author: THOMAS, J.

text:
    William NETTING, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1480.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.

      William Netting, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING, CLARIFICATION AND CERTIFICATION

THOMAS, J.

We deny Appellant’s motion for rehearing, clarification, and certification, but withdraw our opinion dated July 11, 2013, and substitute the following in its place.

This case involves Appellant’s assertion that he was provided ineffective assistance of collateral counsel. In his claim, Appellant relies on the recent United States Supreme Court decision in Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). To appropriately frame, the issue here and provide necessary context, we provide the following facts and procedural history.

Facts and Procedural History

In- 2008, following a jury trial, Appellant was found guilty of a robbery committed on October 6, 2006, in which he punched the female victim in the face, knocked her to the ground and kicked her, to take her purse in a grocery store parking lot. The victim sustained serious physical injuries and emotional trauma from the robbery, including panic attacks. She testified at a sentencing hearing of the co-defendant that the trauma led her to resign a job she had held for 26 years, as she now was afraid to travel alone.

The evidence at trial established that Appellant and a co-defendant pulled their white van behind the victim’s car, blocking her in, while Appellant, the passenger in the van, asked the victim for directions. Appellant was wearing a hat with a college logo and holding a map. As the victim was attempting to give him directions, Appellant lunged at the victim, punched her in the face, knocking her to the ground, while he attempted to take her purse. Appellant dragged the victim for some distance and pulled her hair from her scalp in his attempt to force the victim to release her purse. The victim finally released her purse, and Appellant ran over to the driver’s door, hanging on to the door window, while the van drove away.

The victim memorized the van’s tag number. In addition, during the robbery, Appellant dropped the map and his hat with the college logo. Appellant’s DNA was later identified on this hat.

A witness who was attempting to park during the robbery pulled up behind the white van. The witness saw two men in the van, and when it moved, the witness drove to another area. When the witness got out of her car, she heard a woman screaming from the area of the white van. The witness ran toward the sound and saw a man attacking the victim. As the van pulled away, the victim screamed out the van’s tag number. The witness went to the store for help and assisted the victim. After the robbery, this witness identified the driver of thé white van, but not the passenger.

The victim sustained injuries, including a cut knee, broken bone, swollen lip, and hair torn away from her head.

Appellant was arrested on the night of the robbery oh unrelated charges. The arresting officer put Appellant in the back seat of his police car, which had never held an arrestee before, having been assigned to the officer only two days earlier. The officer testified he checked the back seat before placing Appellant there; he checked the back seat again after Appellant was taken from the car, and discovered the victim’s credit cards, gift certificates and other papers tucked under the floorboard of the seat.

An investigating detective testified that the victim’s purse was found at an apartment where Appellant and his co-defendant were visiting and where the co-defendant was arrested. Several of the victim’s belongings were found in the co-defendant’s wallet and also in the possession of the apartment’s resident.

At trial, identification was the only disputed issue. The victim identified Appellant, although at her first identification to police she was not “100 per cent” sure, but was “75 per cent” sure. As noted, the jury convicted Appellant of robbery. This court affirmed his conviction and sentence on direct appeal. Netting v. State, 4 So.3d 1227 (Fla. 1st DCA 2009) (table opinion).

In 2010, Appellant filed his first post-conviction motion pursuant to Florida Rule of Criminal Procedure 8.850. Appellant, through appointed posteonviction counsel, presented “18 arguments in support of finding [appointed] trial counsel ... ineffective.” These arguments essentially claimed that trial counsel was ineffective in establishing Appellant’s “actual innocence” in numerous ways: trial counsel failed to call alibi witnesses; failed to preserve arguments regarding the victim’s inaccurate description to a police officer; failed to suppress the victim’s pre-trial identifications of Appellant; failed to suppress evidence of the victim’s credit cards that Appellant left in the patrol car after his arrest on unrelated charges; failed to object to the State’s “prevarications” during opening argument and trial; failed to elicit prior inconsistent statements of the victim and the other witness who identified Appellant’s co-defendant; and other related failings.

After the evidentiary hearing, the trial court denied the motion for postconviction relief. Appellant’s postconviction counsel appealed this denial, raising 13 issues on appeal. On September 10, 2012, this court affirmed the trial court’s denial of postcon-viction relief, and the mandate issued on September 27, 2012. Netting v. State, 2012 WL 3930424 (Fla. 1st DCA Sept.10, 2012).

Less than three months later, on December 5, 2012, Appellant filed his second rule 3.850 motion in the trial court, and an amended motion, raising 13 claims of ineffective assistance of postconviction counsel, premised upon the United States Supreme Court’s opinion in Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). On February 28, 2013, the lower court summarily denied the motion. This appeal follows.

In addition, on August 23, 2013, this court denied Appellant’s petition for ineffective assistance of appellate counsel. Netting v. State, 119 So.3d 558 (Fla. 1st DCA 2013).

The issues surrounding Appellant’s conviction have thus been litigated for seven years, involving seven judicial proceedings in state courts, including 1) a jury trial; 2) a direct appeal from that jury trial; 3) a postconviction motion in the trial court challenging the effectiveness of appointed trial counsel; 4) a direct appeal of the denial of that postconviction motion in this court; 5) a second motion for post-conviction relief in the trial court, challenging the effectiveness of Appellant’s appointed postconviction attorney, based on Martinez; 6) a petition alleging ineffective assistance of appellate counsel; and now, 7) a direct appeal of the denial of that second postconviction motion claiming ineffective assistance of postconviction counsel based on Martinez.

Analysis

These collateral proceedings impose a burden on the state’s judiciary and its limited public resources and, of course, affect the ability of other litigants with legitimate disputes from obtaining prompt judicial resolutions of them claims. Successive collateral claims may be summarily denied in most instances under Florida Rule of Criminal Procedure 3.850(h)(2): “A second or successive motion is an extraordinary pleading. Accordingly, a court may dismiss a second or successive motion if the court finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the defendant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure....” But, as here, even though such claims may be summarily denied, the consideration and denial of those claims requires the judiciary to expend time and resources to act on successive motions.

We write to note that Appellant’s current claim had legal merit under Martinez, he would be entitled to yet another legal proceeding in the trial court to challenge the effectiveness of his first postconviction counsel. Should that proceeding prove unsuccessful, Appellant would no doubt seek review of that postconviction proceeding in this court. Thus, under Appellant’s argument, he would be entitled to a total of nine judicial proceedings in state court, including his original jury trial.

Because we find Appellant’s current claim fails as a matter of law, however, we affirm the trial court’s summary denial of relief, as there is no entitlement to the effective assistance of postconviction counsel. Ineffective assistance of postcon-viction counsel is not a cognizable claim in Florida, because there is no constitutional entitlement to the appointment of postcon-viction counsel, as held in Kokal v. State, 901 So.2d 766, 778 (Fla.2005): “Because a defendant does not have a constitutional right to counsel during postconviction proceedings, he clearly does not have a claim for ineffective postconviction representation.” The United States Supreme Court’s decision in Martinez does not change this conclusion, but it does merit further discussion.

The United States Supreme Court has long held that there is no constitutional entitlement to counsel in postconviction proceedings. See Murray v. Giarratano, 492 U.S. 1, 7-8, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (citing Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969)). This principle is also controlling in Florida law, which provides that “there is no absolute right to counsel in post-conviction relief proceedings” and sets forth criteria to guide a postconviction court’s discretion in considering whether the appointment of counsel may become necessary when a colorable claim is presented. Graham v. State, 372 So.2d 1363, 1365-66 (Fla.1979).

The United States Supreme Court did not reverse this settled precedent in Martinez. In fact, by its own express and repeated assertions in the analysis of Martinez, the Court declined to address the asserted constitutional right to effective assistance of postconviction counsel, as it was not necessary to a determination of that case. From the outset of that opinion, the Court stated that “[w]hile petitioner frames the question in this case as a constitutional one [concerning his right to an effective attorney in his collateral proceeding], a more narrow, but still disposi-tive, formulation is whether a federal habe-as court may excuse a procedural default of an ineffective assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review proceeding.” Martinez, 132 S.Ct. at 1313.

In Martinez, the defendant had been barred from raising claims of ineffective assistance of counsel in a federal habeas proceeding due to the procedural default rule, which prevents a federal court from considering the merits of claims that were barred in state court based upon a well-established procedural rule. 132 S.Ct. at 1314. To circumvent this bar, the defendant in Martinez argued that his attorney in his initial collateral review proceedings provided ineffective assistance in failing to raise trial counsel’s ineffectiveness. Id. He argued that this failure established cause to except him from the application of the procedural default rule and permit him to pursue federal habeas relief. Id.

Although the defendant in Martinez framed the issue in terms of whether there was a constitutional right to effective assistance of counsel in collateral proceedings, the Supreme Court narrowed the issue to the following: whether counsel’s failures in an initial-review collateral proceeding, which provided a defendant’s first opportunity to raise claims of ineffective assistance of trial counsel, could provide an excuse to a procedural bar, and thus allow ineffective assistance of trial counsel claims to be raised in federal court. Id. at 1313. The Supreme Court thus disavowed any intention of creating a right to assistance of counsel in collateral proceedings. Id. at 1319. Consistent with this reasoning, the Court ultimately concluded that ineffective assistance of collateral counsel could serve as cause to permit a defendant to pursue collateral claims in a federal habeas proceeding, despite being otherwise barred by the procedural default rule. 132 S.Ct. at 1320.

In light of the narrow holding in Martinez, the Florida Supreme Court has held that Martinez did not create a constitutional claim of ineffective assistance of postconviction counsel. Gore v. State, 91 So.3d 769, 778 (Fla.2012). The court observed that the U.S. Supreme Court had declined to address the existence of a constitutional right to postconviction counsel, concluding that “Martinez is directed towards federal habeas proceedings and is designed and intended to address issues that arise in that context.” Id. Further, the Florida Supreme Court has twice reaffirmed this analysis with reference to the reasoning in Gore. See Howell v. State, 109 So.3d 763, 774 (Fla.2013); Mann v. State, 112 So.3d 1158, 1164 (Fla.2013).

Given this authority, Florida law does not recognize a right to the effective assistance of postconviction counsel, and there is no binding federal precedent to the contrary. Therefore, Appellant’s claims were properly denied as a matter of law, and the trial court’s decision is affirmed.

AFFIRMED.

ROWE and SWANSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gregory JUNKIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5356.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.
    Rehearing Denied Jan. 15, 2014.
    Gregory Junkin, 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.

THOMAS, MARSTILLER, and RAY, JJ., concur.


author: PALMER, J.

text:
    Scott Brian WEIAND, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-643.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Scott Weiand, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Scott Brian Weiand (defendant) appeals the trial court’s order denying his motion for post-conviction relief, filed pursuant to rules 3.850 and 3.800(a) of the Florida Rules of Criminal Procedure. Determining that the defendant’s sentences of life imprisonment without parole on his kidnapping and robbery convictions are illegal, we reverse the sentences.

In 1988, the defendant pled guilty, in five separate cases, to crimes he committed when he was 17-years old. Pursuant to a negotiated plea agreement, on the homicide conviction, the defendant was sentenced to a term of life in prison with the possibility of parole after serving a mandatory minimum of 25 years, and on the kidnapping and robbery convictions he was sentenced to concurrent terms of life in prison to be served consecutive to the homicide sentence.

Fourteen years later, in 2012, the defendant filed a motion seeking post-conviction relief alleging five claims for relief. The trial court entered an order denying the motion without conducting a hearing thereon. This appeal followed.

The defendant challenges the trial court’s summary denial of all five of his claims for relief. We conclude that only one of the challenges possesses merit.

In that regard, the defendant challenges the trial court’s ruling rejecting his claim that his life sentences on his non-homicide convictions are illegal under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The trial court held that, “[u]nder the express language of Graham, because defendant was sentenced on a homicide at the same time that he was sentenced to life in prison for non-homicide offenses, his sentence does not violate the Eighth Amendment. Pursuant to Graham, when at least one offense is a homicide offense, there is no Eighth Amendment prohibition to sentencing a juvenile to life imprisonment for non-homicide offense at the same time.” This reasoning is supported by Lawton v. State, 109 So.3d 825 (Fla. 3d DCA 2013) and Starks v. State, 128 So.3d 91, 2013 WL 5225311 (Fla. 2d DCA Sept. 18, 2013).

However, in Johnson v. State, — So.3d -, 2013 WL 1809685, 38 Fla. L. Weekly D953 (Fla. 1st DCA Apr. 30, 2013), the First District concluded that there was no exception in Graham for juvenile offenders who commit both homicide and non-homicide offenses. Accord Jackson v. State, — So.3d -, 2013 WL 3013582, 38 Fla. L. Weekly 1334 (Fla. 1st DCA June 18, 2013). We agree with the reasoning in Johnson that, in Graham, the Supreme Court created a bright-line rule, holding that a defendant who was under eighteen when his non-homicide offense was committed cannot be sentenced to life without parole.

Accordingly, we reverse the trial court’s denial of this claim for relief, and remand for re-sentencing on the non-homicide offenses. In all other respects, we affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA and EVANDER, JJ„ concur.

      . At the time the defendant committed the offense, anyone convicted of a non-capital felony was not eligible for parole, but capital felons were eligible for parole. Dolan v. State, 618 So.2d 271, 272 (Fla. 2d DCA 1993).

      . Florida courts have interpreted Graham to apply retroactively. See St. Val v. State, 107 So.3d 553, 554 (Fla. 4th DCA 2013); Manuel v. State, 48 So.3d 94 (Fla. 2d DCA 2010).


text:
    Sharron D. DESHAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2636.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2013.
    Rehearing Denied Jan. 9, 2014.

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

AFFIRMED. See Martinez v. State, 981 So.2d 449, 456 (Fla.2008) (erroneous self-defense instruction did not constitute fundamental error where self-defense was not defendant’s sole, or even primary, defense strategy and self-defense claim was extremely weak); see also Morgan v. State, 127 So.3d 708 (Fla. 5th DCA 2013); Cancel v. State, 985 So.2d 1127 (Fla. 5th DCA 2008).

GRIFFIN, EVANDER and COHEN, JJ., concur.


author: CASANUEVA, Judge.

text:
    Samuel Lee HILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3476.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2013.

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

In this appeal of his judgment and sentence for attempted armed robbery, Samuel Lee Hillman argues that the trial court erred in failing to advise him that he had a right to represent himself after he informed the court that he did not want his attorney to represent him during trial. We conclude that the trial court was not obligated to inform Mr. Hillman of his right to represent himself and affirm.

The day before his trial, Mr. Hillman informed the trial court that he did not want his attorney, Richard Strickland, to represent him. Mr. Hillman told the court that “[w]e just don’t see eye-to-eye on it.” He also stated, “I don’t get along with him. I think he’s against me, and he’s not representing me the way I feel as though he should.” Mr. Hillman also alleged generally that Mr. Strickland was not competent to represent him. Mr. Hill-man contends that after the trial court determined that he did not have a legitimate complaint against his attorney, the court was required to advise him that he had a right to represent himself during the trial.

We first note that, although a trial court must conduct a preliminary Nelson inquiry when a defendant asks to discharge his attorney, “there is no abuse of discretion in failing to conduct a further inquiry where the defendant’s dissatisfaction with counsel is articulated in terms of general complaints which do not suggest ineffective assistance of counsel.” Tucker v. State, 754 So.2d 89, 92 (Fla. 2d DCA 2000); see also Kearse v. State, 605 So.2d 534, 536 (Fla. 1st DCA 1992) (“In deciding whether a trial court conducted an appropriate Nelson inquiry, appellate courts apply the review standard of abuse of discretion.”). In the present case, Mr. Hillman made very general complaints about his attorney and he made no specific allegations pertaining to the attorney’s competence. See Augsberger v. State, 655 So.2d 1202, 1204 (Fla. 2d DCA 1995) (“[Appellant’s unarticulated belief that counsel was not ‘serving’ him properly was nothing more than an expression of general loss of confidence or trust which, standing alone, does not require withdrawal of counsel.”). Therefore, the trial court was not required to inquire further before denying Mr. Hill-man’s request.

Further, we note that previous opinions of this court have held that if a defendant continues to request to discharge his attorney after the trial court has determined that the attorney is not rendering ineffective assistance, the defendant must be informed that he is not entitled to another attorney and that he would have to represent himself. See Montgomery v. State, 1 So.3d 1228, 1230 (Fla. 2d DCA 2009) (holding that where “there is no reasonable cause to believe effective assistance is not being rendered and the defendant still wishes to discharge counsel, the trial court must make clear to the defendant that there is no entitlement to court-appointed substitute counsel and that the defendant will have to represent himself or herself’); Reddick v. State, 636 So.2d 176, 177 (Fla. 2d DCA 1994) (“If the court finds that the defendant’s complaints are meritless, then the trial court has the duty to advise the defendant that the court will not appoint substitute counsel and that the defendant would be exercising his right to self-representation if the court grants the request to discharge his counsel.”).

However, in State v. Craft, 685 So.2d 1292, 1295 (Fla.1996) (citing Watts v. State, 593 So.2d 198, 203 (Fla.1992)), the Florida Supreme Court noted that where the defendant does not make an unequivocal request for self-representation, the trial court does not have an obligation to inform the defendant of his right to self-representation or to conduct a Faretta hearing. See Blake v. State, 972 So.2d 839, 845-46 (Fla.2007) (“A motion to discharge counsel does not automatically require a Faretta inquiry or notice of the right to self-representation.”); Augsberger, 655 So.2d at 1205 (concluding that where appellant did not make unequivocal request for self-representation, which was a necessary prerequisite for a Faretta examination, trial court was not required to inform appellant of his right to self-representation). In Craft, the appellant filed a pro se motion asking the court to appoint new trial counsel, alleging that his attorney was not representing him properly. 685 So.2d at 1294. The trial court conducted a hearing on the motion, concluded that the appellant’s allegations were legally insufficient and meritless, and denied the motion. Id. At the beginning of jury selection, the appellant told the court that he refused to go to trial with his attorney and the court informed him that the issue had been decided and that the appellant was going to trial with his attorney. Id. The appellant refused to participate in the jury selection process and filed a motion to act as co-counsel. Id. at 1294-95. The trial court explained to the appellant that his attorney could not act as co-counsel in the case and the attorney stated that the motion was not a motion for self-representation. Id. at 1295. The Florida Supreme Court held that Nelson did not require “the trial court to inform a defendant of his or her right to self-representation after the court denies the defendant’s motion to discharge counsel based on incompetence.” Id. We similarly conclude that in the present case, the trial court was not required to inform Mr. Hillman of his right to self-representation after denying his motion to discharge his attorney.

Accordingly, Mr. Hillman’s judgment and sentence are affirmed.

ALTENBERND and BLACK, JJ„ Concur.

      . Mr. Hillman waived his right to a jury trial.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: SILBERMAN, Judge.

text:
    Jorge Alberto NUNEZ-LEAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5948.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2013.
    Jorge Alberto Nunez-Leal, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Jorge Alberto Nunez-Leal appeals a final order, issued after evidentiary hearing, that denies his motion for postconviction relief on the basis that the motion is untimely and that the exception under Florida Rule of Criminal Procedure 3.850(b)(3) does not apply. Because Nunez-Leal was deprived of the opportunity to testify at the evidentiary hearing in violation of his right to due process, we reverse the order and remand for an evidentiary hearing at which Nunez-Leal has an opportunity to testify.

On remand from Nunez-Leal v. State, 100 So.3d 66 (Fla. 2d DCA 2011), the postconviction court conducted a hearing on September 12, 2012, at which Nunez-Leal was represented by attorney Melody Dietsch. The only issue was one of fact regarding whether prior counsel, Bryant Camareno, was retained to file a rule 3.850 motion and neglected to file the motion. Nunez-Leal submitted two letters into evidence, and Camareno testified that he never agreed to file a rule 3.850 motion. The postconviction court stated that it would review the transcript of a hearing held in 2009 and set a status hearing for October 12, 2012.

Before the hearing of September 12, 2012, concluded, Dietsch inquired about whether the postconviction court wanted Nunez-Leal to stay or to “ship back out.” The postconviction court told Dietsch that it was up to her, and she stated that “we should probably keep him here, just in case we need testimony.” The postconviction court agreed. At the October 12, 2012, hearing, Nunez-Leal was not present, and the parties presented argument to the court. The court found the rule 3.850 motion to be time barred.

On appeal Nunez-Leal correctly argues that he was denied due process by his absence from the second hearing which deprived him of the opportunity to testify on the material, factual issue before the postconviction court. See Bruce v. State, 99 So.3d 597, 598 (Fla. 2d DCA 2012). “Due process requires ‘meaningful access to the judicial process’ in postconviction proceedings.” Id. (quoting Kokal v. State, 901 So.2d 766, 778 (Fla.2005)). In Bruce, the postconviction court held an evidentia-ry hearing at which Bruce was represented by counsel. Id. Two witnesses testified, and then the hearing was continued. Bruce had not testified at that hearing. It was determined that Bruce would be kept in the local jail so that he would be available for the second hearing. However, Bruce was not transported to the second hearing. At the second hearing, the prosecutor mistakenly advised the court that Bruce had already testified, and Bruce’s counsel did not correct the misstatement.

This court determined that Bruce’s right to due process was violated because he was deprived of the opportunity to testify in support of his postconviction claim. Id. Because the due process violation was basic to the judicial decision on review, the violation constituted fundamental error. Id.

Similarly, Nunez-Leal was present at the first hearing with counsel but did not testify before the court decided to continue the hearing to allow it to read a transcript of an earlier hearing. It was discussed that Nunez-Leal would stay in the local jail in case he was needed for testimony at the continued hearing set for October 12, 2012. Nunez-Leal was not present for the continued hearing, and the postconviction court, relying in part on Camareno’s testimony, ruled that the exception in rule 3.850(b)(3) did not apply to Nunez-Leal’s motion. Because Nunez-Leal did not have the opportunity to testify on an issue that was basic to the judicial decision on review, the error was fundamental. See id.

Therefore, we reverse the postconviction court’s order and remand for an evidentia-ry hearing at which Nunez-Leal has the opportunity to testify regarding the issue of whether Camareno was retained to file a rule 3.850 motion and, through neglect, failed to file the motion.

Reversed and remanded.

ALTENBERND and LaROSE, JJ„ Concur.


text:
    ANGELS DIAGNOSTIC GROUP, INC., etc., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, etc., and State Farm Fire and Casualty Company, etc., Appellees.
    No. 3D13-2078.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2013.

      Marlene S. Reiss, Miami, for appellant.
    Akerman Senterfitt, and Nancy A. Cop-perthwaite and Marcy Levine Aldrich, Miami, for appellees.
    Before LAGOA, EMAS and LOGUE, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Appellant, Angels Diagnostic Group, Inc. (“Angels”), appeals from a Final Default Judgment in favor of Appellees, State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company (collectively, “State Farm”), and from an order denying Angels’s motion for rehearing. Based upon State Farm’s commendable confession of error, and our own independent review of the record, we conclude that the trial court erred in failing to grant Angels’s motion for rehearing and in denying its motion to set aside the Final Default Judgment.

We reverse the trial court’s order denying Angels’s motion for rehearing and remand with instructions to set aside the Final Default Judgment and for further proceedings consistent with this opinion.

REVERSED and REMANDED.


author: WALLIS, J.

text:
    Donald R. HODGE, Appellant/Cross-Appellee, v. Ann B. HODGE, Appellee/Cross-Appellant.
    No. 5D12-3815.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2013.
    Rehearing Denied Jan. 9, 2014.

      Julie Glocker-Pierce, Indiatlantic, for Appellant/Cross-Appellee.
    Elizabeth Siano Harris of Law Offices of Elizabeth Siano Harris, P. A., Titusville, for Appellee/Cross-Appellant.
   WALLIS, J.

Donald R. Hodge (“Appellant”) appeals the entry of an Amended Final Judgment of Dissolution of Marriage (“Amended Final Judgment”) awarding Ann B. Hodge (“Appellee”) $2,500 per month in permanent periodic alimony and distributing the marital property. Appellant argues that the lower court erred by improperly calculating the amount of alimony due. We affirm in part, reverse in part, and remand the Amended Final Judgment for revision.

Appellant first argues that the lower court improperly calculated his rental income by failing to subtract expenses associated with the upkeep of a rental property (“Old Dominion property”). Appellant next argues that the lower court miscalculated Appellee’s income by failing to attribute investment income, divided under the equitable distribution scheme, to Appellee rather than Appellant. Finally, Appellant argues that the lower court improperly calculated the pre-marital portion of his equity in the Old Dominion property.

“The appropriate standard of review in a dissolution of marriage is abuse of discretion.” Matajek v. Skowronska, 927 So.2d 981, 985 (Fla. 5th DCA 2006) (citing Johnson v. Johnson, 847 So.2d 1157, 1158 (Fla. 5th DCA 2003)). “The trial court abuses its discretion only where no reasonable person would take the view it adopts based upon the evidence before it.” Id. (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)). “This court must determine whether the trial court’s order is supported by substantial, competent evidence.” Id. (citing Johnson, 847 So.2d at 1158). “A trial court has considerable discretion in determining an award of alimony.” Engesser v. Engesser, 42 So.3d 249, 250 (Fla. 5th DCA 2010) (citing Canakaris, 382 So.2d at 1197).

Calculation of Rental Income

The findings contained in the Amended Final Judgment list Appellant’s monthly rental income from the Old Dominion property as $1,650. The trial court did not subtract any expenses associated with the operation of the Old Dominion property. Appellee gave trial testimony that the parties typically reserved half — or about $825 — of the rental payments for the payment of taxes, repairs, upkeep and maintenance.

A trial court’s determination of whether portions of payments from income-producing assets — including rental payments — constitute income for purposes of calculating alimony should be conducted on a case-by-case basis, and not overturned absent a showing that no competent evidence supports the determination. Zold v. Zold, 911 So.2d 1222, 1232-33 (Fla.2005); see also McNamara v. McNamara, 40 So.3d 78, 82 (Fla. 5th DCA 2010) (citing Waton v. Waton, 887 So.2d 419, 422 (Fla. 4th DCA 2004)). The supreme court clarified in Zold that the burden of proof in these types of cases is on the party claiming that a portion of payments should be excluded from alimony calculations. 911 So.2d at 1234. Thus, Appellant has the burden of proof to demonstrate that at least $825 of the $1,650 rent payments are used to maintain the Old Dominion property.

In Betancourt v. Betancourt, 50 So.3d 768 (Fla. 2d DCA 2010), the second district held that “the trial court erred in adding the gross rental income from the [rental property] to the Husband’s employment income without a corresponding deduction for the mortgage and utility expenses.” 50 So.3d at 771 (citing Berges v. Berges, 871 So.2d 919, 922 (Fla. 3d DCA 2004)). As in the present case, the appellant in Betanc-ourt did not itemize the income and upkeep expenses on his financial affidavit. Id. at 770. However, the appellant in Be-tancourt “testified in substantial detail at the final hearing concerning the income and expenses” of the rental property. Id. at 771. Appellee argues that Appellant did not provide comparable detail, but fails to consider her own testimony regarding the net rental income from the property.

In the instant case, we do not believe the lower court’s calculation of income from the Old Dominion property reflects that the monthly maintenance expenses exhaust half of the rental payments. Consequently, we do not find there is competent, substantial evidence to support $1,650 in rental income applied as monthly income to Appellant. We remand for the trial court to reduce the rental income by the ordinary and reasonable expenses.

Calculation of Investment Income

The Amended Final Judgment distributed the following assets equally between Appellant and Appellee and found that each asset generated the following monthly returns: (1) CSC Ameriprise Rollover, found to generate returns of $1,692 per month; (2) TIAA-CREF account, found to generate returns of $1,658 per month; (3) Dreyfuss liquid assets, found to generate returns of $160 per month; (4) TIAA-CREF Annuity, found to generate returns of $138.16 per month; and (5) Northwestern life insurance policy dividends, found to generate returns of $465 per month. Additionally, the Amended Final Judgment distributed other intangible, income-earning assets held in Appel-lee’s name but did not include income from those sources in its calculations. The Amended Final Judgment does not indicate that the trial court’s calculation of the Appellee’s income included any investment income attributable to the assets divided in the equitable distribution scheme.

Failing to attribute the income from property being distributed to that party when determining need and ability to pay is reversible error. See Acker v. Acker, 904 So.2d 384, 386-87 (Fla.2005). The supreme court held that section 61.08(2), Florida Statutes, requires a trial court to consider all sources of income— including equitably — distributed assets-when determining alimony awards. Id. at 388-89 (citing Lauro v. Lauro, 757 So.2d 523, 524-25 (Fla. 4th DCA 2000)). In the present case, the trial court failed to consider how the equitable distribution scheme disposed of income-earning assets.

Appellant argued below that the parties’ incomes after equitable distribution were significantly different than the estimates employed by the lower court’s award of $2,500 per month in alimony. In the Amended Final Judgment, the lower court stated that “[i]t is anticipated going forward, based upon the past years, that the [Appellant] will have monthly net income of over $9,000.” The lower court’s calculation of Appellant’s monthly income results in an estimate of $9,627.72, including in full those assets later split evenly with Appel-lee. The lower court also failed to include equitably-distributed property in its estimate of Appellee’s income.

After reviewing the Amended Final Judgment, we conclude that the lower court’s conclusions are not based on competent, substantial evidence. Considering that the lower court’s award of $2,500 in monthly alimony was based on its estimate that Appellant’s monthly income will be “over $9,000,” the validity of that award is questionable. In light of Acker, both parties’ income estimates must be revised to reflect the equitable distribution of income-earning assets. We reverse the lower court’s findings with regard to the calculation of both parties’ income and remand for a determination of an appropriate alimony award.

Calculation of Premarital Equity and Passive Appreciation

Appellant owned significant equity in the Old Dominion property at the time of the marriage. The property was encumbered with a mortgage roughly equal to one-third of the appraised value. Trial testimony established that the parties used marital funds to repay the mortgage and to make minor improvements. Appellee testified that she expended considerable effort to show and rent the property to tenants. The Old Dominion property increased greatly in value between the time of marriage and the time of divorce. The lower court awarded Appellee one-half of the total increase in value after finding that the increase was due to both Appel-lee’s active efforts and passive appreciation. In addition, the court justified the award as a method of “equalizing the assets of the parties.” In making the award, the trial court was asked to determine and allocate the passive appreciation of the rental property. The question before us is whether the lower court erred in calculating Appellant’s premarital portion of the equity in the Old Dominion property.

Although the lower court’s factual findings with regard to the parties’ efforts are subject to an abuse of discretion review, the court’s calculation of passive appreciation is subject to a de novo review. Kaaa v. Kaaa, 58 So.3d 867, 869 (Fla.2010). The Florida Supreme Court laid out a five-step analysis in Kaaa for calculating the allocation of passive appreciation in value:

We note that the trial court’s task in this regard is an extremely fact-intensive one, and there are certain steps that each court must take. First, the court must determine the overall current fair market value of the home. Second, the court must determine whether there has been a passive appreciation in the home’s value. Third, the court must determine whether the passive appreciation is a marital asset under section 61.075(5)(a)(2). This step must include findings of fact by the trial court that marital funds were used to pay the mortgage and that the nonowner spouse made contributions to the property. Moreover, the trial court must determine to what extent the contributions of the nonowner spouse affected the appreciation of the property. Fourth, the trial court must determine the value of the passive appreciation that accrued during the marriage and is subject to equitable distribution. Fifth, after the court determines the value of the passive appreciation to be equitably distributed, the court’s next step is to determine how the value is allocated.

Id. at 872. The lower court’s failure to follow the analysis listed in Kaaa was error. The equity Appellant owned before the marriage entitles him to a nonmarital portion of any passive increase in value. The lower court could find that some portion of the increase in value is attributable to Appellee’s active efforts and not merely to passive appreciation. However, the lower court’s goal of “equalizing the assets of the parties” by increasing the size of the marital equity in the Old Dominion property is not permitted by law. Weymouth v. Weymouth, 87 So.3d 30, 36 (Fla. 4th DCA 2012). Therefore, the lower court erred when it calculated Appellant’s nonmarital portion of the appreciation on the Old Dominion property. Accordingly, we remand the award of 50% of the passive appreciation of the Old Dominion property for reconsideration by the trial court consistent with the Kaaa analysis.

Because the lower court erred when it calculated Appellant’s monthly rental income from the Old Dominion property, both parties’ investment income in the alimony determination, and the nonmarital portion of the appreciation on the Old Dominion property, we affirm in part, reverse in part, and remand the Amended Final Judgment for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, REMANDED with Instructions.

ORFINGER and BERGER, JJ., concur.

      . In light of our ruling, and the resulting effect on the calculation of alimony, we do not find it necessary to address any of the other issues raised by Appellant on appeal.


text:
    Rufus SHIRLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4028.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2013.
    Rufus Shirley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013); Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012); see also Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012).

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


author: CLARK, J. ROWE, J.,

text:
    Michael Kenneth MOTES Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1097.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

In this appeal, Appellant claims the trial court erred in denying his motion to withdraw his plea. See Fla. R.Crim. P. 3.170(i). Appellant moved to withdraw his plea after sentencing. Therefore, he must show one of the grounds enumerated in Rule 9.140(b)(2) (A) (ii) (a)-(e) as well as a “manifest injustice.” Fla. R.App. P. 9.140(b)(2)(A)(ii)(b)-(c); Griffin v. State, 114 So.3d 890, 897 (Fla.2013). We review the trial court’s denial for abuse of discretion. Griffin, 114 So.3d at 897. We find the present circumstances constitute a manifest injustice and reverse the trial court’s denial.

Appellant’s plea form stated he was reserving the right to appeal the court’s pre-trial ruling he was competent to stand trial. However, his trial counsel was manifestly incorrect that Appellant could do so-this is not a dispositive ruling subject to reservation. During the plea colloquy, the court confirmed, “you are reserving your right to appeal the [cjourt’s pretrial ruling.” Consequently, counsel included a clause in a binding agreement, Appellant signed an agreement with that clause, and the trial court confirmed the clause’s existence and accepted the agreement which included it. The clause, however, was patently erroneous.

Plea bargains are contracts and are subject to the rules of contract law. Kingry v. State, 28 So.3d 173, 174 (Fla. 1st DCA 2010). Appellant was thus entitled to rely upon the written agreement, his counsel, and the court’s confirmation. See Carlisle v. State, 687 So.2d 929, 930 (Fla. 4th DCA 1997) (holding trial court reversibly erred in not permitting appellant to withdraw his plea where court erroneously stated appellant could appeal; motion was, in fact, not dispositive and “appellant was entitled to rely on the court’s statement”); see also State v. Cowart, 761 So.2d 1100, 1100-01 (Fla.2000) (reversing with instructions to permit defendant to withdraw his plea where trial court erroneously indicated defendant could not be sentenced pursuant to the Prison Releasee Reoffender Punishment Act). “When a negotiated plea agreement cannot be honored by the trial judge, the defendant may withdraw his plea and the trial court has an affirmative duty to so advise him.” Johnson v. State, 547 So.2d 238, 239 (Fla. 1st DCA 1989) (citing Goldberg v. State, 536 So.2d 364, 365 (Fla. 2d DCA 1988)).

While the dissent addresses Appellant’s possible subjective expectations or intentions in the addition of the erroneous reservation, these are of no import against a valid, written agreement. See Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957) (“The writing itself is the evidence of what [the parties] meant or intended by signing it. The test of the meaning and intention of the parties is the content of the written document.”); Bowen v. Taylor-Christensen, 98 So.3d 136, 140-41 (Fla. 5th DCA 2012) (“[Contracts are formed by objective acts, not subjective beliefs.”).

Therefore, when the court confirmed and accepted the agreement with an erroneous reservation as a part, it could not honor that agreement and Appellant was entitled to withdraw his plea. The trial court consequently abused its

discretion and should have permitted Appellant to withdraw his plea. We REVERSE.

SWANSON, J., concurs.

ROWE, J.,

dissenting.

I respectfully dissent. Because Appellant failed to demonstrate that a manifest injustice occurred, the trial court did not abuse its discretion in denying the motion to withdraw the plea after sentencing.

Appellant argues that he should have been permitted to withdraw his plea because his plea agreement was conditioned on his ability to challenge the trial court’s competency ruling, which he later learned was a non-appealable issue. Florida Rule of Criminal Procedure 3.170(0 allows for the withdrawal of a plea after sentencing only on the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii). A violation of the plea agreement is one of those enumerated grounds. Fla. R.App. P. 9.140(b)(2)(A)(ii)(b). However, a defendant who moves to withdraw his plea on grounds that the plea agreement was violated must also demonstrate that a manifest injustice occurred. State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003). Appellant failed to meet that burden here.

Appellant was charged with sexual battery with a firearm, burglary of dwelling with assault or battery, aggravated assault by threat, felony battery, violation of a domestic violence injunction, aggravated stalking, and contributing to the delinquency of a minor. Appellant’s counsel filed a notice of incompetency after an expert declared Appellant to be incompetent to stand trial. The trial court appointed two experts, who both determined that Appellant was competent to proceed. Based on these expert opinions, the trial court found that Appellant was competent to stand trial.

However, Appellant chose not to proceed to trial. Instead, Appellant entered into a plea agreement with the State where' the State agreed to drop the firearm portions of Appellant’s charges in exchange for Appellant entering a straight-up plea to the court. On the plea form, defense counsel wrote “Defendant reserves the right to appeal Court’s pre-trial ruling as to the Defendant’s competency.” During the plea colloquy, Appellant indicated that he understood the charges against him and the maximum penalties for those charges. Without further comment, the court noted that Appellant was reserving the right to appeal the court’s competency ruling. The court found that Appellant’s pleas were knowingly and voluntarily entered. Appellant was sentenced to a total of forty-five years’ imprisonment.

Following sentencing, Appellant moved to withdraw his plea. At the evidentiary hearing, Appellant testified that counsel told him that he would have the right to appeal the court’s competency ruling in the event that he did not obtain a favorable ruling from the court. Appellant admitted that he told his doctors during the competency evaluations that he did not “want to be labeled a nut.”

Appellant’s trial counsel testified that Appellant agreed to pursue the plea agreement because Appellant believed that the evidence against him was overwhelming and he did not want a jury to hear about the egregious acts that took place. Appellant also indicated to counsel that he did not want to put his wife and children through a jury trial. Counsel testified that Appellant never believed that he was incompetent and that Appellant actively participated in the development of his case. He testified that Appellant never specifically asked him to appeal the court’s competency ruling; Appellant only made a general request to file the appropriate notice. Counsel testified that it was his idea to attempt to reserve the right to appeal the competency ruling and that he did not discuss the reservation with Appellant before writing it into the plea agreement. Counsel asserted that Appellant was never concerned about the competency issue. He testified that Appellant was prepared to enter a plea before he inserted the provision reserving Appellant’s right to appeal the competency issue in the plea agreement.

After weighing the evidence and making credibility determinations, the trial court found that Appellant was willing to enter a plea before counsel inserted the provision into the plea agreement about the right to challenge the competency ruling. The court found that Appellant’s main concerns were not putting his family through a jury trial and removing the firearm enhancements from his charges. The court concluded that Appellant failed to establish that a manifest injustice occurred and denied the motion to withdraw Appellant’s plea.

Based on the record in this case, the trial court did not abuse its discretion. There is no support in the record for Appellant’s assertion that he would not have entered his plea had he known that he could not challenge the competency ruling. Rather, the record shows that Appellant decided to enter a plea because he was concerned about the overwhelming evidence against him and did not want to put his family through a jury trial. The court accepted as true counsel’s testimony that Appellant did not request the reservation of the right to challenge the competency ruling when he expressed a desire to enter his plea.

Moreover, had Appellant asserted that he was incompetent at the time he entered the plea, that claim would have provided a legally sufficient ground under rule 3.170(¿) for withdrawing his plea. Pacheco v. State, 114 So.3d 1107 (Fla. 2d DCA 2013). But Appellant does not argue that he was incompetent at the time he entered his plea. Rather, he argues only that his plea was involuntary because he was mi-sadvised about his right to appeal the competency ruling. Because rule 3.170(2) provides for relief where the defendant is incompetent at the time a plea is entered, the trial court correctly determined that Appellant failed to demonstrate that a manifest injustice occurred where Appellant was improperly advised that he could appeal the court’s competency ruling. The trial court’s denial of the motion to withdraw the plea should be affirmed.


text:
    Carneri Fred SHINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2839.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.

      Carneri Fred Shine, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren L. Brudnicki and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Carneri Fred Shine appeals the summary denial of his motion seeking postcon-viction relief brought pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, without comment, the postconviction court’s denial of seven of the Appellant’s nine claims. However, as to his claims that he was improperly habitualized as to counts II, III, and IV and that an illegal sentence was imposed as to count III, we reverse.

In the instant postconviction motion, the Appellant argued that he was improperly designated as a habitual felony offender (HFO) for the offenses of possession of cocaine with the intent to sell (count II), possession of cannabis with the intent to sell (count III), and possession of cocaine with the intent to sell within 200 feet of a public park (count IV). This claim has merit, as section 775.084(l)(a)(3), Florida Statutes (1999), does not permit habituali-zation for a felony “relating to the purchase or the possession of a controlled substance.” See Jones v. State, 988 So.2d 15 (Fla. 2d DCA 2008); Harris v. State, 695 So.2d 742 (Fla. 1st DCA 1996). Further, as the State concedes in its response to this Court’s Toler order, though the trial court indicated that this claim was barred by collateral estoppel, the documents attached to the order of denial do not demonstrate that this issue has been litigated and determined on the merits.

Additionally, the Appellant alleged that the trial court imposed a sentence in excess of the statutory maximum as to count III. The record reflects that a 20-year habitual sentence was imposed as to this offense. However, possession of cannabis with the intent to sell is a third-degree felony punishable by a sentence of up to five years in prison. See §§ 893.13(l)(a)(2); 775.082(3)(d), Fla. Stat. (1999). Even if the HFO enhancement applied, this would only permit a 10-year prison sentence. See § 775.084(4)(a)(3), Fla. Stat. (1999). Therefore, the Appellant’s sentence appears to be illegal. As the State concedes in its response, the trial court’s order did not directly address this claim and it is not refuted by the documents attached to the order.

Accordingly, we reverse the trial court’s order as to these claims and remand for further proceedings.

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

CLARK, WETHERELL, and RAY, JJ„ concur.

      . Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).


text:
    Daniel Ray DOTSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5107.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.

      Daniel Ray Dotson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. RApp. P. 9.141(c)(5)(A) (providing that in no case shall a petition for belated appeal be filed more than four years after the expiration of the time for filing the notice of appeal).

BENTON, PADOVANO, and RAY, JJ., concur.


author: SLEET, Judge.

text:
    Anthony PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5083.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2014.
    Howard L. Dimmig, II, Public Defender, and Anthony W. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Anthony Peterson challenges his judgment and sentences for leaving the scene of a crash involving death, vehicular homicide, and driving while license is suspended or revoked. On appeal, he argues that the trial court erred when it admitted the air bag control system report from his vehicle into evidence and denied his motion for judgment of acquittal. We affirm on all issues and write to address the admissibility of the air bag control system report.

The facts adduced at trial demonstrated that Peterson was intoxicated, exceeded the posted speed limit of 45 mph, ran a red light, and crashed into the victim’s vehicle., The State introduced, over Peterson’s objection, the air bag control system report from Peterson’s vehicle. Peterson argues that the computer-generated air bag control, system report was testimonial hearsay and that the trial court erred when it admitted the report into evidence. He argues that it violated the Confrontation Clause of the Sixth Amendment because he was precluded from confronting the computer and that the expert’s testimony regarding the information generated by a computer database was prejudicial hearsay testimony in violation of Peterson’s right to confront the witnesses against him.

This court applies a mixed standard of review in considering a trial court’s ruling on the admissibility of evidence over an objection based on the Confrontation Clause. Hernandez v. State, 946 So.2d 1270, 1277 (Fla. 2d DCA 2007). “The trial court’s determination of historical fact enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record.” Id. The trial court’s legal conclusions are reviewed de novo. Id.

In order for the Confrontation Clause to apply to the air bag control system report, the report must be deemed “testimonial” in character. State v. Belvin, 986 So.2d 516, 520 (Fla.2008). “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id. (quoting Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)). The United States Supreme Court has not completely defined “testimonial” but made it clear that, at a minimum, it applied “to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Card v. State, 927 So.2d 200, 202 (Fla. 5th DCA 2006) (quoting Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).

The report in this case does not fall under any of the examples of testimonial statements set forth in Crawford. However, Card, 927 So.2d at 203, and Pflieger v. State, 952 So.2d 1251 (Fla. 4th DCA 2007), offer some guidance. In Card, the Fifth District determined that the defendant’s driving record was not testimonial because it was not accusatory and did not describe specific criminal wrongdoing of the defendant. 927 So.2d at 203. Instead, “it merely representad] the objective result of a public records search.” Id. The court further held that “[a] driving record contains neither expressions of opinion nor conclusions requiring the exercise of discretion, and is not made or kept for law enforcement or trial purposes.” Id. Similarly, in Pflieger, the Fourth District determined that an annual inspection report of a breath testing instrument was not testimonial because “[d]ocuments establishing the existence or absence of some objective fact, rather than detailing the criminal wrongdoing of the defendant, are not ‘testimonial.’ ” 952 So.2d at 1254 (quoting Michels v. Commonwealth, 47 Va.App. 461, 624 S.E.2d 675, 678 (2006)).

Like the driving record in Card and the annual inspection report in Pflieger, the air bag control system report is not accusatory and does not describe any specific wrongdoing of Peterson. Instead, the report merely establishes the existence or absence of some objective fact, i.e., if and when the brakes were applied in Peterson’s car before the accident and the speed the car was traveling.

Peterson’s reliance on State v. Johnson, 982 So.2d 672 (Fla.2008), and Belvin, 986 So.2d 516, is misplaced because the cases are distinguishable from the instant case. In Johnson, the Florida Supreme Court held that a report prepared by an FDLE analyst, that established the illegal nature of the substances Johnson possessed, was admitted in violation of the Confrontation Clause because the analyst who prepared the report did not testify during the trial. 982 So.2d at 681. Likewise, in Belvin, the Florida Supreme Court held that a breath test affidavit in a DUI prosecution was testimonial and violated the Confrontation Clause because the person who prepared the report did not testify at trial. 986 So.2d at 521.

The State’s expert, James Hartwell, testified that he was trained in extracting the air bag control module from cars and trained in extracting the data from the modules. He also testified that he was trained to operate the software that generated the air bag control system report and noted that he was unable to input any information into the report or change any information on the report. Unlike in Johnson and Belvin, the person who printed the air bag control system report testified at trial. Furthermore, the reports in Johnson and Belvin were created by law enforcement to determine if the defendant committed a crime. Here, the air bag control system report contains objective data about the car seconds before the crash and does not contain any information suggesting Peterson committed a crime. As such, the Confrontation Clause is not invoked because the report is not testimonial.

Because the air bag control system report is not testimonial, the trial court did not err in admitting the report over a Confrontation Clause objection. Accordingly, we affirm.

Affirmed.

NORTHCUTT and LaROSE, JJ„ Concur.

      . The air bag control system is often referred to as the "black box” or "event data recorder.” Matos v. State, 899 So.2d 403, 405 (Fla. 4th DCA 2005).


author: VILLANTI, Judge.

text:
    Jurez Roshae WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2198.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2014.

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

In this Anders appeal after a trial, Jurez Roshae Williams seeks review of his conviction and sentence for one count of robbery. We affirm Williams’ conviction without further comment. However, because the sentence imposed on Williams is illegal as currently structured, we reverse the sentence and remand for resentencing.

Before trial, the State filed notices asserting that Williams qualified as both a habitual felony offender (HFO) under section 775.084(l)(a), Florida Statutes (2011), and a prison releasee reoffender (PRR) under section 775.082(9). At the sentencing hearing following Williams’ trial, the State introduced evidence that established that Williams qualified as both an HFO and a PRR, and it asked the trial court to designate Williams as both and impose sentence accordingly. After hearing from Williams, the trial court orally pronounced the following:

THE COURT: As to Count 1, Mr. Jurez [sic], you will be adjudicated guilty and sentenced as a habitual felony offender and a prison releasee reoffender, and I find that the State has proven, by a preponderance of the evidence, that the offense for which you are being sentenced today did occur within three years of your release from the State Correctional Facility, and additionally that the State has proven by a preponderance of the evidence that you have previously been convicted of two felonies, which would subject you to sentencing as a habitual felony offender.
As to Count 1, I will sentence you to 15 years in the Florida State Prison as a minimum mandatory, pursuant to prison releasee reoffender statutes followed by five years of probation....
MS. LUCAS: And, Your Honor, the five-year probation period, that is as a habitual felony offender?
THE COURT: It has to be, because the maximum penalty has to go up to 30 years, so yes.

The subsequent written sentence states that Williams is sentenced to fifteen years in prison followed by five years’ probation. It also states that Williams is “adjudicated a Habitual Felony Offender and has been sentenced to an extended term in accordance with the provisions of Section 775.084(4)(A), Florida Statutes.” It further provides that Williams is “sentenced as a prison releasee reoffender F.S. 775.082(8); Count 1: min/man 15 yrs.” Hence, both the oral pronouncement and the written sentence appear to impose a sentence on Williams of fifteen years in prison as both an HFO and a PRR, followed by five years’ probation as an HFO. However, such a sentence is illegal.

This court addressed the identical issue in Johnson v. State, 927 So.2d 251 (Fla. 2d DCA 2006). There, Johnson was sentenced on a robbery conviction to thirty years in prison as a habitual felony offender, to be suspended after fifteen years with the remainder to be served on probation. Id. at 251. The trial court also imposed a fifteen-year minimum mandatory sentence on Johnson as a PRR. Id. at 251-52. In concluding that this sentence was illegal, we explained:

In Grant [v. State, 770 So.2d 655 (Fla.2000) ], the defendant argued that his concurrent fifteen-year HFO and PRR sentences for sexual battery violated his double jeopardy rights. Id. at 657. The supreme court rejected this argument. Id. at 658. However, the supreme court concluded that the sentences violated the PRR [statute] because the HFO and PRR sentences were equal in length. Id. at 659. The supreme court observed that, under the PRR [statute], “ ‘[n]oth-ing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to [the HFO statute] or any other provision.’” Id. at 658 (citing § 775.082(8)(c), Fla. Stat. (1997), now § 775.082(9)(c)) (emphasis supplied). Consequently, concurrent HFO and PRR sentences for the same offense are permissible when the incarceration period of the HFO sentence exceeds the PRR sentence. Id. at 658-59.
The sentences in Grant involved equal periods of incarceration under the HFO and PRR. Grant’s reasoning is equally applicable to a true split sentence. We reiterate, section 775.082(9)(c) provides that “[n]othing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law....” Thus, if the incarceration portion of an HFO sentence does not exceed the PRR sentence, the sentences violate the PRR. See Grant, 770 So.2d at 659; Morales v. State, 901 So.2d 1032, 1033 (Fla. 2d DCA 2005).

Id. at 252 (underline emphasis added); see also Michel v. State, 935 So.2d 1228, 1229-30 (Fla. 5th DCA 2006) (holding that sentence of fifteen years as a PRR and fifteen years followed by ten years’ probation as an HFO was illegal because the incarcera-tive portions of the sentences were the same and stating that “a concurrent HFO sentence which imposes a period of incarceration equal to or less than the PRR mandatory minimum constitutes an illegal sentence”); cf. Sinclair v. State, 65 So.3d 573, 575 (Fla. 3d DCA 2011) (affirming sentence of twenty years as an HFO and concurrent fifteen years as a PRR because “the incarceration period of the HFO sentence exceeds the PRR sentence”).

Here, as in Johnson and Michel, the trial court imposed concurrent HFO and PRR sentences, and the incarcerative portions of the sentences are the same. Contrary to the assertions in the briefs to this court, nothing in either the oral pronouncement or the written sentence makes it “clear” that the fifteen-year prison sentence is to be served only as a PRR. Hence, we reverse Williams’ sentence and remand for resentencing. On remand, the trial court may again sentence Williams as an HFO and a PRR as long as the incar-cerative portions of the sentences are not the same.

Affirmed in part, reversed in part, and remanded for resentencing.

CASANUEVA and SILBERMAN, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: DAVIS, Chief Judge.

text:
    Frances YOUNG and her husband, Phillip Young, Appellants, v. NAPLES COMMUNITY HOSPITAL, INC.; Naples Radiologists, P.A.; Nighthawk Radiology Services, LLC; and Jason Grennan, M.D., Appellees.
    No. 2D12-3679.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2014.

      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; and Jeffrey R. Gavin of Jeffrey R. Garvin, P.A., Ft. Myers, for Appellants.
    Thomas A. Valdez and Martin L. Khoury of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Appellees Nighthawk Radiology Services, LLC, and Jason Grennan, M.D.
    No appearance for remaining Appellees.
   DAVIS, Chief Judge.

Frances Young and her husband, Phillip W. Young, challenge the final summary judgment entered by the trial court in favor of Nighthawk Radiology Services and Jason Grennan, M.D., in the Youngs’ medical malpractice action. We reverse and remand for further proceedings.

In their second amended complaint, the Youngs alleged that late on the evening of Friday, February 18, 2006, Mrs. Young was taken by ambulance to Naples Community Hospital (NCH) complaining of severe abdominal pain and vomiting. While still in the emergency room in the early morning hours of Saturday, February 19, 2006, several tests were run, including a CT scan. This scan was read at 3:36 a.m. by Dr. Grennan, who was physically located in Switzerland at the time. He then forwarded to the hospital staff his report indicating that the scan showed “unremarkable” results. However, based on the results of all the tests performed, Mrs. Young was admitted to the hospital. Because she continued to complain of abdominal pain, a magnetic resonance angiogram (MRA) was performed later that afternoon. The results of that test were received on the morning of Sunday, February 20, 2006, and showed a “filling defect in the superior mesenteric artery ... [e]m-boli suspected.” The CT scan originally reviewed by Dr. Grennan was then reevaluated by other personnel and revealed an “occlusion of the superior mesenteric artier [sic] by thrombus as well as embolic appearing thrombus in the aorta.” About an hour later, Mrs. Young underwent surgery to remove a blood clot from her superior mesenteric artery.

Mrs. Young was discharged from the hospital on April 12, 2006, following surgery and complications in the recovery process. As the Youngs investigated the circumstances of Mrs. Young’s hospitalization and treatment, their attorney filed for an automatic ninety-day extension of the statute of limitations in medical negligence actions as provided for by section 766.104(2), Florida Statutes (2007). On April 1, 2008, the Youngs gave notice of their intent to initiate a lawsuit to Naples Radiologists, the local provider of the hospital’s radiological services. Then, on June 17, 2008, they gave notice of that intent to Nighthawk Radiology, the company that provided nighttime radiological services for Naples Radiologists, and Dr. Grennan, an independent contractor with Nighthawk.

The Youngs filed suit on August 28, 2008, alleging medical malpractice on the parts of NCH, Naples Radiologists, Nighthawk, and Dr. Grennan. Specifically, the Youngs alleged below that the first report of the CT scan prepared by Dr. Grennan was in error and that this initial misreading of the scan was the cause of the complications Mrs. Young later suffered. The Youngs maintained that the error in reading the CT scan was an act of medical malpractice by Dr. Grennan, who was under contract with Nighthawk Radiology to provide these services to Naples Radiologists. That is, Naples Radiologists was the local provider of radiological services for NCH pursuant to an exclusive contract between Naples Radiologists and the hospital. Naples Radiologists also had a contractual relationship with Nighthawk Radiology, an independent limited liability corporation organized in Idaho, to provide the radiological services to NCH between the hours of 8:00 p.m. and 8:00 a.m., 365 days a year. The Youngs’ amended complaint specified that Dr. Grennan was an independent contractor with Nighthawk and that it was this series of contractual relationships that brought the CT scan to Dr. Grennan for review on February 19.

All of the defendants moved for summary judgment, alleging that the Youngs failed to provide notice of their intent to sue within the two years required by statute. See § 766.106, Fla. Stat. (2006). The trial court denied the motions of NCH and Naples Radiologists but granted the joint motion of Nighthawk and Dr. Gren-nan. In its order, the trial court determined that the Youngs were required to file their notice of intent by May 8, 2008, that the attempt to obtain a ninety-day extension pursuant to section 766.104(2) was ineffective, and that the Youngs’ June 17, 2008, notice to Nighthawk and Dr. Grennan was served outside the notice period. However, the trial court’s order was styled “Proposed Order” and failed to contain words of finality. The litigation continued against NCH and Naples Radiologists for approximately seventeen months before the Youngs filed a motion for reconsideration and correction of the “proposed” order. In their motion for reconsideration, the Youngs pointed out the incorrect style of the order and the lack of words of finality and argued that such deficiencies rendered the order nonfinal and nonap-pealable. The Youngs also argued that the trial court’s findings regarding the Youngs’ attempt to obtain an extension of time were incorrect. The trial court denied the Youngs’ motion for reconsideration and instructed Nighthawk and Dr. Grennan to submit a properly worded final order. Nighthawk and Dr. Grennan submitted, and the trial court entered, the final order on appeal, which included the same findings as contained in the original “proposed” order.

This court reviews final summary judgments de novo. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). Summary judgment should only be granted when there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hodges v. Citrus World, Inc., 850 So.2d 648, 649 (Fla. 2d DCA 2003). Here, because Nighthawk and Dr. Grennan were not entitled to summary judgment as a matter of law, we must reverse.

Florida Rule of Civil Procedure 1.650(b)(1) provides that “notice of intent to initiate litigation sent by certified mail to and received by any prospective defendant shall operate as notice to the person and any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice.” On appeal, the Youngs argue that summary judgment was improper because pursuant to rule 1.650(b)(1), the April 1, 2008, notice they provided to Naples Radiologists was also effective notice to Nighthawk and Dr. Grennan because they were in a “legal relationship” with Naples Radiologists.

It is undisputed that the Youngs provided notice to Naples Radiologists on April 1, 2008. Such notice was timely pursuant to the trial court’s finding that the two-year notice period expired on May 8, 2008. In their pleadings below, the Youngs alleged a contractual relationship between Naples Radiologists and Nighthawk and that Dr. Grennan was an independent contractor with Nighthawk. The Youngs further alleged that the reason Mrs. Young’s CT scan was sent to Switzerland in the middle of the night for Dr. Grennan’s review was the legal contractual relationship he had with Nighthawk and the legal contractual relationship Nighthawk had with Naples Radiologists.

In response, Nighthawk and Dr. Gren-nan argue that their relationship with Naples Radiologists does not meet the definition of a “legal relationship.” They maintain that the term, as used in rule 1.650(b), refers to employees or servants. We disagree. First, there is no definition of “legal relationship” included in the rule. And second, in their answer to the Youngs’ amended complaint, Nighthawk and Dr. Grennan admitted that Nighthawk was in a written contractual relationship with Naples Radiologists and that Dr. Grennan was an independent contractor for Nighthawk. These are both business relationships defined by the law of contracts that bestow legal rights and legal obligations upon the parties to the relationships. As such, notice to prospective defendant Naples Radiologists was notice to prospective defendants Nighthawk ■ and Dr. Grennan, rendering summary judgment improper as a matter of law.

Nighthawk and Dr. Grennan also argue that the Youngs did not raise the imputed notice theory at the first summary judgment hearing and that therefore they were precluded from raising it on rehearing. We reject this argument.

[Rjehearing may be granted in an appropriate case to prevent an injustice that would be caused by an error or omission by one of the lawyers. In Fernandes v. Boisvert, 659 So.2d 412, 413 (Fla. 2d DCA 1995), for example, the appellate court held that the trial court abused its discretion by declining to consider an affidavit presented for the first time on rehearing. The affidavit ... would have been sufficient to defeat a summary judgment had it been filed on time.
We do not suggest that trial judges are required to consider new issues presented for the first time on rehearing. Our point is simply that they have the authority to hear new issues. In the present case, the proper exercise of discretion would have been to allow the argument on rehearing.... It is true that responsibility for the failure to present the argument earlier lies with the [appellants], not the trial court, but the error was one that could have been corrected easily and inexpensively.

Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So.3d 269, 278-79 (Fla. 1st DCA 2012); see also Knowles v. JPMorgan Chase Bank, N.A., 994 So.2d 1218, 1220 (Fla. 2d DCA 2008) (“[A] trial court ... ‘has broad discretion to grant a rehearing of a summary judgment when the party seeking rehearing submits matters that would have created an issue precluding summary judgment if they had been raised prior to the hearing on the motion.’ ” (quoting Fatherly v. Cal. Fed. Bank, FSB, 703 So.2d 1101, 1102 (Fla. 2d DCA 1997))). To suggest that the trial court should not consider the applicable argument for the first time at rehearing would result in “an unnecessary triumph of procedure over substance.” Fitchner, 88 So.3d at 279.

Finally, Nighthawk and Dr. Gren-nan argue that because the Youngs waited for seventeen months after the entry of the “Proposed Order” to ask for a clarification of that order, they are estopped from seeking relief. We reject this argument as well. Nighthawk and Dr. Grennan had the opportunity to submit an order in final form at any time and did not do so. Furthermore, there is no showing of any detriment to Nighthawk and Dr. Grennan due to the passing of time. The discovery process continued between the Youngs and the other two defendants but did not include Nighthawk or Dr. Grennan. The only consequence of the delay was the erroneous assumption by Nighthawk and Dr. Grennan that they were no longer involved with the court proceedings. But the trial court maintained jurisdiction over them until a final judgment was entered and, thus, properly considered the Youngs’ motion for reconsideration/clarification.

In conclusion, because as a matter of law Nighthawk and Dr. Grennan were in a legal relationship with Naples Radiologists, the implied notice provision of rule 1.650(b)(1) was triggered and summary judgment was improper. We therefore reverse and remand for further proceedings.

Reversed and remanded.

ALTENBERND and CRENSHAW, JJ„ Concur.

      . The Youngs filed a medical malpractice claim against the several appellees. The trial court granted summary judgment in favor of Nighthawk and Dr. Grennan but denied the motions for summary judgment filed by Naples Community Hospital and Naples Radiologists. That litigation remained pending at the time this appeal was initiated.

      . Section 766.104(2) provides in pertinent part as follows: "Upon petition to the clerk of court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $37.50, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1).”

      . The Youngs’ original complaint named only Naples Community Hospital and Naples Radiologists, P.A., as defendants. However, the Youngs filed an amended complaint on October 9, 2008, adding Nighthawk Radiology and Dr. Grennan as defendants.

      . Section 766.106(2)(a) provides in part that "[a]fter completion of presuit investigation pursuant to s, 766.203(2) and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence.” Subsection (4) of the statute allows that ”[t]he notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11.” Section 95.1 l(4)(b), Florida Statutes (2006), provides that ”[a]n 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.”

      . By the terms of this written contract, Nighthawk’s compensation for the services it provided was paid by Naples Radiologists, not the hospital or the individual patients.

      . The Youngs ultimately filed a second amended complaint, but the trial court granted summary judgment in favor of Nighthawk and Dr. Grennan before they filed an amended answer.

      . The Youngs also argue on appeal that the trial court erred in determining that their attempt to obtain a ninety-day extension of the notice period was unsuccessful. However, because we have concluded that summary judgment was improper under the terms of rule 1.650(b)(1), we need not address the sufficiency of the Youngs’ petition for an extension.


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    Ryan S. SLADE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-914.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2014.
   PER CURIAM.

Ryan S. Slade appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the order summarily denying relief as to Ground I without comment. However, we reverse as to Grounds II, III, and IV and remand the case for further proceedings.

Mr. Slade entered an open plea of no contest to burglary of a dwelling and grand theft. At a later sentencing date, Mr. Slade was sentenced to eight years in prison as a habitual felony offender followed by ten years of probation for the burglary and to a concurrent term of five years in prison for the grand theft. Mr. Slade did not appeal his convictions and sentences.

Mr. Slade filed a timely rule 3.850 motion raising four claims for relief which allege ineffective assistance of counsel. The postconviction court summarily denied Mr. Slade’s motion by adopting the State’s response and found all the grounds “are without merit, conclusively refuted by the record, or attempts to go behind the plea.”

To state a prima facie case of ineffective assistance of counsel, Mr. Slade must establish both counsel’s deficient perform-anee and prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient performance, Mr. Slade must identify particular acts or omissions by counsel that are outside the broad range of reasonable assistance under prevailing professional standards. Id. at 690, 104 S.Ct. 2052. Because Mr. Slade pleaded, to prove prejudice he must establish that, but for defense counsel’s deficient performance, he would have insisted upon going to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 866, 88 L.Ed.2d 203 (1985). Because Mr. Slade’s rule 3.850 motion was summarily denied without an evidentiary hearing, we are required to accept as true his allegations that are not conclusively refuted by the record. See Hamilton v. State, 979 So.2d 420, 422 (Fla.2d DCA 2008).

In Ground II, Mr. Slade argues that trial counsel was deficient for failing to advise him that the evidence was probably insufficient to support the grand theft charge. Mr. Slade took thirty to thirty-five DVDs from the victim, and he contends that because the DVDs were used, their market value would not reach or exceed $300. Mr. Slade further contends that he would not have pleaded to grand theft but for the deficient performance. The State responded that Mr. Slade was challenging the sufficiency of the evidence and that his claim was procedurally barred.

The State’s theory is erroneous, and the postconviction court erred in adopting it. See Bruno v. State, 807 So.2d 55, 63 (Fla.2001) (“Whereas the main question on direct appeal is whether the trial court erred, the main question in a Strickland claim is whether trial counsel was ineffective. Both claims may arise from the same underlying facts, but the claims themselves are distinct and—of necessity—have different remedies: A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal.” (footnotes omitted)). Mr. Slade was charged under section 812.014(2)(c)(l), Florida Statutes (2009), so the State would have had to prove at trial that the fair market value of the stolen DVDs exceeded $300. See Newland v. State, 117 So.3d 482, 484 (Fla. 2d DCA 2013) (holding that replacement cost is not an appropriate measure of value under the theft statute “ ‘unless the State first presents evidence that the market value could not be satisfactorily ascertained’ ” (quoting AD. v. State, 30 So.3d 676, 678 (Fla. 3d DCA 2010))). Mr. Slade established a legally sufficient claim of ineffective assistance of counsel that is not conclusively refuted by the record, so the postconviction court erred in summarily denying this claim.

In Ground III, Mr. Slade alleges that counsel was ineffective for not moving to suppress his confession on the basis that he was too intoxicated to make a knowing, intelligent, and voluntary waiver of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966). In response, the State attached the motion to suppress that Mr. Slade’s attorney filed. The State further contended that Mr. Slade could not prove prejudice because the victim and his next door neighbor could have testified to Mr. Slade’s guilt.

Again, the State’s theory does not conclusively refute Mr. Slade’s claim, so the postconviction court erred in adopting it. Defense counsel’s motion to suppress did not argue that Mr. Slade did not knowingly, intelligently, and voluntarily waive his Miranda rights because he was intoxicated; it argued that Mr. Slade asked the police to stop the interrogation, so his subsequent confession should be suppressed on that ground. Yet the transcript defense counsel attached in support of the motion, as well as the witnesses’ statements and the arresting officer’s observations, clearly indicate that Mr. Slade was likely intoxicated when he was interrogated. Although, as a general rule, intoxicants or narcotic drugs affect the credibility rather than the admissibility of a confession, in some circumstances their influence may be so severe as to render the confession involuntary. See Reddish v. State, 167 So.2d 858, 862-63 (Fla.1964). Accordingly, the State’s attachment does not conclusively refute Mr. Slade’s legally sufficient claim of deficient performance. See Harrison v. State, 562 So.2d 827, 827-28 (Fla. 2d DCA 1990) (reversing summary denial where the defendant’s claim that his attorney was ineffective for not moving to suppress his confession given under the influence of crack cocaine was not conclusively refuted by the record).

Further, the postconviction court also erred in adopting the State’s theory that Mr. Slade could not prove the outcome of his trial would have differed if his confession were suppressed. Mr. Slade “was not required to allege that his motion to suppress would have been granted in order to state a facially sufficient claim of ineffective assistance.” Deck v. State, 985 So.2d 1234, 1238 (Fla. 2d DCA 2008). Rather, his burden on the prejudice prong was to show only that without his counsel’s misadvice, there was a reasonable probability that he would have chosen to go to trial instead of pleading. Id. Mr. Slade’s motion alleges that if defense counsel had challenged the admissibility of his confession on this basis, he would not have pleaded and would have insisted on going to trial instead. Accordingly, the postconviction court erred in summarily denying relief on this ground.

In Ground IV, Mr. Slade contends that defense counsel told him that if he entered an open plea, the court would sentence him according to the guidelines rather than as a habitual felony offender, concurrent with the sentence he was currently serving on another case. But for the misleading advice, Mr. Slade contends, he would not have pleaded and would have insisted upon going to trial. The State argued that based on Alfred v. State, 998 So.2d 1197 (Fla. 4th DCA 2009), the plea colloquy and signed plea form conclusively refute Mr. Slade’s claim.

In Ely v. State, 13 So.3d 167, 168-169 (Fla. 2d DCA 2009), this court specifically rejected the reasoning of the Fourth District in Scheele v. State, 953 So.2d 782 (Fla. 4th DCA 2007), the case on which Alfred is based. This court has held that a defendant’s awai’eness of the maximum possible sentence he faces does not vitiate a claim that his attorney assured him that his actual sentence would be much less than the maximum. Rather, “[t]o defeat a claim that a defendant entered a plea based on erroneous advice of trial counsel concerning the length of the prison sentence that will be imposed, the court must have addressed this specific issue with the defendant.” Johnson v. State, 757 So.2d 586, 587 (Fla. 2d DCA 2000). The record shows that Mr. Slade knew he faced up to thirty-five years in prison, but the record does not conclusively refute his claim that his attorney advised him that he would receive a 37.2-month guidelines sentence. Mr. Slade rejected the State’s offer of ten years in prison and chose to plead to an open sentence. Although the sentencing court explained that Mr. Slade faced a sentence “substantially more than ten years,” the court also told him, “I’m not saying that’s what would happen, because I haven’t heard all the facts of the case.” Further, during the sentencing, defense counsel stated:

I think Mr. Slade showed some courage in — in going ahead and pleading this case directly to the Court.
And, you know, that’s always dangerous and as a defense attorney it’s not something that I recommend to any — in front of any judge, but my reasoning was that this was not a case that it was necessary for the State to prove that he has taken responsibility for his actions. I believe he has shown remorse today and you should take that into consideration.

Accordingly, the record does not conclusively refute Mr. Slade’s allegation that his attorney told him that he would receive a guidelines sentence if he entered an open plea and that but for counsel’s error he would have rejected the plea and proceeded to trial.

Based on the foregoing, we affirm the postconviction court’s order summarily denying relief on Ground I and reverse as to Grounds II, III, and IV and remand for the court to hold an evidentiary hearing on Mr. Slade’s claims or attach portions of the record that conclusively show he is not entitled to relief.

Affirmed in part, reversed in part, and remanded.

KHOUZAM, CRENSHAW, and MORRIS, JJ., Concur.


text:
    Eddie L. DARBY, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3058.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2014.
    Eddie L. Darby, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, and Kaylee D. Tatman, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Eddie L. Darby, appeals the order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. We reverse.

Appellant was originally charged by information with one count of driving while license suspended with two prior convictions. Appellant entered a negotiated plea of nolo contendere as charged, and was sentenced to two days in the Orange County Jail with credit for two days time served, followed by six months of community control which was to be followed by twelve months of probation. Appellant did not appeal the judgment, sentence, order of community control, or order of probation.

On August 25, 2010, Appellant, through counsel, filed a motion to modify sentence and on December 28, 2010, his community control was terminated and Appellant was placed on thirteen months of probation. Appellant violated probation, and on October 6, 2011, his probation was revoked and he was sentenced to fifty-two months of incarceration in the Department of Corrections with credit for 159 days time served.

Appellant contends he is entitled to additional jail credit for time served in Seminole County Jail awaiting transport to Orange County. Specifically, while on probation in this case, he was arrested on April 25, 2011, in Seminole County for an unrelated offense [driving with a suspended license and driving with unsafe/faulty equipment]. For that case, Appellant was granted a bond, which he states was posted; however, Seminole County continued to hold him on the Orange County violation of probation warrant for several days. Then, on May 3, 2011, Appellant was transported to Orange County on the violation of probation. Appellant complains that he was not credited for the time spent in Seminole County Jail after he bonded out until he was transported to Orange County, a total of eight days.

The fact that Appellant bonded out in the Seminole case and was not released, but rather held in this case, would entitle Appellant to relief as argued. Gethers v. State, 798 So.2d 829 (Fla. 4th DCA 2001); Bonilla v. State, 884 So.2d 1072 (Fla. 5th DCA 2004) (that defendant was in custody pursuant to detainer of another county after he was subject to release on charges on which he had originally been arrested, was in custody pursuant to detainer, for purposes of determining subsequent credit against sentence for time served to which detainee was entitled). In light of Bonilla, the State was ordered to respond. They agree in their response that Appellant is entitled to additional credit. We reverse on this issue and remand for addition of the eight days of credit.

REVERSED and REMANDED.

TORPY, C.J., GRIFFIN and BERGER, JJ., concur.


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    Jean L. TOUZE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-636.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2014.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

This is an Anders case in which we have found errors in the judgment and sentence requiring correction.

Appellant, Jean L. Touze [“Touze”], was charged with second-degree murder (with a firearm) (25-Life' Minimum Mandatory) (LIFE-L10). After a jury trial, he was convicted of the offense as charged. The jury also made specific findings that Touze actually possessed and discharged a firearm during the commission of the offense and that, as a result, he did cause great bodily harm or death to the victim. At his sentencing, the trial court sentenced Touze to life imprisonment and imposed the twenty-five year firearm minimum mandatory pursuant to section 775.087(2), Florida Statutes.

Nevertheless, Touze’s written judgment reflects that Touze was convicted of the “Capital Offense” of second-degree murder. This is incorrect as the offense of second-degree murder (as noted above), is a first-degree felony, punishable by life. See § 782.04(2), Fla. Stat. (2010).

In addition, Touze’s written sentence appears to incorrectly reflect that the twenty-five year minimum mandatory sentence imposed by the trial court was imposed pursuant to section 775.082(1), Florida Statutes, because Touze had committed a “Capital Offense.” Once again, this is incorrect. As noted above, Touze’s twenty-five year minimum mandatory sentence was imposed by the trial court based upon the jury’s finding that Touze actually possessed and discharged a firearm during the commission of the offense and that, as a result, he did cause great bodily harm or death to the victim. See also § 775.087(2)(a)3„ Fla. Stat. (2010). As such, Touze’s written sentence should reflect the correct statutory basis for the imposition of the twenty-five year minimum mandatory sentence.

AFFIRMED in part; REMAND for correction of judgment and sentence.

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