author: COHEN, J. WALLIS, J.,

text:
    Peter A. ELDRIDGE, Appellant/Cross-Appellee, v. Patricia A. ELDRIDGE, Appellee/Cross-Appellant.
    Nos. 5D12-3730, 5D13-118.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.
    Rehearing En Banc Denied Oct. 3, 2014

      John N. Bogdanoff, Earle W. Peterson, Jr., Shannon McLin Carlyle, B.C.S., and Christopher V. Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellant/Cross-Appellee.
    John A. Baldwin of Baldwin & Morrison, P.A., Fern Park, for Appellee/Cross-Ap-pellant.
   COHEN, J.

Former Husband, Peter Eldridge, appeals a final order that granted, in part, Former Wife, Patricia Eldridge’s various post-judgment motions (“the 2012 Order”). In the 2012 Order, the trial court was required to interpret a previously entered final judgment that dissolved the parties’ marriage (“the Original Judgment”). We reverse, holding that the trial court erred in (1) reclassifying temporary alimony payments as corporate distributions; (2) awarding Former Wife one-half of the shareholder distributions from the marital business, Apex Pest Control, Inc. (“Apex”); and (3) awarding Former Wife attorney’s and expert witness fees.

The parties, who were married for twenty-five years, dissolved their marriage in 2006. During the marriage, they were equal shareholders in Apex, a closely-held subchapter S corporation. It appears that, immediately before trial on their dissolution of marriage, they reached a settlement agreement and read the terms of that settlement into the record. Then, assisted by the trial court, the parties discussed certain other issues. The court orally ruled on various points in contention and entered the Original Judgment.

The Original Judgment generally reflected the parties’ agreement. Former Husband was to purchase Former Wife’s fifty percent interest in the capital stock of Apex at a set amount. Various parcels of marital property, including the marital home, were to be sold, with Former Wife receiving all of the proceeds. Former Husband’s fifty percent interest in those properties would be set off against the purchase price for Former Wife’s Apex stock. In addition, the court added a paragraph to the Original Judgment, deferring delivery of the stock certificates until the marital home sold. This paragraph was not addressed by the parties’ stipulation, and the record does not reflect that it was requested by either party.

The Original Judgment anticipated that Former Wife would earn a net income of $10,575 per month in investments once she received the monies from the sale of the marital properties. Until such time, she was temporarily awarded $2,500 in alimony per week. Based on the parties’ “lavish” lifestyle during the marriage, the trial court found that Former Wife had an additional need for permanent monthly alimony of $4,400. The payment of that amount was to commence one week after the sale of the marital home. In the meantime, Former Husband was to pay Former Wife $1,500 per month in addition to the $2,500 per week. Additionally, in its oral pronouncement, the court ruled: “Until the sale of the marital home [Former Husband] and [Former Wife] will each be fifty percent owners of Apex; until the sale of the marital home [Former Wife] will still receive Twenty-Five Hundred Dollars [sic] week.” The interpretation of this statement is at the heart of this appeal.

Unfortunately, the timing of the parties’ divorce coincided with the recent recession and housing market crash. Although the parties and the court anticipated a quick sale of the marital home, it became a three-year ordeal. Former Wife received Former Husband’s share of the proceeds from the sale of the properties, but there was an approximately one-million-dollar shortfall, which is currently being paid at the rate of roughly $14,000 per month.

Just before the marital home sold in 2009, Former Wife, for the first time, claimed that she was entitled not just to the monies as set forth above, but also to one-half of all distributions made by Apex in the preceding three years. Despite the fact that the Original Judgment clearly labeled various monetary awards as alimony, Former Wife took the position that they were, instead, corporate distributions. In support of her argument, Former Wife noted that Former Husband had been utilizing accounting practices that made it appear that her income from Apex was significantly more than she was actually receiving in distributions. These practices exposed Former Wife to a large tax liability. Nevertheless, the language deeming the payments alimony was agreed upon by the parties. We find the trial court erred to the extent it reclassified the temporary alimony payments as corporate distributions. See McCann v. Walker, 852 So.2d 366, 367 (Fla. 5th DCA 2003) (holding that unambiguous language in a final judgment must be given its literal meaning).

Likewise, the trial court erred in granting Former Wife’s motion to compel equal distributions from Apex from the time of entry of the Original Judgment until the sale of the marital home. This award totaled $923,739.99, plus interest. This issue involves the construction of terms in the Original Judgment, which we review de novo. See Shinitzky v. Shinitzky, 82 So.3d 1010 (Fla. 4th DCA 2011); Muir v. Muir, 925 So.2d 356 (Fla. 5th DCA 2006).

It is well-settled that shareholders of subchapter S corporations may agree to unequal payment of dividends or distributions, which is precisely what the parties did here. See Little v. Caswell-Doyle-Jones Corp., 305 So.2d 842 (Fla. 1st DCA 1975). An exchange between the parties’ attorneys, which occurred on the record, clearly reflected the parties’ agreement that Former Husband would receive Apex as his separate property, and this was part and parcel of the overall equitable distribution scheme. Specifically, Former Husband’s counsel stated: “If we value [Apex] at five million dollars and we put it all on [Former Husband’s] side of the ledger for distribution purposes, that leaves [Former Husband] indebted to [Former Wife] in the amount of two million five hundred thousand dollars.” Former Wife’s counsel expressed no disagreement with that disposition.

Former Wife relies on Zold v. Zold, 880 So.2d 779 (Fla. 5th DCA 2004), affirmed in part, vacated in part, 911 So.2d 1222 (Fla.2005), to support the order requiring payment of corporate distributions. In Zold, the court was required to determine the husband’s available monthly income from a subchapter S corporation for purposes of paying support. The court noted that “[c]ourt ordered obligations in marital litigation should not place an ex-marital partner in the position of having to breach a corporate fiduciary obligation .Id. at 781. Zold, however, is distinguishable because it did not involve a marital settlement agreement, equitable distribution, or an agreement between the shareholders. Additionally, the other shareholder in Zold — to whom the husband owed a fiduciary duty — was a third party rather than the other spouse. The trial court’s reliance on Zold was therefore misplaced.

Unlike in Zold, the parties’ partial settlement agreement and the Original Judgment established that Former Wife would no longer receive corporate distributions but, instead, Former Husband would buy out her interest. The trial court’s addition of a term stating that Former Wife shall retain “a secured interest” was not intended to alter the agreed-upon ownership structure of Apex; rather, it was a method of securing payment based on the agreed-upon terms. Former Wife understood that a firm price had been set for the purchase of her share of the corporation.

Moreover, at no time during the three-year period between the entry of the Original Judgment and the sale of the marital home did Former Wife attempt to participate in the running of the corporation. The dissent’s dismissal of this fact notwithstanding, in addition, at no time during that three-year period did she ever demand additional corporate distributions. These facts weigh heavily in favor of finding that the agreement did not contemplate Former Wife maintaining an ownership interest in Apex during that three-year period. Accordingly, we reverse the 2012 Order to the extent it required payment of corporate distributions.

Lastly, we find that the trial court erred in awarding Former Wife attorney’s and expert witness fees because Former Wife had ample means to obtain counsel and experts. See Morris v. Morris, 743 So.2d 81, 82 (Fla. 5th DCA 1999) (“[A]n award of attorney’s fees ... is improper where both parties have ample means to obtain competent counsel, and an equitable distribution of the marital assets has already been affected outside the award of fees.”). She possessed a net worth of almost three million dollars and received more than $130,000 in annual income. Furthermore, Former Wife never argued that she had a need for an award of attorney’s fees, nor did she present evidence of such a need. Rather, she focused her argument on the disparity between the parties’ assets, which is not the correct standard. See Arena v. Arena, 103 So.3d 1044,1046 (Fla. 2d DCA 2013) (“[T]he trial court cannot award fees based solely on disparity of income.”). Therefore, we reverse the portion of the 2012 Order that granted Former Wife’s post-judgment attorney’s fees, temporary appellate attorney’s fees, and expert witness fees.

REVERSED.

BERGER, J., concurs.

WALLIS, J., concurs in part, dissents in part, with opinion.

WALLIS, J.,

concurs in part, dissents in part, with opinion.

I respectfully dissent only from the portion of the majority opinion that reverses Former Wife’s entitlement to corporate distributions from Apex during the period between the entry of the Original Judgment and the sale of the marital home. The majority concludes based upon language in the settlement agreement and the Original Judgment that Former Wife agreed to waive any entitlement to corporate distributions; however, no such language exists. During the marriage, the parties were equal shareholders in Apex. The trial court’s oral ruling provided that “[ujntil the sale of the marital home [Former Husband] and [Former Wife] will each be fifty percent owners of Apex.” Former Wife’s one-half ownership of Apex was also announced during the settlement agreement, with no objection from either party. Thus, I think Former Wife, as a shareholder of Apex, was entitled to fifty percent of the corporation’s distributions between the entry of the Original Judgment and the sale of the marital home.

I find no ambiguity in the language of the Original Judgment concerning the ownership and eventual transfer of Former Wife’s Apex stock. Accordingly, I find no need to examine parol evidence of the parties’ anticipated quick sale of the marital home or of an implied agreement that Former Wife would no longer receive corporate distributions. I disagree with the majority’s decision to distinguish this case from Zold v. Zold, 880 So.2d 779 (Fla. 5th DCA 2004), affirmed in part, vacated in part, 911 So.2d 1222 (Fla.2005). The majority accurately characterizes the factual circumstances of Zold and notes the differing situation in the instant case, but unpersuasively demonstrates a need to limit the holding in our previous opinion to the determination of corporate income attributable to a stockholder. Zold ⅛ direct effect on the present case is clear that “[o]nce the distributions are found to be possible, the distributions must be pro-rata in accordance with the percentage ownership of the capital stock of the corporation.” Id. at 781.

The majority cites to Little v. Caswell-Doyle-Jones Corporation, 805 So.2d 842, 844 (Fla. 1st DCA 1975), as support for Former Wife receiving an unequal distribution of the corporate profits. The Little decision is distinguishable from our case. In Little, the stockholders’ agreement contained a “clear and concise” provision for unequal distributions; however, no such provision exists in our case. Additionally, the record does not show that the parties agreed — explicitly or implicitly — to divest Former Wife of her right to equal corporate distributions from Apex. Absent such an agreement, Former Wife was entitled to pro-rata distributions until the timely transfer of her ownership in Apex.

The “accounting practices” referred to by the majority further substantiate the parties’ expectation that Former Wife was entitled to corporate distributions from Apex. Apex’s tax documents attributed fifty percent of the yearly distributions to Former Wife for taxation purposes. Conspicuously, Apex’s balance sheets reflected markedly unequal payments to the parties, categorizing the payments to Former Wife as “distributions” until the end of 2008. Suspicion concerning Former Husband’s accounting practices is further heightened by Apex’s company accountant’s testimony that Former Husband attempted to retroactively “reclassify” payments from Apex as “loans,” without any documents to substantiate the terms of said loans.

Finally, the fact that Former Wife did not participate in the management of Apex during the period between the Original Judgment and the sale of the marital home has no impact on her rights to pro-rata corporate distributions. Previous case law from our court is clear that directors of closely held corporations have a fiduciary duty to not use their control of the corporation to their own advantage against other stockholders. Tillis v. United Parts, Inc., 395 So.2d 618, 619 (Fla. 5th DCA 1981). Here, the trial court made specific findings that “[b]oth parties ha[d] substantially contributed to the marriage,” noting that Former Wife’s full-time employment during the early years of the marriage enabled Former Husband to build Apex into a successful business. Neither party challenged the fact that Former Wife’s efforts helped to make Apex a company valued at $5,000,000 at the time of the Original Judgment. To expect Former Wife to continue to work alongside her then ex-husband in a capacity different from her marital contribution, following a contentious divorce, is unrealistic.

For the previously stated reasons, I would affirm the lower court’s ruling that Former Wife was entitled to one-half of all corporate distributions made by Apex between entry of the Original Judgment and the sale of the marital home.

      . The paragraph read: "Upon the sale of the marital home, the Wife shall transfer all of her shares in Apex to the Husband and retain a secured, interest in the stock until the balance of what the Husband owes the Wife in the equitable distribution is paid in full.” (Emphasis added).

      . The after-tax $2,500 weekly award closely equates to the $10,575 monthly award.

      . Former Husband agreed to pay this tax liability.

      . After interest, the award totaled $1,215,862.03, with $300,000 payable within ninety days, and the remainder paid at $20,000 per month.

      . Some evidence alluded to the parties' expectation that the marital home would sell quickly. The parties did not, however, create any deadline for the sale of the marital home or for the periodic alimony payable until the sale.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Matthew PIRIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-2.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.
    Rehearing Denied Oct. 6, 2014.
    Matthew Pirie, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Matthew Pirie appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm as to all claims except Price’s third claim, which concerns an alleged double jeopardy violation. We remand this claim to the trial court for reconsideration in light of our opinion in Pinder v. State, 128 So.3d 141 (Fla. 5th DCA 2013), which was issued after the trial court’s order.

AFFIRMED in part; REVERSED in part; and REMANDED.

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


text:
    R.L. and J.M., as Former Foster, etc., Appellants, v. W.G., Prospective Adoptive, etc., et. al., Appellees.
    No. 5D14-990.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.
    Rehearing En Banc Denied Oct. 2, 2014.

      George E. Carr, of The Law Offices of George E. Carr, P.A., Orlando, for Appellants.
    Krista M. Bartholomew, of The KMB Law Firm, P.A., Orlando, for Appellee.
    Kate York, of Legal Aid Society of the O.C.B.A., Inc., Orlando, for Guardian Ad Litem.
    Rosemarie Farrell, of Department of Children and Families, Orlando, for Department of Children and Families.
   PER CURIAM.

R.L. and J.M. (the “former foster parents”) appeal an order denying their motion to intervene in proceedings regarding C.M., a minor child. We affirm.

After the Department of Children and Families (“DCF”) petitioned to terminate the mother’s parental rights, she elected to allow her cousin, W.G. (“the prospective mother”) to seek to adopt C.M. The trial court found the prospective mother qualified to adopt, and ordered C.M.’s placement changed from the former foster parents to her. The trial court also found that the child’s placement with the prospective mother was the least restrictive and most appropriate family-like placement available consistent with the best interests and needs of the child. Subsequently, the former foster parents moved to intervene and to set aside the placement change. They asserted their desire to adopt C.M. and her two half-siblings. The trial court denied the former foster parents’ motion to intervene, and this appeal followed.

C.M.’s mother, whose parental rights were still intact, consented to C.M.’s placement with an adoption entity. That consent was “valid, binding, and enforceable ....” § 6S.082(6)(a), Fla. Stat. (2014). When the trial court found, as it did here, that the prospective mother was qualified to adopt and that C.M.’s placement with her was in the child’s best interest, the court was required to “immediately order the transfer of custody” of the child to the prospective mother. § 63.082(6)(d), Fla. Stat. (2014). The mother’s choice of placement with a prospective parent when her parental rights were still intact was an exclusively parental decision. The decision was subject only to the trial court determining that the prospective parent was properly qualified and that the adoption was in C.M.’s best interests. § 63.082(6)(d), Fla. Stat. (2014); In re S.N.W., 912 So.2d 368, 373 n. 4 (Fla. 2d DCA 2005) (noting § 63.082(6)(d) is “explicit recognition of the parents’ constitutional right to the care, custody, and control of their children” (citing In re C.W.W., 788 So.2d 1020, 1023 (Fla. 2d DCA 2001))).

The instant case is distinguishable from I.B. v. Department of Children & Families, 876 So.2d 581 (Fla. 5th DCA 2004). In I.B., this Court held that a foster family had standing to intervene when they had a pending petition to adopt, they alleged an agreement with DCF to adopt the child in question, and the lower court ordered placement of the child elsewhere without considering the child’s best interest. Id. at 582-83, 587-88. This Court further observed that the grant of a foster parent license “specifically for [that] child” may have caused the foster family to “develop[ ] a stronger than normal bond with the child.” Id. at 587. In the instant ease, there is no allegation of an agreement to adopt C.M. or a foster license issued specifically for C.M., and the former foster parents did not have a pending adoption petition. The former foster parents point to no other basis for a “stronger than normal bond with” C.M. Further, unlike I.B., the trial court held a hearing on, and made findings regarding, C.M.’s best interests. Therefore, we find I.B. inapposite. See R.H. v. Dep’t of Children & Families, 988 So.2d 673, 677 (Fla. 4th DCA 2008) (noting I.B. merely required evidentiary hearing on best interests of child under facts and circumstances of each case); see also D.C. v. J.M., 133 So.3d 1080, 1081-82 (Fla. 3d DCA 2014) (quashing order allowing foster parents to intervene).

For these reasons, we affirm the trial court’s order.

AFFIRMED.

ORFINGER, WALLIS and LAMBERT, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Kyle HOSEY, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D13-5061.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 2014.
    Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel, and Judson M. Chapman, Senior Assistant General Counsel, Department of Highway Safety & Motor Vehicles, Pinellas Park, for Respondent.
   NORTHCUTT, Judge.

Kyle Hosey suffered a six-month suspension of his driver’s license, which he unsuccessfully challenged in an administrative hearing. On appeal, the circuit court reversed the suspension. Hosey now seeks a writ of certiorari to quash the portion of the circuit court’s decision that remanded for additional administrative proceedings. As explained in Forth v. Department of Highway Safety & Motor Vehicles, — So.3d—(Fla. 2d DCA 2014), the validity of the suspension has been rendered moot by the expiration of the six-month term. See McLaughlin v. Dep’t of Highway Safety & Motor Vehicles, 128 So.3d 815 (Fla. 2d DCA 2012).

Petition granted.

SILBERMAN and BLACK, JJ., Concur.


text:
    Franklin R. GWYN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3338.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2014.
    Rehearing Denied Oct. 7, 2014.
    Franklin R. Gwyn, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Tanya Camacho LYLE, Appellant, v. Jeffrey D. TOMLIN as Personal, etc., Appellee.
    No. 5D14-424.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2014.
    Rehearing Denied Oct. 2, 2014.
    Tanya Camacho Lyle, Casselberry, pro se.
    Dale T. Gobel and Miguel R. Acosta of Gobel Flakes, LLC, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.815(a).

EVANDER, COHEN, and LAMBERT, JJ., concur.


author: SHEPHERD, C.J. LAGOA, J.

text:
    John SANTIAGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2044.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2014.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael Mervine, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and SUAREZ, and LAGOA, JJ.
   SHEPHERD, C.J.

This is an appeal by John Santiago from his conviction and sentence after a jury trial. His assignments of error are that: (1) the trial court erred by amending the sentence to add a habitual violent felony offender designation after having made an evidentiary determination (at the original sentencing) that the State failed to establish Santiago qualified as a habitual violent felony offender; and (2) his sentence was vindictive. We agree with Santiago on his first assignment of error and, because we reverse Santiago’s sentence on this basis, find it unnecessary to consider the second assignment of error. A brief summary of the factual and procedural background of the case is necessary to explain our decision.

FACTUAL AND PROCEDURAL BACKGROUND

On June 9, 2009, following a jury trial, the trial court entered a judgment of conviction against John Santiago for the crimes of robbery with a non-deadly weapon and simple battery. Robbery with a non-deadly weapon is a first-degree felony and, generally, the maximum sentence permitted by statute for this crime is thirty years. See §§ 775.082(3)(b), 812.13(2)(b), Fla. Stat. (2006). However, if a defendant qualifies as a habitual violent felony offender pursuant to section 775.084(l)(b) of the Florida Statutes, a defendant may be sentenced up to a maximum of life in prison, and must be sentenced to a mandatory minimum of fifteen years. See § 775.084(4)(b)l.

On June 30, 2009, the trial court held a sentencing hearing and sentenced Santiago to life in prison without any mandatory minimum. Although it appears from our review of the record that Santiago had received the requisite notice and qualified for designation as a habitual violent felony offender, the court, prior to imposing sentence, made an evidentiary determination that the State failed to prove Santiago was given the necessary notice. Therefore, Santiago did not qualify as a habitual violent felony offender. Nevertheless, the trial judge sentenced Santiago to life in prison, citing as its reason “protection of the community.” This sentence was illegal.

Perhaps recognizing its predicament, the State returned to court eight days later and orally moved to resentence Santiago as a habitual violent felony offender. At this subsequent sentencing proceeding, the State succeeded in demonstrating it provided the requisite notice, and the trial judge elicited a sworn admission from Santiago that he had the necessary qualifying prior conviction. At the conclusion of this second sentencing proceeding, the trial judge reversed his original determination, pronounced Santiago qualified as a habitual violent felony offender, orally “resentence[dj” him as such, and entered a “corrected” written sentence reflecting his actions. In so doing, the court reversibly erred.

ANALYSIS

As our supreme court has made clear, a habitual offender designation is as much a part of a sentence as is incarceration. See State v. Matthews, 891 So.2d 479, 488-89 (Fla.2004) (“Habitual offender sentences are enhanced sentences imposed in an attempt ‘to protect society from habitual criminals who persist in the commission of crime after having been theretofore convicted and punished for crimes previously committed.’ ”) (quoting State v. Peterson, 667 So.2d 199, 200 (Fla.1996)). “Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). In the case before us, Santiago began to serve his original life sentence immediately upon its pronouncement on June 80, 2009. Thus, the purported “resentence” of Santiago as a habitual violent felony offender eight days later violated Santiago’s double jeopardy rights. See Akins v. State, 98 So.3d 60 (Fla. 2d DCA 2009) (concluding transformation of a “guidelines” sentence imposed at a probation revocation hearing into a habitual offender sentence in a subsequent jail credit proceeding violated double jeopardy where the trial court inadvertently failed to announce at the revocation hearing that the sentence imposed remained a habitual offender sentence); Rivera v. State, 862 So.2d 55, 56 (Fla. 2d DCA 2003) (stating amendment of sentence to impose sex offender probation in addition to previously pronounced drug probation constituted violation of defendant’s double jeopardy rights); Martinez v. State, 625 So.2d 1306, 1307 (Fla. 3d DCA 1993) (determining trial court’s initial decision not to sentence the defendant as a habitual offender precluded such a sentence on remand) (citing Grimes v. State, 616 So.2d 996, 998 (Fla. 1st DCA 1992)).

Given the trial court’s evidentiary determination at the original sentencing that Santiago did not qualify as a habitual violent felony offender, the statutory maximum sentence for this first-degree felony was thirty years. The sentence of life as a non-habitual violent felony offender was therefore illegal. If the State believed the trial court erred in determining Santiago did not qualify as a habitual violent felony offender, its remedy lay in an appeal of this finding, rather than seeking an “amended sentencing” eight days after the judgment and sentence was pronounced and after Santiago had begun to serve the sentence. See Fla. R. App. P. 9.140(c)(l)(M), (N). The State did not take an appeal, nor did it file a cross-appeal of that finding in the presently pending appeal of the trial court’s “corrected” sentence.

For the reasons stated, we vacate the amended judgment and life sentence imposed on Santiago and remand with directions that the trial court resentence Santiago as a non-habitual violent felony offender in accordance with section 775.082(3)(b) of the Florida Statutes.

So ordered.

LAGOA, J.

(specially concurring).

While I concur with the result reached by the majority, I write separately to address both the issues raised by the State’s position in this appeal, and what I believe is the basis for reversal and remand — the trial court’s lack of jurisdiction to “correct” Santiago’s illegal sentence to provide for a non-mandatory designation as a habitual violent felony offender.

Santiago was charged with armed robbery with a deadly weapon and aggravated battery. After a jury trial, he was found guilty of the lesser included offense of armed robbery without a deadly weapon and simple battery. On June 30, 2009, the trial court sentenced Santiago to life in prison. Both parties agree that this was an illegal sentence, and that the maximum sentence Santiago could have received was thirty years.

On July 8, 2009, the state orally moved to correct the sentence, apparently to show that Santiago should have been sentenced as a habitual violent felony offender. Indeed, a review of the record shows that when the State returned to the trial court on July 8, 2009, it was in order to attempt to establish (for a second time) that Santiago qualified as a habitual violent felony offender, and not to correct Santiago’s sentence because it exceeded the statutory maximum.

At the beginning of the July 8th hearing, the trial court stated as follows: “All right, Mr. Santiago, I know that [defense attorney] has explained why we’re back. It was my omission to check to see that you were really an HVO, and I just can’t take that for granted.” After finding that Santiago had been notified of the State’s intention to seek enhancement and that he had the necessary qualifying prior conviction, the trial court “resentenced” Santiago to life as a habitual violent felony offender. The July 8th written sentencing order states that the sentence entered on June 30th was “corrected” due to a “clerical error.” This appeal ensued.

Here, it is undisputed that the original June 30th sentence was illegal as it was in excess of the statutory maximum. Pursuant to Rule 9.140(c)(l)(M), Fla. R. App. P., the State may appeal from an order “imposing an unlawful or illegal sentence or imposing a sentence outside the range permitted by the sentencing guidelines.” Moreover, pursuant to section 924.07(l)(e), Florida Statutes, the State may appeal from “[t]he sentence, on the ground that it is illegal.” Because the original sentence of June 30 was illegal, it was appealable by the State. Instead of appealing the June 30th order, however, the State sought relief by attempting to “correct” the sentence before the trial court through an ore terms motion. In its brief, the State attempts to characterize its ore tenus motion before the trial court as one made pursuant to Florida Rule of Criminal Procedure 3.800(a), which provides that “[a] court may at any time correct an illegal sentence imposed by it ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to relief.” Fla. R. Crim. P. 3.800(a). The record shows, however, that the “correction” the State sought below was not related to the sentence’s illegality — that it exceeded the statutory maximum — but instead to the trial court’s failure to designate Santiago a habitual violent felony offender under section 775.084, Florida Statutes (2006). Because the State did not seek to “correct an illegal sentence,” Rule 3.800(a) is not applicable.

Additionally, although the State may file a motion to correct a sentencing error under Rule 3.800(b), it may only do so when “the correction of the sentencing error would benefit the defendant or to correct a scrivener’s error.” Fla. R. Crim. P. 3.800(b). Neither condition is present here. First, the record shows that when the State returned to the trial court eight days after the original sentencing it was not to reduce Santiago’s sentence to no more than thirty years, but instead to attempt to prove Santiago’s status as a habitual "violent felony offender. This clearly did not benefit Santiago as required by Rule 3.800(b). Second, the original June 30th sentence was not a scrivener’s error that could be corrected by a Rule 3.800(b) motion. Moreover, the trial court’s order describing the July 8th sentence as a correction due to “clerical error” does not make it so, especially where the trial court’s own statements show that the July 8th hearing held for the purpose of addressing Santiago’s status as a habitual violent offender.

Because the trial court did not have jurisdiction to entertain and rule on the State’s ore terms motion to “correct” Santiago’s otherwise illegal sentence to provide for a non-mandatory designation as a habitual violent felony offender pursuant to section 775.084(l)(b), I would reverse on that basis and remand to the trial court to vacate Santiago’s sentence, and resentence Santiago pursuant to section 775.082(3)(b), Florida Statutes (2006).

      . The battery conviction and sentence is not a part of this appeal.

      . It appears a substitute assistant state attorney represented the State at the original sentencing hearing.

      . At this point, Santiago had already begun serving his non-HVFO life sentence.

      . It is worth pausing to note that the "resen-tencing” proceeding conducted by the trial judge at the request of the State was not a true resentencing hearing. It is better described as a proceeding to "amend” an earlier pronounced sentence. The hearing was held in an attempt to legalize an otherwise illegal sentence. The distinction is not without a difference. The peril posed by sanctioning State "do-overs” of evidentiary determinations made at a sentencing proceeding is palpable.

      . The record does not contain a written motion filed by the State that prompted the hearing.

      . The trial court did not initially impose a habitual violent felony offender designation because Santiago's attorney claimed not to have been notified of the State’s intention to seek enhancement.

      . Illegal sentences include only: “(1) those sentences in excess of the statutory maximum; (2) those sentences that fail to give credit for record jail time; and (3) those sentences that violate double jeopardy by a post sentencing enhancement clear from the record.” Robinson v. State, 757 So.2d 532, 533 (Fla. 4th DCA 2000).

      .Indeed had the State sought to challenge the trial court's failure to designate Santiago a habitual violent felony offender, its remedy would not be through a Rule 3.800(a) motion. Cf. State v. McMahon, 94 So.3d 468, 477 (Fla.2012) (holding that trial court's failure to conduct a hearing on defendant’s habitual felony offender status under section 775.084 did not render a sentence illegal because "the trial court was not mandated to impose an HFO sentence even if a hearing had been held and [the defendant] was proven to qualify").

      . Although section 775.084(3)(a), Florida Statutes (2006), provides that "the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender,” the trial court is "not mandated to impose an HFO sentence.” McMahon, 94 So.3d at 477. See also Clines v. State, 912 So.2d 550 (Fla.2005) (habitual violent felony offender recidivist category is permissive, not mandatory). In this way, the instant case is distinguishable from Dunbar v. State, 89 So.3d 901, 906 (Fla.2012), in which the Supreme Court of Florida held that where the trial court initially pronounced a sentence it had no discretion to impose, it could, later that day and without the parties present, enter a written sentencing order to add nondiscre-tionary minimum mandatory terms. Dunbar, 89 So.3d at 906 ("When a trial court fails to pronounce nondiscretionary sentencing terms, the defendant has no legitimate expectation in the finality of that sentence, at least until the reviewing court has issued a mandate or the time for filing an appeal has run.”) (emphasis added).


author: WELLS, Judge.

text:
    The STATE of Florida, Appellant, v. Graylin KELLY, Appellee.
    No. 3D13-197.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2014.

      Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and James Moody, Assistant Public Defender, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   CORRECTED OPINION

WELLS, Judge.

We withdraw the opinion issued on May 21, 2014, and substitute the following corrected opinion in its place.

The State of Florida appeals from a thirty year suspended sentence imposed following an open plea of guilty to four separate armed robberies, each of which carries a minimum mandatory sentence. Because the sentence imposed is illegal, we reverse and remand to allow the defendant to withdraw his plea and/or to be resen-tenced.

While on probation for grand theft of a vehicle in case number F09-17826, Graylin Kelly was arrested for and charged with having committed seventeen separate robberies with a firearm. Nine of these charges were prosecuted by the United States of America in federal court where a thirty-two year sentence (which included a minimum mandatory sentence of twenty-seven years) was imposed. The eight remaining cases were prosecuted in state court, where four were dropped after Kelly demanded speedy trials.

On January 14, 2013, the first of these four cases (Fll — 019136) was called for trial. Following extensive discussions about how to structure a sentence that would run concurrent with Kelly’s federal sentence and that would allow Kelly to serve all of this sentence in federal prison, the State offered Kelly concurrent bottom of the guidelines sentences of 13.6 years in each of the four remaining cases, each with a ten year minimum mandatory, with each sentence to run concurrent with each other. When Kelly rejected this offer, which in effect would require that he serve ten years in state prison before beginning to serve his federal sentence, the State withdrew from negotiations and declared that it was ready for trial.

The trial court thereafter, over the State’s objection, offered to impose concurrent sentences of thirty years in state prison on each of the armed robbery charges; the court also offered to impose a fifteen year sentence for displaying a firearm while committing a felony and a five year sentence on the probation violation charge in case F09-17826 with all sentences to run concurrent. The court advised that it intended to suspend all of these sentences so that Kelly’s state “sentences” would run concurrent with his federal sentence and that he would serve all of his sentences in federal prison.

Kelly then pled guilty to the charges in each of these cases and was sentenced to a thirty-year suspended sentence for all of the cases pending against him. The State appeals, claiming the sentence is illegal because a sentence cannot be suspended where no probation has been imposed. Kelly counters arguing that the sentence is legal under Taylor v. State, 710 So.2d 686 (Fla. 3d DCA 1998), and its progeny. While we agree with neither position, we nonetheless find that the sentence imposed is illegal and must therefore be reversed.

Section 775.087 of the Florida Statutes clearly states that a conviction for robbery while possessing a firearm carries a ten-year minimum prison sentence, a sentence which cannot be suspended:

(2)(a)l. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for ... Robbery ... and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.01, shall be sentenced to a minimum term of imprisonment of 10 years....
(b) ... Notwithstanding s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time ... prior to serving the'minimum sentence.

§ 775.087(2)(a) l.c, (b), Fla. Stat. (2014).

While section' 27.366 of the Florida Statutes accords prosecutors with the discretion to waive imposition of minimum mandatory sentences, such leeway has not been accorded to the courts. § 27.366, Fla. Stat. (2014) (“It is also the intent of the Legislature that prosecutors should appropriately exercise their discretion in those cases in which the offenders’ possession of a firearm is incidental to the commission of a crime and not used in furtherance of the crime, used in order to commit the crime, or used in preparation to commit the crime.”); State v. Vanderhoff, 14 So.3d 1185, 1189 (Fla. 5th DCA 2009) (confirming that section 775.087(2) of the Florida Statutes removed most sentencing discretion from the judicial branch, according only the State Attorney with the discretion to waive a minimum mandatory sentence); Johnson v. State, 53 So.3d 360, 362 (Fla. 5th DCA 2011) (confirming that “the imposition of a mandatory minimum sentence under section 775.087(2) is a non-discretionary duty of a trial court where the record reflects that the defendant qualifies for mandatory minimum sentencing”).

The record in this case is that the State Attorney did not agree to waive the minimum mandatory sentences that section 775.087(2) required be imposed following Kelly’s acknowledgement of guilt to commission of four separate robberies while possessing a firearm, The court below was, therefore, without authority either to impose any sentence without also imposing the mandated minimum mandatory sentence required by section 775.087 or to suspend those sentences.

This court’s decision in Taylor and the decisions in Glenn v. State, 776 So.2d 330 (Fla. 4th DCA 2001), Davis v. State, 852 So.2d 355 (Fla. 5th DCA 2003), Sadler v. State, 980 So.2d 567 (Fla. 5th DCA 2008), and Rodgers v. State, 76 So.3d 349 (Fla. 3d DCA 2011), relied on by Kelly in his brief, have no bearing on this determination. In Taylor, this court utilized an exception to the general rule that a sentence may be suspended only as an incident to probation, which exception applies where extraordinary circumstances exist. See Taylor, 710 So.2d at 637 (citing Helton v. State, 106 So.2d 79 (Fla.1958)); see also Mazza v. State, 948 So.2d 872, 874 (Fla. 4th DCA 2007) (“Since at least 1941, a trial court has lacked authority to suspend or withhold indefinitely the imposition of sentence upon a convicted defendant except as an incident to probation under the provisions of Chapter 948, Florida Statutes.”). However, in doing so we noted that “all parties to the appellant’s entry of a guilty plea [understood] that he would serve the agreed seven year sentence in federal prison concurrent to a longer federal sentence.” Taylor, 710 So.2d at 637. Similar understandings were reached by “all” parties in Glenn and Sadler. There was no such understanding amongst all of the parties in this case because the State — the only entity that could waive the minimum mandatory sentences — refused to agree to it. And while the decisions in Davis and Rodgers suggest that no plea agreements with the State were involved, from the sentences involved (five years for grand theft of a motor vehicle in Davis and a three year sentence in Rodgers) it appears that no minimum mandatory sentences had to be imposed. In sum, not one of these decisions suggests, much less holds, that where an open plea is entered on a charge which carries a minimum mandatory sentence that a trial court may unilaterally waive that sentence and/or suspend it.

Thus, because the sentence imposed below is illegal, it must be reversed. Nevertheless, because “Florida Rule of Criminal Procedure 3.172(c)(1) requires that the trial judge determine that a defendant understands the reasonable consequences of the plea, including ‘the maximum possible penalty, and any mandatory minimum penalty provided by law,’ ” Kelly should be allowed to withdraw his plea on remand if he so chooses. Vanderhoff, 14 So.3d at 1189 (quoting Fla. R. Civ. P. 3.172(c)(1)). Accordingly, the sentences imposed in this case are reversed and the matter remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . Kelly was charged in this case with robbing Anne Mompoint on July 15, 2011 with a gun. In FI 1-019134, Kelly was charged with robbing a store on July 19, 2011 with a gun; in FI 1-019137, he was charged with robbing Arsay Gonzales on July 16, 2011 with a gun; and in F11-029078A, he was charged with robbing a different store with a gun. Kelly was also charged with displaying a firearm while committing a felony in this case.

      . We also note that the court’s decision to suspend the sentences constituted a downward departure sentence for which no valid justification was provided. State v. Brannum, 876 So.2d 724, 725 n. 1 (Fla. 5th DCA 2004).


text:
    LOVE’S WINDOW & DOOR INSTALLATION, INC., Appellant, v. ACOUSTI ENGINEERING COMPANY, etc., et. al., Appellees.
    No. 5D14-1555.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2014.
    Certification Denied Oct. 2, 2014.

      Rieran F. O’Connor, Michelle Concepcion and Derek J. Angelí, of O’Connor & O’Connor, LLC, Winter Park, for Appellant.
    Stuart J. Freeman, of Brasfield, Freeman, Goldis & Cash, P.A., St. Petersburg, for Appellee.
   PER CURIAM.

This appeal involves complex litigation regarding a construction project known as Artisan Club Condominium Community (“the Association”) in Osceola County. Plaintiff below, the Association, filed its initial construction defect action in October 2009 against the projects’ developers and the general contractor, Core Construction Services, Southeast, Inc. Numerous third and fourth party complaints were subsequently filed in the matter. One of those third party actions involved the general contractor bringing suit against the Appel-lee, Dunn Corporation, for improper installation of all of the aluminum windows on the project. In turn, Dunn Corporation brought a fourth party action against Love’s Window and Door Installation, Inc., the Appellant, alleging that the Appellant improperly carried out its obligations regarding the window installation, as subcontracted by the Appellee.

As complex as the Osceola County litigation is, the issue presented on appeal in this case is not. Appellant, based on a provision in its contract with Appellee, moved to sever its action involving Appel-lee and transfer venue to Volusia County. Both parties agree that there is a forum selection clause in their contract and that such a provision is generally mandatory. This was the argument presented by Appellant to the trial judge handling the litigation. Appellee responded that there are exceptions to the mandatory transfer rule when there are compelling reasons not to enforce the provision.

Compelling reasons not to enforce a forum selection clause include avoiding multiple lawsuits, minimizing judicial labor, reducing the expenses to the parties, and avoiding inconsistent results. See Mason v. Homes by Whitaker, Inc., 971 So.2d 1029, 1029-30 (Fla. 5th DCA 2008); Girdley Constr. Co. v. Architectural Exteriors, Inc., 517 So.2d 137, 138 (Fla. 5th DCA 1987) (holding a forum selection provision should not be enforced when a transfer of venue would result in multiple suits and splitting causes of action).

The trial judge, based on decisions from this Court, denied Appellant’s motion. Appellant conceded that some of the witnesses to its action would also have to testify in Osceola County. Further, the claim against James W. Love, individually, would have to remain in Osceola County. We find the facts of this case establish a compelling reason not to enforce the forum selection provision found in the parties’ contract.

AFFIRMED.

EVANDER, LAMBERT, JJ„ and HARRIS, C.M., Senior Judge, concur.


author: ROTHENBERG, J.

text:
    Ramiro RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2435.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2014.

      Steven M. Swickle, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and SCALES, JJ.
   ROTHENBERG, J.

Ramiro Rodriguez (“the defendant”) appeals his convictions for manslaughter, attempted manslaughter, burglary with an assault or battery or while armed, conspiracy to commit burglary, kidnapping, and possession of a firearm during the commission of a felony. The defendant’s primary arguments on appeal are that: (1) he was entitled to an independent act instruction on the manslaughter and attempted manslaughter counts; and (2) the trial court erred in denying his motion for a judgment of acquittal (“JOA”) on the kidnapping count because the confinement was insufficient to support a conviction for kidnapping. Because we conclude that no view of the evidence would support an independent act instruction and find that there was sufficient evidence to support the defendant’s conviction for kidnapping, we affirm.

The defendant was involved in an altercation that resulted in the death of Erik Lopez (“Erik”), who suffered six gunshot wounds, and injury to Erik’s wife, Olga Lopez (“Olga”) (collectively, “the Lo-pezes”), who was shot in the leg. Although some of the facts are in dispute, the following facts are undisputed. In the early morning hours of August 5, 2007, Erik and Olga were at the defendant’s home attending a party that involved substantial drinking and drug use, including cocaine. At some point during the partying, and without the defendant’s knowledge, the defendant’s girlfriend, Lois Arroyo (“Lois”), engaged in sexual activity with Olga. When the defendant learned of the sexual activity, he became upset, and the Lopezes left the party.

After the Lopezes left the party, they called Lois and invited her to come to the Lopezes’ home to participate in a sexual threesome with the Lopezes. When the defendant heard what was being proposed, he became enraged and told Erik on the phone that he was angry and that he was coming over “to talk.” After soliciting the assistance of his son Ryan (“Ryan”), his friend Alain Llano (“Alain”), and Lois, the four of them (collectively, “the defendants”) drove to the Lopez home in Alain’s vehicle. The defendants were heavily armed with firearms, including at least three handguns and an AK-47 assault rifle.

Upon their arrival, the defendants entered the Lopez home. They duct taped Erik to a chair in his living room, and, according to Ryan, who testified at the defendant’s trial, while they were attempting to duct tape Lois to a chair as well, Erik broke free from his bindings, pulled out a gun he had concealed in his waistband, and began firing. A firefight ensued. Erik and Olga were shot several times, and Alain was shot in the shoulder. Erik died at the scene from his gunshot wounds. All of the defendants were arrested and charged.

At trial, the State presented eyewitness testimony through two of the defendant’s coperpetrators — the defendant’s son Ryan and his friend Alain — as well as Olga and several of the Lopezes’ neighbors. Although the defendant did not testify, his pre-trial statement was introduced into evidence through one of the testifying detectives.

At the close of the State’s case in chief, the defendant moved for a JOA on the kidnapping charge on the basis that the evidence did not establish that the confinement was “substantial.” The trial court deferred its ruling, but ultimately denied the JOA motion at the close of the evidence. The trial court also denied the defendant’s request that the jury be instructed on the independent act doctrine after concluding that there was no evidence to support such an instruction.

The trial court’s failure to provide the jury with the defendant’s requested jury instruction is the defendant’s first argument on appeal. Although we review a trial court’s decision to exclude a requested jury instruction for an abuse of discretion, Carpenter v. State, 785 So.2d 1182, 1199-1200 (Fla.2001); Martin v. State, 110 So.3d 936, 938 (Fla. 1st DCA 2013), that discretion is substantially circumscribed when the instruction relates to a defendant’s valid theory of defense, as the trial court must give the requested instruction if there is any evidence supporting the defendant’s defense. Goode v. State, 856 So.2d 1101, 1104 (Fla. 1st DCA 2003). Thus, we must determine whether there was any evidence introduced that would support the defendant’s request for an independent act instruction.

“The ‘independent act’ doctrine arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofel-on, ‘which fall outside of, and are foreign to, the common design of the original collaboration.’ ” Ray v. State, 755 So.2d 604, 609 (Fla.2000) (quoting Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995)).. An independent act instruction is appropriate only when the actions of the cofelon who allegedly acted outside the scope of the original plan were not foreseeable based on the actions a defendant set in motion. See Bradley v. State, 33 So.3d 664, 675 (Fla.2010) (“[The independent act] defense cannot apply when death was a foreseeable result of the plan.”); Jackson v. State, 18 So.3d 1016,1026 (Fla.2009) (holding that the independent act instruction is warranted only when the cofelon’s act is “outside of, and not a reasonably foreseeable consequence of, the common design or unlawful act contemplated by the defendant”); Johnson v. State, 36 So.3d 170, 171-72 (Fla. 3d DCA 2010) (“We find that the trial court did not abuse its discretion to decline to instruct the jury on the independent act defense where, as here, death was a reasonably foreseeable consequence of the plan.”). The case law on the independent act doctrine also establishes that “an independent act instruction is inappropriate when the unrebutted evidence shows the defendant knowingly participated in the underlying criminal enterprise when the murder occurred or knew that firearms or deadly weapons would be used.” Roberts v. State, 4 So.3d 1261,1264 (Fla. 5th DCA 2009) (emphasis added) (discussing several cases interpreting the independent act doctrine); see also Diaz v. State, 600 So.2d 529, 529-80 (Fla. 3d DCA 1992) (upholding the defendant’s second degree murder conviction when one of his coperpetrators was shot and killed by their intended robbery victim by holding that the trial court did not err in refusing to provide the jury with an independent act instruction where the unexpected use of a gun during the commission of the attempted robbery was not an “intervening act” as a matter of law).

Although the eyewitness accounts of what happened varied somewhat from witness to witness, for purposes of our analysis on this point, we need only look to the testimony that is most favorable to an independent act instruction: the defendant’s own statement. Based on the defendant’s own version of the events, he was the mastermind and driving force behind the entire criminal enterprise. The defendant admitted to the police that: he went to the Lopez home to “scare” Erik; he solicited the help of Ryan, Alain, and Lois; he and his coperpetrators were heavily armed; and he brought duct tape with him to confine Erik to a chair. Thus, regardless of which version of the evidence is true — (1) Alain shot and killed Erik, as the defendant claims, or (2) the defendant shot and killed Erik, as all of the other witnesses testified and the physical evidence supports — the defendant still would not have been entitled to an independent act instruction because he orchestrated the entire sequence of events. The defendant went to Erik’s house to confront Erik armed with a firearm, and he brought Ryan, Lois, and Alain, who the defendant knew would be armed with firearms, to assist him in confronting and “scaring” Erik. Given these facts, it is hardly unforeseeable that violence would occur and that someone could be shot and/or killed during this armed confrontation. It was certainly reasonably foreseeable that when the defendant and his armed cohorts confronted Erik, duct taped Erik to a chair, and began to duct tape Erik’s wife to a chair, that Erik would himself resort to violence to protect himself and his wife by any means available to him. Thus, even if we were to examine the testimony in the light most favorable to the defendant, the defendant was not entitled to an independent act instruction.

The defendant’s second argument on ¿ppeal is that the trial court should have granted his JOA motion because the State did not present any evidence that the victim(s) had been sufficiently confined to warrant a kidnapping conviction. This argument reflects a misunderstanding of the law on kidnapping as well as the evidence introduced at trial.

Section 787.01(a), Florida Statutes (2007), provides as follows:

(l)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function,

(emphasis added). When a defendant is charged with kidnapping with the intent to facilitate the commission of a felony under subsection 787.01(l)(a)2, the State must also prove that the confinement was not “inconsequential or inherent in the nature of the felony [sought to be furthered by the kidnapping].” Faison v. State, 426 So.2d 963, 966 (Fla.1983) (quoting Harkins v. State, 380 So.2d 524, 528 (Fla. 5th DCA 1980)); see also Frederick v. State, 931 So.2d 967, 969 (Fla. 3d DCA 2006) (explaining the reasoning and holding of Fai-son).

This substantiality of confinement factor enunciated in Faison, however, is germane only when the charge of kidnapping is brought under subsection (a)2, where it is alleged that the confinement was with the specific intent to commit or facilitate the commission of another felony. See Perry v. State, 57 So.3d 910, 912 (Fla. 5th DCA 2011) (noting that the case law clearly provides that the Faison test applies only when kidnapping is charged under section 787.01(l)(a)2).

In this case, the State charged the defendant in the alternative with kidnapping to facilitate the commission of a felony (specifically, aggravated assault) under subsection (a)2, and also with the intent to terrorize the victim under subsection (a)3. Because the facts of this case demonstrate a textbook example of kidnapping with the intent to terrorize the victim— the defendant admitted he intended to scare Erik by duct taping him to the chair and pointing guns at him — we need not even address whether the confinement was inconsequential to support a kidnapping conviction under subsection (a)2.

Nonetheless, we briefly address the defendant’s claim that the confinement of Erik was insufficient to support a conviction of kidnapping under subsection (a)2 as a matter of law. Specifically, the defendant argues that because Erik broke free from his bindings (he had been duct taped to a chair), his confinement was inconsequential.

In Ferguson v. State, 533 So.2d 763, 764 (Fla.1988), when addressing the three-prong test adopted in Faison, the Florida Supreme Court held that “[t]he duration of the confinement is not an integral part of the test even though it may bear on whether the confinement was slight or inconsequential.” Rather, the issue is whether the initial confinement was intended to make the crime substantially easier to commit or substantially lessen the risk of detection. This determination “does not depend on the accomplishment of its purpose.” Id.

The defendant admits that his intent in duct taping Erik to the chair was to “scare” Erik, and Ryan testified that the Defendant also attempted to duet tape Olga to another chair in furtherance of his intended purpose. Although the determination of whether the confinement of Erik was inconsequential was not dependent upon the success or accomplishment of the defendant’s purpose, which was to facilitate the commission of the defendant’s aggravated assault upon Erik, the evidence established that the confinement did in fact accomplish the defendant’s intended purpose: to assault and terrorize Erik. He so terrorized Erik that Erik broke free from his bindings, pulled out a gun, and began firing to protect himself and his wife. Thus, under either of the theories charged, the evidence was sufficient to support the defendant’s conviction for kidnapping.

Affirmed.

      . Rodriguez also raised two other issues on appeal: that the trial court erred in not allowing him to replace his privately-retained counsel and that his trial counsel was ineffective on the face of the record. These arguments clearly lack merit, and we affirm the trial court’s decisions on these points without discussion.


text:
    Timothy HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1886.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2014.
    James S. Purdy, Public Defender, and Craig R. Atack, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012), review granted, 107 So.3d 405 (Fla.2012).

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


text:
    VMS, INC. a/k/a VMS Maintenance Systems, Inc., Appellant, v. Elvis ALFONSO, Appellee.
    No. 3D13-1044.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2014.

      DeMahy Labrador Drake Victor & Cabeza, Gregory A. Victor, Susana C. Nunez, Coral Gables, Mark R. Boyd and Scott A. Markowitz, Fort Lauderdale, for appellant.
    Beckham & Beckham, Pamela Beckham and Eugene Beckham, Miami, for appellee.
    Before, SHEPHERD, C.J., and WELLS, SUAREZ, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ, LOGUE and SCALES, JJ.
   WELLS, Judge.

VMS, Inc. appeals from a partial summary judgment determining that it was estopped from asserting workers’ compensation immunity to bar an action sounding in negligence brought by the employee of a sub-subcontractor. Because VMS secured the payment of compensation required by statute, we find that VMS is not estopped from asserting such immunity and reverse.

As pertinent here, the facts are undisputed. Pursuant to a written contract, VMS contracted with the Florida Department of Transportation to maintain and manage portions of specified roadways and bridges in Palm Beach, Broward, and Miami-Dade Counties. As part of that contract, VMS was obligated to secure, and secured, workers’ compensation insurance.

In September 2008, VMS subcontracted road work in some of these counties to ABC. That subcontract, like that between VMS and the Department of Transportation, obligated ABC to secure workers’ compensation insurance. It is undisputed that it did so.

Thereafter, ABC hired Lazaro Contreras to perform some of the work ABC had obligated itself to do. Contreras in turn hired a number of day laborers including Elvis Alfonso, the plaintiff here. On October 15 or 16, 2008, while performing work covered by the VMS/ABC/Contreras contract, Alfonso was seriously burned when hot tar spilled on him. Alfonso immediately was taken to the hospital where it was reported that he had sustained the burns while working at home.

While the evidence regarding VMS’ knowledge of this incident is disputed, there is no dispute that Contreras did not have workers’ compensation insurance and that ABC and VMS did not report this incident to their compensation carriers. Alfonso also never asserted a claim for workers’ compensation benefits; instead, on March 2, 2012, he filed suit against both ABC and VMS for negligence. VMS responded, claiming workers’ compensation immunity and, alternatively, comparative negligence either on Alfonso’s or other third parties’ part. ABC eventually entered into a settlement agreement with Alfonso and is no longer a party to this case.

Thereafter, Alfonso moved for entry of partial summary judgment against VMS, arguing that VMS was estopped from claiming workers’ compensation immunity and from asserting comparative negligence because VMS had failed to notify its workers’ compensation carrier that Alfonso had been injured. The trial court agreed; we reverse.

Section 440.10(l)(a) of the Florida Statutes provides that “[ejvery employer ... shall be liable for, and shall secure, the payment to his or her employees ... the compensation payable under ss. 440.13, 440.15, and 440.16.” § 440.10(l)(a), Fla. Stat. (2013) (emphasis added). The liability imposed on employers to “secure payment” of compensation requires only that an employer insure and keep insured the payment of those workers’ compensation benefits guaranteed by section 440.10(l)(a); it does not impose a duty to actually pay benefits to an employee:

(1) Every employer shall secure the payment of compensation under this chapter:
(a) By insuring and keeping insured the payment of such compensation with any stock company or mutual company or association or exchange, authorized to do business in the state;
(b) By furnishing satisfactory proof to the Florida Self-Insurers Guaranty Association, Incorporated, created in s. 440.385, that it has the financial strength necessary to ensure timely payment of all current and future claims individually and on behalf of its subsidiary and affiliated companies with employees in this state and receiving an authorization from the department to pay such compensation directly....

§ 440.38, Fla. Stat. (2013); Mena v. J.I.L. Constr. Group Corp., 79 So.3d 219, 225 n. 1 (Fla. 4th DCA 2012) (rejecting the notion that the term “secure payment of compensation” imposes an “automatic duty to actually pay benefits,” but only requires that payment be insured “with any stock company or mutual company or association or exchange, authorized to do business in the state” (quoting § 440.38, Fla. Stat. (2004))); see also Limerock Indus., Inc. v. Pridgeon, 743 So.2d 176, 177 (Fla. 1st DCA 1999) (finding section 440.38’s requirement that the employer “secure payment of compensation” was satisfied where the employer “secur[ed] a policy of workers’ compensation insurance that covered the injured employee”).

Because section 440.11(1) of the Florida Statutes makes the liability to secure compensation imposed by section 440.10(1) the exclusive form of liability imposed by Chapter 440 on an employer, once an employer acquires and maintains workers’ compensation insurance for the benefit of its employees, it becomes immune from suit. See § 440.11(1), Fla. Stat. (2013); Walker v. United Steel Works, Inc., 606 So.2d 1243,1244 (Fla. 2d DCA 1992) (“Section 440.11(1) makes [the] liability to secure compensation the exclusive form of liability of the employer.”).

Section 440.10(l)(b) extends the liability imposed by section 440.10(l)(a) on employers to secure insurance coverage for the payment of workers’ compensation benefits to contractors requiring them to secure coverage for the employees of subcontractors engaged on sublet contract work:

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

§ 440.10(l)(b), Fla. Stat. (2013) (emphasis added).

As the Florida Supreme Court has confirmed, liability is imposed on employers by these provisions only to secure workers’ compensation insurance coverage and when an employer subcontracts part of its work to another, that contractor/employer is liable only for assuring that workers’ compensation coverage has been secured for the subcontractor’s employees:

Section 440.10 establishes the concept of “statutory employer” for contractors who sublet part of their work to others. Section 440.11 provides that the liability established in section 440.11 is “exclusive.” The effect of section 440.10 is that where a subcontractor performing part of the work of a contractor fails to secure payment of compensation, the contractor is liable for same. If both subcontractor and contractor fail to secure coveraye, then the contractor has an employer’s liability to the subcontractor’s injured employee for purposes of an action for statutory benefits or damages at law. Thus even when a subcontractor agrees to secure coverage for its employees, a prudent contractor will prepare for or insure against its contingent liability as “statutory employer” in case the subcontractor fails to do so.
The exclusiveness of liability provided for by section 440.11 extends to an employer’s “liability” as defined in section 440.10. Thus a contractor who sublets part of its work to a subcontractor, being liable to secure coverage for employees of its subcontractor, is also immune from suit by such employees when such coverage has been secured. It is the liability to secure coverage for such employees in the event the subcontractor does not do so that immunizes a contractor from suit by such employees.

Motchkavitz v. L.C. Boggs Indus., Inc., 407 So.2d 910, 912-13 (Fla.1981) overruled on other grounds by Employers Ins. of Wausau v. Abernathy, 442 So.2d 953 (Fla.1983) (emphasis added) (citation omitted); see also Miami-Dade County v. Acosta, 757 So.2d 539, 541 (Fla. 3d DCA 2000) (“It is clear that section 440.10(l)(b) places on the statutory employer [ (the contractor) ] ... the responsibility for providing, or ensuring that the subcontractor provides, workers’ compensation coverage to its, including its subcontractors’, employees”) (emphasis added); Adams Homes of Nw. Fla., Inc. v. Cranfill, 7 So.3d 611, 613 (Fla. 5th DCA 2009) (“[W]here the statutory employer secures coverage or ensures that the subcontractor does so, the statutory employer is immune from suit for the employees’ personal injuries.”) (emphasis added). “Put differently, ‘where a subcontractor performing part of the work of a contractor fails to secure payment of compensation, the contractor is liable for the same.’ ” Mena, 79 So.3d at 224-25 (quoting Amorin v. Gordon, 996 So.2d 913, 916 (Fla. 4th DCA 2008) (quoting Motchkavitz, 407 So.2d at 912).

In this case, there is no dispute that VMS secured coverage for ABC’s employees by virtue of the insurance coverage secured by its subcontractor, ABC. Having satisfied this obligation, VMS was not liable for injuries sustained by any of ABC’s or Contreras’ employees while at work. See § 440.10(l)(b), Fla. Stat. (2013); § 440.11(1), Fla. Stat. (2013).

This outcome is not affected by this court’s decision in Ocean Reef Club, Inc. v. Wilczewski, 99 So.3d 1 (Fla. 3d DCA 2012), because no contractors or subcontractors were involved in that case. There, two employees sued their employer for work-related illnesses and because that employer failed to notify its workers’ compensation insurance carrier of their claims this court determined that the employer was estopped from asserting in the civil suit the immunity that the insurance otherwise conferred. While that decision might have some application to ABC’s ability to assert its immunity from suit, it has no bearing on VMS’s ability to do so.

Rather, as the court in Mena confirmed, because contractor/VMS is “liable” solely for assuring that subcontractor/ABC secured and had in place workers’ compensation insurance, or, alternatively, had secured its own insurance in the event ABC failed to do so, VMS was not liable for injuries to ABC’s or to Contreras’ workers and had no obligation to notify its carrier of Alfonso’s injury:

J.I.L. [the sub-subcontractor] procured a policy of worker’s compensation insurance that was in effect for the date of Mena’s accident. Slorp [the subcontractor] verified that J.I.L. had coverage. Slorp was Mena’s statutory employer because it owed a contractual obligation to the general contractor and subcontracted a portion of that work to J.I.L., thus taking on the responsibility to provide coverage for Mena in the event J.I.L. failed to do so. See Candyworld, Inc. v. Granite State Ins. Co., 652 So.2d 1165, 1167 (Fla. 4th DCA 1995); Woods v. Carpet Restorations, Inc., 611 So.2d 1303, 1304 (Fla. 4th DCA 1992). “[WJhere the statutory employer secures coverage or ensures that the subcontractor does so, the statutory employer is immune from suit for the employees’ personal injuries.” Adams Homes of Nw. Fla., Inc. v. Cranfill, 7 So.3d 611, 613 (Fla. 5th DCA 2009) (emphasis added). Accord Latite Roofing & Sheet Metal Co. v. Barker, 886 So.2d 1064, 1066 (Fla. 4th DCA 2004) (contractor “performed in the way the statute sought to encourage” and was “entitled to immunity” where it verified that its subcontractor had coverage); Motchkavitz, 407 So.2d at 913 (“It is the liability to secure coverage for such employees in the event the subcontractor does not do so that immunizes a contractor from suit by such employees.”). Consequently, Slorp was immune from Mena’s negligence action, and we affirm the trial court’s entry of summary judgment for Slorp.

Mena, 79 So.3d at 225. Thus, the fact that ABC may have been estopped from asserting the exclusive remedy provided to it by Chapter 440 had no effect on VMS’ liability or the immunity accorded to VMS by law.

In short, “so long as security for compensation is maintained for all [its] statutory employees, the contractor[ ] obligated to secure such compensation [is] immune from suit.” Walker, 606 So.2d at 1244; see also Brickley v. Gulf Coast Constr. Co., 153 Fla. 216, 14 So.2d 265, 266 (1943) (“If payment of compensation has been secured by the general contractor, either directly or through the sub-contractor, a recovery for injury or death arising out of and in the course of the contract work is exclusively under the Workmen’s Compensation Law, for compensation.”); Acosta, 757 So.2d at 541 (“[W]here the statutory employer secures coverage, or ensures that the subcontractor does so, the statutory employer is immune from suit for the employee’s personal injuries.”); Limerock Indus., Inc., 743 So.2d at 177 (reversing a finding that the employer was not entitled to workers’ compensation immunity in a civil negligence action, where the employer “had secured payment of compensation by securing a policy of workers’ compensation insurance that covered the injured employee”); Broward County v. Rodrigues, 686 So.2d 774, 775 (Fla. 4th DCA 1997) (“When the statutory employer [secures coverage for its statutory employees], the statutory employer is immune from suit for the employee’s personal injuries, as worker’s compensation is the exclusive remedy.”).

For these reasons, we find that VMS had no obligation to notify its carrier of Alfonso’s injury and cannot be estopped from asserting the immunity it enjoys by virtue of ABC having secured and having in place workers’ compensation insurance coverage.

Accordingly, the order granting summary judgment in favor of Alfonso is reversed.

Reversed and remanded.

On En Banc Consideration

During the pendency of this action, it has come to this Court’s attention that a statement made in dicta in Catalfumo Construction, LLC v. Varella, 28 So.3d 963, 965 (Fla. 3d DCA 2010), that as a consequence of a subcontractor’s insurer’s denial of a worker’s claim, the contractor at issue there was required to provide “workers’ compensation” for the subcontractor’s employee is at odds with the opinion herein. We therefore recede from that statement in Catalfumo and confirm the determination made herein that to benefit from the immunity conferred by sections 440.10 and 440.11 of the Florida Statutes, a contractor need only ensure that workers’ compensation insurance coverage has been secured for each worker for whom it is the statutory employer; the contractor need not ensure that actual payment of these insurance benefits be made to such employees.

      . Section 440.11(1) provides:
      The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfea-sor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death ....
      § 440.11(1), Fla. Stat. (2013).


text:
    Sean JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1967.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2014.
    Sean Jackson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See § 948.06(2)(e), Fla. Stat. (2014) (providing that when a court revokes a defendant’s community control it may “impose any sentence which it might have originally imposed before placing the ... offender on probation or into community control”); cf. § 958.14, Fla. Stat. (2011) (providing that if a defendant was placed on community control as a youthful offender, upon revocation the court may not sentence the defendant to more than six years’ imprisonment where the violation is technical or non-substantive); Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995) (applying section 958.14 and holding a defendant placed on probation as a youthful offender cannot be sentenced to more than six years’ imprisonment following a revocation of probation based upon a technical violation).

See also, § 921.0017, Fla. Stat. (2014) (providing that, following revocation of probation or community control on a split sentence, the trial court shall determine the amount of credit for jail time previously served and shall direct the Department of Corrections to calculate the amount of credit for prison time previously served on the split sentence).


text:
    Stephanie Ann SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3590.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2014.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Stephanie Smith (defendant) appeals her sentences, which were imposed by the trial court after she entered a plea of nolo contendere to the charges of aggravated child abuse, child neglect causing great bodily harm, and possession with the intent to distribute materials depicting the sexual performance of a child. Determining that the sentence on count I is illegal, we reverse the defendant’s sentences and remand for re-sentencing.

The defendant was charged with committing the crimes of aggravated child abuse (count I), neglect of a child causing great bodily harm (count II), and unlawful possession with intent to promote materials depicting sexual performance by a child (count III). She entered an open plea of nolo contendere to all charges. The trial court sentenced her to a term of 25 years’ imprisonment followed by one year of probation on count I, 15 years’ imprisonment on count II, and 15 years’ imprisonment on count III. The sentences on counts II and III were ordered to run concurrent to the sentence on count I, but the sentence on count III was ordered to run consecutive to the sentence on count II.

The defendant contends that the trial court reversibly erred by imposing a term of one year of probation on her conviction for count I. Specifically, she maintains that the trial court erred in ordering her to serve one year of probation during the time that she will still be imprisoned on count III because it is error to structure a sentence where probation on one count is ordered to be served simultaneously with incarceration on other related counts. Foster v. State, 889 So.2d 951 (Fla. 5th DCA 2004). See also Hatton v. State, 689 So.2d 1195 (Fla. 4th DCA 1997) (explaining that incarcerative portions of all counts of sentence must be completed before probationary portion of a related count begins); Dewitt v. State, 639 So.2d 694 (Fla. 5th DCA 1994) (explaining that it is reversible error to order probation on one conviction to be served simultaneously with incarceration on additional counts). The State properly concedes error.

The defendant asserts that the proper remedy is for this court to strike the probationary portion of her sentence. The State argues that the proper remedy is for this court to remand the matter for re-sentencing on all charges so that the trial court has the opportunity to effectuate its original sentencing intent. We agree with the State.

Our court has authorized trial courts to, on remand, re-structure a defendant’s sentence in a manner which effectuates the original intent of the trial court so long as the new sentence is not vindictive. Godwin v. State, 116 So.3d 1280 (Fla. 5th DCA 2013). The transcript of the sentencing hearing indicates that the trial court intended that the defendant be under state supervision for thirty years and that she serve a one-year term of probation. The trial court can re-structure the sentences to legally accomplish that result.

SENTENCES REVERSED and CAUSE REMANDED for RE-SENTENCING.

SAWAYA, PALMER and LAMBERT, JJ., concur.


text:
    Kamilia Shebre BRIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3722.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2014.
    James S. Purdy, Public Defender, and Frank W. Scott, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Kamilia Briggs appeals her probation order modifying “No Violent Contact” to “No Contact” as a violation of double jeopardy. Appellant pled to felony battery against Domisha Collins. She was sentenced to probation with the standard term to have no contact with Collins, but, upon motion, the court changed this to “no violent contact.”

Problems between Appellant and Collins continued, and two violation of probation charges were subsequently filed. The first was dismissed by the State and the second was dismissed by the court. Perhaps in order to protect Collins, the court sua sponte modified the terms of probation to reinstate the standard term of no contact.

Appellant claims the court violated her double jeopardy rights by increasing her penalty by modifying her sentence. We reluctantly agree.

REVERSED.

TORPY, C.J., PALMER, J., and HARRIS, C.M., Senior Judge, concur.


author: MALTZ, H., Associate Judge.

text:
    Ishmael Anthony PETERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2206.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2014.

      Jason M. Wandner, of Jason M. Wand-ner, P.A., Miami Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Anthony J. Golden and Carmen F. Corrente, Assistant Attorney Generals, Daytona Beach, for Appellee.
   MALTZ, H., Associate Judge.

We affirm the convictions and sentences imposed without prejudice to Appellant filing an appropriate post-conviction motion pursuant to Florida Rule of Criminal Procedure 3.850 that addresses trial counsel’s examination of witness Danae Craig.

AFFIRMED.

SAWAYA and ORFINGER, JJ., concur.


text:
    Thomas R. FIELDING, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2371.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2014.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We reverse and remand this cause with instructions that the trial court conduct a trial pursuant to section 394.918(3) & (4), Florida Statutes (2013). Spivey v. State, 100 So.3d 1254, 1257 (Fla. 5th DCA 2012).

REVERSED AND REMANDED.

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


text:
    Bobby L. MAGWOOD, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
    No. 1D14-1399.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2014.
    Bobby L. Magwood, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Matthew Franklin Vitale, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

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


author: LOGUE, J.

text:
    Abel LUGONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1100.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   LOGUE, J.

Abel Lugones appeals from a conviction and sentence for aggravated battery with a deadly weapon. He asserts that the trial court erred in giving the then-current standard jury instruction on attempted manslaughter, which included an element of intent to kill, where he was ultimately convicted of an offense not more than one step removed from the attempted manslaughter charge. We agree and reverse.

FACTS AND PROCEDURAL HISTORY

On the night of March 13, 2010, Lugones attended a birthday party where heavy drinking occurred. By the end of the night, Lugones had suffered serious injuries from being struck on the head with large pieces of cinder block and he had stabbed two other partygoers. At trial, the accounts of what occurred conflicted.

According to the State, Lugones made an unprovoked attack on the first victim, Reinaldo Gonzalez, stabbing him multiple times in the torso; Lugones then stabbed the second victim, Leonel Muniz, in the foot when Muniz came to Gonzalez’s assistance; only after these attacks, Lugones was injured when he was stoned by an angry crowd of partygoers. According to the defense, however, Lugones stabbed the victims in self-defense after they assaulted him with large pieces of concrete. Lu-gones took the stand and testified in that regard.

Count I of the indictment charged Lu-gones with aggravated battery of Muniz with a deadly weapon. For this count, the verdict form listed the lesser-included offense of simple battery. Count II of the indictment charged Lugones with attempted second-degree murder of Gonzalez either with a deadly weapon or during an aggravated battery. For this count, the verdict form listed the lesser-included offenses of attempted manslaughter, aggravated battery with a deadly weapon, and simple battery.

Regarding attempted manslaughter, the State proposed that the jury be given the standard jury instruction at the time, which stated, emphasis added, that “[t]o prove the crime of attempted manslaughter of a lesser-included offense in Count II, the State must prove the following element beyond a reasonable doubt ... Abel Lu-gones committed an act or procured the commission of an act which was intended, to cause the death of [the victim].” Lu-gones objected to this instruction on the basis that intent to kill is not an element of attempted manslaughter. The court nevertheless gave the instruction to the jury.

The jury convicted Lugones only of the lesser-included offense of aggravated battery with a deadly weapon. He was acquitted of all other charges. The trial court sentenced him to twelve years in prison. This appeal followed.

ANALYSIS

The first issue is whether the use of the standard jury instruction on attempted manslaughter was reversible error. It was. In the first place, the standard jury instruction was wrong. Intent to kill is not an element of attempted manslaughter. See § 782.07, Fla. Stat. (2010). The Florida Supreme Court has already identified this error and ordered that the standard jury instruction be corrected on this point. In re Standard Jury Instructions In Criminal Cases — Instruction 6.6, 132 So.3d 1124 (Fla.2014).

The second issue is whether the trial court’s mistake of giving the wrong jury instruction constituted reversible error. Because Lugones timely objected to the instruction, the State has the high burden of proving that the error was harmless. Barnes v. State, 108 So.3d 700, 703 (Fla. 1st DCA 2013) (“Where a trial court erroneously fails to give a requested special instruction that it should have given, and the requesting party makes a contemporaneous objection, the State has the burden, as the beneficiary of the error, to prove beyond a reasonable doubt that it was harmless error not to give the instruction.”); see also State v. DiGuilio, 491 So.2d 1129,1135 (Fla.1986) (“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.”). The State cannot meet this high burden in these facts.

The Supreme Court has already held that giving this erroneous jury instruction on attempted manslaughter in these circumstances constitutes fundamental error. Williams v. State, 123 So.3d 23, 24 (Fla.2013) (“[GJiving the standard jury instruction on attempted manslaughter by act— which also requires the jury to find the defendant committed an act intended to cause death— ... constitutes fundamental error where the defendant is convicted of an offense not more than one step removed from attempted manslaughter.”); Perez v. State, 137 So.3d 1121 (Fla. 3d DCA 2014). Obviously, a fundamental error is not harmless. Therefore, giving the wrong instruction was reversible error. Id.

Reversed and remanded for a new trial.