text:
    Jarvis KING, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-3422.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2014.
    Jarvis King, pro se.
   PER CURIAM.

Jarvis King appeals the order denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. King’s motion was denied after many of his claims were stricken with leave to amend. When the postconviction court did not receive a timely amendment, the court entered a final order denying relief. On appeal, King filed a notice to this court accompanied by an amended motion with certificate of service reflecting that the motion was indeed timely filed under the mailbox rule, see Haag v. State, 591 So.2d 614, 617 (Fla.1992), although it apparently did not reach the court. Because the postconviction court was not presented with this amended motion, we affirm the order on appeal without prejudice to King to refile his amended motion with the postconviction court within sixty days of the date of the issuance of the mandate in this case. Should King elect to refile his motion, the postconviction court should presume his motion was filed on the date listed on the certificate of service. See Fla. R. App. 9.420(a)(2); Rosier v. State, 144 So.3d 604, 606 (Fla. 2d DCA 2014) (“Absent proof otherwise, the date reflected on the certificate of service of a pro se inmate’s document is presumed to be the date on which the document was filed.” (citations omitted)). The State, however, may litigate the timeliness of the motion. See id. (noting that when the presumption of filing on the date listed on an inmate’s certificate of service arises, “the burden shifts ‘to the State to prove that the document was not timely placed in prison officials’ hands for mailing’ ” (quoting Thompson v. State, 761 So.2d 324, 326 (Fla. 2000))).

Affirmed.

SILBERMAN, WALLACE, and SLEET, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Zeng JEAN-JACQUES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4696.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2014.
    Zeng Jean-Jacques, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the July 24, 2014, order in Alachua County Circuit Court case number 01-2011-CF-004280-A. See Fla. R. App. P. 9.140(b)(1)(D). Upon issuance of mandate in this cáuse, 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). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

LEWIS, C.J., VAN NORTWICK and ROWE, JJ., concur.


author: DAVIS, Chief Judge.

text:
    Jarmeel Earl BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5360.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2014.
    Howard L. Dimmig, II, Public Defender, and Marie-Louise Samuels Parmer, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Chief Judge.

Jarmeel Bennett challenges his convictions and sentences for burglary with a firearm while concealing his identity with a hood or mask and attempted robbery with a firearm while concealing his identity with a hood or mask. We affirm without prejudice to Bennett’s raising his claims of ineffectiveness of trial counsel as set forth in the instant appeal in a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Derisma v. State, 14 So.3d 262, 263 (Fla. 4th DCA 2009).

Affirmed.

WALLACE and CRENSHAW, JJ., Concur.


text:
    Paul FLAIG, Petitioner, v. COQUINA PALMS HOMEOWNER’S ASSOCIATION, INC., Respondent.
    No. 5D14-3272.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    Adam M. Bird, of GrayRobinson, P.A., Melbourne, for Petitioner.
    Alan P. Whitehead, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Respondent.
   PER CURIAM.

Paul Flaig seeks a writ of certiorari quashing the trial court’s order denying his motion to disqualify counsel for the respondent, Coquina Palms Homeowner’s Association, Inc. (“Coquina”). At the evi-dentiary hearing on his motion, Flaig’s testimony established a prima facie case for disqualification of counsel for Coquina. However, before any other witnesses were called, counsel for Coquina requested that the trial court deny the motion. Coquina states in its Response that in making this request, it “in essence ... moved for directed verdict or involuntary dismissal.” The trial court granted the motion and entered the order we now review. Both Flaig and Coquina request that, if this court finds that the trial court erred in granting the order under review, we quash the order and remand for a full evidentiary hearing.

We conclude that the trial court erred in depriving Flaig of a full evidentiary hearing and thereby departed from the essential requirements of the law, causing material injury that cannot be remedied on appeal. See Yang Enters., Inc. v. Georgalis, 988 So.2d 1180, 1182-88 (Fla. 1st DCA 2008) (“Certiorari is the appropriate remedy to review orders denying a motion to disqualify counsel. Accordingly, Petitioners had to show that the circuit court departed from the essential requirements of law and that this departure resulted in a material injury that cannot be corrected on postjudgment appeal.” (citing Zarco Supply Co. v. Bonnell, 658 So.2d 151,158 (Fla. 1st DCA 1995))); Harvey E. Morse, P.A. v. Clark, 890 So.2d 496, 497 (Fla. 5th DCA 2004) (same); Anderson Trucking Serv., Inc. v. Gibson, 884 So.2d 1046, 1049 (Fla. 5th DCA 2004) (same). Accordingly, we grant the petition for certiorari, quash the order under review, and remand this ease for a full evidentiary hearing.

Petition for Writ of Certiorari GRANTED; Order QUASHED; and case REMANDED.

SAWAYA, ORFINGER, and LAWSON, JJ., concur.


text:
    Justin Eric VAUGHN a/k/a Justin Vaughn, Appellant, v. WELLS FARGO BANK, N.A., etc., Appellee.
    No. 5D14-461.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.

      Justin Eric Vaughn, Altoona, pro se.
    C. Cory Mauro, Michael K. Winston, Dean A. Morande, of Carlton Fields Jor-den Burt, P.A., West Palm Beach, for Ap-pellee.
   PER CURIAM.

Justin Vaughn appeals the non-final order denying his motion to quash service of process. He argues that the court erred in denying his motion where the summons was not sealed as required by Florida Rule of Civil Procedure 1.070(a), which specifically requires process to be “issued ... under the clerk’s or the judge’s signature and the seal of the court_” (Emphasis added). Section 28.071, Florida Statutes (2013), also requires that the summons contain the seal of the clerk of court, which seal “may be an imprint or impression type seal and shall be registered with the Department of State.” Because Vaughn challenged the issuance of the summons on this ground, it was the burden of Wells Fargo to produce the original summons to prove it was issued under seal- pursuant to the statute and rule. See Re-Emp’t Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467 (Fla. 5th DCA 2007). The record does not reveal that Wells Fargo filed the original summons, so that document is not in the record. A copy of the summons is in the record, but it does not indicate that the required seal is affixed to the original document. Therefore, we reverse the order denying Vaughn’s motion to quash service of process and remand this case to the trial court. See Woide v. Fannie Mae, 116 So.3d 1281 (Fla. 5th DCA 2013) (reversing the order denying a motion to quash service of process because the summons was not signed by the clerk and was not sealed by the court’s official seal).

REVERSED; REMANDED.

SAWAYA, COHEN, and WALLIS, JJ., concur.

      . This court has jurisdiction under rule 9.130(a)(3)(C)(i) of the Florida Rules of Appellate Procedure, which provides that an order determining personal jurisdiction is appeal-able before rendition of the final judgment. An order on a motion to quash service of process is one that determines personal jurisdiction and is thus appealable. Re-Emp’t Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 470 (Fla. 5th DCA 2007).


author: EVANDER, J.

text:
    Marsaias WADE, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-609.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.

      James S. Purdy, Public Defender, and Lisa A. Haskins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Marsaias Wade was charged in a five-count information with the following: Count I — attempted carjacking; Count II — kidnapping with intent to commit a felony with a firearm; Count III — aggravated assault with a firearm; Count IV— conspiracy to commit robbery with a deadly weapon; and Count V — attempted robbery with a firearm. The jury acquitted Wade on Count II, returned a guilty verdict on Count III for the lesser-included offense of assault, and found him guilty as charged on Counts I, IV and V. The trial court subsequently set aside the conviction on Count I.

On appeal, Wade challenges only his convictions for conspiracy to commit robbery with a deadly weapon (Count IV) and attempted robbery with a firearm (Count V). He argues that the trial court erred in failing, upon request, to instruct the jury on the lesser-included offenses of conspiracy to commit robbery and attempted robbery. We reverse.

The State properly concedes that the trial court committed error in failing to instruct the jury on the lesser-included offense of attempted robbery. See Gomez v. State, 5 So.3d 700, 701-02 (Fla. 5th DCA 2009) (“A trial court must instruct the jury on necessarily-included lesser offenses when a timely request is made to do so.”). However, the State argues that Wade failed to preserve for appellate review his claim regarding the failure to instruct the jury on the lesser-included offense of conspiracy to commit robbery. We disagree. Although defense counsel’s argument at the charge conference was less than artful, the trial court seemed clearly aware of the request:

I’m going to go out on a limb and deny the request. Although, again, I understand exactly what you’re saying. With the exception of the requested lessors on the attempt and conspiracy charges, are there any additional or different lessers that you would be requesting?

(Emphasis added). Because the trial court was aware of defense counsel’s requests and denied the same, the purpose for the contemporaneous objection rule was satisfied and the issue preserved. See Pacheco v. State, 698 So.2d 598, 595 (Fla. 2d DCA 1997) (holding issue was preserved where record reflected that trial court believed defense counsel had made objection to admissibility of evidence and overruled that objection); see also Daniels v. State, 121 So.3d 409, 417 (Fla.2013) (“The salient purpose of the rule of contemporaneous objection is to place the trial judge on notice that error may have been committed and provide the court with an opportunity to correct the error at that time.”).

REVERSED and REMANDED for a new trial on the charges of conspiracy to commit robbery with a deadly weapon and attempted robbery with a firearm.

BERGER and LAMBERT, JJ., concur.

      . Wade was sentenced to fifteen years on the attempted robbery with a firearm charge and five years’ probation on the conspiracy to commit robbery with a deadly weapon count. On the assault charge, Wade was sentenced to "time served.”


author: LAMBERT, J.

text:
    Andre Pierre BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-653.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAMBERT, J.

Andre P. Brinson appeals the judgment and sentence adjudicating him guilty of felony battery after a jury trial. Because we find that the cumulative effect of the State’s improper comments in both its opening statement and closing argument deprived Brinson of a fair trial, we reverse and remand for a new trial.

At the time of the incident, Brinson and the alleged victim, Shelby Graham, were living in the same apartment and were romantically involved. Graham was the State’s key witness at trial. There, she testified that Brinson “came in behind me and grabbed me by my hair and drug me through the living room and threw me down on my bed and then I fell onto the floor.” As a result, Graham suffered a fracture to her left arm that required surgery using six pins to correct. According to Graham, Brinson threw her down because he thought she had sex with another man who had previously visited then-apartment to use Graham’s crack pipe.

Graham’s credibility was a critical issue at trial. She testified that she did not report the incident until several days later and that, in the meantime, she told her mom and Brinson’s aunt, Sheila Debose, that she sustained her injury by falling. Debose testified that when she picked Graham and Brinson up the day after the incident, Graham told her that she had been in a fight with her female roommate and that she was laughing and talking with Brinson in the car. Officer Michael Math-yas, a defense witness who visited Graham at her apartment a day or two after the incident, testified that Graham was hesitant to talk about the altercation in any detail and was primarily concerned with having Brinson evicted from her apartment because he was allegedly stealing money from Graham to buy drugs. In light of this evidence, Brinson’s primary defense at trial was that Graham fabricated her story in order to have Brinson removed from her apartment.

Approximately four days after the incident, Graham went to the police station to obtain an injunction against Brinson. At that time, according to Officer Robert Claudio, Graham was “hesitant” to give information about the incident or to cooperate. Nevertheless, after speaking with Brinson, Officer Claudio felt he had sufficient probable cause to file a complaint affidavit. The State subsequently charged Brinson by information with felony battery for allegedly striking Graham against her will, causing great bodily harm.

At the conclusion of the jury trial, Brin-son was adjudicated guilty and sentenced to five years in the Department of Corrections. He now argues that the prosecutor’s opening and closing remarks deprived him of a fair trial.

There are two standards of review applicable in this case. Where Brin-son objected to the allegedly improper comments, and his objection was overruled, the standard of review is abuse of discretion. McArthur v. State, 801 So.2d 1087, 1040 (Fla. 5th DCA 2001) (citing Moore v. State, 701 So.2d 545 (Fla.1997)). The standard of review is also abuse of discretion where Brinson moved for a mistrial and his motion was denied. Salazar v. State, 991 So.2d 364, 371-72 (Fla.2008). In contrast, where Brinson did not object to or move for a mistrial based on the allegedly improper comments, the standard of review is fundamental error. Thomas v. State, 748 So.2d 970, 985 n. 10 (Fla.1999). “In order for an error to be fundamental and justify reversal in the absence of a timely objection, ‘the error 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.”’ Randolph v. State, 853 So.2d 1051, 1068 (Fla.2003) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)).

The prosecutor made the following remarks during opening statements: [Graham] tells Officer Claudio what happened and he files a complaint affidavit, arrest report.

He doesn’t actually arrest the defendant because of the time — the time delay. The way they do it, the procedure, they file a complaint affidavit. My office reviews these complaint affidavits and whether they should file charges or not. And our office did decide to file charges. That’s why we’re here today.
As I said before, [Graham] is a victim in the truest sense. It’s common with domestic violence victims that they don’t report immediately—

Brinson immediately objected to these remarks and his objection was properly sustained. It was improper for the prosecutor to reference the State’s charging decision during opening statements because it implied “that the prosecution would not have been commenced, and that [the prosecutor] personally would not have participated unless it had already been determined that [the] defendant was guilty.” United States v. Garza, 608 F.2d 659, 664-66 (5th Cir.1979). However, because Brinson made no request for further action from the court after his objection was sustained, these remarks alone do not warrant a new trial. See Clark v. State, 363 So.2d 331, 335 (Fla.1978), abrogated on other grounds by State v. DiGuilio, 491 So.2d 1129 (Fla.1986) (“When there is an improper comment, the defendant, if he is offended, has the obligation to object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection.”).

Next, during the prosecutor’s initial closing argument, the prosecutor remarked that Graham had never been convicted' of a felony. Brinson’s objection to this statement was properly sustained because there were no facts in evidence suggesting that Graham had never been convicted of a felony. See Charriez v. State, 96 So.3d 1127, 1128 (Fla. 5th DCA 2012) (stating that it is improper for a prosecutor to refer to facts not in evidence). The prosecutor’s statements also constituted improper bolstering. See Hutchinson v. State, 882 So.2d 943, 953 (Fla.2004) (“Improper bolstering occurs when the State ... indicates that information not presented to the jury supports the witness’s testimony.”), abrogated on other grounds by Deparvine v. State, 995 So.2d 851 (Fla.2008) (“Improper bolstering occurs when the State ... indicates that information not presented to the jury supports the witness’s testimony.”); cf. Welch v. State, 940 So.2d 1244, 1246 (Fla. 2d DCA 2006) (holding that “it was error for the trial court to allow the State to question the confidential informant on direct examination about her lack of felony charges” when there was no prior attack of the witness’s credibility). At that time, Brin-son moved for a mistrial. However, the trial court deferred argument on the motion and directed Brinson to give argument at the end of all closing arguments.

The prosecutor’s most egregious remarks occurred during his rebuttal closing argument, which began as follows:

MR. SMITH: So mad — the defendant is — Shelby Graham is mad and wanted to get back at the defendant. That’s why she made up this elaborate story with all this timeline so we could eventually be sitting here today to determine if Brinson committed this crime or not. Is Shelby Graham that elaborate? I mean you all saw her today. Is she that — is she all there enough to come up with all this — this whole story, how it happened and to get you here today all to sell this to get back at Brinson? Is that why we’re here today?
Or are we here — she’s simply telling the truth. She’s having to cry out. Finally she gets enough support through her mother, through the victim advocate, and through the officer. Someone’s, finally going to listen to her.
The State Attorney’s Office files on complaint affidavits every day. Our office — I mean there’s a reason that process exists. And that’s a — the reason is just like this. Victims aren’t very— when things happen like. this, victims don’t usually — domestic violence victims don’t want to go want to go [sic] forward a lot of the times. It doesn’t mean the crime did not happen. But they don’t want to go forward. And there’s a number of reasons for that. A lot of them have to do with fear.
MS. MORRIS: Objection; facts not in evidence.
THE COURT: Be overruled.
MR. SMITH: A lot of them have to do with fear. A lot of them have said they think the defendant or the person actually loves them. And they may but he still might get angry and do something. It doesn’t mean the crime didn’t happen.
The State — we actually have an obligation to stand up for victims that don’t won’t stand up for themselves. And I’ll submit to you, after some time, finally Shelby could stand up for herself. But the State has an obligation to file on cases like this to protect victims that need to be protected.
MS. MORRIS: Objection. Sending a message.
THE COURT: Be overruled.
MR. SMITH: So we’re following up as a branch of the State Attorney’s Office on this obligation. And that’s why we’re here today. The State did think it was worth our time to pursue this.
MS. CROY: Objection; improper personal opinion.
THE COURT: You are getting close to that, Mr. Smith. So I’ll sustain that objection.
MR. SMITH: Okay. Shelby Graham is a victim and a victim in the truest sense. She’s a victim of her own mental deficiencies. She’s a victim of addiction. And Andre Brinson preyed on these vulnerabilities. He used these addictions. He used these deficiencies to take advantage of Graham. And he wholeheartedly took advantage of this girl.
What gives us evidence that he took advantage of her? First of all, Brinson didn’t have a job. He wasn’t working. He comes in — testimony is he comes in and stays one night. He stays another night. Next thing you know he’s not leaving. He moved himself in — willingly moved himself in into Shelby Graham’s apartment. He’s not on the lease. She’s paying the whole rent.
Control, manipulation, all things here. She didn’t have the wherewithal to stand up for herself, to kick him out. She thought Brinson — mistakenly, she thought Brinson cared for her. She didn’t want this to happen. She probably liked Brinson. I guarantee you she liked Brinson. But Brinson used all these vulnerability to his advantage.
He moves in with her. No job. He starts siphoning off her disability check. He uses — her oum money that she gets for disability, he uses that to fuel his own crack addiction. And in the meantime gets Graham addicted to crack.
MS. CROY: Objection; facts not in evidence.
MS. MORRIS: Objection; facts not in evidence. Sorry.
MS. CROY: Sorry, Judge.
THE COURT: Objection be overruled. The Jury is going to have to rely on their own recollections of the testimony.
MR. SMITH: So we have a victim here who’s on Lithium, Prozac. She suffers from bipolar, schitzoaffective disorder, depression, I mean all these things. And here comes Brinson. Moves himself in. Exploits her. And he exploited her emotionally. Exploited her financially. And he exploited her physically on September 6th, 2013.
Tells her to get her ass home. She comes home. He gets her. Tells his friends to leave. “Get out of here. This is none of your business.” She gets out of the truck. She gets in there. He grabs her by her hair, drags her through the living room. Gets in the bedroom and pushes her, throws her down, [emphasis added]

The prosecutor’s closing remarks regarding Graham’s decision to come forward and the State’s filing decision were improper not only because .they referred to facts not in evidence, as objected to, but also because they implied that the State only charges those who are guilty, bolstered the credibility of the police witnesses, and evinced improper personal opinion of the prosecutor. For example, there were no facts in evidence to suggest that, due to fear, “domestic violence victims don’t want to go forward a lot of times.” In fact, the prosecutor’s numerous attempts to elicit such evidence throughout the trial were repeatedly objected to and the objections were all sustained, putting the prosecutor on notice that this line of questioning and argument were improper.

In addition, the prosecutor’s repeated remarks that this case is the reason this process exists and that the State has an “obligation” to protect victims like Graham are fairly susceptible to interpretation as an attempt “to impress on the jury that the government’s vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.” Ruiz v. State, 748 So.2d 1, 4 (Fla.1999) (quoting Garza, 608 F.2d at 662); see also Johns v. State, 832 So.2d 959, 962 (Fla. 2d DCA 2002) (“An argument that the State only charges those who are guilty is improper.”). Indeed, later in the prosecutor’s closing argument, the prosecutor implied that the State had additional information not presented at trial to support its position and that the prosecutor’s prior review of the facts was superior to what was presented at trial:

But you got to remember who Sheila Debose is. She’s a four-time convicted felon. She is Andre Brinson’s aunt. She definitely has his interest at heart here, his interest — you got to consider that when you judge her credibility. She denies ever taking him to buy crack. I think it’s pretty clear they went and bought crack by the defense’s own admission when they were up here arguing. She denies that. I mean she— there’s some things here that come — that don’t scratch the surface.
Now, the State — the State doesn’t make up the facts. It takes them as they come. Now, this whole story— when it came, we took it as it came. We put the evidence — that is — we can’t make up the facts. The facts are the facts. Does — do they seem like it makes sense at that time? Maybe not. But those are the facts, [emphasis added]

By repeatedly referring to the State’s charging decision, this line of argument also suggested that the State’s decision to charge Brinson, and Officer Claudio’s testimony, should be given special credence by the jury because the State concurred with Officer Claudio’s probable cause determination following its own investigation of the case. See Garza, 608 F.2d at 665 (“This entire line of argument presumed that the whole government apparatus, and the prosecutor individually, had reached a determination of the defendant’s guilt before the trial and implied that the jury should give weight to this fact in making its determination.”); Hutchinson, 882 So.2d at 953 (“Improper bolstering occurs when the State places the prestige of the government behind the witness....”). Accordingly, the trial court abused its discretion in denying Brinson’s repeated objections to this line of argument.

The prosecutor then made argument seeking to arouse sympathy for the victim and vilifying Brinson. For example, the prosecutor remarked that Graham is a victim “in the truest sense,” “a victim of her own mental deficiencies,” and “a victim of addiction.” The dispositive issue in this case was whether the State could prove beyond a reasonable doubt that Brinson struck Graham against her will, causing great bodily harm. Nevertheless, the prosecutor repeatedly argued that Brinson “used all these vulnerability [sic] to his advantage,” and argued that Brinson “exploited” Graham emotionally, financially, and physically to fund his own crack addiction. The prosecutor continued this line of argument later in his closing:

I think the trip to the Hold-a-Cheek, it’s a great illustration of the defendant’s control and manipulation here. I mean it wasn’t his check that they’re going to get a cash advance on. It was Shelby Graham’s disability cheek that he was using her to fund his crack addiction. [emphasis added]

And again, even later:

Where did all this money go? She gets a disability check on the 3rd. Rent’s due on the 5th. They still haven’t paid rent on the 7th. The whole $900 is already gone. Shelby testified that she didn’t spend all that money. It was Brinson taking the liberty with Shelby Graham’s money to spend how he pleases. I mean he had it all figured out. He’s got a place to live that he’s not paying for. He’s got a roof over his head he’s not paying for. He’s got unlimited funds. He’s got it great, [emphasis added]

It is improper for the prosecutor to appeal to the sympathy for the victim where “the natural effect of which would be hostile emotions toward the accused.” Edwards v. State, 428 So.2d 357, 359 (Fla. 3d DCA 1983). “It is the responsibility of the prosecutor to seek a verdict based on the evidence without indulging in appeals to sympathy, bias, passion or prejudice.” Id. By explicitly stating that Brin-son took advantage of Graham’s mental vulnerabilities, and by arguing that Brin-son stole money from Graham’s disability check to fund his own crack addiction, the prosecutor improperly intended to arouse hostile emotions towards Brinson. In addition, as argued by Brinson on appeal, the prosecutor’s remarks implicitly encourage the jury to find Brinson guilty because he is a “predatory exploiter,” a “fact” that is wholly irrelevant to the charge of felony battery. Thus, although these statements were not objected to, when viewed together with the previous improper comments, the statements constituted fundamental error. See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1036 n. 32 (Fla.2000) (Pariente, J., concurring) (“[I]f the attorney has made objections to some of the closing argument remarks, which have been overruled, the fact that all of the objectionable remarks have not been preserved by subsequent objection does not preclude the appellate court from reviewing the cumulative effect of the objected-to and unobjected-to remarks.”). These remarks were especially harmful when coupled with the State’s improper accusation that Brinson is actually responsible for Graham’s crack addiction, which was properly objected to as a fact not in evidence, but was incorrectly overruled.

At the conclusion of closing arguments, Brinson argued that the two instances when his objections were sustained warranted a mistrial. The first objection was to bolstering Graham’s credibility by referring to her lack of felony convictions, and the second objection was to improper personal opinion when the prosecutor stated, “The State did think it was worth our time to pursue this.” Brinson also recounted the additional objections that were overruled, such as when the prosecutor stated that victims normally do not come forward as a result of fear, and that “the State has an obligation to file on cases like this to protect victims that need to be protected.” The trial court denied the motion, believing that the errors did not rise to the “level of a mistrial.”

“A motion for mistrial should be granted when it is necessary to ensure that a defendant receives a fair trial.” Morton v. State, 972 So.2d 1088,1089 (Fla. 5th DCA 2008) (citing Power v. State, 605 So.2d 856 (Fla.1992)). “In order to determine whether improper remarks constitute reversible error, they should be reviewed within the context of the closing argument as a whole and considered cumulatively within the context of the entire record.” McArthur, 801 So.2d at 1040; see also Charriez, 96 So.3d at 1128 (stating that “we do find merit to Charriez’s claim that the cumulative effect of the improper comments made by the prosecutor during closing argument denied him a fair trial”); Johns, 832 So.2d at 963 (“While no one of the comments standing in isolation would have required a new trial, this court must look at the entire trial record when considering whether the comments at issue are of such a nature as to destroy the fairness of the proceeding.”).

Here, even if each error mentioned above does not require reversal by itself, we conclude that Brinson was denied a fair trial due to the cumulative effect of the prosecutor’s improper comments in both opening statements and closing arguments. In summary, during opening statements, the prosecutor improperly referred to the State’s charging decision. During closing arguments, the prosecutor bolstered the credibility of the victim by referring to facts not in evidence and repeatedly referred to the State’s charging decision, thereby mentioning additional facts not in evidence and rendering improper opinion. These errors were particularly harmful because they suggested that special weight should be given to Graham’s testimony, especially since the issue of whether Graham’s “story” was fabricated was Brinson’s primary defense at trial. In addition, the prosecutor appealed to sympathy for the victim due to her mental and physical deficiencies, argued that Brinson exploited her vulnerabilities to fund his own crack addiction, and argued that Brinson in fact caused Graham’s crack addiction, a fact wholly unsupported by the evidence. We conclude that when the properly preserved comments are combined with the unobjeeted-to acts of prose-cutorial overreaching, “the integrity of the judicial process has been compromised and the resulting convictions and sentences irreparably tainted.” Ruiz, 743 So.2d at 7. Accordingly, we find that the trial court abused its discretion in denying Brinson’s motion for mistrial, and a new trial is required. See D Ambrosio v. State, 736 So.2d 44, 48 (Fla. 5th DCA 1999).

Counsel are entitled to wide latitude in their closing arguments and may advance all legitimate arguments and draw logical inferences from the evidence. See McArthur, 801 So.2d at 1039^40. Moreover, prosecutors in specific are not limited to a robotic presentation on behalf of the State. See Diaz v. State, 797 So.2d 1286, 1287 (Fla. 4th DCA 2001). However, “[a] criminal trial is a neutral arena wherein both sides place evidence for the jury’s consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury’s view with personal opinion, emotion, and nonrecord evidence.” Ruiz, 743 So.2d at 4. Unfortunately, prosecutorial misconduct in closing argument is neither a new nor fading phenomenon. See, e.g., Crew v. State, 146 So.3d 101, 111 (Fla. 5th DCA 2014) (holding that “[t]he cumulative effect of the prosecutor’s comments, which as seen above are well-documented errors, denied Appellant a fair trial”); Freeman v. State, 717 So.2d 105, 106 (Fla. 5th DCA 1998) (holding that “[t]he prosecutor’s comments during closing argument collectively rise to the level of being ‘so prejudicial as to vitiate the entire trial’ ” (quoting State v. Murray, 443 So.2d 955, 956 (Fla.1984))). We remind counsel that unprofes-sionalism not only affects the parties in the immediate proceeding but adversely affects the perception of justice itself. Our profession has never been and should never devolve into a “win at all costs” mentality. If it does, we all lose.

REVERSED and REMANDED for a new trial.

EVANDER and BERGER, JJ., concur.

      . Ms. Croy and Ms. Morris were Brinson's attorneys below.

      . For example, the prosecutor asked Officer Claudio, "What observations have you made about domestic violence victims and their willingness to provide you information to assist in your investigation?” The trial court sustained Brinson’s objection on relevance grounds before Officer Claudio could answer.
      After talking about Graham’s demeanor, the prosecutor then asked him if it is a common occurrence for alleged victims to be hesitant during domestic violence investigations. The trial court again sustained Brinson’s objection. Next, at the request of Brinson, the court instructed the jury to disregard the following response by the officer: “Well, usually when you deal with domestic violence people, they’re never really forthcoming with information because they are fearful. They hesitate to — ” Finally, during his cross examination of Officer Mathyas, Brinson’s objection to the prosecutor's following question was similarly sustained: "Isn’t it true domestic violence victims often are hesitant to talk to the police?”

      . There are at least three examples of this in the prosecutor’s rebuttal closing argument:
      (1) "Our office — I mean there’s a reason that process exists. And that’s a — the reason is just like this”; (2) "The State — we actually have an obligation to stand up for victims that don’t won't stand up for themselves ... the State has an obligation to file on cases like this to protect victims that need to be protected”; (3) "So we’re following up as a branch of the State Attorney’s Office on this obligation. And that's why we're here today. The State did think it was worth our time to pursue this.”

      . The trial court did sustain Brinson’s later objection to this line of argument.


text:
    William T. MORRISON, Jr., Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D13-5556.
    District Court of Appeal of Florida, First District.
    Jan. 2, 2015.

      William T. Morrison, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Shirley Wilson Durham, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant William T. Morrison, an inmate in the custody of the Florida Department of Corrections (FDOC), seeks review of an order of the Leon County Circuit Court which dismissed his petition for writ of mandamus as moot. We agree that the order of dismissal was premature, and we therefore reverse that order and remand this matter to the circuit court for further proceedings.

Morrison filed four sets of inmate grievances which complained that the FDOC was not processing his inmate mail appropriately. The first grievance claimed that mail that Morrison received from a reporter from the Kansas City Star was not treated as privileged pursuant to Florida Administrative Code Rule 38-210.103. The second grievance disputed the FDOC’s processing of Morrison’s mail from the Florida Bar and claimed that such mail was also privileged under the same rule. The third grievance complained that FDOC was not properly processing privileged mail from a news outlet called “Prison Legal News.” The fourth and final set of grievances alleged that the FDOC was continually failing to treat correspondence from a private attorney, Lance T. Weber, as legal mail pursuant to Florida Administrative Code Rule 33-210.102.

The initial petition for writ of mandamus filed on March 18, 2010, sought review only of the denials of the grievances relating to the correspondence from the Kansas City Star and the Florida Bar. The appellant, however, moved to supplement the petition on October 6, 2011, to review the grievances relating to the correspondence from Prison Legal News, and that motion was granted via order of October 27, 2011. Prior to the lower tribunal entering a dis-positive ruling on the petition and supplemental petition, the petitioner filed a second motion to supplement on August 22, 2012, seeking to include the grievances regarding correspondence from Attorney Weber. No ruling was ever entered on that motion.

Attached to the August 22, 2012, motion to supplement, Morrison included administrative grievances which complained that his mail from Attorney Weber was not properly processed pursuant to Rule 33-210.102. He attached copies of the envelopes from Attorney Weber, which were clearly marked on their face “SPECIAL MAIL — LEGAL MAIL,” “TO BE OPENED ONLY IN PRESENCE OF ADDRESSEE,” and “CONFIDENTIAL ATTORNEY-CLIENT WORK PRODUCT.” The envelope bears a handwritten note, appearing to be from FDOC staff, which reads “We called these people & let them know this is NOT considered legal mail — only info & questionair [sic] material.” Morrison also attached an affidavit filed by Attorney Weber, which asserted that the letter in question was an “investigatory letter” concerning an active case for which Mr. Morrison is a potential witness. The petitioner also attached copies of his grievances and denials relating to the processing of this mail.

Via order of October 21, 2013, the circuit court dismissed the petition for writ of mandamus as moot, without first ruling on the August 22, 2012, motion to supplement. In the order of dismissal, the court noted that the FDOC had argued in its response that Florida Administrative Code Rule 33-210.103 had “been clarified to include mail to and from the Florida Bar and news media, and that the grievance responses concerning the plaintiffs correspondence would be changed to reflect that.” Upon that basis, the court concluded that the petition was moot. As an initial matter, we note that we are not persuaded that a party’s promise to take some action in the future (here, the FDOC’s representation that it would change the petitioner’s grievances, having not yet done so) is sufficient to render a cause of action moot. That conclusion does not, however, form the primary basis for our decision.

In the instant appeal, Morrison raises several arguments which do not warrant further discussion. Among these, however, he argues that the petition for writ of mandamus was not moot because there was a pending motion to supplement the petition with additional claims (specifically, the claims regarding the processing of Morrison’s correspondence from Attorney Weber) at the time of the dismissal. The FDOC argues, in relevant part, that the circuit court correctly dismissed the petition as moot, and notes that “[i]f the trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999).

We agree with the appellant that the circuit court failed to complete its judicial labor by entering a ruling on the motion to supplement (for all practical purposes a motion to amend) the petition. Rule 1.190(a) provides:

A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the first pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar,-may so amend at any time within 20 days after it is served. Otherwise, a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within ten days after service of the amended pleading, unless the court orders otherwise.

Fla. R. Civ. P. 1.190(a) (emphasis added). Here, this was a subsequent motion to amend, and the decision to grant or deny that motion was within the discretion of the circuit court. Id. However, the circuit court did not enter any ruling on the motion.

We cannot conclude that the failure to rule on the petitioner’s motion to supplement the petition with the claims regarding the processing of his legal mail is subject to the “tipsy coachman” doctrine set forth in Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d at 644. Under Rule 33-210.102, “legal mail” is defined as “mail to and from various entities,” including “(b) state attorneys, (c) private attorneys, (d) public defenders, [and] (e) legal aid organizations.” See Fla. Admin. Code R. 33-210.102 (emphasis added). Rule 33-210.102(8)(d) requires that legal mail be processed the same way as privileged mail: opened in the presence of the inmate to determine that the mail is legal mail and contains no unauthorized items. See Fla. Admin. Code R. 3S-210.102(8)(d). During this process, only the letterhead and signature are to be read. See id. Here, the record shows that the FDOC opened and read letters from a private attorney to the appellant outside his presence and in all respects treated that correspondence as routine mail. As to the inclusion of a “questionnaire” with the correspondence, questionnaires — especially involving potential or pending litigation — are not included anywhere in the list of prohibited items found in Rule 33-210.102.

In view of the foregoing, we conclude that it was error for the trial court to fail to rule on the appellant’s motion to supplement the petition, and we cannot conclude, without more, that the error was harmless. We therefore REVERSE the circuit court’s order denying Morrison’s petition as moot, and we REMAND for further proceedings.

LEWIS, C.J. and VAN NORTWICK, J., concur.

ROWE, J., concurs in result.

      . That rule provides that "[i]nmates shall be permitted to receive only legal documents, legal correspondence, written materials of a legal nature (other than publications), and self-addressed stamped envelopes through legal mail.” Fla. Admin. Code R. 33-210.102(6). Items not permissible for inclusion in legal mail but permissible for inclusion in routine mail include "1. Greeting cards, blank greeting cards, stationery or other blank paper or envelopes; 2. Articles or clippings or other written materials of a nonlegal nature; 3. Photographs, unless related to the inmate’s legal case ... [and] 4. U.S. postage stamps, the value of which cannot exceed the equivalent of 20 (1 oz.) first class stamps.” Fla. Admin. Code R. 33-2I0.102(6)(a)(l-4). Furthermore, Rule 33-210.102 goes on to provide that items which are prohibited from routine mail are also prohibited from privileged mail, including "1. Non-paper items; 2. Items of a non-communicative nature such as lottery tickets or matchbooks; 3. Stickers or stamps (other than postage stamps, postal service attachments, and address labels affixed to outside of envelope); 4. Address labels (other than those affixed to the outside of the envelope); 5. Laminated cards or other laminated materials.” Fla. Admin. Code R. 33-210.102(6)(b)( 1-5).


text:
    Phillip L. WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4113.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Phillip L. Wood appeals his conviction of felony battery. Wood argues that the trial court erred in allowing a police officer to testify that the victim’s injuries “appeared to him” to be defensive, and summarily punishing. Wood for direct criminal contempt. He further contends that his trial counsel was ineffective by agreeing to an erroneous jury instruction on self-defense. We affirm Wood’s conviction of felony battery, but reverse his conviction of direct criminal contempt.

We conclude that the error in admitting the police officer’s testimony was harmless beyond a reasonable doubt. See Abdool v. State, 53 So.3d 208 (Fla.2010). Wood’s claim of ineffective assistance of counsel is more properly raised in a timely motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Finally, Wood’s conviction of direct criminal contempt is reversed, as the trial court failed to comply with the procedural requirements of Florida Rule of Criminal Procedure 3.830.

AFFIRMED in part; REVERSED in part.

ORFINGER, LAWSON and WALLIS, JJ., concur.


text:
    Travis NAVE, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-3152.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    Travis B. Nave, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Holler and Kaylee D. Tatman, Assistant Attorney Generals, Daytona Beach, for Appellant.
   PER CURIAM.

Travis Nave appeals from the summary denial of his pro se motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which alleged an error in his jail credit calculation. Rule 3.800(a) was the proper vehicle for addressing jail credit issues when Nave filed his motion. Shortly before the trial court ruled on Nave’s motion, however, rule 3.801 was implemented.as the procedural vehicle for addressing all jail credit issues. While Nave now concedes that there was no error in the trial court’s finding that his 3.800(a) motion was legally insufficient pursuant to that rule, a simple affirmance would leave Nave with no opportunity to attempt to present a legally sufficient claim. This is because rule 3.800(a) is no longer in effect and the time deadline for Nave to file a rule 3.801 motion has now passed. Based on the unique posture of this case, and the fact that rule 3.801 expresses a clear intention that defendants be given at least one opportunity to amend a facially insufficient motion, we affirm without prejudice to Nave filing a facially sufficient rule 3.801 motion within 30 days of the issuance of this court’s mandate. See Vincent v. State, 149 So.3d 1151 (Fla. 4th DCA 2014). A motion filed within this time will not be deemed untimely or successive. Id.

AFFIRMED WITHOUT PREJUDICE.

SAWAYA, LAWSON and LAMBERT, JJ., concur.


text:
    Jimmy BEDOYA, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-3195.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    James S. Purdy, Public Defender, and Robert Jackson Pearce, III, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing, withdraw our prior opinion and substitute this opinion in its stead. AFFIRMED. See Anderson v. State, 105 So.3d 538 (Fla. 5th DCA 2013); Falcon v. State, 111 So.3d 973 (Fla. 1st DCA), rev. granted, 137 So.3d 1019 (Fla.2013); Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012); Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012); but see, Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014).

ORFINGER, LAWSON, and WALLIS, JJ., concur.


text:
    Jason Allen TISZAI, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3521.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    Jason Allen Tiszai, Raiford, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the August 19, 2014 order denying postconviction relief in Case No. 2008-CF-005773-A-0, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, LAWSON and EVANDER, JJ., concur.


text:
    Willie L. HONOR, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3934.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    Willie L. Honor, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 1, 2014 order denying rule 3.801 motion, filed in Case No. 2013-CF-858-A-Z, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER and LAMBERT, JJ., concur.


text:
    Raymond ROWLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-4143.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    Raymond Rowland, Century, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 15, 2014, order denying postconviction relief in Case No. 201Í-1198-CFA, in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER, and LAMBERT, JJ., concur.


text:
    Rafael HUDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-4275.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    Rfael Hudson, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the August 18, 2014, order denying Petitioner’s motion to correct sentencing error in Case Nos. 2001-CF-8462 and 2007-CF-4427, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, WALLIS and LAMBERT, JJ., concur.


text:
    Tony GERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-268.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 2015.
    James S. Purdy, Public Defender, and Robert J. Pearce III, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The State properly concedes that one of German’s three convictions for aggravated assault with a firearm is required to be vacated on double jeopardy grounds. See Estremera v. State, 107 So.3d 511, 512 (Fla. 5th DCA 2013).

REVERSED and REMANDED with instructions to vacate one of the convictions for aggravated assault with a firearm.

TORPY, C.J., EVANDER and LAMBERT, JJ., concur.


text:
    Christopher Mitchell KINSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0413.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2015.
    Michael Ufferman of Michael Ufferman Law Firm, Tallahassee for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee for Appellee.
   PER CURIAM.

Appellant Christopher Kinsey appealed his sentence following his no contest plea to one count of failing to register as a sexual predator. We affirmed Appellant’s sentence in conformance with State v. Holmes, 909 So.2d 526 (Fla. 1st DCA 2005), which required Appellant to present evidence that the Department of Corrections could not accommodate his necessary, specialized treatment in order to receive a downward departure sentence under section 921.0026(2)(d), Florida Statutes (2013). See Kinsey v. State, 135 So.3d 424 (Fla. 1st DCA 2014), reh’g denied (Apr. 7, 2014), review granted, SC14-910, 2014 WL 4413264 (Fla.2014). The Florida Supreme Court has since disapproved of Holmes, quashed this Court’s decision, and remanded the cause.

Accordingly, we reverse Appellant’s sentence and remand for a new sentencing hearing. See Chubbuck, 141 So.3d at 1168-69 (quoting Banks v. State, 732 So.2d 1065, 1067-68 (Fla.1999)) (reaffirming that the process for departing from the guidelines requires the trial court to consider: (1) whether it legally can depart; and (2) if satisfied that it could, whether it should depart).

REVERSED and REMANDED.

BENTON, SWANSON, and OSTERHAUS, JJ., concur.

      . See State v. Chubbuck, 141 So.3d 1163 (Fla. 2014).


author: PER CURIAM. SWANSON, J.,

text:
    James Arlie TYSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5642.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2015.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris and David Campbell, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The order modifying and extending the appellant’s probation is reversed. See Van Wagner v. State, 677 So.2d 314 (Fla. 1st DCA 1996). Because the prior probationary term was set to expire on November 9, 2018, on remand the appellant’s probation shall be deemed to have terminated as of that'2013 date.

REVERSED.

PADOVANO and WETHERELL, JJ. concur, and SWANSON, J., concurs WITH OPINION.

SWANSON, J.,

CONCURRING.

A trial court has broad discretion to decide if a probationer has violated a condition of probation. Williamson v. State, 43 So.3d 843 (Fla. 1st DCA 2010). However, “[t]o establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996). That did not happen in this case. The trial court made no finding that appellant had willfully and substantially violated the terms of probation. Frankly, based on a review of the record, the evidence would not have supported such a finding.


text:
    Jamonnie ANDREWS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3811.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2015.
    Jamonnie Andrews, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We deny the petition for writ of mandamus because the circuit court has recently granted petitioner leave to amend his pending motion for post-conviction relief. See Munn v. Fla. Parole Comm’ n, 807 So.2d 733 (Fla. 1st DCA 2002). However, we encourage the circuit court to continue its efforts to expeditiously dispose of the motion pending below. Wilson v. State, 775 So.2d 1003 (Fla. 1st DCA 2001).

BENTON, CLARK, and SWANSON, JJ., concur. ■


text:
    Mombasa DOUGLAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3862.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2015.
    Mombasa Douglas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Fla. Parole Comm’ n, 807 So.2d 733 (Fla. 1st DCA 2002) (holding that where the trial court has issued a recent order to show cause on a pending pleading, mandamus relief is not warranted).

BENTON, CLARK, and SWANSON, JJ., concur.


text:
    Maurice NOBLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3980.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2015.
    Maurice Noble, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002) (holding that where the trial court has recently taken action on a pending pleading, mandamus relief was not warranted).

BENTON, CLARK, and SWANSON, JJ., concur.


text:
    Freddie Roosevelt TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4362.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2015.
    Freddie Roosevelt Taylor, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We deny the petition for writ of mandamus because the circuit court has recently granted petitioner leave to amend his pending motion for post-conviction relief. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). However,, we encourage the circuit court to continue its efforts to expeditiously dispose of the motion pending below. Wilson v. State, 775 So.2d 1003 (Fla. 1st DCA 2001).

BENTON, CLARK, and SWANSON, JJ., concur.


author: MORRIS, Judge.

text:
    D.O., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3263.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2015.
    Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

D.O. appeals her adjudication of juvenile delinquency for the offense of carrying a concealed weapon. We affirm the adjudication without comment but remand for the circuit court to correct the disposition order to provide that D.O.’s probation shall run concurrently with her juvenile probation in two other cases. The order currently provides that D.O.’s probation will run concurrently with and consecutively to her other probation, and the State concedes this scrivener’s error.

Affirmed and remanded.

SILBERMAN and WALLACE, JJ., Concur.


author: CIKLIN, J.

text:
    Andre T. JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2576.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Andre Joseph, the defendant below, appeals from his judgment and sentence for burglary of a dwelling. He raises two intertwined issues on appeal, and we find merit as to both and reverse for a new trial.

The evidence at trial revealed that the defendant used to collect scrap metal with the victim. On the day of the charged burglary, the defendant called the victim and asked him if he was home. The victim informed him he was at work. Later that day, the victim’s wife arrived home from work and observed the defendant and another man attempting to carry an engine block out of the carport. The defendant explained that he had spoken to the victim and entered the property in order to repossess some window frames he had stored there. The victim’s wife made a phone call to her husband, who was still at work. He denied the defendant had permission to come onto the property. The victim was aware, however, that the window frames had, in fact, been left on the property by the defendant although the victim had given them away, believing the defendant had abandoned them. The victim’s wife called the authorities and before law enforcement officials arrived to investigate, the defendant and the other man departed, leaving the engine block on the driveway. Subsequently, the victim discovered another car engine block was missing from his carport. The second engine block was never recovered.

Over objection, the court read the following standard jury instruction to the jury:

Proof of possession by an accused of property recently stolen by means of a burglary, unless satisfactorily explained, may justify a conviction of burglary if the circumstances of the burglary and of the possession of the stolen property convince you beyond a reasonable doubt that the defendant committed the burglary.

Fla. Std. Jury Instr. (Crim.) 13.1.

The defendant argues the instruction was improper. We agree. The defendant was charged pursuant to section 810.02(1), Florida Statutes (2012), with “unlawfully entering] or remaining]” in a dwelling “with intent to commit the offense of [t]heft therein.” The statute provides the following in pertinent part:

(b) For offenses committed after July 1, 2001, “burglary” means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or
2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:
a. Surreptitiously, with the intent to commit an offense therein;
b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein....

§ 810.02(l)(b), Fla. Stat.

The Florida Supreme Court has explained when the instruction at issue is proper:

As with all jury instructions, there must be an appropriate factual basis in the record in order to give this instruction. This means two things. First, it must be shown that the defendant, when arrested, either failed to explain or gave an incredible or unbelievable explanation for his possession of the property. Second, the instruction applies only where the property is undisputedly stolen and the question is who stole it. “[W]here there is conflict in the evidence as to the intent with which property alleged to have been stolen was taken ... the question should be submitted to the jury without any intimation from the trial court as to the force of presumptions of fact arising from ... the testimony.” It is improper to give this instruction when its only possible effect is to allow the jury to presume that a defendant is guilty because he was in possession of the property.

Consalvo v. State, 697 So.2d 805, 815 (Fla.1996) (alterations in original) (internal citations omitted) (quoting Curington v. State, 80 Fla. 494, 86 So. 344, 345 (1920)).

Applying Consalvo to these circumstances, we find the court erred in giving the instruction. Although the engine in the defendant’s possession was undisput-edly in the midst of being taken from the carport, and there was no dispute as to the defendant’s identity, there were disputes as to whether he had permission to be on the property and what his intent was, either at the time of entry or after he was on the property. Under these circumstances, the “only possible effect [of the jury instruction was] to allow the jury to presume that [the] defendant is guilty because he was in possession of the property.” Id.

The instruction was not harmless. We acknowledge that the defendant was caught in the act of hauling off a car engine and there was no evidence he had any claim to the engine or was given permission to take it. However, if the jury found that the defendant did not have permission to be on the property, its verdict turned on the defendant’s intent at the time he entered the property. See Ray v. State, 933 So.2d 716, 719 (Fla. 4th DCA 2006) (recognizing that where entry is without permission, the state must prove the intent to commit a crime therein was formed at the time of entry). There was evidence that the defendant entered the property for a legitimate purpose — to retrieve window frames he had stored there. We are unable to say that, in this context, there is no Reasonable possibility the jury instruction contributed to the conviction. See Rivers v. State, 124 So.3d 247, 253 (Fla. 2d DCA 2013) (citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986)).

We also agree with the defendant’s second argument on appeal — that évidence of the missing engine was admitted in error. The victim’s testimony pertaining to a missing engine was not sufficient to constitute similar fact evidence admissible under section 90.404(2), Florida Statutes (2012). See Griffin v. State, 639 So.2d 966, 970 (Fla.1994) (recognizing that a witness’s “mere reference to other burglaries was obviously not similar fact evidence”). Nor was the evidence necessary for the state to “adequately describe the deed,” “provide an intelligent account of the crime(s) charged,” “establish the entire context out of which the charged crime(s) arose;” or “adequately describe the events leading up to the charged erime(s).” See Young v. State, 122 So.3d 891, 896 (Fla. 4th DCA 2013) (alterations in original) (citation omitted). Thus, the evidence was clearly not inextricably intertwined with the evidence of the charged offense. To the extent the evidence may have somehow been otherwise relevant, any probative value was outweighed by the prejudicial effect. As with the jury instruction error, we find this error was not harmless. On retrial, if the evidence remains the same, it would be error for' the court to permit the introduction of evidence regarding the missing engine.

Reversed and remanded for new trial.

CONNER and FORST, JJ., concur.


text:
    BOCA STEL, LLC, Appellant, v. Homei CHEN and Nationstar Mortgage, LLC, Appellees.
    No. 5D13-3670.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2015.
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellant.
    Nancy M. Wallace and Michael J. Larson of Akerman LLP, Tallahassee and William P. Heller of Akerman LLP, Fort Lauderdale, for Appellee.
   PER CURIAM.

DISMISSED. See Koniecpolski v. Stel-nicki, 571 So.2d 577 (Fla. 5th DCA 1990).

TORPY, C.J., PALMER and WALLIS, JJ., concur.


text:
    Tyrone L. SMITH, Petitioner, v. STATE Of Florida, Respondent.
    No. 1D14-4867.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2015.

      Tyrone L. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

THOMAS, ROWE, and OSTERHAUS, JJ., concur.


text:
    William ESCOFFERY, Appellant, v. Claude PERRY, Appellee.
    No. 1D14-4192.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2015.
    William Escoffery, pro se, Appellant.
    Scott M. Work, Destín, for Appellee.
   PER CURIAM.

Appellee’s motion filed September 26, 2014, seeking dismissal of the appeal as premature is hereby GRANTED and the appeal is DISMISSED.

BENTON, CLARK, and SWANSON, JJ., concur.


author: ROBERTS, J.

text:
    Ned Carmer THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5148.
    District Court of Appeal of Florida, First District.
    Jan. 15, 2015.
    Nancy A. Daniels, Public Defender; Glen P. Gifford and Joanna Aurica Mauer, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, J.

The Appellant, Ned Carmer Thompson, appeals his judgment and sentence .for the following counts: (1) felony battery — domestic battery by strangulation; (2) false imprisonment; (3) tampering with a witness, victim, or informant; (4) felony battery — repeat offender; (5) tampering with a witness, victim, or informant; and (6) perjury in an official proceeding. He raises five issues on appeal, only one of which merits discussion. The Appellant argues that the trial court committed reversible error when it denied his motion for judgment of acquittal because the State failed to present any evidence required for a conviction for witness tampering under count three. The State concedes error, and we agree.

Under Florida law, tampering with a witness, victim, or informant occurs when:

(1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:
(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding....

§ 914.22(l)(e), Fla. Stat. (2013).

There is no evidence in the record establishing that the victim was attempting to contact law enforcement during the time of the incident. As such, there was insufficient evidence as to an essential element of the crime. See Longwell v. State, 123 So.3d 1197, 1198 (Fla. 1st DCA 2013). Accordingly, the Appellant’s conviction for witness tampering under count three must be REVERSED.

THOMAS and ROWE, JJ., concur.


text:
    In re M. Robert VOITIER, Jr.
    No. 2014-OB-2372.
    Supreme Court of Louisiana.
    Nov. 19, 2014.
   ORDER

| j Considering' the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that M. Robert Voitier, Louisiana Bar Roll number 19199, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Greg G. Guidry Justice, Supreme Court of Louisiana


author: /s/ Greg G. Guidry

text:
    STATE of Louisiana v. Randolph ARMSTEAD.
    No. 2014-K-1365.
    Supreme Court of Louisiana.
    Nov. 21, 2014.
   ORDER

|, Considering the above and foregoing Motion for Remand to the Fourth Circuit Court of Appeal, it is hereby ordered:

This matter is remanded to the Louisiana Fourth Circuit Court of Appeal, for consideration of Respondent’s six (6) assignments of error urged in his appeal to the Fourth Circuit Court of Appeal.

/s/ Greg G. Guidry

For the Court


author: PER CURIAM. WEIMER, J.,

text:
    In re Robert N. CLARKE.
    No. 2014-B-2005.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|,The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled his client trust account by issuing checks from the account payable to “cash” and allowing the account to become overdrawn. Following an investigation, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Robert N. Clarke, Louisiana Bar Roll number 4161, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of supervised probation. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

WEIMER, J., dissents.

WEIMER, J.,

dissenting.

|,I would accept the original joint petition for consent discipline.


text:
    Penny D. GIFFORD, et al. v. Rashab ARRINGTON, et al.
    No. 2014-CC-2058.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   PER CURIAM.

| ,Plaintiffs filed suit against defendants based on a motor vehicle accident. Among other claims, plaintiffs asserted a wrongful death claim, alleging their decedent, Kenneth Gifford, was injured in the accident and died two weeks later. Defendants moved for partial summary judgment, arguing Mr. Gifford did not die as a result of the accident. In support, defendants relied on the coroner’s report which indicated Mr. Gifford died as a result of heart disease. Also, defendants relied on a report and the affidavit of Dr. David Elizar-di, M.D., a board certified cardiologist, who opined that “there is no evidence to support the allegation that the automobile accident of Sept. 18, 2010 was the cause of Mr. Gifford’s subsequent demise from complications of his advanced progressive, diffuse atherosclerotic cardiovascular disease.”

The district court denied defendants’ motion for partial summary judgment, and the court of appeal denied supervisory review. This application followed.

A party moving for summary judgment has the burden of pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. Code Civ. P. art. 966(C)(2); Schultz v. Guoth, 10-0343 (La.1/19/11), 57 So.3d 1002.

Lin the instant case, defendants produced evidence indicating Mr. Gifford did not die as a result of the accident, but instead died as a result of his severe cardiovascular disease. The burden then shifted to plaintiffs to come forward with evidence (by affidavit, deposition, discovery response, or other form sanctioned by La. Code Civ. P. arts. 966 and 967) to demonstrate that they would be able to meet their burden at trial to show the accident caused Mr. Gifford’s death. Plaintiffs argued the jury may find the accident caused or contributed to Mr. Gif-ford’s death because one of the causes of his death was a cerebral vascular accident or stroke, and strokes can be caused by head injuries. However, plaintiffs’ argument is based largely on speculation, which is insufficient to satisfy their burden of proof at trial. See Babin v. Winn-Dixie, 00-0078 (La.6/30/00), 764 So.2d 37 (“speculation falls far short of the factual support required to establish that plaintiff will be able to satisfy his evidentiary burden of proof at trial”). In the absence of any evidence by plaintiffs showing they could meet their burden at trial, summary judgment in favor of defendants is mandated. See Bufkin v. Felipe’s Louisiana, LLC, 14-0288 (La.10/15/14),-So.3d-.

Accordingly, the writ is granted. The judgment of the district court is reversed, and partial summary judgment is granted in favor of defendants. Case remanded to the district court for further proceedings.

JOHNSON, C.J., dissents.


text:
    STATE of Louisiana v. Booker DIGGINS.
    No. 2014-KP-0018.
    Supreme Court of Louisiana.
    Dec. 9, 2014.
   ORDER

| ]Writ granted. The judgment of the court of appeal is vacated and the trial court’s judgment rescinding its previously granted motion for new trial and reinstating respondent’s convictions and sentences is reinstated. We recognize existing jurisprudence holding that a trial judge lacks authority to reverse a previously granted motion for new trial. State v. Bullock, 263 La. 946, 269 So.2d 824, 825 (1972) (“[i]n the absence of timely application for supervisory review staying such ruling, [the order granting a new trial] became final and was no longer subject to revision or reversal by the trial court which had rendered it”); State v. Terry, 458 So.2d 97, 100 (La.1984) (“[t]his Court has consistently held that ‘a trial court’s vacation of a conviction, even if beyond its authority, effectively and conclusively invalidates the verdict thus invalidated’”) (citing State v. Neames, 377 So.2d 1018 (La.1979); State v. Reed, 315 So.2d 703 (La.1975); State v. Oglesby, 164 La. 329, 113 So. 865 (La.1927)). However, there are exceptions to this jurisprudential rule. In State v. Williams, we held that a trial court was authorized to reconsider a previously granted motion for new trial in order to correct a ministerial error. State v. Williams, 01-0554 (La.5/14/02), 817 So.2d 40. In Williams, the trial judge inadvertently signed an ex parte order granting a new trial, and subsequently granted the state’s motion to ^reconsider the defendant’s motion for new trial in order to correct the error. We reasoned that “[wjhile the trial court is not authorized to reconsider the merits of a previously granted motion for new trial after a considered decision has been made, the trial court does have the authority to correct a ministerial error.” Id. at 48. In this highly exceptional case, the trial judge did not make a “considered decision” in granting the new trial because the record before him at the time he granted the new trial did not reflect the newly discovered DNA evidence which established respondent’s actual guilt, i.e. the long lost rape kit containing vaginal samples taken from the victim and portions of the tampon she had been wearing at the time of the sexual assault, upon which testing unequivocally identified respondent’s DNA in those materials. Because a “considered decision” was not made in granting the new trial, the trial judge had the authority to rescind its prior order and reinstate respondent’s convictions and sentences.

FOR THE COURT:

/s/' Bernette J. Johnson Justice, Supreme Court of Louisiana

WEIMER, J., would grant and docket.

HUGHES, J., would grant and docket.


text:
    In re James SPRUEL, Jr.
    No. 2014-B-2117.
    Supreme Court of Louisiana.
    Dec. 15, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|,The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter and allowed the matter to prescribe, failed to communicate with a client, and failed to return a client file upon request. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that James Spruel, Jr., Louisiana Bar Roll number 12352, be suspended from the practice of law for a period of one year, with all but six months deferred, followed by a one-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.