text:
    Derrick James HAYWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4217.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2014.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case was remanded by the Florida Supreme Court to this court for reconsideration of our prior opinion, Haywood v. State, 73 So.3d 824 (Fla. 5th DCA 2011), in light of the supreme court’s holdings in Blackmon v. State, 121 So.3d 535 (Fla.2013), and Williams v. State, 121 So.3d 524 (Fla.2013). Haywood v. State, No. SC11-2354, 2014 WL 4413043 (Fla. Sept. 8, 2014).

Defendant was charged with dealing in stolen property, third-degree grand theft, and receiving money from a pawnbroker by false verification of ownership or identification. At trial, Defendant requested that the jury be given the following special jury instruction based on section 812.025, Florida Statutes (2009):

Defendant is charged in count one of the information with Dealing in Stolen Property (trafficking) and in count two of the information with Grand Theft. “... the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.”

The trial court denied the instruction on the ground that it would have a tendency to mislead the jury as to what counts of the Information it should consider and advised that, should the jury return a verdict of guilty on both the dealing in stolen property and grand theft counts, it would deal with the issue at that time. When the jury found Defendant guilty as charged of all counts, the trial court’s solution was to not adjudicate Defendant of the lesser offense (grand theft). In light of Williams, this was error.

Section 812.025 is clear that the trier of fact cannot find a defendant guilty of both dealing in stolen property and the theft of that same property:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

§ 812.025, Fla. Stat. (2009). Although the standard jury instruction in effect at that time failed to inform the jury that it could not find a defendant guilty of both dealing in stolen property and theft in connection with one scheme or course of conduct, “trial courts have an obligation to instruct the jury on section 812.025 when both theft and dealing in stolen property counts are submitted to the jury.” Williams, 121 So.3d at 531. Defendant unsuccessfully requested such an instruction, thereby placing the burden on the State to prove the error in denying the request was harmless. Id. at 534. The State has not met its burden in this case.

Our review of the record shows that the items taken from the victim of the grand theft are the same items Defendant pawned, thus fulfilling the nexus requirement that the offenses were in connection with one scheme or course of conduct. As Defendant asserts, had the jury been properly instructed, it may have found Defendant guilty of only the lesser offense, grand theft. Hence, the error in not giving the requested instruction cannot be deemed harmless. Accordingly, Defendant is entitled to a new trial on the charges of dealing in stolen property and grand theft.

REVERSED and REMANDED for a new trial.

SAWAYA, LAWSON, and COHEN, JJ„ concur.

      . In In re Standard Jury Instructions in Criminal Cases — Instruction 14.2, 121 So.3d 520, 523 (Fla.2013), the supreme court authorized the use of the following revision to the standard instruction in light of Williams v. State, 121 So.3d 524 (Fla.2013):
      If you find that both theft and dealing in stolen property were proven by the State, and the offenses were in connection with one scheme or course of conduct, then the defendant must be convicted of either theft or dealing in stolen property. In making your decision, you must determine whether the defendant is more of a common thief or more of a trafficker. This determination rests on the defendant’s intended use of the stolen property. The defendant is a "common thief” if [he][she] had the intent to appropriate the property to [his] [her] own use or to the use of any person not entitled to the use of the property. The defendant is a "trafficker” if [he][she] had the intent to traffic in the stolen property. If you find the defendant more of a "common thief,” then you are to find the defendant guilty of theft only. If you find the defendant more of a "trafficker,” then you are to find the defendant guilty of dealing in stolen property only.
      Subsequently, in In re Standard Jury Instructions in Criminal Cases — Instruction 14.2, 140 So.3d 992 (Fla.2014), the supreme court adopted the language.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Karen CHAGNON, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2737.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2014.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Karen Chagnon, appeals her convictions of both felony petit theft and hiring a vehicle with the intent to defraud. Appellant claims that double jeopardy precludes her from being convicted of both offenses. Appellant also claims there is no authority to assess a fine when sentenced as a habitual felony offender; the State concedes this issue. We reverse and remand to remove the conviction for petit theft and remove the fine.

Appellant hired a taxi with the intent not to pay for the service. She was charged and convicted of hiring a vehicle with intent to defraud under section 817.52(2), Florida Statutes (2012). Based on this incident, she was also convicted of felony petit theft under section 812.014, Florida Statutes (2012). Because the present conviction was her third such offense, she was designated a habitual felony offender. On appeal, Appellant argues that she cannot be convicted on both charges because all of the elements of hiring a vehicle with intent to defraud are subsumed within the general theft statute and therefore double jeopardy applies.

We review a claim of double jeopardy de novo. Bailey v. State, 21 So.3d 147, 149 (Fla. 5th DCA 2009). The Block-burger test, as codified in section 775.021(4)(a), Florida Statutes (2014), considers offenses to be separate if “each offense requires proof of an element that the other does not.”

Here, Appellant’s conviction for hiring a vehicle with the intent to defraud required the State to establish that: (1) Appellant hired a taxi, (2) which was owned by or in possession of another, (3) with the intent not to remit payment. The elements of the petit theft crime required the State to establish that: (1) Appellant unlawfully obtained the use of property belonging to another — the taxi, (2) with the intent to deprive the owner of a benefit therefrom and did appropriate said property for her own use — the taxi fare. Thus, although petit theft does not require the hiring of a taxi, the remaining elements are the same.

In Rios v. State, 660 So.2d 795, 796 (Fla. 5th DCA 1995), this court found that “[a]l-though the elements of the failure to return a hired vehicle crime and the theft crime are not the same, it is clear that the specific crime regarding a hired vehicle is generally included in the general theft statute.” Accordingly, we held that only one offense was committed. Id.

In the case before us, the specific crime regarding the hiring of a vehicle with intent to defraud is included in the general theft statute. We, therefore, find that only one offense was committed. We reverse and remand for the trial court to vacate the conviction and sentence on the petit theft charge and vacate the fine relating to the habitual felony offender status.

REVERSED AND REMANDED with instructions.

SAWAYA, COHEN, JJ., and HARRIS, C.M., Senior Judge, concur.

      . A trial court is not authorized to impose a fine under section 775.083, Florida Statutes, when defendant sentenced as a habitual offender under section 775.084, Florida Statutes. See King v. State, 681 So.2d 1136, 1139-40 (Fla.1996).

      . Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: BERGER, J.

text:
    STATE of Florida, Appellant, v. Jermaine D. ENGLISH, Appellee.
    No. 5D13-3398.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellee.
   BERGER, J.

The State of Florida appeals an order granting Jermaine D. English’s motion to suppress. We reverse.

The facts are not in dispute. English was stopped by two Orlando police officers after they noticed that the tag light on the vehicle that he was driving, along with its attached wires, was hanging down in front of the license plate, obstructing the officers’ view of the plate and rendering at least one letter on it unreadable. The tag became readable, only momentarily, when the vehicle turned and caused the wires to shift. However, after the turn, when the wires shifted back, the view of the tag was obstructed again.

Based on the single fact that the tag became unobstructed temporarily during a turn, the trial court granted English’s motion to suppress, concluding:

Under the other — under obstruction, there’s a case ... saying that once you are able to read the actual numbers, that it’s no longer a violation. So even if you get out of your car and walk to the car, as soon as you can see the numbers, then that satisfies your need for your probable cause. So with that, I am going to grant the suppression.

This was error.

“All that is required for a valid vehicle stop is a founded suspicion by the officer that the driver of the car, or the vehicle itself, is in violation of a traffic ordinance or statute.” Davis v. State, 788 So.2d 308, 309 (Fla. 5th DCA 2001). Section 316.605(1), Florida Statutes, provides in pertinent part:

Every vehicle, at all times while driven, stopped, or parked upon any highways, roads, or streets of this state ... shall, ... display the license plate ... in such manner as to prevent the plates from swinging, and all letters, numerals, printing, writing, and other identification marks upon the plates regarding the word “Florida,” the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front. ... A violation of this subsection is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.

§ 316.605(1), Fla. Stat. (emphasis added). Based on the plain reading of the statute, the alphanumeric designation on the license plate must be plainly visible at all times. Here, according to the testimony of the officers, which the trial court found reliable, English’s tag was not in compliance with the statute. As such, the officers had the authority to conduct a traffic stop in this case. See Wright v. State, 471 So.2d 155, 156-57 (Fla. 3d DCA 1985) (finding that officer charged with enforcing motor vehicle laws had the duty and authority to investigate why a vehicle that was parked in the roadway had its license tag partially obscured with a dirty rag, in violation of the law). But see Harris v. State, 11 So.3d 462, 463-64 (Fla. 2d DCA 2009) (finding that police officers who were unable to read defendant’s license plate because of a trailer hitch properly attached to the vehicle lacked authority to perform a traffic stop, because matters external to the tag, such as trailer hitches, bicycle racks, handicap chairs, u-hauls, and the like were not “other obscuring matter”).

Because we conclude that English’s vehicle was properly stopped pursuant to a violation of section 316.605(1), we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

PALMER and LAWSON, JJ., concur.

      . It appears that the trial court inadvertently relied on State v. Diaz, 850 So.2d 435 (Fla.2003) to support its ruling. However, Diaz involved a stop based on the officer's inability to read the expiration date on a temporary tag. Id..', see also § 320.131(4), Fla. Stat. There, the Florida Supreme Court determined that once the deputy was satisfied that the temporary tag was valid, the reason for the stop was satisfied, and the deputy had no justification for further detention, other than giving an explanation for the stop. Diaz, 850 So.2d at 440. In so ruling, the court made the following distinction between the temporary and permanent tag statutes:
      The Florida statute regulating temporary license tags provided: "Temporary tags shall be conspicuously displayed in the rear license plate bracket or attached to the inside of the rear window in an upright position so as to be-clearly visible from the rear of the vehicle." § 320.131(4), Fla. Stat. (2000) (emphasis added). While the Legislature has required that permanent license plates must be "plainly visible and legible at all times 100 feet from the rear or front,” § 316.605(1), Fla. Stat. (2000), the Legislature has failed to mandate a distance at which temporary tags must be fully legible. Notably, the temporary tag statute does not specifically require that the expiration date be legible, and it is the State itself which creates and issues the temporary license tag. See § 320.131(1), (4), Fla. Stat. (2000).

        Id. at 437.


author: LAWSON, J.

text:
    Damiroquan McGILL, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4552.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2014.
    Allan Campbell, Lake Mary, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Damiroquan McGill appeals his twelve-year sentence for possession of a firearm by a delinquent, which was direct filed and adjudicated in adult court. Although the sentence was below the statutory maximum penalty, McGill correctly argues that the sentencing court violated his due process rights by basing his sentence, at least in part, on improper considerations. See Yisrael v. State, 65 So.3d 1177, 1178 (Fla. 1st DCA 2011) (stating that “[cjonsider-ation of pending or dismissed charges during sentencing results in a denial of the defendant’s due process rights”); Crouse v. State, 101 So.3d 901, 903 (Fla. 4th DCA 2012), (stating that while a sentencing court may consider “any and all information that reasonably might bear on the proper sentence,” it may not consider such constitutionally improper factors as “unsubstantiated allegations of misconduct” (citations omitted)); cf. Jansson v. State, 399 So.2d 1061, 1064 (Fla. 4th DCA 1981) (stating that “a trial court can consider a defendant’s prior arrests not leading to convictions for purposes of sentencing so long as the court recognizes that these arrests are not convictions or findings of guilt, and the defendant is given an opportunity to explain or offer evidence on the issue of his prior arrests”). In this case, the judge’s comments indicate that the sentence was influenced by the judge’s belief that McGill had committed acts of robbery, based solely upon unsubstantiated allegations and prior charges that had not resulted in convictions. In addition, the judge indicated that the sentence was influenced by a belief that McGill was affiliated with a gang. Although this is a proper sentencing consideration, Crouse, 101 So.3d at 903, the trial judge improperly relied upon unsubstantiated allegations of McGill’s gang involvement in the form of objected-to hearsay from a police detective. Id.-, see also Jackson v. State, 588 So.2d 1085, 1086 (Fla. 5th DCA 1991) (“Once the truth of the hearsay information presented at the sentencing hearing was specifically disputed, the state was obligated to carry its burden of corroborating the accuracy of the [information].” (citation omitted)).

We reverse McGill’s sentence and remand for a de novo sentencing hearing before a different judge.

REVERSED AND REMANDED FOR RESENTENCING.

PALMER and WALLIS, JJ., concur.


author: DAVIS, Chief Judge.

text:
    Harrison Bradley MARGOLIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4943.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2014.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   DAVIS, Chief Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Harrison Bradley Margolis challenges the revocation of his probation and the resulting sentence for his underlying conviction of aggravated child abuse. He admitted to the violations. We affirm the revocation and sentence without further comment. We write only to note that the order of revocation contains a scrivener’s error in that it indicates that Margolis admitted to violating conditions “2, 7, [and] 50” of his probation. According to the record on appeal, Margol-is was alleged to have violated and admitted to violations of conditions 2, 7, and 35 of his probation. We therefore remand for the limited purpose of the entry of a corrected order of revocation to accurately reflect the conditions of probation Margol-is admitted to violating. See Green v. State, 956 So.2d 1278, 1278 (Fla. 2d DCA 2007).

Affirmed but remanded.

KHOUZAM and MORRIS, JJ., Concur.


author: SLEET, Judge.

text:
    WELLS FARGO BANK, N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006 Frei Asset-Backed Pass-Through Certificates, Appellant, v. Calvin M. RUTLEDGE; Bruce Dias; Harbor Towers Owners Association, Inc.; Mary Lynne Dias; Unknown Tenant(s) Possession of the Subject Property, Appellees.
    No. 2D13-3192.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2014.
    Curtis Herbert and Desiree B. McCarthy of Brock & Scott, PLLC, Ft. Lauder-dale, for Appellant.
    John C. Dent, Jr., and Jennifer A. McClain of Dent & McClain, Chartered, Sarasota, for Appellee Calvin M. Rutledge.
    No Appearance for remaining Appellees.
   SLEET, Judge.

Wells Fargo Bank, N.A., appeals the final summary judgment granting title to Calvin Rutledge and discharging Wells Fargo’s lis pendens against the underlying property in this foreclosure action. Because we agree that Wells Fargo was not barred from pursuing foreclosure in the circuit court by laches or equitable estop-pel and that material issues of fact remain as to the authenticity of Mary Dias’s signature on the note and mortgage, we reverse.

Facts

Wells Fargo filed a foreclosure action in circuit court against Bruce and Mary Dias and named their homeowners association, Harbor Towers, as a defendant. Wells Fargo sought foreclosure of a note and mortgage against the Dias’s home for $475,526.52. While that action remained pending in circuit court, Harbor Towers filed a second foreclosure action in county court to foreclose a lien on the same property. Harbor Towers erroneously named Wells Fargo as a defendant and junior lienholder. Wells Fargo did not participate in the second foreclosure action, and a default was entered against it in county court. The county court entered summary judgment in favor of Harbor Towers and the property was sold at public auction to Calvin Rutledge for $10,894. Rutledge filed a certificate of title with the clerk and joined the circuit court foreclosure case as a party. Thereafter, the circuit court entered a nonfinal order granting Rutledge’s motion for summary judgment, finding that although Wells Fargo was improperly joined as a party to Harbor Towers’ foreclosure action, see Citimortgage v. Henry, 24 So.3d 641, 643 (Fla. 2d DCA 2009), it had slept on its rights by not participating in the county court case and was barred by laches and equitable estoppel from asserting its rights in the circuit court case.

The county court granted Wells Fargo’s subsequent Florida Rule of Civil Procedure 1.540(b)(4) motion to vacate the county court foreclosure judgment. Relying on Henry, 24 So.3d at 643, the county court held that Wells Fargo’s mortgage interest was superior to Harbor Towers’ interest and that thus, Wells Fargo was not a proper party and was not required to litigate its interest in Harbor Towers’ foreclosure action. The court vacated the county court foreclosure judgment as void. This order was affirmed on appeal to the circuit court. It does not appear that Wells Fargo sought to vacate the foreclosure sale or that the sale was ever vacated. See generally Palacios v. Fla. Funding Trust, 32 So.3d 167,169 (Fla. 2d DCA 2010).

Meanwhile, Rutledge continued to participate in Wells Fargo’s foreclosure action. He filed a motion for final judgment relying on the prior order granting his motion for summary judgment and alleging that Mary Dias’s signatures on the note and mortgage held by Wells Fargo were forged. In support, he filed the affidavit of a forensic document examiner who concluded that the signatures on the mortgage were forged after reviewing Mary Dias’s signatures on an unrelated mortgage and her answer to Wells Fargo’s complaint. In the answer, Mary Dias alleged that the signatures on the note and mortgage were forged and that they were not authorized by her through a power of attorney. The circuit court granted Rutledge’s motion for final judgment, relying on the earlier summary judgment in his favor and explaining that because Wells Fargo provided no responsive evidence to refute the assertions of Mary Dias and the forensic document examiner as to the authenticity of Mary Dias’s signatures, there was no issue of material fact and summaiy judgment was appropriate. The court found that the Wells Fargo mortgage was a forgery, and therefore void, and discharged Wells Fargo’s lis pendens against the property. This appeal followed.

Analysis

Wells Fargo argues that the trial court erred when it determined that Wells Fargo was barred from pursuing its foreclosure claim in circuit court by laches and equitable estoppel and that summary judgment was improper because material issues of fact remained as to the authenticity of Mary Dias’s signatures. We review an order granting summary judgment de novo. See Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011).

Wells Fargo, as the superior lien holder, was not a proper party to Harbor Towers’ foreclosure action. See Henry, 24 So.3d at 643. Because it was not required to participate in the county court foreclosure action, Wells Fargo’s failure to participate cannot form the basis of a laches argument. See U.S. Bank Nat’l Ass’n v. Bevans, 138 So.3d 1185, 1187 (Fla. 3d DCA 2014) (explaining that “the final judgment of foreclosure entered in favor of the Association in the Association’s foreclosure action did not eliminate the Bank’s senior mortgage interest because ‘[f]oreclosure does not terminate interests in the foreclosed real estate that are senior to the mortgage being foreclosed’ ” (quoting Garda v. Stewart, 906 So.2d 1117, 1120 (Fla. 4th DCA 2005))).

Furthermore, Rutledge was at least constructively aware of Wells Fargo’s lis pen-dens — recorded at the start of the circuit court foreclosure action — and foreclosure when he purchased the property. Wells Fargo’s failure to participate in the county court foreclosure action did not lure Rutledge into a disadvantageous legal position because he was aware of the circuit court action. The circuit court’s nonfinal order granting summary judgment in favor of Rutledge on the grounds of laches and equitable estoppel was improper.

Wells Fargo alleges that material issues of fact remained as to whether Mary Dias’s signature was forged on the note and mortgage and that summary judgment was thus inappropriate. In Wells Fargo’s complaint, it alleged Bruce and Mary Dias executed a note and mortgage on the subject property and that they defaulted on the note and mortgage. Wells Fargo attached a copy of the note and mortgage, which contained the notarized signatures of Bruce and Mary Dias. There is a presumption that Mary Dias’s signature is authentic under section 673.3081, Florida Statutes (2013). In Rutledge’s motion for final judgment, he alleged that Mary Dias’s signatures were forged and he filed the forensic document examiner’s affidavit in support. Rutledge did not file any affidavits or other evidence establishing that Mary Dias’s signatures on the unrelated mortgage or on her answer to Wells Fargo’s complaint were genuine, nor did he request a stipulation from Wells Fargo. See § 92.38, Fla. Stat. (2013) (permitting a witness to compare “a disputed writing with any writing proved to the satisfaction of the judge to be genuine” (emphasis added)). Thus, there remains a material issue of fact as to the authenticity of Mary Dias’s signature.

Accordingly, we reverse the summary judgment and the final judgment, and we remand for further proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA and LaROSE, JJ., Concur.


author: KELLY, Judge.

text:
    Michael ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5299.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2014.

      Michael Robinson, pro se.
   KELLY, Judge.

Michael Robinson filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 in which he contended that his counsel was deficient in advising him to reject a favorable plea offer on the morning of trial. The post-conviction court considered Mr. Robinson’s claim as three separate grounds. We find no merit in Mr. Robinson’s appeal of grounds one (B) and one (C) and affirm the order denying those grounds, but we reverse and remand the denial of ground one (A).

Mr. Robinson asserted that he was convicted after trial of sexual battery, a second-degree felony, and sentenced to thirty years in prison, with the last fifteen years suspended and to be served on sexual offender probation. He was sentenced as both a habitual violent felony offender (HVFO), which required him to serve ten years prior to release, and as a prison releasee reoffender (PRR), requiring a mandatory minimum term of fifteen years before release.

According to Mr. Robinson’s rule 3.850 motion, the State offered him a deal on the morning of trial. In exchange for pleading guilty, he would be sentenced to five years in prison to be followed by five years on probation. He rejected this offer and went to trial but he would not have done so had his counsel effectively advised him. Specifically, Mr. Robinson claimed that his counsel did not explain that should he lose at trial, he would be eligible for both PRR and HVFO sentencing, which required minimum mandatory terms of fifteen years and ten years, respectively.

In rejecting this claim, the postconviction court attached to its order copies of the Notice of Enhanced Penalty, which informed the defendant and his attorney that the State had determined that Mr. Robinson qualified for habitual felony offender and habitual violent felony offender sentencing, and the Notice of Defendant’s Qualifications as a Prison Releasee Reof-fender, notifying the defendant and his attorney that the State might seek imposition of the mandatory sentence pursuant to section 775.082, Florida Statutes (2007). Both of these documents were filed and served on the defendant and his attorney in October 2007, well before the 2010 trial and plea offer. The postconviction court found that these documents refuted the defendant’s claim that he was “unaware that he would be eligible for sentencing as a PRR and HVFO”; therefore, counsel could not be said to be deficient for failing to inform the defendant of this eligibility, which was brought to the defendant’s attention more than two years before trial.

In our view, these documents do not conclusively refute the defendant’s claim. Although they demonstrate that the defendant was legally on notice of the potential for PRR and HVFO sentencing, the notices cannot refute his claim that his counsel was ineffective for failing to inform him of the consequences of such sentencing — i.e., the fifteen-and ten-year mandatory minimum terms. Without a full understanding of those consequences, about which it was his attorney’s duty to inform him, Mr. Robinson claimed that his ability to evaluate the plea offer was prejudiced. See Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 1385, 182 L.Ed.2d 398 (2012) (holding the constitutional right to the effective assistance of counsel “applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel’s advice”).

Nevertheless, we reverse the postconviction court’s order on other grounds: the prejudice allegations of the motion were facially insufficient, but, having decided that counsel’s performance was not deficient, the posteonviction court failed to enter a nonfinal order permitting the defendant to amend within sixty days. See Fla. R. Crim. P. 3.850(f)(2). We note that in this context prejudice is determined “based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice. Alcorn v. State, 121 So.3d 419, 432 (Fla.2013). Mr. Robinson alleged that he would have taken the offer if his counsel had properly advised him and that his sentence would have been less severe than that imposed after trial. However, to be facially sufficient, he was also required to allege a reasonable possibility, sufficient to undermine confidence in the outcome of the proceeding, that the prosecutor would not have withdrawn the offer (which seems unlikely since it was extended on the morning of trial) and that the trial court would have accepted it. Alcorn, 121 So.3d at 433. Mr. Robinson should be permitted to amend his motion to assert prejudice within the time specified in rule 3.850(f)(2), if he can do so in good faith.

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

NORTHCUTT and SILBERMAN, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Reynaldo MILLETTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1440.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2014.
    Reynaldo Millette, pro se.
   CASANUEVA, Judge.

Reynaldo Millette appeals the postcon-viction court order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850(b)(3), wherein Mr. Millette sought leave to file a belated post-conviction motion on the basis that his privately retained counsel failed to timely file the motion. Because counsel did in fact file a timely motion for postconviction relief on August 22, 2012, and timely amended that motion on May 23, 2013, we affirm the postconviction court’s order. However, we note that the postconviction court erroneously dismissed the amended motion as untimely. See Rosier v. State, 144 So.3d 604 (Fla. 2d DCA 2014). It also appears Mr. Millette was not adequately informed of his right to seek appellate review of the postconviction court’s determination that the motion was untimely. Therefore, our affirmance is without prejudice to any right Mr. Millette may have to file a petition for belated appeal of the postconviction court order rendered July 23, 2013, dismissing as untimely his previous rule 3.850 motion filed by counsel; he has until July 23, 2015, to file a timely petition. See Fla. R. App. P. 9.141(c). Mr. Millette should reference this opinion in his petition for belated appeal.

Affirmed.

SILBERMAN and BLACK, JJ., Concur.


author: VILLANTI, Judge.

text:
    Vincente CARBAJAL, a/k/a Vincente Ejias Reyes-Carbajal, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1756.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2014.
   VILLANTI, Judge.

Vincente Carbajal appeals an order dismissing as successive the second of two timely filed motions for postconviction relief. Some of Carbajal’s allegations are ambiguous or facially insufficient; consequently, the files and records accompanying the postconviction court’s dismissal order do not fully support a conclusion that all of his claims are successive. Because the postconviction court should have given Carbajal one opportunity to amend his motion before dismissing it as successive, we affirm in part, reverse in part, and remand for further proceedings.

In 2011, Carbajal entered a negotiated guilty plea to two counts of armed kidnapping, one count of robbery with a firearm or deadly weapon, and one count of carjacking with a firearm. He was sentenced to a combination of sentences totaling fifty years in prison. This court affirmed Car-bajal’s convictions and sentences on direct appeal. See Reyes-Carbajal v. State, 112 So.3d 108 (Fla. 2d DCA 2013) (table decision). Mandate issued on May 7, 2013.

On June 2, 2013, Carbajal filed a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised three claims regarding the filing of the information. The postconviction court found the claims to be frivolous and denied the motion on July 11, 2013.

Subsequently, Carbajal filed a second rule 3.850 motion on January 30, 2014, raising eight claims for relief. Four of these claims made allegations of ineffective assistance of counsel; three claims (claims one, two, and three) made allegations concerning newly discovered evidence in the form of DNA test results; and one claim made an allegation of cumulative error. The three claims concerning the newly discovered DNA evidence did not contain an allegation as to when Carbajal learned of the existence of this evidence. Nevertheless, the postconviction court dismissed this motion in its entirety as successive.

Rule 3.850(h)(2) permits a court to dismiss a postconviction motion as successive if it finds there was “no good cause for the failure of the defendant ... to have asserted those grounds in a prior motion.” In dismissing the motion, the postconviction court’s order must be accompanied by “that portion of the files and records necessary to support the court’s ruling.” Id. We recognize that “[t]he burden is on the movant to show extraordinary circumstances and good cause for having failed to raise the ‘new* claim in the prior motion.” Morris v. State, 134 So.3d 1066, 1067-68 (Fla. 4th DCA 2013). But if a movant’s allegations are facially insufficient in this regard, the postconviction court may not simply deny or dismiss the motion. Instead, the court must afford the movant an opportunity to correct the deficiencies if he or she can do so in good faith. See Fla. R. Crim. P. 3.850(f)(2) (“If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion.”); Spera v. State, 971 So.2d 754, 761 (Fla.2007).

Here, Carbajal did not allege in his second motion exactly when he became aware of the allegedly new DNA evidence, other than that it was “subsequent to the plea agreement, judgment and sentence.” Without knowing when Carbajal learned of this allegedly new evidence, it was simply not possible for the postconviction court to determine that the motion was truly successive under rule 3.850(h)(2). Accordingly, we reverse the dismissal of claims one, two, and three of Carbajal’s second motion for postconviction relief and remand for the postconviction court to give him an opportunity to amend those claims with a good faith allegation concerning when and how he learned of the existence of the allegedly exculpatory DNA test results. In all other respects, we affirm the dismissal of the motion as successive.

Affirmed in part; reversed in part; remanded.

KHOUZAM and BLACK, JJ., Concur.


text:
    George Manuel EDDINS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4206.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2014.
    George Manuel Eddins, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, BENTON, and MAKAR, JJ., concur.


author: LaROSE, Judge.

text:
    Christopher BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2904.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2014.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Christopher Burton appeals the postcon-viction court’s order denying his motion to correct an illegal sentence filed under Florida Rule of Criminal Procedure 8.800(a). Because Mr. Burton received a mandatory sentence of life without the possibility of parole for a first-degree murder he committed when he was sixteen years old, we reverse the portion of the postconviction court’s order summarily denying his motion and remand the case for further proceedings consistent with Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014). See also Baker v. State, 138 So.3d 1175 (Fla. 2d DCA 2014); Landrum v. State, 133 So.3d 601 (Fla. 2d DCA 2014).

In Toye, this court concluded that Miller applied retroactively and certified conflict with Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012) (en banc), and Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012). Toye, 133 So.3d at 547. We again certify conflict with Gonzalez and Geter, and add to our certification Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013), review granted, 137 So.3d 1019 (Fla.2013).

Reversed and remanded. Conflict certified.

KHOUZAM and BLACK, JJ., Concur.


text:
    D.T.W., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0633.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, a Causey order was issued directing the parties to brief the issue of whether the trial court erred in committing the appellant to a moderate-risk placement when the Department of Juvenile Justice (the Department) had recommended probation. See B.KA. v. State, 122 So.3d 928, 930 (Fla. 1st DCA 2013). The public defender recognized the error and asked this Court to reverse and remand pursuant to B.KA. The State concedes error. Accordingly, we AFFIRM the appellant’s adjudication of delinquency, but REVERSE the particulars of the commitment and REMAND with instructions for the trial court to receive a recommendation from the Department regarding a restrictiveness level before committing the appellant.

WOLF, ROBERTS, and ROWE, JJ., concur.

      . State v. Causey, 503 So.2d 321 (Fla.1987).


text:
    Bruce Alan WYANDT, Appellant, v. Lisa Ann VOCCIO, Appellee.
    No. 2D13-2778.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2014.
    Ron Smith, Largo, for Appellant.
    John H. Trevena, Largo, for Appellee.
   LaROSE, Judge.

Bruce Alan Wyandt appeals an order granting Lisa Ann Voccio’s petition for injunction for protection against stalking violence. See §§ 784.046(l)(a),(b), 784.048-.0485, Fla. Stat. (2012). No competent, substantial evidence supports the trial court’s finding that Ms. Voccio established the requisite two incidents of stalking required for injunctive relief. See § 784.046(l)(b). Accordingly, we reverse.

Mr. Wyandt and Ms. Voccio each operated a business in the same small shopping center in Pinellas Park. Suffice it to say, they did not get along. Their animosity toward one another required intervention by the property manager and the sheriffs office. Although the businesses were located at opposite ends of the shopping center, limited customer parking boiled the bad blood between the parties.

On one occasion, a group of people in the parking lot verbally harassed Ms. Voc-cio as she walked to her car. Mr. Wyandt was in the group; there is no evidence, however, that he volleyed verbal abuse toward Ms. Voccio. The next day, Mr. Wyandt went to Ms. Voccio’s business, ostensibly to complain about her customers using his parking spaces. They argued vehemently both in and outside the business. There seems to be no question but that Mr. Wyandt directed obscenities at Ms. Voccio. As he left the business, Mr. Wyandt allegedly stated that Ms. Voccio “would no longer be around.”

After what appears to be a truncated hearing, the trial court granted a six-month injunction in favor of Ms. Voccio that barred Mr. Wyandt from having contact with her. During the hearing, Mr. Wyandt requested additional time for cross-examination and to elicit testimony explaining his comment as to why Ms. Voccio “would no longer be around.” The trial court denied his requests and issued the injunction, concluding that the actions and the language directed at Ms. Voccio were intimidating, disgusting, and threatening.

Section 784.0485, which governs the procedure for the issuance of stalking injunctions, became effective on October 1, 2012. See Touhey v. Seda, 133 So.3d 1203, 1203 n. 1 (Fla. 2d DCA 2014) (citing ch. 2012-153, §§ 3, 6, at 2035, 2039, Laws of Fla. (2012)). We analyze the statute with guidance from section 784.046, which defines repeat violence as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” See § 784.046(l)(b); Seda, 133 So.3d at 1203 & n. 2. The petitioner must prove each stalking incident by competent, substantial evidence to support an injunction against stalking. Seda, 133 So.3d at 1204.

Ms. Voccio alleged two incidents of stalking. As mentioned earlier, the first occurred on April 18, 2013, when she left her business and a group of people in the parking lot yelled vulgarities at her as she walked to her car. Ms. Voccio candidly admitted, however, that she could not attribute any comments to Mr. Wyandt. The next day, on April 19, Mr. Wyandt entered Ms. Voccio’s business. He ranted about parking spaces, made forceful gestures, cursed, and acted in a manner which Ms. Voccio found threatening. Although Mr. Wyandt’s conduct was boorish, we need not determine whether it constituted an incident of stalking. Ms. Voccio did not establish two incidents of stalking. Our record does not allow us to attribute the April 18 incident to Mr. Wyandt.

There was insufficient evidence that Mr. Wyandt stalked Ms. Voccio. Accordingly, we reverse the injunction for protection against stalking violence and remand to the trial court with instructions to dismiss Ms. Voccio’s petition.

Reversed and remanded.

ALTENBERND and SILBERMAN, JJ., Concur.

      X. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(B).

      . We understand that Ms. Voccio did not continue her lease and, in fact, no longer is a tenant in the shopping center.

      . During the pendency of this appeal, the injunction expired. However, Ms. Voccio filed an affidavit in support of a violation of the injunction. A successor trial judge requested the state attorney to investigate potential criminal charges or criminal contempt. See § 784.0487. The case before us is not moot because collateral legal consequences remain that affect Mr. Wyandt’s rights. See Godwin v. State, 593 So.2d 211, 212 (Fla.1992).

      .Apparently, because of its busy docket, the trial court was anxious to conclude the hearing. We acknowledge a trial court’s broad authority to control its docket. We must also recognize that Mr. Wyandt was entitled to a fair opportunity to be heard. See Smith v. Smith, 964 So.2d 217, 218-19 (Fla. 2d DCA 2007). A trial court can abuse its discretion by unreasonably denying a party the opportunity to call witnesses or to testify on his or her own behalf. Id. at 219. Because Mr. Wyandt did not preserve his due process arguments below or specifically brief them on appeal, we do not reach these issues as possible fundamental error.


text:
    Cynthia PASHTENKO, Appellant, v. Valentin PASHTENKO, Appellee.
    No. 2D13-4683.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2014.
    Philip J. Schipani of Philip J. Schipani, P.A., Sarasota, for Appellant.
    No appearance for Appellee Valentin Pashtenko.
   SLEET, Judge.

Cynthia Pashtenko appeals the September 13, 2013, order denying her petition for injunction against stalking, which she sought against Valentin Pashtenko, her husband. Because the trial court’s order failed to set forth the legal grounds for denial as required by section 784.0485(5)(b), Florida Statutes (2013), we reverse.

The Pashtenkos are in the middle of an admittedly contentious divorce. On September 13, 2013, Mrs. Pashtenko filed a petition for injunction for protection against stalking. In her petition, Mrs. Pashtenko alleged that Mr. Pashtenko committed stalking and numerous other acts, by repeatedly calling her in the middle of the night, making threats through friends, breaking into her temporary residence and taking pictures of her personal belongings, driving by the house, following her, and taking pictures of her. Mrs. Pashtenko also alleged that Mr. Pashtenko had several guns and that he threatened to use or used weapons against her.

On the same day that she filed the ex parte petition, the trial court denied it. The trial court used Florida Supreme Court Approved Family Law Form 12.980(b)(2) for its order. The form lists six possible grounds for denying the petition. Numbers one through four list the following grounds: (1) petitioner has failed to allege in a petition for domestic violence that respondent is a family or household member as that term is defined by Chapter 741, Florida Statutes; (2) petitioner has used a petition form other than that which is approved by the Court and the form used lacks the statutorily required components; (3) petitioner has failed to complete a mandatory portion of the petition; and (4) petitioner has failed to sign the petition. Number five states, “petitioner has failed to allege facts sufficient to support the entry of an injunction for protection against domestic, repeat, dating, or sexual violence, or stalking because,” and includes a space for the court to write its reasons. Number six is titled “other” and also provides space for the court to write its reasons. The trial court did not select numbers one through five as its reasons for denying the petition. However, in the space provided after number five, the court wrote: “Petitioner is alleging domestic ‘violence’ by stalking. She says law enforcement has been contacted multiple times (see para. 7).” In the space provided after number six, the trial court judge initialed and wrote: “These parties are involved in a contentious D.O.M. with competing allegations of child abuse. The court has notified DCF.” The court then handwrote a number seven, where there appears to be a sticker or stamp applied to the order, which states the following:

Petition alleges law enforcement contacted. It is reasonably inferred there was no probable cause evidence to arrest or request charge. F.S. 741.29(2) & (3) and F.S. 901.15(7) & (9) are applicable re investigation /arrest/reports, etc. Standard of proof for Court issuance of ex parte injunction higher — “strong and clear” evidence. (Kopelovich v. Kopelovich, 793 So.2d 31 (Fla. 2d DCA 2001))

The court also handwrote a number eight and wrote: “DCF and the attorneys are being provided copies of this order and petition.” Mrs. Pashtenko appealed.

Section 784.0485 creates a cause of action for an injunction for protection against stalking. The statute sets forth the required form and substance of a petition for an injunction against stalking. It also sets forth the procedure the trial court must follow once the petition is filed. Specifically, section 784.0485(5)(b) states:

[I]n a hearing ex parte for the purpose of obtaining such ex parte temporary injunction, evidence other than verified pleadings or affidavits may not be used as evidence, unless the respondent appears at the hearing or has received reasonable notice of the hearing. A denial of a petition for an ex parte injunction shall be by written order noting the legal grounds for denial. If the only ground for denial is no appearance of an immediate and present danger of stalking, the court shall set a full hearing on the petition for injunction with notice at the earliest possible time.

(Emphasis added).

None of the findings listed in the trial court’s order are legal grounds to deny Mrs. Pashtenko’s petition. Contrary to section 784.0485(5)(b), the trial court’s findings under grounds five and seven demonstrate that the trial court considered “evidence other than verified pleadings or affidavits.” Specifically, the trial court looked beyond the petition to infer that there was no probable cause evidence to arrest or request charges. The trial court thereby implied that because there was no arrest or charges filed, Mrs. Pashtenko failed to present the “strong and clear” evidence necessary to issue the injunction. The trial court also incorrectly cited to sections 741.29(2), .29(3), 901.15(7), and .15(9) which apply to domestic violence injunctions and not injunctions for protection against stalking.

The trial court’s findings under numbers six and eight are also not legal grounds for denial of the petition. The fact that the parties are involved in a dissolution of marriage or that there are allegations of child abuse have no bearing on whether stalking has occurred. See § 784.0485(l)(b) (“The cause of action for an injunction for protection [against stalking] may be sought regardless of whether any other cause of action is currently pending between the parties.”). Likewise, the fact that DCF and the parties’ attorneys are being provided copies of the order are not legal grounds to deny a petition for a temporary injunction for protection against stalking.

Although this issue may be moot because the trial court denied the petition in September 2013 with leave to amend or supplement the petition, we believe this type of denial may recur in the future. Accordingly, we reverse the trial court’s order and remand for the trial court to conduct an ex parte hearing on Mrs. Pash-tenko’s petition. See Sanchez v. State, 785 So.2d 672, 677 (Fla. 4th DCA 2001). In the event the trial court decides the petition should be denied, it shall set forth the legal grounds for the denial in a written order pursuant to section 784.0485(5)(b).

Reversed and remanded.

CASANUEVA and CRENSHAW, JJ., Concur.


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Petitioner, v. Mario DIAMANTOPULOS and Arie Diamantopulos, Respondents.
    No. 2D14-1006.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2014.
    Kara Berard Rockenbach and Lauren J. Smith of Methe & Rockenbach, P.A., West Palm Beach, for Petitioner.
    George A. Vaka and Nancy A. Lauten of Vaka Law Group; and Joseph E. Burnett and Marshall Thomas Burnett, Tampa, for Respondents.
   SLEET, Judge.

Citizens Property Insurance Corporation (“Citizens”) seeks certiorari review of the trial court’s order sustaining Mario and Arie Diamantopulos’ objection to Citizens’ notice of automatic stay on the basis that Citizens waived its right to neutral evaluation. Citizens also seeks a writ of mandamus directing the trial court to stay the proceedings during neutral evaluation. For the reasons expressed in Citizens Property Insurance Corp. v. Trapeo, 136 So.3d 670 (Fla. 2d DCA 2014), we grant the petition for writ of certiorari and quash the trial court’s order to the extent that it prohibits Citizens from invoking the neutral evaluation process. We also grant the petition for writ of mandamus and direct the circuit court to stay the underlying proceedings pending completion of the neutral evaluation process. See Citizens Prop. Ins. Corp. v. King, — So.3d — (Fla. 2d DCA 2014); Citizens Prop. Ins. Corp. v. Bellas, 147 So.3d 1019 (Fla. 2d DCA 2014); Citizens Prop. Ins. Corp. v. Hanos, — So.3d — (Fla. 2d DCA 2014).

Certiorari petition granted; order quashed; mandamus petition granted with directions.

DAVIS, C.J., and WALLACE, J., Concur.


text:
    William Tony McCROAN, Appellant, v. STATE of Florida (N.F.E.T.C.), Appellee.
    No. 1D11-3709.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee; Bernard F. Daley, Jr. of The Daley Law Office, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   OPINION ON MOTION TO ENFORCE MANDATE

PER CURIAM.

McCroan filed a motion asking this court to enter an opinion enforcing its mandate. For the reasons discussed below, we grant the motion.

While McCroan was awaiting trial on criminal charges, the trial court found McCroan incompetent to proceed. The court then entered an order finding him not guilty by reason of insanity. The court also found McCroan was a danger to himself or others and ordered that he be civilly committed. McCroan subsequently filed a petition for writ of habeas corpus in the trial court, arguing the court lacked the authority to adjudicate him not guilty by reason of insanity because that was a jury question, and because the court had found him incompetent to proceed. The court denied the motion.

On appeal, the State correctly conceded error. This court issued an opinion on April 4, 2013, reversing the trial court’s denial of McCroan’s petition for writ of habeas corpus and remanding for the court to quash the order finding McCroan not guilty by reason of insanity. McCroan v. State, 110 So.3d 533 (Fla. 1st DCA 2013). The opinion cited Thompson v. Crawford, in which the Third District held that because a defendant may not be proceeded against while incompetent to stand trial, a trial court’s order finding an incompetent defendant not guilty by reason of insanity is void. 479 So.2d 169, 185-86 (Fla. 3d DCA 1985). The Thompson court also held the question of whether a defendant is not guilty by reason of insanity is a question of fact for the jury; thus, the trial court lacks the authority to make this finding unless the defendant has waived the right to a jury trial. Id. at 180.

On remand, the trial court did not quash the order finding McCroan not guilty by reason of insanity, as required by this court’s opinion. To the contrary, the court entered a second order again finding McCroan not guilty by reason of insanity. The court also found McCroan continued to be a danger to himself or others and ordered that he continue to be civilly committed. The court has not, to date, found that McCroan has regained his competency to stand trial.

In response to McCroan’s motion to enforce mandate, the State correctly concedes error. Accordingly, we grant the motion to enforce mandate and again instruct the trial court to quash the order finding McCroan not guilty by reason of insanity. We write to make it explicitly clear that the court is without authority to proceed against McCroan until the court finds that his competency has been restored. Further, the court is without authority to find McCroan not guilty by reason of insanity because McCroan has not waived his right to a jury trial. Thompson, 479 So.2d at 185-86.

Motion to enforce mandate GRANTED; REMANDED with instructions.

LEWIS, C.J., WOLF and VAN NORTWICK, JJ., concur.


text:
    John William PAYTON, Jr., Husband, Appellant, v. Julie Anne East PAYTON, Wife, Appellee.
    No. 1D13-0287.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Lynn W. Martin, Orange Park, for Appellant.
    Julie Anne East Payton, pro se, Appel-lee.
   PER CURIAM.

John William Payton, Jr., appeals an order finding him in contempt for failure to pay a child support arrearage. This order was the second order of contempt entered against Mr. Payton. We reverse and remand for further proceedings.

In the first order of contempt, Mr. Pay-ton was ordered, among other things, to pay $200 towards a child support arrear-age, to provide reimbursement for one half of an outstanding medical bill, and pay the former wife’s attorney’s fees. After this initial contempt order entered, the judgment of dissolution was reversed in part, and the cause remanded. Payton v. Payton, 109 So.3d 280 (Fla. 1st DCA 2013) (Payton I). Because the first order of contempt was premised on the judgment of dissolution, reversed in part in Payton I, this court reversed the first order of contempt. Payton v. Payton, 120 So.3d 676 (Fla. 1st DCA 2013) (Payton II). In the second order of contempt, the trial court again ordered Mr. Payton to pay child support as required by the judgment of dissolution, and to pay as well $200 per month towards the arrearage, directly to the former wife until an income deduction order was entered. The trial court further directed Mr. Payton to pay $500 toward his former wife’s attorney’s fees and to provide reimbursement of $256 for his half of an outstanding medical bill. Mr. Payton raises several issues on appeal, including the claim that because the second order of contempt is premised on the judgment of dissolution, which in pertinent part was reversed by this court, and on the first contempt order, which also was reversed, the second order must be reversed as well. We agree. On remand, the trial court shall recalculate the amount of new arrear-age and purge, as necessary, after consideration of this court’s prior decisions in Payton I and Payton II. Further, we vacate the award of attorneys’ fees, leaving it to the trial court to make a de novo determination of entitlement on remand upon proper proof.

REVERSED.

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


text:
    Nagabhushanam VELAGA, Appellant, v. Ooha GUDAPATI, Appellee.
    No. 2D13-2253.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2014.

      Lorena L. Kiely, Tampa, for Appellant.
    Christina C. Mesa of Mesa Law, P.A., Tampa, for Appellee.
   VILLANTI, Judge.

Nagabhushanam Velaga, the Former Husband, appeals the final judgment dissolving his marriage to the Former Wife, Ooha Gudapati. On appeal, the Former Husband argues that the trial court abused its discretion by (1) not considering the child’s best interests in its development of the parenting plan; (2) using old data to determine the Former Husband’s ability to pay child support; (3) fading to consider the Former Husband’s transportation costs associated with his timeshar-ing in its determination of child support payments; (4) ordering the Former Husband to secure the child support award with a life insurance policy; (5) entering awards to the Former Wife that cumulatively exhaust the Former Husband’s ability to pay; and (6) ordering the Former Husband to pay the Former Wife the value of her missing nonmarital jewelry. We find merit only in the Former Husband’s contention that it was improper for the trial court to order him to procure and maintain life insurance and therefore reverse on this issue alone. In all other respects, we affirm the final judgment without discussion.

Generally, the trial court has discretion to order the payor of child support to maintain a life insurance policy in order to secure the award. § 61.13(l)(c), Fla. Stat. (2012). However, the court’s order must include findings on the cost of the insurance and whether the obligor can afford it, and there must be special circumstances that would necessitate such an order. See Cozier v. Cozier, 819 So.2d 834, 837 (Fla. 2d DCA 2002). Here, the trial court did not make any findings on whether the Former Husband could afford life insurance, nor were there any findings of special circumstances that would necessitate the Former Husband obtaining life insurance. Absent these findings, the trial court committed reversible error when it ordered the Former Husband to procure a life insurance policy as security for his child support payments. Hence, we must reverse for these further proceedings.

On remand, if the trial court again obligates the Former Husband to procure and maintain life insurance, it must make the required findings and specify when the life insurance obligation will terminate. See Haydu v. Haydu, 591 So.2d 655, 657 (Fla. 1st DCA 1991).

Affirmed in part, reversed in part, and remanded.

DAVIS, C.J., and CASANUEVA, J., Concur.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Sharon ODUM, as Personal Representative for the Estate of Ethelene Hazouri, Appellee.
    No. 1D13-6002.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2014.

      Robert B. Parrish, David C. Reeves, and Jeffrey A. Yarbrough of Moseley, Prich-ard, Parrish, Knight & Jones, Jacksonville; Gregory G. Katsas of Jones Day, Washington, DC; Stephanie E. Parker, John F. Yarber and John M. Walker of Jones Day, Atlanta, GA; Edward Carter of Jones Day, Columbus, OH; Jason T. Burnette of Jones Day, Atlanta, GA, pro hac vice, for Appellant.
    John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee; John S. Kalil of Law Office of John S. Kalil, P.A., Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. See Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla.2013); see also Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir.2013).

LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.


author: VAN NORTWICK, J.

text:
    Jeremiah Eugene BEAZLEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D13-3593, 1D14-1688.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.

      Nancy Daniels, Public Defender, and Megan Long, Assistant Public Defender, for Appellant.
    Pamela Bondi, Attorney General, Jennifer Moore, Assistant Attorney General, and Lauren Brudnicki, Assistant Attorney General, for Appellee.
   VAN NORTWICK, J.

Jeremiah Eugene Beazley appeals his convictions and sentences for resisting a police officer without violence (two counts) and tampering with physical evidence. He also appeals the denial of post-conviction relief. Because, as the State correctly concedes, Beazley’s two convictions for resisting arrest arose from a single episode, we reverse one of those convictions, vacate the corresponding sentence, and remand for entry of a corrected judgment and resentencing. For the reasons that follow, we affirm all other issues raised on appeal.

After a jury trial, Beazley was convicted of two counts of possession of a controlled substance, tampering with physical evidence, and two counts of resisting an officer without violence. The convictions for possession of a controlled substance were vacated by the trial court after the Florida Department of Law Enforcement analyst who tested the contraband seized from Beazley and who testified at Beazley’s trial was arrested for trafficking in controlled substances submitted to FDLE for analysis in criminal investigations. The trial court determined that the evidence of probable tampering of evidence by the FDLE analyst constituted newly discovered evidence warranting post-conviction relief as to the convictions for possession. This appeal does not affect that grant of post-conviction relief. At issue in the case at bar are the remaining convictions: tampering with physical evidence and two counts of resisting an officer without violence.

After observing an alleged narcotics transaction in a parking lot at a convenience store, a sheriffs deputy approached the alleged seller, Beazley, to affect an arrest. Once the investigator identified himself and told Beazley to get out of his vehicle, Beazley thrust the door open and the two men began to wrestle, according to the State’s evidence. Beazley was able to free himself and fled from both the initial investigator and a second law enforcement officer who had arrived on the scene. Beazley threw a plastic bag containing several pills into a ditch as he fled. An unknown amount of the pills were dislodged from the bag and apparently dissolved in water that had accumulated inside the ditch. A short time later Beazley was apprehended and taken into custody.

On appeal, Beazley argues that the skirmish with the initial investigator and the flight from the two officers constituted a single, continuous episode thereby permitting only a single conviction for resisting an officer. “Multiple convictions on multiple counts of resisting arrest without violence arising out of a single episode, even if more than one officer is involved, constitute a double-jeopardy violation.” Fogle v. State, 754 So.2d 878, 879 (Fla. 1st DCA 2000). The State concedes that only one conviction should stand, and we agree.

Additionally, Beazley argues his defense counsel was ineffective for failing to move for a judgment of acquittal at the close of the State’s case on the charge of tampering with evidence. Generally, a claim of ineffective assistance of counsel may not be raised on direct appeal. See, e.g., Bruno v. State, 807 So.2d 55 (Fla.2001). An exception may be made to this general rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable. Stewart v. State, 420 So.2d 862 (Fla.1982). Failure to move for a judgment of acquittal when the State has not proved an essential element of its case may constitute ineffective assistance of counsel. See Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002).

Beazley argues that because the State’s evidence established, at best, that he abandoned the pills, the failure of defense counsel to move for a judgment of acquittal as to the charge of tampering with physical evidence constituted ineffective assistance as there was no evidence of intent. The abandonment of evidence during flight from law enforcement, even if rendering the evidence irrecoverable, does not constitute tampering without evidence of a specific intent to tamper with or conceal the evidence. See Evans v. State, 997 So.2d 1281, 1284 (Fla. 4th DCA 2009); Obas v. State, 935 So.2d 38 (Fla. 4th DCA 2006).

Without condoning defense counsel’s failure to move for a judgment of acquittal, we are unwilling under these facts to hold that ineffective assistance is apparent on the face of the record on direct appeal. Intent is notoriously a difficult matter to prove directly. “Intent, being a state of mind, is often not subject to direct proof and can only be inferred from circumstances.” Jones v. State, 192 So.2d 285, 286 (Fla. 3d DCA 1966). “At the same time, ⅛ a circumstantial evidence case, the State’s evidence must be not only consistent -with guilt but inconsistent with any reasonable hypothesis of innocence.’ ” Benitez v. State, 852 So.2d 386, 388 (Fla. 3d DCA 2003) (quoting Jeffries v. State, 797 So.2d 573, 580 (Fla.2001)). Beazley may raise this issue in a motion for post-conviction relief at which time the trial court, as finder of fact, may consider whether there was circumstantial evidence of intent. The question of whether trial counsel was ineffective is dependent upon a finding of evidence of intent sufficient to establish a prima facie case, a question best resolved at the trial court level were evidence and argument from both Beazley and the State can be heard. See McKinney v. State, 579 So.2d 80, 82 (Fla.1991) (“The trial court is the more appropriate forum to present such claims [of ineffective assistance] where evidence might be necessary to explain why certain actions were taken or omitted by counsel.”).

Finally, Beazley argues that the trial court erred in denying, in part, a motion for post-conviction relief with regard to the conviction for tampering. As noted, after Beazley’s conviction, Joseph Graves, the FDLE analyst who testified at Beazley’s trial as to the nature of the pills abandoned by Beazley, was arrested for trafficking of controlled substances taken from an FDLE laboratory. This court relinquished jurisdiction so that the trial court could consider a motion for post-conviction relief. While the trial court granted relief vis-a-vis the convictions for possession of a controlled substance, it did not grant relief as to the conviction for tampering with evidence because that conviction did not depend upon evidence being a controlled substance. Beazley argues the pills, regardless of whether they were shown to be controlled substances or not, were rendered inadmissible by virtue of the tampering committed by the FDLE analyst. Evidence for which there is some indication of probable tampering is inadmissible, notes Beazley. See § 90.901, Fla. Stat. (2013).

However, as the trial court found, the testimony of the FDLE analyst was not essential with regard to the tampering charge. It was the testimony of the arresting officer who had chased Beazley and who observed Beazley toss a bag of pills into a ditch which was dispositive as to that charge. Therefore, we affirm the denial of post-conviction relief on this ground, without prejudice to the appellant raising in another post-conviction motion to the issue of whether defense counsel was ineffective for failing to move for a judgment of acquittal as to the charge of tampering with evidence.

Because Beazley’s two convictions for resisting arrest arose from a single episode, we reverse one of those convictions, vacate the corresponding sentence therefor, and remand for entry of a corrected judgment and for resentencing. Resen-tencing will be dependent upon the outcome of a second trial on the possession charges, should the State wish to pursue such charges.

AFFIRMED, in part, REVERSED, in part, and REMANDED for further proceedings consistent with this opinion.

MAKAR, J., concurs, WETHERELL, J., concurs in result only.


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    Lawrence W. GORMAN, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 1D14-3566.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Lawrence W. Gorman, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Louis A. Gutierrez, Tallahassee, for Appellee.
   PER CURIAM.

Appellant has sought review of a final order of the Reemployment Assistance Appeals Commission, rendered on April 29, 2014. The notice of appeal, which was filed on July 8, 2014, failed to invoke the Court’s appellate jurisdiction in a timely manner. Fla. R. App. P. 9.110(b). Accordingly, the appeal is dismissed. Appel-lee’s motion to dismiss, filed on August 25, 2014, is denied.

WOLF, BENTON, and MAKAR, JJ„ concur.


text:
    Cardel SALMON-MAIR, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Iowa College Acquisition Corp., Appellees.
    No. 1D14-4159.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Cardel Salmon-Mair, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Louis A. Gutierrez, Assistant Court Chief, Tallahassee, for Appellees.
   PER CURIAM.

Appellant has sought review of an order vacating a decision of the appeals referee based on the referee’s failure to afford the employer due process of law and remanding the matter to the referee for further proceedings and rendition of a new decision. Because the order on appeal does not bring the administrative adjudicative process to a close, it is not a final administrative order. See Hill v. Division of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997). Consequently, this appeal is premature. Appellee’s Motion to Dismiss, filed on September 15, 2014, is granted and the appeal is dismissed for lack of jurisdiction.

WOLF, BENTON, and MAKAR, JJ., concur.


text:
    Sylvester SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-4310.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Bruce A. Miller, Public Defender, and Marshawn Griffin, Assistant Public Defender, Pensacola, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of September 18, 2014, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. The dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

WOLF, BENTON, and MAKAR, JJ„ concur.


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    Trimeka Shanta WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5829.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2014.
    Nancy A. Daniels, Public Defender, Tallahassee; Diana L. Johnson of Johnson and Lufrano, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General and Samuel Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal, Ms. Trimeka Wood challenges her sentence based on the trial judge’s statement that her sentence was based, in part, on her “continued denial of any culpability.” Our precedents make clear that a sentence conditioned, even in part, on a defendant’s “lack of remorse and claim of innocence” violates due process and warrants remand for resentencing before a new judge. Adkinson v. State, 133 So.3d 607, 607 (Fla. 1st DCA 2014); Dumas v. State, 134 So.3d 1048, 1048 (Fla. 1st DCA 2013); Jackson v. State, 39 So.3d 427, 428 (Fla. 1st DCA 2010); Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004).

Accordingly, we VACATE the sentence and REMAND for resentencing before a new judge.

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


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    In re J. Phil HANEY.
    No. 2013-B-0231.
    Supreme Court of Louisiana.
    April 5, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel seeks review of a recommendation of the disciplinary board that the formal charges against respondent, J. Phil Haney, be dismissed. Having reviewed the record and the briefs of the parties and the amici, we find the disciplinary board reached the correct result in dismissing the formal charges.

Accordingly, it is the judgment of this court that the formal charges against respondent be dismissed.


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    In re Roy M. MISITA.
    No. 2011-OB-2427.
    Supreme Court of Louisiana.
    April 23, 2013.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

11 Petitioner, Roy M. Misita, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) advised petitioner that it was unable to certify him for admission to the bar on character and fitness grounds, including (1) his failure to disclose a minor criminal matter on his law school application, (2) information from a law firm where he was formerly employed as a law clerk which revealed adverse information concerning his separation of employment; and (3) delinquent financial obligations.

On petitioner’s application to this court, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Petitioner testified at the hearing and explained the issues of concern to the Committee. Notably, petitioner’s former employer did not testify, nor did he provide the Committee with any documentation to corroborate his claims of difficulties experienced during petitioner’s tenure as a law clerk.

Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be conditionally admitted to the practice of law. Neither party objected to this recommendation.

Considering the commissioner’s recommendation, the absence of any objection from the Committee, and the entire record of this proceeding, we 12conclude petitioner is eligible to be admitted to the practice of law in Louisiana, subject to the following conditions:

I. The term of this conditional admission shall be for two years from the date of admission. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

II. Within thirty days of petitioner’s admission, he shall enter into a formal plan with the Office of Disciplinary Counsel (“ODC”) incorporating the following conditions:

A. During the period of this conditional admission, petitioner shall attend and successfully complete the Louisiana State Bar Association’s Ethics School program.
B. During the period of this conditional admission, petitioner shall provide evidence to the ODC, on at least a quarterly basis, demonstrating that he has made a good faith effort to satisfy his financial obligations.
C. Petitioner shall request that the ODC appoint a practice monitor to supervise his professional activities during the period of this conditional admission. Petitioner shall comply with all reasonable requests of his practice monitor.
D. Petitioner shall cooperate with the ODC, and shall comply with any and all requirements imposed upon him by the ODC.

III. Within thirty days prior to the expiration of the conditional admission, the ODC shall file a report in this court in which it sháll recommend to the court that the conditional admission be allowed to terminate or be extended.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his ^conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


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    In re Andrea O. NATHAN.
    No. 2013-OB-0666.
    Supreme Court of Louisiana.
    April 23, 2013.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

|, After reviewing the evidence and considering the law, we conclude petitioner, Andrea 0. Nathan, is eligible to be admitted to the practice of law in Louisiana, subject to the following conditions:

I. The term of this conditional admission shall be for two years from the date of admission. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

II. Within thirty days of petitioner’s admission, she shall enter into a formal plan with the Office of Disciplinary Counsel (“ODC”) incorporating the following conditions:

A. In addition to her ordinary mandatory continuing legal education requirements, petitioner shall complete an additional 15 hours of continuing legal education in ethics and professionalism for each year of her probationary period.
B. Petitioner shall request that the ODC appoint a practice monitor to supervise her professional activities during the period of this conditional admission. Petitioner shall comply with all reasonable requests of her practice monitor.
C. Petitioner shall cooperate with the ODC, and shall comply with any and all requirements imposed upon her by the ODC.

|aIII. Within thirty days prior to the expiration of the conditional admission, the ODC shall file a report in this court in which it shall recommend to the court that the conditional admission be allowed to terminate or be extended.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


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    In re David C. PELLEGRIN Jr.
    No. 2013-OB-0864.
    Supreme Court of Louisiana.
    April 23, 2013.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

11 After reviewing the evidence and considering the law, we conclude petitioner, David C. Pellegrin, Jr., is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of five years. The probationary period shall commence from the date petitioner, the Office of Disciplinary Counsel, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of the consent agreement executed by him with the Louisiana Supreme Court Committee on Bar Admissions, and such other conditions as may be imposed upon him by the Office of Disciplinary Counsel. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    Benjamin SHIPP, et al. v. ENTERGY LOUISIANA, L.L.C.
    No. 2013-CC-1514.
    Supreme Court of Louisiana.
    July 17, 2013.
   In re Entergy Louisiana, L.L.C.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2012-7676: to the Court of Appeal, Third Circuit, No. CW 13-00582.

h Granted. The trial court is ordered to grant relator a reasonable continuance and take other measures to ensure relator can meaningfully participate in trial, including, but not limited to, reopening discovery.