schepman told him he was shooting at a rat. Asbury published a video taken from one of his surveillance cameras. It showed Asbury and Schepman standing in Asbury’s yard.

Jury Instruction, Sentence, and Appeal

During discussions about jury instructions, the trial judge gave the parties a copy of Garzón v. State, 980 So.2d 1038 (Fla.2008), and said that he had modified the instructions provided by the prosecutor to avoid the problem in that case. The problem in Garzón involved using “and/or” in between two defendants for the same charge. The judge noted that the supreme court had offered suggested alternatives, such as using “as to each defendant,” which he was incorporating into the instructions.

The judge gave the following jury instruction on aggravated assault, in pertinent part:

James Asbury and Kent Schepman, the defendants in this case, have been accused of the crime of principal to aggravated assault with a firearm, possession and discharge.
As to each of the defendants, to prove the crime of aggravated assault, the State must prove the following four elements beyond a reasonable doubt. The first three elements define assault.
1. The defendant intentionally and unlawfully threatened, either by word or act, to do violence to Daniel Alderson or Jeanean Bigogno.
2. At the time, the defendant appeared to have the ability to carry out the threat.
3. The act of the defendant created in the mind of Daniel Alderson or Jeane-an Bigogno, a well-founded fear that violence was about to take place.
4. The assault was made with a deadly weapon.

The jury found both Defendants guilty of principal to aggravated assault with a firearm, “as charged in the Information,” with a special finding that Schepman discharged a firearm during the crime.

Schepman was sentenced immediately to the minimum mandatory term of twenty years in prison based on the special finding that he discharged a firearm during the commission of the aggravated assault. Asbury was later sentenced to three years in prison. Both timely appealed.

Standard of Review

Unpreserved arguments regarding jury instructions are generally not reviewable on appeal unless they constitute fundamental error. See State v. Delva, 575 So.2d 643, 644 (Fla.1991) (holding that unpreserved challenges to jury instructions “can be raised on appeal only if fundamental error occurred”). For an erroneous jury instruction to amount to fundamental error, it “must reach 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.” Id. at 644-45 (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). In making such a determination, we must consider the “totality of the record at trial,” Garzón, 980 So.2d. at 1041, including “the other jury instructions, the attorneys’ arguments, and the evidence in the case.” Garzón v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006).

Jury Instruction Error

Defendants argue that the jury instruction in this case was fundamentally flawed because it allowed the jury to convict them by finding that they threatened one victim and caused fear in another. They cite two Fifth District cases in support of their argument.

In James v. State, 706 So.2d 64 (Fla. 5th DCA 1998), the amended information contained a single count charging the defendant with assaulting “either Katrina M. Barber or Tracey Hickson with a firearm.” Id. Hickson testified at trial that James did not threaten her. Instead, he aimed a gun at Barber, who was standing in the same group of girls with her. Hickson became afraid of stray bullets hitting her. Barber, however, apparently was “unaware of any threat posed by James.” Id.

On appeal, we held that the trial court committed reversible error in denying the defendant’s motion to dismiss the information because “separate and distinct offenses may not generally be alleged in a single count of an information.” Id. at 65 (citing McGahagin v. State, 17 Fla. 665, 668 (1880)). We also concluded that it was “fundamental error to instruct the jury in a way which would permit the jury to find that one alleged victim was threatened while the other had a well founded fear that violence was imminent.” Id. We explained:

Lumping alleged victims together in a single count of aggravated assault and permitting the jury to return a verdict of “guilty as charged” creates serious due process problems. As asserted by the defendant here, the jury, based upon the instructions given could have found the defendant guilty finding that the defendant threatened Barber and that Hickson (but not Barber) was frightened by the threat. However, such a scenario would not constitute the crime of aggravated assault. See § 784.011, Fla. Stat. (defining criminal assault as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that'such violence is imminent.”)

Id.

In Tindle v. State, 832 So.2d 966 (Fla. 5th DCA 2002), the defendant was charged with a single count of aggravated assault against “Charmaine Mixon ‘and/or’ Corey Williams.” Id. at 967. The trial evidence showed that while Mixon and Williams were moving furniture out of a home Mix-on and Tindle shared, Tindle threatened that he had a gun in his car, left, and returned with a gun. Mixon became fearful when she saw the gun. Williams testified that he did not fear for his own safety; he only feared for Mixon’s safety. Id. The jury instruction on the three elements of aggravated assault “included that Tindle’s acts created, in the mind of Mixon and/or Williams, a well-founded fear that violence was about to take place.” Id. Upon Tin-dle’s challenge to the jury instruction on appeal, we noted that “[although not cited by defense counsel, the State commendably (and consistent with its ethical obligation) has cited this court to the case of James v. State, 706 So.2d 64 (Fla. 5th DCA 1998) as being directly on point. We agree.” Id.

Subsequent cases have followed James and Tindle based on the principle that the lumping together of multiple victims in a single count with “or” or “and/or” may improperly allow the jury to find a defendant guilty by threatening one victim and causing fear of imminent violence in another victim. E.g., Fuller v. State, 942 So.2d 1039 (Fla. 2d DCA 2006); Miller v. State, 918 So.2d 415, 416-17 (Fla. 2d DCA 2006).

In Miller, a bank security guard escorted Miller to her car after the bank fired her. 918 So.2d at 416. While getting into her car, Miller made an audible threat in the presence of the guard and another employee who was standing next to him. She then drove toward the two employees but stopped short of hitting them. Id. The other employee became frightened by Miller’s actions, but some evidence indicated that the guard was not frightened. Id. Miller contained jury instructions similar to the instant case in that both the first and third elements used the disjunctive “or,” allowing the State to prove the crime that the defendant threatened “Mr. Barnes or Ms. Zevetchin” and that the defendant’s threats caused, in the minds of “Mr. Barnes or Ms. Zevetchin, or either of them,” a well-founded fear that violence was about to take place. Id. at 416. The appellate court noted that although the jury instruction did not use the “and/or” conjunction contained in the information, its use of the coordinating conjunction “or” in both the first and third elements of the offense was “still fundamentally erroneous” because it permitted the jury to convict the defendant “if one alleged victim was threatened while the other had a well-founded fear of violence.” See also Comer v. State, 997 So.2d 440 (Fla. 1st DCA 2008) (reversing denial of ineffective assistance claim for failure to challenge use “and/or” to connect multiple victims in aggravated assault instruction).

Based on James, Tindle, Fuller, Miller, and Comer, we conclude that the trial court erred in instructing the jury that the State could prove the first and third elements of aggravated assault against Aider-son or Bigogno because it theoretically allowed the jury to find Defendants guilty by finding that they threatened one victim and placed the other in fear.

Fundamental Error Analysis

To determine whether the guilty verdicts could have been obtained without the assistance of the jury instruction error, the instruction must be “examined in the context of other jury instructions, the attorney’s arguments, and the evidence in the case.” Garzón, 989 So.2d at 288.

The evidence on the threat and fear elements distinguish this case from the evidence in James, Tindle, and Miller. In James, the defendant threatened one victim and frightened another. In Tindle and Miller, the defendants threatened both victims but only frightened one of them. In the instant case, however, Defendants’ threats were directed at both victims and caused fear in both victims. Specifically, both Alderson and Bigogno testified that Asbury, while standing within hearing distance, loudly and repeatedly threatened to “kill you all,” “get everybody,” “kill everybody,” “kill us,” “shoot us,” and “kill you guys.” Likewise on the fear element, both Alderson and Bigogno testified that when the shots started, they both ran to call 911. Alderson was scared for his life. He told the 911 operator that he and Bigogno were in the living room, afraid to look outside and see what was happening or even lock the back door. When asked how she felt at that point, Bigogno stated, “Oh, God, scared. I was shaking in my boots. I was very, very scared.” Bigogno was in shock, crawling around on the kitchen floor, and using the wall for cover.

Defendants’ attempted factual assertions to the contrary in their briefs are, to use the words of the trial judge, “not remotely close.” They assert, among other things, that: (i) Alderson was afraid but did not believe violence was imminent; (ii) Aider-son was chiefly concerned about what might happen to the Animal Services agent when she came to collect Asbury’s cat; (iii) neither victim behaved like a person who feared imminent harm; and (iv) neither Defendant gave any indication that violence was imminent. These assertions grossly distort the victims’ testimony.

The factual distinction between the instant case and those finding fundamental error is critical. In those other cases, there was a real possibility that the jury could find the defendant guilty by concluding that he threatened one victim and caused fear in another. In this case, the evidence precludes that scenario from being a realistic possibility. Because the overwhelming evidence demonstrates that the defendants threatened and caused fear in both Alderson and Bigogno, the jury must have concluded that Defendants assaulted both victims, not one or the other. See Groom v. State, 36 So.3d 707, 710 (Fla. 1st DCA 2010) (holding that connecting three victims in single aggravated assault instruction not fundamental error under totality of circumstance because of overwhelming evidence that defendant assaulted all three victims with firearm). Moreover, nothing in the attorneys’ arguments or the remaining jury instructions suggested that the jury could determine guilt by finding that Defendants threatened one victim and caused fear in another. Unlike the other cited cases, it simply cannot be said in this case that a guilty verdict “could not have been obtained without the assistance of the alleged error.” Delva, 575 So.2d at 644-45; cf. Bryant v. State, 30 So.3d 591, 595 (Fla. 2d DCA 2010) (finding use of “and/or” in robbery instruction not fundamental error where defendant’s demand for victim’s purse by pointing a gun to her son’s head was sufficient to support robbery charge because it induced fear in a reasonable person).

As many other cases have noted, Florida courts have long condemned the use of the conjunctions “and/or” and “or” to connect multiple defendants or multiple victims within a single criminal charge. See, e.g., Miller, 918 So.2d at 416 n. 1. We urge prosecutors and trial judges to avoid such faulty shortcuts. We believe the solution to the problem that occurred in this case lies more in modifying the charging document than the jury instruction. As we noted in James, it is improper to include multiple victims in a single count alleging aggravated assault because doing so results in charging multiple offenses within a single count. James, 706 So.2d at 65. Therefore, one solution to these related problems is to charge separate counts for each victim and to give separate instructions for each count. While this solution may result in longer jury instructions, it avoids the much greater consequences of a retrial or a defendant being discharged because of this avoidable error.

Remaining Arguments

Defendants also attempt to suggest that no aggravated assault was committed because: (i) they did not shoot into the victims’ home, unlike the defendant in Kin-dell v. State, 413 So.2d 1283 (Fla. 3d DCA 1982), disapproved on other grounds, Reynolds v. State, 452 So.2d 1018 (Fla. 3d DCA 1984); (ii) they did not enter the victim’s home, citing L.C. v. State, 799 So.2d 330 (Fla. 5th DCA 2001); and (iii) the shots ended long before police arrived, suggesting that any threat was conditional.

In L.C., the defendant, who was standing outside, told the victim, who was inside a locked apartment, to “come out the door. I’m going to beat your ass.” 799 So.2d at 331. This court reversed the defendant’s adjudication of delinquency because the threat was conditional, the defendant had no apparent ability to carry out the threat, and the defendant never attempted to enter the victim’s apartment. Id. at 332.

In Kindell, the appellate court rejected the defendant’s argument that there was no evidence that the victims feared imminent harm. 413 So.2d at 1286. The evidence showed that the defendant became enraged, threatening to leave the apartment and return with a gun. Id. at 1287. She left and returned stating she was going to start shooting if no one opened the door. “Shots then penetrated the door striking both victims.” Id. The appellate court stated that the victims did not need to see the firearm to be placed in fear. Rather, the defendant’s threats to deal with victims upon her return, and upon return, to start shooting if the door was not opened, were sufficient to warrant a reasonable fear of imminent harm. Id. Similarly, in the instant case, Defendants’ repeated threats to go get a gun and shoot the victims, leaving and returning with a gun, repeating the death threats, and then shooting multiple loud shots nearby, were sufficient acts to cause fear of imminent bodily harm in the mind of a reasonable person.

Finally, Schepman challenges the prosecutor’s closing argument despite conceding that any errors were not preserved and not likely to be viewed as fundamental error. This insufficient and conclusory argument, unsupported by a separate issue on appeal and any supporting facts or legal authority, fails to warrant independent consideration.

AFFIRMED.

ORFINGER, LAWSON, JJ., and HARRIS, C.M., Senior Judge, concur.

      . We note with incredulity that the State was able to brief this case without even referencing James or Tindle, or any of the subsequent cases following them. Rather than concede error, as in Tindle, or attempt to distinguish the cases that Defendants relied upon as controlling, the State simply ignored them. This briefing technique, if one can call it that, is wholly unhelpful and unprofessional. We expect more from the lawyers practicing before the court.

      . Fuller and Comer did not recount the evidence in those cases.


author: WELLS, Judge.

text:
    Tommy ROBINSON, Petitioner, v. The STATE of Florida, and Marydell Guevara, Director, Miami-Dade Corrections and Rehabilitation Department, Respondents.
    No. 3D14-2219.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2014.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant Attorney General, for respondents.
    Before WELLS, SUAREZ and SALTER, JJ.
   WELLS, Judge.

Tommy Robinson seeks a writ of habeas corpus to remedy his detention without bond. Robinson was arrested in F14-3806 on February 11, 2014, for sale of cocaine, openly carrying a weapon and resisting an officer without violence. He was released on bond. His case was set for trial on July 28, 2014. On that day he appeared in court but apparently during a court recess, he left. The case was reset for the next day, July 29, 2014, and on that date, Robinson failed to appear and the judge issued an alias capias warrant. On September 9, 2014, the alias capias warrant was served on the petitioner and he was arrested.

At the defendant’s appearance at the alias capias calendar, petitioner was ordered held without bond although the trial court neither determined whether his failure to appear in court was willful, nor made the necessary findings that “no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.” § 907.041(4)(c), Florida Statutes (2014); see Art, I, § 14, Fla. Const.; Blair v. State, 39 So.3d 1190 (Fla. 2010). As such, we grant Robinson’s petition for writ of habeas corpus only insofar as we remand to the trial court for an expedited bond hearing pursuant to section 907.041(4)(c), Florida Statutes (2014). The trial court’s determination shall include, but is not limited to, Robinson’s willfulness in failing to appear. Robinson shall remain in detention pending the outcome of the hearing. See Herrera v. State, 3D14-2199, 2014 WL 4627613 (Fla. 3d DCA 2014).

As such, we grant Robinson’s petition for writ of habeas corpus only insofar as we remand to the trial court for an expedited bond hearing pursuant to section 907.041(4)(c), Florida Statutes (2014). The trial court’s determination shall include, but is not limited to, Robinson’s willfulness in failing to appear at his scheduled pretrial sounding. Robinson shall remain in detention pending the outcome of the hearing.

Petition is granted; remanded for an expedited bond hearing.

This opinion shall take effect immediately notwithstanding the filing or disposition of any motion for rehearing.


text:
    Henry DIAZ, Appellant, v. PALMETTO GENERAL HOSPITAL/SEDGWICK CMS, Appellee.
    No. 1D14-1676.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2014.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Cindy R. Galen of Eraclides, Gelman, Hall, Indek, Goodman & Waters, LLC, Sarasota, and Vanessa Lipsky of Era-clides, Gelman, Hall, Indek, Goodman & Waters, LLC, Aventura, for Appellees.
   PER CURIAM.

Based on Castellanos v. Next Door Co., 124 So.3d 392 (Fla. 1st DCA 2013), we AFFIRM. Our disposition passes upon the same question we certified in Castella-nos. Id. at 394. See Jollie v. State, 405 So.2d 418, 421 n. * (Fla.1981).

AFFIRMED.

WOLF, ROWE, and OSTERHAUS, JJ., concur.


text:
    James O’DONNELL and Ann O’Donnell, Petitioners, v. UNIVERSAL PROPERTY AND CASUALTY COMPANY, Respondent.
    No. 1D14-3964.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2014.
    Gary A. Shipman and William E. Whitney, of Dunlap & Shipman, P.A., Santa Rosa Beach, for Petitioners.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of certiorari, filed on September 2, 2014, is denied.

WOLF, RAY, and OSTERHAUS, JJ., concur.


text:
    Grady M. KITTRELL, Petitioner, v. Jane K. KITTRELL, Respondent.
    No. 1D14-1918.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2014.

      Grady M. Kittrell, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. See Hedrick v. State, 6 So.3d 688, 693 (Fla. 4th DCA 2009) (holding that trial judge was not required to rule on motion to disqualify which was never served on judge as required by Florida Rule of Judicial Administration 2.330(c)); Thomas v. State, Dept, of Revenue, 74 So.3d 145 (Fla. 1st DCA 2011) (stating that absent a showing that an express and distinct demand for performance was made, mandamus will not lie to compel a court to rule on a pleading in a civil matter).

WOLF, RAY, and OSTERHAUS, JJ., concur.


text:
    Gary KENYON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5467.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2014.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse appellant’s conviction and sentence, and remand for a new trial.

After a jury trial, appellant was convicted of trafficking in hydrocodone. A witness at trial was an analyst employed by the Florida Department of Law Enforcement who testified about the nature and quantity of the controlled substance. After this appeal was initiated, this court relinquished jurisdiction to the circuit court to consider appellant’s motion for post-conviction relief which raised a claim of newly discovered evidence: that the FDLE analyst who testified at appellant’s trial had been arrested and charged with multiple counts, including grand theft of a controlled substance, tampering with or fabricating physical evidence related to exhibits submitted to FDLE for testing, and trafficking in illegal substances. The circuit court found the motion for postconviction relief to be well taken and that appellant should be granted a new trial.

REVERSED and REMANDED for a new trial.

WOLF, RAY, and OSTERHAUS, JJ., concur.


text:
    Demarquarius Deonte TRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4051.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2014.

      Nancy A. Daniels, Public Defender, M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals his conviction and sentence for improper use of computer services in violation of section 847.0135(3), Florida Statutes, traveling to meet a minor in violation of section 847.0135(4), Florida Statutes, and unlawful use of a two-way communications device in violation of section 924.215, Florida Statutes. He raises eight issues on appeal. We affirm without comment as to all issues except one.

Addressing Appellant’s argument that his convictions for improper use of computer services to solicit a minor and traveling to meet the minor constitute double jeopardy, we affirm on authority of State v. Murphy, 124 So.3d 323, 330-31 (Fla. 1st DCA 2013), in which this court held that dual convictions for solicitation of a minor and traveling to meet the minor do not violate double jeopardy because sections 847.0135(3) and (4) reflect a clear legislative intent to punish the offenses separately. Accord Griffis v. State, 133 So.3d 653 (Fla. 1st DCA 2014); Cantrell v. State, 132 So.3d 931 (Fla. 1st DCA 2014); Elsherry v. State, 130 So.3d 798 (Fla. 1st DCA 2014). As this court did in Griffis, we acknowledge and certify a conflict on this issue with HaHley v. State, 129 So.3d 486 (Fla. 4th DCA 2014).

AFFIRMED; CONFLICT CERTIFIED.

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Domonique SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5205.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2014.
    Domonique Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel A. Johnson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On our own motion, we treat the petition for certiorari as a notice of appeal, and reverse and remand for further proceedings in accordance with Waters v. Department of Corrections, 144 So.3d 609 (Fla. 1st DCA 2014). We also deny appellant’s request for costs without prejudice to the filing of a proper motion with the lower tribunal. See Fla. R. App. P. 9.400(a).

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    James CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1522.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2014.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the imposition of a suspended sentence of five years’ incarceration for his conviction of driving without a license (habitual offender). Appellant asserts that his suspended sentence is not a “nonstate prison sanction” and is, therefore, an upward departure in violation of section 775.082(10), Florida Statutes (2013). Because this argument was not raised during either the sentencing hearing or via a Florida Rule of Criminal Procedure 3.800(b)(2) motion, it is unpre-served and this court cannot reach the question. Appellant’s judgment and sentence are AFFIRMED.

WOLF, ROWE, and OSTERHAUS, JJ., concur.


text:
    Michael Louis McINTOSH, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1938.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2014.
    Michael Louis McIntosh, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Michael Louis McIntosh is an inmate at the Suwannee Correctional Institution Annex in Live Oak. He appeals from an order denying his Motion To Correct Jail Credit, filed pursuant to Florida Rule of Criminal Procedure 3.801. The trial court determined that the record did not demonstrate on its face that McIntosh was entitled to relief. However, it failed to attach to its order any portion of the record supporting its conclusion. Rule 3.801(e), which incorporates Florida Rule of Criminal Procedure rule 3.850(f), requires the circuit court to attach to its order denying a motion seeking additional jail credit records that conclusively refute the motion. See Fla. R. Crim. P. 3.801(e); Fla. R. Crim. P. 3.850(f)(5) (“If the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order.”); Geil v. State, 140 So.3d 691 (Fla. 1st DCA 2014); Williams v. State, 141 So.3d 686 (Fla. 4th DCA 2014). We therefore reverse and remand with directions to the trial court to attach those portions of the record that conclusively refute McIntosh’s claims.

REVERSED AND REMANDED.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Kareem X. GOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3157.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2009.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Kareem Gough appeals his conviction for second degree murder arguing that the trial court committed fundamental error in giving the standard jury instruction on manslaughter. Intent was a disputed issue in this case. Accordingly, we reverse and remand for a new trial. Montgomery v. State, 70 So.3d 603, (Fla. 1st DCA 2009).

REVERSED AND REMANDED for further proceedings consistent with this opinion.

BARFIELD, KAHN, and VAN NORTWICK, JJ., concur.


text:
    James R. MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1715.
    District Court of Appeal of Florida, First District.
    March 22, 2012.

      James R. Mitchell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR CERTIFICATION BASED UPON CONFLICT AND/OR QUESTION OF GREAT PUBLIC IMPORTANCE

PER CURIAM.

This cause is before us on Appellee’s Motion for Certification Based Upon Conflict and/or Question of Great Public Importance. We grant Appellee’s motion, withdraw our opinion filed February 2, 2012, and substitute the following opinion in its place.

Appellant appeals the denial of a motion to correct illegal sentence filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. Appellant alleges that his sentence violates his right to have a jury determine all facts necessary to impose his upward departure sentences. For the reasons discussed below, we reverse and remand for further proceedings.

Appellant was convicted of sexual battery with a deadly weapon, attempted first degree murder, armed robbery, and causing bodily injury during the commission of a felony. On April 30, 2002, Appellant was resentenced pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000) (invalidating the 1995 guidelines and permitting defendants sentenced thereunder to seek resentencing under the 1994 guidelines). The trial court imposed upward departure sentences of life imprisonment on each count based on its findings that (1) the offenses were committed in an especially heinous, atrocious or cruel manner, and (2) the victim suffered extraordinary physical or emotional trauma, or permanent physical injury, or was treated with particular cruelty. The 1994 scoresheet called for a maximum sentence of 20.9 years’ imprisonment.

In February 2007, Appellant filed the instant motion for postconviction relief. Appellant asserted that his upward departure sentences violated his right under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to have a jury determine all facts that increase his sentence beyond the statutory maximum. Relying on Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), Appellant also claimed that Apprendi applies to his case because he was resentenced after Appren-di was decided. He alleges that without the trial courts findings in support of the upward departure, his maximum sentence would have been 20.9 years’ imprisonment under the guidelines.

Under Apprendi, the facts supporting the imposition of a sentence beyond the statutory maximum must be found beyond a reasonable doubt by a jury or admitted by the defendant. As clarified in Blakely v.Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the statutory maximum is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Emphasis in original.) Thus, under both Apprendi and Blakely, Appellant is entitled to a jury determination of any fact that increased his sentence beyond the guidelines maximum, which in this case is 20.9 years.

In Isaac, this court held that although Apprendi does not apply retroactively, Apprendi and Blakely apply to a defendant who is resentenced after Ap-prendi became final but before Blakely was decided. 911 So.2d at 815; but see Garcia v. State, 914 So.2d 29 (Fla. 4th DCA 2005) (certifying conflict with Isaac). In the instant case, Appellants sentence became final after Apprendi but before Blakely; thus, Apprendi applies to Appellant’s case because it was decided prior to Appellants resentencing. As noted above, under Apprendi, the facts supporting the imposition of an upward departure sentence must either be found beyond a reasonable doubt by a jury or admitted by the defendant; here, the findings supporting Appellants upward departure sentence were made by the trial court.

This court granted a stay in this case because the Florida Supreme Court had decided to review this court’s decision in Isaac. In February 2011, the supreme court issued a decision in State v. Fleming, 61 So.3d 399 (Fla.2011), which held that Apprendi and Blakely apply to all de novo resentencings that were not final when those decisions issued, regardless of when the conviction or original sentence was final. On June 16, 2011, the supreme court discharged jurisdiction in Isaac based upon its determination that the conflict had been resolved. Thus, this court’s decision in Isaac is still good law in this jurisdiction. If the failure to follow the dictates of Apprendi and Blakely is harmless error, however, then Appellant is not entitled to relief. See Galindez v. State, 955 So.2d 517 (Fla.2007) (holding that any Apprendi or Blakely error is subject to a harmless error analysis). The record before this court is insufficient to conduct such an analysis.

Therefore, we reverse the denial of Appellant’s motion to correct illegal sentence and remand for the trial court to attach portions of the record conclusively refuting Appellant’s claim or to conduct further proceedings according to Galindez. Cf. Johnson v. State, 18 So.3d 697 (Fla. 1st DCA 2009) (remanding for harmless error analysis pursuant to Galindez). We certify the following question as one of great public importance:

DO BLAKELY V. WASHINGTON, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), AND APPRENDI V. NEW JERSEY, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), APPLY RETROACTIVELY IN THE CONTEXT OF A SENTENCING WHERE THE RESENTENCING OCCURRED AND BECAME FINAL AFTER APPREN-DI WAS DECIDED, BUT BEFORE BLAKELY WAS ISSUED?

REVERSED and REMANDED with instructions consistent with this opinion; QUESTION CERTIFIED.

THOMAS, ROBERTS, and MARSTILLER, JJ., concur.

      . Fleming involved a case where the conviction was final before Apprendi issued, but the resentencing was not final when Blakely issued. It did not answer the question of whether Blakely applies to a resentencing which took place after Apprendi was final but before Blakely issued.


author: PER CURIAM. THOMAS, J.,

text:
    Jeanne Chitty CAMPBELL, Individually, As Trustee of the Jeannette Z. Chitty Revocable Trust, As Trustee U/W Henry M. Chitty, Jr., and As Trustee U/W Louise S. Zetrouer, Chitty-Alachua, a Florida Limited Liability Company, Stardust Angus Ranch, LLC, a Florida Limited Liability Company, Stardust Angus Ranch, Ltd., a Florida Limited Partnership, Stardust Angus Ranch, Inc., a Florida Corporation, Chitty-Marion, LLC, a Florida Limited Liability Company, and Chad E. Campbell, Individually, Appellants, v. Henry M. CHITTY, III, Appellee.
    No. 1D12-0861.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2012.
    John S. Mills and JoLen Rawls Wolf of The Mills Firm, P.A., Tallahassee, for Appellants.
    Guy W. Norris of Norris & Norris, P.A., Lake City, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s motion for review filed on March 16, 2012, the trial court’s March 2, 2012, order denying a stay is affirmed. The temporary stay previously granted by this court on February 21, 2012, is hereby lifted.

CLARK and SWANSON, JJ., concur.

THOMAS, J., Dissenting with Opinion.

THOMAS, J.,

Dissenting.

I would grant the motion for review and reverse the lower tribunal’s March 2, 2012, order denying a stay. The lower tribunal’s order, which adopted its prior interim order, requires, inter alia, that the real property held by the trust be liquidated in its entirety. The appellant argues that this order is inconsistent with the provisions of the trust, requiring distributions of some of the real property to Petitioner and Respondent, respectively.

A stay is appropriate when a party has demonstrated a likelihood of success on the merits, and a likelihood of harm to that party absent the entry of a stay. See Perez v. Perez, 769 So.2d 389 n. 4 (Fla. 3d DCA 1999). Here, the movant has established a likelihood of success on the merits. Particularly concerning is the trial court’s order as it relates to the real property located in Marion County. As the appellant argues, it would appear that the lower tribunal’s order is inconsistent with Article 16 of the Trust, which provides that “[i]f it is possible to do so without overfunding JEANNE CHITTY CAMPBELL’S one half interest in this Trust Estate, I direct that the Trustee fund her devise with real property situated in Marion County, Florida.” If the real property is liquidated prior to the outcome of this appeal, irreparable harm will result to the appellant.

I therefore respectfully dissent.


text:
    Charles Ernest ROOD, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5617.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2012.
    Charles Ernest Rood, Jr., 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.

PADOVANO, MARSTILLER, and SWANSON, JJ., Concur.


author: RAY, J.

text:
    Timothy SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4073.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2013.
    Nancy A. Daniels, Public Defender; and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    . Pamela Jo Bondi, Attorney General; and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   RAY, J.

Timothy Scott (Appellant) appeals his conviction for possession of a firearm by a convicted felon. As grounds for relief, Appellant contends that the trial court erred, first, in denying his motion for judgment of acquittal and, second, in allowing the prosecutor to make certain improper remarks during closing argument. Finding no error as to the second issue, we affirm without further comment. In the first issue, Appellant argues that the State introduced Appellant’s incriminating statements without establishing the corpus de-licti of possession of a firearm by a convicted felon. We affirm the judgment and sentence because Issue One was not adequately preserved.

“[U]nder the corpus delicti rule, the State has the burden of proving, by substantial evidence, that a crime was committed before a defendant’s confession can be admitted in evidence.” Martin v. State, 911 So.2d 821, 822 (Fla. 5th DCA 2005); see Burks v. State, 613 So.2d 441, 443 (Fla.1993). The State offered into evidence undisputed proof that Appellant had a prior felony conviction. As to the element of possession of a firearm, the State introduced statements of Appellant directly linking him to the room where the firearm was found next to his bed. Where an admission against interest is allowed into evidence without independent proof of the corpus delicti, a contemporaneous objection must be made to preserve the issue for appellate review. J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998) (“In the absence of a proper objection, a trial judge does not have an obligation to prohibit inadmissible evidence from being considered by the fact finder.”). No such objection was made in this case. ‘Without an objection, the error, if it was error, was waived and not preserved for appeal.” State v. Harrington, 838 So.2d 1230, 1231 (Fla. 5th DCA 2003) (concluding that because defendant’s confession was admitted into evidence without an objection, the defense waived the issue of whether the State adequately proved the corpus delicti of the offense before admission of the statement, and defense counsel’s argument made at the end of the State’s case, relying on the corpus delicti rule, was not a proper substitute for a contemporaneous objection).

AFFIRMED.

PADOVANO and ROWE, JJ., concur.

       Section 790.23(l)(a), Florida Statutes (2010).


text:
    David Brian ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4787.
    District Court of Appeal of Florida, First District.
    March 21, 2013.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Ward v. State, 585 So.2d 497 (Fla. 1st DCA 1991).

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.


text:
    Chase CORBIN, Appellant, v. UNIVERSITY OF FLORIDA, Appellee.
    No. 1D12-1088.
    District Court of Appeal of Florida, First District.
    April 4, 2013.
    Sonya Rudenstine, Gainesville, for Appellant.
    Amy M. Hass and Brande S. Smith, Gainesville, for Appellee.
   PER CURIAM.

Chase Corbin, a student at the University of Florida, seeks review of an administrative order imposing disciplinary sanctions against him for violations of the university’s Student Conduct Code. As this Court held in Decker v. University of West Florida, 85 So.3d 571 (Fla. 1st DCA 2012), such orders are not appealable to the district courts, but, rather, are reviewable by certiorari in the circuit court having territorial jurisdiction over the university. Here, the proper forum is the circuit court for Alachua County. Therefore, we treat the notice of appeal in this case as a petition for writ of cer-tiorari and transfer the case to the Eighth Judicial Circuit Court in Alachua County.

THOMAS, WETHERELL, and ROWE, JJ., concur.


author: PER CURIAM. MAKAR, J.,

text:
    STATE of Florida, Petitioner, v. James Shenard DAVIS, Respondent.
    No. 1D12-5627.
    District Court of Appeal of Florida, First District.
    April 11, 2013.

      Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Petitioner.
    No appearance for Respondent.
    George E. Schulz, Jr. of Holland & Knight, Jacksonville; Samuel Spital, pro hac vice, of Holland & Knight, New York, NY; and Laura Ann Fernandez, pro hac vice, of Holland & Knight, Washington, DC, for Judge Charles W. Arnold.
   PER CURIAM.

The State of Florida petitions this court for a writ of certiorari, seeking to quash a nonfinal order of the lower tribunal in this ongoing criminal prosecution. We grant the petition.

The respondent was charged with two counts of aggravated assault and one count of carrying a concealed firearm. At the charge conference, the state requested that the jury be given Florida Standard Jury Instruction 3.10(5), which reads:

Your duty is to determine if the Defendant has been proven guilty or not, in accord with the law. It is the Judge’s job to determine a proper sentence if the Defendant is found guilty.

The trial judge proposed several changes to this standard instruction. The state moved for a pre-trial ruling, seeking a definitive answer as to whether the trial court intended to amend the standard jury instruction. The trial court granted the motion and entered a pre-trial order answering the state’s question in the affirmative and indicating that standard jury instruction would be amended to read:

Your duty is to determine if the defendant has been proven guilty or not, in accord with the law. It is the judge’s job to determine a proper sentence if the defendant is found guilty. However, in certain cases involving firearms the discretion of the Court in imposing a sentence has been limited by State Law.

(Emphasis added). This petition seeks review of that order.

To obtain a writ of common law certiorari, a petitioner must establish that an order of the lower tribunal (1) departed from the essential requirements of law, (2) causing a material injury that (3) is unable to be remedied via appeal. See Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004). The common law writ of certiorari “‘provides a remedy only if the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm.’ ” Reeves, 889 So.2d at 822 (quoting Fla. R.App. P. 9.130 (Committee Notes, 1977 Amendment)). The existence of mere legal error is not sufficient to establish entitlement to a writ of certiorari; the error must be so egregious as to constitute “a violation of clearly established principles of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (citing Combs v. State, 436 So.2d 93, 95 (Fla.1983)). In the instant petition, the state has met this heavy burden.

While we recognize that “[d]eci-sions regarding jury instructions are within the sound discretion of the trial judge and will be affirmed absent prejudicial error,” Negron v. State, 938 So.2d 650, 651 (Fla. 4th DCA 2006), trial judges are nevertheless constrained by the dictates of Florida Rule of Criminal Procedure 3.390(a), which unambiguously provides that “[e]xcept in capital cases, the judge shall not instruct the jury on the sentence that may be imposed for the offense for which the accused is on trial.” The crux of the issue here is just how broadly or narrowly the words “the sentence” must be construed. The state argues that, as evidenced by the plain language of the rule and the concerns giving rise to the rule’s adoption, “the sentence” must necessarily include, in addition to overt references to mandatory mínimums, any allusions to the manner in which the jury’s verdict may cause a defendant to be sentenced. The trial judge favors a narrower interpretation of the words “the sentence,” essentially concluding that a jury instruction will not run afoul of Rule 3.390(a) if it contains no explicit reference to the existence of a mandatory minimum sentence or to the sentence length. Instead, the trial judge suggests, the proposed language at issue here operates to prevent the jury from being misled into believing that a trial judge has absolute discretion over a convicted defendant’s sentence, when in fact the judge may be limited in the exercise of his or her sentencing discretion by preexisting law.

“The purpose of Rule 3.390(a) is to minimize the possibility of jury sympathy based on the defendant’s potential sentence, and to control the jury’s exercise of its pardon power to ensure that the jury decides a case according to the law and evidence presented, rather than the consequences of its verdict.” Knight v. State, 919 So.2d 628, 634 (Fla. 3d DCA 2006) (citing Legette v. State, 718 So.2d 878, 880-81 (Fla. 4th DCA 1998)). Rule 3.390(a) “explains that the penalty is irrelevant to the jury’s sole responsibility of determining a defendant’s guilt or innocence, that the jury cannot be privy to the myriad factors which must be considered in sentencing, and that the court’s advising the jury of the possible penalty is wholly inconsistent with the jury’s responsibility to disregard the consequences of its verdict and tends to encourage a deplorable phenomenon which has come to be referred to as a ‘jury pardon.’ ” In Re Amendment to Rules of Criminal Procedure 3.390(a), 416 So.2d 1126, 1127 (Fla.1982) (Alderman, J., dissenting) (explaining the rationale for the version of Rule 3.390(a) that would eventually be adopted in 1985).

“The challenged instruction appropriately reiterates the evolving policy of removing from a noncapital jury any knowledge of potential penalties for the crimes with which a defendant is charged.” Broughton v. State, 790 So.2d 1118, 1119 (Fla. 2d DCA 2001) (emphasis added). The purpose of Rule 3.390(a) is to ensure that a non-capital jury does not concern itself with a defendant’s potential sentence. To advise the jury that the judge’s sentencing discretion may be constrained by an act of the legislature impermissibly oversteps the boundaries of Rule 3.390(a) and Broughton, supra.

Petition GRANTED, order QUASHED and case REMANDED for further proceedings consistent with this opinion.

LEWIS and THOMAS, JJ., concur; MAKAR, J., specially concurring.

MAKAR, J.,

specially concurring.

It is commendable that the trial judge in this case listens closely to jurors, current and former, to get their feedback on jury instructions used in his courtroom. Jurors understandably want to know the consequences of their actions, and judges undoubtedly want jurors to have faith that jury instructions are legally accurate so that juries can more effectively perform their role.

In light of the firewall that has arisen since Florida Rule of Criminal Procedure 3.390(a) was amended in 1984 to separate the jury’s function as fact-finder entirely from the judge’s role in sentencing, The Florida Bar Re: Amendment to Rules-Criminal Procedure, 462 So.2d 386 (Fla. 1984), the proposed instruction at issue may not be used. Courts have uniformly left no wiggle room on the topic. See, e.g., Knight v. State, 919 So.2d 628, 634 (Fla. 3d DCA 2006); Broughton v. State, 790 So.2d 1118,1119 (Fla. 2d DCA 2001).

That said, the trial judge’s concern was limited, focusing solely on the word “proper” in the standard instruction. “Proper” has a host of meanings, though in this context it is likely understood to mean “fit,” “suitable,” or “appropriate.” Yet his experience was that former jurors, to whom he routinely sends post-trial letters informing them about the sentences he imposed in their cases, have misunderstood “proper” to mean that he had unlimited discretion to impose any and all possible sentences, whether involving incarceration or otherwise. Though the standard instruction does not say the trial judge’s sentencing discretion is unlimited, apparently some jurors are mentally processing it that way. Because the “evolving policy” has been toward eliminating “any knowledge of potential penalties for the crimes with which a defendant is charged,” Broughton, 790 So.2d at 1119, supplementing the standard instruction in a way that mentions, or inferentially suggests, that the trial judge is limited by statutory sentencing constraints would go against this trend.

As an alternative, jurors might be told the trial judge is to “determine a lawful sentence” upon a finding of guilt, which is slightly more accurate. Indeed, it was an option the trial judge discussed below in the pre-trial hearing. Modifying the standard instruction to use “lawful” rather than “proper” would potentially eliminate the major concern expressed by former jurors. “Lawful” is a narrower concept than “proper” — the latter having a more open-ended connotation (as the trial judge related) than the former, which has a more restrictive meaning (i.e., bound by the law). Standard instructions are not immutable; they can be modified provided the trial court explains on the record why it is doing so. Substituting “lawful” for “proper” might be worth considering given that the State told the trial court it “would not argue with a possible instruction stating that the Court will determine the proper sentence in accordance with the law mandated by the legislature.”

      . The former version of the rule stated:
      (a) The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.
      Fla. R. Crim. P. 3.390 (1983). It was changed to state: "Except in capital cases, the judge shall not instruct the jury on the sentence which may be imposed for the offense for which the accused is on trial.” Fla. R. Crim. P. 3.390(a).

      . Rule 3.985 provides that standard instructions may be used:
      unless the trial judge shall determine that an applicable form of instruction is erroneous or inadequate, in which event the judge shall modify or amend the form or give such other instruction as the trial judge shall determine to be necessary to instruct the jury accurately and sufficiently on the circumstances of the case; and, in such event, the trial judge shall state on the record or in a separate order the respect in which the judge finds the standard form erroneous or inadequate and the legal basis of the judge’s finding.
      Fla. R. Crim. P. 3.985; see Holt v. State, 987 So.2d 237, 240 (Fla. 1st DCA 2008) ("A trial court's obligation under this rule is mandatory-”).


text:
    Jose Mauriciomira HERNANDEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1134.
    District Court of Appeal of Florida, First District.
    April 11, 2013.
    Rehearing Denied May 22, 2013.
    Jose Mauriciomira Hernandez, 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, C.J., ROWE and MARSTILLER, JJ., concur.


text:
    PAIN REDUCTION CONCEPTS, INC., a Florida corporation, Appellant, v. Adam K. FRISBIE, individually, and Pain Science Solutions, Inc. a Florida corporation, Appellees.
    No. 1D11-3928.
    District Court of Appeal of Florida, First District.
    April 24, 2013.
    John R. Stiefel, Jr., of Holbrook, Akel, Cold, Stiefel & Ray, P.A., Jacksonville, for Appellant.
    No brief filed for Appellees.
   PER CURIAM.

Appellant, Pain Reduction Concepts, Inc., appeals a final judgment entered in favor of Appellee, Adam K. Frisbie, and argues that the trial court erred in determining that Mr. Frisbie resigned from Appellant on February 25, 2010, and that he did not breach his fiduciary duty to the corporation. For the reasons that follow, we agree that the trial court erred and, therefore, reverse the final judgment and remand for further proceedings.

Appellee Frisbie was a 49% stockholder, officer, and director of Appellant, which was in the business of providing pain reduction and edema control. Roger Bowers was the 51% shareholder and also an officer and director. Bowers developed the business concept, and Frisbie handled the sales and marketing due to his contacts in the medical field. On February 25, 2010, the two men met at a restaurant for what Bowers thought would be a discussion about the direction of the company. During that meeting, Frisbie presented Bowers with a buy-out or stock purchase agreement. The agreement provided that Appellant would pay to Bowers 10% of its net earnings for five years in return for the sale of his stock and his agreement to serve as a training, managerial, or sales consultant to Appellant. Frisbie told Bowers that he had ten days within which to respond to the agreement, and the meeting ended. Bowers emailed Frisbie shortly thereafter expressing his frustration and his rejection of any offer that placed him in financial jeopardy. The two men had no other communication during the next ten days. On Friday, March 5, 2010, Frisbie mailed by signature mail a resignation letter to Bowers wherein he wrote in part, “Since we last spoke regarding my hesitancy to continue our partnership in [Appellant] it has become evident to me that you have no intention of working things out in the manner I suggested.” Frisbie stated that his resignation was “effective immediately.” The resignation letter was delivered to Bowers’ home in the afternoon on Monday, March 8, 2010. By that time, Frisbie had executed an agreement with Appellant’s sole supplier, formed his own corporation, Pain Science Solutions, Inc., contacted key customers, and was attempting to hire Appellant’s key employees. As found by the trial court, Appellant went from earning approximately $80,000 per month to earning $2,000 per month following Frisbie’s resignation. Appellant sued Frisbie in May 2010 for breach of fiduciary duty. The pretrial stipulation explained that Frisbie approached Bowers about taking control of Appellant, that Frisbie “subsequently resigned,” and that one of the two issues of fact that remained to be litigated was “[w]hen was the resignation effective, when it was tendered or when it was received.”

Following the bench trial on the issue of liability, the trial court entered an order finding no breach of fiduciary duty on Frisbie’s part and a final judgment in Fris-bie’s favor. In interpreting section 607.0842(1), Florida’s statute pertaining to the resignation of corporate officers, the trial court looked to Delaware case law interpreting Delaware’s corporate resignation statutes as being permissive and not requiring resignation through a written document. The trial court, in noting that section 607.0842(1) did not use the word “shall,” concluded that the statute was permissive rather than mandatory and that written notice should not be recognized as the exclusive method for officers or directors to disassociate themselves from their corporate duties and obligations. The court also determined that Mr. Fris-bie resigned during the February 25, 2010, meeting with Mr. Bowers because neither man could have retained any serious expectation that their business relationship would continue after the “confrontation.” The court concluded that Frisbie could not have breached any fiduciary duty based upon any actions he took after February 25 with respect to the clients, suppliers, or employees of Appellant. This appeal followed.

The issue of statutory interpretation is a question of law reviewable de novo. J.M. v. Gargett, 101 So.3d 352, 356 (Fla.2012). In construing a statute, an appellate court must first consider the plain meaning of the language used. Id. When the language is unambiguous and conveys a clear and definite meaning, that meaning controls unless it leads to an unreasonable result or is clearly contrary to legislative intent. Id.

Section 607.0842(1), Florida Statutes (2009), provides that “[a]n officer may resign at any time by delivering notice to the corporation” and that “[a] resignation is effective when the notice is delivered unless the notice specifies a later effective date.” Section 607.0807, Florida Statutes (2009), provides that “[a] director may resign at any time by delivering written notice to the board of directors or its chair or to the corporation” and that “[a] resignation is effective when the notice is delivered unless the notice specifies a later effective date....” (Emphasis added). Although both provisions became effective in 1990, no Florida case has addressed either statute.

As used in chapter 607, which addresses the Florida Business Corporation Act, the terms “deliver” and “delivery” mean “any method of delivery used in conventional commercial practice, including delivery by hand, mail, commercial delivery, and electronic transmission.” § 607.01401(7), Fla. Stat. (2009). “Notice” under chapter 607 must be in writing unless oral notice is “[e]xpressly authorized by the articles of incorporation or the bylaws, and [is] [Reasonable under the circumstances.” § 607.0141(l)(a)-(b), Fla. Stat. (2009). Notice by electronic transmission constitutes written notice. § 607.0141(1), Fla. Stat. (2009). If chapter 607 prescribes notice requirements for particular circumstances, those requirements govern. § 607.0141(7), Fla. Stat. (2009).

Although the trial court was correct in noting that Florida courts may rely on Delaware law to construe Florida corporate law, we have also explained that Florida courts are tasked with giving statutory language effect without resort to any canon of construction, if possible. See Batur v. Signature Props, of Nw. Fla., Inc., 903 So.2d 985, 994 n. 18 (Fla. 1st DCA 2005). While the trial court is correct that the statutes do not provide that an officer or director “shall” resign by delivering notice, such language would place the emphasis on requiring resignation rather than on the necessary method of resignation if an officer or director chooses to resign. We conclude that Florida’s corporate resignation statutes, along with the statutory definitions of “deliver” and “notice,” clearly and unambiguously provide the methods of resignation for corporate officers and directors. As such, reliance on Delaware law in this context is unnecessary.

With respect to the facts of this case, Appellee Frisbie was both an officer and director of Appellant. As a director, Fris-bie had to deliver written notice to Appellant of his resignation pursuant to section 607.0807. It is undisputed that the resignation letter was delivered to Bowers on March 8, 2010. Pursuant to Florida’s resignation statutes, Frisbie’s resignation became effective on that date, not during the February 25 meeting and not when the resignation was mailed on March 5.

Accordingly, we REVERSE the final judgment and REMAND "with instructions that the trial court determine whether Ap-pellee Frisbie breached any fiduciary duty to Appellant prior to his resignation.

CLARK, WETHERELL, and MAKAR, JJ., concur.

      . See Del. Code Ann. tit. 8, § 141(b) ("Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation.”); Del. Code Ann. tit. 8, § 142(b) ("Any officer may resign at any time upon written notice to the corporation.")

      . See Gen. Video Corp. v. Kertesz, C.A. No. 1922-VCL, 2008 WL 5247120 (Del.Ch. Dec. 17, 2008); Dionisi v. DeCampli, No. 9425, 1995 WL 398536 (Del.Ch. June 28, 1995); Bachmann v. Ontell, No. 7805, 1984 WL 8245 (Del.Ch. Nov. 27, 1984).

      . Although section 607.0842(1) pertaining to officer resignation does not specifically require the delivery of written notice, notice under chapter 607 must be in writing unless oral notice is expressly authorized by a corporation’s articles of incorporation or the bylaws and is reasonable under the circumstances. See § 607.0141(l)(a)-(b), Fla. Stat. (2009). Appellant’s articles of incorporation make no mention of notice, and its bylaws were not included in the record.

      . Although not dispositive of our decision, we note that even if Frisbie had been able to orally resign from Appellant, competent, substantial evidence does not support the trial court's determination that he did so during the February 25, 2010, meeting with Bowers. Neither of the parties advocated for such a finding below. They instead acknowledged that the resignation occurred subsequent to the meeting. Moreover, this was not a situation like those addressed in the Delaware cases cited by the trial court where Frisbie told Bowers ’that he wanted nothing more to do with Appellant. Rather, Frisbie wanted to expand his role in the corporation.


text:
    Walter DORTLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2726.
    District Court of Appeal of Florida, First District.
    April 24, 2013.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

LEWIS, and THOMAS, JJ., concur.

MAKAR, J., concurs with opinion.

MAKAR, J.,

concurs with opinion.

Appellant was convicted of dealing in stolen property for the theft of an air conditioning unit and sentenced to eight years’ imprisonment. On appeal, he asserts the prosecutor made several comments during closing arguments that constitute reversible fundamental error (no objection having been made). Among others, the comments included the prosecutor telling the jury that “the way I see it is this defendant is guilty as charged” and that the defense theory “does not make sense to me. It is not reasonable and I’m telling you it’s not.” The prosecutor also said “I’m a taxpayer in the [Sjtate of Florida” and for that reason the prosecution “can’t pick up everything under the sun and send it to the lab” for testing. Because no objection was made to the comments, the fundamental error standard applies. Under this standard I conclude that the comments, though improper, do not cumulatively require reversal. See Jones v. State, 571 So.2d 1374,1375(Fla. 1st DCA 1990) (holding that certain unobjected-to statements made by a prosecutor, although improper, did not constitute fundamental error).


text:
    Aaron FOLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4690.
    District Court of Appeal of Florida, First District.
    April 24, 2013.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Monique Rolla, Assistant Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted by a jury for burglary of a structure while armed, grand theft, theft of a firearm, possession of a firearm by a convicted felon, and possession of ammunition by a convicted felon. After reviewing the record, we conclude that the State correctly concedes that it failed to provide sufficient evidence of the value of the stolen property to prove count II, grand theft. See Marrero v. State, 71 So.3d 881 (Fla.2011).

We affirm Appellant’s conviction on counts I, III, IV and V, but vacate the conviction and sentence under count II, grand theft, and remand to the circuit court for entry of a judgment and sentence for petit theft in the second degree.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions consistent with this opinion.

THOMAS, WETHERELL, and ROWE, JJ., concur.


text:
    Karen MEARS, Petitioner, v. Amanda LAMB, Respondent.
    No. 1D12-5896.
    District Court of Appeal of Florida, First District.
    April 24, 2013.

      Anita J. Patel and Lisa A. Schlitzkus, Lake City, for Petitioner.
    Amanda Lamb, pro se, Respondent.
   PER CURIAM.

In petitioner’s action seeking replevin of property, the county court issued a Re-plevin Order to Show Cause, directing defendant to show cause why the property should not be delivered to petitioner “pending final adjudication of the claims of the parties” under section 78.067(2), Florida Statutes (1979). After the hearing, the county court issued a Final Judgment Denying Replevin, denying petitioner’s six causes of action.

Petitioner filed a direct appeal in circuit court, challenging the county court’s factual findings, and contending that the county court had erred as a matter of law by issuing a final judgment when the statute authorized only a preliminary determination of possession during the pendency of the litigation. The circuit court affirmed, stating that it would not disturb the county court’s factual determinations.

As both the language of the statute and case law make clear, a hearing on the issue of possession during the pen-dency of a replevin action cannot lead to a final adjudication on the merits. See Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, 399 So.2d 88 (Fla. 1st DCA 1981); JB Int’l, Inc. v. Mega Flight, Inc., 840 So.2d 1147 (Fla. 5th DCA 2003); Brown v. Reynolds, 872 So.2d 290 (Fla. 2d DCA 2004); Keybank Nat’l Ass’n, Inc. v. Passport Marine, Inc., 76 So.3d 1137 (Fla. 4th DCA 2012); Coastal Palms Holdings, LLC v. Paxton, 2013 WL 811479 (Fla. 2d DCA 2013).

By prematurely adjudicating the merits of this case and issuing a final judgment, based upon a proceeding that was preliminary in nature, the county court denied petitioner’s right to due process. Because the circuit court was thus obligated to reverse and remand, its affirmance constitutes a violation of a clearly By prematurely adjudicating the merits of this case and issuing a final judgment, based upon a proceeding that was preliminary in nature, the county court denied petitioner’s right to due process. Because the circuit court was thus obligated to reverse and remand, its affirmance constitutes a violation of a clearly established principle of law resulting in a miscarriage of justice. See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla.2003).

We GRANT the petition for writ of cer-tiorari.

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    David REYES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0190.
    District Court of Appeal of Florida, First District.
    April 24, 2013.

      David Reyes, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General; Meredith Hinshelwood and Donna A. Ge-race, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the July 6, 2012, order denying motion for postconviction relief in Duval County Circuit Court case number 16-1997-CF-011035-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

BENTON, C.J., ROWE and MARSTILLER, JJ., concur.


text:
    Derrick ALLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0060.
    District Court of Appeal of Florida, First District.
    May 17, 2013.
    Derrick Allen, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant-Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on July 20, 2010, in Duval County Circuit Court case number 16-2007-CF-004084-BXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

CLARK, MARSTILLER, and SWANSON, JJ„ concur.


text:
    Shaka Jamar COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6586.
    District Court of Appeal of Florida, First District.
    May 17, 2013.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Jean-Michel v. State, 96 So.3d 1043, 1045 (Fla. 4th DCA 2012)(holding that Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), is clearly limited to minors, and therefore, not applicable to a nineteen-year-old offender).

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    John J. BEATTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0067.
    District Court of Appeal of Florida, First District.
    May 17, 2013.
    John J. Beatty, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order filed on January 27, 2011, denying petitioner’s motion for postconviction relief in Duval County Circuit Court case number 16-1992-CF-12446-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeál.

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Willie WILLIAMS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D13-0374.
    District Court of Appeal of Florida, First District.
    May 17, 2013.
    Willie Williams, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

We treat the Florida Parole Commission’s motion for remand as a confession of error. In accordance therewith, the lower tribunal’s order denying mandamus relief is quashed and the matter is remanded for further consideration in light of Thomas v. Florida Parole Commission, 107 So.3d 517 (Fla. 1st DCA 2013).

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Christopher JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0582.
    District Court of Appeal of Florida, First District.
    May 17, 2013.

      Christopher Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the judgment and sentence rendered on November 30, 2011, in Santa Rosa County Circuit Court case number 2011-CF-000159-CFA, is granted. Upon issuance of mandate a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the services of appellate counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Montrail COOK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0594.
    District Court of Appeal of Florida, First District.
    May 17, 2013.
    Montrail Cook, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered on or about September 24, 2012, denying petitioner’s motion for postconviction relief in Leon County Circuit Court case number 2003-CF-001827, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    HEARTLAND EXPRESS, INC., OF IOWA, A Foreign Corporation, Petitioner, v. Mark FARBER, As Limited Guardian of the Property of Juan Torres, Respondent.
    No. 1D13-1624.
    District Court of Appeal of Florida, First District.
    May 17, 2013.

      E.T. Fernandez, III, and Brian K. Se-baaly of Fernandez Trial Lawyers, P.A., Jacksonville, for Petitioner.
    Dennis R. Sehutt and Jeffrey D. Devon-chik of Sehutt, Schmidt, & Noey, Jacksonville, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is DENIED. See Travelers Indemnity Co. v. Fields, 262 So.2d 222 (Fla. 1st DCA 1972). Petitioner’s motion for stay and respondent’s motion to dismiss are denied as moot.

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Jeffrey HAWKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1126.
    District Court of Appeal of Florida, First District.
    June 27, 2013.
    Jeffrey Hawkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is dismissed as moot.

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


text:
    James M. CROSS, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-1821.
    District Court of Appeal of Florida, First District.
    June 27, 2013.

      James M. Cross, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

This petition for writ of habeas corpus challenges 2003 judgments and sentences in Leon County Circuit Court case number 02-03364-AF. The petition is dismissed. See Baker v. State, 878 So.2d 1236 (Fla. 2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Due to petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking his convictions and sentences, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla. 1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because petitioner’s continued and repeated attacks on his convictions and sentences have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Leon County Circuit Court case number 02-03364-AF. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R.App. P. 9.410.

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    Shernerd RICHARDSON, Petitioner, v. William CERVONE, State Attorney, By and on Behalf of D.O.C.: Michael D. Crews, Secretary, Florida Department of Corrections, Respondent.
    No. 1D12-5516.
    District Court of Appeal of Florida, First District.
    July 1, 2013.
    Shernerd Richardson, pro se, Petitioner.
    No appearance for Respondent.
   ORDER ON ADDITIONAL SANCTIONS

PER CURIAM.

We issued an opinion in this case on February 8, 2013, which prohibited petitioner from any future pro se filings in this court concerning the judgments and sentences in Levy County Circuit Court case number 38-2005-CF-00252. See Richardson v. Cervone, 116 So.3d 449 (Fla. 1st DCA 2013). On March 5, 2013, petitioner filed an amended petition for writ of habe-as corpus in this case challenging the same judgments and sentences. Because this was a violation of the opinion, petitioner was directed to show cause why further sanctions should not be imposed against him. Petitioner has filed a notice indicating that he declines to respond to the show cause order on sanctions.

Because petitioner has violated the terms of this court’s February 8, 2013, opinion, petitioner is barred from future pro se filings in this court. The clerk of the court is directed not to accept any future filings from Shernerd Richardson or by any party on his behalf unless the pleadings are filed by a member in good standing of The Florida Bar. A certified copy of this opinion shall be provided to the Florida Department of Corrections to be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the Department as provided in section 944.279, Florida Statutes (2013).

No further pleadings will be entertained in this case, including any motion for rehearing.

PADOVANO, MARSTILLER, and SWANSON, JJ., concur.


text:
    Jessie J. HURRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2150.
    District Court of Appeal of Florida, First District.
    July 10, 2013.
    Rehearing Denied Aug. 30, 2013.
    Jessie J. Hurry, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

LEWIS, C.J., WOLF and PADOVANO, JJ., concur.


text:
    Joseph Christian FONTANA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2593.
    District Court of Appeal of Florida, First District.
    July 19, 2013.
    Rehearing Denied Aug. 30, 2013.
    Joseph C. Fontana, 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.

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


text:
    Demetrius BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1661.
    District Court of Appeal of Florida, First District.
    July 30, 2013.
    Demetrius Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

BENTON, SWANSON, and OSTERHAUS, JJ„ concur.