text:
    Charles Kenneth WILLIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6231.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2013.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We affirm without comment the trial court’s revocation of Charles Willis’s probation. However, we remand for the trial court to correct the Order of Revocation to reflect the condition violated.

Affirmed; remanded with instructions.

KHOUZAM, BLACK, and SLEET, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mikhal FORBES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1505.
    District Court of Appeal of Florida, First District.
    Aug. 27, 2013.
    Mikhal Forbes, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Smith v. State, 113 So.3d 1058 (Fla. 1st DCA 2013).

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Denard JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0828.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2013.
    Denard Jones, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica and Wes Paxson, III, Assistant Attorneys General, Tallahassee, for Appel-lee.
   PER CURIAM.

The appellant appeals the summary denial of his motion for posteonviction relief filed pursuant to rule 3.850. We affirm the denial of all but one of the appellant’s claims. In ground three, the appellant alleges that counsel was ineffective for failing to object when the trial court failed to read the “Stand Your Ground” jury instruction stating that there was no duty to retreat. The trial court appears to have denied the claim as facially insufficient. However, the appellant should have been given an opportunity to amend pursuant to Spera v. State, 971 So.2d 754 (Fla.2007) (trial court must give defendant one opportunity to amend facially deficient claims). Accordingly, we reverse and remand the denial of ground three with directions for the trial court to give the appellant a reasonable amount of time to amend the facially insufficient claim. If the appellant files a facially sufficient claim the trial court must attach portions of the record conclusively refuting the claim or hold an evidentiary hearing on the claim.

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

CLARK, ROWE, and SWANSON, JJ., concur.


text:
    Michael FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2525.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2013.
    Michael Flowers, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The state’s motion to dismiss is granted, and the appeal is hereby dismissed.

VAN NORTWICK, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Joseph A. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3847.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2013.
    Joseph A. Smith, 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., ROBERTS and MAKAR, JJ., concur.


text:
    Bruce Edward McCRAY, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4296.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2013.
    Bruce Edward McCray, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., ROBERTS and MAKAR, JJ., concur.


text:
    Michael Eric CANADAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4117.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 2013.

      James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Michael Canaday appeals his convictions for lewd and lascivious molestation of a child under sixteen, a second-degree felony, and sexual battery of a child under eighteen by a person in familial or custodial authority, a first-degree felony. The trial judge imposed concurrent sentences of fifteen years and thirty years, respectively. Canaday argues as his sole issue on appeal that the trial court erred by not granting his motion for new trial on grounds that Williams Rule evidence was improperly allowed to become a feature of the trial. As Canaday never sought a new trial on this basis or obtained a ruling on this issue in the trial court, we affirm.

After the jury returned its guilty verdicts on August 29, 2012, defense counsel (Mr. Hines) stated that he wanted to “renew [his] motion for — ”, when the trial judge interrupted him, saying: “We’ll hear that in just a second.” Then, the trial judge proceeded to set a sentencing date for October 1, 2012. The sentencing date was set this far off to allow for preparation of a pre-sentence investigation. After securing consensus on the sentencing date, the judge said: “All right. Mr. Hines, you want to be heard again on your motion?” Mr. Hines responded:

Yes. Judgment of acquittal, your Hon- or. We believe no reasonable jury could have come up with a verdict on the evidence presented.

No other motions were made and no additional argument was presented in support of the motion, which the trial court took under advisement. As an aside, we note that the victim’s trial testimony was clearly sufficient to support the verdict, as the trial judge had already ruled in denying the initial motion for judgment of acquittal, made at the close of the State’s evidence, and again when denying a renewed motion for judgment of acquittal at the close of all evidence.

Then, on October 1, 2012, trial counsel appeared at the sentencing hearing with a document styled Memorandum of Law in Support of Counsel’s Oral Motion for a New Trial. In a short, introductory section of this document, under the heading “Overview of the Case,” counsel stated:

At the conclusion the trial [sic], counsel for the Defendant, Michael P. Hines, made an oral motion to the Court requesting a new trial based on the fact that the jury’s verdict was inconsistent ■with the weight of the evidence, the sufficiency of the evidence presented was legally inadequate to justify the verdict, and that the Williams Rule evidence became a feature of the trial.

Although we assume that this misstatement was simply the product of a faulty memory, it was none-the-less pure fiction — as Mr. Hines had never stated that he was making an oral motion for new trial, and had only argued the sufficiency of the evidence in the oral motion that he made after the jury returned its verdicts. More importantly, in the substantive section of the October 1 memorandum (under the heading “Applicable Law”), which immediately followed the introductory paragraphs, defense counsel simply set forth the legal standard applicable to a judge’s review of the sufficiency of the evidence, along with an explanation of the trial court’s role in considering the weight of the evidence in connection with a motion for new trial. The memorandum itself did not present any argument relating to Williams Rule evidence, or even allude to the issue. When the trial judge gave counsel an additional opportunity to present argument in support of his motion at the sentencing hearing, counsel only discussed the trial judge’s ability to consider the weight of the evidence — urging the judge to order a new trial on grounds that the verdict was inconsistent with the weight of the evidence. He never once mentioned Williams Rule evidence. After argument from both sides on the weight of the evidence issue, the judge announced his ruling as follows:

All right. Mr. Hines, thank you for your thoughtful and concise motion. However, this really comes down to who the jury believed, and from my perspective I do not believe that the verdict is contrary to the weight of the evidence. There was plenty of evidence for the jury to make the appropriate finding based on what their finding was. So this motion is going to be denied. So at this time are we ready to move on to sentencing?

Both parties then agreed that they were ready to proceed to sentencing, and the post-trial motion was never discussed again.

“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Brown v. State, 856 So.2d 1116, 1117 (Fla. 4th DCA 2003) (internal quotations and citation omitted). Here, defense counsel neither orally moved for a new trial nor timely filed a motion for new trial. See Fla. R.Crim. P. 3.590 (requiring that a motion for new trial either be made orally, on the record, upon announcement of a verdict or filed within ten days after rendition of the verdict). Given the timing, we recognize that counsel’s oral motion made after the return of verdicts was probably intended as a motion for new trial, even though counsel said that he was renewing his prior motions for judgment of acquittal. But, even if we were to treat the oral motion as a motion for new trial, the record is clear that counsel only argued the sufficiency of the evidence, never once mentioning any other basis for relief. Rule 3.590(a) allows a defendant to amend a timely motion for new trial to state new grounds, without leave of court, only if the amended motion is made “prior to the expiration of the 10 day period[.]” Counsel’s memorandum in this case was filed well after expiration of the ten day period and did not expressly seek leave of court to add new grounds. Although it might be inferred that counsel was seeking leave of court to treat his prior oral motion as a motion for new trial, and further seeking leave of court to add an untimely weight of the evidence argument, the memorandum offered absolutely no argument in support of the contention now argued on appeal that Williams Rule evidence was improperly allowed to become a feature of the trial. Then, when counsel was given an open forum to argue in support of the motion, he argued only the weight of the evidence. Finally, the court’s ruling clearly addressed only this argument, and counsel never sought a ruling on any other basis. Thus, we conclude that the only issue raised on appeal was not preserved, and affirm.

AFFIRMED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.

      . See § 800.04(5)(c)2„ Fla. Stat. (2004).

      . See § 794.01 l(8)(b), Fla. Stat. (2004)

        . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Gregory CARPENTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2637.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 2013.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Jones v. State, 963 So.2d 180, 185 (Fla.2007) (holding that admissibility of evidence is within trial court’s discretion and its ruling will not be reversed unless clear abuse of that discretion is shown).

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


text:
    Felipe GARCIA-ROQUE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-230.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 2013.
    James S. Purdy, Public Defender, and Christopher S. Quarles, 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.
   PER CURIAM.

Felipe Garda-Roque appeals his convictions and sentences on three counts of sexual battery of a child under eighteen by a person in familial or custodial authority, entered after he entered pleas to the charges while purportedly reserving the right to appeal the trial court’s ruling on a pre-trial motion in limine. Because the trial court’s ruling on the motion in limine was not dispositive, see, e.g., Levine v. State, 788 So.2d 379, 380 (Fla. 4th DCA 2001) (explaining that “[a]n issue is legally dispositive only if, regardless of whether the appellate court affirms or reverses the lower court’s decision, there will be no trial of the case”) (internal quotations and citations omitted), it cannot be challenged on direct appeal following Garcia-Roque’s pleas. Id. (“An issue is preserved for appeal on a guilty plea only if it is dispositive of the case.”) (citations omitted). As such, we affirm Garcia-Roque’s convictions and sentences without addressing the trial court’s ruling on the motion in limine. Our affirmance is without prejudice to any post-conviction remedy that may be available.

AFFIRMED.

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


text:
    Christopher Allen DILKS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-802.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 2013.
    Christopher Allen Dilks, Century, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   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 order denying his motion for post-conviction relief rendered March 25, 2011, in Case No. 05-2005-CF-63685-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and PALMER JJ., concur.


author: LaROSE, Judge.

text:
    Harry SAVAGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2269.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2013.

      Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

Harry Savage appeals an order revoking his sex offender probation and resulting twenty-year prison sentence. He argues that his contact with a child was not a willful and substantial violation of his probationary terms. Competent substantial evidence, however, supports the trial court’s finding of a willful and substantial violation. Because the trial court did not abuse its discretion by revoking probation, we affirm. We write to address some possible confusion about the applicable standard of review.

Both the trial court’s decision whether to revoke probation and our standard of review involve two steps.

Step One

The trial court must first determine whether the State proved by the greater weight of the evidence that the probationer willfully and substantially violated probation. Del Valle v. State, 80 So.3d 999, 1012 (Fla.2011) (citing State v. Garter, 835 So.2d 259, 261 (Fla.2002)); see also McCumber v. State, 682 So.2d 1214, 1215-16 (Fla. 2d DCA 1996) (citing Davidson v. State, 419 So.2d 728 (Fla. 2d DCA 1982)); Hanania v. State, 855 So.2d 92, 94 (Fla. 2d DCA 2003) (using term “preponderance” of the evidence) (citing Stevens v. State, 823 So.2d 319, 321 (Fla. 2d DCA 2002)); Hightower v. State, 529 So.2d 726, 727 (Fla. 2d DCA 1988) (citing Molina v. State, 520 So.2d 320 (Fla. 2d DCA 1988)); Wheeler v. State, 344 So.2d 630, 632 (Fla. 2d DCA 1977).

Many appellate decisions state that a revocation order is reviewed for an abuse of discretion; in actuality, on appeal, we first assess whether the finding of a willful and substantial violation is supported by competent substantial evidence. See Cerny v. State, 65 So.3d 609, 613-14 (Fla. 2d DCA 2011) (Altenbernd, J., concurring specially); Hicks v. State, 890 So.2d 459, 460 (Fla. 2d DCA 2004); Glasier v. State, 849 So.2d 444, 445 (Fla. 2d DCA 2003) (affirming revocation where competent substantial evidence supported trial court’s finding of willful and substantial violation).

The term “competent substantial evidence” does not relate to the quality, character, convincing power, probative value or weight of the evidence but refers to the existence of some evidence (quantity) as to each essential element and as to the legality and admissibility of that evidence. Competency of evidence refers to its admissibility under legal rules of evidence. “Substantial” requires that there be some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities) having definite probative value (that is, “tending to prove”) as to each essential element of the offense charged.

Dunn v. State, 454 So.2d 641, 649 n. 11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially); accord Lonergan v. Estate of Budahazi, 669 So.2d 1062, 1064 (Fla. 5th DCA 1996).

In De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957), the supreme court defined competent substantial evidence as “such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.” The supreme court stated that “the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” Id. The competent substantial evidence standard defers to the trial court’s judgment because the trial court is in the best position “‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.’ ” In re Estate of Sterile, 902 So.2d 915, 922 (Fla. 2d DCA 2005) (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976)). Our aseptic record cannot replicate what the trial court observed. Thus, we assess the record evidence from which the trial court reached its conclusion for its sufficiency, not its weight. See Blackwood v. State, 946 So.2d 960, 973 (Fla.2006) (holding review of whether evidence is competent and substantial tests only its legal sufficiency and not its weight).

The evidence must meet technical requirements to support a finding that a violation occurred. See, e.g., C.B.H. v. State, 117 So.3d 450 (Fla. 2d DCA 2013) (reversing revocation where only evidence of violation was hearsay, which, without nonhearsay evidence, was insufficient); Cerny, 65 So.3d at 613 (holding that “the circuit court erred in revoking Mr. Cerny’s probation based on that alleged new law violation” where no evidence supported trial court’s finding that a battery occurred); Gaddy v. State, 23 So.3d 1258, 1259 (Fla. 2d DCA 2009) (holding that the evidence that the defendant violated a probation condition was not competent and substantial because the State presented only hearsay evidence); Warren v. State, 924 So.2d 979, 981 (Fla. 2d DCA 2006) (holding trial court erred in finding violations based only on officer’s testimony based on review of probation records, where State’s failure to admit records into evidence rendered officer’s testimony hearsay) (citing Kipp v. State, 657 So.2d 931, 932 (Fla. 2d DCA 1995)); Grimsley v. State, 830 So.2d 118 (Fla. 2d DCA 2002) (reversing revocation for lack of competent evidence where only evidence that violation occurred was hearsay).

Equally important, the evidence must demonstrate willfulness. See, e.g., Miffin v. State, 19 So.3d 377, 378 (Fla. 2d DCA 2009) (holding trial court “abused its discretion” in finding violation where State presented no evidence that defendant ever received the instruction from probation officer and thus knew about the condition); Hines v. State, 789 So.2d 1085, 1087 (Fla. 2d DCA 2001) (reversing revocation where trial court did not have before it competent evidence that probationer’s failure to comply with probation condition was willful); Robinson v. State, 744 So.2d 1188, 1189 (Fla. 2d DCA 1999) (holding purely hearsay evidence that defendant was aware of requirement to report was insufficient to support finding of willful violation); Young v. State, 566 So.2d 69, 69-70 (Fla. 2d DCA 1990) (holding trial court abused its discretion in revoking probation where greater weight of evidence did not show violation was willful); Molina, 520 So.2d at 321 (“This court has refused to find technical violations sufficient to justify revocation. When the revocation is based on failure to complete a program, we have required a showing that the failure is the probationer’s fault.”); Drayton v. State, 490 So.2d 229, 229 (Fla. 2d DCA 1986) (“There was ... no evidence from which the trial court could properly conclude that appellant had the ability to file the monthly report but willfully failed to do so.”); Davidson, 419 So.2d at 729 (reversing revocation where no evidence showed that probationer was responsible for his release from Teen Challenge Program before successful completion required by probation condition).

Step Two

Upon finding a violation of probation or community control, the court decides whether to revoke, modify, or continue it. See § 948.06(2)(a, e), Fla. Stat. (2011); Nadzo v. State, 24 So.3d 690, 692 (Fla. 2d DCA 2009); Mikell v. State, 903 So.2d 1054, 1055 (Fla. 2d DCA 2005); State v. Casner, 825 So.2d 993, 993 (Fla. 2d DCA 2002); Brown v. State, 455 So.2d 635 (Fla. 5th DCA 1984) (citing Harris v. State, 453 So.2d 228 (Fla. 5th DCA 1984)). If the trial court revokes probation, it may impose any sentence it might initially have imposed. § 948.06(2)(b, e); Hill v. State, 927 So.2d 1047, 1047 (Fla. 2d DCA 2006) (citing Mearns v. State, 779 So.2d 282, 283 (Fla. 2d DCA 1998)).

While, as stated above, we review the trial court’s finding of a willful and substantial violation for competent substantial evidence, our standard of review for the trial court’s decision to revoke probation is abuse of discretion. See McCumber, 682 So.2d at 1216 (citing Molina, 520 So.2d 320); Hanania, 855 So.2d at 94 (citing Stevens, 823 So.2d at 321). “If reasonable [persons] could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). In other words, we will not disturb the decision unless no reasonable person could have decided as the trial court did.

Over time, the appellate decisions seemingly have conflated the competent substantial evidence standard for the willfulness requirement with the concept of abuse of discretion. Appellate courts commonly now state that the trial court abused its discretion both in deciding to revoke and in finding a willful violation. See, e.g., Carter, 835 So.2d at 262; Russell v. State, 982 So.2d 642, 646 (Fla.2008) (citing Carter and holding that “the trial court did not abuse its discretion in concluding that the evidence was legally sufficient to sustain a violation of probation”); Lawson v. State, 969 So.2d 222, 237 (Fla.2007) (citing Carter; applying abuse of discretion standard to factual finding of willful and substantial violation); Selig v. State, 112 So.3d 746, 749 (Fla. 2d DCA 2013) (citing Carter; holding that trial court abused its discretion in finding willful and substantial violation); Brown v. State, 86 So.3d 1225, 1227 (Fla. 2d DCA 2012) (citing Carter; holding appellate court’s task is to determine whether trial court acted arbitrarily, fancifully, or unreasonably in determining violation was willful and substantial); Correa v. State, 43 So.3d 738, 743 (Fla. 2d DCA 2010) (same); Jennings v. State, 22 So.3d 708, 710 (Fla. 2d DCA 2009) (citing Carter; holding trial court did not abuse its discretion in finding willful and substantial violation); Perez v. State, 884 So.2d 306, 308 (Fla. 2d DCA 2004) (citing Carter; “The trial court has broad discretion to determine whether there has been a willful and substantial violation, and our review of the trial court’s determination is for abuse of discretion.”); Oates v. State, 872 So.2d 351, 353 (Fla. 2d DCA 2004) (same); Davis v. State, 867 So.2d 608, 610 (Fla. 2d DCA 2004) (same); Anthony v. State, 854 So.2d 744, 747 (Fla. 2d DCA 2003) (citing Carter; same); Stevens v. State, 823 So.2d 319, 321-22 (Fla. 2d DCA 2002) (“[T]he trial court abused its discretion in finding that the greater weight of the evidence supported findings that Stevens willfully and substantially violated her probation.”); Mier v. State, 58 So.3d 319, 321-22 (Fla. 1st DCA 2011) (citing Carter; holding trial court did not abuse its discretion in finding willful and substantial violation); Kaduk v. State, 959 So.2d 817, 818-20 (Fla. 4th DCA 2007) (citing Carter; same); Grizzard v. State, 881 So.2d 673, 675 (Fla. 5th DCA 2004) (quoting Carter’s statement that appellate court must determine whether trial court’s finding of willful and substantial violation was arbitrary, fanciful or unreasonable); Lane v. State, 761 So.2d 476, 477 (Fla. 3d DCA 2000) (holding trial court did not abuse its discretion in finding violation was willful and substantial); Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996) (using term “preponderance” of evidence); Young v. State, 566 So.2d 69, 69-70 (Fla. 2d DCA 1990) (holding trial court abused its discretion in revoking probation where greater weight of evidence did not show violation was willful).

This articulation of the standard of review is not surprising; both De Groot’s definition of competent substantial evidence — that which a reasonable mind would accept as adequate — and the Cana-karis definition of abuse of discretion — a determination that no reasonable person could make — employ the reasonable person standard, thus suggesting an abuse of discretion standard of review. But we cannot ignore the fact that those many cases holding that the trial court abused its discretion in revoking probation appear to arise only where competent substantial evidence does not support a finding that the violation was willful and substantial. Whatever the announced standard of review, a constant theme sounds through the cases: on appeal, competent substantial evidence must support a finding of a willful and substantial violation; only then will we assess whether the trial court abused its discretion in revoking probation. See Cerny, 65 So.3d at 613-14 (Altenbernd, J., concurring specially) (“[A]lthough the case law often discusses abuse of discretion as an appropriate standard of review for orders revoking probation, that standard is appropriate only after the State has presented a prima facie case allowing the trial court to make a decision to revoke probation.”).

Based on our record, there can be no question but that Mr. Savage willfully and substantially violated his probation. We find no abuse of discretion in the trial court’s revocation of his probation.

Affirmed.

ALTENBERND, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Because a trial court has discretion to revoke, modify, or continue probation, it seems possible that a factual scenario could arise in which revocation could be an abuse of discretion even where competent substantial evidence supports a finding that the violation was willful and substantial. However, we find no cases so holding.


author: NORTHCUTT, Judge.

text:
    D.K.A., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1977.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2013.

      Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

D.K.A. challenges the juvenile court’s finding that he committed battery on an elderly person and abuse of a disabled person. We find no error in that decision and affirm without further comment. But we reverse the court’s order of probation because it does not state the term of the probation imposed. We remand with directions to enter a corrected probationary order. See J.M.W. v. State, 935 So.2d 630, 632 (Fla. 2d DCA 2006).

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.


author: WOLF, J.

text:
    Rodney VANCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1419.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2013.
    Rodney Vance, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

The trial court summarily denied appellant’s petition for writ of mandamus brought pursuant to chapter 119, Florida Statutes (2011), seeking to compel the clerk of the court and the state attorney to provide access to and copies of public records pertaining to his criminal case. We reverse and remand.

Appellant alleged he made multiple attempts to obtain the records, both via written requests and in person, and that he had been prepared to pay for the copies, but both agencies failed even to respond to the requests. In addition to compelling provision of the records, appellant also sought a judgment for “the cost of copying, postage, filing fee(s) and court cost assessed” in obtaining the files, pursuant to section 119.12, Florida Statutes. The trial court interpreted the relief requested as appellant seeking to obtain free copies of his file. Because post-appeal indigent inmates have no clear legal right to free copies, the trial court denied the petition. See Kyser v. State, 647 So.2d 183 (Fla. 1st DCA 1994).

In denying the petition, the trial court did not determine whether the petition was facially sufficient to allege a clear legal right to the records if appellant was willing to pay for them. Given the separate requests for relief, this right should be analyzed independently from any right of recovery appellant may have pursuant to section 119.12. Any determination as to entitlement to costs of enforcement is premature at this time.

We therefore REVERSE the order of denial and REMAND to the trial court for reconsideration of the petition, including whether an evidentiary hearing would be appropriate.

ROBERTS and RAY, JJ., concur.

      . We do note, however, that while section 119.12 provides for an award of "reasonable costs of enforcement including reasonable attorneys' fees,” the costs of enforcement, such as court filing fees, etc., do not include the cost of copies of the requested records. (Emphasis added).

      . The State points out that appellant failed to attach documentation of his requests to the petition as an alternative basis to uphold the denial of the petition. We note that chapter 119 does not require public records requests to be in writing. Cf. Fla. R. Jud. Admin. 2.420(i)(Z) (requests for access to judicial records shall be in writing).


text:
    Ingrid HERRMANN, Appellant, v. The DISTRICT BOARD OF TRUSTEES OF SANTA FE COLLEGE, Florida, Appellee.
    No. 1D12-5992.
    District Court of Appeal of Florida, First District.
    Sept. 3, 2013.

      Thomas W. Brooks and Martin F. Powell, of Meyer, Brooks, Demma and Blohm, P.A., Tallahassee, for Appellant.
    Michael Mattimore and Robert E. Lar-kin, III, of Allen, Norton & Blue, P.A., Tallahassee, for Appellee.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We grant Appellee’s Motion for Clarification addressed to our directions on remand, withdraw our previous opinion, and substitute in its place what follows.

Ingrid Herrmann appeals from the Final Order of The District Board of Trustees of Santa Fe College (the “Board”) dismissing with prejudice her Amended Petition for Administrative Hearing to contest the Board’s decision to terminate her contract as an assistant professor of microbiology. We reverse.

By letter dated August 6, 2012, Herr-mann requested from the Board a formal hearing before the Division of Administrative Hearings to challenge the dismissal. In a responsive letter dated September 5, 2012, the Board declared Herrmann could not be afforded a hearing because the statute cited in her letter as the basis for her request was incorrect and inapplicable to Santa Fe College. The Board’s letter did not give Herrmann an opportunity to amend her request; nonetheless, six days later she filed her formal Amended Petition for Administrative Hearing. Thereafter, the Board issued an order to show cause why Herrmann’s August 6, 2012, letter was adequate to allow an amendment, and why the Board should not dismiss her Amended Petition as untimely. Herrmann responded by arguing that her August 6 letter was in substantial compliance with the requirements of a “petition” as specified in section 120.54(5)(b)4., Florida Statutes (2012). In its Final Order, the Board rejected her argument and ruled her Amended Petition was “the first document that [could] be considered a petition under the Model Rules of Administrative Procedure, Chapter 28-106, Florida Administrative Code,” but, as such, was filed “well beyond the twenty-one (21) day deadline” expressed in the Notice of Hearing Rights she had received from the Board when it first notified her it had accepted the college president’s recommendation of dismissal. Consequently, the Board ruled Herrmann’s Amended Petition was untimely. In so ruling, the Board erred.

The Board rejected Herrmann’s reliance on Julio Banks, P.E. v. Florida Engineers Management Corp., 53 So.3d 1151 (Fla. 1st DCA 2011), and McIntyre v. Seminole County School Board, 779 So.2d 639 (Fla. 5th DCA 2001), in arguing that her August 6 letter was in substantial compliance with section 120.54(5)(b)4. In both Banks and McIntyre, it was decided that while the letters submitted to the agencies did not specifically request a hearing, they nonetheless were in substantial compliance with the statute and should have been treated as a sufficient request for an administrative hearing. See, e.g., Banks, 53 So.3d at 1154. Here, Herrmann’s August 6 letter actually requested a hearing, but simply cited an incorrect statute. The Board was wrong, therefore, when it held that Banks and McIntyre were distinguishable.

More important, though, is that in Banks we ruled: “[E]ven if [the] letter was a deficient petition for administrative hearing under section 120.54(5)(b)4., the appellant should have at least been provided the opportunity to file an amended petition. See § 120.569(2)(c).” 53 So.3d at 1154. Section 120.569(2)(c), Florida Statutes (2012), unequivocally mandates that the “[d]ismissal of a petition shall, at least once, be without prejudice to petitioner’s filing a timely amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured.” (Emphasis added.) Because Herrmann’s Amended Petition related back to her initial request for a hearing, McIntyre, 779 So.2d at 643, it was not untimely and, consequently, not “a defect that cannot be cured,” as held by the Board. As a result, the Board’s Final Order dismissing the petition with prejudice “was dependent on a material error in procedure,” and “constitute^] an abuse of discretion.” Banks, 53 So.3d at 1153 (citing section 120.68(7), Florida Statutes (2010)). Consequently, we reverse the Final Order and remand the cause to the Board with directions to afford Herrmann a hearing on her Amended Petition in accordance with section 120.57(l)(a), Florida Statutes (2012).

REVERSED and REMANDED.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Jessica BRINSON, Petitioner, v. WELLS FARGO BANK, N.A., et al., Respondents.
    No. 1D13-2570.
    District Court of Appeal of Florida, First District.
    Sept. 3, 2013.
    Jessica Brinson, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

Petitioner has failed to demonstrate that any harm caused by the lower tribunal’s order for which she seeks review cannot be adequately remedied on plenary appeal after entry of a final order. Accordingly, the petition for writ of certiorari is DENIED. See AVCO Corporation v. Neff, 30 So.3d 597 (Fla. 1st DCA 2010).

VAN NORTWICK, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Ray JAMES, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-3016.
    District Court of Appeal of Florida, First District.
    Sept. 3, 2013.

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

Ray James, a state inmate, filed a civil complaint in the circuit court. Cognizant of our decision in Moore v. Correctional Medical Services, 817 So.2d 963 (Fla. 1st DCA 2002), he filed a notice of hearing in an attempt to move the matter forward, and after the trial court took no action thereon, has petitioned this court for mandamus relief. There is no indication, however, that James coordinated the scheduling of the hearing with the lower tribunal, as is ordinarily required in the trial courts of this state. We therefore DENY his petition, but do so without prejudice to James filing a motion requesting that the circuit court schedule a hearing and that he be permitted to appear at that hearing telephonieally. See generally Johnson v. Johnson, 783 So.2d 326 (Fla. 1st DCA 2001).

VAN NORTWICK, SWANSON, and OSTERHAUS, JJ., concur.


author: SILBERMAN, Judge. ALTENBERND, Judge,

text:
    Barry Joseph JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-127.
    District Court of Appeal of Florida, Second District.
    Sept. 4, 2013.

      Barry Joseph Johnson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Barry Joseph Johnson seeks review of several orders denying his motion and amended motion for postconviction relief which were filed pursuant to Florida Rule of Criminal Procedure 3.850. The post-conviction court summarily denied claims two through eight, dismissed claim nine, and denied claim one after an evidentiary hearing. We affirm without discussion the denial of all the claims but claim seven. We reverse the denial of that claim and remand for further proceedings.

Johnson was charged with second-degree murder based on evidence that he shot a friend in the back as the friend was walking away from an argument with Johnson. At trial, Johnson testified that he and the victim had a heated argument on the date in question but that no shots were fired. Johnson claimed the victim left the scene and must have been shot by someone else thereafter.

A jury found Johnson guilty as charged, and the trial judge imposed the maximum sentence of life in prison with a minimum mandatory of twenty-five years based on the discharge of a firearm. The judge explained his reasoning as follows:

This, you know, is a troubling case. It’s a tragic case because again we have a situation where two, you know, good families are destroyed. You know, you see these little children running around here and, you know, I think about the victim’s child that’s not going to have a father and that’s the tragedy of this case.
We don’t know exactly what provoked or what caused this incident, but Mr. Johnson, I have no doubt in my mind that you shot and killed [the victim]. I have no doubt whatsoever in my mind. I was clearly convinced of that by the testimony of Mr. [Roy] Johnson and the other witnesses in this case and the circumstances of this case.
You have — you did this with a child present. You have shown absolutely no remorse to this day. You continue to deny your involvement and basically say this didn’t even happen. So I think it’s a very serious offense. [The victim] is dead and you have to answer for that death.
It is the judgment and sentence of the Court that I adjudicate you guilty as to Count One. I’m going to sentence you to life in the Florida State Prison with a statutory twenty-five year minimum mandatory sentence based on the use of the firearm as it was charged in the information.

In claim seven of his postconviction motion, Johnson asserted that the trial judge’s consideration of his failure to confess was erroneous. Johnson argued that trial counsel was ineffective for failing to object to these improper considerations. The postconviction court concluded that the trial judge did not rely on improper factors in sentencing Johnson and summarily denied this claim.

The first question we must decide on appeal is whether Johnson’s claim is cognizable in a motion for postconviction relief. This court has determined that claims alleging ineffective assistance for failing to object to improper reasons given in support of an upward departure sentence are cognizable in motions for post-conviction relief. See, e.g., Rodriguez v. State, 932 So.2d 1287, 1289 (Fla. 2d DCA 2006); Pilkington v. State, 734 So.2d 1153, 1153 (Fla. 2d DCA 1999), review denied, 744 So.2d 456 (Fla.1999). Although the present case does not involve an upward departure sentence, it does involve improper considerations by the trial judge in determining an appropriate sentence. We conclude that postconviction relief is available here as it was in Rodriguez and Pilkington.

On the merits, the transcript of the sentencing proceeding clearly establishes that the trial judge relied on improper factors in sentencing Johnson. A sentencing judge may not consider a defendant’s claims of innocence or refusal to admit guilt when imposing sentence. Smith v. State, 62 So.3d 698, 699 (Fla. 2d DCA 2011); Hannum v. State, 13 So.3d 132, 135 (Fla. 2d DCA 2009); Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009). It is similarly improper for a judge to consider whether the defendant testified truthfully in imposing sentence. Smith, 62 So.3d at 700; Hannum, 13 So.3d at 136. In this case, the trial judge did both in violation of Johnson’s due process rights. See Hannum, 13 So.3d at 136. And counsel’s failure to object to this error therefore renders his performance deficient.

The dissent disagrees with this conclusion and suggests that trial counsel may have failed to object as a tactic or because he was caught up in the emotion of the proceedings. We are unable to envision any tactical reason that trial counsel would have had for standing mute when the trial judge imposed the harshest sentence available based on improper sentencing factors. And, of course, suggesting that counsel failed to object “by inadvertence in this moment of emotion” does not excuse the omission. See Mazard v. State, 649 So.2d 255, 257 (Fla. 3d DCA 1994) (noting that the Strickland standard concerns decisions trial counsel made by “inadvertence or mistake” as opposed to trial strategy and defense tactics). The failure to object is similarly not excused by the fact that Johnson testified at trial rather than invoking his Fifth Amendment rights. The trial judge’s improper considerations have a constitutional dimension as violations of Johnson’s due process rights. See Smith, 62 So.3d at 700; Hannum, 13 So.3d at 136.

As for prejudice, Johnson was required to establish that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Rodriguez v. State, 39 So.3d 275, 285 (Fla.2010) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Although the minimum sentence was twenty-five years in prison, the trial judge imposed a life sentence after emphasizing Johnson’s refusal to admit guilt and assertions of innocence both at trial and at sentencing. These improper considerations by the trial judge undermine our confidence in the outcome of the sentencing proceeding.

The dissent speculates that, had counsel objected at sentencing, the trial judge would have simply withdrawn his reliance on these improper factors and reimposed the life sentence. But such speculation as to what might have happened does little to restore our confidence in the outcome of the sentencing proceeding. Furthermore, the fact that a court subsequently offers additional reasons to justify a sentence that was originally based on improper factors does not necessarily cure the error. See, e.g., Hannum, 13 So.3d at 136 (reversing and remanding on direct appeal for a resentencing before a different judge based on the court’s improper consideration of certain factors even though the court subsequently offered additional reasons to justify the sentence). Indeed, when sentencing courts are reversed on direct appeal for consideration of improper factors, they generally are not given an opportunity to offer additional reasons to justify their sentence on remand. See, e.g., Smith, 62 So.3d at 700; Hannum, 13 So.3d at 136; Bracero, 10 So.3d at 666.

We recognize, as the dissent points out, that Johnson did not raise this issue on direct appeal. But the fact that a claim of trial court error was or could have been raised on direct appeal does not bar a claim of ineffective assistance that arises from the same facts. Bruno v. State, 807 So.2d 55, 63 (Fla.2001). In fact, “an affir-mance on direct appeal should rarely, if ever, be treated as a procedural bar to a claim for ineffective assistance of counsel on a postconviction motion.” Johnson v. State, 3 So.3d 412, 414 (Fla. 3d DCA 2009). It is worth noting that Johnson would have been entitled to resentencing before a different judge if appellate counsel had raised the sentencing issue on direct appeal as fundamental error. See Smith, 62 So.3d at 700; Hannum, 13 So.3d at 136; Bracero, 10 So.3d at 665-66.

We also observe that Johnson would have been entitled to resentencing before a different judge had he filed a petition claiming ineffective assistance of appellate counsel based on counsel’s omission. See Whitmore v. State, 27 So.3d 168, 172 (Fla. 4th DCA 2010). But there is no authority requiring Johnson to seek relief by filing a petition claiming ineffective assistance' of appellate counsel or barring postconviction relief based on his failure to file such a petition.

Accordingly, we conclude that trial counsel’s failure to object to the trial judge’s consideration of improper factors at sentencing constituted deficient performance. Because there is no possible tactical reason for counsel’s failure to object, an evi-dentiary hearing would be redundant. Accordingly, we reverse the denial of claim seven and remand for a new sentencing hearing before a different judge. Cf. Evans v. State, 979 So.2d 383, 386 (Fla. 5th DCA 2008) (reversing summary denial of postconviction claim asserting ineffective assistance of counsel for failing to object to vindictive sentencing and remanding for resentencing before a different trial judge).

Affirmed in part, reversed in part, and remanded.

DAVIS, C.J., Concurs.

ALTENBERND, J., Dissents with opinion.

ALTENBERND, Judge,

Dissenting.

There may not be any harm in giving Mr. Johnson relief in this proceeding. Nevertheless, I cannot agree that Mr. Johnson is entitled to a new sentencing hearing before a different judge as relief on a postconvietion motion that alleged his lawyer was ineffective for failing to object to the sentencing judge’s partial reliance on Mr. Johnson’s lack of remorse during the imposition of this sentence. As the cases cited by the majority demonstrate, Mr. Johnson was entitled to raise this issue on direct appeal as fundamental error, but he did not do so. See Johnson v. State, 951 So.2d 842 (Fla. 2d DCA 2007) (table decision). He filed a petition claiming that his appellate lawyer was ineffective but did not raise this ground in that motion. Johnson v. State, 980 So.2d 1075 (Fla. 2d DCA 2008) (table decision). Had his trial lawyer actually objected to the judge’s statement at sentencing, I am inclined to believe that the experienced sentencing judge would simply have withdrawn his reliance on that ground and sentenced Mr. Johnson to life in prison based on the evidence at trial and the presentations at the full sentencing. I cannot agree that counsel was ineffective for failing to object to a comment that could be challenged on appeal without an objection.

Mr. Johnson was in his early twenties at the time of this offense. He lived in a semirural area of eastern Hillsborough County. The families in the area were friendly with one another. Within this community, there was a group of young men who socialized with one another. Mr. Johnson was part of that group.

Mr. Johnson apparently loaned $150 to the victim, Mark Franklin. In the weeks preceding this offense, he argued with Mr. Franklin. On the day of the offense, the argument apparently escalated. Mr. Johnson shot Mr. Franklin six times with a .22 caliber handgun. Some bullets entered Mr. Franklin’s arms and shoulder, but one bullet entered his back and lodged in his lungs. The shooting took place with other people in the vicinity, including an infant. Mr. Franklin then entered a car, apparently to escape. He sat in the driver’s seat, and another man was already sitting in the passenger seat. Mr. Franklin drove the car onto the interstate. Eventually, the blood in his lungs caused Mr. Franklin to die. The car he was driving crashed, and the passenger died as well.

Following the shooting, Mr. Johnson called the aunt of the victim and confessed. Cell phone records confirm the call occurred. Because Mr. Franklin had been in the automobile accident, law enforcement had not immediately appreciated that he had been shot. Thus, the murder investigation commenced as a result of the report the aunt made to law enforcement. That investigation included the gathering of spent .22 caliber casings at the scene of the shooting.

Mr. Johnson’s theory at trial was that the aunt was lying about the content of his telephone call and that somehow someone else had shot Mr. Franklin in the back after he left the neighborhood in the car. Mr. Johnson testified in this trial. He admitted that the men had had a disagreement over the money. He admitted that he had hit the victim with a shovel during an earlier argument over this money, but he denied the shooting. The jury convicted him of second-degree murder involving a firearm. The State had also charged Mr. Johnson for the death of the passenger. That charge had been severed, and it ultimately was dismissed.

Mr. Johnson’s family attended the sentencing hearing. His mother spoke on his behalf, as did the mother of one of his three children. The victim’s mother and his aunt also attended the hearing. The statement of the victim’s mother was read in open court. The sentencing judge listened to the impact this senseless crime had had upon not only the two men who died but also on the neighborhood as a whole. Six bullets were fired because of a $150 debt, leaving families without support, children without fathers, and parents and grandparents only to wonder.

It was in this context and before these people that the judge made the comments described in the majority’s opinion. Whether Mr. Johnson’s experienced attorney did not object as a tactic or by inadvertence in this moment of emotion is hard to say.

The majority cites no prior case that has granted relief in a similar context. I cannot agree that Mr. Johnson’s attorney was ineffective on the face of this record, nor am I convinced that Mr. Johnson has established prejudice in a postconviction proceeding in which no evidentiary hearing was held.

Finally, this is not a case in which the trial court relied on the defendant’s invocation of his Fifth Amendment rights. Both the judge and the jury had concluded that Mr. Johnson lied under oath during this trial. At the sentencing hearing where the neighborhood needed closure, Mr. Johnson gave them nothing. I agree with Judge Kelly that the law of Florida that makes it fundamental error for a trial judge to comment aloud about a defendant’s visible lack of remorse in this context ought to be revisited by the supreme court. See Brown v. State, 27 So.3d 181, 183-85 (Fla. 2d DCA 2010) (Kelly, J., concurring).

      . See § 775.087(2)(a)(3), Fla. Stat. (2004).

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . See Smith v. State, 62 So.3d 698 (Fla. 2d DCA 2011); Hannum v. State, 13 So.3d 132 (Fla. 2d DCA 2009); Bracero v. State, 10 So.3d 664 (Fla. 2d DCA 2009).


text:
    Bennett K. TRESSLER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3642.
    District Court of Appeal of Florida, First District.
    Sept. 4, 2013.
    Bennett K. Tressler, Jr., pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Bennett K. Tressler, Jr., filed a motion to correct illegal sentence with the circuit court pursuant to Florida Rule of Criminal Procedure 3.800(a), asserting an entitlement to relief under Heggs v. State, 759 So.2d 620 (Fla.2000). The circuit court struck his motion, finding that because more than 60 days had passed since the date of Tressler’s sentencing in 1996, it had no jurisdiction to modify his sentence. By a petition for writ of mandamus, Tres-sler argues that it is apparent from the circuit court’s order that it misapplied the 60-day time limitation found in rule 3.800(c) to erroneously conclude that it lacked jurisdiction to address his rule 3.800(a) motion. As a relief, he seeks an order of this court directing the circuit court to properly consider and dispose of his motion to correct illegal sentence.

While it does appear that the circuit court may have erred when it found that it had no jurisdiction to entertain Tressler’s rule 3.800(a) motion, the fact that it has entered an order disposing of that motion precludes the granting of mandamus relief. Accordingly, we DENY the petition for writ of mandamus. However, given that the circuit court has evidently not yet addressed the merits of his Heggs claim, we do so without prejudice to Tressler refiling a proper rule 3.800(a) motion with the circuit court.

VAN NORTWICK, SWANSON, and OSTERHAUS, JJ„ concur.


author: CONNER, J.

text:
    Margaret TURTON, Appellant, v. SINGER ASSET FINANCE COMPANY, L.L.C., a Florida Limited Liability Company, Radian Group, Inc., a Delaware Corporation, and Howard Weinberger, Appellees.
    No. 4D12-1340.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.

      Michael R. Tilley, Boca Raton, for appellant.
    John R. Whittles of Richman Greer, P.A., West Palm Beach, for appellees Singer Asset Finance Company, LLC and Howard Weinberger.
    Harvey W. Gurland, Jr., P.A. and Robert A. Peccola of Duane Morris LLP, Miami, for appellee Radian Group Inc.
   CONNER, J.

Florida law has long recognized that statements in employee handbooks, policy statements, or procedure manuals do not constitute the terms of a contract of employment and thus do not give rise to enforceable contract rights. However, an enforceable contract right may arise if a statement induces an employee to refrain from performing an action separate from their normal contractual duties. The unique facts alleged in this case require reversal of summary judgment in favor of the employer because material facts remain in dispute concerning the intent of the parties regarding a compensation plan: whether the intent of the plan was to merely induce employees to work hard or was to induce employees to refrain from exercising their right to terminate employment.

Procedural and Alleged Factual Background

Margaret Turton filed a complaint demanding an • accounting and alleging breach of contract based upon The Singer Employee Long Term Incentive Plan (“the Plan”). She alleged that the Plan was an offer and her acceptance of the Plan created a binding contract between her and Singer Asset Finance Company, LLC., (“Singer”) and Radian Group, Inc., (“Radian”). Her allegations of breach of contract asserted that Singer and Radian failed to pay funds due to her and refused to make an accounting. Singer responded by explaining that no contract existed; Radian filed a motion to dismiss alleging it was not a party to the contract.

Turton’s complaint alleges the facts pertinent to our decision:

7. In and prior to 2001, Singer and its owner Radian was in the business of purchasing, servicing and securitization of assets, including state lottery awards and structured settlement payments....
8. Plaintiff Margaret Turton was in the employment of and providing services for Singer and Radian from 1997 through December 2009.
9. In 2000 or 2001, Singer and Radian decided that Singer would cease all business except to become a “run down” entity, functioning solely for the collection of the then existing structure settlement portfolio.
10. To incentivize select employees to remain with their essentially dead-end business, and to insure that the value of their structured settlement collections be maintained, Singer and Radian offered the 2001 Singer Long Term Compensation Plan (The Plan). The Plan is attached as Exhibit A.
11. In consideration of and in reliance on the promised benefits from The Plan, Turton accepted the offer and, under such contract with Singer and Radian, continued to provide her services to Singer and Radian from 2001 through December 2009.
14. Upon and after resigning her employment in December 2009, Turton has vested rights as a shareholder under the terms of the Plan.
15. Singer, Radian, and Weinberger have failed and refused to recognize the vested rights of Turton as a shareholder of The Plan.
22. The Plan is a contract between plaintiff and defendants Singer and Radian under which money is due and owing to plaintiff since as early as September, 2009.
28. Singer and Radian breached the contract by failing to properly account for funds allocated to the plan, converting Plan funds to their own use, failing to properly account for share allocation among shareholders in the Plan and failure to pay funds currently due plaintiff under The Plan.

Attached to the complaint was a copy of the Plan. The first section of the Plan is entitled “Overview,” in which the following statements are made:

The Singer Employee Long Term Incentive Plan is designed around the value of the structured settlement portfolio owned by Singer. Today, Singer has 2 permanent financing vehicles for structured settlements. These 2 vehicles, one with Industrial Bank of Japan (IBJ) and the other with BMO Nesbit Burns/ MBIA (BMO) each have a subordinate cash flow. The concept of subordination means that Singer hopes to collect a great deal of money after IBJ and BMO have paid in full. Therefore, Singer has a very large financial stake in the collection performance in these assets. It is expected that in the next 15 years, the Singer servicing organization will collect over $83 million for Singer after IBJ and BMO have been paid in full ... This long term incentive plan has been created to share these collections with employees, depending upon the ultimate collection performance of the assets.

Two of the four expressly stated objectives of the Plan are: “Offer enough benefit to employees in order to motivate them to perform their jobs at a high level over a long period of time” and “Create enough disincentives so that employees will not resign their positions.” (emphasis added).

The Plan states its beginning date as July 2, 2001. It provides a formula for how employees will receive shares in the Plan each year and a provision for a minimum of twenty-five shares per employee per year. In a section entitled “Retaining ‘Shares’ Already Earned,” it states:

Employees who have earned ‘shares’ from prior years and whose employment has been involuntarily terminated by Singer will retain 100% of their earned shares, even after they have left Singer. Although, those employees who are terminated involuntarily, due to reasons of cause, will forfeit 100% of all ‘shares’ earned. Employees who voluntarily resign their position at Singer will forfeit 50% of all ‘shares’ they have earned and will retain the remaining 50% of their earned shares.

The Plan further contains formulas for determining the value of shares, how much each shareholder receives for the shares, and how actual payments will be made to shareholders.

In its motion for summary judgment, Singer asserted the Plan is not a contract or even an offer and any compensation provided for in the document can be discontinued at any time and is purely discretionary, thus making the Plan a proposal to provide discretionary income.

In her affidavit in opposition to summary judgment, Turton states,

5. In consideration of and in reliance on the very definite and significant benefits detailed in The Plan, I accepted the offer by remaining in their employment to collect the Plan receivables for eight more years. Under such contract with Singer and Radian, I continued to provide services to Singer and Radian from 2001 through December 2009.
6. If not for the offer of significant compensation under the Plan, I would not have remained in employment with defendants beyond 2001.
7. To encourage me to stay through the years in a dead-end job, management at Singer repeatedly pointed with great pride to the very significant monies I had earned and would continue to earn under The Plan. At their urging, and for the benefit of myself and, eventually, my child, I remained and worked year after year in reliance on The Plan. The explicit agreement was that if I stayed, they would pay. I stayed.

In granting summary judgment, the trial court found that there is no explicit language in the Plan stating that it constitutes a binding contract and that the Plan was merely a unilateral expectation. In support of its conclusion, the trial court cited OneSource Facility Services v. Mosbach, 508 F.Supp.2d 1115 (M.D.Fla.2007). Subsequent to entry of the order granting summary judgment to Singer, the trial court entered a final judgment in favor of Singer and Radian. In the final judgment, the trial court included language purportedly amending the summary judgment to include Radian, even though Radian never moved for summary judgment.

Legal Analysis

Turton argues before us, as she did below, that the Plan constituted a written offer and her continued employment was her acceptance of the offer. Singer and Radian argue that the Plan is merely an employer memorandum that expresses “discretionary employment compensation based on future predictions and future employment performance.” They further assert the Plan cannot be a contract because it was not signed by Turton. They also argue that even if the Plan was an offer, there was insufficient summary judgment evidence to show an acceptance or meeting of the minds necessary for the formation of a contract.

OneSource, the primary legal authority cited by Singer in its motion for summary judgment and the sole case cited by the trial court in the order granting summary judgment, affirmed a summary judgment in favor of the employer on three bases: (1) according to well-established Florida law, policy statements in employee manuals do not give rise to enforceable contract rights unless there is specific language which expresses the parties’ mutual agreement that the manual constitutes a separate employment contract; (2) the provisions in the contested document gave the employer the right to amend, terminate or modify the compensation plan at any time; and (3) the plan was not signed by the employee. OneSource, 508 F.Supp.2d at 1123-24. If this case involved a similar future compensation plan based solely upon Turton performing work, we would agree the legal reasoning in OneSource is applicable to the instant facts. However, the legal reasoning in OneSource does not properly apply to the alleged facts in this case for three reasons.

OneSource is distinguishable from the facts of this case because the document at issue in OneSource contained language such as “[p]articipants will not have any vested rights to the MIC payment,” and “the Company may terminate, amend or modify the MIC payment in any respect, at any time.” Id. At 1122 No similar language is found in the Plan. Despite Singer’s arguments to the contrary, there is no language in the Plan which makes future compensation illusory because it is discretionary with the employer or plan administrator.

More importantly, the legal reasoning in OneSource, premised on the well-established Florida law that policy statements in employee manuals do not give rise to enforceable contract rights, does not fully resolve this case because the facts alleged in Turton’s complaint and affidavit in opposition to summary judgment allege the Plan was not only designed to compensate employees for hard work, but also to corn-pensóte valued employees for not quitting a dying business. There is a logical distinction between offering an employee future compensation if he or she works well and offering future compensation if the employee agrees not to quit. Nothing in the facts argued by both sides suggests that Turton’s employment was for a stated period of time. Thus, Turton’s employment was at will, and she could quit at any time without liability. See Muller v. Stromberg Carlson Corp., 427 So.2d 266, 270 (Fla. 2d DCA 1983) (“It is settled in law in Florida that an employment contract which is indefinite as to term of employment is terminable at the will of either party without cause.”). It can be inferred from the facts alleged in the complaint that Singer knew it could not collect the money it was expecting if employees started quitting once it was known only two major assets remained and no new assets would be coming in. One can also infer from the alleged facts that it was more important for Singer to keep employees from quitting than it was to motivate them to work harder.

Finally, the fact that Turton did not sign the Plan is not dispositive. She alleged the Plan constituted an offer and her continued employment was her acceptance. To the extent the Plan can be construed as a continuing promise of future compensation if Turton agreed not to quit, her continued performance of her job was acceptance, unless some reason, other than the Plan, was her primary motivation to continue working. See Bullock v. Harwick, 158 Fla. 834, 30 So.2d 539, 542 (1947) (the acceptance of an offer may be in writing, by parol, or by acts, but in whatever mode the assent must be in some overt manner, by some overt act).

The core issue in this case is whether the transmission of the Plan to Turton constituted a continuing offer to avoid Turton’s resignation and whether Turton’s continued employment was a continuing acceptance of the offer. Because the intent of the parties is in question, this case cannot be properly disposed of by summary judgment. As a result, we reverse the summary judgment in favor of Singer and remand the case to the trial court for further proceedings consistent with this opinion. We also reverse the summary judgment in favor of Radian because Radian never moved for summary judgment. Univ. of Miami v. Sosa, 629 So.2d 172, 174 (Fla. 3d DCA 1993) (“Although not unauthorized, it is not generally accepted practice to enter summary judgment in favor of a nonmoving party.”). Because both summary judgments are reversed, the final judgment is vacated.

Reversed and remanded.

TAYLOR and MAY, JJ., concur.

      . Weinberger was the Plan administrator. Turton’s complaint contains a count solely against Weinberger for breach of fiduciary duty; however, that count is not an issue on appeal.

      . Radian's motion to dismiss was never heard by the trial court prior to the entry of the final judgment in favor of both Singer and Radian.

        . In her affidavit in opposition to summary judgment, Turton stated, “Singer repeatedly pointed with great pride to the very significant monies I had earned and would continue to earn under The Plan,” indicating that Singer repeatedly acknowledged its offer was ongoing and recognizing her acceptance of the offer.


text:
    John HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1682.
    District Court of Appeal of Florida, Second District.
    Sept. 4, 2013.
    John Hayes, pro se.
   NORTHCUTT, Judge.

In 2010, John Hayes pleaded guilty to delivery of cocaine and possession of cocaine and was sentenced to forty-eight months in prison. He thereafter filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. He now appeals the summary denial of that motion. We affirm the denial of ground two of Hayes’ motion without cornment. We reverse the denial of ground one and remand for further proceedings.

In ground one, Hayes claimed that his attorney was ineffective for misinforming him about the availability of an entrapment defense and for failing to pursue that defense. He alleged that but for counsel’s omission, he would not have pleaded and would have gone to trial. The postconviction court found that ground one was conclusively refuted by Hayes’ plea colloquy.

The transcript of the plea colloquy reflects that when asked by the trial court if he was satisfied with his attorney’s services, Hayes answered “yes.” Hayes also answered “no” when asked if there were any other witnesses he wanted counsel to contact or any discovery or investigation he wanted counsel to conduct prior to entering the plea. But acknowledgements and answers of that general nature did not conclusively refute Hayes’ allegation of ineffective assistance based on his counsel’s failure to pursue a specific defense. See Zanchez v. State, 84 So.3d 466, 468 (Fla. 2d DCA 2012) (holding that “a generalized discussion of the motions or defenses that were being waived” did not preclude a claim of ineffective assistance of counsel for failing to move to suppress evidence); Nelson v. State, 996 So.2d 950, 952 (Fla. 2d DCA 2008) (holding that the defendant’s general acknowledgments at the plea colloquy did not establish that his claim of ineffective assistance of counsel for failure to move to suppress statements was an attempt to go behind the plea). The trial court did not ask Hayes specifically whether his attorney had discussed entrapment as a defense, and therefore his postconviction claim was not refuted by the transcript of the plea colloquy. See Jones v. State, 846 So.2d 1224, 1226 (Fla. 2d DCA 2003) (“Because the matter at issue was not discussed when the plea was taken, the plea colloquy does not refute the claim.... ”).

Accordingly, we reverse the denial of ground one and remand to the postconviction court to revisit it. We encourage the court to expedite its proceeding on remand, as Hayes’ term of imprisonment may soon expire. Should the postconviction court again determine that it should summarily deny this claim, it shall attach those portions of the trial court record that conclusively refute the allegation. Otherwise, the court shall conduct an evidentia-ry hearing.

Affirmed in part, reversed in part, and remanded.

CRENSHAW and SLEET, JJ, Concur.


author: SAWAYA, J.

text:
    STATE of Florida, Petitioner, v. Rudolfo CARAGOL, Respondent.
    No. 5D13-435.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2013.

      Jeff Ashton, State Attorney, and Rafael 0. Rodriguez, Assistant State Attorney, Orlando, for Petitioner.
    Shon Douctre, of Private Counsel, LLC, Orlando, for Respondent.
   SAWAYA, J.

Rudolfo Caragol was convicted in 2002 of lewd or lascivious battery on a person over twelve but less than sixteen years of age in violation of section 800.04(4)(a), Florida Statutes (2001). This conviction necessitated his registration as a sexual offender for life. § 943.0435, Fla. Stat. (2001). Ten years later, he petitioned to have that registration requirement removed pursuant to section 943.04354(3)(b), Florida Statutes (2012), which requires, among other things, that Caragol be no more than four years older than the victim, who must have been fourteen years of age but not older than seventeen years of age at the time of the offense. §§ 943.04354(l)(c), (3)(b), Fla. Stat. (2012). The trial court rendered an order granting Caragol’s petition and the State filed its Petition for Writ of Certiorari seeking review of that order. The question presented is whether the statutory age requirement was established by Caragol.

This case is emblematic of a societal problem we see too often that occurs when individuals, who are far too young, become entangled in the tender affairs of the heart only to discover later the unforeseen consequences of their intimate relationship. The consequences were particularly dire for Caragol, who revealed that he never foresaw that his sexual escapades with his younger lover (the victim) would entangle him in the criminal justice system. According to the State, the younger lover (born May 29, 1988) was a freshman in high school and thirteen-years-old at the time of the offense, and Caragol (born November 19, 1982) was a senior and over the age of eighteen. When this relationship was discovered, Caragol was charged with the crime previously mentioned, which was alleged by the State to have occurred July 15, 2001, through January 15, 2002. He entered a plea and was sentenced to thirteen months in prison followed by four years of sexual offender probation. As an aside, Caragol subsequently violated his probation when he committed a new law violation and was sentenced to four years in prison followed by five years of administrative probation.

The Legislature enacted section 943.04354, Florida Statutes (in 2007, which makes it a relatively new enactment), in apparent recognition of the rather harsh consequences that often result from compliance with the sexual offender registration requirements. This statute allows certain defendants to free themselves from the stigma and burdens associated with that designation provided they establish the statutory criteria have been met. Therefore, to avail himself of the statute’s removal provisions, Caragol was required to allege (in a properly filed petition) and establish enumerated statutory criteria that includes the age requirements concerning himself and the victim. See § 943.04354(l)(c), Fla. Stat. (2012) (requiring the defendant to allege and establish that he “[i]s not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation.”); § 943.04354(3)(b), Fla. Stat. (2012) (requiring a petition be filed alleging that all of the requirements of subsection one of the statute are met). We specifically address the age criterion to the exclusion of the others because it constitutes the contested issue between the parties.

An evidentiary hearing was held pursuant to section 943.04354(3)(b), and the order granting Caragol’s petition was rendered. Analysis is somewhat hampered because the order is terse and cryptic, revealing no explanation or basis for the trial court’s decision. If the trial court does not provide an order with findings, it will be necessary for this court to resort to the transcript to determine the propriety of the decision. See Matos v. State, 111 So.3d 964, 967 (Fla. 5th DCA 2013) (“[T]he court must set forth the basis of its determination.” (citing Clark v. State, 95 So.3d 986, 989 (Fla. 2d DCA 2012) (“When a statute provides no guidelines to assure that trial courts render similar results in similar cases, it is more important for trial courts to explain their reasoning.”))).

The transcript reveals that Caragol spent most of the hearing bemoaning the hardships he has endured as a result of his conviction. The transcript also reveals that Caragol misrepresented to the court that he was seventeen years old at the time of the offense, despite having previously alleged in his petition that it is “undisputed” his date of birth is November 19, 1982, “making him between 18 and 19 at the time of the offense dates” (remember the Information alleged the offense occurred July 15, 2001, through January 15, 2002). Caragol never introduced evidence of the victim’s age or date of birth, arguing instead that because the Information alleged that the victim was between twelve and fourteen (the Information alleged an age range of over twelve but less than sixteen), it was possible she was over the age of fourteen at the time of the offense and that there was no more than a four-year age gap between her and Caragol. Apparently concluding, and we think correctly so, that this sort of speculation and conjecture is not competent, substantial evidence to establish the victim’s age, see Matos, 111 So.3d at 966 (holding that the finding that defendant’s “sexual conduct with the victim was not consensual is not supported by competent, substantial evidence”), the trial court acknowledged, when pressed by the State, that the age criterion had not been established. The trial court nevertheless granted the petition and gave the following explanation for its ruling:

This is one of the most perplexing fields judges have to work with and that’s the application of the habitual sexual offender registration law. We’re well aware of the oftentimes insurmountable burden it places on someone to have to register with it and we’re always faced with whether the factual circumstances facing us are really the circumstances that the statute was intended to protect society from. I am not persuaded that the circumstances in this case are best served by requiring him to function as a registered sex offender. I’m going to grant the motion.

Our certiorari review requires that we determine whether granting Caragol’s petition based on this rationale constitutes a departure from the essential requirements of the law resulting in a miscarriage of justice. See State v. Welch, 94 So.3d 631 (Fla. 2d DCA 2012).

The age criterion is one of several statutory requirements that must be established in order to bestow on the trial court the discretion to remove the offender registration requirement. See § 943.04354(3)(b), Fla. Stat. (2012) (“The court shall rule on the petition and, if the court determines the person meets the criteria in subsection (1) and removal of the registration requirement will not conflict with federal law, it may grant the petition and order the removal of the registration requirement.” (emphasis added)); Vann v. State, 99 So.3d 633, 633 (Fla. 1st DCA 2012) (“In order to qualify for removal of the registration requirement, appellant had to establish he was ‘not more than 4 years older than the victim’ pursuant to section 943.04354(l)(c), Florida Statutes.”); State v. Samuels, 76 So.3d 1109, 1110-11 (Fla. 5th DCA 2011) (determining that the defendant was not entitled to removal because he was four years, one month, and twenty-one days older than the victim and therefore did not meet the requirement of section 943.04354(1)(c)); State v. Marcel, 67 So.3d 1223, 1225 (Fla. 3d DCA 2011) (“If a defendant is one day past the four-year eligibility limit prescribed by section 943.04354 of the Florida Statutes, he is ineligible to petition for relief.”).

Here, the trial court disregarded one of the statutorily-mandated eligibility requirements for removal, instead basing its ruling solely on its belief that the factual circumstances presented before it are not the “circumstances that the statute was intended to protect society from.” The trial court did not have the discretion to remove this designation absent a finding that Caragol qualified under section 943.04354 (and that necessarily included a finding that the age criterion was established). We believe that the order under review constitutes a departure from the essential requirements of the law that results in a miscarriage of justice. See Welch, 94 So.3d at 634 (concluding that the trial court’s order granting the removal petition constituted a departure from the essential requirements of the law resulting in a miscarriage of justice because the trial court misapplied the plain language of the statute and because Welch, who was four years, two months, and twenty days older than the victim, did not qualify for removal of the designation).

While Caragol may present himself as a sympathetic figure who has paid dearly for his youthful indiscretions, and while his plight may be regrettable and unfortunate, this court is bound by precedent and the unambiguous requirements of the statute. For us to accept the reasoning of the trial court as a valid basis for denying the State’s petition would necessarily require that we judicially rewrite the statute and delete one of the statutory criteria the Legislature has made mandatory. This we cannot and will not do. The Petition for Writ of Certiorari is granted and the order under review is quashed.

PETITION GRANTED and ORDER QUASHED.

EVANDER and BERGER, JJ., concur.

      . We note an anomaly of sorts that permits a dissatisfied defendant to appeal an order denying a motion under section 943.04354, while the State is required to seek certiorari review of an order granting such a motion. See Fla. R.App. P. 9.140(c) (an order granting a motion under the statute is not included in the list of orders from which the State may take an appeal); State v. Welch, 94 So.3d 631, 633 (Fla. 2d DCA 2012).


text:
    Thomas Francis TAVERNIER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2636.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2013.
    Thomas Francis Tavernier, Monticello, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, 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 judgment and sentence in case no. 42-2009-CF-004245, in the Circuit Court in and for Marion County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and LAWSON, JJ., concur.


text:
    Craig Dale GOLDEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2535.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2013.
    Robert Wesley, Public Defender, and Joanna Snow, Assistant Public Defender, Orlando, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, 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 judgment and sentence in Case No. 2011-CF-009263-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, COHEN and BERGER, JJ., concur.


text:
    Manuel TELLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1597.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2013.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant entered a plea and was orally adjudicated guilty of grand theft of property valued at $100,000 or more, grand theft of a motor vehicle, and resisting an officer without violence. He was sentenced on each conviction. We affirm the judgment and sentence imposed. However, the written judgment shows that adjudication of guilt was withheld for the grand theft of a motor vehicle offense. This is not in conformity with the oral pronouncement. Therefore, we affirm the judgment and sentence imposed, but remand for correction of the scrivener’s error in the judgment.

AFFIRMED; REMANDED for correction of scrivener’s error.

SAWAYA, ORFINGER and BERGER, JJ., concur.


text:
    Joshua G. DOVE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1568.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2013.
    Joshua G. Dove, Chipley, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Joshua G. Dove appeals an order denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking additional jail credit against his five-year prison sentence. The trial court denied Dove’s motion without reaching its merits, reasoning that rule 3.850 is only intended for use to collaterally challenge a conviction, and is therefore “not appropriate for the relief’ sought (jail credit). This is not correct. A jail credit claim that cannot be determined based upon the face of the record must be raised in a timely rule 8.850 motion if it is to be considered at all. See, e.g., Schlumpf v. State, 76 So.3d 406 (Fla. 2d DCA 2011). As Dove’s motion was filed within two years of the judgment and sentence becoming final, included the requisite oath, and otherwise met the content requirements of rule 3.850, it should have been considered on the merits. Accordingly, we reverse the trial court’s order and remand for a hearing on Dove’s rule 8.850 motion.

REVERSED AND REMANDED.

PALMER, LAWSON and COHEN, JJ., concur.


text:
    Travis PENNINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-175.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2013.
    James S. Purdy, Public Defender, and Shannon Timmann, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Harley Pennington (defendant) appeals his sentence, imposed by the trial court on his conviction for leaving the scene of an accident with death. Determining that the trial court erred in increasing the defendant’s sentence after it had been earlier affirmed on direct appeal, we reverse.

This appeal is the second direct appeal filed by the defendant in connection with his prosecution for driving under the influence (DUI) manslaughter.

The defendant’s initial charges included committing the offenses of DUI manslaughter with the failure to render aid and leaving the scene of an accident with death. The matter proceeded to trial before a jury. The jury returned a guilty verdict on the lesser-included offense of DUI manslaughter, and found the defendant guilty on the leaving the scene of an accident with death charge. The court entered judgment on the convictions, and then sentenced the defendant to a term of 146 months’ incarceration followed by 80 months’ probation on the DUI manslaughter conviction and to a consecutive term of fifteen years’ probation on the leaving the scene of an accident with death conviction.

The defendant appealed his convictions claiming, among other things, that the trial court erred in denying his motion for entry of a judgment of acquittal on the DUI manslaughter charge. Our court issued an opinion holding that, while there “was sufficient evidence that [the defendant] was intoxicated and drove his vehicle ... the proper conviction is for driving under the influence of alcohol.” Pennington v. State, 100 So.3d 198, 200 (Fla. 5th DCA 2012). As such, our court reversed the defendant’s DUI manslaughter conviction and remanded the case to the trial court to enter an amended judgment and sentence. The court further held that the defendant’s “conviction and sentence for leaving the scene of an accident with death is affirmed.” Id.

On remand, the trial court sentenced the defendant to a term of nine months’ imprisonment on the DUI conviction. With respect to the leaving the scene of the accident with death conviction, the trial court re-sentenced the defendant to a term of 12 years’ imprisonment, concurrent with the DUI sentence, followed by a period of 15 years of supervised probation.

The defendant argues that the trial court erred by increasing the sentence on his leaving the scene of an accident with death conviction from fifteen years’ probation to twelve years’ imprisonment followed by fifteen years’ probation because, among other reasons, his conviction and sentence on that charge were affirmed by this court on direct appeal. We agree.

In Fasenmyer v. State, 457 So.2d 1361 (Fla.1984), our Supreme Court held that trial courts are not authorized, on remand after direct appeal, to modify sentences on convictions not disturbed by the appellate court.

We conclude that the concept of aggregate sentencing on interdependent offenses as it relates to a trial judge’s desire to effect the original sentencing plan does not justify modification, on remand after appeal, of sentences on convictions not challenged on appeal or disturbed by the appellate court.

Id. at 1365-1366. See also Carlin v. State, 648 So.2d 261 (Fla. 5th DCA 1994); Ruffin v. State, 589 So.2d 403 (Fla. 5th DCA 1991); McKinley v. State, 519 So.2d 1154 (Fla. 5th DCA 1988); Kelly v. State, 508 So.2d 788 (Fla. 5th DCA 1987).

Accordingly, the defendant’s sentence on his conviction for leaving the scene of an accident with death is reversed, and this matter is remanded with instructions to re-instate the defendant’s original sentence. In all other respects, we affirm.

AFFIRMED in part; REVERSED in part; REMANDED.

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


author: WALLIS, J.

text:
    STATE of Florida, Appellant, v. James Arthur JENKINS, Appellee.
    No. 5D12-3369.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    Carlus L. Haynes, Orlando, for Appel-lee.
   WALLIS, J.

The State appeals the lower court’s order suppressing James Arthur Jenkins’ gun, which fell from his waistband as the police detained him on public property in front of a private residence upon which the police were executing a search warrant. According to testimony, Jenkins’ car was parked at the residence. The initial order, prepared by defense counsel, included factual findings, which the State disputed through a motion for rehearing. As a result, the lower court entered a short-form order (1) granting the motion to suppress and (2) denying the motion for rehearing. The lower court made no written findings of fact or conclusions of law in the order; instead, the court incorporated the findings and holdings that were expressed in open court during the suppression hearing. In its oral finding, the lower court found only that Jenkins was on the city’s property in front of the premises to be searched. Relying on Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the lower court granted the motion to suppress. This appeal followed.

“A trial court’s ruling on a motion to suppress comes to us clothed with a presumption of correctness and, as the reviewing court, we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Murray v. State, 692 So.2d 157, 159 (Fla.1997) (citation omitted). We “review de novo the legal question of whether there was probable cause given the totality of the factual circumstances.” State v. D.R., 67 So.3d 372, 373 (Fla. 3d DCA 2011) (citing Twilegar v. State, 42 So.3d 177, 192 (Fla.2010)). We defer to the lower court’s factual findings if they are supported by competent, substantial evidence. Id. However, when a lower court makes insufficient findings of fact, we remand for the lower court to make necessary findings because we are precluded from making factual findings in the first instance. Douglass v. Buford, 9 So.3d 636, 637 (Fla. 1st DCA 2009) (citing In re Doe, 932 So.2d 278, 283 (Fla. 2d DCA 2005)).

A search warrant for a premises permits the detention of the occupants of that premises so long as those occupants are located inside the premises or within its immediate vicinity. Bailey v. United States, - U.S. -, -, 133 S.Ct. 1031, 1042, 185 L.Ed.2d 19 (2013). The Bailey Court did not define the phrase “immediate vicinity” but set forth factors for courts to consider in determining whether an occupant of the premises to be searched, pursuant to a warrant, was detained within the immediate vicinity of the premises. Id. The factors listed in Bailey to determine whether an occupant was within the immediate vicinity include the “lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” Id. Jenkins’ presence on a public street, without more, is insufficient to determine whether the detention was an unreasonable seizure within the meaning of the Fourth Amendment. We reverse and remand for the lower court to make further findings and conclusions in accordance with the factors set forth in Bailey.

REVERSED and REMANDED.

PALMER and ORFINGER, JJ., concur.


author: PALMER, J.

text:
    Brandon E. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3923.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2013.
    Valarie Linnen, Atlantic Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Brandon Washington (defendant) appeals his judgment and sentences, entered by the trial court on the charges of armed burglary of a dwelling and attempted armed home-invasion robbery. We reverse the defendant’s conviction and sentence for attempted armed home-invasion robbery on double jeopardy grounds.

The State charged the defendant with, among other offenses, armed burglary of a dwelling and attempted armed home-invasion robbery. The matter proceeded to trial before a jury. The jury returned a verdict of guilty on all charges. The trial court entered a judgment in accordance with the jury’s verdict, and sentenced the defendant to a life sentence on the armed burglary of a dwelling conviction and a concurrent sentence of fifteen years’ imprisonment on the attempted armed home-invasion robbery conviction.

The defendant argues that the trial court violated the prohibition against double jeopardy by entering a conviction and sentence on both the armed burglary of a dwelling conviction and the attempted armed home-invasion robbery conviction because both convictions arose out of the same incident. Schulterbmndt v. State, 984 So.2d 542 (Fla. 2d DCA 2008), and Olivera v. State, 92 So.3d 924 (Fla. 4th DCA), review denied, Olivera v. State, 104 So.3d 1086 (Fla.2012), support the defendant’s double jeopardy claim, and the State commendably concedes error. See also Jules v. State, 113 So.3d 949 (Fla. 5th DCA 2013) (holding that the defendant’s home-invasion robbery conviction violated double jeopardy because it arose from the same incident as the defendant’s burglary with an assault or battery conviction); Mendez v. State, 798 So.2d 749 (Fla. 5th DCA 2001) (explaining that burglary of a dwelling with an assault or battery is subsumed by the offense of home-invasion robbery).

Accordingly, the defendant’s conviction and sentence for attempted armed home-invasion robbery are reversed. We affirm in all other respects.

AFFIRMED in part; REVERSED in part; and REMANDED.

TORPY, C.J. and ORFINGER, J., concur.

      . See § 810.02, Fla. Stat. (2007).

      . See §§ 812.135, 777.04, Fla. Stat. (2007).

      . Although the defendant did not raise any double jeopardy claim below, a double jeopardy violation constitutes fundamental error which can be raised for the first time on direct appeal. Bell v. State, 114 So.3d 229, 230 (Fla. 5th DCA 2013) (citing to Bailey v. State, 21 So.3d 147 (Fla. 5th DCA 2009)).