author: PER CURIAM.

text:
    Casey Marie ANTHONY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2357.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    Rehearing Denied March 25, 2013.

      J. Cheney Mason of J. Cheney Mason, P.A., Orlando, and Lisabeth Fryer, Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Casey Anthony appeals her convictions for four counts of providing false information to a law enforcement officer during a missing person investigation in -violation of section 837.055, Florida Statutes (2008). These charges arose from statements Appellant made to Detective Yuri Melich on July 16, 2008 during an investigation into the disappearance of Appellant’s young daughter, Caylee Anthony. Appellant argues that these convictions should be reversed because: (1) the trial court should have granted her motion to suppress statements made to law enforcement officers prior to Appellant having been apprised of her Miranda rights; (2) her multiple convictions violated the prohibition against double jeopardy; and (3) section 837.055 is unconstitutionally vague. We reject Appellant’s first and third arguments, but conclude that double jeopardy principles require that two of her four misdemeanor convictions be set aside.

On the evening of July 15, 2008, law enforcement officers arrived at the residence of Appellant’s parents, George and Cindy Anthony, in response to three 9-1-1 calls placed by Cindy Anthony. In the first two calls, Cindy Anthony requested police assistance in recovering a vehicle and money allegedly stolen by Appellant. In the third 9-1-1 call, Cindy Anthony reported that her granddaughter, Caylee, had been missing for approximately thirty days. Cindy Anthony testified that she made these phone calls because Appellant would not tell her where Caylee was.

When the officers arrived, they separated the family members according to their standard procedure and obtained statements regarding the missing child. Appellant appeared to be cooperating with the officers and provided information freely and voluntarily. She informed the officers that she had last seen Caylee when she dropped her off at the apartment of her nanny, Zenaida Fernandez-Gonzalez, on June 9, 2008. Appellant informed the officers that Gonzalez lived at the Sawgrass Apartments in Orlando, but she could not remember the apartment number.

Appellant agreed to go with Deputy Acevedo to the Sawgrass Apartments to show her exactly where she had last seen her daughter. She sat in the back of Deputy Acevedo’s vehicle with the partition open so that she could communicate with her. After indicating to Deputy Acevedo the particular apartment where she had purportedly left Caylee, Appellant was driven back to her home where she gave law enforcement officers a written statement. The statement was read into evidence at trial and provided as follows:

Monday June 9th, 2008, between 9 a.m. and 1 p.m., I, Casey Anthony, took my daughter, Caylee Marie Anthony, to her nanny’s apartment. Caylee will be three years old on August 9th, 2008. She was born on August 9, 2005. Cay-lee is about three feet tall, white female with shoulder-length, light brown hair. She has dark hazel eyes (brown/green), and a small birthmark on her left shoulder. On the day of her disappearance, Caylee was wearing a pink shirt with jean shorts, white sneakers and her hair was pulled back in a ponytail.
On Monday, June 9, 2008, between 9 a.m. and 1 p.m., I took Caylee to the Sawgrass Apartments located on Conway Road. Caylee’s nanny, Zenaida Fernandez-Gonzalez, has watched her for the past year and a half to two years. Zenaida is 25 years old and is from New York. She is roughly five-foot seven-inches tall, 140 pounds. She has dark brown curly hair and brown eyes. Ze-naida’s birthday is in September.
I met Zenaida through a mutual friend, Jeffrey Michael Hopkins. She has watched his son Zachary Hopkins for six months to a year. I met Zenaida in 2004 around Christmas. On the date listed above, June 9, 2008, after dropping Caylee off at Zenaida’s apartment, I proceeded to head to my place of employment at Universal Studios Orlando. I have worked at Universal for over four years since June of 2004.
I left work around 5 p.m. and went back to the apartment to pick up my daughter; however, after reaching the apartment, I realized that neither Zenaida or Caylee nor either of her two roommates was home.
I had briefly met Raquel Farrell and Jennifer Rosa on various occasions after calling Zenaida to see where she and Caylee were and when they were coming home. I waited outside of the apartment.
I had called Zenaida earlier that morning prior to bringing Caylee over for the afternoon. When I called her that afternoon, her phone was no longer in service.
Two hours passed, and around 7 p.m., I left the apartment and headed to familiar places that Zenaida would go with Caylee. One of Caylee’s favorite places is Jay Blanchard Park. I spent the rest of the evening — correction—rest of that evening pacing and worrying that one of the few places I felt, quote, at home, unquote, my boyfriend Anthony Lazza-ro’s apartment.
For the past four weeks since Caylee’s disappearance, I have stayed at Anthony’s apartment in Sutton Place. I have spent every day since Monday, June 9, 2008, looking for my daughter. I have lied and stolen from my friends and family to do whatever I could by any means to find my daughter.
I have avoided calling the police or even notifying my own family out of fear. I have been and still am afraid of what has or may happen to Caylee. I have not had any contact with Zenaida since Thursday, June 12, 2008. I received a quick call from Zenaida.
Not once have I been able to ask her for my daughter or gain any information on where I can find her. Every day I have gone to malls, parks, anyplace I could remember Zenaida taking Caylee. I have gone out and tried to find any information about Caylee or Zenaida whether by going to a popular bar or restaurant.
I have contacted Jeff Hopkins on several occasions to see if he had heard from or seen Zenaida. Jeff currently lives in Jacksonville, Florida.
On Tuesday, July 15th, 2008, around 12 p.m., I received a phone call from my daughter Caylee. Today was the first day I have heard her voice in over four weeks. I’m afraid of what Caylee is going through. After 81 days, I know that the only thing that matters is getting my daughter back.
With many and all attempts to contact Zenaida and within the one short conversation on June 12th, 2008,1 was never able to check on the status or well-being of my daughter. Zenaida never made an attempt to explain why Caylee is no longer in Orlando or if she is ever going to bring her home.

At some point after Appellant had given her written statement, Cindy Anthony approached Deputy Eberlin and presented him with documents purportedly demonstrating that Appellant had fraudulently used Cindy Anthony’s credit card. Because Deputy Eberlin believed Cindy Anthony’s allegations regarding the fraudulent credit card charges, he handcuffed Appellant and put her in his patrol car. Shortly thereafter, supervising officer Sergeant Hosey noticed that Appellant was in handcuffs and instructed that the handcuffs be removed because the focus of the law enforcement investigation was the possible kidnapping of Caylee and not fraud allegations against Appellant.

After the removal of the handcuffs, Appellant reentered the Anthony residence and was permitted to move about freely. Detective Melich arrived at the Anthony residence at 8:30 a.m. (July 16th) — approximately an hour after the handcuffs were removed. At about 4:10 a.m., Detective Melich spoke with Appellant in the spare bedroom of the residence, with the door open. The interview was recorded with Appellant’s consent and admitted into evidence at trial. During this interview, Appellant reaffirmed her prior written statement and added that she had also disclosed Caylee’s disappearance to Juliette Lewis and Jeffrey Hopkins, former Universal Studios employees.

Following her interview with Detective Melich at the Anthony residence, Appellant agreed to show Detective Melich where she had dropped Caylee off on June 8, 2008, as well as Gonzalez’s former residences. Appellant rode with Detective Melich in the front passenger seat of his unmarked police vehicle for approximately one hour, directing him to the Sawgrass Apartments and the other two locations where she claimed Gonzalez had lived. At no point during the car ride or interview did Detective Melich advise Appellant that she was under arrest, nor did Appellant suggest that she wished to terminate the encounter. Rather, Appellant appeared to be cooperative and indicated that she wanted Detective Melich’s help finding Caylee. Detective Melich returned Appellant to her family’s home and left around 6:45 a.m. At the time Appellant was dropped off at the Anthony residence, there were no officers present.

Detective Melich then began investigating the information Appellant had provided him and found it to be false. Later on July 16th, he called Appellant and requested that she come to Universal Studios. Two other officers picked Appellant up at her home and drove her to Universal Studios — approximately a thirty minute drive from the Anthony residence. Appellant and the two officers met Detective Melich at the employee entrance. Appellant was not in handcuffs and was not being touched or surrounded by the officers. At the security gate, Appellant adamantly claimed that she worked at Universal Studios, but did not have an employee identification card with her, nor did her alleged manager appear in Universal Studios’ database. Unable to confirm her employment status, Appellant indicated that she could show the officers where she worked. She led the officers into a building in an employees-only area of Universal Studios and walked down a hallway before she stopped and admitted that she did not work at Universal Studios.

Detective Melich then advised Appellant that he wanted to speak with her further, and they entered a small conference room in the building. During this second interview, Anthony was repeatedly confronted with her prior lies, although a primary focus of the interview was to obtain information to help locate the missing child. Indeed, Appellant acknowledged during the interview that she was there voluntarily for the purpose of helping the officers locate Caylee. Appellant admitted to Detective Melich that she had lied about working at Universal Studios and about Gonzalez’s address, but maintained that she had left Caylee with Gonzalez on June 9, 2008, and that she had spoken with Caylee on the phone on July 15, 2008. Appellant was later taken to the sheriffs office where she was arrested for child neglect and for providing false information to law enforcement. At the sheriffs office, Appellant was advised of her Miranda rights for the first time.

When Caylee’s remains were later discovered near the Anthony family home on December 11, 2008, Appellant was charged with murder. She was subsequently indicted for first-degree murder, aggravated child abuse, aggravated manslaughter of a child, and four counts of providing false information to a law enforcement officer. As to the last four counts, Appellant was charged with knowingly and willfully giving the following false information to Detective Melich:

Count 4: Appellant was employed at Universal Studios Orlando during the year 2008;
Count 5: Appellant left the child, Caylee Marie Anthony, at the Sawgrass Apartments, 2863 South Conway Road, Apt. 210, Orlando, Florida, with a person identified as Zenaida Fernandez-Gonzalez on June 9, 2008 or any subsequent date;
Count 6: Appellant informed persons identified as Jeffrey Michael Hopkins and Juliette Lewis, former Universal Studios Orlando employees, of the disappearance of the child, Caylee Marie Anthony, between June 9, 2008 and July 16, 2008;
Count 7: Appellant received a phone call from the child, Caylee Marie Anthony, on July 15, 2008 at approximately 12:00 p.m.

Appellant sought to suppress her statements made to law enforcement officers on the grounds that such statements were the product of custodial interrogation and were obtained prior to Appellant being informed of her Miranda rights. After a lengthy evidentiary hearing, the trial court entered a detailed order denying the motion. The case proceeded to trial with the jury ultimately finding Appellant guilty of the four counts of providing false information, but not guilty of the other three charges. Appellant’s post-trial motion to vacate three of the four misdemeanor convictions based on double jeopardy was denied and this appeal followed.

We conclude that the trial court did not err in denying Appellant’s motion to suppress. Miranda warnings are only required when a defendant is in custody and subjected to interrogation. Davis v. State, 698 So.2d 1182, 1188 (Fla.1997). In determining whether a defendant is in custody for purposes of Miranda, the primary inquiry is whether a reasonable person in the defendant’s position would believe that his or her freedom was curtailed to a degree associated with actual arrest. Mansfield v. State, 758 So.2d 636, 644 (Fla.2000); Bedoya v. State, 779 So.2d 574, 579 (Fla. 5th DCA 2001). The Florida Supreme Court has stated there are four factors that guide the determination of whether a suspect is in custody: (1) the manner in which law enforcement officers summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; and (4) whether the suspect is informed that he or she is free to leave. Ramirez v. State, 739 So.2d 568, 574 (Fla.1999).

We have no difficulty concluding that Appellant was not in custody at the time she gave a recorded statement to Detective Melich at the Anthony residence on the morning of July 16, 2008. First, Anthony was not summoned by law enforcement officers for questioning; rather, the officers went to the Anthony residence in response to 9-1-1 calls. Second, the interview took place in a spare bedroom at the Anthony residence, not in the potentially coercive environment of a sheriffs office. See Duddles v. State, 845 So.2d 939, 941 (Fla. 5th DCA 2008) (fact that interrogation occurred inside accused’s house, into which police were invited, indicates that interview was non-custodial). Third, Appellant was considered a witness in a kidnapping case, rather than a suspect and, thus, the purpose of the interview was to obtain information regarding the alleged kidnapping. There was no “confronting” Appellant with evidence of her guilt. Fourth, although Appellant was not informed of whether she was free to leave, the evidence reflects that the door to the spare room utilized for the interview was left open and that Appellant was not restrained in any way from moving about the residence. In summary, all the Ramirez factors weigh heavily in favor of the State.

Appellant argues that because she was briefly handcuffed and arrested on the unrelated grand theftyfraud charges, she must be deemed to have been in custody at the time of her subsequent interview. We reject this argument. As the trial court properly found, because Appellant was released from the handcuffs and voluntarily remained to answer Detective Melich’s questions, any causal link between her arrest and her subsequent statements had been broken. See, e.g., Sanchez-Velasco v. State, 570 So.2d 908 (Fla.1990) (finding by trial court that defendant who was later charged with first-degree murder voluntarily entered police car, even though he had initially been arrested for grand larceny but was released when police discovered they had insufficient grounds to arrest him on that charge, was supported by competent evidence, to-wit: that after police released defendant, he was not told to remain, but rather walked unrestrained to side of the road and sat down for approximately ten minutes, and then in response to a request by one of the investigating officers, defendant agreed to discuss the murder); Parks v. State, 644 So.2d 106 (Fla. 4th DCA 1994) (even if police lacked probable cause for arrest of defendant on unrelated charge, fact that defendant was released from custody and voluntarily remained to answer questions broke causal link between arrest and his making of incriminating statements to police).

The interview at Universal Studios poses a closer question. Although the evidence is clear that Appellant voluntarily accompanied officers to Universal Studios, the nature of the interview was significantly different than the interview that had taken place at the Anthony home. During this latter interview, Appellant was confronted with evidence of her numerous lies and the interview took place in a small office with the door closed. (Appellant was advised by Detective Melich that the door was closed “for privacy.”) However, the fact that the interview took place in a small office with the door closed does not compel the conclusion that Appellant was in custody. See, e.g., Meredith v. State, 964 So.2d 247, 251 (Fla. 4th DCA 2007) (“That the interrogation occurred in the inherently coercive environment of the sheriffs office did not transform the otherwise non-custodial interrogation into a custodial one.”).

The trial court found that while the officers were frustrated with Appellant for leading them on a “wild goose chase,” the overall tone of the conversation was not accusatorial and the officers did not speak to Appellant in an intimidating manner. Significantly, Appellant confirmed on more than one occasion during the interview that she was there voluntarily for the purpose of helping the officers locate her missing daughter. After consideration of the Ramirez factors, we conclude that a reasonable person in Appellant’s position would not believe “that his or her freedom was curtailed to a degree associated with actual arrest.”

Appellant next argues that double jeopardy principles preclude her from being convicted for more than a single violation of section 887.055, because her various false statements to law enforcement officers constituted a single offense. The State takes the position that each of Appellant’s false statements constituted a separate offense and, therefore, no double jeopardy violation occurred. We reject both parties’ arguments and conclude that under the facts of this case, Appellant can properly be convicted of two counts of providing false information to a law enforcement officer during a missing person investigation.

Section 837.055 provides:

False information to law enforcement during investigation.—
Whoever knowingly and willfully gives false information to a law enforcement officer who is conducting a missing person investigation ... with the intent to mislead the officer or impede the investigation commits a misdemeanor of the first degree....

All four of the false statements were made by Appellant in her interview with Detective Melich at the Anthony residence. Two of the false statements (Counts 5 and 7), were repeated to Detective Melich in the later interview at Universal Studios.

Both the United States and Florida Constitutions contain “double jeopardy” clauses prohibiting multiple prosecutions, convictions, and punishments for the same criminal offense. Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009). However, these constitutional clauses do not prohibit multiple punishments for different offenses arising out of the same episode as long as the Legislature intended to authorize separate punishments. Id.

Initially, we reject Appellant’s argument that all of the false statements were made during a single criminal episode. Appellant gave false information to Detective Melich during two separate interviews that took place several hours apart. Where there is a sufficient temporal break between two alleged criminal acts so as to have allowed a defendant time to pause, reflect, and form a new criminal intent, a separate criminal episode will be found to have occurred. Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004); see Hayes v. State, 803 So.2d 695, 704 (Fla.2001) (courts should look to whether there was separation of time, place, or circumstances between initial armed robbery and subsequent theft of same victim’s property to determine whether there are distinct and independent criminal acts or whether there was one continuous criminal act with single criminal intent). In light of the significant temporal break between Appellant’s two interviews with Detective Melich, we determine that each interview in which false information was given (or repeated) constituted a separate criminal episode.

However, we also find the State’s argument that each false statement constituted a separate crime to be flawed. Section 837.055 speaks in terms of “false information,” not “false statements.” The term “information” can encompass one or many statements of fact. See Merriam Webster’s Collegiate Dictionary 599 (10th ed.) (listing “facts” as a synonym for “information”). Based on the wording of section 837.055, we cannot conclude that the Legislature intended to authorize separate punishment for each false statement made during a single interview.

Furthermore, in attempting to interpret whether the Legislature intended to authorize separate punishments for each false statement given during an interview with a law enforcement officer conducting a missing person investigation, we are also bound by the rule of construction that any ambiguity must be resolved in favor of the defendant. See § 775.021(1), Fla. Stat. (2008) (“The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”); Grappin v. State, 450 So.2d 480, 481 (Fla.1984) (where legislature does not establish allowable unit of prosecution with clarity, ambiguity must be resolved in accused’s favor). Based on the aforesaid analysis, we determine that the trial court should have vacated two of Appellant’s convictions.

We find no merit to Appellant’s final argument challenging the constitutionality of section 837.055.

AFFIRMED, in part; REVERSED, in part; and REMANDED for the vacating of two of Appellant’s convictions in accordance with this opinion.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . At trial, all of the statements referenced in Counts 4 through 7 were proven to be false. On appeal, Appellant does not challenge the sufficiency of the State’s evidence.

      . Our standard of review is de novo. See Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) (“A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.”).

      . The Fifth Amendment to the United States Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. Article 1, section 9, of the Florida Constitution provides in pertinent part: "No person shall ... be twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const.

      . By contrast, Florida’s perjury statutes speak in terms of "false statement" and, thereby, reflect an intent to punish each false statement as a separate crime. Section 837.02, Florida Statutes (2008), provides:
      Perjury in official proceedings.—
      (1) Except as provided in subsection (2), whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree....
      (2) Whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding that relates to the prosecution of a capital felony, commits a felony of the second degree. ...
      (3) Knowledge of the materiality of the statement is not an element of the crime of perjury under subsection (1) or subsection (2), and the defendant’s mistaken belief that the statement was not material is not a defense.
      Similarly, section 837.012, Florida Statutes (2008), states:
      Perjury when not in an official proceeding.—
      (1) Whoever makes a false statement, which he or she does not believe to be true, under oath, not in an official proceeding, in regard to any material matter shall be guilty of a misdemeanor of the first degree ....
      (2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant’s mistaken belief that his or her statement was not material is not a defense.


source: Caselaw Access Project

license: Public Domain

text:
    Felecia WILLIAMS, Appellant, v. Paul S. WILLIAMS, Appellee.
    No. 5D11-1401.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.
    Rehearing Denied March 14, 2013.

      Jody L. Fisher of The Law Office of Jody L. Fisher, P.A., Minneola, for Appellant.
    Linda Drew Kingston, Apopka, for Ap-pellee.
   PER CURIAM.

Finding no error on the face of the judgment, we affirm. See Murphy v. Murphy, 948 So.2d 864 (Fla. 5th DCA 2007); Wanstall v. Wanstall, 427 So.2d 353 (Fla. 5th DCA 1983).

AFFIRMED.

PALMER, JACOBUS and BERGER, JJ., concur.


author: THOMAS, J.

text:
    Billie Franklin SHIRAH, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2433.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2013.
    Rehearing Denied March 25, 2013.
    Nancy A. Daniels, Public Defender, M.J. Lord and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals his convictions for one count of principal attempted first degree premeditated murder, five counts of principal attempted second degree premeditated murder, one count of attempted making, possessing, or throwing a bomb, and one count of principal first degree arson of a dwelling. He also appeals his life sentence on his first degree felony convictions. Appellant raises four issues on appeal, only one of which merits discussion. For the reasons below, we reverse the conviction of five counts of attempted principal second degree premeditated murder. We affirm without further comment as to all other issues.

The trial court, without objection, gave the jury the following instruction as to attempted voluntary manslaughter:

To prove the crime of attempted voluntary manslaughter, the State must prove the following element beyond a reasonable doubt. [Defendant] committed an act or procured the commission of an act which was intended to cause the death of [victim] and would have resulted in the death of [victim] except that someone prevented [defendant] from killing [victim] or he failed to do so. However, the defendant cannot be guilty of attempted voluntary manslaughter if the attempted killing was either excusable or justifiable, as those terms have been previously explained to you.

This court has held that this instruction is erroneous and giving it constitutes fundamental error, a conclusion -with which the Florida Supreme Court has agreed in State v. Montgomery, 89 So.3d 252, 258 (Fla.2010). See also, Montgomery v. State, 70 So.3d 603, 607-08 (Fla. 1st DCA 2009); Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009); Thompson v. State, 76 So.3d 1050 (Fla. 1st DCA 2011).

Accordingly, we affirm Appellant’s judgment and sentence for principal attempted first degree premeditated murder, attempted making, possessing, or throwing a bomb, and principal first degree arson of a dwelling. We reverse Appellant’s convictions for five counts of principal attempted second degree premeditated murder and remand for a new trial as to these counts.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF and MARSTILLER, JJ., concur.


text:
    Martha GARDNER, Appellant, v. Anthony NIOSO, M.D.; Baptist Primary Care, Inc.; Gordon Polley, M.D.; North Florida Surgeons, P.A.; and Jacksonville Neurological Clinic, P.A., Appellees.
    No. 1D09-4767.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.

      Rodney S. Margol of Margol & Pennington, P.A., Jacksonville; William A. Bald of Dale, Bald, Showalter, Mercier & Green, P.A., Jacksonville, for Appellant.
    Kelly B. Mathis, Laurie M. Lee, James T. Murphy and Jill F. Bechtold of Mathis & Murphy, P.A., Jacksonville, for Appel-lees.
   OPINION ON MOTION TO ENFORCE MANDATE

PER CURIAM.

In this appeal before us, Appellees North Florida Surgeons, P.A., and Dr. Gordon Polley have filed a “Motion to Enforce Mandate” requesting this court to require the trial court to deny Appellant’s motion to extend stay and set aside arbitration award filed in lower tribunal case number 16-2008-CA000130. Appellant did not respond to the motion. We treat this motion as a Petition for Writ of Prohibition. See Fla. R.App. P. 9.040(c) (providing that if “a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.”). For the reasons explained below, we grant the writ.

The lower tribunal dismissed the aforementioned action as to Appellees based on an arbitration agreement, and this court affirmed that dismissal in Gardner v. Nioso, et al., 31 So.3d 950, 951 (Fla. 1st DCA 2010). This court’s mandate issued on April 9, 2010.

Despite the dismissal of the circuit court malpractice action, Appellant filed a motion to set aside the arbitration award or, alternatively, to stay in both the dismissed malpractice action and the arbitration case. This was met with Appellees’ motion to strike based on the trial court’s lack of jurisdiction over them based on the prior dismissal. The trial court refused to rule on the motion to set aside, granted the motion to stay, and denied Appellees’ motion to strike.

Appellant later filed the aforementioned motions to extend that stay and set aside in both that action and the arbitration case. During the hearing, counsel for Appellant candidly acknowledged that he was seeking to delay matters pending a decision by the Florida Supreme Court, which he hoped would find the arbitration agreement at issue in the arbitration case unenforceable and “give retroactive application to their decision,” and, thus, bring Appel-lees back into the case.

Rather than admonish counsel for this delay tactic, the trial court told counsel:

I understand exactly what you’re trying to do.... And if you had been right on this issue all along, then I think you deserve the — reap the benefits of it.... I think what I’m going to do is continue all pending motions in this case for three months.... I’m not granting the motion to stay. I’m just kicking it down the road for three months to — I’m just not going to do anything for three months, and you can get a date to continue it.

As Appellees correctly point out, by the trial court’s dismissal of the action against them, and the subsequent affirmance of that dismissal, the trial court no longer has jurisdiction over Appellees. Rather than strike Appellant’s motions, however, the trial court acquiesced in Appellant’s attempt to delay the trial court’s compliance with the mandate issued by this court almost three years ago. See Basic Energy Corp. v. Hamilton County, 667 So.2d 249, 250 (Fla. 1st DCA 1995) (holding “ ‘[a] trial court’s role upon the issuance of a mandate from an appellate court becomes purely ministerial and its function is limited to obeying the appellate court’s order or decree.... A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form,’ and may not ‘change the law of the case as determined by the highest court hearing the case.’”) (quoting Torres v. Jones, 652 So.2d 893, 894 (Fla. 3d DCA 1995)).

Accordingly, we GRANT this writ of prohibition and REMAND to the trial court with directions that Appellant’s motions be stricken for lack of jurisdiction. The lower court shall take no further action in lower tribunal case number 16-2008-CA000130 with respect to Appellees.

DAVIS, THOMAS, and RAY, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Alan Ray PAULK, Respondent.
    No. 5D12-2409.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.
    Rehearing Denied March 19, 2013.
    Brad King, State Attorney, and Brian Trehy, Assistant State Attorney, of Fifth Judicial Circuit, Inverness, for Petitioner.
    Michael R. Buchanan, of Dethomasis & Buchanan, P.A., Gainesville, for Respondent.
   PER CURIAM.

Petitioner, State of Florida, seeks certio-rari review of an order rendered on June 14, 2012, requiring the State to produce certain materials that the State alleges will result in material harm if disclosed. Having thoroughly reviewed the record, we conclude that the order under review departs from the essential requirements of the law and results in material injustice. See State v. Pettis, 520 So.2d 250 (Fla.1988). We therefore quash the order under review and remand this case for further proceedings.

PETITION GRANTED; ORDER QUASHED; REMANDED.

SAWAYA, EVANDER and JACOBUS, JJ., concur.


text:
    David CHAVEZ, Appellant, v. McDONALD’S RESTAURANT OF FLORIDA, INC., Walt Disney World Hospitality & Recreation Corporation, n/k/A Walt Disney World Co., Appellee.
    No. 5D11-1846.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    Rehearing Denied March 26, 2013.

      Annabel C. Majewski and Roy D. Was-son, of Wasson & Associates, Miami, for Appellant.
    Daniel S. Weinger and John P. Noyes, of Conrad & Scherer, LLP, Fort Lauder-dale, for Appellee.
   PER CURIAM.

David Chavez appeals the final summary judgment rendered in favor of McDonald’s Restaurant of Florida, Inc., the defendant in the personal injury action Chavez filed claiming damages from his slip and fall on McDonald’s Restaurant’s premises. We conclude that Chavez, a business invitee on the premises of McDonald’s Restaurant, was owed a duty of care and that material issues of fact exist that prohibit entry of summary judgment in McDonald’s Restaurant’s favor. See Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 330 (Fla.2001) (“It is undisputed that under Florida law, all premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition.”); McCain v. Fla. Pow er Corp., 593 So.2d 500 (Fla.1992); Wolford, 861 So.2d at 456-57; Cold Storage Cafe, Inc. v. Barone, 779 So.2d 371, 373 (Fla. 2d DCA 2000) (“The issue of whether a negligent condition exists on premises generally involves, as here, a disputed material fact which precludes summary judgment.”); Craig v. Gate Maritime Props., Inc., 631 So.2d 375, 377 n. 1 (Fla. 1st DCA 1994) (“The issue of whether a negligent condition existed on premises generally involves disputes of material fact which will preclude summary judgment.”); Garcia v. City of Hialeah, 550 So.2d 1158 (Fla. 3d DCA 1989) (holding that the duty of care owed includes the duty to provide reasonably safe ingress and egress).

We affirm the trial court’s in li-mine ruling regarding the testimony of George Zimmerman, but note that a Frye hearing is not necessary if he testifies based on his training and experience. See Marsh v. Valyou, 977 So.2d 543 (Fla.2007) (holding that Frye applies only to opinions based on new or novel scientific techniques and does not apply to pure opinion testimony based on training and experience). We also note that an expert’s opinion must be based on facts or inferences supported by the record. See Arkin Constr. Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957) (“[T]he conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value. It is equally well settled that the basis for a conclusion cannot be deduced or inferred from the conclusion itself. The opinion of the expert cannot constitute proof of the existence of the facts necessary to the support of the opinion.”); see also Schindler Elevator Corp. v. Carvalho, 895 So.2d 1103 (Fla. 4th DCA 2005).

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, C.J., SAWAYA and ■ COHEN, JJ., concur.

      . The trial judge made it clear that the basis for his ruling was that McDonald’s Restaurant did not owe the plaintiff a duty of care. We note that the issues of no prior accidents and whether McDonald's Restaurant knew of the alleged dangerous condition because McDonald's Restaurant created it are generally factual issues relating to whether the duty, once established, was breached and causation. Lewis v. Sun Time Corp., 47 So.3d 872, 873 (Fla. 3d DCA 2010); Wolford v. Ostenbridge, 861 So.2d 455, 456-57 (Fla. 2d DCA 2003). These issues were not decided by the trial court. Hence, we will not address them any further.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).


text:
    Margaret McGUIRK, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-250.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.
    Margaret McGuirk, Quincey, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2009-04195-CFAWS, 2010-000291-CFAWS and 2010-000292-CFAWS, in the Circuit Court in and for Volusia County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, EVANDER, BERGER, JJ., concur.


text:
    Joseph McKEE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-149.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.
    James S. Purdy, Public Defender, and Tyler J. Williams, Assistant Public Defender, Palatka, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2003-02187-CF-52, in the Circuit Court in and for Putnam County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA, and JACOBUS, JJ., concur.


text:
    Warren WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4467.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.
    Warren E. Williams, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The Appellant, Warren Williams, appeals the order striking his rule 3.800(a) motion to correct an illegal sentence in Orange County case number 1984-CF-3189 as being improperly successive and barring him from filing any pro se motions. We agree that the court was in error in striking his rule 3.800(a) motion in that it appears, from the record, Williams was not afforded the procedural due process under State v. Spencer, 751 So.2d 47 (Fla.1999) (holding that trial court must issue order to show cause which initiates a separate proceeding independent of the rule 8.800 action before imposing sanctions).

The State correctly concedes that Williams is entitled to an opportunity to respond before sanctions are imposed. The matter is remanded to the trial court to either attach records to establish that Williams received notice and was given an opportunity to be heard or to issue an order to show cause in accordance with Spencer.

REMANDED with INSTRUCTIONS.

GRIFFIN, TORPY and JACOBUS, JJ., concur.


text:
    Christopher J. DERTING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0808.
    District Court of Appeal of Florida, First District.
    March 12, 2013.
    Christopher J. Derting, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, CLARK, and RAY, JJ., concur.


text:
    Jeremy RIGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0305.
    District Court of Appeal of Florida, First District.
    March 12, 2013.
    Jeremy Riggs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied on the merits. See Peterson v. State, 746 So.2d 1208 (Fla. 1st DCA 1999).

LEWIS, CLARK, and RAY, JJ., concur.


text:
    Tyson James BENNETT, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4947.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2013.
    Tyson James Bennett, Sr., Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

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


text:
    Lucia M. ESPINAL, Appellant, v. LNV CORPORATION, Appellee.
    No. 5D12-4061.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2013.
    Lucia M. Espinal, Kissimmee, pro se.
    Christopher Hixson of Law Offices of Daniel C. Consuegra, P.L., Tampa, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

TORPY, LAWSON and JACOBUS, JJ., concur.


text:
    Clinton COLSON, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0518.
    District Court of Appeal of Florida, First District.
    March 13, 2013.
    Clinton Colson, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied. Insofar as petitioner contends his. appellate counsel was ineffective in failing to advise him of his right to seek further review in the Florida Supreme Court, our denial is without prejudice to petitioner’s right to file a proper petition in the Florida Supreme Court in accordance with Florida Rule of Appellate Procedure 9.141(c).

DENIED.

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


text:
    Johnnie B. JOHNSON, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5046.
    District Court of Appeal of Florida, First District.
    March 13, 2013.
    Johnnie B. Johnson, Sr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a postconviction motion claiming that the trial court sentenced him for aggravated battery with a deadly weapon to 15 years’ imprisonment as a prison releasee reoffender (“PRR”) and as a habitual felony offender (“HFO”). He argues that the court cannot legally sentence him as both a PRR and an HFO unless the HFO sentence is longer than the PRR sentence. The trial court denied the motion after finding the sentence to be legally correct. The court did not attach any documents conclusively refuting the claim.

The appellant is correct that the trial court may only sentence him as a PRR as long as the HFO sentence is longer. See Dolansky v. State, 964 So.2d 188 (Fla. 1st DCA 2007). We therefore reverse and remand for the trial court to attach documents that conclusively refute the claim, or, in the alternative, for the trial court to strike the HFO enhancement. See id.

REVERSED AND REMANDED with instructions.

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    Andrew WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3701.
    District Court of Appeal of Florida, First District.
    March 13, 2013.
    Andrew Williams, pro se.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appeal is treated as a petition for writ of certiorari. See Sheley v. Fla. Parole Comm’n, 720 So.2d 216, 217-18 (Fla.1998). The petition is DENIED on the merits.

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


text:
    C.C., Mother of H.C., T.C, J.H., and R.H., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D12-1236.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2013.
    Elliott R. Ambrose, of Law Office of Elliott R. Ambrose, Brooksville, for Appellant.
    Deborah Anne Schroth, of Department of Children & Families, Jacksonville, for Appellee.
    Wendie Michelle Cooper, Tavares, for Guardian Ad Litem Program.
   PER CURIAM.

C.C., the mother, appeals a final judgment terminating her parental rights to four minor children, H.C., T.C., J.H. and R.H. Although none of the issues raised by the mother requires reversal, one merits discussion.

Over the mother’s timely objection, and without complying with section 90.803(23), Florida Statutes (2011), the court admitted two hearsay statements made by one of her children who had testified earlier at trial. That statute requires the court to conduct a preliminary inquiry into the reliability of child hearsay statements in specified instances, including those presented in this matter. Although that was not done here, we conclude the error was harmless. See Glendening v. State, 536 So.2d 212 (Fla.1988); State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

AFFIRMED.

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


author: COHEN, J.

text:
    Kirk W. BLEICH, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1047.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Kirk W. Bleich appeals from the judgment and sentence entered after a jury found him guilty of home invasion robbery with a firearm. On appeal, he argues the trial court erred in allowing the State to call a -witness for the sole purpose of impeaching the witness with his prior inconsistent statement. We agree and reverse.

Following the robbery, a Hernando County Sheriffs Office detective interviewed Kirk’s brother, Barak Bleich. During the interview, Barak admitted he and Kirk had committed the robbery together and provided the detective with details of the crime. Barak later pled guilty to the robbery; however, Kirk chose to go to trial.

On the morning the trial was to begin, the State advised the court that Barak indicated he would not testify against his brother. Seeking to hold Barak in contempt, the State proffered his testimony that he did not recall giving the statement to the detective. After the State played a DVD of his interview with law enforcement, Barak testified that he recalled making the statement but did not remember whether his brother had participated in the robbery. The State then argued that it could call Barak as a witness and play the DVD to refresh his recollection if he claimed an inability to remember making the statement at trial. The defense objected, arguing that the State was not permitted to call Barak for the primary purpose of impeaching him with his prior inconsistent statement. The trial court overruled the objection.

During its opening statement, the State quoted portions of Barak’s statement wherein he incriminated Kirk. The State also indicated that while it did not believe Barak would be a cooperative witness, the jury would “hear either through him or through other means what happened that night.” The State then called Barak as its first witness. When Barak denied that Kirk was involved in the robbery, the State promptly impeached him by playing for the jury the DVD of his statement to law enforcement. Later, during its closing argument, the State repeatedly referenced Barak’s statement as if it was substantive evidence of Kirk’s guilt. The jury found Kirk guilty of the robbery, and this appeal followed.

Section 90.608(1), Florida Statutes (2010), provides that a party may impeach a witness by introducing statements of the witness which are inconsistent with the witness’s present testimony. However, “if a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded.” Morton v. State, 689 So.2d 259, 264 (Fla.1997), receded from on other grounds by Rodriguez v. State, 753 So.2d 29 (Fla.2000). In determining whether a witness is called for the primary purpose of introducing a prior inconsistent statement that is otherwise inadmissible, the court may consider several factors, including: (1) whether the witness’s testimony surprised the calling party; (2) whether the witness’s testimony affirmatively harmed the calling party; and (8) whether the impeachment of the witness was of de minimis substantive value. Senterfitt v. State, 837 So.2d 599, 600 (Fla. 1st DCA 2003); see also State v. Richards, 843 So.2d 962, 965 (Fla. 3d DCA 2003) (referring to authority that notes the pivotal question is whether the party is calling the witness with the reasonable expectation that the witness will testify to something helpful to the party’s case aside from the prior inconsistent statement).

Applying those factors to the instant case, we find that the State called Barak as a witness for the sole purpose of impeaching him with his prior inconsistent statement. The State was not surprised by Barak’s testimony denying Kirk committed the robbery. Rather, both before trial and during his proffer, Barak had either denied his brother’s involvement or claimed an inability to remember. The State acknowledged in its opening statement that it did not expect Barak to be a cooperative witness. Cf. Bartholomew v. State, 101 So.3d 888, 894 (Fla. 4th DCA 2012) (finding impeachment with prior inconsistent statement was improper where State called witness despite fact that witness had repudiated his prior statement before trial and had been uncooperative during proffer). Moreover, Barak’s prior inconsistent statement was of great substantive value to the State. A review of Barak’s entire testimony reveals that it was useful to the State’s case only for the introduction of the prior inconsistent statement. In fact, the State did not seek to elicit any testimony from Barak unrelated to his prior inconsistent statement, except for the fact that he had pled guilty to the robbery. Cf. Ruff v. State, 81 So.3d 833, 838 (Fla. 4th DCA 2010) (concluding “de minimis substantive value” factor weighed in favor of finding that State called witness for sole purpose of impeaching her where impeaching testimony was centerpiece of witness’s testimony). Thus, we conclude that the trial court erred in allowing the State to impeach Barak with his prior inconsistent statement because the State called him without having “any reasonable expectation that [he] would testify to something helpful to [its] case, aside from the inconsistent statement.” Id.

We cannot say that the introduction of Barak’s prior inconsistent statement was harmless beyond a reasonable doubt. The statement was extremely prejudicial to Kirk’s defense. In addition, the State compounded the error by referencing the content of the statement during closing argument as if it was substantive evidence of Kirk’s guilt. Accordingly, we reverse and remand for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

PALMER and LAWSON, JJ., concur.


author: ORFINGER, C.J.

text:
    David Edward CLINTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1266.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.

      David E. Clinton, Sebastian, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, C.J.

David E. Clinton appeals a trial court order on his motion for the return of personal property. This Court has jurisdiction. Fla. R.App. P. 9.130(a)(3)(C)(ii); Dismuke v. Office of State Attorney, 948 So.2d 1039, 1040 (Fla. 5th DCA 2007).

Mr. Clinton pled guilty to burglary of an occupied structure and grand theft, and was sentenced to prison followed by probation. While in prison, he filed a pro se motion for the return of property seized pursuant to a search warrant. Mr. Clinton appeared by telephone at the subsequent December 2, 2010, hearing and requested a legible copy of the search warrant inventory in order to amend his motion to include or exclude specific items. The trial court ordered the State to obtain and furnish Mr. Clinton with a legible list of the seized property within 30 days. The trial court order reflected that the hearing was to be reset within 45-60 days, but contradictorily set a hearing for January 24, 2011. A notice of hearing for the January 24th hearing was prepared in open court at the December 2nd hearing, indicating that it was sent to Mr. Clinton by mail at Calhoun Correctional Institution, where he was incarcerated.

Mr. Clinton did not appear at the January 24th hearing, at which the State filed a typed list of the seized property. The list indicated that all of the seized items had either been returned to Mr. Clinton’s mother or destroyed. The court then entered an order, stating that “State filed list of property that listed items that were previously released to mother, destroyed or still held all held items on list may be returned to defendant[.]” Unaware that the State had provided the court with a list, Mr. Clinton filed a motion to compel production of an inventory of the property seized, claiming that he never received the list that the State was ordered to produce, and requested a hearing. The trial court responded by sending Mr. Clinton a copy of the January 24, 2011, court order. Mr. Clinton then filed a motion for rehearing, stating that he did not receive notice for the January 24th hearing. Mr. Clinton attached correspondence from Calhoun Correctional Institution’s mail room, which indicated that he did not receive any legal correspondence by mail from November 29, 2010, through January 31, 2011. At the same time, Mr. Clinton filed another motion requesting an inventory of his seized property. The trial court denied Mr. Clinton’s motion for rehearing and request for an inventory of his seized property. It attached exhibits to its order, including Exhibit “B,” which purported to be Mr. Clinton’s notice of the January 24th hearing. However, Exhibit “B” was actually a notice for the initial December 2nd hearing. This appeal followed.

Trial courts possess the inherent authority to rule on motions seeking the return of property seized by law enforcement in connection with a criminal investigation once the trial court takes jurisdiction over the criminal proceedings arising from the investigation. Shade v. State, 55 So.3d 722, 723 (Fla. 5th DCA 2011); Brown v. State, 613 So.2d 569, 570 (Fla. 2d DCA 1993). When a defendant files a facially sufficient motion, the trial court may order the State to respond by citing applicable case law and attaching portions of the record to refute the defendant’s contention that the property should be returned, after which the motion may be summarily denied. Durain v. State, 765 So.2d 880, 880-81 (Fla. 2d DCA 2000). In the alternative, the trial court may hold an evidentiary hearing. Bolden v. State of Florida, 875 So.2d 780, 782 (Fla. 2d DCA 2004). At the evidentiary hearing, the trial court must first determine whether the property was seized in connection with a criminal prosecution and whether it is still in the agency’s possession. Stone v. State, 630 So.2d 660, 661 (Fla. 2d DCA 1994). If the State can show that the property was entered into evidence, that it intends to pursue forfeiture against the property, or that it intends in good faith to bring another criminal prosecution at which the items would be admissible in evidence, then the defendant is not entitled to have the property returned. Oleandi v. State, 731 So.2d 4, 6 (Fla. 4th DCA 1999); Kern v. State, 706 So.2d 1366, 1370 (Fla. 5th DCA 1998); Stone, 630 So.2d 660, 661. However, if the State is “unable to connect the items to specific criminal activity, and no one else can be identified who can demonstrate a superior possessory interest in the property, it should be returned to [the defendant] or to such person(s) as he may designate.” Stone, 630 So.2d at 661. When there are questions of fact, a defendant is entitled to notice and an opportunity to be heard at the evidentiary hearing. See Shade, 55 So.3d at 723 (remanding for evidentiary hearing as to whether seized items of personal property were properly withheld, and on remand, requiring defendant be afforded opportunity to be present and testify at hearing).

Here, there was a question of fact to be resolved, namely an itemization of the items that the State seized, and the property’s current status, as Mr. Clinton denied that his mother had taken possession of the property. Mr. Clinton was entitled to notice and an opportunity to be heard at the hearing. He was not present at the January 24th hearing through no fault of his own.

We reverse the orders and remand this matter for an evidentiary hearing on Mr. Clinton’s motion for return of property. Mr. Clinton must be afforded the opportunity to be present in person or telephoni-cally and participate in the hearing.

REVERSED and REMANDED.

GRIFFIN and EVANDER, JJ., concur.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Mendy Rae HENDERSON, Appellee.
    No. 5D12-1927.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellee.
   GRIFFIN, J.

The State of Florida appeals the downward departure sentence given to Appel-lee, Mendy Rae Henderson [“Henderson”], after a plea to driving under the influence (4th DUI), resisting an officer with violence, and driving while license cancelled, suspended or revoked with one prior DUI offense. The State contends that the trial court erred in imposing a downward departure sentence because the reasons given were not legally recognized reasons for departure. We agree and reverse.

A sentencing hearing was held on April 28, 2012. The criminal punishment code scoresheet indicated a lowest permissible sentence of 12.45 months in the Department of Corrections. At the hearing, Henderson argued for a downward departure sentence. Henderson was seeking an alternative residential program instead of jail.

The State was opposed to a downward departure sentence. The State pointed out that section 921.0026(3), Florida Statutes (2012), disallows use of substance abuse or addiction as a basis for a downward departure under any circumstances. The State also argued that section 921.0026(2)(m), Florida Statutes, did not apply because of Henderson’s resisting an officer with violence.

The trial court concluded that there was not sufficient grounds for a downward departure sentence, but believed that Henderson needed treatment. The court found:

I don’t think anybody benefits from a long prison sentence for you. And I do believe that, you know, you’ve got an addiction problem, and jail doesn’t really help with that that much. And I believe that you need treatment.

The trial court then sentenced Henderson to two years in the Department of Corrections, suspended, along with two years community control and one year of probation as to count I, and two concurrent terms of ninety days in the county jail as to counts II and III. The court also imposed numerous conditions of probation, as well as fines and costs of investigation. The State objected that the sentence imposed was, in effect, a downward departure sentence.

On April 27, 2012, another sentencing hearing was held to address the State’s objection. Henderson’s counsel argued that the trial court could consider non-statutory reasons for departing downward. Over the State’s objection, the court again imposed a downward departure sentence. The court explained:

And over objection, I’m going to find a downward departure under 921.0026. I still feel that rehabilitation is in the best interest of this defendant as opposed to the need for incarceration.
Therefore, under the — under 921.0026(2), which permits me to find a downward departure for grounds that are not necessarily limited to subpara-graphs A through M, I find that a downward departure is needed for Ms. Henderson to be appropriately rehabilitated.
I also find that alcohol is a family disease, and that the downward departure is necessary for Ms. Henderson and her son to be appropriately rehabilitated. I don’t mean just with each other, but your son, ma’am, has serious problems already, or the Court takes judicial notice that he is very likely to have serious problems as a result of your alcoholism. That’s why Alcoholics Anonymous has a separate program called Alateen. And that’s why there are publications directed to the treatment of children of alcoholics. And I find that your son needs the kind of intervention with you that would help him in his rehabilitation as well.
I also find a downward departure justified because since his father is not in the picture, he has a need for you not only for his rehabilitation but for you to be able to be supportive of him in terms of financially, physically, and mentally. More importantly, mentally and emotionally.
I find that when you are sober, that you are capable of providing that for your son. But when you’re drinking or when you are using substances, you are not. I find you genuinely remorseful. I don’t know if that’s grounds for downward departure, but I do believe you are genuinely remorseful for this period in your life. I can’t say this is what is described in the statute as an isolated event, but you did kind of go off the deep end for a period of time in which you got these three DUIs.
I find, also, that you have a lack of prior record. I don’t know that’s necessarily grounds for downward departure, but it does figure into sentencing.
Therefore, I sentence you, as I did before, to, on Count 2, resisting an officer with violence, 90-days imprisonment in the Brevard County Jail with credit for time served. The purpose of that is to teach you a lesson that you do not go hands on with a police officer.
I sentence you to, on the Count 1, felony driving under the influence, to two years of community control followed by three years of probation with drug offender conditions, which I will describe for you in a moment.
Let’s see. On the driving while license canceled, suspended, or revoked, first degree misdemeanor, I adjudicate you guilty, sentence you to 90 days incarceration in the county jail to run concurrent with Counts 1 and 2....

The State again objected to the downward departure sentence, arguing that substance abuse or addiction can never be used as a mitigating factor. The State further argued that the fact that Henderson’s son needed his mother in his life was also not a valid reason for a downward departure sentence.

The trial court expressed the view that in drafting section 921.0026(3), the legislature meant a person could not get “liquored up” and then blame their crime on their substance abuse or dependency, not that rehabilitation from a drug or alcohol addiction could not support a departure in an appropriate case. The court further explained that it was not finding a departure based on subsection (2)(m), or remorse, just that it had taken those things into account.

On May 7, 2012, the trial court entered a written order stating reasons for the downward departure sentence. The court listed the following reasons within the order:

1. The downward departure sentence is needed in order for [Henderson] to become appropriately rehabilitated.
2. The downward departure is needed in order for [Henderson] and her 10-year-old son to become appropriately rehabilitated. The Court recognizes that alcoholism is a family disease, and that [Henderson’s] minor son is at risk of developing future problems due to his mother’s alcoholism.
3. The downward departure is needed so that [Henderson] can be financially, physically, mentally and emotionally supportive of her minor son since the child’s father is not in the child’s life.

We are bound to reverse because these are not valid grounds for downward departure.

The provision of criminal penalties is a matter of predominantly substantive law determined by the legislature. State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006). The trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited. State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008).

In order to determine whether a downward departure sentence is appropriate, the trial court must follow a two-step process. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). The first step requires the court to determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it. Id.

Here, the trial court’s finding that a downward departure sentence is needed in order for Henderson to be rehabilitated from her addiction to alcohol is not a valid legal ground for a downward departure sentence. Section 921.0026(3), Florida Statutes (2012), provides:

Except as provided in paragraph (2)(m), the defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (2) and does not, under any circumstances, justify a downward departure from the permissible sentencing range.

The trial court’s interpretation of section 921.0026(3), Florida Statutes-that it precludes using substance abuse or addiction as an excuse for criminal conduct justifying a downward departure, but does not preclude a downward departure for rehabilitation—is a reasonable and sensible interpretation of the statute. The positive features of such an interpretation may be many, as this case illustrates. However, this Court and other courts have read section 921.0026(3) to mean that substance abuse or addiction cannot be the basis of a downward departure, even if couched in terms of rehabilitation. State v. Thompson, 844 So.2d 814 (Fla. 5th DCA 2003); State v. Owens, 848 So.2d 1199, 1202 (Fla. 1st DCA 2003); see State v. Ford, 739 So.2d 629, 629 (Fla. 3d DCA 1999).

The trial court’s other non-statutory departure ground—that a downward departure was needed so that Henderson could be financially, physically, mentally and emotionally supportive of her minor son, who himself was at risk due to his mother’s addiction — is also an invalid basis for departure. The fact that a defendant has a minor child requiring care and support has previously been rejected as grounds for downward departure. See State v. Knox, 990 So.2d 665, 669 (Fla. 5th DCA 2008) (citing Rafferty v. State, 799 So.2d 248, 248 (Fla. 2d DCA 2001)).

Because each of the nonstatutory sentencing mitigators applied failed to comport with legislative sentencing policies as interpreted by Florida courts, they are insufficient to support Henderson’s downward departure sentence.

REVERSED and REMANDED.

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

      . Henderson finally contends that the court has the discretion to place a defendant on community control or probation because the DUI statute allows for alternative sentencing under section 948.01 Florida Statutes. She points out that other statutes specifically prevent the trial court from using section 948.01 to reduce a sentence to probation or community control, but the DUI statute does not. She is correct that the DUI statute does not appear to prohibit alternative sentencing under section 948.01, Florida Statutes. However, Henderson has pled guilty to resisting an officer with violence, a forcible felony that is precluded from alternative sentencing pursuant to section 948.0 l(7)(a), Florida Statutes.


text:
    Donna R. WENDLER, et al., Appellant, v. CITY OF ST. AUGUSTINE, Florida, Appellee.
    No. 5D12-2563.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.

      Andrew Prince Brigham, of Brigham Property Rights Law Firm PLLC, Jacksonville, for Appellant.
    Isabelle C. Lopez, Office of the City Attorney, St. Augustine, for Appellee.
   ORFINGER, C.J.

Donna R. Wendler, Scott Wendler, and Wendler Properties III, Inc. (collectively, “the Wendlers”), brought this action against the City of St. Augustine under the Bert J. Harris, Jr., Private Property Rights Protection Act, section 70.001, Florida Statutes (2010) (“Harris Act”). The trial court found the action was untimely and dismissed the complaint with prejudice. We reverse.

Between 1998 and 2006, the Wendlers purchased eight parcels of real property in St. Augustine, Florida (the “Wendler Property”). The Wendler Property contains seven structures built between 1910 and 1930, and is located in a National Register of Historic Places District. When purchasing the property, the Wen-dlers knew that the parcels were subject to city ordinance, section 28-89, City of St. Augustine Municipal Code (“the Ordinance”), which regulates the demolition or relocation of certain historic structures. In 2002, the City revised the Ordinance by expanding the list of regulated structures to include homes at least 50 years old. The amendment also extended the waiting period for a demolition permit from six months to one year. In 2005, the City again amended the Ordinance, authorizing the City’s Historic Architectural Review Board (“HARB”) to deny demolition or relocation requests indefinitely for three types of structures, including those considered “contributing property to a National Register of Historic Places District.”

The Wendlers used the structures on their property as residential rentals, but based on their view of changing market conditions, decided to convert the properties to a commercial use. To that end, on September 28, 2007, the Wendlers submitted applications to demolish the seven structures pursuant to the Ordinance and to rezone all eight parcels to allow for a commercial use. On December 5, 2007, HARB denied all seven demolition permit requests, finding that six of the seven structures were contributing historic structures to the National Register Historic Places District, that the removal of the structures would be detrimental to the historic and architectural character of the City, and that the Wendlers had not proven undue economic hardship or adequate justification for the demolition, as required by the Ordinance. The Wendlers timely appealed the denial orders to the City Commission. After a hearing, the City Commission entered its order affirming HARB’s orders and denying the Wendlers’ rezoning application. The Wendlers challenged the City’s denial by filing a timely petition for a writ of certiorari and a complaint for declaratory and injunctive relief, but voluntarily dismissed the action on April 5, 2010.

The following month, the Wendlers submitted a Harris Act claim to the City. The Harris Act allows property owners to be compensated by a governmental entity if a government regulation inordinately burdens an existing or vested property right. § 70.001, Fla. Stat. (2010). On October 26, 2010, the City responded with its written offer of settlement and a ripeness decision. The Wendlers rejected that offer, and instead, on July 14, 2011, filed their action in the circuit court under the Harris Act. Relying on our decision in Citrus County v. Halls River Development, Inc., 8 So.3d 418 (Fla. 5th DCA 2009), the trial court found the Wendlers’ complaint was untimely and dismissed their case with prejudice. The Court reasoned that the impact of the 2005 amendment to the Ordinance was readily ascertainable to owners of structures within the scope of the Ordinance, including the Wendlers. As a result, the court determined that the Wen-dlers had one year from the date of the enactment of the 2005 amendment to the Ordinance to file their Harris Act claim against the City, which they did not do. This appeal followed.

We review de novo a trial court’s order dismissing a complaint with prejudice. GLK, L.P. v. Four Seasons Hotel Ltd., 22 So.3d 635, 636 (Fla. 3d DCA 2009); Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400, 402 (Fla. 3d DCA 2009); see Airey v. WalMart/Sedgwick, 24 So.3d 1264, 1265 (Fla. 1st DCA 2009) (reiterating that where pertinent facts are undisputed, issue is one purely of law, subject to de novo review).

The Harris Act, enacted in 1995, created a new cause of action allowing property owners who suffer inordinate regulatory burdens to existing or reasonably foreseeable land uses to be compensated by the governmental entity creating the burden. § 70.001(1), (2), (5)(a), Fla. Stat. (2010). The law focuses on protecting real property owners’ rights to existing uses and vested rights to specific uses of their property. Halls River, 8 So.3d at 419. The terms “inordinate burden” or “inordinately burdened” are defined in the Harris Act to mean a specific action by a governmental entity that directly restricts or limits the use of real property. Id. at 421.

A Harris Act claim must be presented within one year from the time the law or regulation is first applied by the governmental entity to the subject property. § 70.001(11), Fla. Stat. (2010) (emphasis added). At least 180 days prior to filing a lawsuit, the owner must submit a presuit notice to the appropriate governmental entity. § 70.001(4)(a), Fla. Stat. (2010). Following receipt of the presuit notice, the government has 180 days to consider its options, which include retracting or modifying its action, taking no action, or granting relief in a variety of ways and making an offer to settle. § 70.001(4)(c), Fla. Stat. (2010). Before this 180-day period expires, unless a settlement offer is accepted by the property owner, the governmental entity is required to issue a written “ripeness” decision, identifying the allowable uses for the property. § 70.001(4)(a), (5)(a), Fla. Stat. (2010). “The ripeness decision, as a matter of law, constitutes the last prerequisite to judicial review, and the matter shall be deemed ripe or final for the purposes of the judicial proceeding created by this section, notwithstanding the availability of other administrative remedies.” § 70.001(5)(a), Fla. Stat. (2010); Halls River, 8 So.3d at 420. After receiving the ripeness decision, the property owner may file an action for damages. § 70.001(5)(b), Fla. Stat. (2010). Failure to comply with these procedural requirements will result in a dismissal of the lawsuit. See Sosa v. City of West Palm Beach, 762 So.2d 981 (Fla. 4th DCA 2000) (holding that complaint must be dismissed where property owner failed to comply with prerequisites for bringing suit under Harris Act). Provided that the procedural requirements of the Harris Act are satisfied, the court then determines whether an existing or vested use exists and whether the regulation has “inordinately burdened” the real property. If the court so finds, a jury determines the amount of damages suffered by the property owner. § 70.001(6), Fla. Stat. (2010). The question we must answer is when did the clock begin to run on the Wendlers’ ability to file the Harris Act claim with the City and the action with the court.

In Halls River, a property owner was advised by Citrus County staff that a condominium project could be developed on the owner’s land, even though the project was inconsistent with the county’s comprehensive plan which limited the property to one housing unit per twenty acres of land. When the county ultimately rejected the project, the owner brought a Harris Act action against the county in court. The county contended that the suit was untimely. 8 So.3d at 415-19. The owner argued that since the Harris Act only allows as-applied challenges, the mere enactment of a statute, ordinance or plan of general application, could not trigger the accrual of a Harris Act claim. The owner contended that until a development plan was submitted and rejected, the impact of the governmental regulation could not be determined. Id. at 422.

In that case, we agreed that there are some instances when the impact of a governmental regulation cannot be determined prior to the submission of an actual development plan. For example, the impact of a generally applicable development standard discouraging urban sprawl may not be readily apparent. On the other hand, we observed that if a comprehensive plan was a clear height or density limitation, the impact on a given parcel of property can immediately be determined. Id. at 422-23. Consequently, we held that if the impact of a new law or regulation is “readily ascertainable” to the property owner, a claim must be made against the local government within one year of that new regulation’s enactment in order to preserve the right to timely file an action in court founded in the Harris Act. Id. at 423.

Applying the holding of Halls River here, we conclude the impact of the 2005 amendment to the Ordinance was not readily ascertainable to the Wendlers in 2005. The Ordinance, as amended, put property owners on notice of the procedure they must follow when applying for a permit for demolition or relocation of any of the three building types newly designated in the amendment and sets forth the general standards for the demolition or relocation of historic structures. However, these provisions constituted only general restrictions that applied to the Wen-dlers’ structures, just as they potentially applied to other structures in the historic district. Given the significant discretion retained by the City to grant or deny a demolition or relocation request, the impact of the Ordinance, as amended, was not reasonably ascertainable to property owners, including the Wendlers at the time of enactment. The Ordinance was a generally applicable development standard, not an objective, readily determined standard as was present in Hall’s River. As such, we conclude that the impact .of the Ordinance was not readily ascertainable until the Wendlers’ demolition applications were denied on December 5, 2007.

Still a question remains regarding the timeliness of the complaint filed on July 14, 2011. Section 70.001(11), Florida Statutes (2010), provides:

A came of action may not be commenced under this section if the claim is presented more than 1 year after a law or regulation is first applied by the governmental entity to the property at issue. If an oumer seeks relief from the governmental action through lawfully available administrative or judicial proceedings, the time for bringing an action under this section is tolled until the conclusion of such proceedings.

(emphasis added). The Wendlers argue that tolling under the Harris Act applies to the presentation of a claim "with the City, and not to the filing of the cause of action in court. In contrast, the City interprets section 70.001(11) as providing an affected property owner the option of filing a claim with the appropriate government entity within one year of the permit denial or choosing to litigate the permit denial issue, thereby, foregoing the “claim” route, and then subsequently filing a Harris Act cause of action within one year after that litigation is concluded.

In Halls River, we held that filing a claim with the appropriate government entity within the one-year period was a pre-suit condition to filing a lawsuit. We did not address the applicable limitation period for filing a lawsuit under the statute. In Russo Associates, Inc. v. City of Dania Beach Code Enforcement Board, 920 So.2d 716 (Fla. 4th DCA 2006), the Fourth District Court addressed that issue, holding that the statute of limitations to file suit under the Harris Act is four years, and begins from the date of the government action, which acts as the ordinate burden.

We agree with the analysis in Russo. Consequently, under section 95.11(3)(f), Florida Statutes (2010), the Wendlers had four years (plus any tolling time) to file their complaint under the Harris Act. HARB denied the Wendlers’ demolition permits on December 5, 2007, first applying the Ordinance to the Wendler Property. The Wendlers timely presented their Harris Act claim to the City on May 11, 2010. Given the tolling provision found in section 70.001(11), only six months had elapsed (five months between the time of the citation and the first challenge in circuit court on May 23, 2008, and one month between their voluntary dismissal of the petition for writ of certiorari (April 5, 2010), and the presentation of the claim to the City), when the Wendlers filed their Harris Act claim. The Wendlers then timely filed their Harris Act action on July 14, 2011, well before the four-year period ended. See Russo, 920 So.2d at 718.

Because the Wendlers’ Harris Act claim and action were timely filed, we reverse the final judgment dismissing their suit and remand for further proceedings.

REVERSED AND REMANDED.

SAWAYA and COHEN, JJ., concur.

      . The Legislature substantially amended section 70.001, effective July 1, 2011. See ch. 2011-191, §§ 1 & 3, Laws of Fla. The amendments "apply prospectively only and do not apply to any claim or action filed under s. 70.001, Florida Statutes, which is pending on the effective date of this act (July 1, 2011).” Ch. 2011-191, § 2, Laws of Fla.

      . The Wendlers hoped to rezone the property to a Planned Unit Development ("PUD”), allowing for an 80-room boutique hotel with a restaurant, an art gallery, and an underground garage for parking. If unable to obtain a PUD zoning, the Wendlers proposed a multiple building cluster, comprising of an integrated 50-room hotel with a restaurant and bed-and-breakfast/guest homes, consistent with the parcels’ present zoning.

      . Citing Munnerlyn v. Wingster, 825 So.2d 481 (Fla. 5th DCA 2002), the City argues that this Court should apply an abuse of discretion standard of review because the court found that it lacked subject matter jurisdiction to consider the Harris Act lawsuit. In Munner-lyn, this Court indicated that "[a] trial court's determination of subject matter jurisdiction is subject to an abuse of discretion standard of review." 825 So.2d at 482 (citing Birnbaum v. Birnbaum, 615 So.2d 241, 242 (Fla. 3d DCA 1993) ("[Tjhe trial court did not abuse its discretion or authority in concluding it was vested with subject matter jurisdiction to proceed on the issue of custody.”)). Both Munnerlyn and Bimbaum involved jurisdictional issues arising under the Uniform Child Custody Jurisdiction Act (UCCJA). Specifically, the appellate courts were asked to review factual determinations made by the trial courts concerning a child’s home state for the purpose of UCCJA litigation.
      In Bilbrey v. Myers, 91 So.3d 887, 891 (Fla. 5th DCA 2012), this Court reiterated the rule that matters regarding subject matter jurisdiction are generally reviewed de novo. A court’s subject matter jurisdiction, or its power to hear a controversy, is generally tested by the good-faith allegations in the complaint and is not dependent upon the ultimate disposition of the lawsuit. Calhoun v. N.H. Ins. Co., 354 So.2d 882, 883 (Fla.1978). Consequently, because the question of whether a court has jurisdiction to hear a case generally involves a question of law, our review is de novo. See Metro-Dade Invs., Co. v. Granada Lakes Villas Condo., Inc., 74 So.3d 593, 594 (Fla. 2d DCA 2011); Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005); Jacobsen v. Ross Stores, 882 So.2d 431, 432 (Fla. 1st DCA 2004); Seven Hills, Inc. v. Bentley, 848 So.2d 345 (Fla. 1st DCA 2003); see also Gonzalez-Oropeza v. U.S. Atty. Gen., 321 F.3d 1331, 1332 (11th Cir.2003) (stating that subject matter jurisdiction is reviewed de novo); Hebert v. United States, 53 F.3d 720, 722 (5th Cir.1995) ("We review de novo a district court’s granting of a motion to dismiss for lack of subject matter jurisdiction.”); Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005) ("Whether a court has subject matter jurisdiction is a question of law reviewed de novo.”).

      . But see M & H Profit, Inc. v. City of Panama City, 28 So.3d 71, 76 (Fla. 1st DCA 2009) (holding that "until an actual development plan is submitted, a court cannot determine whether the government action has ‘inordinately burdened' property”).

      . But see Turkali v. City of Safety Harbor, 93 So.3d 493, 494 (Fla. 2d DCA 2012) ("The [Harris] Act provides that the action must be filed within one year of the application of the ordinance to the subject property. § 70.001(11).” (emphasis added)).


text:
    Curtis James HARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3312.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.

      Deana K. Marshall, of The Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Curtis James Harrell appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We agree with the trial court that the majority of Harrell’s claims are conclusively refuted by the record. However, as a portion of Harrell’s second claim was not refuted by the record, we reverse as to that issue only.

In 2008, following a jury trial, Harrell was found guilty of two counts of sexual battery with a deadly weapon or physical force, one count of burglary of a dwelling with an assault or battery, and one count of false imprisonment with a weapon. Harrell had known the victim for a number of years, and maintains that he and the victim had a consensual sexual encounter on the night in question. In his second claim, Harrell alleged that his trial counsel was ineffective for failing to call witness Kenneth Campbell to testify at trial. According to Harrell’s allegations, Campbell was available for trial and would have testified that the victim was a known prostitute who routinely traded sex for drugs or money with Harrell and other men, and that the victim admitted to him that she had falsely accused Harrell of rape because he “refused to give her more drugs and money when she asked for it.” Harrell also alleged that Campbell would have testified that when he told the victim that what she was doing was wrong, she responded that Harrell “should not have tried to play her.”

The trial court concluded that Harrell’s counsel was not ineffective for failing to call Campbell to testify that the victim was a known prostitute because this testimony would not have been admissible, citing to Esteban v. State, 967 So.2d 1095 (Fla. 4th DCA 2007). However, as recognized in Esteban, evidence that the victim was a prostitute may be admissible if it is offered to show the victim consented to sex with the defendant. Id; see also Robinson v. State, 575 So.2d 699, 702 (Fla. 1st DCA 1991) (“evidence of prostitution may well have a bearing on the issue of consent where the defendant’s defense is that the sexual encounter which he had with the victim was in connection with an act of prostitution”). The showing that a defendant must make before admission of evidence of prostitution in this context is explained in both Esteban and Robinson, and the record attachments to the trial court’s order in this case do not demonstrate that Campbell’s testimony would have been inadmissible.

Additionally, the trial court did not address Harrell’s claim that Campbell would have testified to admissions made by the victim that her testimony in this case was false, and explaining her motive to lie. On appeal, the State dismisses these statements as inadmissible hearsay. However, it appears based upon this limited record that the testimony would be non-hearsay and admissible to show bias under section 90.608(2), Florida Statutes. See, e.g., Kearney v. State, 689 So.2d 1310 (Fla. 5th DCA 1997) (finding testimony that victim’s father made a statement that once defendant was out of the way the family would be back together and happy again was not hearsay and would have shown bias or motive on the part of the victim’s father); Alvarez v. State, 817 So.2d 1037 (Fla. 3d DCA 2002) (finding testimony of victim’s friend that victim stated “[the victim’s] father was paying her off to say [defendant] was molesting her” was not hearsay because it was not offered to prove the truth of its contents).

Accordingly, we reverse as to these aspects of Harrell’s second claim, and affirm the summary denial order in all other respects. We remand for additional proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

TORPY, LAWSON and BERGER, JJ., concur.


text:
    Darnell M. TILLMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-400.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    Darnell M. Tillman, Malone, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No.2000-CF-6105, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, PALMER and JACOBUS, JJ., concur.


text:
    Keith Shawn IRVING, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-320.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    Daniel D. Mazar, Winter Park, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying his petition for writ of habeas corpus entered December 21, 2012, in case no. 98-CF-28(03), in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, CJ., GRIFFIN, and COHEN, JJ., concur.


text:
    Lavender Denise PERKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-284.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    Lavender Denise Perkins, Ocala, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying her motion for post conviction relief, filed December 10, 2012, in Case Nos. CF08-1531 and CF07-1651, in the Circuit Court in and for St. Johns County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, PALMER, and JACOBUS, JJ., concur.


text:
    Travis Dean STONE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-256.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    Blaise Trettis, Public Defender, and Tamara Meister, Assistant Public Defender, Viera, for Appellant.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed ■with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No., 05-2011-CF-023116-A in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, C.J., EVANDER, JACOBUS, JJ., concur.


text:
    Benjamin ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2205.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

The issue raised on appeal is the trial court’s consideration of Robinson’s continued protestation of innocence and lack of remorse at sentencing. Acknowledging the State’s implicit concession of error, we reverse for resentencing before a different judge.

Robinson represented himself at trial on a charge of selling cocaine within 1000 feet of a place of worship. A review of the transcript reflects the trial judge was immensely patient with an obstreperous defendant. Despite the fact that Robinson had been convicted of the first-degree felony and had been dealing drugs since the mid-1980s, the judge imposed a sentence of five years in the Department of Corrections — well below the thirty-year statutory maximum. At sentencing, Robinson maintained his innocence. The court, prompted by the assistant state attorney, noted, “You’ve never expressed, as the State has indicated, any remorse and still claim you were innocent. I don’t believe that claim for a second.”

It is improper for a sentencing court to factor into sentencing the fact that a defendant has maintained his innocence. Jiles v. State, 18 So.3d 1216, 1216 (Fla. 5th DCA 2009). It is also generally improper for the sentencing court to consider the defendant’s lack of remorse. See Green v. State, 84 So.3d 1169, 1171 (Fla. 3d DCA 2012); but see St. Val v. State, 958 So.2d 1146, 1147 (Fla. 4th DCA 2007) (holding court may consider defendant’s lack of remorse where defendant does not contest his commission of crime at sentencing). Thus, we are compelled to reverse and remand for resentencing before a different judge.

REVERSED and REMANDED.

GRIFFIN and BERGER, JJ., concur.

      . The trial court properly renewed an offer of counsel at sentencing, which was accepted by Robinson.

      . The sentencing guidelines allowed for a sentence as short as 32.4 months.


text:
    Larry STEINBERG, Appellant, v. John MOORE and Efloor-Trade, LLC, et aL., Appellee.
    No. 5D12-2103.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    Gavin T. Elliott, The Elliot Legal Group, P.A., Orlando, for Appellant.
    Karen Wonsetler, of Karen Wonsetler, P.A., Orlando, and Whitney C. Gibson and Colleen M. Devanney, of Vorys, Safer, Seymour & Pease, LLP, Cincinnati, Ohio, for Appellee.
   GRIFFIN, J.

We find no error reversible on appeal and affirm, except for one issue that will require correction or clarification below. The second of the two injunctions issued by the trial court is denominated a “permanent injunction.” The terms of the injunction, however, suggest that it is intended to be a temporary injunction, and appellees agree that the injunction is a temporary one. Rather than address this matter with the trial court below, however, appellants elected immediately to appeal. Appellees attempted to cure the problem by filing a motion to correct a scrivener’s error in the trial court, but they represent in their brief that they were unable to obtain the cooperation of the appellant to secure a hearing time before the trial judge prior to the filing of the notice of appeal. This matter does require correction or clarification by the trial court as to its intent. Accordingly, we remand to the trial court for further proceedings consistent with this opinion.

AFFIRMED; REMANDED for correction or clarification of order.

EVANDER and BERGER, JJ., concur.


text:
    Ryan BATCHELOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1733.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Ryan Batchelor appeals his conviction for possession of oxycodone, entered following his plea to the charge during which he reserved the right to appeal the trial court’s denial of his dispositive motion to suppress. Following an evidentiary hearing, the trial court denied Batchelor’s suppression motion without making any findings.

On appeal, Batchelor first argues that the initial stop of his vehicle was unlawful because the BOLO to which the arresting officer was responding was too vague (merely referencing a white sedan with no additional details) to justify an investigatory stop. See, e.g., Hunter v. State, 660 So.2d 244, 249 (Fla.1995) (When assessing whether a “be-on-the-lookout” alert sufficiently justifies an investigatory stop, courts consider: “(1) the length of time and distance from the offense; (2) route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information.”). We need not address this issue because we find that the facts adduced at the eviden-tiary hearing do not even suggest any legal basis for the search of Batchelor’s vehicle, which quickly followed the stop (and during which police found and seized drug paraphernalia from a container in the passenger compartment of the vehicle).

Shortly after searching Batchelor’s vehicle, police testified that they confronted Batchelor with the drug paraphernalia found therein, and then secured Batche-lor’s consent to search his person (during which they discovered the five oxycodone tablets that served as the basis for the charge to which Batchelor pled). The State’s attempt to rely on Batchelor’s consent to justify the search of his person under these circumstances is clearly misplaced. See Turner v. State, 674 So.2d 896, 897 (Fla. 5th DCA 1996) (“A consent to search given after illegal police conduct is presumptively tainted and is deemed involuntary absent ‘clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action.’”) (quoting Norman v. State, 379 So.2d 643, 647 (Fla.1980)). On this record, there was no proof of a break in the chain of illegality sufficient to dissipate the taint of the illegal vehicle search.

Accordingly, we reverse and remand with directions that Batchelor’s motion to suppress be granted.

REVERSED AND REMANDED.

TORPY, LAWSON and BERGER, JJ., concur.