author: GERBER, J.

text:
    K.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-515.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

The juvenile appeals from the circuit court’s disposition order finding him guilty of trespass on property, withholding adjudication, and issuing him a stern judicial warning. The juvenile argues that the court erred in denying his motion for judgment of dismissal. We agree with the juvenile’s argument. We reverse and remand for dismissal of the trespass charge.

The trespass allegedly occurred at a city park. The park’s entrances contain signs stating that the park is closed from sunset to sunrise and that a violation is punishable as a trespass. Law enforcement officers patrol the park because of numerous crimes there.

After sunset one evening, officers observed a group of ten people, including the juvenile, inside the park. The people were not doing anything illegal or dangerous. However, when the officers approached, the people ran. The officers detained them. The officers warned them to “stay out of the park” and “don’t come back.”

The following afternoon, while the park was open, the officers saw some of the same people, including the juvenile, inside the park. The officers arrested the juvenile for trespass. The state then charged the juvenile via a petition for delinquency with trespass.

After the state presented its evidence at the delinquency hearing, the juvenile moved for a judgment of dismissal. He argued that, at the time of the arrest, the park was open. The circuit court denied the motion.

The court found the juvenile guilty. The court withheld adjudication and gave the juvenile a stern judicial warning to “stay out of the park.”

This appeal followed. The juvenile argues the circuit court erred in denying his motion for judgment of dismissal. Our review is de novo. See T.W. v. State, 98 So.3d 238, 242 (Fla. 4th DCA 2012) (the standard of review applicable to a motion for judgment of dismissal in a juvenile ease is de novo).

We agree with the juvenile’s argument. The officers did not see the juvenile engaging in any activity while the park was closed which justified warning him to “stay out of the park” while the park was open. Based on the foregoing, the circuit court erred in denying the juvenile’s motion for judgment of dismissal. See State v. J.P., 907 So.2d 1101, 1116-18 (Fla.2004) (while protecting juveniles from victimization and reducing juvenile crime satisfy the compelling interest prong of the strict scrutiny test, a restrictive action cannot include “otherwise innocent and legal conduct by minors”). We reverse and remand for dismissal of the trespass charge against the juvenile.

Reversed and remanded for proceedings consistent with this opinion.

STEVENSON and CONNER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willie MANSFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4530.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Willie Mansfield, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Willie Mansfield appeals the summary denial of his pro se motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the trial court’s order as to claims 1-2 and 6-7 of the motion, but reverse summary denial as to points 3-5 and remand for further proceedings.

Appellant was convicted after a jury trial of burglary of a structure with battery, grand theft, and battery after he allegedly entered a business looking for employment, stole a laptop computer, then struck a current employee outside the premises. Appellant gave a statement to police upon arrest, denying he entered the business structure and claiming self-defense when accosted by three employees of the business. This statement was introduced by both the State and defense at trial, constituting the only evidence in support of the self-defense theory presented by appellant. Appellant’s direct appeal resulted in an opinion which rejected his sufficiency of the evidence argument as to his burglary with battery conviction, but vacated his battery conviction as violating double jeopardy and reduced his grand theft conviction to petit theft. Mansfield v. State, 954 So.2d 74, 76-77 (Fla. 4th DCA 2007). He then timely filed the pending motion for post-conviction relief, raising seven claims, all denied by the trial court without hearing.

We agree with the trial court that summary disposition was appropriate as to four of the grounds for post-conviction relief presented by appellant, specifically points 1-2 and 6-7. However, the remaining claims require further proceedings in the trial court. Appellant’s third ground for post-conviction relief alleged that despite his desire to testify concerning his self-defense claim, trial counsel failed to inform the trial court of this fact. Appellant had stated in open court in response to questioning by the trial court that he would not be presenting any evidence or witnesses on his behalf. While appellant’s in-court waiver of his right to testify would support a finding that the waiver was voluntary, a separate question not answered by the colloquy was whether counsel’s advice not to testify was reasonable under the circumstances; if not, appellant’s waiver would not be voluntary due to misad-vice. See, e.g., Lott v. State, 931 So.2d 807, 819 (Fla.2006); Visger v. State, 953 So.2d 741, 745 (Fla. 4th DCA 2007) (advice not to testify unreasonable where only defendant could supply testimony supporting defense to burglary charge). Thus, remand on this issue is necessary for the trial court to either attach additional portions of the record, if any, refuting appellant’s allegations or hold an evidentiary hearing on this claim. Simon v. State, 47 So.3d 883, 886 (Fla. 3d DCA 2010).

Appellant’s fourth ground for post-conviction relief alleged that the trial court erred in instructing appellant’s jury on the “forcible felony” portion of Florida Standard Jury Instructions in Criminal Cases 3.6(g) (“the use of force not likely to cause death or great bodily harm is not justified if you find [appellant] was attempting to commit, committing, or escaping after the commission of a burglary”), as doing so effectively directed a verdict against appellant’s self-defense claim. Subsequent to the decision on appellant’s direct appeal in Mansfield v. State, 954 So.2d 74 (Fla. 4th DCA 2007), the Florida Supreme Court modified instruction 3.6(g) to prohibit giving the instruction where, as here, the defendant is not charged with an independent forcible felony beyond the charge to which the self-defense claim applies. In re Standard Jury Instructions in Criminal Cases, 976 So.2d 1081, 1084 (Fla.2008); Martinez v. State, 981 So.2d 449, 453 (Fla.2008). The Florida Supreme Court in Martinez held that an erroneously-given forcible felony instruction does not per se constitute fundamental error where no contemporaneous objection is raised at trial, and the parties did not utilize the instruction in arguing for or against self-defense to the jury during closing argument, or the evidence for self-defense was weak or improbable. 981 So.2d at 456. Since the portions of the record relied on by the trial court did not include the opening statements or closing arguments of the parties, this issue must likewise be reversed and remanded for attachment of portions of the record justifying summary disposition or for the trial court to hold an evidentiary hearing.

Finally, appellant’s fifth ground for post-conviction relief alleged trial counsel should have moved for curative instruction and/or mistrial when the trial court sustained two objections to questioning by the State of the police officer who took appellant’s post-arrest police statement which asked whether the officer thought appellant’s answers were “evasive.” Despite these objections both being sustained, the officer’s “yes” response to one of the questions was not stricken from the record. Clearly this line of questioning was improper as soliciting an opinion on appellant’s truthfulness, Charles v. State, 683 So.2d 583, 584 (Fla. 4th DCA 1996), and since the only evidence introduced at trial on the question of self-defense was contained in the police statement, any improper discrediting of the statement had the potential to prejudice appellant. Accordingly, remand for further proceedings is also required as to this claim.

Affirmed in part, Reversed in part and Remanded for further proceedings consistent with this opinion.

POLEN, CIKLIN and GERBER, JJ., concur.


text:
    Gil L. SERRANO, Onelia Serrano and Tiulang Valdes, Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Asset-Backed Pass-Through Certificates, Series 2007-PA1, Appellee.
    No. 4D11-1767.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Garry W. Johnson and Bruce K. Herman of 511-Law.com, Fort Lauderdale, for appellants.
    Donna L. Eng and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Appellants Gil L. Serrano, Onelia Serrano, and Tiulang Valdes, defendants below, appeal a final summary judgment of foreclosure in favor of appellee HSBC Bank USA, N.A. as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Asset-Backed Pass-Through Certificates, Series 2007-PA1. We reverse the summary judgment because there remains a genuine issue of material fact regarding whether appellee complied with the condition precedent contained in the mortgage to provide pre-suit notice of acceleration. See Dominko v. Wells Fargo Bank, N.A., 102 So.3d 696 (Fla. 4th DCA 2012). We find no merit in the other issues briefed by appellants.

Reversed and remanded.

STEVENSON, GERBER and CONNER, JJ., concur.


author: GROSS, J.

text:
    Alan DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-343.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Charged with attempted second degree murder, kidnapping, and criminal mischief, Alan Dixon was convicted of aggravated battery causing serious bodily injury after a jury trial. We reverse because the trial court erroneously excluded evidence that was admissible either as non-hearsay or as an exception to the rule against hearsay.

The State’s Evidence

The victim, an adult entertainer, resided in one of the two adjacent hotel rooms she shared with Dixon and another entertainer named Juanice. Although Dixon later testified that he had a boyfriend-girlfriend relationship with the victim, she described him as her pimp, a characterization that Dixon denied.

Around 2:30 a.m. on the night of the incident, the victim was in her hotel room when Dixon returned from a night out noticeably drunk; his eyes were “half closed” and his friend had to assist him to get into bed. Knowing that Juanice was still out working, the victim waited for Dixon to fall asleep and then relocated to the adjacent room.

Shortly thereafter, the victim looked out the window and saw Dixon with Juanice in the hotel parking lot, putting Juanice’s “bags on the street” before leaving in a car with his friend. The victim then received a call from Dixon, in which he angrily stated that “he didn’t want anything to do with [the victim or Juanice] anymore.”

About an hour later, Dixon and his friend returned to the hotel. They approached the victim’s room, loudly banged on her door, and yelled her name; afraid for her safety, the victim did not respond. Dixon then broke a window to her hotel room, scaring the victim and causing her to run out the front door in an attempt to escape. Dixon’s fingerprints were found on the broken window shards.

After the victim got out of the room, Dixon chased her and knocked her down in a grassy area near the parking lot. Once he subdued her, Dixon pummeled her with a flurry of punches and kicks and ended by stomping on her. Dixon then grabbed the victim by her hair and dragged her to the concrete parking lot, where he hit her about five to six more times, knocking her unconscious.

Several hours later, the victim regained consciousness and found herself in a different hotel than the one where the fight occurred. Dixon was not present when she awoke, and after a short moment, the police and an ambulance arrived. The victim had trouble remembering what transpired during the beating. Initially, she told the officers that she banged her head after falling while drunk. Days later, after looking at her injuries in a mirror, she reported to the police that Dixon had hit her.

The victim’s testimony was corroborated by a resident of the hotel, who testified that on the night of the incident she exited her hotel room after hearing glass break and saw Dixon arguing with the victim on the walkway underneath. The resident watched as Dixon began “beating on” the victim, repeatedly punching and kicking her while she curled in a fetal position, eventually culminating with Dixon picking the victim up and tossing her to the ground. After the beating stopped, Dixon grabbed the victim and “threw her in the car.” To bolster the resident’s testimony, the State presented the audio recording of her phone call to the police, where she described in detail how the beating transpired.

The state also called a doctor specializing in facial trauma who testified that the victim had “some facial lacerations, lip lacerations, trauma to her upper jaw, ... fractured ... tooth, and ... injuries to her right orbit,” requiring the implantation of an absorbable implant. As a result of the reconstructive surgery, the victim will suffer several long term effects, including a slight change in appearance and “puffiness around the lower portion of the eye.”

Theory of Defense

Dixon’s theory of defense was that the victim’s injuries were primarily the result of a prior fight she had with Juanice. Dixon testified that on the night of the incident, he was hanging out with some friends at South Beach when he received numerous phone calls from the victim. Without revealing the contents of the calls, Dixon said he returned to the hotel, but saw neither the victim nor Juanice.

At about 5 a.m., Dixon began receiving more phone calls from the victim, causing him to again return to the hotel. This time, he noticed that one of the windows in the victim’s hotel room was broken. Dixon banged on the victim’s door to find out what was going on, but no one answered. Dixon then left to get breakfast with a friend.

Upon returning to the hotel, Dixon found his dog, which had been in his room, unsupervised in the parking lot and Juan-ice standing near the door to the victim’s room. After Dixon hit on the door in an attempt to defuse hostilities, the victim “all of a sudden” ran out of the room and began to physically fight with Juanice. After watching the women trade blows, Dixon broke up the fight by pulling Juan-ice off the victim. The victim then grabbed Dixon’s keys and ran towards his car, apparently intending to access the trunk, where Dixon kept knives and over-the-counter medication. Knowing that the victim had a history of depression, Dixon caught up to stop her, eventually “knock[ing] her down.”

Dixon pried the keys out of the victim’s hands and made sure that the trunk was closed. He then told the victim, who was still “acting hysterical and screaming and crying,” to get in the car, which she did on her own volition.

At that point, Dixon first observed the victim’s facial injuries, noting that, because the injuries arose from an earlier fight with Juanice, enough time had passed for the bleeding to stop. Dixon and the victim then stayed at a friend’s apartment for about four hours before getting a room at a different hotel. Dixon left the hotel for a bit and when he returned, he encountered police officers.

In closing, defense counsel argued that the State’s conflicting evidence relating to the cause of the injuries was not supported by the physical evidence presented at trial; he contended that blood stains found by the police on the original hotel room’s bed sheets showed that the victim had been engaged in a physical fight before Dixon arrived on the scene. Defense counsel opined that the absence of blood stains in Dixon’s car and in the second hotel room showed that her wounds were the result of the earlier fight.

Victim’s Phone Conversations

While Dixon was testifying, defense counsel on two separate occasions attempted to elicit testimony regarding the contents of the victim’s phone calls to Dixon when he was at South Beach.

In the first instance, after the State objected to the testimony, the trial judge told defense counsel to proffer the proposed testimony:

[Defense Counsel]: That he returned to the motel because he received a phone call from [the victim.] I’m going to establish that it was an excited utterance, she was excited by a recent event. She was crying, screaming, upset, asking him to return home because she just had a fight with ... Juanice.
THE COURT: What’s the nature of the conversation?
[Defense Counsel]: That the complainant in this matter had a fight with the other woman who was at the hotel, Juanice ... and wanted him to come take ... Juanice[ ] out of there because she was scared.

Defense counsel offered two theories of admissibility: that the victim’s statements were an excited utterance or that they were non-hearsay because they explained why Dixon returned to the hotel from South Beach. The trial judge sustained the State’s objection to the testimony.

Later in the trial, defense counsel once again attempted to elicit similar testimony, which showed that Dixon knew upon returning to the hotel that the victim and Juanice had been fighting. To substantiate the argument, defense counsel proffered the following testimony:

[Defense Counsel]: Mr. Dixon, did you receive a phone call from [the victim]?
[Dixon]: Yes, I did.
[Defense Counsel]: Upon receiving that phone call were you able to determine, without saying what anyone said, whether there had been a recent event that caused her to become excited?
[Dixon]: Yes.
[Defense Counsel]: Without saying what she said, how did you know that she was excited? Describe her demeanor.
[Dixon]: Screaming and yelling.
[Defense Counsel]: Was she crying?
[Dixon]: No, just screaming.
[Defense Counsel]: Were you able to determine how long it had been since that exciting event until the time that you received a phone call?
[Dixon]: It was instantly it was going on.
[Defense Counsel]: Could you hear the event going on in the background of the phone call?
[Dixon]: I couldn’t hear the event, no, I didn’t, I couldn’t.
[Defense Counsel]: But you could hear her screaming?
[Dixon]: Yeah, I could hear like making a lot of noise.
[Defense Counsel]: Was she screaming?
[Dixon]: Yes.
[Defense Counsel]: What did she say to you in that phone call?
[Dixon]: ‘You better come get this bitch.”
[Defense Counsel]: Did she say who she was, to whom she was referring by “this bitch”?
[Dixon]: No, she didn’t say who, but I knew.
[Defense Counsel]: How did you know?
[Dixon]: Because [Juanice] was the only one was at the room.
[Defense Counsel]: What did you do as a result of hearing that phone call?
[Dixon]: I went over there to go see what was going on.

The trial court again sustained the State’s objection and disallowed the testimony.

Non-Hearsay Analysis

The trial court erred in excluding the testimony about the two phone conversations because the testimony was admissible either as non-hearsay or under the excited utterance exception to the hearsay rule.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2010). The Supreme Court has recognized that a statement may “be offered to prove a variety of things besides its truth.” Foster v. State, 778 So.2d 906, 914-15 (Fla.2000). If an out of court statement “ ‘is offered for some purpose other than its truth, the statement is not hearsay and is generally admissible if relevant to a material issue in the case.’ ” Jackson v. State, 25 So.3d 518, 530 (Fla.2009) (quoting Penalver v. State, 926 So.2d 1118, 1131 (Fla.2006)).

With a limiting instruction, the first phone conversation was admissible as non-hearsay. It was offered not to prove the truth of its contents — that the victim was scared because she had just had a fight with Juanice — but to show why Dixon returned to the hotel and what he expected to encounter when he returned. Similarly, the contents of the second phone call— “You better come get this bitch” — was not offered to prove that Juanice was a bitch, but to explain why Dixon returned to the hotel. The victim offered little explanation for Dixon’s violence towards her; if treated as non-hearsay, the victim’s statements in the phone calls would have allowed Dixon to recount a full, coherent story of the events. The correct version of the events was the material issue in the case — whether Dixon, for whatever reason, brought a violent conclusion to his business relationship with the victim or whether his role at the hotel was to break up a fight between roommates.

Excited Utterance Analysis

A second basis of admissibility is that the phone call statements were an exception to the section 90.802 rule against hearsay since they qualified as excited utterances within the meaning of section 90.803(2), Florida Statutes (2010). An excited utterance is “[a] statement ... relating to a startling event or condition made while the declarant [is] under the stress of excitement caused by the event or condition.” § 90.803(2), Fla. Stat. (2010).

While an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection.... “[W]here the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.”

Hutchinson v. State, 882 So.2d 943, 951-52 (Fla.2004), abrogated on other grounds by Deparvine v. State, 995 So.2d 351 (Fla.2008) (quoting State v. Jano, 524 So.2d 660, 661 (Fla.1988)) (citations omitted). As explained by the Florida Supreme Court, to constitute an admissible excited utterance, the qualifying statement must relate to “a startling event or condition” and

(1) the declarant must have experienced or witnessed an event startling enough to cause nervous excitement; (2) the statement must have been made while under the stress of excitement caused by the startling event; and (3) the statement must have been made before there was time to contrive or misrepresent.

Evans v. State, 838 So.2d 1090, 1093 (Fla.2002).

The rationale for allowing the excited utterance exception to the rule against hearsay is that such statements “contain sufficient guarantees of trustworthiness in that ‘the declarant does not have the reflective capacity necessary for conscious misrepresentation’ while in a state of excitement.” Strong v. State, 947 So.2d 552, 554 (Fla. 3d DCA 2006) (quoting Rogers v. State, 660 So.2d 237, 240 (Fla.1995)).

Applying the three-part analysis of the Florida Supreme Court, the victim’s fight with Juanice was a startling event sufficient to generate nervous excitement. See, e.g., Harmon v. State, 854 So.2d 697, 699 (Fla. 5th DCA 2003) (finding the first prong met where the declarant “made the statement as he emerged from a bloody fight, an event startling enough to cause nervous excitement”); Hutchinson, 882 So.2d at 951 (finding a fight between defendant and his girlfriend to be sufficiently startling). While requisite “excitement” is “not a matter that is determined exclusively by tone of voice,” Dixon’s description of the victim’s verbal conduct as “crying, screaming, upset, [and] asking [him] ... to return home,” was sufficient to demonstrate that the victim was under the stress of the excitement caused by the fight at the time of her call. Hudson v. State, 992 So.2d 96, 108 (Fla.2008).

The State contends that the statements do not fall within the exception because the statements were not made before there was time to contrive or misrepresent; the State points to Dixon’s statement that he “could not hear a fight going on.” “A statement as to what occurred does not become admissible merely because the victim is still in an excited state.” Charlot v. State, 679 So.2d 844, 845 (Fla. 4th DCA 1996). Rather, if “the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.” Jano, 524 So.2d at 662 (quoting Edward W. Cleary, McCormick on Evidence § 297 at 856 (3d ed. 1984)); see also Hudson, 992 So.2d at 107 (“Time for reflective thought is significant because it also provides time to contrive or misrepresent.”).

However, “[i]f the statement occurs while the exciting event is still in progress, courts have little difficulty finding that the excitement prompted the statement.” Hudson, 992 So.2d at 107 (quoting Jano, 524 So.2d at 662); Beck v. State, 937 So.2d 821, 823 (Fla. 4th DCA 2006) (“ ‘While an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection.’ ” (quoting Hutchinson, 882 So.2d at 951)) (alteration removed).

Here, although Dixon could not actually hear an ongoing fight in the background of the call, he testified that the victim told him over the phone that there was an “ongoing emergency,” namely that she and Juanice were fighting. Also, Dixon described the victim’s testimony as coming the “instant” after the fight occurred, emphasizing its closeness to the event. Under such circumstances, this proffered evidence satisfied the three prongs required for an excited utterance. The credibility of the out-of-court statements is a different matter; the victim was available to contradict Dixon’s version of the calls.

The excluded phone conversations were relevant to Dixon’s case, as they would have allowed the defendant to tell a complete, coherent story of the night’s events and corroborate the defense’s theory as to (1) why Dixon returned to the hotel and, under the excited utterance exception, (2) how the victim sustained her injuries, a crucial material fact because Dixon was convicted of an offense that required the jury to find that he caused the victim “serious bodily injury.”

We do not find the error in excluding the testimony to be harmless. The harmless error rule, as defined in State v. DiGuilio, requires the State to establish “that there is no reasonable possibility that the error contributed to the conviction.” 491 So.2d 1129, 1135 (Fla.1986). This rule “requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” Id. “The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.” Id. at 1139. Given the nature of the evidence and Dixon’s acquittal on two charges, we cannot say beyond a reasonable doubt that a more coherent defense story would not have resulted-in a jury finding that Dixon was not the cause of the victim’s serious injuries.

Reversed and remanded.

POLEN, J., and STONE, BARRY J., Senior Judge, concur.


text:
    R.V., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1753.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

R.V. appeals the trial court’s failure to hold a competency hearing and its disposition order placing him in a moderate risk commitment program. We affirm as to the former. As to the latter, R.Y. argues that the trial court erred in departing from the Department of Juvenile Justice’s recommended placement in a low risk commitment program because the trial court failed to comply with the requirements as set forth in E.A.R. v. State, 4 So.3d 614 (Fla.2009). We agree and reverse.

The trial court committed R.V. to the moderate risk commitment program due to the nature of the offenses committed and because he presents a danger to himself and the community that could not be adequately addressed by a low risk facility. However, the trial court did not articulate why a moderate risk commitment program was better suited than the Department’s recommendation to serving R.V.’s rehabilitative needs, in the least restrictive setting, and protecting the public as E.A.R. requires. Id. at 638. On remand, the trial court must either amend the disposition order to include the required findings that would support a moderate risk commitment program or, if such findings cannot be made, enter a new order imposing the Department’s recommendation of a low risk commitment program.

Reversed and remanded with directions.

POLEN, GROSS, JJ., and SHAHOOD, GEORGE A., Senior Judge, concur.


text:
    Robert TYRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4030.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Kevin Kulik, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant was charged with trafficking in butanediol (count 1); possession of methamphetamine with intent to sell/deliver (count 2); trafficking in MDMA (count 3); and possession/delivery of alprazolam (count 4). He entered into a substantial assistance plea agreement with the State. Under the terms of the plea, Defendant would provide the State with substantial assistance in exchange for a sentence below the statutory minimum. After approximately ten months, the State notified the court that Defendant had failed to comply with the agreement. The court sentenced Defendant to fifteen years imprisonment in count one, seven years in counts two and three, and to five years in count four. He did not file a direct appeal.

Defendant filed a 3.850 motion raising three claims. In particular, he claimed that the terms of the agreement were vague, and that the requirements for providing substantial assistance were never clearly defined. He also challenged the voluntariness of his plea and alleged that the State violated the agreement by engaging in dilatory conduct. In a court ordered response, the State argued that Defendant’s claims should be summarily denied. The trial court rejected the State’s recommendation and set the matter for an evidentiary hearing. At the conclusion of the hearing, the trial court stated that it would take the matter under advisement and make specific findings in its final order. The order, however, contained no factual findings or legal conclusions.

The standard of review of the denial of a motion for postconvietion relief after an evidentiary hearing requires deference to the trial court’s factual findings. See Brancaccio v. State, 27 So.3d 739 (Fla. 4th DCA 2010). An appellate court is not empowered to make findings of fact. See Hunter v. State, 87 So.3d 1273 (Fla. 1st DCA 2012). The trial court was required to set forth the findings and conclusions that showed why Defendant was not entitled to relief on his claims. Absent any such findings, we cannot review the sufficiency of its ruling. The State agrees that remand is necessary.

Therefore, we reverse and remand for further proceedings. On remand, the lower court is directed to make the necessary findings and conclusions of law as required by the rule. See Fla. R.Crim. P. 3.850(d); Jacobs v. State, 80 So.3d 440 (Fla. 4th DCA 2012).

Reversed and Remanded with instructions.

MAY, C.J., GROSS and CIKLIN, JJ., concur.


text:
    Joshua PEREZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D12-781, 4D12-849.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.

      H. Scott Hecker of the Law Offices of H. Scott Hecker, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals the trial court’s denial of his motion for downward departure under section 921.0026(2)(d), Florida Statutes (2012). At the conclusion of appellant’s sentencing hearing, the trial court made several references to appellant not having called a witness from the Department of Corrections to testify. In State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc), we found that the plain language of section 921.0026(2)(d) does not require a defendant to prove that the Department of Corrections “cannot provide the specialized treatment required” in order for a trial court to grant a downward departure under that subsection. Id. at 921 (quoting State v. Hunter, 65 So.3d 1123, 1125 (Fla. 4th DCA 2011) (Warner, J., concurring specially)). Because appellant’s sentencing occurred before we decided Chubbuck, the trial court did not have the benefit of our decision. Accordingly, we reverse and remand for resentencing. We note the following on remand:

[T]he state should have the opportunity to present evidence as to whether the DOC can provide the required “specialized treatment.” However, if the state presents such evidence ... the trial court is not precluded from granting [appellant’s] request for downward departure. Rather, the state’s evidence is merely an additional factor which the trial court may consider in exercising its discretion as to whether to grant [appellant’s] request for downward departure.

Colletta v. State, — So.3d - (Fla. 4th DCA 2012).

Reversed and remanded for resentenc-ing.

WARNER, GERBER and LEVINE, JJ., concur.

      . A "(mjitigating circumstance[ ] under which a departure from the lowest permissible sentence is reasonably justified” includes when a "defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d), Fla. Stat. (2012).


author: KHOUZAM, Judge.

text:
    Randall Scott HODGES, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-209.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2013.

      Randall Scott Hodges, pro se.
   KHOUZAM, Judge.

Randall Scott Hodges appeals the final order entered on August 21, 2012, that granted his motion to withdraw his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850 and that summarily dismissed his motion and his amended motion. At first blush it may appear that Mr. Hodges received the relief he requested; however, from our review of the record, it is clear that Mr. Hodges intended to withdraw only his amended motion addressing claims two and six. We hereby affirm the postconviction court’s order granting his motion to withdraw those claims and dismissing his amended motion. But because Mr. Hodges had no intention of waiving appellate review of the January 15, 2011, order summarily denying claims one, three, four, five, seven, eight, nine, ten, eleven, and twelve, we reverse the final order to the extent that it dismisses his original motion. Accordingly, in this appeal we review the denial of Mr. Hodges’ claims in the order of January 15, 2011, and affirm the denial of all claims except ground nine.

In exchange for pleading no contest to ten counts of grand theft, one count of dealing in stolen property, one count of tampering with physical evidence, twenty-five counts of burglary of a conveyance, two counts of burglary of a dwelling, and eight counts of petit theft and for his admission to violating his probation, the State agreed to a total sentence of ten years’ imprisonment followed by ten years’ probation. The State also agreed not to file charges against Mr. Hodges in two other cases.

Mr. Hodges thereafter filed a rule 3.850 motion for postconviction relief raising twelve grounds. We affirm without discussion all claims except ground nine. In ground nine of his motion, Mr. Hodges argued that his plea was involuntary because the trial court failed to determine a factual basis for his plea. Acknowledging that the parties stipulated to a factual basis, he pointed out that “[a] stipulation with no factual basis in the record is insufficient.” Young v. State, 935 So.2d 1263, 1268 (Fla. 2d DCA 2006); see also Koenig v. State, 597 So.2d 256, 258 (Fla.1992) (“Prior to accepting a plea of no contest, the trial judge must receive in the record factual information to establish the offense to which the defendant has entered his plea.”). Mr. Hodges alleged that he could not be found guilty of his offenses because there is no evidence that he committed any of the crimes. The postconviction court denied this claim on the ground that it should have been raised at trial or on direct appeal. This was error.

When a movant alleges that the trial court failed to determine that there was a factual basis for his plea and that he is innocent of the offense to which he pleaded or that he pleaded to the wrong offense, the movant sets forth a facially sufficient claim for postconviction relief. See Sherwood v. State, 734 So.2d 1050, 1051 (Fla. 1st DCA 1998); cf. State v. Fox, 659 So.2d 1324, 1327-28 (Fla. 3d DCA 1995). Here, we are not able to determine whether a factual basis for the plea was taken. It appears that Mr. Hodges stipulated to the facts of all of the offenses with which he was charged. He responded affirmatively when asked whether his attorney had reviewed with him “every single one” of the probable cause affidavits. However, because the probable cause affidavits are not in the record, the postcon-viction court’s order does not refute Mr. Hodges’ facially sufficient claim. See Farran v. State, 694 So.2d 877, 878 (Fla. 2d DCA 1997). Therefore, we reverse the denial of ground nine and remand for the postconviction court to either attach the portions of the record that conclusively refute Mr. Hodges’ allegation or to hold an evidentiary hearing on the issue of whether there was a factual basis for the plea.

Reversed and remanded with directions.

DAVIS and VILLANTI, JJ., Concur.

      . The prosecutor did state the factual basis for the violation of probation.


author: VILLANTI, Judge.

text:
    Sylvia E. WOODWARD and James L. Woodward, Appellants, v. David OLSON, M.D.; Intercoastal Medical Group; Randi Kauffman, M.D.; and SMH Radiology Associates, P.A., Appellees.
    No. 2D12-420.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2013.

      Amy S. Farrior and Raymond T. Elli-gett, Jr., of Buell & Elligett, P.A., Tampa; and William E. Hahn of William E. Hahn, P.A., Tampa, for Appellants.
    Dinah Stein and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami; and Rissman, Barrett, Hurt, Donahue & McClain, P.A., Tampa, for Appellees David Olson, M.D., and Intercoastal Medical Group.
    No appearance for remaining Appellees.
   VILLANTI, Judge.

Sylvia and James Woodward appeal the final summary judgment entered in favor of David Olson, M.D., and Intercoastal Medical Group in this medical malpractice action. The trial court granted the motion based on its conclusion that the Wood-wards’ claims were barred by the medical malpractice statute of repose found in section 95.11(4)(b), Florida Statutes (2009). Because the statute of repose properly bars only some of the Woodwards’ claims, we affirm in part and reverse in part.

The facts in the record before this court show that Sylvia Woodward was a pack-a-day smoker with a family history of various cancers when she became a patient of Dr. Olson in 1989. On September 6, 2002, Mrs. Woodward fell from her roof, and she went to the emergency room for treatment. In the emergency room, a chest X-ray was taken as part of the standard work-up. According to the radiologist’s report, Mrs. Woodward’s chest X-ray showed an “area of increased density” in the right lung, and the radiologist recommended further follow-up for this issue. Dr. Olson received the radiologist’s report, but he did not mention the report to Mrs. Woodward or order the recommended follow-up testing during Mrs. Woodward’s visits on September 17, 2002, and October 25, 2002.

Mrs. Woodward saw Dr. Olson intermittently over the next three years. Then on August 1, 2005, Mrs. Woodward was again seen in the emergency room, this time due to abdominal complaints. A chest X-ray was taken as part of the regular emergency room work-up. The radiologist compared the 2005 X-ray to the 2002 X-ray and recommended that Mrs. Woodward have a follow-up CT scan of the chest, and specifically of the right lung. Dr. Olson did not mention the radiologist’s report or order the recommended scan when Mrs. Woodward saw him as follow-up to the emergency room visit on October 10, 2005.

Mrs. Woodward next visited Dr. Olson on January 15, 2008, when she had a “Welcome to Medicare” physical. Dr. Olson ordered a chest X-ray as part of this “welcome package.” The radiologist’s report of this X-ray identified infiltrate in Mrs. Woodward’s right lung and recommended “radiographic follow-up.” While Dr. Olson received the radiologist’s report, he nevertheless did not mention the report’s findings to Mrs. Woodward or order the recommended follow-up testing despite further visits by Mrs. Woodward in May, October, and December of 2008.

After Dr. Olson retired from medical practice, Mrs. Woodward saw a different physician at Intercoastal on July 6, 2009. This new physician immediately told Mrs. Woodward of the earlier findings concerning her right lung and immediately ordered follow-up testing. Mrs. Woodward was subsequently diagnosed with stage IV lung cancer, and she underwent surgery, radiation, and chemotherapy.

On June 30, 2010, the Woodwards served Dr. Olson and Intercoastal with a notice of intent to initiate a medical malpractice action, and the Woodwards subsequently filed a medical malpractice action against Dr. Olson, Intercoastal, and various other defendants involved in Mrs. Woodward’s care and treatment. In the Woodwards’ complaint, they alleged that Dr. Olson’s treatment of Mrs. Woodward fell below the standard of care when he failed to advise her of the need for followup care and failed to order the recommended follow-up tests. Specifically, the complaint alleged that Dr. Olson was negligent “[c]ommencing with the office visit of September 17, 2002, and on each office visit with Dr. Olson thereafter.”

In response to the Woodwards’ complaint, Dr. Olson and Intercoastal raised the affirmative defense of the statute of repose. That statute provides, in pertinent part:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than ⅛ years from the date of the incident or occurrence out of which the cause of action accrued ....

§ 95.11(4)(b) (emphasis added). Dr. Olson and Intercoastal argued that the four-year statute of repose began to run on September 17, 2002, when Dr. Olson failed to tell Mrs. Woodward about the findings in the X-ray report from the emergency room and that it continued to run from that date forward. They argued that the repose period did not “re-start” when the new X-rays were taken and the new reports were received by Dr. Olson in August 2005 and January 2008 because his failures relating to those reports were simply a continuation of his original allegedly negligent treatment in 2002. The trial court agreed with Dr. Olson and Intercoastal, and it granted summary judgment in favor of them on this basis. The Woodwards appeal this ruling, and, under the facts of this case, we agree with them that the trial court’s ruling was erroneous, but only in part.

Unlike a statute of limitations, which begins to run when the cause of action accrues, “a statute of repose, which is usually longer in length, runs from the date of a discrete act on the part of the defendant without regard to when the cause of action accrued.” Kush v. Lloyd, 616 So.2d 415, 418 (Fla.1992). Thus, in a medical malpractice case, it is the discrete incident of malpractice that triggers the running of the statute of repose. Id. at 419 (quoting Carr v. Broward Cnty., 505 So.2d 568, 574-75 (Fla. 4th DCA 1987)). Hence, resolution of this appeal hinges on whether Dr. Olson committed one or more discrete incidents of malpractice and when those incidents occurred.

Here, taking the evidence in the light most favorable to the Woodwards, the record shows that Dr. Olson committed one discrete incident of malpractice on September 17, 2002, when he failed to advise Mrs. Woodward of the “focal density” in her right lung identified on the September 6, 2002, X-ray and failed to order the follow-up testing recommended by the radiologist based on that X-ray. Dr. Olson then committed a second discrete incident of malpractice on October 10, 2005, when he failed to advise Mrs. Woodward of the findings from her August 1, 2005, chest X-ray and when he failed to order the follow-up testing recommended by the radiologist based on that X-ray. And he also committed a third discrete incident of malpractice in January 2008 when he failed to advise Mrs. Woodward of the “infiltrate” in her right lung identified on the January 15, 2008, chest X-ray and failed to order the radiographic follow-up recommended by the radiologist based on that X-ray. Because these constituted three discrete acts of malpractice by Dr. Olson, each act was subject to its own four-year statute of repose. Hence, the Wood-wards’ claims arising out of the 2002 act of malpractice were barred by the statute of repose as of October 25, 2006. Their claims arising out of the 2005 act of malpractice were likewise barred by the statute of repose as of October 10, 2009. Because the Woodwards did not serve their notice of intent to initiate a medical malpractice action until June 30, 2010, after the respective statutes of repose had expired, their claims arising out of these first two acts of malpractice are barred by the four-year statute of repose. Thus, the trial court properly granted summary judgment in favor of Dr. Olson and Intercoas-tal to the extent that the Woodwards sought damages arising out of the 2002 and 2005 discrete incidents of malpractice.

To avoid this result, the Wood-wards argue that the trial court should have applied the continuing tort doctrine to Dr. Olson’s actions which would result in the statute of repose not beginning to run until after Mrs. Woodward’s final visit with Dr. Olson in 2008. But we reject this argument for two reasons.

First and foremost, the continuing tort doctrine is inapplicable in this case because it applies to statutes of limitations, not statutes of repose. Under the continuing tort doctrine, the statute of limitations begins to run “from the date the tortious conduct ceases,” Halkey-Roberts Corp. v. Mackal, 641 So.2d 445, 447 (Fla. 2d DCA 1994), and the plaintiff may recover based on all of the tortious acts committed within the limitations period prior to the filing of the action, see Suarez v. City of Tampa, 987 So.2d 681, 685 (Fla. 2d DCA 2008). The parties do not dispute that no Florida court has ever applied the continuing tort doctrine to statutes of repose or to medical malpractice cases, see, e.g., Aristide v. Jackson Mem’l Hosp., 917 So.2d 258, 255 (Fla. 3d DCA 2005), and the Woodwards present no compelling reason for this court to make new law on this issue.

Second, even if the continuing tort doctrine could somehow be properly applied to statutes of repose in medical malpractice actions, it would not resuscitate the Woodwards’ claims arising out of the 2002 and 2005 acts of malpractice. This court has explained that “ ‘[w]hen a defendant’s damage-causing act is completed, the existence of continuing damages to the plaintiff, even progressively worsening damages, does not present successive causes of action accruing because of a continuing tort.’ ” Suarez, 987 So.2d at 686 (emphasis added) (quoting In re Med. Review Panel for Claim of Moses, 788 So.2d 1173, 1183 (La.2001)). Here, the relevant alleged damage-causing acts were Dr. Olson’s failures to advise Mrs. Woodward of the results of the 2002 and 2005 X-rays at her appointments relating to those X-rays. Even assuming that Mrs. Woodward had continuing and progressively worsening damages from these two negligent acts, that fact would not trigger the continuing torts doctrine because the damage-causing acts were already completed. Thus, even if applicable, the continuing torts doctrine does not save the Woodwards’ claims arising out of the 2002 and 2005 incidents of malpractice.

Alternatively, the Woodwards argue that the statute of repose should run from the date of Mrs. Woodward’s last treatment by Dr. Olson — not the date of his negligent acts. However, the cases they rely on for this position do not require the result they seek. For example, in Cates v. Graham, 427 So.2d 290, 291 (Fla. 3d DCA 1983), the appellate court noted that the doctor performed surgery on the plaintiff to remove glass from his foot on June 21, June 24, and July 4, 1975. The plaintiff discovered in February 1979 that some glass had been left in his foot. For purposes of determining when the statute of repose began to run, the supreme court noted that the plaintiffs “last treatment occurred on July 4, 1975.” Cates v. Graham, 451 So.2d 475, 476 (Fla.1984). Similarly, in University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991), the plaintiff had been given chemotherapy injections between July 1971 and January 1972. The supreme court stated that the statute of repose in that case expired “in January 1976 — four years after the incident of malpractice.” Id. at 1003.

The Woodwards use these two cases to argue that the statute of repose should begin to run from the date of Mrs. Woodward’s last visit with Dr. Olson in 2008, essentially equating her last visit with him with her last treatment. However, this reading expands Cates and Bogorff beyond their facts. In both of those cases, the plaintiffs were following a specific course of treatment for a specific condition, and the course of treatment had a definite starting and ending date. Logic would dictate that, as those cases held, the statute of repose would start at the conclusion of the specific course of treatment.

Here, however, Mrs. Woodward’s various visits with Dr. Olson were clearly not part of a specific course of treatment. To the extent that the 2002 X-ray was part of a specific course of treatment for the injuries Mrs. Woodward sustained in her fall from the roof, that course of treatment ended on October 25, 2002. Similarly, to the extent that the 2005 X-ray was part of a specific course of treatment for Mrs. Woodward’s abdominal pain, that course of treatment ended on October 10, 2005. Neither Cates nor Bogorjf stands for the proposition that a long-term patient may hold the statute of repose in perpetual abeyance by continuing to see the same physician over a number of years for a variety of medical needs. Hence, neither of the Woodwards’ arguments for delaying the start of the statute of repose is persuasive, and we conclude that the trial court properly granted summary judgment in favor of Dr. Olson and Intercoastal as applied to Dr. Olson’s discrete incidents of malpractice in 2002 and 2005.

As to Dr. Olson’s discrete incident of malpractice in 2008, however, we reach a different result. Dr. Olson’s discrete incident of malpractice relating to the January 15, 2008, X-ray occurred on or shortly after that date when he failed to advise Mrs. Woodward of the results of the X-ray and failed to order the recommended follow-up care. The Woodwards filed their notice of intent to sue in June 2010, well within the four-year repose period based on the January 2008 incident of malpractice. We reject Dr. Olson’s argument that his failures arising from the January 15, 2008, X-ray and radiologist’s report were a continuation of his original September 2002 negligence. Instead, as discussed above, Dr. Olson’s actions in January 2008 constituted a discrete incident of malpractice that triggered the start of a new repose period. Thus, to the extent that the trial court granted summary judgment as to the Woodwards’ claims arising from Dr. Olson’s alleged negligence in January 2008 based on the expiration of the statute of repose, the trial court erred, and we must therefore reverse the summary judgment as to those claims.

In sum, we affirm the summary judgment to the extent that it found that the Woodwards’ claims arising from the 2002 and 2005 discrete incidents of malpractice were barred by the statute of repose. However, we reverse the summary judgment to the extent that it found that the Woodwards’ claims arising from the 2008 discrete incident of malpractice were likewise barred, and we remand for further proceedings on those claims.

Affirmed in part, reversed in part, and remanded for further proceedings.

ALTENBERND and WALLACE, JJ., Concur.

      . The remaining appellees were not involved in the final summary judgment and have not appeared in this appeal. However, from what we can tell from the record in this case, they remain defendants in the trial court.

      . We recognize that there is disputed evidence concerning whether Dr. Olson told Mrs. Woodward of the recommendation for further testing and whether he offered to order further testing. However, this dispute is irrelevant to the issue raised in Dr. Olson and Intercoastal’s motion for summary judgment, which was solely whether the Woodwards' claims were barred by the statute of repose. Further, we note that we are construing the facts of this case in the light most favorable to the Woodwards, as we are required to do on an appeal from a final summary judgment. See, e.g., Pasco v. City of Oldsmar, 953 So.2d 766, 769 (Fla. 2d DCA 2007) ("On appeal from a summary judgment, all facts and inferences are viewed in the light most favorable to the nonmoving party.” (citing Valle v. J.E.M. Distribs. of Tampa Bay, Inc., 700 So.2d 416, 419 (Fla. 2d DCA 1997))). Thus, nothing in this opinion should be construed as a finding or belief by this court that Dr. Olson and/or Intercoastal did or did not act negligently or commit malpractice.

      . The record shows that Mrs. Woodward saw Dr. Olson in follow-up for her fall from the roof on September 17, 2002, and October 25, 2002. Taking the evidence in the light most favorable to the Woodwards requires us to use the later visit for this fall to start the statute of repose.


author: BLACK, Judge.

text:
    Terrance D. CARNES, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3716.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2013.
    Terrance D. Carnes, pro se.
   BLACK, Judge.

Terrance D. Carnes appeals the order summarily denying his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In denying Carnes’ four claims, the postconviction court rendered an order explaining how the record refuted each claim, but it did not attach the relevant portions of the record. See Fla. R.Crim. P. 3.850(d) (“In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order.”); Gatlin v. State, 24 So.3d 743, 745 (Fla. 2d DCA 2009). Accordingly, we reverse and remand with directions to the postconviction court to attach the portions of the record that refute Carnes’ claims.

Reversed and remanded with directions.

ALTENBERND and WALLACE, JJ., Concur.


text:
    Johnny Lee THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2506.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2013.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Cliett v. State, 951 So.2d 3 (Fla. 1st DCA 2007).

BENTON, C.J., WOLF, and SWANSON, JJ., concur.


author: BENTON, C.J.

text:
    James TYLER, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6143.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2013.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

On direct appeal, James Tyler, III, argues that his convictions both for the sale of cocaine and marijuana contrary to section 893.13(1), Florida Statutes (2010), and for possession of the same cocaine and marijuana contrary to section 893.13(6), Florida Statutes (2010), violated constitutional protections against double jeopardy. He also challenges the facial constitutionality of section 893.13. We affirm all four convictions.

Turning first to the second point appellant raises, we are guided by a recent decision of our supreme court that definitively construed the Florida Comprehensive Drug Abuse Prevention and Control Act, section 893.13, Florida Statutes (2011), and rejected the same constitutional challenge to the same provisions (albeit of the 2010 version of the statute) that the appellant makes here. See State v. Adkins, 96 So.3d 412, 416 (Fla.2012) (“The statute thus expressly eliminates knowledge of the illicit nature of the controlled substance as an element of controlled substance offenses and expressly creates an affirmative defense of lack of knowledge of the illicit nature of the substance. The statute does not eliminate the element of knowledge of the presence of the substance.”). See also Flagg v. State, 74 So.3d 138, 140 (Fla. 1st DCA 2011), review denied, 104 So.3d 1083 (Fla.2012). Our supreme court’s holding that “the Legislature’s decision to make the absence of knowledge of the illicit nature of the controlled substance an affirmative defense is constitutional,” Adkins, 96 So.3d at 423, resolves appellant’s facial challenge in the present case.

In the first point he raises, appellant contends that (even if each offense has no constitutional infirmity, standing alone) convictions and sentences for both sale and possession of the same cocaine and marijuana violate double jeopardy protections. State and federal double jeopardy clauses protect against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction and, in keeping with the ancient maxim, nemo bis eodem delicto punitur, multiple punishments for the same offense. The Fifth Amendment’s double jeopardy clause provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. See United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536 81 L.Ed.2d 425 (1984) (citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)); see also Art. I, § 9, Fla. Const.; Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009) (explaining that double jeopardy “prohibits subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense”). Our supreme court has said that “if prosecution is for the same conduct under both statutes, a conviction under more than one of the statutes is a violation of double jeopardy principles.” Gibbs v. State, 698 So.2d 1206, 1210 (Fla.1997).

But the double jeopardy clause does not preclude multiple convictions based on the same transaction or conduct where the Legislature has proscribed multiple crimes of each of which some specified conduct is but an element. See Hayes v. State, 803 So.2d 695, 699 (Fla.2001). “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See also § 775.021, Fla. Stat. (2010) (codifying the Blockburger test to require that, without regard to pleadings or proof, each separate offense contain an element that another offense does not, in order to constitute multiple offenses). “Legislative intent is the polestar that guides our analysis in double jeopardy issues[.]” State v. Anderson, 695 So.2d 309, 311 (Fla.1997).

In arguing that his convictions amount to double jeopardy violations, appellant relies principally on Melton v. State, 73 So.3d 296, 297 (Fla. 1st DCA 2011) (holding that “convictions and sentences for the sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver methamphetamine in violation of section 898.13, Florida Statutes, (Count 1) and [for] trafficking in methamphetamine in violation of section 893.135, Florida Statutes, (Count 2) violated [the] constitutional protection against double jeopardy”). Our supreme court also found a double jeopardy violation where convictions both for trafficking under section 893.135, Florida Statutes, and for possession of a controlled substance with intent to sell under section 893.13(1), Florida Statutes, arose from the same facts. See Johnson v. State, 712 So.2d 380, 381 (Fla.1998).

Early on our supreme court decided that convictions for sale and “simple possession” (possession of less than a trafficking amount without intent to sell, manufacture or deliver) of the same controlled substance did not transgress double jeopardy prohibitions. See State v. McCloud, 577 So.2d 939, 940-41 (Fla.1991) (accepting the state’s argument that “the crime of possession does not require sale as an element” and stating that “a sale can occur without possession” because “possession is not an essential element of sale”). The McCloud court grounded its decision on a straightforward Blockburger analysis. Focusing on the fact that the same statutory subsection that makes sale a criminal offense outlaws “possession with intent to sell,” § 893.13(l)(a), Fla. Stat., however, our supreme court later ruled in Paccione v. State, 698 So.2d 252, 254 (Fla.1997):

While possession with the intent to sell contains an element that possession does not, the converse is not true. Simple possession contains no element not found in possession with the intent to sell. Therefore, under section 775.021(4)(a), Florida Statutes (1993), we find that the legislature did not intend to punish the offense of possession with the intent to sell separately from and in addition to the offense of simple possession. ...
... In McCloud, we found that each offense contained an element that the other did not. We reasoned that “the crime of sale does not require possession as an element, and the crime of possession does not require sale as an element.” McCloud, 577 So.2d at 940. Therefore, pursuant . to section 775.021(4)(a), Florida Statutes (Supp. 1988), there was no double jeopardy violation. As we have previously stated, a double jeopardy violation occurred in this case because each offense required knowing possession, and the simple possession statute did not contain any element not contained in the possession-with-intent-to-sell statute.

Paccione thus proceeded on the premise that possession with intent to sell, on the one hand, and the actual sale, on the other, of the same illicit substance should be viewed, not as alternative ways in which section 893.13(l)(a) could be violated, but as two separate crimes, albeit proscribed by the same, undivided subsubsection of the statute. In State v. Oliver, 581 So.2d 1304, 1305 (Fla.1991), indeed, our supreme court explicitly held that “a trial court may properly convict and sentence for both” sale and possession with intent to sell the same cocaine.

Not dissimilarly, the supreme court has ruled that convictions for possession with intent to sell, and for trafficking in, the same cocaine violate the double jeopardy proscription, but only where the trafficking conviction turns on proof of possession of the trafficking amount. See Johnson, 712 So.2d at 381 (“[W]hen we compare the possession component of the trafficking statute to the companion crime of possession with intent to sell, we find that while the latter offense contains a statutory element not found in the former, i.e., intent to sell, the reverse is not true.”); see also State v. Williams, 731 So.2d 635, 637 (Fla.1998); Gibbs, 698 So.2d at 1209; Melton, 73 So.3d at 297; Williamson v. State, 859 So.2d 553, 554 (Fla. 1st DCA 2003); Ford v. State, 749 So.2d 570, 571 (Fla. 5th DCA 2000). In the seminal Johnson opinion, the court focused on a single branch of the trafficking statute, the so-called “possession component,” to the exclusion of other statutory language not invoked in the charging instrument. See Johnson, 712 So.2d at 381 (holding that “the court must focus on the particular component of the statute that is in issue”).

By limiting its analysis to the “possession component” of the trafficking statute (section 893.135), thereby holding in Johnson that any “alternative conduct” which could also prove trafficking under section 893.135 need not be considered in double jeopardy analysis, the supreme court seemed to take “the accusatory pleading” if not “the proof adduced at trial” into account. Whether the approach in Johnson, mirroring the approach in Paccione, can be said to comport with section 775.021(4)(a)’s requirement that statutory-offenses be considered “without regard to the accusatory pleading or the proof adduced at trial,” see generally State v. Baker, 456 So.2d 419, 420 (Fla.1984) (“In determining whether separate convictions may flow from a single event one looks at the statutory elements of the charged crimes, as opposed to the language of the charging document”), we need not tarry to ponder, given the supreme court’s clear direction that sale (as opposed to possession with intent to sell) and simple possession should be viewed as separate crimes.

In short, we are bound by the McCloud line of decisions involving the same statutory provisions at issue here. See Portee v. State, 447 So.2d 219, 220 (Fla.1984); Thomas v. State, 61 So.3d 1157, 1157 (Fla. 1st DCA 2011); St. Fabre v. State, 548 So.2d 797, 800 (Fla. 1st DCA 1989). Under this line of authority, where a defendant has been convicted of simple possession of a controlled substance and sale of the same substance, in violation of applicable subsections of section 893.13, Florida Statutes (2010), double jeopardy prohibitions have not been violated. Our supreme court has so held.

Affirmed.

DAVIS and ROBERTS, JJ., concur.

      . Section 775.021(4)(a), Florida Statutes (2010), provides: "... For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.”

      . Section 893.13(l)(a), Florida Statutes (2010), under which appellant was charged, provides:
      Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.

      . In other contexts, the courts have distinguished between different crimes, proscribed by different statutory provisions, and different methods of committing a "single statutory offense”:
      When a single statutory offense describes multiple alternative acts, each of which is prohibited, each separate prohibited act does not constitute a separate offense for double jeopardy purposes since there is but one statutory offense. Therefore a charge that an accused has violated a specific criminal statute results in jeopardy as to all alternative acts that could have been alleged and proved to have constituted a violation of the statute although the accusato-rial pleading described but one of many alternative factual events proscribed in the one statute. Thus if one is tried for aggravated battery by committing a battery with a deadly weapon, § 784.045(l)(b), Fla. Stat. (1979), and is convicted or acquitted, he cannot thereafter be tried as to the same factuál event for aggravated battery by committing a battery causing great bodily harm. § 784.045(l)(a), Fla. Stat. (1979). The alternative prohibited factual events set forth as subsections or alternatives in one criminal statute, constitute but one offense for which an accused cannot be twice placed in jeopardy because the legislature has chosen as a matter of form to make several distinguishable acts violative of but one statutory offense.

        Bartee v. State, 401 So.2d 890, 893 (Fla. 5th DCA 1981). See Maxwell v. State, 803 So.2d 815, 820 (Fla. 5th DCA 2001) ("[T]wo convictions for aggravated battery which are based on alternative means provided for in the statute for committing this offense were error. Here Maxwell was convicted of two counts of aggravated battery, one causing great bodily harm and the other for use of a deadly weapon. But the acts were perpetrated by Maxwell on the same victim at the same time. Only one conviction can stand.”).

      . Section 893.135(l)(b) 1., Florida Statutes (2010), provides:
      Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in s. 893.03(2)(a)4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony shall be known as "trafficking in cocaine,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . In the present case, appellant was charged by amended information as follows:
      WILLIAM P. CERVONE, STATE ATTORNEY for the Eighth Judicial Circuit, prosecuting for the State of Florida, under oath, alleges by information that JAMES TYLER, III, in Alachua County, Florida, March 10, 2011, did then and there unlawfully and for a valuable consideration sell and deliver to AN UNDERCOVER OFFICER a controlled substance, to-wit: CRACK COCAINE, contrary to Section 893.13(Z )(a)(Z), Florida Statutes. (L5, F2)
      COUNT II: And WILLIAM P. CERVONE, STATE ATTORNEY for the Eighth Judicial Circuit, prosecuting for the State of Florida, under oath, further alleges, by information that JAMES TYLER, III, in Alachua County, Florida, on or about March 10, 2011, did then and there unlawfully and knowingly for a valuable consideration sell and deliver to an undercover officer cannabis, contrary to Section 893.13(I)(a)(2) Florida Statu[t]es. (L3, F3)
      COUNT III: And WILLIAM P. CERVONE, STATE ATTORNEY for the Eighth Judicial Circuit, prosecuting for the State of Florida, under oath, further alleges, by information that JAMES TYLER, III, in Alachua County, Florida, on or about March 10, 2011, did then and there unlawfully have in HIS actual or constructive possession a controlled substance, to-wit: CRACK COCAINE, contrary to 893.13(6)(a), Florida Statutes. (L3, F3)
      COUNT IV: And WILLIAM P. CERVONE, STATE ATTORNEY for the Eighth Judicial Circuit, prosecuting for the State of Florida, under oath, further alleges, by information that JAMES TYLER, III, in Alachua County, Florida, on or about March 10, 2011, was unlawfully in actual or constructive possession of a controlled substance named or described in Section 893.03(Z )(c), Florida Statutes, to-wit: not more than 20 grams of cannabis, contrary to Section 893.13(6)(b), Florida Statutes. [Ml]


text:
    Steve BEAVERS, Appellant, v. CARPENTER CONTRACTORS OF AMERICA and Alternative Service Concepts, Appellees.
    No. 1D12-0324.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2013.
    Bradley G. Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, and Susan W. Fox of Fox & Loquasto, P.A., Orlando, for Appellant.

      Vanessa J. Johnson and Robert B. Bennett of Sponsler, Bennett, Jacobs & Adams, P.A., Tampa, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Steve Beavers argues the judge of compensation claims (JCC) erred in denying his request that pain management with Dr. Khan be continued or reauthorized. In ruling that Dr. Khan was properly deau-thorized by the employer/carrier under section 440.13(2)(d), Florida Statutes (2010), the JCC did not have the benefit of this court’s decision in Avery v. City of Coral Gables, 100 So.3d 749, 752 (Fla. 1st DCA 2012) (“A claimant who has reached MMI ... cannot be ⅛ recuperation,’ as a matter of law, where the treatment being provided is not curative.”). We therefore reverse the order on appeal and remand for further proceedings.

BENTON, C.J., DAVIS, and ROBERTS, JJ., concur.


text:
    KMS RESTAURANT CORP, a Florida Corporation, Petitioner, v. SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY P.A., and John (Jack) Scarola, Esq., Respondents.
    No. 4D12-3905.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Robert C. Stone of the Law Office of Robert C. Stone, P.A., Boca Raton, for petitioner.
    Richard Burton Bush and Audra Michelle Bryant of Bush & Augspurger, P.A., Tallahassee, for respondents.
   PER CURIAM.

KMS Restaurant Corporation petitions this court for a writ of certiorari seeking review of an order disqualifying its attorney. The circuit court disqualified KMS’s counsel solely because he is a material witness in the underlying case. The trial court’s order departs from the essential requirements of law because it is not limited to disqualifying counsel from representing KMS at trial. Graves v. Lapi, 834 So.2d 359 (Fla. 4th DCA 2003); Cerillo v. Highley, 797 So.2d 1288 (Fla. 4th DCA 2001). The fact that counsel will be a material witness does not preclude him from participating in proceedings before and after trial.

Accordingly we grant this petition and quash the trial court’s order.

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


text:
    Salvatore ALTIMARI, Appellant, v. STATE of Florida and City of West Palm Beach, Appellees.
    No. 4D11-4476.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.
    Certification Denied Jan. 10, 2012.

      William S. Abramson, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John J. Bajger, Assistant Attorney General, West Palm Beach, for appellee State of Florida.
    Claudia M. McKenna, City Attorney, and Lisa M. Fedynyshyn-Conforti, Assistant City Attorney, West Palm Beach, for appellee City of West Palm Beach.
   PER CURIAM.

Affirmed. Robinson v. Town of Palm Beach Shores, 388 So.2d 314 (Fla. 4th DCA 1980).

MAY, C.J., STEVENSON and CIKLIN, JJ., concur.


text:
    Blanchard ST. VAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-654.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.

      Blanchard St. Val, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant was tried by a jury and convicted of attempted first-degree murder with a firearm (count one); attempted second-degree murder with a firearm (count two); and shooting into an occupied vehicle (counts three and four). On February 3, 2006, he was sentenced to life imprisonment in count one and fifteen years each in counts two, three, and four, running concurrently. The judgment and sentences were affirmed on direct appeal.

On September 27, 2010, Defendant filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing that his life sentence in count one violated his constitutional rights in light of Graham v. Florida, - U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), because he was under the age of eighteen at the time of the offense. The trial court denied the motion on grounds that it was untimely filed under rule 3.850. Defendant’s motion for rehearing was also denied.

In his initial brief, Defendant reasserted the right to relief under Graham. He claimed that Graham, which was decided on May 17, 2010, created a new fundamental constitutional right that was not established within the period for seeking postconviction relief, which excepts the claim from the two-year deadline under the rule. See Fla. R.Crim. P. 3.850(b)(2). We agree with Defendant’s position.

In Graham, the Court held that “[t]he constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 130 S.Ct. at 2034. The record in this case reveals that the conviction for attempted first-degree murder stems from events that occurred on June 7, 2003. Defendant was seventeen years old at that time. The Florida legislature has not enacted a parole system that would satisfy Graham by allowing a juvenile defendant sentenced to life in prison a chance to be released. See Treacy v. Lamberti, 80 So.3d 1053 (Fla. 4th DCA 2012). Therefore, Defendant’s life sentence for a non-homicide offense, committed while he was a minor, constitutes a constitutional violation pursuant to Graham. See Cunningham v. State, 74 So.3d 568 (Fla. 4th DCA 2011); Manuel v. State, 48 So.3d 94 (Fla. 2d DCA 2010).

In Kleppinger v. State, 81 So.3d 547 (Fla. 2d DCA 2012), the Second District found that Graham should be applied retroactively. See also Geter v. State, - So.3d - (Fla. 3d DCA 2012); In re Sparks, 657 F.3d 258, 260 (5th Cir.2011) (“Graham has been made retroactive to cases on collateral review by the Supreme Court.”). As a result, the trial court could have considered Defendant’s rule 3.850 motion under section (b)(2), which provides an exception to the two-year filing deadline when a claim alleges that the fundamental constitutional right asserted was not established within the period provided, has been held to apply retroactively, and is made within two years of the date of the mandate of the decision announcing retroactivity. Alternatively, the trial court could have considered the claim under Florida Rule of Criminal Procedure 3.800(a), which entitles a defendant to seek relief from an illegal sentence and can be filed at any time. In its response to this Court, the State agrees that Defendant’s motion was improperly deemed to be untimely and that he is entitled to resentencing.

Based on these reasons, we reverse the trial court’s ruling on Defendant’s postcon-vietion motion and vacate the life sentence imposed in count one for attempted first-degree murder with a firearm, pursuant to Graham. We remand for resentencing in that count only, with a new sentence that comports with Graham.

Reversed and remanded for resentenc-ing in accordance with this opinion.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


author: VAN NORTWICK, J. ROWE, J.,

text:
    Richard JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5041.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.

      Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Richard Jenkins challenges his conviction and sentence for burglary with an assault. Appellant raises several issues on appeal, only one of which merits discussion. Because the trial court erred in admitting certain hearsay testimony under section 90.801(2)(c), Florida Statutes (2010), and the admission of this testimony was not harmless beyond a reasonable doubt, we reverse and remand for new trial.

At trial, the victim testified that a man came to her door asking to use the phone. She testified that she agreed to let him use the phone, but the man pulled out a gun, forced her inside her house, and demanded money. After the man had left, she called her friend Michael West and told him about what transpired. Over defense counsel’s objections, the victim testified that Mr. West told her that he had “just seen ‘Richard’ riding his bike up in the streets.” The trial court found that Mr. West’s statement to the victim qualified as a statement of identification pursuant to section 90.801(2)(c), Florida Statutes.

The trial court’s ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006). A court’s discretion, however, is limited by the evidence code and applicable case law; and a court’s erroneous interpretation of these authorities is reviewed de novo. Id.

Section 90.801(2)(c) provides:

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the. statement and the statement is:
(c) One of identification of a person made after perceiving the person.

§ 90.801(2)(c), Fla. Stat. (2010). The hearsay exception under this provision of the evidence code applies “if the declarant was an eyewitness or a victim who identified the alleged perpetrator soon after the crime or soon after coming into contact with him or her.” Davis v. State, 52 So.3d 52, 54 (Fla. 1st DCA 2010). As the Fourth District explained in Robinson v. State, 74 So.3d 570, 571 (Fla. 4th DCA 2011) (quoting Stanford v. State, 576 So.2d 737, 739-40 (Fla. 4th DCA 1991)), the “the typical situation contemplated by the code and the case law is one where the victim sees the assailant shortly after the criminal episode and says, ‘that’s the man.’ Hence, the phrase ‘identification of a person made after perceiving him’ refers to the witness seeing a person after the criminal episode and identifying that person as the offender.” Here, there was no evidence that Mr. West was present during the commission of the crime or soon thereafter. Thus, he would not qualify as a victim of or a witness to the crime. Moreover, this statement was not one of identification because Mr. West never stated that Appellant was the person that committed the crime. Hendrieth v. State, 483 So.2d 768, 769 (Fla. 1st DCA 1986) (holding that a person’s statement that he saw “two black men walking around the homes along his street” was not an on-the-scene identification). Therefore, the trial court erred in allowing the admission of this hearsay testimony.

In addition, it cannot be said that the admission of this testimony was harmless error. “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). “When applying the harmless error test, appellate courts are required not only to examine the permissible evidence on which the jury relied, but to even more closely examine ‘the impermissible evidence which might have possibly influenced the jury verdict.’” Miles v. State, 60 So.3d 447, 452 (Fla. 1st DCA 2011) (quoting DiGuilio, 491 So.2d at 1135). Based on our review of the record, here, the evidence against Appellant was entirely circumstantial and required the jury to make several inferences to conclude that Appellant was guilty of the charged crime. Due to the nature of the evidence in this case, the State failed to establish that there was no reasonable possibility that the testimony erroneously admitted into evidence did not contribute to the jury’s verdict. Accordingly, we REVERSE Appellant’s conviction and sentence and REMAND for a new trial.

DAVIS, J., concurs, and ROWE, J., Dissents with written opinion.

ROWE, J.,

dissenting.

The majority concludes that the hearsay testimony by the victim, Grace Andreakos, was improperly admitted as a statement of identification and that the admission of this evidence was harmful error. Given other evidence in the record identifying Appellant as the perpetrator of the crime, there is no reasonable possibility that the improperly admitted testimony contributed to the jury’s decision that Appellant committed burglary with an assault. Because any error in admitting Andreakos’ testimony was harmless, I dissent.

Andreakos testified that immediately after the burglar left her apartment, she telephoned her neighbor Michael West, who told her he had “just seen ‘Richard’ riding his bike up in the streets.” In addition to this testimony, the jury was presented with ample evidence of Appellant’s identity through statements made to the police by an eyewitness to and the victim of the crime. Deputy Thomas Daniels, Jr., one of the police officers who responded to the crime scene, testified that Tyrone Akin, an eyewitness to the crime, told him that the person involved in the crime was “Richard Jenkins.” Deputy Daniels testified that Akin was unwilling to cooperate with the investigation or to put anything in a sworn statement. In addition, Officer Nathan Edmonds testified that while he was at Andreakos’ home, he overheard a black male tell Officer Daniels that the burglar was “his cousin, Richard Jenkins ... but he wasn’t going to write nothing.” Moreover, Deputy Daniels testified that Andreakos was shown a photo lineup and she kept tapping on Appellant’s picture saying “this looks like him, this looks like him, but it’s not quite right.”

Appellant did not object to any of the above testimony from the police officers. This properly admitted testimony provided evidence of Appellant’s identity from the victim and an eyewitness to the crime. The improperly admitted testimony, on the other hand, concerned the victim’s neighbor’s observation of a person named “Richard” riding a bicycle on the street near the apartment complex. West was not an eyewitness to the crime, and at trial, West testified that when Andreakos called him the morning of the burglary he told her that he had seen Richard around 9:00 p.m., approximately 8 hours before the burglary occurred. In light of the other evidence of Appellant’s identity in the record, I conclude that the trial court’s admission of Andreakos’ hearsay testimony was harmless error. Appellant’s judgment and sentence should be affirmed.


text:
    Vernon and Glenda SHAW, Appellants, v. EPI TOWNSEND, LLC and Epoch Properties, Inc., Appellees.
    No. 1D13-0320.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    Vernon and Glenda Shaw, pro se, Appellants.
    Leslie W. Langbein of Langbein & Langbein, Miami Lakes, for Appellees.
   PER CURIAM.

Upon consideration of appellants’ response to the Court’s order of January 24, 2013, the Court has determined that the appeal is untimely. The order on appeal was rendered on December 19, 2012. In order to timely invoke the Court’s jurisdiction, the notice of appeal should have been filed no later than January 18, 2013. Fla. R.App. P. 9.110(c). Because the notice of appeal was not timely filed, the Court lacks jurisdiction and the appeal is dismissed.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    Robert Michael ARDIS, Petitioner, v. Sarah Harper ARDIS, Respondent.
    No. 1D12-4545.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    Robert Michael Ardis, pro se, Petitioner.
    Gregory D. Smith of Gregory D. Smith, P.A., Pensacola, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits. All pending motions are denied.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    Troy Wallace CONLON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2812.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    James Owens, Public Defender; Chris J. Ross and Alice F. Harris, Assistant Public Defenders, Milton, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about May 1, 2012, in Santa Rosa County Circuit Court case number 2008-470-CFA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the appeal authorized by this opinion.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    Deborah G. MAYS, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Bear Creek Nursing Center, LLC, Appellees.
    No. 1D12-1306.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    A. Dean Johnson of the Johnson Law Offices, Tallahassee, for Appellant.
    Norman A. Blessing, General Counsel, and Louis A. Gutierrez, Senior Attorney, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Deborah G. Mays appeals an order of the Reemployment Assistance Appeals Commission affirming a referee’s decision holding her disqualified from the receipt of unemployment compensation benefits. The Commission has moved to relinquish jurisdiction, commendably acknowledging that although the referee relied upon certain hearsay evidence in making her findings of fact, her order does not reflect that she undertook the analysis required in order for hearsay evidence alone to support a finding of fact in an unemployment compensation case. See § 443.151(4)(b)5.c., Fla. Stat. (2012). We elect to treat the motion as a concession of error, reverse the order on appeal in accordance therewith, and remand to the Commission for further proceedings.

REVERSED and REMANDED.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    Joe Lewis JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1009.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Joe Lewis Jenkins, challenges his convictions for second-degree murder and attempted second-degree murder. Appellant’s conviction for second-degree murder is reversed because the trial court only instructed the jury on manslaughter by culpable negligence. Bradshaw v. State, 61 So.3d 1266, 1266 (Fla. 3d DCA 2011) (holding that instructing the jury on the lesser included offense of manslaughter by instructing only as to the culpable negligence prong and omitting entirely the manslaughter by act aspect of the crime was fundamental error); Bolin v. State, 8 So.3d 428, 430 (Fla. 2d DCA 2009) (same). Appellant’s conviction for attempted second-degree murder is also reversed because the trial court used a jury instruction for attempted manslaughter by act that required the jury to find that Appellant had the intent to kill the victim. Lamb v. State, 18 So.3d 734, 734 (Fla. 1st DCA 2009); but see Williams v. State, 40 So.3d 72, 75 (Fla. 4th DCA 2010), rev. pending, 64 So.3d 1262 (Fla.2011).

REVERSED and REMANDED.

DAVIS, RAY, and SWANSON, JJ., concur.


author: PER CURIAM. THOMAS, J.,

text:
    Derek L. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0054.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    Nancy A. Daniels, Public Defender, and Devin D. Collier, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Bi’ittany Ann Rhodaback and Giselle Denise Lylen, Assistant Attorneys General, for Appellee.
   PER CURIAM.

Appellant raises a number of challenges to his multiple convictions and sentences related to a traffic stop and possession of illegal drugs. We find only one has merit: the trial court erred in denying appellant’s motion for judgment of acquittal on the charge of possession of cocaine with intent to sell where there was insufficient evidence of the requisite intent. See C.L.L. v. State, 566 So.2d 878 (Fla. 3d DCA 1990) (finding no intent to sell because there was no testimony that quantity and packaging were indications of an intent to sell, as opposed to holding contraband for personal use). We, therefore, reverse the conviction for possession of cocaine with intent to sell and remand with directions to enter a judgment for simple possession of cocaine and resentencing as to that charge. In all other respects, the judgment and sentence are affirmed.

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

WOLF and MARSTILLER, JJ., concur; THOMAS, J., dissents with opinion.

THOMAS, J.,

dissenting.

I respectfully dissent, because the State submitted competent evidence from which a rational trier of fact could reject Appellant’s self-serving testimony that he did not possess the cocaine with intent to sell. See Twilegar v. State, 42 So.3d 177, 188-89 (Fla.2010) (noting that in circumstantial-evidence case, state produced competent evidence to support conclusion that rational trier of fact could find guilt beyond reasonable doubt and reject hypothesis of innocence). Although I acknowledge that the decision cited by the majority supports its conclusion, I disagree with that decision, which is not binding on this court. Rather, I rely on the decisions recognizing that intent must almost always be based on circumstantial evidence, and thus, should rarely be the basis for a court order granting a motion for judgment of acquittal. State v. Waters, 436 So.2d 66, 71 (Fla.1983); Green v. State, 90 So.3d 835, 837 (Fla. 2d DCA 2012). In fact, intent usually is inferred based on circumstantial evidence. See Hardwick v. State, 630 So.2d 1212 (Fla. 5th DCA 1994). Furthermore, no jury is required to believe Appellant’s self-serving testimony, and neither is this court.

The decision as to whether Appellant’s claim that he possessed the drug for personal use is for the jury to determine, as it alone has the authority to decide whether the strength of the circumstantial evidence outweighs Appellant’s hypothesis of innocence, which in this case is quite unreasonable.

Here, we must view the evidence in a light most favorable to the State, as required by Orme v. State:

In sum, the sole function of a trial court on motion for directed verdict in a circumstantial-evidence case is to determine whether there is prima facie inconsistency between (a) the evidence, viewed in the light most favorable to the State and (b) the defense theory or theories. If there is such inconsistency, then the question is for the trier of fact to resolve.

677 So.2d 258, 262 (Fla.1996) (emphasis added). There is just such an inconsistency in this case. The evidence here, including the amount of drugs, the amount of cash, and the lack of paraphernalia, contradict Appellant’s hypothesis of innocence, which was not required to be accepted by the jury.

In addition, although not dispositive here, I fully concur with the opinion in Knight v. State, 107 So.3d 449 (Fla. 5th DCA 2013), that the “special standard” of appellate review in circumstantial-evidence cases is not supported by law or logic. The United States Supreme Court held more than thirty years ago, in Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that “[ojnly under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner’s challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150. We decline to adopt it today.” I agree with the Fifth District that the Florida Supreme Court should reconsider case law providing a different standard of review in one class of cases based on the type of evidence submitted to the jury. Florida courts should apply the “rational trier of fact” appellate standard of review utilized in direct evidence cases to all legal sufficiency arguments. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). Under that standard, Appellant’s argument on appeal would properly be rejected, as competent, substantial evidence supports the jury’s verdict.

Even under the “special standard” applicable to circumstantial-evidence cases, however, I would affirm. Pagan v. State, 830 So.2d 792 (Fla.2002). Thus, I respectfully dissent.


text:
    CCB, L.L.C., Charles B. Barniv, Cynthia Barniv, and Bruce Witkind, Appellants, v. BANKTRUST, an Alabama Banking Corporation, Dana Matthews, Lori Ellen Ward, Matthews & Hawking, P.A., and Destin Land & Title, Inc., Appellees.
    No. 1D12-6181.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.

      John N.C. Ledbetter of Ledbetter & Associates, P.L., Destín, for Appellants.
    C. Jeffrey Mclnnis of Anchors Smith Grimsley, PLC, Fort Walton Beach; Mary K. Simpson and Jennifer Sullivan Davis of Huey, Guilday, Tucker, et al., Tallahassee; Pamela Jo Bondi, Attorney General, Tallahassee; Randall G. Rogers and Scott Wei-ner of Cole, Scott & Kissane, P.A., Pensacola; Jason B. Onacki of Bozeman Jenkins Matthews, Pensacola; and George M. Walker and Paul T. Beckmann of Hand Arendall LLC, Mobile, AL, for Appellees.
   PER CURIAM.

DISMISSED. See, e.g., Monticello Ins. Co. v. Thompson, 743 So.2d 1215 (Fla. 1st DCA 1999).

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